Devashree Developers Pvt. Ltd. & Ors. Vs. Aravali Cylinders Pvt. Ltd. - Section 65 provides that if any person initiates the Insolvency Resolution Process or liquidation proceedings fraudulently or with malicious intend for any purpose other than for resolution of Insolvency or Liquidation, the Adjudicating Authority may impose upon such person a penalty.

 NCLAT (2024.08.05) in Devashree Developers Pvt. Ltd. & Ors. Vs. Aravali Cylinders Pvt. Ltd.. [Comp. App. (AT) (Ins) No. 1406 of 2023 & I.A. No. 5032 of 2023] held that

• It is hereby held that in case where application is filed under Section 65 of the Code, it would be maintainable after the application is filed either under Section 7, 9 or 10 of the Code.

• Section 65 provides that if any person initiates the Insolvency Resolution Process or liquidation proceedings fraudulently or with malicious intend for any purpose other than for resolution of Insolvency or Liquidation, the Adjudicating Authority may impose upon such person a penalty.

• Section 65 provides that where any person furnishes any information under Section 7, which is false in material particulars, knowing it to be false or omits any material facts, knowing it to be material such person shall be punished with fine.”

Excerpts of the Order;

05.08.2024: 

Comp. App. (AT) (Ins) No. 1406 of 2023 This appeal is directed against the order dated 29.08.2023 by which an application filed under Section 7 of the Code by the Appellant for the resolution of its amount of Rs. 2,31,00,000/- has  been dismissed without the arguments having been addressed on the aforesaid application.

# 2. Mr. Ankur Mahindra, Counsel appearing on behalf of the Respondent has not denied this fact.

# 3. In view of the aforesaid facts and circumstances, since the Tribunal has not followed the basic principle that nobody should be condemned without hearing, therefore, in our considered opinion, the impugned order deserves to be set aside and be remanded back to take a decision on the application in accordance with law after hearing both the parties and passing a speaking order.

# 4. Consequently, the present appeal is allowed and the impugned order is set aside. CP (IB) No. 267 of 2021 is hereby restored and the matter is remanded back to the Tribunal. The parties are directed to appear before the Tribunal on 02nd September, 2024. The Tribunal is directed to hear both the parties and decide the application in accordance with law as early as possible. It is however clarified that while disposing of this appeal, we have not entered upon the merits of the case and thus no observation has been made. 

Comp. App. (AT) (Ins) No. 1430 of 2023

This appeal is directed against the order dated 29.08.2023 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi) by which an application jointly filed by Leelawati Mahipal and Sanjay Mahipal, shareholder of Aravali Cylinders Pvt. Ltd. (Corporate Debtor) under Section 60(5), 65 and 75 of the Code has been dismissed on the ground that the application has been filed before the admission of the application filed under Section 7 of the Code.

# 2. Counsel for the Appellant has submitted that the Tribunal has committed a patent error in dismissing the application only on the ground that it has been filed before the admission of application under Section 7 which is contrary to the law laid down by the Hon’ble Supreme Court and this Court in various judgments.

# 3. In this regard, he has relied upon a decision of the Hon’ble Supreme Court rendered in the case of Beacon Trusteeship Limited Vs. Earthcon Infracon Pvt. Ltd. & Anr., 2020 SCC OnLine SC 1233 and referred to Paras 7 and 8 which read as under:-

• “7. Considering the provision of Section 65 of the IBC, it is necessary for the Adjudicating Authority in case such an allegation is raised to go into the same. In case, such an objection is raised or application is filed before the Adjudicating Authority, obviously, it has to be dealt with in accordance with law. The plea of collusion could not have been raised for the first time in the appeal before the  NCLAT or before this Court in this appeal. Thus, we relegate the appellant to the remedy before the Adjudicating Authority.

• 8. In case, a proper application is filed, aspect whether the proceedings have been initiated in collusive manner will be looked into, in accordance with law and the appropriate orders have to be passed, considering the facts and circumstances of the case. We have made it clear that we have not commented on the merit of the case. We set aside the impugned order passed by the NCLAT and dispose of the appeal in accordance with the aforesaid direction.”

# 4. He has also relied upon a decision of this Court rendered in the case of Ashmeet Singh Bhatia Vs. Sundrm Consultants Pvt. ltd. & Anr., 2023 SCC OnLine NCLAT 1423 which is also on the issue of application filed under Section 65 in case filed under Section 7 and referred to para 12, 13, 14, 16 & 18 which read as under:-

• “12. The issue involved in this case is as to whether an application filed under Section 65 of the Code is maintainable after the filing of the application under Section 7, 9 or 10 of the Code or could be maintainable only after the admission of such an application? 

• 13. As a matter of fact, the Learned Tribunal has taken a decision, while interpreting Section 65 of the Code, that the application under Section 65 of the Code would be maintainable only once the application under Section 7, 9 or 10 is admitted and the CIRP is initiated. However, in our considered opinion the view taken by the Learned Tribunal is totally erroneous as it has not looked into the basic provisions much less the definitions provided under Section 5(11) and 5(12) of the Code and has been unnecessarily influenced with the word “initiates” used under Section 65 to observe that it would mean that when the CIRP is initiated i.e. after the admission. “

• 14. In this respect, regard may be had to the decision of the Hon’ble Supreme Court in the case of Ramesh Kymal (Supra) in which the Hon’ble Supreme Court has held that the date of initiation of CIRP is the date on which the Financial Creditor, Operational Creditor or Corporate Applicant makes an application with the Adjudicating Authority for the initiation of the process and the insolvency commencement date is the date of the admission of the application.

• 16. Thus, in view of the aforesaid discussion, the question posed herein before, is answered in favour of the Appellant and against the Respondents. It is hereby held that in case where application is filed under Section 65 of the Code, it would be maintainable after the application is filed either under Section 7, 9 or 10 of the Code. 18. As far as, the objection of the Respondents in regard to the locus standi of the Appellant for filing such an application under Section 65 of the Code is concerned, the said issue shall be decided by the Tribunal after taking into consideration the objection raised or to be raised by the Respondent and after giving due opportunity to the Appellant/Applicant.”

# 5. He has further relied upon a decision of this Court rendered in the case of Shree Ambica Rice Mill Vs. Kaneri Agro Industries Ltd., 2021 SCC Online NCLAT 599 and referred to para 19 which read as under:-

• “19. Thus, it is clear that the Adjudicating Authority is obliged to investigate the nature of the transaction and should be very cautious in admitting the Application in order to prevent taking undue benefit of provisions of IBC to detriment of the rights of legitimate creditors as well as to protect the Corporate Debtor from being dragged into CIRP with malafide. Section 65 provides that if any person initiates the Insolvency Resolution Process or liquidation proceedings fraudulently or with malicious intend for any purpose other than for resolution of Insolvency or Liquidation, the Adjudicating Authority may impose upon such person a penalty. Section 65 provides that where any person furnishes any information under Section 7, which is false in material particulars, knowing it to be false or omits any material facts, knowing it to be material such person shall be punished with fine.”

# 6. Counsel for the Respondent (FC) has though reiterated the stand taken by it before the Tribunal.

# 7. We have heard Counsel for the parties and perused the record.

# 8. The issue involved in this case is as to at what stage the application under Section 65 is maintainable.

# 9. The answer of this question is not farfetched because of the decisions in the cases of Beacon Trusteeship Limited (Supra), Ashmeet Singh Bhatia (Supra) and Shree Ambica Rice Mill (Supra). In the case of Beacon Trusteeship Limited (Supra) the Hon’ble Supreme Court has held that “The plea of collusion could not have been raised for the first time in the appeal before the NCLAT or before this Court in this appeal. Thus, we relegate the appellant to the remedy before the Adjudicating Authority”.

# 10. In the case of Ashmeet Singh Bhatia (Supra) a specific question was framed in para 12 that “as to whether an application filed under Section 65 of the Code is maintainable after the filing of the application under Section 7, 9 or 10 of the Code or could be maintainable only after the admission of such an application?

# 11. The answer to the aforesaid question is captured in para 16 where this order as this Court has held that the application filed under Section 65 of the Code is maintainable after the application is filed either under Section 7, 9 or 10 of the Code and not after the admission.

# 12. Thus, in view of the aforesaid discussion and law laid down by the Hon’ble Supreme Court and this court dismissal of the application by the Tribunal only on this ground that the application has been filed before the admission of the application under Section 7 is not sustainable.

# 13. Accordingly, the appeal is allowed and the impugned order is set aside. The application bearing 1120 of 2022 dismissed by the impugned order is restored and the matter is remanded back to the Tribunal to decide the aforesaid application in accordance with law. At this stage, Mr. Sumesh Dhawan, Counsel for the Respondent (FC) has also raised an objection about the locus of the intervenor and submitted that the same may be kept open before the Tribunal to decide the same. We order accordingly. However, it is made clear that while deciding this appeal, we have not entered upon the merit of the case and have only decided the issue of law involved therein. The Tribunal is directed to list the aforesaid application alongwith the main petition i.e CP (IB) No. 267 of 2021 which has been remanded today by a separate order. 

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Sidharth Bharatbhushan Jain and Ors. Vs. State Bank of India and Ors. - In other words, for a preference to become an avoidable one, it ought to have been given within the period specified in sub-section (4) of Section 43.

 NCLAT (2024.10.14) in Sidharth Bharatbhushan Jain and Ors. Vs. State Bank of India and Ors. [(2024) ibclaw.in 645 NCLAT, Company Appeal (AT)(Ins) No. 242 of 2024] held that

• For a preference to become an offending one for the purpose of Section 43 of the Code, another essential and rather prime requirement is to be satisfied that such event, of giving preference, ought to have happened within and during the specified time, referred to as “relevant time”

• In other words, for a transaction to fall within the mischief sought to be remedied by Sections 43 and 44 of the Code, it ought to be a preferential one answering to the requirements of sub-section (2) of Section 43; and the preference ought to have been given at a relevant time, as specified in sub-section (4) of Section 43.

• In other words, for a preference to become an avoidable one, it ought to have been given within the period specified in sub-section (4) of Section 43.

Excerpts of the Order;

This appeal is against an impugned order dated 09.11.2023 whereby an application filed under Section 43 of the Code was allowed by the Ld. NCLT. The Learned counsel for the appellant submits the Corporate Debtor had supplied certain goods to M/s Pratap Associates, an HUF firm of Appellant No.3 herein and hence a related party. Such goods were supplied before 23.05.2018 and the amount outstanding against Pratap Associates as on 23.05.2018 was of Rs.7,78,31,555/-. M/s Pratap Associates (HUF) could not pay this outstanding to Corporate Debtor. .

# 2. On 8th September, 2021, M/s Sysco Industries Ltd, the Corporate Debtor, went into CIRP and thus look back period under Section 43 of Code commenced w.e.f. 8th September, 2019.

# 3. Admittedly the application under Section 43 of the Code was filed per minutes of 4th COC Meeting dated 14.12.2021 wherein Agenda Item No.7 read as under:-

• Agenda 7: To file an application under Section 43 and Section 65 separately.

• RP informed the COC Members that presently there is procedure of filing the application under Section 43 and Section 65 separately. Also increasing the lookup period is required as the company was not operating since 2079 i.e., more than 2 years before the CIRP commencement date. After a detailed discussion, it was decided and COC approved to file the application under section 43 and section 66 of IBC Finally, it was decided for adding prayer in the application for extension in look-up period of 5 years than only 2 years. COC also agreed the fees for the advocate.

# 4. Following prayers were made in application filed under Section 43 of the Code:

• a) That this Hon’ble Adjudicating Authority may be pleased to allow enhancement of period specified in Section 46 for a period of 5 years since financials data is only made available until financial year ending March, 2019, in the interest of justice;

• b) That this Hon’ble Adjudicating Authority may be pleased to pass appropriate orders or directions under Section 43 of the code against the respondents to contribute an amount of Rs.7,78,31,555/- being outstanding towards related party, in the interest of justice.

# 5. Now, section 43 of the Code read as under:-

• (4)A preference shall be deemed to be given at a relevant time} if-

• (a) it is given to a related party (other than by reason only of being an employee)} during the period of two years preceding the insolvency commencement date; or

• (b) a preference is given to a person other than a related party during the period of one year preceding the insolvency commencement date.

# 6. The Ld. NCLT on this application under Section 43 of the Code had passed the following impugned order:-

• 17. The said section refers to property which has very wide meaning and in our view includes goods. The respondent has admitted that goods were supplied by the CD and the outstanding of Rs. 7.78 crores are not denied. The Respondents have not denied that M/ s Pratap Associates is his HUF which is related party.

• 18. It is common practice that before commencement of insolvency, the assets of the corporate debtor are stripped many a times by the management. The suspended management conceals the data from the RP during the CIRP process. In the present matter too S. 19 (2) application was filed by the RP.

• 19. The present case falls squarely within the ambit of S. 43 of the Code so far as transactions with Pratap Associates is concerned. As such we have no hesitation to hold that transactions are hit by provisions of S.43 of the Code.

• 20. In terms of the above observations prayers (a) and (b) are hereby allowed. R-1 to R-3 are directed to deposit the said amount of Rs. 7.78 Crores within a period of 15 days from the date of the order with the Corporate Debtor who in turn should distribute the same to the erstwhile members of COC immediately in their respective share.

• 21. As regards the transactions with the 3 debtors, the same are transactions in the ordinary course of business of the ·Corporate Debtor and as the debtors were not made a party before us and without hearing them no orders can be passed and for the reasons stated above we hold that S. 43 is not attracted upon the respondents in the matter. Accordingly prayer (c) is denied.

# 7. It is the submission of the learned counsel for the appellant such prayers ought not to have been allowed as there cannot be an extension of look back period beyond two years as is envisaged in sub-section (4) of Section 43 of the Code. 

Heard.

# 8. In Anuj Jain, Interim Resolution Professional for Jaypee Infratech Ltd Vs Axis Bank Ltd and Others, (2020) 8 Supreme Court Cases 491, the Hon’ble Supreme Court held as follows:-

• 21.2 However, merely giving of the preference and putting the beneficiary in a better position is not enough. For a preference to become an offending one for the purpose of Section 43 of the Code, another essential and rather prime requirement is to be satisfied that such event, of giving preference, ought to have happened within and during the specified time, referred to as “relevant time”. The relevant time is reckoned, as per sub-section (4) of Section 43 of the Code, in two ways:

• (a) if the preference is given to a related party (other than an employee), the relevant time is a period of two years preceding the insolvency commencement date; and (b) if the preference is given to a person other than a related party, the relevant time is a period of one year preceding such commencement date. In other words, for a transaction to fall within the mischief sought to be remedied by Sections 43 and 44 of the Code, it ought to be a preferential one answering to the requirements of sub-section (2) of Section 43; and the preference ought to have been given at a relevant time, as specified in sub-section (4) of Section 43.

• 26. Even when all the requirements of sub-section (2) of Section 43 of the Code are satisfied, in order to fall within the mischief sought to be remedied by Section 43, the questioned preference ought to have been given at a relevant time. In other words, for a preference to become an avoidable one, it ought to have been given within the period specified in sub-section (4) of Section 43. The extent of ‘relevant time’ is different with reference to the relationship of the beneficiary with the corporate debtor inasmuch as, for the persons falling within the expression ‘related party’ within the meaning of Section 5 (24) of the Code, such period is of two years before the insolvency commencement date whereas it is one year in relation to the person other than a related party. The conceptions of, and rationale behind, such provisions could be noticed in the excerpts from the interim report of Law Reforms Committee, as referred on behalf of the appellants. We may usefully extract the same as under: –

# 9. Thus for reasons aforesaid, the outstanding being of more than 2 years prior to CIRP commencement date, the relief under Section 43 of the Code would not be available. The respondent, however, shall be at liberty to take alternative action(s) as may be allowed under the Law (inclusive of Section 66 of the Code)

# 10. In the circumstances we set aside the impugned order passed by Ld. NCLT, with liberty aforesaid.

# 11. The appeal is disposed of in terms of above. Pending applications, if any, are also closed.

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Mr. Dinesh Kumar Deora - We are, therefore, of the considered view that the re-settlers should be reclassified from ‘other creditors’ to ‘secured other creditors’ and the homebuyers from ‘unsecured financial creditors’ to ‘secured financial creditors’

 NCLT Mumbai-VI (2024.10.14) Mr. Dinesh Kumar Deora  [IA (I.B.C) No. 3383/MB/2024 and IA (I.B.C) No. 3384/MB/2024 in CP (IB) No. 1046/MB/2023] held that

• “security interest” to mean “right, title or interest or a claim to property, created in favour of, or provided for a secured creditor by a transaction which secures payment or performance of an obligation and includes mortgage, charge, hypothecation, assignment and encumbrance or any other agreement or arrangement securing payment or performance of any obligation of any person:...”

• We hold that the re-settlers are to be classified as ‘secured other creditors’ since they had given the CD redevelopment rights in lands and buildings in lieu of specific flats as they can neither be considered as financial creditors nor operational creditors under the IBC. 

• We are, therefore, of the considered view that the re-settlers should be reclassified from ‘other creditors’ to ‘secured other creditors’ and the homebuyers from ‘unsecured financial creditors’ to ‘secured financial creditors’

Excerpts of the Order;

# 1. BACKGROUND

1.1 The Original Financial Creditors (FCs) constituting 67 homebuyers, had filed the C.P. (IB) No. 1046/MB/2023 on 18.08.2023 against the Corporate Debtor (CD) under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) for default of more than One Crore Rupees, and thus, this Bench admitted the CD into Corporate Insolvency Resolution Process (CIRP) vide order dated 07.03.2024 and Mr. Dinesh Kumar Deora was appointed as Resolution Professional (RP), the Applicant herein for conducting CIRP.

1.2 The above IAs have been filed under Section 60(5) of IBC read with Rule 11 of the National Company Law Tribunal Rules, 2016 (NCLT Rules) by the RP seeking our approval to classify the re-settlers, in the residential project CTS No. 475 (Part), (Project O2) at Kurla III, Chunabhatti Swadeshi Mills Compound, Chembur Road, Mumbai – 400022, as ‘Secured Other Creditors’ and the homebuyers as ‘Secured Financial Creditors’. No re-settler or homebuyer has received possession of flats despite multiple RERA deadlines, hence the CP.

1.3 The CD vide development agreements dated 25.10.2013 and15.02.2014, undertook to develop Project O2 by 30.06.2023, after multiple extensions, but failed to do so even on that date. The Applicant/RP submits that as per the books of the CD and the claims received by him, the number of re-settlers as on date is 280.

1.4 The re-settlers have filed claims to the Applicant/RP in Form F, as none of them received possession of their flats, the corpus amount is unpaid and the monthly rent is also due for over 12 months before initiation of CIRP. The Applicant/RP further states that the number of units sold to the home buyers/sale unit holders as per the books of the CD is 297 and a balance of 13 flats is available for sale/reserved against the claim of re-settlers. Currently, the Committee of Creditors (CoC) in the CIRP comprises only of homebuyers in Project O2 and no other creditors.

1.5 In the present Application, the Applicant/RP sought approval to reclassify the nature of debt of the re-settlers as ‘Secured’ from ‘Unsecured’ under the category of ‘Other Creditors’ and homebuyers as ‘Secured’ from ‘Unsecured’ under the category of ‘Financial Creditors’.

# 2. CONTENTIONS OF APPLICANT

2.1 The Applicant/RP states that it is a well-settled law that homebuyers are to be treated as financial creditors and are covered under the definition of ‘allottee’ within the meaning of Section 5(8)(f) of the IBC.

2.2 The Applicant/RP submits that he gave the undertaking to reconsider the classification of the homebuyers as ‘Secured Financial Creditors’ and the re-settlers as ‘Secured Other Creditors’ along with passing the appropriate resolution for recognizing and providing equal status to both by the Committee of Creditors (CoC) of the CD as per our order dated 04.07.2024.

2.3 In the 4th CoC meeting on 15.07.2024, the CoC voted with 100% votes to recognise the homebuyers as ‘Secured Financial Creditors’ and the re-settlers as ‘Secured Other Creditors’. The homebuyers were represented by the Authorised Representative (AR), Mr. Manish Dawda in the said meeting.

2.4 The Applicant/RP also submits that the reclassification is supported by a conjoint reading of Section 3(30) and 3(31) of IBC, pertaining to ‘secured creditor’ and ‘security interest’ respectively, which has been created as there is a claim to a specific property. The performance of the obligation to deliver specific units to the re-settlers has been created upon execution of the development agreement, which is equivalent to the obligation to deliver possession for flats wherein the consideration in the form of development rights has been paid by them; and the possession of specific units to the homebuyers has been created upon payment of consideration value. Hence, he submits that it is lawful to consider the re-settlers as ‘Secured Other Creditors’.

# 3. ANALYSIS AND FINDINGS

3.1 We have perused all the documents and pleadings and heard the Ld. Counsel for the Applicant/RP.

3.2 The Applicant/RP filed IA 3383/MB/2024 praying for re-classification of the nature of debt of re-settlers from “Other Creditors” to “Secured Other Creditors” and IA 3384/MB/2024 for re-classifying the nature of homebuyers from “Unsecured Financial Creditors” to “Secured Financial Creditors”.

3.3 After this Tribunal’s order dated 04.07.2024, the Applicant/RP conducted the 4th CoC meeting on 15.07.2024 to reconsider the classification and pass appropriate resolution recognising, allowing, and providing equal rights and status to both sets of individuals viz., homebuyers and re-settlers, as regards their claims.

3.4 We have perused the registered development agreement between the developer and the society of re-settlers, wherein specific house units have been assigned to them in Project O2. Further, it has been recorded in the books of account of the CD as regards their specific allotments of housing units. Moreover, a Bank Guarantee for the area under development in the new building is also made available for re-settling. These are also reflected on the books of account of the CD. 

3.5 Further, some of the sale unit holders have also obtained loan facilities against their respective sale units and mortgaged to the lender, indicating creation of security interest.

3.6 As both homebuyers and re-settlers have specific units against their names, the Applicant/RP proposed that they be treated as 'secured' financial creditors and ‘secured’ other creditors respectively.

3.7 The CoC in its 4th meeting voted 100% in favour of the resolution over recognising the status of the homebuyers and the re-settlers as ‘Secured Financial Creditors’ and ‘Secured Other Creditors’ respectively. The Applicant/RP in the said meeting cited the case of State Tax Officer (1) Vs. Rainbow Papers Ltd., [2022 SCC Online SC 1162] wherein the Hon’ble Supreme Court allowed the Appellant-State Tax Officer to claim the status of a secured operational creditor, premised on Section 48 of the GVAT Act – allowing a security interest over the property towards unpaid dues.

3.8 From the development agreements, it is clear that the parties have entered into certain specific objective of redevelopment of the land and buildings and to secure housing units to the re-settlers, among others. Hence, there cannot be operational debt within the meaning of Section 5(21) of the IBC. The re-settlers can also not be considered as financial creditors, as the debt does not fall within the ambit of financial debt under Section 5(8) of the IBC since there is no financial debt against consideration for the time value of money. The Hon’ble NCLAT, Principal Bench, New Delhi in Ashoka Hi-Tech Builders Private Limited Vs. Sanjay Kundra & Anr., [Company Appeal (AT) (Ins) No. 46/2023] considered the issue relating to a similar matter.

3.9 However, Section 3(31) of the IBC defines “security interest” to mean “right, title or interest or a claim to property, created in favour of, or provided for a secured creditor by a transaction which secures payment or performance of an obligation and includes mortgage, charge, hypothecation, assignment and encumbrance or any other agreement or arrangement securing payment or performance of any obligation of any person:...” (Emphasis Supplied). The Maharashtra Housing and Area Development Authority (MHADA) has ensured that the rights of resettlers are preserved and also recognised their claim to the property in which redevelopment is under taken by the CD. The CD had obtained all permissions and no objection certificates from MHADA for redevelopment. The society for the re-settlers have entered into development agreement with the CD for development of the property in which the re-settlers have secured performance of certain obligations by the CD such as construction and handing over individual flats to the re-settlers. The objective of the re-settlers in entering into the redevelopment agreement was development of O2 Project and enjoying the benefits therefrom. All these measures are to prevent any suffering by the re-settlers during the redevelopment process.

3.10 In light of the above, we hold that the re-settlers are to be classified as ‘secured other creditors’ since they had given the CD redevelopment rights in lands and buildings in lieu of specific flats as they can neither be considered as financial creditors nor operational creditors under the IBC. We are, therefore, of the considered view that the re-settlers should be reclassified from ‘other creditors’ to ‘secured other creditors’ and the homebuyers from ‘unsecured financial creditors’ to ‘secured financial creditors’.

3.11 Accordingly, I.A.- 3383/2024 and I.A.- 3383/2024 are allowed and disposed of.

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