TaxTMI 
TaxTMI 
TaxTMI 
2026 (2) TMI 240
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..... Hari Singh, Mr. Kulbhushan Yadav, Mr. Santosh Kumar Srivastava, Mrs. Reetika Mittal, Mr. Satendra Kumar, Mr Vinod Kumar Gupta, Mrs. Satinder Kaur, Mrs. Vinita Chauhan, Mr. Sanjay Kumar, Mr. Krishna Kumar Pandey, Mr. Arun Kumar Verma, Mr. Surendra Pal Sharma, Mr. Jagdish Chandra, Mr. Janardan Baruah, Mrs. Brinda Basu (Roy), Mr. Taranjot Kaur Saini, Mr. Ravinder Singh Saini, Mrs. Monika Kaur Chamdal, Mr. Hemant Mirchandani, Mr. Mohd. Istiyaq Siddiqui, Mr. Sunil Kumar Pandey, Mr. Zahid Hussain Mir, Dr. Abdul Majeed Dar, Mr. Ravi Shankar Prasad Sinha, Mr. Dharam Prakash, Mr. Hemendra Swaroop, Mrs. Rajvanti Kaushik, Mr. Bikram Singh Negi, Mr. Sujit Kumar Singh, Mr. Arvind Sharma, Mr. Veena Gupta, Mr. Deepak Grover, Mr. Jagdish Singh, Mr. Saroj Kumar Mishra, Mrs. Hemlata Shukla, Mrs. Malavika Choudhury, Mr. Surat Singh Chauhan, Mr. Subhash Chand, Mr. Mohd Sayeed, Mrs. Poonam, Mr. Shobha Kumari, Mr. Prashant Singh, Mr. Ghulam Mohd Wadoo, Dr. Bhabani Prasad Khound, Mr. Kuldeep Kumar Zalpuri, Mr. Kuldeep Kumar Zalpuri, Mrs. Qurisha Ayub Shah, Mr. Inderpal Singh, Mr. Shripal Yadav, Mr. Mohd. Arif Masood Naqash, Mr. Swaroop Saha, Mr. Sunil Pandey, Mr. Chetan Singhal, Mr. Gaurav Malik, Mr. J....
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....ng, and some construction; Raus Infras Limited for construction; and Shalini Holdings Limited for administration. 6. The Appellants submitted that ETIPL was incorporated as a Special Purpose Company on 21.07.2010, approved by GNIDA on 20.08.2010, and a registered Lease Deed dated 01.09.2010 was executed in favour of ETIPL for the subject property. 7. The Appellants contended that a Development Agreement dated 09.09.2010 was executed between ETIPL and EIL, granting EIL development rights on the land while ETIPL retained leasehold rights, with built-up area sharing at 18% for ETIPL and 82% for EIL and GNIDA sanctioned the building plan for ETIPL. 8. The Appellants submitted that the total units in "Earth Towne" are 3400, with ETIPL's 18% share being 612 units, of which ETIPL sold 220 units to allottees, including the Appellants. Thus, the threshold under the second proviso to Section 7(1) of the Code requires a minimum of 22 allottees (10% of 220) for filing against ETIPL. 9. The Appellants contended that the Adjudicating Authority wrongly applied the threshold based on the entire project's ignoring ETIPL's distinct share and sales, and failed to note that eve....
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....96/2023 maintainable. 15. The Appellants contended that the cause of action arose on 31.12.2021 due to non-completion, leading to filing CP (IB) 196/2023 with 146 allottees. Notice was issued on 12.04.2023; ETIPL was set ex-parte on 19.07.2023. Orders were reserved on 21.08.2023 but de-reserved on 31.10.2023 due to ETIPL's struck-off status. The Appellants submitted that ETIPL's name was restored vide order dated 01.04.2024 in Company Appeal No. 302/2023 under Section 252 of the Companies Act, 2013. 16. The Appellants contended that intervening applications IA No. 1741/2024 and IA No. 1989/2024 by Earth Towne Welfare Association seeking dismissal were considered, but the Impugned Order dismissed IA No. 1989/2024 while erroneously dismissing the main petition. 17. The Appellants submitted that in clarification affidavit dated 23.07.2024, it was affirmed that about 130 of 146 Appellants filed claims in EIL's CIRP, but this does not bar proceedings against ETIPL, as affirmed in Anjani Kumar Prashar v. Manab Datta & Ors., Company Appeal (AT)(Ins.) 1366/2023, allowing simultaneous claims against developer and landowner for the same project. 18. The Appellants con....
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....thority vide order dated 09.07.2024 asked for a clarification pertaining to claims admitted of Homebuyers of Corporate Debtor i.e. Earth Towne Infrastructure Pvt. Ltd. in the Resolution Plan of EIL. The Applicant/homebuyer submitted that around 130 homebuyers of 146 present applicants had filed their claims before EIL, The Resolution Professional of EIL in its Affidavit has submitted that it has accepted claims of around 1818 Allottees/Homebuyers of the Earth Towne Infra and annexed copy of list of admitted claims of creditors/homebuyers under the CIRP which has been marked as Annexure-C in reply filed by in IA/ 1989 /2024. 26. On perusal of the Affidavit of Admitted claim of Claimants of Earth Towne Project this Adjudicating Authority finds that more than 80 applicants out of 146 Applicants/ Homebuyers in present application have their claims admitted in the CIRP of EIL. 27. The Adjudicating Authority observes that the majority of home buyers of the corporate debtors are the same individuals listed as creditors in the CIRP of EIL. It is pertinent to note that around 80 out of 146 Applicants in the current company petition are already beneficiaries of the Resoluti....
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.... estate project or not less than ten per cent. of the total number of such allottees under the same real estate project, whichever is less:.......] (Emphasis Supplied) From above, it is clear that the threshold is 100 allottees or 10% of the total number of such allottees, whichever is less. On the other hand, the Adjudicating Authority has recorder that "the remaining number of applicants are approximately 66, which does not meet the threshold of one hundred applicants as specified in the Code." Thus, we find that the Adjudicating Authority clearly erred in evaluating the threshold. We hold that Impugned Order contains apparent legal error. 28. We further note that the Corporate Debtor is the land owner and developer for the project initiated by EIL which is holding company of the Corporate Debtor. We further note that the GNIDA allotted Plot No. GH-04, Sector-01, Greater Noida, measuring 73,942 sq. mtrs., to consortium led by EIL (78% share) along with two other companies, namely, Raus Infras Limited (11%) and Shalini Holdings Limited (11%) and subsequently MoU was singed amongst all these three entitles on 12.01.2010. It is significant to note that after signing o....
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....red to the First Party by the Second Party after deduction of charges as stipulated in this Agreement. From above development agreement dated 09.09.2010, it becomes very clear that there was a clear understanding between the Corporate Debtor and the EIL, who were declared as first party and second party, respectively. The first party was authorised to develop construct, market and sale/ sub-lease of project. We further note that second party i.e., EIL approached first party/ Corporate Debtor and signed MoU dated 22.07.2010. We also note that the rights and obligations including financial arrangements between the Corporate Debtor and EIL were elaborated in development agreement. There was a clear agreement for sharing consideration between both the parties i.e., Corporate Debtor getting 18% and EIL getting 82% of consideration based on developed super area of the said project. 31. We find that taking into consideration the above development agreement, if total unit of project "Earth Towne" which is stated to be 3400 as per the Appellants, the 18% share of the Corporate Debtor works out to 612 units/ apartments. The Adjudicating Authority has recorded that number of allottees a....
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....as held that of providing effective resolution to the Homebuyers in Real Estate Project both the company involved in the same company being land owning and other being developer can be clubbed together. 38. As far as, the present appeal is concerned, one judgement has been delivered by this Appellate Tribunal in the matter of Mist Avenue Pvt. Ltd. vs. Nitin Batra passed in Company Appeal (AT) (Ins.) No. 127 of 2023 and this becomes relevant, wherein it was held that filing of applications against two or more Corporate Debtor who were part of the same project are maintainable. The relevant para of the said judgment reads as under :- "24. From the Judgments delivered by this Tribunal as noted above, it is clear that with regard to Real Estate Projects, this Tribunal has accepted the filing of Application against two or more corporate debtors who were part of the project and the said applications were held maintainable. In the present case, the Adjudicating Authority after noticing the terms and conditions in the collaboration agreement had made following observations in paragraph 14-15 of the Judgment: "14. Therefore, it is clear that the subsequent to the cancel....
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....ion 7 is maintainable." (Emphasis Supplied) We find above ratio is squarely applicable in present case. 39. It has further been brought out before us by the Appellants that even in the present case, CIRP was initiated against another subsidiary of EIL, which owned land for another project i.e. "Earth Iconic". It is stated that the Adjudicating Authority admitted the landowner company namely Celestial Estates Pvt. Ltd. when the CIRP of EIL i.e. the developer company was already underway and claims of the same Allottees admitted in the CIRP of EIL. We find that the Adjudicating Authority should have considered application of the Appellants in similar manner. 40. Coupled with the aforesaid facts, the non-appearance of the Corporate Debtor before this Appellate Tribunal as well before the Tribunal (and at both courts the Corporate Debtor was proceeded ex-parte) would also indicate that the Corporate Debtor had scant respect for the judicial process. We also find that the Appellants have clear case in their favour to initiate Section 7 application before the Adjudicating Authority. 41. At this stage, we will like to record that we are not expressing anything on the merit ....
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....Auw., Sign. Document 3 APARTMENT BUYER'S AGREEEMENT For Residential Apartment in the Project "Earth Towne" (AT GH-04, SECTOR-1 GREATER NOIDA (WEST) UP) This Apartmant Buyer's Agreement (herein after referred to as the "Agreement") made at New Delhi on this Sep 04, 2015. BY AND BETWEEN: M/s Earth Infrastructures Ltd., al company Incorporated as per provisions of Companies Act. 1956 having Registered Office at 26. First Floor, Pusa Road, Karol Bagh, New Delhi-110005 (herein after referred to as the "Company") represented through its authorized signatory Mr. Naveen Goel duly authorized vide board resolution(The expression 'Company" shall, unless repugnant to the meaning of context herein. be deemed to mean and Include its authorized representatives, nominees, administrators. successors-in-interest, executors and assigns)of the ONE PART. AND M/s Earth Towns Infrastructures (P) Ltd., & company incorporated as pre provisions of Companies Act, 1956 having its registered office at 26, First Floor, Pusa Road, Karol Bagh, New Delhi-11005, [hereinafter referred to as the "Land Owning Company" or "ETIPL" ) represented through its authorized signatory Mr. Sanjeev Khawasia ....