Sunil Kumar Agrwal vs New Okhla Industrial Development ...

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI COMPANY APPEAL (AT)(INSOLVENCY) NO.483/2021 IA No.3729/2022 (Arising out of judgement and order dated 13.05.2021 passed by National Company Law Tribunal, New Delhi in IA bearing No.788/2021 in Company Petition bearing No.(IB)1896/ND/2019) In the matter of: Sunil Kr Agrawal, RP GSS Procon Pvt Ltd E-29, South Extension II New Delhi-110049

Also at

904, GF, Sector 7C Faridabad 121006, Haryana Appellant

Vs

1. New Okhla Industrial Development Authority, Main Administrative Building, Sector 6, Noida 201301, UP

2. Anil Kumar Saxena, B-118, First Floor Shivalik, Malviya Nagar New Delhi-110017

3. Sachin Goel 10-A/7, Shakti Nagar, Delhi-110007 Respondent

For Appellant:Mr Rakesh Kumar, Ms Preeti Kashyap, Mr Ankit Sharma, Mr Pulkit Mehrotra, Mr Sunil Kumar Agarwal, Advocates for RP.

For Respondent:Mr PBA Srinivasan, Ms Shrishti Bansal, Mr Manish Kumar, Rajshree Dhapola and Mr. Sumir Swami, Advocates. Mr Rachit Mittal, Mr Parish Mishra, Mr Kanishk Raj, Mr Adarsh Srivastava and Mr Abhishek Sinha, Advocates for R1. With COMPANY APPEAL (AT)(INS) NO.617/2021 2

In the matter of

Mr Ajay Kumar Siwach Appellant Flat No.504, Rama Krishna Society, Sector 2, Faridabad 121004

Vs

1. New Okhla Industrial Development Authority, Main Administrative Building, Sector 6, Noida 201301, UP

2. Mr Sunil Kumar Agarwal, 904, GF, Sector 7C Faridabad 121008

3. Anil Kumar Saxena, B-118, First Floor Shivalik, Malviya Nagar New Delhi-110017

4. Sachin Goel 10-A/7, Shakti Nagar, Delhi-110007 Respondent

For Appellant: Mr Kumar Mihir and Mr Athul Josesh, Advocates. For Respondent:Mr PBA Srinivasan, Ms Shrishti Bansal, Mr Manish Kumar, Rajshree Dhapola and Mr. Sumir Swami, Advocates. Mr Rachit Mittal, Mr Parish Mishra, Mr Kanishk Raj, Mr Adarsh Srivastava and Mr Abhishek Sinha, Advocates for R1.

ORDER

HYBRID MODE

15.09.2025: This appeal is filed under Section 61 of the Insolvency and

Bankruptcy Code, 2016 against the impugned order dated 13.05.2021 passed

by the National Company Law Tribunal Bench, New Delhi in IA bearing

No.788/2021 in Company Petition bearing No. (IB)1896/ND/2019 wherein

the said IA stands allowed.

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2. The Company Appeal (AT)(Ins) No.483/2021 has been filed by the

Resolution Professional of the Corporate Debtor challenging the impugned

order stating inter-alia the said impugned order had wrongly quashed the

notes dated 20.11.2020 and 24.11.2020 issued by Respondents No.2 and 3

respectively. It is submitted such notes were issued after Respondent No.2

and 3 had given their valuation reports dated 17.08.2020 and 10.07.2020

respectively.

3. It is argued the impugned order is premised on the ground the valuers

did not consider the effect of Section 13 of the Uttar Pradesh Apartment

(Promotion of Construction, Ownership and Maintenance) Act, 2010.

4. It is to be noted such an objection was raised by Respondent No.1

herein stating inter-alia the possession of the apartment cannot be transferred

by a promoter or an apartment owner until and unless a proper transfer deed

is executed. However, it was the argument of the appellant before the Ld.

Adjudicating Authority that the promoters/ex-management of Corporate

Debtor had already allotted all 291 flats and 9 shops and most of the home

buyers have taken possession of their flats in the year 2015 itself and the

Corporate Debtor though submitted an application before the Noida

Authority/Respondent No1 herein for occupancy and completion certificate in

December, 2014, yet they were never issued.

5. It was alleged by the appellant the transfer deed(s) could not be

executed since Noida Authority failed to issue the necessary occupancy

certificate and completion certificate of the project of Corporate Debtor. It was

argued no flat/shop/space or any other asset of the Corporate Debtor is left

so as to be valued for the purpose of finding the liquidation value and hence 4

both the registered valuers gave their subsequent notes dated 20.11.2020 and

24.11.2020 giving the liquidation value as Nil, hence the impugned order

quashing both the notes is wrong.

6. Company Appeal (AT) (Ins) No.617/2021 is also against the quashment

of notes dated 24.11.2020 and 20.11.2020 issued by Respondents No.3 and

4 whereby the liquidation value of the project of the Corporate Debtor has

been declared as zero.

7. The appellant Mr. Ajay Kumar alleged Section 13 of the Uttar Pradesh

Apartment (Promotion of Construction, Ownership and Maintenance) Act,

2010 has no relevance in the present case as the liquidation value is not based

on who owns the property, but on the amount at which the individual assets

of the enterprise could be sold to a willing buyer. It was argued in the present

case all shops and flats have been constructed and its possession have

already been handed over to all its respective allottees/creditors, subject to

their respective agreements and many of them have already mortgaged those

flat with Banks under home loan agreement(s) and thus the impugned order

holding the liquidation value otherwise than Nil, on the premise of Section 13

of the Act of 2010 (supra), needs to be set aside.

8. The argument of the learned counsel appearing on behalf of Noida

Authority/Respondent No.1 is similar to its IA No.788/2021.

9. During the course of the arguments, the learned counsels for the

appellant(s) in both the appeals submitted let these appeals be disposed of

by setting aside the impugned order and by directing the CoC to appoint fresh

registered valuers so that they can give their fresh valuation reports after

considering all aspects, including Section 13 of the Act, 2010 (supra) as also 5

the provisions of the Code and its relevant Regulations. Perhaps this may not

prejudice the Respondent No.1 as in its application IA No. 788/2021. It has

also prayed for conducting fresh valuation, rather at its own costs.

10. Thus without dealing with the appeals on merits and while considering

the submissions made, it would be appropriate to set aside the impugned

order dated 13.05.2021 of the Ld. Adjudicating Authority, alongwith all

valuation reports filed on record till date by Respondents No.2 and 3 and we

remand the matter to the Ld. Adjudicating Authority with request to CoC to

take a call on the basis of fresh valuation reports of the 2 independent

registered valuers, to be appointed afresh by the CoC.

10. With these observations, both the appeals are disposed off.

11. Pending applications including IA No.3729/2022 are disposed off, with

the liberty to the applicant of IA No.3729/2022 to seek appropriate remedy

before the Ld. Adjudicating Authority.

(Justice Yogesh Khanna) Member (Judicial)

(Mr Ajai Das Mehrotra) Member (Technical)

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