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TMI Blog2019 (4) TMI 1937X X X X Extracts X X X X X X X X Extracts X X X X ..... . Nikhil Ramdev and Mr. Sagar Chakravarty, Advocates for R-4 ORDER SUDHANSU JYOTI MUKHOPADHAYA, J. The appellants, the 'Resolution Professional', 'JM Financial Asset Reconstruction Company Limited' (Financial Creditor) and 'Dr. B.R. Shetty and another' (Resolution Applicants) have preferred these appeal against the common order dated 23rd January, 2019 passed by the Adjudicating Authority (National Company Law Tribunal), Hyderabad Bench, Hyderabad. By the impugned order, the Adjudicating Authority disposed of all the three applications, two preferred by the 'promoter' and another by the 'resolution applicant' and instead of approving the 'resolution plan' already approved by the 'Committee of Creditors' and instead of passing order under Section 31 of the Insolvency and Bankruptcy Code, 2016 (for short the 'I&B Code') have remitted the matter with direction which amounts to initiation of resolution process de novo from the stage of calling of 'Expression of Interest'. 2. For proper appreciation, it is desirable to note the relevant dates as stated below: The application for initiation of 'corporate insolvency resolution process' against 'Sevenhills Healthcare Private Limited' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was further submitted that the total outstanding dues admitted by the 'Resolution Professional' was Rs. 1356.89 crores but the 'Resolution Professional' has fixed the requirement of Earnest Money Deposit (EMD) of Rs. 100 Crores. According to the 'Promoter' it was exorbitant and the conditions of renew/extension and the clause of forfeiture are untenable. Therefore, it was alleged that all the 17 'Potential Resolution Applicants' have backed out. It was further alleged that the fixing of 'Earnest Money Deposit' was completely discouraging to the potential resolution applicants and it is in stark contrast to the other 'corporate insolvency resolution process' which was initiated against M/s. Viceroy Hotels Limited; M/s. Electrosteels Limited and M/s. Essar Steel India Limited. 7. Another Interlocutory Application 410/2018 was filed by 'M/s. Well-Do Holdings and Exports Private Limited', one of the member of the 'Consortium' and 'resolution applicant', who initially expressed its interest for the 'Resolution Plan'. 8. It was alleged by the said 'resolution applicant' that the 'expression of interest' was issued on 14th May, 2018 and prescribing net worth of at least Rs. 200 Crore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irected the 'Resolution Professional' to invite fresh 'expression of interest' and consider the 'resolution plans' in the manner envisaged under the 'I&B Code' and furnish the complete information to the 'resolution applicants'. The 'Resolution Professional' was also directed to take the approval of the 'Committee of Creditors' and ensure that the quantum of 'earnest money deposit' does not exceed any reasonable sum that is based on the total claims admitted or any other valid basis. There shall not be any non-refundable or forfeiture component thereof. 11. Learned counsel appearing on behalf of the appellants submitted that the Adjudicating Authority had no jurisdiction to entertain the Interlocutory Applications at the final stage as the 'resolution plan' had already been approved by the 'Committee of Creditors' or was pending for consideration under Section 31 of the I&B Code. 12. It was further submitted that all the Interlocutory Applications were afterthought and were not filed when the 'expression of interest' were called for and no challenge was made at the appropriate stage. Further according to the appellants, the Adjudicating Authority cannot sit in appeal over the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 fixing 'earnest money deposit' of Rs. 100 Crores. 21. In this background, it was not open for the Adjudicating Authority to entertain Interlocutory Application Nos. 409/2018 and Interlocutory Application Nos. 450/2018, which were filed by the 'shareholders' and 'promoters', who were ineligible to submit the 'resolution plan' and that too after approval of the 'resolution plan' by the 'Committee of Creditors'. 22. Interlocutory Application Nos. 410/2018 filed by 'M/s. Well-Do Holdings and Exports Private Limited', one of the part of consortium is an afterthought. The 'Resolution Professional' has intimated the said applicant on 1st June, 2018 that its eligibility is confirmed and invited the applicant to submit the 'resolution plan' within the period. The 'request for proposal' was made available to the said applicant on 28th June, 2018 and the addendum to the 'request for proposal' was made available on 19th July, 2018. Clause 4.9 relating to the 'earnest money deposit' was there but it was not challenged by the said applicant till August, 2018. The last date for submitting the 'resolution plan' was 9th August, 2018 but the aforesaid 'resolution applicant' had not filed the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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