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TMI Blog2024 (11) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the Respondent that the Appellant has no locus to challenge the order admitting Section 7 application. Nonfulfillment of threshold for filing a Section 7 application under the Insolvency and Bankruptcy Code (IBC) - HELD THAT:- Section 7 application filed by the Financial Creditors in class is dated 25.09.2021, is much subsequent to the registration of the project Lotus Isle (Residential). The Applicants in the application under Section 7 have given relevant facts. The copy of the application is filed as Annexure A-44, which clearly mentions that the project was bifurcated by permission dated 31.01.2017. Section 7 application was filed by the Financial Creditor in a class alleging default committed by the Corporate Debtor in giving possession of the units, within the time given in the Builder Buyers Agreement. Several amounts have already been disbursed by the Financial Creditors in a class in residential units consisting three towers wherein total allotted units are 255, out of which 29 unit holders were Applicants in Section 7 application. The Adjudicating Authority has returned a finding in paragraph 17 that 10% allottee of the real estate can maintain a petition. It is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor, allotting different units in the residential towers to be constructed in the Plot in question. As per Builder Buyers Agreement, the possession was to be handed over to the allottees within 36 months. Commercial spaces were constructed, however, the residential units were not constructed within the time under which the possession was promised to he handed over to the allottees. (iii) A Section 7 application was filed by 51 allottees of the residential project, holding 29 units in the Lotus Isle (Residential) alleging default of an amount of Rs.70,93,58,956/- and seeking initiation of Corporate Insolvency Resolution Process ( CIRP ) against the Corporate Debtor, it having committed default. (iv) The Appellant, who is not allottee of residential Tower or commercial spaces, filed various applications in Section 7 application CP No. (IB)-597(PB)/2021 being IA No.3816 of 2022 under Section 60(5) r/w 65 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the IBC ), IA No.1452 of 2024 and IA No.3753 of 2024. (v) Section 7 application filed by Financial Creditors in class, was opposed by the Corporate Debtor. The Adjudicating Authority heard the Financial Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior Counsel appearing for the Respondent submits that the Appellant has no locus to file this Appeal. The Appellant is neither allottee of the project Lotus Isle (Residential), nor even allottee of commercial units, constructed on the plot in question. He has no locus to challenge the order admitting Section 7 application filed by Financial Creditors in a class. The Appellant having no concern with the project in question, has been filing applications after applications in the proceedings to cause delay and putting hindrance in the proceedings. The Appeal is liable to be dismissed on the ground of lack of locus of the Appellant to challenge order of Section 7 application. The Appellant in no manner being affected, could not be allowed to challenge the impugned order. It is submitted that Appellant has no concern with the project in question. He claims to be a stakeholder in another sister company of Corporate Debtor GGPPL, which has nothing to do with the project in question. Shri Sinha submits that no submissions were advanced by the Appellant on the applications, which have been filed by the Appellant, except questioning the non-compliance of threshold in Section 7 application. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties having addressed submissions with regard to threshold in respect of Section 7 application, to satisfy ourselves, we have proceeded to examine the contention regarding nonfulfillment of threshold. 10. From the materials brought on record, it is clear that allotment was made vide Lease Deed dated 26.04.2011 of Plot No.H-10, Sector 98, Noida. The Revised Sanctioned Plan approved by the Noida has been brought on the record at page 761 of the Appeal as Annexure A-23, which revised sanctioned plan dated 19.05.2015 refers to permissible norms of development. Under the heading Permissible Norms of Development, residential is provided 40% and Commercial is 60%. Table Permissible Norms of Development is as follows: PERMISSIBLE NORMS OF DEVELOPMENT DESCRIPTION % Permissible Area (SQM.) Proposed Area A) Residential Max 40% 45,120.000 44,838.933 B) Commercial Max 60% 67,680.000 67,565.195 TOTAL SITE AREA 112,800.000 112,404.12 11. Thus, the commercial plot allotted was for mixed plan use, which contained both, commercial use and residential use. The learned Counsel for the Respondent has referred to registration of project with RERA, which was registered on 11.08.2017. Registration det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India 2021 (5) see 1. Para 176 and 177 of the judgment reads thus: 176. We have referred to the definition of the word allottee'' in Section 2(d) of the RERA. In regard to a real estate project, all persons, who are treated as allottees, as per the definition of allottee would be entitled to be treated as allottees, for the purpose of Section 5(8)(f) (Explanation) and also, for the purpose of the impugned provisos. All that is required is that the allottees must relate to same real estate project. In other words, if a promoter has a different real estate project, be it in relation to apartments, in the case of an application under Section 7, those would not be reckoned in computing one-tenth as well as the total allotments. 177. The rationale behind confining allottees to the same real estate project is to promote the object of the Code. Once the threshold requirement can pass muster when tested in the anvil of a challenge based on Articles 14, 19 and 21, then, there is both logic and reason behind the legislative value judgment that the allottees, who must join the application under the impugned provisos, must be related to the same real estate project. The connection wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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