Nitant Verma vs Concept Horizon Infra Private Limited ...

IN THE MATTER OF: Nitant Verma ...Appellant

Versus

Concept Horizon Infra Pvt. Ltd. & Ors. ...Respondents

Present: For Appellant: Mr. Abhijeet Sinha, Sr. Advocate with Ms. Nattasha Garg, Mr. Anubhav Dubey, Mr. Thakur Ankit, Advocates. For Respondents: Mr. Rishi Singh, Ms. Reema Advocates for R-1 (IRP).

With

Company Appeal (AT) (Insolvency) No. 1364 of 2022 & I.A. No. 4246, 4247 of 2022 & 172 of 2025

IN THE MATTER OF: Orizzonte Social Welfare Society ...Appellant

Versus

Concept Horizon Infra Pvt. Ltd. & Ors. ...Respondents

Present: For Appellant: Mr. Arup Sinha, Ms. Arham Tanvir, Mr. Uday Arora, Mr. Shivam Srivastava, Mr. Dhairya Verenkar, Advocates. For Respondents: Mr. Rishi Singh, Ms. Reema Advocates for R-1 (IRP).

ORDER

(Hybrid Mode)

10.07.2025: This Appeal has been filed by the Suspended Director of

the Corporate Debtor - M/s Concept Horizon Infra Pvt. Ltd. dated 14.10.2022

by which order NCLT, New Delhi Bench (Court-II) has admitted Section 7 2

application filed by Meena Porwal and 65 others claiming to be allottees of the

Corporate Debtor where their case was that they had advanced term loans of

varying amounts to the Corporate Debtor under identical Buyback

Agreements and assured returns, however, default had been committed by

the Corporate Debtor. The Adjudicating Authority after hearing the

Applicants and the Corporate Debtor, admitted Section 7 application and

appointed an IRP.

2. In the appeal notices were issued on 14.11.2022. Notices were served

on Respondent who appeared before the Tribunal on 25.01.2023 and prayed

for time to file Reply. Replay affidavit has been filed by Respondent Nos. 2, 3,

12, 20, 59, 61 and 63. Other Respondents having not appeared, this Court

on 02.05.2023 directed for substituted served by publication in newspapers.

Publication was already affected, which was noticed in the order dated

02.05.2023. Out of the Respondents who initiated Section 7 proceeding only

few have filed Reply Affidavit, as noted above. The IRP had appeared and filed

Status Report.

3. When the Appeal was taken on 12.07.2023, learned counsel for the

Appellant submitted that developer is ready to fund the construction as well

as take other steps as required to be taken for construction. On 12.07.2023

following order was passed:

"ORDER

12.07.2023: Learned Counsel for the Appellant submits that there is already an order passed on

Company Appeal (AT) (Ins.) No.1335 & 1364 of 2022 3

15.11.2022 in Comp. App. (AT)(Ins.) No. 1364/2022 that steps be taken to carry on construction with the co-operation of ex-management and ex-employees by the IRP.

2. Learned Counsel for IRP who is present in the Court submits that RERA registration has already been lapsed and that there are no funds available to carry out construction.

3. Learned Counsel for the Promoter Shri Abhijeet Sinha submits that Developers are ready to fund the construction as well as other steps required to be taken for start of construction.

4. Let IRP take appropriate steps to enable the construction to go on. The project being the Real Estate Project, completion of construction shall be beneficial to all.

Let appeal be listed after six weeks. The IRP may file the status Report by the next date.

List this appeal on 28.08.2023.

Stay on the constitution of CoC shall continue."

4. The IRP has filed Status Report, last being Status Report dated

24.02.2025. The Appellant has filed an Affidavit on 14.05.2025, where

necessary reports including NOC from Airport Authority, Fire Department,

Environment Department has been brought on the record.

5. Both the above appeals arise out of the order passed by the Adjudicating

Authority on Section 7 application filed by Meena Porwal and 65 others.

Company Appeal (AT) (Ins.) No.1335 & 1364 of 2022 4

Applicants' case in Section 7 application i.e. C.P. (IB) No. 1915 of 2019 was

that they have advanced term loans of varying amounts to the Corporate

Debtor under identical Buyback Agreements attached to the application and

to secure the repayment obligations under the Buyback Agreements, a

security interest was created in favour of each of the Applicant in the form of

contingent allotment. The Corporate Debtor has appeared before the

Adjudicating Authority and opposed submitting that the Applicants does not

fulfil the threshold as required under proviso to Section 7 Sub-section (1).

The Adjudicating Authority admitted the CIRP by order dated 14.10.2022.

6. Orizzonte Social Welfare Society has filed Company Appeal (AT) (Ins.)

No.1364 of 2022, which is society of homebuyers with respect to project

Orizzonte. In their appeal they have made following prayers:

"a. Set aside the Impugned Order dated 14.10.2022 passed by the Ld. National Company Law Tribunal, Bench II at Delhi in CP (IB) NO.62/CB/2021, titled as in CP (IB) No. 1915 of 2019, titled as "Smt. Meena Porwal & Ors. Vis. M/s. Concept Horizon Infra Private Limited";

b. Stay the operation and effect of the Impugned Order dated 14.10.2022 passed by the Ld. National Company Law Tribunal, Bench II at Delhi.in CP (IB) NO.62/CB/2021, titled as in CP (IB) No. 1915 of 2019, titled as "Smt. Meena Porwal & Ors. Vis. M/s. Concept Horizon Infra Private Limited";

Company Appeal (AT) (Ins.) No.1335 & 1364 of 2022 5

c. Dismiss the application filed by the Respondent Nos. 2 to 66 under Section 7 of the Code being CP(IB)- 1915/2019 for not complying with the second proviso to Section 7;

d. Pass any other order that this Tribunal may deem fit."

7. Thus, the Welfare Society of homebuyers is also aggrieved by the order

initiating CIRP. The learned counsel appearing for the Appellant in Company

Appeal (AT) (Ins.) No.1364 of 2022 submits that the members of the Society

wants that their units be handed over to them and they also support the

construction to be carried out in accordance with law after obtaining renewal

of registration and other necessary regulatory requirements. Learned counsel

for the Welfare Society submits that no construction has yet started.

8. We have heard Shri Abhijeet Sinha, learned senior counsel for the

Appellant in Company Appeal (AT) (Ins.) No.1335 of 2022, Shri Aurp Sinha,

learned counsel for the Appellant in Company Appeal (AT) (Ins.) No.1364 of

2022. We have also heard learned counsel appearing for the IRP as well as

learned counsel appearing for the Intervener - Homebuyers.

9. Learned counsel for the Appellant appearing in Company Appeal (AT)

(Ins.) No.1335 of 2022 submits that present is a case where the reverse CIRP

has been directed by order of this Tribunal directing the Promoter to fund the

CIRP. It is submitted that steps regarding construction are being taken and

necessary approval have also been obtained. It is further submitted that the

Respondents who had initiated the Section 7 proceeding now themselves are

Company Appeal (AT) (Ins.) No.1335 & 1364 of 2022 6

agreeable that construction be carried out by the Promoters and even the

Respondents who initiated Section 7 are not in favour of continuance of CIRP.

10. Learned counsel appearing for the Welfare Association submits that

some of the Applicants who initiated the CIRP process have now joined the

Association and Association has entered into a settlement with the Promoters

for carrying out the construction. It is submitted that the Association consists

of large number of homebuyers i.e. more than 259 members who are allottees

and application under Section 7 was initiated by 66 allottees only some of

which have already joined the Association. It is submitted that the Welfare

Association which has filed Company Appeal (AT) (Ins.) No.1364 of 2022 is

opposing the CIRP and prayed for setting aside CIRP since the Welfare

Association support the construction so that units be completed and handed

over to the allottees.

11. Learned counsel for the IRP submits that under the orders of this Court,

IRP has taken steps for commencement of construction. It is submitted that

necessary approvals and test reports have been obtained and Promoter have

also entered into agreement with the new developer who has to carry out

construction work. It is submitted that RERA registration has lapsed,

application for renewal of which has already been made and on account of

non-receiving of the renewal of registration, construction could not be

proceeded with.

Company Appeal (AT) (Ins.) No.1335 & 1364 of 2022 7

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

and perused the record.

13. These two appeals have been filed challenging the order admitting

Section 7 application, which was filed by 66 Applicants who had claimed that

they had advanced term loan of various amounts to the Corporate Debtor

under identical Buyback Agreements and to secure the repayment obligations

under the Buyback Agreements security interest was created in form of

contingent allotment.

14. As noted above, the application under Section 7 filed by Meena Porwal

and 65 other applicants. Reply Affidavit has been filed by Meena Porwal and

certain other Respondents, as noted above. It is useful to notice the Reply

Affidavit which was filed by Meena Porwal, Respondent No.2 herein. A short

affidavit of only 4 paragraphs has been filed by Respondent No.2 which has

been styled as Reply Affidavit, which affidavit is as follows:

"AFFIDAVIT

I, Meena Porwal, D/o Sh. Surya Prakash Toshniwal, age 44 years, residing at 102/115, Silver Oaks Apartments, DLF Phase-1, Guru gram, Haryana- 122002, do hereby solemnly affirm and declare as under: -

1. I booked a unit having 460 sft. in the Project "ORIZZONTE" (herein after referred as "Project") being developed by M/s Concept Horizon Infra Pvt Ltd./Respondent No. 1 and the Respondent No. 1

Company Appeal (AT) (Ins.) No.1335 & 1364 of 2022 8

issued a Memorandum of Understanding (MOU) dated 15-07-2015.

2. I along with other persons who had booked a unit in the Project had filed a Petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 ("IBC") bearing no. CP (IB)/1915/2019 against the Respondent No. I before the Ld. National Company Law Tribunal, Delhi.

3. That, during the pendency of aforesaid proceedings, several allottees of the Project formed an association and got it registered with a Registrar of Societies under the name "Orizzonte Social Welfare Society", ("Association") having registration no.: GBN/06315/2021-2022. It has come to my knowledge that the said association acting on behalf of all the Allottees / members, has entered into a Conciliation Agreement dated 07.07.2022 with the Respondent No. 1 agreeing to and allowing the Respondent No. 1 to complete construction of the Project. Further in terms of the said Conciliation Agreement, the Respondent No. l has undertaken to complete construction and handover units within three years from the date of its registration with the RERA.

4. In view of the above fundamental change in circumstances and in the larger interest of completion of the Project, I do not wish to pursue the proceedings under Section 7 of the IBC against the Respondent No. l any further."

Company Appeal (AT) (Ins.) No.1335 & 1364 of 2022 9

15. The above Affidavit clearly gives the case of the Respondent that several

allottees of the Project formed an association and got it registered under the

name Orizzonte Social Welfare Society. In Para 3 of the above affidavit, it has

been mentioned that Association has acted on behalf of all the Allottees /

members, and they have entered into a Conciliation Agreement dated

07.07.2022 with the Corporate Debtor agreeing to allow the Corporate Debtor

to complete construction of the Project. The above stand taken by the

Respondents, who had initiated the proceeding clearly indicate that the

Respondents who were applicant before the Adjudicating Authority are also

in favour of construction to be carried out by the Corporate Debtor and

allottees' Welfare Society has filed Appeal praying for same relief i.e. closure

of CIRP. Although, Affidavit has been filed by few of the Respondents, as

noted above, but at the time of hearing none appeared for the Respondents to

oppose the appeals.

16. Construction by the fund of Promoter under the supervision of IRP has

already been directed by this Tribunal, as noted above. A detailed Status

Report and Affidavit have been brought on record which indicate that various

necessary steps taken towards commencement of construction and obtaining

no objection from various authorities. NOC dated 06.05.2025 from Greater

Noida Authority has been brought on the record.

17. In facts of the case and submissions as noted above, we see no reason

to continue the CIRP any further. The construction of the project may

continue with the funding by the Promoter as submitted before us. The CIRP

Company Appeal (AT) (Ins.) No.1335 & 1364 of 2022 10

is closed. We, however, grant liberty to the requisite number of allottees to

initiate any fresh proceeding under Section 7, if any cause for initiating the

proceeding is made out. IRP shall be paid his fees and reasonable expenses

incurred in the CIRP process so far by the Corporate Debtor. With the

aforesaid, both the appeals are disposed of.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Ins.) No.1335 & 1364 of 2022