Mrs. Shobhana Thakkar vs Monitoring Committee

[Arising out of the Order dated 11.06.2024, passed by the 'Adjudicating Authority' (National Company Law Tribunal, Division Bench, Court No. II, Kolkata), in IA No. 237/KB/2024 in CP (IB) No. 666/KB/2020]

IN THE MATTER OF: 1. Shobhana Thakkar NCD Holder, w/o Niranjan Chotalala Thakkar Aged 76 years. R/ o T-1, 32B, 375, Prince Anwar Shah Road, Jodhpur Park, Kolkata, West Bengal - 700068 niranjanthakkar@gmail.com +91 9331182368 ...Appellant No.1 2. NIRANJAN CHOTALAL THAKKAR NCD Holder, R/ o T-1, 32B, 375, Prince Anwar Shah Road, Jodhpur Park, Kolkata, West Bengal - 700068 EMAIL ID: niranjanthakkar@gmail.com ...Appellant No.2 3. Rasik Thakkar, NCD Holder S / o Mathuradas Thakkar, Aged 82 years, R/o 255/Vinod Kunj, Wadala, Mumbai- 400031 ...Appellant No. 3 4. Bharat Jayantilal Javeri, NCD Holder S/o Jayantilal Javeri, Aged 76 years, R/o 71/ A, Grand Paradi, Dadi Seth Hill, August Kranti Marg, Near Shalimar Hotel, Kemps Corner, Mumbai 400036 ...Appellant No. 4 5. Kamalini Bharat Javeri, NCD Holder W /o Bharat Jayantilal Javeri, Aged 76 years, R/o 71/ A, Grand Paradi, Dadi Seth Hill, August Kranti Marg, Near Shalimar Hotel, Kemps Corner, Mumbai- 400036 ...Appellant No. 5 6. Nina Suresh Javeri, NCD Holder W /o Suresh Javeri, Aged 75 years, R/o 73/ A, Atlas Apartmnent, J.M. Mehta Marg, Opp. Chief Justice House, Walkeshwar, Mumbai-400006, India ...Appellant No. 6 7. Pramod Prakash Singh, NCD Holder, S / o Late Mr. Chandrikaprasad Singh, Aged 65 years, R/o A 905, Dosti Elite, Road No. 29, Sion East, Mumbai 400022

...Appellant No. 7 8. Prashant Jagdish Ashar, S/o Jagdish Ashar, Aged 59 years, R/o 1401-1501, Floor-14th, Anand Smruti, 266, Deodhar Road, Matunga Mumbai 400019 ...Appellant No. 8 9. Sanjeev Ahuja HUF, NCD Holder, Thr. Mr. Sanjeev Ahuja (Karta), S/o Mr. H.K. Ahuja, Aged 55 years, R/o B-231, Saraswati Vihar, Pitampura, New Delhi-110034 ...Appellant No. 9 10. Shiv Saran Mehra NCD Holder, S/o G.S. Mehra Aged 61 years R/o 16-Eastern Avenue, Maharani Bagh, ...Appellant No. 10 New Delhi 110065 Versus

1. Monitoring Committee of Ashiana Landcraft Realty Pvt. Ltd. office at 5F, Everest 46/C, Chowringhee Road, Kolkata - 700071 Email - Sandippandit.ca@gmail.com ..Respondent No. 1 2. IV County Private Limited Resolution Applicant Registered Office at 8th Floor, Plot No. 15, Section - 135, Noida, Nepz Post Office, Gautam Buddha Nagar, Dadri, Uttar Pradesh, India, 201305 EMAIL: Sandippandit.ca@gmail.com ..Respondent No. 2 3. Mr. Jayesh Natvarlal Sanghrajka, Erstwhile Resolution Professional of Ashiana Landcraft Realty Private Limited, C/o Jayesh Sanghrajka & Co. LLP, 405-407, Hind Rajasthan, Building, D.S. Phalke Road, Dadar East, Mumbai - 400014 Email:jayesh.sanghrajka@incorpadvisory.in ..Respondent No. 3

Company Appeal (AT) (Insolvency) No. 2156 of 2024 2 of23 Present: For Appellant : Mr. Vinod Chaurasia & Mr. Prince Sethi, Advocates For Respondent : Mr. Sakal Bhushan, Mr. Vasu Bhushan & Mr. Nipun Bhushan, for R-1 to 3.

JUDGMENT

(Hybrid Mode)

[Per: Justice Mohd. Faiz Alam Khan, Member (Judicial)]

Instant appeal has been preferred under Section 61 read with 60(5) (c)

of the IBC, 2016 against order dated 11.06.2024 passed by the National

Company Law Tribunal, Kolkata arising out of IA No. 237/KB/2024 in CP

(IB) No. 666/(KB)/2020, whereby the IA moved by the appellant has been

dismissed.

2. Necessary facts which are required for disposal of the instant appeal

are that the CIRP of the CD namely, Ashiana Landcraft Realty Pvt. Ltd. was

initiated on 11.01.2022 and one Jayesh Sanghrajka was appointed as the

IRP who was later on confirmed as the RP.

Case of the Appellant

3. The case of the appellant as is evident from the appeal memo is that

the appellant and other investors (in total 188) were financial creditors

(holding Non-Convertible Debentures) (for short 'NCD') of the CD and have

invested in CD under a Portfolio Management Scheme facilitated by Piramal

Funds Management Pvt. Ltd. herein after called Piramal Fund Manager.

4. These NCD were secured with IDBI Trusteeship which was appointed

as trustee for the NCD holders and during the course of CIRP the NCD

holders have informed the RP about their adversarial relationship with

Piramal and IDBI trustee and in this regard an FIR was also lodged against

them by some NCD holders at Economics Offences Investigation Wing, New

Company Appeal (AT) (Insolvency) No. 2156 of 2024 3 of23 Delhi for Commission of fraud and misrepresentation, however the RP

allowed IDBI trustee to represent NCD holders in the CoC throughout the

resolution process and NCD holders were not made aware about the

resolution drawn by the CoC and other proceedings despite they were

financial creditors to the CD.

5. It is further stated that during the course of CIRP some of the NCD

holders have moved IA No. 297/2022 and IA No. 768/2022 pertaining to

their concern about the criminal proceedings initiated against Piramal fund

manager but these applications were rejected by the Adjudicating Authority

on the ground that resolution plan takes care of the NCD holders and PMS

scheme contributes 21.47% of total debt of secured financial creditors and

in proportion of the said debt an amount of Rs. 16,10,87,665/- has been

proposed in the plan to be paid to these NCD holders while the amount of

Rs. 146.92 Crore was admitted as the claim of the NCD holders and also

that the amount of NCD holders was payable to IDBI trustee under the plan

at the behest of NCD holders.

6. It is also contended that on 05.09.2023 Piramal fund manager filed a

criminal writ petition number 2555 of 2023 before Hon'ble High Court of

Delhi for quashing of the FIR filed with Economic Offences Wing by some of

the NCD holders and Counsel for the fund manager pleaded before Hon'ble

High Court of Delhi that they are ready to pay Rs. 80.53 Crores from their

own pocket to the NCD holders, in order to save their goodwill and since the

NCD holders were eligible to receive pay outs as per the resolution plan also,

they are not inclined to provide interest on their initial investment. Hon'ble

High Court of Delhi knowing well that resolution plan is under

Company Appeal (AT) (Insolvency) No. 2156 of 2024 4 of23 implementation separated the NCLT proceedings from Criminal proceedings

vide order dated 05.09.2023 which was amended by subsequent order of

date 20.09.2023 pertaining to the remittance of amount to the NCD holders

through Demand Drafts.

7. It is further stated that the Piramal fund manager did not disclose

before the Hon'ble High Court of Delhi that it has received the funds from

the Resolution Applicant, while they themselves pleaded before the NCLT

that 16.10 Crore is payable to the IDBI Trusteeship and in this way funds

were illegally transferred to the Piramal fund manager who was neither a

financial creditor nor a trustee of the NCD holders and thus the resolution

plan has been violated and the payment is also shown to have been made by

one 'Perfect Megastructure Pvt. Ltd. which is/was not the resolution

applicant. It is also stated that order passed by the Hon'ble High Court of

Delhi was only with regard to the quashing of the Criminal Proceedings and

it has nothing to do with the proceedings pending before the NCLT or the

resolution plan approved by the NCLT, Kolkata.

8. It is also stated that the NCLT has illegally rejected the application

moved by the appellants by passing impugned order of date 11.06.2024 by

concluding that NCD holders have received more than, which was due in the

resolution plan, while the Piramal fund manager was not having any locus

at all. It is further stated that the impugned order is liable to be set aside

and Respondent be directed to release Rs. 16.10 Crore and also allotment of

10 lakh class B shares to 188 NCD holders, which they ought to get under

the plan.

Company Appeal (AT) (Insolvency) No. 2156 of 2024 5 of23

9. Respondent No. 2 who is the SRA has filed reply on behalf of himself

and Respondent Nos. 1 and 3 vis a vis the IA No. 7980 of 2024 moved by the

appellants for condonation of delay and a statement has been made by their

Counsel on the date of final hearing that their reply with regard to IA No.

7980 of 2024 be also considered as their reply vis a vis the appeal.

Respondent No. 2 in his reply has stated that the Adjudicating Authority has

not committed any illegality in rejecting a frivolous application moved by the

applicants as the SRA has already discharged of its liability under the

approved Resolution Plan and the two applicants have already received Rs.

25 lakhs while their entitlement was only of Rs. 5,12,689/- under the plan

and instead of putting a quietus to the dispute they are further propagating

their frivolous cause. It is also contended that the application before the

Tribunal was filed by two applicants but the appeal was initially filed by 66

appellants and it is evident that appellant failed to convince the other

appellants to execute their Power of Attorney in their favour and thus the

other NCD holders did not become part of the appeal.

10. It is also stated that the 188 NCD holders together invested a sum of

Rs. 80.53 Crore under PMS fund managed by one Piramal Fund

Management Pvt. Ltd., in the CD and the total investment of the Applicants

who had moved an application before the Tribunal was Rs. 25 lakhs and

they have already received this amount. It is further contended that under

the resolution plan the PMS fund was only entitled to receive a sum of Rs.

16.10 Crore however, under the settlement they have received Rs. 80.53

Crore.

Company Appeal (AT) (Insolvency) No. 2156 of 2024 6 of23

11. It is also stated that in the proceedings under 482 Code of Criminal

Procedure, a proposal was given by a Piramal Fund Manager before the

Hon'ble High Court of Delhi, and the said proposal was presented by the

Hon'ble Court before the investors with an option that those who would

receive the money under the settlement will be precluded from agitating the

matter any further, anywhere and those who will not accept the proposed

amount would be free to pursue their cause before the NCLT or any other

forum and since all the 188 NCD Holders have received their money which

was originally invested i.e. Rs. 80.53 Crore, the Hon'ble High Court of Delhi

on 05.04.2024 directed that the amount of Rs. 16.10 Crore which was due

under the resolution plan would now be received by the Piramal Fund

Manager. It is also stated that since the NCD holders have received more

than their due under the settlement which has also been acknowledged by

the Hon'ble High Court of Delhi and they are not entitled to receive any

thing under the plan.

12. The intervenor/Piramal Fund Manager in its reply has stated that the

aforementioned 188 NCD holders had invested in the CD about Rs. 80 Crore

however, some differences had arisen between some of the NCD holders and

the fund Manager and a FIR was lodged in this regard by some of the NCD

holders however, the parties resolved their disputes and differences in lieu of

order dated 05.09.2023 passed by the Hon'ble High Court of Delhi and by

virtue of the same order, as amended vide order dated 20.09.2023, the

Piramal Fund Manager had issued demand draft on 18.09.2023 for a sum of

Rs. 25 lakhs in favour of the applicants (who were before the Adjudicating

Authority) and the respective shares of the other NCD Holders and since the

Company Appeal (AT) (Insolvency) No. 2156 of 2024 7 of23 appellant had received more than their due in the resolution plan they

cannot re agitate the same issue again and again.

13. It is further stated that on 05.04.2024, the matter was finally disposed

of by the Hon'ble High Court of Delhi and the same would indicate that all

188 investors/Debenture Holders have settled their dispute and received

their respective share of money, in total Rs. 80.53 Crore therefore, no sums

had remained to be payable by the Piramal Fund Manager and considering

this the Hon'ble High Court of Delhi directed that since the Fund Manager

has disbursed all the amount due to the investors, the money receivable

from the CIRP shall be disbursed to the Piramal Fund Manager and the

matter was closed.

14. It is further stated that an application bearing Crl MA No.

17711/2024 was filed by the appellants before the Hon'ble High Court of

Delhi seeking modification of the order dated 05.04.2024 and to release Rs.

16.10 Crore in their favour and also the shares which were due under the

plan. However, the said application was dismissed by the Hon'ble High

Court of Delhi on 19.07.2024 and the said order was further challenged by

some of the NCD holders by filing a SLP before the Hon'ble Supreme Court

and vide order dated 10.01.2025 passed by the Hon'ble Supreme Court in

SLP No. 47239 of 2024 the same was dismissed and thus the order of

Hon'ble High Court of Delhi became final and in this background the

appellants are now precluded from claiming anything under the resolution

plan.

15. We have heard Ld. Counsel for the parties and perused the record, as

well as written submissions filed by them.

Company Appeal (AT) (Insolvency) No. 2156 of 2024 8 of23

16. Ld. Counsel for the appellant while drawing our attention towards the

written submissions submitted by them submits that appellants and other

NCD holders (in total 188) have been denied their rightful dues i.e. Rs. 16.10

Crore and their proportionate class B shares under the approved resolution

plan dated 11.08.2023. It is submitted that the resolution plan once

approved by the adjudicating authority could not be tempered or changed.

Thus the Respondent No. 2/IV County Pvt. Ltd. i.e. SRA is/was under a

duty to pay the appellants and other NCD Holders their due under the

resolution plan.

17. It is further submitted that the proceedings before the NCLT, Kolkata

and the proceedings lodged by the Piramal Fund Manager before the Hon'ble

High Court of Delhi were distinct and separate proceedings and the money

which has been paid by the Piramal Fund Manager under the settlement

arrived before the Hon'ble High Court of Delhi was to save their skin from

the Criminal prosecution and the said money may never be adjusted with

the money which was due to the appellants under the resolution plan

approved by the Tribunal.

18. It is vehemently submitted that the text and tenor of the orders

passed by the Hon'ble High Court of Delhi on 05.09.2023, 20.09.2023 and

05.04.2024 as well as of date 19.07.2024 passed in modification application

moved by the appellants would clearly reflect that the appellants were held

free to agitate their grievances at a proper forum and thus it is clear that the

money which has been paid by the Piramal Manager under the orders of

Hon'ble Delhi High Court has nothing to do with the money receivable by

the 188 Debenture Holders under the plan. Thus the Tribunal has

Company Appeal (AT) (Insolvency) No. 2156 of 2024 9 of23 committed manifest illegality in rejecting the application moved by the

appellants.

19. Ld. Counsels appearing for the Respondents vehemently opposes the

submissions made by the Ld. Counsels for the appellants on the score that

under the plan only Rs. 16.10 Crore were required to be paid by the SRA to

the NCD holders, while the Piramal Fund Manager in order to set at rest the

disputes between itself and the appellants (NCD holders) had offered a

settlement money of Rs. 80 Crore before the Hon'ble High Court of Delhi

which was floated by the Hon'ble Court to the appellants and other NCD

holders and since the appellant and all the NCD holders have received the

money under the settlement and have also filed their undertakings before

the Hon'ble Administrator appointed by the Hon'ble High Court of Delhi they

cannot claim anything further under the resolution plan. It is further

submitted that the IDBI Trusteeship was representing the NCD holders in

the CoC and in this regard application was also moved before the NCLT for

change of trustee which was rejected by the Ld. Tribunal on the ground that

the procedure prescribed for the removal of the trustee has not been

followed and also on the score that the interest of the NCD holder has been

protected under the plan.

20. It is further submitted that since, the appellants and other NCD

holders have received their money under the settlement approved by the

Hon'ble High Court of Delhi and it is only after the receipt of money by all

the NCD holders, the Hon'ble High Court of Delhi in its order dated

05.04.2024 has directed that since the investors have received all the

amount due, the money which is receivable from the CIRP shall be

Company Appeal (AT) (Insolvency) No. 2156 of 2024 10 of23 disbursed to the Piramal Fund Manager and therefore, the application as

well as the appeal has been filed on frivolous grounds and is liable to be

dismissed.

21. After hearing Ld. Counsels for the parties and having perused the

written submissions filed by them as well as the record, it is reflected that

there are certain facts which are crystal clear on the surface of the record. It

appears admitted to the parties that CIRP of the CD, Ashiana Landcraft

Realty Pvt. Ltd. was initiated vide order dated 11.01.2022 of Ld. Tribunal

and Mr. Jayesh Sanghrajka was appointed as the IRP and who was later on

confirmed as RP. It is also evident that 188 investors, Non-Convertible

Debenture holders, had invested about Rs. 80 Crore in the CD under a

Portfolio Management Scheme facilitated by the Piramal Fund Manager and

these NCD's were secured with IDBI Trusteeship, appointed as a Trustee for

NCD holders.

22. It is also admitted that a total sum of Rs. 80.53 Crore was invested by

the NCD holders in the CD and during the CIRP the claim of Rs. 146.92

Crore was admitted by the RP. However, in the resolution plan submitted by

Resolution Applicant, IDBI Trusteeship, of the PMS was proposed to be paid

only Rs. 16,10,87,665/- (21.47% of the total debt) and 21.48% of the total

pay-out. It is also reflected that in the CoC constituted, IDBI Trusteeship

Services- Piramal Fund Manager were given 13.5% Voting Share. The

Resolution Plan submitted by Respondent No. 2 was approved by the CoC

with a majority vote share of 78.56%. The said Resolution Plan was

approved by the Adjudicating Authority vide order dated 11.08.2023 passed

on an IA No. 921/2022 presented by the RP. In this plan the secured

Company Appeal (AT) (Insolvency) No. 2156 of 2024 11 of23 financial creditors were allotted upfront amount of Rs. 65 Crores on Pro-rata

basis and in addition to the same another 10 Crores were provided, under

the same terms as per their share in the list of creditors and they were

further allotted 10 lakh class B equity shares of Rs. 10 each. The share of

188 Debenture holders represented by the IDBI Trustee and Piramal Fund

Manager was admittedly 21.48% i.e. Rs. 16,10,87,665/- and 2,14,800 class

B shares of Rs. 10 (share value of Rs. 21,48,000/-).

23. It is significantly evident that the plan approval order of the

adjudicating authority dated 11.08.2023 was not challenged by anybody

and thus it has become final. It also appears that two of the appellants

namely, Appellant No. 1/ Shobhana Thakkar and Appellant No. 2/ Niranjan

Chotalal Thakkar had filed an IA No. 297 of 2022 requesting to appoint

authorised representative and to declare the CoC Resolutions as non-est

which was rejected by the Ld. Tribunal vide order dated 11.08.2023.

24. At this stage, we are not giving much significance to the allegations of

the appellants that they were not properly represented before the CoC as it

is an admitted fact that during the CIRP the 188 Debenture Holders were

represented throughout by their authorised representative as provided

under Section 21(6)(A)(a) of the IBC. The Form C was also filed by the

authorised representative i.e. IDBI trustee on behalf of the PMS Fund. In the

same form C authorised representative had given the details of beneficiary

Piramal Fund Management Pvt. Ltd. (Fund Manager of 188 Debenture

Holder). During CIRP the application moved by the two applicants

mentioned herein before was rejected. Another Debenture Holder namely,

Guru P Pejavar had also moved an application bearing IA No. 768/2022

Company Appeal (AT) (Insolvency) No. 2156 of 2024 12 of23 requesting for the same relief for which an application was moved by the

aforesaid applicants. however, his application was also rejected by the Ld.

Tribunal. This matter appears to have not been further taken up in appeal.

One of the reason stated by Ld. Tribunal while rejecting the applications of

some of the NCD holders for change of trustee as said earlier, was that no

document has been placed before the tribunal which may reflect that the

trustee has been removed, which could only be removed under clause 44.2

of the Debenture Trust Deed by giving two months' notice. Thus, we are

satisfied and is also evident from record that Debenture holders were

properly represented in the CoC and since they have not challenged the

approved resolution plan itself the objection raised by them with regard to

their not properly represented before the CoC is not having much weightage

and significance.

25. Coming towards the main objection raised by the appellants with

regard to the fact that they are entitled to receive the money under the

Resolution Plan despite having received money under the settlement order

acknowledged by the Hon'ble High Court of Delhi, it is conspicuously

reflected that in pursuance of an FIR lodged by some of the Debenture

Holders against the Piramal Fund Manager and IDBI trustee on 30.11.2021

a Criminal Writ Petition bearing no. 2555 of 2023 was filed by Piramal Fund

Manager and on 05.09.2023 Hon'ble High Court of Delhi passed an order.

Since the interpretation of this order is being made by both the parties in

their favour it appears necessary for us to reproduce the relevant part of the

said order in verbatim which is placed herein below:

Company Appeal (AT) (Insolvency) No. 2156 of 2024 13 of23 Relevant part of the Order dated 05.09.2023, passed by Hon'ble High

Court of Delhi in Criminal Writ Petition No. 2555 of 2023.

"16. Learned counsel for petitioner submits that the criminal jurisdiction has been resorted to by some investors, including the complainant, in a purely civil dispute. Even though no offence is made out on the face of it, however, as a gesture of good-will and on the asking of this Court, the petitioner without prejudice to his rights and contentions, admission of guilt, liability or wrong-doing by the petitioner and also while denying any liability, contractual, civil, criminal or otherwise, is ready to make the offer, even though in terms of the NCLT Order in the CIRP, only an amount of about Rs.16.10 crores is likely be received against this entire investment.

17. It is further submitted by learned counsel for petitioner that to achieve an end to all proceedings whether already initiated or contemplated, whether contractual, civil, criminal or otherwise, before any Court, authority or tribunal, be it SEBI, Police, or any other agency, subject to such appropriate orders as may be passed by this Court, the petitioner is willing to immediately make one-time voluntary deposit of entire amount of Rs.80.53 crores (principal invested) received from all the 188 investors with the Registry of this Court. The aforesaid amount so deposited, can be distributed to the investors, under the supervision of a retired Hon'ble Judge of the Supreme Court or the High Court, as appointed by this Court, subject to the following:

a. The concerned Investor on furnishing an irrevocable voluntary undertaking, not to initiate and pursue, and if pending to withdraw, any / all civil or criminal proceedings or complaint, before any Court, Authority or Tribunal, be it SEBI, Police, or any other agency, with reference to the investment made in this 'Portfolio Management Services Fund' and invested in the said 'M/s Ashiana Landcraft Realty Pvt. Ltd.;

b. All proceedings in connection with this 'Portfolio Management Services Fund', whether already initiated or contemplated by such investor, whether contractual, civil, criminal or otherwise, before any Court, Authority or Tribunal, be it SEBI, Police or any other agency shall terminate with receipt of respective investment by the investor from such deposit upon furnishing the Undertaking;

Company Appeal (AT) (Insolvency) No. 2156 of 2024 14 of23 c. Upon the fund being disbursed to an investor, the proportionate share of such investor from the CIRP proceeds shall be retained by the Petitioner;

d. If however, any particular investor is not willing for furnishing such voluntary irrevocable Undertaking as stated above-

(i) No payment from the said deposit amount of Rs. 80.53 crores would be disbursed to such investor;

(ii) The respective amount from the deposit made ought to be refunded to the petitioner;

iii) Such investor would be paid only the amount proportionate to his investment, as and when received pursuant to the CIRP of Ashiana;

(iv) All contentions of only such investor as well as of the petitioner would remain open to be adjudicated in appropriate proceedings in accordance with law.

18. Learned counsel for petitioner submits that the petitioner undertakes to extend full cooperation for efficient management of the entire process under the aegis of any retired Judge which may be appointed by this Court. It is further submitted that the petitioner, on facts, is without fault. Consequently, it is prayed that till such time the process of distribution is underway, all authorities, agencies, including the Police and or the regulator be restrained from acting on or taking coercive steps pursuant to complaints relating to the Project.

19. On the other hand, learned counsel for respondent No.2 has disputed the aforesaid facts. However, submits that the investors made the payment in the year 2017 and now 2023 is going on and the respondent No.2 along with 55 complainants, may not take any coercive steps against the petitioner and shall withdraw/get quashed all the proceedings pending before any authority or tribunal, if proportionate amount of the investors is disbursed along with interest @4% per annum for six years; and if the petitioner does not come forward to pay interest, the right of respondent No.2 and other 55 complainants be kept open, who may continue to the proceedings initiated against petitioner.

20. Learned counsel for petitioner, on instructions submits that the amount to be paid in terms of the NCLT Order in the CIRP is Rs.16.10 crores, which has to be proportionately disbursed amongst all 188 investors,

Company Appeal (AT) (Insolvency) No. 2156 of 2024 15 of23 however, petitioner has reputation in the business and market, therefore, he has come forward to pay an amount of Rs.80.53 crores from his own pocket. Therefore, the proposal of respondent No.2 with regard to interest is not acceptable to the petitioner.

21. Be that as it may, since the petitioner has come forward on his own as a good gesture to deposit an amount of Rs.80.53 crores for disbursement of the same in favour of 188 investors, accordingly, the petitioner is directed to deposit the aforesaid sum with the learned Registrar General of this Court within two weeks, as agreed, which shall be invested into Fixed Deposit sweep- in facility.

22. A notice be directed to be issued to all the 188 investors individually as well as by way of publication in two leading daily national newspapers having English and Hindi editions for information.

23. We hereby appoint Mr. Pradeep Nandrajog, Fonner Chief Justice of Rajasthan High Court (Mobile:9818000130), High Court of Bombay and Fonner Judge of this Court as Administrator, who shall disburse the aforesaid amount in favour of the investors who are willing to withdraw their respective claims and legal proceedings as given in Annexure A annexed with Offer of Proposal.

24. The petitioner herein shall pay the fees of learned Administrator as to be decided by him in consultation with the petitioner.

25. The investors who are willing to withdraw their respective amount from the aforesaid Fixed Deposit shall withdraw/get quashed all the proceedings initiated by themselves against the petitioner herein which are pending before any authority.

26. We hereby make it clear that the investors who want to continue with the proceedings against the petitioner herein shall not be disbursed any amount from the aforesaid amount.

27. Since the petitioner is willing and ready to deposit the amount of Rs.80.53 crores within two weeks therefore till further orders all the proceedings (civil, criminal) against the petitioner arising out of present case and pending before any authority, tribunal, including SEBI, shall remain stayed, except pending proceedings before NCLT.

Company Appeal (AT) (Insolvency) No. 2156 of 2024 16 of23

28. It is made clear that the amount deposited before the learned Registrar General of this Court in the form of Fixed Deposit availing sweep-in facility shall be released to investors subject to fulfilment of the aforesaid conditions.

29. The disbursements in aforesaid terms shall be made for a period of 3 months from the date the Hon'ble Administrator assumes the charge.

30. After the conclusion of the tenure the entire remaining unclaimed amount shall be returned to the petitioner.

31. Arguments heard in part.

32. A copy of this order be transmitted to the concerned NCL T Bench for information.

33. For further arguments, renotify on 02.11.2023".

Relevant part of the Order dated 20.09.2023, passed in Criminal Writ

Petition 2555 of 2023 by Hon'ble High Court of Delhi.

"8. Accordingly, in view of the reasons as well as no objection given by the respondents, we hereby modify the Order dated 05.09.2023 to the extent that the petitioner shall deposit a sum of Rs. 80,53,00,000/- (Eighty Crore Fifty-Three Lakhs Only) by way of 188 Demand Drafts made in favour of each 188 investors as per Annexure A-2 to the present petition with the Administrator to enable him to hand over respective Demand Drafts to each 188 investors who are ready to furnish Demand Affidavit-cum- Undertaking as per Annexure A-3 to the present petition. The Administrator shall look into Annexure A-3 and as required may modify the same with consultation of the parties' whosever raise objection therein".

Format of undertaking submitted by Appellants and other investors

before Hon'ble Administrator.

UNDERTAKING

I/We, Shobhana Thakkar having read the Order dated 05.09.2023 modified on 20.09.2023 passed in W.P. (Crl.) 255 of 2023 pa ssed by Hon'ble Justice Suresh Kumar Kait and Hon'ble Justice Neena Bansal Krishna, affirm having understood both the Orders. I have understood the condition contained in the Order dated 05.09.2023 based

Company Appeal (AT) (Insolvency) No. 2156 of 2024 17 of23 where upon I have to exercise my option to receive the principal sum invested by me under the Portfolio Management Services Agreement between me and Piramal Fund Management Private Limited.

I undertake to abide by the condition referred to in the Order dated 05.09.2023 and authorize Mr. Sanjeev Ahuja, Advocate, resident of B-231, Saraswati Vihar Delhi- 110034, to receive the bank drafts in my name.

Self-attested copy of my Adhaar card and PAN card would be delivered by Mr. Sanjeev Ahuja while receiving the bank draft, who would be submitting his signatures attested by the manager of the bank in which he maintains an account".

Relevant part of the Order dated 05.04.2024, passed in Criminal Writ

Petition 2555 of 2023 by Hon'ble High Court of Delhi.

"2. Learned counsel appearing for the respondents, on instructions from Inspector Shekhar Choudhary, who is the Investigating Officer of the case does not dispute this position.

3. It is submitted that money has already been disbursed in terms of order dated 05.09.2023.

4. Since the petitioner has disbursed all the amounts due to investors, the money receivable from the CIPR shall be disbursed to the petitioner.

5.In view of the above, the petition is disposed of.

6. The Registry is directed to handover the original undertaking given by the Investors pursuant to order dated 05.09.2023 to the petitioner. Photocopy of the same shall be retained by the Registry for the sake of record".

Relevant part of the Order dated 19.07.2024, passed by the Hon'ble

Delhi High Court in Crl. W.P. No. 2555 of 2023.

"3. This Court vide order dated 05.09.2023 appointed Mr. Pradeep Nandrajog, Former Chief Justice of Rajasthan High Court (Mobile: 9818000130), High Court of Bombay and Former Judge of this Court as Administrator, to disburse the amount in favour of the investors who were willing to withdraw their respective claims and legal proceedings as given in Annexure A annexed with Offer of Proposal. Accordingly, all 188 investors settled their case

Company Appeal (AT) (Insolvency) No. 2156 of 2024 18 of23 and money in terms of order dated 05.09.2023 was disbursed to them.

4. By way of present application applicants are seeking direction to release Rs.16.10 crores to all the 188 debenture holders proportionally in terms of order dated 11.08.2023 passed by the NCLT, Kolkata Bench.

5. In view of the averments made in the present application, we do not find any ground to clarify the order as the amount disbursed vide order dated 05.09.2023 was qua quashing of the FIR. If the applicants still have any issue, they are at liberty to avail civil remedy before the appropriate forum as per law".

26. The aforesaid orders passed by the Hon'ble High Court of Delhi would

reveal that during the deliberations before the Hon'ble Court of Delhi a

proposal/offer was placed by the Counsel of Petitioner, Piramal Fund

Manager which was directed to be taken on record. It is to recall that this

Criminal Writ Petition was preferred by the Piramal Fund Manager for the

purpose of quashing of the FIR lodged against it and IDBI trusteeship.

Under the settlement proposal which was placed before the Hon'ble High

Court of Delhi it was provided, as is evident from the order of the Hon'ble

High Court of Delhi dated 05.09.2023, that Petitioner- Piramal Fund

Manager is ready to deposit Rs. 80.53 Crore which was the Principal

amount invested by all 188 investors/debenture holders and this money

could be distributed to the investors under the supervision of a Retired

Hon'ble Judge of a High Court or Supreme Court, on the condition that

investor/debenture holder would furnish an irrevocable voluntary

undertaking not to initiate and pursue, and if pending to withdraw any/all

proceedings of any nature with reference to the investment made in Portfolio

Management Services Fund and investment in the CD.

Company Appeal (AT) (Insolvency) No. 2156 of 2024 19 of23

27. The proposal was also with regard to the fact that upon the fund,

disbursed to an investor the proportionate share of such investor from the

CIRP proceeds shall be retained by the Piramal Fund Manager. It was also

made clear, in the settlement/proposal that if a particular investor

(debenture holder), is not willing for furnishing voluntary irrevocable

undertaking he will not get any money under the settlement (from Rs. 80.53

Crore which would be deposited by the Piramal Fund Manager) and share of

such investor would be refunded to the Piramal Fund Manager and such

investor (who is not receiving his share under the settlement) shall receive

only the amount due under the CIRP of the CD and in this regard all

contention of only such investor would remain open to be adjudicated in

appropriate proceedings.

28. The aforesaid proposal was conveyed by the Hon'ble High Court of

Delhi to the Respondents before it pertaining to which certain objections

with regard to the non-payment of interest were made by their Counsel

before the High Court. However, in paragraph no. 21 of the said order the

Hon'ble Court has recorded that since the Petitioner (Piramal Fund

Manager) has come forward on his own as a good gesture to deposit Rs.

80.53 Crore for disbursement to 188 investors, the Piramal Fund Manager

was directed to deposit this money with the Registrar General of the Hon'ble

High Court of Delhi and a notice was issued to all the 188 investors

individually by publication in two leading National Newspapers. Hon'ble

Justice Pradeep Nandrajog, Former Chief Justice of the Rajasthan High

Court was appointed as an administrator to supervise the whole process

and it was specifically held in para no. 25 of the aforesaid order of date

Company Appeal (AT) (Insolvency) No. 2156 of 2024 20 of23 05.09.2023, that investors who are willing to withdraw their respective

amount from the amount deposited by the Piramal Fund Manager shall

withdraw/get quashed all the proceedings initiated by them against the

Piramal Fund Manager. Specific stipulation is made in Paragraph no. 26

pertaining to the fact that investors who want to continue with the

proceedings against the petitioner, (Piramal Fund Manager) shall not be

disbursed any amount from the amount deposited by the Piramal Fund

Manager.

29. A careful perusal of the order of Hon'ble High Court of Delhi dated

05.09.2023 would reveal that the offer/proposal which was made by the

Piramal Fund Manager was taken on record and it was placed before all the

investors/debenture holders with a rider that if they will accept their money

under the settlement/proposal put forth by the Piramal Fund Manager they

will not get anything under the resolution plan and the undertaking which

has been furnished by all the investors/debenture holders in order to

receive their share under the settlement would also reveal that they have

exercised their option to receive the principal sum invested by them under

the Portfolio Management Services agreement and they further undertake to

abide by the conditions referred in the order dated 05.09.2023 of the

Hon'ble High Court of Delhi and have also filed irrevocable written

undertaking to this effect.

30. The intention of the Hon'ble High Court of Delhi would further become

clear by the order dated 05.04.2024 wherein after being satisfied that all the

money under the settlement has been disbursed to all the

investors/debenture holders, the Hon'ble High Court of Delhi in para no. 4

Company Appeal (AT) (Insolvency) No. 2156 of 2024 21 of23 of the said order dated 05.04.2024 has recorded that since the Piramal

Fund Manager has disbursed all the amount due to investors, the money

receivable under the CIRP shall be disbursed to the Petitioner/Piramal Fund

Manager.

31. Thus, it is crystal clear that two options were provided by the Hon'ble

High Court of Delhi to the investors (i) either to receive the amount under

the settlement, commensurate to their share in the settlement money

deposited by the Piramal Fund Manager of Rs. 80.53 Crore or (ii) to pursue

their proceedings under the approved plan and in this condition they will

not receive any money under settlement. While exercising option of receiving

their share of money, such investor was further obliged to file a written

irrevocable undertaking, referred above.

32. It is thus evident that after being satisfied that all the amount which

investors were ought to receive under the settlement has been received by

them, the Hon'ble High Court of Delhi directed on 05.04.2024 that now the

Piramal Fund Manager may receive the money under the approved plan. The

acknowledgment of the appellants with regard to the knowledge of this fact

that they were fully aware that by receiving their portion of money under the

settlement they cannot receive anything further under the resolution plan,

would be more clear by the fact that they had moved an application for

modification of the order dated 05.04.2024 which was incidentally rejected

by the Hon'ble High Court of Delhi and SLP filed against the same was also

dismissed by the Hon'ble Supreme Court.

33. Thus, from the aforesaid factual matrix it is clear that the appellants

were attempting to receive the money due to them, twice i.e. firstly under the

Company Appeal (AT) (Insolvency) No. 2156 of 2024 22 of23 settlement held before the Hon'ble High Court of Delhi and secondly under

the resolution plan also, while after receiving the money under the orders of

the Hon'ble High Court of Delhi under the settlement and by filing an

undertaking they have admitted to forego the amount which they ought to

receive under the resolution plan. This was not permissible as the investors

were clearly given option either to receive money under the settlement and

in this case to submit an undertaking before the Hon'ble Administrator and

not to pursue any proceedings with regard to the money invested by them in

CD or to pursue their case under the resolution plan, but they could not

pursue both and cannot receive money simultaneously under settlement, as

well as under the resolution plan.

34. Thus in our considered opinion, Ld. Tribunal has done nothing wrong

in rejecting the application of the appellants by passing the impugned order

dated 11.06.2024 and the same is hereby confirmed.

35. Resultantly, the appeal preferred by the appellant is devoid of force

and is dismissed as such. There is no order to costs and pending IA's shall

also be closed.

[Justice Mohd. Faiz Alam Khan] Member (Judicial)

[Naresh Salecha] Member (Technical)

New Delhi.

20.08.2025.

sr

Company Appeal (AT) (Insolvency) No. 2156 of 2024 23 of23