TMI Blog2024 (2) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... all mandatory requirements and plan has already been upheld. Thus, no grounds have been made out to interfere with the Order impugned passed by the Adjudicating Authority - appeal dismissed. - [ Justice Ashok Bhushan ] Chairperson And [ Barun Mitra ] Member ( Technical ) For the Appellant : Mr. Rajshekhar Rao, Sr. Advocate with Mr. Raghavendra M. Bajaj, Mr. Agnish Aditya, Mr. Kumar Karan, Mr. Shivansh Dwivedi, Advocates For the Respondents : Mr. Krishnendu Datta, Sr. Advocate with Ms. Pooja Mahajan, Ms. Mahima Singh, Mr. Karanvir Khosla, Mr. Rahul Gupta, Advocates for RP/R-1. Mr. Ramji Srinivasan, Sr. Advocate with Mr. Abhijeet Sinha, Mr. Samar Bansal, Mr. Vedant Kapur, Advocates for CoC Mr. Arun Kathpalia, Sr. Advocate with Mr. Prateek Kumar, Ms. Raveena Rai, Mr. Rohit Ghosh, Advocates for SRA JUDGMENT ASHOK BHUSHAN, J. 1. This Appeal has been filed challenging the Order dated 10th May, 2022 passed by National Company Law Tribunal, Principal Bench, New Delhi in I.A. 3954 of 2021 in CP(IB) No. 1504(PB)2019. By the impugned Order, the Application filed by the Appellant praying for rejection of the Resolution Plan submitted by Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egory in view of the ongoing arbitration between the parties. v. The CoC of the Corporate Debtor approved the Resolution Plan submitted by Respondent No. 3 on 12th March, 2021. Resolution Professional filed an I.A. No. 1538 of 2021 before the Adjudicating Authority seeking approval of the Resolution Plan. Appellant on 28th June, 2021 requested the Resolution Professional to provide copy of the approved Resolution Plan. Appellant filed an I.A. No. 3954 of 2021 praying for rejection of the Resolution Plan submitted by Respondent No. 3 with some other prayers. The Adjudicating Authority heard the parties and passed an order on 10th May, 2022 rejecting I.A. No. 3954 of 2021 filed by the Appellant. By an order of same date i.e. 10th May, 2022, I.A. No. 1538 of 2021 filed by the Resolution Professional was allowed and the plan submitted by Respondent No. 3 was approved by the Adjudicating Authority. vi. Appellant aggrieved by the order dated 10th May, 2022 rejecting I.A. No. 3954 of 2021 has come up in this Appeal. 3. We have heard Mr. Rajshekhar Rao, Learned Sr. Counsel for the Appellant and Mr. Krishnendu Datta, Learned Sr. Counsel for Respondent No. 1 and Mr. Ramji Srinivasan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant is not entitled to challenge the Resolution Plan. It is submitted that Corporate Debtor has made excess payment to the Appellant and Application being I.A. No. 1761 of 2021 seeking avoidance of certain preferential transaction against the Appellant has already been filed on the basis of transaction audit report which application is pending. The request of the Appellant for copy of the Resolution Plan could not have been acceded to. Resolution Plan being a confidential document, Appellant is not entitled to receive copy of the same. Appellant was promoter of the Corporate Debtor and related party. Resolution Professional has filed a detailed reply in I.A. No. 3954 of 2021. The commercial wisdom of the CoC in approving the Resolution plan is paramount and unjusticeable. Resolution Plan submitted by Respondent No. 3 has complied the provisions of the Code. Appellant has failed to demonstrate non-compliance of the Resolution Plan with the requirements under Section 30(2) of the Code, there is no legal infirmity in treatment of the appellant s claim, claim was received from the Appellant, collated and verified by the RP and upon such verification the claim was kept under heading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have noticed above I.A. No. 3954 of 2021, the prayer made was to reject the Resolution Plan submitted by Respondent No. 3 on 11.03.2021. When the plan submitted by Respondent No. 3 has been approved by the Adjudicating Authority by the Order dated 10th May, 2022 which has already received approval by this Tribunal in its judgment dated 25th May, 2023 as noted above, we are of the view that prayer made in the I.A. No. 3954 of 2021 cannot be accepted. 10. Learned Counsel for the Appellant however submitted that several relevant clauses of the Resolution Plan have not been pointed out to the Court while deciding the Appeal No. 920 of 2022 on 25th May, 2023. 11. In the submission Learned Counsel for the Appellant has referred to Schedule 6 of Resolution Plan and has referred to Clause 6 which deals with cost claim. Schedule 6, Clause 6 is as follows: 6. Cost Claims Given the substantial time delays suffered by the Project Highway on account of the delayed handover of Right of Way solely on account of the NHAI s defaults, the Corporate Debtor had to endure sizeable cost overruns and additional financial implication on account of idling of resources, interest costs, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well settled that commercial wisdom of CoC is paramount. Hon ble Supreme Court in K. Sashidhar Vs. Indian Overseas Bank and Ors. (2019) 12 SCC 150 in paragraph 59 of the Judgment, following has been held: 59. In our view, neither the adjudicating authority (NCLT) nor the appellate authority (Nclat) has been endowed with the jurisdiction to reverse the commercial wisdom of the dissenting financial creditors and that too on the specious ground that it is only an opinion of the minority financial creditors. The fact that substantial or majority per cent of financial creditors have accorded approval to the resolution plan would be of no avail, unless the approval is by a vote of not less than 75% (after amendment of 2018 w.e.f. 6-6-2018, 66%) of voting share of the financial creditors. To put it differently, the action of liquidation process postulated in Chapter III of the I B Code, is avoidable, only if approval of the resolution plan is by a vote of not less than 75% (as in October 2017) of voting share of the financial creditors. Conversely, the legislative intent is to uphold the opinion or hypothesis of the minority dissenting financial creditors. That must prevail, if it ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
