Anand Murti vs M/S Soni Infratech Private Limited

Company Appeal (AT) (Ins.) No. 1507 of 2019 & I.A. No. 183, 184, 205, 300, 330, 366, 560, 738, 739, 756, 1115 of 2020 & 2003 of 2021 & 3479, 3451 of 2022

IN THE MATTER OF: Anand Murti ...Appellant

Versus

Soni Infratech Pvt. Ltd. & Anr. ...Respondents

Present: For Appellant: Mr. Ajit Kumar Sinha, Sr. Adv. with Mr. Mani Bhushan Sinha, Mr. Naveen Soni, Advocates For Respondent: Mr. Amit Goel, Adv. for IRP with IRP Mr. B.S. Goyal. Mr. Virender Ganda, Sr. Advocate, Ms. Akanksha Mathur, Ms. Tanya Hasija, Mr. Paresh Virmani, Advocates.

ORDER

Per: Justice Rakesh Kumar Jain: (Oral)

31.01.2023: This order shall dispose of I.A. No. 3479 of 2022 filed in

CA (AT) (Ins) No. 1507 of 2019 in which the Applicant, who is the land owner

and promoter of the Corporate Debtor, has made the following prayers:-"(i)

Allow this Application; and (ii) Direct the home buyers to comply with the

consensus arrived and recorded in Para Number 3(i) of minutes of the meeting

dated 23.10.2021 in respect to this project not to escalate any of the

pending/grievances before the appropriate forum against the existing

promoter/Resolution Applicant and CD during the construction period for

smooth and timely completion of the project; and (iii) To pass an appropriate

direction to MCA to delete the word Under CIRP from the online status of the

CD reflecting in the website of the MCA in the light of the Hon'ble Apex Court Judgment; and (iv) Allow the Promoter/Applicant to sign the documents of

settlement and NOC of M/s Edelweiss on behalf of the CD; and (v) Allow the

promoter/Applicant to sign the Terms Sheet in respect to the Swamih Funds

to raise the funds to complete the project; and (vi) Pass any order/orders as

this Hon'ble Appellate Tribunal deems fit and proper in the facts and

circumstances of the instant case."

2. Besides the aforesaid prayers made in writing, the Applicant has also

made an oral prayer before us that though a particular time was granted by

the Hon'ble Supreme Court to complete the project, namely, Orion Galaxy,

Sector 68, Gurugram, Haryana, spread over in three phases, within a period

of 6 months, 12 months and 15 months with +/ - three months, but because

of loss of time on account of ban imposed by the National Green Tribunal on

construction from time to time as well as due to the orders of the government,

37 working days were lost which may be compensated with further provision

of a period of three months.

3. In brief, Balram Singh (Financial Creditor) filed an application under

Section 7 of the Code against M/s Soni Infratech Pvt. Ltd. (Corporate Debtor).

The said application was admitted by the Adjudicating Authority on

22.11.2019.

4. The order of admission was challenged by one suspended director,

namely, Anand Murti by way of an appeal i.e. CA (AT) (Ins) No. 1507 of 2019.

In the said appeal, notice was issued on 19.12.2019 and an interim order was

passed directing the IRP not to constitute the CoC.

5. However, the order dated 19.12.2019 was modified vide order dated

26.02.2020 for the purpose of constitution of CoC and the CoC was constituted on 04.03.2020. The said order was challenged by the Appellant

by way of an appeal i.e. Civil Appeal No. 1928 of 2020 before the Hon'ble Apex

Court. However, the said appeal was disposed of with liberty to the Appellant

to file an appropriate application for seeking modification of the order dated

26.02.2020.

6. In view thereof, the Appellant filed I.A. No. 1115 of 2020 for seeking

modification of the order dated 26.02.2020. The said application was

dismissed on 22.11.2021.

7. Aggrieved against the order dated 22.11.2021, a Civil Appeal No. 7534

of 2021 was filed by the Appellant before the Hon'ble Apex Court. The said

appeal was allowed on 27.04.2022 with the following directions: -

"A. The appeal is allowed. The impugned order dated 22.11.2021 passed by the NCLAT, Principal Bench, New Delhi in I.A. No. 1115 of 2020 in CA (AT) (Ins) No. 1507 of 2019 is quashed and set aside; B. The Affidavit dated 27.12.2021 filed by Shri Kashi Nath Shukla, the promoter of the Respondent No. 1-CD is taken on record and treated to be an undertaking given to this Court;

C. The Appellant/Promoter is permitted to complete the project as per the deliberations that took place in the minutes of the meeting dated 23.10.2021 and in accordance with the affidavit-cum- undertaking dated 27.12.2021 of the promoter, Shri Kashi Nath Shukla;

D. The modification application being I.A. No. 1115 of 2020 in CA (AT) (Ins) No. 1507 of 2019 before the NCLAT accordingly stands allowed.

E. From the date of this order, the IRP shall submit quarterly reports to the NCLAT, Principal Bench, New Delhi with regard to the progress of the housing project;

F. The matter be listed before the NCLAT, Principal Bench, New Delhi for such first status report on 22.08.2022."

8. Thereafter, in pursuance of the directions contained in Para 24(E) of the

order of the Hon'ble Supreme Court dated 27.04.2022, the IRP have been

submitting its quarterly reports. It is also pertinent to mention that vide our

order dated 09.11.2022, the Appellant has also filed an affidavit of the

promoter detailing the work which has been done up to date. The Appellant

has filed the report(s) and the last report is dated 27.01.2023.

9. Be that as it may, Sr. Counsel for the Applicant has pressed his prayer

for extension of period of three months beyond the period given by the Hon'ble

Supreme Court in the order dated 27.04.2022. We may clarify that the

Applicant/Appellant had submitted an affidavit-cum-undertaking dated

27.12.2021 before the Hon'ble Supreme Court which has been reproduced in

the order dated 27.04.2022 and in Para 13 of the said affidavit it has been

stated by the Applicant that:-

"13. That I say that it will complete the stage wise construction within 6 months to 15 months (+/- 3 months) in phased manner from the date of order.

Particulars Tower Time in Months (+/- 3 Months) Stage -I T8-T12 Within 6-9 Months Stage- II T1-T4 Within 12 Months Stage- III T5-T7 Within 15 Months

10. According to the time line given to the Supreme Court by the Appellant

in the aforesaid paragraph, the Stage - I was pertaining to T8-T12 to be

completed within a period of 6 to 9 months, which means completion was to be done in 6 months with three months extra. As per our calculation, since

the order of the Hon'ble Supreme Court was passed on 27.04.2022, the period

of 6 months had expired on 27.10.2022 and the additional period of three

months has also expired on 27.01.2023 or at the most by the end of January,

2023. In so far as Stage-II, pertaining to T1 to T4 is concerned, the period of

12 months counted from 27.04.2022 shall expire on 27.04.2023 and with the

grace period of three months shall expire on 27.07.2023. Stage-III, pertaining

to T5 to T7 is to be completed within a period of 15 months from 27.04.2022

which shall expire in July, 2023 and with the grace period of three months, it

shall expire in October, 2023.

11. Besides the oral prayers, the Applicant has prayed that he may be

allowed to enter into an agreement with the financer, namely, Swamih

Investment Fund-I in order to raise a fund of about of Rs. 150 Crores in two

phases for the purpose of completion of the project. He has also prayed that

unsold inventory (12 flats) and vacant area may be permitted to be sold for

the purpose of raising funds and has prayed that a direction may be issued

to MCA to delete the word "Under CIRP" from the online status of the CD

reflecting in the website of the MCA as it is detrimental to its interest in getting

some good investor for the purpose of completion of the project in hand and

that he may be allowed to sign the documents pertaining to raising of funds.

12. Although, Sr. Counsel for the Applicant/Appellant has argued with

vehemence that all the prayers made in the application are genuine in nature

and deserves to be granted but after taking into consideration the fact that

the order of the Hon'ble Apex Court dated 27.04.2022 is based upon the

undertaking given by the Appellant/Applicant before the Hon'ble Apex Court by way of an affidavit in which the time line has been provided, we are of the

considered opinion that it would be just and expedient if the Applicant/

Appellant files an appropriate application before the Hon'ble Apex Court in

this regard for the purpose of seeking the prayers made in this Application

because in no case this Court can dilute the order of the Hon'ble Supreme

Court by which directions have been issued particularly in regard to a time

line provided to the Appellant for completing the construction.

13. With these observations, the present application is hereby disposed of

as not maintainable before us but liberty is granted to the

Appellant/Applicant to avail its remedy, in accordance with law, before the

Hon'ble Apex Court, if so advised.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

Sheetal/RR