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TMI Blog2018 (6) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... lution Applicant(s), if such step has been taken be ignored. Resolution Professional and the Committee of Creditors will proceed in accordance with law taking into consideration the observations as made above and decision, if any, taken by the Adjudicating Authority shall be subject to decision of this appeal - I.A. No. 594 of 2018 in Company Appeal (AT) (Insolvency) No. 188 of 2018 - - - Dated:- 15-5-2018 - Mr. S. J. Mukhopadhaya And Mr. Bansi Lal Bhat For The Appellant : Mr. C. A. Sundaram and Mr. Neeraj Kishan Kaul, Senior Advocates assisted by Mr. Manu Nair, Ms. Misha, Mr. Siddhant Kaul, Ms. Rubika, Mr. Deepak Joshi, Mr. Rajeev, Mr. Samar and Ms. Hansa Kaul, Advocates. For The Respondents : Mr. Mukul Rohatgi and Mr. Amrendra Saran, Sr. Advocates assisted by Mr. Mahesh Agarwal, Mr. Rajeev Kumar, Ms. Aastha Mehta and Mr. Himanshu Satija, Advocates, Mr. Arvind Kumar Gupta, Mr. Kumar Karthikay, Mr. Vishal Meghwa, Advocates, Mr. Tushar Mehta, Sr. Advocate with Mr. R. Sudhinder, Ms. Amrita Sarkar, Mr. Sumant Batra, Mr. Sumant Batra, Ms. Honey Satpal and Ms. Srishti Kapoor, Mr. Abhinav Vashishta, Mr. Prashant Pakhiddey And Mr. Pranshu Paul ORDER An Interlocu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are an Information Memorandum in the form and manner containing relevant information as specified by the Insolvency and Bankruptcy Board of India ( Board for short) for formulating a resolution plan. The Resolution Professional is required to provide Resolution Applicant all the relevant information in physical and electronic form. As per Section 29(2), the Resolution Applicant is required to undertake a. to comply with provisions of law for the time being in force relating to confidentiality and insider trading; b. to protect any intellectual property of the corporate debtor it may have access to; and c. not to share relevant information with third parties unless clauses (a) and (b) of sub-section aforesaid are complied with. From the aforesaid provision it is clear that the Resolution Professional cannot share the information with third parties without complying with clauses (a) and (b) of Sub-section (2) of Section 29. 7(B). Section 30 relates to Submission of resolution plan by Resolution Applicant based on Information Memorandum . As per Section 30(2), the Resolution Professional is required to examine each resolution plan received by him to confirm that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Authority. The Committee of Creditors may approve the resolution plan by a vote of not less than 75 per cent of the voting share of the financial creditors as per Section 30(4). From Section 30(2) it is clear that the Resolution Professional himself is required to examine each resolution plan to find out whether they confirm the requirement in terms of clause (a), (b), (c), (d) and (f) of Section 30(2) and does not contravene any of the provisions of the law for the time being in force. 7(C). The persons who are ineligible to submit the resolution plan prescribed under Section 29 A which reads as follows: 29A. A person shall not be eligible to submit a resolution plan, if such person, or any other person acting jointly or in concert with such person ( a) is an undischarged insolvent; ( b) is a wilful defaulter in accordance with the guidelines of the Reserve Bank of India issued under the Banking Regulation Act, 1949; ( c) has an account, or an account of a corporate debtor under the management or control of such person or of whom such person is a promoter, classified as non-performing asset in accordance with the guidelines of the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( C) an Alternate Investment Fund registered with the Securities and Exchange Board of India. The provision have made it clear as to who will declare whether a person is ineligible to submit resolution plan as per Section 29A. 8. Prima facie, in absence of any information through any source while scrutinizing the resolution plan under Section 30(2), the Resolution Professional cannot hold or decide as to who is ineligible under Section 29A. Section 30(2) does not confer such power to the Resolution Professional nor there is any other provision conferring such power to the Resolution Professional to scrutinize the eligibility of one or other Resolution Applicant. 9. As per Section 30(2), the Resolution Professional is required to examine whether resolution plan confirm the provisions as mentioned therein but he cannot disclose it to any other person including Resolution Applicant(s), who has submitted the resolution plan. According to us, the resolution plan submitted by one or other Resolution Applicant being confidential cannot be disclosed to any competitor Resolution Applicant nor any opinion can be taken or objection can be called for from other Resolution Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of the aggregate dues is not less than ten per cent of the debt. Section 24(4) shows that the Directors, Partners, Representatives of Operational Creditors may attend the meeting of Committee of Creditors but have no right to vote in such meeting. The meeting of the Committee of Creditors is required to be conducted in such a manner as may be specified by the Board. 12. As per Section 30(5), the Resolution Applicants can attend the meeting of Committee of Creditors in which the resolution plans of the Resolution Applicants are considered. 13. If Section 24 is read with Section 30, it is clear that the following persons are to take part in the meeting of Committee of Creditors at the time of approval of one or other resolution plan. (a) members of Committee of Creditors; (b) members of the (suspended) Board of Directors or the Partners of the corporate persons; (c) Operational Creditors or their representatives if the amount of their aggregate dues is not less than ten per cent of the debt [Clause (a), (b), (c) of Section 24(3)]; and (d) Resolution Applicant(s) when resolution plan of such applicant(s) are placed for consideration [Section 30(5)]. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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