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TMI Blog2019 (12) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... ompliance to the terms of the Code and the relevant Rules and Regulations. The Resolution Professional submits that advertisements inviting claims from the creditors were issued, valuers were appointed, advertisement inviting Expression of Interest (EOI) was published in two newspapers, Information Memorandum was prepared, three Expression of Interests (EOI) were received from three prospective Resolution Applicants, however, none had complied with the criteria as set out by the Members of the CoC U/s 25(2) (h) of IBC. Further it was brought to the notice of the CoC that the Applicant received an email from a Prospective Resolution Applicant, however, the said EOI was received after the last date and therefore the same was put up before CoC for consideration. The CoC concluded that the said EOI may be entertained. 3. It is submitted by the RP that he received resolution plan from the Resolution Applicant. It is stated that, the resolution plan confirmed to the condition's U/s 30(2) of the I&B Code and the RP submitted a note, certifying the same, to the CoC. The RP has confirmed that the resolution applicant aims and believes that there is a potential to revive the Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Ltd have formed a consortium in order to jointly enter a resolution plan in the CIRP of the Corporate Debtor. This consortium is led by Vyom Tele Infrastructure Private Ltd. 9. The Resolution Applicant vide his Resolution Plan submits that they intend to continue the business of the Corporate Debtor as a going concern. It is submitted by the Resolution Applicant that the Corporate Debtor has a healthy portfolio of listed and unlisted stocks/shares which can yield healthy returns for Corporate Debtor in the long run. The Corporate Debtor has trade receivables which are due to be paid to the Corporate Debtor, the Resolution Applicant will make efforts to recover the said trade receivables. The Resolution Applicant is desirous of entering the business of financing and advancing short term & long-term loans and credit to individuals, companies or associations of individuals. The Corporate Debtor has been a part of the financing business for over four decades and has a good foothold in the business of financing and advancing short term & long-term loans. 10. As per the Resolution Plan, from the NCLT Approval Date, and till the occurrence of the Effective Date, the Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirements as may be specified by the Board. (3) The resolution professional shall present to the committee of creditors for its approval such resolution plans which confirm the conditions referred to in subsection (2). (4) The committee of creditors may approve a resolution plan by a vote of not less than sixty six percent of voting share of the financial creditors. (5) The resolution applicant may attend the meeting of the committee of creditors in which the resolution plan of the applicant is considered: Provided that the resolution applicant shall not have a right to vote at the meeting of the committee of creditors unless such resolution applicant is also a financial creditor. (6) The resolution professional shall submit the resolution plan as approved by the committee of creditors to the Adjudicating Authority" 15. Section 31 of the Code provides as below: "(1) If the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requirements as referred to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connection with or in the resolution plan is true and correct and discovery of false information and record at any time will render the applicant ineligible to continue in the corporate insolvency resolution process, forfeit any refundable deposit, and attract penal action under the Code. (1A) A resolution plan which does not comply with the provisions of sub-regulation (1) shall be rejected. (2) [The resolution professional shall submit to the committee all resolution plans which comply with the requirements of the Code and regulations made thereunder along with the details of following transactions, if any, observed, found or determined by him:- (a) preferential transactions under section 43; (b) undervalued transactions under section 45; (c) extortionate credit transactions under section 50; and (d) fraudulent transactions under section 66, (3) The committee shall evaluate the resolution plans received under sub-regulation (1) strictly as per the evaluation matrix to identify the best resolution plan and may approve it with such modifications as it deems fit: Provided that the committee shall record the reasons for approving or rejecting a resolution plan.] (4) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the appellate authority (NCLAT), to reverse the "commercial decision" of the CoC much less of the dissenting financial creditors for not supporting the proposed resolution plan. Whereas, from the legislative history there is contra indication that the commercial or business decisions of the financial creditors are not open to any judicial review by the adjudicating authority or the appellate authority." 19. On perusal of the resolution plan, this Bench be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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