SHEEKHA GUPTA AND SUNITA RANI GUPTA vs AKME PROJECTS LIMITED

The In the present complaint, moratorium has been declared on both the respondents i.e., AKME projects limited & Grand Star Reality Private Limited vide orders dated 18.04.2018 and 26.09.2023.   Vide order dated 18.04.2018 passed by the NCLT, Principal Branch, New Delhi in case No. IB-55(ND)/2018 case titled as Hari Kishan Sharma versus M/s Akme Projects Ltd. moratorium has been declared in terms of section 14 of the code is being issued prohibiting the following:-   Institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in nay court of law, tribunal, arbitration panel or other authority.   The counsel for complainant asked time to  place on record order of NCLAT. However, no copy  of order has been placed on record.   The counsel for the complainant states that the order of NCLAT is still reserved and not  announced/uploaded.  Further its copy shall be filed once the copy of order is received or uploaded on the website of Hon’ble NCLAT.   Matter to come up on 10.09.2024 for further proceedings.

The orders dated  26.09.2023 of NCLT has been stayed by the NCLAT. However, no copy was placed of the order. The complainant was directed to place on record within a period of one week the latest order of NCLAT with regard to lifting of moratorium on the company if it is so. The counsel for the complainant confirms that the order has been reserved by NCLAT and yet to be pronounced. Matter to come up on 21.5.2024 for further proceedings

On the last date i.e 31.10.2023 the complainant stated that order dated 26.09.2023 of NCLT has been stayed by the NCLAT. However, no copy was placed of the order. The complainant was directed to place on record within a period of one week the latest order of NCLAT with regard to lifting of moratorium on the company if it is so. Nothing has been placed on record till date. In the present complaint, moratorium has been declared on both the respondents ,i.e.,  AKME projects limited & Grand Star Reality Private Limited  vide orders dated 18.04.2018 and 26.09.2023.  Vide order dated 18.04.2018 passed by the NCLT, Principal Branch, New Delhi in case No. IB-55(ND)/2018 case titled as Hari Kishan Sharma versus M/s Akme Projects Ltd. moratorium has been declared in terms of section 14 of the code is being issued prohibiting the following:- Institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement , decree or order in nay court of law , tribunal, arbitration panel or other authority.  Vide order dated 26.09.2023 passed by the NCLT, Principal Branch, New   Delhi in case No. IB-995/PB/2020 case titled as Manab Datta and Ors. Versus M/s Grandstar Realty Pvt. Ltd. wherein moratorium has been declared in terms of section 14 of the Code. The proxy counsel for the complainant requests  2 weeks time to file copy of orders passed by Hon’ble NCLAT staying the moratorium order of NCLT. The requisite copy of order be filed within 2 weeks. Matter to come up on 05.03.2024 for further proceedings.

Vide order dated 18.04.2018 passed by the NCLT, Principal Branch, New Delhi in case No. IB-55(ND)/2018 case titled as Hari Kishan Sharma versus M/s Akme Projects Ltd. moratorium has been declared in terms of section 14 of the code is being issued prohibiting the following:- Institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in nay court of law , tribunal, arbitration panel or other authority.  Vide order dated 26.09.2023 passed by the NCLT, Principal Branch, New Delhi in case No. IB-995/PB/2020 case titled as Manab Datta and Ors. Versus M/s Grand Star Realty Pvt. Ltd. wherein moratorium has been declared in terms of section 14 of the code.  However, on the last date of hearing,  the  counsel for the complainant  had stated that order dated 26.09.2023 of NCLT has been stayed by the NCLAT. However,  no copy of the order has been placed on record.  The complainant is directed to place on record within a period of one week the latest order of NCLAT with regard to lifting of moratorium on the company, if it is so. Matter to come up on 02.01.2024 for further proceedings.

In the present complaint a moratorium has been declared on both the respondents i.e  AKME projects limited & Grand Star Reality Private Limited  vide orders dated 18.04.2018 and 26.09.2023 Vide order dated 18.04.2018 passed by the NCLT, Principal Branch, New Delhi in case No. IB-55(ND)/2018 case titled as Hari Kishan Sharma versus M/sAkme Projects Ltd. moratorium has been declared in terms of section 14 of the code is being issued prohibiting the following:- Institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement , decree or order in nay court of law , tribunal, arbitration panel or other authority. Vide order dated 26.09.2023 passed by the NCLT, Principal Branch, New Delhi in case No. IB-995/PB/2020 case titled as Manab Datta and Ors. Versus M/s Grandstar Realty Pvt. Ltd. wherein moratorium has been declared in terms of section 14 of the code. However the counsel for the complainant states that the above order passed by the Hon’ble NCLT on 26.09.2023 has been stayed by the Hon’ble NCLAT and thus as of now no moratorium is applicable on the company – respondent No.2 i.e M/s Grandstar Reality Pvt. Ltd. The copy of the order shall be submitted today itself in the registry. Matter to come up  on 31.10.2023 for pronouncement of order.

The complainant has approached the Authority seeking relief of possession and delay possession charges. The complainant re-stated the trails of transactions: - ·        The complainants booked the subject unit in 2011 and that fact that the said project was mortgage with the YES Bank by respondent no. 1 i.e. Akme Projects Limited (“R1”) was not disclosed to them. ·        Due to continuous defaults on part if R1 it was declared as NPA and as a result, the said project in view of SARFAESI Act, 2002, the said project was sold to respondent no. 2 i.e. Grandstar Realty Private Limited (“R2”) wherein as per sale notice, the said project (specifically details of assets provided as annexure A) , R2 was required to deposit the administrative charges regarding change of developer. ·        Reference to page no. 71, 88 of complaint was made wherein making reference to relevant paras of sale confirmation dated 17.06.2016. ·        However, the aforesaid transaction was challenged by R1 before DRT IN 2017 to which R2 was also one of the party. Meanwhile, in 2018, R1 went under Corporate Insolvency Resolution Process vide orders. The said application was dismissed vide order dated 07.01.2020 of DRT. (Reference was made to page no. 103 & 107 of complaint). ·        The aforesaid order of DRT was challenged by R2 before DRAT and the same was again dismissed by vide order dated 07.06.2021. ·        The complainants further submitted that the R1 is under insolvency and there is no stay on construction by DRT/DRAT. The complainants are left with no other option but to approach the Authority for seeking relief of possession and DPC.   The respondent no. 2 i.e. Grandstar Realty Private Limited (“R2”) raised following objections: - ·        R2 is neither a developer nor a promoter, and hence no complaint can be instituted against the same. It further submitted that the subject unit was purchased by complainant from R1 and they have admittedly entered into an agreement with R1 for purchase of subject unit and hence, there is no privity of contract between complainants and R2. They are strangers to R2.  ·        The claims of the complainant are already pending before IRP as R1 is under insolvency before NCLT. ·        R2 entered into the transaction to earn profit and thus, paid 41 crores for purchase of said project. Why would it purchase a project whose license has already been expired and if known of the circumstances that renewal of license and taking registration would cost another burden to it. It was fault of the departments which concealed relevant facts and entangled the R2. They concealed various facts that the land is under dispute and already CBI enquiry was going on against the land. Further, there was stay on construction for period of April 2015 to 2018 and 2020 to 2022; as final clarification w.r.t. Rameshwar & ors. Vs state of Haryana and ors. CA 8788 of 2015 was bought in 2022 only. ·        Further, even if desired it couldn’t proceed with getting required license as there were various circumstances beyond the control of R2 from 2015-2020. Further, it was in year 2022, when position with regard to Rameshwar Case was clarified. Hence, in view of aforesaid circumstances, no relief should not be granted against it   Arguments heard. Order Reserved. Detail order will follow.

Adjourned to 11.07.2023 for consideration and orders.

On the last dated of hearing i.e. 13.01.2023, the complainant filed written submissions. Vide proceedings of even date the respondents were directed to file written submissions in this regard. However, till date no written submissions has been filed by the complainant. The counsel for the complainant states that respondent No.1 had obtained a loan against the project in which the unit of the allottee was allotted and BBA had also been signed on 20.04.2012.  However,  due to default of respondent No.1,  the project was sold under the SARFAESI Act to respondent No.2 through open auction on 17.06.2016 with clear understanding that the said project was being handed over to the respondent No.2 with rights of the allottees intact and respondent No.2 further seek the necessary approvals including transfer of licence  required to complete the project. However,  both respondent No.1 & 2 went against the orders of the sale of the property in DRT/DRAT.  Now,  as on date there is no stay or adverse order on the sale/transfer of the project.  Therefore,  respondent No.2 cannot shy away from its responsibility and is liable to comply with the provisions of Act,  2016.  The complainant is seeking delayed possession charges and physical possession of the unit.  The counsel for respondent No.2 states that written submissions are being filed in the registry of the authority  within 2 days with an advance copy to the counsel for the complainant which is supplied during proceedings. The case has been pending since 07.12.2021 and no further date can be given.  Replies and written arguments are  on record. Order reserved. Matter to come up on 24.05.2023  for pronouncement of order.

The  present complaint has been received on 07.12.2021 and the reply on behalf of respondent no. 1 & no. 2 was received on 11.03.2022 & 31.03.2022 respectively.  The counsel for the complainant has supplied a copy of the written submission to the counsel for the respondent No. 1 and 2 and shall be filed in the registry of the authority within 3 days. The counsel for the complainant further clarifies that a civil writ petition filed by the RWA before the Hon’ble Punjab and Haryana High Court  has also been withdrawn by orders dated 12th January,2023 with a liberty to seek appropriate remedy before this authority  in terms of Act,2016. The respondent no.1 and 2 may also file the written submissions in next 15 days after supplying a copy to the complainant. The counsel for the complainant further states that the complaint filed by R-2 against the concerned  financial institution alleging fraudulent sale has been dismissed before DRT as well as DRAT and there is no stay on claims of the complainant-allotee before any authority or court. Matter to come up before the full bench on 28.3.2023 for further proceedings.

The  present complaint has been received on 07.12.2021 and the reply on behalf of respondent no. 1 & no. 2 was received on 11.03.2022 & 31.03.2022 respectively.  The complainant has sought relief of delayed interest  at the prescribed rate on the amount paid so far to the respondent  No.1 on account of delay in handing over of the possession During arguments, the counsel for the respondent no.1 states that  :- ·         The respondent no. 1 i.e. Akme Projects Limited (hereinafter, R1) has gone under Corporate Insolvency Resolution Process vide orders dated 18.04.2018. ·         The complainant has submitted her claim amounting to Rs.65,57,719 before the IRP. ·         The said project of the R1 was mortgage with Yes Bank Limited (called for auction on 10.11.2015) and vide auction dated 02.04.2016 under SARFAESI Act, 2002, the said project was sold to respondent no. 2 on 17.06.2016 i.e. Grandstar Realty Private Limited (hereinafter, R2) wherein as per sale notice, the said project  , R2 was required to deposit the administrative charges regarding change of developer.). ·         Respondent no.1 challenged the auction dated 3.5.2016 before initiation of CIRP  and sale conducted by YES bank  in Debt Recovery Tribunal-II on the ground that YES bank conducted the auction on the basis of low valuation of the mortgage property and the restraining orders passed by the Ld.Civil Judge, Gurugram dated 2.5.2016 and Hon’ble High Court orders dated 3.5.2016 for staying the auction . Respondent NO.2 M/s Grand star filed appeal on 23.1.2019 for setting aside the auction sale deed dated 3.5.2016 conducted by YES bank as being vitiated by fraud . The DRT-II New Delhi vide its order dated 7.1.2020 dismissed the SA No.148 of 2017 of the respondent no.1 and IA no.145/2019  of the respondent no.2 and confirmed the sale made by YES Bank to respondent no.2 of the said project . ·         The  RP of the answering respondent no.1 preferred Regular appeal no.30 of 2020 before the Hon’ble Debt Recovery Appellate Tribunal against the orders of DRT dated 7.1.2020. The respondent no.2 has also filed appeal before the Debt Recovery Tribunal against the orders  which was dismissed  on 7.6.2021 with the liberty to approach DRT by way of filing independent securitization application. Accordingly respondent no.2 has approached to DRT for setting aside the sale on the ground that YES bank has played fraud . This case is pending adjudication . ·         That CIRP has approached NCLT for extension of the period of 90 days which was dismissed on 2,11,2021. Aggrieved by the said orders, an appeal has been filed before NCLAT which is pending. ·         Mr Arun Anand has filed appeal before Apex court against orders dated 22.9.2021 passed by NCLAT against the interim order dated 6.1.2022 directing all parties to maintain status quo till the next date of hearing in respect of proceedings of CIRP of respondent No.1. It is further submitted that  by the respondent no.2 that -   ·         The counsel for respondent  No.2 states that very auction  in favour of them by YES bank was a fraudulent transaction   because the license was part of a CBI investigation which was seized by the CBI and took a plea that there was stay on construction of project from 2015 under Rameshwar & Ors. Vs State of Haryana and the same was lifted on 2018 when it was made clear that the said part of land is not covered under it. ·         Respondent NO.2 M/s Grand star filed appeal on 23.1.2019 for setting aside the auction sale deed dated 3.5.2016 conducted by YES bank as being vitiated by fraud . The DRT-II New Delhi vide its order dated 7.1.2020 dismissed the SA No.148 of 2017 of the respondent no.1 and IA no.145/2019  of the respondent no.2 and confirmed the sale made by YES Bank to respondent no.2 of the said project . ·         That Writ petition no.9229 of 2016 filed by respondent no.1 in the Hon’ble High Court Delhi challenging the proceedings of the auction sale of the said project  by YES bank  to respondent no.2 and a stay order was passed by the Delhi High Court . The said orders remained in force till 1.9.2017 when the Delhi high Court dismissed the said appeal. ·         Apart from the above, an order dated 24.4.2015 had been passed by the Apex Court staying any construction on the land in question in Civil Appeal No.8788 of 2015 titled as Rameshwar and others Versus State of Haryana and others.  The Flat buyers association in the present project has filed applications for impleadment  praying  to exempt the said land  from the purview of order dated 13.10.2020.              Part argument heard.               The counsel for the complainant is directed to submit written submissions within 15 days with an advance copy to the counsel for the respondents.                    Matter to come up on  13.1.2023    for further arguments.

The present complaint has been received on 07.12.2021 and the reply on behalf of respondent no. 1 & no. 2 was received on 11.03.2022 & 31.03.2022 respectively.  As per perusal of documents on record, the authority observes following points:- ·        The respondent no. 1 i.e. Akme Projects Limited (hereinafter, R1) has gone under Corporate Insolvency Resolution Process vide orders dated 18.04.2018. ·        The said project of the R1 was mortgage with Yes Bank Limited and vide auction dated 02.04.2016 under SARFAESI Act, 2002, the said project was sold to respondent no. 2 i.e. Grandstar Realty Private Limited (hereinafter, R2) wherein as per sale notice, the said project (specifically details of assets provided as annexure A) , R2 was required to deposit the administrative charges regarding change of developer. (ref page no. 87 of complaint). ·        As per list of assets, the subject unit of the complainant i.e. A-402 was covered under the said list and the same is evident from page no. 93 of the complaint. ·        The R2 alleges that the said transfer was challenged before DRT, Delhi and the same is still pending before it. ·        As per annexure 4, page no. 34 of reply by R1, the complainant has also raised her claim before NCLT. The respondent No.2 is being represented by proxy counsel Shri Vikash Bhardwaj.  He states that the counsel for respondent No.2 is occupied in another matter.  This shows the non seriousness of respondent No.2 towards the case.  Respondent No.2 is directed to be present in person on the next date of hearing to explain.  The matter be listed before the full bench on the next date of hearing i.e.  22.11.2022.  The counsel for respondent No.1 has placed the order of Hon’ble Supreme Court of India in Civil Appeal no.7556 of 2021 whereby proceedings in NCLT pertaining to appointment of IRP has been stayed. Matter to come up on 22.11.2022 for further proceedings.

Coram not complete as Member of the Authority is on medical leave.                       Matter is adjourned to 27.09.2022 for further proceedings.

The present complaint was filed on 07.12.2021 and registered as complaint no. 4793 of 2021. As per the registry, complainant has sent copy of complaint along with annexures through speed post as well as through email. The tracking report of the same has been submitted by the complainant at page D-F of the complaint. The proof regarding the delivery of the complaint along with annexures made to the respondent, has been submitted by the complainant as available in the file.  The registry of the authority sent a notice with a copy of the complaint along with annexures through speed post. The tracking report of the speed post is available in the file.  Registry has also sent the notice along with a copy of the complaint through email at following email address i.e., [email protected] & [email protected]. The same is shown to has been delivered on the above email address as per the report available in the file.             The respondents have put in appearance through counsels and also filing power of attorney. During the last hearing dated 12.01.2022 the respondent no. 1 sought 3 weeks’ time to file the reply after consultation with the IRP as the said project has been taken over by NCLT and the IRP has been appointed.              Further, respondent no. 2 submitted that the said project land has been purchased by respondent no. 2 in the open auction made by the Yes Bank in realization of the loan amount as sanctioned to respondent no. 1 and the securitization application bearing no. 148 of 2017 was filed by respondent no. 1 before DRT, Delhi to set aside the auction sale. In that S.A. an interlocutory application bearing no. 145 of 2019 was also filed by the respondent no. 2 before DRT, Delhi seeking setting aside the sale by the bank and return of auction money. Both the applications were dismissed by DRT, Delhi on 07.01.2020 on the ground that the applicant of S.A. failed to make any cause for setting aside the auction. Then respondent no. 2 filed appeal against the S.A. before DRAT, Delhi which was again dismissed on the ground that the appellant may approach DRT, Delhi by way of an independent S.A claiming that yes bank sold the property to it by playing fraud upon the appellant and the                sale is liable to be set aside. The counsel for respondent No.1 states at bar that copy of reply has been supplied to the counsel for the complainant and will be filed today in the registry of the authority. The counsel for respondent No.2 seeks a short adjournment for filing of the reply.  Both the respondents are directed to file a reply within two weeks i.e., by 24.03.2022 in the registry with a copy to the complainant. Last opportunity is being granted. In case a reply is not filed within the time allowed, the defense of the respondent may struck off.               Matter to come up on 20.05.2022 for further proceedings.

The present complaint was filed on 07.12.2021 and registered as complaint no. 4793 of 2021. As per the registry, complainant has sent copy of complaint along with annexures through speed post as well as through email. The tracking report of the same has been submitted by the complainantat page D-F of the complaint. The proof regarding the delivery of the complaint along with annexures made to the respondent, has been submitted by the complainant as available in the file.  The registry of the authority sent a notice with a copy of the complaint along with annexures through speed post. The tracking report of the speed post is available in the file.  Registry has also sent the notice along with a copy of the complaint through email at following email address i.e., [email protected] & [email protected] same is shown to has been delivered on the above email address as per the report available in the file.         The respondent No.1  has put in appearance through  counsel Shri Saurbah Advocate who filed power of attorney and Ms. Divya Sharma Advocate for respondent No.2.   The counsel for respondent No.1 intimated that the said project has been taken over by NCLT  and IRP has been appointed since 2018.  Further,  the written reply will be filed within 3 weeks after consultation with IRP.  The counsel for respondent No.2 submitted that the promoter for the project has taken loan from Yes Bank and in situation of its default in payment,  the project was sold through open auction and M/s Grand Star Reality Pvt. Limited has taken over the project in the year 2016.  However,  the auction  sale was fraudulent sale and a case has been filed before DRT Delhi for setting aside the auction.   Further,  the instant project land is part of litigation before Hon’ble Supreme Court in case of Rameshwar and others versus State of Haryana in Civil SLP No. 5725  of 2015.  The association of allottee have moved Hon’ble Supreme Court by way of filing an application for excluding the project land from purview of the that judgment.  The matter is still pending before Hon’ble Supreme Court. The counsel seeks four weeks time for filing reply. Accordingly,  both the counsels for the respondents  are directed to file reply within four weeks i.e., 14.02.2022 in the registry with an advance copy to the complainants.            The matter to come up on 11.03.2022 for further proceedings.