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    IIFL Home Finance Ltd. NCLAT ORDER

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    Sachika Vij

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    © All Rights Reserved
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    IIFL Home Finance Ltd. NCLAT ORDER

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    Sachika Vij
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    6 views7 pages

    IIFL Home Finance Ltd. NCLAT ORDER

    Uploaded by

    Sachika Vij

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    © All Rights Reserved
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    of 7

    NATIONAL COMPANY LAW APPELLATE TRIBUNAL,

    PRINCIPAL BENCH, NEW DELHI

    Comp. App. (AT) (Ins) No. 856 of 2024 & I.A. No. 2958, 3089
    of 2024
    IN THE MATTER OF:
    IIFL Home Finance Ltd. …Appellant

    Versus

    Shiv Nandan Sharma Resolution Professional


    Saha Infratech Pvt. Ltd. …Respondent
    Present:
    For Appellants : Mr. Aditya Madaan, Aishwarya Adlakha,
    Natasha, Adv.
    For Respondent : Mr. Deep Bisht, Adv.

    ORDER

    20.05.2024: I.A. No. 3090 of 2024: This application is filed


    for seeking exemption from filing the certified copy of the impugned
    order. The application is allowed subject to the condition that the
    Appellant shall file the certified copy of the impugned order within
    one month from the date of passing of this order.
    I.A. No. 3091 of 2024: This application is filed for seeking
    exemption from filing typed copies, clear copies of dim/unclear
    and illegible documents as annexures. The application is allowed
    subject to all just exceptions.
    I.A. No. 3089 of 2024: This application is filed for seeking
    condonation of delay of 7 days in filing the present appeal. At this
    stage, Deep Bisht, Adv. for R1 accepts notice in court and submits
    that he does not want to file any reply nor have any objection.
    Consequently, the application is allowed and the delay of 7 days is
    hereby condoned.
    Comp. App. (AT) (Ins) No. 856 of 2024

    This appeal arises from the order dated 23.01.2024, passed


    by the National Company Law Tribunal, New Delhi (in short
    ‘Tribunal’) by which application bearing 6104 of 2023 filed by the
    present Appellant seeking a direction to the Resolution
    Professional to acknowledge or admit their claim and create its
    chart qua the flats being developed by the Corporate Debtor, has
    been dismissed.
    2. The brief facts of this care are that M/s Saha Infratech Pvt.
    Ltd. (Corporate Debtor) was developing a project ‘Amadeus’ in
    Sector 143, Noida. It invited applications for allotment by sale of
    residential apartments.
    3. It is alleged by the Appellant that two flat buyers, namely, Mr.
    Vikas Pandhi (alongwith Mr. Kewal Krishan Pandi and Mrs. Anu
    Pandhi) & Mr. Viond Kumar (alongwith Mrs. Preeti) approached it
    for availing the credit/financial facilities (loan) for purchasing
    units/flats in the aforesaid project. The Appellant has given a table
    in the memo of appeal to indicate the date of sanction letter,
    amount of loan sanctioned and amount disbursed. The said table
    is reproduced as under:-
    4. It is alleged that loan agreements were executed between the
    Appellant as a lender and the flat buyers as a borrower. The loan
    was sanctioned to the borrower against the equitable mortgage
    created on their respective flats. The detail of flats / units secured
    in favour of the appellant by the flat buyers qua the said loan is
    also given in the memo of appeal which is also reproduced as
    under:-
    5. It is further alleged that there was a Quadrapartite
    Agreement amongst Logix city Developers Pvt. ltd. (owner), Saha
    Infratech Pvt. Ltd. (Developer), Mr. Vikas Pandhi and Anu Pandhi
    (Borrower) and India Infoline Housing Finance Limited (IIHFL)
    (Appellant).
    6. A similar agreement was also executed amongst the same
    party on 14.11.2016 pertaining to other flats owned by Vinod
    Kumar and Mrs. Preeti Singh.
    7. In the meanwhile, vide order dated 28.02.2020, the NCLT,
    Delhi admitted CP (IB) – 1781/ND/2018 filed by one Financial
    Creditor under Section 7 of the IBC, 2016 against the Corporate
    Debtor which commenced the CIRP proceedings. Mr. Arun Jain
    was appointed as IRP but later on replaced by the present
    Respondent, namely, Mr. Shiv Nandan Sharma by order dated
    28.02.2020.
    8. It is alleged by the Appellant that vide email dated
    17.08.2023, it filed a claim of Rs. 2,31,50,653.3/- in Form C with
    the Respondent but despite its various letters and reminders, the
    claim was not admitted, therefore, the Appellant filed I.A. No. 6104
    of 2023 before the Tribunal praying for a direction to RP to
    acknowledge/admit their claim and create its chart qua the flats
    being developed by the CD.
    9. The said application has been dismissed, therefore, the
    present appeal has been filed.
    10. Counsel for the Appellant has vehemently argued that since
    the homebuyers purchased the flats with the loan advanced by the
    Appellant and have also mortgaged the said units as a security,
    the Appellant is a secured creditor qua the mortgaged flats but the
    impugned order has extinguished the lawful rights of the secured
    creditor.
    11. We have heard Counsel for the Appellant and after perusal of
    the record, are of the opinion that there is no merit in the
    submission because there is no error in the impugned order as it
    is covered by the decision of this Tribunal delivered in IA No. 1502
    of 2020 and I.A. No. 1503 of 2020 in CA (AT) (Ins) No. 582 of 2020
    decided on 20.12.2021. The relevant portion of the said order has
    been reproduced in the impugned order which we also refer for
    clarity which read as under:-
    “10. It is clear from the principle laid down by the Hon’ble
    Supreme Court in ‘Pioneer Urban Land & Infrastructure
    Ltd. & Anr.’ (Supra) that it is the Home Buyer who should
    be considered as ‘Financial Creditors’ of the ‘Corporate
    Debtor’ whether he has self-financed his flat or has
    exercised his choice of taking a loan from the Bank.
    16. From the aforenoted clause in the tri-partite
    Agreement entered into between the Home Buyer, the
    Axis Bank and the ‘Corporate Debtor’, it is evident that in
    case of any default by the Borrower, the Bank would have
    the right to write to the builder for cancellation of
    Agreement executed between the developer and the
    Borrower, whereafter the Bank shall have the right to pay
    the sale consideration and get the subject property
    registered. There is no material on record to evidence that
    any such cancellation has taken place. The Home Loan
    Agreement read with the Demand Letters and the
    Allotment Letter clearly specify that when there is a
    ‘default’ on behalf of the Home Allottee a penalty interest
    would have to be paid by the allottee to the Bank.
    Therefore, the ‘default’ aspect is to be seen vis-a-vis the
    Home Allottee and the Appellant Bank only. It is
    contended by the Respondent that though the Allotment
    Letter shows that the payments were construction linked,
    the Bank released the entire amount prior to completion
    of construction.
    17. Be that as it may, we are of the considered view that
    this subject matter cannot be viewed from such a narrow
    compass. It is definitely not the scope and objective of the
    Code to include Banks/Financial Institutions which have
    advanced loans to Home Buyers to be considered as
    ‘Financial Creditors’ and included in the CoC, specifically
    in the light of the fact the liability to repay the Home Loan
    is on the individual Home Buyers. This would defeat the
    very spirit and objective of the Code aiming at Resolution
    and maximisation of the assets of the ‘Corporate Debtor’.
    Presence of a mere tri-partite Agreement does not change
    the character of the amount borrowed by the Home Buyer
    vis-a-vis the Bank and vis-a-vis the ‘Corporate Debtor’.
    Viewed from any angle, the Appellant cannot be included
    as a ‘Secured Financial Creditor’ in this case and hence
    we find no reasons to interfere with the well-reasoned
    Order of the Adjudicating Authority.”

    12. Thus, in view of the aforesaid facts and circumstances, we do


    not find any merit in the present appeal which is denuded of any
    merit and the same is hereby dismissed. No costs.

    [Justice Rakesh Kumar Jain]


    Member (Judicial)

    [Mr. Naresh Salecha]


    Member (Technical)

    [Mr. Indevar Pandey]


    Member (Technical)

    Sheetal/Ravi

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