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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 ..... Applicant/ Appellant has brought on record the Information Memorandum. The Information Memorandum and virtual room was shared with the Appellant by the RP, he being a Resolution Applicant. Entire Westin Hotel belong to the Corporate Debtor. With regard to 4th to 9th Floor, it was clearly mentioned in the Information Memorandum that SHPL have assigned it to Savyambhut Marketing Pvt. Ltd. Whatever stated in the Information Memorandum, the conclusion on such assignment was the matter for consideration of the SRA, who had to submit the Resolution Plan. The Resolution Plan for the Corporate Debtor was invited on as is where is basis and information was provided to all Resolution Applicants. Learned Counsel for the RP is right in his submission that it was for the Applicant/Appellant to seek any clarification, which it may require regarding the commercial space in the course of its due diligence of the Corporate Debtor. All Resolution Applicants were required to make their own due diligence and submit the Resolution Plan. The submission, which has been raised by the learned Counsel for the Applicant/Appellant that RP failed to divulge about the inclusion of certain floor with commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be heard by this Tribunal and by judgment and order dated 29.02.2024 passed by this Tribunal, the Appeal filed by the Appellant was dismissed. Aggrieved by the order dated 29.02.2024 passed by this Tribunal, a Civil Appeal No.6166 of 2024 was filed by the Appellant before the Hon ble Supreme Court. Before the Hon ble Supreme Court, a submission was advanced by the Appellant that certain contentions were specifically urged, which were not found to have been recorded in the impugned judgment. The Appellant sought leave of the Hon ble Supreme Court to withdraw the Appeal with liberty to file appropriate proceedings before the Appellate Tribunal. The Hon ble Supreme Court disposed of the Appeal as withdrawn with liberty to the Appellant to file appropriate application before the NCLAT. The order of the Hon ble Supreme Court dated 12.07.2024 is as follows: The learned Senior Counsel appearing for the appellant submitted that in the written submissions filed before the National Company Law Appellate Tribunal (NCLAT) before the impugned judgment was delivered, certain contentions were specifically urged which are not found to have been recorded in the impugned judgment. We find that in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending consideration. It is submitted that COC itself being not properly constituted, approval of the resolution plan cannot be valid. The Appellant has also filed an I.A. No. 1470 of 2023 seeking a direction to RP to place the resolution plan before the CoC to consider the revised resolution plan dated 23rd May, 2023 which application was illegally rejected by the Adjudicating Authority against which C.A.(AT) Ins. No. 1689 of 2023 has been filed by the Appellant. 6. Before the Hon ble Supreme Court, however, the Appellant contended that certain contentions, which were specifically urged, not found to have been recorded in the judgment. At the very outset, learned Counsel appearing for the Respondent, who was also the Counsel, who appeared in Company Appeal (AT) (Ins.) No. 281 of 2024 decided on 29.02.2024 submitted that the submission, which is now sought to be urged by the Appellant was never advanced at the time of hearing of this Appeal and the submissions, which were made by the Appellant were recorded in paragraph 3 of the judgment. The learned Counsel for the Respondent submits that before the Hon ble Supreme Court also at the time of hearing of the Civil Appeal, it was poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledge the ambiguity and vagueness in the Expression of Interest issued by the Resolution Professional/Respondent No. 1 that hindered potential resolution applicants from submitting an effective plans, thereby impeding the progress of the CJRP. The failure to provide clear and comprehensive descriptions of the concerned asset created uncertainty and deterred prospective bidders ... r. That upon the aforesaid matter being taken up on 13th February 2024, amongst other arguments it was argued that during the entire CIRP, the Resolution Professional had deliberately not issued any clarification in so far as the number of floors of Hotel Westin, belonging to the Corporate Debtor was concerned. Similarly, the Expression of Interest as well as the Information Memorandum was devoid of any details qua certain commercial spaces in the Hotel. It is only when the Resolution Plan of the SRA was approved, the Appellant gained the knowledge that certain floors below Hotel Westin, having commercial spaces are also being considered an asset of the Corporate Debtor. The same was however, not mentioned in the Expression of Interest or the Information Memorandum which was limited to rooms and suite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pace, a dedicated floor with 6 meeting rooms, 5 restaurants, Car Parking facility for up to 700 cars Assignment of 4th to 9th floor SHPL have assigned commercial space of building from 4th to 9th floor (measuring 8099.366 sq. mtrs), 97 car parking space in two basements and common areas facilities to Savyambhut Marketing Private Limited In terms of the information received from public domain, the SRA has included all floors, including 4th to 9th Floor of the Hotel. An Application had also been preferred by the SRA before NCLT, Kolkata being I.A. No.435 of 2024 stating that hindrances were being created in the server room situated at the 6th Floor of the Hotel building; Further, vide Order dated 5th March 2024 it was argued by the Promoter Group that floor 6th to 9th are in possession of one Swayamvut, where the share utility services and installation are located and, therefore, without impleading Swayamvut, the SRA cannot seek any order against the SIDCL. The aforesaid demonstrates how the SRA has taken over the aforesaid floors. 13. Learned Counsel for the Respondent submits that the comparative note, which is given to the Court by learned Counsel for the Applicant/Appellant itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Applicant/Appellant, clearly mentions following: Investment Rationale With 288 rooms and 16 suites, it s the biggest Westin in Eastern India; 50,000 sq. ft banqueting space, 22,000 sq. ft of dedicated wellness space, a dedicated floor with 6 meeting rooms, 5 restaurants, Car Parking facility for up to 700 cars Assignment of 4th to 9th floor SHPL have assigned commercial space of building from 4th to 9th floor (measuring 8099.366 sq. mtrs), 97 car parking space in two basements and common areas facilities to Savyambhut Marketing Private Limited 17. Entire Westin Hotel belong to the Corporate Debtor. With regard to 4th to 9th Floor, it was clearly mentioned in the Information Memorandum that SHPL have assigned it to Savyambhut Marketing Pvt. Ltd. Whatever stated in the Information Memorandum, the conclusion on such assignment was the matter for consideration of the SRA, who had to submit the Resolution Plan. The Resolution Plan for the Corporate Debtor was invited on as is where is basis and information was provided to all Resolution Applicants. Learned Counsel for the RP is right in his submission that it was for the Applicant/Appellant to seek any clarification, which it may req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration the fact that properties shall come to the kitty of the Corporate Debtor, as noted above, whose value is much more than the entire plan value submitted by the Resolution Applicant, hence, order was issued for issuance of Form G. We fully agree with the observation of the Adjudicating Authority as made in Para 19, 20 and 21 of the impugned order, as extracted above, which was sufficient reason for issuance of fresh Form G. However, we are of the view that some time ought to have been fixed by the Adjudicating Authority for completion of the entire process. We, thus, while affirming order of the Adjudicating Authority issue further direction in following manner: (i) The entire process including consideration of Resolution Plan shall be completed within a period of three months from today. 8. The present is not a case where the Adjudicating Authority has directed for any valuation of the assets of the Corporate Debtor. Present is a case where during the CIRP process under the orders of the High Court of Delhi properties worth value of approx. Rs.3 Crores have been added to the assets of the Corporate Debtor on basis of which the Adjudicating Authority took the view that f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Prospective Resolution Applicants to submit the Resolution Plan with higher value. 20. Further, through the present Resolution Plan, the ownership rights of the newly-inducted Dwarka Properties (ibid), which were never part of the Information Memorandum notified by the RP, are proposed to be transferred to the SRA herein, who would be in an advantageous position vis- -vis the prospective bidders in rem. In our considered view, this is a material irregularity in the exercise of the powers by the Resolution Professional during the CIR Process of the Corporate Debtor. 21. In the circumstances, we have no other option but (a) to reject the present Resolution Plan; (b) direct the Resolution Professional to conduct a fresh valuation of the Corporate Debtor's properties, inter alia, including the Unit no. 910, 923, 923A, and 1022A at 10th floor having covered area 345 Sq. Ft. forming part of the Hotel Building constructed at Plot No. 4, Dwarka City Centre, Sector-13, Dwarka, New Delhi and issue the Information Memorandum; (c) issue a fresh 'Form G' through a wide publication; and (d) complete the entire process of seeking approval of CoC, for the Resolution Plans if receive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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