2024 (7) TMI 194 - AT - Insolvency and Bankruptcy

Maintainability of section 7 application - applicability of threshold introduced by Amendment Act 1 of 2020 of the IBC - requirement of application to be filed jointly by not less than 100 allottees under the same real estate project or not less than 10% of the total number of allottees, whichever is less - HELD THAT - The Adjudicating Authority has correctly held that even a commercial space or unit allotted to Assured Returns Class of Creditors is also covered in the ambit of an allottee . After taking notice of the judgement of this Tribunal in Nikhil Mehta 2017 (8) TMI 1017 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI , the Adjudicating Authority has also correctly noted that this judgement has nowhere observed that assured returns class of creditors in a particular project do not come under the definition of allottees . The Adjudicating Authority has further held that in the facts of the present case, as per affidavit of the Corporate Debtor, the total number of allotted units in the Floreal Tower is 504 and 366 allottees therein fall under the Assured Returns Class of Creditors. Since the present Appellants happen to be part of the Assured Returns Class of Creditors, they continue to belong to the substratum of allottees and therefore continue to be governed by the threshold limit prescribed under second proviso to Section 7(1) of IBC. Since the present application was filed before the IBC Amendment Act 1 of 2020 had come into effect, consequently upon the amendment, as financial creditors who are allottees under a real estate project, the Appellants were required to meet the threshold criteria of not being less than 100 such creditors in the same class or not being less than 10% of the total number of creditors in the same class, whichever is less, to qualify to file Section 7 application against the Corporate Debtor. This parameter has clearly not been complied with thereby making the Section 7 application non-maintainable. The Appellants cannot be said to go out of the definition of allottees merely because they are part of MAR plan or that they should be treated in a different category wherein they are not required to comply with second proviso to Section 7(1). The Adjudicating Authority has correctly held that the Appellants continue to hold the status of allottees and having filed Section 7 Application, they are mandatorily required to comply with second proviso to Section 7(1) of IBC. There is no merit in the Appeal - The Appeal is dismissed.

Summary

Issues Involved:
1. Maintainability of Section 7 application under IBC post-amendment.
2. Distinction between financial creditors as allottees and those under assured return schemes.
3. Compliance with the threshold requirement under amended Section 7 of IBC.

Issue-Wise Detailed Analysis:

1. Maintainability of Section 7 Application under IBC Post-Amendment:

The primary issue was whether the Section 7 application filed by the Appellants is maintainable in light of the threshold introduced by the Amendment Act 1 of 2020 to the IBC. The amendment requires that a Section 7 application by financial creditors who are allottees under a real estate project must be filed jointly by not less than 100 allottees or 10% of the total number of allottees, whichever is less. The Appellants contended that their application was not impacted by this amendment as they approached the Adjudicating Authority not as allottees but based on an independent agreement (MOU) for Monthly Assured Return (MAR). However, the Tribunal found that the Appellants, being part of the assured returns class of creditors, fall under the definition of 'allottees' and thus must comply with the threshold requirement.

2. Distinction Between Financial Creditors as Allottees and Those Under Assured Return Schemes:

The Appellants argued that their claim arises from the MAR Plan, a separate agreement from the allotment, and thus they should not be considered allottees under the IBC. They relied on the judgment in *Nikhil Mehta and Sons Vs. AMR Infrastructure Ltd*, which held that recipients under assured return investment schemes are financial creditors. The Tribunal, however, held that even commercial space/unit allottees under assured return schemes are covered under the definition of 'allottee' as per RERA and IBC. The Tribunal noted that the Adjudicating Authority correctly observed that the assured returns class of creditors does not fall outside the ambit of 'allottees.'

3. Compliance with the Threshold Requirement Under Amended Section 7 of IBC:

The Tribunal emphasized that the Appellants, being part of the assured returns class of creditors in a real estate project, must meet the threshold criteria of not less than 100 such creditors or 10% of the total number of creditors to file a Section 7 application. The Appellants failed to comply with this requirement. The Tribunal also referenced the judgment in *Rahul Gyanchandani Vs Parsvnath Landmark Developers Pvt Ltd*, which upheld that homebuyers are 'allottees' and must comply with the second proviso to Section 7(1) of IBC. The Tribunal concluded that the Appellants' artificial distinction between financial creditors under MAR Plan and allottees is not tenable, and thus, their Section 7 application is non-maintainable.

Conclusion:
The Tribunal dismissed the appeal, holding that the Appellants, being allottees under the MAR Plan, must comply with the amended Section 7(1) of IBC. The Tribunal found no merit in the Appellants' arguments and upheld the Adjudicating Authority's decision. No order as to costs was made.