Anand Murti vs Soni Infratech Pvt. Ltd. & Anr.

Per: Justice Rakesh Kumar Jain: (Oral)

31.01.2023: This order shall dispose of I.A. No. 3479 of 2022 filed in CA (AT) (Ins) No. 1507 of 2019 in which the Applicant, who is the land owner and promoter of the Corporate Debtor, has made the following prayers:-“(i) Allow this Application; and (ii) Direct the home buyers to comply with the consensus arrived and recorded in Para Number 3(i) of minutes of the meeting dated 23.10.2021 in respect to this project not to escalate any of the pending/grievances before the appropriate forum against the existing promoter/Resolution Applicant and CD during the construction period for smooth and timely completion of the project; and (iii) To pass an appropriate direction to MCA to delete the word Under CIRP from the online status of the CD reflecting in the website of the MCA in the light of the Hon’ble Apex Court Judgment; and (iv) Allow the Promoter/Applicant to sign the documents of settlement and NOC of M/s Edelweiss on behalf of the CD; and (v) Allow the promoter/Applicant to sign the Terms Sheet in respect to the Swamih Funds to raise the funds to complete the project; and (vi) Pass any order/orders as this Hon’ble Appellate Tribunal deems fit and proper in the facts and circumstances of the instant case.”

Besides the aforesaid prayers made in writing, the Applicant has also made an oral prayer before us that though a particular time was granted by the Hon’ble Supreme Court to complete the project, namely, Orion Galaxy, Sector 68, Gurugram, Haryana, spread over in three phases, within a period of 6 months, 12 months and 15 months with +/ - three months, but because of loss of time on account of ban imposed by the National Green Tribunal on construction from time to time as well as due to the orders of the government, 37 working days were lost which may be compensated with further provision of a period of three months.

In brief, Balram Singh (Financial Creditor) filed an application under Section 7 of the Code against M/s Soni Infratech Pvt. Ltd. (Corporate Debtor). The said application was admitted by the Adjudicating Authority on 22.11.2019.

The order of admission was challenged by one suspended director, namely, Anand Murti by way of an appeal i.e. CA (AT) (Ins) No. 1507 of 2019. In the said appeal, notice was issued on 19.12.2019 and an interim order was passed directing the IRP not to constitute the CoC.

However, the order dated 19.12.2019 was modified vide order dated 26.02.2020 for the purpose of constitution of CoC and the CoC was constituted on 04.03.2020. The said order was challenged by the Appellant by way of an appeal i.e. Civil Appeal No. 1928 of 2020 before the Hon’ble Apex Court. However, the said appeal was disposed of with liberty to the Appellant to file an appropriate application for seeking modification of the order dated 26.02.2020.

In view thereof, the Appellant filed I.A. No. 1115 of 2020 for seeking modification of the order dated 26.02.2020. The said application was dismissed on 22.11.2021.

Aggrieved against the order dated 22.11.2021, a Civil Appeal No. 7534 of 2021 was filed by the Appellant before the Hon’ble Apex Court. The said appeal was allowed on 27.04.2022 with the following directions: -

Thereafter, in pursuance of the directions contained in Para 24(E) of the order of the Hon’ble Supreme Court dated 27.04.2022, the IRP have been submitting its quarterly reports. It is also pertinent to mention that vide our order dated 09.11.2022, the Appellant has also filed an affidavit of the promoter detailing the work which has been done up to date. The Appellant has filed the report(s) and the last report is dated 27.01.2023.

Be that as it may, Sr. Counsel for the Applicant has pressed his prayer for extension of period of three months beyond the period given by the Hon’ble Supreme Court in the order dated 27.04.2022. We may clarify that the Applicant/Appellant had submitted an affidavit-cum-undertaking dated 27.12.2021 before the Hon’ble Supreme Court which has been reproduced in the order dated 27.04.2022 and in Para 13 of the said affidavit it has been stated by the Applicant that:-

According to the time line given to the Supreme Court by the Appellant in the aforesaid paragraph, the Stage – I was pertaining to T8-T12 to be completed within a period of 6 to 9 months, which means completion was to be done in 6 months with three months extra. As per our calculation, since the order of the Hon’ble Supreme Court was passed on 27.04.2022, the period of 6 months had expired on 27.10.2022 and the additional period of three months has also expired on 27.01.2023 or at the most by the end of January, 2023. In so far as Stage-II, pertaining to T1 to T4 is concerned, the period of 12 months counted from 27.04.2022 shall expire on 27.04.2023 and with the grace period of three months shall expire on 27.07.2023. Stage-III, pertaining to T5 to T7 is to be completed within a period of 15 months from 27.04.2022 which shall expire in July, 2023 and with the grace period of three months, it shall expire in October, 2023.

Besides the oral prayers, the Applicant has prayed that he may be allowed to enter into an agreement with the financer, namely, Swamih Investment Fund-I in order to raise a fund of about of Rs. 150 Crores in two phases for the purpose of completion of the project. He has also prayed that unsold inventory (12 flats) and vacant area may be permitted to be sold for the purpose of raising funds and has prayed that a direction may be issued to MCA to delete the word “Under CIRP” from the online status of the CD reflecting in the website of the MCA as it is detrimental to its interest in getting some good investor for the purpose of completion of the project in hand and that he may be allowed to sign the documents pertaining to raising of funds.

Although, Sr. Counsel for the Applicant/Appellant has argued with vehemence that all the prayers made in the application are genuine in nature and deserves to be granted but after taking into consideration the fact that the order of the Hon’ble Apex Court dated 27.04.2022 is based upon the undertaking given by the Appellant/Applicant before the Hon’ble Apex Court by way of an affidavit in which the time line has been provided, we are of the considered opinion that it would be just and expedient if the Applicant/ Appellant files an appropriate application before the Hon’ble Apex Court in this regard for the purpose of seeking the prayers made in this Application because in no case this Court can dilute the order of the Hon’ble Supreme Court by which directions have been issued particularly in regard to a time line provided to the Appellant for completing the construction.

With these observations, the present application is hereby disposed of as not maintainable before us but liberty is granted to the Appellant/Applicant to avail its remedy, in accordance with law, before the Hon’ble Apex Court, if so advised.