Sumer Buildcorp Private Limited vs Avenue 54 Welfare Association & Ors

Sumer Buildcorp Pvt. Ltd. ....Appellant

Vs.

Avenue 54 Welfare Association & Ors. ....Respondents

Present: For Appellant: Mr. Krishnendu Datta, Sr. Advocate with Mr. Nikhil Goel, Mr. Roy Abraham, Mr. Akhil Abraham Roy and Mr. Adithya Koshy, Advocates For Respondent: Mr. Nakul Dewan, Sr. Advocate with Ms. Nitya Parikh Shah, Mr. Kinnar Shah, Mr. Rhythm Buaria, Mr. Sarthiv and Mr. Satyender, Advocates

ORDER

(Hybrid Mode)

2.4.2024 - Heard learned Counsel for the Appellant as well as learned

Counsel for the Respondent. This Appeal has been filed against the Order dated

1st March, 2024 passed by the President of the National Company Law Tribunal,

New Delhi in TA (IBC) - 60(PB)/2023. The Application was filed by the

Respondent No.1 for transfer of two petitions filed by Financial Creditor which

were pending in Court No.3 of the Mumbai Bench of the NCLT seeking transfer

to Court No.5 where another petition filed against different Corporate Debtor is

pending. The Adjudicating Authority has noticed the prayer in Transfer

Application in para 1 and 3 as following:-

"a) This Hon'ble Tribunal be pleased to pass an order directing transfer of Company Petition

Comp. App. (AT) (Ins) No.622 of 2024 2

No.136/IBC/NCLT/MB/MAH/2022 pending before court No.III of the Hon'ble National Company Law Tribunal, Mumbai Bench to Court No.V of the National Company Law Tribunal, Mumbai Bench and the Company Petition No.136/IBC/NCLT/MB/MAH/2022 be clubbed and heard together with Company Petition No.380/IBC/NCLT/MB/ MAH/2021 pending before Court No.V of the Hon'ble National Company Law Tribunal, Mumbai Bench;

b.) ......

c.) For such other and further reliefs as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case"

Learned Counsel for the Appellant submits that the Transfer Application

was filed by Respondent No.1 who was not stakeholder and was not Applicant in

Section 7 Application. It is further submitted that the Petition pending in Court

5 was admitted under Section 7 whereas the Petitions which were now

transferred are not admitted Section 7 Application. It is submitted that by

transfer of the Applications to be heard by Court 5, prejudice is caused to the

Appellant and the impugned Order holding that the Respondent No.1 are

stakeholders is not correct. It is submitted that without admission of the

Application, Respondent No.1 cannot be held to be a stakeholder. The

submission of the Appellant are refuted by the Respondent. It is submitted that

the RERA Registration of the project is one in which three companies are treated

as co-promoters. It is submitted that the Appellant is also the co-promoter of the

same project in which other two petitions are filed against other two companies

Comp. App. (AT) (Ins) No.622 of 2024 3

who were also co-promoters. The project being one, the learned President has

exercised its jurisdiction under Rule 16(2) of NCLT Rules in giving direction in

which no exception can be taken. It is submitted that Respondent does not press

that the transfer should be made to one particular Court. The only submission

of the Respondent is that all these petitions should be heard by one Bench.

We have considered the submissions made by the parties and perused the

record. From the facts as noticed in para - 3 by the Adjudicating Authority, it is

clear that the Appellant and other two Corporate Debtors against whom Section

7 Applications have been filed, one was admitted and other were not admitted

belonging to same project. It is true that Application under Section 7 filed in

Court No.5 has been admitted and the present Applications have not been

admitted which have been transferred. Apprehension of the Appellant is that in

view of the transfer made by the learned President referring to admitted

application, the Adjudicating Authority may be influenced by the observations

made in the Order and the prejudice may be caused while considering the

Applications for admission. It is submitted that Respondent No.1 cannot be held

to be stakeholders in the Petition where they are neither party nor they are

stakeholders. There can be no dispute that the Company Petition which has been

transferred, the Respondents were not party. However, the Respondents claim

that they are home buyers of the same project which is being developed by all

the three Companies. The power given to the President under Rule 16(d) is a wide

power which can be exercised when circumstances so warrant. The President

has noticed the fact that all the three companies relate to same project which Comp. App. (AT) (Ins) No.622 of 2024 4

are registered with the RERA, Maharashtra. In so far as apprehension of the

Appellant that Section 7 Application which has been transferred to Court 5 may

be influenced by observation made in the Order, we make it clear that

observations made by the President were only for the purpose of transferring the

Application and cannot be treated as observation on the merits of the Application

which has been filed against the Appellant under Section 7; we believe that the

application be decided on its own merits without being influenced by the

observations made in the transfer order or the fact that another Application is

admitted and pending in court No.5.

With the above observations and clarification, we see no reason to

entertain this Appeal. The Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

[Mr. Arun Baroka] Member (Technical) rs/nn

Comp. App. (AT) (Ins) No.622 of 2024