The New Delhi Principal Bench of the National Company Law Appellate Tribunal (NCLAT) has held that a belated claim filed by a commercial entity after approval of the resolution plan by the CoC need not be condoned, particularly where admitting such claim would reopen the CIRP contrary to the time-bound scheme of the IBC. Further, where the claimant’s name does not appear in the list of protected allottees forming part of the SARFAESI sale certificate, the corporate debtor cannot be held liable for such claim.
The Tribunal further held that allotment of flats in lieu of legal fees, without any disbursement by the claimant to the corporate debtor, does not amount to a financial debt under Section 5(8) of the IBC. The essential requirement of disbursal against consideration for time value of money remains mandatory, and in its absence the claimant cannot be treated as a financial creditor.
The Division Bench comprising Justice Ashok Bhushan (Chairperson) and Barun Mitra (Technical Member) observed that the adjudicating authority committed no error in refusing to condone the delay. The appellant was a commercial entity, the resolution plan had already been approved by the CoC before the claim was filed, and the case was governed by the principle that CIRP is a time-bound process and belated claims cannot be permitted to reopen the resolution process.
The Tribunal pointed out that the present appellant was not a homebuyer whose payments were reflected in the record of the corporate debtor. It observed that the appellant’s claim was not reflected in the corporate debtor’s records, and therefore the appellant could not claim the benefit of the principle that the RP must collate claims of homebuyers even if such claims are not formally filed.
On merits, the Tribunal found that the sale certificate in favour of the corporate debtor specifically preserved only those encumbrances relating to flats allotted to allottees listed in Annexure 1, and the appellant’s name did not figure in that list. Hence, the corporate debtor could not be saddled with liability towards the appellant merely because the asset was sold on “as is where is” basis.
The Tribunal also observed that the appellant’s claim, being based on allotment of flats in lieu of legal fees, did not involve any disbursement by the appellant to the corporate debtor. Therefore, the claim did not satisfy the essential element of “disbursal against the consideration for time value of money” required under Section 5(8) of the IBC, and could not be treated as a financial debt.
Briefly, the appellant, a legal firm, claimed that M/s Akme Projects Limited had allotted to it three flats in the AKME Raga project on March 09, 2015 in lieu of professional legal fees. Further to it, Yes Bank had extended financial facilities of Rs. 63 crores to Akme Projects Limited, classified its account as NPA, and enforced security under the SARFAESI Act, 2002 in respect of the mortgaged land. In the SARFAESI process, the secured asset was auctioned and sold to Grandstar Realty Pvt Ltd. under a sale certificate dated July 19, 2016, which recorded that the sale was free from encumbrances except flats allotted to respective allottees.
The CIRP against Grandstar Realty Pvt Ltd. commenced on September 26, 2023. Public announcement invited claims initially till October 10, 2023, and the timeline for submitting claims was later extended till May 26, 2024. The resolution plan was approved by the CoC in its 15th meeting held on November 15, 2024, and an application for approval of the resolution plan was filed before the NCLT on November 29, 2024. The appellant filed its claim only on January 09, 2025, asserting rights as allottee of three units.
The RP rejected the claim on February 13, 2025 on the grounds that the claim was delayed, the appellant’s name did not appear in the list of 220/221 allottees forming part of the SARFAESI sale record, and the alleged allotment was in exchange for legal fees and was not part of the assets or estate taken over by the corporate debtor. The RP further advised the appellant to lodge its claim in the CIRP of Akme Projects Limited. The NCLT dismissed the appellant’s application for condonation of delay and for admission of claim.
Appearances:
Senior Advocate Sudhir Makkar, for the Appellant
Advocates Abhishek Anand, Karan Kohli and Palak Kalra, for the Respondent
