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2020 (8) TMI 547 - AT - Insolvency and BankruptcyApproval of the Resolution Plan - impugned order is assailed on the ground that the Adjudicating Authority has failed to consider objections raised by the Appellant to the ‘Resolution Plan’ submitted by ‘APSEZ’ as also the objections raised by the Appellant qua the rejection of settlement proposal submitted by ‘Balaji Infra Projects Limited’ - HELD THAT:- A plain reading of the provision of section 31 of I & B Code, makes it abundantly clear that the Resolution Applicant is required to obtain necessary approval required under any extant law within one year from the date of approval of the Resolution Plan by the Adjudicating Authority or within such time as may be provided in such law but not later than one year. However, this requirement of obtaining the necessary approval pursuant to approval of the Resolution Plan by the Adjudicating Authority has been subjected to one exception carved out in the form of proviso to sub-section (4) which enjoins upon the Resolution Applicant to obtain approval in regard to provision for combination, while such provision has been made in the Resolution Plan, prior to approval of such Resolution Plan by the Committee of Creditors. A cursory look at the provision engrafted in sub-section (4) of Section 31 of the ‘I&B Code’ reveals that while with regard to an ordinary Resolution Plan, the Resolution Applicant is required to obtain necessary approval required under any extant law within one year from the date of such approval by Adjudicating Authority only after such Resolution Plan has been approved by the Adjudicating Authority, however, a Resolution Plan containing the provision for combination is required to obtain approval of the Competition Commission of India prior to the approval of such Resolution Plan by the Committee of Creditors. It is manifestly clear that a Resolution Plan containing provision for combination has been treated as a class apart requiring approval of the Competition Commission of India even prior to such Resolution Plan being approved by the Committee of Creditors. However, treating such requirement as mandatory is fraught with serious consequences. The issue regarding the statutory requirement of a Resolution Plan containing a provision for combination requiring prior approval of the Competition Commission of India even before such Resolution Plan is approved by the Committee of Creditors, being not mandatory and only directory in nature. The view taken by this Appellate Tribunal in ARCELORMITTAL INDIA PVT. LTD VERSUS ABHIJIT GUHATHAKURTA [2020 (1) TMI 277 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] holds the field as the same has not been reversed or set aside in appeal or other proceeding. Obtaining of requisite approval under Competition Act, 2002 with regard to the provision of the Combination in the instant case is stated to be not required as the same is below threshold limit. Objection raised to buttress the argument that in absence of necessary prior statutory approval of the Committee of Creditors qua the combination, Resolution Plan of ‘APSEZ’ is in contravention of Section 31(4) of the ‘I&B Code’, cannot be sustained and the Appellant cannot be heard to say that the approved Resolution Plan of ‘APSEZ’ being in contravention of law leaves no option but to send the Corporate Debtor into liquidation. All objections raised qua the action of the ‘Resolution Professional’ during Corporate Insolvency Resolution Process, approval of ‘Resolution Plan’ of ‘APSEZ’ by the Committee of Creditors and its subsequent approval by the Adjudicating Authority being unfounded are hereby repelled - appeal dismissed.
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