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TMI Blog2021 (5) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... gars Ltd. (prior to suspension of the Board upon initiation of CIRP) and that the 'Corporate Debtor'/Thiru Arooran Sugars Ltd. was admitted into CIRP as per Order of the 'Adjudicating Authority' in IBA No.243/2019 and that the Respondent was appointed as an 'Interim Resolution Professional' and later confirmed as the 'Resolution Professional' by the 'Committee of Creditors'. 2. The Learned Counsel for the Appellant submits that the present Appeal is preferred by the 'Appellant' being aggrieved against the Order dated 08.04.2021 passed by the 'Adjudicating Authority' (National Company Law Tribunal, Division Bench-II, Chennai Bench) in I.A.No.1186 of 2020 in IBA/243/2019 ('Liquidation Application'- filed by the Respondent /Applicant/Resoluti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of which an upfront deposit of Rs. 5.00 Crores was made in a 'No Lien Account' with State Bank of India as early as in December 2019, of which Rs. 2.50 Crores was appropriated by the State Bank of India towards 'One Time Settlement' of dues in Terra Energy Ltd. and later revised 'One Time Settlement' offer was furnished on 16.03.2020 by the 'Promoters' of the 'Corporate Debtor'. 5. The Learned Counsel for the Appellant takes a stand that on 27.09.2020, the 'Promoters' submitted a fresh offer for Compromise Settlement of dues to all Creditors, on a reduced scale, and without Provision for any additional upfront payment until after approval of the 'Adjudicating Authority' which facts were not stated before it. 6. It is the version of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equent to the 'Committee of Creditors' rejection of the 'Resolution Plan' submitted by the 'Sole Resolution Appellant', the 'Resolution Professional' based on the 'Committee of Creditors' decision at its meeting on 09.12.2020 filed an Application for approval of Liquidation of the 'Corporate Debtor' viz. 'TASL' and the said Application is pending before the 'Adjudicating Authority'. 9. The real grievance of the 'Appellant' is that the 'Adjudicating Authority' had failed to consider the efforts at resolving the debt of the 'Corporate Debtor' in the teeth of the Insolvency and Bankruptcy Code, which provides for 'Liquidation' in the event of failure of 'CIRP' or non-receipt of any 'Resolution Plan' within the specified period. 10. The Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd submits that the said Proposal/Scheme is 100% settlement for the farmers and in fact, the 'Settlement Proposal' is in terms of the Reserve Bank of India guidelines and further that the 'Bankers' are bound by the RBI guidelines and the non-consideration of the 'Settlement Proposal' is a material irregularity from the point of view of the 'Appellant'. 14. The Learned Counsel for the 'Appellant' submits that unlike in the case of 'Liquidation', the Compromise Settlement (CS Offer) made by the 'Promoter' provides for payment of 100% of the admitted claims of Rs. 65.90 Crores to the farmers, besides payment of 15% Statutory interest per annum thereon, till date of payment, taking the total payment to Rs. 78.75 Crores as at the end of March 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 19. Before the 'Adjudicating Authority' the Respondent/Applicant/ (Resolution Professional of Thiru Arooran Sugars Ltd.) filed an IA/1186/IB/2020 in IBA/243/2019 [under Section 33(2) of the Insolvency and Bankruptcy Code, r/w Rule 11 and 32 of NCLT Rules, 2016] seeking an order of 'Liquidation of the Corporate Debtor' and it was informed that the 'Committee of Creditors' with 76.02% voting share, voted against the plan and as such, deemed to have voted for the 'Liquidation' of the 'Corporate Debtor' in terms of the 'Resolution' dated 30.11.2020. 20. In this connection, it is not out of place for this 'Tribunal' to make a pertinent mention that the Hon'ble Supreme Court in the Judgment dated 10.03.2021 in Kalpraj Dharamshi & Anr v Kotak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kotak Bank, which is a holding company of KIAl, having voting rights of 0.97%. We are of the considered view, that in view of the paramount importance given to the decision of CoC, which is to be taken on the basis of 'commercial wisdom'. NCLAT was not correct in law in interfering with the commercial decision taken by CoC bya thumping majority of 84.36%. 157. It is further to be noted, that after the resolution plan of Kalpraj was approved by NCLT on 28.11.2019, Kalpraj had begum implementing the resolution plan. NCLAT had heard the appeals on 27.02.2020 and reserved the same for orders. It is not in dispute, that there was no stay granted by NCLAT, while reserving the matters for orders. After a gap of five months and eight days, NCLAT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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