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2021 (7) TMI 613
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....einafter to be referred as the "Corporate Debtor"), filed under Section 60(5) of the Insolvency & Bankruptcy Code, 2016 (IBC, 2016), seeking the following reliefs: i. To declare the communication dated 14.02.2020 issued by the 2nd Respondent herein as null and void and consequently direct the Resolution Professional to reject the claim submitted by the 1st Respondent herein; or in the alternate; ii. To declare the 1st Respondent's claim as erroneous and consequently direct the 2nd Respondent herein to reconstitute the CoC by admitting the claim of the 1st Respondent herein in terms of para 9.66 of the Award dated 31.01.2018 in the Arbitration Proceedings arising out of Subscription Agreement dated 23.03.2011." 3. BRIEF FACTS OF THE CASE:- a. During the year 2012, the Corporate Debtor embarked upon an ambitious project to develop 4.32 Acres in Kottivakkam, Chennai. The Corporate Debtor is a subsidiary of M/s. Real Value Promoters Private Limited. b. The Applicant invested in the said property floated by the Corporate Debtor by taking loans from the banks and also by investing their own money and also paid necessary fees for booking the flat....
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....therefore the 1st Respondent cannot validly seek for any conversion. Further, in pursuance of he said award, the 1st Respondent/claimant was entitled to certain amount to be paid by the Corporate Debtor. The operative portion of the said Award is extracted hereunder: i) It is declared that the claimant became entitled to redeem the Debentures on 2/2/2016 for an amount of Rs. 1,43,40,00,000/- (Rupees One Hundred Forty Three Crore Forty Lakhs only). The claimant is also entitled to Rs. 11,92,56,626/- (Rupees Eleven Crores Ninety Two Lakhs Fifty Six Thousand Six Hundred Twenty Six only) towards interest on the said amount @ 4% p.a. on daily basis from 3/2/2016 till the date of this award i.e., 31/1/2018, Thus, totally the claimant is entitled for Rs. 1,55,32,56,626/- (Rupees One Hundred Fifty Five Crores Thirty Two Lakhs Fifty Six Thousand Six Hundred Twenty Six only) as on 31/1/2018. This amount shall carry compound interest @ 4% p.a. on daily basis till expiry of 3 (three) months from the date of the award or the payment by the respondents, whichever is earlier and interest @ 12% p.a., after expiry of 3 (three) months from the date of this award on the outstanding amounts. ....
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....rther, it was contended by the Learned Counsel for the Applicant that the Remainder Amount in the instant case is NIL. Therefore, under the terms of the Award, the 1st Respondent can, at the highest, claim to be a creditor only to the extent of the Remainder Amount. 6. It was also submitted that one of the CoC members has made an oral statement that the Remainder Amount was only to the tune of Rs. 1,50,000/-. However, it was submitted that the claim of the Respondent has been admitted to the tune of Rs. 182 crore by the erstwhile IRP. 7. Further, the Learned Counsel for the Applicant submitted that the other Respondents to the Arbitral Award are also liable to satisfy the claim of the 1st Respondent and the 1st Respondent herein, for the reasons best known to them, has not taken any action for recovery as against M/s. Real Value Promoters Private Limited and its individual promoters. 8. It was also submitted that an Application under Section 34 of the Arbitration and Conciliation Act, 1996 was filed by the Corporate Debtor and the same is pending adjudication before the Hon'ble High Court of Bombay vide CARBP No. 705/2019 and 309/2019. 9. The Learned Counsel for the....
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....2nd Respondent as the Resolution Professional of the Corporate Debtor. It is seen that the 2nd Respondent after taking charge on 24.11.2019 also held that the 1st Respondent is a Related Party to the Corporate Debtor and hence they cannot exercise any voting right. Aggrieved by the said classification made by the 2nd Respondent, the 1st Respondent has filed another MA/1360/2019 challenging the decision of the 2nd Respondent. 13. In the said Application, the Applicant has filed an intervening Application vide SR. No. 1563/2019. Thus, the issue as to whether the 1st Respondent is a Related Party to the Corporate Debtor was decided by this Tribunal vide its Order dated 03.01.2020 in and by which, it was held by this Tribunal that the 1st Respondent is not a Related Party to the Corporate Debtor. Aggrieved by the said decision, the Applicant herein has filed an Appeal before the Hon'ble NCLAT in Comp. App (AT) (Ins) No. 252 of 2020 and the same is pending for adjudication. In the meantime, the meetings of the CoC were convened on 24.01.2020, 17.02.2020 and 16.03.2020 and it is the grievance of the Applicant that the 1st Respondent is exercising its voting right to the tune of Rs....
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....t in its entirety to the tune of Rs. 182 crore. REPLY OF THE 1ST RESPONDENT : - 19. The 1st Respondent denied all the allegations made by the Applicant and has put forth the following grounds and in order to say that the Application as filed by the Applicant is not maintainable. 20. It was submitted by the Learned Counsel for the Respondent that the present Application is not maintainable in view of the fact that the Applicant association has no locus-standi. It was submitted by the Learned Counsel for the 1st Respondent that the Applicant association has averred that it is an association of the Homebuyers registered under the Societies Registration Act. However, no information has been provided with respect to how many members comprise the purported Applicant association and how many members have consented for the formation of the said association and for filing of the present Application. It was further submitted that the Applicant is not part of the CoC and it is not an aggrieved party. However, in the CoC meeting, the Homebuyers are being represented only by the Authorised Representative under the IBC, 2016 and Regulations framed thereunder stipulate that only the said....
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....he Corporate Debtor itself and not by the 1st Respondent in whose favour the Award has been rendered. Therefore, all the papers and proceedings in relation to the said arbitration proceedings are available with the Corporate Debtor and consequently with the 2nd Respondent in-charge of the affairs of the Corporate Debtor. Further it was submitted that the 1st Respondent vide its e-mail dated 02.04.2020 addressed to the 2nd Respondent, has informed about the pendency of the said arbitration proceedings before the Hon'ble High Court of Bombay. Therefore, it was submitted that the contention of the Applicant that the debt of the 1st Respondent is disputed is wholly misplaced and baseless. 24. The Learned Counsel for the 1st Respondent submitted that the present petition is an abuse of process of law, since the Applicant is seeking to re-litigate the issue which has been already decided. In this regard, it was submitted that the claim of the 1st Respondent was taken on record by the 3rd Respondent. However, the 3rd Respondent as well as the 2nd Respondent sought to prevent the 1st Respondent from participating in the CoC meeting on the ground that the 1st Respondent is a Related ....
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....pute in relation to the voting rights between the parties, in all respects, the Applicants are having a locus to file and maintain the present Application. (II) ON THE ISSUE OF RELATED PARTY: 29. It is seen that this Tribunal vide its Order dated 03.01.2020 has already held that the 1st Respondent is NOT a Related Party to the Corporate Debtor. Aggrieved by the said decision, the Applicant herein has already filed an Appeal before the Hon'ble NCLAT in Comp. App (AT) (Ins) No. 252 of 2020 and the same is pending for adjudication. Thus, the issue as to whether the 1st Respondent is a Related party or not a Related Party is a question which is to be decided by the Hon'ble Appellate Tribunal and hence, this Tribunal does not wish to express any opinion in relation to the same (III) ARBITRAL AWARD:- 30. The 1st Respondent in the present Application arrayed as the Claimant in the arbitration proceedings namely, ASK Investment Managers Pvt. Ltd. The parties to the said arbitration proceedings are; (i) The 1st Respondent viz., Ambojini Property Developers Pvt. Ltd; (ii) The 2nd Respondent viz., Real Value Promoters Pvt. Ltd., who is the holding company....
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.... be paid by the Promoters and the Company to the Investor in the following manner: a) The Promoters and the Company are in the process of availing funding facilities from Banks, Financial Institutions, Venture Capital Funds, Alternative Investment Funds etc. In and out of the funds received, the first tranche of the amount will be paid to the Investor on or before 31st July 2015 as mentioned above; b) The second tranche of the amount will be paid by the Promoters and the Company to the Investor from their other source of income on or before 31st August 2015; c) The third & fourth tranches of the amount will be paid by the Promoters and the Company to the Investor from the sale proceeds to the project; It is hereby clarified that if the Part Sale Consideration due and payable on any of the aforesaid Appointed Date(s) is paid before the respective Appointed Date, then the Part Sale Consideration due and payable on the Fourth Appointed Date shall be reduced appropriately such that as on the Closing Date along with all principal sums paid on the Investor Securities including any premium, and after factoring in all interest paid to the Investors, prov....
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....wed by the Promoters and the Company and the issuer of the cheques acting jointly and severally to the Investors. 2.4 The Promoters and the Company agree that the sums of interest and the Sale Consideration are mutually agreed and are fair and equitable. 2.5 Upon receipt of the entire sums of interest and Sale Consideration, the Investor Securities shall be transferred and/or redeemed/bought back in pro rata basis. It is further clarified that, in case of and to the extent of acquisition of the Investors Securities by the Promoters, the applicable stamp duty on transfer of Investor Securities shall be borne and paid by the Promoters and the Investors shall not be liable for the same. 3.4 Each of the Promoters and Company acknowledge and agree that a default of any obligations or other terms by them of this Exit Agreement shall be an Event of Default under the SSHA and that this Exit Agreement shall be a "Transaction Document" for the purposes of the SSHA. 3.7 The Parties agree that none of them have in any manner waived any of its rights and interests in the SSHA, by the execution of this Exit Agreement." Clause 1.1 of Exit Agreement defined &....
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....dent/Corporate Debtor to jointly and severally pay the aforesaid amount of Rs. 1,55,32,56,626/-. 37. In para 9.65 of the Award, it has been stated that in case the Respondent/Corporate Debtor failed to comply with the said Award within three (3) months, the Claimant/1st Respondent shall be entitled to interest @ 12% per annum from expiry of three (3) months from the date of Award till the date of payment. In para 9.66 of the Award, the manner in which the payment has to be paid by the 1st Respondent has been set out. 38. Perusal of the said Award dated 31.01.2018 would manifest the fact that the amount which is payable by the Corporate Debtor to the 1st Respondent has been crystallized in para 9.64. Further, in para 9.65, the interest which is payable by the Corporate Debtor to the 1st Respondent has been arrived at in case there is a default in repayment of the said amount to the 1st Respondent within a period of three (3) months from the date of the Award till the date of payment. 39. The crux and gravamen of the contention being raised by the Applicant in the present Application is that as per the Award the 1st Respondent is entitled only to the Remainder Amount in term....