TaxTMI 
TaxTMI 
2025 (8) TMI 1149
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....s been preferred under Section 61 read with 60(5) (c) of the IBC, 2016 against order dated 11.06.2024 passed by the National Company Law Tribunal, Kolkata arising out of IA No. 237/KB/2024 in CP (IB) No. 666/(KB)/2020, whereby the IA moved by the appellant has been dismissed. 2. Necessary facts which are required for disposal of the instant appeal are that the CIRP of the CD namely, Ashiana Landcraft Realty Pvt. Ltd. was initiated on 11.01.2022 and one Jayesh Sanghrajka was appointed as the IRP who was later on confirmed as the RP. Case of the Appellant 3. The case of the appellant as is evident from the appeal memo is that the appellant and other investors (in total 188) were financial creditors (holding Non-Convertible Debentures) (for short 'NCD') of the CD and have invested in CD under a Portfolio Management Scheme facilitated by Piramal Funds Management Pvt. Ltd. herein after called Piramal Fund Manager. 4. These NCD were secured with IDBI Trusteeship which was appointed as trustee for the NCD holders and during the course of CIRP the NCD holders have informed the RP about their adversarial relationship with Piramal and IDBI trustee and in this regard an FIR was al....
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....this way funds were illegally transferred to the Piramal fund manager who was neither a financial creditor nor a trustee of the NCD holders and thus the resolution plan has been violated and the payment is also shown to have been made by one 'Perfect Megastructure Pvt. Ltd. which is/was not the resolution applicant. It is also stated that order passed by the Hon'ble High Court of Delhi was only with regard to the quashing of the Criminal Proceedings and it has nothing to do with the proceedings pending before the NCLT or the resolution plan approved by the NCLT, Kolkata. 8. It is also stated that the NCLT has illegally rejected the application moved by the appellants by passing impugned order of date 11.06.2024 by concluding that NCD holders have received more than, which was due in the resolution plan, while the Piramal fund manager was not having any locus at all. It is further stated that the impugned order is liable to be set aside and Respondent be directed to release Rs. 16.10 Crore and also allotment of 10 lakh class B shares to 188 NCD holders, which they ought to get under the plan. 9. Respondent No. 2 who is the SRA has filed reply on behalf of himself and Responden....
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....nager. It is also stated that since the NCD holders have received more than their due under the settlement which has also been acknowledged by the Hon'ble High Court of Delhi and they are not entitled to receive any thing under the plan. 12. The intervenor/Piramal Fund Manager in its reply has stated that the aforementioned 188 NCD holders had invested in the CD about Rs. 80 Crore however, some differences had arisen between some of the NCD holders and the fund Manager and a FIR was lodged in this regard by some of the NCD holders however, the parties resolved their disputes and differences in lieu of order dated 05.09.2023 passed by the Hon'ble High Court of Delhi and by virtue of the same order, as amended vide order dated 20.09.2023, the Piramal Fund Manager had issued demand draft on 18.09.2023 for a sum of Rs. 25 lakhs in favour of the applicants (who were before the Adjudicating Authority) and the respective shares of the other NCD Holders and since the appellant had received more than their due in the resolution plan they cannot re agitate the same issue again and again. 13. It is further stated that on 05.04.2024, the matter was finally disposed of by the Hon'ble High....
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....h Court of Delhi was to save their skin from the Criminal prosecution and the said money may never be adjusted with the money which was due to the appellants under the resolution plan approved by the Tribunal. 18. It is vehemently submitted that the text and tenor of the orders passed by the Hon'ble High Court of Delhi on 05.09.2023, 20.09.2023 and 05.04.2024 as well as of date 19.07.2024 passed in modification application moved by the appellants would clearly reflect that the appellants were held free to agitate their grievances at a proper forum and thus it is clear that the money which has been paid by the Piramal Manager under the orders of Hon'ble Delhi High Court has nothing to do with the money receivable by the 188 Debenture Holders under the plan. Thus the Tribunal has committed manifest illegality in rejecting the application moved by the appellants. 19. Ld. Counsels appearing for the Respondents vehemently opposes the submissions made by the Ld. Counsels for the appellants on the score that under the plan only Rs. 16.10 Crore were required to be paid by the SRA to the NCD holders, while the Piramal Fund Ma....
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.... invested by the NCD holders in the CD and during the CIRP the claim of Rs. 146.92 Crore was admitted by the RP. However, in the resolution plan submitted by Resolution Applicant, IDBI Trusteeship, of the PMS was proposed to be paid only Rs. 16,10,87,665/- (21.47% of the total debt) and 21.48% of the total pay-out. It is also reflected that in the CoC constituted, IDBI Trusteeship Services- Piramal Fund Manager were given 13.5% Voting Share. The Resolution Plan submitted by Respondent No. 2 was approved by the CoC with a majority vote share of 78.56%. The said Resolution Plan was approved by the Adjudicating Authority vide order dated 11.08.2023 passed on an IA No. 921/2022 presented by the RP. In this plan the secured financial creditors were allotted upfront amount of Rs. 65 Crores on Pro-rata basis and in addition to the same another 10 Crores were provided, under the same terms as per their share in the list of creditors and they were further allotted 10 lakh class B equity shares of Rs. 10 each. The share of 188 Debenture holders represented by the IDBI Trustee and Piramal Fund Manager was admittedly 21.48% i.e. Rs. 16,10,87,665/- and 2,14,800 class B shares of Rs. 10 (share v....
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....money under the settlement order acknowledged by the Hon'ble High Court of Delhi, it is conspicuously reflected that in pursuance of an FIR lodged by some of the Debenture Holders against the Piramal Fund Manager and IDBI trustee on 30.11.2021 a Criminal Writ Petition bearing no. 2555 of 2023 was filed by Piramal Fund Manager and on 05.09.2023 Hon'ble High Court of Delhi passed an order. Since the interpretation of this order is being made by both the parties in their favour it appears necessary for us to reproduce the relevant part of the said order in verbatim which is placed herein below: Relevant part of the Order dated 05.09.2023, passed by Hon'ble High Court of Delhi in Criminal Writ Petition No. 2555 of 2023. "16. Learned counsel for petitioner submits that the criminal jurisdiction has been resorted to by some investors, including the complainant, in a purely civil dispute. Even though no offence is made out on the face of it, however, as a gesture of good-will and on the asking of this Court, the petitioner without prejudice to his rights and contentions, admission of guilt, liability or wrong-doing by the petitioner and also while denying any liability, contra....
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....tionate to his investment, as and when received pursuant to the CIRP of Ashiana; (iv) All contentions of only such investor as well as of the petitioner would remain open to be adjudicated in appropriate proceedings in accordance with law. 18. Learned counsel for petitioner submits that the petitioner undertakes to extend full cooperation for efficient management of the entire process under the aegis of any retired Judge which may be appointed by this Court. It is further submitted that the petitioner, on facts, is without fault. Consequently, it is prayed that till such time the process of distribution is underway, all authorities, agencies, including the Police and or the regulator be restrained from acting on or taking coercive steps pursuant to complaints relating to the Project. 19. On the other hand, learned counsel for respondent No.2 has disputed the aforesaid facts. However, submits that the investors made the payment in the year 2017 and now 2023 is going on and the respondent No.2 along with 55 complainants, may not take any coercive steps against the petitioner and shall withdraw/get quashed all the proceedings pending before any authority or ....
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..... 27. Since the petitioner is willing and ready to deposit the amount of Rs.80.53 crores within two weeks therefore till further orders all the proceedings (civil, criminal) against the petitioner arising out of present case and pending before any authority, tribunal, including SEBI, shall remain stayed, except pending proceedings before NCLT. 28. It is made clear that the amount deposited before the learned Registrar General of this Court in the form of Fixed Deposit availing sweep-in facility shall be released to investors subject to fulfilment of the aforesaid conditions. 29. The disbursements in aforesaid terms shall be made for a period of 3 months from the date the Hon'ble Administrator assumes the charge. 30. After the conclusion of the tenure the entire remaining unclaimed amount shall be returned to the petitioner. 31. Arguments heard in part. 32. A copy of this order be transmitted to the concerned NCLT Bench for information. 33. For further arguments, renotify on 02.11.2023". Relevant part of the Order dated 20.09.2023, passed in Criminal Writ Petition 2555 of 2023 by Hon'ble High Court of Delhi. ....
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.... 5. In view of the above, the petition is disposed of. 6. The Registry is directed to handover the original undertaking given by the Investors pursuant to order dated 05.09.2023 to the petitioner. Photocopy of the same shall be retained by the Registry for the sake of record". Relevant part of the Order dated 19.07.2024, passed by the Hon'ble Delhi High Court in Crl. W.P. No. 2555 of 2023. "3. This Court vide order dated 05.09.2023 appointed Mr. Pradeep Nandrajog, Former Chief Justice of Rajasthan High Court (Mobile: 9818000130), High Court of Bombay and Former Judge of this Court as Administrator, to disburse the amount in favour of the investors who were willing to withdraw their respective claims and legal proceedings as given in Annexure A annexed with Offer of Proposal. Accordingly, all 188 investors settled their case and money in terms of order dated 05.09.2023 was disbursed to them. 4. By way of present application applicants are seeking direction to release Rs.16.10 crores to all the 188 debenture holders proportionally in terms of order dated 11.08.2023 passed by the NCLT, Kolkata Bench. 5. In view of the averments made in the presen....
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....it pertaining to which certain objections with regard to the non-payment of interest were made by their Counsel before the High Court. However, in paragraph no. 21 of the said order the Hon'ble Court has recorded that since the Petitioner (Piramal Fund Manager) has come forward on his own as a good gesture to deposit Rs. 80.53 Crore for disbursement to 188 investors, the Piramal Fund Manager was directed to deposit this money with the Registrar General of the Hon'ble High Court of Delhi and a notice was issued to all the 188 investors individually by publication in two leading National Newspapers. Hon'ble Justice Pradeep Nandrajog, Former Chief Justice of the Rajasthan High Court was appointed as an administrator to supervise the whole process and it was specifically held in para no. 25 of the aforesaid order of date 05.09.2023, that investors who are willing to withdraw their respective amount from the amount deposited by the Piramal Fund Manager shall withdraw/get quashed all the proceedings initiated by them against the Piramal Fund Manager. Specific stipulation is made in Paragraph no. 26 pertaining to the fact that investors who want to continue with the proceedings against....