BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

PRINCIPAL BENCH

I.A. NO._____OF 2020

IN
C.P. (I.B) NO. 1756 (PB) OF 2018

IN THE MATTER OF:-

JAGAT PAL PALIWAL & ANOTHER

…FINANCIAL CREDITOR
VERSUS

JASSUM PROPCON PROJECTS PRIVATE LIMITED

(UNDERGOING CORPORATE INSOLVENCY RESOLUTION
PROCESS)
ACTING THROUGH
MR. SAPAN MOHAN GARG,
RESOLUTION PROFESSIONAL …CORPORATE DEBTOR
AND
IN THE MATTER OF:-

1 ABW TOWER CONDOMINIUM ASSOCIATION Applicant No. 1

ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

2 Deepak Bhandari Applicant No. 2

Unit 201A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

3 Arti Jain Applicant No.3

Unit 15
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

4 Arush Applicant No.4

Unit 301
 ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

5 Manjeet Singh Applicant No.5

Unit 202
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

6 Anubahv Jain Applicant No.6

Unit 301A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

7 Mohan Prakash Sharma Applicant No.7

Unit 203A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

8 Rajesh M.K. Rishi Applicant No.8

Unit 203
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

9 Moumohan Applicant No.9

Unit 12A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

10 Poonam Jain Applicant No.10

Unit 405
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

11 Rajesh Yadav Applicant No. 11

Unit 001
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

12 Baij Nath Ram Nath Applicant No. 12

Unit 102
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana
13 Balraj Kapoor Applicant No.13
Unit 103
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

14 Chander Kanta Applicant No.14

Unit 104
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

15 Baij Nath Ram Nath Pvt. Ltd. Applicant No.15

Unit 105
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

16 Rajeev Kapoor Applicant No.16

Unit 106
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

17 Sarb Balraj Kapoor and sons Applicant No.17

Unit 106A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

18 Harish Seth and Madhu Seth Applicant No. 18

Unit 10
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

19 Harish Seth and Madhu Seth Applicant No. 19

Unit 11
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

20 Harish Seth and Madhu Seth Applicant No.20

Unit 12
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

21 Vijai Shankar Lugani Applicant No.21

Unit 403
ABW Tower, IFFCO Chowk , MG Road
 Gurugram, Haryana

22 Varun Khandilwal Applicant No. 22

Unit 306
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

23 Nidhi Sharma Applicant No.23

Unit 005
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

24 Harbir Singh Wirk Applicant No.24

Unit 501
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

25 Harbir Singh Wirk Applicant No.25

Unit 502
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

26 Alok Tanwar Applicant No. 26

Unit 208
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

27 Sunil Jain Applicant No. 27

Unit 505
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

28 Praveen Kamal Taneja Applicant No.28

Unit 406B/407
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

29 Simran Kanwar Applicant No. 29

Unit 511
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

30 Sahil Kanwar Applicant No.30

 Unit 512
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

31 D.K. Maurya Applicant No.31

Unit 209
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

32 Anita Khanna Applicant No.32

Unit 410
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

33 SPS Enterprise Applicant No.33

Unit 206
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

34 Aparajita Kalucha Applicant No.34

Unit 14
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

35 Chander Cazawea Applicant No.35

Unit 401
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

36 Roopa Sood Applicant No.36

Unit 406A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

37 Sandhya Malhotra Applicant No.37

Unit 404
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

38 Rakesh Gupta for Kadimi International Pvt. Ltd. Applicant No.38

Unit 702
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana
39 Uday Gupta Applicant No.39
Unit 205
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

40 Ravinder Nath for Agora Developers Pvt. Ltd. Applicant No.40

Unit 701
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

41 Ravinder Nath for Agora Developers Pvt. Ltd. Applicant No.41

Unit 703
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

42 Ravinder Nath for Agora Developers Pvt. Ltd. Applicant No.42

Unit 704
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

43 Bajrang Lal Bajaj Applicant No.43

Unit 308
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

44 Abha Kashyap Applicant No.44

Unit 305
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

45 Monika Jain Applicant No. 45

Unit 110
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

46 Monika Jain Applicant No.46

Unit 111
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

47 Sushma Chandra Applicant No.47

Unit 207
 ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

48 Kirti Lal Julka Applicant No.48

Unit 007
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

49 Ganeshi Lal Jain Applicant No.49

Unit 008
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

50 Ganeshi Lal Jain Applicant No.50

Unit 009
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

51 Anju Gupta Applicant No.51

Unit 208A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

52 Jyoti Arora Applicant No.52

Unit 204
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

53 Y.R. Sachdeva Applicant No.53

Unit 408
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

54 Siddharth Banerji Applicant No.54

Unit 302A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

55 Siddharth Banerji Applicant No.55

Unit 201/201A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana
56 Sanjeev Yadav and sons Applicant No.56
Unit 002
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

57 M/s Bajaj Auto Ltd. Applicant No.57

Unit 003
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

58 M/s Bajaj Auto Ltd. Applicant No.58

Unit 004
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

59 M/s SPS Enterprise Applicant No.59

Unit 006
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

60 Gursharan Singh and Dapinder Singh Applicant No.60

Unit 101
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

61 Balraj M Kateja Applicant No.61

Unit 107
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

62 Suman Sachdev Applicant No.62

Unit 107A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

63 Manjit Kaur Sawhney and Prithipal Singh Sawhney Applicant No.63

Unit 109
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

64 Air Cargo Express Pvt. Ltd. Applicant No.64

Unit 112
ABW Tower, IFFCO Chowk , MG Road
 Gurugram, Haryana

65 Smt. Seema Gupta Applicant No.65

Unit 112A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

66 Rakesh Gupta Applicant No.66

Unit 114
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

67 DCT Infotech Applicant No.67

Unit 202A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

68 Air Shagoon Pvt. Ltd. Applicant No.68

Unit 302
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

69 Veena Jain Applicant No.69

Unit 303
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

70 Pramod Kumar Jain Applicant No.70

Unit 303A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

71 Shilpi Jain Applicant No.71

Unit 304
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

72 Piyush Jain Applicant No.72

Unit 304A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

73 Ms. Namrata Applicant No.73

 Unit 307
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

74 Anil K Kher Applicant No.74

Unit 402
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

75 Pradeep Kumar HUF and Ashwini Kumar Applicant No.75

Unit 409
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

76 Ritu Sachdeva Applicant No.76

Unit 503
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

77 Kripa Nidhan Singh and Harvinder Singh Applicant No.77

Unit 504A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

VERSUS
MR. SAPAN MOHAN GARG,
RESOLUTION PROFESSIONAL
REGN. NO.: IBBI/IPA-002/IP-N00315/2017-18/10903
JASSUM PROPCON PROJECTS PRIVATE LIMITED
(UNDERGOING CORPORATE INSOLVENCY RESOLUTION
PROCESS)
...RESPONDENT
 BEFORE THE NATIONAL COMPANY LAW TRIBUNAL
PRINCIPAL BENCH
I.A. NO._____OF 2020
IN
C.P. (I.B) NO. 1756 (PB) OF 2018

IN THE MATTER OF:-

JAGAT PAL PALIWAL & ANOTHER

…FINANCIAL CREDITOR
VERSUS

JASSUM PROPCON PROJECTS PRIVATE LIMITED

(UNDERGOING CORPORATE INSOLVENCY RESOLUTION
PROCESS)
ACTING THROUGH
MR. SAPAN MOHAN GARG,
RESOLUTION PROFESSIONAL …CORPORATE DEBTOR
AND
IN THE MATTER OF:-

ABW TOWER CONDOMINIUM ASSOCIATION & ORS.

...Applicants
VERSUS
MR. SAPAN MOHAN GARG,
RESOLUTION PROFESSIONAL
REGN. NO.: IBBI/IPA-002/IP-N00315/2017-18/10903
JASSUM PROPCON PROJECTS PRIVATE LIMITED
(UNDERGOING CORPORATE INSOLVENCY RESOLUTION
PROCESS)
...Respondent

PAPER BOOK
ADVOCATES FOR THE APPLICANTS
 INDEX

Sr. No. Particulars Page No.

1. Application under section 60(5)(c) of the
Insolvency and Bankruptcy Code,2016
seeking appropriate directions of the
Adjudicating Authority against the rejection of
claim by the Respondent and any other relief
along with accompanying affidavit.

2. ANNEXURE CA-1

Registration No. 018/03578/2019 and the

certificate of Registration of Society issued
under Section 9(1) of the Haryana
Registration and Regulation Societies
Act,2012.
3. ANNEXURE CA-2.

Copy of the bye-laws of the Association

4. ANNEXURE CA-3.

The copy of the Sample Allotment Letter

issued by the Corporate Debtor wherein the
clause of IFMSD is mentioned.
5. ANNEXURE CA-4

The copy of the sample Maintenance and

Service Agreement.
6. ANNEXURE CA-5.

The copy of the list of members of

Association along with their dues.
7. ANNEXURE CA-6 (“COLLY”)

The copy of the order of the District

Registrar, Firms and Societies, Gurugram
dated 15.02.2019 and 01.05.2019.
8. ANNEXURE CA-7

The copy of the Letter dated 18.02.2019

issued by the Corporate Debtor.
9. ANNEXURE CA-8.

Copy of the order dated 31.10.2019.

10. ANNEXURE CA-9 Colly.

Copy of the email dated 15.11.2019 and the

reply of the IRP.
11. ANNEXURE CA-10.

Copy of the email dated 29.11.2019.

12. ANNEXURE CA-11.

Copy of the E-mail dated 03.12.2019.

13. ANNEXURE CA-12.

Copy of the E-mail dated 06.12.2019.

14. ANNEXURE CA-13.

Form CA & Enclosures-ABW Tower

Condominium Association- set of documents
Part 1
15. ANNEXURE CA-14.

Form CA & Enclosures-ABW Tower

Condominium Association- set of documents
Part 2
16. ANNEXURE CA-15.

Form CA & Enclosures-ABW Tower

Condominium Association- set of documents
Part 3
17. ANNEXURE CA-16.

The Reply of the RP vide E-mail dated

27.12.2019.
18. ANNEXURE CA-17.

The copy of the reminder E-mail dated

03.01.2020.
19. ANNEXURE CA- 18.

The Copy of the E-mail dated 04.01.2020.

20. ANNEXURE CA- 19.

Form CA & Enclosures-ABW Tower

Condominium Association- set of documents
1.2
21. ANNEXURE CA- 20.

Form CA & Enclosures- ABW Tower

Condominium Association- set of documents
1.2
22. ANNEXURE CA- 21

Form CA & Enclosures- ABW Tower

Condominium Association- set of documents
1.2
23. ANNEXURE CA- 22

Form CA & Enclosures- ABW Tower

Condominium Association- set of documents
1.2
24. ANNEXURE CA- 23

Form CA & Enclosures- ABW Tower

Condominium Association- set of documents
1.2
25. ANNEXURE CA-24.

The copy of the E-mail dated 30.01.2020.

26. ANNEXURE CA-25.

A copy of the Application being I.A-1318

(PB)2020 dated 17.02.2020 filed by the
Applicant under Section 60(5) ( c ) of the
Insolvency and Bankruptcy Code, 2016
before the Hon’ble NCLT

27. ANNEXURE CA-26.

A copy of the order dated 20.02.2020 passed

by the Hon’ble NCLT

28. ANNEXURE CA-27.

 A copy of the reply dated 03.03.2020 filed on
behalf of the Resolution Professional to the
Application filed by the Applicant.

29. ANNEXURE CA-28.

A copy of the order dated 04.03.2020

passed by the Hon’ble NCLT

30. ANNEXURE CA-29

A copy of the Authority Letter dated

06.03.2020

31. ANNEXURE CA-30.

Deed of Conveyance dated 27.12.2009

between the Corporate Debtor and one of
the allotees/owners of units at ABW Tower,
IFFCO Chowk, MG Road, Gurugram,
Haryana

32. ANNEXURE CA-31.

A copy of the e-mail dated 07.04.2020

addressed by the Resolution Professional

33. ANNEXURE CA-32.

A copy of the reply dated 10.04.2020

addressed by the Resolution Professional

34. Annexure CA-33 (Colly).

A copy of the said balance sheet for the year

2010-2011, 2011-2012, 2012-2013, 2013-
2014.
35. Annexure CA-34

A true copy of the Information provided, by

Municipal Corporation Gurugram to Sh.
Prabhakaran Singh vide its Office Memo
bearing No. AE (Advt)/MCG/2019/40632
 dated 25.11.2019
36. ANNEXURE CA-35

A true copy of the order dated 27.11.2019

passed by the Hon’ble High Court of Delhi in
ARB. A No. 2/2019

37. ANNEXURE CA-36

True copy of email dated 23.04.2020 sent by
the Respondent RP Sapan Mohan Garg to
Mohit Bhola, Authorized Representative of
Honda Motorcycles & Scooter India Pvt Ltd
38 Affidavits
39 Vakalatnama(s)
40 Proof of Service

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

PRINCIPAL BENCH
I.A. NO._____OF 2020
IN
C.P. (I.B) NO. 1756 (PB) OF 2018

IN THE MATTER OF:-

JAGAT PAL PALIWAL & ANOTHER
…FINANCIAL CREDITOR
VERSUS

JASSUM PROPCON PROJECTS PRIVATE LIMITED

(UNDERGOING CORPORATE INSOLVENCY RESOLUTION
PROCESS)
ACTING THROUGH
MR. SAPAN MOHAN GARG,
RESOLUTION PROFESSIONAL
…CORPORATE DEBTOR

MEMO OF PARTIES

1 ABW TOWER CONDOMINIUM ASSOCIATION Applicant No. 1

ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

2 Deepak Bhandari Applicant No. 2

Unit 201A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

3 Arti Jain Applicant No.3

Unit 15
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

4 Arush Applicant No.4

Unit 301
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

5 Manjeet Singh Applicant No.5

Unit 202
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

6 Anubahv Jain Applicant No.6

Unit 301A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana
7 Mohan Prakash Sharma Applicant No.7
Unit 203A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

8 Rajesh M.K. Rishi Applicant No.8

Unit 203
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

9 Moumohan Applicant No.9

Unit 12A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

10 Poonam Jain Applicant No.10

Unit 405
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

11 Rajesh Yadav Applicant No. 11

Unit 001
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

12 Baij Nath Ram Nath Applicant No. 12

Unit 102
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

13 Balraj Kapoor Applicant No.13

Unit 103
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

14 Chander Kanta Applicant No.14

Unit 104
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

15 Baij Nath Ram Nath Pvt. Ltd. Applicant No.15

Unit 105
 ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

16 Rajeev Kapoor Applicant No.16

Unit 106
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

17 Sarb Balraj Kapoor and sons Applicant No.17

Unit 106A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

18 Harish Seth and Madhu Seth Applicant No. 18

Unit 10
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

19 Harish Seth and Madhu Seth Applicant No. 19

Unit 11
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

20 Harish Seth and Madhu Seth Applicant No.20

Unit 12
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

21 Vijai Shankar Lugani Applicant No.21

Unit 403
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

22 Varun Khandilwal Applicant No. 22

Unit 306
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

23 Nidhi Sharma Applicant No.23

Unit 005
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana
24 Harbir Singh Wirk Applicant No.24
Unit 501
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

25 Harbir Singh Wirk Applicant No.25

Unit 502
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

26 Alok Tanwar Applicant No. 26

Unit 208
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

27 Sunil Jain Applicant No. 27

Unit 505
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

28 Praveen Kamal Taneja Applicant No.28

Unit 406B/407
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

29 Simran Kanwar Applicant No. 29

Unit 511
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

30 Sahil Kanwar Applicant No.30

Unit 512
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

31 D.K. Maurya Applicant No.31

Unit 209
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

32 Anita Khanna Applicant No.32

Unit 410
ABW Tower, IFFCO Chowk , MG Road
 Gurugram, Haryana

33 SPS Enterprise Applicant No.33

Unit 206
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

34 Aparajita Kalucha Applicant No.34

Unit 14
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

35 Chander Cazawea Applicant No.35

Unit 401
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

36 Roopa Sood Applicant No.36

Unit 406A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

37 Sandhya Malhotra Applicant No.37

Unit 404
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

38 Rakesh Gupta for Kadimi International Pvt. Ltd. Applicant No.38

Unit 702
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

39 Uday Gupta Applicant No.39

Unit 205
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

40 Ravinder Nath for Agora Developers Pvt. Ltd. Applicant No.40

Unit 701
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

41 Ravinder Nath for Agora Developers Pvt. Ltd. Applicant No.41

 Unit 703
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

42 Ravinder Nath for Agora Developers Pvt. Ltd. Applicant No.42

Unit 704
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

43 Bajrang Lal Bajaj Applicant No.43

Unit 308
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

44 Abha Kashyap Applicant No.44

Unit 305
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

45 Monika Jain Applicant No. 45

Unit 110
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

46 Monika Jain Applicant No.46

Unit 111
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

47 Sushma Chandra Applicant No.47

Unit 207
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

48 Kirti Lal Julka Applicant No.48

Unit 007
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

49 Ganeshi Lal Jain Applicant No.49

Unit 008
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana
50 Ganeshi Lal Jain Applicant No.50
Unit 009
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

51 Anju Gupta Applicant No.51

Unit 208A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

52 Jyoti Arora Applicant No.52

Unit 204
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

53 Z. R. Sachdeva Applicant No.53

Unit 408
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

54 Siddharth Banerji Applicant No.54

Unit 302A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

55 Siddharth Banerji Applicant No.55

Unit 201/201A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

56 Sanjeev Yadav and sons Applicant No.56

Unit 002
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

57 M/s Bajaj Auto Ltd. Applicant No.57

Unit 003
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

58 M/s Bajaj Auto Ltd. Applicant No.58

Unit 004
 ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

59 M/s SPS Enterprise Applicant No.59

Unit 006
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

60 Gursharan Singh and Dapinder Singh Applicant No.60

Unit 101
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

61 Balraj M Kateja Applicant No.61

Unit 107
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

62 Suman Sachdev Applicant No.62

Unit 107A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

63 Manjit Kaur Sawhney and Prithipal Singh Sawhney Applicant No.63

Unit 109
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

64 Air Cargo Express Pvt. Ltd. Applicant No.64

Unit 112
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

65 Smt. Seema Gupta Applicant No.65

Unit 112A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

66 Rakesh Gupta Applicant No.66

Unit 114
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana
67 DCT Infotech Applicant No.67
Unit 202A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

68 Air Shagoon Pvt. Ltd. Applicant No.68

Unit 302
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

69 Veena Jain Applicant No.69

Unit 303
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

70 Pramod Kumar Jain Applicant No.70

Unit 303A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

71 Shilpi Jain Applicant No.71

Unit 304
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

72 Piyush Jain Applicant No.72

Unit 304A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

73 Ms. Namrata Applicant No.73

Unit 307
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

74 Anil K Kher Applicant No.74

Unit 402
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

75 Pradeep Kumar HUF and Ashwini Kumar Applicant No.75

Unit 409
ABW Tower, IFFCO Chowk , MG Road
 Gurugram, Haryana

76 Ritu Sachdeva Applicant No.76

Unit 503
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

77 Kripa Nidhan Singh and Harvinder Singh Applicant No.77

Unit 504A
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

78 Satish Kumar Virmani and Sunena Virmani Applicant No.78

Unit 504B
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

79 Vinay Raj Aggarwalla and Kamma Raj Aggarwalla Applicant No.79

Unit 506
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

80 Naveen Kumar Suri Applicant No.80

Unit 507
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

81 M/s Balaji Security Service Pvt. Ltd. Applicant No.81

Unit 508
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

82 M/s Emrald Estate (P)Ltd. Applicant No.82

Unit 509
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

83 M/s Supreme Infrastructure India Ltd. Applicant No.83

Unit 510
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

84 Premium Estate Pvt. Ltd. Applicant No.84

 Unit 601 to 604
ABW Tower, IFFCO Chowk , MG Road
Gurugram, Haryana

[PLEASE SELECT THE OWNERS WHO WOULD

LIKE TO JOIN]

VERSUS

2. MR. SAPAN MOHAN GARG,

RESOLUTION PROFESSIONAL
REGN. NO.: IBBI/IPA-002/IP-N00315/2017-18/10903
email ID: [email protected]
MOB.: 9810502994
ADD: D-54, First Floor,
Defence Colony, Delhi, 110024.
ACTING FOR
JASSUM PROPCON PROJECTS PRIVATE LIMITED
(UNDERGOING CORPORATE INSOLVENCY RESOLUTION
PROCESS)
...Respondent

APPLICATION UNDER SECTION 60(5)(C) OF THE INSOLVENCY

AND BANKRUPTCY CODE, 2016 SEEKING APPROPRIATE
DIRECTIONS OF THE ADJUDICATING AUTHORITY AGAINST THE
REJECTION OF CLAIM BY THE RESPONDENT AND ANY OTHER
RELIEF.

1. That the instant Application under Section 60(5)(c) of the

Insolvency and Bankruptcy Code, 2016 is moved by the ABW

Tower Condominium Association (“Association/RWA”), which is

an Association formed by the unit owners/allottees of ABW Tower

situated at IFFCO Chowk, MG Road, Gurugram, Haryana (‘ABW

Tower/Complex’) and is duly registered under the Haryana

Registration and Regulation Societies Act, 2012 vide Registration

 bearing No. 018/03578/2019 alongwith various owners of ABW

Tower against the rejection of claim by the Resolution Professional

(“Respondent/RP”) filed by the Association on 10.04.2020.

2. That ABW Tower is the sole project of the Corporate Debtor and

the said tower comprises of 83 shops/ units. Out of the aforesaid

shops/ units, 48 such owners are members of the Association.

3. That one of the objects of the Association as provided in the bye-

laws is to act as the Association of Unit Owners of the building

complex called the ABW Tower/Complex).

4. That Section 2 and 24 of the Haryana Apartment Ownership Act,

1983 (as amended) is an Act to provide for laws pertaining to the

ownership of an individual apartment in a building and matters

connected therewith which makes it quite vivid that all apartment

owners, tenants of such owners, employees of owners and tenants

or any other person who may in any manner use property or any

part therefore, shall be subject to the provisions of the Haryana

Apartment Ownership Act, 1983 (as amended) and to the

declaration and the bye-laws of the association of apartment

owners i.e the rules of RWA.

5. Therefore, all the 83 unit owners/allottees of the Applicant

Association are subject to the provisions of the Haryana Apartment

Ownership Act, 1983 (as amended) and to the declaration and the
 bye-laws of the Applicant Association.

6. Furthermore, the Applicant Association by virtue of being a trustee

of the members of the Applicant association (i.e. the unit

holders/allottees) vide the bye laws has the right to recover, retain

and expend the IFMSD as well as maintenance security paid by

the unit holder/allottees to the Corporate Debtor.

7. That the Applicant Association , along with other owners/allotees

of Complex are constrained to move the present Application on the

following grounds:-

i) That the claim of the Association has been wrongly rejected

by the Respondent citing the reason that the said claim can

only be filed by the creditor itself and not by any

representative of the creditor.

ii) That the claim of the Association has been wrongly rejected

on the ground that the claim fails to satisfy the requirement of

Section 5(8) of IBC in absence of any debt being disbursed

against consideration for time value of money.

iii) That the Resolution Professional erred in holding that the

claims are required to be filed by each creditor independently

under the category " Creditors ( Other than Financial creditor

and operational creditors) and that each unit buyers should

submit their claims in FORM-F.

 BRIEF FACTS

8. Applicant is a Registered RWA: That the instant Application is

moved by the Association duly registered with Haryana

Registration and Regulation Societies Act,2012 vide Registration

No. 018/03578/2019. A copy of the Certificate of Registration of

Society issued under Section 9(1) of the Haryana Registration and

Regulation Societies Act,2012 is annexed with the instant

Application and marked as ANNEXURE CA-1. Further enclosed is

a copy of the bye-laws of the Association as ANNEXURE CA-2

9. Funds collected by Corporate Debtor in 2005-06 and yet not

returned: That the Corporate Debtor in the year 2005-06 had

invited applications for the Allotment of Shops/ other Commercial

spaces(s) in the project ABW Tower at Village Sukhrauli, Tehsil

and District Gurgaon (Haryana) (“ABW Towers”).

10. IFMSD of Rs. 2,72,21,561/- collected from 83 Allottees and

members of RWA: That the Corporate Debtor while executing the

Allotment letter/ Agreement (“Allotment Agreement”) had

charged the Interest Free Maintenance Security Deposit @ 200/-

per Sq. ft. of the super area (“IFMSD”). The said amount was over
 and above the total consideration of the cost of the Commercial

Space. In addition to the above, the said amount was transferable

consequent upon transfer of the said Unit(s).

11. It is humbly submitted that the total dues toward the IFMSD is Rs.

2,72,21,561/- (Rupees Two crore Seventy Two Lacs Twenty One

Thousand Five hundred and Sixty one only). The copy of the

Sample Allotment Letter issued by the Corporate Debtor wherein

the clause of IFMSD is mentioned is annexed and marked

herewith as ANNEXURE CA-3.

12. Maintenance Security of Rs. 81,25,636.02/- also collected from

83 Allottees and members of RWA: That in addition to the

above-mentioned payment of IFMSD in terms of the Allotment

Agreement, the members and the Allottees of the Applicant

Association further executed the Maintenance and Service

Agreement (“MSA”) whereby the members and Allottees

deposited a further refundable Interest Free Maintenance Security

equivalent to 3 months maintenance charges at the rate of

Rs.19.90/- per sq. ft. per month (“Maintenance Security”).

13. It is humbly submitted that the total dues towards the Maintenance

Security aggregates to a sum of Rs. 81,25,636.02/- (Rupees

Eighty-One Lacs Twenty-Five Thousand Six Hundred and Thirty-

Six and Two Paise Only). The copy of the sample Maintenance
 and Service Agreement is annexed herewith as ANNEXURE CA-

4.

14. Total Principal outstanding of Rs. 3,53,47,197/- along with

Interest of Rs. 3,39,33,309/- aggregating to Rs. 6,92,80,506/-:

That the total outstanding inclusive of both the transaction along

with interest @12% is Rs 6,92,80,506 (Three Crore Ninety-Two

Lakhs Eighty Thousand Five Hundred Six Only). The copy of the

list of members of Association along with their dues is annexed

herewith as ANNEXURE CA-5.

15. Possession delivered in May 2009: That in the instant case the

possession has already been delivered to the members and the

allottees of the Association and the same is not in dispute in the

present case. Moreover, all the members and allottees of the

Applicant have duly transferred the Amount of IFMSD and

Maintenance Security to the Corporate Debtor and the same has

never been disputed by the Respondent.

16. Amounts unpaid despite adjudication and directions by

Competent Authority, District Registrar, Gurugram: That the

District Registrar, Firms and Societies, Gurugram had directed the

Corporate Debtor to handover the IFMSD and Maintenance

Security to the RWA Association vide Memo No.

GGM/DIC/DR/310 dated 15.02.2019 and 01.05.2019. It was also

 directed to handover the entire ABW Tower along with relevant

records to the Governing body of RWA. A copy of the order of the

District Registrar, Firms and Societies, Gurugram dated

15.02.2019 and 01.05.2019 is annexed and marked herewith as

ANNEXURE CA-6 (“COLLY”)

17. Amounts are admitted by the Corporate Debtor as payable to

Applicant RWA : That pursuant to the order and directions of the

District Registrar, Firms and Societies, Gurugram, the Corporate

Debtor handed over the constructive and legal possession to the

Applicant Association and sought some more time to reconcile the

statements to release the IFMSD and Maintenance Security to the

RWA. The copy of the Letter dated 18.02.2019 issued by the

Corporate Debtor is annexed herewith and marked as

ANNEXURE CA-7.

18. IFMSD became payable to RWA on 18.02.2019: That upon

handover of the maintenance of Complex by the Corporate Debtor

to the Applicant Association on 18.02.3019, RWA became legally

entitled to receive the IFMSD from the Corporate Debtor and the

said IFMSD amount crystallised into a financial debt owed by the

Corporate Debtor.

19. That it is submitted that the claims in respect of the amounts,

which were disbursed by the members and Allottees of the

 Association in respect of above transactions, were duly submitted

by the Association on behalf of the members and Allottees to the

Respondent in Form CA and the chronology of the events leading

to rejection of the claim are as follows: -

CHRONOLOGY OF EVENTS LEADING TO THE REJECTION OF

CLAIM BY THE RESOLUTION PROFESSIONAL

`

20. That vide order dated 31.10.2019 this Hon’ble Adjudicating

Authority while admitting the petition under Section 7 of the

Insolvency and Bankruptcy Code, 2016 filed by the Financial

Creditor/ Jagat Pal Paliwal; initiated the insolvency proceeding

against Jassum Propcon Projects Private Limited (“Corporate

Debtor”) and appointed one Mr. Sapan Mohan Garg as the

Interim Resolution Professional (“IRP/Respondent”). A copy of

the order dated 31.10.2019 is annexed with the instant Application

and marked as ANNEXURE CA-8.

21. That it is pertinent to mention that the Corporate Debtor, Jassum

Propcon Projects Private Limited was originally incorporated on

05.12.1984, under the Companies Act, 1956 (No. 1 of 1956) as

Gangotri Leasing and Finance Limited. Upon an application made

for conversion into a Private Company under Section 31(1) of the

Companies Act, 1956; and upon approval of Central Government

 signified in writing having been accorded thereto by the RoC-Delhi

(CGO) vide SRN A94349552 dated 19.10.2010, the name of the

said company was changed to Jassum Propcon Projects Private

Limited.

22. That vide email dated 15.11.2019 the Applicant requested the

Respondent to send the Public Announcement along with the

Relevant Claimant Form in order to file their Claim to which the

Respondent replied that the appointment is not in his knowledge

as the same was never conveyed to him. The copy of the email

dated 15.11.2019 and the reply of the Respondent is annexed

herewith as ANNEXURE CA-9 Colly.

23. That pursuant to the Public Announcement the Applicant moved

the FORM CA for submission of claim by Financial creditor in a

class dated 28.11.2019 vide email dated 29.11.2019 along with all

the relevant documents to the Respondent. The copy of the email

dated 29.11.2019 is annexed herewith as ANNEXURE CA-10.

24. That vide e-mail dated 03.12.2019 the Respondent acknowledged

the receipt of the e-mail dated 29.11.2019 and in the same e-mail

the Respondent raised an objection stating that the claim of the

Applicant does not come under the definition of financial debt since

the amount claimed by the Applicant is interest free loan; hence

cannot be considered as Financial Debt.

25. That it is pertinent to note that the Respondent in the same e-mail

had advised the Applicant that the debts can be considered to be

of the nature of other debts, since they are neither operational

debts nor financial debts and in terms of provisions of Regulation

9A of The Insolvency and Bankruptcy Board of India (Insolvency

Resolution Process for Corporate Persons) Regulation, 2016, a

creditor, other than financial creditor or operational creditor, has to

furnish his claim in Form-F.The copy of the E-mail dated

03.12.2019 is annexed herewith as ANNEXURE CA-11.

26. That the Applicant vide e-mail dated 06.12.2019 replied to the e-

mail dated 03.12.2019 received from Respondent and clarified that

the claim of the Applicant does fall under the category of Financial

Debt. The copy of the E-mail dated 06.12.2019 is annexed

herewith and marked as ANNEXURE CA-12.

27. That in continuation of the e-mail dated 06.12.2019, the Applicant

sent the following e-mails to the Respondent with the supporting

documents to substantiate the claims in respect of all the

members/non-members of the Applicant: -

S.N Date of E-mail Heading of the email Annexure

o
1. 23.12.2019 Form CA & Enclosures- ANNEXURE

ABW Tower CA-13

 Condominium

Association- Set of

Documents Part 1
2. 23.12.2019 Form CA & Enclosures- ANNEXURE

ABW Tower CA-14

Condominium

Association- Set of

Documents Part 2
3. 23.12.2019 Form CA & Enclosures- ANNEXURE

ABW Tower CA-15

Condominium

Association- Set of

Documents Part 3

28. It is relevant to mention here that the Committee of Creditor of the

Corporate Debtor further confirmed the appointment of Mr. Sapan

Mohan Garg as the “Resolution Professional” in the meeting held

on 12.12.2019.

29. That the Respondent after perusing the above-mentioned

documents which were sent in 3 parts, replied vide e-mail dated

27.12.2019 and pointed out certain discrepancies and further

asked for documents to substantiate the claim. The reply of the

Respondent vide e-mail dated 27.12.2019 is annexed herewith as

 ANNEXURE CA-16.

30. That another remainder e-mail dated 03.01.2020 was sent to the

Applicant. The copy of the reminder E-mail dated 03.01.2020 is

annexed herewith as ANNEXURE CA-17.

31. That the Applicant vide e-mail dated 04.01.2020 replied to

Respondent and informed that the collection of required

documents is in process and that the same will be submitted soon.

The copy of the e-mail dated 04.01.2020 is annexed herewith as

ANNEXURE CA- 18.

32. That in relation to the queries raised by the Respondent vide e-

mail dated 27.12.2019 the Applicant submitted the relevant

documents through the following email: -

S. No Date of E-mail Heading of E-Mail Annexure

1. 11.01.2020 Form CA & Annexure

Enclosures-ABW CA-19

Tower Condominium

Association- Set of

Documents 1.2
2. 15.01.2020 Form CA & Annexure

Enclosures- ABW CA-20

Tower Condominium

Association- Set of
 documents 1.2
3. 16.01.2020 Form CA & Annexure

Enclosures-ABW CA-21

Tower Condominium

Association- Set of

Documents 1.2
4. 20.01.2020 Form CA & Annexure

Enclosures- ABW CA-22

Tower Condominium

Association- Set of

Documents 1.2
5. 29.01.2020 Form CA & Annexure

Enclosures- ABW CA-23

Tower Condominium

Association- Set of

Documents 1.2

33. That after providing all the documents as desired by the

Respondent vide e-mail dated 27.12.2019, the Respondent on

30.01.2020 rejected the claim of the Applicant stating that the

amounts claimed are ‘interest free security deposits’ having no

commercial effect of borrowing and accordingly, the claims do not

fall within the definition of ‘financial debt’ under Section 5(8) of the

Insolvency and Bankruptcy Code, 2016 . The copy of the e-mail

 dated 30.01.2020 is annexed herewith and marked as

ANNEXURE CA-24.

34. Being aggrieved by the erroneous rejection of the Applicant’s claim

by the RP/Respondent, the Applicant filed an application being I.A-

1318 (PB)2020 in (IB)- 1756(PB)/2018 titled ‘ABW Tower

Condominium Association Vs. Mr. Sapan Mohan Garg, Resolution

Professional’ under Section 60(5)(c) of the Insolvency and

Bankruptcy Code, 2016 before this Hon’ble Adjudicating Authority

seeking for appropriate directions against the rejection of claim by

the RP/Respondent and for any other reliefs. True copy of the

Application being I.A-1318(PB)2020 in (IB)- 1756(PB)/2018 titled

‘ABW Tower Condominium Association Vs. Mr. Sapan Mohan

Garg, Resolution Professional’ filed by the Applicant under

Section 60(5)(c) of the Insolvency and Bankruptcy Code, 2016

before the Hon’ble National Company Law Tribunal, New

Delhi(without annexures) is annexed herewith and marked as

ANNEXURE CA- 25.

35. That on 20.02.2020, the Hon’ble National Company Law Tribunal,

New Delhi issued notice of the above mentioned application to the

Resolution Professional for 04.03.2020. A copy of the order dated

20.02.2020 passed by the Hon’ble NCLT is annexed herewith and

marked as ANNEXURE CA- 26.

36. That pursuant to the order of the the Hon’ble National Company

Law Tribunal, New Delhi dated 20.02.2020, the Resolution

Professional filed its reply to the Application filed by the Applicant

herein under Section 60(5) ( c ) of the Insolvency and Bankruptcy

Code, 2016 on 03.03.2020.

37. That along with the copy of the reply, the Respondent enclosed a

legal opinion dated 24.01.2020 on the basis of which it rejected the

claim of the Applicant vide email dated 30.01.2020. It is relevant to

mention here that the Respondent sought a legal opinion on

whether the amounts being claimed by the Applicant have

commercial effect of borrowing. A copy of the reply dated

03.03.2020 filed on behalf of the Resolution Professional to the

Application filed by the Applicant herein under Section 60(5) ( c ) of

the Insolvency and Bankruptcy Code, 2016; wherein the

Respondent also attached the legal opinion dated 24.01.2020 is

annexed herewith and marked as ANNEXURE CA- 27.

38. That vide order dated 04.03.2020, the Application bearing IA-

1318(PB)/2020 was dismissed as withdrawn with liberty to proceed

in accordance with law. A copy of the order dated 04.03.2020

passed by the Hon’ble NCLT is annexed herewith and marked as

ANNEXURE CA- 28.

39. That on 06.03.2020, 54 owners/allottees, irrevocably authorized

 the Applicant Association to recover, retain and expend the

Interest Free Maintenance Security Deposit (“IFMSD”) as well as

the Maintenance Security paid by the undersigned to the

Corporate Debtor/Jassum Propcon Projects Private Limited in

terms of the Allotment Letter, Space Buyer Agreement and

Maintenance and Security Agreement along with interest. A copy

of the Authority Letter dated 06.03.2020 is herein enclosed as

ANNEXURE CA-29. Furthermore, enclosed is a Deed of

Conveyance dated 27.12.2009 between the Corporate Debtor and

one of the allotees/owners of units at ABW Tower, IFFCO Chowk,

MG Road, Gurugram, Haryana for the kind perusal of this Hon’ble

Court as ANNEXURE CA-30.

40. It is pertinent to mention here that the Applicant herein addressed

a mail to the Resolution Professional dated 07.04.2020 wherein

the Applicant requested the Resolution Professional to  make the

best estimate of the amount of the claim based on the

information available with them in terms of the Authority Letter

as mentioned in the aforesaid paragraph .A copy of the e-mail

dated 07.04.2020 addressed by the Resolution Professional is

herein enclosed as ANNEXURE CA-31.

41. That in its reply dated 10.04.2020; to the above mentioned mail,

the Resolution Professional stated that the Authorization Letter

 06.03.2020 cannot form the basis of claim in terms of the

provisions of IBC and there is no recognition of filing claim by any

Authorized Representative. The Resolution Professional further

held that the claim of the Applicant failed to satisfy the requirement

of Section 5(8) of the Insolvency and Bankruptcy Code, 2016; in

absence of any debt being disbursed against consideration for

time value of money. A copy of the reply dated 10.04.2020

addressed by the Resolution Professional is herein enclosed as

ANNEXURE CA-32.

42. That being aggrieved by the erroneous rejection of the Applicant’s

claim by the RP/Respondent, the Applicants have filed the present

application in (IB)- 1756(PB)/2018 under Section 60(5)(c) of the

Insolvency and Bankruptcy Code, 2016 before this Hon’ble

Adjudicating Authority seeking for appropriate directions against

the rejection of claim by the RP/Respondent and for any other

reliefs.

SUBMISSIONS OF THE APPLICANT

A. THE APPLICANT ASSOCIATION IS A FINANCIAL CREDITOR AS

PER THE DEFINITION OF FINANCIAL CREDITOR PROVIDED IN
THE INSOLVENCY AND BANKRUPTCY CODE,2016.

43. That in the instant case, all the unit owners/allottees of the

Applicant Association had duly transferred the amount of IFMSD

 and Maintenance Security to the Corporate Debtor and the same

has never been disputed by the Respondent.

44. That on 6th June, 2018, the Government of India amended the

Insolvency and Bankruptcy Code, 2016 (IBC) through the

Insolvency and Bankruptcy Code Amendment Ordinance, 2018.

The Amendment Ordinance was permanently incorporated into the

IBC through the Insolvency and Bankruptcy (Second Amendment)

Act, 2018 (2018 Amendment) passed by Parliament on 17th

August, 2018.

45. That the 2018 Amendment used a deeming fiction to bring

‘allottees’ within the scope of the definition of ‘financial creditor’.

This was done by inserting an “Explanation” under clause (f) of

sub-Section (8) of Section 5 which defines ‘financial debt’. The

explanation deems moneys given by allottees to a builder/real

estate developer to be amounts having the ‘commercial effect of a

borrowing’. Since ‘financial creditors’ are defined to mean persons

to whom a ‘financial debt’ is owed, the 2018 Amendment gives an

allottee the status of a financial creditor under the IBC.

46. In this context it is pertinent to stipulate Section 5(8) of the IBC,

2016 here under:

5. Definitions. – In this Part, unless the context otherwise

requires, –
(8) “financial debt” means a debt along with interest, if any,
 which is disbursed against the consideration for the time
value of money and includes–
(f) any amount raised under any other transaction, including
any forward sale or purchase agreement, having the
commercial effect of a borrowing;
[Explanation. -For the purposes of this sub-clause, - (i)
any amount raised from an allottee under a real estate
project shall be deemed to be an amount having the
commercial effect of a borrowing; and
(ii) the expressions, “allottee” and “real estate project”
shall have the meanings respectively assigned to
them in clauses (d) and (zn) of section 2 of the Real
Estate (Regulation and Development) Act, 2016 (16 of
2016);]

47. An ‘allottee’ has been defined under Section 2(d) of the Real

Estate (Regulation and Development) Act, 2016 (RERA) as any

person to whom an apartment or plot in a real estate project has

been allotted or sold. An ‘apartment’ has been defined under

Section 2(e) of RERA to mean a separate and self-contained part

of any immovable property meant for commercial or residential

use. Furthermore, a real estate project has been defined under

Section 2(zn) of RERA. The following definitions as defined under

RERA are stated here under:

2. In this Act, unless the context otherwise requires,

(d) "allottee" in relation to a real estate project, means the
person to whom a plot, apartment or building, as the case
may be, has been allotted, sold (whether as freehold or
leasehold) or otherwise transferred by the promoter, and
includes the person who subsequently acquires the said
allotment through sale, transfer or otherwise but does
 not include a person to whom such plot, apartment or
building, as the case may be, is given on rent;

(e) "apartment" whether called block, chamber, dwelling

unit, flat, office, showroom, shop, godown, premises, suit,
tenement, unit or by any other name, means a separate and
self-contained part of any immovable property, including
one or more rooms or enclosed spaces, located on one or
more floors or any part thereof, in a building or on a plot of
land, used or intended to be used for any residential or
commercial use such as residence, office, shop, showroom
or godown or for carrying on any business, occupation,
profession or trade, or for any other type of use ancillary to
the purpose specified;

(zn) "real estate project" means the development of a

building or a building consisting of apartments, or converting
an existing building or a part thereof into apartments, or the
development of land into plots or apartment, as the case
may be, for the purpose of selling all or some of the said
apartments or plots or building, as the case may be, and
includes the common areas, the development works, all
improvements and structures thereon, and all easement,
rights and appurtenances belonging thereto;

48. That The Supreme Court in Pioneer Urban Land and

Infrastructure Limited vs. Union of India (2019) 8 SCC416 has

upheld the constitutionality of the Insolvency and Bankruptcy Code

(Second Amendment) Act, 2018 (Amendment Act).

49. Under the IBC, 'financial creditor' means any person to whom a

'financial debt' is owed and includes a person to whom such debt

has been legally assigned or transferred to. In the context of

 allottees, the Supreme Court relied upon the recommendations

made by the Insolvency Law Committee Report, and emphasized

the fact that the amounts raised from allottees contributes

significantly to the financing of the construction of such flats/

apartments.

50. The Hon’ble Apex Court further held that Section 5(8)(f) states that

any amount raised from a real estate allottee shall be deemed to

have the commercial effect of a borrowing. Since homebuyers or

allottees give advances to the real estate developer and thereby

finance the project at hand, they are financial creditors.

51. In addition, the allottees being financial creditors are entitled to be

represented in the Committee of Creditors (CoC) through their

authorized representative. The Supreme Court, in the Pioneer

Judgment, observed that there is no good reason to exclude the

allottees from representation in the CoC and, hence, they cannot

be excluded from the definition of 'financial creditor'.

52. Thus from a reading of the aforesaid judgement it can be inferred

that the unit owners/allottees of the Applicant Association are

financial creditors in their individual capacity.

53. Furthermore, Section 2 and 24 of the Haryana Apartment

Ownership Act, 1983 (as amended); which is an Act to provide for

the ownership of an individual apartment in a building and to make

 such apartment heritable and transferable property and matters

connected therewith; provides as under:

2. Application of Act.

The provisions of this Act shall apply to every apartment

lawfully constructed for residential purposes, integrated
commercial complexes, flatted factories, Information
Technology Industrial Units, Cyber Park and Cyber City for
the purpose of transfer of ownership of an individual
apartment in building whether constructed before [or] after
the commencement of this Act……

24. Act to be binding on apartment owners, tenants etc.

–

[1] All apartment owners, tenants of such owners,

employees of owners and tenants or any other person who
may in any manner use property or any part therefore, shall
be subject to the provisions of this Act and to the declaration
and the bye-laws of the association of apartment owners
adopted pursuant to the provisions of this Act.

[2] All agreements, decisions and determinations lawfully

made by the association of apartment owners in accordance
with the voting percentages established under this Act,
declaration or bye-laws shall be deemed to be binding on all
apartment owners.

54. That the above provisions of the Haryana Apartment Ownership

Act, 1983 (as amended) makes it quite clear that all apartment

owners, tenants of such owners, employees of owners and tenants

or any other person who may in any manner use property or any

part therefore, shall be subject to the provisions of this Act and to

the declaration and the bye-laws of the association of apartment

 owners i.e. the rules of the Applicant Association herein.

55. That the Applicant Association by virtue of being trustees of the

members of the Applicant Association (i.e. the unit holder/allottees)

vide the bye laws; has the right to recover, retain and expend the

IFMSD as well as maintenance security paid by the unit

holders/allottee to the Corporate Debtor individually.

56. In this context it is pertinent to mention here that the District

Registrar, Firms and Societies, Gurugram had received a

representation dated 12.04.2019 from the Applicant Association

stating that the Corporate Debtor had not yet handed over the

possession of the basement office to the Applicant Association.

The Applicant further claimed that the Corporate Debtor had not

handed over the IFMS amount and 3 month maintenance security

amount to the Applicant Association.

57. That the District Registrar, Firms and Societies, Gurugram directed

the Corporate Debtor to handover the IFMSD and Maintenance

Security to the RWA Association vide Memo No.

GGM/DIC/DR/310 dated 15.02.2019 and 01.05.2019. It also

directed the Corporate Debtor to handover the entire ABW Tower

along with relevant records to the Governing body of the Applicant

Association.

58. That pursuant to the order and directions of the District Registrar,
 Firms and Societies, Gurugram, the Corporate Debtor handed over

the constructive and legal possession to the Applicant Association

and sought some more time to verify and reconcile the accounts

statement to release the IFMSD and Maintenance Security to the

RWA. The relevant extracts from the letter dated 18.02.2019 are

reproduced here under:

…It is further submitted that from now onwards, Jassum

Propcon Projects Pvt. Ltd. will not be responsible for
electricity, maintenance etc. of ABW tower. We have also
instructed the Maintenance Agency i.e. V4Consultants Pvt.
Ltd. and Advertising Agency i.e. Tycoon Events &
Promotions Pvt. Ltd. About the same. We have also directed
both the aforesaid companies to assist the Association and
disclose all the records to it and allow to inspect the same.
We are aware that now onwards all the agreements which
have been executed by us with the aforesaid companies
shall not survive and this fact is also being brought to the
knowledge of the aforesaid companies and both the said
companies may contact the Association in an independent
way.
Regarding the IFMS and three months security we have
to respectfully submit that we sincerely need some more
time so as we can verify and reconcile the accounts
statement before we release the money to the
Association.

59. That from a reading of the above mentioned extract of the letter

dated 18.02.2019, it is evident that the Corporate Debtor never

disputed the debt payable to the Applicant Association and that it

was only the quantum of the debt payable that the Corporate
 Debtor sought to verify and reconcile the accounts statement

before releasing the monies to the Applicant Association.

60. Furthermore, as mentioned in the preceding paragraphs, an

authority letter was signed by 54 owners/allottees who are resident

occupants/ owners of the units in the Complex maintained by the

Applicant Association, thereby irrevocably authorizing the

Applicant Association to recover, retain and expend the Interest

Free Maintenance Security Deposit (“IFMSD”) as well as the

Maintenance Security paid by the them to the Corporate

Debtor/Jassum Propcon Projects Private Limited in terms of the

Allotment Letter, Space Buyer Agreement and Maintenance and

Security Agreement along with interest.

61. That Section 5(7) of the IBC code provides the definition for

Financial Creditor. The said section reads as here under:-

"financial creditor" means any person to whom a financial

debt is owed and includes a person to whom such debt
has been legally assigned or transferred to.
62. That on the issue of assignment of debt, the National Company

Law Tribunal in Pankaj Yadav & Ors vs. State Bank of India Ltd.

& Anr Company Appeal (AT) (Insolvency) No. 28 of 2018 has

held that:-

(12) A legal transfer of debt account from a creditor

(assignor) to a third party (assignee) that then
 becomes the rightful owner of the account for the
purpose of resolving debt through collection from
a “Debtor” is termed as “Assignment of Debt”.
Therefore a Debt Assignment is a transfer of Debt
with all rights and obligations associated with it
from a Creditor to a third party “Assignee”. It is
also worth to mention that if the debt is in form of
a loan from a Financial Institution the debtor is
referred to as ‘borrower’; and if the debt is in form
of securities, such as bonds the debtor is referred
to as an issuer. The reason for this reference is
that the debt may be of any nature but even after
assignment its colour doesn’t change.
Undisputedly in common parlance an
‘Assignment’ is transfer of ones right to recover a
debt of another person. Assignment is a
contractual right. Rights of an ‘Assignee’ are no
better than those of the ‘Assignor’. The Assignee thus
takes over the rights as it actually exists had there
been no assignment. This common understanding
is based upon a logical principle that the counter party
to a contract, in the present case it is other 'Financial
Creditors', cannot be put to a disadvantage by virtue of
an assignment. The reason is that an assignment is
merely a transfer of rights that the assignor had,
nothing more or nothing less. The Capacity or the Title
under which an assignor pursues as a Creditor that
rights only gets transferred in favour of the
assignee. The assignee can neither improve his
title nor can be put in a disadvantageous position
due to the assignment of a Debt.

63. That by applying the above mentioned ratio in the instant case, it

can be said that upon assignment of debt the Applicant stepped

into the shoes of the unit holders/allottees and thereby the

 Applicant Association now has the right to resolve the debt through

collection from the Corporate Debtor in its capacity as the

Financial Creditor.

B. THE CLAIM RAISED BY THE APPLICANT BEFORE THE

RESOLUTION PROFESSIONAL IS FINANCIAL DEBT AS PER
THE DEFINITION OF FINANCIAL DEBT AS PROVIDED UNDER
INSOLVENCY AND BANKRUPTCY CODE,2016.

64. That the Corporate Debtor in the year 2005-06 had invited

applications for the Allotment of Shops/ other Commercial

spaces(s) in the project ABW Tower at Village Sukhrauli, Tehsil

and District Gurgaon (Haryana) (“ABW Towers”).

65. That the Corporate Debtor while executing the Allotment letter/

Agreement (“Allotment Agreement”) had charged the Interest

Free Maintenance Security Deposit @ 200/- per Sq. ft. of the super

area (“IFMSD”). The said amount was over and above the total

consideration of the cost of the Commercial Space. In addition to

the above, the said amount was transferable consequent upon

transfer of the said Unit(s).

66. It is humbly submitted that the total dues toward the IFMSD is Rs.

2,72,21,561/- (Rupees Two crore Seventy Two Lacs Twenty One

Thousand Five hundred and Sixty one only).

67. That in addition to the above-mentioned payment of IFMSD in

 terms of the Allotment Agreement, the members and the Allottees

of the Applicant Association further executed the Maintenance and

Service Agreement (“MSA”) whereby the members and Allottees

deposited a further refundable Interest Free Maintenance Security

equivalent to 3 months maintenance charges at the rate of

Rs.19.90/- per sq. ft. per month (“Maintenance Security”).

68. It is humbly submitted that the total dues towards the Maintenance

Security aggregates to a sum of Rs. 81,25,636.02/- (Rupees

Eighty-One Lacs Twenty-Five Thousand Six Hundred and Thirty-

Six and Two Paise Only).

69. That the total outstanding due from the Corporate Debtor;

inclusive of both the transaction along with interest @12% is Rs

6,92,80,506 (Three Crore Ninety-Two Lakhs Eighty Thousand Five

Hundred Six Only).

70. In this context it is pertinent to stipulate Section 5(8) of the IBC,

2016 here under:

6. Definitions. – In this Part, unless the context otherwise

requires, –
(9) “financial debt” means a debt alongwith interest, if any,
which is disbursed against the consideration for the time
value of money and includes–
(f) any amount raised under any other transaction, including
any forward sale or purchase agreement, having the
commercial effect of a borrowing;
[Explanation. -For the purposes of this sub-clause, - (i)
any amount raised from an allottee under a real estate
 project shall be deemed to be an amount having the
commercial effect of a borrowing; and
(ii) the expressions, “allottee” and “real estate project”
shall have the meanings respectively assigned to
them in clauses (d) and (zn) of section 2 of the Real Estate
(Regulation and Development) Act, 2016 (16 of 2016);]
71. That it is further submitted that in the fact of the present case; the

Corporate Debtor had taken monies from the unit holders/allottees

of the Complex in the form of maintenance security which were

eventually supposed to be repaid. The said security could also be

termed as amount raised under a real estate project and as such is

a financial debt under the provisions of Section 5(8) of the

IBC,code.

72. Furthermore a perusal of the balance sheet of the Corporate

debtor shows that the said security receipts against maintenance

received from the unit holders / allottees are falling under the head

of advanced received from customers; thereby making it quite

clear that the said amount is intended to be used for business

activities. A copy of the said balance sheet for the year 2010-2011,

2011-2012, 2012-2013, 2013-2014 is attached herewith and

marked as Annexure CA-33 (Colly).

73. That in the matter of G. Sreevidhya Vs. Karismaa Foundations

Pvt. Ltd. Company Appeal(AT) (Insolvency) No. 494 of 2018,

this Hon’ble Appellate Tribunal laid the law in respect of who can
be the financial creditor which has now become the settled position

of law in light of the fact that appeal filed by the respondents in this

matter was dismissed as withdrawn by Hon’ble Supreme Court of

India vide its order dated 04.07.2019 in Civil Appeal No.

3376/2019. The relevant paragraphs are extracted here under:

6. Section 3(11) of I&B Code defines 'debt' as a liability or

obligation in respect of a claim which is due from any person
and includes a 'financial debt' and 'operational debt'. The
term 'claim' defined under Section 3(6) of the same Code
means a right to payment in any of its manifestations
including right to remedy for breach of contract giving rise to
a right to payment. Section 5(7) of I&B Code defines the
legal expression 'financial creditor' as a person to whom a
financial debt is owed which also includes an assignee or a
transferee. Section 5(8) of I&B Code defines the term
'financial debt' as a debt along with interest, if any, which is
disbursed against the consideration for the time value of
money and includes the money borrowed against the
payment of interest, amounts raised under credit facility,
purchase facility, issue of bonds, notes, debentures, loan
stock or similar instrument, amount of liability in respect of
any lease or hire purchase contract, receivables other than
on nonrecourse basis, amount raised under any other
transaction including forward sale or purchase agreement
having commercial effect of a borrowing, derivative
transactions in connection with protection against fluctuation
in price, counter indemnity obligations in respect of
guarantee, indemnity, bond, letter of credit or any instrument
issued by a bank or financial institution and the amount of
any liability in respect of any guarantee or indemnity with
reference to the aforesaid transactions. This Appellate
Tribunal, while dealing with the interpretation of 'financial
debt' in 'Shailesh Sangani Vs. Joel Cardoso, Company
Appeal (AT) (Insolvency) No. 616 of 2018 decided on
30th January, 2019' observed as under:-

6. A plain look at the definition of 'financial debt'

brings it to fore that the debt along with interest, if
any, should have been disbursed against the
consideration for the time value of money. Use of
expression 'if any' as suffix to 'interest' leaves no
room for doubt that the component of interest is
not a sine qua non for bringing the debt within the
fold of 'financial debt'. The amount disbursed as
debt against the consideration for time value of
money may or may not be interest bearing. What is
material is that the disbursement of debt should be
against consideration for the time value of money.
Clauses (a) to (i) of Section 5(8) embody the nature of
transactions which are included in the definition of
'financial debt'. It includes money borrowed against the
payment of interest. Clause (f) of Section 5(8)
specifically deals with amount raised under any other
transaction having the commercial effect of a
borrowing which also includes a forward sale or
purchase agreement. It is manifestly clear that money
advanced by a Promoter, Director or a Shareholder of
the Corporate Debtor as a stakeholder to improve
financial health of the Company and boost its
economic prospects, would have the commercial effect
of borrowing on the part of Corporate Debtor
notwithstanding the fact that no provision is made for
interest thereon. Due to fluctuations in market and the
risks to which it is exposed, a Company may at times
feel the heat of resource crunch and the stakeholders
like Promoter, Director or a Shareholder may, in order
to protect their legitimate interests be called upon to
respond to the crisis and in order to save the
company they may infuse funds without claiming
interest. In such situation such funds may be
treated as long term borrowings. Once it is so, it
 cannot be said that the debt has not been
disbursed against the consideration for the time
value of the money. The interests of such
stakeholders cannot be said to be in conflict with the
interests of the Company. Enhancement of assets,
increase in production and the growth in profits, share
value or equity enures to the benefit of such
stakeholders and that is the time value of the money
constituting the consideration for disbursement of such
amount raised as debt with obligation on the part of
Company to discharge the same. Viewed thus, it can
be said without any amount of contradiction that in
such cases the amount taken by the Company is in
the nature of a 'financial debt'.

7. Dwelling on the scope of provisions of Section 7 of I&B

Code dealing with triggering of Corporate Insolvency
Resolution Process at the instance of 'Financial Creditors'
and converging on the procedure regulating initiation of such
process, the Hon'ble Apex Court held in 'Swiss Ribbons
Pvt. Ltd. & Anr. Vs. Union of India & Ors.', Writ Petition
(Civil) No. 99/2018 (MANU/SC/0079/2019) as follows:-

"36. A perusal of the definition of "financial creditor"

and "financial debt" makes it clear that a financial debt
is a debt together with interest, if any, which is
disbursed against the consideration for time value of
money. It may further be money that is borrowed or
raised in any of the manners prescribed in Section 5(8)
or otherwise, as Section 5(8) is an inclusive definition.
On the other hand, an "operational debt" would include
a claim in respect of the provision of goods or services,
including employment, or a debt in respect of payment
of dues arising under any law and payable to the
Government or any local authority.

74. That based on a perusal of the above mentioned judgments, it is

 quite clear that for a debt to be Financial Debt subsistence of

interest on the said debt is not necessary so long the financial

creditor had some interest in the subject matter and sought to gain

financially from the disbursal of monies.

75. That It is manifestly clear that money advanced by the unit

owner/allottes to improve the financial health of the Corporate

Debtor Company and boost its economic prospects, would have

the commercial effect of borrowing on the part of Corporate Debtor

notwithstanding the fact that no provision is made for interest

thereon.

76. That due to fluctuations in market and the risks to which it is

exposed, the Corporate Debtor Company felt the heat of resource

crunch and in order to protect their legitimate interests called upon

the unit owners/allottes to infuse funds in the form of IFMSD and

Maintenance Security without claiming any interest. In such

situation such funds should be treated as long term borrowings.

Once it is so, it cannot be said that the debt has not been

disbursed against the consideration for the time value of the

money.

77. Furthermore, the recommendations made by Insolvency Law

Committee are set out herein below in extenso:

“RECOMMENDATIONS PROPOSING AMENDMENTS TO

THE CODE AND RELEVANT SUBORDINATE
LEGISLATION
DEFINITIONS
Financial debt
1.1 Section 5(8) of the Code defines ‘financial debt’ to
mean a debt along with interest, if any, which is
disbursed against the consideration for the time value
of money and inter alia includes money borrowed
against payment of interest, etc. The Committee’s
attention was drawn to the significant confusion
regarding the status of buyers of under construction
apartments (“home buyers”) as creditors under the
Code. Multiple judgments have categorised them as
neither fitting within the definition of ‘financial’ nor
‘operational’ creditors. In one particular case, they
have been classified as ‘financial creditors’ due to the
assured return scheme in the contract, in which there
was an arrangement wherein it was agreed that the
seller of the apartments would pay ‘assured returns’ to
the home buyers till possession of property was given.
It was held that such a transaction was in the nature of
a loan and constituted a ‘financial debt’ within the
Code. A similar judgment was given in Anil Mahindroo
& Anr v. Earth Organics Infrastructure. But it must be
noted that these judgments were given considering the
terms of the contracts between the home buyers and
the seller and are fact specific. Further, the IBBI issued
a claim form for “creditors other than financial or
operational creditors”, which gave an indication that
home buyers are neither financial nor operational
creditors.
1.2 Non-inclusion of home buyers within either the
definition of ‘financial’ or ‘operational’ creditors may be
a cause for worry since it deprives them of, first, the
right to initiate the corporate insolvency resolution
process (“CIRP”), second, the right to be on the
committee of creditors (“CoC”) and third, the 41
guarantee of receiving at least the liquidation value
under the resolution plan. Recent cases like Chitra
Sharma v. Union of India and Bikram Chatterji v. Union
of India have evidenced the stance of the Hon’ble
Supreme Court in safeguarding the rights of home
buyers under the Code due to their current
disadvantageous position.

1.3 To completely understand the issue, it is imperative

that the peculiarity of the Indian real estate sector is
highlighted. Delay in completion of under-construction
apartments has become a common phenomenon and
the records indicate that out of 782 construction
projects in India monitored by the Ministry of Statistics
and Programme Implementation, Government of India,
a total of 215 projects are delayed with the time over-
run ranging from 1 to 261 months. Another study
released by the Associated Chambers of Commerce
and Industry of India, revealed that 826 housing
projects are running behind schedule across 14 states
as of December 2016. Further, the Committee agreed
that it is well understood that amounts raised under
home buyer contracts is a significant amount, which
contributes to the financing of construction of an asset
in the future.

1.4 The current definition of ‘financial debt’ under

section 5(8) of the Code uses the words
“includes”, thus the kinds of financial debts
illustrated are not exhaustive. The phrase
“disbursed against the consideration for the time
value of money” has been the subject of
interpretation only in a handful of cases under the
Code. The words “time value” have been
interpreted to mean compensation or the price
paid for the length of time for which the money has
 been disbursed. This may be in the form of interest
paid on the money, or factoring of a discount in the
payment.

1.5 On a review of various financial terms of agreements

between home buyers and builders and 42 the manner
of utilisation of the disbursements made by home
buyers to the builders, it is evident that the agreement
is for disbursement of money by the home buyer for
the delivery of a building to be constructed in the
future. The disbursement of money is made in relation
to a future asset, and the contracts usually span a
period of 4-5 years or more. The Committee
deliberated that the amounts so raised are used as
a means of financing the real estate project, and
are thus in effect a tool for raising finance, and on
failure of the project, money is repaid based on
time value of money. On a plain reading of section
5(8)(f), it is clear that it is a residuary entry to cover
debt transactions not covered under any other entry,
and the essence of the entry is that “amount should
have been raised under a transaction having the
commercial effect of a borrowing.” An example has
been mentioned in the entry itself i.e. forward sale or
purchase agreement. The interpretation to be
accorded to a forward sale or purchase agreement to
have the texture of a financial contract may be drawn
from an observation made in the case of Nikhil Mehta
and Sons (HUF) v. AMR Infrastructure Ltd.: “A forward
contract to sell product at the end of a specified period
is not a financial contract. It is essentially a contract for
sale of specified goods. It is true that some time
financial transactions seemingly restructured as
sale and repurchase. Any repurchase and reverse
repo transaction are sometimes used as devices
for raising money. In a transaction of this nature an
entity may require liquidity against an asset and
 the financer in return sell it back by way of a
forward contract. The difference between the two
prices would imply the rate of return to the
financer.”

1.6 Thus, not all forward sale or purchase are financial

transactions, but if they are structured as a tool or
means for raising finance, there is no doubt that the
amount raised may be classified as financial debt
under section 5(8)(f). Drawing an analogy, in the
case of home buyers, the amounts raised 43 under
the contracts of home buyers are in effect for the
purposes of raising finance, and are a means of
raising finance. Thus, the Committee deemed it
prudent to clarify that such amounts raised under
a real estate project from a home buyer fall within
entry (f) of section 5(8).

1.7 Further, it may be noted that the amount of money

given by home buyers as advances for their purchase
is usually very high, and frequent delays in delivery of
possession may thus, have a huge impact. For
example, in Chitra Sharma v. Union of India the
amount of debts owed to home buyers, which was paid
by them as advances, was claimed to be INR Fifteen
Thousand Crore, more than what was due to banks.
Despite this, banks are in a more favourable position
under the Code since they are financial creditors.
Moreover, the general practice is that these contracts
are structured unilaterally by construction companies
with little or no say of the home buyers. A denial of the
right of a class of creditors based on technicalities
within a contract that such creditor may not have had
the power to negotiate, may not be aligned with the
spirit of the Code.

1.8 The Committee also discussed that section 30(2)

(e) of the Code provides that all proposed resolution
 plans must not contravene any provisions of law in
force, and thus, the provisions of Real Estate
(Regulation and Development) Act, 2016 (“RERA”) will
need to be complied with and resolution plans under
the Code should be compliant with the said law.
1.9. Finally, the Committee concluded that the
current definition of ‘financial debt’ is sufficient to
include the amounts raised from home buyers /
allottees under a real estate project, and hence,
they are to be treated as financial creditors under
the Code. However, given the confusion and
multiple interpretations being taken, at this stage,
it may be prudent to explicitly clarify that such
creditors fall 44 within the definition of financial
creditor, by inserting an explanation to section 5(8)
(f) of the Code. Accordingly, in CIRP, they will be a
part of the CoC and will be represented in the
manner specified in paragraph 10 of this report,
and in the event of liquidation, they will fall within
the relevant entry in the liquidation waterfall under
section 53. The Committee also agreed that
resolution plans under the Code must be
compliant with applicable laws, like RERA, which
may be interpreted through section 30(2)(e) of the
Code. It may be noted that there was majority
support in the Committee for the abovementioned
treatment of home buyers. However, certain
members of the Committee, namely Sh. Shardul
Shroff, Sh. Sudarshan Sen and Sh. B. Sriram,
differed on this matter.”
(emphasis supplied)

78. That on the basis of the above-mentioned discussion it is

abundantly clear that the amount raised from the unit

owners/allottees of the applicant association are a financial debt as

 it has time value of money embedded in them.

C. THE RESOLUTION PROFESSIONAL CANNOT ADJUDICATE A

CLAIM AS PER THE PROVISIONS OF THE INSOLVENCY AND
BANKRUPTCY CODE, 2016

79. That in the matter of “S. Rajendran Vs. Jonathan

Mouralidarane” 2019 SCC OnLine NCLAT 758 the Hon’ble

NCLAT has held that the Resolution Professional cannot

adjudicate the claim. Relevant extract of the judgement are laid

here under:-

“Having heard learned Counsel for the Appellant, we are of

the opinion that the ‘Resolution Professional’ had no
jurisdiction to “determine” the claim as pleaded in the
Appeal. He could have only “collated” the claim, based
on evidence and the record of the ‘Corporate Debtor’ or
as filed by Jonathan Mouralidarane (‘Financial
Creditor’). If an aggrieved person thereof moves before the
Adjudicating Authority and the Adjudicating Authority after
going through all the records, comes to a definite conclusion
that certain claimed amount is payable, the ‘Resolution
Professional’ should not have moved in Appeal, as in any
manner, he will not be affected.”
(Emphasis supplied)

80. Furthermore, in “Swiss Ribbons Pvt. Ltd. & Anr. vs. Union of

India & Ors 2019 SCC OnLine SC 73”, the Hon’ble Supreme

Court held that the ‘Resolution Professional’ has no jurisdiction to

decide the claim of one or other party. Relevant excerpts from the
judgment are reproduced herein below:

..RESOLUTION PROFESSIONAL HAS NO

ADJUDICATORY POWERS.

58. It is clear from a reading of the Code as well as the

Regulations that the resolution professional has no
adjudicatory powers. Section 18 of the Code lays down the
duties of an interim resolution professional as follows:

―18. Duties of interim resolution professional.—(1) The

interim resolution professional shall perform the following
duties, namely—
(a) collect all information relating to the assets,
finances and operations of the corporate debtor for
determining the financial position of the corporate
debtor, including information relating to—
(i) business operations for the previous two years;
(ii) financial and operational payments for the previous
two years;
(iii) list of assets and liabilities as on the initiation date;
and
(iv) such other matters as may be specified;
(b) receive and collate all the claims submitted by
creditors to him, pursuant to the public
announcement made under Sections 13 and 15;
(c) constitute a committee of creditors;
(d) monitor the assets of the corporate debtor and
manage its operations until a resolution professional is
appointed by the committee of creditors;
(e) file information collected with the information utility,
if necessary; and
(f) take control and custody of any asset over which
the corporate debtor has ownership rights as recorded
in the balance sheet of the corporate debtor, or with
 information utility or the depository of securities or any
other registry that records the ownership of assets
including—
(i) assets over which the corporate debtor has
ownership rights which may be located in a foreign
country;
(ii) assets that may or may not be in possession of the
corporate debtor;
(iii) tangible assets, whether movable or immovable;
(iv) intangible assets including intellectual property;
(v) securities including shares held in any subsidiary of
the corporate debtor, financial instruments, insurance
policies;
(vi) assets subject to the determination of ownership by
a court or authority;
(g) to perform such other duties as may be specified by
the Board.
Explanation.—For the purposes of this section, the term
―assets shall not include the following, namely—
(a) assets owned by a third party in possession of the
corporate debtor held under trust or under contractual
arrangements including bailment;
(b) assets of any Indian or foreign subsidiary of the
corporate debtor; and
(c) such other assets as may be notified by the Central
Government in consultation with any financial sector
regulator.‖
59. Under the CIRP Regulations, the resolution professional
has to vet and verify claims made, and ultimately, determine
the amount of each claim as follows:
―10. Substantiation of claims.—The interim resolution
professional or the resolution professional, as the case
may be, may call for such other evidence or
clarification as he deems fit from a creditor for
 substantiating the whole or part of its claim.‖ xxx xxx
xxx ―12. Submission of proof of claims.—(1) Subject
to sub-regulation (2), a creditor shall submit claim with
proof on or before the last date mentioned in the public
announcement.
(2) A creditor, who fails to submit claim with proof
within the time stipulated in the public announcement,
may submit the claim with proof to the interim
resolution professional or the resolution professional,
as the case may be, on or before the ninetieth day of
the insolvency commencement date.
(3) Where the creditor in sub-regulation (2) is a
financial creditor under regulation 8, it shall be included
in the committee from the date of admission of such
claim:
Provided that such inclusion shall not affect the validity
of any decision taken by the committee prior to such
inclusion.

13. Verification of claims.—(1) The interim resolution

professional or the resolution professional, as the case may be,
shall verify every claim, as on the insolvency commencement
date, within seven days from the last date of the receipt of the
claims, and thereupon maintain a list of creditors containing
names of creditors along with the amount claimed by them, the
amount of their claims admitted and the security interest, if any,
in respect of such claims, and update it.

(2) The list of creditors shall be –

(a) available for inspection by the persons who submitted

proofs of claim;

(b) available for inspection by members, partners, directors

and guarantors of the corporate debtor;

(c) displayed on the website, if any, of the corporate debtor;

(d) filed with the Adjudicating Authority; and

(e) presented at the first meeting of the committee.

 14. Determination of amount of claim.—(1) Where the amount
claimed by a creditor is not precise due to any contingency or
other reason, the interim resolution professional or the resolution
professional, as the case may be, shall make the best estimate
of the amount of the claim based on the information available
with him. (2) The interim resolution professional or the resolution
professional, as the case may be, shall revise the amounts of
claims admitted, including the estimates of claims made under
sub-regulation (1), as soon as may be practicable, when he
comes across additional information warranting such revision.‖ It
is clear from a reading of these Regulations that the resolution
professional is given administrative as opposed to quasi-
judicial powers. In fact, even when the resolution professional is
to make a ―determination‖ under Regulation 35A, he is only to
apply to the Adjudicating Authority for appropriate relief based on
the determination made as follows:

―35A. Preferential and other transactions.—(1) On or

before the seventy-fifth day of the insolvency
commencement date, the resolution professional shall form
an opinion whether the corporate debtor has been subjected
to any transaction covered under sections 43, 45, 50 or 66.
(2) Where the resolution professional is of the opinion that
the corporate debtor has been subjected to any transactions
covered under sections 43, 45, 50 or 66, he shall make a
determination on or before the one hundred and fifteenth day
of the insolvency commencement date, under intimation to
the Board. (3) Where the resolution professional makes a
determination under sub-regulation (2), he shall apply to the
Adjudicating Authority for appropriate relief on or before the
one hundred and thirty-fifth day of the insolvency
commencement date.

60. As opposed to this, the liquidator, in liquidation

proceedings under the Code, has to consolidate and
verify the claims, and either admit or reject such claims
under Sections 38 to 40 of the Code.

Sections 41 and 42, by way of contrast between the

powers of the liquidator and that of the resolution
professional, are set out herein below:
 ―41. Determination of valuation of claims.—The liquidator
shall determine the value of claims admitted under Section
40 in such manner as may be specified by the Board.

42. Appeal against the decision of liquidator.—A creditor

may appeal to the Adjudicating Authority against the decision of
the liquidator accepting or rejecting the claims within
fourteen days of the receipt of such decision.‖ It is clear from
these Sections that when the liquidator ―determines‖ the
value of claims admitted under Section 40, such determination
is a ―decision‖, which is quasi-judicial in nature, and which can
be appealed against to the Adjudicating Authority under
Section 42 of the Code.

61. Unlike the liquidator, the resolution professional cannot

act in a number of matters without the approval of the
committee of creditors under Section 28 of the Code,
which can, by a two-thirds majority, replace one
resolution professional with another, in case they are
unhappy with his performance. Thus, the resolution
professional is really a facilitator of the resolution
process, whose administrative functions are overseen
by the committee of creditors and by the Adjudicating
Authority.

(Emphasis Supplied)

81. That in the present case before this Hon’ble Tribunal the

Respondent RP has acted beyond its jurisdiction with a mala fide

intent of defeating the claim of the Applicant by trying to help the

Corporate Debtor.

82. That the claim filed by the Applicant constitute more than 90% of

the total creditors. By rejecting the claim of the Applicant, the

Respondent RP has conveniently kept the Applicant out of the

 COC meetings and therefore is freely furthering the illegal cause

propounded by the Corporate debtor.

83. That the Resolution Professional has violated the principles laid

down by Hon’ble Supreme Court of India in Swiss Ribbon and is

therefore not fit to act as a Resolution Professional in the instant

case.

84. Furthermore, the Resolution Professional has intentionally delayed

the inclusion of Applicant in the list of Claimant to serve the illegal

designs of the Corporate Debtor.

85. It is also pertinent to mention here that the Resolution Professional

has neither displayed the information of the Corporate Debtor on

the Website nor has shared the same with the Applicant in

violation of CIRP regulations and is accordingly liable for

disciplinary proceedings under IBBI Regulations for which

Applicant is moving an appropriate Application before the IBBI.

D. OTHER ILLEGAL ACTS COMMITTED BY THE RESOLUTION

PROFESSIONAL

86. That the Applicant Association being responsible for looking after

the maintenance and upkeep of the ABW Tower on behalf of its

members is also fully competent to appoint various agencies such

as housekeeping / security / maintenance/ advertisers and

contractors for furtherance of its objects to upkeep and maintain

 the entire ABW Tower.

87. That the legal right to lease out the common space for displaying

advertisement on the façade of the ABW Tower to advertising

agencies and in case the advertisement space in the tower is

allocated by the Applicant Association to any advertising agencies;

the said agencies are required to obtain requisite permissions from

the concerned authorities for utilizing the space for advertisement

purpose. It is submitted that Municipal Corporation Gurugram

being the concerned authority to issue permission for display of

advertisement, requires the advertisement agencies to conform by

the existing provisions of Haryana Municipal Corporation

Advertisement Bye-Laws, 2016 & New Haryana Municipal

Corporation Advertisement Bye-Laws, 2018 and to make the

payment of fees prescribed vide order dated 21.05.2018.

88. It is submitted that one such agencies which was granted license

to use the advertisement space in the ABW Tower by the Applicant

Association was M/s JD11 Associates. It is submitted that from the

information provided by the Municipal Corporation Gurugram

(hereinafter referred to as the ‘MCG’) under the Right to

Information Act, 2005 to one Sh. Prabhakaran Singh dated

25.11.2019; it is evidently clear that the permission for

advertisement space applied by M/s JD 11 Associates was in

 compliance with the various clauses of the Haryana Municipal

Advertisement Bye-Laws, 2018 and is not under any stay order of

the Court.

89. That the said RTI also mentioned the fact that one M/s EMCIPI

Electronics Private Limited claimed that ABW Tower belonged to

them and the Applicant Association had no authority to sign any

agreement with respect to Advertisement.

90. That the MCG after taking into consideration the legal opinion; the

letter of District Registrar of Firm and Societies Gurugram dated

7.03.2019; the letter dated 18.02.2019 written by the Corporate

Debtor to the District Registrar informing about handing over the

possession to the Applicant Association; the provisions of Haryana

Apartment Ownership Act, 1913 & Haryana Apartment Ownership

Rules, 1987 read with Rule 4(d) of the Objects of the Applicant

Association opined that the Applicant Association had the legal

right to lease out the common space for displaying advertisement

on the façade of the ABW Tower and any such agreement for such

purpose was legally enforceable. True copy of the Information

provided, by Municipal Corporation Gurugram to Sh. Prabhakaran

Singh vide its Office Memo bearing No. AE

(Advt)/MCG/2019/40632 dated 25.11.2019 is annexed herewith

and marked as Annexure CA-34.

91. It is further submitted that due to certain inter-se disputes arising

between the EMCIPI Electronics Pvt Ltd and the Corporate Debtor

an Arbitration proceeding was initiated before a Sole Arbitrator.

92. That EMCIPI Electronics Pvt Ltd and the Corporate Debtor

collusively obtained an order dated 20.09.2019 whereby a

Receiver was appointed to take the symbolic possession of ABW

Tower in violation of the principles of natural justice as the

Applicant Association was neither made party to the said

Arbitration Proceedings nor informed about the order passed

against it.

93. The Applicant Association being aggrieved by the order dated

20.09.2019 of the Sole Arbitrator filed an Arbitration Appeal being

ARB A. No.2/2019 titled ‘ABW Tower Condominium Association

Vs. EMCIPI Electronics Pvt Ltd & Ors.’ before the Hon’ble High

Court of Delhi challenging the order of the Sole Arbitrator. The

Hon’ble High Court of Delhi vide its order dated 27.11.2019 was

pleased to grant stay of the order dated 20.09.2019 passed by the

Ld. Sole Arbitrator. True copy of the order dated 27.11.2019

passed by the Hon’ble High Court of Delhi in ARB. A No. 2/2019 is

annexed herewith and marked as ANNEXURE CA-35.

94. That the Applicant Association being authorized to lawfully allot the

advertisement space in ABW Tower subject to permission being

 obtained from the MCG by the Advertising Agency, had after

issuance of clearance by the MCG to M/s JD 11 Associates gave

the space for advertisement in the Tower to one ‘Honda

Motorcycles & Scooter India Pvt Ltd.’ (hereinafter referred to as

the ‘Advertising Brand’).

95. In this background, it is most respectfully submitted that it has

come to the knowledge of the Applicant Association that the

Respondent Resolution Professional ( Mr. Sapan Mohan Garg )

illegally approached the advertising brand ‘Honda Motorcycles &

Scooter India Pvt Ltd.’ on several occasions and has threatened

and blackmailed the Advertising Brand to extort monies which are

legally payable to the Applicant Association. So much so, the

Respondent Resolution Professional has even gone to the extent

of writing an email dated 23.04.2020 to the Advertising Brand

directing to make payments towards rentals for the period of

31.10.2019 till 20.04.2020 towards license fee of the signage

boards with charges for ancillary services into the account of

Corporate Debtor. True copy of email dated 23.04.2020 sent by

the Respondent Resolution Professional to Mr. Mohit Bhola,

Authorized Representative of Honda Motorcycles & Scooter India

Pvt Ltd is annexed herewith and marked as ANNEXURE CA-36.

96. It is further submitted that although the Respondent Resolution

 Professional was aware of the fact that the Applicant Association

was legally entitled to receive the proceeds of the Advertisement

Space in ABW Tower and was the appropriate authority to

approach; the Respondent Resolution Professional malafidely

approached the Advertising Brand with an illegal motive of

extorting monies in collusion with the Corporate Debtor and

EMCIPI Electronics Pvt Ltd without informing the Applicant

Association.

97. It is further submitted that the Respondent Resolution Professional

has been acting in contravention of his duties prescribed under the

Insolvency and Bankruptcy Code, 2016 and is collusively involving

himself in illegal activities viz. approaching the Advertising Brand

and illegally directing them to make the payment towards the

license fee for the advertisement, in furtherance to and under the

undue influence of the Corporate Debtor and EMCIPI Electronics

Pvt Ltd which is per se illegal.

98. That the Respondent Resolution Professional being a facilitator to

the resolution process of the Corporate Debtor instead of

independently acting in accordance with the various provisions of

the Code is involving itself in illegal activities at the behest of the

Corporate Debtor and EMCIPI Electronics Pvt Ltd.

99. It is further submitted that if the Respondent Resolution

 Professional is not refrained from doing such illegal activities,

grave injustice and irreparable loss would be caused to the

Applicant.

PRAYER

In view of the aforementioned facts and circumstances it is most

respectfully prayed that the Hon’ble Tribunal may be pleased to:

A. Allow the present application and set aside the rejection of the claims

of the Applicant by the Respondent vide email dated 10.04.2020;

wherein it had wrongfully relied on the legal opinion provided to it by one

Adhita Advisors dated 24.01.2020.

B. In alternative direct the Respondent to admit the claim filed by the

Applicant in the category of Financial Debt and entitle the Applicant with

appropriate representation before the Committee of Creditors along with

voting rights.

C. Pass any other order as deem fit in the interest of Justice.

Date:
Place: FILED BY
RAJIV VIRMANI
 LEXSTONE CHAMBERS
A-23, LGF, SOUTH EXTENSION-II
NEW DELHI-110049