12th March, 2025 Approval of Resolution Plan - Universal Buildwell Private Limited [IA-5003/2021, IA-3778 & 678/2022, IA-3099,4569,6746 & 732/2023 & IA-2959/2024 in Company Petition No. IB-456/(ND)/2018] (6.15 MB)

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA- 2959/2024 in CP(IB)-456/ND/2018 Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 1 of 148 NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH (COURT-II)

IA-5003/2021, IA-3778/2022, IA-678/2022, IA-3099/2023,
IA-4569/2023, IA-6746/2023, IA-1732/2023 & IA-2959/2024 IN Company Petition No. (IB)-456/(ND)/2018

IN THE MATTER OF: Pallavi Joshi Bakhru

... Applicant/Financial Creditor 

Versus Universal Buildwell Private Limited … Respondent/Corporate Debtor

AND IN THE MATTER OF IA-5003/2021:

(Under Section 30(6) r/w Section 31 of IBC, 2016)

Mr. Atul Kumar Kansal, Resolution Professional, M/s Universal Buildwell Pvt. Ltd. SCO-61, 3rd Floor, Old Judicial Complex, Civil Lines, Gurgaon-122001

    … Applicant 

AND IN THE MATTER OF IA-3778/2022:

(Under Section 60(5) of IBC, 2016 r/w Rule 11 of NCLT Rules, 2016)

HDFC Bank Limited,
Ms. Deepti Bhardwaj (Authorized Legal Manager), HDFC Bank House,
Senapati Bapat Marg, Lower Parel (West), Mumbai-400013

    … Applicant 

Versus Civil Lines, Gurgaon-122001

          … Respondent 

AND IN THE MATTER OF IA-3099/2023:

(Under Section 60(5) of IBC, 2016)

Page 2 of 148 Kotak Mahindra Bank Limited D-10, Local Shopping Centre, Vasant Vihar, New Delhi-110057

      … Applicant/Objector 

Versus Civil Lines, Gurgaon-122001

… Respondent  

AND IN THE MATTER OF IA-2959/2024:

(Under Section 60(5) of IBC, 2016 r/w Rule 11 of NCLT Rules, 2016)

Shyam Kishan Saraf 7/15, Forest Lane, Neb Sarai Extension,
New Delhi-110068

   … Applicant No. 1 

Banwari Lal Saraf 7/15, Forest Lane, Neb Sarai Extension,
New Delhi-110068

   … Applicant No. 2 

Versus Civil Lines, Gurgaon-122001

… Respondent 

AND IN THE MATTER OF IA-678/2022: (Under Section 60(5) of IBC, 2016 r/w Rule 11 of NCLT Rules, 2016)
M/s Grace Steel Private Limited Mr. Bhuvnesh Sarawat (Director) 158A, DDA Flats, Ghazipur, New Delhi-110027 … Applicant Versus Civil Lines, Gurgaon-122001 … Respondent

Page 3 of 148 AND IN THE MATTER OF IA-1732/2023: (Under Section 60(5) of IBC, 2016 r/w Rule 11 of NCLT Rules, 2016)

1. Mr. Jeetendra S Kaushal D-4, East Azad Nagar, Street No-5, New Delhi-110051

2. Mr. Harbhajan Singh 11-A/69, Lajpat Nagar, New Delhi-110024

3. Mr. Darpan Ghai (Legal Heir of Late Mr. Ravin Chander Ghai) F-1/20, Krishna Nagar, Delhi-110051

4. Mrs. Vandana Bhatnagar C-9/9153, Vasant Kunj, New Delhi-110070

5. Mr. Sushil Chander Khanna W-15/32, Western Avenue, Lane W-15, Sainik Farms, Delhi-110062

6. Mrs. Neelam Khanna W-15/32, Western Avenue, Lane W-15, Sainik Farms, Delhi-110062

7. Mr. Ravinder Kumar Ghai F-5/17, Krishna Nagar, Delhi-110051

8. Mr. Y. Puran Kumar 132, Sector 24, Chandigarh-160023
   … Applicants Versus Civil Lines, Gurgaon-122001 … Respondent

Page 4 of 148 AND IN THE MATTER OF IA-6746/2023: (Under Section 60(5) of IBC, 2016 r/w Rule 11 of NCLT Rules, 2016)

M/s Seriatim Enterprises LLP Mr. Sanjay Dhody, (Partner) F-70, GF, Poorvi Marg, Vasant Vihar, New Delhi-110057 … Applicant Versus Civil Lines, Gurgaon-122001 … Respondent

AND IN THE MATTER OF IA-4569/2023 (Under Section 60(5) of IBC, 2016 r/w Rule 11 of NCLT Rules, 2016)

Mrs. Aneeta Gupta E-6/1, Krishna Nagar, Delhi-110051
… Applicant Versus Civil Lines, Gurgaon-122001 … Respondent

Under Section: 7 of IBC, 2016 Order Delivered on: 07.03.2025 CORAM:

SH. ASHOK KUMAR BHARDWAJ, HON’BLE MEMBER (J) SH. SUBRATA KUMAR DASH, HON’BLE MEMBER (T)

PRESENT: For the Applicant : Adv Dhruv Gupta in IA-3778/2022. Adv. Niraj Kumar, Adv. Rajeev Verma in IA-2959/2024.

Page 5 of 148 For the RP
: Adv. Swapnil Gupta, Adv. Vaibhav Mendiratta, Adv. Sajal Jain, Adv. Abhinav Mishra, Mr. Atul RP in person. For the SRA : Sr. Adv. P. Nagesh, Adv. Harshal Kumar, Adv. Gaurav Verma, Adv. Himanshu. For the Kotak : Adv. Sanjay Bhatt, Adv. Sarthak Bhandari in IA-3099/ Mahindra Bank
2023, IA-5003/2021.

ORDER IA-5003/2021, IA-3778/2022, IA-678/2022, IA-3099/2023, IA-4569/2023, IA-6746/2023, IA-1732/2023 & IA-2959/2024: The IA-5003/2021 has been preferred under Section 30(6) r/w Section 31 of IBC, 2016 seeking approval of the Resolution Plan qua the Corporate Debtor submitted by Universal Aura Welfare Association, Universal Greens Buyers Association and Universal Business Park Owners Association (‘Resolution Applicant’) as approved by members of Committee of Creditor (‘CoC’) unanimously with 70.44% voting in the 18th meeting of CoC held on 08.09.2021.
2. Stating succinctly, the captioned main petition CP(IB)-456/ND/ 2018, was filed by Ms. Pallavi Joshi Bakhru against M/s Universal Buildwell Private Limited (‘Corporate Debtor’) under Section 7 of IBC, 2016 which was admitted to Corporate Insolvency Resolution Process (CIRP) vide order dated 03.07.2018 qua the Corporate Debtor and the CIRP commenced. Mr. Atul Kumar Kansal (‘Applicant’) appointed as IRP in terms of the admission order, was later confirmed as RP in the 3rd CoC meeting held on 12.09.2018.

Thereafter, the Applicant/RP filed an application bearing I.A. No. 1550/2019 under Section 30(6) of the Code before this Tribunal seeking

Page 6 of 148 approval of the resolution plan which was disposed of vide order dated 11.06.2021 with certain direction issued to CoC and Resolution Applicant. The relevant excerpt of the order dated 11.06.2021 reads thus:- “49. Now, in the light of position of law settled by the Hon'ble Supreme Court (Supra), we consider the contention of Mr. Sumant Batra, Advocate and we notice that the amount proposed to be paid in the Resolution Plan is approved by the CoC. Under Section 30(2)(b) of IBC read with Section 53 of IBC, 2016, it is the duty of the Resolution Professional to examine the Resolution Plan, whether the distribution to the Creditors is made in terms of the provisions of law and Regulations, thereafter the Resolution Professional shall place the same before the Committee of the Creditors u/s 30(3) IBC 2016 for its approval. The COC after considering the feasibility and viability, the manner of distribution proposed, may approve the Plan by not less than 66% of voting share u/s 30(4) of the IBC 2016. It is the commercial wisdom of the CoC to determine what amounts are to be paid to different classes and sub classes of creditors in accordance with the provisions of the Code and the Regulations made thereunder. It is seen that while deciding the amounts in the instant case, the CoC has considered the liquidation value placed by the Resolution Professional as well as the Resolution Applicant as mentioned in aforementioned paragraphs. Since the units, that have already been sold, are no longer an asset of the Corporate Debtor and consequently cannot be liquidated, their liquidation value has been provided as NIL. The COC after considering the same, approved the amounts proposed to be paid to Kotak Mahindra Bank Limited, Kotak Mahindra Prime Limited and similarly, to DHFL. Hence, we find, No force in the contention raised by the Ld. Council for the Objectors That the amounts which are proposed to be paid to the DHFL, Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited are contrary to the provision of Section 30(2)(b) of the IBC read with Section 53(1) of the IBC, 2016.

Page 7 of 148 50. However, we notice there is significant differences between the liquidation value submitted by the Two Valuers and valuation asssessed by the Resolution Professional and Resolution Applicant, therefore, we think it proper, to leave the matter upon the COC to reexamine this issue and if the properties/infrastructure in the projects of the corporate debtor is available for sale/disposal, the COC may consider taking steps for suitable correction of the Liquidation value of all the projects and subsequently, ask the Resolution Applicant to acccount for the same in the Resolution Plan.. 51. So far as the next contention raised by the Ld. Counsel appearing for the DHFL, Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited that that they are entitled to get the payment only in monetary terms is concerned, for this too, we would like to refer to the relevant paragraphs of the decision of Hon'ble Supreme Court in Jaypee Case (Supra), which are quoted below: -
“121.2. We would hasten to observe that in case a dissenting financial creditor is a secured creditor and a valid security interest is created in his favour and is existing, the entitlement of such a dissenting financial creditor to receive the amount payable could also be satisfied by allowing him to enforce the security interest, to the extent of the value receivable by him and in the order of priority available to him. Obviously, by enforcing such a security interest, a dissenting financial creditor would receive payment to the extent of his entitlement and that would satisfy the requirement of Section 30(2)(b) of the Code. In any case, that is, whether by direct payment in cash or by allowing recovery of amount via the mode of enforcement of security interest, the dissenting financial creditor is entitled to receive the amount payable in monetary terms and not in any other term.
122. The indications as emerging from the text of other provisions as also from the scheme of the Code, are to the effect that the resolution applicant, with approval of resolution plan, is to proceed on a clean slate rather than

Page 8 of 148 carrying the cargo of such debts which need to be satisfied (to the extent required) and jettisoned. The expressions payment and amount to be paid, when read in the context and on the canvass of the objects and purposes of the Code, in our view, these expressions only convey their ordinary meaning, as understood in ordinary business parlance, that is, delivery of money alone; and there is no reason to construe these expressions to be conveying the meaning of delivery of money or its equivalent. 123. A good length of arguments on behalf of IRP are devoted to the stand that, what CoC considers in sub- section (4) of Section 30 is the manner of distribution proposed; and such manner of distribution ought to be fair and equitable, as explained in Explanation 1 to clause (b) of Section 30(2). It is contended that if legislature intended the word payment to have a prescriptive meaning, that is, payment by way of payment of money only, there would have been no need to add Explanation 1 to clause (b) which provides that distribution under clause (b) to operational and dissenting financial creditors shall be fair and equitable because in such a case, the distribution would only mean a crystallised sum of money with no room to test if distribution was fair and equitable. The argument is, again, of stretching the plain words beyond their real intent and meaning. The said Explanation is for removal of doubts and for clarification that distribution in terms of clause (b) shall be fair and equitable to the creditors covered thereunder that is, operational and dissenting financial creditors. This Explanation appears to have been necessitated for the reason that quantification of the minimum amount payable under clause (b) of Section 30(2) is in the realm of certain guesswork or estimate with reference to the distribution envisaged by Section 53 of the Code. This Explanation cannot and does not provide meaning to the expressions payment and amount to be paid. These and other arguments of similar nature, could only be rejected. 123.1. A submission made on behalf of IRP suggesting estoppel against the dissenting financial creditor for having not raised the issue in the meeting of the Committee

Page 9 of 148 of Creditors also remains baseless. This is for the simple reason that no estoppel could operate against the statutory right of the dissenting financial creditor to receive payment in terms of Section 30(2)(b) of the Code.
123.2. The submission that commercial banks are permitted by the Banking Regulations Act, 1949 to swap the debt for land and equity has its own shortcomings, rather shortfalls. The expressions payment and amount to be paid and amount payable as occurring in Section 30(2) and Regulation 38(1) cannot be interpreted only for the purpose of banks as financial creditors; the provisions refer to financial creditors as such and it would be too far stretched to say that these expressions may have different meanings for different financial creditors in the manner that a financial creditor who could accept payment by any mode other than money could be paid by that mode and the other financial creditors who cannot accept anything except money shall be receiving payment in cash. This kind of interpretation would not only be reading words but even phrases and provisos in the statutory provisions, which is entirely impermissible. 123.3. Similarly, the suggestion that the Government and the Governmental bodies, which are not permitted by law to swap debt with equity or land will have to be paid by way of money and to that extent, the meaning of payment in the first part of clause (b) of Section 30(2) will have contextually different meaning, is, again, seeking to provide multiple sub-sects of the mode of payment, whereas no such differentiation or classification is indicated in the provisions under reference or in any other provision contained in the Code.
123.4. The suggestion about prejudice being caused to the assenting financial creditors by making payment to the dissenting one has several shortcomings. As noticeable, in the scheme of IBC, a resolution plan is taken as approved, only when voted in favour by a majority of not less than 66% of the voting share of CoC. Obviously, the dissenting sect stands at 34% or less of the voting share of CoC. Even when the financial creditors having a say of not less than 2/3rd in the Committee of Creditors choose to sail with the

Page 10 of 148 resolution plan, the law provides a right to the remainder (who would be having not more than 34% of voting share) not to take this voyage but to disembark, while seeking payment of their outstanding dues. Even this disembarkment does not guarantee them the time value for money of the entire investment in the corporate debtor; what they get is only the liquidation value in terms of Section 53 of the Code. Of course, in the scheme of CIRP under the Code, the dissenting financial creditors get, whatever is available to them, in priority over their assenting counterparts. In the given scheme of the statutory provisions, there is no scope for comparing the treatment to be assigned to these two divergent sects of financial creditors. The submissions made on behalf of assenting financial creditors cannot be accepted.
123.5. The other submissions and counters with reference to the phraseology of Section 8 of the Code do not require much dilation because, the said provision essentially relates to the dues of an operational debtor and the steps envisaged before commencement of insolvency resolution process. Nevertheless, payment for the purpose of the said provision is also of money transfer; and not by any other mode. 124. To sum up, in our view, for a proper and meaningful implementation of the approved resolution plan, the payment as envisaged by the second part of clause (b) of sub- section (2) of Section 30 could only be payment in terms of money and the financial creditor who chooses to quit the corporate debtor by not putting his voting share in favour of the approval of the proposed plan of resolution (i.e., by dissenting), cannot be forced to yet remain attached to the corporate debtor by way of provisions in the nature of equities or securities. In the true operation of the provision contained in the second part of sub-clause (ii) of clause (b) of sub-section (2) of Section 30 (read with Section 53), in our view, the expression payment only refers to the payment of money and not anything of its equivalent in the nature of barter; and a provision in that regard is required to be made in the resolution plan whether in terms of direct money or in terms of money recovery with enforcement of security

Page 11 of 148 interest, of course, in accordance with the other provisions concerning the order of priority as also fair and equitable distribution. We are not commenting on the scenario if the dissenting financial creditor himself chooses to accept any other method of discharge of its payment obligation but as per the requirements of law, the resolution plan ought to carry the provision as aforesaid. 52. In the light of aforesaid decision, when we consider the submissions, we find that herein the case in hand, although the amount which these three objectors are entitled to get has been quantified in the plan but the payment is proposed to be made only on happening of the certain events.
53. So far as the DHFL is concerned they will get the amount from the sale proceeds of the unsold inventory after construction and completion of the project. Similarly, for the payment of Rs. 3 crore proposed to be paid to the Kotak Mahindra Bank Limited and Kotak Mahindra Prime, no time frame is given for making the payment. Therefore, they will remain attached with the Corporate Debtor till the project gets completed. Therefore, in view of the decision (Supra) upon which the objectors have placed reliance, the dissenting financial creditors, who have chosen to quit the Corporate Debtor by not putting their voting share in favour of the proposed plan of Resolution, cannot be compelled to remain attached with the Corporate Debtor.
54. Therefore, for the reasons discussed above, in our considered view, the Resolution plan is violative of the provision of Section 30(2)(ii)(b) read with Section 53 of the IBC, 2016 and it is also contrary to the decision of the Hon'ble Supreme Court in the matter of Jaypee Kensington Boulevard Apartments Welfare Association & Ors. Vs. NBCC (India) Ltd. & Ors. in Civil Appeal No. 3395 of 2020.

Page 12 of 148 55. Hence, we find force in the contention raised on behalf of the aforesaid dissenting financial crditors/ objectors, that they are entitled to get the payment in terms of money only.
56. So far as the other contention raised by the objector's counsel that the Resolution Plan is not submitted in terms of the Code and Regulations, this issue has also been discussed by the Hon'ble Supreme Court in the Jaypee Case (Supra), wherein the Hon'ble Supreme Court has held that once the resolution plan is approved by the CoC, it is beyond the scope of the Adjudicating Authority to re-examine whether the Resolution Plan was submitted in accordance with the Code or Regulations.
57. Hence, we are of the considered view that this contention of the Ld. Counsel for the Objectors is beyond the ambit of Section 30(2)(b) of the IBC, 2016. Accordingly, we hereby reject this contention of the Ld. Counsel for the Objectors.
58. For the reasons discussed above, we are of the considered view that except the objection that DHFL, Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited are entitled to get their payments in monetary terms only, no other objections is liable to be accepted. Hence, all other objections raised on their behalf are rejected. X X X 68. In sequel to the discussion above, we conclude the matter in the following manner:
a) So far as the objections raised by the ‘other objectors’ except DHFL, Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited are concerned, we found no merit in their applications in the light of the decision of the Hon'ble Supreme Court in the Jaypee Case (Supra) on which the objectors had placed reliance. We have accordingly rejected their Objections and Dismissed the

Page 13 of 148 applications bearing no. CA/1686/2019, CA/1687/2019, CA/52/2020, IA/2664/2020 and IA/5533/2020.
b) As we held in the previous paragraphs that in the light of the decision of the Hon'ble Supreme Court in the Jaypee Case (Supra), the DHFL is entitled to get the amount in terms of money and they will not be compelled to remain attached with the Corporate Debtor till the project is completed. In our considered view, the mode of payment to them is contrary to the provision of law as well as the decision of Hon'ble Supreme Court in Jaypee Case (Supra) and to that extent it requires to be modified. Similarly, Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited are also entitled to get the payment of Rs. 3 Crore within a specified period. The period, which is not mentioned in the present plan, needs to be specified.
c) As observed by the Hon'ble Supreme Court in the Jaypee Case (Supra), the Adjudicating Authority is not empowered to modify the Resolution Plan, the only remedy available before the Adjudicating Authority is to remit the matter to the CoC to modify the resolution plan. d) So, under such circumstances, we have no option but to remit the Resolution Plan to the CoC to modify the Resolution Plan as regards to the payment of amounts in terms of money within a specific Period in the light of the decision of the Hon'ble Supreme Court in the Jaypee Case (Supra).
69. We further notice that in the instant case, the period of CIRP has already expired on 15.11.2019 and on the same day, the application for approval of Resolution Plan, which is under consideration, was filed. Though the maximum period for completion of the Corporate Insolvency Resolution Process as per second proviso of Section 12(3) of IBC, 2016 is

Page 14 of 148 330 days, in view of the decision of Committee of Creditors Essar Steel India Limited Vs. Satish Kumar Gupta and Ors. in Civil Appeal No. 8766-67 of 2019 reported in_2020 (8) SCC 531, the said provision is not mandatory. In para 79 of that judgement, the Hon'ble Supreme Court had held that “However, on the facts of a given case, if it can be shown to the Adjudicating Authority and/or Appellate Tribunal under the Code that only a short period is left for completion of the insolvency resolution process beyond 330 days, and that it would be in the interest of all stakeholders that the corporate debtor be put back on its feet instead of being sent into liquidation”. 70. Therefore, in such exceptional circumstances, when we are remitting the resolution plan back to CoC for modifications in terms of payments, as specified above, to the objectors namely, DHFL, Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited, we think it proper to extend the period of CIRP for 60 days from the date of this order after excluding the period from the date of filing of this application (IA 1550/2019) i.e. 15.11.2019 till the passing of this order. 71. Accordingly, we hereby the extend the CIRP by 60 days beyond the period of 330 days after excluding the period from the date of filing the present application bearing No. IA/1550/2019 i.e. 15.11.2019 till the passing of this order. The resolution professional is directed to inform and also hand over a copy of this order to the Resolution Applicant to modify the Resolution Plan in the light of aforesaid direction. He is further directed to convene the meeting of CoC within the extended period of CIRP and place the modified Resolution Plan before the CoC for approval. It is, however, made clear that except for the modification in payment conditions relating to the objectors namely, DHFL, Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited, which has to be made in terms of money within a specified period and re-

Page 15 of 148 examination of Liquidation value as specified in the aforementioned paragraph, while discussing this issue, no other issue shall be raised by any objector nor decided by the CoC.”

The aforementioned order passed by this Tribunal was assailed by Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited before Hon’ble NCLAT by filing Company Appeal (AT)(Ins.) No. 661 of 2021. The relevant excerpt of the judgment of Hon’ble NCLAT reads thus:- “6. Before we proceed further, we may notice paragraph 49 and 50 of the impugned order, which paragraphs have been prayed to be set aside by the Appellant. The Appellants have also prayed for a direction to the CoC to consider the Valuation Report submitted by the Registered Valuers while determining the valuation of assets of the Corporate Debtor and computing the liquidation value payable to the Appellant Nos.1 and 2. Paragraph 49 and 50 of the impugned order is as follows:

“49. Now, in the light of position of law settled by the Hon’ble Supreme Court (Supra), we consider the contention of Mr. Sumant Batra, Advocate and we notice that the amount proposed to be paid in the Resolution Plan is approved by the CoC. Under Section 30(2)(b) of IBC read with Section 53 of IBC, 2016, it is the duty of the Resolution Professional to examine the Resolution Plan, whether the distribution to the Creditors is made in terms of the provisions of law and Regulations, thereafter the Resolution Professional shall place the same before the Committee of Creditors u/s 30(3) IBC 2016 for its approval. The COC after considering the feasibility and viability, the manner of distribution proposed, may approve the Plan by not less than 66% of voting share u/s 3(4) of the IBC 2016. It is the commercial wisdom of the CoC to determine what amounts are to be paid to different classes and sub classes of creditors in accordance with the provisions of the Code and the Regulations made thereunder. It is seen that while deciding the amounts in the instant case, the CoC has considered the liquidation value placed by the Resolution Professional as well as the Resolution Applicant as mentioned

Page 16 of 148 in aforementioned paragraphs. Since the units, that have already been sold, are no longer an asset of the Corporate Debtor and consequently cannot be liquidated, their liquidation value has been provided as NIL. The COC after considering the same, approved the amounts proposed to be paid to Kotak Mahindra Bank Limited, Kotak Mahindra Prime Limited and similarly, to DHFL. Hence, we find, no force in the contention raised by the Ld. Counsel for the Objectors that the amounts which are proposed to be paid to the DHFL, Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited are contrary to the provision of Section 30(2)(b) of the IBC read with Section 53(1) of the IBC, 2016.

50. However, we notice there is significant differences between the liquidation value submitted by the Two Valuers and valuation assessed by the Resolution Professional and Resolution Applicant, therefore, we think it proper, to leave the matter upon the COC to reexamine this issue and if the properties/ infrastructure in the projects of the corporate debtor is available for sale/ disposal, the COC may consider taking steps for suitable correction of the Liquidation value of all the projects and subsequently, ask the Resolution Applicant to account for the same in the Resolution Plan.”
51. The Valuation Report of both the Valuers, thus, indicate that they have valued the super area available in the project Universal Business Park excluding the area which was covered by Conveyance Deed. The Valuers proceeded on the assumption that areas, which have been conveyed no title is left with the Corporate Debtor and rest of the area can be included in the valuation. The RP in its reply in the Appeal as well as in the reply before the Adjudicating Authority has brought the facts on the record, indicating that apart from conveying of the super area, the Corporate Debtor has also entered into Builder Buyer’s Agreement with the allottees and the BBA with the allottees with regard to super area in Universal Business Park was 1,65,115 sq. ft. In the reply filed by RP in the Appeal in paragraph 8, detailed facts have been reported, which is to the following effect:

Page 17 of 148 22. From the materials brought on record, it is clear that area which is covered by Conveyance Deed was 89,706 sq. ft., whereas total saleable area of the Universal Business Park was 2,15,915 sq. ft. Pleadings of RP was categorical that by BBA, area of 165,115.53 sq. ft. was allocated, which facts have not been disputed by the Appellants. The Appellants case rather is that execution of BBA does not amount to transfer/ sale under the provisions of the Transfer of Property Act, which plea has been specifically taken in paragraph 14 as extracted above. There can be no doubt about legal position that title is conveyed when Conveyance Deed is executed, but certain rights accrue to homebuyers under the BBA, which rights have been recognized by law Courts including the Hon’ble Supreme Court. Promoter, who has entered into a BBA with allottee and allotted a particular flat and received the payment has no right to transfer the same. Hence, the said unit is not available for the Corporate Debtor to again transfer and realise its value. From the pleadings on record, we thus, are of the view that allocation area of 165,115.53 sq. ft. is a matter of record and has to be accepted, since no other facts or material come on record.
23. We have noticed that in the Valuation Report, both the Valuers have proceeded to value the super area, which was left after deducting the area conveyed. The Valuers proceeded on the premise that the Corporate Debtor has no ownership with respect to the area, which has been conveyed and rest of the area can be valued for the purpose of valuation of the Corporate Debtor. On the record, the RP has given details of name of allottees, which were given BBA with the date of BBA. Annexure R-1 to the reply contains the details of BBA of Ground Floor and other Floors with the name of allottees and the date of BBA. All the BBA, which have been captured in Annexure R-1 are prior to September 2010. The details of areas sold through Conveyance Deed has also been given, which areas have already taken note by the Valuers. The stand taken by the RP and

Page 18 of 148 Resolution Applicant is that liquidation value of the Appellant has been treated as NIL, since on the date, the valuation was done, there was no super area left, which could be monetized for the Corporate Debtor. The Corporate Debtor has sold excess area both by Conveyance Deed and BBA. We are satisfied that by the BBA, executed prior to September 2010, when the charge and mortgage was created by Promoters in the project Universal Business Park, all areas were sold. The Valuers, technically were right in taking a view that those areas, which has been conveyed by Promoters, they do not have ownership, however, the Valuers proceeded to take into consideration the areas with regard to which no Conveyance Deed was executed to be the assets of the Corporate Debtor. 24. When we look into reality, which is apparent from the materials on record, it is clear that with regard to Universal Business Park, entire area was sold by Conveyance Deed and by BBA to the allottees and the Promoters have received the money through the Conveyance Deed and BBA and after execution of the BBA, the allottees acquired the right to receive possession of the units for which payments have been made.
25. In this context, we may notice the judgment of the Hon’ble Supreme Court, where the Hon’ble Supreme Court had occasion to consider the nature of right, which accrue through a BBA to allottee and the protection, which homebuyers are required from the Courts of Law. We may refer to the judgment of the Hon’ble Supreme Court in Bikram Chatterji v. Union of India (2019) 19 SCC 161, where the Hon’ble Supreme Court had occasion to consider housing and real estate allotment, Sale Deed, transfer of flats by builders/ developers to homebuyers. The Hon’ble Supreme Court was considering the real estate Project namely – Amrapali Group. Writ petitions under Article 32 were filed by homebuyers praying for various reliefs from the Hon’ble Supreme Court. In the above context Hon’ble Supreme Court while considering the BBA made following observation in paragraph 133 and 134 of the judgment:

Page 19 of 148 “133. The agreement initially executed in favour of homebuyers to purchase flats may not create any right in the property in praesenti, it will be only on the execution of the registered document that title is going to be perfected, but investment in project is only of homebuyers. In this case, as they have paid money invested in projects, it is for the courts to do complete justice between the parties and to protect the investment so made and interests of homebuyers and to ensure that they get the perfect title and the fruits of their hard earned money and lifetime savings invested in the projects.
134. On behalf of Bank of Baroda, learned Senior Counsel submitted that the agreement of promoter/ builder with homebuyers is unregistered as such, no right has been created in the immovable property in view of the provisions contained in Section 49 of the Registration Act. The submission ignores and overlooks the provisions of RERA which intends to prevent such frauds on homebuyers and ensure completion of projects and that of the agreement between promoters and buyers. There are various rights under the agreement as well as under RERA. The agreement entered into at the time of allotment is the basis of the investment in the projects made by homebuyers, it cannot be said to be a scrap of paper. It is their valuable investment which is required to be protected and cannot be permitted to be taken away by builder or secured creditors in an illegal manner. The provisions of Section 17 of the Registration Act no doubt provide that a document of title requires compulsory registration, no doubt registered document has to be executed that also has to be taken care of by the Court so as to protect the interest of homebuyers.”

26. In the above case before the Hon’ble Supreme Court, the Banks, who had security interest contended that they have agreements with the Promoters. In reference to the claim of the Banks regarding mortgage, Hon’ble Supreme Court had observed that in the facts and circumstances of the case, rights or interest of the allottees are not affected by the mortgage created by the Bankers. In paragraph 136 of the judgment, following has been held: “136. The learned Senior Counsel on behalf of Bank of Baroda submitted that the provisions of Section 11(4)(h) of RERA provides

Page 20 of 148 that the promoter, after he executes an agreement for sale for any apartment, plot or building, cannot mortgage or create a charge on such an apartment, plot or building, as the case may be, and if any such mortgage or charge is made or created then it shall not affect the right and interest of the allottee who has taken or agreed to take such apartment, plot or building, as the case may be. The provision has a non obstante clause. As the provision has given an overriding effect by non obstante clause, the provision is of no help to the banks as the agreement had been by promoters with homebuyers entered into earlier in point of time to the creation of the mortgage. There could not have been any mortgage created subsequently and even if validly created, it would not affect the right and interest of the allottee as intended by RERA. Thus, the right and interest of the allottee are safeguarded by virtue of the provisions contained in Section 11(4)(h). As the project was pending, the provision intends to confer a right on the allottee and save the allottees and also their interests from such liability. Even if the provision is held not applicable on the ground that RERA came into force later, since there was no valid mortgage as held by us, it was incapable of affecting the right or interest of the allottee. Had it been ensured that the money due to Noida and Greater Noida Authorities was paid by the promoters to the authorities, the fraud of siphoning of money would not have taken place to the extent it has been done. Moreover, the money borrowed from banks has not been invested in the projects. In fact, projects required no funding. It would be iniquitous to charge the allottees with the bankers’ money. Thus, in the peculiar facts and circumstances of the case, we hold that rights or interests of the allottees are not at all affected by the mortgage created by the bankers or by the dues of the Noida or Greater Noida Authorities.”

27. When we revert to the facts of the present case, it is clear that the entire super area of Universal Business Pak was conveyed by Sale Deeds and by BBA, rather, the facts indicate that total area conveyed/ allotted was more than total area of Ground Floor and all the Floors. When area has been allotted to homebuyers, who have also paid the amount as per the agreement, homebuyers get an interest to receive the possession of the unit.

Page 21 of 148 28. The Adjudicating Authority after considering the facts in the impugned order has considered all aspects of the matter and has noted the facts and circumstances, which were brought by the parties on record. The Adjudicating Authority has also noticed and extracted the summary of the Resolution Plan in its order. In paragraph 41 of the impugned order, following has been observed: “41. So far as the Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited are concerned, they are proposed to be paid Rs.3 crores on the ground that the entire area under the Universal Business Park project has been sold and there are no assets belonging to the Corporate Debtor left under this project. Accordingly, the liquidation value of the assets belonging to the Corporate Debtor under this project is shown as Nil in the Part-I of the Resolution Plan. It is also mentioned that they have mortgage right over the land, on which the project namely, “the Pavillion” is situated in Sector 70A, Mauza Palra, Tehsil & Distt. Gurugram, Haryana. As shown in the Part-II of the Resolution Plan, the project is yet to be started and they will get realization of the amount in the manner as stated in Part-II of the Plan.”

29. We have also noticed the caveats given by the Valuers in their Report. The valuation of the different projects including project Universal Business Park was with the caveats as noted above. The Valuers did not enter into issue of encumbrance over the assets. The finding has been recorded by the Adjudicating Authority in paragraph 49 that since the units have already been sold, are no longer the asset of the Corporate Debtor, hence, the liquidation value of the Universal Business Park project is NIL. The Adjudicating Authority has rightly come to the above conclusion after considering the facts and circumstances of the present case. We fully concur with the observations made by the Adjudicating Authority in paragraph 49.
30. Now, we come to the submission of the learned Counsel for the Appellants that the Adjudicating Authority committed error in directing the CoC to re-examine the issue of significant differences between the

Page 22 of 148 liquidation value submitted by the two Valuers . As per statutory scheme under the CIRP Regulations and the IBC Code, the liquidation value arrived by the valuers serves an important factor in the entire resolution process. The liquidation value fixed by the Valuers cannot be ignored in the resolution process. It is true that CoC on any valid reason can take a call to ask for any fresh valuation due to any relevant circumstances, but the valuation done by the Registered Valuers and average of liquidation value taken up by the Valuers serves the specific purpose and cannot be allowed to be disregarded by the CoC. In event, it is accepted that the CoC can change the liquidation value on its own, that may lead to unsatisfactory results. We, thus, are of the view that liquidation value found by the Registered Valuers cannot be allowed to be changed by the CoC. We, thus, are satisfied that direction by Adjudicating Authority to CoC to re-examine the issue of significant differences between liquidation value submitted by two Valuers was uncalled for. We may however, hasten to add that in the present case, liquidation value, which was to be ascribed to the Appellant was an issue, which cannot be said to have determined by the Valuers in their Valuation Report. Valuers in their Valuation Report has added a caveat, which we have already noticed, which clearly left the issue to be determined while allocating the amounts to be paid to the dissenting Financial Creditors. Thus, in the facts of present case, we having concurred with the finding of the Adjudicating Authority that liquidation value of the Appellant was NIL, we see no reason to maintain the direction issued in paragraph 50.
31. In view of the foregoing discussions, we are of the view that observations and directions in paragraph 49 needs to be affirmed, whereas directions issued in paragraph 50, deserves to be deleted. We are further of the view that relief (b) and other reliefs claimed in the Appeal by the Appellants cannot be granted.

Page 23 of 148 32. In result of the foregoing discussions, we dismiss the Appeal subject to deletion of paragraph 50 of the impugned order dated 11.06.2021. Parties shall bear their own costs.”

The Applicant/RP apprised the CoC regarding the order passed by this Tribunal and placed the order before it in the 16th meeting held on 29.06.2021 wherein Mr. Jayant Mehta, Senior Counsel was proposed to be engaged for legal opinion particularly in matter of re-examination of liquidation value. Relevant excerpt of the legal opinion of Mr. Jayant Mehta, Senior Counsel placed before the CoC in its 17th meeting held on 05.08.2021 reads thus:-
“21.1.5. Therefore the calculation of liquidation value must exclude the value of such number of units, which are already subject to ATSs/BBAs and it is only any balance consideration payable in respect thereof and the unsold units that can be taken as the asset of the corporate debtor that can be realized by way of sale thereof. 21.2.2 Therefore, only the units which are unsold should be treated as the realizable asset of the corporate debtor. For the sold units, the value to the corporate debtor can only be the difference if any between the receivable from the unsold units and the cost of construction as any purchaser of the corporate debtor, even in liquidation, would not be able to purchase the property free of rights created by the existing ATSs/BBAS.”

In the 17th meeting itself, the CoC noted that there is no need to have fresh valuation as it is not the subject matter of dispute and that only issue is to re- examine the liquidation value payable to secured creditors in view of the fact that there was unsold inventory or limited unsold inventory available with the

Page 24 of 148 Corporate Debtor in event of liquidation. The issue of overselling of area, non- obtaining of NOC from secured creditors, etc. were also discussed in the aforementioned meeting. Further, the Resolution Applicant proposed to make arithmetic changes and re-submit the resolution plan. The agenda regarding seeking extension of CIRP period was put to vote and approved by 93.36% voting in favour.
7. Ergo, an application for extension of CIRP period by 60 days could be preferred by the Applicant/RP wherein CIRP period was extended by 45 days i.e. till 24.09.2021 in terms of order dated 07.09.2021 passed by this Tribunal. 8. The resolution plan was placed before the CoC for approval in its 18th CoC meeting held on 08.09.2021, in terms of Section 30(4) of the Code. The relevant excerpt of the resolution passed by the CoC in said meeting and the results of e- voting noted therein reads thus:- “Further resolved that resolution professional be and is hereby authorised to file an application for approval of resolution plan before Hon'ble National Company Law Tribunal in terms of Section 30(6) of Insolvency & Bankruptcy Code, 2016.” X X X

A consolidated result of entire voting after considering provisions of Section 25A(3A) of Insolvency and Bankruptcy Code, 2016 is presented below;

Page 25 of 148

Result of Voting:-

The above resolution was required to be passed by a vote of not less than 66 % of voting share of the financial creditors. The above resolution was voted 70.44% voting in favour of resolution. Hence, the above resolution stood passed.”

It is submitted by the Applicant/RP, that the CoC in its 17th and 18th meeting deferred to decide on estimate of amount required to meet liquidation cost and liquid assets available to meet the same in terms of Regulation 39B of CIRP Regulations; sale of CD as going concern in terms of Regulation 39C of CIRP Regulations; and determination of fees of liquidator in terms of Regulation 39D of CIRP Regulations.

Page 26 of 148 10. The Applicant/RP in terms of Section 30(2)(b)(ii) of the Code calculated the liquidation value for the Financial Creditors on the basis of unsold area available in the project which they financed. However, the Secured Financial Creditors have not concurred with this view of the Applicant/RP. The Liquidation Value payable to the Secured Financial Creditors after taking the unsold area in respective project into the consideration reads thus:-

It has been espoused by the Applicant/RP that Applicant in terms of the directions issued by this Tribunal vide order dated 11.06.2021, the Resolution

Page 27 of 148 Plan has been modified by the SRA and in the modified plan, provision has been made for payment to DHFL and Kotak Bank. The revised provision made in consonance with the order passed by this Tribunal reads thus:- a. On approval of the Resolution Plan by the Adjudicating Authority, DHFL shall be paid Rs. 44.81 Crores on or before 180 days of approval of the resolution plan.
b. Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited shall be paid Rs. 3 Crores on or before 180 days of approval of resolution plan by adjudicating authority. The addendum to the plan providing as above has been reproduced herein below in later part of the order. It is also the case of the RP that the timeline introduced in payment would ensure the payment in terms of the plan would be made to dissenting financial creditors in priority. 12. The Applicant has submitted following Bank Guarantee as Performance Security for which renewal is in process:-

The details regarding fair value and liquidation value of the CD, the distribution of the resolution plan amount amongst the stakeholders, and

Page 28 of 148 compliances are given in the “Compliance Certificate” filed by the Applicant/RP in Form ‘H’ as provided under Regulation 39(4) of the CIRP Regulations, annexed as Annexure-J to the application, relevant excerpt of which is reproduced hereinbelow for the purpose of instant reference:-

*the liquidation value attributable to the financial creditors after taking into consideration the unsold area in the respective project is as under:

Page 29 of 148

Page 30 of 148

Page 31 of 148

Page 32 of 148

• Apart from this amount, as per Part-2 of resolution plan, Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited will also be part of distribution from remainder of assets of corporate debtor as per Section 53 of Insolvency & Bankruptcy Code, 2016

** SIDBI will get its share out of distribution from remainder of assets of corporate debtor as per Section 53 of Insolvency & Bankruptcy Code, 2016 as proposed in Part-2 of resolution plan.

$ No payout has been proposed for M/s Sunflame Enterprises Limited under the plan but it has been proposed that Sunflame Enterprises Limited shall be treated as allottee for all the units mortgaged to it and shall be given treatment accordingly.

$$ Resolution applicant is proposing delivery of flats / units to allottees of 3 projects namely, Universal Aura, Universal Greens and Universal Business Park and proposing claimants of other projects namely, Universal Square, The Pavillion, Universal Trade Tower and Universal Prime shall be taken care under Part-2 of resolution plan where liquidation for remainder of assets has been proposed and distribution shall be in accordance with Section 53 of Insolvency & Bankruptcy Code, 2016.

The financial outlay and sources of funds given in the plan reads thus:- “SOURCE OF FUNDS

The total expenditure under the Resolution Plan is 192.27Cr. The sources of fund for the said expenditure as detailed in the Cash Flow Projections enclosed as Annexure- UG10 is as under:

Page 33 of 148

It can be seen from Page 13 of the Resolution Plan that there is a provision contained regarding payment of CIRP cost which reads thus:-
“CIRP Cost
The total CIRP Cost till 30.09.2019 as communicated by the Resolution Applicant is 4,94,15,653/-. The entire CIRP cost shall be paid by the three Associations in the consortium in the ratio of the claim admitted by Resolution professional in respect of their Project. The sharing ratio between Universal Greens, Universal Aura and Universal Business Park works out to 18.53%, 61.69% and 19.78% respectively (Annexure-B). As such these three Associations shall contribute an amount of 91,56,063/-; 3,04,86,848/; and 97,72,742/- respectively. Any revision in claim ratio due to further admission of claims by RP shall not affect allocation further. Moreover if any enhancement in the CIRP Cost upto the date of approval of Resolution Plan by Hon'ble NCLT, the associations undertakes to pay the enhance amount as per their share with above mentioned CIRP cost.

The CIRP Cost if any paid by the COC members till date shall be reimbursed under this Resolution Plan from the amount so earmarked.

The amount of CIRP Cost pertaining to the Projects under Part-II of this plan wherein the claims are proposed to be settled after realisation of remaining assets of Corporate Debtor shall be reimbursed to the respective Associations/Demerged Companies on realisation of the proceeds under Part-II of this Plan.”

The Resolution Plan provides for implementation schedule/sequence which reads thus:-

Page 34 of 148 “Implementation Schedule/Sequence

The entire construction activity will take 9 months from effective date to get the building operational. The construction / refurbishment activities shall be implemented as follows:-

Approval of Resolution Plan by NCLT/ Adjudicating Authority.

Approval from RERA if required (although main Building is constructed no additional construction is involved)

Approval/Extension/Transfer of License.

Opening of Escrow account to collect funds from Unit Holders.

Forensic Audit/Due Diligence to be undertaken by Resolution applicant for his internal purpose

The time of 9 months after forensic audit/due diligence is subjected to any force majeure and any time lost to any court proceedings or any litigation.

No other financial obligation of Corporate Debtor or any interest, penalty is put on this project except to the extent of proposed under this resolution plan.

The effective date:-
Effective date for this resolution plan is later of the following dates:-

1. Date of approval of resolution plan
2. Date on which resolution applicant gets control and physical possession of all assets of Universal Business Park and original title deeds mortgaged with the banks along with all relevant papers.
3. Date on which license gets renewed or reinstate through order of NCLT.
4. The resolution has been prepared keeping in mind the IM provided by RP and we have done proper due diligence as duty of Resolution Applicant before relying on the information. However, Unit holders by virtue of affidavits/Undertakings are ready to bear the incidental excess amount, if any.

Page 35 of 148 Effective date shall be suitably extended if there is any stay or reinstate from NCLT or any other court that restrict implementation of resolution plan.”

The Resolution Plan also contain the provisions regarding appointment of Monitoring Agency for supervision of implementation of the Resolution Plan which reads thus:-
“Appointment of Monitoring Agency for supervision of implementation of the Resolution Plan:-

Resolution Applicant proposes the constitution of monitoring committee as under to supervise the implementation of plan:-

1. A person nominated by Hon'ble NCLT (Remuneration to be decided by Hon'ble NCLT and to be shared by all three Associations in share of Claims).

2. A Legal professional nominated by Resolution Applicant (Remuneration to be decided by the Resolution Applicant and to be shared by all three Associations in share of Claims).

3. One representative from each association i.e. Universal Aura, Universal Green, Universal Business Park.

4. One representative from lenders as nominated by them.”

The SRA also sought various Reliefs and Concessions enumerated at Page 21 of the Resolution Plan. Nevertheless, the SRA has given an undertaking in form of Note that irrespective of the grant of relief and concessions by this Adjudicating Authority, the Plan would be binding upon the Resolution Applicant. The relevant excerpt of the undertaking in the Plan reads thus:- “Note: All the reliefs sought by Resolution Applicant is essential for successful and viable resolution plan but if any or all of above are not

Page 36 of 148 been granted by Hon'ble NCLT, it is submitted that this resolution plan shall be binding upon resolution applicant.”

The Applicant/RP has placed on record Affidavit of Resolution Applicants under Sec. 29A of the Code. The Affidavits are available at Page Nos. 259-264, 343-3533, 459-464 and 496 of Volume-3 of the application. One of the affidavits
reads thus:-

Page 37 of 148

In Consolidated Undertaking submitted by Welfare Association in Resolution Plan the SRA specifically averred that the plan is not in contravention of any of the provisions of the law. The Clauses 1(f) of the undertaking reads thus:-
“(f) The Resolution Plan submitted by us does not contravene any of the provisions of law for the time being in force;”

The SRA has filed an Addendum dated 05.08.2021 to Resolution Plan wherein it highlighted the modifications made in the Resolution Plan, in pursuance to the order of this Tribunal dated 11.06.2021, which reads thus:-

Page 38 of 148

Page 39 of 148

The addendum further provides with Payment Matrix under the Plan which is as follows:-

Objection filed in IA-3778/2022: 23. The captioned application has been preferred by HDFC Bank Limited (“Applicant Bank/Objector”) seeking direction and raising objection to the Resolution Plan filed under Section 30(6) of the Code vide IA-5003/2021.

The salient plea espoused in the application/written submissions are as follows:-

Page 40 of 148 a. The Resolution Plan as approved by the CoC of Universal Buildwell Private Limited (Corporate Debtor) has erroneously included the assets of Corporate Debtor units bearing the following description: Unit Nos. 618- 626, having super area 8702 sq. ft. at 6th Floor, Universal Business Park, Sector 66, Badshahpur, Gurgaon (collectively, “Property”). b. The Property is owned by M/s Nayanika Holding Pvt. Ltd. (“Nayanika Holdings”) upon which the sole and exclusive charge in the nature of mortgage vests with the Applicant Bank/Objector. c. The Property was purchased by Nayanika Holdings from the Corporate Debtor under a registered Conveyance Deed dated 14.10.2015, much prior to initiation of CIRP, which remains unchallenged till date and the question of title to the Property in favor of Nayanika Holdings remains established. d. Nayanika Holdings had availed a secured Loan Facility to the tune of INR 1,05,00,00,000/- from the Applicant Bank/Objector which was secured by way of creation of mortgage over the Property. The charge was also registered with the ROC. e. Initially, Nayanika Holdings paid its EMIs in accordance with the repayment schedule but later the Applicant Bank/Objector received an email dated 06.05.2022 written by Sanjeev Malhotra (co-borrower), acting for and on behalf of Nayanika Holdings, seeking deferment of instalments due and payable towards the subject loan facility citing his inability to repay the loan on the grounds of pending litigation against the Developer-

Page 41 of 148 Corporate Debtor, wherein the property was unavailable for his use as a consequence of the proceedings.
f. Aggrieved by the inclusion of the Property as an asset of the Corporate Debtor, the Applicant Bank/Objector approached the Respondent/RP on and around 22.07.2022 seeking release of the Property indicating that the Property belonged to Nayanika Holdings and that the Applicant Bank/ Objector had the sole and exclusive charge thereon. In his response dated 22.07.2022, the Respondent/RP casually claimed, inter alia, that the Resolution Plan in respect of the entire premises comprised in Universal Business Park was approved by the COC and the same was pending adjudication before this Adjudicating Authority further claiming that the area sold is more than the available area and the conveyance deed was executed without obtaining the Occupation Certificate. g. The Applicant Bank/Objector is gravely prejudiced by the act of inclusion of the property over which it holds a valid and subsisting charge. h. It is trite law that NCLT is not a civil court and can only exercise the powers within the contours of the jurisdiction prescribed by the statute. In terms of Section 18(1)(f)(i) & (vi) of the Code read with the Explanation thereto, IRP can take control only of ‘assets’ over which the Corporate Debtor has ‘ownership rights’. However, assets owned by third parties are specifically excluded. Further, where the ownership is disputed, Section 18(1)(f)(vi) provides for control over assets subject to determination of ownership by

Page 42 of 148 a court or authority, meaning thereby that NCLT cannot decide the issue of ownership or possession. i. Further, a perusal of Section 25(2)(b) of the Code makes it amply clear that whenever the Corporate Debtor has to exercise rights in judicial proceedings, the RP cannot short-circuit the same and bring a claim before the NCLT.
j. When the contours of NCLT’s powers are defined as noted above, no relief in equity can be granted extending to include the Units or the area within the Resolution Plan purely on account of difficulty in implementing the Conveyance Deed. It is trite law that NCLT does not have jurisdiction in equity that can operate independent of statutory provisions. Reliance is placed on the judgment of Hon’ble Supreme Court in Pratap Technocrats (P) Ltd & Ors vs. Monitoring Committee of Reliance Infratel Limited & Anr (Civil Appeal No. 676 of 2021). The relevant excerpt of the judgment reads thus:- “25 The function of the Adjudicating Authority under Section 31 is to determine whether the resolution plan “as approved by the CoC” under Section 30(4) “meets the requirements” under Section 30(2). If the Adjudicating Authority is satisfied that the resolution plan, as approved, meets the requirements under sub-Section (2) of Section 30, “it shall by order approve the resolution plan” which shall then be binding on the Corporate Debtor and all stakeholders, including those specifically spelt out:

“31. (1) If the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requirements

Page 43 of 148 as referred to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force, such as authorities to whom statutory dues are owed, guarantors and other stakeholders involved in the resolution plan.”

26 The jurisdiction which has been conferred upon the Adjudicating Authority in regard to the approval of a resolution plan is statutorily structured by sub-Section (1) of Section 31. The jurisdiction is limited to determining whether the requirements which are specified in sub-Section (2) of Section 30 have been fulfilled. This is a jurisdiction which is statutorily-defined, recognised and conferred, and hence cannot be equated with a jurisdiction in equity, that operates independently of the provisions of the statute. The Adjudicating Authority as a body owing its existence to the statute, must abide by the nature and extent of its jurisdiction as defined in the statute itself. 32 In K Sashidhar (supra), Justice A M Khanwilkar, speaking for the two-Judge Bench, held:

“57. On a bare reading of the provisions of the I&B Code, it would appear that the remedy of appeal under Section 61(1) is against an “order passed by the adjudicating authority (NCLT)”, which we will assume may also pertain to recording of the fact that the proposed resolution plan has been rejected or not approved by a vote of not less than 75% of voting share of the financial creditors. Indubitably, the remedy of appeal including the width of jurisdiction of the appellate authority and the grounds of appeal, is a creature of statute. The provisions investing jurisdiction and authority in NCLT or NCLAT as noticed earlier, have not made the commercial decision exercised by CoC of not approving the resolution plan or

Page 44 of 148 rejecting the same, justiciable. This position is reinforced from the limited grounds specified for instituting an appeal that too against an order “approving a resolution plan” under Section 31. First, that the approved resolution plan is in contravention of the provisions of any law for the time being in force. Second, there has been material irregularity in exercise of powers “by the resolution professional” during the corporate insolvency resolution period. Third, the debts owed to operational creditors have not been provided for in the resolution plan in the prescribed manner. Fourth, the insolvency resolution plan costs have not been provided for repayment in priority to all other debts. Fifth, the resolution plan does not comply with any other criteria specified by the Board. Significantly, the matters or grounds—be it under Section 30(2) or under Section 61(3) of the I&B Code—are regarding testing the validity of the ―approved‖ resolution plan by CoC; and not for approving the resolution plan which has been disapproved or deemed to have been rejected by CoC in exercise of its business decision.

58. Indubitably, the inquiry in such an appeal would be limited to the power exercisable by the resolution professional under Section 30(2) of the I&B Code or, at best, by the adjudicating authority (NCLT) under Section 31(2) read with Section 31(1) of the I&B Code. No other inquiry would be permissible. Further, the jurisdiction bestowed upon the appellate authority (NCLAT) is also expressly circumscribed. It can examine the challenge only in relation to the grounds specified in Section 61(3) of the I&B Code, which is limited to matters “other than” enquiry into the autonomy or commercial wisdom of the dissenting financial creditors. Thus, the prescribed authorities (NCLT/NCLAT) have been endowed with limited jurisdiction as specified in the I&B Code and not to act as a court of equity or exercise plenary powers.

59. In our view, neither the adjudicating authority (NCLT) nor the appellate authority (Nclat) has been endowed with the jurisdiction to reverse the commercial wisdom of the dissenting financial creditors and that too on the specious

Page 45 of 148 ground that it is only an opinion of the minority financial creditors…...” (emphasis supplied)

The Court, also held (in paragraph 62) that the legislative history of the IBC indicated that “there is a contra indication that the commercial or business decisions of financial creditors are not open to any judicial review by the adjudicating authority or the appellate authority‖.

40 Certain foreign jurisdictions allow resolution/reorganization plans to be challenged on grounds of fairness and equity. One of the grounds under which a company voluntary arrangement can be challenged under the United Kingdom‘s Insolvency Act, 1986 is that it unfairly prejudices the interests of a creditor of the company. The United States‘ US Bankruptcy Code provides that if a restructuring plan has to clamp down on a dissenting class of creditors, one of the conditions that it should satisfy is that it does not unfairly discriminate, and is fair and equitable. However, under the Indian insolvency regime, it appears that a conscious choice has been made by the legislature to not confer any independent equity based jurisdiction on the Adjudicating Authority other than the statutory requirements laid down under sub-Section (2) of Section 30 of the IBC.”

k. Inclusion of the property as an asset of the Corporate Debtor lies in the teeth of the decision of the Hon’ble Supreme Court in the matter of Municipal Corporate of Greater Mumbai (MCGM) vs. Abhilash Lal (Civil Appeal No. 6350 of 2019), wherein the Hon’ble Supreme Court observed that the provisions of the IBC are of importance when the property is of the debtor and not when a third party is involved.

Page 46 of 148 l. In view of the provisions of the Code, unless a transaction is sought to be challenged as a ‘preferential’ or ‘fraudulent’ transaction, the Adjudicating Authority ceases to have jurisdiction over the third party.
m. It is no longer res integra that a Resolution Plan would be binding on all stakeholders only upon its approval by the Adjudicating Authority under Section 31 of the Code. In fact, it is trite law that only upon approval by the NCLT under Section 31(1) of the IB Code, pursuant to subjective satisfaction about the plan’s conformity with Section 30(2) of IB Code, does the plan become binding on the stakeholders in terms of judgment of Hon’ble Supreme Court in the matter of Ghanashyam Mishra and Sons Private Limited v. Edelweiss Asset Reconstruction Company Limited [(2021) 9 SCC 657]. The relevant paras of the judgment reads thus:-
“93. As discussed hereinabove, one of the principal objects of the I&B Code is providing for revival of the corporate debtor and to make it a going concern. The I&B Code is a complete Code in itself. Upon admission of petition under Section 7 there are various important duties and functions entrusted to RP and CoC. RP is required to issue a publication inviting claims from all the stakeholders. He is required to collate the said information and submit necessary details in the information memorandum. The resolution applicants submit their plans on the basis of the details provided in the information memorandum. The resolution plans undergo deep scrutiny by RP as well as CoC. In the negotiations that may be held between CoC and the resolution applicant, various modifications may be made so as to ensure that while paying part of the dues of financial creditors as well as operational creditors and other stakeholders, the corporate debtor is revived and is made an on-

Page 47 of 148 going concern. After CoC approves the plan, the adjudicating authority is required to arrive at a subjective satisfaction that the plan conforms to the requirements as are provided in sub-section (2) of Section 30 of the I&B Code. Only thereafter, the adjudicating authority can grant its approval to the plan. It is at this stage that the plan becomes binding on the corporate debtor, its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan. The legislative intent behind this is to freeze all the claims so that the resolution applicant starts on a clean slate and is not flung with any surprise claims. If that is permitted, the very calculations on the basis of which the resolution applicant submits its plans would go haywire and the plan would be unworkable. 102.1. That once a resolution plan is duly approved by the adjudicating authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the adjudicating authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan.” 25. A perusal of the aforesaid objection raised by the HDFC Bank vide I.A. No. 3778/2022 indicates that the Applicant Bank has prayed to exclude certain units from the Universal Business Park project located at Sector 66, Badshahpur, Gurgaon from the purview of the plan or in the alternative, has prayed for rejection of the plan. The Applicant Bank has contended that

Page 48 of 148 Nayanika Holdings had availed a secured Loan Facility to the tune of INR 1,05,00,00,000/- from the Applicant Bank/Objector which was secured by way of creation of mortgage over the concerned units and that such charge was also registered with the ROC. In this regard, it is pertinent to note that the RP had filed its reply to the said I.A. wherein it was emphasized that this Adjudicating Authority while disposing of C.A. No. 1550/2019 vide order dated 11.06.2021 had specifically noted that apart from the directions to modify the resolution plan on a limited point, no other issue would be raised by any objector nor decided by CoC. Moreover, the Applicant Bank in the present I.A. is not a financial creditor of the CD but has extended the loan facility to a unit holder in the Universal Business Park project. Furthermore, the loan agreement was executed between the Applicant Bank and Nayanika Holdings, and the Corporate Debtor was not a party to it. Therefore, any default under the loan agreement by the debtor i.e. Nayanika Holdings, does not give a locus to the creditor i.e. the Applicant Bank, to object to a resolution plan submitted qua Corporate Debtor. Relevant excerpt of the loan agreement, indicating the parties to it, reads thus: -

[***]

Page 49 of 148

The Applicant Bank has also enclosed with the IA a ‘Memorandum Recording Past Transactions of Creation of Mortgage by Delivery of Title Deeds’ to emphasise that Nayanika Holdings had deposited title deeds of unit no. 618-626 located at 6th Floor of Universal Business Park to secure the loan facility extended by the Applicant Bank. Relevant excerpt of aforementioned memorandum reads thus:

Page 50 of 148

Page 51 of 148

[...]

As can be seen from the aforesaid documents enclosed by the Applicant Bank with the IA, the loan agreement as well as the document recording the mortgaging of the unit no. 618-626 located at 6th Floor of Universal Business Park was executed between the Applicant Bank and Nayanika Holdings, and was not a tripartite agreement involving the Corporate Debtor. Apparently, as per the stand taken by Applicant itself, it is not open for this Tribunal to determine the disputed issue between the Applicant and Nayanika Holdings. It is for the Applicant to resort to the remedy available to it before the appropriate forum in

Page 52 of 148 accordance with law to seek its relief. We find merit in the contention of the RP that the Applicant Bank has no locus to object to a resolution plan which already stands approved by the CoC. Furthermore, as already noted in the order dated 11.06.2021 of this court, no other issue would be raised by any objector nor decided by CoC. In the wake, I.A. 3778/2022 stands dismissed.
Objection filed vide IA-3099/ 2023: 27. The captioned IA has been filed by Kotak Mahindra Bank Limited (Objector No. 1) and Kotak Mahindra Prime Limited (Objector No. 2), both being dissenting Secured Financial Creditor to the Resolution Plan dated 05.08.2021 filed by the RP, with the prayer to set aside the Resolution Plan submitted by the SRAs on the ground of it being non-compliant to Section 30(2)(b) & (e) r/w Section 30(4) of the Code r/w Regulation 38(1)(a) & (b) of the CIRP Regulations.

The contentions raised by the Applicant/Objector in the application/written submission could be summarized as under: - a. The Resolution Plan is non- complaint with the decision of the Hon’ble Supreme Court in Jaypee Kensington Boulevard Apartments Welfare Association & Ors. vs. NBCC (I) Ltd. & Ors. [2022 1 SCC 401]:- (i) In the aforementioned case, it was held that a dissenting financial creditor is required to be paid an “amount” quantified in terms of the “proceeds” of assets receivable under Section 53 of the Code and that the “amount payable” is to be paid in priority over their assenting counterparts and further that the statute refers only to the sum of money and nothing else.

Page 53 of 148 (ii) The Resolution Plan submitted by RP contains Part-I and Part-II wherein Part- I provide for an upfront payment of Rs. 3 Crores to dissenting creditor and Part-II is ambiguous and only proposes that the secured creditors, including the Objector, can enforce their security ergo there is no certainty with respect to either the amount or the time within which the dissenting creditors will be paid.
(iii) A dissenting FC is required to be paid the liquidation value upfront in cash and a Resolution Plan cannot force a dissenting creditor to continue its association with the Corporate Debtor until the assets of the CD is liquidated. Therefore, the plan is in direct contradiction to Jaypee Kensington (supra).
(iv) The Plan of permitting realization of the certain securities, that too to certain creditors, is contrary to the provisions of Section 30(2) of the IBC r/w Regulation 38(1)(b) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 which contemplates payment of liquidation value to a dissenting creditor. (v) The Plan, in its present form, is in complete contradiction of Section 30(2)(b)(ii) of IBC r/w Section 53 of the Code in terms of the treatment of the dissenting creditor and the manner of distribution.

b. The Liquidation Value as calculated by the registered valuers has been ignored and the RP and SRA have arbitrarily fixed the valuation of the Universal Business Project as ‘NIL’:-

Page 54 of 148 (i) The liquidation value of the assets of the CD as determined by the registered valuers is sacrosanct and considering any other valuation to determine the monies to be paid to the dissenting FCs will cause chaos and confusion. It is further submitted that the task of determining the liquidation value of the assets of the CD is entrusted to a professional as per Regulation 2(k), 27 and 35 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and only such valuation can be used for payment of monies to dissenting FCs.
(ii) In the present case, the Plan not only ignores the valuation as arrived at by the registered valuers but also proceeds to assume the value of UBP project as ‘Nil’ based on an assumption that there are no unsold units in the said project which is contrary to the data provided in the Information Memorandum.
(iii) It is submitted that the Hon’ble NCLAT in the order dated 11.04.2023 has also observed that the RP/ SRAs cannot change the liquidation value as arrived at by the valuers but thereafter, chose to overlook the same based on the observations of this Tribunal on the caveats in the valuation report. c. The payment to a dissenting creditor under the Plan is contrary to the provision of Section 53 of the Code:- (i) It is settled law that a Dissenting Financial Creditor (DFC) is required to be paid as per the waterfall mechanism proposed in Section 53 of

Page 55 of 148 the Code which clearly states that the such FCs are required to be paid the liquidation value of the assets of the CD. Further the liquidation value for extra FAR of UBP Project and other project has not been offered to DFC. (ii) However, in the present case, the RP/ SRAs have themselves decided the amount payable to the dissenting FCs which is contrary to the provisions of the Code. d. There is no provision in IBC or the Regulations thereof for part revival and part liquidation of the same CD:- (i) It is submitted that of the eight projects of the CD, the present plan proposes revival of three projects and liquidation of the remaining five. It is further submitted that there is no provision in law which permits such Plan to be placed before CoC, let alone being submitted for approval by this Tribunal.
(ii) The Applicant has submitted that for a revival to be done project wise, it is necessary that the CIRP should be done on project wise basis. e. The Resolution Plan does not fulfil the ingredients necessary under Section 30 of the Code:- (i) It is submitted that under Part II of the Plan, five projects are proposed to be liquidated but the amount to be paid and the time by which it will be paid is entirely uncertain. No lender has exercised its commercial wisdom, which is the basic ingredient for approval of a Plan, as to the manner in which the said projects will be sold.

Page 56 of 148 (ii) Further, Part II of the Plan is faulty and defective for the reason that it allows certain creditors to go ahead and realize their security. This is in contravention of Section 30(2) of the Code r/w Regulation 38(1)(b) of the CIRP Regulations, 2016 which contemplates payment of the liquidation value. f. Sale of projects through a Monitoring Committee is not provided in law:- (i) Part -II of the Plan provides for appointment of a Monitoring Committee under the chairmanship of a Retired Judge who will then distribute the money in accordance with Section 53 of the Code but there is no provision in the Code which permits any committee to transfer or sell the properties of the CD. (ii) On one hand, the Plan permits the Objector to realize one of its securities which is not forming part of the Plan and at the same time, also takes away the right of the Objector to realize the security on its own and that right has been conferred to some other committee.
(iii) The Committee cannot sell or transfer the assets of the CD which is the sole prerogative of the Liquidator.
g. The Plan proposed differential treatment and payment to the same class of creditors of the CD which is impermissible: (i) The Resolution Plan in its present form permits payment of cash to a few secured creditors while others are permitted to enforce their securities, thus resulting in unequal treatment to the same class of creditors, which is violative of the Code.

Page 57 of 148 (ii) One of the secured creditors, i.e. Dewan Housing Finance Limited (DHFL) is proposed to be paid proportionately a higher percentage of its admitted dues other than the Applicant/Objector.
(iii) Further, unsecured creditors of the CD such as Sunflame Enterprises Ltd and Ms. Nisha Singh are being treated as superior to the secured creditors such as the Applicant/Objector. (iv) A Resolution Plan can provide for different treatment to different creditors but it is not permissible to have similarly placed creditors to be treated differently.
h. The Plan for UBP Project proposes higher payment to unsecured creditors as compared to secured FCs:- (i) The Plan proposes payment of Rs. 1.90 Crores to unsecured OC against their dues of Rs. 18.98 Crores (10% of the dues) whereas the Objectors are getting only Rs. 3 Crores against their dues of Rs. 51.28 Crores (5.85% of the dues) and that the entire UBP is mortgaged to them. (ii) The Plan proposes payment of Rs. 1.50 Crores to DTCP, Haryana considering them at par with allottees in respect of units held by them, which classifies them as much above the secured FCs. (iii) The Resolution Plan does not provide a collective treatment of the three projects but separate project wise treatment. The Plan proposed payments to unsecured FCs before the payments are made to DTCP,

Page 58 of 148 Haryana and thus, the said proposal is non-compliant of Section 30(2)(b) of the Code r/w Regulation 38 of the CIRP Regulations. i. The Resolution Plan proposes one unsecured creditor viz. Sunflame Enterprises Pvt. Ltd. to be entitled to retain its Units proposed under a BBA, which is giving special treatment over others in the same class. (i) Unsecured creditors such as Sunflame and Nisha Singh are getting priority treatment. The aforesaid Sunflame has been classified as a homebuyer though it is actually an investor who has invested funds with the Certificate Debtor. The BBA’s under which it claims to be a homebuyer clearly stipulate that the Units under such scheme are subject to the mortgage of the Objectors. However, nothing has been provided in the Plan to that effect. j. The Plan proposes sale of the assets of the guarantors which is not permissible in law:- (i) The guarantors assets cannot form part of the Resolution Plan as held by the Hon’ble NCLAT in Nitin Chandrakant Naik & Anr. vs. Sanidhya Industries LLP & Ors. [Company Appeal (AT) (Ins) 257 of 2020]. (ii) The Plan included creditors of the CD such as Axis Bank Ltd., HDB Financial Services Ltd. and IndusInd Bank Ltd., who were secured by mortgage of the properties of the guarantors, as secured creditors of the CD.

Page 59 of 148 k. The Plan proposed that monies received under the Avoidance Applications filed by the RP would be to the benefit of the SRAs, which is not permissible in law:- (i) The proposal in the Plan for providing the monies received under Avoidance Applications for the benefit of SRA is against all settled law which lays down that such monies are to be distributed among FCs. (ii) Though, it is understood that this Tribunal has called upon the SRA to file an affidavit amending this clause, it is submitted that the Tribunal cannot alter/change any clause in the Plan and that if the Plan is not in compliance of the provision, it is required to rejected.
(iii) It is further submitted that if any Plan is inconsistent with law, it is required to be sent back to the CoC as has been held by Hon’ble Supreme Court in the matter of Jaypee Kensington Boulevard Apartments Welfare Association & Ors. vs. NBCC (I) Ltd. & Ors. [(2022) 1 SCC 401]. The Applicant/Objector relied upon Para 216 of the aforementioned judgment which reads thus:- “216. For what has been discussed and held on the relevant points for determination, our findings and conclusions are as follows:
A. The Adjudicating Authority has limited jurisdiction in the matter of approval of a resolution plan, which is well defined and circumscribed by Sections 30(2) and 31 of the Code. In the adjudicatory process concerning a resolution plan under IBC, there is no scope for interference with the commercial aspects of the decision of the CoC; and there is no scope for substituting any commercial term of the resolution plan approved by Committee of

Page 60 of 148 Creditors. If, within its limited jurisdiction, the Adjudicating Authority finds any shortcoming in the resolution plan vis-à-vis the specified parameters, it would only send the resolution plan back to the Committee of Creditors, for re-submission after satisfying the parameters delineated by the Code and exposited by this Court.”

l. The Plan, though acknowledges that the land on which the UBP Project is built is owned by Blaze Promoters Pvt. Ltd., which is an associate company of the CD, but it does not factor the 20% developed area of the UBP that belongs to the Blaze Promoters Pvt. Ltd in the Plan or the amount of Rs. 40 Crores to be paid to Blaze anywhere in the Plan. m. The Plan proposed that all future FAR will belong to the liquidation estate and ignores the fact that the owner of the land is Blaze and without its consent, the FAR cannot be applied and allotted and also charged to the DFCs. n. The Plan ignores the fact that the entire unsold area of 1,00,387.13 sq. ft. on the date of mortgage i.e. 09.08.2012 is mortgaged in favor of KMPL and thereafter since 01.07.2016 in favor of KMBL on a pari passu basis, and that neither KMPL nor KMBL have given any NOC for the sale of any units after 09.08.2012 and that sale of any such unit is illegal and subject to mortgage of the Objectors. o. On one hand, the RP and SRAs have claimed that units of the UBP project are oversold and hence CD has no assets, whereas on the other hand, the SRAs have submitted a Plan for revival of three projects. It is submitted

Page 61 of 148 that on the question of whether a Plan can be submitted for a Project/ CD which has no assets, the reply has to be an emphatic NO. p. The Plan proposes that there will be a forensic audit done after the approval of the Plan to determine the persons who are entitled to units and whose claim will be rejected, whereas the same should have been done before the Plan was submitted. This amounts to putting the cart before the horse.
q. The Plan nowhere mentions as to what are the source of funds for completing the three projects other than the amounts payable by the unitholder themselves and such a plan cannot be entertained. r. The Plan stipulates that the SRAs will not be in a position to demarcate the units in favor of Unit Holders in whose name conveyance deeds have been executed by erstwhile management of Universal Buildwell Pvt. Ltd., thus rendering such unit holders helpless. If the SRAs are taking over the project, it is their duty to get the units demarcated with the assistance of the authorities.
29. As far as the objection regarding distribution is concerned, it is stare decisis that the same is the issue covered by commercial wisdom of CoC and it is not open for this Tribunal to interfere with the decision taken by the CoC in exercise of its commercial wisdom. Further as far as the issue of violation of provisions of Section 53 of IBC, 2016 is concerned, no factual position is espoused before us to establish such violation. Rather at the end of prolix

Page 62 of 148 hearing, Mr. Bhatt, Ld. Counsel for the Applicant in the IA categorically submitted that the Applicant had no objection to the Resolution Plan, as on sale of certain assets of CD it was going to receive the sale proceeds as per the plan. Regarding the issue of compliances, we may refer to Section 31(4)(b) of IBC, 2016, it is for the Resolution Applicant to obtain the necessary approval required under any law for the time being in force within a period of one year from the date of approval of the resolution plan by the Adjudicating Authority. The Section 31(4) reads thus: -
“31. Approval of resolution plan.— [...] (4) The resolution applicant shall, pursuant to the resolution plan approved under sub-section (1), obtain the necessary approval required under any law for the time being in force within a period of one year from the date of approval of the resolution plan by the Adjudicating Authority under sub- section (1) or within such period as provided for in such law, whichever is later:
Provided that where the resolution plan contains a provision for combination, as referred to in section 5 of the Competition Act, 2002 (12 of 2003), the resolution applicant shall obtain the approval of the Competition Commission of India under that Act prior to the approval of such resolution plan by the committee of creditors.” 30. Additionally, qua the objections raised vide aforesaid I.A. No. 3099/2023, it is relevant to refer to the order dated 11.06.2021 passed by this Tribunal wherein it was specifically noted that no further objection/ issue would be entertained with respect to the resolution plan. It is also pertinent to note that

Page 63 of 148 the Applicants herein had preferred an appeal against the order dated 11.06.2021 before the Hon’ble NCLAT wherein the Hon’ble Appellate Tribunal had only directed that the direction contained in paragraph 50 of the order dated 11.06.2021 passed by this court be deleted. Since, there was no further modification of the order dated 11.06.2021, we do not deem it fit to entertain objections raised after the approval of the resolution plan by the CoC.
31. Such is also the contention raised in reply to the IA- 3099/2023. Relevant excerpt of the written submission dated 14.09.2024 filed by the RP in the aforementioned IA reads thus: -
“4. Further, vide detailed Order dated 11.06.2021 this Hon’ble Adjudicating Authority considered the Resolution Plan as submitted by the Applicant herein and dismissed various objections made to the Resolution Plan including the objections made by various homebuyers, Kotak Mahindra Bank Ltd., Kotak Mahindra Prime Ltd. and Dewan Housing Finance Corporation ltd. (‘DHFL’). At this time the Hon’ble Adjudicating Authority remitted the matter partly accepting one objection of Kotak Mahindra Bank Ltd., Kotak Mahindra Prime Ltd. and Dewan Housing Finance Corporation ltd. (‘DHFL’) and directed to:
(i) Provide for timeline for payment to Kotak Mahindra Bank Ltd., Kotak Mahindra Prime Ltd. and Dewan Housing Finance Corporation ltd. (‘DHFL’) as dissenting creditors since no specific timeline was provided in the Resolution Plan.
(ii) CoC to consider whether to re-evaluate the liquidation value of the Corporate Debtor.
5. Order dated 11.06.2021 has attained finality as it was challenged by Kotak Mahindra Bank Ltd. and Kotak Mahindra Prime Ltd. before the

Page 64 of 148 Hon’ble Appellate Tribunal and the same was upheld vide Order dated 11.04.2023. The Hon’ble Appellate Tribunal further clarified that there was no requirement to reconsider the liquidation value of the Corporate Debtor. Further, the appeal filed by Kotak Mahindra Bank against Order of the Hon’ble NCLAT dated 11.04.2023 was dismissed by the Hon’ble Supreme Court vide Order dated 26.05.2023.” Ergo, issues raised by the Applicant Bank/ Objector in IA- 3099/2023 cannot be entertained in view of the order dated 11.06.2021 passed by this Tribunal, order dated 11.04.2023 passed by the Hon’ble NCLAT and order dated 26.05.2023 passed by the Hon’ble Supreme Court, nonetheless, in order to correctly appreciate the law with respect to the contention of the Applicant that part resolution and part liquidation of a Corporate Debtor is impermissible under law, it is relevant to refer to Regulation 36B(6A) of CIRP Regulations, 2016 which provides that when an RP does not receive a resolution plan in response to RFRP, he may, with the approval of the CoC, issue request for resolution plan for sale of one or more of assets of the CD. The said regulation reads thus: -
“36B. Request for resolution plans. [...] (6A) If the resolution professional, does not receive a resolution plan in response to the request under this regulation, he may, with the approval of the committee, issue request for resolution plan for sale of one or more of assets of the corporate debtor. ” Further, under Regulation 37 of CIRP Regulations, 2016, a resolution plan may provide measures for resolution of the CD for maximization of value of its assets. Clause (m) of the said regulation further provides for sale of

Page 65 of 148 one more assets of the CD to one or more SRAs and manner of dealing with remaining assets. The said regulation reads thus: -
“37. Resolution Plan. [...] (m) sale of one or more assets of corporate debtor to one or more successful resolution applicants submitting resolution plans for such assets; and manner of dealing with remaining assets.”
Thus, the law itself provides that the RP may himself seek a resolution plan with respect to part of the assets of the CD. Further, the SRAs may also submit a resolution plan for one or more assets of the CD and the manner of dealing with remaining assets of the CD. Therefore, the contention of the Applicant Bank that part resolution and part liquidation of a CD is impermissible under law is legally untenable. The Resolution Plan takes care of the interest of the Applicant in the IA. In the wake, I.A. 3099/ 2023 stands dismissed

Objection filed in IA-2959/2024: 32. The captioned IA has been filed by Shyam Kishan Sharaf and Banwari Lal Saraf (hereinafter, “Applicant No. 1 and Applicant No. 2” respectively). The contentions raised in the IA are summarized hereinbelow:- (i) Applicant No. 1 had given a loan of Rs. 1.50 crores to CD on interest in May 2014 on the basis of Board Resolution dated 26.05.2014 and the Loan Agreement dated 27.05.2014. In terms of the Loan Agreement, PDC No. 053512 dated 27.05.2015 was issued for repayment of Loan of Rs. 1.50 crores and 12 monthly cheques were issued for payment of interest.

Page 66 of 148 Further, the CD executed documents such as BBA, MoU etc. for creation of collateral security of Unit No. 414 measuring super area of 3000 sq. ft. at 4th Floor of Universal Business Park, Sector 66, Gurgaon.
(ii) Similarly, Applicant No. 2 gave a loan of Rs. 1.50 crores to CD on interest in July 2014 on the basis of Board Resolution dated 09.07.2014 and Loan Agreement dated 11.07.2014. In terms of Loan Agreement, PDC 000488 dated 11.07.2015 was issued for repayment of Loan of Rs. 1.50 crores and 12 monthly cheques were issued for payment of interest. Further, the CD executed documents such as SBA, MoU etc. for creation of collateral security of Unit No. 233 measuring super area 2725 sq. ft. on 2nd Floor of Universal Trade Tower, Sector 49, Gurgaon.
(iii) The cheques given to both the Applicants for repayment of the aforementioned loan amount bounced and consequently, complaint case u/s 138 NI Act was initiated against the CD and its Ex-Directors in the year 2015.
(iv) CIRP was initiated against the CD on 03.07.2018 and both the Applicants filed claims in Form C with RP on 29.07.2018 under Regulation 8 of CIRP Regulations, 2016 read with Section 5(8)(a) of IBC, 2016. However, the RP advised the Applicants to file their claims in Form CA and stated that he shall admit the claim of the Applicants only on filing of Form CA instead of Form C.
(v) The RP did not consider/admitted the claim of the Applicants merely due to non-filing of Form CA. Thus, RP did not place the claim of the Applicants

Page 67 of 148 in Information Memorandum and resultantly, the SRA also did not consider the claim of the Applicants and Resolution Plan sought to be approved also does not include the claims of the Applicants. (vi) In terms of law laid down by Hon’ble Supreme Court in GNIDA vs. Prabhjit Singh Soni & Anr. (Civil Appeal Nos. 7590-7591 of 2023), it is clear from reading of Para 54 of the judgment that the Form (viz. Form C, Form CA, Form B) in which a claim is to be submitted under the CIRP Regulations, 2016 is directory and not mandatory, and thus RP cannot refuse to admit a claim merely on the basis of the incorrectness of the form selected by the claimants if otherwise documents/proof supporting the claim have been duly filed by the Claimants. Thus, as per Prabhjit Singh Soni judgment, the Resolution Plan sought to be approved vide IA-5003/2021 fails not only in acknowledging the claim made by the Applicants, but also in mentioning the correct figure of the amount due and payable. This omission or error has materially affected the resolution plan and the same stands vitiated. (vii) The Resolution Plan has not placed the Applicants in any category of creditors which has gravely affected the interests of the Applicants adversely. This Tribunal from time and again gave directions to the RP through various orders dated 30.04.2019, 13.05.2019 and 27.05.2019 in respect of various units of two (2) projects namely Universal Business Park and Universal Trade Tower and had also directed the RP to identify all the claimants and divide them into 2 categories, namely allottees and Financial Creditor. However, to the limited knowledge of the Applicants,

Page 68 of 148 the Ld. RP has miserably failed to obey the directions of this Tribunal which is evident from the fact that RP did not mention the name of the Applicant 1 and Applicant 2 in the list prepared by him for UBP and UTT despite the claimants having duly filed their claim on 29.07.2018 i.e. within 26 days from ICD whereas names of even Ex Directors are appearing who may not have even filed their claims with RP. (viii) The Resolution Plan for Universal Business Park conceives utilization of land owned by Blaze Promoters Pvt. Ltd. and further on utilization of units of 43 Conveyance Deed holders in Universal Business Park which as per the Apex Court Judgment in the case of Suraj Lamps and Embassy Property is illegal and hence, not feasible. (ix) Through the Resolution Plan sought to be approved vide IA-5003/2021, the RP is trying to play fraud on this Tribunal by contravening the law laid down by Hon'ble Supreme Court in M/s Embassy Property Developments Pvt. Ltd. vs. State of Karnataka & Ors. by annulling the Conveyance Deeds of 43 Conveyance Deed holders. Moreover, Conveyance Deeds registered with Sub-Registrar Office are regulated under Transfer of Property Act, 1882 and the Registration Act, 1908 and that through IA- 5003/2021, the RP is trying to bypass the aforementioned laws and pass a resolution plan behind the back of 43 Conveyance Deed holders and the two Applicants herein.

Page 69 of 148 (x) The Applicants were never served noting of the meeting of the CoC and that the entire proceedings up to the stage of approval of resolution plan have been ex-parte to the Applicants. (xi) The Applicants had submitted their claim in Form C on 29.07.2018 i.e. within 26 days from Insolvency Commencement Date i.e. 03.07.2018 and had been held as secured creditor by MM Court u/s 138 NI Act after recording of evidences, cross examination etc. Yet, the Resolution Plan in IA-5003/ 2021 projects the Applicants as the ones who did not submit their claim. (xii) Though the issue whether the Applicants are Financial Creditors u/s 5(8)(a) or Allottee u/s 5(8)(f) of IBC, 2016 is pending before this Tribunal, interest of justice demands that the collateral securities for the loan given by the Applicants i.e. Unit No. 414 in Universal Business Park, Sector 66, Gurgaon and Unit No. 233 in Universal Trade Tower, Sector 49, Gurgaon should be kept under the control and custody of RP to the exclusion of all other Creditors/Claimants of the CD. (xiii) The RP has wrongly certified by filing Form H that the Resolution Plan complies with Section 30(2) of IBC,2016 whereas in fact, it is in gross violation of the provisions of Section 30(2). Therefore, the RP could not have presented a Resolution Plan which is non-compliant of the Code, firstly before CoC and thereafter, before this Tribunal. (xiv) The SRA in guise of approval of the Resolution Plan is illegally trying to interfere with the contractual rights of the Applicants and trying to take

Page 70 of 148 over the powers of RP such as appointing Forensic Auditor and validation of claims of various claimants/ stakeholders of CD, and giving preference to one allottee over another which is against Article 14 of Constitution of India. The Applicants relied upon judgment of Hon’ble Supreme Court in the matter of TATA Consultancy Services Ltd. vs. Vishal Ghisulal Jain RP SK Wheels Pvt. Ltd. (Civil Appeal No. 3045 of 2020), wherein it was held that both NCLT and NCLAT cannot interfere with the Contractual rights of the parties which arise dehors the IBC, 2016. The relief sought in the IA reads thus:
A. Direct the RP to keep “Unit No. 414 measuring super Area of 3000 sq. ft at 4th floor of Universal Business Park, Sector 66, Gurgaon” of Applicant No. 1 exclusively for the Applicant No. 1 and “Unit No. 233 measuring super Area of 2725 sq. ft at 2nd floor of Universal Trade Tower, Sector 49, Gurgaon” of Applicant No. 2 exclusively for the Applicant No. 2 (to the exclusion of all other creditors/allottees of Corporate Debtor) in view of binding Hon’ble Supreme Court judgment dated 12.02.2024 in the matter of GNIDA vs. Prabhjit Singh Soni & Anr. (Civil Appeal Nos. 7590-7591 of 2023) and accordingly direct RP to make necessary changes in Information Memorandum & in IA-5003/2021 filed by the RP for approval of Resolution Plan. B. Direct the RP to take control and custody of “Unit No. 233 measuring super Area of 2725 sq. ft at 2nd floor of Universal Trade Tower, Sector 49, Gurgaon” of Applicant No. 2 (which as per the limited knowledge

Page 71 of 148 of the Applicants & submissions hereinabove is in illegal possession) in view of judgment in Civil Appeal Nos. 7590-7591 of 2023 and further in view of duties of RP under Section 25 of IBC, 2016 and as per directions of this Tribunal vide order dated 09.02.2023 in CA- 500/2019.

32. As far the aforementioned IA-2959/2024 is concerned, the claim of the Applicants could be dealt with while examining CAs-1500/2019 and 1501/2019. The order passed in the CAs are under challenge before Hon’ble NCLAT. The issue raised in the IA was raised by the Applicants also on 12.06.2024. Having heard the Applicant No.1, this Tribunal passed the necessary order. The order was challenged before Hon’ble NCLAT in Company Appeal (AT)(Ins.) 1424 of 2024, in which Hon’ble NCLAT passed detailed order. The Paras 2-11 reads thus:- “2. This Appeal has been filed against the order dated 12.06.2024 by which order the Adjudicating Authority has made very strong observations against the Appellant that he has been obstructing the proceeding of the Court and the Adjudicating Authority has also passed an order expressing hope and trust that Appellant would refrain intimidating and obstructing the Court proceedings by raising such issues which are under consideration before the Appellate Tribunal. On 12.06.2024, IA No.3089 of 2021 filed by the Appellant was also listed in which application, the Appellant prayed for initiating Section 340 CrPC proceeding against the Resolution Professional on some allegations made in the application. Adjudicating Authority has noticed in the order that IA No.6063 of 2023 which was filed by the Appellant earlier was disposed of on 06.05.2024. Adjudicating Authority has made observations that why the Appellant is making submission with regard to issue which was already disposed of

Page 72 of 148 on 06.05.2024. Court also noticed that in earlier application, an order was passed on 12.09.2023 against which Appeals have been filed by the Appellant before the Appellate Tribunal which are pending consideration.
3. In this Appeal, Appellant submits that in the order dated 06.05.2024, Adjudicating Authority had made observations that Appellant could not explain the ratio of the judgment of the Hon’ble Supreme Court in “Greater Noida Industrial Development Authority vs. Prabhjit Singh Soni- (Civil Appeal Nos. 7590-7591 of 2023)” and Appellant was only trying to explain the ratio of the said judgment. It is submitted that the Appellant had not obstructed the proceeding.
4. Adjudicating Authority in the impugned order has made following observations: - “At this stage, Mr. Shyam Kishan Saraf, who is appearing in person started making submission in respect of IA-6063/2023, which was disposed in terms of order dated 06.05.2024. When he was asked as to why he is talking about the IA which could already been disposed of, he submitted that he is trying to make this Bench to understand what it could not understand while passing the order dated 06.05.2024 in IA-6063/2023. He also started narrating the facts involved in CA1500/2019 & CA- 1501/2019, disposed of in terms of the order dated 12.09.2023 which orders are admittedly under challenged before Hon'ble NCLAT in the appeals preferred by Mr. Shyam Kishan Saraf. Even about the IA- 6063/2023, Mr. Shyam Kishan Saraf submitted that might be the order dated 12.09.2023 passed by this Tribunal is under challenged before Hon'ble NCLAT, but since Hon'ble Supreme Court has passed judgment in Greater Noida Industrial Development Authority vs. Prabhjeet Singh Soni & Anr. (Civil Appeal Nos. 7590- 7591 of 2023), irrespective of pendency of the appeal before Hon'ble NCLAT, he has got a cause to ask this Tribunal to reopen its order dated 12.09.2023. We are not aware of any such law, which enable us to look into our order, even for the purpose of review, when the same is under challenged before Hon'ble Appellate Tribunal. Even otherwise also, there is no such provision, in terms of which this Tribunal can review its own order. We are forced to bring it on record that

Page 73 of 148 as and when this matter is listed for hearing, Mr. Shyam Kishan Saraf, try to obstruct the proceedings and start talking of the issues involved in CA-1501/2019 & CA-1500/2019 which have already been disposed of by this Tribunal. When with his constant obstruction, we got inclined to take appropriate step to uphold the majesty of law as also the decorum in the Court, Mr. Shyam Kishan Saraf apologised for his conduct of interrupting the Court proceedings again and again. By taking a lenient view, we refrain from taking steps/actions at this stage as is required in the present proceedings, but we record that it is primary duty of any judicial forum to uphold the majesty of law at any cost and if in future Mr. Shyam Kishan Saraf would not so due deference to law and judicial proceedings we will be constrained to take appropriate action. We are forced to record so for the reason that in terms of the order dated 15.05.2024, Hon'ble NCLAT expected this Tribunal to decide the matter as early as possible and preferably within two months from the date of appearance of the parties. The approach shown by Mr. Shyam Kishan Saraf almost on every date of hearing to obstruct the proceedings in a way also comes in the way aforementioned order passed by Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No. 1017 of 2023 & IA No. 3486, 3487, 3488 of 2023, 1709 of 2024. Even otherwise also, any attempt or adventure by any party, expecting us to pass any order in respect of case which is pending for determination before Hon'ble Appellate Court amounts to demeaning the judicial propriety and need to be dealt with strongly.”

5. Counsel for the Resolution Professional submitted that on the date 12.06.2024 only application listed was IA No.3089 of 2021 which was application under Section 340 CrPC and Court decided to defer the application and await the decision of the Appellate Tribunal since issues which are sought to be raised in Section 340 CrPC application had bearing on the decision of the Appellate Tribunal. It is submitted that the Appellant is in habit of appearing and are making long arguments by raising several issues which may not be relevant for the matters which are listed before the Court.

Page 74 of 148 6. We have considered the submissions of parties and perused the record. From the order passed by the Adjudicating Authority, it is clear that on 12.06.2024, when the order was passed only IA No.3089 of 2021 filed by the Appellant was listed in which Appellant sought prayer to initiate Section 340 CrPC proceeding against the Resolution Professional in which application no order has been passed since the Adjudicating Authority noticed that certain issues having bearing on the application are pending consideration before the Appellate Tribunal. The explanation which was sought to be submitted by the Appellant is that he wanted to explain the judgment of the Hon’ble Supreme Court in “Greater Noida Industrial Development Authority vs. Prabhjit Singh Soni” (supra) which was noticed in the order dated 06.05.2024 does not commend us. The observations made by the Adjudicating Authority in regard to judgment of the “Greater Noida Industrial Development Authority vs. Prabhjit Singh Soni” in order dated 06.05.2024 are to the following effect:- “Mr. Shyam Kishan Saraf asked us to refer to the judgment of Hon'ble Supreme Court passed in Greater Noida Industrial Development Authority vs. Prabhjit Singh Soni (Civil Appeal Nos. 7590-7591 of 2023). It is difficult for us to comprehend, when reliance is placed on the judgment of Hon'ble Supreme Court, without espousing the legal proposition, which is sought to be supported by the judgment, that in what context, the party want us to read the judgement. Nevertheless, as we understand from the judgment, the ratio decidendi of the same is that this Tribunal can recall the order of approving the plan. Nevertheless, once the applicants have challenged our order before Hon'ble NCLAT, we are unable to appreciate that how we can re-examine the same for any purpose.”

7. We do not find any occasion to explain the judgment of the Hon’ble Supreme Court when IA No.3089 of 2021 filed by the Appellant was listed on 12.06.2024. The submission which was advanced by the Appellant was wholly irrelevant for the issue which was to be considered by the Court on the said date. We find that the observations made by the Court

Page 75 of 148 are based on relevant consideration and we do not find any ground to expunge the remarks. 8. Shri Shyam Kishan Saraf has cited the judgment of the Hon’ble Supreme Court in “Neeraj Garg vs. Sarita Rani and Ors.- Civil Appeal Nos. 4555- 4559 of 2021”. He has referred to paragraphs 15 to 18 which are as follows:- “15. While it is of fundamental importance in the realm of administration of justice to allow the judges to discharge their functions freely and fearlessly and without interference by anyone, it is equally important for the judges to be exercising restraint and avoid unnecessary remarks on the conduct of the counsel which may have no bearing on the adjudication of the dispute before the Court. 16. Having perused the offending comments recorded in the High Court judgments, we feel that those could have been avoided as they were unnecessary for deciding the disputes. Moreover, they appear to be based on the personal perception of the learned Judge. It is also apparent that the learned Judge did not, before recording the adverse comments, give any opportunity to the Appellant to put forth his explanation. The remarks so recorded have cast aspersion on the professional integrity of the appellant. Such condemnation of the Counsel, without giving him an opportunity of being heard would be a negation of the principles of audi alteram partem. The requisite degree of restraint and sobriety expected in such situations is also found to be missing in the offending comments.
17. The tenor of the remarks recorded against the appellant will not only demean him amongst his professional colleagues but may also adversely impact his professional career. If the comments remain unexpunged in the court judgments, it will be a cross that the Appellant will have to bear, all his life. To allow him to suffer thus. would in our view be prejudicial and unjust. 18. In view of the forgoing, we are of the considered opinion that the offending remarks recorded by the learned judge against the appellant should not have been recorded in the manner it was done. The appellant whose professional conduct was questioned, was not provided any opportunity to explain his conduct or

Page 76 of 148 defend himself. The comments were also unnecessary for the decision of the Court. It is accordingly held that the offending remarks should be recalled to avoid any future harm to the appellant's reputation or his work as a member of the Bar. We therefore order expunction of the extracted remarks in paragraphs 4,5,6, and 7 of this judgement. The appeals are accordingly disposed of with this order.” 9. There can be no dispute to the proposition of law that the adverse comments which are unnecessary and made without opportunity can always be set aside. The present is a case where observations made by Adjudicating Authority were during course of the hearing on 12.06.2024 when the Appellant was appearing in person. At the time of deciding the application, no litigant even if he is appearing in person has freedom to make any submission which he so feels nor any litigant is entitled to waste time of the Court where large numbers of cases are pending consideration.
10. Counsel for the Resolution Professional submits that the Appellant who is appearing in person has already filed eight applications before the Adjudicating Authority and five Company Appeals arising of the same dispute.
11. We do not find any ground to interfere with the impugned order. The observations made by the Adjudicating Authority were based on sufficient reasons. What Court has observed has to be given weight and observations cannot be lightly expunged as sought to be contended by the Appellant appearing in person.” (emphasis applied) 34. Indubitably, the appeals preferred by the Applicants viz. Company Appeal (AT)(Ins.) 1411 of 2023 and Company Appeal (AT)(Ins.) 1412 of 2023 are yet to be adjudicated by Hon’ble NCLAT. The order dated 31.10.2023 passed in the appeals reads thus:-

Page 77 of 148 “31.10.2023: Appellants appear in person and submits that the Adjudicating Authority committed error in holding the Appellant as a financial creditor in a class whereas the Appellants are Financial Creditors who have filed their claims in Form C. It is further submitted that the Adjudicating Authority has also brushed aside the judgment delivered in proceedings under Section 138 of the Negotiable Instrument Act, 1881 where transaction was held to be loan and directors were convicted for offence. 2. Learned Counsel appearing for the Resolution Professional refuted the submissions and submits that the cheques numbers were mentioned in the Builder’s Buyers Agreement and there was only one consideration and the Adjudicating Authority has rightly held the Appellants as a financial creditor in a class and the order passed under Section 138 was hit by Moratorium under Section 14.
3. Issue Notice. Learned Counsel accepts notice on behalf of Resolution Professional. Let Reply be filed within three weeks. Rejoinder, if any, may be filed within two weeks thereafter.
4. List both the Appeals on 11.12.2023. We make it clear that the plan approval application which is pending consideration before the Adjudicating Authority may be proceeded and decided in accordance with law, however, that will subject to result of the Appeal.”

Needless to add, the present order considering the approval of the Plan will be subject to the result of the Appeal in I.A. Nos. 1411 of 2023 and 1412 of 2023. In the wake, IA- 2959/2024 stands disposed of. 36. On 26.05.2023, Mr. Swapnil Gupta, Ld. Counsel for the RP (Applicant in IA-5003/2021) concluded his submission before a Bench having a different combination of Members, which included one of us including [Member(J)].

Page 78 of 148 Nevertheless, as prayed by the Counsels for the parties opposing the plan, hearing was deferred to enable them to put forth their submissions to 01.06.2023. Thereafter, hearing could take place in the matter from time to time. Most of the time, when it came to consideration of IA-5003/2021, Mr. Swapnil Gupta, Ld. Counsel for the Applicant/RP mostly espoused four standard arguments to deal with all the objections (ibid) except the objections raised in IA- 295/2024. The standard arguments raised by Mr. Swapnil Gupta time and again, including on 04.09.2024 are:- (i) In terms of the order dated 11.06.2021, the only view taken by this Tribunal was that the DHFL is entitled to get the amount in terms of money and it cannot be compelled to remain attached with the CD till the Project is completed. Regarding Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited, this Tribunal viewed that they are entitled to get the payment of Rs. 3 Crores within a specified period and the period not mentioned in the Plan needed to be specified. As could be noted in Para 60 of the order dated 11.06.2021(supra), in view of the decision of Hon’ble Supreme Court in Jaypee Kensington Boulevard Apartments Welfare Association & Ors. vs. NBCC (India) Ltd. Ors. [Civil Appeal No. 3395 of 2020], the suggestion to keep any housing project already complete or near completion or not having started yet out of the purview of the Resolution Plan is a commercial wisdom of the CoC and once the CoC has approved the Resolution Plan by majority vote, no individual homebuyer or an allottee under Section 5(8) of the Code is entitled under the law to raise any issue in this regard. When regarding Business Park, this tribunal

Page 79 of 148 directed that the fate of the creditor cannot be attached to the disposal/sale of the asset of the Corporate Debtor, regarding the Project Pavillion, about which the Plan provided for realisation of security interest in the land and construction mortgaged to Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited to satisfaction of their claim admitted during insolvency proceedings after considering claims received on said project in the manner as set out in Part II of the Plan, this Tribunal did not interfere and no observation was made. When the said order passed by this Tribunal was challenged before Hon’ble NCLAT, the same was concurred to the extent of finding recorded by this Tribunal regarding the liquidation value of the Appellant. Besides, the finding arrived by this Tribunal in Para 49 of the order that the units that had already been sold were no longer the assets of the Corporate Debtor and could not be liquidated and the contentions of the Objectors that the amounts proposed to be paid to DHFL, Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited is contrary to provisions of Section 30(2)(b) r/w Section 53(1) of the Code were without force, was not interfered by Hon’ble NCLAT while passing the order dated 11.04.2023 in Company Appeal (AT)(Ins.) 661 of 2021. The observation made by this Tribunal regarding consideration of the valuation by CoC again was ordered to be deleted by Hon’ble NCLAT.
(ii) In view of the aforementioned orders passed by this tribunal and by Hon’ble NCLAT, the required modification in the Resolution Plan has been made and at this stage, it is not open to this tribunal to examine any issue

Page 80 of 148 other than those which could be flagged by this Tribunal in order dated 11.06.2021 and by Hon’ble NCLAT in order dated 11.04.2023. (iii) Regarding the claim of homebuyers, since the SRA itself is a consortium of Resident Welfare Association, a provision has been made in the Plan that they can stake their claim before SRA and the SRA would examine the same with reference to the books of accounts and record of the Corporate Debtor. (iv) As far as the contention raised by the Ld. Counsel for Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited regarding their claim being attached to speculations in the process of implementation of Resolution Plan is concerned, as can be seen from the revised Plan, the provision as contained in the Plan which could be remitted back to CoC i.e. it would be open to them to appropriate the security mortgage with them to recover their dues.

We heard the counsels for the parties and perused the record. As can be seen from the order dated 11.06.2021 passed by this Tribunal, the contention raised by the Ld. Counsel for the Objectors that the amount proposed to be paid to DHFL, Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited are contrary to the provisions of Section 30(2)(b) of the Code read with Section 53(1) thereof could be rejected. At the cost of repetition, para 49 of the judgment is reproduced below:
“49. Now, in the light of position of law settled by the Hon'ble Supreme Court (Supra), we consider the contention of Mr. Sumant Batra, Advocate and we notice that the amount proposed to be paid in the Resolution Plan is

Page 81 of 148 approved by the CoC. Under Section 30(2)(b) of IBC read with Section 53 of IBC, 2016, it is the duty of the Resolution Professional to examine the Resolution Plan, whether the distribution to the Creditors is made in terms of the provisions of law and Regulations, thereafter the Resolution Professional shall place the same before the Committee of the Creditors u/s 30(3) IBC 2016 for its approval. The COC after considering the feasibility and viability, the manner of distribution proposed, may approve the Plan by not less than 66% of voting share u/s 30(4) of the IBC 2016. It is the commercial wisdom of the CoC to determine what amounts are to be paid to different classes and sub classes of creditors in accordance with the provisions of the Code and the Regulations made thereunder. It is seen that while deciding the amounts in the instant case, the CoC has considered the liquidation value placed by the Resolution Professional as well as the Resolution Applicant as mentioned in aforementioned paragraphs. Since the units, that have already been sold, are no longer an asset of the Corporate Debtor and consequently cannot be liquidated, their liquidation value has been provided as NIL. The COC after considering the same, approved the amounts proposed to be paid to Kotak Mahindra Bank Limited, Kotak Mahindra Prime Limited and similarly, to DHFL. Hence, we find, No force in the contention raised by the Ld. Council for the Objectors That the amounts which are proposed to be paid to the DHFL, Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited are contrary to the provision of Section 30(2)(b) of the IBC read with Section 53(1) of the IBC, 2016.”

Apparently, when the appeal preferred against said order was dismissed, the aforementioned view taken by this Tribunal was specifically and fully concurred by Hon’ble NCLAT. Para 29 of the order dated 11.04.2023 passed by Hon’ble NCLAT in Company Appeal (AT)(Ins.) No. 661/2021 reads thus:- “29. We have also noticed the caveats given by the Valuers in their Report. The valuation of the different projects including project Universal Business Park was with the caveats as noted above. The Valuers did not

Page 82 of 148 enter into issue of encumbrance over the assets. The finding has been recorded by the Adjudicating Authority in paragraph 49 that since the units have already been sold, are no longer the asset of the Corporate Debtor, hence, the liquidation value of the Universal Business Park project is NIL. The Adjudicating Authority has rightly come to the above conclusion after considering the facts and circumstances of the present case. We fully concur with the observations made by the Adjudicating Authority in paragraph 49.”

(Emphasis Supplied)

In Para 50 of order dated 11.06.2021 passed by this Tribunal, it could be viewed that there being differences between the liquidation value submitted by the two valuers and the valuation assessed by the Resolution Professional and Resolution Applicant, the CoC might consider taking steps for suitable correction of the liquidation value of all the projects and ask Resolution Applicant to account for the same in the Resolution Plan. At the cost of repetition, Para 50 of the order is reproduced thus:- “50. However, we notice there is significant differences between the liquidation value submitted by the Two Valuers and valuation assessed by the Resolution Professional and Resolution Applicant, therefore, we think it proper, to leave the matter upon the COC to reexamine this issue and if the properties/infrastructure in the projects of the corporate debtor is available for sale/disposal, the COC may consider taking steps for suitable correction of the Liquidation value of all the projects and subsequently, ask the Resolution Applicant to account for the same in the Resolution Plan.”

However, Hon’ble NCLAT while considering the appeal preferred from aforementioned order deleted the observation made by this Tribunal regarding reconsideration of valuation (ibid). The Para 31 of the order passed in the appeal

Page 83 of 148 (relevant excerpt of which has already been reproduced hereinabove) reads thus:- “31. In view of the foregoing discussions, we are of the view that observations and directions in paragraph 49 needs to be affirmed, whereas directions issued in paragraph 50, deserves to be deleted. We are further of the view that relief (b) and other reliefs claimed in the Appeal by the Appellants cannot be granted.”
(Emphasis Supplied)

In any case, since the appeal preferred before Hon’ble NCLAT from order dated 11.06.2021 was rejected, the conclusion arrived at by this Tribunal in Para 68 of the order reproduced at Page 10 above would hold good. In terms of the conclusion recorded in said Para of the order, the Financial Creditors may not be compelled to remain attached with Corporate Debtor till the project is completed. The said part of the direction has been complied with by the RP/CoC and the original Resolution Plan has been changed to the following extent as per the Addendum filed which reads thus:-

One major objection is that the interests of Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited cannot be kept attached to implementation of Plan and they need to be paid the admitted amount of their claim in terms of money. Regarding the Universal Pavillion Project, the Plan provided that the said creditors may be allowed to realise their security interest in the land and

Page 84 of 148 construction mortgaged to them in the Universal Pavillion Project in satisfaction of their claim admitted during Insolvency Proceedings. The provision made in this regard was noted in Para 37 of order dated 11.06.2021 passed by this tribunal. 43. When the provision made regarding payment of Rs. 3 Crores to Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited from Universal Business Park was specifically noted in Clause b of Para 68 of the order passed by this Tribunal and interfered, the provision made in the Plan regarding realisation of security interest in Universal Pavillion Project by Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited was not interfered by this Tribunal. The relevant excerpt of the Para 37 of the order i.e. reproduction of resolution plan reads thus:-

Apparently, the order dated 11.06.2021 has been upheld by Hon’ble NCLAT, thus at this stage, it is not open for us to go behind the said order to reopen the issue. Even otherwise, when the security interest in the Universal Pavillion Project is left to be realised by the Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited. Thus, it is not so that the claim of the said Financial Creditors is attached to completion of project. These Financial

Page 85 of 148 Creditors may dispose of the land and construction in the Project mortgaged to them and may realise the money. The provision regarding same could be found in the Resolution Plan which reads thus:-

On 31.07.2024 the Ld. Counsels appearing for RP and Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited submitted that the SRA and the Bank had entered into an understanding that in terms of the provision contained in the Plan approved by CoC, the RP and the Banks would find some buyers and would dispose of the property which in terms of the Resolution Plan has already been kept at the disposal of the Banks, subject to certain riders. The order dated 31.07.2024 and the relevant excerpt from the Resolution Plan reads thus:-

Page 86 of 148 “IA-3099/2023, IA-5003/2021, IA-3089/2021: Mr. Swapnil Gupta, Ld. Counsel appearing for the RP, and Mr. Bhatt, Ld. Counsel appearing for the Kotak Mahindra Bank, and Kotak Mahindra Prime submitted that the RP, SRA and the Banks have entered into understanding that in terms of the provisions contained in the plan, which has already been approved by the CoC, the RP and the Banks would find some Buyers and would dispose of the property, which in terms of the Resolution Plan has already been kept at the disposal of the Banks subject to certain riders. According to them, they are already in process of filing appropriate application before this Tribunal and it would be proper if the application for Resolution of Plan is taken up along with the said applications.”

In view of the aforementioned, particularly the order dated 11.06.2021 passed by this Tribunal and upheld by Hon’ble NCLAT, we are not in a position to countenance the objection regarding the provision being made in the Plan

Page 87 of 148 providing for realisation of security interest in the Project Pavillion by the Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited. Another reason not to accept the objection is that the CoC approved the Plan as mix arrangement of resolution insolvency of the CD as also liquidation of a part of its assets. The issue was also dealt with in order dated 11.06.2021. The Para 34 and 43 of the order in which the factual position to the effect was recorded reads thus:-
“34. Before making any comments on these submissions, we would like to refer the Resolution Plan submitted by the Resolution Professional. On perusal of the Resolution Plan, we notice that it is an admitted fact that the Resolution Plan has been divided in two parts i.e. Part-I and Part II. The part-I deals with three projects namely, Universal Green, Universal Aura and Universal Business Park, in which partial construction work has been undertaken. These projects are shown as the "going concern" under the Resolution Plan. Whereas in the Part-II of the Resolution Plan deals with four projects, namely Universal Square, Universal Prime, the Market Square, the Pavillion, in which no construction/development work has commenced and most of the inventory is unsold, and therefore, a proposal is given for their liquidation. It has been suggested to constitute a Monitoring Committee appointed by the National Company Law Tribunal (NCLT) under the Chairmanship of a retired judge to liquidate these four projects and distribute their proceeds amongst creditors of these four Projects on a pro rata basis in accordance with the provisions of Section 53 of IBC including proceeds from recovery made on account preferential/undervalued transactions. 43. We further notice that in course of their arguments, the objectors have also raised a question that only the part of the properties of the Corporate Debtor are covered with the Resolution Plan whereas the remaining properties of the Corporate Debtor i.e. the properties shown in

Page 88 of 148 part-II of the Resolution Plan are not covered with the Resolution Plan, which has left these properties without giving a specific proposal in the plan.”

Nevertheless, having taken the view that the issue is covered by the aspect of commercial wisdom of CoC and is beyond the purview of Section 30(2) of the Code, this Tribunal refused to accept the objection noted in Para 34 and 43 of the order. The Paras 46-48 of the order dated 11.06.2021 in terms of which the objection regarding the Resolution Plan being not in terms of the spirit of the object of procedure for resolution insolvency could not be countenanced reads thus:- “46. While going through the decision of the Hon'ble Supreme Court in Jaypee Case (Supra), we notice that the power of the Adjudicating Authority to consider approval of the Resolution Plan has also been discussed in that case. Therefore, we would like to refer the relevant paragraphs of the decision, which are quoted below: -
“77. In the scheme of IBC, where approval of resolution plan is exclusively in the domain of the commercial wisdom of CoC, the scope of judicial review is correspondingly circumscribed by the provisions contained in Section 31 as regards approval of the Adjudicating Authority and in Section 32 read with Section 61 as regards the scope of appeal against the order of approval.
77.1. Such limitations on judicial review have been duly underscored by this Court in the decisions above- referred, where it has been laid down in explicit terms that the powers of the Adjudicating Authority dealing with the resolution plan do not extend to examine the correctness or otherwise of the commercial wisdom exercised by the CoC. The limited judicial review available to Adjudicating Authority lies within the four corners of Section 30 (2) of the Code, which would essentially be to examine that the

Page 89 of 148 resolution plan does not contravene any of the provisions of law for the time being in force, it conforms to such other requirements as may be specified by the Board, and it provides for: (a) payment of insolvency resolution process costs in priority; (b) payment of debts of operational creditors; (c) payment of debts of dissenting financial creditors; (d) for management of affairs of corporate debtor after approval of the resolution plan; and (e) implementation and supervision of the resolution plan.
77.2. The limitations on the scope of judicial review are reinforced by the limited ground provided for an appeal against an order approving a resolution plan, namely, if the plan is in contravention of the provisions of any law for the time being in force; or there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resolution period; or the debts owed to the operational creditors have not been provided for; or the insolvency resolution process costs have not been provided for repayment in priority; or the resolution plan does not comply with any other criteria specified by the Board.
77.3. The material propositions laid down in Essar Steel (supra) on the extent of judicial review are that the Adjudicating Authority would see if CoC has taken into account the fact that the corporate debtor needs to keep going as a going concern during the insolvency resolution process; that it needs to maximise the value of its assets; and that the interests of all stakeholders including operational creditors have been taken care of. And, if the Adjudicating Authority would find on a given set of facts that the requisite parameters have not been kept in view, it may send the resolution plan back to the Committee of Creditors for re-submission after satisfying the parameters. Then, as observed in Maharashtra Seamless Ltd. (supra), there is no scope for the Adjudicating Authority or the Appellate Authority to proceed on any equitable perception or to assess the resolution plan on the basis of quantitative analysis. Thus, the treatment of any debt or asset is essentially required to be left to the collective commercial wisdom of the financial creditors.”

Page 90 of 148

47. In the light of the decision referred above, when we consider the case in hand and the submissions made on behalf of the objectors, we are of the considered view that there is a limited scope of judicial review available to the Adjudicating Authority within the four corners of Section 30(2) of the Code, beyond which the Adjudicating Authority can not go.

48. As per Section 30(2) of the Code, only the following five conditions are required to be examined as held by the Hon'ble Supreme Court in Jaypee Case (Supra):
    α. Payment of insolvency resolution process costs inpriority
    b. Payment of debts of operational creditors
    c. Payment of debts of dissenting financial creditors
    d. Management of affairs of corporate debtor after approval of the resolution plan and
    e. Implementation and supervision of the resolution plan.”

Also on the issue of distribution, in order dated 11.06.2021, this Tribunal refused to interfere with the view that the same is the aspect that needs to be looked into by CoC in its commercial wisdom. Para 49 of the order has already been reproduced hereinabove.

Though in terms of the provisions of the IBC, 2016 r/w IBBI (CIRP) Regulations, 2016 it is for IRP/RP to collate and examine the claims of the stakeholders and in the present case it is left to SRA to do so during the course of implementation of Resolution Plan, but the issue could not be considered as a ground to interfere with the Resolution Plan in the earlier round of litigation. In the present case, while passing the order appointing the Court Commissioner

Page 91 of 148 we sufficiently commented upon the issue. The Paras 22-27 of the order dated 01.11.2023 reads thus:- “22. It is quite surprising that despite the provisions contained in Section 17 of IBC, 2016 (ibid), which provided for recourse to all kinds of resources at the end of IRP, how the IRP could not verify and collate the claims of the genuine and bona fide stakeholders in a credible manner and how without verifying and authenticating the claims of the Creditors/Stakeholders, the Expression of Interest (EOI) could be invited and at the strength of what provision of law it could be left to SRA to verify the claims after Forensic Audit.

23. As can be seen from Section 18 of the IBC, 2016, the Interim Resolution Professional is required to perform the duties, namely: - “(a) collect all information relating to the assets, finances and operations of the corporate debtor for determining the financial position of the corporate debtor, including information relating to (i) Business operations for the previous two years;
    (ii) Financial and operational payments for the previous two years;
    (iii) List of assets and liabilities as on the initiation date; and
    (iv) Such other mattes as may be specified;
    (b) receive and collate all the claims submitted by creditors to him, pursuant to the public announcement made under sections 13 and 15;
    (c) constitute a committee of creditors;
    (d) monitor the assets of the corporate debtor and manage its operations until a resolution professional is appointed by the committee of creditors;
    (e) file information collected with the information utility, if necessary; and

Page 92 of 148 (f) take control and custody of any asset over which the corporate debtor has ownership rights as recorded in the balance sheet of the corporate debtor, or with information utility or the depository of securities or any other registry that records the ownership of assets including- (i) assets over which the corporate debtor has ownership rights which may be located in a foreign country;
(ii) assets that may or may not be in possession of the corporate debtor;
(iii) tangible assets, whether movable or immovable;
(iv) Intangible assets including intellectual property;
(v) Securities including shares held in any subsidiary of the corporate debtor, financial instruments, insurance policies; (vi) Assets subject to the determination of ownership by a court or authority; (g) to perform such other duties as may be specified by the Board.”

24. As can be seen from the aforementioned (Section 18(a)(iii) and (b) of IBC, 2016), it was the duty of the IRP to collect all information relating to assets, finances, and operations of the Corporate Debtor for determining its financial position, including information relating to list of assets and liabilities of the Corporate Debtor and to receive and collate all the claims submitted by the creditors to him pursuant to the public announcement made under Section 13 and 15. The dictionary meaning of the term ‘collate’ is to collect information from different places in order to put it together, examine, and compare it. It is not understood that how without examining and comparing the claims of the BBA holders etc., the IRP could admit the same and could constitute the Committee of Creditors comprising such Financial Creditors whose claims are yet to be confirmed after conducting the Forensic Audit. We are also unable to appreciate that how the RP could move an application under Section 21(6a)(b) for appointment of Authorised

Page 93 of 148 Representative on behalf of BBA holders, without satisfying himself regarding the bona fide of their claims.
25. It is also difficult to appreciate that how the RP failed to discharge his duty in terms of the provisions of Section 25 (2)(e) and (d) i.e., to maintain the updated list of claims and failed to appoint professionals i.e., expert Auditor to conduct the Forensic Audit. And if the IRP/RP had satisfied himself about the list of creditors/collation of claims then how he could place a plan which contained the provision regarding verification of the claim of creditors/stakeholders before the CoC and how could he not question such provision in the plan? Once, in terms of the provisions of Section 25(2)(d) of the IBC, 2016, it was for RP to engage the professional to get the Forensic Audit of the CD to be conducted which he could do as per the provisions of Regulation 27(3) of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations 2016, it is against the scheme of IBC, 2016, to accept the proposal in Resolution Plan regarding authentication of list of stakeholders/creditors. Besides, what is left to be decided by SRA is to arrive at a genuine list of creditors, thus it is not understood that before availability of genuine list of Creditors, how the CoC could be constituted. Even when the plan is approved by so-called CoC, one cannot argue that leaving it to SRA to decide the list of bona fide creditors/stakeholders as per provisions of the Resolution Plan is an exercise of commercial wisdom of CoC.
26. In terms of the provisions of Section 25(2)(g) of the Code, the Resolution Professional needs to prepare an Information Memorandum in accordance with Section 29 of the Code. In terms of the provisions of Section 29(2) of the Code, the RP is required to provide to RA access to all relevant information contained in the Information Memorandum in physical and electronic form. As can be seen from Regulation 36(2)(d) of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations 2016, the Information Memorandum shall contain inter alia a list of Creditors containing the names of the Creditors, the amounts claimed by them, the

Page 94 of 148 amount of their claims admitted and the security interest if any in respect of such claims. As can be seen from Regulation 36(b) of IBBI (Insolvency Resolution for Corporate Persons) Regulations 2016. It is with reference to the information contained in IM that the Resolution Applicant submits their Resolution Plan. Thus, before submitting the Resolution Plan, the PRA must know the list of Creditors and their claim. In the present case, as can be seen from the contents of the plan, it is left to SRA not only to finalise the list of claimants, but also to invite fresh claims.
27. Thus, the RP itself is not clear about the area/units available in the project to be allotted to the BBA holders/ CD holders. He is also not very clear about the number of claimants. The decision in this regard cannot be left to SRA. To a pointed query raised by us regarding the provisions contained in the plan, reproduced in para 20 hereinabove, both the Ld. Counsels for both RP and SRA submitted that the provision is residuary. It is not disputed by the Ld. Counsel for RP that the Applicants herein have been included in the list of claimants/creditors and are treated at par with BBA holders, even though they had not submitted any claim. It is also submitted by Ld. Counsel for the RP that though the area qua the project has been oversold, but still there is sufficient area to accommodate such BBA holders, who have come forward with their claims. In view of the fact that there is no division of units in the project, the RP has confusion regarding the number of claimants and available units. In the conspectus facts and circumstances and in view of the plea raised by the RP as also the uncertain situation regarding the area available in the project, numbers of claimants and even the admission of their claim, we deem it appropriate ask the Court Commissioner appointed qua CA-891/2019 and CA- 253/2019 to examine the record, books of accounts and other documents of CD qua the project in question i.e. the Universal Business Park situated at Badshapur, Gurgaon i.e. one of the projects of the CD, and would arrive at an independent conclusion as to whether:- (i) the units qua which the conveyance deeds were executed in favour of Applicants existed at the

Page 95 of 148 time of execution of conveyance deed and had been leased out to the State Bank of Bikaner and Jaipur, ICCI Bank and IndusInd Bank; (ii) there is any proof of payment of rent by the aforementioned banks to the Applicants; (iii) there is record available in the books of accounts of CD’s to establish that the Applicants had paid full price qua the units in respect of which the conveyance deeds had been executed in their favour; (iv) the Applicants ever staked any claim before the IRP/RP qua the units allotted to them. The Court Commissioner shall submit its report to RP within 03 weeks. The RP would examine the same within 03 days thereafter and file the Report/ findings of the Court Commissioner with this Tribunal within 07 days thereafter. The fees of the Court Commissioner qua the present issue would be Rs.2 Lacs, which would be paid Rs. Fifty thousand each by the Applicants in IAs-1732/2023, 678/2022, 3778/2022 and RP. The expenses and logistic support to the Court Commissioner would be provided by the RP. The District Administration shall provide the requisite police force and other support to the Court Commissioner, as and when needed, to facilitate the Court Commissioner to perform the aforementioned job and file her report. Court Officer as also RP would make a copy of this order available to the Court Commissioner, whose details would be available in the order passed in CA-891/2019 and CA-253/2019 forthwith. List the IA on 04.12.2023.”

In any case, this Tribunal while originally examining the Resolution plan did not interfere with the same on the grounds noted in our order dated 01.11.2023 and the order was broadly upheld by the Hon’ble NCLAT. Besides, since the SRA before us is consortium of association of homebuyers we are not inclined to interfere with the resolution Plan on such ground. Another reason not to do so is that in terms of the order dated 11.06.2021, which has been upheld by Hon’ble NCLAT, this Tribunal found the Resolution Plan broadly in

Page 96 of 148 order, by taking the view that the same could be approved by CoC in exercise of its commercial wisdom. Here, it would not be out of context to note that after having reserved the order, we have listed the matter for clarification and during the course of hearing on clarification i.e. 06.02.2025, when we reserved the orders again, Mr. Bhatt, the Ld. Counsel for Kotak Mahindra Bank Ltd and Kotak Prime Limited categorically submitted that after approval of addendum by CoC and in view of the fact that the representative of Bank would be part of the Monitoring Committee, he has no objection to the Resolution Plan.

IA-4569/2023: 51. The captioned Application has been preferred by the Applicant under Section 60(5) of the IBC, 2016 read with Rule 11 of the NCLT Rules, 2016, seeking directions against the Respondent/RP to allow her uninterrupted access and not obstruct the lawful ownership and possession of the property i.e. Unit No. 525, Universal Business Park located at Golf Course Extension Road, Sector

• 66, Gurugram, Haryana (“Unit”). The submissions made in the IA read thus: -
  (i) The Applicant has submitted that she is the lawful owner of the Unit vide registered conveyance deed dated 08.01.2018 and all rights therein including title and possession vest with her. The copy of Conveyance Deed executed between the Applicant and the Corporate Debtor is annexed as Exhibit-A to the application. (ii) The Applicant has further submitted that corporate insolvency resolution process (“CIRP”) commenced qua the Corporate Debtor on 03.07.2018 and as soon as it came to the notice of the Applicant, she

Page 97 of 148 expressed her concern to the Respondent/RP regarding filing of claim with the him. The Applicant was informed by the Respondent that she need not file a claim as nothing is owed by the Corporate Debtor to the Applicant. (iii) The Applicant then in the year 2020, vide email dated 12.03.2020 enquired with the Respondent whether the Unit could be rented to which the Respondent/ RP vide email dated 16.03.2020 simply replied 'No' without assigning any reason. Further, when the Applicant visited Universal Business Park to check about her Unit she was informed that premises has been sealed as per the instructions of the Respondent/ RP and without the consent of the Respondent/ RP entry in the premises is barred. Thus, the Applicant could not have access to her Unit of which she is a lawful owner. (iv) It has been further submitted that the Unit has also been subjected to resolution plan wherein the units sold prior to CIRP for which conveyance deeds have been executed will be subject to forensic audits by the resolution applicant to determine if the said sale is genuine or not. Cancellation of already executed conveyance deeds has also been proposed in the resolution plan. (v) The Applicant has further contended that she stood as lawful owner of the Unit vide the registered conveyance deed and cannot be denied access to the Unit since all rights qua the Unit stood transferred to her as contemplated under Section 54 of the Transfer of Property Act, 1882 read with Section 17 of the Registrations Act, 1908.

Page 98 of 148 (vi) The Applicant has placed reliance upon the judgment of Hon'ble Supreme Court in the matter of Suraj Lamp and Industries Private Limited v. State of Haryana & Anr. [(2012) 001 SCC 656l], wherein it has been held that the immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance. Further, in the matter of Prem Singh & Ors. v. Birbal & Ors. [(2006) 5 SCC 353], the Hon’ble Supreme Court ruled that it is settled principle of law that there is a presumption that a registered document is validly executed and the onus of proof would be on the person who has to rebut the presumption. (vii) The Applicant has asserted that the Unit is not part of the asset of the Corporate Debtor since the Unit has been already sold to the Applicant vide registered conveyance deed. To strengthen aforementioned, the Applicant relied upon the judgment of the Hon'ble National Company Appellate Tribunal in Kotak Mahindra Bank Limited & Anr. vs. Resolution Professional of Universal Buildwell Private Limited & Anr. [Company (AT)(Ins.) No. 661 of 2021] wherein the Hon'ble Appellate Tribunal upheld that units that have already been sold are no longer the asset of the Corporate Debtor. 52. The RP/Respondent has filed its reply to I.A. 4569/2023 stating therein:-
(i) The Universal Buildwell is a project of the Corporate Debtor measuring 2,15,915 sq. ft. whereas the area sold is 2,55,721.56 sq. ft. as per the records assessed by the RP and is hence oversold.

Page 99 of 148 (ii) The Universal Buildwell Park is an unfinished project, and no Occupation Certificate has been issued for the same, enabling any lawful possession to be granted to any units thereby. (iii) The Clause 1 and 3 of the Sale Deed registered in favour of the Applicant does not identify the carpet area of the Applicant’s Unit and does not show handing over possession of any demarcated space to the Applicant. (iv) As per the Resolution Plan, an expense of INR 20.32 crore was required for the completion of building, release of charge of Kotak Mahindra Bank and Kotak Mahindra Ltd. by payment of INR 3 Crore and further upon completion within 9 months, units will be allotted to all BBA holders and conveyance deed holders on a proportionate basis after verification. (v) The RP filed a report in terms of order of this Tribunal dated 27.05.2019 in C.A. No. 500/2019, wherein it is shown that total area sold is 13,250 sq. ft. by way of BBA and 14,150 by way of Conveyance Deed totalling to 27,400 sq. ft. against total saleable area 20,500 sq. ft. (vi) Complete payment has been received from the BBA and the Conveyance Deed holders both. However, some parties prior to the CIRP commencement date have converted their BBA into Conveyance Deed while other promoters have not converted their BBA into Conveyance Deed despite receipt of the fee payment. The Conveyance Deed holders have been well aware that since 2019 the area of Universal Business Park has

Page 100 of 148 been in Resolution Plan and has also collectively moved an application being I.A No. 2692/2021 which was dismissed vide order dated 16.07.2021. 53. The findings of the Court Commissioner with respect to the claim of the Applicant reads thus: - (i) The Unit in the Conveyance Deed executed in favour of the Applicant i.e. Ms. Aneeta Gupta did exist at the time of execution of conveyance deed. (ii) The conveyance deed mentions that Unit no. 525 is on the fifth floor and the map attached to the conveyance deed does not show any demarcation of the property or specification of where the unit is located particularly for Ms. Aneeta Gupta to the exclusion of any other person. (iii) A payment receipt by the Corporate Debtor has been provided which evidences that Ms. Aneeta Gupta had paid full price qua the unit in respect of which the conveyance deed was executed. Prior to the order of this Tribunal, no claim was made by the Applicant before the RP/IRP quo the units allotted 54. It is a trite law that all rights qua an immovable property shall stand transferred as contemplated under Section 54 of the Transfer of Property Act, 1882 if the document i.e. conveyance deed is registered as per Section 17 of the Registrations Act, 1908.
55. In the wake and in view of the finding recorded in concurred by Hon’ble NCLAT, the sold property cannot be treated as part of assets of the CD and needs

Page 101 of 148 to be excluded. Nevertheless, the project is not complete, and the unit is not separable in its present condition. Thus, though the Unit in respect of which Conveyance Deed was executed in favour of the Applicant would not be treated as part of assets of CD, to make the same as usable as part of the project, the Applicant would fulfil such terms and conditions which are required to be fulfilled by other allottees in whose favour BBAs are executed. In light of the above observation, IA- 4569/2023 stands disposed of.

IA-678/2022, IA-1732/2023 and IA-6746/2023: 56. The captioned applications has been filed by M/s Grace Steel Private Limited (IA-678/2022) seeking exclusion of Unit No. 104A, 104B, 208A and 208B in Universal Business Park; Mr. Jeetendra S Kaushal & Ors. (IA- 1732/2023) seeking exclusion of their respective units of Universal Business Park; and M/s Seriatim Enterprises LLP through its Partner Mr. Sanjay Dhody (IA-6746/2023) seeking exclusion of Unit No. 1-C admeasuring 971.03 sq. ft and Unit No. 6 admeasuring 1000 sq. ft at the Ground Floor of Universal Business Park from assets of the Corporate Debtor. 57. It is the case of the Applicants in aforementioned IAs that in terms of Conveyance Deed, the subject properties stood transferred to the Applicants wherein full consideration was paid as a result of which the legal title and right of the subject property vests in the Applicant. 58. The Sale Deed show clear specification of demarcation of the subject property which was executed between the Applicants and the Corporate Debtor.

Page 102 of 148 It is evident from the conveyance deed that the subject property has been transferred after paying full consideration in favour of the Corporate Debtor and resultantly the legal title and right of the subject property having vested in the Applicant could no longer be an asset of the CD.
59. The Applicants could refer to the order of this Adjudicating Authority dated 30.04.2019 wherein it was observed that the allottees having a registered document in their favour would have legal title as against claim by allottee who has no legal right. No dispute regarding the veracity of the conveyance deed entered between the Applicant and the CD could be raised. 60. The Resolution Plan submitted vide IA-1550/2019 could be remitted back to the CoC for modification in terms of payment vide order dated 11.06.2021 (supra). The order recorded that the Project-Universal Trade Towers has not been treated as asset of the Corporate Debtor but has been treated as asset of the allottees of the said Project as entire area has been sold to the allottees. 61. Later, it came of the knowledge of Applicants that the resolution plan considered Conveyance Deed holder as par with those having Builder Buyer Agreement and the assets which are subject matter of conveyance deed are considered as asset of the CD. In order to seek clarification regarding status of the conveyance deed holders of the Universal Business Park, group of conveyance deed holders filed an application i.e., IA-2962/2021, which was disposed of with liberty to raise the issue before the RP in terms of order dated 16.07.2021.

Page 103 of 148 62. The Applicants in IAs-678/2022 and 1732/2023, wrote representation dated 06.10.2021 and 24.07.2021 respectively to the Resolution Professional submitting that the subject property is not an asset of the Corporate Debtor and should not be made part of either Information Memorandum or Resolution Plan qua the Corporate Debtor and any part of the Resolution Plan dealing with the subject property would be illegal and invalid. In response, the Resolution Professional refused to follow the grievance of the Applicant in IA-678/2022 on merit on ground that a Resolution Plan has been approved by CoC and application for approval of same has been filed before the Tribunal. The RP, however, responded to the IA-1732/2023, stating that the area in Universal Business Park could be sold by the Ex-Directors of the Corporate Debtor in excess of available area in regard of which application for appointing Court Commissioner to determine the rights of allottees/buyers was pending before this Tribunal. He further stated that Conveyance Deed has been executed without obtaining Occupation Certificate from the concerned authorities. 63. Thereafter, the CoC approved amended Resolution Plan qua Universal Park Owners Association without removing the provision by which it treated the conveyance deed holders at par with those having builder buyer agreement and the asset which is subject matter of the conveyance deed are considered as asset of the Corporate Debtor. 64. Some of the Applicants approached this Tribunal raising the issue of difference between Conveyance Deed and BBA and this Tribunal viewed that there were some conveyance deed holders with regard to asset of the CD and

Page 104 of 148 appointed Court Commissioner qua CA-891/2019 and CA-253/2019 to examine the record, books of accounts and other documents of the CD in terms of order dated 01.11.2023. However, since the Applicant in IA-6746/2023 was not one of the Applicant, it approached the Court Commissioner submitting his Conveyance Deed and other relevant documents. 65. The Applicants submits that the subject property is not asset of the CD as the ownership regarding the same has been transferred to the Applicant after execution of the Conveyance Deed. The same could be recognised by the order this Tribunal dated 30.04.2019 wherein it was opined that the allottees having a registered document in their favour would have legal title as against the claim by an allottee who has no legal right, title or interest for want of a registered document. 66. The Applicants in IAs-1732/2023 and 6746/2023 also received rent for the subject property from various banks and a copy of the statement evidencing the rent is attached to the IA-6746/2023 as Annexure A5 which reads thus:- “12. The applicant also submitted that a registered Conveyance Deed is legal and valid in eyes of law and it is not within the power of the CoC qua the Corporate Debtor and the Resolution Professional to treat the subject property as part of the Resolution Plan and asset of the CD. Absence of Occupation Certificate does not in any manner affect the rights transferred of Applicant. In terms of Section 57 of TPA, 1882 r/w Section 17 of Registration Act, 1908, it is trite law that once a sale deed is registered and executed, it is a declaration of ownership in rem and cannot be tinkered with.”

Page 105 of 148 67. The Applicant and other Conveyance Deed Holders were not allowed to file claims as a financial creditor and were never a part of the CoC qua the CD. Therefore, the Resolution Plan approved by CoC treating Conveyance Deed Holder at par with BBA, alters and impinges upon the rights of the Applicant and make the Resolution Plan binding upon them. Further, the Applicant has made complete payment for the subject property as against the BBA holders and equal treatment given to both is disproportionate. 68. Furthermore, to ascertain the correctness of the claims made in IA Nos. 678/2022, 1732/2023 and 3778/2023, this Bench appointed a Court Commissioner with specific directions in terms of Para 27 of the order dated 01.11.2023 passed in IA-1732/2023, which reads thus: -
“ [...] In the conspectus facts and circumstances and in view of the plea raised by the RP as also the uncertain situation regarding the area available in the project, numbers of claimants and even the admission of their claim, we deem it appropriate ask the Court Commissioner appointed qua CA- 891/2019 and CA-253/2019 to examine the record, books of accounts and other documents of CD qua the project in question i.e. the Universal Business Park situated at Badshapur, Gurgaon i.e. one of the projects of the CD, and would arrive at an independent conclusion as to whether:-
(i) the units qua which the conveyance deeds were executed in favour of Applicants existed at the time of execution of conveyance deed and had been leased out to the State Bank of Bikaner and Jaipur, ICCI Bank and Induslnd Bank;
(ii) there is any proof of payment of rent by the aforementioned banks to the Applicants;

Page 106 of 148 (iii) there is record available in the books of accounts of CD's to establish that the Applicants had paid full price qua the units in respect of which the conveyance deeds had been executed in their favour;
(iv) the Applicants ever staked any claim before the IRP/RP qua the units allotted to them.
The Court Commissioner shall submit its report to RP within 03 weeks. ”

In compliance with aforesaid direction, the Court Commissioner filed a report dated 06.06.2024. Furthermore, in relation to IA- 6746/2023, the Court Commissioner filed a separate report dated 06.06.2024. The aforementioned reports have been taken on record. The report of the Court Commissioner reads thus: -

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As can be seen from the report of the Court Commissioner, the conveyance deeds could be executed in respect of the units claimed by the Applicants in the captioned IA. However, regarding the receipt of rent wherever claimed by the Applicants the Court Commissioner could not find any record Without going deep into the matter, we may refer to Para 49 of the order dated 11.06.2021, wherein this Tribunal viewed that the Unit that has already been sold are no longer assets of the Corporate Debtor and consequently cannot be liquidated. Their liquidation value has been provided as NIL. The Para has already been reproduced hereinabove. In the appeal preferred against the order, the view taken in said Para could be specifically concurred by Hon’ble NCLAT. Since, the Conveyance Deeds are not in dispute, it is held that the units in respect of Conveyance Deeds have been executed would not be treated as part of the assets

Page 126 of 148 of the CD. However, the Court Commissioner has submitted a report indicating that the areas of the unit qua which CD have been executed are not demarcated. In any case, since the areas of the units are not demarcated and the same cannot be used independent of the project, the Applicants would be liable to fulfil such terms and conditions as are required to make the flats/units in question usable like other Units in respect of which BBA could be executed in favour allottees. In the wake, IA-678/2022, IA-1732/2023 and IA-6746/2023 stands disposed of. 71. Various parameters required to be examined by this Tribunal in terms of the provisions of Section 30(2) of the IBC, 2016 have already been noted hereinabove and except the issue of supervision/monitoring of Implementation, the same is in order. Regarding monitoring, the CoC left it to this Tribunal to appoint a Monitoring Committee. At the cost of repetition, the relevant provision of the Resolution Plan is reproduced thus:- “Appointment of Monitoring Agency for supervision of implementation of the Resolution Plan:-

Resolution Applicant proposes the constitution of monitoring committee as under to supervise the implementation of plan:-

1. A person nominated by Hon'ble NCLT (Remuneration to be decided by Hon'ble NCLT and to be shared by all three Associations in share of Claims).

2. A Legal professional nominated by Resolution Applicant (Remuneration to be decided by the Resolution Applicant and to be shared by all three Associations in share of Claims).

3. One representative from each association i.e. Universal Aura, Universal Green, Universal Business Park.

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4. One representative from lenders as nominated by them.”

In the Resolution Plan, a provision has been made that the homebuyers would be entitled to approach SRA for their claims. The relevant excerpt of the Resolution Plan reads thus:-

For the sake of clarity, the provisions made in the Resolution Plan for those allottees who have not submitted their claims during insolvency proceedings is quoted hereinbelow:

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It is apposite to mention that while the IA for approval of resolution plan stood reserved, the matter was listed on 06.12.2024 for clarification on the following two points:

Page 129 of 148 A. More clarity on proposed liquidation process with timelines; B. Which are the Banks involved alongwith their security interests in the liquidation, and how the same is proposed to be treated. 75. In compliance of the above, an affidavit dated 30.01.2025 (r/w addendum affidavit dated 12.02.2025), was filed by the RP providing details of the banks involved alongwith their security interests in the liquidation and how the same is proposed to be treated under the plan, which reads thus: -

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*In terms of the addendum affidavit dated 12.02.2025 filed by RP, at Sl. No. 2, the claim of the Kotak Mahindra Prime Limited i.e. Rs. 37,34,83,401/- is to be read in addition to the claim of Rs. 13,92,73,227 of Kotak Mahindra Bank Limited.

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Moreover, the SRA also filed an affidavit dated 03.02.2025 providing in respect of the clarification sought for the timelines of liquidation process. It was submitted by the SRA that in case any asset sale is to be done by the Monitoring Committee, the same shall be endeavoured to be completed within 180 days from the date of approval of the Resolution Plan by this Adjudicating Authority. Relevant excerpt of the affidavit filed by SRA reads thus: -
“iii. In respect of the clarification sought for the timelines of liquidation process, it is stated that in case of any asset sale is to be done by the Monitoring Committee the same will be endeavour to be completed within

Page 135 of 148 180 days from the date of approval of Resolution Plan by this Hon’ble Tribunal. The dispensation in respect of each project is as provided follows: S. NO. PROJECT NAME CLARIFICATION 1.
Universal Prime Plots in Sohna (S. No. A on Page No. 297 of I.A. No. 5003 of 2021) There is no change in the approved Resolution Plan by the CoC in its 15th CoC meeting held on 11.11.2019 and SIDBI is the only Financial Creditor who has equitable mortgage rights on the residential plots in this Project. Out of 24 plots, 18 residential plots have been sold as such the right and title in respect of these 18 sold plots belong to the Homebuyers. The only exercisable rights of SIDBI are in respect of the 6 (six) unsold plots. In terms of the Resolution Plan (Page 252 of I.A. nO. 5003 of 2021), SIDBI is allowed to realise its security interest towards satisfaction of their claim against the Corporate Debtor.

SIDBI can initiate the realisation of its security interest in the 6 (six) unsold units immediately after approval of the Resolution Plan considered as Effective Date of the Resolution Plan. The rights and title of the 6 (six) unsold plots shall deemed to have been transferred and security realisation exercise shall have to be undertaken by SIDBI as per their established norms and subject to time taken for any documentation to be executed by Corporate Debtor as may be required by

Page 136 of 148 SIDBI.

SIDBI has also filed an Application bearing I.A. No. 5643 of 2021 seeking directions to get the Resolution Plan revised and to provide for release of security interest of all the 24 units mortgaged to Applicant. However, the said Application was dismissed for non- prosecution vide Order dated 26.05.2023 passed by this Hon’ble Tribunal. 2.
Universal Square (S. No. B on Page No. 298 of I.A. No. 5003 of 2021) Joint Development Agreement dated 15.01.2008 was entered between Nova Realtors Pvt. Ltd. and the Corporate Debtor. Further, Nova Realtors Pvt. Ltd. later transferred the Development Rights to Tremendous Comped Pvt. Ltd. (now M3M India Pvt. Ltd.) vide Transfer of Developments Rights Agreement dated 15.12.2008.
M3M India Private Limited filed a suit bearing Case No. 187/2015/2017 for declaration, permanent injunction and mandatory injunction and has obtained Order from Ld. District Court, Gurgaon for cancellation of Development Rights of the Corporate Debtor vide Order dated 24.01.2018. Copy of Order dated 24.02.2018 passed by the Ld. District Court, Gurgaon is annexed herewith and marked

Page 137 of 148 as Annexure- A. Thereafter, the Corporate Debtor had filed an appeal bearing Civil Appeal No. 190 of 2018 against Order 24.02.2021, upheld the Order dated 24.01.2018. Copy of Order dared 24.02.2021 passed by the Ld. ADJ, Gurgaon is annexed herewith and marked as Annexure- B.
Aggrieved by Order dated 24.02.2021, the Resolution Professional further filed an Appeal bearing RSA No. 284 of 2021 before the Hon’ble High Court of Punjab and Haryana. Meanwhile, the Hon’ble High Court of Punjab and Haryana was pleased to grant status quo in favour of the Corporate Debtor vide order dated 04.05.2021. Copy of Order dated 04.05.2021 passed by the Hon’ble High Court of Punjab and Haryana is annexed herewith and marked as Annexure- C.
During the pendency of Appeal, the Association of Universal Square moved an Application bearing C.M. No. 2350-C of 2021 under Order 1 Rule 10 of the Code of Civil Procedure, 1908, seeking impleadment of the Association being necessary party. However, the Hon’ble High Court of Punjab and Haryana dismissed the said Application vide Order dated 04.07.2022. Copy of Order dated 04.07.2022 passed by the Hon’ble High Court of Punjab and

Page 138 of 148 Haryana is annexed herewith and marked as Annexure- D.

In view of the aforesaid Order dated 04.07.2022, the Association of Universal Square filed an Appeal before the Hon’ble Supreme Court bearing C.A. No. 1515 of 2024 and vide Order dated 05.09.2022, the proceedings before the Hon’ble High Court of Punjab and Haryana were stayed. Copy of Order dated 05.09.2022 passed by the Hon’ble Supreme Court is annexed herewith and marked as Annexure- E.

The Successful Resolution Applicant shall pursue the Appeal pending before the Hon’ble High Court of Punjab and Haryana as mentioned above. Based on the outcome of the Appeal, upon disposal of the matter in favour of the Successful Resolution Applicant, the Successful Resolution Applicant shall sale the development rights within 6 (six) months from the date of the final Order to the third party and distribute the proceeds in ratio of their admitted claim. 3.
The Market Square (S. No. C on Page No. 298 of I.A. No. 5003 of 2021) This project is on a land owned by M/s Samyak Projects Private Limited (M/s. SMPPL) and the Corporate Debtor have the development rights with 50-50 share which was later on modified to 43% and 57% is in

Page 139 of 148 favour of M/s. Samyak Projects Private Limited by virtue of Compromise Agreement before the Ld. District Courts, Gurgaon vide Order dated 17.04.2013. Consequently, a settlement agreement dated 18.01.2018 was reached, the Corporate Debtor was allotted 22,700 Sq. Ft. of super built up area in the Project i.e. approximately 17.02% of total area of the project.

Furthermore, an application was filed bearing I.A. No. 891 of 2019 under Section 45 read with Section 49 of the Insolvency and Bankruptcy Code, 2016, by the Resolution Professional before this Hon’ble Tribunal for reversing the effect of the transaction under the Settlement Agreement dated 18.01.2018 and restoring the rights of the Corporate Debtor to the Market Square Project as prior to Settlement Agreement dated 18.01.2018 and the same is pending before this Hon’ble Tribunal.

The outcome of the aforesaid Application shall be honoured by the Successful Resolution Applicant and in case the rights of the Corporate Debtor is restored in the allotted area of 22,700 Sq. Ft., upon disposal of the aforesaid matter in favour of the Successful Resolution Applicant. The Successful Resolution Applicant shall sale

Page 140 of 148 the allotted area of 22,700 Sq. ft. within 6 (six) months from the date of the final Order to the third party and distribute the proceeds, there of between the Homebuyers of the Corporate Debtor in the ratio of their admitted claims. 4.
The Pavilion (S. No. D on Page No. 298 & 299 of I.A. No. 5003 of 2021) The construction activity on this Project has not started and around 86.4% on inventory in this Project is unsold.

The land, future and present construction has been mortgaged to M/s Kotak Mahindra Bank Ltd. and M/s Kotak Mahindra Prime Ltd. and as per the terms of the Resolution Plan, the only viable option available at this stage for the Corporate Debtor is to sell- off the land and distribute the sale proceeds among the financial creditors viz. M/s Kotak Mahindra Bank Ltd. and M/s Kotak Mahindra Prime Ltd. and the Homebuyers in the ratio of their admitted claim. As per the terms of the Resolution Plan (S. No. 2 on Page No. 252 of I.A. No. 5003 of 2021), M/s Kotak Mahindra Bank Ltd. and M/s Kotak Mahindra Prime Ltd. are vested with the rights for realising the security interest in this Project for satisfaction of claims under this insolvency resolution proceedings.
Or

Page 141 of 148 SRA has already identified the buyer i.e. RDB Infrastructure and Power Limited and received an undertaking and Bank Guarantee towards the Universal Pavilion property from the buyer. The total sale consideration towards the Pavilion Property is INR 43 Crores, as per written submissions filed by SRA on 12.09.2024 in compliance of Order dated 04.09.2024. Immediately upon approval of the Resolution Plan the sale can be undertaken and the proceeds can be distributed in accordance with the Resolution Plan to Kotak Mahindra Bank and Kotak Mahindra Prime. A Copy of Undertaking and Bank Guarantee is annexed herewith and marked as Annexure- F “Colly”. *In terms of the addendum affidavit dated 10.02.2025, the word “plots” appears at Sl. No. 1 to Sl. No. 4(1)(iii) in respect of Universal Prime is to be read as “units”. 2. What are the Conditions Precedents to be met for for successful conclusion of the Resolution/ Liquidation process and what is the timelines for meeting the same: There are no conditions precedents in the Resolution Plan and based on guidance of the Monitoring Committee, the assets will be sold at the earliest
to recover the funds and transfer the proceeds to the respective beneficiaries.
5. I say and submit that all the pending application before this Adjudicating Authority after approval of Resolution Plan will be pursue by the Successful Resolution Applicant.”

Page 142 of 148 77. Further, in terms of the resolution plan, we deem it appropriate to appoint Ms. Rashmi Chopra, Senior Adv, already appointed by us as Court Commissioner, as the Convenor/ Chairperson of the Monitoring Committee to supervise the implementation of the Resolution Plan. The remuneration of the Convenor/ Chairperson of the Monitoring Committee shall be Rs. 2,50,000/- per month. Further, the RP is appointed as an ex-officio member in the Monitoring Committee. The other members of the Monitoring Committee would be as follows:- ● A Legal professional nominated by Resolution Applicant (Remuneration to be decided by the Resolution Applicant and to be shared by all three Associations in share of Claims).
● One representative from each association i.e. Universal Aura, Universal Green, Universal Business Park.
● One representative from lenders as nominated by them.

In the Resolution Plan, the Resolution Applicant has sought certain reliefs and concessions that fall under the jurisdiction of different Government Authorities, and/or are subject to the provisions of different laws for the time being in force. In this connection, it is made clear that the amount payable by the SRA in terms of the plan to different creditors, stakeholders, and to keep the Corporate Debtor as a going concern is not a subject matter of any condition, assumptions, relief/concessions and/or qualification. It also needs to be underlined that the provisions of Section 31(4) of IBC, 2016 mandate the Resolution Applicant to obtain the necessary approval required

Page 143 of 148 under any law for the time being in force within a period of one year from the date of approval of the resolution plan by the Adjudicating Authority under Section 31 of the IBC, 2016, in terms of the provisions of Section 14 of the Code even during the period of CIRP, no default in payment of current dues is a precondition for continuation of the license, permit, registration, and similar rights. Thus, even during the moratorium period, the facilities mentioned above are made available to the CD only when there is no default in payment of the current dues, on approval of the resolution plan, the SRA/CD cannot be put on a better footing by exempting it from paying its legitimate dues under the law. 79. Furthermore, the Code provides for consideration of the claims, by the IRP/RP in terms of the provisions of Section 18(b) and Section 25(b) read with the relevant regulations. 80. The Code also provides for the preparation of an Information Memorandum in terms of the provisions of Regulation 36(2) of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, which contains, inter alia, a list of creditors along with the amounts claimed by them. Regulation 36(1) of the CIRP Regulations, provides for submission of the said Information Memorandum to each member of the COC. Regulation 36A provides for invitation for expression of interest and Regulation 36B provides for a request for a Resolution Plan. It is with reference to the Information Memorandum and Evaluation Matrix that the RP issues a Request for Resolution Plan. The Request for Resolution Plan details each step in the process and the manner and purposes of interaction between

Page 144 of 148 the Resolution Professional and the Prospective Resolution Applicant. The Resolution Plan submitted after consideration of the IM, EM and the RFRP is then examined by the Committee of Creditors. Even then, it needs to satisfy the requirements of Regulations 37 and 38 of the extant regulations and only then it can be approved by the COC in terms of the provisions of Regulation 39 of the aforementioned regulations. After such approval, the Plan effectively becomes a contract entered into between CD represented through RP, SRA, the creditors of the CD, and other stakeholders and is binding on all of them. Section 31(1) of IBC, 2016, thus takes care of most of the reliefs/concessions/waivers which are required by the Resolution Applicant. Furthermore, Section 32A of the Code provides for cessation of the liability for offences committed by the CD prior to initiation of the CIRP subject to the conditions laid down in the said section. 81. In this context, a reference is made to the decision of Hon’ble NCLAT in Worldfa Exports Pvt. Ltd Vs. Vivek Raheja and Anr. [Company Appeal (AT) (Insolvency) No. 827 of 2024 & I.A. No. 2994 of 2024] dated 30.04.2024 wherein a challenge was laid against the following observation of the NCLT:- “16. However, the resolution plan shall not be construed as waiver to any statutory obligations/liabilities arising out of the approved resolution plan and the same shall be dealt in accordance with the appropriate authorities concerned as per relevant laws. We are of the considered view that if any waiver is sought in the resolution plan, the same shall be subject to approval by the concerned authorities. The same view has been held by the Hon’ble Supreme Court in Ghanshyam Mishra and Sons Private Limited vs. Edelweiss Asset Reconstruction Company Limited and Embassy Property Development case (supra).”

Page 145 of 148 The Hon’ble NCLAT, however, dismissed the Appeal with the following observation:
“Adjudicating Authority has already referred to the Judgment of the Hon’ble Supreme Court in the matter of Ghanshyam Mishra & Sons Private Limited’ Vs. Edelweiss Asset Reconstruction Company Limited’, in Civil Appeal No. 8129 of 2019, which clearly laid down that all claims which have not been dealt in the Resolution Plan does not survive after the approval of Resolution Plan. 6. Insofar as statutory waivers and concessions, Adjudicating Authority has rightly observed that SRA to file appropriate necessary application before the necessary Forum/Authority in order to avail the relief and the concession. 7. The Resolution Plan having been approved it is always open for the Applicant to make an appropriate application before the Statutory Authority for grant of such relief as permissible after approval of the Resolution Plan. 8. It goes without saying that all past liabilities which are not dealt with in the Resolution Plan stand extinguished by view of the Judgment of the Hon’ble Supreme Court in `Ghanshyam Mishra & Sons Private Limited’ (Supra) which is a well settled law.”

In sum and substance, the SRA/CD would be entitled to no other relief/concession/waiver from this Adjudicating Authority except those available to it, as per the provisions of Section 31(1) and 32A of IBC, 2016. The SRA is, however, at liberty to approach the relevant authorities, who would consider these claims as per the provisions of the relevant law, in an expeditious manner.

Page 146 of 148 83. In the sequel to the above, we are inclined to approve the Resolution Plan along with addendum as approved/recommended by the CoC as placed by the Applicant before this Adjudicating Authority.
84. Regarding the implementation of the Plan, the SRA is directed to strictly adhere to the timeline provided in the Resolution Plan as also the Revised Addendum dated 05.08.2021 as follows:- i. The total payouts of ₹56.58 crores which encompass the payment of CIRP costs, employee dues, and operational creditor settlements, key financial creditors, including DHFL and Kotak Mahindra entities by Universal Greens, Universal Aura and Business Park would be made within 180 days from the date of this order.
ii. The construction of Universal Greens Project shall be completed within a period of 36 months from the date of this order as per the schedule provided in the Addendum. iii. The construction of Universal Aura Project shall be completed within a period of 36 months from the date of this order as per the schedule provided in the Addendum.
iv. The construction of Universal Business Park Project shall be completed within a period of 6 months from the date of this order as per the schedule provided in the Addendum.
v. The completion period of construction activities wherever appearing in the Resolution Plan approved by CoC in its 15th meeting shall now be

Page 147 of 148 considered as changed to 36 months from the Effective Date i.e. date of approval of the plan by this Adjudicating Authority. vi. The Monitoring Committee would ensure such assets which need to be disposed of and the proceeds of which are to be given to certain creditors in terms of the plan should be disposed as expeditiously as possible preferably within 180 days with subject to the consent of the creditors whose dues are to be cleared out of the sale proceeds (as per plan).
85. It is further ordered that:- (i) All claims which have not been dealt with in the Resolution Plan would not survive after the approval of the Resolution Plan. (iii) The SRA/CD would be entitled to no other reliefs/ concessions/waivers except those are available/permissible to it as per the provisions of Section 31(1) and 32A of IBC, 2016. The SRA is at liberty to approach the relevant authorities who would consider these claims as per the provisions of the relevant law in an expeditious manner. (iv) The Monitoring Committee as provided in the Resolution Plan shall be set up by the Applicant/RP within 07 days of passing of this Order, which in turn, shall take all necessary steps for time bound implementation of the Resolution Plan as per approval. (v) The order of the moratorium in respect to the corporate debtor passed by this Adjudicating Authority under Section 14 of the IBC, 2016 shall cease to have effect from the date of passing of this Order; and

Page 148 of 148 (vi) The Resolution Professional shall forward all the records relating to the conduct of the CIRP and the Resolution Plan to the IBBI for its record and database. 86. The Court Officer and Resolution Professional (RP) shall forthwith make available/send a copy of this Order to the CoC and the Successful Resolution Applicant (SRA) for immediate necessary compliance.
87. A copy of this order shall also be sent by the Court Officer and Applicant to the IBBI for their records.

Sd/-

  Sd/- 

(SUBRATA KUMAR DASH)

(ASHOK KUMAR BHARDWAJ) 

MEMBER (T)

      MEMBER (J)