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TMI Blog2021 (5) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... e had voted against the Resolution Plan and in the teeth of ingredients of 33(2) of the Insolvency and Bankruptcy Code, 2016, comes to a irresistible conclusion that the impugned order of Liquidation in respect of the Corporate Debtor passed by the Adjudicating Authority is free from legal infirmities - Appeal dismissed. - Company Appeal (AT) (CH) (INS) No.59 of 2021 - - - Dated:- 19-5-2021 - [Justice Venugopal M] Member (Judicial) And [V.P.Singh] Member (Technical) For the Appellant : Mr.Rahul Balaji, Advocate For M/s.R. Parthasarathy, Vishnu Mohan, Advocates JUDGMENT ( Virtual Mode ) 1. According to the Learned Counsel for the Appellant, the Appellant was the Chairman and Managing Director of the Corporate Debtor viz. Thiru Arooran Sugars Ltd. (prior to suspension of the Board upon initiation of CIRP) and that the Corporate Debtor /Thiru Arooran Sugars Ltd. was admitted into CIRP as per Order of the Adjudicating Authority in IBA No.243/2019 and that the Respondent was appointed as an Interim Resolution Professional and later confirmed as the Resolution Professional by the Committee of Creditors . 2. The Learned Counsel for the Appellant sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a reduced scale, and without Provision for any additional upfront payment until after approval of the Adjudicating Authority which facts were not stated before it. 6. It is the version of the Appellant that in the Committee of Creditors Meetings, the Promoter was requested to improve the CS Offer, with an increase in upfront payment and with balance payment to be completed within three months of approval of the Tribunal . As such, a revised Compromised Settlement Offer was submitted on 23.11.2020, wherein the offer to the Banks was raised from 30% to 33% of the admitted claims and the aggregate upfront payment increased to not less than 10% of the amount due to the Banks. 7. The Learned Counsel for the Appellant urges before this Tribunal that the revised CS Offer of ₹ 243 Crores for all Creditors is 12% higher than the Liquidation Value of ₹ 217 Crores, and works out to 42.03% of the aggregate claims admitted by the Resolution Professional . Apart from that, it is the plea of the Appellant that the Secured Creditors will realize 38.85% of their outstanding as on the date of Non Performing Asset , while the Banks which had extended Harvest and Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the Banks . Moreover, unless the matter is settled between the Banks and the Company, the concerned farmers will not be released from their liability in respect of the loans. 13. The Learned Counsel for the Appellant refers to the Proposal for Compromise Settlement of dues to all Creditors on 27.09.2020 by the Promoters in Thiru Arooran Sugars Ltd. and submits that the said Proposal/Scheme is 100% settlement for the farmers and in fact, the Settlement Proposal is in terms of the Reserve Bank of India guidelines and further that the Bankers are bound by the RBI guidelines and the non-consideration of the Settlement Proposal is a material irregularity from the point of view of the Appellant . 14. The Learned Counsel for the Appellant submits that unlike in the case of Liquidation , the Compromise Settlement (CS Offer) made by the Promoter provides for payment of 100% of the admitted claims of ₹ 65.90 Crores to the farmers, besides payment of 15% Statutory interest per annum thereon, till date of payment, taking the total payment to ₹ 78.75 Crores as at the end of March 2021 and this amount will be adequate for the farmers to clear their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raph 155 to 157 had observed the following: 155. It would thus be clear, 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 Sub-section (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 be 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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