National Company Law Appellate Tribunal
Prithvi Raj Kasana vs Kapil Arora & Ors on 4 June, 2019
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
NEW DELHI
Company Appeal (AT) (Insolvency) No. 211 of 2019
IN THE MATTER OF:
Prithvi Raj Kasana ...Appellant
Versus
Kapil Arora & Ors. ...Respondents
Present:
For Appellant : Mr. C. S. Gupta, Mr. Anand Shukla and Mr. Rakesh
Singh, Advocates
For 1st Respondent: Ms. Prachi Johri, Advocate
For 2nd Respondent : Dr. M.K. Pandey, Advocate for 'Resolution
Professional' - Mr. S.K. Bhatt
ORDER
04.06.2019 'Mr. Kapil Arora' filed an application under Section 7 of the 'Insolvency and Bankruptcy Code, 2016' (for short, 'the I&B Code') against 'Morpheus Developers Private Limited' (Corporate Debtor) which was admitted by the impugned order dated 12th February, 2019. The Appellant - Shareholder and Director of the 'Corporate Debtor' has preferred this appeal.
2. On 7th May, 2019, we allowed the parties to settle the matter taking into consideration that number of Allottees are dependent on the construction of the 'real estate'. During the pendency of the appeal, 'Resolution Professional' was allowed to ensure that the company remains a going concern and payment of wages to the employees / workmen and construction etc. do not suffer. On 21st May, 2019, learned counsel for the Appellant submitted that the parties have settled the matter and they were allowed to enclose the 'Terms of Settlement'.
23. An affidavit (vide Diary No. 12512) has been filed on behalf of the Appellant enclosing the 'Terms of Settlement'. By 'Settlement Agreement' dated 20th May, 2019, the Appellant settled the matter with Mr. Kapil Arora who had 18% share.
The 'Terms of Settlement' reads as under:
"SETTLEMENT AGREEMENT This Settlement Agreement is entered into at New Delhi on 20 day of May, 2019 (hereinafter "this Agreement"/ "this Settlement Agreement") BY AND BETWEEN Mr. Kapil Arora, s/o LATE SHRI ATAM PRAKASH ARORA, r/o B-134,SECTOR-30, NOIDA DISTRICT GAUTAM BUDH NAGAR (hereinafter referred to as 'FIRST PARTY', which expression shall, unless repugnant to or inconsistent with the context of meaning thereof, be deemed to include his successors, heirs and permitted assigns);
AND Mr. Prithvi Raj Kasana, S/o Shri Mani Ram Kasana R/o 12/2 BAN ROAD, SHIPRA SUN CITY, INDIRAPURAM, GHAZIABAD, UP, (hereinafter referred to as 'SECOND PARTY', which expression shall, unless repugnant to or inconsistent with the context of meaning thereof, be deemed to include its successors and permitted assigns); FIRST PARTY and SECOND PARTY are hereinafter collectively referred to as Parties and individually as Party.
Company Appeal (AT) (Insolvency) No. 211 of 2019 3 WHEREAS the SECOND PARTY is the Director and authorised signatory of a Company being Morpheus Developers Private Limited, a Private Limited Company incorporated under the provisions of the Companies Act, 1956 having Corporate Identity Number: U45200DL2012PTC240832 and having its Registered Office at 1 Main Road Maujpur, New Delhi 110053 (hereinafter "Morpheus").
WHEREAS there were defaults in repayment of financial debt by Morpheus to the FIRST PARTY.
WHEREAS in view of the defaults made by Morpheus, the FIRST PARTY initiated proceedings under the Insolvency and Bankruptcy Code, 2016 before the Hon'ble Adjudicating Authority being Hon'ble National Company Law Tribunal, Principal Bench, New Delhi. The proceedings against Morpheus came to be registered as CA. NO. (IB) 949(PB)/2018.
WHEREAS the Hon'ble Adjudicating Authority being Hon'ble National Company Law Tribunal, Principal Bench, New Delhi vide orders dated 12.02.2019 passed in CA. NO. (IB)949(PB)/2018 admitted Morpheus into insolvency.
WHEREAS the SECOND PARTY filed an appeal against order dated 12.02.2019 passed by Hon'ble National Company Law Tribunal, Principal Bench, New Delhi in CA. NO. (IB) 949(PB)/2018 before Hon'ble National Company Law Appellate Tribunal being Company Appeal (AT) (Insolvency) No. 211/2019 and the same is pending before the Company Appeal (AT) (Insolvency) No. 211 of 2019 4 Appellate Tribunal whereas parties have been directed to explore for settlement.
WHEREAS the Parties have met and have been able to reach an amicable settlement whereby the SECOND PARTY has agreed to pay off the financial debt of Morpheus and the FIRST PARTY has agreed to withdraw his claim under the Insolvency and Bankruptcy Code, 2016, strictly under the terms and conditions of this Agreement and applicable law.
WHEREAS the present Settlement Agreement is being signed in order to amicably resolve the matters and to ensure return of monies advanced by the FIRST PARTY.
NOW THEREFORE, in consideration thereof, the Parties agree as follows:
1. The Parties acknowledge that:
IN RESPECT OF MORPHEUS a. an amount of Rs.1,00,00,000/- (Rupees One Crore only) was advanced by the FIRST PARTY to Morpheus under Memorandum of Understanding dated 04.10.2015; b. the said principal sum paid by the FIRST PARTY was to bear time value in the form of assured returns for 12 months, after which the amount was to be returned by Morpheus to the FIRST PARTY;
c. Morpheus defaulted in re-payment and admits that part Principal Sum (Rs.50,00,000/-) Company Appeal (AT) (Insolvency) No. 211 of 2019 5 became liable to be paid along with interest to the FIRST PARTY.
2. In acknowledgement of its debt and in order to ensure the return of the money to the FIRST PARTY, the SECOND PARTY has agreed to pay a sum of Rs.50,00,000/- (Rupees Fifty Lakh only) to the FIRST PARTY in lieu of the principal sum outstanding. The SECOND PARTY has also agreed to pay interest and compensation on the said outstanding principal sum further amounting to Rs.87,50,000/- (Rupees Eighty Seven Lakh and Fifty Thousand only) as time value for the outstanding sum, in consideration of the extended time granted by the FIRST PARTY for repayment.
3. The SECOND PARTY hereby agree to pay and acknowledge their liability to pay the principal sum and interest value mentioned in clause 2 of this Agreement in the following manner:
Proposed Date of Amount to be paid
Payment (in Rupees)
20-05-2019 Rs.30,00,000/-
20-06-2019 Rs.20,00,000/-
20-05-2020 Rs.37,50,000/-
20-11-2020 Rs. 50,00,000/-
TOTAL Rs.1,37,50,000/-
The Parties have further agreed to secure the payment of the financial debt and interest mentioned in clause 2 as follows:
(a) The SECOND PARTY shall issue post dated cheques for the agreed dates of payments in the name of the FIRST PARTY and undertakes that Company Appeal (AT) (Insolvency) No. 211 of 2019 6 these cheques shall be honoured upon presentation on the said dates. In case of dishonour of any of the cheques, the SECOND PARTY will be liable to pay the entire cheque amount along with interest @ 24.00% per annum to the FIRST PARTY from the due date of payment up to the date of realisation of the instalment concerned. This Agreement shall act as acknowledgement of liability to pay on part of the SECOND PARTY and he shall be liable under civil, criminal or any other law for the time being in force at that time;
(b) The SECOND PARTY covenant and represent that they will secure this Agreement and payments to be made under this Agreement with the Residential Flats bearing unit numbers mentioned in Schedule I to this Agreement by earmarking these units towards repayment of debt and interest. In case of default in payment or under any of the terms of this Agreement, it shall be the sole discretion of the FIRST PARTY to take any remedy in law including insolvency proceedings against Morpheus and / or take the units mentioned in Schedule I to this Agreement allotted to him and/or both to the extent of the debt payable alongwith interest. The FIRST PARTY shall not sell, lease or further alienate the said units mentioned in Schedule I to this Agreement except in the case of default in payment of any instalment as laid out in clause 3 of this Agreement. In case payments have been received by the FIRST PARTY in part, the Flats mentioned in Schedule I shall be released to the Company Appeal (AT) (Insolvency) No. 211 of 2019 7 extent. The SECOND PARTY shall ensure that no third party rights are created on the said units mentioned in Schedule I to this Agreement till entire repayment of debt along with interest is made under this Agreement.
(c) The SECOND PARTY covenant and agree that Morpheus will have the Builder Buyer Agreements and Allotment Letters executed in favour of the FIRST PARTY for the units mentioned in Schedule I to this Agreement within 7 (seven) days of insolvency proceedings being dissolved by any competent Hon'ble Court/Authority/Tribunal/Appellate Tribunal against Morpheus. It shall be the responsibility of the SECOND PARTY to ensure builder buyer agreements are executed and allotment formalities are fulfilled in favor of the FIRST PARTY by Morpheus or any other entity, as required. In case of failure to execute the said Builder Buyer Agreements in favor of the FIRST PARTY, the same shall constitute default by the SECOND PARTY and the FIRST PARTY shall be free to undertake all legal remedies including reinstating the proceedings under the Insolvency and Bankruptcy Code, 2016 against Morpheus.
(d) In case payments are made by the SECOND PARTY in terms of clause 3 above, either in full or in part, the FIRST PARTY will release units mentioned in Schedule I of the equivalent value and the monies to be derived from taking over such units mentioned in Schedule I will reduce accordingly.
Company Appeal (AT) (Insolvency) No. 211 of 2019 8
4. The Parties shall make appropriate representation before the Hon'ble National Company Law Appellate Tribunal in the pending Appeal to ensure this Agreement is made part of the record and endeavor shall be made to get the order passed by Hon'ble Adjudicating Authority i.e., Hon'ble National Company Law Tribunal, Principal Bench, Delhi admitting insolvency set aside.
5. The Parties understand and agree that the SECOND PARTY shall bear the responsibility to place this Agreement before the Committee of Creditors of Morpheus and secure the necessary vote for ending the insolvency of Morpheus. The SECOND PARTY also undertakes the obligation to place on record this Agreement before the Hon'ble National Company Law Appellate Tribunal and the Hon'ble Supreme Court and/or any other Hon'ble Court/Authority/Tribunal/Appellate Tribunal to seek necessary order. The FIRST PARTY agrees to make all necessary statements before any Hon'ble Court/ Authority/Tribunal/Appellate Tribunal in regard to the present settlement and terms thereof and to withdraw his claim after receipt of first instalment of repayment as scheduled in clause 3 of this Agreement.
6. The Parties agree and covenant that neither the SECOND PARTY nor anyone related to or acting through the SECOND PARTY shall take any action to defeat the rights of the FIRST PARTY. This Agreement shall be binding on the Parties and shall remain binding irrespective of orders to be passed in Writ Petition (C) No. 454/2019 pending before the Hon'ble Company Appeal (AT) (Insolvency) No. 211 of 2019 9 Supreme Court whereby the SECOND PARTY has challenged validity of certain clauses of the Insolvency and Bankruptcy Code, 2016. The SECOND PARTY covenants that it has not sought and undertakes not to seek any specific remedy against the FIRST PARTY in Writ Petition (C) NO. 454/2019 pending before the Hon'ble Supreme Court of India.
7. It is made clear and is understood by the parties that present Settlement Agreement will be effective and implemented only after the Insolvency Proceedings against Morpheus are terminated and / or closed and / or order dated 12-02-2019 is set aside. The first instalment dated 20.05.2019 will be paid in the form of a cheque issued by the SECOND PARTY that the SECOND PARTY will keep alive (by replacing the same every 3 months) till such time as
8. This Agreement becomes effective. The timeline for the other instalments shall stand extended by as many number of days as the first instalment is extended beyond 20.05.2019.
9. In case of any default in repayment under clause 3 of this Agreement or any other default in following the terms of this Agreement, the FIRST PARTY shall be entitled to seek revival of its claims against Morpheus and to reinstate proceedings inter alia under the Insolvency and Bankruptcy Code, 2016 or any other law for the time being in force against Morpheus.
10. This Settlement Agreement is being agreed to and executed in supersession of all previous agreements and understanding between the Parties.
Company Appeal (AT) (Insolvency) No. 211 of 2019 10
11. This Settlement Agreement shall be governed by and construed exclusively in accordance with the laws of India and the courts at New Delhi shall have exclusive jurisdiction.
12. The FIRST PARTY and SECOND PARTY both jointly in equal portion agrees to bear the costs and expenses of execution of this Settlement Agreement.
13. This Settlement Agreement is being executed in two counterparts each of which constitutes original.
In witness whereof the Parties have caused this Settlement Agreement to be duly executed by themselves on the date and year first hereinabove written.
MR. KAPIL ARORA (FIRST PARTY)
Date and Place 20/5/19 NOIDA
MR. PRITHVI RAJ KASANA (SECOND PARTY) Date and Place 20/5/2019 NOIDA"
SCHEDULE I Units to be allotted to the FIRST PARTY within 7 days of dissolution of insolvency proceedings against Morpheus (FLATS TOWARDS REPAYMENT OF MORPHEUS) Sl. Name of Unit Tower Area Rate Total No. Project No. Rs.
1. Morpheus 2406 1 1,170 28.30 33,11,100/-
Pratiksha
2. Morpheus 2407 1 1,170 28.30 33,11,100/-
Pratiksha
3. Morpheus 2408 1 960 28.30 27,16,800/-
Pratiksha
TOTAL 93,39,000/=
Company Appeal (AT) (Insolvency) No. 211 of 2019 11 Units to be allotted to the FIRST PARTY within 7 days of dissolution of insolvency proceedings against Morpheus (FLATS TOWARDS REPAYMENT OF VYOM) Sl. Name of Unit Tower Area Rate Total No. Project No. Rs.
1. Morpheus 2003 1 1,170 28.30 33,11,110/-
Pratiksha
2. Morpheus 1903 2 1,170 28.30 33,11,100/-
Pratiksha
3. Morpheus 2102 1 1,170 28.30 33,11,100/-
Pratiksha
4. Morpheus 2402 1 1,170 28.30 33,11,100/-
Pratiksha
TOTAL 1,32,44,400/
-
4. By another 'Settlement Agreement' reached on 30th May, 2019, reads as follows:
"SETTLEMENT AGREEMENT (FOR Withdrawal of case as per sec-12A of IBC- 2016 and its regulation) This Settlement Agreement is made and entered into this 30th day of MAY, 2019 BY & BETWEEN:
Morpheus Developers Private Limited, (CIN : U45200DL2012PYC240832) having its registered office at GH-16A, Sector-01, Greater Noida (West), U.P represented through its currently suspended Managing Director Mr. Prithvi Raj Kasana, MD, and Rakesh Singh, CEO, Morpheus Developers Private Limited, and Terms Tower B1, B2, ..B10 refers the Tower B1 & so on, of the project (hereinafter referred as Builder (MDPL) which expression unless repugnant to the context and meaning thereof shall deem to mean and Company Appeal (AT) (Insolvency) No. 211 of 2019 12 include their legal heirs, legal representatives, successors, assigns, representatives, nominees, administrators, successors, permitted assigns etc. as the case may be being the Party of the FIRST PART);
AND Buyer(s) means a Flat Buyer(s) in Morpheus Pratiksha Project (Part of COC (1-54) List enclosed as admitted by IRP as per sec-18 & 21 of IBC-2016 through Authorised Representative as per appointed by Home buyer as per Public announcement made by IRP and further appointed by NCLT as per IBC-2016 Mr. IP NAVJIT SINGH (Hereinafter referred as MDPL (HB) (1-
54) list enclosed and MDPL (HB) (1-54) which expression unless repugnant to the context and meaning thereof shall deem to mean and include their legal heirs, legal representatives, successors, assigns, representatives, nominees, administrators, successors, permitted assigns etc. as the case may be being the Party of the SECOND PART;).
That MDPL & MDPL (HB) (1-54) holding 82% share of COC Constitute by IRP as per sec-21 of IBC-2016 shall be individually referred to herein as "Party" and collectively as the "Parties".
WHEREAS, MDPL & MDPL (HB) (1-54) have entered into the Settlement Agreement on 30th May 2019 (hereinafter called Settlement Agreement) and an application under Section 12 A was filed by the Mr. Kapil Arora, Applicant with Hon'ble National Company Law Appellant Tribunal, New Delhi (hereinafter called as Hon'ble NCLAT) for withdrawal of application admitted under Section 7 of the IBC and the next date of hearing fixed on 3rd June 2019 order by the Hon'ble NCLAT.
Company Appeal (AT) (Insolvency) No. 211 of 2019 13 WHEREAS, MDPL (HB) (1-54) has requested the Authorized representative as appointed by NCLT as home buyer class (AR) as per IBC-2016 to submit this settlement Agreement from MDPL before Hon'ble NCLAT on 3rd June 2019 with voting outcome from electronic means from voting agency of his class of creditors i.e. MDPL (HB) (1-54) as per regulation 26 of insolvency resolution regulations 2016 for individual approval of this settlement agreement or/and against voting pattern consolidated 82% voting share in this case COC as constituted by IRP as per sec-21 of IBC-2016 its consolidated outcome voting patter of favour and against this settlement agreement, NOW THEREFORE, after observing the above circumstances, it is hereby agreed by and between the parties hereto as follows:
Definitions:
● The term "Morpheus" would mean the Company Morpheus Developers Private Limited. ● Terms Tower B1, B2,..B10 refers the Tower B1 & so on, of the project "Morpheus Pratiksha", GH-16A, Sector-01, Greater Noida (West), U.P., which is under construction by Morpheus Developers Private Limited. ● The term Phase-1 includes Towers B1-B6 and Phase-2 indicates Towers B7-B10.
● The term Buyer(s) means a Flat Buyer(s) in Morpheus Pratiksha Project.
● The term MCLR stands for Marginal Cost of funds-based Lending Rate and is the benchmark lending rate of the Banks, it may vary from Bank to Bank. Therefore, to make the process simple, Current MCLR of SBI, which is Company Appeal (AT) (Insolvency) No. 211 of 2019 14 8.65% for tenure more than 2 years, shall be considered for calculation of interest.
Terms and condition of this settlement agreement This settlement agreement shall be binding on both the parties subject to the order of Hon'ble NCLAT.
1. Morpheus will offer possession as per below schedule... Tower B1&B2 March'2020 Tower B3&B4 November'2020 Tower B5&B6 July'2020 However, the above schedule is only for the purpose of getting a firm construction plan and has checks on the progress of the projects. For any other purposes, including calculation of Delay Possession compensation to buyers, the promised date of possession in BBA shall only be considered.
However for those buyers who booked flat in pre-launch stage and could not sign BBA till date due to dispute with Morpheus, (3-years from the date of approval of the project OR 3-years from the date of 10% payments to Morpheus, whichever is later), shall be considered for calculation of delayed compensation amount.
2. Morpheus will offer the buyers of B7-B10 (phase-2) to transfer their booking to Phase-1 (Tower B1-B6), at the same rate of booking. Total delay possession penalty up to the date of re- allotment against the allotment of Phase-2 flat shall be adjusted at the time of making new agreement upfront.
Morpheus will offer an exit option for the buyers of Phase-2, who...EITHER would not be accommodated in phase-1 due to inventory issues OR do not want to transfer their flat bookings to Phase-1.
Company Appeal (AT) (Insolvency) No. 211 of 2019 15 In such cases, Morpheus will refund the deposited amount with simple interest, at the rates of MCLR +1% as per RERA for the period from the date of actual booking till the date of refund. In case the REFUND is made in instalments the compensation shall be calculated till the date of actual REFUND amount against each instalment of Refund. Refund would be paid after 30th June-2020 and before 31st December'2020.
In case any buyer wants to retain its allotment in phase-2, Morpheus will start construction of Phase-2, immediately after completion of phase-1 and the plan for the same shall be shared with buyers in due course of time. The delay possession compensation for the delay period shall be calculated as per the details mentioned in S.No. 12 of this Agreement.
Morpheus will ensure with utmost care to the buyers of the Phase-2 (Towers B7 to B10) that the flats offered to them in Phase-1(Towers B1 to B6) will be free from any obligations and dispute.
3. Morpheus will start construction from 1st July-2019.
4. Buyers will form a Buyer committee and Sub-Committee for Review financial data and construction planning and progress.
5. To resume the construction activities in a sustainable manner, Morpheus shall arrange for mobilisation funds for at least 5- months of constructions activities as per detailed construction schedule and fund flows attached herewith as Annexure-I. The fund flow/projection includes pending fund inflows, detailed liabilities including the Credit Notes issued to buyers, Company Appeal (AT) (Insolvency) No. 211 of 2019 16 penalty recoverable from buyers and penalty payable to buyers, etc. same has been reviewed & verified suitably by the buyer committee.
6. Morpheus will provide monthly cash flow and intake plan for each Tower and it will be open for review in monthly Builder - Buyer Committee meetings.
7. Morpheus will provide monthly construction plan for each Tower and it will be open for review in monthly Builder - Buyer Committee meetings.
8. All future payments shall be made in ESCROW account and same account number shall be informed to RERA.
9. Buyers will make all future Payments after confirmation from Buyer committee.
10. For the first 3 months after start of construction, buyers will not have to pay any demand to Morpheus. Buyer committee will review construction during these 3 months before giving any recommendation for making any payment. The recommendation of Buyer Committee shall be binding to Morpheus.
11. Morpheus will not charge any Delay Payment Penalty for current outstanding payment/demands, if buyer clears all dues within 2-months from the date of clearance/recommendation from buyer committee. Same shall also be subject to disbursal of payment from bank, in case of home loan availed by the buyers.
12. Delay Possession Compensation Rate (Payable to buyers by builder for delay in possession) and Delay Payment Penalty Rate (payable to builder by buyer for delay in due payments) shall be MCLR +1% as per RERA.
Company Appeal (AT) (Insolvency) No. 211 of 2019 17
13. Morpheus will offer Possession of Towers after obtaining OC from Greater Noida Authority. The offer of possession letter should be sent along with OC Certificate.
14. Morpheus will not increase Super area at the time of possession, unless BBA mentions about increase of Carpet Area/Build-up area.
15. The agreement/commitments made above will be applicable even after dissolving of COC and subsequent NCLT Proceedings, with respect to the said Project.
16. This Agreement is made, taking COC/Buyers into confidence for carrying out construction work to deliver flats to buyers by Morpheus, Therefore options for Any Change in the Primary ownership for Morpheus Pratiksha project shall not be exercised.
17. In case of any conflict of terms with the BBA, the terms in this Agreement will prevail.
This Agreement is signed at NOIDA (Place) and on 30TH May, 2019 by...
IN WITNESS whereof this Settlement Agreement has been entered into on the date first above written.
SUBMITTED: - Through AR (IP NAVJIT SINGH) OF MDPL (HB) (1-54) List enclosed Before Honorable NCLAT.
(Rakesh Singh) (Prithvi Raj Kasana) Chief Executive Officer Suspended Managing Director Morpheus Developer Private Limited Morpheus Developer Private Ltd.-
(First Party) And MDPL(HB) (1-54) Home buyer reprehensive by AR having 82% voting Company Appeal (AT) (Insolvency) No. 211 of 2019 18 power as per COC constituted in this case by IRP as per Sec-21 of IBC- 2016 (voting consolidate outcome list)-enclosed as per regulation 26 of Insolvency resolution regulation regulations 2016.
Home Buyer(s) List
S.No. Name Signature
1 Neelam Jawla
Shrey Prakash & Manju Kumari
2 Sinha
Ram Prakash & Manju Kumari
3 Sinha
4 Anant Kumar Singh
Saurabh Sitesh & Parinita
5 Bhushan
6 Ayush Raivari And Sonal Gupta
Rakesh Kumar and Peratibha
7 Singh
8 Fahmi Azhar
Sanjeev Kuamr Singh and Shivji
9 Singh
10 Ashutosh Bhushan Mishra
11 Faraaz Azhar
12 Devinder Rawat and Alka Rawat
13 Saras Kamal
Ved Prakash Mittal, Marv Mittal,
14 Pinky Mittal
15 Paratibha sinha & shanti Sihna
16 Vivek Kukrety
17 Studipto Mukherjee
18 Mr. Jatin Bachani
19 Nisha Chelani
Amit Kumar Tiwari &
20 Mrs.Ragini Tiwari
Company Appeal (AT) (Insolvency) No. 211 of 2019 19 INDER PREET SINGH SACHDEVA & AMANPREET 21 KAUR Shashi Bala Kaura & Deepak 22 Kaura 23 Parvez khan Manish Singh Bhandari & 24 Guddi Bhandari Pankaj Verma & Bhawana 25 Pankaj 26 Sanjay Kumar Tiwari 27 Neeraj Jain & Ashima Gupta 28 Himanhu Agrahari Sachindra Mohan Garg & 29 Anchal Garg 30 Amit Puri & Shalini Puri 31 Shikha Gulati Manish Srivastava & Abha 32 Srivastava Jyotsna Srivastava W/O Niraj 33 Kumar 34 Kali Dutt 35 Vinod Kumar & Shashi Bala Anup Kumar Dutta & Keka 36 Dutta Syed rashid kamal husain, syed 37 haroon rashid 38 Varun Kumar& Sadhna Rani 39 Ashutosh Mishra MRS. Shashi Sharma & Sachin 40 Sharma 41 Varun Kochhar Smt. Poonam Rani Rajoria, & 42 lakhmi Singh Company Appeal (AT) (Insolvency) No. 211 of 2019 20 43 Archana Kumari, Sunil Kumar 44 Kishor Kumar 45 Harish Naiwal Nitin Madhok & Priyanka 46 Madhok 47 Manish Kumar Srivastva Kusum Rawat and Kundan 48 Singh Rawat 49 Deepak Mallick 50 Rajeev Kansal 51 Anamika kansal 52 Aayam Gupta & Sandhya Gupta Shailesh Sharma & Seema 53 Sharma Rakesh Kumar Gupta & Monika 54 gupta Date: - 30/05/2019 Place: - NOIDA Annexure - 1 PROJECT: MORPHEUS PRATIKSHA
- GH 16A, SECTOR - 01, GREATER NOIDA - UTTAR PRADESH BROAD OUTLINE OF THE PROJECT AND TENTATIVE COMPLETION SCHEDULE AND CASH FLOWS :
Date of Start of Project Size of Project (Phase I and Phase II) No of Towers in Phase - I B-1 to B-6 No of Towers in Phase - II No of Flats in Phase - I 856 No of Total Flats in Phase - I to be constructed 856 No of Flats already Booked 795 Company Appeal (AT) (Insolvency) No. 211 of 2019 21 Un-booked Flats 61 STAGE OF CONSTRUCTION & COMPLETION OF B-1 TO B-6 TOWERS Tower Tower Tower Tower Tower Tower B-1 B-2 B-3 B-4 B-5 B-6 1 Structure upto 11th Done Done Done Done Done Done . Floor 2 Structure upto 12th Done Done Done -- Done Done . Floor 3 Structure upto Done Done Done -- Done Done . 13thFloor 4 Structure Completed Done Done -- -- 95% 95% .
TENTATIVE COST TO BE INCURRED : (AMT IN Rs) Tower Tower Tower Tower Tower Tower B-1 B-2 B-3 B-4 B-5 B-6 RCC 1852000 800000 29500000 29500000 1500000 2967000 Brick work 2795000 1800000 4900000 6130000 1050000 1123500 Railing 1163000 900000 2100000 2100000 640000 1200000 Internal Plaster 3900000 2550000 10500000 11500000 3122000 3150000 Door Frame (Chowkh at) 988000 410000 1118000 1088000 430000 600000 Plumbing 6300000 4300000 9300000 9300000 2154000 2134000 Outer Plaster 5250000 4100000 7800000 7500000 5100000 5300000 Parapet 400000 300000 400000 400000 400000 400000 Fire 5000000 4000000 5000000 5000000 5000000 5000000 Lift 8800000 6600000 8800000 8800000 6600000 6600000 Finishing 70200000 47500000 75200000 78900000 57300000 52600000 Company Appeal (AT) (Insolvency) No. 211 of 2019 22 TOTAL 16021800 106648000 73260000 154618000 0 83296000 81074500 TOTAL 659114500 Total area cost with finishing 659114500 Non tower area 102500000 STP & WTP 26000000 Electrical Hub 81000000 Landscaping 20000000 G.TOTAL 888614500 PROSPECTIVE CASH FLOWS TO COMPLETE THE PROJECT Amt (In Rs) CASH INFLOWS :
1 Balance Demand Receivables from customers of tower B-1 to 1059109 B-6 091 2 3500000 From Commercial Space (Unsold) 00 3 1050000 From Unsold Covered car parking 00 4 Additional charges from customers for power back, load 1375000 Extention, Lease Rent etc 00 5 5000000 Receivables from membership charges 0 6 3000000 Investor Financial Assistance for Construction 00 2001609 Total Inflows 091 CASH OUTFLOWS (PHASE - 1) 1 8886145 Construction Costs to be incurred after 12th feb 2019 00 2 Land Cost to authority to get completion certificate and 4000000 occupancy certificate 00 3 Return to Investor against investment of 30cr @22% p.a. For 9900000 1.5 Years 0 4 3000000 Principle payment of investor 00 Company Appeal (AT) (Insolvency) No. 211 of 2019 23 5 1320000 Administration Cost 00 6 2240000 Selling & Marketing Exp 0 1842014 Total Outflows 500 1595945 NET SURPLUS TO BE USED FOR PHASE - 2 CONSTUCTION 91 TENTATIVE DATE OF HANDING OVER POSSESSION Tower Tower Tower Tower Tower Tower B-1 B-2 B-3 B-4 B-5 B-6 Handing March March Nov Nov July July Over 2020 2020 2020 2020 2020 2020 Possession
5. Mr. Navjit Singh, who represented 54 allottees, submits that apart from 18% voting share of Mr. Kapil Arora, 82% voting shares of rest of the allottees have been obtained by e-voting who supported the 'Settlement Agreement'. The copy of the e-voting for settlement has been enclosed, which reads as follows:
Company Appeal (AT) (Insolvency) No. 211 of 2019 24 Company Appeal (AT) (Insolvency) No. 211 of 2019 25
6. It is informed that 100% allottees have agreed with the 'Terms of Settlement'.
7. Dr. M.K. Pandey, Advocate appears on behalf of the 'Resolution Professional' - 'Mr. S.K. Bhatt'. He submits that no payment has been made to the 'Interim Resolution Professional' and the present 'Resolution Professional' including the resolution cost.
8. Ms. Prachi Johri, learned counsel appears on behalf of Mr. Kapil Arora -
'Financial Creditor'. She submits that though the Respondent is reached for settlement but in case the 'Corporate Debtor' fails to comply with the 'Terms of Settlement', liberty should be given to revive the prayer for revival and continuation of 'Corporate Insolvency Resolution Process' against the 'Corporate Debtor'. Same prayer has also been made by Mr. Navjit Singh, 'AR', appearing on behalf of the 82% shares of 'Financial Creditors' (Allottees).
9. Taking into consideration the development, facts and circumstances of the case, we set aside the impugned order dated 12th February, 2019 and allow Mr. Kapil Arora and rest of the Allottees to withdraw the application under Section 7 of the 'I&B Code' with liberty to pray for revival and continuation of 'Corporate Insolvency Resolution Process' against the 'Corporate Debtor' - 'Morpheus Developers Private Limited' if the 'Terms of Settlement' is violated; in case the 'Terms of Settlement' is not complied with in its letter and spirit and it will also be open to file a petition for contempt proceedings and for action in accordance with law against the Directors of the 'Corporate Debtor'. So far as the fee of the 'Interim Resolution Process / Resolution Process and cost of resolution process is concerned, the matter is remitted to the Adjudicating Authority, Principal Bench, New Delhi to determine the claim and fix the fee payable to the 'Interim Company Appeal (AT) (Insolvency) No. 211 of 2019 26 Resolution Professional' and present 'Resolution Professional' and resolution cost payable to one or other IRP / RP. On such determination, the amount is to be paid by the 'Corporate Debtor' - 'Morpheus Developers Private Limited' within the period as may be prescribed by the Adjudicating Authority.
10. In the result, the appeal is allowed with aforesaid liberty.
In effect, order (s) passed by Ld. Adjudicating Authority appointing 'Interim Resolution Professional', declaring moratorium and all other order (s) passed by Adjudicating Authority pursuant to impugned order and action taken by the 'Resolution Professional' are set aside. The application preferred by the 1st Respondent under Section 7 of the I&B Code is disposed of as withdrawn with liberty as mentioned above. The Adjudicating Authority will now close the proceeding. The 2nd Respondent Company is released from all the rigour of law and is allowed to function independently through its Board of Directors from immediate effect.
The appeal is allowed with aforesaid observations and directions. No costs.
[Justice S.J. Mukhopadhaya] Chairperson [ Justice A.I.S. Cheema ] Member (Judicial) [ Kanthi Narahari ] Member (Technical) /ns/gc Company Appeal (AT) (Insolvency) No. 211 of 2019