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2022 (8) TMI 715 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI BENCHPower of RP or CoC to call for final compliant Resolution Plan once the CoC concluded the negotiations on Resolution Plans - only resolution plan submitted by the applicant was deemed to be approved - it is alleged that the RP misconstrued amended Regulation 39(3) issued by IBBI dated 07.08.2020 showing the same as pretext and throwing the blame on CoC - retrospective or prospective effect of amendment - HELD THAT:- it is clear case that the RP intend to invite fresh resolution plans under the guise of final compliant resolution plan is in our view highly misinterpreting the amendment to the regulations and it is act of contemptuous. - Hence, this Tribunal also draws adverse inference against the RP. The amendment does not give the powers to call for fresh resolution plans as intended by the 1st Respondent/RP under the guise of final compliant resolution plan as stated by the Respondent/RP in his e-mail dated 13.08.2020. This Tribunal makes it clear that the amendment to the Regulation 39(3) of the IBBI Regulations, 2016 as referred above is gave the powers to the committee to evaluate resolution plans received as per evaluation matrix i.e. RFRP and deliberate on the feasibility and viability and vote on all such resolution plans simultaneously, does not mean for calling fresh plans. The evaluation matrix has been provided under Regulation 36-B of IBBI Regulations, 2016 and the Regulations in this regard along with the substantial provision of law have to be read harmoniously. The Learned Adjudicating Authority misinterpreted the Regulations 39(3) of the I&B Code, 2016 and not properly understood the judgment of the Hon’ble Supreme Court in JAYPEE KENSINGTON BOULEVARD APARTMENTS WELFARE ASSOCIATION & ORS. VERSUS NBCC (INDIA) LTD. & ORS. [2021 (3) TMI 1143 - SUPREME COURT]. The Hon’ble Supreme Court in the aforesaid judgment held that the said amendment of sub-regulation (3) of Regulation 39 of CIRP Regulations insertion of sub-regulation (3A) and (3B) thereto, could only be visualised as clarificatory in nature and in any case even before amendment there had not been any prohibition in putting two or more confirming Resolution Plans to vote simultaneously - The Hon’ble Supreme Court also clarified the intent of the amendment to the Regulations and the Hon’ble Supreme Court also did not hold that as per the amended regulation a fresh/final compliant resolution plans shall be called beyond the time stipulated under the Code. Further, this Tribunal is of the view that the amendment is only to consider the feasibility, viability of each plan and not to call fresh resolution plans (decided by RP) under the guise of final compliant resolution plan. This Tribunal hold that the order passed by the Adjudicating Authority dated 07.05.2021 is per se illegal and without application of mind and also not in conformity with the provisions of law - this Tribunal comes to a resultant conclusion that the Appellant has made out a prima facie case to be interfered with the order passed by the Adjudicating Authority. Appeal allowed.
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