TMI Blog2022 (9) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... itor to whom the subject property is mortgaged and possession has already been taken under Section 13(4) of SARFAESI Act much before the filing of Section 7 application. Application also notice in detail the proceedings initiated against the Corporate Debtor prior to the application under Section 7 and allegations have been made in the application that the application has been filed fraudulently and maliciously to save the Corporate Debtor. Allegations made in the application are the allegations which are made in reference to Section 65 of the Code. The application by the Appellant was competent application filed under Section 60(5) of the Code r/w Rule 11 of NCLT Rules, 2016 and under Section 65 of the Code and the Adjudicating Authority was obliged to look into the allegations to find out if there is any ground to grant any of the prayers made in the application. The finding of the Adjudicating Authority that the Appellant has no locus cannot be sustained. When the Appellant claims to be the Financial Creditor who is assignee of the Financial Creditor and the application records sequence of events and various proceedings prior to the application under Section 7, the allegation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Officer vide its order dated 04.05.2018 directed the Corporate Debtor to refund the amount paid by the complainants alongwith simple interest @15% per annum. On failure of the Corporate Debtor to comply with the order, application for execution was filed where warrant of attachment was issued on 09.10.2018. (v) On 16.01.2020, the Respondent Swatantra Kumar filed an application under Section 7 against the Corporate Debtor. The Xander assigned the debts/financial assets including securities/ guarantees in relation to the subject property and Mortgage Deed dated 28.07.2015 to the Appellant vide Deed of Assignment dated 20.02.2020. (vi) The Appellant after coming to know about the Section 7 petition against the Respondent, filed an application being I.A. No. 572 of 2021 before the Adjudicating Authority praying for permitting the Appellant to intervene in the matter and further praying that the Company Petition be dismissed which has been collusively initiated. (vii) By order dated 08.06.2021, the Adjudicating Authority rejected I.A. No. 572 of 2020 filed by the Appellant holding that the Appellant has no locus to file an application. By a subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the allegations have been made in the application that insolvency resolution process has been fraudulently initiated, the Adjudicating Authority was obliged to consider the allegations and not reject the application on the ground of having no locus. It is further submitted that admission of Section 7 application is also unsustainable. The entire proceeding has been fraudulently and collusively initiated to save the Corporate Debtor from the liability of the Appellant and other creditors. 4. Learned counsel appearing for the Respondent submits that the Appellant has no locus to file any application and the appeal filed by the Appellant also deserved to be dismissed. The challenge raised by the Appellant is not covered under Section 61 of the Code, hence, the Appeal is to be dismissed in limine. The only limited scope is under Section 65 of the Code which provides for punishment/ penalty, however, the Appellant neither in the application nor in the Appeal has placed on record any cogent reasons to support its bogus allegations and pleaded even a prima facie case. Learned counsel for the Respondent further submits that the Respondent has entered into MOU dated 24.02.2014 with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was an application under Section 60(5) of the Code r/w Rule 11 of NCLT Rules, 2016 and under Section 65 of the Code seeking appropriate directions. We may notice certain averments made in the application. In para 8, it was mentioned that the Petitioner (Respondent No. 1 herein) being allottee cannot file the application individually and the petition has not been filed as per the proviso to Section 7 of the Code. In para 11, 12 and 13 following averments have been made in the application:- 11. The Applicant states that the Petitioner has maliciously filed the above Petition in the capacity of a lender under section 7 of the Code, in order to evade the procedural requirements under the Code and to prejudice the claims of other flat purchasers/allottees against the said Respondent. The Applicant states that in light of the various proceedings pending against the Respondent in various forum, the Petitioner has fraudulently filed an application under section 7 to avoid the consequences of such proceedings on the Petitioner s claim. 12. The Applicant states that it is a trite law that a homebuyer can initiate insolvency proceedings only as per the procedure laid down under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, where only conclusion has been recorded by the Adjudicating Authority in following words:- After hearing all the parties, the Adjudicating Authority is of the view that both the Applicants do not have locus to intervene in the CP No. 395 of 2020 therefore, Both the IAs are dismissed for want of locus standi. 10. The Adjudicating Authority has not adverted to the facts in the application I.A. No. 572 of 2021. The Appellant/ Applicant has come up in the application as an assignee of the Financial Creditor to whom the subject property is mortgaged and possession has already been taken under Section 13(4) of SARFAESI Act much before the filing of Section 7 application. Application also notice in detail the proceedings initiated against the Corporate Debtor prior to the application under Section 7 and allegations have been made in the application that the application has been filed fraudulently and maliciously to save the Corporate Debtor. Allegations made in the application are the allegations which are made in reference to Section 65 of the Code. Learned counsel for the Appellant has relied on the Judgment of Hon ble Supreme Court in Beacon Trusteeship Limited vs. Eathc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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