Kamesh Badhana vs Govind Ram & Ors

Kamesh Badhana ...Appellant Vs

Goving Ram & Ors. ....Respondents

Present:

For Appellant: Mr. Shravan Yammanur and Mr. Abhishek Kumar, Advocates

For Respondents: Mr. Monamshel Maring, Advocate for Respondent Nos. 1, 2 & 3.

Mr. Kanwal Chaudhary, Advocate for Respondent No. 4

ORDER

18.09.2019 This appeal has been preferred by Promotor of M/s BOP

Projects Pvt. Ltd ('Corporate Debtor') against the order dated 11th October, 2018

passed by the Adjudicating Authority (National Company Law Tribunal, New

Delhi), New Delhi. In the said order the Adjudicating Authority entertained the

application under Section 33(2) read with Section 44 of Insolvency and

Bankruptcy Code, 2016 (in short IBC) filed by the Resolution Professional and

in absence of any approved Resolution Plan, ordered for liquidation of the

'Corporate Debtor'.

2. The appeal was preferred on 03.11.2018 and since then whenever the

matter was taken up, the case was adjourned for one or other reason.

Subsequently, it was informed that with regard to allottees of Real Estate

Company, the explanation to Section 5(8)(f) has been challenged before the

Company Appeal(AT)(Insolvency) No. 721 of 2018 Page 1 of 4 Hon'ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd. and

Anr. Vs. Union of India & Ors. - Writ Petition(Civil) No. 43 of 2019 and other

cases. In view of the pendency of the Writ Petition, the appeal was adjourned

from time to time. Now it has been brought to our notice that Hon'ble Supreme

Court has upheld the explanation to Section 5(8)(f) by its judgement rendered in

Pioneer Urban Land and Infrastructure Ltd. and Anr. Vs. Union of India &

Ors. - Writ Petition(Civil) No. 43 of 2019 - 2019 SCC Online 1005.

3. Learned Counsel for the Appellant submits that Hon'ble Supreme Court

while disposing of the Writ Petitions and the Civil Appeal ordered to continue the

stay orders granted until NCLT takes up each application and decide the same

in the light of the judgement. Relevant partition of the judgment reads as under:

"106. All writ petitions and the civil appeal are

disposed of in the light of this judgment. Stay orders granted

by this Court to continue until the NCLT takes up each

application filed by an allottee/home buyer to decide the

same in light of this judgment."

4. We find that the said Interim Order of stay passed by the Hon'ble Supreme

Court is not applicable in the present case as the application filed by the

allotee/home buyer was admitted on 13.04.2018 and the order of liquidation

was passed on 11.10.2018.

5. Learned Counsel for the Appellant submits that the Appellant was not

allowed to file any Resolution Plan. However, such submission cannot be

Company Appeal(AT)(Insolvency) No. 721 of 2018 Page 2 of 4 accepted at this stage. The Appellant having not moved application under

Section 60(5) of the IBC before the Adjudicating Authority with such prayer.

6. Learned Counsel appearing on behalf of the Liquidator brought to our

notice that this Appellate Tribunal had already granted the Appellant liberty to

file scheme of arrangement but the Appellant had not availed the remedy

available under Section 230 of the Companies Act, 2013. Scheme can be filed

only if the Appellant is eligible i.e., not declared ineligible in terms of Section 29A

of the IBC. However, there is nothing on record to suggest that the Appellant

moved before the Liquidator stating that he is eligible and not barred under

Section 29A of the IBC and for scheme of arrangement in terms of Section 230

of the Companies Act, 2013.

7. For the reasons aforesaid, while we are not inclined to interfere with the

impugned order dated 11th October, 2018 passed by the Adjudicating Authority

(National Company Law Tribunal, New Delhi) but the door is open to the

Appellant to take up the matter with the Liquidator for scheme of arrangement

under Section 230 of the Companies Act if he is not ineligible in terms of Section

29-A of the IBC.

8. In so far the winding up proceeding pending before the Hon'ble High Court

of New Delhi is concerned, in terms of Section 434 of the Companies Act, 2013,

the said petition is to be transferred, which Hon'ble High Court is stated to have

been re-transferred before the National Company Law Tribunal, but the Tribunal

on wrong presumption, have sent back the record to the Hon'ble High Court,

Delhi. In such case the aggrieved person may move before the appropriate forum.

Company Appeal(AT)(Insolvency) No. 721 of 2018 Page 3 of 4

The appeal is dismissed with the aforesaid observations. No costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Justice A.I.S. Cheema] Member (Judicial)

(Kanthi Narahari) Member(Technical)

Akc/Sk

Company Appeal(AT)(Insolvency) No. 721 of 2018 Page 4 of 4