TMI Blog2022 (6) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the CD is the owner of the Commercial Space and has accepted that the possession was with the Appellants admittedly. The Appellants are allottees of commercial space in Coral Brio. Although the CD had handed over the possession of Commercial space to the Appellants, admittedly, no sale deed was executed by the CD in favour of allottees prior to the commencement of CIRP. The rights of home buyers cannot be affected adversely in the Corporate Insolvency Resolution Process and their interest is to be appropriately preserved and protected within the parameters of the I B Code, 2016. This Appellate Tribunal is not in a position to sustain the order of the Adjudicating Authority and accordingly, this Tribunal sets aside the impugned order dated 16.01.2020, and directs the Resolution Professional to execute the sale deed after collecting Dues and Costs, if any, remaining unpaid, including the Costs of Registration, Penalty and other incidental Costs, till date, etc. - Appeal allowed. - Company Appeal (AT) (Insolvency) No. 350 of 2020 - - - Dated:- 17-6-2022 - [Justice M.Venugopal] Member (Judicial) And (Dr. Ashok Kumar Mishra) Member(Technical) For the Appellant : Ms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Through power of attorney holder namely Mr. Alok Sharma Mrs. Neelima Jha W/o Mr. Prabhat Kumar Jha R/o 90/130, Satyam Vasundhara, Ghaziabad, UP-201 012 Through power of attorney holder namely Mr. Alok Sharma Mr. Rohit Rastogi Late Mr. Suresh Chand Rastogi R/o 86, Jagriti Enclave, Vikas Mark Extension, Delhi 110092 Through power of attorney holder namely Mr. Alok Sharma Mr. D.K.Pandey S/o Late Mr. Chunni Lal Sharma R/oE-302, Alaknanda Apartments, Rampuri, Suryanagar, Ghaziabad 201 011 Through power of attorney holder namely Mr. Alok Sharma 3. The submission made by the learned counsel for the Appellant/ pleadings and written submission available on record are stated herein below in a summarized manner: a. The allottees have invested in the project in the year 2013 and Corporate Debtor (CD)/Respondent have given them possession in 2015 and these allottees were continuously paying electricity and parking charges to the CD. The CD went into CIRP vide order dated 11.01.2019 and Ms. Anju Agarwal was appointed as Interim Resolution Professional (IRP). The table reflecting the name of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CoC in its 7th meeting held that the decision of execution of sale deed be left to be decided by the Successful Resolution Applicant. e. Aggrieved with all these, they approached the Adjudicating Authority and the Adjudicating Authority has dismissed their application. Aggrieved with this, they have approached this Tribunal seeking the following reliefs as stated below: Allow the Appeal; Set aside the impugned order dated 16.01.2020 dismissing CA No. 2265(PB) of 2019 in CP(IB) No.593 of 2018; Pass appropriate directions to the RP to ensure that sale deeds are executed in favour of the allottees herein; etc. 4. The Adjudicating Authority, while passing the impugned order dated 16.01.2020 has observed the followings: 5. The submission made by the learned counsel for the Respondent/ pleadings and Written Submission available on record are stated herein below in a summarized manner: a. The ld counsel for the Respondent/RP has raised the issue that the Appeal is barred by limitation. The impugned order was pronounced on 16.01.2020 and the period of 30 days expired on 15.02.2020 and the Appellant has approached this Tribunal on 20.02.2020 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration of the units. No doubt, the Appellants were raising the issues like certain fit ins, parking area in basement, toilets, fire safety/fire alarm/springle issue, maintenance issue etc. raised with the CD apart from the issue of registration of property and completion certificate (appearing at page 45 to 114 of the Appeal paper book). c. What the issue has been raised by the Respondent/RP is that the appeal is barred by limitation as the same has not been filed within the prescribed period of 30 days as per Section 61(2) of the Code:- i. The impugned order was pronounced on 16.01.2020. ii. The period of 30 days expired on 15.02.2020. iii. The Appellant has approached this Appellate Tribunal on 20.02.2020. iv. The Respondent has cited the judgments of Hon ble Apex Court as well as this Tribunal, which is given below: V.Nagarajan V. SKS Ispat and Power Ltd Ors., Civil Appeal No. 3327 of 2020, where the Hon ble Apex Court has opined as follows: 21.The answer to the two issues set out in Section C of the judgement- (i) when will the clock for calculating the limitation period run for proceedings under the IBC; and (ii) is the annexation of a certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Period of 30 days if it is satisfied that there was sufficient cause for not filing the Appeal in time but such period shall not exceed 15 days. Thus the Period of Appeal is 30 days and the Delay which this Tribunal can condone is only of 15 days over and above Page | 6 I.A. No. 2596 of 2019 In Company Appeal (AT) (Insolvency) No. 853 of 2019 the Period of Appeal. For reasons discussed above (See Paragraph 7), even if limitation was to be counted from 07th June, 2019 as mentioned above, the Appeal filed on 13.08.2019 must be said to be barred by limitation as it was not filed within 30 days plus 15 days of knowledge. v. In this context, we are also citing the provision of Section 61(2) of the Code as enumerated below: Section 61 (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal: Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days. vi. Based on the above analogy itself, the Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge on, the property. This is expressly declared in s. 54 of the Transfer of Property Act. See Rambaran Prasad v. Ram Mohit Hazra 1967 1 SCR 293. C) The fiduciary character of the personal obligation created by a contract for sale is recognised in section 3 of the Specific Relief Act, 1963 and in section 91 of the Trusts Act. The personal obligation created by a contract of sale is de- scribed in section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the owner- ship of property, but not amounting to, an interest or easement therein . Further, it is also necessary to place reliance upon judgment passed by Hon ble Supreme Court in Suraj lamp and Industries Pvt. Ltd. Vs. State of Haryana and Ors. AIR 2012 206: 12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs the supply of goods or services critical to protect and preserve the value of the corporate debtor and manage the operations of such corporate debtor as a going concern, then the supply of such goods or services shall not be terminated, suspended or interrupted during the period of moratorium, except where such corporate debtor has not paid dues arising from such supply during the moratorium period or in such circumstances as may be specified.] (3) The provisions of sub-section (1) shall not apply to - 3 [(a) such transactions, agreements or other arrangements as may be notified by the Central Government in consultation with any financial sector regulator or any other authority;] (b) a surety in a contract of guarantee to a corporate debtor.] (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assets appearing at Rs.15 lakhs in the books in the assets side of the Balance Sheet will be reduced. iii. In the short and the summary, the houses so constructed is the business of the real estate company and the value of sale of those houses will always appear in the credit side of the profit and loss accounts as Revenue from operations . Hence, this is not an asset, in case of real estate company as it is recurrent business activity for the company it is its business for continuation of its operation as a going concern even during CIRP. g. Hence, we are unable to sustain the views of Respondent/RP that these houses registration will violate Moratorium under Section 14 of the Code. h. The Registration of all these houses is the procedural requirements , in case of Real Estate Company where the Appellants are already in possession of these spaces from 2015 whereas CIRP was initiated on 11.02.2019. i. Even the Hon ble Apex Court in Bikram Chatterjee ors. Vs. Union of India Ors. 2019 SCC SC 901 has held vide para 8 and 173 as follows: 8 . The facts of the instant case project that Noida and Greater Noida have allotted huge plots to the builders by ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Interim Resolution Professional. 3. It is submitted that many of the apartments/ flats have been completed, possession has been given, Sale Deed(s) have been executed in favour of number of allottees including Mr. Ajay Singh and Ms. Rachna Singh by the Corporate Debtor through the Interim Resolution Professional . However, certain work is yet to be completed such as electrical connection, supply of water etc. which can be done only after necessary permission of the Competent Authority for which applications have been moved and are pending consideration before such Authorities. All this suggests that the CIRP be positive to save the allottees and not to work as a detriment to the allottees to save the Object of the Code . k. The Hon ble Apex Court in Pioneer Urban Land and Infrastructure Limited and Anr Vs. Union of India and Ors.(2019) 8 SCC 416 has held that: 72. In Bank of India v. Vijay Transport [Bank of India v. Vijay Transport, 1988 Supp SCC 47 : AIR 1988 SC 151], the Court was dealing with the contention that a literal interpretation is not always the only interpretation of a provision in a statute and the court has to look at the setting in which the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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