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Judgment
CLARIFICATION ORDER
The present application (IA-2878 (PB)/2022) has been filed under Section 30(6) and 31 of the Insolvency & Bankruptcy Code, 2016, (the Code) read with regulation 39(4) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 ("CIRP Regulations") on behalf of the Resolution Professional (RP) (Mr. Kashi Vishwanathan Sivaraman), seeking approval of the Resolution Plan submitted by M/s Vasu Buildcon, a SPV of M/s Vasu Infrastructure Private Limited and M/s KPM Infrastructure Private Limited as approved by the members of COC in respect of M/s IVR Prime IT SEZ Private Limited ("CD").
The CD i.e. M/s IVR Prime IT SEZ Private Limited had taken 2 loans for 'short term working capital requirement' of ₹ 2,00,00,000/- on 28.01.2016. and another loan of ₹ 1,45,17000/- on 30.03.2017 from Nupur Finvest (FC) for which the CD's holding company M/s Unnati Fortune Holdings Limited (UFHL) had given a corporate guarantee along with one Mr. Amit Mithas and Smt. Madhu Mithas on behalf of the CD in these loan transactions vide guarantee agreement dated 28.01.2016 and 30.03.2017. FC (Nupur Finvest) has initiated CIRP against the CD on account of default in repayment of loan. M/s Unnati Fortune Holdings Limited is itself in CIRP before this Adjudicating Authority in (CP (IB)/45(PB)/2018 for which a resolution plan has been filed by RP before this Adjudicating Authority.
The CD's articles of association state the business of CD as the business of real estate, infrastructure, villas, shops etc. The CD had executed a lease agreement (lease deed) with New Okhla Industrial Development Authority (NOIDA) vide lease deed dated 7th December 2007. As per the lease deed the Company had acquired/purchased the plot no. GH-05, Sector 144, Noida admeasuring 1,00,000 sq. mtrs. CD thereafter entered into a "General Development Agreement" (GDA) with M/s Unnati Fortune Holdings Limited (UFHL) on 22nd January 2013.
On perusal of the Resolution plan, there are certain queries which need to be answered for the proper adjudication of the matter. Those queries pertain to the subject matter of Resolution plan. Hence, this Adjudicating Authority seeks clarification from the RP/Applicant on the following points:
The land in question i.e. the plot no. GH-05, Sector 144, Noida admeasuring 1,00,000 sq. mtrs. (scheduled land) is on lease vide lease deed dated 7 Dec 2007. As per the lease deed, the company had acquired/purchased the scheduled land from NOIDA. Nothing on record has been placed, neither in Resolution plan nor in Information memorandum regarding the consideration amount, how much amount is paid and how much payment to NOIDA is pending, if any, with respect to above said land. In the information memorandum submitted by the RP, at page no 9, an amount of Rs. 93,35,06,382.20/- is shown as payable to NOIDA under the head 'Liabilities'. It is directed to provide the present status and ownership/title of the Land. Further, it is directed to provide allotment letter of the land by NOIDA along with lease deed dated 7 Dec 2007.
Vide Order dated 05.07.2022, notice has been issued to Greater NOIDA (NOIDA) to file their response in the matter. It appears that due to the clerical error (Greater NOIDA instead of NOIDA has been written which might be reason for non-appearance of NOIDA.) Order dater 05.07.2022 is extracted below:
"This is an application filed by the Resolution Professional Mr. Kashi Viswanathan Sivaraman for the Corporate Debtor i.e. M/s. IVR Prime IT SEZ Private Limited. Mr. Abhishek Anand, Ld. Counsel appearing for the Resolution Applicant states that under the plan a sum of Rs. 10 crores is being paid to all the Operational Creditors, including Greater NOIDA. In that circumstance, we think it is appropriate to issue notice to the Greater NOIDA to file their response in this matter, as to the title over the property. Notice of the application be issued to the Respondent(s)/non-applicant(s), returnable by 26th July 2022 List the matter on 26th July, 2022"
Neither any proof of service has been annexed. Resolution Applicant proposes to pay a sum of Rs. 10 crores to the Operational Creditors including NOIDA Authority. After payment of this amount, the existing layout and building plans shall be deemed to be validated and renewed for a period of 6 years. It is directed to NOIDA to put their appearance and file objections, if any, within 14 days of the receipt of this clarification order. Applicant is directed to serve a copy of this order upon the NOIDA.
General Development Agreement (GDA) states that:
"IVR Prime is a Special purpose company formed by consortium of M/s IVRCL Infrastructures & Projects limited (lead member) and M/s Star Pleat Vincom (P) Limited who was allotted the scheduled land..."
On perusal of the document in IB/ 45(PB)/2018 which is CIRP filed by the same Financial Creditor (Nupur Finvest) against the borrower i.e. UFHL, it is to be noted that Nupur Finvest had given loans of Rs. 3,00,00,000/- and Rs. 2,34,67,000/-to UFHL vide loan agreement dated 28.01.2016 & 30.03.2017. It is found that NOIDA had entered into another lease deed with a Company named M/s IVRCL Limited (Formerly known as M/s IVRCL Infrastructures & Projects limited) vide lease deed dated 23.03.2007 wherein NOIDA had leased a plot of land measuring 72594 sq. mtrs. located at GH-002, Sector 119, Noida for a premium of Rs. 104, 53, 87,200/-. Another GDA was entered into between M/s IVRCL Limited as 'owner of land', IVRCL Assets & Holding Company as 'confirming party' & UFHL as 'Developer' assigning rights to UFHL to develop the land.
There is no clarity as to the relation amongst IVRCL Limited, Star Pleat Vincom (P), IVRCL Assets & Holding Limited, IVRCL Aranya Projects Private Limited, IVR Prime IT SEZ Private Limited and UFHL. It is directed to provide the shareholders of these Companies along with list of Directors/suspended Directors.
GDA dated 22.01.2013 entered between IVR PRIME IT SEZ PRIVATE LIMITED and UFHL states that:
IVR Prime is a special purpose Company, formed by consortium of M/s IVRCL Infrastructures and Projects Limited (Lead member)..."
Did IVRCL Infrastructures and Projects Limited exist on 22.01.2013?
The lease deed entered between NOIDA and M/s IVRCL Limited (formerly known as IVRCL Infrastructures and Projects Limited) was in 2007 as per which IVRCL Infrastructures and Projects Limited had changed its name to IVRCL Limited in 2007 itself.
It is further stated in Information Memorandum that:
"UFHL in collaboration with Company (CD) will develop construct & setup IT and IT enabled services on scheduled land. Moreover, the total cost of construction for setting up and constructing the said project will be borne by UFHL. In consideration of the company providing land & UFHL raising construction of project, they have agreed to divide their share in accordance to Clause 6 of GDA." Clause 6 is extracted below:0
"In consideration of IVR Prime providing Land and the Developer (UFHL) raising construction of the Project as per this agreement, the parties have agreed to divide the entire covered and uncovered areas of the Project in the following manner:
IVR Prime Share: 10%
Developer's Share: 90%"
That the Developer shall have right to book/allot entire constructed area for sale; receive payments, execute agreements, issue permission to create mortgage, sign tripartite agreements of individual allottees and all other connected documents..."
Resolution plan stipulates that RA proposes to honour the terms of the General Development agreement.
Implementation plan and strategy of the RA may kindly be provided. Further, what is the name and status of the project i.e. Unnati world or Aranya or any other. It is directed to provide complete details of the ongoing project.
UFHL's Resolution Plan is pending for approval in IB /45(PB)/2018. UFHL is holding 99.5 % shares in CD. UFHL also has some dues owing to the Nupur Finvest (Financial Creditor). There are at least two projects (Unnati World and the ARANYA) involved in both the IBs (IB 450/ 2018 and IB 45/ 2018). SRA (Vasu Buildcon) is common in both the applications. CIRP Order dated 19.09.2019 in IB 450/2018 para 4 states that:
"Further the Petitioner states that the loans were secured by hypothecation of 15 flats in the under construction township namely The Aranya being developed by the respondent- corporate debtor, by way of hypothecation statement dated 28.01.2016 and also by the guarantee agreement dated 28.01.2016 executed by Shri Anil Mithas, Smt. Madhu Mithas and M/s Unnati Fortune Holdings Limited..."
It is also not clear as to which is/are the project(s) being developed on this CD's land. There is no clarity as to the number of homebuyers (allottees), with which project they are associated and total amount claimed. Further, there is a segregation of class of allottees on page no 12 of Information memorandum and page no 82 and 83 of IA 2878 of 2022. It is directed to provide the list of homebuyers with the name of the project with which they are associated along with total amount claimed, admitted and proposed in the plan.
At page 392 of IA- 2878/2022, it is stated that:
"Any amount refunded/settled by the CD to the customer shall be deducted from the principal of the customer."
This statement is not clear. Justify it.
What is the method followed to find out the liquidation value of the estate? The valuation of the land based on circle rate may kindly be provided.
At page no. 41 of IA 2878/2022, it is stated that:
"Information Memorandum and content at Virtual Data Room as provided by the Resolution Professional and available on the web-portal of the CD provides that there are no dues outstanding towards workmen"
We are of the opinion that this information is not sufficient as far as the provisions of the code is concerned. Provide the list of operational creditors, workmen (if any) and the amount due to them, the admitted amount and proposed amount in the plan.
CIRP costs is not mentioned in Form H, only the time duration is given. Second entry (2) there is a categorization of "creditors without a right to vote" & "who voted in favour of plan". This is not clear as who are these "unsecured financial creditor". The terminologies used at page 43 of (IA 2878/2022) and in Form H are different. Explain. xi. On perusal of the application for approval of Resolution plan in IB 45/2018, it is found on page no 318 that:
"RA shall deduct the recovered amount if any by NUPUR from IVR Prime IT SEZ Private Limited from the amount offered".
As SRA is common in both the applications. Two projects with common developer i.e. UFHL and same Financial Creditor (Nupur Finvest) is involved. It is directed to give a comparison chart and specific provisions wherein the amount has to be adjusted/deducted from the two overlapping plans.
At page no 386 of IA 2878/2022, it is stated that:
"any amount realized on account Transaction Application filed under section 43, 45, 50 & 66 of the IBC of the IBC, 2016 will be to the account of the Creditors and any excess amount will go to the account of Resolution Applicant."
Kindly clarify it. Also, please provide details of all the pending avoidance applications filed under IB 450(PB)/ 2018.
RA Vasu Buildcon is SPV (Partnership firm) with partners Pankaj Mittal, KPM Infrastructure Private limited, Vasu Infrastructure. Percentage of share in the consortium is given but the independent shareholder/promoter information is not given. It is directed to provide the promoter/shareholder information of KPM Infrastructure Private limited, Vasu Infrastructure Private Limited.
The reply to the above queries may be placed by way of an Affidavit within a period of 4 weeks from today.
List the matter on 06.02.2023.