Ram Kishan Saraf & Ors vs Narender Kumar Sharma Resolution ...

Company Appeal (AT) (Ins.) No. 1308 of 2022 & I.A. No. 4041, 4435 of 2022 IN THE MATTER OF: Ram Kishan Saraf & Ors. ...Appellants

Versus

Narender Kumar Sharma ...Respondent Resolution Professional of Indirapuram Habitat Centre Pvt. Ltd.

Present: For Appellants: Mr. Shyam Kishan Saraf and Mr. Ram Kishan Saraf (in person) For Respondent: Mr. G P Madaan, Mr. Aditya Madaan, Ms. Aishwarya Adlakha, Advocates for RP Mr. Narender Kumar Sharma, RP.

ORDER

13.03.2023: Heard the Appellant Mr. Shyam Kishan Saraf appearing

in person and Mr. G P Madaan appearing for the Resolution Professional.

This appeal has been filed against the order 22.08.2022 passed by the

Adjudicating Authority by which I.A. No. 4219/2021 in C.P. (IB)- 1397

(PB)/2019 filed by the Appellant has been disposed of giving opportunity to

the appellant to submit documents before the Resolution Professional

seeking the original status of allottees. Adjudicating Authority further

directed the Resolution Professional to pass a reasoned decision and

thereafter liberty to the Applicant to challenge the said decision.

2. The appellant's case in the appeal is that appellant's claims were

verified by the Resolution Professional and subsequently the status of the

appellant was changed from 'allottees' to 'collateral' and on this I.A. No.

Cont'd..../ -2-

4219/2021 was filed by the appellant in which following prayers have been

made:

1. To direct the Resolution Professional to change the status of the Applicants from 'Collateral' to 'Allottees and consider them as Financial Creditors (Real Estate Investors i.e. Allottee) u/s 5(8)(f) of the Code;

2. To determine the rights of the applicants as per the provisions of the I & B Code' 2016;

3. To direct the Resolution Professional to provide Proper signed Valuation Reports of both the valuers as mentioned in IM.

4. To direct the Resolution Professional to provide the Inventory details of CD as on ICD (Insolvency Commencement date) i.e. 22.08.2019 as the same is missing in IM provided by RP.

5. To direct the Resolution Professional to provide the details of Avoidance Applications filed u/s 25(2)(i) r/w Rule 35A of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 with this Hon'ble Tribunal for recovery of Assets lost due to Preferential Transactions, Undervalue Transactions, Extortionate Transactions and Fraudulent Transactions.

6. To pass such other order or orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case.

3. The applications along with other applications filed by other

applicants came for consideration before the Adjudicating Authority, who by

the impugned order has disposed of the said application. It is useful to

extract the following part of the order:

"We have noticed from the charts prepared by RP that the allottees have been shown as allottees in the first instance and thereafter it has been modified as 'collateral, however, there is no reason given

Company Appeal (AT) (Insolvency) No. 1308 of 2022 -3-

by the Resolution Professional as to why the nomenclature has been changed from allottees to collateral".

Before we pass any reasoned order, in the interest of justice each one of these applicants will be given an opportunity to be heard by the Resolution Professional and also would be allowed to submit documents on or before 26.08.2022 stating reasons for seeking the original status of 'allottees'.

After giving them the opportunity of being heard, the Resolution Professional shall pass a reasoned decision by 09.09.2022.

In terms of the above stated directions, these entire applications stand disposed of. Subject to the result of such proceedings, each one of the applicants is given liberty to challenge the decision of the Resolution professional, if aggrieved."

4. The appellants submits that Adjudicating Authority ought to have

disposed of the application on merits instead of directing the appellant to

again approach the Resolution Professional who has no adjudicatory

jurisdiction to decide any lis which has been raised by the appellant in the

application.

5. Mr. G.P. Madaan appearing for the respondent submitted that the

appellant has opportunity to file their documents and despite of two dates

they have not filed any document before the Resolution Professional.

6. We have considered the submission of both the parties and perused

the record.

7. It is well settled that Resolution Professional has no adjudicatory

power and its jurisdiction is only administrative to collate and verify the

claims as per the CIRP Regulation, 2016.

Company Appeal (AT) (Insolvency) No. 1308 of 2022 -4-

8. We are of the view that when the application was filed before the

Adjudicating Authority inviting a decision on the status of the applicant

Adjudicating Authority ought to have decided the application on merit

instead of asking the appellant to file the documents before the Resolution

Professional and directing the Resolution Professional to pass the reasoned

decision. The decision was required to be taken by Adjudicating Authority

itself.

9. We thus are of the view that the impugned order passed by

Adjudicating Authority on 22.08.2022 in I.A. No. 4219/2021 cannot be

sustained and is hereby set aside. The I.A. No. 4219/2021 is revived before

the Adjudicating Authority to be heard and decided on merits by hearing

both the parties.

10. The Appellant has further submitted that approval of resolution plan

is pending before the Adjudicating Authority. In view of the fact that

application for approval of plan is pending it is expected that the

Adjudicating Authority shall decide these applications before deciding the

application for approval of Resolution Professional.

11. The appeal is disposed of accordingly.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical) sa/nn

Company Appeal (AT) (Insolvency) No. 1308 of 2022