Introduction
Under the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “Code”), allottees (homebuyers) in a real estate project are included in the category of financial Creditors and can initiate insolvency proceedings against the Builder or Promoter. However, due to the fact that there can be thousands of homebuyers in a particular real estate project and one homebuyer initiating the insolvency proceeding can jeopardize the interest of thousands of other homebuyers, the Code puts a restriction wherein at least 100 homebuyers or 10% of total homebuyers of the project, whichever is lesser are required to file an insolvency application against the builder.
Case of Imperia Structures
Imperia Structures is a major real estate developer in Delhi/NCR. In pursuance of its business activities, it launched a project namely Imperia Byron/ Imperia Mindscape in Sector 62, Gurugram, Haryana. The Builder Imperia Structures started taking bookings for the project as early as 2011 and wooed the homebuyers with a lucrative assured returns scheme. Imperia received the building plans on 15.05.2015 and as such promised to deliver the possession of the units to the homebuyers by 15.05.2016. However, it did not keep its promise and miserably failed in the delivery of the project in the said timeline. Moreover, the builder also failed to provide assured returns to the homebuyers as promised and as such was in default to provide Rs. 36.79 crores of homebuyers promised to be paid by the builder as assured returns.
Aggrieved by the conduct of the builder, twenty-eight homebuyers initiated insolvency proceedings against this default of the builder before the Hon’ble National Company Law Tribunal (“NCLT”). The 2 Judge bench in the order dated 31.08.2023 finally admitted the petition filed by the Homebuyers and initiated Corporate Insolvency Resolution Process (CIRP) against the builder company i.e. Imperia Structures Limited. The Hon’ble NCLT has appointed Mr. Gaurav Katiyar as interim Insolvency Resolution Professional (IRP) who will take the proceedings further and assist with the process. From now Imperia Structures will not be able to take up any work in the project without approval from the IRP.
The copy of the order dated 31.08.2023 passed by NCLT can be accessed by clicking on this link.
What should other Homebuyers do now?
As per the order dated 31.08.2023 passed by Hon’ble NCLT, a moratorium is imposed on Imperia Structures as per Section 14 of the code. In layman’s terms, no person can institute a case against the Builder now and the cases already filed by other homebuyers against the builder and all the ongoing proceedings will not continue and will be stayed. Moreover, now no person can file a claim to recover its dues against Imperia Structures. All the creditors of Imperia Structures Limited including homebuyers in Imperia Mindscape and all other ongoing projects of Imperia Structures Limited have to file their claim before the IRP Mr. Gaurav Katiyar. The Public Notice calling all the creditors of Imperia Structures Limited to file their claim was uploaded on the official website of the Insolvency and Bankruptcy Board of India (IBBI) on 01.09.2023. As per the Public Notice the last date to file the claim against Imperia Structures Limited is 14.09.2023. The creditors must know in what category they fall and file the appropriate form for filling their claims accordingly.
To access the Public Notice uploaded on the official website of IBBI click on this link.
The proof of the claim is to be submitted by way of the following specified forms:
| S. No. | Form | Creditor Type |
| 1. | B | For operational creditors except workmen and employees |
| 2. | C | For financial creditors |
| 3. | CA | For financial creditors in a class (Homebuyers or Allottees) |
| 4. | D | For workmen and/or employees |
| 5. | E | For authorised representatives of workmen and employees |
| 6. | F | For creditors other than operational creditors and financial creditors |
How to file the Claim Form?
The appropriate claim form must be carefully chosen from the abovementioned categories and the same must be filed properly and be submitted with appropriate proof as mentioned in the Public Notice. The hard copy of this claim form must also be submitted to the interim resolution professional. The application of the claim shall be made to the interim insolvency resolution professional, Mr. Gaurav Katiyar. Following is the list of instructions that must be followed while following the Claim form.
- Personal Details: The buyer has to fill out his personal details such as name, address, identification number (eg. Aadhar Card no.), email id, etc. In case the unit is allotted in the name of more than one allottee, the name of all the allottees must be mentioned along with their personal details.
- Total Amount of Claim: In the total amount of claim the buyer must fill the principal amount and add interest to the principal amount as specified on the aforementioned website.
- Additional Documents: The Creditor/ Claimant must attach all the relevant proves to support the claim.
- Details of how the debt was incurred: The Creditor/ Claimant must explain in brief how the debt was incurred.
- Bank Details: The claimant has to also provide the bank details of the account in which he wants the money to be transferred. It is also advisable that in the case of joint property details of the joint account of both the buyers should be added.
- Name of Insolvency Professional: The buyers have to choose one insolvency professional of their choice from the given options of insolvency professionals mentioned in the Public Notice, to represent them in further proceedings.
- Miscellaneous: At last buyers must sign the declaration and verify that but details mentioned by them are correct and that nothing is concealed by them.
Conclusion:
The Claim form must be filled properly with proper care and attention as negligence in filing the same can lead to the rejection of the claim by the IRP. In case of any doubt, while filing the claim, advice from the appointed interim insolvency resolution professional can be taken. One must take proper legal advice before filing the claim form in order to avoid any adverse action.
If you have any more doubts regarding how to file the claim form and procedure, please send an email on shubham@manoflaw.in or office@manoflaw.in or text us on WhatsApp at 7015106891.