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2023 (2) TMI 441 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHIRemission of Resolution Plan back to the CoC for reconsideration, at the request of Financial Creditors - appellant contends that Resolution Plan having been approved by the Adjudicating Authority, there is no jurisdiction in the Adjudicating Authority to send back the Resolution Plan for reconsideration at the request of Financial Creditor - whether the approved Resolution Plan is binding on the CoC which can neither be withdrawn nor sent back for modification? - HELD THAT:- The Judgement of the Hon’ble Supreme Court in EBIX SINGAPORE PRIVATE LIMITED VERSUS COMMITTEE OF CREDITORS OF EDUCOMP SOLUTIONS LIMITED & ANR., KUNDAN CARE PRODUCTS LIMITED VERSUS MR AMIT GUPTA AND ORS. AND SEROCO LIGHTING INDUSTRIES PRIVATE LIMITED VERSUS RAVI KAPOOR RP FOR ARYA FILAMENTS PRIVATE LIMTIED & ORS. [2021 (9) TMI 672 - SUPREME COURT] categorically lays down that Resolution Plan approved by CoC is binding between the Successful Resolution Applicant and the CoC. The law is thus well settled that Resolution Plan is approved by the CoC is binding between the CoC and SRA. The question to be considered in this Appeal is as to whether, there are any circumstances and conditions, where Resolution Plan can be sent back for carrying out any changes - In this context, the Judgement of the Hon’ble Supreme Court in COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT] is referred. The Hon’ble Supreme Court in the above judgement had occasion to consider the scope of judicial review of the Adjudicating Authority in the context of Resolution Plan approved by the CoC. It was held by the Supreme Court that The reasons given by the Committee of Creditors while approving a resolution plan may thus be looked at by the Adjudicating Authority only from this point of view, and once it is satisfied that the Committee of Creditors has paid attention to these key features, it must then pass the resolution plan, other things being equal. Thus, in view of the Judgment of the Hon’ble Supreme Court laid down above, the Adjudicating Authority if finds on given set of facts that parameters under Section 30(2)(e) have not been kept in view, the Resolution Plan can be sent back to the CoC to review such plan after satisfying the parameters. The above is the only situation provided by Hon’ble Supreme Court where the plan can be sent back. The present is a case where Application was filed by the Financial Creditors where they prayed to delete the clause in the Resolution Plan which provided for release of the personal guarantee of the promoters. The submissions which were pressed before us by Learned Counsel for the Financial Creditors that said clause which violates the provision of Section 128 of Contract Act, has to be treated to be violation of Section 30(2)(e) of the Code - The present is a case where CoC is not asking to withdraw from the Plan or asking for reviewing the entire Resolution Plan rather CoC has asked for leave of the Court for deleting clause in the plan which sought to release the promoters from personal guarantee given to the Financial Creditors. Thus, no grounds have been made out to interfere with the Impugned Order. However, the CoC as per the Order dated 30th March, 2022 may expeditiously taka a decision and Resolution Professional may submit the modified Resolution Plan if any before the Adjudicating Authority - appeal disposed off.
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