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TMI Blog2022 (12) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... did not choose the name suggested by two Applicants and accepted the name suggested by one Applicant- Indiabulls Housing Finance Ltd. has not been dealt with the order. When the clear intent of the order dated 28.11.2022, is that unless the Applicants mutually agree on any name of the Resolution Professional, Resolution Professional will be appointed by the Adjudicating Authority, and it was clear that there was no consensus with regard to the name of the Resolution Professional between three Applicants, the Adjudicating Authority ought to have appointed Resolution Professional on its own without referring to or relying to any prayer made by the Applicant- Indiabulls Housing Finance Ltd. . The Adjudicating Authority committed error in appointing Mr. Sapan Mohan Garg as Resolution Professional whose name was submitted by Memo filed by Indiabulls Housing Finance Ltd. . The order dated 28.11.2022 (in order sheet) insofar as it appoints Mr. Sapan Mohan Garg as Resolution Professional is set aside and the Adjudicating Authority is directed to pass an order appointing any Resolution Professional from the eligible Resolution Professional as it deem fit and proper. The Order passed insofar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged in this Appellate Tribunal. The Appeals were filed by the Resolution Professional against the order of the Adjudicating Authority being Company Appeal (AT) (Ins.) No. 982 of 2021 with other connected Appeals in which order was passed by this Tribunal on 17.12.2021 which Appeals are pending consideration. In this group of Appeals, no issue pertaining to any vote share of any member of the Committee of Creditors (CoC) is for consideration nor any inter se dispute regarding different claims to be in the CoC is for consideration before us. 2.2. IA 2621 of 2021 in CP (IB) No. 494(MB)2019 was filed by 'SREI Equipment Finance Ltd.' seeking replacement of IRP. During pendency of IA 2621 of 2021, IRP was appointed as Resolution Professional (RP) by order dated 06.01.2022. 'IIRF India Realty XII Ltd.' also filed an Application being IA No.1304 of 2022 before the Adjudicating Authority seeking removal of RP- Srigopal Choudhary. IA No. 3537 of 2022 was filed by 'Indiabulls Housing Finance Ltd.' for removal of the Resolution Professional. 'Indiabulls Housing Finance Ltd.' has also filed a Company Appeal (AT) (Ins.) No. 1237 of 2022 before this Tribunal challenging the order dated 06.01.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Menezes be appointed as the Resolution Professional. 2.5. On 05.12.2022, the Adjudicating Authority passed an order in IA No. 3675/2022 partly allowing the Application. The Company Appeal (AT) (Ins.) No. 1472 of 2022 and Company Appeal (AT) (Ins.) No. 1520 of 2022 have been filed challenging the order dated 28.11.2022 (in order sheet) whereas Company Appeal (AT) (Ins.) No. 1519 of 2022 as well as Company Appeal (AT) (Ins.) No. 1521 of 2022 have been filed challenging the order dated 05.12.2022 passed in I.A No. 3675 of 2022. 3. We have heard Shri Abhijeet Sinha, Learned Counsel appearing for Appellant in Company Appeal (AT) (Ins.) No. 1472 of 2022 and Company Appeal (AT) (Ins.) No. 1519 of 2022; Shri Krishnendu Datta, Learned Senior Counsel has appeared in Company Appeal (AT) (Ins.) No. 1520 of 2022 and Company Appeal (AT) (Ins.) No. 1521 of 2022; Shri Vikram Nankani, Learned Senior Counsel appearing for 'Indiabulls Housing Finance Ltd.' and Shri Gaurav Mitra, Learned Counsel appearing for Srigopal Choudhary. With the consent of the parties, we proceed to dispose of these Appeals finally. 4. Shri Abhijeet Sinha, Learned Counsel appearing for 'IIRF India Realty XII Ltd.' submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .' has filed Joint Memo with 'IIRF India Realty XII Ltd.' recommending Mr. Avil Jerome Menezes. It is submitted that when the Adjudicating Authority by passing order dated 05.12.2022 accepted that there was no Joint Memo by 'SREI Equipment Finance Ltd.' and 'Indiabulls Housing Finance Ltd.', the very foundation of the order appointing Mr. Sapan Mohan Garg was knocked out and the order ought to have been set aside. It is submitted that the order appointing Mr. Sapan Mohan Garg deserves to be set aside. 6. Shri Vikram Nankani, Learned Senior Counsel appearing for 'Indiabulls Housing Finance Ltd.' firstly raise objection to the locus of the 'SREI Equipment Finance Ltd.' to file the Appeal. It is submitted that 'SREI Equipment Finance Ltd.' itself is in CIRP and the authorized representative who has filed the Appeal on behalf of 'SREI Equipment Finance Ltd.' is not competent to file an Appeal. He has referred to para 7.1 of the Company Appeal (AT) (Ins.) No. 1520 of 2022 where 'SREI Equipment Finance Ltd.' itself has been stated that CIRP has commenced against 'SREI Equipment Finance Ltd.' by order dated 08.10.2021 and one Mr. Rajneesh Sharma was appointed as Administrator of the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eesh Sharma was appointed as the Administrator of the Appellant. The present Appeal has been filed through Mr. Pradeep Faujdar, Senior Vice-President-Legal of the Appellant, who is duly authorized by the Appellant to file this appeal." 11. Shri Krishnendu Datta, Learned Senior Counsel further submits that Shri Pradeep Faujdar has been duly authorized representative of the Appellant which averment has categorically made in the Appeal. It is submitted that 'SREI Equipment Finance Ltd.' has filed IA No. 2621/2021 in C.P. (IB)/ 494(MB)2019 before the Adjudicating Authority where all details regarding filing of the Applications have been mentioned. 12. We have been noticed the pleadings by 'SREI Equipment Finance Ltd.' in Company Appeal (AT) (Ins.) No. 1520 of 2022 where it is categorically pleaded that the administrator Shri Rajneesh Sharma has duly authorized the Appellant. We do not find any substance in the objection raised by 'Indiabulls Housing Finance Ltd.' regarding locus of the Appellant to file the Appeal. We, thus, hold that 'SREI Equipment Finance Ltd.' has locus to file Company Appeal (AT) (Ins.) No. 1520 of 2022 and Company Appeal (AT) (Ins.) No. 1521 of 2022. 13. As no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by IIRP Realty XII Ltd., thereby removing Mr. Srigopal Choudhary as the Resolution Professional of the Corporate Debtor. 2. It has further been directed by this Hon'ble Tribunal on 28th November 2022, that the parties to file a joint memorandum suggesting the name of the new Resolution Professional to replace Mr. Srigopal Choudhary in the present case. 3. IIRF Realty XII Limited and SREI Equipment Finance Limited are filing the present memo to jointly propose the name of Mr. Avil Jerome Menezes to be appointed as the new Resolution Professional of the Corporate Debtor in the present case by this Hon'ble Tribunal. 4. The name of Mr. Avil Jerome Menezes has already been proposed by IIRF India Realty XII Ltd. in I.A. No. 1304 of 2022. 5. Mr. Avil Jerome Menezes on 4th May 2022 has furnished his written consent to IIRF India Realty XII Ltd. to act as the Resolution Professional of the Corporate Debtor. Further, Mr. Avil Jerome Menezes as on 28th November 2022 has also furnished his written consent to SREI Equipment and Finance Limited to act as the Resolution Professional of the Corporate Debtor. Copies of the written consents of Mr. Avil Jerome Menezes are annexed herewit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22015 Have Valid AFA Yes Name of the IP Ms. Neehal Mahamulal Pathan Registration no IBBI/IPA-001/IP-P-01561/2018-2019/12406 Date of Registration 27-Feb-19 Member of IPA Indian Institute of Insolvency Professionals of ICAI Member of IPE Member of IPA Since 16-Jan-19 Email id [email protected] Address RS No. 825, Plot No. 27, Sahjeevan Parisar, Karande Mala, Near TPM CHURCH BEHIND CIRCUIT HOUSE KOLHAPU Kolhapur, Maharashtra 416003 Have Valid AFA Yes Name of the IP Mr. Sapan Mohan Garg Registration no IBBI/IPA-002/IP-N00315/2017-2018/10903 Date of Registration 14-Aug-17 Member of IPA ICSI Institute of Insolvency Professionals Member of IPE Email id [email protected] Address D-54, First Floor Defence Colony, New Delhi,National Capital Territory of Delhi, 110024 Have Valid AFA Yes AFA Certificate No. AA2/10903/02/060123/201895 4. It is humbly prayed accordingly." 16. Joint Memo was filed by 'SREI Equipment Finance Ltd.' and 'IIRF India Realty XII Ltd.' praying for appointment of Mr. Avil Jerome Menezes whereas Memo which was filed by 'Indiabulls Housing Finance Ltd.' and 'UV Asset Reconstruction Company Limited' was not the Joint Memo by the Appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty XII Ltd.' recommending the name of Mr. Avil Jerome Menezes. Why the Adjudicating Authority did not choose the name suggested by two Applicants and accepted the name suggested by one Applicant- 'Indiabulls Housing Finance Ltd.' has not been dealt with the order. When the clear intent of the order dated 28.11.2022, as noticed above, is that unless the Applicants mutually agree on any name of the Resolution Professional, Resolution Professional will be appointed by the Adjudicating Authority, and it was clear that there was no consensus with regard to the name of the Resolution Professional between three Applicants, the Adjudicating Authority ought to have appointed Resolution Professional on its own without referring to or relying to any prayer made by the Applicant- 'Indiabulls Housing Finance Ltd.'. 19. Further in the order dated 05.12.2022 which was subsequently passed on IA 3675/2022 filed by 'SREI Equipment Finance Ltd.' it was accepted by the Adjudicating Authority that Joint Memo was not filed by Applicants- IA No. 3537/2022 and IA No. 2621 of 2021 and the Adjudicating Authority had allowed prayer (a) to the effect that words "Applicants" and "Jointly" referred to para 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2022 has to be given effect by the Resolution Professional on deposit of the amount, the Resolution Professional to execute the sale deed in favour of 'Kalpataru Properties Pvt. Ltd.' (Appellant therein) within 10 days. The earlier Resolution Professional Srigopal Choudhary having been removed by the Adjudicating Authority on 28.11.2022 against which order there is no interim order continuing Srigopal Choudhary and Mr. Sapan Mohan Garg new Resolution Professional appointed by the Adjudicating Authority, having been set aside by us, a Resolution Professional needs to be in place to carry out the order of the Hon'ble Supreme Court dated 14.11.2022. We, thus, direct the Adjudicating Authority to pass an order appointing a Resolution Professional within one week from the date copy of this order is produced. Learned Counsel for the Appellant is directed to produce copy of this order within three days from today to enable the Adjudicating Authority to fix a date for passing an appropriate order. We may further notice that the order passed by the Hon'ble Supreme Court dated 14.11.2022 passed in Civil Appeal No. 7050/2022 has not been placed by any of the parties to the Appeal in the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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