9911796707
TMI Blog2024 (11) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in this case. As per this Appeal, the Appellants are seeking, inter-alia, equitable treatment with that of other creditors in class. Specifically, they seek amendment of the Information Memorandum (IM) reflecting the units of the Appellants as cancelled and further seek that the present Appeal be allowed and the Impugned Order be set aside. Submissions of the Appellant 2. The Appellants had entered into several flat buyer's Agreements with the Corporate Debtor on various dates, under which flats were allotted to the CA (AT) (Ins) No. 1974 of 2024 3 of 20 Appellants. As per the Agreements, the Appellants had paid their respective consideration amount. The details of Agreement along with payments are herein below : Sl. No. Name of the Allottee Date of the Flat Buyer Agreement/Endorsement Consideration (Amount paid to builder till date)(INR) 1. Shilpi Sharma 13.10.2007 35,62,609.00 2. Supriya Singh 21.06.2013 22,93,145.09 3. Namrata Singh 21.06.2013 23,40,852.94 4. Prabin Kumar 03.08.2012 39,24,156 5. Sandeep Singh Gill 20.09.2007 19,56,995 6. Anjali Dabral 05.09.2007 22,91,533.00 3. As per the aforesaid flat buyer Agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sandeep Singh Gill 31.03.2022 40,55,850.00 38,05,850.00 6. Anjali Dabral 08.04.2022 44,05,519.00 45,05,369.00 7. RP issued the Form -G/EOI and five EOI were received all of which were found to be defective. Form -G was revised and re-published on 23.06.2022. After various extensions in the CIRP, on 20.10.2022 in the 5th meeting of the CoC, the matter relating to the allotment of cases similar to Appellants' cases was discussed as item no. 8 of the agenda, which is reproduced as follows: "............ Item No. 8 Discussion on the issue of Status of Recipients of Refund Amount According to the Insolvency and Bankruptcy Code, 2016. The RP informed the CoC Members that certain unit holders have sought refund either from RERA /Consumer Dispute Resolution forums. At the time of receipt of the partial refunds by these recipients, their units were cancelled without informing the unit holders about the same and allotted to someone else in some cases. As a result, the said recipients are no longer allotees of the said units. The Members of the Committee of Creditors with regard to determination of the status of recipients of refund either from RERA or Consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Resolution Plan of Clause 6 provides that the allottees whose units have been cancelled shall be allotted unit at base selling price (BSP) of INR 4200 per sq feet of super area. Additionally, it was provided that 100% of their admitted principal amount shall be adjusted against the freshly allotted unit. The Resolution Plan further provided that the allottees shall have the option to choose from a unit within 90 days from the plan effective date. Further in the event allottees do not choose a unit for allotment as per the terms mentioned, such allottees will be entitled to refund of 50% of the principal amount in terms of Clause 6. It was also clarified that allottees who have clear allotment and do not fall in any of the above categories, shall be allotted a unit at their original allotment rate as per their BBA or Allotment Letter. 12. Appellant contends that the AA has wrongly relied on the judgment of this Appellate Tribunal in "Sunil Chauhan vs. Rabindra Kumar Mintri" Company Appeal No. (Ins) 407 of 2023, to say that they could not have been treated at par with the other creditors in class. In the said judgment, the cancellation was made effective by informing the allottees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs in a class of homebuyers. 19. The details of the flat buyer Agreement, date of RERA Order, date of cancellation of the units by the Corporate Debtor and data submission of claims with the RP are as follows : S.No Name of the Allottees Date of the Flat Buyer Agreement Date of issuance of RERA Order Date of Cancellation of Units by CD Date of admission of CIRP of the CD Date of Submissio n of Claim with RP 1. Shilpi Sharma 13.10.2007 24.07.2018 15.11.2019 10.03.2022 19.04.2022 2. Supriya Singh 21.06.2013 14.03.2019 04.01.2021 29.03.2022 3. Namrata Singh 21.06.2013 12.04.2019 04.01.2021 29.03.2022 4. Prabin Kumar 03.08.2012 07.02.2019 04.01.2021 31.03.2022 5. Sandeep Singh Gill 20.09.2007 20.09.2007 20.01.2022 31.03.2022 6. Anjali Dabral 05.09.2007 11.12.2018 31.08.2021 08.04.2022 20. It is claimed by the Resolution Professional that the Applicants had come to know about the cancellation of units through the Information Memorandum only on 02.01.2023. RP contends that Appellants could have very well obtained this information even earlier from the RP. 21. The Resolution Plan submitted by Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicants in the instant case had gone into the execution of the Order of refund of money and were made part payments by the CD prior to the initiation of CRIP. Submissions of Respondent No. 2/SRA 28. One City Infrastructure Pvt Ltd is the Successful Resolution Applicant (SRA) in the instant case. It is claimed by the SRA that basis invitation of expression of interest (Form-G) on 21.06.2022, they filed their expression of interest. The allotment of the Applicants was shown as cancelled in the Information Memorandum. In fact, this was cancelled by the erstwhile management of the Corporate Debtor, much prior to the commencement of CIRP of the CD. However, when the CoC and the RP requested the SRA to address the concern qua the cancelled allotment in the Resolution Plan, the Respondent agreed to provide fair and equitable treatment to the said cancelled allotments. Accordingly, the cancelled units have already been dealt by the SRA under Clause 3.9 (11) (C) of the Resolution Plan. 29. The Resolution Plan was approved by the CoC with 100% majority in their 12th CoC meeting held on 03.08.2023. It is contended by the SRA that the Resolution Plan has been prepared and filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts (original allottee) in terms of the builder buyer agreement executed between Appellants and the Corporate Debtor. (d) direct the Respondent No. 1/Resolution Professional to modify/amend the Information Memorandum and include the units of the Appellants under the same category as that of the other unit holders. (e) Direct the Respondent No. 2 to make appropriate amendment in the Resolution Plan and treat the Appellants at par with the other allottees having clear allotment and allot units no. D03/08/01, D02/04/01, D03/08/03, D11/04/02, D09/05/02, D11/02/03 to the Applicant (original allottee) in terms of the builder buyer agreement executed between Appellants and the Corporate Debtor; and (f) Pass any other or further order(s) as this Hon'ble Tribunal may deem fit and necessary in the facts and circumstances of the given case..." 35. It is noted that the Information Memorandum was prepared by the RP basis the records of the Corporate Debtor. On receipt of all claims, along with those of the Appellants, the Resolution Professional carried out their verification as per the records of the Corporate Debtor. It was found by the RP that the units allotted to the Applicants w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Allottees/Decree Holders can choose from available units with the Corporate Debtor at a Base Selling Price (BSP) of INR 4200 per square feet of Super area. 100% of their admitted Principal Amount shall be adjusted against the freshly allotted unit. These Allottees shall have to choose from a unit within 90 days from the Plan Effective Date. In the event Allottees do not choose a unit for allotment as per the terms mentioned, such Allottees will be entitled to refund of 50% of the Principal Amount in terms of clause 6. It is clarified that Allottees who have clear allotment and do not fall in any of the above categories, shall be allotted a unit at their original allotment rate as per their BBA or allotment letter ". 38. Even though the allotment were cancelled by erstwhile management of the Corporate Debtor, the Resolution Plan had provided treatment to the said cancelled allottees. And this Resolution Plan was approved by the CoC with 100% majority in their 12th CoC meeting held on 03.08.2023. 39. Resolution Plan was prepared and filed by the Resolution Applicant in compliance with Section 30 of the Code and later it has been duly approved by the CoC in its commercial wisdom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticipating in the CoC meetings were deemed to have the knowledge of the information contained therein. Even though they had brought out their grievances before the RP, who in turn took it up in the meeting of the CoC, they cannot claim that they did not have the knowledge of the cancellation of their units till the time of the 5th CoC meeting and there was violation of principles of natural justice. 43. It is to be noted that the Appellants did not challenge their cancellation of allotment, which was pre-CIRP. It is also clear from records that they have accepted the partial payments basis the decretal amount of UPRERA. Now their primary grievance is qua the cancellation of their respective units. Since earlier they had accepted the money and while filing their claims they misrepresented and filed full claim and are now seeking the revocation of the cancellation of the units. If they were aggrieved from pre-CIRP cancellation of their units, they could have immediately approached the NCLT. However, they first participated in CIRP by participating in CoC meetings and waited till the time the Resolution Plan provided specific treatment to these categories of allottees, which was appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upport the cause of the Appellant due to different facts as noted in other parts of this judgment. 47. We find that the reliance placed by the Appellant on the judgment of Hon'ble Supreme Court in "Vishal Chelani (supra)" also doesn't support the present case as in the said case the units allotted to the homebuyers were not cancelled and in that case the Resolution Professional had not admitted the claims of the allottees under the category of creditors in a class. But in the present case the units allotted to the Appellants were already cancelled prior to the initiation of CIRP of the Corporate Debtor and the RP has already admitted the claims of the Applicants in the category of creditors in a class. 48. It is further contended by the Appellant that the AA has wrongly relied on the judgment of "K. Sashidhar vs. Indian Overseas Bank (supra)" to say that the commercial wisdom of CoC is given paramount status. We cannot find justification in the claim of the Appellants that the Information Memorandum was based on wrong facts and therefore commercial wisdom cannot be paramount as we don't find an infirmity in the Information Memorandum. Conclusion and Order 49. As per the analys ..... X X X X Extracts X X X X X X X X Extracts X X X X
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