2020 (8) TMI 836 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Differentiation of class of Financial Creditors - Allotment of commercial units - claims of the Applicants were admitted by the Respondent on the basis of the Addendum to MOU - Respondent himself has been of the opinion that the MOU and Addendum to MOU having been executed just before the initiation of CIRP were of suspicious nature - whether the claim of the Applicants shall be admitted as independent Financial Creditor or a Financial Creditor in a class ? - HELD THAT - That from the contents of the Clause 3 of the MOU dated 10.06.2019 it is amply clear that the Allotment of the earlier allotted units shall stand cancelled with the issuance of Letter of Allotment individually for each Service Apartment in the Ninex Mall - However in actual neither any allotment letter for Service Apartments were issued nor the earlier letters of allotment of the commercial units issued in 2015-16 were cancelled by the Corporate Debtor. The same has been confirmed by the Respondent in its Affidavit dated 21.08.2020. That the plea taken by the Respondent during the course of arguments with respect to double allotment too does not merit consideration since the Respondent himself has submitted on affidavit dated 21.08.2020 that the Applicants were either the first allottees (in respect of seven units) or holding clear allotment (in respect of four units). None of these letters of allotment of the commercial units have been cancelled. Therefore this Bench of the view that the earlier allotment letters issued in respect of 1 1 units by the Corporate Debtor in favour of applicants in the year 2015 and 2016 stand valid and cannot be treated as null and void. This Bench is of the opinion that the claims of the Applicants being the allottees of commercial units will fall under the Category of Financial Creditor in a class - application allowed.

Summary

Issues Involved:

1. Adjudication of the claim of the Applicants as 'Financial Creditor in a class'.
2. Verification of the double allotment and mortgage claims.
3. Validity of the MoU and Addendum to MoU executed before the initiation of CIRP.
4. Classification of Applicants' claims based on allotment status.

Detailed Analysis:

1. Adjudication of the claim of the Applicants as 'Financial Creditor in a class':

The Applicants sought to be recognized as 'Financial Creditors in a class' and requested the Tribunal to direct the Resolution Professional to adjudicate their claims afresh. The Tribunal noted that the claims of the Applicants were admitted by the Resolution Professional based on the 'Addendum to MOU' dated 12.06.2019. However, the Resolution Professional himself expressed doubts regarding the suspicious nature of the MoU and Addendum, as they were executed just before the initiation of CIRP. The Tribunal observed that the Resolution Professional had admitted the claims but treated the Applicants as independent Financial Creditors without providing a clear justification.

2. Verification of the double allotment and mortgage claims:

The Respondent argued that some of the units claimed by the Applicants were subject to double allotment or mortgage. The Tribunal sought clarifications on the specific units involved in double allotment or mortgage. The Respondent's affidavit revealed that the Applicants were the first allottees for seven units and held clear allotment for four units. The Tribunal concluded that the plea of double allotment did not merit consideration since the Applicants were either the first allottees or held clear allotment, and none of the allotment letters had been cancelled.

3. Validity of the MoU and Addendum to MoU executed before the initiation of CIRP:

The Tribunal examined the MoU dated 10.06.2019 and the Addendum dated 12.06.2019. It noted that the MoU stipulated the cancellation of earlier allotments upon issuance of new allotment letters for Service Apartments. However, no such allotment letters for Service Apartments were issued, nor were the earlier allotment letters for commercial units cancelled. The Tribunal found that the Respondent's argument regarding the suspicious nature of the MoU and Addendum was inconsistent, as the Respondent had admitted the claims based on these documents while simultaneously questioning their validity.

4. Classification of Applicants' claims based on allotment status:

The Tribunal determined that the Applicants' claims should be classified based on their status as allottees of commercial units. Since the letters of allotment for commercial units issued in 2015 and 2016 were still valid and had not been cancelled, the Applicants fell under the definition of 'allottee' as per Section 2(d) of the Real Estate (Regulation & Development) Act 2016. Consequently, the Tribunal directed the Resolution Professional to categorize the claims of the Applicants (except the Applicant at Sl. No. 8) as 'Financial Creditors in a class'. The Applicant at Sl. No. 8, who had no unit allotted, was to be treated as a 'Financial Creditor' only.

Conclusion:

The Tribunal allowed the application, directing the Resolution Professional to categorize the claims of the Applicants (except the one with no unit allotted) as 'Financial Creditors in a class'. The Tribunal emphasized that the earlier allotment letters for commercial units were valid and the Applicants met the definition of 'allottee' under the Real Estate (Regulation & Development) Act 2016. The application was allowed accordingly.