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TMI Blog2019 (12) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... s (CIR Process) was initiated against the Corporate Debtor on 13.07.2018 whereby Mr. T. V. Subramanian was appointed initially as the Interim Resolution Professional who was subsequently replaced by this Authority on 19.07.2018 with one Mr. Premachandran. 3. Consequent to the public announcement under Regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons), Regulations, 2016, claims from the creditors seem to have been received by the Resolution Professional. After verification of the claims received, the Interim Resolution Professional constituted Committee of Creditors (COCs) on 18.08.2018. 4. It is evident from Form H that the 1st meeting of the COC was held on 23.08.2018 and Mr. Sundaresan Nagarajan had been appointed as Resolution Professional on 20.09.2018. It is also evident on perusal of the Form H that the "Expression of Interests" (in short, "Eol") were issued thrice with the last one having been issued on 17.04.2019. At the instance of the COC, on 28.04.2019 the final list of eligible prospective Resolution Applicants were ascertained and the prospective Resolution Applicants were invited to submit the Resolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 read with the attendant Regulations discloses that the Resolution Plan complies with all the provisions of the I&B Code, 2016, the CIRP Regulations and does not contravene any of the provisions of the law for the time being in force. 10. It is also brought forth that an Affidavit as required to be submitted by the Resolution Applicant viz., RCC E-Construct Private Limited has also been duly submitted in relation to the eligibility taking into consideration Section 29A of the I&B Code, 2016. 11. It is affirmed in terms of the table as given above that the Resolution Plan has been approved by the COC with 81.39% of voting share of Financial Creditors including Home Buyers have duly approved the Resolution Plan as submitted by the Resolution Applicant and that the voting was exercised in terms of electronic voting system which were kept open for 24 hours as per the Regulation 26 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 12. From the averments made in the Application as well as in Form-H as filed by the Resolution Professional in relation to the procedural aspects, the same seems to have been duly complied with for which the Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanraj was appointed by this Authority vide its Order dated 11.09.2018 and that the said Advocate Commissioner took over the available records and also filed the report before this Tribunal. (iv) The Information Memorandum as circulated to the prospective Resolution Applicants also brings forth the fact that the Company owes by way of tax duties to the Income Tax Department as well as GST, VAT, Service Tax and other statutory dues details of which have also been given in the Information Memorandum in relation to which dues, proceedings seem to be pending by way of an Appeal before Hon'ble High Court of Madras. The composition of COC as on 07.04.2019 has also been disclosed at page 68 of the Resolution Plan from which it is seen that the COC had from time to time, by virtue of orders of this Tribunal undergone a change as compared to the one which was first constituted. 14. Based on the Information Memorandum which has been provided, the Resolution Applicant seems to have filed the Resolution Plan. The report of the Resolution Professional mandates eligibility criteria filed in relation to the proposed Resolution Applicants. The COC has fixed the following eligibility crite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. were taken up and was placed for consideration by the COC for determining /ascertaining the Resolution Plan filed on the basis by consideration of Evaluation Matrix in relation to the Resolution Plans as submitted by the two Resolution Applicants to the following effect: SL. NO EVALUATION PARAMETERS SCORE RCC ANNAI 1 Submission of Composite 50 50 2 Net Worth 10 50 3 Time Frame For Construction 75 100 4 Time Frame for Payment to Lenders 25 50 5 Additional Amount Demanded from Homebuyers 0 0 SR. NO EVALUATION PARAMETERS SCORE RCC ANNAI 1 Sunshine 0 30 2 Dreamz 20 25 3 Innova 0 0 4 Matrix 0 0 5 Icon 0 10 6 Upfront Payment to Lenders 0 0 7 Aggregate NPV 150 100 8 Funding Arrangement 100 0 9 Commitment to Pay Operational Creditor 0 0 10 Commitment to Settle Other Creditors 0 0 11 Commitment to Settle Employees 50 20 Total 480 435 17. Since the Resolution Plan submitted by the successful Resolution Applicant scored more value, the same was placed before the COC for voting which was ultimately approved by the COC as stated in earlier para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor and filed their claims with the RP and which have been accepted. As per the Resolution Plan, being the Liquidation value is NIL, the Resolution Applicant proposes to pay the Operational Creditors herein 1.5% of the admitted claim amount. Aggrieved by the said proposal, the applicants have filed the present MA. (iii) MA/879/2019 - (S. Rani) The Applicant is an Operational Creditor who had rendered services of publishing advertisement for the Corporate Debtor and filed their claims with the RP and which have been accepted. As per the Resolution Plan, being the Liquidation value is NIL, the Resolution Applicant proposes to pay the Operational Creditors herein 1.5% of the admitted claim amount. Aggrieved by the said proposal, the applicants have filed the present MA. (iv) MA/625/2019 - (Sai Enterprises) The Applicant viz. Sai Enterprises, supplied building materials to the CD. Upon initiation of the CIR Process, the Applicant submitted the claim to the RP, which was admitted to the tune of Rs. 30,86,266/-. As per the Resolution Plan, being the Liquidation value is NIL, the Resolution Applicant proposes to pay the Operational Creditors herein 1.5% of the admitted claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of prospective resolution applicants as illegal, unjust and unconstitutional and to direct the RP to treat the applicant on par with the financial creditor in settlement of the claim. (vii) MA/630/2019 - (B. Akhilandeswari) The Applicant viz. B. Akhilandeswari, is a work contractor and she was engaged by the Corporate Debtor in the project "Dreamz". The RP has admitted the Claim of the Applicant to the tune of Rs. 1,54,12,142/-. As per the Resolution Plan, being the Liquidation value is NIL the Resolution Applicant proposes to pay the Operational Creditors 1.5% of the admitted claim amount. Aggrieved by the said proposal, the applicant has filed the present MA. (viii) MA/798/2019 - (13M concrete) This application has been filed by the Applicant viz. IJ M Concrete Products Private Limited. This Applicant was the one who originally triggered the CIR process against the CD for the debt of Rs. 42 Lakhs along with interest. Subsequent thereon, the applicant has submitted their claim to the tune of Rs. 78 Lakhs to the RP which was admitted. As per the Resolution Plan, since the Liquidation value is NIL, the Resolution Applicant proposes to pay the Operational Creditors her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor viz. "Innova". The Applicant submitted a claim to the Resolution Professional for a sum of Rs. 21,15,915/- and the Resolution Professional admitted the claim only to the extent of Rs. 3,85,608/-. Aggrieved by the same, the present MA has been filed. (xiii) MA/436/2019 - (Mrs. Manjula) The applicant is a home buyer in one of the projects of the Corporate Debtor viz. "Innova". The Applicant submitted a claim to the Resolution Professional for a sum of Rs. 19,03,780/- and the Resolution Professional admitted the claim only to the extent of Rs. 11,26,113/-. Aggrieved by the same, the present MA has been filed. IV. APPLICATIONS FILED BY THE HOME BUYERS (xiv) MA/71QU2012 - (N. Selvakumar & 6 others) It is an application filed by 8 applicants, who are Home Buyers of the Corporate Debtor in respect of the projects viz. "Innova", "Sunshine" and "Icon", wherein their claims were initially accepted by the RP. Thereafter, from the records of Corporate Debtor it was found that the Flats in respect of which the applicants herein have booked had already been allotted to other Home Buyers and thereby the claims of the applicants have been tagged as "Duplicate C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd and the RP in Form H has certified that the RA has submitted an affidavit and the said affidavit is in order. S. 30(2)(a) - Payment of Insolvency and Resolution cost in the manner specified by the Board Form H has stated that 4.2 and 4.10 of the Resolution Plan satisfies this condition, The CIRP Cost is arrived at Rs. 1.5 Crores as stated in Annexure - 2A at page 182. S. 30(2)(b) - Payment of debts of Operational Creditors in such manner as may be specified by the Board, which shall not be less that the amount to be paid to the Operational Creditors in the event of a liquidation of the Corporate Debtor under Sec. 53 RA has stated in Clause 4.5 (i) that the Liquidation Value owed to the OC's is expected to be NIL. The OC's are being paid 1.5% of the admitted amounts of their claims. Reg. 38(1) - Resolution Plan identifies specific source of funds that will be used to pay the (a) Insolvency Resolution Process cost? (b) Liquidation value due to Operational Creditors? (c) Liquidation value due to dissenting financial creditors In Clause 3.6, RA has stated that he has arranged working capital to the extent of Rs. 10 Crores to meet any cash flow mismatch. Subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontravention of the not provisions of any law. S. 30(4) - Committee of Creditors approve the Resolution Plan by not less than 66% of voting share of Financial Creditors, after considering its feasibility, viability and such other requirement as specified by the Board Approved by 81.39% of voting in the 11th COC Meeting held on 28.05.2019. 16.07% - Dissented 2.54% - Abstained 21.2. This Tribunal has made a broad analysis of the Resolution Plan and for the sake of brevity, the important features which find place in the Resolution Plan are captured herewith; I. CLASSIFICATION OF CREDITORS IN THE RESOLUTION PLAN: CLASSIFICATION OF CREDITORS % OF CLAIM ADMITTED Secured Financial Creditors 42% of admitted claim Unsecured Financial Creditors 10% Of admitted claim Financial Creditors (Home Buyers) Being provided Home ** Financial Creditor in a Class of Home Buyers - Arthveda Star Jaipur 42.5% of admitted claim Operational Creditors 1.5% of admitted claim Employees 100% of admitted claim Statutory Dues 1.5% of admitted claim TOTAL AMOUNT ADMITTED (Principal) : 108.51 Crores RESOLUTION PLAN AMOUNT : 30.48 crores (excluding CIRP Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the project-wise details of amount payable are as follows; PROJECT Incremental Demand Per Sq. ft. (excluding Taxes Innova For units sold at Rs. 2400 per sq.ft. above Rs. 710 For units sold at Rs. 2400 per sq.ft. below Rs. 1235 Matrix For units sold at Rs. 2400 per sq.ft. above Rs. 740 For units sold at Rs. 2400 per sq.ft. below Rs. 1235 Sunshine Buyers without possession Rs. 675 Buyers under possession Rs. 375 Dreamz Buyers without possession Rs. 390 Buyers under possession Rs. 230 Icon Rs. 700 b. As per the Resolution Plan, the Home buyers are required to pay the overdue demands outstanding vis-å-vis the payment schedule within 2 months of effective date. c. Buyers under possession are the persons who have forcibly occupied possession of their allocated unit on the basis of oral confirmation given from ex - management. d. If the Home Buyers failed to make the said payments even after the expiry of 3 months, the RA shall cancel the sale of unit and UDS and refund 42.5% of the amount paid against such unit. e. Project wise delivery period: (Pg. 181) Dreamz -12 months from Effective date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 35 35 Refund to Arthveda 127.5 128 Financial Creditors 0 1000 700 200 875 47 2822 Total 3202 III. CONCESSION AND RELIEFS SOUGHT FOR: The detailed list of Concessions and Reliefs as sought by the Resolution Applicant are found in Chapter 7 of the Resolution Plan. However, for the sake of brevity, only certain points are extracted hereunder: (i) Revenue Department and other Authorities to grant relief /waiver from payment of stamp duty inter alia joint development agreement, increase in authorized share capital, etc. (ii) Income Tax Department to grant relief /waiver from liability of income tax including assignment of liabilities from Corporate Debtor to the Resolution Applicant. (iii) All dues, taxes, liabilities in relation to Corporate Debtor shall stand irrevocably waived (iv) CMDA, DTCP, Panchayat, Pollution Control Board, Fire Department to grant relief /waiver of fees, charge, fines payable for approvals, renewals, permissions, condonations, compounding as are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries, SREI Equipment Finance Limited in Company Appeal (AT)(InsoIvency)No. 82 of 2018. 22.3. The Ld. Counsel for the Resolution Professional contended that the liquidation value, taking into consideration the water fall process under section 53 of the IBC, 2016, due to the Operational Creditors is NIL and therefore the allocation of amount to the extent of 1.5% of the claim is therefore fully in accordance with Sec. 30(2) of the Code. The allocation of 1.5% of the admitted sum payable to Operational Creditor has been made taking into account, the claims of the priority stakeholders, particularly Home Buyers, whose protection of interest, has repeatedly been affirmed and reiterated by both the Hon'ble NCLAT and Hon'ble Supreme Court. It has been further contended by the Ld. Counsel for the Resolution Professional that the Operational Creditors cannot challenge the approval of the Resolution Plan before this Authority and also there is no provision in the code by which Operational Creditors can seek parity with the Financial Creditors. 22.4. As to the objections raised by the Operational Creditors in approval of the Resolution Plan, a perusal of Form H filed by the Resolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditors which is to negotiate and accept a resolution plan, which may involve differential payment to different classes of creditors, together with negotiating with a prospective resolution applicant for better or different terms which may also involve differences in distribution of amounts between different classes of creditors. " "57. ......Quite clearly, secured and unsecured financial creditors are differentiated when it comes to amounts to be paid under a resolution plan, together with what dissenting secured or unsecured financial creditors are to be paid. And, most importantly, operational creditors are separately viewed from these secured and unsecured financial creditors in S.No.5 of paragraph 7 of statutory Form H. Thus, it can be seen that the Code and the Regulations, read as a whole, together with the observations of expert bodies and this Court's judgment, all lead to the conclusion that the equality principle cannot be stretched to treating unequals equally, as that will destroy the very objective of the Code - to resolve stressed assets. Equitable treatment is to be accorded to each creditor depending upon the class to which it belongs: secured or unsecure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution applicants and being unsuccessful in filing the Resolution Plan, the Applicant has sought relief to declare the resolution made during the 8th COC, dropping the applicant from the final list of prospective resolution applicants as illegal, unjust and unconstitutional and to direct the RP to treat the applicant on par with the financial creditor in settlement of the claim. 22.8. The Ld. Counsel for the Resolution Professional in reply contended that it is the Committee of Creditors who refused to consider the proposal of dropping the Applicant from the prospective list of Resolution Applicant and such decision was made with the reasons and voted overwhelmingly vide the Minutes of the 8th Meeting held on 28.04.2019 and also the Resolution Professional has filed an Affidavit on 15.07.2019 to this effect. In order to buttress his arguments, the Ld. Counsel for the Resolution Professional relied upon the Judgment of the Principal Bench of Hon'ble NCLT in Punjab National Bank -Vs- Bhushan Power and Steel Ltd. in CA 254 of 2019 dated 05.09.2019, wherein in para 112 it was held that the "COC does not need to record reasons for acceptance or rejection of Resolution Plans". 22. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing documents within five days from the date of issue of the provisional list. In the present case, the intended prospective resolution applicant viz. Sai Trading and Interiors has expressed their interest by way of an email to the Resolution Professional on 17.04.2019 and his name was included in the provisional list of resolution applicant released by the Resolution Professional on 23.04.2019, however his name was left out from the final list of prospective resolution applicant released by the Resolution Professional on 28.04.2019. The reason for the exclusion of M/S. Sai Trading and Interiors from the provisional list of resolution applicant is recorded in the 8th COC meeting held on 28.04.2019 and the relevant minutes is extracted hereunder; 5. To take on record the final list of prospective resolution applicants RP informed the members that there is no change in the provisional list and all the five of the provisionally selected resolution applicants qualify for the final list. Ms. Namrata Kataria objected to the inclusion of M/S. Sai Trading and Interiors on the ground of credibility as well as providing misinformation with regard to turn over vis-å-vis the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Regulations, 2016, the COC is empowered to include or exclude any person from the prospective resolution applicant as discussed supra. 22.11. In this context, it is also relevant to refer to the Judgment of the Hon'ble Supreme Court in ArcelorMittaI India Private Limited -Vs- Satish Kumar Gupta (2019) 2 SCC 1, wherein the Supreme Court in para 75 and 76 has held as follows; "75. What has now to be determined is whether any challenge can be made at various stages of the corporate insolvency resolution process. Suppose a resolution plan is turned down at the threshold by a Resolution Professional under Section 30(2). At this stage is it open to the concerned resolution applicant to challenge the Resolution Professional's rejection? It is settled law that a statute is designed to be workable, and the interpretation thereof should be designed to make it so workable...... 76. Given the timeline referred to above, and given the fact that a resolution applicant has no vested right that his resolution plan be considered, it is clear that no challenge can be preferred to the Adjudicating Authority at this stage. A writ petition under Article 226 filed before a High Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stries that their claim was accepted. Thereafter, the Resolution Applicant has submitted the Resolution Plan and upon perusal of the said plan, the Applicant came to know that the Resolution Plan has proposed 100% haircut to the Applicant. The claim of the Applicant has been admitted to the tune of Rs. 1,33,00,000/-. Hence the Applicant has sought for direction to the Resolution Professional to reconsider and admit the entire claim of the Applicant and to give the Applicant a status of a Financial Creditor and to allow the Resolution Plan after crystallization of all the claims submitted to the Resolution Professional. 23.2. The Ld. Counsel for the Resolution Professional contended that the rationale employed by the Resolution Applicant in sub - categorizing the Financial Creditors is based upon the Security Interest as held between different classes of Financial Creditors. In order to bolster his arguments, the Ld. Counsel relied upon a tabulation on how the Financial Creditors are being sub - classified according to their Security interest and the same is reproduced hereunder; Attribute of Security Interest Home Buyers (A) DMI Finance (B) ArthVeda star & Arthveda J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided a 100% haircut to the dissenting financial Creditor and we find credence in the submissions made by the Ld. Counsel for the Resolution Professional and further as the projection over which the above said Financial Creditor claims to have been secured has already been completed and handed over to the respective allottees and therefore it is not presently in the realm of projects handled by the Corporate Debtor and covered in the Resolution Plan and the objection raised by the dissenting financial creditor is thereby overruled and a consequence thereof, the MA/641/2019 stands dismissed. 24. OBJECTIONS FILED BY THE APPLICANTS AGAINST REJECTION OF CLAIM BY THE RESOLUTION PROFESSIONAL 24.1. MA/659/2019, MA/819/2019, MA/627/2019 and MA/436/2019 are filed by the Applicants against the rejection of the claim by the Resolution Professional. 24.2. In relation to MA/659/2019, the Ld. Counsel for the Applicant submitted that the Applicant paid a sum of Rs. 11,50,000/- to the Corporate Debtor for the project "Innova" and since there was substantial delay in the project, the applicant requested to cancel the allotment and requested for a refund. The Corporate Debtor insisted on deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor for construction of flats and entered into three different agreements with the Corporate Debtor for payment of land Brokerage Commission. The applicant claiming to be a Financial Creditor, submitted a claim to the tune of Rs. 60,87,045 to the Resolution Profession on 14.12.2018, however it was rejected. 24.6. The Ld. Counsel for the Resolution Professional submitted that the Applicant is an Operational Creditor and not a Home Buyer and the Claim filed in Form CA is non est. Further, no "agreement to render service" has been entered into between the Applicant and the Corporate Debtor and a perusal of Sale agreement eventhough discloses that the consideration has been received in full but the said agreement has not disclosed the flats which are being allotted to the Applicant and based upon the said factual position, the Resolution Professional has rejected the claim of the Resolution Professional and we also find credence in the submissions made by the Ld. Counsel for the Resolution Professional and hence the MA/819/2019 stands dismissed. 24.7. In relation to MA/627/2019 and MA/436/2019 it was submitted by the Ld. Counsel for the applicants that the applicants are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MA/436/2019 stands dismissed. 25. OBJECTIONS RAISED BY THE HOME BUYER 25.1. In relation to the objections raised by the Home Buyers in MA/710/2019, MA/874/2019 and MA/876/2019, the fulcrum of their challenge is with regard to the classification of their claim as "Duplicate Claim" by the Resolution Professional in and by which, as per the Resolution Plan, the Resolution Applicant proposes to pay 20% of their admitted claim amount to these category of Home Buyers. The Ld. Counsel for the Resolution Professional contended that during the CIR Process, it came to its notice that some of the flats promoted by the Corporate Debtor had been allotted to two persons /allottees and that both the allottees as Home Buyers came to file a claim against the said flat and since only one home buyer claimant can be tagged to an apartment, the RP adopted the following rationale: a. In case same flat allotted to more than one person, both the claims are admitted, provided proper proof has been shown as to payment. b. The flat however tagged/allotted in favour of the claimant/home buyer. i. In whose favour sale deed has been executed ii. where the payments have been made through banking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice being issued, has filed its memo of objections to the Resolution Plan, wherein, it has been stated that the Corporate Debtor has outstanding demands for 5 years amounting to nearly 2 Crores as provided below; S'. No. Assessment Year Demand in Rs. 1 2009 - 10 Rs. 2,83 290/- 2 2013 - 14 Rs. 11,16,620/- 3 2014 - 15 Rs. 1 37,04 250/- 4 2015 - 16 Rs. 13,12,217/- 5 2017 - 18 Rs. 30,56,181/- 26.2. It was further submitted by the Ld. Counsel for the Income Tax that the Resolution Applicant has sought for waiver of tax or interest dues in para 6.1, 6.5, 7.4 and 7.6 of the Resolution Plan, and as there are tax arrears that have been unpaid over several years, such violation cannot be overlooked by this Authority and hence prayed for not to grant any relief with respect to the same. 26.3. The Ld. Counsel for the Income Tax further submitted that, the Corporate Debtor has failed to file the Income Tax returns for the Financial Year 2016 - 17 and 2017 - 18 in accordance with section 139 of the Income Tax Act, 1961 and in para 7.13 of the Resolution Plan it has sought to carry forward the loss for set off in the subsequent years. The Ld. Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in 82% by vote share and 86% of those present and voting and this decision is a 'commercial decision' by an amorphous group of individuals based on proper procedure laid down by following an evaluation matrix which cannot be assailed by any stakeholders even the dissenting financial creditors or the operational creditors. Further, it was contended that a candidate claiming to be a Resolution Applicant also cannot challenge the decision of the COC citing that he has not been duly considered and in order to fortify his submissions, reliance was placed upon the Judgment of the Hon'ble Supreme Court in K. Sashidhar -Vs- Indian Overseas Bank 2019 SCC Online SC 257, wherein in para 19 and 62 it was held as follows; "19.......In the present case, however, our focus must be on the dispensation governing the process of approval or rejection of resolution plan by the COC. The COC is called upon to consider the resolution plan under Section 30(4) of the I&B Code after it is verified and vetted by the resolution professional as being compliant with all the statutory requirements specified in Section 30(2). 62. ........ln the present case, however, we are concerned with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ram Chatterji & Ors. -Vs- Union of India & Ors. in W.P. No. 940/2017, wherein the Hon'ble Supreme Court has taken into consideration the fate of real estate business in India, the hard earned money invested by the Home buyers in the Real Estate and the Public Trust doctrine, which are all taken into consideration by the Resolution Applicant and to accord treatment to the Home Buyers. For the sake of convenience, para 72, 73 and 98 of the Bikram Chatterji (supra) judgment is extracted hereunder; "72. In our opinion, if the real estate business has to survive in India, it has to be answerable to the public and has necessarily to uphold the trust reposed in builders/promoters. They have been paid huge amounts not only by the home buyers but also, they have to pay a huge amount for the public land given to them on lease by Noida and Greater Noida Authorities for construction of houses. The land has been given to them by the authorities on a concessional basis by making payment of 10% amount at the time of allotment. The builders have to be accountable to public/home buyers as well as the authorities and bankers. It is a matter relating to housing needs dealing with shelter place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their balance dues to the Corporate Debtor and further the Home buyers are required to contribute by making additional payment per sq.ft. separately for each project which amounts to 29% on the average sale price of the projects and in order to substantiate this increase, the Ld. Counsel for the Resolution Professional relied upon the Bikram Chatterji (supra) wherein under para 152 (iv) the Supreme Court appointed NBCC to complete the various projects and hand over the possession to the buyers and the percentage of commission of NBCC was being fixed at 8%. However in the present case, due to the increase of costs in the building materials, and also taking into consideration the percentage of profit, the Resolution Applicant increase the price per sq. ft. and moreover the Home Buyers have voted in favour of the Resolution Plan by accepting such increase in the price and thereby the Home Buyers have taken a 'commercial decision' in and by which they are eager to take possession of their flats. Further, the Division Bench - II of this Tribunal in the matter of Orchid Pharma Limited in MA/579/2019 dated 27.06.2019 has held in para 7 that there is no mandate under the Code sayin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate project is otherwise viable, resolution plans from others may well be accepted and the best of these would then work in order to maximise the value of the assets of the corporate debtor. Corporate death, as has been stated in Swiss Ribbons (supra) is the last resort under the Code after all other available options have failed. This argument again need not deter us further." 27.6. As to the Relief and Concessions sought for in the Resolution Plan, taking into consideration the Judgments of the Hon'ble Supreme Court and Hon'ble NCLAT, we direct the Resolution Applicant to file necessary application before the necessary forum /authority in order to avail the necessary Relief and Concessions, if it is in accordance with law. 27.7. As to the 'Monitoring Committee', is concerned, the Resolution professional has made a prayer in MA/554/2019 to appoint a Monitoring Committee consisting of a representative each from Successful Resolution Applicant, the Home Buyers represented by one each from seven associations and other Financial Creditors and chaired by the Resolution Professional for a period of 3 months from date of approval of the Resolution Plan by this Adjudi ..... 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