Veena Khattar vs Narender Kumar Sharma

[Arising out of order dated 21.11.2023 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench, Court - II) in I.A. No. 1377/2023 in C.P. (IB) No. 1397/PB/2019]

IN THE MATTER OF: Vinod Khattar ...Appellant Versus Narendra Kumar Sharma RP, Indirapuram Habitat Centre (P) Ltd. ...Respondent

Present: For Appellant : Mr. Anshuj Dhingra and Ms. Akansha Sharma, Advocates.

For Respondent : Mr. Sumesh Dhawan, Mr. Praful Jindal and Mr. Shaurya Shyam, Advocates for RP along with Mr. N.K. Sharma, RP.

WITH

Company Appeal (AT) (Insolvency) No. 131 of 2024

[Arising out of order dated 21.11.2023 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench, Court - II) in I.A. No. 1385/2023 in C.P. (IB) No. 1397/PB/2019]

IN THE MATTER OF: Veena Khattar ...Appellant Versus Narendra Kumar Sharma RP, Indirapuram Habitat Centre (P) Ltd. ...Respondent

Present: For Appellant : Mr. Anshuj Dhingra and Ms. Akansha Sharma, Advocates. For Respondent : Mr. Sumesh Dhawan, Mr. Praful Jindal and Mr. Shaurya Shyam, Advocates for RP along with Mr. N.K. Sharma, RP.

WITH

Company Appeal (AT) (Insolvency) No. 132 of 2024

[Arising out of order dated 21.11.2023 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench, Court - II) in I.A. No. 1376/2023 in C.P. (IB) No. 1397/PB/2019]

IN THE MATTER OF: Sarthak Khattar ...Appellant Versus Narendra Kumar Sharma RP, Indirapuram Habitat Centre (P) Ltd. ...Respondent

Present: For Appellant : Mr. Anshuj Dhingra and Ms. Akansha Sharma, Advocates.

For Respondent : Mr. Sumesh Dhawan, Mr. Praful Jindal and Mr. Shaurya Shyam, Advocates for RP along with Mr. N.K. Sharma, RP.

WITH

Company Appeal (AT) (Insolvency) No. 133 of 2024

[Arising out of order dated 21.11.2023 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench, Court - II) in I.A. No. 1375/2023 in C.P. (IB) No. 1397/PB/2019]

IN THE MATTER OF: Subhash Khattar ...Appellant Versus Narendra Kumar Sharma RP, Indirapuram Habitat Centre (P) Ltd. ...Respondent

Present:

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 2 of 20 For Appellant : Mr. Anshuj Dhingra and Ms. Akansha Sharma, Advocates.

For Respondent : Mr. Sumesh Dhawan, Mr. Praful Jindal and Mr. Shaurya Shyam, Advocates for RP along with Mr. N.K. Sharma, RP.

JUDGMENT

ASHOK BHUSHAN, J.

All these appeals have been filed against the common order of the

adjudicating authority (National Company Law Tribunal, New Delhi Bench,

Court - II), rejecting I.A. Nos.1377/2023, 1375/2023, 1376/2023 &

1385/2023, respectively. I.A. No.1377/2023 and other IAs were filed by the

appellant seeking a direction to accept their claim as financial creditor in a

class (allottee). By the impugned order, application filed by the appellant has

been rejected refusing to accept the claim of the appellant as allottees.

Aggrieved by the said order, these appeals have been filed.

2. All the appeals are founded on similar question of facts and law and are

being decided by this common judgement. It shall be sufficient to refer the

pleadings in Comp. App. (AT) (Ins.) No.130/2024 for deciding all the appeals.

3. Brief facts of the case necessary to be noticed for deciding the appeals

are:

i. The corporate debtor M/s. Indirapuram Habitat Centre Private Limited

acquired Plot No. 16 admeasuring 5.08 hectares Indirapuram,

Ghaziabad. Ghaziabad Development Authority has granted leasehold

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 3 of 20 right to the corporate debtor for usage of a subject property for socio

cultural, residential and recreational, and commercial buildings.

ii. The corporate debtor proposed to develop Club Suite/Service

Apartment Complex by name of Indirapuram Habitat Centre. The

corporate debtor entered into various Buyers Agreement with

appellants and other persons for Club Suites situate in the project, with

appellant in Comp. App. (AT) (Ins.) No. 130/2024 Vinod Khattar by

Buyers Agreement dated 15.11.2023. Club Suite No. 1109 was agreed

to be allotted for consideration of ₹35,70,000/- with area of 595 sq. ft.

by another Space Buyers Agreement dated 06.05.2016, appellant was

offered Club Suite No. 1109 for consideration of ₹35,70,000/- area of

595 sq. ft.

iii. Under the agreement, the appellant was also offered to pay assured

return. Appellant, Vinod Khattar claim to have paid the entire

consideration of ₹35,70,000/- and was duly issued the receipts by the

corporate debtor.

iv. The Corporate Insolvency Resolution Process (CIRP) against the

corporate debtor commenced on 22.08.2019, initially one Mr. Pawan

Goyal was appointed as Interim Resolution Professional (IRP). The

claims were filed by Vinod Khattar and other appellants as financial

creditor in a class. The list of creditors was circulated by the RP where

claim of appellants were reflected. Appellant, Vinod Khattar and other

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 4 of 20 being dissatisfied by not correctly admitting their claims have filed IAs

before the adjudicating authority seeking a direction to correctly verify

their claims.

v. I.A. No. 740/2021 was filed by Vinod Khattar, similarly, other

appellants also filed different applications seeking a direction to accept

the claim of the appellant as in the list of allottees which applications

were disposed of by the adjudicating authority by order dated

22.08.2022, directing the RP to consider the claim of the applicants and

take a recent decision.

vi. RP vide order dated 22.09.2022 issued a reasoned decision to appellant

Vinod Khattar and other appellants retreating its decision to admit the

claim of the appellant as collateral. The claim of the appellant as

allottee was not accepted holding that in the CRM data, there is no

detail of any allotment in favour of the appellant, Vinod Khattar and

allotment of two units, claimed by Vinod Khattar, i.e.,1109 and 1407 is

in the name of one Kshrija Estate Private Ltd. registered on 26.11.2018

and for Club Suite Unit 1407 name of allottee is Mohammed Mushtaq

Basha and Kavita vide registration 27.12.2018.

vii. The decision of the RP dated 22.09.2022 was challenged by appellant

Vinod Khattar by filing a I.A.1377/2022. Other appellants also filed

similar IAs, I.A. No. 1375/2023, 1376/2023 & 1385/2023. In the IAs

appellants challenged the decision of the RP rejecting their claim to be

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 5 of 20 recognised as allottee and prayed for a direction to the RP to recognise

their claim as allottees. I.A. No.1377/2023, 1375/2023, 1376/2023 &

1385/2023 came for consideration before the adjudicating authority.

There were others IAs filed by other claimants including I.A.

No.5177/2022. In I.A.5177/2022, applicant claim to be treated as a

financial creditor in a class i.e., allottee. Adjudicating authority by

impugned order dated 21.11.2023 rejected I.A.5177/2022, observing

that the claim of the applicant 5177/2022 is not verifiable from the

audited CRM data and books of the corporate debtor. No document

could be found to come to conclusion that applicant (I.A.5177/2022) be

treated as financial creditor in a class. Adjudicating Authority observed

that RP need to go by the books of account balance sheet record of the

corporate debtor and not by documents which do not found part of the

record. Consequently, the application, I.A.5177/2022 was rejected.

viii. Adjudicating Authority relied on its decision in I.A.5177/2022, rejected

the I.A.1377/2023, 1375/2023, 1376/2023 & 1385/2023. It is useful

to extract the order passed by the adjudicating authority rejecting the

aforesaid IAs, which is as follows:

"IA-1375/2023, IA-1377/2023, IA-1376/2023, IA- 1385/2023: It is not in dispute that the issue arises in the captioned applications is identical to the one raised in IA- 5177/2022.

In view of the aforementioned order passed in IA- 5177/2022 (ibid), the captioned applications are found devoid of merits and are accordingly rejected."

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 6 of 20 ix. Aggrieved by the aforesaid order passed by the adjudicating authority

in I.A. Nos.1377/2023, 1375/2023, 1376/2023 & 1385/2023, all these

appeals have been filed.

x. Notices were issued in the appeal on 07.02.2024. RP has filed the reply

in the appeals. Appellant in Comp. App. (AT) (Ins.) No. 130/2024 has

also filed additional document dated 04.07.2024 to which reply has

been filed by the RP dated 30.07.2024. Similarly, replies have been

filed in all other appeals by the RP. Learned counsel for the parties

have also filed their respective written submissions.

4. The submissions advanced by the counsel for the appellant being

common submission, we refer to the common submissions as submission on

behalf of the appellant.

5. Learned counsel for the appellant submits that buyers agreement was

entered with the allottees with reference to Club Suites the payments have

also been made of the entire consideration by the appellant which is an

accepted fact, receipts were issued by the corporate debtor. Appellants were

also paid the assured returns till June 2018. Appellant have filed separate

claim with regard to Club Suites which were admitted under the direction of

the adjudicating authority dated 22.08.2022, RP again issued a decision

rejecting the claim of the appellant as allottees. RP in his reply stated that in

the CRM data of the corporate debtor, no documents to support any allotment

in favour of the appellants have been found hence, the appellant cannot be

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 7 of 20 accepted as allottees. It is submitted that appellant having paid the entire

consideration and the consideration having been reflected in the record of the

corporate debtor. RP was required to admit the claim of the appellant as

allottees. Claim of the appellant cannot be rejected merely on the ground of

CRM data (Customer Relationship Management) (CRM software) does not

reflect allotment in favour of the appellant. Appellant has also brought on

record copy of the letter by Indirapuram Habitat Centre as the confirmation

and offer of possession of the Club Suite by the corporate debtor. RP in the

reply, which was submitted on 30.07.2024, in Comp. App. (AT) (Ins.) No.

130/2024 has now taken stand that appellant submitted a cancellation

surrender letter dated 12.12.2016. Appellant has never surrendered his Club

Suite nor were refunded the consideration paid by the appellant. Without

refund of consideration paid by the appellant, there can be no question of

cancellation of Club Suite. Additional reply which has been filed by the RP

now sought to introduce new facts which were never filed before the

adjudicating authority. It is submitted that no proof having been brought by

the RP on refund of any amount to the appellant, the theory of

cancellation/surrender of the Club Suite by the appellant is wholly incorrect

and without any basis. It is submitted that there being allotment by corporate

debtor of the Club Suites in favour of the appellant, they were entitled to be

recognised as allottee.

6. Learned counsel for the RP refuting the submissions of the counsel for

the appellant submits that appellant has rightly been not treated as financial

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 8 of 20 creditor in a class, allottees. There is no record available in the CRM data

maintained by the corporate debtor. There being no allotment in favour of the

appellants reflected in the CRM data, RP had no other option except to not

treat the appellant as not allottee. It is submitted that amount paid by the

appellant being reflected in the records of the corporate debtor the said

appellants have been admitted as claim of the appellant for the amount has

been admitted as unsecured financial creditor/collateral. The units allotted

to the appellant having been allotted/surrender and they have been allotted

to other third party whose claims are reflected in CRM data, appellant cannot

be accepted as allottees. Subash Khattar of appellant of Comp. App. (AT)

(Ins.) No. 133/2024, agreed to surrender 11 units to corporate debtor for total

amount of ₹15.78 crore. MoU was entered dated 14.12.2016. Corporate

debtor made a payment of ₹4 crore out of total consideration of ₹15.78 crore.

All the 11 units which were surrendered have been allotted to third parties.

With respect to Club Suites, which are claimed by Subash Khattar (911),

Vinod Khattar (1109, 1407), Veena Khattar (923) and Sarthak Khattar (907),

all these units have been allotted to third parties in reference to various

agreement executed in the year 2018-16 respectively.

7. We have considered the submissions of counsel for the parties and

perused the records.

8. Before we proceed to enter into the submission, we need to notice the

prayers made in the above appeals.

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 9 of 20

9. In Comp. App. (AT) (Ins.) No.130/2024, appellant, Vinod Khattar has

made following prayers:

"A. That the Resolution Professional be directed to consider the claim of the Appellant in its true & correct perspective and accordingly admit the Claim of the Appellant in the "List of Allottees" with respect to the Units No. 1109 and 1407, Indirapuram Habitat Centre for the sum of Rs. 65,68,800/- each (inclusive of (1) principal amount, (2) assured return - which is admitted since assured returns were paid for some time, TDS was also deducted on the same, (3) short deposit of TDS on assured return; (4) interest which is the time value of money) which has already been submitted to the RP vide Form CA dated 06.09.2019;

B. Expunge the names of other third party(ies) which has been shown as Allottee(s) allegedly on the basis of the CRM data of the Corporate Debtor with regard to the subject Units 1109 and 1407, Club Suites, Indirapuram Habitat Centre already allotted in favour of the Appellant herein along with cancellation of all Allotment Letters, Allotment Agreements etc. issued or executed by the Corporate Debtor in their favor.

C. That the Respondent RP may be directed by this Hon'ble Tribunal to proceed with the execution as well as registration of the Sale Deed(s) for the Unit 1109 and 1407, Club Suites, Indirapuram Habitat Centre in favour of the Appellant herein;

D. Till the fulfillment of the aforementioned prayer(s) (A.) to (C.), direct the RP to recognize the Appellant as a Financial Creditor for an amount of Rs. 65,68,800/- qua each Units along with an interest calculated @ 24% per annum as a Financial Creditor (Allottee) of the Corporate Debtor herein.

E. Pass any such order as this Hon'ble Tribunal may deem fit in the facts and circumstances of the case."

10. In Comp. App. (AT) (Ins.) No.131/2024, Veena Khattar has made

following prayers:

"A. That the Resolution Professional be directed to consider the claim of the Applicant in its true & correct perspective and accordingly admit the Claim of the Applicant in the "List of Allottees with respect to the Unit

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 10 of 20 No.923, Indirapuram Habitat Centre for the sum of Rs. 65,68,800/-(inclusive of (1) principal amount, (2) assured return which is admitted since assured returns were paid for some time, TDS was also deducted on the same, (3) short deposit of TDS on assured return; (4) interest which is the time value of money) which has already been submitted to the RP vide Form CA dated 06.09.2019; B. Expunge the names of other third party(ies) which has been shown as a Allottee(s) allegedly on the basis of the CRM data of the Corporate Debtor with regard to the subject Unit 923, Club Suites, Indirapuram Habitat Centre already allotted in favour of the applicant herein along with cancellation of all Allotment Letters, Allotment Agreements etc. issued or executed by the Corporate Debtor in their favor.

C. That the Respondent RP may be directed by this Hon'ble Tribunal to proceed with the execution as well as registration of the Sale Deed(s) for the Unit 923, Club Suites, Indirapuram Habitat Centre in favour of the Applicant herein;

D. Till the fulfillment of the aforementioned prayer(s) (A.) to (C.), direct the RP to recognize the applicant as a Financial Creditor for an amount of Rs. Rs. 65,68,800/- along with an interest calculated @ 24% per annum as a Financial Creditor (Allottee) of the Corporate Debtor herein.

E. Fass any such order as this Hon'ble Tribunal may deem fit in the facts and circumstances of the case."

11. In Comp. App. (AT) (Ins.) No.132/2024, Sarthak Khattar, appellant has

prayed for following reliefs:

"A. That the Resolution Professional be directed to consider the claim of the Applicant in its true & correct perspective and accordingly admit the Claim of the Applicant in the "List of Allottees" with respect to the Unit No.907, Indirapuram Habitat Centre for the sum of Rs. 65,68,800/-(inclusive of (1) principal amount, (2) assured return which is admitted since assured returns were paid for some time, TDS was also deducted on the same, (3) short deposit of TDS on assured return; (4) interest which is the time value of money) which has already been submitted to the RP vide Form CA dated 06.09.2019; B. Expunge the names of other third party(ies) which has been shown as a Allottee(s) allegedly on the basis of the CRM data of the Corporate Debtor with regard to the

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 11 of 20 subject Unit 907, Club Suites, Indirapuram Habitat Centre already allotted in favour of the applicant herein along with cancellation of all Allotment Letters, Allotment Agreements etc. issued or executed by the Corporate Debtor in their favor.

C. That the Respondent RP may be directed by this Hon'ble Tribunal to proceed with the execution as well as registration of the Sale Deed(s) for the Unit 907, Club Suites, Indirapuram Habitat Centre in favour of the Applicant herein;

D. Till the fulfillment of the aforementioned prayer(s) (A.) to (C.), direct the RP to recognize the applicant as a Financial Creditor for an amount of Ra. Ra. 65,68,800/- along with an interest calculated @ 24% per annum as a Financial Creditor (Allottee) of the Corporate Debtor herein.

E. Pass any such order as this Hon'ble Tribunal may deem fit in the facts and circumstances of the case."

12. In Comp. App. (AT) (Ins.) No.133/2024, Subhash Khattar has made

following prayers:

"a. That the Respondent Resolution Professional be directed to recognize the Appellant herein as Financial Creditor (Allottee) with regard to Units No. C-77, 78, 79, 80, 81, 82, 83, 84, 85, 86 & 87 located at Indirapuram Habitat Centre and thereupon include the name of the Appellant in the list of Creditors as Financial Creditor (Allottee) of the Corporate Debtor;

b. Expunge the names of other third party(ies) which has been shown as a Allottees allegedly on the basis of the CRM data of the Corporate Debtor with regard to the subject Units No. C-77, 78, 79, 80, 81, 82, 83, 84, 85, 86 & 87 already allotted in favour of the Appellant herein along with cancellation of all Allotment Letters, Allotment Agreements etc. issued or executed by the Corporate Debtor in their favor, c. That the Respondent RP may be directed by this Hon'ble Tribunal to proceed with the execution as well as registration of the Sale Deed(s) for the said units No. C-77, 78, 79, 80, 81, 82, 83, 84, 85, 86 & 87 (Ground Floor) in favour of the Appellant herein;

d. Till the fulfillment of the aforementioned prayer(s) (A.) to (C.) direct the RP to recognize the Appellant as a Financial Creditor for an amount of Rs. 15.78 Crores (Rs. Fifteen

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 12 of 20 Crores Seventy Eight Lakhs Only) along with a contractual interest calculated @ 24% per annum with effect from December 2016 as a Financial Creditor (Allottee) of the Corporate Debtor herein.

e. That the Resolution Professional be directed to appreciate and admit accordingly the Claim of the Appellant in respect of the Unit No.911, Indirapuram Habitat Centre for the sum of Rs. 65,68,800/-(inclusive of (1) principal amount, (2) assured return which is admitted since assured returns were paid for some time, TDS was also deducted on the same, (3) short deposit of TDS on assured return; (4) interest which is the time value of money) which has already been submitted to the RP vide Form CA dated 06.09.2019 and has been wrongly shown as "Duplicate with claim with 1588" since the publication of list w.e.f 20.11.2019 and onwards as detailed above;

f. Expunge the names of other third party(ies) which has been shown as Allottee(s) allegedly on the basis of the CRM data of the Corporate Debtor with regard to the subject Unit 911, 9th Floor, Club Suites, Indirapuram Habitat Centre already allotted in favour of the Appellant herein along with cancellation of all Allotment Letters, Allotment Agreements etc. issued or executed by the Corporate Debtor in their favor.

g. That the Respondent RP may be directed by this Hon'ble Tribunal to proceed with the execution as well as registration of the Sale Deed(s) for the Unit 911, 9th Floor, Club Suites, Indirapuram Habitat Centre in favour of the Appellant herein;

h. Till the fulfillment of the aforementioned prayer(s) (A.) to (C.) direct the RP to recognize the Appellant as a Financial Creditor for an amount of Rs. Rs. 65,68,800/- along with a interest calculated @ 24% per annum as a Financial Creditor (Allottee) of the Corporate Debtor herein. i. Pass any such order as this Hon'ble Tribunal may deem fit in the facts and circumstances of the case.

13. We have already noticed the part of the impugned order by which IAs

filed by Vinod Khattar I.A.1377/2023 and other IAs have been rejected.

Before we proceed further, we need to notice the relevant pleadings of the

appellant, Vinod Khattar in I.A. 1377/2023. Other appellants have also filed

separate IAs as noted above with identical prayers. It shall be sufficient to

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 13 of 20 notice the pleadings in I.A.1377/2023 to appreciate the nature of the claims.

Appellant, Vinod Khattar in his application has referred to allotment of Club

Suite 1109 and 1407. It was further pleaded that entire consideration of

Rs.35,70,000/- for each units was paid to R.T.G.S. Paragraphs 6 to 8 of the

application are as follows:

"6. That the present applicant was allotted units i.e. residential studio Apartments known as Club Suite No. 1109, 11th Floor and Club Suite No. 1407, 14th Floor {"Club Suites") in the same project by the Corporate Debtor. It is important to mention that the said Club Suite was acquired by the present Applicant under Agreements executed on 06.05.2016 and 15.11.2013 respectively between the Applicant and the Corporate Debtor herein.

7. The said Club Suites, each admeasuring 595 Sq. Feet, were purchased by the Applicant for a total sales consideration of Rs. 35,70,000/- each and the same amount was fully paid to the Corporate Debtor through RTGS and no amount remained pending thereagainst. It is very significant to note that the Corporate Debtor as per the terms of the Allotment has been paying the assured returns against the said Club Suite for some time and even the TDS was being deducted with regard to the same.

8. The applicant herein had filed its separate and independent claims with regard to the subject premises No. 1109 and 1407 (Studio Apartments) of the project Indirapuram Habitat Centre with the Interim Resolution Professional Mr. Pawan Kumar Goyal for a sum of Rs. 65,68,800/-(inclusive of (1) principal amount, (2) assured return-which is admitted since assured returns were paid for some time, TDS was also deducted co the same, (3) short deposit of TDS on assured return; (4) interest which is the time value of money) on 06.09.2019. It is important to mention that the said claim of the Applicant was accepted by the IRP in toto and was accordingly inserted in the list of Financial Creditors populated by him on 15.10.2019 and as such appears at Serial No. 1610 and 1611 thereof."

14. Application captures another detail claim correspondence with the RP.

Filing of the application I.A.740/2020 decision of the RP and challenged to

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 14 of 20 the decision of the RP and various grounds enumerated in the application.

The prayer in the application by Vinod Khattar is as follows:

"A. That the Resolution Professional be directed to consider the claim of the Applicant in its true & correct perspective and accordingly admit the Claim of the Applicant in the "List of Allottees" with respect to the Unit No. 1109 and 1407, Indirapuram Habitat Centre for the sum of Rs. 65,68,800/- each (inclusive of (1) principal amount, (2) assured return - which is admitted since assured returns were paid for some time, TDS was also deducted on the same, (3) short deposit of TDS on assured return; (4) interest which is the time value of money) which has already been submitted to the RP vide Forms CA dated 06.09.2019;

B. Expunge the names of other third party(ies) which has been shown as a Allottee(s) allegedly on the basis of the CRM data of the Corporate Debtor with regard to the subject Unit 1109 and 1407, Club Suites, Indirapuram Habitat Centre already allotted in favour of the applicant herein along with cancellation of all Allotment Letters, Allotment Agreements etc. issued or executed by the Corporate Debtor in their favor.

C. That the Respondent RP may be directed by this Hon'ble Tribunal to proceed with the execution as well as registration of the Sale Deed(s) for the Unit 1109 and 1407, Club Suites, Indirapuram Habitat Centre in favour of the Applicant herein;

D. Till the fulfillment of the aforementioned prayer(s) (A.) to (C.), direct the RP to recognize the applicant as a Financial Creditor for an amount of Rs. Rs. 65,68,800/- along with an interest calculated @ 24% per annum as a Financial Creditor (Allottee) of the Corporate Debtor herein vis-a-vis each unit bearing no. 1109 and 1407, Club Suites;

Pass such other order as this Hon'ble Tribunal may deem fit an expedient in the facts of the present case."

15. Reply which has been filed by the RP in the appeal, in the reply which

has been admitted that appellant Vinod Khattar has filed claim in 'Form-CA'

for suite 1109 & 1407 and has also filed Builder Buyer Agreement.

15.11.2013 and 06.05.2016. RP, however, pleaded that Unit No. 1109 is

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 15 of 20 allotted to one Kshrija Estate Pvt. Ltd. by agreement dated 26.11.2018 and

Club Suite 1407 is allotted to Mohammad Mushtaq Basha by agreement dated

27.12.2018. The case of the RP is that in the CRM data subject Club Suites

have been allotted to other third parties. In the reply which was filed on

30.07.2024 by the RP to the additional document, RP has now come with a

case that appellant, Vinod Khattar of 12.12.2016 had submitted for

cancellation surrender of Club Suite being 1109 and 1407 which fact is

claimed to be verified from CRM data maintained by the corporate debtor. It

is useful to extract paragraphs 6 & 7 of the reply dated 30.07.2024, which is

as follows:

"6. In fact, it is pertinent to state that the Appellant on 12.12.2016, had submitted for cancellation/ surrender of Club Suite bearing No. 1109 and 1407 (which forms part of the present Company Appeals). This fact has been verified from the CRM Data maintained by the Corporate Debtor. A screen-shot of the CRM software of the Corporate Debtor, along with Surrender Report generated from the CRM data in respect of Appellant, is annexed herewith and marked as ANNEXURE-B.

7. In view of the facts and circumstances, it is evident that the amount paid by the Appellant towards Club Suite Nos. 1109 and 1407, stood surrendered and the same amount was shifted/ adjusted towards investment arrangement between the Suspended Management of Corporate Debtor and Appellant herein."

16. In the reply, which was filed to the application 1377/2023 by RP, no

case of surrender or cancellation of the unit was set up. The fact that RP is

now pleading that appellant, Vinod Khattar got unit cancelled/surrendered

pre-supposes allotment of the units. We have noticed above that the

impugned order rejecting the IA filed by Vinod Khatter and other appellants

does not consider IAs separately, nor has adverted to the individual facts given

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 16 of 20 by the appellants in their respective applications and the materials to support

their case including Builder Buyer Agreement and receipt of payment by

corporate debtor. The reliance for rejecting all the applications filed by the

appellant reliance is placed on the order passed in I.A.5177/2022. It is useful

to extract the entire order passed in I.A.5177/2022, which is as follows:

"IA-5177/2022: The salient contention espoused on behalf of the Applicant is that instead of treating the Applicant as a Home Buyer/Allottee/FC as a class, the IRP could treat him as unsecured FC. The prayer made in the application reads thus:

A. "Direct the Resolution Professional to categorize the claim of the Applicant as an allottee of the Corporate Debtor.

B. Direct the Resolution Applicant to consider and deal with the claim of the Applicant as an allottee under the Resolution Plan."

According to the Ld. Counsel for the Applicant, being an allotee of commercial units, the Applicant should have been treated as Allottee/FC as a class and not as unsecured FC, Despite our repeated asking, Ld. Counsel for the Applicant could not draw our attention to any "Allotment letter". According to him, certain contracts/agreements are sufficient documents to treat the Applicant as FC as a class. On the other hand, Mr. Sumesh Dhawan, Ld. Counsel appearing for the RP, who is present along with RP submitted that on verification of audited CRM data and books of the CD, he could not find any document to draw a conclusion that the Applicant could be treated as FC in a class. He could also produce certain documents to espouse that certain claimants could produce the possession letters purportedly signed by Authorised representative/authorized signatory of the CD qua such. units/towers which were not even constructed/in existence. He vehemently submitted that many claimants approached him with forged/manufactured documents thus, he was left with no option, but to verify and reverify the CRM data and the books of accounts of CD and entertain the claims only with reference to the books of the CD. We cannot be oblivious of the fact that the RP needs to go by the book of accounts/balance sheets/record of the CD and not be

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 17 of 20 by such documents which do not form part of such record it would not be gainsaid that if any document outside the record of the CD is allowed to be relied upon for the purpose of acceptance of the claim of the claimants, the malpractice would be encouraged. In view of the fact that the IRP verified the claim of the Applicants with reference to the CRM data and the books of accounts of CD and did not find the Applicant as Allottee/FC as a class, we do not find any force in the plea of the Applicant that he should be treated as FC as a class and not as unsecured creditor. In the wake, the application is found devoid of merits and is accordingly, rejected."

17. The above reasons indicates that applicant of I.A.5177/2022 cannot be

treated to be allottee and despite the repeated asking counsel for the applicant

could not draw attention to any allotment letter. RP's submission that on

verification of the CRM data and books of the corporate debtor, could not file

any document to draw conclusion that applicant could be treated as financial

creditor in a class. In the present case, insofar as the payments by the

appellants are concerned, RP has not denied that payments are reflected in

the records of the corporate debtor. Submission of the RP has also been

noticed that many claimants approach RP with forged manufactured

documents. Hence, he was left with no option but to re-verify the CRM data

and the books of account of corporate debtor.

18. RP in the case of the appellant is not denying the payments received by

the corporate debtor towards the units. Builder Buyer Agreement were

brought by the appellant. No case has been set up that for allotment of units

any other format of allotment letter was issued by the corporate debtor. There

are no allotment letter by which the Club Suites are sought to be allotted to

third parties have been referred to except the mention the date of agreement.

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 18 of 20

19. In the facts of the present case, we are of the view that adjudicating

authority was required to consider the applications filed by the appellant

individually. Appellants application being based on individual facts of each

case. In any event, at least one of the applications filed by this appellants

group was required to be considered in detail including the reply submitted

by the RP to the application. The rejection of all the applications filed by the

appellant were only on the basis of decision taken by the adjudicating

Authority rejecting I.A. No.5177/2022. It is not even proved that basis of I.A.

No. 5177/2022 is same as those of the applications I.A.1377/2023 and other

applications filed by the appellant. The RP in the reply 30.07.2024 filed in

Comp. App. (AT) (Ins.) No. 130/2024 has now set up a case of

cancellation/surrender of the units by the appellant, Vinod Khattar, which

was not even before the adjudicating authority in the reply filed by the RP,

which need consideration and findings by the adjudicating authority.

20. In view of the foregoing discussions, we are of the view that ends of

justice be served in setting aside the order of the adjudicating authority dated

21.11.2023, insofar as I.A. Nos. 1377/2023, 1375/2023, 1376/2023 &

1385/2023. The aforesaid IAs are revived before the adjudicating authority

for fresh consideration. New materials having been brought on record in these

appeals, we grant liberty to both the parties appellant as well as the RP to file

additional affidavit in support of their respective applications and reply which

may be done within two weeks from today. We revive the applications before

the adjudicating authority and direct the parties to appear before the

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 19 of 20 adjudicating authority. Parties to place the copy of the order before the

adjudicating authority for fixing a date.

21. We make it clear that we have not expressed any opinion on the merits

of the claim of either of the parties and it is for the adjudicating authority to

consider and take appropriate decision in accordance with the law.

22. The appeals are partly allowed to the above extent.

Parties shall bear their own costs.

[Justice Ashok Bhushan] Chairperson

[Arun Baroka] Member (Technical)

NEW DELHI

30th June, 2025

himanshu

Comp. App. (AT) (Ins.) No. 130 - 133 of 2024 20 of 20