Case: ANAND MURTI Vs. SONI INFRATECH PRIVATE LIMITED &amp; ANR

2. The facts in brief giving rise to the present appeal are as under:3. The appellant herein is the Suspended Director of the Corporate Debtor. The respondent No.2 herein had booked a flat in the housing project launched by the Corporate Debtor. Subsequently, vide a letter dated 31st July, 2018, the respondent No.2 cancelled the booking and demanded refund of the amount of Rs.32,27,591/-- from the Corporate Debtor.4. On failure of the appellant in refunding the amount, the respondent No.2 filed an application under Section 7 of the IBC against the Corporate Debtor for initiation of CIRP before the National Company Law Tribunal, New Delhi (hereinafter referred to as the NCLT). The NCLT vide order dated 22nd November, 2019, admitted the said application and appointed an IRP. The IRP was directed to initiate the CIRP of the Corporate Debtor as per the provisions of the IBC.5. The appellant being aggrieved by the order dated 22nd November, 2019, filed an appeal before the NCLAT, being Company Appeal (AT) (Insolvency) No.1507 of 2019. The NCLAT vide its order dated 19th December, 2019, issued notice and passed an interim order, thereby directing the IRP not to constitute CoC.6. It was submitted by the appellant herein before the NCLAT that he was ready and willing to settle the matter with the respondent No.2. It was further submitted by him that the project was complete almost to the extent of 70--75% and that he had arranged the funds/private financier to complete the project.7. In light of the submission made by the appellant herein, the NCLAT vide order dated 31st January, 2020, directed the appellant herein to file proposed settlement terms/plan disclosing all material particulars with regard to completion of the housing project. Accordingly, the appellant herein submitted/filed the proposed settlement terms/plan on 13th February, 2020. The IRP had submitted his status report a day prior, on 12th February, 2020, stating therein that most of the Allottees decided to have possession of the flats. In the meantime, the appellant settled the matter with the respondent No.2 herein. Despite the settlement with the respondent No.2 and appellants readiness and willingness to complete the project, the NCLAT, vide order dated 26th February, 2020, modified the interim order dated 19th December, 2019 and directed the IRP to go ahead with the constitution of CoC and carry forward the CIRP. The said order dated 26th February, 2020 was passed by the NCLAT on the ground that the settlement arrived at by the appellant was only with the respondent No.2 and the settlement plan did not encompass all the Allottees.8. The appellant therefore approached this Court by way of Civil Appeal No. 1928 of 2020. This Court vide order dated 5th March, 2020, permitted the appellant to approach the NCLAT for modification of the order dated 26th February, 2020, so as to present the settlement plan covering all the Allottees. Vide the said order of this Court dated 5th March, 2020, liberty was also granted to the appellant to approach this Court again in case the modification application was not allowed.9. Pursuant thereto, the appellant filed the modification application being I.A. No.1115 of 2020 in Company Appeal (AT) (Insolvency) No.1507 of 2019 before the NCLAT. However, the NCLAT vide the impugned order dated 22nd November, 2021, has rejected the said application for modification and passed the order as aforesaid. Being aggrieved, the appellant has approached this Court by way of present appeal.

Reasoning: 18. It could thus be seen that though a meeting of various stakeholders was conducted on 23rd October, 2021 in pursuance to the directions issued by the NCLAT dated 29th September, 2021 and in which meeting most of the issues stood resolved, the NCLAT has failed to take into consideration the minutes of the said meeting dated 23rd October, 2021. Not only that, but the NCLAT has also not taken into consideration the Revised Status Report dated 3rd November, 2021 submitted by the IRP.20. The Promoter, Shri Kashi Nath Shukla has also filed an undertaking, thereby undertaking to return the money with interest at the rate of 6% per annum of seven applicants in I.A. No.11358 of 2022 (for impleadment) in the present appeal, who were objecting to the Settlement Plan submitted by the appellant. The same is taken on record and marked X for identification.21. Taking into consideration the facts and circumstances of the present case, we find that it will be in the interest of the home--buyers if the appellant/promoter is permitted to complete the housing project. The salient features of the undertaking given on affidavit are as under:(a) That the project will be completed stage-wise within a period of 6 months to 15 months (+/- 3 months) in a phased manner;(b) That the promoter has arranged an amount of Rs. 10 crores to start the project immediately without any delay and that he will ensure that the project would be started within 15--30 days;(c) That the cost of the flat will not be escalated and that the promoter is agreeable to honour the BBA signed by the previous management;(d) That SBI Cap Ventures Ltd. has already shown interest for further loan of Rs.100 crore;(e) That the promoter has given his consent to make a team of 5 persons, 2 from home-buyers side and 2 from the management side and that the entire process will be monitored by the IRP.22. Taking into consideration the salient features of the undertaking given on affidavit by the Promoter, Shri Kashi Nath Shukla and the fact that there are only seven out of the 452 home--buyers, who opposed the Settlement Plan, we find that it will rather be in the interest of the home--buyers that the appellant/promoter is permitted to complete the project as undertaken by him. It is pertinent to note that he has agreed that the cost of the flat will not be escalated. He has also given the time line within which the project would be completed. Not only this, but he has also undertaken to refund the amount paid by the seven objectors, if they so desire. He has further agreed that there shall be a team of 5 persons, 2 from the home-buyers side and 2 from the management side and that the entire process shall be monitored by the IRP.23. We find that there is every possibility that if the CIRP is permitted, the cost that the home--buyers will have to pay, would be much higher, inasmuch as the offer made by the resolution applicants could be after taking into consideration the price of escalation, etc. As against this, the Promoter has filed a specific undertaking specifying therein that the cost of the flat would not be escalated and that he would honour the BBA signed by the previous management.