NCLAT (2025.12.12) in Surinder Arora Vs. Nilesh Sharma (RP) [(2025) ibclaw.in 1065 NCLAT, Company Appeal (AT) (Ins) No. 1529 of 2023] held that;-
“……However, we are of the view that the claim of those homebuyers, who could not file their claims, but whose claims were reflected in the record of the corporate debtor, ought to have been included in the information memorandum and resolution applicant, ought to have taken note of the said liabilities and should have appropriately dealt with them in the resolution plan. Non-consideration of such claims, which are reflected from the record, leads to inequitable and unfair resolution as is seen in the present case.
Excerpts of the Order;
The instant appeal has been preferred by the appellant, a Homebuyer of Dream Procon Pvt. Ltd. ( “Appellant”) who had purchased Apartment No.- 601 in Tower No.-B 2 of the Project – Victory Ace, Sector 143 Noida 201304 (“unit”), Under Section 60(5)(c) of the Insolvency and Bankruptcy Code, 2016 (“Code”) read with Rule 11 of the NCLAT Rules, 2016, being aggrieved by the impugned judgement dated 11.08.2023 (“impugned Judgment”) passed by the Ld. National Company Law Tribunal, New Delhi Bench at New Delhi (“Adjudicating Authority”) whereby the application bearing IA no. 3044/2021, moved by the appellant, in CP(IB)-1771/ND/2018, has been dismissed.
# 2. Brief facts necessary for the disposal of this appeal are that the Corporate Insolvency Resolution Process (CIRP) of Dream Procon Pvt. Ltd. (Corporate Debtor) commenced subsequent to the order dated 06.09.2019 passed by the Ld. Adjudicating Authority under Section 7 petition filed by Ms. Priyanshi Arora and Shri Manish Gupta was appointed as the Interim Resolution Professional. The Public Announcement was issued by the Interim Resolution Professional and the last date of submission of claims was fixed as 29.10.2019. The appellant submitted his claim on 09.06.2021 to the RP on his official E-mail Id and also claimed to have submitted the Claim Form to the Resolution Professional on June 10, 2021 by speed post. However, his claim was not admitted by the RP for being time barred and on moving an application to the Ld. Tribunal the same was also dismissed by passing impugned order, which is the subject matter of this appeal.
# 3. Ld. counsel for the appellant submits that appellant had purchased Apartment No.-601 in Tower No.-B- 2 of the Project Victory Ace Sector 143 Noida 201304 (“unit”) in resale from one Mr. Anoop Chaudhary and the Builder/Buyer Agreement dated 14.06.2014 along with the transfer documents of the said unit were taken by him and also that as on the date of commencement of the Insolvency Proceedings, the flat was/is in the name of the Appellant being the bonafide owner and creditor of the Corporate Debtor. The Appellant was a bonafide member of Victory Ace Social Welfare Society and was paying the membership fee on continuous basis.
# 4. It is further submitted that on 19th March 2021 the Appellant had received an e-mail from the Victory Ace Social Welfare Society and then he came to know about the Resolution process of the CD but due to the surge of COVID-19, the nationwide lockdown was imposed in the whole country on 15.03.2020 as well as in Uttar Pradesh and during the period of March to June 2021 he had suffered from Covid and couldn’t respond to the E-mail of the RP and couldn’t file the claim form with the Resolution Professional. However, in the month of June, after the end of the lockdown and recovery from COVID, the Appellant approached the Victory Ace Social Welfare Society but the calls made by the Appellant were not responded and the Appellant having no other option approached the RP via an E-mail dated 09.06.2021 and submitted the claim form to the RP on his official E-mail Id and also sent the Claim Form to the Resolution Professional, via speed post on June 10, 2021.
# 5. It is further submitted that vide E-mail Dated June 15,2021 the RP had not admitted the claim of the Appellant by giving the reason that the Resolution Plan submitted by the SRA (Respondent No.2) has been approved in the meeting of the Committee of Creditors (COC) dated 07.05.2021 and hence claim cannot be admitted as per the Insolvency and Bankruptcy Code and Regulations made therein and aggrieved by the non-acceptance of his claim by the RP, the Appellant moved an Application bearing IA No. 3044/2021 before the tribunal which has been dismissed by passing the impugned judgment.
# 6. Ld. counsel for the appellant further submits that the appellant could not filed the claim only on account the Covid-19 infection and also that there was nationwide lockdown imposed and later on his calls were not responded by the Association which later on also submitted a Resolution plan which has also been approved.
# 7. It is further submitted that the last claim of the CD was approved by the RP on 10.03.2021 which clearly shows that the claim has been approved, verified and accepted by the Resolution professional, even after the last date mentioned in the Public Announcement issued and by the same was not issued widespread and is not in consonance with the Section 13, 15 of the Code and Regulation 6 as well as 6A of the CIRP regulations, 2016 and the Resolution Professional without collating and verifying the claim rejected the claim of the appellant, which is against the provision of the code.
# 8. It is further submitted that the reply received by the Appellant clearly shows that the information with regard to the claim of the appellant was already in the knowledge of the Resolution Professional, which was evident from the documents attached with the reply and apart from the Appellant there are other 135 Allottees who could not file their claims as per the data provided by the Resolution Professional, hence non consideration of such claims can lead to inequitable and unfair resolutions and this differential treatment has been given to the homebuyers which are similarly placed in the books of the Corporate Debtor by dividing them in the category of claimant and non-claimant.
# 9. It is further submitted that the Resolution Professional was obliged to include the details of Homebuyers as reflected in the records of the Corporate Debtor, in the Information Memorandum, even though they have not filed their claim before the Resolution Professional within time, as per regulation 36 of the CIRP Regulations 2016 and the Resolution Applicant ought to have also dealt in Resolution Plan those Homebuyers, whose names and claims are reflected in the record of the Corporate Debtor, though they have not filed any claims and by not doing this a grave illegality has been committed by the RP which the Ld. Tribunal also failed to correct and rejected the Application on the basis of Puneet Kaur v. KV Developers Ltd. & Ors., on the wrong interpretation of the above-mentioned judgement and in not considering that the time line provided under regulation 12 CIRP is directory and not mandatory as has been held by Hon’ble Supreme Court Pioneer Urban Land and Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416.
# 10. It is further submitted that the tribunal has also failed to consider the law laid down by this Appellate Tribunal in Puneet Kaur v. KV Developers Pvt. Ltd and Ors., wherein it was, inter-alia observed that the rights and claims of homebuyers, whose names are reflected in the books of the Corporate Debtor (‘CD’) do not extinguish till the Resolution Plan is approved by the Adjudicating Authority (‘AA’), even if filed at a belated stage and it has also been settled that by the Hon’ble Supreme Court in the case of Ghanashyam Mishra and Sons Private Limited vs. Edelweiss Asset Reconstruction (2021) 9 SCC 657, that it is only after the Resolution Plan is approved by the Adjudicating Authority that all such claims not forming part of the Plan shall stand extinguished. Thus the impugned judgment be set aside and Respondents be directed to admit the claim filed by the Appellant and also include his name in the updated list of creditors.
# 11. Ld. Counsel for the Respondent No. 1/RP while drawing the attention of us towards the impugned judgment submits that the claim was preferred by the appellant after the stipulated period of time and therefore, the same has been rightly rejected by him as well as by Ld. Adjudicating Authority and the same is not required to be interfered with.
# 12. It is further submitted that no proper explanation of delay occurred in submission of claim by the appellant has been given and the appellant cannot be allowed to delay the entire CIRP Process as the plan submitted by the Successful Resolution Applicant (SRA) has been approved by the CoC with 90.66% voting share in its 11th meeting held on 07.05.2021 and is pending for approval before Ld. Adjudicating Authority.
# 13. It is further submitted that in terms of the provision contained in Regulation 36 (2) (a) and Regulation 36 (2) (1) of the CIRP Regulations, 2016 the respondent was only obliged to include the details of the assets and liabilities of the CD and he included the unit in question under the head of list of allottees who have not filed their claims. Attention of us has been drawn on the copy of IM dated 17.06.2020 which has also been enclosed as Annexure R-2 of the reply filed by the RP.
# 14. It is further submitted that unit in question of the appellant was duly reflected as the unit in respect of which no claim has been received in the aforesaid information memorandum. However, the RP is bound by the timelines provided under the Code and Regulations and cannot accept the claim after the prescribed time period.
# 15. It is also submitted that the first owner of the unit bearing no. B 2-601 was one Anoop Chaudhary who had booked it in 2014 with regard to which an allotment letter dated 14.04.2014 was duly issued by the CD and thereafter the unit was transferred to the appellant on 06.03.2018 and in lieu of the unit allotted, payments against the allotment along with membership fee was duly paid by the appellant to the CD till January, 2021.
# 16. It is also submitted that the appellant was having knowledge of the commencement of the CIRP against the CD but he did not remain vigilant and the appellant being a resident of Noida should have knowledge of all the details of the CD and he remain dormant for about three years.
# 17. It is further submitted that on the basis of the claims received the list of creditors was prepared by the RP and a list of those allottees was also prepared who had not filed their claims and the name of the appellant was included therein and the resolution plan submitted by the SRA could not be disturbed only for want of filing of claim by the appellant.
# 18. It is further submitted that by not filing the claim within the stipulated time and by approval of resolution plan by the CoC, the right, if any of the appellant has been extinguished. Reliance in this regard has been placed on the law laid down by Hon’ble Supreme Court in Civil Appeal no. 5590 of 2021 M/s RPS Infrastructure Ltd. vs. Mukul Kumar and Anr., as well as the law laid down by this appellate tribunal in CA (AT) (Ins) No. 799 of 2023, IDBI Bank Ltd. vs. Jalesh Kumar Grover and CA (AT) (Ins) No. 1172 of 2023, Millennium Construction Pvt. Ltd. vs. Rakesh Kumar Gupta (IRP).
# 19. It is further submitted that the Respondent cannot compel the Respondent to admit its claim only on the basis that his name was displayed in the list of allottees of project especially when the Resolution Plan of the SRA has been approved by the Ld. Tribunal and therefore the appellant is not entitled for any relief.
# 20. Ld. Counsel for the SRA/Respondent No. 2 submits that the appellant was himself ignorant and could not take the advantage of his own wrong as he without any explanation did not file the claim within the stipulated time framework.
# 21. It is further submitted that throughout the CIRP the office bearers and members of the Respondent (Victory Ace Social Welfare Society) has given widest coverage to the publication of Form A and also to the submission of claims by the homebuyers and for this purpose they have created multiple social media pages and accounts, however, the appellant himself did not file any claim within the stipulated timeline.
# 22. It is further submitted that the Form G was published by the resolution professional inviting prospective resolution applicants to submit their expression of interest and resolution plan and before that the information memorandum prepared by the RP contained a list of homebuyers who have not submitted their claims was prepared and their names were mentioned in the CRM data of the CD and the name of the appellant has appeared at S. No. 57 of the said list under the heading of the homebuyers who have not submitted claims and in the meantime the SRA has submitted the Resolution Plan which has also been approved by the CoC with 90.66% of vote and is pending for approval before Ld. Adjudicating authority for approval.
# 23. It is further submitted that the IA No. 3044 of 2021 has been rightly dismissed by the adjudicating authority as the claim by the appellant was preferred after the stipulated timeframe. Reliance in this regard has been placed on Pooja Mehra vs. Nilesh Sharma and Anr., CA (AT) (Ins) No. 1511 of 2023 judgment date 19.04.2024.
# 24. We have heard Ld. counsel for the parties and have perused the record and find that the Ld. Tribunal has rejected the application filed by the appellant on the ground that the plan has been approved by the COC. The relevant part of the impugned order is reproduced as under:
“2. It is admitted position that Committee of Creditors in its 11th meeting held on 07.05.2021 has approved the Resolution Plan by 90.66% votes. The Applicant herein filed the claim on 14.10.2021 after the approval of the Resolution Plan by the Committee of Creditors.
3. In the judgment passed by Hon’ble NCLAT in the case of Puneet Kaur versus M/s. K.V. Developers Private Limited Company Appeal (AT) (Insolvency) No. 390 of 2022 dated 01.06.2022, it has been held that claim filed after the approval of the Plan by the Committee of Creditors cannot be admitted.
4. In view of the above position of law as laid down by the Hon’ble NCLAT in the case of Puneet Kaur (supra) the claim of the present Applicant which has been filed belatedly after the approval of the Plan by the Committee of Creditors cannot be entertained or admitted.
5. It may further be noted that the Resolution Professional upon due verification of the Books of Account of the Corporate Debtor duly reflected the unit for which the present belated claim has been filed in the list of flats, but the Applicant did not file any claim.
6. IA is devoid of any merit and rejected.”
# 25. From the materials brought on the record following are the facts which are undisputed:
(i) The Appellant has purchased Apartment No.-601 in Tower No.-B- 2 of the Project Victory Ace Sector 143 Noida 201304 (“unit”) in resale from one Mr. Anoop Chaudhary and the first owner of this unit was one Anoop Chaudhary who had booked it in 2014 with regard to which an allotment letter dated 14.04.2014 was duly issued by the CD and thereafter the unit was transferred to the appellant on 06.03.2018 and in lieu of the unit allotted, payments against the allotment along with membership fee was duly paid by the appellant to the CD till January, 2021.
(ii) The appellant has filed his claim by submitting Form through Email to RP on 09.06.2021 on his official E-mail Id and also sent the Claim Form to the Resolution Professional, via speed post on June 10, 2021.
(iii) The unit in question of the appellant was included by the RP in the Information Memorandum dated 17.06.2020 under the head of list of allottees who have not filed their claims.
(iv) The RP did not admit the claim of the Appellant by giving the reason that the claim has not been presented within stipulated time and also that Resolution Plan submitted by the SRA (Respondent No.2) has been approved in the meeting of the Committee of Creditors (COC) dated 07.05.2021 and hence claim cannot be admitted as per the Insolvency and Bankruptcy Code and Regulations made therein.
(v) Appellants had filed applications bearing IA No. 3044 of 2021 before the Adjudicating Authority praying for admission of his belated claim which was rejected by passing of the impugned order.
(vi) The resolution plan passed by the CoC is pending for approval before the Ld. Tribunal, as an application IA No. 3250 of 2021 is stated to have been moved by the RP in this regard.
# 26. We notice that the Ld. Tribunal while rejecting the application moved by the appellant has cited the law propounded by this appellate tribunal in Puneet Kaur v. K.V. Developers Pvt. Ltd. & Ors., 2022 SCC Online NCLAT 245. It is reflected that in the facts of the Puneet Kaur the homebuyers could not file their claims within the time stipulated by the Resolution Professional for receiving of the claims and the Resolution Plan was also in the said case was approved by the CoC. In this scenario the Applications filed by the homebuyers were rejected by the Tribunal and against which the appeals were filed. The payments made by homebuyers were also reflected in the records of the CD and it was argued that it was the duty of the RP to have included these claims in the Information Memorandum and the Resolution Applicant should have taken note of the same. This appellate Tribunal in that case framed following four questions for consideration: –
“12. From the submissions of learned Counsel for the parties, following are the questions, which arise for consideration in these Appeal(s):
(1) Whether the Adjudicating Authority has rightly rejected the IAs filed by the Appellant(s) seeking direction to include their claims, which was belatedly filed?
(2) Whether after approval of the Resolution Plan on 20.07.2021 by CoC, the claim of the Appellant(s) stood extinguished?
(3) Whether the Resolution Professional was obliged to include the details of Homebuyers as reflected in the records of the Corporate Debtor in the Information Memorandum, even though they have not filed their claim before the Resolution Professional within time?
(4) Whether Resolution Applicant ought to have also dealt with Resolution Plan regarding Homebuyers, whose names and claims are reflected in the record of the Corporate Debtor, although they have not filed any claim?”
# 27. This appellate Tribunal with regard to the first question No.1 held that as law exists today, the appellants who have not filed their claims in time cannot be included in the List of Creditors and that too after approval of Plan by CoC. We, thus, do not find any ground to interfere with order of the Adjudicating Authority rejecting their Application for admission of their claim. However, their claims need to be dealt in a manner, which we shall deal in later part of this judgment. So far as second question is concerned this appellate Tribunal opined as under: –
“18. It is thus clear that extinguishment of claim of the Appellant(s) shall happen only after approval of the Plan by the Adjudicating Authority. The argument of the Respondents that since CoC has approved the Resolution Plan, the claim of the Appellant(s) have been extinguished, cannot be accepted as there is no extinguishment of claim of the Appellant(s) on approval of Plan by the CoC. Question No.(2) is answered accordingly.”
So far as question No. 3 and 4 are concerned, this appellate tribunal opined and concluded as under:
“27. In the present case there is no denial that details of the Appellant(s) and other Homebuyers, who could not file their claims has not been reflected in the Information Memorandum. There being no detail of claims of the Appellant(s), the Resolution Applicant could not have been taken any consideration of the claim of the Appellant(s), hence, Resolution Plan as submitted by Resolution Applicant cannot be faulted. However, we are of the view that the claim of those Homebuyers, who could not file their claims, but whose claims were reflected in the record of the Corporate Debtor, ought to have been included in the Information Memorandum and Resolution Applicant, ought to have been taken note of the said liabilities and should have appropriately dealt with them in the Resolution Plan. Non-consideration of such claims, which are reflected from the record, leads to inequitable and unfair resolution as is seen in the present case. To mitigate the hardship of the Appellant, we thus, are of the view that ends of justice would be met, if direction is issued to Resolution Professional to submit the details of Homebuyers, whose details are reflected in the records of the Corporate Debtor including their claims, to the Resolution Applicant, on the basis of which Resolution Applicant shall prepare an addendum to the Resolution Plan, which may be placed before the CoC for consideration. The above exercise be completed within a period of three months from today and the addendum along with minutes of the CoC be placed before the Adjudicating Authority at the time of approval of Resolution Plan, which is pending consideration before the Adjudicating Authority. The Resolution Applicant may also bring into the notice of the Adjudicating Authority the order of this date, so that the Adjudicating Authority may await the addendum and minutes of the CoC, which may be considered along with approval of the Resolution Plan. We thus, dispose of these Appeal(s) with following directions:
(1) The Resolution Professional shall provide all details of Homebuyers along with their claims as reflected from the record of the Corporate Debtor, who had not filed their claims, including the Appellant(s) to the Resolution Applicant within a period of one month from today.
(2) The Resolution Applicant shall prepare an addendum on the basis of information as submitted by Resolution Professional and place the same before the CoC within a further period of one month.
(3) The CoC shall consider the addendum in its meeting and decision of the CoC on the Information Memorandum and addendum be placed before the Adjudicating Authority. The CoC shall take decision in its meeting within a period of one month from the date of submission of addendum by the Resolution Applicant.
(4) The Adjudicating Authority while considering approval of the Resolution Plan, which is pending consideration in IA No.3447 of 2021 shall consider the addendum and the minutes of the CoC at the time of finalizing the Resolution Plan.
28. The Resolution Professional shall bring into the notice of the Adjudicating Authority, the order of this date, so as to enable the Adjudicating Authority to await the filing of addendum along with the minutes of the CoC.
29. The Appeal(s) are disposed of in view of the above terms. Parties shall bear their own costs.” (Emphasis Given)
# 28. The aforesaid Puneet Kaur (Supra) was quoted with authority in a recent judgment of this Appellate Tribunal in Ms. Reena v. Rabindra Kumar Mintri and Anr.,(2025) ibclaw.in 867 NCLAT, wherein another case of this Tribunal namely Rahul Jain vs. Nilesh Sharma, Resolution Professional of Dream Procon Pvt. Ltd.- Company Appeal (AT) (Insolvency) No.1662 of 2023 was considered in following words :-
“21. Counsel for the Appellant has placed reliance on a Three Member Bench Judgment of this Tribunal in “Rahul Jain vs. Nilesh Sharma, Resolution Professional of Dream Procon Pvt. Ltd.- Company Appeal (AT) (Insolvency) No.1662 of 2023” which was a case where the claim filed by the Appellant was rejected by the Resolution Professional to be accepted as having been filed beyond the time. Application filed by the homebuyers before the Adjudicating Authority being IA No.4954 of 2022 was rejected on 11.08.2023 against which order the appeal was filed. The case of the Appellant in Rahul Jain’s case was that he has been allotted units. The plan was approved by CoC on 07.05.2021 and the claim was filed with a delay of 980 days from the last date of submission of claim. The above fact has been noticed in paragraph 2 which is as follows: –
“2. One of the Home buyer in the aforesaid project, namely, Ms. Priyanshi Arora, as a Financial Creditor, filed an application under Section 7 before the Tribunal against the Corporate Debtor which was admitted on 06.09.2019. The Respondent No.2, namely, Victory Ace Social Welfare Society (Association of the Home buyers of the same project) submitted the resolution plan which was approved by the CoC on 07.05.2021. The appellant submitted his claim on Form CA to the RP on 19.09.2022 after a delay of 980 days from the last date of submission of claim and 492 days after the approval of the plan by the CoC. The claim of the appellant was rejected by the RP on same day i.e. 19.09.2022 which led to the filing of I.A. No. 4954 of 2022 before the Tribunal. The Tribunal dismissed the application observing that the plan was approved on 07.05.2021 in the 11th meeting of the CoC by 90.66% votes and the claim is highly belated.”
22. Submission was raised by the Appellant- Rahul Jain that the Appellant’s claim is reflected in the Information Memorandum and the payments of the amount of the Appellant is also reflected. The said submission has been noted in paragraphs 4 and 5 which is as follows: –
“4. Counsel for the appellant has argued that the asset of the appellant has been reflected in the Information Memorandum by the RP and has also drawn our attention to the list of unit holders who had not filed the claim in which name of the appellant is at Sl. No. 52 in which it is reflected that the selling price of the unit is Rs.60,00,300/-, the amount received by the Corporate Debtor is Rs.49,26,674/- and the balance amount is Rs. 10,73,626/-.
5. Counsel for the appellant has relied upon the same decision of this court in the case of Puneet Kaur & Ors. Vs. KV Developers Pvt. Ltd. & Ors. (supra) to contend that even if it is presumed that the appellant has not filed its claim even then this court has held that if the liability have been reflected in the Information memorandum then it is the duty of the RP to submit the detail of the Home buyers to the Resolution Applicant on the basis of which the Resolution Applicant shall prepare the resolution plan and place before the CoC for its consideration.”
23. This Tribunal after hearing the parties has held that the homebuyers through details reflected in the records of the Corporate Debtor are required to be considered and Resolution Applicant is to prepare an addendum in the Resolution Plan which may be placed before the CoC for consideration………
24. This Tribunal ultimately issued following direction in paragraph 17: –
“17. Thus, keeping in view the totality of circumstances, we are of the considered opinion that the controversy in hand is covered by the case of Puneet Kaur (Supra) and therefore, while allowing the present appeal and setting aside the impugned order, we direct the RP to submit the detail of the appellant reflected in the record of the CD including their claim to the resolution applicant on the basis of which the resolution applicant shall prepare an addendum to the resolution plan which may be placed before the CoC for consideration. The entire exercise should be completed within a period of three months from today and the addendum and the minutes of the CoC at the time of finalizing the resolution plan shall be considered by the AA at the time of the approval of the resolution plan which is pending consideration before the AA. The Resolution Professional may also bring to the notice of the AA, the order of this date, so that the AA may await the addendum alongwith the minutes of the CoC which may be considered alongwith the approval of the resolution plan.
Pending I.As, if any, are hereby closed.”
The above judgment fully supports the case of the Appellant of the instant case. In the present case also the payments made by the Appellant (His Predecessor) are duly reflected in the records of the Corporate Debtor and it has been categorically admitted by the RP in his reply filed before this Appellate Tribunal.
# 29. In the above mentioned case of Ms. Reena v. Rabindra Kumar Mintri and Anr. (Supra) it is also noted that above mentioned law propounded in Puneet Kaur (Supra) was also approved by the Hon’ble Supreme Court in “Amit Nehra & Anr. Vs. Pawan Kumar Garg & Ors.- Civil Appeal No.4296 of 2025” decided on 09.09.2025 , in following words:-
“28. Counsel for the Appellant has placed heavy reliance on the recent judgment of the Hon’ble Supreme Court in “Amit Nehra & Anr. Vs. Pawan Kumar Garg & Ors.- Civil Appeal No.4296 of 2025” decided on 09.09.2025. It is submitted that the Hon’ble Supreme Court in the above judgment has referred to the judgment of this Tribunal in “Puneet Kaur vs. M/s. K.V. Developers Private Limited” (supra). In the above case, the Appellant was also allotted residential unit in the year 2011 out of sale consideration of Rs.60,06,368/-. Appellant had paid Rs.57,56,684/-. Section 7 application was admitted on 17.10.2018. Claim was physically filed by the Appellant on 11.01.2019 and again submitted the claim by e- mail on 07.02.2020. The Resolution Plan by the CoC was approved on 23.08.2019 which was subsequently approved by NCLT on 01.06.2021. Application filed by the Appellant was rejected by NCLT and Appeal was also dismissed by this Tribunal. The Respondent in the case has relied on a clause 18.4 (xi) in Resolution Plan which provided refund of 50% principal amount. The Hon’ble Supreme Court allowed the Appeal and held that the claim which was resubmitted on 07.02.2020 and accepted by Resolution Professional, name of the Appellant being included in the list of creditors dated 30.04.2020, the claim could not have been rejected and the case of Appellant could not be held to be covered by Clause 18.4 (xi). The Hon’ble Supreme Court has noted the undisputed position in paragraph 32 which is as follows: –
“32. The admitted and undisputed position remains that the Appellants claim was resubmitted on 07.02.2020; that it was duly verified by the Resolution Professional; and that it was incorporated in the published list of creditors dated 30.04.2020. Once such verification and incorporation occurred, the claim acquired full legal recognition within the CIRP process.”
# 30. In paragraph 33 of the judgment, the Hon’ble Supreme Court has accepted the contention of Appellant- Amit Nehra relying on the judgment of this Tribunal in “Puneet Kaur vs. M/s. K.V. Developers Private Limited” (supra). In paragraph 33, following was held: –
“33. We are unable to countenance the approach of the NCLAT in brushing aside this admitted position, and in treating the Appellants as if they had not filed any claim at all. The publication of the list of financial creditors is an act in discharge of a statutory duty by the Resolution Professional. It cannot be reduced to a meaningless formality. Learned Counsel for the Appellants has rightly placed reliance on Puneet Kaur v. K.V. Developers Pvt. Ltd. & Ors., 2022 SCC Online NCLAT 245, wherein it was observed as follows:
“……However, we are of the view that the claim of those homebuyers, who could not file their claims, but whose claims were reflected in the record of the corporate debtor, ought to have been included in the information memorandum and resolution applicant, ought to have taken note of the said liabilities and should have appropriately dealt with them in the resolution plan. Non-consideration of such claims, which are reflected from the record, leads to inequitable and unfair resolution as is seen in the present case. To mitigate the hardship of the appellant, we thus, are of the view that ends of justice would be met, if direction is issued to the resolution professional to submit the details of homebuyers, whose details are reflected in the records of the corporate debtor including their claims, to the resolution applicant, on the basis of which the resolution applicant shall prepare an addendum to the resolution plan, which may be placed before the committee of creditors for consideration…..”
In this backdrop, the Resolution Professional rightly admitted the claim of the Appellants to the extent of Rs. 57,56,684/- and reflected it at Serial No. 636 in the list of financial creditors.”
# 31. The Hon’ble Supreme Court also held that the case of the Appellant which was verified and admitted by the Resolution Professional cannot be held to be covered by Clause 18.4(xi) which provided for refund. Following was held in paragraphs 35, 36 & 37: –
“35. The Appellants case, on admitted facts, does not fall within Clause 18.4(xi). Their claim was filed, verified, and informed to the Successful Resolution Applicant, as is evidenced by the entry at Serial No. 636 in the list of creditors dated 30.04.2020, admitting their claim to the extent of Rs. 57,56,684/. Once so admitted, their case squarely falls within Clause 18.4(ii) read with Clause 18.4(vi)(a) of the Resolution Plan.
36. The Respondent(s) reliance on Clause 18.4(xi) is misconceived. That clause is intended to apply only to allottees who had defaulted in filing or pursuing their claims. The Appellants cannot be so characterised, having paid nearly the entire consideration, submitted their claim, and had it duly verified and admitted by the Resolution Professional.
37. What is critical to note is that this is not a case of entertaining a fresh claim beyond the Resolution Plan. It concerns an allottee whose claim was verified and admitted by the Resolution Professional and reflected in the list of financial creditors well before approval of the Plan by the Adjudicating Authority. To disregard such an admitted claim and confine the Appellants to the limited benefit under Clause 18.4(xi) is not to preserve the binding effect of the plan but to misapply it. Clause 18.4 itself draws a clear distinction between verified claims and belated or unverified claims; to obliterate that distinction would render the scheme otiose. Relegating bona fide allottees, who have paid substantial consideration years in advance, to the status of mere refund claimants runs contrary to the very object of the legislative framework.”
# 32. The Hon’ble Supreme Court in the above case has held that relegating bona fide allottees, who have paid substantial consideration years in advance, to the status of mere refund claimants runs contrary to the very object of the legislative framework. The Hon’ble Supreme Court in the above case allowed the appeal, set aside the order of the NCLT and NCLAT and directed for execution of conveyance deed. The above judgment of the Hon’ble Supreme Court fully supports the submission raised by Counsel for the Appellant.
# 33. In the aforesaid case of Ms. Reena v. Rabindra Kumar Mintri and Anr., (Supra) and in the case of RPS Infrastructure Ltd. vs. Mukul Kumar & Anr.- (2023) 10 SCC 718, whereon the reliance has been placed by Ld. counsel for SRA has also been distinguished as under :-
“32. Learned Counsel for the SRA has placed reliance on judgment of the Hon’ble Supreme Court in “RPS Infrastructure Ltd. vs. Mukul Kumar & Anr.- (2023) 10 SCC 718” in support of his submission that Resolution Applicant cannot be saddled with new claims. Hon’ble Supreme Court in the above case made following observations in paragraph 21 to 23: –
“21. The second question is whether the delay in the filing of claim by the appellant ought to have been condoned by Respondent 1. The IBC is a time bound process. There are, of course, certain circumstances in which the time can be increased. The question is whether the present case would fall within those parameters. The delay on the part of the appellant is of 287 days. The appellant is a commercial entity. That they were litigating against the corporate debtor is an undoubted fact. We believe that the appellant ought to have been vigilant enough in the aforesaid circumstances to find out whether the corporate debtor was undergoing CIRP. The appellant has been deficient on this aspect. The result, of course, is that the appellant to an extent has been left high and dry.
22. Section 15 IBC and Regulation 6 of the IBBI Regulations mandate a public announcement of the CIRP through newspapers. This would constitute deemed knowledge on the appellant. In any case, their plea of not being aware of newspaper pronouncements is not one which should be available to a commercial party.
23. The mere fact that the adjudicating authority has yet not approved the plan does not imply that the plan can go back and forth, thereby making the CIRP an endless process. This would result in the reopening of the whole issue, particularly as there may be other similar persons who may jump onto the bandwagon. As described above, in Essar Steel [Essar Steel (India) Ltd. (CoC) v. Satish Kumar Gupta, (2020) 8 SCC 531: (2021) 2 SCC (Civ) 443], the Court cautioned against allowing claims after the resolution plan has been accepted by the COC.”
“33. There are two distinguishing feature of the present case with the case of RPS Infrastructure (supra). The RPS Infrastructure (supra) was litigating with the Corporate Debtor even before start of CIRP hence, Supreme Court observed that they ought to have been vigilant and the RPS Infrastructure (supra) was a commercial entity. In the present case, we are concern with case or homebuyers whose allotments and payments are duly reflected in the books of accounts and record of Corporate Debtor”.
# 34. Having regard to the reasons mentioned above and the law laid down in Puneet Kaur (Supra) as approved by Hon’ble Supreme Court in Amit Nehra (Supra) and aforesaid law of this Appellate Tribunal in Reena (Supra) the judgment of the Adjudicating Authority rejecting application of the appellant cannot be sustained. Appellant has made out a case for treatment of his claim in the Resolution Plan as per the details which were included by the Resolution Professional in the information Memorandum. In result the Appeal filed by the Appellant is allowed in following terms: –
(i) The order dated 11.08.2023 passed by the Adjudicating Authority in IA no. 3044/2021, moved by the appellant, in CP(IB)-1771/ND/2018 is, hereby, set aside and IA no. 3044/2021 filed by the Appellant is allowed to the extent that the claim of the Appellant as reflected in the Information Memorandum prepared by the Resolution Professional need to be dealt with by the Resolution Applicant in the Resolution Plan.
(ii) We direct the RP to submit the detail of the appellant reflected in the record of the CD including their claim to the resolution applicant on the basis of which the resolution applicant shall prepare an addendum to the resolution plan which may be placed before the CoC for consideration. The entire exercise should be completed within a period of three months from today and the addendum and the minutes of the CoC at the time of finalizing the resolution plan shall be considered by the Adjudicating Authority at the time of the approval of the resolution plan which is pending consideration before the Adjudicating Authority.
(iii) The Resolution Professional may also bring to the notice of the Adjudicating Authority, this order, so that the Adjudicating Authority may await the addendum along with the minutes of the CoC which may be considered along with the approval of the resolution plan.
# 35. Parties shall bear their own costs. Pending IA’s if any, is also disposed of.
----------------------------------------------------------------
No comments:
Post a Comment