Sneha Kore vs Arun Kapoor - Resolution Professional ...

(Arising out of the Order dated 24.04.2024 passed by the National Company Law Tribunal, Division Bench, Court No. II, Mumbai in IA No. 4154 of 2023 in Company Petition (IB) No. 2517(MB) of 2018

1. Ms. Sneha Kore Address: Plot No. 1963,1964, Savitri Nivas, Nivrutti Colony, Rammandir Javal, Waranangar, Panhala, Kolhapur, Maharashtra- 416113 Email ID : nipunkore@gmail.com ...Appellant No. 1

2. Mr. Nipun Kore Address: Plot No. 1963,1964, Savitri Nivas, Nivrutti Colony, Rammandir Javal, Waranangar, Panhala, Kolhapur, Maharashtra- 416113 Email ID : nipunkore@gmail.com ...Appellant No. 2

Versus Mr. Arun Kapoor Resolution Professional of Monarch Brookefields LLP Address: G-601, Army Co-operative Housing Society, Sector- 09, Nerul (East), Navi Mumbai, Maharashtra-400706 Email ID : arun.kapoor58@yahoo.in ...Respondent Present For Appellants: Mr. Aditya Dewan, Mr. Gautam Singh & Mr. Uday Raj, Advocates.

For Respondent: Mr. Abhijeet Sinha, Sr. Advocate along with Mr. Zeeshan Hashmi, Ms. Mitali Yadav & Mr. Saurav Sapra, for R-1.

Mr. Aman Kacheria, Ms. Mahima Shah & Mr. Zaki Ansari, for R-2/ SRA.

With

Comp. App. (AT) (Ins) No. 531 of 2024 & I.A. No. 1879 of 2024, 4645 of 2025

(Arising out of the Order dated 02.02.2024 passed by the National Company Law Tribunal, Division Bench, Court No. II, Mumbai in IA No. 3987 of 2023 in Company Petition (IB) No. 2517(MB) of 2018

Mr. Rajan Shivkumar Mangave Address: 1141 E Ward, Sykes Extension, Kolhapur, Maharashtra- 4160013 Email ID : shrikrupa.engg@gmail.com ...Appellant

Versus Mr. Arun Kapoor Resolution Professional of Monarch Brookefields LLP Address: G-601, Army Co-operative Housing Society, Sector- 09, Nerul (East), Navi Mumbai, Maharashtra-400706 Email ID : arun.kapoor58@yahoo.in ...Respondent

Present For Appellants: Mr. Aditya Dewan, Mr. Gautam Singh & Mr. Uday Raj, Advocates.

Page 2 of 26 For Respondent: Mr. Abhijeet Sinha, Sr. Advocate along with Mr. Zeeshan Hashmi, Ms. Mitali Yadav & Mr. Saurav Sapra, for R-1.

Mr. Aman Kacheria, Ms. Mahima Shah & Mr. Zaki Ansari, for R-2/ SRA.

JUDGEMENT

( 17.09.2025)

NARESH SALECHA, MEMBER (TECHNICAL)

1. There are two appeals before us bearing Comp. App. (AT) (Ins) No. 1169

of 2024 comprising of Sneha Kore and Nipun Kore as Appellants, and Comp.

App. (AT) (Ins) No. 531 of 2024 comprising Ranjan Shivkumar Mangave as the

Appellant. We are taking up both the appeals together and referring to them as

"Appellants". The Appeal has been filed under Section 61 of the Insolvency and

Bankruptcy Code, 2016 ('Code') against the Impugned Order dated 24.04.2024

for Comp. App. (AT) (Ins) No. 1169 of 2024 and 02.02.2024 for Comp. App.

(AT) (Ins) No. 531 of 2024, passed by the National Company Law Tribunal,

Division Bench, Court No. II, Mumbai ('Adjudicating Authority') in IA No.

4154 of 2023 and IA No. 3987 of 2023 in Company Petition (IB) No. 2517(MB)

of 2018.

Mr. Arun Kapoor, who is the Resolution Professional of Monarch Brookfields

LLP, is the Respondent No. 1 herein.

Planet Builders and Developers, who is the Successful Resolution Applicant, is

the Respondent No. 2 herein.

Page 3 of 26

2. The Appellants submitted that they entered into an Agreement for Sale in

January 2014 with the Corporate Debtor for the purchase of Flat No. 1104 and

Flat No. 1105 in the Arizona wing of the project developed by Monarch

Brookfields LLP in Navi Mumbai, measuring 55.246 square meters plus a terrace

area of 4.185 square meters on the 11th floor, inclusive of a 4-wheeler parking

space.

3. The Corporate Debtor failed to deliver possession of the flat, prompting

the Appellants to institute a consumer complaint, designated as CC/18/837 and

CC/18/838, before the State Consumer Disputes Redressal Commission,

Maharashtra, Mumbai and the State Consumer Disputes Redressal Commission,

vide its order dated 23.09.2019, granted relief in their favour by directing the

Corporate Debtor to provide possession of the specified flat or, at the Appellant's

discretion, possession of an equivalent flat of the same dimensions in the same

locality, accompanied by execution of requisite documents, within two months

from the date of the order. In the alternative, at the Appellant's election, the

Corporate Debtor was mandated to refund Rs. 45,85,750/- along with interest at

15% per annum calculated from 17.01.2013, until full realization.

4. The Appellants averred that they repeatedly urged the Corporate Debtor to

adhere to these directives, yet the latter persistently neglected to comply. The

Appellants submitted that, subsequent to the consumer forum's order but prior to

its enforcement, the Adjudicating Authority, through its order dated 27.09.2019,

in C.P. (IB)-2517/MB/2018 under Section 7 of the Code, commenced the

Page 4 of 26 Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor

and designated Mr. S. Gopalkrishnan as the Interim Resolution Professional.

5. The Appellants submitted that following the CIRP initiation, a public

announcement in Form A was issued on 24.11.2019--a Sunday--in the Mumbai

editions of the Financial Express (an English newspaper with circulation of

approximately 45,000 copies as per Audit Bureau of Circulations) and Mumbai

Lakshadweep (a regional language newspaper with circulation of approximately

28,000 copies as per Audit Bureau of Circulations), setting 07.12.2019, as the

deadline for claim submissions. The Appellants contended that they remained

unaware of the CIRP commencement and the public announcement due to

inherent deficiencies in its dissemination, including its publication on a non-

business day in editions limited to Mumbai while they reside in Kolhapur. The

public announcement's appearance in newspapers lacking the requisite wide

circulation as stipulated under sub-Regulation 2(b)(i) of Regulation 6 of the CIRP

Regulations, 2016, further contributed to their lack of knowledge.

6. The Appellants submitted that it was only in August 2023 that they learned

of the ongoing CIRP and the necessity to submit a proof of claim under the Code

and regulations, whereupon they filed Form CA electronically via email on

25.08.2023, with the Respondent No. 1.

7. The Appellants submitted that the Respondent No. 1, in its email response

dated 28.08.2023, summarily rejected the claim on the grounds that the resolution

plan had already been approved by the Committee of Creditors (CoC) and an

Page 5 of 26 application for its approval was pending before the Adjudicating Authority. The

Appellant submitted that due to this rejection, the Appellants instituted IA

3987/2023 and IA 4154/2023 seeking, inter alia, directions to admit their claim,

nullify the rejection order, incorporate the claims into the pending resolution plan.

The Appellants submitted that in reply, the Respondent No. 1, through IA

4154/2023 and IA 3987/2023, filed an affidavit asserting that the claim was

lodged post-CoC approval of the plan; that the public announcement had been

adequately published in the aforementioned newspapers and on the Corporate

Debtor's website; that the Information Memorandum (IM) prepared by the

erstwhile Resolution Professional warranted no inclusion of the Appellant's

claim; and that the Appellant's pleas contravened the precedents in M/s RPS

Infrastructure Ltd. v. Mukul Kumar [(2021 SCC OnLine SC 3523)] and

Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta

[(2020) 8 SCC 534].

8. The Appellants contended that the Respondent's averments were

fundamentally flawed, as it was contravention of Section 15 of the Code and

Regulation 6 of the CIRP Regulations by utilizing newspapers without wide

circulation.

9. The Appellants submitted that no verifiable website existed for the

Corporate Debtor, rendering the Respondent's claim of uploading thereon

untenable and unsupported by any domain reference. The consumer forum's order

dated 23.09.2019, predating CIRP initiation, crystallized the debt, imposing a

Page 6 of 26 duty on the Corporate Debtor and the Resolution Professional to reflect this

liability in the IM under Section 29 of the Code read with Regulation 36 of the

CIRP Regulations, thereby contradicting the Respondent's disclaimer regarding

the erstwhile professional's role and underscoring the obligation to furnish

precise, current details of the Corporate Debtor's obligations. The cited Supreme

Court judgments by the Resolution Professional were inapposite, as they did not

address non-compliance in public announcement dissemination, particularly the

failure to use widely circulated newspapers or the IBBI website, unlike the instant

scenario where the Appellants, residents of Kolhapur, distant from the Corporate

Debtor's Mumbai operations, suffered delay solely due to the Respondent's

procedural lapses.

10. The Appellants submitted that the Adjudicating Authority, vide its order

dated 02.02.2024 in IA 3987/2023 and 24.04.2024 in IA 4154/2023, erroneously

dismissed their I.A.'s disregarding these contextual nuances and deeming the

belated claim inadmissible, thereby perpetuating an injustice. The Appellants

submitted that the Adjudicating Authority manifestly erred in overlooking the

public announcement's publication in newspapers deficient in wide circulation,

in direct violation of the mandatory prescriptions under the Code and CIRP

Regulations, which vitiated the notice process and deprived potential claimants

like the Appellants of fair opportunity. The Appellants contended that the

Adjudicating Authority neglected to consider the non-compliance with sub-

clause 2(iii) of Regulation 6 of the CIRP Regulations, whereby the public

Page 7 of 26 announcement in Form A was not uploaded on the IBBI's official website, further

compromising the transparency and accessibility essential to the insolvency

framework. The Appellants further submitted that the Adjudicating Authority

failed to appreciate the non-existence of any website for the Corporate Debtor,

rendering the Respondent's assertion of uploading the announcement thereon not

only misleading but patently false, as no evidence of such a domain was adduced,

thereby undermining the integrity of the claim's invitation process.

11. The Appellants contended that the Adjudicating Authority did not

recognize that the Appellants could not have reasonably anticipated or acquired

knowledge of the CIRP initiation owing to the Respondent's lapses in adhering to

the statutory modalities for public announcement under the Code and CIRP

Regulations, which constituted a fundamental breach warranting condonation of

delay.

12. The Appellants submitted that the Adjudicating Authority's observation

imputing deemed knowledge to the Appellants and insisting on timely filing

despite evident publication deficiencies was perverse, as it absolved the

Respondent No. 1 of accountability for procedural non-conformities that directly

impeded the Appellant's participation. The Appellants contended that the

Adjudicating Authority erred in attributing the delay in claim submission to the

Appellants, whereas such tardiness was unequivocally attributable to the

Respondent No. 1 shortcomings, thereby necessitating equitable intervention to

prevent miscarriage of justice.

Page 8 of 26

13. The Appellants contended that the Adjudicating Authority failed to

consider the crystallization of the Appellant's debt through the State Consumer

Disputes Redressal Commission's order dated 23.11.2019, which established an

enforceable debt predating CIRP, entitling the Appellant's inclusion as creditors.

14. The Appellants submitted that the Adjudicating Authority erred in

disregarding the authoritative precedent in Puneet Kaur v. KV Developers Pvt.

Ltd. [(2022 SCC OnLine NCLAT 245)], which mandates the inclusion of

liabilities pertaining to homebuyers who have not yet submitted claims, thereby

affirming the existence and enforceability of such obligations in the IM.

15. The Appellants submitted that the Adjudicating Authority's reliance on M/s

RPS Infrastructure Ltd. v. Mukul Kumar [(2021 SCC OnLine SC 3523)] and

Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta

[(2020) 8 SCC 534] was misconceived and inapplicable, as these rulings do not

contemplate or excuse the Resolution Professional's non-adherence to public

announcement norms, including the use of newspapers with wide circulation and

mandatory IBBI website upload, which are pivotal to the factual matrix herein.

16. Concluding their arguments, the Appellants requested this Appellate

Tribunal to set aside the Impugned Order and allow their appeals.

17. Per contra, the Respondent No.1 denied all averments made by the

Appellants as false and misleading.

18. The Respondent No.1 submitted that he is the Substituted Resolution

Professional appointed in place of the erstwhile Resolution Professional to

Page 9 of 26 continue the CIRP of M/s Monarch Brookfields LLP (Corporate Debtor), initiated

vide order dated 27.09.2019 passed by the Adjudicating Authority in C.P. (I.B.)

No. 2517/MB/2018.

19. The Respondent No.1 submitted that the erstwhile Resolution Professional

duly complied with all applicable regulations, including issuing a public

announcement in Form A on 24.11.2019 under Regulation 6 of the IBBI

(Insolvency Resolution Process for Corporate Persons) Regulations, 2016, which

was uploaded on the IBBI website. The Respondent No.1 contended that, in

compliance with Regulation 6 of the aforesaid Regulations, the public

announcement was also published in one English newspaper (Financial Express)

and one local newspaper (Mumbai Lakshadweep) on 24.11.2019, both having

wide circulation in Mumbai, where the Corporate Debtor's registered office is

located.

20. The Respondent No.1 submitted that, after verifying and collating claims,

the erstwhile Resolution Professional constituted the CoC and conducted various

meetings thereof. The Respondent No.1 further submitted that during the 13th

CoC meeting held on 19.11.2021, the Resolution Plan submitted by Planet

Builders and Developers was unanimously adopted by the CoC exercising its

commercial wisdom, following which the Respondent No.1 filed I.A. No.

70/2022 before Adjudicating Authority for approval of the Resolution Plan.

21. The Respondent No.1 submitted that the Appellants filed their claims on

25.08.2023, more than two years after the CoC's approval of the Resolution Plan

Page 10 of 26 and during the pendency of the approval application. The Respondent No. 1

stated that the Appellants' claim were rejected as time-barred; as the Respondent

No.1, being the Resolution Professional, could not condone delay beyond the

statutory period under the Code. The Respondent No. 1 submitted that no

provision exists under the Code for the Resolution Professional/ Respondent No.

1 to condone such gross delay, especially post-approval of the Resolution Plan

by the Adjudicating Authority.

22. The Respondent No.1 submitted that it is trite law that a successful

Resolution Applicant cannot be faced with undecided claims after acceptance of

the Resolution Plan, as this would introduce uncertainty in payable amounts and

amount to a hydra head popping up. It is the case of the Respondent No. 1 that

all claims need be submitted to and decided by the Resolution Professional to

enable a prospective Resolution Applicant to know exactly what is payable for

taking over the Corporate Debtor's business.

23. The Respondent No.1 further submitted that mere non-approval of the plan

by the Adjudicating Authority does not permit the plan to go back and forth,

rendering the CIRP an endless process, which could encourage similar belated

claims and result in reopening the entire issue, thus admitting the Appellant's

claims at this stage would be anathema to the Code's provisions.

24. The Respondent No.1 submitted that, as on the CIRP initiation date, the

sanctioned plan by CIDCO permitted FSI of 1.0, stilt + 10 floors, and 232

residential flats, with the 10th floor built-up area at approx. 765 sq. mtrs.; thus,

Page 11 of 26 the Subject Flat on the 11th floor is illegal and not in terms with the revised

sanction plan. The Respondent No.1 submitted that the Subject Flats are illegal

and not regularizable, rendering grant of the units impossible to perform; being

an illegal construction, the Appellants claims are untenable.

25. The Respondent No.1 submitted that, as per the approved Resolution Plan,

homebuyers' claims are bifurcated into three categories: (i) flats in accordance

with the revised sanction plan; (ii) flats with multiple bookings; and (iii) flats not

authorized per the revised sanction plan dated 03.02.2012, with the third category

entitled to 25% of admitted principal at T + 730 days.

26. The Respondent No. 1 submitted that the Appellant's are not Financial

Creditor as their names could not be found in the records of the Corporate Debtor

and further, no payment proof was found to accept the Appellants as genuine

Homebuyers. The Respondent No. 1 pleaded that in view of these facts, Puneet

Kaur (Supra) is not applicable in the present case.

27. Concluding his argument, the Respondent No.1 requested this Appellate

Tribunal to dismiss both appeals.

28. The Respondent No.2 submitted that, pursuant to the hearing on

23.07.2025, the Appellant stated he is agreeable to categorization under 'Category

- C' of home buyers, noting that 'Category C' unit purchasers admittedly paid

monies towards illegal units/constructions. However, the Appellants failed to

demonstrate payment of any monies to the Corporate Debtor's account(s), as

recorded in paragraph 9 of the Impugned Order. The Respondent No.2, who

Page 12 of 26 submitted that therefore, the Appellants cannot seek categorization under

'Category - C' of home buyers under the successful resolution plan.

29. The Respondent No.2 submitted that the Appellants has not challenged the

Adjudicating Authority finding of no proof of payments to the Corporate Debtor,

rendering the appeals liable to dismissal on this ground alone.

30. The Respondent No.2 submitted that the judgment in Puneet Kaur (Supra)

relied upon by the Appellants is inapplicable, as the Appellants are not

homebuyers, as the said judgment records that belated claims may be admitted if

duly recorded in the Corporate Debtor's books under the homebuyer's name, but

in the present case, the Appellants' monies were not found in the Corporate

Debtor's books under the Appellant's name.

31. The Respondent No.2 submitted that the State Consumer Order dated

23.09.2019 cannot be relied upon by the Appellants to construe themselves as

home buyers and/or creditors under the Code. The Respondent No.2 submitted

that the CIRP was initiated against the Corporate Debtor just after four days after

the State Consumer Forum Order.

32. The Respondent No.2 submitted that the Appellant failed to disclose to this

Appellate Tribunal that the Agreement for Sale relied upon is an unexecuted and

unstamped document, which cannot be relied upon. The Respondent No.2 further

submitted that, under the unexecuted Agreement's terms, the Corporate Debtor

was to provide possession within 36 months plus a 9-month grace period from

issuance of the commencement certificate. Further, an Agreement for Sale

Page 13 of 26 confers no right or title to an allottee, per Suraj Lamp and Industries Pvt. Ltd.

Vs. State of Haryana and Ors [(2012) 1 SCC 656]. The Respondent No.2 further

submitted that it is undisputed fact that the purported units sold to the Appellants

were never constructed and cannot be, due to lack of sanction.

33. The Respondent No.2 submitted that, per Section 5(8)(f)(i) of the Code,

the Appellant is not an 'allottee' of the impugned flats and therefore any order

passed without jurisdiction (including by the State Consumer Forum) is a nullity

and unenforceable. The Respondent No. 2 submitted that the Appellants cannot

be categorized as Financial Creditors and cannot be placed under 'Category - C'

of home buyers under the SRA's resolution plan.

34. The Respondent No.2 submitted that the Impugned Order correctly applies

RPS Infrastructure Pvt. Ltd. Vs. Mukul Kumar 2023 INSC 816, holding an SRA

cannot face undecided claims post-CoC approval of the Resolution Plan, as this

creates a hydra head, uncertainty in liabilities, and frustrates the Code's

objectives. The Respondent No. 2 elaborated that and the Appellant, having

initiated consumer litigation cannot claim that they were unaware of the likely

CIRP, and their failure to file timely claims is unjustified.

35. The Respondent No.2 submitted that the Adjudicating Authority

considered all issues raised by the Appellants, noting no plausible explanation for

delay in filing claims before the Resolution Professional. It recorded that the

Appellant annexed an undated, unsigned 'Receipt' at page 122 of the Appeal,

showing no relation to the Corporate Debtor's bank account(s). The Respondent

Page 14 of 26 No.2 submitted that the Appellants filed claims on 24.08.2024, after 1357 days

from CoC approval of the SRA's Resolution Plan, with no explanation for the

delay. The Respondent No.2 submitted that the Appellant's claim was not in the

Information Memorandum (IM) prepared by the Resolution Professional, as the

Appellant failed to substantiate payments to the Corporate Debtor's account. This

finding in the Impugned Order is unchallenged.

36. The Respondent No.2 submitted that the CoC unanimously approved the

SRA's Resolution Plan in commercial wisdom; such wisdom cannot be second-

guessed, nor can unilateral modifications be directed, per K Sashidhar vs. Union

Bank of India & Ors., and EBIX Singapore Vs. CoC of Educomp [(2022) 2

SCC 401].

37. The Respondent No.2 submitted that it has implemented the Resolution

Plan; per Committee of Creditors of Essar Steel India Limited (Supra), it cannot

be saddled with claims not forming part of the Plan or IM, which the Appellant

failed to challenge. The Code provides a clean slate for resolution, and the SRA

cannot be fastened with belated claims due to the Appellant's lack of vigilance.

38. The Respondent No.2 submitted that the issue in RPS Infra Vs. Mukul

Kumar (2023) 10 SCC 718 mirrors this case claims filed post CoC approval and

pre-sanction order and holds no new claims can be accepted, as the Appellant was

aware of the CIRP via prior litigation, and belated claims frustrate the Code's

objectives.

Page 15 of 26

39. Concluding his arguments, the Respondent No.2 requested this Appellate

Tribunal to dismiss the appeals.

Findings

40. Both the appeals move in the limited canvass as the Appellants have raised

the issue regarding rejection of their claims and pleaded themselves to be treated

as Homebuyers. The Appellants are aggrieved by the fact that both Resolution

Professional as well as the Adjudicating Authority vide Impugned Order dated

24.04.2024, have rejected the claims of the Appellants' on account of delay by

the Appellants, in addition to not finding their details in the books of the

Corporate Debtor.

41. The facts of the case and transactions have already been captured by us

during the submissions made by the Appellants, Respondent/ Resolution

Professional and SRA who was impleaded later on as Respondent No. 2.

42. It is the case of the Appellants that their claims are covered under the ratio

stipulated in the judgement passed by this Appellate Tribunal in the matter of

Puneet Kaur (Supra). The Appellant reiterated that they were allotees/

homebuyers who have paid consideration to the Erstwhile Promoters and

therefore the Appellants should have been treated as Homebuyers. The

Appellants submitted that in terms of Puneet Kaur (Supra), it was the duty of the

Resolution Professional to take into consideration claims of the Homebuyers who

have not filed their claims but based on the record of the Corporate Debtor the

Page 16 of 26 Appellants' claims should have been included in the Information Memorandum

and the Resolution Plan should have considered their cases also.

43. We note that the Respondent No. 1/ Resolution Professional in its reply in

the appeal has stated that: -

"In this regard, it is submitted that the Respondent in its Reply to the subject Appeal, has asserted that the claims of the "homebuyers are bifurcated into three broad categories i.e. claims related to those flats that are in accordance with the revised sanction plan, claims related to those flats which had multiple bookings and claims related to those flats which are not authorized to be constructed as per the revised sanction plan dated 03.02.2012. The homebuyers falling in the third category, i.e. - claims related to those flats which were not authorised to be constructed as per the revised sanction plan dated 03.02.2012, are entitled to receive 25% of their admitted principal at the end of the plan i.e. T+730 days, the alleged subject flat of the Appellants falls in this category".

(Emphasis supplied)

44. The Appellants pleaded that based on the submissions of Resolution

Professional (noted above), they are entitled to receive 25% of their claims and

hence, they should be granted this relief. On this point, it is the case of the

Respondent No. 1/ Resolution Professional that indeed the Resolution

Professional had made the statement regarding bifurcation of Homebuyers in

three categories, however, the fact remain that the Appellants are not

Page 17 of 26 Homebuyers, since they are not Financial Creditor in terms of Section 5(8) of the

Code as they have not paid money to the Corporate Debtor.

45. The Appellants reiterated that since they are based in Kolhapur, which is

far away from Mumbai, therefore, the public announcements made in Mumbai

newspapers was not in conformity of Regulations and is in violation of Section

13 of the Code r/w Regulation 6 of CIRP Regulations. We note that on the other

hand, the Resolution Professional has also denied that he violated Section 13 of

the Code r/w Regulation 6 of the CIRP Regulations and submitted that the public

announcement was made strictly in accordance with the law laid down in the

Code and the Regulations. The Respondent No. 1 further clarified that he

published public announcement in two newspapers in accordance with CIRP

Regulations and therefore, the Appellants cannot claim that they were not aware

of the same. We find logic in this pleading of the Resolution Professional.

46. The Respondent No. 1/ Resolution Professional clarified that he has gone

through the entire books of accounts of the Corporate Debtor and has not found

any reference to Appellants as Homebuyers. The Respondent No. 1/ Resolution

Professional further submitted that no money could be traced in the bank accounts

of the Corporate Debtor or the books of accounts of the Corporate Debtor, making

the Appellants as the Financial Creditors.

47. We note that the Appellants had filed their claims on 24.08.2014 i.e., after

1357 days from the date of approval of the Resolution Plan, without any

reasonable grounds. Mere fact that they are based in Kolhapur, cannot entitle

Page 18 of 26 them excuses for filing claims after 1357 days of approval of Resolution Plan by

CoC. We observe that the CoC exercised its commercial wisdom while approving

the Resolution Plan and in terms of catena of judgments, the commercial wisdom

of CoC is not judiciable.

48. We note that the SRA has also pleaded that it cannot be saddled with the

uncertainties and such belated claims. The SRA supported the arguments of the

Resolution Professional. We also note that the SRA clarified to us that the

Resolution Plan has since then been implemented.

49. We will examine the issues raised by the Appellants that the public

announcement was deficient and therefore the CIRP itself attracted material

irregularities. We note that the public announcements were made by the

Respondent No. 1 in two newspapers, namely, Financial Express and Mumbai

Lakshadweep, which was in accordance with the CIRP Regulations. We also

observe that the Homebuyers/ allottees may be residing in different parts of India

or even may be residing abroad, hence, it is not intended that public

announcement, by way of newspaper publication, should be made in each and

every city where Homebuyers are residing. This is not practical and conceived by

the law.

50. We observe that once public announcement was made by the Respondent

No. 1 as per stipulated guidelines like newspapers, IBBI website, website of

Corporate Debtor, then this needs to be considered as sufficient and Appellants

cannot claim any grievance on account of public announcement. Thus, on aspect

Page 19 of 26 of alleged deficiencies or irregularities in public announcement as pleaded by the

Appellants, we do not find any merit.

51. It is the case of the Appellants that even though they have filed their claims

at much later stage of 1357 days, however, since the Adjudicating Authority had

not approved the Resolution Plan, their claims should have been considered in

terms of Puneet Kaur (Supra). We note that judgment by the Hon'ble Supreme

Court of India in M/s RPS Infrastructure (Supra) discourages such tendencies

of delayed claims which results in the uncertainties for the SRA. We note that in

Puneet Kaur (Supra), this Appellate Tribunal had observed that even if the

Homebuyers file their claims at belated stage, the claims of the Homebuyers may

be admitted when they are duly recorded in the books of accounts of the Corporate

Debtor under the name of Homebuyers, if before the Resolution Plan is yet to be

approved by the Adjudicating Authority. We take into consideration that in the

present case, the Resolution Professional could not locate the names of the

Appellants in the record maintained by the Corporate Debtor as well as in the

books of accounts. We also take into consideration that the Resolution

Professional could not link any transactions in the bank accounts of the Corporate

Debtor, relating to the Appellants and thus, the case of Puneet Kaur (Supra) is

not applicable.

52. During the hearing before us, the Appellants could not satisfy by way of

suitable evidence or proof of remittance of money to the Corporate Debtor.

Merely stating that this fact was mentioned in the alleged agreement, which itself

Page 20 of 26 was unstamped and undated, cannot be the ground for plea by the Appellants that

they have made the payment. Once it is concluded that no payments were made

by the Appellants and once the Resolution Professional satisfies himself that the

said money could not be traced in the books account of the Corporate Debtor, the

Appellants cannot be claimed to be Financial Creditors in terms of Section 5 (8)

of the Code. Thus, the ratio of the Puneet Kaur (Supra) is not applicable in the

present case.

53. We consider one of the alleged Agreement for Sale of Mr. Ranjan

Shivkumar Mangave {the Appellant in C.A. (AT) (Ins.) 531 of 2024} which is

reproduced below: -

Page 21 of 26 Page 22 of 26 Page 23 of 26

From above, it is clear that the said agreement is not dated, not stamped

and not even witnessed. Further, the crucial details like PAN No. are also left

blank. The Agreement for Sale, noted that the Corporate Debtor has received the

payment on or before execution of the Agreement without giving any details. We,

therefore, do not find such alleged agreement as valid or legal agreement which

could have established the case of the Appellants as Financial Creditors.

54. We also note that the submissions of the Respondent No. 1 that the

Appellants did not bring all facts before the state consumer forum and the order

was allegedly obtained fraudulently from the state consumer forum on

23.09.2019. We also take into consideration the pleadings of the Resolution

Professional that since the CIRP was initiated on 27.09.2019, the Respondent No.

1 could not file the appeal against the order of state consumer forum. Be that as

it may, the Appellants, as Homebuyers, need to have filed their claims along with

proof of their claims before the Resolution Professional, which the Appellants

failed to do as per the laid down procedures.

55. We reiterate that the Appellants could not explain the exact payments for

the flats to the Corporate Debtor before the Adjudicating Authority as well as

before this Appellate Tribunal. We also take into consideration that the same is

not being reflected in the books of the Corporate Debtor and the record of the

Corporate Debtor as confirmed by the Resolution Professional before us,

therefore we do not consider the Appellants as Financial Creditors in terms of

Section 5(8) of the Code.

Page 24 of 26

56. In conclusion, we reiterate that the Appellants failed to establish the crucial

aspect of transfer of monies to the bank account(s) of the Corporate Debtor. The

Appellants have not challenged the finding that no money has been received in

the bank account of Corporate Debtor. The Appellants could not place on record

documents demonstrating payment having been made to the Corporate Debtor.

We observe from the Impugned Order that even the purported payment receipt

annexed by the Appellants as 'Annexure A' at Pg. No. 101 of the CA No. 1169 of

2024 before the Adjudicating Authority is of no evidentiary value as the

document was neither witnessed nor dated, nor does it bear any acknowledgment

from the Corporate Debtor. It has been brought out during pleadings by the

Resolution Professional that there is no signature of any authorized person from

the Corporate Debtor acknowledging receipt of alleged funds, nor is there any

stamp, reference number, or verification that would validate the alleged payments

as genuine transaction. Further, the Agreement relied upon by the Appellants as

Annexure - B at Pg. Nos. 67 - 102 before the Adjudicating Authority was

unregistered and unexecuted. These facts do not support the cause of the

Appellant's.

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57. Based on above detailed analysis, we do not find any error in the Impugned

Order. The Appeals devoid of any merit, stand rejected. 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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