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2018 (10) TMI 232 - Tri - Insolvency and BankruptcyCorporate insolvency process - resolution deemed to be passed - deadlock created by the low percentage of votes cast by a new category of financial creditor - Real Estate (Commercial) and Real Estate (Residential) - Whether threshold of Voting shares’ in respect of the class of Financial Creditors Real Estate (Commercial) and Real Estate (Residential) as provided in various provisions of the Code (e.g. section 22(2) provides threshold of 66%) is mandatory - Held that:- In the present case merging of categories of all financial creditors and treating them as one would also amount to treating unequals as is equal which may result in violation of Article 14 of the Constitution. Therefore providing the same threshold for both categories may result to a declaration that those provisions are ultra vires of Article 14 of the Constitution. In choosing the authorised representative each one of them is not to participate for various reasons. Probably it is for the aforesaid reasons that in Regulation 16A of Insolvency and Bankruptcy Board of India (Insolvency Resolution process for corporate person) Regulation 2016 a provision has been made for selecting an insolvency profession which is choice of highest number of financial creditor in the class to act as authorised representative of the creditor of the respective class. If such a distinction is not implied then there is inherent danger of section 12(2), 12 A, 22(2), 27 (2), 28(3), 30(4), 33(2) & 21 (8) becoming unworkable and unconstitutional. It may thus be declared utra vires. In the case of Real Estate (Commercial & Residential) comprising 100% voting share in CoC the aforesaid provision must be read to mean that a resolution would be deemed to be passed if it is voted by highest number of financial creditors in the class of Real Estate (Commercial & Residential). It would make the court workable and would also advance the object of this progressive legislation rather than defeating it. We approve (Agenda No.5) the name of interim resolution professional by appointing him as resolution professional because he had secured largest percentage of voting share threshold. Accordingly Mr Vikram Bajaj, Flat No. 12, Vasudaha Apartment, Plot No. 41, Sector 9 Rohini Delhi-110085 is appointed as resolution professional who was earlier worked as interim resolution professional.
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