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Judgment
O R D E R
17.11.2023: Heard Shri Krishnendu Datta, learned senior counsel and Shri Abhijeet Sinha, learned counsel appearing for the Appellants and Shri Ravindra Kumar, learned senior counsel along with Mr. U. N. Singh, learned counsel appearing for Greater Noida Industrial Development Authority.
These Appeals have been field against the order dated 01.09.2023 which is a clarification order. These two appeals one by Gold Star Realtors Ltd. – Successful Resolution Applicant and another by 4-5 Homebuyers have been filed by the Appellants being aggrieved by the order. It is submitted that by the said clarification order directions have been issued in Para 10 and 11 which were uncalled for. It is submitted that orders on I.A. No. 4662 of 2020 i.e. Plan Approval Application has been reserved by the Adjudicating Authority on 21.08.2023. It is submitted that prior to that a clarification dated 09.08.2023 by which the Adjudicating Authority has asked for various clarifications from the Successful Resolution Applicant. In compliance of which affidavit has already been filed. It is submitted that directions issued by the clarification order are crucial to the interest of the Appellant and is expression of opinion by the Adjudicating Authority, when all the issues are yet to be decided.
Shri Ravindra Kumar, learned senior counsel appearing for Greater Noida Industrial Development Authority submits that detail objections were filed by Greater Noida to the Plan Approval Application. He further submits that the Greater Noida Authority has to be treated as Secured Creditor. It is submitted that after 01.09.2023, the Committee of Creditors has already held its meeting on 15.09.2023 and has reiterated its earlier stand, hence, order has itself worked out.
We have considered the submission of learned counsel for the parties and perused the record.
Para 10 and 11 which have been referred to by learned counsel for the Appellant are as follows:
“10.During the course of hearing, it was submitted by the Resolution Professional that H2 bidder was selected as the successful resolution Applicant as he scored more votes. For the purpose of comprehensive evaluation of the plans proposed by the two bidders, we find it appropriate to know about the amount which was proposed to be provided by the H1 bidder (M/s Ramavat Infraprojects Private Limited) to various stakeholders in its plan. We request the RP to share the needful with this Adjudicating Authority.
11.We are of the view that the matter may be referred to the RP and the CoC to take a re-look into the matter so that all the stakeholders namely SRA (the developer), G. NOIDA (the land-owning authority) & the homebuyers (the creditors as a class) will have to take haircuts on a pari-passu basis, to make the project financially viable, and not to saddle all the liabilities on the land-owning authority alone, on the premise of it being an operational creditor.”
The order dated 01.09.2023 has been termed as ‘clarification order’ whereas when we look into the directions issued in Para 11, the directions are positive directions to the RP and the CoC to take a re-look into the matter so that all the stakeholders namely SRA, Greater Noida and the homebuyers will have to take haircuts on a pari-passu basis. The above direction is akin to final direction issued by the Adjudicating Authority whereas all the issues including objection by Greater Noida are yet to be decided in the order which has already been reserved.
The submission of Shri Ravindra Kumar that since the CoC has held its meeting and reiterated its earlier stand, the order has worked out also not commend us. The order dated 01.09.2023 still survives and by any resolution of the CoC, the said direction cannot be wiped off.
We, thus, are of the view that order dated 01.09.2023 need to be set aside. We, however, make it clear that we are not expressing any opinion on the claim of either of the parties and it is for the Adjudicating Authority to consider all issues and decide I.A. No. 4662 of 2020 in accordance with law after considering objections raised by the Greater Noida Authority. Both the Appeals are disposed of accordingly.