Arti Kanoongo & Ors. vs Shrinathji Business Ventures Pvt. Ltd.

The Bank had given loans to Mr. Vipul Kaushik and Mrs. Kiran Kaushik ('Borrowers') for purchase of flats in the project of the Corporate Debtor i.e., Guman Eternity, situated at Plot No. GH-1, RPA Road, Near Science Park, Shashtri Nagar, Jaipur, ('Property'). The Borrowers offered execution of all necessary documents and creation of a mortgage on the Property to be purchased in order to secure the repayment of the loan amount. The Bank sanctioned a housing loan facility of Rs. 2 Crore in the name of the Borrowers vide sanction letter dated 31.12.2014. The Borrowers had executed the following loan and security documents in favour of the Bank; (1) Housing Loan Agreement, (2) Agreement to Mortgage, (3) Letter of Undertaking for compliance of post release terms and conditions, and (4) Authority letter for deduction of EMI.

A Tripartite Agreement dated 31.12.2014 was also executed between the Borrowers, the Bank, and the Corporate Debtor from whom the Borrowers purchased the Property. The Borrowers authorized the Bank to make the payment of the loan amount directly to the Corporate Debtor. Further, as per the agreement, the purchased Property shall form a part of the security for the housing loan sanctioned by the Bank.

It is submitted that the Corporate Debtor agreed and gave consent that the Bank shall have a lien, and create a charge on the purchased Property by way of first charge and the Borrowers also agreed to create a mortgage for the housing loan granted by the Bank. It was also agreed that in the event of default by the Borrowers, the Bank shall have a right to enforce the security on the said property and a right to sell the property.

The Borrowers failed to maintain the loan account under the aforementioned facility and failed to pay the interest, therefore, the sale deed was not executed in favour of the Borrowers. As per the guidelines issued by the Reserve Bank of India, the Bank classified the outstanding amounts in the accounts of the Borrowers as Non-Performing Assets ('NPA') on 31.08.2016.

In the intervening period, the Bank came to know that the project of the Corporate Debtor i.e., Guman Eternity, was already mortgaged with M/s Dewan Housing Finance Corporation Limited having its office at Warden House, 2nd Floor, Sir PM Road, Fort, Mumbai ('DHFL or Piramal Finance'). In view of the same, the Bank requested DHFL to record its charge on all the flats of the project of the Corporate Debtor. DHFL vide letter dated 19.10.2016 refused to record the charge of the Bank and additionally informed that the land on which the said flats are constructed is already mortgaged with DHFL. Thereafter, the Bank lodged an FIR with CBI, New Delhi for the fraudulent act, and the Investigating Officer of the CBI vide letter dated 07.04.2017 asked the Bank to submit all original papers of the concerned loan accounts.

In the meantime, the CIRP of the Corporate Debtor was initiated vide Order dated 23.12.2021 and Mr. Prashant Agarwal was appointed as the RP. The RP made a Public Announcement on 26.12.2021 for submission of the claims against the Corporate Debtor and the last date for the submission of the claim was 06.01.2022. The Bank could not file its claim within the stipulated timeline as the Bank was not aware of the Public Announcement. The Bank came to know about the CIRP only when the submissions were made by the counsel for the Corporate Debtor before the DRT in the case filed by the Bank under Section 19 of the Recovery of the Debts and Bankruptcy Act, 1993. The DRT proceedings cannot be continued due to the moratorium as prescribed under Section 14 of the Code, 2016.

In due course of time, the Bank submitted its claim of Rs. 3,12,03,927/- (Rupees Three Crore Twelve Lakh Three Thousand Nine Hundred Twenty-Seven Only) in Form-C through E-mail dated 08.03.2023. In response to the same, the RP sent an E-mail dated 20.03.2023 stating that the claim submitted by the Bank could not be admitted since it was submitted beyond the stipulated period as provided under the CIRP Regulations. In revert, the Bank stated that Regulation 12 of the CIRP Regulations is directory in nature and not mandatory, and relied on the Judgment Hon'ble NCLT, Principal Bench in the matter of Edelweiss Asset Reconstruction Company Ltd. vs Adel Landmarks Ltd. CP (IB) 1083 (PB)/2018 wherein it was held that the rejection of a claim on the ground of delay is not sustainable as the provision is directory in nature. Additionally, the Bank filed Written Submissions vide Dairy No. 2040/2023 whereby it reiterated its earlier submissions.

It has been submitted that ED is investigating the Syndicate Bank fraud case under the provisions of PMLA, 2002 wherein the main accused are Mr. Shankar Lal Khandelwal, Builder of Jaipur, Mr. Bharat Bomb, CA of Jaipur, Mr. Vipul Kaushik, key associate of Mr. Bharat Bomb and Mr. Santosh Kumar Gupta, Bank Manager. It is pertinent to note that Mr. Shankar Lal Khandelwal is one of the directors of the Corporate Debtor. In order to commit the offence, various fake/ fictitious bank accounts were opened in the name of family members of Mr. Bharat Bomb and several others for (i) Discounting forged cheques (ii) forged LC discounting, and (iii) Availing Overdrafts/ loans on fake LIC policies.

During 2011-15, the accused namely Mr. Bharat Bomb and his associates misused the KYC documents of his clients/ employees/ family members as well as existing customers of the Syndicate Bank and created more than 150 fictitious firms and companies. On examination of various documents received from numerous agencies and the statements of various persons, it was found that more than 400 suspected persons/ firms were used in the transactions to defraud the Bank.

The instant case before this Adjudicating Authority has its genesis in the Syndicate Bank Fraud’s Second (2^nd) FIR dated 23.03.2017 registered by CBI. The Bank has complained that certain customers have committed fraud in collusion with some officials of the Bank to the tune of of Rs. 20,930.89 Lacs wherein 80 fraudulent house loans, 11 fraudulent loans for commercial properties, 14 forged overdraft facilities, 11 fraudulent term loans and 2 foreign letters of credit at Jaipur Branch and Udaipur Branch, have been provided.

It was contended that Mr. Shankar Lal Khandelwal and his associates fraudulently availed loans of Rs. 58,22,00,000/- (Rupees Fifty Crore Twenty-Two Lakhs Only), and as on 14.02.2018 the outstanding balance in these fraudulent loan accounts is Rs. 60,86,33,905/- (Rupees Sixty Crore Eighty-Six Lakh Thirty-Three Thousand Nine Hundred Five Only).

It emerged during the investigation that Mr. Shankar Lal Khandelwal had availed 43 fraudulent housing loans aggregating to Rs. 47,05,00,000/- (Rupees Forty-Seven Crores Five Lakhs Only) from Syndicate Bank, at Malviya Nagar branch by showing fabricated and forged details of the flat booking at Guman Eternity Block-A and Guman Eternity Block-B project in the names of different persons including himself, his family members in their companies i.e., M/s Shrinathji Business Ventures Pvt. Ltd. and M/s Sanwariyaji Business Ventures Pvt. Ltd. at Shastri Nagar and Subhash Nagar Jaipur respectively.

Later, on examination of various documents available with ED, it was found that one Mr. Bharat Bomb through his associate's accounts transferred Rs. 231.20 Crore to the account of Mr. Shankar Lal Khandelwal. Thereafter, ED had filed Original Complaint wherein the Provisional Attachment Order No. 02/2018 dated 16.05.2018 was passed, and various properties including properties of M/s Sanwariyaji Business Venture Pvt. Ltd. i.e. unsold stock of Guman Eternity Block-B of Flat No. 103, 104, 201, 203, 204, 301, 303, 304, 401, 403, 404, 501, 502, 603, 604, 701, 703, 801, 802 & 804 and Office at 4th Floor, Solaric Building D of Urmi Corporate Park, Plot No. CTS No. 988 (Part), 98C, S. No. 46 (PT) and 47 (PT) of Village Tungwa, Saki Vihar Road, Andheri (E) Mumbai, were attached. Subsequently, the Adjudicating Authority under the Prevention of Money Laundering Act, 2002 ('PMLA') has confirmed the provisional order of Attachment vide its Order dated 09.11.2018.

The Corporate Debtor is under CIRP and the Original Applicants No. 1 to 3 i.e., Respondent No. 1 to 3 herein, are related parties of the Corporate Debtor. Furthermore, Respondent No. 4 is also associated with the Corporate Debtor as he used to do carpentry work for the Corporate Debtor. The claims received from Unsecured Financial Creditors (Home Buyers) as on 20.03.2023 are as follows:

The claim of M/s Omkara Assets Reconstruction Private Limited was also admitted as a secured financial creditor. There is one more secured financial creditor i.e., Canara Bank, whose claim has not been admitted by the RP, since the claim was filed at a belated stage. Further, some additional claims had been received by the RP from Unsecured Financial Creditors, details of the same are as follows:

Subsequent to the filing of the claim of M/s Omkara Assets Reconstruction Pvt. Ltd, 6 more claims were received from the homebuyers and the same were admitted by the RP. On the contrary, the claim filed by Canara Bank was not admitted although the same was filed immediately after the claims of the aforementioned homebuyers. Moreover, it was contended that the RP declined to admit the claim of Canara Bank knowing fully well that the non-admission of the claim of Canara Bank would frustrate the purpose of CIRP as in case of its claim being admitted, Canara Bank would have the highest voting percentage on the basis of its claim value.

The revised list of the CoC along with the voting share of the creditors is as follows:

It is pertinent to note that amongst 17 homebuyers/members of the CoC which are mentioned above, the ED has recorded the statements of some of the homebuyers during the investigation. The names of the homebuyers whose statements have been recorded by ED are as follows:

It was pointed out that the person whose statements were recorded by the ED are employees of either Mr. Bharat Bomb or Mr. Shankar Khandelwal, in different capacities. Copies of statements of the aforementioned person are annexed as Annexure-MA-1 of the instant Application.

In the meantime, some of the members of the CoC who filed their claims at a later stage, wrote letters to the RP to withdraw their claims in view of the statements recorded by the investigating agencies wherein they have stated that they had not made any payments or raised any loan for purchasing the flats.

In relation to the Resolution Plan, the ED contended that the Resolution Plan submitted by the Successful Resolution Applicant ('SRA') i.e., M/s Subhash & Company, does not disclose the complete information with regards to the Resolution Applicant. Moreover, the Resolution Plan was submitted at a meager value against the fair valuation of the assets in question. Further, the Resolution Plan provides for only 5% of the amount towards the claims of the Homebuyers.

It was contended that ED requires complete records from the office of RP such as documents submitted by the claimants in support of their claim, documents of due diligence done by the RP.

The Respondents in the instant IA were desirous of purchasing a residential flat in Guman Eternity, a project by the Corporate Debtor. In pursuance of the same, the answering Respondents booked the flats and made part payment for the flats. Further, it was agreed that the balance consideration for the flats will be paid at the time of the registry of the flats.

In the meantime, in 2016 one of the directors of the Corporate Debtor, Mr. Shankar Khandelwal, was arrested by CBI and the possession of the said flats could not be delivered. Thereafter, in June 2018, the said Director had given an assurance to repay the part sale consideration that had been paid by the Answering Respondents. However, no such amount was repaid to the Answering Respondents.

Subsequently, the Answering Respondents had filed an Application under Section 7 of the Code as Financial Creditors on the premise that they were bonafide purchasers of property (flat) for which they had paid substantial monetary consideration. On the basis of the said facts, this Adjudicating Authority had initiated the CIRP of the Corporate Debtor vide its Order dated 23.12.2021.

Post initiation of the CIRP, a Committee of Creditors ('CoC') was constituted which was further reconstituted subsequently. It was pointed out that the Answering Respondents were not included in the CoC. Accordingly, it is highly premature to apprehend or challenge the CIRP and claims which are filed by the Answering Respondents. In the instant IA, the ED has contended that the Answering Respondents are related parties of Corporate Debtor, even if the Answering Respondents are related parties, then also it will not defeat their right to file their claims under the Code.

Further, the Answering Respondents contended that the CIRP of the Corporate Debtor was not initiated with any fraudulent or malicious intention. The Answering Respondents are bonafide purchasers of the flat for which they had paid a substantial amount to the Corporate Debtor. The Respondents are genuine homebuyers and lawful claimants. Moreover, there is no provision under the Code that debars related parties from filing their legitimate claim.

The purview and scope of the proceeding under the provisions of the PMLA Act, 2002 is significantly different from the proceedings under Section 65 of the Code, 2016. There is no basis or locus standi of ED to challenge the proceedings before this Adjudicating Authority.

The Answering Respondent has booked a flat in the project of the Corporate Debtor by taking a loan from Canara Bank. Concerning the same, an Allotment Letter was issued and an Agreement to Sale was executed between the Answering Respondent and the Corporate Debtor.

Meanwhile, in 2016, one of the Directors of the Corporate Debtor namely Mr. Shankar Khandelwal was arrested by CBI owing to some scam. Subsequent to the arrest, there was an investigation by ED into the affairs of the Corporate Debtor and consequently, various properties of the Corporate Debtor including the project "Guman Eternity" were put under provisional attachment and as a result of that the flat of the Respondent was also attached.

Subsequently, in the year 2018, Mr. Shankar Khandelwal was released from jail and was approached by the Respondent to refund the amount which was invested by him in the project. On the Respondent's insistence, Mr. Shankar Khandelwal agreed and proposed a settlement. Consequently, a settlement agreement was executed in 2018 wherein it was agreed that the Corporate Debtor and the Developer of the Guman Eternity project would return the entire money owed to the Answering Respondent along with the applicable interest in lieu of cancellation of the flat. In 2022, the Answering Respondent came to know about the initiation of CIRP of the Corporate Debtor and filed its claim against the Corporate Debtor and boarded the CoC.

The instant IA has been filed at a belated stage with malicious intention to derail the Resolution Process as provided under the Code. The Answering Respondent is a homebuyer who has taken a loan which is duly recorded in the books of accounts of the Bank. Moreover, it is not the case that the money has been siphoned off by the Answering Respondent.

The Answering Respondent further submitted that the statements of Mr. Gopal Lal Saini cannot be relied upon as the same were recorded by the ED under coercion and undue influence during the investigation.

It is further submitted that ED cannot challenge the decision taken by the CoC in the exercise of its commercial wisdom, whether it is correct or bad in law. The commercial wisdom of the CoC is supreme and cannot be adjudicated by this Adjudicating Authority. Additionally, the Answering Respondent filed Written Submissions vide Dairy No. 553/2024 dated 04.03.2024 wherein he reiterated the contentions raised in the Reply and relied on the following Judgements:

I. Monotrone Leasing (P.) (Ltd.) Vs PM Cold Storage (P.) (Ltd.) [2020 SCC OnLine NCLAT 581]

II. Sanjay Pandurang Kalate Vs Vistara ITCL (India) Ltd. [2023 SCC OnLine NCLAT 713 in Company Appeal (AT) (Insolvency) No 742/2023]

III. A. Tajudeen Vs Union of India [(2015) 4 SCC 435]

IV. Amour Infrastructure LLP Vs Digital Integrated Technologies Pvt. Ltd. [2023 SCC OnLine NCLAT 727]

V. Directorate of Enforcement Vs Rahul Puri [Crl. M. C. 6466/2019 and Crl. M.A. 42700/2019]

VI. Neeta Chemicals Pvt. Ltd. Vs State Bank of India [2018 SCC OnLine NCLAT 158]

VII. M/s Unigreen Global Private Limited Vs Punjab National Bank & Ors. [2017 SCC OnLine NCLAT 610]

The instant IA has been filed by the Applicants who are members of the CoC of the Corporate Debtor and had filed their respective claims against the Corporate Debtor. It is submitted that an IA bearing No. 647/JPR/2023 was filed by ED wherein allegations were made against the Applicants herein concerning genuineness of their claims filed before RP.

It was mentioned that the Applicants were approached by Mr. Shankar Khandelwal, one of the Directors of the Corporate Debtor, for booking the flats in the project namely, Guman Eternity, with the promise to manage the loan facility from the Bank. In view of the same, the Applicants availed a loan facility from Canara Bank and paid the token amount to book the flats in the said project. Consequently, the Corporate Debtor issued allotment letters and executed agreements to sale in favour of the Applicants.

Meanwhile, in 2016, Mr. Shankar Khandelwal was arrested by CBI. Subsequent to his arrest, an investigation was carried out by ED into the affairs of the Corporate Debtor and pursuant to that various properties of the Corporate Debtor including the project Guman Eternity were provisionally attached.

Considering the provisional attachment, the Applicants stopped paying the EMI concerning the home loans. Resultantly, the loan accounts of the Applicants were declared as NPA, and SARFAESI proceedings were initiated against them. In some of the cases, the Hon'ble Debt Recovery Tribunal ('DRT') issued recovery certificates.

In 2022, the Applicants came to know about the initiation of the CIRP of the Corporate Debtor and consequently, they filed their claims before the RP. Later the RP put forth a Resolution Plan for approval of the CoC and the same has been approved by the CoC which is pending before this Adjudicating Authority.

The present Application is filed by Applicants/Members of the CoC to put forth their stand and prove the credibility and genuineness of their claim before this Adjudicating Authority.

The Resolution Plan submitted by M/s Subhash & Co was approved in the 11th CoC meeting wherein 72.12% of the Creditors i.e., the Homebuyers voted in favour of the Resolution Plan, and the sole secured financial creditor, Omkara Asset Reconstruction Private Limited, holding 27.88% voted against the Resolution Plan.

Subsequent to the approval of the Resolution Plan, a letter of intent was issued in favour of the SRA on 19.04.2023 and the SRA was called upon to deposit 10% of the value of the Resolution Plan as performance security. The SRA deposited the required amount i.e., 1.10 Crores, as performance security in the bank account of the Corporate Debtor on 26.04.2023.

As per the Compliance Certificate under Form-H pertaining to the Resolution Plan, the Fair Value of the Corporate Debtor is Rs. 23,64,88,523.50/- (Rupees Twenty-Three Crores Sixty-Four Lakh Eighty-Eight Thousand Five Hundred and Twenty-Three and Fifty Paisa Only) and the Liquidation value is 18,81,38,523.50/- (Rupees Eighteen Crore Eighty-One Lakh Thirty-Eight Thousand Five Hundred and Twenty-Three and Fifty Paisa Only).

The salient features of the Resolution Plan as provided in the captioned IA are reproduced hereunder: -

The compliance aspect of the Resolution Plan under Section and Regulations provided under the Resolution Plan is as under: -

The Answering Respondent has been substituted in the place of Piramal Capital Housing Finance Limited by way of an assignment deed dated 10.01.2023 holds 34% in the CoC voting share.

The Answering Respondent attended the 10th CoC meeting dated 13.02.2023 and for the first time it was apprised about the developments that had taken place with respect to the approval of the Resolution Plan.

Further, it was stated that the 11th CoC meeting was conducted in 4 phases wherein the terms and conditions of the Resolution Plan were finalized. Since the Authorized Representative of the homebuyers was convinced with the Resolution Plan and as the voting share of the Answering Respondent did not affect the approval of the Resolution Plan, no further discussion and negotiation were held.

Therefore, in light of the aforementioned facts the answering Respondent in its commercial wisdom voted against the approval of the Resolution Plan as submitted by M/s Subhah & Co.

The Answering Respondent having an admitted secured financial debt of Rs. 29,59,67,506/- (Rupees Twenty-Nine Crores Fifty-Nine Lakhs Sixty-Seven Thousand Five Hundred and Six Only) with 27.88% voting share in the CoC. The Resolution Plan submitted by Subhash & Co. was earlier rejected since it was only approved by 63.10% instead of 66%. Subsequently, the additional claims were admitted by the RP of some homebuyers and the same Resolution Plan was put forth for voting and it was approved by 72.12% voting share.

It is pertinent to note that in the meantime an IA was filed by ED wherein material documents and arguments were made which goes to the root of the CoC constitution since several homebuyer who allegedly became part of the CoC are fraudulent creditors. Out of the entire class of creditors, six homebuyers had informed the Resolution Professional about withdrawal of their claims much prior to approval of the Resolution Plan by the CoC. Instead of permitting the withdrawal, RP allowed them to be a part of the CoC. Upon the withdrawal of the claims of these homebuyers the class of creditor would drop from 72.12% to 57.35% which is much below the requisite threshold of 66%.

Further Form H of the Resolution Plan does not comply with Section 30 of the Code. The RP himself has stated in his pleading that:

The RP further clarified that the proposed Resolution Plan is not in compliance with Section 30(2)(b) of the Code. The relevant extracts are reproduced hereunder:

The proposed Resolution Plan contravenes Section 30(2)(b) of the Code. For the ease of reference, the relevant extract of Section 30(3) is as follows:

Additionally, the Respondent also relied on the Judgement of the Hon’ble NCLAT in the matter of Peter Beck and Partner Vermoegensverwaltung GmbH Vs Sharon Bio-medicine Limited & Ors. in Company Appeal (AT) (Insolvency) No. 912 of 2023.

I. Directorate of Enforcement Directorate Vs Sh. Manoj Kumar Agarwal & Ors., Company Appeal (AT) (Insolvency) No. 575/2019 dated 09.04.2021

II. Manish Kumar Vs Union of India & Anr., (2021) 5 SCC 1

III. DSK Southern Projects Limited in IA No. 3374/2022 in CP No. (IB) 178/(MB)/CV-IV/2021

DBS Bank India Pvt. Ltd. v/s Rakesh Kumar Jain & Anr. In Company Appeal (AT) (Insolvency) No. 540 of 2021.

K. Sashidhar v/s Indian Overseas Bank MANU/SC/0189/2019

In the present case, an Application under Section 7 of the Code, 2016 had been filed by Mrs. Arti Kanoongo, Mrs. Anita Khandelwal, Mr. Vinod Kumar Kanoongo, and Mr. Shivraj Jangid alleging that they were allottees in the real estate project of the Corporate Debtor i.e., Guman Eternity. It is relevant to mention that Mrs. Anita Khandelwal is the sister of Mr. Shankar Khandelwal. Mr. Vinod Kumar Kanoongo is the brother-in-law of Mr. Shankar Khandelwal and Mrs. Arti Kanoongo is the daughter-in-law of Mr. Vinod Kumar Kanoongo. Further, Mr. Sivraj Jangid was one of the associates of Mr. Shankar Khandelwal and used to do carpentry work at the construction sites of the Corporate Debtor.

The purchase of the flats by the allottees who filed the Application under Section 7 of the Code was financed by Canara Bank (earlier Syndicate Bank) through Tripartite Agreement entered among the allottee/homebuyer, the Corporate Debtor, and the Bank. One of the clauses of the said Tripartite Agreements provided that in the event of cancellation, the Builder/Corporate Debtor shall refund the amount to the Bank. For ease of reference, the said clause of the Tripartite Agreement is reproduced hereunder: -

Subsequently, Mr. Shankar Khandelwal, one of the two directors of the Corporate Debtor, was arrested by the Enforcement Directorate in the Syndicate Bank fraud case wherein he was charged with the allegations of misusing the KYC documents of his clients/employees/family members to fraudulently avail housing loans aggregating to Rs. 20,930.89 Lacs from Syndicate Bank. It is relevant to mention here that the Corporate Debtor i.e., Shrinathji Business Venture Pvt. Ltd., only has one other director namely, Mrs. Guman Khandelwal w/o Mr. Shankar Khandelwal.

After being released from the custody in the fraud case, Mr. Shankar Khandelwal entered into a Consensus Agreement/MOU ('Arrangement') on behalf of the Corporate Debtor with the allottees who initiated the CIRP. In complete violation of the terms of the Tripartite Agreement, the Consensus Agreement executed only between the Corporate Debtor and the Allottee provided for payment of the consideration including the loan advanced by the Bank to the Allottee from the Corporate Debtor.

The Application under Section 7 of the Code for initiation of the CIRP of the Corporate Debtor was filed on the basis of non-fulfilment of the aforementioned consensus agreements. The CIRP of the Corporate Debtor was initiated by this Adjudicating Authority vide Order dated 23.12.2021 wherein Mr. Prashant Agarwal was appointed as Interim Resolution Professional and was later confirmed as Resolution Professional. In compliance with Sections 13 and 15 read with Regulation 6 of CIRP Regulations, 2016, the RP published a public announcement on 26.12.2021 wherein the last date for submission of the claim was 06.01.2022.

The instant case relates to claims of the homebuyers/allottees which fall within the class of creditors that is required to be represented by an Authorized Representative ('AR') as per Section 21(6A) of the Code, 2016. In pursuant to the same, an Application was filed under Section 21(6A) of the Code read with Regulation 16A of the CIRP Regulation, 2016 for the appointment of an Authorised Representative. Ensuing that, this Adjudicating Authority vide Order dated 08.02.2022 appointed Ms. Pratibha Khandelwal as AR for the class of the creditors comprising of the allottees of the Corporate Debtor.

Thereafter, a Report was filed by the RP under Regulation 17(1) of the CIRP Regulations for certifying the constitution of the CoC. The RP after the collation of the alleged claims received against the Corporate Debtor constituted a CoC comprising of the following classes of Creditors:

A. Class of Creditors comprising of the allottees/homebuyers who are represented through the Authorised Representative i.e., Mrs. Pratibha Khandelwal, under Section 21 (6A) of the Code, 2016.

In the backdrop of the aforementioned facts, the ED has contended that the aforementioned allottees namely, Mrs. Arti Kanoongo, Mrs. Anita Khandelwal, Mr. Vinod Kumar Kanoongo, and Mr. Shivraj Jangid, initiated the CIRP of the Corporate Debtor despite knowledge of the fact that the project of the Corporate Debtor namely, Guman Eternity, is under investigation before ED. Further, it has been contended that the said allottees are also related parties of the Corporate Debtor.

Moreover, six of the alleged homebuyers/allottees who are also part of the CoC namely, Mr. Sambhav Jain, Mr. Bhaskar Jain, Mr. Ajay Kumar Arora, Mr. Vipul Kaushik, Mr. Mahendra Meghwal, and Mr. Nitin Parikh, have addressed letters of withdrawal of claims to the RP wherein they have categorically stated that they have not made any payment and they should not be considered as homebuyer or stakeholder. Further, in the said letters, they have requested that their names be removed from the list of members of CoC, if included.

The CIRP of the Corporate Debtor was commenced fraudulently and with malicious intention by the Applicants namely, Mrs. Arti Kanoongo, Mrs. Anita Khandelwal, Mr. Vinod Kumar Kanoongo and Mr. Shivraj Jangid. We hereby impose a cost of Rs. 10 Lakhs upon each of the Applicants under Section 65 of the Code to be deposited within a period of one month from the date of this order with the Pay & Accounts Officer, Ministry of Corporate Affairs, Government of India.

Regarding handling of this matter by the Resolution Professional, Mr. Prashant Agarwal (IBBI/IPA-002/IP-N00031/2016-2017/10068) and the Authorised Representative, Ms. Pratibha Khandelwal (IBBI/IPA-002/IP-N00032/2016-17/10068), we express our concern regarding the lack of professional competence demonstrated by both the Insolvency Professionals in handling this matter.

The Consensus Agreement between the Corporate Debtor and the alleged homebuyers which was entered to oust the claim of the Canara Bank is hereby ignored. Further, we restore the right of the Canara Bank as provided under the Tripartite Agreement in all the loan agreements and safeguard its interest in so far as the money lent under the Tripartite Agreement is concerned.

Further, the Resolution Professional is hereby directed to refund Rs. 1.10 Crores to the Successful Resolution Applicant in lieu of the performance security amount deposited in the bank account of the Corporate Debtor within one month of the date of this order.

A copy of this order shall be forwarded to parties to the case, the Resolution Professional, the Authorised Representative, and the Successful Resolution Applicant.