TaxTMI 
TaxTMI 
2024 (5) TMI 470
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....wal and Ms. Akshita Singh, Advocate for RP Mr. Rachit Mittal, Mr. Parish Mishra and Mr. Adarsh Srivastava, Advocate for R-2 JUDGMENT ASHOK BHUSHAN , J. These three Appeal(s) have been filed against the same order dated 05.03.2024 passed by National Company Law Tribunal, New Delhi, Principal Bench in IA No.2518/2021, IA No.3615/2022 and IA No.4172/2022, by which order, all the aforesaid IAs were disposed of and with respect to other IAs, the Adjudicating Authority directed the same to be listed on 30.04.2024. Aggrieved by the order dated 05.03.2024, these Appeal(s) have been filed. 2. We may first notice the facts giving rise to these Appeal(s). Facts in Company Appeal (AT) (Insolvency) No. 795 of 2024 are noted first and facts in other two Appeal(s) shall be separately noticed: Company Appeal (AT) (Insolvency) No. 795 of 2024 (i) The Appellant claims to have paid consideration towards allotment of 50 flats in the Project of M/s Today Homes Noida Pvt. Ltd., i.e., 'Ridge Residency', Sector-135, Noida. The Appellant submits that he was given possession of 09 flats and rest 41 flats were reflected in the website of the Corporate Debtor, but the possession was....
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....ction to RP to make payment of amount due and payable towards outstanding dues, which have become due during CIRP. The Adjudicating Authority heard IA No.2518 of 2021 filed by the RP for approval of Resolution Plan as well as above two IAs filed by Noida Authority and by a common order all the three IAs were disposed of. The Adjudicating Authority relied on the judgment of Hon'ble Supreme Court in Civil Appeal Nos. 7590-7591/2023 - Greater Noida Industrial Development Authority Vs. Prabhjit Singh Soni & Ors. Decided on 12.02.2024 and sent the Plan back to CoC for resubmission after satisfying the parameters set out by the Code in the light of the observations made by Hon'ble Supreme Court in paragraphs 54(b) and (c). By the same order, the Adjudicating Authority directed that other IAs, including the IA No.4815 of 2022 filed by the Appellant be listed on 30.04.2024. (viii) The Appellant aggrieved by the order dated 05.03.2024 has filed this Appeal. Company Appeal (AT) (Insolvency) No. 816 of 2024 (i) Company Appeal (AT) (Insolvency) No. 816 of 2024 has been filed by Yashveer Singh claiming to be allotee of Unit J-0606 in the Project developed by the Corporate D....
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....an now be considered. It is submitted that the Appellant is now not reiterating its prayer raised in the earlier Applications, which stood rejected upto the Hon'ble Supreme Court, but now is praying for consideration of his claim, since the approval of Resolution Plan by the CoC is no longer in existence and when the CoC is to resubmit the Resolution Plan, the claim of all those homebuyers, whose claims were not considered on the ground of approval of Resolution Plan by the CoC, can very well be considered. The impugned order dated 05.03.2024, gives an opportunity to the RP as well as SRA to consider the claim of the Appellant also, which is duly reflected in the records of the Corporate Debtor. The payments made by the Appellant has not been denied and earlier claim was not considered only on the ground that since CoC has already approved the Plan on 30.03.2020 before filing the claim by the Appellant. The status which was existing after approval of Resolution Plan on 03.03.2020, is no longer available due to the impugned order passed by the Adjudicating Authority on 05.03.2024, the Adjudicating Authority ought to have directed the consideration of claim of the Appellant also. It ....
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.... The order dated 05.03.2024 cannot give any opportunity to the Appellant to re-agitate its claim, which has been rejected. 7. Shri Sunil Fernandes, replying to the submissions of Shri Arun Kathpalia submits that order dated 05.03.2024 is not an opportunity for consideration of fresh claims by the RP or SRA. The Adjudicating Authority has not directed to restart the CIRP, rather, has directed only to resubmit the Plan after considering the claim of the NOIDA, which has been held to be Secured Creditor. No benefit of the order dated 05.03.2024 can be taken by these Appellant(s). It is submitted that the process in approval of Plan has already been delayed and consideration of any other claim at this stage is bound to further delay the finalization of Resolution Plan, which is not in the interest of the homebuyers, who are awaiting for their homes to be delivered. 8. Learned Counsel for the RP submits that RP shall comply any directions issued by this Tribunal in these Appeal(s). 9. We have considered the submissions of learned Counsel for the parties and have perused the records. 10. We need to first notice the contents of the order dated 05.03.2024 passed by the Adjudica....
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....344 of 2021 filed where the Greater Noida has questioned the decision of the RP in treating the Greater Noida as Operational Creditor. The NCLT vide its order dated 05.04.2021, dismissed both the Applications filed by GNOIDA. Aggrieved by which order, Company Appeal (AT) (Insolvency) No.867 of 2021 was filed, which was dismissed by the NCLAT on 24.11.2022, leaving the Greater Noida Authority to file Civil Appeal Nos.7590-7591 of 2023. The Hon'ble Supreme Court allowed the Appeals filed by Greater Noida Authority vide its judgment dated 12.02.2024. Paragraphs 54 and 55, which are relevant in the present Appeal(s) are as follows: "The Resolution Plan did not meet the requirements of Section 30 (2) of the IBC read with Regulations 37 and 38 of the CIRP Regulations, 2016 54. In our view the resolution plan did not meet the requirements of Section 30(2) of the IBC read with Regulations 37 and 38 of the CIRP Regulations, 2016 for the following reasons: a. The resolution plan disclosed that the appellant did not submit its claim, when the unrebutted case of the appellant had been that it had submitted its claim with proof on 30.01.2020 for a sum of Rs.43,40,31,9....
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....creditors did affect its interest. However, neither NCLT nor NCLAT noticed this anomaly in the plan, which vitiates their order. c. Under Regulation 38 (3) of the CIRP Regulations, 2016, a resolution plan must, inter alia, demonstrate that (a) it is feasible and viable; and (b) it has provisions for approvals required and the time-line for the same. In the instant case, the plan conceived utilisation of land owned by the appellant. Ordinarily, feasibility and viability of a plan are economic decisions best left to the commercial wisdom of the COC. However, where the plan envisages use of land not owned by the CD but by a third party, such as the appellant, which is a statutory body, bound by its own rules and regulations having statutory flavour, there has to be a closer examination of the plan's feasibility. Here, on the part of the CD there were defaults in payment of instalments which, allegedly, resulted in raising of demand and issuance of pre-cancellation notice. In these circumstances, whether the resolution plan envisages necessary approvals of the statutory authority is an important aspect on which feasibility of the plan depends. Unfortunately, the order of appro....
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.... the Code, in the light of the observations of the Hon'ble Supreme Court's order (para 54 b & c. supra). Accordingly, IA-2518/2021, IA-3615/2022 and IA-4172/2022 stands disposed of in above terms. IA-2059/2023 IA595/2021, IA-966/2021, IA-4024/2021, IA- 4182/2023, IA-2691/2023, IA-2979/2023, IA-2088/2023, IA- 3078/2023, IA4177/2023, IA4533/2023, IA-4711/2023, IA- 3401/2023, IA3790/2023, IA3963/2023, IA-4242/2023, IA- 4815/2023, RA-62/2023, IA-4879/2023, IA-4906/2023, IA- 5106/2023, IA-5107/2023, IA5487/2023, IA5837/2023, IA- 5923/2023, IA-6268/2023 & IA-685/2024 List all the these IAs on 30.04.2024." 13. Following the judgment of the Hon'ble Supreme Court, the Adjudicating Authority found it appropriate to send the Plan back to CoC for resubmission after satisfying the parameters set out by the Code, in the light of the observations of the Hon'ble Supreme Court in paragraph 54 (b) and (c). One of the consequences of the order dated 05.03.2024 of the Adjudicating Authority is that the Resolution Plan approved by the CoC dated 03.03.2020 is no longer in existence. Use of expression "to send the plan back to CoC for resubmission after satisfying parameters....
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....d by the Committee of Creditor in the month of March 2020. However, as per Regulation 12 and the powers vested in me vide the Insolvency and Bankruptcy Code, 2016, I regrettably inform you that your claim is time-barred as the Resolution Plan has been filed with the Adjudicating Authority. I would thus request you to approach the Hon'ble National Company Law Tribunal to find an efficacious remedy. If the Adjudicating Authority permits your claim, I shall be obliged to honor the same. Till then, I have no remedy to offer to you. Thank you for reaching out to us! Best regards Rabindra Kumar Mintri Resolution Professional | Today Homes Noida Private Limited" 15. We have also noticed that by the same order dated 05.03.2024, the Applications, i.e., IA Nos.4815, 5923 and 4906 of 2023 have been directed to be listed on 30.04.2024. The said Applications are still pending for consideration. 16. Although, various submissions have been raised by the Appellant(s) and Respondents in support of their respective claims, we are of the view that in view of the pendency of the Applications of the Appellant(s) before the Adjudicating Authority, w....
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....shall not arise. 22. In the above context, we refer to certain observation of this Tribunal in Company Appeal (AT) (Insolvency) No. 871-872 of 2019 - Santosh Wasantrao Salokar vs. Vijay Kumar V. Iyer decided on 24th January, 2020 along with other Appeals, where this Tribunal made observations in paragraph 23 as follows: "23. It is further observed in respect of Company Appeal (AT) (Insolvency) No. 892-893 of 2019 &Company Appeal (AT) (Ins) No.924 - 925 of 2019 that various claims are collected by the Resolution Professional during the CIRP process by inviting the claim from individual, organisations etc. But there are several micro claimant as also large claimants like Government claimants particularly Sales tax department, Income Tax Department etc., who generally are not filing claim, filing claim at a belated stage or filing not in appropriate format as a result of which Government dues are not considered although it may be reflected in the financial statements/books of Accounts of Corporate Debtor and similarly micro claims relating to Individual, MSME, and other small traders are also not considered by the Resolution Professional because of time constraint, b....
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....Creditor, but Addendum dated 26.04.2024 also include certain provision regarding homebuyers also. He has referred to Part-II of the Addendum dated 26.04.2024, which provides as follows: "II Additional terms for Beneficial Treatment of Homebuyers: 10. In addition to payments to NOIDA, the addendum also has additional terms for the benefit of Homebuyers. The beneficial changes to clauses for Allottees are as follows : Sl.No. Clause Original clause Revised clause (Changes in clauses are I blue text for the convenience of CoC) Discount to Allottees 22. 18.4 Table - Milestone of payments It is proposed that Residents shall pay INR 200 per square feet of super area within 90 days of the Start Date. All other Allottees (besides the Residents) whose claim has been accepted shall pay INR 400 per square feet of super area over and above their overdue and balance amount. ... The extract of the clause will be substituted/ replaced with the following text: All allottees (regardless of being residents or non- residents) have to pay an additional amount of INR 200 psf at the time of offe....
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.... the same. Scope of RA: 27. 18.4 (xxiii) New Clause The procurement of Occupancy Certificates and Completion Certificates shall be the responsibility of the RA. The RA shall also be responsible for registration of the sub- lease deed of the allottees, subject to the payment of stamp duty charges by the allottees. For Residents: 28. 18.4(iii) The maintenance of the towers where possession has been given shall be taken up by the Corporate Debtor only after at least 75% of the Residents have paid the additional amount of INR 200 per square feet of super area. Till that time, the RWA shall be responsible for maintenance of the Project and collection of the running maintenance fee. The Resolution Applicant or the Corporate Debtor shall not be held liable for any maintenance of the Project till that time. The following text shall be added to the clause - Upon receipt of payment by at least 75% of the residents residing in that tower, repair work and tower completion work in that tower shall be taken up. This includes all work related to repainting and repair of façade, treatment of expansion joints....