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TMI Blog2025 (3) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... u Agarwal, IRP in person for IRP. Mr. Gajanand Kirodiwal, Advocate for Parmesh Construction Co. Ltd. ORDER ASHOK BHUSHAN, J. These three applications have been heard together and are being decided by this common judgment. 2. Before we notice the prayers in the above applications, we need to notice background facts and sequence of the events leading to filing of the above applications: i. On an application filed by the State Bank of Maharashtra under Section 7, vide order dated 12.06.2024, Corporate Insolvency Resolution Process (CIRP) against the corporate debtor commenced. ii. This appeal by suspended director of the corporate debtor has been filed challenging the order dated 12.06.2024. This appeal was heard on 03.07.2024, and after submission of counsel for the parties, we passed interim order and issue notices. Paragraph 10 of the interim order is as follows: "10. In the meantime, we direct that Committee of Creditors be not constituted. However, the ongoing Project may be continued with under the supervision of the IRP and the IRP shall be extended all cooperation by the Corporate Debtor, its officers and employees in carrying out the construction. Bank accounts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f IRP, in which Chief Executive Officer (CEO) of the YG Estates members of the Association and IRP were present. YG Estates stated that in compliance and mutual discussion and the settlement with association, it has agreed to handover the maintenance to the association on 31.01.2025. xv. After the minutes of meeting were issued on 04.01.2025, the association wrote to the CEO of YG Estates about the outstanding liabilities of electricity bills, water bills, etc. on 27.01.2025 and requested it to clear the same. xvi. On 30.01.2025, YG Estates filed an I.A.799/2025, seeking a clarification of the order dated 19.12.2024, and seeking a direction to IRP and homebuyers to take into account the investment made an outstanding amount due and payable to the YG Estates under the Facilities Management Agreement. xvii. On 31.01.2025/01.02.2025, when maintenance facility was to be handed over, dispute arose between the association and the YG Estates. YG Estates refused to handover maintenance to the Association. Association has to call Police Authorities, including the City Magistrate. In wake of law and order situation created on the spot with respect to handing over maintenance to the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding over the maintenance to the association. It is submitted that Noida Authority wrote a letter dated 19.12.2024 to the corporate debtor. The joint meeting was held on 31.12.2024, where YG Estates through its CEO was present and had agreed to handover maintenance to the association with effect from 31.01.2025. However, on the date of handover, the YG Estates refused to handover and created law and order situation on the spot. It is submitted that advance maintenance has been taken by YG Estates from several homebuyers. It is submitted that YG Estates cannot continue to carry on the maintenance after formation of the association. Both corporate debtor and YG Estates, which is nominee of the corporate debtor are bound to handover maintenance to the association after Registration Act of YG Estate is contrary to the statutory provisions. Learned counsel appearing for the association further submits that YG Estates having agreed to handover maintenance in the joint meeting dated 31.12.2024 has mala fidely filed the application on 31.12.2024 being I.A.799/2025, which is nothing but an attempt to create obstacle in the handing over of the maintenance. The claim of various amount due fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to the City Magistrate, it is contended that the said letter also highlights the outstanding dues of YG Estates payable by homebuyers. Learned Sr. counsel Mr Dutta submits that still the YG Estates have no objection to in handing over maintenance provided its all dues on the homebuyers, which are Rs.2,60,14,603/- as on 03.01.2025 are paid. It is submitted that I.A.799/2025 has been filed by the YG Estates to protect its interest. 6. Learned counsel appearing in I.A.892/2025 submits that applicant is also a homebuyer of another project. Maintenance of SPIRA is still continued by the YG Estates. It is submitted that association does not consist of all homebuyers. Homebuyers of SPIRA are not part of the association. 7. IRP appearing in person submits that YG Estates cannot resist the handover of the maintenance to the association. Association does not want services of the YG Estates. YG Estates cannot force itself on the association for purposes of maintenance. IRP further submits that in the present case by interim order of this Tribunal, the CoC has not yet been constituted, which committee be constituted so that IRP may obtain various approval from the CoC with regard to sever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssociation is association within meaning of Uttar Pradesh Apartment (Promotion of Construction Ownership and Maintenance) Act, 2010. Section 14 of the Act provides for the registration of the association. Section 14(1) provides for association of apartments owners for the administration of affairs in relation to apartment Owners and the property appertaining thereto. Sections 14(1), 14(2), 14(3), 14(4) & 14(5), which are relevant for the present case are as follows: "14. (1) There shall be an Association of Apartment Owners for the administration of the affairs in relation to the apartments and the property appertaining thereto and for the management of common areas and facilities : Provided that where any area has been demarcated for the construction of buildings, whether such area is called a block or pocket or by any other name, there shall be a single Association of Apartment Owners in such demarcated area. [(2) It shall be the joint responsibility of the promoter and the apartment owners to form an Association. The promoter shall get the Association registered when such number of apartments have been handed over to the owners which are necessary to form an association or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he common areas and facilities under this sub-section shall be completed within a period of one year from the date of issue of completion certificate or the date by which sixty percent of the apartments have been handed over to the owners, whichever is earlier, subject to the condition that the promoter shall be responsible for the sale and transfer of the balance apartments]; (7) The promoter shall maintain the common areas and facilities till the Association is formed in accordance with the conditions laid down in sub section (2) of section-14 and shall be entitled to levy proportionate maintenance charges as specified in the declaration." 14. Association has after forming of the association has written to the YG Estates as well as to the Noida Authority praying for directions to the YG Estates to handover the maintenance to the association. The Noida Authority in this reference has written a letter to the corporate debtor noticing the complaint of the association and directing the corporate debtor to do the needful. 15. We have noticed above that Mr. Dutta appearing for the YG Estates have raised the submission that application filed by the association is not maintainable in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate debtor in its favour, which Agreement was prior to commencement of the insolvency. After insolvency commencement date, the management of the corporate debtor stands suspended and it is the IRP who is entitled to carry on and manage the operation of the corporate director. When the Supernova project (East and West) are part of the assets of the corporate debtor, for which maintenance agencies is the YG Estates, it does not appeal to the reason that management of said project including the its maintenance is beyond the purview of the IRP. The corporate debtor having been put in the insolvency and IRP being on the helm of the affairs, all aspects of the assets of the corporate debtor are within the domain of the IRP. If IRP has jurisdiction to manage the operations that includes the looking after security, maintenance of the assets, we are not persuaded to accept the submission of Mr. Dutta that Maintenance Agreement executed in favour of YG Estates is beyond the insolvency process and this Tribunal has no jurisdiction to consider an issue which has been raised with regard to maintenance of projects. Section 60(5)(c) couched in a wide term covering any question arising out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solvency resolution process. This Court observed : (SCC p. 274, para 91) "91. The residuary jurisdiction of NCLT under Section 60(5)(c) of IBC provides it a wide discretion to adjudicate questions of law or fact arising from or in relation to the insolvency resolution proceedings. If the jurisdiction of NCLT were to be confined to actions prohibited by Section 14 of IBC, there would have been no requirement for the legislature to enact Section 60(5)(c) of IBC. Section 60(5)(c) would be rendered otiose if Section 14 is held to be exhaustive of the grounds of judicial intervention contemplated under IBC in matters of preserving the value of corporate debtor and its status as a "going concern". We hasten to add that our finding on the validity of the exercise of residuary power by NCLT is premised on the facts of this case. We are not laying down a general principle on the contours of the exercise of residuary power by NCLT. However, it is pertinent to mention that NCLT cannot exercise its jurisdiction over matters dehors the insolvency proceedings since such matters would fall outside the realm of IBC. Any other interpretation of Section 60(5)(c) would be in contradiction of the ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 69) "69. ... NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of corporate debtor... The nexus with the insolvency of corporate debtor must exist." ( emphasis supplied ) Thus, the residuary jurisdiction of NCLT cannot be invoked if the termination of a contract is based on grounds unrelated to the insolvency of corporate debtor." 21. It was held by the Hon'ble Supreme Court that residuary jurisdiction of NCLT cannot be invoked if the termination of the contract is based on grounds unrelated to the insolvency of the corporate debtor. The present is a case where it was corporate debtor prior to initiation of CIRP, who has appointed the maintenance agency, which, according to the appellant and the IRP are related party of the corporate debtor. Under the BBA, corporate debtor has taken responsibility to provide maintenance either by itself or by agency nominated, hence the YG Estates was providing services to the corporate debtor and was receiving maintenance charges. The judgment of the Hon'ble Supreme Court in 'Tata Consultancy Services Ltd.' (Supra) has no application in the facts of the present case whereas issue in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions for the same in its plan as a mandatory payment due. c) Implead the Applicant as party Respondent to Company Appeal (AT) (Insolvency) No. 1203 of 2024 being a necessary and proper party and allow the Applicant to file a detailed affidavit bringing forth certain additional facts and submissions; d. Pass any other further order as this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the instant case : " 23. We have already noted the submissions, the provisions of Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010, which contains the statutory obligation on the promoter and apartment owners to form an association. Section 14(2) clearly provides that it shall be the joint responsibility of the promoter to form an association and it is the promoter to get the association registered. Admittedly, the association has been registered according to Society of Registration Act 1860, on 27.05.2022 copy of the Registration Certificate has been brought on the record as Annexure A-6 to the I.A.8083/2024. The submission which has been sought to canvas by Mr. Dutta is that 33% of the apartments have to be there for formin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase no. 1203 of 2024 & I.A. No. 8083 of 2024 prayer-(i) regarding direct handing over to Supernova Apartment Owners Association (SNAOA) A Meeting of Supernova Apartment Owners Association (SNAOA) Noida, YG Estates Facility Management Pvt. Ltd (YGE), Plot No. 59, 3rd floor, Raina Perito, Sector-136, Noida, and IRP (Supertech Realtors Pvt. Ltd.) C-100 Sector-2, Noida held on Monday, 31st December 2024 at 12.00 PM in the office IRP in reference to Hon'ble NCLAT court order dated 19- 12-2024 in case no. 1203 of 2024 & I.A. No. 8083 regarding handover of maintenance to SNAOA. Following officials participated in the meeting: 1. Ms. Anju Agarwal: IRP (Supertech Realtors Pvt. Limited) 2. Mr. Kapil Jain: President SNAOA, Sector 94, Noida 3. Mr. Nitish Arora: CEO YG Estates Facility Management Pvt. Ltd. 4. Mr. Arun Chauhan: GM Operations YGE 5. Dr. Ashok Shukla: Advisor SNAOA Noida 6. Mr. Rohil Malhan: IRP Team Member 7. Ms. Gauri: IRP team Member 8. Mr. Naresh Nandwani: Ex. Secretary SNAOA Noida The Hon. Court order of NCLAT were read and discussed. SNAOA is a registered AOA under UP Apartment Act 2010 bearing registration no. GBN/01286/23-24 having its jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfied that YG Estates has no right to resist the handing over of maintenance to the association. Association having been formed and its registration being current, it has all rights and obligations as contained in UP Act, 2010. YG Estates is nothing but an agency appointed by corporate debtor, cannot resist the handover of the maintenance to the association. 30. In view of the discussions, we allow prayer 1 of I.A.8083/2024 and direct the YG Estates to handover maintenance to the association within the period of seven days from today. I.A. No.8083/2024 is disposed of accordingly. 31. I.A.799/2025 is disposed of with a liberty to the YG Estates to approach the IRP with regard to its claim against the association/unit holders. Equally the association is also entitled to place its claim regarding liabilities to be discharged by YG Estates. It is open for the IRP to settle the accounts or to take such steps as it deemed fit with regard to said issue. I.A.799/2025 is disposed of accordingly. 32. We have heard applicant in I.A.892/2025 and permitted the applicant to intervene in the matter. I.A.892/2025 is also disposed of. 33. All the three applications having been disposed of, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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