TMI Blog2022 (12) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... less than 75% of voting share on Financial Creditors, as per Section 30(4) of the I B Code, 2016. An Adjudicating Authority, can examine the reasoning of accepting or rejecting or any objection or suggestion and express his views in the matter. In tune with the ingredients of Section 31 of the I B Code, 2016, even an Adjudicating Authority, is satisfied with the Resolution Plan, being approved, by the Committee of Creditors, as per Section 30 (4) of the I B Code, that it fulfils the requirements, as visualised in Section 30 (2) of the Code, it shall by an Order approve the Resolution Plan, which shall be binding on the Corporate Debtor, Members, Employees, Creditors and other Stakeholders, involved in the Resolution Plan - If there is a Resolution Applicant, who can continue to run the Corporate Debtor, every endeavour is to be made, to try and see that is quite possible. There is no vested right in the Resolution Applicant, to get its / his Resolution Plan approved. Application of mind - HELD THAT:- A Judicial mind is to be applied by an Adjudicating Authority to the Resolution Plan submitted, and he may take a call for accepting or rejecting the Plan, ofcourse, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking note of the divergent contentions advanced on either side, entire gamut of the factual matrix and attendant facts and circumstances of the instant case, in an integral manner, comes to an inescapable conclusion that the Appellant has not made out a case in its favour and has not proved any of the grounds adumbrated in Section 61 (3) of the I B Code, 2016, for filing an Appeal, against theimpugned order, passed by the Adjudicating Authority, (National Company Law Tribunal, Kochi Bench, Kerala), in approving the Resolution Plan, under Section 31 of the I B Code, 2016. Appeal dismissed. - Company Appeal (AT) (CH) (Ins.) No. 179 of 2021 - - - Dated:- 5-12-2022 - [Justice M. Venugopal] Member (Judicial) And [Kanthi Narahari] Member (Technical) For the Appellant : Mr. M.G. Pranava Charan, Advocate For the Respondent Nos.1 3 : Mr. Bijoy P. Pulipra, Advocate For the Respondent No.2 : Mr. Pradeep Joy, Advocate JUDGMENT ( Virtual Mode ) Justice M. Venugopal , Member ( Judicial ) : Preface: The Appellant / Aswathi Agencies , has preferred the instant Comp. App (AT) (CH) (INS) No. 179 of 2021, as an Aggrieved Person , in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon ble Supreme Court in Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta Ors. 2019) SCC OnLine SC 1478 as under: 67. A successful Resolution Applicant cannot suddenly be faced with undecided claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution Applicant who successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution Applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution Applicant does on a fresh slate, as has been pointed out by us hereinabove. 13. In view of the above ruling of the Hon ble Apex Court, the Resolution Applicant takes over the Corporate Debtor with all its assets and liabilities as specified in the Resolution Plan subject to the orders passed herein. As already indicated the Resolution Plan has been approved by the CoC in its meeting held on 26.12.2020 with 100% voting ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submissions: 3. According to the Appellant (not a Party to the Proceedings, before the Adjudicating Authority in IA(IBC)/13/KOB/2021 in TIBA/11/KOB/2019, the impugned order , passed by the Adjudicating Authority, ( National Company Law Tribunal , Kochi Bench, Kerala), is against Facts and Law and also, without considering its contentions. 4. The Learned Counsel for the Appellant contends that the Resolution Professional , has committed a mistake in not taking into account the Exact Value of the Land and Properties of the Corporate Debtor . Moreover, the 1st Respondent / Resolution Professional , had purposefully, not disclosed the Valuation of the Itemwise Land Property , Hospital Equipments and Machineries and the Hospital Facilities Viz. the number of Operation Theatres, Intensive Care Units, Surgical Wards, etc., held by the Corporate Debtor . 5. As a matter of fact, no details were provided by the Resolution Professional , in regard to the Value of the Property , owned by the Corporate Debtor . 6. The Learned Counsel for the Appellant comes out with a plea that the Resolution Plan , given by Lissie , Medication Institution , is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trust Act, 1882, does not have any definition or specific set of Regulations, governing Charitable Trust. Besides this, the Regulations for Public Charitable Trusts are available under the Income Tax Act, 1961, only and in fact, the Resolution Applicant , is also registered under Section 12A (Exemptions from payment of Income Tax) of the Income Tax Act, 1995. 13. According to the Appellant, Section 2 (15) Charitable Purpose, includes relief of the poor, education, medical relief and the advancement of any other object or general public utility . 14. In this regard, the plea of the Appellant is that the act of acquiring the Corporate Debtor, in terms of the Resolution Plan , cannot be placed under any of the aforesaid parameters of the Charitable purpose and further that the Resolution Applicant , had not set forth any Charitable Activity / Deed , which will be undertaken, as part of the Resolution Plan . 15. It is the version of the Appellant, to avail the benefits, as per Section 12A of the Income Tax Act, a Charitable Trust , is required to fulfil the requirements of Section 11 of the Income Tax Act, which stipulates, the manner in which the investments of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d purposefully withheld the payments, due to it, in respect of the period from Jun 2017 to Apr 2019. Therefore, it is the plea of the Appellant that it is an Aggrieved Person , in respect of the impugned order dated 22.02.2021, modified and correct by an Order dated 16.03.2021. Hence, the instant Appeal preferred by the Appellant , is maintainable one . 21. While rounding up, the Learned Counsel for the Appellant, prays for setting aside the impugned order of the Adjudicating Authority ( National Company Law Tribunal , Kochi Bench) in approving the Resolution Plan dated 16.03.2021 , in the interest of justice. Appellant s Citation: 22. The Learned Counsel for the Appellant refers to the Decision of this Tribunal in Dr. Periasamy Palani Gounder v. Radhakrishnan Dharmajaran, RP of Appu Hotels Ltd. Ors. (decided on 17.02.2022, reported in MANU/NL/0118/2022), wherein, the Decision of Resolution Professional of Appu Hotels Limited, who had disqualified a Prospective Resolution Applicant Viz. Sri Balaji Vidyapeeth , a Charitable Trust , on the ground that the same is a Charitable Trust , and it cannot run a profit-making entity , was not interfered wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority , refers to specific provision, for the payment of debts of the Operational Creditors , the contra stance of the Appellant , is devoid of merits . 26. The Learned Counsel for the Respondent Nos.1 3 proceeds to point out that the 1st Respondent had invited the Expression of Interest from the Registered Valuers , to decide the Fair Value and the Liquidation Value of the Corporate Debtor , in accordance with Regulation 35 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 ( CIRP Regulations ). Moreover, from and out of the Expression of Interest , from the numerous Registered Valuers, the Committee of Creditors , had appointed two Groups of Registered Valuers , who fulfilled the criteria of independence of the Registered Valuers, in accordance with Regulation 27 of the CIRP Regulations . 27. It is the version of the Respondent Nos. 1 3, that the Valuation was made by the two Independent Registered Valuers , registered with the IBBI, under the Companies (Registered Valuers and Valuation) Rules, 2017, and the Fair Value and the Liquidation Value of the Corporate Debtor , was computed, in accordance with internat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssist the Committee of Creditors ( CoC ) to take decision on a Resolution Plan properly and there is no statutory mandate under the Code that the bid of the Resolution Applicant should match the Regulation 35 of the CIRP Regulations , relevant extracts of which is as follows: 26. No provision in the Code or Regulations has been brought to our notice under which the bid of any Resolution Applicant has to match liquidation value arrived at in the manner provided in Clause 35 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 27. It appears to us that the object behind prescribing such valuation process is to assist the CoC to take decision on a resolution plan properly. Once, a resolution plan is approved by the CoC, the statutory mandate on the Adjudicating Authority under Section 31(1) of the Code is to ascertain that a resolution plan meets the requirement of sub-sections (2) and (4) of Section 30 thereof. We, per se, do not find any breach of the said provisions in the order of the Adjudicating Authority in approving the resolution plan. 28. The Appellate Authority has, in our opinion, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not expected to do anything more; but is obligated to initiate liquidation process under Section 33(1) of the I B Code. The legislature has not endowed the adjudicating authority (NCLT) with the jurisdiction or authority to analyse or evaluate the commercial decision of the CoC much less to enquire into the justness of the rejection of the resolution plan by the dissenting financial creditors. From the legislative history and the background in which the I B Code has been enacted, it is noticed that a completely new approach has been adopted for speeding up the recovery of the debt due from the defaulting companies. In the new approach, there is a calm period followed by a swift resolution process to be completed within 270 days (outer limit) failing which, initiation of liquidation process has been made inevitable and mandatory. In the earlier regime, the corporate debtor could indefinitely continue to enjoy the protection given under Section 22 of Sick Industrial Companies Act, 1985 or under other such enactments which has now been forsaken. Besides, the commercial wisdom of the CoC has been given paramount status without any judicial intervention, for ensuring completion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wit, the feasibility and viability of the proposed resolution plan and including their perceptions about the general capability of the resolution applicant to translate the projected plan into a reality. The resolution applicant may have given projections backed by normative data but still in the opinion of the dissenting financial creditors, it would not be free from being speculative. These aspects are completely within the domain of the financial creditors who are called upon to vote on the resolution plan under Section 30(4) of the I B Code. 37. On a bare reading of the provisions of the I B Code, it would appear that the remedy of appeal under Section 61(1) is against an order passed by the adjudicating authority (NCLT) which we will assume may also pertain to recording of the fact that the proposed resolution plan has been rejected or not approved by a vote of not less than 75% of voting share of the financial creditors. Indubitably, the remedy of appeal including the width of jurisdiction of the appellate authority and the grounds of appeal, is a creature of statute. The provisions investing jurisdiction and authority in the NCLT or NCLAT as noticed earlier, has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ededly, the process of resolution plan is necessitated in respect of corporate debtors in whom their financial creditors have lost hope of recovery and who have turned into nonperformer or a chronic defaulter. The fact that the concerned corporate debtor was still able to carry on its business activities does not obligate the financial creditors to postpone the recovery of the debt due or to prolong their losses indefinitely. Be that as it may, the scope of enquiry and the grounds on which the decision of approval of the resolution plan by the CoC can be interfered with by the adjudicating authority (NCLT), has been set out in Section 31(1) read with Section 30(2) and by the appellate tribunal (NCLAT) under Section 32 read with Section 61(3) of the I B Code. No corresponding provision has been envisaged by the legislature to empower the resolution professional, the adjudicating authority (NCLT) or for that matter the appellate authority (NCLAT), to reverse the commercial decision of the CoC much less of the dissenting financial creditors for not supporting the proposed resolution plan. Whereas, from the legislative history there is contra indication that the commercial or bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 SC at page 739, wherein, at Paragraphs 10 to 12, it is observed as under: 10. The Preamble of the Code states as follows: An Act to consolidate and amend the laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time-bound manner for maximization of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto. 11. As is discernible, the Preamble gives an insight into what is sought to be achieved by the Code. The Code is first and foremost, a Code for reorganization and insolvency resolution of corporate debtors. Unless such reorganization is effected in a time-bound manner, the value of the assets of such persons will deplete. Therefore, maximization of value of the assets of such persons so that they are efficiently run as going concerns is another very important objective of the Code. This, in turn, will promote entrepreneurship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends. 37. The Learned Counsel for the Respondent Nos. 1 3 adverts to the decision of the Hon ble Supreme Court of India in Ghanashyam Mishra and Sons Private Limited v. Edelweiss Asset Reconstruction Company Limited and Ors., reported in MANU/SC/0273/2021 (vide Civil Appeal No.8129 of 2019, etc. dated 13.04.2021, wherein at Paragraphs 53 to 55), it is observed as under: 53. After discussing the relevant provisions of I B Code, this Court observed thus: 33. Under Section 30, any person who is interested in putting the corporate body back on its feet may submit a resolution plan to the resolution professional, which is prepared on the basis of an information memorandum. This plan must provide for payment of insolvency resolution process costs, management of the affairs of the corporate debtor after approval of the plan, and implementation and supervision of the plan. It is only when such plan is approved by a vote of not less than 75% of the voting share of the financial creditors and the adjudicating au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um order passed by the Adjudicating Authority under Section 14 shall cease to operate, once the Adjudicating Authority approves the resolution plan. The scheme of I B Code therefore is, to make an attempt, by divesting the erstwhile management of its powers and vesting it in a professional agency, to continue the business of the Corporate Debtor as a going concern until a resolution plan is drawn up. Once the resolution plan is approved, the management is handed over under the plan to the successful applicant so that the Corporate Debtor is able to pay back its debts and get back on its feet. 55. This Court recently in the case of Kalpraj Dharamshi and Anr. vs. Kotak Investment Advisors Ltd. and Anr. (supra) has, in detail, considered the provisions of Sections 30 and 31 of I B Code, the Bankruptcy Law Reforms Committee (BLRC) Report of 2015 and the judgments of this Court in the case K. Sashidhar (supra), Committee of Creditors of Essar Steel India Limited through Authorised Signatory v. Satish Kumar Gupta Ors. (supra) and Maharashtra Seamless Limited vs. Padmanabhan Venkatesh and Ors. (supra) and observed thus: 139. It is thus clear, that the Committee was of the vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plan by CoC of the respective corporate debtor, namely, KS PIPL and IIL, by a vote of less than seventy-five percent of voting share of the financial creditors; and about the correctness of the view taken by NCLAT that the percentage of voting share of the financial creditors specified in Section 30(4) of the I B Code is mandatory. Further, is it open to the adjudicating authority/appellate authority to reckon any other factor other than specified in Sections 30(2) or 61(3) of the I B Code as the case may be which, according to the resolution applicant and the stakeholders supporting the resolution plan, may be relevant? (emphasis supplied) 142. After considering the judgment of this Court in the case of Arcelormittal India Private Limited v. Satish Kumar Gupta and the relevant provisions of the I B Code, this court further observed in K. Sashidhar (supra) thus: 52. As aforesaid, upon receipt of a rejected resolution plan the adjudicating authority (NCLT) is not expected to do anything more; but is obligated to initiate liquidation process under Section 33(1) of the I B Code. The legislature has not endowed the adjudicating authority (NCLT) with the jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lan. They act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. It has been held, that the opinion expressed by CoC after due deliberations in the meetings through voting, as per voting shares, is a collective business decision. It has been held, that the legislature has consciously not provided any ground to challenge the commercial wisdom of the individual financial creditors or their collective decision before the Adjudicating Authority and that the decision of CoC's commercial wisdom is made non justiciable. 144. This Court in Committee of Creditors of Essar Steel India Limited through Authorised Signatory (supra) after referring to the judgment of this Court in the case of K. Sashidhar (supra) observed thus: 64. Thus, what is left to the majority decision of the Committee of Creditors is the feasibility and viability of a resolution plan, which obviously takes into account all aspects of the plan, including the manner of distribution of funds among the various classes of creditors. As an example, take the case of a resolution plan which does not provide for payment of electricity dues. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. It will be relevant to refer to paragraph 55 of the judgment in the case of K. Sashidhar (supra), which reads thus: 55. Whereas, the discretion of the adjudicating authority (NCLT) is circumscribed by Section 31 limited to scrutiny of the resolution plan as approved by the requisite per cent of voting share of financial creditors. Even in that enquiry, the grounds on which the adjudicating authority can reject the resolution plan is in reference to matters specified in Section 30(2), when the resolution plan does not conform to the stated requirements. Reverting to Section 30(2), the enquiry to be done is in respect of whether the resolution plan provides : (i) the payment of insolvency resolution process costs in a specified manner in priority to the repayment of other debts of the corporate debtor, (ii) the repayment of the debts of operational creditors in prescribed manner, (iii) the management of the affairs of the corporate debtor, (iv) the implementation and supervision of the resolution plan, (v) does not contravene any of the provisions of the law for the time being in force, (vi) conforms to such other requirements as may be specified by the Board. The Board re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstituting an appeal that too against an order approving a resolution plan under Section 31. First, that the approved resolution plan is in contravention of the provisions of any law for the time being in force. Second, there has been material irregularity in exercise of powers by the resolution professional during the corporate insolvency resolution period. Third, the debts owed to operational creditors have not been provided for in the resolution plan in the prescribed manner. Fourth, the insolvency resolution plan costs have not been provided for repayment in priority to all other debts. Fifth, the resolution plan does not comply with any other criteria specified by the Board. Significantly, the matters or grounds- be it under Section 30(2) or under Section 61(3) of the I B Code- are regarding testing the validity of the approved resolution plan by CoC; and not for approving the resolution plan which has been disapproved or deemed to have been rejected by CoC in exercise of its business decision. [emphasis supplied] 150. It will therefore be clear, that this Court, in unequivocal terms, held, that the appeal is a creature of statute and that the statute has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel 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. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the adjudicating authority has to be satisfied that the requirement of Sub section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an adjudicating authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the adjudicating authority in limited judicial review has been laid down in Essar Steel [Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta, MANU/SC/1577/2019 : (2020) 8 SCC 531], the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ingredients of Section 5 (25) of the I B Code, which provides the Resolution Applicant , means a Person , who individually or jointly with any other Person , submits a Resolution Plan to the Resolution Professional pursuant to the invitation made under clause (h) of Sub-section (2) of Section 25. 43. According to the Learned Counsel for the Respondent Nos. 1 3, the term Person , is defined under Section 3 (23) (d) of the I B Code, which includes a Trust , therefore, the Learned Counsel for the Respondent Nos. 1 3 contends that there is no prohibition for a Trust , to be a Resolution Applicant , in furnishing the Resolution Plan , under Corporate Insolvency Resolution Process . Furthermore, the Plan is fully implemented and the Hospital premises, owned by the Corporate Debtor , is in final stage of its Revival . And further that, the Resolution Applicant , had recruited the Employees to the New Division, which includes former Employees of the Corporate Debtor . 44. Added further, on completion of the ongoing revival works, the Resolution Applicant , is expected to generate more than 1000 direct and 2000 indirect Employment opportunities and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated Realisable Value of the Assets of Corporate Debtor , if they were to be exchanged on the Insolvency Commencement Date , between a willing buyer and a willing seller in an arm s length transaction after proper marketing and where the Parties , had acted knowledgably, prudently and without coercion. 51. In accordance with the amended clause (h) (a) , the words Evaluation Matrix , means such parameters to be applied and the manner of applying such parameters, as approved by the Committee for consideration of Resolution Plan(s) for its approval. On receipt of the Resolution Plan(s) as per the I B Code, 2016, and these Regulations , the Resolution Professional , shall provide the Fair Value and the Liquidation Value , to every Member of the Committee , in Electronic Form , on receipt of an undertaking from the Member , to the effect that such Member , shall maintain confidentiality of Fair Value and Land Value and shall not use such value, to cause an undue gain or undue loss to itself or any other person and comply with the requirements under Sub Section 2 of Section 29 of the I B Code, 2016. Rumination of Resolution Plan: 52. The R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Professional , had averred in his Counter , in the instant Appeal that the Fair Value and the Liquidation Value of the Corporate Debtor were arrived at by both the groups of Registered Valuers , were not significantly different and as such, there was no requirement to appoint another Registered Value , by the Resolution Professional , to submit an estimate of the Value , computed in the same manner, as per Regulation 35 (b) of the Corporate Insolvency Resolution Process Regulations. 58. As a matter of fact, the Value , arrived at by the Registered Valuers , are only estimates and the same cannot be construed as an Accurate Value of the Corporate Debtor. In this regard, it is useful to mention the summary of the Valuation Reports , submitted by the Two Registered Valuers , which runs as under: Sl. No. Name of the lead Registered Valuer Fair Value (As on 31st March 2019 Amount in Crores) Liquidation Value (As on 31st March, 2019 Amount in Crores) 1 Mr. Jigar Shah 160.85 121.46 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Authority ( Appellate Tribunal ), to consider any other feature than the one mentioned in Section 30 (2) or Section 61 (3) of the I B Code, 2016 , in the considered opinion of this Tribunal . 64. In this connection, this Tribunal , points out the Judgment of the Hon ble Supreme Court of India in Kalpraj Dharamshi and Anr. v. Kotak Investment Advisors Limited and Anr. (vide Civil Appeal Nos. 2943 2944 of 2020 dated 10.03.2021), wherein at Paragraphs 155 and 156, it is observed as under: 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. 156. No doubt, it is sought to be urged, that since there has been a material irregularity in exercise of the powers by RP, NCLAT was justified in view of the provisions of clause (ii) of sub section (3) of Section 61 of the I B Code to interfere with the exercise of power by RP. However, it could be seen, that all actions of RP have the seal of approval of CoC. No doubt, it was possible for RP to have issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in a time-bound manner for maximisation of value of assets of such persons, promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto. 27. As is discernible, the Preamble gives an insight into what is sought to be achieved by the Code. The Code is first and foremost, a Code for reorganisation and insolvency debtors. Unless such reorganisation is effected in a time-bound manner, the value of the assets of such persons will deplete. Therefore, maximisation of value of the assets of such persons so that they are efficiently run as going Concerns is another very important objective of the Code. This, in turn, will promote entrepreneurship as the persons in management of the corporate debtor are removed and replaced by entrepreneurs. When, therefore, a resolution plan takes off and the corporate debtor is brought back into the economic mainstream, it is able to repay its debts, which, in turn, enhances the viability of credit in the hands of banks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of such Committee must reflect the fact that it has taken into account maximising the value of the assets of the corporate debtor and the fact that it has adequately balanced the interests of all stakeholders including operational creditors. This being the case, judicial review of the Adjudicating Authority that the resolution plan as approved by the Committee of Creditors has met the requirements referred to in Section 30(2) would include judicial review that is mentioned in Section 30(2)(e), as the provisions of the Code are also provisions of law for the time being in force. Thus, while the Adjudicating Authority cannot interfere on merits with the commercial decision taken by the Committee of Creditors, the limited judicial review available is to see that the Committee of Creditors 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 has Adjudicating Authority finds, on a given set of facts, that the aforesaid parameters have not been kept in view, it may send a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... true that charity does not necessarily exclude carrying on an activity which yields profit, provided that profit has to be used up for what is recognised as charity. The very concept of charity denotes altruistic thought and action. Its object must necessarily be to benefit others rather than one's self. Its essence is selflessness. In a truly charitable activity any possible benefit to the person who does the charitable act is merely incidental or even accidental and immaterial. The action which flows from charitable thinking is not directed towards benefitting one's self. It is always directed at benefitting others. It is this direction of thought and effort and not the result of what is done, in terms of financially measurable gain, which determines that it is charitable. This direction must be evident and obligatory upon the trustee from the terms of a deed of trust before it can be held to be really charitable. 67. To put it precisely, the word Person , is defined as per Section 3 (23) (d) of the I B Code, 2016, which includes a Trust , therefore, there is no Fetter / Embargo or a Legal Impediment , for a Trust , to be a Resolution Applicant , in submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Comp. App (AT) (CH) (INS.) No. 179 of 2021 by the Appellant as an Aggrieved Person , in respect of the impugned order dated 22.02.2021 and modified on 16.03.2021 is held maintainable in law , by this Tribunal . 73. Be that as it may, in view of the detailed qualitative and quantitative upshot, this Tribunal , taking note of the divergent contentions advanced on either side, entire gamut of the factual matrix and attendant facts and circumstances of the instant case, in an integral manner, comes to an inescapable conclusion that the Appellant has not made out a case in its favour and has not proved any of the grounds adumbrated in Section 61 (3) of the I B Code, 2016, for filing an Appeal , against the impugned order dated 16.03.2021 in IA(IBC)/13/KOB/2021 in TIBA No.11/KOB/2019, passed by the Adjudicating Authority , ( National Company Law Tribunal , Kochi Bench, Kerala), in approving the Resolution Plan , under Section 31 of the I B Code, 2016. Viewed in that perspective, the Appeal fails. Disposition : In fine, the instant Company Appeal (AT) (CH) (INS.) No. 179 of 2021 is dismissed. There shall be no order, as to costs. The connected pending ..... X X X X Extracts X X X X X X X X Extracts X X X X
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