Shalini & Anr vs M/S Shubhkamna Buildtech Pvt. Ltd & Anr

(Arising out of the Order dated 22.12.2020 passed by the National Company Law Tribunal, New Delhi, Bench -IV in M.A. No. 391/2019 in IB- 1059/ND/2018)

IN THE MATTER OF:

1. Shalini W/o Ranjan Kumar Singh, R/0110, Sigma-3, Greater Noida, Gautam Budh Nagar, Uttar Pradesh. ...Appellant No. 1

2. Ranjan Singh. S/0 Chandrika Singh, R/0110, Sigma-3, Greater Noida, Uttar Pradesh. ...Appellant No. 2

Versus

1. M/s Shubhkamna Buildtech Private Limited Through its Resolution Professional (RP) Mr. Anand Sonbhadra, AAA Insolvency Professionals LLP. E-10A, Kailash Colony, Greater Kailash-I, New Delhi-110014. ...Respondent No. 1

2. M/s Concord Infrastructure Private Limited, Having its registered office at: 184, Saini Enclave, East Delhi - 110092. ...Respondent No. 2

Present For Appellants: Mr. Ajit Singh, Adv.

For Respondents: Mr. Abhishek Anand, Mr. Nipun Gautam, Advocates for RP Comp. App. (AT) (Ins.) No. 535 of 2021

JUDGEMENT

(04 .04.2025)

NARESH SALECHA, MEMBER (TECHNICAL)

1. The present appeal have been filed by 2 Appellants i.e. Shalini and Ranjan

Singh under Section 61 of the Insolvency and Bankruptcy Code, 2016 ("Code")

against the Impugned Order passed in M.A No.391 of 2019 in CP (IB) No.

1059/ND/2018 by the National Company Law Tribunal, New Delhi,

("Adjudicating Authority") on 22.12.2020.

2. M/S Shubkamna Buildtech Private Limited (Corporate Debtor) through its

Resolution Professional Mr.Anand Sonbhadra is the Respondent No.1 herein.

M/S Concord Infrastructure Private Limited (Operational Creditor) is the

Respondent No.2 herein.

3. The Appellants submitted that both of them are homebuyers who have

invested their savings in projects launched by Respondent No. 1. The Respondent

No. 1, as the Resolution Professional for Shubhkamna Buildtech, a real estate

developer, was engaged in the construction of two group housing projects in

Noida and Greater Noida. These projects include "Shubhkamna Techomes,"

comprising 722 flats located at Plot No. GH-05B, Sector-137, Noida, and

"Shubhkamna City," comprising 1,139 flats spread over 33,538 square meters at

Plot No. GH-02A, Sector-1, Greater Noida. The Appellants assert that their

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substantial investments in these projects remain unfulfilled due to delays and

unresolved issues.

4. The Appellants submitted that the "Shubhkamna City" project in Greater

Noida comprises five towers, with structural construction nearly complete and

plastering finalized in some towers, pending finishing work. These towers contain

600 flats, all sold by Respondent No. 1, which collected approximately 70% of

the total consideration from homebuyers, including their proportionate share of

land costs. Despite this, development has been stalled for four years due to

Respondent No. 1's financial mismanagement and misappropriation of funds, as

evidenced by the Noida Authority's recovery notice of Rs. 78.23 crore for unpaid

dues.

5. The Appellants submitted that the main insolvency proceeding (IB No.

1059/2018) was initiated by an Operational Creditor, a contractor in the

"Shubhkamna City" project, who claimed a debt of Rs. 2.71 Crores based on an

agreement dated 28.02.2018. The Appellants submitted that this Appellate

Tribunal passed an order on 26.11.2018, admitting the application filed by the

Operational Creditor and appointing an Interim Resolution Professional.

6. The Appellants submitted that the order dated 26.11.2018 passed by the

Adjudicating Authority in IB No. 1059/2018 was challenged vide Company

Appeal (AT) (Ins) No. 471/2019, however this Appellate Tribunal, vide its order

dated 03.09.2019, disposed of the Appellant's appeal with the following

observations:

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Comp. App. (AT) (Ins.) No. 535 of 2021

"In the facts and circumstances, without going into the question of maintainability while we are not inclined to interfere with the impugned order dated 26.11.2019, we give liberty to the Appellant or any aggrieved person that if any resolution plan is approved without taking into consideration the interest of the allottees, including the terms of agreement as reached with the Corporate Debtor, they shall be entitled to assail the same."

7. The Appellants submitted that, following the order passed this Appellate

Tribunal, they filed an application, MA No. 391/2019 in C.P No. IN-

1059/ND/2018 seeking impleadment to safeguard their interests and to participate

in the resolution process, including its voting. The Appellant submitted that since

the filing of the application, significant developments occurred. Mr. Anand

Sonbhadra had been appointed as the Resolution Professional, who conducted

multiple meetings of the Committee of Creditors ('CoC'), passed resolutions

through voting, and eventually secured CoC approval for the Final Resolution

Plan. Subsequently, the Resolution Professional filed an application under

Section 30(6) of the Code, seeking approval of the resolution plan by the

Adjudicating Authority. The Appellants filed their objections to this resolution

plan to ensure their interests as homebuyers are adequately protected and

addressed in the resolution process.

8. The Appellants submitted that the Application No. 391/2019 was limited

to specific prayers, namely:

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Comp. App. (AT) (Ins.) No. 535 of 2021

(b) Directing the Resolution Professional to follow the observations made by this

Appellate Tribunal in its order dated 03.09.2019.

(d) Directing the Resolution Professional to provide voting shares along with

voter identification to ensure transparency in the resolution process.

(e) Directing the Resolution Professional to restore the voting rights of the flat

buyers, including Applicants No. 4 and 5.

The Appellants submitted that as far as prayer (b) is concerned, it has not been

followed either in letter or spirit by the CoC, while approving the resolution plan,

acted contrary to this Appellate Tribunal's order dated 03.09.2019 by failing to

consider the interests of flat buyers, including the terms of agreements reached

with the Corporate Debtor.

The Appellants submitted that, with respect to prayers (d) and (e) in

Application No. 391/2019 regarding voting rights, the Resolution Professional

has violated legal principles by failing to disclose the voting shares of the two

groups of flat buyers, namely "Shubhkamna City" and "Shubhkamna Techomes."

The Appellant submitted that the Resolution Professional, through certain office

bearers of flat buyers' associations, actively campaigned for a "yes" vote for the

resolution plan. The Appellants and other flat buyers remain in complete darkness

regarding their votes in the "Shubhkamna City" project, as no information about

their voting shares was ever provided. The Appellants further submitted that

several individuals who had voted against earlier resolutions were arbitrarily

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removed from the voting list without any basis or prior notice, including

Applicants No. 4 and 5 (now Appellants).

9. The Appellants submitted that Respondents No. 4 and 5 had provided all

necessary documents related to their flats to the IRP, including receipts, allotment

letters, and Builder Buyer Agreements ('BBA'). These documents were sent via

email on 11.12.2018 to the IRP at the email address gurkamal.hora@gmail.com.

The Appellants further submitted that these documents pertain to September

2018, but the Resolution Professional has deliberately produced cash records only

for the years 2011, 2012, and 2013 to falsely demonstrate that the claims of

Applicants No. 4 and 5 are not supported. It is submitted that the Resolution

Professional, with mala fide intentions, has intentionally withheld records from

2018 to unjustly deny the claims of the Applicants.

10. The Appellants submitted that the present Operational Creditor's claims

pertain specifically to the work performed in the "Shubhkamna City" project.

Therefore, the Resolution Plan should have been formulated exclusively for that

project. The Appellants rely on the judgment dated 04.02.2020 passed by this

Appellate Tribunal in Flat Buyers Association Winter Hills-77, Gurgaon vs.

Umang Realtech Pvt. Ltd., passed in Company Appeal (AT) (Insolvency) No. 926

of 2019, which categorically held that in cases involving real estate and

infrastructure companies, the Corporate Insolvency Resolution Process ('CIRP')

must be conducted on a project-wise basis and cannot involve other unrelated

projects. The Appellants submitted that merging multiple projects into a single

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resolution process is contrary to this principle and prejudices the interests of

homebuyers in individual projects like "Shubhkamna City."

11. The Appellants submitted that in the present case, two distinct projects

were improperly merged for the purpose of maximizing assets, despite the fact

that both projects had separate approvals from different authorities, distinct

allottees, creditors, and financial institutions. The Appellants contend that this

merger was done with the ulterior motive of ensuring that if flat buyers from one

project overwhelmingly voted in favor of the Resolution Plan, it would secure the

passage of the plan for the other project as well. It is submitted that approximately

57% of combined voters supported the Resolution Plan, and this combined voting

mechanism ensured that both projects were passed together, thereby undermining

the individual interests of homebuyers and creditors associated with each project.

12. The Appellants submitted that the disclosure of voting by different sets of

flat buyers is crucial for this Appellate Tribunal to determine the issues at hand,

particularly whether voting and the CIRP should be conducted on a project-wise

basis, as per the judgment in Flat Buyers Association Winter Hills-77, Gurgaon

(Supra). It is the case of the Appellant that such disclosure will also clarify why

certain voters, especially those who opposed the Resolution Plan, were

deliberately excluded from the voting process. The Appellants further submitted

that transparency in voting is essential to ensure fairness and compliance with

legal principles.

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Comp. App. (AT) (Ins.) No. 535 of 2021

13. The Appellants submitted that this Appellate Tribunal, vide its order in CP

No. IN-1059/ND/2018 dated 22.12.2020, dismissed their application with the

following observations:

• The Resolution Plan had already been discussed, analysed, and approved

by the CoC and was pending consideration before the Adjudicating Authority.

• The Applicants, including Appellants herein, held only a minuscule voting

share of approximately 1% in the CoC, while the Resolution Plan was approved

with over 87% voting share.

• The claims of Applicants No. 4 and 5 were not reflected in the Corporate

Debtor's Books of Account and had already been rejected by the Resolution

Professional.

• The Resolution Plan could not be provided to the Applicants as it had

already been approved by the CoC and was pending before the Adjudicating

Authority for approval. Furthermore, the Applicants had already filed I.A No.

1718 of 2020 challenging the said Resolution Plan.

The Appellants submitted that these observations highlight procedural

irregularities and emphasize their limited ability to influence decisions due to

their small voting share, despite their legitimate claims being overlooked. The

Appellant reiterated their objections to the Resolution Plan and requested for

appropriate reliefs from this Appellate Tribunal.

14. The Appellants submitted that they are aggrieved by the order of the

Adjudicating Authority dated 22.12.2020, which not only rejected their

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application seeking the restoration of voting rights for flat buyers but also

included observations indicating that the claims filed by Applicants No. 4 and 5

(the Appellants) were based on cash receipts that were not reflected in the cash

register of the Corporate Debtor. The Appellants contend that this dismissal

undermines their legitimate claims and rights as flat buyers, and they seek to

challenge the findings made in this order to ensure their interests are adequately

represented and protected.

15. The Appellants submitted that the Corporate Debtor has failed to provide

any books of account or cash registers beyond the year 2013-14 and further

submitted that the Corporate Debtor either does not possess the cash registers for

the years 2015 through 2018, during which period the Applicants entered into

Builder Buyer Agreements, received allotment letters, and were issued receipts

for cash payments made. The Appellants submitted that the non-availability of

the Corporate Debtor's cash register or accounts for the period from 2015 to 2018

cannot be construed as evidence of non-payment by the Appellants. The

Appellants further submitted that neither the Corporate Debtor nor the Resolution

Professional has alleged that these documents are fabricated or invalid. Moreover,

the Resolution Professional, in an email dated 14.06.2019, acknowledged the non-

availability of relevant records, further validating the Appellants' claims.

16. The Appellants submitted that the issue of cash register entries can only

be clarified if the Resolution Professional gains access to the relevant registers or

if such records are provided by the former directors, representatives, accounts

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department, or officers of the Corporate Debtor. However, in the present case, the

former directors of the Corporate Debtor are absconding, and the Resolution

Professional has made no inquiry from any source regarding the status of

allotment of flats to the Appellants.

17. The Appellants submitted that the rejection of their claims cannot be based

solely on the absence of entries in the cash register, especially when the

Resolution Professional does not possess these registers and has not sought

clarification from the Corporate Debtor's directors or officers about the allotment

status. The Appellants emphasized that they hold valid Builder Buyer

Agreements, allotment letters, and receipts as evidence of their claims.

18. The Appellants submitted that the Adjudicating Authority erred in denying

their prayer on the grounds that the Applicants, including the Appellants herein,

hold only a minuscule voting share of approximately 1% of the total CoC. The

Appellants contend that their rights should not be rejected solely based on their

voting share, as this does not diminish their legitimate claims or affect the passing

of resolutions by the CoC. The Appellants emphasized that every stakeholder's

rights must be considered and upheld, regardless of their voting percentage, to

ensure fairness and justice in the resolution process.

19. The Appellants submitted that the Adjudicating Authority erred in

rejecting their application on the ground that the claims of Applicants No. 4 and

5 (now Appellants) were not reflected in the Books of Account and had already

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been rejected by the Resolution Professional. The Appellants contended that this

is not a valid ground to deny their voting rights.

20. Concluding their arguments, the Appellants urged this Appellate Tribunal

to dismiss the Impugned Order and allow their appeal.

21. Per Contra, the Respondent No. 1 denied all the averments made by the

Appellant in the present appeal.

22. The Respondent No. 1 submitted that the Corporate Debtor, incorporated

on December 08, 2006 under the Companies Act, 1956, is engaged in the real

estate business with its registered office located at 197-E, Pocket-IV, Mayur

Vihar Phase-I, Delhi. At the time of initiation of the CIRP, the Corporate Debtor

had two ongoing real estate projects: (i) Shubhkamna Techomes Project situated

at Plot GH 05B, Sector-137, Noida; and (ii) Shubhkamna City Project situated at

Plot GH02A, Sector-1, Greater Noida West.

23. The Respondent No. 1 submitted that Regulation 12 of Insolvency and

Bankruptcy Board of India (Insolvency Resolution Process for Corporate

Debtor), 2016 ("CIRP Regulations, 2016") mandates that every creditor shall

submit proof of its claim to the Interim Resolution Professional, which includes

providing relevant documents. The Respondent No. 1 submitted that the he had

provisionally admitted the claim of the Appellants based on the available

documents provided by the Appellants and had informed regarding the

provisional admission of the claim to the Appellants vide email dated 14.06.2019.

It is the case of the Respondent No. 1 that he further conducted a thorough

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examination of the documents furnished by the Appellants, and reasonably

concluded that the cash receipts relied upon by the Appellant to substantiate its

claim are not reflected in the cash register of the Corporate Debtor and observed

that the name of the Appellants were not reflecting in the list of homebuyers who

had made allegedly the payment in the cash form to the Corporate Debtor. In the

absence of any proof of the said cash receipts, the Respondent No. 1 was entitled

not to verify the Appellant's claim.

24. The Respondent No. 1 submitted that following the publication of the

public announcement in Form A by the IRP, the CoC was constituted based on

the claims received from the creditors of the Corporate Debtor. The first meeting

of the CoC was conducted by the IRP on 07.02.2019, and during the meeting, the

CoC decided to replace the then IRP with the Applicant as the Resolution

Professional of the Corporate Debtor, and this decision was subsequently

confirmed by the Adjudicating Authority through an order dated 12.02.2019.

25. The Respondent No. 1 submitted that the second meeting of the CoC was

held on 11.03.2019 and the focus of the meeting was on the preparation of the

Information Memorandum, the handover of relevant documents from the Interim

Resolution Professional to the Resolution Professional and the appointment of

Registered Valuers and forensic auditors. Further, resolutions regarding the

approval of the bid evaluation matrix, Form G, eligibility criteria, and the

appointment of the forensic auditor and registered valuers were put to vote during

the meeting.

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Comp. App. (AT) (Ins.) No. 535 of 2021

26. The Respondent No. 1 submitted that following the second CoC meeting,

a Form-G was published on 23.03.2019 and Resolution Professional also

uploaded the Form-G on the IPE website to attract prospective resolution

applicants, with 22.04.2019, being the last date for submission of Expressions of

Interest ('EoI'). In response to this publication, seven EoIs, along with the

required documents, were received by the Resolution Professional . However,

after reviewing the documents and profiles of the applicants, the Resolution

Professional was not satisfied with their credentials and seriousness. As a result,

the Resolution Professional proposed in the third CoC meeting that the

submission of EoIs be reissued, providing a seven-day extension for applicants to

submit their EoIs.

27. The Respondent No. 1 submitted that the fourth meeting of the CoC was

held on July 29, 2019, during which the Resolution Professional discussed several

key matters with the CoC, including the opening of the Corporate Debtor's current

account, the re-publication of Form-G on June 9, 2019, and the approval for

exclusion of time from the CIRP period.

28. The Respondent No. 1 submitted that the Form-G dated 31.07.2019, was

published and subsequently, several prospective Resolution Applicants expressed

their interest, and as a result, the Request For Resolution Plan ('RFRP') was sent

to these prospective applicants. The Respondent No. 1 submitted that, as per the

process, the Resolution Professional received Resolution Plans from two

prospective Resolution Applicants by the deadline of 10.08.2019. These

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applicants were the Consortium - Executives of the Association of Home Buyers,

and Sunder Kumar Singhal & Sunil Kumar Agarwal. Following this, the

Resolution Plans were opened during the fifth CoC meeting, where the key

aspects of the respective plans were discussed. A comparative note highlighting

the key points of these two Resolution Plans was subsequently circulated among

the Authorized Representative, homebuyers, and other CoC members for further

review.

29. The Respondent No. 1 submitted that the Resolution Professional carefully

deliberated on the Resolution Plans received from the two applicants and

undertook a process to ensure that these plans were in accordance with the terms

and conditions outlined in the RFRP published on 07.08.2019. However, due to

ongoing litigation concerning the status of NOIDA authority as a financial

creditor or operational creditor, a stay was granted by the Adjudicating Authority

from August 6 to August 21, and subsequently, a stay on voting was imposed

pending the order in the NOIDA application until September 30. Thereafter, on

09.10.2019, the Resolution Plan was approved by the CoC with a voting

percentage of 87.57% the total voting share including 66.70%, pertaining to the

homebuyers (creditors in a class), voted in favor of the Resolution Plan.

30. The Respondent No. 1 submitted that, following the approval of the

Resolution Plan by the CoC, the Resolution Professional filed an application

under Section 31 of the Code on October 23, 2019, seeking approval of the

Resolution Plan from the Adjudicating Authority, which was approved by the

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Adjudicating Authority on 12.09.2022 in CA No. 485/ND/2019 which was

approved by the Adjudicating Authority on 12.09.2022.

31. The Respondent No. 1 submitted that the claim filed by the Applicants were

entirely unsupported by any evidence, which was the reason it was not accepted.

The Respondent No. 1 stated that the claims submitted by the Appellants were

based on alleged cash receipts that were not reflected in the Corporate Debtor's

cash register. Therefore, in the absence of proper proof provided by the

Appellants, it was not possible to include the Appellants as part of the CoC.

32. The Respondent No. 1 submitted that the Appellants' reference to the order

passed by this Appellate Tribunal on September 3, 2019, claiming that relief was

granted to them, is misleading. In reality, no such relief was granted, and the only

liberty provided to the Appellants was the right to challenge the Resolution Plan.

33. The Respondent No. 1 submitted that the Hon'ble Supreme Court of India

in the matter of Essar Steel India Limited through Authorized Signatory v.

Satish Kumar Gupta & Ors., [2019 SCC Online SC 1478] affirmed that once a

Resolution Plan is approved by the CoC, no claims can be accepted to avoid

situation akin to a 'hydra head popping,' which would create uncertainty regarding

the amounts payable by resolution applicant who successfully takes over the

business of the Corporate Debtor. The Respondent No. 1 submitted that this

decision rendered in Essar Steel (Supra) was followed by this Appellate Tribunal

in the matter of JSW Steel Ltd. v. Mahender Kumar Khandelwal & Ors., passed

in Company Appeal (AT) (Ins.) No. 957 of 2019 where it was held that a successful

Page 15 of 23 Comp. App. (AT) (Ins.) No. 535 of 2021

Resolution Applicant cannot be required to face undecided claims after the

Resolution Plan has been submitted by them and accepted by the CoC.

34. The Respondent No. 1 submitted that in the case decided by this Appellate

Tribunal in the matter of Office of the Assistant State Tax Commissioner v. Sh.

Parthiv Parikh & Ors., passed in Company Appeal (AT) (Ins.) No. 583 of 2020

decided on 26.03.2021 in which it was held that:

"15. Thus, it is clear that much water had flown under the bridge from the date of issue of public notice (on 02.11.2018) and the extended time period of ninety days as provided under Regulation 12(2) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and the Resolution Plan as approved by the COC was submitted to the Adjudicating Authority for necessary approval under Section 30. Any interruption in the CIR Process at this stage by including a delayed claim/s would have meant setting the clock back and sending matter back to COC & RP. Rt cannot be ruled out that if the claim of the Operational Creditor State Tax Department, Government of Maharashtra was accepted at such a late stage, there could have been other such applicants too, who would have demanded accommodation on the same ground allowing late submission of their claims once this window would have opened. It would be trite to emphasise the fact that this would have meant complete disruption of the CIRP and the timelines stipulated therein. Delay would defeat Resolution as this would have resulted in the CIRP and approval of successful Resolution Plan to continue for an

Page 16 of 23 Comp. App. (AT) (Ins.) No. 535 of 2021

indefinite period of time, which is certainly not the intention of IBC. A real hazard in such an event could be liquidation, and corporate death, of an otherwise functional and corporate debtor, with which Resolution Plan approved is set to come out of the Red."

(Emphasis Supplied)

35. The Respondent No. 1 submitted that the Appellants were clearly informed

and apprised of the Respondent No.1 inability to admit their claim through emails,

in which the Respondent No.1 explicitly requested them to provide the relevant

documents to support their claim. However, the Appellants failed to furnish the

necessary documents.

36. The Respondent No. 1 submitted that the Appellants lack legitimacy as

homebuyers of the Corporate Debtor. Based on the records available with

Respondent No. 1, no credible basis exists to substantiate the claim form

submitted by the Appellants against the Corporate Debtor, hence the Appellants

are not homebuyers entitled to participate in the insolvency process.

37. The Respondent No. 1 denied that the Appellants are parties to the tripartite

arrangement involving the Corporate Debtor, the Operational Creditor, and the

Shubhkamna City Welfare Association. Furthermore, the members of the

Shubhkamna City Welfare Association have passed a resolution unequivocally

expressing their support and confidence in the CIRP of the Corporate Debtor,

thereby reinforcing the legitimacy of the ongoing proceedings exclusive of the

Appellants.

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Comp. App. (AT) (Ins.) No. 535 of 2021

38. The Respondent No. 1 further submitted that the Resolution Professional

has scrupulously adhered to all legal principles and furnished every requisite

document as mandated under the CIRP Regulations. The claims advanced by the

Appellants lacks any substantiating proof, rendering it untenable and justifiably

rejected by Respondent No. 1 as the Appellants' claim rests on cash receipts

absent from the Corporate Debtor's cash register, underscoring its evidentiary

deficiency.

39. The Respondent No. 1 denied that the voting share and vote identification

were not furnished to the Adjudicating Authority in the Resolution Plan approval

application and further denied that the Appellants were removed from the CoC

post-verification of their claims, as no such removal occurred following due

scrutiny.

40. The Respondent No. 1 submitted that an application under Section 19(2) of

the Code was duly filed before the Adjudicating Authority, seeking cooperation

from the erstwhile management of the Corporate Debtor to procure all relevant

records. Despite this, the ex-promoters have failed to provide any books, records,

bank account details, agreements, registers, or electronic storage devices.

Consequently, Respondent No. 1 and its team have reconstructed the data and

accounts, relying on information sourced from public domains, erstwhile

auditors, tax consultants, homebuyers, creditors, and available bank statements of

known accounts.

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41. The Respondent No. 1 submitted that a meticulous examination of the

documents tendered by the Appellants was undertaken, leading to the reasoned

conclusion that the cash receipts relied upon by the Appellants to substantiate

their claim find no reflection in the Corporate Debtor's cash register. The

Respondent No. 1 further submitted that the Appellants' names were

conspicuously absent from the list of homebuyers who effected such alleged cash

payments to the Corporate Debtor. It is the case of the Respondent No.1 that

concrete evidence establishing the authenticity and genuineness of the said cash

receipts claimed by the Appellant, Respondent No. 1 was duty bound to deny the

Appellants' claim, in accordance to the Code and the relevant regulations.

42. The Respondent No. 1 submitted that the 6th CoC meeting, convened on

09.10.2019 by the Respondent No. 1, considered the Resolution Plan submitted

by the Consortium of Executive of Association of Home Buyers, Mr. Surender

Kumar Singhal, and Mr. Sunil Kumar Agarwal. The said plan was put to vote and

duly approved by the CoC with an affirmative vote of 87.60%, thereby

designating the consortium as the Successful Resolution Applicant for the

Corporate Debtor. Respondent No. 1 further submitted that, pursuant thereto, an

application bearing C.A. No. 485/ND/2019 was filed under Section 30(6) read

with Section 31(1) of the Code before the Adjudicating Authority, seeking

approval of the SRA's Resolution Plan, who vide its order dated 12.09.2022

approved the said Resolution Plan.

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Comp. App. (AT) (Ins.) No. 535 of 2021

43. The Respondent No. 1 submitted that the Hon'ble Supreme Court of India,

in a catena of judgments, has unequivocally held that once a Resolution Plan is

approved, no further claims can be entertained, as such acceptance would

tantamount to a "hydra head popping," imperilling the certainty of amounts

payable by the prospective Resolution Applicant tasked with reviving the

Corporate Debtor's business. This principle finds affirmation in Essar Steel

(Supra) (Paragraphs 42 and 44), RPS Infrastructure Ltd. v. Mukul Kumar &

Anr., [(2023) SCC Online SC 1147] (Paragraphs 20-23), and Harish Polymer

Product v. George Samuel & Anr., passed in CA (AT) (Ins) No. 420 of 2021 by

this Appellate Tribunal read with Civil Appeal No. 6929 of 2021.

44. The Respondent No. 1 submitted that the Resolution Plan Order dated

12.09.2022, passed by the Adjudicating Authority, stands reaffirmed by this

Appellate Tribunal in Company Appeal (AT) (Ins.) No. 1347 of 2022, and in

Company Appeal (AT) (Ins.) No. 1468 of 2022 where, this Appellate Tribunal had

upheld the commercial wisdom of the CoC, declining to interfere with the

approved Resolution Plan.

45. The Respondent No. 1 submitted that the Impugned Order is legally sound

and cogently reasoned. The Resolution Plan was thoroughly deliberated,

evaluated, and approved by the CoC with an overwhelming majority exceeding

87% voting share, rendering the Appellant's alleged negligible 1% voting share

inconsequential to the outcome. Furthermore, the Adjudicating Authority upheld

the Respondent No. 1's rejection of the Appellants' claims, noting their absence

Page 20 of 23 Comp. App. (AT) (Ins.) No. 535 of 2021

from the Corporate Debtor's cash register and prior rejection by the Resolution

Professional.

46. Concluding his arguments, the Respondent No. 1 requested this Appellate

Tribunal to dismiss the appeal with exemplary cost.

Findings

47. We note that the present appeal has been filed by the Appellants being

aggrieved by the Impugned Order dated 22.12.2020, where the Adjudicating

Authority dismissed their application on the grounds that the Appellants held only

a minuscule voting share of approximately 1% of the total CoC voting share and

that the claims of Applicants No. 4 and 5 (now Appellants) were not reflected in

the books of account and had already been rejected by the Resolution

Professional. The Appellants contended that their claims were not considered,

despite having valid Builder Buyer Agreements, allotment letters, and receipts.

48. We note that the Appellants have filed another appeal bearing Comp. App.

(AT) (Ins.) No. 534 of 2021 which was also heard by us along with the present

appeal. In Comp. App. (AT) (Ins.) No. 534 of 2021, the Appellant basically

challenged the rejection of their claims by the Resolution Professional and the

Adjudicating Authority. We have already heard and disposed of this appeal and

the judgment of which is also being pronounced simultaneously with the present

appeal in which we have rejected the appeal of the Appellants.

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Comp. App. (AT) (Ins.) No. 535 of 2021

49. We have noted that the CoC had already approved the Resolution Plan of

the Successful Resolution Applicant and based on which the Respondent No. 1

moved an IA bearing CA No. 485/ND.2019 under Section 30(6) r/w Section 31(1)

of the Code before the Adjudicating Authority for approval of the Resolution Plan

which has already been approved by the Adjudicating Authority vide order dated

12.09.2022.

50. It is also pertinent to mention that the Respondent No. 1 submitted the

Resolution Plan Order dated 12.09.2022, passed by the Adjudicating Authority,

stands reaffirmed by this Appellate Tribunal in Merina Commotrade Pvt. Ltd. v.

Anand Sonbhadra, Resolution Professional for Shubhkamna Buildtech Pvt.

Ltd. & Ors. passed in Company Appeal (AT) (Ins.) No. 1347 of 2022 and

Shubhkamna City Welfare Association & Anr. v. Shubhkamna Buildtech Pvt.

Ltd. Through Resolution Professional & Anr., passed in Company Appeal (AT)

(Ins.) No. 1468 of 2022. In these judgments, this Appellate Tribunal had already

upheld the commercial wisdom of the CoC, declining to interfere with the

approved Resolution Plan.

51. In view of above analysis, since the Resolution Plan has already stand

approved long time back in the year of 2022 which was further confirmed by this

Appellate tribunal again in the year 2022, we do not fine any merit in the present

appeal.

52. We would also like to reiterate that the Appellants failed to substantiate

their claims by giving suitable proof of payments to the Respondent No.1 who

Page 22 of 23 Comp. App. (AT) (Ins.) No. 535 of 2021

categorically stated before us that the Respondent No. 1 did not find any proof of

payment or the Appellants name in the homebuyer's list maintained by the

Corporate Debtor.

53. In fine, since the Resolution Plan already stand approved not only by the

Adjudicating Authority but also confirmed by this Appellate Tribunal, the present

appeal of the Appellants has become infructuous and therefore, stand rejected.

No Cost. IA if any are closed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

[Mr. Indevar Pandey] Member (Technical) Sim

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