TMI Blog2019 (11) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... oved. - CP (IB) NOS. 1439/KB/2018 And 1205/KB/2019 - - - Dated:- 25-11-2019 - Jinan K.R., Judicial Member For the Appearing Parties : Ramesh Ch. Prusti, Ms. Mahuya Ghosh, Advs., Surya Kanta Satpathy, PR, Ratnanko Banerjee, Sr. Adv., Mrs. Manju Bhuteria, Deepak Agarwal, Pritu Grarg, Prasad Mukherjee, Ms. Urmila Chakraborthy, A Agarwalla, Rahul Das and B Sharma, ORDER 1. The CP(IB) No. 1439/KB/2018 was filed by Mr. Hemant Khaitan/Operational Creditor, an ex employee of the Corporate Debtor Company, who was working as a Business Development Manager claiming that an unpaid operational debt to the tune of ₹ 10,00,800/- (Rupees Ten Lakh Eight hundred only) is due from the Operational Creditor (In short OC) as arrears of his salary and filed this application for initiating CIRP as against the Corporate Debtor (In short CD) M/s. Alex Green Energy Pvt. Ltd. 2. M/s. Alex Green Energy Pvt. Ltd., seems to have been incorporated in the year 2012, was engaged in the business of solar power generation. As per the Power Purchase Agreement (PPA) with GRIDCO, the Corporate Debtor supplied its entire production of power generated at GRIDCO. While so, the control room and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three Resolution Applicants, the request of Shanti GD Ispat Power Pvt. Ltd, has been declined by the RP. While so, on 04-11-2019, the Applicant in CA(IB) No. 1205/KB/2019, Kundan Care Products Ltd. by way of an E-Mail requested the RP for considering them for negotiation. That request of the said applicant also was declined since the Committee of Creditors already decided to process, as per RF-RP, the top three Resolution Applicants only and since the Resolution Plans of, Kundan Care Products Ltd. doesn't falls within the three top rank. The top ranked resolution applicants as per the evaluation matrix are the below mentioned Resolution Applicants:- 1. YK Dalmia 2. Fortis Chemicals Private Limited 3. MGM Green Energy Limited 6. According to the Ld. Counsel for the RP, as per the mandate in the RF-RP, M/s. Fortis Chemicals Pvt. Ltd. and M/s. MGM Green Energy Limited, were firstly called for negotiation and as a result of negotiation, Fortis Chemicals Private Limited, offered ₹ 11.07 Crores (Rupees Eleven Crores Seven Lakh only) as the resolution bid amount. On getting the plan bid amount from Fortis Chemicals Private Limited, who was ranked as H2, the Committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Swiss Challenge Method as contemplated in the RF-RP and non-consideration of the request for negotiation and submission of revised bid enhancing the bid amount already offered by the Applicant, is fatal in the nature of the case in hand and therefore, upon the said submissions, prays for issuing direction to the RP to conduct an open and transparent bidding process, disclosing the score allotted to all the Resolution Applicants under each respective head forming part of the evaluation and to permit the Resolution Applicant herein, to negotiate and submit the revised Plan. 10. This Application was objected to by the RP. According to the Ld. Counsel for the RP, the objection that the RP skipped Step-III of Evaluation Process is devoid of any merit. He would submit that compliance of Step-III is optional and at the discretion of the CoC and RP is nothing to do with the skipping. For a better understanding what is Step-III it is good to read it. It reads as follows :- Step - III: Presentation of Resolution Plans by Resolution Applicants whose compliant Resolution Plans have been submitted by the Resolution Professional to CoC as may be deemed necessary and as advised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Applicant has been ranked as the 6th The above-said information was received by the Applicant at about 8-59 pm. on 01-11-2019 itself. The Resolution Professional, in the meanwhile, as per the Resolution Plan Evaluation Process (RPEP), has taken steps for negotiation with the top three Resolution Applicants and they were called for negotiation on 04-11-2019 for finalising the bidding process at the 12th CoC meeting held on 04-11-2019. It is on that day at about 2-02 pm., the Applicant in this CA, sent an E-mail showing their willingness to increase the value of Project by more than the double near about. It is good to read the two line E-mail sent by the Applicant to the RP on 04-11-2019, which reads as below : Dear Alex Team, As discussed in the morning, we are ready to increase the value of project by more than the double near about. Please give us chance to participate in negotiation process and maximise the bank value. Request you not finalize negotiation process before considering our value. Regards Kartik Jain 15. The RP immediately sent a reply to the said E-mail addressed to the RP, by about 7-29 pm., informing the Applicant that as per the RPEP, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on 04-11-2019, the allegation that the bid was not open and transparent is found devoid of any merit. 18. In view of the above said factors, it appears to me that non-consideration of the late request of the Applicant/Kundan Care Products Ltd., is not unfair or not against the statutory mandate of maximising the value of the assets of the Corporate Debtor, as attempted to establish on the side of the Applicant. 19. The Ld. Senior Counsel, at this juncture, referring to Binani Cement Limited case Bank of Baroda v. Binani Cement Ltd. [2018] 97 taxmann.com 659 (NCLT - Kol.) a judgment of this Bench, attempted to highlight an argument that in a similar situations, this Adjudicating Authority, allowed the Application of Ultratech, a Resolution Applicant, who was not an H1 bidder for non-consideration of its offer. The facts in the above cited case is not at all similar to the facts in the case in hand. In the above said case, this Bench has observed that shutting out an opportunity to a prospective bidder in participating the bidding process which it is otherwise entitled to compete is found unjust and found denied an opportunity to the applicant who had offered much more tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount the fact the Corporate Debtor needs to keep going as a going concern during the Insolvency Resolution Process, that it needs to maximise the value of its assets and interest of the stakeholders including the Operational Creditors have been taken care of. 23. Bearing in mind the above said propositions, settled by the Hon'ble Supreme Court, it appears to me that the approval of the Resolution Plan, in the case in hand, could not be disturbed for the reason highlighted on the side of the unsuccessful Resolution Applicant/Kundan Care Products Ltd. In view of the aforesaid position of law, and the circumstances discussed above, I can rightly hold that the application filed by the Kundan Care Products Ltd requires no consideration. If it is allowed after completion of 270 days no doubt it would amount to interference with the commercial decision taken by 95.15% vote share of the members of the COC. Therefore, this application CA(IB) 1205/KB/2019 is liable to be dismissed. 24. In the light of the law and the circumstances above discussed, let me now examine the Resolution Plan of the Corporate Debtor approved by the CoC. The successful Resolution Applicant, Fortis Chemic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the corporate debtor approved by the CoC by 95.15% vote share is liable to be approved. Accordingly the Resolution Plan is approved, upon the following among:- ORDERS (i) The Resolution Plan submitted by Fortis Chemicals Pvt. Ltd., which has been approved by the CoC by 95.15% voting share, is hereby approved under provisions of sub-section(l) of Section 31 of the Insolvency and Bankruptcy Code, 2016, which shall be binding on the Corporate Debtor, M/s. Alex Green Energy Pvt. Ltd., its employees, members, creditors, guarantors, including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force, such authorities to whom statutory dues are owed and other stakeholders involved in the Resolution Plan; (ii) The moratorium order passed under section 14 shall cease to have effect. (iii) The Resolution Professional shall forward all records relating to the conduct of the Corporate Insolvency Resolution Process and the Resolution Plan to the Insolvency and Bankruptcy Board of India to be recorded in its database. (iv) CA(IB) No. 1205/KB/2019, is dismissed. However ..... 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