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2024 (2) TMI 736 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHIRejection of application seeking a direction to the Resolution Professional to include the Appellant in the Committee of Creditors (CoC) and also to provide voting rights to the Applicant/ Appellant - The appellant, a foreign financial lender, extended loans to the Corporate Debtor - Appellant is a related party of the Corporate Debtor or not - HELD THAT:- Appellant has nothing to do with day to day functions of the Corporate Debtor, appointment of staff and employees of the Corporate Debtor or any of the day to day functions. The Adjudicating Authority again committed error in treating actions of Rembert Biemond as actions of Appellant. The Adjudicating Authority observed that Rembert Biemond is Managing Director of the Appellant - It is already noticed that when there are more than one Managing Director, functions on behalf of the Appellant can be carried out at least by two Managing Directors. Present is not a case that there is any evidence that two Managing Directors did any action which may suggest or indicate participation in the policy making process of the Corporate Debtor, therefore, finding of the Adjudicating Authority with regard to Section 5(24)(m)(i) is without any basis and cannot be sustained. The Adjudicating Authority failed to notice that Rembert Biemond is in the Board of Director of the Corporate Debtor since 2017 when he was nominated by a foreign investor of the Corporate Debtor and Rembert Biemond was not nominated by the Appellant in the Board of Corporate Debtor. Hence, the whole observation is fallacious. In spite of pleading of the Appellant that there was no material to suggest essential technical information were received by the Appellant or were given by the Appellant to the Corporate Debtor. No finding has been returned referring to any material. Appellant was only Financial Creditor who has extended loan to the Corporate Debtor. There being neither any pleading regarding provision of essential technical information to, or from, the Corporate Debtor nor any proof, there was no occasion to come to the conclusion that condition under Section 5(24)(m) were fulfilled - The conclusion of the Adjudicating Authority were wholly baseless. The Adjudicating Authority having not accepted the Appellant being related party on the basis of Section 5(24)(d) and holding of related party only on the basis of Section 5(24)(h) and (m), which already found that Section 5(24)(h) and (m) are not attracted, there are no substance in submission of learned counsel for the IRP that Appellant is a related party. The Adjudicating Authority committed error in holding the Appellant as a related party and rejecting application filed by the Appellant - the impugned order set aside - appeal allowed.
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