BEFORE

HON'BLE MR SUBHASH CHANDRA, PRESIDING MEMBER

For the Appellant                 Mr Paras Choudhary, Advocate

For the Respondents            Ms Tanya, Advocate for Mr Ajit Kakkar

                                        Advocate along with Mr Gaurav Saxena

                                        Respondent no.2 – IN PERSON

                                        Mr Shikhar Khare, Advocate for R 3

ORDER

1.          This first appeal has been filed by the appellant under Section 19 of the Consumer Protection Act, 1986 (in short, ‘the Act’) against the order dated 04.08.2021 and 24.09.2021 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (in short ‘State Commission’) in CC no. 393 of 2018 and MA no.103 of 2021, wherein the State Commission had directed the appellant to handover the possession of the allotted unit within a period of 30 days from the date of final order along with interest @ 12% per annum on the amount deposited by respondent nos.1 and 2 or to refund the entire amount deposited by the respondents with 15% interest per annum from the date of deposit till the date of actual payment.

2.     The facts, in brief, are that respondents had booked a unit in the project named Kensington Park I, which was being developed and promoted by Jaypee Infratech Limited (in short, ‘JIL’) which was under moratorium in terms of Section 14 of the Insolvency and Bankruptcy Code (IBC).  It was submitted that Jaiprakash Associates Ltd., (in short, ‘JAL’) was doing the booking and was also carrying out the construction work on behalf of JIL. According to the appellant, the land on which the said project was being developed belongs to JIL and all payments were being made by the respondents to JIL. It was stated that an IRP representing JIL had submitted that JAL was only a construction agency which was carrying out the work on behalf of JIL.

3.     It was stated that the respondent nos. 1 and 2 had paid a sum of Rs.27,98,750/- till 05.06.2010 with the appellant for allotment of a unit namely KPA 01- 301, Jaypee Greens, Noida. A provisional allotment letter was also issued by the appellant in favour of the respondents on 29.04.2010. It was further submitted that the total cost of the unit was Rs.34,98,300/- and the revised cost and consideration was issued by the appellant was Rs.30,72,000/- which was paid by the respondents. Despite payment of the amounts the unit has not been handed over to the respondents. Hence, the respondents filed a complaint before the State Commission with a request to direct the appellants to immediately hand over the possession of the allotted unit to the respondent and to set aside the letter of offer of possession on 28.09.2018.

4.     The State Commission after hearing the learned counsel for the complainant had allowed the complaint with the following order:

The opposite parties are directed either to hand over the possession of the allotted unit to the complainants in complete required condition as agreed in between the parties within a period of 30 days from today and further to calculate the interest payable which is to be paid by the opposite parties to the complainant at the rate of 12% per annum on the amount deposited from the date of deposit till the date of actual possession/ payment made by the opposite parties to the complainants or to refund the entire amount deposited by the complainants in 2010 and to pay interest at the rate of 15% per annum from the dates of deposits till the date of payment.

The opposite parties are also directed to pay a sum of Rs.1,00,000/- towards cost of the physical and mental harassment and agony to the complainant and Rs.25,000/- cost towards the complaint case.

5.     The IDBI Bank Limited – Applicant/ Financial Creditor had approached the National Company Law Tribunal, New Delhi (NCLT) which vide its order dated 07.03.2023 had approved the Resolution Plan submitted by M/s Surakasha Reality Ltd.  Under the said Resolution Plan, M/s Surakasha Reality Ltd., had to complete the project and hand over possession in a time bound manner.

6.     I have heard the learned counsel for the parties and have carefully considered the material on record.

7.     A Coordinate Bench of this Commission has already addressed this issue in the case of Ranjit Singh Bhansali vs Jaiprakash Associates Ltd., and Anr., in Consumer Case no. 1847 of 2017 decided on 11.03.2024, with regard to Section 31 of the Insolvency & Bankruptcy Code, 2016.  Section 31 of Insolvency & Bankruptcy Code, 2016 reads as follows:

Section-31(1): Approval of Resolution Plan:- If adjudicatory authority is satisfied that the resolution plan as approved by committee of creditors under sub-section (4) of Section 30 meets the requirements as referred to sub-section (2) of Section 30, it shall by order approve the resolution plan, which shall be binding on corporate debtor and its employees, members, creditors, including central government or state government or any local authority to whom a debt in respect of payment of dues, arising under any law for the time being enforce, such an authority to whom statutory dues are owed, guarantors and other stake holders involved in the resolution plan.

8.     The Hon’ble Supreme Court in Ghanshyam Mishra & Sons (P) Ltd. Vs. Edelweiss Assets Reconstruction Co. Ltd., (2021) 9 SCC 657, has held that:

once the Resolution Plan is duly approved by adjudicating authority under sub-section(1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the corporate debtor and its employees, members, creditors, including the Central Government any State Government or any local authority, guarantors and other stake holders. On the date of approval of Resolution Plan by the adjudicating authority, all such claims, which are not part of the Resolution Plan shall stand extinguished and no person will be entitled to initiate or continue any proceeding in respect of a claim, which is not part of the Resolution Plan.

9.     In Ajay Kumar Radheyshyam Goenka Vs. Tourism Finance Corporation of India, 2023 SCC OnLine SC 266, the Hon’ble Supreme Court held that :

Thus, from the aforesaid, it is evident that the creditor has no option but to join the process under the IBC. Once the plan is approved, it would bind everyone under the sun. The making of a claim and accepting whatever share is allotted could be termed as an “Involuntary Act” on behalf of the creditor. The making of a claim under the IBC and accepting the same and not making any claim, will not make any difference in light of Section 31 of the IBC. Both the situations will lead to Section 31 and the finality and binding value of the resolution plan.

10.   In view of the foregoing discussion, when it is not in dispute that a Resolution Plan is approved, the present First Appeal does not lie in view of Section 31 of the IBC. Accordingly, the appeal is disposed of with the directions to the Respondents to avail the remedy available as per the approved Resolution Plan.