Samyak Projects Pvt Ltd vs M/S Ansal Properties And ...

IN THE MATTER OF: Samyak Projects Pvt. Ltd. ...Appellant

Vs.

Ansal Properties and Infrastructure & Ors. ... Respondents

Present: For Appellant: Mr. Vivek Kohli, Sr. Adv. with Mr. Juvas Rawal, Mr. Sandeep Bhuraria & Monish Surendran, Advocates For Respondent: Mr. Malak Bhatt, Neeha Nagpal, Mr. Rajat Bector, Advocates for R1. Mr. KK Singh, Ms. Nidhi Jha, Advocates for R2 to 127.

ORDER

(Virtual Mode)

03.06.2022: This appeal is directed against the order dated 18.04.2022

passed by the Adjudicating Authority (National Company Law Tribunal, New

Delhi, Bench-II) in I.A No. 5502 of 2021 and I.A. No. 5541 of 2021 in Company

Petition (IB) No. 330/ND/2021.

In brief, an application under Section 7 of the Insolvency and

Bankruptcy Code, 2016 (in short 'Code') is filed by the Financial Creditors

against the Corporate Debtor before the Adjudicating Authority. So far, the

said application has not been admitted, therefore, consequential proceedings

have not been initiated.

The Appellant had filed two applications i.e. I.A. No. 5502 of 2021 and

I.A. No. 5541 of 2021, in order to get impleaded as a necessary party in the

Company Petition (IB) No. 330/ND/2021, and on the same premise, filed I.A.

No. 5541 of 2021 which is basically a repetation.

Company Appeal (AT) (Ins) No. 632 of 2022 2

Be that as it may, the application has been rejected by the Adjudicating

Authority, inter alia, on the ground that the Applicant is neither a necessary

party because it is not a Financial Creditor or Corporate Debtor nor the

application filed under Section 7 of the Code has been admitted so far.

Therefore, the same has been dismissed on the ground of being pre-mature.

Counsel appearing on behalf of the Appellant has submitted that the

Appellant is the owner of the land measuring 115 Kanal - 6 Marla (14.412

acres) situated in Mewka, Sector 91, Gurgaon, which is being developed as a

project in the name and style of 'The Fern Hill'. The Respondent No. 2 to 127

are the allottees of the project, who have filed the application under Section

7 of the Code before the Adjudicating Authority to initiate the Corporate

Insolvency Resolution Process (in short 'CIRP').

It is submitted that an MOU was executed between the Appellant and

the Developer on the basis of which the Appellant was to take 34.5% of the

proceeds from the total sale of the area of the project. It is further submitted

that an addendum of MOU was executed on 03.02.2020, as per which, the

Appellant was to take 45% of the proceeds from the sale of the area of the

project, therefore, it is submitted that in case, the CIRP are initiated then the

interest of the present Appellant shall be adversely effected.

We have heard Counsel for the Appellant and perused the record.

The question as to whether the Appellant would fall within the

definition of Financial Creditor or Corporate Debtor or even can intervene as

an intervenor in the pending petition filed under Section 7 of the Code shall

be decided only when it shall be considered by the Adjudicating Authority

Company Appeal (AT) (Ins) No. 632 of 2022 3

after the admission of the application filed under Section 7 of the Code, which

has been dismissed at this stage only on the ground of being pre-mature.

We have found that there is no error in the order passed by the

Adjudicating Authority and therefore, the present Appeal is hereby dismissed.

No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Dr. Ashok Kumar Mishra] Member (Technical)

Sheetal/md/rr

Company Appeal (AT) (Ins) No. 632 of 2022