Ashwani Kumar Kaura vs Devendra Umrao Resolution ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Insolvency) No.190 of 2024 (Arising out of Order dated 20.11.2023 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi, Court-III, in IA No.1854/2022 in IB-85(ND)/2021)

IN THE MATTER OF: Ashwani Kumar Kaura, Tower No.4, Apartment No.802, Sector 115, Sante Majra, PO Landran, Mohali, Kharar Landran Road, Near Chappar Chiri, District SAS Nagar (Mohali), Punjab-140307. ... Appellant Versus 1. Devendra Umarao, Resolution Professional of Ansal Lotus Melange Projects Pvt. Ltd., House No.B-43A, First Floor, Kalkaji, New Delhi 110019. 2. Singla Builders and Promoters Ltd., Successful Resolution Applicant, Plot No.1265-C, Sector-82, J.L.P.L., Industrial Area, SAS Nagar, Mohali, Punjab-140301. ... Respondents

Present: For Appellant: Harsh Gurbani, Advocate. For Respondents: Advocate Abhishek Parmar, for R-1 Advocate Ashish Aggarwal, Advocate Nalin Dhingra, for R-2 Mr. Gaurav Mitra, Advocate

JUDGMENT

ASHOK BHUSHAN, J.

This Appeal has been filed challenging order dated 20.11.2023

passed in IA No.1854 of 2022. The Adjudicating Authority by the impugned

order has approved the Resolution Plan submitted by the Successful

Resolution Applicant ("SRA"). The Appellant aggrieved by the said order

has come up in this Appeal.

Company Appeal (AT) (Insolvency) No.190 of 2024 1

2. Appellant's case is that the orders passed by the Adjudicating

Authority refusing to accept the claim with regard to Units CB-05, CB-06,

is pending consideration in Company Appeal (AT) (Insolvency) No.1039 of

2023 and with regard to Units 1GF and 5GF orders passed by the

Adjudicating Authority are also been challenged in Company Appeal (AT)

(Insolvency) Nos.186 and 187 of 2024. The Appellant's claim having not

been rightly considered, the approval of Resolution Plan needs to be set

aside and matter be remitted for reconsideration.

3. The learned Counsel appearing for RP refuting the submission of

learned Counsel for the Appellant submits that the Plan has been

approved, which Plan is in compliant with Section 30, sub-section (2) of

the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the

"Code") and claim with regard to Units 1GF and 5GF has already been

admitted and a provision has been made in the Plan that Appellant shall

receive his amount towards the assured return with regard to the aforesaid

two Units and with regard to other two Units of the Appellant, IAs filed by

the Appellant have already been rejected, which has been challenged in

Appeal No.1039 of 2023. It is submitted that there is no ground to interfere

with the order approving the Resolution Plan.

4. The learned Counsel for the SRA also has contended that SRA has

undertaken to pay the assured return to extend its admitted claim as per

the Resolution Plan and SRA has also undertaken to execute Conveyance

Deed for two Units CB-05 and CB-06. The Appellant is being paid 40% of

the enhanced admitted claim towards the assured return, pertaining to

Company Appeal (AT) (Insolvency) No.190 of 2024 2 1GF and 5GF. SRA is also executing Conveyance Deed for Unit CB-05 and

CB-06. It is submitted that the Appellant is a speculative investor and is

not resident of India and has approached several Forums for raising his

grievances.

5. We have heard learned Counsel for the parties and have perused the

records.

6. The Resolution Plan was approved by the Committee of Creditors and

thereafter by Adjudicating Authority on 20.11.2023. The Resolution Plan

provides for payment of all stake holders. In paragraphs 6.7, 6.8 and 6.12

of the impugned order, the Adjudicating Authority has noted the following:

"6.7 Payment to Other Creditors (other than Financial Creditors and Operational Creditors)

The Other Creditors of the Corporate Debtor shall be paid Rs.43,72,530/- of the total admitted amount of Rs.81,55,356/- as towards their full and final settlement as detailed in Schedule 5.

The said payment shall be made in three equal installments. The payment of first instalment shall be made in Qtr 3, Second Instalment in Qtr 4 and Third Instalment in Qtr 5 from the effective date.

6.8 Claims of the Financial Creditors (Home Buyer, Commercial Buyer and Studio/ Celebrity Suite Buyers/ Allottees) and Other Creditors admitted after Submission of the present Resolution Plan:

The claims of the Financial Creditor (Home Buyer, Commercial Buyer and Studio/ Celebrity Suite Buyers/

Company Appeal (AT) (Insolvency) No.190 of 2024 3 Allottees) and other Creditors if accepted and admitted by the Resolution Professional after the submission of present Resolution Plan, shall be considered by the Resolution Applicant, and shall be treated at part with the claims of the present Financial Creditor (Home Buyer, Commercial Buyer and Studio Celebrity Suite Buyers/ Allottees) and other Creditors in accordance with Clause 2.9 of Schedule 5.

6.12 Terms of the Resolution Plan: The term of the Plan shall commence on the date of the Effective Date and shall be valid till 30 months from the effective date (which includes 6 months for obtaining the necessary sanctions and 24 months for construction as detailed in Schedule 7). The payments are proposed to eb made as per Schedule 5.

Summary of Proposed Settlement Particulars Admitted Propose Proposed Remark Claims/ d% Settlement s deemed CIRP cost Rs. Rs.

IRP Costs 30,00,000 100% 30,00,000 (approx.) (Total) Home Buyers, Commercial Buyers, Studio/ Celebrity Home Suite Buyers Buyers/ will get the Commercial Flat(s) Space 10,85,01,85 100% Commercial Buyers 2 Space(s)/ Celebrity Celebrity Suit Buyers Suit(s) as per the project completion schedule, thereby no payment is required to be made

Company Appeal (AT) (Insolvency) No.190 of 2024 4 Operational Creditors (for 48,930 100% 48,930 Admitted Claim Amount upto Rs.50,000)

Operational Creditor (for Admitted 1,97,38,885 40% 78,91,554 Claim Amount more than Rs.50,000) Other 25,75,970 80% 22,20,776 Creditors (Other than FC and OC) (For Admitted Claim Amount upto Rs.5,00,000 )

Other Creditors (Other than FC and OC) 53,79,386 40% 21,51,754 (for Admitted Claim Amount more than Rs.5,00,000 ) Total 1,53,13,015 "

7. The Plan provides for 40% payment to other Creditors under which

category the claim of the Appellant was admitted. It is well settled that

commercial wisdom of the CoC in approving the Resolution Plan is not to

be interfered with, unless it is shown that Plan violates any of the

provisions of Section 30, sub-section (2) of the Code. The Hon'ble Supreme

Company Appeal (AT) (Insolvency) No.190 of 2024 5 Court in its judgment in K. Shashidhar vs. Indian Overseas Bank and

Ors. - (2019) 12 SCC 150 has laid down that the legislature, consciously,

has not provided any ground to challenge the "commercial wisdom" of the

Committee of Creditors, except on the grounds as provided in Section 30,

sub-section (2).

8. In the present case, no grounds have been made that Resolution Plan

approved by the CoC and the Adjudicating Authority violates any of the

provisions of Section 30, sub-section (2). We, thus, do not find any ground

in this Appeal to interfere with the impugned order of the Adjudicating

Authority approving the Resolution Plan. There is no merit in the Appeal.

The Appeal is dismissed. Parties to bear their own costs.

[Justice Ashok Bhushan] Chairperson

[Justice Yogesh Khanna] Member (Judicial)

[Barun Mitra] Member (Technical)

NEW DELHI

22nd March, 2024

Ashwani

Company Appeal (AT) (Insolvency) No.190 of 2024 6