2018 (7) TMI 1855 - AT - Companies Law

Corporate insolvency resolution process - appellant treated as a related party - Held that - The appellant has disbursed the amount of ₹ 240 Crores in favour of Corporate Debtor in consideration of time value of money as the Corporate Debtor borrowed the loan amount for its business is not in dispute. Thereby, status of the appellant as a financial creditor has not been disputed. But mainly on the ground that he is a related party as defined under Section 24, he has not been allowed to be member of the Committee of Creditors. The findings of Resolution Professional and the Adjudicating Authority being not based on the records of the Corporate Debtor and as it has been found that even after the date of triggering of Corporate Insolvency Resolution Process, the amount of ₹ 20 Crores out of ₹ 240/- Crores investment has not been legally approved as equity share nor recognised by the competent authority that is the Registrar of Companies and the stock exchange, we hold that the appellant cannot be treated to be a related party in relation to Corporate Debtor as defined under Section 24. The Adjudicating Authority has failed to take into consideration the aforesaid facts and wrongly held that the appellant is a related party in relation to the Corporate Debtor, we set aside the impugned order dated 16th November 2017. The Resolution Professional, the members of the Committee of Creditors and the Adjudicating Authority are directed to treat the appellant as one of the member of the Committee of Creditors . We further direct to call for a meeting of the Committee of Creditors after intimating the appellant and to consider the Resolution Plan in accordance with Section 30(4). The Resolution Plan, if earlier approved in absence of appellant financial creditor , being illegal is to be ignored. The appellant will take part in the meeting of the Committee of Creditors but will not raise unnecessarily any objection, if resolution plan already approved by the Committee of Creditors . For the purpose of counting the total period of corporate insolvency resolution process , the period of pendency of the appeal i.e. from 11th December 2017 till the date of this judgement be excluded. Once one or other resolution plan is approved, Resolution Professional will place the same before the Adjudicating Authority for its order under Section 31.

Summary

Issues:
1. Appellant's application under Section 60(5) of the Insolvency and Bankruptcy Code 2016.
2. Dispute regarding the appellant's status as a member of the Committee of Creditors.
3. Interpretation of the definition of "related party" in relation to a Corporate Debtor under Section 5(24).

Issue 1:
The Appellant, a financial creditor, filed an application under Section 60(5) of the Insolvency and Bankruptcy Code 2016 seeking direction to participate in the Committee of Creditors meeting of the Corporate Debtor. The Resolution Professional denied the appellant's membership, citing the appellant as a "related party." The Adjudicating Authority upheld this decision, leading to the appeal.

Issue 2:
The Appellant contended that despite disbursing a significant sum to the Corporate Debtor, the conversion of part of the investment into equity shares did not make them a shareholder in the strict sense. The Resolution Professional argued that the appellant, holding more than 20% shares, qualified as a related party under Section 5(24), thereby ineligible for Committee of Creditors membership. The Tribunal analyzed the evidence, including the Capital structure and allotment details, to determine the appellant's status.

Issue 3:
The Tribunal examined the definition of a related party under Section 5(24) in detail. Noting that the appellant controlled over 20% of voting rights due to ownership, it deemed the appellant a related party. However, the Tribunal found discrepancies in the Resolution Professional's interpretation, emphasizing that the unapproved equity share allotment did not align with the legal definition. Consequently, the Tribunal overturned the Adjudicating Authority's decision, directing the appellant's inclusion in the Committee of Creditors and consideration of the Resolution Plan.

In summary, the judgment revolved around the Appellant's status as a member of the Committee of Creditors, challenging the classification as a related party under the Insolvency and Bankruptcy Code. The Tribunal scrutinized the evidence, including share allotment details and ownership rights, to conclude that the appellant's inclusion was warranted, overturning the previous decisions. The judgment provided detailed analysis and interpretation of the legal provisions, ensuring a fair resolution in line with the Code's objectives.