The National Company Law Appellate Tribunal ( NCLAT ) has held that resubmission of the resolution plan has to await till disposing pending application. The Tribunal observed that approval of the Resolution Plan by the Committee of Creditors ( CoC ) is no more in operation and the SRA has to resubmit the Resolution Plan, as per the direction of the Adjudicating Authority and has to include the claim of NOIDA as Secured Creditor concerning other Applications, which are pending consideration.
SP Probuild LLP, Yashveer Singh and Reena, the appellants challenged the order passed by NCLT New Delhi by which all the IAs were disposed of and concerning other IAs, the Adjudicating Authority directed the same to be listed on 30.04.2024.
The Appellant claimed to have paid consideration towards the allotment of 50 flats in the Project of M/s Today Homes Noida Pvt. Ltd., i.e., ‘Ridge Residency’, Sector-135, Noida. The Appellant submits that he was given possession of 09 flats and the rest 41 flats were reflected in the website of the Corporate Debtor, but the possession was not given.
M/s Today Homes Noida Pvt. Ltd, the Corporate Debtor was admitted under insolvency. In the Corporate Insolvency Resolution Process (“CIRP”) of the Corporate Debtor, the Resolution Plan submitted by Consortium of One Group was approved by the CoC on 03.03.2020 by 100% vote shares. The Resolution Professional (“RP”) filed an application under Section 30, sub-section (2) of the Insolvency and Bankruptcy Code, 2016 (“IBC”).
The Appellant filed its claim before the Respondent No.1 (RP). On 24.03.2021, the RP rejected the claim of the Appellant informing that the Resolution Plan approved by the CoC is pending approval before the Adjudicating Authority.
The application was rejected by the Adjudicating Authority on 21.09.2021 observing that the Application has become infructuous in view of the approval of the Resolution Plan by the CoC. The Appellant filed Company Appeal (AT) (Insolvency) No. 901 of 2021, challenging the order of Adjudicating Authority, which Company Appeal was also dismissed on 10.11.2021. Civil Appeal No.7907 of 2021 filed by the Appellant was also dismissed by the Supreme Court on 12.01.2022.
It was submitted that when the Resolution Plan, which was approved by the CoC on 03.03.2020 and the same has not been approved by the Adjudicating Authority and has been remitted back for resubmission, the Appellant’s claim which was earlier rejected on the ground that the Resolution Plan has been approved by the CoC, can now be considered.
It was submitted that the Appellant is now not reiterating its prayer raised in the earlier Applications, which stood rejected by the Supreme Court, but now is praying for consideration of his claim, since the approval of the Resolution Plan by the CoC is no longer in existence and when the CoC is to resubmit the Resolution Plan, the claim of all those homebuyers, whose claims were not considered on the ground of approval of Resolution Plan by the CoC, can very well be considered.
The impugned order allows the RP as well as SRA to consider the claim of the Appellant also, which is duly reflected in the records of the Corporate Debtor. The payments made by the Appellant have not been denied and the earlier claim was not considered only on the ground that since CoC had already approved the Plan on 30.03.2020 before filing the claim by the Appellant.
The submissions of the Appellant(s) on the other hand that by the order passed on 05.03.2024, refusing to approve the Resolution Plan approved by the CoC, the CoC can now consider the claim of the Appellant(s), which were not considered, only due to the reason that claims were filed after approval of Plan by the CoC on 03.03.2020. It was submitted that the approval of the Resolution Plan by the CoC on 03.03.2020 is no longer operating, there does not impede consideration of claims of those homebuyers, which are reflected in the records of the Corporate Debtor.
The Tribunal observed that approval of the Resolution Plan by the CoC on 03.03.2020 being no more in operation and the SRA has to resubmit the Resolution Plan, as per direction of the Adjudicating Authority dated 05.03.2024 and has to include the claim of NOIDA as Secured Creditor concerning other Applications, which are pending consideration, it is appropriate that resubmission of the Plan by SRA should await the disposal of those Applications.
It was submitted that the Addendum, which according to SRA has been prepared, considering the claims of homebuyers and granting certain additional benefits to the homebuyers, does not impede considering the claims of both the homebuyers, whose claims are reflected in the records of the Corporate Debtor. It is further submitted that there cannot be different treatment of homebuyers, whose claims are reflected and verified by the RP and those who have not filed their claims and whose claims could not be verified but reflected in the records of the Corporate Debtor.
Justice Ashok Bhushan, Chairperson, Barun Mitra, Member (Technical) and Arun Baroka, Member (Technical) viewed that at this stage, the Tribunal didn’t need to express any opinion on the merits of the Applications, which are pending adjudication before the Adjudicating Authority.
Further held that resubmission of the Resolution Plan by the SRA has to await the decision of all other Applications, which was deferred by the Adjudicating Authority for consideration on 30.04.2024, as per order dated 05.03.2024 itself. “There is no doubt that the claim of the NOIDA has to be considered as per the direction dated 05.03.2024 as Secured Creditor, but since other Applications are still pending.”
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