TMI Blog2022 (4) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... ked to fill up Form C on 28.02.2020 and he filed the same on the same day. In spite of that the Resolution Professional (Respondent No. 1) has not considered their claim as Financial Creditor. The Courts of India have time and again held that the commercial wisdom of the CoC is paramount, and that the CoC in its commercial wisdom is empowered to take decision which is non-justiciable. It is now well settled in law as held by Hon ble Supreme Court in JAYPEE KENSINGTON BOULEVARD APARTMENTS WELFARE ASSOCIATION ORS. VERSUS NBCC (INDIA) LTD. ORS. [ 2021 (3) TMI 1143 - SUPREME COURT] has noted that whether a resolution plan and its propositions are leading to maximization of value of assets or not, would be matter of enquiry and assessment of the Committee of Creditors alone. Consolidated reading of all provisions and objects of the Code apart from analysis/observations stated supra, it reveals that the purpose of CIRP is to provide life to organization and not to provide death knell. Death Knell/liquidation should be the last resort. Hence no need to touch the Resolution Plan so implemented by Successful Resolution Applicant (viz. M/s Bharat Forge Limited). Prima facie, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page -86 of the Appeal Paper Book (Annexure- A7) as follows: . With reference to the above subject matter we would like to inform you that we have verified the documents and the claim submitted by with the books of M/s Sanghvi Forging Engineering Limited. On verification it has been found that the Form B submitted by you is incorrect form, as you are not an Operational Creditor of the Corporate Debtor as you have given Unsecured loan. Please submit the Form C duly notarized and stamped with supporting invoices and ledgers of revised amount of Claim, if any as on 30.08.2019 i.e. date of CIRP at the office of Interim Resolution Professional i.e. D-501, Ganesh Meridian Opp. High Court, S.G. Road, Ahmedabad- 380 060. (Copy of Form C attached for your reference). . B) Based on the directions of IRP on the same day i.e., 28.02.2020, the Appellants filed their claims in form C as Unsecured Financial Creditor as advised by IRP. The Appellants have not received any communication from the IRP since 28.02.200 with regard to the admission/rejection of the claim and the Resolution Plan was approved without their participation as Financial Creditor in Committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2021 Page. 297 of Appeal Actions after expiry of CIR Period (01.12.2021) by virtue of order dated 16.03.2021* in IA 71/2021 6. 13 th CoC meeting 01.02.21 (adjourned to 02.02.2021) Pg. 136-147 (Reply of RA R2) 7. E-Voting window 03.02.2021- 12.02.2021 Pg. 145-147 (Reply of R! R2) 8. I.A. No. 130/2021 by filed Appellant- for implementation of OTS by Appellant/stay on e- voting for resolution plan Filed on 09.02.2021 Pg. 302-310 Appeal of 9. IA No. 71/2020 listed 03.02.2021 adjourned 22.02.2021 on to 03.02.2021 Pg. 297 Appeal of 10. IA No. 143/2021 for approval of Resolution Plan of R-4 filed on 18.02.2021 Listed on 22.02.2021 and adjourned to 08.03.2021 Pg. 311 Appeal of 11. IA No. 71 dismissed* ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as taken the decision for extension of time. It is further submitted that there is every likelihood that the resolution plan may be approved by the CoC and thereby the Company can be saved from liquidation. Looking to the facts and circumstances of the case. The Applicant is directed to file the resolution plan after making all deliberation on or before 22.02.2021, and at that point of time, this application will be considered. List the matter on 22.02.2021. b. Since CIRP expired on 01.02.2021, the Resolution Professional and CoC became functus officio and they cannot use their powers in terms of the provision of Section 12 of the Code and only option available was Section 33 of the Code. CoC could not have convened 13th CoC meeting on 02.02.2021 when its CIRP expired on 01.02.2021 and the resolutions passed therein are non-est and void. It is unfortunate to point out that the CoC has voted during given window of 3.12.2021 12.02.2021 as per the Written Submission of the Appellant in this Appeal appearing at pages 144 147 of the Reply of Respondent No. 1 and Respondent No. 2. Resolution Professional has committed professional error by filing I.A. No. 143 of 202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also submitted that interference of this Tribunal at this belated stage jeopardized already implemented plan. Whatever delay is there, it has resulted from frivolous litigations. The Appellants are not entitled to make allegation as to the viability of the credential of the Plan approved by the CoC with 100% majority and challenge the commercial wisdom of the CoC. CoC has complied with the requirements of Section 30(2) of the Code and Regulation 38 of IBBI CIRP Regulation. The learned Counsel also submitted that once the CoC has approved the Resolution Plan in its commercial wisdom, then such decision is unjustifiable and finally pleaded for disposal of the Application. SUBMISSION OF RESPONDENT NOS. 1 2 IN APPEAL NO. 424/2021: 4. The learned Counsel for the Respondent Nos. 2 3 has submitted that a similar Appeal has been filed by another shareholder of the Corporate Debtor against the same Impugned Order (Ronak Kundanlal Bhagat Ors. Vs. Parthiv Parikh and Ors.) was dismissed without issuing Notice in Company Appeal (AT)(Ins) No. 364 of 2021. They have also alleged that the approval of the Resolution Plan has violated IBBI CIRP Regulation and the Appeal is severely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnected Matters ( Ebix ) (para 249). The Hon ble Court has categorically held that such acts cause commercial uncertainty, degradation in the value of the Corporate Debtor and makes the insolvency process inefficient and expensive. d. The appellant has sat on the fence for an extended period of time, is therefore now estopped from raising any objections at this highly advanced stage when the Plan has been successfully implemented after it was approved by the Tribunal vide the Impugned Order. 5. The Appellants have failed to effectively and timely implementation of the OTS proposal. The Appellants cannot derive a right to interference its OTS and thereby oppose CIRP: a. The Appellant is not entitled to make allegations as to the viability and credentials of the Plan approved by the CoC with 100% majority which has further been approved by NCLT and challenge the commercial wisdom of the CoC.. The Appellant is also not entitled to seek a direction as to the implementation of the OTS which has been rejected by the CoC in the exercise of its commercial wisdom and thereafter, subsequently rejected by the NCLT. Furthermore, there is no provision in the Code or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moter s settlement proposal, observing that there would be no end if such reversals are allowed. e. Further, this Hon ble Tribunal in its judgment dated November 10,2021 in the matter Ananta Charan Nayak vs. State Bank of India Ors. Company Appeal (AT)(Ins) No. 870 of 2021 (Para-9) had held that The acceptance of the settlement proposal by the financial creditor is a matter entirely in the ambit of the financial creditor (SBI) and we do not think that the proceedings before the Adjudicating Authority should have been held up and delay, waiting for a response by the State Bank of India. IBC does not provide for keeping the proceedings in abeyance and the application for admission has to be decided in a stipulated timeframe . g. Further, it is a settled principle that even if an improved offer is received subsequently in a bidding process, no consideration ought to be given to such proposals- Navalkha and Sons v. Sri Ramanya Das and Ors. [AIR 1970 SC 2037 (Para-6); Vedica Procon Pvt. Ltd vs. Balleshwar Greens Private Ltd. [(2015) 10 SCC 94 (Para 53)]. SUBMISSION OF RESPONDENT NO. 3 (IN APPEAL No. 424/2021) RESPONDENT NO. 1 (IN APPEAL NO. 352/2021/RESOLUTION ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modified the settlement terms and undertook to comply with the same. However, the Appellant miserably failed in complying with the terms of OTS proposal. Under the circumstances, vide order dated 02.12.2019, this Tribunal granted an opportunity to the Appellant to settle its dues through the OTS on or before 31.12.2019. In the said order, it was also made clear that in case where Appellant Suspended Management fails to honour terms of OTS proposal then CIRP will be proceeded in accordance with law. It was submitted that despite the order of this Tribunal, Appellant Suspended Management did not comply with the terms of OTS. Therefore, the Respondent No. 1 and No. 2, vide e-mail dated 02.03.2020, herein informed Appellant suspended management that OTS proposal has technically failed. But considering discussions with investor and the ongoing pandemic, Appellant suspended Management was granted repeated opportunity to comply with the OTS terms. It was further submitted that even after that, Appellant Suspended Management miserably failed to deposit the amount in accordance with OTS proposal. It was further submitted that Appellant- Suspended management was not granted any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank of Baroda 67,12,65,071/- 58.41 He has also submitted that the said resolution plan is approved and to the best of my Respondent No. 3/Resolution Professional plan is successfully implemented and payments to be made under the plan are duly made. Under the circumstances, Appellant Suspended Management cannot insist upon acceptance of OTS proposal at this stage more particularly in view of the ratio laid down in K. Sashidhar vs. Indian Overseas Bank, reported in (2019) 12 SCC 150. He has also submitted that the representation of the Operational Creditor is not mandatory under Section 24 of the Code and there is no obligation to approve the Resolution Plan higher than liquidation value. It was also stated that by Respondent No. 3/Resolution Professional that he had filed the Resolution Plan before the Adjudicating Authority well in time. Hence the Application is to be dismissed. ANALYSIS AND OBSERVATIONS: 7. We have carefully gone through the submissions made by Appellant/ Respondent/Resolution Professional/Successful Resolution Applicant and the input available on record and have following obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xty-six] per cent. of the voting shares. (3) On receipt of an application under sub-section (2), if the Adjudicating Authority is satisfied that the subject matter of the case is such that corporate insolvency resolution process cannot be completed within one hundred and eighty days, it may by order extend the duration of such process beyond one hundred and eighty days by such further period as it thinks fit, but not exceeding ninety days: Provided that any extension of the period of corporate insolvency resolution process under this section shall not be granted more than once. 2[Provided further that the corporate insolvency resolution process shall mandatorily be completed within a period of three hundred and thirty days from the insolvency commencement date, including any extension of the period of corporate insolvency resolution process granted under this section and the time taken in legal proceedings in relation to such resolution process of the corporate debtor: Provided also that where the insolvency resolution process of a corporate debtor is pending and has not been completed within the period referred to in the second proviso, such resolution proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een noted by the Hon ble Supreme Court in subsequent judgments including Maharashtra Seamless Limited v. Padmanabhan Venkatesh Others [Civil Appeal No. 4242 of 2019 (Para 28)]. ii. Further, the Hon ble Supreme Court made similar observations in Jaypee Kensington Boulevard vs. NBCC (India) Ltd Ors., [Civil Appeal No. 3395 of 2020]. Recently, the Hon ble Supreme Court in Kalpraj Dharamshi v. Kotak Investment Advisories Ltd. , [Civil Appeal Nos. 2943-2944 of 2021 (paras 149 154-155] noted the following in respect of commercial wisdom of the CoC: 154. This Court observed that the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis 155. It would thus be clear, that the legislative scheme, as interpreted by various decisions of this Court, is unambiguous. The Commercial wisdom of CoC is not to be interfered with, excepting the limited scope as provided under Sections 30 and 31 of the I B Code. iii. In fact, reference may also be made to this Tribunal s recent decision in the matter of Union Bank of India on behalf of the Committee of Creditors of Dewan Housing Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration in Section 30(2) read with Section 31 and Section 61(3) of the Code. For issue of convenience, the said provisions are enumerated hereunder: SECTION 30(2) OF IBC: The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan- (a) provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the 2[payment] of other debts of the corporate debtor; (b) provides for the payment of debts of operational creditors in such manner as may be specified by the Board which shall not be less than- (i) the amount to be paid to such creditors in the event of a liquidation of the corporate debtor under section 53; or (ii) the amount that would have been paid to such creditors, if the amount to be distributed under the resolution plan had been distributed in accordance with the order of priority in sub-section (1) of section 53, whichever is higher, and provides for the payment of debts of financial creditors, who do not vote in favour of the resolution plan, in such manner as may be specified by the Board, which shall not be less than the amount to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d,] guarantors and other stakeholders involved in the resolution plan. [Provided that the Adjudicating Authority shall, before passing an order for approval of resolution plan under this sub-section, satisfy that the resolution plan has provisions for its effective implementation.] (2) Where the Adjudicating Authority is satisfied that the resolution plan does not confirm to the requirements referred to in sub-section (1), it may, by an order, reject the resolution plan. (3) After the order of approval under sub-section (1),- (a) the moratorium order passed by the Adjudicating Authority under section 14 shall cease to have effect; and (b) the resolution professional 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. 2[(4) The resolution applicant shall, pursuant to the resolution plan approved under sub-section (1), obtain the necessary approval required under any law for the time being in force within a period of one year from the date of approval of the resolution plan by the Adjudicating Authority under sub-section (1) or within s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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