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TMI Blog2019 (3) TMI 1844X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the Resolution Professional about CP No. 1137/2017 under sections 60(5) and 30(6) of IBC, 2016. The said application was disposed of by the common order of this Bench dated 31-7-2018, whereby this Tribunal dismissed MA 491/2018 and imposed a cost of Rs. 50,000/- payable by the Resolution professional to NCLT. This order was challenged before the Hon'ble NCLAT and Hon'ble NCLAT has passed an order in Shard Sanghi v. Ms. Vandana Garg [2019] 153 SCL 87. The relevant portion of the order is given below for ready reference: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by Hon'ble NCLAT. 6. It is pertinent to mention that Hon'ble Supreme Court in case of K. Sashidhar v. Indian Overseas Bank has held that : "38. Indubitably, the inquiry in such an appeal would be limited to the power exercisable by the resolution professional under section 30(2) of the I&B Code or, at best, by the adjudicating authority (NCLT) under section 31(2) read with 31(1) of the I&B Code. No other inquiry would be permissible. Further, the jurisdiction bestowed upon the appellate authority (NCLAT) is also expressly circumscribed. It can examine the challenge only in relation to the grounds specified in section 61(3) of the I&B Code, which is limited to matters "other than" enquiry into the autonomy or com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jure, entails in its deemed rejection. 40. Notably, the threshold of voting share of the dissenting financial creditors for rejecting the resolution plan is way below the simple majority mark, namely not less than 25% (and even after amendment w.e.f. 6-6-2018, 44%). Thus, the scrutiny of the resolution plan is required to pass through the litmus test of not less than requisite (75% or 66% as maybe applicable) of voting share - a strict regime. That means the resolution plan must appear, to not less than requisite voting share of the financial creditors, to be an overall credible plan, capable of achieving timelines specified in the Code generally, assuring successful revival of the corporate debtor and disavowing endless speculation. 41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble NCLAT has further directed the Adjudicating Authority to approve the plan in terms of section 31 of IBC with modification that the plan is to be implemented within the period of 12 years as offered by the successful resolution applicant. 10. In this case the resolution plan has been approved by the Committee of Creditors with requisite majority and Hon'ble NCLAT has already held that the resolution plan is in conformity with section 30(2) of the I & B Code 2016 and has given the specific direction to approve the plan in terms of section 31 of IBC with modification that the plan is to be implemented within the period of 12 years as offered by the successful resolution applicant. It is pertinent to mention that given the law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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