TaxTMI 
TaxTMI 
2024 (5) TMI 470
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....or 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 not given. (ii) By order dated 20.08.2019 - M/s ....
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....come 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 Debtor. The Appellant claims that he has paid Rs.41,17,773/- to the Corporate Debtor with respect to the abov....
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....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 is submitted that IA, which was filed by the Appellant being IA No.4815 of 2023 is still pending and has been directed to be co....
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.... 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 Adjudicating Authority, which is impugned in these Appeal(s). The order dated 05.03.2024, notices the prayers made in three IAs, i.e., IA No.2518 o....
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....cations 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.43,40,31,951/- No doubt, the record indicates that the appellant was advised to submit its claim in Form B (meant for operational creditor) in place of Form C (meant of financial creditor). But, assuming the appellant did not heed....
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....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 approval does not envisage such approvals. But neither NCLT nor NCLAT dealt with those aspects. Relief 55. As we have found that neither NCLT nor NCLAT while deciding the application /appeal of the appellant took note of the fact t....
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.... 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 set out by the Code" clearly indicate that Resolution Plan has to be resubmitted by the SRA to the CoC. The submission, which is much pressed by Shri Sunil Fernandes, learned Counsel for SRA is that direction issued by the Adjudicating Authority vide order dated 05.03.2024 ca....
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..... 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, which are yet to be adjudicated, we do not find it necessary at this stage to enter into submission or express any opinion on merits. We are of the view that approval of Resolution Plan by the CoC on 03.03.2020 being no more in operation and the SRA has to resubmit the Resolution Plan, as per direction of the Adjudicating Au....
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....t 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, belated receipt or non receipt of the claim even though the same may be provisioned for in the books of Accounts of Corporate Debtor hence in order to strengthen the system including the preparation of information memorandum as per regulation 36 of IBBI, it would be fair and proper if appropriate provision is incorporated under IBBI, (Insolvency....
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....he 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 offer of possession for fit out. Discounts shall be provided to only Allottees .. the discounts shall be given at the stage of Offer of Possession. It is clarified that payment of INR 400 psf shall not be demanded from non- residents. 23. 18.4(iv) along with the additional amount of INR 200 psf for Resident and INR 400 psf for other Allottees according to the Plan Deleted 24. 18.13 (vi) a In ....
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....nd 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 etc. However, it is clarified that repair of common facilities and facilities pertaining to fire safety shall be taken up on priority regardless of contribution by Residents Power Backup 29. 18.4(vi) It must be noted that Power Back up shall be provided only for common area and common facilities... shall not be provided. And mention of Power Backup in the table below. The text shall be substituted with the following text - Power Backup shall be provided as per BBA. 20. It is submitted that Addendum, which according to SRA has been prepared, considering the claims of homebuyers and granting certain additional benefits to the homebuyers, there is no impediment in considering the claims ....