JAYPEE KENSINGTON BOULEVARD APARTMENTS WELFARE ASSOCIATION & ORS. v. NBCC (INDIA) LTD. & ORS.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J. D Introductory

1Copy pinpoint1. Permission to file special leave petition(s) and leave granted in respective Petition(s) for Special Leave to Appeal.

2Copy pinpoint2. This batch of civil appeals, special appeals and transfer cases essentially relate to the resolution plan1 in the corporate insolvency resolution process2 under the Insolvency and Bankruptcy Code, 20163 concerning the corporate debtor, Jaypee Infratech Limited4, whose activities do impact a large number of persons/entities, including the buyers of flats/apartments5 in its real estate development projects. 2.1. As shall be noticed hereafter, CIRP in relation to the corporate debtor JIL has been entangled in various disputes in the past and even when the resolution plan submitted by the resolution applicant, NBCC (India) Limited6 has been approved by the Committee of Creditors7 by a substantial majority of 97.36% of voting share of the financial creditors,

1 G Hereinafter, at some places, it has also been referred to as ‘the plan’. 2 ‘CIRP’ for short. 3 Hereinafter also referred to as ‘the Code’ or ‘IBC’. 4 Hereinafter also referred to as ‘JIL’. 5 Hereinafter generally referred to as ‘the homebuyers’. 6 Hereinafter also referred to as ‘NBCC’. 7 ‘CoC’ for short. H

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A several disputes/objections have come up from various stakeholders and role players, voicing the concerns of their own, like dissenting financial creditors, dissatisfied homebuyers, displeased land providing agency, disillusioned creditor of a wholly-owned subsidiary of the corporate debtor and disappointed minority shareholders. Apart from all these, the holding company of the corporate debtor, namely, Jaiprakash Associates Limited8 B and its stakeholders have several questions over the resolution process in question and are particularly concerned with the sum of INR 750 crores, which was deposited by JAL pursuant to the orders passed by this Court in the first round of litigation.

3Copy pinpoint3. Looking to a multiload of issues arising from variegated C propositions/objections put forward by different parties, it appears appropriate to draw a brief outline and sketch of the matter at the outset. Brief outline and sketch

4Copy pinpoint4. The cases involved in this batch have got assimilated in this D Court in the following circumstances: 4.1. The corporate insolvency resolution process in relation to the corporate debtor JIL got initiated on 09.08.2017 when the National Company Law Tribunal9, Allahabad Bench admitted the petition filed by one of the financial creditors, IDBI Bank Limited, under Section 7 of the E Code. However, when the Interim Resolution Professional10 invited claims in this CIRP, the treatment of homebuyers became an issue contentious, because they were treated only as ‘other creditors’, not at par with financial and operational creditors. 4.2. The aforesaid position led to the proceedings in this Court, F which were dealt with in a batch of petitions led by Writ Petition (Civil) No. 744 of 2017: Chitra Sharma and Ors. v. Union of India and Ors.11 wherein, several orders were passed by this Court from time to time, inter alia, with directions to JAL, the holding company of JIL, for making deposits in the Court, particularly looking to the claim of refund being made by some of the homebuyers. While finally disposing of the G 8 Hereinafter also referred to as ‘JAL’. 9 Hereinafter also referred to as ‘the Adjudicating Authority’ or ‘NCLT’. As shall be noticed, the matter before the Allahabad Bench was later on transferred to the New Delhi Bench of the Tribunal. These expressions ‘the Tribunal’ or ‘NCLT’ or ‘the Adjudicating Authority’ refer to the said transferee Bench too, as per the given context. 10 ‘IRP’ for short. 11 H Final judgment therein has since been reported as (2018) 18 SCC 575.

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matters on 09.08.2018, this Court took note of several factors, including the nature of projects, interests of a large number of homebuyers and unanimity amongst all the concerned that liquidation of the corporate debtor shall not be in the interest of any stakeholder. This Court also took note of the fact that even the statutorily extended period for concluding the CIRP was over but, there had been a relevant supervening event where, by way of an Amendment Ordinance that came into force on 06.06.2018, the doubts about the status of homebuyers were removed and they were expressly recognised as financial creditors. Having regard to the facts and circumstances, this Court issued a slew of directions for ensuring complete justice in the cause, while exercising its powers under Article 142 of the Constitution of India, by providing for further extended period for conclusion of CIRP; for constitution of CoC afresh; and permitting the IRP to invite fresh expressions of interest for the submission of resolution plans. This Court also provided that the amount of INR 750 crores, ‘which has been deposited in this Court by JAL/JIL shall together with the interest accrued thereon’ be transferred to NCLT, D which would abide by the directions as may be issued by NCLT. 4.3. While the proceedings thus restored by this Court were pending, further question cropped up as to the manner of reckoning the voting percentage of homebuyers in CoC. Two members of NCLT differed in their opinion and the matter was referred to the third member. In the meantime, IDBI Bank sought exclusion, of the period of pendency of the application for such clarification as to the voting percentage, from the period of 270 days for completion of CIRP. While this application was pending, NCLT called upon the concerned parties to file reply on the necessity to proceed further with the CIRP, for considering the resolution plan received from the bidder, subject to the outcome of the pending application. The orders passed by NCLT in relation to these aspects were challenged before the National Company Law Appellate Tribunal, New Delhi12. The Appellate Authority, by its judgment dated 30.07.2019, provided for exclusion of 90 days for the purpose of counting the total period of 270 days and disposed of the appeals with some more observations. This gave rise to further appeals in this Court, led by Civil G Appeal No. 8437 of 2019 [@ D No. 27229 of 2019]: Jaiprakash Associates Limited and Anr. v. IDBI Bank Ltd. and Anr.13, which

12 Hereinafter also referred to as ‘the Appellate Authority’ or ‘NCLAT’. 13 Final judgment therein has since been reported as (2020) 3 SCC 328. H

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A were decided on 06.11.2019. Therein, this Court found that delay in completion of CIRP was attributable to the process of law and neither the homebuyers nor any other financial creditor was to be blamed for pendency of the proceedings; and under the plenary powers, this Court passed yet further orders so as to ensure that an attempt was made for revival of the corporate debtor by submission of revised resolution plans. B 4.4. Running parallel to the proceedings noticed hereinabove, there had been another set of proceedings involving two issues: one, relating to an application filed by IRP before the Adjudicating Authority seeking orders for avoidance of the certain transactions, whereby several parcels of land were put under mortgage with the lenders of JAL, the holding C company of JIL; and second, involving the claim of two of the lender banks of JAL to be included in the category of financial creditors of JIL. These two aspects eventually came up for adjudication of this Court in another batch of appeals led by Civil Appeal Nos. 8512-8527 of 2019: Anuj Jain, Interim Resolution Professional for Jaypee Infratech D Limited v. Axis Bank Limited etc. etc., which were decided on 26.02.202014. This Court held that six out of seven transactions in question were preferential within the meaning of Section 43 of the Code and the directions by NCLT for avoidance of such transactions were upheld. On the second issue, this Court held that the applicant banks were not the financial creditors of the corporate debtor JIL and the respective E orders passed in that regard by NCLT were restored. 4.5. We shall be dilating on the relevant attributes of the aforesaid previous rounds of litigation at the appropriate stage and juncture hereafter. Suffice it to notice for the purpose of brief outline that the resolution plans submitted by two applicants were put to vote of the Committee of F Creditors and finally, the resolution plan submitted by NBCC (India) Limited was approved by the CoC on 17.12.2019, by a vast majority of over 97% of voting share of the financial creditors. Thereafter, on 19.12.2019, the Interim Resolution Professional moved an application before the National Company Law Tribunal, Allahabad Bench, being G C.A. No. 5 of 2020 in CP (IB) No. 77/ALD/2017, for submission and approval of the resolution plan in terms of Section 30(6) read with Sections 31 and 60(5) of the Code and Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate 14 Final judgment therein has since been reported as Jaypee Infratech Ltd. Interim Resolution Professional v. Axis Bank Ltd. and Ors.: (2020) 8 SCC 401. H

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Persons) Regulations, 201615. Later on, the proceedings pending before A the Allahabad Bench of the National Company Law Tribunal were transferred to its Principal Bench at New Delhi wherein, several objections/suggestions/propositions were submitted by different stakeholders, going for or against the resolution plan or even off on a tangent. B 4.6. By its order dated 03.03.2020, the Adjudicating Authority (NCLT), proceeded to approve the resolution plan with some modifications and certain directions while accepting some of the objections like those of the dissenting financial creditor bank and the land providing agency but while rejecting some other, including those of the holding company of JIL and while leaving a few propositions open for adjudication in the appropriate forum16. 4.7. The resolution applicant NBCC preferred an appeal against the aforesaid order dated 03.03.2020 before the National Company Law Appellate Tribunal, New Delhi, being Company Appeal (AT) (Insolvency) No. 465 of 2020 wherein the Appellate Authority, while issuing notice to the unrepresented parties, made an interim order dated 22.04.2020 that the approved resolution plan may be implemented subject to the outcome of appeal but at the same time, also provided that IRP may constitute an ‘Interim Monitoring Committee’ comprising of the successful resolution applicant (NBCC) and three major institutional financial creditors, who were the members of CoC. 4.8. As against the aforesaid order dated 22.04.2020, six associations of homebuyers in the real estate development projects of the corporate debtor and a few individual homebuyers approached this Court seeking permission to maintain their appeals under Section 62 of the Code. Notices were issued on the prayers so made, returnable on 06.08.2020. 4.9. On 06.08.2020, it was urged before us that several appeals against the said order dated 03.03.2020 were pending before NCLAT; and the parties agreed that those appeals may be withdrawn to this G Court and be heard alongwith the aforesaid appeals of the associations and homebuyers to avoid the likelihood of further delay in the matter.

15 Hereinafter also referred to as ‘the CIRP Regulations’. 16 A few typographical errors in this order dated 03.03.2020 were corrected by NCLT by its order dated 17.03.2020. H

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A Acceding to the request, we had withdrawn the mentioned appeals for analogous hearing with the matters pending before us. By way of interim, while staying the operation of the impugned order dated 22.04.2020, we had provided that the IRP shall continue to manage the affairs of the subject company i.e., JIL. Accordingly, the appeals pending before the NCLAT, being Company Appeal (AT) (Insolvency) Nos. 486, 488, 475, B 478, 480, 489, 506, 547, 544 and 630 of 2020 have been transferred to this Court and are registered as transferred cases. Further to this, three more matters have been filed directly in this Court, with the respective petitioners/appellants having different sets of grievances against the NCLT’s order dated 03.03.2020. A few impleadment/intervention applications have also been filed in these matters with the applicants seeking to project their own propositions/viewpoints and/or objections in relation to the resolution plan in question.

5Copy pinpoint5. It is, therefore, apparent that the resolution plan, as approved by the CoC on 17.12.2019 and the order dated 03.03.2020, as passed by the Adjudicating Authority (NCLT) in approval of the resolution plan with certain directions and modifications, are the pivots of the present litigation and a subsidiary of these pivots is the interim order dated 22.04.2020, as passed by NCLAT in the appeal filed by the resolution applicant NBCC, providing for composition of an ‘Interim Monitoring Committee’ while implementing the resolution plan. E The parties and their respective roles and interests in the matter

6Copy pinpoint6. For what has been noticed in the outline, and in view of the adjudication required of various issues raised and different reliefs claimed in these matters, with several parties carrying different roles and status, worthwhile it would be to narrate, in brief, the relevant particulars of the key parties involved, with their feasible classification in terms of their respective interests.17 6.1. The main parties before us in this batch, in terms of their respective stands, contentions and viewpoints vis-à-vis the aforementioned pivots could be broadly divided in two categories. One category is of the parties who stand for the resolution plan, as approved by the CoC but

17 This introduction of persons/entities is to broadly co-relate the parties with the points to be taken up for determination; and is not intended to be an exhaustive list of the parties involved.

JAYPEE KENSINGTON BOULEVARD APARTMENTS WELFARE 623 ASSOCIATION v. NBCC (INDIA) LTD. [DINESH MAHESHWARI, J.]

who state grievance against a few parts of the aforesaid orders dated A 03.03.2020 and 22.04.2020, insofar as providing for modification of the resolution plan and modified mechanism for its implementation. The other category is of the parties who carry grievances against the resolution plan for one or more of its prescriptions or omissions; and/or who are dissatisfied with the order dated 03.03.2020 insofar as their objections have either been rejected or not taken into account; and/or who are dissatisfied with the order dated 22.04.2020 for the reasons different than those of the parties of first part. The parties standing for the resolution plan

7Copy pinpoint7. The two entities who need not, as such, be aligned with any of the other contesting parties but for practical purposes, stand for the resolution plan as approved by CoC are: (i) the corporate debtor company in whose relation the resolution plan has been adopted and approved; and (ii) the Interim Resolution Professional. They may be introduced as under: D 7.1. Jaypee Infratech Limited (JIL): It is the corporate debtor company in whose relation CIRP has been taken up and the resolution plan has been made and approved. This company was essentially set up as a special purpose vehicle18 after its holding company Jaiprakash Associates Limited (JAL) was awarded the rights for construction of an Expressway from Noida to Agra; and a Concession Agreement19 was entered into with the Yamuna Expressway Industrial Development Authority20. With setting up of this company JIL, apart from other projects, housing plans were envisaged for construction of real estate projects in two locations of the land acquired, one in Wish Town, Noida and another in Mirzapur. A substantial mass of disputes in the present matters has its roots in the dealings of this company JIL with the real estate development projects as also in its dealings with the homebuyers and the lending institutions. 7.2. The Interim Resolution Professional Anuj Jain (IRP): G He is the Interim Resolution Professional in CIRP concerning JIL. He has taken steps and proceedings from time to time as envisaged by the Code, including dealing with the claims of a variety of creditors; 18 ‘SPV’ for short. 19 ‘CA’ for short. 20 ‘YEIDA’ for short. H

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A making an application for avoidance of certain transactions as being preferential, which was finally dealt with and accepted by this Court in the aforementioned judgment dated 26.02.2020; presenting the resolution plans for voting by CoC; and submitting the approved resolution plan to the Adjudicating Authority. In relation to the order dated 03.03.2020 as passed by NCLT, the appeal filed by him before NCLAT, essentially B questioning the jurisdiction of NCLT to modify the resolution plan and to change the mode of payment to the dissenting financial creditors, being Company Appeal (AT) (Insolvency) No. 486 of 2020, stands transferred to this Court and is registered as T.C. (C) No. 234 of 2020. He is respondent in almost all other cases.

8Copy pinpoint8. The major set of parties who stand for the approved resolution plan and seek its implementation while stating objections/grievances against the modification parts of the order dated 22.04.2020 as passed by NCLAT and the order dated 03.03.2020 as passed by NCLT are the following: D 8.1. NBCC (India) Limited (NBCC): NBCC (India) Limited is the resolution applicant and had prepared the resolution plan for JIL, which was approved by a majority of 97.36% of the voting share of the CoC. NBCC seeks setting aside of those parts of the order dated 03.03.2020 where the NCLT has modified some of the terms of resolution plan and/or has issued certain directions. The appeal filed by this company, being Company Appeal (AT) (Insolvency) No. 475 of 2020, stands transferred to this Court and is registered as T.C. (C) No. 236 of 2020. This company is also the respondent in various other appeals/petitions and has comprehensively opposed the objections raised against the resolution plan.21 8.2. IDBI Bank Limited: This bank is standing in the capacity of an institutional financial creditor of the corporate debtor JIL. The corporate insolvency resolution process in relation to the corporate debtor JIL, which has culminated in the approval of the resolution plan submitted by NBCC, got initiated pursuant to an application moved by this bank under Section 7 of the 21 This company has introduced itself in its resolution plan as “Navratna” status Central Public Sector Enterprise, under the aegis of Ministry of Housing and Urban Affairs, Government of India, having diversified its areas of operation in various segments including real estate.

JAYPEE KENSINGTON BOULEVARD APARTMENTS WELFARE 625 ASSOCIATION v. NBCC (INDIA) LTD. [DINESH MAHESHWARI, J.]

Code before the NCLT. This bank leads a set of nine institutional financial creditors including itself, who have voted in favour of the resolution plan in question; and stands in support of the resolution plan while opposing the contentions urged on behalf of the parties on the other side. 8.3. Jaypee Kensington Boulevard Apartments Welfare Association and 5 others: B They are the associations of homebuyers who have invested in the housing projects floated by JIL. They are appellants in Civil Appeal No. 3395 of 202022, questioning the order dated 22.04.2020 as passed by NCLAT and essentially submit that the resolution plan as approved by NCLT deserves to be implemented. C 8.4. Ishwar Jha and 6 others: They are individual homebuyers of the flats in the development projects initiated by JIL. They are appellants in Civil Appeal No. 3396 of 202023, questioning the order dated 22.04.2020 as passed by NCLAT and they also essentially submit that the resolution plan as approved by D NCLT deserves to be implemented without further delay. 8.5. Krishna Dev Mishra and 2 others: They are also individual homebuyers of the flats in the development projects initiated by JIL. They are applicants of I.A. No. 87967 of 2020 E in Civil Appeal No. 3395 of 2020 and similarly submit that the resolution plan as approved by NCLT deserves to be implemented without further delay. 8.6. Major General Praveen Kumar and Colonel V.S. Gaur: They are the homebuyers who have moved applications for F impleadment/intervention in Civil Appeal No. 3395 of 2020, being I.A. Nos. 73323 of 2020 and 73330 of 2020 respectively, essentially seeking directions to NBCC to complete the remaining works on priority basis in Tower Nos. 5 to 12 and 14 to 16 in Kensington Park – 1, Jaypee Greens, Noida so that the possession of flats could be handed over to the buyers. G The objectors

9Copy pinpoint9. The persons/entities who carry grievance/s against the resolution plan for one reason or the other; and/or who are dissatisfied with the 22 @ Civil Appeal Diary No. 14741 of 2020. 23 @ Civil Appeal Diary No. 15061 of 2020. H

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A order passed by the NCLT and/or by the NCLAT, may be grouped with reference to the objections/propositions they stand for.

10Copy pinpoint10. The first set of objectors consists of such persons/entities who otherwise belong to the class of ‘homebuyers’ but have their own grievances in relation to the resolution plan and the subsequent orders. B This set of parties could be introduced as follows: 10.1. Wish Town Home Buyers Welfare Society: This is a society of homebuyers in the projects of JIL who seeks implementation of the projects but carries reservations on some of the terms of the resolution plan, where the requisite compensation in relation to the delayed implementation of the projects by JIL has not been provided, particularly in terms of Section 18 of the Real Estate (Regulation and Development) Act, 201624. It has also been suggested that the plan of another resolution applicant Suraksha Realty was far better than that of NBCC. This society also has the grievance that NBCC has failed to specify in the resolution plan the treatment and utilisation of the sum of INR 750 crores received from JAL as also 758 acres of land that had come to JIL after the judgment of this Court dated 26.02.2020. This society had filed Company Appeal (AT) (Insolvency) No. 506 of 2020 before NCLAT against the said order dated 03.03.2020 that stands transferred to this Court and is registered as T.C. (C) No. 243 of 2020. E This society has also moved an application, I.A. No. 72707 of 2020 in Civil Appeal No. 3395 of 2020 with the submissions against continuation of NBCC in the proposed ‘Interim Monitoring Committee’. 10.2. Jaypee Aman Owners Welfare Association:

F This is an association of homebuyers in one of the projects of JIL namely, Jaypee Greens Aman in Sector 151 Noida. This association maintains that in substance, ‘Project Aman’ stands completed; that Offer of Possession25 has already been issued to the allottees of 22 Towers; that delayed penalty ought to be allowed in relation to Tower Nos. 23 and 24 for which, OOP has been issued by IRP; and that IRP ought to G take steps for OOP for flats in Tower Nos. 25 and 27 for which, the application for Occupancy Certificate26 has already been moved. This association is aggrieved of the projected date/s of completion and 24 Hereinafter also referred to as ‘RERA’. 25 ‘OOP’ for short. 26 ‘OC’ for short. H

JAYPEE KENSINGTON BOULEVARD APARTMENTS WELFARE 627 ASSOCIATION v. NBCC (INDIA) LTD. [DINESH MAHESHWARI, J.]

proportional increase in delay, as provided in the resolution plan. As against the said order dated 03.03.2020, this association had filed Company Appeal (AT) (Insolvency) No. 480 of 2020 before NCLAT that stands transferred to this Court and is registered as T.C. (C) No. 240 of 2020. 10.3. Ashish Mohan Gupta & Anr.: These are the homebuyers who seek to oppose the resolution plan while raising questions over the proceedings of the Committee of Creditors as also on various other grounds, which may be running common to the grounds urged by the homebuyers/associations who are objecting to the plan and its approval. They had filed Company Appeal (AT) (Insolvency) No. 489 of 2020 before NCLAT that stands transferred to this Court and is registered as T.C. (C) No. 242 of 2020. 10.4. Jaypee Orchard Resident Welfare Society: This is another society of homebuyers in the projects of JIL who seeks implementation of the projects of JIL but has its own reservations on the terms of the resolution plan where the requisite compensation in relation to the delayed implementation of the projects by JIL has not been provided in terms of RERA. This society has not filed the appeal before NCLAT but in view of other appeals having been withdrawn to this Court, has preferred the petition for special leave to appeal, being SLP Diary No. 18129 of 2020 in this Court, seeking to challenge the said order dated 03.03.2020. 10.5. Ishwar Kewalramani and 76 Others: These are the applicants of another impleadment application being I.A. No. 88795 of 2020 in Civil Appeal No. 3395 of 2020; they are homebuyers of the projects undertaken by JIL and are aggrieved by the order dated 03.03.2020 insofar as NCLT has failed to specify the use of 758 acres of unencumbered land now available with JIL; and another grievance is that NBCC has violated the statutory provisions by not providing compensation to the homebuyers due to delayed possession. 10.6. Ashok Chandra: G He is another homebuyer who has moved I.A. No. 84309 of 2020 in Civil Appeal No. 3395 of 2020 and seeks direction to determine adequate and fair amount of compensation to be paid to the homebuyers due to the unreasonable delay in completion. He has also suggested that H

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A different mechanism is required to be provided for dealing with the CIRP in question, in displacement of the resolution plan of NBCC.

11Copy pinpoint11. Other objectors to the resolution plan and the order of NCLT dated 03.03.2020 could be broadly sub-divided into three: one being the holding company of the corporate debtor JIL and the persons/entities B related with these companies; second being the dissenting institutional financial creditor of the corporate debtor JIL; and third being the other stakeholders.

12Copy pinpoint12. In the first sub-sect of objectors, the main parties before us are as follows: C 12.1. Jaiprakash Associates Limited (JAL): It is the holding company of the corporate debtor JIL; it had approximately 71.64% equity shareholding in JIL as on 31.03.2017. This company had deposited the sum of INR 750 crores as per the orders passed by this Court in the case of Chitra Sharma (supra). Apart from D a few other objections, this company JAL is seeking refund of INR 750 crores with accrued interest; and it is contended that the said amount is not the property of the corporate debtor JIL and it cannot be utilised for the CIRP of JIL. This holding company had filed Company Appeal (AT) (Insolvency) No. 478 of 2020 before NCLAT against the said order dated 03.03.2020 that stands transferred to this Court and is registered as T.C. (C) No. 238 of 2020. 12.2. Pankaj Sharma and 3 others: They are homebuyers of the projects being developed by JAL and are similarly contending that the said sum of INR 750 crores with accrued interest cannot be utilised for the CIRP of the corporate debtor JIL. They too had filed an appeal before NCLAT against the said order dated 03.03.2020, being Company Appeal (AT) (Insolvency) No. 544 of 2020 that stands transferred to this Court and is registered as T.C. (C) No. 237 of 2020. G 12.3. Knights Court Social Welfare Association: This is an association representing the homebuyers in the ‘Knights Court’ project of JAL who are aggrieved by the fact that the project has been left incomplete by JAL and who are equally aggrieved by the provision made in the resolution plan of JIL for utilisation of the said H

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amount of INR 750 crores. This association has directly challenged the A said order of NCLT dated 03.03.2020 in this Court by way of Special Leave Petition (Civil) No. 10543 of 2020. 12.4. Manoj Gaur, suspended MD of corporate debtor JIL: He is the suspended Managing Director of the corporate debtor JIL and has also stated himself to be the Executive Chairman of JAL. B He has been arrayed as third respondent in the appeal filed by IRP. It is also noticed that he, along with the holding company JAL, filed an impleadment application (I.A. No. 1508 of 2020) in the appeal filed by NBCC that was allowed by NCLAT on 15.07.2020 and that is how he became the seventh respondent in the appeal of NBCC. According to his submissions, the IRP failed to ensure that the resolution plan did not contravene the law for the time being in force; and that approval by CoC leaves much to be desired. Several of the stipulations and prescriptions in the resolution plan of NBCC are put to question by him.

13Copy pinpoint13. The second sub-sect of objectors to the resolution plan consists of the institutional financial creditor of the corporate debtor JIL, being ICICI Bank Limited. 13.1. The directions issued by NCLT in modification of the resolution plan in regard to the claim of this bank for payment, in its capacity as the dissenting financial creditor of JIL, is one of the major grounds of challenge by the persons/entities standing in favour of the resolution plan in question. This bank has also objected to the clauses in the resolution plan in regard to the treatment of the said sum of INR 750 crores. In its another capacity as the lender of JAL and having mortgage over the land of JIL in security of such lending to JAL, this bank has levied another challenge to the resolution plan in regard to the release of its security interest. This bank had challenged the said order dated 03.03.2020 before NCLAT in Company Appeal (AT) (Insolvency) Diary No. 21936 of 2020 and has moved Transfer Petition (C) Diary No. 20274 of 2020 in this Court, seeking transfer of its appeal before NCLAT for analogous hearing with the present batch of matters. G

14Copy pinpoint14. The third sub-sect of the objectors to the resolution plan comprises of different entities/persons, mostly carrying their own claims/ grievances. They are as follows: 14.1. Yamuna Expressway Industrial Development Authority: H

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A This Authority, constituted under Section 3 of the Uttar Pradesh Industrial Area Development Act, 1976 27 was initially called Taj Expressway Industrial Development Authority28; subsequently it was renamed as Yamuna Expressway Industrial Development Authority29 by a notification dated 11.07.2018. It had been the land provider for execution of various projects by JAL/JIL under the Concession B Agreement. The provisions in the resolution plan for dealing with the available parcels of land and for meeting with the contingent liability (as regards payment of additional compensation towards acquisition of land) are the main areas of concern of this Authority, who had filed its objections to the resolution plan. The directions issued in modification of the resolution plan in regard to YEIDA is also one of the major grounds of challenge by the persons/entities standing in favour of the resolution plan. 14.2. YES Bank Limited: This bank is the financial creditor of a wholly-owned subsidiary of JIL, being Jaypee Healthcare Limited30. This bank asserts that the assets of JHL, said to be mortgaged with it, are not within the purview of CIRP of JIL to be disposed by NBCC; and it seeks modifications in the resolution plan accordingly. This bank filed an appeal before NCLAT against the said order dated 03.03.2020, being Company Appeal (AT) E (Insolvency) No. 488 of 2020 that stands transferred to this Court and is registered as T.C. (C) No. 235 of 2020. 14.3. Rajesh Gupta and 2 others: These three persons, said to have entered into respective agreements with the corporate debtor, carry their own grievance against the prescription in the resolution plan where the resolution applicant has reserved its right to cancel such agreements/sub-lease deeds. They seek direction for entering into sale deed/s of plot/s in Jaypee Greens Wish Town or for refund. They had also filed an appeal before NCLAT against the said order dated 03.03.2020, being Company Appeal (AT) (Insolvency) G No. 547 of 2020 that stands transferred to this Court and is registered as T.C. (C) No. 241 of 2020.

27 Hereinafter also referred to as the ‘U.P. Act of 1976’. 28 ‘TEA’ for short. 29 ‘YEIDA’ for short. 30 H ‘JHL’ for short.

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14.4. Raman Prakash Mangala and 29 others: A They are minority shareholders of JIL and their assertion is that the resolution plan approved by CoC ought to consider the interests of minority shareholders by giving fair market value of the equity shares held by them. Their appeal against the order dated 03.03.2020 before NCLAT, being Company Appeal (AT) (Insolvency) No. 630 of 2020, B also stands transferred to this Court and is registered as T.C. (C) No. 239 of 2020. 14.5. Gyanendra Kumar Raveendra: He is also a minority shareholder of JIL and has moved an application for impleadment in Civil Appeal No. 3395 of 2020, being I.A. C No. 89429 of 2020. He is similarly aggrieved by the action of NBCC to extinguish the right of the minority shareholders without giving them a ‘fair value’ of their shares. Points for determination D

15Copy pinpoint15. Having drawn a brief sketch and outline of the matter and having introduced the principal parties to this litigation with their respective interests, we may now indicate the major points, which arise for determination in view of diverse propositions advanced before us, coupled with the stipulations in the resolution plan in question and the modifications ordered by NCLT and NCLAT by way of the orders impugned. The E principal points calling for determination in this batch are: A. What is the extent of, and limitations over, the powers and jurisdiction of the Adjudicating Authority while dealing with the resolution plan approved by the Committee of Creditors? F B. As to whether approval of the resolution plan of NBCC is vitiated because of simultaneous voting over two resolution plans in the Committee of Creditors? C. (i) As to whether the Adjudicating Authority has erred in not approving the stipulations in the resolution plan for meeting with the contingent liability of additional amount of land acquisition compensation; and has also erred in modifying these stipulations? (ii) As to whether the Adjudicating Authority has erred in not approving the mechanism provided in the resolution plan for transfer, of the concessionaire’s rights and obligations under the H

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A Concession Agreement with YEIDA, to the SPVs proposed to be incorporated; and has also erred in modifying the relevant stipulations? (iii) As to whether the Adjudicating Authority has erred in not approving the reliefs and concessions sought for in the resolution B plan in relation to YEIDA? D. As to whether the Adjudicating Authority has erred in not approving the treatment of dissenting financial creditor like ICICI Bank Limited in the resolution plan, as being not in accord with Section 30(2)(b) of the Code read with Regulation 38(1)(b) of the C CIRP Regulations; and has erred in modifying the terms of resolution plan and in directing payment to the dissenting financial creditor in monetary terms? E. As to whether the Adjudicating Authority has erred in modifying the step provided in the resolution plan in regard to the fixed deposit holders and in directing the resolution applicant to make provision towards the dues of unclaimed fixed deposit holders also? F. (i) As to whether the resolution plan unauthorisedly purports to deal with the assets of Jaypee Healthcare Limited? (ii) As to whether the Adjudicating Authority has erred in assuming that YES Bank Limited had agreed for constitution of a committee to take forward the disinvestment process of Jaypee Healthcare Limited? G. As to whether the stipulation in the resolution plan for cancellation of certain agreements/sub-leases is unfair and the F Adjudicating Authority has erred in not modifying the same? H. As to whether the minority shareholders are entitled to state their claims/objections despite having not approached the Adjudicating Authority; and as to whether the resolution plan does not provide fair treatment to the minority shareholders? G I. (i) As to whether, after approval of the resolution plan of NBCC by the Committee of Creditors, where homebuyers as a class assented to the plan, any individual homebuyer or any association of homebuyers could maintain a challenge to the resolution plan and could be treated as a dissenting financial creditor or an aggrieved person?

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(ii) As to whether the stipulations in the resolution plan stand in violation of the provisions of the Real Estate (Regulation and Development) Act, 2016? (iii) As to whether the resolution plan is violative of the requirements of CIRP Regulations? (iv) As to whether any housing project which has been completed or is nearing completion ought to be kept out of the purview of the resolution plan? J. (i) As to whether the amount of INR 750 crores, which was deposited by JAL pursuant to the orders passed by this Court in the case of Chitra Sharma, and accrued interest thereupon, is the property of JAL and stipulation in the resolution plan concerning its usage by JIL or NBCC is impermissible? (ii) As to whether any amount is receivable by JIL and/or its homebuyers from JAL; and the accounts between JAL and JIL need reconciliation? D K. (i) As to whether Clause 23 of Schedule 3 of the resolution plan providing for extinguishment of security interest of lenders of JAL could not have been approved by the Adjudicating Authority? E (ii) As to whether adequate provision is required to be made in the resolution plan as regards utilisation of the land bank of 758 acres, that has become available to JIL in terms of the judgment dated 26.02.2020 by this Court? L. What should be the appropriate orders on the other issues F raised by the resolution applicant seeking clarification/directions? M. As to whether the Appellate Authority was justified in providing for an Interim Monitoring Committee for implementation of the resolution plan in question during the pendency of appeals? N. What should be the final order and relief? G Relevant factual and background aspects

16Copy pinpoint16. For determination of the points so arising, we need to examine the relevant provisions contained in IBC and CIRP Regulations and apply the same to the process related with consideration and approval of the H

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A resolution plan in question; and to the terms, prescriptions and stipulations of the impugned resolution plan as also to the modifications, as ordered (or as declined) by the Adjudicating Authority (NCLT) in the impugned order dated 03.03.2020. However, in the given set of facts and circumstances, before examining the relevant provisions and before dilating on the relevant features of the resolution plan and the order B impugned, it is expedient to take note of the crucial background aspects relating to the present CIRP and key attributes of the orders passed by this Court in previous rounds of litigation concerning this very CIRP.

17Copy pinpoint17. For a clearer picture of the subject matter of this litigation, a few glimpses of the relevant history shall be apposite. C 17.1. By way of a notification dated 24.04.2001, the Government of Uttar Pradesh, in exercise of its powers under Section 3 of the U.P. Act of 1976, proceeded to set up Taj Expressway Industrial Development Authority (‘TEA’) for anchoring development of Taj Expressway Project, being that of a six-lane 160 km long Super Expressway with service D roads and associated facilities connecting Noida and Agra, passing through a so-called virgin area along the river Yamuna. 17.2. At the initial stages, the said Taj Expressway Industrial Development Authority invited bids for selecting the entity for execution of the project. In this process, ultimately, the company known as E Jaiprakash Industries Limited came out as the successful bidder. This company, Jaiprakash Industries Limited, is now named as Jaiprakash Associates Limited (‘JAL’). 17.3. After the said bidding process, a Concession Agreement dated 07.02.2003 was executed between the principal TEA and the successful bidder Jaiprakash Industries Limited, who came to be referred to as the “concessionaire”. Various terms and stipulations of this Concession Agreement form the subject matter of one segment of dispute in the present litigation, as discussed at the relevant stages hereafter. At the present stage, worthwhile it is to notice that under this CA, the concessionaire was to be provided land for constructing Expressway and its allied facilities; and was also to be provided other land for development. In this regard, the concessionaire was given lease of Expressway land with a right to collect toll from the users of the road for 36 years; and the land adjacent to the road was provided to the concessionaire for commercial exploitation on a lease for 90 years. As H regards premium for the land being so transferred, the stipulations in the

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CA had been to the effect that such premium shall be equivalent to acquisition cost plus a lease rent of INR 100 per hectare per year. In Clause 18.1 of CA, it was also agreed to between the parties that in case the concessionaire and TEA would consider it necessary to transfer the rights and obligations of concessionaire to a special purpose vehicle (‘SPV’), the concessionaire would do so in a reasonable time for which, documents as may be required shall be executed amongst the concessionaire, the TEA and the SPV. For accomplishment of the project, the Government of Uttar Pradesh proceeded to acquire land for laying of the Expressway; and also proceeded to acquire additional land along the road for development of the same for commercial, amusement, industrial, institutional and residential purposes. C 17.4. Coming on the heels of this project and in terms of the said Clause 18.1 of CA, the corporate debtor Jaypee Infratech Limited (‘JIL’) was set up as a special purpose vehicle by the concessionaire and thereafter, the rights and obligations under CA were transferred to JIL by way of an assignment agreement dated 19.10.2007 and deed of D agreement dated 27.11.2007. In this manner, the corporate debtor JIL came to be accepted as the concessionaire. Later on, by way of a notification dated 11.07.2008, Taj Expressway Industrial Development Authority was renamed as Yamuna Expressway Industrial Development Authority (‘YEIDA’). The net result of the dealings aforesaid has been that the rights and obligations under the said Concession Agreement E dated 07.02.2003 now relate to the corporate debtor JIL as the concessionaire and YEIDA as the land providing agency. 17.5. As noticed, the corporate debtor JIL was set up as the SPV by the original concessionaire JAL; and JAL had approximately 71.64% equity shareholding in JIL as on 31.03.2017. Admittedly, JAL had been the holding company of JIL. When JIL was set up as an SPV for the purpose of execution of the project/s under the said CA, finances were obtained from a consortium of banks against the partial mortgage of land acquired and a pledge of 51% of the shareholding held by JAL. Accordingly, JIL took up those two projects; the Expressway was laid and JIL also started developing real estate projects in two locations of the land acquired, one in Wish Town, Noida and another in Mirzapur. 17.6. However, JIL defaulted in several of its obligations, including those in completion of the real estate projects as proposed and in payment of dues of the lender financial institutions. H

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18Copy pinpoint18. The default on the part of JIL in payment of its dues led the lender bank, IDBI Bank Limited, instituting a petition under Section 7 of the Code before the NCLT, for initiation of the corporate insolvency resolution process against JIL. The applicant bank alleged that JIL had committed a default in repayment of its dues to the tune of INR 526.11 crores. JIL filed its objections to the petition but later on, withdrew the objections and furnished its consent for resolution plan under the provisions of the Code. 18.1. In view of the above, on 09.08.2017, NCLT initiated the CIRP in respect of JIL. An order of moratorium was issued under Section 14 of the Code by which, the institution of suits and continuation of pending proceedings, including execution proceedings, were prohibited and an Interim Resolution Professional was appointed. On 14.08.2017, IRP, in pursuance of the order of NCLT, called for submissions of claims by financial creditors in Form-C, by operational creditors in Form-B, by the workmen and employees in Form-E and by other creditors in Form-F. D On 16.08.2017, the Insolvency and Bankruptcy Board of India31 made an amendment to its Regulations whereby, Regulation 9(a) was inserted to include the claims by other creditors; and then, on 18.08.2017, the Board released a press note that the homebuyers could fill in Form-F, as they could not be treated at par with financial and operational creditors.

19Copy pinpoint19. The aforesaid position led to several petitions in this Court, particularly by the aggrieved homebuyers. As noticed, those petitions were dealt with by this Court as a batch, led by the case of Chitra Sharma (supra). Several orders were passed by this Court in the said batch of petitions from time to time, inter alia, to the effect that IRP was permitted to take over the management of JIL and was directed to ensure that necessary provisions were made to protect the interests of homebuyers. Various orders were also made with directions to JAL, as holding company of JIL, for making deposits in the Court, particularly looking to the claim of refund being made by some of the homebuyers. While finally disposing of the matters, this Court took note of the interests of homebuyers as also the creditors of JAL and JIL; and also took note of the status of proceedings and the statutory provisions as then obtaining, including the fact that the statutory period of 180 days, and even the extended period of 90 days, for concluding the CIRP had come to an end but then, by way of the Insolvency and Bankruptcy (Amendment) 31 H Hereinafter also referred to as ‘the Board’.

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Ordinance, 2018, which came into force on 06.06.2018, the doubts about A the status of homebuyers were removed and they were expressly recognised as financial creditors of the corporate debtor. In the given set of facts and circumstances, this Court provided a reprieve to the CIRP in question while making further orders in the interests of homebuyers and other creditors. B 19.1. The proceedings and the orders passed by this Court in the said case of Chitra Sharma are of material bearing in the present case and, therefore, may be usefully recounted in necessary details. Orders and directions in the case of Chitra Sharma

20Copy pinpoint20. As noticed, this Court was moved in the case of Chitra Sharma C (supra) essentially for the reason that a large number of homebuyers, who had invested in the real estate projects proposed by JAL and JIL, were feeling distressed in the wake of the proposed CIRP concerning JIL and who were likely to be left in the lurch because, at the given stage, while IBC recognised three categories of stakeholders namely, (i) D corporate debtors; (ii) financial creditors; and (iii) operational creditors but, the homebuyers, otherwise having a direct and substantial interest in CIRP with investment of lifetime, were being treated only as ‘other creditors’. In the given scenario, on being moved, this Court issued notice on 04.09.2017 in the said batch of petitions; the proceedings before the NCLT at Allahabad were stayed until further orders; a copy of the E proceedings was ordered to be served on the office of the learned Attorney General for India; and the applications for impleadment and intervention were allowed. 20.1. Thereafter, on 11.09.2017, while dealing with an application moved by IDBI Bank Limited for vacation of the ad-interim order dated F 04.09.2017, several facets of the matter and ramifications of the stay order passed by this Court were projected with reference to the scheme of the provisions contained in the Code. On the other hand, it was argued on behalf of the homebuyers that they were of lower and middle income groups, who had invested their life savings with JIL and JAL and their G interests were required to be protected. It was argued that if CIRP was restored, there should be a representative from the homebuyers or the Court may appoint someone on CoC to espouse the interests of the homebuyers.

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A 20.1.1. Taking note of the submissions so made and in order to safeguard the interests of stakeholders, this Court modified the earlier order dated 04.09.2017 and issued material directions, inter alia, to the effect that: (i) IRP shall take over the management of JIL and formulate interim resolution plan with necessary provision to protect the interests of homebuyers; (ii) Mr. Shekhar Naphade, learned senior counsel along with Ms. Shubhangi Tuli, AOR shall participate in the meetings of CoC to espouse the cause of the homebuyers and to protect their interests; the Director or Managing Director of JIL or JAL on the date of institution of insolvency proceedings as also on the date of order, except the nominee Directors of lending institutions, shall not leave the country without prior permission of the Court; and all the suits and proceedings against JIL shall remain stayed in terms of Section 14(1)(a) of the Code. In addition, this Court also directed JAL to deposit a sum of INR 2,000 crores and provided that if any assets or property of JAL had to be sold for the purpose, that should be done after obtaining prior approval of this Court. For its relevance, the aforesaid order dated 11.09.2017, carrying significant observations and material directions of this Court, which are of bearing on a substantial part of the present litigation, could be extracted, in extenso, as under: - “All the applications for intervention/impleadment are allowed. E IA No. 87575 of 2017 in SLPs (C) Nos. 24001- 24002 of 2017 (D. Nos. 27277, 27579 and 27624 of 2017) The present interlocutory application has been filed by the IDBI Bank Ltd. in the special leave petitions which have been F registered as SLPs (C) Nos. 24001 and 24002 of 2017. This is an application for vacating/modification of the order dated 4-9-2017. On that day, this Court while issuing notice, had passed the following order: “2. …..In the meantime the impugned order(s) passed by the G National Company Law Tribunal, Allahabad shall remain stayed until further orders. A copy of the special leave petition be served on the office of learned Attorney General for India. All applications for impleadment/intervention stand allowed.” Mr K.K. Venugopal, learned Attorney General for India H appearing for Respondents 1 and 2 submitted that the order passed

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by this Court on 4-9-2017 needs to be vacated or modified because A the consequence of the stay would be that the Management of Respondent 3, Jaypee Infratech Ltd. would stand restored. This was not a consequence intended by this Court. It is urged by him that if the erstwhile Management of the said company continues, it will affect the rights of the creditors and the consumers as well. B In the course of the hearing, we have been informed that after the order of stay was passed by this Court, the Interim Resolution Professional (IRP) has handed over records to Respondent 3, Jaypee Infratech Ltd. (“JIL”). It is submitted by Mr K.K. Venugopal, learned Attorney General that some time should be granted to the IRP to formulate at least a preliminary scheme so that the interest of all stakeholders is protected. He has also shown his concern for the interest of the homebuyers. Dr Abhishek Manu Singhvi, learned Senior Counsel appearing for IDBI Bank Ltd., (Respondent 6 in the writ petition) submits that under the statutory scheme, the IRP has to take over otherwise the letter and spirit of the Act is likely to be affected. The learned counsel appearing for the homebuyers, in contra, submits that they belong to the lower and middle income group and have invested life savings with JIL and with its holding company, Jai Prakash Associates Ltd. (“JAL”). It has been assiduously urged that the investments of flat purchasers are with JIL and JAL and, therefore, the interest of the purchasers may be protected. It is also argued that if the IRP is restored, there should be a representative from the homebuyers or this Court may appoint someone on this Committee of Creditors and espouse the interests of the homebuyers. Having heard the learned counsel for the parties at length, in modification of the order dated 4-9-2017, we issue the following directions: a) The IRP shall forthwith take over the Management of JIL. G The IRP shall formulate and submit an interim resolution plan within 45 days before this Court. The interim resolution plan shall make all necessary provisions to protect the interests of the homebuyers; H

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A b) Mr Shekhar Naphade, learned Senior Counsel along with Ms Shubhangi Tuli, Advocate-on-Record, shall participate in the meetings of the Committee of Creditors under Section 21 of the Insolvency and Bankruptcy Code, 2016 to espouse the cause of the homebuyers and protect their interests; B c) The Managing Director and the Directors of JIL and JAL shall not leave India without the prior permission of this Court; d) JAL which is not a party to the insolvency proceedings, shall deposit a sum of Rs 2000 crores (Rupees two thousand crores) before this Court on or before 27-10-2017. For the said purpose, if any assets or property of JAL have to be sold, that should be done after obtaining prior approval of this Court. Any person who was a Director or Managing Director of JIL or JAL on the date of the institution of the insolvency proceedings against JIL as well as the present Directors/Managing Director shall also not leave the country without prior permission of this Court. The foregoing restraint shall not apply to nominee Directors of lending institutions (IDBI/ICICI/SBI); e) All suits and proceeding instituted against JIL shall in terms of Section 14(1)(a) remain stayed as we have directed the IRP to remain in Management. Be it clarified that we have passed this order keeping in view the provisions of the Act and also the interest of the homebuyers.

F IA stands disposed of accordingly. The matter be listed at 2.00 p.m. on 13-11-2017. The prior date given by this Court i.e. 10-10-2017 stands cancelled.” (emphasis in bold supplied) G 20.1.2. It could be readily noticed that in formulating the directions aforesaid, this Court initiated steps to protect the interests of homebuyers essentially for the reason that, at the given stage, homebuyers were not regarded as financial creditors and they were not represented in the CoC. Significantly, while evolving a workable and protective mechanism, H

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this Court also took note of the crucial background aspects and the fact that JIL was essentially an alter ego of JAL; and thus, even while consciously noting that JAL was not a party to the insolvency proceedings, directed that JAL shall deposit a sum of INR 2,000 crores and restraints were also put over disposal of assets or property of JAL and over the movement of the Directors/Managing Directors of JIL or JAL away from the country. 20.2. JAL moved an application (I.A. No. 102471 of 2017) for modification/recall of the aforesaid direction for deposit of INR 2,000 crores or for a modification that would enable it to transfer the rights under the Concession Agreement in respect of the Yamuna Expressway. This application was considered and rejected by the Court on 25.10.2017 C after noticing the submissions in opposition by the learned Attorney General as also by the learned counsel appearing on behalf of IDBI Bank and YEIDA. It was also submitted by the counsel for IRP that the rights under the Concession Agreement belonged to JIL, which was subject to proceedings under the IBC and therefore, such a request could not be granted. However, the time for depositing INR 2,000 crores was extended until 05.11.2017. The relevant part of order dated 25.10.2017 reads as under: - “It is submitted by Mr Kapil Sibal and Mr Mukul Rohatgi, learned Senior Counsel appearing for the applicant that JAL may be permitted to transfer its rights under the concession agreement in respect of Yamuna Expressway. The same is seriously opposed by Mr K.K. Venugopal, learned Attorney General for India, Dr Abhishek Manu Singhvi, learned Senior Counsel appearing for the IDBI Ltd. and Mr Ravindra Kumar, learned counsel appearing for the Yamuna Expressway Industrial Development Authority. F

It is also submitted by Mr Parag P. Tripathi, learned Senior Counsel representing the Interim Resolution Professional (IRP) that the rights under the concession agreement in respect of Yamuna Expressway are of Jaypee Infratech Ltd. (JIL), which is subject to proceeding under the Insolvency and Bankruptcy Code G and, therefore, it cannot be transferred. Mr Ravinder Kumar, learned counsel appearing for the Authority has submitted that the rights under the concession agreement, are non-transferable. We have also heard Mr Ajit Kumar Sinha, learned Senior Counsel appearing for some of the homebuyers. There are other H

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A counsel who are representing the homebuyers who are interested in having their flats. We do not want to address the said aspect today. We are not inclined to entertain the application for modification of the order dated 11-9-2017. However, we extend B the time to deposit the sum of Rs 2000 crores (Rupees two thousand crores) till 5-11-2017.” 20.3. Then, on 13.11.2017, this Court appointed learned counsel Mr. Pawanshree Agarwal as the amicus curiae, who was to open a web portal on which details of homebuyers could be uploaded. All the C Directors of JAL, except institutional Directors were ordered to remain present before the Court on the next date with the affidavits disclosing their personal assets. This order dated 13.11.2017 reads as under: - “All the applications for impleadment/intervention stand allowed. The homebuyers are directed to approach D Mr Pawanshree Agarwal, learned counsel, who is appointed as the Amicus Curiae in the matter to assist the Court and he shall open a web portal so that the homebuyers can give their details to Mr Pawanshree Agarwal. Let the matter be listed on 22-11-2017. On that day, all the Directors except institutional Directors of Jaiprakash Associates Ltd. (JAL) shall remain personally present in the Court with the affidavits disclosing their personal assets.” 20.4. On the next date, 22.11.2017, eight independent Directors and five promoter Directors were present before the Court. On a statement made on behalf of JAL, this Court permitted JAL to deposit INR 275 crores during the course of the day and directed further deposit, of INR 150 crores by 13.12.2017 and INR 125 crores by 31.12.2017. A restraint was imposed on the alienation of properties and assets of the Directors and their families while maintaining the earlier direction for the deposit of INR 2,000 crores; and the Directors concerned were directed to remain present on the next date. The amicus curiae was asked to create a web portal within a week; and for that matter, learned counsel appearing for JAL was to provide all the details as required by the amicus and also to provide him a sum of INR 5 lakhs. The relevant part of order dated 22.11.2017 reads as under: - “It is submitted by learned Senior Counsel appearing for Jaiprakash Associates Ltd. (JAL) that the company is ready with H

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Rs 275 crores. The homebuyers raised their concern about the realisation of the amount. This Court appreciates the grievance and the concern of the homebuyers. We think it would be appropriate to direct as follows: (a) A demand draft of Rs 275 crores be deposited by Mr Anupam Lal Das, learned counsel appearing for the company, before the Registry of this Court, today. (b) A sum of Rs 150 crores be deposited by 13-12-2017. (c) A further sum of Rs 125 crores be deposited by 31-12-

2017. C (d) Neither the independent Directors nor the promoter Directors shall alienate their personal properties or assets in any manner, and if they do so, they will not only be liable for criminal prosecution but contempt of the court. (e) That apart, we also direct that the properties and assets of D their immediate and dependent family members should also not be transferred in any manner, whatsoever. Needless to say that direction for deposit of Rs 2000 crores shall remain as it is. The only indulgence is to pay the same in instalments. E Mr Pawanshree Agrawal, who had been appointed as Amicus Curiae on an earlier date, shall create a portal within a week and do the needful as he has done in similar matters. Mr Anupam Lal Das, learned counsel shall provide all the details as required by Mr Pawanshree Agrawal. Mr Anupam Lal Das shall provide a F sum of Rs 5 lakhs to Mr Pawanshree Agrawal for creation of the portal and to carry on the consequential activities. Matters be listed on 10-1-2018. On that day, all the independent Directors and promoter Directors of Jaiprakash Associates Limited, shall remain present. Copies of the affidavits deposed by all the five promoter Directors, shall be served on the Central Agency, so G that the learned Attorney General can be made aware of that. Call on the date fixed.” 20.5. Next to the above, the matter was considered on 15.12.2017, when the deposited INR 150 crores were ordered to be kept in a short- H

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A term deposit and the time (for further payment) was extended until 25.01.2018. Further to that, on 10.01.2018, this Court took note of the submissions made on behalf of the homebuyers of JAL as also an application made by Reserve Bank of India32 seeking leave to move the NCLT against JAL and issued the directions, inter alia, to the effect that JAL shall file an affidavit disclosing its housing projects throughout B the country and the stage of their construction; the amicus shall open an independent web portal for the homebuyers of JAL; the application of RBI shall be considered at a later stage; and the Directors concerned need not remain personally present before the Court unless so directed but shall not leave the country. The relevant part of this order dated C 10.01.2018 reads as under: - “Having heard the learned counsel for the parties, we are inclined to pass the following directions: (i) Jaiprakash Associates Ltd. (JAL) shall file an affidavit stating therein as to how many housing projects it has throughout the D country and the stage of their construction. The said affidavit shall be filed within a week hence. (ii) Mr Pawanshree Agarwal, learned Amicus Curiae shall create an independent web portal in respect of the homebuyers of JAL, which shall reflect the details of the homebuyers. E (iii) The web portal created by Mr Pawanshree Agarwal qua Jaypee Infratech Ltd. (JIL) shall be kept alive. (iv) The application filed by Reserve Bank of India seeking permission to move NCLT shall be considered at a later stage. F (v) The independent Directors of JAL need not remain personally present on every date of hearing unless so directed by this Court. The independent Directors shall not leave the country without leave of this Court. (vi) The earlier order of injuncting JAL to create any kind of G third-party interest in the assets is reiterated. (vii) The applications for impleadment/intervention and directions filed before this Court shall be served on Mr Pawanshree Agarwal.” 32 ‘RBI’ for short. H

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20.6. Further effective proceedings took place on 21.03.2018 A when it was stated on behalf of JAL that INR 550 crores had already been deposited and that only about 8% of homebuyers were interested in seeking refund while others were desirous of seeking possession of their flats. This Court indicated that at the given stage, only the matter in relation to the homebuyers seeking refund was being examined and other grievances shall be examined in the next phase of proceedings. Since the order for deposit of INR 2,000 crores had not been complied with despite the end of deadline, the Court issued directions for further deposit of INR 200 crores, as agreed to by the Managing Director of JAL present in the Court, where the first instalment of INR 100 crores was to be deposited by 15.04.2018 and the second instalment in the like amount was to be deposited by 10.05.2018. The amicus curiae informed the Court, with reference to his portal and the record of JAL, that a sum of INR 1,300 crores was required to be refunded by way of principal alone to the homebuyers who were seeking refunds, whereupon the amicus was requested to submit a project-wise chart, indicating the number of persons and the stage of completion. Taking note of the grievances of the homebuyers that the developer was demanding monthly instalments despite being unable to complete construction, the developer was restrained from raising demands towards outstanding or future instalments in respect of those buyers who had expressed a desire to obtain refunds. Further to that, the IRP was permitted to finalise the resolution plan, to be implemented only with the leave of the Court. This Court also took note of the inability expressed by the learned senior counsel, who was earlier requested to espouse the cause of homebuyers in CoC and, in his place, Mr. Gaurav Agarwal Advocate was appointed for the purpose. This order dated 21.03.2018 reads as under: - F “Heard Mr Anupam Lal Das, learned counsel appearing for Respondent 4 Jaiprakash Associates Ltd. (JAL). Though many a contention has been raised by Mr Das, yet, we are not inclined to entertain the same keeping in view our orders dated 11-9-2017 and 25-10-2017. We have been told by Mr Das that JAL has deposited a sum of Rs 550 crores before the Registry of this G Court. It is submitted by Mr Das that only 8% of the homebuyers/ allottees are inclined to take refund whereas others have expressed their inclination to have the flats.

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