Rajesh Khanna & Ors. (Through Their ... vs Vardhman Infradevelopers Pvt. Ltd

IN THE MATTER OF: Rajesh Khanna & Ors. ...Appellants Versus Vardhman Infradevelopers Pvt. Ltd. ...Respondent

Present: For Appellants : Mr. Sunil Fernandes, Sr. Advocate with Mr. Milan Singh Negi, Ms. Jayshree Choudhary, Ms. Diksha Dadu and Mr. Nikhil Kumar Jha, Advocates.

For Respondent : Mr. Gaurav Mitra, Sr. Advocate with Mr. Sambit Nanda, Ms. Samaya Khanna and Ms. Aishwarya, Advocates.

Mr. Ashish Makhija and Mr. Deep Bisht, Advocate for R-1.

Mr. Arvind Nayar, Sr. Advocate with Mr. Lokesh Bhola and Ms. Sanjana Manchanda, Advocates for R-5.

Mr. Saket Sikri, Advocate for R-6.

ORDER

(Hybrid Mode)

25.07.2024 Heard Counsel for the Appellant as well as Counsel

appearing for the Respondent.

2. This appeal has been filed against an order dated 15.12.2023, by which

Order Adjudicating Authority has rejected Application under Section 7 filed

by the Appellant on the ground that threshold under Section 7(1) of the

Insolvency and Bankruptcy Code, 2016, (for short `The Code') is not complete. Adjudicating Authority has noticed that Application was filed by only 83

Applicants which means that threshold was not complete.

3. Learned Counsel for the Appellant challenging the Order contends that

the Annexure A-3 to the Application which was computation of the Financial

Debt of the Corporate Debtor clearly mentioned the number of Applicant as

83 however, number of units were mentioned as 209 and the relevant criteria

is the number of units as per the Judgment of the Hon'ble Supreme Court in

the matter of `Manish Kumar' Vs. `Union of India & Anr.', reported in

(2021) 5 SCC and this Tribunal in the matter of `Harinder Bashista' Vs.

`Sanjib Kumar & Ors.' in Comp. App. (AT) (Ins.) No. 197 of 2023.

4. It is submitted that the Adjudicating Authority committed any error in

holding that the Application does not comply with Section 7(1) proviso.

5. Mr. Gaurav Mitra appearing for the Respondent submits that since no

Notice was issued to the Respondent, hence they could not file objection that

Application does not fulfil the threshold. It is submitted that the figure of 209

of allottees is an incorrect figure and they are not meeting the threshold.

6. Be that as it may, Adjudicating Authority has only looked into the

number of Applicants and rejected the Application, we are of the view that

Order deserves to be set aside and the Application filed by the Appellant be

revived before the Adjudicating Authority for fresh consideration. It shall be

open for the Respondent to file their Reply/Objections under Section 7

Application including objections regarding maintainability.

With these observations, we dispose of the Appeal.

Comp. App. (AT) (Ins.) No. 285 of 2024 2 of 3 Both the Parties are at liberty to file a copy of this Order and pray for

fixation of the date before the Adjudicating Authority for further

consideration.

[Justice Ashok Bhushan] Chairperson

[Arun Baroka] Member (Technical) himanshu/nn

Comp. App. (AT) (Ins.) No. 285 of 2024 3 of 3