TMI Blog2019 (8) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... ackground the Allottees Association preferred the application before the Adjudicating Authority (National Company Law Tribunal), Allahabad Bench on 17th September, 2018 to decide such issue. The two Hon ble Members of NCLT differed on the principle on 13th December, 2018 as noticed above and referred the matter to the Principal Bench for placing the matter before Third Hon ble Member who has delivered its decision by the order dated 24th May, 2019. In the meantime, 270 days lapsed, if counted from the date the proceeding was remitted by the Hon ble Supreme Court, i.e. 6th May, 2019. The period from 17th September, 2018 i.e the date of application filed by the Association of the allottees for clarification for the order and till the final decision i.e. 4th June, 2019 i.e. the date the matter was finally decided by the Third Hon ble Member (Total 260 days), can be excluded for the purpose of counting the 270 days. However, as the matter is pending since long, we are not inclined to exclude the total period of 260 days and instead in the interest of the Allottees, we exclude 90 days for the purpose of counting the period of 270 days of Corporate Insolvency Resolution Process , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DBI Bank Limited which was admitted with respect to same Corporate Debtor . One Chitra Sharma moved before the Hon ble Supreme Court, in Chita Sharma Vs. Union of India wherein the Hon ble Supreme Court by its judgement reported in 2018 SCC OnLine SC 874 (decided on 9th August, 2018) passed the following order and directions 55 . We, accordingly, issue the following directions: (i) In exercise of the power vested in this Court under Article 142 of the Constitution, we direct that the initial period of 180 days for the conclusion of the CIRP in respect of JIL shall commence from the date of this order. If it becomes necessary to apply for a further extension of 90 days, we permit the NCLT to pass appropriate orders in accordance with the provisions of the IBC; (ii) We direct that a CoC shall be constituted afresh in accordance with the provisions of the Insolvency and Bankruptcy (Amendment) Ordinance, 2018, more particularly the amended definition of the expression financial creditors ; (iii) We permit the IRP to invite fresh expressions of interest for the submission of resolution plans by applicants, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t number of voting share in favour of the resolution has to be taken into consideration without looking into the threshold limit provided under various provisions of the I B Code, except for the purpose of withdrawal of the petition, the approval of the resolution plan, and liquidation i.e under Section 12A, 30(4) and 33(2) respectively, so that CIRP would continue for the time being in the meanwhile the Central Government may bring amendment to the relevant provisions of the I B Code and CIRP regulations prescribing the procedure to be followed in determining the voting share for passing various resolutions where CoC comprise of Real Estate Class of Creditors 50% or more and when there is dead lock in passing the resolutions, or else the CIRP which remained static continue to be the same not only in this case, but in the cases of similar nature where Real Estate/Home Buyers as a class that comprise majority percent voting share abstain from voting. Decision of Hon ble Member (Technical) iii) In the case on hand, even if all Banks and 17% of Home Buyers vote in favour of the Resolution Plan, it will still not sail through as it would not receive man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lahabad Bench by impugned order dated 6th May, 2019 asked the authorised representative of the Allottees and other learned counsel appearing on behalf of the Allottees to file respective replies with the following observation : It is further brought to our notice that the third Member of Single Bench of the NCLT is considering the issue of the voting threshold of Financial Creditors including (Home Buyers) which is still sub-judice before it and has not yet been decided. Therefore, we feel appropriate that it is need of the hour that COC and RP must be allowed to proceed further with the CIRP process in accordance with law for considering the Resolution Plan under consideration in respect of Corporate Debtor Company, which, however, shall be subject to outcome of pending IA. List the matter on 21st May, 2019. 9. The aforesaid order dated 6th May, 2019 has been challenged before this Appellate Tribunal by the IDBI Bank Limited in Company Appeal (AT)(Insolvency) No. 536 of 2019 . 10. When the matter was taken up, learned counsel appearing on behalf of all the parties requested to exclude the period during which the matter r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the interest of the Allottees. However, the issue has been left open for decision in an appropriate case, as the only argument is advanced with prayers to exclude the period aforesaid. 15. All the parties, including the 8 Associations of Allottees having more than 5000 Members, Resolution Professional , members of the Committee of Creditors requested to exclude the period, when the matter remained pending for decision before the Adjudicating Authority to decide the question as to how the voting share of the Allottees will be counted. 16. One individual buyer Mr. Hemant Kr. Singh, who claimed to be an authorised representative appeared in person without any petition and raised various allegations relating to default by the Interim Resolution Professional , Committee of Creditors etc. but he has not given any substantive suggestion. 17. Mr. Anupam Lal Das, learned Senior Advocate appeared and submitted that he intends to appear on behalf of Jaiprakash Associates Ltd. who is not a party to any of the appeal nor filed an application for intervention nor shown as to how Jaiprakash Associates Limited can raise any issue. A writte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency resolution process, such as removal. (iii) The period between the date of order of admission/moratorium is passed and the actual date on which the Resolution Professional takes charge for completing the corporate insolvency resolution process. (iv) On hearing a case, if order is reserved by the Adjudicating Authority or the Appellate Tribunal or the Hon ble Supreme Court and finally pass order enabling the Resolution Professional to complete the corporate insolvency resolution process. (v) If the corporate insolvency resolution process is set aside by the Appellate Tribunal or order of the Appellate Tribunal is reversed by the Hon ble Supreme Court and corporate insolvency resolution process is restored. (vi) Any other circumstances which justifies exclusion of certain period. However, after exclusion of the period, if further period is allowed the total number of days cannot exceed 270 days which is the maximum time limit prescribed under the Code. 20. Admittedly, no regulation was framed under the Insolvency and Bankruptcy Code as to how the voting share of thousands of Allottees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired after negotiations pass appropriate order under sub-section (5) of Section 30 of the I B Code preferably within a period of 45 days. Rest of the period of 45 days margin is given to remove any difficulty and appropriate order as may be passed by the Adjudicating Authority. The voting share of the allottees should be counted in terms of I B Code as existing on the date of voting/ Regulation and/or in accordance with majority decision of the Adjudicating Authority. 24. It is made clear that all the earlier resolution plan(s) including the plan submitted by the NBCC , cannot be considered, having been rejected by the Committee of Creditors . However, it will be open to the NBCC to file a fresh improved resolution plan. It is informed that Adani Infra (I) Ltd. also proposed to file resolution plan but we are not expressing any opinion with regard to the same. We have given opportunity to all the eligible persons to file expression of interest / (improved) resolution plan , individually or jointly or in concert with any person, but those who are ineligible in terms of Section 29A, are barred from filing such plan. No liberty is given t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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