TMI Blog2024 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... tunity to the Appellant, direction to the CoC to consider the Plan, cannot be sustained. The Application for approval of Resolution Plan being pending consideration, it shall be open for the Adjudicating Authority to consider IA No.188 of 2024 along with its objection. The impugned order set aside - appeal disposed off. - [ Justice Ashok Bhushan ] Chairperson , [ Barun Mitra ] Member ( Technical ) And [ Arun Baroka ] Member ( Technical ) For the Appellant : Mr. Sunil Fernandes, Sr. Advocate with Mr.Prantik Hazarika, Mr.Nitin Pandey, Ms.Diksha Dadu, Advocates For the Respondent : Mr. Anupam Lal Das, Sr. Advocate with Mrinal Harsh Vardan, Kailash Ram, Advocates for R-1 and R-2 Mr. Arvind Nayyar, Sr. Advocate with Ms. Anuja Pethia, Mr. Subhashish Kumar, Mr. Akshay Joshi, Advocates for R-3 Mr. P Moryia, Advocate for Homebuyer JUDGMENT ASHOK BHUSHAN , J . This Appeal by a Successful Resolution Applicant ( SRA ) has been filed against the order dated 23.01.2024 passed by National Company Law Tribunal, New Delhi Bench (Court-II) in IA No.188/2024 filed by Respondent No.1. 2. Brief facts of the case necessary to be noticed for deciding the Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Appellant by the CoC, there was no occasion for directing consideration of fresh settlement proposal submitted by Ex. Directors to be placed before the CoC, where the earlier Applications filed by the Ex. Directors under Section 12A were already considered and rejected twice by the CoC. It is submitted that after approval of Resolution Plan, there is no jurisdiction in the Adjudicating Authority to direct for consideration of any Application under Section 12A. The learned Counsel for the Appellant submits that Adjudicating Authority in the impugned order has relied on judgment of this Tribunal in Nehru Place Hotels States Pvt. Ltd. vs. Mr. Sanjeev Mahajan and Ors. Company Appeal (AT) (Insolvency) No.1715/ 1716 of 2023 decided on 08.01.2024, where the Adjudicating Authority failed to notice that direction issued by the Adjudicating Authority for arriving at an acceptable settlement by the next date was set aside by this Tribunal. The Adjudicating Authority although noticed the judgment, but failed to notice the ultimate direction passed by the Appellate Tribunal. Learned Senior Counsel for the Appellant has relied on judgments of this Tribunal in Hem Sigh Bharana vs. Pawan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for Respondent Nos.1 and 2 has relied on judgment of Hon ble Supreme Court in Brilliant Alloys Pvt. Ltd. vs. S. Rajagopal and Ors. (2022) 2 SCC 544, where the Hon ble Supreme Court has taken the view that there are no restriction in Section 12A and stipulation under Regulation 30A has to be construed as directory depending on the facts of each case. The learned Counsel for Respondent Nos.1 and 2 has also relied on the judgment of this Tribunal in Shaji Purushothaman Vs Union Bank of India Ors. Company Appeal (AT) (Insolvency) No.921 of 2019, where this Tribunal has observed that if an application is filed under Section 12A, the CoC may decide whether the proposal given by the Appellant for settlement is better than the Resolution Plan as approved by the CoC. It is submitted that as per the above judgment, the CoC can very well consider the proposal submitted by the Applicant. 7. We have considered the submissions of learned Counsel for the parties and have perused the record. 8. From the facts, which have been brought on record, it is clear that earlier applications filed under Section 12A by the Ex. Director was considered and not approved by the CoC. On 13.02.2020, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Plan will be heard on merits. We are of the view that application for approval of the Resolution Plan which has already been filed and pending consideration, the Adjudicating Authority ought to have considered and decided the Application for approval of the plan. It was also open for the Adjudicating Authority to consider I.A. No. 2594 of 2023 and to take a final decision. The plan having been approved on 08th January, 2023 and application is pending for about last one year before the Adjudicating Authority, we are of the view that Adjudicating Authority may proceed expeditiously to decide application filed by the Resolution Professional for approval of the plan i.e. I.A. No. 987 of 2023. It would be also open for the Adjudicating Authority to consider and decide I.A. No. 2594 of 2023 filed by Respondent No. 1. 11th January, 2024 is also fixed in the matter, we request the Adjudicating Authority to proceed to decide the aforesaid application on the date fixed or as early as possible. 9. We are further of the view that in the Application, which was filed by the Ex. Director, where a proposal was submitted for settlement, the Adjudicating Authority ought to have given an o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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