TMI Blog2022 (4) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... g waiver of charges etc. for a fresh connection from the Appellant-DVC will not be of concern to DVC. The Ld. Sr. Counsel for the Appellant has stated that the Successful Resolution Applicant is free to take a new connection from any other discom under WBERC Regulations - any provision in the approved resolution plan with relates to any waiver or relief with regard to a new connection from the Appellant/DVC need not be gone into and hence, insofar as the rights of the Successful Resolution Applicant about taking a new connection from the Appellant/DVC is concerned, it is not significant and the Successful Resolution Applicant is at liberty to take a new electricity connection from any discom under WBERC Regulations. In view of the fact that the resolution plan of the corporate debtor VSP Udyog has been affirmed by Hon ble Supreme Court in the matter of India Resurgence (Supra), the challenge to the approval of resolution plan cannot be sustained - appeal disposed off. - Company Appeal (AT) (Insolvency) No. 78 of 2021 - - - Dated:- 12-4-2022 - [Justice Ashok Bhushan] Chairperson, [Dr. Alok Srivastava] Member (Technical) And [Ms. Shreesha Merla] Member (Technical) For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oC ) and thereafter by the Adjudicating Authority vide the impugned order. 4. The Appellant/DVC has submitted in the Appeal that a total amount of ₹ 950.919 Crores was admitted as claims of operational creditors by the Resolution Professional (in short RP ) against which a meagre amount of ₹ 0.24 Crores was approved for payment to the operational creditors in the approved resolution plan and the Appellant/DVC received an amount of ₹ 1,42,195/- against an admitted claim of ₹ 56.34 Crores. 5. The Appellant has assailed the approval of the resolution plan on the ground that it is based on the disparity in treatment accorded to operational creditors and financial creditors without assigning any concrete reason and the treatment so meted out is arbitrary and done to benefit the financial creditors at the cost of operational creditors. Furthermore, the Adjudicating Authority, while approving the resolution plan, has to be satisfied that the resolution plan as approved by the CoC meets the requirement as laid down in Section 30(2) of the IBC and this satisfaction of the Adjudicating Authority has to be based upon a detailed examination of the terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive Date. Similarly, paragraph 12.1.40 which contains direction for giving fresh power connection to the Successful Resolution Applicant by DVC and Durgapur Projects Limited is also not legally valid as such a direction cannot be given in the approved resolution plan under provisions of IBC as a new connection can only be given under WBERC Regulations formulated under the Electricity Act. In the same way, the provision made in paragraph 12.1.41 that directs restoration of all essential services to the SRA after the approval of resolution plan without any act/deed of the on the part of SRA is also not in consonance with legal provisions under which such supplies are provided. Her argument is that such blanket renewals and reconnection/restoration are not legally tenable and cannot be given through the resolution plan. 9. The Ld. Sr. Counsel for the Appellant has cited the judgment of Hon ble Supreme Court in the matter of Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta and Others, [(2020) 8 SCC 531] Paragraph 64 to argue that the feasibility and viability of the resolution plan is dependent on the manner of distribution of funds between various class o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Debtor in this case is ₹ 50.29 Crores and therefore, payments in the resolution plan to various classes of creditors is in accordance with this liquidation value. 13. In rejoinder, the Ld. Sr. Counsel for the Appellant has pointed out that the compliance of the resolution plan in accordance with Section 30(2)(e) has not been considered in the judgment of NCLAT in the matter of Damodar Valley Corporation (Supra) hence, the compliance of the resolution plan to all the extant laws is an issue relevant in the present case. He has also maintained that the resolution plan cannot direct DVC to provide a fresh connection which has to be done under WBERC Regulations. 14. We note that the resolution plan presented by the resolution applicant Amit Metaliks in relation to the corporate debtor VSP Udyog was assailed before NCLAT and thereafter before Hon ble Supreme Court, which was found compliant of the provisions under IBC, and the Hon ble Supreme Court vide its judgment dated 13.05.2021 in the matter of India Resurgence ARC Private Limited (Supra) held that the business decision taken in exercise of the commercial wisdom of Committee of Creditors cannot be interfered with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal against an order approving a resolution plan, namely, if the plan is in contravention of the provisions of any law for the time being in force; or there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resolution period; or the debts owed to the operational creditors have not been provided for; or the insolvency resolution process costs have not been provided for repayment in priority; or the resolution plan does not comply with any other criteria specified by the Board. 77.3. The material propositions laid down in Essar Steel (supra) on the extent of judicial review are that the Adjudicating Authority would see if CoC has taken into account the fact that the corporate debtor needs to keep going as a going concern during the insolvency resolution process; that it needs to maximise the value of its assets; and that the interests of all stakeholders including operational creditors have been taken care of. And, if the Adjudicating Authority would find on a given set of facts that the requisite parameters have not been kept in view, it may send the resolution plan back to the Committee of Creditors f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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