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TMI Blog2024 (10) TMI 1466X X X X Extracts X X X X X X X X Extracts X X X X ..... nfrastructure Pvt. Ltd. filed an application under Section 9 as an Operational Creditor against M/s Shubhkamna Buildtech Pvt. Ltd. (Corporate Debtor) bearing C.P. No. IB-1059/ND/2018 before the Adjudicating Authority which was admitted on 26.11.2018. 3. Shorn of unnecessary details, the appellant was the part of the CoC having 1.67 % voting share. The table depicting the voting percentage alongwith the claim of the creditors admitted in each class/entity of the CD is as under : - Name of the Class/Entity Voting Share Claim Admitted (INR) Homebuyers/Allottees 87.6% 536,70,62,437 Merina Commotrade Pvt. Ltd. 1.67% 102,125,000 Canara Bank 0.11% 6,815,374 DHFL 3.51% 215,039,400 Rishi Kapoor 1.82% 111,221,500 UCO Bank 5.16% 316,377,832 Corporation Bank 0.13% 7,920,250 Total 100% 612,65,61,793/- 4. The resolution plan submitted by the SRA was approved by the CoC with an affirmative voting percentage of 87.60%. The detail of the dissenting financial creditors alongwith liquidation value is as under : - Liquidation Value for Dissenting Financial Creditors Particulars of Dissenting Creditor Voting Status Admitted Claim Provided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a dissenting creditor, on the basis of the security interest that the Appellant held and not in proportion and percentage in reference to Appellant's admitted claim and the liquidation value is not in accordance with CIRP Regulations as the liquidation value of the CD wrongfully diminished by the registered valuers from Rs. 166.54 Cr. to a meagre 82.66 Cr. on the instructions of the RP. 9. Counsel for the Appellant has submitted that the Appellant is a secured financial creditor of the Corporate Debtor. The appellant's financial debt is secured by charge on certain units and / or charge on total FSI (totalling to about 34,200 sq. ft.) in the project that was being developed by the CD. The Appellant submitted its claim for secured financial debt of Rs. 10,21,25,000/- which was admitted fully and he was included in the CoC with 1.67% voting share. It is further submitted that during the CIRP, the RP appointed registered valuers who reported the liquidation value of the assets of the CD at about Rs. 166.54 Cr. but thereafter, the RP instructed the registered valuers, for land and building, to revisit their respective valuations by adjusting certain dues payable to New Okhla Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Infratech Buyers Association & Anr. CA (AT) (Ins) No. 654 of 2022 has held that the security holder cannot insist upon payment of amount as per security interest when there is resolution of the CD through a resolution plan. In this regard, he has referred to Paras 10, 12 and 14 of this Judgment which are reproduced as under:- "10. The vote share of the Appellant was 2.38% in the CoC and as per the vote share, the amount payable to the Appellant comes to Rs.99,19,425/- as pleaded by RP. We, thus, are of the view that payment in the Plan proposed to the Appellant is not less than the amount, which was payable to the Appellant in event the amount is distributed as per priority under Section 53(1) of the IBC. In paragraph 13 of the reply of Successful Resolution Applicant, following has been pleaded: "13. Compliance of Section 30(2): As already stated above, the Appellant has got the payout of Rs.1 Crore, which is above the proportionate liquidation value of Rs.99,19,425/- (being 2.38% of enterprise Liquidation value of Rs.41,67,82,554/-). Therefore, the argument that the proposed payout is below liquidation value is misplaced. The answering Respondent has also demonstrated as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 30(2)(b) is in fact a beneficial provision in favour of the operational creditors and dissentient financial creditors as they are now to be paid a certain minimum amount, the minimum in the case of the operational creditors being the higher of the two figures calculated under sub - clauses (i) and (ii) of clause (b), and the minimum in the case of dissentient financial creditor being a minimum amount that was not earlier payable. As a matter of fact, preamendment, secured financial creditors may cramdown unsecured financial creditors who are dissentient, the majority vote of 66% voting to give them nothing or next to nothing for their dues. In the earlier regime it may have been possible to have done this but after the amendment such financial creditors are now to be paid the minimum amount mentioned in sub-section (2). Ms Madhavi Divan is also correct in stating that the order of priority of payment of creditors mentioned in Section 53 is not engrafted in sub-section (2)(b) as amended. Section 53 is only referred to in order that a certain minimum figure be paid to different classes of operational and financial creditors. It is only for this purpose that Section 53(1) is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent classes or sub-classes of creditors in accordance with provisions of the Code and the related Regulations, is essentially the commercial wisdom of the Committee of Creditors and a dissenting secured creditor like the appellant cannot suggest a higher amount to be paid to it with reference to the value of the security interest. Paragraph 13.1 of the judgment is as follows:- "13.1. Thus, what amount is to be paid to different classes or sub-classes of creditors in accordance with provisions of the Code and the related Regulations, is essentially the commercial wisdom of the Committee of Creditors and a dissenting secured creditor like the appellant cannot suggest a higher amount to be paid to it with reference to the value of the security interest." 12. Counsel for the Respondent has further argued that the resolution plan has been approved by the CoC by voting percentage of 87.60% in its commercial wisdom which cannot be interfered with in view of the decision of the Hon'ble Supreme Court in the case of K. Sashidhar Vs. Indian Overseas Bank & Ors. Civil Appeal No. 10673 of 2018 that the commercial wisdom of the CoC has been given paramount status without any judicial i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gical Resources AG Vs. Ferro Alloys Corporation Limited & Ors., CA (AT) (Ins) No. 272 of 2020 . 15. We have heard Counsel for the parties and perused the record. 16. The Ld. Tribunal has relied upon a decision of the Hon'ble Supreme Court in the case of M/s Amit Metaliks Limited & Anr. (Supra). In the said case, the appeal was filed by India Resurgence ARC Pvt. Ltd., assignee of the Religare Finvest Limited as secured financial creditor of the CD, having 3.94% of voting share in the CoC. When the resolution plan submitted by the RP in that case was taken up for consideration by the CoC, India Resurgence ARC Pvt. Ltd. expressed its reservation on the share being proposed, particularly with reference to the value of the security interest held by it and chose to remain a dissenting financial creditor. The resolution plan however was approved by the AA. The contention of the Appellant in that case was that the approved resolution plan failed the test of being feasible and viable in as much as the value of the secured asset on which security interest was created by the CD in its favour was not taken into consideration. The main plank iof submission of the Appellant in that case was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, by receiving excess amount, beyond the receivable liquidation value proposed for the same class of creditors." 17. Ultimately, the appeal was dismissed. In the case of Paridhi Finvest Pvt. Ltd. (Supra), the case of the Appellant was that he was not paid the amount as per the liquidation value though the Appellant being a dissenting financial creditor was entitled for payment of amount as per liquidation value. In this case, the Court relied upon the decision in the case of Amit Metaliks (Supra) and the decision in the case of Paridhi Finvest Pvt. Ltd. was upheld by the Hon'ble Supreme Court and the appeal was dismissed. 18. In view of the aforesaid discussion, we also rely upon the decision of Amit Methaliks (Supra) which has rightly been considered by the Adjudicating Authority and find no merit in the present appeal but it is also pertinent to mention that the decision of the Hon'ble Supreme Court in the case of Amit Metaliks (Supra) has now been doubted by the Hon'ble Supreme Court in the case of DBS Bank Ltd. Vs. Ruchi Soya Industries Ltd. & Anr., (2024) 242 Comp Cas 441 wherein the question for consideration of the Hon'ble Supreme Court was as to whether Section 30(2)(b) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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