Ozone Urbana Infra Developers Pvt. Ltd. and Ors. Vs. Rohit Kumar Chaturdas Patel and Ors. – Karnataka High Court
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In this important judgment, Hon’ble NCLAT clarified following issues:
A. Is NCLAT/NCLT the competent forum to consider whether the association of allottees constituted or not?
B. Is it appropriate on the part of the RP to seek the approval of the CoC in the determination of maintenance fees and recovery of electricity dues?
C. Can after having been present Authorised Representative of allottees in the CoC meetings and exercised their voting rights, the allottees question the authority of the CoC to have made some business decisions?
D. Whether payment of electricity charges being an essential service, such amount can be accounted towards CIRP costs and that the Corporate Debtor is not liable to pay the amount till the completion of the period of moratorium
In this important judgment, Hon’ble NCLAT held that:
(i) Interference in the Resolution Plan by the Adjudicating Authority is permissible when the Resolution Plan violated the provisions of Section 30(2) and the Plan does not conform to requirements as referred to in Section 30(2).
(ii) Regulation 36A (4) of the CIRP Regulations provides that CoC is empowered to specify eligibility. The expression “specify the criteria for prospective resolution applicants”, cannot be read to mean that criteria for all prospective Resolution Applicants has to be same.
(iii) Criteria cannot be discriminatory but reasonable rational classification is not prohibited.
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).
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.
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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.
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.
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