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TMI Blog2024 (11) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... the Applicant were rejected and IA No.1452 of 2024 and IA No.3816 of 2022 were disposed of. 2. Brief facts of the case necessary to be noticed for deciding the Appeal are: (i) The Corporate Debtor - M/s Three C Properties Pvt. Ltd. was allotted a Commercial Plot No.H-10, Sector 98, Noida on 26.04.2011 measuring 24,000 sq. mtrs. The Noida sanctioned a revised layout plan for the land in question comprising five towers, two commercial and three residential, sharing common facilities, amenities, roads etc. The conditional permission letter dated 21.01.2017 obtained by the Corporate Debtor for bifurcation of two sub-plots from the Commercial Plot No.H-10. Permission was obtained on 21.01.2017 for bifurcation of the Commercial Plot No.H-10. A Tripartite Sub-lease Deed dated 27.06.2017 was also executed. (ii) The commercial construction of the project was given to two subsidiaries of the Corporate Debtor ("CD") and registration was obtained by the Promoters in Uttar Pradesh Real Estate Regulatory Authority ("UP RERA") as residential project namely - Lotus Isle (Residential) on 11.08.2017. Builder Buyers Agreements were executed by the Corporate Debtor, allotting different units in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have filed Section 7 application were only 29 unit holders. The Adjudicating Authority erred in holding the threshold to be met only computing the number of units in the residential towers. It is submitted that the project being one, allotment of the commercial units was also required to be added for finding out the threshold. It is submitted that project being one, bifurcating the commercial units, the Applicants did not fulfill 10% threshold as prescribed by the IBC. Hence, the application filed under Section 7, did not deserve admission. It is submitted that order of admission being contrary to the provisions of the IBC, deserve to be set aside. Learned Counsel for the Appellant further submits that this contention of the Appellant that Applicants do not fulfill the threshold of 10% was specifically raised before the Adjudicating Authority, which has also been noticed, but has been erroneously rejected. The learned Counsel for the Appellant further submits that the Builder Buyers Agreement mentions the project as Lotus Isle. The Promoters, however, got registered the project in UP RERA as Lotus Isle (Residential). 5. Shri Abhijeet Sinha, learned Senior Counsel appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the Lotus Isle (Residential), which is a real estate project in question. It is not the case of the Appellant that Appellant is even allottee of any commercial unit, which have been constructed on the commercial plot allotted to the CD. The Appellant claims to be a stakeholder in another sister concern GGPPL. By the impugned order, the Adjudicating Authority admitted Section 7 application filed on behalf of allottess, Financial Creditor in a class, finding debt and default. By admission of Section 7 Application, the Corporate Debtor or allottees of project may have any grievance, a person, who is neither allottee of the project, nor has any stake in real estate project, which is subject matter of the insolvency, cannot be allowed to challenge the order admitting Section 7 application. Section 7 application has been admitted on account of debt and default by the Corporate Debtor, who committed default in delivering the possession of the unit to the allottees. We, thus, found substance in the submission of learned Counsel for the Respondent that the Appellant has no locus to challenge the order admitting Section 7 application. 9. Learned Counsel for the parties having addressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its are 255, out of which 29 unit holders were Applicants in Section 7 application. The argument, which was advanced by the Appellant regarding non-fulfillment of threshold has been noticed by the Adjudicating Authority and in paragraph 12, said issue has been noticed in following words: "12. The issue as to whether Applicants in the present application constitute 10% of the homebuyers is concerned, it can be seen from Annexure A-3 (Page 207) of the petition, that the total residential unit qua the project are 255, thus the allottees of 29 units would constitute 10% of total number of allottees." 13. The Adjudicating Authority has considered the submission and has noticed the judgment of the Hon'ble Supreme Court in Manish Kumar vs. Union of India - (2021) 5 SCC 1 in paragraph 17, which is as follows: "17. As has been noted hereinabove, in terms of the definition of the Real Estate Project given in clause (zn) of Section 2 of Real Estate (Regulation and Development) Act, 2016, Real Estate Project includes even the conversion of an existing building or a part thereof into apartments. Thus, the 10% allottees qua the Real Estate Project can maintain the present petition. The iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make a search for allottees of different projects, as would be the case, if the entirety of the allottees, under different projects, were to be reckoned, the task would have been much more cumbersome. The requirement of the allottees, being drawn from the same project, stands to reason and also does not suffer from any constitutional blemish, as pointed out." 14. The Adjudicating Authority has returned a finding in paragraph 17 that 10% allottee of the real estate can maintain a petition. It is not a dispute between the parties that total units for the residential project are 255 and the application was filed by 29 unit holders. We, thus, are satisfied that application filed by Financial Creditors in a class, fulfill the threshold as provided under Section 7, second proviso and the submission advanced by the learned Counsel for the Appellant that application did not fulfill the threshold limit, cannot be accepted. 15. No other submissions have been made by the learned Counsel for the Appellant, we in view of the above observations and conclusions, do not find any ground to interfere with the impugned order. The Appeal is dismissed. Pending IAs, if any, are also disposed of. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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