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2019 (9) TMI 894 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHICIRP - discrimination against secured creditor - separate treatment to dissenting ‘Secured Financial Creditors’ - Liability of successful resolution applicant to remove the discrimination - HELD THAT:- (Un-amended/ old) Regulation 38 having held to be discriminatory was substituted on 5th October, 2018 by new Regulation 38. Sub-clause (c) of clause (1) of Regulation 38 shows that the liquidation value payable to dissenting financial Creditors has been deleted. In Swiss Ribbons Pvt. Ltd. & Anr. vs. Union of India & Ors. [2019 (1) TMI 1508 - SUPREME COURT], the Hon’ble Supreme Court observed that “the NCLAT while looking into viability and feasibility of resolution plans as approved by the committee of creditors, always gone into whether the operational creditors are given roughly the same treatment as financial creditors, and if they are not, such plans are either rejected or modified so that the operational creditors' rights are safeguarded”. In the present case, the ‘Resolution Plan’ approved by the ‘Committee of Creditors’ do not confirm the test of Section 30(2) (e), being discriminatory, as having discriminated the similarly situated ‘Secured Creditors’. The Insolvency and Bankruptcy Board of India has not provided for separate treatment to dissenting ‘Secured Financial Creditors’ who do not vote in favour of the ‘Resolution Plan’. No such amendment has been made in Regulation 38 since amended Section 30(2) (b) came into force i.e. 16th August, 2019. The Appellant a ‘Secured Financial Creditor’ has been discriminated with other ‘Secured Financial Creditors’, we hold that the ‘Resolution Plan’ is violative of Section 30(2) (e) of the ‘I&B Code’. However, we are not inclined to set aside the approved plan on such ground. The ‘Successful Resolution Applicant’ is given opportunity to remove the discrimination of Appellant by providing similar treatment as provided to other similarly situated ‘Financial Creditors’. Appeal allowed.
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