Ashok Kumar Dhamija Vs. Shiv Nandan Sharma RP of Saha Infratech Pvt. Ltd. – NCLAT New Delhi
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A single allottee has no locus to challenge the appointment of an Authorized Representative in the matter of Corporate Debtor as approved by the majority of the class of creditors – Mr. Mukesh Gupta IRP M/s. Gupta Builders and Promoters Pvt. Ltd. – NCLT Chandigarh Bench
The Adjudicating Authority observed it is pertinent to note that in total there are 1777 allottees/creditors belonging to the State of Punjab, Haryana, Himachal Pradesh, U.T. of Chandigarh and Jammu & Kashmir. The applicant herein is just one allottee out of 1777 allottees in the matter of Corporate Debtor and as such, she cannot stand outside the decision of the class of creditors out of which homebuyers having 73.52% voting share have selected an Authorized Representative. The applicant being a single allottee having only a 0.05% share cannot dictate unilateral terms or object to the decision of the majority of the class of creditors. The Ld. counsel for the respondent/RP has rightly placed reliance upon the authority titled as Jaypee Kensington (2021) ibclaw.in 63 SC. Thus, the applicant being a single allottee has no locus to challenge the appointment of an Authorized Representative in the matter of the Corporate Debtor as approved by the majority of the class of creditors.
Even if some of Homebuyers have not voted in favour of Resolution Plan, but the majority (more than 50%) have voted in favour of the Resolution Plan approving the same, the dissenting Homebuyers who are in minority have to go along with the views of the majority – Bipin Sharma Vs. Earth Infrastructure Ltd. Through Shri Akash Singhal, RP – NCLAT New Delhi
NCLAT held that the Authorised Representative so selected to participates in the CoC meetings as well as in decision making in the CoC, he does so on behalf of all the home allottees/homebuyers and the view of individual homebuyer is therefore subsumed in the majority (of more than 50%) decision coming through that process when the financial creditors in class express views and voted in any matter. The appellants, who have exercised their right to vote or not cared to exercise their right to vote form a miniscule minority, opposing the approval of resolution plan. Having done so, they now do not possess an independent right to challenge the majority vote (99.97%) of the homebuyers. NCLAT concluded that we are of the clear opinion that even if some of the homebuyers have not voted in favour of the plan, but the majority (more than 50%) have voted in favour of the resolution plan approving the same, the dissenting homebuyers who are in minority have to go along with the views of the majority. They are, therefore, not entitled to prefer this appeal. The appeal is disposed of on the ground of non-maintainability.
Piya Puri Vs. Mr. Debhashish Nanda Resolution Professional of Venta Realtech Pvt. Ltd. – NCLAT New Delhi
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NCLT directs class of Financial Creditors/Homebuyers to present on next hearing since they are not co-operating – Vemuri Ravi Kumar Vs. Bhrigu Infra Pvt. Ltd. – NCLT Hyderabad Bench
CoC comprises of 7 real estate allotees, and so far there are no operational creditors. The Adjudicating Authority held that appointing an authorised representative on behalf of majority of the Class of financial creditor would be an additional burden and results in increasing the CIRP costs. At the same time the interest of justice would be served by allowing all the 7 class of financial creditors to form part of the CoC. Therefore, in view of the peculiar facts and circumstances we direct the IRP to proceed with the representation of all the 7 financial creditors instead of they being represented by authorized representative.
Further, it held that since it is represented by Learned Counsel for IRP that class of financial creditors are not co-operating, let the Class of Financial Creditors be present on the next hearing.
Michael Meenattor Vs. P.T Joy IRP of MIR Realtors Pvt. Ltd. – NCLT Kochi Bench
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Michael Meenattor Vs. P.T Joy IRP of MIR Realtors Pvt. Ltd. – NCLT Kochi Bench Read Post »
The mere fact that the Authorised Representative of a creditor in a class have no role in receipt and verification of the claim of the creditors, it cannot be held to mean that creditors in a class have no right with regard to receipt and verification of their claim – Aashray Social Welfare Society & Ors. Vs. Saha Infratech Pvt. Ltd. & Ors. – NCLAT New Delhi
Issues which arise for consideration in this Appeal (i) Whether the application for impleadment filed by the Appellants before the Adjudicating Authority seeking impleadment deserve rejection on the ground that Authorised Representative of Homebuyers who are creditors in class is not representing the creditors in a class before the Adjudicating Authority? (ii) Whether the Appellants have no right to participate in adjudication of the claim of the Financial Creditors whose claim has been rejected by the IRP? (iii) Whether the Adjudicating Authority committed error in rejecting impleadment application filed by the Appellants?
NCLAT held that the clarification appended to Regulation 16A(5) is only clarification to the statutory scheme delineated under the Regulations and the Code that the Authorised Representative has no role in respect of verification of claim of a creditor in class. Can it be said that the Authorised Representative has no role in respect of verification of claims of creditors, therefore, the Financial Creditors in a class themselves have also no right with regard to receipt or verification of claims. The answer is obviously no. The Financial Creditor in class have every right to submit their claim giving proof of verification. The mere fact that the Authorised Representative of a creditor in a class have no role in receipt and verification of the claim of the creditors, it cannot be held to mean that creditors in a class have no right with regard to receipt and verification of their claim. The clarification as contained in Regulation 16A(5) has been read by the Adjudicating Authority to an extent which it never meant. The conclusion recorded by the Adjudicating Authority in paragraph 23 on the basis of erroneous interpretation of Regulation 16A(5) resulted in a wrong conclusion that the creditors in a class have no role in receipt or verification of claims of creditors.
Exclusion of claim of more than 251 i.e. about 53% of total homebuyers/allottees cannot lead to a fair and just resolution of the Corporate Debtor – Amit Goel Vs. Piyush Shelters India Pvt. Ltd. Through RP Shri Swami Deen Gupta – NCLAT New Delhi
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Ramkrishnan Sadasivan (Liquidator) of M/s Thiru Arooran Sugars Ltd. – NCLT Chennai Bench
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Ramkrishnan Sadasivan (Liquidator) of M/s Thiru Arooran Sugars Ltd. – NCLT Chennai Bench Read Post »
If the Authorized Representative shall have no role in receipt or verification of claims of creditors of the class, he represents, then the association or the allottees who come under the class of creditors, shall also have no role in receipts or verification of claims of creditors – IDBI Trusteeship Services Ltd. Vs. Saha Infratech Pvt. Ltd., Through Shiv Nandan Sharma IRP – NCLT New Delhi Bench Court-II
AA held that as per CIRP Regulation 13(2), the IRP or the RP shall make a list of creditors available for inspection by the persons, who have submitted proofs of claim or by the members, partners, directors and guarantors of the corporate debtor. It is further seen that as per CIRP Regulation 14, the IRP or the RP is also authorized under the regulation to determine the amount of claim or revise the amount of claim admitted including the estimates of the claims made under Sub Regulation 1, when she/he comes across additional information warranting such revision. A bare perusal of Regulation 16A Sub Regulation 5 of the CIRP Regulations shows that although the IRP or the RP shall provide an updated list of creditors in each class to the respective authorised representative as and when, the list is updated but the authorized representative shall have no role in receipt or verification of claims of creditors of the class he represents. Since, the authorized representative is appointed under Section 21(6A) of the IBC, 2016 and his rights and duties are defined under Section 25A of IBC, 2016 referred to Supra, we observe that under Section 21(6A)(b), the authorized representative is appointed, if the class of creditors exceeds the number specified under the law.
It referred to the CIRP Regulation 16A(5), which shows that the authorized representative shall have no role in receipt or verification of claims of creditors of the class, he represents. If the authorized representative shall have no role in receipt or verification of claims of creditors of the class, he represents, then the association or the allottees who come under the class of creditors, in our considered view, shall also have no role in receipts or verification of claims of creditors rather it is the IRP or the RP, who is to decide the claims submitted by the creditors.
