TMI Blog2024 (3) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... C 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 - there is no error committed by the SRA in classifying the Appellant into affected homebuyer as his allotment dated 09.08.2018, having been obtained without NOC of LICHFL. Back door entry in the CIRP - HELD THAT:- 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IA No.643 of 2021, which was filed for approval of Resolution Plan of Vira Realspace LLP for Phase-1 was decided to be withdrawn by the CoC in its Meeting on 03.08.2021 and it was further resolved by CoC to rescind the previous From-G and issue a fresh advertisement for holistic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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted homebuyers, 86 have voted in favour of the Plan and only 26 have voted against the Plan. Thus, majority of homebuyers have voted in favour of the approval of the Resolution Plan. Hence, the Appellant cannot be heard to contend against the majority of homebuyers, who have decided to approve the Resolution Plan. The submission of the Appellant that RP conducted the CIRP in contravention of the Code and CIRP Regulations also does not find any substance from the materials on record and proceedings undertaken by the RP - there are no material irregularity in conducting the CIRP by the RP, which warrant interference. There are no ground to interfere with the impugned orders dated 19.07.2023, which are sought to be challenged in these two Appeals - appeal dismissed. - [ Justice Ashok Bhushan ] Chairperson And [ Mr. Barun Mitra ] Member ( Technical ) For the Appellant: Mr. Yogesh Jagia, Mr. Harshit Ratra, Advocates. For the Respondents : Mr. Abhijeet Sinha, Sr. Advocate with Mr. Dhaval Despande, Mr. Amir Arsiwala, Nupur Shaha, Advocates for R-1. Mr. Arun Kathpalia, Sr. Advocate with Mr. Kunal Tandon, Mr. Visheshkalra/ Vishal Kalra, Mr. Atishay Jain, Ms. Tanushree Sogani, Advocates fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of the Corporate Debtor. (iii) Registered Agreement dated 09.08.2018 entered between the Corporate Debtor and the Appellant for sale of Flat Nos.D-103, D-104, D-201, D-202, D-203 and D-204 in D wing in Samriddhi Garden. (iv) On 11.08.2020, Company Petition No.3169 of 2019 was admitted against the Corporate Debtor. Respondent No.1 was appointed as RP. The Form-G was published on 02.12.2020. A Resolution Plan with regard to Phase-1 Project of the Corporate Debtor was approved on 01.03.2021, which was submitted by one Vira Realspace LLP. On 17.03.2021, an IA No.643 of 2021 was filed by RP for approval of Resolution Plan of Phase-1. On 20.03.2021, Form-G was published in supersession of previous advertisement to invite prospective Resolution Applicants only for Phase-2. (v) On 09.06.2021, RP apprised the Committee of Creditors ( CoC ) regarding the receipt of email from Kabra Group seeking permission to participate in the EOI process and for condoning the delay in submission of EOI. On 09.06.2021, the CoC resolved to allow Kabra Group to submit their EOI. On 12.07.2021, the Adjudicating Authority passed an order directing the RP to resolve pertaining to Phase-1 Resolution Plan by c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court by order dated 25.01.2024. 5. In the Appeals, which were filed by Sabari Realty Pvt. Ltd., one of the ground raised in the Appeal was that Resolution Plan has classified the homebuyers into two categories, i.e. affected homebuyers and unaffected homebuyers . Unaffected homebuyers were those homebuyers who have been allotted the units after obtaining No Objection Certificate ( NOC ) from LIC Housing Finance Ltd., who has charge over the Project and affected homebuyers were those who were allotted units without there being any NOC from LICHFL. Affected homebuyers although allotted the units, but area of allotment was reduced and the amounts advanced by them, which was admitted in the CIRP was adjusted against the allotments made under the Resolution Plan. The challenge of Resolution Plan by Sabari Realty Pvt. Ltd. with regard to categorization of affected homebuyers and unaffected homebuyers was rejected in the Appeal and it was held that Resolution Plan has rightly dealt with the two groups of homebuyers, i.e., affected and unaffected homebuyers. The allotment made in favour of homebuyers without NOC of LICHFL was held to be void allotment, however, fresh allotments have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lan of Respondent No.5 was approved without due diligence under Section 29A. The learned Counsel for the Appellant further submits that the Appellant has been wrongly classified as affected homebuyer , since the Agreement to Sale dated 09.08.2018 was in furtherance of amount advanced in July 2015. It is further submitted that Resolution Plan of Phase-1 was approved and Application for approval of Resolution Plan was filed, but the CoC proceeded to take fresh Resolution Plan for both the Projects, which was contrary to the procedure prescribed in the Code and the CIRP Regulations. 8. The learned Counsel for RP, Respondent No.3 and Respondent No.5 refuting the submissions of learned Counsel for the Appellant submit that Resolution Plan submitted by Respondent No.5, having been approved by the Adjudicating Authority vide order dated 19.07.2023, which order having already been upheld on 02.11.2023 and the Appeal challenging the same order of the Adjudicating Authority dated 19.07.2023, deserves to be rejected. It is submitted that the classification of homebuyers as affected and unaffected homebuyers having been upheld by this Tribunal and the Appellant being categorized as affected ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.08.2021. Hence, the submission of Appellant that Respondent No.5 has given back door entry is wholly erroneous and incorrect. 9. We have considered the submissions of learned Counsel for the parties and have perused the record. 10. One of the submissions of learned Counsel for the Appellant is that the Agreement to Sale dated 09.08.2018 was in reference to the payments made by the Appellant in July 2015 and so was in continuation of the Agreement to Sale dated 10.07.2015, hence, the requirement of obtaining NOC from LICHFL was not there. Hence, the Appellant could not have been categorized as affected homebuyers. We may notice, both the Agreements, which have been relied on by the learned Counsel for the Appellant. The Agreement dated 10.07.2015 is an unregistered Agreement entered between the Corporate Debtor and the Appellant. The Agreement was between Sunshine Housing Pvt. Ltd. and the Appellant. The Sunshine Housing Pvt. Ltd. subsequently was changed to Sivana Reality Pvt. Ltd. The said Agreement was with regard to Flat No.103 and 104 in D Wing for consideration of Rs.1.30/- Crores. Now, we come to Agreement dated 09.08.2018, which is basis of the claim of the Appellant. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Para 8, 9 and 10 following has been held: 8. As far as the submission that payment was made to Gujarat Industrial Development Corporation and Surat Municipal Corporation to keep the Corporate Debtor as a going concern, the said payment can very well be made by the Corporate Debtor but not in the manner as adopted in the Resolution Plan. In the present case, the Resolution Plan was approved by the CoC on 06.08.2021 with 99.84% vote share, however, the Adjudicating Authority rejected the plan by the impugned order. It is also to be noticed that none of the Operational Creditors i.e. State Tax, Government of Gujrat and Central Excise, Government of India have come up in appeal. 9. The Punjab National Bank (Financial Creditor) has also filed an Additional Affidavit in pursuance of order dated 31.03.2023 indicating reason to accept the amount as allocated in the plan. We are satisfied that the said reason makes reasonable decision taken by the Bank to accept the plan. Under the Plan the Financial Creditor has conceded amount of Rs.32,78,102/- to Gujarat Industrial Development Corporation and Surat Municipal Corporation. 10. In the facts of the present case, we are of the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... muster. On the contrary, paragraph 77 itself makes it clear that there is a difference in payment of the debts of financial and operational creditors, operational creditors having to receive a minimum payment, being not less than liquidation value, which does not apply to financial creditors. The amended Regulation 38 set out in paragraph 77 again does not lead to the conclusion that financial and operational creditors, or secured and unsecured creditors, must be paid the same amounts, percentage wise, under the resolution plan before it can pass muster. Fair and equitable dealing of operational creditors rights under the said Regulation involves the resolution plan stating as to how it has dealt with the interests of operational creditors, which is not the same thing as saying that they must be paid the same amount of their debt proportionately. Also, the fact that the operational creditors are given priority in payment over all financial creditors does not lead to the conclusion that such payment must necessarily be the same recovery percentage as financial creditors. So long as the provisions of the Code and the Regulations have been met, it is the commercial wisdom of the requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating Authority has also rightly rejected the objections filed by the Appellant by I.A. No. 933 of 2022. 11. In view of the aforesaid, we are of the view that there is no error committed by the SRA in classifying the Appellant into affected homebuyer as his allotment dated 09.08.2018, having been obtained without NOC of LICHFL. The treatment to the Appellant as all other affected homebuyers in the Resolution Plan has already been upheld by this Tribunal as noted above. 12. Now, we may notice other submission raised by learned Counsel for the Appellant, challenging the impugned order dated 19.07.2023. The first submission of the Appellant is that Respondent No.4 SRA has been given a back door entry in the CIRP. Respondent No.5 has given his EOI after the last date of EOI, which was 04.06.2021. From the facts, which have been brought on record, it is relevant to notice that Resolution Plan for Phase-1 was approved by the CoC on 01.03.2021 of one Vira Realspace LLP. With regard to Phase-2, Form-G was published, where the last date for submission of EOI was 04.06.2021. The RP received an email from Kabra Group seeking permission to participate in the EOI, which was placed before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oval of Phase 1 Resolution Plan, which was approved by the CoC in 7th Meeting. However, subsequently in the 13th Meeting Phase 1 Resolution Plan was resolved to be withdrawn. In view of this, the above IA has been rendered infructuous and is hereby disposed of accordingly. 14. Thus, in view of the CoC decision in its 13th Meeting to withdraw the Resolution Plan of Phase 1, the approval of Resolution Plan of Phase-1 was rendered infructuous, which was recorded by the Adjudicating Authority and no one has challenged the said order. It is also relevant to notice that CoC noted the issue as to whether the Resolution Plan of Phase-1 to be withdrawn and the said Agenda was approved by the CoC for withdrawal of Phase-1 Resolution Plan and Appellant also voted in favour of withdrawal of Phase-1, Resolution Plan, which material is on the record. We fail to see how the learned Counsel for the Appellant is raising submission that when there was approval of Resolution Plan of Phase-1, the CoC could not have proceeded further to issue fresh Form-G. We, thus, do not find substance in this submission of learned Counsel for the Appellant. 15. The next submission of learned Counsel for the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is not justified. It has also been sought that the so-called affected Allottees are to be treated at par with the unaffected Allottees and, therefore, the Resolution Plan of Respondent No. 5 is liable to be rejected. 41. Now the question arises as to whether the so-called affected Allottees, which otherwise fall within the category of Financial Creditors in the class of Home Buyers, are entitled to object to the Plan in any manner once as a class they have voted in the COC in favour of the Plan with a majority of more than 50% within the class. Rather it has been pointed by the Counsel for the RP that even if the voting pattern of the Home Buyers is separately seen in terms of affected and unaffected Home Buyers, they have voted overwhelmingly in favour of the Resolution Plan. 87.56% of the unaffected category of Home Buyers has voted in favour of the Plan whereas out of the affected Home Buyers 57.63% have voted in favour of the Plan. 43. In the light of what has been held by the Hon'ble Supreme Court in the afore-cited judgment it becomes abundantly clear that Home Buyers can vote for or against the Plan only as a class and if there are some Home Buyers pitted against the R ..... 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