9911796707
TMI Blog2021 (9) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Appellant, she along with her husband-Mr. Sumant Brahmachar booked apartment in the project of Corporate Debtor. The name of the Project is Lotus Panache. She had booked Apartment No. 404, Tower No. 16, Lotus Panache for which allotment letter dated 07th August, 2010 was issued and builder buyer agreement dated 14th August, 2010 was executed. Copy of the said agreement is at Annexure 2 Colly. Appellant claims that Appellant took loan from HDFC Bank and the consideration was paid. Still the apartment was not delivered even after four years. According to the Appellant, due to non-delivery of the premises even after four years, Mr. Vidur Bhardwaj-Respondent No. 3 accommodated the Appellant in alternate premises in the same project which is Flat No. 1101, Tower 30 purported to be owned by one Ms. Aarti Saraf-Respondent No. 2. The Agreement was for two years with option to renew after a year with 10% increase in rent. It is the case of the Appellant that the Corporate Debtor was admitted to CIRP when Application under Section 7 of IBC was admitted on 10th January, 2019 and the Respondent No. 1 came to be appointed as Resolution Professional. 3. The Appellant claims that on 08th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he address of both these companies are same and thus the Appellant claims that the Appellant who has paid the complete amount of the consideration for flat which she has booked namely Flat No. 404, Tower No. 16 (Flat Booked in short) she could not be evicted from alternate premises (Flat No. 1101, Tower No. 30) (alternate premises in short). She claims that she could not be evicted from the alternate premises till the flat allotted to her is provided to her. According to her, the liability to pay the rent is also of Mr. Vidur Bhardwaj-Respondent No. 3. 7. The Respondents have filed Replies and we have heard learned Counsel for the parties. Agreement at Annexure-A2 shows that the Corporate Debtor-M/s. Granite Gate Properties Pvt. Ltd. entered into the Apartment Buyer Agreement with Mr. Sumant Brahmchar the husband of the Appellant as well as the Appellant Ms. Indrani Brahmachari. The Appellant is an allottee of Corporate Debtor is a matter which cannot be said to be in doubt. 8. However, the dispute in the present matter is centering around the rent agreement dated 27th November, 2018 (Annexure A-6, Page 88). This agreement dated 27th November, 2018 is between the Respondent No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arti Saraf-Respondent No. 2 and the Appellant and there are two witnesses signing the document. In short Respondent No. 3 is not signatory to this document. Respondent No. 2 in her Reply claims it is her private dispute with Appellant and Corporate Debtor has nothing to do with it. She claims she has filed suit for eviction of Appellant in Civil Court. The Respondent No. 3 in Reply (Diary No. 24783) paragraph 7 referred to the builder buyer agreement dated 14th August, 2010 and the allotment letter dated 07th August, 2010 between the Corporate Debtor and the Appellant. Respondent No. 3 claimed that after CIRP was initiated the management rest with the RP/IRP and that IRP had stepped into the shoes of the Corporate Debtor and Appellant can seek relief only from the IRP of the Corporate Debtor. In paragraph 10 of the Reply Respondent No. 3 mentioned as under: "10. In fact, the Appellant has given reference to the Rent Agreement dated 27.11.2018 (hereinafter referred as the "Agreement") executed between Ms. Aarti Saraf i.e. Respondent No. 2 and the Appellant for a period of 24 months w.e.f. 1st December, 2018 to 30th November, 2020. It is pertinent to mention that the Appellant made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cument shows that the cheque was dated 22nd November, 2018 signed by Respondent No. 3 -Mr. Vidur Bhardwaj and this cheque was issued in the name of Respondent No. 2- Ms. Aarti Saraf for amount of Rs. 1,62,000/-. The cheque is having No. 520841. This is the same cheque no. 520841 which is referred in the Rent Agreement between the Appellant and the Respondent No. 2-Ms. Aarti Saraf which was executed on 27th November, 2018. Consequently, we had directed as per our Order dated 15th February, 2021 the Respondent No. 3 to respond to the averments made by the Appellant in Rejoinder Affidavit. After this, the Respondent No. 3 came up with a story of giving aid and loan to the Appellant mentioning in the Affidavit (Diary No. 25994) as under: "b. That owing to the circumstances existing therein in relation to the Appellant, the Respondent, only in good faith and as a matter of aid, had provided trust based loan to the Appellant of which the Respondent No. 3 reserves its right to recover the same in accordance with law. It would not be out of place to mention that the said in aid payment cannot fasten any liability nor is this Hon'ble Tribunal an appropriate forum to adjudicate the disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to go on paying the rent once CIRP is initiated on 10th January, 2019. If we direct the Resolution Professional to continue to pay the rent it would be giving preferential benefit to one of the allottees. Parties have not brought on record anything to show that all the allottees of the Corporate Debtor in CIRP are being given any such preferential treatment. In the facts of the matter, the prayers of the Appellant in I.A. 2468 of 2020 could not be granted. It would not be in consonance with the scheme of IBC. Under the scheme of IBC, the allottee can be dealt with under Resolution Plan or if the Corporate Debtor goes into Liquidation, the allottees would get treatment as per provisions but the same would have to be similar to all. Even if the veil is lifted, what appears is that one of the directors of the holding company gave some preferential benefit to the Appellant. However, when CIRP has been initiated, the Corporate Debtor with whom no prior contractual arrangement is proved, cannot be forced to continue with the same treatment. 13. For the above reasons although we differ from the observations of the Adjudicating Authority in Impugned Order, relief as is being sought by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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