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Judgment
ORDER
Heard Shri Abhinav Vashisht, Learned Senior Counsel for the Appellants and Ms. Nina R. Nariman, Learned Counsel for the Respondent.
This Appeal has been filed against the order dated 22.11.2021 passed by the Adjudicating Authority (National Company Law Tribunal) New Delhi Bench-II by which I.A 3458/2021 filed by the Appellant has been rejected. Appellants before us are two homebuyers who have voting share of 0.14%. Appellants filed Application I.A 3458/2021 where following reliefs have been sought for:-
“(i)Direct the Resolution Professional to not submit the Resolution Plan before the CoC as it is not compliant under Section 30(2) of the Code.
(ii)Stay the process of voting to be held on 10.08.2021, on the two Resolution Plans as submitted before the Resolution Professional and placed before the CoC.
(iii)Restrain the members of the Association from name calling or defaming the parties herein;
(iv)Pass any other or further order(s) as may be deemed fit and proper in the interest of justice.”
The Application filed by the Appellants came for consideration before the Adjudicating Authority and by order dated 22.11.2021, the Application was rejected.
Shri Abhinav Vashisht, Learned Senior Counsel for the Appellants submits that the Adjudicating Authority has not considered the submissions raised by the Appellants on merit. He submits that the Adjudicating Authority has noted the submissions of the Appellants in para 6 of the impugned order but has not answered the submissions and he submits that the voting pattern which was adopted was not in accordance with law and approval on such voting pattern cannot enure to the benefit of any valid decision. It is submitted that the issue raised was not answered, although in the Application the Applicants have challenged the whole voting pattern by which the decision regarding process of voting project-wise in the CoC has taken place.
Ms. Nina R. Nariman, Learned Counsel appearing for the Respondent refuting the submissions of the Learned Counsel for the Appellants contends that it is not open for the Appellants to challenge the process of voting. Appellant No.1 had also assented the process of voting which is apparent from the record brought on the record by the Resolution Professional. It is submitted that the Appellant wanted to stall the process of consideration of the Resolution Plan and no interim order was granted by the Adjudicating Authority staying the voting process. Voting was completed by the time when Application came for consideration. It is submitted that no error has been committed by the Adjudicating Authority in rejecting the Application filed by the Appellants. It is submitted that the Application which was filed by the Appellants only on 05.08.2021 by that time, in pursuance of the already approved process, the plans were received and they were to be voted on 10.08.2021.
We have considered the submissions of the Learned Counsel for the parties and perused the record.
From the perusal of the prayers made in the Application filed on 05.08.2021, it is clear that the prayers made by the Applicants were (i) direct the Resolution Professional to not submit the Resolution Plan before the CoC (ii) stay the process of voting to be held on 10.08.2021, on the two Resolution Plans. As there was no interim order in the Application, Resolution Plan was put to vote and on 17.08.2021 plan was approved by voting share of 96.93%. The Appellants, as noted above, who have voting share of 0.14% sought to challenge the order impugned, although there is no direct challenge to Resolution Plan which has been approved with the requisite voting share on 17.08.2021. After Resolution Plan is approved, challenge to Resolution Plan is on limited ground. What Appellants’ intent in filing the Appeal is to challenge the Resolution Plan by questioning the process of voting.
We are of the view that at the instance of the Appellants who are only two homebuyers having voting share of 0.14%, issues which are sought to be raised cannot be allowed to be raised and decided in this Appeal. The prayers made in the Application had already become infructuous when the Application came for consideration before the Adjudicating Authority and the Adjudicating Authority did not commit any error in rejecting the Application on the ground that Resolution Plan has already been approved on 17.08.2021. We do not find any error in the impugned order of the Adjudicating Authority warranting any interference in exercise of our appellate jurisdiction. The Appeal is dismissed.