Akriti Agnihotri & Anr vs Blackberry Realcon Pvt. Ltd
- CitationCompany Appeal (AT) (Insolvency) No. 419 of 2020
Ratio decidendi
The rule this decision rests on
Where an allottee's application under Section 7 of the Insolvency and Bankruptcy Code is pending before the Adjudicating Authority, the question whether the applicant filed as an independent Financial Creditor under Section 5(7) and (8) on the strength of a refund agreement, or instead as an allottee, is a threshold question that the Adjudicating Authority must determine before and independently of any stay pending the Supreme Court's decision on the homebuyers' challenge to the ordinance. If the applicant has not claimed allotment of flats or shops but has sought initiation of insolvency proceedings as a Financial Creditor, the Adjudicating Authority must decide that status question without awaiting the Supreme Court's decision, and the status quo order passed by the Supreme Court in respect of allottees does not extend to such an applicant. If the Adjudicating Authority finds the application was filed by the applicant as an allottee, it must await the Supreme Court's decision before proceeding further.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI Company Appeal (AT) (Insolvency) No. 419 of 2020 In the matter of: Akriti Agnihotri & Anr. ....Appellants
Vs.
Blackberry Realcon Pvt. Ltd. ....Respondent
Present: Appellants: Mr. Piyush Singh, Mr. Aditya Parolia, Mr. Akshay Srivastava and Ms. Aditi Sinha, Advocates. Respondent: ORDER
13.03.2020: The Appellants were the Original Allottees who initially moved
application under Section 7 of the I&B Code against 'M/s Blackberry Realcon
Pvt. Ltd.' (Corporate Debtor) a Real Estate Company. The matter is pending. The
Adjudicating Authority (National Company Law Tribunal), New Delhi Court V by
impugned order dated 27th January, 2020 adjourned the matter for 5th March in
view of pendency of the case before the Hon'ble Supreme Court in WP (Civil) -
26/2020.
2. Learned counsel for the Appellant submits that the Writ Petition (Civil) No.
26/2020 has been filed by the Homebuyers challenging the ordinance dated 28th
December, 2019.
3. In the present case the question to be decided is to whether the Appellants
filed their claim independently as Financial Creditors as defined under Section
5(7) & (8) of the I&B Code pursuant to the agreement of refund or as the allottees.
If, they have claimed to be Financial Creditors independently relying on
agreement of refund, in such case, one may argue that the order of status quo -2-
passed by the Hon'ble Supreme Court with regard to allottees who have moved
application under Section 7 will not be applicable to the present case. However,
since such issue is required to be determined, therefore, we remit the matter to
the Adjudicating Authority (National Company Law Tribunal), New Delhi Court
V to decide the issue as to whether Appellants filed application as an
independent "Financial Creditor" as defined under Section 5(7) & (8) of the I&B
Code or as "allottees". If they have not claimed for allotment of flats or shops
but prayed for initiation of insolvency proceeding as Financial Creditors, the
Adjudicating Authority will decide the said issue without awaiting the decision
of the Hon'ble Supreme Court. If it is decided that the application has been filed
by the Appellants as allottees, in such case the Adjudicating Authority will await
for the decision of the Hon'ble Supreme Court. The appeal stands disposed of
with aforesaid observations. No costs.
[Justice S. J. Mukhopadhaya] Chairperson
[Justice Bansi Lal Bhat] Member (Judicial)
[Alok Srivastava] Member (Technical) am/gc
Company Appeal (AT) (Insolvency) No. 419 of 2020
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