Section 7 Petition Seeking ‘Joint’ CIRP Of Separate Corporate Entities Involved In Common Real Estate Project Is Maintainable: NCLAT Delhi

Three separate companies were engaged in the development of a real estate project. When the construction of units was not completed within time, the Allottees filed a Section 7 petition under IBC, seeking initiation of joint CIRP against all three companies involved. The NCLAT while upholding the maintainability of such Section 7 petition, has observed as under:

“All the three Appellants being involved with the one single project in which the allottees have been allotted units, all are necessary ingredients of any resolution which may help the allottees to receive their units, in absence of any of the appellants in Corporate Insolvency Resolution Process, Resolution of project and revival of the Resolution of project is impossible………We are in agreement with the view expressed by the Adjudicating Authority that Section 7 Application filed against all the three appellants together is maintainable. The three appellants being part of one Common Real Estate Project and the Applicants of Section 7 Application being part of the said project they had every right to initiate Section 7 Application against all the three appellants together.”

Background Facts

On 21.08.2008, Anand Infoedge Pvt. Ltd. (“AIPL”) was allotted land measuring 100,980 sq. mts. situated at Sector 143 Noida (“Project Land”) by the New Okhla Industrial Development Authority (NOIDA) vide Lease Deed. After taking possession of the land, AIPL entered into Collaboration Agreement with Mist Avenue Pvt. Ltd. (“MAPL”) for development of a real estate project named Festival City (“Project”) on the Project Land.

The Respondents (Allottees) entered into Builder Buyer Agreement with MAPL and were allotted units in the Project. In 2017, the first Collaboration Agreement was terminated and a second Collaboration Agreement was executed between AIPL and Mist Direct Sales Private Limited (“MDSPL”) for the development of Project.

Despite of the two collaborations, the Project could not be completed within stipulated timelines. In 2021, Mr. Nitin Batra and several other allottees (Financial Creditors/Allottees) filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (“IBC”), seeking ‘joint’ initiation of Corporate Insolvency Resolution Process (“CIRP”) against AIPL, MAPL and MDSPL.

On 21.10.2022 the NCLT held the Section 7 petition to be maintainable and directed the application to be listed for hearing on 10.11.2022. AIPL, MACL and MDSPL (collectively, “Corporate Debtors/Appellants”) filed an appeal against order dated 21.10.2022 before the NCLAT.

The Corporate Debtors argued that the NCLT does not possess jurisdiction to consolidate the CIRP of three different companies at the stage of admission of Section 7 petition.

Issue

Whether a joint petition under Section 7 of IBC is maintainable against three separate corporate entities?

NCLT Verdict

The Bench opined that all three Appellants (Corporate Debtors) had joined hands to develop the Project and each one of them had undertaken several responsibilities towards Allottees. However, none of them could successfully develop the Project.

It was noted that the construction of the Project will not be achieved if joint insolvency is not initiated against all the three Corporate Debtors and the allottees would be put to severe loss and hardship.

“CIRP in the Real Estate Project has different contours and ramification. It is also on the record that at a time when 2nd Collaboration Agreement was entered between ‘Anand Infoedge Pvt. Ltd.’and ‘Mist Direct’, ‘Anand Infoedge Pvt. Ltd.’ has 99.99% shareholding in ‘Mist Direct’. All three companies who are impleaded as Respondents in Section 7 Application and Appellants before us are closely connected with the construction and implementation of the project. The developer who have issued allotment letter and executed Builder Buyer Agreement was acting on behalf of ‘Anand Infoedge Pvt. Ltd.’ who has given authority to ‘Mist Direct’.”

It was observed that the three Corporate Debtors are intrinsically interwoven with the Project. MAPL and MDSPL were entrusted with development and sale of units and MAPL received the payment from the allottees towards allotment of units.

“All the three Appellants being involved with the one single project in which the allottees have been allotted units, all are necessary ingredients of any resolution which may help the allottees to receive their units, in absence of any of the appellants in Corporate Insolvency Resolution Process, Resolution of project and revival of the Resolution of project is impossible.”

The Bench relied on its earlier judgments in Mamatha v AMB Infrabuild Pvt. Ltd. & Ors., C.A.(AT) Ins. No. 155 of 2018 and Edelweiss Asset Reconstruction Company Ltd. v Sachet Infrastructure Pv.t Ltd., C.A.(AT) Ins. No. 377 of 2019, and opined that consolidated CIRP can be initiated against one or more Corporate Debtors who have come together to develop a project.

Accordingly, it has been held that all three Corporate Debtors being part of one common real estate project and the allottees belonging to the same project, possess the right to seek initiation of joint CIRP against all three Corporate Debtors.

“We are in agreement with the view expressed by the Adjudicating Authority that Section 7 Application filed against all the three appellants together is maintainable. The three appellants being part of one Common Real Estate Project and the Applicants of Section 7 Application being part of the said project they had every right to initiate Section 7 Application against all the three appellants together. We thus uphold the decision of the Adjudicating Authority holding that application under Section 7 is maintainable.”

The appeal has been dismissed.

Case title: Mist Avenue Pvt. Ltd. v Nitin Batra & Ors. and connected matters.

Case No.: Company Appeal (AT) (Insolvency) No. 127 of 2023

Counsel for Appellants: Mr. Dhruv Goel, Mr. Krishnendu Datta (Sr. Advocate), Mr. NPS Chawla, Mr. Surekh Kant Baxy, Ms. Mahima Shekhawat, Mr. Rahul, Mr. Abhijeet Sinha, Mr. Apoorv Agarwal, Ms. Vaishnavi Prakash.

Counsel for Respondent: Mr. Sahil Sethi, Mr. Samriddh Bindal and Mr. Vikash Kumar, Advocates.

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