Hari Om Dixit vs Ajit Shrivastava & Ors

IN THE MATTER OF: Hari Om Dixit ...Appellant Versus Ajit Srivastava & Ors. ...Respondents

Present: For Appellant : Mr. Abhijeet Sinha, Sr. Advocate with Mr. Ashish Choudhury, Mr. Abhishek Arora and Mr. Saikat Sarkar, Advocates.

For Respondents : Mr. Atul Kumar, Advocate for Intervenor.

Mr. Nipun Gautam, Advocate for IRP.

Mr. Aishwary Vikram and Mr. V.C. Shokla, Advocates for Homebuyers.

WITH

Company Appeal (AT) (Insolvency) No. 1053 of 2024

IN THE MATTER OF: Ajit Srivastava ...Appellant Versus Anand Sonbhadra (IRP for Gayatri Hospitality & Relation Ltd.) & Anr. ...Respondents

Present: For Appellant : Mr. Aishwary Vikram, Advocate.

For Respondents : Mr. Nipun Gautam, Advocate for IRP.

ORDER

(Hybrid Mode)

25.07.2024 : I.A. No. 3786 of 2024

1. This is an Application praying for clarification of the order dated

11.03.2024. On 11.03.2024, we passed following order:

"11.03.2024: Learned counsel for the Appellant submits that the application under Section 7 was filed initially by 8 Applicants. Subsequently, three application i.e. I.A. No. 4163 of 2021, I.A. No. 3422 of 2021 and I.A. No.499 of 2023 have been filed for impleadment. It is submitted that allotment of 19 Applicants was cancelled prior to filing of the applications, however, the issue raised by the Appellant has been wrongly rejected by the Adjudicating Authority in Para 29 of the order. Learned counsel for the Appellant submits that the Appellant has also offered to refund the entire amount along with SBI FD rates, hence, the Appellant was ready to clear the debt of all the Financial Creditors who want to exit. It is submitted that it was not a case for initiation of insolvency. Learned counsel for the Appellant submits that further plan was given for construction of all towers. RERA registration is still valid. It is submitted that there were no grounds for the Adjudicating Authority to admit Section 7 application.

2. Shri Krishnendu Datta, learned senior counsel seeks liberty to file an application for intervention on behalf of substantial number of homebuyers who are interested in opposing the initiation of insolvency proceedings.

3. Liberty is granted to file an intervention application within one week, as prayed for.

4. Learned counsel for the Respondent-applicant submits that the applications were maintainable and most of the allotments were cancelled after filing of impleadment application. It is submitted that all other issues were noticed by the Adjudicating Authority and there is no error in initiation of the insolvency by the Adjudicating Authority. Learned counsel for the Respondent submits that he has filed documents to indicate that only 13 flats were allotted at the time Section application was admitted.

5. Submissions raised by the parties require consideration.

6. Issue notice. Requisites along with process fee be filed within three days. Let Reply be filed by the Respondents within two weeks. Rejoinder be filed within two weeks thereafter.

7. List this Appeal on 22.04.2024.

I.A. No. 3786 of 2024 in Comp. App. (AT) (Ins.) No. 513 & 1053 of 2024 2 of 4

8. In the facts of the present case, in the meantime, no further steps be taken by the IRP in pursuance of impugned order dated 04.03.2024.

9. We, however, make it clear that it shall be open for those applicants who want to exit by taking entire amount along with SBI FD rate by communicating their acceptance to the Appellant for making payment within 60 days, as has been submitted.

10. Learned counsel for the Respondent submits that in view of the initiation of CIRP, the Corporate Debtor shall not alienate any of the assets of the Corporate Debtor or operate any accounts, without leave of the Court. That is the legal position which is well settled."

2. Learned Counsel for the Applicant submits that Applicant is ready to

refund the amount as per earlier Order to the willing Homebuyers and

Applicant further submits that Applicant is also ready to give possession to

those Homebuyers who are willing to take possession.

3. Counsel for the Respondent submits that since IRP has been appointed

no account of the Corporate Debtor can be used for refund. He further

submits that the Suspended Directors are not authorised to give any

possession to any Homebuyers and it is the IRP to take a call on handing over

the possession.

4. We are of the view that the Order dated 11.03.2024 clearly provided

that it shall be open for those Applicants who want to exit by taking entire

amount along with SBI FD rate by communicating their acceptance to the

Appellants for making payment within 60 days. However, we clarify that

Order did not permit the Suspended Director to use the accounts of the

Corporate Debtor and the amount to be paid to Homebuyers for refund should

be routed through IRP. It is for the IRP to consider the request and handover

the possession if required.

With these observations, we dispose of the application. I.A. No. 3786 of 2024 in Comp. App. (AT) (Ins.) No. 513 & 1053 of 2024 3 of 4 Comp. App. (AT) (Ins.) Nos. 513 & 1053 of 2024

List these Appeals on 05th September, 2024 at 02:00 PM.

Interim Order to continue.

[Justice Ashok Bhushan] Chairperson

[Arun Baroka] Member (Technical) himanshu/nn

I.A. No. 3786 of 2024 in Comp. App. (AT) (Ins.) No. 513 & 1053 of 2024 4 of 4