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TMI Blog2024 (6) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sneha Jai Singh, Ms. Vaishnavi Rao, Mr. Divyam Sharma, Mr. Manan Shah and Mr. Akash Chatterjee, Advocates For the Respondents : Mr. Trishmpati Sen, Ms. Riddhi Sancheti, Mr. Ashish Parwani, Mr. Dikshat Mehra, Mr. Chintan Gandhi, Mr. Anurag Anand and Mr. Mukul Kulhari, Advocates for R-1/RP. Mr. R. Sudhinder, Mr. Ranjit Shetty, Mr. Sandeep Singhi, Mr, Luckyraj Indorkar, Ms. Aastha Trivedi, Mr. Arjun Amin and Ms. Ekta Bhasin, Advocates. Mr. Rahul Kriplani, Ms. Suhasini Sen, Mr. Aditya Pratap Singh Chauhan, Mr. Kinnar Shah, Ms. Nitya Shah, Ms. Supraja V. and Ms. Surbhi, Advocates for R-4 & R-7. Mr. Dhruv Mehta, Sr. Advocate with Mr. Denzil Arambhan, Mr. Pranaya Goyal, Mr. Dharav Shah, Ms. Amisha Patel, Mr. Dhawal Desai and Mr. Shubham Saini, Advocates for R-2. JUDGMENT ASHOK BHUSHAN, J. These appeals viz. Comp. App. (AT) (Ins.) No. 1494-1495 of 2022 & Comp. App. (AT) (Ins.) No. 99 of 2023 by two dissenting Financial Creditors have been filed challenging the order dated 02.12.2022, by which I.A. 503/2022 and I.A. 931/2022 in C.P. (IB) No. 1390/2020 filed by Beacon Trusteeship Ltd. objecting to the Resolution Plan and I.A. 808/2022 in C.P. (IB) No. 1390/2020 filed by ICICI Pruden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIRP) against the Corporate Debtor. (x). On 22.01.2021, Municipal Corporation of Greater Mumbai (MCGM) issued a circular granting a rebate/discount of 50% on the FSI premium payable by developers provided the FSI premium is paid by the developers on or before 31.12.2021. (xi). On 30.04.2021, Adjudicating Authority admitted Section 7 application filed by Beacon Trusteeship Ltd. initiating CIRP against the Corporate Debtor. (xii). On 05.05.2021, an interim award was passed by Learned Arbitrator in the Arbitration Proceedings initiated by DB against the society. (xiii). Under interim award, stay was granted on the termination of the Development Agreement subject to compliance of certain terms and conditions by DB which included conditions of several payments to society. (xiv). In the CIRP of the Corporate Debtor, Committee of Creditors (CoC) was constituted on 02.07.2021. (xv). The CoC consisted of following: a) Homebuyers - 33.41% b) HDFC Ltd. - 33.25% c) Piramal Capital & Housing Finance Ltd. - 17.27% d) Beacon Trusteeship Ltd. 7.44% e) ICICI Prudential Venture Capital Fund Real Estate Scheme I - 5.71% f) Yes Bank Ltd. - 2.39% g) Infinite Buildcon Private L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecuted between the society and the DB resolving disputes between them. xxx. In pursuance after approval of the Plan, the Respondent No. 2 infused an amount of Rs. 450 Crores as interim finance up to 31.12.2021, which was utilised towards payment of dues of the society, FSI premium to MCGM and commencement of construction of project. (xxxi). The Appellants filed their I.A. Nos. 503, 837 & 808/2022, objecting to the Resolution Plan and the valuation of the Corporate Debtor. (xxxii). On 07.10.2022, SRA filed an Additional Affidavit waving its rights over the proceeds of the avoidance transaction of an amount of Rs.1052 Crores of the Corporate Debtor in favour of the CoC. (xxxiii). Majority Members of the CoC have also approved the said Additional Affidavit by filing respective Affidavit before the Adjudicating Authority. (xxxiv). On 02.12.2022, Adjudicating Authority passed an order in I.A. Nos. 503, 837 & 808/2022, rejecting the objections filed by the Appellant to the Resolution Plan. 5. The Order dated 02.12.2022 was challenged by the Appellants by means of Comp. App. (AT) (Ins.) No. 1494 - 1495/2022. In Comp. App. (AT) (Ins.) No. 1494 - 1495/2022 an interim order was pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CoC. The Valuation Report which was submitted by the valuers appointed by RP were prepared without all relevant information available to the valuers. There being no proper valuations before the CoC, the decision of the CoC cannot be said to be in exercise of its commercial wisdom. The Resolution Plan submitted by Respondent No. 2 was a conditional Resolution Plan which ought not to have been approved. 13. It is submitted that payments sought to be made to the Appellant who were dissenting Financial Creditor is in violation of Section 30(2)(b)(ii) read with Section 53(1) of the Code since the Appellant are not being paid, the liquidation value as per value of their security interest. Appellant - Beacon Trusteeship Ltd. have security interest in 15 unsold flats and receivable from 12 sold flats whereas ICICI Prudential Venture Capital Fund Estate Scheme I has security interest in 14 unsold flats and receivables from 4 sold flats. The liquidation value of the assets of the Corporate Debtor is grossly undervalued and the Valuation Report suffers from material irregularities, there were other material irregularities committed by the RP in the entire process which were hurried to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive any interim finance in spite of requirement of interim finance having been noted in several Meetings of the CoC. When the CoC refused to give any interim finance, there was no option except to require the finance from the SRA. Payment of FSI premium prior to 31.12.2021 was necessary to save the benefit of Rs. 100 Cores to the Corporate Debtor. The Appellants were party to all proceedings and were well aware of all discussions and proceeding in the Meetings of the CoCs. 17. The argument that Valuation Reports were not correct has no substance. The RP has shared all information regarding the Corporate Debtor available with it to the valuers and valuers after detailed correspondence with the RP had provided the Valuation Report. Valuers who submitted the Reports are expert and it is not open for the Appellant or this Tribunal to sit in Appeal on the Valuation Report. It is submitted that Resolution Plan is fair and equitable to all Creditors, Homebuyers constituted a different category of Financial Creditor in a class and the fact that they are being provided homes without being asked to pay any escalation price is not a ground on which Resolution Plan can be interfered with, CoC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the RFRP and constructions are likely to complete by June 2024. Resolution Plan is fair and equitable. The receivables from the Corporate Debtor were much low than the amount to be spent in for the construction of Resolution. The Resolution Plan is in compliance with Section 30(2) which compliance has been checked by the Adjudicating Authority while passing the order dated 09.01.2023. The Appellants and dissenting Financial Creditors are entitled to the payment of the amount as per Section 30(2)(b) which amount has already been paid to the Appellant. 22. Sh. Ramji Srinivasan, learned Sr. Counsel appearing for lead Financial Creditor HDFC Bank Ltd. submits that HDFC is a Secured Financial Creditor having 33.25% voting shares. HDFC is also Homebuyers with 5.4% out of 33.41% Homebuyers shares. Respondent No. 3 has extended a loan facility of Rs. 1,100 Crores to MIG against which DB has given the Corporate Guarantee in favour of Respondent No. 3. Loan given to MIG is separate and different transaction between Respondent No. 3 and MIG and has no bearing on the CIRP against the Corporate Debtor. HDFC has necessarily sought protection of the Homebuyers interest in the 9th CoC Meeting. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent granted certain rights to the Corporate Debtor upon discharging certain costs and obligations, including the obligation to cause and complete the construction of the Project. Under the Agreement with the society the DB had to provide flats to the Members of the society and there were under the Agreement certain rights to the DB for free sale. The society had terminated the Development Agreement on 08.05.2020. The consequence of which was that rights given by DB to the Corporate Debtor were to automatically come to an end. Termination letter dated 08.05.2020 was challenged by the DB before the Bombay High Court in Arbitration Proceedings where an interim award was given by Arbitrator on 05.05.2021, by which Termination Notice was stayed subject to various conditions to be fulfilled by the DB which included payment of arrears of hardship compensation to the society as well as payment of hardship compensation of Rs. 3,09,00,000/- per month. 26. In the CoC Meetings, the progress in the CIRP were apprised from time to time by the RP. In the 3rd CoC Meeting held on 13.09.2021 and under Item No. 7, letter received on 04.09.2021 from MIG Bandra (DB) was noted. In Item No. 7 following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to provide business plan at least one day prior to the meeting, which the representative of MIG an Adani stated that they will try. Representatives of MIG and Adani then left the meeting with the permission of the Chair. Representative of Yes bank wanted to know whether step in rights invoked by MIG are legitimate or not as apprehended by them in previous CoC Meetings, to which the Chairman stated that as he has taken over charge very recently, he requires some time to go through the same and take legal advice. Query was also raised by representative of Beacon as to whether proposal made by MIG and Adani would constitute as a resolution plan. The Chairman replied that the same will be the nature of the proposal will have to be ascertained after receiving it and once it has been vetted by the legal advisors, he will be able to respond to the same." 27. Further in Item No. 13, Homebuyers views was noted where Homebuyers expressed their satisfaction on the offer made as communicated vide letter dated 04.09.2021. In 4th CoC Meeting held on 17.09.2021, where it was decided to carry on the construction. The views of the CoC as noticed in 4th CoC Meeting under Item No. 5 are as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld on 20.05.2021 draft RFRP was also approved in the said Meeting, subsequently, RFRP was issued by the RP. In Clause 5.6 it was contemplated that after approval of the Plan and issue of LoI, SRA is required to commence construction. Clause 5.6 of the RFRP is as follows: "5.6 Within [*] days from the acceptance of the LoI, the Successful Resolution Applicant shall be required to commence construction on the site against reimbursement of cost basis, or such other basis as the CoC may approve. The aforesaid obligation shall continue until the Successful Resolution Applicant becomes eligible to implement the approved Resolution Plan, consequent upon issuance of all necessary approvals." 30. We may also notice that in the 7th CoC Meeting held on 20.05.2021 under Item No. 9, it was also resolved that the required funds for the premium payment are to be made before 31.12.2021. It was further noticed that Resolution Applicant was to make payment of around Rs. 600 Crores towards commencement of the construction. Under Item 9, following was recorded: "Item No. 9 To discuss and approve drat of Request for Resolution Plan (RFRP) along with the performance security as required under re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived from two entities including Respondent No. 2 but only one Resolution Plan was received from Respondent No. 2, which fact has been noticed that it was only Respondent No. 2 who was only eligible Resolution Applicant. In Item No. 7 of the 9th CoC Meeting held on 11.11.2021, following was recorded: "Item No. 7 To take note of the Provisional List of Prospective Resolution Applicants ("PRAs") and further course of action: The Chairman informed the CoC that the Provisional List of PRAs had been circulated to the CoC and the PRAs on 2nd November 2021 consisting of sole PRA viz. Adani Goodhomes Private Limited ("Adani") fulfilling eligibility criteria set out by the CoC u/s 25 (2)(h) of the Code. He further informed that another PRA i.e. Ashadn Group, which was not eligible, has withdrawn its EOI and has sought refund of the deposit vide email dated 4th November 2021. Hence, Rs. 25,00,000/- paid by the Ashdan Group along with EOI has deposited will be refunded. The Chairman further informed the CoC that he has issued RFRP. Evaluation Matrix and Information Memorandum to Adani to submit its Resolution Plan for the CD on or before 7th December 2021. Further, the Final List o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Adjudicating Authority was challenged by the Beacon and ground for challenging the Valuation Reports were advanced, which were rejected by the Adjudicating Authority vide its order dated 02.12.2022 on insufficient ground. The submission of the Appellant(s) have been opposed by the learned Counsel appearing RP and SRA. It is submitted that appointment of Valuers was approved by the CoC and the Valuers were appointed in accordance with CIRP Regulations, 2016, who have submitted comprehensive Reports. It is submitted that two Valuers were appointed for valuation of immovable property, whereas two Valuers were appointed for financial assets. It is submitted that Reports were submitted by Experts, after considering all aspects of the matter. In the Valuation Reports submitted by both the Valuers, there was no substantial difference. 37. To appreciate the submissions of the learned Counsel for the parties, it is useful to refer briefly the Valuation Report of immovable property submitted by Sudeep H.B. & Co., who was appointed to value the land and building. The Valuation Report has been brought on the record, which indicate that Valuation Report has been indexed in 51 subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- Interest @ 11% for a period of 30 months 131,81,19,788/- Net Turnover from the Project i.e. Rs. 1471,67,54,363/- - Rs. 131,81,19,788/- = Rs. 1339,86,34,575/- Assuming Developer's Profit from the Net Turnover value @10% 133,98,63,457/- Total 1471,67,54,363/- 1464,08,90,409/- ∴ Total Value of Project = Gross Turnover from the project - Outgoings = Rs. 1471,67,54,363/- - =Rs. 1464,08,90,409/- = Rs. 7,58,63,954/--(A) ============== The above Residual is differ for a period of 1.5 years @ 13% p.a. (Capitalization WACC rate) ∴ Present Value = 1 (P.V.) &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Adjudicating Authority in paragraph-5 of the order, which is as follows: "5. .... The present Resolution Professional as per the regulations obtained valuation reports from five valuers namely M/s Sundeep H.B. & Co., M/s TrueVaI Advisors, Mr. Shrenik Doshi, CA, Mr. Mahish Jaju, CA and M/s G. M. Kapadia & Co. The independent valuers who have given separate valuation report did not find fault with the earlier valuers in so far as the method of valuation adopted by the earlier valuers is concerned. The True Val Report Showed the fair value of the Project to be Rs. 3.24 crores and the liquidation value of the Project to be a mere Rs. 2.47 Crores whereas the Sundeep H.B. Report showed the fair value of the Project to be Rs. 6.31 Crores and the liquidation value of the Project to be Rs. 4.81 Crores which is not so disproportionate. Valuation always depends upon numerous factors like the quality and nature of asset, prevailing market conditions and whether the asset is free from all encumbrances and litigations etc. and also on the reputation of the owner at times. The limited role of the Tribunal is to see whether the Resolution Professional has obtained the valuation certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the parties. The present appeal under Section 62 ["62. Appeal to Supreme Court.-(1) Any person aggrieved by an order of the National Company Law Appellate Tribunal may file an appeal to the Supreme Court on a question of law arising out of such order under this Code within forty- five days from the date of receipt of such order.(2) The Supreme Court may, if it is satisfied that a person was prevented by sufficient cause from filing an appeal within forty-five days, allow the appeal to be filed within a further period not exceeding fifteen days."] of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "the Code") is directed against the judgment dated 19-1-2022 (hereinafter referred to as "the impugned judgment") passed by the National Company Law Appellate Tribunal (hereinafter referred to as "NCLAT") in Ramkrishna Forgings Ltd. v. ACIL Ltd. (Resolution Professional) [Ramkrishna Forgings Ltd. v. ACIL Ltd. (Resolution Professional), 2022 SCC OnLine NCLAT 1151] which has upheld the order [IDBI Bank Ltd. v. ACIL Ltd., 2021 SCC OnLine NCLT 30896] passed by the adjudicating authority (National Company Law Tribunal [ The National Company Law Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has only indicated that when "figures of crores" are emerging stage-wise, "then there is no harm to look at the expert opinion", which the adjudicating authority - NCLT in this case has asked for. 37. It is worthwhile to note that the adjudicating authority has jurisdiction only under Section 31(2) of the Code, which gives power not to approve only when the resolution plan does not meet the requirement laid down under Section 31(1) of the Code, for which a reasoned order is required to be passed. We may state that NCLT's jurisdiction and powers as the adjudicating authority under the Code, flow only from the Code and the Regulations thereunder. It has been held in Jaypee Kensington Boulevard Apartments Welfare Assn. v. NBCC (India) Ltd. [Jaypee Kensington Boulevard Apartments Welfare Assn. v. NBCC (India) Ltd., (2022) 1 SCC 401 : (2022) 2 SCC (Civ) 165] : (SCC p. 669, para 273) "273. ... 273.1. The adjudicating authority has limited jurisdiction in the matter of approval of a resolution plan, which is well-defined and circumscribed by Sections 30(2) and 31 of the Code. In the adjudicatory process concerning a resolution plan under IBC, there is no scope for interference wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , has noted the case of the Homebuyers and also noted the distinction between 'Secured' and 'Unsecured' Creditors. It is useful to extract paragraphs 4, 5 and 11 of the judgment, which are as follows: "4. In "Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta & Ors. ", the Hon'ble Supreme Court made a distinction between the 'Secured' and 'Unsecured Creditors' and observed that protecting creditors in general is, no doubt, an important objective. Protecting creditors from each other is also important. If an "equality for all" approach recognising the rights of different classes of creditors as part of an insolvency resolution process is adopted, secured financial creditors will, in many cases, be incentivised to vote for liquidation rather than resolution, as they would have better rights if the Corporate Debtor is liquidated. This would defeat the objective of the Code which is resolution of distressed assets and only if the same is not possible, should liquidation follow. The amended Regulation 38 does not lead to the conclusion that 'Financial Creditors' and 'Operational Creditors', or secured and unsecured creditors, must be paid the same amounts, perce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (AT) (Insolvency) No.1162 of 2023 - Sabari Realty Pvt. Ltd. vs. Sivana Realty Pvt. Ltd. & Ors. In the above case, Homebuyers were treated in two groups, i.e. 'affected' and 'unaffected'. Affected Homebuyers were those whose units were mortgaged, but allotment was made without taking consent of the Financial Creditor, to whom the units were mortgaged. The other category was those Homebuyers, who were allotted the units, after obtaining no objection from Financial Creditor, to whom the units were mortgaged. The Resolution Plan was approved treating them in two different categories, which was challenged before this Tribunal, on the ground that the treatment of Homebuyers, cannot be discriminated. This Tribunal in the above context held that treatment of Homebuyers in two categories as per the Resolution Plan, which was approved by the CoC, cannot be objected. This Tribunal also observed that reference has to be on fair and equitable treatment. It is useful to extract paragraphs 24, 25, 26 and 27 of the judgment, which are as follows: "24. The above judgment does not help the Appellant in the present case since in the above case the question was distribution of amount under the Reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same amount of their debt proportionately. Also, the fact that the operational creditors are given priority in payment over all financial creditors does not lead to the conclusion that such payment must necessarily be the same recovery percentage as financial creditors. So long as the provisions of the Code and the Regulations have been met, it is the commercial wisdom of the requisite majority of the Committee of 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." 26. What was emphasised in the judgment is that there shall be fair and equitable treatment in dealing dues of Operational Creditors and further there can be difference in payment to the Financial Creditor and the Operational Creditors. Hon'ble Supreme Court in the said judgment has held that commercial wisdom of the Committee of Creditors cannot be substituted. In Para 144 and 147 following has been held: "144. What is important to no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (b) (ii) and the amounts, which have been offered to dissenting Financial Creditors, is in accordance with the said provision. We, thus, are not persuaded to interfere with the order of the Adjudicating Authority, approving the Resolution Plan on the above ground raised by the Appellant. The Adjudicating Authority in the order dated 09.01.2022, has adverted to all relevant consideration on which Resolution Plan is to be checked for compliances of the statutory provisions and there is detailed consideration in the judgment. The Adjudicating Authority in paragraph-6 of the judgment has returned a finding regarding compliance of Sections 30(2)(a), 30(2)b), 30(2)(c), 30(2)(d), 30(2)(e) and 30(2)(f). The Adjudicating Authority has also adverted to the various Minutes of the CoC. We may only notice the observation of the Adjudicating Authority in paragraph-6 (f) and (j), which are as follows: "(f). Section 30(2)(f) of IBC read with Regulations 38 and 39 of CIRP Regulations: The key requirements under these provisions essentially speak to the feasibility and viability of the Plan and the capability of the RA. These aspects have been adequately dealt with in the Chart reproduced herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble Supreme Court in the matter of `India Resurgence ARC Pvt. Ltd.' Vs. `Amit Metaliks Ltd. & Anr.' reported in 2021 SCC OnLine SC 409. The Hon'ble Supreme Court in the above case has held that extent of the amount receivable by a dissenting Financial Creditor is provided in Section 30(2)(b). The argument that Financial Creditor is entitled to receive amounts as per security interest was rejected. In para 22 of the Judgment following was laid down: "22. The limitation on the extent of the amount receivable by a dissenting financial creditor is innate in Section 30(2)(b) of the Code and has been further exposited in the decisions aforesaid. It has not been the intent of the legislature that a security interest available to a dissenting financial creditor over the assets of the corporate debtor gives him some right over and above the other financial creditors so as to enforce the entire of the security interest and thereby bring about an inequitable scenario, by receiving excess amount, beyond the receivable liquidation value proposed for the same class of creditors." 50. Another Judgment which needs to be noticed is the Judgment of this Tribunal in the matter of `Edelweiss Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmitted claim. The distribution of the debt has to be as per the debt of the Financial Creditors. The 'debt' is defined in Section 3(11) of the IBC, which is as follows: "3(11) "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt;" 16. Section 3, sub-section (6) defines the 'claim', which claim is to be filed by a Financial Creditor as per Regulation 8, sub-section (1) of the CIRP Regulations, 2016. Thus, the scheme of Section 53, sub-section (1), clearly indicates distribution as per the debt and in the legislative scheme there is no scope of distribution of assets among the Financial Creditors as per security interest. The issue which has been raised by the Appellant, came for consideration before this Tribunal in Small Industries Development Bank of India vs. Vivek Raheja and Ors. where also the Appellant had claimed distribution of assets as per security interest. An IA was filed by the Appellant (SIDBI), seeking a direction to distribute as per security interest. In paragraph 2, following case of the SIDBI has been noticed: "2. Brief facts of the case giving rise to this Appeal are:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. App. (AT) (Ins.) No. 654/2022, `Paridhi Finvest Private Ltd.' Vs. `Value Infracon Buyers Association & Ors.'. In the above case also the Resolution Plan was sought to be challenged on the ground that Appellant was a Financial Creditor was entitled for higher amount. The submission of the Appellant that Appellant was entitled for payment as per security value of the Appellant was not accepted. In paragraph 12 of the Judgment following was held: "12. The Appellant's claim was admitted in the CIRP for Rs.1,86,00,000/- and it having vote share of 2.38%, it has been proposed an amount of Rs.1,00,00,000/-, which is more that the amount, which would have been payable to the Appellant in case the amount is paid as per priority under Section 53(1) of the IBC. The learned Counsel for the Appellant submits that the Appellant was entitled for amount as per security value of the Appellant. It having equitable mortgage of 30 units/ flats. It is well settled that the security holder cannot insist payment of amount as per security interest, when there is resolution of the Corporate Debtor through a Resolution Plan. In this context, we may refer to judgment of the Hon'ble Supreme Court in Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clear that it is the commercial wisdom of the Committee of Creditors that is free to determine what amounts be paid to different classes and sub- classes of creditors in accordance with the provisions of the Code and the Regulations made thereunder." ( emphasis supplied ) 17. Thus, what amount is to be paid to different classes or sub-classes of creditors in accordance with provisions of the Code and the related Regulations, is essentially the commercial wisdom of the Committee of Creditors; and a dissenting secured creditor like the appellant cannot suggest a higher amount to be paid to it with reference to the value of the security interest." 53. Learned Counsel for the Appellants have relied on the Judgment of the Hon'ble Supreme Court in `Vistara ITCL (India) Ltd. & Ors.' Vs. `Dinkar Venkatasubramanian & Anr.', (2023) 7 SCC 324. Judgment of the Hon'ble Supreme Court in `Vistara ITCL (India) Ltd. & Ors.' (Supra) was a case where Hon'ble Supreme Court has exercised its jurisdiction under Article 142 of the Constitution. In `Edelweiss Asset Reconstruction Company Ltd.' (Supra). The Judgment of the `Vistara ITCL (India) Ltd. & Ors.' (Supra) was noticed in detail and follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ARC (supra), which would entail reference to a larger bench. In the context of the present case, the said solution may not be viable as the resolution plan has already been approved by the CoC without Appellant No. 1 Vistra being a member of the CoC. Therefore, we would opt for the second option. The second option is to treat the Appellant No. 1 - Vistra as a secured creditor in terms of Section 52 read with Section 53 of the Code. In other words, we give the option to the successful resolution applicant - DVI (Deccan Value Investors) to treat the Appellant No. 1 - Vistra as a secured creditor, who will be entitled to retain the security interest in the pledged shares, and in terms thereof would be entitled to retain the security proceeds on the sale of the said pledged shares under Section 52 of the Code read with Rule 21A of the Liquidation Process Regulations. The second recourse available, would be almost equivalent in monetary terms for the Appellant No. 1 Vistra, who is treated it as a secured creditor and is held entitled to all rights and obligations as applicable to a secured creditor under Section 52 and 53 of the Code. This to our mind would be a fair and just solution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution of India. Distinctively, although the words employed under the two aforesaid provision speak of the powers of this Court, the former vest a plenary jurisdiction in supreme court in the matter of entertaining and hearing of appeals by granting special leave against any judgment or order made by a Court or Tribunal in any cause or matter. The powers are plenary to the extent that they are paramount to the limitations under the specific provisions for appeal contained in the Constitution or other laws. Article 142 of the Constitution of India, on the other hand is a step ahead of the powers envisaged under Article 136 of the Constitution of India. It is the exercise of jurisdiction to pass such enforceable decree or order as is necessary for doing 'complete justice' in any cause or matter. 11. Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vest a discretion in the Supreme Court to settle the law clear and as forthrightly forwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eplacement of Respondent No. 3 - Housing Development Finance Corporation Ltd. as HDFC Bank Ltd. Amended memo has been filed along with application. 57. I.A. Nos. 5442-5443, 5412, 5413 and 5449/2023, are allowed. Amended memo is taken on record. Let Respondent No. 3 be substituted with HDFC Bank Ltd. 58. The Debentures of the Corporate Debtor held by ICICI Prudential Venture Capital Fund Real Estate Scheme I has been transferred to Dev Rishi Ventures LLP. I.A. Nos. 1073-1074, 1069, 835 and 887/2024, have been filed in these Appeals praying for substitution of Dev Rishi Ventures LLP in place of ICICI Prudential Venture Capital Fund Real Estate Scheme I. Amended memo of parties have been filed along with the IAs. 59. All the aforesaid IAs are allowed and Dev Rishi Ventures LLP is permitted to be substituted in place of ICICI Prudential Venture Capital Fund Real Estate Scheme I. Amended memo of parties filed along with the applications are taken on record. 60. The Adjudicating Authority vide order dated 02.12.2022 has rejected the objections raised by the Appellants by I.A. Nos. 503, 931/2022 & 808/2022, raising objections to the Resolution Plan approved by the CoC on 27.12.2021. A ..... 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