TMI Blog2021 (6) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal should not dispose of the present Application as in the said Applications the very constitution of the CoC having their voting share presently as disclosed by the IRP is sought to be challenged as the mode of computing the claim in relation to the Homebuyers as well as their proportionate voting share is being questioned. Repeatedly the Hon'ble Supreme Court has held that the commercial decision taken by the CoC brooks no interference by this Adjudicating Authority. Be it in the case of approval of the resolution plan or in the case of liquidation of the Corporate Debtor - Similarly, it is also required to be noted as correctly pointed out by the Ld. Counsel for the Applicant that the Hon'ble NCLAT has held in numerous decisions as rendered by it and as cited before this Tribunal that replacement of IRP to RP either under Section 22 and in relation to also Section 27 of IBC, 2016 does not call for the interference of this Adjudicating Authority and further that no reason is also required to be ascribed for such a change. Keeping in mind the decision of the CoC being a commercial decision made by more than 66% of the Homebuyers constituting the CoC having the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 being the 5th meeting of the CoC and that in the said meeting 68.87% of the members of the CoC have confirmed the appointment of the proposed RP as the RP in relation to the Corporate Debtor. 4. In relation to the Respondents impleaded in the Application, it is averred in the Application that the present IRP namely, Mr. Pawan Kumar Singal who has not been confirmed as the RP and sought to be replaced has been made as R1 and that IBBI has been made as R2, in view of the application filed by IBBI dated 22.04.2021 before this Adjudicating Authority for the replacement of the said IRP namely, R1 on account of multifarious violations of the IBC in the sister corporate insolvency process of Piyush IT Solution Pvt. Ltd. in CP(IB)/876(ND)/2020. The IRP being the IRP for the said company as well and that the Corporate Debtor is responsible for the construction for the real estate project of Lotus Arena. It is further averred that R2 has been made the proforma Respondent in the array in the Application. 5. Perusal of the Application also brings out the fact that the CIRP of the Corporate Debtor was initiated on 29.10.2020. 6. In relation to the Application filed by IBBI being pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the IBC, 2016 the relief as sought for may it is submitted may be granted. 8. No reply seems to have been filed by R1, however, in relation to R2 - IBBI at the time of hearing it was represented by its Counsel who placed reliance in the earlier Application which has been filed by IBBI on 22.04.2021 under the circumstances narrated in the paragraph supra of the present order seeking for replacement of the IRP at present with another RP. 9. It was also expressed by the Counsel for R2 that in relation to the proposed RP, the IBBI does not have any objection in him being appointed as the RP. 10. Before going any further in relation to the instant order it is required to be noted that as per the composition of the CoC of the Corporate Debtor, as evident from e-voting details which has been provided by the IRP who is proposed to be replaced at page nos. 82 to 84 therefrom and it is evident from a perusal of the typed set filed along with the Application at page No. 082 to 084 in this regard being Annexure-A8. 11. Perusal of the tabulation at page No. 084 discloses that the following voting share in respect of each of the Financial Creditors is evident namely, Punjab Nationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 22 of IBC, 2016 where under Section 22(3) it is the CoC as a collective which is required to file the Application and not by a member of the CoC being a Financial Creditor enabling him to file the Application. This plea is taken as a preliminary objection to the maintainability of the Application itself. 17. However, in relation to the arguments put forth by the Ld. Senior Counsel Mr. Ganda, we are unable to be convinced for the reason that from the resolution as extracted above as certified to be passed in the 5th CoC meeting of the Corporate Debtor dated 04.05.2021 by R1 IRP itself it is evident that any Financial Creditor has been given an opportunity to move the Application before this Tribunal. Since the CoC has taken a conscious view taking into consideration the prevalent facts and circumstances as it was being confronted with, the CoC has applied its mind by passing the resolution, pursuant to which the Application has been filed, it should be noted by the member of the CoC and not outside of it. 18. In this regard, even though an objection was sought to be raised by the Ld. Senior Counsel Mr. Ganda as well as by the Counsel for Punjab National ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in disposing of the instant Application seeking for replacement of IRP to RP as resolved by the members of the CoC having requisite voting share on the given date namely, 04.05.2021 and since the CIRP is required to be a seamless procedure in light of the provisions of IBC and in this regard it is to be observed that if there is any change in the constitution of the CoC in view of any change in the computation of the claim the same shall take effect only prospectively and will not affect the decisions of the CoC taken in the past in relation to the CIRP of the Corporate Debtor taking into consideration Regulation 12 and Regulation 14 of the regulations framed by IBBI in this regard for CIRP of a Corporate Debtor. 23. Taking into consideration the above facts and circumstances of the case and also keeping in mind the decision of the CoC being a commercial decision made by more than 66% of the Homebuyers constituting the CoC having their voting share on the given date, namely 04.05.2020, this Tribunal is required to perforce allow this Application. As a consequence of allowing this Application taking into consideration Section 22(4) of IBC, 2016 the name as recommended by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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