TaxTMI 
TaxTMI 
2026 (5) TMI 1603
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....s. Ruchika Darira, Advocates for RP. Mr. Vivek Kohli Sr. Adv. with Mr. Sandeep Bhuraria, Ms. Vatsala Pandey & Ms. Vasudha Chadha, Advocates. JUDGMENT ASHOK BHUSHAN, J. These appeals have been filed challenging the common order dated 17.12.2024 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi, Court III in I.A. No.3739 of 2023, I.A. No. 5252 of 2023 and I.A. No.6314 of 2023 in CP IB No. 317/(ND)/2022. By the impugned order the Adjudicating Authority has rejected I.A. No.3739 of 2023, allowed I.A. No.5252 of 2023 and dismissed I.A. No.6314 of 2023. Aggrieved by the aforesaid order these appeals have been filed. 2. Company Appeal (AT) (Insolvency) No.164-166 of 2025 has been filed by the Phoenix ARC Pvt. Ltd., the Financial Creditor of the Corporate Debtor M/s Andes Town Planners Pvt. Ltd. challenging the order dated 17.12.2024 passed in I.A. No.3739 of 2023, I.A. No. 5252 of 2023 and I.A. No.6314 of 2023. Appellant in the appeal has prayed to set aside the order dated 17.12.2024 passed in the aforesaid I.As. 3. Company Appeal (AT) (Insolvency) No.266-268 of 2025 has been filed by M/s CIS Infrastructure LLP & Anr. challenging the order ....
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....he Corporate Debtor had alloted certain units in the New Tower Project. Details of existing allottees and booked units has been provided in Schedule 3 of the Development Agreement. Balance receivables from allottees were detailed in Schedule IV of the Agreement. M/s Halwasiya Developments Pvt. Ltd. was appointed as Development Manager for construction and implementation of project related work with respect to New Tower Project. The agreement contained various terms and conditions including rights and obligations of Development Manager. (iv) An Unregistered Power of Attorney was executed on 19.01.2018 by the Corporate Debtor in favour of M/s Halwasiya Developments Pvt. Ltd. A Consortium Agreement dated 05.09.2020 was also entered between the Corporate Debtor and M/s Halwasiya Developments Pvt. Ltd. (v) On an application filed under Section 7 by the Financial Creditor - Piramal Capital and Housing Finance Limited, successor in interest to Dewan Housing Financial Corporation Limited alleging debt and default on the part of the Corporate Debtor. (vi) The Adjudicating Authority vide order dated 02.03.2023 admitted Section 7 application and appointed Mr. Ashok ....
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.... No.3739 of 2023 filed by the Resolution Professional. Allowed I.A. No.5252 of 2023 filed by Halwasiay and rejected I.A. No.6314 of 2023 filed by Mrs. Nivedita Singhal and other homebuyers of project Ananta Residencies. All these appeals have been filed challenging above order dated 17.12.2024. Details of the appeals we have already noticed above. 7. The appeals were heard by this Tribunal on 28.02.2025, on which date following order was passed: "ORDER (Hybrid Mode) 28.02.2025: All these Appeals have been filed against an Order dated 17.12.2024 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi, Court - III), by which I.A. No. 3739/2023 filed by the Resolution Professional (RP), I.A. No. 6314/2023 filed by the Homebuyer and I.A. No. 5252/2023 filed by Halwasiya Developments Pvt. Ltd has been decided. I.A. No. 3739/2023 filed by RP has been rejected and I.A. No. 5252/2023 filed by Halwasiya Developments Pvt. Ltd. has been allowed and it was held that no Orders are required in I.A. No. 6314/2023. 2. Learned Counsel for the Appellants in these Appeals have raised various submissions questioning the Order impugned. It i....
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....ri Utkarsh Srivastava, Advocates have appeared for Appellant - CIS Infrastructure LLP and Anr. and Shri Aditya Madaan, Advocate has appeared for Appellant - Dr. Shravan Kumar Vishnoi. 9. Shri Amit Chadha, learned senior counsel appearing for the Financial Creditor - Phoenix ARC Pvt. Ltd. submitted that the Corporate Debtor has entered into registered Mortgage Deed dated 01.10.2014 with Dewan Housing Financial Corporation Limited, who was predecessor in interest of the Appellant, to secure the loan facility of Rs. 90 Crore granted to the Corporate Debtor. The mortgage was for entire land admeasuring 73,018.74 sq. mtrs along with unsold units, receivables of the project including project Ananta Residencies. It is submitted that the Corporate Debtor could not have entered into any Development Agreement with Halwasiya without obtaining a NOC from the Financial Creditor. The land and the entire project being charged with the Financial Creditor; no further encumbrances could have been created by the Corporate Debtor. The Development Agreement dated 19.01.2018 is unregistered document which was executed without obtaining NOC from the Appellant, hence, it could not have any effect on th....
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....rtaining to units of the project in favour of M/s CIS Infrastructure LLP whereas the Appellant M/s CIS Infrastructure LLP was not even impleaded as party in any of the applications. No submission with regard to claim of the Appellant could have been entertained, Appellant being not a party to the proceeding. It is submitted that even the Development Agreement which is claimed to be executed by Halwasiya on 19.01.2018 there is reference of units of the Appellant. Learned counsel for the Appellant submits that the Appellant having been allotted 16 units with regard to Ananta Residencies, the Corporate Debtor has also executed Sale Deed for 16 residential units to the Appellant. Appellant after coming to know that application has been made to change the nature of Ananta Tower from residential to commercial, raised objection to the Lucknow Development Authority in the year 2021. No response having been received from Lucknow Development Authority, the Appellant also filed a Writ Petition being Writ- C No. 7104 of 2022 before Allahabad High Court, Lucknow Bench, which was disposed of directing the Lucknow Development Authority to hear and decide the objection of the Appellant. The Appell....
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....Adjudicating Authority disregarded vested rights of the homebuyers. Appellant's prayer is to restore unified CIRP for all creditors of the Corporate Debtor. 12. Learned counsel appearing for the Resolution Professional challenging the order passed by the Adjudicating Authority rejecting I.A. No.3739 of 2023 submits that the Resolution Professional have every jurisdiction to file application under Section 60(5) and 19(2). The Adjudicating Authority committed error in rejecting application filed by the Resolution Professional as not maintainable whereas after commencement of the CIRP, the Resolution Professional is entitled to take possession of assets of the Corporate Debtor under Section 25 r/w Section 19(1)(f). It is submitted that the Halwasiya cannot claim to be no covered by Section 19. It at best has a Development Agreement with the Corporate Debtor, hence, was obliged to provide possession of the project Ananta Residencies and provide all relevant information and documents to the Resolution Professional. It is the Resolution Professional who has to conduct entire CIRP including the project Ananta Residency. The mere fact that there was a Development Agreement dated 19.01.2....
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....ubmitted that the Adjudicating Authority itself has noticed that more than 96% of the work is complete in the project. It is submitted that the change of project from residential cum commercial to commercial is with the consent of 92% allottees who had agreed for the change. There were 56 allottees in the residential units and now there are 126 commercial allotment. Shri Vivek Kohli, learned counsel appearing for Halwasiya conceded that Halwasiya is not claiming ownership rights in the existing units which were allotted in favour of different allottees and the Halwasiay under take to complete the construction regarding all existing allotees to handover the possession to the existing allottees after allottees comply their obligation to pay balance amount. It is submitted that Halwaisya is claiming right only in the unsold units which is the scheme as provided in the Development Agreement dated 19.01.2018. It is submitted by Shri Kohli that all rights which are given under the Development Agreement to the Halwasiys have to be realised. It is sumitted that NCLT never gave any ownership right to Halwasiya and they are only claiming development rights. It is submitted that Halwasiya has....
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.... (f) take control and custody of any asset over which the corporate debtor has ownership rights as recorded in the balance sheet of the corporate debtor, or with information utility or the depository of securities or any other registry that records the ownership of assets including- (i) assets over which the corporate debtor has ownership rights which may be located in a foreign country; (ii) assets that may or may not be in possession of the corporate debtor; (iii) tangible assets, whether movable or immovable; (iv) intangible assets including intellectual property; (v) securities including shares held in any subsidiary of the corporate debtor, financial instruments, insurance policies; (vi) assets subject to the determination of ownership by a court or authority;" 17. Further Section 25 of the I&B Code also obligate the Resolution Professional to preserve and protect the assets of the Corporate Debtor and take custody and control of the assets of the Corporate Debtor, including business records of the Corporate Debtor. Section 25(1) and (2) are as follows: "Section 25: Duties of resolution professional - (1) It sha....
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.... being constructed. The prayers made in I.A. No.3739 of 2023 has been noticed in Para 1A of the impugned order, which are as follows: "A. IA-3739 /2023 has been filed by Mr. Ashok Kumar Gupta, the Applicant/RP, under Section 60(5) read with Section 19(2) of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of the National Company Law Tribunal Rules, 2016 before this Adjudicating Authority. The Applicant seeks the fallowing reliefs: "a. Allow the present application; b. Direct the Respondent to stop the construction and handover the possession of the project Ananta Residence immediately to the applicant; c. Direct the Respondent to provide all details/documents/ information of the project to the RP for carrying out Corporate Insolvency Resolution Process; d. Pass such other further order/ order(s) as may be deemed fit and proper in the facts and circumstances of the case."" 19. The application filed by the Resolution Professional was under Section 60(5) r/w Section 19(2). The Resolution Professional after commencement of the CIRP has sent information to Halwasiya Developments Pvt. Ltd. and several emails and written letter dat....
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....of contractual rights of the parties emanating from the Development Management Agreement dated 19.01.2018 which was entered into way before initiation of CIRP proceedings dated 02.03.2023. We therefore, agree with the submissions made by the Mr. Vivek Kohli, Ld. Senior Counsel appearing for Respondent and answer this issue in favour of the Respondent and hold that the issues raised in this application by the Applicant relate to Contractual disputes not arising out of the CIRP and therefore the instant application filed under Section 60(5) is misconceived and cannot be entertained." 21. In Para 39 and 40 of the impugned order, following further has been observed: "39. A perusal of the definition of the word 'consideration' as defined under Section 2(d) of the Indian Contract Act, 1872 and the law laid down by the Hon'ble Supreme Court in Regional Provident Fund Commissioner (supra) and in Shiv Kumar Joshi and Sonia Bhatia (supra), makes it clear that in the present case, the Respondent i.e. M/s. Halwasiya Developments Private Limited has established that consideration was paid in terms of the Development Management Agreement dated 19.01.2018, Power of Attorne....
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....operty in question would constitute "asset" within the meaning of Section 1 B(f) and Section 25(2)(a) of IBC." Therefore, the Respondent has right to develop the project in question." 22. Application filed by the Resolution Professional was under Section 60(5) and 19(2). We need to first notice Section 19. Section 19(1) and (2) provides as follows: "19. (1) The personnel of the corporate debtor, its promoters or any other person associated with the management of the corporate debtor shall extend all assistance and cooperation to the interim resolution professional as may be required by him in managing the affairs of the corporate debtor. (2) Where any personnel of the corporate debtor, its promoter or any other person required to assist or cooperate with the interim resolution professional does not assist or cooperate, the interim resolution professional may make an application to the Adjudicating Authority for necessary directions." 23. Section 19(2) is in very wide term, which oblige any personnel of the Corporate Debtor, its promoter or any other person required to assist or cooperated with the Interim Resolution Professional. The claim of Halwas....
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....and assigned the Mortgagee exclusive mortgage/ charge of the property as mentioned in Schedule 1 to 3. Clause 2 of the Mortgage Deed provides as follows: "2. In consideration of the said loan lent and advanced/agreed to be lent and advanced or continued by the Mortgagee to the Borrower, the Mortgagors/Borrower do hereby grant, transfer, assign and assure unto the Mortgagee, as and by way of SIMPLE MORTGAGE but without possession as first and exclusive mortgage/charge, the property as mentioned in the Schedule I to III hereunder written TOGETHER WITH ALL AND SINGULAR the construction present and future, wells, waters, water courses, ways paths, passages, lights, liberties, privileges easements, advantages and appurtenances whatsoever to the said lands, hereditaments and premises appertaining to or with the same or any part thereof, now or heretofore belonging or occupied or enjoyed or reputed or known as part and parcel and member thereof or appurtenant thereto AND ALL THE estate, rights, title, interest, property, claimed and demands of the Mortgagors into and upon the said property hereby granted, transferred and assured as aforesaid or intended so to be AND all the docum....
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.... 28. Certain clauses of Development Agreement dated 19.01.2018, which have been referred to and relied by the parties need to be noticed. The Development Agreement was entered between the CD and Halwasiya with respect to New Tower/ New Tower Project. Recitals (A) (a) to (e) mention that New Tower Project to be developed on the identified and demarcated portion of land admeasuring 4,623.92 square meters, sub-clause (e) is as follows: "e) Thereafter, ATPPL also started the construction of a new tower comprising of multistoried residential cum commercial tower under the name and style of stylus tower as per the sanctioned building plans (hereinafter referred to as "New Tower"/ "New Tower Project") on a part of the said Land and being developed on the identified and demarcated portion of land admeasuring 4,623.92 square meters approximately as more clearly depicted in yellow color in Schedule I attached hereto (hereinafter referred to as "Portion 'B' Land"). The permissible Floor Area Ratio (FAR)/ FSI already approved/ sanctioned and additional FAR/FSI available as per currently applicable norms is as more particularly detailed in Schedule II." 29. Clause (f) also ....
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....ted in Schedule II." 32. Clause 4 dealt with "Conditions Precedent". One of the condition precedent under Clause 4.1.4 is to obtain NOC from DHFL. Clause 4.1.4 is as follows: "4.1.4 ATPPL shall have applied for obtaining a letter/ NOC from DHFL in form as required and to the satisfaction of the Development Manager keeping Development Manager in loop in all communication/ correspondence with DHFL, for confirming that (i) the mortgage and charge on Unsold Area and on any additional FAR/FSI for the New Tower has been released, and (ii) that DHFL has no charge, mortgage, lien or other encumbrance on the Unsold Area;" 33. A New Tower Collection Account was to be opened and was to be operated by Development Manager. Clause 2 deal with "Development Management Fee and Payments". Clause-7 of the Development Agreement had acknowledged the simple mortgage dated 01.10.2014. Clause-8 dealt with 'Obligation of ATPPL (CD)'. Clause 8.1.3 provided that title to New Tower Project shall be marketable to the CD. Clause 8.1.3 is as follows: "8.1.3 Keep its title to New Tower Project and Portion 'B' Land clear and marketable during the continuance of this Agreement." 3....
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.... the details of existing allottees and booked units. Schedule-IV deals with "Balance receivables from existing allottees against basic sale price of booked units". Schedule-V dealt with "Development services by the Development Manager". 38. We also need to notice certain Clauses of Consortium Agreement dated 05.09.2020, which was a registered Agreement entered between the CD and Halwasiya. Halwasiya was referred to as Lead Developer and CD was referred to as Consortium Member. Clause 2 dealt with "Aim and Scope of Consortium Agreement". Clause 2.2 provides as follows: "2.2 The Lead Member shall solely by its signature prepare and submit a proposal and map for the sanction/ approval for development of project and shall design, develop, finance, construct, sell, operate and maintain the said project, correspond and deal with UP RERA Authority, allottees / buyer (old as well as new), resident welfare association and other competent authorities/ departments, etc." 39. Shri Vivek Kohli, learned Senior Counsel for the Halwasiya has relied on various judgments to support the development rights of Halwasiya. Learned Counsel has referred to judgment of the Hon'ble Supreme Cou....
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.... developer to develop a plot of land which is occupied by slum dwellers and which has been declared as a slum. Alternately, there may be old and dilapidated buildings which are occupied by a number of occupants or tenants. The developer may undertake to rehabilitate the occupants or, as the case may be, the slum dwellers and thereafter share the saleable constructed area with the owner." 40. It was held by the Hon'ble Supreme Court that when a pure construction contract is entered, the contractor has no interest in either the land or the construction, which is carried out. But in various other categories of Development Agreements, the Developer may have acquired a valuable right either in the property or in the constructed area. In Paragraphs 18-19 of the judgment, the Hon'ble Supreme Court has laid down following: "18. When a pure construction contract is entered into, the contractor has no interest in either the land or the construction which is carried out. But in various other categories of development agreements, the developer may have acquired a valuable right either in the property or in the constructed area. The terms of the agreement are crucial in determining ....
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.... the developer, it may be difficult to hold that the agreement is not capable of being specifically performed. For example, the developer may have evicted or settled with occupants, got land which was agricultural converted into non-agricultural use, carried out a partial development of the property and pursuant to the rights conferred under the agreement, created third-party rights in favour of flat purchasers in the proposed building. In such a situation, if for no fault of the developer, the owner seeks to resile from the agreement and terminates the development agreement, it may be difficult to hold that the developer is not entitled to enforce his rights. This of course is dependent on the terms of the agreement in each case. There cannot be a uniform formula for determining whether an agreement granting development rights can be specifically enforced and it would depend on the nature of the agreement in each case and the rights created under it." 41. When we look into the Development Agreement dated 19.01.2018 entered between the CD and Halwasiya, the consideration for execution of Development Agreement is duly reflected in the Agreement. The CD started the construction of....
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....CC (Civ) 590], this Court brought out the distinction between different types of development agreements, with particular reference to Section 14(3)(c) of the Specific Relief Act, 1963. After summarising the different types of development agreements in para 17 of the decision, this Court held in para 19 as follows : (SCC p. 251) "19. ... An essential incident of ownership of land is the right to exploit the development potential to construct and to deal with the constructed area. In some situations, under a development agreement, an owner may part with such rights to a developer. This in essence is a parting of some of the incidents of ownership of the immovable property." 40. Therefore, it is not very difficult to conclude, that a bundle of rights and interests were created in favour of the corporate debtor, by a series of documents such as (i) the MoU dated 24-1-2008; (ii) the shareholders' agreement dated 24-1-2008; (iii) the flow of the consideration from the corporate debtor to the UCO Bank and to Energy Properties; (iv) the development agreement dated 16-6-2008; (v) the memorandum recording possession dated 2-3....
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....utory or conditional contract amounts to an asset. The protection of Section 14 is confined to existing, subsisting and enforceable rights as on the date of commencement of the CIRP." 46. Thus, the proposition laid down by the Hon'ble Supreme Court is well settled that development rights also constitute an asset of the Developer. In the present case, the right which is claimed by the Halwasiya is the right flowing from the contract and MoU between the CD and the Halwasiya. The ownership rights of the CD on the project Ananta Residency is not even disputed. Even in the Development Agreement dated 19.01.2018, the mortgage/ charge of the DHFL has been noticed. Schedule-II of the Development Agreement contains details of existing allottees. The project Ananta Residency, thus was charged with the Lender and there were existing allottees, which was even noticed in the Development Agreement. Learned Counsel for the Financial Creditor has submitted that it is a fact that Development Agreement contemplated obtaining NOC from the Lender, which was never obtained by the CD. The impact of not obtaining NOC from the Lender clearly means that charge of the Lender continues on the project Anan....
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....s an asset of the Respondent/Developer within the meaning of Sub-Section 27 of Section 3 of the Code". 49. The Development Management Agreement dated 19.01.2018 and Power of Attorney dated 19.01.2018 were both unregistered documents and by the above two documents no right in immovable property can be created. It is well settled that rights in immovable property can be created only by registered document under Section 17 of the Registration Act. Learned counsel for the Financial Creditor has relied on judgment of Hon'ble Supreme Court in "(2023) 20 SCC 655, Shakeel Ahmed vs. Syed Akhlaq Hussain" where in Para 11, 12, 13 and 14 following was held: "11. Having considered the submissions at the outset, it is to be emphasised that irrespective of what was decided in Suraj Lamp & Industries the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered agreement to sell or on the basis of an unregistered general power of attorney. 12. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable righ....
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....ts and land owners of the assets had entered into collaboration agreement. In the above case, following observations were made by this Tribunal in Para 64: "64. While answering the Question No. (I) as above, we have already held that the development rights claimed by the corporate debtor is a property within the meaning of Section 3(27) and the RP has to include the assets in which the corporate debtor has development rights." 51. In the above case, the development rights were covered within definition under Section 3 Sub-section 27, hence, the Resolution Professional has included assets in which Corporate Debtor has development rights. In the present case, CIRP has not commenced against Halwasiya rather CIRP has commenced against the Corporate Debtor. Corporate Debtor admittedly has ownership right in the entire land and projects including project Ananta Residency. We, thus, are unable to uphold that observation made by Adjudicating Authority in para 39 that property has become asset of the Developer. The Adjudicating Authority in the impugned order has also referred to the judgment of Hon'ble Supreme Court in (2022) 2 SCC 583 Tata Consultancy Services Ltd Vs. Vishal G....
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....ing I.A. No.3739 of 2023 cannot be sustained and the application I.A. No.3739 of 2023 deserves to be allowed in the manner as indicated above. 53. In view of the foregoing discussions, we answer Question Nos.1, 2 and 3 in following manner: Answer to Question No.1. : Application filed by RP under Section 19 sub-section (2) and 60(5) being IA No.3739 of 2023 was maintainable against M/s Halwasiya Developments Pvt. Ltd. Answer to Question No.2. : On the basis of Development Agreement dated 19.01.2018, Power of Attorney dated 19.01.2018 and Consortium Agreement dated 05.09.2020, M/s Halwasiya Developments Pvt. Ltd. cannot claim any ownership rights in the project - Ananta Residencies with respect to allotted Units and unsold Units. Answer to Question No.3. : RP had made out a case in IA No.3739 of 2023 for grant of prayers as indicated in preceding paragraphs of this judgment. Question No.4 54. We have noted the relevant clauses of Mortgage Deed created in favour of DHFL dated 01.10.2014. The mortgage was created with entire land of 73,018.74 Sq. Meters along with all receivables by sale of lease, leave and license of units. The Mortgagor has also cl....
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....o: (a) direct the Respondent to withdraw the letter dated 21.06.2023 sent to Lucknow Development Authority (LDA), (b) to direct the Respondent to continue the business of the Corporate Debtor as a going concern, (c) restrain the Respondent from creating hindrances in completion of the Construction of the project and (d) to direct the IBBI to initiate the disciplinary proceedings against the Respondent. ii. In IA-3739/2023, we have held that the Applicant/M/s. Halwasiya Developments Private Limited (Respondent in IA-3739/2023 ) has the development rights by virtue of the Development Management Agreement dated 19.01.2018, Power of Attorney dated 19.01.2018 and Consortium Agreement dated 05.09.2020 and further in view of the law laid down by the Hon'ble NCLAT in the case of K.H. Khan and Anr. (supra) and the Hon'ble Supreme Court in Victory Iron Works Ltd. (supra) the Applicant has a right to develop the property in question. iii. Therefore, we direct Respondent/Resolution the Professional not to create any hindrance in the completion of the construction of the project i.e. "ANANTA Residences" by the Applicant/M/s. Halwasiya Developments Private Limi....
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....existing structure was to be converted into two basement + ground + 12 floors for commercial units. The Appellant in Company Appeal (AT) (Ins.) No.266-268 of 2025 had filed the objections and also filed the Writ Petition No.7104-7105 of 2022 before the Allahabad High Court seeking time bound resolution of its objection. The High Court vide order dated 11.10.2022 directed that representation must be looked into and decided. The CIRP having commenced in the meantime, learned Counsel for the LDA had made a submission before the High Court that in view of commencement of CIRP, no decision can be taken. It is submitted by learned Counsel for the Appellant in Company Appeal (AT) (Ins.) No.266-268 of 2025 that revised Plan was released to Halwasiya only after impugned order is passed. The LDA vide order dated 08.07.2025 has disposed of the objection, which order of LDA is again being challenged by M/s CIS Infrastructure LLP and Anr. in the High Court being Writ Petition No.7740 of 2025, which is pending on the date. 61. Learned Counsel for the Appellant appearing in Company Appeal (AT) (Ins.) No.266-268 of 2025 submits that consent of the allottees as required under Uttar Pradesh Apart....