| Application No. | Company Appeal (AT) (Insolvency) No. 966 of 2021 |
| Appellant | Home Buyer/Operational Creditor Claimant |
| Respondent | Resolution Professional of Kindle Developers Private Limited |
| Subject | Determination of Insolvency Commencement Date |
| Order Date | 07.01.2022 |
Case Summary :
An appeal has been preferred by the Appellant for admitting his claim based on MOU entered during Moratorium period. The same was dismissed by the Appellant Authority stating that mere non uploading of CIRP Order cannot stop the implementation of Moratorium period and its effects.
Facts of the Case :
1. An Application under Section 7 of the IBC, 2016 was filed against ‘Kindle Developers Pvt. Ltd.’. On 09.03.2018, Application was listed for pronouncement of the order before the Adjudicating Authority and order was pronounced by the Adjudicating Authority admitting the Application under Section 7.
2. But the said order was uploaded only on 22.06.2018. The copy of order was neither sent to IRP nor to any of the parties. No one knew about the initiation of the CIRP proceedings till 22.06.2018. IRP made public announcement on 03.08.2018.
3. Appellant claimed that he is an allottee in pursuance of MOU dated 19.04.2018 and the claim of the Appellant should be verified as allottee for which Form CA was submitted and an Application was filed for admission of his claim.
4. The Hon’ble NCLT who by order dated 16.08.2021 has rejected the said Application as MOU dated 19.04.2018 was hit by Section 14 of the ‘I&B Code’ and was void and inoperative.
Observation :
1. The Hon’ble NCLAT considered that the key issue is whether the order passed by the Adjudicating Authority becomes operative from the date it is pronounced or the order become operative only when it is uploaded on the website.
- 2. The Hon’ble NCAT is of view that if the order become operative only when it is uploaded on the website, there will be
- a. too much uncertainty and vagueness.
- b. there shall be different dates.
- c. Creating dependence on knowledge of IRP and public in general which is not intent and purpose of the ‘I&B Code’.
- d. Might defy the order of admission passed by the Adjudicating Authority against its purpose and object.
- e. Declaration of Moratorium after admission of the Application cannot remain suspended and inoperative for any reason.
Judgement :
The Hon’ble NCLAT dismissed the appeal as the order become operative when it was pronounced in the Court and all legal consequences shall follow and there was no authority in the Corporate Debtor to enter a MOU with regard to its property and assets as Moratorium has kicked in.