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TMI Blog2025 (1) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... at the date of refiling after curing the defects cannot be treated to be date of filing of the Appeal for purposes of computation of limitation and date of e-filing cannot be treated to be fresh date of filing of the Appeal. For purposes of computation of limitation, the date of e-filing of the Appeal which is 24.08.2024 has to be treated the date for purposes of computing the limitation. 30 days period after 24.07.2024, having expired on 23.08.2024, there is a delay of only 1 day in filing of the Appeal - there are sufficient cause in the grounds taken in the Application for condonation of 1 day delay. The delay of 1 day in filing the Appeal is condoned. Replacement of the Authorised Representative of the homebuyers - HELD THAT:- When a procedure for replacement of the Authorised Representatives have been introduced in the Regulations by 16A(3A) inserted on 18.09.2023, the said statutory provision has to be followed for replacement of Authorised Representatives. Adjudicating Authority did not commit any error in relying on the Regulation 16A(3A) of the CIRP Regulations for not accepting the Application of the Appellant. Conclusion - The delay in filing the appeal was condoned. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tends that the Application for delay condonation need to be rejected. It is submitted that although the Appeal is claimed to be e-filed on 24.08.2024, the Affidavit filed in support of the Appeal contains the date 09.09.2024, and the Memo of Appeal including the verification contained typed date 09.09.2024, which was cut by hand by changing the date from 09.09.2024 to 24.08.2024. It is submitted that Vakalatnama which has been filed in support of the Appeal is also signed on 09.09.2024. It is submitted that Appeal instituted by the Appellant is the non-est filing. Dates mentioned in the Appeal, Affidavit and Vakalatnama uniformly being 09.09.2024 unequally indicates that Appellant initially submitted a filing solely to obtain Diary No. and refiling of the Appeal took place on 09.09.2024. The filing by the Appellant, thus procedurally defective and legally untenable. It is submitted that Appeal be dismissed in limine being in violation of limitation prescribed under Section 61. It is submitted that there were other Appeals filed against the same Order Comp. App. (AT) (Ins.) Nos. 1474, 1477 1479/2024, which were considered by this Tribunal on 31.07.2024, whereas, in which proceeding, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the refiling of the Appeal that fresh Affidavit dated 09.09.2024 was filed. We, thus do not accept the submission of the Respondent No. 1 that Appeal filed on 24.08.2024 was non-est filing Appeal which was e-filed on 24.08.2024 supported by an Affidavit dated 12.08.2024, hence the submission that filing dated 24.08.2024 was non-est filing cannot be accepted. 14. The issue which is sought to be raised in the present Appeal by Learned Counsel for the Respondent was considered by this Tribunal in the matter of Innovators Cleantech Pvt. Ltd. Vs. Pasari Multi Projects Pvt. Ltd. in I.A.1622 1623/2024 in Comp. App. (AT) (Ins.) No.115/2024, decided on 24.07.2024. This Tribunal in the aforesaid Judgment has held that as per Rule 22 of National Company Law Appellate Tribunal Rules, 2016 and Orders issued by this Tribunal on 21.10.2022 and 24.12.2022, the date of e-filing has to be treated as date for calculation of the limitation. It was further noticed that the date of refiling after curing the defects cannot be treated to be date of filing of the Appeal for purposes of computation of limitation and date of e-filing cannot be treated to be fresh date of filing of the Appeal. In Paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Limited submitted a Resolution Plan dated 06.07.2020 in respect of the Corporate Debtor. iv. The Resolution Plan submitted by SMV Agencies Private Limited came to be approved by the Committee of Creditors (CoC) in its 19th CoC Meeting with 80.13%, vote shares. v. The RP filed an I.A. No.3255/2020 on 13.08.2020 for approval of Resolution Plan. vi. Appellant filed an I.A. No.3588/2023 opposing the Application for approval of the Resolution Plan. Another I.A. No.3017/2024 was filed by the Appellant raising additional objections to the Resolution Plan. There were other Applications filed by different Stakeholders objecting to the approval of the Resolution Plan. vii. One I.A. 3926/2023 has also been preferred by the RP and M/s. Shomit Finance Limited seeking certain directions in terms of the Settlement on 04.03.2024. viii. I.A. No.1158/2024 was filed by the Appellant praying for replacement of the Authorised Representatives of the Homebuyers, in which Application, Reply was filed by the Authorised Representative of the Homebuyers objecting to the Application, to which the Rejoinder Affidavit was also filed by the Appellant. ix. Adjudicating Authority, vide Impugned Order dated 24.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approved the Resolution Plan as early as in July 2020, and Application for approving the Plan was filed by the RP on 13.08.2020 itself. After approval of the Plan, no individual homebuyer can be given right to file any Application for removal of Authorised Representative in the present case after about 4 years from the approval of the Resolution Plan with a CoC Appellant has filed the Application for replacement of the Authorised Representative. The statutory scheme as delineated by Regulation 16(3A) of the CIRP Regulations provides a threshold for entertaining any Application for replacement i.e., 10% of the Creditors in class. There being number of Creditors in class being several thousand, entertainment of the Application or at behest of one homebuyer is against the interest of majority of Homebuyers having never been aggrieved by the action of the Authorised Representative has filed any complaint or any Application for replacement. Application filed by the Appellant has rightly been rejected by the Adjudicating Authority. 20. Learned Counsel for the Respondent No. 1 defended all actions taken by the Authorised Representative of the Homebuyers and submits that Authorised Repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or does not give prior instructions through physical or electronic means, the authorised representative shall abstain from voting on behalf of such creditor. (3A) Notwithstanding anything to the contrary contained in sub-section (3), the authorised representative under sub-section (6A) of section 21 shall cast his vote on behalf of all the financial creditors he represents in accordance with the decision taken by a vote of more than fifty per cent. of the voting share of the financial creditors he represents, who have cast their vote: Provided that for a vote to be cast in respect of an application under section 12A, the authorised representative shall cast his vote in accordance with the provisions of sub-section (3). (4) The authorised representative shall file with the committee of creditors any instructions received by way of physical or electronic means, from the financial creditor he represents, for voting in accordance therewith, to ensure that the appropriate voting instructions of the financial creditor he represents is correctly recorded by the interim resolution professional or resolution professional, as the case may be. Explanation.-- For the purposes of this section, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wenty-four hours 24. Authorised Representative is selected as per the choice of the highest number of Financial Creditors. Sub-Regulation (3A) was subsequently inserted only on 18.09.2023, which now provides a mechanism for replacement of the Authorised Representatives at the time when Application was filed by the Appellant, i.e., in March 2024, Regulation 16A(3A) was already enforced. 25. Section 25A came for consideration before the Hon ble Supreme Court in the matter of Pioneer Urban Land and Infrastructure Ltd. Anr. Vs. Union of India Ors. reported in (2019) 8 SCC 416, where Hon ble Supreme Court laid down that if a decision is taken by vote of more than 50% of the voting shares of the Financial Creditors who are represented by Authorised Representative, all others have to be bound by the said decision. In Paragraph 63 of the Judgment following has been laid down: 63. Given the fact that allottees may not be a homogeneous group, yet there are only two ways in which they can vote on the Committee of Creditors either to approve or to disapprove of a proposed resolution plan. Sub-section (3-A) goes a long way to ironing out any creases that may have been felt in the working of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. Para 61 of the judgment reads thus:- 61. The learned Counsel for the RP has emphatically submitted that Adjudicating Authority had no jurisdiction to pass an order replacing the RP. He submits that RP can be replaced only in accordance with Section 27 of the Code, when a Resolution is passed by the CoC for such replacement. There can be no doubt to the scheme of the Code for removal of the RP by the CoC which has to pass a Resolution. The Adjudicating Authority, who has appointed the RP cannot be said to lack jurisdiction to take a decision to replace the RP, when the facts and circumstances of a particular case warrants. In the present case, where serious allegations were made against the RP, regarding not conducting the CIRP transparently, the Adjudicating Authority did not lack jurisdiction to pass an order for replacement of the RP. The jurisdiction of Adjudicating Authority to pass an order replacing the RP has also been accepted by this Tribunal in Company Appeal (AT) (INS.) No.1443 of 2022 - Srigopal Choudary vs. SREI Equipment Finance Ltd., wherein in paragraph 14 and 16, this Tribunal held following: 14. We are of the opinion that the Adjudicating Authority being the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RP, the same course ought to have been followed for the Authorised Representative also. In the above context, we may notice that Adjudicating Authority itself has clarified in the Order that replacement of the RP is not being made on the plea of the Applicant, rather Adjudicating Authority has directed for replacement since he remained oblivious about his duties as RP on vital aspects mentioned in Paragraphs 63 64 of the Order. In Paragraph 67 of the Judgment, Adjudicating Authority has made following observations: 67. Thus, we are of the view that for the purpose of discharging the statutory function of RP in terms of IBC, 2016, qua the CD, we need to appoint a responsible IPE (Insolvency Professional Entity), as provided in Regulation 12 of IBBI (Insolvency Professional) Regulations. However, it is made clear that the RP is not replaced on the plea of Applicant Homebuyer, but is replaced because he remained oblivious about his duties as RP on vital aspects mentioned in Paras 63 and 64 (ibid). 29. From the observations of the Adjudicating Authority in Paragraph 67, it is clear that the RP was replaced not on the pleas made by the Appellant but was for the reasons as mentioned, he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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