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TMI Blog2024 (3) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mr. Vinit Trehan, Ms. Bhavya Jain, Advocates for R4. JUDGMENT ASHOK BHUSHAN, J. Interlocutory Application Nos. 4551 and 4554 of 2023 These IAs have been filed by the Appellant(s) for condonation of delay of 13 and 6 days in filing of the Appeal. Sufficient cause being shown by the Appellant(s), the delay in filing of the present Appeal(s) are hereby condoned. I.A. Nos.4551 and 4554 of 2023 are disposed of. Company Appeal (AT) (Insolvency) Nos. 1286 and 1287 of 2023 These two Appeals have been filed by the same Appellant, arising out of Corporate Insolvency Resolution Process ("CIRP") of the Corporate Debtor Sivana Reality Pvt. Ltd. Company Appeal (AT) (Insolvency) No. 1286 of 2023 has been filed against the order dated 19.07.2023 passed in IA No.368 of 2022 filed by the Appellant objecting to the Resolution Plan submitted by M/s Kabra Estate and Investment Consultants (Successful Resolution Applicant ["SRA"]). Company Appeal (AT) (Insolvency) No. 1287 of 2023 has been filed against the order dated 19.07.2023 passed by Adjudicating Authority in IA No.2981 of 2021, by which order, Application filed by Resolution Professional ("RP") for approval of Resolution Plan submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CoC Meeting was held on 03.08.2021 wherein it was resolved that IA No.643 of 2021 be withdrawn. It was also resolved to rescind the previous From-G and issue a fresh advertisement for holistic resolution of the Corporate Debtor. On 08.08.2021, fresh Form-G was published, inviting EOI for consolidation of Phase-1 and Phase-2 of the Corporate Debtor. Last date of submission of Resolution Plan was 27.09.2021. (vi) Kabra Estate & Investment Consultants submitted EOI on 17.08.2021. EMD of Rs.2 Crores was deposited on 27.09.2021. The CoC on 30.10.2021 in the 18th Meeting approved the Resolution Plan with 99.96% of the total voting shares. IA No.2675 of 2021 was filed by RP for withdrawal of IA No.643 of 2021. (vii) On 09.02.2022, the Appellant filed an IA No.368 of 2022 challenging the Resolution Plan. (viii) On 04.01.2023, the Adjudicating Authority disposed of IA No.643 of 2021 as infructuous. (ix) The Adjudicating Authority vide order dated 19.07.2023 dismissed IA No.368 of 2022 and by order of the same date approved the Resolution Plan of M/s Kabra Estate and Investment Consultants. Challenging these two orders dated 19.07.2022, these two Appeals have been filed by the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e affected parties in lieu of the amounts received from those homebuyers, although the area of the allotment was reduced accordingly. This Tribunal vide order dated 02.11.2023 has upheld the classification as 'affected' and 'unaffected' homebuyers and has upheld the Resolution Plan as well as the order dated 19.07.2023 of the Adjudicating Authority approving the Resolution Plan. 6. The learned Counsel for the Appellant challenging the impugned order submits that although now the Appellant is not raising issue regarding challenge to classification of homebuyers as 'affected homebuyers' and 'unaffected homebuyers', but there are other issues in these Appeal, which need consideration. The learned Counsel for the Appellant submits that although subsequent to registered Agreement dated 09.08.2018, there was no NOC obtained from LICHFL, but the amount was advanced by the Appellant in the year 2015, i.e., much before the Facility Agreement was executed between the Corporate Debtor and the LICHFL, i.e., 15.09.2017. The Agreement dated 09.08.2018 being in reference to the earlier Agreement dated 10.07.2015, the requirement of obtaining NOC from LICHFL was not there. It is further submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Resolution Plan, which classification having been upheld, the Appellant cannot be allowed to challenge the Resolution Plan. It is further submitted that the Resolution Plan having been approved by 99.96% vote shares of the CoC, the Appellant is only a minority homebuyers, who is now seeking to challenge the Resolution Plan, whereas in view of the judgment of the Hon'ble Supreme Court in Jaypee Kensington Boulevard Apartments Welfare Association & Ors. Versus NBCC (India) Ltd. & Ors., (2022) 1 SCC 401, a minority or single homebuyer has to sail along with the majority in the interest of the Scheme of the Code. It is submitted that homebuyers having also approved the Resolution Plan, the Appellant cannot be allowed to challenge the Resolution Plan. It is further submitted that the argument of the Appellant that there being approval of Resolution Plan of Phase-1, and Application being IA No.643 of 2021 being pending for approval, the CoC could not have taken a decision to withdraw the approval of Resolution Plan, hence, all other subsequent steps are vitiated, is wholly erroneous and incorrect. It is submitted that the Appellant himself has voted for withdrawal of the Resolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When we look into the Agreement dated 09.08.2018, the Agreement although refers to several earlier events and proceedings prior to 09.08.2018, but it does not refer to Agreement dated 10.07.2015. Agreement dated 09.08.2018 having been executed subsequent to 15.09.2017, on which date the Corporate Debtor obtained loan from LICHFL, which obliged the Corporate Debtor to make an allotment only after the NOC from the LICHFL. The requirement of obtaining NOC was very much there and it is not the case of the Appellant that for allotment dated 09.08.2018, any NOC was obtained from LICHFL by the Appellant. Thus, categorization of the Appellant as 'affected' homebuyer cannot be faulted. In this context, we may refer to the judgment of this Tribunal, where challenge to the categorization of homebuyers into 'affected' and 'unaffected' homebuyers was noted and considered. Issue No.4 was framed by this Tribunal in Company Appeal (AT) (Insolvency) No.1162 of 2023, which Issue No.4 was answered in paragraph 23 to 27, which are as follows : "23. We, thus, are of the view that different treatment of two sets of homebuyers in view of the allotment to the homebuyer with/without NOC of the Mortgagee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the view that ends of justice be served in disposing of this appeal in directing that the amount of Rs.32,78,102/- be distributed to all the four Operational Creditors so as to save the plan from being invalidated. We, thus, are of the view that the Adjudicating Authority having found that there is discrimination in payment of Operational Creditors could have directed for compliance of provision of the Code by distribution of Rs.32,78,102/- without affecting the other terms and conditions of the plan. By this modification the plan shall be able to sail and implemented , which is approved by CoC with 99.84% vote share. The plan need to be implemented with modification as directed above." 24. The above judgment does not help the Appellant in the present case since in the above case the question was distribution of amount under the Resolution Plan to the Operational Creditors inter se and this Tribunal directed payment of amount to the Operational Creditors in the same proportion to uphold the Resolution Plan. The present is not a case of distribution of any amount rather Resolution Plan provides for ways and manner to complete the project and handover units to the allottee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n met, it is the commercial wisdom of the requisite majority of the Committee of Creditors which is to negotiate and accept a resolution plan, which may involve differential payment to different classes of creditors, together with negotiating with a prospective resolution applicant for better or different terms which may also involve differences in distribution of amounts between different classes of creditors." 26. What was emphasised in the judgment is that there shall be fair and equitable treatment in dealing dues of Operational Creditors and further there can be difference in payment to the Financial Creditor and the Operational Creditors. Hon'ble Supreme Court in the said judgment has held that commercial wisdom of the Committee of Creditors cannot be substituted. In Para 144 and 147 following has been held: "144. What is important to note is that when one reads the abovementioned judgment, it is a majority of 66% of the Committee of Creditors who has exercised the discretion vested in it under the Code in this particular manner, which has then correctly not been disturbed by the NCLT and NCLAT. Far from helping Shri Sibal's client, the principle that is applied in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p seeking permission to participate in the EOI, which was placed before the CoC on 09.06.2021. The CoC passed the resolution to allow Kabra Group to submit their EOI. Thus, EOI was considered by the CoC. The subsequent events as noticed above indicate that IA No.643 of 2021, which was filed for approval of Resolution Plan of Vira Realspace LLP for Phase-1 was decided to be withdrawn by the CoC in its Meeting on 03.08.2021 and it was further resolved by CoC to rescind the previous From-G and issue a fresh advertisement for holistic resolution of the Corporate Debtor. Subsequently, on 08.08.2021 fresh Form-G was published, where, the last date for submitting of EOI was 23.08.2021. Respondent No.5 has submitted EOI on 17.08.2021 and thereafter submitted a Resolution Plan, which was deliberated and approved by the CoC. The submission advanced by the Appellant with regard to EOI submitted against Form-G, which was subsequently rescinded by the CoC is no more relevant. Furthermore, the impugned order dated 19.07.2023 approving the Resolution Plan, which was submitted consequent to Form- G issued on 08.08.2021, the submission that Respondent No.5 was given back door entry is wholly miscon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the Appellant. 15. The next submission of learned Counsel for the Appellant that there was no due diligence with regard to Section 29A while approving the Resolution Plan of SRA. The learned Counsel for the Respondents submit that an affidavit in compliance of Section 29A was submitted by SRA along with EOI, wherein it was stated Section 29A eligibility analysis of the SRA as well as the connected entities has been carried out and a report was submitted on 26.08.2021 certifying the eligibility of SRA under Section 29A. The Plan of SRA was deliberated and approved by the CoC. It is further relevant to notice that in IA No.368 of 2022, which was filed by the Appellant before the Adjudicating Authority, objecting to the Resolution Plan, the main challenge in the IA was on the ground of treating the Appellant as 'affected' homebuyer. The Adjudicating Authority in the impugned order while deciding IA No.368 of 2022 has noted the submissions of the Appellant, where in paragraph 18 to 21, the objections of the Appellant were noted, which are as follows: "18. The Applicant has submitted that the Corporate Debtor was responsible to obtain NOC from the lender-LICHFL and the Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Buyers can vote for or against the Plan only as a class and if there are some Home Buyers pitted against the Resolution Plan, who are otherwise in minority, absolutely no locus to oppose the Plan in the capacity of dissatisfied or dissenting Home Buyers. It is also abundantly clear that such dissenting minority segment within the class of Home Buyers cannot arrogate themselves to be dissenting Financial Creditors. That being the legal position, which is explained in unequivocal terms by the Hon'ble Supreme Court in Jaypee Kensington s case (supra), in our considered view, any objection raised by the so-called minority Home Buyers raising objection against the Plan, which have been approved by them as a class, cannot be entertained and are liable to be rejected at the very threshold without going through the merit of such objections. Therefore, the objections raised in the IA are liable to be dismissed as the Applicant has no locus to maintain any such objections against the Resolution Plan." 17. We may also notice the submission of the Respondents that Resolution Plan having been approved by 99.96% vote share of the CoC, which also included homebuyers, both 'affected' and 'u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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