TMI Blog2023 (7) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant to admit the claim of the Appellant having been finally rejected upto the Hon ble Supreme Court, could not have been entertained and deserve to be rejected. The present is a case where although Appellant has not filed any claim but the booking amount of the 50 flats as is claimed by the Appellant is reflected in the Resolution Plan itself which indicate that the said was part of the Information Memorandum - The present is a case where Appellant could not have prayed for any direction on the basis of orders of this Tribunal in Puneet Kaur vs. K.V. Developers Pvt. Ltd. Ors. [ 2022 (6) TMI 108 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI ] because the Resolution Plan notice the claim of the Appellant of booking of 50 units. It is noted that in so far as 9 units which according to the Appellant are in his possession, Resolution Professional has submitted that necessary transfer documents shall be executed in event the Appellant complies the necessary terms and conditions. Hence, the said prayer needs no consideration. The Adjudicating Authority did not commit any error in rejecting I.A. No. 3640 of 2022 filed by the Appellant. There is no mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs., Company Appeal (AT) (Ins.) No.390 of 2022 another I.A. No. 3640 of 2022 was filed by the Appellant praying for various directions. The said application has been dismissed by the Adjudicating Authority by impugned order dated 30.11.2022, challenging which order this appeal has been filed. 2. We have heard Shri Arun Kathpalia, learned senior counsel for the Appellant. Shri Apoorv Agarwal, learned counsel for the Resolution Professional and Shri Abhijeet Sinha, learned counsel for the Respondent No.2, Successful Resolution Applicant. 3. Shri Arun Kathpalia, learned counsel for the Appellant submits that the Adjudicating Authority failed to appreciate that the Appellant was entitled to benefit of judgment passed by this Tribunal in Puneet Kaur vs. K.V. Developers Pvt. Ltd. Ors. . The judgment of Puneet Kaur has to be applied retrospectively and the said decision has to be regarded as the law as existed on 21.09.2021 when the earlier application of the Appellant was rejected. The Resolution Professional has admitted that the Appellant has possession of 9 flats in the project of the Corporate Debtor. The Resolution Professional being aware of the factual position vis- -v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken note in the proceeding and being dealt in the Resolution Plan no benefit can be claimed by the Appellant by the judgment of this Tribunal in Puneet Kaur vs. K.V. Developers Pvt. Ltd. Ors. . 6. Learned counsel for the parties have placed reliance on judgment of this Tribunal and the Hon ble Supreme Court which shall be referred to while considering the submissions of respective parties. Before we enter into respective submissions of learned counsel for the parties, it is necessary to notice series of litigation which was undertaken in the very CIRP of the Corporate Debtor. 7. The CIRP of the Corporate Debtor commenced by order dated 20.08.2019. Last date for submission of claim as per Form A was 03.09.2019. It was on 16.06.2020, when the claim was filed by the Appellant in Form CA which was rejected by the Resolution Professional on 24.03.2021. I.A. No. 3213 of 2021 was filed by the Appellant, where following reliefs were claimed: (a) allow the instant application of the Applicant; (b) condone the delay of the Applicant in presenting the claim before the RP; (c) issue necessary directions to the RP to consider the claim of the Applicant; (d) direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded in Information Memorandum. Certain directions were issued by this Tribunal in said case directing the Resolution Professional to provide all details of homebuyers alongwith their claims as reflected from the record of the Corporate Debtor, who had not filed their claims. The Resolution Applicant was required to prepare an addendum, which was to be placed before the CoC. An I.A. No. 3640 of 2022 was filed by the Appellant relying on the judgment of this Tribunal in Puneet Kaur vs. K.V. Developers Pvt. Ltd. Ors. . In the said I.A. following reliefs were claimed by the Appellant: i. Allow the instant Application; ii. Direct Respondent No. 1 to admit the claim in light of the fresh facts and circumstances; and; iii. Direct the Respondent No.2 to consider the claims of the Applicant as the part of Resolution Plan; and; iv. Direct Respondent No. 1 to execute registration of conveyance deeds for the (nine) 9 flats whose possession had been handed over to the Applicant; v. Pass any other orders as this Hon ble Adjudicating Authority may deem fit and proper in view of the facts and circumstances of the present case. 10. The I.A. No. 3640 of 2022 has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that principles of res judicata apply in different stages of the same proceedings. (See Satyadhyan Ghosal v. Deorajin Debi and Prahlad Singh v. Col. Sukhdev Singh). 19. In Y.B. Patil it was held : 4. It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent state of that proceeding... 14. Hon ble Supreme Court further held that the res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties. In Para 30 following has been laid down: 30. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. estoppel by accord. 15. A three Member Bench of this Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of restoration of possession so far as Appellants 1 and 3 are concerned. At the most, the High Court could proceed in the case of Appellant 2. 39. Admittedly, Smt. Ayesha Begum, the original landholder, had 127 acres of land. The claim of the appellants was valid and maintainable in view of the provisions of Section 37-A of the 1950 Act. The High Court was not justified in observing that as the issue of restoration of possession remained pending before the authority for about nineteen years, the respondents were justified in getting adjudication of their rights regarding issuance of certificate as it had not reached the finality. Mere pendency of proceedings before the court/tribunal cannot defeat the rights of a party, which had already been determined. The High Court ought to have appreciated that proceedings were only in respect of execution of the orders which had already been passed. Thus, proceedings were for the consequential relief. The issue of restoration of possession is to be decided under Section 32 of the 1950 Act. Question of application of the provision of Section 35 ought to have been raised in the first round of litigation. Such an issue is required to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Tribunal in Puneet Kaur vs. K.V. Developers Pvt. Ltd. Ors. (Supra), this Tribunal in the said judgment delivered on 01.06.2022 laid down following in Para 21 and 23: 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 from Homebuyers, whose claims, which could not be filed within time, could not be wished away by the Resolution Professional, on the convenient ground that claims have not been filed by such Homebuyers. 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... free of any and all claims by these Allottees. 19. We may further notice that the plan also deals with the claims of those allottees who have not filed any claim before the Resolution Professional. Para 18.4 (xiii) is as follows: 18.4 (xiii). Allottee or decree holder of the Corporate Debtor, who has not filed their claim with the Resolution Professional, or if filed, has not been verified by the Resolution Professional, or if verified, has not been informed to the Resolution Applicant prior to submission of this plan, till the completion of project, shall be dealt at the sole discretion of the Resolution Applicant according to the merits of the case, by way of proper verification of the documents held by the Allottees. Upon determination or the genuineness of such claim, the principle amount received from such allottee in corporate debtor's account to the extent of 50% [subject to Clause 18.4(xx)] shall be refunded at the end of Qtr 12 from Start Date. Any other claim in relation to compensation, interest, penalty, etc. by any Allottees received in this period will be written off in full and shall be deemed to be permanently extinguished by virtue of the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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