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TMI Blog2024 (9) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... 320, 4317 of 2023 Company Appeal (AT) (Insolvency) No. 1660 of 2023 & I.A. No.5986, 5987, 5988 of 2023 Company Appeal (AT) (Insolvency) No. 1050 of 2023 Company Appeal (AT) (Insolvency) No. 1051 of 2023 Company Appeal (AT) (Insolvency) No. 1361 of 2023 & I.A. No. 4843 of 2023 Company Appeal (AT) (Insolvency) No. 1385 of 2023 [ Justice Ashok Bhushan ] Chairperson And [ Barun Mitra ] Member ( Technical ) For the Appellants : Mr. Krishnendu Dutta, Sr. Advocate with Akshay Gosavi, Mr. Kumar Anurag Singh, Mr. Kartik Sandal, Ms. Raveena Devan, Mr. Avaneesh Jaiswal and Mr. Zain A. Khan, Mr. Anish Ahlawat, Advocates For the Respondents : Mr. Abhijeet Sinha, Sr. Advocate with Mr. Varun Kalra, Mr. Samir Malik, Mr. Akash Chatterjee and Mr. Pranav Khanna, Advocates for R-1. Mr. Neeraj Kishan Kaul, Mr. Arvind Nayar, Sr. Advocate with Mr. Puneet Singh Bindra, Mr. Akshay Doctor, Mr. Parag Sawant, Mr. Akshay Sharma, Mr. Akshay Joshi, Mr. Rishabh Gupta, Ms. Mehreen Garg , Advocates for SRA JUDGMENT ASHOK BHUSHAN, J. The Appeal(s) have been filed against the - (i) Order dated 23.06.2023 passed by National Company Law Tribunal, Mumbai Bench-I in IA No. 1950 of 2021 filed by the Resolution Prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2002 (hereinafter referred to as the "PLMA Act") against the Corporate Debtor and its Promoters, Related Entities, which also need to be noticed. 4. The D.S. Kulkarni Developers Ltd. and Group Companies have been in the business of residential and commercial construction since last several decades. Deepak Sakharam Kulkarni, Appellant No.1 in one of the Appeals is founder of the Group. Appellant No.2 - Smt. Hemanti Deepak Kulkarni is wife of Deepak Sakharam Kulkarni. Shri Shirish Deepak Kulkarni, Appellant in Another Appeal is son of Deepak Sakharam Kulkarni and Smt. Hemanti Deepak Kulkarni. On 31.12.1984, Deepak Sakharam Kulkarni, Hemanti Deepak Kulkarni and Shirish Deepak Kulkarni, as Partners, constituted a Partnership Firm namely - D.S. Kulkarni & Company. On 18.05.1987 Deepak Sakharam Kulkarni with Hemanti Deepak Kulkarni and Shirish Deepak Kulkarni constituted another Partnership Firm namely - D.S. Kulkarni & Associates. On 20.09.1991,D.S. Kulkarni Developers Ltd. was incorporated as Public Limited Company with Deepak Sakharam Kulkarni as its Chairman and Managing Director. DSK Global Education and Research Pvt. Ltd. was constituted as Registered Company, wherein Deepak Sak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. Kulkarni & Co. and its relatives. The fund for purchase of agricultural land to its relatives were given by Hemanti Deepak Kulkarni, the President of the Group. Relatives of the Deepak Sakharam Kulkarni purchased various land in their own names from the funds given by Hemanti Deepak Kulkarni. The foreign Company due to its financial constraints backed out from the Joint Venture, leading to cancellation of SEZ Project. On cancellation of SEZ Project, the Promoter decided to develop an Integrated Township Project spread over 236 acres of land at Fursungi. The Promoter informed the D.S. Kulkarni & Co. and all other Partnership Firms as well as relatives to refund the amount advanced to them for carrying out development in the land purchased by them. Consequently, the balance amount, which was advanced, was refunded. The Collector of Pune had sanctioned the proposed outlay of land of 181 acres for special township by way of order dated 21.01.2013. The land, which was referred to by the Collector, included land in the name of Corporate Debtor, D.S. Kulkarni & Co. and certain other individual Members. 6. In the year 2013, DSK Group of Companies with desire to expand their business, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Deepak Sakharam Kulkarni and Hemanti Deepak Kulkarni were arrested in the PMLA case on 07.02.2018. Hemanti Deepak Kulkarni was released on 18.11.2022, whereas Deepak Sakharam Kulkarni was released on 09.03.2023. 8. After commencement of CIRP vide order dated 26.09.2019, Manoj Kumar Agarwal was appointed as IRP, who was subsequently confirmed as RP. RP issued publication in the newspaper as well as on the website, inviting claims from the homebuyers, some of the homebuyers, who are Appellants before us and have filed their claims in response to the publication issued by the IRP. In response to the notice issued, several homebuyers filed their claim as allotment letter issued by the Corporate Debtor in the year 2017 itself. The RP sent various communications to certain homebuyers including some of the Appellants herein, asking details of payments to the Corporate Debtor. Ultimately the RP issues list of creditors dated 09.08.2021. Claim of the homebuyers, who could not file any documents to support their payment to the Corporate Debtor were rejected. The claims of the homebuyers who are Appellants before us, also was not included in the list of creditors, as admitted claims. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived from few depositors of the Corporate Debtor, various regulatory authorities investigating agencies took cognizance. Enforcement Directorate issued letter dated 14.02.2019 in terms of Section 5 of the Prevention of Money Laundering Act, 2002, (hereinafter referred to as `PMLA Act, 2005'). The Adjudicating Authority by subsequent order dated 05.08.2019, confirmed the provisional attachment order. The Appellants were arrested on 17.02.2018. Appellant No. 1 Deepak Skaharam Kulkarni was released from Jail on 09.03.2023 and Appellant No. 2 Hemanti Deepak Kulkarni was released from Jail on 18.11.2022. CIRP against the Corporate Debtor commenced on 26.09.2019. Appellant's case is that Appellant being lodged in Jail had no access to any of the documents prepared or drawn by the Resolution Professional (RP). After release the Appellants were in process of seeking further information from the stakeholders in respect of Corporate Debtor, when they learnt that orders on the application for approval of the Resolution Plan has been heard and reserved. On 23.06.2023, Adjudicating Authority allowed the application filed by the RP. Appellant's case in the appeal is that the assets of the Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority in I.A. No.1950/2023. Comp. App. (AT) (Ins.) No. 1142/2023 21. This appeal has been filed by Shirish Deepak Kulkarni, one of the promoters of the Corporate Debtor and son of Deepak Sakharam Kulkarni and Hemanti Deepak Kulkarni. 22. Appellant's case in the appeal is that the Resolution Plan submitted by Respondents No. 2 to 4 takes away the assets of which the Appellant is owner. Appellant in the appeal in Paragraphs 7.1, 7.2 & 7.3 has pleaded as follows: "7.1. The Corporate Debtor i.e. D S Kulkarni Developers Limited was incorporated and it was engaged in the construction business. Print out of the Master Data of the Corporate Debtor as available on the official website of the Ministry of Corporate Affairs is annexed herewith and marked as ANNEXURE "A-5". 7.2. Property being land bearing numbers (i) Survey No. 46, Hissa No. 3 at Fursungi, (ii) Survey No. 53, Hissa No. 3B/2, (iii) Survey No. 36, Hissa No. I at Fursungi, (iv) Survey No. 47, Hissa No. IA, (v) Survey No. 48, Hissa No. I A and (vi) Survey No. 44, Hissa No. 7/1 at Fursungi were conveyed in favour of the Appellant. Sl. No. Date of Conveyance Property Description a. 29.09.2009 29. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of India (SBI) being C.P. IB No. 199 (MB)/2021 which proceedings are still pending. The case of the Appellant is that Appellant was never given any opportunity in the CIRP of the Corporate Debtor. The Appellant who was owner of the above property cannot be compelled to transfer the same in favour of the Resolution Applicant. The owner that is the Appellant cannot be divested of the rights to enjoy the ownership rights. Appellant in the appeal has prayed for setting aside the order dated 23.06.2023. Comp. App. (AT) (Ins.) No. 1307/2023 24. The appeal has been filed by partnership firm consisting of Deepak Sakharam Kulkarni and Hemanti Deepak Kulkarni. 25. The Appellant's case is that in the Resolution Plan in Appendix IV bearing No. 10, Appellant's property being aggregate 89.35 acres survey No. 326/1 Village Bavdhan have been included in the Resolution Plan without acknowledging that the aforesaid assets are owned by the Appellant partnership firm. Appellant's case is that IRP/RP can take possession of assets which are owned by the Corporate Debtor only. Assets which are not owned by Corporate Debtor cannot be included in the Resolution Plan. Proceedings under Section 95(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks for obtaining of financial/loans for construction of building/structures. The Appellant has taken facility of Rs. 100 Crores and 20 Lakhs from Central Bank of India to construct and operate the institute on the said property, charge was taken in favour of Central Bank of India. The Appellant proceeded to build infrastructure on the said lease property by investing an amount more than Rs. 263 Crores. Government of Maharashtra, promulgated DSK World University Act, 2017, which came into effect on 05.05.2017, establishing the University which University is offering a variety of courses and the Resolution Plan submitted by Respondents No. 2 to 4, the rights of Appellant have sought to be extinguished. The Lease Deed executed by the Corporate Debtor for 99 years could not have been extinguished in the Resolution Plan. Corporate Debtor at no point of time, including the Resolution Professional, had ever issued a notice terminating the lease. Appellant has questioned the provisions of the Resolution Plan 7.1.1.6. 30. It is the case of the Appellant that RP did not terminate the Lease Agreement since on termination, the Appellant was entitled for compensation with regard to building co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir claim. In the application, details of the Flat No. total consideration of Flat, total amount paid and allotment date has been mentioned. The entity who had issued a letter was also mentioned which were mostly the Corporate Debtor, with regard to few Appellants allotment letter was issued by DSK Global. In I.A. No. 1844/2021 notices were issued by Adjudicating Authority on 25.08.2021 to which a Reply was also filed by the RP. Adjudicating Authority, however, without deciding the application I.A. 1844/2021 proceeded to approve the Resolution Plan on 23.06.2023. By a subsequent order dated 01.08.2023, I.A. No.1844/2021 was dismissed by following order: "IA 2157/2021 IA 1844/2021 IA 913/2023 Mr. Rohit Gupta, Ld. Counsel for the Applicant in IA 913 of 2023 and Mr. Shyam Kapadia, Ld. Counsel for the Resolution Professional of the Corporate Debtor are present. These Interlocutory Applications have been filed by Applicants, Home Buyers seeking direction against the Resolution Professional of the Corporate Debtor for admission of their rejected claims/modification of the Resolution Plan In this case the Resolution Plan has already been approved on 23.06.2023. Hence the present Inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Corporate Debtor in the capacity of developer and DSK Global Education & Research Limited as land owner, executed registered Tripartite Agreement dated 30.06.2017 in favour of the Appellant in purchase of Flat No 201. DS Kulkarni Developers Limited by the general entry bearing No. six dated 26.06.2017 for the period from 01.06.2017 to 30.06.2017 adjusted the loan advanced by Appellant No. 2 through DS Kulkarni Company against the consideration to be paid by the purchasers for the Appellant towards the said Flat No 201. 38. Appellant made further payments towards VAT and service tax and towards stamp duties and registration charges directly to the Corporate Debtor towards purchase of the Flat. A copy of the Ledger Account of the Appellant No. 1 maintained by the Corporate Debtor along with the copy of Bank Statement has also been filed in support of the appeal. Appellant has already paid the total consideration as well as the amount towards the Stamp Duty and registration charges and VAT on service tax. The Corporate Debtor, lastly, modified its RERA application in the month of July 2017, which include the total No of Flats sold in G wing in project DSK Vishwa Ph-VI, Anandghan, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed 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 Plan by which Resolution Plan, the Appellant have not been recognised as Homebuyers. Comp. App. (AT) (Ins.) No. 1361/2023 42. This appeal has been filed challenging the order dated 01.08.2023 passed by the Adjudicating Authority in I.A. No. 2157/2021 filed by the Appellant. 43. The Appellant's case is that Appellants are Homebuyers in Project of the Corporate Debtor, namely DSK Madhukosh, situated in Village Mohili, Taluka Kurla, sub-District Bandra, Mumbai. Appellants were issued allotment letter in April 2017. All allotment letters in favour of the Appellants were issued by the Corporate Debtor dated 20.04.2017 to 29.04.2017. In allotment letter issued in favour of Appellant No. 1 dated 24.04.2017, allotment of Flat No. 503, 5th Floor, in Wing B was made. The allotment also acknowledged that Appellant has paid consideration of Rs. 81 Lakhs for the said Flat. The Appellants were handed over possession of the flats. The Corporate Debtor did not execute the registered Agreement with respect to the units aggrieved by which App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 Authority on different dates in year 2021 and 2022. On 13.06.2022, Adjudicating Authority passed following orders: "I.A. No. 1950 of 2021 This application is filed for approval of Resolution Plan. It is made clear that the present Application will be heard after disposing of all other pending Applications. Accordingly, the same is adjourned on 20.07.2022." 47. Although on various subsequent dates, all the applications including the application of the Appellant was also listed, but I.A. No. 2157/2021 was kept pending and Adjudicating Authority approved the Resolution Plan on 23.06.2023 and subsequently by the order dated 01.08.2023, dismissed the application as infructuous. 48. In the appeal following prayers have been made: "(a) set aside the Impugned Order dated 1st August 2023 passed by the learned National Company Law Tribunal Court- I, Mumbai Bench in I.A. No. 2157 of 2021 in C.P (IB) 1633 (MB) 2019; (b) pending the hearing and final disposal of the Appeal, stay the operation, effect and implementation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 wisdom of CoC cannot be used to defeat rights and claims of other creditors/stakeholders. The Operational Creditors are lifeline of the Corporate Debtor and treatment of such Creditors could adversely affect functioning of various industries. The market value of the assets of the Corporate Debtor is approximately six times to the amount proposed to be paid by the SRA under the Resolution Plan. Adjudicating Authority has failed to apply its mind to the relevant facts and circumstances. 53. Appellant has prayed for setting aside the order dated 23.06.2023. Comp. App. (AT) (Ins.) No. 1226/2023 54. This appeal by 58 Appellants have been filed challenging the order dated 23.06.2023, approving the Resolution Plan. 55. In the CIRP of the Corporate Debtor, the claim of Financial Creditors and Operational Creditors were filed. The cumulative claim of the Operational Creditors, including workers, employees was more than Rs. 10.74 Crores. In the Resolution Pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal 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 noticed by the Adjudicating Authority in the impugned order, which itself has suggested that 13.06.2021 was the date of expiry of extended period of CIRP. Application for exclusion of time as filed on 10.06.2021, no order was passed by the Adjudicating Authority, extending the period of CIRP. Thus, the entire process of approval of Resolution Plan, so held after expiry, is in clear violation of IBC and CIRP Regulations. It is submitted that Appellant(s), were put behind the bar, much before the commencement of CIRP and Appellant No.1 was released on 06.03.2023, after the order was reserved by the Adjudicating Authority on the Plan approval Application. The RP had no access to the Office of the Corporate Debtor and the documents, since they were attached in the year 2017-18 itself by the EOW and subsequently by ED, all assets of the Corporate Debtor were attached by Provisional Attachment Order, which was confirmed on 05.08.2019. The Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 comply with the law. 61. Shri Abhijeet Sinha, learned Senior Counsel for the PR submits that the RP has prepared the Information Memorandum on the basis of attachment orders available from the Directorate of Enforcement. The Suspended Directors being unavailable, could not provide any inputs or documents. It is submitted that the RP conducted the proceedings in accordance with the IBC and CIRP Regulations. The two Valuers were appointed as per Regulation 35 of the CIRP Regulations, who have submitted their Report. No objection at any point of time was filed by the Appellant before the Adjudicating Authority and IA No.2423 of 2023 was filed by the Appellant belatedly on June 7, 2023, challenging the approval of Resolution Plan, when hearing on Application IA No.1950 of 2022 were already heard and reserved on 22.02.2023. The RP has no information of documents to believe that properties referred to by the Appellant in the Appeal were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 development potential is intangible assets of the Corporate Debtor. In the Application filed by the SRA before the Stock Exchange, the value of the CD was shown as Rs.3000 crores. 64. The learned Counsel for the parties have also placed reliance on various judgments of this Tribunal as well as Hon'ble Supreme Court. Company Appeal (AT) (Insolvency) No. 1142 of 2023 - Shirish Deepak Kulkarni Vs. Manoj Kumar Agarwal, Resolution Professional of D.S. Kulkarni Developers Ltd. & Ors. 65. We have heard Shri Krishnendu Datta, learned Senior Counsel appearing in IA No.5185 of 2023; Shri P. Nagesh, learned Senior Counsel appearing for the Appellant; Shri Abhijeet Sinha, learned Senior Counsel for the RP and Shri Neeraj Kishan Kaul and Shri Arvind Nayar, learned Senior Counsel appearing for the SRA. 66. Learned Counsel for the Appellant challenging the order dated 23.06.2023 submits that in the Resolution Plan approved by the CoC, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 right in the assets, which do not really belong to the Appellant. 69. IA No.5185 of 2023 has been filed by the Toyota Financial Services India Ltd. ("TFSIL"), who claimed to have extended credit facility of Rs.103.60 crores to DSK Motors Pvt. Ltd. ("DSK Motors"), in which, the Appellant was the Director. It is a case of the Toyota Financial Services India Ltd. that to secure the credit facility, the Appellant mortgaged the personal properties in favour of TFSIL. Shri Krishnendu Datta, learned Senior Counsel has referred to the Memorandum of Entry for deposit of Title Deeds dated 29.04.2017 as well as Memorandum of Entry for deposit of Title Deeds dated 20.01.2018, by which the Appellant mortgaged immovable property including Survey No.48 and 49 of Village Fursungi. DSK Motors is currently undergoing liquidation. The Resolution Plan has been approved, in which Survey No.48, Hissa No.1/C/2 and Survey No.49, Hissa No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 grievance. The Appellant has never approached the NCLT also raising any grievance. All contentions are sought to be raised in this Appeal for the first time. Respondent No.1 was never shown the purported Sale Deed or any documents, hence, Respondent No.1 had justified reason to believe that property was owned by the Corporate Debtor, as the same was clearly mentioned and attached by ED as per order dated 14.02.2019. The RP has acted in best interest of the CoC and the Corporate Debtor and conducted the exercise as is where is basis. 73. Shri Arvind Nayar, learned Senior Counsel appearing for SRA submits that the Partners of the Appellant Firm were Deepak Kulkarni and Hemanti Kulkarni, who were directly responsible of the precarious state of financial affairs of the Corporate Debtor. The Appellant cannot be held to be entitled to challenge the approval of Resolution Plan. The interest of the Corporate Debtor for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 Central Bank has filed its claim during CIRP. The lease was never terminated, it is only in the Resolution Plan the building has now been transferred. The building cannot be owned by the lessor. 76. The learned Counsel for the RP replying to the submissions of the Appellant, submits that as per the Lease Deed dated 24.09.2008 executed by the Corporate Debtor with regard to Survey No.53, 54, 55 and 56 at Village Fursungi, the Appellant was required to pay yearly rent of Rs.1 crore. The Appellant has continuously defaulted in payment of rental amount, since April 2013 to till date. The total outstanding rent against the Appellant is Rs.10.50 crores. The Appellant was also liable to pay interest with delayed payment on rentals. The Lease Deed provided that in event, rental is due fore more than 180 days, the Corporate Debtor shall be entitled to re-enter the property. The RP has issued a notice dated 09.10.2020 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Resolution Professional's decision rejecting their claims, it was incumbent on the Adjudicating Authority to decide the application prior to approval of the Resolution Plan. Appellants who had given their life savings for allotment of flat and having paid 90% consideration rejection of the claims by the Resolution Professional was wholly illegal and unsustainable. Adjudicating Authority failed to consider the interest of the flat purchaser which is paramount. 81. Counsel for the Resolution Professional replying the submissions of the Appellants contended that the claims of the Appellants were rejected since there were no supporting documents provided except allotment letters by the Corporate Debtor. No amount was received in the books of accounts of the Corporate Debtor. It is further submitted that the claims of some of the Appellants were rejected since it was on the basis of the agreement mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. 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 Schedule II (a) of the Agreement dated 30.06.2017 by executing a Development Agreement dated 31.12.2013. 'DSK Global Education & Research Limited' being land owner also was a part of the Agreement. Allotment of flats to the Appellants cannot be denied by the Resolution Professional. Appellants being unaware of the CIRP process could not file the claim before the Resolution Professional within time and claims could be filed by the Appellants only in March 2023 which was rejected by the Resolution Professional vide e-mail dated 03.04.2023 on the ground that plan has been approved by the CoC on 13.08.2021, hence, claim cannot be considered. Appellants filed an IA before the Adjudicating Authority which too was rejected against which Appellants filed an appeal before this Tribunal which was dismissed by order of this Tribunal dated 21.02.2024 passed in Company Appeal (AT) (Insolvency) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebuyers. 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 & Company Appeal (AT) (Insolvency) No. 1385 of 2023:- 88. We have heard Shri Gaurav S. Sethi, Shri Varun Garg and Shri Harsh Pandya, Learned Counsel for the Appellants in Company Appeal (AT) (Insolvency) No. 1361 of 2023 and Shri Kunal Cheema, Learned Counsel for the Appellant in Company Appeal (AT) (Insolvency) No.1385 of 2023. Shri Abhijeet Sinha, Learned Senior Counsel for the Resolution Professional, Shri Arvind Nayar, Learned Senior Counsel for the Successful Resolution Applicant and Shri B.P Singh, Learned Counsel appeared for the Bank of Maharashtra. 89. Counsel for the Appellants submits that the Appellants were allotted the flats in the Project- 'DSK Madhukosh' situated in Village Mohill, Tal Kurla, Sub-District Bandra, Mumbai. The allotment letters itself mentioned that Appellants have paid the entire consideration and they have also agreed to pay Stamp Duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants 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 Appellants submits that the Appellants have failed to attach any proof of actual payments made to the Corporate Debtor. Payments made by the Appellants were not reflected in the books of accounts of the Corporate Debtor, therefore, the Resolution Professional was constraint to reject the claim. Only such amount which are raised under any transaction or purchase agreement would have affect the commercial borrowing when amount is paid to the Corporate Debtor and reflected in the books of account of the Corporate Debtor. Admission made before the RERA Authority on behalf of the Corporate Debtor was only in respect of one of the Appellants. It is submitted that the homebuyers have approved the Resolution Plan and miniscule minority cannot object the same. 92. Counsel for the Successful Resolution Applicant also refuted the submissions of the Appellants and submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led 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 based on commercial wisdom of the CoC. Company Appeal (AT) (Insolvency) No. 1226 of 2023:- 97. We have heard Shri Krishnendu Dutta, Learned Senior Counsel for the Appellants, Shri Abhijeet Sinha, Learned Senior Counsel for the Resolution Professional and Shri Arvind Nayar, Learned Senior Counsel for the Successful Resolution Applicant. 98. Appellants 58 in numbers are employees of the Corporate Debtor whose claim in the CIRP was admitted. Appellants claim was accepted by Rs.10.74 Crores and they have been proposed an amount of Rs.9.89 lacs in the Resolution Plan which is 0.97%. There is no fair or equitable treatment to the Appellants. It is submitted that the payments to the related party debenture holders, debenture holders, fixed deposit holders, banks and financial institutions ranges from 100% to 66.47% whereas employees are shabbily treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 I, Manoj Kumar Agarwal, an Insolvency Professional enrolled with IIIPICAI and registered with the Board with registration number IBBI/IPA-001/IP-Poo714/2017-18/11222, am the Resolution Professional for the Corporate Insolvency Resolution Process (CIRP) of DS Kulkarni Developers Limited (DSKDL). 2. The details of the CIRP are as under: Sl. No. Particulars Description 13. Date of Approval of Resolution Plan by CoC 13.08.2021 14 Date of Filing of Resolution Plan with Adjudicating Authority 18.02.2022 15 Date of Expiry of 180 days of CIRP On March 12, 2020, the RP had filed an application for extension of 90 days and the same was granted by Hon'ble NCLT. The RP further filed exclusion applications twice on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys 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 submits that time granted by this Bench to complete the Resolution Process expired, however the CIRP could not be completed. Hence, they require extension of another two days' time to complete the Resolution process. Having considered the submission of the Counsel and taking note of peculiar circumstances, this Bench in exercise of power enshrined in Rule 11 of NCLT Rules, 2016, grant Two more days' time from 22.05.2021 till 24.05.2021 to complete the Resolution Process. With the aforesaid observation, IA 1563 of 2022 is allowed and disposed of." 107. Whether the above order can be read to mean that CIRP period stood extended from 13.06.2021 till 24.08.2021 or the orders cannot be treated to any extension of CIRP period is a question to be answered. 108. There is no dispute between the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Report was also submitted on 23.06.2021. It is useful to notice the Addendum Report dated 23.06.2021 submitted by Puneet Tyagi, where fair value of the Corporate Debtor has been found as Rs. 798,32,19,714/- and liquidation value has been noticed as Rs. 557,14,44,655/-. The Addendum Letter dated 23.06.2021 has brought on record by the Appellant as Annexure A-3, is as follows: "To Mr. Manoj Kumar Agarwal, Resolution Professional M/s. D.S Kulkarni Developers Limited - Under CIRP Subject: Submission of Addendum Report Dear Sir, This letter bears the reference of my engagement as asset valuer in the matter of corporate insolvency resolution proceedings of M/s. D.S Kulkarni Developers Limited as per IBC - 2016. I am pleased to submit the addendum report to the initially submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fair value and liquidation value in following manner: "Resolution Professional Mr. Manoj Kumar Agarwal D S KULKARNI DEVELOPERS LTD REGD. OFFICE: 1187 /60 J M ROADSHIVAJINAGAR PUNE MH 411005 IN Date: 06/10/2020 Dear Sir, In accordance with our appointment letter dated 08st November 2019, we enclose our report on the fair & liquidation valuation of specified assets of D S KULKARNI DEVELOPERS LTD (or the "Company") as on 26th September 2019 ("Valuation Date") in accordance with regulation 27 and 35 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified 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, land, and building. 116. When we look into the valuation working submitted by valuer, it is clear that in the description of asset value, Puneet Tyagi has taken total land area of property as 233.27 acres, which according to Report as per the PMLA order provided to the valuer. Page 82 of the Report is as follows: "(a) CIVIL Properties: Specific for Land (DSK Dreamcity -Village Pharsungi, Pune, Maharashtra) ▪ The physical inspection of land has been carried out on 30st January 2020. ▪ At the time of ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 learned counsel for the parties. The present appeal under Section 62 [ "62. Appeal to Supreme Court.-(1) Any person aggrieved by an order of the National Company Law Appellate Tribunal may file an appeal to the Supreme Court on a question of law arising out of such order under this Code within forty-five days from the date of receipt of such order.(2) The Supreme Court may, if it is satisfied that a person was prevented by sufficient cause from filing an appeal within forty-five days, al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 also relied on the Judgment of this Tribunal in Comp. App. (AT) Ins. No. 1633/2023, decided on 16.02.2024 in the matter of `CoC through its Representative, Jaga Ath Kar' Vs. `Anil Tayal, Resolution Professional of Horzion Buildcon Ltd.'. In the above case, the appeal was filed against an order of the Adjudicating Authority by which the prayer made in I.A. for rejecting the Valuation Report obtained by RP was considered. This Tribunal has noticed the respecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition, 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 defined, recognised and conferred, cannot be equated with the jurisdiction in equity that operates independently of the provisions of the statute for the reason that the adjudicating authority - NCLT, which is a body owing its existence to the Code, must abide by the nature and extent of its jurisdiction as defined therein. Regarding the appointment of the OL for getting valuation of the assets, the stand of Mr Divan was that it was not in line wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd/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, which is reproduced hereinbelow provides as follows: "All that piece and parcel of land admeasuring in the aggregate 89.35acres (i.e. 3,61,610 square meters) or thereabouts situate, lying and being at Village Bavdhan, Taluka Haveli and District Pune which includes but not limits the following survey numbers" Sr. No. Survey No 10 326/1 In addition to the same, various lands which do not belong to the corporate debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 offences committed by Corporate Debtor prior to initiation of CIRP, fully entitled the assets of the Corporate Debtor to be dealt in the Resolution Plan. 132. In view of the forgoing discussions, we do not find any ground to interfere with the order, approving the Resolution Plan on the ground advanced by the Appellant. 133. Comp. App. (AT) (Ins.) No. 63/2024, deserved to be dismissed. Comp. App. (AT) (In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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 the Survey Nos. which are claimed by the Appellant. 137. It is further relevant to notice that all the land of Fursungi which is included in special Township Project have been attached by Directorate of Enforcement which was subsequently confirmed on 05.08.2019. The copy of the order dated 05.08.2019 has been brought on the record in the reply filed by Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... karand Kulkarni (niece of Deepak S. Kulkarni) from Agriculturist Sale of the same Land By Shilpa 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 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emanti Kulkarni 30,90,530 Ambiance 2,43,444 Total 13,03,38,768 2 Swarupa Kulkarni Niece 11,43,03,125 DSKDL 7,00,11,980 Saptashrungi Oil Mills PvtLtd 73,82,500 DSK MotorsPvt Ltd 53,91,563 GrowrichAgro Forestry Pvt Ltd 55,24,875 Skylap Marketing PvtLtd 36,83,250 D S Kulkarni & Associates 47,03,750 D S Kulkarni & Company 97,70,000 Hemanti Kulkarni 82,35,207 Total 11,43,03,125 3 Shilpa Makrand Kulkarni Niece 15,25,05,469 DSKDL 8,71,56,516 Skylap Marketing Pvt Ltd. 1,33,33,125 Saptashrungi Oil Mills Pvt Ltd 59,15,000 D S Kulkarni Const Pvt Ltd 50,41,985 DSK WorldmanProj . Pvt Ltd 22,50,703 D S Kulkarni & Associates 44,99,203 D S Kulkarni & Company 3,28,99,437 Hemanti D Kulkarni 14,09,500 Total 15,25,05,469 4 Jyoti Deepak Kulkarni (dead) Wife 4,46,87,000 DSK Motors Pvt Ltd 21,50,000 DSKDL 3,37,45,000 Ambiance Ventures Estates & Dev Pvt Ltd 32,48,750 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lands are in the name of the Corporate Debtor." 144. As noted above, the land which is in the name of Appellant is also part of the integrated Township Project, which Project was got approved by the Corporate Debtor from State of Maharashtra. There is no dispute that integrated Township Project belongs to the Corporate Debtor, which is part of the assets of the Corporate Debtor and we do not find any flaw in Resolution Plan dealing with the entire land of integrated Township Project, which also consists of above 7.33 acres of land, which is in the name of the Appellant. 145. As noted above, the land was purchased from the consideration of the Corporate Debtor and its sister companies. Taking overall facts and circumstances into consideration, we are not persuaded to accept the submission of the Appellant that the land 7.33 acres of land situated at Fursungi, Pune be deleted from the Resolution Plan. We thus are satisfied that no error has been committed in dealing the aforesaid 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruct building/s and structure/s standing thereon for the period of 99 years and at the rent and upon the terms and conditions recorded therein." 150. The lease was granted on payment of yearly rent of Rs.1 crore. The above terms and conditions are contained in Clause-1, which is as follows: "1. In consideration of the rent hereby reserved and of the terms and conditions, covenants and Agreements herein contained and on the part of the Lessee to be observed and performed the Lessor doth hereby demise Unto the Lessee ALL THAT said piece of land/s situate at S.Nos. 53,54,55 & 56 (off Pune Solapur Highway) at Village Fursungi, Tal. Haveli Dist. Pune particularly described in the Schedule 1,2, 3 & 4 (hereafter for brevity's sake referred to as "the demised land/s") hereunder written together with the right to construct structure/s and building/s thereon and shown in blue wash delineated by red coloured boundary line on the plan thereof hereto annexed TO HOLD the demised land unto Lessee and it's administrators 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudice to any right of action or remedy of the Lessor in respect of any antecedent breach of any of the covenants on the part of the Lessee. The term for payment of interest on the arrears of rent shall not prejudice or affect the right of re-entry herein contained. 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 demised premises." 153. Under Clause 6, the Lessee was entitled to mortgage of the demised land/ proposed buildings in favour of Financial Institutions/ Banks for obtaining finance/ loans for construction of building/s, structure/s etc. The Lessee entered into the possession of land and was been paying the yearly rent payable on each quarter till 2013. 154. The lease specifically empowered the Lessor to re-enter on the breach of Covenants, after giving notice in writing, under which Lessee is to make good such breach, failing which Lessor shall be entitled to re-enter. 155. The pleadings on record 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the Appellant. The RP in its affidavit filed in support of reply, has made various pleadings in paragraphs 3, 4, 5, 6, 7 and 8 of the reply. It is useful to extract paragraph 3, 4, 5, 6, 7 and 8 of the reply, which are as follows: "3. At the outset I hereby briefly set factual background relating to the claim made by the Applicant: a. A land parcel situated at Fursungi having survey Nos.53 to 56 ("said Land") was leased by the Corporate Debtor to one DSK Global Education and Research Private Limited ("DSK Global") by way of a lease deed dated September 25, 2008 for a period of 99 years, starting from July 1, 2008 (Lease Deed"). Under the Lease Deed, DSK Global was required to pay the Corporate Debtor a yearly rent of 1,00,00,000/-. b. DSK Global constructed a college building on the said leased parcels of land. The said college was functional till around the year 2017 and has been vacant and non-operational thereafter. The building however continues to stand on the said Land. c. Clause 3 of the Lease Deed, which has also 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 ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the stated discussion is recorded. On a bare perusal of the same, it is clear that there was no discussion of the said Land being excluded from the list of the Corporate Debtor's assets. The discussion was simply about the feasibility of deploying security guards at the said Land. 8. I say that the Applicant had raised the issue of the said Land being excluded from the list of assets of the Corporate Debtor in its email dated April 20, 2021, to which I responded on April 22, 2021. In my response, I had specifically clarified that the said Land in question had been included in the list of assets of the Corporate Debtor. However, that as per the Lease Deed the Corporate Debtor cannot re-possess the said Land without paying for the cost of construction of the building thereon. A copy of this letter dated April 22, 2021 is annexed hereto and marked as Exhibit C." 159. The above affidavit of RP clearly states that in event Corporate Debtor wishes to terminate the Lease Deed, the Corporate Debtor would be required to pay the Appellant, cost of construction of the building standing thereon, which have been an additional expense during the ongoing CIRP. Hence, the RP has not te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess should not be allowed for related firms through PUFE transactions; and" 161. The question to be answered in the Appeal is as to whether by the aforesaid Clauses of the Resolution Plan submitted by the SRA, the rights of the Appellant in the Lease Deed, can be cancelled/ terminated without terminating the Lease Agreement, as per the Clauses of the Lease Deeds. 162. As we have already noticed above, the RP has categorically pleaded before the Adjudicating Authority that termination of Lease Deed has not been done by the RP because, in case of termination, the Corporate Debtor was liable to pay the cost of construction, which would have burdened additional cost in the CIRP. When the Lease Deed has not been terminated by the RP, whether the SRA by the Clauses as indicated above could have terminated the Lease Deed, denying the consequence of Clauses of the Lease Deed as contemplated therein. The Appellant's case is that the Appellant has spent more than Rs.262 crores for construction of the building and in paragraph 2.6, it has stated the amount, which also include the loan amount of Rs.100 crores from Central Bank of India. It is useful to extract paragraph 2.6 of the synopsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the subsidiaries/ related entities of Corporate Debtor, cannot be made subject matter of the Resolution Plan. The learned Counsel placed reliance on Section 18(1)(f) and (g) and Explanation, which is as follows: "18. Duties of interim resolution professional. - (1)(f) take control and custody of any asset over which the corporate debtor has ownership rights as recorded in the balance sheet of the corporate debtor, or with information utility or the depository of securities or any other registry that records the ownership of assets including - (i) assets over which the corporate debtor has ownership rights which may be located in a foreign country; (ii) assets that may or may not be in possession of the corporate debtor; (iii) tangible assets, whether movable or immovable; (iv) intangible assets including intellectual property; (v) securities including shares held in any subsidiary of the corporate debtor, financial instruments, insurance policies; (vi) assets subject to the determination of ownership by a court or authority; (g) to perform such other duties as may be specified by the Board. Explanation. - For the purposes of this [section, the term "assets" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ease are consistent with the ownership in the building being with the lessees in which the lessors had no right while the lease subsisted. In the case of Narayan Das Khettry v. Jatindra Nath Boy Chowdhury(1) the Privy Council approved the observations of Sir Barnes Peacock in the case of Thakoor Chunder Poramanick v. Ramdhone Bhuttacharjee to the following effect: "We have not been able to find in the laws or customs of this country any traces of the existence of all absolute rule of law that whatever is affixed or built on the soil becomes a part of it, and is subjected to the same rights of property as the soil itself." In the case of Vallabhdas Naranji v. Development Office,),, Bandra (3) the Privy Council once again referred to Sir Barnes Peacock's observation as stated above. The Privy Council also quoted the following observation of Couch, C. J., in the case of Narayan v. Bholagir (4):........... We cannot, however, apply to cases arising in India the doctrine of the English law as to buildings, viz., that they should belong to the owner of the land. The only doctrine which we can apply is the doctrine established in India that the party so building on another's lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Infratech Ltd. v. Axis Bank Ltd., (2020) 8 SCC 401 : (2021) 2 SCC (Civ) 334] has also been referred to submit that therein too, this Court disallowed JIL's assets from being utilised for securing the dues owed by JAL." 167. The Hon'ble Supreme Court after considering the submissions of the parties, in paragraph 240, 241 and 241 laid down following: "240. We may observe that the decisions cited by the parties do not require much discussion. The principles in the cited decisions including those in Embassy Property [Embassy Property Developments (P) Ltd. v. State of Karnataka, (2020) 13 SCC 308] that the assets belonging to a third party cannot be utilised towards resolution of a corporate debtor remain fundamental and beyond cavil. Equally, the reference to the maxim actus curiae neminem gravabit, and to the decision in ONGC [ONGC v. Assn. of Natural Gas Consuming Industries, (2001) 6 SCC 627] has been rather unnecessary because the said principle is essentially employed for the purpose of restitution and putting a party in the position where he would have been but for intervention or lapse of the Court. [ This principle has been succinctly explained by this Court in South Eas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OnLine NCLT 1429] placing this amount in the asset pool of JIL is set aside." 168. In the above case, the Hon'ble Supreme Court categorically held that stipulation in the Resolution Plan in the Resolution Plan concerning its usage of the amount of Rs.750 crores, which was the asset of the holding Company, cannot be approved. 169. The learned Counsel for the Appellant has also relied on the judgment of this Tribunal in Greater Noida Industrial Development Authority vs. Roma Unicon Designex Consortium - (2023) SCC OnLine NCLAT 1612, wherein in paragraphs 44, following was held: "44. ....Thus, assets of the Corporate Debtor and assets of subsidiary of the Corporate Debtor have been separately recognised and dealt with. Section 18, sub- section (1), Explanation further clarifies the law when it says that assets shall include the assets, meaning thereby assets of the Corporate Debtor, shall not include assets of any Indian subsidiary. In the CIRP of Corporate Debtor, thus, assets of subsidiary Company, i.e., Earth Towne were not to be taken into consideration or treated as the assets of the Corporate Debtor. As regards, the law relating to resolution process of a corporate person is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leased, duly given by one party to the other." 171. The facts noted above, clearly indicate that lease was never terminated during the CIRP for the reasons as explained by the RP himself in the affidavit as noted above. Whether without terminating the lease, the SRA can extinguish the rights of the Lessee, as has been done by Clause 13.3 to 13.6 of the Resolution Plan extracted above? The learned Counsel for the Appellant has also relied on the judgment of this Tribunal in UCO Bank vs. Sudip Bhattacharya Resolution Professional of Reliance Naval & Engineering Ltd. - (2021) SCC OnLine NCLAT 3047, where in paragraph 11 of the judgment, following was laid down : "11. The intent of the Code was not to terminate Agreements that have created legal rights in favor of third parties without adhering to due process of Law. Such a termination of legally binding Agreements would be in violation of the provisions of Section 30(2)(e). The Hon'ble Supreme Court in a Catena of Judgements has laid down that margin money acquires the character of 'Trust' when it is given against the Bank Guarantee issued to the beneficiary and asset held under 'Trust' cannot be considered as an asset of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he interim order [BMW Financial Services (P) Ltd. v. S.K. Wheels (P) Ltd., 2019 SCC OnLine NCLT 28273] of NCLT. 30. While in the present case, the second issue formulated by this Court has no bearing, we would like to issue a note of caution to NCLT and Nclat regarding interference with a party's contractual right to terminate a contract. Even if the contractual dispute arises in relation to the insolvency, a party can be restrained from terminating the contract only if it is central to the success of CIRP. Crucially, the termination of the contract should result in the corporate death of corporate debtor. In Gujarat Urja [Gujarat Urja Vikas Nigam Ltd. v. Amit Gupta, (2021) 7 SCC 209 : (2021) 4 SCC (Civ) 1] , this Court held thus : (SCC pp. 309-10, paras 176-177) "176. Given that the terms used in Section 60(5)(c) are of wide import, as recognised in a consistent line of authority, we hold that NCLT was empowered to restrain the appellant from terminating PPA. However, our decision is premised upon a recognition of the centrality of PPA in the present case to the success of CIRP, in the factual matrix of this case, since it is the sole contract for the sale of electricity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice the submissions advanced by the learned Counsel for the SRA opposing the submission of the Appellant in the present Appeal. It is submitted that the Appellant has not filed any objection or any claim before the Adjudicating Authority or with the RP and having not filed any Application before the Adjudicating Authority, it cannot be allowed in this Appeal to challenge the approval of Resolution Plan. It is sufficient to notice that filing of claim did not arise by the Appellant before the RP, since the lease was never terminated, giving any entitlement of cause to the Appellant. Further, Directors of the Corporate Debtor were all in prison, much before the commencement of CIRP and were released in November 2022 and March 2023. The Directors of the Corporate Debtor, who were also Promoters of the Corporate Debtor, could not participate in the CIRP, nor had an opportunity to appear as Suspended Directors/ Promoters of the Corporate Debtor. 176. The Resolution Plan extinguishes the right of the Appellant to the building on the lease land. Hence, by approval of Resolution Plan by the Adjudicating Authority, the Appellant can very well file the Appeal in exercise of its right as g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an has sought to do many things indirectly, which cannot be directly done. Clauses 13.4, 13.5 and 13.6 of the Resolution Plan are contrary to the provisions of law and violates Section 30, sub-section (2) (e) of the IBC and are unsustainable. We, thus, are of the view that Appellant - DSK Global Education and Research Private Limited is entitled for relief in the Appeal. Company Appeal (AT) (Insolvency) No. 1307 of 2023 - DS Kulkarni and Company Vs. Mr. Manoj Kumar Agarwal, Resolution Professional of D.S. Kulkarni Developers Limited and Ors. 179. The Appellant, which is a Partnership Firm and sister concern of the Corporate Debtor has questioned inclusion of property owned by the Appellant in the Resolution Plan. The Appellant's case is that in the CIRP of the Corporate Debtor, only assets of the Corporate Debtor can be included and third party assets, including the assets of the subsidiaries, cannot be included in the CIRP of the Corporate Debtor. The Appellant's case is that by two Sale Deeds executed on 07.06.2002 by Shivaji Ingale and Shivaji Vithalrao Ingale conveyed 20.5 R each of Survey No.326/1 at Village Bavdhan. The Appellant's case is that the Appellant's name is recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) Cultivable Land Dry 0.940 Irri. Total A 0.90.40 B) Non Cultivable Land (Po. Kha) Class A Class B Total B 0.00.00 Total A+B 0.90.40 Assessment 5.40 Judi Special Ass. (6334) Outstanding Mutations - No. Last Mutation No.6334 Date: 30.06.2018 Boundaries and Land Measurement Marks Old Mutations: (1273), 1370, 1584, 1627, 1967, 2006, 3067, 3203, 3204, 3986, 5922, 5969, 6117 This Village Form No.7 is digitally signed on date 23/06/2019: 08:42:25 PM and since data of Village Form 12 is self certified, no signature stamp is required on 7/12 Record. 7/12 Download Date: 06.07.2023; 13:33:05 AM. A No.2506100001033402 should be used on the website https://digitalsatbara.mahabhumi.gov.in/DSLR for valid verification." 181. We may now notice the relevant Appendix IV, where the description of the properties have been mentioned, where at Item No.11, land situated at Village Bavdhan, has been included aggregating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plete copy is not annexed herewith. Therefore, I crave leave to file the complete copy of the said Order as and when directed by this Hon'ble Tribunal." 183. Provisional Attachment Order was subsequently confirmed by the Adjudicating Authority under the PMLA Act. Provisional Attachment Order mentions at Sl. No.40, Survey No.326/1, which was in the name of Shirish D Kulkarni. It is relevant to notice Item No.40 of the Schedule, which is part of the order dated 05.08.2019, which is as follows: Sl No. Name of the owner Place where property situated Nature of property Description of the property Area Documents details Value Rs. in Lakhs Remarks 40. Shirish D Kulkarni Bavdhan Land Survey No.326/1 at Village Bavdhan Tal. Mulshi Dist.Pune Area 0 H 39 R 0 H 39 R Sale Deed 860/2015 22/01/2015 11728/2015 & 7/12 Extract 497.65 Value as per Sale 184. The Provisional Attachment Order did include area of Survey No.326/1, area 39 R in the name of Shirish D Kulkarni. The order dated 05.08.2019 referred to Bavdhan property, in which area of 41 R is mentioned in the name of D.S. Kulkarni Developers Ltd., which is at Item Sl. No.10, which is as follows: Sl No Name of the owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of Shirish D Kulkarni and area of 41R in the name of Corporate Debtor, whereas the area, which is recorded in the name of Appellant 20.5 and 20.5 till continues in Extract 7/12 and is different area from the area, which was attached from Shirish D Kulkarni and the Corporate Debtor. We have already noticed that Sale Deed, which was executed in favour of the Appellant on 07.06.2002, clearly mentions the total area of 326/1 admeasuring an area of about 1 H 21.4 R, which is clear from the following part of the Sale Deed, executed by Shivaji Vithalrao Ingale, which is as follows: "SHRI SHIVAJI VITHALRAO INGALE, Age : Adult, Occupation: Business, Residing at-S. No.326, H. No.1, Bavdhan Budruk, Taluka - Mulshi, Dist. Pune Hereinafter referred to as the "VENDOR" (which expression unless repugnant to the context or meaning thereof shall mean and include his heirs, administrators, executors and assigns etc.) THE PARTY OF FIRST PART M/S. D. S. KULKARNI & COMPANY, A registered Partnership firm having its registered office at 1187/60 J.M. Road, Shivajinagar, Pune 411 005, through its one of the Partner Mrs. Hemanti Deepak Kulkarni, Age : about 41 years, Occupation Bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt and this Tribunal, while considering the Company Appeal (AT) (Insolvency) No.1308 of 2023, which annunciation, fully supports the submission of the Appellant. 188. Learned Senior Counsel appearing for Respondent Nos.2 to 4 in their reply sought to raise objection on the ground of delay and latches. The Partners of the Appellant Deepak Kulkarni and Hemanti Kulkarni were confined to prison and could be released only in November 2022 and March 2023. Partners of the Appellant were not part of the CIRP. The fact that they have filed the Appeal challenging the order approving the Resolution Plan including the assets of the Corporate Debtor, cannot be thrown out on the ground of delay and latches as contended by Respondent Nos.2 to 4. The learned Senior Counsel for Respondent Nos.2 to 4 has also referred to the orders passed by this Tribunal as well as the Hon'ble Supreme Court, where the Appeals filed by the Appellant in this Tribunal and Civil Appeal in the Hon'ble Supreme Court were dismissed. The learned Counsel for the Appellant has referred to the Appeal filed by Deepak Kulkarni challenging the order of admission, which was dismissed by this Tribunal by refusing to condone the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments to prove payments to the Corporate Debtor. Appellants have filed their claims immediately after publication. The claims were filed by the Appellants in October, 2019 and were entertained but rejected on 25.05.2021. In the Appeal, Appellants have filed the list of creditors as issued by the Resolution Professional dated 25.05.2021. The rejection of the claims of the Appellants were basically on two grounds. Firstly, apart from allotment letters issued by the Corporate Debtor no supporting documents have been provided to prove that the payments have been received in books of the Corporate Debtor. The entry with regard to Appellant No.1 in the list of creditors is as follows:- " Claim is rejected as claim is based on just the allotment letter and no other supporting documents provided and amount is also not received in the books of accounts of the Corporate Debtor " 192. The claim of some of the Appellants was rejected on the ground that they have made the claim on the basis of Registered Agreement made with 'DSK Global Education and Research Ltd.' and no supporting documents for payment has been filed. 193. We need to first notice the allotment letters issued by the Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 APRIL-2021 or completion of flat or possession is flat whichever is earlier by paying the balance consideration, required duties, charges, taxes and expenses within the prescribe period. The possession of flat will be handed over after registration of agreement on completion of formalities of required documentations. 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 D.S.Kulkarni Developers Ltd. President" 194. Some of the allotment letters have been issued by 'DSK Global Education and Research Limited'. One of the allotment letters dated 29.04.2017 issued to Mr. Karan Jethamalji Jain, as follows:- "Date: 29.04.2017 To, Mr. Karan Jethamalji jain C-101 Achal leela Khoshboo, Soft Road, Vishalnagar Near Nangude School Dimple Nilakh Pune-27. ALLOTMENT LETTER We have accepted you ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal consideration, amount paid, allotment date as well as issuance of allotment letters have been mentioned. The list contains details of 32 homebuyers which included all the Appellants. 196. 'DSK Global Education and Research Limited' is a Pvt. Ltd. Company consisting of the directors who were also directors of the Corporate Debtor. We have already noticed above that the Corporate Debtor with its sister concern, firms, partnership firms all engaged in Real Estate Development. 'DS Kulkarni and Company' and 'DS Kulkarni Associates' were partnership firms which were registered much prior to incorporation of the Corporate Debtor and was carrying business. The financial statement which was filed by the Resolution Professional indicates that amounts were payable to 'DS Kulkarni and Company', 'DS Kulkarni Associates' and 'DSK Global Education and Research Limited' from the Corporate Debtor. Records indicate that the advances were also received by the Corporate Debtor from time to time from 'DS Kulkarni & Company' and 'DS Kulkarni Associates' for purchase of land and for carrying out its activities. In Company Appeal (AT) (Insolvency) No. 1308 of 2023 i.e. Appeal filed by 'DSK Global Edu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Kulkarni, Hemanti Sukharam Kulkarni and Sirish Deepak Kulkarni who were all directors of the corporate debtor. Rejection of the claims was on the foundation that no payments have been proved to the corporate debtor. When the corporate debtor itself has acknowledged the payments by issuing allotment letters, it was not open for the Resolution Professional to take stand that no payments have been made. Acknowledgment of the corporate debtor in the allotment letters is sufficient to bind the corporate debtor including the Resolution Professional. Along with the rejoinder-affidavit, copy of the common compilations dated 17.04.2022 filed by the Appellants has been brought on record which contains bank statements and other details to prove the payments to sister company of the corporate debtor. Appellants have also brought on record the materials to prove the payments to 'DS Kulkarni and Company', the partnership firm consisting of directors of the corporate debtor. We have already noticed that the financial statement clearly shows the loan payable to 'DS Kulkarni and Company' by the Corporate Debtor. In the above facts and circumstances, when corporate debtor acknowledges the payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said directions issued by the Resolution Professional, it was mentioned that other relevant documents including any in Clause 2(b) one of the documents mentioned was letter of allotment. The claim filed by the Appellants was in category of letter of allotment and the Resolution Professional took too technical views to reject their claims. Homebuyers who have paid the amount to sister company which was acknowledged by the corporate debtor in the allotment letters cannot be washed out and the homebuyers' claim be rejected. Homebuyers' claims have been rejected by the Resolution Professional taking a technical view that amount is not reflected in the records of the corporate debtor when corporate debtor has itself recognised the payment and which payment is made by the Appellants to sister company i.e. 'DS Kulkarni and Company' for which sufficient evidence was filed before us. We do not approve the action of the Resolution Professional in rejecting the claim of the homebuyers. 199. It is further relevant to notice that after rejection of the claims of the Appellants on 25.05.2021, they filed an IA before the Adjudicating Authority being IA No.1844 of 2021 for acceptance of their cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph 7 of the reply that Appellants had made an agreement with the group entity of the corporate debtor i.e. DSK Global Education and Research Ltd. and payments made to DS Kulkarni and Company on the basis of allotment letter was never deposited or encashed by the corporate debtor and the amount was paid by the allottees to DS Kulkarni and Company, the sister concern of the Corporate Debtor. The fact that amount was not deposited by the corporate debtor or encashed by the corporate debtor cannot be a ground to reject the claim of the Appellants, more so, when corporate debtor itself by issuance of allotment letter has accepted and acknowledged the payments from homebuyers. We, thus, are satisfied that the claim of all the Appellants deserves admission and rejection of their claims by the Resolution Professional is unsustainable. In facts of the present case, Appellants are also entitled to be included in the Resolution Plan as homebuyers whose claims have to be accepted for allotment of house which is to be satisfied by the SRA. Company Appeal (AT) (Insolvency) No.1050 of 2023 & Company Appeal (AT) (Insolvency) No.1053 of 2023:- 202. These Appeals have been filed by the Appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e debtor. Corporate debtor itself has entered into Registered Agreement with the Appellants where payments have to be made to 'DSK Global Education and Research Ltd.'. Present is a case where in the Registered Agreement both 'DSK Global Education and Research Ltd.', Corporate Debtor and the Appellants are party. 204. In the present case, the Appellants could not file the claim since their case is that they were not aware of the CIRP and they came to know the CIRP only in March 2023 which claim was filed and was rejected by the Resolution Professional. Appellants unsuccessfully challenged the order rejecting their claims in this Tribunal. 205. The Appellants in support of their submissions have relied on the judgment of this Tribunal in "Puneet Kaur vs. K.V. Developers" (supra) where this Tribunal has laid down that even if a homebuyer has not filedthe claim and his claim was reflected in the documents and books of accounts of the corporate debtor, it has to be accepted by the Resolution Professional and to be shown in the Information Memorandum. There being Registered Agreement with the Appellants, the said Agreement was not to be ignored by the Resolution Professional. It is fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration of their claims which is raised in the appeal filed challenging the order approving the Resolution Plan. While considering the Company Appeal (AT) (Insolvency) No.1660 of 2023, we have already taken the view that the stand of the Resolution Professional that only those claims were accepted whose payments were reflected in the records of the corporate debtor has not been accepted. Appellants' case in the present case is that in the ledger account of the corporate debtor, payments made by the Appellants have been reflected. Ledger account has been produced by the Appellants in the appeal which is in the name of the Appellant- Piyuja Suresh Sanghvi. At Page 190 ledger states following:- "09. MISS. PIYUJA SURESH SANGHVI Flat at Aanandghan DSK- G 201 Ledger Account 1-Jun-17 to 30-Jun-17 Date Particulars Vch Type Vch No. Debit Credit 25-Jun-17 Flat No. G-201- TOTAL AREA 45.52 METER (45.52*10.764 = 489.97 IE 490 SQ FT.) @ 4677 Journal 6 22,92,000.00 27- Jun-17 Kotak Mahindra Bank A/c. No.3911814759 For VAT Rs. 22920/- & SERVICE TAX RS. 103140/- Payment 13 1,26,060.00 Kotak Mahindra Bank A/c. No.3911814759 For STAMP DUTY &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20,00,000.00 50,00,000.00 70,00,000.00 70,00,000.00 Apr- 17 Opening Balance 50,00,000.00 Jun- 17 (as per details) PIYUJA S. SANGHVI PRIYASH S. SANGHVI BEING LOAN ADJUSTED AGAINST PURCHASE OF FLAT OF G-201 AND G-601 Journal 22,92,000.00 24,04,000.00 46,96,000.00 INTEREST FROM D.S. KULKARNI & CO. BEING INTEREST RECEIVABLE FROM D.S. KULKARNI AND CO. FROM 01.04.2017 TO 30.06.2017 Journal 57,750.00 Closing Balance 50,57,750.00 46,96,000.00 3,61,750.00 50,57,750.00 50,57,750.00 209. The above facts clearly indicate that amount of consideration was adjusted towards the allotment of Flat No. G 201 and Flat No.G 601 which both units are involved in these two appeals, hence, there was sufficient proof on the record that amounts were paid by the homebuyers and their consideration was taken into consideration for allotment and issuance of Registration Agreement. We, thus, are of the view that despite rejection of their claims by Resolution Professional on the ground of delay sufficient materials have been brought on the record in these appeals to take the view that appellants' claims are also ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 consideration. Further, in the present case the claim was filed by the appellants on 09.10.2019 i.e. well within time. Appellants' further case is that they were put in possession of the units and they have been continuing in possession. Appellants have also brought on the record the order dated 05.02.2018 issued by the Maharashtra RERA where undertaking of the corporate debtor was recorded that the Registered Agreement for sale shall be executed. It is useful to notice the order dated 05.02.2018 which is passed by Maharashtra RERA which is as follows : - "Order (5th February, 2018) 1. The complainant is an allottee of a flat bearing No. B 102 admeasuring carpet area of 52.46 sq.mtrs, in building No. B in the building known as known as "DSK Madhukosh" bearing MahaRERA registration No. P51800009465 at Mumbai. 2. This matter was heard today. The complainant has stated that he had booked a residential flat in respondent's project and paid 100% amount to the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 rejecting the IA No. 2157 of 2021 as infructuous. Appellant has brought on record the earlier order passed by the Adjudicating Authority where Adjudicating Authority has directed the IA No.2157 of 2021 and other IAs shall be heard prior to hearing on the Resolution Plan application. On 13.06.2022 when plan approval application being IA No.1950 of 2021 as well as application IA 2157 of 2021 filed by the appellants was listed, following orders were passed:- "IA 1950/2021 This Application is filed for approval of Resolution Plan. It is made clear that the present Application will be heard after disposing of all other pending Applications. Accordingly, the same is adjourned on 20.07.2022. IA 2157/2021 None present for the Applicant in the present Applications. Ld. Senior Counsel appeared for the Respondent/Resolution Professional (RP) submits that affidavit in reply is filed however, hard copies of the same have not yet been placed on record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst 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 to fraudulent, but was genuine steps taken by CD to acknowledge the claim and was a mitigating step to pacify the person from whom money was taken by the Group Entities and the Corporate Debtor. We are, thus, of the clear opinion that allotment letters, which were issued by the Corporate Debtor in favour of the Appellants as Homebuyers, were genuine allotment letters and has rightly acknowledged the payment receipts. Company Appeal (AT) (Insolvency) No. 1223 of 2023 & Company Appeal (AT) (Insolvency) No. 1226 of 2023 : - 215. These two appeals have been filed by the operational creditors and employees questioning the amount proposed to the appellants in the resolution plan. In Company Appeal (AT) (Insolvency) No.1223 of 2023, we have already noticed the amount proposed to the operational creditors as against the admitted amount. In paragraph 7.3 of the appeal, details of the amount, claim admitted and amount received with percentage h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 violation of Section 30(2)(b) of the Code. Although appellants are pleaded that amount is inequitable and unfair and a meagre amount but there being no pleading that the amount is less which they are entitled under Section 30(2)(b). We are unable to interfere with the payouts given to operational creditors/employees in the Resolution Plan. We, thus, are of the view that on the ground as raised by the appellants, the Resolution Plan and the order approving the plan needs no interference. Reliefs, if any, for the Appellants 217. The jurisdiction of Adjudicating Authority and the Appellate Tribunal to interfere with the Resolution Plan approved by the CoC, in exercise of its commercial wisdom, are well settled. The limited jurisdiction as has been recognized by the precedents of the Hon'ble Supreme Court is when the Resolution Plan is in not conformity with statutory requirements of Section 30, sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 220. Now we come to Appeal(s) filed by Homebuyers, i.e., Company Appeal (AT) (Insolvency) Nos.1385, 1050, 1051, 1361 and 1385 of 2023. The claim of the Appellant(s), who were allottees of the different units allotted by the Corporate Debtor clearly sustainable. In the Resolution Plan, the claims of the Homebuyers, whose name have been accepted and admitted, have been proposed to give the units. These Appellant(s), as held by us that their claims also to be accepted and they are also to be given units as given to other Homebuyers, whose claims have been accepted. We direct the SRA to accept the claims of the Appellant(s)/ Homebuyers in the above Appeal(s) and to give them the same treatment ..... 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