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TMI Blog2023 (1) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... f default admitted by the Adjudicating Authority, but we are of the view that by mere depositing the said amount, the CIRP cannot be set aside. We are quite conscious that in the real estate Projects, it is the Homebuyers, who are the major sufferer. Most of the Homebuyers belong to middle income group, who for funding their homes also takes loan from financial institutions and suffer due to non-handover of possession by the builders - present is a case where order initiating CIRP need no interference. Consequently, the CoC has to be constituted to find out the ways and means to complete the Project, so that interest of the Homebuyers be firstly fulfilled. The CIRP of the Corporate Debtor needs to be proceeded with. The CoC may be constituted immediately and CoC may take a call regarding finding out ways and means to complete the Projects. With the approval of CoC, the IRP may take steps to obtain interim finances to complete the Project, if any. It is also open for the CoC to take a decision to invite Resolution Plan in staggered manner, confined to Project wise/ building wise, as may be feasible and convenient, so that unfinished Project may be completed and Homebuyers be hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gage Deed dated 18.09.2019 was also executed by the Corporate Debtor. Financial Creditor disbursed an amount of Rs.84,23,75,000/-. After six months moratorium, the loan was required to be paid as per the terms and conditions of Loan Agreement. The first default in repayment of the loan occurred on 05.02.2020 and the second on 05.03.2020 and thereafter on every month. (ii) The Financial Creditor filed an Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the Code ) claiming an amount of Rs.7,87,50,000/- as on 07.09.2020. The Adjudicating Authority issued notice on Section 7 Application. The Corporate Debtor filed a reply opposing the admission of Section 7 Application. The Adjudicating Authority after hearing the parties, by order dated 16.06.2022 admitted the Application. The Adjudicating Authority took a view that for defaults, which have occurred subsequent to 05.03.2020 are hit by Section 10A, hence, the only amount of default for which the Application is maintainable is default of Rs.1,12,73,387/-. The Adjudicating Authority after finding default which was more than threshold of Rs.1 crore, admitted the Application. 3. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Flat Buyers Association vs. Umang Realtech Pvt. Ltd. Company Appeal (AT) (Insolvency) No.926 of 2019 submit that the Corporate Insolvency Resolution Process ( CIRP ) be confined to only to the Project where Financial Creditor is concerned. The present is a case where reverse insolvency resolution process as recognised by this Tribunal, should be resorted and reverse CIRP be adopted, so that all Project be not included. The Appellants are ready and willing to disburse the balance consideration, which will then inevitably be used to repay the claims of the various stakeholders including the Financial Creditor. Shri Sinha submits that in event the CIRP is proceeded, the Homebuyers will be the great sufferer because they will not be able to get their houses for which they have handed over their life savings. 6. The learned Counsel appearing for Homebuyers, who have filed Intervention Applications in these two Appeals submit that Homebuyers anxiety is only to get the possession after due completion of the unfinished Projects. It is submitted that in event the Corporate Debtor completes the Projects, they have no objection in CIRP not proceeding, but suspended Director has not come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative. The IRP has filed an Interlocutory Application for the appointment of Authorised Representative with Hon ble NCLT, Mumbai bench . 7. The Interim Resolution Professional states and submits that pursuant to the Public Announcement made by the Interim Resolution Professional, and subsequent to the 1st progress report, one claim is received from operational creditor (towards Government dues) for an amount aggregating to Rs.3,38,69,531 and the said claim is under verification. Sales Tax Department has attached bank accounts and immovable properties of CD, for which detailed reply was sent by IRP. 9. In the Status Report, the IRP has also submitted Project Status as registered with MAHA RERA. According to the Status Report, there are Projects, which are divided in three Zones, i.e., Kalyan Zone-1, Kalyan Zone-2 and Kalyan Zone-3. In paragraph 9 of the Report, following has been stated: 9. The Interim Resolution Professional states and submits that at Vadavli, village, Taluka-Kalyan, Dist Thane, Pin Code- 421301, the Corporate Debtor has registered 30 buildings having different names with MAHA RERA under the project name Lifestyle City- Kalyan . The Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht on the record is a letter, which contains 37 preconditions, which are required to be fulfilled before any investment is made by Swamih Investment Fund. The Appellant in his written submission has also referred to a letter dated 08.12.2022 addressed by Swamih Investment Fund informing that letter dated 03.06.2021 is valid and subsisting. 12. Now we come to the question of debt and default. The Adjudicating Authority in the impugned order in paragraph 8 of the judgment has held that default on or after 05.04.2020 was for an amount of Rs.1,12,73,387. The learned Counsel for the Financial Creditor submitted that even after the period covered by Section 10A came to an end, no payments are yet been made to the Financial Creditor by the Corporate Debtor. It is submitted by Financial Creditor that huge dues have been accumulated against the Corporate Debtor as on date. In the 3rd Status Report, the IRP has stated that in pursuance of the Public Announcement claims of Financial Creditors have been received of Rs.1930 crores in addition to claims of Homebuyers of Rs.29,43,69,469/-. There is no material brought on record except to the letter of the Swamih Investment Fund dated 03.06.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in other places where separate plan(s) are approved by different authorities, land and its owner may be different and mainly the allottees (financial creditors), financial institutions (financial creditors, operational creditors are different for such separate project. Therefore, all the asset of the company (Corporate Debtor) are not to be maximized. The asset of the company (Corporate Debtor real estate) of that particular project is to be maximized for balancing the creditors such as allottees, financial institutions and operational creditors of that particular project. Corporate Insolvency Resolution Process should be project basis, as per approved plan by the Competent Authority. Any other allottees (financial creditors) or financial institutions/ banks (other financial creditors) or operational creditors of other project cannot file a claim before the Interim Resolution Professional of other project and such claim cannot be entertained. So, we hold that Corporate Insolvency Resolution Process against a real estate company (Corporate Debtor) is limited to a project as per approved plan by the Competent Authority and not other projects which are separate at other places ..... X X X X Extracts X X X X X X X X Extracts X X X X
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