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TMI Blog2021 (10) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... amount claimed and operational creditor are paid 0.295% of claim wherein if the company goes in liquidation the same values will deplete substantially. Thus, the resolution plan needs to be approved. The resolution plan, as approved by the CoC, is in accordance with the sub-section 2 of Section 30 read with Section 31 of the Code and as the Resolution Applicant is not disqualified under Section 29A of the Code; we hereby approve the Resolution Plan under sub-section (1) of Section 31 of the Code - It is hereby declared that the Resolution Plan is binding on the corporate debtor, members, employees of the corporate debtor, creditors of the corporate debtor and other stakeholders involved in the Resolution Plan - moratorium order passed by this bench under Section 14 of the Code shall cease to have effect. Resolution Plan approved - application allowed. - IA No. 1303/2020, 3542/2020 in CP(IB) No. 408/ND/2018 - - - Dated:- 6-8-2021 - Dr. Deepti Mukesh, Member (J) And Sumita Purkayastha, Member (T) For the Appellant : Navya Khillon and Pulkit Deora , Advocates ORDER Dr. Deepti Mukesh , Member ( J ) 1. The instant application has been filed by the Resolution P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as appointed in accordance with Regulation 27, however the transaction auditor informed that they started undertaking the audit from the month of July 2019. The CoC was duly constituted on 22.01.2019 comprising of HDFC Limited, Axis Bank and Homebuyers. 6. The RP submits that an application was also moved before this bench on 16.01.2019 against the suspended board members for non co-operation under section u/s. 19(2) and 19(3) of the I B Code, 2016 but the same was disposed. 7. The RP submits that on 29.12.2019, a mail was received from two consortium members out of 5 members of one of the Prospective resolution applicants namely Ajay Yadav Co. informing about withdrawal from the consortium. However, Mr. Ajay Yadav continued with his resolution plan (through amended consortium of Mr. Ajay Yadav and Mrs. Lata Yadav against the plan submitted earlier in which 5 members contributed on 29.12.2019). The same was placed before the members of the committee. That on 04.01.2020 an email was received from one of the prospective resolution applicants to allow further time for submission of resolution plan. Thereafter it was decided to grant time to both the prospective resolution ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... longwith other office bearers of the Corporate Debtor including misappropriation of funds, violation of FBI norms, illegal buy back of share and defrauding the innocent home buyers. The petitioner have filed the copy of order of Hon'ble High Court of Delhi, which held that 'the 10 land owning Companies, which though strangely not part of the CIRP proceedings but an essential part of the Resolution Plan, have been directed not to create any third party interest, i.e. Not to transfer ownership or title.' The objectors have stated that the funds that were received from the public and investors, instead of buying the land for the project in its name, the corporate debtor misappropriated the funds so received and the land of the project was bought in the name of 10 land owning companies, hereby meaning that the corporate debtor does not own the project land, it had entered into a Joint Development Agreement with the 10 land owning Companies for development of the project. The Resolution Applicant in its Resolution Plan has stated that it shall buy the shares of 10 land owning companies thereby making them subsidiaries of the corporate debtor. 13. It is submitted that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n done in order to make the banks having the majority of the Voting share. The Banks having a majority voting share of 64% have been catered by the RA and whereas the Home buyers have been grossly overlooked. D. Differential Treatment Even Within the Same Class of Creditors (Home Buyers) - That the Resolution Plan is discriminatory towards the Flat, buyers, Applicants who had invested in the project for getting a built up property. It is submitted that the Resolution Applicant has kept the plot owners in mind while making the present Resolution Plan, however the needs of the Flat owners have been completely disregarded. No haircut has been borne by the Plot owners, it is only the Flat buyers who have received the haircut vis-a-vis their while making the present Resolution Plan, however the needs of the flat owners have been completely disregarded. Thus, the Resolution Plan is discriminatory. It is submitted that the I B Code defines Resolution Plan as a plan for insolvency resolution of the Corporate Debtor as a going concern. It is submitted that the present plan, as is envisaged by the Resolution Applicant is not a viable plan nor does it keep the corporate debtor as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of resolution plan are set out in the IBC, 2016 read with IBBI (CIRP) Regulations, 2016. Which are briefly set forth herein below: Section/Regulation Compliance made Section 30(1) of the IBC, 2016 As per form H separate affidavit has been filed by Resolution Applicant to confirm its eligibility Section 30(2)(a) of the IBC, 2016 And As per chapter V of the resolution plan the insolvency process cost will be paid in priority. The Resolution Plan provides for the interest of all stakeholder, including Financial Creditors and Operational Creditors, of the Corporate Debtor. Regulation 38(1A) of IBBI (Insolvency Process for Corporate Persons) Regulations, 2016 The amount claimed by secured financial creditors are ₹ 25716.79/- lakhs and the amount provided under the plan is ₹ 20688.08/- lakhs. The resolution applicant is offering the following options to the homebuyers (allotees) under the resolution plan: i. Possession to plot applicant ii. Possession to flat applicant iii. Interest settle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f claim wherein if the company goes in liquidation the same values will deplete substantially. Thus, in our view resolution plan needs to be approved. 21. In view of the above discussion that the resolution plan, as approved by the CoC, is in accordance with the sub-section 2 of Section 30 read with Section 31 of the Code and as the Resolution Applicant is not disqualified under Section 29A of the Code; we hereby approve the Resolution Plan under sub-section (1) of Section 31 of the Code. 22. It is hereby declared that the Resolution Plan is binding on the corporate debtor, members, employees of the corporate debtor, creditors of the corporate debtor and other stakeholders involved in the Resolution Plan. 23. It is also declared that the moratorium order passed by this bench under Section 14 of the Code shall cease to have effect. 24. The Resolution Professional shall forward all records relating to the CIRP process and the resolution plan to IBBI to be recorded at its data base in terms of Section-31(3)(b) of the Code. 25. The approved 'Resolution Plan' shall become effective from the date of passing of this order. 26. IA No. 3542/2020 is rejected and I.A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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