AI Structured Summary
Not yet generated for this judgment
Judgment
ORDER
16.08.2022: Heard Mr. P.H. Arvindh Pandian, the Learned Senior Counsel for the Appellant / Respondent and Mr. Rajkumar Jhabakh, the Learned Counsel appearing for the Respondents / Petitioners / Financial Creditors. It comes to be known that that the ‘Adjudicating Authority’ (National Company Law Tribunal, Bengaluru Bench, Bengaluru) while passing the ‘impugned order’ in CP (IB) No.119/BB/2021 (filed under Section ‘7’ of the Insolvency & Bankruptcy Code, 2016) by the Respondent / Financial Creditor / Applicant) at Paragraph Nos.13 to 17 had observed the following:-
“13.The instant C.P. was filed originally by 169 Flat Buyers. Thereafter, vide order dated 24.05.2022 in I.A. No.128 of 2022, 15 other Homebuyers of the same real estate project got impleaded in the C.P. as Petitioners and thereby the total number of Petitioners in the C.P. are now 184. The 1st Petitioner i.e., Shri Sethuraman Mahadevan and the 2nd Petitioner i.e., Shri Bipul Battacharya filed the C.P. directly along with their supporting individual affidavits and signed the vakalatnama. The Petitioner Nos.3 to 184 have only given authorisation letters in favour of the Petitioner Nos.1 and 2 authorising them to sign on their behalf and to file the C.P.
14.As pointed out by the learned Senior Counsel appearing for the Respondent / Corporate Debtor that except in case of the 3rd Petitioner i.e., Shri Rohit Menon, the signature of the respective Petitioners were not attested by either any Advocate or notary public. Further, as pointed out by the Learned Senior Counsel appearing for the Respondent / Corporate Debtor there were a number of joint purchasers of various units, but only one of them issued the said unattested and un-notarised authorisation letters in favour of the Petitioner Nos.1 and 2. Admittedly, there were number of Applicants who are the Residents in various Countries other than India and the alleged authorisation letters issued by them were not in accordance with law, as applicable, in the respective Countries where they reside. There was no explanation from the Petitioner Nos.1 and 2 about the invalid, unattested and un-notarised authorisation letters of the Petitioners. It is also not the case of the Petitioners that the authorisation letters without even identifying the signature of the dependent by a notary public or as per the rules in force applicable in a particular Country where the respective Petitioner is residing, are valid as per law.
15.Similarly, with regard to non-joining of the joint owners of number of flats, no explanation forthcoming from the Petitioners. Though the Respondent raised various objections as observed above, with regard to the authenticity and validity of the authorisation given to the Petitioner Nos.1 and 2, no steps were taken and no explanation was given till date. Therefore, the C.P. is to be considered as if filed by the Petitioner Nos.1 and 2 only and thereby does not satisfy the minimum requirement of 10% or 100% in number, whichever is less, and accordingly, liable to be dismissed on this ground alone. Accordingly, issue Nos.1 and 2 are held against the Petitioners.
16.In view of holding issue Nos.1 and 2 against the Petitioners, there is no need to delve upon the remaining issues.
17.In the circumstances and for the aforesaid reasons, the instant C.P. is dismissed. However, this order shall not preclude the Petitioners from filing a fresh C.P. in accordance with law, if they are so desired.” and ultimately dismissed the ‘Company Petition’.
The ‘Adjudicating Authority’ had proceeded to observe in the ‘impugned order’ that the dismissal of the ‘Instant Company Petition’ shall not preclude the Respondents / Petitioners / Financial Creditors from filing a fresh Company Petition, in accordance with ‘Law’, if they are so advised.
On being dissatisfied with the ‘impugned order’ dated 24.06.2022 passed in CP (IB) No.119/BB/2021 by the ‘Adjudicating Authority’ (National Company Law Tribunal, Bengaluru Bench, Bengaluru), the Learned Senior Counsel for the Appellant in the instant Company Appeal (AT)(CH)(Ins) No.299/2022 before this ‘Tribunal’ submits that the ‘aspect of whether the speculative investors’ shall claim the ‘status of Financial Creditors’ under explanation S.5(8)(f) of the Insolvency & Bankruptcy Code, on this crucial issue / points for consideration was not framed by the ‘Adjudicating Authority’ and also not answered by the ‘Adjudicating Authority’.
In this connection, the Learned Senior Counsel for the Appellant adverts to the ‘counter’ / ‘statement of objections’ filed by the Appellant / Corporate Debtor / Respondent (through its authorised signatory) raising a ‘preliminary objection’ that the Respondents / Petitioners do not come under the purview of S.5(8)(f) of the Code and when a specific plea, in this regard, was raised by the Appellant / Corporate Debtor / Respondent, that vital aspect was not either framed as a point for consideration nor it was referred to in the ‘impugned order’, as an incidental and ancillary issue, while dismissing the Application on the ground that the Respondent Nos.1 and 2, who do not satisfy the requirement of 10% or 100% in number and, as such, the ‘impugned order’ bristles with Legal infirmity in the eye of Law.
Furthermore, the ‘Adjudicating Authority’ in the ‘impugned order’ at Paragraph 13 had clearly mentioned that out of 184 Petitioners / Respondents, the 1st Petitioner / 1st Respondent in the Appeal (Mr. Sethuraman Mahadevan) and the 2nd Respondent (Mr. Bipul Bhattacharya) had filed their main Company Petition directly together with supporting individual Affidavits and filed ‘Vakalatnama’. But, in respect of Respondent No.3 to 184 / Petitioners, the ‘Adjudicating Authority’ had found that they had given only Authorisation Letters to and in favour of the 1st and the 2nd Respondent / Petitioner Nos.1 and 2, authorising them to sign on their behalf and to file the Company Petition.
The Learned Counsel for the Appellant cites the decision in Nidhi Rekhan – Versus – Samyak Projects Pvt. Ltd. reported in 2022 SCC online NCLAT – 46 (Company Appeal (AT) (Ins) No. 1035 of 2020 Decided on January 31, 2022) whereby and whereunder at ‘Paragraph 14’ it is observed as under:-
“14.Moreover, in the present case, where an unduly high rate of interest of 24% p.a. on the deposited amount has been assured by the Corporate Debtor, coupled with the fact that after one year of booking the flats the first party (the allottee) can cancel or rescind the agreement and take back refund along with assured interest, the depositor cannot be considered a person who is genuinely interested in purchasing of flats/apartments and can therefore get the status of financial creditor being an allottee in accordance with Explanation (i) of section 5(8) of IBC. We are of the view that the status of Financial Creditor cannot be provided to a person who, in the garb of an allottee comes in the project as a speculative investor and for no reason cancels the allotment, which is the case in the present appeal. Therefore, the benefit of section 5 (8)(f) of IBC will not enure in her favour. We are of the view that the facts in the matter of Mansi Brar Fernandes v. Sudha Sharma (supra) are akin to the facts of the instant case and therefore the related order squarely applies to this case.”
The real grievance of the Appellant is that in the event of the Respondent is preferring a fresh Company Petition before the ‘Adjudicating Authority’ passed with the liberty being granted by the ‘Adjudicating Authority’ in the impugned order dated 24.06.2022 in CP (IB) No.119/BB/2021, then in that event the Appellant shall not be deprived of the liberty to raise all ‘factual’ and ‘legal plea’ available to it in the manner known to ‘Law’ and in accordance with ‘Law’.
Per contra, it is the submission of the Learned Counsel for the Respondent Nos.1 to 184 that the instant ‘Company Appeal’ preferred by the Appellant is not maintainable, because of the fact that the main CP (IB) No.119/BB/2021 was dismissed by the ‘Adjudicating Authority’ by passing the ‘impugned order’. However, the ‘‘Adjudicating Authority’ had granted ‘Leave’ to the Respondents / Petitioners / Financial Creditors to prefer a ‘Fresh Company Petition’, in accordance with ‘Law’, if they are so advised and, therefore, always in ‘Law’, it is open to the Appellant, to raise all available defences both on ‘Facts’ and on ‘Legal pleas’.
This ‘Tribunal’ had heard the Learned Senior Counsel for the Appellant and the Learned Counsel for the Respondent Nos.1 to 184 and noted their ‘contentions’.
As far as the present case is concerned, this ‘Tribunal’ on going through the ‘impugned order’ dated 24.06.2022 in CP (IB) No.119/BB/2021 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Bengaluru Bench, Bengaluru) is of the considered view that at Paragraph No.12 of the ‘impugned order’ although ‘five issues’ were framed for consideration by the ‘Adjudicating Authority’, therein no specific issue / point being framed or raised for consideration viz., whether the Respondents / Petitioners / Financial Creditors are the speculative investors, who come within the ambit of Financial Creditors as per the explanation (i) of S.5(8)(f) of the Insolvency & Bankruptcy Code, 2016.
In this connection, this ‘Tribunal’ refers to the sentences occurring in Paragraph ‘5’ of the ‘impugned order’ i.e., “As per Section 5 (8) (f) of the Insolvency & Bankruptcy Code, 2016, the Applicant should be ‘allottee’ as per RERA, hence all the Applicants are Allotees”. Apart from that, in view of the fact that it is brought to the notice of this ‘Tribunal’ during the hearing of the Instant Company Appeal (AT)(CH)(Ins) No.299/2022, on behalf of the Respondents / Petitioners / Financial Creditors that they had also preferred ‘An Appeal’ before this ‘Tribunal’ and the same is not before this ‘Tribunal’ as it is in an unnumbered stage and this ‘Tribunal’ upon hearing the contentions / advanced on respective sides comes to a definite conclusion that the ‘Adjudicating Authority’ had not framed the issue (Petitioners in Application / Respondents in Appeal) are Speculative Investors and whether they can be termed as ‘Allottees’ in terms of S.5(8)(f) of the Code.
Although the ‘Adjudicating Authority’ (National Company Law Tribunal, Bengaluru Bench, Bengaluru) had dismissed the CP (IB) No.119/BB/2021, this ‘Tribunal’ keeping in mind of the ‘prime fact’ that in ‘Law’, there is ‘no Estoppel against Statute’, to raise all ‘Factual’ and ‘Legal’ issues / contentions in a ‘Legal Proceedings’ before the ‘Competent Forum’, at this stage, without delving deep into the merits of the matter nor expressing any opinion, one way or the other on the controversies / disputes centring around the Case, permits the Appellant to raise all ‘Factual’ and ‘Legal Pleas’ / available defences in ‘Law’ before the ‘Adjudicating Authority’ (National Company Law Tribunal, Bengaluru Bench, Bengaluru), in the event of the Respondents / Petitioners / Financial Creditors preferring a fresh Company Petition and in that event, the ‘Adjudicating Authority’ (National Company Law Tribunal, Bengaluru Bench, Bengaluru) is necessarily to deal with the issue / point on Legal plane as to whether the Respondents / Petitioners / Speculative Investors are Allottees (in view of the stand taken earlier by the Appellant / Corporate Debtor before the ‘Adjudicating Authority’ (National Company Law Tribunal, Bengaluru Bench, Bengaluru), in terms of the ingredients of S.5(8)(f) of the I&B Code, 2016 and to proceed further on merits, and to dispose of the said Petition / Application in a fair, just, unbiased, uninfluenced and untrammelled with any of the observation made by this ‘Tribunal’, in this ‘Appeal’.
With the above said observations and directions, the instant Company Appeal (AT)(CH)(Ins) No.299/2022 stands ‘disposed of’. No Costs. The connected IA No.624/2022 (leave on seeking additional documents) is Closed.