TMI Blog2024 (5) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... o doubt the transaction which is more than two years prior to commencement of CIRP. The association did not raise any plea of fraud in transferring the plot by sub-lease and the RP failed to make out a case that the sub-lease was executed for depriving the rights of homebuyers. Also in the case of Piya Puri [ 2022 (8) TMI 1111 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] the same view has been taken while discussing Section 25A of the Code and Regulation 16-A(9) of the Regulations. It has been held that where the majority (more than 50%) have voted in favour of the resolution plan approving the same, the dissenting homebuyers who are in minority have to go alongwith the views of the majority and are not entitled to prefer the appeal. In view of the law laid down by the Hon ble Supreme Court and this Court coupled with the fact that the homebuyers as a class through authorised representative have voted to the extent 87.60% approving the resolution plan, the other homebuyers who are in minority have to follow the decision of the majority and cannot challenge the resolution plan in appeal as they do not fall within the definition of aggrieved person and thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor, Arham Escon Pvt. Ltd. and GNIDA and a portion of site i.e. 10,627.229 sq. mts. was sub-leased to Arham Escon for construction and development of the projects. 6. The Homebuyers entered into agreements for purchase of flats/commercial areas in two projects of the Corporate Debtor, namely, Shubhkamna Advert Techomes Projects, situated at Sector 137, Expressway, Noida and Shubhkamna City, Plot No. GH-02A, Sector 01, Greater Nodia West (Noida Extension). 7. After the initiation of the Corporate Insolvency Resolution Process (in short CIRP ), Interim Resolution Professional (In short IRP ) made a public announcement in form A on 30.11.2018 and 07.01.2019. The IRP also constituted the CoC based on the claims received from the creditors of the Corporate Debtor. A tabular representation of the voting percentage alongwith the claim admitted of the creditors in each class/entity of the Corporate Debtor is as under: - Name of the Class/Entity Voting Share Claim Admitted (INR) Homebuyers/Allottees 87.6% 536,70,62,437 Merina Commotrade Pvt. Ltd. 1.67% 102,125,000 Canara Bank 0.11% 6,815,374 DHFL 3.51% 215,039,400 Rishi Kapoor 1.82% 111,221,500 UCO Bank 5.16% 316,377,832 Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poor Dissent 11.12 0.9 1.5231208 14. The RP filed an application i.e. CA No. 485 of 2019 before the Adjudicating Authority under Section 30(6) and 30(1) of the Code r/w Regulation 39(4) of the Regulations seeking approval of the resolution plan submitted by the SRA, approved by the CoC on 09.10.2019. 15. Objections were filed by the four set of objectors to the approval of the resolution plan. The first set of objector was a group of five dissenting homebuyers i.e. Commander Rohtash Kumar Sharma, Anil Kumar Kulshrestha, Shalini, Ranjan Singh and Prashant Gaur. It was their objection that two projects i.e. Shubhkamna City and Shubhkamana Techomes were merged for the purpose of the resolution plan and the same is against the principle of reverse corporate insolvency which has to be followed in respect of real estate infrastructure companies, the Corporate Debtor had illegally sub-leased a part of the project to Arham Escon Pvt. Ltd. The second set of objectors was filed by M/s Merina Commotrade Pvt. Ltd., a dissenting financial creditor and the third set of objector was filed by New Okhla Industrial Development Authority (Noida) and 4th set of objector was GNIDA. 16. In so far as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Essar Steel India Limited through Authorized Signatory Vs. Satish Kumar Gupta Ors., 2019 SCC Online SC 1478 and a decision of this Court in the case of IMR Metallurtical Resources AG Vs. Ferro Alloys Corporation Limited Ors., CA (AT) (Ins) No. 272 of 2020. 19. Since, the preliminary objection, raised by the Respondent, goes to the root of the case because the objection is about the competence of maintaining the appeal by the present appellants, therefore, both the parties were heard on the preliminary objection and order was reserved. 20. At this stage, we would like to mention that the RP had filed an application i.e. CA No. 113 of 2019 in CP No. (IB)-1059/ND/2018 under Section 60(5)(c) of the Code seeking reliefs against the sub-lessee M/s Arham Escon Pvt. Ltd. and lessor GNIDA. As a matter of fact, the tripartite agreement was challenged as void but the said application was dismissed by the Adjudicating Authority vide its order dated 23.09.2019 against which the RP filed the appeal i.e CA (AT) (Ins) No. 1231 of 2019 before this Tribunal which was dismissed on 05.01.2022 holding that the RP had no locus to file the application. It was further held that the transfer of portion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the CoC as required under section 24 of the IBC. The manner of eliciting the views of the financial creditors in class by the Authorised Representative, is to be done by the Authorised Representative in accordance with subregulation 9 of Regulation 16-A of the CIRP Regulations. 10. A perusal of the provisions relating to selection of Authorised Representative, the manner and modality of her/his participation in the CoC meetings to represent the views of the financial creditors in class is provided very clearly and elaborately in the IBC and the CIRP Regulations. The Authorised Representative so selected to participates in the CoC meetings as well as in decision making in the CoC, he does so on behalf of all the home allottees/homebuyers and the view of individual homebuyer is therefore subsumed in the majority (of more than 50%) decision coming through that process when the financial creditors in class express views and voted in any matter. This view is then placed before the CoC by the Authorised Representative. 11. Thus, the Authorised Representative s primary duty and responsibility is to present the views of the financial creditors in class in the CoC meetings. We note that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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