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TMI Blog2021 (3) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... to the facts of the present case, immediately after NCLT pronounced its judgment on 28.11.2019 and even before the certified copy was made available on 18.12.2019, KIAL had filed writ petition before the Division Bench of the Bombay High Court on 11.12.2019 on the principal ground, that the procedure followed by NCLT was in breach of principles of natural justice. Such a ground could be legitimately pursued before a writ court. In that sense, it was not a proceeding before a wrong court, as such. Perusal of the judgment and order dated 28.1.2020, passed by the Division Bench of the Bombay High Court, which dismissed the writ petition on the ground of availability of alternate and equally efficacious remedy would reveal, that the said writ petition was hotly contested between the parties and by an order running into 32 pages, the Division Bench of the Bombay High Court dismissed the petition relegating the petitioner therein (i.e. KIAL) to avail of an alternate remedy available in law. This Court found, that the petitioner therein had adopted tactics of taking chances by approaching High Court of Delhi, which had no territorial jurisdiction. As such, it was found, that neither th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e NCLT for approval of the resolution plan of Kalpraj. KIAL filed its M.A. No. 1039 of 2019 on 14.3.2019 before the Adjudicating Authority objecting to the approval of resolution plan of Kalpraj. KIAL had objected to participation of any other applicant submitting plan after the due date as per the last Form G and also reiterated its objection, we are of the considered view, that it cannot be held, that having participated by submitting the revised plans, KIAL is estopped from challenging the process on the ground of acquiescence and waiver. Merely because, the revised plans are not submitted with the words without prejudice , in our view, would not make any difference - KIAL had no other option than to submit its revised plans in view of clause 11.2 of the Process Memorandum. Inasmuch as, had it not responded, it had to run the risk of being out of fray - thus, the conduct of the party is relevant for considering, whether it can be held, that a case is made out of waiver or acquiescence. Whether NCLAT was right in law in interfering with the decision of CoC of accepting the resolution plan of Kalpraj? - HELD THAT:- The Committee was of the view, that for deciding key ec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2950 OF 2020 CIVIL APPEAL NO. 847-848 /2021 [D.NO.24125 OF 2020] - - - Dated:- 10-3-2021 - JUSTICE A.M. KHANWILKAR, JUSTICE B. R. GAVAI And JUSTICE KRISHNA MURARI Counsel for the Parties : Ms. Ruby Singh Ahuja, Advocate Ms. Kalpana Unadkat, Advocate Mr. Prateek Kumar, Advocate Ms. Tahira Karanjawala, Advocate Mr. Anupm Prakash, Advocate Ms. Raveena Rai, Advocate Mr. Utkarsh Maria, Advocate Mr. Anmol Jassal, Advocate for M/s KARANJAWALA CO., AOR Mr. Neeraj Kishan Kaul, Sr. Adv. Mr. Suresh D Dobhal, Adv. Mr. Nirmal Goenka, Adv. Mr. Shikhar Kumar, Adv Mr. Gaurav Agrawal, AOR Mr. K. V. Vishwanathan, Sr. Adv. Mr. Dheeraj Nair, Adv. Mr. Varghese Thomas, Adv. Ms. Vishrutyi Sahni, Adv. Mr. Shyam Divan, Sr. Adv. Ms. Pooja Mahajan, Adv. Mr. Avinash Amarnath, Adv. Ms. Mahima Singh, Adv. Ms. Avni Shrivastav, Adv. Mr. Ritesh Kumar, AOR Mr. David Rao, Adv Mr. M. S. Vishnu Sankar, Adv. Mr. Sriram Parakkat, AdvMs. Athira G. Nair, Adv Mr. Atul Sharmafor M/S LAWFIC Mr. Gaurav Agrawal, AOR JUDGMENT B. R. GAVAI, J. 1. Leave to file Civil Appeal in Diary No. 24125 of 2020 is granted. 2. All these appeals, assail the judgment and order of the National Company Law Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pulated in the said document (EOI). As per the said EOI, if any proposed applicant had any queries or clarifications, it was required to write to RP on or before 31.7.2018. The EOI was required to be submitted via email on the email address of RP or via post at the address mentioned in the said invitation on or before 8.8.2018. On the said date i.e. 9.7.2018, analogously, the first Form G also came to be notified. Vide the said Form G , the last date prescribed for submission of Resolution Plan was on or before 21.9.2018. The second Form G came to be issued on 24.8.2018, which required the Resolution Plans to be submitted on or before 28.9.2018. The third Form G came to be issued on 28.9.2018, which required the Resolution Plans to be submitted on or before 25.10.2018. The fourth Form G came to be issued on 9.11.2018, which required the Resolution Plans to be submitted on or before 13.12.2018. The fifth and the last Form G came to be issued on 11.12.2018, which required the Resolution Plans to be submitted on or before 8.1.2019. KIAL, the appellant before NCLAT (respondent No.1 herein) and one Karvy Data Management Systems Limited submitted their Resolution Plans on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Bombay High Court being Writ Petition (L) No.3621 of 2019, challenging the aforesaid two orders passed by NCLT. The High Court dismissed the Writ Petition (L) No.3621 of 2019 filed by KIAL by judgment and order dated 28.1.2020, on the ground, that KIAL had an alternate and efficacious remedy of filing an appeal before NCLAT. KIAL thereafter filed appeals before NCLAT on 18.2.2020. The appeals were opposed by Kalpraj and also by RP on the ground, that the appeals were filed beyond the limitation period prescribed under the I B Code and as such, ought not to be entertained. However, vide order dated 5.8.2020, NCLAT did not find favour with the objections raised by the respondents before it, with regard to limitation and further found, that the procedure adopted by RP and CoC was in breach of the provisions of the I B Code and therefore, allowed the appeals filed by KIAL. Vide the said order, NCLAT, while setting aside both the orders dated 28.11.2019, passed by NCLT, also directed CoC to take a decision afresh, in the light of the directions issued in its order, regarding consideration of the Resolution Plans, which were submitted prior to the prescribed date as per last Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t date i.e. 8.1.2019. He submitted, that in the meantime, Kalpraj submitted its plan on 27.1.2019. He submitted, that in the meeting of CoC held on 30.1.2019, in order to achieve the object of maximization, all the applicants were asked to submit their revised resolution plans. He submitted, that KIAL without demur, submitted its revised plans not only once but twice. It is therefore submitted, that having submitted its revised plans twice, KIAL is now estopped from challenging the acceptance of the plan of Kalpraj. It is submitted, that in the meeting of CoC held on 13/14.2.2019, the plans came to be considered by CoC and CoC by the whopping majority of 84.36% voting rights approved the plan of Kalpraj. He submitted, that only one creditor i.e. Kotak Mahindra Bank Limited (hereinafter referred to as Kotak Bank ), which is a holding company of KIAL, having voting rights of 0.97%, voted in favour of KIAL. 8. Relying on the judgment of this Court in the case of K. Sashidhar vs. Indian Overseas Bank Ors. (2019) 12 SCC 150 , Shri Rohatgi submitted, the opinion on the subject matter expressed by the creditors after due deliberation in CoC meeting through voting, which decision is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed by NCLAT on 5.8.2020, whereunder, Kalpraj has taken various steps for implementation of the Resolution Plan submitted by it. He submitted, that Kalpraj has expended a total amount of ₹ 300 crore (approx.) in the following manner: i. On 02.12.2019, a Public Announcement in respect of delisting of shares and exit offer to the public shareholders of the Corporate Debtor. ii. On 13.12.2019, ₹ 8,87,01,150/( Rupees Eight Crores EightySeven Lakh One Thousand One Hundred and Fifty only) was paid to 668 shareholders in exchange of their shares. iii. On 14.12.2019, a Postoffer public announcement was issued by the Appellants recording inter alia that the said consideration has been paid to public shareholders. iv. On 20.12.2019, BSE issued a notice in respect of discontinuation of trading and delisting of equity shares of the Corporate Debtor. v. On 23.12.2019, debentures worth ₹ 21 crores were issued by the Corporate Debtor to Appellants. vi. On 27.12.2019, the share capital of the Company increased to INR. 100,00,00,000/( Rupees One Hundred Crores only). vii. Minosha Digital Solutions Pvt. Ltd. merged with the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned single Member, thereafter the proceedings would itself show, that the said application was listed before two learned Members on various dates along with main application i.e. M.A. No.691 of 2019. He submitted, that the counsels for KIAL have participated in the said proceedings before the Bench of two Members without demur. He submitted, that in any case, both, the application filed by KIAL as well as the main application filed by RP, were required to be decided together inasmuch as, the issues were interconnected and therefore, they are rightly decided by the orders passed on the same day. He therefore submitted, that the finding of NCLAT with regard to violation of the principles of natural justice is without any merit. 12. Shri Rohatgi therefore submitted, that the appeals deserve to be allowed, the order of NCLAT be set aside and that of NCLT be restored. SUBMISSIONS BY DR. ABHISHEK MANU SINGHVI, LEARNED SENIOR COUNSEL APPEARING FOR KALPRAJ 13. Dr. Abhishek Manu Singhvi, learned Senior Counsel also appeared on behalf of Kalpraj, which is also respondent in the other appeals. Dr. Singhvi submitted, that KIAL, in the covering letter along with its Resoluti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 84) 2 SCC 680 (PARA 33), in this regard. 15. Dr. Singhvi further submitted, that Section 238 of the I B Code provides, that the provisions of the Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. He therefore submitted, that the provisions as contained in Section 61(2) of the I B Code, which provides, that an appeal has to be filed within 30 days with a further enhanced period of 15 days, when NCLAT is satisfied, that a sufficient cause existed for not filing the appeal within 30 days, has to be strictly construed. He relied on the judgment of NCLAT in the case of Kumar Dutta prop. K.D. Trading vs. Simplex Infrastructure Ltd 2019 SCC Online NCLAT 575 and Asha Goyal vs. Pharma Traders Pvt. Ltd . 2019 SCC Online NCLAT 150 in that regard. 16. Dr. Singhvi further submitted, that this Court in a catena of cases has held, that when under special statutes there is a provision for appeal and a selfcontained provision for limitation, no extension would be possible beyond the period of time so stipulated. He relied on the following judgments of this Court in this regard. (i) Union of India vs. Popular Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o prejudice is caused to KIAL on account of deviation of the procedure, if any. In this regard, he relied on the judgment of this Court in the case of G.J. Fernandez vs. State of Karnataka Ors. (1990) 2 SCC 488. SUBMISSION OF SHRI SHYAM DIVAN, LEARNED SENIOR COUNSEL APPEARING FOR RP 21. Shri Shyam Divan, learned Senior Counsel appearing on behalf of RP submitted, that RP had acted bona fide in order to fetch the maximum benefit to the Company. He submitted, that even after the prescribed last date, in view of clause 10.4 of the Process Memorandum, RP was entitled to consider the plans received subsequently with the approval of CoC. He submitted, that RP therefore had bona fide accepted the plan of Kalpraj and not only that but had also given an opportunity to KIAL to submit its revised plans, so as to compete with Kalpraj. Shri Divan also advanced the arguments on similar lines as were advanced by the other counsel on the grounds of limitation, acquiescence, etc. SUBMISSION OF SHRI C.A. SUNDARAM, LEARNED SENIOR COUNSEL APPEARING FOR FOURTH DIMENSION SOLUTIONS LIMITED 22. Shri C.A. Sundaram, learned Senior Counsel appearing for Fourth Dimension Solutions Limited, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 226 of the Constitution and in a given case it can entertain a petition under Article 226 in spite of the availability of an alternate and efficacious remedy. He submitted, that this Court itself in a catena of cases has carved out categories wherein, the High Court is entitled to exercise its jurisdiction under Article 226 in spite of the availability of alternate remedy. He submitted, that one such category is where the proceedings challenged before the High Court are proceeded in breach of principles of natural justice. The learned Senior Counsel has relied on the following judgments of this Court in support of this proposition. (i) Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai Ors. (1998) 8 SCC 1 , (ii) Babu Ram Prakash Chandra Maheshwari vs. Antarim Zilla Parishad Muzaffar Nagar (1969) 1 SCR 518 ; and (iii) Nivedita Sharma vs. Cellular Operators Association of India Ors. (2011) 14 SCC 337 25. Shri Kaul submitted, that perusal of the record would reveal, that immediately after the filing of application by RP before NCLT for approval of Resolution Plans submitted by Kalpraj, KIAL had filed an application objecting thereto being M.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating KIAL to alternate remedy available in law has passed an elaborate order. Learned Senior Counsel therefore submitted, that it does not lie in the mouth of the appellants, that KIAL had not approached the High Court bona fide. Learned Senior Counsel submitted, that in view of various judgments delivered by this Court, the High Court could have entertained a petition under Article 226, when the proceedings were conducted in breach of the principles of natural justice. 27. Shri Kaul, learned Senior Counsel therefore submitted, that NCLAT was right in law in giving the benefit of the period for which KIAL was bona fide prosecuting its writ petition before the Bombay High Court. Learned Senior Counsel submitted, that if that period is considered, the appeals filed by KIAL are very well within the limitation. 28. Learned Senior Counsel submitted, that the purpose behind Article 14 of the Limitation Act is to advance justice and not to halt justice. He submitted, that Section 14 enables a party to get the benefit of the period for which it was bona fide prosecuting the remedy before a wrong forum. Learned counsel submitted, that a liberal approach is required to be given to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted, that the contention, that KIAL was taking chances is also totally incorrect. It had objected to the participation of Kalpraj at the very first opportunity and continued to object till CoC approved its plan and also thereafter, by way of an application before NCLT objecting to the approval of the Resolution Plan of Kalpraj. 31. Learned counsel further submitted, that the contention, that KIAL is a subsidiary of Kotak Bank and that Kotak Bank had also not objected to Kalpraj submitting its Resolution Plan and therefore the same amounted to acquiescence is also not correct. He submitted, that firstly, in the reply filed by RP to the application filed by KIAL in NCLT, there is no plea regarding the Kotak Bank s consensus. He however submitted, that in any case in view of the judgment of this Court in the case of Vodafone International Holdings BV vs. Union of India Anr. (2012) 6 SCC 613, both KIAL and Kotak Bank are different corporate entities and any act of Kotak Bank cannot bind KIAL. 32. On merits, Shri Kaul would submit, that the entire process adopted by RP and CoC was contrary to the statutory provisions, fair play and transparency. He submitted, that perusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed their plans and revised plans within the stipulated period. 35. In view of the rival submissions, following questions arise for our consideration. (i) Whether the appeals filed by KIAL before NCLAT were within limitation? (ii) Whether there was waiver and acquiescence by KIAL, so as to estop it from challenging the participation of Kalpraj? (iii) Whether NCLAT was right in law in interfering with the decision of CoC of accepting the resolution plan of Kalpraj? (i) WHETHER THE APPEALS FILED BY KIAL BEFORE NCLAT WERE WITHIN LIMITATION? 36. For appreciating the rival contentions in this regard, it would be appropriate to refer to Section 29(2) of the Limitation Act, so also the provisions of Section 61 and Section 238A of the I B Code. Section 29(2) of the Limitation Act. 29. Savings.-(1) . (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity, NCLAT, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, where a period of limitation for initiation of proceedings is provided under any special or local law, different from the period prescribed by the Schedule, the provisions of Section 3 shall apply, as if such period were the period prescribed by the Schedule. It would further reveal, that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive), shall apply only in so far, and to the extent to which, they are not expressly excluded by such special or local law. 38. An appeal is provided before NCLAT under subsection (1) of Section 61 of the I B Code to any person, who is aggrieved by the order of the Adjudicating Authority. Subsection (2) of Section 61 of the I B Code provides, that every appeal under subsection (1) shall be filed within thirty days before NCLAT. The proviso thereto further provides, that NCLAT may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied, that there was sufficient cause for not filing the appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AL, that since the order passed by NCLT was passed in utter breach of the principles of natural justice, it had bona fide filed a writ petition before the Division Bench of the Bombay High Court. It is urged, that by an elaborate order the writ petition came to be dismissed, on the ground of availability of alternate remedy. It is therefore urged, that the provisions of Section 14 or at least the principles laid down therein, would be available to KIAL and as such, the appeals, as filed will have to be held to be within limitation. 43. Therefore, the crucial question, that arises for consideration, is as to whether the provisions of Section 14 of the Limitation Act or the principles laid down therein would be available to KIAL for exclusion of the period during which it was prosecuting the writ petition before the Division Bench of the Bombay High Court. 44. It will be relevant to refer to Section 14 of the Limitation Act. 14. Exclusion of time of proceeding bona fide in court without jurisdiction.-(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue; and (5) Both the proceedings are in a court. 46. Perusal of the aforesaid conditions would make it amply clear, that one of the conditions that is required to be fulfilled is that both the proceedings are in a court. The question as to whether the provisions of Section 14 of the Limitation Act would also be applicable to the quasijudicial forums as against the court, fell for consideration before this Court in the case of M.P. Steel Corporation (supra). This Court after an elaborate survey of the various judgments of this Court, including judgment in the cases of Bharat Bank Ltd., Delhi vs. Employees of the Bharat Bank Ltd., Delhi AIR 1950 SC 188 = 1950 SCR 459, Town Municipal Council, Athani vs. Presiding Officer, Labour Courts, Hubli and others etc. (1969) 1 SCC 873, Nityananda M. Joshi and others vs. Life Insurance Corporation of India and others (1969) 2 SCC 199, Commissioner of Sales Tax. U.P., Lucknow vs. Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representatives of the people enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words as observed by Crawford in his book on Statutory Constructions that the entire legislative process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation. Consequently where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the lawmakers. In the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent. 39. This is why the principles of Section 14 were applied in J. Kumaradasan Nair v. Iric Sohan [(2009) 12 SCC 175 : (2009) 4 SCC (Civ) 656] to a revision application filed before the High Court of Kerala. The Court held: (SCC pp. 18081, paras 1618) 16. The provisions co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrong forum. It has been observed, that the legislature has enacted Section 14 to exempt a certain period covered by a bona fide litigious activity. It has been held, that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded. It could thus be seen, that this Court has in unequivocal terms held, that when a litigant bona fide under a mistake litigates before a wrong forum, he would be entitled for exclusion of the period, during which he was bona fide prosecuting such a wrong remedy. Though strictly, the provisions of Section 14 of the Limitation Act would not be applicable to the proceedings before a quasijudicial Tribunal, however, the principles underlying the same would be applicable i.e. the proper approach will have to be of advancing the cause of justice, rather than to abort the proceedings. 52. An argument similar to the one which is advanced before us, that since the Code is a complete Code in itself, the limitation as provided only under the Code would govern the field and would exclude the application of provisions of Section 14 of the Limitation Act was made in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the limitation period of three months for the application under Section 34(1) of the AC Act, the time during which the applicant was prosecuting such application before the wrong court is excluded, provided the proceeding in the wrong court was prosecuted bona fide, with due diligence. Western Builders [State of Goa v. Western Builders, (2006) 6 SCC 239] therefore lays down the correct legal position. 43. Merely because Parson Tools [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743] also dealt with a provision in a tax statute does not make the ratio of the said decision apply to a completely differently worded tax statute with a much shorter period of limitation- Section 128 of the Customs Act. Also, the principle of Section 14 would apply not merely in condoning delay within the outer period prescribed for condonation but would apply dehors such period for the reason pointed out in Consolidated Engg. [(2008) 7 SCC 169] above, being the difference between exclusion of a certain period altogether under Section 14 principles and condoning delay. As has been pointed out in the said judgment, when a certain period is excluded by applying the principles contained in Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time taken in prosecuting proceedings which are bona fide and pursued with due diligence but which end without a decision on the merits of the case. 54. Coming to the facts of the present case, immediately after NCLT pronounced its judgment on 28.11.2019 and even before the certified copy was made available on 18.12.2019, KIAL had filed writ petition before the Division Bench of the Bombay High Court on 11.12.2019 on the principal ground, that the procedure followed by NCLT was in breach of principles of natural justice. Such a ground could be legitimately pursued before a writ court. In that sense, it was not a proceeding before a wrong court, as such. Perusal of the judgment and order dated 28.1.2020, passed by the Division Bench of the Bombay High Court, which dismissed the writ petition on the ground of availability of alternate and equally efficacious remedy would reveal, that the said writ petition was hotly contested between the parties and by an order running into 32 pages, the Division Bench of the Bombay High Court dismissed the petition relegating the petitioner therein (i.e. KIAL) to avail of an alternate remedy available in law. 55. Perusal of the memo of the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictional High Court i.e. this Hon ble Court. The issue involved is not in respect of this matter but also in respect of day to day functioning of the Tribunal and the manner in which such issues are being dealt with by the Tribunal. Therefore, Petitioner is exercising Writ Jurisdiction of this Hon ble Court. 58. It could thus clearly be seen, that the petitioner therein i.e. KIAL has specifically stated, that though it had an alternate remedy of filing an appeal before NCLAT, since the petition was not just about the merits of the impugned order, but also in respect of functioning of the Tribunal the petitioner was invoking the writ jurisdiction of the Court. 59. By now, it is a settled principle of law, that non-exercise of jurisdiction by the High Court under Article 226 of the Constitution is not a hard and fast rule, but a rule of selfrestraint. As early as in 1969, in the case of Babu Ram Prakash Chandra Maheshwari (supra), this Court observed thus: It is a well established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of caselaw on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. 63. A similar view has been reiterated in the judgment of this Court in the case of Nivedita Sharma vs. Cellular Operators Association of India (supra). 64. In the present case, perusal of the writ petition would reveal, that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of its main objectives the need to minimise the supervisory role of courts in the arbitral process [ Para 4(v) of the Statement of Objects and Reasons of the Arbitration and Conciliation Act, 1996] . This objective has found expression in Section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms: 5. Extent of judicial intervention.- Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. 67. It must be noticed, that the judgment in the case of Popular Construction Co. (supra) was considered by this Court by a Bench consisting of three Judges in the case of Consolidated Engineering Enterprises (supra) wherein, the question with regard to applicability of Section 14 of the Limitation Act to an application under Section 34(3) of the Arbitration Act fell for consideration. In Consolidated Engineering Enterprises (supra), the appellant before this Court was an enterprise engaged in civil engineering construction as well as development of infrastructure. It entered into an agreement with the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 8 SCC 470] the Court should hold that the provisions of Section 14 of the Limitation Act would not apply to an application filed under Section 34 of the Act, is devoid of substance. In the said decision what is held is that Section 5 of the Limitation Act is not applicable to an application challenging an award under Section 34 of the Act. Section 29(2) of the Limitation Act inter alia provides that where any special or local law prescribes, for any application, a period of limitation different from the period prescribed by the Schedule, the provisions contained in Sections 4 to 24 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. On introspection, the Division Bench of this Court held that the provisions of Section 5 of the Limitation Act are not applicable to an application challenging an award. This decision cannot be construed to mean as ruling that the provisions of Section 14 of the Limitation Act are also not applicable to an application challenging an award under Section 34 of the Act. As noticed earlier, in the Act of 1996, there is no express provision excluding application of the provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from operating by way of limitation, have to be added to what is primarily the period of limitation prescribed. 71. Raveendran, J. (as His Lordship then was) in his concurring judgment observed thus: 54. On the other hand, Section 14 contained in Part III of the Limitation Act does not relate to extension of the period of limitation, but relates to exclusion of certain period while computing the period of limitation. Neither subsection (3) of Section 34 of the AC Act nor any other provision of the AC Act exclude the applicability of Section 14 of the Limitation Act to applications under Section 34(1) of the AC Act. Nor will the proviso to Section 34(3) exclude the application of Section 14, as Section 14 is not a provision for extension of period of limitation, but for exclusion of certain period while computing the period of limitation. Having regard to Section 29(2) of the Limitation Act, Section 14 of that Act will be applicable to an application under Section 34(1) of the AC Act. Even when there is cause to apply Section 14, the limitation period continues to be three months and not more, but in computing the limitation period of three months for the application unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment also considered the applicability of Section 5 of the Limitation Act to an appeal to the Appellate Tribunal provided under Section 421(3) and 433 of the Companies Act, 2013. 78. The judgment of this Court in the case of Neeraj Jhanji (supra) would not be applicable to the facts of the present case. In the said case, the petitioner had initially filed a writ petition before the Delhi High Court against the orderinoriginal passed by the Commissioner of Customs, Kanpur. Delhi High Court converted the writ petition into a statutory appeal under the Customs Act, 1962 by order dated 9112009. On 992010 the Revenue raised an objection about the territorial jurisdiction of that Court. On 512012 the petitioner withdrew the appeal with liberty to approach the jurisdictional High Court and then filed a statutory appeal before the Allahabad High Court after a delay of 697 days. It will be relevant to refer to the following observations in Neeraj Jhanji (supra): 3. The very filing of writ petition by the petitioner in the Delhi High Court against the order-in-original passed by the Commissioner of Customs, Kanpur indicates that the petitioner took a chance in approaching the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id judgment. 32. There is another reason why the benefit of Section 14 of the Limitation Act cannot be extended to the appellants. All of them are well conversant with various statutory provisions including FEMA. One of them was declared a notified person under Section 3(2) of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 and several civil and criminal cases are pending against him. The very fact that they had engaged a group of eminent advocates to present their cause before the Delhi and the Bombay High Courts shows that they have the assistance of legal experts and this seems to be the reason why they invoked the jurisdiction of the Delhi High Court and not of the Bombay High Court despite the fact that they are residents of Bombay and have been contesting other matters including the proceedings pending before the Special Court at Bombay. It also appears that the appellants were sure that keeping in view their past conduct, the Bombay High Court may not interfere with the order of the Appellate Tribunal. Therefore, they took a chance before the Delhi High Court and succeeded in persuading the learned Single Judge of the Court to ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayer for stay of further proceedings before the Appellate Tribunal. This Court further observed, that the promptness with which the statement was made on behalf of the appellants, that the writ petition may be converted into an appeal was a clear indication of the appellant's unwillingness to avail remedy before the High Court of Bombay which had the exclusive jurisdiction to entertain an appeal under Section 35 of the Act. 83. In the present case, the facts are totally contrary. KIAL had approached the High Court of Bombay making a specific grievance, that NCLT had adopted a procedure which was in breach of the principles of natural justice. It is specifically mentioned in the writ petition, that though an alternate remedy was available to it, it was approaching the High Court since the issue with regard to functioning of NCLT also fell for consideration. The proceedings before the High Court were hotly contested and by an elaborate judgment, the High Court dismissed the writ petition relegating the petitioner therein i.e. KIAL to an alternate remedy available in law. It is thus apparently clear, that KIAL was bona fide prosecuting a remedy before the High Court in good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discretion, may request for additional information/documents and/or seek clarification from the resolution applicant after the due date for submission of the plan. It is further submitted, that delay in submission of additional information and/or documents sought by RP, CoC or the Process Manager would entitle RP, CoC or the Process Manager to reject the resolution plan. 87. It was further submitted by the appellants, that KIAL, in a letter submitted along with the resolution plan to RP, had expressly waived any and all claims with respect to the Resolution Plan Process. Not only that, but KIAL had submitted its revised plans twice after Kalpraj was permitted to participate in the proceedings. It is therefore submitted, that since KIAL had expressly waived all its claims and had also submitted its revised plans, after Kalpraj entered into the fray, it was not entitled to raise any grievance. It is submitted, that the principles of waiver and acquiescence are squarely applicable in the present case. It was also submitted on behalf of the appellants, that the revised plans, submitted by KIAL, were submitted without mentioning, that it was without prejudice and as such, it was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aph 5(b) of the covering letter for submission of resolution plan by KIAL, it is sought to be urged, that KIAL had unconditionally and irrevocably agreed and accepted the terms of the Process Memorandum and the decision made by CoC, RP and/or the Adjudicating Authority in respect of any matter with respect to, or arising out of, the Process Memorandum and the Resolution Plan Process. It is further sought to be urged, that KIAL had agreed to surrender all and any of its claim in respect of the Resolution Plan Process. It is sought to be urged, that this stipulation amounts to a concluded contract between the parties and having waived its all claims, KIAL is not permitted in law to challenge the participation of Kalpraj in respect of Resolution Plan Process. 93. In this respect, it will be relevant to refer to paragraphs 89 and 90 of the judgment of this Court in the case of Central Inland Water Transport Corporation Limited and another vs. Brojo Nath Ganguly and another (1986) 3 SCC 156. 89. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances. [emphasis supplied] 94. This Court has held, that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It has been held, that this principle will apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Pioneer Urban Land and Infrastructure Limited vs. Govindan Raghavan (2019) 5 SCC 725 while construing the term of contract between a builder and a flat purchaser observed thus: 6.8. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the agreement dated 852012 are ex facie one sided, unfair and unreasonable. The incorporation of such one sided clauses in an agreement constitutes an unfair trade practice as per Section 2(1)(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the builder. 99. We see no reason, as to why the said principle should not be applicable when RP and CoC are acting under the statutory provisions under the Code. 100. We are therefore of the view, in light of the law laid down in Central Inland Water Transport Corporation Limited (supra), KIAL cannot be held to be bound by such unconscionable clause in the letter, which is in a prescribed format. 101. The second ground raised, with regard to waiver and acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ress, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it. 104. For considering, as to whether a party has waived its rights or not, it will be relevant to consider the conduct of a party. For establishing waiver, it will have to be established, that a party expressly or by its conduct acted in a manner, which is inconsistent with the continuance of its rights. However, the mere acts of indulgence will not amount to waiver. A party claiming waiver would also not be entitled to claim the benefit of waiver, unless it has altered its position in reliance on the same. 105. As early as in 1957 in the case of Manak Lal vs. Dr. Prem Chand 1957 SCR 575 = AIR 1957 SC 425 an advocate was held guilty for professional misconduct by a Tribunal of Three Members. The matter was argued before the High Court. An objection was taken before the High Court, that one of the members had appeared on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Disputes Act, 1947, so also on the ground of insufficiency of the amount of compensation paid to the appellant in terms of Section 25F( b) thereof. An industrial dispute was raised before the Assistant Labour Commissioner, which failed, whereupon the Industrial Tribunal was approached by the appellant. In the meantime, the appellant had also initiated a proceeding under Section 33C( 2) of the Industrial Disputes Act, 1947 which ended in an amicable settlement, according to which, the appellant agreed to receive a sum of ₹ 39,000/as full and final settlement. 109. However, in the proceedings initiated by the trade union, the retrenchment was held to be illegal and he was directed to be deemed to be in continuous service with all benefits. A writ petition was filed by the respondent before the High Court. The said writ petition was dismissed by the single judge of the High Court, upholding the findings of the Tribunal. In an appeal before the Division bench, a plea was taken for the first time, that the workman had accepted the amount paid by the employer and as such, it amounted to waiver by the workman. The Division Bench allowed the appeal and set aside the award passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of such official. The Court further observed that: (SCC p. 431, para 8) 8. waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. 38. Thus, in a given case if a party knows the material facts and is conscious of his legal rights in that matter, but fails to take the plea of bias at the earlier stage of the proceedings, it creates an effective bar of waiver against him. In such facts and circumstances, it would be clear that the party wanted to take a chance to secure a favourable order from the official/court and when he found that he was confronted with an unfavourable order, he adopted the device of raising the issue of bias. The issue of bias must be raised by the party at the earliest. (See Pannalal Binjraj v. Union of India [AIR 1957 SC 397] and P.D. Dinakaran (1) v. Judges Enquiry Committee [(2011) 8 SCC 380] .) 39. In Power Control Appliances v. Sumeet Machines (P) Ltd. [(1994) 2 SCC 448] this Court held as under: (SCC p. 457, para 26) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise in the case. Admittedly, the tenants were not parties to the earlier proceedings. There is, therefore, no question of waiver of rights by Respondents 4 - 7 nor would this disentitle the tenants from maintaining the writ petition. 43. Thus, from the above, it is apparent that the issue of bias should be raised by the party at the earliest, if it is aware of it and knows its right to raise the issue at the earliest, otherwise it would be deemed to have been waived. However, it is to be kept in mind that acquiescence, being a principle of equity must be made applicable where a party knowing all the facts of bias, etc. surrenders to the authority of the Court/Tribunal without raising any objection. Acquiescence, in fact, is sitting by, when another is invading the rights. The acquiescence must be such as to lead to the inference of a licence sufficient to create rights in other party. 112. Thus, for constituting acquiescence or waiver it must be established, that though a party knows the material facts and is conscious of his legal rights in a given matter, but fails to assert its rights at the earliest possible opportunity, it creates an effective bar of waiver agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued on 17.8.2018. However, since there was no response, four more Form G were issued on various dates. The last of such Form G was issued on 11.12.2018, according to which the last date for submission of resolution plan was 8.1.2019. KIAL submitted its resolution plan on 8.1.2019. Subsequently, Kalpraj submitted its resolution plan on 27.1.2019. 117. On KIAL coming to know about the same, on 29.1.2019 itself, it had sent an email protesting to RP against acceptance of belated resolution plan of Kalpraj. The said email dated 29.1.2019 sent by KIAL to RP reads thus: As you are aware, that the last date for submission of the bids for Ricoh India Limited, under the CIRP was 8th January, 2019. Consequently, we duly submitted our bid (along with the requisite Bid Bond Guarantee) within the said time. However, we are given to understand that you have been receiving and accepting the bids even after the said date, when no extension of time (filing of Form G ) was notified. This severely jeopardises our position and is against the spirit of the code, especially when our Resolution Plan was opened immediately (along with the commercials) and subsequently, even disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrimination or departure from the established law are found. We would request a quick response to our query from you on the subject. 121. In the said email dated 10.2.2019 sent by KIAL, it was stated, that it has been quite sometime, that it had sought a response from RP on his decision to accept another resolution plan well after the expiry of the deadline for submission of the same. It was reiterated, that such an action, after opening of the bids and having detailed discussions on the same was not only prejudicial to its interest but against the spirit of the I B Code. It was reiterated, that the I B Code, provides equal treatment to all potential resolution applicants within the framework of law and fixes personal responsibilities upon CoC members and RPs in the event of instances of discrimination or departure from the established law. 122. Perusal of the record would reveal, that RP had replied to KIAL by email dated 11.2.2019. It was stated in the said email, that his act of acceptance of resolution plans, submitted after the due date, was under the overall supervision of CoC and as per the opinion given by CoC s legal counsel and RP s legal counsel. It was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was held, that the words without prejudice would have no significance. As such, the said case would not be applicable to the facts of the present case. 128. Reliance placed on the judgment of this Court in the case of Tarapore and Company (supra) would also not be of any assistance to the case of the appellants. It will be relevant to refer to the following observations of this Court in the said case. Apart from the technical meaning which the expression without prejudice carries depending upon the context in which it is used, in the present case on a proper reading of the correspondence and in the setting in which the term is used, it only means that the respondent reserved to itself the right to contend before the arbitrator that a dispute raised or the claim made by the contractor was not covered by the arbitration clause. No other meaning can be assigned to it. An action taken without prejudice to one's right cannot necessarily mean that the entire action can be ignored by the party taking the same. 129. That leaves us with the last submission in this regard made on behalf of the appellants. It is submitted, that Kotak Bank had participated in the 12th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dies. In any case, the appellants had also not been in a position to establish, that on account of any such waiver or acquiescence any of the appellants had altered their position to their detriment. 134. As such, it cannot be held, that KIAL had waived or acquiesced its rights to challenge the decision of RP or CoC. (iii) WHETHER NCLAT WAS RIGHT IN LAW IN INTERFERING WITH THE DECISION OF COC OF ACCEPTING THE RESOLUTION PLAN OF KALPRAJ? 135. For deciding the said issue, it will be apposite to refer to Section 30 and 31 of the I B Code, which read thus: 30. Submission of resolution plan.-(1) A resolution applicant may submit a resolution plan along with an affidavit stating that he is eligible under Section 29A to the resolution professional prepared on the basis of the information memorandum. (2) The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan- (a) provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the payment of other debts of the corporate debtor; (b) provides for the payment of debts of operational creditors in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The resolution professional shall present to the committee of creditors for its approval such resolution plans which con firm the conditions referred to in subsection (2). (4) The committee of creditors may approve a resolution plan by a vote of not less than sixty six per cent of voting share of the financial creditors, after considering its feasibility and viability, the manner of distribution proposed, which may take into account the order of priority amongst creditors as laid down in subsection (1) of Section 53, including the priority and value of the security interest of a secured creditor] and such other requirements as may be specified by the Board: Provided that the committee of creditors shall not approve a resolution plan, submitted before the commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2017, where the resolution applicant is ineligible under Section 29A and may require the resolution professional to invite a fresh resolution plan where no other resolution 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 resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After the order of approval under subsection (1),- (a) the moratorium order passed by the Adjudicating Authority under Section 14 shall cease to have effect; and (b) the resolution professional shall forward all records relating to the conduct of the corporate insolvency resolution process and the resolution plan to the Board to be recorded on its database. (4) The resolution applicant shall, pursuant to the resolution plan approved under subsection (1), obtain the necessary approval required under any law for the time being in force within a period of one year from the date of approval of the resolution plan by the Adjudicating Authority under subsection (1) or within such period as provided for in such law, whichever is later: Provided that where the resolution plan contains a provision for combination, as referred to in Section 5 of the Competition Act, 2002 (12 of 2003), the resolution applicant shall obtain the approval of the Competition Commission of India under that Act prior to the approval of such resolution plan by the committee of creditors. 136. The aforesaid provisions have been recently considered in three judgments of this Court. The first o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h three additional requirements. The first is that the solution must explicitly require the repayment of any interim finance and costs of the insolvency resolution process will be paid in priority to other payments. Secondly, the plan must explicitly include payment to all creditors not on the creditors committee, within a reasonable period after the solution is implemented. Lastly, the plan should comply with existing laws governing the actions of the entity while implementing the solutions. *** 5.3.1. Steps at the start of the IRP *** 4. Creation of the creditors committee The creditors committee will have the power to decide the final solution by ma134 jority vote in the negotiations. The majority vote requires more than or equal to 75 per cent of the creditors committee by weight of the total financial liabilities. The majority vote will also involve a cram down option on any dissenting creditors once the majority vote is obtained. The Committee deliberated on who should be on the creditors committee, given the power of the creditors committee to ultimately keep the entity as a going concern or liquidate it. The Committee reasoned that memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditors. It has been observed, that the evaluation of proposals to keep the entity as a going concern, including decisions about the sale of business or units, restructuring of debt, etc., are required to be taken by the Committee of the Financial Creditors. It has been provided, that the choice of the solution to keep the entity as a going concern will be voted upon by CoC and there are no constraints on the proposals that the resolution professional can present to CoC. The requirements, that the resolution professional needs to confirm to the Adjudicator, are: (i) that the solution must explicitly require the repayment of any interim finance and costs of the insolvency resolution process will be paid in priority to other payments; (ii) that the plan must explicitly include payment to all creditors not on the creditors committee, within a reasonable period after the solution is implemented; and lastly (iii) the plan should comply with existing laws governing the actions of the entity while implementing the solutions. 139. The Committee also expressed the opinion, that there should be freedom permitted to the overall market, to propose solutions on keeping the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he earlier regime, the corporate debtor could indefinitely continue to enjoy the protection given under Section 22 of the Sick Industrial Companies Act, 1985 or under other such enactments which has now been forsaken. Besides, the commercial wisdom of CoC has been given paramount status without any judicial intervention, for ensuring completion of the stated processes within the timelines prescribed by the I B Code. There is an intrinsic assumption that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan. They act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. The opinion on the subjectmatter expressed by them after due deliberations in CoC meetings through voting, as per voting shares, is a collective business decision. The legislature, consciously, has not provided any ground to challenge the commercial wisdom of the individual financial creditors or their collective decision before the adjudicating authority. That is made nonjusticiable. (emphasis supplied) 142. This Court has held, that it is not open to the Adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolution applicant which may also result in a consequent reduction of amounts payable to other financial and operational creditors. What is important is that it is the commercial wisdom of this majority of creditors which is to determine, through negotiation with the prospective resolution applicant, as to how and in what manner the corporate resolution process is to take place. (emphasis supplied) 144. This Court held, that what is left to the majority decision of CoC is the feasibility and viability of a resolution plan, which is required to take into account all aspects of the plan, including the manner of distribution of funds among the various classes of creditors. It has further been held, that CoC is entitled to suggest a modification to the prospective resolution applicant, so that carrying on the business of the Corporate Debtor does not become impossible, which suggestion may, in turn, be accepted by the resolution applicant with a consequent modification as to distribution of funds, etc. It has been held, that what is important is, the commercial wisdom of the majority of creditors, which is to determine, through negotiation with the prospective resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceptions about the general capability of the resolution applicant to translate the projected plan into a reality. The resolution applicant may have given projections backed by normative data but still in the opinion of the dissenting financial creditors, it would not be free from being speculative. These aspects are completely within the domain of the financial creditors who are called upon to vote on the resolution plan under Section 30(4) of the I B Code. 147. It has been held, that in an enquiry under Section 31, the limited enquiry that the Adjudicating Authority is permitted is, as to whether the resolution plan provides: (i) the payment of insolvency resolution process costs in a specified manner in priority to the repayment of other debts of the corporate debtor, (ii) the repayment of the debts of operational creditors in prescribed manner, (iii) the management of the affairs of the corporate debtor, (iv) the implementation and supervision of the resolution plan, (v) the plan does not contravene any of the provisions of the law for the time being in force, (vi) conforms to such other requirements as may be specified by the Board. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court in Committee of Creditors of Essar Steel India Limited through Authorised Signatory (supra) after reproducing certain paragraphs in K. Sashidhar (supra) observed thus: Thus, it is clear that the limited judicial review available, which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors, has to be within the four corners of Section 30(2) of the Code, insofar as the Adjudicating Authority is concerned, and Section 32 read with Section 61(3) of the Code, insofar as the Appellate Tribunal is concerned, the parameters of such review having been clearly laid down in K. Sashidhar 152. It can thus be seen, that this Court has clarified, that the limited judicial review, which is available, can in no circumstance trespass upon a business decision arrived at by the majority of CoC. 153. In the case of Maharashtra Seamless Limited (supra), NCLT had approved the plan of appellant therein with regard to CIRP of United Seamless Tubulaar (P) Ltd. In appeal, NCLAT directed, that the appellant therein should increase upfront payment to ₹ 597.54 crore to the financial creditors , operational creditors and other cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar, that the legislative scheme, as interpreted by various decisions of this Court, is unambiguous. The commercial wisdom of CoC is not to be interfered with, excepting the limited scope as provided under Sections 30 and 31 of the I B Code. 156. No doubt, it is sought to be urged, that since there has been a material irregularity in exercise of the powers by RP, NCLAT was justified in view of the provisions of clause (ii) of subsection (3) of Section 61 of the I B Code to interfere with the exercise of power by RP. However, it could be seen, that all actions of RP have the seal of approval of CoC. No doubt, it was possible for RP to have issued another Form G , in the event he found, that the proposals received by it prior to the date specified in last Form G could not be accepted. However, it has been the consistent stand of RP as well as CoC, that all actions of RP, including acceptance of resolution plans of Kalpraj after the due date, albeit before the expiry of timeline specified by the I B Code for completion of the process, have been consciously approved by CoC. It is to be noted, that the decision of CoC is taken by a thumping majority of 84.36%. The only creditor vot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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