TMI Blog2024 (5) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... as per direction of the Adjudicating Authority dated 05.03.2024 and has to include the claim of NOIDA as Secured Creditor with respect to other Applications, which are pending consideration, it is appropriate that resubmission of the Plan by SRA should await the disposal of those Applications. Applications, including Applications for acceptance of the claim, which although are belated claims, it is for the Adjudicating Authority to consider the Applications and take a decision as to whether the said claims have to be included or not. The learned Counsel for the Appellant has also referred and relied on the judgment of this Tribunal in PUNEET KAUR VERSUS KV DEVELOPERS PRIVATE LIMITED, MR. PANKAJ NARANG, COMMITTEE OF CREDITORS, CONSORTIUM OF SUMIT KUMAR KHANNA AND M/S. BRIJ KISHORE TRADING PVT. LTD. [ 2022 (6) TMI 108 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI ], where this Tribunal held that even if the homebuyers has not filed the claim within the time, the RP is under obligation to include the claims, which are reflected in the records of the Corporate Debtor. The applications by different Applicants including these two Appellant(s) being pending consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Noida Pvt. Ltd., i.e., Ridge Residency , Sector-135, Noida. The Appellant submits that he was given possession of 09 flats and rest 41 flats were reflected in the website of the Corporate Debtor, but the possession was not given. (ii) By order dated 20.08.2019 M/s Today Homes Noida Pvt. Ltd. the Corporate Debtor was admitted under insolvency. In the Corporate Insolvency Resolution Process ( CIRP ) of the Corporate Debtor, Resolution Plan submitted by Consortium of One Group was approved by the Committee of Creditors ( CoC ) on 03.03.2020 by 100% vote shares. The Resolution Professional ( RP ) filed an IA No.2518/2021 under Section 30, sub-section (2) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as IBC ) (iii) On 16.06.2022, the Appellant filed its claim before the Respondent No.1 (RP). On 24.03.2021, the RP rejected the claim of the Appellant informing that Resolution Plan approved by the CoC is pending approval before the Adjudicating Authority. (iv) The Appellant filed IA No.3213 of 2021 seeking various directions including the direction to consider the claim of the Appellant. IA No.3213/2021 was rejected by the Adjudicating Authority on 21.09.2021 observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy) No. 816 of 2024 has been filed by Yashveer Singh claiming to be allotee of Unit J-0606 in the Project developed by the Corporate Debtor. The Appellant claims that he has paid Rs.41,17,773/- to the Corporate Debtor with respect to the above unit. The Appellant filed its claim on 06.09.2023, which was rejected by the RP vide email dated 09.09.2023, observing that claim cannot be permitted on the ground of delay and approval of Resolution Plan by the CoC. The Appellant thereafter filed an IA No.5923 of 2023 before the Adjudicating Authority, seeking condonation of delay in filing the claim as well as seeking setting aside the Resolution Plan of One Group. (ii) While the IA No.5923 of 2023 was pending before the Adjudicating Authority for adjudication, the Adjudicating Authority passed order dated 05.03.2024 in IA No.2518 of 2021 remitting back the Plan to the CoC and the IA filed by the Appellant was directed to be listed on 30.04.2024. Company Appeal (AT) (Insolvency) No. 817 of 2024 (i) The Appellant Reena claims to be allottee of Unit Bearing No.I-1406 and claimed to have paid an amount of Rs.32,11,234/-. The Appellant filed its claim on 11.08.2023 in Form-CA. Vide his email da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Adjudicating Authority ought to have directed the consideration of claim of the Appellant also. It is submitted that IA, which was filed by the Appellant being IA No.4815 of 2023 is still pending and has been directed to be considered on 30.04.2024, whereas Adjudicating Authority ought to have considered the IA also. 5. Shri Arun Kathpalia, learned Senior Counsel appearing for the Appellant(s) in Company Appeal (AT) (Insolvency) Nos. 816 and 817 of 2024, submits that Appellant(s) have not filed any earlier proceeding and the only Application which have been filed by the Appellant(s) being IA Nos 5923 of 2023 and IA No.4906 of 2023, were the Applications filed by the Appellant(s) seeking direction to admit the claim, which Applications are still pending. In the fitness of things, the Adjudicating Authority ought to have considered the said Applications and thereafter directed the CoC to resubmit the Plan. It is submitted that the claim of the Appellant(s) were rejected only on the ground that Resolution Plan has been approved by the CoC on 03.03.2020, which situation is no longer operating, in view of the order dated 05.03.2024. The approval of Resolution Plan by the CoC being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need to first notice the contents of the order dated 05.03.2024 passed by the Adjudicating Authority, which is impugned in these Appeal(s). The order dated 05.03.2024, notices the prayers made in three IAs, i.e., IA No.2518 of 2021 filed by RP for approval of Resolution Plan, IA No.3615 of 2022 and IA No.4172 of 2022 filed by the NOIDA, which prayers are as follows: The prayer made in IA-2518/2021 which is filed by RP reads as follows:- 1. Approve the Resolution Plan submitted by One Group for the Corporate Debtor, Today Homes Noida Private Limited. 2. Pass any other appropriate orders this Adjudicating Authority may deem fit. The prayer made in IA-3615/2022 which is filed by NOIDA reads as follows:- (a) Reject the resolution plan of Respondent No.02- SRA approved by the Committee of Creditors and filed by Respondent No.1 Resolution Professional vide IA No.2518 of 2021; (b) Pass such other order / directions as this Hon ble Bench may deem fit proper in the facts and circumstances of the case. The prayer made in IA-4172/2022 which is filed by NOIDA reads as follows:- (a) Allow the present application; (b) Direct the Respondent- Resolution Professional to make the payment of amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was advised to submit its claim in Form B (meant for operational creditor) in place of Form C (meant of financial creditor). But, assuming the appellant did not heed the advice, once the claim was submitted with proof, it could not have been overlooked merely because it was in a different Form. As already discussed above, in our view the Form in which a claim is to be submitted is directory. What is necessary is that the claim must have support from proof. Here, the resolution plan fails not only in acknowledging the claim made but also in mentioning the correct figure of the amount due and payable. According to the resolution plan, the amount outstanding was Rs. 13,47,40,819/- whereas, according to the appellant, the amount due and for which claim was made was Rs. 43,40,31,951/- This omission or error, as the case may be, in our view, materially affected the resolution plan as it was a vital information on which there ought to have been application of mind. Withholding the information adversely affected the interest of the appellant because, firstly, it affected its right of being served notice of the meeting of the COC, available under Section 24 (3) (c) of the IBC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NCLAT dealt with those aspects. Relief 55. As we have found that neither NCLT nor NCLAT while deciding the application /appeal of the appellant took note of the fact that,- (a) the appellant had not been served notice of the meeting of the COC; (b) the entire proceedings up to the stage of approval of the resolution plan were ex parte to the appellant; (c) the appellant had submitted its claim, and was a secured creditor by operation of law, yet the resolution plan projected the appellant as one who did not submit its claim; and (d) the resolution plan did not meet all the parameters laid down in sub-section (2) of Section 30 of the IBC read with Regulations 37 and 38 of the CIRP Regulations, 2016, we are of the considered view that the appeals of the appellant are entitled to be allowed and are accordingly allowed. The impugned order dated 24.11.2022 is set aside. The order dated 04.08.2020 passed by the NCLT approving the resolution plan is set aside. The resolution plan shall be sent back to the COC for re-submission after satisfying the parameters set out by the Code as exposited above. There shall be no order as to costs 12. The Hon ble Supreme Court took the view that Resolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed by Shri Sunil Fernandes, learned Counsel for SRA is that direction issued by the Adjudicating Authority vide order dated 05.03.2024 cannot give any benefit to the present Appellant(s), since the directions are only qua the NOIDA with respect to their IA Nos.3615 and 4172 of 2022 and the SRA is only obliged to consider the claim of NOIDA as Secured Creditor and resubmit the Plan. Considering the NOIDA as Secured Creditor and the direction of the Adjudicating Authority, cannot be read to mean that SRA has to consider any other claims while resubmitting the Plan. No exception can be taken to the submissions advanced by learned Counsel for the SRA that order dated 05.03.2024 oblige the SRA, only to consider the claim of Greater Noida Authority as Secured Creditor. 14. The submissions of the Appellant(s) on the other hand that by virtue of the order passed on 05.03.2024, refusing to approve the Resolution Plan approved by the CoC, the CoC can now consider the claim of the Appellant(s), which were not considered, only due to the reason that claims were filed subsequent to approval of Plan by the CoC on 03.03.2020. It is submitted that the approval of Resolution Plan by the CoC on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng no more in operation and the SRA has to resubmit the Resolution Plan, as per direction of the Adjudicating Authority dated 05.03.2024 and has to include the claim of NOIDA as Secured Creditor with respect to other Applications, which are pending consideration, it is appropriate that resubmission of the Plan by SRA should await the disposal of those Applications. Applications, including Applications for acceptance of the claim, which although are belated claims, it is for the Adjudicating Authority to consider the Applications and take a decision as to whether the said claims have to be included or not. 17. The learned Counsel for the Appellant has also referred and relied on the judgment of this Tribunal in Puneet Kaur vs. KV Developers , CA (AT) (Ins) No. 390 of 2022, where this Tribunal held that even if the homebuyers has not filed the claim within the time, the RP is under obligation to include the claims, which are reflected in the records of the Corporate Debtor. In paragraph 21 to 23, this Tribunal has held as follows: 21. When the allotment letters have been issued to the Homebuyers, payments have been received, there are Homebuyers and there is obligation on the part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BBI, it would be fair and proper if appropriate provision is incorporated under IBBI, (Insolvency Resolution Process for Corporate persons) Regulation 2016 for preparation of Balance Sheet as on date of initiation of CIRP process and the same gets audited from a regular Statutory Auditor of the Corporate Debtor certifying all schedules, including micro details of both Assets and Liabilities so that admitted liabilities in the Corporate Debtor records are not ignored even if such claims are not received in time etc. It will aid smoothen the existing system of collection and consideration of claim and these small individuals, MSME, SME and Government Department will not be the sufferer. It will also avoid large number of cases being filed by such left out Creditors. 23. We thus are of the considered opinion that Information Memorandum ought to have included the claim of those Homebuyers, who have not even filed their claims to correct liabilities of the Corporate Debtor for its appropriate resolution. In the present case, in the reply filed by Resolution Professional in paragraph 11, following statement has been made: 11. It is pertinent to mention herein that the claims towards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent any recovery of money is done from the previous management of THNPL, the entire amount collected shall be first used to give discount to only the Allottees who are paying additional amount of INR 400 psf, to the extent of INR 100 psf of super area. Deleted Cancelled Units 26. 18.4 (i) Completion of the Project is planned within a period of 2 years, 6 months from the Start Date. The Completion of the Project shall be done in phases as mentioned below: Particulars Estimated Timeline from Start Date Phase 1 i) 2 Towers (I and J) (ii) Commercial Block 4 Qtr Phase 2- 8 Qtr 4 Towers (P, Q, R, and A) Phase 3 3 Towers (F, G and H) 10 Qtr The timelines for project completion will be brought forward by 9 months. The clause will be substituted by Completion of the Project is planned within a period of 1 years, 9 months from the Start Date. The Completion of the Project shall be done in phases as mentioned below Particulars Estimated Timeline from Start Date Phase 1 i) 2 Towers (I and J) (ii) Commercial Block 4 Qtr Phase 2- 4 Towers (P, Q, R, and A) 6 Qtr Phase 3 3 Towers (F, G and H) 7 Qtr It is clarified that the work under Pool Built shall continue. In support of the same, the RA has of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor. 21. As observed above, Applications by different Applicants including these two Appellant(s) being pending consideration, we are of the view that at this stage, it is not necessary for this Tribunal to express any opinion on the merits of the Applications, which are pending adjudication before the Adjudicating Authority. As observed above, resubmission of the Resolution Plan by the SRA has to await the decision of all other Applications, which was deferred by the Adjudicating Authority for consideration on 30.04.2024, as per order dated 05.03.2024 itself. There is no doubt that claim of the NOIDA has to be considered as per the direction dated 05.03.2024 as Secured Creditor, but since other Applications are still pending, we are of the view that ends of justice will be served in disposing of these Appeal(s) with following directions: (I) The order dated 05.03.2024 passed by Adjudicating Authority is not being interfered with. (II) The Adjudicating Authority may consider and dispose of the Applications as noted in the order dated 05.03.2024, which were deferred for consideration on 30.04.2024 at an early date. (III) The SRA, who has to resubmit the Resolution Plan before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
