Ankit Goyat Vs. Sunita Agarwal

NCLAT set aside the order of admission under Section 7 and held that the facts and circumstances peculiar to the attendant case indicate that the Allottee sought benefit from a ‘lucrative Agreement’ as he is ‘securing’ his money by way of this Agreement which gives him a lien over the flat. In Clauses 2(f) & (g) of the Agreement, the Home Buyer herein is given a choice to retain the apartment or to sell the earmarked unit. In a regular Builder Buyer Agreement, the Home Buyer does not have this option of exercising his choice of taking or not taking the possession of the subject unit. In a normal Builder Buyer Agreement if the Buyer does not accept the possession, the EMD is forfeited. In this case, the Buyer gets his money plus 25% assured return even if he chooses not to retain the apartment. This Agreement is only a camouflage of actually financing the construction of the flat. Hence, we hold that the Home Buyer sought to benefit from this ‘lucrative Agreement’ and is squarely covered by the ratio of the Hon’ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd. [2019] ibclaw.in 13 SC. The IBC proceedings is not a recovery proceeding and we place reliance on the ratio of the decision of this Tribunal in ‘Binani Industries Limited’ Vs. ‘Bank of Baroda & Anr. [2018] ibclaw.in 06 NCLAT’ wherein it is observed that the IBC is not a recovery proceeding. In fact, the I&B Code prohibits and discourages recovery in several ways.(p17-18)