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2020 (8) TMI 297 - AT - Insolvency and BankruptcyApproval of Resolution Plan - Corporate Debtor is MSME - CIRP process - time limitation - HELD THAT:- The Appellant and Respondent No.3 are claiming that the Plan was received on 9th February, 2019 itself and directly placed before COC. On earlier date of 30.01.2019, SRA was still only a prospective Applicant (See Annexure A-30 Page 217). The RP has not put up material to show that the RP had examined the Plan as required under Section 30(2) of the IBC. There is substance in the claim of the Appellant and Respondent No.3 that the Plan was received on 9th February, 2019 and the same being the only Plan, was rushed through the COC meeting and in two – three hours, it was approved without duly examining the Resolution Plan by the Resolution Professional and without the COC being satisfied as required under Section 30(4) of IBC that the Plan is feasible and viable. We are not interfering with the commercial wisdom of the COC but what appears to us from the record is that the COC did not consider feasibility and viability of the Resolution Plan in case the plant and machinery are taken away by the Respondent No.3. The Respondent No.3 is still insisting on taking away the plant and machinery and there is already judicial Order in view of Respondent No.3 in this regard - Apparently the Corporate Debtor cannot function without the Ethanol plant machinery. Thus, there was compromise of confidentiality regarding liquidation value which appears to have been known to the Respondent No.2 before submitting the Resolution Plan. Apart from this the plant and machinery were not owned by the Corporate Debtor, and the Resolution Plan submitted on the hypothesis that the plant and machinery would be available for business and explanation is clearly a Plan which is not feasible and viable. Thus, the CIRP suffered from material irregularities and the Resolution Plan approved suffers from feasibility and viability. For such reasons, the Resolution Plan as approved deserves to be set aside - matter remitted back to the Adjudicating Authority with a direction to send back the Resolution Plan to the Committee of Creditors to resubmit the Plan - appeal allowed by way of remand.
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