Number of Allottees has to be seen on date of IBC Section 7 petition filing and subsequent withdrawal of certain allottees in view of the settlement arose would not affect the maintainability of the petition | Home buyers approached RERA or NCDRC before approaching NCLT remain Financial Creditors under Section 5(8)(f) of IBC – Tarun Ahuja and Ors. Vs. Puri Construction Pvt. Ltd. – NCLT New Delhi Bench
In this important judgment in Real Estate Insolvency, Hon’ble NCLT New Delhi Bench holds that:
(i) In view of Vishal Chelani & Ors. Vs Debashis Nanda, (2023) ibclaw.in 117 SC judgment of the Hon’ble Supreme Court, it is concluded that irrespective of the fact that the home buyer allottees approached RERA or NCDRC before approaching this Adjudicating Authority, the status of the home buyers being ‘financial creditors’ under Section 5(8)(f) of the Code remains intact. Hence, the averment of the corporate Debtor that the allottees who approached RERA or NCDRC ceases to be considered as ‘financial creditors’ under Section 5(8)(f) of the Code does not hold any ground.
(ii) In view of the Judgment of the Hon’ble Supreme Court in the Manish Kumar Vs Union of India (2021) ibclaw.in 16 SC, the number of allottees has to be seen on the date of the filing of the petition and subsequent withdrawal of certain allottees in view of the settlement arose between settled allottees and the Corporate Debtor would not affect the maintainability of the present petition.
(iii) The Hon’ble Supreme Court in the case of Pioneer Urban Land and Infrastructure Ltd. & Anr. Vs Union of India & Ors. (2019) ibclaw.in 13 SC has upheld the status of allottees of a real estate project as financial creditors provided “the allottees are interested in completion of the project”, however, such is not the position in the present case. In the present case, the homebuyers are concerned only with seeking refund of the money and have no longer interest in taking over the possession of the Flats.