Homebuyers’ Conundrum = Damned If You Do; Damned If You Don’t

The issue of real estate sector and insolvency provisions has been dealt with in detail in the 2nd Edition of my commentary titled “Insolvency and Bankruptcy Code: Law and Practice”, available at here

The purpose of this article is to analyse the status of homebuyers during the CIRP process.

Overview — homebuyers’ status in IBC

The Insolvency and Bankruptcy Code, 2016 (IBC) has redefined what accountability of a corporate board means towards its creditors, and suppliers. The added dimension is when a corporate board of a real estate company was stipulated to be accountable towards its customers, i.e. homebuyers as well.

The readers, by now, must be well acquainted with the 2018 Amendment to the IBC wherein Parliament included allottees in a real estate project to be financial creditors (FCs) under Section 5(8) IBC:

5. Definitions.— In this Part, unless the context otherwise requires,—…

(8) “financial debt” means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes—…

(f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing;

¹[Explanation.—For the purposes of this sub-clause,—

(i) 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, Real Estate (Regulation and Development) Act, 2016 (16 of 2016);]

(emphasis added)

Of course, the provision under Section 7 IBC was subsequently amended in 2020; wherein it was added:

7. Initiation of corporate insolvency resolution process by financial creditor.—(1) …

Provided further that for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent of the total number of such allottees under the same real estate project, whichever is less.²

The aforesaid amendment prevents the invocation of insolvency proceedings by a single homebuyer, with a relatively smaller claim, from taking the corporate debtor (CD) to the doors of the adjudicating authority under the IBC and mandates a minimum threshold requirement of either at least 100 of such creditors in the same class or not less than 10 per cent of such total number of members in the class, whichever is less; to invoke the provisions of the IBC.

The provision of real estate allottee, i.e. a homebuyer is further qualitatively defined in its scope by the Supreme Court in Pioneer Urban Land and Infrastructure Ltd. v. Union of India³, where the vires of the amendment were challenged. While upholding the constitutionality of the amendment elevating a homebuyer to the status of a financial creditor; the court in Pioneer case, probably to assuage the fears of the real estate sector that the amendment may deal its death knell, went ahead and observed a major qualification. The court held that a CD may also, in terms of Section 65 IBC⁴ show that the creditor-allottee has invoked the provisions of the IBC fraudulently, with malicious intent, or for an object other than the resolution of insolvency. The court illustrated that the same could be done by showing that the creditor-allottee is a speculative investor and not a person who is genuinely interested in purchasing a flat/apartment or that the creditor-allottee in the falling real estate market is an opportunist who is not willing to perform its end of the contract, and is rather seeking to arm-twist the debtor-builder into refunding the money, failing which such creditor may initiate proceedings under the IBC.

However, the broader purpose remains intact, which is to remedy the plight of a homebuyer who has toiled away his/her entire earning for a dream of owning a roof.

Status of homebuyers — during CIRP

So, while the status of homebuyers during the pre-CIRP process is enshrined and crystallised; we now turn to the question of where do the homebuyers find themselves during the corporate insolvency resolution process (CIRP).

The Supreme Court in Amit Nehra v. Pawan Kumar Garg⁵, was confronted with an issue where one of the homebuyers sought execution of conveyance deed in their favour, while the CIRP was ongoing. The appellants before the Supreme Court had booked an apartment in the real estate project in the year 2010 and in the year 2011, executed an apartment buyer’s agreement with the CD for the purchase of the apartment and paid almost the entirety of the contractual amount. The balance amount was agreed to be adjusted on account of delay in delivery of possession.

While, the possession was to be delivered before November 2013, the same was not done and the CD came under CIRP. When the homebuyers sought possession and execution of conveyance deed, the same was denied. The Supreme Court therein held:

38. The facts of the present case highlight the plight of individual homebuyers, who invest their life savings in the hope of securing a roof over their heads. The appellants had paid nearly the entire sale consideration as far back as 2011. To deny them possession today, despite their claim having been duly verified and admitted, would inflict unfair and unwarranted prejudice.

39. In light of the foregoing analysis and reasoning, the appeal merits acceptance. The judgment of the NCLAT dated 10 January 2025 passed in Company Appeal (AT) (Insolvency) No. 1365 of 2023, as well as the order of the NCLT dated 26 July 2023 passed in I.A. No. 5579 of 2021 in CP (IB) No. 934(PB)/2018, are hereby set aside.

40. Respondent(s) shall execute the Conveyance Deed and hand over possession of Apartment No. GBD-00-001, Block D, IREO Rise (Gardenia), Mohali to the appellants within a period of two months from today.

Pertinently, vide Notification No. IBBI/2024-25/GN/REG122, dated 3 February 2025 (w.e.f. 3 February 2025) the statutory regulator, the Insolvency and Bankruptcy Board of lndia (IBBI) added Regulation 4-E to the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, which stipulated:

4-E. Handing over the possession.—After obtaining the approval of the committee with not less than sixty-six percent of total votes, the resolution professional shall hand over the possession of the plot, apartment, or building or any instruments agreed to be transferred under the real estate project and facilitate registration, where the allottee has requested for the same and has performed his part under the agreement.

Resultantly, the resolution professional (RP), with Committee of Creditors (CoC) approval and upon the fulfilment of contractual and statutory obligations by the homebuyer concerned, could now hand over possession of plots, apartments or buildings during the pendency of the resolution process, allowing timely occupation and registration of units instead of forcing allottees to wait until plan approval or process completion.

The Supreme Court in Elegna Co-op. Housing & Commercial Society Ltd. v. Edelweiss Asset Reconstruction Co. Ltd⁶., (2026) 264 Comp Cas 239 ., has directed that where the CoC, upon due consideration, finds it not viable to approve handover of possession in terms of Regulation 4-E of the CIRP Regulations, it shall mandatorily record cogent and specific reasons in writing for such decision.

The prevailing position of law under Regulation 46-A⁷, Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 seems to support the hypothesis that homebuyers in possession of a plot in a real estate project; must be allowed to proceed with the ownership of the same. The regulation, though applicable during liquidation stage (i.e., post CIRP stage) categorically stipulates that in cases where the CD has already handed over possession of a unit to an allottee in a real estate project, such unit will not form part of the liquidation estate. The same is intended to ensure that the homes in respect of which possession is granted are ring-fenced from distribution among other creditors, safeguarding the property and occupancy interests of allottees who have effectively stepped into the shoes of owners, and reinforcing certainty for those who have already taken possession.

The National Company Law Appellate Tribunal (NCLAT) in Alok Sharma v. IP Construction (P) Ltd.⁸, was confronted with a situation wherein the registered sale deeds were not executed, while the possession was handed over. The NCLAT specifically opined that registration of the houses was a “procedural requirement”, as the appellants therein were already in possession of those spaces from 2015, whereas CIRP was initiated on 11 February 2019.

It had also clarified that the moratorium does not prevent the recognition or completion of pre-existing rights in favour of stakeholders who are not seeking fresh enforcement, but the formalisation of what has already been earned. Resultantly, the NCLAT had directed the “resolution professional” to execute the sale deed after collecting “dues and costs”, if any, remaining unpaid.

Recently, the National Company Law Tribunal (NCLT), Indore Bench in Harminder Singh Bhatia v. Devvrat Developers (P) Ltd.⁹ had directed the homebuyer-applicant to deposit the successful resolution applicant (SRA), the balance sale consideration, and thereafter, directed the SRA (upon receipt of the said balance consideration and interest) within one month, to execute and register the sale deed/conveyance in favour of the applicant and hand over lawful possession of the flat.

The aforesaid decision, however, is stayed by the NCLAT in appeal.¹⁰ However, the ground taken in appeal was that since the resolution plan was already approved and no claim had been filed by the homebuyer, the same resulted in his rights being extinguished in light of Section 31 IBC and the judgment of the Supreme court in Ghanashyam Mishra & Sons (P) Ltd. v. Edelweiss Asset Reconstruction Co. Ltd.¹¹

Therefore, the broader principle remains the same as held in Alok Sharma case¹².

IBBI report addressing the conundrum

The Ministry of Housing and Urban Affairs (MoHUA) had constituted a high-level Expert Committee under the Chairmanship of Mr Amitabh Kant, vide order dated 31 March 2023, with the mandate to holistically examine all issues related to legacy stalled real estate projects and recommend practical, implementable measures for their completion and timely handover of homes to homebuyers.

The Committee recommended:

II. Execution of Registration/Sub Lease deeds for All Occupied Units

a. The Committee has examined the status of the pending Registration/Sub Lease deeds. The prevalent delay in the execution of Registration/subleases, despite project completion, is largely attributable to instances of builders defaulting on their dues to the relevant authorities. This has adversely affected genuine home buyers, who have fulfilled their obligations but are yet to receive their legitimate rights.

b. In light of these findings, the Committee strongly recommends immediate registration/execution of subleases in favour of these rightful home buyers. This should not be contingent on the recovery of dues from the builders. This would benefit approximately about one lakh homebuyers.

c. — e. …

III. Occupancy/Possession of all substantially completed projects

a. The Committee has noted numerous instances where construction projects are substantially completed, yet possession remains undelivered due to varied administrative hurdles, like the procurement of No Objection Certificates (NOCs), Completion certificates, and similar necessary approvals. The Committee recommends that RERA should identify such projects on a crash basis for resolution within a period of the next thirty (30) days.

b. The allotees may be given the option to take possession of these units on ‘as is where is’ basis. The allotees could get the interiors of their home finished from balance funds which they have not paid. Once identified, efforts should be undertaken to expedite the clearance process including Occupation and Completion certificates for these projects, ensuring that the necessary approvals are granted promptly and efficiently. This should not be contingent on the recovery of dues from the builders. This process should be completed within six months to avoid any further delays. Once units are handed over, registration/sub-lease should be done.

c. — d. …

The recent report of the statutory regulator, the IBBI, titled “Report of the Committee on Framing Guidelines for Insolvency Proceedings in Real Estate Sector”¹³ April 2026, constituted by the IBBI pursuant to the directions of the Supreme Court in Mansi Brar Fernandes v. Shubha Sharma¹⁴ , sheds light on this issue. The report examines the issues arising in the conduct of insolvency resolution processes involving real estate projects under the IBC. The IBBI Committee also referenced the findings of the Amitabh Kant Committee Report.

The Committee noted that while all allottees are classified as FCs under the IBC, they often seek distinct forms of relief, such as:

1. possession of the dwelling unit, or

2. execution of conveyance/registry, or

3. refund of amounts paid, with or without interest.

The same, in the opinion of the Committee, has led to conflicts of interest, impractical resolution structures, and post-approval litigation.¹⁵

The Committee while did not recommend any distinction among homebuyers for voting purposes in the CoC, it recommended that the RPs may be mandated to classify homebuyers into subcategories based on the nature of relief sought, i.e.

1. allottees seeking possession of units,

2. allottees seeking execution of conveyance/registry, and

3. allottees seeking refund of amounts paid.¹⁶

The Committee had further recommended that the homebuyers should be required to exercise the choice between possession or refund within a specified time-frame, to be prescribed by regulations or guidelines, failing which a default option may apply.¹⁷

Furthermore, the Committee recommended that in cases where a unit in a real estate project is complete on or before the CIRP, the regulatory framework may permit the RP to hand over possession of substantially completed units to eligible allottees without requiring prior approval of the CoC.¹⁸ It further recommended that in situations where the RP, upon due consideration, finds it not viable to approve the handover of possession, he shall mandatorily record cogent and specific reasons in writing for such decision.¹⁹

It is submitted that the same seemingly suggests a revamp of Regulation 4-E, Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.

The Committee further recommended that the resolution plans in real estate CIRPs should be required to provide clear options to homebuyers, enabling them to elect between continuation in the project for possession of the unit, or exit from the project through a refund of the amount paid, with interest as may be determined in the resolution plan.²⁰

Conclusion

In conclusion, it is submitted that the recommendations of the IBBI in its “Report of the Committee on Framing Guidelines for Insolvency Proceedings in Real Estate Sector” April 2026 had made compelling suggestions. The plight of the homebuyers even during the CIRP is a subject very seldom highlighted and requires heavy rebooting.

Homebuyers during the CIRP — particularly those with full payment, possession, yet an unregistered title — remains a critical gap demanding urgent legislative attention. While judicial pronouncements in the Amit Nehra case²¹, the Alok Sharma case²², and the IBBI’s April 2026 Committee Report have progressively reinforced their rights, the framework still falls short of a comprehensive statutory remedy. Registration must cease to be held hostage to a developer’s insolvency. The IBBI Committee’s recommendation to sub-classify homebuyers, mandate clear possession or refund options during the CIRP and even delineating guidelines for prospective resolution applicants, offers a pragmatic roadmap. Parliament and the statutory regulator, the IBBI, must act decisively to convert these recommendations into binding statutory provisions, ending the homebuyer’s enduring conundrum during the CIRP once and for all.