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TMI Blog2024 (9) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shalini Basu, Advocates for SRA JUDGMENT ASHOK BHUSHAN, J. This Interlocutory Application by Applicant/ Appellant has been filed praying for following reliefs: "a. Allow the present Application, and/or; ..,., b. Pass an Order thereby setting aside the Impugned Order dated 4th January 2024 as passed by the Hon'ble National Company Law Tribunal, Kolkata in I.A. (IBC) No. 1054/KB/2023 and remand all the resolution plans back to the Committee of Creditors for fresh consideration; and/or c. Pass any such order that this Hon'ble Appellate Authority may deems fit and appropriate and in the interest of justice. 2. Company Appeal (AT) (Insolvency) No.281 of 2024 was filed by the Appellant challenging the order passed by National Company Law Tribunal, Kolkata Bench, (Court-II), Kolkata in IA (IB) No.10541 (KB)/ 2023 in CP(IB) No.302/(KB)/2021 dated 04.01.2024, by which order, application filed by Resolution Professional ("RP") for approval of Resolution Plan was allowed and Resolution Plan submitted by Respondent No.3, Shriram Multicom Pvt. Ltd. was approved. The Appellant, who was one of the Resolution Applicant. aggrieved by the order had filed the Appeal. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order. It is submitted by learned counsel appearing for the respondent that the contention raised in the written submission made were never actually argued. This contention will remain open." 4. After the aforesaid order dated 12.07.2024, the present Application being IA No.5691 of 2024 has been filed where the Applicant has prayed for relief as extracted above. 5. In the judgment of this Tribunal dated 29.02.2024, the submissions advanced by the learned Counsel for the Appellant have been noted in paragraph 3 of the judgment. Paragraph 3 of the judgment is as follows : "3. Learned Counsel for the Appellant challenging the Impugned Order submits that the resolution plan approved by the CoC is not in accordance with law. It is submitted that resolution plan submitted by the Appellant as revised through email sent on 23rd May, 2023 had offered higher offer of Rs. 310 Crores as compared to the resolution plan of Respondent No. 3 but the CoC did not consider the higher value offered by the Appellant and approved the Resolution Plan of Respondent No. 3. It is submitted that constitution of CoC is also under challenge as RARE Asset Reconstruction Limited filed an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Corporate Debtor's asset. It is submitted that the Applicant/ Appellant was not informed about the 4th to 9th floor also belong to the Corporate Debtor. Had the Appellant being made aware that 4th to 9th floor also belong to the Corporate Debtor, the Applicant/Appellant would have enhanced its financial offer. The learned Counsel for the Applicant/ Appellant has referred to paragraph 5 (n), (o) and (r) of the Application. It is useful to extract paragraph 5 (n), (o) and (r) of the Application, where following has been pleaded: "n. That pertinently, the aforesaid had specifically been pleaded as Questions of Law, relevant extract whereof is reproduced hereunder: ".... 8. (b) QUESTION OF LAW: ii. Whether the Resolution Plan submitted by the SRA was in accordance with the EOI issued by the Resolution Professional? ... " o. That in addition to being pleaded as Questions of Law, the Applicant had further agitated the aforesaid as Grounds in the Appeal, relevant extract whereof is reproduced hereunder 9. GROUNDS RAISED: "... BECAUSE the Ld. Appellate Tribunal failed to acknowledge that the failure of the RP to divulge about the inclusion of certain floors with co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assets are not contained in the Expression of Interest ("EoI"). EoI as issued under Regulation 36A is only required to specify CoC approved eligibility criteria, ineligibility norms and basic information about the Corporate Debtor for submission of EOI. It is submitted that Information Memorandum clearly mentioned about the commercial spaces of 4th to 9th floor. 12. The learned Counsel for the Applicant/Appellant during the course of submission has handed over a comparative note, containing three columns. First column relate to 'EOI'. Second column - 'Information Memorandum & VDR' and third column - 'Resolution Plan'. It is useful to extract comparative note given by learned Counsel for the Appellant during the course of submission, which is as follows : "EOI INFORMATION MEMORANDUM & VDR RESOLUTION PLAN * Incorporated in 2004, Sarga Hotel Private Limited (SHPL) is operating a five-star hotel under the name of The Westin Kolkata Rajarhat at New Town, Kolkata. * With 304 rooms and 16 suits, it's the biggest Westin in Eastern India. * 50,000 sq. ft banqueting spaces, 22,000 sq. ft of dedicated wellness space, a dedicated floor with * 6 meeting rooms, 5 restaurants, Car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2024, i.e., present IA has brought on record the copy of the Information Memorandum, which may indicate as to what information regarding the Corporate Debtor was contained in the Information Memorandum. However, the comparative note given by the Appellant itself makes it clear that in Information Memorandum assignment of 4th to 9th floor and commercial space, car parking space in two basements, common areas and facilities were mentioned to be assigned to one entity - Svayambhut Marketing Pvt. Ltd. 14. The ground made in the Application as noted above that Appellate tribunal failed to acknowledge that failure of the RP to divulge about the inclusion of certain floors with commercial spaces in the Corporate Debtor's assets, coupled with the absence of clarification regarding these crucial inclusions, indicates a procedural lapse and potential unfair advantage to Respondent No.3. 15. We have considered the submissions of learned Counsel for the parties and have perused the records. 16. The entire submission of the learned Counsel for the Applicant advanced as noted above, relates to, not divulging about the inclusion of certain floors with commercial spaces in the Corporate Debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself before this Tribunal. According to own disclosure of the Applicant/Appellant, as disclosed in the comparative note, there was specific mention of 4th to 9th floor as noted above. The Applicant/ Appellant was one of the Resolution Applicant and the Resolution Plan having been invited on "as is where is basis", it was for the Appellant/Applicant to make its due diligence before submitting the Resolution Plan. The Applicant/ Appellant having never asked for any clarification from the RP regarding any assets of the Corporate Debtor, it is not open to the Appellant/ Applicant to contend that RP did not divulge about details of the commercial spaces of the Corporate Debtor. 20. The learned Counsel for the Applicant/Appellant has placed reliance on the judgment of this Tribunal dated 21.12.2023 in Company Appeal (AT) (Insolvency) No.1688 of 2023 in Masatya Technologies Pvt. Ltd., Successful Resolution Applicant for Vistar Construction Pvt. Ltd. vs. Amit Agarwal, Resolution Professional for Vistar Construction Pvt. Ltd. & Anr. In the above case, this Tribunal has affirmed the order of Adjudicating Authority, by which while deciding an IA, the Adjudicating Authority directed for is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder the Adjudicating Authority while deciding I.A. No.363/ND/2023 has directed for issuance of fresh Form G, where the Appellant will also have liberty to submit EOI. The reason given by the Adjudicating Authority in the impugned order is that after issuance of Information Memorandum, under the orders of Delhi High Court dated 07.10.2021 and 01.06.2023 the amount of Rs.3,01,07,609/- along with 9% interest was replaced with properties (Unit Nos.901, 923 & 923A and 1022A on the 9th floor and 10th floor having covered area of 345 sq. ft.) located at Plot No.4, Dwarka City Centre, Sector-13, Dwarka, New Delhi, which shall be added in the assets of the Corporate Debtor. The Adjudicating Authority after noticing the aforesaid in Para 19, 20 and 21 has directed following: "19. Needless to say, the Prospective Resolution Applicants (PRAs) furnish their Resolution Plans based on the Information Memorandum (IM) prepared by the Resolution Professional, where a list of all the Assets of the Corporate Debtor is given. Since the properties situated at Dwarka (ibid) were a later discovery, they were not included in the Information Memorandum. Thus, the valuation of the newly inducted properti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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