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TMI Blog2021 (5) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of the Hon'ble NCLAT passed in the matter of MR. DEVARAJAN RAMAN, RESOLUTION PROFESSIONAL, POONAM DRUM CONTAINERS PVT. LTD. VERSUS BANK OF INDIA LTD. [ 2020 (7) TMI 758 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] that the fees of the RP is not the commercial wisdom of the CoC. This Bench hereby directs to proportionately distribute the said amount of ₹ 3 Crores among the employees/operational creditors/unsecured creditors - Application dismissed. - M.A. No. 391 of 2020 in C.P. (IB) No. 2714 of 2018 - - - Dated:- 23-3-2021 - H.V. Subba Rao, Member (J) and Shyam Babu Gautam, Member (T) For Appearing Parties : RMG Law Associates and Chintan Gandhi, RP ORDER H.V. Subba Rao, Member (J) 1. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el stated that thereafter, a COC meeting scheduled to be held on 12.11.2019 was adjourned to 13.11.2019 (Adjourned 20th CoC meeting) to decide the fate of the CIRP by putting the resolution plans received by the RP to vote and to finalize the distribution matrix. He mentioned that on the Adjourned 20th CoC meeting, the Respondent requested the CoC members to cast their votes in favour of the resolution applicant and the Applicant herein being satisfied with the financial and technical capabilities of Prestige voted in their favour. Pertinently, no discussion whatsoever was regarding the distribution matrix was proposed by the Respondent and the Applicant under a presumption that the same would take place at a subsequent date and left the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. The unsecured creditors, like the Applicant, have taken a considerable hair cut in the Approved Plan and the sum of ₹ 3 Crore can be distributed amongst the unsecured creditors towards part discharge of their claim. 6. It is pertinent to note that all the discussion relating to distribution matrix was undertaken post receiving the vote of the remaining members of the COC which clearly reflects the malicious intent of the RP and his failure to perform his obligations as per the provisions of the Code. Also, the distribution matrix is not in accordance with the Section 53 of the Code and the RP has surpassed his jurisdiction in changing the commercials, without notice and/or consent of the Applicant. 7. Stating the above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n not replying to the email of the RP attaching the Approved Resolution Plan and the distribution matrix after the 20th CoC meeting wherein the Resolution Plan was approved and the applicant was among the ones who had voted in favor of the plan. He stated that it is therefore surprising that now the Applicant has chosen to file the present Miscellaneous Application. This conduct of the Applicant show that the present Miscellaneous Application is nothing but an attempt to delay the entire process of approval of the Resolution Plan. 9. He submitted that the Resolution Applicant had specifically stated in its Resolution Plan that the distribution of consideration amongst lenders, subvention payments, CIRP Costs, Statutory Costs and any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommittee of Creditors. 11. With specific reference to the Success Fee, the counsel for the RP stated that the same is just, fair and reasonable and it has been determined by the Resolution Applicant and the CoC in the light of the efforts made by the RP during the CIRP . The Success Fee forms part of the CIRP Costs under the Resolution Plan and has been duly approved by CoC with a majority of 86.67% Pertinently, this percentage of affirmative votes includes the affirmative votes cast by the Applicant. He submitted that not only the CoC has approved the success fees but also had appreciated the efforts of the RP in bringing forth the successful Resolution Plan which included in increment in the upfront receipt from ₹ 200 Crores to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Bank of India Ltd. [Company Appeal (AT) (Insolvency) No. 646 of 2020] that the fees of the RP is not the commercial wisdom of the CoC. The following para from the said judgment is hereby reproduced: ...Fixation of fee is not a business decision depending upon the commercial wisdom of the Committee of Creditors. We accordingly find this appeal lacking merit. The appeal is accordingly dismissed. No costs. Basing on the above discussion, this Bench hereby directs to proportionately distribute the said amount of ₹ 3 Crores among the employees/operational creditors/unsecured creditors. This has been justified by this Bench in the said order (refer to order in MA 3714/2020) 14. In view of the approval of Resolution Plan, pra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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