‘Delays arising from statutory compliance not force majeure’; NCLT admits insolvency proceeding against Raheja Developers

National Company Law Tribunal, New Delhi: In a petition filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 alleging delays in possession in “Raheja Shilas Low Rise” despite payments by a group of 43 homebuyers, a Division bench of Ramalingam Sudhakar, CJ., (President) and Avinash K. Srivastava (Technical Member), admitted the insolvency petition under Section 7 of the IBC and directed initiation of the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, M/s Raheja Developers Limited.

Brief Facts

In the instant matter, the Corporate Debtor (respondent) approached the applicants, a group of 43 homebuyers and entered into ‘agreements to sell’ with a commitment to deliver possession within 24 months and a six-month grace period for delays in the project “Raheja Shilas Low Rise” developed by Raheja Developers Limited. The project was part of a larger group housing development undertaken by the Corporate Debtor, which included phases such as “Raheja Atharva” and “Raheja Shilas High Rise.” The applicants paid over 95% of the total price, amounting to 112.9 crores. Despite this, the Corporate Debtor failed to deliver possessions, even after the extended grace period.

Parties’ Contentions

The applicants contended that the Corporate Debtor has committed a recurring default, and it satisfies the conditions under Section 7 of IBC, as both debt and default are evident. They further submitted that the non-delivery constitutes a recurring cause of action under Section 22 of the Limitation Act, 1963.

The applicants contended that the Corporate Debtor failed to obtain environmental clearance as mandated under the Environmental Impact Assessment Notification, 2006. It was also argued that the project was misrepresented in Form REP-I submitted to the Haryana Real Estate Regulatory Authority (HRERA) which came out in RTIs filed. The applicants contended that the Corporate Debtor cannot claim a defence of Force Majeure, as delays were attributable to its own actions, including but not limited to non-compliance with environmental laws.

However, the Corporate Debtor contended that the applicants do not meet the statutory threshold required for initiating insolvency proceedings, as per Section 7 of the IBC. The Corporate Debtor further contended that the claim is time-barred, as the default allegedly occurred between 2012 and 2014, hence the filing of the application in 2023 beyond the limitation period. The Corporate Debtor further argued that the force majeure clause (Clause 4.4) of the Flat-Buyer Agreements, which excuses delays in possession due to factors such as non-availability of materials, infrastructure delays, and delays in obtaining the Occupation Certificate (OC).

Moot Point

1. Whether the “Raheja Shilas Low Rise” project is an independent project or a part of a phased Group Housing Colony Project?
2. Whether the delay in handing over possession is attributable to the Corporate Debtor or falls under the force majeure clause?

3. Whether the essential elements of “debt” and “default” are established to initiate insolvency proceedings under Section 7 of the IBC?

NCLT Observations

Issue 1: Independent Project or Part of a Larger Development?

The NCLT observed that the Corporate Debtor admitted that the development was part of a phased group housing project but had obtained separate RERA registrations for individual phases, including “Raheja Shilas Low Rise.” It was noted that the documents, including a 2019 affidavit filed by the Corporate Debtor before NCLAT, indicated conflicting claims about whether the project was independent.

The NCLT observed that the Corporate Debtor in the present case has multiple projects but the project at question is a standalone project and the applicants in this project have fulfilled the threshold under IBC. The NCLT concluded that while “Raheja Shilas Low Rise” had a separate RERA registration, it formed part of the larger phased development.

Issue 2: Delay in Possession — Force Majeure?

The NCLT noted that the Corporate Debtor argued delays were due to unforeseeable circumstances, including litigation and delays in approvals such as obtaining Occupancy Certificate, However, the NCLT noted that the Corporate Debtor himself delayed Occupancy Certificate applications by several years (applied in 2017 for a project due in 2012-2014). It was noted that the procedural requirements like NOCs and compliance with statutory norms are standard obligations, not force majeure. The NCLT noted that the plea of Force Majeure cannot be applicable in the case because the hurdles are practical in nature. The NCLT found the delay attributable to the Corporate Debtor’s inaction, not external uncontrollable events.

Issue 3: Debt and Default under Section 7 of IBC

The NCLT identified a “financial debt” based on payments made by the Applicants for their units, default in delivering possession by the agreed timeline and acknowledgment of delay by the Corporate Debtor in various communications. The NCLT deemed the default on the part of the Corporate Debtor is continuing, making the Section 7 IBC application within the limitation period.

Court’s Decision

The NCLT admitted the application and held that the debt is due on the part of the Corporate Debtor and that satisfies the requirements as per the IBC for initiating CIRP against the Corporate Debtor. The NCLT appointed Interim Resolution Professional (IRP) to manage the assets of Corporate Debtor and ordered the Corporate Debtor to handover all the relevant documents in a week. The NCLT instructed the IRP to issue public notices and invite claims from creditors. The NCLT further directed the applicants to deposit ¹5,00,000 for CIRP expenses.

[Vipul Jain v. Raheja Developers Ltd., 2024 SCC OnLine NCLT 3705, Decided on 19-11-2024]

Advocates who appeared in this case:

Mr. Manu Chaturvedi and Mrs. Devika Singh Ray Chowdhary, Counsel for the Financial Creditor/Applicants

Mr. P Nagesh, Sr. Advocate with Ms. Manmeet Kaur, Ms. Suditi, Mr. Abhishek Rana and Mr. Akshay Sharma, Counsel for the Respondent/ Corporate Debtor