Santanu Arun Nandi Vs. ITO, Waed INTL. Taxation 1(2), - Accordingly, respectfully following the decision of the Hon’ble Karnataka High Court, we direct the ld. AO to allow the interest cost of Rs.21,60,275 as cost of acquisition to the assessee. No doubt the assessee is entitled to the indexed cost of the same. Thus, this ground of appeal is allowed.

 ITAT Bangalore (2026.05.20) in Santanu Arun Nandi Vs. ITO, Waed INTL. Taxation 1(2), [ITA 1640/BANG/2025] held that;

• According to the provision of section 48 (i) of The Act The income chargeable under the head “Capital gains” shall be computed, by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the amounts, expenditure incurred wholly and exclusively in connection with such transfer

• However, there is one more phrase that such expenditure incurred should be wholly and exclusively in connection with such transfer is also required to be satisfied by the assessee.

• Ground No.9 is with respect to the claim of the assessee of one time maintenance deposit of Rs.2,29,000 which is forming part of the cost of the flat. Such cost is necessarily part of the cost of acquisition as without paying one time maintenance deposit, the assessee would not have been given possession of the property purchased.

• It is not the case of the Revenue that assessee has received one time maintenance deposit separately from the buyer. The claim of the ld. AR is that no separate consideration is received, and such maintenance deposit is attached to the acquisition of the flat. Accordingly, we allow ground No.8 of the appeal and direct the ld. AO to consider the one time deposit of Rs.2,29,000 as part of the cost of acquisition of the assessee.

• Ground No. 10 is also with respect to the deposit of electricity and water of Rs.1,71,900 which is also allowed to be considered as cost of acquisition for the similar reasons as stated in Ground No.8 of this appeal. Thus, this ground of appeal is also allowed.

• Ground No.11 is with respect to cost of Rs.21,60,275 which is interest expenditure incurred by the assessee towards loan taken from the Bank. The decision of the Hon’ble Karnataka High Court in the case of CIT v. Sri Hariram Hotels P. Ltd. (supra) squarely covers the issue in favour of the assessee. The claim of the assessee is also that he has not claimed such deduction under the head income from house property for any of the previous years.

• Accordingly, respectfully following the decision of the Hon’ble Karnataka High Court, we direct the ld. AO to allow the interest cost of Rs.21,60,275 as cost of acquisition to the assessee. No doubt the assessee is entitled to the indexed cost of the same. Thus, this ground of appeal is allowed.

Excerpts of the Order; 

This appeal is filed by SANTANU ARUN NANDI [the Assessee / Appellant] against the order passed by the ITO, WARD INTL. Taxation 1(2), Bengaluru [the ld. AO] dated 16-Jun-2023 for the Assessment Year 2020-21 wherein the total income of the assessee as per return of income of Rs.37,09,400 is assessed at Rs.76,00,744.

# 2. The issue in this appeal is with respect to the computation of long term capital gains in the hands of the assessee. Assessee has been denied the deduction of expenses from the net consideration as incurred by assessee wholly and exclusively in connection with transfer u/s 48(i) of The Act and Further the deposits of the maintenance to the society and to the Electricity board etc. Further the assessee has acquired the property transferred by securing loan on interest, for which assessee has not claimed any deduction under the income from house property and therefore it is eligible to consider the cost of acquisition and deduction at indexed value needs to be granted to the assessee. 

# 3. Meanwhile, it was found that the appeal filed by the assessee against the final assessment order is late by 737 days. The assessee has filed a petition for condonation of delay in filing of the appeal before the Tribunal.

# 4. The facts show that the draft assessment order was passed on 19.9.2022. The assessee filed his objections before the Dispute Resolution Panel [ld. DRP] on 18.10.2022. The ld. DRP dismissed the objections of the assessee vide direction dated 29.5.2023 and consequent to that on 16.6.2023 the final assessment order was passed. The assessee under a mistaken belief instead of filing the appeal before the ITAT preferred appeal before the ld. CIT(A) within 30 days of the assessment order. The ld. CIT(A) vide appellate order dated 11.7.2025 dismissed the appeal of the assessee on the ground that since the Directions have been issued by the ld. DRP, the CIT(A) does not have any jurisdiction. The assessee thereafter contacted the Advisor, who filed the appeal before the ld. CIT(A), admitting the error and filed the appeal before the Tribunal on 23.7.2025 i.e., immediately after the order of the ld. CIT(A) and this caused the delay of 737 days in filing the appeal before the Tribunal.

# 5. In the petition for condonation of delay as well as in the Affidavit, the assessee explained that the reason for delay in filing this appeal is for sufficient cause.

# 6. The ld. DR vehemently submitted that the delay is not because of sufficient cause and therefore it should not be admitted.

# 7. We have carefully considered the rival contentions and perused the orders of the ld. lower authorities. The assessee is a Non-Resident Indian. He has sold a property and admitted total income of Rs.16,70,250 by filing a revised return of income on 17.2.2022. The return was picked up for scrutiny and consequently a show cause notice was issued to the assessee on 24.3.2022 giving 4 days notice. Based on this on 19.9.2022 the draft assessment order was passed against which objections were raised on 18.10.2022 wherein the DRP summarily rejected the objections of the assessee on 29.5.2023 resulting in a final assessment order on 16.6.2023. As the assessee was not aware about the income tax proceedings, he approached the ld. CIT(A) by filing an appeal on 14.7.2023. On 11.7.2025, the appeal of the assessee was dismissed by the ld. CIT(A). Therefore the appeal of the assessee from 14.7.2023 till 11.7.2025 almost for 700 days remained filed before the CIT(A). The CIT(A) rejected the appeal of the assessee for the obvious reason that appeal does not lie before him, when the DRP has issued direction. Immediately on that date within 10 days, the assessee filed an appeal before the Tribunal. Pursuing an alternative remedy under a mistaken belief by a Nonresident assessee is a sufficient cause in n filing the delay in appeal, hence the delay in filing of the appeal of 737 days is condoned and the appeal is admitted.

# 8. The brief facts show that assessee has sold a house property for Rs.2,63,00,000 as per Sale Deed dated 6.1.2020. The assessee has computed long term capital gains of Rs.16,33,022 after claiming indexed cost of acquisition of Rs.2,30,15,679. The computation of capital gain shown by the assessee is that out of sale consideration, a brokerage amount of Rs.4,50,000 and expenses towards the travel of Rs.12,01,299 were reduced from the sale consideration resulting into net sale consideration of Rs.2,46,48,701. The assessee claimed indexed cost of acquisition of Rs.1,64,33,923, indexed cost of improvement of Rs.28,43,316 and also claimed deduction of interest aid on loan of Rs.37,38,440. Thus Rs.2,30,15,679 was considered as cost of acquisition and improvement from the net sale consideration of Rs.2,46,48,701 and offered long term capital gain of Rs.16,33,022.

# 9. The ld. AO asked for the details of expenses towards travel of Rs.12,01,299 and found that maintenance deposit paid by the assessee and other deposits of electricity etc. paid of Rs.5,66,144 and Rs.4,24,608 were considered as cost of acquisition and indexed and claimed deduction. The ld. AO also found that assessee has paid interest on housing loan of Rs.37,38,440 and claimed as deduction. With respect to expenditure, the expenses incurred in foreign travel of Rs.12,01,299 were claimed as expenses for travel. The AO did not allow the same and further did not consider the interest expenses as cost of acquisitions etc. The AO allowed the brokerage expenditure from sale consideration of Rs.4,50,000 and computed the net sale consideration of Rs.2,58,50,000. From that deduction and indexed cost of acquisition of Rs.1,64,3,923 along with the indexed cost of furniture & fixture of Rs.18,52,564 and thereby computed the net capital gain of Rs.75,63,513.

# 10. Before the ld. DRP, the claim of the assessee was as under:-

• (1) To grant deduction of expenses towards transfer of capital assets of Rs.12,01,900 which were incurred by the assessee for coming to India such as air ticket, Hotel stay, etc. and claimed that same is considered as expenditure incurred in relation to the transfer of a capital asset in view of the decision of the Hon’ble Karnataka High Court in the case of Mrs. June Perrett v. ITO.

• (2) The assessee further stated Rs.2,29,200 being maintenance deposit paid by the assessee to the builder which is also part of the cost of acquisition of the property it should be indexed and assessee must be granted deduction of Rs.5,66,144.

• (3) The assessee has deposited Rs.1,71,900 which has an indexed cost of Rs.4,24,608 which was electricity and water deposit should also be considered as cost of acquisition or improvement of the property.

• (4) The assessee has paid interest of Rs.21,60,275 for the purchase of the property and same should also be indexed of Rs.37,38,450 and should be granted to the assessee as a deduction.

# 11. The ld. DRP considered the above objections of the assessee at Objection 3, obtained a remand report of the ld. AO on the additional evidences submitted by the assessee. The remand report was also forwarded to the assessee vide email and assessee was heard. Therefore the ld. DRP passed the directions.

# 12. With respect to the expense of transfer of capital asset, the ld. DRP held that assessee stayed for 17 days in India in different places such as Kolkata, Trivandrum & Bangalore. Therefore such expense cannot be considered to be wholly and exclusively incurred for sale of property. Further with respect to transfer deposits such as maintenance, electricity and water deposits, were also not considered as exclusively for the sale. With respect to interest on house property, it was stated that the assessee failed to substantiate that interest has not been claimed by him in earlier years and therefore the objections of the assessee were rejected. The final assessment order was passed on the similar line.

# 13. The ld. AR, Mr. P.R. Suresh, CA, was heard. A detailed paperbook containing 330 pages was filed. The assessee submitted the detailed of stay expenses, travel tickets, professional fees, housing loan certificates and evidences of his earlier returns where such interest expenditure was not claimed in the return of income. The summary of income tax returns was also filed from AY 2007-08 to 2020-21 to show that assessee has not claimed interest on housing loan as deduction u/s. 24(b) of the Act. With respect to the expenses in relation to transfer of the property, the assessee also submitted that he has paid Rs.1,50,000 to Povas Financial Consultants which is placed at page 321 of PB for the purpose of professional charges for rendering services in relation to sale of property, drafting of sale deed and advise towards tax matters. Thus the claim of the assessee for the expenditure of travel and consultancy fee was claimed as expenditure in connection with the transfer of property.

# 14. The assessee relied on the decision of Hon’ble Karnataka High Court in ITA No.58/2009 in the case of Hariram Hotels Pvt. Ltd. dated 01.12.2019 wherein the Hon’ble Court was dealing with deduction of interest paid to the Director of a company for purchase of property where the interest expenditure was allowed while calculating cost of acquisition of the asset. He further relied on the decision of the Coordinate Bench in ITA No.120/JP/2019 dated 28.2.2020 wherein the interest paid on loan to LIC Housing where the interest paid is allowed as part of the cost of the assets while computing the capital gain.

# 15. The ld. AR further relied upon the decision of the Coordinate Bench in the case of Adil Rehman in ITA No.15/Hyd/2024 dated 19.3.2024 wherein the Coordinate Bench has allowed the claim of the assessee of travel expenses, hotel accommodation, etc., where the non-resident assessee from USA was allowed the deduction of travelling expenses while computing the capital gain relying on the decision of Hon’ble Bombay High Court in the case of Shakuntala Kantilal, 190 ITR 56. Therefore his claim was that this issue is also covered in favour of the assessee.

# 16. The ld. DR vehemently referred to the provisions of section 48 of the Act and submitted that only those expenditure which are incurred wholly and exclusively in connection with such transfer are required to be reduced from the full value of consideration u/s. 48(1) of the Act. It was submitted that the travel expenditure incurred are not incurred wholly and exclusively in connection with such transfer. It was stated that the ld. DRP has also considered this issue. He submitted that assessee has stayed in India for 17 days which are far from excessive than what is required for the purpose of transfer. With respect to the interest expenditure, he referred to the provisions of section 55 and submitted that according to section 55(1)(b)(2)(ii) expenses which are incurred and are deductible as income from house property cannot be considered as cost of any improvement. He further referred to section 55(2) regarding cost of acquisition stating that according to sub-clause (b) the amount of deposit cannot be considered as cost of acquisition of the property. He heavily relied upon the orders of ld. lower authorities. It was further stated that before the ld. DRP despite assessee being given enough opportunity, he did not submit any rejoinder to the remand report as stated in para 4.2 of the order.

# 17. We have carefully considered the rival contentions and perused the orders of the ld. lower authorities and also considered the various judicial precedents relied up on by the ld. AR.

# 18. According to the provision of section 48 (i) of The Act The income chargeable under the head “Capital gains” shall be computed, by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the amounts, expenditure incurred wholly and exclusively in connection with such transfer .

# 19. The facts in this case show that assessee is a non-resident who has sold a property in India and offered capital gain thereon. However, while computing capital gain assessee has claimed the expenses towards transfer of Rs.12,01,299 which is explained for travel from US to India and Boarding expenses incurred by him amounting to Rs.12,01,299 stating that such travel expenses has to be allowed as deduction to the assessee from the sale consideration in terms of provisions of section 48 (1) of the Act wherein the expenditure incurred wholly and exclusively in connection with such transfer is allowed as a deduction. The assessee has relied upon several judicial precedents including the decision of Hon’ble Karnataka High Court wherein the Hon’ble High Court has allowed the expenses relating to sale of property including legal & professional fees. For this proposition the assessee has also relied on the decision of the Coordinate Bench in the case of Adil Rehman (supra). The facts of that case show that assessee has claimed travel expenses of Rs.2,81,425 which included expenses towards obtaining of journey air tickets, hotel accommodation, postal charges, lawyer fees, etc. The Coordinate Bench has held that these are specifically needed to execute a sale. The Coordinate Bench also relied upon the decision of Hon’ble Bombay High Court in the case of Shakuntala Kantilal, 190 ITR 56. In this case, we find that the ld. DRP in para 4.3.1 has held that assessee has submitted air travel bills and bills for hotel stay for 2 to 3 people. The assessee has travelled and stayed in hotel in different places such as Kolkata, Trivandrum and Bangalore during his 17 days stay in India and therefore the ld. DRP held that expenses are not incurred wholly and exclusively in connection with such transfer and therefore the same was disallowed. The ld. DRP also did not consider the decision of the Coordinate Bench.

# 20. We find that assessee had produced travel tickets from US to India from Chicago to Frankfurt and Frankfurt to Bangalore from 5.11.2019 to 6.11.2019. He has also showed the business class ticket of Bangalore to Chicago on 21.11.2019. Thus, his travel tickets are showing that he entered in India on 04.11.2019 and reached Chicago on 21.11.2019. Further he has produced some air tickets for travelling on 2.1.2020 and 19.1.2020 from Chicago – Delhi, Kolkata – Delhi and Delhi – Chicago. This includes the travel expenditure of Mr. Pranjal Nandi over and above the assessee. The assessee has further incurred the expenditure of Rs.1,50,000 to Povas Financial Consultancy, Bangalore for professional fees towards property sale. He has further shown the stay expenses at Bangalore from 5/1 to 8/1 being hotel bill wherein the assessee has incurred expenditure of Rs.93,125. The assessee has included the Sale Deed which is placed at pages 112 to 125 of the PB. It shows that this Sale Deed was executed on 6.1.2020 by Mr. Santanu Nandi and Mrs. Ela Nandi, wife of the assessee. Thus, the transfer of the property took place on 6.1.2020 and if that be the case, the assessee is not entitled to claim deduction of the expenditure of travel etc. incurred by him in Nov. 2019 as these were not ‘in connection with’ such transfer when sale deed was executed on 6.1.2020.. However, the travel expenditure so far air expenditure is concerned which relates to Mr. Santanu Nandi has been incurred by the assessee in connection with such transfer when he arrived in India for registering sale deed. However, there is one more phrase that such expenditure incurred should be wholly and exclusively in connection with such transfer is also required to be satisfied by the assessee. There is no need for elaboration of this phrase. Further it is also part of the provisions of section 37(1) of the Act which allows deduction of expenses while computing business income. Identical phares is employed for granting deduction of expenses while computing capital gains.

# 21. On careful consideration of the decision relied on by the assessee, there is no discussion on whether such expenses incurred by the assessee in case of Adil Rehman (supra) were wholly and exclusively in connection with such transfer. Therefore, reliance on that decision does not help the case of the assessee. 

# 22. Further onus lies on the assessee, it is for the assessee to substantiate before the lower authorities that the total expenditure incurred by him is wholly and exclusively in connection with such transfer. The connection should be proximate to the transfer. Here the Sale Deed is executed on 6.1.2020, but the ld. DRP has stated that assessee has stayed for 17 days in India and claimed such expenditure. 

# 23. Thus, we restore this issue back to the file of the ld. AO. The assessee is directed to substantiate before the ld. AO of these expenses are falling into the above clause. Accordingly, the ld. AO is directed to examine the details produced by the assessee and verify whether such expenditure is incurred wholly and exclusively in connection with such transfer and decide the issue afresh. Ground No.8 is allowed to that extent.

# 24. Ground No.9 is with respect to the claim of the assessee of one time maintenance deposit of Rs.2,29,000 which is forming part of the cost of the flat. Such cost is necessarily part of the cost of acquisition as without paying one time maintenance deposit, the assessee would not have been given possession of the property purchased. It is not the case of the Revenue that assessee has received one time maintenance deposit separately from the buyer. The claim of the ld. AR is that no separate consideration is received, and such maintenance deposit is attached to the acquisition of the flat. Accordingly, we allow ground No.8 of the appeal and direct the ld. AO to consider the one time deposit of Rs.2,29,000 as part of the cost of acquisition of the assessee. 

# 25. Ground No. 10 is also with respect to the deposit of electricity and water of Rs.1,71,900 which is also allowed to be considered as cost of acquisition for the similar reasons as stated in Ground No.8 of this appeal. Thus, this ground of appeal is also allowed.

# 26. Ground No.11 is with respect to cost of Rs.21,60,275 which is interest expenditure incurred by the assessee towards loan taken from the Bank. The decision of the Hon’ble Karnataka High Court in the case of CIT v. Sri Hariram Hotels P. Ltd. (supra) squarely covers the issue in favour of the assessee. The claim of the assessee is also that he has not claimed such deduction under the head income from house property for any of the previous years. For the same the assessee has produced the income tax returns already filed by the assessee for so many years. Therefore, the claim of the assessee of deduction of interest has cost of acquisition is not hit by the provisions of section 55(1)(b)(2). Accordingly, respectfully following the decision of the Hon’ble Karnataka High Court, we direct the ld. AO to allow the interest cost of Rs.21,60,275 as cost of acquisition to the assessee. No doubt the assessee is entitled to the indexed cost of the same. Thus, this ground of appeal is allowed. 

27. All other grounds of appeal are not pressed before us and therefore the same are dismissed.

28. In the result, appeal filed by the Assessee is PARTLY ALLOWED. Order pronounced in the open court on 20th May, 2026.

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Rajkumar Jhawar and Anr. Vs. Arun Kapoor, RP for Monarch Brookfields LLP and Ors. - However, we are of the view that the claim of those homebuyers, who could not file their claims, but whose claims were reflected in the record of the corporate debtor, ought to have been included in the information memorandum and resolution applicant, ought to have been taken note of the said liabilities and should have appropriately dealt with them in the resolution plan.

 NCLAT (2026.06.30) in Rajkumar Jhawar and Anr. Vs. Arun Kapoor, RP for Monarch Brookfields LLP and Ors. [(2026) ibclaw.in 792 NCLAT, Company Appeal (AT) (Ins.) No. 13 of 2025] held that;

• Pioneer Urban (supra), in para 56, defines a speculative investor as one who intends to evade possession and “jump ship”, or one who is not genuinely interested in purchasing a flat / apartment. Any allottee, who, from the inception of the agreement, does not intend to take possession, or who later abandons such intent, falls within this category. Such an allottee is primarily concerned with refund or profit, and not with completion of the project.

• Thus, the determination of whether an allottee is a speculative investor, must be holistic, having regard to the terms of the agreement, the allotment letter, the payment terms, and the overall conduct of the allottee.”

• An important point to be noted here is that in a real estate insolvency involving homebuyers, the status of housing every unit is the key decision point as to whether the unit is already sold by CD. If already sold, then is it is fully paid up; or partly paid up. The other category would be unsold units. Based on this information a PRA would prepare his resolution plan.

•  We have also noted from the records that IRP/RP did not send any communication to the Appellants regarding the initiation of CIRP. Inspite of our clear directions to produce any evidence of communication to the appellant through any means, the RP failed to produce any document on records of CD. In such circumstances, delay cannot be attributed solely to the Appellants, when the RP failed in his duty to identify and notify stakeholders.

• The Adjudicating Authority approved the Resolution Plan while the Appellants’ application was pending. This resulted in denial of an opportunity to adjudicate their rights before finalisation of the plan. Such action has caused serious prejudice and undermines principles of natural justice. However, we also note that entire facts of the case were not brought before the Ld. Adjudicating Authority. It is only in the present proceedings the facts about registered agreement to sale, and payment by the Appellants could be brought on record after we insisted upon the RP to file a comprehensive affidavit.

• However, we are of the view that the claim of those homebuyers, who could not file their claims, but whose claims were reflected in the record of the corporate debtor, ought to have been included in the information memorandum and resolution applicant, ought to have been taken note of the said liabilities and should have appropriately dealt with them in the resolution plan. Non-consideration of such claims, which are reflected from the record, leads to inequitable and unfair resolution as is seen in the present case.

Excerpts of the Order; 

# 1. This appeal has been filed by Mr. Raj Kumar Jhawar and Mrs. Shobha Jhawar (hereinafter referred to as ‘Appellants’). The Appellants who are the Flat buyers of Monarch Brookfields LLP (Corporate Debtor), are aggrieved by the order dated 21.11.2024 passed by the Ld. National Company Law Tribunal, Mumbai Bench-II (Adjudicating Authority), in I.A. No. 3390/2024, in C.P.(IB) No. 2517/MB/2018 whereby the Adjudicating Authority dismissed the application of the Appellant for excluding the Flat No. 1002 on the 10th Floor in “Vermont” Wing of project of the Corporate Debtor, which was purchased by them, from the resolution process of the Corporate Debtor.

# 2. The Appellants asserts that Mr. Arun Kapoor Resolution Professional/Respondent No. 1 had failed to consider that the Appellant had submitted all the documents through email to the RP on 11.06.2024 and RP vide email dated 12.06.2024 informed the Appellants that the claim cannot be accepted as being submitted at a belated stage and since the resolution plan has already been approved by the CoC and reserved for orders by the Tribunal. The Appellants assert that the records of the Corporate Debtor also reflect that they had a valid Builder-Buyer- Agreement for the aforesaid flat and they had paid the full consideration amount to the builder but the same was not taken into consideration by the RP or the Adjudicating Authority. Aggrieved by the impugned order the Appellants have filed this appeal.

Brief facts of the case

# 3. The brief facts of the case are as given below:

i. The Appellants approached the Corporate Debtor expressing their interest in purchasing a flat bearing Unit No. 1002 measuring 70.32 Sq. Mtrs, On the 10th Floor in “Vermont” wing in the project namely “Monarch Brookefields” situated at Plot no. 3, Sector-20, Kalamboli, Navi Mumbai developed by the Corporate Debtor.

ii. The Corporate Debtor on 23.04.2012 entered into a Registered Agreement for Sale bearing Registration no. 4264/2012 for a total sale consideration of Rs. 42,00,000/- (Rupees Forty-Two Lakhs Only) which was fully paid by the Appellants prior to the execution of the said agreement through online transaction made from his HDFC Bank account to the Corporate Debtor’s IDBI account, which is evident from the certificate dated 24.09.2024 issued by the HDFC bank, confirming the payments made by the Appellants to the Corporate Debtor. That pursuant to making the entire payment of sale consideration in compliance with the terms of the said agreement, the Appellants obtained the ownership rights over the said flat.

iii. That as per Clause 16.1 of the Agreement for Sale, the Corporate Debtor was duty bound to hand over the possession of the said Flat to the Appellants, being the owners of the said Flat, within a period of 36 months (3 years) + grace period of 90 days. However, the Corporate Debtor failed to hand over possession of the said to the Appellants within the stipulated period.

iv. That in the intervening period, an Application U/s 7 of the Code was filed by Capri Global Capital Ltd. against the Corporate Debtor and pursuant to which the Hon’ble NCLT vide order dated 27.09.2019 initiated Corporate Insolvency Resolution Process (“CIRP”) against the Corporate Debtor and appointed Shri S. Gopalakrishnan as Interim Resolution Professional. Mr. Arun Kapoor/Respondent No.1 was later appointed as the Resolution Professional (RP) on 03.08.2021.

v. The Appellants at a later stage came to know that Respondent No.2/Resolution Applicant had submitted a Resolution Plan, which was approved by CoC and an application filed for approval of the Resolution Plan was reserved for orders on 16.05.2024.

vi. Thereafter, the Appellants submitted their claim, though belatedly via email on 11.06.2024 to the tune of Rs.42,00,000/- along with interest w.e.f. 02.02.2015 till the date of payment at the rate of 24% to the Respondent No.1. However, the Respondent No.1 vide email dated 12.06.2024 informed the Appellants that the claim cannot be accepted as being submitted at a belated stage, since the resolution plan has already been approved by the CoC and reserved for orders by the Tribunal. The Resolution Plan was later approved by the Ld. Adjudicating Authority on 27.08.2024.

vii. Thereafter, the Appellants file an interlocutory Application bearing IA No. 3390/2024 before the Hon’ble NCLT, Mumbai Bench in June 2024 seeking directions to be passed to the Respondents to jointly, severally or individually exclude the Flat No. 1002 on the 10th Floor in “Vermont” from the aforesaid project of the Corporate Debtor from the resolution process. The said Application filed by the Appellants was dismissed by the Hon’ble NCLT vide Order dated 21.11.2024 on the ground that no person can be held entitled to initiate or continue any proceedings in respect to a claim which is not part of the resolution plan.

viii. M/s Planet Builder and Developers who are the Successful Resolution Applicants are arrayed as the Respondent No.2. The Committee of Creditors of Monarch Brookfields LLP has been arrayed as Respondent no.3 in this appeal.

Analysis and findings

# 38. We have heard both the parties in detail, gone through the voluminous records of the case and also seen the written submissions of Appellants as well as Respondents.

# 39. The Appellants contended that they had booked Flat No. 1002 in the project “Monarch Brookefields” promoted by the Corporate Debtor vide registered Agreement to Sale dated 23.04.2012 for Rs. 42,00,000/- and consequently became owners of the said flat, which was taken during CIRP proceedings. They submitted that CIRP was initiated pursuant to an application under Section 7 of the Code filed by Capri Global Capital Ltd., and that they filed their claim on 11.06.2024 before approval of the Resolution Plan. The delay in filing the claim was due to the fact that the CIRP of CD was conducted during the Covid period and due to ill health and old age they could not go out and were unaware of CIRP. They did not get any information about CIRP from any source. The Appellants contended that they fall within Category A of the Resolution Plan and that the RP acted arbitrarily and discriminatorily in ignoring their rights while including Mr. Kriplani’s claim, who is merely an investor with unregistered allotment letters and a buy-back/assured return scheme. They further contended that the RP introduced the case of Mr. Kriplani for the first time before this Tribunal without placing it before the Adjudicating Authority, and that there are material contradictions in the RP’s stand regarding the Appellants’ payments, demonstrating inefficiency and negligence.

# 40. Per contra, Respondent No. 1/RP contended that the Appellants have no ownership rights in the subject unit as no conveyance deed was executed and possession was never handed over, and their claim did not form part of the approved Resolution Plan. It was further contended that the Appellants’ claim was hopelessly belated and could not be entertained after approval of the Resolution Plan by the CoC, with the Adjudicating Authority having already reserved the matter for final order. The RP justified inclusion of Mr. Kriplani’s claim on the basis of allotment letters, banking trail, and timely filing of Form CA in 2019, supported by ICICI bank statements evidencing payment to the Corporate Debtor. The RP also raised discrepancies in the Appellants’ documents, including inconsistencies between payments and the Agreement to Sell, unexplained excess payments, and timing of loan sanction, thereby casting doubt on the genuineness of the Appellants’ claim and their status as homebuyers.

# 41. It is necessary to reiterate the critical dates and events necessary for adjudication of the present dispute. The Corporate Debtor was admitted in CIRP by the order of Ld. Adjudicating Authority dated 22.09.2019. Initially Shri S. Gopalakrishnan was appointed as IRP and later on he was substituted by Mr. Arun Kapoor who is the Respondent No.1. The Appellants had filed their claim through email on 11.06.2024 to the tune of Rs.42,00,000/- which was rejected by the RP vide email dated 12.06.2024 on grounds of delay in filing claim. Aggrieved from the same Appellants filed an interlocutory Application bearing I.A. No. 3390/2024 before the Ld. Adjudicating Authority on 15.06.2024. However, during the pendency of this I.A., Ld. Adjudicating Authority had approved the Resolution Plan submitted by RP on 27.08.2024 without disposing the I.A. filed by the Appellants. Subsequently IA 3390/2024 was dismissed by the Ld. Adjudicating Authority vide Order dated 21.11.2024 on the ground that no person can be held entitled to initiate or continue any proceedings in respect to a claim which is not part of the resolution plan.

# 42. RP in his pleadings before the NCLT had stated that he is unable to trace any record evidencing receipt of the sale consideration under the Agreement to Sell in the account of the Corporate Debtor. The relevant extract of para-17 of the Impugned Order dated 21.11.2024, which records the submissions of the RP w.r.t the payments made by the Appellants is reproduced below: –

• “…17. On the other hand, Respondent No. 1 contents that he has been unable to locate any record demonstrating the payment of sale consideration under the Agreement for sale into any account of the Corporate Debtor and there are apparent inconsistencies in the bank statements produced by the Applicants and the amounts stated in the Agreement for sale. Respondent No.1 also doubted whether the Corporate Debtor had maintained any bank account with HDFC Bank to which the Applicants are stated to have transferred the funds. Respondent No. 1 further submits that the Applicants submitted their claim on 11.06.2024 long after the date specified for submission of claims against the Corporate Debtor. By the time the Applicants submitted the claim, the Resolution Plan submitted by the Respondent No. 2 had already been voted upon by the CoC and the Application seeking approval of the Resolution Plan was heard by the Tribunal and reserved for orders. Since the claim was rejected by Respondent No. 1 on account of undue delay, the Applicants have preferred the present application on the ground that said Flat does not form part of the assets of the Corporate Debtor and sought exclusion of the said Flat from the CIRP and Resolution Plan. The counsel for Respondent No. 1 further submitted that the Resolution Plan, which was reserved for approval before this Tribunal, was eventually approved on 27.08.2024. In the circumstances, the application filed by the applicants is liable to be dismissed.” (Emphasis supplied)

# 43. This submission of RP that no such payments were made by the Appellant weighed heavily in the mind of the Ld. Adjudicating Authority. It was on the basis of the same that claim of the Appellant was dismissed by the Adjudicating Authority.

# 44. During the hearing before this Tribunal on 12.08.2025 we directed RP to file an affidavit giving comprehensive details of payment received from the appellant, the extract of the order is given below:

• “4. Without getting into the merit of the preliminary submissions of the counsels for the RP, this Tribunal only requires the RP to file an affidavit as to what exactly he had done viz-a-viz a sale agreement dated 23.04.2012. He requires to get into the factual details which the appellant relies on such as bank remittance made by the appellant into the IDFC account of the CD from the HDFC account of the appellant as evidenced by bank statements available at Page No. 122 of the appeal. RP while submitting his affidavit, his attention is not limited to what the appellant has provided but he can go beyond.”

# 45. Pursuant to the same, the RP has filed an Affidavit dated 29.08.2025 The relevant paras 2,3 & 5 of the Affidavit are extracted below:

• …2. I say that the erstwhile IRP, Mr. S. Gopalakrishnan had created a data room on the basis of information in his possession. From a perusal of the said data room it is reflected that the IRP was aware of the agreement to sell executed in favour of Mr. Raj Kumar Jhawar. A copy of the extract of the said data room is attached herewith as ANNEXURE – A…

• ….3. a. ATS dated 23.04.2012 records at para 1.4 that Rs. 6,75,625 had been paid as on the date of the agreement and the balance Rs. 35,24,375 was yet to be paid.

• ….c. I say that the Appellant has also filed certain receipts along with the present appeal which are at page 123-127 of the appeal. As per the said receipts the following amounts were paid:

• 
  

S.No.	Receipt No. & Date	Particulars	Amount
1.	Receipt No. 182 dated 03.05.2012	RTGS dated 13.04.2012	Rs.6,75,625/-
2.	Receipt No. 359 dated 04.01.2014	Cheque no.445599 dated 06.08.2012 drawn on SBI Vashi	Rs.20,96,375/-
3.	Receipt No. 360 dated 04.01.2014	Cheque/DD no. 716329 dated 12.04.2012 drawn on HDFC Vashi	Rs.5,00,000/-
4.	Receipt No. 361 dated 04.01.2014	RTGS dated 13.04.2012	Rs.3,00,000/-
5.	Receipt No. 362 dated 04.01.2014	RTGS dated 13.04.2012	Rs.30,00,000/-
Total			Rs.65,72,000/-

• ….d. I say that the cumulative total of all these receipts come out to Rs. 65,72,000/- (Rupees Sixty-Five Lacs Seventy-two Thousand Only) whereas the total claim of the Appellant is for Rs. 42,00,000/- (Rupees Forty-Two Lacs Only). The contradiction shows that the Appellant is trying to create the illusion of payment of money to the CD whereas from the documents it is not reflected that the said amount of money has been paid for the purchase of a flat from the CD. It seems that the amount has been paid for some extraneous reasons to the CD and the agreement for sale is merely an eyewash to siphon off the money from the CD…

• …5. I say that the IRP had shared specific information with all such persons whose names and payments information were reflected in the books of accounts of the CD. The same is evident from the WhatsApp communications between Chandra Tahiliani, one of the alleged Homebuyers, and the IRP wherein the IRP had sought specific information from her regarding one flat. Similarly, a letter dated 23.06.2020 was sent to Mr. Jai Kumar Rai, one of the homebuyers, similar communications to all the other persons, including the Appellant herein, whose names and payments information were duly reflected in the books of accounts of the CD. However, since the Deponent herein was appointed as the substituted RP on 03.08.2021 and since it is not mandatory, under the applicable regulations, to keep the record of such communications, it has now become practically impossible for the Deponent to trace all such communications. The two specific communications mentioned hereinabove were also taken from the two separate appeals filed by those homebuyers, i.e., Ms. Chandra Tahiliani v. Planet Builders & Developers & Anr. (Comp. App. (AT) (Ins) No. 314 of 2025) and Jai Kumar Rai & Anr. v. Arun Kapoor (Comp. App. (AT) (Ins) No. 1179 of 2024 & I.A. No. 4211 of 2024). The copy of the WhatsApp communications between Chandra Tahiliani and IRP and the letter dated 23.06.2020 sent to Mr. Jai Kumar Rai are annexed herewith as ANNEXURE – B…”

# 46. We observe from the Affidavit of RP dated 29.08.2025, that there exists a material contradiction in the stand taken by Respondent No. 1/the Resolution Professional before the Ld. Adjudicating Authority and before this Appellate Tribunal in relation to the payments made by the Appellants. Before this Appellate Tribunal, the RP has alleged a discrepancy in the payments made by the Appellants, but in contrast, before the Ld. Adjudicating Authority the RP categorically contended that he was unable to trace any record evidencing receipt of the sale consideration under the Agreement to Sell in the account of the Corporate Debtor. These are two entirely inconsistent positions and demonstrate clear inefficiency and negligence on the part of the Resolution Professional. Further, RP had stated that communications were sent to all homebuyers but he could not produce a single document showing any communication to Appellants.

# 47. In his affidavit the RP has also furnished the extract of Virtual Data Room (VDR) record relating to flat No. 1002 in Vermont Wing of the project. The relevant portion of the data room is extracted below: –

Wing Name	Unit No.	Date of Registration	Registration Number	Name of the Flat Owner
Vermont	1002	23.04.2012	4264	Rajkumar Anandaram Jhawar & Shobha Jhawar

# 48. From the virtual data room records, we note that Unit No. 1002 Vermont was registered in the name of Rajkumar Anandaram Jhawar & Shobha Jhawar, the Appellants herein and the said agreement to sale was registered on 23.04.2012 vide Registration No. 4264. So, it is clear from the records of the CD, which was provided to the SRA also, that Unit No. 1002 was allotted and agreement to sale was registered in favour of Appellants. RP has accepted in his affidavit that IRP was aware of the aforesaid agreement to sell executed in favour of Mr. Rajkumar Jhawar. It is shocking to say the least that this fact was not brought before the Ld. Adjudicating Authority by the RP or the SRA. It is to be noted herein that VDR data forms the basis for preparation of Information Memorandum and it is shared with Prospective Resolution Applicants so that they could incorporate the Data in their Resolution Plan.

# 49. The RP through Additional Documents dated 01.09.2025 had placed the Letter of Reservation of Mr. Amit Kriplani dated 24.10.2011. The letter of reservation is extracted below: . . . . 

# 50. We note from the aforesaid letter of reservation that Flat No. 1002 in Vermont Wing of the project Monarch Brookefields was reserved in favour of Mr. Amit Kriplani and Mrs. Mini Kriplani, who are Non-Resident Indians residing in USA, on 24.10.2011. The details of payments are given in the said letter. More importantly, the letter clearly mentions that on completion of one year from the date of this allotment letter, the allottee shall have option to receive effective the date of this letter, the premium @ 2% per month in lieu of the amount invested by him or may retain the said flat and pay the additional charges as agreed in this allotment letter. We further note that the Kriplanis’ had no agreement to sale registered in their favour; they only had a letter of reservation for the aforesaid flat. This makes them investors in the project and not genuine home buyers.

# 51. We now take notice of the claim filed by Kriplanis in the CIRP of the CD vide Form CA dated 24.11.2019 submitted by Mr. Amit Kriplani. The Form CA is extracted below: . . . . .

# 52. We note from the above claim form, that the Kriplanis filed a claim for two flats for which they had deposited the money and sought the claim amount along with interest, the total claim being Rs.2,58,27,137/-. It is absolutely clear from the above that Kriplanis never sought the possession of the flat for which they had made reservation. They only made a claim for refund of their payment with interest. On the contrary the Appellants have only insisted upon the possession of their allotted flat.

# 53. From the above, we note that Mr. Kriplani holds only an allotment letter for two units including Unit No. 1002, Vermont. Whereas the Appellants possess a registered Agreement to Sell in their favour for the Unit 1002, Vermont placing them on a higher pedestal as a homebuyer. The Kriplanis status on the other hand appears to be that of a speculative investor, who is only seeking return of money with interest and claims only “security” in the flat.

# 54. In this regard we also take note of the judgement of Hon’ble Supreme Court in the Mansi Brar Fernandes Vs. Shubha Sharma & Anr. [(2025) ibclaw.in 353 SC] [CIVIL APPEAL NO. 3826 OF 2020] (2025 INSC 1110), wherein Hon’ble SC defined the meaning of Speculative Investor as follows:

• “18.4.3. Pioneer Urban (supra), in para 56, defines a speculative investor as one who intends to evade possession and “jump ship”, or one who is not genuinely interested in purchasing a flat / apartment. Any allottee, who, from the inception of the agreement, does not intend to take possession, or who later abandons such intent, falls within this category. Such an allottee is primarily concerned with refund or profit, and not with completion of the project.

• 18.4.4. Thus, the determination of whether an allottee is a speculative investor, must be holistic, having regard to the terms of the agreement, the allotment letter, the payment terms, and the overall conduct of the allottee.”

# 55. Intention to possess a dwelling unit remains the sine qua non of a genuine homebuyer’s intent. Based on the criteria laid down by the Mansi Brar (Supra) and the documents on record, we are of the view that the deposit made by the Kriplanis for Flat No. 1002, Vermont Wing of the Monarch Brookefields Project can be classified as made for investment purpose.

# 56. In the present case the Information Memorandum was prepared based on the books of accounts, records and information available in the Virtual Data Room (VDR) with the Interim Resolution Professional and constituted the basis upon which prospective resolution applicants formulated their resolution plans. All Prospective Resolution Applicants have full access to the VDR, as the Resolution plans are based on data made available in the VDR and Information Memorandum. We have seen from the affidavit of the RP that the VDR did have the details of the allocation of the flat in favour of the Appellants, still the same was not considered for inclusion in the Resolution plan. Non-inclusion of such claim reflected in CD’s Records is due to lapse on the part of RP and SRA. The Appellants cannot be held responsible for the same.

# 57. The appellants had stated that they did not come to know of the insolvency due to Covid period and old age-related ailments. As soon as they came to know of the CIRP, they filed their claim. However, the RP rejected their claim very next day on account of delay. As the period of CIRP was almost entirely during Covid, we find merit in the submission of the Appellants. The Respondents in spite of the claim of Appellants figuring in the records of the CD, did not perform due diligence and treat the same in Resolution plan.

# 58. An important point to be noted here is that in a real estate insolvency involving homebuyers, the status of housing every unit is the key decision point as to whether the unit is already sold by CD. If already sold, then is it is fully paid up; or partly paid up. The other category would be unsold units. Based on this information a PRA would prepare his resolution plan.

# 59. The Resolution Plan has categorized the treatment of different categories of homebuyers on the basis of documents. The relevant extract of the Resolution Plan is produced below:

Category A
Payments received towards flat with valid CC and approvals and having registered agreements.	These home buyers have to pay Escalation Charges as mentioned in Annexure ‘I’ with the schedule of payment as described in Annexure ‘J’.The Home buyers who have paid up to 70% of their agreement value will have to pay the balance amount as per the construction linked schedule.The home buyers, who have paid below 70% of their agreement value shall have to complete up to 70% of their agreement value within 30 days from the approval date and balance as per construction-linked schedule.
Category B
i) Payments received towards the flats with CC and approvals and having verified allotment letters.ii) Payments received towards the flats which were approved and registered during the validity of the initial CC but later got removed in the amended CC.iii) Payments received towards shops which were approved & registered during the validity of the initial CC but later got removed in the amended CC.	These home buyers and shop buyers are proposed to be paid 60% of the admitted principal at the end of the plan ie. T+ 730 days.The flat buyers and shop buyers can also opt to purchase new flats from the RA at prevailing or current market rates in case of which 100% of their admitted principal will be adjusted towards the new deal.The buyers opting to buy new flats need to pay 70% of the new deal value within T+ 90 days and the balance as per the construction linked schedule.
Category C
i) Payments received towards the flat which had valid CC at the time of purchase but registered after the amended CC.ii) Payments received towards flats with invalid CC irrespective of being registered or unregistered.	After receiving approvals for balance/additional or future FSI, these flats buyers will be paid 25% of their admitted principal at the end of the plan ie., T+730 days.The flat buyers can also opt to purchase new flats after approvals for balance/additional or future FSI from the RA at prevailing or current market rates in case of which 50% of their admitted principal will be adjusted towards the new deal.The buyers opting to buy new flats need to pay 70% of the new deal value within 30 days of getting approvals for the concerned FSI and the balance as per the construction-linked schedule.

# 60. As we have noted earlier the claim of the Appellants to the Flat No. 1002, Vermont was figuring in the Virual Data Room along with details of agreement to sale which was duly registered. We have also seen from the affidavit of the RP that the Appellants have made full payment for the property, in addition they have made extra payment of around Rs.23 Lakhs which was disbursed by the SBI directly to the CD, on account of a sanctioned housing loan. The Appellants are only claiming right of his allocated flat No.1002 towards which the total consideration of 42 lakhs stands duly paid by them. The appellants have also stated that they are not raising any claim for the balance amount of approximately 23 lakhs. Based on these facts, the Appellants should have been treated as a claimant within category A of the resolution plan as shown in the above table. It is due to the lack of due diligence on part of RP and SRA that the claim of Appellants was rejected without proper treatment in the Resolution Plan.

61. The Appellants being aged persons and heart patients and suffered deterioration in their health during the Covid-19 pandemic were not aware of the initiation of CIRP against the Corporate Debtor. So, they could not file their claim on time. They filed their claim belatedly in June 2024, nearly five years after commencement of CIRP. We have also noted from the records that IRP/RP did not send any communication to the Appellants regarding the initiation of CIRP. Inspite of our clear directions to produce any evidence of communication to the appellant through any means, the RP failed to produce any document on records of CD. In such circumstances, delay cannot be attributed solely to the Appellants, when the RP failed in his duty to identify and notify stakeholders.

62. The Appellants hold a registered Agreement to Sell, vis-a-vis unregistered allotment letters held by Mr. Amit Kriplani who appear to be speculative investors. The RP himself has admitted receipt Rs. 65.72 Lakhs from the Appellants. The Appellants have restricted their claim to Rs.42,00,000/- being the contractual value, thereby establishing bona fides. Therefore, we have no doubt that the Appellants are genuine homebuyers and their claim should have been categorised within Category A of the Resolution Plan.

# 63. The Adjudicating Authority approved the Resolution Plan while the Appellants’ application was pending. This resulted in denial of an opportunity to adjudicate their rights before finalisation of the plan. Such action has caused serious prejudice and undermines principles of natural justice. However, we also note that entire facts of the case were not brought before the Ld. Adjudicating Authority. It is only in the present proceedings the facts about registered agreement to sale, and payment by the Appellants could be brought on record after we insisted upon the RP to file a comprehensive affidavit.

# 64. The Appellant has relied upon the judgment of this Appellate Tribunal in Company Appeal (AT) (Insolvency) No. 63 of 2024. In para 9 and 41 of Judgment this Tribunal has observed as follows:

• “9. In the CIRP, Resolution Plans were submitted, including Resolution Plan by Ashdan Properties Pvt. Ltd.; Classic Promoters and Builders Pvt. Ltd. and Atul Builders India Pvt. Ltd. (in Consortium), which Resolution Plans were approved by the Committee of Creditors (“CoC”) on 13.08.2021. On 24.08.2021, RP filed an Application before the Adjudicating Authority for approval of the Resolution Plan. Certain homebuyers, including two of the Appellants filed their claims in March 2023, which claim was rejected and communication was issued by the RP, informing them that their claim has been filed with delay, cannot be entertained. Some of the homebuyers filed their Application, whose claim was rejected before the Adjudicating Authority in the year 2023, which Applications remained pending for consideration. The Adjudicating Authority heard the IA No. 1950 of 2021 filed by the RP for approval of the Plan and approved the Resolution Plan by order dated 23.06.2023. IAs filed by some of the homebuyers, challenging the rejection of their claims, remained pending, on the date when the Resolution Plan was approved. The homebuyers, who are in Group No. II, have filed these Appeal(s), challenging the order dated 23.06.2023 approving the Resolution Plan. Some of the Homebuyers have challenged subsequent orders dated 01.08.2023. We have already noticed above that Promoters as well as their Group Entities, Operational Creditors and employees have also filed the Appeal(s), as noted above, challenging the approval of Resolution Plan dated 23.06.2023.

• Comp. App. (AT) (Ins) No. 1051/2023

• 41. The Appellant No. 2 Suresh Sanghwi has advanced certain money in the year 2015 to DS Kulkarni and Company registered Agreement dated 30.06.2017 for Flat bearing No 601, G Wing on 6th Floor of Project DSK Vishwa Ph-VI, Anandghan was executed in favour of the Appellant. The registered Tripartite Agreement was executed with the Appellant as purchaser wherein DSK Global Education & Research Ltd. as land owners and Corporate Debtor as developer. By a general entry dated 30.06.2017, the loan advanced by Appellant to DS Kulkarni and Company was adjusted. The Appellant further made payment of VAT and service tax as well as Stamp Duty on registration charge. In the application filed by the Corporate Debtor through the Maharashtra RERA in July 2017, details of Flats sold in G Wing including the name of the Appellant was also mentioned. After admission of CIRP on 26.09.2023, when the Appellant came to know about the CIRP, they filed their claim on 31.03.2023, which was rejected by RP on the ground of delay. I.A. No. 2114/2023 was filed by the Appellant before the Adjudicating Authority which claimed to be dismissed on 22.11.2023 against which Comp. App. (AT) (Ins) No. 192/2024, was filed by the Appellant which was dismissed by this Tribunal on 21.02.2024. The present appeal has been filed by the Appellant challenging the order dated 23.06.2023, approving the Resolution Plan by which Resolution Plan, the Appellant have not been recognised as Homebuyers.

• 223. ……5. Company Appeal (AT) Insolvency Nos. 1050 and 1051 of 2023. • The Appellant(s) having successfully proved the allotment by Registered Deed executed on 30.06.2017 and their payments also reflected in the ledger of the Corporate Debtor, they are also entitled to claim treatment as has been given to the claims of the other Homebuyers. They are entitled to be treated in the same manner as other Homebuyers, whose claims have been admitted in the Resolution Plan. The SRA is directed to treat the Appellant(s) also allottees of their respective units and they shall also be given the units as per the Resolution Plan.”

# 65. The case of the appellant is identical to homebuyers in Ashdan (supra). The Appellants herein are also homebuyers, who had filed a belated claim after the approval of the Resolution Plan by the CoC, but before the same was approved by the Adjudicating Authority and they are squarely covered by the Ashdan Properties (supra) judgment of This Tribunal.

# 66. The Appellant placed reliance on the Judgement of this Tribunal in the case of “Puneet Kaur v. K.V. Developers Private Limited” [(2022) ibclaw.in 416 NCLAT] : [2022 SCC Online NCLAT 245”] particularly para 27 of the judgment which is extracted below:

• “27. In the present case there is no denial that details of the appellant(s) and other homebuyers, who could not file their claims, have not been reflected in the information memorandum. There being no detail of claims of the appellant(s), the resolution applicant could not have taken any consideration of the claim of the appellant(s), hence, the resolution plan as submitted by the resolution applicant cannot be faulted. However, we are of the view that the claim of those homebuyers, who could not file their claims, but whose claims were reflected in the record of the corporate debtor, ought to have been included in the information memorandum and resolution applicant, ought to have been taken note of the said liabilities and should have appropriately dealt with them in the resolution plan. Non-consideration of such claims, which are reflected from the record, leads to inequitable and unfair resolution as is seen in the present case.

# 67. We note that in this case the information about the allotment of Unit and Registered Agreement to Sale was available with IRP in VDR. The information and access to VDR was available to PRAs. No information was shared with the Appellants about initiation of CRP. The claim of the appellant should have been automatically dealt with by the SRA in the Resolution Plan. Non-consideration of such claims which are part of record would be inequitable and lead to unfair resolution, as in present case. The case of the Appellant is fully covered by the artio of Puneet Kaur (Supra).

# 68. The Respondents have cited the following cases in support of their contention that belated claims cannot be entertained after the approval of Resolution Plan by the CoC, which was subsequently approved by the Adjudicating Authority.

i. Judgement of Hon’ble Supreme Court in “CoC of Essar Steel Vs. Satish Kumar [(2019) ibclaw.in 07 SC] : (2020) 8 SCC 531” wherein it was observed that the SRA cannot be faced with ‘undecided’ claims after the resolution plan has been approved and/or accepted as this would amount to a hydra head popping up which would cause a flurry to the implementation of the Resolution Plan. This ratio is not applicable in the present case as the RP/Committee of Creditors (CoC) ignored the claim of a homebuyer whose allotment was already on record and now they cannot take shelter under the “Hydra-head” argument to unjustly enrich the SRA at the cost of a bona fide Homebuyer.

ii. The Respondent No. 1/RP’s reliance on the judgment of the Hon’ble Supreme Court in “RPS Infrastructure Ltd. Vs. Mukul Kumar [(2023) ibclaw.in 102 SC] :  (2023)10 SCC 718)”, regarding the absolute bar against belated claims. However, this case applies strictly to cases where the creditor was sleeping over its rights despite having active knowledge of the CIRP proceedings. It cannot be extended to a bona fide homebuyer whose claim is deeply rooted in the existing financial records of the Corporate Debtor as shown by the Appellant in the present case.

iii. Reliance was placed on the judgment of this Tribunal in “Sneha Kore & Anr. vs. Arun Kapoor & Anr . Resolution Professional of Monarch Brookefields LLP [(2025) ibclaw.in 759 NCLAT] : [Comp. App. (AT) (Ins) No. 2109 of 2024]”. However, The “Clean Slate” doctrine and the principle of absolute extinguishment under Section 31 are designed to protect SRA from unforeseen liabilities. They cannot be used as a legal eraser to escape accountability for debts that were documented and active within ongoing judicial proceedings during the CIRP.

# 69. We note that in the present case the Appellants who are homebuyers had a registered agreement to sell; they have made full consideration for the Unit No. 1002; the information about the allotment and agreement to sell was available in the virtual data room with IRP; the IRP did not send any communication to the Appellants about the CIRP. Further, the claim of the Appellants was rejected solely on the ground of delay without any due diligence by the RP. On the other hand, the claim of Mr. Amit Kriplani and his wife who are NRIs based in USA was admitted. The non-acceptance of claim of a genuine home buyer leads to inequitable and unfair resolution as is seen in the present case. The Appellants’ case is squarely covered by existing judicial precedent noted earlier.

# 70. In view of the findings above, the impugned order is set aside. The appeal is allowed and the claim of the Appellants is admitted in Category A of claims in the Resolution Plan as an addendum. Pending I.A.s if any, are closed. No order as to costs.

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