9911796707
TMI Blog2022 (9) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... ejecting I.A. No. 572 of 2021 filed by the Appellant praying for intervention and dismissal of the Company Petition. Brief facts of the case necessary to be noticed for deciding both these Appeals are:- (i) One 'Xander Finance Pvt. Ltd.' (Assignor of the Appellant) had extended loan facility of Rs.40 Crore to Jaycee Homes Pvt. Ltd., a group entity/ sister concern of the Corporate Debtor (JVPD Properties Private Limited). The Borrower and the Corporate Debtor executed a Deed of Corporate Guarantee in favour of Xander. Term Loan Facility was also secured by way of the Mortgage Deed dated 28.07.2015 executed by the Borrower and the Corporate Debtor whereby Xander was given first charge over the property situated in Village Tirandaz, Taluka Kurla and all constructions (present and future). (ii) On account of default in payment of loan by the Jaycee, the Xander has initiated proceedings under Sections 13 and 14 of the SARFAESI Act under which possession of property was handed over to Xander on 10.04.2018. (iii) Corporate Debtor having defaulted in granting timely possession to various flat purchasers in respect of the building 'Bhagtani Serenity', civil proceedings were initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Supreme Court 2020 SCC Online SC 1233 in the matter of Beacon Trusteeship Ltd. Vs. Earthcon Infracon Pvt. Ltd. & Anr. in Civil Appeal No. 7641/2019. He submits that Hon'ble Supreme Court has clearly laid down when any such allegation is made, it need to be examined. Issue Notice. Let the reply be filed within two weeks, rejoinder, if any, may be filed within one week thereafter. List this matter on 03.03.2022. The impugned judgement dated 01.11.2021 shall remain stayed." 3. Shri Ramji Srinivasan, learned counsel for the Appellant challenging the order rejecting the I.A. submits that the Appellant having stepped in the shoes of the Financial Creditor was entitled to seek intervention and dismissal of the Company Petition which was fraudulently filed to save the Corporate Debtor from various proceedings which were initiated against it. The Respondent was an allottee of a flat in the project and could not have filed the application under Section 7 claiming to be Financial Creditor unless the provisions of the I&B Code requiring for application by allottee are complied with, hence, the application filed by Respondent No. 1 was liable to the rejected. The order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected. Application I.A. No. 572 of 2021 was filed by the Appellant where following prayers have been made:- "In view of the facts and grounds as mentioned above, the Applicant prays for the following relief(s): (i) That this Hon'ble Tribunal be pleased to allow the present Interlocutory Application and pass an order allowing the Applicant to intervene in the captioned Company Petition; (ii) That this Hon'ble Tribunal be pleased to ass an order dismissing the captioned Company Petition; (iii) That this Hon'ble Tribunal be pleased to impose necessary penalties on the Petitioner under Section 65 of the Insolvency and Bankruptcy Code, 2016; and (iv) Pass any such other further order(s) that this Hon'ble Tribunal may deem appropriate in the facts and circumstances of the present case." 7. The Appellant in application has given the details of events from 19.06.2015 to March, 2020 and has given details of the Deed of Mortgage entered by Corporate Debtor to secure the loan granted to the sister concern. Details of SARFAESI proceedings initiated against borrower as well as complaint filed under Maharashtra RERA Act was referred to. Details of the order passed by MRERA dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such, the captioned Petition has been filed fraudulently and maliciously for purposes other than the resolution of the Respondent and this Hon'ble Tribunal ought to impose necessary penalty against the Petitioner as per Section 65 of the Code." 8. Now we come to the impugned order passed by the Adjudicating Authority on 08.06.2021. The entire order runs into three paras. In para 2, the Adjudicating Authority noticed the prayers made in the application I.A. 572 of 2021 and another application I.A. No. 910 of 2020 filed by 'The Bhagtani Flat Buyers Association'. In para 2 itself the Adjudicating Authority has held that both the IAs are dismissed for want of locus. Para 2 is as follows:- "IA 910 of 2020 is filed by The Bhagtani Serenity Flat Buyer's Association seeking an order allowing the Applicant to implead/intervene in the Company Petition and IA 572 of 2021 is filed by CFM Asset Reconstruction Private Limited seeking the identical prayer in IA 910 of 2020. After hearing all the parties, the Adjudicating Authority is of the view that both the Applicants do not have locus to intervene in the CP No. 395 of 2020 therefore, Both the IAs are dismissed for want of locus standi." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation by the Appellant was competent application filed under Section 60(5) of the Code r/w Rule 11 of NCLT Rules, 2016 and under Section 65 of the Code and the Adjudicating Authority was obliged to look into the allegations to find out if there is any ground to grant any of the prayers made in the application. The finding of the Adjudicating Authority that the Appellant has no locus cannot be sustained. When the Appellant claims to be the Financial Creditor who is assignee of the Financial Creditor and the application records sequence of events and various proceedings prior to the application under Section 7, the allegations ought to have been looked into and could not have been brushed aside by observing that the applicant has no locus. 12. We, thus, are of the view that the order dated 08.06.2021 is unsustainable and the Adjudicating Authority has committed error in rejecting the application I.A. No. 572 of 2021. The order dated 08.06.2021 is set aside. 13. Now, we come to the order dated 01.11.2021 by which the Adjudicating Authority admitted the Section 7 application. The Adjudicating Authority in the impugned order has noticed the submission made by the Respondent No.1 - Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
