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TMI Blog2025 (4) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... led against the common judgment dated 20.09.2024 passed by National Company Law Tribunal, Court VI, New Delhi in different IAs filed by the Appellant(s) in Company Petition No. (IB) - 710/(PB)/2019. By the impugned order, different Applications filed by all 8 different Appellant(s), including IA No.4572 of 2023 filed by the Appellant Avni Jain has been rejected. Aggrieved by the common order dated 20.09.2024, these Appeal(s) have been filed. 2. Brief facts necessary to be noticed for deciding the Appeal are: i. On an Application filed by Homebuyers, Corporate Insolvency Resolution Process ("CIRP") commenced against the Corporate Debtor ("CD") - Rajesh Projects (India) Pvt. Ltd. vide order dated 19.09.2019 passed by the Adjudicating Authority. The Adjudicating Authority by the same order appointed Interim Resolution Professional ("IRP"). ii. Order of CIRP was challenged before this Tribunal in Company Appeal (AT) (Ins.) No.1056 of 2019, where this Tribunal vide order dated 05.02.2020 initiated reverse CIRP, wherein the Project of the CD is to be constructed under the supervision of Resolution Professional ("RP") and the funding was to be arranged by the Promoters and the Lender ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orised and void. It was further pleaded that payment of Rs.50,000/- booking amount was received only on 18.12.2019, i.e. after four months from the alleged date of application and about three months from the initiation of CIRP. The RP pleaded that RP is duty bound to protect the interest of the CD and allotment claimed by the Appellant being void ab-initio, no relief can be granted to the Appellant. viii. The Adjudicating Authority heard the parties and Application filed by the Avni Jain, being IA No.4572 of 2023 was treated to be leading Application, facts of which were noticed for deciding all the Applications filed by the Appellant(s). The Adjudicating Authority after hearing the parties, took the view that in view of moratorium imposed under Section 14, sub-section (1) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "IBC") and CIRP was initiated on 19.09.2019, no assets of the CD could be transferred subsequent to the moratorium. It was held that amount of Rs.50,000/- was paid with respect to Unit No.E-2401, RG Luxury Homes on 18.12.2019. It was also found that the amounts were required to be made in the U.P. RERA Bank account in the Karnataka Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the IRP and payment of allotment money was also made, which cheque has been brought on record along with IA filed for additional documents. It is submitted that role of IRP/ RP is not an adjudicatory role and IRP could not have cancelled the allotments. It is submitted that the CD is under reverse CIRP, which is under the Promoters, who are funding the Project under the supervision of IRP. Payment and issuance of receipt establishes bonafide allotment. The IRP had observed in letter received on 10.09.2019 that the unit allotted to the Appellant is undervalued. It is submitted that IRP was required to file an Application under Section 45 of the IBC for declaration of unit as undervalued and it was the jurisdiction of the Adjudicating Authority only to declare the unit undervalued. The IRP could not have cancelled the units on the said ground. The facts of each Appellant(s) are different. 6. Learned Senior Counsel appearing for the IRP refuting the submissions of learned Counsel for the Appellant(s) submits that CIRP having commenced on 19.09.2019, there was no occasion of allotment of any Units to the Appellant(s) on 19.09.2019 by the Ex-Management. It is submitted that all Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant in paragraph 12 of its written submission. Learned Counsel for the IRP submits that IRP being duty bound to protect the assets of the CD, after looking into the records, was of the view that allotments claimed by the Appellant(s) are undervalued and void, the Appellant(s) were communicated about the cancellation of the units, which units have already been allotted to other Homebuyers in the CIRP. 7. We have considered the submissions of learned Counsel for the parties and have perused the records. 8. For deciding all the Appeal(s), we need to refer to the facts on record in Company Appeal (AT) (Ins.) No.2288 of 2024 - Avni Jain vs. Manoj Kulshrestha, IRP for Rajesh Projects (India) Pvt. Ltd. 9. The Appellant - Avni Jain has come up with a case that Allotment-cum-Builder Buyer Agreement was issued to her on 19.09.2019. In the Appeal copy of the allotment letter for the Unit E-2401 in Rajesh Projects (India) Pvt. Ltd. has been brought on record as Annexure A-2, which bears the date 19.09.2019. The said allotment letter refers the application of the Appellant dated 20.08.2019, which application has also been part of Annexure A-2. The allotment letter mentions the area o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , there is no receipt by the CD for the alleged cheque dated 01.09.2019 filed as Annexure A-1 at page 8 of the IA. 12. We also need to notice the reply, which was filed by the RP to the Application filed by the Appellant before the Adjudicating Authority. Copy of the reply filed by the RP has been brought on record as Annexure A-17, to Company Appeal (AT) (Ins.) No.2288 of 2024. The RP in reply to the Application in paragraphs 11, 12 and 14 pleaded following : "11. It is respectfully submitted that as per the application for allotment, which was executed on 19.09.2019, it was explicitly stated that at the time of booking of the unit, the applicant was required to make a payment of Rs 50,000/- as a booking money. As per the terms of the application the payment plan is stated to be as under: Date Particular Amount 29.08.2019 At the time of booking 50,000.00 On offer of possession 46,30,000.00 12. It is also noted from the records that as per clause 2.1 at page 26 of the application for allotment of unit in the project, the payment towards the booking of the unit was to be made in the bank account of the company in the following manner: Through A/c Payee cheque / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was paid by the applicant i.e., on 18.12.2019, which was after the initiation of CIRP proceeding against the Corporate Debtor." 14. The present is a case where IRP who was running the CD as a going concern under orders of this Tribunal, while going through the records of the CD, came to know about the units allotted to the Appellant(s). The RP found that allotments were claimed on 19.09.2019, on which date CIRP had already commenced and there was no authority in the CD, to make any allotment on 19.09.2019. When the CIRP has commenced on 19.09.2019, the jurisdiction of the Suspended Director clearly came to an end and no allotment letter could have been issued on 19.09.2019. The allotment, which is claimed on 19.09.2019 appeared to be unusual, since it was made without receiving any payment in the account of the CD and the payments were received in the account of the CD on 07.12.2019 to 15.01.2020 with regard to the Appellant(s) herein. In paragraph 13 of the reply, the RP has pleaded the following: "13. It is respectfully submitted that the alleged allotment letter in question was issued on the date when the CIRP was initiated against the Corporate Debtor, which makes the docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Company, I found your details from the records maintained by the company and have noticed the following concerns with regard to the allotment of unit no. E-2401 in your name in the project, RG Luxury Homes, situated at Plot No.GH-07 A, Sector 16 B, Greater Noida (U.P.): 1. You were allotted the said unit at the time when the company was undergoing CIRP and moratorium under Section 14 of Insolvency and Bankruptcy Code, 2016 (IBC) was imposed without any approval from the IRP. 2. The price at which the said unit has been allotted to your is undervalued. 3. Advance paid by you towards the allotment is only a small sum as a token amount and at this stage the payment made by you is not in accordance with the existing policies for fresh booking/ allotments. It is in view of the aforesaid facts and circumstances, the allotment stated to have been made in your name is not in accordance with law and as such cannot be treated as valid allotment. Therefore, the allotment of unit no.E2401 made in your name stands cancelled. Please provide your email id, contract number and bank details so the amount paid by you may be returned accordingly. Sd/ Manoj Kulshrestha Interim Reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in favour of the Appellant on 19.09.2019, the CIRP has commenced by the order of the same date. When CIRP has commenced on 19.09.2019, no allotment could have been made by Suspended Management in favour of the Appellant(s). More so, present is a case where payment of Rs.50,000/-towards allotment was paid by the Appellant(s) in December 2019 and January 2020, which is several months after the alleged allotment in their favour, without paying of any amount to the CD at the time of allotment. Without the payment, no allotment could have been made in favour of the Appellant(s). The facts, which have been brought on the record, makes it clear that Suspended Management has tried to unduly benefit the Appellant(s) by giving papers of allotment. The IRP has also in his reply stated that payments were to be made in the UP RERA account of Karnataka Bank, whereas payments claimed by the Appellant(s) were made in another account of different Bank. The facts, which have been brought on record, clearly indicate that present is a case where the allotment claimed by the Appellant(s) was non-est and void. The IRP did not commit any error in communicating the Appellant(s) that their allotment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment was invalidated in light of the fact that moratorium was initiated in accordance with section 14 of IBC, 2016 and the IRP was given control of the CD" 20. The submission of the Appellant is that allotments and payments made by the Appellant are reflected in records of the CD, hence, the allotment was actually made and could not have been declared invalid by the IRP. The materials on the record, including the letter of allotment dated 19.09.2019 in favour of the Appellant without any payment to the designated account, which payment according to the materials on record is claimed to be made only in December 2019 and January 2020, clearly prove that allotment made in favour of the Appellant(s) is non-est and without any authority. The Adjudicating Authority has considered all relevant facts and has rightly came to the conclusion that after enforcement of moratorium no allotment could have been made to the CD by Suspended Management in favour of the Appellant. Further, the payments as claimed by the Appellant(s) were made in December 2019 and January 2020, which itself indicate that allotment was only paper allotment, which was not in accordance with the conditions of allotment a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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