ORDER

Per: BENCH I.A No. 457 of 2022

1. The presentapplication is filed on 10.08.2022 by the applicant seeking to direct the respondent liquidator of M/s Samruddhi Reality Ltd (in liquidation) to register the Flat No. 14B, 14^th Floor in “Samruddhi Sunshine” in favour of the Applicant after receipt of balance amount of Rs. 1,00,000/- from the Applicant and to exclude the said Flat from the Liquidation Estate of the Corporate debtor.

2. The facts of the application as narrated by the applicant is as follows:

a) The Applicant entered into an “Agreement to Sale and Construction” on 04.05.2013 with respect to an apartment in “Samruddhi Sunshine” the Applicant had paid to Respondent 97% of the consideration amounting to Rs. 34,00,000/- out of Rs. 35,00,000/- towards sale and construction of apartment and the same was registered in the name of the Applicant on 04.05.2013. The ‘Agreement of Sale and Construction’ was registered with the Sub-Registrar, Bommanahalli, Bangalore, on 4.05.2013. As per Clause 7 of the agreement the construction of flat/apartment was to be completed within 36 months of signing of the said agreement subject to “force majeure”.

b) It is submitted that without the knowledge of Applicant, the Corporate Debtor- company in liquidation had entered into Mortgage Deed with with M/s INDIABULLS HOUSING FINANCE LTD on 26.07.2016 and one of the flat bearing no. 14B was given as security to the Mortgagee.

c) The Applicant has obtained encumbrance certificate from the sub- registrar on 17.06.2020 and on 19.07.2022, which shows that the flat still stands in the name of the Applicant.

d) The applicant submits that this Tribunal vide order dt.13.03.2020 in CP (IB) No. 189/2018 passed a liquidation order by which the Respondent Mr. Pankaj Srivastava has been appointed as Liquidator of M/s Samruddhi Reality Ltd. and that on 17.03.2020 the respondent liquidator made a public announcement inviting claims from the public. In response to the advertisement the applicant has made a claim of Rs. 99, 00, 735 out of which the Respondent liquidator had admitted Rs. 50, 69, 721.

e) Further, the applicant has written letter dt.23.07.2022 requesting the liquidator to register the flat in Applicant’s name and to exclude the flat/apartment allotted to the applicant from the liquidation estate of the corporate debtor. The applicant had also proposed to bear the expenses relating to registration of sale deed as well the construction of remaining work co-jointly with other flat allottees.

f) It is submitted that the Respondent/liquidator vide reply dt.11.07.2022 rejected the request of the applicant by stating that mere agreement to sell or possession over property does not amount to the ownership of that property and reliance placed on section 54 of the Transfer of Property Act, 1882. The respondent/liquidator has relied on the Apex Court’s decision in the case of NarandasKasondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247 and Suraj Lamp and Industries P. Ltd. v. State of Haryana and Ors. AIR (2012)206 to state that the ownership is said to complete only after executing and registering the valid deed of conveyance.

g) The present application has been filed by the applicant being aggrieved by the fact that the Flat no.14B in the Schedule Property B is included in the Liquidation estate of the Corporate Debtor and that no action is being taken to register the flat vide sale deed in favour of the applicant.

3. The Learned Counsel for the respondent filed in its objection/written submission inter alia contenting the following:

a) The respondent is the liquidator of the Corporate Debtor, M/s Samruddhi Reality Limited and the CD has entered into a mortgage deed dt.26.07.2016 with Indiabulls Asset Reconstruction Company (INDIABULLS) vide loan agreements dt.30.06.2016 for amounts of Rs 3,30,00,000 and Rs. 10,20,00,000 vide which the CD has created mortgage over the property/flat 14B which is alleged to be in possession of the applicant. The charge created over the s