TaxTMI 
TaxTMI 
2022 (7) TMI 1071
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....tech Limited by which order the management of the Unitech Limited stands superseded and as proposed by the Union Government, a new Board of Directors was constituted by the order of the Hon'ble Supreme Court. The Hon'ble Supreme Court further directed that pending further orders, there shall be Moratorium against the institution of proceedings against Unitech Limited and its subsidiaries. By subsequent order dated 24.03.2021, certain further directions were given by the Hon'ble Supreme Court. An Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 ("IBC" for short) was filed by the Respondent No.1 to Respondent No.14 before the Adjudicating Authority on 27.08.2020 to initiate Corporate Insolvency Resolution Process (CIRP) against the Appellant. In the said Application, I.A No. 5608 of 2021 was filed by the Appellant praying that proceedings in Section 7 Application be adjourned sine die in view of the Moratorium passed by the Hon'ble Supreme Court vide order dated 20.01.2020 and order dated 24.03.2021 in Bhupinder Singh Vs. Unitech Limited. The Adjudicating Authority heard the Counsel for the parties and by impugned order has rejected the Application. This Appe....
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....considered the submissions of the Learned Counsel for the parties and perused the record. 5. We may first notice the order of the Hon'ble Supreme Court dated 20.01.2020 as well as order dated 24.03.2021 passed in Civil Appeal No. 10856/2016- Bhupinder Singh Vs. Unitech Limited. By the said order, the Hon'ble Supreme Court issued various directions which directions also included direction to notify the new Board of Directors of Unitech Limited. Direction No.(vii) which is relevant for the present case is as follows:- "(vii) Pending further orders of this Court, there shall be a moratorium against the institution of proceedings against Unitech Limited and its subsidiaries. The moratorium shall also extend to existing proceedings against the company as well as the enforcement of orders that may have been passed against the company." 6. The next order of the Hon'ble Supreme Court which need to be noticed is order dated 24.03.2021 where in para 2, the Hon'ble Supreme Court issued following directions:- "2. The Learned Additional Solicitor General has explained the import of the directions which have been sought in respect of the above categories. Certain directions have been sough....
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....ech Limited nominated directors of the Board of Directors of the Appellant. In the Appeal, letter dated 17.06.2021 written by the Chairman and Managing Director of the Board of Directors of the Unitech Limited has been brought on the record which clearly mentions the appointment of new Directors in the Appellant. Paragraph 5 of the letter is as follows:- "5. Now, in exercise of the powers vested in me, emanating from the Order dated 24.03.2021 passed by the Hon'ble Supreme Court and authority vested in me by the resolution passed by the Board of Directors of Unitech Group in its meeting held on 28.01.2020, I, Y.S. Malik, IAS (Rtd.), Chairman & Managing Director, Unitech Group Companies, hereby order removal of the Directors nominated by the erstwhile Management on the Board of Directors of M/s. Entertainment City Limited and nominate the following persons in their place: Existing Directors Newly appointed Directors Mr. Vinod Hingorani Mr. Ashok Gupta, IPS (Rtd), formerly Director General of Police, Tamil Nadu Mr. Gaurav Puri Mr. Ashok Kumar Yadav, IAS (Rtd), Chief Operating Officer, Unitech Group 9. Extra-ordinary General Meeting of the Appellant was also held on 28.07.202....
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....i) Infrastructure Development Finance Corporation Limited and any fund, collective investment scheme, trust, partnership (including without limitation any co-investment partnership), special purpose or other vehicle or any subsidiary or Affiliate of any of the foregoing, in which any member or subsidiary of Infrastructure Development Finance Corporation Limited is a general or limiter partner, shareholder, investment manager or advisor, member of a management or investment committee, nominee, custodian, trustee or unit holder." 11. From the facts of the present case, it is clear that Unitech Holdings Limited a wholly owned subsidiary of Unitech Limited has shareholding to the extent of 41.95% in the Appellant. 12. In view of the definition given above, the Appellant is clearly an 'affiliate'. Thus, subsequent events which have been brought on the record by Appellant clearly indicate that Unitech Holdings Limited exercises control over the Appellant and Board of Directors of the Unitech Limited has nominated Directors in the Board of Directors of the Appellant. In view of the order dated 20.01.2020, the Resolution Plan with regard to Unitech Limited was to be filed in the Hon'ble ....