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TMI Blog2020 (7) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mr Sikhar Singh, Advocates JUDGMENT PER; V. P. SINGH, MEMBER (T) 1. This Appeal has been filed against the Impugned Judgment dated 30th January, 2020 passed by NCLT Cuttack Bench in CA (IB) No. 160/CTB/2019 whereby the Ld. Adjudicating Authority has dismissed the Application filed by the Appellant for seeking intervention and directions for reconsideration of its Resolution Plan before accepting the resolution plan submitted by the Successful Resolution Applicant, mechanically without appreciating the submissions of the Appellant. 2. Appellant contends that the Adjudicating Authority has failed to exercise its power under Section 31 of the Code which mandates that the Adjudicating Authority has to apply its mind before approving or re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Section 60(5) of the IBC seeking intervention in the matter and further directions to the COC to reconsider the Resolution Plan of the Appellant on merits and approve the resolution plan being the most viable on quantitative and qualitative parameters. But the Adjudicating Authority vide the impugned order rejected the Application which is under challenge in this Appeal. 5. It is essential to mention that the Resolution Applicant has no vested right that his Resolution Plan must be considered. It is settled position of law as laid down by Hon'ble Supreme Court in (2019) 2 SCC 1 in case of Arcelor Mittal India Pvt Ltd Satish Kumar Gupta that the resolution applicant does not have any vested right that his Resolution Plan must be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oC and is reflected in the minutes of the meeting. It is also contended by the Respondent that the evaluation criteria for evaluating the Resolution Plan taken into consideration various financial and non-financial criteria including the equity infusion to continue to manage the corporate debtor as a going concern. After assessing both the resolution plans on the evaluation matrix, the CoC has scored STPL plan higher and approved the same. 10. The Respondent further contends that the CoC has duly considered the payments being made to Operational Creditors before exercise of its commercial decision to vote in favour of STPL's resolution plan which is, non-justiciable as per the law laid down by the Hon'ble Supreme Court. 11. It is pertinen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, it is clear that the jurisdiction bestowed upon this Appellate Tribunal too is expressly circumscribed. The examination in challenge to the approved Resolution Plan by this Tribunal is limited to matters other than enquiry into the business decision based on commercial wisdom of the Committee of Creditors. The limited judicial review in Appeal does not extend to oversee and question the business decision of the majority of Committee of Creditors and the Committee of Creditors cannot be directed to reverse its business decision or reconsider a settlement proposal that has been rejected with requisite majority. 4. In 'Maharashtra Seamless Limited Vs. Padmanabhan Venkatesh & Others', Civil Appeal No.4242 of 2019 vide judgment dated 22nd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rformer or a chronic defaulter. The fact that the concerned corporate debtor was still able to carry on its business activities does not obligate the financial creditors to postpone the recovery of the debt due or to prolong their losses indefinitely. Be that as it may, the scope of enquiry and the grounds on which the decision of "approval" of the resolution plan by the CoC can be interfered with by the adjudicating Authority (NCLT), has been set out in Section 31(1) read with Section 30(2) and by the appellate Tribunal (NCLAT) under Section 32 read with Section 61(3) of the I&B Code. No corresponding provision has been envisaged by the legislature to empower the resolution professional, the adjudicating Authority (NCLT) or for that matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irection in relation to the exercise of commercial wisdom of the financial creditors - be it for approving, rejecting or abstaining, as the case may be. Even the inquiry before the Appellate Authority (NCLAT) is limited to the grounds under Section 61(3) of the I&B Code. It does not postulate jurisdiction to undertake scrutiny of the justness of the opinion expressed by financial creditors at the time of voting. To take any other view would enable even the minority dissenting financial creditors to question the logic or justness of the commercial opinion expressed by the majority of the financial creditors albeit by requisite percent of voting share to approve the resolution plan; and in the process authorize the adjudicating Authority to r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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