9911796707
TMI Blog2024 (6) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... order, this Appeal has been filed. 2. Brief facts necessary to be noticed for deciding the Appeal are : - 2.1. Greater Noida Authority by Lease Deed dated 26.12.2008 allotted Plot No.26/1 to M/s. Zestha Projects Pvt. Ltd. A joint Agreement was entered between M/s. Zestha Projects Pvt. Ltd. and the Corporate Debtor on 16.04.2007 for development of Plot of 40470 Sq. Mts. located in Knowledge Park-III, Greater Noida (U.P). The Corporate Debtor launched Real Estate Project on the lease land by name and style of Vardhaman I Valley. Project comprised of IT/ ITES office, Residential Units, Commercial Spaces and other facilities. The Respondents herein applied for allotment and after year 2007 have been allotted different units. Respondents-allottees have also paid 70% -100% of consideration and entered into respective Builder Buyer Agreements. Corporate Debtor had promised to complete and handover the possession in three to four years and further promised assured return @ 12% during the intervening period. A revised dates of possession was informed to the allottees as 2018-19 which was also not honoured. The project was registered with Real Estate Regulatory Authority, Uttar Pradesh on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early established the incomplete construction till date. Aggrieved by the order, this Appeal has been filed. 3. Appeal was entertained on 21.02.2023 and an interim order was passed directing the IRP to ensure that the Corporate Debtor run as a going concern and IRP to take steps for completion of project with the assistance of suspended directors/ex-management and employees and further the CoC was not to be constituted in pursuance of the impugned order. 4. We have heard Shri Saurabh Kirpal, Learned Senior Counsel for the Appellant, Shri Abhishek Anand, Learned Counsel for the Resolution Professional and Learned Counsel appearing for the allottees. 5. Shri Saurabh Kirpal, Learned Senior Counsel appearing for the Appellant challenging the impugned order submits that for completing the threshold of 100 allottees as required by Section 7 of the IBC, number of Financial Creditors are not to be counted and it is the units which are to be counted. It is submitted that the application was not filed by 100 unitholders and they were actually 99 unitholders only. It is submitted that subsequent impleadment of further unitholders shall not make the application maintainable since the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority has returned a finding that there are 122 allottees who have filed the applications. It is submitted that the Adjudicating Authority permitted amended memo of parties to be brought on record by order dated 12.09.2022, hence, the amended application can also be looked into to find out number of allottees. It is submitted that the project is neither completed nor any Occupancy Certificate has been given to the Corporate Debtor. Appellant himself has brought material on record to indicate that Greater Noida Authority has raised various objections with regard to claim of Corporate Debtor of Occupancy Certificate. Occupancy Certificate having not yet been issued, there is no occasion of handing over possession to the allottees. It is submitted that the Status Report filed by the IRP dated 11.10.2023 clearly indicate that all works pertaining to residential tower, IT block, commercial block are pending. Detailed report given by the IRP clearly indicate that No Occupancy or Completion Certificate has been received by the Corporate Debtor. Several NOCs are still waiting. It is submitted that the fact that certain commercial units have put their flex board/ addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 onetenth 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. 188. The object of maintaining speed in the CIRP and also the balancing of interest of all the stakeholders, would be promoted by the view that as in the Case of the Companies Acts, 1956 and 2013, that for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Adjudicating Authority. On 01.08.2022, IA No. 2524 of 2022, following order was passed:- "IA-2524/2022 This is an application filed by the Twenty Two (22) allottees claiming to be real estate allootees, seeking impleadment in the Section 7 Petition i.e., CP (IB)- 674(PB)/2021. Notice was ordered on 19.07.2022, at the request of the Ld. Counsel for the Respondent, time was granted to file his reply. He further submits that Reply is filed. Reply is taken on record. In view of the fact that the section 7 petition is not admitted so far, IA-2524/2022 is allowed and disposed." 12. Further IA No.2624 of 2022 filed by the two allottees was allowed by same order dated 01.08.2022 which is as follows:- "IA-2624/2022 This is an application filed by the two (2) allottees claiming to be real estate allootees, seeking impleadment in the Section 7 Petition i.e., CP (IB)- 674(PB)/2021. Notice was ordered on 19.07.2022, at the request of the Ld. Counsel Respondent, the time was granted to file his reply. Reply is filed, considered the same. In view of the fact that the section 7 petition is not admitted so far, IA-2624/2022 is allowed and disposed." 13. It is furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleria and assist the IRP to evaluate the status of completion of the Project for submission of report before this Hon'ble Appellate Tribunal. The status of each Block / Tower of the Project as per the Report submitted by the Surveyor is produced herein below : Sr. No. Tower/Block Name Pendency of Work in Percentage Observation noted by the Surveyor 1. Residential Tower: Studio (Basement), Apartment Ground floor and 13 floors. 65% * The Residential Tower is not currently ready for inhabitation. The Residential Tower is not ready for possession. 2. I.T Block: Basement, Ground Floor and Total 9 Floor. 52% * The IT. Block is not ready for functioning. 3. Hotel: Basement, Ground Floor and 8 Floors. 34% * The Hotel tower is not ready for possession The Hotel tower is not ready for functioning. 4. Club Block: Basement, Ground Floor and 9 floors. 91% Construction of the Ground and 9 floors of Club towers has not started yet (Only basement outer civil structure Present) 5. Commercial Block (Galleria): Basement, Ground Floor and 2 Floors 48% Many pendencies have been noted. 9. Furthermore, as per the report of the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Project site by the Answering Respondent, it can be assumed that the said Units were in the possession to the Unit holders/ buyers of the Corporate Debtor. A copy of the Photographs taken in respect of such Units is annexed herewith as Annexure R-9 (Colly)." 18. When we look into the Report of the IRP, it was clearly mentioned that there were no possession of the unitholders noticed except Unit No.10A in the IT Block which was open and in possession of PAN Security Services and BLS Developer Pvt. Ltd. In paragraph 12, the aforesaid statement has been made by the IRP. Paragraph 12(e) which was relied by the Appellant only mentions that the status of the possession of the units in the commercial block could not be determined. However, Flex Boards/notices of various professionals/businesses were affixed in some of the units in the said tower/block. It was observed "Around 23 units in the said Block/Tower were having Flex boards/notice/ Address Board on them. While none of these units were open and shutters of all these units were closed during all the visits made at the Project site by the Answering Respondent." 19. From the aforesaid report, it is clear that for none of the units ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees to forego all claims such as delay interest charges penalty etc. relating to said unit. The said No Dues and No Claim Certificate cannot in any manner be read as the person giving no dues certificate is no more allotttee of the unit. Sub-Lease Agreement which has been executed by corporate debtor in favour of Kamal Bhardwaj dated 05.03.2020 although mentions Agreement to Sub-Lease with possession but execution of Sub-Lease in no manner can lead to deletion of the status of the allottees. Thus, No Dues and No Claim Certificate relied by the appellant and Sub-Lease Agreement is not a ground on which the name of those who have given No Dues and No Claim Certificate should be deleted from number of the applicants who have filed Section 7 application. Adjudicating Authority has also in the impugned order has held that the construction is incomplete and the applicant fulfils the threshold of minimum 100 allottees. Adjudicating Authority also rejected the submission raised before it that 36 unitholders who have claimed assured return are speculative allottees and their names should be deleted from the application. In paragraph 3 of the judgment, Adjudicating Authority returned followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 7 can be moved provided applicants are Financial Creditors and there must be a default of Rs.1 Crore. It was held that only change which has been brought after the amendment is that the application can be presented by the allottees in those requisite number introduced by the proviso and default can be qua any of the applicants. In paragraphs 170 and 171, following was held:- "170. It is indisputable that in order to successfully move an application under Section 7 that there must be a default which must be in a sum of Rs 1 crore. It is equally clear that the amount of Rs 1 crore need not be owed by the corporate debtor in favour of the applicant. It must be noted that the Explanation existed even prior to the provisos being inserted. It is open to a financial creditor, to move an application in the company of another financial creditor or more than one other financial creditor. In fact, a perusal of the Rules, which we have already extracted, would indicate that irrespective of the number of applicants the court fee would remain Rs 25,000. This answers the alleged vagueness about court fees where the provisos are given effect to. Thus, dehors. impugned provisos in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant that application did not fulfil the threshold of 100 allottees, thus, is factually incorrect and cannot be accepted. Applicants who had filed the application represented more than 100 units, hence, the application could not be said to be deficient in any manner. It is also relevant to notice that application was filed in October, 2021 and more than 2 ½ years have lapsed and we had passed an interim order on 21.02.2023. Paragraph 5 of the interim order, is as follows:- "5. List this Appeal on 20th March, 2023. In the meantime, IRP shall ensure that the Corporate Debtor is run as a going concern and it shall be open for the IRP to take steps for completion of project with the assistance of suspended directors/ex-management and employees. Committee of Creditors shall not be constituted in pursuance of the Order impugned." 24. In view of the foregoing discussions and our conclusion, we are of the view that the Adjudicating Authority did not commit any error in admitting Section 7 application. Taking the note of the fact that the interim order was passed by this Tribunal on 21.02.2023 and this appeal is being decided on 31.05.2024, we direct for exclusion of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
