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TMI Blog2025 (3) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor which is Rs.1.5 Crore against the 13.81% vote shares. The appellant sought to raise a grievance that homebuyers are being provided unit and they are not sharing any haircut in their entitlement. It is true that the SRA is spending certain amount in completing the construction for delivering the unit to the homebuyer. Unsecured financial creditor who are dissenting financial creditor in the present case are entitled to the amount not less than the amount as contemplated by Section 30(2)(b) - The claim of unsecured financial creditor who are dissenting financial creditor which is admitted of not related parties is Rs.10.94 Crore. Vote share of dissenting financial creditor is 13.44, hence the payout of Rs.1.5 Crore to the dissenting financial creditor in no manner violates Section 30(2)(b). Law is well settled that jurisdiction of Adjudicating Authority and this Appellate Tribunal to interfere with approval of resolution plan is too limited. Adjudicating Authority can interfere with the approval of the resolution plan only in the case where there is a non-compliance of Section 30(2) of the IBC. Approval of resolution plan after expiry of CIRP period - HELD THAT:- According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a Financial creditor of the corporate debtor, in 'Form - C'. Tribhawan K. Parnami also filed claim as a Financial creditor in 'Form - C'. Mohinder Kaur Sachdeva, Appellant has also filed a claim. The claim of all the appellants as unsecured Financial creditor was admitted by the Resolution Professional (RP). iii. The RP published list of unsecured Financial creditor as on 25.06.2022, which included name of all the appellants along with the claims admitted. iv. In the CIRP of the corporate debtor, resolution plans were received. v. On basis of admitted claim of the appellant in Comp. App. (AT) (Ins.) No.1367/2024, appellants were collectively allocated 7.192% voting shares. vi. Appellant, Tribhawan K. Parnami was also admitted of Rs.5,06,06,100/- whereas claim of Mohinder Kaur Sachdeva was admitted for amount of Rs.77,50,000/-. The claim of Tribhawan K. Parnami was treated to be claim of related party. vii. The Committee of Creditor (CoC) by voting share of 85.56% approved the resolution plan, on the basis of approval of resolution plan by the CoC. On 31.01.2023, RP filed I.A. No. 863/2023, seeking approval of the resolution plan. Adjudicating Authority by the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the homebuyers together hold 86.56% vote shares in the CoC. The only payment made in the plan is to the unsecured financial creditor who have been proposed payment of Rs.1.5 Crore and balance amount is used by the SRA in completing the pending constructions/improvement of the project of the corporate debtor. The claim admitted of the homebuyer is to the tune of Rs.77 Crore whereas admitted claim of unsecured financial creditor excluding the related party is Rs.10,97,00,000/- corresponding to 13.44 voting share and they have been proposed payment of Rs.1.5 Crore in the plan. It is submitted that the payment is to the unsecured financial creditor who are dissenting financial creditor is according to the Section 30(2)(b). 7. Learned counsel for the SRA also supported the submission of the RP and contended that homebuyer constitute more than 85% of total financial creditors and their admitted claim is Rs.77.12 Crore against the claim of nonrelated unsecured creditors claim of Rs.10.94 Crores have been admitted corresponding to 13.44% voting shares against the claim of Rs.10.47Crore they are being paid Rs.1.50 Crore. It is submitted that resolution plan is compliant, SRA is sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olution process of a corporate debtor-- (i) where a resolution plan has not been approved or rejected by the Adjudicating Authority; (ii) where an appeal has been preferred under section 61 or section 62 or such an appeal is not time barred under any provision of law for the time being in force; or (iii) where a legal proceeding has been initiated in any court against the decision of the Adjudicating Authority in respect of a resolution plan;" 10. From the materials on the record, it is clear that only pay out under the plan is to the unsecured financial creditor which is Rs.1.5 Crore against the 13.81% vote shares. The appellant sought to raise a grievance that homebuyers are being provided unit and they are not sharing any haircut in their entitlement. It is true that the SRA is spending certain amount in completing the construction for delivering the unit to the homebuyer. Unsecured financial creditor who are dissenting financial creditor in the present case are entitled to the amount not less than the amount as contemplated by Section 30(2)(b). The amount of claim of the financial creditor in a class i.e., homebuyer, which as per submission of the SRA is Rs.77.12 Cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment in Company Appeal (AT) (Insolvency) No.926 of 2019 - Flat Buyers Association Winter Hills - 77, Gurgaon vs. Umang Realtech Pvt. Ltd. through IRP & Ors. decided on 04.02.2020, has noted the case of the Homebuyers and also noted the distinction between 'Secured' and 'Unsecured' Creditors. It is useful to extract paragraphs 4, 5 and 11 of the judgment, which are as follows: "4. In "Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta & Ors.", the Hon'ble Supreme Court made a distinction between the 'Secured' and 'Unsecured Creditors' and observed that protecting creditors in general is, no doubt, an important objective. Protecting creditors from each other is also important. If an "equality for all" approach recognising the rights of different classes of creditors as part of an insolvency resolution process is adopted, secured financial creditors will, in many cases, be incentivised to vote for liquidation rather than resolution, as they would have better rights if the Corporate Debtor is liquidated. This would defeat the objective of the Code which is resolution of distressed assets and only if the same is not possible, should liquidation follow. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken to handing over of the units to the Homebuyers on consideration, already paid. In this context, we may refer to judgment of this Tribunal, delivered on 02.11.2023 in Company Appeal (AT) (Insolvency) No.1162 of 2023 - Sabari Realty Pvt. Ltd. vs. Sivana Realty Pvt. Ltd. & Ors. In the above case, Homebuyers were treated in two groups, i.e. 'affected' and 'unaffected'. Affected Homebuyers were those whose units were mortgaged, but allotment was made without taking consent of the Financial Creditor, to whom the units were mortgaged. The other category was those Homebuyers, who were allotted the units, after obtaining no objection from Financial Creditor, to whom the units were mortgaged. The Resolution Plan was approved treating them in two different categories, which was challenged before this Tribunal, on the ground that the treatment of Homebuyers, cannot be discriminated. This Tribunal in the above context held that treatment of Homebuyers in two categories as per the Resolution Plan, which was approved by the CoC, cannot be objected. This Tribunal also observed that reference has to be on fair and equitable treatment. It is useful to extract paragraphs 24, 25, 26 and 27 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the said Regulation involves the resolution plan stating as to how it has dealt with the interests of operational creditors, which is not the same thing as saying that they must be paid the same amount of their debt proportionately. Also, the fact that the operational creditors are given priority in payment over all financial creditors does not lead to the conclusion that such payment must necessarily be the same recovery percentage as financial creditors. So long as the provisions of the Code and the Regulations have been met, it is the commercial wisdom of the requisite majority of the Committee of Creditors which is to negotiate and accept a resolution plan, which may involve differential payment to different classes of creditors, together with negotiating with a prospective resolution applicant for better or different terms which may also involve differences in distribution of amounts between different classes of creditors." 26. What was emphasised in the judgment is that there shall be fair and equitable treatment in dealing dues of Operational Creditors and further there can be difference in payment to the Financial Creditor and the Operational Creditors. Hon'ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above in following words : "9. L. Because the Ld. Adjudicating Authority has erred in law by not appreciating the fact that the period of the CIRP stood expired on 03.01.2023 and the application of time extension was filed by Respondent is still pending adjudication before the Ld. Adjudicating Authority and as such without having extended the CIRP period the Respondent cannot be allowed to conduct further meetings of the CoC. It is also important to mention at this stage that even without considering the time extension application, the 330 days for the CIRP would have expired on 03.05.2023, whereas the impugned order was passed on 14.05.2024 without extending the period of CIRP and thus the Impugned order is not sustainable in the eye of law." 13. According to own case of appellant, 330 days period expiring on 03.05.2023. Resolution plan has been approved by the CoC on 31.01.2023, and the application was filed for approval of the plan before the aforesaid expiry of 330 days period. The fact that Adjudicating Authority approved the resolution plan on 14.05.2024 cannot be a ground to say that the order was passed after expiry of 330 days. When the resolution plan has been appr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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