TaxTMI 
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2025 (8) TMI 1074
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.... in IA No.1661 of 2023 in CP (IB) No.3794/MB/C-III/2019 respectively. 2. Brief facts necessary to be noticed for deciding both the Appeals are:- 2.1. Corporate Debtor- "M/s. Neptune Developers Private Limited" is engaged in Real Estate Development. Central Bank has sanctioned term loan to the Corporate Debtor. The project land measuring 26.05 acres at Village Ambivali, Tal. Kalyan and structures constructed thereto were exclusively charged in favour of the Central Bank of India. The Appellant filed Section 7 application for initiating Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor which was admitted on 16.07.2021. During the CIRP process, Resolution Professional appointed two registered valuers namely- (i) Mr. Kunal Kantilal Vikamsey and (ii) M/s. Adroit Appraisers and Research Pvt. Ltd. as per Regulation 35 of the CIRP Regulations, 2016. In the CIRP, Shree Naman Developers Pvt. Ltd., the Respondent herein submitted a Resolution Plan. The Resolution Plan submitted by Shree Naman Developers Pvt. Ltd. was approved by the CoC with 85.35% vote shares on 31.03.2023. The Appellant who has 11.83% voting share in the CoC did not vote in favour of the plan. Re....
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.... for the Appellant, Shri Abhijeet Sinha, Learned Senior Counsel for the Resolution Professional and Shri Gaurav Mitra, Learned Senior Counsel for the Respondent No.6- Edelweiss Asset Reconstruction Company Limited. We have also heard Counsel for the SRA and Counsel for the Interveners- Homebuyers. 4. Shri Ravi Raghunath, Learned Counsel for the Appellant submits that the Appellant's IA No.2694 of 2023 was not correctly decided. Appellant has prayed that fresh valuation be obtained and earlier valuation be set aside. Appellant has also prayed that till the third valuation is obtained, hearing in plan approval application be deferred. However, after the order dated 21.01.2025 partly allowing the application of Appellant, before even third valuation report was filed on record, the Adjudicating Authority proceeded to hear the plan approval application. It is submitted that on 31.01.2025, no concession was recorded before the Adjudicating Authority that the Appellant has no objection if Rs.26.83 Crores be set apart. It is submitted that the Appellant has already filed Company Appeal (AT) (Insolvency) No.486 of 2025 challenging the order dated 21.01.2025. It is submitted that the third ....
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....he Adjudicating Authority that by keeping Rs.26.83 Crores set apart, proceeding can proceed. It is not open for the Appellant to now resile from its agreement which is recorded by the Adjudicating Authority. CoC have in its commercial wisdom has approved the Resolution Plan. It is not open for the Appellant- a dissenting creditor to challenge the approval of the plan by the CoC and the order passed by the Adjudicating Authority approving such plan. Appellant is obliged to accept the third valuation report which valuer was appointed on objection raised by the Appellant. The question of valuation cannot be allowed to be raised by the Appellant in this Appeal. It is submitted that the third valuer was appointed from the approved panel of the Central Bank of India and when the valuation was given by the third valuer, Appellant cannot be allowed to challenge the same. It is submitted that the Monitoring Committee has even given option to the Appellant to take entire 'Swarajya Project' with liability which offer was not even acceptable to the Central Bank of India. Appellant is entitled for pay outs as per Section 30(2)(b). There is no error in the order passed by the Adjudicating Author....
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....l Vikamsey 8.39 Crore 11.99 Cr. 2. M/s. Adroit Appraisers and Research Pvt. Ltd. 2.21 Cr. 3.15 Cr. 11. The Resolution Plan came for consideration for approval before the meeting of the CoC in the 9th CoC meeting held on 16.03.2023. The Resolution Plan submitted by Shree Naman Developers Pvt. Ltd. was approved with 85.35% vote share as a result of e-voting. After the plan was approved, an application was filed by the Resolution Professional being IA No.1661 of 2023 for approval of the plan. Central Bank filed IA No.2694 of 2023. In the IA, several prayers were made by the Central Bank which were to the following effect:- "a) That all Resolution Applicants inter alia the successful Resolution Applicant (Respondent No. 2 herein) be directed to modify their Plan on receipt of fresh valuation reports and fresh voting be ordered thereafter. b) That Resolution Professional (Respondent No. 1 herein) be directed to take necessary steps and include proper assets of the CD to be valued at Project Swarajya. c) That the valuation conducted by Mr. Kunal Kantilal Vikamsey and M/s Adroit Appraisers and Research Pvt. Ltd. be set aside as the same is. fundamentally flawed and against ....
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....al was authorised to appoint third valuer. Resolution C-1 was passed for setting aside Rs.26.83 Crores being the disputed liquidation value of the security charged to Central Bank of India which resolution was approved with 78.14%. On 31.01.2025, the plan approval came for consideration where Learned Counsel for the Central Bank of India expressed his agreement to the setting aside of Rs.26.83 Crores being the disputed liquidation value of the security held by the Central Bank of India which has been noted by the Adjudicating Authority in the impugned order dated 25.03.2025 in paragraph C (vi) which is to the following effect:- "vi. When the matter was listed for hearing on 31.01.2025, Adv. Rathina Maravarman, appearing for the Central Bank of India, agreed to the setting aside of Rs. 26.83 crores, being the (disputed) liquidation value of security held by Central Bank in Project Swarajya, towards the settlement of the claims of Central Bank of India which is a dissenting secured financial creditor." 14. The Adjudicating Authority by the order dated 25.03.2025 after holding the Resolution Plan is compliant of provision of Section 30(2) has approved the plan. Counsel for the Appe....
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....panies (Registered Valuers and Valuation) Rules, 2017; (ii) "significantly different" means a difference of twenty-five per cent. in liquidation value under an asset class and the same shall be calculated as (L1-L2)/L1, where, L1= higher valuation of liquidation value L2= lower valuation of liquidation value.] (c) the average of the two closest estimates of a value shall be considered the fair value or the liquidation value, as the case may be. [(2) After the receipt of resolution plans in accordance with the Code and these regulations, the resolution professional shall provide the fair value, the liquidation value and valuation reports to every member of the committee in electronic form, on receiving an undertaking from the member to the effect that such member shall maintain confidentiality of the fair value, the liquidation value and valuation reports and shall not use the information contained in the valuation reports to cause an undue gain or undue loss to itself or any other person and comply with the requirements under sub-section (2) of section 29.] (3) The resolution professional and registered valuers shall maintain confidentiality of the fair value and the liquid....
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....es 2 10 201 233.00 2 NDL Plumb Art (India) 1 18 2 233.00 3 NDL Plumb Art (India) 1 6 703 387.00 4 NDL Plumb Art (India) 1 6 705 387.00 5 NDL Plumb Art (India) 1 8 705 387.00 6 NDL Plumb Art (India) 1 13 701 387.00 7 NDL Plumb Art (India) 1 16 701 387.00 8 NDL Plumb Art (India) 1 16 706 387.00 9 NDL Plumb Art (India) 1 16 1 387.00 10 NDL Plumb Art (India) 2 2 712 233.00 11 NDL Plumb Art (India) 2 11/A 402 233.00 12 NDL Plumb Art (India) 2 11/A 304 233.00 13 NDL Plumb Art (India) 2 11/B 7 233.00 14 NDL Plumb Art (India) 2 11/B 305 233.00 15 NDL Plumb Art (India) 2 11/B 501 233.00 16 NDL Plumb Art (India) 2 4/B 707 233.00 17 NDL Plumb Art (India) 2 5/A 706 233.00 18 NDL Plumb Art (India) 2 5/A 704 233.00 19 NDL Plumb Art (India) 2 6 107 233.00 20 NDL Plumb Art (India) 2 6 601 233.00 21 NDL Plumb Art (India) 2 6 603 233.00 22 NDL Plumb Art (India) 2 6 605 233.00 23 NDL Plumb Art (India) 2 6 606 233.00 24 NDL Plumb Art (India) 2 6 607 233.00 25 NDL Plumb Art (India) 2 6 702 233.00 26 NDL Plumb Art (India) 2 6 70....
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....on the assumption that the outstanding payment of the contractors has been set-off against these flats." 19. From the above statement made by third valuer, it is clear that the MoU and allotment letter for 66 units was noticed by third valuer. It is clear that against the outstanding amount to be paid to various contractors involved in the construction the Flats have been given in lieu of the outstanding payments which is clearly noticed above in the report of the third valuer. The above was reason given by third valuer that due to above reason, the above flats are not valued in the value of the Corporate Debtor. We do not find any infirmity in the said observations of the third valuer, when the said units were given in the lieu of outstanding payments to be paid to them by the Corporate Debtor, the Corporate Debtor was not to receive any amount of the said units and addition of the value of the units in the value of the Corporate Debtor was not found acceptable by the third valuer. The above approach by the third valuer cannot be said to be perverse or unacceptable. 20. The valuers appointed in the CIRP process are the registered valuers who are registered valuers and they are e....
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....and it is at once clear that the members of CoC were fully satisfied with and endorsed the process of valuation and even re-evaluation as undertaken by the resolution professional. Particularly, the minutes of second, fourth, sixth and seventh CoC meetings stand testimony to the fact that the requirements of Regulation were scrupulously followed and complied with and there had not been any doubt in CoC as regards the process of valuation as also supplying of fair and liquidation value to the members of CoC. The detailed findings of the adjudicating authority in this regard ( reproduced in para 60 hereinabove ) make it clear that the adjudicating authority independently applied its mind to the process of valuation and presentation of the matter to CoC. Rejection of all the objections in that regard by NCLT, called for no interference. 136. The Appellate Tribunal appears to have unnecessarily and rather unjustifiably presumed that there had been blatant statutory violations and irregularities. Even if certain issues were raised in some of the meetings of CoC as regards the process of valuation, the clarifications from the resolution professional and the steps taken by him for valu....