Goutam Kumar Sahoo vs Rajkumar Dey & Ors

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI COMPANY APPEAL (AT)(INS) NO.893/2023 (Arising out of judgement and order dated 6TH July, 2023 passed by the National Company Law Tribunal, Kolkata Bench in Company Petition (IB) No.324/KB/2022) In the matter of: Goutam Kumar Sahoo Appellant Vs Rajkumar Dey/Asha Dey & Ors Respondent For appellant: Appeared but not marked appearance. For Respondent: Mr. Abhishek Gupta and Mr. Soumaya Dutta, Advocates for R1 to 22. Mr. Kaushik Chatterjee, Advocate for RP. Mr. Arun Kumar Gupta in person. Mr. Kaushik Chatterjee and Ms Samridhi, Advocates for IRP/RP/R-23. JUDGEMENT

JUSTICE YOGESH KHANNA, MEMBER (JUDICIAL) This appeal is filed against an order dated 6th July, 2023 passed by the

National Company Law Tribunal, Kolkata in Company Petition being CP(IB)

No.324/KB/2022 wherein the petition under Section 7 of the IBC, filed by

Home Buyers was admitted.

2. The company petition was filed under Section 7 of the Code on 18th

November, 2022 before the National Company Law Tribunal, Kolkata Bench.

The total amount claim in default was Rs.3,80,34,952.90 (Rupees Three crore

eighty lakh thirty four thousand nine hundred and fifty two and ninety paise

only) (Principal amount of Rs.3,42,50,611/- together with interest and other

charges calculated at the rate of 8% p.a.).

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3. It was the submission of the learned counsel for the appellant that no

proper notice of the petition was served upon the appellant by the Ld. NCLT

and hence it had severally prejudiced the case of the appellant and an

admission of petition under Section 7 of the Code, without any opportunity to

them of being heard is violative of principle of natural justice.

4. We have heard the arguments and perused the record. Admittedly the

appeal was filed on the premises that no notice were ever served upon the

appellant herein. We have perused an additional affidavit dated 06.09.2023

filed by the Respondent, which reveals the summons were sent twice by the

Ld. NCLT at the registered office of the appellant. Those summons (copies)

are annexed. One of the summons is of 29.12.2022 for dated 15.02.2023 and

second is of 2.03.2023 for dated 12.04.2023. As per tracking report(s) both

these summons were served upon the appellant at the registered office of the

appellant. The appellant was also sent three emails at the email Id of the

appellant as mentioned in the master data, procured on 18.02.2023 from

MCA website. The learned counsel for the appellant herein contends in the

year 2022 and till March, 2023 their email ID was different. There may be

numerous email IDs of the company but suffice to say once an email Id of the

appellant is on the master data of the MCA website and once the summons

are sent on such email ID and also sent physically at the Registered office of

the company, such service would be treated as sufficient as has been rightly

noted so by the Ld. NCLT.

5. At this stage the learned counsel for the appellant argued as per the

contract between the parties, the Corporate Debtor was to make the flats 3

ready for financial creditors/home buyers within 24 months from the date of

the execution of agreement for sale and was obliged to hand over its physical

possession upon making payment of the sale consideration to the corporate

debtor. It was argued the said period of 24 months lapsed in the year 2020,

i.e. the period as is prescribed under Section 10A of the Code, hence if the

default occurs within the said period, no petition under Section 7 would be

maintainable. We are not inclined to accept this argument as in the said

agreement(s) for sale there also exist a clause wherein the corporate debtor

was liable to pay interest @ 8% p.a. to the financial creditors if any default

occurs in delivery of possession of flats by the corporate debtor within 40

months from the date of execution of the respective agreement for sale.

6. The effect of both these above clauses would be if the flats were not

complete within 24 months, then the flat buyers would have to wait for 40

months from the date of execution of respective agreement(s) for sale, but for

the period between 24 months - 40 months, they shall be entitled to interest

@ 8% on the amount payable to them by corporate debtor. It was only after

expiry of 40 months, the home buyers were at liberty to take legal action.

Admittedly the said period of 40 months did not fall within the period

prescribed under Section 10 A of the Code, hence it cannot be said that the

proceedings are vexatious.

7. Even otherwise vide order dated 18.07.2023 a liberty was given to run

corporate debtor as a going concern with the assistance of its ex Management,

its officers and employees as there was submission made on behalf of the

appellant that project Ushashi Exoticaa has been constructed upto a 4

substantial extent and in next six months time the corporate debtor shall be

in a position to hand over its possession. Such order was vacated on

18.02.2024 when it was noticed that the Corporate Debtor had failed to

construct the flats and hand over its possession to flat buyers till that date.

Rather the complaint of RP was the ex-directors were not cooperative.

8. In the circumstances we see no reason why a reasoned order passed by

the Ld. NCLT be set aside. The appeal thus has no merit and is accordingly

dismissed.

(Justice Yogesh Khanna) Member (Judicial)

(Mr. Indevar Pandey) (Member (Technical) Dated:23-8-2024 bm