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TaxTMI 
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2021 (12) TMI 188
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....alling or defaming the parties herein; (iv) Pass any other or further order(s) as may be deemed fit and proper in the interest of justice." 2. The facts mentioned in the application in brief are as follows: i. On an application moved by Dynacon Projects Private Limited filed under Section 9 of the IBC, vide order dated 31.10.2019, CIRP was initiated against the Corporate Debtor and subsequently, Mr. Kamlesh Kumar Gupta was appointed as the representative of Financial Creditors (Home/Shop Buyers) vide order dated 12.12.2019. The appointment of Mr. Nilesh Sharma, as Resolution Professional of the Corporate Debtor was confirmed vide order dated 09.01.2020. ii. It is submitted that the applicants are allottees in Canary Greens Project and their claims have been admitted by the Resolution Professional. It is further submitted that in the 3rd meeting of CoC held on 15.02.2020, the agenda for publication of invitation for Expression of Interest was put up for consideration. The representative of the Associations sought to add an additional category of the Cooperative formed by the Home Buyers. The requirement was that such cooperatives should consist of atleast 100 members and thei....
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....d that for the purpose of consideration of past track record, the Association has appointed promoters of Breeze Builders & Developers Pvt. Ltd. as their official representatives and have submitted the individual experience of the promoters to be considered for past track record. It has been alleged that the purpose of keeping real estate company at bay and not including it as Resolution Applicant is to overcome the distinction created by them in RFRP with respect to eligibility, earnest money and Performance Bank Guarantee. 3. Further, the applicant herein has pointed out following infirmities in the Resolution Plan: * It is submitted that majority of the funds and payments in the Resolution Plan as submitted by the Association, are envisaged from the facts that such payments shall be sought from the homebuyers in due course. It is submitted that their Resolution Plan does not come with the details as sought in the EOI and Invitation to Resolution Plan detailing the dues and debts of their members and each of the homebuyers. It is submitted that such details were mandatory as per the RFRP and EOI, and especially necessary for the consideration of the CoC due to the fact that the....
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....nal in nature. The payment envisaged is from recovery of the dues from the allotees and only Rs. 25 crores is being provided as infused amount. Further, their ability to be a Resolution Applicant is dependent upon the amendment to be made in their byelaws, and therefore the Resolution Plan is conditioned upon such amendments made to their byelaws. c) There is a conflict of interest - In light of the association being funded by a Real estate company which did not go through the virus of the conditions laid down in the RFRP and invitation for EOI. 4. It is submitted that in light of the above-mentioned defects, the present resolution plan cannot be placed before CoC by the Resolution professional under Section 30(3) of the Code, as the Resolution Plans are violative of Section 30(2)(e) & 30(2)(f) of the Code. Furthermore, it is submitted that the Association has failed to show under Regulation 38(e) if it is capable of handling the restructuring of the Company. 5. It is further pointed out that the Resolution Professional in the CoC meeting held on 04.08.2021 also informed the Allottees that even the Resolution Professional had received various complaints from certain Allottees w....
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....gence of views within a class may exist but the vote being only of a class, disentitles any individual member of a class to seek interference of proceedings under IBC. iv. It is also stated that the prayers as sought by the Applicants in the application have been rendered infructuous as on date. As per the respondent's averments, the Applicant have prayed for directions to not submit the Resolution Plan before the CoC, stay the process of voting on the two Resolution Plans submitted before the CoC and restrain the members of the Association from name calling or defaming the parties. It is stated that as the two Resolution Plans have already been placed before the CoC and after consideration, the CoC has already voted upon and approved one of the Resolution Plans. v. It is further stated that the prayers as regards direction upon the members of the Association from name calling or defaming the parties is a baseless prayer without any substantiation or evidence in support. It is further submitted that such prayers cannot be granted as the parties upon which the said prayers are sought against, have not been arrayed parties. vi. It is further submitted that the eligibility c....
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.... 96.93% majority, hence in terms of Section 25A(3A) of the IBC, since the Applicants belongs to the class of home buyers being represented through Authorised Representative in the CoC, the decision of the majority of such class is binding on the Applicants. 9. It is further submitted that the CoC is the supreme authority to decide the eligibility criteria and RFRP in a CIRP. It is only the CoC, which assesses the operations of the Corporate Debtor keeping in view the complexities involved and fixes such requirements. Reliance have been placed upon judgement of Hon'ble NCLAT in the matter of Kannan Tiruvengandam v. M.K. Shah Exports Ltd. & Ors. Company Appeal (AT) (Insolvency) No. 203 of 2018 order dated 26.07.2018 and in the matter of M Financial Asset Reconstruction Company Ltd. V. M/s. Well-Do Holdings and Exports Pvt. Ltd. & Ors. Company Appeal (AT) (Insolvency) No. 134 of 2019 order dated 08.04.2019. 10. The applicants in their written submission have submitted that undue benefit given to the consortium in the Evaluation matrix bid with respect to upfront cash infusion, networth value and past experiences, even though the resolution plan does not provide for any of those ....
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....peat the same. 18. On perusal of the averments made in the application and written submissions filed on behalf of the parties, it is seen that the applicants belong to the "class of home buyers" and being the class of creditors, they have filed this application to stay the process of voting to be held on 10.08.2021 on the two resolution plans and also a direction to the resolution professional not to submit the resolution plan. 19. At this juncture, we would like to refer to the contention raised on behalf of the resolution professional. It is seen that, by filing the written submission, the Resolution Professional has submitted that the present application has becomes infructuous because the resolution plan has already been approved by the CoC through e-voting on 17.08.2021 with 96.93% of the voting share of the CoC. 20. Ld. Counsel for the resolution professional further referred to Section 25 (3A) and submitted that the authorized representative, as per sub Section 6A of Section 21, shall cast his vote on behalf of all the financial creditors he represents in accordance with the decision taken by a vote of more than fifty per cent of the voting share of the financial creditor....