Rishi Kapoor vs Anand Sobhadra

Comp. App. (AT) (Ins) No. 1491 of 2022 & I.A. No. 4716, 4718, 4720 of 2022 IN THE MATTER OF: Rishi Kapoor ...Appellant

Versus

Anand Sonbhadra Resolution Professional of ...Respondents Shubhkamna Buildtech Pvt. Ltd.

Present: For Appellant : Mr. Arvind Nayar, Sr. Adv. with Diksha Dadu, Sumeet Kapoor, Shubham Pandey, Adv. For Respondent : Mr. Abhishek Anand, Nipun Gautam, Karan Kohli, Adv. for RP

With Comp. App. (AT) (Ins) No. 1490 of 2022 & I.A. No. 4709, 4714, 4715 of 2022 IN THE MATTER OF: Rishi Kapoor ...Appellant

Versus

Anand Sonbhadra ...Respondents

Present: For Appellant : Mr. Arvind Nayar, Sr. Adv. with Diksha Dadu, Sumeet Kapoor, Shubham Pandey, Adv. For Respondent : Mr. Abhishek Anand, Nipun Gautam, Karan Kohli, Adv. for RP/Monitoring Professional

ORDER

(Virtual Mode)

Per: Justice Rakesh Kumar Jain: (Oral)

19.09.2025: This order shall dispose of two appeals bearing CA (AT) (Ins)

No. 1491 of 2022 (herein after referred to as the first appeal) which has arisen

from the dismissal of the application bearing I.A No. 4514 of 2021 filed in CP 2

(IB) No. 1059(ND) of 2018 and CA (AT) (Ins) No. 1490 of 2022 is against the

order dated 12.09.2022 by which I.A No. 1496 of 2020 filed by the Appellant

has been dismissed.

2. The brief facts of this case are that M/s Shubhkamna Buildtech Pvt.

Ltd. (CD) was pushed into CIRP vide order dated 26.11.2018 on an application

filed under Section 9 of the Code bearing CP (IB) No. 1059 of 2018 by M/s

Concord Infrastructure Pvt. Ltd. (OC).

3. At the time of admission, not only Section 14 was made applicable but

also Ms. Rupa Arora was appointed as the IRP. IRP invited the claims from

the creditors of the CD pursuant to which the Appellant filed its claim in form

C as a financial creditor for a sum of Rs. 11,12,21,500 which included

principal amount of Rs. 9,23,00,000/- and interest of Rs. 1,89,21,500. The

said claim was admitted by the IRP at the time of collation and the Appellant

was granted a seat in the CoC with 1.82 % voting share. The Appellant filed

the claim as a financial creditor on the basis of a loan agreement dated

27.12.2017 executed between him and the CD as per which the CD agreed to

secure the amount of loan by 30 units which were yet to be constructed.

4. Shorn of unnecessary details, the Appellant alleged to have attended

the meetings of the CoC in which he was shown as a financial creditor. He

alleged to have voted in the plan submitted by Sunil Kumar Agarwal and Ors.

exercising the voting share allotted by the RP on the basis of the admitted

claim and the CoC ultimately approved the plan on 17.10.2019 in which the

Appellant was given treatment of the unsecured financial creditor and

provided Rs. 90 lakh.

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5. It is an admitted fact that plan approved by the CoC on 17.10.2019 was

not challenged by the Appellant before the Tribunal, however, the Appellant

filed an application I.A No. 510 of 2019 on 11.07.2020 in which the following

two prayers were made, namely, 1. Pass an order in favour of the Applicant

and against the Respondent directing the Respondent to classify the applicant

as a secured financial creditor (2) put the resolution plan again in terms of

change in the status of the applicant as a secured financial creditor as prayed

for. This application was ultimately dismissed by the Tribunal on 01.07.2021

with the following observations:-

"18. Heard submissions and perused the documents. We find force in the contentions of the RP. Considering the fact that the loan was disbursed to the CD by the applicant but the said is not supported with any documentary evidence to show the creation security interest as mentioned in IBBI (Liquidation Process) Regulation, 2016. Hence, the arguments that the present applicant needs to be classified as secured creditor cannot be accepted. The RP has rightly considered the absence of any proof of security documents and then declared the Applicant as unsecured financial creditor at par with financial creditor in class of creditor being home buyers.

In absence of any registration of charge in the RoC records of the CD, the present applicant needs to be recognized as unsecured financial creditor. Moreover, the resolution plan is approved by CoC and the resolution applicant cannot be put to hardship of facing new claim / new category of a claims, as held by Hon'ble Supreme Court. We are not convinced by the arguments of the applicant but agree with the decision of the RP.

6. The order dated 01.07.2021 remained unchallenged by the Respondent.

7. The Appellant filed I.A No. 4514 of 2021 in which the following prayers

were made:-

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"a) to direct the Resolution Professional to carry out the amendments in the Resolution Plan dated 12th of October 2019 filed for approval in I.A. No. 485 of 2019, to include the Applicant as an Allottee Le. creditor in a class qua the allotments made to him;

b) to remand the Resolution Plan filed for approval in IA. No. 485 of 2019 before the Committee of Creditors, for amending the Resolution Plan in terms of the present application in favour of the Applicant;

c) upon failure to alter the status and distribution qua the Applicant under the Resolution Plan in terms of the present application, reject the Resolution Plan filed vide I.A. No. 485 of 2019."

8. At the same time, the Appellant filed application I.A No. 1496 of 2020

in which the following prayers were made:-

"a) 'reject the resolution plan in relation to M/s. Shubhkamna Buildtech Private Limited filed vide C.A./485/2019 seeking approval of the resolution plan by the Adjudicating Authority and/or

b) direct the resolution applicant to pay to the tune of 100% by way of delivery of flats at parity to UCO Bank and co-operative Bank.

c) direct the IBBI to initiate appropriate disciplinary proceedings against the resolution professional by taking deliberate breach of duties under the Code and Regulations therein.

d) pass such other orders to secure the interest of the applicant and his security against the debt in favour off the applicant.'"

9. Both the applications of the Appellant were dismissed by the Tribunal

on 12.09.2022 and also approved the plan for which the application bearing

I.A No. 485 of 2019 was filed by the RP, on the same day i.e. 12.09.2022.

10. It is pertinent to mention that the order dated 12.09.2022 approving

the plan by the Tribunal came to be challenged before this Court in CA (AT)

(Ins) No. 1347 of 2022 which was filed by a secured financial creditor who

dissented with the resolution plan submitted by the successful resolution 5

applicant but the said appeal was dismissed by this Court vide order dated

25.10.2024 and the plan which was approved on 12.09.2022 was upheld.

Similarly, CA (AT) (Ins) No. 1468 of 2022 was filed by Shubhkamna City

Welfare Association through its authorised representative Ramesh Chandra

Gupta and Subhkamana City Welfare Association through its authorised

representative Surya Kant Tyagi. The said appeal was also dismissed on

29.04.2024.

10. The Tribunal dismissed the applications I.A No. 4514 of 2021 on the

ground that the loan agreement dated 27.12.2017 is an investment and not

the allotment as a homebuyer. The Appellant had never challenged his status

as a unsecured financial creditor after submitting claim in form C on

18.12.2018 before approving the resolution plan and that the Appellant has

been declared as an unsecured creditor in I.A No. 510 of 2019 and cannot be

equated with an allottee.

11. The Appellant has vehemently argued that the appeal deserves to be

allowed and impugned orders deserves to be set aside, inter alia, on the

ground that the Tribunal in I.A No. 510 of 2019 had observed that the

Appellant has to be treated as unsecured financial creditor at par with

financial creditor in class of creditors being home buyers, therefore, the

application has been filed to include the applicant as an allotee i.e. creditor

in class for the allotment made to him and for consequential reliefs of

remanding the resolution plan which has been approved in I.A No. 485 of

2019, to the CoC and to pass appropriate orders. He has however, submitted

that the order dated 01.07.2021 was challenged by the Appellant by way of

appeal i.e. CA (AT) (Ins) No. 579 of 2021 which was though withdrawn on 6

22.07.2024. Counsel for the Appellant has further submitted that in so far as

the application I.A NO. 1496 of 2020 is concerned, the Appellant has prayed

for a direction to resolution applicant to pay to the tune of 100% by way of

delivery of flats at parity with UCO Bank and Cooperative Bank. In this regard,

he has also drawn our attention to the relevant part of the plan in which the

UCO Bank and Cooperative Bank have been given 100% even as unsecured

creditor whereas the Appellant though treated as unsecured creditor has been

given very less.

12. On the other hand, Counsel for Respondent has submitted that both

the appeals deserves to be dismissed as both are denuded of merits. It is

contended that the Appellant himself submitted his claim in Form C as a

financial Creditor. He continued to participate in various meetings of the CoC

with same status. He was given the voting right as a financial creditor which

was of course unsecured financial creditor. He also took part in the voting

upon the plan which was ultimately approved by the CoC on 17.10.2019 with

the same status. It is submitted that after the plan was approved by the CoC

and was not challenged by the Appellant on the ground that he has been given

a wrong treatment as a unsecured financial creditor rather he filed I.A No.

510 of 2019 claiming himself to be a secured financial creditor but remained

unsuccessful. He has also submitted that the appeal filed against this order

was also withdrawn. It is further submitted that the Appellant after losing the

application I.A No. 510 of 2019 has filed this application for a declaration that

he may be treated as an allottee i.e. creditor in class for the allotment made

to him on the premise that in the order passed in I.A No. 510 of 2019

observations have been made by the Tribunal that he may be treated at par 7

with the homebuyers. It is submitted that treating at par with homebuyers is

to treat as unsecured financial creditor but it does not mean that he has to

be treated as an allottee.

13. As far as the other application no. 1496 of 2020 is concerned, it is

submitted by him that the said application is in fact not maintainable because

the plan has already been approved by the Tribunal on 12.09.2022 and

further approved by this Court by way of two decisions taken in CA (AT) (Ins)

No. 1347 and 1468 of 2022.

14. We have heard Counsel for the parties and perused the record with their

able assistance.

15. From the resume of the facts narrated herein above, the issue involved

is as to whether the Applicant can claim himself to be an allottee for the

purpose of declaration as a secured financial creditor?

16. The Tribunal has already held in the order dated 01.07.2021 passed in

I.A No. 510 of 2019 that the Appellant is not a secured financial creditor. The

Tribunal in that order has also not said that the Appellant is not an allotee.

All that has been said is that he should be treated as unsecured financial

creditor. The argument of the appellant on the basis of the order dated

01.07.2021 passed in I.A No. 510 of 2019 cannot be accepted.

17. In so far as the orders passed in I.A No. 1496 of 2020 is concerned, it

is suffice to say that this application has been filed post approval of the plan

on 12.09.2022 and orders passed by this Court on 29.05.2024 and

25.10.2024 upholding the approval of the resolution plan. In such

circumstances, the plan cannot be tinkered with at this stage specially when 8

the Appellant had not taken its remedy challenging the plan which was

approved by the Tribunal on 12.09.2022 in I.A No. 485 of 2019.

18. Thus, in view of the aforesaid facts and circumstance, we hardly find

any merit in the present two appeals for the purpose of interference and

hence, the same is hereby dismissed though without any order as to costs.

I.A.s, if any, pending are/is closed.

[Justice Rakesh Kumar Jain] Member (Judicial)

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

[Mr. Naresh Salecha] Member (Technical)

Sc/RR