TaxTMI 
TaxTMI 
2023 (11) TMI 267
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....974 of 2021 filed by the Appellant. The IA was filed by the Appellant objecting to the Resolution Plan submitted by M/s Kabra Estate and Investment Consultant (Respondent No.2 herein), which objection came to be rejected by the impugned order. The Appellant aggrieved by the order, has come up in this Appeal. 2. The brief facts necessary to be noticed for deciding the Appeal are: (i) The Corporate Debtor - Sivana Reality Private Limited launched a Project known as 'Samriddhi Garden' at Bhandup, Mumbai. (ii) On 15.09.2017, LIC Housing Finance Limited ("LICHFL") sanctioned a Term Loan Facility of Rs.130 crores to the Corporate Debtor. The Project of the Corporate Debtor 'Samriddhi Garden' was mortgaged to the LICHFL. In terms of the Mortgaged Deed any sale or third party right could have been created by the Corporate Debtor only after the prior written consent/ NOC from LICHFL. On 09.08.2018, the Appellant - Fervent Synergies Limited and the Corporate Debtor entered into 10 separate Agreements for sale of 10 flats in the Project being developed by the Corporate Debtor. (iii) On 11.08.2020, Corporate Insolvency Resolution Process ("CIRP") was initiated aga....
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....a Ghosh, learned Counsel appearing for LIC HFL. 4. The learned Counsel for the Appellant challenging the impugned order, submits that the Adjudicating Authority has erroneously rejected the IA filed by the Appellant. It is submitted that the RP having admitted the claim of the Appellant filed with regard to 10 flats, as was communicated vide email dated 30.06.2021, there was no question to treat the admitted claim of the Appellant differently from other Homebuyers. It is submitted that the Resolution Plan does not recognize the 10 flats sold to the Appellant on the ground that LICHFL has not given NOC in respect of the said flats. It is submitted that Resolution Plan discriminates between Homebuyers, who belong to one class of creditors. The classification between affected and unaffected Homebuyers is erroneous and illegal. It is submitted that claim of the Appellant having been admitted and the Appellant having acted by the representation made by the RP, the Respondents are bound by principle of promissory estoppel and cannot deny the claim, which was admitted by the RP. It is submitted that principle of promissory estoppel is fully attracted in the present case. The learned Co....
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....without obtaining of NOC from LICHFL. It is submitted that the allotment in favour of the Appellant was not a valid allotment and hence, those allottees, who have been allotted flats without obtaining the NOC rightly have been separately dealt in the Resolution Plan. 8. We have considered the submissions of learned Counsel for the parties and perused the records. 9. The Resolution Plan submitted by Respondent No.2, has been approved by the CoC with 99.96% vote. The Appellant having voted as a Homebuyer, who is part of the CoC and out of 272 Homebuyers, 204 Homebuyers have voted in favour of the Resolution Plan and thus, the Plan has been approved by 99.96% vote. The Hon'ble Supreme Court in Jaypee Kensington Boulevard Apartments (supra) has laid down that the Homebuyers as a class shall be deemed to have voted in favour of approval of the Resolution Plan and once having voted so, any particular constituent of that class cannot be heard in opposition to the plan by way of objection or appeal. In paragraph 214, following has been laid down: "214. The suggestion about the so-called statutory right of appeal has only been noted to be rejected. The homebuyers as a class s....
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....e Hon'ble Supreme Court in Motilal Padampat Sugar Mills Co. Ltd. (supra). The Hon'ble Supreme Court in the above case has elaborated the doctrine of promissory estoppel, its nature, scope and extent. In paragraph 19 of the judgment, the Hon'ble Supreme Court has laid down the following: "19. When we turn to the Indian law on the subject it is heartening to find that in India not only has the doctrine of promissory estoppel been adopted in its fullness but it has been recognized as affording a cause of action to the person to whom the promise is made. The requirement of consideration has not been allowed to stand in the way of enforcement of such promise. The doctrine of promissory estoppel has also been applied against the Government and the defence based on executive necessity has been categorically negatived. It is remarkable that as far back as 1880, long before the doctrine of promissory estoppel was formulated by Denning, J., in England, a Division Bench of two English Judges in the Calcutta High Court applied the doctrine of promissory estoppel and recognised a cause of action founded upon it in the Ganges Manufacturing Co. v. Sourujmull [(1880) ILR 5 Cal 669 : 5 CLR....
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....ct or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation. 3. Since an estoppel will not arise unless the party claiming the benefit of it has adopted the assumption as the basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure from the assumption be permitted, the resolution of an issue of estoppel by conduct will involve an examination of the relevant belief, actions and position of that party. 4. The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it. The cases indicate four main, but not exhaustive, categories in which an affirmative answer to that question may be justified, namely, where that party: (a) has induced the assumption by express or implied representation; (b) has entered into contractual or other material relations with the ot....
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....e of that fact or state of affairs. In some cases, the estoppel may operate to fashion an assumed state of affairs which will found relief (under ordinary principles) which gives effect to the assumption itself (e.g. where the defendant in an action for a declaration of trust is estopped from denying the existence of the trust). 8. The recognition of estoppel by conduct as a doctrine operating consistently in law and equity and the prevalence of equity in a Judicature Act system combine to give the whole doctrine a degree of flexibility which it might lack if it were an exclusively common law doctrine. In particular, the prima facie entitlement to relief based upon the assumed state of affairs will be qualified in a case where such relief would exceed what could be justified by the requirements of good conscience and would be unjust to the estopped party. In such a case, relief framed on the basis of the assumed state of affairs represents the outer limits within which the relief appropriate to do justice between the parties should be framed." (emphasis supplied)" 15. The question which needs to be answered in the present case is whether the doctrine of promiss....