TMI Blog2024 (4) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant / Petitioner, takes a stand that in the Order dated 09.05.2022 of the National Consumer Disputes Redressal Commission (vide Consumer Complaint No. 1951 of 2016), the plea of the Respondent / Corporate Debtor ascribing reasons, in regard to the delay, relating to the time, when the Respondent / Corporate Debtor, accepted the bookings from the Allottees, and regularly raised demands and accepted amounts, from the Allottees, were rejected, a clear adverse circumstance, against the Respondent / Corporate Debtor, all the more, when the outbreak of Pandemic Covid-19, came after a decade. The emphatic stand of the Respondent / Corporate Debtor is that Sushant Megapolis Township, comprise of Multiple Commercial Real Estate Projects, all the sub-projects are independent of each other, and were being developed and sold as separate Projects, within the Township. Moreover, they were Registered, under RERA Act, 2016, with different RERA Registration Numbers. As a matter of fact, each Project, is further divided into Multiple phases, with different complete Schedules - Indeed, as per definition Section 5(8)(f) explanation (ii) of the I B Code, 2016, the expressions 'allottee' a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Real Estate (Regulation Development) Act, 2016 (16 of 2016), with a view to fulfil the requirement of 10% or 100 Allottees , as envisaged, as per Section 7 (1) of the I B Code, 2016. This Tribunal, on a careful consideration of divergent contentions, advanced on either side, considering the facts and circumstances of the instant case, comes to an irresistible and consequent conclusion that the CP (IB) No. 596 (PB) / 2021, filed by the Appellant / Petitioner and other Petitioners, before the Adjudicating Authority / NCLT, Principal Bench, New Delhi, is prima facie not maintainable in the eye of Law. Further, this Tribunal, on going through the Impugned Order, dated 06.01.2023 in CP (IB) No. 596 (PB) / 2021, passed by the Adjudicating Authority / Tribunal, the views expressed in dismissing the CP (IB) No. 596 (PB) / 2021, is free from any legal flaws. Appeal dismissed. - [ Justice M. Venugopal ] Member ( Judicial ) And [ Mr. Arun Baroka ] Member ( Technical ) For the Appellant : Mr. Sahil Sethi , Mr. Samriddh Bindal Mr. Vikash Kumar , Advocates For the Respondent : Mr. Anshuj Dhingra , Ms. Shubhangda Singh Ms. Muskan Banga , Advocates JUDGMENT ( Hybrid Mode ) Justice M. Venugopal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or failed to refund the said amount as paid by the said Applicant and did not even respond to the notice. VII. The Applicants till date have not received possession of their said units and the construction of the said project is still far from completion. It is submitted that a representative group of allottees of the project Sushant Megapolis even approached the Hon ble National Consumer Disputes Redressal Commission ( NCDRC ) under the provisions of Section 12(1)(c) of the Consumer Protection Act, 1986 (that provides class action by consumers) on behalf of all such allottees of the project who wanted a refund of the amount paid to the Corporate Debtor. That the Hon ble NCDRC noted that in the case of the project Sushant Megapolis , development works are not complete even in 12 years and therefore allowed the consumer complaint vide order dated 16.10.2020 with directions to the Corporate Debtor to refund the entire principal amount received from the allottees along with compensation in the form of simple interest @ 8% per annum, to the allottees of plots in the project Sushant Megapolis who do not wish to wait anymore for possession. It is submitted that the Corporate Debtor even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law Tribunal , Principal Bench, New Delhi, in CP (IB) No. 596 (PB) / 2021, holding that the Section 7 Petition , filed under I B Code, 2016, is not maintainable , since the Allottees , belong to different Projects , and the Impugned Order , was passed without, considering the facts, placed on record. 5. It is represented on behalf of the Appellant that the Impugned Order , came to be passed, without considering the fact that all the Applicants , before the Adjudicating Authority / Tribunal , in Section 7 Application of the I B Code, 2016, had entered into respective Buyer / Builder Agreements, much before the Real Estate (Regulation and Development) Act, 2016 (16 of 2016) , came into force. In fact, the said Agreements , specifically, defines that Sushant Megapolis / Megapolis , as one complete Project . 6. It is the version of the Appellant that Adjudicating Authority / Tribunal , had wrongly interpreted explanation (ii) of Section 5 (8) of the I B Code, 2016, to mean that each RERA Registration , would constitute a Real Estate Project , and Creditors in a Class / Allottees , while filing an Application , under Section 7 of the I B Code, 2016, shall have to meet the criteria (Viz. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip located adjoining Greater Noida by the name of MEGAPOLIS , comprising of various PLOT s, Row Houses / Flats, Bungalows, High-rise Apartments, Schools / Educations Institutions, Hospitals / Health Centres, Corporate Parks, Commercial and Retail Centres, Hotels / Clubs and Leisure Areas etc., apart from all such areas that would be required for development of a modern township on the Scheduled Property ( Project ) in accordance with sanctioned plans and approvals and as provided for a Hi-Tech Township Scheme of the Government. 12. According to the Appellant, the Single Layout Plan , for the Hybrid Project Sushant Megapolis / Megapolis, reflecting Group Housing, Plots and EWS Units as part of one Project , comprising of 2504 Acres of Property , and that the Recital Clause (e) of the Allotment Agreement, indicate that a Single Layout Plan , was submitted by the Corporate Debtor , for an Approval , by the Competent Authority . Also that, a perusal of the Supplementary Development Plan , submitted by the Corporate Debtor (To the Competent Authority ) as on November 2016, and available on the RERA Website , reveals that the entire Hightech City / Township Megapolis , even in the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is observed that a real estate Project, can be composite one , for Plots and Apartments or for Plots Buildings . 17. Further, the definition of Allottee , is split into three Categories, broadly Plot , Apartment and Building and the Purchasers of these are covered under the term Allottee at Paragraph No. 153 of the decision the Hon ble Supreme Court, in Manish Kumar v. Union of India Anr., reported in (2021) 5 SCC OnLine SCC 1. Also, it was laid down, in cases where a real estate project , is a Hybrid Project, consisting of development of land into Plots and also development of Buildings , then, even a Transferee of a Plot , will be an Allottee . 18. The Learned Counsel for the Appellant, refers to the decision of Hon ble Supreme Court in Manish Kumar s case, reported in (2021) 5 SCC, Page 1 and Spl Pg: 98, wherein, at Paragraph No. 158 of the aforesaid decision, it is observed as under: As to what would constitute a real estate project, it must depend on the terms and conditions and scope of a particular real estate project in which allottees are a part of. These are factual matters to be considered in the facts of each case. 19. The Learned Counsel for the Appellant, contends t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retative process, especially when the Hon ble Supreme Court in Manish Kumar s case, has, after analysing the provisions of RERA Act, 2016 and I B Code, 2016 , had held that the Real Estate Project , has to be judged on case-to-case basis. 23. It is the version of the Appellant that the Reason for mandating that the Allottees , should be of the same Real Estate Project , is only because such Allottees , have commonality of interests . In the instant case, since, the Complete Township , which is divided into several Sub-Projects (as per RERA 2016) and has commonality, altogether remains incomplete , for a long period of time , therefore, it is necessary that the Corporate Insolvency Resolution Process , may be initiated against the Complete Township , being a single Project, in terms of the relied on, by the Appellant . 24. The Learned Counsel for the Appellant contends that the interpretation of the Adjudicating Authority / Tribunal , in the Impugned Order , will give an irrational meaning , to the provisions of the I B Code, 2016. For eg., if in case a Project , comprises of three buildings , which are to be developed, along with common areas such connecting Roads, Parks, Swimming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otment Agreements , with Hundreds of Allottees and collected Hundreds of Crores of Rupees , to acquire peaceful possession of the Lands , for the Project . 29. According to the Appellant, all the 107 Allottees , who were parties to the Section 7 Application of the Code, belong to the Real Estate , the documents, such as the sanctioned Map of the Project, Agreements, entered between the Developer and the Allottees , Environmental Clearance, Marketing Brochure and Letters , were issued by the Respondent, were placed before the Adjudicating Authority / Tribunal and despite the said documents clearly demonstrating that a Single Project , in question, namely Sushant Megapolis , and hence, all the Applicant Allottees , belong to the same Real Estate Project , the Adjudicating Authority / Tribunal , contrary to entering into a fact based Assessment of the Terms and Conditions of Allotment and scope of the Real Estate Project , as mandated by the Hon ble Supreme Court in Manish Kumar s decision, through the Impugned Order , dated 06.01.2023, had dismissed the Section 7 Application, filed under the I B Code, 2016, that the Applicant Allottees , are not from the same Real Estate Project , re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd proviso to Section 7 of the I B Code, 2016. 33. The Learned Counsel for the Appellant contends that, if in case a Project , comprises of three buildings, which are to be developed, along with the common areas, such as connecting Roads, Parks, Swimming Pools, etc., in different places, then the Developer , in compliance with Section of the RERA , will obtain three separate RERA Registrations , for each of the Buildings . 34. The Learned Counsel for the Appellant takes a plea that as per the Impugned Order of the Adjudicating Authority / Tribunal , 100 or 10% of the Allottees , from the same Building , and not from the same Real Estate Project , will then, have to come together, to meet the threshold, prescribed under second proviso to Section 7, on a per Building basis , which was never the intent behind inserting the proviso. As such, the interpretation, laid down by the Adjudicating Authority / Tribunal , is an incorrect one, besides, defeating the Object of the Code and Legislative Intent , behind recognising Allottees , as Financial Creditors , through explanation added to Section 5 (8) (f) of the Code . 35. The Learned Counsel for the Appellant, refers to Paragraph 177 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivity. 40. According to the Learned Counsel for the Respondent in the aforesaid Manish Kumar s Judgment, the Hon ble Supreme Court, had clearly observed and held that the said provisos and requirements for maintaining a Petition by one tenth or at least 100 Allottees , in a real estate project , under Section 7 of the I B Code, 2016, to be constitutional in terms of the objects of the Code which provides for the interest of various Stakeholders, including the non-parties to the Petition, as in the present case, who may oppose the Application by the selective few Allottees and thus, cannot be considered to be the critical mass of allottees , in a real estate Project, and is clearly not aimed at being a recovery proceeding which remedy otherwise has been provided to the allottees under the RERA Act, 2016, as well as the Consumer Protection Act . 41. The Learned Counsel for the Respondent, comes out with a plea that the proceedings , under the I B Code, 2016, are in Rem , as per decision of the Hon ble Supreme Court of India in Manish Kumar s case and if no safeguard, as in the form of provisos to Section 7 of the Code , are provided thereto, then, the same would lead to an Abuse of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining who will be Allottees , and therefore, what would constitute one-tenth of total number of Allottees , must depend upon the nature of the Real Estate Project , in question. Further, it will depend on what is offered by the Promoter , under the project. It may be Real Estate Project , which seeks, to Develop a building , and sale of the Building. It may be a project for the Construction of Apartments with the Agreements , to convey, the undivided interest of land also. It may be a project which envisages, converting an existing Building or a part into an Apartment . It may be a Project , which envisages an existing Building or a part in to an Apartment for merely development of land into plots and the sale of the plotted land , as such. 45. The Learned Counsel for the Respondent, points out that the Appreciation of Allotment , by the Hon ble Supreme Court of India, to further, illuminate the questions, as to the Allottees and a Real Estate Project , such that, it is opined that what is required is Allotment and not promised Flats as per Brochure . It is also not the total constructed units . This is as what is relevant under the impugned provisos, read with Section-5(8)(f) expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er , while taking into account the three distinctive features , of the Real Estate Allottees . 50. The Learned Counsel for the Respondent, points out that the Adjudicating Authority / Tribunal , had made inquiry and considered all the records pertaining to the Township Sushant Megapolis including the allotment agreements of the allottees which time and again show the intent of the Promoter to sell a unit in a project in the Township, which factum, as stated even in Manish Kumar, cannot help to construe the entire Township , to be a Single Project , neither other facts, as to sanctioning of Single Layout Plan , for the entire Township, as available on the RERA website . 51. The Learned Counsel for the Respondent , takes a stand that from the Impugned Order , passed by the Adjudicating Authority / Tribunal , it is evident from the findings in para 9(iv) thereof that the entire record of the Corporate Debtor , including the Pre-RERA Allotment Agreements , layout plans, environmental clearances, obtained for the Township Sushant Megapolis , as well as the RERA Registration of 25 separate Projects , in the said Township Sushant Megapolis , were taken into account, based on the same, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Spl Pgs: 43 57 wherein, at Paragraph Nos. 8, 47 48, it is observed as under: 8. Under the second proviso, a new threshold has been declared for an allottee to move an application under Section 7 for triggering the insolvency resolution process under the Code. The threshold is the requirement that there should be at least 100 allottees to support the application or 10 per cent of the total allottees whichever is less. Moreover, they should belong to the same project. Almost all (except in two petitions), the petitioners also had under the erstwhile regime which permitted even a single allottee to move an application under Section 7 filed petitions singly or with less than the number required under the proviso and they are visited with the provisions of the third proviso as per which such of those applications under section 7 which had not been admitted would stand withdrawn within 30 days, if the newly declared threshold of 100 allottees or 10 per cent of the allottee whichever is lower was not garnered by the applicant/applicants. 47. It was submitted that the right to file an application under Section 7 is a statutory right and it can be conditioned. Reliance is placed on judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is necessary to travel to Section 2(d) and 2(zn)of RERA for the reason that in Section 5(8)(f) of the Code, the following Explanation was inserted by Act 26 of 2018 w.e.f. 06.06.2018. This provision has been upheld by this Court in Pioneer Urban Land Infrastructure Ltd. v. Union of India (2019) 8 SCC 416: 5(8)(f) xxx xxx xxx Explanation. For the purposes of this sub- clause, (i) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and (ii) the expressions, allottee and real estate project shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016; 148. Real estate project may relate to plots, apartments, or buildings or plots/apartments and plots/buildings. As far as the expression allottee is concerned, since the Code in the Explanation to Section 5(8)(f), incorporates the definition of the word allottee in RERA, for the purpose of the provisos in question, we must necessarily seek light only from the expression allottee defined in Section 2(d) of RERA. 58. The Learned Counsel for the Respondent, advert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining the word promoter . The said section reads as under : (zk) promoter means, (i) xxx xxx xxx (ii) xxx xxx xxx (iii) xxx xxx xxx (iv) xxx xxx xxx (v) xxx xxx xxx (vi) such other person who constructs any building or apartment for sale to the general public. Explanation. For the purposes of this clause, where the person who constructs or converts a building into apartments or develops a plot for sale and the person who sells apartments or plots are different person, both of them shall be deemed to be the promoters and shall be jointly liable as such for the functions and responsibilities specified under this Act or the rules and regulations made thereunder; 152. Therefore, a conspectus of the provisions would show that having regard to the legislative intention the term allottees as defined in Section 2(d) must be understood undoubtedly on its own terms predominantly. But at the same time the other provisions which form part of the Act and therefore the scheme must also be borne in mind. The Argument that the definition of allottee suffers from over inclusiveness and under inclusiveness needs to be considered. Under inclusiveness and over inclusiveness are aspects of the guarante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (2023) SCC OnLine SCC 1387, wherein at Paragraphs 23 24, it is observed as under: 23. . in terms of the Explanation in sub-Section 7(1), a financial debt need not be owed to the applicant and as joint application by more than one applicant was and is contemplated, the resultant position would be that any number of applicants, without any amount being due to them, could move an application under Section 7, provided that they are financial creditors and there is a default in a sum of Rs.1 crore even if the said amount is owed to none of the applicants but to any another financial creditor. This position has not undergone any change even with the insertion of the provisos. In other words, even though the provisos require that in the case of a real estate project, being conducted by a corporate debtor, an application can be filed by either one hundred allottees or allottees constituting one-tenth of the allottees, whichever is less, if they are able to establish a default in regard to a financial creditor and it is not necessary that there must be default qua any of the applicants. 24. Therefore, it is pertinent to state that Section 7(1) of the Code, 2016 mandates the Financial Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c-5, Vaishali Ghaziabad Subject: important Communication Dear Customer, At the outset we wish to thank you all for your support and patronage with which the Festival City (Project) is coming up inspite of various challenges/delays caused in obtaining various permissions and approvals (since obtained by the Company). We were monitoring the progress of the Project closely with an intention to expedite the same to ensure delivering of your Unit(s) as early as possible inspite of the many speed breakers/disturbances. We found that there was need for strengthening the process. If necessary reorganizing the Project implementation plan. We are happy to inform you that erstwhile Management for various reasons ultimately we decided to bring us as new and efficient implementing partner so that our esteemed buyers may be delivered their Units as early as possible. Accordingly, the arrangements of Anand Infoedge Private Ltd. ( AIPL ) with earlier collaborator (Mist Avenue Private Ltd) were cancelled in entirety and a new arrangement was entered with us on 27th July 2017. We have now taken charge of the project for early implementation. Our esteemed allottees/buyers shall be provided the Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant. Therefore, SBI is in the shoe of creditor standing against the Corporate Debtor for same set of debt before the DRT against which the Applicant is also claiming amount due under Section 7 of this Application. 4.3. It is submitted that no cause of action survives in favour of the Applicant and the Corporate Debtor is entitled to recover the amount of Rs. 1,30,15,711/- (Rupees One Crore Thirty Lakhs Fifteen Thousand Seven Hundred and Eleven Only) towards the Flat Nos. 302 303 for the balance sale consideration. 5. The Applicant also preferred Written Submissions vide Diary No. 2885/2023 dated 05.12.2023 wherein it has been contended that the Financial Creditor entered into three MOUs with the Corporate Debtor dated 04.11.2016 for Flat No. 302, 303 and 304 in the project named SUNRISERS for aggregate sale amount of Rs. 1,85,33,317/- (One Crore Eighty-Five Lakhs Thirty-Three Thousand Three Hundred and Seventeen Only), Rs. 1,83,42,394/- (Rupees One Crore Eighty-Three Lakhs Forty- Two Thousand Three Hundred and Ninety-Four Only) and Rs. 1,87,54,895/- (Rupees One Crore Eighty-Seven Lakhs Fifty-Four Thousand Eight Hundred and Ninety-Five Only). As per the MOUs an advance of Rs. 1,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pees Forty One Crores, Eighty One Lakhs Ninety Thousand One Hundred and Sixteen only) along with interest @ 18% per annum as on 15th March 2021 . Further, it was averred that the interest amount , is now statutorily payable, under the Estate (Regulation and Development) Act, 2016 from the date of Deposit . 66. Besides the above, it was averred in main CP (IB) No. 596(PB)/2021 by the Appellant / Petitioner , and other Petitioners that they are the Financial Creditors / Homebuyers / Allottees , who have purchased residential units / plots / apartments / parcel of land, in the project SUSHANT MEGAPOLIS (hereinafter referred as the Project ), being developed by the Corporate Debtor , namely M/s ANSAL HITECH TOWNSHIPS LTD. 67. As a matter of fact, the Appellant , and other Petitioners / Financial Creditors , before the Adjudicating Authority / Tribunal , under Part IV of the main CP (IB) No. 596 (PB) / 2021, had mentioned that the Government of State of Uttar Pradesh , selected M/s. Uttam Steel Associates (Consortium) for the development of Hi-Tech Township , at the location, near Dadri Town, adjoining Greater Noida, Uttar Pradesh, in accordance of the HI-Tech Township Policy, dated 22. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents in the project (hereinafter referred as Residential Unit ) and that the Corporate Debtor , had executed Allotment / Allottee(s) Arrangement Agreements , with the Financial Creditors , containing totally arbitrary and one-sided terms. Also that as per terms of the Agreement, the time for handing over possession of the allotted unit from 42 months to 3 years , from the Date of Sanction of the Layout plan of the Allotted Unit and other contingent dependent aspects, varying from the type of Allotted Residential Unit . That apart, according to the Appellant , No definite time frame , for delivering possession of the Residential Units to the Allottees , was not incorporated in the Agreements. 70. As per the Appellant s Claim , the Total Sum , to be claimed, in Default in the main Company Petition , was Rs.41,81,90,116/-, as on 15.03.2021. Features of Reply of the Respondent / Corporate Debtor : 71. The Respondent / Corporate Debtor in its Reply , to CP (IB) No. 596 (PB) / 2021 (On the File of the Adjudicating Authority / Tribunal ), had mentioned that the Alleged Financial Creditors , are the Home Buyers / Investors , claiming to have purchased Residential Flats / Plots in the Towns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handed over to Multiple Allottees of the various Group Housing Project and well as Commercial Projects, and if the Respondent / Company is forced into Insolvency Proceedings , the whole Project and its future will be jeopardised. 76. It is represented on behalf of the Respondent / Corporate Debtor that the main CP (IB) No. 596 (PB) / 2021, was filed with a mischievous endeavour , on the part of some of the Applicants , to extract money, from the Respondent / Company, when they are not even Genuine Bona fide Home Buyers . 77. Furthermore, the main CP (IB) No. 596 (PB) / 2021, filed by the Petitioners , is to be dismissed ipso facto , in the teeth of Section 3 of the I B Code (Amendment Act 2020) whereby, Section 7 of the I B Code, 2016, was amended and by virtue of the Amended Section 7 of the Code , the Adjudicating Authority / Tribunal , ought to dismiss an Application , if the Application was not foiled by at least, 100 Allottees or 10% of the Total Allottees of the same Real Estate Project . 78. In fact, the Petitioners do not satisfy the required criteria, as they do not constitute either 100 Allottees or 10% of the Total Allottees of the same Real Estate Project . The Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttees , even though, the said Unit , is jointly held. In fact, the relevant extract of the aforesaid decision of Hon ble Supreme Court, at Paragraph 147, is as under: 147. As far as the situation projected about, there being no clarity regarding whether, if there is a joint allotment of an apartment to more than one person, is it to be taken as only one allottee or as many allottees as there are joint allottees, it would appear to us, on a proper understanding of the definition of the word allottee in Section 2(d) and the object, for which the requirement of hundred allottees or one-tenth has been put, and also, not being oblivious to Section 399(2) of the Companies Act, 1956, as also the Explanation in Section 244(1) of the Companies Act, 2013, in the case of a joint allotment of an apartment, plot or a building to more than one person, the allotment can only be treated as a single allotment. This for the reason that the object of the Statute, admittedly, is to ensure that there is a critical mass of persons (allottees), who agree that the time is ripe to invoke the Code and to submit to the inexorable processes under the Code, with all its attendant perils. The object of maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nistration , had failed to take any such steps, which resulted in disruption, of the Construction Activity . 85. It is the version of the Respondent / Corporate Debtor, that the Landowners of the notified Township Area , had defaulted in their deal of Selling the Land to the Respondent, causing further delay in the construction of the said Project . Later, the Project further delay, due to a Stay Order , passed by the National Green Tribunal , in Akash Vashishta Anr. v. Union of India (vide OA No.121 / 2013), wherein a Stay Order , was passed on the construction of the Township , upon false allegations that the Respondent Developer , had reclaimed and encroached upon wet lands , and further, carried out Construction on such Land . Finally, the Stay Order in MA No. 1121 /2016 in OA No.121 /2013, was vacated by the National Green Tribunal , on 12.09.2017 (after a gap of four years), which caused a delay , in completing the Project . 86. The Respondent / Corporate Debtor, points out that the License for developing the Township, was granted on 26.11.2006, by the Uttar Pradesh Government with the Construction site, to be completed on 25.11.2016. However, due to the unforeseen delay, cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state project with Real Estate Regulatory Authority , which reads as under : (1) No promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority , established under this Act. Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act. . . Explanation. For the purpose of this section, where the real estate project is to be developed in phases, every such phase shall be considered a standalone real estate project, and the promoter shall obtain registration under this Act for each phase separately . 92. The contention of the Learned Counsel for the Respondent / Corporate Debtor is that, the Respondent / Company, was required by the provisions of RERA , to register each sub-project separately, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of selling all or some of the said apartments or plots or building, as the case may be, and includes the common areas, the development works, all improvements and structures thereon, and all easement, rights and appurtenance belonging thereto; 95. The Learned Counsel for the Respondent / Corporate Debtor contends that the Adjudicating Authority / Tribunal , is not a Recovery Forum , but, only a Resolution Forum . As a matter of fact, the Hon ble Supreme Court in the matter of Swiss Ribbons Private Limited Anr. v. Union of India Ors., reported in (2019) 4 SCC at Page 17, had observed that the I B Code, 2016, is a beneficial legislation which puts the Corporate Debtor, back on its feet and not being a Recovery Legislation for Creditors . 96. According to the Respondent / Corporate Debtor, Section 65 (1) of the I B Code, 2016, discourages the use of the I B Code, 2016, as a Recovery Mechanism , and even, Section 65 of the Code , prescribes a penalty , for those who initiate the Corporate Insolvency Resolution Process or Liquidation , Fraudulently or with a Malicious Intent . The Appellant (Petitioner), and the other Petitioners, who initiated the Malicious Proceedings in CP (IB) No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order of admission under Section 7 of the IB Code must follow. If the NCLT finds that there is a debt, but it has not become due and payable, the application under Section 7 can be rejected. Otherwise, there is no ground available to reject the application. and contends that the Adjudicating Authority / Tribunal , had committed an error , in passing the Impugned Order in CP (IB) No. 596 (PB) / 2021, on the file of the Adjudicating Authority / Tribunal . 100. According to the Appellant / Petitioner (himself and other Petitioners), had entered into a Buyer / Building Agreement(s) with the Respondent / Corporate Debtor and it is understood, that along with their respective Units / Plots , the Allottees , shall have the access to the surrounding facilities. Resultantly, the Allottees , make a total payment that encompasses both their unit and the development of the surrounding areas, ensuring a well-developed and habitable society for them to reside in. 101. The stand of the Appellant is that, in cases where a Builder / Developer, can secure different RERA Registrations , for different parts of a particular project , such as different Registrations , for specific Apartments or Buildi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Force Majeure condition. Further, it is observed that the particular Court would have to assess the conduct of the Parties prior to the outbreak and whether, genuinely, a Party was prevented or is able to justify its non-performance due to the epidemic / pandemic. 106. It is projected on the side of the Appellant / Petitioner, that the Appellant / Petitioner in Section 7 Application of the I B Code, 2016, (filed before the Adjudicating Authority / Tribunal ), has only made the Co-Allottees , as Parties, to the said Application . But, the Chart of the Allottees, filed before the Adjudicating Authority / Tribunal (vide Annexure A-8 of the Appeal Paper Book at Page 337) consists of 107 Unit Holders / Allottees , who had preferred the Application . Analysis : 107. At the outset, this Tribunal points out that according to the Appellant / Petitioner, in view of the fact that the Respondent / Corporate Debtor, had committed Default concerning the Financial Debt , as per Section 5 (8) (f) Explanation (i) of the I B Code, 2016, the Section 7 Application in CP (IB) No. 596 / 2021 (filed by the Appellant / Petitioner Other Petitioners), before the Adjudicating Authority / Tribunal , being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E CO APPLICANT 80 DEEPIKA BHATIA CO APPLICANT 83 DR. SANJEEV JAIN CO APPLICANT 85 USHA RAWAT CO APPLICANT 87 PRASHANT SHARMA CO APPLICANT 89 SHAYOK BURMAN CO APPLICANT 92 DHATRI VERMA CO APPLICANT 94 JAYA RAMKUMAR CO APPLICANT 96 NIVEDITA PANDEY CO APPLICANT 102 MANISHA RAI CO APPLICANT 107 SUMAN SAINI CO APPLICANT 109 ASHRU KANA CHOWDHURY CO APPLICANT 117 PARUL MAKKAR CO APPLICANT 121 VINOD SABHARWAL CO APPLICANT 123 VIDYAWATI TRIPATHI CO APPLICANT 125 HARSH MALHOTRA CO APPLICANT 127 SURUCHI KHANNA CO APPLICANT 130 SANGEETA MITTAL CO APPLICANT 132 PRASHANT KUMAR BAGGA CO APPLICANT 138 ROOPAM BHATIA CO APPLICANT 141 KULJIT SOOD CO APPLICANT 144 AMRITA PANDEY CO APPLICANT 149 NISHA AGARWAL CO APPLICANT 152 ANIL AHLUWALIA CO APPLICANT 111. The emphatic stand of the Respondent / Corporate Debtor is that Sushant Megapolis Township, comprise of Multiple Commercial Real Estate Projects , all the sub-projects are independent of each other, and were being developed and sold as separate Projects, within the Township. Moreover, they were Registered , under RERA Act, 2016, with different RERA Registration Numbers . As a matter of fact, each Project , is further divided into Multiple phases, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Buyers and are meant to protect them, from any Deviant / Fraudulent Action . 119. A mere perusal of Section 3 (1) Explanation of the Real Estate (Regulation Development) Act, 2016 , under the caption Prior registration of real estate project with Real Estate Regulatory Authority , points out that where the real estate project , is to be developed in phases, every such phases , shall be considered a standalone real estate project , and the Promoter , shall obtain Registration, under this Act, for each phase , separately. 120. In the instant case, the Respondent / Corporate Debtor, had executed, at least Three kinds of Agreements, with the Petitioners (before the Adjudicating Authority / Tribunal ) (a) Plot Allottee Agreement (b) Builtup Unit Allottee Agreement and (c) Apartment Allottee Agreement . 121. One cannot ignore an important fact, that the second proviso to Section 7(1) of the I B Code, 2016, mentions that for financial creditors , who are allottees , under a real estate project , an application , for initiating Corporate Insolvency Resolution Process , against the Corporate Debtor , shall be filed jointly by not less than one hundred of such allottees , under the same r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IB) No. 596 (PB) / 2021, under Section 7 of the I B Code, 2016, read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, before the Adjudicating Authority / Tribunal , for initiating Corporate Insolvency Resolution Process , against the Respondent / Corporate Debtor , are from different numerous projects , and they have not established their case, as Creditors of a class , concerning any particular project , registered with The Real Estate (Regulation Development) Act, 2016 (16 of 2016), with a view to fulfil the requirement of 10% or 100 Allottees , as envisaged, as per Section 7 (1) of the I B Code, 2016. 128. Be that as it may, in the light of the detailed foregoings, this Tribunal , on a careful consideration of divergent contentions, advanced on either side, considering the facts and circumstances of the instant case, comes to an irresistible and consequent conclusion that the CP (IB) No. 596 (PB) / 2021, filed by the Appellant / Petitioner and other Petitioners, before the Adjudicating Authority / NCLT , Principal Bench, New Delhi, is prima facie not maintainable in the eye of Law . Further, this Tribunal , on going through the Im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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