TaxTMI 
TaxTMI 
2024 (10) TMI 16
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....tly by M/s Desire Retail Pvt. Ltd. holding 69 units in the Festival City Project (here in after referred to as "the Project"), M/s Ramble Markets Pvt. Ltd. holding 59 units in the Project, M/s Swift Buildwell Pvt. Ltd. holding 4 units in the Project and M/s Veena Gases and Chemicals Pvt. Ltd. holding 15 units in the Project seeking intervention in the Company Petition (IB) 682 of 2021 where in 115 units holders in the same Project as the Applicants herein have filed an application seeking initiation of CIRP of the Corporate Debtors. The applicant in Ivn. P/11/2024 has prayed for the following reliefs: (a) Pass an order allowing the impleadment of Applicants in CP IB No 682 of 2021 (b) Pass an order giving an opportunity to the Applicants and all other allottees of the Project to consider the scheme of compromise and arrangement filed under Section 230 of the Companies Act, 2013 by the Company in a meeting of allottees to be convened under the directions of this Hon'ble Tribunal and in meantime by convening, no final orders may be passed by this Hon'ble Tribunal in CP IB No. 682 of 2021; (c) Pass such other and further order as this Tribunal may de....
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....gs, the same was dismissed by this Adjudicating Authority vide order dated 25.07.2023. However, there has been substantial development in the facts and circumstances pertaining to captioned matter. iii. That scheme of compromise and arrangement have been proposed between the between the Respondent No 6 and all 1600 of the allottees in the project. This development give rise to a new cause of action thereby making the present application maintainable. iv. That mere 115 allottees cannot be allowed to sway the company into insolvency when the same is not in the interest of majority of the allottees. v. That in terms of section 230 of the Code, 1500 other allottees should be allowed to at least consider the merit in the scheme proposed by the Respondent No 6 here in before any adverse order is passed by this Tribunal vi. That the present delay has been caused on account of on- going dispute on ownership of the land vii. That there is a strong possibility that the land dispute which is the foundation of the alleged default of the CD may be resolved in terms of the pending proceedings before the Hon'ble Allahabad High Court viii. That....
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....e intention of IB Code, 2016 was never to put other unit holders at a prejudicial position merely because a set of allottees are not interested in revival. In the present case, despite there being a clear chance of receiving the entire principal as invested, there is a clear threat that the Company may be put to CIRP which would result in corporate death. Therefore, applicants sought necessary directions from this Tribunal. vii. That the Applicant had also expressed the aforesaid concerns to the representatives of the Respondent No.6 and requested the company to convene a meeting with the unit holders. The meeting was called by Respondent No.6 on 02.02.2024 with 230-unit holders, wherein the representative of the Company apprised the Applicants herein about the status of the Project and the ongoing litigations. The representative of the Company further apprised the Applicants that construction work is likely to be resumed soon as the Writ Petition filed before the Hon'ble Allahabad High Court pertaining to the title dispute will be concluded soon as the pleadings are complete. After thorough deliberations, the meeting was concluded with a proposition that the Responden....
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....ted 21.10.2022 and was subsequently upheld by the Hon'ble NCLAT vide order dated 17.11.2023 and the Hon'ble Supreme Court vide order dated 11.12.2023. It is pertinent to note that the Hon'ble Supreme Court, while dismissing the appeal filed by the CD against the order of the Hon'ble NCLAT, has held as under: - "After the application under Section 7 is heard and disposed of on merits, should it become necessary to do so, the parties would be at liberty to take recourse to all appropriate proceedings in accordance with law. At that stage, should it become so necessary, this Court will enquire into both the merits and maintainability. However, we also clarify that the issue of maintainability shall stand concluded by the impugned order dated 17 November 2023 insofar as the National Company Law Tribunal and NCLAT is concerned. Since the application under Section 7 is pending for over two years, we request the NCLT to take up the application at the earliest possible date and to endeavour an expeditious disposal within two months." 10. Then, the same applicants in Ivn. P/11/2024 had filed an application bearing IA 3875/2023 seeking dismissal of the main Company Petition on th....
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....rk of the Corporate Debtor. Only that the Corporate Debtor will be replaced. The CIRP envisages the organization to work as a going concern. Therefore, the objection/apprehension raised by the Ld. Counsel for the Applicant is not sustainable in the eye of law. Ld. Counsel for the Applicant has also raised another argument that after filing of present Section 7 application approximately 10 Petitioners have opted for settlement with the Corporate Debtor and walked out of the array of Petitioners. In terms of "Manish Kumar Vs. Union of India" judgment passed by the Hon'ble Supreme Court of India, the criteria that should be looked into by Adjudicating Authority is whether as on date of filing of the Section 7 petition, the Petitioners are able to master the support of minimum number of Applicants or not. Therefore, the argument advanced by the Counsel for the Applicants is not sustainable. At the outset it is clarified that few of the Petitioners at their own wisdom walked out of the array of the Petitioners, does not create an impression to this Adjudicating Authority that Petitioners are treating this proceeding as recovery proceeding. In fact, at the stage of the matter, the very p....
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....way for forum shopping, therefore, the IA/5400/2023 is dismissed. 13. IA/5400/2023 stands dismissed. Consequently, IA/4312/2023, IA/4121/2023 & IA/4122/2023 also stand dismissed. The applicant is also directed to refrain from filing such frivolous applications in future so as to avoid imposition of cost. 12. Now coming to the present application, the applicants have referred the scheme of arrangement which was filed by the CD under section 230 of Companies Act, 2013. The counsel representing the Financial Creditors had already opposed the issuance of notice in the Intervention Petitions filed by the applicants and pressed for the dismissal of the applications, arguing that there are no provisions in the Insolvency and Bankruptcy Code (IB Code) for intervention at the pre-admission stage. The submissions of the Financial Creditors were also recorded in the order dated 15.02.2024. Hence, we cannot direct the allottees/ Financial Creditors who had filed the main Company Petition (IB) 682/2021 to consider the scheme of Arrangement proposed by the Corporate Debtor. 13. On an application filed under Section 7 of the IBC, 2016, this Adjudicating Authority merely has to asce....