INTERLOCUTORY APPLICATION. No. 26/2022

CP(IBC)No. 2517/MB/C-II/2018

Application filed under Section 60(5) of the Insolvency

and Bankruptcy Code, 2016.

In the matter of

Mr. Rashmi Atlani

Having address at:

Tiles House, Kawardha Bada,

Raipur, Chattisgarh-492001. …Applicant

v/s

Arun Kapoor, Resolution Professional,

Monarch Brookefields LLP,

Having his address at: G-601, Army Co-operative

Housing Society, Sector-09, Nerul (East),

Navi Mumbai, Maharashtra-400706.

…Respondent

In the matter between:

Capri Global Capital Limited

…. Financial Creditor

v/s

CP No. 2517/MB/C-II/2018 Monarch Brookfields LLP …Corporate Debtor Order Pronounced on: - 12.04.2024.

Coram:

Shri. Anil Raj Chellan : Member (Technical)

Shri. Kuldip Kumar Kareer : Member (Judicial)

Appearances (in Physical Mode) :

For the Applicants : Mr. Nitish Bangera, PCS.

For the Respondent : Mr. Amir Arsiwala a/w Nupur Shah and Vidit Divya Kumat.

ORDER Per: Shri. Kuldip Kumar Kareer, Member Judicial.

1. This is an application filed by the Applicant under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 (‘Code’) seeking following reliefs: a. To not approve the resolution plan until flat buyer’s issues are being resolved;

b. Name of the Applicant be included in the list of flat buyers;

c. The Applicant be allotted Flat No. 1103 Georgia or any other alternate flat along with covered car parking in her name;

CP No. 2517/MB/C-II/2018 Case of the Applicant in brief:

2. The Applicant had bought Flat No. 1103 in building named Monarch Brookefields and Wing-Georgia, built by the Corporate Debtor, vide Registered Agreement for Sale dated October 21, 2016 for purchase of the flat for a purchase consideration of INR 43,00,000/- (Rupees Fourty-Three Lakhs only).

3. By an Order dated 27^th September, 2019 passed by this Hon’ble Tribunal, the Corporate Insolvency Resolution Process (‘CIRP’) was initiated against the Corporate Debtor. The Applicant had filed his claim with the IRP/RP of the Corporate Debtor and the claim was admitted and the name of the Applicant was reflected at Serial No. 230 against Flat No. 1103 in the List of Buyer. However, as per the approved resolution plan in 13^th CoC Meetings dated 15.11.2021 and 19.11.2021, the Applicant is only entitled to 25% of the claim amount and not entitled to any flat. Hence this application.

4. Reply of the Respondent: The Respondent has filed his Reply in the above-

captioned matter on Affidavit dated 22^nd March, 2022. The contentions placed by the Respondent are briefly stated as under:

I. It is not the case of the Applicant that the approved resolution plan is illegal, unlawful or in contravention of section 30(2) of the Code. The real grievance of the Applicant appears to be that she will only be entitled to 25% of her admitted claim under the terms of approved resolution plan. Therefore, this is essentially a challenge to the CP No. 2517/MB/C-II/2018 commercial/business terms as set out in the approved resolution plan.

II. It is submitted that the financial creditors belonging to the class of homebuyers have collectively voted in favour of the approved resolution plan and therefore, it is not open to the Applicant to seek to individually challenge the same at this belated stage. It is now settled position of law as per the decision rendered by the Hon’ble Supreme Court of India in Jaypee Kensington Boulevard Apartments Welfare Association & Ors. v/s. NBCC (India) Ltd reported in (2022) 1 SCC 401, that an individual creditor belonging to a class of creditors does not have any locus standi to challenge a resolution plan when the class as a whole has already voted in favour of the same resolution plan.

III. It is an admitted position that the Applicant had paid a sum of Rs. 43 lakhs to the Corporate Debtor for acquiring a residential flat and for this reason, she has been recognised as a financial creditor belonging to the class of allottees. While the Applicant has a registered agreement for sale, it is an admitted position that the Corporate Debtor did not have the p