Ramson Rodrigues & Ors vs Ashvi Developers Private Limited

(Arising out of the Order dated 25.06.2024 passed by the National Company Law Tribunal, Mumbai Bench, Court 1V in CP (IB) 361 (MB)/ 2024) IN THE MATTER OF:

1. a. Ramson Rodrigues b. Rylan Rodrigues House No. 64, Vakola Village, Behind Shirin Bakery, Santacruz (East) Mumbai - 400 055. ...Appellant No. 1

2. Rajesh Jain Flat No. 102, Hercules, Vasant Galaxy, Bangur Nagar, Goregoan West, Mumbai- 400062. ...Appellant No. 2

3. Murli Khanchandani Pinky General Trading LLC Shop No. 2, AI Fahidi building, AI Souk Al Kabeer, Opp. Grand Nova Hotel, AI Fahidi Street, Bur Dubai, UAE. ...Appellant No. 3

4. Sushma Boob 803/804, Jupiter B Wing, Vasant Galaxy, Bangur Nagar, Goregaon West, Mumbai - 400 090 ...Appellant No. 4

5. Jyoti Vikas Kasat B 1301, 13th Floor, Rustomjee Elanza, Near Inorbit Mall, Malad West, Mumbai - 400 064 ...Appellant No. 5

6. a. Anandkumar Mandhana b. Sheetal Mandhana B-1/501, Jamnotri Tower, Bangur Nagar, Goregoan West, Mumbai- 400104 ...Appellant No. 6 7. a. Rajaram Maheshwari Comp. App. (AT) (Ins.) No. 1640 of 2024

b. Manoj Maheshwari c. Santosh Maheshwari Vasant Galaxy, Jupiter- B, 701-702, Link Road, Bangur Nagar, Goregaon West, Mumbai - 400 104 ...Appellant No. 7

8. a. Ajay Menon b. Shruthi Menon B404, Uranus, Vasant Galaxy, Bangur Nagar, Goregaon West, Mumbai - 400 090 ...Appellant No. 8

9. a. Mahesh Dhanhani b. Asha Dhanjani Flat No-1902, A wing, 19th Floor, Shiv Darshan Towers, Chincholi Bunder Road, Sion Complex, Malad West, Mumbai- 400064 ...Appellant No. 9

10. a. Mahip Goyal b. Shalini Goyal 1403, Tower-1, Dheeraj Gaurav Heights, Off New Link Road, Opp. Infinity Mall, Andheri West, Mumbai - 400 053 ...Appellant No. 10

11. a. Shobha Vipul Amodwala b. Vipul Rameshbhai Amodwala c. Vipul Rameshbhai Amodwala (HUF) Flat No. 601-B, Mercury B Wing, Vasant Valley Galaxy, Bangur N agar, Goregaon West, Mumbai-400 104. ...Appellant No. 11

12. a. Pratik Vinod Biyani b. Bindu Biyani c. Addon Export House Limited 803/804, Jupiter B, Wing, Vasant Galaxy, Bangur Nagar, Goregaon West, Mumbai - 400 090 ...Appellant No. 12

13. Suryanarayan Synthetics Private Limited 6012-6013 Hi Tech Textile Market,

Page 2 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024

Near Anjana Fann, Ring Road, Surat- 394010 ...Appellant No. 13

14. a. Tina Desai b. Swarnalata Desai N-430, Tarapore towers, 2nd floor, Oshiwara, Andheri (W) Mumbai 400053 ...Appellant No. 14

15. a. Rahul Prabhakar Uchil b. Karishma Rahul Uchil 405, Tower 1, Auris Serenity, Malad Kachpada, Near Silver Oaks Restaurant, Malad West, Mumbai 400 064 ...Appellant No. 15

16. a. Sunilkumar A menon b. Karthika Menon B-303, Dev Darshan, Bank of Baroda Building, Station Road, Bhandup West, Mumbai-400078 ...Appellant No. 16

17. a. Reji Parmeshwaran Nair b. Jyoti Reji D8/5, Jal Nidhi, Bangur Nagar, Goregoan West, Mumbai 400090 ...Appellant No. 17

18. a. Manisb Lalchand Beriwal b. Nitu Manish Beriwal Flat No. 172, 17th Floor, Kalpataru Pinnacle, Opposite Inorbit Mall, Goregaon Mulund Link Road. Goregaon (West), Mumbai- 400104 ...Appellant No. 18

19. a. Vasudha Pradeep Chandhan b. Pradeep M. Chandan E/504, Mars CHS Ltd. Vasant Galaxy, Bangur Nagar, Goregaon West, Mumbai - 400 104 ...Appellant No. 18 Versus

Page 3 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024

Ashvi Developers Private Limited 43/11, Raja Bahadur Building Tamarind Lane, Fort Mumbai, Mumbai City- 400 001 ...Respondent Email Id: info@ariisto.com Present For Appellant: Mr. Aditya Dewan, Mr. Shikha Ginodia, Mr. Mohit Bangwal, Advocates.

For Respondents: Mr. Rohit Gupta, Mr. Samarth Chowdhary, Ms. Pracheta Kar, Mustafa Nulwala, Advocates.

JUDGEMENT

(17.09.2025)

NARESH SALECHA, MEMBER (TECHNICAL)

1. The present appeal has been filed by the Appellants i.e. Ramson Rodriques

and Others, who are the Home buyers, under Section 61 of the Insolvency and

Bankruptcy Code, 2016 ('Code') against the Impugned Order dated 25.06.2024

passed by the National Company Law Tribunal, Mumbai Bench ('Adjudicating

Authority') in Company Petition (IB) No. 361 of 2024.

2. Ashvi Developers Pvt. Ltd. is the Respondent herein.

3. The Appellants submitted that they are homebuyers and allottees in the

residential project known as Ariisto Sommet-Residential, promoted by Ashvi

Developers Private Limited (the Respondent) and Atithi Builders and

Constructions Private Limited, collectively referred to as the Promoters. The

Appellants contended that the said Project is registered with the Maharashtra Real

Estate Regulatory Authority (MAHARERA) under registration number

Page 4 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024

P51800009848, comprising a total of 220 flats, out of which 115 flats have been

allotted or booked to respective purchasers, as per details available on the official

MAHARERA website.

4. The Appellants submitted that they collectively represent allottees of 22

flats, constituting 19% of the total allotted flats in the said Project, which satisfies

the threshold under the second proviso to Section 7(1) of the Code, for initiating

the CIRP against the Respondent.

5. The Appellants submitted that for Appellants Nos. 1 to 13, the Promoters

entered into Agreements for Sale (AFS) for their respective flats, wherein the

Promoters agreed to hand over possession on or before 30.06.2019, with a grace

period of six months, extending the deadline to 31.12.2019. The Appellants

contended that the Promoters failed to complete the construction and deliver

possession within this stipulated time, despite raising Rs. 49,45,02,644/- from

these Appellants. The Appellants submitted that Appellant No. 10 was

additionally allotted Flat No. 3505 vide an Allotment Letter dated 05.01.2017,

with the same possession deadline of 31.12.2019 after the grace period. The

Appellants contended that the Promoters similarly failed to deliver possession of

this flat, further evidencing their default and disregard for contractual obligations.

6. The Appellants submitted that for Appellants Nos. 14 to 17, the Promoters

entered into AFS for their respective flats, with possession agreed by 30.06.2019

and extended to 31.12.2019. The Appellants contended that the Promoters failed

to meet this deadline, leading these Appellants to file complaints with

Page 5 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024

MAHARERA under the Real Estate (Regulation and Development) Act, 2016

(RERA).

7. The Appellants submitted that Appellant No. 18 was issued an Allotment

Letter dated 20.12.2016 for Flat No. 2405, with possession due by 30.06.2019

and a grace period of twelve months, extending to 30.06.2020. The Appellants

contended that the Promoters failed to deliver possession, prompting Appellant

No. 18 to also file a complaint with MAHARERA.

8. The Appellants submitted that on 28.03.2022, MAHARERA passed a

common order in the complaints filed by Appellants Nos. 14 to 18 (Complaint

Nos. CC006000000192131, CC006000000089922, CC006000000195175,

CC006000000192376, and CC006000000141123), directing the Promoters to

refund the entire amounts paid, along with interest at the State Bank of India's

Highest Marginal Cost Lending Rate (MCLR) plus 2%, from the dates of

payments until actual realization. The Appellants contended that as on

31.08.2023, Rs. 29,13,80,133/- remains due and payable to these Appellants, who

continue to be allottees and financial creditors as a class under the Code.

9. The Appellants submitted that for Appellant No. 19, the Promoters

received Rs. 31,00,000/- for Flat No. 2202, confirmed by a Booking Slip dated

02.10.2014 and a receipt dated 15.12.2014. The Appellants contended that due to

lack of construction progress, Appellant No. 19 requested cancellation and refund

vide letter dated 09.02.2016, which was acknowledged by the Respondent on

Page 6 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024

21.01.2019, but no refund has been made, rendering Appellant No. 19 also as an

allottee and financial creditor.

10. The Appellants submitted that they have incurred additional financial

burdens, including payments towards statutory dues such as stamp duty,

registration charges, and indirect taxes. The Appellants contended that Appellants

Nos. 3 to 18 are continuing to pay instalments to banks or financial institutions

for loans availed to purchase their flats. The Appellants submitted that Appellants

Nos. 3, 4, 5, 7, 8, 9, 10, 12, 13, 15, 16, and 18 availed loans under interest

subvention schemes, with Tripartite Agreements obligating the Promoters to pay

pre-EMI interest. The Appellants contended that the Promoters' failure to honour

this obligation forced these Appellants to bear the interest costs themselves.

11. The Appellants submitted that they filed Company Petition (IB) No. 361

of 2024 under Section 7(1) of the Code on 08.11.2023, claiming a financial debt

of Rs. 1,40,77,41,654/- in default. The Appellants contended that the petition was

listed on 04.06.2024, adjourned to 25.06.2024, and dismissed vide the Impugned

Order dated 25.06.2024 without even issuing notice to the Respondent.

12. The Appellants submitted that the Adjudicating Authority erred in

dismissing the petition as barred by limitation, considering the default date as

31.12.2019. The Appellants contended that, per the Hon'ble Supreme Court's

order in Suo Moto Writ Petition (C) No. 3 of 2020, the period from 15.03.2020

to 28.02.2022 is excluded for limitation purposes, extending the deadline to

17.12.2024, making the filing on 08.11.2023 timely.

Page 7 of 17

Comp. App. (AT) (Ins.) No. 1640 of 2024

13. The Appellants submitted that the Adjudicating Authority misinterpreted

the MAHARERA order dated 28.03.2022 as rendering the petition premature for

Appellants Nos. 14 to 18. The Appellants submitted that this order did not

extinguish their rights as allottees, as it preserved their lien on the flats until full

refund with interest, and they remain financial creditors under Section 5(8) of the

Code. The Appellants submitted that the Adjudicating Authority overlooked the

facts concerning Appellant No. 19, including the acknowledgment of receipt and

failure to refund, confirming ongoing allottee status.

14. The Appellants submitted that the Respondent's financial difficulties are

evident from project delays, litigation with creditors, non-payment to suppliers,

and RERA violations as per the MAHARERA order. The Appellants contended

that these factors heighten risks to their investments and justify CIRP initiation.

The Appellants submitted that the Impugned Order violates principles of natural

justice by dismissing the petition without affording them an opportunity to

address limitation and prematurity issues, and without notice to the Respondent.

15. Concluding their arguments, the Appellants requested this Appellate

Tribunal to set aside the Impugned Order and to admit the Company Petition and

initiate CIRP against the Respondent.

16. Per contra, the Respondent denied the averments made by the Appellants.

17. The Respondent submitted that the claims of Appellants Nos. 1 to 13 are

time-barred, as their purported date of default is 31.12.2019, and the petition was

filed on 08.11.2023, more than three years later. The Respondent contended that

Page 8 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024

the Adjudicating Authority correctly dismissed the petition on this ground, as it

is barred by limitation under the Code. The Respondent submitted that there has

been no admission of liability or monies owed to Appellants Nos. 1 to 13,

rendering their claims expired under the limitation period. The Respondent

contended that without such admission, the default relied upon cannot sustain the

petition.

18. The Respondent submitted that the claims of Appellants Nos. 14 to 18 arise

from MAHARERA order dated 28.03.2022, which directed refund of amounts

paid towards flat considerations. The Respondent submitted that the petition, filed

on 08.11.2023, precedes the refund obligation deadline under the MAHARERA

order. The Respondent contended that no cause of action had arisen for these

Appellants at the filing date, making the petition premature. The Respondent

submitted that Appellants Nos. 14 to 18, having availed the alternative remedy

under RERA and obtained a favourable order, cannot pursue the same grievance

under the Code, as it constitutes duplicity of proceedings.

19. The Respondent submitted that Appellant No. 19 lacks locus standi to file

the petition or join the appeal, as no flat was allotted, and only a booking slip

dated 02.10.2014 was issued, which was cancelled by the Appellant on

09.02.2016.

20. The Respondent submitted that the petition fails to meet the minimum

threshold under Section 7 of the Code, requiring at least 10% of the allottees in

the real estate project. The Respondent contended that with 115 total allottees, at

Page 9 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024

least 12 are needed, but the invalid claims of Appellants Nos. 1 to 19 reduce the

number below this requirement. The Respondent submitted that even assuming

the claims of Appellants Nos. 14 to 18 are not premature, the overall petition still

fails the 10% threshold due to the time-barred and locus-deficient claims of the

others.

21. The Respondent submitted that the Adjudicating Authority dismissed the

petition without issuing notice, as it was ex facie erroneous and baseless. The

Respondent contended that the appeal lacks legal substance, with no facts or

contentions meriting acceptance.

22. The Respondent conceded that if this Appellate Tribunal finds the

impugned order erroneous, the matter should be remanded to the Adjudicating

Authority for fresh consideration. The Respondent also submitted that this would

allow the Respondent an opportunity to file a reply and place relevant facts and

documents on record, as the original dismissal occurred without such hearing.

The Respondent requested this Appellate Tribunal to dismiss the present appeal

in limine as non-maintainable and baseless and alternatively, remand the matter

to the Adjudicating Authority for adjudication after affording the Respondent an

opportunity to respond.

Page 10 of 17

Comp. App. (AT) (Ins.) No. 1640 of 2024

Findings

23. At this stage, we would consider the issue based on limitation and

threshold, which the Adjudicating Authority dismissed the section 7 Application

of the Appellants for initiating corporate insolvency resolution process against

the corporate debtor.

24. We note that as per Section 7(1) of the Code, which reads as under: -

"Initiation of corporate insolvency resolution process by financial creditor- A financial creditor either by itself or jointly with 1[other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Government,] may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred

[Provided that for the financial creditors, referred to in clauses

(a) and (b) of sub-section (6A) of section 21, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent. of the total number of such creditors in the same class, whichever is less:

Provided further that for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten

Page 11 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024

per cent. of the total number of such allottees under the same real estate project, whichever is less:

Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first and second provisos and has not been admitted by the Adjudicating Authority before the commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, such application shall be modified to comply with the requirements of the first or second proviso within thirty days of the commencement of the said Act, failing which the application shall be deemed to be withdrawn before its admission."

(Emphasis Supplied)

25. We note that there are in total 115 (out of 220) flats which are allotted. Out

of these 115 flats, the homebuyers/ allottees of 22 flats i.e., 19% of the total flats

allotted, filed the Company Petition under section 7(1) of the Code. We further

note that the Adjudicating Authority dismissed the said Company Petition on the

grounds of limitation and premature preference of the Company Petition

allegedly without giving proper opportunity to the Appellants to show how the

said Company Petition is within limitation and not premature, without due

consideration of the evidence on record brought out by the Appellants before the

Adjudicating Authority.

26. At the outset, we note that the Appellants entered into AFS for their

respective flats with promoters who promised to give possession of flats by

30.06.2019, with a six-month grace period extending the deadline to 31.12.2019.

Page 12 of 17

Comp. App. (AT) (Ins.) No. 1640 of 2024

However, the Promoters failed to complete construction and deliver possession

by this date. We take into consideration that the Adjudicating Authority dismissed

petition filed by the Appellants as time-barred, based on the default date of

31.12.2019 for Appellant No. 1 to Appellant No. 13. Consequently, the

Adjudicating Authority held that the Appellants do not meet the minimum

threshold as per Section 7 (1) of the Code. Needless to add, that the Adjudicating

Authority also did not accept the claims of remaining Appellant No. 14 to

Appellant No. 19 on other grounds.

27. It is significant to take into consideration the Hon'ble Supreme Court, in

Suo Moto Writ Petition (c) No. 3 of 2020 that clearly excludes the period from

15th March 2020, till 28th February 2022, while calculating the limitation period

for initiating proceedings. The Hon'ble Supreme Court observed that;

"It is further clarified that the period from 15.03.2020 till

28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings."

(Emphasis Supplied)

28. We note that even as per the Impugned Order, the date of default by the

Respondent is on 31.12.2019 based on the AFS. Thus, considering the judgement

Page 13 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024

of the Hon'ble Supreme Court, the limitation period for filing the Company

Petition will end on 17.12.2024, as the section 7 Application was filed by the

Appellants on 08.11.2023, thus the Company Petition was filed prior to the end

of limitation on 17.12.2024. Thus, we have no hesitation to hold that the

Adjudicating Authority, erred in dismissing the Company Petition on the ground

of limitation, without considering the judgement passed by the Hon'ble Supreme

Court Judgement, as discussed above.

29. Now, we will examine the claim of the Appellants 14 to 18. We note that

the MAHARERA Order upheld the right of Appellant Nos. 14 to 18 to realize

interest on the amounts to be paid by the Respondent to the Appellant, which is

clarified as below;

"22...

e ... Till the actual realisation of the said amount with interest to the complainants. the complainants shall have lien on the said flats."

(Emphasis Supplied) Thus, it becomes clear that the MAHARERA Order did not extinguish or cause

a waiver of the rights of the Appellants Nos. 14-18 to be allottees in the said

Project. The Appellant Nos. 14 to 18 continue to be Financial Creditors in terms

of Section 5(8) of the Code, 2016 since the amounts paid by Appellant 14 to 18

to the Respondent constitute a financial debt.

30. We will now consider the case of Appellant No. 19. We find that the

Adjudicating Authority did not consider that the Promoters issued Booking Slip

Page 14 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024

dated 02.10.2014, to Appellant No. 19 confirming the allotment of Flat No. 2202.

We further note that on 21.01.2019, the Respondent acknowledged receipt of Rs.

31,00,000/- from Appellant No. 19. It is only on failure of Respondent to hand

over Flat No. 2202, the Appellant No. 19, by a letter dated 09.02.2016, requested

the Respondent to cancel the booking for Flat No. 2022 and sought refund of

amount paid, which the Respondent has failed to refund the amount to Appellant

No. 19, who consequently remains an allottee in the project. The Adjudicating

Authority ignored this relevant fact. This finding of the Adjudicating Authority

is not correct on this account.

31. We also take into consideration the submissions made by the Respondent

in their reply as well as in written submission before us, which reads as under: -

"The Appeal is liable to be partly allowed and remanded back to the Hon'ble NCLT for consideration only for Appellant No. 1 to 13, as their claim is well within limitation, on account of the Order dated 10 January 2022 passed by the Hon'ble Supreme Court in Suo Moto Writ Petition (C) No. 3 of 2020, whereby the period from 15 March 2020 till 28 February 2022 was excluded for the purposes of limitation prescribed under the general law or special laws."

"The Impugned Order was passed without even issuing a notice to this Respondent vis-à-vis the Respondent was not given an opportunity to put forth his case before the Hon'ble NCLT. On this count alone, the present Appeal is liable to be partly allowed and remanded back to the Hon'ble NCLT for Appellant

Page 15 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024

No. 1 to 13 (for hearing the matter afresh) whilst dismissing the Appeal against Appellant No. 14 to 19."

"Without prejudice to what is stated above, it is submitted that the Petition has been dismissed by the Hon'ble NCLT without issuing notice to the Respondent as the Petition was ex-facie erroneous. In the event this Hon'ble Tribunal is of the opinion that the Impugned Order is erroneous, then this Hon'ble Tribunal be pleased to remand the matter back to the Hon'ble NCLT, so as to give the Respondent an opportunity to plead its case by placing on record relevant and important facts/documents, as the Impugned Order was passed without giving the Respondent an opportunity of filing its Reply/being heard."

(Emphasis Supplied)

32. Thus, even the Respondent, while contradicting claims of Appellant No.

14 to Appellant No. 19, fairly conceded that Appellant No. 1 to Appellant No. 13

are indeed covered in the ratio of the Suo moto case (supra) and are not barred by

limitation and also meet the threshold as per Section 7 (1) of the Code. The

Respondent also agreed that the case needs to be remanded back to the

Adjudicating Authority.

33. The Appeal succeeds. The Impugned Order is set aside and original

Company Petition filed by the Appellants, bearing Company Petition (IB) No.

361 of 2024 before the Adjudicating Authority is restored back. Both parties are

Page 16 of 17 Comp. App. (AT) (Ins.) No. 1640 of 2024

directed to appear before the Adjudicating Authority on 26.09.2025. No cost.

I.A., if any, are closed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Justice Mohammad Faiz Alam Khan] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

Sim

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