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TMI Blog2024 (1) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Mr. Madhav Kanoria, Mr. Raunak Dhillon, Ms. Surabhi Khattar, Ms. Dakshita Chopra, Advocates for R3. JUDGMENT ASHOK BHUSHAN, J. This Appeal has been filed challenging the order dated 09.10.2023 passed by National Company Law Tribunal, Mumbai Bench, Court-II by which order IA No.3363 of 2023 filed by the Appellant for intervention in IA No.2787 of 2023 was rejected. Aggrieved by the order of rejecting the Application seeking intervention, this Appeal has been filed. 2. We need to notice first the background facts giving rise to this Appeal: (i) The Adjudicating Authority in the impugned order has captured the brief facts of the Application in paragraphs 2 to 4, which are sufficient to notice for appreciating the facts giving rise to the Intervention Application by the Appellant. Paragraphs 2, 3 and 4 of the order of the Adjudicating Authority are as follows : "2. The present Application has been filed by PRI0 S.A, one of the prospective resolution applicants ("PRIO/ Applicant"). The corporate insolvency resolution process ("CIRP") was commenced against the Corporate Debtor vide this Hon'ble Tribunal's Order dated November 8, 2019, read with Corrigendum Order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n EOI and was never a part of the final list of PRAs issued by the RP. Hence, this Application to intervene the Interlocutory Application No. 2787 of 2023 filed by the RP." (ii) The Appellant submitted three offers successively to Expression of Interest in pursuance to Form-G and the Resolution Professional ("RP") and the Committee of Creditors ("CoC") interacted and negotiated with the Appellant. The Adjudicating Authority noticed in paragraph 2 that the Appellant on November 21, 2022 submitted a revised offer ("Third Offer") along with all the documents requested by the RP, receipt of which was acknowledged. The Appellant thereafter did not hear anything from the RP and came to know that RP has filed an Application before the Adjudicating Authority on July 5, 2023 for approval of the offer received from Respondent No.2 being IA No.2787 of 2023. The Application filed by RP was for approval of the offer of Respondent No.2. It was after coming to know about the filing of the above Application by RP for approval of offer of Respondent No.2, the IA No.3363 of 2023 was filed by the Appellant praying for following reliefs: "A. This Hon'ble Tribunal be pleased to allow the Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity without permitting the Appellant to intervene in the matter and to file any affidavit in opposition to IA 2787 of 2023 has proceeded to examine the various contentions on merits, which was uncalled for. The Appellant ought to have been permitted to intervene and after permitting the Appellant to file objections/ affidavit, the contention on merits ought to have been examined. The fact that Adjudicating Authority proceeded to examine the contention raised by the Appellant on merits itself indicates that Appellant has sufficient locus in the matter. It is submitted that the Application for approval of offer submitted by Respondent No.2, who was not included in the list of prospective Resolution Applicant, is contrary to process under IBC and Regulations and the Appellant has every right to resist such proceedings. 5. Shri Ramji Srinivasan, learned Senior Counsel for the RP submits that the approval of offer by Respondent No.2 was in pursuance of the offer submitted by the Appellant on 12.11.2021, where the Appellant himself has offered the right of first refusal ("ROFR") provided for in the Quotaholders' Agreement. It is submitted that in accordance with the offer, the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for maximization of value of its assets including sale of all or parts of the assets. How a sale is to be or can be effected would depend upon the facts and circumstances of each particular case and the same would also be subject to contractual rights and liabilities of all the stake holders involved. Therefore, there cannot be a straight jacket formula which can be or has to be applied in each and every insolvency resolution. In extraordinary situations, COC can always adapt to a given situation using its commercial wisdom. Therefore, it cannot be concluded that the whole process is violative of the Code as well as the Regulations. Besides, as earlier pointed out, the applicant has absolutely no locus in the matter nor any of its rights are being infringed as the applicant was conscious of the fact throughout that its offer was a contingent one." 9. The impugned order of the Adjudicating Authority clearly indicates that Adjudicating Authority proceeded to consider the objections raised by the Appellant to the process under which RP and CoC has approved the offer submitted by Respondent No.2. The Adjudicating Authority proceeded to examine the said contention on merits and has r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offer of Respondent No.2 and consequently, approval was sought from the Adjudicating Authority. The Appellant, who had participated in the process has every right to raise question, which arise from CIRP of the Corporate Debtor. We, thus, are of the view that finding of the Adjudicating Authority that the Appellant has no locus, cannot be sustained. 13. The Appellant in his Application has made a prayer (d), i.e., Hon'ble Tribunal be pleased to permit the Applicant to file affidavits/ pleadings and make submissions at the time of hearing of IA No.2787 of 2023. We having found that the Appellant has locus in the matter, we are of the view that the Appellant should be given an opportunity to file objections by way of affidavits/ pleadings to the IA No.2787 of 2023. 14. The learned Counsel for the parties have informed that Adjudicating Authority has reserved the order on IA No.2787 of 2023 on 11.01.2024. The present Appeal was filed by the Appellant on 15.12.2023 and the Appeal was listed on several dates before this Tribunal, i.e., on 18.12.2023, 02.01.2024, 03.01.2024, 09.01.2024, 10.01.2024. Hearing on the Appeal commenced on 10.01.2024, while the Adjudicating Authority reser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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