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TMI Blog2023 (3) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned Order', dated 03.02.2023 in 'IA(IBC)/288(CHE)/2022 in CA/1/IB/20107', passed by the 'Adjudicating Authority' ('National Company Law Tribunal', Division Bench - I, Chennai), in 'Approving', the 'Resolution Plan', submitted by the '2nd Respondent'. 3. The Learned Senior Counsel for the Petitioner/Appellant submit that the 'Petitioner/Appellant', is a 'Third Party', to the 'impugned order' dated 03.02.2023, passed by the 'Adjudicating Authority' ('Tribunal'), and further, he is one of the 'Prospective Resolution Applicants', who had suffered, due to the 'Resolution Process'. In fact, the 'Petitioner/Appellant', has a 'vested interest' in pursuing the present 'Appeal'. 4. The Learned Counsel for the Petitioner/Appellant points out that the 'Petitioner/Appellant', had objected to the 'Resolution Plan', and filed IA No. 507 of 2022, which was 'dismissed', by the 'Adjudicating Authority' ('Tribunal'), and the said 'Order', is assailed in Comp. App (AT) (INS.) No. 435 of 2023, and therefore, prays for &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .02.2020. How the dismissal of Company Petition No. 355 of 1997 in default on 19.12.2019 can give cause of action to file an Application under Section 7 by Respondent No. 1 has not been explained. The assignment deeds on the basis of which Respondent No. 1 has claimed assignment of debts by creditors, itself mentions the details of proceedings initiated for recovery of the dues by the Banks. To take an example, the Allahabad Bank has filed a Suit No. 78 of 1993 against the Company, which was subsequently numbered as T.A. No. 64 of 1994 and recovery certificate for an amount of Rs. 26,20,41,281/- was issued. On the basis of which, Recovery Proceeding No. 42 of 1996 was initiated. We may notice averments in paragraph 3, 4 and 5 of the deed of assignment dated 05.11.2008 by which Allahabad bank has assigned its debts to Ashray: "3. The Assignor had in the ordinary course of its business, at the request of Gourepore Company Limited (now in liquidation) lent and advanced to the said Company certain sums of money against executing various documents by the said Company in favour of the Assignor, whereby the Company had hypothecated/mortgaged its various assets lying at its factory situa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 'Stakeholder', within the meaning of Section 31 (1) of the I & B Code, 2016, and hence, he is not an 'Aggrieved Party', in respect of the 'impugned order', in approving the 'Resolution Plan' of the '2nd Respondent'. 8. Advancing his argument, it is the plea of the 1st Respondent that an 'Unsuccessful Resolution Applicant', cannot be considered as a 'Stakeholder', pertaining to the 'Corporate Debtor', and in reality, the 'Petitioner/Appellant', is not a 'Person Aggrieved', within the meaning of Section 61 of the 'Code'. 9. Furthermore, the 'Resolution Plan', was already implemented and that the '2nd Respondent/Successful Resolution Applicant', had infused funds, amounting to Rs. 400/- Crores, to be distributed among the 'Stakeholders', under the 'Approved Resolution Plan'. Besides this, the 'implementation of the Resolution Plan', is 'complete', to the extent the funds were transferred to all the 'Stakeholders', in accordance with the 'Resolution Plan', with the exception of 'disputed EPFO Dues', which remains in 'No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a re-negotiated fresh Resolution Plan and the application of the Committee of Creditors under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short) filed before the Adjudicating Authority was not maintainable and should not have been entertained by the Adjudicating Authority for the Committee of Creditors had become functus officio after approval of the Resolution Plan. It is submitted that the Adjudicating Authority had approved the Resolution Plan on 04.02.2020 and in terms of the approved Resolution Plan the Successful Resolution Applicant had to bring in Rs. 123 Cr. for Resolution within 30 days of approval of the plan which expired on 05.03.2020. However, the Successful Resolution Applicant did not implement the Resolution Plan and the erstwhile Committee of Creditors of the Corporate Debtor, in connivance with the Successful Resolution Applicant, accepted a fresh resolution plan to the detriment of legal rights of the Appellant whose Resolution Plan was rejected on the ground that he could not provide for lump sum time bound payment within 30 days of the approval of its Resolution Plan. 2. After hearing Mr. Abhijeet Sinha, Advocate for the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of this 'Tribunal', between Ajay Gupta v. Pramod Kumar Sharma, RP of M/s. B.B. Foods Pvt. Ltd. (vide Comp. App (AT) (INS.) No. 35 of 2022), reported in MANU/NL/0552/2022, wherein, at paragraphs 3 to 5, it is observed and held as under: 3. "The grievance of Mr. Abhishek Anand, Advocate is that, the modifications of the Applicant's plan were known to everyone hence no opportunity ought to have been given to others to modify their plan. We do not find any substance in the above submissions. The Adjudicating Authority has rightly observed that for not to disturb level playing field, the other resolution applicants were also permitted to give modifications of the resolution plan. 4. Mr. Abhijeet Sinha, Advocate appearing on behalf of Respondent submits that in pursuance of the Order dated 13.12.2021 the Applicant did submit plan on 15th December, 2021 which has been considered by Committee of Creditors on 21st December, 2021. 5. Learned Counsel for the Appellant submits that the Regulation 39(1A) as amended on 30th September, 2021 was not applicable and Resolution Professional has wrongly said that said Regulation is applicable. We see no justification to enter in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence. 17. Before concluding on the matter, we need to indicate two other relevant factors concerning this matter. One is that the other resolution applicant, whose resolution plan has been accepted by the Committee of Creditors, is not before us and has not been impleaded as a party respondent in this appeal. Hence, no order prejudicial to the interest of the successful resolution applicant could be passed in this appeal. Secondly, the matter would nevertheless require further processing before the Adjudicating Authority; and for that matter, we are informed that the approval of the Committee of Creditors has already been placed before the Adjudicating Authority.'' 16. The Learned Counsel for the 1st Respondent, refers to the decision of the Hon'ble Supreme Court dated 18.01.2022, in Bank of Baroda and Anr. v. MDL Infrastructures Ltd. & Ors. (vide Civil Appeal No. 8411 of 2019), reported in (2022) 5 Supreme Court Cases 661, wherein at paragraph 63 to 65, it is observed as under: 63. "Secondly, majority of the creditors have given their approval to the resolution plan. The adjudicating authority has rightly noted that it was accordingly approved after taking into co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Plan has been approved and Successful Resolution Applicant has infused substantial money and all on-going projects were of the public importance, hence Hon'ble Supreme Court refused to disturb the Resolution Plan. Paragraph 61 to 64 of the judgment are to the following effect: "61. Having held so, we would like to come to the last part of our order. Though the very resolution plan submitted by the Respondent No. 3, being ineligible is not maintainable, much water has flown under the bridge. The requisite percentage of voting share has been achieved. We may also note that the percentage has been brought down from 75% to 66% by way of an amendment to Section 30(4) of the Code. 62. Secondly, majority of the creditors have given their approval to the resolution plan. The adjudicating authority has rightly noted that it was accordingly approved after taking into consideration, the techno-economic report pertaining to the viability and feasibility of the plan. The plan is also put into operation since 18.04.2018, and as of now the Respondent No. 1 is an on-going concern. Though, the Respondent No. 11 has taken up the plea that its offer was conditional, it has got a very mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the 'Committee of Creditors' decision to revise the 'Plan', for the second time, to ensure 'Value Maximisation', and rather 'elected to participate', in the process. 21. The Learned Counsel for the 2nd Respondent points out that the 'Petitioner/Appellant', had the 'Auction', to 'Protest', as early as on 28.01.2022, and in fact, the Learned Counsel for the '2nd Respondent', adverts to the 'Order' of this 'Tribunal', dated 21.10.2022, between Bipin Textile Processing v. Shivadutt Bannanje & Ors. (vide IA No. 771 of 2022 in Comp. App (AT) (CH) (INS) No. 341 of 2022), wherein, it was held that the 'Object of seeking Leave', is to prevent an 'unreasonable plea', to be taken by a 'Stakeholder'/'Litigant', who has 'no tangible/substantial defence', in regard to the 'implementation' of the 'Resolution Plan'. 22. The Learned Counsel for the 2nd Respondent draws the attention of this 'Tribunal', that the '1st Respondent' became 'functus officio', in so far as being the 'Resolution Professional' of the Corporate Debtor. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;1st Respondent', he is 'not an Aggrieved Person', in respect of the 'impugned order', passed by the 'Adjudicating Authority' ('Tribunal'). Therefore, the 'Petitioner/Appellant', is not entitled to prefer the instant 'Appeal'. 28. The 2nd Respondent contends that its 'Resolution Plan', was approved by about 97% of 'Vasan Health Care Private Ltd.' ('Corporate Debtor'), 'Committee of Creditors' and the same was 'Approved', by the 'Adjudicating Authority'('Tribunal), through its Order dated 03.02.2023 in IA No. 228 of 2022 in CA/1/IB/2017. 29. The other contention put forward by the 2nd Respondent is that, the 'Petitioner/Appellant', had subjected himself to the very process of revision of the 'Resolution Plan', and in fact, he had participated in the 'Process', and later, it was not opened to him to take a 'contra stand', to raise a 'plea' that the 'Process of Selection', was unfair. In short, according to the '2nd Respondent', the 'Petitioner/Appellant', is precluded from 'assailing the Selection'. 30. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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