Nirav Vikaram Maniar vs Jayesh Sangharika

Anuradha Sanjay Bhatia, Member (Technical)

The above captioned I.A. 3411 of 2022 is filed by Mr. Nirav Maniar and Mrs. Namita Maniar jointly, under the capacity of a Financial Creditor under the head of “Homebuyers”. They claimed to have purchased Flat No. 501 in Wing 10, TEN BKC, MIG colony-Group I, Opp. MHADA Office, N. Dharmadhikari Road, Gandhinagar, Bandra (E), Mumbai- 400051 in the residential project under the name “TEN BKC” registered with RERA.

The learned Counsel for the Applicant, submits before this Bench, that the Applicant had paid an amount of Rs 40,65,770/- in the abovementioned residential project. The total consideration amount for the said flat was Rs. 2,25,66,600/-. The promoters were statutorily bound to enter into a registered agreement in compliance with the RERA Act and when the Applicants approached the Promoters to execute and register in respect of the said unit, the Promoters had outrightly refused. The Applicant thereafter, filed a Complaint u/s 13 of the RERA Act, 2016 before MahaRERA bearing Complaint No. CCOO6000000196468 of 2021 against the Promoters. The Corporate Debtor viz. Radius Estates and Developers Private Limited was admitted into CIRP 30.04.2021 and Respondent No.2 in this captioned application was the successful Resolution Applicant, i.e. Adani Goodhomes Pvt. Ltd. (hereinafter referred to as “Adani”).

The Resolution Professional thereafter duly uploaded on the website the list of the financial creditors. It was brought to the notice of this Tribunal by the Learned Counsel for the Applicant that the Hon’ble MahaRERA authority, had passed an order dated 06.06.2022, in applicant’s favour and granted a relief, for the execution and registration of the sale agreement, with respect to the said unit in the said property, in the Applicant’s name. Thereafter, the applicant wrote several times to the Respondent to comply with the said order of MahaRERA but the Respondent have not done so. In fact, the Applicants had even published a public notice in the newspaper “Times of India” on 07.09.2022 cautioning the public at large not to deal with the said unit.

It was further brought to the notice of this Tribunal that the Resolution Professional has filed Appeals in the MahaRERA Appellate Tribunal, against the said order of MahaRERA, on the ground of moratorium and cancellation of the allotment of the Applicants. Being aggrieved by this act of the Respondent-RP, the present application was filed to restrain the Respondent from selling, alienating, encumbering, parting with possession, in any manner and to execute and register the agreement for sale, in favour of the Applicant, in respect to the sale of unit being Flat No. 501 in Wing 10, TEN BKC, MIG colony-Group I, Opp. MHADA Office, N. Dharmadhikari Road, Gandhinagar, Bandra (E), Mumbai- 400051 in the said project.

The Applicant have made the following allegations in the application-

a. That the Applicants have an allotment in respect of the Unit in the Project, made under a Booking Form, dated February 14, 2017, “Booking form”) from the Corporate Debtor and MIG and that they claim to have paid a sum of Rs.40,65,770/- out of a total consideration of Rs.2,25,66,600/-

b. Since the Agreement of Sale was not executed by the ex- Promoters of the Corporate Debtor, the Applicants approached RERA by filing a Complaint No. CC006000000196468 of 2021, and by common order dated June 06, 2022, (“RERA Order”) it was observed by MahaRERA that the concerned respondent-promoter who has privity with the complainants are liable to execute the Agreements in favour of the complainants and the parties may take necessary action for compliance of this order after disposal of the proceeding pending before respective forums including NCLT, Mumbai.

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDNET NO. 1/ RESOLUTION PROFESSIONAL AND RESPONDENT NO.2/ RESOLUTION APPLICANT:

The Learned Senior Counsels for the Respondent No. 1 and Respondent No. 2, submitted before this Bench, that all the details regarding the Project including details of sold and unsold units are provided by the erstwhile Board of Directors/Promoters of the Corporate Debtor and the same were handed over to Respondent No. 2. As per the details provided by the erstwhile Board Of Directors/promoters of the Corporate Debtor, this Unit viz. Flat No. 501 in Wing 10, TEN BKC, MIG colony-Group I, Opp. MHADA Office, N. Dharmadhikari Road, Gandhinagar, Bandra (E), Mumbai- 400051 was under the caption of “cancelled units”.

It  was  submitted  that  since  the  Hon’ble  Tribunal  had  declared ‘Moratorium’ under Section 14 of the Code, in respect of the Corporate Debtor, vide its order dated April 30, 2021, thereby prohibiting institution or continuation of proceedings against the Corporate Debtor before any court, tribunal or authority, and given that the Complaint No. CC006000000196468 was a proceeding launched against the Corporate Debtor before MahaRERA Authority, the proceedings could not have been initiated before the said Authority and that RERA Order could not have been passed against the Corporate Debtor.

The said MahaRERA Order is without jurisdiction and contrary to the provisions of IBC 2016. It is settled law that in case of conflict between RERA and IBC in respect of claims of homebuyers under resolution plans under IBC, RERA has to give way to IBC by virtue of the overriding provision in Section 238 of IBC 2016. This position has been reaffirmed by the Hon’ble Supreme Court of India in its rulings in Pioneer Urban Land and Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416 and Jaypee Kensington Boulevard Apartments Welfare Assn. v. NBCC (India) Ltd., (2022) 1 SCC 401.

The Applicants only had a provisional allotment and, therefore, there was no concluded contract. Further, no confirmation letter or any other document regarding allotment of the Unit has been disclosed in the pleadings of the Applicant, other than the Booking Form, which, as mentioned herein, was only a provisional allotment.

The Applicant’s attorneys had stated that allotment in respect of the said Flat was confirmed but the said allotment confirmation letter was not placed before Hon’ble Tribunal.

Lastly, the Resolution Application has filed an Affidavit in reply where in it is confirmed that they are ready and willing to refund the principal amount.

Findings :-

Heard the Learned Counsel for the Applicants and learned Senior counsels appearing for Respondent No. 1 and Respondent No. 2. The Applicants submit before us that they are financial creditors in the class of “home buyers” and had paid money to the Corporate Debtor as and when demanded by the then promoters. The Applicants have admittedly paid the consideration amount of Rs. 40,65,770/, a fact which is not disputed by the Respondent No. 1 or Respondent No. 2. The Applicant showed this Hon’ble Bench a Booking form (Pages 32 to 45 of the application) which were subsequently confirmed by the confirmation letter.

The confirmation letter dated 09.03.2017 was presented before this Bench during the course of the hearing and as per the confirmation letter dated 09.03.2017, the authorised signatories have confirmed the receipt

of the entire application money in respect of Flat No. 501 in Wing 10, TEN BKC, MIG colony-Group I, Opp. MHADA Office, N. Dharmadhikari Road, Gandhinagar, Bandra (E), Mumbai- 400051 in the residential project under the name “TEN BKC”. Booking form was also duly signed by Radius Estates and Developers Private Limited (Corporate Debtor) and the letter of confirmation was signed by MIG (Bandra) Realtors and Builders Pvt. Ltd. and Vishwaroop Estates and Developers Pvt. Ltd.

The Counsel for the Applicants stated before us that he had not produced the “confirmation letter” as part of the application previously, as the confirmation of the booking was never in controversy, until the learned Counsel for the Resolution Applicant (Adani) pointed out in oral submissions that such a confirmation is necessary, at which point a copy of the said confirmation was produced before this Bench, which has also not been controverted by the Resolution Professional.

The Applicant approached the MahaRERA being the appropriate remedy available in law vide their Complaint in March, 2021 which is prior to the initiation of the present CIRP proceedings, which were initiated on 30.04.2021. Despite having appeared before MahaRERA, the Resolution Professional did not take any objections with regards to the maintainability, allegedly on account of moratorium, neither did they file any written submissions. Though it has been clarified that the RERA order was challenged before the Appellate Authority of RERA but the Resolution Professional has not placed on record any order passed by the Appellate Authority of RERA in appeal. Therefore, the plea that the RERA order in favour of the applicant is not of any value, is not sustainable considering the fact that the RERA case was filed by the Applicant prior to the initiation of CIRP in the case and imposition of moratorium.

We find that the RP has erroneously treated the said unit under the head “Cancelled Unit” in the Resolution Plan. Further, we find that no

cancellation letter or any correspondence to substantiate the same has been produced and therefore this Bench is of the view, that on the basis of facts brought before us, the application should be allowed and applicant should be treated as “Homebuyer” and the Respondents are under obligation to execute and register the sale agreement in favour of the Applicants.

Accordingly, IA 3411 of 2022 is allowed and disposed of.