9911796707
TMI Blog2019 (2) TMI 1672X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by requisite majority under the provisions of IBC, 2016. 2. The averments of the Application that the Petitioner has filed CA No. 294 of 2018 on 27.07.2018 seeking to replace Respondent No. 1 as the Resolution Professional in CIRP process of the Corporate Debtor and to set aside the claims submitted by Respondent No. 3 to 5 therein to the RP as they have been wrongly inducted as Financial Creditors in the COC. The contents of the said Application may be read as part and parcel of this Application and also for sake of brevity. It is further stated that before filing of the said CA No. 294/2018, the Petitioner also filed another CA No. 250 of 2018 seeking grant of stay on the reconstituted COC by the RP as on 11.07.2018 since RP has wrongfully inducted certain persons as new financial creditors forming part of COC. Pursuant thereto, this Tribunal vide its order dated 16.07.2018 in C/ No. 250/2018 had ordered that inclusion of any new Financia Creditor in the COC shall be subject to the result of the application. 3. It is stated that during the pendency of the CA No. 250/2018, the RP has convened 5th COC meeting on 13.07.2018 with the participation of members of the reconstitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mails to the RP for implementation of resolution No. 7 i.e. conducting the forensic audit. After several follow- ups, the RP to the utter surprise of COC, addresses a mail stating that requisite majority of 66% is not achieved for approving or passing the said resolution in terms of Section 28(3) of the IBC, 2016 and hence forensic audit cannot be carried out. All the emails exchanged in this regard between Petitioner and RP along with the opinion of legal counsel dated 14.08.2018 are annexed as Annexure 2. 6. That the RP applied one formula (for determining the approval of resolution by majority voting share of COC) in respect of Resolution Nos. 1, 2, 3, 5 and 6 and separate formula in respect of Resolution No. 4 and 7 and this classification is totally arbitrary and is not based on any intelligible differentia. However, in order to favour the promoters and some resolution applicants and creditors, the RP is taking decisions as per his whims and fancies and to suit the requirements/ convenience of certain interested parties without understanding its implication. 7. It is averred that the RP always wanted to have full control of VDR (Virtual Data Room) which is managed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d final stage. c. The allegations that the Respondents 3 to 5 were wrongly inducted in the COC are not true and correct and the same are denied. It is further stated that the claims of the Respondent No. 3 to 5 were allowed after proper verification and due scrutiny of the claims as done in the case of other claimants. It is false to allege that this Respondent is trying to delay the disposal of CA No. 294 of 2018 on one pretext or the other. d. The averments that RP continuously tried to convince the COC members to avoid forensic audit citing frivolous reasons are not true and correct as such are denied. It is stated that initially the Petitioner has requested for Forensic Audit for a specified transaction relating to Chennai/ Bangalore property. Subsequently the Petitioner has changed its stand and now asking for Forensic Audit for a period of 5 Years. This has been discussed in the 5th COC meeting and the issues related to forensic Audit but COC could not come to any meaningful conclusion. Therefore it was decided to put this matter for e- voting. e. The Resolution Professional acted in consonance with the provisions of the law and approved the resolutions for which 51% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rement of forensic audit against the largest Creditor nameky M/S. Mahal Hotel Private Limited. , (38 %). The COC including the Petitioner decided to obtain the legal opinion for deciding the issue whether 51% or 66% votings were required and now since he could not get the requisite Percentage the Petitioner is circumventing the process of law by abusing the RP for his own benefit. 9. Heard both Sides. Applicant is Financial Creditor. Applicant is member of COC. Present application is filed seeking to declare that Resolution No.4 & 7 of 5th COC meeting are deemed to have been passed/approved by a requisite majority of members of COC under provisions of I&B Code, 2016. 10. The learned counsel for applicant/FinanciaI Creditor would contend that Resolution No. 4& 7 in the 5th COC Meeting required to be approved with a voting percentage of 51% by virtue of provisions of Sec 21(8) of I&B Code. 11. Counsel would contend the stand taken by Resolution Professional that R4 &7 are to be passed by COC with voting share of 66% by virtue of provisions of Sec 28(3) of I&B Code. 12. The learned counsel for applicant would contend resolution no. 4& 7 do not fall in any of the categories sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess, shall not take any of the following actions without the prior approval of the COC namely:- (m) make changes in the appointment or terms of contract of statutory auditors or internal auditors of the corporate debtor. 28(3) No action under Seb-Section (1) shall be approved by the COC unless approved by a vote of 66% of the voting share. 17. Section 21(8) provides that all decisions of COC shall be taken by a vote of not less than 51% of voting share of Financial Creditors. SO any decision to be approved by Financial Creditors needs not less than 51% of voting share of the Financial Creditors. It is just like a general provision that all matters other than those matters referred to in section 28 of the code require to be approved by a voting of not less than 51 % of voting share of Financial Creditors. If Resolutions No.4&7 fall under any of the categories mentioned in Section 28(1) then inevitably they are to be approved by a vote of not less than 66% of the voting share of Financial Creditors. If they don't fall in any of the clauses of Sec 28(1) then they required to be passed by a vote of not less than 51% of voting share of Financial Creditors. 18. Sec 28(1)(m) de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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