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TMI Blog2023 (8) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... ai Shah, Adv. Mr. Sharanya Sinha, Adv. Mr. Nikhil Nayyar, Sr. adv. Mr. Pawan Bhushan, Adv. Mr. Divyanshu Rai, Adv. Mr. Shivraj Gaonkar, AOR Mr. Jaideep Gupta, Sr. Adv. Mr. K. S. Mahadevan, Adv. Mrs. Swati Bansal, Adv. Mr. Rangarajan .R, Adv. Ms. Anindita Mitra, Adv. Mr. Siddharth Singh, Adv. Mr. Rajesh Kumar, AOR ORDER M/s Ambojini Property Developers Pvt. Ltd. had advertised for a Real Estate Project "Sai Peace and Prosperity Apartments." The Project was scheduled and completed and handed over to the respective flat buyers by December 2018. The project never saw a growth beyond the piling work effectively leaving the flat buyers high and dry. In furtherance of the real estate project, to invite funds, the appellant was invited through t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor and its Promoters under Section 34 of the Arbitration and Conciliation Act, 1996 (for short," the Arbitration Act, 1996). As informed, neither of these objections to the petitions were admitted nor notice issued as on date. One of the operational Creditors (Nuvco Vistas Corporation Ltd.) moved the NCLT, Chennai under Insolvency and Bankruptcy Code, 2016(for short, the Code") by an application under Section 9 of the said Code to initiate Corporate Insolvency Resolution Process against the Corporate Debtor. The appellant submitted the claim in terms of the award. The Interim Resolution Professional initially admitted the claim of the appellant as a Financial Creditor but, Mr. V.S. Suresh contended that the appellant should be treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 20.09.2021, the NCLAT set aside the NCLT order opining that the appellant should be treated as a 'related party' and the second proviso to Section 21(2) of the Code to be inapplicable in the present case. It is not really necessary for us to go into the rationale for the opinion as set out because of what is transpired before us now, but suffice to say that we were hearing the appeals against the said order preferred by the appellant. We have heard the learned senior counsels for the appellant at some length yesterday and they concluded their submissions. The plea arising from second proviso to Section 21 (2) of the Code was not something urged before us. The submissions were in the conspectus of: a) The operational decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial pronouncements were cited in this behalf- Arcelor Mittal India Pvt. Ltd. v. Satish Kumar Gupta &Ors. (2019) 2 SCC 1, Vodafone International Holdings BV vs. Union of India (2012) 6 SCC 613 and Subhkam Ventures Pvt. Ltd. Vs. SEBI (2010) SCC OnLine SAT 35. We have the benefit of hearing submissions of Mr. Nikhil Nayyer learned senior counsel. In the course of arguments, we put certain proposals to both the flat buyers represented by Mr. Nayyer and the appellant as the effect of the NCLAT order would be to almost restart the process. This is also in the context of the submission of the learned counsel for the appellant that if the appellant were not even permitted to vote in the CoC, taking into account the balance votes, the requisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards any other flat buyer as this was a sacrifice being made by them for the flat buyers and otherwise the plan as it is would be presented before the NCLT for its approval. c) NCLAT Appeal No.252/2020 filed by the flat buyers which had resulted in the impugned judgment would stand withdrawn and the impugned judgment would thus not hold good subject only to a plea sought to be advanced by erstwhile Director represented by Mr. Rana Mukherjee, learned senior counsel which we will deal with hereinafter. d) All pending complaints filed by the flat buyers pending before the Tamil Nadu Real Estate Regulatory Authority (RERA) will stand withdrawn and all proceedings arising from the orders passed by Tamil Nadu RERA shall also stand withdrawn. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt where they could not comply with the financial obligations. The dispute arose despite that in arbitration in which an award has been passed against the promoters. Almost 150 crores plus have been awarded to the appellant, out of which the appellant, according to the successful resolution plan, would get about 90 crores less the 11 crores being sacrificed for the flat buyers and objections under Section 34 of the Arbitration Act, 1996 have not moved at all, ostensibly on account of settlement talks. Mr. Rana seeks to rely upon the judgment of this Court in Vijay Kumar Jain v. Standard Chartered Bank & Ors. (2019) 20 SCC 455 qua the role of the erstwhile Board of Directors. We have examined the said judgment and find that there is a cavil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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