Kaushalya Bansal vs Dwarkadhis Projects Private Limited

Company Appeal (AT) (Insolvency) No. 1052 & 1053 of 2021

IN THE MATTER OF:

Kaushalya Bansal ...Appellant

Versus

Dwarkadhis Projects Pvt. Ltd. ...Respondent

Present: For Appellant: Mr. Kunal Godhwani and Ms. Maya Gupta, Advocates. For Respondent:

ORDER

(Virtual Mode)

17.12.2021: Heard Learned Counsel for the Appellant. This Appeal has

been filed against orders dated 23.08.2021 and 20.10.2021 passed by the

Adjudicating Authority (National Company Law Tribunal), New Delhi Bench

(Court II), by which the Application filed by the Appellant under Section 7 of the

Insolvency and Bankruptcy Code, 2016 (for short 'IBC') has been rejected.

2. On 10.09.2012, the Appellant paid an amount of Rs.8,88,841/- towards

booking of Unit No. A-1/122 in Tower A-1 of the project of the Corporate Debtor.

Appellant paid certain further amount to the Corporate Debtor but the possession

of the flat was not handed over to her. The Corporate Debtor issued letters in the

year 2013 demanding payment from the Appellant and by letter dated

29.01.2014, the Corporate Debtor cancelled the allotment. The letter dated

29.01.2014 further stated that after deduction an amount of Rs.10,59,320/- is

payable by the Corporate Debtor to the Appellant. It is the case of the Corporate -2-

Debtor that apartment was restored in the name of the Appellant vide letter dated

03.12.2015 and another letter dated 19.06.2018 was issued by the Corporate

Debtor demanding payment from the Appellant.

3. Application under Section 7 was filed by the Appellant in the year 2019,

which has been rejected by the impugned order. The Learned Adjudicating

Authority held that the petitioner was an allottee under the real estate project

and the amount invested by the Appellant will be treated as the financial debt

under section 5(8)(f) Explanation (i) of the IBC. Hence, Appellant had to comply

with amended provision of Section 7 of IBC. The Adjudicating Authority further

observed that although the allotment of apartment was earlier cancelled but

subsequently it was restored, hence, the Appellant continues to be an allottee.

Appellant having not complied with the amended provision of Section 7, the

application of the Appellant was dismissed.

4. The Appellant challenging the impugned orders contends that Learned

Adjudicating Authority has accepted the Appellant as allottee, whereas after

cancellation of the allotment, she shall no longer be treated as an allottee.

Learned Counsel for the Appellant submits that the finding of the Adjudicating

Authority regarding restoration of allotment in favour of the Appellant by letter

dated 03.12.2015 is not correct, since the Appellant denied receipt of such letter.

5. We have considered submissions of the Learned Counsel for the Appellant

and perused the record.

Company Appeal (AT) (Insolvency) No. 1052 & 1053 of 2021 -3-

6. Whatever amount was paid by the Appellant to the Corporate Debtor was

consequent to the allotment of the flat in the project of the Corporate Debtor. The

amount advanced by the Appellant was financial debt and she continued to be

an allottee and was liable to comply with the provisions of the Section 7 as

amended in 3rd proviso enforced by Act 1 of 2020, w.e.f. 28.12.2019. The

Appellant having not complied with the 3rd Proviso, application was deemed to be

withdrawn before its admission, the Appellant's status being of an allottee.

7. We, thus, do not find any infirmity in the decision of the Adjudicating

Authority rejecting the application of the Appellant as she has not complied with

the amended provision. The appeal is dismissed accordingly.

[Justice Ashok Bhushan] Chairperson

[Justice Jarat Kumar Jain] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical) Archana/nn.

Company Appeal (AT) (Insolvency) No. 1052 & 1053 of 2021