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Tribunals and CommissionsFull Bench(2022) 11 NCLAT CK 0094

Amit Rajpal and Anr vs Ahuja Properties & Realtors Pvt. Ltd

National Company Law Appellate Tribunal · Decided on 17 November 2022

HON’BLE JUDGES
Ashok Bhushan, Chairperson · Dr. Alok Srivastava, Member (T) · Barun Mitra, Member (T)
RESULT
Dismissed
CASE NUMBER
Company Appeal (AT) (Insolvency) No.1358 Of 2022 & I.A. No. 4227 Of 2022

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Judgment

3 paragraphs · 335 words
1.

Heard learned counsel for the Appellants. This Appeal has been filed against order dated 30.08.2022 by which the application filed by the Appellants under Section 7 has been rejected. Appellants’ case is that Appellants has purchased a flat from the Respondent Developer and has made the entire payment towards the flat. He submits that Appellants has also made payment to the Corporate Debtor of Rs.1,09,22,500/- towards the Corpus Fund which fund has not been transferred by the Corporate Debtor to the Housing Society which has been formed by the flat buyers. The application was filed by the Appellants for recovery of the said amount from the Corporate Debtor which, according to the Appellants, have already been paid to the Corporate Debtor as Corpus Fund. The Adjudicating Authority has rejected the application on the ground that Appellant is an allottee and does not fulfils the threshold prescribed under Section 7 proviso.

2.

Learned counsel for the Appellants submits that present is not a case for fulfilling the threshold as Appellant is no more an allottee after purchase of the flat which fact has not been looked into by the Adjudicating Authority.

3.

When we look into the facts of the present case, we see that the proceedings under Section 7 have been initiated for recovery of an amount of Rs.1,09,22,500/- which according to the Appellants has been paid by him to the Corporate Debtor as Corpus Fund. The insolvency resolution process under IBC are not proceedings for recovery of any amount. Especially, in the facts of the present case when the application under Section 7 has been filed for recovery of amount towards the Corpus Fund which is claimed to have been paid by the Appellants to the Corporate Debtor which fund has not been transferred to the Housing Society of the flat buyers, we are of the view that insolvency proceedings cannot be initiated at the instance of the Appellants. We with these reasons are not inclined to entertain this Appeal. Appeal is dismissed.