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2026 (5) TMI 18
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....oresaid two orders, these two Appeals have been filed. 2. Brief facts of the case necessary to be noticed for deciding the Appeal are:- 2.1. A Real Estate Project namely- 'Kingsville' previously known as 'Sunshine Infinity' for construction of a building was started as slum rehabilitation project by one 'Grace Developers'. The project was transferred in the year 2009 to a company called 'Sunshine Housing and Infrastructure Private Limited' (SHIPL), by way of a Development Agreement. 'Sunshine Housing and Infrastructure Private Limited' started the project. The Appellant society was registered on 10.09.2018 consisting of homebuyers of the project. There being certain financial difficulties with 'Sunshine Housing and Infrastructure Private Limited', MoU dated 06.11.2018 was entered between the Appellant society and 'Sunshine Housing and Infrastructure Private Limited' where it was noted that the members of the society including the proposed members are responsible to pay collectively Rs. 28,05,60,738/-towards their balance payment. First party took responsibility to collect and pay aforesaid amount to second party i.e. 'Sunshine Infinity Co-operative Housing Society Limited' so....
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....IRP initiated against the Corporate Debtor. The said letter was also forwarded to the Resolution Professional of the Corporate Debtor. The Appellant wrote to Mr. Pratik Jayesh Vira on 14.03.2024 informing that with respect to corpus and additional corpus collected by society from its members' final settlement of the society with developer was made in the General Body Meeting held on 04.04.2023 and society its meeting dated 02.05.2023 had resolved and approved the full and final settlement of its claim against the developer, in response to which developer has complied with its obligation and had executed a registered Sale Agreement of the commercial unit on the ground floor. The letter sent by Mr. Pratik Jayesh Vira was objected by the society and was termed as misleading letter. On 14.03.2024, the Resolution Professional also wrote to the society to file its claim in the CIRP. The Resolution Plan received in the CIRP of the Corporate Debtor came for consideration which Resolution Plan was approved in the 9th CoC meeting held on 06.07.2024. 2.2. Appellant by e-mail dated 07.08.2024 sent its claim in Form C to the Resolution Professional. Resolution Professional on 14.08.2024 repl....
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....ieved by these two orders, these Appeals have been filed. 3. We have heard Shri Abhijeet Sinha, Learned Senior Counsel for the Appellant and Shri Krishnendu Datta, Learned Senior Counsel for the Respondent- Resolution Professional. 4. Shri Abhijeet Sinha, Learned Senior Counsel for the Appellant submitted that the claim filed by the Appellant was based on amount which was spent by the Appellant on behalf of the Corporate Debtor by making various payments to the Corporate Debtor as well as to the vendors of the Corporate Debtor. Relevant materials to prove the payments have been brought on record. Appellant after immediately becoming aware of the CIRP filed its claim on 07.08.2024 which claim was not verified by the Resolution Professional on account of the delay. It is submitted that due to financial problem of the Corporate Debtor under 2nd and 3rd MoU, corpus was raised by the Appellant and amounts were made to the Corporate Debtor towards completion of the construction and payment of certain taxes owe to the statutory authorities. The alleged settlement dated 02.05.2023 relied by the Resolution Professional was breached. Society has passed a resolution cancelling the settl....
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....REAS the "Party of the First Part" has requested "Party of the Second Part" to appoint another/additional Architect if required, to monitor completion of remaining construction of "The Said Project", and that the receivables of about Rs. 28,05,60,738/- (Rupees Twenty Eight Crore Five Lakh Sixty Thousand Seven Hundred Thirty Eight Only) from the Flat purchasers to be received and payments of vendor and contractors be made there from. "Party of the second part" also agrees to give the "Party of the First Part" confirmation note duly signed by the flat owners mentioning amount receivable from each such flat purchaser." 8. 'Sunshine Housing and Infrastructure Private Limited' which was developing the project had transferred the project as slump sale to SQ Infrastructure Private Limited, the Corporate Debtor and all rights and liabilities were undertaken by the Corporate Debtor of the developers. 2nd MoU dated 19.08.2019 and another MoU dated 23.03.2021 was entered into society with the Corporate Debtor. Under 1st MoU, society agreed to raise corpus of Rs. 9 Crore for completing the project. Under 2nd MoU, the Corporate Debtor needed a temporary stop gapping funding of Rs. 4.5 Crores....
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....wever, the Applicant filed the present I.A. on 11.10.2024. Considering the facts and the legal position, we are not inclined to buy the contention of the Applicant that it took time to collate relevant documents from the individual homebuyers as such contention is not supported by any evidence. 4.4. The Respondent/RP has submitted that the books of the CD do not reflect any amount due and payable to the Applicant. Further, the Respondent has relied upon the letter dated 14.03.2024, wherein the full and final settlement of the claim, by virtue of the Settlement Agreement with the developer, was reflected. Admittedly, the CD had already complied with the settlement by executing registered agreement the sale of commercial units on the ground floor of the 'Sunshine Infinity' in favour of the Society. The Society has also taken possession of the same, Further, pendency of approval of the Resolution Plan by the Adjudicating Authority, after the same having been approved by the CoC, is no ground for considering an invalid claim of the Applicant. Any challenge, at this juncture, to the decision of the Respondent/RP in rejecting the claim would amount to challenging the Res....
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....tion dated 11 March 2024 being addressed by the Resolution Professional, but more importantly, without prejudice to the fact that the claim of the Applicant itself is disputed, the Applicant consciously and deliberately did not file a claim with the Resolution Professional." 11. The letter written by member of the society Mr. Pratik Jayesh Vira to the Appellant dated 06.03.2024 which is brought on the record by the Appellant as Annexure 16 was written on the subject "Filing of claim before Resolution Professional in the Company Insolvency Resolution Process ("CIRP") Initiated upon SQ Infrastructure Pvt Ltd ("Developer")". In the said letter, the member of the society requested the society to file a claim within seven working days from the date of the letter. Copy of the order and commencement of the CIRP was forwarded by said letter. The said letter was also forwarded to the Resolution Professional. 12. The reply given by the society to the said letter is relevant for the entire controversy in the present case which letter has been filed by the Appellant as Annexure A-18 to the Appeal. It is useful to quote the entire letter written by Appellant copy of which also forwarded t....
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.... by delaying the same. 6. It is a matter of fact that the Society in its Special General Body Meeting held on 2 May 2023, had resolved and approved the Full and Final Settlement of the Claim of the Society against the Developer viz. SQ Infrastructure Pvt. Ltd.. 7. Accordingly, pursuant thereto the Developer has complied with its obligation and has executed and registered an Agreement for Sale in respect of the Commercial Units on the Ground Floor of Sunshine Infinity in favour of the Society and the possession whereof is also given to the Society. 8. The Society shall be selling the aforesaid Commercial Unit, and the proceeds thereof shall be distributed between the members in proportion to the amounts contributed by each member. 9. Hence, you are kindly requested to again take note of the same and restrain from addressing such misleading letters and give advice which is prejudicial to the interest of the Society and its members. 10. Also, please take note that the Developer has till date not confirmed that your transaction in respect of the Flat No. 2601 is complete, hence you arc kindly requested to get the same done at your earliest. ....
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....ved the Resolution Plan. The appellant having made the claim more than a year after the invitation of claims by the public notice dated 30.03.2019; it was urged that allowing such claims would set the clock back on the CIRP and set a precedent, thereby making CIRP prolonged and inefficacious. In support of this plea, reliance was placed on the judgment in Committee of Creditors of Essar Steel India Limited through Authorised Signatory v. Satish Kumar Gupta and Ors.¹, where this Court opined that a successful resolution applicant cannot be faced with undecided claims after the resolution plan has been accepted. This Court observed: "...A successful resolution applicant cannot suddenly be faced with "undecided" claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who would successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and....