Rahul Jain vs Arunava Sikdar

IN THE MATTER OF: Rahul Jain ....Appellant

Vs.

Nilesh Sharma ....Respondent Resolution Professional of Dream Procon Pvt. Ltd.

Present: For Appellant: Mr. Shivam Kumar, Advocate. For Respondent: Ms. Varsha Banerjee, Advocate for R-1/RP. Mr. Prithu Garg, Mr. Shivam Singh, Mr. Ashutosh Arvind Kumar, Advocates for SRA.

JUDGMENT

Per: Justice Rakesh Kumar Jain:

This appeal is directed against the order dated 11.08.2023 by which an

application bearing I.A. No. 4954/2022 filed by the appellant in which the

appellant made the prayer to admit his claim as a Financial Creditor in a

class and to consider his case at par with the other unit buyers/claimants

while implementing the Resolution Plan has been rejected primarily on the

ground that the application has been filed belatedly. In brief, the case set up

by the appellant is that he is the home buyer who has purchased the flat

bearing unit number B-1901 situated at Plot No. GH - 02, Sector - 143,

Noida, Uttar Pradesh in the project "Victory Ace" developed by the Corporate

Debtor, namely, M/s Dream Procon Pvt. Ltd. for which the appellant has

paid Rs. 43,53,983/- out of 60,00,300/-.

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2. One of the Home buyer in the aforesaid project, namely, Ms. Priyanshi

Arora, as a Financial Creditor, filed an application under Section 7 before the

Tribunal against the Corporate Debtor which was admitted on 06.09.2019.

The Respondent No.2, namely, Victory Ace Social Welfare Society (Association

of the Home buyers of the same project) submitted the resolution plan which

was approved by the CoC on 07.05.2021. The appellant submitted his claim

on Form CA to the RP on 19.09.2022 after a delay of 980 days from the last

date of submission of claim and 492 days after the approval of the plan by the

CoC. The claim of the appellant was rejected by the RP on same day i.e.

19.09.2022 which led to the filing of I.A. No. 4954 of 2022 before the

Tribunal. The Tribunal dismissed the application observing that the plan was

approved on 07.05.2021 in the 11th meeting of the CoC by 90.66% votes and

the claim is highly belated.

3. The Tribunal relied upon a decision of this Court in the case of 'Puneet

Kaur vs. K V Developers Private Limited & Ors.' in Comp. App. (AT) (Ins.) No.

390 of 2022 decided on 01.06.2022, holding that if the claim is filed after the

approval of the plan by the CoC then it cannot be considered.

4. Counsel for the appellant has argued that the asset of the appellant has

been reflected in the Information Memorandum by the RP and has also drawn

our attention to the list of unit holders who had not filed the claim in which

name of the appellant is at Sl. No. 52 in which it is reflected that the selling

price of the unit is Rs.60,00,300/-, the amount received by the Corporate

Debtor is Rs.49,26,674/- and the balance amount is Rs.10,73,626/-.

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5. Counsel for the appellant has relied upon the same decision of this

court in the case of Puneet Kaur & Ors. Vs. KV Developers Pvt. Ltd. & Ors.

(supra) to contend that even if it is presumed that the appellant has not filed

its claim even then this court has held that if the liability have been reflected

in the Information memorandum then it is the duty of the RP to submit the

detail of the Home buyers to the Resolution Applicant on the basis of which

the Resolution Applicant shall prepare the resolution plan and place before

the CoC for its consideration.

6. As against this counsel for the respondent has relied upon a decision of

this court rendered in Comp. App. (AT) (Ins.) No. 1511 of 2023 'Pooja Mehra

vs. Nilesh Sharma & Ors.' decided on 19.04.2024 to contend that it was a

case pertaining to the same Corporate Debtor in which the appellant is one of

the home buyer. It is submitted that the claim of Pooja Mehra was declined

by this court despite the fact that the decision in the case of Puneet Kaur &

Ors. Vs. KV Developers Pvt. Ltd. & Ors. (supra) was cited. It has also been

argued that in the case of 'M/s RPS Infrastructure Ltd vs. Mukul Kumar &

Anr.' in Civil Appeal No. 5590 of 2021 decided by Hon'ble Supreme Court, it

has been held that after the approval of the plan by the CoC the claim cannot

be considered.

7. In rebuttal, counsel for the appellant has submitted that the decision in

the case of M/s RPS Infrastructure Ltd vs. Mukul Kumar & Anr. (supra) is on

its own facts because in that case the record of the Corporate Debtor was not

available with the RP and in this regard the Hon'ble Supreme Court has held

that:

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"If we analyse the aforesaid plea, it is quite obvious that

Respondent no. 1 did what could be done to procure the

Corporate Debtor's records by even moving an application

under Section 19 of the IBC. That it was not fruitful is a

consequence of the Corporate Debtor not making

available the material. It is thus not even known whether

there was a reflection in the records on this aspect or

not."

8. It is submitted that in the present case the liability of the Corporate

debtor qua the appellant was clearly reflected in the Information

Memorandum and his record was also made part of the Information

Memorandum but the treatment given by the Resolution Applicant in the plan

is of the extinguishment of their claim which is contrary to decision of this

court in the case of Puneet Kaur & Ors. Vs. KV Developers Pvt. Ltd. & Ors.

(supra).

9. We have heard Counsel for the parties and perused the record.

10. There is no dispute that the liability of the CD towards the Appellant is

clearly reflected in the IM. The appellant has also filed the claim belatedly and

the CoC has approved the plan but the plan has not been approved by the

Adjudicating Authority so far as it is pending for its consideration. The

appellant has basically relied upon a decision in the case of Puneet Kaur

(Supra) in which this court has held that "in the preset case there is no denial

that details of the Appellant(s) and other homebuyers, who could not file their

claims has not been reflected in the IM. There being no detail of claims of the

appellant(s), the resolution applicant could not have been taken any

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consideration of the claim of the appellant(s), hence, resolution plan as

submitted by resolution applicant cannot be faulted". However, at the same,

in the case of Puneet Kaur (Supra) this Court has held that "however, we are

of the view that the claim of those homebuyers, who could not file their

claims, but whose claims were reflected in the record of the CD, ought to have

been included in the IM and resolution applicant, ought to have been taken

note of the said labilities and should have appropriately dealt with them in

the resolution plan. Non-consideration of such claims, which are reflected

from the record, leads to inequitable and unfair resolution as is seen in the

present case. To mitigate the hardship of the Appellant, we thus, are of the

view that ends of justice would be met, if direction is issued to resolution

professional to submit the details of homebuyers, whose details are reflected

in the records of the CD including their claims, to the Resolution applicant,

on the basis of which resolution applicant shall prepare an addendum to the

resolution plan, which may be placed before the CoC for consideration."

11. The argument of the Respondent that since the CoC has already

approved the plan and the claim has been filed after the approval of the plan,

the decision in the case of M/s RPS Infrastructure Ltd. (Supra) would come in

the way of the Appellant because in that case it has been held that "the mere

fact that the AA has yet not approved the plan does not imply that the plan

can go back and forth, thereby making the CIRP an endless process. This

would result in the reopening of the whole issue, particularly as there may be

other similar persons who may jump onto the bandwagon."

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12. In the aforesaid case, however, it has been observed by the Hon'ble

Court in para 18 that "if we analyse the aforesaid plea, it is quite obvious that

respondent no. 1 did what could be done to procure the CD's records by even

moving an application under Section 19 of the Code. That it was not fruitful

is a consequence of the CD not making available the material. It is thus not

even known whether there was a reflection in the records on this aspect or

not."

13. Further, since the claim was filed after delay of 287 days and creditor

feigned ignorance about the CIRP about which the Hon'ble court has held

that the Appellant being a commercial entity and had been litigating against

the CD, therefore, it ought to have been vigilant enough to find out whether

the CD was undergoing CIRP and once a public announcement of the CIRP

has been made through newspapers, it would constitute deemed knowledge

on the Appellant and the plea of not being aware of newspaper

pronouncement is not the one which should be available to a commercial

entity.

14. However, the present case pertains to the non-commercial entity like a

homebuyer.

15. In the case of Pooja Mehra (Supra), relied upon by the Respondent,

which was also against the same CD this court had found that there was no

evidence/acceptable material on record of the actual payment of Rs.

50,00,000/- to the CD. In this regard, the observation made by this court in

the said case is captured in para 102 which is reproduced as under:-

"102. The claim of the Appellant is that since approval of Resolution Plan is pending before the Adjudicating Authority,

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its claim can be considered on merits. We have examined this issue in detail basis the facts of the case, wherein the Appellant seeks condonation of 540 days and basis the current position of law. It becomes unsustainable to accede to his request to allow his belated claim to be considered, particularly in the background that there is no acceptable material on record to suggest actual disbursement of Rs.50 lakhs to the Corporate Debtor and more so when the Appellant itself has filed Form - C and not CA raising its claim. There is also inconsistency in the description of the alleged unit being D2-601 or D2-2002 in the buyback agreement and allotment letter."

16. In our considered opinion, the decision in the case of Pooja Mehra

(Supra) is not applicable because in that case it was not even proved that the

Appellant had disbursed the amount in question to the CD whereas in the

present there is no dispute that the Appellant had disbursed the amount after

taking loan from the Bank and the said factum is part of the IM.

17. Thus, keeping in view the totality of circumstances, we are of the

considered opinion that the controversy in hand is covered by the case of

Puneet Kaur (Supra) and therefore, while allowing the present appeal and

setting aside the impugned order, we direct the RP to submit the detail of the

appellant reflected in the record of the CD including their claim to the

resolution applicant on the basis of which the resolution applicant shall

prepare an addendum to the resolution plan which may be placed before the

CoC for consideration. The entire exercise should be completed within a

period of three months from today and the addendum and the minutes of the

CoC at the time of finalizing the resolution plan shall be considered by the

AA at the time of the approval of the resolution plan which is pending

consideration before the AA. The Resolution Professional may also bring to

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the notice of the AA, the order of this date, so that the AA may await the

addendum alongwith the minutes of the CoC which may be considered

alongwith the approval of the resolution plan.

Pending I.As, if any, are hereby closed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

[Mr. Indevar Pandey] Member (Technical)

New Delhi 14th May, 2025 Sheetal

Company Appeal (AT) (Ins) No. 1662 of 2023