Subbaiya Chithambaram vs Ibi Bank Ltd

Subbaiya Chithambaram ... Appellant 122 A, Village Thandalai, Manamelkudi Taluk, Aranthangi (TK), Pudukottai District, Tamil Nadu - 621803

Vs.

IDBI Bank Ltd. ..... Respondent No. 1 Through its General Manager, IDBI Tower, WTC Complex, Cuffe Parade, Colaba, Mumbai-400005

Jaypee Infratech Limited, .... Respondent No. 2 Through its Managing Director, Sector - 128, Noida-201304. Uttar Pradesh

Present:-

For Appellant:- Ms. Revathy Raghavan, Advocate. For Respondent:- Mr. Sumant Batra, Mr. Rahul Mendiratta, Ms. Niharika Sharma, Advocates for IRP

Company Appeal (AT) (Ins.) No. 637 of 2020 Page 1 of 7 JUDGMENT

( Date: 20.12.2021) (Through Virtual Mode)

{Per. Dr. Alok Srivastava, Member (Technical)}

1. This appeal has been filed by the Appellant aggrieved by

Impugned Order dated 16.1.2020 passed by the Adjudicating

Authority (National Company Law Tribunal, New Delhi) in CA-

70/2019 & CA-71(PB)/2019 in (IB)77/ALD/2017 under section of

61 of Insolvency and Bankruptcy Code, 2016 (in short "IBC").

2. The Appellant has stated that he is a senior citizen, long

retired, and that he had put in his hard earned money in booking

of a flat in the project of Jaypee Infratech Ltd.. After paying the

full cost of the flat that is still incomplete, he is seeking refund of

the amount deposited with Jaypee Infratech Ltd. His application

was declined by the Impugned Order on the ground that there is

no recourse under law to refund the claimed amount during the

CIRP period, and also that if such a payment is made, it would be

preferential payment to an allottee which is not permitted in law.

Company Appeal (AT) (Ins.) No. 637 of 2020 Page 2 of 7

3. The relevant portion of the Impugned Order passed by the

Adjudicating Authority is as follows:-

"Since the sum and substance of the application is refund of money paid for the allotment of a house, the point to be seen herein is, as to whether the IRP or the RP, as the case may be, is entitled to refund the money to any of the allottees during the CIRP period.

Once CIRP period is commenced, it has to be construed as calm period, in which, the IRP is supposed to maintain status quo position until the resolution Plan is approved or the company is sent for liquidation.

Therefore, the question of refunding allotment to one of the allottees will not arise during the CIR period, whereby this application is hereby dismissed with liberty to proceed in accordance with law."

4. During hearing of this appeal, the Appellant had sought

transfer of this appeal to the Hon'ble Supreme Court so that it

could be heard along with similar petitions on the same matter.

The Appellant thus filed T.P. (Civil) No. 1058/2020 before the

Hon'ble Supreme Court in which order was delivered on

12.11.2021.

5. IA No. 95616/2020 (which is application for stay) and

Transfer Petition (Civil) No. 1058/2020 both preferred by the

Company Appeal (AT) (Ins.) No. 637 of 2020 Page 3 of 7 Appellant before Hon'ble Supreme Court were disposed off by the

Hon'ble Supreme Court on 12.11.2021 by the following order:-

"In light of the decision dated 24.03.2021 in Civil Appeal No. 3395 of 2020 titled as Jaypee Kensington Boulevard Apartments Welfare Association & Ors. Vs. NBCC (India) Ltd. & Ors. reported in 2021 (5) SCALE 142, nothing more is required is to be in this petition and the same is disposed of.

Pending applications, if any, stand disposed of."

6. In written submissions submitted by the Appellant, he has

claimed that the cut off date for claiming refund is 9.8.2017 as per

order dated 24.3.2021 of Hon'ble Supreme Court in Civil Appeal

No. 3395 of 2020. He has also claimed that his claim for refund

was submitted to the Interim Resolution Professional before

9.8.2017 and therefore, he is eligible to get full refund. He has

also attached statement of accounts as on 9.8.2018 maintained by

the CD, wherein the details of amount paid by the Appellant are

available (attached at pp.27-29 of Appeal paper book). He has

further annexed e-mail dated 29.11.2018 from the Interim

Resolution Professional regarding admission of his claim.

Company Appeal (AT) (Ins.) No. 637 of 2020 Page 4 of 7

7. The Learned Counsels for the parties were heard in the

appeal and their pleadings and written submissions perused by

us.

8. In arguments, the Learned Counsel for Appellant has

claimed that the Appellant is a senior citizen of advanced age, who

had put all his life savings to purchase a flat in the said project of

Jayee Infratech Ltd.. He has suffered some personal tragedies in

his life and does not now want a completed flat. Instead he has

requested for full refund of the money deposited by him with the

promoters of the project.

9. The Learned Counsel for IRP (Respondent No. 2) has

submitted that after the captioned appeal was transferred to

Hon'ble Supreme Court as Transfer Petition bearing T.P. (Civil) No.

1058 of 2020, which was disposed off by the order dated

12.11.2021 (supra) of the Hon'ble Supreme Court nothing remains

in this appeal. He has further submitted that the revised

Resolution Plan submitted by NBCC and Suraksha and the

Committee of Creditors in its commercial wisdom approved the

Resolution Plan dated 7.6.2021 read with addendum dated

09.06.2021 submitted by Suraksha, and the Resolution Plan is Company Appeal (AT) (Ins.) No. 637 of 2020 Page 5 of 7 now pending adjudication before the Hon'ble Adjudicating

Authority. Therefore, he has contended there is no need to

interfere with the Impugned Order and the appeal may be

dismissed.

10. The CIRP of Jaypee Infratech Ltd. (Corporate Debtor) was

going on when the Appellant submitted his request for refund.

According to the provisions of IBC, the claim of the Appellant shall

be settled in accordance with relevant provision in the approved

Resolution Plan of the Corporate Debtor.

11. A perusal of the Impugned Order makes it clear that it was

passed by the Adjudicating Authority during the currency of the

CIRP and the prayer of Appellant for full refund, while the CIRP

was going on, was declined. In view of the disposal of T.P. (Civil)

No. 1058 of 2020 and also the fact that now the Resolution Plan of

the Jaypee Infratech Limited approved by the Committee of

Creditors is pending approval of the Learned Adjudicating

Authority, it is clear that the Impugned Order has lost relevance..

The Appellant will be entitled to receive his rightful dues as

contained in the Resolution Plan once it is approved by the

Adjudicating Authority.

Company Appeal (AT) (Ins.) No. 637 of 2020 Page 6 of 7

12. In case refund of the deposited amount with interest does

not accrue to the Appellant as per the provisions of the Resolution

Plan after its approval by the Adjudicating Authority, and looking

to the circumstances of this case and the indigent condition of the

Appellant, we leave it open to the Successful Resolution Applicant

to consider the request of Appellant for refund of the amount

deposited by him along with interest.

13. The appeal is thus disposed of. No order as to costs.

(Justice Ashok Bhushan) Chairperson

(Dr. Alok Srivastava) Member (Technical) New Delhi 20th December, 2021

/aks/

Company Appeal (AT) (Ins.) No. 637 of 2020 Page 7 of 7