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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard Mr. Murari Lal Ahuja and Mrs. Saroj Bala, the complainants in-person and Mr. Siddharth Relan, Advocate, for the opposite party.
The opposite party has been filed IA/6944/2023, for dismissing the complainant as during pendency of the complainant, the proceedings under Section-7 of Insolvency and Bankruptcy Code, 2016 was initiated against the opposite party before National Company Law Tribunal, Delhi, in which, Resolution Plan as submitted by M/s. KGK Realty (India) Private Limited has been approved by Committee of Creditors, in its meeting dated 17.12.2021 and approved/accepted by National Company Law Tribunal, Delhi, vide order dated 24.04.2023. In term of Resolution Plan, the project has been handed over to M/s. Dhoot Infrastructure Projects Limited, 9th Floor, Time Tower, M.G.Road, Sector-28, Gurugram for its completion.
Murari Lal Ahuja and Mrs. Saroj Bala filed above complaint for directing the opposite party to (i) refund entire amount deposited by them with interest @18% per annum, from the date of respective deposit till the date of refund; (ii) pay Rs.500000/- as compensation for mental agony, harassment and litigation costs; and (iii) any other relief, which is deemed fit and proper in the fact of the case. The complainants stated that M/s. Ramprastha Sare Realty Private Limited was company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project, in the name of “Crescent Parc” at The Grand, villages Wazirpur and Mewka, Sector-92, Gurgaon, in the year 2013 and made wide publicity of its amenities and facilities. Believing upon the representation of the opposite party, the complainants booked a flat on 19.03.2013 and deposited booking amount of Rs.1250000/-. The opposite party allotted Flat No.G-2-0201 (area 1853 sq.ft.) total cost of Rs.11746530/- and executed Flat Buyer’s Agreement dated 24.09.2013. Payment Plan was “time linked payment plan”. Clause-3.3 of the agreement provides that the builder shall endeavour to offer possession of the said flat within a period of 40 months from the date of commencement of the construction. The complainants deposited the instalments on time and made total payment of Rs.6663937/- till 22.09.2016. Due date of possession expired in July, 2016. On inquiry, the opposite party earlier informed that possession would be delivered in December, 2016, later on changed the date as March, 2018. Due to inordinate delay in handing over possession, purpose of booking of the flat was frustrated. Then the complaint was filed.
On the application of one secured creditor of the opposite party, namely Asset Care and Reconstruction Enterprises Limited, under Section-7 of Insolvency and Bankruptcy Code, 2016, the proceeding of Company Petition No.(IB)-300(PB) of 2020 was initiated before National Company Law Tribunal, Delhi against the opposite party, in which, moratorium has been declared on 01.03.2021 and Interim Resolution Professional was appointed. Committee of Creditors in its meeting dated 19.04.2021 confirmed the appointment of Interim Resolution Professional. Mr. Rakesh Verma was appointed as representative of home buyers of the project by IRP, which was approved by NCLT vide order dated 01.06.2021. Pursuant to notification, 6 Resolution Applicants submitted their Resolution Plans. Committee of Creditor, in its meeting dated 17.12.2021, approved the Resolution Plan of Consortium of KGK Realty (India) Private Limited. National Company Law Tribunal, Delhi, vide order dated 24.04.2023, approved/accepted it. In term of Resolution Plan, the project has been handed over to M/s. Dhoot Infrastructure Projects Limited, 9th Floor, Time Tower, M.G. Road, Sector-28, Gurugram, for its completion.
In view of overriding effect of the provisions of Insolvency and Bankruptcy Code, 2016 as well as approval of Resolution Plan for completion of the project, the opposite party has filed IA/6944/2017, for dismissing of the complaint, which was filed for refund of money.
I have considered the arguments of the counsel for the parties and examined the record. Section 31(1) and Section 239 of Insolvency and Bankruptcy Code, 2016 are quoted below:-
Section-31(1): Approval of Resolution Plan:- If adjudicatory authority is satisfied that the resolution plan as approved by committee of creditors under sub-section (4) of Section 30 meets the requirements as referred to sub-section (2) of Section 30, it shall by order approve the resolution plan, which shall be binding on corporate debtor and its employees, members, creditors, including central government or state government or any local authority to whom a debt in respect of payment of dues, arising under any law for the time being enforce, such an authority to whom statutory dues are owed, guarantors and other stake holders involved in the resolution plan.
Supreme Court in Ghanshyam Mishra & Sons (P) Ltd. Vs. Edelweiss Assets Reconstruction Co. Ltd., (2021) 9 SCC 657, (paragraph-102.1) held that once resolution plan is duly approved by adjudicatory authority under sub-section(1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on all corporate debtor and its employees, members, creditors, including central government or state government or any local authority to whom a debt in respect of payment of dues, arising under any law for the time being enforce, such an authority to whom statutory dues are owed, guarantors and other stake holders involved in the resolution plan. On the date of approval of resolution plan by the adjudicatory authority, all such claims, which are not part of resolution plan shall stand extinguished and no person will be entitled to initiate or continue any proceeding in respect of a claim, which is not part of resolution plan.
In Ajay Kumar Radheyshyam Goenka Vs. Tourism Finance Corporation of India, 2023 SCC OnLine SC 266, (paragraph-60) held that thus from aforesaid, it is evident that the creditors has no option but to join the process under IBC. Once the plan is approved, it would bind everyone under the sun. The making of a claim and accepting whatever share is allotted could be termed as an “Involuntary Act” on behalf of the creditor. The making of a claim under the IBC and accepting the same and not making any claim, will not make any difference in the light of Section 31 of the IBC. Both the situations will lead to Section 31 and the finality and binding value of the resolution plan.
As per provision of Insolvency and Bankruptcy Code, 2016, an allottee of the flat/plot in the project of the corporate debtor is a financial creditor and Resolution Plan after its acceptance under Section 31 is binding. In view of the overriding effect of Insolvency and Bankruptcy Code, 2016, the remedy can be availed as per approved Resolution plan and not anywhere else. This Commission has no jurisdiction to proceed and decide the complaint.
O R D E R
In view of the aforesaid discussion, the complaint is dismissed with liberty to avail their remedy as per Resolution Plan.