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TMI Blog2019 (2) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... xtend the timelines at its sole discretion if expedient for obtaining the best ‘Resolution Plan’ for the Company. Therefore, granting more opportunity to all the eligible ‘Resolution Applicants’ to revise its ‘financial offers’, even by giving more opportunity, is permissible in the Law. However, all such process should complete within the time frame. Similar provisions were noticed by this Appellate Tribunal in “Binani Industries Limited” [2018 (11) TMI 803 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] and held that the ‘Committee of Creditors’ in its sole discretion can ask the ‘Resolution Professional’ to negotiate better terms with the ‘Compliant Resolution Applicant(s)’. However, such negotiation to be made and completed within the timeframe i.e. within 180 days’ subject to extension if granted by the Adjudicating Authority which should not be extended beyond 270 days. In this background, while we hold that this appeal preferred by ‘Tata Steel Limited’ is premature, uncalled for, in absence of any final decision taken by the Adjudicating Authority under Section 31, this appeal is also not maintainable. Though we have held that the appeal at the instance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nayar, Senior Advocates with Mr. V.P. Singh, Ms. Ruby Singh Ahuja, Mr. Vishal Gehrara, Mr. Abhimanyu Chopra, Mr. Aditya Jalan, Mr. Aditya Chatterjee, Mr. Aman Sharma, Mr. Utsav Trivedi, Mr. Navandeep Matta, Ms. Tahira Karanjawala, Mr. Vishal, Mr. Avishkar Singhvi, Ms. A.R. Choudhary, Mr. Shubham Saigal, Mr. Shameek, Mr. Utkarsh Maria, Mr. Sahil Monga and Ms. Manjira Dasgupta, Advocates, Mr. Siddhartha Sharma and Mr. A. Mohta, Advocates For The Respondents : Mr. Dhruv Mehta and Mr. A.S. Chandhiok, Senior Advocates with Mr. K. Datta, Ms. Prachi Johri, Ms. Shweta Kakkar, Mr. Angad Baxi and Mr. Rahul Pandit, Advocates, Mr. Abhinav Vasisht, Senior Advocate with Ms. Misha, Mr. Shantanu Chaturvedi, Ms. Priya, Ms. Jasveen Kaur, Ms. Charu Bansal, Ms. Shreyas Gupta, Ms. Srishti Khare, Mr. Anoop Rawat, Advocates, Mr. Kapil Sibal and Mr. Amit Sibal, Senior Advocates with Mr. Manmeet Singh, Ms. Anjali Anchayil, Ms. Geetanjali Shahi, Ms. Anukrit Gupta, Ms. Anusha Nagrajan and Ms. Nishta Chaturvedi, Advocates for JSW Steel Limited ., Mr. Tushar Mehta and Mr. Ramji Srinivasan, Senior Advocates with Mr. Bishwajit Dubey, Mr. Spandan Biswal, Ms. Srideepa Bhattacharya, Mr. Bhupendra Verma, Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulations in order to achieve the object of the Code as quoted above. 2. The main plea taken by the Appellant is that the Adjudicating Authority cannot provide the numerous opportunities at the belated stage. 3. It was stated that the 1st Respondent- Liberty House failed to participate and provide necessary documents as per pre-qualification with criteria, including confidentiality affidavit within the time lines as provided by the Resolution Professional . The 1st Respondent- Liberty House in spite of belatedly admitting to express its interest with complete document was provided with numerous opportunities by communications dated 18th November, 2017, 20th November, 2017, 2nd December, 2017, 8th December, 2017 and 16th December, 2017. 4. However, in view of the subsequent development when the appeal was taken up, counsel for the Appellant had not made much effort to challenge the opportunity given to the 1st Respondent- Liberty House . 5. Tata Steel Limited and JSW Steel Limited ( JSW Steel for short) both had submitted their Resolution Plans . 6. JSW Steel who had already submitted its Resolution Plan on 8th February, 2018 after the aforesaid orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim order was passed directing the Committee of Creditors to allow their representatives to take part in the meeting of the Committee of Creditors . 11. On 1st August, 2018, learned counsel for the Tata Steel Limited submitted that the revised financial offers cannot be allowed to be submitted even for maximization of the assets of the Corporate Debtor . On 1st August, 2018, this Appellate Tribunal while observed that such issue will be decided at the time of disposal of the appeal, as follows: 01.08.2018 xxx xxx xxx 3. In the meantime, to ensure that all parties get opportunities to submit revised financial offers without altering the basic standard like viability and feasibility as shown in the original resolution plans , we give opportunity to Tata Steel Ltd. and Liberty House Group Pvt. Ltd. , if they so choose to file revised financial offer(s) subject to the decision of the appeal by 6th August, 2018 . 12. The aforesaid opportunity was given to the Tata Steel Limited and the Liberty House as JSW Steel has already submitted its revised financial offer . In the meantime, the JSW Steel filed an application for its imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onent to its resolution plan, subject to business exigencies .. (Emphasis supplied) 14. On 6th August, 2018, when the matter was taken up, this Appellate Tribunal passed the following order: 06.08.2018 As the Interlocutory Application is the conditional one, we are not inclined to pass any specific order, particularly, as the matter is also pending before the Hon ble Supreme Court. However, on the oral request of the learned counsel for the appellant, we allow the Appellant and the other Resolution Applicants to file additional unconditional resolution plans by 13th August, 2018 improving the financial offer without compromising the basic para-meters of the resolution plans already submitted by them. In such case additional plans will be treated to the part of their respective original resolution plans . I.A. No. 1154 of 2018 stands disposed of. Dasti service is permitted. 15. The Hon ble Supreme Court in the meantime dismissed the appeal preferred by Tata Steel Limited on 10th August, 2018. In view of the order of this Appellate Tribunal dated 6th August, 2018, JSW Steel also submitted its improved financial offer on 13th August, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted as many as six Resolution Plans , which were wrongly considered by the Committee of Creditors . 22. It was submitted that after the order of this Appellate Tribunal, after 13th August, 2018 no Resolution Plan could have been accepted by the Committee of Creditors . Further, according to learned Senior Counsel, the Resolution Applicants have no right to revise their bids endlessly and the Committee of Creditors are not authorized to entertain fresh or revised bids without exhausting available bids. 23. Learned Senior counsel appearing on behalf of the Committee of Creditors while refuted the allegations of bias submitted such allegations is not based on record. 24. According to learned Senior Counsel for the Committee of Creditors , the orders of this Appellate Tribunal dated 1st August, 2018 and 6th August, 2018 do not restrict the Committee of Creditors from exercising its powers and obligations and to seek clarifications from the Resolution Applicants as permitted under the Code and Regulations. In fact, the Committee of Creditors has acted in accordance with law. 25. Earlier, it was made clear by this Appellate Tribunal that it was open to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Resolution Applicant has no vested right or fundamental right to have its Resolution Plan considered or approved. The Hon ble Supreme Court observed and held as follows: 75. What has now to be determined is whether any challenge can be made at various stages of the corporate insolvency resolution process. Suppose a resolution plan is turned down at the threshold by a Resolution Professional under Section 30(2). At this stage is it open to the concerned resolution applicant to challenge the Resolution Professional s rejection? It is settled law that a statute is designed to be workable, and the interpretation thereof should be designed to make it so workable 76. Given the timeline referred to above, and given the fact that a resolution applicant has no vested right that his resolution plan be considered, it is clear that no challenge can be preferred to the Adjudicating Authority at this stage. A writ petition under Article 226 filed before a High Court would also be turned down on the ground that no right, much less a fundamental right, is affected at this stage. This is also made clear by the first proviso to Section 30(4), whereby a Resolution Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32. It is true that the Committee of Creditors will have to ensure a time bound process, to better preserve the economic value of the asset. Simultaneously, it is duty of the Committee of Creditors to ensure that the Resolution Plan is viable, feasible and should maximize the assets of the Corporate Debtor . 33. In Binani Industries Limited Vs. Bank of Baroda Anr. Company Appeal (AT) (Insolvency) No. 82 of 2018 etc. , this Appellate Tribunal by its judgment dated 14th November, 2018 held that the Corporate Insolvency Resolution Process is not a litigation, nor it is money suit. The persons are not required to submit bid. The Committee of Creditors has a statutory mandate to ensure value maximization within the timeframe prescribed by the I B Code . In the said case, this Appellate Tribunal noticed almost similar facts of submission of revised offer and observed: 32 . ... It appears that the process document was issued on 20th December, 2017 which inter alia stipulated general and qualitative parameters. It clearly indicated that Committee of Creditors will negotiate only with the Resolution Applicant which reveals highest score ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Process Document issued by the Resolution Professional in consultation with the Committee of Creditors which are as follows: 37. From the Process Document, it is clear that the Committee of Creditors have absolute discretion but without being under any obligation to do so, update, amend or supplement the information, assessment or assumptions and right to change, update, amend, supplement, modify, add to, delay or otherwise annul or cease the Resolution Process at any point in time. Thus, the Resolution Plan can be modified as per dates or other terms and conditions set out in the Process Document . 38. As per Clause 1.3.6, the Committee of Creditors have right to negotiate better terms with the Compliant Resolution Applicant(s) . In terms of Clause 1.14.13, the Resolution Professional in consultation with the Committee of Creditors can extend the timelines at its sole discretion if expedient for obtaining the best Resolution Plan for the Company. Therefore, granting more opportunity to all the eligible Resolution Applicants to revise its financial offers , even by giving more opportunity, is permissible in the Law. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion plan is available with it: Provided further that where the resolution applicant referred to in the first proviso is ineligible under clause (c) of section 29A, the resolution applicant shall be allowed by the committee of creditors such period, not exceeding thirty days, to make payment of overdue amounts in accordance with the proviso to clause (c) of section 29A: Provided also that nothing in the second proviso shall be construed as extension of period for the purposes of the proviso to sub-section (3) of section 12, and the corporate insolvency resolution process shall be completed within the period specified in that sub-section.] [ Provided also that the eligibility criteria in section 29A as amended by the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 (Ord. 6 of 2018) shall apply to the resolution applicant who has not submitted resolution plan as on the date of commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 (Ord. 6 of 2018).] 44. On plain reading of sub-section (4), it is clear that the members of the Committee of Creditors only after considering its feasibility and viability, and such other requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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