Chandigarh

StateCommission

CC/170/2018

Sh. Joginder Kumar - Complainant(s)

Versus

M/s Emaar MGF Land Limited - Opp.Party(s)

Rajiv K. Bhatia Adv.

05 Mar 2019

ORDER

This complaint has been filed against the Company, namely, EMMAR MGF Land Ltd. and its Managing Director/Director(s) under Section 17 of the Consumer Protection Act, 1986 with a prayer to refund the amount alongwith interest, compensation & litigation expenses for deficiency in providing service and indulgence into unfair trade practice.  Large number of similar cases are pending and fixed before this Commission today and on various other dates.

                Counsel for the opposite parties has brought to our notice an order passed by the National Company Law Tribunal Principal Bench, New Delhi on 24.01.2019 in C.P.No.IB-1403(PB)/2018 in the case titled as Neeraj Gupta Vs. EMMAR MGF Land Ltd., stating that these proceedings cannot continue in view of above order passed.

                We have gone through the order, as referred to above, wherein, few financial creditors filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short ‘the Code’) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (in short ‘the Rules’) with a prayer for initiation of Corporate Insolvency Resolution Process in respect of the Company, namely, EMMAR MGF Land Ltd. It was allegation of the financial creditors that they were allotted residential units in the project of the Company, namely, “EMMAR MGF Land Ltd.” and in lieu of the same, the Company continued to be in default with regard to the payment  of a sum of Rs.88,49,036/-.

                Taking note of the averments made above and after hearing Counsel for the parties, finding no substance in the arguments raised by the Company, the Tribunal was satisfied that the Company has committed a default and accordingly proceedings under Section 7 of the Code were initiated and as per provisions of Section 13 (2) of the Code, Interim Insolvency Resolution Professional was appointed and moratorium was also issued, in terms of Section 14 of the Code, imposing following prohibitions :-

“(a)     the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority;

(b)      Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein;

(c)      any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002;

(d)      the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor.”

                Thereafter, it appears that the Company, namely, EMMAR MGF Land Ltd. went in appeal bearing No.107 of 2019 against the order passed by NCLT on 24.01.2019 and on 01.02.2019, an order was passed by National Company Law Appellate Tribunal, New Delhi, relevant portion of which reads thus:-

“Until further order, the ‘Interim Resolution Professional’ will not issue any public announcement/advertisement, if not yet issued and will not constitute the Committee of Creditors without prior permission of this Appellate Tribunal. The (suspended) Board of Directors with cooperate with the ‘Interim Resolution Professional’, who will ensure that the company remains going concern. For such purpose, he will take assistance of the paid Directors, officers and employees of the Corporate Debtor. The persons who are working will perform their duties including the paid Directors and allow the ‘Interim Resolution Professional’ to function. The person who is authorized to sign the bank cheques may issue cheques only after authorization/prior permission of the ‘Interim Resolution Professional’. The bank account(s) of the ‘Corporate Debtor’ be allowed to be operated for day-to-day functioning of the company such as for payment of current bills of the suppliers, salaries and wages of the employees’/workmen, electricity bills etc.”

                 

                It was brought to our notice that thereafter, against order passed, referred to above, the complainants went before the Hon’ble Supreme Court of India by filing Civil Appeal Diary No(s).6408 of 2019 and on 26.02.2019, following order was passed by the Hon’ble Supreme Court of India:-

          “Permission to file Civil Appeal is granted.

 

          Application seeking exemption from filing certified copy of the impugned order is allowed.

 

          Issue notice.

 

          Status quo, as of today, shall be maintained in the meantime.”

 

                The matter again came up for consideration before the National Company Law Appellate Tribunal, New Delhi and on 28.02.2019, following order was passed;-

          “As we find that the Hon’ble Supreme Court has already passed order of status quo on 26^th February, 2019 against the order dated 1^st February, 2019 passed by this Appellate Tribunal, we are not inclined to pay any further order in this appeal.

 

          Learned senior counsel appearing on behalf of the Appellant submitted that the Appellant is ready to provide possession to large number of allottees or to payback the amount.

 

          At this stage, learned counsel appearing on  behalf of some of the allottees submits that the Appellant is taking advantage of the interim order passed by this Appellate Tribunal on 1^st February, 2019 and wants to pay only 6% simple interest whereas in terms of agreement they are entitled for 15% compound interest on the Principal Amount.

 

          However, as the matter is pending before the Hon’ble Supreme Court we do not express any opinion on this issue but it will be open to the Promoter to provide offer to all allottees in terms of their agreement which will be subject to decision of Hon’ble Supreme Court.

 

          Post the case ‘for orders’ on 4^th April, 2019. The parties will inform development on the next date.

 

          In the meantime, some of the allottees may file Interlocutory Application in the representative capacity on behalf of group of allottees.”

 

                In view of above, we are of the opinion that it is not possible for us to continue with this complaint.

                Accordingly, this complaint stands disposed of. However, liberty shall remain with the complainant(s) to file an application to get it revived as and when occasion so arises in future and/or the order passed by the National Company Law Tribunal Principal Bench, New Delhi is set aside and/or becomes ineffective.

                Certified copies of this order be sent to the parties, free of charge.