TMI Blog2022 (2) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... n 10% of the debt, are also entitled for notice of meeting of Committee of Creditors. Thus, the category of creditors including the Members of the suspended Board of Directors or the partners of the corporate persons, who are entitled to participate in the meeting of the Committee of Creditors are entitled to receive copies of all documents. Hon ble Apex Court had occasion to consider these provisions of Code and the Regulations in context of right to have access to Resolution Plan by erstwhile/ suspended Board of Directors of the Corporate Debtor in Vijay Kumar Jain vs. Standard Chartered Bank and Ors. [ 2019 (2) TMI 97 - SUPREME COURT] - The Hon ble Supreme Court held that Members of suspended Board are entitled to participate in the meeting of Committee of Creditors. They are also entitled to be given a copy of Resolution Plan before such meetings are held. When the right to Appeal on the ground enumerated in sub-section (3) of Section 61 is provided, unless the Appellant is aware of the contents of the Resolution Plan, how he will be able to satisfy the Appellate Court that the grounds enumerated in sub-section (3) of Section 61 are made out in reference to approval of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an] Chairperson And [Dr. Ashok Kumar Mishra] Member (Technical) For the Appellant : Mr. Nikhil Nayyar, Sr. Advocate with Ms. S. Manjula Devi, Advocate Dr. KS Ravichandran (CS) For the Respondents : Mr. Arun Kathpalia, Sr. Advocate with Mr. Malhar Zatakia, Mr. Nishant Upadhyay, Mr. Madhur Arora, Mr. Dhiraj Kumar Totala and Ms. Tanya Chib, Advocates (R-1, 3)Ms. Isha Malik, Ms. Niharika Shukla and Mr. Raunak Dhillon, Advocates (R-2) Ms. Pooja Mahajan, Mr. Aashish Vats, Mr. Arveera Sharma, and Ms. Mahima Singh, Advocates (R-4) JUDGMENT ASHOK BHUSHAN, J. We have heard learned Counsel for the parties on 10.01.2022 on the limited question whether the Appellant(s)/ Applicant is entitled to be given a copy of Resolution Plan or any part of the Resolution Plan in the Appeal. In the Application for interim relief, the Appellant had prayed for a direction to Respondent No.3 - Resolution Professional to produce records that is Resolution Plan and its annexures with full set of documents relating to Corporate Insolvency Resolution Process (CIRP) of the Corporate Debtor. 2. We have heard learned Senior Counsel for the Appellant Shri Nikhil Nayyar, Shri Arun Kathpalia, lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a confidential document and contains confidential information about the Corporate Debtor and the Successful Resolution Applicant, which are not available in the public domain. No information or material of the Resolution Plan can be disclosed in part or in whole to any person without the prior consent of the Resolution Applicant. Further, the requirement of law is to share copy of the Resolution Plan only with the Members and participants in the Committee of Creditors (CoC). The Appellant Association being not entitled to participate in the CoC cannot claim copy of Resolution Plan. She further submits that various other workmen/ employees associations have filed applications before Adjudicating Authority praying for copy of the Resolution Plan, which was rejected by Adjudicating Authority on 22nd February, 2021. It is only the participants of the CoC meeting, who are entitled to receive all agenda documents etc. and apart from the participants, no one is entitled to receive Resolution Plan. Referring to Regulation 39(5A) of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulation, 2016 (hereinafter referred to as Process Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccessful Resolution Applicant is a strictly confidential document and any disclosure of the same to any person including the Operational Creditors of the Corporate Debtor would lead the passing of such confidential data to the competitors of the Corporate Debtor and the Successful Resolution Applicant, which could be detrimental to the business and revival of the Corporate Debtor by the Successful Resolution Applicant. 7. Shri Arun Kathpalia, learned Senior Counsel appearing for Resolution Professional also supported the submissions of learned Counsel for the Successful Resolution Applicant. He further submits that details regarding claim allowed to the workmen and employees have already been communicated to the claimants and if directed, Resolution Professional shall provide relevant part of the Resolution Plan dealing the claim of the workmen and employees only. 8. We have considered the submissions of the learned Counsel for the parties. The learned Counsel for the parties also referred and relied on judgments of the Hon ble Supreme Court and this Tribunal, which we shall consider while considering the detailed submissions. 9. We have heard learned Counsel for the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant to make the resolution plan for the corporate debtor, which shall include the financial position of the corporate debtor, all information related to disputes by or against the corporate debtor and any other matter pertaining to the corporate debtor as may be specified. 12. Section 29, sub-section 2 sub-clause (a) provides that Resolution Applicant is to comply with provisions of law for the time being in force relating to confidentiality and insider trading and further the Resolution Applicant not to share relevant information with third parties unless clauses (a) and (b) of sub-section (2) of Section 29 are complied with. 13. After Resolution Plan is submitted the same is to be scrutinized by Resolution Professional and Resolution Professional is to examine each Resolution Plan and when Resolution Professional is satisfied that it complies with the requirements as laid down in Section 30, sub-section (2), he shall present it to the Committee of Creditors for approval. Sub-section (6) of Section 30 further provides that Resolution Professional shall submit the Resolution Plan as approved by the Committee of Creditors to the Adjudicating Authority. Section 31, sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in CIRP. As per Section 24 of the Code, Operational Creditors or their representatives, if the amount of their aggregate dues is not less than 10% of the debt, are also entitled for notice of meeting of Committee of Creditors. Thus, the category of creditors including the Members of the suspended Board of Directors or the partners of the corporate persons, who are entitled to participate in the meeting of the Committee of Creditors are entitled to receive copies of all documents. 18. Hon ble Apex Court had occasion to consider these provisions of Code and the Regulations in context of right to have access to Resolution Plan by erstwhile/ suspended Board of Directors of the Corporate Debtor in (2019) 20 SCC 455 Vijay Kumar Jain vs. Standard Chartered Bank and Ors. The Hon ble Supreme Court held that Members of suspended Board are entitled to participate in the meeting of Committee of Creditors. They are also entitled to be given a copy of Resolution Plan before such meetings are held. In paragraph 16 of the judgment, following has been laid down: 16. This statutory scheme, therefore, makes it clear that though the erstwhile Board of Directors are not members of the Commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in deciding whether he is guilty of Misfeasance or Fraud or any other Serious Irregularity in the preparation of Resolution Plan . As a matter of fact, the Resolution Plan is confidential in nature . No wonder, the Resolution Professional is to act in an expeditious fashion. In short, an Insolvency Professional is to perform his duties by facing challenges that he come across during CIRP. 20. The above proposition laid down by this Tribunal clearly states that Resolution Plan furnished by one or other Resolution Applicant is a confidential one and cannot be disclosed to any competing Resolution Applicant. The Resolution Plan has been held to be confidential in nature. The above observations were in reference to CIRP proceeding and this Tribunal in the above case had no occasion to consider the situation where Appellant who is aggrieved by the order of the Adjudicating Authority of approving the Resolution Plan is claiming the copy of the Resolution Plan. The judgment of the Hon ble Supreme Court in Vijay Kumar Jain (supra) as noticed above was also the judgment dealing with entitlement of Resolution Plan during the CIRP proceeding. The question which has arisen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s support by provision of Section 31, sub-section (3) of IB Code, which provides that Resolution Professional after approval of Resolution Plan shall forward all records relating to the conduct of the corporate insolvency resolution process and the resolution plan to the Board to be recorded on its database. 24. Learned Counsel for Respondent No.4 in the context of Section 31, sub-section (3) submits that records are forwarded to the Board not for publication and limited purpose of the Board is to publish such information, data, research studies and other information as may be specified by Regulations. Reference has been made to Section 196(1)(i) of the IB Code, which is to the following effect: 196(1)(i) publish such information, data, research studies and other information as may be specified by regulations; 25. Section 196, sub-section (1) deals with Powers and functions of the Board . Sub-clause (h) of sub-section (1) empowers the Board to call for any information and records from the insolvency professional agencies, insolvency professionals and information utilities . The power of the Board is thus also to call for any record from the Insolvency Professional, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to approval of the Resolution Plan. The provision of Section 61, sub-section (3) reaffirms our view that after approval of the Resolution Plan, Resolution Plan does not remain a confidential document, so as to deny its perusal to a claimant, who is aggrieved by the Plan and has come up on the Appeal. We, thus, are of the view that Resolution Plan after its approval by the Adjudicating Authority is no more a confidential document, so as to deny access to even a claimant. It is true that the Resolution Plan even though it is not a confidential document after its approval, cannot be made available to each and to anyone who has no genuine claim or interest in the process. On various grounds the access to Resolution Plan even if it is not a confidential document, after approval can be denied in proper and appropriate cases. 29. Now coming back to the facts of the present case, as submitted by the learned Counsel for the Respondent No.4 that there are more than 20,000 Operational Creditors apart from Financial Creditors and other stakeholders. We have noticed above that before the Adjudicating Authority, Applications were filed by several Applicants including National Aviators Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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