TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 134
X X X X Extracts X X X X
X X X X Extracts X X X X
....6 of 2025 has been preferred by the Successful Resolution Applicant (SRA) i.e. Radha Buildtech (India) Pvt. Ltd. of Corporate Debtor Premia Projects Ltd. challenging the impugned order of date 03.06.2025, whereby the Tribunal on an application moved by about 75 allottees/homebuyers under Section 7 of the Insolvency and Bankruptcy Code, 2016 has been allowed and the CIRP of CD M/s Solitaire Infomedia Pvt. Ltd. has commenced. 2. Company Appeal (AT) (Ins) No. 935 of 2025 has been preferred by 4 homebuyers and allottees of residential units in the project undertaken by Prima Projects Ltd. challenging the same order whereby the CIRP of the CD M/s Solitaire Infomedia Pvt. Ltd. has been commenced. 3. Both these appeals though have been preferred by different set of appellants but are connected with the same impugned order and for the sake of convenience are been disposed of by passing this common order. 4. Brief facts necessary for the disposal of these appeals are that on 11.03.2009, the Greater Noida Industrial Development Authority herein after called (GNIDA) allotted a plot of a land measuring 45398.50 sqm situated at Plot No. 201, Sector KP-V, Greater Noida West to Solitaire Infom....
X X X X Extracts X X X X
X X X X Extracts X X X X
....id application was rejected by the Adjudicating Authority and feeling aggrieved by the same an appeal was filed before this Appellate Tribunal being CA (AT) (Ins) No. 1069 of 2020 wherein this Tribunal has passed an order on 18.11.2021 holding that it is case where joint CIRP would be required however the same could only be possible if there is an application for admission of CIRP under the Code against the land owner company i.e. Solitaire Infomedia Pvt. Ltd. and thus the matter was remanded back with direction to consider the application for commencement of CIRP against land holding Company i.e. Solitaire and thereafter to further consider consolidated/joint CIRP of both the entities. 8. It is further reflected that one allottee, Mr. Harish Kumar has also filed an application seeking initiation of CIRP against the Solitaire Infomedia Pvt. Ltd. which was however dismissed by the Adjudicating Authority on the grounds of maintainability and an appeal filed against the same was also dismissed on the ground of delay. 9. The Appellant upon the publication of Form G by the Resolution Professional of Premia Projects Ltd. submitted his Expression of Interest (EOI) as well as thereafter ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is also submitted that the land in question was handed over to the Premia Projects Ltd. vide a collaboration agreement wherein the development rights were conferred upon Premia and hence such development rights being the asset of the Company has been taken care of in sufficient terms in the resolution plan approved by the CoC. 17. It is vehemently submitted that the Adjudicating Authority has completely misinterpreted the order of this Appellate Tribunal dated 18.11.2021 and has not even discussed and deliberated upon the issue whether the Respondent No. 4 were the actual Financial Creditors of the Solitaire Infomedia Pvt. Ltd. or not? 18. It is further submitted that the Adjudicating Authority has failed to appreciate that the biggest creditor of Solitaire Infomedia Pvt. Ltd. is Greater Noida Industrial Development Authority and the same has already been impleaded in the CIRP of Premia Projects Ltd. vide order dated 12.11.2024 of the Adjudicating Authority. 19. It is submitted with considerable force that once if a resolution plan is approved by the CoC it is a binding contract between the CoC and the SRA and keeping in view the law laid down by the Hon'ble Supreme Court in Ebi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... challenge the initiation of CIRP against the Solitaire Infomedia Pvt. Ltd., as he is a resolution applicant of SRA of Premia. 25. Ld. Counsel for the appellants in CA (AT) (Ins) No. 935 of 2025 submits that it was after multiple efforts and delays. Ld. Tribunal vide order dated 03.03.2023 has directed the Resolution Professional of the Premia Projects Ltd. to complete the CIRP on war footing basis and thereafter the CoC of Premia had taken various decisions for inviting the resolution plan and M/s Radha Buildtech Pvt. Ltd. has submitted its resolution plan which was approved by the CoC of the Premia Projects Ltd. and an IA No. 6/2024 was filed by the resolution professional before the NCLT for its approval and the same is still pending. 26. It is vehemently submitted that in the CIRP of Premia Projects Ltd. claims were invited from the Homebuyers of both i.e. Premia Projects Ltd. and Solitaire Infomedia Pvt. Ltd. and the Homebuyers were also members of the CoC of the Premia Projects Ltd. thus initiation of the CIRP of the Solitaire would complicate the resolution process of Premia Projects Ltd. 27. It is also submitted that Premia Projects Ltd. & Solitaire Infomedia Pvt. Ltd. a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd the contingent language used for that purpose demonstrates that the appellant itself lacks confidence in the legality of the proposed merger of the two companies. While drawing the attention of this Bench towards the resolution plan it is submitted that a misstatement has been quoted therein by stating that the initiation of joint CIRP was considered to be the one option by NCLAT and it can also be resolved through the process of merger. This interpretation of the order of this Hon'ble Tribunal is beyond imagine and has been done with some ulterior motive. 33. It is also submitted that so far as the CIRP of the Solitaire Infomedia Pvt. Ltd. is concerned the appellant in CA (AT) (Ins) No. 876 of 2025 is not having any locus at all and therefore its appeal is liable to be dismissed only on this score. 34. Ld. Counsel for the Respondent No. 2 in CA (AT) (Ins) No. 935 of 2025 submits that Adjudicating Authority while passing the impugned order has failed to consider the complete set of facts and circumstances and has passed the order in a mechanical manner without acknowledging that the admission of CIRP against Solitaire Infomedia Pvt. Ltd. which is subsidiary company of M/s Prem....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... followed by the Adjudicating Authority and the initiation of CIRP against the Solitaire Infomedia Pvt. Ltd. under the impugned order would result in various complexities and duplication of claims as well as further delays in the CIRP of Premia. 40. Ld. counsel for Respondent number 5 to 79 in CA (AT) (Ins) No. 935 of 2025 in their written submissions stated that this appeal has become wholly infructuous and is liable to be dismissed as such in view of subsequent material developments which have been concealed by the appellants as both, resolution professionals of Premia Project limited and solitaire Infomedia private limited have filed appropriate consolidation applications i.e. IA number 3369 off 2025 and IA number 3373 of 2025 respectively before the adjudicating authority in compliance of the directions given by a coordinate bench of this appellate tribunal in paragraph number 36 and 37 of the order dated 18th November 2021. 41. It is further submitted that a coordinate bench of this appellate terminal in its order dated 18th November 2021 specifically directed at first to consider the initiation of CIRP against the solitaire infomedia private limited and secondly, only there....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... binding on all stakeholders, therefore no illegality has been committed by the tribunal in accepting the application. 46. It is further submitted that the resolution professional of premia projects limited has already attempted to obstruct the CIRP of M/S Solitaire Infomedia Pvt. Ltd. by filing an IA No. 3714 of 2024 requesting to de reserve the order dated 10th June 2024, however this application of the RP was dismissed by the adjudicating authority on 22nd may 2025. Moreover, the resolution plan submitted by the SRA and approved by the COC is still pending for approval before the adjudicating authority. 47. It is further submitted that the resolution plan for Premia Project Ltd. was approved on 27th December 2023 by the COC is fundamentally flawed and was legally impermissible as it has not considered an FIR lodged against the corporate debtor and its promoters. While drawing the attention of this Appellate Tribunal towards the submissions of Ld. Counsel for the appellants that in the Resolution Plan submitted by the SRA there is provision of merger of both the entities, it is submitted that in the Resolution Plan it is stipulated that 100% subsidiary of Premia Project Ltd. na....
X X X X Extracts X X X X
X X X X Extracts X X X X
....factual matrix of this case is not in dispute. 50. It is evident that applicants before the tribunal were a group of home buyers who have booked their flats in the project namely Premia Projects Ltd. and the Premia had issued allotment letters and provisional allotment letters to these applicants and agreements were also executed with many allottees and promise was also made to deliver possession of their Flats within the stipulated time. These 75 home buyers have moved the petition under Section 7 of the insolvency and Bankruptcy Code, 2016 bearing Company Petition No. 644 of 2023 before National Company Law Tribunal Court No. 5 New Delhi and the total allotees of premia projects limited being 566, the 75 home buyers are above the benchmark as provided under Section 7 of the IBC. 51. It is also transpired that the Corporate Debtor of the instant case namely M/S Solitaire Infomedia Pvt. Ltd. was allotted a land measuring 45398.50 sq. mtr. situated at plot number 201, Sector KP- V, Greater Noida on 11th March 2009. It also appears admitted to the parties that on 1st October 2012 Mr. Tarun Sheinh became the director of Solitaire And on the same day the Solitaire entered into a coll....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing Authority requesting for taking charge of the assets of Corporate Debtor Solitaire or to allow joint CIRP of Solitaire and Premia. The aforesaid application moved by the Resolution Professional of Premia was rejected by the Adjudicating Authority on 29th October 2020 and feeling aggrieved by the same an Appeal was preferred before this Appellate Tribunal being Company Appeal No. 1069 of 2020. This Appellate Tribunal has decided the aforesaid appeal on 18th November 2021 and amongst others hold that a joint CIRP of both companies could only be possible if there is an application for admission of CIRP under section 7 of the IBC against the land owning company namely Solitaire and while remanding the matter directed that Tribunal to consider the CIRP of Solitaire and thereafter the joint CIRP of both. 55. In the meantime, one of the appellant of Company Appeal (AT) (Ins) No. 935 of 2025 namely Shri Harish Kumar has filed a Company Petition bearing CP No. 740 of 2021 on 8th December 2021 under Section 7 of the IBC requesting to initiate CIRP against Solitaire, however the aforesaid petition was dismissed by Ld. Adjudicating Authority on 22nd December 2022 due to non-meeting of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....premia in this meeting has also informed that the Resolution of the premia depends upon the insolvency process of its subsidiary company i.e. Solitaire. An IA No. 4132 of 2020 appears to have been filed by the RP of the premia for seeking the control over the assets of Solitaire on the ground that they are connected to the Premia Projects Limited. As said earlier this application however was dismissed on 29th October 2020 and on an appeal preferred by the RP of Premia before us the same was decided on 18th November 2021 and the matter was remanded back with the direction to consider the CIRP of the Solitaire and thereafter to consider consolidated joint CIRP of both entities. 58. In the meeting of the CoC of Premia dated 20th December 2023, minutes of which are also on record, Resolution Plan submitted by SRA Radha Buildtech was approved with certain modifications. Perusal of these minutes would reveal that at the outset one of the Applicant in CA (AT) (Ins) No. 876 of 2025 i.e. Mr Kapil Kumar (Before the Adjudicating authority) has raised certain queries/objections with regard to the submission of plan in terms that they have requested consistently to the RP and Authorised Repres....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er to deal with this submission of Ld. Counsel for the Appellant Radha Buildtech it is in the interest of things to dwell deep into the judgment passed by this Appellate Tribunal of date 18.11.2021 in CA (AT) (Ins) No. 1069 of 2025, as all the parties are relying on it, however with different interpretation. The Appellants and RP of Premia are of the view that the course adopted by the COC of Premia of providing merger of Solitaire in Premia, in the Resolution Plan submitted by SRA has achieved what was required by the Appellate Tribunal, while Respondents are of the view that when this Appellate Tribunal has directed to consider the CIRP of Solitaire at first and then to move for consolidated/joint CIRP of both, the duty of all was to move in that direction more so when the judgment of this Appellate tribunal was not challenged by anyone at any higher forum and the Solitaire as well as the Premia were parties before this Tribunal. The adjudicating authority in the impugned order has also relied on certain paragraphs of the aforesaid Judgment and paragraph 22, 23, 28, 29, 31, 34, 35, 36 and 37 of the same are also being reproduced by us in verbatim as under; "22. It is therefore ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ccessful resolution of the Corporate Debtor. Later, if the Corporate Debtor were to go into liquidation, there would be hardly any tangible assets available for liquidation, and hence the creditors would be left completely high and dry. What happens to the home-buyers who have sunk their hard-earned incomes, often their lifetime savings, in the booking and payment of instalments for the to-be-built flats is a question that has difficult answer. Hence for successful resolution of the Corporate Debtor, piercing of the corporate veil" of the two companies - Corporate Debtor (Developer) and Landowning subsidiary company (Respondent No. 2) becomes absolutely necessary and imperative. 28. The Insolvency and Bankruptcy Code, 2016 provides for the resolution of insolvent companies for the revival of those companies and for the benefit of financial and operational creditors. The preamble of the IBC states that the reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximization of value of assets of such persons is the prime objective of this legislation. Taking a cue from such an objective and the detailed framework ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ate and suitable to give a ruling at this occasion that there is no single yardstick or measurement on the basis of which a motion of consolidation can or cannot be approved. With humility, this Bench herein below sets-out a list of examples, based upon reading the history of "group insolvency", so that the presence of them can lead to a decisive conclusion of triggering of "consolidation" of Insolvency process. Undisputedly, and also laid down by the courts, before ordering consolidation, a preliminary searching inquiry be ensured that whether consolidation yields benefits to stakeholders by offsetting the harm if not consolidated. Areas of inquisition and our finding on the facts of this case are: - i) Common Control: These companies are promoted by Dhoot Family. ii) Common directors: The family members of V.N. Dhoot are directors in all the Videocon group companies. iii) Common assets: There are many instances of interdependency between the group companies and the assets are common to such an extent that, for instance, one company has leased its land to another group company to carry on manufacturing. iv) Common liabilities: The clauses of the VTL and RTL Agreements have....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, and other human resources are mobilised to manage the affairs collectively. Further, common arrangement of capital/funds is an accepted position in Videocon group. viii) Co-existence for survival: An interlinked chain of business operations is also evident in this group case. Electronic gadgets/home appliances are manufactured by a unit. However, distribution and market chain is controlled by another entity. Interdependence upon each other is a unique feature visible in Videocon group. ix) Intricate link of subsidiaries: Consolidated accounts, pooling of resources, commingling of assets and business functions are the examples of intricate link among subsidiaries. x) Inter-twined accounts: The consolidated accounts of 15 months is one of the evidence to demonstrate that on demand by the lenders, all the subsidiaries have prepared a common position of their assets and liabilities, thereafter, prepared consolidated accounts, stated to be duly approved by an auditor. xi) Inter-looping of debts: On perusal of the agreements, it is evidenced that the clauses have made a provision of securing the debts owed by subsidiaries of Videocon group. For example, Clause 2.4 of the RTL A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion of CIRP against them. Hence, the Appellant remitted to the Adjudicating Authority for admission of the case after notice to the parties. The important point to note in this matter is that an application for initiation of CIRP jointly against, 'developer' and the 'landowners' was filed, which was rejected by the Adjudicating Authority. In the instant appeal the initiation of CIRP has been ordered only against the Corporate Debtor (developer) but at this stage there is neither any application for initiation of CIRP against the landowner/ landholder nor there is any order regarding initiation of the CIRP against the landowning company M/s Solitaire Infomedia Pvt. Ltd. 31. In the situation as obtains in the matter related to the present appeal, a joint CIRP would be possible only if there is an application for admission of CIRP under the IBC against the landowning entity and there is a strong case for undertaking joint CIRP. We have found, upon piercing of corporate veil, that both the Corporate Debtor and Respondent No.2 have common Director Tarun Sheinh and their assets are intricately interwoven in their business operations. In addition, we have also seen that the corporate d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....total asset base for the insolvency resolution of the Corporate Debtor M/s. Premia Projects Limited. The inter-woven nature of the assets of the two companies is amply clear from the provisions of the 'Collaboration Agreement' and the 'MOU' respectively. The Corporate Debtor has provided valuable consideration to Respondent No.2 and also taken possession of the land in question for developing the housing project through the Corporate Debtor. Hence, the asset of land is effectively transferred to the Corporate Debtor, on whose strength it has entered into Memoranda of Understanding with various homebuyers. On the basis of these MOUs the CD has collected monies from the home buyers. Moreover, in the costing of flats offered to homebuyers, the cost of land that proportionately is attached with each flat is a part of the total cost of each flat. In such a situation, it would not be fair and just to the creditors of the Corporate Debtor, which include the homebuyers, if the land in question is considered as part of the overall CIRP process and included in the information memorandum. In such a situation, a meaningful resolution plan could be proposed by an applicant. 37. In the instant....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ck to back agreements and MOU to get possession of the land and collect money from the home buyers through one company, siphoning them of for his personal benefit and leaving the corporate debtor (of that Appeal) i.e. Premia bereft of any assets of meaningful value for effective and successful insolvency resolution of the Premia. This tribunal in aforesaid judgement was very much considered with the fate of home buyers who have sunk their hard earned income, often their lifetime savings, in the booking and payment of instalments for the 'to be built Flats' and while considering also the underlying object of the IBC to do effective resolution of an in solvent company and also to protect the interest of creditors in a timely manner and also considering that that both above companies were being controlled by the same set of directors and their businesses are interrelated, intertwined and interwoven held that such companies should be looked at jointly for the purpose of insolvency resolution as the financial revival of one company will be closely linked to the financial health of the other company. It was further observed by this tribunal that the assets of both the companies h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or the Radha Buildtech SRA that the judgement of this appellate tribunal has not been appreciated in right perspective by the Tribunal. We are of the considered view that as there was a clear cut direction to consider the CIRP of Solitaire at first and thereafter the emphasis in that judgment was for Joint and consolidated CIRP which could only be done once the Solitaire is inducted into the CIRP, therefore, no illegality in this regard appears to have been done by the Ld. Adjudicating Authority in accepting the application moved by the homebuyers who are above the threshold limit and there was no confusion with regard to the legally payable debt and commission of default by the the Solitaire as well as by the Premia as they have already been held by this Tribunal as one and same for the purpose of Resolution and at the cost of repetition we reiterate that both entities and RP of Premia were party to the aforesaid appeal and it is an admitted fact that none of the party has challenged the order at any higher forum, therefore the findings recorded therein has become absolute and binding on all stake holders. 64. So far as the submission of Ld. Counsel for the appellant in CA (AT) (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is that the same set of creditors, who were in the COC of Premia and have approved the Resolution Plan submitted by it have filed this application under section 7 of the IBC and therefore this was not permissible. In our considered opinion the submission of Ld. counsel for the Appellant is not tenable as it is evident that the Application under Section 7 of the IBC was filed by the applicants therein on 20th July 2023 and the Resolution Plan of Radha Buildtech/SRA was admittedly approved by the COC of Premia on 27th December 2023. Thus the reverse of what has been argued by Ld. Counsel for the Appellant and Resolution Professional of Premia appears to be true i.e. that Resolution Plan of SRA has been approved by the COC during the pendency of the company petition number 644 of 2023. 66. One of the submission which has been advanced with considerable force by Ld. Counsel for SRA/Radha Buildtech is that when the Plan submitted by it has included a specific provision of merger of both the entities and a specific provision of merger of both the entities was placed in the Plan, there was absolutely no necessity of initiation of CIRP against Solitaire. At first glance this submission ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the "debt", which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under sub- section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be. 29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....solvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional in Part III, particulars of the financial debt in Part IV and documents, records and evidence of default in Part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and every claim of the individual homebuyers. The adjudicating authority also held that since the process of settlement was progressing "in all seriousness", instead of examining all the individual claims, it would dispose of the petition by directing the respondent to settle all the remaining claims "seriously" within a definite time-frame. The petition was accordingly disposed of by directing the respondent to settle the remaining claims no later than within three months, and that if any of the remaining original petitioners were aggrieved by the settlement process, they would be at liberty to approach the adjudicating authority again in accordance with law. The adjudicating authority's decision was also upheld by the appellate authority, who supported its conclusions. 34. The adjudicating authority has clearly acted outside the terms of its jurisdiction under Section 7(5) IBC. The adjudicating authority is empowered only to verify whether a default has occurred or if a default has not occurred. Based upon its decision, the adjudicating authority must then either admit or reject an application, respectively. These are the only two courses of action which are open to the ad....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... complex subject. Real estate projects many times involve many other inter connected companies, and involvement of these many companies having diversified interests have made this subject more complex, however the Courts have made attempts to make it simple keeping in view the Home Buyers interest. Consolidation of the CIRP of those Companies who are managed by same set of management and having an interwoven asset with each other in order to maximise the value of the resolution of CD for the benefit of the Home Buyers have been undertaken by the Courts and Tribunals in order to amalgamate the assets and liabilities of interconnected companies paving the way for a common CIRP. The object of this is to maximize asset value of the project/CD, reduction in costs and enhance faith of the prospective Resolution Applicants, which often results submission of Plans of enhanced values, to the benefit of Home Buyers. This envisages amalgamation of assets and liabilities of the connected companies in a pool, allowing initiation of a consolidated Joint Corporate Insolvency Resolution Process (CIRP). Various experiments have been done by the Courts and Tribunals in this regard. In State Bank of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Debtors' namely- 'Sachet Infrastructure Pvt. Ltd.'; 'Magad Realtors Pvt. Ltd.'; 'Mehak Realtech Pvt. Ltd.'; 'Sameeksha Estate Pvt. Ltd.' and 'Jamvant Estates Pvt. Ltd.', the township project of Town and Country Planning, Haryana, will not be complete, we set aside the impugned order dated 7th March, 2019 " 71. In Sandeep Garg & Anr. vs. M/s DMI Finance Pvt. Ltd. & Anr., Company Appeal (AT) (Insolvency) No. 321 of 2021 decided on 24.03.2022, This Tribunal opined as under: - "12. The Ld. Counsel of Appellant has claimed that the IBC Petition under Section 7 filed by the Respondent No. 1 before the Adjudicating Authority was complete in all respects and no defects or deficiencies were raised by the Corporate Debtor at that time and hence the debt and default are not disputed. The main dispute raised by the Appellant is that there are CIRPs going on against two other co-borrowers viz Ninex Developers and Red Topaz Real Estate companies on the basis of the same loan agreement, and hence the section 7 application against Abloom Infotech is not maintainable. 30. The Ld. Counsel for Appellants has opposed the simultaneously on-going CIRPs against co-borrowers. The judgments of Hon'b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion (b) to Section 18(1) provides that the term "assets" used in Section 18 shall not include the assets of any Indian subsidiary of the corporate debtor. Perhaps the reason for including these two provisions is that it is well-settled that a shareholder has no interest in the company's assets. 33. A holding company and its subsidiary are always distinct legal entities. The holding company would own shares of the subsidiary company. That does not make the holding company the owner of the subsidiary's assets. In Vodafone International Holdings BV, this Court took the view that if a subsidiary company is wound up, its assets do not belong to the holding company but to the liquidator. As mentioned in the decision, the reason is that a company is a separate legal persona and the fact that the parent company owns all its share has nothing to do with its separate legal existence. Therefore, the assets of the subsidiary company of the corporate debtor cannot be part of the resolution plan of the corporate debtor. 43. The last argument sought to be canvassed was that by the admission of an application under Section 7 IBC against the 2nd respondent corporate debtor, the valuabl....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Creditors' such as Financial Institutions/ Banks/ NBFCs. Normally, the Banks/ Financial Institutions/ NBFCs also would not like to take the flats/apartments in lieu of the money disbursed by them. On the other hand, the 'unsecured creditors' have a right over the assets of the Corporate Debtor i.e. flats/ apartment, assets of the Company. 11. In most cases, the Committee of Creditors take 'haircut'. The Resolution Applicants satisfy them most of the time with lesser amount than the amount as determined. In the case of allottees (Financial Creditors), there cannot be a haircut of assets/ flats/ apartment. " 75. In State Bank of India vs Athena Energy Respondent Ventures Private Limited, Company Appeal (AT) (Ins) No.633 of 2020, decided on 24th November, 2020, where one of the issue was as to whether the 'Corporate Insolvency Resolution Process' can be initiated against two 'Corporate Guarantors' simultaneously for the same set of debt and default?" This Appellate tribunal held as under: - "13. Apart from this, the observations in the Judgement in the matter of Piramal do not appear to have noticed Sub- Sections 2 and 3 of Section 60 of IBC. It would be appropriate to reproduce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the Courts to safeguard their interest. In view of above cases there also appears no bar for the financial creditors to initiate CIRP against two Corporate Debtors who after lifting the corporate veil are found to be so interconnected that one of them may not be separately resolved. Moreover, in instant case the Home Buyers appear to have acted in pursuance of the order of this Tribunal Dated 18.11.2021, in moving an Application under section 7 of the IBC, which has become final so far as parties are concerned. 77. So far as the provision contained in the Resolution Plan for merger of the two entities are concerned, this aspect is also full of legal battles as the law with regard to inclusion of properties of subsidiary company in the resolution process of holding company in the resolution plan of the CD is still at the infant stage. In Greater Noida Industrial Development Authority Vs. Roma Unicon Designex Consortium and Ors., MANU/NL/0069/2023 wherein the land of the three Projects was leased by Greater Noida Industrial Development Authority (GNIDA) to three entities and CD M/s. Earth Infrastructure Limited was the developer. The Corporate Debtor - Earth Infrastructures Ltd.,....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... We make it clear that the Resolution Professional/Liquidator has no jurisdiction to take over any asset of the subsidiary company of the Corporate Debtor including 'Urban Rupi Infrastructure Private Limited' and 'Neelkanth Palm Realty Private Limited',. " Thus in our considered opinion the course suggested by this Tribunal vide order dated 21.11.2021, i.e. for consolidated CIRP is the best recourse available in the facts and circumstances of this case. It is to be recalled that it was the Resolution Professional of Premia who had at first moved an Application IA No. 4132 of 2020 before the Ld. Adjudicating Authority during the CIRP process of Premia requesting for taking charge of the assets of the Solitaire. This application moved by the RP of Premia was rejected by the Ld. Adjudicating Authority on 29th October 2020 and feeling aggrieved by this order, it was the RP of Premia, who has filed an appeal before this appellate tribunal bearing Appeal No. 1069 of 2020 and it is in this appeal this Appellate Tribunal has opined that land held by Solitaire is an integral part of the housing development project and should be considered as part of the total assets base f....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... cannot say with certainty that the application moved by appellant Harish Kumar under Section 7 of the IBC was moved in compliance of the directions issued by this Appellate Tribunal on 18th November 2021, secondly in the order dated 22nd November 2022 whereby that Petition was dismissed by the Ld. Adjudicating Authority there is no mention either of the order of this Tribunal dated 18th November 2021 or of the fact that the petition has been moved there under. On 1st July 2022 Mr. Parveen Kumar Aggarwal is stated to have been appointed as the Authorised Representative of the Financial Creditors in Class i.e. homebuyers. It is recalled that the application under Section 7 of the IBC was filed by Appellant Harish Kumar on 8th December 2021. It is strange to see that the RP of the Premia has not even advised the Harish Kumar to obtain the support of at least so much of the homebuyers so that the threshold limit may be achieved, especially when at that point of time no Authorised Representative of the Financial Creditors in Class was appointed and all the homebuyers were the members of the COC and would have been in the contact of the RP of Premia and it shows that the RP of Premia wa....