TMI Blog2022 (4) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... s the duty of the Resolution Professional to find out as to whether the Resolution Plan is in compliance of the provisions of the Code or not the Resolution Professional can give his opinion with regard to each plan before the CoC and it is for the CoC to take a decision as to whether the plan is to be approved or not. In para 5 of the impugned order, it is noticed that the direction has been issued to the Resolution Professional to place all the Resolution Plans along with his opinion on the contravention or otherwise of the various provisions of law. The aforesaid direction clearly indicates that the Resolution Professional is free to submit his opinion with regard to contravention or otherwise of the various provisions of law. The afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted by the Appellant before the Committee of Creditors (CoC). The Adjudicating Authority after hearing the parties issued following directions in para 5: 5. When these provisions are read together along with the judgment of the Hon ble Supreme Court cited above, what appears is that the RP is a facilitator and not a gatekeeper. In these circumstances, the ends of justice would be met if we direct the RP to place all Resolution Plans along with his opinion on the contravention or otherwise of the various provisions of law before the CoC which should take a considered view in the matter, if not already done. 2. The Appeal being Company Appeal (AT) (Ins.) No.371 of 2022 has been filed by the Resolution Professional challenging the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and Respondents. 6. Both the parties have placed reliance on the judgment of the Hon ble Supreme Court in Arcelormittal India Private Limited vs. Satish Kumar Gupta- (2019) 2 SCC 1 wherein in Paras 78, 79, 80 81 the Hon ble Supreme Court observed and held as follows: 78. What has now to be determined is whether any challenge can be made at various stages of the corporate insolvency resolution process. Suppose a resolution plan is turned down at the threshold by a Resolution Professional under Section 30(2). At this stage is it open to the concerned resolution applicant to challenge the Resolution Professional s rejection? It is settled law that a statute is designed to be workable, and the interpretation thereof should be des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nedin in Whitney v. Commissioners of Inland Revenue [1925] 10 Tax Cas.88, 110, to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable . 79. Given the timeline referred to above, and given the fact that a resolution applicant has no vested right that his resolution plan be considered, it is clear that no challenge can be preferred to the Adjudicating Authority at this stage. A writ petition under Article 226 filed before a High Court would also be turned down on the ground that no right, much less a fundamental right, is affected at this stage. This is also made clear by the first proviso to Section 30(4), whereby a Resolution Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditors, who may or may not approve it. The fact that the Resolution Professional is also to confirm that a resolution plan does not contravene any of the provisions of law for the time-being in force, including Section 29A of the Code, only means that his prima facie opinion is to be given to the Committee of Creditors that a law has or has not been contravened. Section 30(2)(e) does not empower the Resolution Professional to decide whether the resolution plan does or does not contravene the provisions of law. Regulation 36A of the CIRP Regulations specifically provides as follows:- 36-A. (8) The resolution professional shall conduct due diligence based on the material on record in order to satisfy that the prospective resolution ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Resolution Professional to give reasons while submitting a resolution plan to the Committee of Creditors, it would be in the fitness of things if he appends the due diligence report carried out by him with respect to each of the resolution plans under consideration, and to state briefly as to why it does or does not conform to the law. 82. Take the next stage under Section 30. A Resolution Professional has presented a resolution plan to the Committee of Creditors for its approval, but the Committee of Creditors does not approve such plan after considering its feasibility and viability, as the requisite vote of not less than 66% of the voting share of the financial creditors is not obtained. As has been mentioned hereinabove, the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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