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(v) On 26.02.2020, Noida Authority called upon the Wave Megacity to make payment of Rs.2717,53,65,192/-, which included balance premium, ground rent etc. Noida Authority vide letter dated 18.03.2020 shared the calculation sheet with the Wave Megacity providing the breakup of the total amount. The Noida Authority on 17.07.2020 requested Wave Megacity to pay different sums, which included demand of Rs.32,47,09,936/- towards ground rent for 56,000 sq. mtrs of land.

3. We have heard Shri ANS Nadkarni, learned Senior Counsel for the Appellant; Shri Sanjiv Sen, learned Senior Counsel appearing for Noida Authority; Shri M.L. Lahoti, learned Senior Counsel appearing for Homebuyers Association. We have also heard Mr. Ratnesh Sharma, Rahul Raman, Shri Krishna Mohan and other learned Counsel for Homebuyers Association.

4. Shri Nandkarani, learned Senior Counsel for the Appellant challenging the impugned order submits that Adjudicating Authority committed error in rejecting Section 10 Application filed by the Corporate Debtor, which was filed on the ground of default of the Corporate Debtor in paying the dues of Noida Authority and the pre-conditions as mentioned in Section 10 of the Code, having been fulfilled, Section 10 Application ought to have been admitted. It is submitted that debts of the Noida Authority have been reflected in the Books of account of the Appellant and is also proved by the demand notices dated 26.02.2022 and notices issued thereafter. The Adjudicating Authority has nowhere examined the very existence of debt and default in the impugned order. The pendency of any criminal investigation against the Corporate Debtor has no bearing on Section 10 petition. Further, pendency of litigations against the Corporate Debtor in different Forums do not have any adverse effect on maintainability of Section 10 Application. The very purpose of Code is to protect and preserve the valuation/ assets of the Corporate Debtor. Only few handful of the allottees had filed objections opposing the Application, Company Appeal (AT) (Insolvency) No. 918 of 2022 7 whereas majority of the Homebuyers would have benefited from the initiation of the CIRP. Even if, any dispute is pending with regard to quantum of debt, the same is not bar for filing Section 10 Application. Under Section 10, the Adjudicating Authority is only required to examine the existence of subsisting debt and default and Application being complete, it was required to be admitted. The impugned order fails to protect the interest of the Homebuyers. Delaying the commencement of the CIRP only leads to erosion of the assets/ valuation of the Appellant. The Homebuyers interests can only be protected under the CIRP, through an appropriate Resolution Plan under the Code. It is submitted that apart from receiving amounts from the Homebuyers, the Appellant has utilized its own huge funds for carrying out the construction. From the allottees an amount of Rs.1398 crores were received, whereas the amount spent is more than Rs.3000 crores. The Corporate Debtor being unable to pay the dues of the Noida Authority has rightly approached the Adjudicating Authority for admitting Section 10 Application. The Appellant business has come to complete halt, as it is neither able to deliver possession of the units and receive funds upon delivery of possession, nor can it complete construction of the remaining unit. The Appellant having no other recourse but to seek commencement of the CIRP, has filed Section 10 Application. It is submitted that allegation of the Applicants, who had filed Application under Section 65 that initiation of Section 10 Application was with malafide intention is incorrect and false. The Application under Section 10 was filed on genuine grounds and Adjudicating Authority committed error in Company Appeal (AT) (Insolvency) No. 918 of 2022 8 rejecting the Section 10 Application. The Adjudicating Authority has come to an erroneous conclusion. The resignation of Directors of the Corporate Debtor is of no consequence to commencement of the CIRP under Section 10 of the Code. The directions issued under Section 210(2) of the Companies Act for investigation is without following due process. The Application was not barred by Section 10A of the Code, since demand notices were issued prior to 25.03.2020.

5. Shri Sanjiv Sen, learned Senior Counsel appearing for the Noida Authority refuting the submissions of the Counsel for the Appellant submits that the Application under Section 10 filed by the Appellant was barred by Section 10A of the Code. It is submitted that after order passed by the State Government under Section 41 of the Uttar Pradesh Urban Planning and Development Act, 1973 vide order dated 17.11.2020, the Noida Authority revised the payment and final demand notice was issued on 24.12.2020. The final demand notice being dated 24.12.2020, which is during the prohibited period as per Section 10A, no Application under Section 10 could have been filed by the Appellant. The proceedings under Section 10 being proceeding in rem, both Financial Creditor and Operational Creditor can object to the very admission of the Application. The Noida Authority has filed detailed objection before the Adjudicating Authority, opposing admission of Section 10 Application. Section 10 Application was filed by the Appellant prematurely since the Appellant had not exhausted the remedy available to it under Section 41 of the Uttar Pradesh Urban Planning and Development Act, 1973 and Section 12 of the Company Appeal (AT) (Insolvency) No. 918 of 2022 9 Uttar Pradesh Industrial Development Act, 1976. Default alleged by the Wave Megacity was not genuine and the same is motivated by fraud. Noida Authority is proper and necessary party to the proceeding. Noida Authority vide IA No.4270 of 2021 has raised objection to the maintainability of the Section 10 Application. Noida Authority has also filed its written submissions stating that default leading to filing of Section 10 Application, occurred during period 24.12.2020 to 11.02.2021, i.e. after issuance of the final demand notices dated 24.12.2020 and subsequent cancellation of the allotment of an area of land admeasuring 1,08,421.13 sq. mtrs. vide letter dated 11.02.2021.

6. The learned Counsel appearing for Homebuyers Association have also strenuously opposed the admission of Section 10 Application. The Learned Counsel for Homebuyers Association submit that Appellant, who had launched multiple residential/ commercial project in the year 2012 for which possession were to be handed over by 2016, failed to handover the possession. The 90% of the consideration from majority of the Homebuyers were received even before 2016. The Appellant siphoned off huge amount from the Homebuyers and utilized the monies received from the Homebuyers for other purposes. The wrongful malpractices were adopted by the Appellant. Several Projects launched by the Appellant are incomplete. Securing the interest of the allottees was the least of the priorities of the Appellant. The Application under Section 10 was filed with fraudulent intent and the purpose for filing the Application was to save the Appellant from liabilities and prosecution. The Appellant did not challenge Company Appeal (AT) (Insolvency) No. 918 of 2022 10 the final demand notice issued by Noida Authority, nor challenged the cancellation of plot by Noida Authority, which indicate their lack of interest in contesting the demand of Noida Authority, whereas the Homebuyers, who have filed writ petition in Allahabad High Court being Writ Petition No.13358 of 2021 disputing Noida Authority's exorbitant demand and cancellation of allotments and refusal to execute sub-lease with the Respondent Association. It is submitted that Application under Section 10 is barred by Section 10A. It is further submitted that malicious intent of the Appellant is evident from the fact that the Directors of the Appellant Manpreet Singh Chadha and Charanjeet Singh, who were continuing from the very inception of the Corporate Debtor, have suddenly resigned before filing Section 10 Application. It is further submitted that Manpreet Singh Chaddha, Director has been transposed as Financial Creditor, which indicate the malicious intent of the Corporate Debtor. The Section 10 Application has not been filed for any genuine resolution of the insolvency of the Corporate Debtor, rather the same was filed with intent to save the Appellant from its responsibilities, liabilities and prosecution. The Adjudicating Authority has rightly allowed the Applications filed under Section 65 of the Code by the Homebuyers and rejected the Section 10 Application, which does not warrant any interference by this Appellate Tribunal.