Tamil Nadu

StateCommission

CC/110/2019

S.Jayanthi Saraswathi, W/o G.Shanmugam, No.1742, Vasantham Colony, First Street, Anna Nagar west, Chennai-600 040. - Complainant(s)

Versus

P dot G Constructions Pvt Ltd (under CIRP) Mr.Sundaresan Manager P dot G Innova Flats, Door No.68, S - Opp.Party(s)

M/s.T.S.Rajamohan

31 May 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

            Thiru.R.VENKATESAPERUMAL … MEMBER

 

C.C. No.110 of 2019

                                                    

                               Orders pronounced on:  31.05.2022

S.Jayanthi Saraswathi,

W/o.G.Shanmugam,

No.1742, Vasantham Colony,

First Street, Anna Nagar West,

Chennai 600 040.                                     … Complainant

vs.

M/s.P dot G Constructions (P) Ltd. (under CIRP),

(A Company registered with the Companies Act, 1956),

Now represented by the Resolution Professional

Mr. Sundaresan Nagarajan,

P dot G Innova Flats,

Door No.68 (S.No.682/A),

Narivanam Street, Addison Nagar Main Road,

Mangadu P.O., Chennai 600 102.            … Opposite Party.

 

             For Complainant      : M/s.V.P.Raju

             For Opposite Party   : M/s.Adithya Suresh

 

This Complaint came up for final hearing on 21.04.2022 and, after hearing the arguments of the counsel for the Parties and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

R.Subbiah, J. – President.

 

             Alleging service deficiency against the OP/Builder on the ground that they failed to construct and hand over possession of the residential flat booked by her even after full payment of sale consideration for the undivided share of land as well as the construction costs, the complainant seeks to direct the OP/Builder to repay Rs.37 lakh paid by her for the construction of residential flat and Rs.5 lakh as compensation, besides costs of the Complaint.

 

             2. Learned counsel appearing for the OP/Builder, at the outset, has argued over maintainability of the Complaint by stating that, way back on 13.07.2018, Corporate Insolvency Resolution Process was initiated against the OP which resulted in appointment of an Interim Resolution Professional (in short IRP) – one Mr.T.V.Subramanian, who was subsequently replaced on 19.07.2018 with one Mr.Premachandran; that consequent to the public announcement under Regulation-6 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporation Persons) Regulations, 2016, claims were received from the creditors by the IRP; that, after verification of the claims received, the IRP constituted a Committee of Creditors (COC) on 18.08.2018; that, after the first meeting of the COC held on 23.08.2018, one Mr.Sundaresan Nagarajan was appointed as Resolution Professional (RP) on 20.09.2018; that, on 28.04.2019, at the instance of COC, by way of final list, eligible prospective Resolution Applicants were ascertained, who were invited to submit the Resolution Plan on 29.04.2019  and the cut-off date for submitting the Resolution Plan was specified as 15.05.2019;  and that ultimately, the “Resolution Plan” was approved by the National Company Law Tribunal (in short NCLT), Division Bench-I, Chennai, vide common  orders, dated 13.12.2019 passed in CP/193/IB/2018, etc., with the following observation/direction:-

           “27.8.  Thus the Resolution Plan is hereby approved and is binding on the Corporate Debtor and other stakeholders involved so that revival of the Debtor Company shall come into force with immediate effect and the “Moratorium” imposed under Section 14 of IBC, 2016 shall not have any effect henceforth.  The Resolution Professional shall submit the records collected during the commencement of the Proceedings to the Insolvency & Bankruptcy Board of India for their record and also return to the Resolution Applicant or New Promoters.  Certified copy of this Order be issued on demand to the concerned parties, upon due compliance.  Liberty is hereby granted for moving any Miscellaneous Application if required in connection with implementation of this Resolution Plan. …”

After so stating, learned counsel points out that the Resolution Plan approved by the above order of the NCLT specifically states that the Builder/present OP is entitled to seek an increased demand from the Home Buyers including the complainant. In that regard, he drew our attention to the following text from clause-vi under Chapter-4 of the approved Resolution Plan, dated 26.05.2019:-

          “(vi). Since Home Buyers are also financial creditors as per terms of the Code, they shall be required collectively to bear the proportionate financial burden for the Resolution Plan along with other financial creditors.  Such burden shall be by way of infusion of further monies on per sq. ft. of area purchased by them. ...“

Learned counsel specifically points out that the complainant, having filed a claim before the RP (Resolution Professional)  and the same having been seized by him for resolution process, cannot maintain this Complaint any further, in view of clause-xi under Chapter-4 captioned ‘CLAIMS, LIABILITIES AND TREATMENT’ in the very same approved Resolution Plan that runs to the following effect:-

        “All Home Buyers of the Corporate Debtor shall apply for withdrawal of all legal proceedings (including proceedings mentioned at Annexure 10) commenced against the Corporate Debtor in relation to delivery of flats/units/Projects, Claims or otherwise including proceedings under Consumer Protection Act, 1986 and Real Estate (Regulation and Development) Act, 2016 and seek quashing of criminal proceedings including proceedings under Section 138 of the Negotiable Instruments Act, 1881, within a period of 30 (thirty) days of the Effective Date and ensure that the said legal proceedings shall be withdrawn. Any claim or rights accruing to the Home Buyers and any liability of the Corporate Debtor to make payment to such claim/right in relation to any dues pronounced by any judicial authority, for the previous period (ie., prior to Effective Date) which may arise in future shall stand extinguished/waived”. 

According to the learned counsel, having accepted the terms of the Approved Resolution Plan, now the complainant has no other option but to withdraw the present Complaint before this Commission. Once again by referring to the above factual sequence, broadly detailed by the OP in the form of a written version, learned counsel re-states that, since the complainant has approached the RP with the claim and since she is now bound by the terms of the Approved Resolution Plan that obligates her through clause-vi under Chapter-4 thereof to withdraw the present proceedings against the OP/Builder, this Complaint cannot be maintained by her any more.

 

             3. Per contra, learned counsel appearing for the complainant, although made no submission disputing the above state of affairs projected on the side of the OP both in the written version as well as in the course of arguments, only states that the complainant would come forward to withdraw the present proceedings only after filing of proof affidavit and marking of documents by the OP. 

 

             4.Having considered the materials on record as well as the submissions made above, we find no justification whatsoever in the stand of the complainant. The present scenario is not the same as was prevalent at the time of filing of the present complaint.  The complainant herself, by filing the claim on the present subject matter before the RP, who has been seized of the matter, has subjected        herself to the jurisdiction of the RP connected to the Corporate Insolvency Resolution Process.  If she was aggrieved by the approval of Resolution Plan by the NCLT, she could have very well challenged the same before the Appellate Tribunal and, by not doing so, explicitly, she accepted the Approved Resolution Plan, as per which, under Chapter-4/clause-vi, she shall apply for withdrawal of the present proceedings/Complaint and such process cannot be submerged on the pointless reason that she would wait till the OP files proof affidavit and documents.   Inasmuch as the present complaint can no longer be maintained due to the change of scenario in which the complainant has already subjected herself to the jurisdiction of the RP who is said to be in progress with the resolution process, the same is liable to be dismissed.

             5. In the result, the Complaint is dismissed as not maintainable, for the reasons stated above.  No costs.

            

R.VENKATESAPERUMAL                                           R.SUBBIAH, J.

MEMBER                                                                             PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/MAY/2022.