TMI Blog2022 (2) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 42 of the I B Code. Power of Tribunal - HELD THAT:- A Tribunal can interfere where the Liquidator has not exercised his discretion in a bona fide manner or he was proposing to do an act which no reasonable or prudent person will do. A Liquidator as an Officer of the Tribunal is to act justly and fairly while dealing with an individual who has an adverse claim to his own and does not stand on his right either in equity or in Law, as opined by this Tribunal. Jurisdiction of Adjudicating Authority - HELD THAT:- In the present case, the rejection of the claim was duly communicated to the Appellant through Email dated 02.09.2020. The Appellant had not questioned the rejection of the Resolution Professional in rejecting the claim of the Appellant . It cannot be forgotten that in the case on hand the Allottees had approached the Appellant/Applicant for the financial assistance which was disbursed by the Appellant as Loan amounts to the respective Allottees which was then disbursed by the Allottees to the Corporate Debtor . The Appellant has not subjectively satisfied this Tribunal that the money which it is claiming was disbursed to the Corporate Debtor for tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B/2018 (Filed by the Applicant/Axis Bank Ltd under Section 42 read with Section 60(5) of the I B Code, 2016) at paragraph 5 to 9 had observed the following and dismissed the Interlocutory Application without costs. 5.Mr. Sharad Tyagi, the Learned Senior Counsel for the Applicant, while reiterating various averments made in the Application, as briefly stated supra, has further inter-alia submitted that though the claim of Applicant was rejected during stage of CIRP itself by the Resolution Professional, the Applicant has right to submit its claim again before the Liquidator, in pursuant to the Public Announcement in Form II dated 17.03.2020, as Liquidation is a separate Proceeding, and the Legislature has provided opportunity second opportunity to claimant(s). As per the Agreement executed between the parties, it gives a right to the Bank to claim out of the Liquidation cost of the Corporate Debtor instead of from the Home Buyers. The Bank has disbursed the money to the Corporate Debtor. Therefore, the Applicant is entitled for the relief as sought for. 6. Mr. Abhishek Anand, the learned counsel for the Liquidator, on the other hand, has opposed the claim of the Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor and stand rejected. Since the Liquidator has accepted the claims of Allottee in question, the Applicant cannot ask to replace them, that too without impleading those allottees in the instant Application. The Respondent has considered the case of Applicant and rejected its case with cogent reasons and thus the impugned rejection cannot be found fault with. The Applicant, admittedly has right against the allottees in question to proceed basing on various documents executed between the parties. 9. For the aforesaid reasons and circumstances of case and the law on the issue, we are of the considered opinion that the Applicant failed to make out any case so as to interfere in the impugned action of Respondent. We are satisfied that the Liquidator is carrying out the Liquidation process in question, in accordance with law. APPELLANT S CONTENTIONS: 5. The Learned Counsel for the Appellant submits that the impugned order in IA No.416/2020 in CP (IB)/189/BB/2018 passed by the Adjudicating Authority (National Company Law Tribunal, Bengaluru Bench) is contrary to the fact and law. 6. The Learned Counsel for the Appellant contends that the Appellant is a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t contends that the substantial sum towards the cost of flats/units was financed by the Appellant, if any payment is contemplated under the Liquidation to the Home Buyers for settlement of their claim, it ought to be first utilised to pay off the dues of the Appellant. 13. The Learned Counsel for the Appellant submits that the Appellant is to be considered as a secured Financial Creditor and shall be considered as a part of the Committee of Creditors . In fact, all the Home Buyers (numbering 13) had already transferred their respective rights under the flats/units in favour of the Appellant, as evident from lien marked by the Corporate Debtor in favour of the Appellant , subrogation clause mentioned in the Tripartite Agreement, irrevocable Power of Attorney by Home Buyers in favour of the Appellant and other documents executed by the respective Home Buyers in favour of the Appellant. 14. The Learned Counsel for the Appellant refers to the definition of Financial Creditor as per Section 5(7) of the I B Code meaning any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to and also adverts to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered. Otherwise, the Appellant would neither be recovering its loan sum nor security protecting its rights and interests under the Tripartite Loan Transaction . 21. The Learned Counsel for the Appellant contends that the allottees/Home Buyers of the Flats/Units donot have absolute rights over the said flats/units as substantial money was paid by the Appellant to the Corporate Debtor directly on behalf of the said allottees against the security of flats/units. The said allottees cannot deal with their flats/units freely bearing in mind the security interest enjoyed with Appellant and due to the provisions of the Tripartite Agreement and other transaction documents. 22. The Learned Counsel for the Appellant points out that the liquidation is an extra ordinary event and under liquidation, the assets of the Corporate Debtor would be auctioned including the flats/units financed by the Appellant which it enjoys a security interest upon realisation of the amount, out of the assets of the Corporate Debtor, the same would be distributed to the creditors as per Section 53 of the Code. 23. The Learned Counsel for the Appellant submits that in terms of the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter, upon submission of the claim, the Liquidator is required to verify the claims within the time limits specified by the Board and in this connection referring to the relevant Regulations namely, IBBI (Liquidation Process) Regulations, 2016 and more specifically under Regulation 30, the Liquidator is required to verify the claim submitted within a period of 30 days from the last date of receipt of the claims and may either admit or reject in whole or part as the case may be of such claim. 28. The Learned Counsel for the Appellant points out the Regulation 16 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 which enjoins any person who claims to be a stakeholder, shall submit its claim, or update its claim submitted during CIRP including creation of security interest, if any, before the last date of submission of Claim as mentioned in the Public Announcement. Furthermore, it is projected on the side of the Appellant that on applying the doctrine of literal interpretation on the said Regulations, 2016, it is clear that a person has an option to again file their claim before the Liquidator. RESPONDENT S SUBMISSIONS: 29. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd deliver the SCHEDULE C PROPERTY to the PURHASER S in accordance with the specific contained in the Schedule D here to or equivalent thereof. The DEVELOPER agree to deliver the Schedule C property to the PURHASER on or before 3 months from the date of the agreement with a grace period to the one month subject to force major conditions. The DEVELOPER also contemplates to complete the development of the layout in the project any delay in providing the facilities will not constitute as a breach of this agreement or the part of DEVELOPER subject to clause 18 hereunder. 8. The PURCHASER S shall make the payment to the DEVELOPER as per the PAYMENT SCHEDULE DESCRIBED HEREUNDER. a) ₹ 10,00,000/- (Rupees Ten Lakhs only( paid as advance at the time of booking by way of cheque bearing No.072626 dated 03/06/2016 drawn on Yes Bank. b) ₹ 21,63,500/- (Rupees Twenty one Lakh Sixty Three Thousand Five Hundred only) as on signing of the agreement. c) ₹ 6854250/- (Rupees Sixty Eight Lakhs Fifty Four Thousand Two Hundred and Fifty Only) within 30 days of signing this Agreement. d) ₹ 5,27,250/- (Rupees Five Lakhs Twenty Seven Thousand Two Hundre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction letter dated ./ ./2016 and on payment of interest, processing fee, administration fee etc on agreed contractual. 36. The Learned Counsel for the Respondent submits that a cumulative reading of the Agreement to Sell , Loan Agreement and the Tripartite Agreement shows that the contingencies mentioned under the Agreement for the sum to be due and payable towards the Applicant Bank and Default had not arisen and hence no claim of the Appellant/Bank is maintainable against the Corporate Debtor . 37. The Learned Counsel for the Respondent contends that the amount raised from an Allottee under a Real Estate Project must be deemed to be an amount having the commercial effect of borrowing and hence the individual allottee will be a financial creditor as per Section 5(8)(f) of the Code, because of the fact that the amounts were raised by the Corporate Debtor from the Individual Allottees and not from the Appellant/Applicant. As such, a plea is raised on behalf of the Respondent that the Appellant/Applicant s claims are not to be admitted against the Corporate Debtor as a Financial Creditor . 38. The Learned Counsel for the Respondent brings it to the notice of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in IA 416/2020 in CP (IB) No.189/BB/2018 before the Adjudicating Authority (NCLT Bengaluru Bench) is a misconceived one besides the same being untenable in Law and hence the impugned order of adjudicating authority in dismissing the aforesaid IA 416/2020 in CP(IB) No.189/BB/2018 requires no interference in Appeal by this Tribunal. RESPONDENT S CITATIONS 44. The Learned Counsel for the Respondent refers to the order of the Adjudicating Authority in Indiabulls Housing Finance Ltd. V. Rudra Buildwell Projects Pvt Ltd (Vide Company Petition No.(IB) 784(BB)/2018 dated 30.11.2018) wherein at paragraph 33, 35, 36, 40, 41 it is observed as under:- 33. The aforementioned clauses stipulates refund by builder directly to the applicant lender only in the event of aforesaid three contingencies. None of the three contingencies have since occurred. Therefore, before cancellation (including other eventualities) refund by respondent builder directly to the applicant IHFL does not arise. 35.Under this clause borrower agrees for valid discharge of payment of cancellation amount directly made from builder to applicant lender only in the event of cancellation of allotment in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified time period. Further, in the instant case, the Appellant when it questions the determination of the Liquidator dated 05.09.2020 to the effect that the Appellant/Applicant is not a Financial Creditor , then, as per Section 42, in respect of the accepting or rejecting the claim, an Appeal is to be preferred against the decision of the Liquidator to the Adjudicating Authority within 14 days of the receipt of such decision. However, the Appellant has not availed the remedy of preferring an Appeal against the decision of Liquidator in terms of Section 42 of the I B Code. The Liquidator had accepted the Allottees claim and in such an event, the Appellant/Applicant is not entitled to vary/modify the same especially when the Allottees were not parties to the IA No.416/2020 in CP (IB) No.189/BB/2018 before the Adjudicating Authority. In Law the Liquidator cannot brushed aside the decisions arrived at by the Interim Resolution Professional/ Resolution Professional except for any subsequent development as arisen in respect of the claims. 48. More importantly, in regard to the very same Debt in Law, two claims cannot be preferred. It is to be remembered that the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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