NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI BENCH (COURT-II)

IA-5003/2021, IA-3778/2022, IA-678/2022, IA-3099/2023,
IA-4569/2023, IA-6746/2023, IA-1732/2023 & IA-2959/2024
IN
Company Petition No. (IB)-456/(ND)/2018

IN THE MATTER OF:

Pallavi Joshi Bakhru ... Applicant/Financial Creditor
Versus

Universal Buildwell Private Limited … Respondent/Corporate Debtor

AND IN THE MATTER OF IA-5003/2021:

(Under Section 30(6) r/w Section 31 of IBC, 2016)
Mr. Atul Kumar Kansal,
Resolution Professional,
M/s Universal Buildwell Pvt. Ltd.
SCO-61, 3rd Floor, Old Judicial Complex,
Civil Lines, Gurgaon-122001 … Applicant

AND IN THE MATTER OF IA-3778/2022:

(Under Section 60(5) of IBC, 2016 r/w Rule 11 of NCLT Rules, 2016)
HDFC Bank Limited,
Ms. Deepti Bhardwaj
(Authorized Legal Manager),
HDFC Bank House,
Senapati Bapat Marg,
Lower Parel (West), Mumbai-400013 … Applicant

Versus
Mr. Atul Kumar Kansal,
Resolution Professional,
M/s Universal Buildwell Pvt. Ltd.
SCO-61, 3rd Floor, Old Judicial Complex,
Civil Lines, Gurgaon-122001 … Respondent

AND IN THE MATTER OF IA-3099/2023:

(Under Section 60(5) of IBC, 2016)

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 1 of 148
Kotak Mahindra Bank Limited
D-10, Local Shopping Centre,
Vasant Vihar, New Delhi-110057 … Applicant/Objector

Versus
Mr. Atul Kumar Kansal,
Resolution Professional,
M/s Universal Buildwell Pvt. Ltd.
SCO-61, 3rd Floor, Old Judicial Complex,
Civil Lines, Gurgaon-122001 … Respondent

AND IN THE MATTER OF IA-2959/2024:

(Under Section 60(5) of IBC, 2016 r/w Rule 11 of NCLT Rules, 2016)
Shyam Kishan Saraf
7/15, Forest Lane, Neb Sarai Extension,
New Delhi-110068 … Applicant No. 1

Banwari Lal Saraf

7/15, Forest Lane, Neb Sarai Extension,
New Delhi-110068 … Applicant No. 2

Versus
Mr. Atul Kumar Kansal,
Resolution Professional,
M/s Universal Buildwell Pvt. Ltd.
SCO-61, 3rd Floor, Old Judicial Complex,
Civil Lines, Gurgaon-122001 … Respondent

AND IN THE MATTER OF IA-678/2022:

(Under Section 60(5) of IBC, 2016 r/w Rule 11 of NCLT Rules, 2016)

M/s Grace Steel Private Limited

Mr. Bhuvnesh Sarawat (Director)
158A, DDA Flats,
Ghazipur, New Delhi-110027 … Applicant

Versus
Mr. Atul Kumar Kansal,
Resolution Professional,
M/s Universal Buildwell Pvt. Ltd.
SCO-61, 3rd Floor, Old Judicial Complex,
Civil Lines, Gurgaon-122001 … Respondent

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 2 of 148
AND IN THE MATTER OF IA-1732/2023:

(Under Section 60(5) of IBC, 2016 r/w Rule 11 of NCLT Rules, 2016)
1. Mr. Jeetendra S Kaushal
D-4, East Azad Nagar,
Street No-5, New Delhi-110051

2. Mr. Harbhajan Singh

11-A/69, Lajpat Nagar,
New Delhi-110024

3. Mr. Darpan Ghai

(Legal Heir of Late Mr. Ravin Chander Ghai)
F-1/20, Krishna Nagar,
Delhi-110051

4. Mrs. Vandana Bhatnagar

C-9/9153, Vasant Kunj,
New Delhi-110070

5. Mr. Sushil Chander Khanna

W-15/32, Western Avenue,
Lane W-15, Sainik Farms, Delhi-110062

6. Mrs. Neelam Khanna

W-15/32, Western Avenue,
Lane W-15, Sainik Farms, Delhi-110062

7. Mr. Ravinder Kumar Ghai

F-5/17, Krishna Nagar,
Delhi-110051

8. Mr. Y. Puran Kumar

132, Sector 24, Chandigarh-160023 … Applicants

Versus
Mr. Atul Kumar Kansal,
Resolution Professional,
M/s Universal Buildwell Pvt. Ltd.
SCO-61, 3rd Floor, Old Judicial Complex,
Civil Lines, Gurgaon-122001 … Respondent

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 3 of 148
AND IN THE MATTER OF IA-6746/2023:

(Under Section 60(5) of IBC, 2016 r/w Rule 11 of NCLT Rules, 2016)

M/s Seriatim Enterprises LLP

Mr. Sanjay Dhody, (Partner)
F-70, GF, Poorvi Marg,
Vasant Vihar, New Delhi-110057 … Applicant
Versus
Mr. Atul Kumar Kansal,
Resolution Professional,
M/s Universal Buildwell Pvt. Ltd.
SCO-61, 3rd Floor, Old Judicial Complex,
Civil Lines, Gurgaon-122001 … Respondent

AND IN THE MATTER OF IA-4569/2023

(Under Section 60(5) of IBC, 2016 r/w Rule 11 of NCLT Rules, 2016)

Mrs. Aneeta Gupta

E-6/1, Krishna Nagar,
Delhi-110051 … Applicant
Versus

Mr. Atul Kumar Kansal,

Resolution Professional,
M/s Universal Buildwell Pvt. Ltd.
SCO-61, 3rd Floor, Old Judicial Complex,
Civil Lines, Gurgaon-122001 … Respondent

Under Section: 7 of IBC, 2016

Order Delivered on: 07.03.2025

CORAM:
SH. ASHOK KUMAR BHARDWAJ, HON’BLE MEMBER (J)
SH. SUBRATA KUMAR DASH, HON’BLE MEMBER (T)

PRESENT:
For the Applicant : Adv Dhruv Gupta in IA-3778/2022. Adv. Niraj Kumar, Adv.
Rajeev Verma in IA-2959/2024.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 4 of 148
For the RP : Adv. Swapnil Gupta, Adv. Vaibhav Mendiratta, Adv. Sajal
Jain, Adv. Abhinav Mishra, Mr. Atul RP in person.

For the SRA : Sr. Adv. P. Nagesh, Adv. Harshal Kumar, Adv. Gaurav
Verma, Adv. Himanshu.

For the Kotak : Adv. Sanjay Bhatt, Adv. Sarthak Bhandari in IA-3099/
Mahindra Bank 2023, IA-5003/2021.

ORDER
IA-5003/2021, IA-3778/2022, IA-678/2022, IA-3099/2023, IA-4569/2023,

IA-6746/2023, IA-1732/2023 & IA-2959/2024: The IA-5003/2021 has been

preferred under Section 30(6) r/w Section 31 of IBC, 2016 seeking approval of

the Resolution Plan qua the Corporate Debtor submitted by Universal Aura

Welfare Association, Universal Greens Buyers Association and Universal

Business Park Owners Association (‘Resolution Applicant’) as approved by

members of Committee of Creditor (‘CoC’) unanimously with 70.44% voting in

the 18th meeting of CoC held on 08.09.2021.

2. Stating succinctly, the captioned main petition CP(IB)-456/ND/ 2018, was

filed by Ms. Pallavi Joshi Bakhru against M/s Universal Buildwell Private Limited

(‘Corporate Debtor’) under Section 7 of IBC, 2016 which was admitted to

Corporate Insolvency Resolution Process (CIRP) vide order dated 03.07.2018 qua

the Corporate Debtor and the CIRP commenced. Mr. Atul Kumar Kansal

(‘Applicant’) appointed as IRP in terms of the admission order, was later

confirmed as RP in the 3rd CoC meeting held on 12.09.2018.

3. Thereafter, the Applicant/RP filed an application bearing I.A. No.

1550/2019 under Section 30(6) of the Code before this Tribunal seeking

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 5 of 148
approval of the resolution plan which was disposed of vide order dated

11.06.2021 with certain direction issued to CoC and Resolution Applicant. The

relevant excerpt of the order dated 11.06.2021 reads thus:-

“49. Now, in the light of position of law settled by the Hon'ble Supreme
Court (Supra), we consider the contention of Mr. Sumant Batra, Advocate
and we notice that the amount proposed to be paid in the Resolution Plan
is approved by the CoC. Under Section 30(2)(b) of IBC read with Section
53 of IBC, 2016, it is the duty of the Resolution Professional to examine
the Resolution Plan, whether the distribution to the Creditors is made in
terms of the provisions of law and Regulations, thereafter the Resolution
Professional shall place the same before the Committee of the Creditors
u/s 30(3) IBC 2016 for its approval. The COC after considering the
feasibility and viability, the manner of distribution proposed, may
approve the Plan by not less than 66% of voting share u/s 30(4) of the
IBC 2016. It is the commercial wisdom of the CoC to determine what
amounts are to be paid to different classes and sub classes of creditors
in accordance with the provisions of the Code and the Regulations made
thereunder. It is seen that while deciding the amounts in the instant case,
the CoC has considered the liquidation value placed by the Resolution
Professional as well as the Resolution Applicant as mentioned in
aforementioned paragraphs. Since the units, that have already been
sold, are no longer an asset of the Corporate Debtor and consequently
cannot be liquidated, their liquidation value has been provided as NIL.
The COC after considering the same, approved the amounts proposed to
be paid to Kotak Mahindra Bank Limited, Kotak Mahindra Prime Limited
and similarly, to DHFL. Hence, we find, No force in the contention raised
by the Ld. Council for the Objectors That the amounts which are proposed
to be paid to the DHFL, Kotak Mahindra Bank Limited and Kotak
Mahindra Prime Limited are contrary to the provision of Section 30(2)(b)
of the IBC read with Section 53(1) of the IBC, 2016.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 6 of 148
 50. However, we notice there is significant differences between the
liquidation value submitted by the Two Valuers and valuation asssessed
by the Resolution Professional and Resolution Applicant, therefore, we
think it proper, to leave the matter upon the COC to reexamine this issue
and if the properties/infrastructure in the projects of the corporate debtor
is available for sale/disposal, the COC may consider taking steps for
suitable correction of the Liquidation value of all the projects and
subsequently, ask the Resolution Applicant to acccount for the same in
the Resolution Plan..

51. So far as the next contention raised by the Ld. Counsel appearing
for the DHFL, Kotak Mahindra Bank Limited and Kotak Mahindra Prime
Limited that that they are entitled to get the payment only in monetary
terms is concerned, for this too, we would like to refer to the relevant
paragraphs of the decision of Hon'ble Supreme Court in Jaypee Case
(Supra), which are quoted below: -

“121.2. We would hasten to observe that in case a

dissenting financial creditor is a secured creditor and a
valid security interest is created in his favour and is
existing, the entitlement of such a dissenting financial
creditor to receive the amount payable could also be
satisfied by allowing him to enforce the security interest, to
the extent of the value receivable by him and in the order of
priority available to him. Obviously, by enforcing such a
security interest, a dissenting financial creditor would
receive payment to the extent of his entitlement and that
would satisfy the requirement of Section 30(2)(b) of the Code.
In any case, that is, whether by direct payment in cash or
by allowing recovery of amount via the mode of enforcement
of security interest, the dissenting financial creditor is
entitled to receive the amount payable in monetary terms
and not in any other term.

122. The indications as emerging from the text of other

provisions as also from the scheme of the Code, are to the
effect that the resolution applicant, with approval of
resolution plan, is to proceed on a clean slate rather than
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 7 of 148
 carrying the cargo of such debts which need to be satisfied
(to the extent required) and jettisoned. The expressions
payment and amount to be paid, when read in the context
and on the canvass of the objects and purposes of the Code,
in our view, these expressions only convey their ordinary
meaning, as understood in ordinary business parlance, that
is, delivery of money alone; and there is no reason to
construe these expressions to be conveying the meaning of
delivery of money or its equivalent.

123. A good length of arguments on behalf of IRP are

devoted to the stand that, what CoC considers in sub-
section (4) of Section 30 is the manner of distribution
proposed; and such manner of distribution ought to be fair
and equitable, as explained in Explanation 1 to clause (b) of
Section 30(2). It is contended that if legislature intended the
word payment to have a prescriptive meaning, that is,
payment by way of payment of money only, there would
have been no need to add Explanation 1 to clause (b) which
provides that distribution under clause (b) to operational
and dissenting financial creditors shall be fair and
equitable because in such a case, the distribution would
only mean a crystallised sum of money with no room to test
if distribution was fair and equitable. The argument is,
again, of stretching the plain words beyond their real intent
and meaning. The said Explanation is for removal of doubts
and for clarification that distribution in terms of clause (b)
shall be fair and equitable to the creditors covered
thereunder that is, operational and dissenting financial
creditors. This Explanation appears to have been
necessitated for the reason that quantification of the
minimum amount payable under clause (b) of Section 30(2)
is in the realm of certain guesswork or estimate with
reference to the distribution envisaged by Section 53 of the
Code. This Explanation cannot and does not provide
meaning to the expressions payment and amount to be paid.
These and other arguments of similar nature, could only be
rejected.

123.1. A submission made on behalf of IRP suggesting

estoppel against the dissenting financial creditor for
having not raised the issue in the meeting of the Committee
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 8 of 148
 of Creditors also remains baseless. This is for the simple
reason that no estoppel could operate against the statutory
right of the dissenting financial creditor to receive payment
in terms of Section 30(2)(b) of the Code.

123.2. The submission that commercial banks are

permitted by the Banking Regulations Act, 1949 to swap the
debt for land and equity has its own shortcomings, rather
shortfalls. The expressions payment and amount to be paid
and amount payable as occurring in Section 30(2) and
Regulation 38(1) cannot be interpreted only for the purpose
of banks as financial creditors; the provisions refer to
financial creditors as such and it would be too far stretched
to say that these expressions may have different meanings
for different financial creditors in the manner that a
financial creditor who could accept payment by any mode
other than money could be paid by that mode and the other
financial creditors who cannot accept anything except
money shall be receiving payment in cash. This kind of
interpretation would not only be reading words but even
phrases and provisos in the statutory provisions, which is
entirely impermissible.

123.3. Similarly, the suggestion that the Government and

the Governmental bodies, which are not permitted by law to
swap debt with equity or land will have to be paid by way
of money and to that extent, the meaning of payment in the
first part of clause (b) of Section 30(2) will have contextually
different meaning, is, again, seeking to provide multiple
sub-sects of the mode of payment, whereas no such
differentiation or classification is indicated in the
provisions under reference or in any other provision
contained in the Code.

123.4. The suggestion about prejudice being caused to the

assenting financial creditors by making payment to the
dissenting one has several shortcomings. As noticeable, in
the scheme of IBC, a resolution plan is taken as approved,
only when voted in favour by a majority of not less than 66%
of the voting share of CoC. Obviously, the dissenting sect
stands at 34% or less of the voting share of CoC. Even when
the financial creditors having a say of not less than 2/3rd
in the Committee of Creditors choose to sail with the
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 9 of 148
 resolution plan, the law provides a right to the remainder
(who would be having not more than 34% of voting share)
not to take this voyage but to disembark, while seeking
payment of their outstanding dues. Even this
disembarkment does not guarantee them the time value for
money of the entire investment in the corporate debtor;
what they get is only the liquidation value in terms of
Section 53 of the Code. Of course, in the scheme of CIRP
under the Code, the dissenting financial creditors get,
whatever is available to them, in priority over their
assenting counterparts. In the given scheme of the statutory
provisions, there is no scope for comparing the treatment to
be assigned to these two divergent sects of financial
creditors. The submissions made on behalf of assenting
financial creditors cannot be accepted.

123.5. The other submissions and counters with reference

to the phraseology of Section 8 of the Code do not require
much dilation because, the said provision essentially
relates to the dues of an operational debtor and the steps
envisaged before commencement of insolvency resolution
process. Nevertheless, payment for the purpose of the said
provision is also of money transfer; and not by any other
mode.

124. To sum up, in our view, for a proper and meaningful

implementation of the approved resolution plan, the
payment as envisaged by the second part of clause (b) of sub-
section (2) of Section 30 could only be payment in terms of
money and the financial creditor who chooses to quit the
corporate debtor by not putting his voting share in favour
of the approval of the proposed plan of resolution (i.e., by
dissenting), cannot be forced to yet remain attached to the
corporate debtor by way of provisions in the nature of
equities or securities. In the true operation of the provision
contained in the second part of sub-clause (ii) of clause (b)
of sub-section (2) of Section 30 (read with Section 53), in our
view, the expression payment only refers to the payment of
money and not anything of its equivalent in the nature of
barter; and a provision in that regard is required to be made
in the resolution plan whether in terms of direct money or
in terms of money recovery with enforcement of security
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 10 of 148
 interest, of course, in accordance with the other provisions
concerning the order of priority as also fair and equitable
distribution. We are not commenting on the scenario if the
dissenting financial creditor himself chooses to accept any
other method of discharge of its payment obligation but as
per the requirements of law, the resolution plan ought to
carry the provision as aforesaid.

52. In the light of aforesaid decision, when we consider the

submissions, we find that herein the case in hand, although the amount
which these three objectors are entitled to get has been quantified in the
plan but the payment is proposed to be made only on happening of the
certain events.

53. So far as the DHFL is concerned they will get the amount from the
sale proceeds of the unsold inventory after construction and completion
of the project. Similarly, for the payment of Rs. 3 crore proposed to be
paid to the Kotak Mahindra Bank Limited and Kotak Mahindra Prime, no
time frame is given for making the payment. Therefore, they will remain
attached with the Corporate Debtor till the project gets completed.
Therefore, in view of the decision (Supra) upon which the objectors have
placed reliance, the dissenting financial creditors, who have chosen to
quit the Corporate Debtor by not putting their voting share in favour of
the proposed plan of Resolution, cannot be compelled to remain attached
with the Corporate Debtor.

54. Therefore, for the reasons discussed above, in our considered

view, the Resolution plan is violative of the provision of Section 30(2)(ii)(b)
read with Section 53 of the IBC, 2016 and it is also contrary to the
decision of the Hon'ble Supreme Court in the matter of Jaypee Kensington
Boulevard Apartments Welfare Association & Ors. Vs. NBCC (India) Ltd.
& Ors. in Civil Appeal No. 3395 of 2020.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 11 of 148
 55. Hence, we find force in the contention raised on behalf of the
aforesaid dissenting financial crditors/ objectors, that they are entitled
to get the payment in terms of money only.

56. So far as the other contention raised by the objector's counsel that
the Resolution Plan is not submitted in terms of the Code and
Regulations, this issue has also been discussed by the Hon'ble Supreme
Court in the Jaypee Case (Supra), wherein the Hon'ble Supreme Court
has held that once the resolution plan is approved by the CoC, it is
beyond the scope of the Adjudicating Authority to re-examine whether
the Resolution Plan was submitted in accordance with the Code or
Regulations.

57. Hence, we are of the considered view that this contention of the
Ld. Counsel for the Objectors is beyond the ambit of Section 30(2)(b) of
the IBC, 2016. Accordingly, we hereby reject this contention of the Ld.
Counsel for the Objectors.

58. For the reasons discussed above, we are of the considered view
that except the objection that DHFL, Kotak Mahindra Bank Limited and
Kotak Mahindra Prime Limited are entitled to get their payments in
monetary terms only, no other objections is liable to be accepted. Hence,
all other objections raised on their behalf are rejected.

X X X

68. In sequel to the discussion above, we conclude the matter in the

following manner:

a) So far as the objections raised by the ‘other objectors’ except DHFL,

Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited
are concerned, we found no merit in their applications in the light
of the decision of the Hon'ble Supreme Court in the Jaypee Case
(Supra) on which the objectors had placed reliance. We have
accordingly rejected their Objections and Dismissed the
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 12 of 148
 applications bearing no. CA/1686/2019, CA/1687/2019,
CA/52/2020, IA/2664/2020 and IA/5533/2020.

b) As we held in the previous paragraphs that in the light of the

decision of the Hon'ble Supreme Court in the Jaypee Case (Supra),
the DHFL is entitled to get the amount in terms of money and they
will not be compelled to remain attached with the Corporate Debtor
till the project is completed. In our considered view, the mode of
payment to them is contrary to the provision of law as well as the
decision of Hon'ble Supreme Court in Jaypee Case (Supra) and to
that extent it requires to be modified. Similarly, Kotak Mahindra
Bank Limited and Kotak Mahindra Prime Limited are also entitled
to get the payment of Rs. 3 Crore within a specified period. The
period, which is not mentioned in the present plan, needs to be
specified.

c) As observed by the Hon'ble Supreme Court in the Jaypee Case

(Supra), the Adjudicating Authority is not empowered to modify the
Resolution Plan, the only remedy available before the Adjudicating
Authority is to remit the matter to the CoC to modify the resolution
plan.

d) So, under such circumstances, we have no option but to remit the

Resolution Plan to the CoC to modify the Resolution Plan as regards
to the payment of amounts in terms of money within a specific
Period in the light of the decision of the Hon'ble Supreme Court in
the Jaypee Case (Supra).

69. We further notice that in the instant case, the period of CIRP has
already expired on 15.11.2019 and on the same day, the application for
approval of Resolution Plan, which is under consideration, was filed.
Though the maximum period for completion of the Corporate Insolvency
Resolution Process as per second proviso of Section 12(3) of IBC, 2016 is

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 13 of 148
 330 days, in view of the decision of Committee of Creditors Essar
Steel India Limited Vs. Satish Kumar Gupta and Ors. in Civil
Appeal No. 8766-67 of 2019 reported in_2020 (8) SCC 531, the
said provision is not mandatory. In para 79 of that judgement, the
Hon'ble Supreme Court had held that “However, on the facts of a
given case, if it can be shown to the Adjudicating Authority and/or
Appellate Tribunal under the Code that only a short period is left
for completion of the insolvency resolution process beyond 330
days, and that it would be in the interest of all stakeholders that
the corporate debtor be put back on its feet instead of being sent
into liquidation”.

70. Therefore, in such exceptional circumstances, when we are remitting

the resolution plan back to CoC for modifications in terms of payments,
as specified above, to the objectors namely, DHFL, Kotak Mahindra Bank
Limited and Kotak Mahindra Prime Limited, we think it proper to extend
the period of CIRP for 60 days from the date of this order after excluding
the period from the date of filing of this application (IA 1550/2019) i.e.
15.11.2019 till the passing of this order.

71. Accordingly, we hereby the extend the CIRP by 60 days beyond

the period of 330 days after excluding the period from the date
of filing the present application bearing No. IA/1550/2019 i.e.
15.11.2019 till the passing of this order. The resolution professional
is directed to inform and also hand over a copy of this order to the
Resolution Applicant to modify the Resolution Plan in the light of
aforesaid direction. He is further directed to convene the meeting of
CoC within the extended period of CIRP and place the modified
Resolution Plan before the CoC for approval. It is, however, made
clear that except for the modification in payment conditions
relating to the objectors namely, DHFL, Kotak Mahindra Bank
Limited and Kotak Mahindra Prime Limited, which has to be
made in terms of money within a specified period and re-
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
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 examination of Liquidation value as specified in the
aforementioned paragraph, while discussing this issue, no other
issue shall be raised by any objector nor decided by the CoC.”

4. The aforementioned order passed by this Tribunal was assailed by Kotak

Mahindra Bank Limited and Kotak Mahindra Prime Limited before Hon’ble

NCLAT by filing Company Appeal (AT)(Ins.) No. 661 of 2021. The relevant excerpt

of the judgment of Hon’ble NCLAT reads thus:-

“6. Before we proceed further, we may notice paragraph 49 and 50 of the

impugned order, which paragraphs have been prayed to be set aside by
the Appellant. The Appellants have also prayed for a direction to the CoC
to consider the Valuation Report submitted by the Registered Valuers
while determining the valuation of assets of the Corporate Debtor and
computing the liquidation value payable to the Appellant Nos.1 and 2.
Paragraph 49 and 50 of the impugned order is as follows:

“49. Now, in the light of position of law settled by the Hon’ble

Supreme Court (Supra), we consider the contention of Mr.
Sumant Batra, Advocate and we notice that the amount
proposed to be paid in the Resolution Plan is approved by the
CoC. Under Section 30(2)(b) of IBC read with Section 53 of IBC,
2016, it is the duty of the Resolution Professional to examine
the Resolution Plan, whether the distribution to the Creditors
is made in terms of the provisions of law and Regulations,
thereafter the Resolution Professional shall place the same
before the Committee of Creditors u/s 30(3) IBC 2016 for its
approval. The COC after considering the feasibility and
viability, the manner of distribution proposed, may approve
the Plan by not less than 66% of voting share u/s 3(4) of the
IBC 2016. It is the commercial wisdom of the CoC to determine
what amounts are to be paid to different classes and sub
classes of creditors in accordance with the provisions of the
Code and the Regulations made thereunder. It is seen that
while deciding the amounts in the instant case, the CoC has
considered the liquidation value placed by the Resolution
Professional as well as the Resolution Applicant as mentioned
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 in aforementioned paragraphs. Since the units, that have
already been sold, are no longer an asset of the Corporate
Debtor and consequently cannot be liquidated, their
liquidation value has been provided as NIL. The COC after
considering the same, approved the amounts proposed to be
paid to Kotak Mahindra Bank Limited, Kotak Mahindra Prime
Limited and similarly, to DHFL. Hence, we find, no force in the
contention raised by the Ld. Counsel for the Objectors that the
amounts which are proposed to be paid to the DHFL, Kotak
Mahindra Bank Limited and Kotak Mahindra Prime Limited
are contrary to the provision of Section 30(2)(b) of the IBC read
with Section 53(1) of the IBC, 2016.
50. However, we notice there is significant differences
between the liquidation value submitted by the Two Valuers
and valuation assessed by the Resolution Professional and
Resolution Applicant, therefore, we think it proper, to leave the
matter upon the COC to reexamine this issue and if the
properties/ infrastructure in the projects of the corporate
debtor is available for sale/ disposal, the COC may consider
taking steps for suitable correction of the Liquidation value of
all the projects and subsequently, ask the Resolution
Applicant to account for the same in the Resolution Plan.”

X X X
19. The Valuation Report of both the Valuers, thus, indicate that they
have valued the super area available in the project Universal Business
Park excluding the area which was covered by Conveyance Deed. The
Valuers proceeded on the assumption that areas, which have been
conveyed no title is left with the Corporate Debtor and rest of the area can
be included in the valuation. The RP in its reply in the Appeal as well as
in the reply before the Adjudicating Authority has brought the facts on the
record, indicating that apart from conveying of the super area, the
Corporate Debtor has also entered into Builder Buyer’s Agreement with
the allottees and the BBA with the allottees with regard to super area in
Universal Business Park was 1,65,115 sq. ft. In the reply filed by RP in
the Appeal in paragraph 8, detailed facts have been reported, which is to
the following effect:

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 X X X
22. From the materials brought on record, it is clear that area which is
covered by Conveyance Deed was 89,706 sq. ft., whereas total saleable
area of the Universal Business Park was 2,15,915 sq. ft. Pleadings of RP
was categorical that by BBA, area of 165,115.53 sq. ft. was allocated,
which facts have not been disputed by the Appellants. The Appellants
case rather is that execution of BBA does not amount to transfer/ sale
under the provisions of the Transfer of Property Act, which plea has been
specifically taken in paragraph 14 as extracted above. There can be no
doubt about legal position that title is conveyed when Conveyance Deed
is executed, but certain rights accrue to homebuyers under the BBA,
which rights have been recognized by law Courts including the Hon’ble
Supreme Court. Promoter, who has entered into a BBA with allottee and
allotted a particular flat and received the payment has no right to transfer
the same. Hence, the said unit is not available for the Corporate Debtor to
again transfer and realise its value. From the pleadings on record, we
thus, are of the view that allocation area of 165,115.53 sq. ft. is a matter
of record and has to be accepted, since no other facts or material come on
record.

23. We have noticed that in the Valuation Report, both the Valuers have
proceeded to value the super area, which was left after deducting the
area conveyed. The Valuers proceeded on the premise that the Corporate
Debtor has no ownership with respect to the area, which has been
conveyed and rest of the area can be valued for the purpose of valuation
of the Corporate Debtor. On the record, the RP has given details of name
of allottees, which were given BBA with the date of BBA. Annexure R-1 to
the reply contains the details of BBA of Ground Floor and other Floors
with the name of allottees and the date of BBA. All the BBA, which have
been captured in Annexure R-1 are prior to September 2010. The details
of areas sold through Conveyance Deed has also been given, which areas
have already taken note by the Valuers. The stand taken by the RP and

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 Resolution Applicant is that liquidation value of the Appellant has been
treated as NIL, since on the date, the valuation was done, there was no
super area left, which could be monetized for the Corporate Debtor. The
Corporate Debtor has sold excess area both by Conveyance Deed and
BBA. We are satisfied that by the BBA, executed prior to September 2010,
when the charge and mortgage was created by Promoters in the project
Universal Business Park, all areas were sold. The Valuers, technically
were right in taking a view that those areas, which has been conveyed
by Promoters, they do not have ownership, however, the Valuers
proceeded to take into consideration the areas with regard to which no
Conveyance Deed was executed to be the assets of the Corporate Debtor.

24. When we look into reality, which is apparent from the materials on
record, it is clear that with regard to Universal Business Park, entire area
was sold by Conveyance Deed and by BBA to the allottees and the
Promoters have received the money through the Conveyance Deed and
BBA and after execution of the BBA, the allottees acquired the right to
receive possession of the units for which payments have been made.

25. In this context, we may notice the judgment of the Hon’ble Supreme
Court, where the Hon’ble Supreme Court had occasion to consider the
nature of right, which accrue through a BBA to allottee and the protection,
which homebuyers are required from the Courts of Law. We may refer to
the judgment of the Hon’ble Supreme Court in Bikram Chatterji v.
Union of India (2019) 19 SCC 161, where the Hon’ble Supreme Court
had occasion to consider housing and real estate allotment, Sale Deed,
transfer of flats by builders/ developers to homebuyers. The Hon’ble
Supreme Court was considering the real estate Project namely – Amrapali
Group. Writ petitions under Article 32 were filed by homebuyers praying
for various reliefs from the Hon’ble Supreme Court. In the above context
Hon’ble Supreme Court while considering the BBA made following
observation in paragraph 133 and 134 of the judgment:

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 “133. The agreement initially executed in favour of homebuyers
to purchase flats may not create any right in the property in
praesenti, it will be only on the execution of the registered
document that title is going to be perfected, but investment in
project is only of homebuyers. In this case, as they have paid
money invested in projects, it is for the courts to do complete
justice between the parties and to protect the investment so made
and interests of homebuyers and to ensure that they get the
perfect title and the fruits of their hard earned money and lifetime
savings invested in the projects.

134. On behalf of Bank of Baroda, learned Senior Counsel

submitted that the agreement of promoter/ builder with
homebuyers is unregistered as such, no right has been created in
the immovable property in view of the provisions contained in
Section 49 of the Registration Act. The submission ignores and
overlooks the provisions of RERA which intends to prevent such
frauds on homebuyers and ensure completion of projects and that
of the agreement between promoters and buyers. There are
various rights under the agreement as well as under RERA. The
agreement entered into at the time of allotment is the basis of the
investment in the projects made by homebuyers, it cannot be said
to be a scrap of paper. It is their valuable investment which is
required to be protected and cannot be permitted to be taken
away by builder or secured creditors in an illegal manner. The
provisions of Section 17 of the Registration Act no doubt provide
that a document of title requires compulsory registration, no doubt
registered document has to be executed that also has to be taken
care of by the Court so as to protect the interest of homebuyers.”

26. In the above case before the Hon’ble Supreme Court, the Banks, who
had security interest contended that they have agreements with the
Promoters. In reference to the claim of the Banks regarding mortgage,
Hon’ble Supreme Court had observed that in the facts and circumstances
of the case, rights or interest of the allottees are not affected by the
mortgage created by the Bankers. In paragraph 136 of the judgment,
following has been held:
“136. The learned Senior Counsel on behalf of Bank of Baroda
submitted that the provisions of Section 11(4)(h) of RERA provides

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 that the promoter, after he executes an agreement for sale for any
apartment, plot or building, cannot mortgage or create a charge on
such an apartment, plot or building, as the case may be, and if
any such mortgage or charge is made or created then it shall not
affect the right and interest of the allottee who has taken or agreed
to take such apartment, plot or building, as the case may be. The
provision has a non obstante clause. As the provision has given an
overriding effect by non obstante clause, the provision is of no help
to the banks as the agreement had been by promoters with
homebuyers entered into earlier in point of time to the creation of
the mortgage. There could not have been any mortgage created
subsequently and even if validly created, it would not affect the
right and interest of the allottee as intended by RERA. Thus, the
right and interest of the allottee are safeguarded by virtue of the
provisions contained in Section 11(4)(h). As the project was
pending, the provision intends to confer a right on the allottee and
save the allottees and also their interests from such liability. Even
if the provision is held not applicable on the ground that RERA
came into force later, since there was no valid mortgage as held by
us, it was incapable of affecting the right or interest of the allottee.
Had it been ensured that the money due to Noida and Greater
Noida Authorities was paid by the promoters to the authorities, the
fraud of siphoning of money would not have taken place to the
extent it has been done. Moreover, the money borrowed from
banks has not been invested in the projects. In fact, projects
required no funding. It would be iniquitous to charge the allottees
with the bankers’ money. Thus, in the peculiar facts and
circumstances of the case, we hold that rights or interests of the
allottees are not at all affected by the mortgage created by the
bankers or by the dues of the Noida or Greater Noida Authorities.”

27. When we revert to the facts of the present case, it is clear that the
entire super area of Universal Business Pak was conveyed by Sale Deeds
and by BBA, rather, the facts indicate that total area conveyed/ allotted
was more than total area of Ground Floor and all the Floors. When area
has been allotted to homebuyers, who have also paid the amount as per
the agreement, homebuyers get an interest to receive the possession of
the unit.

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 28. The Adjudicating Authority after considering the facts in the
impugned order has considered all aspects of the matter and has
noted the facts and circumstances, which were brought by the
parties on record. The Adjudicating Authority has also noticed and
extracted the summary of the Resolution Plan in its order. In paragraph
41 of the impugned order, following has been observed:
“41. So far as the Kotak Mahindra Bank Limited and Kotak
Mahindra Prime Limited are concerned, they are proposed to be
paid Rs.3 crores on the ground that the entire area under the
Universal Business Park project has been sold and there are no
assets belonging to the Corporate Debtor left under this project.
Accordingly, the liquidation value of the assets belonging to the
Corporate Debtor under this project is shown as Nil in the Part-I of
the Resolution Plan. It is also mentioned that they have mortgage
right over the land, on which the project namely, “the Pavillion” is
situated in Sector 70A, Mauza Palra, Tehsil & Distt. Gurugram,
Haryana. As shown in the Part-II of the Resolution Plan, the project
is yet to be started and they will get realization of the amount in
the manner as stated in Part-II of the Plan.”

29. We have also noticed the caveats given by the Valuers in their
Report. The valuation of the different projects including project Universal
Business Park was with the caveats as noted above. The Valuers did not
enter into issue of encumbrance over the assets. The finding has been
recorded by the Adjudicating Authority in paragraph 49 that since the
units have already been sold, are no longer the asset of the Corporate
Debtor, hence, the liquidation value of the Universal Business Park project
is NIL. The Adjudicating Authority has rightly come to the above
conclusion after considering the facts and circumstances of the present
case. We fully concur with the observations made by the Adjudicating
Authority in paragraph 49.

30. Now, we come to the submission of the learned Counsel for the
Appellants that the Adjudicating Authority committed error in directing the
CoC to re-examine the issue of significant differences between the

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 liquidation value submitted by the two Valuers . As per statutory scheme
under the CIRP Regulations and the IBC Code, the liquidation value
arrived by the valuers serves an important factor in the entire resolution
process. The liquidation value fixed by the Valuers cannot be ignored in
the resolution process. It is true that CoC on any valid reason can take a
call to ask for any fresh valuation due to any relevant circumstances, but
the valuation done by the Registered Valuers and average of liquidation
value taken up by the Valuers serves the specific purpose and cannot be
allowed to be disregarded by the CoC. In event, it is accepted that the
CoC can change the liquidation value on its own, that may lead to
unsatisfactory results. We, thus, are of the view that liquidation value
found by the Registered Valuers cannot be allowed to be changed by the
CoC. We, thus, are satisfied that direction by Adjudicating Authority to
CoC to re-examine the issue of significant differences between liquidation
value submitted by two Valuers was uncalled for. We may however,
hasten to add that in the present case, liquidation value, which was to be
ascribed to the Appellant was an issue, which cannot be said to have
determined by the Valuers in their Valuation Report. Valuers in their
Valuation Report has added a caveat, which we have already noticed,
which clearly left the issue to be determined while allocating the amounts
to be paid to the dissenting Financial Creditors. Thus, in the facts of
present case, we having concurred with the finding of the Adjudicating
Authority that liquidation value of the Appellant was NIL, we see no
reason to maintain the direction issued in paragraph 50.

31. In view of the foregoing discussions, we are of the view that

observations and directions in paragraph 49 needs to be affirmed,
whereas directions issued in paragraph 50, deserves to be deleted.
We are further of the view that relief (b) and other reliefs claimed
in the Appeal by the Appellants cannot be granted.

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 32. In result of the foregoing discussions, we dismiss the Appeal
subject to deletion of paragraph 50 of the impugned order dated
11.06.2021. Parties shall bear their own costs.”

5. The Applicant/RP apprised the CoC regarding the order passed by this

Tribunal and placed the order before it in the 16th meeting held on 29.06.2021

wherein Mr. Jayant Mehta, Senior Counsel was proposed to be engaged for legal

opinion particularly in matter of re-examination of liquidation value. Relevant

excerpt of the legal opinion of Mr. Jayant Mehta, Senior Counsel placed before

the CoC in its 17th meeting held on 05.08.2021 reads thus:-

“21.1.5. Therefore the calculation of liquidation value must exclude the

value of such number of units, which are already subject to ATSs/BBAs
and it is only any balance consideration payable in respect thereof and
the unsold units that can be taken as the asset of the corporate debtor that
can be realized by way of sale thereof.

X X X

21.2.2 Therefore, only the units which are unsold should be treated as the
realizable asset of the corporate debtor. For the sold units, the value to the
corporate debtor can only be the difference if any between the receivable
from the unsold units and the cost of construction as any purchaser of the
corporate debtor, even in liquidation, would not be able to purchase the
property free of rights created by the existing ATSs/BBAS.”

6. In the 17th meeting itself, the CoC noted that there is no need to have fresh

valuation as it is not the subject matter of dispute and that only issue is to re-

examine the liquidation value payable to secured creditors in view of the fact that

there was unsold inventory or limited unsold inventory available with the

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Corporate Debtor in event of liquidation. The issue of overselling of area, non-

obtaining of NOC from secured creditors, etc. were also discussed in the

aforementioned meeting. Further, the Resolution Applicant proposed to make

arithmetic changes and re-submit the resolution plan. The agenda regarding

seeking extension of CIRP period was put to vote and approved by 93.36% voting

in favour.

7. Ergo, an application for extension of CIRP period by 60 days could be

preferred by the Applicant/RP wherein CIRP period was extended by 45 days i.e.

till 24.09.2021 in terms of order dated 07.09.2021 passed by this Tribunal.

8. The resolution plan was placed before the CoC for approval in its 18th CoC

meeting held on 08.09.2021, in terms of Section 30(4) of the Code. The relevant

excerpt of the resolution passed by the CoC in said meeting and the results of e-

voting noted therein reads thus:-

“Further resolved that resolution professional be and is hereby authorised

to file an application for approval of resolution plan before Hon'ble
National Company Law Tribunal in terms of Section 30(6) of Insolvency &
Bankruptcy Code, 2016.”
X X X

A consolidated result of entire voting after considering provisions of

Section 25A(3A) of Insolvency and Bankruptcy Code, 2016 is presented
below;

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 Result of Voting:-
The above resolution was required to be passed by a vote of not less than
66 % of voting share of the financial creditors. The above resolution was
voted 70.44% voting in favour of resolution. Hence, the above resolution
stood passed.”

9. It is submitted by the Applicant/RP, that the CoC in its 17th and 18th

meeting deferred to decide on estimate of amount required to meet liquidation

cost and liquid assets available to meet the same in terms of Regulation 39B of

CIRP Regulations; sale of CD as going concern in terms of Regulation 39C of

CIRP Regulations; and determination of fees of liquidator in terms of Regulation

39D of CIRP Regulations.

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10. The Applicant/RP in terms of Section 30(2)(b)(ii) of the Code calculated the

liquidation value for the Financial Creditors on the basis of unsold area available

in the project which they financed. However, the Secured Financial Creditors

have not concurred with this view of the Applicant/RP. The Liquidation Value

payable to the Secured Financial Creditors after taking the unsold area in

respective project into the consideration reads thus:-

11. It has been espoused by the Applicant/RP that Applicant in terms of the

directions issued by this Tribunal vide order dated 11.06.2021, the Resolution
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Plan has been modified by the SRA and in the modified plan, provision has been

made for payment to DHFL and Kotak Bank. The revised provision made in

consonance with the order passed by this Tribunal reads thus:-

a. On approval of the Resolution Plan by the Adjudicating Authority, DHFL

shall be paid Rs. 44.81 Crores on or before 180 days of approval of the

resolution plan.

b. Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited shall

be paid Rs. 3 Crores on or before 180 days of approval of resolution plan

by adjudicating authority.

The addendum to the plan providing as above has been reproduced herein below

in later part of the order. It is also the case of the RP that the timeline introduced

in payment would ensure the payment in terms of the plan would be made to

dissenting financial creditors in priority.

12. The Applicant has submitted following Bank Guarantee as Performance

Security for which renewal is in process:-

13. The details regarding fair value and liquidation value of the CD, the

distribution of the resolution plan amount amongst the stakeholders, and

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compliances are given in the “Compliance Certificate” filed by the Applicant/RP

in Form ‘H’ as provided under Regulation 39(4) of the CIRP Regulations, annexed

as Annexure-J to the application, relevant excerpt of which is reproduced

hereinbelow for the purpose of instant reference:-

*the liquidation value attributable to the financial creditors after

taking into consideration the unsold area in the respective project is
as under:

X X X

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IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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 * Apart from this amount, as per Part-2 of resolution plan, Kotak
Mahindra Bank Limited and Kotak Mahindra Prime Limited will also
be part of distribution from remainder of assets of corporate debtor as
per Section 53 of Insolvency & Bankruptcy Code, 2016

** SIDBI will get its share out of distribution from remainder of assets
of corporate debtor as per Section 53 of Insolvency & Bankruptcy
Code, 2016 as proposed in Part-2 of resolution plan.

$ No payout has been proposed for M/s Sunflame Enterprises Limited

under the plan but it has been proposed that Sunflame Enterprises
Limited shall be treated as allottee for all the units mortgaged to it
and shall be given treatment accordingly.

$$ Resolution applicant is proposing delivery of flats / units to

allottees of 3 projects namely, Universal Aura, Universal Greens and
Universal Business Park and proposing claimants of other projects
namely, Universal Square, The Pavillion, Universal Trade Tower and
Universal Prime shall be taken care under Part-2 of resolution plan
where liquidation for remainder of assets has been proposed and
distribution shall be in accordance with Section 53 of Insolvency &
Bankruptcy Code, 2016.

14. The financial outlay and sources of funds given in the plan reads thus:-

“SOURCE OF FUNDS

The total expenditure under the Resolution Plan is 192.27Cr. The sources
of fund for the said expenditure as detailed in the Cash Flow Projections
enclosed as Annexure- UG10 is as under:

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15. It can be seen from Page 13 of the Resolution Plan that there is a provision

contained regarding payment of CIRP cost which reads thus:-

“CIRP Cost
The total CIRP Cost till 30.09.2019 as communicated by the Resolution
Applicant is 4,94,15,653/-. The entire CIRP cost shall be paid by the three
Associations in the consortium in the ratio of the claim admitted by
Resolution professional in respect of their Project. The sharing ratio
between Universal Greens, Universal Aura and Universal Business Park
works out to 18.53%, 61.69% and 19.78% respectively (Annexure-B). As
such these three Associations shall contribute an amount of 91,56,063/-;
3,04,86,848/; and 97,72,742/- respectively. Any revision in claim ratio
due to further admission of claims by RP shall not affect allocation further.
Moreover if any enhancement in the CIRP Cost upto the date of approval
of Resolution Plan by Hon'ble NCLT, the associations undertakes to pay
the enhance amount as per their share with above mentioned CIRP cost.

The CIRP Cost if any paid by the COC members till date shall be
reimbursed under this Resolution Plan from the amount so earmarked.

The amount of CIRP Cost pertaining to the Projects under Part-II of this
plan wherein the claims are proposed to be settled after realisation of
remaining assets of Corporate Debtor shall be reimbursed to the respective
Associations/Demerged Companies on realisation of the proceeds under
Part-II of this Plan.”

16. The Resolution Plan provides for implementation schedule/sequence

which reads thus:-

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 “Implementation Schedule/Sequence
The entire construction activity will take 9 months from effective date to
get the building operational. The construction / refurbishment activities
shall be implemented as follows:-
- Approval of Resolution Plan by NCLT/ Adjudicating Authority.
- Approval from RERA if required (although main Building is constructed
no additional construction is involved)
- Approval/Extension/Transfer of License.
- Opening of Escrow account to collect funds from Unit Holders.
- Forensic Audit/Due Diligence to be undertaken by Resolution
applicant for his internal purpose

The time of 9 months after forensic audit/due diligence is subjected to

any force majeure and any time lost to any court proceedings or any
litigation.

No other financial obligation of Corporate Debtor or any interest, penalty

is put on this project except to the extent of proposed under this resolution
plan.

The effective date:-

Effective date for this resolution plan is later of the following dates:-
1. Date of approval of resolution plan
2. Date on which resolution applicant gets control and physical
possession of all assets of Universal Business Park and original title
deeds mortgaged with the banks along with all relevant papers.
3. Date on which license gets renewed or reinstate through order of
NCLT.
4. The resolution has been prepared keeping in mind the IM provided
by RP and we have done proper due diligence as duty of Resolution
Applicant before relying on the information. However, Unit holders
by virtue of affidavits/Undertakings are ready to bear the incidental
excess amount, if any.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 Effective date shall be suitably extended if there is any stay or reinstate
from NCLT or any other court that restrict implementation of resolution
plan.”

17. The Resolution Plan also contain the provisions regarding appointment of

Monitoring Agency for supervision of implementation of the Resolution Plan

which reads thus:-

“Appointment of Monitoring Agency for supervision of

implementation of the Resolution Plan:-

Resolution Applicant proposes the constitution of monitoring committee as

under to supervise the implementation of plan:-

1. A person nominated by Hon'ble NCLT (Remuneration to be decided

by Hon'ble NCLT and to be shared by all three Associations in share
of Claims).

2. A Legal professional nominated by Resolution Applicant

(Remuneration to be decided by the Resolution Applicant and to be
shared by all three Associations in share of Claims).

3. One representative from each association i.e. Universal Aura,

Universal Green, Universal Business Park.

4. One representative from lenders as nominated by them.”

18. The SRA also sought various Reliefs and Concessions enumerated at Page

21 of the Resolution Plan. Nevertheless, the SRA has given an undertaking in

form of Note that irrespective of the grant of relief and concessions by this

Adjudicating Authority, the Plan would be binding upon the Resolution

Applicant. The relevant excerpt of the undertaking in the Plan reads thus:-

“Note: All the reliefs sought by Resolution Applicant is essential for

successful and viable resolution plan but if any or all of above are not
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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 been granted by Hon'ble NCLT, it is submitted that this resolution plan
shall be binding upon resolution applicant.”

19. The Applicant/RP has placed on record Affidavit of Resolution Applicants

under Sec. 29A of the Code. The Affidavits are available at Page Nos. 259-264,

343-3533, 459-464 and 496 of Volume-3 of the application. One of the affidavits

reads thus:-

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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20. In Consolidated Undertaking submitted by Welfare Association in

Resolution Plan the SRA specifically averred that the plan is not in contravention

of any of the provisions of the law. The Clauses 1(f) of the undertaking reads

thus:-

“(f) The Resolution Plan submitted by us does not contravene any of the
provisions of law for the time being in force;”

21. The SRA has filed an Addendum dated 05.08.2021 to Resolution Plan

wherein it highlighted the modifications made in the Resolution Plan, in

pursuance to the order of this Tribunal dated 11.06.2021, which reads thus:-

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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22. The addendum further provides with Payment Matrix under the Plan

which is as follows:-

Objection filed in IA-3778/2022:

23. The captioned application has been preferred by HDFC Bank Limited

(“Applicant Bank/Objector”) seeking direction and raising objection to the

Resolution Plan filed under Section 30(6) of the Code vide IA-5003/2021.

24. The salient plea espoused in the application/written submissions are as

follows:-
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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 a. The Resolution Plan as approved by the CoC of Universal Buildwell Private

Limited (Corporate Debtor) has erroneously included the assets of

Corporate Debtor units bearing the following description: Unit Nos. 618-

626, having super area 8702 sq. ft. at 6th Floor, Universal Business Park,

Sector 66, Badshahpur, Gurgaon (collectively, “Property”).

b. The Property is owned by M/s Nayanika Holding Pvt. Ltd. (“Nayanika

Holdings”) upon which the sole and exclusive charge in the nature of

mortgage vests with the Applicant Bank/Objector.

c. The Property was purchased by Nayanika Holdings from the Corporate

Debtor under a registered Conveyance Deed dated 14.10.2015, much prior

to initiation of CIRP, which remains unchallenged till date and the

question of title to the Property in favor of Nayanika Holdings remains

established.

d. Nayanika Holdings had availed a secured Loan Facility to the tune of INR

1,05,00,00,000/- from the Applicant Bank/Objector which was secured

by way of creation of mortgage over the Property. The charge was also

registered with the ROC.

e. Initially, Nayanika Holdings paid its EMIs in accordance with the

repayment schedule but later the Applicant Bank/Objector received an

email dated 06.05.2022 written by Sanjeev Malhotra (co-borrower), acting

for and on behalf of Nayanika Holdings, seeking deferment of instalments

due and payable towards the subject loan facility citing his inability to

repay the loan on the grounds of pending litigation against the Developer-
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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 Corporate Debtor, wherein the property was unavailable for his use as a

consequence of the proceedings.

f. Aggrieved by the inclusion of the Property as an asset of the Corporate

Debtor, the Applicant Bank/Objector approached the Respondent/RP on

and around 22.07.2022 seeking release of the Property indicating that the

Property belonged to Nayanika Holdings and that the Applicant Bank/

Objector had the sole and exclusive charge thereon. In his response dated

22.07.2022, the Respondent/RP casually claimed, inter alia, that the

Resolution Plan in respect of the entire premises comprised in Universal

Business Park was approved by the COC and the same was pending

adjudication before this Adjudicating Authority further claiming that the

area sold is more than the available area and the conveyance deed was

executed without obtaining the Occupation Certificate.

g. The Applicant Bank/Objector is gravely prejudiced by the act of inclusion

of the property over which it holds a valid and subsisting charge.

h. It is trite law that NCLT is not a civil court and can only exercise the powers

within the contours of the jurisdiction prescribed by the statute. In terms

of Section 18(1)(f)(i) & (vi) of the Code read with the Explanation thereto,

IRP can take control only of ‘assets’ over which the Corporate Debtor has

‘ownership rights’. However, assets owned by third parties are specifically

excluded. Further, where the ownership is disputed, Section 18(1)(f)(vi)

provides for control over assets subject to determination of ownership by

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 a court or authority, meaning thereby that NCLT cannot decide the issue

of ownership or possession.

i. Further, a perusal of Section 25(2)(b) of the Code makes it amply clear that

whenever the Corporate Debtor has to exercise rights in judicial

proceedings, the RP cannot short-circuit the same and bring a claim before

the NCLT.

j. When the contours of NCLT’s powers are defined as noted above, no relief

in equity can be granted extending to include the Units or the area within

the Resolution Plan purely on account of difficulty in implementing the

Conveyance Deed. It is trite law that NCLT does not have jurisdiction in

equity that can operate independent of statutory provisions. Reliance is

placed on the judgment of Hon’ble Supreme Court in Pratap Technocrats

(P) Ltd & Ors vs. Monitoring Committee of Reliance Infratel Limited

& Anr (Civil Appeal No. 676 of 2021). The relevant excerpt of the judgment

reads thus:-

“25 The function of the Adjudicating Authority under Section 31

is to determine whether the resolution plan “as approved by the
CoC” under Section 30(4) “meets the requirements” under Section
30(2). If the Adjudicating Authority is satisfied that the resolution
plan, as approved, meets the requirements under sub-Section (2) of
Section 30, “it shall by order approve the resolution plan”
which shall then be binding on the Corporate Debtor and all
stakeholders, including those specifically spelt out:

“31. (1) If the Adjudicating Authority is satisfied that the

resolution plan as approved by the committee of creditors
under sub-section (4) of section 30 meets the requirements
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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 as referred to in sub-section (2) of section 30, it shall by
order approve the resolution plan which shall be binding
on the corporate debtor and its employees, members,
creditors, including the Central Government, any State
Government or any local authority to whom a debt in
respect of the payment of dues arising under any law for
the time being in force, such as authorities to whom
statutory dues are owed, guarantors and other
stakeholders involved in the resolution plan.”

26 The jurisdiction which has been conferred upon the

Adjudicating Authority in regard to the approval of a resolution plan
is statutorily structured by sub-Section (1) of Section 31. The
jurisdiction is limited to determining whether the requirements
which are specified in sub-Section (2) of Section 30 have been
fulfilled. This is a jurisdiction which is statutorily-defined,
recognised and conferred, and hence cannot be equated with a
jurisdiction in equity, that operates independently of the provisions
of the statute. The Adjudicating Authority as a body owing its
existence to the statute, must abide by the nature and extent of its
jurisdiction as defined in the statute itself.
X X X
32 In K Sashidhar (supra), Justice A M Khanwilkar, speaking
for the two-Judge Bench, held:

“57. On a bare reading of the provisions of the I&B Code,

it would appear that the remedy of appeal under Section
61(1) is against an “order passed by the adjudicating
authority (NCLT)”, which we will assume may also
pertain to recording of the fact that the proposed
resolution plan has been rejected or not approved by a
vote of not less than 75% of voting share of the financial
creditors. Indubitably, the remedy of appeal including the
width of jurisdiction of the appellate authority and the
grounds of appeal, is a creature of statute. The provisions
investing jurisdiction and authority in NCLT or NCLAT as
noticed earlier, have not made the commercial decision
exercised by CoC of not approving the resolution plan or
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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 rejecting the same, justiciable. This position is reinforced
from the limited grounds specified for instituting an
appeal that too against an order “approving a resolution
plan” under Section 31. First, that the approved resolution
plan is in contravention of the provisions of any law for
the time being in force. Second, there has been material
irregularity in exercise of powers “by the resolution
professional” during the corporate insolvency resolution
period. Third, the debts owed to operational creditors
have not been provided for in the resolution plan in the
prescribed manner. Fourth, the insolvency resolution plan
costs have not been provided for repayment in priority to
all other debts. Fifth, the resolution plan does not comply
with any other criteria specified by the Board.
Significantly, the matters or grounds—be it under Section
30(2) or under Section 61(3) of the I&B Code—are
regarding testing the validity of the ―approved‖ resolution
plan by CoC; and not for approving the resolution plan
which has been disapproved or deemed to have been
rejected by CoC in exercise of its business decision.

58. Indubitably, the inquiry in such an appeal would be

limited to the power exercisable by the resolution
professional under Section 30(2) of the I&B Code or, at
best, by the adjudicating authority (NCLT) under Section
31(2) read with Section 31(1) of the I&B Code. No other
inquiry would be permissible. Further, the jurisdiction
bestowed upon the appellate authority (NCLAT) is also
expressly circumscribed. It can examine the challenge
only in relation to the grounds specified in Section 61(3) of
the I&B Code, which is limited to matters “other than”
enquiry into the autonomy or commercial wisdom of the
dissenting financial creditors. Thus, the prescribed
authorities (NCLT/NCLAT) have been endowed with
limited jurisdiction as specified in the I&B Code and
not to act as a court of equity or exercise plenary
powers.

59. In our view, neither the adjudicating authority (NCLT)

nor the appellate authority (Nclat) has been endowed with
the jurisdiction to reverse the commercial wisdom of the
dissenting financial creditors and that too on the specious
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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 ground that it is only an opinion of the minority financial
creditors…...”
(emphasis supplied)

The Court, also held (in paragraph 62) that the legislative history of
the IBC indicated that “there is a contra indication that the
commercial or business decisions of financial creditors are not open
to any judicial review by the adjudicating authority or the appellate
authority‖.

40 Certain foreign jurisdictions allow resolution/reorganization

plans to be challenged on grounds of fairness and equity. One of the
grounds under which a company voluntary arrangement can be
challenged under the United Kingdom‘s Insolvency Act, 1986 is that
it unfairly prejudices the interests of a creditor of the company. The
United States‘ US Bankruptcy Code provides that if a restructuring
plan has to clamp down on a dissenting class of creditors, one of the
conditions that it should satisfy is that it does not unfairly
discriminate, and is fair and equitable. However, under the Indian
insolvency regime, it appears that a conscious choice has been made
by the legislature to not confer any independent equity based
jurisdiction on the Adjudicating Authority other than the statutory
requirements laid down under sub-Section (2) of Section 30 of the
IBC.”

k. Inclusion of the property as an asset of the Corporate Debtor lies in the

teeth of the decision of the Hon’ble Supreme Court in the matter of

Municipal Corporate of Greater Mumbai (MCGM) vs. Abhilash Lal (Civil

Appeal No. 6350 of 2019), wherein the Hon’ble Supreme Court observed

that the provisions of the IBC are of importance when the property is of

the debtor and not when a third party is involved.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 l. In view of the provisions of the Code, unless a transaction is sought to be

challenged as a ‘preferential’ or ‘fraudulent’ transaction, the Adjudicating

Authority ceases to have jurisdiction over the third party.

m. It is no longer res integra that a Resolution Plan would be binding on all

stakeholders only upon its approval by the Adjudicating Authority under

Section 31 of the Code. In fact, it is trite law that only upon approval by

the NCLT under Section 31(1) of the IB Code, pursuant to subjective

satisfaction about the plan’s conformity with Section 30(2) of IB Code, does

the plan become binding on the stakeholders in terms of judgment of

Hon’ble Supreme Court in the matter of Ghanashyam Mishra and Sons

Private Limited v. Edelweiss Asset Reconstruction Company Limited

[(2021) 9 SCC 657]. The relevant paras of the judgment reads thus:-

“93. As discussed hereinabove, one of the principal objects of the

I&B Code is providing for revival of the corporate debtor and to make
it a going concern. The I&B Code is a complete Code in itself. Upon
admission of petition under Section 7 there are various important
duties and functions entrusted to RP and CoC. RP is required to
issue a publication inviting claims from all the stakeholders. He is
required to collate the said information and submit necessary
details in the information memorandum. The resolution applicants
submit their plans on the basis of the details provided in the
information memorandum. The resolution plans undergo deep
scrutiny by RP as well as CoC. In the negotiations that may be held
between CoC and the resolution applicant, various modifications
may be made so as to ensure that while paying part of the dues of
financial creditors as well as operational creditors and other
stakeholders, the corporate debtor is revived and is made an on-

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 going concern. After CoC approves the plan, the adjudicating
authority is required to arrive at a subjective satisfaction that the
plan conforms to the requirements as are provided in sub-section (2)
of Section 30 of the I&B Code. Only thereafter, the adjudicating
authority can grant its approval to the plan. It is at this stage that
the plan becomes binding on the corporate debtor, its employees,
members, creditors, guarantors and other stakeholders involved in
the resolution plan. The legislative intent behind this is to freeze all
the claims so that the resolution applicant starts on a clean slate
and is not flung with any surprise claims. If that is permitted, the
very calculations on the basis of which the resolution applicant
submits its plans would go haywire and the plan would be
unworkable.
X X X
102.1. That once a resolution plan is duly approved by the
adjudicating authority under sub-section (1) of Section 31, the claims
as provided in the resolution plan shall stand frozen and will be
binding on the corporate debtor and its employees, members,
creditors, including the Central Government, any State Government
or any local authority, guarantors and other stakeholders. On the
date of approval of resolution plan by the adjudicating authority, all
such claims, which are not a part of resolution plan, shall stand
extinguished and no person will be entitled to initiate or continue
any proceedings in respect to a claim, which is not part of the
resolution plan.”

25. A perusal of the aforesaid objection raised by the HDFC Bank vide I.A. No.

3778/2022 indicates that the Applicant Bank has prayed to exclude certain

units from the Universal Business Park project located at Sector 66,

Badshahpur, Gurgaon from the purview of the plan or in the alternative, has

prayed for rejection of the plan. The Applicant Bank has contended that
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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Nayanika Holdings had availed a secured Loan Facility to the tune of INR

1,05,00,00,000/- from the Applicant Bank/Objector which was secured by way

of creation of mortgage over the concerned units and that such charge was also

registered with the ROC. In this regard, it is pertinent to note that the RP had

filed its reply to the said I.A. wherein it was emphasized that this Adjudicating

Authority while disposing of C.A. No. 1550/2019 vide order dated 11.06.2021

had specifically noted that apart from the directions to modify the resolution

plan on a limited point, no other issue would be raised by any objector nor

decided by CoC. Moreover, the Applicant Bank in the present I.A. is not a

financial creditor of the CD but has extended the loan facility to a unit holder in

the Universal Business Park project. Furthermore, the loan agreement was

executed between the Applicant Bank and Nayanika Holdings, and the Corporate

Debtor was not a party to it. Therefore, any default under the loan agreement by

the debtor i.e. Nayanika Holdings, does not give a locus to the creditor i.e. the

Applicant Bank, to object to a resolution plan submitted qua Corporate Debtor.

Relevant excerpt of the loan agreement, indicating the parties to it, reads thus: -

[***]

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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The Applicant Bank has also enclosed with the IA a ‘Memorandum Recording

Past Transactions of Creation of Mortgage by Delivery of Title Deeds’ to

emphasise that Nayanika Holdings had deposited title deeds of unit no. 618-626

located at 6th Floor of Universal Business Park to secure the loan facility

extended by the Applicant Bank. Relevant excerpt of aforementioned

memorandum reads thus:

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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 [...]

26. As can be seen from the aforesaid documents enclosed by the Applicant

Bank with the IA, the loan agreement as well as the document recording the

mortgaging of the unit no. 618-626 located at 6th Floor of Universal Business

Park was executed between the Applicant Bank and Nayanika Holdings, and was

not a tripartite agreement involving the Corporate Debtor. Apparently, as per the

stand taken by Applicant itself, it is not open for this Tribunal to determine the

disputed issue between the Applicant and Nayanika Holdings. It is for the

Applicant to resort to the remedy available to it before the appropriate forum in

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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accordance with law to seek its relief. We find merit in the contention of the RP

that the Applicant Bank has no locus to object to a resolution plan which already

stands approved by the CoC. Furthermore, as already noted in the order dated

11.06.2021 of this court, no other issue would be raised by any objector nor

decided by CoC. In the wake, I.A. 3778/2022 stands dismissed.

Objection filed vide IA-3099/ 2023:

27. The captioned IA has been filed by Kotak Mahindra Bank Limited

(Objector No. 1) and Kotak Mahindra Prime Limited (Objector No. 2), both being

dissenting Secured Financial Creditor to the Resolution Plan dated 05.08.2021

filed by the RP, with the prayer to set aside the Resolution Plan submitted by the

SRAs on the ground of it being non-compliant to Section 30(2)(b) & (e) r/w

Section 30(4) of the Code r/w Regulation 38(1)(a) & (b) of the CIRP Regulations.

28. The contentions raised by the Applicant/Objector in the

application/written submission could be summarized as under: -

a. The Resolution Plan is non- complaint with the decision of the Hon’ble

Supreme Court in Jaypee Kensington Boulevard Apartments Welfare

Association & Ors. vs. NBCC (I) Ltd. & Ors. [2022 1 SCC 401]:-

(i) In the aforementioned case, it was held that a dissenting financial

creditor is required to be paid an “amount” quantified in terms of the

“proceeds” of assets receivable under Section 53 of the Code and that

the “amount payable” is to be paid in priority over their assenting

counterparts and further that the statute refers only to the sum of

money and nothing else.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 (ii) The Resolution Plan submitted by RP contains Part-I and Part-II

wherein Part- I provide for an upfront payment of Rs. 3 Crores to

dissenting creditor and Part-II is ambiguous and only proposes that

the secured creditors, including the Objector, can enforce their

security ergo there is no certainty with respect to either the amount or

the time within which the dissenting creditors will be paid.

(iii) A dissenting FC is required to be paid the liquidation value upfront in

cash and a Resolution Plan cannot force a dissenting creditor to

continue its association with the Corporate Debtor until the assets of

the CD is liquidated. Therefore, the plan is in direct contradiction to

Jaypee Kensington (supra).

(iv) The Plan of permitting realization of the certain securities, that too to

certain creditors, is contrary to the provisions of Section 30(2) of the

IBC r/w Regulation 38(1)(b) of the IBBI (Insolvency Resolution Process

for Corporate Persons) Regulations, 2016 which contemplates

payment of liquidation value to a dissenting creditor.

(v) The Plan, in its present form, is in complete contradiction of Section

30(2)(b)(ii) of IBC r/w Section 53 of the Code in terms of the treatment

of the dissenting creditor and the manner of distribution.

b. The Liquidation Value as calculated by the registered valuers has been

ignored and the RP and SRA have arbitrarily fixed the valuation of the

Universal Business Project as ‘NIL’:-

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 (i) The liquidation value of the assets of the CD as determined by the

registered valuers is sacrosanct and considering any other valuation

to determine the monies to be paid to the dissenting FCs will cause

chaos and confusion. It is further submitted that the task of

determining the liquidation value of the assets of the CD is entrusted

to a professional as per Regulation 2(k), 27 and 35 of the IBBI

(Insolvency Resolution Process for Corporate Persons) Regulations,

2016 and only such valuation can be used for payment of monies to

dissenting FCs.

(ii) In the present case, the Plan not only ignores the valuation as arrived

at by the registered valuers but also proceeds to assume the value of

UBP project as ‘Nil’ based on an assumption that there are no unsold

units in the said project which is contrary to the data provided in the

Information Memorandum.

(iii) It is submitted that the Hon’ble NCLAT in the order dated 11.04.2023

has also observed that the RP/ SRAs cannot change the liquidation

value as arrived at by the valuers but thereafter, chose to overlook the

same based on the observations of this Tribunal on the caveats in the

valuation report.

c. The payment to a dissenting creditor under the Plan is contrary to the

provision of Section 53 of the Code:-

(i) It is settled law that a Dissenting Financial Creditor (DFC) is required

to be paid as per the waterfall mechanism proposed in Section 53 of

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 the Code which clearly states that the such FCs are required to be paid

the liquidation value of the assets of the CD. Further the liquidation

value for extra FAR of UBP Project and other project has not been

offered to DFC.

(ii) However, in the present case, the RP/ SRAs have themselves decided

the amount payable to the dissenting FCs which is contrary to the

provisions of the Code.

d. There is no provision in IBC or the Regulations thereof for part revival and

part liquidation of the same CD:-

(i) It is submitted that of the eight projects of the CD, the present plan

proposes revival of three projects and liquidation of the remaining five.

It is further submitted that there is no provision in law which permits

such Plan to be placed before CoC, let alone being submitted for

approval by this Tribunal.

(ii) The Applicant has submitted that for a revival to be done project wise,

it is necessary that the CIRP should be done on project wise basis.

e. The Resolution Plan does not fulfil the ingredients necessary under Section

30 of the Code:-

(i) It is submitted that under Part II of the Plan, five projects are proposed

to be liquidated but the amount to be paid and the time by which it

will be paid is entirely uncertain. No lender has exercised its

commercial wisdom, which is the basic ingredient for approval of a

Plan, as to the manner in which the said projects will be sold.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 (ii) Further, Part II of the Plan is faulty and defective for the reason that it

allows certain creditors to go ahead and realize their security. This is

in contravention of Section 30(2) of the Code r/w Regulation 38(1)(b)

of the CIRP Regulations, 2016 which contemplates payment of the

liquidation value.

f. Sale of projects through a Monitoring Committee is not provided in law:-

(i) Part -II of the Plan provides for appointment of a Monitoring Committee

under the chairmanship of a Retired Judge who will then distribute

the money in accordance with Section 53 of the Code but there is no

provision in the Code which permits any committee to transfer or sell

the properties of the CD.

(ii) On one hand, the Plan permits the Objector to realize one of its

securities which is not forming part of the Plan and at the same time,

also takes away the right of the Objector to realize the security on its

own and that right has been conferred to some other committee.

(iii) The Committee cannot sell or transfer the assets of the CD which is

the sole prerogative of the Liquidator.

g. The Plan proposed differential treatment and payment to the same class

of creditors of the CD which is impermissible:

(i) The Resolution Plan in its present form permits payment of cash to a

few secured creditors while others are permitted to enforce their

securities, thus resulting in unequal treatment to the same class of

creditors, which is violative of the Code.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 (ii) One of the secured creditors, i.e. Dewan Housing Finance Limited

(DHFL) is proposed to be paid proportionately a higher percentage of

its admitted dues other than the Applicant/Objector.

(iii) Further, unsecured creditors of the CD such as Sunflame Enterprises

Ltd and Ms. Nisha Singh are being treated as superior to the secured

creditors such as the Applicant/Objector.

(iv) A Resolution Plan can provide for different treatment to different

creditors but it is not permissible to have similarly placed creditors to

be treated differently.

h. The Plan for UBP Project proposes higher payment to unsecured creditors

as compared to secured FCs:-

(i) The Plan proposes payment of Rs. 1.90 Crores to unsecured OC

against their dues of Rs. 18.98 Crores (10% of the dues) whereas the

Objectors are getting only Rs. 3 Crores against their dues of Rs. 51.28

Crores (5.85% of the dues) and that the entire UBP is mortgaged to

them.

(ii) The Plan proposes payment of Rs. 1.50 Crores to DTCP, Haryana

considering them at par with allottees in respect of units held by them,

which classifies them as much above the secured FCs.

(iii) The Resolution Plan does not provide a collective treatment of the three

projects but separate project wise treatment. The Plan proposed

payments to unsecured FCs before the payments are made to DTCP,

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 Haryana and thus, the said proposal is non-compliant of Section

30(2)(b) of the Code r/w Regulation 38 of the CIRP Regulations.

i. The Resolution Plan proposes one unsecured creditor viz. Sunflame

Enterprises Pvt. Ltd. to be entitled to retain its Units proposed under a

BBA, which is giving special treatment over others in the same class.

(i) Unsecured creditors such as Sunflame and Nisha Singh are getting

priority treatment. The aforesaid Sunflame has been classified as a

homebuyer though it is actually an investor who has invested funds

with the Certificate Debtor. The BBA’s under which it claims to be a

homebuyer clearly stipulate that the Units under such scheme are

subject to the mortgage of the Objectors. However, nothing has been

provided in the Plan to that effect.

j. The Plan proposes sale of the assets of the guarantors which is not

permissible in law:-

(i) The guarantors assets cannot form part of the Resolution Plan as held

by the Hon’ble NCLAT in Nitin Chandrakant Naik & Anr. vs.

Sanidhya Industries LLP & Ors. [Company Appeal (AT) (Ins) 257 of

2020].

(ii) The Plan included creditors of the CD such as Axis Bank Ltd., HDB

Financial Services Ltd. and IndusInd Bank Ltd., who were secured by

mortgage of the properties of the guarantors, as secured creditors of

the CD.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 k. The Plan proposed that monies received under the Avoidance Applications

filed by the RP would be to the benefit of the SRAs, which is not permissible

in law:-

(i) The proposal in the Plan for providing the monies received under

Avoidance Applications for the benefit of SRA is against all settled law

which lays down that such monies are to be distributed among FCs.

(ii) Though, it is understood that this Tribunal has called upon the SRA

to file an affidavit amending this clause, it is submitted that the

Tribunal cannot alter/change any clause in the Plan and that if the

Plan is not in compliance of the provision, it is required to rejected.

(iii) It is further submitted that if any Plan is inconsistent with law, it is

required to be sent back to the CoC as has been held by Hon’ble

Supreme Court in the matter of Jaypee Kensington Boulevard

Apartments Welfare Association & Ors. vs. NBCC (I) Ltd. & Ors.

[(2022) 1 SCC 401]. The Applicant/Objector relied upon Para 216 of

the aforementioned judgment which reads thus:-

“216. For what has been discussed and held on the relevant
points for determination, our findings and conclusions are as
follows:

A. The Adjudicating Authority has limited jurisdiction in the

matter of approval of a resolution plan, which is well defined and
circumscribed by Sections 30(2) and 31 of the Code. In the
adjudicatory process concerning a resolution plan under IBC,
there is no scope for interference with the commercial aspects of
the decision of the CoC; and there is no scope for substituting any
commercial term of the resolution plan approved by Committee of
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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 Creditors. If, within its limited jurisdiction, the Adjudicating
Authority finds any shortcoming in the resolution plan vis-à-vis
the specified parameters, it would only send the resolution plan
back to the Committee of Creditors, for re-submission after
satisfying the parameters delineated by the Code and exposited
by this Court.”

l. The Plan, though acknowledges that the land on which the UBP Project is

built is owned by Blaze Promoters Pvt. Ltd., which is an associate company

of the CD, but it does not factor the 20% developed area of the UBP that

belongs to the Blaze Promoters Pvt. Ltd in the Plan or the amount of Rs.

40 Crores to be paid to Blaze anywhere in the Plan.

m. The Plan proposed that all future FAR will belong to the liquidation estate

and ignores the fact that the owner of the land is Blaze and without its

consent, the FAR cannot be applied and allotted and also charged to the

DFCs.

n. The Plan ignores the fact that the entire unsold area of 1,00,387.13 sq. ft.

on the date of mortgage i.e. 09.08.2012 is mortgaged in favor of KMPL and

thereafter since 01.07.2016 in favor of KMBL on a pari passu basis, and

that neither KMPL nor KMBL have given any NOC for the sale of any units

after 09.08.2012 and that sale of any such unit is illegal and subject to

mortgage of the Objectors.

o. On one hand, the RP and SRAs have claimed that units of the UBP project

are oversold and hence CD has no assets, whereas on the other hand, the

SRAs have submitted a Plan for revival of three projects. It is submitted

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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 that on the question of whether a Plan can be submitted for a Project/ CD

which has no assets, the reply has to be an emphatic NO.

p. The Plan proposes that there will be a forensic audit done after the

approval of the Plan to determine the persons who are entitled to units

and whose claim will be rejected, whereas the same should have been done

before the Plan was submitted. This amounts to putting the cart before the

horse.

q. The Plan nowhere mentions as to what are the source of funds for

completing the three projects other than the amounts payable by the

unitholder themselves and such a plan cannot be entertained.

r. The Plan stipulates that the SRAs will not be in a position to demarcate

the units in favor of Unit Holders in whose name conveyance deeds have

been executed by erstwhile management of Universal Buildwell Pvt. Ltd.,

thus rendering such unit holders helpless. If the SRAs are taking over the

project, it is their duty to get the units demarcated with the assistance of

the authorities.

29. As far as the objection regarding distribution is concerned, it is stare

decisis that the same is the issue covered by commercial wisdom of CoC and it

is not open for this Tribunal to interfere with the decision taken by the CoC in

exercise of its commercial wisdom. Further as far as the issue of violation of

provisions of Section 53 of IBC, 2016 is concerned, no factual position is

espoused before us to establish such violation. Rather at the end of prolix

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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hearing, Mr. Bhatt, Ld. Counsel for the Applicant in the IA categorically

submitted that the Applicant had no objection to the Resolution Plan, as on sale

of certain assets of CD it was going to receive the sale proceeds as per the plan.

Regarding the issue of compliances, we may refer to Section 31(4)(b) of IBC,

2016, it is for the Resolution Applicant to obtain the necessary approval required

under any law for the time being in force within a period of one year from the

date of approval of the resolution plan by the Adjudicating Authority. The Section

31(4) reads thus: -

“31. Approval of resolution plan.—

[...]

(4) The resolution applicant shall, pursuant to the resolution plan approved
under sub-section (1), obtain the necessary approval required under any law
for the time being in force within a period of one year from the date of
approval of the resolution plan by the Adjudicating Authority under sub-
section (1) or within such period as provided for in such law, whichever is
later:

Provided that where the resolution plan contains a provision for

combination, as referred to in section 5 of the Competition Act, 2002 (12 of
2003), the resolution applicant shall obtain the approval of the Competition
Commission of India under that Act prior to the approval of such resolution
plan by the committee of creditors.”

30. Additionally, qua the objections raised vide aforesaid I.A. No. 3099/2023,

it is relevant to refer to the order dated 11.06.2021 passed by this Tribunal

wherein it was specifically noted that no further objection/ issue would be

entertained with respect to the resolution plan. It is also pertinent to note that

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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the Applicants herein had preferred an appeal against the order dated

11.06.2021 before the Hon’ble NCLAT wherein the Hon’ble Appellate Tribunal

had only directed that the direction contained in paragraph 50 of the order dated

11.06.2021 passed by this court be deleted. Since, there was no further

modification of the order dated 11.06.2021, we do not deem it fit to entertain

objections raised after the approval of the resolution plan by the CoC.

31. Such is also the contention raised in reply to the IA- 3099/2023. Relevant

excerpt of the written submission dated 14.09.2024 filed by the RP in the

aforementioned IA reads thus: -

“4. Further, vide detailed Order dated 11.06.2021 this Hon’ble Adjudicating
Authority considered the Resolution Plan as submitted by the Applicant
herein and dismissed various objections made to the Resolution Plan
including the objections made by various homebuyers, Kotak Mahindra
Bank Ltd., Kotak Mahindra Prime Ltd. and Dewan Housing Finance
Corporation ltd. (‘DHFL’). At this time the Hon’ble Adjudicating Authority
remitted the matter partly accepting one objection of Kotak Mahindra Bank
Ltd., Kotak Mahindra Prime Ltd. and Dewan Housing Finance Corporation
ltd. (‘DHFL’) and directed to:

(i) Provide for timeline for payment to Kotak Mahindra Bank Ltd.,
Kotak Mahindra Prime Ltd. and Dewan Housing Finance Corporation
ltd. (‘DHFL’) as dissenting creditors since no specific timeline was
provided in the Resolution Plan.

(ii) CoC to consider whether to re-evaluate the liquidation value of the

Corporate Debtor.

5. Order dated 11.06.2021 has attained finality as it was challenged by

Kotak Mahindra Bank Ltd. and Kotak Mahindra Prime Ltd. before the

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 Hon’ble Appellate Tribunal and the same was upheld vide Order dated
11.04.2023. The Hon’ble Appellate Tribunal further clarified that there was
no requirement to reconsider the liquidation value of the Corporate Debtor.
Further, the appeal filed by Kotak Mahindra Bank against Order of the
Hon’ble NCLAT dated 11.04.2023 was dismissed by the Hon’ble Supreme
Court vide Order dated 26.05.2023.”

Ergo, issues raised by the Applicant Bank/ Objector in IA- 3099/2023 cannot

be entertained in view of the order dated 11.06.2021 passed by this Tribunal,

order dated 11.04.2023 passed by the Hon’ble NCLAT and order dated

26.05.2023 passed by the Hon’ble Supreme Court, nonetheless, in order to

correctly appreciate the law with respect to the contention of the Applicant that

part resolution and part liquidation of a Corporate Debtor is impermissible under

law, it is relevant to refer to Regulation 36B(6A) of CIRP Regulations, 2016 which

provides that when an RP does not receive a resolution plan in response to RFRP,

he may, with the approval of the CoC, issue request for resolution plan for sale

of one or more of assets of the CD. The said regulation reads thus: -

“36B. Request for resolution plans.

[...]

(6A) If the resolution professional, does not receive a resolution plan

in response to the request under this regulation, he may, with the
approval of the committee, issue request for resolution plan for sale of
one or more of assets of the corporate debtor. ”

Further, under Regulation 37 of CIRP Regulations, 2016, a resolution plan

may provide measures for resolution of the CD for maximization of value

of its assets. Clause (m) of the said regulation further provides for sale of
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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 one more assets of the CD to one or more SRAs and manner of dealing

with remaining assets. The said regulation reads thus: -

“37. Resolution Plan.

[...]

(m) sale of one or more assets of corporate debtor to one or more

successful resolution applicants submitting resolution plans for such
assets; and manner of dealing with remaining assets.”

Thus, the law itself provides that the RP may himself seek a resolution plan with

respect to part of the assets of the CD. Further, the SRAs may also submit a

resolution plan for one or more assets of the CD and the manner of dealing with

remaining assets of the CD. Therefore, the contention of the Applicant Bank that

part resolution and part liquidation of a CD is impermissible under law is legally

untenable. The Resolution Plan takes care of the interest of the Applicant in the

IA. In the wake, I.A. 3099/ 2023 stands dismissed

Objection filed in IA-2959/2024:

32. The captioned IA has been filed by Shyam Kishan Sharaf and Banwari Lal

Saraf (hereinafter, “Applicant No. 1 and Applicant No. 2” respectively). The

contentions raised in the IA are summarized hereinbelow:-

(i) Applicant No. 1 had given a loan of Rs. 1.50 crores to CD on interest in

May 2014 on the basis of Board Resolution dated 26.05.2014 and the Loan

Agreement dated 27.05.2014. In terms of the Loan Agreement, PDC No.

053512 dated 27.05.2015 was issued for repayment of Loan of Rs. 1.50

crores and 12 monthly cheques were issued for payment of interest.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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 Further, the CD executed documents such as BBA, MoU etc. for creation

of collateral security of Unit No. 414 measuring super area of 3000 sq. ft.

at 4th Floor of Universal Business Park, Sector 66, Gurgaon.

(ii) Similarly, Applicant No. 2 gave a loan of Rs. 1.50 crores to CD on interest

in July 2014 on the basis of Board Resolution dated 09.07.2014 and Loan

Agreement dated 11.07.2014. In terms of Loan Agreement, PDC 000488

dated 11.07.2015 was issued for repayment of Loan of Rs. 1.50 crores and

12 monthly cheques were issued for payment of interest. Further, the CD

executed documents such as SBA, MoU etc. for creation of collateral

security of Unit No. 233 measuring super area 2725 sq. ft. on 2nd Floor of

Universal Trade Tower, Sector 49, Gurgaon.

(iii) The cheques given to both the Applicants for repayment of the

aforementioned loan amount bounced and consequently, complaint case

u/s 138 NI Act was initiated against the CD and its Ex-Directors in the

year 2015.

(iv) CIRP was initiated against the CD on 03.07.2018 and both the Applicants

filed claims in Form C with RP on 29.07.2018 under Regulation 8 of CIRP

Regulations, 2016 read with Section 5(8)(a) of IBC, 2016. However, the RP

advised the Applicants to file their claims in Form CA and stated that he

shall admit the claim of the Applicants only on filing of Form CA instead

of Form C.

(v) The RP did not consider/admitted the claim of the Applicants merely due

to non-filing of Form CA. Thus, RP did not place the claim of the Applicants

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 in Information Memorandum and resultantly, the SRA also did not

consider the claim of the Applicants and Resolution Plan sought to be

approved also does not include the claims of the Applicants.

(vi) In terms of law laid down by Hon’ble Supreme Court in GNIDA vs. Prabhjit

Singh Soni & Anr. (Civil Appeal Nos. 7590-7591 of 2023), it is clear from

reading of Para 54 of the judgment that the Form (viz. Form C, Form CA,

Form B) in which a claim is to be submitted under the CIRP Regulations,

2016 is directory and not mandatory, and thus RP cannot refuse to admit

a claim merely on the basis of the incorrectness of the form selected by the

claimants if otherwise documents/proof supporting the claim have been

duly filed by the Claimants. Thus, as per Prabhjit Singh Soni judgment,

the Resolution Plan sought to be approved vide IA-5003/2021 fails not

only in acknowledging the claim made by the Applicants, but also in

mentioning the correct figure of the amount due and payable. This

omission or error has materially affected the resolution plan and the same

stands vitiated.

(vii) The Resolution Plan has not placed the Applicants in any category of

creditors which has gravely affected the interests of the Applicants

adversely. This Tribunal from time and again gave directions to the RP

through various orders dated 30.04.2019, 13.05.2019 and 27.05.2019 in

respect of various units of two (2) projects namely Universal Business Park

and Universal Trade Tower and had also directed the RP to identify all the

claimants and divide them into 2 categories, namely allottees and

Financial Creditor. However, to the limited knowledge of the Applicants,

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
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 the Ld. RP has miserably failed to obey the directions of this Tribunal

which is evident from the fact that RP did not mention the name of the

Applicant 1 and Applicant 2 in the list prepared by him for UBP and UTT

despite the claimants having duly filed their claim on 29.07.2018 i.e.

within 26 days from ICD whereas names of even Ex Directors are

appearing who may not have even filed their claims with RP.

(viii) The Resolution Plan for Universal Business Park conceives utilization of

land owned by Blaze Promoters Pvt. Ltd. and further on utilization of units

of 43 Conveyance Deed holders in Universal Business Park which as per

the Apex Court Judgment in the case of Suraj Lamps and Embassy

Property is illegal and hence, not feasible.

(ix) Through the Resolution Plan sought to be approved vide IA-5003/2021,

the RP is trying to play fraud on this Tribunal by contravening the law laid

down by Hon'ble Supreme Court in M/s Embassy Property Developments

Pvt. Ltd. vs. State of Karnataka & Ors. by annulling the Conveyance

Deeds of 43 Conveyance Deed holders. Moreover, Conveyance Deeds

registered with Sub-Registrar Office are regulated under Transfer of

Property Act, 1882 and the Registration Act, 1908 and that through IA-

5003/2021, the RP is trying to bypass the aforementioned laws and pass

a resolution plan behind the back of 43 Conveyance Deed holders and the

two Applicants herein.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

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 (x) The Applicants were never served noting of the meeting of the CoC and

that the entire proceedings up to the stage of approval of resolution plan

have been ex-parte to the Applicants.

(xi) The Applicants had submitted their claim in Form C on 29.07.2018 i.e.

within 26 days from Insolvency Commencement Date i.e. 03.07.2018 and

had been held as secured creditor by MM Court u/s 138 NI Act after

recording of evidences, cross examination etc. Yet, the Resolution Plan in

IA-5003/ 2021 projects the Applicants as the ones who did not submit

their claim.

(xii) Though the issue whether the Applicants are Financial Creditors u/s

5(8)(a) or Allottee u/s 5(8)(f) of IBC, 2016 is pending before this Tribunal,

interest of justice demands that the collateral securities for the loan given

by the Applicants i.e. Unit No. 414 in Universal Business Park, Sector 66,

Gurgaon and Unit No. 233 in Universal Trade Tower, Sector 49, Gurgaon

should be kept under the control and custody of RP to the exclusion of all

other Creditors/Claimants of the CD.

(xiii) The RP has wrongly certified by filing Form H that the Resolution Plan

complies with Section 30(2) of IBC,2016 whereas in fact, it is in gross

violation of the provisions of Section 30(2). Therefore, the RP could not

have presented a Resolution Plan which is non-compliant of the Code,

firstly before CoC and thereafter, before this Tribunal.

(xiv) The SRA in guise of approval of the Resolution Plan is illegally trying to

interfere with the contractual rights of the Applicants and trying to take

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 69 of 148
 over the powers of RP such as appointing Forensic Auditor and validation

of claims of various claimants/ stakeholders of CD, and giving preference

to one allottee over another which is against Article 14 of Constitution of

India. The Applicants relied upon judgment of Hon’ble Supreme Court in

the matter of TATA Consultancy Services Ltd. vs. Vishal Ghisulal Jain

RP SK Wheels Pvt. Ltd. (Civil Appeal No. 3045 of 2020), wherein it was

held that both NCLT and NCLAT cannot interfere with the Contractual

rights of the parties which arise dehors the IBC, 2016. The relief sought in

the IA reads thus:

A. Direct the RP to keep “Unit No. 414 measuring super Area of 3000

sq. ft at 4th floor of Universal Business Park, Sector 66, Gurgaon” of

Applicant No. 1 exclusively for the Applicant No. 1 and “Unit No. 233

measuring super Area of 2725 sq. ft at 2nd floor of Universal Trade

Tower, Sector 49, Gurgaon” of Applicant No. 2 exclusively for the

Applicant No. 2 (to the exclusion of all other creditors/allottees of

Corporate Debtor) in view of binding Hon’ble Supreme Court

judgment dated 12.02.2024 in the matter of GNIDA vs. Prabhjit

Singh Soni & Anr. (Civil Appeal Nos. 7590-7591 of 2023) and

accordingly direct RP to make necessary changes in Information

Memorandum & in IA-5003/2021 filed by the RP for approval of

Resolution Plan.

B. Direct the RP to take control and custody of “Unit No. 233 measuring

super Area of 2725 sq. ft at 2nd floor of Universal Trade Tower, Sector

49, Gurgaon” of Applicant No. 2 (which as per the limited knowledge

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 70 of 148
 of the Applicants & submissions hereinabove is in illegal possession)

in view of judgment in Civil Appeal Nos. 7590-7591 of 2023 and

further in view of duties of RP under Section 25 of IBC, 2016 and as

per directions of this Tribunal vide order dated 09.02.2023 in CA-

500/2019.

32. As far the aforementioned IA-2959/2024 is concerned, the claim of the

Applicants could be dealt with while examining CAs-1500/2019 and

1501/2019. The order passed in the CAs are under challenge before

Hon’ble NCLAT. The issue raised in the IA was raised by the Applicants

also on 12.06.2024. Having heard the Applicant No.1, this Tribunal passed

the necessary order. The order was challenged before Hon’ble NCLAT in

Company Appeal (AT)(Ins.) 1424 of 2024, in which Hon’ble NCLAT passed

detailed order. The Paras 2-11 reads thus:-

“2. This Appeal has been filed against the order dated 12.06.2024 by
which order the Adjudicating Authority has made very strong observations
against the Appellant that he has been obstructing the proceeding of the
Court and the Adjudicating Authority has also passed an order expressing
hope and trust that Appellant would refrain intimidating and obstructing
the Court proceedings by raising such issues which are under
consideration before the Appellate Tribunal. On 12.06.2024, IA No.3089 of
2021 filed by the Appellant was also listed in which application, the
Appellant prayed for initiating Section 340 CrPC proceeding against the
Resolution Professional on some allegations made in the application.
Adjudicating Authority has noticed in the order that IA No.6063 of 2023
which was filed by the Appellant earlier was disposed of on 06.05.2024.
Adjudicating Authority has made observations that why the Appellant is
making submission with regard to issue which was already disposed of
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 71 of 148
 on 06.05.2024. Court also noticed that in earlier application, an order was
passed on 12.09.2023 against which Appeals have been filed by the
Appellant before the Appellate Tribunal which are pending consideration.

3. In this Appeal, Appellant submits that in the order dated 06.05.2024,

Adjudicating Authority had made observations that Appellant could not
explain the ratio of the judgment of the Hon’ble Supreme Court in “Greater
Noida Industrial Development Authority vs. Prabhjit Singh Soni- (Civil
Appeal Nos. 7590-7591 of 2023)” and Appellant was only trying to explain
the ratio of the said judgment. It is submitted that the Appellant had not
obstructed the proceeding.

4. Adjudicating Authority in the impugned order has made following

observations: -
“At this stage, Mr. Shyam Kishan Saraf, who is appearing in
person started making submission in respect of IA-6063/2023,
which was disposed in terms of order dated 06.05.2024. When
he was asked as to why he is talking about the IA which could
already been disposed of, he submitted that he is trying to make
this Bench to understand what it could not understand while
passing the order dated 06.05.2024 in IA-6063/2023. He also
started narrating the facts involved in CA1500/2019 & CA-
1501/2019, disposed of in terms of the order dated 12.09.2023
which orders are admittedly under challenged before Hon'ble
NCLAT in the appeals preferred by Mr. Shyam Kishan Saraf.
Even about the IA- 6063/2023, Mr. Shyam Kishan Saraf
submitted that might be the order dated 12.09.2023 passed by
this Tribunal is under challenged before Hon'ble NCLAT, but
since Hon'ble Supreme Court has passed judgment in Greater
Noida Industrial Development Authority vs. Prabhjeet Singh Soni
& Anr. (Civil Appeal Nos. 7590- 7591 of 2023), irrespective of
pendency of the appeal before Hon'ble NCLAT, he has got a cause
to ask this Tribunal to reopen its order dated 12.09.2023. We are
not aware of any such law, which enable us to look into our
order, even for the purpose of review, when the same is under
challenged before Hon'ble Appellate Tribunal. Even otherwise
also, there is no such provision, in terms of which this Tribunal
can review its own order. We are forced to bring it on record that

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 72 of 148
 as and when this matter is listed for hearing, Mr. Shyam Kishan
Saraf, try to obstruct the proceedings and start talking of the
issues involved in CA-1501/2019 & CA-1500/2019 which have
already been disposed of by this Tribunal. When with his
constant obstruction, we got inclined to take appropriate step to
uphold the majesty of law as also the decorum in the Court, Mr.
Shyam Kishan Saraf apologised for his conduct of interrupting
the Court proceedings again and again. By taking a lenient view,
we refrain from taking steps/actions at this stage as is required
in the present proceedings, but we record that it is primary duty
of any judicial forum to uphold the majesty of law at any cost
and if in future Mr. Shyam Kishan Saraf would not so due
deference to law and judicial proceedings we will be constrained
to take appropriate action. We are forced to record so for the
reason that in terms of the order dated 15.05.2024, Hon'ble
NCLAT expected this Tribunal to decide the matter as early as
possible and preferably within two months from the date of
appearance of the parties. The approach shown by Mr. Shyam
Kishan Saraf almost on every date of hearing to obstruct the
proceedings in a way also comes in the way aforementioned
order passed by Hon'ble NCLAT in Company Appeal (AT)
(Insolvency) No. 1017 of 2023 & IA No. 3486, 3487, 3488 of
2023, 1709 of 2024. Even otherwise also, any attempt or
adventure by any party, expecting us to pass any order in
respect of case which is pending for determination before Hon'ble
Appellate Court amounts to demeaning the judicial propriety and
need to be dealt with strongly.”

5. Counsel for the Resolution Professional submitted that on the date

12.06.2024 only application listed was IA No.3089 of 2021 which was
application under Section 340 CrPC and Court decided to defer the
application and await the decision of the Appellate Tribunal since issues
which are sought to be raised in Section 340 CrPC application had bearing
on the decision of the Appellate Tribunal. It is submitted that the Appellant
is in habit of appearing and are making long arguments by raising several
issues which may not be relevant for the matters which are listed before
the Court.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 73 of 148
 6. We have considered the submissions of parties and perused the record.
From the order passed by the Adjudicating Authority, it is clear that on
12.06.2024, when the order was passed only IA No.3089 of 2021 filed by
the Appellant was listed in which Appellant sought prayer to initiate
Section 340 CrPC proceeding against the Resolution Professional in which
application no order has been passed since the Adjudicating Authority
noticed that certain issues having bearing on the application are pending
consideration before the Appellate Tribunal. The explanation which was
sought to be submitted by the Appellant is that he wanted to explain the
judgment of the Hon’ble Supreme Court in “Greater Noida Industrial
Development Authority vs. Prabhjit Singh Soni” (supra) which was
noticed in the order dated 06.05.2024 does not commend us. The
observations made by the Adjudicating Authority in regard to judgment of
the “Greater Noida Industrial Development Authority vs. Prabhjit
Singh Soni” in order dated 06.05.2024 are to the following effect:-
“Mr. Shyam Kishan Saraf asked us to refer to the judgment of
Hon'ble Supreme Court passed in Greater Noida Industrial
Development Authority vs. Prabhjit Singh Soni (Civil Appeal Nos.
7590-7591 of 2023). It is difficult for us to comprehend, when
reliance is placed on the judgment of Hon'ble Supreme Court,
without espousing the legal proposition, which is sought to be
supported by the judgment, that in what context, the party want
us to read the judgement. Nevertheless, as we understand from
the judgment, the ratio decidendi of the same is that this Tribunal
can recall the order of approving the plan. Nevertheless, once the
applicants have challenged our order before Hon'ble NCLAT, we
are unable to appreciate that how we can re-examine the same
for any purpose.”

7. We do not find any occasion to explain the judgment of the Hon’ble

Supreme Court when IA No.3089 of 2021 filed by the Appellant was listed
on 12.06.2024. The submission which was advanced by the Appellant
was wholly irrelevant for the issue which was to be considered by the
Court on the said date. We find that the observations made by the Court

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 74 of 148
 are based on relevant consideration and we do not find any ground to
expunge the remarks.

8. Shri Shyam Kishan Saraf has cited the judgment of the Hon’ble Supreme
Court in “Neeraj Garg vs. Sarita Rani and Ors.- Civil Appeal Nos. 4555-
4559 of 2021”. He has referred to paragraphs 15 to 18 which are as
follows:-
“15. While it is of fundamental importance in the realm of
administration of justice to allow the judges to discharge their
functions freely and fearlessly and without interference by
anyone, it is equally important for the judges to be exercising
restraint and avoid unnecessary remarks on the conduct of the
counsel which may have no bearing on the adjudication of the
dispute before the Court.

16. Having perused the offending comments recorded in the High

Court judgments, we feel that those could have been avoided as
they were unnecessary for deciding the disputes. Moreover, they
appear to be based on the personal perception of the learned
Judge. It is also apparent that the learned Judge did not, before
recording the adverse comments, give any opportunity to the
Appellant to put forth his explanation. The remarks so recorded
have cast aspersion on the professional integrity of the appellant.
Such condemnation of the Counsel, without giving him an
opportunity of being heard would be a negation of the principles
of audi alteram partem. The requisite degree of restraint and
sobriety expected in such situations is also found to be missing
in the offending comments.

17. The tenor of the remarks recorded against the appellant will
not only demean him amongst his professional colleagues but
may also adversely impact his professional career. If the
comments remain unexpunged in the court judgments, it will be
a cross that the Appellant will have to bear, all his life. To allow
him to suffer thus. would in our view be prejudicial and unjust.

18. In view of the forgoing, we are of the considered opinion that

the offending remarks recorded by the learned judge against the
appellant should not have been recorded in the manner it was
done. The appellant whose professional conduct was questioned,
was not provided any opportunity to explain his conduct or
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 75 of 148
 defend himself. The comments were also unnecessary for the
decision of the Court. It is accordingly held that the offending
remarks should be recalled to avoid any future harm to the
appellant's reputation or his work as a member of the Bar. We
therefore order expunction of the extracted remarks in
paragraphs 4,5,6, and 7 of this judgement. The appeals are
accordingly disposed of with this order.”

9. There can be no dispute to the proposition of law that the adverse

comments which are unnecessary and made without opportunity can
always be set aside. The present is a case where observations made by
Adjudicating Authority were during course of the hearing on 12.06.2024
when the Appellant was appearing in person. At the time of deciding the
application, no litigant even if he is appearing in person has freedom to
make any submission which he so feels nor any litigant is entitled to waste
time of the Court where large numbers of cases are pending consideration.

10. Counsel for the Resolution Professional submits that the Appellant who
is appearing in person has already filed eight applications before the
Adjudicating Authority and five Company Appeals arising of the same
dispute.

11. We do not find any ground to interfere with the impugned order. The
observations made by the Adjudicating Authority were based on sufficient
reasons. What Court has observed has to be given weight and
observations cannot be lightly expunged as sought to be contended by the
Appellant appearing in person.”
(emphasis applied)

34. Indubitably, the appeals preferred by the Applicants viz. Company Appeal

(AT)(Ins.) 1411 of 2023 and Company Appeal (AT)(Ins.) 1412 of 2023 are yet to

be adjudicated by Hon’ble NCLAT. The order dated 31.10.2023 passed in the

appeals reads thus:-

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 76 of 148
 “31.10.2023: Appellants appear in person and submits that the
Adjudicating Authority committed error in holding the Appellant as a
financial creditor in a class whereas the Appellants are Financial Creditors
who have filed their claims in Form C. It is further submitted that the
Adjudicating Authority has also brushed aside the judgment delivered in
proceedings under Section 138 of the Negotiable Instrument Act, 1881
where transaction was held to be loan and directors were convicted for
offence.

2. Learned Counsel appearing for the Resolution Professional refuted the

submissions and submits that the cheques numbers were mentioned in
the Builder’s Buyers Agreement and there was only one consideration and
the Adjudicating Authority has rightly held the Appellants as a financial
creditor in a class and the order passed under Section 138 was hit by
Moratorium under Section 14.

3. Issue Notice. Learned Counsel accepts notice on behalf of Resolution

Professional. Let Reply be filed within three weeks. Rejoinder, if any, may
be filed within two weeks thereafter.

4. List both the Appeals on 11.12.2023. We make it clear that the plan
approval application which is pending consideration before the
Adjudicating Authority may be proceeded and decided in accordance with
law, however, that will subject to result of the Appeal.”

35. Needless to add, the present order considering the approval of the Plan will

be subject to the result of the Appeal in I.A. Nos. 1411 of 2023 and 1412 of 2023.

In the wake, IA- 2959/2024 stands disposed of.

36. On 26.05.2023, Mr. Swapnil Gupta, Ld. Counsel for the RP (Applicant in

IA-5003/2021) concluded his submission before a Bench having a different

combination of Members, which included one of us including [Member(J)].

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 77 of 148
Nevertheless, as prayed by the Counsels for the parties opposing the plan,

hearing was deferred to enable them to put forth their submissions to

01.06.2023. Thereafter, hearing could take place in the matter from time to time.

Most of the time, when it came to consideration of IA-5003/2021, Mr. Swapnil

Gupta, Ld. Counsel for the Applicant/RP mostly espoused four standard

arguments to deal with all the objections (ibid) except the objections raised in IA-

295/2024. The standard arguments raised by Mr. Swapnil Gupta time and

again, including on 04.09.2024 are:-

(i) In terms of the order dated 11.06.2021, the only view taken by this

Tribunal was that the DHFL is entitled to get the amount in terms of money

and it cannot be compelled to remain attached with the CD till the Project

is completed. Regarding Kotak Mahindra Bank Limited and Kotak

Mahindra Prime Limited, this Tribunal viewed that they are entitled to get

the payment of Rs. 3 Crores within a specified period and the period not

mentioned in the Plan needed to be specified. As could be noted in Para

60 of the order dated 11.06.2021(supra), in view of the decision of Hon’ble

Supreme Court in Jaypee Kensington Boulevard Apartments Welfare

Association & Ors. vs. NBCC (India) Ltd. Ors. [Civil Appeal No. 3395 of

2020], the suggestion to keep any housing project already complete or near

completion or not having started yet out of the purview of the Resolution

Plan is a commercial wisdom of the CoC and once the CoC has approved

the Resolution Plan by majority vote, no individual homebuyer or an

allottee under Section 5(8) of the Code is entitled under the law to raise

any issue in this regard. When regarding Business Park, this tribunal
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 78 of 148
 directed that the fate of the creditor cannot be attached to the

disposal/sale of the asset of the Corporate Debtor, regarding the Project

Pavillion, about which the Plan provided for realisation of security interest

in the land and construction mortgaged to Kotak Mahindra Bank Limited

and Kotak Mahindra Prime Limited to satisfaction of their claim admitted

during insolvency proceedings after considering claims received on said

project in the manner as set out in Part II of the Plan, this Tribunal did not

interfere and no observation was made. When the said order passed by

this Tribunal was challenged before Hon’ble NCLAT, the same was

concurred to the extent of finding recorded by this Tribunal regarding the

liquidation value of the Appellant. Besides, the finding arrived by this

Tribunal in Para 49 of the order that the units that had already been sold

were no longer the assets of the Corporate Debtor and could not be

liquidated and the contentions of the Objectors that the amounts proposed

to be paid to DHFL, Kotak Mahindra Bank Limited and Kotak Mahindra

Prime Limited is contrary to provisions of Section 30(2)(b) r/w Section 53(1)

of the Code were without force, was not interfered by Hon’ble NCLAT while

passing the order dated 11.04.2023 in Company Appeal (AT)(Ins.) 661 of

2021. The observation made by this Tribunal regarding consideration of

the valuation by CoC again was ordered to be deleted by Hon’ble NCLAT.

(ii) In view of the aforementioned orders passed by this tribunal and by

Hon’ble NCLAT, the required modification in the Resolution Plan has been

made and at this stage, it is not open to this tribunal to examine any issue

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 79 of 148
 other than those which could be flagged by this Tribunal in order dated

11.06.2021 and by Hon’ble NCLAT in order dated 11.04.2023.

(iii) Regarding the claim of homebuyers, since the SRA itself is a consortium

of Resident Welfare Association, a provision has been made in the Plan

that they can stake their claim before SRA and the SRA would examine the

same with reference to the books of accounts and record of the Corporate

Debtor.

(iv) As far as the contention raised by the Ld. Counsel for Kotak Mahindra

Bank Limited and Kotak Mahindra Prime Limited regarding their claim

being attached to speculations in the process of implementation of

Resolution Plan is concerned, as can be seen from the revised Plan, the

provision as contained in the Plan which could be remitted back to CoC

i.e. it would be open to them to appropriate the security mortgage with

them to recover their dues.

37. We heard the counsels for the parties and perused the record. As can be

seen from the order dated 11.06.2021 passed by this Tribunal, the contention

raised by the Ld. Counsel for the Objectors that the amount proposed to be paid

to DHFL, Kotak Mahindra Bank Limited and Kotak Mahindra Prime Limited are

contrary to the provisions of Section 30(2)(b) of the Code read with Section 53(1)

thereof could be rejected. At the cost of repetition, para 49 of the judgment is

reproduced below:

“49. Now, in the light of position of law settled by the Hon'ble Supreme
Court (Supra), we consider the contention of Mr. Sumant Batra, Advocate
and we notice that the amount proposed to be paid in the Resolution Plan is

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 80 of 148
 approved by the CoC. Under Section 30(2)(b) of IBC read with Section 53 of
IBC, 2016, it is the duty of the Resolution Professional to examine the
Resolution Plan, whether the distribution to the Creditors is made in terms
of the provisions of law and Regulations, thereafter the Resolution
Professional shall place the same before the Committee of the Creditors u/s
30(3) IBC 2016 for its approval. The COC after considering the feasibility
and viability, the manner of distribution proposed, may approve the Plan by
not less than 66% of voting share u/s 30(4) of the IBC 2016. It is the
commercial wisdom of the CoC to determine what amounts are to be paid to
different classes and sub classes of creditors in accordance with the
provisions of the Code and the Regulations made thereunder. It is seen that
while deciding the amounts in the instant case, the CoC has considered the
liquidation value placed by the Resolution Professional as well as the
Resolution Applicant as mentioned in aforementioned paragraphs. Since the
units, that have already been sold, are no longer an asset of the Corporate
Debtor and consequently cannot be liquidated, their liquidation value has
been provided as NIL. The COC after considering the same, approved the
amounts proposed to be paid to Kotak Mahindra Bank Limited, Kotak
Mahindra Prime Limited and similarly, to DHFL. Hence, we find, No force in
the contention raised by the Ld. Council for the Objectors That the amounts
which are proposed to be paid to the DHFL, Kotak Mahindra Bank Limited
and Kotak Mahindra Prime Limited are contrary to the provision of Section
30(2)(b) of the IBC read with Section 53(1) of the IBC, 2016.”

38. Apparently, when the appeal preferred against said order was dismissed,

the aforementioned view taken by this Tribunal was specifically and fully

concurred by Hon’ble NCLAT. Para 29 of the order dated 11.04.2023 passed by

Hon’ble NCLAT in Company Appeal (AT)(Ins.) No. 661/2021 reads thus:-

“29. We have also noticed the caveats given by the Valuers in their
Report. The valuation of the different projects including project Universal
Business Park was with the caveats as noted above. The Valuers did not
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 81 of 148
 enter into issue of encumbrance over the assets. The finding has been
recorded by the Adjudicating Authority in paragraph 49 that since the units
have already been sold, are no longer the asset of the Corporate Debtor,
hence, the liquidation value of the Universal Business Park project is NIL.
The Adjudicating Authority has rightly come to the above conclusion after
considering the facts and circumstances of the present case. We fully
concur with the observations made by the Adjudicating Authority in
paragraph 49.”
(Emphasis Supplied)

39. In Para 50 of order dated 11.06.2021 passed by this Tribunal, it could be

viewed that there being differences between the liquidation value submitted by

the two valuers and the valuation assessed by the Resolution Professional and

Resolution Applicant, the CoC might consider taking steps for suitable correction

of the liquidation value of all the projects and ask Resolution Applicant to

account for the same in the Resolution Plan. At the cost of repetition, Para 50 of

the order is reproduced thus:-

“50. However, we notice there is significant differences between the

liquidation value submitted by the Two Valuers and valuation assessed by
the Resolution Professional and Resolution Applicant, therefore, we think
it proper, to leave the matter upon the COC to reexamine this issue and if
the properties/infrastructure in the projects of the corporate debtor is
available for sale/disposal, the COC may consider taking steps for suitable
correction of the Liquidation value of all the projects and subsequently, ask
the Resolution Applicant to account for the same in the Resolution Plan.”

40. However, Hon’ble NCLAT while considering the appeal preferred from

aforementioned order deleted the observation made by this Tribunal regarding

reconsideration of valuation (ibid). The Para 31 of the order passed in the appeal
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 82 of 148
(relevant excerpt of which has already been reproduced hereinabove) reads

thus:-

“31. In view of the foregoing discussions, we are of the view that

observations and directions in paragraph 49 needs to be affirmed,
whereas directions issued in paragraph 50, deserves to be deleted. We
are further of the view that relief (b) and other reliefs claimed in the Appeal
by the Appellants cannot be granted.”
(Emphasis Supplied)

41. In any case, since the appeal preferred before Hon’ble NCLAT from order

dated 11.06.2021 was rejected, the conclusion arrived at by this Tribunal in Para

68 of the order reproduced at Page 10 above would hold good. In terms of the

conclusion recorded in said Para of the order, the Financial Creditors may not

be compelled to remain attached with Corporate Debtor till the project is

completed. The said part of the direction has been complied with by the RP/CoC

and the original Resolution Plan has been changed to the following extent as per

the Addendum filed which reads thus:-

42. One major objection is that the interests of Kotak Mahindra Bank Limited

and Kotak Mahindra Prime Limited cannot be kept attached to implementation

of Plan and they need to be paid the admitted amount of their claim in terms of

money. Regarding the Universal Pavillion Project, the Plan provided that the said

creditors may be allowed to realise their security interest in the land and

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construction mortgaged to them in the Universal Pavillion Project in satisfaction

of their claim admitted during Insolvency Proceedings. The provision made in

this regard was noted in Para 37 of order dated 11.06.2021 passed by this

tribunal.

43. When the provision made regarding payment of Rs. 3 Crores to Kotak

Mahindra Bank Limited and Kotak Mahindra Prime Limited from Universal

Business Park was specifically noted in Clause b of Para 68 of the order passed

by this Tribunal and interfered, the provision made in the Plan regarding

realisation of security interest in Universal Pavillion Project by Kotak Mahindra

Bank Limited and Kotak Mahindra Prime Limited was not interfered by this

Tribunal. The relevant excerpt of the Para 37 of the order i.e. reproduction of

resolution plan reads thus:-

44. Apparently, the order dated 11.06.2021 has been upheld by Hon’ble

NCLAT, thus at this stage, it is not open for us to go behind the said order to

reopen the issue. Even otherwise, when the security interest in the Universal

Pavillion Project is left to be realised by the Kotak Mahindra Bank Limited and

Kotak Mahindra Prime Limited. Thus, it is not so that the claim of the said

Financial Creditors is attached to completion of project. These Financial

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Creditors may dispose of the land and construction in the Project mortgaged to

them and may realise the money. The provision regarding same could be found

in the Resolution Plan which reads thus:-

45. On 31.07.2024 the Ld. Counsels appearing for RP and Kotak Mahindra

Bank Limited and Kotak Mahindra Prime Limited submitted that the SRA and

the Bank had entered into an understanding that in terms of the provision

contained in the Plan approved by CoC, the RP and the Banks would find some

buyers and would dispose of the property which in terms of the Resolution Plan

has already been kept at the disposal of the Banks, subject to certain riders. The

order dated 31.07.2024 and the relevant excerpt from the Resolution Plan reads

thus:-

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 “IA-3099/2023, IA-5003/2021, IA-3089/2021: Mr. Swapnil Gupta,
Ld. Counsel appearing for the RP, and Mr. Bhatt, Ld. Counsel appearing
for the Kotak Mahindra Bank, and Kotak Mahindra Prime submitted that
the RP, SRA and the Banks have entered into understanding that in
terms of the provisions contained in the plan, which has already been
approved by the CoC, the RP and the Banks would find some Buyers
and would dispose of the property, which in terms of the Resolution Plan
has already been kept at the disposal of the Banks subject to certain
riders. According to them, they are already in process of filing
appropriate application before this Tribunal and it would be proper if the
application for Resolution of Plan is taken up along with the said
applications.”
X X X

46. In view of the aforementioned, particularly the order dated 11.06.2021

passed by this Tribunal and upheld by Hon’ble NCLAT, we are not in a position

to countenance the objection regarding the provision being made in the Plan

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providing for realisation of security interest in the Project Pavillion by the Kotak

Mahindra Bank Limited and Kotak Mahindra Prime Limited. Another reason not

to accept the objection is that the CoC approved the Plan as mix arrangement of

resolution insolvency of the CD as also liquidation of a part of its assets. The

issue was also dealt with in order dated 11.06.2021. The Para 34 and 43 of the

order in which the factual position to the effect was recorded reads thus:-

“34. Before making any comments on these submissions, we would like

to refer the Resolution Plan submitted by the Resolution Professional. On
perusal of the Resolution Plan, we notice that it is an admitted fact that
the Resolution Plan has been divided in two parts i.e. Part-I and Part II.
The part-I deals with three projects namely, Universal Green, Universal
Aura and Universal Business Park, in which partial construction work
has been undertaken. These projects are shown as the "going concern"
under the Resolution Plan. Whereas in the Part-II of the Resolution Plan
deals with four projects, namely Universal Square, Universal Prime, the
Market Square, the Pavillion, in which no construction/development work
has commenced and most of the inventory is unsold, and therefore, a
proposal is given for their liquidation. It has been suggested to constitute
a Monitoring Committee appointed by the National Company Law
Tribunal (NCLT) under the Chairmanship of a retired judge to liquidate
these four projects and distribute their proceeds amongst creditors of
these four Projects on a pro rata basis in accordance with the provisions
of Section 53 of IBC including proceeds from recovery made on account
preferential/undervalued transactions.

X X X

43. We further notice that in course of their arguments, the objectors

have also raised a question that only the part of the properties of the
Corporate Debtor are covered with the Resolution Plan whereas the
remaining properties of the Corporate Debtor i.e. the properties shown in
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 part-II of the Resolution Plan are not covered with the Resolution Plan,
which has left these properties without giving a specific proposal in the
plan.”

47. Nevertheless, having taken the view that the issue is covered by the aspect

of commercial wisdom of CoC and is beyond the purview of Section 30(2) of the

Code, this Tribunal refused to accept the objection noted in Para 34 and 43 of

the order. The Paras 46-48 of the order dated 11.06.2021 in terms of which the

objection regarding the Resolution Plan being not in terms of the spirit of the

object of procedure for resolution insolvency could not be countenanced reads

thus:-

“46. While going through the decision of the Hon'ble Supreme Court in
Jaypee Case (Supra), we notice that the power of the Adjudicating
Authority to consider approval of the Resolution Plan has also been
discussed in that case. Therefore, we would like to refer the relevant
paragraphs of the decision, which are quoted below: -

“77. In the scheme of IBC, where approval of resolution plan

is exclusively in the domain of the commercial wisdom of
CoC, the scope of judicial review is correspondingly
circumscribed by the provisions contained in Section 31 as
regards approval of the Adjudicating Authority and in
Section 32 read with Section 61 as regards the scope of
appeal against the order of approval.

77.1. Such limitations on judicial review have been duly

underscored by this Court in the decisions above- referred,
where it has been laid down in explicit terms that the
powers of the Adjudicating Authority dealing with the
resolution plan do not extend to examine the correctness or
otherwise of the commercial wisdom exercised by the CoC.
The limited judicial review available to Adjudicating
Authority lies within the four corners of Section 30 (2) of the
Code, which would essentially be to examine that the
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 resolution plan does not contravene any of the provisions of
law for the time being in force, it conforms to such other
requirements as may be specified by the Board, and it
provides for: (a) payment of insolvency resolution process
costs in priority; (b) payment of debts of operational
creditors; (c) payment of debts of dissenting financial
creditors; (d) for management of affairs of corporate debtor
after approval of the resolution plan; and (e)
implementation and supervision of the resolution plan.

77.2. The limitations on the scope of judicial review are

reinforced by the limited ground provided for an appeal
against an order approving a resolution plan, namely, if the
plan is in contravention of the provisions of any law for the
time being in force; or there has been material irregularity
in exercise of the powers by the resolution professional
during the corporate insolvency resolution period; or the
debts owed to the operational creditors have not been
provided for; or the insolvency resolution process costs have
not been provided for repayment in priority; or the
resolution plan does not comply with any other criteria
specified by the Board.

77.3. The material propositions laid down in Essar Steel

(supra) on the extent of judicial review are that the
Adjudicating Authority would see if CoC has taken into
account the fact that the corporate debtor needs to keep
going as a going concern during the insolvency resolution
process; that it needs to maximise the value of its assets;
and that the interests of all stakeholders including
operational creditors have been taken care of. And, if the
Adjudicating Authority would find on a given set of facts
that the requisite parameters have not been kept in view, it
may send the resolution plan back to the Committee of
Creditors for re-submission after satisfying the parameters.
Then, as observed in Maharashtra Seamless Ltd. (supra),
there is no scope for the Adjudicating Authority or the
Appellate Authority to proceed on any equitable perception
or to assess the resolution plan on the basis of quantitative
analysis. Thus, the treatment of any debt or asset is
essentially required to be left to the collective commercial
wisdom of the financial creditors.”
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 47. In the light of the decision referred above, when we consider the case
in hand and the submissions made on behalf of the objectors, we are of
the considered view that there is a limited scope of judicial review
available to the Adjudicating Authority within the four corners of Section
30(2) of the Code, beyond which the Adjudicating Authority can not go.

48. As per Section 30(2) of the Code, only the following five conditions are
required to be examined as held by the Hon'ble Supreme Court in Jaypee
Case (Supra):
α. Payment of insolvency resolution process costs inpriority
b. Payment of debts of operational creditors
c. Payment of debts of dissenting financial creditors
d. Management of affairs of corporate debtor after approval of
the resolution plan and
e. Implementation and supervision of the resolution plan.”

48. Also on the issue of distribution, in order dated 11.06.2021, this Tribunal

refused to interfere with the view that the same is the aspect that needs to be

looked into by CoC in its commercial wisdom. Para 49 of the order has already

been reproduced hereinabove.

49. Though in terms of the provisions of the IBC, 2016 r/w IBBI (CIRP)

Regulations, 2016 it is for IRP/RP to collate and examine the claims of the

stakeholders and in the present case it is left to SRA to do so during the course

of implementation of Resolution Plan, but the issue could not be considered as

a ground to interfere with the Resolution Plan in the earlier round of litigation.

In the present case, while passing the order appointing the Court Commissioner

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we sufficiently commented upon the issue. The Paras 22-27 of the order dated

01.11.2023 reads thus:-

“22. It is quite surprising that despite the provisions contained in Section

17 of IBC, 2016 (ibid), which provided for recourse to all kinds of resources
at the end of IRP, how the IRP could not verify and collate the claims of the
genuine and bona fide stakeholders in a credible manner and how without
verifying and authenticating the claims of the Creditors/Stakeholders, the
Expression of Interest (EOI) could be invited and at the strength of what
provision of law it could be left to SRA to verify the claims after Forensic
Audit.

23. As can be seen from Section 18 of the IBC, 2016, the Interim
Resolution Professional is required to perform the duties, namely: -

“(a) collect all information relating to the assets, finances and

operations of the corporate debtor for determining the financial
position of the corporate debtor, including information relating to

(i) Business operations for the previous two years;

(ii) Financial and operational payments for the previous two

years;

(iii) List of assets and liabilities as on the initiation date; and

(iv) Such other mattes as may be specified;

(b) receive and collate all the claims submitted by creditors to

him, pursuant to the public announcement made under sections
13 and 15;

(c) constitute a committee of creditors;

(d) monitor the assets of the corporate debtor and manage its
operations until a resolution professional is appointed by the
committee of creditors;

(e) file information collected with the information utility, if

necessary; and

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 (f) take control and custody of any asset over which the
corporate debtor has ownership rights as recorded in the balance
sheet of the corporate debtor, or with information utility or the
depository of securities or any other registry that records the
ownership of assets including-

(i) assets over which the corporate debtor has ownership rights
which may be located in a foreign country;

(ii) assets that may or may not be in possession of the

corporate debtor;

(iii) tangible assets, whether movable or immovable;

(iv) Intangible assets including intellectual property;

(v) Securities including shares held in any subsidiary of the

corporate debtor, financial instruments, insurance policies;

(vi) Assets subject to the determination of ownership by a court

or authority;

(g) to perform such other duties as may be specified by the

Board.”

24. As can be seen from the aforementioned (Section 18(a)(iii) and (b) of
IBC, 2016), it was the duty of the IRP to collect all information relating to
assets, finances, and operations of the Corporate Debtor for determining
its financial position, including information relating to list of assets and
liabilities of the Corporate Debtor and to receive and collate all the claims
submitted by the creditors to him pursuant to the public announcement
made under Section 13 and 15. The dictionary meaning of the term ‘collate’
is to collect information from different places in order to put it together,
examine, and compare it. It is not understood that how without examining
and comparing the claims of the BBA holders etc., the IRP could admit the
same and could constitute the Committee of Creditors comprising such
Financial Creditors whose claims are yet to be confirmed after conducting
the Forensic Audit. We are also unable to appreciate that how the RP could
move an application under Section 21(6a)(b) for appointment of Authorised

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 Representative on behalf of BBA holders, without satisfying himself
regarding the bona fide of their claims.

25. It is also difficult to appreciate that how the RP failed to discharge

his duty in terms of the provisions of Section 25 (2)(e) and (d) i.e., to
maintain the updated list of claims and failed to appoint professionals i.e.,
expert Auditor to conduct the Forensic Audit. And if the IRP/RP had
satisfied himself about the list of creditors/collation of claims then how he
could place a plan which contained the provision regarding verification of
the claim of creditors/stakeholders before the CoC and how could he not
question such provision in the plan? Once, in terms of the provisions of
Section 25(2)(d) of the IBC, 2016, it was for RP to engage the professional
to get the Forensic Audit of the CD to be conducted which he could do as
per the provisions of Regulation 27(3) of IBBI (Insolvency Resolution
Process for Corporate Persons) Regulations 2016, it is against the scheme
of IBC, 2016, to accept the proposal in Resolution Plan regarding
authentication of list of stakeholders/creditors. Besides, what is left to be
decided by SRA is to arrive at a genuine list of creditors, thus it is not
understood that before availability of genuine list of Creditors, how the
CoC could be constituted. Even when the plan is approved by so-called
CoC, one cannot argue that leaving it to SRA to decide the list of bona fide
creditors/stakeholders as per provisions of the Resolution Plan is an
exercise of commercial wisdom of CoC.

26. In terms of the provisions of Section 25(2)(g) of the Code, the

Resolution Professional needs to prepare an Information Memorandum in
accordance with Section 29 of the Code. In terms of the provisions of
Section 29(2) of the Code, the RP is required to provide to RA access to all
relevant information contained in the Information Memorandum in physical
and electronic form. As can be seen from Regulation 36(2)(d) of IBBI
(Insolvency Resolution Process for Corporate Persons) Regulations 2016,
the Information Memorandum shall contain inter alia a list of Creditors
containing the names of the Creditors, the amounts claimed by them, the
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 amount of their claims admitted and the security interest if any in respect
of such claims. As can be seen from Regulation 36(b) of IBBI (Insolvency
Resolution for Corporate Persons) Regulations 2016. It is with reference to
the information contained in IM that the Resolution Applicant submits their
Resolution Plan. Thus, before submitting the Resolution Plan, the PRA must
know the list of Creditors and their claim. In the present case, as can be
seen from the contents of the plan, it is left to SRA not only to finalise the
list of claimants, but also to invite fresh claims.

27. Thus, the RP itself is not clear about the area/units available in the
project to be allotted to the BBA holders/ CD holders. He is also not very
clear about the number of claimants. The decision in this regard cannot be
left to SRA. To a pointed query raised by us regarding the provisions
contained in the plan, reproduced in para 20 hereinabove, both the Ld.
Counsels for both RP and SRA submitted that the provision is residuary. It
is not disputed by the Ld. Counsel for RP that the Applicants herein have
been included in the list of claimants/creditors and are treated at par with
BBA holders, even though they had not submitted any claim. It is also
submitted by Ld. Counsel for the RP that though the area qua the project
has been oversold, but still there is sufficient area to accommodate such
BBA holders, who have come forward with their claims. In view of the fact
that there is no division of units in the project, the RP has confusion
regarding the number of claimants and available units. In the conspectus
facts and circumstances and in view of the plea raised by the RP as also
the uncertain situation regarding the area available in the project, numbers
of claimants and even the admission of their claim, we deem it appropriate
ask the Court Commissioner appointed qua CA-891/2019 and CA-
253/2019 to examine the record, books of accounts and other documents
of CD qua the project in question i.e. the Universal Business Park situated
at Badshapur, Gurgaon i.e. one of the projects of the CD, and would arrive
at an independent conclusion as to whether:- (i) the units qua which the
conveyance deeds were executed in favour of Applicants existed at the

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 time of execution of conveyance deed and had been leased out to the State
Bank of Bikaner and Jaipur, ICCI Bank and IndusInd Bank; (ii) there is
any proof of payment of rent by the aforementioned banks to the
Applicants; (iii) there is record available in the books of accounts of CD’s
to establish that the Applicants had paid full price qua the units in respect
of which the conveyance deeds had been executed in their favour; (iv) the
Applicants ever staked any claim before the IRP/RP qua the units allotted
to them. The Court Commissioner shall submit its report to RP within 03
weeks. The RP would examine the same within 03 days thereafter and file
the Report/ findings of the Court Commissioner with this Tribunal within
07 days thereafter. The fees of the Court Commissioner qua the present
issue would be Rs.2 Lacs, which would be paid Rs. Fifty thousand each
by the Applicants in IAs-1732/2023, 678/2022, 3778/2022 and RP. The
expenses and logistic support to the Court Commissioner would be
provided by the RP. The District Administration shall provide the requisite
police force and other support to the Court Commissioner, as and when
needed, to facilitate the Court Commissioner to perform the aforementioned
job and file her report. Court Officer as also RP would make a copy of this
order available to the Court Commissioner, whose details would be
available in the order passed in CA-891/2019 and CA-253/2019
forthwith. List the IA on 04.12.2023.”

50. In any case, this Tribunal while originally examining the Resolution plan

did not interfere with the same on the grounds noted in our order dated

01.11.2023 and the order was broadly upheld by the Hon’ble NCLAT. Besides,

since the SRA before us is consortium of association of homebuyers we are not

inclined to interfere with the resolution Plan on such ground. Another reason

not to do so is that in terms of the order dated 11.06.2021, which has been

upheld by Hon’ble NCLAT, this Tribunal found the Resolution Plan broadly in

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order, by taking the view that the same could be approved by CoC in exercise of

its commercial wisdom. Here, it would not be out of context to note that after

having reserved the order, we have listed the matter for clarification and during

the course of hearing on clarification i.e. 06.02.2025, when we reserved the

orders again, Mr. Bhatt, the Ld. Counsel for Kotak Mahindra Bank Ltd and Kotak

Prime Limited categorically submitted that after approval of addendum by CoC

and in view of the fact that the representative of Bank would be part of the

Monitoring Committee, he has no objection to the Resolution Plan.

IA-4569/2023:

51. The captioned Application has been preferred by the Applicant under

Section 60(5) of the IBC, 2016 read with Rule 11 of the NCLT Rules, 2016,

seeking directions against the Respondent/RP to allow her uninterrupted access

and not obstruct the lawful ownership and possession of the property i.e. Unit

No. 525, Universal Business Park located at Golf Course Extension Road, Sector

- 66, Gurugram, Haryana (“Unit”). The submissions made in the IA read thus: -

(i) The Applicant has submitted that she is the lawful owner of the Unit

vide registered conveyance deed dated 08.01.2018 and all rights therein

including title and possession vest with her. The copy of Conveyance Deed

executed between the Applicant and the Corporate Debtor is annexed as

Exhibit-A to the application.

(ii) The Applicant has further submitted that corporate insolvency

resolution process (“CIRP”) commenced qua the Corporate Debtor on

03.07.2018 and as soon as it came to the notice of the Applicant, she

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 expressed her concern to the Respondent/RP regarding filing of claim with

the him. The Applicant was informed by the Respondent that she need not

file a claim as nothing is owed by the Corporate Debtor to the Applicant.

(iii) The Applicant then in the year 2020, vide email dated 12.03.2020

enquired with the Respondent whether the Unit could be rented to which

the Respondent/ RP vide email dated 16.03.2020 simply replied 'No'

without assigning any reason. Further, when the Applicant visited

Universal Business Park to check about her Unit she was informed that

premises has been sealed as per the instructions of the Respondent/ RP

and without the consent of the Respondent/ RP entry in the premises is

barred. Thus, the Applicant could not have access to her Unit of which she

is a lawful owner.

(iv) It has been further submitted that the Unit has also been subjected to

resolution plan wherein the units sold prior to CIRP for which conveyance

deeds have been executed will be subject to forensic audits by the

resolution applicant to determine if the said sale is genuine or not.

Cancellation of already executed conveyance deeds has also been proposed

in the resolution plan.

(v) The Applicant has further contended that she stood as lawful owner of

the Unit vide the registered conveyance deed and cannot be denied access

to the Unit since all rights qua the Unit stood transferred to her as

contemplated under Section 54 of the Transfer of Property Act, 1882 read

with Section 17 of the Registrations Act, 1908.

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 (vi) The Applicant has placed reliance upon the judgment of Hon'ble

Supreme Court in the matter of Suraj Lamp and Industries Private

Limited v. State of Haryana & Anr. [(2012) 001 SCC 656l], wherein it

has been held that the immovable property can be legally and lawfully

transferred/ conveyed only by a registered deed of conveyance. Further, in

the matter of Prem Singh & Ors. v. Birbal & Ors. [(2006) 5 SCC 353],

the Hon’ble Supreme Court ruled that it is settled principle of law that

there is a presumption that a registered document is validly executed and

the onus of proof would be on the person who has to rebut the

presumption.

(vii) The Applicant has asserted that the Unit is not part of the asset of the

Corporate Debtor since the Unit has been already sold to the Applicant

vide registered conveyance deed. To strengthen aforementioned, the

Applicant relied upon the judgment of the Hon'ble National Company

Appellate Tribunal in Kotak Mahindra Bank Limited & Anr. vs.

Resolution Professional of Universal Buildwell Private Limited &

Anr. [Company (AT)(Ins.) No. 661 of 2021] wherein the Hon'ble Appellate

Tribunal upheld that units that have already been sold are no longer the

asset of the Corporate Debtor.

52. The RP/Respondent has filed its reply to I.A. 4569/2023 stating therein:-

(i) The Universal Buildwell is a project of the Corporate Debtor measuring

2,15,915 sq. ft. whereas the area sold is 2,55,721.56 sq. ft. as per the

records assessed by the RP and is hence oversold.

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 (ii) The Universal Buildwell Park is an unfinished project, and no

Occupation Certificate has been issued for the same, enabling any lawful

possession to be granted to any units thereby.

(iii) The Clause 1 and 3 of the Sale Deed registered in favour of the

Applicant does not identify the carpet area of the Applicant’s Unit and does

not show handing over possession of any demarcated space to the

Applicant.

(iv) As per the Resolution Plan, an expense of INR 20.32 crore was required

for the completion of building, release of charge of Kotak Mahindra Bank

and Kotak Mahindra Ltd. by payment of INR 3 Crore and further upon

completion within 9 months, units will be allotted to all BBA holders and

conveyance deed holders on a proportionate basis after verification.

(v) The RP filed a report in terms of order of this Tribunal dated 27.05.2019

in C.A. No. 500/2019, wherein it is shown that total area sold is 13,250

sq. ft. by way of BBA and 14,150 by way of Conveyance Deed totalling to

27,400 sq. ft. against total saleable area 20,500 sq. ft.

(vi) Complete payment has been received from the BBA and the

Conveyance Deed holders both. However, some parties prior to the CIRP

commencement date have converted their BBA into Conveyance Deed

while other promoters have not converted their BBA into Conveyance Deed

despite receipt of the fee payment. The Conveyance Deed holders have

been well aware that since 2019 the area of Universal Business Park has

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 99 of 148
 been in Resolution Plan and has also collectively moved an application

being I.A No. 2692/2021 which was dismissed vide order dated

16.07.2021.

53. The findings of the Court Commissioner with respect to the claim of the

Applicant reads thus: -

(i) The Unit in the Conveyance Deed executed in favour of the Applicant

i.e. Ms. Aneeta Gupta did exist at the time of execution of conveyance deed.

(ii) The conveyance deed mentions that Unit no. 525 is on the fifth floor

and the map attached to the conveyance deed does not show any

demarcation of the property or specification of where the unit is located

particularly for Ms. Aneeta Gupta to the exclusion of any other person.

(iii) A payment receipt by the Corporate Debtor has been provided which

evidences that Ms. Aneeta Gupta had paid full price qua the unit in respect

of which the conveyance deed was executed. Prior to the order of this

Tribunal, no claim was made by the Applicant before the RP/IRP quo the

units allotted

54. It is a trite law that all rights qua an immovable property shall stand

transferred as contemplated under Section 54 of the Transfer of Property Act,

1882 if the document i.e. conveyance deed is registered as per Section 17 of the

Registrations Act, 1908.

55. In the wake and in view of the finding recorded in concurred by Hon’ble

NCLAT, the sold property cannot be treated as part of assets of the CD and needs
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 100 of 148
to be excluded. Nevertheless, the project is not complete, and the unit is not

separable in its present condition. Thus, though the Unit in respect of which

Conveyance Deed was executed in favour of the Applicant would not be treated

as part of assets of CD, to make the same as usable as part of the project, the

Applicant would fulfil such terms and conditions which are required to be

fulfilled by other allottees in whose favour BBAs are executed. In light of the

above observation, IA- 4569/2023 stands disposed of.

IA-678/2022, IA-1732/2023 and IA-6746/2023:

56. The captioned applications has been filed by M/s Grace Steel Private

Limited (IA-678/2022) seeking exclusion of Unit No. 104A, 104B, 208A and

208B in Universal Business Park; Mr. Jeetendra S Kaushal & Ors. (IA-

1732/2023) seeking exclusion of their respective units of Universal Business

Park; and M/s Seriatim Enterprises LLP through its Partner Mr. Sanjay Dhody

(IA-6746/2023) seeking exclusion of Unit No. 1-C admeasuring 971.03 sq. ft and

Unit No. 6 admeasuring 1000 sq. ft at the Ground Floor of Universal Business

Park from assets of the Corporate Debtor.

57. It is the case of the Applicants in aforementioned IAs that in terms of

Conveyance Deed, the subject properties stood transferred to the Applicants

wherein full consideration was paid as a result of which the legal title and right

of the subject property vests in the Applicant.

58. The Sale Deed show clear specification of demarcation of the subject

property which was executed between the Applicants and the Corporate Debtor.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 101 of 148
It is evident from the conveyance deed that the subject property has been

transferred after paying full consideration in favour of the Corporate Debtor and

resultantly the legal title and right of the subject property having vested in the

Applicant could no longer be an asset of the CD.

59. The Applicants could refer to the order of this Adjudicating Authority

dated 30.04.2019 wherein it was observed that the allottees having a registered

document in their favour would have legal title as against claim by allottee who

has no legal right. No dispute regarding the veracity of the conveyance deed

entered between the Applicant and the CD could be raised.

60. The Resolution Plan submitted vide IA-1550/2019 could be remitted back

to the CoC for modification in terms of payment vide order dated 11.06.2021

(supra). The order recorded that the Project-Universal Trade Towers has not been

treated as asset of the Corporate Debtor but has been treated as asset of the

allottees of the said Project as entire area has been sold to the allottees.

61. Later, it came of the knowledge of Applicants that the resolution plan

considered Conveyance Deed holder as par with those having Builder Buyer

Agreement and the assets which are subject matter of conveyance deed are

considered as asset of the CD. In order to seek clarification regarding status of

the conveyance deed holders of the Universal Business Park, group of

conveyance deed holders filed an application i.e., IA-2962/2021, which was

disposed of with liberty to raise the issue before the RP in terms of order dated

16.07.2021.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 102 of 148
62. The Applicants in IAs-678/2022 and 1732/2023, wrote representation

dated 06.10.2021 and 24.07.2021 respectively to the Resolution Professional

submitting that the subject property is not an asset of the Corporate Debtor and

should not be made part of either Information Memorandum or Resolution Plan

qua the Corporate Debtor and any part of the Resolution Plan dealing with the

subject property would be illegal and invalid. In response, the Resolution

Professional refused to follow the grievance of the Applicant in IA-678/2022 on

merit on ground that a Resolution Plan has been approved by CoC and

application for approval of same has been filed before the Tribunal. The RP,

however, responded to the IA-1732/2023, stating that the area in Universal

Business Park could be sold by the Ex-Directors of the Corporate Debtor in

excess of available area in regard of which application for appointing Court

Commissioner to determine the rights of allottees/buyers was pending before

this Tribunal. He further stated that Conveyance Deed has been executed

without obtaining Occupation Certificate from the concerned authorities.

63. Thereafter, the CoC approved amended Resolution Plan qua Universal

Park Owners Association without removing the provision by which it treated the

conveyance deed holders at par with those having builder buyer agreement and

the asset which is subject matter of the conveyance deed are considered as asset

of the Corporate Debtor.

64. Some of the Applicants approached this Tribunal raising the issue of

difference between Conveyance Deed and BBA and this Tribunal viewed that

there were some conveyance deed holders with regard to asset of the CD and

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 103 of 148
appointed Court Commissioner qua CA-891/2019 and CA-253/2019 to examine

the record, books of accounts and other documents of the CD in terms of order

dated 01.11.2023. However, since the Applicant in IA-6746/2023 was not one of

the Applicant, it approached the Court Commissioner submitting his

Conveyance Deed and other relevant documents.

65. The Applicants submits that the subject property is not asset of the CD as

the ownership regarding the same has been transferred to the Applicant after

execution of the Conveyance Deed. The same could be recognised by the order

this Tribunal dated 30.04.2019 wherein it was opined that the allottees having

a registered document in their favour would have legal title as against the claim

by an allottee who has no legal right, title or interest for want of a registered

document.

66. The Applicants in IAs-1732/2023 and 6746/2023 also received rent for

the subject property from various banks and a copy of the statement evidencing

the rent is attached to the IA-6746/2023 as Annexure A5 which reads thus:-

“12. The applicant also submitted that a registered Conveyance Deed is

legal and valid in eyes of law and it is not within the power of the CoC qua
the Corporate Debtor and the Resolution Professional to treat the subject
property as part of the Resolution Plan and asset of the CD. Absence of
Occupation Certificate does not in any manner affect the rights transferred
of Applicant. In terms of Section 57 of TPA, 1882 r/w Section 17 of
Registration Act, 1908, it is trite law that once a sale deed is registered and
executed, it is a declaration of ownership in rem and cannot be tinkered
with.”

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 104 of 148
67. The Applicant and other Conveyance Deed Holders were not allowed to file

claims as a financial creditor and were never a part of the CoC qua the CD.

Therefore, the Resolution Plan approved by CoC treating Conveyance Deed

Holder at par with BBA, alters and impinges upon the rights of the Applicant

and make the Resolution Plan binding upon them. Further, the Applicant has

made complete payment for the subject property as against the BBA holders and

equal treatment given to both is disproportionate.

68. Furthermore, to ascertain the correctness of the claims made in IA Nos.

678/2022, 1732/2023 and 3778/2023, this Bench appointed a Court

Commissioner with specific directions in terms of Para 27 of the order dated

01.11.2023 passed in IA-1732/2023, which reads thus: -

“ [...] In the conspectus facts and circumstances and in view of the plea
raised by the RP as also the uncertain situation regarding the area available
in the project, numbers of claimants and even the admission of their claim,
we deem it appropriate ask the Court Commissioner appointed qua CA-
891/2019 and CA-253/2019 to examine the record, books of accounts and
other documents of CD qua the project in question i.e. the Universal Business
Park situated at Badshapur, Gurgaon i.e. one of the projects of the CD, and
would arrive at an independent conclusion as to whether:-

(i) the units qua which the conveyance deeds were executed in favour
of Applicants existed at the time of execution of conveyance deed and
had been leased out to the State Bank of Bikaner and Jaipur, ICCI
Bank and Induslnd Bank;

(ii) there is any proof of payment of rent by the aforementioned banks

to the Applicants;

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 105 of 148
 (iii) there is record available in the books of accounts of CD's to
establish that the Applicants had paid full price qua the units in
respect of which the conveyance deeds had been executed in their
favour;

(iv) the Applicants ever staked any claim before the IRP/RP qua the
units allotted to them.

The Court Commissioner shall submit its report to RP within 03 weeks. ”

69. In compliance with aforesaid direction, the Court Commissioner filed a

report dated 06.06.2024. Furthermore, in relation to IA- 6746/2023, the Court

Commissioner filed a separate report dated 06.06.2024. The aforementioned

reports have been taken on record. The report of the Court Commissioner reads

thus: -

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 106 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 107 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 108 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 109 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 110 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 111 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 112 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 113 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 114 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 115 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 116 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 117 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 118 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 119 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 120 of 148
 [...]

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 121 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 122 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 123 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 124 of 148
70. As can be seen from the report of the Court Commissioner, the conveyance

deeds could be executed in respect of the units claimed by the Applicants in the

captioned IA. However, regarding the receipt of rent wherever claimed by the

Applicants the Court Commissioner could not find any record Without going

deep into the matter, we may refer to Para 49 of the order dated 11.06.2021,

wherein this Tribunal viewed that the Unit that has already been sold are no

longer assets of the Corporate Debtor and consequently cannot be liquidated.

Their liquidation value has been provided as NIL. The Para has already been

reproduced hereinabove. In the appeal preferred against the order, the view

taken in said Para could be specifically concurred by Hon’ble NCLAT. Since, the

Conveyance Deeds are not in dispute, it is held that the units in respect of

Conveyance Deeds have been executed would not be treated as part of the assets
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 125 of 148
of the CD. However, the Court Commissioner has submitted a report indicating

that the areas of the unit qua which CD have been executed are not demarcated.

In any case, since the areas of the units are not demarcated and the same cannot

be used independent of the project, the Applicants would be liable to fulfil such

terms and conditions as are required to make the flats/units in question usable

like other Units in respect of which BBA could be executed in favour allottees.

In the wake, IA-678/2022, IA-1732/2023 and IA-6746/2023 stands

disposed of.

71. Various parameters required to be examined by this Tribunal in terms of

the provisions of Section 30(2) of the IBC, 2016 have already been noted

hereinabove and except the issue of supervision/monitoring of Implementation,

the same is in order. Regarding monitoring, the CoC left it to this Tribunal to

appoint a Monitoring Committee. At the cost of repetition, the relevant provision

of the Resolution Plan is reproduced thus:-

“Appointment of Monitoring Agency for supervision of

implementation of the Resolution Plan:-

Resolution Applicant proposes the constitution of monitoring committee as

under to supervise the implementation of plan:-

1. A person nominated by Hon'ble NCLT (Remuneration to be decided

by Hon'ble NCLT and to be shared by all three Associations in share
of Claims).

2. A Legal professional nominated by Resolution Applicant

(Remuneration to be decided by the Resolution Applicant and to be
shared by all three Associations in share of Claims).

3. One representative from each association i.e. Universal Aura,

Universal Green, Universal Business Park.
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 126 of 148
 4. One representative from lenders as nominated by them.”

72. In the Resolution Plan, a provision has been made that the homebuyers

would be entitled to approach SRA for their claims. The relevant excerpt of the

Resolution Plan reads thus:-

73. For the sake of clarity, the provisions made in the Resolution Plan for those

allottees who have not submitted their claims during insolvency proceedings is

quoted hereinbelow:

X X X

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 127 of 148
 X X X

74. It is apposite to mention that while the IA for approval of resolution plan

stood reserved, the matter was listed on 06.12.2024 for clarification on the

following two points:

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 128 of 148
 A. More clarity on proposed liquidation process with timelines;

B. Which are the Banks involved alongwith their security interests in

the liquidation, and how the same is proposed to be treated.

75. In compliance of the above, an affidavit dated 30.01.2025 (r/w addendum

affidavit dated 12.02.2025), was filed by the RP providing details of the banks

involved alongwith their security interests in the liquidation and how the same

is proposed to be treated under the plan, which reads thus: -

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 129 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 130 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 131 of 148
IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-
2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 132 of 148
 *In terms of the addendum affidavit dated 12.02.2025 filed by RP, at Sl. No. 2, the claim
of the Kotak Mahindra Prime Limited i.e. Rs. 37,34,83,401/- is to be read in addition to
the claim of Rs. 13,92,73,227 of Kotak Mahindra Bank Limited.

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 133 of 148
76. Moreover, the SRA also filed an affidavit dated 03.02.2025 providing in

respect of the clarification sought for the timelines of liquidation process. It was

submitted by the SRA that in case any asset sale is to be done by the Monitoring

Committee, the same shall be endeavoured to be completed within 180 days from

the date of approval of the Resolution Plan by this Adjudicating Authority.

Relevant excerpt of the affidavit filed by SRA reads thus: -

“iii. In respect of the clarification sought for the timelines of liquidation

process, it is stated that in case of any asset sale is to be done by the
Monitoring Committee the same will be endeavour to be completed within

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
Ms. Pallavi Joshi Bakhru vs. M/s Universal Buildwell Private Limited
Page 134 of 148
 180 days from the date of approval of Resolution Plan by this Hon’ble
Tribunal. The dispensation in respect of each project is as provided follows:

S. NO. PROJECT NAME CLARIFICATION

1. Universal Prime There is no change in the approved

Plots in Sohna (S. Resolution Plan by the CoC in its 15th CoC
No. A on Page meeting held on 11.11.2019 and SIDBI is
No. 297 of I.A. the only Financial Creditor who has
No. 5003 of equitable mortgage rights on the residential
2021) plots in this Project. Out of 24 plots, 18
residential plots have been sold as such the
right and title in respect of these 18 sold
plots belong to the Homebuyers. The only
exercisable rights of SIDBI are in respect of
the 6 (six) unsold plots. In terms of the
Resolution Plan (Page 252 of I.A. nO. 5003
of 2021), SIDBI is allowed to realise its
security interest towards satisfaction of
their claim against the Corporate Debtor.

SIDBI can initiate the realisation of its

security interest in the 6 (six) unsold units
immediately after approval of the Resolution
Plan considered as Effective Date of the
Resolution Plan. The rights and title of the 6
(six) unsold plots shall deemed to have been
transferred and security realisation exercise
shall have to be undertaken by SIDBI as per
their established norms and subject to time
taken for any documentation to be executed
by Corporate Debtor as may be required by

IA-5003/2021, IA-678/2022, IA-3778/2022, IA-1732/2023, IA-3099/2023, IA-4569/2023, IA- 6746/2023, IA-

2959/2024 in CP(IB)-456/ND/2018
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 SIDBI.

SIDBI has also filed an Application bearing

I.A. No. 5643 of 2021 seeking directions to
get the Resolution Plan revised and to
provide for release of security interest of all
the 24 units mortgaged to Applicant.
However, the said Application was
dismissed for non- prosecution vide Order
dated 26.05.2023 passed by this Hon’ble
Tribunal.

2. Universal Square Joint Development Agreement dated

(S. No. B on 15.01.2008 was entered between Nova
Page No. 298 of Realtors Pvt. Ltd. and the Corporate Debtor.
I.A. No. 5003 of Further, Nova Realtors Pvt. Ltd. later
2021) transferred the Development Rights to
Tremendous Comped Pvt. Ltd. (now M3M
India Pvt. Ltd.) vide Transfer of
Developments Rights Agreement dated
15.12.2008.
M3M India Private Limited filed a suit
bearing Case No. 187/2015/2017 for
declaration, permanent injunction and
mandatory injunction and has obtained
Order from Ld. District Court, Gurgaon for
cancellation of Development Rights of the
Corporate Debtor vide Order dated
24.01.2018. Copy of Order dated
24.02.2018 passed by the Ld. District Court,
Gurgaon is annexed herewith and marked

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 as Annexure- A. Thereafter, the Corporate
Debtor had filed an appeal bearing Civil
Appeal No. 190 of 2018 against Order
24.02.2021, upheld the Order dated
24.01.2018. Copy of Order dared
24.02.2021 passed by the Ld. ADJ,
Gurgaon is annexed herewith and marked
as Annexure- B.
Aggrieved by Order dated 24.02.2021, the
Resolution Professional further filed an
Appeal bearing RSA No. 284 of 2021 before
the Hon’ble High Court of Punjab and
Haryana. Meanwhile, the Hon’ble High
Court of Punjab and Haryana was pleased
to grant status quo in favour of the Corporate
Debtor vide order dated 04.05.2021. Copy
of Order dated 04.05.2021 passed by the
Hon’ble High Court of Punjab and Haryana
is annexed herewith and marked as
Annexure- C.
During the pendency of Appeal, the
Association of Universal Square moved an
Application bearing C.M. No. 2350-C of 2021
under Order 1 Rule 10 of the Code of Civil
Procedure, 1908, seeking impleadment of
the Association being necessary party.
However, the Hon’ble High Court of Punjab
and Haryana dismissed the said
Application vide Order dated 04.07.2022.
Copy of Order dated 04.07.2022 passed by
the Hon’ble High Court of Punjab and

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 Haryana is annexed herewith and marked
as Annexure- D.

In view of the aforesaid Order dated

04.07.2022, the Association of Universal
Square filed an Appeal before the Hon’ble
Supreme Court bearing C.A. No. 1515 of
2024 and vide Order dated 05.09.2022, the
proceedings before the Hon’ble High Court of
Punjab and Haryana were stayed. Copy of
Order dated 05.09.2022 passed by the
Hon’ble Supreme Court is annexed herewith
and marked as Annexure- E.

The Successful Resolution Applicant shall

pursue the Appeal pending before the
Hon’ble High Court of Punjab and Haryana
as mentioned above. Based on the outcome
of the Appeal, upon disposal of the matter in
favour of the Successful Resolution
Applicant, the Successful Resolution
Applicant shall sale the development rights
within 6 (six) months from the date of the
final Order to the third party and distribute
the proceeds in ratio of their admitted claim.

3. The Market This project is on a land owned by M/s

Square (S. No. C Samyak Projects Private Limited (M/s.
on Page No. 298 SMPPL) and the Corporate Debtor have the
of I.A. No. 5003 development rights with 50-50 share which
of 2021) was later on modified to 43% and 57% is in

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 favour of M/s. Samyak Projects Private
Limited by virtue of Compromise Agreement
before the Ld. District Courts, Gurgaon vide
Order dated 17.04.2013. Consequently, a
settlement agreement dated 18.01.2018
was reached, the Corporate Debtor was
allotted 22,700 Sq. Ft. of super built up area
in the Project i.e. approximately 17.02% of
total area of the project.

Furthermore, an application was filed

bearing I.A. No. 891 of 2019 under Section
45 read with Section 49 of the Insolvency
and Bankruptcy Code, 2016, by the
Resolution Professional before this Hon’ble
Tribunal for reversing the effect of the
transaction under the Settlement Agreement
dated 18.01.2018 and restoring the rights of
the Corporate Debtor to the Market Square
Project as prior to Settlement Agreement
dated 18.01.2018 and the same is pending
before this Hon’ble Tribunal.

The outcome of the aforesaid Application

shall be honoured by the Successful
Resolution Applicant and in case the rights
of the Corporate Debtor is restored in the
allotted area of 22,700 Sq. Ft., upon
disposal of the aforesaid matter in favour of
the Successful Resolution Applicant. The
Successful Resolution Applicant shall sale

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 the allotted area of 22,700 Sq. ft. within 6
(six) months from the date of the final Order
to the third party and distribute the
proceeds, there of between the Homebuyers
of the Corporate Debtor in the ratio of their
admitted claims.

4. The Pavilion (S. The construction activity on this Project has

No. D on Page not started and around 86.4% on inventory
No. 298 & 299 in this Project is unsold.
of I.A. No. 5003
of 2021) The land, future and present construction
has been mortgaged to M/s Kotak Mahindra
Bank Ltd. and M/s Kotak Mahindra Prime
Ltd. and as per the terms of the Resolution
Plan, the only viable option available at this
stage for the Corporate Debtor is to sell- off
the land and distribute the sale proceeds
among the financial creditors viz. M/s Kotak
Mahindra Bank Ltd. and M/s Kotak
Mahindra Prime Ltd. and the Homebuyers in
the ratio of their admitted claim.
As per the terms of the Resolution Plan (S.
No. 2 on Page No. 252 of I.A. No. 5003
of 2021), M/s Kotak Mahindra Bank Ltd.
and M/s Kotak Mahindra Prime Ltd. are
vested with the rights for realising the
security interest in this Project for
satisfaction of claims under this insolvency
resolution proceedings.
Or

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 SRA has already identified the buyer i.e.
RDB Infrastructure and Power Limited and
received an undertaking and Bank
Guarantee towards the Universal Pavilion
property from the buyer. The total sale
consideration towards the Pavilion Property
is INR 43 Crores, as per written submissions
filed by SRA on 12.09.2024 in compliance of
Order dated 04.09.2024. Immediately upon
approval of the Resolution Plan the sale can
be undertaken and the proceeds can be
distributed in accordance with the
Resolution Plan to Kotak Mahindra Bank
and Kotak Mahindra Prime. A Copy of
Undertaking and Bank Guarantee is
annexed herewith and marked as
Annexure- F “Colly”.

*In terms of the addendum affidavit dated 10.02.2025, the word “plots” appears at Sl. No.
1 to Sl. No. 4(1)(iii) in respect of Universal Prime is to be read as “units”.

2. What are the Conditions Precedents to be met for for successful

conclusion of the Resolution/ Liquidation process and what is the
timelines for meeting the same:

There are no conditions precedents in the Resolution Plan and based on

guidance of the Monitoring Committee, the assets will be sold at the earliest
to recover the funds and transfer the proceeds to the respective
beneficiaries.

5. I say and submit that all the pending application before this Adjudicating
Authority after approval of Resolution Plan will be pursue by the Successful
Resolution Applicant.”

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77. Further, in terms of the resolution plan, we deem it appropriate to appoint

Ms. Rashmi Chopra, Senior Adv, already appointed by us as Court

Commissioner, as the Convenor/ Chairperson of the Monitoring Committee to

supervise the implementation of the Resolution Plan. The remuneration of the

Convenor/ Chairperson of the Monitoring Committee shall be Rs. 2,50,000/- per

month. Further, the RP is appointed as an ex-officio member in the Monitoring

Committee. The other members of the Monitoring Committee would be as

follows:-

● A Legal professional nominated by Resolution Applicant

(Remuneration to be decided by the Resolution Applicant and to be

shared by all three Associations in share of Claims).

● One representative from each association i.e. Universal Aura,

Universal Green, Universal Business Park.

● One representative from lenders as nominated by them.

78. In the Resolution Plan, the Resolution Applicant has sought certain

reliefs and concessions that fall under the jurisdiction of different

Government Authorities, and/or are subject to the provisions of different laws

for the time being in force. In this connection, it is made clear that the amount

payable by the SRA in terms of the plan to different creditors, stakeholders,

and to keep the Corporate Debtor as a going concern is not a subject matter

of any condition, assumptions, relief/concessions and/or qualification. It also

needs to be underlined that the provisions of Section 31(4) of IBC, 2016

mandate the Resolution Applicant to obtain the necessary approval required

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under any law for the time being in force within a period of one year from the

date of approval of the resolution plan by the Adjudicating Authority under

Section 31 of the IBC, 2016, in terms of the provisions of Section 14 of the

Code even during the period of CIRP, no default in payment of current dues

is a precondition for continuation of the license, permit, registration, and

similar rights. Thus, even during the moratorium period, the facilities

mentioned above are made available to the CD only when there is no default

in payment of the current dues, on approval of the resolution plan, the

SRA/CD cannot be put on a better footing by exempting it from paying its

legitimate dues under the law.

79. Furthermore, the Code provides for consideration of the claims, by the

IRP/RP in terms of the provisions of Section 18(b) and Section 25(b) read with

the relevant regulations.

80. The Code also provides for the preparation of an Information Memorandum

in terms of the provisions of Regulation 36(2) of IBBI (Insolvency Resolution

Process for Corporate Persons) Regulations, 2016, which contains, inter alia, a

list of creditors along with the amounts claimed by them. Regulation 36(1) of the

CIRP Regulations, provides for submission of the said Information Memorandum

to each member of the COC. Regulation 36A provides for invitation for expression

of interest and Regulation 36B provides for a request for a Resolution Plan. It is

with reference to the Information Memorandum and Evaluation Matrix that the

RP issues a Request for Resolution Plan. The Request for Resolution Plan details

each step in the process and the manner and purposes of interaction between
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the Resolution Professional and the Prospective Resolution Applicant. The

Resolution Plan submitted after consideration of the IM, EM and the RFRP is

then examined by the Committee of Creditors. Even then, it needs to satisfy the

requirements of Regulations 37 and 38 of the extant regulations and only then

it can be approved by the COC in terms of the provisions of Regulation 39 of the

aforementioned regulations. After such approval, the Plan effectively becomes a

contract entered into between CD represented through RP, SRA, the creditors of

the CD, and other stakeholders and is binding on all of them. Section 31(1) of

IBC, 2016, thus takes care of most of the reliefs/concessions/waivers which are

required by the Resolution Applicant. Furthermore, Section 32A of the Code

provides for cessation of the liability for offences committed by the CD prior to

initiation of the CIRP subject to the conditions laid down in the said section.

81. In this context, a reference is made to the decision of Hon’ble NCLAT in

Worldfa Exports Pvt. Ltd Vs. Vivek Raheja and Anr. [Company Appeal (AT)

(Insolvency) No. 827 of 2024 & I.A. No. 2994 of 2024] dated 30.04.2024 wherein

a challenge was laid against the following observation of the NCLT:-

“16. However, the resolution plan shall not be construed as waiver to any
statutory obligations/liabilities arising out of the approved resolution plan
and the same shall be dealt in accordance with the appropriate authorities
concerned as per relevant laws. We are of the considered view that if any
waiver is sought in the resolution plan, the same shall be subject to
approval by the concerned authorities. The same view has been held by
the Hon’ble Supreme Court in Ghanshyam Mishra and Sons Private
Limited vs. Edelweiss Asset Reconstruction Company Limited and
Embassy Property Development case (supra).”

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The Hon’ble NCLAT, however, dismissed the Appeal with the following

observation:

“Adjudicating Authority has already referred to the Judgment of the

Hon’ble Supreme Court in the matter of `Ghanshyam Mishra & Sons
Private Limited’ Vs. `Edelweiss Asset Reconstruction Company Limited’, in
Civil Appeal No. 8129 of 2019, which clearly laid down that all claims
which have not been dealt in the Resolution Plan does not survive after the
approval of Resolution Plan.

6. Insofar as statutory waivers and concessions, Adjudicating Authority

has rightly observed that SRA to file appropriate necessary application
before the necessary Forum/Authority in order to avail the relief and the
concession.

7. The Resolution Plan having been approved it is always open for the
Applicant to make an appropriate application before the Statutory
Authority for grant of such relief as permissible after approval of the
Resolution Plan.

8. It goes without saying that all past liabilities which are not dealt with
in the Resolution Plan stand extinguished by view of the Judgment of the
Hon’ble Supreme Court in `Ghanshyam Mishra & Sons Private Limited’
(Supra) which is a well settled law.”

82. In sum and substance, the SRA/CD would be entitled to no other

relief/concession/waiver from this Adjudicating Authority except those available

to it, as per the provisions of Section 31(1) and 32A of IBC, 2016. The SRA is,

however, at liberty to approach the relevant authorities, who would consider

these claims as per the provisions of the relevant law, in an expeditious manner.

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83. In the sequel to the above, we are inclined to approve the Resolution

Plan along with addendum as approved/recommended by the CoC as placed

by the Applicant before this Adjudicating Authority.

84. Regarding the implementation of the Plan, the SRA is directed to strictly

adhere to the timeline provided in the Resolution Plan as also the Revised

Addendum dated 05.08.2021 as follows:-

i. The total payouts of ₹56.58 crores which encompass the payment of CIRP

costs, employee dues, and operational creditor settlements, key financial

creditors, including DHFL and Kotak Mahindra entities by Universal

Greens, Universal Aura and Business Park would be made within 180 days

from the date of this order.

ii. The construction of Universal Greens Project shall be completed within

a period of 36 months from the date of this order as per the schedule

provided in the Addendum.

iii. The construction of Universal Aura Project shall be completed within a

period of 36 months from the date of this order as per the schedule

provided in the Addendum.

iv. The construction of Universal Business Park Project shall be completed

within a period of 6 months from the date of this order as per the

schedule provided in the Addendum.

v. The completion period of construction activities wherever appearing in

the Resolution Plan approved by CoC in its 15th meeting shall now be
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 considered as changed to 36 months from the Effective Date i.e. date of

approval of the plan by this Adjudicating Authority.

vi. The Monitoring Committee would ensure such assets which need to be

disposed of and the proceeds of which are to be given to certain creditors

in terms of the plan should be disposed as expeditiously as possible

preferably within 180 days with subject to the consent of the creditors

whose dues are to be cleared out of the sale proceeds (as per plan).

85. It is further ordered that:-

(i) All claims which have not been dealt with in the Resolution Plan would not

survive after the approval of the Resolution Plan.

(iii) The SRA/CD would be entitled to no other reliefs/ concessions/waivers

except those are available/permissible to it as per the provisions of Section

31(1) and 32A of IBC, 2016. The SRA is at liberty to approach the relevant

authorities who would consider these claims as per the provisions of the

relevant law in an expeditious manner.

(iv) The Monitoring Committee as provided in the Resolution Plan shall be set

up by the Applicant/RP within 07 days of passing of this Order, which in

turn, shall take all necessary steps for time bound implementation of the

Resolution Plan as per approval.

(v) The order of the moratorium in respect to the corporate debtor passed by

this Adjudicating Authority under Section 14 of the IBC, 2016 shall cease

to have effect from the date of passing of this Order; and

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 (vi) The Resolution Professional shall forward all the records relating to the

conduct of the CIRP and the Resolution Plan to the IBBI for its record and

database.

86. The Court Officer and Resolution Professional (RP) shall forthwith make

available/send a copy of this Order to the CoC and the Successful Resolution

Applicant (SRA) for immediate necessary compliance.

87. A copy of this order shall also be sent by the Court Officer and Applicant

to the IBBI for their records.

Sd/- Sd/-
(SUBRATA KUMAR DASH) (ASHOK KUMAR BHARDWAJ)
MEMBER (T) MEMBER (J)

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