Mr. Ankur Narang & Ors. Appellants Versus Mr. Nilesh Sharma Resolution Professional of Today Homes and Infrastructure Pvt. Ltd. & Ors.
CA (AT) 1240 of 2023
Facts:
1.Appellant are a clutch of 25 applicants, each being allottees of residential flats in a project, namely, Canary Greens, Gurugram (hereinafter referred to as “Project”). The said project was being developed by Today Homes and Infrastructure Pvt. Ltd.( Corporate Debtor ). Appellants raised complaint before the National Consumer Disputes Redressal Commission (“NCDRC” in short) following which the NCDRC ordered on 31.01.2017 that the Corporate Debtor shall refund the entire amount received from each of the complainants including Service Tax and VAT along with compensation in the form of simple interest @ 10% p.a. besides Rs.10,000/- as the litigation cost.
2.The Appellants filed the execution petition in pursuance of the NCDRC order and received compensation until 31.10.2019 on which date the Corporate Debtor was admitted into Corporate Insolvency Resolution Process (“CIRP” in short). The principal amount however was not received by them from the Corporate Debtor.
3.RP had invited resolution plans. The RP had presented the plans so received from the Resolution Applicants before the Committee of Creditors (“CoC” in short) and the resolution plan was approved by the CoC with 96.93% vote share. Notably, the resolution plan is pending approval of the Adjudicating Authority. In the interim, the Appellants aggrieved with the resolution plan filed IA No. 4171/2021 before the Adjudicating Authority challenging the resolution plan as approved by the CoC. The Adjudicating Authority dismissed the said IA vide impugned order dated 01.08.2023.
4.Appellant has filed the appeal challenging the order.
Issue: Whether the order passed is correct ?
Arguments:
Appellant:
1.Counsel for the Appellants submitted that the Adjudicating Authority wrongly dismissed their IA No.4171/2021 without considering the resolution plan which plan is not in consonance with Section 30(2) of the IBC and Regulation 38 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.
2.Counsel submitted that Clause 9.2.2B(iii) of the resolution plan (hereinafter referred to as “Clause 9”) by treating the entire compensation amount received by the Appellants in terms of the NCDRC order as refund towards the principal sum was discriminatory and therefore contrary to Section 30(2)(e) of the IBC.
3.Counsel submitted that the flats of the Appellants who have order of refund has been treated as cancelled without payment of refund amount as against home-buyers who continue to hold allotments. Thus though the Appellants fall in the same class as other home-buyers but have been treated differently. Further, the Adjudicating Authority committed an error in overlooking the fact that as dissenting financial creditors, the Appellants are required to be paid in priority over the financial creditors
Respondent:
1.Counsel submitted that the Appellants being a minority group of Home Buyers have no locus to challenge the resolution plan especially when the Home Buyers as a class have voted in favour of the resolution plan.
2.It was further contended that in Clause 9 of the resolution plan, the concerns and interests of the Appellants have been duly taken care of but by making selective and deliberate omissions while referring to Clause 9, they have intentionally distorted the facts. It was emphatically asserted that the resolution plan having been approved by the CoC in their commercial wisdom, the scope of interference in the resolution plan in the exercise of jurisdiction of judicial review by the Adjudicating Authority is extremely Limited.
Decision: NCLAT upheld the order of NCLT.
Rationale:
1.NCLAT noted that Appellants were given a chance to raise their objections before the RP as well as the Authorized Representative of the Home Buyers. The RP did not falter in accepting their claims in spite of expressing some reservations initially. The RP had also Facilitated the Appellants in routing their objections to the Authorized Representative and the latter had provided them the window of opportunity of taking up their issues with the resolution applicants.
2.It held that the RP and the Authorized Representative did not fail in the discharge of their responsibilities and no cause of action survives on this count.
3.Merely because there is a reduction in the claim of any creditor does not make the resolution plan fall foul of law. We quite agree with the Adjudicating Authority that “resolution plan providing a lesser amount than admitted does not make it illegal.
Order Copy:
