9911796707
TMI Blog2024 (11) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... ease Deed dated 24.12.2014 in respect to Appellant, the Appellant(s) are owners of the units allotted to them? - HELD THAT:- The Hon ble Supreme Court had occasion to consider a homebuyer s project in Jaypee Kensingston Boulevard Apartment Welfare Association ors. Vs. NBCC (India) Ltd. Ors. [ 2021 (3) TMI 1143 - SUPREME COURT ], where Hon ble Supreme Court has held that Resolution Plan has to comprehensively deals with all the assets and liabilities of the Corporate Debtor and no housing project could be segregated for the reason that the same has been completed or is nearing completion. Thus, by virtue of allotment of commercial space in favour of the Appellant(s), including the Lease Deed dated 24.12.2014, the Appellant(s) cannot claim to have become owners of the commercial spaces. The CD continues to own the assets and the plea of the Appellant(s) that assets be excluded from CIRP of the CD, or the Appellant(s) are owners of the commercial space/ units allotted to them, cannot be accepted. Whether the Appellant(s) being dissenting Financial Creditors, entitled for the amount as per Section 30, sub-section (2)(b)? - Whether the Appellant(s) had made sufficient grounds to interfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A-10, the list of financial creditors in the class of commercial space buyers has been annexed at page 175, which include the amount of claim submitted and amount of claim admitted by the RP - There has been no consideration of the claim of the rent by the Appellant from July 2019, which was one of the prayers made in the application, we are of the view that ends of justice will be served in granting liberty to the Appellant to file an appropriate application for claim of rent subsequent to commencement of CIRP. It shall also be open for the Appellant to claim the said rent as CIRP cost. However, no concluded opinion expressed for the said claim and it is for the Adjudicating Authority to consider and take appropriate decision. The order of the Adjudicating Authority upheld - appeal dismissed. - JUSTICE ASHOK BHUSHAN CHAIRPERSON AND BARUN MITRA MEMBER (TECHNICAL) For the Appellants : Mr. Gaurav Gupta, Ms. Nidhi Yadav, Advocates, Ms. Aishwarya Modi Seth, Mr. Jasmeet Singh and Mr. Pushpendra S. Bhadoriya, Mr. Vijay Sharma, Advocates. For the Respondents : Mr. Abhishek Anand, Mr. Karan Kohli, Ms. Palak Kalra, Advocates for RP. Mr. P. Nagesh, Sr. Advocate with Mr. Rishabh Jain, Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for deciding the Appeal(s) are: (i) The Corporate Debtor M/s IP Construction Pvt. Ltd., a real estate company, involved in development of Project. The Corporate Debtor ( CD ) has issued an allotment letter dated 04.07.2012 in favour of Appellant in Company Appeal (AT) (Ins.) Nos.40 and 45 of 2024, allotting the office spaces Nos.GF-08, GF-09 and GF-10 on the ground floor, each admeasuring 47.93 sq. mt. in the Project Coral Brio situated at C5, Sector-18, Vasundhara, Ghaziabad. (ii) Similarly, the Appellant in Company Appeal (AT) (Ins.) No.61 of 2024 was allotted Commercial space/ office Nos. SF-02, SF- 03 and F-05 vide allotment letter dated 31.03.2013. On 07.05.2014, Nupur Garg issued a letter to the CD requesting cancellation of commercial spaces/ Office Nos. SF-02 and SF- 03 and sought refund of the booking amount. The Appellant Nupur Garg also claimed that on 24.12.2014, Lease Deed was executed between Nupur Garg and the CD regarding the Office Space SF-05 with effect from 01.01.2015 for a period of nine years on lease rent. (iii) The CIRP against the Corporate Debtor commenced on an application filed under Section 7 by the Union Bank of India. The Adjudicating Authority vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 30.10.2023, approving the Resolution Plan. (viii) The Appellant Nupur Garg has filed Company Appeal (AT) (Ins.) No.61 of 2024 challenging the order dated 30.10.2023 passed in IA No.3524 of 2020. 6. Learned Counsel for the Appellants in Company Appeal (AT) (Ins.) Nos.40 and 45 of 2024 submits that the Appellants being commercial space buyers, who had paid substantial amount to the CD, were entitled for execution of Sale Deed for commercial spaces. In the Resolution Plan the claim of the Appellants for execution of the Deed has not been accepted and there were initial proposed only 50% of principal amount in the Resolution Plan. The commercial spaces, which were allotted to the Appellants are commercial spaces, which are owned by the Appellants and the Appellants were also handed over the possession of the commercial spaces on 15.10.2017. The Appellants were required to pay the balance amount on receipt of the completion certificate. Certain other commercial space buyers have filed Company Appeal (AT) (Ins.) No.350 of 2020 Alok Sharma vs. M/s IP Construction Pvt. Ltd., where this Tribunal has directed for execution of Sale Deed in favour of commercial space buyers, after col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CD and the ownership of the assets continued with the CD. The fact that both the Appellant(s) in their application seeking direction to execute the Sale Deed in their favour, itself proves that Appellant(s) are not the owner of the premises. The Resolution Plan having been approved by majority by 87.49%, the Plan is binding on all stake holders of the CD, including the Appellant(s). The Appellant(s) as dissenting Financial Creditors were entitled to the liquidation value as per Section 30, sub-section (2). It is submitted that IA, which was filed by the Appellant of Company Appeal (AT) (Ins.) No.45 of 2024, being IA No.4369 of 2022 was listed for 11 times, but it was never pressed or decided. No one appeared to press the application, hence, it was rejected on 05.10.2023. The prayer of the Appellant to restore the IA was rightly been rejected, since Plan approval application was also heard and reserved on 05.10.2023. It is submitted that the claim of the Appellant of Company Appeal (AT) (Ins.) No.40 of 2024 having been admitted, they are entitled for their claims as per the Resolution Plan. They have no right to challenge the approval of Resolution Plan. The Appeal(s) filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) on the basis of allotment of commercial spaces by the CD, by virtue of Lease Deed dated 24.12.2014 in respect to Appellant Nupur Garg, the Appellant(s) are owners of the units allotted to them? (III) Whether the Appellant(s) being dissenting Financial Creditors, entitled for the amount as per Section 30, sub-section (2)(b)? (IV) Whether the Appellant(s) had made sufficient grounds to interfere with the order dated 30.10.2023 passed by the Adjudicating Authority, approving the Resolution Plan submitting by the SRA? (V) Whether rejection of IA 3524 of 2020, filed by the Appellant of Company Appeal (AT) (Ins.) No.61 of 2024 and the rejection of IA No.4369 of 2022 and 5253 of 2023 filed by the Appellant(s) of Company Appeal (AT) (Ins.) No.45 of 2024 deserve to be interfered with? Question Nos.(I) and (II) 12. Both the questions being interconnected are being taken together. 13. It is an admitted fact that Corporate Debtor has allotted commercial space to the Appellants of Company Appeal (AT) (Ins.) Nos.40 and 45 of 2024 on 04.07.2012 as GF-08, GF-09 and GF-10 on the ground floor, each measuring 47.93 sq. mt. in the Project Coral Brio. Similarly, SF-05, SF-2 and SF-3 on second floor h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana Ors. AIR 2012 206, wherein in paragraphs 18 and 19, following have been laid down: 18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred. 19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter. 15. The Hon ble Supreme Court had occasion to consider a homebuyer s project in Jaypee Kensingston Boulevard Apartment Welfa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed with the above observations. Pending application, if any, stands disposed of. Interim order, if any, passed by this Tribunal stands vacated. No order as to costs. 17. The above direction, which was issued by this Appellate Tribunal was with respect to 12 spaces of commercial space buyers, who had filed the Appeal and who had filed the CA giving rise to the Appeal. In the above case, this Tribunal observed that Hence, we are unable to sustain the views of Respondent/ RP that these houses registration will violate Moratorium under Section 14 of the Code . After taking the aforesaid view, the direction was issued to execute the Sale Deed after collecting dues and costs. The above order has to confine to the Appellant, who had filed the Appeal. The above order at best can be held to lay down ratio that moratorium under Section 14, does not prohibit execution of Sale Deed, but the said judgment itself cannot be held to declare that unit allottees are the owners of units allotted to them. 18. We, thus, are of the view that by virtue of allotment of commercial space in favour of the Appellant(s), including the Lease Deed dated 24.12.2014 in favour of Nupur Garg, the Appellant(s) canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Apartment 20.58 Voted For Total 100 21. A perusal of result of voting on Resolution Plan, indicate that Financial Creditors in case of commercial space buyers have dissented. The Appellant(s) are also part of Financial Creditors in class of commercial space buyers. Financial Creditors being a dissenting Financial Creditors are entitled as per Section 30, sub-section (2) sub-clause (b), which is as follows: 30(2)(b) provides for the payment of debts of operational creditors in such manner as may be specified by the Board which shall not be less than- (i) the amount to be paid to such creditors in the event of a liquidation of the corporate debtor under section 53; or (ii) the amount that would have been paid to such creditors, if the amount to be distributed under the resolution plan had been distributed in accordance with the order of priority in sub-section (1) of section 53, whichever is higher, and provides for the payment of debts of financial creditors, who do not vote in favour of the resolution plan, in such manner as may be specified by the Board, which shall not be less than the amount to be paid to such creditors in accordance with sub-section (1) of section 53 in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve option is also provided to opt for commercial space possession with registered sale deed in terms of new offer rate and adjustment of 100% of the paid principal. 23. Alternate option for commercial space buyers has also been extracted by Adjudicating Authority, in paragraph 4.4, which is part of the Resolution Plan. Paragraph 4.4 of the impugned order is as follows: Alternate option for commercial space buyer: Alternative option for commercial space buyer Possession with registered sale deed New Tariff Offer Rate (Per sq. ft. of super area) Floor New Tariff General Defer Rate for Commercial Allottees Adjustment of Money Already Paid Ground 18,000 16,000 100% of the principal amount paid shall be adjusted against total value of commercial space opted. First 14,000 12,000 Second 11,000 9,000 Offer Conditionality: 1) Offer includes relocation of existing space within the option of available space. 2) No guarantee to continue with the existing space. Kindly check for new model plan for commercial space. So far as it shall be possible commercially feasible, existing space may also be offered. 3) Old Agreement/ Offer/ Possession Letter shall stand cancelled on NCLT approval date. 24. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Resolution Professional. ii. Pass appropriate directions for execution and registration of sale Deed in favour of the Applicant in respect of commercial space/office No. SF-05. iii. Pass appropriate directions to suitably modify the approved claim of the Applicant to include outstanding rent amount which became accrued and due of Rs. 20,69,552/- as the principal/basic amount of the claim. iv. Pass appropriate directions for payment of legitimate outstanding rental dues starting from July 2019 till date, cumulatively amounting to Rs. 6,64,132/- (Six Lakhs Sixty- Four Thousand One hundred and thirty-two) along with interest @ 18 p.a compounded quarterly on the unpaid rent, on account of lease of commercial space/office No. SF-05 to the Corporate Debtor by the Applicant. v. Pass appropriate directions to take action remedial measure against the RP, including initiation of disciplinary action, if any, as deemed fit. vi. Any other order that this Hon'ble Tribunal may deem fit in the facts and circumstances of this case. 27. In view of what we have held above, we are of the view that the prayer of the Appellant to exclude the commercial space from the Resolution Plan, could not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication with regard to prayer (iv), which has not been adverted to and decided in the impugned order. 30. Coming to the IA, which was filed by the Appellant in Company Appeal (AT) (Ins.) Nos.40 and 45 of 2024, is the Application, which was earlier filed being IA No.4369 of 2022. The Appellant has prayed for direction to execute the Sale Deed and certain issue with regard to claims. The claims of the Appellant has been admitted by RP, which is reflected in the List of Creditors as noted above. The claim of the Appellant, prior to CIRP, thus, become final. Although, IA No.4369 of 2022 was dismissed for non-prosecution and IA No.5253 of 2023 was dismissed on the ground that the matter has progressed too far. The RP in his reply to the Appeal has stated that IA No.4369 of 2022 was listed 11 times and IA No.5253 was listed 8 times. In any view of the matter, the application for recall of the order was not accepted by Adjudicating Authority on the ground that Plan approval has already been reserved. 31. We, thus, do not find any ground to interfere with the order dated 05.10.2023 passed by Adjudicating Authority in IA No. 5253 of 2023. More so, in view of our reasons and discussions a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
