The NCLAT, New Delhi Bench expounded 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 IBC.

The Bench further ruled that the Resolution Plan may provide different categories of creditors and different payment schemes, as seen in the present case which is valid and legally enforceable.

Brief Facts:

The present appeal has been filed against the order passed by the NCLT vide which the application filed by the Appellant under 60(5) r/w Section 18(b) of the Insolvency and Bankruptcy Code, 2016 (‘IBC’)  r/w Regulation 13 of the IBBI (Insolvency Resolution Process for the Corporate Person) Regulation, 2016 was dismissed.

Contentions of the Appellant:

It was submitted that the Appellant was categorised under category 4 i.e., “Cancelled Units (not having valid BBA)”, whereas he should have been categorised under the category 2 i.e., “Whose Possession of Flats to Flat Owners is pending as on CIRP date”.

The Appellant also filed an FIR against the Corporate Debtor and its directors for criminal breach of trust, cheating and dishonestly.

It was further argued that the MOU has to be covered under agreement to sale or Builder Buyer Agreement under the Real Estate Regulatory Authority Act, 2016 (‘RERA Act’).

Contentions of the Respondent:

It was urged that Appellant had no locus challenging the Resolution Plan approved by the CoC as the Appellant is an individual member of Financial Creditor in a class who challenged the appeal of the Resolution Plan which is impermissible.

Further, there cannot be any different categorisation of such homebuyers.

Observations of the Tribunal:

It was noted that the the IBC 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.

It was expounded 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 IBC.

Noting the content of the MOU, it was held that whenever, any unit, whether commercial or residential, is sold to allottee or homebuyers, the details of such property for which agreement to sale is executed is specified and may include, inter-alia, the name of allottee, payment details, unit details, area, rate, the adjacent unit directions, etc., to make it specific and distinguished unit. In contrast, in the present MOU there is no such details made available.

The Bench ruled that the Resolution Plan may provide different categories of creditors and different payment schemes, as seen in the present case which is valid and legally enforceable.

The decision of the Tribunal:

Accordingly, the appeal was dismissed and the order of NCLT was upheld.

Case Title: Everlike Real Estate & Developers Pvt. Ltd. v. Mr. Mohit Goyal, CA & Anr.

Case No.: Comp. App. (AT) (Ins) No. 978 of 2024

Coram: Justice Rakesh Kumar Jain (Judicial Member), Mr. Naresh Salecha, Mr. Indevar Pandey (Technical Members)

Advocates for Appellant: Advs. Ms. Pooja M. Saigal, Mr. Arpit Dwivedi, Ms. Sakshi Kapoor & Mr. Ishank Jha

Advocates for Respondents: Advs. Mr. Krishnendu Datta,Mr. Arjun Maheshwari, Ms. Niharki Sharma & Mr. Adish Srivastava, Mr. Preetesh Kapur

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