Arun Kapoor Resolution Professional Of ... vs Dr. Shankar W. Sawant & Anr

IN THE MATTER OF: Arun Kapoor ....Appellant Resolution Professional of Monarch Brookefields LLP

Vs.

Shankar W Sawant & Anr. ....Respondents

With

Company Appeal (AT) (Ins.) No. 594 of 2023 & I.A. No. 1973 of 2023

IN THE MATTER OF: Arun Kapoor ....Appellant Resolution Professional of Monarch Brookefields LLP

Vs.

Sikandar Mulla ....Respondent A homebuyer of Monarch Brookefields LLP

Present: For Appellant: Mr. Amir Arsiwala, Advocate For Respondent:

ORDER

01.08.2023:

Company Appeal (AT) (Ins.) No. 547 of 2023:- This appeal has been filed

against the order dated 03.03.2023 by which order Adjudicating Authority has

allowed the Company Appeal No. 9 of 2022 directing the Resolution

Professional 'Monarch Brookefields LLP' under Liquidation to accept and admit

the claim of the applicants.

2. Resolution Professional aggrieved by the said order has come up in this

appeal. Learned Counsel for the Resolution Professional submits that plan has

Cont'd.../ -2-

already been approved by the CoC and under consideration before the

Adjudicating Authority.

3. At this stage acceptance of the claim of the respondent could not be

justified. It is further submitted that respondents have made payment of only

Rs. 11,50,000/- by direction has been issued to accept the claim of

Rs. 35,12,000/-.

4. We have considered submissions of the appellant and perused the records.

5. In Paragraph 2 of the order Adjudicating Authority has held:

"The Applicants submit that they decided to purchase a Flat in a new project being developed by the Corporate Debtor to be constructed at Kalamboli in Navi Mumbai. On payment of a token amount of Rs. 1,00,000/- (Rupees One Lakh Only), the Corporate Debtor issued an Allotment Letter vide which Flat No. 402, "Florida"

Building (hereinafter referred to as "said Flat" for the sake of brevity) was allotted to the Applicants. Subsequently, the Applicants made a series of payments to the Corporate Debtor on demand and the same is tabulated hereinbelow:

S.No. Date Bank Cheque No. Account Holder Amount (in Rs.)

1. 23/01/2011 MMC 033374 Shankar Sawant 1,00,000/-

2. 12/11/2013 Axis 0077792 Shankar Sawant 3,00,000/-

3. 28/11/2011 MMC 036160 Shankar Sawant 2,00,000/-

4. 28/11/2011 Axis 052181 Shankar Sawant 4,00,000/-

5. 28/11/2011 ICICI 134963 Sandhya Sawant 8,00,000/-

6. 09/12/2011 ICICI 134964 Sandhya Sawant 4,00,000/-

7. 09/12/2011 ICICI 134965 Sandhya Sawant 4,00,000/-

8. 09/12/2011 ICICI 134966 Sandhya Sawant 4,62,000/-

9. 25/08/2015 Axis 324517 Shankar Sawant 2,00,000/-

10. 25/08/2015 Axis 324518 Shankar Sawant 2,20,000/-

11. 25/08/2015 Axis 324519 Shankar Sawant 30,000/-

TOTAL (Rupees Thirty-Five Lakhs Twelve 35,12,000/- Thousand Only)

Copies of Financial Statements evidencing the abovementioned transactions have been duly annexed to this Application.

Company Appeal (AT) (Ins.) No. 547, 594 of 2023 -3-

6. Paragraph 2 give details of all bank transactions and finding has been

recorded that financial statements evidencing the above mentioned

transactions have been duly annexed by this application.

7. We have no reason to doubt the aforesaid finding recorded by the

Adjudicating Authority.

8. In so far as, the submission of the appellant that plan is under

consideration before the Adjudicating Authority, it is open for the Resolution

Professional to take appropriate steps to bring into notice of the

CoC/Adjudicating Authority about the order passed by Adjudicating Authority

which is impugned in the appeal.

9. We do not find any error in the order impugned. Appeal is dismissed.

Company Appeal (AT) (Ins.) No. 594 of 2023:- Heard Learned Counsel for the

Appellant. This appeal has been filed against the order dated 17.03.2023

passed by the Adjudicating Authority allowing the I.A. No. 313 of 2022. I.A No.

313 of 2022 has been filed by the respondent an allottee of the Corporate

Debtor. In the application respondent was allotted Flat No. 402 by the

Corporate Debtor. There are certain issues regarding the payments. It appears

that certain payments were made by the allottees to ex-directors which were

not reflected in the records of the Corporate Debtor.

2. Adjudicating Authority after hearing the parties, however, returned a

findings that the amount of Rs. 40 lakhs which is claimed by RTGS by the

allottees was given to another group company, hence, that amount was not

acceptable. However, other three payments of Rs. 9,36,000/-, Rs. 11,48,000/- Company Appeal (AT) (Ins.) No. 547, 594 of 2023 -4-

and Rs. 2,40,760/- have been accepted. In paragraph 8 of the Judgment

following findings have been recorded by Adjudicating Authority.

"Notwithstanding the above, the transfer of the amount of Rs. 40 Lakhs from Monarch Realty to the account of the Corporate Debtor cannot be countenanced. At this point, it is pertinent to note the summary of the payments made by the Applicant as follows:

Date Amount Mode of payment Payee name 7th July 2014 40,00,000/- Bank of India (RTGS) Monarch Realty Management Services (Group Company) 17th July 2014 9,36,000/- Cash Corporate Debtor 25th May 2016 11,48,000/- Bank of India (Pay Corporate Debtor Slip) 25th May 2016 2,40,760/- Kotak Bank (Cheque) Corporate Debtor

The transactions pertaining to the three transfers made in favour of the Corporate Debtor dated 17th July 2014 and 25th May 2016 are evidenced by the receipts and Financial Statements attached to the Application and therefore, it is established that the corresponding amounts were indeed transferred by the Applicant to the Corporate Debtor's account. Hence, we are of the view that the Respondent's decision to reject the entire claim of the Applicant was erroneous. Though the transfer of Rs. 40 Lakhs to the Corporate Debtor cannot be proved, the transfer of the remaining amounts aggregating to Rs. 23,24,760/- (Twenty-Three Lakhs Twenty-Four Thousand Seven Hundred and sixty only) via the abovementioned modes of payments ought to be considered by the Respondent while examining the claim of the Applicant."

3. The Resolution Professional has filed the appeal challenging the said

order. Learned Counsel for the appellant submits that it is well settled that

disbursement of the amount is pre-condition. He relied on Judgment of Hon'ble

Supreme Court in New Okhla Industrial Development Authority Vs. Anand

Sonbhadra (2023) 1 Supreme Court Cases 724.

Company Appeal (AT) (Ins.) No. 547, 594 of 2023 -5-

4. There can be no dispute to the preposition that disbursement is a pre-

condition for allotment.

5. Learned Counsel for the appellant has referred to the application filed by

the respondent where they have claimed that certain payments were made

which was not reflected in the records of the Corporate Debtor but that was

misappropriated by ex-director. Be as it may, when the specific findings have

been recorded by the Adjudicating Authority regarding three payments in

paragraph 8, we see that the said averments made in the application does not

help the appellant in any manner.

6. Present is the case where learned counsel for the appellant himself has

submitted that agreement to sell has been executed in favour of Respondent

No. 1 with regard to premises in question. In so far as the three payments

which were accepted by Adjudicating Authority, the findings have been

recorded by Adjudicating Authority that the corresponding amount were indeed

transferred by the applicant to the corporate debtor's account, we see no

reason to doubt the aforesaid finding, contention raised by the respondent were

considered and findings have been returned. We do not find any merit in the

appeal, appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

sa/nn Company Appeal (AT) (Ins.) No. 547, 594 of 2023