Iirf India Realty Xii Ltd vs Srigopal Choudhary

IIRF India Realty XII Ltd. & Anr. ....Appellants Vs.

Mr. Srigopal Choudhary, IRP of Shree Ram Urban ...Respondents Infrastructure Ltd. & Ors. For Appellants: Mr. Abhijeet Sinha, Mr. Shahan Ulla, Mr. Akash Chatterjee, Mr. Nikunj Mahajan, Mr. Varun Kalra, Advocates.

For Respondents: Mr. Gaurav Mitra, Ms. Honey Satpal, Mr. Ishan Roy Chowdhury, Mr. Sunil Singh, Advocates for R1. Mr. Vikram Nankani, Sr. Advocate with Mr. Nikhil Apte, Mr. Parth Sarthy Bose, Mrs. Apoorva Kaushik, Mr. Rahul Kumar, Advocates for R2. Mr. K. Dutta, Sr. Advocate with Mr. Anirban Bhattacharya, Mr. S. Buxy, Ms. P. Vora, Mr. Ativ Patel, Mr. Harshad R Vyas, Mr. Krishna S., Ms. Neha Agarwal, Advocates for R3

WITH Comp. App. (AT) (Ins.) No. 1519 of 2022

In the matter of:

IIRF India Realty XII Ltd. & Anr. ....Appellants Vs.

Srigopal Choudhary, IRP of Shree Ram Urban ...Respondent Infrastructure Ltd. For Appellants: Mr. Abhijeet Sinha, Mr. Shahan Ulla, Mr. Akash Chatterjee, Mr. Nikunj Mahajan, Mr. Varun Kalra, Advocates.

For Respondent: Mr. Gaurav Mitra, Ms. Honey Satpal, Mr. Ishan Roy Chowdhury, Mr. Sunil Singh, Advocates for R1. Mr. Vikram Nankani, Sr. Advocate with Mr. Nikhil Apte, Mr. Parth Sarthy Bose, Mrs. Apoorva Kaushik, Mr. Rahul Kumar, Advocates for R2. 2

WITH

Comp. App. (AT) (Ins.) No. 1520 of 2022

In the matter of:

SREI Equipment Finance Ltd. ....Appellant Vs.

Shree Ram Urban Infrastructure Ltd. & Ors. ...Respondents For Appellant: Mr. K. Dutta, Sr. Advocate with Mr. Anirban Bhattacharya, Mr. S. Buxy, Ms. P. Vora, Mr. Ativ Patel, Mr. Harshad R Vyas, Mr. Krishna S., Ms. Neha Agarwal, Advocates

For Respondents: Mr. Vikram Nankani, Sr. Advocate with Mr. Nikhil Apte, Mr. Parth Sarthy Bose, Mrs. Apoorva Kaushik, Mr. Rahul Kumar, Advocates. Mr. Gaurav Mitra, Ms. Honey Satpal, Mr. Ishan Roy Chowdhury, Mr. Sunil Singh, Advocates for Srigopal Choudhary.

WITH Comp. App. (AT) (Ins.) No. 1521 of 2022

In the matter of:

SREI Equipment Finance Ltd. ....Appellant Vs.

Shree Ram Urban Finance Infrastructure Ltd. & Ors. ...Respondents For Appellant: Mr. K. Dutta, Sr. Advocate with Mr. Anirban Bhattacharya, Mr. S. Buxy, Ms. P. Vora, Mr. Ativ Patel, Mr. Harshad R Vyas, Mr. Krishna S., Ms. Neha Agarwal, Advocates

For Respondents: Mr. Vikram Nankani, Sr. Advocate with Mr. Nikhil Apte, Mr. Parth Sarthy Bose, Mrs. Apoorva Kaushik, Mr. Rahul Kumar, Advocates. Mr. Gaurav Mitra, Ms. Honey Satpal, Mr. Ishan Roy Chowdhury, Mr. Sunil Singh, Advocates for Srigopal Choudhary.

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 3

JUDGMENT

(21 December, 2022) st

Ashok Bhushan, J.

Two orders dated 28.11.2022 (in order sheet) and 05.12.2022 passed

by the Adjudicating Authority (National Company Law Tribunal), Court-1,

Mumbai Bench in C.P.(IB) No. 494(MB)2019 have been challenged by

separate Appeals by 'SREI Equipment Finance Ltd.' and 'IIRF India Realty

XII Ltd.'. All the Appeals have been heard together and are being decided by

this common order.

2. We need to notice only the brief facts of the case which are necessary

for deciding these Appeals.

2.1. C.P.(IB) No. 494(MB)2019 was filed by 'SREI Equipment Finance Ltd.'

(one of the Appellants before us) against the Corporate Debtor- 'Shree Ram

Urban Infrastructure Limited' under Section 7. By an order dated

06.11.2019, the Corporate Insolvency Resolution Process (CIRP) was

initiated against the Corporate Debtor by the Adjudicating Authority and

Srigopal Choudhary, the Respondent No.1 was appointed as Interim

Resolution Professional (IRP) of the Corporate Debtor. On 06.01.2022, the

appointment of Srigopal Choudhary was confirmed as the Resolution

Professional (RP) by the Adjudicating Authority. The Appellants- 'IIRF India

Realty XII Ltd.' as well as 'SREI Equipment Finance Limited' claims to be the

Financial Creditors of the Corporate Debtor. The Respondent- 'Indiabulls

Housing Finance Ltd.' also claims to be the Financial Creditor. The

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 4

Resolution Professional after his appointment took few decisions which were

challenged before the Adjudicating Authority by different parties including

'Indiabulls Housing Finance Ltd.'. The Adjudicating Authority has passed an

order which was challenged in this Appellate Tribunal. The Appeals were

filed by the Resolution Professional against the order of the Adjudicating

Authority being Company Appeal (AT) (Ins.) No. 982 of 2021 with other

connected Appeals in which order was passed by this Tribunal on

17.12.2021 which Appeals are pending consideration. In this group of

Appeals, no issue pertaining to any vote share of any member of the

Committee of Creditors (CoC) is for consideration nor any inter se dispute

regarding different claims to be in the CoC is for consideration before us.

2.2. IA 2621 of 2021 in CP (IB) No. 494(MB)2019 was filed by 'SREI

Equipment Finance Ltd.' seeking replacement of IRP. During pendency of IA

2621 of 2021, IRP was appointed as Resolution Professional (RP) by order

dated 06.01.2022. 'IIRF India Realty XII Ltd.' also filed an Application being

IA No.1304 of 2022 before the Adjudicating Authority seeking removal of RP-

Srigopal Choudhary. IA No. 3537 of 2022 was filed by 'Indiabulls Housing

Finance Ltd.' for removal of the Resolution Professional. 'Indiabulls Housing

Finance Ltd.' has also filed a Company Appeal (AT) (Ins.) No. 1237 of 2022

before this Tribunal challenging the order dated 06.01.2022 of the

Adjudicating Authority confirming Srigopal Choudhary as Resolution

Professional which Appeal was disposed of by this Tribunal on 22.11.2022

with request to the Adjudicating Authority to hear the parties afresh and

pass appropriate orders.

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 5

2.3. On 24.11.2022, IA 2621 of 2021, IA No.1304 of 2022 and IA No. 3537

of 2022 seeking removal of Srigopal Choudhary as Resolution Professional

were heard by the Adjudicating Authority and the matter was reserved for

orders. On 28.11.2022, the Adjudicating Authority by common order passed

in IA 2621 of 2021, IA No.1304 of 2022 and IA No. 3537 of 2022 disposed of

the Applications by removing the Resolution Professional- Srigopal

Choudhary. After pronouncing the order dated 28.11.2022, disposing of the

above three Applications, the Adjudicating Authority directed the counsel

present for three Applicants to decide the name of Resolution Professional

mutually, and submit the same by way of Affidavit/Memo during the course

of the day, failing which the Bench was to appoint suitable Resolution

Professional.

2.4. A Joint Memo on behalf of 'SREI Equipment Finance Ltd.'- Applicant

in IA 2621 of 2021 and 'IIRF India Realty XII Ltd.'- Applicant in IA No.1304

of 2022 was filed praying that one Mr. Avil Jerome Menezes be appointed by

Tribunal as the new Resolution Professional. A written consent in Form AA

by Mr. Avil Jerome Menezes was also submitted along with the Memo. A

Memo was also filed by 'Indiabulls Housing Finance Ltd.' and 'UV Asset

Reconstruction Company Limited' suggesting three names of the Resolution

Professionals, including the name of Mr. Sapan Mohan Garg, the said Memo

was signed by Advocate appearing for 'Indiabulls Housing Finance Ltd.' and

'UV Asset Reconstruction Company Limited' whereas in the heading of the

Memo IA No. 3537/2022 and IA No. 2621/2021 was also mentioned. The

Adjudicating Authority on the same date 28.11.2022 (in order sheet) passed

an order appointing Mr. Sapan Mohan Garg as the Resolution Professional.

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 6

'SREI Equipment Finance Ltd.', after passing of the order dated 28.11.2022

(in order sheet), filed IA No. 3675 of 2022 seeking rectification of the order

dated 28.11.2022 to the extent that it had wrongly recorded that

candidature of Mr. Sapan Mohan Garg has been endorsed by both

'Indiabulls Housing Finance Ltd.' and 'SREI Equipment Finance Ltd.'. It was

further prayed that Mr. Avil Jerome Menezes be appointed as the Resolution

Professional.

2.5. On 05.12.2022, the Adjudicating Authority passed an order in IA No.

3675/2022 partly allowing the Application. The Company Appeal (AT) (Ins.)

No. 1472 of 2022 and Company Appeal (AT) (Ins.) No. 1520 of 2022 have

been filed challenging the order dated 28.11.2022 (in order sheet) whereas

Company Appeal (AT) (Ins.) No. 1519 of 2022 as well as Company Appeal

(AT) (Ins.) No. 1521 of 2022 have been filed challenging the order dated

05.12.2022 passed in I.A No. 3675 of 2022.

3. We have heard Shri Abhijeet Sinha, Learned Counsel appearing for

Appellant in Company Appeal (AT) (Ins.) No. 1472 of 2022 and Company

Appeal (AT) (Ins.) No. 1519 of 2022; Shri Krishnendu Datta, Learned Senior

Counsel has appeared in Company Appeal (AT) (Ins.) No. 1520 of 2022 and

Company Appeal (AT) (Ins.) No. 1521 of 2022; Shri Vikram Nankani,

Learned Senior Counsel appearing for 'Indiabulls Housing Finance Ltd.' and

Shri Gaurav Mitra, Learned Counsel appearing for Srigopal Choudhary.

With the consent of the parties, we proceed to dispose of these Appeals

finally.

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 7

4. Shri Abhijeet Sinha, Learned Counsel appearing for 'IIRF India Realty

XII Ltd.' submits that order passed by the Adjudicating Authority on

28.11.2022 (in order sheet) clearly contemplated Learned Counsel appearing

for the Applicants to mutually decide the name of the Resolution

Professional and submit the same by way of Affidavit/ Memo during the

course of the day, failing which Bench was to appoint suitable Resolution

Professional. It is submitted that a Joint Memo was filed by 'SREI

Equipment Finance Ltd.' and 'IIRF India Realty XII Ltd.' praying that one Mr.

Avil Jerome Menezes be appointed as new Resolution Professional. It is

submitted that a Memo was also filed by 'Indiabulls Housing Finance Ltd.'

praying that Resolution Professional be appointed out of three persons

mentioned in the Memo. The Memo was on behalf of 'Indiabulls Housing

Finance Ltd.' and 'UV Asset Reconstruction Company Limited', although in

the heading of the Application it was wrongly claimed that it was on behalf

of 'SREI Equipment Finance Ltd.'- Applicant in IA No. 2621 of 2021. There

being no mutual name agreed by Applicants, the Adjudicating Authority

committed error in appointing Mr. Sapan Mohan Garg who was requested to

be appointed by 'Indiabulls Housing Finance Ltd.'. It is submitted that the

Adjudicating Authority has incorrectly observed in the order that Applicants

in IA No. 3537 of 2022 and I.A. No. 2621 of 2021 have jointly mentioned the

name which mistake has subsequently corrected by the Adjudicating

Authority itself by order dated 05.12.2022. The Adjudicating Authority

having noticed that there was no consensus in the Applicants, the

Adjudicating Authority ought to have appointed Resolution Professional as

requested by Applicants of IA No. 2621/2021 and IA No. 1304/2022 who

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 8

claim to be having vote share of more than 69%. It is submitted that there

was no occasion for accepting the name recommended by 'Indiabulls

Housing Finance Ltd.'.

5. Shri Krishnendu Datta, Learned Senior Counsel appearing for 'SREI

Equipment Finance Ltd.' also submits that a Joint Memo was filed along

with 'IIRF India Realty XII Ltd.' for appointment of Mr. Avil Jerome Menezes

as Resolution Professional and 'Indiabulls Housing Finance Ltd.' has

wrongly mentioned the number of Application of 'SREI Equipment Finance

Ltd.' by filing a Joint Memo giving a picture that the said Joint Memo giving

three names has consent of 'SREI Equipment Finance Ltd.' whereas 'SREI

Equipment Finance Ltd.' has filed Joint Memo with 'IIRF India Realty XII

Ltd.' recommending Mr. Avil Jerome Menezes. It is submitted that when the

Adjudicating Authority by passing order dated 05.12.2022 accepted that

there was no Joint Memo by 'SREI Equipment Finance Ltd.' and 'Indiabulls

Housing Finance Ltd.', the very foundation of the order appointing Mr.

Sapan Mohan Garg was knocked out and the order ought to have been set

aside. It is submitted that the order appointing Mr. Sapan Mohan Garg

deserves to be set aside.

6. Shri Vikram Nankani, Learned Senior Counsel appearing for

'Indiabulls Housing Finance Ltd.' firstly raise objection to the locus of the

'SREI Equipment Finance Ltd.' to file the Appeal. It is submitted that 'SREI

Equipment Finance Ltd.' itself is in CIRP and the authorized representative

who has filed the Appeal on behalf of 'SREI Equipment Finance Ltd.' is not

competent to file an Appeal. He has referred to para 7.1 of the Company

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 9

Appeal (AT) (Ins.) No. 1520 of 2022 where 'SREI Equipment Finance Ltd.'

itself has been stated that CIRP has commenced against 'SREI Equipment

Finance Ltd.' by order dated 08.10.2021 and one Mr. Rajneesh Sharma was

appointed as Administrator of the Appellant. It is submitted that Appeal filed

by Mr. Pradeep Faujdar, Senior Vice President- Legal is not competent. Shri

Vikram Nankani, Learned Senior Counsel further submits that there was no

error in the order dated 28.11.2022 passed by the Adjudicating Authority

appointing Mr. Sapan Mohan Garg. Mr. Sapan Mohan Garg was the name

which although was included in the memo filed by 'Indiabulls Housing

Finance Ltd.' that itself does not make Mr. Sapan Mohan Garg ineligible for

appointment. It is submitted that there is no error committed by the

Adjudicating Authority in appointing Mr. Sapan Mohan Garg which warrant

interference in this Appeal.

7. Shri Gaurav Mitra, Learned Counsel appearing for Srigopal

Choudhary submitted that he has already filed Appeal against the order

dated 28.11.2022 removing Srigopal Choudhary as Resolution Professional

being Company Appeal (AT) (Ins.) No. 1443 of 2022 where the order is

reserved. It is submitted that this Tribunal may not make any observation in

this regard while deciding these Appeals which shall have any prejudicial

effect on the rights of Srigopal Choudhary.

8. We have considered the submissions of the parties and perused the

record.

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 10

9. We may first notice the objection of Shri Vikram Nankani regarding

locus of 'SREI Equipment Finance Ltd.' to file the Appeal. It is submitted

that 'SREI Equipment Finance Ltd.' itself is in CIRP, hence, the authorized

person who has filed the Appeal i.e. Mr. Pradeep Faujdar, Senior Vice

President- Legal is not competent to maintain the Appeal.

10. Shri Krishnendu Datta, Learned Senior Counsel appearing for 'SREI

Equipment Finance Ltd.' refuting the submission of Counsel appearing for

'Indiabulls Housing Finance Ltd.' submits that Appellant- 'SREI Equipment

Finance Ltd.' has disclosed all relevant facts in the Appeals and Appeals

have been filed by competent person. He has referred to para 7.1 of the

Company Appeal (AT) (Ins.) No. 1520 of 2022. In para 7.1, following

averments have been made:-

"7.1. The Appellant is a Non-Banking Financial Institutions. On an application filed by the Reserve Bank of India, the Appellant was directed to undergo Corporate Insolvency Resolution Process ("CIRP") pursuant to an order dated 08.10.2021 passed by the Ld. Adjudicating Authority, the National Company Law Tribunal, Kolkata Bench in Company Petition No. 294/2021. By the aforesaid Order, Mr. Rajneesh Sharma was appointed as the Administrator of the Appellant. The present Appeal has been filed through Mr. Pradeep Faujdar, Senior Vice-President-Legal of the Appellant, who is duly authorized by the Appellant to file this appeal."

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 11

11. Shri Krishnendu Datta, Learned Senior Counsel further submits that

Shri Pradeep Faujdar has been duly authorized representative of the

Appellant which averment has categorically made in the Appeal. It is

submitted that 'SREI Equipment Finance Ltd.' has filed IA No. 2621/2021 in

C.P. (IB)/ 494(MB)2019 before the Adjudicating Authority where all details

regarding filing of the Applications have been mentioned.

12. We have been noticed the pleadings by 'SREI Equipment Finance Ltd.'

in Company Appeal (AT) (Ins.) No. 1520 of 2022 where it is categorically

pleaded that the administrator Shri Rajneesh Sharma has duly authorized

the Appellant. We do not find any substance in the objection raised by

'Indiabulls Housing Finance Ltd.' regarding locus of the Appellant to file the

Appeal. We, thus, hold that 'SREI Equipment Finance Ltd.' has locus to file

Company Appeal (AT) (Ins.) No. 1520 of 2022 and Company Appeal (AT)

(Ins.) No. 1521 of 2022.

13. As noted above, on 28.11.2022, two orders have been passed by the

Adjudicating Authority. First order was pronounced on 28.11.2022 in IA

2621 of 2021, IA No.1304 of 2022 and IA No. 3537 of 2022 disposing all the

IAs by removing Srigopal Choudhary as Resolution Professional with

immediate effect. After pronouncement of the order, another order was

passed on 28.11.2022 (in order sheet) by the Adjudicating Authority. It is

useful to notice the entire order passed on 28.11.2022:-

"Order pronounced in Open Court and All IA's are allowed. With regard to the name of the RP, Ld.

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 12

Counsel appearing for the Applicants present and are directed to decide the name of RP mutually, and submit the same by way of Affidavit/Memo on record during the course of the day, failing which the Bench shall appoint suitable RP considering the facts of the case.

In compliance to above Order Applicants in IA No. 3537/2022 and IA No. 2621 have jointly mentioned the names of three RPs, which are as follows:

S.No. Name Registration Number 1. Ms. Preeti IBBI/IPA-001/IP-P- Gandhi 02751/2022-2023/14185 2. Mr. Neehal IBBI/IPA-001/IP-P- Mahamulal 01561/2018-2019/12406 Pathan 3. Mr. Sapan IBBI/IPA-002/IP- Mohan Garg N00315/2017-2018/10903

Applicant in IA No. 1304/2022 has mentioned name one Mr. Avil Jerome Menezes,

having Reg. No. IBBI/IPA-001/IP-P00017/2016- 17/10041, in its application itself.

We have noticed that there is no consensus of the applicants on any one name to be appointed as RP. In the circumstances we appoint Mr. Sapan Mohan Garg, having Reg. No. IBBI/IPA-002/IP-

N00315/2017-18/10903 as an RP of Shree Ram Urban Infrastructure Limited in place of Mr. Srigopal Choudhary who is directed to be discontinued with immediate effect."

14. Two significant steps were taken on 28.11.2022 by the Applicants. On

28.11.2022, a Joint Memo was filed by 'SREI Equipment Finance Ltd.' and

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 13

'IIRF India Realty XII Ltd.'. The Joint Memo is on the record of Company

Appeal (AT) (Ins.) No. 1472 of 2022 as Annexure A-4 which is to the

following effect:-

"Joint Memorandum on behalf of SREI Equipment Finance Ltd. and IIRF India Realty XII Limited proposing the name of new Resolution Professional

1. This Hon'ble Tribunal vide order dated 28 th

November 2022 has allowed Interlocutory Application No. 2621 of 2021 filed by SREI Equipment Finance Limited and Interlocutory Application No. 1304 of 2022 filed by IIRP Realty XII Ltd., thereby removing Mr. Srigopal Choudhary as the Resolution Professional of the Corporate Debtor.

2. It has further been directed by this Hon'ble Tribunal on 28th November 2022, that the parties to file a joint memorandum suggesting the name of the new Resolution Professional to replace Mr. Srigopal Choudhary in the present case.

3. IIRF Realty XII Limited and SREI Equipment Finance Limited are filing the present memo to jointly propose the name of Mr. Avil Jerome Menezes to be appointed as the new Resolution Professional of the Corporate Debtor in the present case by this Hon'ble Tribunal.

4. The name of Mr. Avil Jerome Menezes has already been proposed by IIRF India Realty XII Ltd. in I.A. No. 1304 of 2022.

5. Mr. Avil Jerome Menezes on 4th May 2022 has furnished his written consent to IIRF India Realty XII Ltd. to act as the Resolution Professional of the Corporate Debtor. Further, Mr. Avil Jerome Menezes as on 28 Novemberth

2022 has also furnished his written consent to SREI Equipment and Finance Limited to act as the Resolution Professional of the Corporate Debtor. Copies of the written consents of Mr. Avil Jerome Menezes are annexed herewith and marked as Annexure A-1 and A-2, respectively.

6. Considering the above it is humbly prayed that Mr. Avil Jerome Menezes be appointed by this

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 14

Hon'ble Tribunal as the new Resolution Professional of the Corporate Debtor."

15. Along with the Joint Memo, written consent of Mr. Avil Jerome

Menezes was also filed in Form- AA. On the same date, another Memo was

filed by 'Indiabulls Housing Finance Ltd.' and 'UV Asset Reconstruction

Company Limited' which is Annexure A-6. It is useful to extract the entire

Memo as follows:-

"Memo filed by IHFL/ UVARCL with name suggestion for appointment of new Resolution Professional in terms of order dated 28.11.2022

1. IA 3537/2022 & IA 2621/2021 had been filed by the parties for inter, alia, replacement of the Resolution Professional of Shree Ram Urban Infrastructure Ltd. The said IAs were heard at length by this Hon'ble Tribunal on 24.11.2022 and order were reserved in the matter.

2. When the matter was taken up for pronouncement of judgment on 28.11.2022, the Hon'ble Tribunal indicated that it had allowed the applications for replacement of the RP. However, since no RP had been suggested in the applications, it was orally directed that a Memo be filed suggesting a suitable person to be applied as the RP. This Memo is being filed in terms of the aforesaid direction.

3. Whereas there is no consensus between the Financial Creditors on a proposed resolution Professional, we are suggesting three names. It is humbly prayed that this Hon'ble Tribunal may be pleased to appoint either of the three persons mentioned below as the Resolution Professional :

(i) Ms. Preeti Gandhi, (ii) Ms. Neehal Mahamulal Pathan, or (iii) Mr. Sapan Mohan Garg as the RP of the Corporate Debtor and Mr. Sri Gopal Chaudhary be relieved of his duties. The details of Ms. Preeti Gandhi (mobile no. 9582977899) or Mr. Neehal Mahamulal Pathan (mobile no.

9822043344) and Mr. Sapan Mohan Garg (mobile

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 15

no. 9810502994), as available from the IBBI website, are as under:

Name of the IP Preeti Gandhi

Registration no IBBI/IPA-001/IP-P-02751/2022-2023/14185 Date of Registration 19-Sep-22 Member of IPA Indian Institute of Insolvency Professionals of ICAI Member of IPE Member of IPA Since 18-Aug-22 Email id preitygandhi@gmail.com Address 11A, Gh-1, Gurgaon One Apartments, Old

Delhi Gurgaon Road, Sector 22, Opposite Hyatt Place, Gurgaon, Haryana, 122015 Have Valid AFA Yes

Name of the IP Ms. Neehal Mahamulal Pathan Registration no IBBI/IPA-001/IP-P-01561/2018-2019/12406 Date of Registration 27-Feb-19 Member of IPA Indian Institute of Insolvency Professionals of ICAI Member of IPE Member of IPA Since 16-Jan-19 Email id Ca.neehal@gmail.com Address RS No. 825, Plot No. 27, Sahjeevan Parisar, Karande Mala, Near TPM CHURCH BEHIND CIRCUIT HOUSE KOLHAPU Kolhapur, Maharashtra 416003 Have Valid AFA Yes

Name of the IP Mr. Sapan Mohan Garg Registration no IBBI/IPA-002/IP-N00315/2017-2018/10903 Date of Registration 14-Aug-17 Member of IPA ICSI Institute of Insolvency Professionals Member of IPE Email id sapan10@yahoo.com Address D-54, First Floor Defence Colony, New Delhi, National Capital Territory of Delhi, 110024 Have Valid AFA Yes AFA Certificate No. AA2/10903/02/060123/201895

4. It is humbly prayed accordingly."

16. Joint Memo was filed by 'SREI Equipment Finance Ltd.' and 'IIRF

India Realty XII Ltd.' praying for appointment of Mr. Avil Jerome Menezes

whereas Memo which was filed by 'Indiabulls Housing Finance Ltd.' and 'UV

Asset Reconstruction Company Limited' was not the Joint Memo by the

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 16

Applicants-- IA No. 2621 of 2021 and IA No. 3537 of 2022 which is

apparent from the reading of IA.

17. By subsequent order dated 05.12.2022, the Adjudicating Authority

itself has allowed the Application filed by 'SREI Equipment Finance Ltd.'

where the words "Applicants" and "jointly" with regard to Memo filed by

'Indiabulls Housing Finance Ltd.' has been deleted. The order dated

05.12.2022 passed by the Adjudicating Authority, thus, makes it clear that

there is no Joint Memo filed by 'SREI Equipment Finance Ltd.' and

'Indiabulls Housing Finance Ltd.' suggesting three names including the

name of Mr. Sapan Mohan Garg. When we look into the order dated

28.11.2022 (in order sheet), it is clear that the Adjudicating Authority has

noted that Applicants in IA No. 2621 of 2021 and IA No. 3537 of 2022 has

jointly mentioned the names of three Resolution Professional whereas the

fact of the matter is that three names were only mentioned in the Memo filed

by 'Indiabulls Housing Finance Ltd.' i.e. Applicant in IA No. 3537 of 2022.

The Adjudicating Authority was also clear that there is no consensus of the

Applicants on any one name to be appointed as Resolution Professional.

When we look into the order dated 28.11.2022 (in order sheet), the order

begins with the words "Order pronounced in Open Court and All IA's are

allowed. With regard to the name of the RP, Ld. Counsel appearing for the

Applicants present and are directed to decide the name of RP mutually, and

submit the same by way of Affidavit/ Memo on record during the course of

the day, failing which the Bench shall appoint suitable RP considering

the facts of the case."

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 17

18. The above order emphasizes two things, firstly Counsel for the

Applicants to decide the name of Resolution Professional mutually and

further failing which the Bench shall appoint suitable Resolution

Professional considering the facts of the case. Facts as noted above makes it

clear that there was no consensus in the name of the Resolution

Professional and it was open for the Adjudicating Authority to appoint any

Resolution Professional. However, there being no consensus between the

parties, Memo filed by 'Indiabulls Housing Finance Ltd.' could not have been

taken notice or Resolution Professional appointed on the basis of said

Memo. Out of three Applicants, two Applicants had filed Joint Memo

namely-- 'SREI Equipment Finance Ltd.' and 'IIRF India Realty XII Ltd.'

recommending the name of Mr. Avil Jerome Menezes. Why the Adjudicating

Authority did not choose the name suggested by two Applicants and

accepted the name suggested by one Applicant- 'Indiabulls Housing Finance

Ltd.' has not been dealt with the order. When the clear intent of the order

dated 28.11.2022, as noticed above, is that unless the Applicants mutually

agree on any name of the Resolution Professional, Resolution Professional

will be appointed by the Adjudicating Authority, and it was clear that there

was no consensus with regard to the name of the Resolution Professional

between three Applicants, the Adjudicating Authority ought to have

appointed Resolution Professional on its own without referring to or relying

to any prayer made by the Applicant- 'Indiabulls Housing Finance Ltd.'.

19. Further in the order dated 05.12.2022 which was subsequently

passed on IA 3675/2022 filed by 'SREI Equipment Finance Ltd.' it was

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 18

accepted by the Adjudicating Authority that Joint Memo was not filed by

Applicants- IA No. 3537/2022 and IA No. 2621 of 2021 and the Adjudicating

Authority had allowed prayer (a) to the effect that words "Applicants" and

"Jointly" referred to para 1 of the order are deleted. In view of the order

dated 05.12.2022 the very basis of the order passed on 28.11.2022 by

accepting the name of Mr. Sapan Mohan Garg as jointly recommended was

knocked out.

20. We, thus, are satisfied that the Adjudicating Authority committed

error in appointing Mr. Sapan Mohan Garg as Resolution Professional whose

name was submitted by Memo filed by 'Indiabulls Housing Finance Ltd.'.

The order dated 28.11.2022 (in order sheet) insofar as it appoints Mr. Sapan

Mohan Garg as Resolution Professional is set aside and the Adjudicating

Authority is directed to pass an order appointing any Resolution

Professional from the eligible Resolution Professional as it deem fit and

proper.

21. We may notice one more aspect of the matter. The order of the Hon'ble

Supreme Court passed on 12.12.2022 in Civil Appeal No. 9062/2022 has

been perused by us. The Hon'ble Supreme Court has referred to order

passed in Civil Appeal No. 7050/2022 which order dated 14.11.2022 is to

the following effect:-

"C.A. No. 7050/2022

Learned senior counsel for the appellant, on instructions states that the appellant is willing to bring in the money in terms of the arbitral

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 19

award, approximately Rs. 75.30 crores in the corporate creditors' account and the Resolution Professional will execute the sale deed on the said amount being so deposited. He submits on instructions that the amount will be deposited within 10 days.

On the aforesaid statement taken on record, learned counsel for respondent No.1 who is the appellant before the NCLAT submits that if the amount is brought in, the sale deed can be executed by the Resolution Professional and the appeal filed by the respondent No.1 before the NCLAT would stand withdrawn.

In view of the aforesaid, we direct as under:

1) The amount be deposited within a period of 10 days stipulated, as aforesaid;

2) On the amount being deposited, the Company Appeal (AT) (Ins.) No.880/2021 before the NCLAT, filed by respondent No.1 shall stand dismissed as withdrawn;

3) The Resolution Professional shall execute the sale deed in favour of the appellant within a period of 10 days of the deposit of the amount;

4) In view of the aforesaid agreement arrived at, no impediment should be created to the execution of the same. The appeal stands disposed of in terms aforesaid."

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 20

22. The order passed by the Hon'ble Supreme Court dated 14.11.2022

has to be given effect by the Resolution Professional on deposit of the

amount, the Resolution Professional to execute the sale deed in favour of

'Kalpataru Properties Pvt. Ltd.' (Appellant therein) within 10 days. The

earlier Resolution Professional Srigopal Choudhary having been removed by

the Adjudicating Authority on 28.11.2022 against which order there is no

interim order continuing Srigopal Choudhary and Mr. Sapan Mohan Garg

new Resolution Professional appointed by the Adjudicating Authority, having

been set aside by us, a Resolution Professional needs to be in place to carry

out the order of the Hon'ble Supreme Court dated 14.11.2022. We, thus,

direct the Adjudicating Authority to pass an order appointing a Resolution

Professional within one week from the date copy of this order is produced.

Learned Counsel for the Appellant is directed to produce copy of this order

within three days from today to enable the Adjudicating Authority to fix a

date for passing an appropriate order. We may further notice that the order

passed by the Hon'ble Supreme Court dated 14.11.2022 passed in Civil

Appeal No. 7050/2022 has not been placed by any of the parties to the

Appeal in the record of Company Appeal (AT) (Ins.) No. 1472 of 2022 and we

have taken out the reference of order from the order of the Hon'ble Supreme

Court dated 09.12.2022 passed in Miscellaneous Application No. 2064 of

2022 in CA No. 7050/2022 which was sent by email dated 14.12.2022 by

the Branch Officer (Section XVII) of the Supreme Court of India to Registrar

NCLAT .

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022 21

23. In view of the foregoing discussion, the Appeals are decided by

following directions:-

(i) The Appeal No. 1472 of 2022 and Appeal No. 1520 of 2022 are

partly allowed. The Order dated 28.11.2022 (in the order sheet)

passed in IA No. 2621/2021, IA No. 1304/2022 and IA No.

3537/2022 insofar as it appoints Mr. Sapan Mohan Garg as

Resolution Professional is set aside.

(ii) The Adjudicating Authority is directed to pass an order within

one week from the date copy of this order is produced before the

Adjudicating Authority appointing Resolution Professional in

continuation of the order dated 28.11.2022 (in order sheet) without

reference of the names of the Resolution Professional submitted by

Applicants.

(iii) The Appeal Nos. 1519 of 2022 and 1521 of 2022 are disposed of

accordingly.

(iv) This order shall be without any prejudice to rights and

contention of Srigopal Choudhary.

The parties shall bear their own cost.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

[Barun Mitra] Member (Technical)

Anjali/nn

Comp. App. (AT) (Ins.) No. 1472, 1519, 1520 & 1521 of 2022