MUMBAI BENCH, COURT-II

CP (IB) No. 4362(MB) of 2018

Under section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of

the N.C.L.T. Rules, 2016

IN THE MATTER OF

Ashutosh Dhanuka

102, Dhanuka House, P.M. Road, Vile Parle (East), Above TJSB Bank, Mumbai-400 057.

... Applicant

V/s.

Kinjalkumar Madhubhai Chaudhary

Resolution Professional of Shamik

Enterprises Private Limited

9-B, Vardan Complex, near Vimal House, Lakhudi Circle, Navrangpura, Ahmedabad, Gujarat- 380 014. … Respondent

IN THE MATTER OF

Hindustan Candle Manufacturing Co.

Private Limited

... Financial Creditor

V/s.

Shamik Enterprises Private Limited

… Corporate Debtor

Order delivered on: - 05.04.2024.

CP (IB) 4362 of 2018 Coram:

Shri. Kuldip Kumar Kareer, Member (Judicial)

Shri. Anil Raj Chellan, Member (Technical)

Appearances (Hearing in Virtual Mode):

For the Applicant : Counsel Mr. Aman Kacheria a/w Krushila U.

For the Respondent/RP : Counsel Mr. Nausher Kohli a/w Amey Hadwale.

ORDER Per: - Coram.

1. The present Interlocutory Applicant is filed by the Applicant seeking, inter-alia, directions to the Respondent to consider and admit the claim of the Applicant of Rs. 3,75,94,904/- (Rupees Three Crores, Seventy- Five Lakhs, Ninety-Four Thousand, Nine Hundred and Four Only), out of which the principal is Rs.2,00,00,000/- (Rupees Two Crores only) along with the interest of Rs. 1,75,94,904/-.

2. Brief facts necessary for disposal of the present Application are as follows:

a. The Applicant herein was desirous of buying a residential premise in the project named “Om Prabhu Ashish” situated at Vile Parle (East), Mumbai. Hence, based on the representations and assurances made by the Corporate Debtor, the Applicant booked Flat No.1001 on the tenth floor in a building in the said CP (IB) 4362 of 2018 project for a total consideration of Rs. 2,25,00,000/- (Rupees Two Crores and Twenty-Five Lakhs Only).

b. An amount of Rs. 1,00,00,000/- (Rupees One Crore only) was paid by the Applicant to the Corporate Debtor on or around 30.07.2015 vide Cheque No. 028741 towards the booking of the said flat. Thereafter, on 15.08.2015, the Applicant made a further payment of Rs.1,00,00,000/- towards the booking of the subject flat.

c. The Corporate Debtor issued an allotment letter bearing reference no. SEPL/ALL/AL/2608151001, in favour of the Applicant on 26^th August, 2015.

d. The Corporate Debtor was admitted into Corporate Insolvency Resolution Process (‘CIRP’) u/s 7 of the Code vide Order dated February 03, 2022 passed by this Tribunal in Company Petition No. 4362/2018. The Applicant states that he was unaware of the initiation of CIRP until October, 2023.

e. Immediately upon learning that CIRP had been initiated against the Corporate Debtor, the Applicant immediately submitted Claim Form CA dated 26.10.2023, before the Resolution Professional of the Corporate Debtor. On 28^th October 2023, the Respondent addressed an email to the Applicant stating that the Applicant’s claim cannot be assessed based on the fact that the Committee of Creditors have approved a resolution plan for the Corporate Debtor and that I.A. No. 2021/2023 has been filed by the Respondent for approval of the said plan by the Adjudicating Authority u/s 31 of the Code, which is pending for hearing CP (IB) 4362 of 2018 before this Hon’ble Tribunal. f. Hence this application.

3. Submissions on behalf of the Applicant:

a. Counsel for the Applicant submits that the Applicant had no knowledge or awareness of the initiation of CIRP against the Corporate Debtor and that the claim was filed as soon as the Applicant learnt of the CIRP of the Corporate Debtor. Counsel for the Applicant further submits that the Respondent as a resolution professional ought to have been aware of the monies payable by the Applicant, as also the allotment letters issued in favour of the Applicant.

b. Counsel for the Applicant submits that the Tribunal has the powers to direct the Resolution Professional to accept and admit the claim of the Applicant since the resolution plan