TMI Blog2024 (2) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... AT) (Insolvency) No.1478 of 2022 was filed by the Appellant, which was decided by this Tribunal on 17.11.2023 [ 2023 (11) TMI 782 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] . In the Appeal, one of the issues framed was whether Section 7 Application filed by the allottees fulfils the threshold as prescribed under the IBC. The Hon ble Supreme Court in the case of Amarsang Nathaji [ 2016 (11) TMI 1658 - SUPREME COURT] has held that Court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred in Section 340(1) CrPC. The Adjudicating Authority has rightly not initiated proceeding under Section 340 of CrPC. In view of the facts of the present case, there are no error in decision of the Adjudicating Authority not to direct any action under Section 340(1) of the CrPC. Penalty under Section 65 of the Code can be imposed when there is fraudulent or malicious initiation of proceedings. In the present case, the Applicants who are allottees in real estate project have filed the Application to protect their rights and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother Company Anand Infoedge to develop land measuring 100,980 sq. mtrs bearing Plot No.1, Sector 143, Noida. The real estate project could not be completed within the stipulate time, an Application under Section 7 was filed by Nitin Batra and other 143 allottees/ Applicants representing 115 units in the project on 11.10.2021. The Appellant herein was impleaded as Respondent No.3 in Section 7 Application. (ii) The Appellant raised objection to the maintainability of Section 7 Application on the ground that threshold limit of 100 allottees for filing of Section 7 Application is not fulfilled in the Application, hence, the Application deserves to be rejected. The Adjudicating Authority by order dated 21.10.2022 rejected the objection raised by the Appellant and held that Section 7 Application is maintainable as it fulfils the threshold limit prescribed under Section 7. The Appellant filed an Appeal being Company Appeal (AT) (Insolvency) No. 1478 of 2022 challenging the order dated 21.10.2022. This Appellate Tribunal vide its judgment and order dated 17.11.2023 dismissed the Appeal filed by the Appellant and upheld the order dated 21.10.2022. Against the judgment of this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown to have been sworn on 25.08.2021 whereas, Application under Section 7 was filed much after in October 2021. There were no corresponding entries by the Nortary in the Register when the affidavits were sworn. It is further submitted that one of the Applicant Shri Ajay Khajuria, who is Application No.106 has given a declaration that he has not signed the affidavit, which was filed before the Adjudicating Authority, since there is visible difference in his signature. The learned Counsel for the Appellant submits that the aforesaid material information were not before the Appellant earlier and it came to its knowledge subsequently. Hence, the Applications were filed. Fraud or forgery vitiated the entire proceedings and Adjudicating Authority committed error in refusing to direct for investigation under Section 340 CrPC. 5. The learned Counsel for the Respondent refuting the submissions of the Appellant submits that there was no deficiency in the Application filed under Section 7 and the requirement of law is that Application has to be endorsed by 100 allottees. Affidavits, which is claimed by Appellant to be forged were the affidavits authorizing Respondent Nos.1, 2 and 3 to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oticed the issues framed in the Appeal, which are as follows: 9. Three main questions which arise for consideration in this Appeal are:- (i) Whether the joint application under Section 7 against Anand Infoedge Pvt. Ltd. , Mist Avenue and Mist Direct is maintainable? Three Respondents- Appellants herein being separate corporate entities. (ii) Whether Section 7 Application filed by the allottees fulfils the threshold as prescribed under the IBC? (iii) Whether while scrutinizing the claims of each applicants of joint application filed under Section 7, it has to be established that the financial debt exist against each applicant in which default has been committed and the claim of the applicants is not barred by limitation and applicants fulfil all eligibility of valid allottee who is entitled to file Section 7 application? 8. This Tribunal considered the Issue Nos.1, 2 and 3 and by detailed judgment held that Application is fully maintainable. In paragraphs 46 and 47, following was held : 46. We thus are of the view that the Adjudicating Authority did not commit any error in returning the finding that threshold as required by Section 7(1), seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In paragraph 10 of the impugned order, following has been observed by the Adjudicating Authority : 10. In light of the above, we find no merit in the present Application filed for dismissal of IB-682/PB/2021 which a Section 7 Application. The present Application appears to be misleading, filed only for the purpose of delaying the adjudication of IB682/PB/2021. The applicant has failed to appreciate that the intent behind classification of homebuyers as Financial Creditor by the legislature was to enable homebuyers to participate in the insolvency resolution process in a constructive and egalitarian manner. The Applicant is insisting on dismissal of the Section 7 Petition even after the same has been held maintainable by the Hon ble NCLAT vide order dated 17.11.2023 and the Hon ble Supreme Court vide order dated 11.12.2023 has held that the issue of maintainability shall stand concluded by the order dated 17.11.2023 insofar as the Adjudicating Authority and NCLAT are concerned. The malafide intention of the Applicant to delay the adjudication of the Section 7 Petition is also evident from the fact that the Applicant never raised this contention of affidavits being forged d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was signed by Respondent Nos.1, 2 and 3, the Authorised Representative of homebuyers/ allottees. Copy of the Application has been brought on record by the Appellant itself as Annexure A-2 to the Appeal, which indicate that Application was jointly filed by 143 Applicants, which Application was signed by only three allottes, who claimed to be representative/ power of attorney holder of the other Financial Creditors. 13. The three Respondents, who claimed to be Authorised Representatives of the homebuyers and who have signed the Application, have filed their joint affidavit in reply to IA No.5400 of 2023, where they reiterated that they are the Authorised Representative of other Financial Creditors and the reply has been drafted on instructions of other Financial Creditors. It is also on the record that those six Applicants, who are claimed to be sworn false affidavit, have also filed subsequently another affidavit before the Adjudicating Authority on 24.08.2023. The said fact has been pleaded by the Appellant in List of Dates and events at 2nd Item at page-9, which is to the following effect: 24.08.2023 6 applicants filed their fresh affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st public justice and more specifically referred in Section 340(1) of the CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. 15. The Hon ble Supreme Court in the above case of Amarsang Nathaji has held that Court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred in Section 340(1) CrPC. The Adjudicating Authority has rightly not initiated proceeding under Section 340 of CrPC. In view of the facts of the present case, we see no error in decision of the Adjudicating Authority not to direct any action under Section 340(1) of the CrPC. 16. Secondly, insofar as prayer of the Appellant that proceeding under Section 65 be made and penalty be imposed on the Financial Creditors, it is relevant to quote Section 65, which is as follows: 65. Fraudulent or malicious initiation of proceedings. - (1) If, any person initiates the insolvency resolution process or liquidation proceedings fraudulently or with malicious intent for any purpose other than for the resolution of inso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there exists no remaining or subsisting claim of the Applicant against the Corporate Debtor. Therefore, the Applicant is desirous of withdrawing the claim filed against the Corporate Debtor under Section 7 of the Code. Accordingly, the Applicant has also submitted that he revokes the Authority granted to Mr. Nitin Batra, Col Gulshan Singh Joneja and Mr. Gaurav Bhardwaj. In view of the above, the Applicant Mr. Ajay Khajuria, is permitted to withdraw his claim in the Section 7 application. 19. It is relevant to notice that when Khajuria has withdrawn the claim, there was no such allegation made in the IA No.3755 of 2022 that he has not signed the affidavit. Khajuria has given the letter to Corporate Debtor that his signatures in the affidavit, which was filed along with the Application are dissimilar. Khajuria has not even filed an affidavit saying that he did not sign the affidavit, which was earlier filed. More so, when Khajuria has withdrawn his claim and he is no longer part of Section 7 Application, any certificate given by him to the Corporate Debtor, does not give any ground to the Appellant to challenge the proceeding. The Adjudicating Authority thus, considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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