2023 (4) TMI 508

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....andit, MR. Satal Jain , & Mr. Nipun Gautam , for RP . Mr. Amar Vivek Advocate for R2 . ORDER As per : Justice Rakesh Kumar Jain ( Oral ) M/s.Concord Infrastructure Pvt. Ltd has filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred as to 'the Code') r/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016 (hereinafter referred as to as 'The Rules') against M/s. Shubhkamna Buildtech Private Limited (Corporate Debtor) before the National Company Law Tribunal, New Delhi Bench -IV (hereinafter referred as to as 'The Adjudicating Authority), which was admitted on 26.11.2018 and Ms. Gurkamal Hora Arora was appointed as Interim Resolution Professional....

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.... "11.11.2022: Learned Senior Counsel for the Appellants confine his submission only to the effect that a clause is to be added in the plan regarding escalation i.e. Escalation Clause. He submits that the Adjudicating Authority ought to have remitted the plan to the Committee of Creditors (CoC) for limited consideration and Appellant had not proposed to withdraw from the plan and is fully ready to implement the plan subject to consideration of the said Escalation Clause. 2. Shri Abhishek Anand, Learned Counsel appearing for the Respondent submits that there is no CoC in existence as on date, hence, there is no occasion for remitting the plan and it is the Monitoring Committee which is only functioning. 3. In facts of t....

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.... Monitoring Committee was held on 07.12.2022 in which the Authorized Representative requested that the escalation cost as proposed by the Appellant, may be reduced. 7. It is further averred in the affidavit that after the meeting dated 07.12.2022, Class of Creditors through their AR sent two proposals to the Appellant which are as follows: "Set 1 As Per AR, 72 Allottees have forward this set of proposal "Dear Sir Meeting of SRA with Homebuyers' Observers held on 20.12.2022 The Observers of allottes had informal meeting with SRA on the escalation clause on 20.12.2022 and the meeting did not result in any agreed settlement. However, observers and many allottees after consultation and fu....

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....e excess amount on pro-rate basis. 2.Allottees are agreeable to a one time escalation cost of Rs. 100/- per sqft over what agreed in Resolution Plan. This amount will be payable at the time of delivery of unit only as per specification in the Resolution Plan. 3.Delivery of units have to be made as per timelines in the approved Resolution Plan. In case if the delivery of units is delayed, then this escalation of Rs. 100/- per sqft shall not be payable. 4.There will not be any further escalation. 5.SRA will not further litigate for escalation upon acceptance e and communicate about acceptance in NCLAT." 8. It is further averred in the affidavit that on 11.10.2023, while responding to the email dated 10.1....

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....he Act and it was held as under : 11. It is pertinent to mention that the following order was passed on 13.02.2023: "13.02.2023: Counsel for Respondent No.1 has submitted that an affidavit has been filed vide Diary No. 42946 dated 27.01.2023 for placing on record the decision taken by the 'Class of Creditors' by which they have approved the proposal of the Appellant for the escalation of the cost of construction to the extent of Rs. 192/- per square feet of the super area. However, keeping in view the fact that in this case, so far no notice has been issued to any of the Respondents, therefore, it would be in the interest of justice that a formal notice is issued to all the Respondents. Issue Notice to all Respondents. ....