Ashok Tripathi & Anr. vs M/s. Ansal Properties and Infrastructure Ltd.

PER SHRI L. N. GUPTA, MEMBER (T)

The present Petition is filed under the Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'IBC, 2016') read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') by Mr. Ashok Tripathi and Mr. Saurabh Tripathi (for brevity 'Financial Creditors'), with a prayer to initiate the Corporate Insolvency Process against M/s Ansal Properties and Infrastructure Limited (for brevity 'Corporate Debtor').

The Corporate Debtor namely, M/s Ansal Properties and Infrastructure Limited is a Company incorporated on 30.06.1967 under the provisions of Companies Act, 1956 with CIN No. L45101DL1967PLC004759, having its registered office 115, Ansal Bhawan, 16 K.G Marg, New Delhi-110001.

The Authorized Share Capital of the Respondent Company is Rs.1,50,00,00,000 and Paid-up Share Capital of the Company is Rs.78,70,24,000 as per the averments made by the Petitioner.

That the Financial Creditors/Applicants have jointly approached this Tribunal in the capacity of decree holder against the default of the Financial debt committed by the Corporate Debtor on account of the non-payment of the principal amount along with penalty as decreed by Uttar Pradesh Real Estate Regulatory Authority (UP RERA) vide Orders dated 16.11.2017 & 13.12.2018 and Recovery Certificate dated 10.08.2019.

It is submitted by the Financial Creditors that they have jointly booked a unit bearing No. 0073 admeasuring 3764 Sq. Ft. with the Corporate Debtor in its project namely “Sushant Golf City” develop at “High Tech Township” Sector-P, Sultanpur Road, Lucknow against the total consideration of Rs.1,62,43,133.

It is stated by the Financial Creditors that they have jointly applied to book the aforesaid unit on 05.08.2014 and paid an amount of Rs.8,37,300 as booking advance vide Cheque No. 606528 dated 20.08.2014 drawn at the State Bank of India, Prasar Bharti Branch, New Delhi, which was duly acknowledged by the Corporate Debtor.

It is further stated that the Financial Creditor No. 2 had also booked a separate unit bearing No. B7/GF/01 admeasuring 1229 Sq. Fts. on 16.07.2014 with the Corporate Debtor (Developer) in the same project at Sector ‘O’, Pocket-1, Sultanpur Road, Lucknow.

It is submitted that the Financial Creditor No. 2 has applied to book the aforesaid unit on 16.07.2014. It has been added that he had paid an amount of Rs.1,63,994 as booking advance vide Cheque No. 218856 dated 16.07.2014 drawn at the HSBC Premier Bank.

It is stated by the Financial Creditors that a joint "Built Up Agreement/Builder Buyer Agreement" dated 12.09.2014 for the first unit and Flat Buyer Agreement dated 28.09.2014 for the second unit were executed between the Parties. It is further added that the allotment letters were also issued by the Corporate Debtor in the favour of Financial Creditors.

It is submitted by the Financial Creditors that as per the Clause 23 of the aforesaid Agreements dated 12.09.2014 and 29.09.2014, the Corporate Debtor undertook to complete the construction and give possession of the units within 2 years from the date of commencement of construction on receipt of sanctioned plans form the authority.

It is further submitted by the Financial Creditors that as per the project summary available on the website of the RERA, the Project start date was 22.09.2015. Therefore, as per the agreement, Corporate Debtor ought to have given the possession of the first unit to the Financial Creditor No. 1 and 2 (co-owners) latest by 22.09.2017 and the second unit within 36 months from the date of sanctioning of building plans by the authorities. However, the Corporate Debtor failed to complete the construction of the units within the stipulated time period and abandoned the project midway. They have added that till date no possession has been given. It is further submitted that though till September, 2019 there was already an inordinate delay of 5 years, the Corporate Debtor neither completed the construction of the said units nor refunded the amount.

To substantiate existence of the financial debt, the Financial Creditors have annexed the Orders dated 16.11.2017 & 13.12.2018 and Recovery Certificate dated 10.08.2019 issued by “UP RERA” wherein liability of the Corporate Debtor is adjudicated to the tune of Rs.73,35,686.43. The Recovery Certificate issued by “UP RERA” is reproduced below :

The Corporate Debtor has filed its reply on 05.12.2019 and averred the following :

During the course of hearing, a number of opportunities were sought by the Corporate Debtor/Parties specifically on 04.12.2019, 13.12.2019, 06.02.2020 and 03.03.2020 to settle the matter with the Financial Creditors. However, no settlement was reached between the Parties.

That during the final arguments, the Ld. Counsel appearing for the Corporate Debtor submitted that the Financial Creditors being 'allottees/home buyer in a project' are hit by the Ordinance dated 28.12.2019. He further added that the petition is not maintainable as the same has not been filed by the requisite number of allottees and, moreover, status quo has been ordered by the Hon'ble Supreme Court.

In response, the Ld. Counsel for the Financial Creditors submitted that they are not covered under the definition of an allottee by virtue of the Order dated 16.11.2017 & 13.12.2018 and the Recovery Certificate 10.08.2019 passed/issued by UP RERA in the complaint filed by the Financial Creditors against the Corporate Debtor. Hence, their case is in no way affected by the Ordinance, since they have a 'decree' in the form of Recovery Certificate issued in their favour by "UP RERA".

The Financial Creditors have further submitted that in compliance to the Order dated 13.12.2018 of UP RERA, the Corporate Debtor has paid a sum of Rs.3,89,229 in two instalments in the month of March and June, 2019. Again, in December, 2019 the Corporate Debtor has paid a sum of Rs.3,00,000 in the account of the Financial Creditor/Applicant No. 2. He further argued that by doing so, the Corporate Debtor has accepted the fact of its default but failed to pay the entire decretal amount.

The Ld. Counsel for the Financial Creditors have also placed reliance on the Judgment of the Hon'ble NCLAT passed in the matter of V. R. Hemantraj Vs. Stanbic Bank Ghana Ltd. & Anr., Company Appeal (AT) (Insolvency) No. 213/2018.

After hearing submissions of both the parties, the main issue which emerges before this Bench for consideration is whether the case of the Financial Creditors is hit by the Ordinance dated 28.12.2019 or not.

To adjudicate this issue, it is felt appropriate to refer first to the definition of 'Claim' as provided under Section 3(6) of IBC, 2016, which is reproduced below :

Now, we refer to the definition of 'Creditor' as provided under Section 3(10) of IBC, 2016, which is reproduced below :

In view of the above, this Bench is of the view that the 'Claim' of the Financial Creditors having been arisen out of the Orders and Recovery Certificate issued by "UP RERA", which being an 'adjudicated debt' determined by an authority of appropriate jurisdiction, the case of the Financial Creditors is not hit by the Ordinance dated 28.12.2019. Moreover, from perusal of the Order dated 16.11.2017 of UP RERA, it is evident that the Corporate Debtor has agreed to refund the amount and the fact that part payment of the decretal amount has already been made by the Corporate Debtor, Financial Creditors have succeeded in establishing their case.

Further, the Hon'ble NCLAT in the matter of M/s Ugro Capital Limited Vs. Bangalore Dehydration and Drying Equipment Co. Pvt. Ltd. in Company Appeal (AT) (Insolvency) 984 of 2019 has recognized the claim of Financial Creditor on the basis of an existence of a Decree. The Hon'ble NCLAT has observed that :

In the given facts and circumstances, the present Petition being complete and having established the default in payment of the Financial debt for the default amount being above Rs.1,00,000, the Petition is admitted in terms of Section 7(5) of the IBC and accordingly, moratorium is declared in terms of Section 14 of the Code. As a necessary consequence of the moratorium in terms of Section 14(1) (a), (b), (c) & (d), the following prohibitions are imposed, which must be followed by all and sundry :

As proposed by the Financial Creditor, this Bench appoints Mr. Amarpal as an IRP having IBBI Registration No. IBBI-/IPA-001/IP-P01584/2018-19/12411 (Email: amarpal@icai.org.), subject to the condition that no disciplinary proceedings are pending against the IRP so named and disclosures as required under IBBI Regulations, 2016 are made by him within a period of one week from this Order. The IRP is directed to take the steps as mandated under the IBC specifically under Section 15, 17, 18, 20 and 21 of IBC, 2016.

The Financial Creditor is directed to deposit Rs.2,00,000 (Two Lakh) only with the IRP to meet the immediate expenses. The amount, however, will be subject to adjustment by the Committee of Creditors as accounted for by Interim Resolution Professional and shall be paid back to the Financial Creditor.

In terms of the above, the Application stands admitted in terms of Section 7(5) of IBC, 2016 and the moratorium shall come in to effect as of this date. A copy of this Order shall be communicated to the Applicant, the Respondent and the IRP mentioned above by the Registry of this Tribunal. In addition, a copy of the Order shall also be forwarded by the Registry to the IBBI for their records.