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Judgment
B.S.V. Prakash Kumar, J
It is a case where the Resolution Professional (RP) filed for approval of Resolution Plan which CoC has not approved with requisite majority as contemplated under the Code, but the counsel appearing on behalf of the home buyers has mentioned that this is a pathetic situation of many of the home buyers who have taken housing loan to pay to the Corporate Debtor with a hope that they would get home to live in. They paid this money with this hope in and around 2012 and 2013, but till date, no house has come to them except they keep paying monthly instalments to the Banker for the loans availed by them.
From other side, the counsel appearing on various Bankers (Financial Creditors) submit that they are under the apprehension that some of the home buyers' claims are not genuine. If that being the case, they would have verified the records lying with this Bench and would have placed correct position before this Bench, so that this Bench would have weeded out the fake claims from the claims of the home buyers who have already paid money to the Corporate Debtor.
As to this aspect is concerned, this has come as an oral statement and in the form of affidavits along with the Forensic Report, but the Auditors have not examined each case of the home buyers to find out as to whether they are fake or real.
Whenever any fraud allegation or having attributes of criminal element in it, it is the bounden duty of the persons making such allegations, to prove it to the hilt disclosing fraud has taken place in it, but no such exercise has been done by the Bankers. The result is, the home buyers have been stuck and they are not in a position of getting the houses half built completed through the Resolution Plan that has come before the CoC.
As to the Bank of India which has 24.97%, though present in the CoC meeting at the time of voting, for the reasons best known to them, the Banker did not vote for or against the resolution placed before the CoC. Had there been a view that home buyers claims are not correct, they would have voted against the resolution. Had they been of the view that the home buyer claims are correct, they should have voted for the resolution. Not taking any decision in respect to the resolution come before the CoC is nothing but dereliction of the duties of the Banker (Bank of India) which has not allowed this Bench to take any decision over this plan. If at all they have any better proposal than the proposal come from the Resolution Applicant, they would have placed it before the CoC or before this Bench, that has also not happened.
These Bankers have appeared before this Bench in the application filed by the Resolution Professional only on the notice given by this Bench. May be, they are under the impression that in case the Resolution Plan is not approved, it will go into liquidation, so that they could realise their money from the assets of the Corporate Debtor. Had that been the idea of Bank of India, they should have voted against the resolution when it came before the CoC.
As to the Resolution Professional, it is evident on record that she has herself stated that the Promoter-Directors have not utilised the money collected from the home buyers to the respective projects and has also stated that they have diverted that money to purchase some other lands which ultimately led to non-completion of the projects for which these home buyers have paid their money. Looking at this statement, I regret to mention that this Resolution Professional has not taken proper steps to initiate actions against the Promoter-Directors as contemplated under the Code, save and except, filing an application against a company which entered into a Sale Agreement with the Corporate Debtor and filing Writ Petition in respect to High Power Tension line going over one of the lands of the Corporate Debtor. But as to fraud the Suspended-Directors alleged to have played upon the remaining stakeholders, this Resolution Professional has not taken any action seeking reliefs to claw back monies siphoned from the company.
Though this application for approval has been placed before this Bench on 10.12.2018, though Bank of India had several times been asked to expedite the process and to look into the material placed before this Bench, until now, Bank of India has not tried to make an attempt to straighten the wrongs committed by the Suspended-Directors, on the top of it, saying that the Resolution Professional has not been providing the documents required to arrive at an opinion over this aspect. When all the documents in respect to the claimants have been summoned before this Bench and the respective files have been kept in the Court custody, I do not know what has prevented this Banker (Bank of India) to inspect those documents to assist this Bench in weeding out the fake claims, if any, in the claims of home buyers group.
All these has been recorded so as to place a real picture on record hoping at least Bank of India as well as the Resolution Professional will hereafter take immediate steps in assisting this Bench in deciding this Resolution Plan placed before this Bench.
It must also be recorded that the home buyers have come forward to further contribute Rs. 1,001 per Sq.ft. for completion of the projects left uncompleted.
As to the Bankers are concerned, according to the present plan pending before this Bench, they will get 64% of their claim proportionate to their voting rights. As to the Bankers claim is concerned, I am not supposed to give any direction in respect to the percentage of their claim but whereas looking at the pathetic situation of the home buyers, I hope that they may take a positive call by next date of hearing.
As to fraudulent transactions, if any, by the Suspended-Directors, this Bench can make a provision entitling these Bankers (Financial Creditors) to realise the funds if any come on proceeding against the Promoter-Directors for realisation of the funds siphoned by them, so that it will become an additional realisation to the Bankers (Financial Creditors).