TaxTMI 
TaxTMI 
2025 (8) TMI 1074
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....bai Bench, Court No.III in IA No.2694 of 2023 and 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 sh....
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.... 3. We have heard Shri Ravi Raghunath, Learned Counsel 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 th....
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....s.26.83 Crores, Appellant counsel having contended before the 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....
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.... S. No. Valuer Liquidation Value Fair Value 1. Mr. Kunal Kantilal 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 Vikams....
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.... and approved the appointment of third valuer for ascertaining the fair value and liquidation value for "Project Swarajya". The Resolution Professional 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 Au....
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....tting an estimate of the value computed in the manner provided in clause (a). Explanation.- For the purpose of clause (b), (i) "asset class" means the definition provided under the Companies (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 los....
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....nd Allotment letter for 66 Units that are bartered with various contractors against the outstanding dues to be paid by NDL. The flat wise list is as below : Sr. No. Builders Contractor Sector Building Flat No. Carpet Area in sq. ft. 1 NDL Agasti Enterprises 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 Ar....
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.... Usha Stones Supplying Company 1 6 706 387.00 56 NDL Ultracon Structural Systems Pvt. Ltd. 2 4A 607 233.00 57 NDL Ranjanben Gangji Gala 1 A-2 702 233.00 58 NDL Ranjanben Gangji Gala 1 A-2 704 233.00 59 NDL Ranjanben Gangji Gala 1 A-2 705 233.00 60 NDL Abanikumar K Mishra 1 A-4 703 233.00 61 NDL Sangeeta K Mishra 1 A-7A 301 387.00 62 NDL Jayaben Shah 2 B- 16A 703 387.00 63 NDL Nirmala- Amit Gala 1 A-2 707 233.00 64 NDL Nirmala- Vinay Gala 1 A-5 007 233.00 65 NDL Plumb Art (India) 2 B-18 4 387.00 66 NDL Insign Technology Private Limietd 2 15 604 387.00 As per the MOUs and allotment letter, the said flats were allotted to various contractors involved in the construction against the outstanding amount to be paid to them. As these flats have been given in lieu of outstanding payments to be paid by NDL, we have not valued the same. The following is pertinent to note: The valuation of these barter flats is not considered....
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....ch Resolution Plan can be interfered with, CoC in its commercial wisdom has approved the Resolution Plan which does not require any interference at the instance of the Appellant in this Appeal." 21. We may also notice the judgment of the Hon'ble Supreme Court in "M.K. Rajagopalan vs. Periasamy Palani Gounder- (2024) 1 SCC 42" where the Hon'ble Supreme Court had approved the decision of the Adjudicating Authority and it was found that the process for valuation was undertaken by the Resolution Professional in accordance with law. In paragraphs 134, 135, 136, 137 are as follows:- "134. The Appellate Tribunal has laid great emphasis on the point that commercial wisdom of CoC was materially affected for want of existence of a valid and actual valuation report and sharing of all the relevant facts pertaining to the valuation with the members of CoC leading to violation of Regulations 27 and 35 of the CIRP Regulations. We are unable to agree. 135. It has rightly been contended on behalf of the appellants that the members of CoC were provided with fair value and liquidation value after obtaining a confidentiality undertaking. We have reproduced hereinbefore all the mat....