TMI Blog2019 (5) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... ors in which the Resolution Plan of the Applicant is considered. The Committee of Creditors is required to notice the Resolution Plan to find out its viability and feasibility apart from the financial matrix and in appropriate cases may ask the Resolution Applicant to improve the plan. The date of approval for Resolution Plan is fixed by the Committee of Creditors . They may fix the date of voting and in appropriate case they may extend the period of voting. There is no provision that once a voting is made, after the final result, if it comes to the conclusion finally in absence of approval of the plan, the Corporate Debtor may be ordered for liquidation. It is always open to the Committee of Creditors to change their opinion. The Resolution Process took place within 270 days and the Committee of Creditors had the jurisdiction to change its opinion in favour of the Resolution Plan to make it a success and Regulation 26(2) being directory which also stands deleted - impugned order set aside - the Resolution Plan being in conformity with Section 30(2) warranted approval by the Adjudicating Authority. The case is remitted to the Adjudicating Authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result, the IDBI Trusteeship Services having 0.42% voting shares and Ms. Hema Shah having 0.04% voting shares, who earlier voted against, changed their opinion and conveyed favourable vote on the same date i.e. on 27th March, 2018. 3. The Indian Bank having voting shares of 6.31% which had abstained from voting previously, sent a letter to the Resolution Professional approving the Final Resolution Plan . The Standard Chartered Bank having 3.31% voting shares changed its dissent on 2nd April, 2018 and assented in favour of the Resolution Plan . The Bank of India having 9.11% voting shares changed its dissent on 6th April, 2018 and assented in favour of the Resolution Plan . Thus, in fact, the voting which started on 26th March, 2018 continued upto 6th April, 2018. Finally, the Committee of Creditors with 81.31% of the voting shares approved the Resolution Plan on 6th April, 2018. 4. The Resolution Professional submitted the approved Resolution Plan of Mr. Sharad Sanghi before the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, Mumbai, and also requested to exclude certain period. However, the Adjudicating Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the Appellants submitted that application under Section 7 was admitted on 4th July, 2017 and order was signed and uploaded on 12th July, 2017 i.e. after eight days whereinafter the Interim Resolution Professional had taken charge. 8. Referring to the decision of this Appellate Tribunal in Quinn Logistics India Pvt. Ltd. vs. Mack Soft Tech Pvt. Ltd.─ SCC OnLine NCLAT 243 , learned counsel for the Appellants submitted that the aforesaid period of eight days if excluded, then it will be clear that the approved Resolution Plan was approved and submitted within 270 days which comes to 8th April, 2018. 9. Regulation 26 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 deals with voting through electronic means. Clause (2) of the Regulation 26 as it then was, is as follows: 26. Voting through electronic means.─ xxx xxx xxx ( 2) Once a vote on a resolution is cast by a member of the committee, such member shall not be allowed to change it subsequently. In view of the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulation 26(2) w.e.f. 4th July, 2018. If it would not have been deleted, one could have argued that Regulation 26(2) is arbitrary as it does not allow the Committee of Creditors to form its final opinion. 14. A Resolution Plan which may be viable, feasible and of acceptable financial matrix and which is not against the provision of Section 30(2), if majority of the members having voting shares approve it but falls short of the 75% (now 66%) limit as has been prescribed and later on it comes to the notice of one or other members that because of the failure the Corporate Debtor will be liquidated, it is always open to the members to change its opinion subsequently with the approval of the rest of the members of the Committee of Creditors but it should be within 270 days. 15. In view of the aforesaid findings and the facts as emerges, we hold that the Resolution Plan in question stands approved by the Committee of Creditors with 81.39% voting shares. 16. In the case of Quinn Logistics India Pvt. Ltd. (Supra) which was affirmed by the Hon ble Supreme Court, this Appellate Tribunal observed that the period of non-joining o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. We have noticed that the Adjudicating Authority has made certain observations with regard to the timeline given by the Resolution Applicant . Learned counsel appearing on behalf of the Resolution Applicant submits that the total period of 15 years will be reduced to 12 years. 24. In view of the aforesaid findings and as we have already held that the Resolution Process took place within 270 days and the Committee of Creditors had the jurisdiction to change its opinion in favour of the Resolution Plan to make it a success and Regulation 26(2) being directory which also stands deleted, we set aside the impugned order and hold that the Resolution Plan being in conformity with Section 30(2) warranted approval by the Adjudicating Authority. 25. However, we make it clear that to make the Resolution Process successful, though it is open to the Committee of Creditors to change its opinion by assenting in favour of one or other plan, we further hold that the Committee of Creditors once voted in favour of the Resolution Plan cannot change its views. 26. In the result, the case is remitted to the Adjudicating Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
