Mrs. Vinita Gupta And Anr vs Vekas Kumar Garg & Ors

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Comp. App. (AT) (Ins) No. 786 of 2024 IN THE MATTER OF: Vinita Gupta & Anr. ...Appellants Versus Vekas Kumar Garg, ...Respondents Erstwhile RP of Ninex Developers Ltd. & Ors.

Present: For Appellant : Mr. Kunal Godhwani, Advocates. For Respondents : Mr. Rakesh Kumar, Ms. Preeti Kashyap, Mr. Ankit Sharma and Mr. Varun Pandit, Advocates for 'Resolution Professional'. Mr. Manish Paliwal and Ms. Megha Yadav, Advocates for R2.

ORDER

(Hybrid Mode)

10.05.2024: Heard counsel for the appellant as well as counsel for the

Resolution Professional. This appeal is filed against the order dated 15.2.2024

passed by the Adjudicating Authority in IA No. 4747 of 2022 filed by the

Appellant. The Appellant had given a booking amount for booking the unit in the

project of a Corporate Debtor. The booking amount given by the Appellant was

Rs.36 Lacs for 7 Flats. The Builder-Buyer's Agreement was executed on

16.2.2019 and 18.3.2019. The Corporate Debtor was proceeded with Insolvency

by order 25.7.2019 under the Builder-Buyer Agreement there was schedule for

payment of balance amount the schedule for payment is Annexure- 4 of the

Builder-Buyer Agreement. The Appellant after making the initial booking amount

did not make any payment. The Resolution Professional after noticing the

records of the Corporate Debtor found that no further payments have been made,

issued a notice for cancellation dated 28.3.2022. The Appellant received the cancellation notice and thereafter filed their application before the Adjudicating

Authority on 29.8.2023 that is almost after 16 months of the knowledge of

cancellation which application has been rejected by the impugned order.

Counsel for the Appellant submits that no notice for cure period of 30 days

was given to the Appellant hence the Unit ought not to be cancelled. It is

submitted that since the CIRP shall already been withdrawn under Section

12-A the clause in withdrawal of refund of 100% of principal amount ought not

to be applied to the Appellant.

We have considered the submission of the Appellant and perused the

record the Builder Buyer's Agreement itself contemplated the time, payment and

time period for the payment. Admittedly, no payments even made apart from

booking amount of Rs.3 Lacs per Flat and Rs. 4 Lacs for five Units and Rs.8 Lacs

for two Units. When we look into the records it is clear that Adjudicating

Authority has returned the finding that Resolution Professional after noticing the

records that no payments were paid by the applicants as per the Builder-Buyer's

Agreement the cancellation notice was issued on 28.3.2022. Admittedly, under

Builder-Buyer Agreement there is a liberty to the Corporate Debtor to cancel the

allotments when payments have not been made as per the Schedule-4 of the

Builder-Buyer Agreement which provides as follows:-

Comp. App. (AT) (Ins) No. 786 of 2024 2 of 4 ANNEXURE - IV SCHEDULE OF PAYMENT

APT. NO. E- 604 Bare Shell in Ninex City

Payment Plan

All Inclusive Sale Price (AISP) @ Rs. 2,500.00 per sq. ft

S.No Payment Description Due Date Amount (Rs.)

Sale Price

1. Booking amount (On application for 9,01,250/-

Booking)

2. Within 120 days from the date of 22,53,125/-

booking

3. Within 240 days from the date of 22,53,125/-

booking

4. Within 360 days from the date of 22,53,125/-

booking

5. On intimation of possession 13,51,875/-

Note Along with installment at S.No.3 (Intimation of possession), stamp duty, 1 registration charges, legal expenses and government levies & charges will have to be paid by the Allottee's extra. The above price is inclusive of BSP, PLC, Two Covered Parking, CMEC, EDC & IDC, but excluding Goods & Service Tax on AISP, which will also have to be paid by the Allottee's extra). In addition to the above, IFMS &. Electricity Charges alongwith Goods & Service Tax wherever applicable will also have to be paid extra by the Allottee's.

The submission of the Appellant that cure period of one month was not

allowed to the Appellant hence the cancellation was not valid, suffice to say that

even after receiving the notice from the 'Resolution Professional' informing the

cancellation no payment have been made and it was after 16 months that

application was filed before the Adjudicating Authority. We do not find any error

in the order of Adjudicating Authority in rejecting the application in the facts and

circumstances of the present case. The Adjudicating Authority has noticed that

decision was taken to refund entire principal amount of all the booking amount.

Comp. App. (AT) (Ins) No. 786 of 2024 3 of 4 Counsel for the Corporate Debtor submits that refund the principal amount as

noted in the impugned order shall be made within three months from today.

Subject to above the appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical)

harleen/NN

Comp. App. (AT) (Ins) No. 786 of 2024 4 of 4