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TMI Blog2025 (1) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... for RP JUDGMENT ASHOK BHUSHAN , J. These two Appeal(s) have been filed challenging order dated 28.08.2024 passed by National Company Law Tribunal, New Delhi, Principal Bench allowing IA No.4132 of 2024 filed by Respondent No.1 - Successful Resolution Applicant ("SRA") for excluding the period from 12.04.2023 until 01.07.2024 from the period of implementation of the Resolution Plan approved by NCLT vide its order dated 21.02.2023. 2. Company Appeal (AT) (Ins.) No.1990 of 2024 has been filed by 08 allottees of the Project in question and the Company Appeal (AT) (Ins.) No.2008 of 2024 has been filed by Suspended Director of the Corporate Debtor. Both the Appeal(s) were heard together by this Tribunal. In Company Appeal (AT) (Ins.) No.1990 of 2024 on 14.11.2024, two weeks' time was allowed. By another order dated 11.12.2024 SRA was allowed two weeks' further time to file the affidavit. The SRA in both the Appeal(s) has filed the affidavit. 3. In Company Appeal (AT) (Ins.) No.1990 of 2024, IA No. 7443 of 2024 has been filed for condonation of 12 days delay in filing of the Appeal and in Company Appeal (AT) (Ins.) No.2008 of 2024, IA No.7527 of 2024 has been filed praying for condo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marjit Singh, Suspended Director (who is Appellant in Company Appeal (AT) (Ins.) No.2008 of 2024); one by Crown Business Park Tower A Buyers Association and other by Cimco Projects Ltd., who was unsuccessful Resolution Applicant. When the Appeal(s) came for hearing, the Appellant(s) in the above Appeal(s) prayed for an interim order. This Tribunal passed an interim order on 12.04.2023 directing listing of Appeal on 26.04.2023 and a direction that "Successful Resolution Applicant shall not transfer any unit till the next date". The interim order passed by this Tribunal continued from time to time. The SRA has also filed an Application for vacating the interim order, however, interim order continued till the Appeal(s) were finally decided by judgment and order of this Tribunal dated 01.07.2024. (v) The SRA after approval of Resolution Plan proceeded to act in accordance with Resolution Plan and taken various steps. However, the construction was not complete, when the Appeal(s) were decided on 01.07.2024. After dismissal of the Appeal(s) and vacation of interim order operating in the Appeal(s), IA No.4132 of 2024 was filed by the SRA seeking exclusion of period from 12.04.2023 until ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ork orders for award of various work /contract have been issued to the tune of Rs.18,23,04,979/-, but there are no status report regarding the extent of construction carried out by the SRA. The SRA has been slack in carrying out the construction and implementation of the Plan. The SRA was not entitled for exclusion of 446 days as prayed in the Application. The Adjudicating Authority without considering the relevant facts has granted the exclusion. No grounds have been made out for exclusion of the time. It was necessary for the SRA to infuse Rs.10 crores to kick start the construction work. The SRA was to continue with the construction of completion of incomplete towers for the delivery to the allottees. 7. The learned Counsel for the Appellant appearing in Company Appeal (AT) (Ins.) No.2008 of 2024 also adopted the submissions advanced by learned Counsel for the Appellant in Company Appeal (AT) (Ins.) No.1990 of 2024. It is submitted that construction of Tower B1 was 80% complete and the Resolution Plan contemplated that Tower B-1 shall be completed within six months from the date of approval of Resolution Plan by the NCLT with grace period of three months. No proof has been brou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Rs.50 crores, which was necessary for completion of the construction. It is submitted that Appellants in Company Appeal (AT) (Ins.) No.1990 of 2024 were allottees, who have also not paid their balance dues, despite communication and emails sent by the SRA. The Appellants in Company Appeal (AT) (Ins.) No.1990 of 2024 on the one hand have not paid their dues and on the other hand are challenging the impugned order by which exclusion of time was allowed by the Adjudicating Authority on insufficient ground. 9. Coming to the Company Appeal (AT) (Ins.) No.2008 of 2024, it is submitted that the Appellant is a Suspended Director, who had challenged the approval of Resolution Plan before this Appellate Tribunal by filing two Appeals, which Appeals were heard and decided by this Tribunal on 01.07.2024. The Appellant - Suspended Director has no ground to challenge the exclusion of time. The Suspended Director has challenged the approval of Resolution Plan and has failed. The filing of this Appeal by Suspended Director is another attempt to create hindrance in implementation of the Resolution Plan and handing over of the units to the allottees. 10. We have considered the submission of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 12.04.2023 directions issued by Commission for Air Quality Management in NCR has also been referred, due to which for about one month, restriction was there in construction. It was specifically pleaded that SRA has spent total amount of Rs.15,46,09,945/- towards payment of CIRP cost, operational creditors and statutory authorities etc. and work orders to the tune of Rs.13,46,08,494/- has been awarded towards firefighting and fire doors work, structural repair and rehabilitation of buildings, ventilation pressurization and HVAC work and facia repairs. It is further pleaded that it was on the basis of 9th meeting of the Monitoring Committee held on 11.07.2024, where Monitoring Committee resolve to file an Application for exclusion. Consequently, the Application for exclusion of time was filed. 13. As noted above, when the Appeal came for consideration, we directed the SRA to file an affidavit so as to provide details of action taken by SRA in pursuance of the approval of Resolution Plan may be looked into. The SRA has filed an affidavit dated 02.01.2025 in both the Appeal(s). An objection has been raised by the Appellant to the affidavit filed sworn by Salil Barar, the then Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record consists of about 250 members. Another Appeal (Company Appeal (AT) (Ins.) No.2008 of 2024) was filed by Suspended Director, who had earlier filed Appeal challenging approval of Resolution Plan, which Appeal came to be dismissed by this Tribunal by detailed judgment, considering elaborate submissions. We further notice from the pleadings in Company Appeal (AT) (Ins.) No.1990 of 2024 that Appellants have raised ground in the Appeal challenging the eligibility of SRA, including the ground that RP has manipulated the eligibility criteria in RFRP to unreasonably favouring Respondent No.1. Further, RP granted Respondent No.1 permissions to carry out unauthorized modifications to its Resolution Plan and RP failed to verify Respondent No.1 towards it eligibility to submit the Plan. These grounds have been taken in paragraph 7 (u), (v) and (w). The Appellant also by the present Appeal are pleading that CIRP of the Corporate Debtor should be commenced afresh. 16. The Appellants sought to challenge the approval of the Resolution Plan indirectly while making allegation of eligibility against SRA, which grounds are not relevant, nor need any consideration. The challenge to approval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o manner have aby adverse effect on the SRA in implementing the Resolution Plan. 19. The present is not a case where after approval of the Resolution Plan, the Applicant has not taken any steps towards the implementation of the Resolution Plan and has not infused any funds. It is the case of the Appellants that although an amount of Rs.10 crores was to be infused by the SRA. The fact that SRA has infused Rs.7 crores, is not even disputed and it is an admitted fact. In the Application, which was filed before the Adjudicating Authority, the SRA has given the details of various steps taken by it towards implementation of the Plan and amount spent by the SRA towards the implementation of the Plan. It has been pleaded in paragraph-18 of the Application that an amount of Rs.15,46,09,545/- has been spent by the SRA toward payment of CIRP cost, operational creditors and statutory authorities etc. and work order awarded to the tune of Rs.13,46,08,494/- has been issued. In the affidavit, which has been filed in these Appeal(s), the SRA has also pleaded and brought on record materials to indicate that for renewal of license substantial amount has been spent by the SRA, renewal from DTCP, Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also passed by this tribunal, we do not find any error in the order of the Adjudicating Authority, excluding the period from implementation of the Resolution Plan, during which an interim order was operating against the SRA. As noted above, the SRA has moved an Application in the Appeal(s) for vacation of the interim order, which Application could not be decided and remained pending till the dismissal of the Appeal till 01.07.2024. We, thus, are satisfied that substantial steps were taken by the SRA to implement the Resolution Plan and various steps were taken by the SRA to implement the Plan as has been pleaded in the Application filed by the SRA as well as in the affidavit in the present Appeal. We have also noticed above that SRA is none-else than the Association of allottees, which is representing about 250 allottees. One of the Association of the allottees had also challenged the Resolution Plan, which Appeal was also dismissed as noted above. 21. In view of our foregoing discussion, we do not find any error in the order passed by the Adjudicating Authority dated 28.08.2024 excluding the period from 12.04.2023 to 01.07.2024, during which the interim order passed by this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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