TMI Blog2022 (6) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... UPREME COURT ] and submissions made by RP, there are no merits in contentions of the Applicant in present. Application dismissed. - I.A. No. 1122/2022 in IB-717(ND)/2019 - - - Dated:- 13-5-2022 - Bachu Venkat Balaram Das, Member (J) And Narender Kumar Bhola, Member (T) For the Appellant : A. Anand For the Respondents : Varsha Banerjee, Adv., Dhir Dhir Associates ORDER Narender Kumar Bhola, Member (T) 1. The Applicant has filed the present application under section 60(5) seeking following reliefs: a. allow the present application; and b. Issue appropriate directions to the Committee of Creditors to re-consider the resolution plan submitted by the resolution applicant within the parameters of the provisions of the Code as required under regulation 39(3) of the CIRP Regulations, 2016; or c. In the alternative allow the Resolution Applicant to place a revised resolution plan in consultation with the Committee of Creditors for the resolution of the Corporate Debtor; d. During the pendency of the present application, grant ad-interim ex-parte stay on the FORM-G as published by the Respondent No. 1 on 23.02.2022 and directing the Resoluti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (Insolvency Resolution Process of Corporate Persons), Regulations, 2016 ('CIRP Regulations, 2016') is required to place the Resolution Plan which received the highest votes for re-voting. It is stated that from the publication of FORM G on the very next date of rejection of Resolution Plan of Applicant, it is evident that the Resolution Professional did not place the resolution plan which received the highest votes for re-voting in terms of Regulation 39 (3B) of the CIRP Regulations. Thus, Resolution Professional has failed to carry out the CIRP of Corporate Debtor in accordance with Regulation 39(3B) of CIRP Regulations. e. It is submitted that in terms of Regulation 36(A)(8) of CIRP Regulations, Resolution Professional was required to conduct due diligence, to satisfy that Applicant is eligible under Section 29(A) of the Code, in terms of Regulation 36(A)(9), and was empowered to seek clarification or additional information for the purpose of determining the eligibility of Applicant under Section 29(A) of Code. In terms of Regulation 36A (10), a provisional list of eligible Resolution Applicants is issued, and after considering objections, if any, received from Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in so far as they are financial debtors and not operational debtors, as has been pointed out hereinabove. So far as un-equals being treated as equals is concerned, home buyers/allottees can be assimilated with other individual financial creditors like debenture holders and fixed deposit holders, who have advanced certain amounts to the corporate debtor. For example, fixed deposit holders, though financial creditors, would be like real estate allottees in that they are unsecured creditors. Financial contracts in the case of these individuals need not involve large sums of money. Debenture holders and fixed deposit holders, unlike real estate holders, are involved in seeing that they recover the amounts that are lent and are thus not directly involved or interested in assessing the viability of the corporate debtors. Though not having the expertise or information to be in a position to evaluate feasibility and viability of resolution plans, such individuals, by virtue of being financial creditors, have a right to be on the Committee of Creditors to safeguard their interest. Also, the question that is to be asked when a debenture holder or fixed deposit holder prefers a Section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion as to whether a particular resolution plan is to be accepted or not is ultimately in the hands of the CoC, and even in such a decision-making process, a resolution plan cannot be taken as approved if the same is not approved by votes of at least 66% of the voting share of financial creditor. Thus, a resolution plan is approved only when collective commercial wisdom of the financial creditors, having at least 2/3rd majority of voting share in the CoC stands in its favour. Upon rejection of its resolution plan by the CoC by a vote of 87.45% of members, the Applicant has no locus to interject the ongoing resolution process in the Corporate Debtor herein and seek any indulgence for consideration of its resolution plan after having withdrawing its EMD and not participating in the fresh process. d. It is averred that the applicant is guilty of suppression of material facts. The applicant stated that there are no criminal proceedings pending or decreed against the applicant or promoters or the directors of the Resolution Applicants. However, after the respondent was brought to the notice of an action by SDMC (South Delhi Municipal Corporation) taken against the PG Advertising Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Hon'ble Apex Court in Arcelormittal India Private Limited v. Satish Kumar Gupta Ors. It was held that a resolution applicant has no vested right to have its resolution plan to be considered. f. In view of the above facts and circumstances, the RP prayed that the application may be dismissed. 4. We have heard at length the counsel for applicant and the Resolution Professional, perused the papers placed on record. In the present case it is undisputed fact the Resolution Plans submitted by both the PRAs have been rejected by CoC. It is well settled that evaluation and acceptance of a resolution plan is exclusive domain of CoC who is expected to apply best of its commercial wisdom and arrive at appropriate decision. Further, we in agreement with argument of RP that unsuccessful Resolution Applicant does not have any vested right for consideration or approval of its resolution plan. Accordingly, having regard to the judgment of Hon'ble Apex Court in Arcelormittal India Private Limited v. Satish Kumar Gupta Ors. and submissions made by RP, we do not find any merits in contentions of the Applicant in present 5. In view of the above the IA as filed by applican ..... X X X X Extracts X X X X X X X X Extracts X X X X
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