9911796707
TMI Blog2024 (6) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, all of them would qualify as separate allottees and they would count both in the calculation of the total allotments, as also in reckoning the figure of hundred allottees or one-tenth of the allottees, whichever is less.' Thus, for finding out as to whether threshold is fulfilled or not under Section 7 has to be look into number of allottees. A copy of the application which has been filed by the allottees indicate that in the application, document of the financial creditors including copy of the agreement were brought on record. Annexure-D Part-I which contains a list of financial creditors, along with details of allotted units was filed which indicate that in Column 4, unit number of each financial creditor has been mentioned. Validity of possession and issuance of Occupancy Certificate - HELD THAT:- On looking into the Report of the IRP, it was clearly mentioned that there were no possession of the unitholders noticed except Unit No.10A in the IT Block which was open and in possession of PAN Security Services and BLS Developer Pvt. Ltd. In paragraph 12, the aforesaid statement has been made by the IRP. Paragraph 12(e) which was relied by the Appellant only mentions that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Mr. Abhishek Anand, Mr. Karan Kohli, Mr. Palak Katra, Advocates for RP Mr. Aditya Gauri, Mr. Amar Vivek and Ms. Damini Srestha for Respondent Nos. 145, 146 JUDGMENT Ashok Bhushan, J. This Appeal by a Suspended Director of the Corporate Debtor- M/s. Vardhman Estates Developers Pvt. Ltd. has been filed challenging the order dated 07.02.2023 passed by the Adjudicating Authority (National Company Law Tribunal), Principal Bench, New Delhi admitting Section 7 application filed by the Respondents- allottees of Real Estate Project. Aggrieved by the admission order, this Appeal has been filed. 2. Brief facts necessary to be noticed for deciding the Appeal are : - 2.1. Greater Noida Authority by Lease Deed dated 26.12.2008 allotted Plot No.26/1 to M/s. Zestha Projects Pvt. Ltd. A joint Agreement was entered between M/s. Zestha Projects Pvt. Ltd. and the Corporate Debtor on 16.04.2007 for development of Plot of 40470 Sq. Mts. located in Knowledge Park-III, Greater Noida (U.P). The Corporate Debtor launched Real Estate Project on the lease land by name and style of Vardhaman I Valley. Project comprised of IT/ ITES office, Residential Units, Commercial Spaces and other facilities. The Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mended Section 7 application with Schedule-1 was filed. 2.3. Adjudicating Authority heard the parties and by the impugned order dated 07.02.2023 admitted Section 7 application. Adjudicating Authority in the impugned order held that number of allottees who have filed the applications are able to cross the threshold of 100. It was held that the Corporate Debtor has not been able to honour commitment of giving possession. Adjudicating Authority also returned a finding that looking to the RERA Reports and site photographs given as late as 02.07.2021 clearly established the incomplete construction till date. Aggrieved by the order, this Appeal has been filed. 3. Appeal was entertained on 21.02.2023 and an interim order was passed directing the IRP to ensure that the Corporate Debtor run as a going concern and IRP to take steps for completion of project with the assistance of suspended directors/ex-management and employees and further the CoC was not to be constituted in pursuance of the impugned order. 4. We have heard Shri Saurabh Kirpal, Learned Senior Counsel for the Appellant, Shri Abhishek Anand, Learned Counsel for the Resolution Professional and Learned Counsel appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submissions of the Counsel for the Appellant submits that the application was filed by 117 financial creditors representing 104 allotted units, hence, the application fulfils the threshold of 100 allottees as required by Section 7 of the Code. It is further submitted that the Adjudicating Authority had allowed applications IA No.2524 of 2022 and IA No. 2624 of 2022 impleading 22 and 2 allottees respectively and after impleadment of further allottees, number of Financial Creditors are 146 who represent 122 allotted units. It is submitted that the Adjudicating Authority has returned a finding that there are 122 allottees who have filed the applications. It is submitted that the Adjudicating Authority permitted amended memo of parties to be brought on record by order dated 12.09.2022, hence, the amended application can also be looked into to find out number of allottees. It is submitted that the project is neither completed nor any Occupancy Certificate has been given to the Corporate Debtor. Appellant himself has brought material on record to indicate that Greater Noida Authority has raised various objections with regard to claim of Corporate Debtor of Occupancy Certificate. Occupa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. We would have to take the definition of the allottee from Section 2(d), as it is. Therefore, it does not matter whether a person has one or more allotments in his name or in the name of his family members. As long as there are independent allotments made to him or his family members, all of them would qualify as separate allottees and they would count both in the calculation of the total allotments, as also in reckoning the figure of hundred allottees or one-tenth of the allottees, whichever is less. 187. As far as the situation projected about, there being no clarity regarding whether, if there is a joint allotment of an apartment to more than one person, is it to be taken as only one allottee or as many allottees as there are joint allottees, it would appear to us, on a proper understanding of the definition of the word allottee in Section 2(d) and the object, for which the requirement of hundred allottees or onetenth has been put, and also, not being oblivious to Section 399(2) of the Companies Act, 1956, as also the Explanation in Section 244(1) of the Companies Act, 2013. in the case of a joint allotment of an apartment, plot or a building to more than one person, the allot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 13- Mahesh Kumar Garg, Santosh Garg, Mahesh Garg, Monika Garg, who were allotted 4 units. When we count the units as reflected in Annexure D Part-I, the units which are represented by the Financial Creditors are more than 100. 11. It is the case of the parties that applications of impleadment were filed which was allowed by the Adjudicating Authority and in view of the orders, allowing the impleadment applications 22+2 Financial Creditors were further added. In this context, we may refer to the orders passed by the Adjudicating Authority. On 01.08.2022, IA No. 2524 of 2022, following order was passed:- IA-2524/2022 This is an application filed by the Twenty Two (22) allottees claiming to be real estate allootees, seeking impleadment in the Section 7 Petition i.e., CP (IB)- 674(PB)/2021. Notice was ordered on 19.07.2022, at the request of the Ld. Counsel for the Respondent, time was granted to file his reply. He further submits that Reply is filed. Reply is taken on record. In view of the fact that the section 7 petition is not admitted so far, IA-2524/2022 is allowed and disposed. 12. Further IA No.2624 of 2022 filed by the two allottees was allowed by same order dated 01.08.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case has been stated as follows:- 8. In pursuance of the order dated 08.08.2023, Answering Respondent in order to submit a Report before this Hon'ble Appellate Tribunal appointed a Govt Approved Valuer Surveyor i.e. Mr. Ajay Kumar Sharma in order to assist the IRP to inspect the project site namely i.e., Vardhman I Valley wherein five (5) Towers are to be constructed namely i.e., Residential Tower, 1.T Block, Hotel, Club Block and Commercial Block known as Galleria and assist the IRP to evaluate the status of completion of the Project for submission of report before this Hon'ble Appellate Tribunal. The status of each Block / Tower of the Project as per the Report submitted by the Surveyor is produced herein below : Sr. No. Tower/Block Name Pendency of Work in Percentage Observation noted by the Surveyor 1. Residential Tower: Studio (Basement), Apartment Ground floor and 13 floors. 65% The Residential Tower is not currently ready for inhabitation. The Residential Tower is not ready for possession. 2. I.T Block: Basement, Ground Floor and Total 9 Floor. 52% The IT. Block is not ready for functioning. 3. Hotel: Basement, Ground Floor and 8 Floors. 34% The Hotel tower is not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Tower/Block. Around 23 units in the said Block/Tower were having Flex boards/notice/ Address Board on them. While none of these units were open and shutters of all these units were closed during all the visits made at the Project site by the Answering Respondent, it can be assumed that the said Units were in the possession to the Unit holders/ buyers of the Corporate Debtor. A copy of the Photographs taken in respect of such Units is annexed herewith as Annexure R-9 (Colly). 18. When we look into the Report of the IRP, it was clearly mentioned that there were no possession of the unitholders noticed except Unit No.10A in the IT Block which was open and in possession of PAN Security Services and BLS Developer Pvt. Ltd. In paragraph 12, the aforesaid statement has been made by the IRP. Paragraph 12(e) which was relied by the Appellant only mentions that the status of the possession of the units in the commercial block could not be determined. However, Flex Boards/notices of various professionals/businesses were affixed in some of the units in the said tower/block. It was observed Around 23 units in the said Block/Tower were having Flex boards/notice/ Address Board on them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also any claim under the provision of RERA. _________________ Kamal Bhardwaj 20. The above No Dues and No Claim Certificates at best can be read as certificates given by allottees to forego all claims such as delay interest charges penalty etc. relating to said unit. The said No Dues and No Claim Certificate cannot in any manner be read as the person giving no dues certificate is no more allotttee of the unit. Sub-Lease Agreement which has been executed by corporate debtor in favour of Kamal Bhardwaj dated 05.03.2020 although mentions Agreement to Sub-Lease with possession but execution of Sub-Lease in no manner can lead to deletion of the status of the allottees. Thus, No Dues and No Claim Certificate relied by the appellant and Sub-Lease Agreement is not a ground on which the name of those who have given No Dues and No Claim Certificate should be deleted from number of the applicants who have filed Section 7 application. Adjudicating Authority has also in the impugned order has held that the construction is incomplete and the applicant fulfils the threshold of minimum 100 allottees. Adjudicating Authority also rejected the submission raised before it that 36 unitholders who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lment of threshold by allottees was elaborately considered by the Hon ble Supreme Court in Manish Kumar Case (supra). The Hon ble Supreme Court has held that application under Section 7 can be moved provided applicants are Financial Creditors and there must be a default of Rs.1 Crore. It was held that only change which has been brought after the amendment is that the application can be presented by the allottees in those requisite number introduced by the proviso and default can be qua any of the applicants. In paragraphs 170 and 171, following was held:- 170. It is indisputable that in order to successfully move an application under Section 7 that there must be a default which must be in a sum of Rs 1 crore. It is equally clear that the amount of Rs 1 crore need not be owed by the corporate debtor in favour of the applicant. It must be noted that the Explanation existed even prior to the provisos being inserted. It is open to a financial creditor, to move an application in the company of another financial creditor or more than one other financial creditor. In fact, a perusal of the Rules, which we have already extracted, would indicate that irrespective of the number of applicants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contention of the petitioner based on the theory of default, rendering the provisions unworkable and arbitrary. 23. The submission advanced by the Counsel for the Appellant that application did not fulfil the threshold of 100 allottees, thus, is factually incorrect and cannot be accepted. Applicants who had filed the application represented more than 100 units, hence, the application could not be said to be deficient in any manner. It is also relevant to notice that application was filed in October, 2021 and more than 2 years have lapsed and we had passed an interim order on 21.02.2023. Paragraph 5 of the interim order, is as follows:- 5. List this Appeal on 20th March, 2023. In the meantime, IRP shall ensure that the Corporate Debtor is run as a going concern and it shall be open for the IRP to take steps for completion of project with the assistance of suspended directors/ex-management and employees. Committee of Creditors shall not be constituted in pursuance of the Order impugned. 24. In view of the foregoing discussions and our conclusion, we are of the view that the Adjudicating Authority did not commit any error in admitting Section 7 application. Taking the note of the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
