TaxTMI 
TaxTMI 
2022 (2) TMI 1483
X X X X Extracts X X X X
X X X X Extracts X X X X
....Resolution Plan of the Corporate Debtor. 2. The Corporate Debtor was admitted into CIRP vide order of admission dated 16.04.2021. The RP appointed carried out the following duties: a. Publish the public announcement of CIRP in Form A dated 22.04.2021 in two newspapers inviting claims from Financial / Operational Creditors etc. b. The home buyers nominated Mr. Rakesh Kumar to be the authorized representative which was approved by the Bench. 3. The notice of initiation of CIRP was sent to all statutory authorities, however, they have not referred to file any claims. The copy of serving notices to authorities are annexed to Exhibit E to the Application. 4. As per section 18(1)(c) of the Code, the CoC was constituted on the basis of claims on receipt of the creditors, the reports certifying constitution of Committee of Creditors (CoC) was submitted on 13.05.2021 to NCLT. The Constitution of COC after considering all the claims is as follows; COC Amount Admitted Voting Share Rakesh Kumar representing the interest of 260 home buyers 3,55,93,85,894/- 100% 5. The first CoC meeting was held on 20.05.2021 wherein the IRP was confirmed as an RP. The IRP prepared the Initial info....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... The RP prepared the Information Memorandum and the details of the Financial Creditor are as follows; 11. The secured Financial Creditor Dewan Housing Finance Corporation Ltd. had outstanding liability as per the last audited balance sheets of the Corporate Debtor, however, Dewan Housing Finance Corporation Ltd. has not filed its claims and other CIRP process. The details of other creditors including Operational Creditors are as shown as below; The balance sheet as on 31.03.2021 is as follows; 12. The salient features of Resolution Plan is as follows; a. Overview of the Corporate Debtor b. The Corporate Debtor was incorporated on 25.01.2007 and was in the business of Real Estate. An application is filed by the Mr. Anup Jain, Home Buyer vide C.P. No. 1396 of 2020 and an order of admission was passed on 16.04.2021 and the IRP, Mr. Neehal Mahamulal Pathan was appointed. The Corporate Debtor has three Suspended Board of Directors, and two shareholders. As per the information memorandum, the list of financial creditors is as follows; c. Diwan Housing Financial Corporation has not filed claims under the CIRP process and is not a member of CoC. d. The details of other credito....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... The Assets to be dealt with the plan in clause 2.3, 2.4 and 2.5 is as follows: 2.3 The real estate project of the Corporate Debtor comprises of the incomplete building being B1 to B7 of Royal Raj Villas, open area of CP-1 Tower And also includes Phase 2 (Royal Raj Vilas LIG/EWS) and agriculture land parcels situated in Village Shobagpura, Udaipur. However, this is subject to the rights of the Allottees and the obligations of the Corporate Debtor under the provisions of the Real Estate (Regulation and Development) Act, 2016 read along with the Rajasthan Real Estate (Regulation and Development) (Registration of real estate projects, Registration of Real Estate Agents, Rates of Interest and Disclosures on Website) Rules, 2617 ("RERA"). 2.4 Although the resolution applicant is putting its own money to complete the projects, but the resolution applicant has given the resolution plan keeping in mind that the Balance Consideration of is Rs. 44,83,92,660.64/- (Rupees Forty-Four Crores Eighty-Three Lacs Ninety-Two Thousands Six Hundred Sixty Only) which is receivable from the Allottees would definitely be received as per the agreed schedule. The Resolution Applicant shall be completing....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Resolution Applicant, it is not feasible to complete the project and handover constructed units to the allottees by the Resolution Applicant and also phase-2 if the Resolution Applicant has to repay the outstanding debt of [NR 71 crores to Dewan Housing Finance limited. Further, the IM of the CD clearly states that Dewan Housing Finance Limited has not filled for any claims under the CIRP process. However, with a clear conscience and keeping in mind the need to handover constructed possession of units to the allottees and also completing and handing over phase-2, the Resolution Applicant proposes to pay an amount of Rs. 5.00 crore in full & final settlement of its entire dues. This amount would be paid over the next three years as the project is completed and further units are sold in the project. Based on the feasibility of the project carried out by Resolution Applicant, it would not be possible to pay Dewan Housing Finance Limited any amount from the balance consideration receivable from existing allottees. it is, however, clarified that upon sanction of this Plan the Secured Creditor shall not have any security interest over any part of assets of corporate debtor on and from r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reto as Annexure-1 21. Proposed Corporate Restructuring 22. Retention of employees All employees and workers of Corporate Debtor shall continue to be in service on the same terms and conditions as applicable to them. 23. Ownership of properties pertaining to Corporate Debtor The Corporate Debtor is a owner of property upon which RRV and phase 2 is constructed. 24. Time lines of implementation of plan The Resolution Applicant shall complete the construction of RRV in accordance with this Plan within a period of fifteen (15) months from the Effective Date and in accordance with the plans sanctioned by the competent authority. The timeline for implementation of this Plan as is set out herein is a term of fifteen (15) months from the Effective Date. The timeline as set out here under for completion of the RRV project is subject to the Resolution Applicant getting all the approvals from the competent authority in. a timely manner, the Allottees make the payment of the Balance Consideration within the stipulated timelines as set out in this Plan and various other statutory requirements. However, if the timeline for completion is delayed or extended or is expected to be extended ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... amount of Rs. 75.00 Lacs which includes payment to Interim Resolution Professional and/or Resolution Professional and all amount of expenses incurred by IRP and/or RP, to the extent duly ratified or approved by the Committee of Creditors (CoC) an shall he paid in priority to all other debts by Resolution Applicant after the approval of Resolution Plan by Adjudicating Authority. The source for amount can be identified as a commitment by resolution applicant for Rs 75.00 Lacs. Any higher amount over and above this (as approved by CoC) shall be borne and paid by Resolution Applicant on priority basis. In the event of the CIRP cost comes to a lower figure than the estimated level of 75.00 Lacs, the balance amount shall he added to the amount to be given to Secured Financial Creditors. The Resolution Plan proposes a cost of 75 lakhs towards the CIRP cost. 28. Proposal for secured Financial Creditors to the Corporate Debtors The total amount of secured financial debt of Dewan Housing Finance Limited is Rs.7067.83 lakhs However, no claim has been filed by the DHFL till date and the outstanding financial liability of DHFL is settled for 500.00 lakhs. The balance due of secured financi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....red financial Creditors) who have lodged the claims as per the balance sheet The Corporate Debtor was developing a residential cum commercial project in Udaipur under the name of Royal Raj Villas and Connaught Place. Total 363 residential flats and 111 commercial units are being constructed. Out of above units 273 flats have been booked and sold and 111 commercial units -have been sold totally. The project is not complete only partial civil work has been done and to complete the unfinished portion of sold flats further investment of 6000.00 lacs will be done by Resolution Applicant to complete the balance work of sold flats and hand over the possession of flats to Home Buyers. The claims of secured home buyers will be settled by handing over the finished flats with all amenities as promised by the Corporate Debtor in his sales Brochure. The resolution applicant proposes to receive the balance due from home buyers as detailed in previous para and as per the Resolution Plan the interest amount claimed by Home Buyers are stand waived on approval of plan from the adjudicating. authority. 33. Proposal for refund of booking cancellation who have lodge the claims and also are part of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Resolution Applicant has filed the affidavit that it is not prevented from submitted the claim under section 29 of the Code. F. The Bank Guarantee provided under the Resolution Plan is as follows: G. Mandatory contents of CIRP: H. Reliefs concessions and dispensations: With regard reliefs, concessions and waivers as sought by the Resolution Applicant, this Bench orders that the reliefs and concessions are granted as per the judgement of Hon'ble Supreme Court in Ghanshyam Mishra & Sons vs. Edelweiss Asset Reconstruction Company limited, where at para 95 (i) it was held that once a resolution plan was approved a creditor cannot initiated proceedings for recovery of the claim which are not part of the Resolution plan. Hence, all past liabilities arising out of any levies/ tax dues to any government authority such as VAT, CST, customs Excise Duty and employees, workmen, operational creditor, financial creditor, etc, which are not part of the resolution plan and pertaining to the pre CIRP period, shall stand extinguished, post approval of the resolution plan. Further, as the financial Creditor namely DHFL has not filed their claim, their claim stands extinguished in terms o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that the dues payable to the unsecured financial creditors shall be entirely paid/ written off, the plan also provides that 5% of statutory dues will be paid i.e. 0.86 lakhs will be paid and the balance will be waived off, the operational creditors would be paid an amount of Rs. 6.7 lakhs within a period of 60 days. The existing equity shares shall get written off and 10 lakhs new equity shares of Rs. 10 each for cash at par shall be issued to resolution applicant. 41. Section 30(2)(c)(d) the Resolution Plan further provides for the monitoring committee is as follows; a. Monitoring agency will be overseeing the resolution plan b. The Resolution Applicant should supervise the implementation of the implementation of plan after the effective date. c. Resolution Applicant shall constitute the steering committee and managing agency for proper and timely implementation of plan 42. Section 30(2) (e), the RP has certified that the Resolution Plan complied with the provision of the Code and regulation and does not contravene any provision of law from the time being in force. 43. With regard to the attachment order passed by Enforcement Directorate on 02.04.2019 and the same was co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....olution Professional, Adjudicating Authority, of that matter NCLAT to reverse the commercial decision of the CoC. It is also held that the commercial decision of Financial Creditor are not open for judicial review by Adjudicating authority and by Appellate Authority. Therefore, in view of the above discussion. The decision taken by the Financial Creditor/CoC Members falls within the ambit of its commercial and banking wisdom and is therefore not being interfere with. 47. In view of the above discussion the decision taken by the CoC falls within the ambit of its commercial wisdom and cannot be interfere with. ORDER 48. Therefore, subject to the observation made in this order, we hereby accord our approval to the Resolution Plan. The Resolution Plan shall form part of this order. 49. Any relief sought in the Resolution Plan, where any contract, agreement understanding, Proceeding, action, notice etc. not specifically identified, or is for a future contingency, is, at this point of time, rejected. 50. The Resolution Plan as approved is binding on the Corporate Debtor and other stakeholders involved so that the revival of the Corporate Debtor can come into force with immediate eff....