RWA Application - Latest

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
Gurugram, Haryana
3 Arti Jain Applicant No.3

Unit 15
Gurugram, Haryana
4 Arush Applicant No.4

Unit 301
Gurugram, Haryana
5 Manjeet Singh Applicant No.5

Unit 202
Gurugram, Haryana
6 Anubahv Jain Applicant No.6

Unit 301A
Gurugram, Haryana
7 Mohan Prakash Sharma Applicant No.7

Unit 203A
Gurugram, Haryana
8 Rajesh M.K. Rishi Applicant No.8

Unit 203
Gurugram, Haryana
9 Moumohan Applicant No.9

Unit 12A
Gurugram, Haryana
10 Poonam Jain Applicant No.10

Unit 405
Gurugram, Haryana
11 Rajesh Yadav Applicant No. 11

Unit 001
Gurugram, Haryana
12 Baij Nath Ram Nath Applicant No. 12

Unit 102
Gurugram, Haryana
13 Balraj Kapoor Applicant No.13
Unit 103
Gurugram, Haryana
14 Chander Kanta Applicant No.14

Unit 104
Gurugram, Haryana
15 Baij Nath Ram Nath Pvt. Ltd. Applicant No.15

Unit 105
Gurugram, Haryana
16 Rajeev Kapoor Applicant No.16

Unit 106
Gurugram, Haryana
17 Sarb Balraj Kapoor and sons Applicant No.17

Unit 106A
Gurugram, Haryana
18 Harish Seth and Madhu Seth Applicant No. 18

Unit 10
Gurugram, Haryana

Unit 11
Gurugram, Haryana
20 Harish Seth and Madhu Seth Applicant No.20

Unit 12
Gurugram, Haryana
21 Vijai Shankar Lugani Applicant No.21

Unit 403
Gurugram, Haryana
22 Varun Khandilwal Applicant No. 22

Unit 306
Gurugram, Haryana
23 Nidhi Sharma Applicant No.23

Unit 005
Gurugram, Haryana
24 Harbir Singh Wirk Applicant No.24

Unit 501
Gurugram, Haryana

Unit 502
Gurugram, Haryana
26 Alok Tanwar Applicant No. 26

Unit 208
Gurugram, Haryana
27 Sunil Jain Applicant No. 27

Unit 505
Gurugram, Haryana
28 Praveen Kamal Taneja Applicant No.28

Unit 406B/407
Gurugram, Haryana
29 Simran Kanwar Applicant No. 29

Unit 511
Gurugram, Haryana
30 Sahil Kanwar Applicant No.30

Unit 512
Gurugram, Haryana
31 D.K. Maurya Applicant No.31

Unit 209
Gurugram, Haryana
32 Anita Khanna Applicant No.32

Unit 410
Gurugram, Haryana
33 SPS Enterprise Applicant No.33

Unit 206
Gurugram, Haryana
34 Aparajita Kalucha Applicant No.34

Unit 14
Gurugram, Haryana
35 Chander Cazawea Applicant No.35

Unit 401
Gurugram, Haryana
36 Roopa Sood Applicant No.36

Unit 406A
Gurugram, Haryana
37 Sandhya Malhotra Applicant No.37

Unit 404
Gurugram, Haryana
38 Rakesh Gupta for Kadimi International Pvt. Ltd. Applicant No.38

Unit 702
Gurugram, Haryana
39 Uday Gupta Applicant No.39
Unit 205
Gurugram, Haryana
40 Ravinder Nath for Agora Developers Pvt. Ltd. Applicant No.40

Unit 701
Gurugram, Haryana

Unit 703
Gurugram, Haryana

Unit 704
Gurugram, Haryana
43 Bajrang Lal Bajaj Applicant No.43

Unit 308
Gurugram, Haryana
44 Abha Kashyap Applicant No.44

Unit 305
Gurugram, Haryana
45 Monika Jain Applicant No. 45

Unit 110
Gurugram, Haryana
46 Monika Jain Applicant No.46

Unit 111
Gurugram, Haryana
47 Sushma Chandra Applicant No.47

Unit 207
Gurugram, Haryana
48 Kirti Lal Julka Applicant No.48

Unit 007
Gurugram, Haryana
49 Ganeshi Lal Jain Applicant No.49

Unit 008
Gurugram, Haryana

Unit 009
Gurugram, Haryana
51 Anju Gupta Applicant No.51

Unit 208A
Gurugram, Haryana
52 Jyoti Arora Applicant No.52

Unit 204
Gurugram, Haryana
53 Y.R. Sachdeva Applicant No.53

Unit 408
Gurugram, Haryana
54 Siddharth Banerji Applicant No.54

Unit 302A
Gurugram, Haryana

Unit 201/201A
Gurugram, Haryana
56 Sanjeev Yadav and sons Applicant No.56
Unit 002
Gurugram, Haryana
57 M/s Bajaj Auto Ltd. Applicant No.57

Unit 003
Gurugram, Haryana

Unit 004
Gurugram, Haryana
59 M/s SPS Enterprise Applicant No.59

Unit 006
Gurugram, Haryana
60 Gursharan Singh and Dapinder Singh Applicant No.60

Unit 101
Gurugram, Haryana
61 Balraj M Kateja Applicant No.61

Unit 107
Gurugram, Haryana
62 Suman Sachdev Applicant No.62

Unit 107A
Gurugram, Haryana
63 Manjit Kaur Sawhney and Prithipal Singh Sawhney Applicant No.63

Unit 109
Gurugram, Haryana
64 Air Cargo Express Pvt. Ltd. Applicant No.64

Unit 112
Gurugram, Haryana
65 Smt. Seema Gupta Applicant No.65

Unit 112A
Gurugram, Haryana
66 Rakesh Gupta Applicant No.66

Unit 114
Gurugram, Haryana
67 DCT Infotech Applicant No.67

Unit 202A
Gurugram, Haryana
68 Air Shagoon Pvt. Ltd. Applicant No.68

Unit 302
Gurugram, Haryana
69 Veena Jain Applicant No.69

Unit 303
Gurugram, Haryana
70 Pramod Kumar Jain Applicant No.70

Unit 303A
Gurugram, Haryana
71 Shilpi Jain Applicant No.71

Unit 304
Gurugram, Haryana
72 Piyush Jain Applicant No.72

Unit 304A
Gurugram, Haryana
73 Ms. Namrata Applicant No.73

Unit 307
Gurugram, Haryana
74 Anil K Kher Applicant No.74

Unit 402
Gurugram, Haryana
75 Pradeep Kumar HUF and Ashwini Kumar Applicant No.75

Unit 409
Gurugram, Haryana
76 Ritu Sachdeva Applicant No.76

Unit 503
Gurugram, Haryana
77 Kripa Nidhan Singh and Harvinder Singh Applicant No.77

Unit 504A
Gurugram, Haryana
VERSUS
RESOLUTION PROFESSIONAL
REGN. NO.: IBBI/IPA-002/IP-N00315/2017-18/10903
PROCESS)
...RESPONDENT
PRINCIPAL BENCH
I.A. NO._____OF 2020
IN
C.P. (I.B) NO. 1756 (PB) OF 2018
IN THE MATTER OF:-

VERSUS

PROCESS)
ACTING THROUGH
RESOLUTION PROFESSIONAL …CORPORATE DEBTOR
AND
IN THE MATTER OF:-
ABW TOWER CONDOMINIUM ASSOCIATION & ORS.

...Applicants
VERSUS
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.

Part 2
16. ANNEXURE CA-15.

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.


1.2
Form CA & Enclosures- ABW Tower

1.2
22. ANNEXURE CA- 21

1.2
23. ANNEXURE CA- 22

1.2
24. ANNEXURE CA- 23

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

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

VERSUS

PROCESS)
ACTING THROUGH
…CORPORATE DEBTOR
MEMO OF PARTIES
1 ABW TOWER CONDOMINIUM ASSOCIATION Applicant No. 1

Gurugram, Haryana
2 Deepak Bhandari Applicant No. 2

Unit 201A
Gurugram, Haryana
3 Arti Jain Applicant No.3

Unit 15
Gurugram, Haryana
4 Arush Applicant No.4

Unit 301
Gurugram, Haryana
5 Manjeet Singh Applicant No.5

Unit 202
Gurugram, Haryana
6 Anubahv Jain Applicant No.6

Unit 301A
Gurugram, Haryana
7 Mohan Prakash Sharma Applicant No.7
Unit 203A
Gurugram, Haryana
8 Rajesh M.K. Rishi Applicant No.8

Unit 203
Gurugram, Haryana
9 Moumohan Applicant No.9

Unit 12A
Gurugram, Haryana
10 Poonam Jain Applicant No.10

Unit 405
Gurugram, Haryana
11 Rajesh Yadav Applicant No. 11

Unit 001
Gurugram, Haryana
12 Baij Nath Ram Nath Applicant No. 12

Unit 102
Gurugram, Haryana
13 Balraj Kapoor Applicant No.13

Unit 103
Gurugram, Haryana
14 Chander Kanta Applicant No.14

Unit 104
Gurugram, Haryana
15 Baij Nath Ram Nath Pvt. Ltd. Applicant No.15

Unit 105
Gurugram, Haryana
16 Rajeev Kapoor Applicant No.16

Unit 106
Gurugram, Haryana
17 Sarb Balraj Kapoor and sons Applicant No.17

Unit 106A
Gurugram, Haryana

Unit 10
Gurugram, Haryana

Unit 11
Gurugram, Haryana
20 Harish Seth and Madhu Seth Applicant No.20

Unit 12
Gurugram, Haryana
21 Vijai Shankar Lugani Applicant No.21

Unit 403
Gurugram, Haryana
22 Varun Khandilwal Applicant No. 22

Unit 306
Gurugram, Haryana
23 Nidhi Sharma Applicant No.23

Unit 005
Gurugram, Haryana
Unit 501
Gurugram, Haryana

Unit 502
Gurugram, Haryana
26 Alok Tanwar Applicant No. 26

Unit 208
Gurugram, Haryana
27 Sunil Jain Applicant No. 27

Unit 505
Gurugram, Haryana
28 Praveen Kamal Taneja Applicant No.28

Unit 406B/407
Gurugram, Haryana
29 Simran Kanwar Applicant No. 29

Unit 511
Gurugram, Haryana
30 Sahil Kanwar Applicant No.30

Unit 512
Gurugram, Haryana
31 D.K. Maurya Applicant No.31

Unit 209
Gurugram, Haryana
32 Anita Khanna Applicant No.32

Unit 410
Gurugram, Haryana
33 SPS Enterprise Applicant No.33

Unit 206
Gurugram, Haryana
34 Aparajita Kalucha Applicant No.34

Unit 14
Gurugram, Haryana
35 Chander Cazawea Applicant No.35

Unit 401
Gurugram, Haryana
36 Roopa Sood Applicant No.36

Unit 406A
Gurugram, Haryana
37 Sandhya Malhotra Applicant No.37

Unit 404
Gurugram, Haryana
38 Rakesh Gupta for Kadimi International Pvt. Ltd. Applicant No.38

Unit 702
Gurugram, Haryana
39 Uday Gupta Applicant No.39

Unit 205
Gurugram, Haryana

Unit 701
Gurugram, Haryana

Unit 703
Gurugram, Haryana

Unit 704
Gurugram, Haryana
43 Bajrang Lal Bajaj Applicant No.43

Unit 308
Gurugram, Haryana
44 Abha Kashyap Applicant No.44

Unit 305
Gurugram, Haryana
45 Monika Jain Applicant No. 45

Unit 110
Gurugram, Haryana
46 Monika Jain Applicant No.46

Unit 111
Gurugram, Haryana
47 Sushma Chandra Applicant No.47

Unit 207
Gurugram, Haryana
48 Kirti Lal Julka Applicant No.48

Unit 007
Gurugram, Haryana

Unit 008
Gurugram, Haryana
Unit 009
Gurugram, Haryana
51 Anju Gupta Applicant No.51

Unit 208A
Gurugram, Haryana
52 Jyoti Arora Applicant No.52

Unit 204
Gurugram, Haryana
53 Z. R. Sachdeva Applicant No.53

Unit 408
Gurugram, Haryana

Unit 302A
Gurugram, Haryana

Unit 201/201A
Gurugram, Haryana
56 Sanjeev Yadav and sons Applicant No.56

Unit 002
Gurugram, Haryana

Unit 003
Gurugram, Haryana

Unit 004
Gurugram, Haryana
59 M/s SPS Enterprise Applicant No.59

Unit 006
Gurugram, Haryana
60 Gursharan Singh and Dapinder Singh Applicant No.60

Unit 101
Gurugram, Haryana
61 Balraj M Kateja Applicant No.61

Unit 107
Gurugram, Haryana
62 Suman Sachdev Applicant No.62

Unit 107A
Gurugram, Haryana
63 Manjit Kaur Sawhney and Prithipal Singh Sawhney Applicant No.63

Unit 109
Gurugram, Haryana
64 Air Cargo Express Pvt. Ltd. Applicant No.64

Unit 112
Gurugram, Haryana
65 Smt. Seema Gupta Applicant No.65

Unit 112A
Gurugram, Haryana
66 Rakesh Gupta Applicant No.66

Unit 114
Gurugram, Haryana
67 DCT Infotech Applicant No.67
Unit 202A
Gurugram, Haryana
68 Air Shagoon Pvt. Ltd. Applicant No.68

Unit 302
Gurugram, Haryana
69 Veena Jain Applicant No.69

Unit 303
Gurugram, Haryana
70 Pramod Kumar Jain Applicant No.70

Unit 303A
Gurugram, Haryana
71 Shilpi Jain Applicant No.71

Unit 304
Gurugram, Haryana
72 Piyush Jain Applicant No.72

Unit 304A
Gurugram, Haryana
73 Ms. Namrata Applicant No.73

Unit 307
Gurugram, Haryana
74 Anil K Kher Applicant No.74

Unit 402
Gurugram, Haryana
75 Pradeep Kumar HUF and Ashwini Kumar Applicant No.75

Unit 409
Gurugram, Haryana
76 Ritu Sachdeva Applicant No.76

Unit 503
Gurugram, Haryana
77 Kripa Nidhan Singh and Harvinder Singh Applicant No.77

Unit 504A
Gurugram, Haryana
78 Satish Kumar Virmani and Sunena Virmani Applicant No.78

Unit 504B
Gurugram, Haryana
79 Vinay Raj Aggarwalla and Kamma Raj Aggarwalla Applicant No.79

Unit 506
Gurugram, Haryana
80 Naveen Kumar Suri Applicant No.80

Unit 507
Gurugram, Haryana
81 M/s Balaji Security Service Pvt. Ltd. Applicant No.81

Unit 508
Gurugram, Haryana
82 M/s Emrald Estate (P)Ltd. Applicant No.82

Unit 509
Gurugram, Haryana
83 M/s Supreme Infrastructure India Ltd. Applicant No.83

Unit 510
Gurugram, Haryana
84 Premium Estate Pvt. Ltd. Applicant No.84

Unit 601 to 604
Gurugram, Haryana
[PLEASE SELECT THE OWNERS WHO WOULD

LIKE TO JOIN]
VERSUS
2. MR. SAPAN MOHAN GARG,

email ID: sapan10@yahoo.com
MOB.: 9810502994
ADD: D-54, First Floor,
Defence Colony, Delhi, 110024.
ACTING FOR
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
ABW Tower CA-14
Condominium
Association- Set of
Documents Part 2
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
Enclosures- ABW CA-20
Tower Condominium
Association- Set of
documents 1.2
Enclosures-ABW CA-21
Tower Condominium
Association- Set of
Documents 1.2
Tower Condominium
Association- Set of
Documents 1.2
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

RWA Application - Latest

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

RWA Application - Latest

Uploaded by

Copyright:

Available Formats

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

I.A. NO._____OF 2020

IN THE MATTER OF:-

JAGAT PAL PALIWAL & ANOTHER

JASSUM PROPCON PROJECTS PRIVATE LIMITED

1 ABW TOWER CONDOMINIUM ASSOCIATION Applicant No. 1

2 Deepak Bhandari Applicant No. 2

3 Arti Jain Applicant No.3

4 Arush Applicant No.4

5 Manjeet Singh Applicant No.5

6 Anubahv Jain Applicant No.6

7 Mohan Prakash Sharma Applicant No.7

8 Rajesh M.K. Rishi Applicant No.8

9 Moumohan Applicant No.9

10 Poonam Jain Applicant No.10

11 Rajesh Yadav Applicant No. 11

12 Baij Nath Ram Nath Applicant No. 12

14 Chander Kanta Applicant No.14

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

16 Rajeev Kapoor Applicant No.16

17 Sarb Balraj Kapoor and sons Applicant No.17

18 Harish Seth and Madhu Seth Applicant No. 18

19 Harish Seth and Madhu Seth Applicant No. 19

20 Harish Seth and Madhu Seth Applicant No.20

21 Vijai Shankar Lugani Applicant No.21

22 Varun Khandilwal Applicant No. 22

23 Nidhi Sharma Applicant No.23

24 Harbir Singh Wirk Applicant No.24

25 Harbir Singh Wirk Applicant No.25

26 Alok Tanwar Applicant No. 26

27 Sunil Jain Applicant No. 27

28 Praveen Kamal Taneja Applicant No.28

29 Simran Kanwar Applicant No. 29

30 Sahil Kanwar Applicant No.30

31 D.K. Maurya Applicant No.31

32 Anita Khanna Applicant No.32

33 SPS Enterprise Applicant No.33

34 Aparajita Kalucha Applicant No.34

35 Chander Cazawea Applicant No.35

36 Roopa Sood Applicant No.36

37 Sandhya Malhotra Applicant No.37

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

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

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

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

43 Bajrang Lal Bajaj Applicant No.43

44 Abha Kashyap Applicant No.44

45 Monika Jain Applicant No. 45

46 Monika Jain Applicant No.46

47 Sushma Chandra Applicant No.47

48 Kirti Lal Julka Applicant No.48

49 Ganeshi Lal Jain Applicant No.49

50 Ganeshi Lal Jain Applicant No.50

51 Anju Gupta Applicant No.51

52 Jyoti Arora Applicant No.52

53 Y.R. Sachdeva Applicant No.53

54 Siddharth Banerji Applicant No.54

55 Siddharth Banerji Applicant No.55

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

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

59 M/s SPS Enterprise Applicant No.59

60 Gursharan Singh and Dapinder Singh Applicant No.60

61 Balraj M Kateja Applicant No.61