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TMI Blog2023 (1) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... pers Pvt. Ltd. (Corporate Debtor), engaged in the business of real estate, in June, 2008, seeking a loan of Rs. 19.80 Crores for construction of a housing project comprising of 112 duplex houses/row houses. The loan was sanctioned by HUDCO on 24.04.2009. The loan assistance of Rs. 19.80 Crores was offered at a floating rate of interest of 15.50% per annum and the amount was payable within 36 months in 12 quarterly installments of Rs. 165 lakhs each. Pursuant thereto, a loan agreement was executed on 30.06.2009 and on the same day, an escrow agreement was executed amongst HUDCO, Corporate Debtor and Union Bank of India (UBI). As per which, UBI was appointed as escrow agent to accept all receivables and payments generated from project phase-1. The escrow account was bearing no. 458101010036328. 3. The Corporate Debtor once again approached HUDCO in June/July 2010 for a loan of Rs. 12.50 Crores for construction of residential complex 'Ramnath City, Phase II'. The loan was sanctioned on 08.07.2010 and a loan agreement was executed on 31.08.2010 between HUDCO and the Corporate Debtor. 4. Pursuant to the agreement dated 31.08.2010, an escrow agreement was executed amongst HUDCO, Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as on 13.06.2014 and symbolic possession of the secured assets of the Corporate Debtor was taken on 11.09.2014. 9. The Corporate Debtor filed Securitization Application (S.A. No. 79 of 2014) before the DRT, Nagpur. The DRT Nagpur vide order dated 08.03.2016 held that the loan account of the Corporate Debtor was rightly classified as NPA by the Appellant and the notice issued under Section 13(2) of SARFAESI Act was in accordance with law. But DRT set aside the notice of possession dated 03.09.2014 and dated 11.09.2014 issued under Section 13(4) of SARFAESI Act and directed HUDCO to restore the symbolic possession of the property to the Corporate Debtor within 30 days from the date of the said order. 10. The said order dated 08.03.2016, passed by the DRT was challenged before the DRAT, Mumbai which is stated to be pending. 11. The Appellant filed an application OA No. 139 of 2014 under Section 19 of the RDDB Act, 1993 before the DRT, Mumbai seeking recovery of the amount of Rs. 31,74,32,071/- due as on 27.08.2014 under the loan agreement for phase I and II of the project. 12. The DRT vide order dated 21.09.2015, directed the Corporate Debtor to deposit the amount of Rs. 24,44,87 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional (IRP). 15. The IRP invited claims from the creditors through publication of Form- F on 25.01.2020. HUDCO in terms of Regulation 8 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (in short 'Regulations') submitted its claim to the IRP on 05.02.2020 of a sum of Rs. 83,88,37,657/- in Form C. The said claim was admitted by the IRP. 16. The CoC was constituted by the IRP and informed the Adjudicating Authority. The CoC constituted by the IRP comprised of allottees of the project, including the allottees in whose favour registered sale deed has not been executed by the Corporate Debtor, as financial creditors in a class. It is alleged that HUDCO is also a member of CoC with voting share of 83.97%. 17. Ganga Ram Agarwal was confirmed as Resolution Professional (RP) in the 1st meeting of the CoC held on 20.02.2020. It is alleged that RP proceeded to remove 169 residential units of the project of the Corporate Debtor from the inventory of assets of the Corporate Debtor though the Appellant has a charge over the same. It is further alleged that in the 4th meeting of CoC held on 25.06.2020, HUDCO again requested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned authorities for execution of the same within 30 days from the date of uploading of this order on portal of NCLT being Adjudicating Authority. III. The applicant/homebuyers shall pay the applicable stamp duty and other charges in terms of their agreement with the Corporate Debtor to facilitate the process and enable the RP for execution of sale deed. IV. RP shall also take necessary steps to obtain occupancy certificate for the project as required under relevant law/rules. V. The registry is directed to upload the copy of this order immediately on pronouncement. VI. In the result, I.A. No. 178 of 2020 and I.A No. 302 of 2020 stand allowed in terms of directions given as above. I.A. No. 179/2020 stands dismissed as infructuous in view of our order in I.A. No. 178 of 2020. VII. Certified true copy of this order, if applied for, be issued upon compliance with all requisite formalities." 19. Aggrieved against the aforesaid order, the present appeal has been filed. 20. Counsel for the Appellant has submitted that the Appellant is aggrieved against the impugned order in respect of directions issued to it to grant NOC for execution of sale deed in favour of all the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een received by the Appellant. 22. Counsel for the Appellant has further argued that the Adjudicating Authority has committed an error in passing the impugned order as it has no jurisdiction to issue directions. It is further submitted that even Section 14 of the Code prohibits the disposal of assets of the Corporate Debtor and there is no provision which permits the RP to sell the mortgaged assets of the Corporate Debtor. 23. It is also submitted that the impugned order is contrary to the priority specified under Section 30(2) r/w Section 53(1) of the Code because a secured creditor is placed above the unsecured creditors and in case of resolution plan, the priority is to be given to the secured creditor whereas the home buyers are not the secured creditors. 24. It is also argued that the Appellant could not be directed to comply with the directions issued by the Adjudicating Authority without its fault. It is submitted that basis for not granting NOC is that it has not received the entire consideration amount. 25. On the other hand, Counsel for the home buyers has submitted that the loan was obtained by the Corporate Debtor from the Appellant and pursuant thereto an escrow ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed on 30.06.2009 and 31.08.2010 and also executed similar escrow agreements on the same date when the loan agreement was executed. UBI was the trustee of the escrow account and it was provided in the escrow agreement that all the receipts accruing to the borrower from the project shall be deposited by the borrower in the escrow account from where the payment shall be made to the lender (Appellant). It is also a fact that the Appellant had issued NOC in the past in respect of 17 units of the similarly situated home buyers i.e. Villa/Row House Nos. 5,8,9,12,14,16 of Bella Casa and Villa/Row House Nos. 2,6,7,8,10,11,12,14,18,32&99 of Bella Capanna by issuing NOC for execution of sale deed after receipt of proportionate payment due regarding those units. Meaning thereby, the Appellant can still issue the NOC for the execution of sale deed with the receipt of entire payment dehors Section 14 of the Code. The whole emphasis of the Appellant is on the issue that since the loan agreements categorically provides that the Appellant shall have a charge over the property together with building, superstructure, construction etc. both present and future owned and possessed by the borrower ..... X X X X Extracts X X X X X X X X Extracts X X X X
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