9911796707
TMI Blog2022 (11) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... ilt up area), 1606 (1370 sq. foot super built up area), 1702 (1445 sq. foot super built up area), 1802 (1445 sq. foot super built up area) and 1802 (1445 sq. foot super built up area), all located in Block D with allotment letters dated 23.11.2019 in all the cases in lieu of the amount pending for repayment by him. The two points are very clear viz. that the entire project with immovable and movable assets, including structures built thereon with entire current, future receivables and current assets from the project were all mortgaged to Canara Bank and such flats would not have been allotted to any person without an NOC from Canara Bank. Also, the Appellant, who claims to be an allottee and desires the benefit of filing his claim as homebuyer in Form-CA, is not an original allottee, but has received the seven flats as in lieu of its due amount of Rs. 3.03 crores from the Corporate Debtor vide a settlement MoU dated 23.11.2019. In the light of very grave doubt that exists regarding the allotment of seven flats to the Appellant, which in the absence of any NOC from Canara Bank could not have been made, we do not think that the RP committed any error in asking the Appellant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated against the Corporate Debtor and the Appellant filed its claim in Form-CA, claiming to be allottee of seven flats in the Corporate Debtor s project, which was not accepted by Resolution Professional (in short RP) and the Appellant was advised to file his claim for the seven flats in Form C, as the Appellant did not stand on the same footing as home buyers. 4. The Appellant has stated that aggrieved by the email dated 6.12.2021 from the RP in respect of his claim about the seven flats, he filed application IA No. 6052 of 2021 before the Adjudicating Authority, which was disposed of by the order dated 8.6.2022, and whereby the Appellant s application for considering it as homebuyer was not accepted. 5. We heard the arguments of the Learned Counsels of both the parties and perused the record. 6. The Learned Counsel for Appellant has submitted that the Corporate Debtor entered into an MoU dated 14.9.2015 whereby the Corporate Debtor pledged security for the loan granted by the Appellant in the form of four flats. He has submitted that the Appellant filed section 7 application as financial creditor against the Corporate Debtor after the matter between them was settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial creditor in the CIRP of the Corporate Debtor Bulland Buildtech had advanced a loan to the Corporate Debtor vide sanction letter dated 1.7.2016 whereby an amount of Rs.37.80 crores was given as loan to Corporate Debtor alongwith security, which included exclusive charge on all movable and immovable assets, including structures built thereon together with current, future receivables and current assets from the project were mortgaged to the bank. Thus, Canara Bank has security over the entire project called Bulland Elevates . He has further stated that the sanction letter records that for each flat/group of flats to be allotted by the Corporate Debtor NOC will be given by Canara Bank, which was not done in the present case and therefore the allotment of seven flats done vide MOU dated 23.11.2019 is null and void. He has also submitted that the loan sanction letter of Canara Bank also stipulates that the Corporate Debtor will not sell or dispose of or create security or encumbrances on the assets charge to the bank in favor of any other bank /financial institution /company /firm /individual, or any other concern, and thus, in the absence of any NOC from Canara Bank, which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made and the judgment goes on to say that a speculative investor cannot claim the same status and rights as homebuyers/allottees. 13. The basic issue in this appeal relates to whether the claim filed by the Appellant in Form-CA should be accepted in the CIRP of the Corporate Debtor. 14. We note, as admitted by the Appellant that he advanced a loan of Rs. two crores to the Corporate Debtor, which was disbursed through four demand drafts of Rs. 50 lakhs each between 6.11.2018 and 24.10.2019. When this unsecured loan was defaulted in repayment by the Corporate Debtor, the Appellant filed a section 7 application CP (IB) No. 73/ND/2019, which was disposed of as another section 7 application was admitted on 29.11.2019 against the Corporate Debtor. We also note that the second MoU, which is claimed to have been executed between the Appellant and the Corporate Debtor on 23.11.2019 is an unregistered document by which the Appellant was ostensibly allotted seven flats bearing nos. 703 (1370 sq. foot super built up area), 1002 (1445 sq. foot super built up area), 1503 (1370 sq. foot super built up area), 1606 (1370 sq. foot super built up area), 1702 (1445 sq. foot super built up a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, but has received the seven flats as in lieu of its due amount of Rs. 3.03 crores from the Corporate Debtor vide a settlement MoU dated 23.11.2019. 17. It is also not clear as to how an original mortgage of four flats in same project against a loan of Rs. 2 crores, gets converted into an allotment of seven flats in the same project Bulland Elevates , when the Corporate Debtor had evidently paid huge amount as interest to the Appellant. Moreover, this purported transaction between the Appellant and Corporate Debtor vide MoU dated 23.11.2019, also infringes sections 43 and 66 of the IBC, a point that has been noted in the Impugned Order. 18. In the light of very grave doubt that exists regarding the allotment of seven flats to the Appellant, which in the absence of any NOC from Canara Bank could not have been made, we do not think that the RP committed any error in asking the Appellant to file its claim in Form-C instead of Form-CA, as an unsecured creditor, a decision which was affirmed by the Adjudicating Authority vide the Impugned Order dated 8.6.2022. Thus, we find no error in the Impugned Order and affirm the same. The appeal being devoid of any merit fails. It is acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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