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Judgment
O R D E R
PER: ATUL CHATURVEDI, MEMBER (TECHNICAL)
The application has been filed under Section 60(5) of the Code, 2016 read with Rule 11 of the NCLT Rules, 2016 by Applicant seeking following prayers:-
a. To allow the present Application;
b. Issue appropriate directions declaring the arbitrary decision of reduction of claim of the applicant in contravention of law and consequently issue appropriate directions for amendment of the claim list submitted by the Resolution Professional and accept the claim in full.
c. To pass any other orders as this Adjudicating Authority may deem fir under the facts and circumstances of the present case.
The present Application has been filed by one Mr. Satish Kumar Narang being a homebuyer. The Corporate Debtor is engaged in the business of Real estate activities including buying and selling real estate properties on contract basis.
It is submitted by the Ld. appearing for the Applicant that, the Applicant executed Builder Buyer Agreement dated 28.10.2015 with the Corporate Debtor towards purchase of Apartment of an area of 2295 Sq. Ft. The Applicant paid Rs. 85,71,825/- towards the purchase of apartment in residential project ‘Victory Infratech Private Limited’.
It is further submitted that, the Corporate Debtor failed to give possession of the apartment to the Applicant.
It is further averred that, on 06.09.2019 CIR process was initiated against the Corporate Debtor by this Adjudicating Authority and Resolution Professional was appointed. Further, Applicant filed the claim with all requisite formalities along with proof of Rs. 1,32,00,165/-. The claim of Applicant was verified by the Resolution Professional. The claim was reduced without any justification.
In response, the Ld. Counsel appearing for the Respondent submitted that, in pursuance of the public announcement made by the IRP, on 18.11.2019 the Applicant filed their claim for Rs. 1,32,00,165/- as a Financial Creditor of the Corporate Debtor with respect to Flat No. D2-902. Further, based on additional information received from tally data and CRM data, the Resolution Professional verified claims of all the creditors and a revision was carried out in terms of Regulation 14(2) of IBBI Regulations.
It is further submitted that, during the process of verification based on additional information the RP observed that a large number of flats were agreed to be sold by the Corporate Debtor/ its promoters to more than one buyer. A same flat was sold to two homebuyers on different dates, and in some cases, the same flat was even sold to a third homebuyer. The Applicants have failed to prove that sale consideration of Rs. 85,71,825/- towards the said unit was disbursed to the Corporate Debtor.
We have heard the arguments advanced by the Ld. counsel appearing for the Applicant as well as for the Resolution Professional.
The claim of Applicant is based on the fact that, the Respondent/RP has not admitted full claim. We have perused the record available on record and we are of the considered view that, it is obligatory on the part of the Resolution Professional to collate, verify and admit such claims of all the creditors, which are duly supported by the appropriate evidence along with proper books of Accounts of Corporate Debtor. Therefore, The Resolution Professional can always ask for information/documents/evidence and even can revise the amount claim, when Resolution Professional comes across additional information i.e., the books of accounts (Tally data) and customer relationship management data (CRM data), warranting such revision, as done in the present case. We also hold that, mere placing a Builder Buyer Agreement on record which is signed by the party does not prove that a payment was made and it should be supported with proof of payments. The Respondent has placed on record the copy of receipt for Rs. 5,00,000/- paid by the Applicant no more payment proofs are available on record. Therefore, we have no hesitation to hold that the Resolution Professional has verified the claims correctly of all creditors on the basis of information received from Tally Data and CRM Data and carried out revision of claims as per terms of Regulation 14(2) of CIRP Regulations.
It is pertinent at this stage to refer the decision of Hon’ble NCLAT given in Shabeena Ashrad & Anr. vs. Nilesh Sharma (RP) Company Appeal (AT) 581 of 2021. The relevant paragraph is reproduced below for reference: -
‘The Payments claimed to be made by the Petitioners/Appellants for one Mr. Rohit were not supported with any of the entries in the Books of Account' of the Corporate Debtor then I.A. No. 2771 of 2020 filed by the Applicants/Appellants seeking issuance of direction to the Resolution Professional of the Corporate debtor accept the claim in full filed by the Applicants is not maintainable and in fact the Adjudicating Authority had pertinently proceeded to observe in the impugned order that RP had admitted the claim of Rs. 15,75,279/- after allowing interest 8% on Rs. 15,29,057/- which was rightly calculated, which was not arbitrary in nature and no direction can be issued to the Resolution Professional etc. We are in complete agreement with the view taken by the Adjudicating Authority' in dismissing the application. Looking at from the angle, the Appeal sans merits’.
It is also noted that, the Committee of Creditors (CoC) has approved the Resolution Plan by 90.66% and Application under 30(6) of IBC is pending before this Adjudicating Authority.
“Hon’ble Supreme Court in recent Judgment in M/s. R.P.S. Infrastructure Limited Vs. Mukul Kumar and Anr. (Civil Appeal No. 5590 of 2021) has already taken the view that after approval of the plan by the CoC, the claims cannot be entertained. There is no dispute with the facts that the claim was filed by the Appellant after approval of the plan by the CoC. The Appellant has also not been able to show that claim of the Appellant was reflected in the records of the Corporate Debtor”.
In the light of the above findings, IA – 4935/2020 stands dismissed.