AI Drafter 
TaxTMI 
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TaxTMI 
2024 (6) TMI 630
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.... Abhijeet Sinha Sr. Advocate with Ms. Sneha Jai Singh, Ms. Vaishnavi Rao, Mr. Divyam Sharma, Mr. Manan Shah and Mr. Akash Chatterjee, Advocates For the Respondents : Mr. Trishmpati Sen, Ms. Riddhi Sancheti, Mr. Ashish Parwani, Mr. Dikshat Mehra, Mr. Chintan Gandhi, Mr. Anurag Anand and Mr. Mukul Kulhari, Advocates for R-1/RP. Mr. R. Sudhinder, Mr. Ranjit Shetty, Mr. Sandeep Singhi, Mr, Luckyraj Indorkar, Ms. Aastha Trivedi, Mr. Arjun Amin and Ms. Ekta Bhasin, Advocates. Mr. Rahul Kriplani, Ms. Suhasini Sen, Mr. Aditya Pratap Singh Chauhan, Mr. Kinnar Shah, Ms. Nitya Shah, Ms. Supraja V. and Ms. Surbhi, Advocates for R-4 & R-7. Mr. Dhruv Mehta, Sr. Advocate with Mr. Denzil Arambhan, Mr. Pranaya Goyal, Mr. Dharav Shah, Ms. Amisha Patel, Mr. Dhawal Desai and Mr. Shubham Saini, Advocates for R-2. JUDGMENT ASHOK BHUSHAN, J. These appeals viz. Comp. App. (AT) (Ins.) No. 1494-1495 of 2022 & Comp. App. (AT) (Ins.) No. 99 of 2023 by two dissenting Financial Creditors have been filed challenging the order dated 02.12.2022, by which I.A. 503/2022 and I.A. 931/2022 in C.P. (IB) No. 1390/2020 filed by Beacon Trusteeship Ltd. objecting to the Resolution Plan and I.A. 808/202....
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....Trusteeship Ltd. filed a C.P. IB No. 1390/2020 under Section 7 for initiating Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. (x). On 22.01.2021, Municipal Corporation of Greater Mumbai (MCGM) issued a circular granting a rebate/discount of 50% on the FSI premium payable by developers provided the FSI premium is paid by the developers on or before 31.12.2021. (xi). On 30.04.2021, Adjudicating Authority admitted Section 7 application filed by Beacon Trusteeship Ltd. initiating CIRP against the Corporate Debtor. (xii). On 05.05.2021, an interim award was passed by Learned Arbitrator in the Arbitration Proceedings initiated by DB against the society. (xiii). Under interim award, stay was granted on the termination of the Development Agreement subject to compliance of certain terms and conditions by DB which included conditions of several payments to society. (xiv). In the CIRP of the Corporate Debtor, Committee of Creditors (CoC) was constituted on 02.07.2021. (xv). The CoC consisted of following: a) Homebuyers - 33.41% b) HDFC Ltd. - 33.25% c) Piramal Capital & Housing Financ....
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....vote shares. Both Beacon Trusteeship Ltd. and ICICI Prudential Venture Capital Fund Real Estate Scheme I dissented to the Resolution Plan. (xxvii)i. CoC by a separate Resolution also approved the execution of the CMA & MFA by 83.93% voting shares. (xxix). On 27.12.2021, Consent Terms were also executed between the society and the DB resolving disputes between them. xxx. In pursuance after approval of the Plan, the Respondent No. 2 infused an amount of Rs. 450 Crores as interim finance up to 31.12.2021, which was utilised towards payment of dues of the society, FSI premium to MCGM and commencement of construction of project. (xxxi). The Appellants filed their I.A. Nos. 503, 837 & 808/2022, objecting to the Resolution Plan and the valuation of the Corporate Debtor. (xxxii). On 07.10.2022, SRA filed an Additional Affidavit waving its rights over the proceeds of the avoidance transaction of an amount of Rs.1052 Crores of the Corporate Debtor in favour of the CoC. (xxxiii). Majority Members of the CoC have also approved the said Additional Affidavit by filing respective Affidavit before the Adjudicating Authority. (xxxiv). O....
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....lant's claims for Secured Financial Creditor, while on the other hand, it provides 100% recovery to Homebuyers by way of allotted units in the Project without them having to bear any haircut or price escalation. 12. The RP has hurriedly completed the CIRP Process and Respondent No. 2 has put strict timeline for approval of the Resolution Plan to put pressure on the CoC. The Valuation Report which was submitted by the valuers appointed by RP were prepared without all relevant information available to the valuers. There being no proper valuations before the CoC, the decision of the CoC cannot be said to be in exercise of its commercial wisdom. The Resolution Plan submitted by Respondent No. 2 was a conditional Resolution Plan which ought not to have been approved. 13. It is submitted that payments sought to be made to the Appellant who were dissenting Financial Creditor is in violation of Section 30(2)(b)(ii) read with Section 53(1) of the Code since the Appellant are not being paid, the liquidation value as per value of their security interest. Appellant - Beacon Trusteeship Ltd. have security interest in 15 unsold flats and receivable from 12 sold flats whereas ICICI Prudenti....
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....erminated the Agreement unless the Corporate Debtor was resolved and an Agreement is entered into with the society, no right could have been left with the Corporate Debtor to receive anything. Since on termination of Agreement by society of DB automatically the Corporate Debtor shall lose its all rights since it has no privity with the society. 16. The CoC refused to give any interim finance in spite of requirement of interim finance having been noted in several Meetings of the CoC. When the CoC refused to give any interim finance, there was no option except to require the finance from the SRA. Payment of FSI premium prior to 31.12.2021 was necessary to save the benefit of Rs. 100 Cores to the Corporate Debtor. The Appellants were party to all proceedings and were well aware of all discussions and proceeding in the Meetings of the CoCs. 17. The argument that Valuation Reports were not correct has no substance. The RP has shared all information regarding the Corporate Debtor available with it to the valuers and valuers after detailed correspondence with the RP had provided the Valuation Report. Valuers who submitted the Reports are expert and it is not open for the Appellant o....
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....h the construction. The Resolution Plan has been implemented by the SRA. SRA has paid amount to the accenting Creditors under the Resolution Plan as well as to the dissenting Financial Creditors, Operational Creditors and workmen employees has also been paid the amount as per the Plan. The construction in the Project has commenced on 01.01.2022 in accordance with the Clause 5.6 of the RFRP and constructions are likely to complete by June 2024. Resolution Plan is fair and equitable. The receivables from the Corporate Debtor were much low than the amount to be spent in for the construction of Resolution. The Resolution Plan is in compliance with Section 30(2) which compliance has been checked by the Adjudicating Authority while passing the order dated 09.01.2023. The Appellants and dissenting Financial Creditors are entitled to the payment of the amount as per Section 30(2)(b) which amount has already been paid to the Appellant. 22. Sh. Ramji Srinivasan, learned Sr. Counsel appearing for lead Financial Creditor HDFC Bank Ltd. submits that HDFC is a Secured Financial Creditor having 33.25% voting shares. HDFC is also Homebuyers with 5.4% out of 33.41% Homebuyers shares. Respondent ....
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.... by learned Counsel for the parties, we need to first notice few Minutes of the CoC and certain clauses of application inviting the EoI and RFRP. We have already noticed above that Corporate Debtor was not developer appointed by the society. Society has appointed DB granting right of redevelopment of the land by Agreement dated 31.10.2010. The DB who was to execute the redevelopment Agreement granted certain rights to the Corporate Debtor upon discharging certain costs and obligations, including the obligation to cause and complete the construction of the Project. Under the Agreement with the society the DB had to provide flats to the Members of the society and there were under the Agreement certain rights to the DB for free sale. The society had terminated the Development Agreement on 08.05.2020. The consequence of which was that rights given by DB to the Corporate Debtor were to automatically come to an end. Termination letter dated 08.05.2020 was challenged by the DB before the Bombay High Court in Arbitration Proceedings where an interim award was given by Arbitrator on 05.05.2021, by which Termination Notice was stayed subject to various conditions to be fulfilled by the DB wh....
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....dustry; b) Clarity on rights and obligations of the society and c) the business plan should clearly provide timelines of project completion, cost involved, means of financing, projected cash flows, selling plans etc. The Chairman informed the CoC that structure proposed by MIG and Adani is also required to be legally evaluated in view of the ongoing CIRP. The CoC took note of the same. Representative of Beacon and AR of Homebuyers requested to provide business plan at least one day prior to the meeting, which the representative of MIG an Adani stated that they will try. Representatives of MIG and Adani then left the meeting with the permission of the Chair. Representative of Yes bank wanted to know whether step in rights invoked by MIG are legitimate or not as apprehended by them in previous CoC Meetings, to which the Chairman stated that as he has taken over charge very recently, he requires some time to go through the same and take legal advice. Query was also raised by representative of Beacon as to whether proposal made by MIG and Adani would constitute as a resolution plan. The Chairman replied that the same will b....
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.... "Item No. 12 To Consider raising of interim finance The chairman apprised the CoC members that during the last COC meeting, majority of the COC members shown their inability to contribute as interim finance towards the construction of the project." 29. In various CoC Meetings, the Homebuyers had requested to urgently commence construction and arrange for interim finance which is recorded in 6th CoC Meeting held on 07.10.2021. In 7th CoC Meeting, CoC discussed several issues including cost of construction, draft RFRP. The 7th Meeting held on 20.05.2021 draft RFRP was also approved in the said Meeting, subsequently, RFRP was issued by the RP. In Clause 5.6 it was contemplated that after approval of the Plan and issue of LoI, SRA is required to commence construction. Clause 5.6 of the RFRP is as follows: "5.6 Within [*] days from the acceptance of the LoI, the Successful Resolution Applicant shall be required to commence construction on the site against reimbursement of cost basis, or such other basis as the CoC may approve. The aforesaid obligation shall continue until the Successful Resolution Applicant becomes eligible to implement the approv....
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....Representative of HDFC stated that they have observed some referencing errors in the drat RFRP and the same will be emailed separately to incorporate in the draft RFRP. Copy of the Request for resolution plan (RFRP) is attached as Annexure - B. Accordingly, the following resolution has been put to vote through electronically. "RESOLVED THAT pursuant to provisions of the Reg. 36B of the CIRP Regulations 2016, the Committee of Creditors ("CoC") hereby approves the RFRP, draft of which was circulated to the CoC and discussed and finalized in the Meeting." 31. As noted above in pursuance of obligation of `Form-G' an EoI was received from two entities including Respondent No. 2 but only one Resolution Plan was received from Respondent No. 2, which fact has been noticed that it was only Respondent No. 2 who was only eligible Resolution Applicant. In Item No. 7 of the 9th CoC Meeting held on 11.11.2021, following was recorded: "Item No. 7 To take note of the Provisional List of Prospective Resolution Applicants ("PRAs") and further course of action: The Chairman informed the CoC that the Provisional List of PRAs had been circulated ....
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....ion of Development Agreement with DB, coming into operation all rights of Corporate Debtor could have automatically vanished. The insistence of CoC to complete the process urgently was need of time and circumstances of the case and was in the interest of the Corporate Debtor. 35. We thus do not find any hurry or procedural violation by the RP in conducting the CIRP and approving the Resolution Plan. 36. Learned Counsel for the Appellant(s) have challenged the Valuation Report obtained by RP in the CIRP. It has been contended that Valuation Report were submitted by Valuers without there being complete information available with them. It is submitted that the Valuation Reports were submitted before the Adjudicating Authority was challenged by the Beacon and ground for challenging the Valuation Reports were advanced, which were rejected by the Adjudicating Authority vide its order dated 02.12.2022 on insufficient ground. The submission of the Appellant(s) have been opposed by the learned Counsel appearing RP and SRA. It is submitted that appointment of Valuers was approved by the CoC and the Valuers were appointed in accordance with CIRP Regulations, 2016, who have submitted com....
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....Developers Pvt. Ltd.'s Share) 418,20,66,363 TOTAL 1471,67,54,363 Balance construction cost of Rehab and Sale Buildings including GST and Contingencies [As per Para 19.1 of the valuation report] 812,60,49,063 Amount (In Rs.) (Incoming) Amount (In Rs.) (Outgoings) Balance Premiums to be paid [As per para 17.1 of the valuation report] 147,88,72,847/- Society related Rent [As per para 6.0 of the valuation report] 105,62,04,500/- Stamp Duty for 50% premium reduction 52,67,34,400/- Admin + Selling expenses etc. 14,00,00,000/- Refund amount (Units already resold) 37,19,30,998/- Statutory Costs (LUC Tax) [As per Annexure- 1] 28,61,15,356/- Interest @ 11% for a period of 30 months 131,81,19,788/- Net Turnover from the Project i.e. Rs. 1471,67,54,363/- - Rs. 131,81,19,788/- = Rs. 1339,86,34,575/- Assuming Developer's Profit from the Net Turnover value @10% 133,98,63,457/- Total 1471,67,54,363/- 1464,08,90,409/- ....
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.... ∴ Liquidation Value of Project = Rs.5,02,25,200/- - Rs.24,05,961/- = Rs. 4,81,19,239/- ============== Say : Rs. 4,81,19,200/-" ============== 38. When we look into the aforesaid Report, it indicate that all relevant factors have been given due consideration. There is another Report of the immovable property, which also gave detailed consideration. 39. The Adjudicating Authority has also considered the objections raised by the Appellant to the Valuation Report. In paragraph-5 of the order dated 02.12.2022, the Adjudicating Authority dealt with the objections and upheld the Valuation Reports. It is useful to extract following observations of the Adjudicating Authority in paragraph-5 of the order, which is as follows: "5. .... The present Res....
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..... Union of India, (2014) 11 SCC 307. "8. ... Valuation of immovable property is not an exact science, nor can it be determined like an algebraic problem, as it abounds in uncertainties and no straitjacket formula can be laid down for arriving at exact market value of the land. There is always a room for conjecture, and thus the court must act reluctantly to venture too far in this direction. "" (Emphasis Supplied) 40. In the reference of valuation, which is conducted in the CIRP, we need to notice judgment of the Hon'ble Supreme Court in Ramkrishna Forgings Ltd. vs. Ravindra Loonkar, Resolution Professional of ACIL Ltd. & anr. - (2024) 2 SCC 122. In the case before the Hon'ble Supreme Court, the Adjudicating Authority on the Application filed by the RP for seeking approval of Resolution Plan, direction was issued to keep the Application in abeyance while directing the Official Liquidator to carry out the revaluation of the assets of the Corporate Debtor. The proceedings before the NCLT and NCLAT have been noticed in paragraph-1 of the judgment, which is as follows: "Heard the learned counsel for the parties. The present appeal under Section 62 ["62. Appeal t....
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....he other. Stricto sensu, it is now well settled that it is well within the CoC's domain as to how to deal with the entire debt of the corporate debtor. In this background, if after repeated negotiations, a resolution plan is submitted, as was done by the appellant (resolution applicant), including the financial component which includes the actual and minimum upfront payments, and has been approved by the CoC with a majority vote of 88.56%, such commercial wisdom was not required to be called into question or casually interfered with. 36. Surprisingly, the discussion in both orders is wanting, except for the difference in the figure of the total outstanding dues and the amount of money which the appellant was to put up initially for taking over the corporate debtor, for this Court to understand as to what other reasons, grounded in the Code's provisions, compelled the adjudicating authority - NCLT to embark upon the novel path of ordering revaluation by the OL. At the cost of repetition, nobody had moved before NCLT or raised any objection challenging the resolution plan pending approval. Even NCLAT has only indicated that when "figures of crores" are emerging stage....
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....ch has been pressed by learned Counsel for the Appellant(s) is that there is unfairness in bargain as is reflected from the Resolution Plan. It is submitted that whereas Financial Creditors are subjected to haircut of 93%, the Homebuyers are being given their flats without escalation of any price. Insofar as, haircut of 93% given to Financial Creditors is concerned, we have noticed above the judgment of the Hon'ble Supreme Court in Ramkrishna Forgings Ltd. where Adjudicating Authority was swayed away by haircut of 94.25% and Hon'ble Supreme Court in paragraph-34 of the judgment as extracted above observed that Adjudicating Authority was unduly swayed away with the haircut of 94.25%. 44. Coming to the giving of the flats to the Homebuyers under the Resolution Plan, without escalation of price, it is to be noted that Homebuyers are creditors in a class and they have been recognized as Financial Creditors by amendments made in the Code. This Tribunal in its judgment in Company Appeal (AT) (Insolvency) No.926 of 2019 - Flat Buyers Association Winter Hills - 77, Gurgaon vs. Umang Realtech Pvt. Ltd. through IRP & Ors. decided on 04.02.2020, has noted the case of the Homebuyers and als....
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....akes it clear that the remedies under RERA to allottees were intended to be additional and not exclusive remedies. Therefore, provisions of the Code would apply in addition to RERA. 11. In most cases, the Committee of Creditors take 'haircut'. The Resolution Applicants satisfy them most of the time with lesser amount than the amount as determined. In the case of allottees (Financial Creditors), there cannot be a haircut of assets/ flats/ apartment." 45. With regard to assets, i.e, unit, it was observed by this Tribunal that units have to be transferred to Unsecured creditors - the Homebuyers and not to the Secured Creditors. Hence, comparison of their claim by the dissenting Financial Creditors from the Homebuyers, is not appropriate. The Homebuyers, who have been allotted the house and amount of consideration has already been fixed in the allotment and it was undertaken by the Corporate Debtor to handover the units on payment of consideration, no exception can be taken to handing over of the units to the Homebuyers on consideration, already paid. In this context, we may refer to judgment of this Tribunal, delivered on 02.11.2023 in Company Appeal (AT) (Insolvency) No.1....
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....ibunal has fallen into grave error. Paragraph 76 clearly refers to the UNCITRAL Legislative Guide which makes it clear beyond any doubt that equitable treatment is only of similarly situated creditors. This being so, the observation in paragraph 77 cannot be read to mean that financial and operational creditors must be paid the same amounts in any resolution plan before it can pass muster. On the contrary, paragraph 77 itself makes it clear that there is a difference in payment of the debts of financial and operational creditors, operational creditors having to receive a minimum payment, being not less than liquidation value, which does not apply to financial creditors. The amended Regulation 38 set out in paragraph 77 again does not lead to the conclusion that financial and operational creditors, or secured and unsecured creditors, must be paid the same amounts, percentage wise, under the resolution plan before it can pass muster. Fair and equitable dealing of operational creditors' rights under the said Regulation involves the resolution plan stating as to how it has dealt with the interests of operational creditors, which is not the same thing as saying that they must be paid th....
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....aforesaid judgment, must therefore be set aside." 27. We, thus, are of the view that commercial wisdom of the Committee of Creditors, which has approved the Resolution Plan under which different treatment has been given to 'Affected Homebuyers' and 'Unaffected Homebuyers', cannot be faulted. We, thus, are of the view that there are no grounds made out to challenge the approval of the Resolution Plan. Further, the Adjudicating Authority has also rightly rejected the objections filed by the Appellant by I.A. No. 933 of 2022." 46. It is further relevant to notice that in the present case, the CoC has approved the Resolution Plan, which directed the haircut to the Financial Creditors and decided to handover the units to Homebuyers, after completion of the construction, which construction cost was undertaken to be spent by the SRA, as per the RFRP and Resolution Plan. It was a 'commercial wisdom' of the CoC, which approved the pay-out to different Creditors. Present is not a case, where any violation of Section 30, sub-section (2) has been proved by the Appellant. As observed above, Appellant(s) being dissenting Financial Creditors are entitled to receive their payment as pe....
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..... Indian Overseas Bank, (2019) 12 SCC 150, Committee of Creditors v. Satish Kumar Gupta, (2020) 8 SCC 531 and several decisions thereafter, including Jaypee Kensington v. NBCC, (2022) 1 SCC 401, wherein the resolution plan involved the revival of a real estate company and dealt with the interests of homebuyers and other classes of financial creditors." 47. We, thus, do not find any infirmity in the order of the Adjudicating Authority, approving the Resolution Plan dated 09.01.2022. 48. Now we come to the submission advanced by the Counsel for the Appellant that Appellants are entitled for payment as per value of their security interest in the assets of the Corporate Debtor. As noted above, Beacon Trusteeship Ltd. claims security interest in 16 unsold flats receivable from 12 sold flats, ICICI Prudential Venture Capital Fund Real Estate Scheme I claims security interest in 14 unsold flats and receivables from 4 sold flats. 49. The question that a Financial Creditor including a dissenting Financial Creditor whether is entitled to receive the amount in a Resolution Plan as per his security interest has been considered and decided by the Hon'ble Supreme Court and this Tribunal....
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....re dealt with, there is no cap to the effect that they are entitled to receive the amount equivalent to their debt which is owed by the Corporate Debtor. Thus, despite Financial Creditor having security interest in the assets of the Corporate Debtor, they can be dealt with in the resolution plan in any manner as per the commercial wisdom of the CoC. When the security interest of Financial Creditor can be dealt with in the resolution plan in any manner, we fail to see that how a third party having security interest in the assets of the Corporate Debtor can claim any higher status or different status from the Financial Creditor." 51. Another Judgment which needs to be noticed in the Judgment of the Hon'ble Supreme Court in Comp. App. (AT) (Ins.) No. 405/2023, `ICICI Bank Ltd.' Vs. `BKM Industries Ltd. & Anr.'. In paragraphs 15 and 16 of this Judgment following was held: "15. When we look into Section 53, sub-section (1) (b), debt owed to a secured creditor has to be distributed equally between and amongst workmen's dues and debts owed to a secured creditors. The debt owed to the secured creditor is a debt as admitted in the CIRP. Admittedly, the claim as submitted by the ....
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....y the distribution to dissenting members as per the Resolution Plan and distribute the proceeds of the resolution plan to Applicant SIDBI for an amount of Rs. 5,64,97,893/- in priority in accordance with provisions of IBC 2016 in the interest of justice and equity. 2. Interim stay be granted on distribution of the resolution plan amount by the Resolution Professional to the CoC members till the present application is decided." * The case of the Appellant in the Application was that as per security interest of the Appellant, the Appellant is entitled to 6.93 % i.e. the amount of Rs. 5,64,97,893/- and as per voting share as approved by the CoC, the Appellant is entitled to 2.03% i.e. Rs. 1,65,47,078/-. The case of the Appellant set up in the Application is that he is entitled for his distribution of plan amount as per value of the security interest of the Appellant. The Application was objected by the Resolution Professional. The Adjudicating Authority by the Impugned Order dated 17th March, 2022 rejected the I.A. No. 581 of 2021 upholding the decision of the CoC for distribution of proceeds of the Resolution Plan as per the voting share. Appellant aggrieved by the ....
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....he latter part of subclause (b) which refers to dissentient financial creditors. Ms Madhavi Divan is correct in her argument that Section 30(2)(b) is in fact a beneficial provision in favour of the operational creditors and dissentient financial creditors as they are now to be paid a certain minimum amount, the minimum in the case of the operational creditors being the higher of the two figures calculated under sub-clauses (i) and (ii) of clause (b), and the minimum in the case of dissentient financial creditor being a minimum amount that was not earlier payable. As a matter of fact, preamendment, secured financial creditors may cramdown unsecured financial creditors who are dissentient, the majority vote of 66% voting to give them nothing or next to nothing for their dues. In the earlier regime it may have been possible to have done this but after the amendment such financial creditors are now to be paid the minimum amount mentioned in sub- section (2). Ms Madhavi Divan is also correct in stating that the order of priority of payment of creditors mentioned in Section 53 is not engrafted in sub-section (2)(b) as amended. Section 53 is only referred to in order that a certain minimu....
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....ecured Creditor as a Financial Creditor, which according to the judgment of the Hon'ble Supreme Court may require reference to a larger bench. Hence, the Hon'ble Supreme Court proceeded to the Second option under which the Hon'ble Supreme Court held that Appellant was entitled to retain the security interest in the pledged shares, which means was entitled to retain the security proceeds on the sale of the said pledged shares. In Para 9 following was held: "9. Thus, we are presented with a difficult situation, wherein, Appellant No. 1 - Vistra, a secured creditor, is being denied the rights under Section 52 as well as Section 53 of the Code in respect of the pledged shares, whereas, the intent of the amended Section 30(2) read with Section 31 of the Code is too contrary, as it recognises and protects the interests of other creditors who are outside the purview of the CoC. To our mind, the answer to this tricky problem is twofold. First is to treat the secured creditor as a financial creditor of the Corporate Debtor to the extent of the estimated value of the pledged share on the date of commencement of the CIRP. This would make it a member of the CoC and give it....
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....2 of the Code. As noted above, Section 52 and 53 becomes applicable only in Liquidation Proceeding and reference of Section 53 under Section 30(2) is for the purpose of computing the payment to Operational Creditors and dissenting Financial Creditors to which they may be entitled under Section 53. 36. We, thus, accept the submission of learned counsel for the Respondent that judgment of Hon'ble Supreme Court in "Vistra ITCL (India) Ltd." and direction issued in Para 9 have been in exercise of Article 142. Learned counsel for the Respondent has placed reliance on judgment of Hon'ble Supreme Court in "State of Pujab v. Rafiq Masih, (2014) 8 SCC 883", where Hon'ble Supreme Court dealing with Article 141 and 142 of the Constitution of India enumerated the principles in Paras 8 and 11, which are to the following effect: "8. In our view, the law laid down in Chandi Prasad Uniyal's case, no way conflicts with the observations made by this Court in the other two cases. In those decisions, directions were issued in exercise of the powers of this Court under Article 142 of the Constitution, but in the subsequent decision this Court under Article 136 of the C....
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.... thus, are of the view that judgment of Hon'ble Supreme Court in "Vistra ITCL (India) Ltd." is in facts of the said case. The Appellant in the present case cannot rely on the said judgment as a declaration of law within the meaning of Article 141 of the Constitution of India." 54. Judgment of the Hon'ble Supreme Court in `Vistara ITCL (India) Ltd. & Ors.' (Supra) does not come to help of the Appellant in the present case. It is relevant to notice that Hon'ble Supreme Court in `DBS Bank Ltd. Singapore' Vs. `Ruchi Soya Industries Ltd. & Anr.' 2024 SCC OnLine SC 3, made a reference to the earlier Judgment of the Hon'ble Supreme Court in `India Resurgence ARC Pvt. Ltd.' (Supra), which reference is pending consideration before the Hon'ble Supreme Court. Law declared by Hon'ble Supreme Court in `India Resurgence ARC Pvt. Ltd.' (Supra) can very well be relied until a different view is expressed by the Hon'ble Supreme Court in the reference pending before it. 55. We thus are fully satisfied that Appellants are not entitled to claim payment as per the security interest in the asset of the Corporate Debtor. Order in I.A. 56. I.A. No. 5442-5443/2023 has been filed in Comp. App....