AI Structured Summary
Not yet generated for this judgment
Judgment
21.01.2025: Heard learned counsel for the Appellant as well as learned counsel for the Respondent. This appeal has been filed against order dated 19.12.2024 by which order the Adjudicating Authority has admitted Section 7 application filed by the Financial Creditors in a class. When the Appeal was heard on earlier occasion an order was passed by this Tribunal on 03.01.2025 directing the Appellant to bring relevant Occupancy Certificate on record.
Order dated 03.01.2025 is as follows:
“O R D E R (Hybrid Mode)
03.01.2025: Learned counsel for the Appellant seeks time to bring on record Occupancy Certificate (O.C.) issued by the competent authority. As prayed, three days’ time is allowed to bring relevant O.C. on record. Cont’d…/ List this Appeal on 09.01.2025.”
In pursuance of the order of this Tribunal an affidavit of compliance has been filed by the Appellant. Learned counsel for the Appellant challenging the order submits that the Completion Certificate was issued by the Architect, who was duly authorised to issue completion certificate, which has been brought on the record at page 271 of the appeal. He submits that the units are complete and even possession was offered by the Promoter to the Allottees in September, 2022 but they have not taken possession. It is further submitted that a deed has been executed on 18.07.2023 with one of the Allottee namely Piyush Govil, which is brought on record at page 41 of the Compliance Affidavit, which indicate that units are complete. Learned counsel for the Appellant further contended that the application was not filed by authorised person. He has referred to page 213 of the paper book and submitted that the application was signed by Rahul Bhardwaj whereas the affidavit is signed by Vikas Mittal. It is further submitted that the authorisation of different homebuyers are dated subsequent to 11.01.2024 and when the affidavit was signed subsequently, the application was not appropriately framed.
Learned counsel for the Respondent submits that the units were never complete and Occupancy Certificate has not been issued to the Corporate Debtor, hence, there was no occasion to take possession by the Allottees. It is further submitted that Vikas Mittal was authorised person who has signed the application at page 213 and Rahul Bhardwaj has signed vakalatnama and memo. It is submitted that before the Adjudicating Authority an additional affidavit was filed by the Applicants bringing on record affidavits and authorisation, which was noted by the Adjudicating Authority and no objection was raised regarding authorisation.
We have considered the submissions of learned counsel for the parties and perused the record.
The first question, which need to be considered is whether there is Occupancy Certificate in favour of the Appellant. The Appellant has relied on Completion Certificate dated 02.02.2022 which is issued by the Architect. The Completion Certificate issued by the Architect has been brought on record at page 275, which is as follows:
“COMPLETION CERTIFICATE
I hereby certify that BLOCK-A (Tower-A & B) of Group Housing project 'Genesis Sky Heights" on Khasra No./Plot No 661, 668, 670 to 673 AT Village: -NAUGAWAN, TEH- TIJARA, ALWAR, RAJ. Owned/developed by M/s SWASTIK HOMEBUILD PVT. LTD. was personally inspected by me and based on the above fact, building construction on site is complete in accordance with the approved building plans. Type of the building (Residential) is also in accordance with the approved plan. Hence the Completion Certificate is issued as per my best knowledge and Information provided to me under my signature on date 02-09-2022.
Note:-
1.This Completion Certificate is only valid after the deposition of Application fees or any Pending amount/fees demanded by BIDA, Bhiwadi, Rajasthan.
2.After commencement of this completion certificate if any deviation found against the approved building maps then Empanelled Architect will not be responsible for such changes.
3.It is mandatory to obtain OCCUPANCY CERTIFICATE after completion of all external works and required NOC's as per building by-laws.
4.This Completion Certificate is only for completion of building as per approved maps and is not stands for any type of STRUCTURE SAFETY and for Occupancy.
MAYUR GOYAL
S-258, Second Floor, Sukham Tower, Bhagat Singh Colony, Bhiwadi, Alwar CA/2009/46101 CTP RAJ./Architect/2021/51”
A bare perusal of above certificate indicates that the certificate given by the Architect is Completion Certificate and said is not Occupancy Certificate. The Appellant in the Affidavit of Compliance has himself brought relevant notification on record namely BIDA Model Building Regulations, 2021 gazetted on 06.08.2021. When we look into the said notification, it is clear that there are separate provisions for Completion Certificate as well as Occupancy Certificate. Occupancy Certificate is dealt with in Clause 17, which is as follows:
“17. Occupancy Certificate:
17.1After completing the construction of the building as per the approved map and obtaining the completion certificate, after providing necessary facilities in the building such as electricity, water, sewerage treatment plant, transformer, architectural finishing such as painting, false ceiling, interior, site development, parking signages, landscaping. plantation etc., the developer will have to apply for Occupancy Certificate before the competent authority/architect registered for this purpose by the State Government. It will be mandatory to obtain Consent to Operate from the Environment Department within the period of issuance of Occupancy Certificate.
17.2Within 7 days from the date of receipt of the application, the competent officer/registered architect will carry out the necessary investigation and issue the Occupancy Certificate.
17.3For all types of multi-storey buildings and for special buildings, occupancy certificate can be issued only after final satisfaction letter is issued from the fire officer. In cases where it is mandatory to obtain environmental clearance, the applicant will also have to submit the clearance from the environmental department before obtaining the occupancy certificate.
17.4It will be necessary to obtain Occupancy Certificate for the buildings mentioned in the provisions of the Real Estate (Regulation and Development) Act, 2016 and the Rajasthan Real Estate (Regulation and Development) Rules, 2017 made thereunder.”
Completion Certificate is referred to in Clause 16 of the Notification, which is relied by the Appellant. The above statutory regulation itself makes it clear that there are two different certificates namely Completion Certificate and Occupancy Certificate. Only Completion Certificate has been produced, hence, we hold that there is no Occupancy Certificate issued to the Corporate Debtor. Hence, submission of the Appellant that the units were complete but the Allottees has refused to take possession cannot be accepted as without their being an Occupancy Certificate no units were available to take possession.
The second submission of the Appellant is that there is no appropriate authorisation. The affidavit has been filed by Vikas Mittal who claim to be authorised person on behalf of the Allottees and it is Vikas Mittal who has signed application at page 213 and Affidavit at page 214. In so far as authorisation of Allottees which is subsequent to 11.01.2024, in this regard we take notice of the submission of the Respondent that subsequently an Additional Affidavit was filed bringing on record authorisation as well as affidavits and no objection was raised on maintainability of the application filed on behalf of Creditors in a class. We do not find any substance in the submission of the Appellant.
The Adjudicating Authority after finding debt and default has admitted application under Section 7, hence, we do not find any infirmity in the impugned order. There is no merit in the Appeal. Appeal is dismissed.