9911796707
TMI Blog2019 (8) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... d under the Insolvency and Bankruptcy Code as to how the voting share of thousands of Allottees will be counted, all of whom come within the meaning of Financial Creditors and thereby are members of the Committee of Creditors . It was in this background the Allottees Association preferred the application before the Adjudicating Authority (National Company Law Tribunal), Allahabad Bench on 17th September, 2018 to decide such issue. The two Hon ble Members of NCLT differed on the principle on 13th December, 2018 as noticed above and referred the matter to the Principal Bench for placing the matter before Third Hon ble Member who has delivered its decision by the order dated 24th May, 2019. In the meantime, 270 days lapsed, if counted from the date the proceeding was remitted by the Hon ble Supreme Court, i.e. 6th May, 2019. The period from 17th September, 2018 i.e the date of application filed by the Association of the allottees for clarification for the order and till the final decision i.e. 4th June, 2019 i.e. the date the matter was finally decided by the Third Hon ble Member (Total 260 days), can be excluded for the purpose of counting the 270 days. However, as the matter is pend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the Hon'ble Supreme Court, in 'Chita Sharma Vs. Union of India' wherein the Hon'ble Supreme Court by its judgement reported in '2018 SCC OnLine SC 874' (decided on 9th August, 2018) passed the following order and directions " "55. We, accordingly, issue the following directions: (i) In exercise of the power vested in this Court under Article 142 of the Constitution, we direct that the initial period of 180 days for the conclusion of the CIRP in respect of JIL shall commence from the date of this order. If it becomes necessary to apply for a further extension of 90 days, we permit the NCLT to pass appropriate orders in accordance with the provisions of the IBC; (ii) We direct that a CoC shall be constituted afresh in accordance with the provisions of the Insolvency and Bankruptcy (Amendment) Ordinance, 2018, more particularly the amended definition of the expression "financial creditors"; (iii) We permit the IRP to invite fresh expressions of interest for the submission of resolution plans by applicants, in addition to the three short-listed bidders whose bids or, as the case may be, revised bids may also be considered; (iv) JIL/JAL and their promoters shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uidation i.e under Section 12A, 30(4) and 33(2) respectively, so that CIRP would continue for the time being in the meanwhile the Central Government may bring amendment to the relevant provisions of the I&B Code and CIRP regulations prescribing the procedure to be followed in determining the voting share for passing various resolutions where CoC comprise of Real Estate Class of Creditors 50% or more and when there is dead lock in passing the resolutions, or else the CIRP which remained static continue to be the same not only in this case, but in the cases of similar nature where Real Estate/Home Buyers as a class that comprise majority percent voting share abstain from voting." Decision of Hon'ble Member (Technical) iii) In the case on hand, even if all Banks and 17% of Home Buyers vote in favour of the Resolution Plan, it will still not sail through as it would not receive mandatory voting percentage of 66%. Therefore, required important/crucial decisions will still fail u/s 12A, 30(4) and 33(2), bringing CIRP to a halt at these crucial stages. Therefore, the lasting solution to the problem of dead lock can only be found by treating Home Buyers as a class and their voting patt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is still sub-judice before it and has not yet been decided. Therefore, we feel appropriate that it is need of the hour that COC and RP must be allowed to proceed further with the CIRP process in accordance with law for considering the Resolution Plan under consideration in respect of Corporate Debtor Company, which, however, shall be subject to outcome of pending IA. List the matter on 21st May, 2019." 9. The aforesaid order dated 6th May, 2019 has been challenged before this Appellate Tribunal by the 'IDBI Bank Limited' in 'Company Appeal (AT)(Insolvency) No. 536 of 2019'. 10. When the matter was taken up, learned counsel appearing on behalf of all the parties requested to exclude the period during which the matter remained pending before the Adjudicating Authority to decide the manner in which the voting share of the Allottees will be counted so as to enable a successful 'Corporate Insolvency Resolution Process' in the interest of Allottees. 11. Having noticed that the 'Committee of Creditors' were considering the 'Resolution Plan' of 'NBCC' and voting was in process, by order dated 17th May, 2019 this Appellate Tribunal while observed that the part of voting as alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hare of the Allottees will be counted. 16. One individual buyer - 'Mr. Hemant Kr. Singh, who claimed to be an authorised representative appeared in person without any petition and raised various allegations relating to default by the 'Interim Resolution Professional', 'Committee of Creditors' etc. but he has not given any substantive suggestion. 17. Mr. Anupam Lal Das, learned Senior Advocate appeared and submitted that he intends to appear on behalf of 'Jaiprakash Associates Ltd.' who is not a party to any of the appeal nor filed an application for intervention nor shown as to how 'Jaiprakash Associates Limited' can raise any issue. A written submissions has been filed by the counsel objecting to the prayer for exclusion of period, which shows that 'Jaiprakash Associates Limited' wants 'Liquidation' of 'Corporate Debtor' to derive advantage during the 'liquidation process'. 18. Learned counsel for the Appellants submitted that the 'Jaiprakash Associates Limited' is a related party and is ineligible under Section 29A of the I&B Code. We find that the Hon'ble Supreme Court in 'Chitra Sharma' (Supra) allowed RBI to ask for insolvency resolution proceeding against 'Jaiprakash Assoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal is reversed by the Hon'ble Supreme Court and corporate insolvency resolution process is restored. (vi) Any other circumstances which justifies exclusion of certain period. However, after exclusion of the period, if further period is allowed the total number of days cannot exceed 270 days which is the maximum time limit prescribed under the Code." 20. Admittedly, no regulation was framed under the 'Insolvency and Bankruptcy Code' as to how the voting share of thousands of Allottees will be counted, all of whom come within the meaning of 'Financial Creditors' and thereby are members of the 'Committee of Creditors'. It was in this background the Allottees Association preferred the application before the Adjudicating Authority (National Company Law Tribunal), Allahabad Bench on 17th September, 2018 to decide such issue. The two Hon'ble Members of NCLT differed on the principle on 13th December, 2018 as noticed above and referred the matter to the Principal Bench for placing the matter before Third Hon'ble Member who has delivered its decision by the order dated 24th May, 2019. In the meantime, 270 days lapsed, if counted from the date the proceeding was remitted by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
