TaxTMI 
TaxTMI 
2025 (1) TMI 1827
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....der dated 18.12.2023, passed by the National Company Law Tribunal, New Delhi, Court No. III (in short 'Tribunal') by which an application filed by the Appellants bearing I.A No. 2791 of 2021 with the prayer to direct the RP to include the name of the Appellants in the category of 'Flat Buyers', has been dismissed. 2. The Appellants who are the father and daughter had applied for allotment of an apartment on 16th floor, D-1602, 4 BHK, Size 2225 Sq. Ft. for total sale consideration of Rs. 52,59,900/-in the project 'Casa Royale' at plot no. GH-10, Sector 1, Greater Noida West, Greater Noida, UP-201306, an undertaking by the Respondent/Corporate Debtor (CD) vide booking form dated 21.01.2019. A Builder Buyer's Agr....
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....olution plan submitted by consortium of M/s D S Infraheights Pvt. Ltd. and M/s Anand Buildtech Pvt. Ltd. which was approved by the CoC in its 26th meeting held on 19.08.2023 by 70.18% voting share. The RP of the CD submitted an application bearing I.A No. 4466 of 2023 for approval of the resolution plan in terms of Section 30(6) r/w Section 31 of the Code on 22.08.2023 which is pending adjudication. 7. When the Appellant came to know about the CIRP of the CD, they submitted their claim in Form CA being financial creditor on 25.02.2020 which was accepted by the earlier RP vide email dated 03.03.2020. 8. The Appellant No. 1, vide letter dated 19.11.2020 and email dated 20.12.2020 addressed to RP, withdrew the cancellation and opted for ....
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....ere held entitled to refund the money as the only remedy left. 12. The Tribunal found that RP had not committed any illegality with respect to the Appellants classification under the refund category and dismissed the application bearing I.A No. 2791 of 2021 on 18.12.2023. 13. Counsel for the Appellants has argued that though the Appellants had submitted cancellation certificate but it was clearly mentioned that the Appellant shall have no right over the property in question after taking the refundable amount, so far neither the amount has been refunded nor the document executed between the parties for the allotment of the flat was cancelled or terminated. It is further submitted that the Appellant had also sent a letter dated 19.11.20....
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....ed dated 05.07.2019 and it was agreed before the Mediator that the amount of the home buyers shall be returned. In the said case also, direction was issued to the RP to consider the claim of the said Applicants as home buyers/allottees and in this regard, the following observations have been made :- "10. We have heard the Ld. Counsel for both the sides and perused the petition, reply along with documents as well as written submissions filed by them. On an analysis of the averments and pleadings it is seen that the Corporate Debtor /Respondent has admitted the claim of the. Applicants and in the settlement before the mediation, it has also agreed to refund an amount of Rs. 30.40 Lakhs. In the said settlement deed, it is not mentione....
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.... and direct the Resolution Professional to consider the claim of Applicants at par with "Home buyers/ Allottees: other approved units sold and possession not yet given" and consequently extend same/identical benefits to the Applicants as are available to all other allottees/homebuyers. It is made clear that the Applicants shall remain liable to pay all balance * dues in terms of Builder Buyer Agreement and the Resolution Plan as may be approved by this Authority. Accordingly, IA is disposed of." 15. On the other hand, Counsel for Respondent has submitted that the claim of the Appellant cannot to be collated as homebuyer instead of financial creditor - in class - refund category because they have willfully and voluntarily surrendered thei....
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....ng refundable amount from the Company, I shall have no dues left with the Company in any manner whatsoever. It was also averred that "I agree to surrender all relevant original documents given by the company to me at the time of booking and later on, i.e. allotment letter, receipt etc. regarding the said unit". The Appellant made clear to the Respondent that they shall not have any right over the allotment of flat after taking refundable amount from the company which was a point from which the relationship between both the parties had come to an end but before the amount could have been returned by the Respondent, the Appellant served a letter dated 19.11.2020 in which it was clearly mentioned that the appellants have not received payment f....