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Judgment
04.09.2024: These two Appeals have been filed by the Appellants claiming to be allottees challenging the order of the Adjudicating Authority (National Company Law Tribunal) Principal Bench dated 07.05.2024. Company Appeal (AT) (Ins.) No.1544 of 2024 has been filed challenging the order dated 07.05.2024 in IA No.1395 of 2022 whereas Company Appeal (AT)(Ins.) No.1569 of 2024 has been filed challenging the order of the same date in IA No.890 of 2022.
Brief facts of the case necessary to be noticed for deciding these Appeals are:-
2.1. The CIRP against the Corporate Debtor commenced on 17.10.2018. Publication was made by the IRP. Claims were received. Appellants before us did not file any claim. The Resolution Plan came to be approved by the CoC on 05.09.2019. Appellants’ case is that they filed their claim subsequent to approval of the Resolution Plan by the CoC but prior to the approval of the plan by the Adjudicating Authority. Adjudicating Authority approved the plan on 01.06.2021. Appellants filed appropriate application seeking a direction that they should be given the units which are claimed to be allotted to the Appellants. The prayers made in the IA No.1395 of 2022 are quoted for ready reference in paragraph 1:-
“"a. direct the Resolution Applicants/Respondents No. 1 & 2 to raise the demands as per the Allotment letter and grant possession of the Residential Units being IH 2-Plot-344 and IH 2-Plot-339 in the Ireo Hamlet 2 project and IH 4- Plot-B23 and IH 4-Plot-C127 in the Ireo Hamlet 4 project of the Resolution Applicant;
b. Direct the Respondents No.1 & 2 to enter into fresh Builder Buyer Agreement with the applicant herein as per the terms of the Approved Resolution Plan;
c. Direct the Respondents No.1 and 2 to implement the Resolution Plan in a time bound manner as specified in the approved Resolution Plan;
d. Direct Respondents No.1 &2 not to deviate from the objects, purpose and terms of the Approved Resolution Plan;
e. Direct initiation of proceedings against the Respondents Nos. 1 & 2 under Section 74(3) for non-implementation of the approved Resolution Plan as per its intent and purpose;
f. to execute and register a conveyance deed in favor of Applicants with respect to Residential Units being IH 2-Plot-344 and IH 2-Plot-339 in the Ireo Hamlet 2 project in village Sukhgarh and Samabalkhi and IH 4-Plot-B23 and IH 4-Plot-C127 in the Ireo Hamlet 4 project in village Dhol situated at, Sector-98, SAS Nagar, Mohali, Punjab-140306; and
g. pass such other further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of this case, in favor of the Applicants."
2.2. The application was opposed by the Resolution Professional. It was stated that the CoC has approved the plan on 05.09.2019 and thereafter the Resolution Plan was approved by the Adjudicating Authority and under clause 18.4, those claimants who have not filed the claim before the cut-off date were treated not to be extinguished for six months to enable the SRA to deal with the claim. It is submitted that the Appellants who filed the claims after cut-off date are entitled for payment as per clause 18.4. Adjudicating Authority dismissed the application after noticing the aforesaid submissions of the Resolution Professional. In paragraph 7 of the impugned order, the Adjudicating Authority made following observations:-
“7. In any event, there is a treatment for belated claimants in the Resolution Plan approved by the CoC and that is binding by all the parties.”
Counsel for the Appellants challenging the order contends that the Appellants having filed the claims before approval of the plan by the Adjudicating Authority, they are entitled to be allotted units. It is submitted that the Resolution Professional ought to have verified the claims and reflect their names in the Information Memorandum. Adjudicating Authority in the impugned order has observed that the Information Memorandum does not reflect the name of the Applicants. Appellant has filed the copy of the Resolution Plan which has now been ultimately approved by the Adjudicating Authority. In paragraph 18.4 (v) following has been provided:-
“v. It is clarified that any person claiming to be Allottee of the Corporate Debtor, who has not filed their claim with the Resolution Professional, or if filed, has not been verified by the Resolution Professional, or if verified, has not been informed to the Resolution Applicant shall not stand extinguished for a period of six months from the date of the approval of the Plan by NCLT and for this period they shall be dealt at the sole discretion of the Resolution Applicant according to the merits of the case, and by way of proper verification of the documents held by the Allottees. Upon determination of the genuineness of such a claim, the same shall be restructured in the same manner as all similar claims already collated and admitted are being treated under this Plan, subject to whether the same is considered a simple Allottee, a Decree Holder for Refund or a Decree Holder for Compensation.”
When we look into the aforesaid clause, it is clear that those claims which were filed after the cut-off date (which includes the claims filed by the Appellants) were kept alive for period of six months even after approval of the plan by the Adjudicating Authority and they were to be dealt with by SRA. Admittedly, after the approval of the plan, SRA called for the claims from the Applicants who have again submitted their claims which according to the Appellant has not been verified.
From the order of the Adjudicating Authority, it is clear that the claims were filed by the Appellants after the cut-off date. We, thus, have no doubt that SRA has to take care of the claims as per Clause 18.4 (v) of the Resolution Plan and whatever amount is entitled to the Appellant to be paid as per Clause 18.4(v) shall be considered and paid by the SRA because the Resolution Plan binds all concerned including the SRA, Appellants and all stakeholders.
In view of the aforesaid, we do not find any error in the order of the Adjudicating Authority rejecting the application. However, as noticed above, the Adjudicating Authority itself has observed that the claims have to be dealt with in accordance with Clause 18.4 (v) of the Resolution Plan as noted above.
With the above observations, both the Appeals are disposed of.