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Insolvency and Bankruptcy - Case Laws
Showing 1 to 20 of 128 Records
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2021 (2) TMI 1368
Seeking for liquidation of the Corporate Debtor/Company in Liquidation - HELD THAT:- In the present instant, since the Corporate Debtor has been sold as a going Concern, the Liquidator approaching this Tribunal for dissolution of the Corporate Debtor does not arise. In the absence of the dissolution, the life of the Company is not extinguished and continues to survive, albeit, in the hands of the successful bidder viz., the Applicant herein. The Applicant is required to be aware of the above consequences and most of the reliefs as sought having been taken care of in terms and conditions of the Deed of Sale being the bargain between the parties and also taking into consideration the above position of law that the Corporate Debtor continues in existence and not dissolved.
Further in relation to the constitution of the Board of Directors in Paragraph No. 21, it has been pointed out that it is open to the Applicant to constitute Board as per the Companies Act, 2013 and individuals concerned to act accordingly, since the Applicant has purchased the Unit as a going concern - However, in relation to exemption of Stamp Duty and Tax payment and other concessions, it has been observed that it is for the Authorities accordingly to consider the requests of the Applicant. Similarly, if any concessions or any exemptions are being sought by the Applicant herein, it is for the Authorities to consider the same.
Application disposed off.
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2021 (2) TMI 1367
Seeking impleadment as a necessary party - pre-admission stage under Section 7 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The ground projected by the Appellant in his capacity as Resolution Professional of NDL for seeking impleadment in pending consideration before the Adjudicating Authority does not warrant impleadment of Appellant as party Respondent. In an application under Section 7, the Financial Creditor and the Corporate Debtor alone are the necessary party and the Adjudicating Authority is, at the pre-admission stage, only required to satisfy itself that there is a financial debt in respect whereof the Corporate Debtor has committed a default warranting triggering of CIRP. The Adjudicating Authority is required to satisfy itself in regard to there being a financial debt and default thereof on the part of the Corporate Debtor besides the application being complete as mandated under Section 7(5) of the ‘I&B Code’ and then pass an order of admission or rejection on merit as mandated under sub-section (4) of Section 7 within 14 days. No third party intervention is contemplated at that stage.
No lengthy hearing is warranted at the pre-admission stage nor can the dispute in regard to shareholding or inter se directorial issue be entertained.
There are no legal infirmity in the impugned order passed by the Adjudicating Authority. The course open to Appellant would be to apprise the IRP of the admission of the claim in CIRP of NDL if the application under Section 7 pending before the Adjudicating Authority is admitted and IRP is appointed. Such situation may not arise if the Adjudicating Authority is not satisfied about debt and default.
Appeal dismissed.
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2021 (2) TMI 1365
Refusal to accept the application of Appellant seeking modification of order dated 19th July, 2018 - direction in the name of Resolution Professional to abide the terms and conditions of four work orders - direction to not take charge or control of the current account operated by the AppellantCIRP being at an advanced stage and liquidator having been appointed - HELD THAT:- It is opined that the appeal can be disposed off without issuing notice to Respondents - the notice is dispensed with - Since a liquidator has been appointed, under provisions of Section 38 of the Insolvency and Bankruptcy Code, 2016 (I&B Code) it is enjoined upon the liquidator to receive and collect the claims of the creditors within a period of 30 days from the date of commencement of liquidation process. The liquidator, being a quasi-judicial authority, is empowered to admit or reject the claim, in whole or in part and such determination is subjected to appeal under the provisions embodied in Section 42 of the I&B Code. The appeal lies to the Adjudicating Authority i.e. NCLT.
In view of these statutory provisions, there is no difficulty in holding that the Appellant would not be precluded from filing its claim before the liquidator. The impugned order cannot be construed to curtail or prejudicially affect this statutory right. In fact, the Adjudicating Authority itself has observed that the Appellant would be entitled to lodge his claim before the Competent Court/ Authority.
The impugned order need not be interfered with, which does not suffer from any legal infirmity - this appeal is disposed off in the light of foregoing observations giving liberty to the Appellant to approach the liquidator with its claim within one week from today.
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2021 (2) TMI 1344
Application for revival of Corporate Insolvency Resolution Process (CIRP) rejected - CIRP stands terminated and Moratorium withdrawn - HELD THAT:- A settlement was arrived at between the parties, in pursuance whereof the Appellants received some post dated cheques. It appears that it was at the instance of the parties that CIRP was sought to be terminated.
The Adjudicating Authority banking upon the judgment of the Hon’ble Apex Court in Swiss Ribbons Pvt. Ltd. & Anr. V. Union of India & Ors. [2019 (1) TMI 1508 - SUPREME COURT] allowed the Appellants- Financial Creditors to withdraw the application and terminated the CIRP. It further emerges from the order that neither the settlement terms were filed nor the same were brought on record and incorporated in the order of the Adjudicating Authority with liberty to revive/ restore the CIRP in the event of the Corporate Debtor not adhering to the terms of the settlement or post dated cheques issued to Appellants being dishonored.
In view of this position, it cannot be said that the Settlement Terms not incorporated in the order of the Adjudicating Authority assumed the character of the decree of the Court, breach whereof would entitle the Appellants- Financial Creditors to come back and seek restoration/ revival of CIRP.
There are no legal infirmity in the impugned order - the appeal being devoid of any merit, cannot be allowed - appeal dismissed.
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2021 (2) TMI 1306
Seeking impleadment of applicant to the present company petition - Order I, Rule 10(2) of the Code of Civil Procedure - HELD THAT:- Present petition is filed by the company along with members/directors of petitioner No. 1-company, which generally is not the case. Thus the interest of all members will be taken care of, albeit without being joined in the proceedings. If the arguments of the applicant are accepted that he has qualified to be impleaded as a party in proceedings under Section 241-242 of the Companies Act, 2013, merely because he is a member of the company as described under Section 2(55) of the Companies Act, 2013, then every member may need or file such application, at any stage of the proceedings and the main petition may not see the light of the day ever.
There is not even a whisper about any instance/incident/any document to show that non-joinder of the present applicant will prejudice the rights of the proposed petitioner or will prejudice the adjudication of the petition. The petition is filed in the year 2016 whereas the impleadment is filed in 2020 (though not barred) specially when applicant claims that his membership and/or directorship are of 2007-08 and after rounds of litigations are upheld in year 2014. So at the time of filing of present petition in 2016, the same could have been considered to make present applicant as a party or not.
There are no merits in the application - application dismissed.
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2021 (2) TMI 1290
Reversal of CIRP - Degree of completion of construction work - HELD THAT:- It emerges from the Proposed Settlement Plan that the construction work had been awarded to M/s Era Infra Engineering Limited for completion of Phase-I of the project comprising of Tower 1 to 12. But the contract stood terminated and Indsao Infratech was engaged as the new contractor in January, 2016 to complete the construction work. 70% of the construction work is stated to have been completed. As regards the main grievance of the Homebuyers of the Project viz. ‘Orion Galaxy’ i.e. restart of construction work and its completion besides payment of dues of DGTCP and others, a revival plan has been offered covering page 13 to 15 of the Proposed Settlement Plan.
Let the Appellant/Promoter file a revised settlement plan removing this ambiguity and elucidating the factual position in this regard and also explaining how it proposed to generate/ arrange funds for completion of the project within a definite timeframe, it being gathered from the Report filed by the Interim Resolution Professional that the Promoter has agreed to infuse a sum of Rs.5 Crore which by no means can be said to be an adequate amount to either start or complete the project. Let the Revised Proposed Settlement Plan be filed by the Appellant/ Promoter within two weeks.
List the appeal ‘for hearing’ on 16th March, 2021 at 12:00 Noon.
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2021 (2) TMI 1286
Preferential and undervalued as well as fraudulent transactions - whether the RP has adhered to sections 43 and 46 of the Code read with regulation 35A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for the Corporate Persons) Regulations, 2016 (CIRP Regulations)? - HELD THAT:- As per the said regulation, the RP has to form an opinion whether the Corporate Debtor has been subjected to preferential transaction on or before seventy-fifth day of the CIRP commencement date. Thereafter, on or before one hundred and fifteenth day of forming such opinion, the RP shall make a determination that the Corporate Debtor has been subjected to preferential transaction. Upon making such determination the RP shall make an application before the Adjudicating Authority on or before on hundred and thirty-fifth day.
In the present case, although the RP submits that he has formed his opinion and determined that the lease deed dated 30.11.2016 amounted to preferential and undervalued transaction, he has not apprised us of the timeline in which he did so; except for the fact that he pointed it out to the CoC on 06.02.2020. The present application was filed on 04.09.2020, which is after three hundred and thirty-three days from the date of initiation of CIRP. The CIRP Regulations envisage no role to the CoC in respect of determination to be arrived at in the case of avoidance transactions. It is a duty cast solely on the RP.
The reasons for not complying with the timeline as envisaged under regulation 35A of the CIRP Regulations by the RP are not satisfying, even if the reasons were to be accepted, these reasons, section 46 of the Code binds the hands from proceeding further inasmuch as we cannot look into transactions that were entered into during the period of two years preceding the date of commencement of CIRP. It is the RP’s own case that the lease deed was entered into between the Corporate Debtor and Respondent No. 6 and 7 on 30.11.2016 whereas the CIRP had commenced on 18.10.2019, which is way beyond the two years’ timeframe envisaged under section 46 of the Code. The RP is not expected to undertake any roving inquiry beyond the timeframe stipulated in the Code and the regulations.
The facts and circumstances of the present application do not inspire the confidence that it is maintainable ex facie. The application is first hit by regulation 35A of the CIRP Regulations and then by section 46 of the Code.
Application dismissed.
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2021 (2) TMI 1285
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - privity of contract or not - HELD THAT:- There are sufficient merit in the claims made by and on behalf of the alleged Corporate Debtor as these letters merely state that the payment due to the work done by the main contractor i.e., M/s FCIPL through the Operational Creditor would be made directly to the Operational Creditor. This is the real substance of these two letters. Further, this also requires various formalities to be completed before such payment could be released. It is also found that the direct payments were to be made for the works to be executed w.e.f. 10.09.2014 only and this arrangement has been made to complete the balance pending work.
The main contractor has not raised the bills for the alleged outstanding amount as well as retention money nor any claim till then had been filed before the RP of FCIPL who was undergoing CIRP. Also the reply to notice of demand issued under Section 8 of IBC, 2016, alleged Corporate Debtor has clarified its stand and opposed the demand so raised.
In the absence of privity of contract and non- compliances of the submission of invoices/bills by the main contractor along with necessary back up documents required as per the contractual provisions, the said letters of assurance do not result into a cause of action against the alleged Corporate Debtor - the Corporate Debtor is Public Sector Undertaking (PSU), hence, instead of pursuing its claim with the main contractor, the Operational Creditor has chosen to file this application.
Petition dismissed.
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2021 (2) TMI 1281
Appointment of Liquidator - IRP not submitted the consent - COC also not constituted - HELD THAT:- A bare perusal of the provision shows that in terms of Section 34 (1) whenever a Liquidation order is passed under Section 33 of IBC, then the Resolution Professional appointed for the CIRP shall act as the liquidator for the purposes of liquidation unless replaced by the Adjudicating Authority under sub-section (4) of Section 34 of IBC 2016. His appointment is subject to condition that the Resolution Professional is required to submit a written consent for his appointment as Liquidator.
Here in the case in hand, the IRP has not submitted the consent even in this matter no CoC was constituted and this fact was considered while passing the order of liquidation on 25th January, 2022 and the matter was listed to appoint the Liquidator on 31.01.2022, but the erstwhile IRP declined to act as Liquidator - As it is seen that neither the CoC was constituted nor there is other claimant, therefore, in the peculiar facts and circumstances of the case in hand, it is deemed proper to exercise the powers under Rule 11 of NCLT Rules - application disposed off.
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2021 (2) TMI 1280
Permission for withdrawal of appeal - HELD THAT:- Leave is sought to withdraw the appeals reserving the right to pursue appropriate remedies with regard to other grievances, if any.
Civil Appeals stand dismissed as withdrawn.
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2021 (2) TMI 1277
Seeking withdrawal of application under Section 12A of the Insolvency and Bankruptcy Code 2016 - preferential transaction within the prohibition contained in Section 43 or not - HELD THAT:- Reliance placed on Rule 8 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016, under which the adjudicating authority may permit withdrawal of an application on a request made by the applicant before its admission. Consequently, it has been urged that the private settlement which was entered into between the first and second respondents is contrary to the express provisions of the IBC and may even amount to a preferential transaction within the prohibition contained in Section 43.
The impugned judgment and order of the NCLAT shall remain stayed - Issue notice, returnable in three weeks.
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2021 (2) TMI 1268
Seeking to direct the Liquidator to accept the claim submitted by the Applicant and treat the Applicant as a secured financial creditor - rights and privileges of a secured financial creditor under the Insolvency and Bankruptcy Code, 2016 - reconstitution of SCC within 7 days from the date of disposal of this Application - HELD THAT:- The object of the Code is to see that the CIRP Process/Liquidation process is to be continued in a time-bound manner as prescribed in the Provisions of the Code and Rules made there under. The CIRP and the Liquidation process, if not completed within the stipulated period, the object of the Code will be defeated. The contention of the learned Senior Counsel for the Applicant that the Applicant can avail opportunity with reference to Public Notification issued by Liquidator, even though its claim was rejected during CIRP by IRP/RP, is not correct and not tenable. While it is true that all claimants, which include claimants during CIRP, have to make/reiterate their claim again to Liquidator, but old claimants will reiterate their claim made earlier in CIRP, and fresh claimants, who have not availed opportunity during CIRP, can make their claim - the Liquidator cannot ignore the decisions taken by IRP/RP and reverse them except any new development takes place in such claims. Moreover, there cannot be two claims in respect of same debt.
It is not in dispute that RP, as early as on 3rd March, 2020 replied to the Applicant stating that its claim has been updated on the website of the Corporate Debtor and stand rejected. Since the Liquidator has accepted the claims of Allottee in question, the Applicant cannot ask to replace them, that too without impleading those allottees in the instant Application. The Respondent has considered the case of Applicant and rejected its case with cogent reasons and thus the impugned rejection cannot be found fault with. The Applicant, admittedly has right against the allottees in question to proceed basing on various documents executed between the parties - the Applicant failed to make out any case so as to interfere in the impugned action of Respondent.
Application dismissed.
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2021 (2) TMI 1266
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- The procedure in relation to the Initiation of Corporate Insolvency Resolution Process by the Financial Creditor is delineated under Section 7 of the Code, wherein only Financial Creditor / Financial Creditors can file an application. As per Section 7(1) of the Code, an application could be maintained by a Financial Creditor either by itself or jointly with other Financial Creditors - the expressions Financial Creditor and Financial debt have been defined in Section 5(7) and 5(8) of the Code and precisely Financial debt is a debt along with interest, if any, which is disbursed against the consideration for time value of money.
NPA was declared on 05.04.2008. Consequently, applicant bank has initiated action against the corporate debtor under the provisions of SARFAESI Act, 2002 as well as under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 on 19/10/2015 and case is registered as OA no. 461/2015 and on 02/07/2019 DRT passed the order and directed to pay the amount within 30 days from the date of order and on the basis of that petitioner claimed the date of default is on 02/08/2019 - action taken under SARFAESI Act cannot be counted for the period of exclusion u/s 14 of the limitation Act and since NPA was declared on 05/04/2008, therefore, the date of default is date of NPA. And if we shall calculate the period of limitation from 05/04/2008, i.e date of NPA then the present application is filed in the year 2019, much after the period of limitation prescribed under Article 137 of Limitation Act, i.e, three years when right to apply accrue. Hence the present petition is barred by limitation.
Application is dismissed as barred by limitation.
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2021 (2) TMI 1260
Seeking for Voluntary liquidation - section 59 of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- As per the submissions made by the counsel appearing for the applicant and the documents placed on record it appears that the affairs of the company have been completely wound up and there are no assets in the company as on date - Considering the facts and circumstances and the submissions and reports filed by the Liquidator, the Company deserves to be dissolved.
Application allowed.
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2021 (2) TMI 1256
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - attachment by way of auctioning the said immovable property for the purpose of monetizing its outstandings of property tax - IBC proceedings are independent and have overriding effect or not - HELD THAT:- This Court finds no reason to agree with the stand taken by the appellants/ the KMC. Apropo the first proposition advanced on behalf of the appellants that the Hon’ble Single Bench in [2021 (3) TMI 430 - CALCUTTA HIGH COURT] had observed on the want or lack of jurisdiction of the NCLT, Kolkata Bench apropo its order impugned dated December 17, 2019, this Court finds that the observations of the Hon’ble Single Bench of its Judgement and Order dated 29th January 2021 [2021 (3) TMI 430 - CALCUTTA HIGH COURT] were only in the nature of a reiteration of the by now well-established legal proposition that the writ Court can only interfere when an inferior Tribunal or authority exercises a jurisdiction which it does not possess.
This Court finds the legal position unassailable that the property dues of KMC carry a statutory flavour and therefore being in the nature of crown debts also do not take precedence over the dues of other classes of secured creditors - application dismissed.
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2021 (2) TMI 1251
Maintainability of appeal - requirement of pre-deposit - permission to respondents No. 1 and 2 herein to prosecute the appeal before the Debts Recovery Appellate Tribunal (DRAT) without predeposit of a portion of the debt determined to be due - validity of this order of High Court of Delhi - HELD THAT:- On perusal of Section 21 of the RDBA, which employs the phrase “appeal shall not be entertained” indicates that it injuncts the Appellate Tribunal from entertaining an appeal by a person from whom the amount of debt is due to the Bank, unless such person has deposited with the Appellate Tribunal, fifty percent of the amount of debt so due from him as determined by the Tribunal under Section 19 of the Act. The proviso to the said Section, however, grants the discretion to the Appellate Tribunal to reduce the amount to be deposited, for reasons to be recorded in writing, but such reduction shall not be less than twenty-five per cent of the amount of such debt which is due. Hence the pendulum of discretion to waive pre-deposit is allowed to swing between fifty per cent and twenty-five per cent of the debt due and not below twenty-five per cent, much less not towards total waiver. It is in that background, keeping in perspective the said provision, the DRAT has in the instant case ordered deposit of fifty per cent of the amount.
A total waiver would be against the statutory provisions. However, in the instant case, taking note that though the issue relating to the actual amount due is to be considered by the DRAT, keeping in view the fact that the DRT has taken into consideration the earlier settlement and has accordingly decreed the claim to that extent and towards such decree since payment of a major portion is made, though by appropriation of the compensation amount and admittedly since the remaining properties belonging to respondent No.3 is available by way of mortgage and the respondents No.1 and 2 are the personal guarantors, it is deemed appropriate that in the peculiar facts and circumstances of this case to permit the predeposit of twentyfive per cent of the amount as taken note by the DRAT i.e. twenty five per cent of ₹ 68,18,92,841/-. To the said extent, the order dated 27.02.2019 passed by the DRAT on IA No.511 of 2018 is liable to be modified.
The order dated 27.02.2019 passed by the DRAT, Delhi is modified. The respondents No. 1 and 2 are permitted to deposit twenty-five per cent of ₹ 68,18,92,841/- and prosecute the Appeal No.311 of 2018, subject to such deposit being made within 8 weeks, failing which the appeal shall not subsist in the eye of law - appeal allowed in part.
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2021 (2) TMI 1241
Seeking inclusion of name of IRP in the order dated 12.02.2021 - HELD THAT:- As the said IA was not placed at the time of passing of the Order, the name of the IRP proposed in that IA was not mentioned in the Order dated 12.02.2021.
Mr. Anil Tayal appointed as IRP in place of. Ms. Sunita Umesh, whose name was mentioned as IRP in Order dated 12.02.2021 - application disposed off.
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2021 (2) TMI 1240
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The respondent has taken a defence of no prior agreement in writing and in para (d) of the reply, the respondent has taken a defence that the bills/invoices annexed with demand notice are not as per the agreed rates and the payment due has already been released but nowhere in the reply, the respondent has made what was the agreed rate and how the invoices raised by the applicant are not in terms of the agreed rates - the respondent has referred to certain bills and admitted that against these bills, the respondent had made the payments which shows that on the oral agreement, both the parties had acted upon. Therefore, the respondent at this stage cannot take a defence that there is no written agreement.
The respondent in its reply has admitted that against some of the bills, referred in para 13, the payment has been made. These bills are enclosed by the applicant at page 45, 46, 49, 50, 65, 66, 53 and 54 and on perusal of these bills, we further notice that while making the payments of these bills, the respondent has not raised any dispute regarding the rate. Therefore, for the first time, the respondent has raised the dispute of rate.
It has been established by the Operational Creditor that the application is complete, there is no payment of unpaid operational debt, the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor, and though the reply has been received but it appears from the reply that no dispute in terms of Section 5(6) of the IBC has been raised by the respondent within 10 days from the receipt of demand notice and there is no record of dispute in the information utility.
Application allowed - moratorium declared.
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2021 (2) TMI 1235
Maintainability of application - initiation of CIRP - Coporate Debtor failed to make repayment of its dues - financial creditors - financial debt or not - default as alleged, was below the threshold limit of ₹ 1 Crore notified in terms of Notification dated 24th March, 2020 or not - revocation of shares allotted to Appellant whereas the time value of money does not apply to the revocation of shares - HELD THAT:- Let learned counsel for the Respondents file their reply affidavits along with vakalatnamas within two weeks. Rejoinder thereto, if any, may be filed by the Appellant within two weeks thereof. Short written submissions, not exceeding three pages, supported by compilation of relevant judgments may also be filed along with the pleadings.
Post the matter ‘for admission (after notice)’ on 26th March, 2021.
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2021 (2) TMI 1233
Seeking to submit the revised Resolution Plan before CoC for legal consideration and on merits - HELD THAT:- The order of this Bench is required, to take any further step in the process. She further added that though the plan was not put before CoC meeting but oral opinion was taken from CoC members and the CoC is of the view that after the order of this Bench, the same can be considered. The Resolution is the prime purpose of the Code.
CoC is directed to consider the revised plan submitted by the present Applicant for consideration - application allowed.
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