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) No.1039 of 2023
(Arising out of Order dated 16.06.2023 passed by the Adjudicating Authority
(National Company Law Tribunal), New Delhi, Court-III, in IA No.1531/2023 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
Devendra Umarao,
Resolution Professional of
Ansal Lotus Melange Projects Pvt. Ltd.,
House No.B-43A, First Floor, Kalkaji,
New Delhi 110019. ... 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.
This Appeal has been filed challenging the order dated 16.06.2023 passed by National Company Law Tribunal, New Delhi, Court-III in IA No.1531 of 2023, which was filed by the Appellant seeking a direction to admit the claim of the Appellant, which Application was rejected by the Adjudicating Authority.
Company Appeal (AT) (Insolvency) No.1039 of 2023 1
2. Brief facts necessary for deciding this Appeal are:
(i) The Corporate Debtor - M/s Ansal Lotus Melange Pvt. Ltd.
allotted two Units to the Appellant vide two allotment letter dated 16.12.2009 in respect of Unit CB-05 and CB-06 in commercial-cum-office complex in City Centre, situated in Mohali. Payment of Rs.1.25 Crores for each Unit was made to the Corporate Debtor. The Appellant wrote letter dated 27.06.2013 asking the CD to deliver the possession or refund the amount with simple interest @ 2.25% per month.
(ii) On 09.08.2023, the Corporate Debtor asked to make additional payment of Rs.4,42,007/- in respect of two commercial site CB-05 and CB-06. The payment of Rs.4,42,007/- was made by the Appellant for each of the two commercial spaces.
(iii) On 24.09.2014, two letters addressed by the CD to the Appellant for taking possession of the commercial space, which letters were signed by the Appellant as owner under protest.
(iv) The Appellant filed Civil Suit in the year 2016 seeking refund of the entire amount being CS-43 of 2016.
(v) Partial Competition Certificate was issued on 14.10.2016.
(vi) On 07.04.2021, insolvency commenced against the Corporate Debtor and Respondent was appointed as Interim Resolution Professional and later confirmed as Resolution Professional ("RP"). The Appellant submitted is claim in Form-CA for two Units. The RP on 27.05.2021 informed the Appellant and he was required to submit claim in Form-F on the ground that the Company Appeal (AT) (Insolvency) No.1039 of 2023 2 CD has provided possession of respective Units to the Appellant. The Appellant has submitted his claim in Form-F on 28.10.2021. The claim of the Appellant was not admitted.
(vii) The Appellant filed IA No.1531 of 2023 seeking direction against the RP to accept the claim of the Appellant. The Adjudicating Authority vide order dated 16.06.2023 dismissed the Application. Aggrieved by which order this Appeal has been filed.
3. Learned Counsel for the Appellant challenging the impugned order submits that the Appellant's entire claim was required to be admitted as Financial Creditor. Further on advise of the RP, the Appellant has also filed his claim in Form-F, which too was not admitted. There was no occasion to handover the possession to the Appellant on 24.09.2014, since no Occupancy Certificate was issued and Partial Occupancy Certificate was issued only on 18.03.2015. The RP committed error in not admitting the claim.
4. The learned Counsel for the RP refuting the submission of the learned Counsel for the Appellant submits that the Appellant having handed over the possession on 24.09.2014, which letter handing over possession has also been signed by the Appellant on 24.09.2014, there was no occasion to accept and admit any claim of the Appellant. It is submitted that the Appellant claim was rightly not admitted by the RP. The Appellant continued to be in possession of the commercial spaces and enjoying possession since 24.09.2014. Hence, the claim could not have been accepted.
Company Appeal (AT) (Insolvency) No.1039 of 2023 3
5. The learned Counsel for SRA also refuted the submissions of learned Counsel for the Appellant and submits that the Appellant being handed over the possession of the Unit, his claim was rightly not admitted. It is submitted that the Appellant has also field a Civil Suit No.43 of 2016, where the Corporate Debtor was impleaded as Defendant No.2. It is further submitted that SRA undertakes to execute the Conveyance Deed of Unit CB-05 and CB-06 in favour of the Appellant. It is further submitted that Resolution Plan of the Corporate Debtor has already been approved by the Adjudicating Authority on 20.11.2023.
6. We have considered the submissions of learned Counsel for the parties and have perused the records.
7. From the facts brought on record, it is clear that Unit CB-05 and CB- 06 were allotted to the Appellant by the Corporate Debtor. The possession of the Units were offered by the Corporate Debtor by letter dated 24.09.2014. Copy of the letter has been filed by the Appellant himself at page-86, which is as follows:
"Ansal Lotus Melange Projects Pvt. Ltd. 1202, Antarisksh Bhawan, 22, K.G. Marg, New Delhi 110001 Tel: 011-66090221/66302875/43564436, Fax: 23322009/ 66303538 SCO 184, Sec 9C, Chandigarh. Tel:0172-5046532/5035035 Dated : 24-09-2014 To, The Manager, Ansal Lotus Melange Projects Pvt. Ltd. Subject: Handing Over of Commercial Building No.: CB 05 in Project City Centre Sector 115, Mohali. Company Appeal (AT) (Insolvency) No.1039 of 2023 4 Dear Sir, You are hereby authorized to hand over the physical possession of under mentioned Commercial Building No.: CB 05 to Mr. Ashwani Kumar Kaura R/o Apartment no. T4-802 Orchard County Sector 115 Mohali or his/her/their authorized representative in project City Centre at Sector 115, Mohali With an admeasuring Area of 6486 sq. ft. Handing over/taking over certificates will be signed by the owner or his/her/their authorized representative and distributed as under:
a) Owner
b) GM (Projects) - Ansal Lotus Melange Projects Pvt. Ltd.
c) Estate Manager (SFML)
d) Accounts Copy - Ansal Lotus Melange Projects Pvt. Ltd.
e) Office Copy - Ansal Lotus Melange Projects Pvt. Ltd.
Please ensure that the interest free Security Deposit dues to the Star Facilities Management Limited plus any outstanding amounts towards Ansal Lotus Melange Projects Pvt. Ltd. is collected by you before handing over possession.
Thanking you,
8. Perusal of above letter indicates that the possession letter has been accepted by the Appellant, although under protest. The learned Counsel for the Appellant has submitted that possession could not have been handed over since there was no Occupancy Certificate. The Appellant has Company Appeal (AT) (Insolvency) No.1039 of 2023 5 also brought on the record Partial Completion Certificate dated 18.03.2015, along with Appeal, which indicates that Partial Completion Certificate of commercial complex was issued.
9. The Appellant initially filed claim as Financial Creditor, which was not accepted and RP informed him that he cannot be accepted as Financial Creditor. Thereafter, the Appellant filed his claim in Form-F. The RP has filed its reply. In the reply it is stated that possession of the Unit having already been handed over on 24.09.2014, there is no occasion of acceptance of the claim of the Appellant. The RP has also referred to and relied on order dated 12.10.2022 passed by Civil Judge, SAS Nagar, Mohali in a suit filed by the Appellant against Monga Realtors Pvt. Ltd. & Anr., a broker, through whom the Appellant booked the Units as well as the Corporate Debtor. The Application filed by the Corporate Debtor to stay the proceedings of suit in view of the moratorium imposed with effect from 07.04.2021, was allowed and proceedings in suit was stayed. However, the Appellant's suit against the Agent, through whom the Units were booked was allowed to proceed. The possession letter dated 24.09.2014, which has been extracted above, clearly indicate that possession letter was accepted by the Appellant, though under protest. The possession of Unit was thus, handed over to the Appellant on 24.09.2014, thus, the RP did not commit any error in not accepting the claim of the Appellant, for the possession of the Units, which have already been handed over. We, thus, do not find any error in the impugned order passed by the Adjudicating Authority in rejecting IA No.1531 of 2023 filed by the Appellant seeking Company Appeal (AT) (Insolvency) No.1039 of 2023 6 direction to accept the claim. However, as undertaken by the SRA, the Resolution Plan having been approved on 20.11.2023, the SRA now has undertaken to execute of the Conveyance Deed for both the Units.
10. In result, the Appeal is disposed of in following manner:
(I) The order impugned dated 16.06.2023, rejecting IA No.1531 of 2023 is upheld.
(II) The SRA namely - Singla Builders and Promoters Limited shall execute the Conveyance Deed in favour of the Appellant for Units CB-5 and CB-6.
Parties shall 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) No.1039 of 2023 7