TaxTMI 
TaxTMI 
2025 (10) TMI 458
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....rishna Mohan Menon, Mr. Chetna Priyadarshi, Ms. Muskan Surana and Ms. Priya, Advocates. JUDGMENT Ashok Bhushan, J. These two Appeals have been filed against the same judgment and order dated 20.08.2025 passed by the Adjudicating Authority (National Company Law Tribunal) New Delhi Bench, Court-II in various applications in Company Petition No. (IB)- 297/(PB)/2018. By the impugned order, the Adjudicating Authority disposed of various applications remitting the Resolution Plan back to the Committee of Creditors (CoC) to take further/fresh steps in exercise of its commercial wisdom in accordance with law. IA No.2378 of 2025 and IA No.2768 of 2025 were allowed. Aggrieved by the aforesaid order, these two Appeals have been filed. Company Appeal (AT) (Insolvency) No.1415 of 2025 has been filed by one Beeram Singh claiming to the Financial Creditor of the Corporate Debtor- M/s. International Recreation and Amusement Ltd. Company Appeal (AT) (Insolvency) No.1471 of 2025 has been filed by Appu Ghar Gurgaon Shop Buyers Association which claim to be association of Financial Creditors in class, allottees in Appu Ghar Project. 2. Brief facts of the case necessary to be noticed for de....
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....e application, homebuyers namely- Gurupreet Singh Chadha & Ors. filed Company Appeal (AT) (Insolvency) No.480 of 2021-"Gurupreet Singh Chadha & Ors. Vs. International Recreation and Amusement Ltd. Through Resolution Professional & Ors.". On 23.10.2021, an e-mail was sent on behalf of Hari Global Advisory Services (SRA) to the Resolution Professional informing that the SRA is proposing to delete Parklane Investment and Securities Pvt. Ltd. (foreign partner) from JV. E-mail further stated that the SRA proposes to execute the project in association with Paras Buildtech. This Tribunal in Company Appeal (AT) (Insolvency) No.480 of 2021 directed the Adjudicating Authority not to take any decision on application for approval of the Resolution Plan. Company Appeal (AT) (Insolvency) No.480 of 2021 ultimately came to be dismissed on 04.10.2023. IA No.5041 of 2024 was filed by Beeram Singh, Appellant before the Adjudicating Authority praying for various reliefs including dismissal of IA No.1225 of 2019 filed by the Resolution Professional for approval of the Resolution Plan. Adjudicating Authority vide order dated 19.02.2024 confirmed the appointment of Mr. Keshri Kumar, Insolvency Profession....
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....S Global- Apex JV as null and void as no Successful Resolution Applicant exists as on date to implement the Plan and/or (III) Direct the resolution professional to issue fresh Form- G and conduct the whole process efficiently and speedier manner and/or (IV) Pass any further order/ direction that this Hon'ble Appellate Tribunal may deem fit in the interest of justice and equity." 2.3. Company Appeal (AT) (Insolvency) No.1471 of 2025 has been filed by Appu Ghar Gurgaon Shop Buyers Association challenging the impugned order where following reliefs have been sought:- "i. Allow the present appeal; and/or ii. Set aside the impugned order dated 20.08.2025 passed by the Hon'ble NCLT, Bench-II, New Delhi, in CP No. IB 297(PB)/2018; and/or iii. Reject the purported Resolution Plan submitted by M/s Hari Global Advisory Services, Park Lane JV, together with any substituted or reconstituted entities including but not limited to Rapid Buildtech Pvt. Ltd., as being ex facie illegal, non-compliant and vitiated by fraud; and direct the Committee of Creditors to initiate procedures for inviting fresh resolution proposals vide Form G and proceed in ....
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....ls regarding the composition of the SRA. Resolution Professional after having received e-mail from SRA that M/s. Parklane Investment and Securities Pvt. Ltd. is no longer part of the SRA ought to have brought to the notice of the Adjudicating Authority about the ineligibility of the Resolution Applicant to prosecute the Resolution Plan. Appellant has prayed for removal of the Resolution Professional against whom misconduct has been proved. The mere fact that he has obtained an interim order from Allahabad High Court cannot be ground to permit the Resolution Professional to continue in the CIRP of the present Corporate Debtor. The present was a case where plan approval application required outright rejection and there was no occasion to remit the plan to the CoC for fresh consideration. It is submitted that the present is a case where Adjudicating Authority ought to have directed after rejecting the Resolution Plan to issue fresh Form G. Lastly, it is submitted that even if the CoC is permitted to consider the plan, the ineligibility of Resolution Applicant has to be first looked into and further an observer be appointed by this Court to oversee the entire process. It is submitted t....
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....erim order which was obtained by the Resolution Professional from the Allahabad High Court is not on the merit of the allegation but on the ground that delay was not condoned in filing the complaint. It is submitted that several e-mails have been sent to the Resolution Professional to convene a meeting for replacement but no meeting of the CoC has been convened so far with the agenda of replacement of the Resolution Professional. 6. Dr. Abhishek Manu Singhvi, Learned Senior Counsel for the SRA refuting the submissions of the Counsel for the Appellants submits that Appeals filed by Appellants claiming to the Financial Creditors in Class is not maintainable. The Financial Creditors in a class has to go by majority decision of the Financial Creditors. In the present case, homebuyers who have voted with the majority approving the plan cannot challenge the approval of the Resolution Plan individually. Counsel for the SRA relied on the judgment of the Hon'ble Supreme Court in "Jaypee Kensington Boulevard Apartments Welfare Association And Others vs. NBCC (India) Limited and Ors.- (2022) 1 SCC 401" and submits that Appeals are liable to be dismissed on the ground of locus. It is submit....
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.... CIRP is continuing for the last six years and the present Appeals are another attempt to derail the CIRP process. 8. Shri Arun Kathpalia, Learned Senior Counsel for the Resolution Professional submits that the CoC had never taken any decision to replace the Resolution Professional. The Resolution Professional never received any requisition by requisite numbers of homebuyers for convening any meeting of the CoC for replacement of the Resolution Professional. The Resolution Professional is duty bound to perform his duties. Resolution Professional has brought into notice the e-mail received by the SRA informing change in the constitution of the JV. 9. We have considered the submissions of the Counsel for the parties and perused the record. 10. Appellant in Company Appeal (AT) (Insolvency) No.1415 of 2025 had filed two applications before the Adjudicating Authority in IA No.5041 of 2024 where Applicant has prayed for following reliefs:- "I. Appoint an independent and suitably qualified Insolvency Professional to oversee and facilitate the successful resolution of the Corporate Debtor, in accordance with the provisions of the Insolvency and Bankruptcy Code. I....
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....xercise of its commercial wisdom the CoC should call for the information/record/material referred to in IA-2378/2025 and 2763/2025 from the SRA. 24. In the wake of the aforementioned, taking a holistic view, we dispose of IA-897/2019, 3416/2024, 5014/2024, 05/2025 and 728/2025 remitting the resolution plan back to CoC to take further/fresh steps in exercise of its commercial wisdom in accordance with law. The CoC may also consider replacement of RP in accordance with Section 27 of IBC, 2016. The IA-2378/2025 and 2768/2025 stands allowed." 13. The submission which has been pressed by the Counsel for the Appellant is that the Adjudicating Authority ought to have rejected the application filed by the Resolution Professional for approval of the Resolution Plan and there was no occasion to remit the Resolution Plan for fresh consideration specially when the composition of the SRA has been changed and the SRA who had submitted the Resolution Plan whose name was included in the list of eligible Resolution Applicant is no more in existence. It is submitted that the JV Partner which had submitted the Resolution Plan is no more in existence since Parklane Investment and Securitie....
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....e number of homebuyers herein) may never fructify and the only result would be liquidation, which is not the prime target of the Code. In the larger benefit and for common good, the democratic principles of the determinative role of the opinion of majority have been duly incorporated in the scheme of the Code, particularly in the provisions relating to voting on the resolution plan and binding nature of the vote of authorised representative on the entire class of the financial creditor(s) he represents. 273.9. The homebuyers as a class having assented to the resolution plan of NBCC, any individual homebuyer or any association of homebuyers cannot maintain a challenge to the resolution plan and cannot be treated as a dissenting financial creditor or an aggrieved person; the question of violation of the provisions of the RERA does not arise; the resolution plan in question is not violative of the mandatory requirements of the CIRP Regulations; and when the resolution plan comprehensively deals with all the assets and liabilities of the corporate debtor, no housing project of the corporate debtor could be segregated merely for the reason that same has been completed or is nea....
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....r dated 20.08.2025 was a consent order and the order being a consent order, no Appeal is maintainable. Counsel for the Appellants, however, refuted the submission and submitted that there was no consent for passing the impugned order. Appellant- Beeram Singh who has filed IA No.5041 of 2024 has prayed that the application for approval of the Resolution Plan be rejected and never has consented for remitting the plan back for reconsideration. The order impugned in paragraph 21 has noticed the submissions of the parties to the following effect:- "In a way, both the applicants and SRA are ad idem that in the changed circumstances, the resolution plan cannot be approved." 17. It is, thus, clear that although SRA and Applicants submitted that the Resolution Plan cannot be approved when the order does not indicate that there was any consent recorded on behalf of the Applicants that they are agreeable for passing an order for reconsideration of the Resolution Plan by the CoC. Moreso, Applicants have raised various objections to the plan approved by the CoC which has been noted by the Adjudicating Authority. The order does not indicate that all objections raised by the Applicant....
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....aragraph 22: "Nevertheless, the reconstitution of SRA after approval of the resolution plan is not permissible. Any change or requirement of change in resolution plan as also reconstitution of SRA need to be examined by CoC and it is for CoC to take a view regarding reconsideration/ approval of resolution plan with alteration/change therein." 20. Although submission has been advanced by both the parties regarding non- permissibility/ permissibility of the change in the constitution of the SRA but the Adjudicating Authority having not considered the said issue, we are of the view that the issue need not be considered in these Appeals. The Adjudicating Authority has clearly held in paragraph 22, as noted above, that any change or requirement of change in resolution plan as also reconstitution of SRA need to be examined by CoC. 21. Counsel for the Appellant in Company Appeal (AT) (Insolvency) No.1471 of 2025 has also placed reliance on the judgment of this Tribunal in "Jubilee Metal Pvt. Ltd. Vs. Mr. Surendra Raj Garg, Resolution Professional of Metenere Ltd. & Anr.- Company Appeal (AT) (Insolvency) No.1550 of 2023" decided on 22.12.2023. It is submitted that in the abo....
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.... its plan is in question which need to be first considered by the CoC before any consideration or voting on the Resolution Plan. 24. Another issue which need to be noticed is regarding replacement of the Resolution Professional. As noted above, Resolution Professional has been suspended by IBBI vide order dated 20.09.2024 for three years on the ground of misconduct and illegality committed by the Resolution Professional in the present CIRP itself. Prayer was made before the Adjudicating Authority for replacement of the Resolution Professional on which Adjudicating Authority in paragraph 22 has made following observations: - "As far as the plea regarding replacement of resolution plan raised in IA-5041/2024 is concerned, we agree with the plea raised by the RP that it is for CoC to take a decision regarding replacement of Resolution Professional subject to written consent from the proposed resolution professional with 66% voting share. The single applicant in IA has no locus to seek the replacement of resolution professional. Nevertheless, in the backdrop of the position espoused by the applicant in the IA-5041/2024, the CoC may consider passing resolution for replacemen....
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....rd"). I am very much concerned about the right of myself and other homebuyers/allottees under the projects of the Corporate Debtor, and you are hereby requested to convene an urgent meeting of class of creditors and place the above (1) to (2) agenda/resolutions for approval by the Class of Creditors to enable you (Authorized Representative of Class of Creditors) to requisition a notice to the Resolution Professional of the Corporate Debtor to call an urgent meeting of COC members to discuss and decide above agenda/resolutions (2) in accordance with the provisions of the Code and Regulations made thereunder. It is further clarified that the Results of voting on the above agenda/resolutions in the meeting of the Class of Creditors shall be considered as voting instructions by the Financial Creditors in class in terms of Section 25A of the Code, and the Authorised Representative of our class of creditors (you) shall cast a vote in the COC meeting accordingly. It is requested that Voting be held by the authorised Agency by direct communication to the Financial Creditors, without intervention of AR/RP. Kindly refer In the matter of I.A. No. 897 of 2019 - wherein severa....
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....ssion of the Appellant that he shall make appropriate request to the Resolution Professional with requisite majority. It is submitted that the said order was passed on 12.07.2023 arising out of the present CIRP of the Corporate Debtor where Appeal was filed rejecting such request. There is no dispute that the meeting of the CoC can be convened on requisition received from 33% of allottees and it is for the Authorised Representative of the homebuyers to ascertain as to whether 33% of the allottees are requesting for convening a meeting for replacement and Authorised Representative being satisfied with requisite majority of 33% of allottees are seeking replacement may ask the Resolution Professional to convene a meeting. 27. In view of the foregoing discussions and our conclusions, we are of the view that both the Appeals need to be disposed of in following manner:- (I) The order impugned dated 20.08.2025 is upheld subject to following directions:- (i) Authorised Representative of the Financial Creditors in a Class after ascertaining as to whether 33% of allottees have requested for convening a meeting of CoC for considering the replacement of the Resolution Prof....