BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI, BENCH – IV, NEW DELHI.

I.A. NO. ______ OF 2024.

IN

 C.P. (IB)-XXX/ND/2022

IN THE MATTER OF:

XXXXXX                                 .…. FINANCIAL CREDITOR

VERSUS

XXXXX                                        …. CORPORATE DEBTOR

AND IN THE MATTER OF:

XXXXX                                              …APPLICANT

VERSUS

XXXX.                                             …RESPONDENTS

INDEX

APPLICANT

THROUGH

XXXXXX

XXXXXX, New Delhi

Mobile: XXXXXXXXXX

Email: XXXXXXX

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI, BENCH – IV, NEW DELHI.

I.A. NO. ______ OF 2024.

IN

 C.P. (IB)-XXX/ND/2022

IN THE MATTER OF :

XXXXXX                                 .….FINANCIAL CREDITOR

VERSUS

XXXXXX                                         ….CORPORATE DEBTOR

AND IN THE MATTER OF:

XXXXX                                              …APPLICANT

VERSUS

XXXXXX                                           …RESPONDENTS

MEMO OF PARTIES

1.    SH. XXXXX

S/o Sh. XXXX

R/o XXXXXXXXX

(XXXXXXXXX)

VERSUS

1.    XXXXXX

(Through its RP, Sh. XXXXX)

XXXXXXX

XXXXXXXX

Email: XXXXX, XXXX

2.    XXXXXX

(Erstwhile known as XXXXX)

XXXXXXX

Email:XXXXX

APPLICANT

THROUGH

XXXXXX

XXXXXXX, New Delhi

Mobile: XXXXXXXXX

Email: XXXXX

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI, BENCH – IV, NEW DELHI.

I.A. NO. ______ OF 2024.

IN

 C.P. (IB)-XXX/ND/2022

IN THE MATTER OF :

XXXXXXX

                                        .….FINANCIAL CREDITOR

VERSUS

XXXXXXX. ….CORPORATE DEBTOR

AND IN THE MATTER OF:

XXXXXXX                              …APPLICANT

VERSUS

XXXXXXX. & ANR. …RESPONDENTS

LETTER OF MENTION

Sir,

The enclosed interlocutory application in the aforesaid matter has been filed on behalf of the Applicant/unit owner under Section 60(5)(c) of the I&B Code, 2016 read with Rule 11 of the NCLT Rules, 2016 seeking directions to the Respondents.

It may kindly be listed at the earliest as per the convenience of the Hon’ble Tribunal.

APPLICANT

THROUGH

XXXXXX

XXXXXX, New Delhi

Mobile: XXXXXXX

Email: XXXXXXX

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI, BENCH – IV, NEW DELHI.

I.A. NO. ______ OF 2024.

IN

 C.P. (IB)-XXX/ND/2022

IN THE MATTER OF :

XXXXXXX

PVT. LTD.                                          .….FINANCIAL CREDITOR

VERSUS

XXXXXXX. ….CORPORATE DEBTOR

AND IN THE MATTER OF:

XXXXXXX                              …APPLICANT

VERSUS

XXXXXXX. & ANR. …RESPONDENTS

NOTICE OF MOTION

To,

The Registrar

The National Company Law Tribunal

The party named above requests the Tribunal to grant the following relief:

a.     An order allowing the present application;

b.    An order directing the Respondent no. 1 to waive of its right seeking registration of the unit/Basement-I, having area around XXXXXXX, XXXXXXXin its favour from the Respondent no. 2;

c.     An order directing the Applicant/unit owner to directly make payment of/towards the applicable registration charges, stamp duty and other applicable charges towards the registration of the sale deeds of/for/pertaining to its unit/Basement-I having area around XXXXXXX, XXXXXX with the concerned government authority/entity/party and to seek/get the appointment with/of the concerned Sub-Registrar for the purpose of registration of the sale deed;

d.    An order directing the Respondent no. 2 to execute the sale deeds of/for/pertaining to unit/Basement-I having area around XXXXXXX, XXXXXXXdirectly in favour of/towards the Applicant herein, and further be present before the concerned Sub-Registrar for the purpose of registration of the same;

OR, IN ALTERNATIVE

An order appointing a Local Commissioner to directly execute the sale deed on behalf of the Respondent no. 2 of/for/pertaining to unit/Basement-I having area around XXXXXXX, XXXXXXXin favour of/towards the Applicant herein, and further be present before the concerned Sub-Registrar for the purpose of registration of the same; and

e.     Such other and further orders as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.

APPLICANT

THROUGH

XXXXXXX

ADVOCATE

XXXXXXX, New Delhi

Mobile: XXXXXXX

Email: XXXXXXX

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI, BENCH – IV, NEW DELHI.

I.A. NO. ______ OF 2024.

IN

 C.P. (IB)-XXX/ND/2022

IN THE MATTER OF :

XXXXXXX

PVT. LTD.                                          .….FINANCIAL CREDITOR

VERSUS

XXXXXXX. ….CORPORATE DEBTOR

AND IN THE MATTER OF:

XXXXXXX                              …APPLICANT

VERSUS

XXXXXXX. & ANR. …RESPONDENTS

APPLICATION FOR AND ON BEHALF OF THE APPLICANT UNDER SECTION 60(5)(C) OF THE I&B CODE, 2016 READ WITH RULE 11 OF THE NCLT RULES, 2016 SEEKING DIRECTIONS TO THE RESPONDENTS

MOST RESPECTFULLY SHOWETH:-

A.   That the present application has been filed by the Applicant/unit owner under Section 60(5)(c) of the I&B Code, 2016 read with Rule 11 of the NCLT Rules, 2016 seeking appropriate directions from this Hon’ble Tribunal to the Respondents herein for the purpose of ensuring justice and to seek remedy to the difficulties being faced by the Applicant herein.

B.   That the Applicant herein purchased the Basement-I having area around XXXXXXX, XXXXXXX(hereinafter to be referred to as the “Unit” or “Basement-I”) from the Corporate Debtor, however, despite making payment of the complete consideration amount (by or before the year 2009 itself) and despite being in possession of the said Unit (for a period of more than 12 years) the sale deed has neither been executed nor registered in its favour, hence, the said application has been filed by the Applicant herein for the purpose of seeking directions to the Respondents.

C.   That the Applicant herein had also made/advanced representations to the Corporate Debtor (including the Ld. RP) for the purpose of the same, however, to no success, hence, the present application has been filed.

D.   That the present application has been filed seeking appropriate directions from this Hon’ble Tribunal in lieu of the fact that:

i.                The said Applicant has already made payment of the complete consideration amount to the Corporate Debtor herein, and the same being an admitted factum by the Corporate Debtor;

ii.              The said Applicant is already in possession of the said Unit, and the same being an admitted factum by the Corporate Debtor;

iii.            The Corporate Debtor has admitted the factum of the Applicant herein being the owner of the said Unit;

iv.            The Respondent no. 2 is under an obligation to execute and register the sale deed in favour of the Corporate Debtor, and subsequently, the said Corporate Debtor is to further execute and register the sale deed in favour of the Applicant herein (this being the current arrangement between the parties resulting to which till date the said process has not been concluded);

v.              That the Corporate Debtor is under CIRP process, hence, the Corporate Debtor already being in a financial crunch would not be in a position to make payment of respective stamp duty & registration charges, hence, no purpose would be served if the Corporate Debtor is to first make payment of the registration charges to get said Unit registered in its favour when subsequently the same has to be eventually registered and transferred in the name of the Applicant herein; and

vi.            The Applicant herein is the end beneficiary, hence, considering the present financial position of the Corporate Debtor and to further avoid any delay and/or additional rounds of litigation and/or hindrance etc., it would be beneficial for all the parties if the Corporate Debtor is directed to waive off its right to seek registration from the Respondent no. 2, and further the said Respondent no.2 is to directly execute the said sale deed for the Unit in favour of the Applicant directly, and the Applicant herein to directly make payment of the stamp duty,  registration charges etc. with the concerned authority/entity.

E.    That resulting out of certain disputes/issues between the Corporate Debtor and the Respondent no. 2 (including but not limited to disputes pertaining to conversion charges etc.), the sale deed could not be executed in favour of the Applicant. That the Respondent no. 2 is an under an obligation to execute the sale deed for Unit in “XXXXXXX” (hereinafter to be referred to as “Tower” and/or “V4 Tower”) in favour of the Corporate Debtor, and subsequent to the same the said Corporate Debtor is to further execute the sale deed for the said Unit in favour of the Applicant.

F.    That it is pertinent to mention that the Corporate Debtor is now undergoing CIRP process and is already in a financial crunch position, hence, if complying with/by the above-mentioned scenario; then the Corporate Debtor would have to make necessary expenses and make payment of stamp duty, registration charges etc. (amounting to the tune of lakhs) for the purpose of firstly getting the said Unit registered in its name, and once being done it would have to further execute the required sale deed in favour of the Applicant herein, hence, in lieu of the same huge monetary consideration/resources would be utilized of the Corporate Debtor and that being without any gain/advantage to/of the Corporate Debtor as the said Unit has to be eventually transferred/registered to/under the name of the Applicant.

G.   That the registration charges and the stamp duty etc. would have to be paid by the Corporate Debtor despite the fact that once it is done in its favour then it has to further execute sale deed, hence, no fruitful purpose would be achieved, and monetary loss would be caused to the Corporate Debtor. That through the medium of the present application the Applicant herein seeks permission from this Hon’ble Tribunal to direct the Respondent no. 1 to waive off its right to seek the registration of the said Unit in its favour, and to further direct the Respondent no. 2 to directly execute the sale deed in favour of the Applicant herein. In addition to passing of the direction to the Applicant to make payment of the required registration charges, stamp duty etc. directly to/with the concerned government authority/entity; by this huge amount of monetary consideration of the Corporate Debtor would be saved/reserved, and this being one of the sole objectives of the CIRP, further, the grievances of the Applicant would also be resolved in lieu of the fact that the said Unit would have been transferred to/under the name of the Applicant.

H.   That the present application has been filed before this Hon’ble Court with the purpose of providing the required remedy and justice to the Applicant, as well as for the purpose of preserving the assets of the Corporate Debtor.

I.      That in narrative, it is pertinent to mention that:

1.    That the Respondent no. 2 (hereinafter also to be referred to as the “Allottee”), being a bidder at the auction held by the Delhi Development Authority on 16.08.2004, was declared the highest bidder, and the said bid was accepted vide letter dated 23.09.2004 bearing no. F89(3)/2004/CL/2310 with right to sell being given to the said Allottee. That the said Allottee was, in lieu of the Perpetual Lease Deed dated 17.01.2005 registered as Document No. 15611 in additional book no. I, Volume No. 1337 on page no. 45 to 54 dated 17.01.2005 in office of Sub-Registrar -VII, INA, given the possession of commercial plot of land measuring 360 sq. mtrs. situated at XXXXXXX, as well as the right to sell the same. 

2.    The said Allottee got approved the building plan for construction of a commercial complex named “V4 Tower” on the said piece of land, and for development of the said land, entered into a Development Agreement dated 24.02.2005 (hereinafter to be referred to as “Development Agreement”) with M/s XXXXXXX. (hereinafter to be referred to as “Corporate Debtor”).

3.    That accordingly, the said “V4 Tower” was duly constructed and developed by the Corporate Debtor, and resulting out of the same, Occupancy Certificate vide letter dated 31.05.2006 bearing no. XXXXXX was issued in favour of Allottee resulting out of the construction and development being duly completed by the Corporate Debtor.

4.    That the Corporate Debtor had purchased the complete basement at XXXXXXX measuring super around 3875.040 sq. ft. and covered area of 2796 sq. ft. (hereinafter the “Basement”) from the Respondent no. 2 vide Space Buyer Agreement dated 31.03.2007. That subsequent to the said purchase, the said Corporate Debtor divided the said Basement into two portions, the Unit herein having super area of 1937.50 sq. ft. (known as Basement-I) and Basement-II having super area of around 1400 sq. ft.

5.    That representing to be the complete owner of the said Basement, the Unit (being Basement-I) was sold by the said Corporate Debtor to the Applicant herein vide Agreement to Sell dated 25.08.2009 (hereinafter the “ATS”) for a considering amount of Rs. 35,00,000/- (the said amount being paid vide cheques dated 21.07.2009, and the same being an admitted factum by the said Corporate Debtor), and after receipt of the complete consideration amount only the said ATS was executed by the Corporate Debtor with the Applicant, and further the said Corporate Debtor had also issued a possession letter (dated 25.08.2009) to the Applicant also confirming its possession.

6.    That starting from 25.08.2009, the said Applicant has been in continuous, uninterrupted and exclusive possession of the said Unit without any hindrance of any manner from anyone. That the complete building XXXXXXX was a leasehold property, hence, the sale deed was not executed in favour of the Applicant, and the said ATS was only executed.

7.    That with time when the said Tower was converted to a freehold property, the Applicant made numerous requests to the said Corporate Debtor seeking registration of the sale deed (and it was always assured that the same shall be done shortly, however, to no success), and with time numerous other unit owners (in the said Tower) had filed appropriate cases before Hon’ble Karkardooma Court against the Corporate Debtor and the Respondent no. 2 seeking the registration of sale deeds, however, the matter was never adjudicated/concluded.

8.    That it is pertinent to mention that in lieu of certain ongoing disputes between the Respondent no. 2 and the Corporate Debtor, the sale deeds were never executed in favour of the respective parties resulting to the fact that the sale deeds were to be firstly executed by the Respondent no. 2 in favour of Corporate Debtor, and then the said Corporate Debtor had to execute sale deeds in favour of the respective owners (including the Applicant herein).

9.    That amongst the several disputes between the Respondent no. 2 and the Corporate Debtor, one of the said dispute was related to the said complete Basement as the Respondent no. 2 had arbitrarily canceled/terminated the Space Buyer Agreement dated 31.03.2007 (being the agreement vide which the said Respondent no. 2 had sold the complete Basement to the Corporate Debtor), and accordingly the Corporate Debtor had initiated arbitration proceedings in respect of the said alleged termination (along with other reliefs/claims).

10. That vide award dated 20.10.2016 (hereinafter the “Award”) the Ld. Arbitrator had adjudicated (amongst other reliefs/directions) that:

a.    The termination by the Respondent no. 2 of the Space Buyer Agreement dated 31.03.2007 was illegal and void;

b.    The Respondent no. 2 was directed to execute a sale deed of the basement in favour of the Corporate Debtor on the Corporate Debtor paying to the Respondent no. 2 at time of registration of sale deed Rs. XXXXX as charges of conversion of leasehold to freehold and the Corporate Debtor would prepare all the necessary papers for executing of sale deed and incur all expenses in that regard and thereafter is the Respondent no. 2 fails to execute the sale deed then the Registrar of Delhi High Court or his nominee shall execute the sale deed and get it registered on behalf of the Corporate Debtor and he shall be paid Rs. 5,000/- the Respondent no. 2 as his fee.

-  …

11. That it is pertinent to mention that the said Award was neither ever challenged by the said Respondent no. 2 nor any clarification of any manner whatsoever was sought, hence, the said Award attained finality, therefore, as per the said Award it was categorically held that the neither the Space Buyer Agreement dated 31.03.2007 (vide which the Corporate Debtor became owner of the said Basement) was ever violated by the Corporate Debtor (hence, the sale in year 2007 to the Corporate Debtor being still subsisting and valid), nor that the said Basement was property of the Respondent no. 2, hence, the only condition for execution of sale deed imposed on the Corporate Debtor was the payment of the conversion charges.

12. That neither the said relief was a time-bound relief, nor any conditional relief was granted, therefore, in no manner whatsoever it could have been interpreted/understood that if the said Corporate Debtor fails to make payment of the said conversion charges, then the said right seeking execution of sale deed would be lost/ or that the said Basement would become the property of the Respondent no. 2.

13. The with time the said Corporate Debtor was declared insolvent by the Hon’ble NCLT, and accordingly with time the said unit owners (who had filed cases against the Respondent no. 2 and the Corporate Debtor seeking registration of sale deed in the Hon’ble Karkardooma Court) had filed an application bearing no. I.A. 2615 of 2023 (hereinafter the “NCLT Application”) before the Hon’ble NCLT seeking the relief of registration of sale deeds. That in the said NCLT Application notice has already been issued by this Hon’ble Tribunal to the Corporate Debtor and the Respondent no. 2, furthermore, the Corporate Debtor (through the Ld. RP) has filed its reply wherein it has already agreed to the said factum/proposition of waiving off its right to get the said registration of the other units in its favour, and has agreed to have the same being directly registered in favour the respective unit owners.

14. That simple understanding being “as and when the said payment is made then the said Respondent no. 2 will execute the sale deed”, and if not being done then (taking the best-case scenario of the Respondent no. 2 and without prejudice to the rights of the Applicant) the said Respondent no. 2 would be liable to seek interest etc. upon the due conversion charges as and when the said sale deed is executed by the Respondent no. 2 of/towards the said Basement from the Corporate Debtor. However, now given the fact that the Corporate Debtor is in insolvency proceedings, hence, the said Respondent no. 2 can only file its claim before the Ld. RP (if not already filed) seeking payment of the said due amount (as passed vide the Award), and is obligated to get the registration done in favour of the Applicant herein (with the Corporate Debtor waiving off its right seeking registration in its favour first).

J.     That it is pertinent to mention that the Corporate Debtor is now undergoing the CIRP process and is already in a financial crunch position, hence, if complying with/by the above-mentioned scenario; then the Corporate Debtor would have to make necessary expenses and make payment of stamp duty etc. for the purpose of firstly getting the said Unit registered in its name, and once being done it would have to further execute the required sale deeds in favour of the Applicant, hence,  in lieu of the same huge monetary consideration/resources would be utilized of the Corporate Debtor and that being without any gain/advantage to/of the Corporate Debtor.

K.   That in lieu of the above-mentioned facts and circumstances, and further relying upon Section 53A of the Transfer of Property Act read with the judgment of the Hon’ble Supreme Court passed in the matter titled as “Suraj Lamps & Industries vs. the State of Haryana” dated 11.10.2011 the transfer, as well as the sale, had duly taken place, and the only obligation being upon the Corporate Debtor was to execute and register a sale deed to the said effect in favour of the said Applicant (being bonafide purchaser), and neither the said Basement can be termed to be the property of the Judgement Debtor nor of any third party, hence, the present application seeking appropriate directions to the effect of the same.

L.    That no other and/or similar application has been filed by the Applicant herein and/or is pending before this Tribunal under Section 60(5)(c) of the I&B Code, 2016 for/pertaining to the said Unit, however, other unit owners have already filed an application bearing no. I.A. 2615 of 2023 before the Hon’ble NCLT seeking the relief of registration of sale deeds. That in the said NCLT Application notice has already been issued by this Hon’ble Tribunal to the Corporate Debtor and the Respondent no. 2, furthermore, the Corporate Debtor (through the Ld. RP) has filed its reply wherein it has already agreed to the said factum/proposition of waiving off its right to get the said registration of the other units in its favour, and has agreed to have the same being directly registered in favour the respective unit owners

M. That the present application is bonafide in nature, and in the interest of justice, further, the Applicant has paid the required fees against the filing of the present application, and undertakes to pay any additional fees, if required and directed. That no prejudice shall be caused if the present application is allowed.

PRAYER

In the facts and circumstances mentioned above, the Applicant herein prays that this Hon’ble Tribunal may be pleased to pass:

a.     An order allowing the present application;

b.    An order directing the Respondent no. 1 to waive of its right seeking registration of the unit/Basement-I, having area around XXXXXXX, XXXXXXXin its favour from the Respondent no. 2;

c.     An order directing the Applicant/unit owner to directly make payment of/towards the applicable registration charges, stamp duty and other applicable charges towards the registration of the sale deeds of/for/pertaining to its unit/Basement-I having area around XXXXXXX, XXXXXXXwith the concerned government authority/entity/party and to seek/get the appointment with/of the concerned Sub-Registrar for the purpose of registration of the sale deed;

d.    An order directing the Respondent no. 2 to execute the sale deeds of/for/pertaining to unit/Basement-I having area around XXXXXXX, XXXXXXXdirectly in favour of/towards the Applicant herein, and further be present before the concerned Sub-Registrar for the purpose of registration of the same;

OR, IN ALTERNATIVE

An order appointing a Local Commissioner to directly execute the sale deed on behalf of the Respondent no. 2 of/for/pertaining to unit/Basement-I having area around XXXXXXX, XXXXXXXin favour of/towards the Applicant herein, and further be present before the concerned Sub-Registrar for the purpose of registration of the same;

and

e.     Such other and further orders as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.

APPLICANT

THROUGH

XXXXXXX

ADVOCATES

XXXXXXX, New Delhi

Mobile: XXXXXXX

Email: XXXXXXX

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI, BENCH – IV, NEW DELHI.

I.A. NO. ______ OF 2024.

IN

 C.P. (IB)-XXX/ND/2022

IN THE MATTER OF :

XXXXXXX

PVT. LTD.                                          .….FINANCIAL CREDITOR

VERSUS

XXXXXXX. ….CORPORATE DEBTOR

AND IN THE MATTER OF:

XXXXXXX                              …APPLICANT

VERSUS

XXXXXXX. & ANR. …RESPONDENTS

AFFIDAVIT OF SH XXXX, S/O SH.  XXXXX, R/O XXXXXXX, WHO DO HEREBY SOLEMNLY AFFIRM AND DECLARE AS UNDER:

1.     That I, the Deponent, am the Applicant in the above-said application, hence, as such I am competent and well conversant with the facts of the present case.

2.     That the accompanying application has been prepared by my advocate under my instructions, and is based on the information and documentation provided by me. That I say that the contents mentioned in Para A to L of the said application herein are true and correct to the best of my knowledge and belief.

DEPONENT

VERIFICATION

Verified at _______ on ___ this day of July, 2024 that the contents of the above affidavit are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom.                   

                                                                                                                    DEPONENT