In the matter of Sarga Hotel Private Limited

IntheNational Company LawTribunal Kolkata Bench, (Court-II),Kolkata IA(IB)No. 1378/(KB)/2023 InCP(IB)No. 302/(KB)/2021 AnApplicationunder Section 60(5)of Insolvency and BankruptcyCode,2016; IntheMatter of: SargaHotel PrivateLimited ….Corporate Debtor And Inthematter of: Rare Asset Reconstruction Limited, having its Registered office at 104-106, Gala Argos, Near Harikrupa Tower, Ellisbridge Gymkhana, Gujarat Collage Road, Ahmedabad, Gujrat –380006. …..Applicant Vs 1. Avishek Gupta, Resolution Professional of Sarga Hotel Private Limited and Applicant in IA No. 1054/KB/2023 having his address at CK 104, Sector 2, SaltLake, Kolkata –700091and havingemail id: cirp.sargahotel@gmail.com 2. Committee of Creditors of Sarga Hotel Private Limited, service through J.C. Flowers Asset Reconstruction Private Limited having its address at 12th Floor, Crompton Greaves House, Dr. Annie Besant Road, Worli, Mumbai – 400 030 and email id: teamjcarc@jcfarc.com and saptarshi.saha@augustuslaw.com …..Respondents DateofHearing: 06.11.2023 DateofPronouncement of order: 24.11.2023 Coram: Smt Bidisha Banerjee : Member (Judicial) ShriArvind Devanathan : Member (Technical)

IA(IB)No. 1378/(KB)/2023 InCP(IB)No. 302/(KB)/2021 Counselappeared physically / through video Conferencing Appearance(via video conferencing/physically) Mr. Swatarup Banerjee, Adv. ]For Rare Asset Mr. Rahul Auddy, Adv. Mr. A. Gootu, Adv. Mr. RamjiSrinivasan, Sr.Adv. ]For ResolutionProfessional Ms.Manju Bhuteria, Adv. Mr. S.Dasgupta, Adv. Ms.A. Barman, Adv. Ms.P.Mahajan, Adv. Ms.M. Singh, Adv. Ms.S.Pandey, Adv. Ms.S.Mahalwar, Adv.

Mr. Abhinav Vasisht, Sr. Adv. ]In IA 1378of2023& IA 1271of 2022 Mr. Arindam (Mrinal) Pal, Adv. forJ.C. Flowers ARC inCoC

Mr. Abhishek Swaroop, Adv. ]for ProformaRespondent inIA 1851of2023 Mr. Dwaipayan Basu Mallick, Adv. /National Asset Reconstruction Company Ltd. Mr. Anupm Prakash, Adv. Mr. Vasu Manchanda, Adv. Ms.Kirti Talreja, Adv.

Mr. Dripto Majumdar, Adv. ]For Applicant in IA 1866of2023 Mr. N. Shukla, Adv.

Mr. Joy Saha, Sr. Adv. ]For theSRA Mr. Ratnanko Banerji, Sr.Adv. Mr. K. Kejriwal, Adv. Mr. A. Chatterjee, Adv. Ms.S.Dalmia, Adv. Mr. D.N. Sharma, Adv.

IA(IB)No. 1378/(KB)/2023 InCP(IB)No. 302/(KB)/2021 Ms.B. Gayatri, Adv. ]For theApplicant in IA 642of2023 Mr. A. L. Kamle, Adv.

Mr. A. Swaroop, Adv. ]For R-3 in IA 1851of 2023 Mr. D. B. Mallick, Adv. Mr. A. Prarash, Adv. Ms.T. Luhariwala, Adv. Mr. V. Manchanda, Adv. Mr. K. Tajuja, Adv. Sk.Md. WasimAkram, Adv.

Ms.Mini Agarwal, Adv. ]For RishimaSAin IA 1271of2022

Mr. S.Mitra, Adv. ]For SIDCL Mr. S.Jain, Adv.

ORDER Per Bidisha Banerjee, Member (Judicial): 1. Heard theLd. Sr. Counsel/Counsel fortheparties. 2. This application has been filed by Rare Asset Reconstruction limited to seek the following reliefs:- a) Permit the Applicant to submit a Resolution Plan for an amount of Rs. 425 Crores; b) Stayin the hearing ofIA(IBC) 1054/KB/2023 and further actions under CIRP, if any, unless this instant Application is adjudicated and final orders are passed bythe Adjudicating Authority; c) Stayonthe CIRP untiladjudication and disposal ofthis instantapplication; 3. At the outset it would be useful to quote the list of dates furnished by the said Applicant at page 4as extracted hereunder forclarity: “Date Particulars 11thFebruary, 2022 Commencement ofCIRP 28thApril, 2022 Form Gpublished byRP 18thofMay, 2022 EIO submitted bythe Applicant

IA(IB)No. 1378/(KB)/2023 InCP(IB)No. 302/(KB)/2021 24thand 26thMay, 2022 Clarifications on the EOI was sought by the RP and the same was provided by theApplicant 28thMay, 2022 Provisional List of PRAs were published by the RP which included the nameoftheApplicant 10thJune,2022 Information Memorandum and Virtual Data Room “VDR” Access was provided by the RP to all the PRAs includingtheApplicant herein. 22ndJune,2022 RFRP was issued by the RP to all the PRAs 20thand 21stJuly, 2022 Emails exchanged between the Applicant and RPabout theBG issue July, 2022 IA 822/2022 filed by Rare Asset (Applicant) 24thMay, 2023 14th CoC meeting in which one ResolutionPlanwas approved byCoC

4. By way of pleadings as well as oral submissions, Ld. Counsel for the Applicant has submitted that a Resolution Plan has already been approved by the CoC on 24.05.2023. An approval of the said Plan is sought for from this Adjudicating Authority videIA (IBC)/1054/KB/2023 and thesame is pendingadjudication. 5. TheApplicant has emphatically admitted byway ofpleadings the following: 5.1“The Applicant states that it is evident that it was YES Bank at whose behest, the RP removed the Applicant without any reason from the COC. The grounds of removal were baseless, meritless and it was basically "taking a holistic view". There was no proper and / or legal basis for not to include the Applicant as CoC member. It is clear that Yes Bank and RP were acting in a manner which was intentionally biased and prejudicial against the interest of Applicant. The COC did not even want to recognize the Rs. 393 crores claim of the Applicant (earlier

IA(IB)No. 1378/(KB)/2023 InCP(IB)No. 302/(KB)/2021 admitted by the RP) and accordingly at a later date filed an application IA 1377/2022. In such a situation where Yes Bank was interested to act in a manner which is totally prejudicial against the Applicant, the Applicant parking another INR 5 crores in the form of BG with Yes Bank was definitely not commercially prudent. Hence, the request for changing the beneficiary was made. However since the RP expressed his inability to change the beneficiary bank, the Applicant did not proceed with thesubmission oftheplan.” 5.2“From the records of the proceedings and the cause-list, the Applicant understands that one resolution plan has been approved by the COC and the same is pending approval before this Hon'ble Tribunal.” 5.3“The Applicant states that though it did not submit its plan, the Applicant is ready and willing to submit its plan at the present date and for the same the Applicant is ready to submit a plan which value is approx. Rs. 425 crores. The Applicant further states that all Financial Creditors including Yes Bank shall have a very good recovery in the Resolution plan that will be submitted bytheApplicant.” 6. It is discernable that the Plan approval application is pending for orders before this Tribunal. During pendency of the said application, the present IA has been preferred. 7. The Applicant expects that the RP and the CoC should consider its proposed Plan of Rs. 425 Crores and in fact, it claims that the proposed figure is more than approved Plan value. It expects that its Plan should be permitted to be approved keeping in viewmaximization of valuefor all Stakeholders. 8. The Applicant has also claimed that the Applicant has also preferred one IA (IBC) 822/KB/2022 for its inclusion in the CoC and ifthe same is allowed, the Applicant would have got 51% voting right in the CoC. However, from the records it is evident that IA (IBC) 822/KB/2022 already stands dismissed by this Adjudicating Authority on13.09.2023.

IA(IB)No. 1378/(KB)/2023 InCP(IB)No. 302/(KB)/2021 9. It is brought to our notice that an Appeal has been preferred before the Hon’ble NCLAT against the said order dated 13.09.2023. The Operative portion of the order passed in IA (IBC) 822/KB/2022 is thefollowing: “As per the above order, the Corporate Debtor was established as a wholly owned subsidiary of the said Shristi Infrastructure Development Corporation, which is in turn promoted and owned by the Kanodia family of Kolkata. This fact is also borne out by the press clipping given in the media section of the company’s own web site and as such the family is a de-facto promotor of the Corporate Debtor. Since the SREI group also promoted by the Kanodia family is holding 85 % of the Security receipts for the loan given by the applicant to the Corporate debtor, the family connection is quite obvious and the said stipulations of Section 5(24) squarely find their applicability in the present case. As such we have no hesitation in upholding the decision of the RP to oust the RARE ARC, the applicantin this IA, fromthe Committee of Creditors being a related party of the Corporate Debtor, which is by virtue of section 21(2) is proscribed for their inclusion in the Committee of Creditors.

IA(IB) No. 822/(KB)/2022 therefore failsandis disposed ofaccordingly.” 10.J.C. Flower ARC in IA (IBC)1377/KB/2022 has sought for direction upon the RP toreject theclaim filed byRARE ARC.The IA (IBC)1377/KB/2022 was disposed ofhaving held as under: “(8)(viii). Further the applicant has also relied on the averments in the Avoidance IAs (supra) by the Administrator, the applicant contends that since the Administrator has to make a determination and form an opinion in terms of Regulation 35A of the code in regard to the Avoidance & fraudulent transactions, before filing the application with this Adjudicating Authority, and the very fact that the applications have been filed by the Administrator as being fraudulent, these pass the muster of “ Collusive transactions” and therefore in line with Phoenix judgment, the respondent no.2should notbe recognised by theRP as aFinancial Creditor. (8)(ix). In view of the foregoing, we are inclined to hold that no clear case has been made out either by the applicant or not even by the RP that the assignment to RARE ARC by SIFL/SEFL is collusive in nature so that the judgement of the Hon’ble Supreme Court (supra) can find its application

IA(IB)No. 1378/(KB)/2023 InCP(IB)No. 302/(KB)/2021 in the instant case. As such we are not passing any directions on the RP as prayed at prayer no.(a) of this IA. (8)(x). We however make it clear that we are by no means commenting on the merits of two IAs (supra), which are pending adjudication before Court no.1ofthis Adjudicating Authority. 11.In view of such, wefind that theclaim ofthe Applicant to allowit to submit a plan of Rs. 425 Crores long after the expiry of maximum time limit of 330 days (which expired on 07.01.2023). Coupled with dismissal of IA (IBC)822/KB/2022 and disposal of IA (IBC)1377/KB/2022, in the manner enumerated supra, no case has been made out by the Applicant which merits interference by this Tribunal at this stage, when aResolution Plan is already upfor approval. 12.Therefore, thisIA (IBC)1378/KB/2023 standsrejected. 13.The Registry is directed to send e-mail copies of the order forthwith to all the parties inclusiveof theCounsels onRecord. 14.Urgent certified copy of this order, if applied for, be issued upon compliance with all requisiteformalities.

ArvindDevanathan Bidisha Banerjee, Member(Technical) Member (Judicial)

Signed onthisthe 24thday ofNovember, 2023

M.Jana,PS