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Judgment
[Per: Justice Rakesh Kumar Jain (Oral)]
This appeal is directed against the order dated 24.08.2024 passed by the national Company Law Tribunal, New Delhi, Bench-III (‘Tribunal’) by which an application filed by the Appellant bearing C.A. No. 935 of 2023 in C.P. (IB) No. 2130/ND/2019 for direction to Resolution Professional to admit his claims of Rs. 2,51,03,029/-, submitted in Form CA on 19.09.2022, has been dismissed on the ground that the claim filed after the approval of the Plan by the CoC cannot be admitted. Thus, the case is covered by the judgment passed by this Tribunal in the case of Puneet Kaur Vs. K V Developers Private Limited &Ors. in Company Appeal (AT) (Insolvency) No. 390 of 2022 decided on 01.06.2022.
The Appellant is a Homebuyer who submitted his claims in Form CA on 19.09.2022. The Resolution Professional of the Corporate Debtor (M/s Today Homes & Infrastructure Pvt. Ltd.) rejected the claim submitted belatedly after the approval of Plan by the CoC.
Counsel for the Appellant has relied up a decision of this court rendered in the case of Puneet Kaur (Supra) and submitted that though the Tribunal, while dismissing his application has relied upon Puneet Kaur (Supra) but the said decision of this court is in his favour.
In this regard, he has referred to para 27 of Puneet Kaur (Supra) which read as under :-
27.In the present 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 Information Memorandum. 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, 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 Corporate Debtor, ought to have been included in the Information Memorandum and Resolution Applicant, ought to have been taken note of the said liabilities 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 Corporate Debtor 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 above exercise be completed within a period of three months from today and the addendum along with minutes of the CoC be placed before the Adjudicating Authority at the time of approval of Resolution Plan, which is pending consideration before the Adjudicating Authority. The Resolution Applicant may also bring into the notice of the Adjudicating Authority the order of this date, so that the Adjudicating Authority may await the addendum and minutes of the CoC, which may be considered along with approval of the Resolution Plan. We thus, dispose of these Appeal(s) with following directions:
(1)The Resolution Professional shall provide all details of Homebuyers along with their claims as reflected from the record of the Corporate Debtor, who had not filed their claims, including the Appellant(s) to the Resolution Applicant within a period of one month from today.
(2)The Resolution Applicant shall prepare an addendum on the basis of information as submitted by Resolution Professional and place the same before the CoC within a further period of one month.
(3)The CoC shall consider the addendum in its meeting and decision of the CoC on the Information Memorandum and addendum be placed before the Adjudicating Authority. The CoC shall take decision in its meeting within a period of one month from the date of submission of addendum by the Resolution Applicant.
(4)The Adjudicating Authority while considering approval of the Resolution Plan, which is pending consideration in IA No.3447 of 2021 shall consider the addendum and the minutes of the CoC at the time of finalizing the Resolution Plan.
Counsel for the Respondent (RP) submits that the record of the Corporate Debtor reflects the dues of the Appellant and contested that the present controversy is not covered by the decision rendered in the case of Puneet Kaur (Supra) and submitted that the decision in the case of Puneet Kaur (Supra) has rightly been applied by the Tribunal.
We have heard both the Counsel for the Parties and found that there is an error in the order of the Learned Tribunal as it has only taken into consideration the observation made by the Court in Para 15 of the case of Puneet Kaur (Supra) and has not taken into consideration the concluding part of the order which is in para 27 which has been reproduced in the earlier paragraph.
Counsel for the Respondent rather relied upon another decision of this Court rendered in the case of Pooja Mehra Vs. Nilesh Sharma &Anr. in Company Appeal (AT) (Insolvency) No. 1511 of 2023 decided on 19.04.2024. The relevant para indicated by the Counsel is Para 90 which is reproduced as under :-
“90.In Puneet Kaur (supra)’s case, the details of homebuyers who had not submitted their claims but whose claims were reflected in the record of the Corporate Debtor, were not provided in the Information Memorandum and thus the Resolution Applicant / Committee of Creditors (CoC) had not the occasion to consider the same. On the contrary in the present case, the Resolution Professional had duly provided the details of homebuyers, who have not submitted their claims and whose claims were reflected in the record of the Corporate Debtor and the same have been duly considered and dealt with in the approved resolution plan. The Appellant’s case is not comparable as the claim was presented much after the approval of the resolution plan and it was not even reflected in the records of the Corporate Debtor. As such, Puneet Kaur’s (supra) judgment is not squarely applicable and doesn’t come to the aid of the Appellant in the instant case.”
After considering respective arguments, we have found that case of the Appellant is fully covered by the judgment of Puneet Kaur (Supra) (para 27 and 28) which we have already reproduced above and the decision in the case of Pooja Mehra (Supra) relied upon by Respondent is not applicable to this case because it has been observed in this case that the record of the Corporate Debtor did not reflect the claims of the Homebuyers (Financial Creditor).
Thus, in view of the facts and circumstances, the present appeal is allowed, the Impugned Order is set aside. Direction is issued to the Respondent (Resolution Professional) to submit the details of the Homebuyers reflected in the records of the Corporate Debtor to the Resolution Applicant, on the basis of which the Resolution Applicant shall prepare the addendum.
At this stage, Counsel for Respondent No. 1 submits that the Resolution Applicant has already filed an affidavit in I.A. No. 4766/2021 to take care of all the belated claims of the Homebuyers. The said order has been passed by the Tribunal and the relevant portion of the said order is read as under :-
“These applications have been filed against the rejection of the claim on the ground of delay in submission of the claim. Ld. Counsel appearing for the RP has stated that an affidavit has been filed in IA-4766/2021 which is an application seeking approval of the Resolution Plan, stating that:
"In reference to the observation made by Hon'ble NCLAT as per your trailing mail in regards to the homebuyers who have not filed their claims/have filed claims belatedly, we undertake that the Resolution applicant shall consider their claims and treat them at par with other homebuyers who had filed their claims in time, and provide them with their respective units under the Resolution Plan subject to the direction of the Hon'ble NCLT/NCLAT to consider their claims, upon verification of their documents/proof of claims under IBC."
Having perused the said affidavit and in view of the statement made by the RP in court, the RP is directed to consider the claims filed by the Applicants and treat the Applicants at par with other creditors subject to verification.
All Interlocutory Applications are disposed of with the above directions.”
Thus, in view of the aforesaid discussion, the present appeal succeeds another and the same is hereby allowed. No Costs.