TMI Blog2021 (12) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... on of law and particularly this fact that the CoC has already approved the resolution plan on 17.08.2021 - Application dismissed being not maintainable. - (IB) 2130 (ND)/2019 and IA/3458/2021 - - - Dated:- 22-11-2021 - Abni Ranjan Kumar Sinha, Member (J) And L.N. Gupta, Member (T) For the Appellant : Sudhir Makkar, Sr. Adv., Anando Mukhrejee and Shwetank Singh, Advs For the Respondents : Party-in-Person, Amit Singh Chadha, Sr. Adv., Gaurav Mitra, Nipun Gautam and Shriya Raychaudhuri, Advs ORDER Abni Ranjan Kumar Sinha, Member (J) 1. The present application is filed u/s. 60(5) of the Insolvency Bankruptcy Code, 2016, (hereinafter referred to as the Code ) seeking following directions: (i) Direct the Resolution Professional to not submit the Resolution Plan before the CoC as it is not compliant under Section 30(2) of the Code. (ii) Stay the process of voting to be held on 10.08.2021, on the two Resolution Plans as submitted before the Resolution Professional and placed before the CoC. (iii) Restrain the members of the Association from name calling or defaming the parties herein; (iv) Pass any other or further order(s) as may be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry high percentage of voting share. It is also stated that the same relaxations were mentioned in the evaluation criteria, enabling the Resolution Plan submitted by Association being successful resolution plan by default. vi. It is submitted that the applicants apprehend that due to these discriminatory clauses with respect to EMD and invitation for Resolution Plan, discouraged the other Prospective Resolution Applicants (PRA) as initially 5 PRAs submitted their expression of interest but only one has filed its resolution plan. vii. It is also submitted that the Association members are controlling CoC's proceedings as undue advantages were given to the Association in terms of scores for upfront cash infusion, time completion and qualitative analysis with regard to past experience and financial strength. It has been pointed out that the explanation for such scores were mentioned as the homebuyers have already contributed a major portion of the construction money and that further payment has to be made from dues which are owed by them to the Corporate Debtor, they would get these entitlements. viii. Further, it is stated that for the purpose of consideration of pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Registrar after perusing the said complaint, has issued a show cause notice dated 04.06.2021 to the Callidora Association seeking a reply. It is stated that entire internal process of approval for submitting the Resolution Plan is flawed, without any authority and contrary to the provisions of law. Further, since the show cause notice challenges the eligibility of the Association to submit the Resolution Plan, the same ought to be resolved first, before the Resolution Professional/Coe puts the said Resolution Plan to vote. Further, it is submitted that Clause 4.15 of the RFRP clearly states that a Resolution Plan would be considered non-responsive if: a) The Resolution Plans are incomplete i.e. not accompanied by any of the applicable forms, authorizations and documents as specified in the RFRP or failure to provide necessary or sufficient information in the RFRP- it is submitted that non submission of dues of the members of the Association is a material defect in the Resolution plan and the same would cause it to be non-responsive as per the terms of the RFRP. b) The Resolution Plan submitted by the Resolution Applicant is conditional in nature. The paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent application is not maintainable under Section under Section 60(5) of the Code. It is further submitted that the Applicants have no locus to file such application in their individual capacity and also have failed to make out any case. ii. It is further submitted that the Applicants are two home buyers, out of a total of approximately 1500 home buyers in the Corporate Debtor. The total claims of the home buyers against the Corporate Debtor amounts to ₹ 1110.20 Crore as against the admitted claims of the Applicants is of merely ₹ 1.67 crore, carrying a voting percentage of 0.14% only in the Committee of Creditor. iii. It is stated that two home buyers, out of a class of approximately 1500 homebuyers cannot raise objections as regards the Eligibility criteria, requirement for submission of EMD and Performance Security, when the home buyers as a class have themselves voted and approved such requirements through their Authorised Representative. Reliance has been placed upon the judgement of Hon'ble Supreme Court in the matter of Jaypee Kensington Boulevard Apartments Welfare Association and Ors. v. NBCC (India) Ltd. and Ors., in which; it was clearly held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with the Resolution Plan. It has been pointed out that the Applicants forming part of the class of home buyers also voted against the inclusion of RA 1 RA 3 Resolution Plan. Accordingly, RA 1 RA 3 were disqualified to participate in the process by virtue of non-submission of EMD. Copy of the voting summary of the 10th CoC held on 07.03.2021 has been placed on record at page 346 of the synopsis. ix. It is further submitted by the Applicant that one of the consortium members of the Resolution Applicant Consortium of three Associations, namely, Callidora Association, does not hold proper authorization to submit the Resolution Plan. It is submitted that the RP has duly verified the minutes of meetings of the Associations, where the authorization to submit the plan has been obtained. It is further submitted that the RP has obtained affidavit from the officers of Callidora Association in this regard. Copy of Authorisation letter and resolution along with affidavits of the Office bearers have been placed on record at page 378 of the synopsis. 8. The respondent has submitted that the Resolution Plan of the Consortium of three Associations has been approved by the CoC thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without meeting the EMD and Performance Deposit Criteria, is allowed to ride pillion on the plan submitted by the Consortium. 13. On the point of main ability, the applicants have relied upon judgements passed by Hon'ble NCLAT in the matter of C.A. (AT)(Ins) No. 233 of 2021 Dwarkadhish Sakhar karkhana Ltd. v. Pankaj Joshi Anr. and in the matter of C.A. No. 9241 of 2019 Gujarat Urja Vikas Nigam Ltd. v. Mr. Amit Gupta. 14. It is submitted by the applicants that the Judgment of Hon'ble Supreme Court in Jaypee Kensington Boulevard apartment (supra) is not applicable to the present case as the bar for the Homebuyer to approach this tribunal arises after completion of the voting on the Resolution plan. 15. We have heard Ld. Counsel for the applicant as well as respondent/resolution professional and perused the averments made in the application and written submissions filed by the respective parties. 16. Ld. Counsel for the applicant has raised all the facts and laws mentioned in his written submissions. Therefore, there is no need to repeat the same. 17. Ld. Counsel for the respondent/resolution professional has also raised all the facts and law mentioned in his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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