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2020 (12) TMI 33 - Tri - Insolvency and BankruptcyStay of liquidation application pending disposal of the instant Application - Liquidation of Corporate Debtor - it was alleged that the Applicant is not cooperating with the RP for providing the details of the Corporate Debtor and the said Application is pending adjudication before this Tribunal - Power of Adjudicating Authority (NCLT) to analyse or evaluate the commercial decision of the CoC much less to enquire into the justness of the rejection of the resolution plan by the dissenting financial creditors - HELD THAT:- The Applicant has not put forth any concrete proposal of settlement before the 2nd Respondent, who is a Financial Creditor, and thereby making a statement that the Applicant has identified a financier/buyer who would provide financial assistance to the Corporate Debtor and the Applicant would want the 2nd Respondent to negotiate the terms with the said financier/buyer. Power of Adjudicating Authority (NCLT) to analyse or evaluate the commercial decision of the CoC much less to enquire into the justness of the rejection of the resolution plan by the dissenting financial creditors - HELD THAT:- The legislature has not endowed the Adjudicating Authority (NCLT) with the jurisdiction or authority to analyse or evaluate the commercial decision of the CoC much less to enquire into the justness of the rejection of the resolution plan by the dissenting financial creditors. From the legislative history and the background in which the I&B Code has been enacted, it is noticed that a completely new approach has been adopted for speeding up the recovery of the debt due from the defaulting companies. In the new approach, there is a calm period followed by a swift resolution process to be completed within 270 days (outer limit) failing which, initiation of liquidation process has been made inevitable and mandatory. In the earlier regime, the corporate debtor could indefinitely continue to enjoy the protection given under Section 22 of Sick Industrial Companies Act, 1985 or under other such enactments which has now been forsaken. Besides, the commercial wisdom of the CoC has been given paramount status without any judicial intervention, for ensuring completion of the stated processes within the timelines prescribed by the I&B Code. Reliance can be placed in the case of COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT], from where it is manifestly made clear that this Authority cannot venture in the commercial decision taken by the CoC and as such, the opinion to liquidate the Corporate Debtor is being made after due deliberations in the CoC meetings through voting, and hence the same is a collective business decision. As already stated in the Judgment, the legislature has consciously not provided any ground to challenge the "commercial wisdom" of the individual financial creditor or their collective decision before the Adjudicating Authority - Needless to say, that even during the Liquidation process, subject to Section 29A of the IBC, 2016 and as per Regulation 2B of the IBBI (Liquidation Process) Regulations, 2016, a 90 day time period is provided to the Applicant to submit a Scheme as contemplated under Section 230 of the Companies Act, 2013, and if the Applicant is otherwise found eligible can very well submit a Scheme for the revival of the Corporate Debtor. Application dismissed.
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