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TMI Blog2025 (4) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent No.1 herein. M/S Concord Infrastructure Private Limited (Operational Creditor) is the Respondent No.2 herein. 3. The Appellants submitted that both of them are homebuyers who have invested their savings in projects launched by Respondent No. 1. The Respondent No. 1, as the Resolution Professional for Shubhkamna Buildtech, a real estate developer, was engaged in the construction of two group housing projects in Noida and Greater Noida. These projects include "Shubhkamna Techomes," comprising 722 flats located at Plot No. GH-05B, Sector-137, Noida, and "Shubhkamna City," comprising 1,139 flats spread over 33,538 square meters at Plot No. GH-02A, Sector-1, Greater Noida. The Appellants assert that their substantial investments in these projects remain unfulfilled due to delays and unresolved issues. 4. The Appellants submitted that the "Shubhkamna City" project in Greater Noida comprises five towers, with structural construction nearly complete and plastering finalized in some towers, pending finishing work. These towers contain 600 flats, all sold by Respondent No. 1, which collected approximately 70% of the total consideration from homebuyers, including their proport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution process. 8. The Appellants submitted that the Application No. 391/2019 was limited to specific prayers, namely: (b) Directing the Resolution Professional to follow the observations made by this Appellate Tribunal in its order dated 03.09.2019. (d) Directing the Resolution Professional to provide voting shares along with voter identification to ensure transparency in the resolution process. (e) Directing the Resolution Professional to restore the voting rights of the flat buyers, including Applicants No. 4 and 5. The Appellants submitted that as far as prayer (b) is concerned, it has not been followed either in letter or spirit by the CoC, while approving the resolution plan, acted contrary to this Appellate Tribunal's order dated 03.09.2019 by failing to consider the interests of flat buyers, including the terms of agreements reached with the Corporate Debtor. The Appellants submitted that, with respect to prayers (d) and (e) in Application No. 391/2019 regarding voting rights, the Resolution Professional has violated legal principles by failing to disclose the voting shares of the two groups of flat buyers, namely "Shubhkamna City" and "Shubhkamna Techomes." The Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g assets, despite the fact that both projects had separate approvals from different authorities, distinct allottees, creditors, and financial institutions. The Appellants contend that this merger was done with the ulterior motive of ensuring that if flat buyers from one project overwhelmingly voted in favor of the Resolution Plan, it would secure the passage of the plan for the other project as well. It is submitted that approximately 57% of combined voters supported the Resolution Plan, and this combined voting mechanism ensured that both projects were passed together, thereby undermining the individual interests of homebuyers and creditors associated with each project. 12. The Appellants submitted that the disclosure of voting by different sets of flat buyers is crucial for this Appellate Tribunal to determine the issues at hand, particularly whether voting and the CIRP should be conducted on a project-wise basis, as per the judgment in Flat Buyers Association Winter Hills-77, Gurgaon (Supra). It is the case of the Appellant that such disclosure will also clarify why certain voters, especially those who opposed the Resolution Plan, were deliberately excluded from the voting proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts entered into Builder Buyer Agreements, received allotment letters, and were issued receipts for cash payments made. The Appellants submitted that the non-availability of the Corporate Debtor's cash register or accounts for the period from 2015 to 2018 cannot be construed as evidence of non-payment by the Appellants. The Appellants further submitted that neither the Corporate Debtor nor the Resolution Professional has alleged that these documents are fabricated or invalid. Moreover, the Resolution Professional, in an email dated 14.06.2019, acknowledged the non- availability of relevant records, further validating the Appellants' claims. 16. The Appellants submitted that the issue of cash register entries can only be clarified if the Resolution Professional gains access to the relevant registers or if such records are provided by the former directors, representatives, accounts department, or officers of the Corporate Debtor. However, in the present case, the former directors of the Corporate Debtor are absconding, and the Resolution Professional has made no inquiry from any source regarding the status of allotment of flats to the Appellants. 17. The Appellants submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oof of its claim to the Interim Resolution Professional, which includes providing relevant documents. The Respondent No. 1 submitted that the he had provisionally admitted the claim of the Appellants based on the available documents provided by the Appellants and had informed regarding the provisional admission of the claim to the Appellants vide email dated 14.06.2019. It is the case of the Respondent No. 1 that he further conducted a thorough examination of the documents furnished by the Appellants, and reasonably concluded that the cash receipts relied upon by the Appellant to substantiate its claim are not reflected in the cash register of the Corporate Debtor and observed that the name of the Appellants were not reflecting in the list of homebuyers who had made allegedly the payment in the cash form to the Corporate Debtor. In the absence of any proof of the said cash receipts, the Respondent No. 1 was entitled not to verify the Appellant's claim. 24. The Respondent No. 1 submitted that following the publication of the public announcement in Form A by the IRP, the CoC was constituted based on the claims received from the creditors of the Corporate Debtor. The first meetin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective Resolution Applicants by the deadline of 10.08.2019. These applicants were the Consortium - Executives of the Association of Home Buyers, and Sunder Kumar Singhal & Sunil Kumar Agarwal. Following this, the Resolution Plans were opened during the fifth CoC meeting, where the key aspects of the respective plans were discussed. A comparative note highlighting the key points of these two Resolution Plans was subsequently circulated among the Authorized Representative, homebuyers, and other CoC members for further review. 29. The Respondent No. 1 submitted that the Resolution Professional carefully deliberated on the Resolution Plans received from the two applicants and undertook a process to ensure that these plans were in accordance with the terms and conditions outlined in the RFRP published on 07.08.2019. However, due to ongoing litigation concerning the status of NOIDA authority as a financial creditor or operational creditor, a stay was granted by the Adjudicating Authority from August 6 to August 21, and subsequently, a stay on voting was imposed pending the order in the NOIDA application until September 30. Thereafter, on 09.10.2019, the Resolution Plan was approved by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Tribunal in the matter of Office of the Assistant State Tax Commissioner v. Sh. Parthiv Parikh & Ors., passed in Company Appeal (AT) (Ins.) No. 583 of 2020 decided on 26.03.2021 in which it was held that: "15. Thus, it is clear that much water had flown under the bridge from the date of issue of public notice (on 02.11.2018) and the extended time period of ninety days as provided under Regulation 12(2) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and the Resolution Plan as approved by the COC was submitted to the Adjudicating Authority for necessary approval under Section 30. Any interruption in the CIR Process at this stage by including a delayed claim/s would have meant setting the clock back and sending matter back to COC & RP. Rt cannot be ruled out that if the claim of the Operational Creditor State Tax Department, Government of Maharashtra was accepted at such a late stage, there could have been other such applicants too, who would have demanded accommodation on the same ground allowing late submission of their claims once this window would have opened. It would be trite to emphasise the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the CoC post-verification of their claims, as no such removal occurred following due scrutiny. 40. The Respondent No. 1 submitted that an application under Section 19(2) of the Code was duly filed before the Adjudicating Authority, seeking cooperation from the erstwhile management of the Corporate Debtor to procure all relevant records. Despite this, the ex-promoters have failed to provide any books, records, bank account details, agreements, registers, or electronic storage devices. Consequently, Respondent No. 1 and its team have reconstructed the data and accounts, relying on information sourced from public domains, erstwhile auditors, tax consultants, homebuyers, creditors, and available bank statements of known accounts. 41. The Respondent No. 1 submitted that a meticulous examination of the documents tendered by the Appellants was undertaken, leading to the reasoned conclusion that the cash receipts relied upon by the Appellants to substantiate their claim find no reflection in the Corporate Debtor's cash register. The Respondent No. 1 further submitted that the Appellants' names were conspicuously absent from the list of homebuyers who effected such alleged cash pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d approved by the CoC with an overwhelming majority exceeding 87% voting share, rendering the Appellant's alleged negligible 1% voting share inconsequential to the outcome. Furthermore, the Adjudicating Authority upheld the Respondent No. 1's rejection of the Appellants' claims, noting their absence from the Corporate Debtor's cash register and prior rejection by the Resolution Professional. 46. Concluding his arguments, the Respondent No. 1 requested this Appellate Tribunal to dismiss the appeal with exemplary cost. Findings 47. We note that the present appeal has been filed by the Appellants being aggrieved by the Impugned Order dated 22.12.2020, where the Adjudicating Authority dismissed their application on the grounds that the Appellants held only a minuscule voting share of approximately 1% of the total CoC voting share and that the claims of Applicants No. 4 and 5 (now Appellants) were not reflected in the books of account and had already been rejected by the Resolution Professional. The Appellants contended that their claims were not considered, despite having valid Builder Buyer Agreements, allotment letters, and receipts. 48. We note that the Appellants have filed ano ..... X X X X Extracts X X X X X X X X Extracts X X X X
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