TaxTMI 
TaxTMI 
2026 (3) TMI 1721
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....passed by the Adjudicating Authority (National Company Law Tribunal, Chandigarh Bench-I) in I.A. No. 2105(CH)/2023 in C.P. (IB) No. 248/Chd/2019. By the impugned order, the Adjudicating Authority has dismissed the I.A. No. 2105 of 2023 filed by Appellant- Suspended Director of Chandigarh Overseas Pvt. Ltd. Aggrieved by the impugned order, the present appeal has been preferred by the Appellant. 2. Coming to the factual matrix of the present case at hand, the Corporate Debtor-Chandigarh Overseas Pvt. Ltd. ("COPL" in short) was admitted into CIRP on 27.02.2023 by the Adjudicating Authority. This admission order though challenged before this Tribunal and the Hon'ble Supreme Court attained finality on 06.09.2023. Basis the claims received, the Resolution Professional ("RP" in short) constituted the Committee of Creditors ("CoC" in short) on 28.07.2023. The present Appellant, suspended director of the Corporate Debtor filed IA No. 2105 of 2023 in November 2023 before the Adjudicating Authority inter-alia challenging the constitution of the CoC and seeking exclusion of two entities namely, M/s Accord Infra Developers Pvt. Ltd. ("Accord" in short) and M/s Mohali Hitech Builders and Prom....
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....reality, the Respondents were business partners and the agreements executed by them with the Corporate Debtor were collusive agreements to defraud the Corporate Debtor. In support of their contention, reliance has been placed on the judgment of Madhya Pradesh Real Estate Appellate Tribunal in Bhopal Development Authority vs. Roop Laxmi Singh (2026) ibclaw.in 13 REAT where it has been held that a co-promoter cannot be considered an allottee, even if there is any condition for any consideration amount to be received under the relevant agreements. It was therefore clear that the collusive arrangement contemplated under the Agreements was not for possession of units by Respondent No.2 and 3 as allottees but was a cover-up of their role as a promoter/speculative investor. It was further submitted that the RP had admitted unverified and unaccounted claims of the Respondents which were not supported by the financial statements of the Corporate Debtor or Respondents. The claims of Respondents No.2 and 3 should have been rejected by the RP and they should have been denied a berth on the CoC as a Financial Creditor. It was also asserted that Respondents No.2 and 3 misused their position in t....
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....empt to derail the CIRP process of the Corporate Debtor. It was also asserted that the Appellant has tried to unnecessarily transpose the provisions of the RERA Act to the IBC framework particularly in attempting to import the definition of the term 'promoter' from the RERA Act, 2018 which cannot be allowed since the IBC is self-contained legislative enactment and only permits definition of two specific terms from the RERA Act. It was also pointed out that the contention of the Appellant that since Respondents No.2 and 3 had been allotted multiple units in the real estate project, they cannot be held as homebuyer allottees is also a misplaced contention since there is no prohibition under RERA against the allotment of multiple units to a single allottee. Accordingly, any attempt by the Appellant to rely on the RERA definition of "Promoter" to deny the status of a genuine allottee under the IBC to the two Respondents No.2 and 3 is misconceived and contrary to the statutory framework. It was emphatically asserted that there is no bar to the admission of claims even if the allottee is treated as a speculative investor, so long as the essential criteria of financial debt under Section ....
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....2023 before the Hon'ble Supreme Court in which similar grievances had been raised which was rejected by the Hon'ble Apex Court. This shows that the Appellant is trying to frustrate the CIRP process by indulging in forum shopping. On the issue that Respondents No.2 and 3 are related parties of the Corporate Debtor, it was contended that the test of related party is laid down in the judgment of Hon'ble Supreme Court in Phoenix ARC Pvt. Ltd. Vs Spade Financial Services Ltd. & Ors in Civil Appeal No. 2842 of 2020 wherein it has been held that if a Financial Creditor is not a related party in praesenti, he would not be debarred from being a member of CoC. Since the Respondents No.2 and 3 have ceased to be a related party from 2014, and CIRP was initiated after 2014, there is no substance in the contention of the Appellant. It was vehemently contended that the Adjudicating Authority having considered all the issues raised by the Appellant before passing a well-reasoned impugned order, it did not warrant any interference by the Appellate Tribunal. 6. An Intervention Application No. 6574 of 2025 has been filed by the Authorised Representative of the homebuyers in the CIRP of the Corpora....
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....ve agreements with the erstwhile management to hide their status. It was asserted that both from the terms of the Agreement as well as the conduct of the Respondent No.2, it emerges that Respondent No.2 was a promoter and not an allottee. It was also added that the case of Respondent No.3-Mohali Builders for claiming the status of an allottee was still weaker. The transaction between Mohali Builders and the Corporate Debtor was that of a business partner who had made speculative investment for marketing and reselling of units. The Agreement of 2009 clearly showed that the Corporate Debtor was depicted therein as 'Developer' while Mohali Builders has been defined as 'Promoter'. Even the clauses of the Agreement gave liberty to the Mohali Builders to fix resale prices, retain margins and control third-party agreements. 9. Submission was pressed by the Appellant that when both Respondents had failed to establish that specific units were allotted to them, these entities could not have been ascribed the status of Financial Creditor in Class. However, the RP classified the Respondents No. 2 and 3 as Financial Creditors in a Class without proper examination of the essence of these Agre....
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....ed by them before any judicial or statutory forum, they cannot be seen to raise these issues now that they have ceased to hold that position now. 12. The over-emphasis placed by the Appellant to harp on the terms of the 2011 Agreement of Respondent No.2 to claim that the said Agreement was a marketing/service arrangement which substantiated that Respondent No.2 was not an allottee is misplaced because it is indisputable that the subsequent Agreement of 2012 clearly records an absolute sale of property with the right to further sell. Further, the Agreement with Respondent No.3-Mohali Builders was also clearly an Agreement to Sell and mere nomenclature of "Promoter" in the recital of parties cannot override the substance of the transaction. Further the reference to Respondent No.3 as promoter in the Agreement of 2009 is immaterial and irrelevant as the Corporate Debtor was registered as a promoter with the RERA authorities. Further, there is no denial of the fact that the Respondents had made payments for the allotments, even if they were multiple allotments, and payments having been made by them, they cannot be denied the right to lodge their claims and become members of the CoC.....
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....or in holding that it did not find any impediment in holding the Respondents No.2 and 3 to be allottees who were entitled to file their claims. 15. On the contention of the Appellant that viewed from the prism of RERA Act, the Respondents No.2 and 3 cannot be viewed as allottees but have to be treated as promoters, we are of the considered view that the Appellant has tried to unnecessarily transpose the provisions of the RERA Act to the IBC framework particularly when the legislature has consciously limited the applicability of RERA Act specifically in respect of the definition of the terms 'allottee' and 'real estate project' as inserted in Explanation (ii) to Section 5(8) by the IBC (Second Amendment) Act, 2018. This limited adoption of RERA Act is evident from the text of Section 5(8)(f) read with the explanation therein, which defines financial debt in the context of real estate transactions. The deliberate inclusion of only these two definitions- 'allottee' and 'real estate project'- implies a conscious legislative intent not to import any other definition from RERA, such as 'promoter' or 'agent'. On the contrary, the Appellant has tried to import the definition of the term....
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....g Authority has relied on the judgement of the High Court of Delhi in the matter of A.B. Creations and Anr. Vs Bhan Textiles Pvt. Ltd., (2024) ibclw.in 1155 HC in holding that even if a company is dissolved under Section 248 of the Companies Act, there is no bar on them for pursuing their legal remedies from realizing the amount due to the company, whether crystallised or not, as much as they are liable to be subjected for the payment or discharge of the liabilities or obligations of the company arising from any contract or statutory implications. We are of the considered view that the provisions of the Companies Act has been wrongly relied upon by the Appellant to deny the claims of Respondents No.2 and 3 and make this a ground to seek their exclusion from the CoC. 18. This brings us to the contention of the Appellant that Respondents No.2 and 3 are speculative investors and co-developers who were interested only in the profit of the project and were not homebuyers/allottees. It is the case of the Appellant that in order to be a genuine allottee, the homebuyer must be a purchaser of a specific unit with clear intention to take possession of such a unit. In support of their cont....
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....uyer or genuine allottee or speculative homebuyers/allottee but if he has paid the money for acquisition of such properties or given the advance, such allottee/ homebuyer shall be treated as Financial Creditor in terms of Section 5(8)(f) of the Code. Hence, the pleadings of the Respondent No. 2 in this regard that the Appellant is speculative investor will not affect the rights of the Appellant to be treated as the Financial Creditors." 20. When we look at the ratio of the above judgment, we find that the same is squarely applicable in the present case and the claims of Respondents No.2 and 3 could not have been extinguished merely because of being a speculative investor. Thus, judgement clearly holds that even if an allottee falls under the category of speculative investor, as has been claimed by the Appellant, the bar on such a speculative investor allottee is only for initiation of CIRP and not for purposes of filing their claim as creditor in class. Furthermore, Section 15 of the RERA Act expressly contemplates that a single allottee may book multiple apartments or plots in a project, and there is no restriction on third-party sales or multiple bookings by the same entity. T....
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....by various homebuyers. It was also asserted that the contention that the amounts claimed by the Respondents No.2 and 3 did not exist in the financial record and balance sheet of the Corporate Debtor does not carry sufficient basis since in terms of Regulation 8A of the CIRP Regulations, the existence of debt which due to a creditor in class could also be proved on the basis of Agreement for Sale, Letter of Allotment etc. and hence balance sheets cannot be relied upon to be the sole criteria for admission of claims. Hence, it was asserted that there was no discrepancy in the admission of claims of Respondents No.2 and 3. 23. When we look at the impugned order, we notice that the Adjudicating Authority after noticing CIRP Regulation 8A of CIRP Regulations also took the view that creditors in class are entitled to submit their claims basis certain specified documents other than audited balance sheets. The Adjudicating Authority has rightly noticed the relevant CIRP Regulations while returning its findings. We do not find any error in this finding returned by the Adjudicating Authority since non-reflection of claim amount in the balance sheet cannot be a cogent ground for rejection ....