TMI Blog2022 (8) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant participation as dominant FC in CoC in case their Petition under Section 7 of IBC would have been admitted - the contention of Learned Counsel for the Appellant logical that Appellant is directly affected party and therefore, got right to be heard to protect financial interest of hundreds of homebuyers/ allottees we therefore, consider Appellant has locus in this appeal. Is Section 10A of IBC applicable to the Present Case? - HELD THAT:- Section 10A of IBC was introduced during turbulent times due to pandemic and the intention of Section was to minimise Insolvency and Bankruptcy Proceedings. Time during pandemic was allowed to all corporate entities to strengthen themselves and keep moving as going concern to avoid Insolvency Bankruptcy cases. It helped economy and society at large. In this background any default arising on or after 25th March, 2020 initially for a period of six months which could be extended by notification, barred for initiation CIRP Proceeding upto 1 year under Section 7, 9 10 of IBC - By way of explanation in Section 10A of IBC, it has been clarified that provisions of this Section shall not be applied to any default committed under the said Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veloped by Corporate Debtor to be constructed on Plot No. GH-02, Sector 143, Expressway Noida, which was launched in the year 2011 consisting of 3309 Apartments out of these 2600 Apartments were sold to Financial Creditors (Home Buyers) who booked apartments and Appellant is one of them. Appellant entered into in agreement with CD according to which possession of the apartment was to handed over on 11th November, 2013. However, the CD defaulted in providing timely possession of the apartments to allottees/ Home Buyers (FC) of almost nine years. 3. The Appellant along with similarly placed allottees (FC) of filed a petition under Section 7 of IBC against CD in CP (IB) No. 440 (ND)/ 2021 which is pending before the Adjudicating Authority. 4. Respondent No. 1 (in short R-1) i.e. Colliers International (India) Property Services Pvt. Ltd. (Formerly : Sinergy Property Developer Service Pvt. Ltd.) as Operational Creditor (in short OC) had filed petition bearing No. CP (IB) No. 883 (ND)/ 2020 claiming to be OC of R-2. OC is a registered company and engage in business of providing engineering and architect designing services and entered into an agreement on 5th July, 2011 with CD for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36,600/- dated 4th April, 2020 which is marked as Annexure R-2 at Page No. 46 were sent as afterthought and were issued merely to meet the threshold requirement of Rs. 1 Crore of Section 4 of IBC. (b) Further he stated that OC failed to provide any calculation in the petition under Section 9 of IBC Application. (c) Learned Counsel for the Appellant submitted that two invoices quoted above are neither signed nor stamped in contrast to other invoices which are marked as Annexure R-2 at Page No. 33 to 43 filed with the petition as such the two invoices are bogus and cannot be taken into consideration. 7. (a) The Learned Counsel for Appellant mentioned that the case is fully covered within the suspension period provide under Section 10A of IBC. (b) It has also been submitted that even the demand notice in Form 3 issued on 10th April, 2020 did not mention any date of default. Learned Counsel referred to this Tribunal Judgment in Kodeboyina Srinivas Krishna vs. Pvm Innvensys Pvt. Ltd. Anr. [Company Appeal (AT) (Insolvency) No. 205 of 2020 decided on 25th September, 2020], where it was held that The Demand Notice in Form 3 also requires the date of default to be explicitly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that CD has all wherewithal to complete the project involving hundreds of crores of rupees. This further prove connivance of OC and CD to frustrate Section 7 of IBC Application of hundreds of Homebuyers. (c) Therefore, it has been prayed to set aside the Impugned Order dated 22nd March, 2022. An Interlocutory Application bearing I.A. No. 1171 of 2022 in Company Appeal (AT) (Ins.) No. 448 of 2022 has been filed on behalf of the Appellant for stay of the Impugned Order. Respondent s Submissions: 9. Learned Counsel for the Respondent No. 1 i.e. OC stated that the entire Application of the Appellant is false and not maintainable. He mentioned that the Present Appeal is gross abuse of the process and the entire intention of Appellant is to appoint his own IRP instead of IRP approval by Adjudicating Authority in Section 9 of IBC Petition. a. Learned Counsel for the Respondent has raised issue about locus of the Appellant. b. He gave details of his Agreement with CD for consultation services dated 5.07.2011 which was extended on 5.12.2013, 9.8.2018 on 12.02.2020. Learned Counsel further stated that based on several invoices raised by OC, the payments were made withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties. According to us, following issues are required to be deliberated upon to take suitable decision in the present appeal. (i) Whether the Appellant has locus in the appeal where Section 9 of IBC Petition had been adjudicated by NCLT, New Delhi, Bench-III on 22nd March, 2022 in CP (IB) No. 883/2020 and Appellant was neither Applicant nor Respondent in that Petition which is been challenged now. (ii) Is Section 10A of IBC applicable to the Present Case. (iii) Whether the application under Section 9 filed by the Operational Creditor met the criteria of minimum threshold limit of Rs. 1 crore in order to initiate CIRP Proceeding under Section 9 of IBC. We will deal all above issues in our following deliberations:- Issue (i): Locus of Appellant We need to determine whether the Appellant has locus in the appeal where Section 9 of IBC Petition had been adjudicated by NCLT, New Delhi, Bench-III on 22nd March, 2022 in CP (IB) No. 883/2020 and Appellant was neither Applicant, nor Respondent in that Petition which is been challenged now. We have perused the application filed by Collies International India as OC against M/s Logix City Developers Pvt. Ltd. as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file Appeal under Section 61 of the Code. Section 61, sub-section (1) provides: 61. Appeals and Appellate Authority.-(1) Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal. We find the contention of Learned Counsel for the Appellant logical that Appellant is directly affected party and therefore, got right to be heard to protect financial interest of hundreds of homebuyers/ allottees we therefore, consider Appellant has locus in this appeal. Issue: (ii) Is Section 10A of IBC applicable in the Present Case. Section 10A was inserted by Insolvency Bankruptcy Code (Second Amendment ) Act, 2020 w.r.e.f. 5.6.2020. Section 10A reads as under :- Suspension of initiation of corporate insolvency resolution process. 10A. Notwithstanding anything contained in sections 7,9 and 10, no application for initiation of corporate insolvency resolution process of a corporate debtor shall be filed, for any default arising on or after 25th March, 2020 for a period of six months or such fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only Rs. 88,90,740/-. It has been brought out that two invoices i.e. Invoice No. BZ-109 dated 1st April, 2020 amounting to Rs. 7,02,100/- and Invoice No. BZ-110 dated 4th April, 2020 amounting to Rs. 4,36,600/- have been issued without any seal and signature. Admittedly, these two invoices dated 1st April, 2020 4th April, 2020 have been issued after 25th March, 2020. Hence, these two invoices will be barred by Section 10A of IBC. Issue: (iii) Whether the application under Section 9 filed by the Operational Creditor met the criteria of minimum threshold limit of Rs. 1 crore in order to initiate CIRP Proceeding under Section 9 of IBC. 4. Application of this Part (1) This part shall apply to matters relating to the Insolvency and liquidation of corporate debtors where the minimum amount of the default is one lakh rupees. Provided that the Central Government may, by notification, specify the minimum amount of default of higher value which shall not be more than one crore rupees. Vide the notification No. S.O 1205 (E) dated 24.3.2020 issued by the Ministry of Corporate Affairs as announced the threshold limit had been increased from Rs. 1 lakh to Rs. 1 crore for pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 10/ 2021 in IB-883(ND)/ 2020 which was dismissed as withdrawn and the Petitioner claims that this was done on the advice of Adjudicating Authority to file Section 7 of IBC Petition separately. To defeat the Petition under Section 7 of IBC was filed by Appellant before the Adjudicating Authority in CP (IB) 440 (ND)/ 2021, where, Appellant has claimed total due of Rs. 87,39,76,750/- as on 15th May, 2021. It is understood that the said Petition is still under consideration of Adjudicating Authority. 13. Be that as it may, by order dated 02.05.2022 in Company Appeal (AT) (Ins.) No. 448 of 2022 before this Appellate Tribunal on the submission of Appellant, the Impugned Order dated 22nd March, 2022 was stayed. 14. As regard the cost of IRP, we rely on the Judgement of the Hon ble Supreme Court of India on similar issue passed in Rajkumar Brothers and Production Private Limited vs. Harish Amilineni Shareholder and Erstwhile Director of Amilionn Technologies Private Limited Anr., 2021 SCC OnLine SC 663 upheld NCLAT Judgement titled M/s Harish Amilineni Shareholder and Erstwhile Director of Amilionn vs. M/s Rajkumar Brothers and Production Pvt. Ltd. Anr. passed in Company Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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