Greenopolis Welfare Association vs Three C Shelters Pvt Ltd & Anr

[Arising out of Orders dated 20.07.2020 and 17.09.2020 passed by National Company Law Tribunal, New Delhi in I.A. No.3491(ND)/2020 in/and C.P. IB-2721/ND/2019]

IN THE MATTER OF: Before NCLT Before NCLAT

Greenopolis Welfare Applicant Appellant Association (in I.A.) E-302, Anupam Apartments, East Arjun Nagar, Delhi - 110032

Vs.

1. Three C Shelters Respondent Respondent No.1 Private Limited (Corporate Debtor) C-23 Greater Kailash Enclave, Part - 1, New Delhi 110048

2. Straight Edge Applicant/ Respondent No.2 Contracts Pvt. Ltd. Operational Creditor Through the (in C.P. IB-2721/ND/2019) Interim Resolution Professional - (in CP/IB/1071/ND/2019) Sh. Ranjit Kumar Verma Ground Floor, 4, Dayanand Vihar, Main Vikas Marg, Delhi - 110092

For Appellant: Mr. Piyush Singh, Mr. Aditya Parolia, Mr. Prateek Vats and Ms. Aditi Sinha, Advocates.

For Respondent: Mr. Jayant K. Mehta, Mr. Pankaj Agarwal, Ms. Sonal Alagh, Ms. Shreya Kohli and Mr. Nikhil Jain, Advocates for R-1. Mr. Amarpal, IRP Mr. GP Madaan, Ranjeet Kumar Verma and Mr. Pranay Chitale (RP), R-2. 2

Mr. Deepak Garg, Advocate for R-2. Ms. Asmita Chaudhary, for Impleadment. Mr. Sumedha Dang and Mr. Viabhav Gaggar, for Interveners.

JUDGEMENT

(06th January, 2021) A.I.S. Cheema, J. :

1. Appellant claims to be association representing 350 home buyers

in the project Greenopolis of the Respondent No.1 - Three C Shelters Pvt.

Ltd. (Corporate Debtor). The Appeal has been filed against the admission

of Application under Section 9 of Insolvency and Bankruptcy Code, 2016

(IBC - in short) in C.P. IB-2721/ND/2019 dated 20th July, 2020

(Impugned Order No.1) (Annexure A-1 - Page 34) and against Order dated

17th September, 2020 (Page 34A - Impugned Order No.2) by which Order

I.A. No.3491 of 2020 filed by the Appellant in the Petition was dismissed.

2. Impugned Order No.1 is short Order which reads as under:-

"Heard the submissions made by the Operational Creditor as well as Corporate Debtor. Annexure A-10 which is affidavit of admission shows that on January 27, 2020, the Director of Three C Shelters Private limited. Mr. Girish Chander Joshi has confirmed that the Corporate Debtor has to pay to the Operational Creditor as per his claim. Therefore, the petition is allowed."

Impugned Order No.2 is also short Order which reads as under:-

"I.A. No. 3491/2020: Application is without any merit. Hence dismissed."

Company Appeal (AT) (Ins) No.891 of 2020 3

The above Orders have been challenged in this Appeal which was

filed on 22nd September, 2020. Due to pandemic, objection regarding

limitation of Impugned Order No.1 is ignored.

3. The Appellant claims that it is the largest Financial Creditor of

Corporate Debtor and is aggrieved by the admission Order whereby

Company Petition IB 2721(ND)/2019 was allowed "though to the relief of

the Appellant, the Petition was not admitted". It is claimed that the

admission Order is perverse and devoid of merit. Appellant claims that

Respondent No.1 - Three C Shelters Pvt. Ltd. - Corporate Debtor lured

Appellant to book units in the project which was being developed by the

Corporate Debtor and made false representations with regard to timely

possession. The Order of CP (IB) No.2721/2019 which has been admitted

by the admission Order is challenged on the ground that the Respondent

No.2 - Straight Edge Contracts Pvt. Ltd., who filed the Application under

Section 9 of IBC as Operational Creditor was itself a Corporate Debtor in

another Petition "Gupta Ji Electric Company vs. Straight Edge

Contracts Pvt. Ltd." in IB No.1071/ND/2019 (other Petition - in short).

That other Petition was admitted on 26th February, 2020. Appellant

claims that in that Petition, the Respondent No.2 who was Corporate

Debtor took contrary stand against Respondent No.1. The admission

Order of that matter dated 26th February, 2020 (Annexure A-2 - Page 35)

recorded that the present Respondent No.2 had assigned the debt which

was owed to Gupta Ji to principal employer of present Respondent No.2.

Company Appeal (AT) (Ins) No.891 of 2020 4

The Appellant thus wants to claim that Respondent No.2 was not an

Operational Creditor. It is also claimed that Respondent No.1 - Corporate

Debtor launched the Greenopolis Projects in 2011 in collaboration with

"Orris Infrastructure Pvt. Ltd." and the project was of 38 towers and

thousands of flats were to be developed by the Corporate Debtor in

conjunction with Orris Infrastructure Pvt. Ltd. It is claimed that for

fruitful CIRP (Corporate Insolvency Resolution Process), the Corporate

Debtor cannot be subjected to the CIRP process alone since the project

was being developed jointly with Orris Infrastructure. It is claimed that it

is not feasible to only subject one participant into one CIRP. According to

Appellant, there should be group insolvency of Respondent No.1 with

Oriss Infrastructure.

4. The Appellant claims that Respondent No.2 - Operational

Creditor could not have initiated insolvency proceedings against the

Corporate Debtor as there was bar under Section 11(b) of IBC. Appellant

stated that in the matter of M/s. Gupta Ji when the Appeal was filed,

matter between the Respondent No.2 and Gupta Ji was settled in

Company Appeal (AT) (Ins) No.388 of 2020. Respondent No.2 exited

rigours of CIRP only on 13th March, 2020 and thus 12 months were not

over as required by Section 11(b) of IBC.

5. The Appellant further claims and it is argued that the Impugned

Order of admission is perverse as no reasons have been recorded and it is

mechanical admission Order. The Appeal points out (para - 8(ii)) that

Company Appeal (AT) (Ins) No.891 of 2020 5

Respondent No.1 - Corporate Debtor who was under obligation to deliver

the units to the Appellant in timely manner completely failed to do so.

According to the Appellant, the Appellant had filed I.A.No.3491 of 2020 to

bring the facts to the notice of Adjudicating Authority. The Adjudicating

Authority failed to appreciate that there was collusion between the

Respondents which was highlighted in the I.A. No.3491 of 2020. The

Adjudicating Authority should have invoked Rule 11 of National

Company Law Tribunal Rules, 2016 and invoked inherent powers to

investigate the case which was made out by the Appellant. The prayer in

Appeal is to set aside both the Impugned Orders and to take action

against the Respondents. Prayer (d) states that this Tribunal should

direct initiation of CIRP on a project-wise basis as per decision of this

Tribunal in "Flat Buyers Association Winter Hills Vs. Umang Realtech

Pvt. Ltd." in Company Appeal (AT) (Ins) No.926 of 2019.

6. In the present matter, the Respondents 1 and 2 are now both

under CIRPs, both represented through different Insolvency Resolution

Professionals. There are also I.A.s 2742 and 2743 filed by Company

named "Orissa Infrastructure Pvt. Ltd." under Rule 11 of National

Company Law Appellate Tribunal Rules, 2016 seeking intervention. There

is I.A. 2605 of 2020 by one Dhruv Ranjan Verma claiming to be

representing 120 home buyers seeking intervention and claiming that the

CIRP should be continued.

Company Appeal (AT) (Ins) No.891 of 2020 6

7. Before proceeding further, it would be appropriate to make brief

reference to the developments before the present Impugned Orders and

also developments which have taken place after the Impugned Orders as

well as during pendency of this Appeal. We are making short reference

chronologically for appreciation.

Developments in short

8. The developments are as under:-

8.1 On 26th February, 2020, Application under Section 9 of IBC filed

by M/s. Gupta Ji Electric Company (Operational Creditor) was admitted

against M/s. Straight Edge Contract Pvt. Ltd. (Annexure A-2 - Page 35).

Present Respondent No.2 was Corporate Debtor in that matter which we

are referring as "earlier matter".

8.2 On 13th March, 2020, the Appeal - Company Appeal (AT) (Ins)

No.388 of 2020 filed in the earlier matter came up before this Tribunal

and the same was disposed by the Order dated 13th March, 2020

(Annexure A-3 - Page 46) and MOU between present Respondent No.2

who was Corporate Debtor in that matter with M/s. Guptaji, the

Operational Creditor in the earlier matter was recorded and the

admission Order dated 26th February, 2020 was set aside and Gupta Ji

withdrew that Application. Liberty was given to Gupta Ji and IRP

(Insolvency Resolution Professional) in that matter to approach this

Appellate Tribunal in case the Corporate Debtor in that matter (present

Company Appeal (AT) (Ins) No.891 of 2020 7

Respondent No.2) commits default in honouring the MOU. Thus at that

point of time, the CIRP had ceased to exist, in CP IB No.1071/2019.

8.3 On 20.07.2020, the present Impugned Order No.1 came to be

passed in IB 2721/ND/2019 in Application filed by M/s. Straight Edge

Contracts Pvt. Ltd. as Operational Creditor against M/s. Three C Shelters

Pvt. Ltd. which we have reproduced above. In the Cause Title, reference

has been made to Section 7 of IBC which was error apparent as the

Order refers to submissions made by Operational Creditor. (This and

other mistakes in Order Adjudicating Authority corrected later on

14.10.2020 vide Annexure R-5 filed by Respondent No.1 with Reply).

8.4 One Sumita Gogoi Hazarika and another filed I.A. No.2970/2020

in IB No.2721/2019 and there was an Order passed on 27.07.2020

(Annexure 3 colly - Reply of R-1 - Diary No.23486). The said Order shows

that, that Application was filed with reference to the present admission

Order dated 20th July, 2020 and had come up before another Bench

which observed and indicated that clarification and detailed Order was

required to be considered as submitted by the Counsel for the Applicant.

The Bench directed to place the matter before Bench which had passed

Order dated 20th July, 2020.

8.5 On 6th August, 2020, the Appellant filed I.A. 3491/2020 in

CP(IB) No.2721/2019. Copy of the Application is at Annexure A-4 - Page

57. It is stated that I.A. filed by Sumita was also similar.

Company Appeal (AT) (Ins) No.891 of 2020 8

8.6 On 17.09.2020, the I.A. No.3491/2020 filed by the Appellant

came to be dismissed as without merits. However, I.A. No.2970/2020

filed by Sumita Gogoi, which is stated to be raising similar grounds was

kept pending and came up before Adjudicating Authority on 23.09.2020,

30th September, 2020 and 7th October, 2020 (See Annexure - 3 colly of

Reply of R-1).

8.7 On 22nd September, 2020, the Appellant filed present Appeal

against both the Impugned Orders mentioned above.

8.8 On 28th September, 2020, the matter of Gupta Ji versus present

Respondent No.2 had again come up before this Appellate Tribunal. Copy

or the Order is at Annexure A-4 (Diary No.22923) of I.A. No.2547/2020

filed by the Appellant. The Order shows that in view of default and the

liberty which had been given, the Operational Creditor in that matter,

namely Gupta Ji Electric Company as well as the IRP had filed I.A.s and

Contempt Case which came up and as the cheque issued had been

dishonoured, the earlier Order of this Tribunal dated 13 th March, 2020

(Annexure A-3) were recalled and Appeal was dismissed and Impugned

Order dated 26th February, 2020 in that earlier matter was restored and

the IRP was directed to proceed with CIRP from the stage it was when

Order in Appeal was passed.

8.9 On 7th October, 2020, the I.A. No.2970/2020 filed by Sumita

Gogoi (see Annexure - 3 colly of Reply of R-1) came to be dismissed.

Company Appeal (AT) (Ins) No.891 of 2020 9

8.10 On 14th October, 2020 (see Annexure R-5 in Reply of R-1), the

Adjudicating Authority passed Orders in I.A. No.3079/2020 in IB

2721/2019 and corrected errors which had occurred in Impugned Order

No.1. The Order passed was as under:-

"IA No.3079 of 2020

IA No.3079 of 2020 is heard and the application is allowed.

By this order the typographical errors of order dated 20.07.2020 are corrected:-

(i) The word "Section 7" is replaced with "Section 9"

in the order dated 20.07.2020.

(ii) Annexure A10 which is an affidavit of admission is replaced with the words "Annexure A" to the affidavit of admission.

(iii) the detailed order/final judgement will be uploaded within next three days."

8.11. On 15th October, 2020, the Impugned Order No.1 and Impugned

Order No.2 came up for consideration before this Appellate Tribunal

when matter had come up for admission and after hearing Counsel for

the Appellant and Respondent No.1, Notice was issued and it was

directed "Meanwhile, till next date of hearing, the Impugned Orders are

stayed".

8.12 On 16th October, 2020, the Adjudicating Authority passed

detailed Order/Judgement (Annexure R-6 - Reply of R-1) recording that

vide Order dated 20th July, 2020, the Petition (2721/2019) was allowed

Company Appeal (AT) (Ins) No.891 of 2020 10

and the Order which was now being passed (on 16.10.2020) shall be read

along with the Order dated 20th July, 2020 and Order dated 14th October,

2020. This Order dated 16th October, 2020 recorded reasons with regard

to the operational debt, default and that Rajeev Baisoya duly authorized

by the Corporate Debtor had filed Affidavit on 5th March, 2020 with e-

mail dated 27th January, 2020 sent by Mr. Girish Joshi, Director of the

Corporate Debtor admitting the dues. Further consequential directions

were also issued with regard to appointment of IRP.

8.13 On 21st October, 2020, Appellant filed I.A. 2547/2019 claiming

that the stay Order dated 15th October, 2020 passed by this Tribunal was

conveyed to the staff of the Adjudicating Authority but still the detailed

Order dated 16th October, 2020 came to be passed and that the Order

dated 16th October, 2020 should be set aside. The I.A. sought action

against IRP also.

Alleged Collusion

9. We have heard Counsel for the parties. Counsel for the Appellant

has made submissions on the above lines and wants the Impugned

Orders to be set aside. The Counsel for Appellant claims that there was

collusion between the two Respondents and thus the admission Order

was bad. The Counsel claimed that Respondent No.2 is not an

Operational Creditor as Respondent No.2 had in the matter of Gupta Ji

taken defence which is contradictory to the claim made in the present

matter as Operational Creditor. Reference is made to the facts of that

Company Appeal (AT) (Ins) No.891 of 2020 11

earlier matter and it is argued that the admission Order dated 26th

February, 2020 in the earlier matter recorded that the amount which was

owed by the Respondent No.2 had been assigned to present Respondent

No.1. It is argued that this shows that present Respondent No.2 -

Operational Creditor was acting only as an intermediary.

10. We have seen the said Order dated 26th February, 2020 and the

defence which was taken by Respondent No.2 in that matter. It has to be

remembered that Respondent No.2 was Corporate Debtor in that matter.

Para - 14 of earlier Order (Annexure A-2) recorded the defence of

Respondent No.2 in earlier matter that it had entered into agreements

with "M/s. Three C Shelters Pvt. Ltd. (present Corporate Debtor) and

M/s. Three C Projects Pvt. Ltd." collectively called "principal employer".

The defence recoded in para - 14(d), in the earlier matter was that the

Corporate Debtor submitted that the debt of the Corporate Debtor had

been assigned to the principal employer of the Corporate Debtor.

The Appellant is banking on such defence recorded in earlier

matter. On such basis, collusion and fraud is alleged. We do not find any

substance in such averments made by the Appellant. Present Application

under Section 9 is undisputedly filed by the Respondent No.2 at a time

when CIRP against the Respondent No.2 had been set aside on

13.03.2020, has to be appreciated on its own facts and documents. The

definition of Financial Creditor in Section 5(7) and definition of

Operational Creditor in Section 5(20) "includes" any person to whom the

Company Appeal (AT) (Ins) No.891 of 2020 12

debt has been legally assigned or transferred. This, however, does not

apply to the definition of Corporate Debtor as found in Section 3(8).

Section 3(8) states that "Corporate Debtor" means a corporate person

who owes a debt to any person. Thus, when the definitions of Financial

Creditor and Operational Creditor are read with the definition of

Corporate Debtor, it is clear that while Financial Creditor and

Operational Creditor can assign their debt, the same is not applicable to

a Corporate Debtor. Thus no such defence can be taken to show

existence of dispute. As such, even if Respondent No.2 had taken defence

in earlier proceeding IB No.1071/2019 (where the Respondent No.2 was a

Corporate Debtor), that it had assigned its debt to principal employer,

that defence would have to be ignored. The claim of the Appellant trying

to build a case of collusion and fraud is thus not appealing to us. Even if

Respondent No.2, a Corporate Debtor had debts to pay of M/s. Guptaji, it

can have debt of its own to recover from Respondent No.1 who is another

Corporate Debtor.

CIRP against Respondent No. 1 maintainable

11. The other averment of the Appellant is that CIRP against

Respondent No.1 alone would not be feasible without joining Orris

Infrastructure Pvt. Ltd., now needs to be looked into. Although the

Appellant claims (see para - 7.4) that there should be group insolvency of

Respondent No.1 along with Orris Infrastructure, when there is no

pending CIRP against Orris Infrastructure, such claim has got no

substance. Orris Infrastructure has itself filed Application seeking

Company Appeal (AT) (Ins) No.891 of 2020 13

intervention pointing out proceedings which have taken place before

Haryana Real Estate Regulatory Authority and High Court with the

prayer that the amounts lying in Escrow Account in view of Orders of the

High Court should be used only for the construction of Greenopolis

Project. The IRP of the Corporate Debtor who has filed Reply (Diary

No.23486) has stated (Reply para - 7.8) that it is denied that the

development of the Greenopolis Project was in joint venture. IRP claims

that there is no document in support. It is the Reply of IRP that Three C

Shelters Pvt. Ltd. is the sole developer of the Greenopolis Project. Thus,

we find that the contentions raised by the Appellant are not supported by

documentary material and as regards the Intervention, Application filed

by Orris Infrastructure, and the prayer made, it would be a matter for the

IRP/RP to look into in the course of CIRP proceedings.

The Order Dated 20.07.2020 read with Order dated 16.10.2020

12. The other contention of the Appellant is that the Impugned Order

is untenable and perverse as it is without reasons. We have also

reproduced Impugned Order No.1 dated 20th July, 2020, which had

errors in it which the Adjudicating Authority corrected vide Order dated

14th October 2020 (annexure R-5 of Reply of R-1) and then subsequently,

detailed Judgements/Orders were passed on 16th October, 2020. As a

matter of fact, the Adjudicating Authority should have avoided passing

Impugned Order No.1, in the manner as it did. It would have been

appropriate and proper that the Order as passed on 16th October, 2020

should have been passed on 20th July, 2020. The Petition which had

Company Appeal (AT) (Ins) No.891 of 2020 14

been moved for initiating CIRP under Section 9 of IBC was allowed on

20th July, 2020 and when the Petition was allowed, provisions of the

Insolvency and Bankruptcy Code got attracted. Provisions require

Adjudicating Authority to pass further consequential Orders like

appointing of IRP, declaration of Moratorium, etc. It is inappropriate for

Adjudicating Authority to pass Orders as it did on 20th July, 2020 and

leave the rest in suspense till further Orders dated 16th October, 2020

were passed. Although the procedures of the Code of Civil Procedure do

not strictly apply under Section 424 of the Companies Act, 2013, still the

principles of natural justice, and other provisions of IBC required that

proper and complete Order (as was done on 16.10.2020) should have

been passed in the first instance itself. We are aware NCLT is

overburdened. Still such procedure to pass Orders, as in the present

matter, should be avoided.

13. The grievance of the Appellant appears to be that it was the

biggest Financial Creditor and instead of acting on its Application, the

Application of Respondent No.2 was admitted. Prayer - d of the Appeal

also indicates that the Appellant also wants CIRP proceedings against the

Respondent No.1 - Corporate Debtor. The IRP of Respondent No.1 has

with Diary No.24141 filed list of Company Petitions which were moved by

stakeholders including home buyers against the present Respondent

No.1 - Corporate Debtor. It is a list of 22 petitions in which it appears

that the Appellant also had filed CP No.1335 of 2019. Sumita Gogoi who

Company Appeal (AT) (Ins) No.891 of 2020 15

filed I.A. 2970/2020 in this matter was another Petitioner with CP

No.503/2019. Intervener - Dhruv Verma in I.A. 2605/2020 also wants

the CIRP to continue. Even if we set aside Impugned Order, there are

others waiting against Respondent No.1 Corporate Debtor. When

Respondent No.2 as Operational Creditor filed Petition/Application under

Section 9 of IBC, the only consideration for Adjudicating Authority was to

examine if there is operational debt due and default. It found the debt

due of Rs.29,95,91,034/- was not disputed and passed Impugned

Order 1 dated 20.07.2020 allowing the Petition. In such matter, after

Petition was allowed, the Adjudicating Authority had no power left to

review the Order dated 20.07.2020, especially so, on vague surmises of

collusion. We do not see any purpose in setting aside on technical

grounds the CIRP initiated. The Order dated 16th October, 2020 vide

which Order the Adjudicating Authority has recorded reasons thus shows

that there was material to show debt due claimed by the Respondent

No.2 - Operational Creditor and default to seek CIRP against Respondent

No.1. If the Application was complete, the same was required to be

admitted.

14. The grievance raised by the Appellant is that the detailed Orders

dated 16th October, 2020 were passed in spite of stay dated 15 th October,

2020. For this, I.A. 2547/2020 is filed which relies on Annexure A-2 to

say that the staff of the Adjudicating Authority was informed. Para - 2 of

I.A. 2547/2020, in this regard, does not disclose the name or particulars

Company Appeal (AT) (Ins) No.891 of 2020 16

of any staff member. There is no reason why the said Order was not put

on record by a proper application, if the Appellant was so interested. We

would thus not find fault with the passing of detailed Order dated 16 th

October, 2020 which was indicated by the Adjudicating Authority in its

Order dated 14th October, 2020 (Annexure R-5). The Adjudicating

Authority cured defect and we do not wish to interfere on technical

grounds, as it will serve no purpose. Record shows that both

Respondents are now under CIRP and we would trust the IRPs/RPs to

follow the law. As such, alleged collusion would be irrelevant, even

otherwise.

The alleged Bar under Section 11 of IBC

15. The other grievance of the Appellant is that on 28th September,

2020, this Tribunal set aside the Order dated 13th March, 2020 in the

matter of Gupta Ji and thus the CIRP against Respondent No.2 had been

restored. The Counsel for Appellant referred to Section 11(a) and (b) to

state that the Respondent No.2 who was itself undergoing CIRP could not

have filed Application in view of bar under Section 11 of IBC. Section 11

of IBC reads as under:-

"11. Persons not entitled to make application.--The following persons shall not be entitled to make an application to initiate corporate insolvency resolution process under this Chapter, namely:-

(a) a corporate debtor undergoing a corporate insolvency resolution process; or

Company Appeal (AT) (Ins) No.891 of 2020 17

(b) a corporate debtor having completed corporate insolvency resolution process twelve months preceding the date of making of the application; or

(c) a corporate debtor or a financial creditor who has violated any of the terms of resolution plan which was approved twelve months before the date of making of an application under this Chapter; or

(d) a corporate debtor in respect of whom a liquidation order has been made.

Explanation.--For the purpose of this section, a corporate debtor includes a corporate applicant in respect of such corporate debtor."

If the Section is perused, the incompetency attached is to

initiation. Specified person is not "entitle" to make an application. Thus,

the bar under Sub-Section (a) is for making an application when the

person who is a Corporate Debtor is undergoing Corporate Insolvency

Resolution Process. Under Sub-Clause (b), the bar is to "making an

application" by the person - Corporate Debtor having completed CIRP

twelve months preceding the date of making of the application. Based on

this, the grievance of the Appellant is that when IB 2721/2019 was filed,

twelve months had not been completed from the date of 13.03.2020 vide

which CIRP in IB 1071/2019 had been set aside. It is argued now when

the earlier CIRP has been restored, sub-clause 'a' is also attracted.

Date of filing of IB 2721/2019 is not pointed out to us. There is

no dispute, however, that it was filed after Orders dated 13.03.2020 in

Appeal, in earlier matter. It appears to us that when the IB 2721/2019

was filed, the CIRP against the Respondent No.2 had already been set

Company Appeal (AT) (Ins) No.891 of 2020 18

aside in view of the Orders of this Tribunal dated 13th March, 2020. Thus

the bar "to making the application" was not there. If subsequently on

28.09.2020, the earlier CIRP has been restored against Respondent No.2,

that would not hit the making of the application which was already

complete and even the Petition was allowed on 20.07.2020. Once the

Application in IB 2721/2019 was allowed on 20th July, 2020, (read with

continuation Order dated 16th October, 2020), management vests with

the IRP/RP and subsequent developments in another matter will not

make difference.

16. Apart from the above, it would be appropriate to refer to the

Insolvency and Bankruptcy Code (Amendment) Act of 2020 (No.1 of 2020

- Published on 13.03.2020) by which Explanation - II has been added in

Section 11 w.e.f. 28.12.2019. The same reads as under:-

"Explanation II.--For the purpose of this section, it is hereby clarified that nothing in this section shall prevent a corporate debtor referred to in clauses (a) to

(d) from initiating corporate insolvency resolution process against another corporate debtor."

Even without relying on this clarificatory Explanation - II, in the

facts of the present matter, we do not find that the Appellant can rely on

Section 11(a) or (b) to find fault with the CIRP which has already been

initiated.

17. The Appeal para - 7.10 refers to Judgement in the matter of "Flat

Buyers Association" (referred supra) of this Tribunal where it was

Company Appeal (AT) (Ins) No.891 of 2020 19

observed that CIRP should be project based as per approved plan by the

competent authority and that if the same real estate company has any

other project, that cannot be clubbed together. We do not think that this

Judgement is helpful to the Appellant in the facts of the present matter.

Order

18. There is no substance in the Appeal. The Appeal is dismissed.

Pending I.A.s and Intervention Applications are disposed.

No orders as to costs.

[Justice A.I.S. Cheema] Member (Judicial)

[V.P. Singh] Member (Technical) rs

Company Appeal (AT) (Ins) No.891 of 2020