Amit Rajpal And Anr vs Shree Ahuja Properties Private Limited

Amit Rajpal and Anr. ...Appellants

Versus

Ahuja Properties & Realtors Pvt. Ltd. ...Respondent

Present: For Appellants: Mr. Shikhil Suri and Ms. Mahima Aggarwal, Advocates. For Respondent:

ORDER

17.11.2022: Heard learned counsel for the Appellants. This Appeal has

been filed against order dated 30.08.2022 by which the application filed by the

Appellants under Section 7 has been rejected. Appellants' case is that

Appellants has purchased a flat from the Respondent Developer and has made

the entire payment towards the flat. He submits that Appellants has also

made payment to the Corporate Debtor of Rs.1,09,22,500/- towards the

Corpus Fund which fund has not been transferred by the Corporate Debtor to

the Housing Society which has been formed by the flat buyers. The application

was filed by the Appellants for recovery of the said amount from the Corporate

Debtor which, according to the Appellants, have already been paid to the

Corporate Debtor as Corpus Fund. The Adjudicating Authority has rejected

the application on the ground that Appellant is an allottee and does not fulfils

the threshold prescribed under Section 7 proviso.

Cont'd.../ -2-

2. Learned counsel for the Appellants submits that present is not a case

for fulfilling the threshold as Appellant is no more an allottee after purchase

of the flat which fact has not been looked into by the Adjudicating Authority.

3. When we look into the facts of the present case, we see that the

proceedings under Section 7 have been initiated for recovery of an amount of

Rs.1,09,22,500/- which according to the Appellants has been paid by him to

the Corporate Debtor as Corpus Fund. The insolvency resolution process

under IBC are not proceedings for recovery of any amount. Especially, in the

facts of the present case when the application under Section 7 has been filed

for recovery of amount towards the Corpus Fund which is claimed to have

been paid by the Appellants to the Corporate Debtor which fund has not been

transferred to the Housing Society of the flat buyers, we are of the view that

insolvency proceedings cannot be initiated at the instance of the Appellants.

We with these reasons are not inclined to entertain this Appeal. Appeal is

dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

[Barun Mitra] Member (Technical)

Archana/nn Company Appeal (AT) (Insolvency) No. 1358 of 2022