2026 (5) TMI 1676

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....The material facts are: a) On 02.07.2015, the respondent had entered into an agreement for the purchase of a commercial unit with the CD. As per the agreement the unit was to be handed over to the respondent on 30.09.2015. The respondent has fully paid the consideration payable for the office unit to be purchased. The CD, however, did not deliver the unit as agreed upon. b) The respondent, therefore, preferred a complaint with the RERA and vide its order dated 08.10.2020, the RERA dismissed the said complaint of the respondent. Challenging the said Order, on 17.12.2020, the respondent preferred an appeal to RERAA. Notice was ordered. According to the respondent, a notice was sent to the promoter of the project, the corporate debtor to be, through speed post, was served on it on 19.12.2020. c) While the appeal preferred by the respondent was pending before the RERAA, CIRP commenced against the promoter of the project, vide the Order of the Adjudicatory Authority dated 04.10.2021. With that moratorium under Sec.14 of the Code came into force, IRP replaced the Board of the Corporate Debtor. d) The IRP issued public notice inviting claims. The last d....

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....d 08.12.2023] where it has been held that any proceedings held during the period of moratorium is void and are incapable of creating enforceable rights. b) If the Order passed initially by RERA is considered, it discloses that the respondent's complaint has been the delay on the part of the CD in handing over possession of the office premises purchased. However, this complaint was dismissed by the RERA on 08.10.2020, on the ground that the delay in delivery was due to the delay in obtaining the Occupancy Certificate from the authorities. And, the agreement between the respondent and the CD provided for such a contingency, which binds the respondent herein, which the RERA had taken note of. c) The next aspect is that on the admission of the CD to CIRP, the appellant duly issued a public notice through paper publication dated 21.10.2021 and invited claims from the creditors to be submitted by 05.11.2021. It was submitted that publication in newspapers in terms of Regulation 6 constituted a deemed notice to all creditors, including the respondent, terms of the dictum in M/s RPS Infrastructure Ltd. Vs Mukul Kumar & another [(2023) 10 SCC 718]. But the appellant has fi....

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....], the Hon'ble Supreme Court has held that any adjudicatory proceedings may continue during moratorium and that only recovery is prohibited. Therefore, the order passed by the RERAA is valid and binding upon the Corporate Debtor as well as the RP. c) So far as the allegation that the claim was preferred belatedly is concerned, the respondent could not have filed its claim prior to the adjudication of the proceedings before the RERAA, since the claim crystallised only upon the order dated 30.06.2022 directing payment of interest to the Respondent. Immediately thereafter, the Respondent informed the RP by email dated 01.07.2022 and sought guidance for filing its claim under the Code, and subsequently filed its claim in Form B on 19.07.2022 at the earliest possible opportunity. Hence, there was no delay attributable to the Respondent in lodging its claim. d) At any rate, Sections 18, 25 and 29 of the IBC read with Regulation 36 of the CIRP Regulations create a statutory obligation on the IRP or the RP, as the case may be, to collect and collate all claims against the corporate debtor and to keep itself apprised of all pending litigation involving the CD. The Informat....

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....he code prohibits 'the continuation of pending suits or proceedings against the corporate debtor including execution of the judgement, decree or order in any court of law, tribunal or beneficial interest therein", the Order of the RERAA will necessarily come under the scanner of the Code. The idea behind moratorium, as contemplated under Sec.14, is to freeze the assets and liabilities of the CD during CIRP for optimizing the value of the assets of CD to enable a successful resolution process and pay off the liabilities of the CD out of the proceeds of the resolution process in the manner contemplated under Sec.53 of the Code. In ABG shipyard case [(2023) 1 SCC 472], the Hon'ble Supreme Court has observed (paragraph 38), "Section 14 of the IBC prescribes a moratorium on the initiation of CIRP proceedings and its effects. One of the purposes of the moratorium is to keep the assets of the corporate debtor together during the insolvency resolution process and to facilitate orderly completion of the processes envisaged under the statute." 6.2 Turning to the effect of the moratorium in P. Mohanraj case [(2021) 6 SCC 258], the Supreme Court has held that the moratorium operates absolut....