Ajay Kumar Nauriya & Anr. vs Dream Procon Pvt. Ltd. & Ors.

Per: Justice Rakesh Kumar Jain:

This appeal is directed against the order dated 11.08.2023 by which an application filed by the Appellants bearing I.A No. 3764 of 2021 in I.B No. 1771/ND/2018 for issuance of a direction to the RP to admit their claim, has been rejected.

In brief, both the Appellants are husband and wife who have jointly applied for allotment of a unit in the project of Dream Procon Pvt. Ltd. (CD) by the name of ‘Victory Ace’ situated at Plot No. GH-02, Sector 143, Noida. They were allotted unit B1-502 in the said project by the allotment letter dated 20.08.2013. The allotment letter was revised and by an allotment letter dated 29.08.2016, the unit of the Appellant was changed to A-2 1003 in the said project for total base sale price of Rs. 68,11,550/-which was to be paid as per construction linked plan.

The Appellants availed the loan of Rs. 42,83,640/- from ICICI Bank for the said unit and paid a total sum of Rs. 55,31,705/- to the CD till 2016. The construction of the unit was not completed in time but the Appellant had to regularly pay the EMIs to ICICI Bank.

The CD was pushed into CIRP vide order dated 06.09.2019. The IRP made public announcement in Form A on 17.10.2019 but the Appellant missed the advertisement. No communication was made by the IRP and after few weeks Covid 19 hit the country and lockdown was ordered.

The Appellant No. 1 suffers from vision handicap in both eyes on account of Covid-19 as a result of which he has been assessed to be 90% visually handicapped.

As soon as, the appellant came to know that the CD is facing CIRP, they submitted their claim in Form CA on 19.07.2021 for an amount of Rs. 1,29,82,922.03 which included the principal and the interest but the RP rejected their claim vide his email dated 06.08.2021 on the ground that since the resolution plan submitted by R2 has been approved by the CoC, therefore, their claim cannot be admitted.

It is pertinent to note that on the website of the CD, the name of the Appellants and details of unit allotted to them was shown under the list of creditors (allottees) who had not filed their claim and the list of creditors is part of IM prepared by the RP.

The Appellants challenged the order in I.A No. 3764 of 2021 but the Tribunal dismissed their application vide the impugned order dated 11.08.2023 relying upon a decision of this Court in the case of Puneet Kaur Vs. K V Developers Pvt. Ltd. & Ors. on the ground that the claim submitted belatedly after the approval of the plan by the CoC cannot be entertained.

Counsel for the Appellant has submitted that the Tribunal has committed an error in misreading the decision in the case of Puneet Kaur (Supra) because in the very same judgment in para 27, this court has held that if the claim of the homebuyers is reflected in the record of the CD in the IM then it ought to have been taken note of the said liability by the RP and should have appropriately dealt with in the resolution plan.

He has further submitted that this court had issued direction in the case of Puneet Kaur (Supra) to the RP to submit the details of the homebuyers whose details are reflected in the records of the CD to the RA, on the basis of which shall prepare the addendum to the resolution plan and place before the CoC for consideration.

On the other hand, Counsel for the Respondent has admitted the allotment of unit to the Appellants but it is submitted that the claim has been filed belatedly after the approval of the resolution plan by the CoC which cannot be considered. It is alleged that the insolvency proceedings in this case had commenced on 06.09.2019 and the last date for submission of claim was 29.10.2019. The resolution plan was presented on 01.03.2021, whereinafter the plan was put to vote and approved during the period 07.05.2021 to 15.05.2021. The Appellant has belatedly filed the claim after the approval of plan by CoC on 16.07.2021 on Form CA which has been rejected by the RP rightly on 06.08.2021 because it was filed after the delay of 536 days from the issuance of Form A and 62 days after the approval of the resolution plan by the CoC.

According to the Respondent, the case is covered by the decision of this Court in the case of Pooja Mehra Vs. Nilesh Sharma, CA (AT) (Ins) No. 1511 of 2023 and the decision of the Hon’ble Supreme Court in the case of RPS International Limited Vs. Mukul Kumar & Ors., (2023) 10 SCC 718 in which the Hon’ble Supreme Court has held that after the plan is approved by the CoC though pending before the AA for approval, the claim cannot be admitted.

We have heard Counsel for the parties and perused the record.

There is no dispute that the liability of the CD towards the Appellant is clearly reflected in the IM. The appellant has also filed the claim belatedly and the CoC has approved the plan but the plan has not been approved by the Adjudicating Authority so far as it is pending for its consideration. The appellant has basically relied upon a decision in the case of Puneet Kaur (Supra) in which this court has held that “in the preset case there is no denial that details of the Appellant(s) and other homebuyers, who could not file their claims has not been reflected in the IM. There being no detail of claims of the appellant(s), the resolution applicant could not have been taken any consideration of the claim of the appellant(s), hence, resolution plan as submitted by resolution applicant cannot be faulted”. However, at the same, in the case of Puneet Kaur (Supra) this court has held that “however, we are of the view that the claim of those homebuyers, who could not file their claims, but whose claims were reflected in the record of the CD, ought to have been included in the IM and resolution applicant, ought to have been taken note of the said labilities and should have appropriately dealt with them in the resolution plan. Non-consideration of such claims, which are reflected from the record, leads to inequitable and unfair resolution as is seen in the present case. To mitigate the hardship of the Appellant, we thus, are of the view that ends of justice would be met, if direction is issued to resolution professional to submit the details of homebuyers, whose details are reflected in the records of the CD including their claims, to the Resolution applicant, on the basis of which resolution applicant shall prepare an addendum to the resolution plan, which may be placed before the CoC for consideration.”

The argument of the Respondent that since the CoC has already approved the plan and the claim has been filed after the approval of the plan, the decision in the case of M/s RPS Infrastructure Ltd. (Supra) would come in the way of the Appellant because in that case it has been held that “the mere fact that the AA has yet not approved the plan does not imply that the plan can go back and forth, thereby making the CIRP an endless process. This would result in the reopening of the whole issue, particularly as there may be other similar persons who may jump onto the bandwagon.”

In the aforesaid case, however, it has been observed by the Hon’ble Court in para 18 that “if we analyse the aforesaid plea, it is quite obvious that respondent no. 1 did what could be done to procure the CD’s records by even moving an application under Section 19 of the Code. That it was not fruitful is a consequence of the CD not making available the material. It is thus not even known whether there was a reflection in the records on this aspect or not.”

Further, since the claim was filed after delay of 287 days and creditor feigned ignorance about the CIRP about which the Hon’ble court has held that the Appellant being a commercial entity and had been litigating against the CD, therefore, it ought to have been vigilant enough to find out whether the CD was undergoing CIRP and once a public announcement of the CIRP has been made through newspapers, it would constitute deemed knowledge on the Appellant and the plea of not being aware of newspaper pronouncement is not the one which should be available to a commercial entity.

However, the present case pertains to the non-commercial entity like a homebuyer.

In the case of Pooja Mehra (Supra), relied upon by the Respondent, which was also against the same CD this court had found that there was no evidence/acceptable material on record of the actual payment of Rs. 50,00,000/- to the CD. In this regard, the observation made by this court in the said case is captured in para 102 which is reproduced as under:-

In our considered opinion, the decision in the case of Pooja Mehra (Supra) is not applicable because in that case it was not even proved that the Appellant had disbursed the amount in question to the CD whereas in the present there is no dispute that the Appellant had disbursed the amount after taking loan from the Bank and the said factum is part of the IM.

Thus, keeping in view the totality of circumstances, we are of the considered opinion that the controversy in hand is covered by the case of Puneet Kaur (Supra) and therefore, while allowing the present appeal and setting aside the impugned order, we direct the RP to submit the detail of the appellant reflected in the record of the CD including their claim to the resolution applicant on the basis of which the resolution applicant shall prepare an addendum to the resolution plan which may be placed before the CoC for consideration. The entire exercise should be completed within a period of three months from today and the addendum and the minutes of the CoC at the time of finalizing the resolution plan shall be considered by the AA at the time of the approval of the resolution plan which is pending consideration before the AA. The Resolution Professional may also bring to Company Appeal (AT) (Ins.) No. 1391 of 2023 the notice of the AA, the order of this date, so that the AA may await the addendum alongwith the minutes of the CoC which may be considered alongwith the approval of the resolution plan.

Pending I.As, if any, are hereby closed.