National Company Law Appellate Tribunal
Ashwani Kumar Kaura vs Devendra Umrao Resolution ... on 22 March, 2024
Author: Ashok Bhushan
Bench: Ashok Bhushan
NATIONAL COMPANY LAW APPELLATE TRIBUNAL,
PRINCIPAL BENCH, NEW DELHI
Company Appeal (AT) (Insolvency) Nos.186 of 2024
(Arising out of Order dated 20.11.2023 passed by the Adjudicating Authority
(National Company Law Tribunal), New Delhi, Court-III, in IA No.4229/2023 in
IB-85(ND)/2021)
IN THE MATTER OF:
Ashwani Kumar Kaura,
Tower No.4, Apartment No.802,
Sector 115, Sante Majra, PO Landran,
Mohali, Kharar Landran Road,
Near Chappar Chiri,
District SAS Nagar (Mohali), Punjab-140307. ... Appellant
Versus
1. Devendra Umarao,
Resolution Professional of
Ansal Lotus Melange Projects Pvt. Ltd., House No.B-43A,
First Floor, Kalkaji, New Delhi 110019.
2. Singla Builders and Promoters Ltd.,
Successful Resolution Applicant,
Plot No.1265-C, Sector-82, J.L.P.L.,
Industrial Area, SAS Nagar, Mohali,
Punjab-140301. ... Respondents
With
Company Appeal (AT) (Insolvency) Nos.187 of 2024
(Arising out of Order dated 20.11.2023 passed by the Adjudicating Authority
(National Company Law Tribunal), New Delhi, Court-III, in IA No.4089/2023 in
IB-85(ND)/2021)
IN THE MATTER OF:
Ashwani Kumar Kaura,
Tower No.4, Apartment No.802,
Sector 115, Sante Majra, PO Landran,
Mohali, Kharar Landran Road,
Near Chappar Chiri,
District SAS Nagar (Mohali), Punjab-140307. ... Appellant
Versus
1. Devendra Umarao,
Resolution Professional of
Ansal Lotus Melange Projects Pvt. Ltd.,
House No.B-43A, First Floor, Kalkaji,
New Delhi 110019.
Company Appeal (AT) (Insolvency) Nos.186 & 187 of 2024 1
2. Singla Builders and Promoters Ltd.,
Successful Resolution Applicant,
Plot No.1265-C, Sector-82, J.L.P.L.,
Industrial Area, SAS Nagar, Mohali,
Punjab-140301. ... Respondents
Present:
For Appellant: Harsh Gurbani, Advocate.
For Respondents: Advocate Abhishek Parmar, for R-1
Advocate Ashish Aggarwal, Advocate Nalin Dhingra,
for R-2
Mr. Gaurav Mitra, Advocate
JUDGMENT
ASHOK BHUSHAN, J.
These two Appeals have been field against the order dated 20.11.2023 passed by Adjudicating Authority, by which order, IA No.4229 of 2023 and IA No.4089 of 2023 filed by the Appellant were rejected.
2. Facts and issues raised in both the Appeal(s) being similar, we proceed to decide both the Appeal by this common judgment.
3. Facts giving rise to these two Appeal(s) are as follows:
Company Appeal (AT) (Insolvency) Nos.186 of 2024
(i) Corporate Debtor - M/s Ansal Lotus Melange Projects Private Limited allotted unit No. 1GF on 08.03.2010 in the Commercial Office Complex 'City Centre', Mohali to the Appellant. On 12.05.2012, Addendum Agreement was executed in respect of basement of Unit No.1GF. The Corporate Debtor offered possession of the Unit 1GF vide letter Company Appeal (AT) (Insolvency) Nos.186 & 187 of 2024 2 dated 30.09.2020. However, the Appellant did not take possession of the Unit.
(ii) On 07.04.2021, Corporate Insolvency Resolution Process ("CIRP") commenced against the Corporate Debtor. The Appellant filed his claim on 26.05.2021 as a Financial Creditor. The Resolution Professional ("RP") on 27.05.2021, intimated the Appellant to file his claim in Form-F. The Appellant filed his claim in Form-F on 28.10.2021. The RP sent an email on 02.09.2022 informing the Appellant that claim against Unit 1GF + basement is admitted for an amount of Rs.26,53,372.
(iii) The Appellant filed an IA No.1310 of 2023 before the Adjudicating Authority, seeking direction against Respondent to accept his claim in full as a Financial Creditor. The Adjudicating Authority disposed of the Application on 26.05.2023 with a direction to RP to reconsider the claim of the Appellant. The RP after reconsideration has admitted the claim of the Appellant for an amount of Rs.41,59,190/- as assured return. The Appellant aggrieved by non-admission of full claim filed an IA No.4229 of 2023, which has been dismissed by the impugned order.
Company Appeal (AT) (Insolvency) Nos.187 of 2024
(i) Corporate Debtor - M/s Ansal Lotus Melange Projects Private Limited allotted unit No. 5 GF on 09.02.2010 in the Company Appeal (AT) (Insolvency) Nos.186 & 187 of 2024 3 Commercial Office Complex 'City Centre', Mohali to the Appellant. On 12.05.2022, Addendum Agreement was executed in respect of basement of Unit No.5GF. The Corporate Debtor offered possession of the Unit 1GF vide letter dated 30.09.2020. However, the Appellant did not take possession of the Unit.
(ii) On 07.04.2021, Corporate Insolvency Resolution Process ("CIRP") commenced against the Corporate Debtor. The Appellant filed his claim on 26.05.2021 as a Financial Creditor. The Resolution Professional ("RP") on 27.05.2021, intimated the Appellant to file his claim in Form-F. The Appellant filed his claim in Form-F on 28.10.2021. The RP sent an email on 02.09.2022 informed the Appellant that claim against Unit 5GF + basement is admitted for an amount of Rs.28,55,210.
(iii) The Appellant filed an IA No.1313 of 2023 before the Adjudicating Authority, seeking direction against Respondent to accept his claim in full as a Financial Creditor. The Adjudicating Authority disposed of the Application on 26.05.2023 with a direction to RP to reconsider the claim of the Appellant. The RP after reconsideration has admitted the claim of the Appellant for an amount of Rs.40,40,465/- as assured return. The Appellant aggrieved by non-admission of Company Appeal (AT) (Insolvency) Nos.186 & 187 of 2024 4 full claim filed an IA No.4089 of 2023, which has been dismissed by the impugned order.
4. We have heard learned Counsel for the parties.
5. The learned Counsel for the Appellant, challenging the order submits that RP committed error in not admitting the full claim. He submits that although by subsequent order, the RP has increased the claim for both the Units, i.e. 1GF and 5GF, however, the admission of claims by the RP are still short of Rs.4,40,000/-. It is submitted that possession was not taken by the Appellant of both the Units, since neither any Completion Certificate was issued nor any such Certificate was shown to the Appellant and further the Certificate dated 14.10.2016 is only a partial Completion Certificate. It is submitted that the work was not completed, hence the possession was not taken over by the Appellant. The offer of possession was highly belated. The Appellant claim for Unit 1GF ought to have been admitted for Rs.45,99,190 instead of Rs.41,59,190/-.
6. The learned Counsel for the RP submits that the claim of the Appellant was admitted as per the assured return, which was undertaken by the Corporate Debtor. The claim was revised by the RP and entire assured return was included. It is submitted that the Appellant having been offered possession on 30.09.2020, which possession was not taken, the Appellant was entitled for only assured return, which has already been admitted. The IA filed by Appellant being IA No.4229 of 2023 as well as IA No.4089 of 2023 have rightly been rejected by the Adjudicating Authority. Company Appeal (AT) (Insolvency) Nos.186 & 187 of 2024 5 The Appellant is a US passport holder and all proceedings are initiated by his special Power of Attorney holder. It is submitted that the Appeal(s) are being filed by the Appellant with regard to issue of his commitment to pay maintenance charges with respect to the said Units, which are not being paid by the Appellant.
7. The learned Counsel for Successful Resolution Applicant ("SRA") also opposed the submissions of the Appellant and submits that Corporate Debtor has offered possession by letter dated 30.09.2020 and partial Completion Certificate was issued of the Block where Unit No.1GF and 5GF are situated on 14.10.2016. The RP has enhanced the claim in pursuance of directions issued by the Adjudicating Authority. The Appellant was entitled for assured return only upto the date of offer of possession.
8. We have considered the submissions of learned Counsel for the parties and have perused the record.
9. The claims, which were filed by the Appellant with regard to Unit 1GF and 5GF with basement have been admitted by the RP. The RP has admitted the claim of assured return upto the date when possession was offered. The Appellant's case is that although possession were offered, but the Appellant did not take possession since Units were not complete. It is relevant to notice that the Resolution Plan of the SRA has already been approved by the Adjudicating Authority vide order dated 20.11.2023 and under the Resolution Plan, the SRA has provided to give 40% of the admitted claim as well as the Units, to which the Appellant is entitled as Company Appeal (AT) (Insolvency) Nos.186 & 187 of 2024 6 per the Plan. There is no dispute that Unit Nos. 1GF and 5GF with basement were allotted to the Appellant and the possession was offered on 30.09.2020, which was not taken by the Appellant. Partial Completion Certificate dated 14.10.2016, issued by the competent Authority has already been brought on the record. The Appellant although had not accepted possession on 30.09.2020, but allotment having not been disputed, the Appellant is entitled for the Units as well as the amount as per the Resolution Plan, which has been approved on 20.11.2023. The IAs, which have been filed by the Appellant was for further enhancement of the acceptance of the claim, for example, in IA No.4229 of 2023, the Appellant's case is that instead of claim of Rs.41,59,190/- admitted by the RP, he was entitled for admission of the amount of Rs.45,99,190/-. Thus, according to the Appellant, there is short fall of Rs.4,40,000/-. The Adjudicating Authority has noticed that claim of the Appellant having already been revised, there was no ground made out to interfere with the decision of the RP. The RP has applied his mind and passed a detailed and reasoned email regarding the claim, hence, no interference is called for. The Adjudicating Authority having taken a decision, not to interfere with the admission of the claim of the Appellant, we see no reason to interfere with the impugned order passed by the Adjudicating Authority rejecting the IA Nos.4229 and 4089 of 2023.
10. As noted above, the Resolution Plan of the Corporate Debtor has already been approved on 20.11.2023, under which the SRA has undertaken to pay 40% of the amount admitted, i.e., 40% of the assured Company Appeal (AT) (Insolvency) Nos.186 & 187 of 2024 7 return. We also notice that although, possession of the Units offered to the Appellant on 30.09.2020, but the same was not taken by the Appellant. The Appellant having not taken possession of the Units and the Units having already been allotted to the Appellant, the Appellant is entitled for the Units. In view of the above, we dispose of these Appeal(s) with following directions:
(I) Order passed by Adjudicating Authority dated 20.11.2023 in IA No.4229 of 2023 and IA No.4089 of 2023 are upheld. (II) The SRA is directed to execute the Conveyance Deed for Units 1GF (with basement) and 5GF (with basement) and handover the possession of the Units to the Appellant.
Parties to bear their own costs.
[Justice Ashok Bhushan] Chairperson [Justice Yogesh Khanna] Member (Judicial) [Barun Mitra] Member (Technical) NEW DELHI 22nd March, 2024 Ashwani Company Appeal (AT) (Insolvency) Nos.186 & 187 of 2024 8