TaxTMI 
TaxTMI 
2023 (6) TMI 14
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....D)/2019, filed by the appellant under section 65 read with section 60(5) of the IBC. 2. The Appellant has assailed the Impugned Order on the ground that the Adjudicating Authority has refused to allow the Appellant to intervene and participate in the proceedings of CP (IB) No. 2356(ND)/2019 wherein the Appellant had contended that since the section 9 application for initiating Corporate Insolvency Resolution Process (in short "CIRP") against the M/s Ascot Projects Private Limited (in short "Ascot") was filed fraudulently and with malicious intention to defeat the ongoing CIRP of M/s Intellicity Business Park Ltd. whose resolution plan was approved by the Committee of Creditors (in short "CoC") in July 2020 and is pending approval before the Adjudicating Authority. 3. The Appellant is a society of unit buyers in the project of M/s Intellicity Business Park Ltd. (in short "Intellicity Business Park"). The Appellant has submitted that the Respondent No.1 in the Appeal, which is the Corporate Debtor M/s Ascot Projects Pvt. Ltd., is a wholly owned subsidiary of the Respondent No.3 - M/s Intellicity Business Park Ltd., which is holding 99.94% shares of M/s Ascot Projects Pvt. Ltd. and ....
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.... who is considering the Section 7 Application CP (IB) No. 2356(ND)/2019 relating to Ascot Projects Pvt. Ltd. but the Resolution Professional of Intellicity Business Park did not take any step regarding the same, and therefore the Appellant by filing Intervention Application No. 739(ND)/2021 has sought to intervene in the matter in order to bring to the knowledge of the Adjudicating Authority the fraud being played by Ascot Projects and Airwil Infra in collusion to defeat the successful resolution of Intellicity Business Park, in which the members of the Appellant have intimate interest. 6. The Appellant has further stated that despite considering the facts and allegations made in IA No. 739(ND)/2021 by which it had sought permission to intervene in Section 7 application against Ascot Projects, the Adjudicating Authority has, merely on the ground that a "third person" is not a necessary party in Section 7 proceedings, rejected the application and dismissed IA No. 739(ND)/2021. 7. We have heard the arguments advanced by the learned counsels for the rival parties and also perused the record with able assistance from the learned counsels. 8. It is noted that Respondents No. 5, 6 and....
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....Park. He has further claimed that the directors of M/s Ascot Projects Pvt. Ltd. have entered into a sham settlement with another group company M/s Airwil Infra Ltd. and as a consequence of the settlement, Ascot Projects had issued post-dated cheques in favour of M/s Airwil Infra Ltd. with the knowledge that the cheques will get dishonoured, thereby petition under section 7 application against Ascot Projects was revived and thus a fraud has been played the financial creditors and homebuyers of company Intellicity Business Park. He has claimed that such an action by Airwil Infra of filing a section 7 application against Ascot Projects has been done with intention to defraud the unit buyers and creditors of Intellicity Business Park, which fact was communicated to the Resolution Professional of Intellicity Business Park to bring it to the knowledge of the Adjudicating Authority considering the section 7 application regarding M/s Ascot Projects Pvt. Ltd., which unfortunately was not done by the Resolution Professional and therefore, the Appellant was forced to file intervention application being IA No. 739(ND)/2021, wherein the impugned order came to be passed rejecting the prayer in t....
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....denied that the interest of the unit buyers and creditors of Intellicity Business Park is intricately and closely linked with the land which is held in lease by company M/s Ascot Projects Pvt. Ltd. Therefore the continuation of Ascot Projects Pvt. Ltd. as a financially healthy and viable company is a necessity for successful insolvency resolution of Intellicity Business Park. 16. We also note that issue of alleged fraud in the filing of Section 7 application against Ascot Projects was brought to the notice of the Adjudicating Authority through IA No. 739(ND)/2021 (attached at pp 42-56 of appeal paper book), which was filed under Sections 60(5) and 65 of the IBC. A perusal of the application makes it clear that the Appellant Airwil Intellicity Social Welfare Society had pleaded the matter relating to alleged fraud being played by Airwil Infra Ltd. on the unit holders and creditors of M/s Intellicity Business Park Ltd. and also the collusion of its ex-directors Mr. Sanjay Kumar, Mr. Manoj Kumar Chaudhary and Mr. Kamal Aggarwal (who are the current directors of M/s Airwil Infra Ltd.) in this regard. 17. We note and follow the judgment of Hon'ble Supreme Court in the matter of Beacon....
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....but may extend to one crore rupees. (2) If, any person initiates voluntary liquidation proceedings with the intent to defraud any person, the adjudicating authority may impose upon such person a penalty which shall not be less than one lakh rupees but may extend to one crore rupees." 7. Considering the provision of Section 65 of the IBC, it is necessary for the Adjudicating Authority in case such an allegation is raised to go into the same. In case, such an objection is raised or application is filed before the Adjudicating Authority, obviously, it has to be dealt with in accordance with law. The plea of collusion could not have been raised for the first time in the appeal before the NCLAT or before this Court in this appeal. Thus, we relegate the appellant to the remedy before the Adjudicating Authority. 8. In case, a proper application is filed, aspect whether the proceedings have been initiated in collusive manner will be looked into, in accordance with law and the appropriate orders have to be passed, considering the facts and circumstances of the case. We have made it clear that we have not commented on the merit of the case. We set aside the impugned order passed by the....