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2021 (3) TMI 1366 - Tri - Insolvency and BankruptcySeeking approval of the resolution plan of Adjudicating Authority - Section 31 of the IBC - HELD THAT:- With regard to the objection raised by the operational Debtor, this Adjudicating Authority has observed that the plan has dealt with the interest of the stakeholders as per Section 53 of IBC, 2016. The amount available to the Operational Creditor as per Section 53 of the Code, is considered as nil in view of large due to Secured Financial Creditors. Inspite of that, some amount is provided for operational creditors, workman and employees. It is proposed in the plan that the residual amount due to the Operational Creditors and employee, if any, (After allocation of Resolution Plan fund to Financial Creditor) shall be given priority in payment over Financial Creditors and the amount proposed for Operational Creditor and employees is as per Financial Plan and if there is shortfall in amount available to operational Creditor as per the Resolution Plan when compared to what is available to the Operational Creditor considering the liquidation value, in that case shortfall amount will be paid to them by reducing amount available to the Financial Creditor. In the case in hand, this Adjudicating Authority is of the view that as the amount available to the Operational Creditor as per Section 53 of the Code, is considered as nil but Resolution Plan provided for payment @ 18.84% of claim admitted amount of the operational creditors which is more than the liquidation value and all the operational creditors has been treated equally thus the prayer of the operational creditor to modify the Resolution Plan to the extent of claim of RPPL is not sustainable. Thus it is a well settled proposition of law that the commercial wisdom of COC are not open to judicial review thus the Adjudicating Authority cannot enquire into it. It is however reiterated that the Resolution plan in question meets the requirement specified in Sec 30(2) of the Code and the reasoned commercial decision of COC is neither discriminatory nor perverse - this bench is satisfied that the requirements as per the Code and regulations have been complied with. Moreover, the Resolution Plan has been approved by 100% voting share of the members of COC and has been submitted in compliance of Sec 30 of the Code for approval. In view of the discussions and as no infirmity have been brought out upon screening of the Resolution plan, this Adjudicating Authority hereby approve the Resolution plan under sub- section (1) of Section 31 of the Code. The Resolution Applicant is allowed to remove and/or substitute the Monitoring Agency with prior approval of this Adjudicating Authority if the Monitoring Agency is unable to satisfactorily perform its responsibilities or breaches terms of its appointment - the Resolution Plan submitted by "M/s NCIRCLE Exim LLP" is found in conformity of Section 30 (2) of the Code and the same is approved - Application allowed.
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