9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (10) TMI 739 - Tri - Insolvency and BankruptcyDirection to Resolution Professional to call for a meeting of the COC and to further direct the COC to invite the Applicant to the said meeting - discussing, negotiating and finalising last revised bid submitted by the Applicant for the purpose of deciding the successful resolution applicant - stay on approval of Resolution Plan. The main prayer of the applicant herein, who is the unsuccessful Resolution Applicant, is that this Adjudicating Authority should direct the RP to conduct another CoC meeting to consider its revised Resolution Plan for the purpose of deciding the successful Resolution Applicant, keeping in view, the objects of the Code. HELD THAT - Various allegations have been levelled by the Applicant alleging bias in favor of the successful Resolution Applicant on the part of the CoC. It is also alleged that CoC accepted the bid of the successful RA, by ignoring the higher bid submitted by the Applicant herein in the evening of 21.02.2019, which was brought before CoC by the RP on 22.02.2019, and that it was done intentionally to keep the applicant out of race. However, no concrete evidence to prove these allegations have been placed on record, particularly in view of the admitted fact that a revised Resolution Plan was submitted suo motu by the applicant herein to RP, after the RP had already submitted IA No. 173/2019, inter-alia, seeking approval of this Adjudicating Authority to the Resolution Plan approved by the CoC in terms of section 30(4) of the Code. As per the provisions of IBC, 2016 once a CIRP application is admitted, it is the duty of RP to constitute CoC and thereafter publish EoI, Information Memorandum and Evaluation Matrix on the basis of decisions taken in CoC meetings. Thereafter, upon receipt of EoI by potential Resolution Applicants, various Resolution plans are examined by the RP and all the compliant Resolution Plans are put up before the CoC for deliberations about each of those plans for considering their feasibility and viability. In this regard, it is pertinent to note here that under the provisions of the Code, the commercial wisdom of the CoC has been given paramount status without any judicial intervention. In the instant case, the present application has been filed before this Adjudicating Authority after placing of Resolution plan approved by CoC for a determination by this Adjudicating Authority under section 31 of the Code - such application is not maintainable as there is no vested right or fundamental right with any Resolution Applicant to have its Resolution Plan considered or approved. Further, as no adjudication has been done on the Resolution Plan so submitted by the RP by this Adjudicating Authority, no such IAs can be adjudicated upon at his stage. Application dismissed as not maintainable.
Issues Involved:
1. Validity of the CoC's decision to approve the resolution plan of the successful Resolution Applicant. 2. Allegations of bias and lack of transparency in the CIRP process. 3. Right of the unsuccessful Resolution Applicant to have its revised resolution plan considered. Detailed Analysis: 1. Validity of the CoC's decision to approve the resolution plan of the successful Resolution Applicant: The CoC in its meeting dated 21.02.2019 approved the resolution plan of M/s. Kamini Metalliks Private Limited (KMPL) and the resolution plan was placed before the Adjudicating Authority by way of IA No. 173/2019 on 22.02.2019. The application IA No. 166/2019 was filed by the unsuccessful Resolution Applicant on 26.02.2019. The main prayer of the applicant was to direct the RP to conduct another CoC meeting to consider its revised resolution plan. However, the tribunal noted that no concrete evidence was provided to prove the allegations of bias and that the revised resolution plan was submitted suo motu by the applicant after the RP had already submitted IA No. 173/2019 seeking approval of the resolution plan approved by the CoC. 2. Allegations of bias and lack of transparency in the CIRP process: The applicant alleged bias in favor of the successful Resolution Applicant and claimed that the CoC accepted the bid of the successful RA by ignoring the higher bid submitted by the applicant. However, the tribunal found no concrete evidence to support these allegations. The tribunal emphasized that under the provisions of IBC, the commercial wisdom of the CoC has been given paramount status without any judicial intervention. The tribunal referred to the Hon'ble Supreme Court's judgment in K. Sashidhar vs. Indian Overseas Bank & Ors., which stated that the financial creditors act on the basis of thorough examination of the proposed resolution plan and their collective business decision is non-justiciable. 3. Right of the unsuccessful Resolution Applicant to have its revised resolution plan considered: The tribunal referred to the Hon'ble Supreme Court's judgment in Arcelor Mittal India Pvt. Ltd. vs. Satish Kumar Gupta, which held that a resolution applicant cannot claim a vested right that his resolution plan be considered. The tribunal also referred to the Hon'ble NCLAT's judgment in JMF ARC vs. Welldo Holdings and Export Pvt Ltd, which stated that no interlocutory applications would be maintainable during the period of submission of a CoC-approved resolution plan by the RP before the Adjudicating Authority for final determination. Consequently, the tribunal dismissed the application IA No. 166/2019 as not maintainable, as there is no vested right or fundamental right with any resolution applicant to have its resolution plan considered or approved. Conclusion: The tribunal dismissed the application IA No. 166/2019 filed by the unsuccessful Resolution Applicant as not maintainable and closed the related application IA No. 759/2019. The tribunal emphasized the paramount status of the commercial wisdom of the CoC and the lack of any vested right for a resolution applicant to have its plan considered or approved.
|
