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Whether Homebuyers who entered in a separate agreement for providing Monthly Assured Return are also required to meet threshold criteria as per second proviso to Section 7(1) of IBC – Rita Malhotra and Anr. Vs. Orris Infrastructure Pvt. Ltd. – NCLAT New Delhi

/ 21 minutes of reading

In this case, the Corporate Debtor had entered into an Agreement with the Appellants on 24.04.2010 (MOU) for providing Monthly Assured Return (MAR).

The Appellants submitted that the present application has not been filed for default by real estate developer under terms of allotment but for reasons of default under an independent and separate agreement executed between the two parties for MAR.

Hon’ble NCLAT held that:

(i) On a plain reading of the provisions contained in the definition clause under RERA Act, a commercial space/unit allottee is covered under the purview of ‘allottee’ under RERA Act.
(ii) Assured Returns Class of Creditors, they continue to belong to the substratum of ‘allottees’ and therefore continue to be governed by the threshold limit prescribed under second proviso to Section 7(1) of IBC.
(iii) The Appellants cannot be said to go out of the definition of ‘allottees’ merely because they are part of MAR plan or that they should be treated in a different category wherein they are not required to comply with second proviso to Section 7(1).

Whether Homebuyers who entered in a separate agreement for providing Monthly Assured Return are also required to meet threshold criteria as per second proviso to Section 7(1) of IBC – Rita Malhotra and Anr. Vs. Orris Infrastructure Pvt. Ltd. – NCLAT New Delhi Read Post »

Once SARFAESI proceeding have been initiated by Bank, the only remedy for Borrowers who are also homebuyers in this case, lies under Section 17 of the SARFAESI Act – Japneet Kaur Ghuman and Anr. Vs. Union of India and Ors. – Delhi High Court

/ 14 minutes of reading

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Once SARFAESI proceeding have been initiated by Bank, the only remedy for Borrowers who are also homebuyers in this case, lies under Section 17 of the SARFAESI Act – Japneet Kaur Ghuman and Anr. Vs. Union of India and Ors. – Delhi High Court Read Post »

Test of genuine Homebuyers v/s Speculative Homebuyers is relevant only at the stage for the admission of CIRP under Section 7 of the IBC – Everlike Real Estate & Developers Pvt. Ltd Vs. Mr. Mohit Goyal, CA RP of Aadi Best Consortium Pvt. Ltd. and Anr. – NCLAT New Delhi

/ 38 minutes of reading

Hon’ble NCLAT held that:

(i) The Code or the RERA Act, 2016 do not differentiate anywhere between the Homebuyers who purchase units for his own consumption or the Homebuyers or unit purchaser who purchase the multiple units for commercial purposes.
(ii) The issue regarding the genuine Homebuyers v/s Speculative Homebuyers is relevant only at the stage for the admission of CIRP under Section 7 of the Code.
(iii) It becomes clear that whether the homebuyer/ allottee is genuine homebuyer or genuine allottee or speculative homebuyers/ allottee but if he has paid the money for acquisition of such properties or given the advance, such allottee/ homebuyer shall be treated as Financial Creditor in terms of Section 5(8)(f) of the Code.
(iv) No individual homebuyers has any locus to challenge resolution plan if the Resolution Plan which has been approved by voting of more than 50% of voting shares of homebuyers as a class.

Test of genuine Homebuyers v/s Speculative Homebuyers is relevant only at the stage for the admission of CIRP under Section 7 of the IBC – Everlike Real Estate & Developers Pvt. Ltd Vs. Mr. Mohit Goyal, CA RP of Aadi Best Consortium Pvt. Ltd. and Anr. – NCLAT New Delhi Read Post »

Is it number of allottees and not the number of financial creditors relevant for fulfilling the threshold under Section 7 of IBC – Harinder Bashista Vs. Sanjib Kumar and Ors. – NCLAT New Delhi

/ 29 minutes of reading

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Is it number of allottees and not the number of financial creditors relevant for fulfilling the threshold under Section 7 of IBC – Harinder Bashista Vs. Sanjib Kumar and Ors. – NCLAT New Delhi Read Post »

Issue of claim filed in CIRP against payment made in Cash by Homebuyer, claim rejected by RP and upheld upto NCLAT – Devesh Raminklal Thakker Vs. Arun Kapoor – NCLAT New Delhi

/ 5 minutes of reading

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Issue of claim filed in CIRP against payment made in Cash by Homebuyer, claim rejected by RP and upheld upto NCLAT – Devesh Raminklal Thakker Vs. Arun Kapoor – NCLAT New Delhi Read Post »

NCLAT directs that IRP shall not impose any freeze on the account which are under the RERA direction – Vinod Kumar Jha, Directors (Powers Suspended) of Ajnara Realtech Ltd. Vs. Sachin Dhiman and Anr. – NCLAT New Delhi

/ 3 minutes of reading

Hon’ble NCLAT held that it is for the RERA to take appropriate steps and further directions if there is any non-compliance of the RERA direction. Insofar as the projects which are not covered by the order of the RERA dated 30.06.2023, construction shall be carried out under the supervision of the IRP with the assistance of the promoters, directors, staff and employees. We are also of the view that for carrying out the construction which are covered by RERA direction, IRP shall not impose any freeze on the account which are under the RERA direction.

NCLAT directs that IRP shall not impose any freeze on the account which are under the RERA direction – Vinod Kumar Jha, Directors (Powers Suspended) of Ajnara Realtech Ltd. Vs. Sachin Dhiman and Anr. – NCLAT New Delhi Read Post »

Whether Claim against services of publication of advertisement in newspapers can be admitted in the category of Home Buyers (as Financial Debt) in case where Real Estate Company agreed to give possession over Flats by way of a Barter Agreement – Rajasthan Patrika Pvt. Ltd. Vs. Chaya Gupta RP of JSM Devcons Pvt. Ltd. – NCLT Indore Bench

/ 2 minutes of reading

The applicant had provided the services of publication of the advertisement in its newspaper Instead of making cash payment, the corporate debtor had agreed by way of the Barter Agreement to pay it towards the services so provided by way of giving the possession over the said two flats in the project. By virtue of that Barter agreement, the applicant could have been the rightful owner of those two flats but in the case when the project has not been completed, the flats were not physically handover, and the CIRP has been initiated in the case of the Corporate Debtor, the only legitimate option available to the applicant could be by way of filing its claim as operational creditor only.

Whether Claim against services of publication of advertisement in newspapers can be admitted in the category of Home Buyers (as Financial Debt) in case where Real Estate Company agreed to give possession over Flats by way of a Barter Agreement – Rajasthan Patrika Pvt. Ltd. Vs. Chaya Gupta RP of JSM Devcons Pvt. Ltd. – NCLT Indore Bench Read Post »

Whether claims for ‘loss of rent,’ ‘arbitration costs,’ and ‘damages’ by Home allottees would be categorized as Financial Debt under IBC – Mr Jossy Steephen Kattur RP of Kerala Chamber of Commerce and Industries Vs. Phoenix ARC Pvt. Ltd. and Ors. – NCLT Kochi Bench

/ 4 minutes of reading

Hon’ble NCLT Kochi Bench held that:
(i) Whether the liability originates from an arbitral award or a court decree, it would be classified as either financial or operational debt, contingent upon the intrinsic nature of the underlying claim as determined by the arbitral or court proceedings.
(ii) The categorization of creditors under the Code depends on understanding the fundamental nature of the transaction.
(iii) Considering the underlying nature of claims of ‘loss of rent,’ ‘cost of arbitration,’ and ‘damages’, we find it right to reclassify these claims from ‘other creditors’ to “Financial Creditors.”

Whether claims for ‘loss of rent,’ ‘arbitration costs,’ and ‘damages’ by Home allottees would be categorized as Financial Debt under IBC – Mr Jossy Steephen Kattur RP of Kerala Chamber of Commerce and Industries Vs. Phoenix ARC Pvt. Ltd. and Ors. – NCLT Kochi Bench Read Post »

Homebuyers, whether they have an order or Decree from the RERA or who do not have any Decree or order from RERA, belong to same category of Allottees and are required to comply with 2nd Proviso to Section 7(1) of IBC and will not be treated as Decree Holder – Shri Rahul Gyanchandani and Ors. Vs. Parsvnath Landmark Developers Pvt. Ltd. – NCLAT New Delhi

/ 30 minutes of reading

In this important judgment, NCLAT clarified that:
(i) The Homebuyers cannot be said to go out of the definition of allottees merely because they have an order in their favour by RERA and the Homebuyers’ submission that they should be treated in a different category, i.e., category of Decree Holder and are not required to comply with 2nd Proviso to Section 7(1) of IBC, cannot be accepted.
(ii) The Homebuyers even after order of the RERA, directing for refund by the Corporate Debtor, continued to be allottees and they have filed Section 7 Application as Financial Creditor of the Corporate Debtor. They are mandatorily required to comply with 2nd Proviso to Section 7(1) of IBC.
(iii) Homebuyers, whether they have an order or Decree from the RERA or who do not have any Decree or order from RERA, belong to same category of allottees and no distinction can be made on the said ground.

Homebuyers, whether they have an order or Decree from the RERA or who do not have any Decree or order from RERA, belong to same category of Allottees and are required to comply with 2nd Proviso to Section 7(1) of IBC and will not be treated as Decree Holder – Shri Rahul Gyanchandani and Ors. Vs. Parsvnath Landmark Developers Pvt. Ltd. – NCLAT New Delhi Read Post »

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