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2022 (8) TMI 234 - Insolvency & Bankruptcy
Appointment of IRP - Learned Adjudicating Authority was of the view that the present IRP is eligible to be appointed as an RP since there is no adverse comments against him and there is no reason to replace him - whether the decision taken by the CoC in their commercial wisdom can be interfered with? - HELD THAT:- Admittedly, the Appellant had filed the Application before the Learned Adjudicating Authority under Section 22(3)(b) of the I&B Code, 2016 with a specific prayer to appoint Shri CA Mahalingam Suresh Kumar Insolvency Professional as the Resolution Professional of the Corporate Debtor. The Application filed by the Appellant is in accordance with law and rightly invoked the provisions of law. As per sub-section (3) of Section 22, the Committee of Creditors in its 1st Meeting by a majority vote not less than 66% of the voting share either to continue the IRP as RP under sub-clause (a) of sub-section (3) - Since the Appellant had complied with the provision of law as mandated and the Adjudicating Authority ought to have considered the same without going into the other technicalities. When the Applicant comply with the provisions of law and there is no scope to reject the prayer or relief as sought by the Applicant.
In the present case, admittedly the 1st CoC was held on 21.01.2022 and at Agenda Item No. B-4 the CoC in accordance with Section 22(2) of the I&B Code, 2016, was resolved unanimously resolved for appointment of Shri CA Mahalingam Suresh Kumar as the Resolution Professional in respect of the Corporate Debtor. Thus, it can be seen that the Appellant is having 98.03% voting share in the Committee of Creditors filed the Application for appointment of RP, hence the voting share of the Appellant in passing the Resolution is much more than the required voting percentage i.e. 66% - This Tribunal is of the view that, since two Members of CoC participated it is deemed 100% voting share in favour of the Resolution and it is a unanimous. In any case, the Appellant is having the majority voting share accorded the Resolution for appointment of new RP.
In view of the decision of the Hon’ble Supreme Court that the commercial wisdom of the CoC is paramount and cannot be interfered with by the Tribunals. Further, the provisions of law empower the CoC contemplated under Section 22 of the I&B Code, 2016 either to continue the IRP as RP or replace the IRP. When the provisions are unambiguous and authorises the CoC to act in accordance with law the same cannot be interfered with by the Tribunals unless and until it is arbitrary, illegal and irrational and dehors the provisions of the Code and the Rules.
This Tribunal comes to an irresistible and inescapable conclusion that the Appellant has made a prima-facie case to be interfered with the order passed by the Adjudicating Authority - Appeal allowed.