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Judgment
Ashok Bhushan, J.
Company Appeal (AT) (Insolvency) No.386 of 2023 has been filed by Suspended Director of the Corporate Debtor challenging the order dated 15.03.2023 by which order Section 7 application filed by the Respondent Nos.1 to 6- Financial Creditors in a Class has been admitted. Aggrieved by the order dated 15.03.2023, this Appeal was filed on 22.03.2023 and this Tribunal passed an interim order on 31.03.2023 staying further proceedings till the next date which interim order continued from time to time. Contempt Case (AT) No.32 of 2024 has been filed alleging non-compliance of interim order dated 31.03.2023 passed in the Appeal as clarified on 24.07.2024.
Company Appeal (AT) (Insolvency) No.386 of 2023
Brief facts giving rise to the Company Appeal are as follows:-
Corporate Debtor- ‘Harihar Infra Venture (India) Pvt. Ltd.’ launched a project namely—‘Sai Hermitage’. Respondent Nos. 1 to 6 entered into an agreement with the Corporate Debtor between the year 2016 to 2017 by which different flats were allotted. Appellant claimed to have also made payment of their consideration. Possession of flats were to be provided on or before 30.04.2019. The Respondents on suggestion of the Corporate Debtor entered into Leave and License Agreement with the Corporate Debtor in respect of flats allotted to them under which in order to compensate the Financial Creditors who have paid full consideration providing for payment of license fee to the Financial Creditors. The Corporate Debtor stopped making payment to the Financial Creditors, hence, Company Petition No.2910 of 2019 was filed before the Adjudicating Authority. A settlement was entered between the parties that the Corporate Debtor would pay an amount of Rs.1,96,92,000/- in 12 equal instalments as per schedule annexed in the Consent Terms. On basis of Consent Terms, the Company Petition was disposed of granting liberty to the Financial Creditors to approach the Tribunal in case of default. The cheque deposited by Respondents were returned. Company Petition (IB) No.88 of 2021 was filed by Respondent Nos. 2 to 6 alleging default on the part of the Corporate Debtor seeking initiation of the CIRP. The Corporate Debtor filed a reply to Section 7 application raising various objections including non-compliance of Section 7(1) as amended. It was pleaded that the Applicants are not Financial Creditors and default amount under the Consent Terms is below the threshold limit of Rs.1 Crore. Adjudicating Authority heard the parties and by impugned order dated 15.03.2023 admitted Section 7 application and appointed IRP, aggrieved by which order this Appeal has been filed.
Notices were issued in the Appeal. Reply has been filed by the Respondent Nos.1 to 6 dated 25.04.2023 to which a rejoinder has also been filed by the Appellant. Additional affidavit in reply was filed by the Respondent Nos.1 to 6 dated 07.08.2023.
We have heard Learned Counsel for the Appellant and Counsel appearing for the Respondents.
Counsel for the Appellant in support of the Appeal submits that the Respondent Nos.1 to 6 are speculative investors and are not the Financial Creditors in Class, proceeding initiated by them is not maintainable under Section 7. It is submitted that the breach and default under the Consent Terms cannot be a ground to trigger a CIRP against the Corporate Debtor. It is further submitted that the Financial Creditors do not meet the threshold of 100 allottees and 10% of the project as required under Section 7(1) 2nd proviso of the IBC, hence, the application under Section 7 could not have been admitted.
Counsel appearing for the Respondent refuting the submissions of the Counsel for the Appellant submits that the Respondent Nos. 1 to 6 are the Financial Creditors to whom allotment was made by the Corporate Debtor for consideration which has already been paid by the Respondent Nos.1 to
It was on the suggestion of the Corporate Debtor that Leave and License Agreement was entered at the instance of the Corporate Debtor under which the Financial Creditors were to the paid license fee by the Corporate Debtor. It is denied that the Respondent Nos.1 to 6 are speculative investors. The Appellant has raised the above submission for the first time as an afterthought. Refuting the submission of the Appellant that application under Section 7 is not maintainable due to default in the Consent Terms, it is submitted that merely on account of entering into Settlement Agreement/ Consent Terms original debt is not wiped out and the nature of transaction remains the same, thus, the Respondent Nos.1 to 6 are Financial Creditors. Refuting the submission of the Appellant that the Application does not meet the threshold under Section 7(1) 2nd proviso of the IBC, it is submitted that the Corporate Debtor in its reply has not given any details of units which according to the Corporate Debtor has been allotted. No details have been given in the reply and it was only in the written submission for the first time Corporate Debtor mentioned that there are 112 allotments. Any statement in the written submissions could not be relied. It is submitted that in the Appeal also, no details of allotments have been mentioned except filing of five redacted Agreement for Sale. It is in the rejoinder-affidavit filed by the Appellant, 81 registered Sale Agreements are claimed and only list of 81 names have been given in the rejoinder without giving any other details. It is submitted that in the rejoinder-affidavit, the Respondents have relied on the project information available at Maharashtra RERA which mentioned ‘zero’ allotment, hence, Respondent Nos.1 to 6 were the only allottees. It is submitted that the burden was on the Corporate Debtor to bring materials to prove the units allotted, hence, the submission of the Appellant that application does not fulfil the threshold cannot be accepted.
We have considered the submissions of the Counsel for the parties and perused the record.
Coming to the 1st submission of the Appellant that the Corporate Debtor are the speculative investors, hence, application at their instance under Section 7 is not maintainable. Copy of Section 7 application has been brought on the record as Annexure A3 to the Appeal where it was pleaded that the Corporate Debtor agreed to sell fully furnished apartments and registered agreement was entered between the parties. In paragraph 3 of the synopsis, details of date of agreement, consideration amount and flat no. have been mentioned. Financial Creditors claim to have made entire payment. Paragraphs 3 and 4 is as follows:-
“3.Upon the representations made by the Corporate Debtor, he agreed to sell and the Financial Creditors agreed to purchase fully furnished Apartments on ownership basis in the said Project for the consideration as mentioned in the Agreements executed between the parties, respectively. The Agreements have been registered with the Sub-Registrar of Assurances Grade I Rahata. The Agreements executed and registered between the Financial Creditor and the Corporate Debtor are as follows:
Sr. No. Financial Creditor Date of Agreement Consideration Amount Flat No. 1 Mr. Srikanth S. Despande and Mrs. Indira Sripath Rao 30th December, 2016 28,00,000/- 222, 1st Floor, Block E 2 Mrs. Kakumanu Lakshmi 9th December, 2016 23,00,000/- 204, 1st Floor Block A 3 Mrs. Veliventi Venkata Gayathri Sowmva 18th April, 2017 28,00,000/- 221, 1st Floor, Block E 4 Mrs. Korutla Vijaya Lakshmi 8th May, 2017 28,00,000/- 119, Ground Floor, Block E 5 Mr. Krishna Rao Veliventi 3rd October, 2016 23,00,000/- 119, Ground Floor, Block A 6 Mrs. Girija Kumari Emani And Emani Sankar Rao 7th February, 2017 23,00,000/- 307, 2ND Floor, Block A 4.Pertinently, the Financial Creditors paid the entire consideration as mentioned in the Agreements to the Corporate Debtors. The consideration was paid on the following dates:
| Sr. No. | Financial Creditor | Consideration Amount | Date of Payment |
|---|---|---|---|
| 1 | Mr. Srikanth S. Despande and Mrs. Indira Sripath Rao | 28,00,000/- | 30th December, 2016 |
| 2 | Mrs. Kakumanu Lakshmi | 23,00,000/- | 9th December, 2016 |
| 3 | Mrs. Veliventi Venkata Gayathri Sowmva | 28,00,000/- | 18th April, 2017 |
| 4 | Mrs. Korutla Vijaya Lakshmi | 28,00,000/- | 8th May, 2017 |
| 5 | Mr. Krishna Rao Veliventi | 23,00,000/- | 3rd October, 2016 |
| 6 | Mrs. Girija Kumari Emani And Emani Sankar Rao | 23,00,000/- | 7th February, 2017 |
In the reply which was filed by the Corporate Debtor in which reply the status of applicants have not been disputed. Agreement between the parties being registered agreement and consideration having already been paid as pleaded in Section 7 application, we do not find any substance in the submission of the Appellant that the Respondent Nos.1 to 6 are speculative investors. Counsel for the Appellant has relied on judgment of the Hon’ble Supreme Court in “Mansi Brar Fernandes vs. Shubha Sharma & Anr.- Civil Appeal No.3826 of 2020” where the Hon’ble Supreme Court held that the speculative investors cannot be permitted to misuse the Code as a debt recovery mechanism. In paragraph 18.1, the Hon’ble Supreme Court itself has noticed the relevant criteria for determining an allottee to be speculative investor. Paragraph 18 is as follows:-
“18. Issue No.1 - Speculative Investors
18.1.The determination of whether an allottee is a speculative investor depends on the facts of each case. The inquiry must be contextual and guided by the intent of the parties. Indicative factors include: (i) the nature and terms of the contract; (ii) the number of units purchased; (iii) presence of assured returns or buyback clauses; (iv) the stage of completion of the project at the time of investment; and (v) existence of alternative arrangements in lieu of possession. Possession of a dwelling unit remains the sine qua non of a genuine homebuyer's intent.”
When we look into the facts of the present case, present is a case where allottees i.e. Respondent Nos.1 to 6 have paid the entire consideration, leave and license for offering license fee to the Respondents was entered at the instance of the Corporate Debtor since Corporate Debtor was unable to deliver the possession of the flats. Corporate Debtor also defaulted in making the payment of license fee due to which first Section 7 application was filed by the Respondent Nos.1 to 6 which was decided in view of the Consent Terms. In the Consent Terms which was entered between the parties where the Corporate Debtor agreed that the Financial Creditor shall be paid the amount of Rs.1,96,92,000/-. In the Consent Terms, the Respondent Nos.1 to 6 have been referred to as Financial Creditors, thus, it is not now open for the Corporate Debtor/ Appellant to contend that Respondent Nos. 1 to 6 are speculative investors. We, thus, do not find any substance in the submission of the Appellant that application under Section 7 was not maintainable by Respondent Nos.1 to 6 as they being speculative investors.
The 2nd submission which has been pressed by the Appellant is that on breach of Consent Terms, application under Section 7 cannot be filed. As noted above, Consent Terms between the parties were entered in the first company petition which was filed by the Financial Creditors being Company Petition No.2910 of 2019. The 1st Company Petition was filed by Respondent Nos.1 to 6 claiming the Financial Creditors in Class in which the default was claimed on the part of the Corporate Debtor. The default on the Corporate Debtor being accepted fact the Corporate Debtor entered into Consent Terms with the Respondent Nos.1 to 6 in the Company Petition. Agreeing to pay the outstanding amount to the Financial Creditors, post-dated cheques were issued. The amount which was acknowledged to be paid in the Consent Terms was amount arising out of the allotment letters issued in favour of the Respondent Nos.1 to 6. Counsel for the Respondent has rightly relied on the judgment of this Tribunal in “Desh Bhushan Jain vs Abhay Kumar-Company Appeal (AT) (Insolvency) No.124 of 2024” wherein in the earlier CIRP, Corporate Debtor approached for settlement and a Consent Terms was arrived on 26.07.2018. Post dated cheques were given and when they were dishonoured, the Company Petition was filed. Argument that 2nd petition was not maintainable and was rejected. This Tribunal in Paragraphs 19 to 22 laid down following:-
“19.We are not at all impressed with the argument of the Appellant which has been raised with the support of the decision in the case of Raj Singh Gehlot (Supra) that the application under Section 7 cannot be filed on the basis of the settlement because the said judgment is not applicable. In the case of Raj Singh Gehlot (Supra) the petition under Section 7 was filed on the basis of settlement agreement dated 07.04.2017 whereas in the present case, the first petition was not filed on the basis of settlement agreement rather it was filed on the basis of the debt due and default committed by the CD. The debt and default was admitted by the Corporate Debtor and hence, approached the Financial Creditors for entering into a settlement to make the payment in instalments through post-dated cheques both in regard to the principal as well as interest component. The Financial Creditors believed the Corporate Debtor and entered into the agreement and further on the asking of the CD filed a joint application in the first petition not only to bring on record the settlement but also to withdraw the first petition being sanguine of the fact that CD would keep its words and shall honour all the post-dated cheques in time but they were not aware of the intention of the CD as it had not made payment beyond Rs. 1,10,00,000 and were still in the arrears of more than Rs. 3 Cr. The Financial Creditor then filed the second petition of the reduced debt about which the default is not in question, therefore, the Adjudicating Authority has rightly admitted the application.
20.At this stage, we would like to observe that if this kind of tricks, played by the CD with the FC are allowed and the plea raised by the Appellant is accepted that the second petition on the ground of settlement agreement is not maintainable then it would give a premium to the unscrupulous CD to get the petition filed under Section 7 withdrawn on the basis of the settlement which was not to be ultimately followed. Definitely, this kind of attitude and act on the part of the CD is not appreciated.
21.In so far as the issue raised by the Appellant about the amount of Rs. 87 Lac. which has been paid out of the court during the pendency of this appeal to be adjusted in the amount which is stated to be due is concerned, suffice it to say that the Appellant has not brought on record any writing/agreement in this regard that the said amount has been paid towards the adjustment of the principal amount otherwise the Financial Creditor is entitled to adjust the amount towards the payment of interest component at the first instance.
22.Thus, in view of the aforesaid facts and circumstances, we do not find any merit in the present appeal and the same is hereby dismissed. The amount deposited by the Appellant in this court by way of FDR is ordered to be returned to the Appellant within a period of one month from the date of passing of this order by the Registrar after due verification.”
It is a nature of transaction which determines the maintainability of the application. When Respondent Nos.1 to 6 have filed Section 7 application claiming to be an allottee of the Corporate Debtor, the mere fact that in earlier Company Petition, a settlement was entered by Corporate Debtor which settlement has been breached by the Corporate Debtor. Corporate Debtor cannot contend that application under Section 7 is not maintainable. We, thus, do not find any substance in the submission of the Appellant that the Company Petition which was filed subsequent to the breach of Settlement Terms by the Corporate Debtor was not maintainable.
Now we come to the 3rd submission raised by the Appellant that the threshold under Section 7 is not fulfilled by the Respondent Nos.1 to 6 in their Section 7 application. Section 7 of the IBC came to be amended by Insolvency and Bankruptcy Code (Amendment) Act w.e.f. 28.12.2019. Section 7 as amended is as follows:-
“7. Initiation of corporate insolvency resolution
process by financial creditor. (1) A financial creditor either by itself or jointly with [other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Government] may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred.
[Provided that for the financial creditors, referred to in clauses (a) and (b) of subsection (6A) of section 21, an application for initiation corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent. of the total number of such creditors in the same class, whichever is less:
Provided further that for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent. of the total number of such allottees under the same real estate project, whichever is less:
Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first and second provisos and has not been admitted by the Adjudicating Authority before the commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, such application shall be modified to comply with the requirements of the first or second proviso within thirty days of the commencement of the said Act, failing which the application shall be deemed to be withdrawn before its admission.]
Explanation. - For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor………..”
Earlier Section 7 application was filed by Respondent Nos.1 to 6 when above amendment had not come and in earlier Company Petition, Consent Terms were entered on 01.12.2019, the subsequent petition was filed in the year 2021 by which amendment has already been made in Section 7. In the reply which was filed by the Corporate Debtor in paragraph 12, objections was taken by the Corporate Debtor that there is non-compliance of threshold limit as prescribed under Section 7(1) and the applicants (6 individual) do not constitute the threshold of 100 homebuyers or of 10% of the total homebuyers. In paragraph 12 of the reply, following has been pleaded:-
“12.Admittedly, the instant Petition under Section 7(1) of the Code has been filed by 6 Applicants claiming themselves to be the Financial Creditors (in the class of 6 Individual Home Buyers) against the Corporate Debtor. There is not even an iota of averment/pleadings and or documents attached with the present Petition by the Applicants to manifest compliance of A threshold limit as prescribed under Section 7 (1) of the Code and/or Section 21(6A)(b) of the Code. It is respectfully submitted that instant Petition filed by the Applicants (6 Individual Home Buyers) do not constitute the threshold of 100 such Home Buyers/allotees or of 10% of the total Home Buyers/allotees. It has been well settled by the Hon'ble Supreme Court's judgment in the matter of Manish Kumar Vs. Union of India and Ors. whereunder the amendments brought to Section 7(1) and Section 21(6A) of the Code mandating the threshold limit for the same class of Creditors to file a joint application under Section 7 of the Code was upheld. As such, the instant Application under Section 7 of the Code is not maintainable in law and is liable to be dismissed at the face of it. …………”
The above pleadings indicate that although it was pleaded by the Corporate Debtor that applicants do not fulfil the threshold but no details were given in the reply as to how many units are therein in the projects. In the Written Submission which was filed by the Corporate Debtor in Section 7 application, it is pleaded that there are 112 units were booked with the Corporate Debtor.
In the present Appeal, Appellant again has pleaded that there are 112 units booked by the Corporate Debtor. In the Appeal record, Appellant has not filed any material except five redacted agreements entered with allottees. In the rejoinder affidavit which was filed by the Appellant to the reply on behalf of the Respondent Nos.1 to 6, Appellant again pleaded that there are 112 units allotted. A list of 81 allottees with whom it was claimed that the Registered Agreement has been entered was annexed along with the rejoinder as Annexure A-2. In paragraph 6(e) of the rejoinder-affidavit, following has been pleaded by the Appellant:-
“6(e) It is a matter of record that around 112 Units were booked by the respective Allottees with the Corporate Debtor in the Project prior to the enforcement of RERA Act. Of 112 Units booked, 81 registered sale agreements were executed between the Corporate Debtor and the concerned allottees in respect of the Units booked in the Project. Infact, a list of 81 allottees/homebuyers with whom the registered Agreement(s) to Sale executed with the Corporate Debtor in respect of the project Sai Hermitage is annexed herewith and marked as Annexure A-2.”
In the Appeal, Appellant has brought on the record certain information as available in Maharashtra RERA application. It appears that that record was not before Adjudicating Authority. Counsel for the Respondent submitted that even as per the record, which was brought by the Appellant, of Maharashtra RERA, in the information pertaining to number of allotment, the number of booked allotment figure has been mentioned as zero. The submission of the Respondent that information as available in Maharashtra RERA, the booked allotment is mentioned as zero is not even as per the case of the Appellant who claims 6 allottees of the project. Respondent further submits that at best there are 54 units only.
Now we come to the impugned order where the Adjudicating Authority has dealt with the said contention. In paragraph 25 of the impugned order, the Adjudicating Authority has dealt with the submission of the Corporate Debtor that the condition precedent to file a petition under Section 7 is not met the threshold of 100 number of allottees and/or are 10% of the total allottees. Paragraph 25 is as follows:-
“25.The Ld. Counsel for the Corporate Debtor further raised the contention that Petitioners failed to meet the condition precedent to file a petition under Section 7 of the IBC i.e. to meet the threshold of 100 number of allottees and/or are 10% of the total allottees for the same project. Addressing the same, the Petitioners submitted that the Corporate Debtor failed to provide any substantial proof over construction of 400 flats on the said premise and therefore, no other allotments were made except in favour of Petitioners. Therefore, it is concluded that Financial Creditors, being the only allottees in the Project, meet the requisite threshold to maintain the present Petition. The bench is of the view that information relating to allotment of flats to other allottees are not available in the present case, and also proof for the same is also not provided by the Corporate Debtor. Therefore, this Bench concludes that the present Petitioners, meet the required threshold.”
The Adjudicating Authority has not returned any finding with regard to number of allotments made by the Corporate Debtor and as to whether six allottees who are Respondent Nos.1 to 6 fulfilled the threshold rather Adjudicating Authority has observed where submission was noted that the Corporate Debtor has failed to provide any substantial proof over construction of 400 flats on the said premise and therefore, no other allotments were made except in favour of Petitioners. The fact that the Corporate Debtor has not provided any substantial proof over construction of 400 flats was not relevant. Admittedly, project has been registered in Maharashtra RERA. Adjudicating Authority has come to the conclusion that the information relating to allotment of flats to other allottees being not available in the present case and also proof of the same is also not provided by the Corporate Debtor, therefore, the Bench concluded that the present petition meets the threshold. Both the parties in the present Appeal has brought certain additional materials regarding their respective claims of number of allottees including information available in Maharashtra RERA. The requirement under Section 7(1) is that application under Section 7 can be filed for initiating CIRP against the Corporate Debtor shall be filed jointly be not less than one hundred of such allottees under the same real estate project or not less than 10% of the total number of such allottees under the same real estate project whichever is less, is thus statutory requirement. The Adjudicating Authority had to record a positive finding that number of allottees who have filed the application does meet the threshold as required by 2nd proviso of Section 7(1).
In the facts of the present case especially the fact that certain materials which have been brought by both the parties in the record of this Appeal which were not available before the Adjudicating Authority, ends of justice be served in remanding the matter to the Adjudicating Authority for fresh consideration of the question as to whether application filed by Respondent Nos.1 to 6 meet the threshold as required by Section 7(1) 2nd proviso. We grant liberty to the Corporate Debtor to file an additional affidavit bringing on record all relevant materials which it relies with respect to number of units allotted in the project within three weeks from today. Respondent Nos. 1 to 6 are also allowed three weeks’ time to file reply to the additional affidavit. Adjudicating Authority after considering the materials brought on record and after hearing the parties may determine the issue “as to whether the application filed by Respondent Nos. 1 to 6 being CP (IB) No.88 of 2021 fulfils the threshold as provided under Section 7(1) 2nd proviso. No other issue need to be decided by the Adjudicating Authority consequent to this remand order. Other issues have already been decided in favour of the Respondent Nos.1 to 6/ applicants of Section 7 application. In event the Adjudicating Authority finds the threshold to be fulfilled consequential orders be passed. We request the Adjudicating Authority to expeditiously dispose of the matter.
In result, the Appeal is allowed. The order impugned is set aside. Case is remanded to the Adjudicating Authority to consider the question as indicated above and pass fresh order in accordance with law. The Adjudicating Authority shall endeavour to dispose of the application expeditiously. In view of our order in Company Appeal (AT) (Insolvency) No.1386 of 2023, Contempt Application No.34 of 2020 is closed.