VISHAL CHELANI & ORS.versusDEBASHIS NANDA

                 [2023] 13 S.C.R. 1149 : 2023 INSC 913



                            CASE DETAILS

                      VISHAL CHELANI & ORS.
                                     v.
                          DEBASHIS NANDA
                     (Civil Appeal No. 3806 of 2023)
                           OCTOBER 06, 2023
       [S. RAVINDRA BHAT AND ARAVIND KUMAR, JJ.]
                             HEADNOTES
      Issue for consideration: The decision of the National Company Law
Appellate Tribunal that the home buyer as beneficiary of a decree by the
Uttar Pradesh Real Estate Regulatory Authority, the order of the Resolution
Professional proposing that they be treated differently from other home
buyers allottees, does not call for interference, is under challenge.
     Insolvency and Bankruptcy Code, 2016 – s.5(8)(f) explanation –
Financial Creditor – Home buyers allottees in real estate project who
secured the decree from the Real Estate Regulatory Authority for a
refund of their investment, if could be treated as financial creditor:
      Held: Under explanation to s.5(8)(f) home buyers and allottees of
real estate projects were included in the class of “financial creditors”,
because financial debt is owed to them – No distinction is per se made out
between different classes of financial creditors for drawing a resolution
plan – Resolution Professional’s view that once an allottee seeks remedies
under RERA, and opts for return of money in terms of the order made in
her favour, it is not open for her to be treated in the class of home buyer,
cannot be accepted – Distinction made by the Resolution Professional is
artificial and fails afoul of Art.14 – To treat a particular segment of that
class differently for the purposes of another enactment, on the ground
that one or some of them had elected to take back the deposits together
with such interest as ordered by the competent authority, would be highly
inequitable – Underlying claim of an aggrieved party is crystallized in the
form of a Court order or decree, that does not alter or disturb the status of
the allottees as financial creditors – Furthermore, s. 238 IBC contains a
                                    1149
1150         SUPREME COURT REPORTS                            [2023] 13 S.C.R.


non obstante clause which gives overriding effect to its provisions, thus, its
provisions acquire primacy, and cannot be read as subordinate to the RERA
Act – Thus, the impugned order is set aside – Home buyers are declared as
financial creditors within the meaning of s. 5(8)(f) explanation and entitled
to be treated as such along with other home buyers/financial creditors for the
purposes of the resolution plan – Real Estate (Regulation And Development)
Act, 2016 – s. 18. [Para 6, 8,9]

        LIST OF CITATIONS AND OTHER REFERENCES

      Mr. Natwar Agrawal (HUF) v. Ms. Ssakash Developers & Builders
Pvt. Ltd. in CP(IB) No.21/MB-IV/2023 dated 02.08.2023 – approved.
        OTHER CASE DETAILS INCLUDING IMPUGNED
               ORDER AND APPEARANCES

       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3806 of 2023.
    From the Judgment and Order dated 28.02.2023 of the National
Company Law Appellate Tribunal, Principal Bench, New Delhi in Company
Appeal (AT) (Insolvency) No. 991 of 2022.
       Appearances:
     Abhimanyu Bhandari, Ms. Nattasha Garg, Thakur Ankit Singh, Varun
M., Ms. Shristy Singh, Ms. Rooh-e-hina Dua, Advs. for the Appellants.
     Gunjesh Ranjan, Sidharth Sarthi, Anil Kumar, Shantanu Sagar, Prabhat
R. Raj, Advs. for the Respondent.
        JUDGMENT / ORDER OF THE SUPREME COURT
                                JUDGMENT
       S. RAVINDRA BHAT, J.
    1. The appellants challenge a decision of the National Company Law
Appellate Tribunal, New Delhi1 (hereinafter referred to as “NCLAT”)
which ruled that as beneficiary of a decree by the Uttar Pradesh Real Estate
Regulatory Authority (hereinafter referred to as “UPRERA”), the order of


1   . Order dated 28.02.2023 by NCLAT, in C.A.(AT) No. 991/2022
         VISHAL CHELANI & ORS. v. DEBASHIS NANDA                         1151
                  [S. RAVINDRA BHAT, J.]

the Resolution Professional (R.P.) proposing that they be treated differently
from other home buyers allottees, does not call for interference.
      2. The brief facts are that the appellants are home buyers, who had opted
for allotment in a real estate project of the respondent company (hereinafter
referred to as “Bulland Buildtech Pvt. Ltd.” or “the respondent”. Aggrieved
by the delay in the completion of the project, the appellants approached the
UPRERA which by its orders upheld this entitlement to refund amounts
deposited by them, together with interest. In the meantime, proceedings
under the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as
“IBC”) were initiated. In the course of proceedings after due consultations
by the Committee of Creditors, a resolution plan was presented to the
adjudicating authority. In that plan, a distinction was made between home
buyers, who had opted or elected for other remedies such as i.e. applying
before the RERA and having secured orders in their favor, and those who
did not do so. Home buyers who did not approach authorities under RERA
Act were given the benefit of 50% better terms than that given to those
who approached RERA or who were decree holders. The appellants felt
aggrieved; their applications were rejected by the adjudicating authority.
Their appeals too were unsuccessful. Consequently, they have approached
this Court.
      3. Mr. Abhimanyu Bhandari learned counsel argued that having regard
to the definition of financial debt [Section 5(8)(f)] which was amended in
2018 after which home buyer allottees in real estate projects also fell within
the broad description of financial creditors, a distinction cannot be made
between one set of such home buyer allottees and another. He relies upon
a decision of the NCLT, Mumbai Bench-IV, [Mr. Natwar Agrawal (HUF)
vs. Ms. Ssakash Developers & Builders Pvt. Ltd.] in CP(IB) No.21/MB-
IV/2023 dated 02.08.2023, which inter alia held as follows:
           “3.2. Accordingly, this bench is of the considered view that
     decree would be categorized as either financial or operational debt
     depending on the nature of the underlying claim which stands
     crystallized through the arbitral or court the nature of the debt due
     under decree would depend on the nature of transaction from which the
     decretal debt has arisen. In the present case the applicant had obtained
     a decree from RERA in capacity of allottee in a Real Estate Project
1152           SUPREME COURT REPORTS                         [2023] 13 S.C.R.


       and allottee in Real Estate Project is covered under the definition of
       Financial Debt contained in under Explanation to Section 5(8)(f) of the
       Code. Accordingly, the applicant, being holder of a decree in capacity
       of allottee is a Financial Creditor.
       3.3. At this juncture, this bench considers appropriate whether an
       allottee holding a decree from RERA would fall under the class of
       Home Buyers within the category of Financial Creditor or it would
       cease to be an allottee under the class of Home Buyers, but shall
       remain a Financial Creditor, to determine whether the threshold limit
       prescribed under section proviso to section 7(1) of the Code or under
       section 4 of code would apply. This bench finds that second proviso
       to section 7(1) prescribes the threshold limit specifically in relation to
       Home Buyers Class so as to discourage multiple applications being
       filed by the allottees in a Real Estate Project. This bench feels that an
       allottee in Real Estate Project, who subsequently becomes a Decree
       Holder under RERA Act, continues to be a creditor in the class of
       Home Buyers and shall continue to be governed by the threshold limit
       prescribed under second proviso to section 7(1) of the Code.”
      4. Mr. Gunjesh Ranjan appearing for the resolution professional
resisted the appeal and contented that the appellants cannot be permitted
to secure two benefits. Having approached the UPRERA, they fell into a
different sub-class of home buyers, who were entitled to specified amounts
and, therefore, were unsecured creditors, as compared with allottees who
had not invoked RERA remedies. It is submitted that such home buyers
relinquished their rights under Section 18 of the RERA Act.
      5. Section 5 (7) & (8) defines “financial creditors” and “financial debt”
in the following terms:
       “financial creditor” means any person to whom a financial debt is owed
       and includes a person to whom such debt has been legally assigned
       or transferred to;”
       (8) Financial debt means a debt along with interest, if any, which is
       disbursed against the consideration for the time value of money and
       includes –
       (A) money borrowed against the payment of interest;
        VISHAL CHELANI & ORS. v. DEBASHIS NANDA                        1153
                 [S. RAVINDRA BHAT, J.]

     (B) any amount raised by acceptance under any acceptance credit
     facility or its de-materialised equivalent;
     (c) any amount raised pursuant to any note purchase facility or the
     issue of bonds, notes, debentures, loan stock or any similar instrument;
     (d) the amount of any liability in respect of any lease or hire purchase
     contract which is deemed as a finance or capital lease under the Indian
     Accounting Standards or such other accounting standards as may be
     prescribed;
     (e) receivables sold or discounted other than any receivables sold on
     non-recourse basis; (f) any amount raised under any other transaction,
     including any forward sale or purchase agreement, having the
     commercial effect of a borrowing;[Explanation----For the purposes
     of this sub-clause,--
     (i) any amount raised from an allottee under a real estate project
     shall be deemed to be an amount having the commercial effect of a
     borrowing; and
     (ii) the expressions, allottee and real estate project shall have the
     meanings respectively assigned to them in clauses (d) and (zn) of
     section 2 of the Real Estate (Regulation and Development) Act, 2016
     (16 of 2016);]
     (g) any derivative transaction entered into in connection with
     protection against or benefit from fluctuation in any rate or price and
     for calculating the value of any derivative transaction, only the market
     value of such transaction shall be taken into account;
     (h) any counter-indemnity obligation in respect of a guarantee,
     indemnity, bond, documentary letter of credit or any other instrument
     issued by a bank or financial institution;
     (i) the amount of any liability in respect of any of the guarantee or
     indemnity for any of the items referred to in sub-clauses (a) to (h) of
     this clause;”
      The amendment of 2018 introduced an explanation below. Sub-section
8(f) to Section 5 which reads as follows:
1154           SUPREME COURT REPORTS                         [2023] 13 S.C.R.


             “(f) any amount raised under any other transaction, including
       any forward sale or purchase agreement, having the commercial effect
       of a borrowing;”
       [Explanation - For the purposes of this sub-clause,-
       (I) any amount raised from an allottee under a real estate project
       shall be deemed to be an amount having the commercial effect of a
       borrowing; and
       (ii) the expressions, “allottee” and “real estate project” shall have
       the meanings respectively assigned to them in clauses (d) and (zn) of
       section 2 of the Real Estate (Regulation and Development) Act, 2016
       (16 of 2016);]
      6. It is thus evident that with the introduction of the explanation home
buyers and allottees of real estate projects were included in the class of
“financial creditors” - because financial debt is owed to them. On a plain
reading of Section 5 (8)(f) no distinction is per se made out between different
classes of financial creditors for the purposes of drawing a resolution plan.
Consequently, the reasoning of the Mumbai Bench of NCLT “Mr. Natwar
Agrawal(HUF)” is correct in the opinion of this Court.
     7. So far as the argument of the resolution professional is concerned,
Section 18 of the RERA, Act reads as follows:
              “18. Return of amount and compensation – (1) If the promoter
       fails to complete or is unable to give possession of an apartment, plot
       or building, -
             (a) In accordance with the terms of the agreement for sale or,
       as the case may be, duly completed by the date specified therein; or
             (b) due to discontinuance of his business as a developer on
       account of suspension or revocation of the registration under this Act
       or for any other reason,
             he shall be liable on demand to the allottees, in case the allottee
       wishes to withdraw from the project, without prejudice to any other
       remedy available, to return the amount received by him in respect of
       that apartment, plot, building, as the case may be, with interest at such
         VISHAL CHELANI & ORS. v. DEBASHIS NANDA                           1155
                  [S. RAVINDRA BHAT, J.]

     rate as may be prescribed in this behalf including compensation in the
     manner as provided under this Act:
           Provided that where an allottee does not intend to withdraw from
     the project, he shall be paid, by the promoter, intererst for every month
     of delay, till the handing over of the possession, at such rate as may be
     prescribed.
           (2) The promoter shall compensate the allottees in case of any
     loss cause to him due to defective title of the land, on which the project
     is being developed or has been developed, in the manner as provided
     under this Act, and the claim for compensation under this sub-section
     shall be not barred by limitation provided under any law for the time
     being in force.
           (3) If the promoter fails to discharge any other obligations imposed
     on him under this Act or the rules or regulations made thereunder or in
     accordance with the terms and conditions of the agreement for sale, he
     shall be liable to pay such compensation to the allottees, in the manner
     as provided under this Act.”
       8. The Resolution Professional’s view appears to be that once an allottee
seeks remedies under RERA, and opts for return of money in terms of the
order made in her favour, it is not open for her to be treated in the class of
home buyer. This Court is unpersuaded by the submission. It is only home
buyers that can approach and seek remedies under RERA – no others. In such
circumstances, to treat a particular segment of that class differently for the
purposes of another enactment, on the ground that one or some of them had
elected to take back the deposits together with such interest as ordered by the
competent authority, would be highly inequitable. As held in Natwar Agarwal
(HUF)(Supra) by the Mumbai Bench of National Company Law Tribunal the
underlying claim of an aggrieved party is crystallized in the form of a Court
order or decree. That does not alter or disturb the status of the concerned party
- in the present case of allottees as financial creditors. Furthermore, Section
238 of the IBC contains a non obstante clause which gives overriding effect
to its provisions. Consequently its provisions acquire primacy, and cannot be
read as subordinate to the RERA Act. In any case, the distinction made by the
R.P. is artificial; it amounts to “hyper-classification” and falls afoul of Article
14. Such an interpretation cannot therefore, be countenanced.
1156           SUPREME COURT REPORTS                       [2023] 13 S.C.R.


      9. In view of the foregoing reasons, the impugned order is hereby set
aside; the appellants are declared as financial creditors within the meaning
of Section 5(8)(f) (Explanation) and entitled to be treated as such along with
other home buyers/financial creditors for the purposes of the resolution plan
which is awaiting final decision before the adjudicating authority.
       The appeal is allowed in the above terms.


Headnotes prepared by:                                          Appeal allowed.
Nidhi Jain