Mr. Lalit Sanduja vs Vikas Mittal

IN THE MATTER OF: Lalit Sanduja Suspended Board of Director Swastik Homebuild Pvt. Ltd. ...Appellant

Versus

Vikas Mittal & Ors. ...Respondents

Present: For Appellant : Mr. Pulkit Deora, Mr. Akhil Shankhwar, Mr. Vishwajeet Pandey, Advocates. For Respondents : Mr. S. K. Verma and Mr. Rahul Bhardwaj, Advocate for R-1.

ORDER

(Hybrid Mode)

21.01.2025: Heard learned counsel for the Appellant as well as learned

counsel for the Respondent. This appeal has been filed against order dated

19.12.2024 by which order the Adjudicating Authority has admitted Section

7 application filed by the Financial Creditors in a class. When the Appeal was

heard on earlier occasion an order was passed by this Tribunal on 03.01.2025

directing the Appellant to bring relevant Occupancy Certificate on record.

Order dated 03.01.2025 is as follows:

"O R D E R (Hybrid Mode)

03.01.2025: Learned counsel for the Appellant seeks time to bring on record Occupancy Certificate (O.C.) issued by the competent authority. As prayed, three days' time is allowed to bring relevant O.C. on record.

Cont'd.../ 2

List this Appeal on 09.01.2025."

2. In pursuance of the order of this Tribunal an affidavit of compliance has

been filed by the Appellant. Learned counsel for the Appellant challenging

the order submits that the Completion Certificate was issued by the Architect,

who was duly authorised to issue completion certificate, which has been

brought on the record at page 271 of the appeal. He submits that the units

are complete and even possession was offered by the Promoter to the Allottees

in September, 2022 but they have not taken possession. It is further

submitted that a deed has been executed on 18.07.2023 with one of the

Allottee namely Piyush Govil, which is brought on record at page 41 of the

Compliance Affidavit, which indicate that units are complete. Learned

counsel for the Appellant further contended that the application was not filed

by authorised person. He has referred to page 213 of the paper book and

submitted that the application was signed by Rahul Bhardwaj whereas the

affidavit is signed by Vikas Mittal. It is further submitted that the

authorisation of different homebuyers are dated subsequent to 11.01.2024

and when the affidavit was signed subsequently, the application was not

appropriately framed.

3. Learned counsel for the Respondent submits that the units were never

complete and Occupancy Certificate has not been issued to the Corporate

Debtor, hence, there was no occasion to take possession by the Allottees. It

is further submitted that Vikas Mittal was authorised person who has signed

the application at page 213 and Rahul Bhardwaj has signed vakalatnama and

memo. It is submitted that before the Adjudicating Authority an additional

Company Appeal (AT) (Insolvency) No.03 of 2025 3

affidavit was filed by the Applicants bringing on record affidavits and

authorisation, which was noted by the Adjudicating Authority and no

objection was raised regarding authorisation.

4. We have considered the submissions of learned counsel for the parties

and perused the record.

5. The first question, which need to be considered is whether there is

Occupancy Certificate in favour of the Appellant. The Appellant has relied on

Completion Certificate dated 02.02.2022 which is issued by the Architect.

The Completion Certificate issued by the Architect has been brought on record

at page 275, which is as follows:

"COMPLETION CERTIFICATE

I hereby certify that BLOCK-A (Tower-A & B) of Group Housing project 'Genesis Sky Heights" on Khasra No./Plot No 661, 668, 670 to 673 AT Village: -

NAUGAWAN, TEH- TIJARA, ALWAR, RAJ.

Owned/developed by M/s SWASTIK HOMEBUILD PVT. LTD. was personally inspected by me and based on the above fact, building construction on site is complete in accordance with the approved building plans. Type of the building (Residential) is also in accordance with the approved plan. Hence the Completion Certificate is issued as per my best knowledge and Information provided to me under my signature on date 02-09-2022.

Note:-

1. This Completion Certificate is only valid after the deposition of Application fees or any Pending amount/fees demanded by BIDA, Bhiwadi, Rajasthan.

Company Appeal (AT) (Insolvency) No.03 of 2025 4

2. After commencement of this completion certificate if any deviation found against the approved building maps then Empanelled Architect will not be responsible for such changes.

3. It is mandatory to obtain OCCUPANCY CERTIFICATE after completion of all external works and required NOC's as per building by-laws.

4. This Completion Certificate is only for completion of building as per approved maps and is not stands for any type of STRUCTURE SAFETY and for Occupancy.

MAYUR GOYAL S-258, Second Floor, Sukham Tower, Bhagat Singh Colony, Bhiwadi, Alwar CA/2009/46101 CTP RAJ./Architect/2021/51"

6. A bare perusal of above certificate indicates that the certificate given by

the Architect is Completion Certificate and said is not Occupancy Certificate.

The Appellant in the Affidavit of Compliance has himself brought relevant

notification on record namely BIDA Model Building Regulations, 2021

gazetted on 06.08.2021. When we look into the said notification, it is clear

that there are separate provisions for Completion Certificate as well as

Occupancy Certificate. Occupancy Certificate is dealt with in Clause 17,

which is as follows:

"17. Occupancy Certificate:

17.1 After completing the construction of the building as per the approved map and obtaining the completion certificate, after providing necessary facilities in the building such as electricity, water, sewerage treatment plant, transformer, architectural finishing such as painting, false ceiling, interior, site development, parking signages, landscaping. plantation etc., the developer will have to apply for Occupancy Certificate

Company Appeal (AT) (Insolvency) No.03 of 2025 5

before the competent authority/architect registered for this purpose by the State Government. It will be mandatory to obtain Consent to Operate from the Environment Department within the period of issuance of Occupancy Certificate.

17.2 Within 7 days from the date of receipt of the application, the competent officer/registered architect will carry out the necessary investigation and issue the Occupancy Certificate.

17.3 For all types of multi-storey buildings and for special buildings, occupancy certificate can be issued only after final satisfaction letter is issued from the fire officer. In cases where it is mandatory to obtain environmental clearance, the applicant will also have to submit the clearance from the environmental department before obtaining the occupancy certificate. 17.4 It will be necessary to obtain Occupancy Certificate for the buildings mentioned in the provisions of the Real Estate (Regulation and Development) Act, 2016 and the Rajasthan Real Estate (Regulation and Development) Rules, 2017 made thereunder."

7. Completion Certificate is referred to in Clause 16 of the Notification,

which is relied by the Appellant. The above statutory regulation itself makes

it clear that there are two different certificates namely Completion Certificate

and Occupancy Certificate. Only Completion Certificate has been produced,

hence, we hold that there is no Occupancy Certificate issued to the Corporate

Debtor. Hence, submission of the Appellant that the units were complete but

the Allottees has refused to take possession cannot be accepted as without

Company Appeal (AT) (Insolvency) No.03 of 2025 6

their being an Occupancy Certificate no units were available to take

possession.

8. The second submission of the Appellant is that there is no appropriate

authorisation. The affidavit has been filed by Vikas Mittal who claim to be

authorised person on behalf of the Allottees and it is Vikas Mittal who has

signed application at page 213 and Affidavit at page 214. In so far as

authorisation of Allottees which is subsequent to 11.01.2024, in this regard

we take notice of the submission of the Respondent that subsequently an

Additional Affidavit was filed bringing on record authorisation as well as

affidavits and no objection was raised on maintainability of the application

filed on behalf of Creditors in a class. We do not find any substance in the

submission of the Appellant.

9. The Adjudicating Authority after finding debt and default has admitted

application under Section 7, hence, we do not find any infirmity in the

impugned order. There is no merit in the Appeal. Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No.03 of 2025