NCLAT held that: the procedure as followed in “Flat Buyers Association Winter Hills- 77, Gurgaon” shows curtailment of period of resolution without asking for resolution plan from the third party before finalization of the resolution plan. The resolution can be taken even during the corporate insolvency resolution process, if any promoter agrees as an investor to invest the money for keeping the company as a going concern and complete the project within the time frame.
Part of the infrastructure (Apartments/Flats) has already been completed, the allottees i.e., financial creditors were the main beneficiaries of the infrastructure, have already reached settlement with Mr. Rajesh Goyal, the promoter and he as an outsider financial creditor has agreed to invest the amount, not from the account of the Corporate Debtor but from other sources to keep the infrastructure as a going concern. We in exercise of inherent powers conferred under Rule 11 of the NCLAT Rules, 2016, pass the following order:
- ‘Rajesh Goyal’ (Promoter) is directed to cooperate with the Interim Resolution Professional (IRP) and disburse amount (apart from the amount which has already been disbursed) from outside as a lender or financial creditor not as Promoter to ensure that the project is completed within the time frame as given by him. The disbursement of amount which has been made by ‘Rajesh Goyal’ and the amount as will be generated from dues of the Allottees (Financial Creditors) during the Corporate Insolvency Resolution should be deposited in the account of the Company/ Corporate Debtor to keep the company as a going concern. The bank in which the Corporate Debtor/ company has an account, the amount should be deposited only for the purpose of completion of the project. Banks will allow the cheques for encashment only with the counter signature of the IRP.
- The flats/apartments should be completed in all aspect by 30th June, 2020. All internal fit outs for electricity, water connection should be completed by 30th July,2020. The allottees are directed to deposit their balance amount and pay 90% without penal interest, if not deposited, by 15th March, 2020. The Allottees in whose favour possession has been offered and clearance has been given by the competent authority are bound to pay the cost for registration and are directed to deposit registration cost to get the flats/apartments registered after paying all the balance amount in terms of the agreement.
- ‘Rajesh Goyal’ will return the amount to the allottees, who already sought for, within the time frame, i.e., 30% of the principal amount within 90 days and rest 70% of the principal amount within 180 days. The interest be paid to them in the manner as detailed above by 30th August, 2020. The ‘Financial Institutions/Banks’ and ‘Operational Creditors’, if any should be paid simultaneously within the period of 180 days.
- All these processes should be completed by 30th August, 2020. If it is completed, the Corporate Insolvency Resolution Process be closed after intimating it to the NCLT/ adjudicating authority. The resolution cost including fee of the IRP will be borne by the promoter. Only after getting the certificate of completion from the IRP/RP and approval of the adjudicating authority/NCLT, unsold flats/apartments etc. be handed over to the promoter.
- Even during the CIRP, the IRP can also sell the unsold flats/apartments, by way of a Tripartite Agreement between the Purchaser, IRP/RP and Promoter (Rajesh Goyal). The proceeds as may be generated from such sale should be utilized for completion of the project, payment to the financial institutions/ banks, operational creditors and interest as payable to the allottees whose principal amount is to be refunded. Once the project is completed, the IRP will move an application before the adjudicating authority/ National Company Law Tribunal with the report of completion and ask for the disposal of application under Section 7 of the Insolvency & Bankruptcy Code, 2016 filed by Ms. Babita Gupta, Mr. Manoj Kumar Gupta and Ms. Sweta Gupta (Allottees- Financial Creditors).
- However, the ‘promoter’ fails to comply with the undertaking and fails to invest as a financial creditor or does not cooperate with the IRP/RP, the Adjudicating Authority (NCLT) will complete the Insolvency Resolution Process. The appeal stands disposed-off.