TaxTMI 
TaxTMI 
2026 (7) TMI 168
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....ted 21.11.2024 passed by the Ld. National Company Law Tribunal, Mumbai Bench-II (Adjudicating Authority), in I.A. No. 3390/2024, in C.P.(IB) No. 2517/MB/2018 whereby the Adjudicating Authority dismissed the application of the Appellant for excluding the Flat No. 1002 on the 10th Floor in "Vermont" Wing of project of the Corporate Debtor, which was purchased by them, from the resolution process of the Corporate Debtor. 2. The Appellants asserts that Mr. Arun Kapoor Resolution Professional/Respondent No. 1 had failed to consider that the Appellant had submitted all the documents through email to the RP on 11.06.2024 and RP vide email dated 12.06.2024 informed the Appellants that the claim cannot be accepted as being submitted at a belated stage and since the resolution plan has already been approved by the CoC and reserved for orders by the Tribunal. The Appellants assert that the records of the Corporate Debtor also reflect that they had a valid Builder-Buyer- Agreement for the aforesaid flat and they had paid the full consideration amount to the builder but the same was not taken into consideration by the RP or the Adjudicating Authority. Aggrieved by the impugned order the Appe....
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....4 to the tune of Rs. 42,00,000/- along with interest w.e.f. 02.02.2015 till the date of payment at the rate of 24% to the Respondent No. 1. However, the Respondent No. 1 vide email dated 12.06.2024 informed the Appellants that the claim cannot be accepted as being submitted at a belated stage, since the resolution plan has already been approved by the CoC and reserved for orders by the Tribunal. The Resolution Plan was later approved by the Ld. Adjudicating Authority on 27.08.2024. vii. Thereafter, the Appellants file an interlocutory Application bearing IA No. 3390/2024 before the Hon'ble NCLT, Mumbai Bench in June 2024 seeking directions to be passed to the Respondents to jointly, severally or individually exclude the Flat No. 1002 on the 10th Floor in "Vermont" from the aforesaid project of the Corporate Debtor from the resolution process. The said Application filed by the Appellants was dismissed by the Hon'ble NCLT vide Order dated 21.11.2024 on the ground that no person can be held entitled to initiate or continue any proceedings in respect to a claim which is not part of the resolution plan. viii. M/s Planet Builder and Developers who are the Succes....
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....reement to Sell in the account of the Corporate Debtor. These are two entirely inconsistent positions and demonstrate clear inefficiency and negligence on the part of the Resolution Professional. 8. It is submitted by the Appellant during the course of arguments, when this Appellate Tribunal posed a query to the RP as to what exactly he had done viz-a-viz Registered ATS dated 23.04.2012 executed in favour of the Appellants and in respect to the same and directed him to file an Affidavit. Pursuant to the same, the RP filed an Affidavit dated 29.08.2025 along with additional documents (filed on 01.09.2025) and the stand taken by the RP in his affidavit is below: - "...2. I say that the erstwhile IRP, Mr. S. Gopalakrishnan had created a data room on the basis of information in his possession. From a perusal of the said data room it is reflected that the IRP was aware of the agreement to sell executed in favour of Mr. Raj Kumar Jhawar. A copy of the extract of the said data room is attached herewith as ANNEXURE - A..." 9. The RP by way of the Additional documents filed on 01.09.2026 contends that one, Mr. Amit Kirplani has been allotted the same unit prior in time. The I....
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.... broker assured that excess would be adjusted towards other charges/registration at possession and balance, if any, refunded. The Appellant also states that he has paid all EMIs and the loan now stands cleared. The Appellant points out that the SBI loan was already disclosed before the Hon'ble NCLT and the sanction letter dated 08.06.2012 and arrangement letter are on record and the same is extracted below:- "...6. That it is further apposite to note that in order to pay the balance consideration out of the total sum of Rs. 42 Lakhs, the Applicants had also applied for a Medium - Term Loan of Rs. 30 Lakhs from State Bank of India (SBI) vide application on 05.05.2012, which was sanctioned by SBI on 08.06.2012. Thus, the Applicants had not only invested their life time savings, but had also applied for loans in order to purchase the said flat. Hereto annexed and marked as EXHIBIT - "C" is a copy of the Sanction Letter dated 08.06.2012 along with the arrangement letter..." 12. The Appellant clarifies that in the present appeal he is claiming treatment as a homebuyer and allotment of the flat for Rs. 42,00,000/- i.e., the contractual apartment price and for the remaining Rs....
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..... Ld. Counsel submits that the RP has taken mutually inconsistent stands regarding the Appellants' claim-ranging from non-existence, to delay, to partial admission of payments-thereby exposing negligence and inefficiency. RP's shifting stand on payments, from inability to trace any record to admitting RTGS credits and payments under ATS, undermines his credibility and evidences failure to reconcile records. RP claims notices were sent to all allottees, he has failed to produce any proof of communication to the Appellants, unlike in other cases, demonstrating negligence. 17. Ld. Counsel submits that it is not in dispute that the Appellants had an Agreement to Sell dated 23.04.2012 which was registered in their favour. It is further now duly admitted by the RP that an amount of Rs. 65,72,000/-stands duly paid by the Appellants. That it is the stand of the Appellant that they are as such only claiming right of flats towards which the total consideration of Rs. 42 lakhs which has been duly paid by them and they are not raising any claim for the balance amount of approximately 23 lakhs. Further, the Appellants squarely falls within category A of the resolution plan approved vide Orde....
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....ver handed over, and their claim did not form part of the approved Resolution Plan. It was rightly held that no proceedings can be initiated for claims not forming part of the approved Plan. 23. Ld. Counsel reiterated that the Appellants were never declared owners, their claim was not admitted in CIRP, and they approached the Resolution Professional nearly three years after CoC approval, seeking to unsettle a concluded process. The Information Memorandum did not include the Appellants' claim, and there is no record of their alleged payments. Claims not part of the Resolution Plan stand extinguished, and there is an admitted delay of 1357 days in filing the claim. 24. Ld. Counsel for RP submits that the Appellants approached the Resolution Professional only after the Resolution Plan was approved by the CoC and reserved for orders by NCLT. He submits that CIRP commenced on 27 November 2019. The Resolution Plan was approved by the CoC on 19 November 2021. The Appellants filed their claim only on 11 June 2024, which was rejected as belated. Subsequently IA No. 3390/2024 was filed on 15 June 2024; the Plan was approved on 27 August 2024; IA was dismissed on 21 November 2024; and t....
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....C OnLine SC 470" and "RPS Infrastructure Pvt. Ltd. Vs. Mukul Kumar, (2023) INSC 816", which holds that a Successful Resolution Applicant cannot be faced with undecided claims post approval, as it would create uncertainty and defeat the IBC framework. 31. Ld. Counsel submitted that Adjudicating Authority has considered all issues and rightly exercised discretion in rejecting the Appellants' claims for want of any plausible explanation for delay. No illegality or prejudice is made out. He relies on the judgment of this Tribunal in "Pralhad Hage vs. Shyam Srirur" (2021) SCC OnLine NCLAT 4114". 32. Ld. Counsel further submits that IBC is a time-bound process ensuring finality. Post approval, the process must attain closure and the Appeal deserves dismissal with costs as it seeks to unsettle a concluded CIRP. 33. Ld. Counsel reiterated that The Appellants filed claims on 11 June 2024, after CoC approval. No explanation is provided. Their claims were not part of the Information Memorandum as no payments were made to the Corporate Debtor. It is settled that no surprise or belated claims can be entertained as decided by the Hon'ble Supreme Court in "CoC of Essar Steel vs. Satish K....
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.... the Corporate Debtor vide registered Agreement to Sale dated 23.04.2012 for Rs. 42,00,000/- and consequently became owners of the said flat, which was taken during CIRP proceedings. They submitted that CIRP was initiated pursuant to an application under Section 7 of the Code filed by Capri Global Capital Ltd., and that they filed their claim on 11.06.2024 before approval of the Resolution Plan. The delay in filing the claim was due to the fact that the CIRP of CD was conducted during the Covid period and due to ill health and old age they could not go out and were unaware of CIRP. They did not get any information about CIRP from any source. The Appellants contended that they fall within Category A of the Resolution Plan and that the RP acted arbitrarily and discriminatorily in ignoring their rights while including Mr. Kriplani's claim, who is merely an investor with unregistered allotment letters and a buy-back/assured return scheme. They further contended that the RP introduced the case of Mr. Kriplani for the first time before this Tribunal without placing it before the Adjudicating Authority, and that there are material contradictions in the RP's stand regarding the Appellants'....
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....evant extract of para-17 of the Impugned Order dated 21.11.2024, which records the submissions of the RP w.r.t the payments made by the Appellants is reproduced below: - "...17. On the other hand, Respondent No. 1 contents that he has been unable to locate any record demonstrating the payment of sale consideration under the Agreement for sale into any account of the Corporate Debtor and there are apparent inconsistencies in the bank statements produced by the Applicants and the amounts stated in the Agreement for sale. Respondent No. 1 also doubted whether the Corporate Debtor had maintained any bank account with HDFC Bank to which the Applicants are stated to have transferred the funds. Respondent No. 1 further submits that the Applicants submitted their claim on 11.06.2024 long after the date specified for submission of claims against the Corporate Debtor. By the time the Applicants submitted the claim, the Resolution Plan submitted by the Respondent No. 2 had already been voted upon by the CoC and the Application seeking approval of the Resolution Plan was heard by the Tribunal and reserved for orders. Since the claim was rejected by Respondent No. 1 on account of undue....
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....al. As per the said receipts the following amounts were paid: S. No. Receipt No. & Date Particulars Amount 1. Receipt No. 182 dated 03.05.2012 RTGS dated 13.04.2012 Rs. 6,75,625/- 2. Receipt No. 359 dated 04.01.2014 Cheque no. 445599 dated 06.08.2012 drawn on SBI Vashi Rs. 20,96,375/- 3. Receipt No. 360 dated 04.01.2014 Cheque/DD no. 716329 dated 12.04.2012 drawn on HDFC Vashi Rs. 5,00,000/- 4. Receipt No. 361 dated 04.01.2014 RTGS dated 13.04.2012 Rs. 3,00,000/- 5. Receipt No. 362 dated 04.01.2014 RTGS dated 13.04.2012 Rs. 30,00,000/- Total Rs. 65,72,000/- ....d. I say that the cumulative total of all these receipts come out to Rs. 65,72,000/- (Rupees Sixty-Five Lacs Seventy-two Thousand Only) whereas the total claim of the Appellant is for Rs. 42,00,000/- (Rupees Forty-Two Lacs Only). The contradiction shows that the Appellant is trying to create the illusion of payment of money to the CD whereas from the documents it is not reflected that the said amount of money has been paid for the purchase of a flat from the CD. It seems that the amount has been paid for some extraneous reasons to the CD a....
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....a single document showing any communication to Appellants. 47. In his affidavit the RP has also furnished the extract of Virtual Data Room (VDR) record relating to flat No. 1002 in Vermont Wing of the project. The relevant portion of the data room is extracted below: - S. No. Wing Name Unit No. Date of Registration Registration Number Name of the Flat Owner 36. Vermont 1002 23.04.2012 4264 Rajkumar Anandaram Jhawar & Shobha Jhawar 48. From the virtual data room records, we note that Unit No. 1002 Vermont was registered in the name of Rajkumar Anandaram Jhawar & Shobha Jhawar, the Appellants herein and the said agreement to sale was registered on 23.04.2012 vide Registration No. 4264. So, it is clear from the records of the CD, which was provided to the SRA also, that Unit No. 1002 was allotted and agreement to sale was registered in favour of Appellants. RP has accepted in his affidavit that IRP was aware of the aforesaid agreement to sell executed in favour of Mr. Rajkumar Jhawar. It is shocking to say the least that this fact was not brought before the Ld. Adjudicating Authority by the RP or the SRA. It is to be noted herein that VDR data....
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....is regard we also take note of the judgement of Hon'ble Supreme Court in the Mansi Brar Fernandes Vs. Shubha Sharma & Anr. [CIVIL APPEAL NO. 3826 OF 2020] (2025 INSC 1110), wherein Hon'ble SC defined the meaning of Speculative Investor as follows: "18.4.3. Pioneer Urban (supra), in para 56, defines a speculative investor as one who intends to evade possession and "jump ship", or one who is not genuinely interested in purchasing a flat / apartment. Any allottee, who, from the inception of the agreement, does not intend to take possession, or who later abandons such intent, falls within this category. Such an allottee is primarily concerned with refund or profit, and not with completion of the project. 18.4.4. Thus, the determination of whether an allottee is a speculative investor, must be holistic, having regard to the terms of the agreement, the allotment letter, the payment terms, and the overall conduct of the allottee." 55. Intention to possess a dwelling unit remains the sine qua non of a genuine homebuyer's intent. Based on the criteria laid down by the Mansi Brar (Supra) and the documents on record, we are of the view that the deposit made by the Kriplan....
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....e balance amount as per the construction linked schedule. The home buyers, who have paid below 70% of their agreement value shall have to complete up to 70% of their agreement value within 30 days from the approval date and balance as per construction-linked schedule. Category B i) Payments received towards the flats with CC and approvals and having verified allotment letters. ii) Payments received towards the flats which were approved and registered during the validity of the initial CC but later got removed in the amended CC. iii) Payments received towards shops which were approved & registered during the validity of the initial CC but later got removed in the amended CC. These home buyers and shop buyers are proposed to be paid 60% of the admitted principal at the end of the plan ie. T+ 730 days. The flat buyers and shop buyers can also opt to purchase new flats from the RA at prevailing or current market rates in case of which 100% of their admitted principal will be adjusted towards the new deal. The buyers opting to buy new flats need to pay 70% of the new deal value within T+ 90 days and the balance as per the construction linked schedule. ....
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....nce of communication to the appellant through any means, the RP failed to produce any document on records of CD. In such circumstances, delay cannot be attributed solely to the Appellants, when the RP failed in his duty to identify and notify stakeholders. 62. The Appellants hold a registered Agreement to Sell, vis-a-vis unregistered allotment letters held by Mr. Amit Kriplani who appear to be speculative investors. The RP himself has admitted receipt Rs. 65.72 Lakhs from the Appellants. The Appellants have restricted their claim to Rs. 42,00,000/- being the contractual value, thereby establishing bona fides. Therefore, we have no doubt that the Appellants are genuine homebuyers and their claim should have been categorised within Category A of the Resolution Plan. 63. The Adjudicating Authority approved the Resolution Plan while the Appellants' application was pending. This resulted in denial of an opportunity to adjudicate their rights before finalisation of the plan. Such action has caused serious prejudice and undermines principles of natural justice. However, we also note that entire facts of the case were not brought before the Ld. Adjudicating Authority. It is only in t....
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....ch Ltd. as land owners and Corporate Debtor as developer. By a general entry dated 30.06.2017, the loan advanced by Appellant to DS Kulkarni and Company was adjusted. The Appellant further made payment of VAT and service tax as well as Stamp Duty on registration charge. In the application filed by the Corporate Debtor through the Maharashtra RERA in July 2017, details of Flats sold in G Wing including the name of the Appellant was also mentioned. After admission of CIRP on 26.09.2023, when the Appellant came to know about the CIRP, they filed their claim on 31.03.2023, which was rejected by RP on the ground of delay. I.A. No. 2114/2023 was filed by the Appellant before the Adjudicating Authority which claimed to be dismissed on 22.11.2023 against which Comp. App. (AT) (Ins) No. 192/2024, was filed by the Appellant which was dismissed by this Tribunal on 21.02.2024. The present appeal has been filed by the Appellant challenging the order dated 23.06.2023, approving the Resolution Plan by which Resolution Plan, the Appellant have not been recognised as Homebuyers. 223. ......5. Company Appeal (AT) Insolvency Nos. 1050 and 1051 of 2023. * The Appellant(s) having successfully ....
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.... the SRA in the Resolution Plan. Non-consideration of such claims which are part of record would be inequitable and lead to unfair resolution, as in present case. The case of the Appellant is fully covered by the artio of Puneet Kaur (Supra). 68. The Respondents have cited the following cases in support of their contention that belated claims cannot be entertained after the approval of Resolution Plan by the CoC, which was subsequently approved by the Adjudicating Authority. i. Judgement of Hon'ble Supreme Court in "CoC of Essar Steel Vs. Satish Kumar (2020) 8 SCC 531" wherein it was observed that the SRA cannot be faced with 'undecided' claims after the resolution plan has been approved and/or accepted as this would amount to a hydra head popping up which would cause a flurry to the implementation of the Resolution Plan. This ratio is not applicable in the present case as the RP/Committee of Creditors (CoC) ignored the claim of a homebuyer whose allotment was already on record and now they cannot take shelter under the "Hydra-head" argument to unjustly enrich the SRA at the cost of a bona fide Homebuyer. ii. The Respondent No. 1/RP's reliance on the ju....
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....tter of Reservation for Flet No. 1002, on the 10" Floor in Residential. com Commercial Project "MONARCH BROOKEFIELDS" in itt Wing known as "VERMONT" situated at Plot No.3 Sec- 20, Kalamboli, Navi Mumbai, The city and industrial Development Corporation of Maharashtra Limited, {hereinafter referred to as "CIDCO" allotted land bearing plot No. 3 , Sector-20, Kalamboli, Navi Mumbai admeasuring 10000 5q. mts. or there about hereinafter referred to as the "said plot" on the terms and conditions contained in the Allotment letter. This is to record that pursuant to the sald letter of Allotment from CIDCO, the model Agreement for sale has to be entered into between you and us and you are satisfied at to our title to the property and marketability of the same. No further requisition regarding the same shall be entertained. Also you have seen the proposed plan of the said Building. The said plan is subject to approval from CIDCO at the time of submission as on the basis of G.D.C.R. As per your request we have allotted a Flat on the 10" floor bearing No. 1002 (hereinafter referred to as "the said Umit") in the above mentioned building on the said plot, on an approximate Carpet Area 70....
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....ed, except that the lump sum price mentioned above will be reduced or increased on prorata basis. The atotment of the unit will stand only after you sign the duplicate copy of this letter and send it to us within 15 days from the date of this letter. If you do not agree to any terms and conditions mentioned herein above, you will write to us within 15 days from the date of this letter. If we do not receive any such letter from you it is automatically given to understand that you have agreed to all the terms and conditions of this allotment mentioned hereinabove. On non compliance of the terms and conditions mentioned herein above, the amount paid by you will be forfelted and this letter of allotment will stand cancelled. For W/S Monarch Brookefields LLP I/WE ACCEPT Bil Cualqui Me um corpolani almi Li pelas [Authorised Signatory] Mrs. Mini Kirpalani 4. Maya R Kurpalau : Witness: 1. Date: Place: Navi Mumbai TRUE COPY Document 4 DOCUMENT-3 FORM CA SUBMISSION OF CLAIM BY FINANCIAL CREDITORS IN A CLASS (Under Regulation SA of he Insolvency and Bankruptcy (Insolvency Resolution frecess for Corporate Perwria) Regulations, 2016) 14 Nov, 2019 ....
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...., Scchor 20, Salamboli, Navi Mumbai 9. Detiels of the bank account to which the amount of the claim or any part thereof can be transferred pinuit to a resolution plan Savings Bank A/t. No.026301975465 with ICICI Dank, Ancheri West, Mumbai Branch IFSC Code - IC300000011 TRUE COPY Document 5 10 10. List of documents attached to this claim in order to prove the existence and non-payment of claim duc 1. Allotment Leters dated Cet 24", 2011 2. Payment Receipts 3. Bank Statements with Cheque Clearance 11. Name of the insolvency professional who will act as the Authorised representative of creditors of the class Mr. Indrajit Mukherjee Signature of financial creditor or person authorised to act on its behalf Maya R Kupalar Please enclose the authority if this is being submitted on behalf of the Sinangiel creditor] Name in BLOCK LETTERS - MAYA RANJIT KIRPALANI Position with or in relation to creditor - MOTHER Address of person signing - C5-201 Braraba San City, Wadgnonsberi, Pine, Mabarachra 41 | 014 "PAN munber, passport, AADHAAR Card or the identity card issued by the Election Commission of India DECLARATION I, Mr. Amit Razjit Kirpalani and Mrs. Mini Kirpa....