TMI Blog2023 (11) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... from the amount at the rate of Rs.13,500/- to Rs.21,000/- per sq. ft. which was initially promised by the Corporate Debtor. The clause in the Resolution Plan effectively modify all earlier contract between the parties and under the Scheme of the IBC, it is fully permissible to provide for new arrangement and clauses for revival of the Corporate Debtor which is the object of the IBC. The submission of the Appellant is that CoC has not exercised its commercial wisdom and has not looked into the relevant cost for construction and fixation of the MSP of Rs.33,000 per sq. ft. When the plan is approved with requisite vote, it has to be assumed that the said approval is in the commercial wisdom. More so, fixation of MSP for allotment of flats to homebuyers is a commercial decision. Further, escalation for prices of allotment of flats can very well be undertaken to revive the Corporate Debtor and Appellant cannot insist that the Resolution Applicant should also make the allotment of flats on the same price on which the Corporate Debtor has promised to make. There are no substance in any of the submissions raised by the Appellant challenging the approval of the Resolution Plan by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No.1. 4. Shri Neeraj Malhotra, Learned Senior Counsel challenging the impugned order submits that the Adjudicating Authority has wrongly held that the Real Estate (Regulation and Development) Act, 2016 will not have jurisdiction for future violation by the Resolution Applicant. It is submitted that the Appellants are deprived of exercising their rights under RERA for the future violations/ default by the Resolution Applicant. The Resolution Plan deserves to be rejected on account of various clauses seeking to circumvent RERA to the detriment of the homebuyers and in particular of violation of Section 30(2)(e) of the IBC. It is submitted that the Adjudicating Authority has failed to appreciate that the Corporate Debtor had agreed to sell flats to each of the homebuyers at the rate of Rs.13,500/- to Rs.21,000/- per sq. ft. whereas as per the revised Resolution Plan, the homebuyers are required to pay an additional consideration which is more than the contractually agreed consideration. The Successful Resolution Applicant has fixed the MSP for the Residential premises as Rs.33,000/- per sq. ft. It is submitted that the Resolution Plan contains clauses designed to circumvent RER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd perused the record. 8. From the fact which has been brought on record, it does appear that the Appellants are homebuyers who although voted against the plan but the plan stood approved by the requisite votes. Adjudicating Authority in the impugned order has referred to the judgment of the Hon ble Supreme Court in Jaypee Kensington Boulevard Apartments Welfare Association Ors. vs. NBCC (India) Ltd. Ors.- Civil Appeal No.3395 of 2020 for holding that Appellant has no right to challenge the approval of the Resolution Plan however, the Adjudicating Authority having proceeded to consider the submission advanced before the Adjudicating Authority on merits, we proceed to examine the submissions raised by the Counsel for the parties in this Appeal. 9. The first submission which has been raised by the Appellant challenging the approval of the plan by the CoC is that the Resolution Plan violates the provisions of RERA Act, thus, leads to non-compliance of Section 30(2)(e) of the IBC. It is submitted that the Resolution Plan illegally debars the homebuyers including the Appellant from enforcing any of their rights and future claims by filing a complaint under the RERA Act which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Effective Date as per the Resolution Plan. Thus, the above clauses clearly contemplate provisions with regard to past acts and past claims prior to effective date. These clauses cannot be read for creating any future embargo with regard to future claims for violation by the Resolution Applicant. The past claims under RERA does not survive and have to give way to the provisions of the Resolution Plan, hence, we do not find any infirmity in the aforesaid clauses and the aforesaid clauses clearly does not relate to any claims or violation subsequent to effective date which are not subject matter of the Resolution Plan. The above submission was also pressed before the Adjudicating Authority and the Adjudicating Authority has also observed that no prejudice is caused to the applicant in case their remedy under RERA in relation to past defaults stands forfeited. In paragraph 7.4 of the impugned order, following observed has been made:- 7.4. As regards clause 11.1 seeking immunity from payment of any compensation for delay in delivery and bar on filing fresh claims before RERA authority, this Bench finds that the Hon'ble Supreme Court in the case of Jaypee Kensington Boulevard Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d specifications of the unit/project and RERA and other authorities shall rely on this Resolution Plan as consent granted therefor. 8.20. With effect from the NCLT Approval Date and upon the payment of the Upfront Cash by the Resolution Applicant, the Resolution Applicant/ Corporate Debtor shall apply for the necessary approvals for constructing two towers, however, in case the Resolution Applicant/ Corporate Debtor is unable to construct two towers then the Resolution Applicant/ Corporate Debtor shall construct only one tower. 12. When we look into the aforesaid clauses, the clauses only empower the Resolution Applicant/ Corporate Debtor to alter the layout and the building plan including the height, location and common area. It goes without saying that the said alteration and modification has to be taken after obtaining necessary approval from the Competent Authority which fact is clearly mentioned in Clause 8.20. The aforesaid clauses cannot be read to mean that the Resolution Plan empowers the Resolution Applicant to alter the layout and modifying the building plan on its own. No exception can be taken to the aforesaid clauses. 13. Learned Counsel for the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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