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TMI Blog2023 (11) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... essary to be noticed for deciding this Appeal are:- 2.1. Appellants are homebuyers of the project 'The Grove Towers'. Appellant No.1 and the Corporate Debtor entered into an Agreement for Sale dated 18.08.2018 for Unit No.1907 admeasuring 2050 sq. ft. on the 19th Floor for a total consideration of Rs.4,69,64,883/-. The Adjudicating Authority by order dated 29.06.2020 admitted Section 7 Application against the Corporate Debtor- 'Ornate Spaces Private Limited' which was financed by 'IDBI Trusteeship Services Limited', the Financial Creditor. Appellant submitted its claim vide Form CA on 11.07.2020. IRP invited Expression of Interest for Corporate Debtor. The Resolution Plan submitted by 'Ashdan Properties Private Limited' (Respondent No.2) was approved by 80.86% voting share. All the homebuyers including the Appellant having voting share of 18.34% voted against the Resolution Plan. On 16.12.2021, Appellant filed an IA No.2953 of 2021 before the Adjudicating Authority seeking rejection of the Resolution Plan submitted by Respondent No.3. The Adjudicating Authority heard the Appellant as well as Resolution Professional and vide order impugned partly allowed IA No.2953 of 2021. Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed is not correct. It is submitted that the Resolution Plan only precludes filing complaints under RERA with regard to past act i.e. the claim and breaches up to the date of approval of the Resolution Plan. The Resolution Plan deals with the claims prior to effective date as per the Resolution Plan and the plan does not deal with future claim or default. It is submitted that the Resolution Professional has already given a clarification to the above effect before the Adjudicating Authority. It is submitted that the Adjudicating Authority itself in the impugned order has observed that the remedy under RERA in relation to past default of the Corporate Debtor has been forfeited. It is further submitted that during pendency of this Appeal Adjudicating Authority by an order dated 06.10.2023 has already approved the Resolution Plan allowing the IA No.2772 of 2023 filed by the Resolution Professional. The order dated 06.10.2023 has also been brought on record along with an application and in view of the order approving the Resolution Plan which has been passed after rejecting objection raised to the Resolution Plan, it is submitted that nothing survives in the appeal to be decided. The ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall not raise any objection or reach out to RERA objecting to any future development of the Properties or any part thereof." "9.1.2. That the Hon'ble NCLT be pleased to give or issue necessary directions, instructions to the Home Buyers to accept the new delivery dates of the Projects and not to make any claims towards interest or compensation for past acts and not to raise any objection or approach RERA objecting to any future development of the Properties or any part thereof." "10.3. The RERA authority shall dispose off and extinguish all claims, cases and order against the Corporate Debtor prior to the Approval date. The RERA authority shall further not admit any new claims or cases pertaining to the project under the control and management of Resolution Applicant/ Corporate Debtor pertaining to claims prior to the Effective Date as per this Resolution Plan." 10. When we look into the aforesaid clauses, in clauses 8.6 and 9.1.2 the words 'for past acts' has been specifically mentioned. Thus, the plan clearly prohibits any claim under the RERA only with regard to past acts. Coming to clause 10.3, Clause 10.3 reads the RERA authority shall dispose off and extinguish all c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und viable and feasible in the commercial wisdom of the CoC." 11. Counsel for the Appellant has raised exception to the provision of Clause 8.7 which according to the Appellant violates Section 14 of the RERA. Clauses 8.7, 8.9 and 8.20 which have been referred by the Resolution Applicant are as follows:- "8.7 The Resolution Applicant/ Corporate Debtor may alter the layout and/ or the building plans including the height and location of the buildings and the common areas. The carpet area, in respect of Home Buyers whose claims have been admitted by the Resolution Professional, shall not exceed the area admitted by the Resolution Professional. In case the carpet area to be given the Home Buyer is reduced then the Sales Value as per the allotment letter shall be proportionately reduced and in the event the carpet area is increased then the consideration payable by the Home Buyer on such increased Carpet Area will be equivalent to the Project launch price." "8.9. The Resolution Applicant shall have the right to reconfigure with revised specifications the said unit/project on the best judgment of the Resolution Applicant and the prevailing market conditions. The Resolution Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been fixed @ Rs.33,000/- per sq. ft. which is different from the amount at the rate of Rs.13,500/- to Rs.21,000/- per sq. ft. which was initially promised by the Corporate Debtor. The clause in the Resolution Plan effectively modify all earlier contract between the parties and under the Scheme of the IBC, it is fully permissible to provide for new arrangement and clauses for revival of the Corporate Debtor which is the object of the IBC. 15. The submission of the Appellant is that CoC has not exercised its commercial wisdom and has not looked into the relevant cost for construction and fixation of the MSP of Rs.33,000 per sq. ft. When the plan is approved with requisite vote, it has to be assumed that the said approval is in the commercial wisdom. More so, fixation of MSP for allotment of flats to homebuyers is a commercial decision. Further, escalation for prices of allotment of flats can very well be undertaken to revive the Corporate Debtor and Appellant cannot insist that the Resolution Applicant should also make the allotment of flats on the same price on which the Corporate Debtor has promised to make. It is further relevant to notice that by a subsequent order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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