TaxTMI 
TaxTMI 
2025 (8) TMI 652
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.... us. LPA 396/2024 [Bank of Baroda v Ratul Puri] The lis 2. The Bank of Baroda ["BOB"] assails judgment dated 29 February 2024 passed by a learned Single Judge of this Court in WP (C) 4181/2023 [Ratul Puri v Bank of Baroda]. 3. By the impugned judgment, the order dated 23 March 2023 passed by the Review Committee of the BOB, declaring the respondent to be a "wilful defaulter" within the meaning of Clause 2.1.3 of the Master Circular on Wilful Defaulters, 2015 ["Master Circular"], issued by the Reserve Bank of India ["RBI"], has been set aside. Background 4. Moser Baer India Ltd ["MBIL"] availed loans from various banks. These included a loan from BOB, which was sanctioned vide letters dated 12 December 2006 and 24 April 2010. At the time of availing of the loan, the respondent Ratul Puri was a whole-time director of MBIL. In 2010, he decided to exit from MBIL, though he continued to remain a director on its board. 5. Following the decline in the fortunes of MBIL, BOB and other lenders, which lent monies to MBIL, found MBIL to be a fit case to consider debt restructuring. A Joint Lenders Meet ["JLM"], of all lenders of MBIL, therefore, was convened on 3 Februa....
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...., which opined that MBIL was considered to be viable. 12. On 20 July 2012, another JLM was convened of all the lender banks, including BOB. The JLM considered the Flash Report submitted by MBIL, the TEV report of E & Y and a stock audit report of RRCA & Associates, and issued a Final Restructuring Scheme ["FRS"] dated 20 July 2012. 13. In accordance with the FRS, MBIL and the Consortium of Banks, including BOB and the Central Bank as the monitoring institution, signed a Master Restructuring Agreement ["MRA"] dated 27 December 2012 for implementation of the CDR package agreed between the parties. Clause 6.1 (iv) of the MRA required MBIL to execute a Trust and Retention Account ["TRA"]. Consequent to execution of the TRA agreement, MBIL was required to transact, for its day-to-day functioning, only through the TRA account. 14. On 16 November 2012, the respondent resigned as Director of MBIL and filed Form-32 to that effect, with the ROC. This constituted complete exit, by the respondent, from MBIL. 15. In terms of clause 6.1(iv) of the MRA, the TRA Agreement was executed between the lender banks and the MBIL on 12 February 2013. 16. Despite all these efforts, MBIL was ....
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....t to be a wilful defaulter. It was further pointed out that the details of these investments had been disclosed in the audited financial statements of MBIL, which had been submitted to all lenders including BOB. 21. The Identification Committee of the BOB proceeded to pass order dated 19 August 2022 declaring the respondent to be a wilful defaulter in terms of the Master Circular. Of the six allegations against the respondent in the show cause notice dated 13 March 2020, Allegations 2 to 6 were dropped. Allegation 1 was, however, confirmed and, consequently, the respondent was declared as a wilful defaulter in terms of the Master Circular. In arriving at this conclusion, the Identification Committee observed that during the period when the funds had been invested by MBIL in its subsidiaries, which constituted diversion and siphoning of funds in terms of the Master Circular, the respondent was a whole time Director in MBIL and in complete control of its affairs. It was further opined by the Identification Committee that the investments made by the MBIL in its subsidiaries, which triggered a shortage of funds, amounted to diversion of funds in terms of Clause 2.1.3 (b) and (c) of ....
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....the. lender and has siphoned off the funds so that the funds have not been utilised for the specific purpose for which finance was availed of, nor are the funds available with the unit in the form of other assets. ***** The identification of the wilful default should be made keeping in view the track record of the borrowers and should not be decided on the basis of isolated transactions/incidents. The default to be categorised as wilful must be intentional, deliberate and calculated." (ii) Thus, "wilful default" could be said to have taken place only if the loan amounts lent by the bank, which constituted the "borrowed funds", were diverted or siphoned off by the borrower, for purposes other than those for which the loan was granted. (iii) Clause 2.2 of the Master Circular defined diversion and siphoning off funds thus: "2.2 Diversion and siphoning of funds: The terms "diversion of funds" and "siphoning of funds" should construe to mean the following: - 2.2.1 Diversion of funds, referred to at para 2.1(b) above, would be construed to include any one of the undernoted occurrences: (a) utilisation of short-term working capital funds ....
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....ing. The decision of the Identification Committee would be reviewed by a Review Committee headed by the Chairman/ MD/CEO and also comprising two other independent non-executive Directors of the bank. A declaration of a borrower as a wilful defaulter would be final only after confirmation by the Review Committee. (v) Clause 3 further provided that in terms of Section 2(60)^2 of the Companies Act, 2013, an officer could be treated as a wilful defaulter only if he was a whole time Director or fell within one of the categories of exceptions enumerated in the said clause. (vi) The consequences of declaration of a person as a wilful defaulter were drastic. A wilful defaulter was barred from availing any loan facility in the future or floating any new venture. He was also exposed to criminal proceedings. A label of wilful defaulter also affected the reputation of the person concerned, with whom business entities would hesitate to conduct any business. Financial institutions would also be chary of providing loans to wilful defaulters. Characterization as a wilful defaulter, therefore, was in the nature of a financial death knell of the individual or entity concerned. The drastic natu....
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....een examined fell short of the necessary requirements. The Identification Committee had, therefore, failed to discharge its obligations envisaged in Clause 3(a) and (b) of the Master Circular before issuing show cause notice to the respondent. (c) In his written submissions filed before the identification committee by way of response to the show cause notice, the respondent submitted that: (i) no investment had been made by MBIL in its subsidiaries from any borrowed funds, (ii) all investments were from internal accruals/PE [Private Equity] Funds/FCCBs [Foreign Currency Convertible Bonds], and were disclosed to the BOB in the audited financial statements during the financial years 2003-2011, (iii) these investments were evaluated at the time of sanction of loan on 24 April 2010, and no objection was raised, (iv) the investments were also evaluated by the lender banks at the time of formulation of the CDR Scheme, and (v) the writing off the investments in subsidiaries took place between 01 April 2013 and 31 March 2015, after the respondent had exited MBIL on 16 November 2012. (d) Pursuant to the above response of the res....
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....2, before the CDR scheme was finalised. Clause 1.3.2 of the FRS recorded the fact that MBIL had made investments in its subsidiaries, which had been disclosed in the Flash Report submitted by it. Significantly, Clause 5.1.2 of the FRS acknowledged that the investments made by MBIL in its subsidiaries were funded by the "substantial cash surplus," generated by MBIL from years 2006 and 2008. Clause 5.1.2 of the FRS, which so stated, reads thus: "5.1.2 Constrained ability to unlock value from investments in subsidiaries under present circumstances * The company had chalked out a clear-cut long term plan to strategically invest in the R&D activities and to develop businesses around its core technological and commercial focus areas. In-line with its vision, it began making strategic investments year after year. These investments had been fully funded from the substantial Cash Surpluses generated by the company in earlier years - from FY-06 onwards and partially from FCCB issuance in FY-08. * At the time of making these investments, the growth potential and expected profitability from its core businesses and these businesses were substantial - as were the acces....
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.... to decide cases of wilful default objective, with application of mind and after considering all relevant facts and circumstances. (o) BOB also sought to contend that, before making investments in its subsidiaries, MBIL did not take prior approval. This contention was also untenable. There was no evidence of any objection having been raised, at any time, to the investments made by MBIL in its subsidiaries, though the lenders were aware of these investments at all points of time. Rather, in the FRS, these investments were regarded as potentially financially sound. The question of obtaining prior approval arose only if the investments were made using borrowed funds. As it was an admitted position, in the FRS, that the investments were made from cash surplus of MBIL, no prior approval, before making the investments, was required. (p) Further, BOB had, vide its letter dated 20 September 2007 addressed to MBSL, intimated that, against MBSL's request or loan of Rs. 439.21 crores, DOB was able to provide only Rs. 292.82 crores and the balance would have to be raised by MBSL through its promoters. MBIL, as the 100% parent company of MBSL, had infused the differential bala....
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....isfaction. 155. This Court is of the view that it is incumbent upon banks who are dealing with public funds and discharging a public duty to make appropriate enquiries as to whether a borrower is in genuine financial difficulty or whether there exists any event(s) of fraud and malfeasance. If the lender banks find fraud or malfeasance, the CDR-EG must either refuse CDR completely or impose such additional onerous conditions as provided in the CDR Scheme itself. 156. In the present case, the lender banks were aware of the investments made by MBIL in its subsidiaries. This fact is part of the documents leading to the finalization of the CDR scheme. The investments were treated as strategic with growth potential and expected profits. The investments were found to have been made from the cash surpluses of MBIL. The lender banks did not find these investments as diversion or siphoning of borrowed funds. The lender banks placed MBIL in Class-B of CDR Master Circular which cannot be assigned if there is diversion of funds. They found no occasion to order a forensic audit of MBIL either before finalization of CDR scheme or after its failure. The lender banks, therefore, n....
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....g off). The Review Committee also rightly concurred with the decision of the Identification Committee, which was in sync with the opinion expressed in the FAR. 30.3 In these circumstances, Mr. Sharma submits that the impugned judgment of the learned Single Judge cannot sustain, and deserves to be set-aside. 31. Submissions of Mr. Vaibhav Mishra 31.1 Mr. Vaibhav Mishra, appearing for Respondent, besides relying on the observations and findings of the learned Single Judge, submits that the balance sheets of MBIL, which were and continue to be in the public domain, indicate that, every year between 2004 and 2011, the value of the net current assets and fixed assets of MBIL far exceeded its borrowings. This, even by itself, he submits, indicates that MBIL utilised the borrowed funds for the purposes for which they were lent, and that there was no mis utilisation at any point of time. In fact, as per admitted balance sheets, MBIL had cash accruals of Rs. 4304 crores during the period of alleged misutilisation. Reliance has been placed, in this context, on the judgment of a Division Bench of the High Court of Bombay in CIT v Reliance Utilities & Power Ltd 2009 SCC OnLine Bom 216....
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....eeting its payment/repayment obligations to the lender. 34. Absent "diversion" or "siphoning" of the funds obtained from the lender, i.e. the borrowed funds, therefore, Clause 2.1.3(b) and (c) would not apply. This, by itself, would render the decision to treat the respondent as a wilful defaulter illegal. 35. "Diversion" and "siphoning" of funds are defined by Clause 2.2 of the Master Circular. Apropos Allegation 1 of the allegations in the show cause notice issued to him, which alone has confirmed and made the basis of declaring the respondent a wilful defaulter, "diversion of funds" would be construed to take place if borrowed funds are transferred to subsidiaries or Group companies, and "siphoning off funds" would be construed to take place if borrowed funds are utilised for purposes unrelated to the operations of the borrower. 36. The standard to be maintained while examining whether a particular borrower is, or is not, liable to be treated as a "wilful defaulter" is also clearly set out in the Master Circular. Clause 2.1.3 clearly states that the identification of wilful default has to be made keeping in view the track record of the borrowers and should not be decide....
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....when borrowed funds are transferred to subsidiaries or group companies or used for purposes unrelated to the operations of the borrower, to the detriment of the financial health of the borrower or of the lender. In any event, the misfeasances has to occur with respect to borrowed funds. 40. The learned Single Judge has held that the investments in MBSL, by MBIL, were not of borrowed funds, or funds lent by the banks, but of their own funds. This fact, notes the learned Single Judge, is acknowledged even in the FSR prepared by the banks themselves, in which it was specifically stated that the investments by MBIL in its subsidiaries "had been fully funded from the substantial cash surplus generated by the company in earlier years from FY 2006 and partially from FCCB issuance in FY 2008". As the learned Single Judge has correctly held, the investments in the subsidiaries were, therefore, made from the internal accruals and cash surpluses of MBIL, and not from borrowed funds. This being the acknowledged position, even as per the documents of BOB and other lender banks in the form of the FSR, there could be no question of any diversion or siphoning off funds being alleged or, consequ....
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....FAR. As has been correctly noted by the learned Single Judge, Clause 3 of the Master Circular of the RBI, governing the CDR Scheme, provided for intensive scrutiny at the stage of approval of a unit for CDR. It specifically required that, if the unit was found to have diverted or siphoned funds, the management of the company was required to be changed. Wherever necessary, the Banks were also required to carry out a forensic audit of the company. The fact that the Banks, including BOB, did not resort to either of these alternative courses of action, despite being aware of the investments made by MBIL in its subsidiaries, indicated that BOB, and other lenders, were completely satisfied regarding the financial feasibility as well as the bona fides of MBIL, and its entitlement to restructuring via the CDR pathway. (ii) The period of review, considered by GSA Associates was 2012-2015. As per the MRA dated 27 December 2012, all inflow and outflow of MBIL's funds had to take place, during a majority of the period of review, through the TRA Account. The TRA Account was directly monitored by all lenders. As such, it could not lie in the mouth of the lenders, including BOB, to contend tha....
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....ia. There has to be deep and pervasive application of mind, and that is sorely lacking in the present case. (v) Tested on the above principles, it cannot be said that the FAR makes out any conclusive case of diversion or siphoning of funds by MBIL. The findings of the learned Single Judge in this regard are unexceptionable. It was, therefore, wholly inappropriate, on the part of the BOB, to commence wilful defaulter proceedings against the respondent solely on the basis of the FAR. In doing so, the BOB appears also to have failed to realize the drastic consequences of declaring someone as a wilful defaulter which, as we have already noted, is akin to a civil death. (vi) Another significant feature of Clause 2.1.3 of the Master Circular is that it requires any identification of wilful default to be made "keeping in view the track record of the borrowers", not based on any isolated transactions or incidents. This requirement is further qualified by adjectivizing the "wilful" nature of the default as having to be "intentional, deliberate and calculated". Mens rea is, therefore, an indispensable element of wilful default. There can be no innocent, or accidental, wilful default. F....
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....e learned Single Judge is eloquent, explicit, and thoroughly reasoned. Any further comments by us would be merely repetitive. We entirely endorse the reasoning and conclusions of the learned Single Judge. Conclusion 47. The appeal is therefore dismissed with no order as to costs. LPA 398/2024 48. This appeal, also at the instance of BOB, is directed against judgment dated 1 March 2024, passed by the learned Single Judge in WP(C) 4128/2023 Ratul Puri v Bank of Baroda. 49. Several of the issues arising in this appeal, and in the impugned judgment of the learned Single Judge, especially the scope of examination by the Identification Committee and the Review Committee, while declaring a borrower as a wilful defaulter, the procedure to be followed in that regard, and the evidentiary value of the FAR, among other issues, overlap with the discussion supra, in respect of LPA 396/2024. 50. Nonetheless, there are certain distinctive features in the present appeal, with which it is necessary to deal. 51. We may note, at the outset, that, as in the case of LPA 396/2024, we are entirely in agreement with the reasoning and conclusion of the learned Single Judge in is judgmen....
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....B was appointed as the Monitoring Institution. MBSL was classified as Class B borrower, as a "corporate/promoter affected by external factors and also having weak resources, inadequate vision and not having support of provisional management". Class C dealt with corporates who have diverted funds, but MBSL was not classified as a Class C borrower. On 28 March 2013, an MRA was executed between MBSL and the lender banks restructuring MBSL's debt, followed by a TRA on 5 June 2013 and a supplementary MRA dated 27 May 2014, the TRA required MBSL to transact, for its day to day functioning, only through the TRA account. On 30 November 2016, the CDR cell decided to exit the lender banks from the CDR package on account of the CDR failure. Following an application filed by one of the creditors under Section 7 of the IBC, the NCLT, vide order dated 14 November 2017, appointed an IRP. The IRP appointed one Haribhakti & Co. LLP, Chartered Accountants, as the forensic auditor of MBSL. Haribhakti submitted its FAR on 1 March 2019 to the IRP. 57. On the basis of the said report, BOB issued a show cause notice to the respondent on 13 March 2020, proposing to classify him as a wilful defaulter as....
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....s of MBSL. (iii) Despite this, the respondent was categorised as a category B defaulter, instead of category C, which applied to entities which diverted or siphoned funds. This also indicated that BOB, and the CDR-EG was, in full awareness of the investments made by MBSL in HPVL, nonetheless of the view that MBSL had not diverted or siphoned any funds. There was no justification, therefore, much later in time, to allege that the investments made by MBSL in HPVL amounted to diversion of funds within the meaning of the Master Circular. (iv) The Flash Report submitted by MBSL as part of the CDR scheme in 2012 also disclosed the investments made by it in HPVL. In its letter dated 18 March 2013, which approved the restructuring package, BOB had noted the investments made by MBSL in HPVL. It was specifically stated, in this regard, as under: "(iii) Sale of surplus assets/ investments There are no significant surplus assets/ investments proposed for sale. The investments are towards equity and preference share capital in its 100% fully owned subsidiary MBPV. These investments are required to be retained in terms of non-disposal undertaking exec....
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....use 2.1.3 read with clause 2.5 of the Master Circular required any "wilful default" to be intentional, deliberate and calculated, based on objective facts and circumstances of the case. Transferring funds to a subsidiary would amount to wilful default, only if, it was intentional, deliberate and calculated. The FAR did not even come to a conclusion that the investments made by MBSL in HPVL amounted to diversion of funds much less that it was intentional, deliberate or calculated. The decision to issue show cause notice, as was apparent from the minutes of meeting dated 24 February 2020, was based solely on the FAR and on nothing else. Clearly, therefore, the decision was misguided. (ix) In this context, it was also necessary to note that even after making investments in HPVL, MBSL created fixed assets of Rs. 477.46 Crores which implied that the loan amount was used for the purpose for which it was granted. The investment in HPVL was towards creation of fixed assets, as it manufactured PV cells, which was a critical component for solar cells manufactured by MBSL. Investments made for creation of assets, which supported the main business of MBSL, could not be regarded as div....
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.... "21. The very premise of the request was a forensic audit report allegedly authored by a particular concern. The said report, at best, is a piece of evidence in the liquidation proceeding and is in no manner conclusive proof of evidence of any illegality committed by any entity. In fact, it is common experience that each and every such forensic audit report contains several disclaimers, restricting the operation of the same to the proceeding in which they are filed, as well as confined to the impression of the authors thereof on the basis of the documents which are available to them. 22. Under no stretch of imagination can such a report be conclusive proof of the allegations against the petitioners." The learned Single Judge has expressed his concurrence with the decision of the High Court of Calcutta, and we do likewise. 67. We are in entire agreement with the learned Single Judge that the Master Circular does not envisage categorisation of a borrower as wilful defaulter without the requisite degree of circumspection and examination. The bank, in each case, was not justified in mulcting the respondent with "wilful defaulter tag" solely on the basis of the F....
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....d strong EPC capabilities and quality manufacturing. It has commissioned more than 50 PV projects in India and Germany. The company has significant customer base in Europe, Asia, Pacific, Middle East and the US. 93. The FRS noted that 2011-12 onwards, the company's financial operations were adversely affected due to (a) global solar photovoltaic market was operating under stress due to huge supply addition from China; (b) China offering USD 43 billion subsidy to its domestic companies, which led to abnormal fall in the prices of solar cell. The company, however, has been able to service its debt till 31.12.2011. The CDR-EG had admitted MBSL in Class-B as per the CDR Master Circular, which applies where MBSL was classified as Class-B borrower under the CDR Scheme, which has Classes from A to D. In the Class-B category, MBIL was classified as "Corporate/promoters affected by external factors and also having weak resources, inadequate vision and not having support of professional management." Class-C is assigned to those corporates who "diverted funds" to unrelated fields with or without lenders' permission. Thus, the lender banks considered MBSL to be a borrower which was af....
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....osal of MBSL for CDR, and nominated PNB as the monitoring institution. PNB was also entrusted to prepare the final draft FRS. MBSL was categorized as a Class-B borrower. 76. On 20 July 2012, a JLM was convened to discuss the final CDR package of MBSL. This was followed by a second JLM on 10 October 2012. In the second JLM, the technical viability study of MBSL received from Feedback Infra, the economic viability assessment received from PNB Investments Services Ltd and Stock Audit Report from Mehrotra and Mehrotra were considered. The core strategy and operating plans of MBSL were found to be technically feasible. On that basis, a final FRS of MBSL was issued by the lender banks, followed by a modified FRS on 21 January 2013. 77. The CDR-EG approved the proposed restructuring package of MBSL on 21 January 2013. In accordance therewith, an MRA was executed on 28 March 2013, restructuring the debt of MBSL, followed by a supplementary MRA on 27 May 2014. MBSL and the lender banks executed the TRA on 5 June 2013. 78. However, as MBSL failed to liquidate its loans, the CDR cell decided to exit the lender banks from the CDR package on 30 November 2016. 79. Following an applic....
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....learned Single Judge has noted that there were two grounds, relied upon by the Identification Committee, to declare the respondent as a wilful defaulter. The first was that MBSL had given interest-free deposit of Rs. 135.50 crores to MBIL under various lease agreements, which was upto 58.82 times the yearly rentals. The second was that MBSL had executed financial lease agreements with MBIL, so that, instead of utilizing the utilities on its own, MBSL leased back the utilities to MBIL on operating lease. Both these acts, according to Identification Committee, constituted diversion of funds within the meaning of Master Circular. 86. The learned Single Judge has examined each of these allegations independently. 87. Apropos the interest-free deposit of Rs. 135.50 crores given by MBSL to MBIL under various lease agreements, the learned Single Judge has observed that they were refundable security deposits and could not, therefore, be regarded as diversion of funds. The observation that they were 58.82 times the yearly rentals was found to be factually incorrect as the total security deposit was only 3.05 times the yearly rental. A chart evidencing this had been placed on record by ....
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....d Single Judge then examined the second ground relied upon by the Identification Committee as constituting wilful default on the respondent's part. This was that, instead of utilizing the utilities, MBSL leased back the utilities to MBIL on operating lease. 92. This conclusion was also found to be unsustainable. The SEZ was owned by MBIL. Lease agreements were executed by MBIL to enable MBSL to manufacture in the SEZ. As per the approval letter issued by the Ministry of Commerce, Govt. of India, the right and responsibilities to operate utilities in the SEZ exclusively remained with MBIL. As per approval dated 22 May 2007, MBSL only received permission to manufacture thin film and crystalline silicon based solar modules. To comply therewith, however, MBSL had necessarily to give back the operation of power generation and utility assets for the operations to MBIL on operating lease. Against these leases, MBIL agreed to pay MBSL lease rent of Rs. 382.77/- crores. 93. Thus, over a period of 10 years, MBIL would have paid MBSL an amount of Rs. 382.77 crores under the operating leases, against Rs. 390.05 crores paid by MBSL to MBIL under the financial leases. Thus, there was....
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....t on subsidiaries. While approving the CDR package, MBSL was advised to retain the said investments and not to dispose of them. Even in the FRS issued by the lender banks, the investment made by MBSL in HPVL was noted. It was observed that the investment was required to be retained as it was a strategic investment, as HPVL was the supplier of PV cells to MBSL for use in its assembly modules. 100. Finally, after all these, MBSL was characterized only as a Class B borrower, and not as a Class C borrower, though entities which resorted to diversion of siphoning of funds had to be treated as Class C borrowers. 101. In these circumstances, the learned Single Judge has held that the investments made by MBSL in HPVL could also not be regarded as diversion of funds. 102. Following this, the learned Single Judge has dealt with the value and effect of the FAR and the responsibilities of the Identification Committee to which we have already alluded earlier. 103. As in the case of the judgments of the learned Single forming subject matter of appeal in LPA 396/2024 and LPA 398/2024 and, for the same reasons, we do not find that any case exists, for us, to interfere with the extremel....
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...., the examination has to be based on an objective examination of the facts and circumstances of the case. Isolated, or stray, incidents of default cannot be regarded as wilful default, and the decision has also to factor in the track record of the borrower. Facts which were known at the time of approval of the CDR package, and which were not regarded as wilful default at that time, cannot suddenly be regarded as wilful default at a later stage, without any additional material justifying such a change in stance. The categorization of the borrower is a factor of no little significance in this regard. If a borrower is diverting, or siphoning, funds, he has to be placed in the appropriate category. Holding a borrower, who is in Category B, to be a wilful defaulter, is ex facie incongruous. Again, while arriving at the conclusion of diversion or siphoning of funds, the meaning and import of the expressions, as defined in the Master Circular, has scrupulously to be borne in mind. In either case, the funds have to be borrowed funds. At each stage, therefore, there has to be a conscious examination of whether the funds, the dealing with which is being regarded as an act of wilful default, ....
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....l Government, may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred: Provided that for the financial creditors, referred to in clauses (a) and (b) of sub-section (6-A) of Section 21, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent. of the total number of such creditors in the same class, whichever is less: Provided further that for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent. of the total number of such allottees under the same real estate project, whichever is less: Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial credi....