AI OCR 
TaxTMI 
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TaxTMI 
2018 (8) TMI 661
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....Ms. Surabhi Khattar, Adv., Ms. Srideepa Bhattacharyya, Adv., Mr. Manpreet Lamba, Adv., M/s. Cyril Amarchand Mangaldas, Mr. Sandeep Devashish Das, AOR, Mr. Anupam Lal Das, AOR, Mr. Vishal Gupta, Adv., Mr. Abhishek Raj, Adv., Mr. Paras Choudhary, Adv., Mr. Aniruddha, Adv., Ms. Swarupama Chaturvedi, AOR, Mr. B.N. Dubey, Adv., Ms. Devika Gulati, Adv., Ms. Vaishali Verma, Adv., M/s. Unuc Legal Llp, Mr. Ajit Sharma, AOR, Mr. Bijoy Kumar Jain, AOR, Mr. Varinder Kumar Sharma, AOR, Mrs. Anil Katiyar, AOR, Mr. Nakul Dewan, Adv., Mr. Pradhuman Gohil, Adv., Mrs. Taruna Singh Gohil, AOR, Mr. Himanshu Chaubey, Adv., Ms. Neelu Mohan, Adv., Mr. Zain Maqbool, Adv., Mr. Amit Sharma, AOR, Mr. Naveen Kumar, AOR, Mr. Vishnu Sharma, AOR, Ms. Anupama Sharma, Adv., Ms. Sonali Negi, Adv., Mr. Mohit Rai, Adv., Mrs. Sarla Chandra, AOR, Mr. Arun K. Sinha, AOR, Ms. Prerna Mehta, AOR, Mr. Sachin Patil, AOR, Mr. Partha Sil, AOR, Mr. C.A. Sundaram, Sr. Adv., Ms. Kavita Jha, AOR, Mr. Vaibhav Kulkarni, Adv., Mr. Udit Naresh, Adv., Mr. M. A. Krishna Moorthy, AOR, Mr. K. K. Mohan, AOR, Mr. Raj Kishor Choudhary, AOR, Mr. Rajiv K. Virmani, Adv., Mr. Atul Malhotra, Adv., Mr. Gaurav Jain, Adv., Mr. Yadav Narender Singh, ....
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....Kumar Singh, Adv., Mr. Vijendra Mishra, Adv., Ms. Shashi Kiran, AOR, Mr. Sanjay Kumar Dubey, AOR, Mr. Yunus Malik, Adv., Ms. Renu Verma, Adv., Dr. Anish Maheshwari, Adv., Mr. Samir Malik, AOR, Ms. Ruchi Kohli, AOR, Sonam Sharma, Adv., Ms. Nidhi Jaswal, Adv., Ms. Gargi Jha, Adv., Mr. S.S. Ray, Adv., Mr. Vaibhav Gulia, Adv., Ms. Rakhi Ray, AOR, Mr. Rajender Prasad, AOR, Mr. Rahul Narayan, AOR, Ms. Puja Sharma, AOR, Mr. Suchit Mohanty, Adv., Mr. Prakash Ranjan Nayak, AOR, Mr. Niraj Gupta, AOR, Ms. Anshu Gupta, Adv., Mr. Mukesh Jain, AOR, Md. Shahid Anwar, AOR, Mr. Saurabh Kirpal, Adv., Mr. Abhijnan Jha, Adv., Mr. Mayank Pandey, AOR, Ms. Madhusmita Bora, AOR, Mr. Ravi Chandra Prakash, Adv., Mr. Mukesh Kumar Singh, Adv., Mr. Amit, Adv., Mr. Purushottam Sharma Tripathi, Adv., M/s. Ravi Chandra Prakash & Co., Mr. Kaushik Choudhury, AOR, Mr. Kailash Prashad Pandey, AOR, mr. Niraj Singh, Adv., Mr. Prashant Mathur, Adv., Mr. Guntur Prabhakar, AOR, Ms. Geetanjali Mohan, AOR, Mr. Gaurav Kejriwal, AOR, Mr. Ejaj Maqbool, AOR, Mr. Deepak Goel, AOR, Mr. Christopher D'souza, AOR, Mr. Braj Kishore Mishra, AOR, Mr. Binay Kumar Das, AOR, Ms. Asha Jain Madan, AOR, Mr. Anil Nag, AOR, Mr. Anil Kumar Tand....
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....stitution of suits and the continuation of pending proceedings, including execution proceedings was prohibited. An Interim Resolution Professional (IRP) was appointed under the provisions of the IBC. On 14 August 2017, JIL, in pursuance of the order of NCLT called for submissions of claims by creditors: financial creditors in Form-C, operational creditors in Form -B, workmen and employees in Form -E and other creditors in Form -F. On 16 August 2017, the Insolvency and Bankruptcy Board of India made an amendment to its regulations and Regulation 9(a) was inserted to include claims by other creditors. On 18 August 2017, the Board released a press note clarifying that home buyers could fill in Form -F as they could not be treated at par with financial and operational creditors. 4 These proceedings were instituted for the following reliefs: (i) A declaration that Sections 6,7,10,14 and 53 of the Code are ultra vires in so far as only financial or operational creditors are recognized, disregarding other stakeholders such as the home buyers; (ii) The order dated 9 August 2017 of the NCLT be set aside; (iii) The Union of India be directed to notify under Sect....
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....nd National Consumer Disputes Redressal Commissions. In June 2017, RBI is stated to have published a list of the top 12 defaulters in the country including JIL which was declared to be in default of an amount approximately of Rs. 8,000 crores to its lenders. 8 This Court was moved in the exercise of its jurisdiction under Article 32 to protect the interests of home buyers, who had been left in the lurch. When the petition was instituted, they had no locus in the CIRP. Liquidation would leave the home buyers to face an uncertain future. The disposal of assets would, it is apprehended, deprive them of their right to own a home. Faced with a situation of human distress, occasioned by the failure of the developers to meet their contractual obligations and a legal regime as it then stood under the IBC which provided no solace to home buyers, this Court issued notice on 4 September 2017 in a batch of writ petitions. Proceedings before the NCLT at Allahabad were directed to remain stayed until further orders. The Court further directed that a copy of the proceedings be served on the office of the learned Attorney General for India. Applications for impleadment and intervention were all....
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....ction 14(1)(a) remain stayed as we have directed the IRP to remain in Management. Be it clarified that we have passed this order keeping in view the provisions of the Act and also the interest of the home buyers." 11 The above interim directions indicate that three significant aspects were the foundation of the order: First, following the discipline of the IBC, the IRP was permitted to take over management of JIL and to proceed to formulate an interim resolution plan within a stipulated period; Second, the IRP was directed to ensure that necessary provisions were made to protect the interests of home buyers. To facilitate the views of the home buyers being placed before the CoC this Court nominated a senior counsel practicing before this Court to participate in those meetings under Section 21 of the IBC; Third, JAL as the holding company of JIL was directed to deposit a sum of Rs. 2,000 crores on or before 27 October 2017. In formulating these directions, the Court initiated steps to protect the interests of the home buyers. At that stage, it must be noted, the CoC as constituted under Section 21 of the IBC did not include a representative of the home buyers. Nor wer....
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....ary 2018 RBI moved an Interlocutory Application before this Court seeking leave to move the NCLT against JAL under the provisions of the IBC. While observing that the application filed by the RBI would be considered at a later stage, this Court issued directions to JAL to file details of its housing projects on affidavit. The amicus curiae was permitted to open a separate web portal reflecting the details of the home buyers of JAL. 16 When the proceedings were listed before this Court on 21 March 2018, JAL stated through its counsel that an amount of Rs. 550 crores had been deposited with the Registry. Counsel for JAL stated that only 8% of the home buyers are interested in seeking a refund while others have expressed the desire to seek possession of their flats. The Court indicated in its order that presently it was concerned with those home buyers who sought a refund while the grievances of those who wished to have possession of their flats would be considered at a subsequent stage. Since the order for the deposit of Rs. 2,000 crores had not been complied with despite the end of the deadline under the previous directions, the Court issued further directions. As agreed by the M....
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....nt which was deposited by JAL. No direction for disbursement has been issued and the request was deferred for being considered. 20 On 13 July 2018, certain proposals were made by JAL before this Court for permission to alienate specific assets to secure compliance with the interim directions of this Court for deposit of Rs. 2,000 crores. This proposal was seriously opposed by counsel for the petitioners and home buyers, besides the financial institutions. Observing that the Court was not inclined to entertain the proposals mooted by the JAL, the proceedings were directed to be listed on 16 July 2018 "exclusively for the purpose of considering the issue of the rights of the home buyers and the capability of JAL and JIL to construct the projects." 21 Section 12(1) of the IBC envisages that the CIRP has to be completed within a period of 180 days from the date of admission of the application. However, a window is provided to the resolution professional to seek an extension of a further period of 90 days upon a resolution from the CoC. The extension can be provided only once. 22 In the case of JIL, the period for completing the CIRP was to end on 6 February 2018. Based on the ....
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....C of its ability to tie up funds for construction. The CoC resolved to put the resolution plan of Lakshdeep for voting on 8 May 2018. However, when the plan was taken up, only 6 % of the votes cast were in favour of Lakshdeep, as against a three-fourth majority which was then needed under Section 30 (4) (the present requirement is of two-thirds, following the amendment to the IBC which has taken effect from 6 June 2018). Accordingly, the IRP informed the NCLT that no resolution plan was approved by the CoC within a period of 270 days which came to an end on 12 May 2018. 23 The total financial debt due to the financial creditors on the date of the commencement of corporate insolvency (9 August 2017) stood at Rs. 9,984.70 crores. 24 Section 33(1) of the IBC postulates that liquidation follows upon the rejection of a resolution plan: "33. Initiation of liquidation. (1) Where the Adjudicating Authority, - (a) before the expiry of the insolvency resolution process period or the maximum period permitted for completion of the corporate insolvency resolution process under section 12 or the fast track corporate insolvency resolution process under section 56,....
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....ossession". The resolution process is market driven. Resolution professionals are appointed or replaced by the CoC to conduct the entire process within 180 days, which can be extended for a further period of 90 days. A moratorium would operate during the process. Failure of the resolution process leads to liquidation. Primacy is given in the process to commercial decisions. The success of the process is contingent upon the competence of the IRP and the CoC. The responsibilities entrusted to the IRP include managing the affairs of the corporate debtor, engaging experts or professionals, constituting a CoC, preparation of an information memorandum, determination of the liquidation value and enterprise value, inviting expressions of interest, permitting resolution applicants to submit plans which would be placed before the CoC where the applicant is found to be eligible (Sections 17, 18, 20, 23, 25, 26, 29 and 30). The CoC comprises of all financial creditors and authorised representatives of certain categories of persons and classes of creditors under Section 21(6) and Section 21(6A)(b). The CoC is responsible for approving crucial decisions and actions of the IRP, while managing the....
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.... (i) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and (ii) the expressions, "allottee" and "real estate project" shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016);" As a result of the amendment brought about in the definition of 'financial debt', amounts raised from allottees under real estate projects are deemed to be amounts "having a commercial effect of a borrowing". Hence outstandings to allottees in real estate projects are statutorily regarded as financial debts. Such allottees are brought within the purview of the definition of 'financial creditors'. 28 Section 7 of the IBC creates a statutory right in favour of financial creditors to initiate the corporate resolution process. Section 7 reads thus: "7. Initiation of corporate insolvency resolution process by financial creditor. (1) A financial creditor either by itself or jointly with other financial creditors, or any other person on behalf of the financial creditor, as may be notified b....
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.... (b) the order under clause (b) of sub-section (5) to the financial creditor, within seven days of admission or rejection of such application, as the case may be." Being financial creditors under the IBC, allottees in real estate projects necessarily constitute a part of the CoC. Section 21 contains provisions for the constitution of the CoC. In so far as is material, Section 21 is extracted below: "21. Committee of creditors. (1) The interim resolution professional shall after collation of all claims received against the corporate debtor and determination of the financial position of the corporate debtor, constitute a committee of creditors. ... (3) Subject to sub-sections (6) and (6A), where] the corporate debtor owes financial debts to two or more financial creditors as part of a consortium or agreement, each such financial creditor shall be part of the committee of creditors and their voting share shall be determined on the basis of the financial debts owed to them. (4) Where any person is a financial creditor as well as an operational creditor, - (a) such person shall be a financial creditor to the extent of the financia....
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....e manner of voting and the determining of the voting share in respect of financial debts covered under sub-sections (6) and (6A)." Financial creditors are entitled to a voting share proportionate to the extent of the financial debt owed. Regulation 16A contains provisions for the selection of an authorised representative to represent financial creditors in the class. Regulation 16A is in the following terms: "16A. Authorised representative. (1) The interim resolution professional shall select the insolvency professional, who is the choice of the highest number of financial creditors in the class in Form CA received under sub-regulation (1) of regulation 12, to act as the authorised representative of the creditors of the respective class: Provided that the choice for an insolvency professional to act as authorised representative in Form CA received under sub-regulation (2) of regulation 12 shall not be considered. (2) The interim resolution professional shall apply to the Adjudicating Authority for appointment of the authorised representatives selected under sub-regulation (1) within two days of the verification of claims received under sub-reg....
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....ntation of financial creditors through authorised representatives, as detailed in Para 1 above, and are, therefore, matters of procedure. It is necessary that an ongoing corporate insolvency resolution process, where creditors belonging to a class are otherwise not represented in the CoC, uses this simplified mechanism, irrespective of the stage of the process. The resolution professional, who exercises the powers and performs the duties as vested or conferred on the interim resolution professional under section 23(2) of the Code, shall facilitate representation through authorised representative(s). 3. It is, accordingly, clarified that wherever the approval of resolution plan under regulation 39 (3) of the Regulations is at least 15 days away, the resolution professional shall expeditiously obtain, by electronic means, the choice of the insolvency professional from creditors in a class to act as the authorised representative of the class and proceed further in the manner as specified in regulation 16 A of the Regulations." The case of JAL: 29 Mr FS Nariman, learned senior counsel appearing on behalf of JAL tendered a note of submissions before this Court seeking to ....
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.... of JAL by Mr FS Nariman, learned senior counsel we are not inclined to accept it. As we shall explain, accepting the proposal submitted on behalf of JAL would cause serious prejudice to the discipline of the IBC and would set at naught the salutary provisions of the statute. In order to enable the Court to explain the position, a reference is necessary to the provisions of Section 29 A of the IBC which reads as follows: 29A. Persons not eligible to be resolution applicant. A person shall not be eligible to submit a resolution plan, if such person, or any other person acting jointly or in concert with such person- (a) is an undischarged insolvent; (b) is a wilful defaulter in accordance with the guidelines of the Reserve Bank of India issued under the Banking Regulation Act, 1949 (10 of 1949); (c) at the time of submission of the resolution plan has an account, or an account of a corporate debtor under the management or control of such person or of whom such person is a promoter, classified as non-performing asset in accordance with the guidelines of the Reserve Bank of India issued under the Banking Regulation Act, 1949 (10 of 1949) or the guidelines of ....
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....connected person referred to in clause (iii) of Explanation I; (f) is prohibited by the Securities and Exchange Board of India from trading in securities or accessing the securities markets; (g) has been a promoter or in the management or control of a corporate debtor in which a preferential transaction, undervalued transaction, extortionate credit transaction or fraudulent transaction has taken place and in respect of which an order has been made by the Adjudicating Authority under this Code: Provided that this clause shall not apply if a preferential transaction, undervalued transaction, extortionate credit transaction or fraudulent transaction has taken place prior to the acquisition of the corporate debtor by the resolution applicant pursuant to a resolution plan approved under this Code or pursuant to a scheme or plan approved by a financial sector regulator or a court, and such resolution applicant has not otherwise contributed to the preferential transaction, undervalued transaction, extortionate credit transaction or fraudulent transaction; (h) has executed a guarantee in favour of a creditor in respect of a corporate debtor against which....
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....gulation 2 of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2017 made under the Foreign Exchange Management Act, 1999 (42 of1999); (d) an asset reconstruction company register with the Reserve Bank of India under section 3 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (e) an Alternate Investment Fund registered with Securities and Exchange Board of India; (f) such categories of persons as may be notified by the Central Government." 31 Parliament has introduced Section 29 A into the IBC with a specific purpose. The provisions of Section 29 A are intended to ensure that among others, persons responsible for insolvency of the corporate debtor do not participate in the resolution process. The Statement of Objects and Reasons appended to the Insolvency and Bankruptcy Code (Amendment) Bill 2017, which was ultimately enacted as Act 8 of 2018, states thus: "2. The provisions for insolvency resolution and liquidation of a corporate person in the Code did not restrict or bar any person from submitting a resolution....
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....the CIRP. Section 30 of the IBC, as amended, also clarifies that a resolution plan of a person who is ineligible under Section 29 A will not be considered by the CoC : "30. Submission of resolution plan. ... (4) The committee of creditors may approve a resolution plan by a vote of not less than 4[sixty-six] per cent. of voting share of the financial creditors, after considering its feasibility and viability, and such other requirements as may be specified by the Board: Provided that the committee of creditors shall not approve a resolution plan, submitted before the commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2017 (Ord. 7 of 2017), where the resolution applicant is ineligible under section 29A and may require the resolution professional to invite a fresh resolution plan where no other resolution plan is available with it: Provided further that where the resolution applicant referred to in the first proviso is ineligible under clause (c) of section 29A, the resolution applicant shall be allowed by the committee of creditors such period, not exceeding thirty days, to make payment of overdue amounts in accordan....
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....ed (Consumer Case No. 1479 OF 2015); (v) The contention of JAL that they faced impediments on account of the purported stay imposed by the NGT is patently incorrect as the stay by the NGT was only on handing over possession without an occupation certificate, which had no bearing on the construction. Moreover, JAL carried out construction during that period as is evidenced inter alia by the fact that they raised demands for construction linked payments during this period; (vi) During the pendency of the CIRP from 9 August 2017, construction work was done under the aegis of the IRP under whom JAL was a mere contractor; (vii) The claim by JAL that flats have been delivered is a fractured claim as flats have been delivered in incomplete stages and are not in accordance with the allotment letters. The flooring is not complete, doors and windows are missing, no objection certificates have not been obtained from the Fire Department and the offer of possession is being made without the occupation certificate; viii) JAL does not have the capacity to deliver the flats and 22,000 homebuyers are suffering due to delays of more than four years in completion o....
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....inished projects. To allow them to participate in the process of resolution will render the provisions of the Act nugatory. This cannot be permitted by the Court. 36 But it has been submitted on behalf of JAL/JIL by Mr F.S. Nariman, learned senior counsel that with the expiry of the time lines prescribed in the IBC for the CIRP, the only option that would now remain is to liquidate the corporate debtor. Mr Nariman submitted that liquidation is not in the interest of the home buyers. In that event, in his submission, the only way out would be to obviate the consequence of liquidation by envisaging an arrangement outside the provisions of the IBC and not under it. It has been submitted that an ongoing project which has provided over 11,200 homes to home buyers in 79 towers should not, as far as possible, be stopped midway since that would affect the interests of the remaining 21,532 buyers who await possession. Their rights, it has been urged, are recognised and preserved under the Real Estate (Regulation and Development) Act 2016. Mr Nariman submitted that unless a group of independent professionals, to be appointed by this Court, comes to a conclusion that it is not financially ....
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....ate debtor. The second option which has been proposed by learned senior counsel for the IRP forms the basis of the additional submissions tendered by Mr Nariman. As we have noted, Mr Nariman urged that on the expiry of the time lines prescribed in the IBC for the completion of the resolution process the only available alternative is to proceed outside the provisions of the IBC. 39 In considering the rival submissions, several important facets of the case need to be underscored. First and foremost, the CIRP was initiated on 9 August 2017, following the order of the NCLT admitting the proceedings. The period of 180 days for concluding the CIRP come to an end on 6 February 2018 and the extended period ended on 12 May 2018. When the CIRP was initiated and until the period of 270 days concluded, the home buyers did not have the status of financial creditors under the provisions of the IBC. They had no statutory voting rights in the CoC. Under the interim directions of this Court, a workable arrangement was sought to be put into place by appointing a representative of the home buyers on the CoC to facilitate their interests being duly borne in mind. But the point to be noted is tha....
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....f the Court appointing a Committee to supervise the resolution process outside the IBC will involve the Court in an insuperable burden of evaluating intricate matters of financial expertise on which Parliament has legislated to create specific mechanisms. We are emphatically of the view that it would not be appropriate for the Court to appoint a Committee to oversee the CIRP and assume the task of supervising the work of the Committee. We must particularly be careful not to supplant the mechanisms which have been laid down in the IBC by substituting them with a mechanism under judicial directions. Such a course of action would in our view not be consistent with the need to ensure complete justice under Article 142, under the regime of law. Hence, the power under Article 142 should be utilised at the present stage for the limited purpose of recommencing the resolution process afresh from the stage of appointment of IRP by the order dated 9 August 2017 and resultantly renew the period which has been prescribed for the completion of the resolution process. We have furnished above, the reasons for doing so. Chief amongst them is the fact that in the present case the period of 270 days ....
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....home buyers who seek refund would be manifestly improper and cause injustice to the secured creditors since it would amount to a preferential disbursement to a class of creditors. Once we have taken recourse to the discipline of the IBC, it is necessary that its statutory provisions be followed to facilitate the conclusion of the resolution process. Secondly, the figures which have been made available presently, following the opening of the web portal by the amicus curiae, indicate that 8% of the home buyers have sought a refund of their monies while 92% would evidently prefer possession of the homes which they have purchased. We cannot be unmindful of the interests of 92% of the home buyers many of whom would also have obtained loans to secure a home. They would have a legitimate grievance if the corpus of Rs. 750 crores (together with accrued interest) is distributed to the home buyers who seek a refund. The purpose of the process envisaged by the IBC for the evaluation and approval of a resolution plan is to form a composite approach to deal with the financial situation of the corporate debtor. Allowing a refund to one class of financial creditors will not be in the overall inte....
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....d with a supervisory role, and the power to issue binding directions. The position of the RBI as an expert regulatory body particularly in matters of economic and financial policy has been reiterated in several decisions of this Court: [R.K.Garg v Union of India (1981) 4 SCC 675 at para 19, Peerless General Finance and Investment Co.Ltd. v RBI (1992) 2 SCC 343 at para 31, TN Generation and Distribution Corpn. Ltd. v CSEPDI-Trishe Consortium (2017) 4 SCC 318 at para 36"]. 41 JAL was classified under the SMA - II category (demands overdue for more than 60 days) by banks as early as on 3 October 2014 and as an NPA since 31 March 2015. We agree with the submission of the RBI that any further delay in resolution would adversely impact a viable resolution being found for JAL and JIL. The facts which have emerged before the Court from the application filed by the RBI clearly indicate the financial distress of JAL and JIL. The apprehensions of the home-buyers in regard to their financial incapacity is borne out by RBI, as a responsible institution has urged before the Court. The IBC has been enacted in the form of a comprehensive bankruptcy law and with a specific legislative intent. Wi....