Parsvnath Developers Limited vs A S Choudhary

Parsvnath Developers Ltd. ...Appellant

Versus

A.S. Choudhary & Ors. ...Respondents

Present: For Appellant: Mr. Sakal Bhushan, Mr. Karan Rajpurohit and Mr. Vasu Bhushan, Advocates. For Respondents: Mr. Satendra K. Rai, Mr. Aditya Dewan and Mr. Pravar Veer Misra, Advocates for R-1.

ORDER

(Virtual Mode)

29.07.2022: Heard counsel for the Appellant. This Appeal has been filed

against the order dated 29.04.2022 passed by the Adjudicating Authority

(National Company Law Tribunal), New Delhi, Bench III rejecting I.A. No. 1774

of 2022.

2. Appellant in the I.A. No. 1774 of 2022 has made following prayers:-

"a) Recall the order dated 29.03.2022 (Annexure-

1) inadvertently passed by this Hon'ble Tribunal in I.A. No. 4584 of 2021 in Company Petition No. IB-660(ND)/2019 as explained above; and

b) Instead declare the Company Petition No. IB-

660(ND)/2019 having been dismissed as withdrawn with effect from 27.01.2020 in view

Cont'd.../ 2

of the deeming fiction of deemed withdrawal contained in Third proviso to Section 7(1) IBC as inserted vide IBC (Amendment) Act, 2020 w.e.f. 28.12.2019; and

c) Pass such other/further orders, as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the instant case."

3. The Adjudicating Authority vide an earlier order dated 29.03.2022

passed on the application of the applicant issued directions to the Corporate

Debtor in Para 11 and 12 of order, which are to the following effect:-

"11. In view of the above findings, we are of the considered view that the judgement in Manish Kumar case will not help the Corporate Debtor in any manner. The home buyers in the given situation cannot be permitted to be left in lurch and at the mercy of such builders who are violating Law relating to the Real Estate Regulating Authority in the first instance and taking shelter of the same violation and denying the relevant information to the allottees. We, therefore, once again direct the Corporate Debtor to provide all information as specifically brought out in Para No. 02 above, which is extracted again below:

"The information to be provided by the CD to the financial creditors in class shall include the names, address, Telephone/ Mobile numbers/e-mails of the allottees of

Company Appeal (AT) (Insolvency) No. 833 of 2022 3

project, which is the subject matter of the application."

12. The compliance of these directions shall be made by the Corporate Debtor in 15 days' time, failing which appropriate punitive action may be initiated against the Corporate Debtor."

4. Learned counsel for the Appellant submits that by I.A. No. 1774 of

2022, he was only asking for procedural review. He never prayed for review

on merits. He further submits that in view of the provisions of Section 7 Sub-

section (1) 2nd and 3rd proviso of the I&B Code, the application filed by the

Financial Creditor has to be treated as deemed rejected w.e.f. 27.01.2020, as

has been prayed in the application. He further submits that the Adjudicating

Authority did not advert to this issue and has wrongly rejected the I.A. No.

1774 of 2022.

5. We have considered submissions of learned counsel for the Appellant

and perused the record.

6. The earlier order dated 29.03.2022 which was passed by the

Adjudicating Authority is a detailed order where all submissions were noticed

including the judgment of Hon'ble Supreme Court in the matter of Manish

Kumar dated 19.01.2021. Learned counsel for the Appellant submits that

however, in the order dated 29.03.2022 the effect of Section 7(1) 2nd and 3rd

proviso was not considered.

Company Appeal (AT) (Insolvency) No. 833 of 2022 4

7. The order dated 29.03.2022 issued direction to the Appellant to disclose

the details to the allottees. In that order, the Adjudicating Authority has also

noted that even at the time of hearing, the counsel appearing for the Corporate

Debtor objected in providing details of the allottees. When the order dated

29.03.2022 has still not been complied by the Appellant by providing the

details of the Allottees, the submission of the Appellant that application filed

by the Financial Creditor has to be treated as deemed to have been rejected,

cannot be accepted. Further in I.A. No. 1774 of 2022, the prayer was not for

procedural review rather prayer was made for substantive review of a well-

reasoned order dated 29.03.2022. Hence, the Adjudicating Authority has

rightly rejected the application I.A. No. 1774 of 2022. In the impugned order

the Adjudicating authority has rightly observed that the Tribunal do not have

powers for substantive review of its order. We do not find any error in the

order of the Adjudicating Authority rejecting I.A. No. 1774 of 2022. Appeal is

dismissed.

[Justice Ashok Bhushan] Chairperson

[Justice M. Satyanarayana Murthy] Member (Judicial)

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 833 of 2022