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Judgment
04.03.2025: I.A. No. 4306 of 2023
This application has been filed by the Cape Town Association of Apartment Owners other IA No.706 of 2025 and IA No. 1169/2025 has been filed by YG Estates Facilities Management Private Limited. We have heard Shri Krishnendu Dutta Ld. Sr. Counsel appearing for the YG Estates Facilities Management Private Limited, Ld. Counsel for the IRP as well as Ld. Counsel appearing for the Cape Town Association of Apartments Owners. While hearing CA (AT) (Ins) No. 406/2022 filed by the Ram Kishore Arora Suspended Director of the Supertech Limited. This Tribunal had to consider various applications and on 08.07.2024 in IA No. 4306/2023 filed by the Cape Town Association of Apartment Owners the following directions were issued:-
“IA No. 4306 of 2023
This application filed by Capetown Association of Apartment Owners. The learned counsel for the applicant submits with regard to maintenance of the units there is issue since the maintenance is being carried out by the entity who was engaged by the promoters and IRP has not taken its responsibility of either changing the agency of maintenance or appointing some new agency or handing over to Association of Apartment Owners.
Learned counsel for the IRP seeks time to obtain instructions. As prayed, two weeks' time are allowed to obtain instructions.
Learned counsel for the applicant submits that with regard to several units there are OC already issued by Noida Authority however, the sub-lease deed are not been executed. IRP submits that Noida Authority has also to be heard before any directions are issued for execution of lease deed.
Let Noida Authority be impleaded as one of the respondent in L.A. No. 4306 of 2023.
Issue notice to the Noida Authority, learned counsel for the appellant may also serve the copy of the application and order to the Noida Authority personally within the period of one week from today. List this application on the next date along with other applications.
Noida Authority may also give their response with regard to claim of the appellant with regard to water and electricity connection/ water electricity charges. List the application after three weeks.”
On the subsequent date when the matter again came for consideration order was passed by this Tribunal on 19.09.2024 in IA No. 4306 of 2024 this Tribunal made following observations with respect to I.A. No.4306 of 2023:-
“10.Now coming to the Capetown maintenance IA No. 4306 of 2023 it is submitted that there is a registered association of Captetown maintenance but the earlier agency which was appointed by the promoters is still maintaining there are several lapses in the maintenance, it has been noted in the earlier orders that IRP has already issued a show cause notice to the earlier maintenance agency.
11.Ld. Counsel appearing for the Capetown maintenance submits that the registered association of homebuyers is ready to take responsibility of the maintenance and IRP may get inventory prepared of inspection of all deficiencies and handover. IRP may consider handing over the maintenance to the registered association and appropriate steps taken before the next date.”
The IRP who was part of the proceedings and was heard on above date, when the matter came for consideration again before this Tribunal on 21.10.2024 and made submissions with regard to the Maintenance Agency following was noticed in paragraph 17 of the order:-
“17.With regard to paragraph 10 and 11 of the order dated 19.09.2024 the Ld. Counsel for the IRP submits that meeting was convened on 03.10.2024 with the registered association of Captetown maintenance but there was some issue with regard to inventory and handing over possession by the earlier agency. Ld. Counsel for the registered association submits that hand over has to be in favour of the office-bearers of the registered association as functioning as on date. Let necessary handover be done and the earlier agency may also co-operate with the handing over. IRP may take necessary action with this regard and complete the process within two weeks.”
The Ld. Counsel for the IRP submits that after the order of 08.07.2024 passed by this Tribunal a show cause notice was issued on 13.07.2024 to the YG Estates, “subject” of the show cause notice states as follows:-
“Sub: Show Cause Notice regarding Common Area Maintenance (CAM) service provider YG Estates Facilities Management Pvt. Ltd. vide Agency Appointment Agreement dated September 15, 2019.”
The Ld. Counsel for the IRP referring to the show cause notice dated 13.07.2024 refers to para- v, vi, vii which are as follows:-
“v.Further, on July 8, 2024 the allottees of Project Captown agitated the objections before the Hon’ble Appellate Tribunal regarding the maintenance services being provided by you and directions have been passed upon the undersigned. A copy of the said order is attached herewith for your perusal.
vi.The IRP, on behalf of the stakeholder concerned/allottees, is sending this instant notice to resolve the issues raised by the allottees effectively. Therefore, you are hereby required to respond in writing to the objections/complaints raised by the resident allottees of Project Capetown, Project Romano, Project Eco Citi and Project Eco Villege-1. Additionally, please provide the audit reports, amount spent on augmenting infrastructure in Non-EV II Projects (as verbally communicated by you on various occasions), and any other information that you may deem fit. vii. Accordingly, you are also hereby required to show cause within ten (10) business days from the date of this notice, as to why Agency Agreement should not be terminated immediately or otherwise cancelled, failing which the undersigned reserves the right to terminate the Agency Agreement, without any further course of action/notice in this regard.”
Ld. Counsel for the YG Estates submits that the reply to the show cause notice was sent on 22.07.2024. Subsequent to the aforesaid, a meeting took place on 03.10.2024 between the YG Estates, IRP, the Home Buyers and Office bearers of the Association where the decision was taken with regard to smooth handover of the maintenance of the towers in question. It is the case of both the parties that on 13.10.2024 the YG Estates has handed over the maintenance to the Association of the Apartment Owners. It is submitted by the Ld. Counsel appearing for the Apartment Owners that Apartment Owners are maintaining the facilities from 13.10.2024.
Ld. Counsel for the Apartment Owners have also referred to the provisions of Uttar Pradesh Apartment Promotion of Construction Ownership And Maintenance Act, 2010 Section 4(7)(8), 14(1), (2)&(5). It is submitted by the Apartment Owners that it is the statutory obligation that after the association is formed the maintenance has to be handed over.
The present is the case where corporate debtor by an agreement dated 15.09.2019 has nominated the YG Estate Agency for the project and towers and it was in pursuance of the said nomination by the corporate debtor at the time when insolvency had not even commenced, the YG Estates has providing the maintenance. After the orders were passed by this Tribunal, in IA No. 706 of 2025 where the YG Estates have made the following prayers:-
“That the reliefs sought out by the Applicants are as follows:-
a)Pass appropriate direction to the IRP or NBCC as the case may to protect the interests of the Applicant and mandatorily pay the amount due to the applicant for services provided under the facilities management agreement with Supertech Ltd.
b)Direct NBCC to take into account the investment made, and outstanding amount due payable to the Applicant and make provisions for the same in its plan as a mandatory payment due.
c)Implead the Applicant as party Respondent to Company Appeal (AT) (Insolvency) No. 406 of 2022 being a necessary and proper party and allow the Applicant to file a detailed affidavit bringing forth certain additional facts and submissions;
d)Pass such other and further order(s) as this Hon’ble Appellate Tribunal may deem fit and proper in the circumstances of the case and in the interest of justice.”
Another application which has been filed by the YG Estates being the IA No. 1169 of 2025 where the following prayers have been made
“Relief Sought:
(a)Allow the present application and recall the orders dated 19.09.2024 and 21.10.2024 passed in I.A. No. 4306 of 2023;
(b)Pass such other and further order(s) as this Hon’ble Appellate Tribunal may deem fit and proper in the circumstances of the case and in the interest of justice.”
Ld. Counsel appearing for the YG Estates have fairly submitted that in view of the fact that maintenance has already been handed over on 13.10.2024 to the Apartment Owners, the YG Estates is not praying for reversal of the situation as on date. It is however submitted by the counsel for the appellant that YG Estates has entered into individual contract with the homebuyers in several independent agreements from 2020-23. The counsel for the Apartment Owners submits that the said agreement is not entered with all the Apartment Owners. Be as it may, one of the copy of the maintenance agreement dated 12.12.2023 with one of the homebuyer has been brought on record by the YG Estates along with the convenience compilation.
Ld. Counsel for the YG Estates submits that in so far as the fact that maintenance has now been handed over YG Estates does not want reversal of the situation, let the maintenance be continued, with regard to maintenance no relief is now sought. However, there are various claims of the YG Estate against the individual homebuyers which required reconciliation and determination. Ld. Counsel for the Apartment owners submits that there has been advance payment to the YG Estates and infact certain dues are owed by the YG Estates to the homebuyers.
The present is the case where the YG Estates was nominated the Maintenance Agency by the Supertech, the corporate debtor on 15.09.2019 in the present case CIRP against the corporate debtor had commenced on 25.03.2022.
Under the Builder-Buyers Agreement between the allottees and the corporate debtor, the corporate debtor was to maintain the common area and other facilities of the towers through itself or by its nominee and the allottees were required to make certain payments with regard to maintenance to the corporate debtor or its nominee. The YG Estates also claim certain rights with regard to subsequent contract with the individual homebuyers. We are of the view that in the IA No. 706/2025 appellant has made payment of certain claims from with regard to service provided under the facilities management agreement. There are issues between the YG Estates and Apartment Owners with regard to liabilities of each other. We are of the view that in the present applications or appeal it is not for this Tribunal to enter into said issues and record any findings with regard to claims of each other. Both the parties are at liberty, YG Estates as well as the Association of the Homebuyers to bring into notice of the IRP the claims of each other and it is for the IRP to take a call, or appoint any auditor for considering the claims and it is for the IRP to take a call and take a decision and parties have to work out their remedies accordingly and such issues cannot be gone into and decided in this application.
Now coming to the submissions of the Ld. Counsel for the appellant that in so far as orders passed by this Tribunal as noted above on 19.09.2024 and 24.10.2024 may not be treated to prejudicial interest of the appellant. The above orders were passed while considering the applications filed by Apartment Owners and IRP, who was in charge of the CIRP by virtue of being appointed in the CIRP and was entitled to look into the all projects and take appropriate action. After considering the submissions of RP necessary directions were passed which handover having already taken place, we are of the view that in so far as the orders passed on 19.09.2024 and 21.10.2024 the said orders cannot be read as an order which may be treated to be against the interest of the YG Estates.
Ld. Counsel for the appellant has also by an application bearing no. 1169 of 2025 prayed for recall of aforesaid order passed by this Tribunal on 19.09.2024 and 21.10.2024. In view of the facts as stated above specially the submission of the counsel for the YG Estates that hand over have taken place on 13.10.2024 and they do not pray for reversal of the Maintenance Agency as on date we see no reason to recall of our order dated 19.09.2024 and 21.10.2024. We further make it clear that orders dated 19.09.2024 and 21.10.2024 have passed on the facts which was brought in the notice of the court and was passed in facts of the project in question and may have no bearing with regard to similar issues raised in other projects. Ld. Counsel appearing for the applicant in IA- 4306 of 2023 submits that there are certain prayers in the application with regard to Noida Authorities. He submits that the said applications be kept pending. In the facts of the present case we are of the view that interest of justice be served in giving liberty to the appellant to file a fresh application with regard to reliefs against the Noida. In view of the orders passed by the Tribunal noted above we permit the applicant to file fresh application with regard to other reliefs claimed in the application hence the application no. 4306/2023 is also disposed of. With the aforesaid order, all applications are disposed of.
In support of the recall application it is submitted that YG Estate was not the party to the application hence no direction could have been issued for YG Estates.
In view of the fact that we have already noticed that the YG Estate itself has submitted that it does not pray for reversal of the handover which was done on 13.10.2024 we see no reason to recall the order. All the applications are disposed of accordingly.