Shefali Gupta & Anr vs Nilesh Sharma

Shefali Gupta & Anr. ....Appellants Vs. Nilesh Sharma Resolution Professional Today Homes ...Respondent and Infrastructure Pvt Ltd. For Appellants: Mr. Abhinav Vasisht, Senior Advocate with Mr. Shwetank Singh, Ms. Akshita Sachdeva, Mr. Anando Mukerjee, Advocates.

For Respondent: Ms. Nina R Nariman, Advocate for RP

ORDER

(Through Virtual Mode)

25.03.2022: Heard Shri Abhinav Vashisht, Learned Senior Counsel for

the Appellants and Ms. Nina R. Nariman, Learned Counsel for the Respondent.

2. This Appeal has been filed against the order dated 22.11.2021 passed

by the Adjudicating Authority (National Company Law Tribunal) New Delhi

Bench-II by which I.A 3458/2021 filed by the Appellant has been rejected.

Appellants before us are two homebuyers who have voting share of 0.14%.

Appellants filed Application I.A 3458/2021 where following reliefs have been

sought for:-

"(i) Direct the Resolution Professional to not submit the

Resolution Plan before the CoC as it is not compliant under

Section 30(2) of the Code.

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(ii) Stay the process of voting to be held on 10.08.2021, on

the two Resolution Plans as submitted before the Resolution

Professional and placed before the CoC.

(iii) Restrain the members of the Association from name

calling or defaming the parties herein;

(iv) Pass any other or further order(s) as may be deemed fit

and proper in the interest of justice."

3. The Application filed by the Appellants came for consideration before the

Adjudicating Authority and by order dated 22.11.2021, the Application was

rejected.

4. Shri Abhinav Vashisht, Learned Senior Counsel for the Appellants

submits that the Adjudicating Authority has not considered the submissions

raised by the Appellants on merit. He submits that the Adjudicating Authority

has noted the submissions of the Appellants in para 6 of the impugned order

but has not answered the submissions and he submits that the voting pattern

which was adopted was not in accordance with law and approval on such

voting pattern cannot enure to the benefit of any valid decision. It is submitted

that the issue raised was not answered, although in the Application the

Applicants have challenged the whole voting pattern by which the decision

regarding process of voting project-wise in the CoC has taken place.

5. Ms. Nina R. Nariman, Learned Counsel appearing for the Respondent

refuting the submissions of the Learned Counsel for the Appellants contends

that it is not open for the Appellants to challenge the process of voting.

Comp. App. (AT) (Insolvency) No. 100 of 2022 3

Appellant No.1 had also assented the process of voting which is apparent from

the record brought on the record by the Resolution Professional. It is

submitted that the Appellant wanted to stall the process of consideration of

the Resolution Plan and no interim order was granted by the Adjudicating

Authority staying the voting process. Voting was completed by the time when

Application came for consideration. It is submitted that no error has been

committed by the Adjudicating Authority in rejecting the Application filed by

the Appellants. It is submitted that the Application which was filed by the

Appellants only on 05.08.2021 by that time, in pursuance of the already

approved process, the plans were received and they were to be voted on

10.08.2021.

6. We have considered the submissions of the Learned Counsel for the

parties and perused the record.

7. From the perusal of the prayers made in the Application filed on

05.08.2021, it is clear that the prayers made by the Applicants were (i) direct

the Resolution Professional to not submit the Resolution Plan before the CoC

(ii) stay the process of voting to be held on 10.08.2021, on the two Resolution

Plans. As there was no interim order in the Application, Resolution Plan was

put to vote and on 17.08.2021 plan was approved by voting share of 96.93%.

The Appellants, as noted above, who have voting share of 0.14% sought to

challenge the order impugned, although there is no direct challenge to

Resolution Plan which has been approved with the requisite voting share on

17.08.2021. After Resolution Plan is approved, challenge to Resolution Plan is

Comp. App. (AT) (Insolvency) No. 100 of 2022 4

on limited ground. What Appellants' intent in filing the Appeal is to challenge

the Resolution Plan by questioning the process of voting.

8. We are of the view that at the instance of the Appellants who are only

two homebuyers having voting share of 0.14%, issues which are sought to be

raised cannot be allowed to be raised and decided in this Appeal. The prayers

made in the Application had already become infructuous when the Application

came for consideration before the Adjudicating Authority and the Adjudicating

Authority did not commit any error in rejecting the Application on the ground

that Resolution Plan has already been approved on 17.08.2021. We do not find

any error in the impugned order of the Adjudicating Authority warranting any

interference in exercise of our appellate jurisdiction. The Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

[Shreesha Merla] Member (Technical)

Anjali/nn

Comp. App. (AT) (Insolvency) No. 100 of 2022