TMI Blog2019 (12) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... which is a leading mall in the city in operation, we hope it would fetch more value if the COC have had an open bidding among the resolution applicants - It is settled position of law as to the discretionary power of the COC to take the best decision in the interest of maximisation of asset value. We are also unable to see the recording of deliberations regarding the feasibility and viability of the plan selected among the three Plans in the minutes. The plan before us is not adhering to the object of the Code i.e. maximising the value of assets and balancing the interests of the stakeholders. There is unjust discrimination in regard to choosing one out of Three Resolution Applicants. In view of the above said factors, the plan submitted for approval is to be returned for submitting a revised plan enhancing the resolution bid amount if the resolution applicant wishes to improve its bid. Since the 330 period of CIRP would expire on 21.01.2020 in the instant case, the COC has to complete the process within a short span of period. The resolution plan of HI bidder Shrawan Kumar Agarwal is to be returned to RP forthwith. - C.A. (IB) NOS. 1577 AND 1650/KB/2019 - - - Dated:- 10-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in identifying the HI of the Corporate Insolvency Resolution process of the Corporate Debtor has not been complied in accordance with the provision of the Code and regulations. c. Invitation of Expression of Interest was not made in compliance of the mandate of a regulation 36E of the Insolvency Resolution Regulation. Although, the Resolution Professional has made third publication of EOI lastly on 16th September, 2019 inviting Expression of interest on or before 1st October, 2019 by publishing Corrigendum dated 18th September, 2019 reduced the period for submission of Expression of Interest from 15 days to 7 days. Such reduction in the period for submission of Expression of Interest was contrary to rule 36E and thus invalid. 4. Ld. Sr. Counsel for the applicant submits that RARL submitted a Resolution Plan and that RARL formed a joint venture with the Applicant herein in order to submit a joint bid in respect of the Corporate Insolvency Resolution Process as against the Corporate Debtor and, therefore, the Applicant was an equal participant in the resolution bid submitted by the RARL. He further submitted that the representative of the applicant had attended the meeting of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l purported to be issued by the RARL disclosing that the promoter of Phil Mineral Benefication Energy private Limited, Mr. Pradeep Chandra Jha has participated along with RARL as joint Resolution applicant/investors in the Resolution Plan submitted by RARL. This case was partly heard on 28.11.2019 and hearing was concluded on 05.11.2019. So no weightage can be given to the said letter. 8. In the above said circumstances we find that there is some force in the argument on the side of the learned counsel for the Resolution professional , that the applicant Phil Mineral Benefication Energy Private Limited has no locus Standi, to object to the approval of the Resolution Plan under consideration. It is significant to note here that RARL has not come forward challenging the approval or that they were treated indiscriminately so as to choose HI bidder by the COC. However, its contention that the bidding process followed by the Resolution Professional and the Committee of Creditors in identifying the best suitable HI of the Corporate Insolvency Resolution process of the Corporate Debtor has not been done transparently without giving any room for complaint, has some force. The said o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e over clause 1.3 of Request For Resolution Plan (RFRP) empowers the COC at any time before the approval of the Resolution Plan to amend, modify or supplement points to RFRP. Being satisfied that there is no modification as alleged on the side of the applicant has been done in the case in hand. We do not find any force in the argument that there is violation of Regulation 36(B) 3 of the CIRP Regulation. Upon hearing on both side and upon perusal of the minutes and the documents, we are satisfied that the complaint regarding non compliance of the procedure to be followed by the Resolution Professional is devoid of any merit. 12. The contention that the applicant has not been given permission to enter into the data room and the data room does not show the agreement of mall and separate financial for mall and hotels and that the access to mall and hotel to look at the same has not been arranged also found not true but false. The Learned Counsel appearing for the Resolution professional brought to our notice the data regarding the access made by the Resolution Applicants in the data room of the corporate debtor. A very look at the access entries proves that on 11.08.2019 the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above said minutes. It reads as under:- After deliberation and discussions by the COC the final results were disclosed by calling the resolution applicants present. In front of resolution applicants COC disclosed and announced the HI (Shrawan Kumar Agrawa/ - Consortium), H2(Rare ARC) and H3 (Rituraj Steel Industries Pvt. Ltd.) The resolution applicants were requested to send their final offer in email also which was duly received from Shrawan Kumar Agrawal - Consortium Rare ARC in confirmation of final figures. After that the said matter was proposed to be put for voting. Resolution Professional informed COC that since one of the member attended through video conferencing, e voting is must. Then it is decided to have voting through e voting system. Resolution Professional requested al/ the COC members to vote for approval of plan amongst all the three resolution plans received. The following resolution passed. RESOLVED that Resolution Plans submitted by Shrawan Kumar Agrawal(consortium), Rare ARC and Rituraj Steel Industries Pvt. Ltd. is hereby proposed to be voted separately for voting to declare successful resolution applicant. 16. A reading of the minutes an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Counsel for the PHIL submits that its associate offered ₹ 94.5 Crores and Ld. Counsel for the H3 submits that it offered ₹ 102.00 crores and their respective offers were not considered by the RP and not placed before the COC. According to the Ld. Counsel for the RP no such offers were made by them as submitted before conclusion of the CIRP and that no such offer was made by PHIL or RARL and further submits that H3 offered ₹ 92.00 Crores and not 102.00 Crores. That too offered on 26th November 2019 after the approval of the resolution plan and thereby the said offers were not considered by the COC, argued by the Ld. Counsel for the RP. 20. The Code no doubt is aimed at maximising the value of the stressed assets of the Corporate Debtor in a time bound manner so as to balance the interest of all stakeholders. Truly, 270 days period of CIRP process had already expired on 22-11-2019 and the final negotiation of bidding process was held on 20-11-2019. The process of negotiations for choosing the best offer seems to have been held by the RP hurriedly under the guise of time line. Truly, the RP is bound to complete the process within the time line prescribed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi ] Oriental Bank of Commerce V. Bindals Sponge Industries Limited, CP(lB)-60(PB)/2018- National Company Law Tribunal, New Delhi, Principal Bench, and Edelweiss Asset Reconstruction Co. Ltd. - Vs.- Jalan Intercontinental Hotels (P) Ltd, [CP(IB) No. 397/KB/2017 - CA(IB) No. 405/KB/2018 -NCLT, Kolkata Bench-Il], for highlighting an argument that COC is bound to act upon an established procedure in regard to selecting the best among the resolution applicants and when there is evidence proving that the COC failed in its effort to give fair and reasonable opportunity to all the final bidders ensuring maximization of value of the assets of the corporate debtor this Adjudicating Authority is not powerless to issue directions especially when 330 days in the case in hand have not expired. 24. In view of the above said position of law laid down in the cited judgements, and since the provisions of Section 12 have now been amended, and as per 2nd proviso CIRP is mandatorily be completed within period of 330 days and the said 330 days only would expire in the case in hand only on 21st January,2020, it appears to us that this is a fit case to issue direction to COC to reconsider all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the resolution applicant wishes to improve its bid. Since the 330 period of CIRP would expire on 21.01.2020 in the instant case, the COC has to complete the process within a short span of period. 28. Keeping in view of what is discussed above, we are passing the following :- ORDERS i) The resolution plan of HI bidder Shrawan Kumar Agarwal is to be returned to RP forthwith. ii) The resolution professional is directed to conduct re-bidding process and conclude the process within 15 days and file the re- approved resolution plan on or before 31st December 2019. iii) All the three resolution applicants i.e. Consortium of Shrawan Kumar Agarwal (HI), Rare Asset Reconstruction Limited (RARL-H2) and Rituraj Steel Private Ltd. (H3) alone are hereby directed to submit its revised bid in a sealed cover within 5 days from today. iv) RP has to convene a special meeting of the COC immediately after the receipt of the offers in a sealed cover and place it before the coc. v) The closed envelop of the resolution applicants if any received to be opened in the presence of the resolution applicants who placed its revised offers if any. The COC can have negotiations for further ..... 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