Supriya Singh Vs Ansal Urban Condominiums Pvt. Ltd. (NCLAT Delhi)
Conclusion: Information Memorandum prepared by the Resolution Professional based on which the Resolution Plan approved by the CoC, could not be modified as it was well settled position of law that the Resolution Plan, duly approved by the COC as per their commercial wisdom had a very limited scope of judicial review and which was circumscribed by the provisions contained in Section 31 of the Code.
Held: Assessee had entered into several flat buyer’s Agreements with the Corporate Debtor on various dates, under which flats were allotted to assessee. As per the agreements, assessee had paid their respective consideration amount. As per the aforesaid flat buyer Agreement, the Corporate Debtor had promised to deliver the possession of the flats within a prescribed timeline. However, the possession of the respective units was never delivered to assessee. Aggrieved by the acts of the Corporate Debtor, assessee filed different complaints before the Uttar Pradesh Real Estate Regulatory Authority (UPRERA), seeking refund of the amount paid by them. It was contended by assessee that while they were pursuing the execution of the Decree, an Application under Section 7 of the Code was filed against the CD, which was admitted by the Adjudicating Authority (AA). Assessee, being allottees falling under the class of creditors as provided under Regulation 2 (1) (AA) of the IRP of the CIRP Regulations, 2016, filed their claims under Form-CA as provided under Regulation 8A of the said CIRP Regulation. The IRP admitted their claim, but adjusted the amount already received by assessee while admitting their claim. Assessee were sent an email with the Information Memorandum, wherein they found that their names in the list of allottees whose units had been cancelled but these units were still vacant. Assessee contended that, it was for the first time when assessee were made aware that their units had been cancelled. In similar cases where unit holders, who had approached the RERA and filed their complaint, even though unit holders were paid significant amount, such units were never cancelled. In their case the units had been cancelled unilaterally and arbitrarily. RP intimated assessee, through the authorised representative, that their units were found cancelled in the books of accounts of Corporate Debtor, prior to the CIRP initiation and hence the same could not be restored. It was further informed by the RP that assessee could not be treated at par with other 15 homebuyers whose units were not cancelled, despite them being on the same boat. The final approved Resolution Plan of Clause 6 provides that the allottees whose units had been cancelled should be allotted unit at base selling price (BSP) of INR 4200 per sq feet of super area. Additionally, it was provided that 100% of their admitted principal amount should be adjusted against the freshly allotted unit. The Resolution Plan further provided that the allottees should have the option to choose from a unit within 90 days from the plan effective date. Further in the event allottees did not choose a unit for allotment as per the terms mentioned, such allottees would be entitled to refund of 50% of the principal amount in terms of Clause 6. It was also clarified that allottees who had clear allotment and did not fall in any of the above categories, should be allotted a unit at their original allotment rate as per their BBA or Allotment Letter. Assessee contended that they were never informed about the cancellation. In fact, the Appellants were treated as the Financial Creditor in class, till the time the Resolution Plan was received and were also exercising their right of voting to the agendas. Applicant had already approached UPRERA seeking the refund of their entire amount along with interest which was awarded to them in terms of the RERA. The Applicant had admittedly accepted the partial amount from the erstwhile management, which implied that applicants by accepting the partial refund had acquiesced to the cancellation of the allotment. Once the allottee had accepted the refund, it had accepted the cancellation of the allotment. It was held that the units allotted to the assessee were already cancelled prior to the initiation of CIRP of the Corporate Debtor and the RP had already admitted the claims of the Applicants in the category of creditors in a class. There was no justification in the claim of assessee that Information Memorandum was based on wrong facts and therefore commercial wisdom could not be paramount. The cancellation of the units was based on the UPRERA’s Order which was not challenged. The Information Memorandum contained this information and CoC could not have revoked the cancellation and acted within its commercial wisdom approving the Resolution Plan. Therefore, there was no fault in the due process which was followed by AA.
