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2020 (8) TMI 793 - AT - Insolvency and BankruptcyApproval of Resolution Plan - rejection of Settlement Plan - allegation that the Promoter/ Director had failed to comply with the direction of this Appellate Tribunal and the Hon’ble Apex Court - time limitation. Whether the appeal is barred by limitation? - HELD THAT:- The period of limitation for filing appeal has to be counted with effect from the date certified copy of the impugned order was received by the Appellant viz. 27th January, 2020 and not with effect from the date of impugned order viz. 20th January, 2020. Admittedly, the appeal was filed on 12th March, 2020. Therefore, excluding the date of receipt of certified copy of the impugned order by Appellant and the date of filing of appeal, it is unambiguously clear that only 44 days have been consumed in preferring the appeal - the appeal being filed beyond the extended period of limitation has no substance and the same is overruled. Availability of alternative remedy - HELD THAT:- Though an efficacious remedy was available in the form of statutory appeal under ‘I&B Code’, it cannot be disputed that the substantive remedy in the form of Writ Petition filed on the very day of communication of the impugned order, followed by stay of proceedings and dismissal of the Writ Petition would bring the matter within the fold of remedy being pursued in exercise of legitimate right warranting its exclusion while computing the limitation and once it is recognised as a ground for extension of limitation within the ambit of Sections 14 and 15 of the Limitation Act, 1963, sufficient cause for condonation of delay can safely be said to have been made out for purposes of extension of time within the purview of Section 61(2) of the ‘I&B Code’. Objection raised on this score is accordingly repelled and extension of 14 days in preferring the appeal is allowed. Whether the Settlement Plan of the Corporate Debtor has been improperly rejected and Resolution Plan of Respondent No.8 has been approved overlooking the illegalities/flaws? - HELD THAT:- The commercial wisdom of the Committee of Creditors in regard to viability and feasibility of the Resolution Plan is final and this Appellate Tribunal cannot substitute its view for the commercial wisdom of the Committee of Creditors. Evaluation of the financial matrix, feasibility of the plan and its viability are areas falling within the ambit of business decision based on commercial wisdom of the Committee of Creditors and inquiry in appeal before this Appellate Tribunal is limited to the grounds under Section 61(3) of the ‘I&B Code’. In the instant case, it is not disputed that the Successful Resolution Plan, apart from disclosing the source of funds in the form of infusion by the Resolution Applicant and receivables from Government has passed the muster before the Committee of Creditors and has been found better than the Settlement Plan offered by the Appellant/ promoter which was found lacking on many material aspects. The Resolution Plan submitted by the Respondent No.8 had already been approved by the Committee of Creditors prior to same being subjected to comparison with the Settlement Plan emanating from the Appellant/ Promoter and upon comparison by the Committee of Creditors it has again emerged as being viable, feasible and acceptable in priority to the proposed Settlement Plan of Promoter. In our considered opinion no exceptional circumstances justifying review of decision of Committee of Creditors in regard to rejection of the Settlement Plan and the approved Resolution Plan being a ‘better one’ do exist in the instant case. Appeal dismissed.
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