ORDER

The present Application is filed by the Applicant, namely, Kashyap Kanaiyalal Mehta HUF, under section 60(5) of the Insolvency and Bankruptcy Code, 2016 (“Code”) read with rule 11 of the National Company Law Tribunal Rules, 2016 (“NCLT Rules”) impugning the Resolution Plan filed by Respondent No. 3 as the Applicant has been wrongly classified as an “Affected Party/Home Buyer”, which is being violative of the provisions of the Code and the CIRP Regulations. The Applicant has prayed for the following reliefs:

(i) declare that the transaction of the Applicant is prior in time to the loan availed by the Corporate Debtor from LICHFL and therefore there is no requirement of NOC from LICHFL.

(ii) declare as arbitrary and discriminatory those portions of the impugned resolution plan which classifies the financial creditors in a class of Homebuyers into 'affected' and 'unaffected' allottees.

(iii) direct that provisions have to be made in the resolution plan for 'affected' allottees similar to the provisions made in the resolution plan for unaffected allottees.

(iv) direct that the resolution plan should be made fair and equitable towards the various stakeholders. Reject the resolution plan of Respondent No. 5 in entirety in the present form and direct the parties involved to consider and put for approval a resolution plan consistent with the provisions of the Code.

Facts of the Case:-

1. The Applicant submits that he entered into agreement dated 29/05/2017 to purchase Flat D-401 from the Corporate Debtor. The purchase of Flat No D-401 from the Corporate Debtor is prior in date to LICHFL coming on the scene as a lender to the Corporate Debtor. Subsequently the Applicant got flat No D-401 replaced with flat No D- 1403 by the Corporate Debtor and paid the substantial difference of Rs 55,25,000/- as demanded by the Corporate Debtor. The allotment of Flat D-1403 owes its genesis to the original transaction, i.e., letter of reservation dated 29/05/2017, which was entered much prior to the sanctioning of loan from LICHFL. The transaction between the Corporate Debtor and LICHFL is subsequent to the allotment of flat in the name of the Applicant.

2. The transaction of the Applicant for Flat No D-1403 predates the loan taken by the Corporate Debtor from LICHFL. Therefore, there was no question of any NOC. from LICHFL in respect of Flat no 1403. The Respondent No 3 could not have classified the Applicant as an Affected Party" which has not obtained a NOC form LICHFL.

3. While appraising the loan proposal of the Corporate Debtor, LICHFL must have as part of a mandatory procedure obtained from the Corporate Debtor a list of flats sold/earmarked as on the date of such appraisal. It is pertinent to note that the Corporate Debtor received Rs. 28.58 Lakhs as an advance towards Flat D-401 on 29/05/2017 and 30/07/2017. This means that while sanctioning the loan to the Corporate Debtor, LICHFL was in the know that flat no. D-401 has been sold to and reserved for the Applicant.

4. The purpose of seeking NOC from the lender is just to ensure that any proceeds from sale of such property be first utilized to settle the loan advanced by the lender. The Applicant submits that by virtue of allotment letter, dated 29/05/17 for Flat No D-401 and the Allotment Letter dated 30.07.2018 for Flat No D-1403 lieu of Flat D-401 the Applicant has a vested right interest in Flat D-1403. The vested right of the Applicant is substantive in nature that cannot be taken away by a procedural requirement of obtaining NOC of LICHFL which, in fact, was not required to be taken in the case of the Applicant.

5. The impugned resolution plan considers financial creditors in a class who do not have NOC from LICHFL as 'affected' allottees and financial creditors in a class who have NOC from LICHFL as 'non- affected/unaffected' allottees and goes further to discriminate in providing for the two classes of financial creditors in a class. Such discrimination is not in keeping with the judgment p