Samit Madhup Lal & Anr. vs Ankit Goel & Ors.

“This Appeal is preferred by a homebuyer whose grievance is that he has not been informed about the outcome of their claim.

2.

The background facts may be briefly stated:

(a)

The appellant claims that they were a joint allottee of flat No.1402 of a certain project promoted by M/s. D.K. Realty. He was also issued an allotment letter dated 09.07.2019. According to the appellants as per the payment schedule, they had paid the entire consideration. It may be stated that the first allottee is the husband of the second allottee.

(b)

Be that as it may, the Corporate Debtor (CD) did not honor its commitment which exposed it to a CIRP proceeding at the instance of the Association of the Homebuyers. It instituted CP 1170 of 2021. (It may be mentioned here that prior to the institution of CP 1170 of 2021, the appellant had issued a letter dated 07.08.2021 lending its consent to the Homebuyers’ Association to initiate a CIRP.)

c. Mr. Nitin Jain was appointed as the IRP. Subsequently, after the constitution of the COC, M/s. AAA Insolvency, an institutional RP was appointed as the RP.

d. While so, claims were invited by the IRP, and this Tribunal is informed that the last date stipulated for preferring the claim was 29.11.2022. According to the appellants, at the relevant time when claims were invited by the IRP, the first allottee (the first appellant herein) was badly sick and was in the ICU.

e. In these circumstances, on 31.12.2022, the second appellant sent an e-mail along with the letter of allotment and other relevant documents to Shri Anil Goel who was the authorized representative of the RP (AAA Insolvency). It may, however, be understood that on 31.12.2022, M/s. AAA Insolvency was not yet appointed as the RP by the COC but it was eventually appointed some 5 days later and Mr. Anil Goel did represent AAA Insolvency, and on 12.12.2022, the Adjudicating Authority too had approved the appointment of AAA Insolvency.

3.

According to the appellant, the RP had not taken a call on the communication made vide e-mail dated 31.12.2022. It might be that since the appellants have not made a proper claim in Form CA, the RP may not have considered it. However, there is a larger question: Was the RP or anyone who represented the RP under any disability not to know about the allotment of flat No.1402 to the appellants when the appellants had already communicated the allotment vide e-mail dated 31.12.2022 along with allotment letter and other associated documents? To this it may be added that if the appellants had authorized the Homebuyers’ Association vide communication dated 07.08.2021 to institute CP 1170 of 2021, could not the IRP or the RP as the case may be, have known about the allottees in the fray? Has IRP and the RP done their job meticulously. Secondly, can the COC (which at this point of time is the would be SRA) have ignored the appellants as an allottee in the project?

4.

Be that as it may, without including the appellants in the list of claimants, resolution plans were invited and the Homebuyers’ Association (the CIRP -petitioner itself) participated in the resolution process. Later siting as COC it approved its plan.

4.2

The RP would then move IA 36 of 2024 for the approval of the plan by the Adjudicating Authority. This was eventually withdrawn since the Adjudicating Authority appeared to have raised certain issues vis-à-vis the viability of the resolution plan offered by the Homebuyers’ Association. The matter was sent back to the COC and it was after certain improvements to the plan, it again approved its own plan, and it eventually came to be approved by the Adjudicating Authority vide its Order in I.A. 50 of 2024 dated 9^th December, 2024.

5.

It is now stated that when the COC approved the plan of the Homebuyers for the first time in its meeting dated 24.04.2024, the appellants chose to file a formal claim petition on that very date. There is some confusion as to whether resolution plan was approved on 24.04.2024 or on 26.04.2024. However, for the purpose of ongoing narration, it is not very pertinent. What is significant is that in Clause 9.6.3 of the resolution plan which finally came to be approved by the Adjudicating Authority, it is stated that all claims which have been rejected and also received after 24.04.2024 would not be considered, and that they would be treated as deferred allottee and they will be repaid only the consideration.

6.

The Counsel for the appellant would now contend:

(a)

At all points of time, RP had the opportunity to know that the appellants are allottees and even if a formal claim is not laid, he could have known the fact about allotment of Flat 1402 to the appellant, if only he had done his job meticulously.

(b)

At any rate, the e-mail dated 31.12.2022 should have alerted the RP to treat the appellant as an allottee. At least his name should have been included in the information memorandum which was prepared subsequently.

(c)

After the withdrawal of I.A. 36 of 2024 by the RP, he had moved the Adjudicating Authority with I.A. No.2605 of 2024 and I.A. No.2625 of 2024 for condonation of delay in receiving certain claims and to update the same. This Order on the same was passed on 03.06.2024 by which time the claim in the proper form had already been made.

(d)

It is not a case where a third party has become the successful resolution applicant to plea innocence for it is the very association of homebuyers whom the appellants have also authorized to institute the CIRP, became the SRA. Even if the RP has not done its job correctly, yet given the fact the SRA is the very CIRP – Petitioner it cannot plea ignorance. And he concluded till date, the status of the appellants has not been properly defined either by the RP or by the SRA or by the Adjudicating Authority.

7.

This Court pointedly posed a question to the Counsel for the CIRP petitioner - the SRA, as to whether it wants to plea ignorance about the allotment made to the appellants? Given the fact that SRA is the same CIRP petitioner, and given the fact that it has also received a letter of the appellants authorizing it to institute the very CIRP, is it appropriate on its part to treat the appellant as a deferred claimant?

8.

The learned Counsel for the SRA seeks time to obtain specific instruction in the matter.”