TMI Blog2023 (2) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... 021, before passing the Order for liquidation of the Corporate Debtor, observed that all possible steps as required under the Code were taken during the period of CIRP and the CoC did not receive any viable Plan/Proposals for revival of the Company. This Tribunal is of the considered view that the issue whether 330 days is to be extended or not has to be seen comprehensively with the decision of the CoC whether any further time is to be granted and if the proposal of the Resolution Applicant was actually under serious consideration. In the instant case, the documentary evidence establishes that the CoC had rejected the Plan submitted by the Appellant herein and the Appellant itself vide email dated 21.04.2021 refused to make the changes as required by the CoC. It is significant to mention that IA259/2021 filed by the RP seeking liquidation was taken up by the Adjudicating Authority on 11.08.2021 and the matter was reserved for Orders, and the Appellant herein submitted their revised Resolution Plan on 16.08.2021 subsequent to the filing of the IA259/2021 and sought that the Liquidation Orders may not be passed. The Counsel appearing for IDBI, a Secured Financial Creditor comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r CoC, at this stage, after completion of CIRP. This application is, therefore, not maintainable. The same stands disposed of as not maintainable. The matter is adjourned to 17.11.2021. 2. It is the case of the `Appellant that it is a `Resolution Applicant who had participated in the Corporate Insolvency Resolution Process (`CIRP ) of the `Corporate Debtor , namely `Aster Private Limited and had submitted a revised Resolution Plan dated 19.05.2019, subsequent to which `Application IA446/2021 was preferred seeking a direction to the Committee of Creditors (`CoC ) to consider their revised Resolution Plan. It is submitted that a revised Resolution Plan was also given to the Resolution Professional (`RP ) vide email dated 16.08.2021. It is contended by the Learned Senior Counsel Mr. Arvind Pandian that vide email dated 14.09.2021 some suggestions were also made in the revised Resolution Plan and on 15.09.2021, the RP had filed a `Counter Affidavit in IA446/21 wherein the RP had requested the `Adjudicating Authority to dismiss the said IA and sought to liquidate the `Corporate Debtor , despite the fact that the CoC was of the opinion that the revised Resolution Plan dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought by the CoC. Based on further discussions, the `Appellant revised the financial terms of the Resolution Plan vide email dated 19.05.2021, however, the same could not be considered by the CoC which had already voted on the Resolution Plan as submitted on 19.04.2021 rejecting the said version of the Resolution Plan as it stood on 19.04.2021. 6. It is the case of the `Appellant that owing to non-consideration of its revised offer dated 19.05.2021, IA446/2021 was preferred seeking a direction to the CoC to consider its revised Resolution Plan. Though the CoC was of the view that the revised Resolution Plan dated 16.08.2021 was a viable one, IA446/2021 was dismissed without assigning any reasons regarding the commercial wisdom of the CoC, and the `Adjudicating Authority had proceeded to allow the `Liquidation Application preferred by the RP. 7. It is the case of the `Appellant that even after the 17th Meeting of the CoC was held on 14.09.2021, which is just prior to the `Impugned Order , the revised Resolution Plan was in active consideration of the CoC. The pandemic period of 125 days ought to have been deducted from the 330-day period, and the `Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the unreasoned `Impugned Order . 9. Learned Counsel appearing for the `Liquidator submitted that pursuant to the directions of the `Adjudicating Authority dated 26.08.2021, the `Liquidator brought the issue to the notice of the CoC and it was only on the instance of the CoC, that an email dated 14.09.2021 was sent to the `Appellant herein. A perusal of the email would reveal that the Members of the CoC was to consider if the `Resolution Applicant was agreeable to carry out the changes mentioned herein. It was specifically stated in the email that the CoC had accepting the confirmation from the `Appellant by 14.09.2021 evening so as to enable the RP to file a `Reply in IA446/2021, which has elicited a response from the `Appellant at 8:49 PM. As IBC is a time bound process, the RP filed the `Counter on 15.09.2021. It is submitted by the Learned Counsel for the `Liquidator that the `Appellant had never comeback with a proposal for modification as suggested by the CoC and therefore the CoC had no option but to go for `Liquidation . The Learned Counsel placed reliance on the Judgement of the Hon ble Apex Court in K. Sashidhar Vs. Indian Overseas Bank Ors. (2019) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no Plan. A perusal of the email dated 21.04.2021 shows that the `Resolution Applicant had refused to make the intended changes in the Resolution Plan and therefore in the e-Voting held for the period 22.04.2021 to 19.05.2021, the COC rejected the Resolution Plan submitted by the Appellant by a majority Vote of 85.96%. It is also significant to mention that 330 days period of the CIRP has lapsed. The contention of the Learned Counsel for the `Appellant that the `Adjudicating Authority ought to have extended the period of the CIRP as the CoC was considering its Resolution Plan, is untenable in the light of the fact that in the 16th CoC Meeting held on 20.04.2021 itself, the Resolution Plan submitted by the `Appellant herein was rejected. The `Adjudicating Authority in the `Impugned Order dated 22.09.2021, before passing the `Order for liquidation of the `Corporate Debtor , observed that all possible steps as required under the Code were taken during the period of CIRP and the CoC did not receive any viable Plan/Proposals for revival of the Company. 13. This `Tribunal is of the considered view that the issue whether 330 days is to be extended or not has to be seen compreh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unities need to be given to the `Appellant herein as the `Committee of Creditors , had rejected the revised `Resolution Plan , given by the `Appellant herein. Finally, this `Tribunal , addresses to the contention of the Learned Senior Counsel for the `Appellant that without adhering to the `five days time, which ended on 16.09.2021, based on the `Reply filed by the Resolution Professional on 15.09.2021, the `Adjudicating Authority , had passed the `Orders . It is relevant to note that admittedly, several opportunities were given to the Appellant to make the necessary revised changes, the `Appellant itself had refused to make the changes as evident from the email dated 21.04.2021, and ultimately `five days time was given. Further, it is not the case of the `Appellant that any `Affidavit was filed on 14.09.2021 or on 15.09.2021, either before the `Committee of Creditors or before the `Adjudicating Authority with respect to any changes sought to be made in the `Resolution Plan , as intended by the Members of the `Committee of Creditors . Also, this `Tribunal , is quite alive and conscious of the fact that more than a year has lapsed and the I B Code, 2016, is a `time boun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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