IDBI Bank vs Jaypee Infra Tech Ltd.

B.S.V. Prakash Kumar, J

C.A. No. 17/2020

Ld. Counsel namely Mr. M.L. Lahoty started arguing on objections/ counter affidavit filed by his client Wish Town Home Buyers Welfare Society in C.A. No. 5/2020.

While opening these objections/ counter affidavit/ paper book, we find that the objector is styled as Respondent, whereas in CA5/2020, this objector is not shown as the Respondent, to make itself as Respondent, this Objector has not even filed an impleadment application. He has not even filed Intervener Application.

CA5/2020 is the application filed by the IRP u/s 13(6) r/w sec.31 and Sec.60(5) of the IBC for approval of the Resolution Plan citing successful resolution applicant (NBCC Limited) as R1, CoC of JIL through IDBI Bank as R2, dissenting authorized representative (AR) Kuldeep Verma as R3, AR for FD holders, Anshu Agarwal as R4 and Mr. Manoj Gaur MD representing suspended Board as R5, but whereas this person is no where shown as Respondent.

In the first para of these objections, it has been mentioned that the applicant is a Registered Society by name Wishtown Home Buyers Welfare Society, representing over 1500 Home buyers of various real estate projects of JAL and JIL. A person namely Sh. Sri Krishan Devraj Mitroo gave an affidavit on behalf of the society stating that he is the authorized signatory of the objector society. In this affidavit also, he has not mentioned who are the persons authorized him to file these objections before this Bench.

He states that he is representing 1500 home buyers of real estate projects, but whereas RP has categorically mentioned that only 448 home buyers voted against the plan. Therefore, it could not be assumed that 1500 home buyers authorized him to file these objections before this Bench. If really those 448 have given authority, that number should be 448, even if assumed that remaining members are JAL members, then also it is the bounden duty of this objector to mention the names of the dissenting creditors of JIL. This person, signatory of the affidavit should have included some other homebuyers in these objections. Moreover, wishtown project is the part of JIL.

When it has been put to the counsel, who is not aware of this situation, he has agreed that cause title and introduction in the Objections are not consistent with each other, still the counsel has sought this Bench to pass appropriate orders over its objections.

It need not be said separately whether any application/ reply or objections or anything filed before, lower Courts or Tribunals basic requirement is, to raise grievance before Court of Law, aggrieved shall file an independent application, or if a person is cited as Respondent, then such Respondent can file reply.

In these objections, we have not seen this person is cited as respondent in CA 5/2020. no independent application is filed. Therefore, we are of the view that this objector has no locus to raise such objections without following the procedure, hence these objections have been rejected without going into the merits of the objections.

When we have passed this order, Counsel Mr. M.L. Lahoty appearing on behalf of Wishtown Home Buyers Welfare Society purportedly represented by Mr. Mitroo has drawn our attention to two orders passed by the Hon'ble Supreme Court of India, one in the Interim application IA No. 190387/ 2019 filed before the Hon'ble Supreme Court of India and another MA No. 2069/2019 asking for annulment of 10.12. 2016 to 16.12.2019 of 3rd round of CIRP of Jayprakash Infratech Ltd., wherein it appears that, on 18.12.2019, Hon'ble Supreme Court of India stated as follows:-

"The reliefs claimed in this application, in our opinion, have been rendered infructuous. However, if any issue arises in reference to the approved plan, the applicant(s) are free to raise the same before the National Company Law Tribunal (NCLT). That be decided on its own merits in accordance with law."

He has also referred an order passed by Hon'ble Supreme Court of India in Interlocutory application 3088 of 2020 filed by Wishtown Home Buyers Welfare Society, wherein Hon'ble Supreme Court of India held that:

"We are not inclined to entertain this application. The application for intervention is accordingly dismissed.

However, if the applicant petitioner has any other remedy he is free to pursue the same in accordance with the law."

On showing these two orders, the Counsel states that he may be allowed to argue on behalf of Wishtown Home Buyers Welfare Society ignoring the objections which are fraught with technicalities.

As to the request made by the Counsel, we express our helplessness to consider the plea of the counsel because whenever any proceedings is initiated or any reply is filed, it shall be filed in accordance with the Law. Moreover, Hon'ble Supreme Court of India has also categorically mentioned giving liberty to Wishtown Home Buyers Welfare Society that the said entity is at liberty to pursue the remedy in accordance with the law.

But for the factual aspect itself is looking false because 1500 home buyers have not voted against the plan, the question of 1500 home buyers filing either objections or application before this bench will not arise.

The Counsel Mr. Lahot has stated that he would supply the list of the home buyers. However, list has not even been mentioned in these objections, the question of granting any permission to provide list after passing this order will not arise.

Accordingly, these objections rejected.