IDBI Bank Limited vs Nilesh Sharma

PER: BACHU VENKAT BALARAM DAS, MEMBER (JUDICIAL)

This application has been filed by the IDBI Bank under Section 60(5) read with Rule 11 of the National Company Law Tribunal Rules, 2016 against the rejection of the claim of the Applicant Bank, by the Respondent/Resolution Professional of M/s. Today Homes & Infrastructure Pvt. Ltd. The Applicant filed its claim on the basis of granting of financial facilities amounting to Rs. 19,13,380/-(Sanctioned Loan Amount Rs.22,00,000/-) to its customers namely Mr. Saurabh Verma and Ms. Pooja Singh for the purchase of Unit No. E-1206, 12^th Floor, kings park situated at Omega-1, Block-P/2, Greater Noida Uttar Pradesh.

It is submitted that a Tripartite Agreement dated 25.08.2013 was executed between M/s. Today Homes & Infrastructure Private Limited, Mr. Saurabh Verma and IDBI Bank Limited with respect to the aforesaid flat in question.

In terms of the said Tripartite Agreement, the Applicant Bank disbursed the loan amount directly in favour of M/s. Today Homes & Infrastructure Private Limited as per the instructions of the borrowers. Since the borrowers defaulted in paying the loan amount, the loan account was classified as NPA on 08.09.2017 and consequently, the Applicant Bank sent a recall notice dated 28.11.2017 to the borrowers calling upon them to repay the total outstanding amount to the Bank within seven days.

Subsequently, the Applicant sent a notice on 02.09.2019 to the Builder (Corporate Debtor) and also issued a notice on 16.09.2019 under Section 13(2) of the SARFAESI Act, 2002. Thereafter, CIRP in respect of the Corporate Debtor was initiated vide order dated 31.10.2019 passed by this Adjudicating Authority and the Applicant filed its claim of Rs. 23,40,941/- in Form-C dated 14.11.2019 with the IRP which was not admitted.

The Resolution Professional has filed a reply affidavit denying the contentions and allegations made in this application filed by the Applicant and stated that the obligation of the Corporate Debtor qua the Applicant is limited to the extent that it shall not convey/ transfer or give possession of the Subject Unit without the written consent of the Applicant. The Applicant Bank may also call upon the Corporate Debtor to cancel the Agreement to Sell executed in favour of Mr. Saurabh Verma and enter into a fresh sale with any person as nominated by the Applicant Bank.

Pursuant to the CIRP of the Corporate Debtor, the IRP made the public announcement in Form-A in various newspapers on 01.11.2019. The Last date for the submissions of claims was 14.11.2019.

Thereafter, the RP collated the claims and constituted the CoC and the first CoC meeting was convened on 01.12.2019. The 90^th day from the commencement of CIRP, up to which, belated claims could be filed in terms of Regulation 12(2) of the CIRP Regulations was 29.01.2020.

The Respondent thereafter issued Form-G on 29.02.2020, inviting Expression of Interest ("EOIs") from the Prospective Resolution Applicants ("PRAs"), as advised by the CoC in terms of the provisions of Section 25(2)(h) of the Code. The last date for submission of EOls was 15.03.2020. Due to the nationwide lockdown in the wake of the Covid-19 pandemic, the CoC decided to re-issue Form-G to invite EOI. Thereafter, the RP re-issued Form-G on 16.10.2020. As a satisfactory response was not received, the RP re-issued Form-G for the third time on 06.11.2020. The last date for submission of EOls was 13.11.2020.

The Ld. Counsel appearing for the Resolution Professional relied upon a judgment passed by the Hon’ble NCLAT, Principal Bench, New Delhi in IA-1502/2020 & IA-1503/2020 in the matter of Axis Bank Limited Vs. Value Infracon India Private Limited, wherein the Hon’ble NCLAT held that the presence of a mere Tripartite Agreement does not change the character of the amount borrowed by the Homebuyer vis-a-vis the Bank and vis-a-vis the “Corporate Debtor” and the Bank cannot be included as a secured Financial Creditor and submitted that the present case is squarely covered by the said NCLAT judgment. We agree with the submissions of the Ld. Counsel for the Resolution Professional and hold that the Bank cannot be treated as a secured Financial Creditor merely on the basis of the Tripartite Agreement.

Coming to the factual matrix of the present Application, it is a settled law that once the Resolution Plan has been approved by the CoC, the Adjudicating Authority can't go back to look into the nitty-gritty involved in the CIRP of the Corporate Debtor. Therefore, this Adjudicating Authority cannot entertain the present Application which is not sustainable and devoid of merits. The Applicant is attempting to derail or delay the present CIRP proceedings of the Corporate Debtor.

We are of the considered view that if such claims are allowed, then this Adjudicating Authority will continue to receive further such applications and the case will never reach resolution. Further, it will also cause a hurdle to the Successful Resolution Applicant in executing the Resolution Plan.

In view of the above facts and circumstances and the foregoing discussion. It is accordingly ordered as follows:

No order as to costs.