IBC: The fate of Real estate buyers

Stuti Shreya | Amity law School | 8th November 2019

INTRODUCTION

Be it the homebuyers of Unitech or Jaypee or Amrapali or any other real estate developer the legislation & the judiciary has been unable to keep a check on the functioning of these developers. To date, all the legislations call it Consumer Act, RERA or IBC they all have been a sham to the homebuyers as nothing good has been received by them. As the new fraudulent practices of the developers are getting known to the public, new legislations & amendments are also paving their way out. In a recent judgment, the Apex court has settled the debate about the bankruptcies that have been seen across the real estate sector in the country. This is one of the landmark Judgements of the Supreme Court upholding the validity of amendment of IBC giving homebuyers the right to take legal recourse against the developers under the key three laws in it. Earlier it was seen in the case of bankruptcy proceedings initiated against the real estate companies the home buyers were actually at a loss even as they had put in their life savings into buying a flat or property. Effectively happened is that Justice Rohinton appealed the amendment that treats homebuyers as financial creditors & the bench actually said that the RERA has to be read harmoniously with the consumer protection act & IBC and in case of any conflict between these act then in that situation IBC will prevail. Which will directly benefit the homebuyers who have been left in a lurch because a project not being completed or the developer diverting of the money has an option to seek relief under the three Acts i.e RERA, Consumer Act & the IBC. This brings homebuyers at a good position in the current scenario. The Supreme Court now empowers the homebuyers to initiate bankruptcy proceedings against the developer by expanding the scope of IBC so they will be treated at par with the banks & institutional creditors besides protecting their rights.

But the real question is the homebuyers will be able to get their dreamed flat/property or not even after waiting 6-8 Years or they will get a refund for the money invested or they will remain trapped in the vicious circle of different Acts, laws & courtrooms with their life earnings on edge. With all the proceedings going on & the judiciary inclining their support upon the home buyers in order to provide them justice it would be interesting to see will judiciary take more bold steps in order to provide their right.

How has IBC ameliorated the condition of Real Estate Home Buyers?

Insolvency Bankruptcy Code (IBC) was enacted in the year 2016 to grapple with the inconsistencies in the insolvency laws in India and to bring them under one roof. However the act has been subjected to amendments year after year, the concerned amendment is the second amendment of the code which was done in the year 2018.  Under the section 5 (8) f of the IBC an explanation was inserted which states that

• “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”

This implies that real estate buyers from gaining the position of Financial Creditors have the right to participate in the meeting of the Committee of Creditors (CoC).

The question arises what made this amendment happen. The answer can be traced from the report formed by the Insolvency Law Committee which states that.

“The Insolvency Law Committee found, as a matter of fact, that delay in completion of flats/apartments has become a common phenomenon, and that amounts raised from home buyers contribute significantly to the financing of the construction of such flats/apartments. This being the case, it was important, therefore, to clarify that home buyers are treated as financial creditors so that they can trigger the Code under Section 7and have their rightful place on the Committee of Creditors when it comes to making important decisions as to the future of the building construction company, which is the execution of the real estate project in which such home buyers are ultimate to be housed”

In the matters of commercial wisdom exercised by the legislature, the legislature needs to have latitude from the Court’s interference.

Questions arising after the amendment referring to ( Pioneer Urban Land and Infrastructure Ltd and Anr vs Union of India)

• How can an advance for flat booking be called a financial debt if a flat was expected in return and not refund with interest?

The question rose by the Petitioners was that the basic purpose of borrowing is to lend the money with the intention of taking it back with interest. In the case of Real Estate Buyers that is not the case so, the reason being the buyers put their money or give their money to a developer with an intention to get a flat within a stipulated period promised by the developer. The difference in intention puts advance out from the meaning of borrowing. However, the Court had a different view to reject the argument, the term borrowing is expansive enough to include advance within its ambit. The advance given by the buyer is of a temporary purpose. The amount of advance is stated by the agreement and so is the duration to construct the project, thus specifies the temporary purpose of advance. This agreement intends to give something equivalent in return of the money so invested. Secondly, the expression “commercial effect” cannot be ignored. This implies that the transaction was done with the motive to earn a profit. If we connect the dots to the puzzle then the agreement between the developer and the buyer is done by the developer with a motive to earn profit thus can be brought under section 5(8)(f). Thereby, the sale agreement will have a commercial effect that of borrowing as in which money is paid in advance to the developer for a temporary purpose to construct a project so that a flat is delivered later.

• Isn’t the code superseding over RERA remedies to the homebuyers?

Keeping in view, Section 88[1] of RERA the court said that it is a kindred remedy. According to the court, RERA will not overbear the buyers to avail of other remedies. In the event of conflicts or inconsistencies, IBC will prevail over RERA. The reliefs to the buyers are coetaneous and they are in a position to avail the relief under Consumer Protection Act 1986, RERA 2016 along with the actuating of the Code (IBC).

• Aren’t home buyers more of an operational creditor?

It is often argued by the realtors that Homebuyers are more of an operational creditor but Justice Nirman has a different viewpoint and these are discussed as under:

1. Real estate buyer is the receiver of service: The real estate developer is actually providing the service (via supply of the real estate/apartment) to the real estate buyer in exchange for the advance received by the home buyer. If we apply the logic of an operational creditor who provides the service to an operational debtor then the developer steps into the shoes of an operational creditor. In other words benefit of service (development of real estate project) is being availed by the real estate buyer by paying the price to the real estate developer; this makes real estate developer an operational creditor and real estate buyer an operational debtor.
2. Creditor’s interest in the stake of the debtor: In the case of an operational creditor, he has no interest in the stake of the debtor. The case isn’t the same in case of a real estate buyer, he is concerned with the stake of debtor mainly because of the actualization of real estate project also on the happening of an unfavorable event there won’t be the recovery of the advance payments, interests or compensation.
3. Considering the time value of money: The goods and services availed from the operation creditor aren’t considered for the time value of money any payment made in advance are not done to manufacture any goods or service.
4. If we look into the abecedarian point of difference in between the real estate developer and the supplier of goods and services we come to know that legislature has put a light upon and included real estate developers as financial debtors, which makes it apparent that there cannot be any breach in terms of equal protection of laws.
5. How home buyers will have an equal footing with individual financial creditors?
6. The court case of Pioneer v/s Urban land and others[2] provided some perspective addressing the said issue (“How home buyers will have an equal footing with the individual financial creditor”). 
7. To mitigate the issue of unequal being treated as equals, it was suggested that home buyers or allottees could be integrated with other individual financial creditors. The creditors could be debenture holders and fixed deposit holders having certain amounts moved forward to the corporate debtor.

• Fixed deposit holders are unsecured creditors even though they play the role of financial creditors, not unlike the case of real estate allottees. Due to this, in the case of such individuals, financial contracts do not involve large amounts of money. Thus, unlike real estate holders, these kinds of creditors are more concerned about getting the amounts that are lent, recovered. So, they are not directly interested, or for that matter, much inclined in assessing the viability of the corporate debtors.
• Hence, by playing the role of and getting classified as individual financial creditors like fixed deposit holders and debenture holders, allottees show that they are within the larger class of financial creditors, making no violation of Article 14 on this score.

CONCLUSION

• How will the judgment help the buyers to combat real estate frauds?

The amendment not only protects the rights of the homebuyers but also empowers them to initiate the proceedings against the developer. The possession of the flat is available to the buyers within 36 months of signing the agreement, in case of a delay the only remedy available to the buyer was to move to consumer courts. With dozens of pending cases it took years to deliver a decision, even if the builder lost he could move to a higher court to appeal thus, it delayed justice. The proceedings in the courts are technical and are strictly governed under the laws of evidence and civil procedures.  The cost and time of the litigation caused the buyers to refrain from moving to the courts. With the builders diverting the funds into other projects thereby causing frauds to the buyers, a substantive remedy was much sought after. Including the home buyers under the definition of the financial creditor will make them potent to file an application against the corporate debtor (builder/developer) in case of a default. Under section 3(12) of the Code default is defined as:- “default means non-payment of debt when whole or any part or installment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be”.To initiate a Corporate Insolvency Resolution Process (CIRP) a default needs to be established in front of the authority. So if a builder defaults in completing the project the buyer can move to the authority to file an application of CIRP against the builder because after the amendment he has stepped into the shoes of a financial creditor. According to Abhilash Pillai, partner, Cyril Amarchand Mangaldas the judgment in the case of Pioneer infrastructure may be a landmark judgment but in the case of investor-home buyers, who have initiated IBC against the developers in order to seek an exit from their investment by looking at the current state of real estate market. 

Does the Court have to satisfy itself with an open eye towards Real Estate Buyers only?

This is not the case so, declaring a company insolvent is a giant step and the court has to incline towards both sides to deliver justice.

• The buyer has to establish default– It is often argued by the developer that delay in the completion of projects is also due to prolonged payments by the home buyer to which the court replied that there is an adequate mechanism to put a check over it and only genuine buyers can invoke the CIRP.To trigger CIRP under Section 7 of the Code the Home Buyer can move to the National company law tribunal (NCLT) with all the information submitted by the developer/promoter to the concerned authority. This acts as a proof and the promoter is bound to furnish such information under Section 4 of RERA. There has to be a prima-facie case that a default has occurred with regard to the amount due to the buyer. And it will be recovered through the CIRP process.
• Budge of stigma to the promoter/developer: In order to dismiss the application filed by the home buyer under Section 7 of IBC by the developer the Court will look into the defense of the developer. After the establishment of the prima-facie case by the buyer the burden shifts to the developer. He has to prove the contrary on the basis of the agreement and RERA rules and regulations. Contrary implies that there has been a default from the side of the home buyer and therefore is no in a position to any relief, a refund for that matter even compensation
• Section 65 to the rescue to the developers: In a recent case of TATA Chemicals Limited v/s. Raj Process Equipment’s and Systems Private Limited the tribunal (National Company Law Tribunal) dismissed the petition of Tata chemicals (the petitioner) on its endeavor to initiate the Corporate Insolvency Resolution Process against the corporate debtor under an ulterior motive. It has been observed in the course of such proceedings that applications are filed by the home buyers with malicious intent or with a voluntary intent to defraud others. If the CIRP has been invoked by the home buyer with such a malicious intent and if this intent has been established then such coercive measure adopted by the buyer will fall under the amplitude of Section 65[3] of the IBC. The Adjudicating Authority may impose a penalty upon the party which invoked the CIRP of the company, which shall not be less than one lakh Rupees but it may extend to one Crore rupees.

[1] 88. Application of other laws, not barred.—The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.

[3] Section 65: Fraudulent or malicious initiation of proceedings:

65. (1) If, any person initiates the insolvency resolution process or liquidation proceedings fraudulently or with malicious intent for any purpose other than for the resolution of insolvency, or liquidation, as the case may be, the Adjudicating Authority may impose upon such person a penalty which shall not be less than one lakh rupees, but may extend to one crore rupees.

 (2) If any person initiates voluntary liquidation proceedings with the intent to defraud any person, the Adjudicating Authority may impose upon such person a penalty which shall not be less than one lakh rupees but may extend to one crore rupees.