9911796707
TMI Blog2024 (9) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... n (2) of the IBC. Thus, the jurisdiction with NCLT and Appellate Tribunal is limited to examine as to whether the Resolution Plan is in compliance with Section 30, sub-section (2), sub-clause (e) of the IBC. The part of the Resolution Plan being not in accordance with law, which has been approved by the Adjudicating Authority, the course open for this Tribunal is to either set aside the Resolution Plan or to delete the clauses, which are not in accordance with law to make the Resolution Plan compliant. The second course need to be adopted, by deleting the clauses in the Resolution Plan, which are contrary to the law, as per Section 30, sub-section (2), sub-clause (e), so as not to interfere with the other part of the Resolution Plan, which have been approved. The resolution plan modified partially. Application disposed off. - Company Appeal (AT) (Insolvency) No. 63 of 2024 Company Appeal (AT) (Insolvency) No. 1142 of 2023 I.A. No. 3986 of 2023 Company Appeal (AT) (Insolvency) No. 1307 of 2023 I.A. No. 4619, 4620 of 2023 Company Appeal (AT) (Insolvency) No. 1308 of 2023 I.A. No. 4625, 4627 of 2023 Company Appeal (AT) (Insolvency) No. 1223 of 2023 I.A. No. 4303 of 2023 Company Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Group-II - (Homebuyers) (1) Company Appeal (AT) (Insolvency) No. 1361 of 2023 - Jiten S. Gada Ors. (2) Company Appeal (AT) (Insolvency) No. 1385 of 2023 - Viraj Sham Jadhav (Homebuyers) (3) Company Appeal (AT) (Insolvency) No. 1050 of 2023 - Piyuja Suresh Singhvi Anr. (4) Company Appeal (AT) (Insolvency) No. 1051 of 2023 Priyash Suresh Singhvi Anr. (5) Company Appeal (AT) (Insolvency) No. 1660 of 2023 - Bharat Vitthal Jadhav Ors. Group-III (1) Company Appeal (AT) (Insolvency) No. 1223 of 2023 - Sri Umiyaa Construction Pvt. Ltd. Ors. (Operational Creditor); (2) Company Appeal (AT) (Insolvency) No. 1226 of 2023 - Dhanaji Mohan Nikam Ors. (Employees) 3. Before we notice facts and pleadings in above Appeal(s), it is necessary to notice certain facts with regard to DSK Group, which consists of the Corporate Debtor D.S. Kulkarni Developers Ltd. and other Group Entities, partnership firms, engaged in different business, primarily real estate development. The CIRP proceedings culminated into the Resolution Plan, which has been approved by the impugned order dated 23.06.2023. There has been several proceedings including the proceedings under Prevention of Money Laundering Act, 2002 (hereina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was subject to various conditions as per provisions of Mumbai Tenancy and Agricultural Act, 1948. The Corporate Debtor also obtained approval for constructing of SEZ Project from Government of India, Ministry of Commerce and Industry on 26.07.2007 with various conditions. As per the conditions, the Corporate Debtor has to comply the conditions within a stipulated period to obtain final permission for setting up SEZ Project, failing which, Corporate Debtor would have to return the land to same agriculturist at the same price and further it was obligated to purchase huge land within two years from the date of order and has to purchase land from the agriculturist on market price with full willingness of the land owner. On Corporate Debtor having failed to receive an SEZ approval/ final notification, permission was to be automatically cancelled. Due to stringent conditions for obtaining the final SEZ permission, Deepak Sakharam Kulkarni and Hemanti Deepak Kulkarni to minimize the risk of losses to Corporate Debtor, purchased the land through their Partnership Firm and/or through their relatives. The Corporate Debtor started purchasing land through D.S. Kulkarni Co. and its relative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d DSK Group of Companies and others. Based on above, a case was registered under MPED Act, 1999. A Provisional Attachment Order dated 14.02.2019 was passed by Deputy Director, Enforcement Directorate Mumbai Zonal Office with respect to immovable properties and movable properties against the Corporate Debtor, Promoters and other Group Companies and the same were attached. A complaint came to be filed before the Adjudicating Authority under the PMLA against Deepak Sakharam Kulkarni, Hemanti Deepak Kulkarni and Shirish Deepak Kulkarani also against D.S. Kulkarni Co., D.S. Kulkarni Associates and other DSK Group partnership Firms and entities. Notices were issued in the proceedings. Statements of Deepak Sakharam Kulkarni, Hemanti Deepak Kulkarni were also recorded. In proceedings under PMLA, by an order dated 05.08.2019, the Provisional Attachment Order was confirmed by the Adjudicating Authority. 7. Bank of Maharashtra filed an Application under Section 7 against the Corporate Debtor and by order dated 26.09.2019, CIRP against the Corporate Debtor commenced. It is to be noted that prior to initiation of CIRP against the Corporate Debtor, Deepak Sakharam Kulkarni and Hemanti Deepak Kul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Homebuyers have challenged subsequent order dated 01.08.2023. We have already noticed above that Promoters as well as their Group Entities, Operational Creditors and employees have also filed the Appeal(s), as noted above, challenging the approval of Resolution Plan dated 23.06.2023. 10. We have heard the above Appeals on different dates, but since the Appeal(s) are filed against the orders dated 23.06.2023 and 01.08.2023, we are deciding these Appeal(s) by this common judgment. 11. After having noticed the brief background facts, now we proceed to notice facts and pleadings in each Appeal. 12. We now proceed to notice the individual facts and prayers made in each of the above appeals. As noticed above Group I consists of four appeals, we proceed to notice details in each appeals separately. Comp. App. (AT) (Ins.) No. 63/2024 13. This appeal has been filed by Deepak Sakharam Kulkarni and Smt.Hemanti Deepak Kulkarni challenging the order dated 23.06.2023 passed in I.A. No.1950/2021, approving the Resolution Plan submitted by Respondents No. 2 to 4. 14. Appellant s case in the appeal is that upon various complaints received from few depositors of the Corporate Debtor, variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... li, District Pune, being survey No. 326/1 has been included, which do not belong to the Corporate Debtor. 18. It is the case of the Appellant that properties of promoters cannot be included in the Resolution Plan. It is the case of the Appellant that under Sections 18 25, IRP can take possession of assets of the Corporate Debtor only. 19. Appellant s further case is that the assets having been attached under the PMLA Act, 2005, prior to commencement of CIRP cannot be made the subject matter of the Resolution Plan. The order passed by the Adjudicating Authority, PMLA dated 06.08.2019 cannot be eclipsed by operation of provisions of Section 14 of the Code, inclusion of the said assets makes the Resolution Plan not in compliance of law. It is further stated that Appellant had filed, after coming to know about the facts and after being released from prison, an I.A. No. 2423 of 2023 before the Adjudicating Authority, which application was kept pending and Resolution Plan was approved by the Adjudicating Authority on 23.06.2023. 20. In the appeal, Appellant has prayed for setting aside the order dated 23.06.2023, passed by the Adjudicating Authority in I.A. No.1950/2023. Comp. App. (AT) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing Survey No. 48, Hissa No. lA and Land Bearing Survey No. 44, Hissa No. 7 /1 at Fursungi is annexed herewith and marked as ANNEXURE A-8 . 7 .3. The Appellant was arrested on 25.06.2018 as he surrendered in the Ld trial court upon directions of the Hon'ble Apex Court and thereafter, was finally released from Yerawada Central Prison, Pune on 06.03.2023. Thus, the Appellant never had access to any of the documentation being prepared or drawn by the Resolution Professional. Copy of the document proving the date of arrest and release of the Appellant is annexed herewith and marked as ANNEXURE A-9 (Colly). 23. Appellant s further case is that with regard to above land, there is no written contract between the Appellant and the Corporate Debtor and there is no contract between Appellant and any of the Financial Creditors and further said properties are mortgaged in favour of Toyota Financial Services India Ltd. in respect of loan given to DSK Motors Private Limited. It is further submitted that proceeding under Section 95 has also been initiated against the Appellant as State Bank of India (SBI) being C.P. IB No. 199 (MB)/2021 which proceedings are still pending. The case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property has been illegally dealt with, which Resolution Plan did not deserve the approval by the Adjudicating Authority. 28. Partners of the Appellant being in jail till 09.03.2023 and 18.11.2022 respectively, they had never any access of any documentation being prepared or plan of the Resolution Professional. The RP without access to all relevant documents and without obtaining relevant documents have placed the Resolution Plan before the CoC for approval. Appellant have also prayed for setting aside the order dated 23.06.2023. Comp. App. (AT) (Ins.) No. 1308/2023 29. The Appellant is a Company registered under the Companies Act 1956, DS Kulkarni Developers Limited, the Corporate Debtor, by Lease Deed dated 24.09.2008 leased out land as mentioned in Schedule 1 to Schedule 4 of the Lease Deed. The lease was taken by the Appellant for commencement of school for professional courses for animation and industrial design. Lease of land for 19 acres for 99 years for the yearly rent of Rs. 1 Crore. Lessee was at liberty to mortgage the land in favour of Financial Institution Banks for obtaining of financial/loans for construction of building/structures. The Appellant has taken facility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted their claim before the RP in October 2019 under the category allotment letter holders as Financial Creditors . The RP however, proceeded to reject the claim on 25.05.2021, solely on the ground that said claims were based only on allotment letters and there are no proof of payments made to Corporate Debtor. 33. With regard to Appellants, the list of Creditors was published by the RP as on 25.05.2021, in which list although claims submitted by the Appellants were noticed, but claim was rejected with respect to Appellants. With regard to Bharat Jhadav and others, following was mentioned in the list of rejecting the claim claim rejected as claim is based on just allotment letter and no other supporting documents provided and amount is also not received in Books of Corporate Debtor . 34. Appellant after the rejection of their claim filed an I.A. No. 1844/2021, which was filed on behalf of Association of Allotment Letter Holders titled as DSK Anandghan (Allotment Letter Holders through its Authorised Representative Bharat Jadhav) seeking a direction to admit their claim. In the application, details of the Flat No. total consideration of Flat, total amount paid and allotment date ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Development Agreement dated 31.12.2013 was entered between the Corporate Debtor as a developer, acquiring development rights from DSK Global Education and Research Ltd. with respect to property situated at Kirkatwadi, Taluka Haveli, District Pune. In the year 2015, Appellant No. 2 has advanced certain monies as loans to DSK Kulkarni and Company. Appellant s case is that payments made to DSK Kulkarni and Company are reflected in the Bank Statement of HDFC Bank. It is pleaded that in the year 2015, Directors/Partners Shareholders of Corporate Debtor and DS Kulkarni Company were the same person and management and affairs of the Corporate Debtor as well as DS Kulkarni Co. were controlled and conducted by same person. In the year 2017, Corporate Debtor decided to take over the liabilities of DS Kulkarni and Company accordingly adjusted the loan of Appellant No. 2 advanced to DS Kulkarni Company and executed a registered Agreement dated 30.06.2017 for a Flat bearing No. 201 in G Wing on 2nd Floor in the project DSK Vishwa Ph-VI, Anandghan. The Corporate Debtor in the capacity of developer and DSK Global Education Research Limited as land owner, executed registered Tripartite Agreement d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6th Floor of Project DSK Vishwa Ph-VI, Anandghan was executed in favour of the Appellant. The registered Tripartite Agreement was executed with the Appellant as purchaser wherein DSK Global Education Research Ltd. as land owners and Corporate Debtor as developer. By a general entry dated 30.06.2017, the loan advanced by Appellant to DS Kulkarni and Company was adjusted. The Appellant further made payment of VAT and service tax as well as Stamp Duty on registration charge. In the application filed by the Corporate Debtor through the Maharashtra RERA in July 2017, details of Flats sold in G Wing including the name of the Appellant was also mentioned. After admission of CIRP on 26.09.2023, when the Appellant came to know about the CIRP, they filed their claim on 31.03.2023, which was rejected by RP on the ground of delay. I.A. No. 2114/2023 was filed by the Appellant before the Adjudicating Authority which claimed to be dismissed on 22.11.2023 against which Comp. App. (AT) (Ins) No. 192/2024, was filed by the Appellant which was dismissed by this Tribunal on 21.02.2024. The present appeal has been filed by the Appellant challenging the order dated 23.06.2023, approving the Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon ble National Company Law Tribunal, Mumbai Bench, Kolkata in the application filed under Section 60(5) of the IBC, 2016 being I.A. No. 2157/2021 in C.P. (IB) No. 1633/MB/2019; and/or ii. To direct Resolution Professional/ Respondent No. 1 or Successful Resolution Applicant/ Respondent No. 3 to register sale deed/agreement to sale of the units of the Appellants in the Madhukosh Project of the Corporate Debtor; and/or iii. To direct Resolution Professional/Respondent No.1 to consider claims of the Appellants as submitted or pleaded before the Hon ble NCLT; iv. To direct Hon ble NCLT, Mumbai Bench to rehear the matter and pass an order after hearing both side and considering all the facts and documents on records including orders of RERA; Comp. App. (AT) (Ins.) No. 1385/2023 45. The facts and the pleadings in this appeal is same as by the Appellant in Comp. App. (AT) (Ins.) No.1361/2023. 46. The Appellant was also one of the applicants in I.A. No. 2157/2021 filed before the Adjudicating Authority questioning the action of the RP in not executing the sale deed and rejecting the claim of the Appellant. I.A. No. 2157/2021 was listed on various dates before the Adjudicating Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondents No. 2 to 4. 51. Appellant s case is that subsequent to the initiation of CIRP on 26.09.2019, Appellant filed their claim before the Resolution Professional, which after verification was admitted by the RP in its entirety. Details of claims filed by the Appellants and claim admitted and the amount received under the Plan has been tabulated in para 7.3 of the appeal, which is as follows : Sr. No. Particulars Claim Submitted Claim Admitted Amount Received % of Amount Received 1. Sri Umiyaa Construction Private Limited 7,43,11,257/- 7,43,11,257/- 2,73,831/- 0.368% 2. Aryan Images 60,94,930/- 60,94,930/- 22,429/- 0.368% 3. Cosmos Construction Machinery and Equipment Private Limited 54,46,997/- 54,46,997/- 20,781/- 0.368% 4. Nikhil Transport Company 55,48,330/- 55,48,330/- 20,418/- 0.368% 5. Atharva Events 37,23,992/- 37,23,992/- 13,704/- 0.368% 52. Appellants grievance in the appeal is that impugned order has failed to correctly consider the market value of the assets of the Corporate Debtor, which has been severely undervalued to accommodate the Resolution Plan of the SRA and deprive the various Creditors including the Appellants of their admitted dues. The commercial wisdo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal. Company Appeal (AT) (Insolvency) No. 63 of 2024 - Deepak Sakharam Kulkarni Anr. Vs Manoj Kumar Agarwal, Resolution Professional of D.S. Kulkarni Developers Ltd. Ors. 59. We have heard Shri Krishnendu Datta, learned Senior Counsel appearing for the Appellant; Shri Abhijeet Sinha, learned Senior Counsel appearing for the RP; and Shri Neeraj Kishan Kaul and Shri Arvind Nayar, learned Senior Counsel appearing for the Successful Resolution Applicant. 60. Shri Krishnendu Datta, learned Senior Counsel in support of the Appeal, submits that CIRP process conducted by the RP and the CoC is in violation of the provisions of the IBC and the CIRP Regulations, 2016. It is submitted that CIRP of the Corporate Debtor came to an end on 13.06.2021, after extension and exclusion by the Adjudicating Authority.The Resolution Plan, which was submitted by SRA on 02.07.2021, was after expiry of the CIRP period. The Resolution Plans were revised and final Resolution Plan was submitted on 29.07.2021, which was approved by the CoC on 13.08.2021, i.e., subsequent to the expiry of the CIRP period, which ended on 13.06.2021. The learned Counsel for the Appellant has referred to Form-H, which has been noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fair value of parcel of land @ Rs.2.51 Crores per acre, whereas as per the ready reckoner at value of @ Rs.3.14 crores per acre was to be taken. There has been several other discrepancy in value of the different projects of the Corporate Debtor. The work completed has not been correctly measured. With regard to Bavdhan land of the Corporate Debtor, which is shown as only 6.27 acres of land, whereas Valuer one has measured the land parcel of 89.66 acres, whereas Valuer two has not even valued the said parcel of land stating that the said land has been sold to third party. No objection was raised by the RP to the above discrepancies in the Report of the Valuers, nor attention of CoC was invited. The Resolution Plan has included 89.66 acres of land at Bavdhan, which was not the property of the assets of the Corporate Debtor. Audited Financial Report mentions value of the assets of the Corporate Debtor as Rs.1906 crores. Several items of the property were not included by the Valuers and several assets, which does not pertain to the Corporate Debtor has been included, making both the Valuation Report faulty and unacceptable. The Plan suffers from material irregularity and does not comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional affidavit, valuation is sought to be challenged by the Appellant. The Valuation Report, as obtained by the Appellant is only for the purpose of the case, which valuation does not include liabilities of the Corporate Debtor. The RP in Financial Statement has mentioned the assets of the CD as Rs.1906 crores and has also mentioned the liabilities of Rs.1600 crores. The CD has abandoned the Projects as well as the land and it is the SRA, who has to deal and develop the Project. The development potential of the CD is for SRA to consider. 63. Shri Krishnendu Datta, learned Senior Counsel making submissions in his rejoinder submits that the Appellant has the locus to file the Appeal. The Appellant Promoter has right to receive the Resolution Plan. It is submitted that there is no order of extension of CIRP and submission to the contrary advanced by the Counsel for the Respondent is incorrect. It is submitted that commercial wisdom of CoC, cannot be justified when process is arbitrary. The law gives right to question the Plan. The Appellant is not relying on 2023 Valuation Report. The submission of the Appellant was that RP ignored the assets, which were part of the CD s asset. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... futing the submission of the Appellant, submits that land which is claimed by the Appellant by virtue of above Gift Deeds, were all land belonging to the Corporate Debtor and purchased from the consideration of the Corporate Debtor. It is submitted that the above land, which have been gifted to the Appellant were the land purchased by different Members of the family, directly from farmers, for which the consideration was paid to family Members by Hemanti Deepak Kulkarani and out of the said consideration, the individual family Members have purchased the land from farmers directly. Purchase by family Members of the Deepak Sakharam Kulkarni were all on the basis of money received from the Corporate Debtor/ its sister companies. Hence, the land did not belong to the individual family Members in whose name Sale Deeds were purchased. When individual family Members were not the rightful owner of the assets, they have no right to gift the assets to the Appellant. Further, the entire land covered by the Gift Deed is part of the integrated township project and included in the order issued by the Collector, granting permission of township, hence, it is not open for the Appellant to now claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of IBC to support his submission. It is submitted that Provisional Attachment Order issued by the Enforcement Directorate cannot be considered as source of title of the property. The ownership assets of third party whether related or not, cannot be extinguished through Resolution Plan. It is submitted that liabilities in respect of said properties not being taken over even the assets cannot be taken over. Shri Sandeep Bajaj, further submits that challenging the order passed by this Tribunal, affirming the rejection of the claim of the Appellant, Civil Appeal No.4354 of 2024 was filed by the Appellant, which Appeal was dismissed on 01.04.2024 clarifying that order dated 01.04.2024 in no way affect the rights of third party, if any, in proceedings before the NCLT and NCLAT or before Hon ble Supreme Court. 72. Shri Abhijeet Sinha, learned Senior Counsel for the RP submits that property S. No.326/1 was considered as part of the assets of the Corporate Debtor as the same was specified in the schedule of the Provisional Attachment Order dated 14.02.2019 passed by Enforcement Directorate. It is submitted that the Appellant or its Promoters have never approached the RP to raise its grieva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RP; and Shri Arvind Nayar, learned Senior Counsel appearing for SRA. 75. Shri Sandeep Bajaj submits that lease was executed in favour of the Appellant by the Corporate Debtor dated 24.09.2008, by which Lease Deed executed for 99 years, the Corporate Debtor has leased 19 acres land situated at Village Fursungi , Taluka Haveli, District Pune with granting lessee right to construct buildings and structures. The Appellant has constructed educational institution after taking facility from Central Bank of India of Rs.100 crores. The Resolution Plan contemplates extinguishment of rights of the Appellant in the building, which was constructed on the lease land. The lease provided that the for terminating the lease, the CD was required to assess the building and make payment spent towards construction. The ownership of building is of the Appellant. Under Section 18, the RP cannot take the assets of subsidiary company. The CD or RP never terminated the lease. The Appellant has paid rentals and even if any rental is due, it could have been adjusted. The Appellant has not filed its claim, since it had not arisen. The claim of the Appellant, would only arise when CD terminate the lease. The Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by the Corporate Debtor and its sister concern- DSK Global Education and Research Limited . After initiation of CIRP, Appellants filed their claims under the category of allotment letter holders in October 2019. However, the same came to be rejected by the Resolution Professional on 25.05.2021 on the ground that no proof of payments to the Corporate Debtor has been filed by the Appellants. It is submitted that the Corporate Debtor having acknowledged the payments by the Appellants, there was no occasion for the Resolution Professional not to accept the payments. The list of creditors published by the Resolution Professional on 25.05.2021 mentioned reason for rejection of the claim and the only reason was that Appellants had not submitted proof of payment to the Corporate Debtor. It is submitted that the Appellants have filed their IA No.1844 of 2021 before the Adjudicating Authority on 06.08.2021 questioning the decision of Resolution Professional which application remains pending before the Adjudicating Authority and was never decided before approval of the Resolution Plan. It was only on 01.08.2023 that application was rejected as infructuous. When application has questioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Appeal (AT) (Insolvency) No.1053 of 2023:- 83. We have heard Shri Chaitanya Nikte, Learned Counsel for the Appellant, Shri Abhijeet Sinha, Learned Senior Counsel for the Resolution Professional and Shri Arvind Nayar, Learned Senior Counsel for the Successful Resolution Applicant. 84. Submissions advanced by Counsel for the Appellants in both the above appeals being similar are noticed together. 85. Counsel for the Appellants submits that the Appellants have paid amount to sister concern which amount was acknowledged and adjusted towards consideration of flat at the time of adjustment. Corporate Debtor admittedly took money in its account towards Stamp Duty, Registration, Service Tax and VAT. Appellants in support of his submissions referred to ledger filed along with the appeals. In the RERA disclosures made by the Corporate Debtor the flat allotted to the Appellants were sold. It is submitted that a Tripartite Agreement was entered between the Appellants, Corporate Debtor and its sister concern dated 30.06.2017 allotting the flats to the Appellants in the Project- DSK Vishwa . The Corporate Debtor who was a developer has acquired development rights in the land mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor. Resolution Professional has appointed Independent Forensic Auditor to carry out transaction. Erstwhile promoters of the Corporate Debtor have entered into agreement with homebuyers but no money has been paid to the Corporate Debtor. 87. Counsel for the Successful Resolution Applicant submits that the appeal filed by the Appellants having been dismissed by order dated 21.02.2024 where the Appellants have challenged the order of the NCLT dated 22.11.2023 rejecting their applications, the Appellants have no locus to file these appeals. In the order dated 21.02.2024 passed by this Tribunal rejection of the claim of the Appellants has been upheld. It is submitted that the Appellants have not made any challenge to the Resolution Plan before the Adjudicating Authority now they cannot be allowed to challenge the Resolution Plan. Appellants cannot be held to be homebuyers. Appellants have filed their claims before the Resolution Professional with great delay. They having filed claims only in March 2023 i.e. after the order was reserved in the plan approval application, Adjudicating Authority has rightly rejected their claims. Company Appeal (AT) (Insolvency) No. 1361 of 2023 Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating Authority has passed earlier orders that plan approval application shall be heard after all applications are decided. However, departing from its earlier order passed by the Adjudicating Authority, Adjudicating Authority proceeded to approve the Resolution Plan on 23.06.2023 and kept the application of the Appellants pending which action of the Adjudicating Authority is contrary to its own order and unsustainable. Appellants who have paid the total consideration and are in possession of their flats, they cannot be given a treatment as has been given by the Resolution Professional and the Adjudicating Authority. The action of the Resolution Professional in rejecting the claim is wholly uncalled for and unjustified. After receiving the claims by the Appellants, Resolution Professional has sent an e-mail to the Appellants where it was noticed that the Appellants are in possession of the flats. In IA No.2157 of 2021, reply was also filed in which Resolution Professional has reiterated its stand that amount having not been received in the account of the Corporate Debtor, the claim cannot be admitted. 91. Counsel for the Resolution Professional replying the submissions of the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the CoC and subsequent approval by the Adjudicating Authority is against settled position of law. Adjudicating Authority has failed to consider the object of the Code namely value maximisation of the assets of the Corporate Debtor and protection of the interest of all stakeholders of the Corporate Debtor. Respondents have failed to protect the interest of the Appellants Receivables due to the Corporate Debtor are more than Rs.200 Crores and the Successful Resolution Applicant s proposal to make payment of Rs.866 Crores within seven years defeats logic and commercial wisdom. The value of the Corporate Debtor is approximately six times the amount proposed to be paid by the Successful Resolution Applicant under the Resolution Plan. 96. Counsel for the Successful Resolution Applicant submits that the Appellants being Operational Creditors are not entitled to be paid any amount beyond their entitlement under Section 30(2)(b) of the IBC. Appellants did not take any measure to contest the Resolution Plan before the Adjudicating Authority. They failed to file any objection before the Adjudicating Authority. Appellants have no locus standi to challenge the approval of the Resolution Plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned senior Counsel contended that the last date of CIRP came to an end on 13.06.2021 after expiry of the extension period. It is submitted in Form H which was filed by RP, 13.06.2021 was also mentioned as last date on which CIRP expired. It is submitted that although in the Form H it was noticed that an application for extension was pending but no orders were passed for extension of CIRP, CIRP period came to an end. 102. Learned Counsel for the Respondent refuting the above submissions has placed before the Court the copy of the order dated 11.01.2022 passed by the Adjudicating Authority in I.A. No. 2017/2021 and the order dated 20.06.2022 passed in I.A. No. 1563/2022. 103. We now proceed to consider the grounds as urged by the Counsel for the Appellant. The Resolution Plan was approved by the CoC on 13.08.2021 and thereafter RP filed the application before the Adjudicating Authority on 18.02.2022 along with Form H. Form H, which was filed by RP has been extracted by the Adjudicating Authority in Paragraph 14 of the impugned order. Column Nos. 13 to 17 of Form H which is relevant for the present purpose is as follows: FORM H COMPLIANCE CERTIFICATE (Under Regulation 39(4) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Resolution Process (CIRP) period. This Bench vide order dated 24.03.2021 had allowed the exclusion for period of 24.03.2020 to 23.03.2021 for one year. The present Application now seeks exclusion from 24.03.2021 to 22.05.2021. This Bench allows the exclusion of 60 days from the CIRP period. Accordingly, IA 2017/2021 is allowed and disposed of . 106. Subsequently, an application was filed by the RP being I.A. No. 1563/2022 for rectification of the order dated 11.01.2022, where it was prayed that another 2 days time be allowed to complete the Resolution Process. The Adjudicating Authority while noticing the order dated 11.01.2022 has noticed that exclusion of time was granted extending the CIRP period till 24.08.2021. Adjudicating Authority vide order dated 20.06.2022 granted exclusion of two more days time i.e., from 22.05.2021 till 24.05.2021. The order dated 20.06.2022 is as follows: IA 1563/2022 This is an Application filed by the Applicant, Mr. Manoj Kumar Agrawal, RP of the Corporate Debtor, seeking rectification of order dt. 11.01.2022, whereby exclusion of time was granted w.e.f. 24.05.2021, extending the CIRP period till 24.08.2021. Counsel appearing for the Applicant subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h. Krishnendu Dutta, learned Sr. Counsel for the Appellant questioning the valuation of the Corporate Debtor as obtained by the RP. Appellant submits that RP did not have relevant records of the Corporate Debtor and the Appellant being behind the prison could not give any documents or assistance to the RP leading the RP to obtain valuation of the assets on incomplete information which lead valuation of the assets which is not the correct valuation and is much lower than the correct valuation of the assets of the Corporate Debtor. It is further submitted that in the financial statements prepared by the RP assets of the Corporate Debtor were valued as Rs. 1,906 crores, whereas two valuers pointed out by RP gave much lower valuation. 111. It is on the record that in the Meeting of the CoC held on 08.11.2019 two registered valuers were appointed. The RP issued letter to the two valuers, namely Puneet Tyagi and Deepak Bansal to value the land and building of the Corporate Debtor. Appellant by Additional Affidavit dated 29.02.2024 has brought on the record Valuation Reports Submitted by both the valuers. Valuation Report was submitted by Puneet Tyagi dated 22.10.2020 and the Addendum Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 91,46,000 68,59,000 I have incorporated the valuation of land and building development and the updated final summary can be read as follows : S No. Properties Fair Value (INR) Liquidation Value (INR) 1 Property 01: Dream City 5,40,04,59,456 3,74,30,55,674 2 Property 02: DSK Nandanvan 13,04,42,627 9,13,09,839 3 Property 03: DSK Mayurban 19,42,26,699 13,59,58,689 4 Property 04: DSK Goldleaf 7,51,85,214 5,26,29,650 5 Property 05: Land at Balewadi 75,24,02,039 52,66,81,427 6 Property 06: DSK Anandghan 67,18,51,245 47,02,95,872 7 Property 07: DSK Meghmalhar Flats 9,99,46,000 7,88,83,200 8 Property 08: DSK Madhukosh 48,04,91,434 33,63,44,004 9 Property 09: Land at Bavdhan 5,82,79,000 7,07,95,300 10 Property 11: DSK Chandrdeep Flat 2 11,90,000 1,69,52,000 11 Property 12: Land Building in Survey No. 125, Hissa No. 1 to 4+8/56, Village- Dhayari, Taluka- Haveli, Pune 9,87,46,000 7,85,39,000 Total 7,98,32,19,714 5,57,14,44,655 Total (Round Off 798 Cr 557 Cr Hope you will find everything in order; feel free to contact if you have any further query. Best Regards Puneet Tyagi, Director, Dated: June 23,2021 112. Another valuer Sh. Deepak Bansal who in its Report dated.06.10.2020 has noticed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Report submitted by above two valuers, several properties which does not belong to the Corporate Debtor has been valued whereas some properties which ought to have been valued has been left out for the valuation. Learned Counsel has further submitted that there is variance in the area of the assets taken by both the valuers. 114. Learned Counsel for the Appellant has referred to Notification dated 11.09.2014 issued by Urban Development Department Mantralaya, Mumbai, under which in Schedule A, details of the land area notified for Special Township Project of M/s. DS Kulkarni Developers Limited is mentioned total is equivalent to 241.6 acres of land, whereas Mr. Puneet Tyagi the first valuer has measured only 218.6 acres of land and another valuer Mr. Deepak Bansal has measured only 233 acres thus there is a glaring difference between taking correct area of the valuation. 115. The Valuation Report of Puneet Tyagi has been brought on record by the Appellant itself as the Township Project has been referred to as Property No. 1 and area 218.6 acres have been taken. The Report submitted by valuer is a detailed Report containing the details as to how the valuers have valued the assets, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate Debtor, which mechanism was followed by the RP. The Valuation Report having not been objected by any Member of the CoC and all proceeded to evaluate the Resolution Plan as per valuation, we at the instance of the promoters of the Corporate Debtor are not inclined to entertain objections raised regarding the Valuation Reports submitted by the expert valuers. 120. Learned Counsel for the SRA has placed reliance on the Judgment of the Hon ble Supreme Court as well as this Tribunal to support his submission that question of valuation cannot be allowed to be raised. 121. Counsel for the SRA has placed reliance on the Judgment of the Hon ble Supreme Court reported in (2024) 2 SCC 122 in the matter of `Ramkrishna Forgings Ltd. Vs. `Acil Ltd. (Resolution Professional) . In the above case, Adjudicating Authority on an application seeking approval of the Resolution Plan directed the application to be kept in abeyance and directed the official liquidator to carry out the revaluation of the assets of the Corporate Debtor and provides the exact figures of value of the assets and exact valuation, the facts have been noticed in Paragraph 1 of the Judgment, which is as follows: 1. Heard the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and conclusion 30. Having considered the matter in depth, the Court is unable to uphold the decisions rendered by the adjudicating authority NCLT as also Nclat. The moot question involved is the extent of the jurisdiction and powers of the adjudicating authority to go on the issue of revaluation in the background of the admitted and undisputed factual position that no objection was raised by any quarter with regard to any deficiency/irregularity, either by the RP or the appellant or the CoC, in finally approving the resolution plan which was sent to the adjudicating authority NCLT for approval. Further, the statutory requirement of the RP involving two approved valuers for giving reports apropos fair market value and liquidation value was duly complied with and the figures in both reports were not at great variance. Significantly, the same were then put up before the CoC, which is the decision-maker and in the driver's seat, so to say, of the corporate debtor. 123. Ultimately, the Hon ble Supreme Court allowed the appeal, set aside both the orders and directed the Adjudicating Authority to pass order on the Plan approval application. 124. Learned Counsel for the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approved the resolution plan on cogent ground(s) relevant for doing so after testing whether it complies with the requirements of Section 30(2) of the Code, but it could not have acquired jurisdiction, where no such residuary or equity based jurisdiction is available under the Code by interfering with the CoC's decision without pointing out any non-conformity with the provisions of the Code and the Regulations thereunder. 9 . For such proposition, Mr Divan relied upon the decision of this Court in Pratap Technocrats (P) Ltd. v. Reliance Infratel Ltd. (Monitoring Committee) [Pratap Technocrats (P) Ltd. v. Reliance Infratel Ltd. (Monitoring Committee), (2021) 10 SCC 623 : (2022) 1 SCC (Civ) 80] , the relevant being at paras 25, 26 and 44, wherein it has been held that the jurisdiction conferred upon the adjudicating authority NCLT in regard to the approval of a resolution plan is statutorily structured by sub-section (1) of Section 31 of the Code and such jurisdiction is limited to determine whether the requirements which are specified in sub-section (2) of Section 30 of the Code have been fulfilled. Further, it has been explained that such jurisdiction which is statutorily defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rongly included are assets which have been dealt in Paragraph 13.8 in the Resolution Plan as well as assets admeasuring 89.35 acres situated at Village Bavdhan. In the brief synopsis, in Paragraph XIII under the heading C, following has been pleaded: C.PERSONAL PROPERTIES OF THE PROMOTORS INCLUDED IN THE RESOLUTION PLAN: xiii. It is a settled position of law that in terms of Section 18, 25 of the Code, the Resolution Professional and/or the Interim Resolution Professional ,as the case may be, can only take possession of the assets of the Corporate Debtor. However, the following clause of the Resolution Plan deals with the personal assets of the promotors. The relevant clauses of the same are being reproduced hereinunder: Clause 13.8: Mr. Shirish Kulkarni shall handover the 7.33 acres of land at Fursungi to the Corporate Debtor and execute and register a deed of conveyance in relation thereto in favour of the Corporate Debtor without any consideration as the lands were held by them in trust for the benefit of the Corporate Debtor and the approval of township including the lands are in the name of the Corporate Debtor 3.2. Internal Page 172 of 118 at Para 11 Entry No. 10 in the table ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that RP had no access to the Corporate Office or the records of the Corporate Debtor which are still under attachment, it has proceeded to prepare Information Memorandum and obtain valuation and conduct the CIRP, which proceeding cannot be said to be in accordance with the CIRP Process. The facts of the present case indicates that there had been several statutory investigations and attachments of the assets of the Corporate Debtor, much before initiation of CIRP, assets and Bank Accounts of the Corporate Debtor were already attached by the said authorities. The CIRP, had to be conducted in accordance with the IBC and CIRP Regulations. RP on basis of whatever record was available and could be obtained from regulatory authorities and investigating authorities proceeded to the CIRP. Attachment of assets and Office of the Corporate Debtor is the matter of record. 131. Submission of the Appellant that assets were not available to be considered in the Resolution Plan in view of the attachment by Directorate of Enforcement has already been settled by Judgments of this Tribunal as well as High Courts. Section 32-A of the IBC which was inserted in the IBC giving overriding effect to all off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Hissa No. l at Fursungi is annexed herewith and marked as ANNEXURE A-7 . Copy of Gift Deed as executed by Ms. Sai Prakash Kulkarni (Sai Kedar Vanjape) in favour of Mr. Shirish Deepak Kulkarni for land bearing Survey No. 47, Land Bearing Survey No. 48, Hissa No. lA and Land Bearing Survey No. 44, Hissa No. 7 /1 at Fursungi is annexed herewith and marked as ANNEXURE A-8 . 135. The land which is claimed by the gift deed by the Appellant is the land situated at Village Fursungi, Pune. Appellant has claimed title to the land by three Gift Deed dated 29.09.2009 executed by Ms. Shilpa Makarand Kulkarni, Ms. Swarupa Makarand Kulkarni, Ms. Sai Prakash Kulkarni. 136. All the aforesaid Survey Nos. being Survey No. 46 Hissa No. 3, Survey No. 53 Hissa No. 3B/2, Survey No. 36 Hissa No. 1, Survey No. 47 Survey No. 48 Hissa No. 1A and Survey No. 44 Hissa No. 7/1 are the land of Village Fursungi, which are included in the order dated 11.09.2014, issued by Urban Development Department Mantralaya, Mumbai, by which, Special Township Project has approved on 08.06.2011 by the Government Notification. Special Township Project was approved as a Project of the Corporate Debtor including the aforesaid all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Makarand Kulkarni to DSKDL Sr. No. Sale Deed No. Date Total Amount - Sr. No. Sale Deed No. Date Total Amount - 1 6291 10-08-2007 28325000 - 1 1527 16/02/2008 66950000 - 2 8326 20-10-2007 17050000 - 2 1585 18-02-2008 86775000 - 3 66 02-01-2008 5500000 - 3 3739 29-04-2008 28140000 - 4 837 28-01-2008 14162500 - 4 3961 05-07-2008 4062500 - 5 6707 27-08-2007 11618750 - 5 5813 07-05-2008 23400000 - 6 3180 04-09-2008 2887500 - 6 6677 08-04-2008 8190000 - 7 3248 04-09-2008 1375000 - 7 9633 28/11/2008 64400000 - 8 3246 04-09-2008 8087500 - 8 5892 07-08-2008 39487500 - 9 5062 06-12-2008 4252500 - 9 6401 24/07/2008 9100000 - 10 2804 28/03/2008 33575000 - - 11 2852 29/03/2008 412500 - - 12 1706 20/02/2008 12602500 - - 13 2229 03-10-2008 4437500 - - 14 2231 03-10-2008 4526250 - - 15 5512 26/06/2008 4970000 - - 15378250 - 330505000 - 140. The land purchase by Kedar Vanjape (Sai Prakash Kulkarni) are at Table No. 6, which is as follows: Purchase of Land by SaekedarVanjape (niece of Deepak S. Kulkarni) from Agriculturist Sale of the same Land By SaekedarVanjape to DSKDL Sr. No. Sale Deed No. Date Total Amount - Sr. No. Sale Deed No. Date Total Amount - 1 5728 21-07-2007 8250000 - 1 2235 13-10-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48,750 Saptashrungi Oil Mills Pvt Ltd 2,70,000 D S Kulkarni Company 52,73,250 Total 4,46,87,000 5 Hemanti D Kulkarni Wife 47,43,750 DSKDL 10,93,750 Saptashrungi Oil Mills Pvt Ltd 12,25,000 D S Kulkarni and Company 24,25,000 Total 47,43,750 6 Makarand Kulkarni Brother 4,87,25,000 DSKDL 3,88,54,000 D S Kulkarni Associates 29,07,000 D S Kulkarni Company 69,64,000 Total 4,87,25000 7 Shirish Deepak Kulkarni Son 9,11,63,375 DSKDL 5,93,39,777 DSK Motors Pvt Ltd 18,12,500 Ambiance Venture Estates Dev Pvt Ltd. 1,17,66,124 Saptashrungi Oil Mills Pvt Ltd 1,17,66,124 D S Kulkarni Company 64,78,850 Total 9,11,63,375 8 SAI Vanjape Niece 12,50,43,750 DSKDL 6,91,34,063 DSK Motors Pvt Ltd 48,86,500 Saptashrungi Oil Mills Pvt Ltd 23,80,000 D S Kulkarni Company 4,21,43,187 D S Kulkarni Const. Pvt Ltd 65,00,000 Total 12,50,43,750 142. The plot of land which was purchased by Agriculturists, utilising the funds of sister companies of the Corporate Debtor, as noted above clearly indicate that land purchased by family members of the Deepak Kulkarni were not out of their own source and the consideration flow from the Corporate Debtor and its sister companies. When the agriculture land which was purchased b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid land 7.33 acres in the Resolution Plan and no exception can be taken by the Appellant to the Clause 13.8 in the facts of the present case as noted above. 146. We thus do not find any ground as urged by the Appellant to interfere with the order of the Adjudicating Authority approving the Resolution Plan. The appeal filed by Shirish Kulkarni deserves to be dismissed. Company Appeal (AT) (Insolvency) No. 1308 of 2023 - DSK Global Education and Research Private Limited 147. The Appellant challenges Clauses of the Resolution Plan under which the rights of the Appellant has been extinguished with respect to the buildings erected on the lease land by the Lessee. 148. For appreciating the submission, we need to notice certain terms and conditions of the Lease Deed as well as the pleadings of the parties. 149. The Lease Deed was executed by the Corporate Debtor on 24.09.2008 in favour of the Appellant for Survey No.53, 54, 55 and 56 with respective Hissa numbers totalling to 19 acres. The Lease Deed was registered, containing lease land of 19 acres, i.e. about 76,000 sq. mtrs. It is useful to notice Clauses (a) to (f) of the Lease Deed, which are as follows: (a) The Lessor is seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ministrators and assigns for the term of 99 years commencing from the 1st day of July, 2008 for the term of 99 years ( Ninety-Nine years) yielding and paying the yearly rent of Rs. 1, 0 ,00,000/- (Rupees One Crore only), and which rent shall be payable by the Lessee to the Lessor on or before 10th day of every quarter in advance. First quarter will commence from 1st July, 2008 to 30th September 2008. In addition to above rent the Lessee agree to deposit with Lessor Rs.25,00,000/- (Rs. Twenty Five Lacs Only) as a deposit. 151. The lease further granted right to the Lessee to construct building upon demised land, a new building for its requirements of School, Hostels, other buildings etc. Clause 2, sub-clause (c) of the Lease Deed is as follows: (c) That, the Lessee shall at it s own efforts, expense and cost be entitled to construct and complete upon the demised land, a new building or buildings for its requirements of School Hostels, other buildings etc. with all requisite and proper sewers, drains and other conveniences thereto in accordance with prevailing law. That Lessee will construct internal roads and shall also construct compound wall to demised the land to protect it s bou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d indicate that lease was never terminated by the Corporate Debtor, either before commencement of the CIRP on 26.09.2019 or subsequent to commencement of the CIRP. The Lessee has constructed the building on the said premises. For construction of building on the premises, the Appellant has obtained financial assistance from Central Bank of India of Rs.100 crores and Rs.20 lacs in the year 2008. The Appellant s case is that it made construction of several buildings and apart from running various educational facilities, it established a University under DSK World University Act, 2017 and the Appellant claims to have running a University with effect from 05.05.2017 of an international repute. 156. It is also on the record that for the Central Bank of India, charge was created separately for the land as well as the building. 157. The case of the RP as appears from the records, indicate that the Appellant has made payment of rental only till March 2013 and since April 2013, the Appellant was in default in payment of lease rent and till September 2023, lease rental along with interest is Rs.17,24,17,808/-. The above pleadings have been made in reply filed by the RP in the present Appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been quoted by the Applicant in their present application on pages 5 and 6 of the Application under reply, makes the following provision in the event of termination of the Lease Deed for breach thereof by the Lessee: .If the Lessee fails to make good such breach within Three months of the date of service of such notice, the Lessor shall be entitled to re-enter upon the demised premises And in this event Lessor shall be liable to pay to the Lessee cost of construction incurred by the Lessee for constructing buildings/structure, etc. on the said premises ( Emphasis supplied) d. Thus, if the Corporate Debtor wishes to terminate the Lease Deed with DSK Global, the Corporate Debtor would be required to pay DSK Global the cost of construction of the building standing thereon. 4. I say that from the above arrangement, it is clear that while the said Land is the property of the Corporate Debtor, the building constructed by DSK Global continues to be the latter's property. In fact, the Applicant has also admitted that the Land and the building thereon have been separately charged to them. 5. I say that the Applicant had insisted on my placing security guards at the said Land to guard i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he building standing thereon, which have been an additional expense during the ongoing CIRP. Hence, the RP has not terminated the Lease Deed. The RP in paragraph 3 has also extracted Clause 3 of the Lease Deed, which contemplates payment to Lessee the cost of construction incurred by the Lessee in event the Lessor decides to re-enter upon the demised premises, after giving three months notice to the Lessee. The RP has also stated that land, which is the subject matter of the lease is the assets of the Corporate Debtor, whereas the building constructed by the DSK Global is the property of the Appellant. 160. Now, we come to the relevant Clauses of the Resolution Plan, which are questioned by the Appellant. In the Resolution Plan in Schedule-3, Extinguishment of claims/ entitlements , paragraph-13, deals with Related Party Transactions . The Clauses of Resolution Plan 13.3, 13.4, 13.5 and 13.6, which are relevant for the present case, are as follows: 13.3. All unfulfilled obligation of the Corporate Debtor to all related parties and also to DSK Global Education and Research Limited come to an end save and except the obligations of the Corporate Debtor in the Development Agreement dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of Rs.100 crores from Central Bank of India. It is useful to extract paragraph 2.6 of the synopsis given in the Appeal, which is to the following effect : 2.6. The Appellant had thus relying on the said rights created in favour of the Appellant especially the long tenure of the lease terms, proceeded to build infrastructure at the Said Property by investing an amount of around INR 263,38,46,334/-(including the loan amount). 2.6.1. DSK International Campus, Pune was set up in 2008 through a partnership agreement with Chamber of Commerce Industry Grand Hainaut and the Appellant comprising of an Animation, Video Game Industrial Design Institute with state of the art facilities. DSK International Campus were governed by the French CNCP Level 1 certification. Students had opportunity to conduct a part of their curriculum m France and could seek internship world over. 2.6.2. To take things to the next level, the DSK World Education Council was incorporated under the Companies Act, 2013 on 02.02.2015 by the Appellant and on 15.02.2016, an attestation was issued by RUBIKA in respect of certification from the French certification authority of the courses being taught at the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. For the purposes of this [section, the term assets shall not include the following, namely: - (a) assets owned by a third party in possession of the corporate debtor held under trust or under contractual arrangements including bailment; (b) assets of any Indian or foreign subsidiary of the corporate debtor; and (c) such other assets as may be notified by the Central Government in consultation with any financial sector regulator. 164. The learned Counsel for the Appellant, in support of his submission has relied on various judgments of this Tribunal as well as Hon ble Supreme Court, which need to be noticed. 165. The learned Counsel for the Appellant has relied on the judgment of the Hon ble Supreme Court in Dr. K.A. Dhairyawan and Ors. vs. J.R. Thakur and Ors. AIR 1958 SC 789. In the above judgment, the Hon ble Supreme Court had occasion to consider the rights of building erected on the leased land and as to whether the building shall go with the owner of the land. The Hon ble Supreme Court, after considering the Clauses of the Lease, came to the conclusion that Lease Deed did not transfer the ownership in the building to the Lessor while the lease subsisted. In paragraphs 6 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty so building on another's land should be allowed to remove the materials. 7. Normally, under Section 108 of the Transfer of Property Act, before the expiry of the lease, a lessee can remove all structures and buildings erected by him on the demised land. All that was necessary for him to do was to give back the land to the lessor, on the termination of the lease, in the same condition as he found it. The ownership, therefore, of the building in this case was not with the lessors but was with the lessees. Under Section. 108 of the Transfer of Property Act there was nothing to prevent the lessees contracting to hand over any building or structure erected on the land by them to the lessors without receiving any compensation. In other words, although under Section 108 the lessees had the right to remove the building, by the contract they had agreed to hand over the same to the lessors without the right to receive compensation at the end of the lease, the matter being entirely one of contract between the parties. Such a contract, however, did not transfer the ownership in the building to the lessors while the lease subsisted. 166. The learned Counsel for the Appellant has then re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in South Eastern Coalfields Ltd. v. State of M.P., (2003) 8 SCC 648 in the following words : (SCC p. 664, para 28) 28. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the act of the court embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass anorder held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party. ] The principle underlying this maxim is also fundamental to all the rules of administration of justice and hence, an unintended result of any act or omission on the part of the Court, which occurs for whatever reason, is not allowed to operate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is concerned, the law is concerned with assets of the Corporate Debtor and its liabilities, so as to focus the resolution on the assets of the Corporate Debtor. The natural corollary to the above provision is that the assets of the subsidiary Company cannot be dealt with, in CIRP of a holding Company. Holding Company and subsidiary Company have separate legal status and the assets of subsidiary Company cannot be taken into consideration. 170. The above precedents, fully supports the submission of the Appellant that third party assets even though it may be in possession of the Corporate Debtor, cannot be taken control of, nor can be treated to be the assets of the Corporate Debtor by virtue of Section 18(1)(f) and (g) Explanation. In the present case, the Corporate Debtor was admittedly owner of the lease land and lease land has been taken into CIRP by the RP. The building, which was constructed on the lease land, was the building constructed by the Appellant as per the terms and conditions of the Lease Deed and the Appellant is the owner of the building. The Lease Deed has also provided that Lessee shall construct the building for running of Schools, Hostels and other buildings and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... significant to mention that in the instant case even the margin money was put in by the Bank and not by the Corporate Debtor . 172. The IBC does not contemplate termination of all contractual agreements, creating legal rights in favour of third parties. There can be cases, where Corporate Debtor even during currency of the CIRP can terminate contractual agreements as per the Clauses of the agreements. But, IBC cannot be used for purpose of extinguishing of contractual agreement, negating rights of third parties. It can be explained by taking an example a Corporate Debtor is owner of a building, which has been leased out for 30 years lease to a tenant on payment of yearly rent. When the building is taken in the CIRP, the tenant shall not be automatically deprived of his tenancy rights in the assets. The termination of tenancy can be only done in accordance with the Clauses of the lease, which, if permissible, may be done during CIRP or even thereafter. But by taking the building in the CIRP, rights of tenant cannot be extinguished. 173. The learned Counsel for the Appellant has also relied on judgment of the Hon ble Supreme Court in Tata Consultancy Services Ltd. vs. SK Wheels Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In doing so, we reiterate that NCLT would have been empowered to set aside the termination of PPA in this case because the termination took place solely on the ground of insolvency. The jurisdiction of NCLT under Section 60(5)(c) of IBC cannot be invoked in matters where a termination may take place on grounds unrelated to the insolvency of corporate debtor. Even more crucially, it cannot even be invoked in the event of a legitimate termination of a contract based on an ipso facto clause like Article 9.2.1(e) herein, if such termination will not have the effect of making certain the death of corporate debtor. As such, in all future cases, NCLT would have to be wary of setting aside valid contractual terminations which would merely dilute the value of corporate debtor, and not push it to its corporate death by virtue of it being corporate debtor's sole contract (as was the case in this matter's unique factual matrix). 177. The terms of our intervention in the present case are limited. Judicial intervention should not create a fertile ground for the revival of the regime under Section 22 of SICA which provided for suspension of wide-ranging contracts. Section 22 of the SICA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Appellant, who feels aggrieved by the order passed by the Adjudicating Authority, approving the Resolution Plan, can very well maintain the Appeal and the locus of the Appellant to file the Appeal cannot be questioned by the SRA. It is further submitted that the Appellant did not challenge the inclusion of the property in the Information Memorandum. We have already noticed the affidavit of RP, where he has clearly stated that land which formed the part of the Lease Deed was included in the assets of the Corporate Debtor and rightly so. The RP having consciously not terminated the Lease Deed, nor claimed re-entry or any right to the building, it is not open for the SRA to question the Appellant s locus to challenge the impugned order. The learned Counsel for the SRA further stated that Central Bank of India has filed its claim and has secured charge over the assets of the Corporate Debtor. The learned Counsel for the Appellant has pointed out that claim in Form-C, submitted by Central Bank of India was filed on the strength of Corporate Guarantee given by the Corporate Debtor. The learned Counsel for the Appellant has referred to Items 6 and 10 of Form-C, which are as follows : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not belong to the Corporate Debtor and could not have been included in the assets of the Corporate Debtor. The Appellant, thus, questions the inclusion of the Appellant s land in Appendix IV of the Resolution Plan, which contains description of the properties. 180. Before we proceed to consider the rival submissions, it is useful to notice the Sale Deed and the Survey of the area, which has been conveyed to the Appellant. Both the Sale Deeds are registered Sale Deeds, which have been filed at Annexures A-6 and A-7of the Appeal. The Sale Deeds clearly indicate that Survey No.326 was admeasuring 2 H 42.8 R, which was divided in two equal parts, S. No.326/1 and has an area of 1 H 21.4 R. Out of entire S. No.326/1 an area of 20.5 R was conveyed by Shri Shivaji Vithalrao Ingale vide Sale Deed dated 07.06.2022, which is clearly reflected from the registered Sale Deed. Similarly, by another Sale Deed, an area of 20.5 R was conveyed by Smt. Lata Shivajirao Ingale from Survey No.326/1. The Appellant has also brought on record the Extract of 326/1, which was downloaded on 06.07.2023. Extract of Survey No.326/1 is as follows: GOVERNMENT OF MAHARASHTRA VILLAGE FORM No.SEVEN Record of Rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. 283/1B 9. 247/2 10 326/1 It is relevant to notice that Item No.326/1 is included at Sl. No.10, but no area of the plot has been mentioned. 182. In the CIRP, S. No.326/1 as noted above, has been included. The RP has filed a reply. The RP, who has prepared the Information Memorandum, included the Plot 326/1 in the CIRP of the Corporate Debtor. The RP s case throughout has been that the said details of the assets of the Corporate Debtor were obtained by the RP from the information received from Investigating Agency, Enforcement Directorate. The RP has filed a reply in the Appeal and has pleaded that the properties, which were included in the CIRP of the Corporate Debtor were based on the information received from Provisional Attachment Order ( PAO ) dated 14.02.2019. It is pleaded that believing on the PAO, the RP has bonafide included the properties in the assets of the Corporate Debtor. In paragraphs 11 and 12 of the reply of the RP, following has been pleased: 11. I say that Respondent No.1 also included the property being land bearing number Survey No.326/1 situated at bavdhan, Taluka Haveli, District Pune ( said Property ) as part of the assets of the Corporate Debtor. 12. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Sale Deeds executed in favour of the Appellant were not before the RP and according to information provided in the PAO, the land was included. It is useful to extract paragraph 14 of the reply of the RP, which is as follows: 14. I say that Respondent No.1 became aware of the ownership of the said Property at the time of perusing the present Appeal. I further submit that the Sale Deeds executed in favour of the Appellant herein were not brought to the attention of Respondent No.1 at a prior stage. I further say that the said Property were included by Respondent No.1 according to the information provided in the said PAO Oder which specified that the said Property were owned by the Corporate Debtor. Therefore, in the absence of any clarity regarding the said Property, I say that Respondent No.1 in his capacity as the Resolution Professional included the said Property with the primary goal to maximise the value of the Corporate Debtor. 186. The basis of the inclusion of the Plot 326/1 is the PAO, as has been pleaded by the RP. When we look into the PAO, it is clear that PAO mentions two part of Survey No.326/1 0H39R in record in the name of Shirish D Kulkarni and another area in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Shri Eknath Babu Dgade and Shri Nivrutti Babu Dagade; AND WHEREAS the entire land was divided in two equal parts and numbered as S. No.326/1, admeasuring an area of about 1 H 21.4 R in the name of Shri Eknath Babu Dagade and S. No.326/2 admeasuring an area of about 1 H 21.4 R in the name of Nivrutti Babu Dagade respectively vide mutation entry No.1273 dated 1273 dated 8th September 1974; 187. Thus total area is 1H 21.4R of 326/1 and when we include the 1H 41R recorded in favour of the Appellant; 0H41R recorded in the name of the Corporate Debtor; and 0H39R recorded in the name of Shirish D Kulkarni, measurement of entire Plot is complete. Thus, above facts makes it clear that area, which is owned by the Appellant is entirely different from the area, which was recorded in the name of Shirish D Kulkarni and Corporate Debtor from Survey No.326/1. It is relevant to notice that PAO attaches two part of 326/1, i.e. 39R in the name of Shirish D Kulkarni and 41R in the name of Corporate Debtor, but area which is in the name of the Appellant, was not included in the attachment order. The RP in his reply has candidly submitted that he was not aware of the Sale Deed in favour of the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not pertain to the challenge to the approval of Resolution Plan by the Adjudicating Authority vide order dated 23.06.2023. Hence, the proceedings taken in this Tribunal and Hon ble Supreme Court had no bearing on the issues, which has arisen in the present Appeal. 189. Respondent Nos.2 to 4 in its reply has also relied on the PMLA, Provisional Attachment Order dated 14.02.2019. We have already noticed the details of PAO dated 14.02.2019 as above and have come to the conclusion that PAO could not have been the basis for including the assets of the Appellant in the CIRP of the Corporate Debtor. It is the RP, who has included the assets of the Appellant in the CIRP of the Corporate Debtor on the basis of PAO and he was not aware of the Sale Deeds in favour of the Appellant, which he came to know only from the present Appeal. We have already discussed above that PMLA order was with respect to two different portions of Survey No.326/1 and does not relate to area, which was owned by the Appellant. Hence, we are of the view that area owned by the Appellant in Survey No.326/1, i.e. 0H41R (20.5 R each) was neither part of the PMLA order, nor could have been included in the CIRP of the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansilal Selot which allotment letter issued by the Corporate Debtor reads as follows:- D. S. KULKARNI DEVELOPERS LTD. AN ISO 0001,14001,18001 COMPANY PROMOTERS BUILDERS Regd. Off DSK House 1187/60, JM Road Shivajinagar, Pune-411005 Tel: 020-66047100 Fax: 020-25535772 CIN: L45201PN1991PLC063340 Mumbai Office: DSK House , Veer Savarkar Marg (Cadell Road). Next to Mayor's Burgston, Shivaji Park, dadar, Mumbai-400-025 Tel: 022-2446 64 46/3446 24 43 Fax: 022-244401 63 Email: [email protected] Website: www.dsedl.com Date: 29/04/2017 To, 1. Satish Bansilal Selot Flat no-12, silver Birch Apt, Model colony,Pune-16 ALLOTMENT LETTER We have accepted your provisional booking of Flat No.K-608, floor 6th, in Wing K admeasuring 71. 53 Sq. Mtrs. of Carpet area in your project called DSK VISHWA Ph- VI AANANDGHAN situated at Gat No.186 (pt),187 and 188 situated at village Kirkatwadi, Grampanchyat Kirkatwadi, Taluka Haveli, District Pune (hereinafter collectively referred to as the said Flat ). You have agreed to pay the total consideration of Its. 50,90,000/- (Rupees fifty Lakhs ninety thousand Only) for the said Flat. You have paid Rs. 43,06,858/- (Rupees forty three Lakhs six thousand eight hund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ou have also agreed to pay Stamp Duty, Registration Fees, Initial Maintenance charges, VAT, Service Tax, GST, LBT, Share Capital and Entrance Fees if applicable and any other expenses, taxes and levies as may be required and demanded from time to time. You are aware that, a C-B1(SCP) In Wing C is allotted to you. You are also aware that, said allotment will be finalized as per rules and regulations of proposed society or apartment condominium. It is informed to you to execute and register the agreement immediately. However on your specific request we have agreed to execute and register necessary agreement under section 4 of the Maharashtra Ownership Flat Act 1963 in respect of the said flat after completion of said flat, within the prescribe period by complying required formalities and paying Stamp duty, Registration charges and other expenses as mentioned herein above. A request letter dated 25.04.2017 is furnished by you and relying on the undertaking mentioned in the request letter, this allotment letter is issued to you. For M/s. DSK Global Education Research Ltd. Authorized Signatory 195. All the allotment letters clearly contain the total consideration for flat and the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 103.39 DSK Global Education and Research Ltd. 120.26 120.26 DSK Global Education Research- Anandghan Loan 437.16 437.16 Mrs. H. D. Kulkami 299.24 299.24 Mr. Shirish Kulkarni 48.94 48.94 Mr. D. S. Kulkarni 96.34 96.34 Ambiance Ventures Estates Developments Pvt. Ltd. 682.19 682.19 Sub total 53,027.83 53,027.20 197. The Appellants before us by compilation has brought on record bank statements to prove the payments made by the Appellants to DS Kulkarni Company and other sister concern. The allotment letter issued by the Corporate Debtor or DSK Global Education and Research Pvt. Ltd. clearly contains admission of receipt of the amount. The Resolution Professional who has filed reply in the Company Appeal (AT) (Insolvency) No.1660 of 2023 taking the stand that the claim of the Appellants could not be admitted since amounts have not actually been received by the Corporate Debtor. This was also stand taken in the list of creditors issued on 25.05.2021. We may also notice that the present is a case where records and office of the Corporate Debtor was attached and the Resolution Professional could not access the records of the Corporate Debtor for verifying the claims and only document whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e existence of debt due to a creditor in a class may be proved on the basis of- a. the records available with an information utility, if any, or b. other relevant documents, including any- i. agreement for sale; ii. letter of allotment; iii. receipt of payment made; iv. documents for case filed for claims with any authority, if any v. order passed by any authority in support of claim, if any vi. such other document, evidencing existence of debt. vii. KYC Documents, Cancelled Cheque 3. A creditor in a class (HOME BUYERS) may indicate its choice of an authorized representative, from amongst the three choices provided by the Interim Resolution Professional in the public announcement, to act as its authorized representative. a) Mr. Kedar Muley -IBBI/IPA-001/IP-P-01365/2018- 2019/12282 b) Mr. Girish Juneja. -IBBI/IPA-001/IP-P00999/2017- 2018/11646 c) Mr. Prabhanjan Maheshwari- IВВІ/IРА-002/IP- N00517/2017-2018/11637 4. The Profile of the three professionals is available on the website http://dskcirp.com/ We would like to inform you that Form CA can be downloaded from the website of http://dskcirp.com/ or https://ibbi.gov.in/home /downloads. The Home Buyers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Appellants as having become infructuous. When the application was filed in the year 2021 i.e. much before plan approval application was filed, there was no occasion for not considering the application filed by the Appellants through their representatives and rejection of the application as having become infructuous is unsustainable. However, in view of the plan having been approved by the Adjudicating Authority, we need to consider the claim of the homebuyers in this appeal and there is no occasion for issuing any direction for consideration of IA No.1844 of 2021 afresh at this stage. 201. Counsel for the Respondent- Resolution Professional has submitted that there is no disbursement to the corporate debtor for time value of money nor transaction has any effect of commercial borrowing. The above submission of the Resolution Professional cannot be accepted in view of the wide canvas of clause 5(8)(f) which provides for any amount raised under any other transaction when the homebuyers have paid amount to DS Kulkarni and Company, which payment has been acknowledged and accepted by the Corporate Debtor, the said amount is an amount raised from an allottee under Real Estate Proje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchaser shall make the payment of agreed consideration to DSK Global Education and Research Ltd. . Schedule IV of the Agreement is as follows:- SCHEDULE- IV The Purchaser/s shall pay the agreed consideration of Rs. 2292000/-(Rupees Twenty Two Lac Ninety Two Thousand Only) in respect of the said flat to the DSK Global in the following manner- Rs. 458400/- On or Before Execution of Agreement Rs. 343800/- On or Before Commencement of Plinth Rs. 91680/- On or Before Commencement of 1st Slab Rs. 91680/- On or Before Commencement of 2nd Slab Rs. 91680/- On or Before Commencement of 3rd Slab Rs. 91680/- On or Before Commencement of 4th Slab Rs. 91680/- On or Before Commencement of 5th Slab Rs. 91680 On or Before Commencement of 6th Slab Rs. 91680/- On or Before Commencement of 7th Slab Rs. 91680/- On or Before Commencement of 8th Slab Rs. 91680/- On or Before Commencement of 9th Slab Rs. 91680/- On or Before Commencement of 10th Slab Rs. 91680/- On or Before Commencement of 11th Slab Rs. 91680/- On or Before Commencement of 12th Slab Rs.91680- On or Before Commencement of 13th Slab Rs. 91680/- On or Before Commencement of Brick Work Rs. 68760/- On or Before Commencement of Internal Pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants relied on judgment of this Tribunal in K V Developers Private Limited. That was a case where claims could not be filed by the Homebuyers, but the claims were reflected in the account of the Corporate Debtor. This Tribunal in the said judgment took the view that when claims are reflected in the accounts of the Corporate Debtor, it is the duty of the RP to collate the claim and show the same in Information Memorandum. In the present case, it is not the case of the Appellant that their claims are reflected in the account of the Corporate Debtor, nor any materials have been filed along with the Appeal to prove that their claims have been reflected in the records of the Corporate Debtor. We, thus, are of the view that reliance on the judgment in K V Developers Private Limited is clearly misplaced and does not help the Appellants in the present case. 207. In the present case, Appellants have brought on record the Registered Agreement dated 30.06.2017 entered with the Corporate Debtor which is a relevant record for consideration of the claim of the Appellants. The proceeding which arose from the order dated 21.11.2023 was the proceeding in which the claim was rejected of the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been filed which mentions that loan adjusted against purchase of Flat Nos. G 201 and G 601. At page 192 ledger account as brought on the appeal is as follows:- Loan to D.S. Kulkarni Co. Ledger Account 1-Apr-15 to 31-Mar-18 Date Particulars Vch Type Vch No. Debit Credit 13- Apr- 15 HDFC BANK-0148 100 0018132 CH. NO. 000389- HDFC BANK LTD. CAMP BRANCH, PUNE 411 001 Payment 10,00,000.00 16- Apr- 15 HDFC BANK-0148 100 0018132 CH. NO. 000397- HDFC BANK LTD. CAMP BRANCH, PUNE 411 001 Payment 25,00,000.00 23- May- 15 HDFC BANK-0148 100 0018132 CH. NO. 000445- HDFC BANK LTD. CAMP BRANCH, PUNE 411 001 Payment 25,00,000.00 Closing Balance 60,00,000.00 60,00,000.00 60,00,000.00 60,00,000.00 1- Apr- 16 Opening Balance 60,00,000.00 28- Jul- 16 Kotak Bank A/c No.- 6311761128 CH. No.- 634399- BOM, BUDHWAR PETH Receipt 10,00,000.00 29- Jul- 16 Kotak Bank A/c No.- 6311761128 CH. No.- 634399- BOM, BUDHWAR PETH- CHEQUE RETURNED Payment 10,00,000.00 30- Jul- 16 Kotak Bank A/c No.- 6311761128 RTGS RECEIVED FROM DSK (BANK OF MAHARASHTRA- UTR NO. MAHBR5201607300 2644693) Receipt 10,00,000.00 Closing Balance 70,00,000.00 20,00,000.00 50,00,000.00 70,00,000.00 70,00,000.00 Apr- 17 Opening Balance 50,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Fees, Initial Maintenance charges, VAT, Service Tax, GST, LBT, Share Capital and Entrance Fees if applicable and any other expenses, taxes and levies as may be required and demanded from time to time. You are aware that, a Car park No: 97 (SCP) on I basement floor is allotted to you. You are also aware that, said allotment will be finalized as per rules and regulations of proposed society or apartment condominium. It is informed to you to execute and register the agreement immediately. However on your specific request we have agreed to execute and register necessary agreement under section 4 of the Maharashtra Ownership Flat Act 1963 in respect of the said flat on or before September 2017 within the prescribe period by complying required formalities and paying Stamp duty, Registration charges and other expenses as mentioned herein above. A request letter dated 20-04-2017 is furnished by you and relying on the undertaking mentioned in the request letter, this allotment letter is issued to you. For M/s. D. S. KULKARNI DEVELOPERS LTD. Authorized Signatory 211. Similarly, allotment letters issued by the corporate debtor to all the appellants accepting their payments of entire consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the delayed possession. However, since the respondent has given the undertaking to register the agreement and the complainant has also accepted the same, nothing survives in this complaint. Hence the complaint stands disposed of. 212. When before Maharashtra RERA corporate debtor has acknowledged that it shall execute the agreement of sale in favour of the appellants, there can be no denial that appellants are allottees within the meaning of IBC. Resolution Professional after receiving of the claims by the Appellants has also sent a communication to homebuyers dated 17.07.2020 where again it was observed that the claim will be admitted subject to verification of the books of accounts of DSDKL. The allotment letter which was issued in April 2017 clearly acknowledges the receipt of the entire payment and it was not appropriate for the Resolution Professional to reject the claims of the appellants. It is further relevant to notice that after rejection of the claim of the appellants, they have filed IA No. 2157 of 2021 before the Adjudicating Authority which IA was listed before the Adjudicating Authority on several occasions. Adjudicating Authority has passed the order on 01.08.2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfied that appellants claim was not liable to be rejected on the ground that they have not submitted any document to prove the payment to the corporate debtor when the corporate debtor itself in the allotment letter has acknowledged the payment of entire consideration. We, thus, are satisfied that the claim of the appellants deserves consideration. The Resolution Professional erred in not accepting the claims. 214. Learned Counsel for the RP as well as for the SRA tried to condemn the allotment letter issued by the Corporate Debtor in favour of the Appellants, Homebuyers as fraudulent exercise, without any payment to Corporate Debtor. We need to look into the background facts under which allotment letters were issued by the Corporate Debtor in April 2017 in favour of the Appellants, which were more than two years prior to initiation of CIRP. We have already noticed that the complaints and FIR by several depositors and individuals against the Corporate Debtor and Group Companies, had begun in the year 2017. The money having received from the Appellants by sister concern of the Corporate Debtor, allotment letters issued by the CD by accepting the payment received, cannot be held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Resolution Professional has filed reply in both the appeals. It is submitted by the Resolution Professional that the plan has been approved by 83.37% of the vote share. It is submitted that the operational creditors have not filed any objection before the Adjudicating Authority. When we look into the pleadings in the appeals filed by the operational creditors as well as the employees, no grounds have been made out that payments which have been offered to them is less than their entitlement as per Section 30(2)(b). It is now well settled that plan which is approved by the CoC, can be interfered with only when there is non- compliance of the provisions of Section 30(2). Operational creditors in which employees were also included are entitled for payment as per Section 30(2)(b). Thus, the only ground on which an amount proposed in the plan can be interfered with to an operational creditor when the amount is not in conformity with Section 30(2)(b). It is true that the amount offered to the operational creditors is .368% and to the employees is .97% but law as exist today does not permit interference in the amount proposed in the plan unless appellants are able to prove any violat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (g) explanation, the assets of only Corporate Debtor can be taken control by the RP. We have already held that Resolution Plan cannot include the assets of third party, which are although in possession of the Corporate Debtor, but not owned by the Corporate Debtor. Inclusion of assets of Appellant in Company Appeal (AT) (Insolvency) Nos. 1307 and 1308 of 2023 is, thus, clearly in violation of law. While considering the Company Appeal (AT) (Insolvency) No. 1308 of 2023, we have held that the lease, which was granted to the Appellant DSK Global Education and Research Pvt. Ltd. was never terminated and the building, which was constructed by the Appellant, was owned by the Appellant and the clauses of Resolution Plan, which extinguished the rights of the Appellant, were not in accordance with law. 219. The part of the Resolution Plan being not in accordance with law, which has been approved by the Adjudicating Authority, the course open for this Tribunal is to either set aside the Resolution Plan or to delete the clauses, which are not in accordance with law to make the Resolution Plan compliant. We are of the view that second course need to be adopted, by deleting the clauses in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted from the Resolution Plan to make the Resolution Plan compliant. The Appellant s (DSK Global Education and Research Pvt. Ltd.) rights and building standing on the lease land, shall not be treated to have extinguished. 4. Company Appeal (AT) Insolvency Nos.1361, 1385, 1660 of 2023 These Appeal(s) filed by Homebuyers are allowed. The claims of the Appellant(s) are accepted as allottees of the Corporate Debtor. The order of RP, rejecting their claims is set aside. The Appellant(s) name shall be treated to be included in the list of Homebuyers, whose claim have been accepted and they shall also be treated by SRA in the Resolution Plan, in the same manner as other Homebuyers, whose claims have been admitted. The Appellant(s) shall also be entitled for the units allotted to them in accordance with clauses of the Resolution Plan. 5. Company Appeal (AT) Insolvency Nos.1050 and 1051 of 2023. The Appellant(s) having successfully proved the allotment by Registered Deed executed on 30.06.2017 and their payments also reflected in ledger of the Corporate Debtor, they are also entitled to claim treatment as has been given to the claims of the other Homebuyers. They are entitled to be treated i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
