9911796707
TMI Blog2023 (6) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... ofessional ('RP') aggrieved by the 'Impugned Order' dated 04.09.2020 passed by the 'Adjudicating Authority' (National Company Law Tribunal, Bengaluru Bench), in the 'Common Order' in IAs No.205-208, 213-218, 304-307, 309-311/2020, in C.P. (IB) No.84/BB/2019, by which common 'Impugned Order', the 'Adjudicating Authority' has dismissed all the 'Applications', observing as follows: "26. As per information furnished by the Applicant through Information Memorandum, aggrieved by the actions of Directors of the Corporate Debtor of the Company, several of people running into hundreds, have already filed Civil and Criminal cases against the Company and its Directors before various Civil/Criminal Courts and they are prosecuting their cases. And those people have absolute right to prosecute their cases before respective Courts for their remedy. Since they have already initiated before initiation of CIRP in question, the Aggrieved Parties and concerned Courts cannot be restrained by virtue of moratorium, from prosecuting their cases before the Courts. Only the aggrieved Parties of Flat Buyers and Creditors of Dreamz Sumadhur are deemed to be covered by the instant CIRP. 27. The Applicant/R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the 'Adjudicating Authority', while considering 17 'Applications' filed by the Erstwhile Resolution Professional ('ERP') observed that 'in the interest of justice and equity, the Corporate Insolvency Resolution Process ('CIRP') initiated by the 'Adjudicating Authority', vide 'Order' dated 20.08.2019 should be interpreted to read in relation to Dreamz Sumadhur Project only and not in respect of all the Projects of the Corporate Debtor'. It is averred that despite the fact that there was no 'Application' seeking Project Wise Insolvency filed by the RP, the 'Adjudicating Authority' has Sou Moto passed this 'Order'. It is submitted that the 'Adjudicating Authority' had passed the Admission under Section 7 against the entire 'Corporate Debtor' and not against the single Project and therefore the 'Impugned Order' amounts to a retrospective view which is impermissible as the Court does not provide for any 'Power of Review' to the 'Adjudicating Authority'. Dreamz Sumadhur Project has approximately 300 Homebuyers, but the entire 'Corporate Debtor' put together has 2,000 plus Homebuyers. 3. It is brought to the notice of this Bench that in C.P. (IB) No.148/2019, the 'Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r' Vs. 'M/s. Tata Housing Finance Ltd.' (2022) ibclaw.in 329 NCLT, in which the 'Adjudicating Authority' in para 9 has observed as hereunder: "9. Heard the Learned Counsel for the Applicant and taking into account the facts of the present case, as well as the documents submitted by both the Applicant as well as the Dissenting Financial Creditor vis., M/s. Tata Capital Housing Finance Ltd. On a thorough reading of the IBC, 2016 read alongwith the regulations made thereunder envisages the insolvency of the Corporate Debtor and it can be seen that there is no concept of limited CIRP or CIRP for specific projects anywhere. It can be further seen in the Hon'ble Supreme Court Judgement in 'Pioneer Urban Land and Infrastructure Ltd.' Vs. 'Union of India' [WP(Civil) No.43/2019), that the IBC, 2016 is a beneficial legislation which can be triggered to put the Corporate Debtor back on its feet in the interest of unsecured creditors like allottees, so that a replaced management may carry out the real estate project as originally envisaged and deliver the flat/apartment as soon as possible or pay late fees for late delivery. As far as the case laws relied on by the Applicant is concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Order' dated 27.02.2023, that the Homebuyers lack Commercial Wisdom to take the CIRP forward and that they have voted in the negative for offer of refund; for construction of new homes etc. The RP filed the Minutes of the Meeting of the 10th CoC stating that the CoC Members are not interesting in Resolution. 9. The first Respondent filed his 'Reply' stating that the first Respondent does not have any nexus or direct relationship with the 'Corporate Debtor', namely M/s. Dreamz Infra India Ltd. except for the fact that they are the absolute owners in possession of the property bearing old SY No. 130/1, new SY No. 130/3, measuring to an extent of 1 Acres 6 Guntas situated at Doddabanahalli, Bidarahalli Hobli, Bangalore, East Taluk, Bangalore, Urban District. The first Respondent and his co-Purchaser had not entered into any venture of the 'Corporate Debtor' and submits that the said property belongs to Mr. Rajeshwara Reddy who purchased the said property under the Sale Deed dated 13.07.2010, and is absolute owner in possession and enjoyment of the said property without any hindrances. Mr Rajeshwara sold the said property to Mr. Harish J Naidu who converted the land from agricultural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended the proceedings to all Projects which is in contempt of the NCLT 'Order' dated 20.08.2019. 13. The sixth Respondent submitted that the CoC of Dreamz Infra India Ltd. filed Writ Petition in W.P. No. 1108/2020, challenging the 'Order' dated 04.09.2021 passed by the NCLT in I.A. No.214/2020 and other IAs filed by the 'Appellant' in C.P.(IB) No.84/BB/2019, before the Hon'ble High Court of Karnataka, at Bengaluru, it has granted an Interim Order staying the 'Order' dated 04.09.2020. The relief sought for in I.A.214/2020 regarding R-6 is with respect to cancellation of a registered document which cannot be granted in summary proceedings before the 'Tribunal' as the appropriate forum for the same would be a Civil Court. It is submitted that this Respondent is not a party to the Company Petition or to the 'Application' and that I.A.214/2020 is not maintainable as it is beyond the scope and ambit of the Section 60(5) of the Code. Further, the JDA in question has been terminated on 13.07.2016 and that the Cancellation Deed is a registered document and that this 'Application' is 'time barred' as a period of Limitation as lapsed. 14. It is submitted by the twelfth Respondent that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y confined the CIRP to Dreamz Sumadhur Project only. The 'Applications' revolved around disputed questions of fact which need proper adjudication only by a Civil Court. 16. The 18th Respondent/ERP submitted that four criteria required for reverse CIRP i.e., fresh financing of the Project, no haircuts, assets being greater than liability, Project Wise Account are not satisfied in the instant case and therefore the 'Adjudicating Authority' has erroneously relied on the Judgement of the NCLAT Principal Bench, New Delhi in the matter of 'Umang Realtech Pvt. Ltd.' (Supra). 17. It is submitted that CIRP was ordered against Dreamz Sneh Project vide 'Order' dated 15.02.2023 despite the fact that Hon'ble High Court of Karnataka had stayed the CIRP against Dreamz Infra India Ltd. vide 'Order' dated 07.11.2022. 18. It is submitted that the observations made against the then RP/R-18 by the 'Adjudicating Authority' is unwarranted and that the 'Adjudicating Authority' had initially no knowledge of the length and breadth of the case, whereas, by 17.12.2019, the 'Adjudicating Authority' had ample knowledge of the case, but incorrect observations were made. R-18 has prayed for setting aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, reasonable time could be allowed by the 'Adjudicating Authority' to bring about a proper Resolution. 23. The contention of the ERP/R-18 that another Bench of NCLT Bengaluru has erroneously admitted a Section 7 'Application' initiating CIRP against another Project namely 'Dreamz Sneh' and that it has to be set aside, is completely unsustainable as the 'Order' was passed in a separate Company Petition dated 15.02.2023, and is based on a different cause of action. 24. Merely because the 'Adjudicating Authority' had relied on 'Umang Realtech Pvt. Ltd.' (Supra), wherein reverse Insolvency was a principle laid down by the NCLAT Principal Bench, New Delhi, and this Project did not have a Promotor to infuse funds, which was the case in 'Umang Realtech Pvt. Ltd.' (Supra), the principle of 'Project Wise Insolvency' also discussed in in 'Umang Realtech Pvt. Ltd.' (Supra), cannot be overlooked and requires considerable attention as it applies to the facts of this case. 25. The Hon'ble Supreme Court has upheld the 'Order' of NCLAT in 'Ram Kishor Arora Suspended Director of Supertech Ltd.' (Supra), and observed that if CoC would be constituted for Supertech Ltd., as a whole, it would ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
