9911796707
TMI Blog2023 (5) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... 2022 passed by the Adjudicating Authority (National Company Law Tribunal), Principal Bench, New Delhi allowing I.A. No. 1538 of 2021 filed by the Resolution Professional for approval of the Resolution Plan. The Appellant - Promoter of the Corporate Debtor, M/s Patna Highway Projects Ltd. has come up in this Appeal challenging the order of the Adjudicating Authority approving the Resolution Plan. Brief facts of the case are: i. National Highways Authority of India (NHAI) issued Tender Notice for upgradation of Hazipur-Muzaffarpur Section of NH-77 to four lane dual carriageway. The NHAI issued Letter of Acceptance in favour of the Appellant on 18.11.2019. A Special Purpose Vehicle namely M/s Patna Highway Projects Ltd. (Corporate Debtor) was incorporated to carry on the project. ii. A Concession Agreement dated 24.02.2010 was executed by NHAI in favour of the Corporate Debtor. In due course, a Common Loan Agreement, Escrow Agreement and Substitution Agreement were also executed. iii. NHAI declared Provisional Certificate of Completion on 01.09.2016. Annuities were released, which according to Appellant, were appropriated by lenders. iv. On account of default committed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the Corporate Debtor without infusing any fund of its own. 4. Learned counsel appearing for the Respondent No.1, Resolution Professional has opposed the submission of learned counsel for the Appellant and submits that the Resolution Plan has been approved by the Committee of Creditors in its commercial wisdom which is paramount and non-justiciable. Appellant has failed to show any legal infirmity or non-compliance of Section 30(2) of the Code. There is no ground under Section 61(3) warranting any interference with the impugned order of the Adjudicating Authority. The alleged conditionality as contended by the Appellant was not a condition imposed by the Successful Resolution Applicant to wriggle out of their obligation to be performed under the Resolution Plan. Clause 3.5.1 of the Concession Agreement specifically requires NHAI approval for change in ownership/ control of the Corporate Debtor. Committee of Creditors have considered such aspects while approving the Resolution Plan. There is no provision or requirement of procuring upfront approval of the NHAI for change in ownership even before approval of the plan. NHAI by letter dated 20.12.2022 has granted its in-pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e foregoing, the Resolution Applicant shall be entitled to seek suitable modifications or withdraw the Plan, and such modification or withdrawal shall not result in any claim or liability on the Resolution Applicant (including in the Information Memorandum, RFRP, EOI, Invitations or supporting documents submitted along with the Plan (the terms of which shall be amended). Thereafter, the Resolution Applicant shall have no obligations whatsoever under this Plan or otherwise to any Person, including having no obligation with respect to any bid bond guarantee, earnest money deposit guarantee, performance guarantee, letter of intent or any other obligation and each such guarantee shall be promptly returned to the Resolution Applicant 7. Clause 2.1.3 deals with the unconditional consent and acknowledgement of the NHAI. Clause 2.3.1 is as follows: 2.1.3 The Corporate Debtor shall have obtained the irrevocable and unconditional consent and acknowledgement of the NHAI, substantially in form set out in Schedule 7 (Form of Consent Letter) hereto, subject to any modification acceptable to the Resolution Applicant, in respect of: (a) the terms of this plan, including change in shareholdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of a Resolution Plan on a Resolution Applicant, who is the proponent of the Plan which has been accepted by the CoC cannot remain indeterminate at the discretion of the Resolution Applicant. The negotiations between the Resolution Applicant and the CoC are brought to an end after the CoC's approval. The only conditionality that remains is the approval of the Adjudicating Authority, which has a limited jurisdiction to confirm or deny the legal validity of the Resolution Plan in terms of Section 30 (2) of the IBC. If the requirements of Section 30(2) are satisfied, the Adjudicating Authority shall confirm the Plan approved by the CoC under Section 31(1) of the IBC." 10. In "Ebix Singapore", Hon'ble Supreme Court was considering question as to whether Resolution Applicant after approval of the plan by Committee of Creditors can withdraw/ modify Resolution Plan. It was held that a Resolution Plan whose implementation can be withdrawn at the behest of the Successful Resolution Applicant, is inherently unviable. The Hon'ble Supreme Court laid down that no condition in the Resolution Plan permitting withdrawal by Resolution Applicant is valid. In view of the law laid down by Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The question of viability and feasibility of the plan was the question which was considered by the Committee of Creditors while approving the plan. The Appellant's submission that plan was not viable and feasible and proposal was not adequate, cannot be allowed to be raised. The issue is fully covered by the judgment of the Hon'ble Supreme Court in "K. Sashidhar vs. Indian Overseas Bank and Ors. - (2019) 12 SCC 150". 13. The submission of learned counsel for the Appellant that there was collusion between the Resolution Professional and the Successful Resolution Applicant also does not merit any acceptance. Fraud and collusion is very easy to allege but difficult to prove. No such materials have been brought on the record nor there are any specific pleadings on basis of which any conclusion can be drawn that there was any fraud and collusion in the conduct of the CIRP. Learned counsel for the Respondent is right in his submission that this Appeal is nothing but an attempt to derail the resolution and revival of the Corporate Debtor. 14. Present is a case where Form G was issued and time to submit the plan was extended time to time. There were two Resolution Plans which were duly ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
