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TMI Blog2024 (3) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... not precluded to consider any prayers made in the Application and to entertain any issue with regard to such prayers. The submission of the Appellant that when the Corporate Debtor is being run as a going concern, it is open for the RP to continue the real estate business of the Corporate Debtor and while running business of real estate Company, execution of Conveyance Deed, payment of rent is part of the said business. There can be no dispute that by virtue of Section 17, 18 and 25, it is duty of the IRP to manage the affairs and take control of the assets over which the Corporate Debtor has ownership rights. The allottees, cannot as a right claim execution of Conveyance Deed, as has been prayed in the present case before the Adjudicating Authority. The RP, who is running the business of the Corporate Debtor is the best person to take a decision as to what part of the business of the Corporate Debtor can be carried out. There cannot be any dispute to the proposition that the rights of allotees cannot be affected in the CIRP as their interest is to be appropriately preserved and protected, but in what manner, the rights of homebuyers are to be protected and preserved is an is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d different commercial units in the project developed by the Corporate Debtor. A Memorandum of Understanding ( MoU ) was entered between the Corporate Debtor and the Appellant, by which the Appellant was offered different shops. (ii) One of the MoU has been filed at Annexures A-3 dated 08.06.2016. As per the MoU, the Corporate Debtor allotted Shop No.TW-14A, on Ground Floor, Block A B, having super area of 23.50 Sq. Mtrs. The MoU further contemplated that Company assures to the Second Party to pay lease rent for the premises till 27.01.2032. The Annexure-A to the MoU provided for amount of rent payable per month for different years. As per the MoU rent was paid to the Appellant, prior to initiation of Corporate Insolvency Resolution Process ( CIRP ) against the Corporate Debtor. (iii) By order dated 22.08.2019, CIRP commenced against the Corporate Debtor. The Respondent - Narender Kumar Sharma is working as Resolution Professional ( RP ) (iv) Applications were filed before the Adjudicating Authority being IA No.3492/2020 and IA No.3314/2020 by the allottees, asking for registration of shops in their name, which was disposed of, noticing the submission of RP that RP has ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. It is submitted that in the Applications, which were filed by the Appellant before the Adjudicating Authority, in which orders have been passed, there was no prayer seeking any direction to execute the Conveyance Deed and it is during the course of the arguments that the said submission was advanced. It is further submitted that as per the MoU, the amount to which the Appellant was entitled, the said amount has been kept in the Fixed Deposit Receipt, which shall be disbursed as per the orders of the Adjudicating Authority in accordance with law. 6. We have heard learned Counsel for the parties and have perused the record. 7. The first submission of learned Counsel for the Appellant is that the Appellant s prayer seeking direction to the Adjudicating Authority to execute the Conveyance Deed in favour of the Appellant was rejected, whereas the Appellant was entitled for the said relief. The learned Counsel for the Appellant has also relied on earlier order dated 31.08.2020 passed by the Adjudicating Authority. The order dated 31.08.2020 passed by the Adjudicating Authority is as follows: IA-3492/2020 IA-3314/2020 Applications filed by allottees asking for regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application, which was disposed of is IA No.4924 of 2021, where, following prayers were made: i) Allow the present Application and direct the Resolution Professional to release the monthly rent/ arrears owed to the genuine buyers/ allottees in terms of the respective MoUs as per the Forensic Audit Report and the list published by the Resolution Professional as the allottees of project are Company Appeal (AT) (Insolvency) No.272 of 2024 7 dependent on the same since the initiation of the CIRP; and/or ii) Dispose of the application I.A. No.4252/2020 in C.P. (IB)- 1397(PB)/2019 in terms of the order of the Hon ble Delhi High Court passed in the case Narmdeshwar Singh Ors. v. National Company Law Tribunal Ors [CM(M) 314/2021] expeditiously; and/or iii) Pass any other order as it deems fit in the interest of justice. 10. The RP has also filed his reply to the IA 4252/2020, where it has been pleaded that allottees had actually received the rent till June 2018, which is over a year prior to the initiation of CIRP. In paragraph-3, following has been stated: 3. That it was observed by the Resolution Professional that the Allottees who are claiming to havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific prayer was made, the Adjudicating Authority was not precluded to consider any prayers made in the Application and to entertain any issue with regard to such prayers. The learned Counsel for the Appellant relied on the judgment of this Tribunal in Alok Sharma (supra) decided on 17.06.2022, where this Tribunal has laid down following in paragraph (l) and (m): l. All the above also suggests that the rights of home buyers cannot be affected adversely in the `Corporate Insolvency Resolution Process and their interest is to be appropriately preserved and protected within the parameters of the I B Code, 2016. m. Hence, in view of the above observations, this `Appellate Tribunal is not in a position to sustain the order of the `Adjudicating Authority and accordingly, this `Tribunal sets aside the impugned order dated 16.01.2020, dismissing CA No.2265/(PB)/2019 in CP(IB) 593 of 2018 and directs the `Resolution Professional to execute the sale deed after collecting `Dues and Costs , if any, remaining unpaid, including the `Costs of Registration , `Penalty and `other incidental Costs , till date, etc. The instant `Appeal is allowed with the above observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be protected and preserved is an issue, which depends on facts of each case and nature and function, which is carried out by the RP, who is vested with the management. Direction issued in the case of in Alok Sharma (supra) to execute the Sale Deed has to confine to the facts of the said case and cannot be relied in the present case. 15. Now, second issue, which needs to be considered as to whether Appellant is entitled to receive the payment of rent as assured in the MoU entered with the allottees and the erstwhile management. The Adjudicating Authority in the impugned order has noticed the statement of the RP that rent received in respect of the units allotted to Applicants has been kept in Fixed Deposit and would be disbursed in accordance with law. The above statement of RP recorded in the impugned order amply protect the interest of the allottees. How the amount received during the CIRP from the shops allotted to the Appellant is a question, which depends on the ultimate decision of the Adjudicating Authority in the CIRP and during the currency of CIRP, the Adjudicating Authority has not committed any error, in not granting prayer of the Appellant to make the payment of en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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