Document Fragment View

Matching Fragments

4. Shri Abhijeet Sinha, Learned Counsel appearing for the Appellant- 'Anand Infoedge Pvt. Ltd.' submits that the joint application filed by the allottees against three Appellants were not maintainable. All three Respondents to the Section 7 Application were separate corporate entities although joint application has been filed by the Applicants but there is no occasion to join the different companies as Respondents. Adjudicating Authority erred in overruling the objection of the Appellants. Adjudicating Authority has no jurisdiction to consolidate the process of insolvency of three separate companies at the stage of admission of the petition. Adjudicating Authority cannot initiate proceedings against three parties simultaneously when the debt is due against the one party and the default is done by another company. Applicants failed to prove any relationship existing between the Appellant Companies and the Applicants as Corporate Debtor- Financial Creditor relationship. The Appellant Company had not been party to the Builder Buyers' Agreement signed by the allottees with developer, hence, in the absence of any financial debt being due and payable the Appellant could not have been impleaded in application. In the present case, there was no transaction entered between the parties i.e. Appellant Companies and allottees. There was no commercial effect of borrowing between them, hence, there was no financial debt. There is no principal agent relationship between the parties and the application suffers from misjoinder of the parties. The Adjudicating Authority erred in consolidated the companies as three companies which do not pass any test mentioned by Company Appeal (AT) (Ins.) No.127 of 2023 & IA No.463 of 2023 With Company Appeal (AT) (Ins.) No.1478 of 2022 With Company Appeal (AT) (Ins.) No.1506 of 2022 & IA No.4895 of 2022 this Appellate Tribunal in case of "Radico Khaitan Ltd. vs. BT & FC Pvt. Ltd.- Company Appeal (AT) (Ins.) No.919 of 2020"

All contracts entered into by the Developer in this regard will be binding on the Owner.

This Collaboration agreement will not be treated as a partnership between the Owner and the Developer."

11. By the Collaboration Agreement, developer was authorised to develop the building and entitled to sell or recover 85% of the units constructed and was also entitled to sell the balance 15% of the units belonging to 'Anand Infoedge Pvt. Ltd.' on their behalf. 'Mist Avenue' in pursuance of the Development Agreement has allotted different units to the allottees who are Respondents herein. Copy of one Builder Buyers' Agreement has brought on record by the Appellant along with the additional documents filed on 03.02.2023. Builder Buyer Agreement entered between 'Mist Avenue' and one allottee Mr. Gaurav Bhardwaj who has allotted IT&ITES Shop(s) Number-43, Level- FCGF, Plot No.1, Sector 143 B, Noida, Uttar Pradesh. We also need to notice certain clauses of Builder Buyers' Agreement. The allotment was made for consideration as noticed in the agreement. With regard to possession, Clause 2 of the Builder Buyer Agreement provides as follows:-

Yours Truly For Mist Direct Sales Private Ltd.
(CRM TEAM)"

15. When we take a holistic view of the matter, it is clear that all three Appellants had joined hands to develop the project. Present is a case of Real Estate Project and the project cannot be successfully developed by any one of the Appellants who were Respondents in Section 7 application. Under the Collaboration Agreement, 'Anand Infoedge Pvt. Ltd.' and developers have Company Appeal (AT) (Ins.) No.127 of 2023 & IA No.463 of 2023 With Company Appeal (AT) (Ins.) No.1478 of 2022 With Company Appeal (AT) (Ins.) No.1506 of 2022 & IA No.4895 of 2022 undertaken several responsibilities towards the allottees. The construction of Real Estate Project will not be achieved in event joint insolvency is not initiated against all the three Corporate Debtors who are Appellants before us, the allottees will put to severe loss and hardship. CIRP in the Real Estate Project has different contours and ramification. It is also on the record that at a time when 2nd Collaboration Agreement was entered between 'Anand Infoedge Pvt. Ltd.'and 'Mist Direct', 'Anand Infoedge Pvt. Ltd.' has 99.99% shareholding in 'Mist Direct'. All three companies who are impleaded as Respondents in Section 7 Application and Appellants before us are closely connected with the construction and implementation of the project. The developer who have issued allotment letter and executed Builder Buyer Agreement was acting on behalf of 'Anand Infoedge Pvt. Ltd.' who has given authority to 'Mist Direct'.

34. The clause indicate that Company had to endeavour to complete the construction of the said IT Shop within a period of thirty six months with the grace period of 12 months from the date of the Builders Buyers Agreement. It further contemplated that in event the Company is unable to complete construction within time company was to pay Rs. 9 Sq. Ft. delay charges for the delayed period thus the cause of action continues with the allottees to even after expiry of 36 months and 12 months since the entitlement of the allottees to receive Rs. 9 per sq. ft. per annum delay charges was very much contemplated in the clause thus it cannot be said Company Appeal (AT) (Ins.) No.127 of 2023 & IA No.463 of 2023 With Company Appeal (AT) (Ins.) No.1478 of 2022 With Company Appeal (AT) (Ins.) No.1506 of 2022 & IA No.4895 of 2022 that if the allottees did not sue within a period of four years from date of agreement their right to sue came to an end. Right to sue continues since the allottees were fully entitled to sue the developer by claiming Rs. 9 Sq. Ft. per month delay charges. Thus when we look into the clause 2.1 of the Builder Buyers Agreement as noted above it is clear that the right to sue continues with the allottees even after expiry of period of 4 years from the date of builders buyers agreement admittedly project has not been completed by the Appellants and construction of units has not been completed nor any construction certificate has been obtained. In the facts of the present case, we are of the considered opinion that submissions of the Appellant that Applications of 18 allottees who is barred by time hence they should be excluded from number of 100 applicants has to be rejected.