Landmark judgment on filing of CIRP application under Section 7 of IBC by Homebuyers or allottees under RERA, 2016 – Manish Kumar Vs. Union of India and Another – Supreme Court
January 20, 2021
This judgment covers: A.1 Background. A.2 Grounds on which a law can be challenged. B.1 The Real Estate (Regulation and Development) Act, 2016 and its Scheme. B.2 Definition of “Real Estate Project” and “Allottee” for the purpose of Section 5(8)(f) of IBC. B.2.1 Real Estate Project Meaning [Section 2(zn) of RERA, 2016]. B.2.2 Allottee Meaning [Section 2(d) of RERA, 2016]. B.2.3 Allottees to be from same Real Estate Project?. B.2.4 Holdings by Family Members etc. and Joint Holdings of a Unit: Single Allottee?. B.2.5 What will be the total number of allottees and therefore what would constitute 1/10 of total number of allottees under proviso to Section 7(1) of IBC. B.2.6 Calculation of threshold under proviso to Section 7(1) of IBC. B.2.7 Meaning of allotment. B.3 CIRP application filing procedures issues. B.3.1 Calculation of default threshold amount for Sec. 4 of IBC in Real Estate Project Insolvency Application/Joint Application. B.3.2 Single or multiple CIRP application(s) would have to be filled-up, if there are 100 and more allottees?. B.3.3 If they have agreements, under which, the date of default is different, how is the application to be drafted and processed?. B.3.4 The Point of Time to comply with the threshold requirements: at the time of filing of an application u/s 7 of IBC? or till the date, it is admitted u/s 7(5)? B.3.5 The power of waiver, being denied, unlike the Companies Act. B.4 Order I Rule 8 of the Code of Civil Procedure, 1908 and Section 12 of the Consumer Protection Act, 1986. B.5 Are the Amendments violative of the ‘Pioneer Judgment’ in Pioneer Urban Land and Infrastructure Ltd. and another v. Union of India and others. B.6 Information Asymmetry: How Home Buyers to obtain the information of total allotment. B.7 The First and Second Provisos Classification Down Memory Lane: Article 14 and Reasonable Classification. B.8 Allottees vs. Operational Creditors. B.9 Debenture Holders/Security Holders: The Challenge to the First Impugned Proviso. B.10 3rd Proviso in Section 7 of IBC is retrospective or prospective. B.11 Clarity regarding withdrawal under the Third Proviso. C.1 Interpretation of Section 11 of IBC. C.2 Interpretation of Explanation-I to Section 11 of IBC. C.3 Interpretation of Explanation-II to Section 11 of IBC and nature of the explanation. C.4 The challenge to Explanation-II to Section 11 of the Code. C.4.1 The scope of an Explanation. C.4.2 Is Explanation-II violation of Fundamental Right under Article 14 of the Constitution?. D.1 Interpretation of Section 32A. D.2 Constitutional validity of Section 32A. E.1 Management of the affairs of the corporate debtor will vest with the IRP. E.2 Earlier Liquidation Order under Section 33(2). E.3 Section 14 of the Limitation Act, 1963. E.4 Retrospective Nature of a statue.
