TMI Blog2024 (1) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... t they are also to be treated as such alongwith other home buyers/financial creditors for the purpose of resolution plan and the argument raised by the Respondent that a provision has already been made in the resolution plan for the purpose of refund in Clause (B3)(c), there are no error in the impugned order and thus the present appeal is hereby dismissed though without any order as to costs. Appeal dismissed. - [ Justice Rakesh Kumar Jain ] Member ( Judicial ) And [ Mr. Naresh Salecha ] Member ( Technical ) For the Appellant : Ms. Pooja M. Sehgal, Mr. Prashant Jain, Ms. Atrayei Ghosh, Mr. Subham Paliwal, Ms. Nitya Prabhakar, Advocates For the Respondent : Mr. Prithu Garge, Mr. Parth B., Advocates ORDER Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , there is no question of dissent by 6 people amongst class. Even otherwise there is no proof of such dissent on record. 2. The decision of Deepak Khanna's case does not apply here, as in that case the RP treated the applicants as financial creditors and not as home buyers of a class. The applicants on their own plea of Real Estate Allottee having become part of the home buyers in a class duly represented by an authorised representative cannot now plead otherwise and seek for refund. 4. The Adjudicating Authority has also referred to Para 273.9 of the Judgment of the Hon ble Supreme Court in the case of Jaypee Kensington Vs. NBCC India Ors. 2022 (l) SCC Page 401. The said paragraph is also reproduced as under:- the homebuyers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equally with other home buyers/financial creditors. She has then referred to relevant portion of the resolution plan much less Clause (B3) Cancellation, Termination and Forfeiture (C) which read as under:- In case an Allottee wishes to voluntarily cancel his booking in the Project and seed refund of money from the CD, such Allottee will be refunded the amount deposited by him with the Corporate Debtor ..... deducting an amount equivalent to 10% of the Basic Sale Price of the flat as per the BBA. In case the amount to be deducted ..... the amount deposited by such Allottee with the Corporate Debtor, then no payment will be made to such Allottee nor will ....... be demanded from such Allottee. The refund will be made in the 48th month f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther homebuyers/financial creditors and no special treatment was to be given to the Appellants for the purpose of seeking relief in the present application. 10. We have heard Counsel for the parties and after perusal of record are of the considered opinion that the very fact that the Appellants have obtained a decree from UP RERA and the issue decided in the case of Vishal Chelani Ors. (Supra) was whether they form a separate class has been decided that they are also to be treated as such alongwith other home buyers/financial creditors for the purpose of resolution plan and the argument raised by the Respondent that a provision has already been made in the resolution plan for the purpose of refund in Clause (B3)(c), we do not find any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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