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2021 (6) TMI 279 - Tri - Insolvency and BankruptcySeeking approval of the Resolution Plan - priority of payments of charges of CIRP costs and Operational Costs - Section 31 of the Code read with Regulation 39 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- In respect of compliance of Section 30(2)(a) of the Code, it is seen that there is a provision in the resolution plan at clause 4.1(ii) & clause 8.2 which provides for payment of CIRP costs in priority over payments to any other creditors from the upfront amount brought in by the RA. The Resolution Professional has also confirmed in the compliance certificate given in Form H that the Resolution Plan provides for the payment of Insolvency Resolution Process costs. Be that as it may it is made clear that Insolvency Resolution Process cost shall be paid in its entirety by the resolution applicant in priority to other debts of the corporate debtor - As regards compliance of clause (b) of Section 30(2) of the Code, the Resolution Professional has certified that the resolution plan provides for the payment of the debts of operational creditors in such manner as may be specified by the Board which shall not be less than the amount to be paid to the operational creditors in the event of a liquidation of the corporate debtor under Section 53. There appears to be no discrimination in the resolution plan in respective class of creditors, as same treatment is provided to similarly situated each class of creditors - it is seen that clause (b) of sub-section (2) of Section 30 of the Code stands satisfied. All the requirements of Section 30(2) are fulfilled and no provision of the law for the time being in force appears to have been contravened - It is a well settled proposition of law that commercial and business decisions of CoC are not open to judicial review. Adjudicating Authority cannot enquire into the commercial wisdom of CoC. The ground for rejection is limited to the matter specified under Section 30(2). It is however reiterated that the resolution plan in question meets the requirements specified in Section 30(2) of the Code and the reasoned commercial decision of CoC is neither discriminatory nor perverse. The requirements as per the Code and regulations have been complied with - It is clarified that Section 30(2)(f) of the Code mandates that the resolution plan should not be against any provisions of the existing law - Resolution Plan is approved - approved 'Resolution Plan' shall become effective from the date of passing of this order.
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