Indian Kanoon - Search engine for Indian Law

8.2. Thereafter, the appellant filed an application under Section 7 IBC before the NCLT. On 02.05.2019, the NCLT issued notice to Respondent No. 2 and directed filing of an affidavit of service, renotifying the case on 10.05.2019. The appellant served the complete set of the petition and documents on Respondent No. 2 through e-mail on 07.05.2019, and filed an affidavit of service along with a certificate under Section 65B of the Indian Evidence Act on 14.05.2019. Vide order dated 15.05.2019, the NCLT directed that the matter proceed ex parte as Respondent No. 2 failed to appear. Arguments were heard on 30.08.2019, and by order dated 17.09.2019, the NCLT admitted the Section 7 IBC petition and appointed an Interim Resolution Professional (IRP) to act in accordance with the Code.

9.3. The learned senior counsel further pointed out that during the pendency of the present appeal, another Section 7 IBC petition filed by Amit Joshi and others against the same Corporate Debtor was admitted by the NCLT on 28.03.2023 and a CIRP is presently ongoing. The appellant has already submitted her claim in those proceedings. She clarified that she does not seek revival of her original Section 7 IBC petition, but only challenges the erroneous finding of the NCLAT branding her as a “speculative investor”, which prejudices her rights in the ongoing CIRP and under other proceedings including those under the N. I. Act. 9.4. In view of this subsequent CIRP, it was submitted that it is not necessary for this Court to adjudicate on other issues raised in the first impugned order, including the maintainability of her Section 7 IBC application in light of the 2018 amendment to the IBC requiring a threshold number of homebuyers to initiate insolvency proceedings. For the same reason, the cross-appeals preferred by Shubha Sharma and Ashlesh Gupta also do not require consideration. 9.5. With these submissions, the learned senior counsel prayed that the impugned finding of the NCLAT describing the appellant as a “speculative investor” be set aside, she be recognised as a homebuyer and financial creditor under Section 5(8)(f) IBC, and she be treated at par with similarly situated allottees in the ongoing CIRP in Amit Joshi (supra).

16. In the present case, as indicated above, there are two impugned orders, whereby the NCLAT set aside the admission of Section 7 IBC applications by the NCLT, holding that the appellants in C.A. No. 3826 of 2020 and 3903 and 2022 viz., Mansi Brar Fernandes and Sunita Agarwal, respectively, were “speculative investors”. Further, in the first impugned order, the NCLAT held that the statutory requirements introduced by the Ordinance / Amendment Act were not applicable to the facts of the present case. It is however, undisputed that Section 7 IBC application filed by one Amit Joshi was admitted by the NCLT and that the CIRP is presently ongoing against the Corporate Debtor – Gayatri Infra Planner Pvt. Ltd.

17. In light of these facts, the following issues arise for consideration in these appeals:

(i) Whether the appellants, Mansi Brar Fernandes and Sunita Agarwal, fall within the category of “speculative investors” so as to disentitle them from initiating proceedings under Section 7 of the IBC?

(ii) Whether the Ordinance / Amendment Act introducing threshold requirements for filing of Section 7 IBC applications by allottees was applicable to the facts of the present case?