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Judgment
O R D E R
Heard Learned Counsel for the Appellant.
This Appeal has been filed against the Order dated 09.01.2023 by which National Company Law Tribunal, Mumbai Bench has rejected I.A. No. 1810 of 2022.
The Appellant before us has booked a flat in the project of the Corporate Debtor and has made an advance payment of Rs. 4,95,000/- and total amount paid by the Appellant is Rs. 5,27,500/-. The notices were issued by the Corporate Debtor to the Appellant to make the balance amount. Last such letter was issued on 27th September, 2018 asking the Appellant to make payment of Rs.21,84,377 and Appellant did not make any payment in pursuance of the notice. Subsequently, the CIRP was initiated on 30th April, 2021 against the Corporate Debtor. There has been certain correspondence between the Appellant and the Resolution Professional but ultimately the unit which was sought to be claimed was included in the list of unsold units and subsequently the Resolution Plan has been approved on 09th January, 2023. The Application was filed by the Appellant being I.A. No. 1810 of 2022 seeking direction to the Resolution Professional to register the agreement for sale in respect of Flat No. 904, wing 9, which application has been rejected.
Learned Counsel for the Appellant contends that Resolution Professional himself has communicated about the CIRP to the Appellant and the Corporate Debtor has informed the IRP that appellant’s allotment is not in the cancelled list hence the application ought to have been allowed.
Learned Counsel for the Respondent refuting the submissions of Learned Counsel for the Appellant contends that appellant having not made the payment as per the notices issued last such being issued on 27.09.2018, he cannot claim any entitlement and his name was rightly not included against any allotment.
We have considered the submissions of Learned Counsel for the parties and have perused the record.
The letter dated 27.09.2018 which is admitted by the Appellant was issued by the Corporate Debtor to the Appellant. Paragraph 5 provides as follows:
“We hereby kindly remind you to make the payment of the aforesaid outstanding amounts within a period of 30 (thirty) days from the date of this letter, failing which, we shall assume that you are no longer interested in continuing with the captioned Application and therefore we shall treat your Application as withdrawn on the expiry of the aforesaid 30 (Thirty) day period.”
The Adjudicating Authority has relied on the letters issued to the appellant where appellant has not made payment and ultimately after 2018 he can not claim himself to be allottee. We are of the view that no error has been committed by the Adjudicating Authority rejecting I.A. No. 1810 of 2022 filed by the Appellant, she having not made the payment against the allotted flat and by virtue of paragraph 5 in the letter, it was clearly indicated that if within 30 days amount is not paid it will be assumed that appellant was no longer interested in continuing with the captioned application.
We further notice that SRA has offered before the Adjudicating Authority that they shall refund the earnest amount paid by the appellant. We thus are of the view that no grounds have been made out to interfere in the Appeal. The Appeal is dismissed. The earnest money shall be refunded within two weeks.