Ashwani Kumar Kaura vs Devendra Umrao Resolution ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Insolvency) No.1039 of 2023 (Arising out of Order dated 16.06.2023 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi, Court-III, in IA No.1531/2023 in IB-85(ND)/2021)

IN THE MATTER OF: Ashwani Kumar Kaura, Tower No.4, Apartment No.802, Sector 115, Sante Majra, PO Landran, Mohali, Kharar Landran Road, Near Chappar Chiri, District SAS Nagar (Mohali), Punjab-140307. ... Appellant

Versus

Devendra Umarao, Resolution Professional of Ansal Lotus Melange Projects Pvt. Ltd., House No.B-43A, First Floor, Kalkaji, New Delhi 110019. ... Respondents

Present: For Appellant: Harsh Gurbani, Advocate.

For Respondents: Advocate Abhishek Parmar, for R-1 Advocate Ashish Aggarwal, Advocate Nalin Dhingra, for R-2 Mr. Gaurav Mitra, Advocate

JUDGMENT

ASHOK BHUSHAN, J.

This Appeal has been filed challenging the order dated 16.06.2023

passed by National Company Law Tribunal, New Delhi, Court-III in IA

No.1531 of 2023, which was filed by the Appellant seeking a direction to

admit the claim of the Appellant, which Application was rejected by the

Adjudicating Authority.

Company Appeal (AT) (Insolvency) No.1039 of 2023 1

2. Brief facts necessary for deciding this Appeal are:

(i) The Corporate Debtor - M/s Ansal Lotus Melange Pvt. Ltd.

allotted two Units to the Appellant vide two allotment letter dated 16.12.2009 in respect of Unit CB-05 and CB-06 in commercial-cum-office complex in City Centre, situated in Mohali. Payment of Rs.1.25 Crores for each Unit was made to the Corporate Debtor. The Appellant wrote letter dated 27.06.2013 asking the CD to deliver the possession or refund the amount with simple interest @ 2.25% per month.

(ii) On 09.08.2023, the Corporate Debtor asked to make

additional payment of Rs.4,42,007/- in respect of two

commercial site CB-05 and CB-06. The payment of

Rs.4,42,007/- was made by the Appellant for each of the two

commercial spaces.

(iii) On 24.09.2014, two letters addressed by the CD to the Appellant for taking possession of the commercial space, which letters were signed by the Appellant as owner under protest.

(iv) The Appellant filed Civil Suit in the year 2016 seeking refund of the entire amount being CS-43 of 2016.

(v) Partial Competition Certificate was issued on 14.10.2016.

(vi) On 07.04.2021, insolvency commenced against the Corporate Debtor and Respondent was appointed as Interim Resolution Professional and later confirmed as Resolution Professional ("RP"). The Appellant submitted is claim in Form-CA for two Units. The RP on 27.05.2021 informed the Appellant and he was required to submit claim in Form-F on the ground that the

Company Appeal (AT) (Insolvency) No.1039 of 2023 2 CD has provided possession of respective Units to the Appellant. The Appellant has submitted his claim in Form-F on 28.10.2021. The claim of the Appellant was not admitted.

(vii) The Appellant filed IA No.1531 of 2023 seeking direction against the RP to accept the claim of the Appellant. The Adjudicating Authority vide order dated 16.06.2023 dismissed the Application. Aggrieved by which order this Appeal has been filed.

3. Learned Counsel for the Appellant challenging the impugned order

submits that the Appellant's entire claim was required to be admitted as

Financial Creditor. Further on advise of the RP, the Appellant has also

filed his claim in Form-F, which too was not admitted. There was no

occasion to handover the possession to the Appellant on 24.09.2014, since

no Occupancy Certificate was issued and Partial Occupancy Certificate was

issued only on 18.03.2015. The RP committed error in not admitting the

claim.

4. The learned Counsel for the RP refuting the submission of the

learned Counsel for the Appellant submits that the Appellant having

handed over the possession on 24.09.2014, which letter handing over

possession has also been signed by the Appellant on 24.09.2014, there was

no occasion to accept and admit any claim of the Appellant. It is submitted

that the Appellant claim was rightly not admitted by the RP. The Appellant

continued to be in possession of the commercial spaces and enjoying

possession since 24.09.2014. Hence, the claim could not have been

accepted.

Company Appeal (AT) (Insolvency) No.1039 of 2023 3

5. The learned Counsel for SRA also refuted the submissions of learned

Counsel for the Appellant and submits that the Appellant being handed

over the possession of the Unit, his claim was rightly not admitted. It is

submitted that the Appellant has also field a Civil Suit No.43 of 2016, where

the Corporate Debtor was impleaded as Defendant No.2. It is further

submitted that SRA undertakes to execute the Conveyance Deed of Unit

CB-05 and CB-06 in favour of the Appellant. It is further submitted that

Resolution Plan of the Corporate Debtor has already been approved by the

Adjudicating Authority on 20.11.2023.

6. We have considered the submissions of learned Counsel for the

parties and have perused the records.

7. From the facts brought on record, it is clear that Unit CB-05 and CB-

06 were allotted to the Appellant by the Corporate Debtor. The possession

of the Units were offered by the Corporate Debtor by letter dated

24.09.2014. Copy of the letter has been filed by the Appellant himself at

page-86, which is as follows:

"Ansal Lotus Melange Projects Pvt. Ltd. 1202, Antarisksh Bhawan, 22, K.G. Marg, New Delhi 110001 Tel: 011-66090221/66302875/43564436, Fax: 23322009/ 66303538 SCO 184, Sec 9C, Chandigarh. Tel:0172-5046532/5035035

Dated : 24-09-2014

To,

The Manager, Ansal Lotus Melange Projects Pvt. Ltd.

Subject: Handing Over of Commercial Building No.: CB 05 in Project City Centre Sector 115, Mohali.

Company Appeal (AT) (Insolvency) No.1039 of 2023 4 Dear Sir,

You are hereby authorized to hand over the physical possession of under mentioned Commercial Building No.: CB 05 to Mr. Ashwani Kumar Kaura R/o Apartment no. T4-802 Orchard County Sector 115 Mohali or his/her/their authorized representative in project City Centre at Sector 115, Mohali

With an admeasuring Area of 6486 sq. ft.

Handing over/taking over certificates will be signed by the owner or his/her/their authorized representative and distributed as under:

a) Owner

b) GM (Projects) - Ansal Lotus Melange Projects Pvt. Ltd.

c) Estate Manager (SFML)

d) Accounts Copy - Ansal Lotus Melange Projects Pvt. Ltd.

e) Office Copy - Ansal Lotus Melange Projects Pvt. Ltd.

Please ensure that the interest free Security Deposit dues to the Star Facilities Management Limited plus any outstanding amounts towards Ansal Lotus Melange Projects Pvt. Ltd. is collected by you before handing over possession.

Thanking you,

8. Perusal of above letter indicates that the possession letter has been

accepted by the Appellant, although under protest. The learned Counsel

for the Appellant has submitted that possession could not have been

handed over since there was no Occupancy Certificate. The Appellant has

Company Appeal (AT) (Insolvency) No.1039 of 2023 5 also brought on the record Partial Completion Certificate dated 18.03.2015,

along with Appeal, which indicates that Partial Completion Certificate of

commercial complex was issued.

9. The Appellant initially filed claim as Financial Creditor, which was

not accepted and RP informed him that he cannot be accepted as Financial

Creditor. Thereafter, the Appellant filed his claim in Form-F. The RP has

filed its reply. In the reply it is stated that possession of the Unit having

already been handed over on 24.09.2014, there is no occasion of

acceptance of the claim of the Appellant. The RP has also referred to and

relied on order dated 12.10.2022 passed by Civil Judge, SAS Nagar, Mohali

in a suit filed by the Appellant against Monga Realtors Pvt. Ltd. & Anr., a

broker, through whom the Appellant booked the Units as well as the

Corporate Debtor. The Application filed by the Corporate Debtor to stay

the proceedings of suit in view of the moratorium imposed with effect from

07.04.2021, was allowed and proceedings in suit was stayed. However, the

Appellant's suit against the Agent, through whom the Units were booked

was allowed to proceed. The possession letter dated 24.09.2014, which

has been extracted above, clearly indicate that possession letter was

accepted by the Appellant, though under protest. The possession of Unit

was thus, handed over to the Appellant on 24.09.2014, thus, the RP did

not commit any error in not accepting the claim of the Appellant, for the

possession of the Units, which have already been handed over. We, thus,

do not find any error in the impugned order passed by the Adjudicating

Authority in rejecting IA No.1531 of 2023 filed by the Appellant seeking

Company Appeal (AT) (Insolvency) No.1039 of 2023 6 direction to accept the claim. However, as undertaken by the SRA, the

Resolution Plan having been approved on 20.11.2023, the SRA now has

undertaken to execute of the Conveyance Deed for both the Units.

10. In result, the Appeal is disposed of in following manner:

(I) The order impugned dated 16.06.2023, rejecting IA No.1531 of

2023 is upheld.

(II) The SRA namely - Singla Builders and Promoters Limited shall

execute the Conveyance Deed in favour of the Appellant for

Units CB-5 and CB-6.

Parties shall bear their own costs.

[Justice Ashok Bhushan] Chairperson

[Justice Yogesh Khanna] Member (Judicial)

[Barun Mitra] Member (Technical)

NEW DELHI

22nd March, 2024

Ashwani

Company Appeal (AT) (Insolvency) No.1039 of 2023 7