9911796707
TMI Blog2021 (9) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... greements envisaged that possession of the apartments would be delivered within a period of thirty-six months, which in almost all cases was to be in 2014. 2. The grievance of the petitioners is that the project was abandoned by the developer. As a result, they instituted proceedings1 before the National Consumer Dispute Redressal Commission2 seeking refund of their moneys with interest. On 12 July 2018, the NCDRC allowed their claim by directing the first respondent to refund the principal amount paid by the petitioners together with 12 per cent interest from the date of deposit along with costs within four weeks. There was a provision in the order for interest being enhanced to 14 per cent if the amount was not paid within the stipulated period. This order of the NCDRC has attained finality. 3. Execution proceedings3 under Sections 25 and 27 of the Consumer Protection Act 19864 were instituted by the petitioners. The NCDRC issued notice on 7 September 2018. In the meantime, certain orders were passed by the NCDRC on 23 October 2018 in separate execution proceedings pertaining to other home buyers in the same housing project. The first respondent challenged this order of the NCD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., that order of custody of the Managing Director of the first respondent and attachment of properties of the first respondent shall only be given effect to once the Delhi High Court decides the first respondent's petition. 6. During the pendency of the proceedings before this Court, arising out of the order of the Delhi High Court, certain developments took place. On 1 July 2019, notice was issued in SLP (C) No 12150 of 2019 and the order of the Delhi High Court was stayed. On 11 September 2019, the Court was informed that seven petitioners have settled their dispute and that a settlement with the others was likely. 7. In the meantime, on 31 October 2019, proceedings were initiated against the first respondent before the National Company Law Tribunal "NCLT"/"Adjudicating Authority" under Section 9 of the Insolvency and Bankruptcy Code 2016 (IBC) by an operational creditor. The Adjudicating Authority admitted the petition, following which the corporate insolvency resolution process (CIRP) was initiated and a moratorium was declared under Section 14 of the IBC. The specific direction of the NCLT was as follows: "15. In the given facts and circumstances, the Operational Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee of Creditors be convened within a period of two weeks so that a final decision could be taken on whether any of the Resolution Plans are acceptable to it. The CoC consists only of representatives of the home buyers, no financial institutions being involved. The Court has been apprised, by Mr Himanshu Satija, counsel appearing on behalf of the RP, that by a vote of 96.93 per cent, the CoC approved the Resolution Plan which was submitted by the consortium of home buyers. On 21 August 2021, an application was filed by the RP for approval of the Resolution Plan before the Adjudicating Authority and some objections have been received. The Adjudicating Authority is yet to decide on this application for approval. 10. Mr. Pawanshree Agarwal appears on behalf of the petitioners. Mr, Himanshu Satija appears for the RP. Mr, Manoj Yadav appears for second to sixth respondents, a group of home buyers. Mr. Akshay Srivastava and Mr, Ayush Sharma have intervened on behalf of other home buyers. 11 Mr. Pawanshree Agarwal, counsel appearing on behalf of the petitioners submitted that during the course of the proceedings before this Court, settlements were arrived at and hence the promoters of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , they are to submit them before the Adjudicating Authority. We direct the NCLT to ensure that the application for approval is disposed of expeditiously and preferably within a period of six weeks form the date of receipt of a certified copy of this order. 13. Counsel for the petitioners urged that this Court should at the present stage direct that the personal properties of the promoters be attached in view of the provisions contained in the Resolution Plan which have been extracted earlier. The Resolution Plan is still to be approved by the Adjudicating Authority under the provisions of Section 31(1) of the IBC. Hence, at this stage, when the Resolution Plan awaits approval, it would not be appropriate for this Court to issue a direction of that nature. After the Resolution Plan is approved under the provisions of Section 31(1), consequences emanating from the statutory provision would ensue to the benefit of the home buyers. Hence, we have already directed that the NCLT shall dispose of the approval application filed on 21 August 2021, within a period of six weeks from the date of receipt of a certified copy of this order. 14. Further, since the moratorium declared in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , what is stated in paras 51 and 59 in Aneeta Hada [Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] would then become applicable. The legal impediment contained in Section 14 IBC would make it impossible for such proceeding to continue or be instituted against the corporate debtor. Thus, for the period of moratorium, since no Sections 138/141 proceeding can continue or be initiated against the corporate debtor because of a statutory bar, such proceedings can be initiated or continued against the persons mentioned in Sections 141(1) and (2) of the Negotiable Instruments Act. This being the case, it is clear that the moratorium provision contained in Section 14 IBC would apply only to the corporate debtor, the natural persons mentioned in Section 141 continuing to be statutorily liable under Chapter XVII of the Negotiable Instruments Act." (emphasis supplied) We thus clarify that the petitioners would not be prevented by the moratorium under Section 14 of the IBC from initiating proceedings against the promoters of the first respondent Corporate Debtor in relation to honoring the settlements reached before this ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
