ORDER

The present Application is filed by the Applicant, namely, Mr. Amit Kantilal Desai, under section 60(5) of the Insolvency and Bankruptcy Code, 2016 (“Code”) read with rule 11 of the National Company Law Tribunal Rules, 2016 (“NCLT Rules”).

FACTS OF THE CASE:-

1. The Applicant is a financial creditor falling in the class of “Home Buyers/Allottee” at the Project “Samrudddhi Garden” of the Corporate Debtor. The instant Interlocutory Application has been preferred by the Applicant under the provisions of section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with relevant provisions of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, further read with Rule 11 of the National Company Law Tribunal Rules, 2016.

2. The Resolution Professional has accepted claim of one “Kalpatru Advisory Services Private Limited” as a Financial Creditor in the category of homebuyer/allotee. Kalpatru Advisory Services Private Limited has allegedly provided services of project management and consultancy to the Corporate Debtor amounting to around Rs. 28.00 crores. The Corporate Debtor allegedly has issued a “letter(s) of allotment” to Kalpatru Advisory Services Private Limited, whereby allegedly certain flats/shops were allotted to Kalpatru Advisory Services Private Limited towards payment of alleged services rendered by Kalpatru Advisory Services Private Limited of the Corporate Debtor.

3. Consequent to admission of the alleged operational creditor as a financial creditor by the Resolution Professional, the Resolution Plan has allocated residential and office spaces to Kalpatru Advisory Services Private Limited.

4. Firstly, the Resolution Professional could not have accepted the claim of Kalpatru Advisory Services Private Limited as a financial creditor in the category of homebuyer as the purported claim arises out of alleged provision of services by Kalpatru Advisory Services Private Limited to the Corporate Debtor. Secondly, in fact, the alleged services are not rendered by Respondent No 3 at all at any time to the Corporate Debtor as alleged and as the flats/offices have been allotted to Respondent No 3 pursuant to a settlement between the parties. The alleged claim of Kalpatru Advisdry Services Private Limited is a false claim as no services are offered or rendered to the Corporate Debtor by Kalpatru Advisory - Services Private Limited as claimed.

5. The present Interlocutory Application is to seek relief against the decision taken by the Resolution Professional to admit the claim of the alleged operational creditor, Kalpatru Advisory Services Private Limited as a financial creditor in the category of home buyer and against the allocation of residential and office spaces to Kalpatru Advisory Services Private Limited under the Resolution Plan.

6. As per Transaction Audit Report submitted by Transaction Audit to the Respondent No. 1, Transactions for Rs. 216,93,59,972/- are identified in the Transaction Audit Report as avoidance transactions as per the provisions of the Code.

7. Out of the avoidance transaction for Rs 216,93,59,972, the Respondent No 1 has filed application for avoidance transaction for Rs 37,97,46,222/-only. A question that arises is why the Respondent No 1 has not filed applications for avoidance transactions for Rs 178,96,13750/- and why did the Committee of Creditors allow such deliberate lapse on the part of Respondent No 1. If the Respondent No 1 is directed to file application for avoidance transactions against various parties aggregating to Rs 178,96,13750/- who have been identified by the Transaction auditor, then the recovery from such applications shall accrue to the Applicant and other creditors of the Corporate Debtor.

Reply of Respondent No. 1

8. The present application has been filed for re-classification of Respondent No. 3's debt as an operational debt instead of a financial debt and to re-consider the financial debt claims already admitted by Res