National Company Law Appellate Tribunal
Ramson Rodrigues & Ors vs Ashvi Developers Private Limited on 17 September, 2025
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Comp. App. (AT) (Ins) No. 1640 of 2024
& I.A. No. 5985, 5986, 5987, 5988 of 2024
(Arising out of the Order dated 25.06.2024 passed by the National Company
Law Tribunal, Mumbai Bench, Court 1V in CP (IB) 361 (MB)/ 2024)
IN THE MATTER OF:
1. a. Ramson Rodrigues
b. Rylan Rodrigues
House No. 64, Vakola Village, Behind Shirin
Bakery, Santacruz (East)
Mumbai - 400 055. ...Appellant No. 1
2. Rajesh Jain
Flat No. 102, Hercules, Vasant Galaxy, Bangur
Nagar, Goregoan West, Mumbai- 400062. ...Appellant No. 2
3. Murli Khanchandani
Pinky General Trading LLC Shop No. 2, AI Fahidi
building, AI Souk Al Kabeer, Opp. Grand Nova
Hotel, AI Fahidi Street, Bur Dubai, UAE. ...Appellant No. 3
4. Sushma Boob
803/804, Jupiter B Wing, Vasant Galaxy, Bangur
Nagar, Goregaon West, Mumbai - 400 090
...Appellant No. 4
5. Jyoti Vikas Kasat
B 1301, 13th Floor, Rustomjee Elanza, Near Inorbit
Mall, Malad West, Mumbai - 400 064 ...Appellant No. 5
6. a. Anandkumar Mandhana
b. Sheetal Mandhana
B-1/501, Jamnotri Tower, Bangur Nagar, Goregoan
West, Mumbai- 400104 ...Appellant No. 6
7. a. Rajaram Maheshwari
Comp. App. (AT) (Ins.) No. 1640 of 2024
b. Manoj Maheshwari
c. Santosh Maheshwari
Vasant Galaxy, Jupiter- B, 701-702, Link Road,
Bangur Nagar, Goregaon West, Mumbai - 400 104
...Appellant No. 7
8. a. Ajay Menon
b. Shruthi Menon
B404, Uranus, Vasant Galaxy, Bangur Nagar,
Goregaon West, Mumbai - 400 090 ...Appellant No. 8
9. a. Mahesh Dhanhani
b. Asha Dhanjani
Flat No-1902, A wing, 19th Floor, Shiv Darshan
Towers, Chincholi Bunder Road, Sion Complex,
Malad West, Mumbai- 400064 ...Appellant No. 9
10. a. Mahip Goyal
b. Shalini Goyal
1403, Tower-1, Dheeraj Gaurav Heights, Off New
Link Road, Opp. Infinity Mall, Andheri West,
Mumbai - 400 053 ...Appellant No. 10
11. a. Shobha Vipul Amodwala
b. Vipul Rameshbhai Amodwala
c. Vipul Rameshbhai Amodwala (HUF)
Flat No. 601-B, Mercury B Wing, Vasant Valley
Galaxy, Bangur N agar, Goregaon West,
Mumbai-400 104. ...Appellant No. 11
12. a. Pratik Vinod Biyani
b. Bindu Biyani
c. Addon Export House Limited
803/804, Jupiter B, Wing, Vasant Galaxy, Bangur
Nagar, Goregaon West, Mumbai - 400 090 ...Appellant No. 12
13. Suryanarayan Synthetics Private Limited
6012-6013 Hi Tech Textile Market,
Page 2 of 17
Comp. App. (AT) (Ins.) No. 1640 of 2024
Near Anjana Fann,
Ring Road, Surat- 394010 ...Appellant No. 13
14. a. Tina Desai
b. Swarnalata Desai
N-430, Tarapore towers, 2nd floor, Oshiwara,
Andheri (W) Mumbai 400053 ...Appellant No. 14
15. a. Rahul Prabhakar Uchil
b. Karishma Rahul Uchil
405, Tower 1, Auris Serenity, Malad Kachpada,
Near Silver Oaks Restaurant, Malad West,
Mumbai 400 064 ...Appellant No. 15
16. a. Sunilkumar A menon
b. Karthika Menon
B-303, Dev Darshan, Bank of Baroda Building,
Station Road, Bhandup West, Mumbai-400078
...Appellant No. 16
17. a. Reji Parmeshwaran Nair
b. Jyoti Reji
D8/5, Jal Nidhi, Bangur Nagar, Goregoan West,
Mumbai 400090 ...Appellant No. 17
18. a. Manisb Lalchand Beriwal
b. Nitu Manish Beriwal
Flat No. 172, 17th Floor, Kalpataru Pinnacle,
Opposite Inorbit Mall, Goregaon Mulund Link Road.
Goregaon (West), Mumbai- 400104 ...Appellant No. 18
19. a. Vasudha Pradeep Chandhan
b. Pradeep M. Chandan
E/504, Mars CHS Ltd. Vasant Galaxy, Bangur
Nagar, Goregaon West, Mumbai - 400 104 ...Appellant No. 18
Versus
Page 3 of 17
Comp. App. (AT) (Ins.) No. 1640 of 2024
Ashvi Developers Private Limited
43/11, Raja Bahadur Building Tamarind Lane,
Fort Mumbai, Mumbai City- 400 001
...Respondent
Email Id: [email protected]
Present
For Appellant: Mr. Aditya Dewan, Mr. Shikha Ginodia, Mr. Mohit
Bangwal, Advocates.
For Respondents: Mr. Rohit Gupta, Mr. Samarth Chowdhary, Ms.
Pracheta Kar, Mustafa Nulwala, Advocates.
JUDGEMENT
(17.09.2025) NARESH SALECHA, MEMBER (TECHNICAL)
1. The present appeal has been filed by the Appellants i.e. Ramson Rodriques and Others, who are the Home buyers, under Section 61 of the Insolvency and Bankruptcy Code, 2016 ('Code') against the Impugned Order dated 25.06.2024 passed by the National Company Law Tribunal, Mumbai Bench ('Adjudicating Authority') in Company Petition (IB) No. 361 of 2024.
2. Ashvi Developers Pvt. Ltd. is the Respondent herein.
3. The Appellants submitted that they are homebuyers and allottees in the residential project known as Ariisto Sommet-Residential, promoted by Ashvi Developers Private Limited (the Respondent) and Atithi Builders and Constructions Private Limited, collectively referred to as the Promoters. The Appellants contended that the said Project is registered with the Maharashtra Real Estate Regulatory Authority (MAHARERA) under registration number Page 4 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024 P51800009848, comprising a total of 220 flats, out of which 115 flats have been allotted or booked to respective purchasers, as per details available on the official MAHARERA website.
4. The Appellants submitted that they collectively represent allottees of 22 flats, constituting 19% of the total allotted flats in the said Project, which satisfies the threshold under the second proviso to Section 7(1) of the Code, for initiating the CIRP against the Respondent.
5. The Appellants submitted that for Appellants Nos. 1 to 13, the Promoters entered into Agreements for Sale (AFS) for their respective flats, wherein the Promoters agreed to hand over possession on or before 30.06.2019, with a grace period of six months, extending the deadline to 31.12.2019. The Appellants contended that the Promoters failed to complete the construction and deliver possession within this stipulated time, despite raising Rs. 49,45,02,644/- from these Appellants. The Appellants submitted that Appellant No. 10 was additionally allotted Flat No. 3505 vide an Allotment Letter dated 05.01.2017, with the same possession deadline of 31.12.2019 after the grace period. The Appellants contended that the Promoters similarly failed to deliver possession of this flat, further evidencing their default and disregard for contractual obligations.
6. The Appellants submitted that for Appellants Nos. 14 to 17, the Promoters entered into AFS for their respective flats, with possession agreed by 30.06.2019 and extended to 31.12.2019. The Appellants contended that the Promoters failed to meet this deadline, leading these Appellants to file complaints with Page 5 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024 MAHARERA under the Real Estate (Regulation and Development) Act, 2016 (RERA).
7. The Appellants submitted that Appellant No. 18 was issued an Allotment Letter dated 20.12.2016 for Flat No. 2405, with possession due by 30.06.2019 and a grace period of twelve months, extending to 30.06.2020. The Appellants contended that the Promoters failed to deliver possession, prompting Appellant No. 18 to also file a complaint with MAHARERA.
8. The Appellants submitted that on 28.03.2022, MAHARERA passed a common order in the complaints filed by Appellants Nos. 14 to 18 (Complaint Nos. CC006000000192131, CC006000000089922, CC006000000195175, CC006000000192376, and CC006000000141123), directing the Promoters to refund the entire amounts paid, along with interest at the State Bank of India's Highest Marginal Cost Lending Rate (MCLR) plus 2%, from the dates of payments until actual realization. The Appellants contended that as on 31.08.2023, Rs. 29,13,80,133/- remains due and payable to these Appellants, who continue to be allottees and financial creditors as a class under the Code.
9. The Appellants submitted that for Appellant No. 19, the Promoters received Rs. 31,00,000/- for Flat No. 2202, confirmed by a Booking Slip dated 02.10.2014 and a receipt dated 15.12.2014. The Appellants contended that due to lack of construction progress, Appellant No. 19 requested cancellation and refund vide letter dated 09.02.2016, which was acknowledged by the Respondent on Page 6 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024 21.01.2019, but no refund has been made, rendering Appellant No. 19 also as an allottee and financial creditor.
10. The Appellants submitted that they have incurred additional financial burdens, including payments towards statutory dues such as stamp duty, registration charges, and indirect taxes. The Appellants contended that Appellants Nos. 3 to 18 are continuing to pay instalments to banks or financial institutions for loans availed to purchase their flats. The Appellants submitted that Appellants Nos. 3, 4, 5, 7, 8, 9, 10, 12, 13, 15, 16, and 18 availed loans under interest subvention schemes, with Tripartite Agreements obligating the Promoters to pay pre-EMI interest. The Appellants contended that the Promoters' failure to honour this obligation forced these Appellants to bear the interest costs themselves.
11. The Appellants submitted that they filed Company Petition (IB) No. 361 of 2024 under Section 7(1) of the Code on 08.11.2023, claiming a financial debt of Rs. 1,40,77,41,654/- in default. The Appellants contended that the petition was listed on 04.06.2024, adjourned to 25.06.2024, and dismissed vide the Impugned Order dated 25.06.2024 without even issuing notice to the Respondent.
12. The Appellants submitted that the Adjudicating Authority erred in dismissing the petition as barred by limitation, considering the default date as 31.12.2019. The Appellants contended that, per the Hon'ble Supreme Court's order in Suo Moto Writ Petition (C) No. 3 of 2020, the period from 15.03.2020 to 28.02.2022 is excluded for limitation purposes, extending the deadline to 17.12.2024, making the filing on 08.11.2023 timely.
Page 7 of 17
Comp. App. (AT) (Ins.) No. 1640 of 2024
13. The Appellants submitted that the Adjudicating Authority misinterpreted the MAHARERA order dated 28.03.2022 as rendering the petition premature for Appellants Nos. 14 to 18. The Appellants submitted that this order did not extinguish their rights as allottees, as it preserved their lien on the flats until full refund with interest, and they remain financial creditors under Section 5(8) of the Code. The Appellants submitted that the Adjudicating Authority overlooked the facts concerning Appellant No. 19, including the acknowledgment of receipt and failure to refund, confirming ongoing allottee status.
14. The Appellants submitted that the Respondent's financial difficulties are evident from project delays, litigation with creditors, non-payment to suppliers, and RERA violations as per the MAHARERA order. The Appellants contended that these factors heighten risks to their investments and justify CIRP initiation. The Appellants submitted that the Impugned Order violates principles of natural justice by dismissing the petition without affording them an opportunity to address limitation and prematurity issues, and without notice to the Respondent.
15. Concluding their arguments, the Appellants requested this Appellate Tribunal to set aside the Impugned Order and to admit the Company Petition and initiate CIRP against the Respondent.
16. Per contra, the Respondent denied the averments made by the Appellants.
17. The Respondent submitted that the claims of Appellants Nos. 1 to 13 are time-barred, as their purported date of default is 31.12.2019, and the petition was filed on 08.11.2023, more than three years later. The Respondent contended that Page 8 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024 the Adjudicating Authority correctly dismissed the petition on this ground, as it is barred by limitation under the Code. The Respondent submitted that there has been no admission of liability or monies owed to Appellants Nos. 1 to 13, rendering their claims expired under the limitation period. The Respondent contended that without such admission, the default relied upon cannot sustain the petition.
18. The Respondent submitted that the claims of Appellants Nos. 14 to 18 arise from MAHARERA order dated 28.03.2022, which directed refund of amounts paid towards flat considerations. The Respondent submitted that the petition, filed on 08.11.2023, precedes the refund obligation deadline under the MAHARERA order. The Respondent contended that no cause of action had arisen for these Appellants at the filing date, making the petition premature. The Respondent submitted that Appellants Nos. 14 to 18, having availed the alternative remedy under RERA and obtained a favourable order, cannot pursue the same grievance under the Code, as it constitutes duplicity of proceedings.
19. The Respondent submitted that Appellant No. 19 lacks locus standi to file the petition or join the appeal, as no flat was allotted, and only a booking slip dated 02.10.2014 was issued, which was cancelled by the Appellant on 09.02.2016.
20. The Respondent submitted that the petition fails to meet the minimum threshold under Section 7 of the Code, requiring at least 10% of the allottees in the real estate project. The Respondent contended that with 115 total allottees, at Page 9 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024 least 12 are needed, but the invalid claims of Appellants Nos. 1 to 19 reduce the number below this requirement. The Respondent submitted that even assuming the claims of Appellants Nos. 14 to 18 are not premature, the overall petition still fails the 10% threshold due to the time-barred and locus-deficient claims of the others.
21. The Respondent submitted that the Adjudicating Authority dismissed the petition without issuing notice, as it was ex facie erroneous and baseless. The Respondent contended that the appeal lacks legal substance, with no facts or contentions meriting acceptance.
22. The Respondent conceded that if this Appellate Tribunal finds the impugned order erroneous, the matter should be remanded to the Adjudicating Authority for fresh consideration. The Respondent also submitted that this would allow the Respondent an opportunity to file a reply and place relevant facts and documents on record, as the original dismissal occurred without such hearing. The Respondent requested this Appellate Tribunal to dismiss the present appeal in limine as non-maintainable and baseless and alternatively, remand the matter to the Adjudicating Authority for adjudication after affording the Respondent an opportunity to respond.
Page 10 of 17
Comp. App. (AT) (Ins.) No. 1640 of 2024 Findings
23. At this stage, we would consider the issue based on limitation and threshold, which the Adjudicating Authority dismissed the section 7 Application of the Appellants for initiating corporate insolvency resolution process against the corporate debtor.
24. We note that as per Section 7(1) of the Code, which reads as under: -
"Initiation of corporate insolvency resolution process by financial creditor- A financial creditor either by itself or jointly with 1[other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Government,] may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred [Provided that for the financial creditors, referred to in clauses
(a) and (b) of sub-section (6A) of section 21, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent. of the total number of such creditors in the same class, whichever is less:
Provided further that for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten Page 11 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024 per cent. of the total number of such allottees under the same real estate project, whichever is less:
Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first and second provisos and has not been admitted by the Adjudicating Authority before the commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, such application shall be modified to comply with the requirements of the first or second proviso within thirty days of the commencement of the said Act, failing which the application shall be deemed to be withdrawn before its admission."
(Emphasis Supplied)
25. We note that there are in total 115 (out of 220) flats which are allotted. Out of these 115 flats, the homebuyers/ allottees of 22 flats i.e., 19% of the total flats allotted, filed the Company Petition under section 7(1) of the Code. We further note that the Adjudicating Authority dismissed the said Company Petition on the grounds of limitation and premature preference of the Company Petition allegedly without giving proper opportunity to the Appellants to show how the said Company Petition is within limitation and not premature, without due consideration of the evidence on record brought out by the Appellants before the Adjudicating Authority.
26. At the outset, we note that the Appellants entered into AFS for their respective flats with promoters who promised to give possession of flats by 30.06.2019, with a six-month grace period extending the deadline to 31.12.2019. Page 12 of 17
Comp. App. (AT) (Ins.) No. 1640 of 2024 However, the Promoters failed to complete construction and deliver possession by this date. We take into consideration that the Adjudicating Authority dismissed petition filed by the Appellants as time-barred, based on the default date of 31.12.2019 for Appellant No. 1 to Appellant No. 13. Consequently, the Adjudicating Authority held that the Appellants do not meet the minimum threshold as per Section 7 (1) of the Code. Needless to add, that the Adjudicating Authority also did not accept the claims of remaining Appellant No. 14 to Appellant No. 19 on other grounds.
27. It is significant to take into consideration the Hon'ble Supreme Court, in Suo Moto Writ Petition (c) No. 3 of 2020 that clearly excludes the period from 15th March 2020, till 28th February 2022, while calculating the limitation period for initiating proceedings. The Hon'ble Supreme Court observed that;
"It is further clarified that the period from 15.03.2020 till
28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings."
(Emphasis Supplied)
28. We note that even as per the Impugned Order, the date of default by the Respondent is on 31.12.2019 based on the AFS. Thus, considering the judgement Page 13 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024 of the Hon'ble Supreme Court, the limitation period for filing the Company Petition will end on 17.12.2024, as the section 7 Application was filed by the Appellants on 08.11.2023, thus the Company Petition was filed prior to the end of limitation on 17.12.2024. Thus, we have no hesitation to hold that the Adjudicating Authority, erred in dismissing the Company Petition on the ground of limitation, without considering the judgement passed by the Hon'ble Supreme Court Judgement, as discussed above.
29. Now, we will examine the claim of the Appellants 14 to 18. We note that the MAHARERA Order upheld the right of Appellant Nos. 14 to 18 to realize interest on the amounts to be paid by the Respondent to the Appellant, which is clarified as below;
"22...
e ... Till the actual realisation of the said amount with interest to the complainants. the complainants shall have lien on the said flats."
(Emphasis Supplied) Thus, it becomes clear that the MAHARERA Order did not extinguish or cause a waiver of the rights of the Appellants Nos. 14-18 to be allottees in the said Project. The Appellant Nos. 14 to 18 continue to be Financial Creditors in terms of Section 5(8) of the Code, 2016 since the amounts paid by Appellant 14 to 18 to the Respondent constitute a financial debt.
30. We will now consider the case of Appellant No. 19. We find that the Adjudicating Authority did not consider that the Promoters issued Booking Slip Page 14 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024 dated 02.10.2014, to Appellant No. 19 confirming the allotment of Flat No. 2202. We further note that on 21.01.2019, the Respondent acknowledged receipt of Rs. 31,00,000/- from Appellant No. 19. It is only on failure of Respondent to hand over Flat No. 2202, the Appellant No. 19, by a letter dated 09.02.2016, requested the Respondent to cancel the booking for Flat No. 2022 and sought refund of amount paid, which the Respondent has failed to refund the amount to Appellant No. 19, who consequently remains an allottee in the project. The Adjudicating Authority ignored this relevant fact. This finding of the Adjudicating Authority is not correct on this account.
31. We also take into consideration the submissions made by the Respondent in their reply as well as in written submission before us, which reads as under: -
"The Appeal is liable to be partly allowed and remanded back to the Hon'ble NCLT for consideration only for Appellant No. 1 to 13, as their claim is well within limitation, on account of the Order dated 10 January 2022 passed by the Hon'ble Supreme Court in Suo Moto Writ Petition (C) No. 3 of 2020, whereby the period from 15 March 2020 till 28 February 2022 was excluded for the purposes of limitation prescribed under the general law or special laws."
"The Impugned Order was passed without even issuing a notice to this Respondent vis-à-vis the Respondent was not given an opportunity to put forth his case before the Hon'ble NCLT. On this count alone, the present Appeal is liable to be partly allowed and remanded back to the Hon'ble NCLT for Appellant Page 15 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024 No. 1 to 13 (for hearing the matter afresh) whilst dismissing the Appeal against Appellant No. 14 to 19."
"Without prejudice to what is stated above, it is submitted that the Petition has been dismissed by the Hon'ble NCLT without issuing notice to the Respondent as the Petition was ex-facie erroneous. In the event this Hon'ble Tribunal is of the opinion that the Impugned Order is erroneous, then this Hon'ble Tribunal be pleased to remand the matter back to the Hon'ble NCLT, so as to give the Respondent an opportunity to plead its case by placing on record relevant and important facts/documents, as the Impugned Order was passed without giving the Respondent an opportunity of filing its Reply/being heard."
(Emphasis Supplied)
32. Thus, even the Respondent, while contradicting claims of Appellant No. 14 to Appellant No. 19, fairly conceded that Appellant No. 1 to Appellant No. 13 are indeed covered in the ratio of the Suo moto case (supra) and are not barred by limitation and also meet the threshold as per Section 7 (1) of the Code. The Respondent also agreed that the case needs to be remanded back to the Adjudicating Authority.
33. The Appeal succeeds. The Impugned Order is set aside and original Company Petition filed by the Appellants, bearing Company Petition (IB) No. 361 of 2024 before the Adjudicating Authority is restored back. Both parties are Page 16 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024 directed to appear before the Adjudicating Authority on 26.09.2025. No cost. I.A., if any, are closed.
[Justice Rakesh Kumar Jain] Member (Judicial) [Justice Mohammad Faiz Alam Khan] Member (Judicial) [Mr. Naresh Salecha] Member (Technical) Sim Page 17 of 17