BY srihari gopal and vedant malpani, fourth-year students at GNLU, gandhinagar
In the latter half of the last decade, the Real Estate (Regulation and Development) Act, 2016 (‘RERA’) and the Insolvency Bankruptcy Code, 2016 (‘IBC’) have arguably been the two most revolutionary legislations in India. While IBC replaced a broken system of corporate resolution and restructuring under disparate laws with a comprehensive self-contained code, RERA introduced accountability to the opaque real estate sector, which over the years had gained infamy for its severe delays, irregularities and unfair practices. The legislations also provide for the constitution of two regulatory bodies, i.e. the Insolvency and Bankruptcy Board of India (‘IBBI’) and the Real Estate Regulation Authority respectively to protect the interest of the stakeholders. Over the years, RERA and IBC have come to be recognized as complementary legislations. However, their interplay has resulted in significant overlapping issues which cannot be ignored.
So far, the biggest issue concerning the two legislations has been the result of a recent amendment to the IBC in March 2020 (‘the Amendment’), which has left the homebuyers nearly remediless. This Amendment takes the homebuyers, who were only recently recognized as creditors under the IBC, a step backwards. The amendment’s constitutional validity has been challenged, and on 15th June 2020, the Supreme Court (‘SC’) has ordered the government to respond to the petitioner’s claims.
Before delving into the issues with this Amendment and the judgement, it would be relevant to briefly touch upon the status of homebuyers under these legislations over the years.
Position of homebuyers under the IBC before 2018
Under Section 2(d) of the RERA, a homebuyer is an allottee who acquires a property through sale, transfer or otherwise but does not include a tenant. Before the enactment of RERA, a homebuyer had no remedy against a real estate developer to receive a monetary compensation in case of default and had to resort to the Consumer Protection Act (‘CPA’). Even after enactment of RERA, there were no provisions for a time-bound resolution, which left homebuyers in dire need of an effective, speedy remedy.
Prior to the 2018 Amendment to the IBC, homebuyers could not file for insolvency of real estate developers as there was no clarity as to the nature of debt owed to a homebuyer. Since the IBC classified debts as either operational or financial in nature, homebuyers, whose transactions were in the nature of a ‘sale and purchase’, did not fall under either categories.
The issue of classification of homebuyers under IBC resurged in decisions like Nikhil Mehta v. AMR Infrastructure, where the NCLT Delhi considered that homebuyers could be brought under the definition of financial creditor due to the nature of their transactions having the ‘commercial effects of a borrowing’. Further, in Chitra Sharma v. Union of India, the Supreme Court attempted to protect the interest of homebuyers by appointing an Advocate on Record to represent their interest in the Committee of Creditors. Nonetheless, courts could only grant limited protection without a change in legislation.
Further, it became all the more important to resolve this issue, considering that once an insolvency petition is initiated, a moratorium under Section 14 of the IBC is imposed on all legal proceedings, including those under the RERA (essentially leaving homebuyers out of the process). It was in this light that the IBC Amendments of 2018 and 2020 were introduced.
Issues with the 2020 Amendment: You can have an apple, but you cannot eat it
Through the 2018 Amendment to the IBC, homebuyers were recognized as financial creditors, with the amount owed to them coming within the definition of a financial debt having the commercial effects of a borrowing. This came as a huge respite to homebuyers, who often made substantial investments into real estate projects, both in terms of loans and EMIs. The Amendment also survived a constitutional challenge in the decision of Pioneer Urban Land and Infrastructure Ltd. and Anr. v. Union of India and Ors.
Due to the extraordinary number of appeals brought forth by real estate developers challenging the 2018 Amendment, another amendment was introduced in 2019 through an ordinance, which was later inserted in the IBC by an amendment in March 2020. It introduced a minimum threshold for initiation of insolvency proceedings against a builder, requiring that an application for corporate insolvency resolution process should not be filed by less than 100 or 10 per cent of all homebuyers in a project, whichever was lesser. It was also stated that the threshold limit had to be complied with within 30 days of the promulgation of the ordinance. This was largely unfair to the homebuyers, as before this Amendment even a single homebuyer, with a claim of Rs.1 lakh or more could move to NCLT against the defaulting developer. The Amendment placed homebuyers in a disadvantaged position as compared to other financial creditors who were not subject to such a requirement. The constitutionality of this Amendment was challenged before the Supreme Court in the case of Manish Kumar v. Union of India & Anr. At present, the matter is sub-judice.
In this case, homebuyers have challenged the Amendment claiming that it has rendered them remediless under the IBC. They further contended that the Amendment is unfair, arbitrary and in violation to Article 14 and 21 of the Indian Constitution due to unequal treatment of similarly placed creditors. Interestingly, the idea of a similar threshold was already rejected by the Supreme Court in the Pioneer case, which makes it all the more confusing as to why the amendment was introduced in the first place. The SC, in this case, stated that the objective of keeping the threshold limit at Rs. 1 lakh was to specifically enable small financial creditors (homebuyers) to trigger the Code just like other similarly placed financial creditors such as banks and financial institutions to whom crores of money may be due.
The threshold requirement has been subjected to critique in several other instances. Mr. T.K. Rangarajan, a Rajya Sabha MP and a member of the Standing Committee of Finance, had written a letter to the chairman of the Committee citing his concerns with the minimum threshold requirement. In his report, he alleged that (a) the legislature has been influenced by a strong lobby of builders in introducing the Amendment, (b) it is unfair to homebuyers, having individual claims of more than the minimum threshold of Rs. 1 lakh (now Rs. 1 crore), as unlike other operational and financial creditors, they cannot file an proceed against defaulting builders without fulfilling the minimum threshold requirement, (c) it is unreasonable to expect the homebuyers to unite for the purposes of an application when they are unaware of each other in most cases, and (d) there is no such requirement placed on other similarly placed financial Creditors, such as creditors who are a part of a joint lenders scheme.
The Insolvency Law Committee released a report in February, 2020 in an attempt to justify the threshold. The primary reasons stated were that (i) the threshold was imposed so that an application is filed only in the collective interest of the homebuyers (ii) even if an application under the IBC fails for want of the threshold, alternative remedies under RERA are still available, (iii) undue pressure will be exerted on the corporate debtor for even ‘minor disputes’ without the threshold and (iv) RERA disputes are heavily contentious, and this will be a set-back on the time-bound RERA process.
None of these reasons justifies the requirement. Undermining claims of single homebuyers as ‘minor issues’ irrespective of the claim they are owed is unfair and arbitrary, considering that homebuyers often invest their life savings or incur significant debt in real estate purchases. In fact, the requirement of the minimum threshold will only make the disputes more contentious, considering that homebuyers, with their limited resources, now have to not only gather information about other homebuyers by themselves but also consolidate their individual claims to file the insolvency application, all within a span of 30 days. Further, as discussed above, though the remedies in RERA and the IBC are concurrent, IBC provides the more time-bound and efficacious solution. Therefore, the mere existence of another remedy is no excuse to limit homebuyers’ rights under the IBC.
The ailing real estate sector has been drastically hit due to the pandemic. Many experts from the industry have shown concern about the severe reduction in demand in the housing sector. It is also forecasted that homebuyers are among the ones who are going to be the most affected, as real estate constructions have come to a standstill due to the nationwide lockdown imposed by the Government. With the subsequent costs being expected to exponentially increase, it can be reasonably expected that the number of cases relating to insolvencies in the real estate sector will also rise considerably once the IBC comes back into force. This makes it all the more important to provide expansive protections to homebuyers.
We believe that the current amendment leaves homebuyers without any effective recourse under the IBC. Corporate debtors are already protected against bogus applications through the new increased thresholds under Section 4 of the IBC. The amendment is therefore nothing but an unnecessary obstacle. However, in case the amendment is found to be constitutional, the RERA should be amended to devise a mechanism for homebuyers to be aware of other homebuyers involved in the project. However, the legislature should primarily consider repealing the amendment completely, considering that the Supreme Court had already struck down the idea of such thresholds before.