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2022 (8) TMI 649 - Tri - Insolvency and BankruptcyApproval of Resolution plan which is already approved by the CoC, and pending before the Adjudicating Authority for approval - Seeking direction that the resolution plan of the Respondent No. 1 be remanded back to the CoC so that the CoC can reconsider all the resolution plans submitted during the corporate insolvency process of the corporate debtor - HELD THAT:- Right to exercise commercial wisdom has an implied right to review the same. The Hon'ble NCLAT, in the BANK OF MAHARASHTRA AND ORS. VERSUS VIDEOCON INDUSTRIES LTD. AND ORS. [2021 (7) TMI 1292 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI], has clearly stipulated that along with the right to exercise commercial wisdom, the CoC has the right to review such a decision. In the instant case, even though CoC had approved the plan already, pursuant to an affidavit filed by the CoC, the Tribunal considered the request and allowed the plan to be sent back to the CoC for consideration. This was on the basis of the fact that CoC always has a right to review its decision. It is noticed that the present application was filed by the Asset Reconstruction Company (India) Ltd., being the authorised representative of the CoC by passing the resolution with 96.95% for filing the present application. It is also noticed that the parent company of Respondent No. 1, i.e., Gulf Petrochem FCZ has been declared bankrupt and there is a freezing injunction on the promoters. The credit rating of the Respondent No. 1 is in default as on June 04, 2021. The successful resolution applicant has defaulted in other CIRP of M/s. Allied Strips Ltd. and M/s. Tirupati Infraprojects Pvt. Ltd., wherein also he was the successful resolution applicant. In this background, the present application has been moved by the CoC/lenders, with 96.95% voting in its favour, for remanding back the resolution plan for reconsideration of the CoC. The resolution plan can be sent back for reconsideration to the CoC, considering the changed circumstances and the commercial wisdom of the CoC, with 96.95% voting, to seek permission of Adjudicating Authority for reconsideration of the resolution plan need to be considered for better prospects of Resolution. The Tribunal is well within its rights to send back the resolution plan for reconsideration to the CoC, on request made by the CoC in its commercial wisdom - thus, NCLT does have the right to send back resolution plans for reconsideration if requested by the CoC. Also, it is settled law that the CoC of any corporate debtor has the sole right to decide on the terms of the Resolution Plan and that exercise of commercial wisdom by the CoC is also non-justiciable. The present resolution plan remanded to CoC - application allowed.
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