TMI Blog2022 (6) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties that the claim by the Appellant(s) were filed beyond the timeline prescribed in Form-A. Form-A required that the claims to be filed by 11.11.2020, whereas the claims were filed by the Appellant(s) on 14.07.2021, 23.07.2021 and in 09.11.2021. The List of Creditors was already published by Resolution Professional, which did not include the name of the Appellant(s). The Resolution Plan as submitted by Resolution Applicant was based on List of Creditors as published by Resolution Professional. It is true that Homebuyers whose number runs in several hundred in real estate project belong to different class of Financial Creditors. All Homebuyers who have booked a flat may not normally be residing in the area where Corporate Debtor has its corporate office and registered office - The Homebuyers are a class belonging to middle class of society and majority of whom, who book flat has taken loan from Banks and other financial institutions and they are saddled with liability to pay their loan from their hard-earned income they make payment to the Corporate Debtor in hope of getting a possession of the flat for their residence. Non-submission of claim within the time prescribed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the records of the Corporate Debtor. Even though, Interim Resolution Professional/Resolution Professional are not obliged to include the name of such Homebuyers, who have not filed the claim within the time in their List of Creditors, but there is no reason for not collating the claims of such Homebuyers whose claims are reflected from the records of the Corporate Debtor, including their payments and allotment. When the allotment letters have been issued to the Homebuyers, payments have been received, there are Homebuyers and there is obligation on the part of real estate Company to provide possession of the houses along with other attached liabilities. The liability towards those Homebuyers, who have not filed their claim exists and required to be included in the Information Memorandum. Further, under Regulation 36, sub-regulation 2(l), there is column for other information, which the Resolution Professional deems relevant to the Committee - The purpose of CIRP of Corporate Debtor is to find out all liabilities of the Corporate Debtor and take steps towards resolution. Unless all liabilities of the Corporate Debtor are not known or included in the Information Memorandum, the oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the I.A. No.5146 of 2021 has been challenged. The Adjudicating Authority while rejecting the I.A. observed that the claim by the Applicant in the matter was filed after delay of eight months from the cut-off date as decided by Resolution Professional. The Resolution Professional having already been put up to voting prior to the filing of claim, the Application was rejected. In Company Appeal (AT) (Insolvency) No. 391 of 2022, order dated 26.10.2021 of the Adjudicating Authority rejecting the I.A. 4864 of 2021 filed by the Appellant has been challenged, by which order, Adjudicating Authority observed that the Resolution Plan for the Corporate Debtor having already approved by the Committee of Creditors ( CoC ), the claim of the Appellant filed after lapse of eight months from the cut-off date cannot be entertained. In Company Appeal (AT) (Insolvency) No. 392 of 2022 order dated 04.01.2022 has been challenged, by which I.A. No.5119 of 2021 filed by the Appellant has been rejected observing that Committee of Creditors has already approved the Resolution Plan on 20.07.2021, which is pending consideration before the Tribunal for final approval, hence the Applicant, who had su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Noida, which is same as that of attorney of Appellant in Company Appeal (AT) (Insolvency) No. 390 of 2022. The Appellant s husband in Company Appeal (AT) (Insolvency) No. 394 of 2022 resides in Bangalore. Due to Appellant(s) not being residing in Noida, where the office of the Corporate Debtor situated, could not have learnt about Corporate Insolvency Resolution Process ( CIRP ) and, hence, could not file their claims within time. (iii) The Appellant in Company Appeal (AT) (Insolvency) No. 390 of 2022 filed its claim on 14.07.2021, whereas, Successful Resolution Applicant namely - Consortium of Sumit Kumar Khanna and M/s. Brij Kishore trading Pvt. Ltd. Filed its Resolution Plan on 09.04.2021, which was put for E-voting from 13.07.2021 to 19.07.2021. The Appellant in Company Appeal (AT) (Insolvency) No. 390 of 2022 has filed her claim in Form-CA to the Resolution Professional for an amount of Rs.23,18,422/-. Along with claim, the Appellant has submitted allotment letter dated 22.02.2016 and 15 payment receipts of Rs.23,18,422/-. (iv) The Resolution Plan submitted by the Successful Resolution Applicant was approved on 20.07.2021 by 100% voting in the 15th CoC meeting. The Reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time prescribed in Form-A, but details of their allotment and payments made by them already existed in record of the Corporate Debtor. It was the duty of the Resolution Professional to inform the Appellant(s) to file their claims and further the claim of the Appellant(s) qua the Corporate Debtor being matter of record, Resolution Professional could very well included their claims in the Information Memorandum prepared under Regulation 36 of CIRP Regulations as liabilities to Corporate Debtor to inform the Resolution Applicant to take into consideration the liabilities towards those Homebuyers, who could not file their claims. The Resolution Professional could have included the names of all the Homebuyers and mentioned about them in the Information Memorandum. The Resolution Professional has not included the names of the Appellant(s) in the Information Memorandum, which has caused great prejudice to the Appellant(s). The Appellant(s), who are Homebuyers cannot be equated with other Financial Creditors. The Homebuyers have to be treated in different category. 7. The learned Counsel for the Appellant(s) further submits that claims of the Appellant(s) ought to have been admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Resolution Professional and submitted that claims filed by all the Appellant(s) were beyond the time prescribed for filing the claim. The Resolution Plan was approved by the CoC on 20.07.2021 and except Appellant in Company Appeal (AT) (Insolvency) No. 390 of 2022, all other claims were filed after 20.07.2021. The Appellant(s) having not filed their claim before the prescribed time, their rights have extinguished after the approval of the Resolution Plan by the CoC on 20.07.2021. The Adjudicating Authority has rightly rejected the IAs filed by the Appellant(s). The Resolution Plan has been submitted based on the Information Memorandum prepared by the Resolution Professional. The Regulation 36(2)(d) of CIRP Regulations mentions that Information Memorandum shall contain a List of Creditors containing the names of creditors and the amount claimed by them and amount of their claims admitted and the security interest, if any, in respect of such claims. The Resolution Applicant has submitted the Resolution Plan as per Information Memorandum and now no claim can be entertained after approval of the Resolution Plan. The CIRP has been conducted in the time bound manner and now the Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew the object of the IBC which is resolution of Corporate Debtor in time bound manner to maximize the value, if such request of claimant is accepted the purpose of IBC would be defeated. Hon ble Supreme Court in the case of CoC of Essar Steel India Ltd. (Supra) held as under:- 88. For the same reason, the impugned NCLAT judgment in holding that claims that may exist apart from those decided on merits by the resolution professional and by the Adjudicating Authority/Appellate Tribunal can now be decided by an appropriate forum in terms of Section 60(6)of the Code, also militates against the rationale of Section 31 of the Code. A successful resolution applicant cannot suddenly be faced with undecided claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on behalf of Resolution Professional as well as Successful Resolution Applicant is that after approval of the Resolution Plan by CoC on 20.07.2021, the claim of all the Appellant(s) stood extinguished, which submission is refuted by the learned Counsel for the Appellant(s). The question to be answered is as to whether after the approval of the Resolution Plan by the CoC, which does not include the claim of the Appellant(s), the claim of the Appellant(s) stood extinguished? The answer is to be found in statutory provision of Section 31, sub-section (1), which deals with the approval of Resolution Plan is to the following effect: 31. Approval of resolution plan. - (1) If the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requirements as referred to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w.r.e.f 06.06.2018). The amendment in Code was brought to mitigate the misery of Homebuyers and to give them participation in the CIRP of a real estate Company. Looking to the procedure as is prevalent regarding filing of the claim by Financial Creditors, large number of Homebuyers are unable to file their claim within the time due to various genuine reasons related to such Homebuyers. Homebuyers make payment to the Corporate Debtor, receive allotment letter from the Corporate Debtor and also enter into Builder Buyers Agreement. All the documents pertaining to Homebuyers are on the record of the Corporate Debtor and Interim Resolution Professional/ Resolution Professional does take charge also of all the records of the Corporate Debtor. Even though, Interim Resolution Professional/Resolution Professional are not obliged to include the name of such Homebuyers, who have not filed the claim within the time in their List of Creditors, but there is no reason for not collating the claims of such Homebuyers whose claims are reflected from the records of the Corporate Debtor, including their payments and allotment. Regulation 36 of CIRP Regulations as amended with effect from 4th July, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets and liabilities. The word liabilities is an expensive word. The liability has been defined in P Ramanatha Aiyar Advanced Law Lexicon in following words: The term liability means a liability to pay money or money s worth and it includes any liability for breach of trust, any liability in contract, tort or bailment and any liability arising out of an obligation to make restitution. [(English) Insolvency Act, 1986, section 382(4) as cited in Chitty on Contracts, 27th Edition, 1994 Vol. I, c.20, para 20-037, p.1015] 21. When the allotment letters have been issued to the Homebuyers, payments have been received, there are Homebuyers and there is obligation on the part of real estate Company to provide possession of the houses along with other attached liabilities. The liability towards those Homebuyers, who have not filed their claim exists and required to be included in the Information Memorandum. Further, under Regulation 36, sub-regulation 2(l), there is column for other information, which the Resolution Professional deems relevant to the Committee. The liabilities which have been undertaken by the Corporate Debtor, huge money received by the Corporate Debtor fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not received in time etc. It will aid smoothen the existing system of collection and consideration of claim and these small individuals, MSME, SME and Government Department will not be the sufferer. It will also avoid large number of cases being filed by such left out Creditors. 23. We thus are of the considered opinion that Information Memorandum ought to have included the claim of those Homebuyers, who have not even filed their claims to correct liabilities of the Corporate Debtor for its appropriate resolution. In the present case, in the reply filed by Resolution Professional in paragraph 11, following statement has been made: 11. It is pertinent to mention herein that the claims towards the Homebuyer/ Allottees including the Appellant herein have already been dealt with in the Resolution Plan as submitted by Respondent No.4. it is stated that despite the same, the Appellant is abusing the process of this Hon ble Appellate Authority by filing the captioned Appeal for seeking reliefs against the Respondents on frivolous grounds. 24. During the course of hearing, when pointed query was made to the Counsel appearing for Resolution Professional and Successful Reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an applicant Vishal Saxena, who could not file his claim in time. obtained order of the Adjudicating Authority in CA No. 12/2020 on 3.2.2020, for admission and consideration of his claim. The appellants have further stated that while Vishal Saxena s claim and other claims that were filed after delay were admitted/accepted by the RP, the resolution plan approved by the CoC and the Adjudicating Authority the Impugned Order has created two separate categories of financial creditors in class one of claimants who filed their claims in time , and the other of non-claimants who could not file their claims in time. The two categories have received different shares in the approved resolution plan, and so while the claimants have received possession of the booked properties, the non-claimants have got just 10% of their booked amount after verification of their claims within one month, and thereafter all such claims would stand extinguished. In the above case, the Resolution Plan contemplated a provision that those Homebuyers, who are non-claimants, they shall be paid 10% of their booked amount after verification of their claims. In the above case, hundreds of Homebuyers could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the Corporate Debtor had left and no employees of the Corporate Debtor were on the rolls of the corporate debtor as on insolvency commencement date on 3rdDecember 2018. All the business operation of the Corporate Debtor was also closed. 28. Thus we see that the homebuyers/allottees could not have had access to either the registered office of the corporate debtor or the principal place of business at Faridabad since both were closed. Moreover, without the meeting/getting together by the homebuyers/allottees, it was not easy for them to discuss and convey their views to the Authorized Representative who would then represent their views in the CoC. When we see that out of a total of 473 home buyers/allottees only 222 allottees could file claims in time before the Resolution Professional and 251 allottees could either not do so or did so belatedly, we feel that exclusion of more than 251 i.e. about 53% of total homebuyers/allottees cannot lead to a fair and just resolution of the Corporate Debtor. We also feel that the providing 10% of the claimed amounts to homebuyers/allottees who could not file their claims in the circumstances of this case is an unfair and inadequate tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued to Resolution Professional to submit the details of Homebuyers, whose details are reflected in the records of the Corporate Debtor including their claims, to the Resolution Applicant, on the basis of which Resolution Applicant shall prepare an addendum to the Resolution Plan, which may be placed before the CoC for consideration. The above exercise be completed within a period of three months from today and the addendum along with minutes of the CoC be placed before the Adjudicating Authority at the time of approval of Resolution Plan, which is pending consideration before the Adjudicating Authority. The Resolution Applicant may also bring into the notice of the Adjudicating Authority the order of this date, so that the Adjudicating Authority may await the addendum and minutes of the CoC, which may be considered along with approval of the Resolution Plan. We thus, dispose of these Appeal(s) with following directions: (1) The Resolution Professional shall provide all details of Homebuyers along with their claims as reflected from the record of the Corporate Debtor, who had not filed their claims, including the Appellant(s) to the Resolution Applicant within a period of one ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
