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2024 (3) TMI 1139 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHIObjection to Resolution Plan submitted - categorization of the Appellant as ‘affected’ homebuyer - HELD THAT:- On looking into the Agreement dated 09.08.2018, the Agreement although refers to several earlier events and proceedings prior to 09.08.2018, but it does not refer to Agreement dated 10.07.2015. Agreement dated 09.08.2018 having been executed subsequent to 15.09.2017, on which date the Corporate Debtor obtained loan from LICHFL, which obliged the Corporate Debtor to make an allotment only after the NOC from the LICHFL. The requirement of obtaining NOC was very much there and it is not the case of the Appellant that for allotment dated 09.08.2018, any NOC was obtained from LICHFL by the Appellant. Thus, categorization of the Appellant as ‘affected’ homebuyer cannot be faulted - there is no error committed by the SRA in classifying the Appellant into ‘affected’ homebuyer as his allotment dated 09.08.2018, having been obtained without NOC of LICHFL. Back door entry in the CIRP - HELD THAT:- EOI was considered by the CoC. The subsequent events as noticed above indicate that IA No.643 of 2021, which was filed for approval of Resolution Plan of Vira Realspace LLP for Phase-1 was decided to be withdrawn by the CoC in its Meeting on 03.08.2021 and it was further resolved by CoC to rescind the previous From-G and issue a fresh advertisement for holistic resolution of the Corporate Debtor. Subsequently, on 08.08.2021 fresh Form-G was published, where, the last date for submitting of EOI was 23.08.2021. Respondent No.5 has submitted EOI on 17.08.2021 and thereafter submitted a Resolution Plan, which was deliberated and approved by the CoC. The submission advanced by the Appellant with regard to EOI submitted against Form-G, which was subsequently rescinded by the CoC is no more relevant - Resolution Plan, which ultimately was approved was in consequent to Form-G published on 08.08.2021 and there is not even any submission that with regard to Form- G dated 08.08.2021, there is any breach of timeline by Respondent No.5. Next submission of the Appellant is that when Plan with regard to Phase-1 was approved on 01.03.2021 by CoC and IA No.643 of 2021 was filed for approval of such Resolution Plan, the CoC could not have taken any decision to invite fresh Form-G, which makes the entire process of CIRP contrary to the Code and the CIRP Regulations - HELD THAT:- In view of the CoC decision in its 13th Meeting to withdraw the Resolution Plan of Phase 1, the approval of Resolution Plan of Phase-1 was rendered infructuous, which was recorded by the Adjudicating Authority and no one has challenged the said order. It is also relevant to notice that CoC noted the issue as to whether the Resolution Plan of Phase-1 to be withdrawn and the said Agenda was approved by the CoC for withdrawal of Phase-1 Resolution Plan and Appellant also voted in favour of withdrawal of Phase-1, Resolution Plan, which material is on the record. It is difficult to see how the learned Counsel for the Appellant is raising submission that when there was approval of Resolution Plan of Phase-1, the CoC could not have proceeded further to issue fresh Form-G - there are no substance in this submission of learned Counsel for the Appellant. The next submission of learned Counsel for the Appellant that there was no due diligence with regard to Section 29A while approving the Resolution Plan of SRA - HELD THAT:- From the facts brought on record, it does appear that Appellant is minority homebuyer, who is objecting to the approval of Resolution Plan, where majority homebuyers have voted in favour of the Resolution Plan, which is evident from the 99.96% vote share, the Plan has been approved - In view of the judgment of the Hon’ble Supreme Court in Jaypee Kensington Boulevard Apartments Welfare Association [2021 (3) TMI 1143 - SUPREME COURT] the Appellant has to sail with the decision of the majority of the homebuyers, who have decided to approve the Resolution Plan. Total number of homebuyers are 272, out of which 140 are ‘affected’ home buyers and 132 are ‘unaffected’ homebuyers. Out of 140 ‘affected’ homebuyers, 86 have voted in favour of the Plan and only 26 have voted against the Plan. Thus, majority of homebuyers have voted in favour of the approval of the Resolution Plan. Hence, the Appellant cannot be heard to contend against the majority of homebuyers, who have decided to approve the Resolution Plan. The submission of the Appellant that RP conducted the CIRP in contravention of the Code and CIRP Regulations also does not find any substance from the materials on record and proceedings undertaken by the RP - there are no material irregularity in conducting the CIRP by the RP, which warrant interference. There are no ground to interfere with the impugned orders dated 19.07.2023, which are sought to be challenged in these two Appeals - appeal dismissed.
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