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2022 (4) TMI 261 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHISeeking approval of Resolution Plan - Section 31 of the Code r/w Regulation 39 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - requirements of Section 30(2) of the Code fulfilled or not - whether the Appellant herein was unfairly dealt with regarding the settlement of its Claim, under the subject Resolution Plan? - HELD THAT:- The Appellant had claimed an amount of ₹ 1,24,37,16,022/- as an ‘Operational Creditor’ on the ground that some instalments together with penal interest were due under the Higher Purchase Agreement and also under the head of FAR Charges. Therefore, the belated stand of the Appellant that the property belongs to them and therefore they should be included in the same category as the ‘Claims’ of ‘Financial Creditor’ is untenable - it is also to be noted that the Resolution Plan was approved way back two years ago on 17/03/2020 with a majority of 96.07% votes in the 12th CoC Meeting. The contention of the Learned Counsel for the Appellant is that the Resolution Plan was never communicated to the Appellant herein and that it was sent to the wrong email Id. - HELD THAT:- A brief perusal of the Form B reproduced in para 8 shows that email Id is upavp_emogzb@rediffmail.com. It is also seen from the record that the emails were sent to the Appellant on 26/12/2019, 15/01/2020, 20/01/2020, 22/01/2020, 21/02/2020, 04/03/2020 and 12/03/2020. On 11/08/2020, the Resolution Professional informed the Appellant about the approval of the Resolution Plan vide Order dated 04/08/2020. In a catena of Judgments, the Hon’ble Supreme Court has laid down that the commercial wisdom of the CoC is non-justiciable unless it does not comply with the provisions of Section 30(2) of the Code - reliance can be placed in the case of K Sashidhar Vs. Indian Overseas Bank & Ors. [2019 (2) TMI 1043 - SUPREME COURT] - The Hon’ble Supreme Court in the aforenoted Judgement has observed that commercial decision of the CoC is non-justiciable unless it is in violation of any law for the time being in force. The Adjudicating Authority has a very limited jurisdiction and should only examine whether the Resolution Plan meets the essential requirements as provided for under Section 30(2) of the Code. The Hon’ble Supreme Court in ‘Ghanashyam Mishra and Sons Private Limited’ Vs. ‘Edelweiss Asset Reconstruction Company Limited Through the Director & Ors.’, [2021 (4) TMI 613 - SUPREME COURT], dealing with the issue of commercial wisdom CoC and the jurisdiction of the Tribunal to interfere in the same has observed that In the present case, Subsequent to the RP admitting the ‘Claim’ of ₹ 1,23,07,52,746/-, the said ‘Claim’ was included in the information memorandum and the Successful Resolution Applicant proposed an amount of ₹ 12,30,75,275/- which is 10% of the admitted ‘Claim’ towards satisfaction of the Appellant dues, even though the Liquidation value due to the Appellant under Section 30(2)(b) of the Code was NIL - The Hon’ble Supreme Court has time and again observed that it is the CoC which has to decide the percentage of haircut, the sub classes between ‘Operational Creditors’ and the manner in which the amount is to be distributed. Thus, this Tribunal is of the considered view that there is no illegality or infirmity in the approval of the Resolution Plan by the Adjudicating Authority - appeal dismissed.
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