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2023 (4) TMI 414 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHIResolution Process - determination of liquidation value - Power of RP and CoC to reject the value determined by the Valuer - liquidation value of security interest of the Appellant in project Universal Business Park - HELD THAT:- From the materials brought on record, it is clear that area which is covered by Conveyance Deed was 89,706 sq. ft., whereas total saleable area of the Universal Business Park was 2,15,915 sq. ft. Pleadings of RP was categorical that by BBA, area of 165,115.53 sq. ft. was allocated, which facts have not been disputed by the Appellants. The Appellants case rather is that execution of BBA does not amount to transfer/ sale under the provisions of the Transfer of Property Act, which plea has been specifically taken in paragraph 14 as extracted above. There can be no doubt about legal position that title is conveyed when Conveyance Deed is executed, but certain rights accrue to homebuyers under the BBA, which rights have been recognized by law Courts including the Hon’ble Supreme Court. Promoter, who has entered into a BBA with allottee and allotted a particular flat and received the payment has no right to transfer the same. It is apparent from the materials on record, it is clear that with regard to Universal Business Park, entire area was sold by Conveyance Deed and by BBA to the allottees and the Promoters have received the money through the Conveyance Deed and BBA and after execution of the BBA, the allottees acquired the right to receive possession of the units for which payments have been made. It is clear that the entire super area of Universal Business Pak was conveyed by Sale Deeds and by BBA, rather, the facts indicate that total area conveyed/ allotted was more than total area of Ground Floor and all the Floors. When area has been allotted to homebuyers, who have also paid the amount as per the agreement, homebuyers get an interest to receive the possession of the unit - The Valuers did not enter into issue of encumbrance over the assets. The finding has been recorded by the Adjudicating Authority in paragraph 49 that since the units have already been sold, are no longer the asset of the Corporate Debtor, hence, the liquidation value of the Universal Business Park project is NIL. The Adjudicating Authority has rightly come to the above conclusion after considering the facts and circumstances of the present case. The liquidation value fixed by the Valuers cannot be ignored in the resolution process. It is true that CoC on any valid reason can take a call to ask for any fresh valuation due to any relevant circumstances, but the valuation done by the Registered Valuers and average of liquidation value taken up by the Valuers serves the specific purpose and cannot be allowed to be disregarded by the CoC. In event, it is accepted that the CoC can change the liquidation value on its own, that may lead to unsatisfactory results - the liquidation value found by the Registered Valuers cannot be allowed to be changed by the CoC. We, thus, are satisfied that direction by Adjudicating Authority to CoC to re-examine the issue of significant differences between liquidation value submitted by two Valuers was uncalled for. We may however, hasten to add that in the present case, liquidation value, which was to be ascribed to the Appellant was an issue, which cannot be said to have determined by the Valuers in their Valuation Report. Valuers in their Valuation Report has added a caveat, which we have already noticed, which clearly left the issue to be determined while allocating the amounts to be paid to the dissenting Financial Creditors. Appeal dismissed.
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