NCLAT: Only RP or Liquidator Can File plea u/s 43 of IBC: NCLAT Dismisses Homebuyer’s Application [Read Order]

The Delhi bench of the National Company Law Appellate Tribunal (NCLAT) dismissed the single home buyer’s application, noting that an application under Section 43 of the Insolvency and Bankruptcy Code (IBC), 2016, can only be filed by an insolvency professional while acting as a resolution professional (RP) or liquidator and no one else.

Coming to the facts of the case, Ramprasad Vishvanath Gupta, a homebuyer, has filed three separate appeals before the NCLAT challenging orders passed by the NCLT, Mumbai Bench. The first appeal (Company Appeal No. 442 of 2025) pertains to the rejection of his application under Section 43 of the IBC, which sought avoidance of preferential transactions. The second (Appeal No. 474 of 2025) challenges the NCLT’s refusal to reject the resolution plan submitted by La Mer Developers Limited in consortium with Neel Builders. The third appeal (No. 559 of 2025) arises from the NCLT’s approval of the resolution plan itself.

Looking into the facts of the first appeal, the appellant has filed an application under Section 43 seeking a declaration of a certain transaction undertaken by the corporate debtor as a preferential transaction.

Section 43 of the IBC deals with preferential transactions. Section 43(1) provides that where the liquidator or the resolution professional is of the opinion that the corporate debtor has, at a relevant time, given a preference in such transactions, he shall apply to the Adjudicating Authority for avoidance of preferential transaction.

Stay Updated with the Latest Audit Report Formats & Audit Trials Requirements!, Click Here

The adjudicating authority rejected the application through the impugned order, noting that the appellant, being a single home buyer, has no authority to file an application under Section 43 of the Act. The adjudicating authority also imposed a cost of Rs 50,000 on the applicant.

The NCLAT relied on the impugned order passed by the NCLT, in which it was stated that “A plain reading of Section 43 of the Code makes it amply clear that an application under that Section can only be filed by an insolvency professional while acting as a Resolution Professional or liquidator and none else.“

The NLCAT held that the application under Section 43 filed by the appellant, who is a homebuyer, cannot be entertained as a resolution professional to file an application for avoidance of preferential transactions.

The bench comprising Justice Ashok Bhushan (Chairperson), Barun Mitra (Technical Member) and Arun Baroka (Technical Member) upheld the impugned order but deleted the Rs. 50,000 cost imposed on the appellant.

Support our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates