TMI Blog2022 (7) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... nities to do so, it is opined that such decision is within the ambit of commercial wisdom of the CoC. The statutory scheme given in the IBC regarding the time period of CIRP in section 12 of IBC stipulates that a total of 330 days could be spent in obtaining prospective resolution plan. In the present case, approximately 559 days are over since the initiation of CIRP till the date of Impugned Order and enough opportunities have already been given to the prospective resolution applicant to provide resolution plan without success - the Adjudicating Authority has not erred in passing the Impugned Order, and while passing the order it has considered the views of the CoC as well as the lapse of stipulated time period of more than 330 days in the CIRP. Appeal dismissed. - Company Appeal (AT) (Ins.) No. 480 of 2022 - - - Dated:- 27-7-2022 - [Justice Rakesh Kumar Jain] Member (Judicial) , [Mr. Kanthi Narahari] Member (Technical) And [Dr. Alok Srivastava] Member (Technical) For the Appellant : Mr. Akshat Agrawal, Advocate. For the Respondents : Mr. Gautam Mittal Mr. Manish Jain, for R-1/RP, Mr. Prakash Shinde, Mr. Nishit Dhruva, Ms. Meghna Arvind, Ms. Aalisha Sharma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e preferred IA No. 192/2021 before the Adjudicating Authority praying for direction to the CoC for consideration of his latest revised resolution plan. This application IA no. 192/2021 was rejected by the Adjudicating Authority vide order dated 9.12.2021 on the ground that the CoC had already considered a resolution plan of the Appellant and CIRP period of 330 days is over and application for liquidation is already filed before the Adjudicating Authority. Therefore, the Adjudicating Authority declined to direct the CoC to further consider any resolution plan. 4. We heard the arguments put forth by the Learned Counsels of all the parties and perused the record. 5. The Learned Senior Counsel for Appellant has argued that the Appellant is the only resolution appellant left whose resolution plan was under consideration. He has claimed that after the direction of the Adjudicating Authority in IA No. 133(MP)/2021 delivered vide order dated 6.8.2021, the Appellant submitted a resolution plan, which was considered by the CoC in its meetings held on 2.8.2021 and 16.8.2021 wherein the Appellant was asked to revise his resolution plan. He has claimed that Appellant re-submitted a revise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h meeting on 24.4.2021 through e-voting. He has further argued that in accordance with the directions given by the Adjudicating Authority in IA No. 130 of 2021 vide order dated 6.8.2021, the revised resolution plan submitted on 9.8.2021 was discussed in detail by the CoC on 16.8.2021 and the Appellant was requested to submit a revised plan incorporating the suggestions given by the CoC members. This revised plan was re-submitted on 17.8.2021, which was considered by the CoC and in the e-voting, which took place between 17.8.2021 and 16.9.2021, this revised plan was rejected by 100% vote share. He has claimed that since the revised resolution plan was not approved by the CoC, the application for liquidation was considered by the CoC in the same meeting and was approved, and consequently RP filed application for liquidation before the Adjudicating Authority. 8. He has further argued that the joint lenders in the NPA account of M/s. Sanwaria Consumer Limited discussed the issue of obtaining the improved resolution plan in its meetings on 27.10.2021 and 26.11.2021 when the majority of lenders strongly presented the view that despite repeated opportunities the prospective resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttached at pg. 53 of the affidavit-in-reply of the CoC, whereby it is mentioned that the resolution is not approved by the CoC members. More specifically, the resolution for approval of the plan submitted by Appellant Shrinathji Trading Company is disapproved by the CoC members i.e. 100% (Resolution 1B). Subsequently, in the same meeting of CoC, the issue regarding initiation of liquidation of corporate debtor was also put to vote (after the CoC had disapproved all the resolution plans under consideration), whereby the resolution for authorizing the RP, to submit liquidation application before the Adjudicating Authority, was approved by vote share of 100% (refer page 55 of the affidavit-in-reply of the CoC). 11. Thereafter, upon receipt of the order of the Adjudicating Authority in IA/133/MP/2021 dated 6.8.2021 (attached at pp.65-66 of the appeal paperbook), the Adjudicating Authority directed as follows:- Let the plan be submitted to the RP within three days. The Learned Counsel for the RP states that the CoC is going to held the meeting tomorrow. The CoC to defer its meeting to three days. Let meeting be held on 13th August, 2021 or any suitable date nearby and let the bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk of India s representative, which is recorded in the minutes of joint lenders meeting held on 26.11.2021. The representative of IDBI also questioned why the present meeting is called and wanted the Hon ble NCLT to decide the matter. Thereafter, the CoC authorized the leader of lenders to submit the common view before the NCLT that the CoC is of the final view that no further opportunity should be given to prospective resolution applicant (PRA), as he has failed to provide desired comforts to the lenders for the acceptable terms in resolution plan, which could be successfully implemented. 15. We note that the Impugned Order dated 9.12.2021 rejected IA No. 192/2021 on the basis that the plan submitted by the Appellant/Applicant had been considered by the CoC and that the CIRP period of 330 days is already over and application for liquidation is filed before the Adjudicating Authority. 16. Looking at the total circumstances of the case, including the views of joint lenders and also at the fact that the CoC did not wish to consider any further revised resolution plan as he had failed to provide required comfort to the lender banks by submitting/revising the resolution plan desp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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