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TMI Blog2021 (12) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... as deferred by the Adjudicating Authority by its order dated 01.10.2021. The Adjudicating Authority on 01.10.2021 has directed for consideration of two plans which were pending. In subsequent order dated 25.11.2021, direction was passed for voting on two plans which received 64.64% votes. The above order was passed by the Adjudicating Authority since it was not posted with the fact that two Prospective Resolution Applicants namely- Sattva and M3M has withdrawn their Bid Bond Guarantee on 07.05.2021 and 09.07.2021, respectively - although there were four plans which came for consideration before the CoC but no one could achieve requisite number of votes i.e. 66% vote. In the CIRP of the Corporate Debtor, serious efforts were made for Resolution of Insolvency. 54 meetings of the CoC have been conducted so far but unfortunately no plan could receive requisite number of votes to get approval. In the present case, although 330 days have elapsed but present is a case where as per direction of the Adjudicating Authority only re-voting has to be conducted to find out as to whether any Resolution Plan could get requisite number of votes failing which liquidation order is to be pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Gaurav Arora, Ms. Srishti Kapoor, Advocates for R1. Mr. Sajan Poovayya and Mr. K. Datta, Senior Advocates with Mr. Pramod Gupta, Mr. Hardeep Sachdeva, Mr. Ravi Bhasin, Mr. Kamal Shankar, Mr. Parag Maini, Mr. Raghav Chadha, Advocates for R2. Ms. Radhika Bishwajit Dubey, Advocate for R3. Mr. Abhijeet Sinha, Mr. Milan Singh Negi, Advocates for R7 JUDGMENT Ashok Bhushan, J. 1. These two Appeals have been filed against the impugned orders passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi, Court-IV dated 25.11.2021 passed in I.A No. 4918/ND/2021 in Company Petition No. (IB) 1689/ND/2018 read with order dated 01.10.2021. Corporate Insolvency Resolution Process (CIRP) was initiated against the Corporate Debtor- Dignity Buildcon Pvt. Ltd. by order dated 24.04.2019 of the Adjudicating Authority. The Respondent No.1 was appointed as Resolution Professional. Resolution Professional notified the publication of Form-G on 01.07.2019. 16 Expression of Interest (EoI) were received from various Prospective Resolution Applicants. After several meetings of the Committee of Creditors (CoC) and discussions with Prospective Resolution Applicants, there has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49.83 - - 49.83 - 49.83 - 49.83 2. Alchemist Assets Reconstruction Company Ltd. 35.36 - 35.36 - 35.36 - 35.36 - 35.36 3. BREP Asia Rainbow Holding (NQ) Pte. Ltd. 10.13 10.13 - - 10.13 - 10.13 - 10.13 4. BREP Asia SBS Rainbow Holding (NQ) Ltd. 0.02 0.02 - - 0.02 - 0.02 - 0.02 5. BREP VIII SBS Rainbow Holding (NQ) Ltd. 0.01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econstruction Company Ltd. i.e. Appellant who is ensuring that no Resolution Plan is approved should be excluded from voting. Standard Chartered Bank , the Financial Creditor having more than 49% voting share also filed an I.A No. 2530/ND/2021 praying that Appellant be excluded from voting. In third round of voting, no Resolution Plan having secured requisite number of votes, Resolution Professional filed an Application No. 1367/ND/2021 seeking liquidation. All the three Applications came for consideration before the Adjudicating Authority on 01.10.2021. The Standard Chartered Bank withdrew its Application No. 2530/ND/2021. On Application No. 1367/ND/2021, the Adjudicating Authority directed that the same be deferred. On I.A No. 1342/ND/2021, following order was passed on 01.10.2021:- I.A No. 1342/ND/2021: Application filed by one of the Resolution Applicants seeking direction against RP. Reply is filed by RP by way of affidavit and affidavit on behalf of non-applicant is also filed. After hearing, the counsels of both the sides, it is felt that in the interest of all the stakeholders and in the interest of Learned Counsel for the Corporate Debtor, two plans which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NR 20 Crores. However, in its letter, Sattva had stated that the letter is being issued without prejudice to their rights under applicable law including the right to bid, re-bid and/or improve its resolution plan (commercially or otherwise), if the NCLT and/or COC decide to recommence the CIRP of the Corporate Debtor. The RP informed the members of the COC that currently, Experion and Dhirs are the only RAs who have not withdrawn from the CIRP Process; however Sattva had expressed its intent to participate again in case of rebidding etc. Due to lack of clarity in the Order, the members of the COC decided and requested the RP to approach all 4 RAs, Sattva, M3M, Dhirs and Experion and seek confirmation whether they are interested to participate again in the process and if they intend to submit a revised resolution plan. Depending on the responses received, an application shall be filed with the Hon'ble NCLT seeking clarification of the Order and permission to allow the COC to vote on resolution plans of applicants who have expressed their intent to participate in the process. It was also decided that where EMD has been withdrawn, the participation would also need to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given an opportunity to submit their resolution plan as they have expressed their interest in participating in the corporate insolvency resolution process of the Corporate Debtor subject to them providing a BBG? c. pass any other order(s) as may be deemed fit and proper in the facts and circumstances of the present case . 6. The Adjudicating Authority on Application No. 4918 of 2021 passed following orders on 25.11.2021:- IA No. 4918/ND/2021: Arguments heard. Apparently, the present application has been filed for clarifications of order dated 01st October 2021, of this bench, whereby two Resolutions Plans need to be placed for voting. The order is very clear and in view of the Regulation 39(3)(b), no such clarification is required. RP should proceed accordingly. There are two Resolutions Plans namely, Experian and another one which have received 64.66% of voting shares each and RP shall consider those Resolutions Plans as per Regulations. RP should give certificate that these two Resolution Applicants comply with the requirements of the Code and Regulations. The CoC/RP is directed to ensure the completion of the voting process within 7 (Seven) days without fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dhir is a live plan and it could not have been excluded from voting. It is submitted that the Resolution Professional is unduly favouring the plan of Experion . It is submitted that the Experion acted in connivance to defeat the Appellant- Madhav Dhir. The intent of I B Code is to maximise the assets of the Corporate Debtor and efforts of Resolution Professional ought to have been to give opportunity to all the Prospective Resolution Applicants to get their plans considered and voted upon. The order dated 25.11.2021 is virtually review of the earlier order dated 01.10.2021. Under the order dated 01.10.2021, two pending plans were only of Experion and MD/ AD which ought to receive vote. 11. Ms. Pooja Mahajan, Learned Counsel for the Resolution Professional submitted that the voting in pursuance of the order dated 25.11.2021 took place. It is also submitted that it was only Experion who was put to vote. 12. On 09.12.2021, when Company Appeal (AT) (Insolvency) No. 1026 of 2021 was taken, we directed that till the next date, the voting may be completed but no further steps be taken. Ms. Pooja Mahajan, Learned Counsel for the Resolution Professional informs the outcome ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication was deferred by the Adjudicating Authority by its order dated 01.10.2021. 16. The Adjudicating Authority on 01.10.2021 has directed for consideration of two plans which were pending. In subsequent order dated 25.11.2021, direction was passed for voting on two plans which received 64.64% votes. The above order was passed by the Adjudicating Authority since it was not posted with the fact that two Prospective Resolution Applicants namely- Sattva and M3M has withdrawn their Bid Bond Guarantee on 07.05.2021 and 09.07.2021, respectively. Hence, Sattva who had earlier received 64.64% was not fulfilling the eligibility for consideration and it was only Experion who was left alone to be considered which actually received vote consequent to the order dated 25.11.2021 and could not receive the requisite vote as informed by the Learned Counsel appearing for the Resolution Professional. The net result of the above proceeding is that although there were four plans which came for consideration before the CoC but no one could achieve requisite number of votes i.e. 66% vote. In the CIRP of the Corporate Debtor, serious efforts were made for Resolution of Insolvency. 54 meetings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te and vote on all the four plans. Since BBG have been returned to two Resolution Applicants, we are inclined to give opportunity to those Resolution Applicants who have withdrawn their BBG to submit fresh BBG of INR 20 Crores if they intend to get their plan considered. 20. In view of the above discussions, we dispose off these two Appeals with following directions:- (i) All four Resolution Applicants may submit their revised plan within 15 days from date of this order. (ii) The Resolution Applicants i.e. Sattva and M3M and any other who have withdrawn their BBG may submit their BBG along with revised plan, if they so intend, within a period of 15 days as indicated above. (iii) CoC may deliberate all the plans so received and plans be put to vote in accordance with law. We request the CoC to complete the process consideration and voting within a period of 30 days after all the four plans is received. (iv) We have no doubt, the CoC will deliberate and consider all the plans and make serious efforts to save the Corporate Debtor from going into liquidation. (v) Orders of the Adjudicating Authority dated 25.11.2021 and 01.10.2021 are modified accordingly. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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