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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 ..... Advocate for R3. Mr. Krishnan Venugopal, Senior Advocate with Mr. Abhishek Anand, Mr. Kunal Godhwani, Advocates for R6. Ms. Pooja Mahajan, Ms. Mahima Singh, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;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 0.01 - - 0.01 - 0.01 - 0.01 6. Addon Realty Private Limited 0.24 0.24 - 0.24 - 0.24 - - 0.24 7. Logos Holding Company Private Limited 4.14 4.14 - 4.14 - 4.14 - - 4.14 8. Rapid Buildwell Limited 0.27 0.27 - 0.27 - 0.27 - - 0.27 Voting Share % 100.00 64.64 35.36 4.65 95.35 4.65 95.35 0.0 100.00 3. The Appellant has voting share of 35.36%, although the Appellant's voting share was not sufficient enough to get any plan approved but its voting share was sufficient to get any Resolution Plan rejected. One more fact noted is that the Appellant- Financial Creditor itself has submitted Resolution Plan and there is another Resolution Plan submitted by 'Madhav Dhir and Alok Dhir' (MD / AD) who are promoters of the Appellant- 'A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement. Hence prayer "a" of this application becomes infructuous. With respect to prayer "b" we have given direction to RP and CoC. Application stands disposed of in terms of above order". 4. After order dated 01.10.2021 of the Adjudicating Authority, 54th meeting of the CoC was held on 07.10.2021 where CoC noticed that in the meantime, two Prospective Resolution Applicants i.e. 'Sattva' and 'M3M' has sent e-mail expressing their intend to withdraw and praying to return their BBG. BBG of INR 20 Crores was returned to those two Prospective Resolution Applicants. Noticing the aforesaid facts, the CoC requested the Resolution Professional to approach all four Resolution Applicants and seek confirmation whether they are interested to participate again in the process. It is useful to extract following deliberation of the CoC on 07.10.2021:- "During the meeting, the representative of SCB noted that there is lack of clarity in the Order as to which resolution plans are required to be put to vote. The representative of Blackstone was also of the same view that there is no clarity as to which resolution plans are required to be voted upon. Alchemist was of the view that the Order referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective letters dated 8th July, 2021 and 7th May, 2021 have withdrawn without prejudice to their rights under applicable law. After the decision of the CoC dated 07.10.2021, the Resolution Professional by e-mail dated 12.10.2021 requested all the four Prospective Resolution Applicants namely- 'Sattva', 'Experion', 'MD/ AD' and 'M3M' to confirm whether they are interested in participating again in the CIRP. 'Sattva' did not respond. 'M3M' by its e-mail stated that they are interested in participation. 'Experion' informed the Resolution Professional that they should be permitted to submit the revised Resolution Plan in the event any request is received from any other Resolution Applicant. 'MD/ AD' responded that they are interested in participating in the CIRP of the Corporate Debtor. In the Application I.A. No. 4918 of 2021, following prayers were made by the Resolution Professional:- "In view of the aforesaid facts, circumstances and submissions, it is most humbly prayed that this Hon'ble Adjudicating Authority may be pleased to: a. Allow the present application b. Clarify the order dated 1 October 2021 passed by this Hon'ble Adjudicating Authority, specifically: i. Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Senior Counsel for 'Experion'. 9. Shri Abhijeet Sinha, Learned Counsel for the Appellant- 'Alchemist Asset Reconstruction Company Ltd.' submits that the order dated 25.11.2021 is review of earlier order dated 01.10.2021. It is submitted that by earlier order dated 01.10.2021, two plans which were pending were directed to be voted. It is submitted that the two plans which are alive and pending is the plan of 'Experion' and the plan of 'MD/ AD'. Now by order dated 25.11.2021, the said order has been reviewed. The Adjudicating Authority has directed that the two plans which received 64.64% voting share should be put to vote. It is submitted that 64.64% vote was secured only by 'Sattva'. 'Sattva' having withdrawn, virtually now there are no two plans to put for voting. It is submitted that the order dated 25.11.2021 has been passed in different combination than one which passed the earlier order dated 01.10.2021. It is true that 'Alchemist Asset Reconstruction Company Ltd.' has filed its Resolution Plan but it has been withdrawn on 01.10.2021. The mere fact that 'MD/ AD' are promoters of 'Alchemist Asset Reconstruction Company Ltd.' the 'MD/ AD' are not disentitled to submit a plan. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her it was only interested in the plan submitted by Madhav Dhir for whom it voted. Appellant- 'Alchemist Asset Reconstruction Company Ltd.' has voted against the 'Experion' although 'Experion' was the best plan to maximise the value of the Corporate Debtor but due to its vested interest Appellant did not approve the plan of 'Experion'. It is submitted that 'Experion' has already filed an Application before the Adjudicating Authority being Application No. 1342 of 2021 for excluding 'Alchemist Asset Reconstruction Company Ltd.' from voting due to obstruction created by it in CIRP of the Corporate Debtor which Application is still pending. 14. We have heard Learned Counsel for the parties and perused the record. 15. The object of CIRP is Resolution of the Corporate Debtor. 330 days including the extensions granted by the Adjudicating Authority was coming to an end on 09.03.2021. The Adjudicating Authority noticing that object of CIRP is Resolution of the Corporate Debtor had directed for consideration of all the four plans who have permitted to give revised plan. As noted above, in the voting held on 8th March and 9th March, 2021, no Resolution Plan could get 66% votes. Two Resoluti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of liquidation Application only due to the fact that it had directed for fresh voting. 18. We have noticed that although Adjudicating Authority on 01.10.2021 directed consideration of only two plans which were pending i.e. which were alive. From the facts brought on record, it is clear that on 01.10.2021 only two plans were alive i.e. 'Experion' and 'MD/AD'. Prior to 01.10.2021, plans of 'Sattva' and 'M3M' had already been withdrawn and their BBG returned. We also noticed that the CoC in its meeting dated 07.10.2021 decided to approach all four Resolution Applicants and the Resolution Professional did issue e-mail dated 12.10.2021 to all four Resolution Applicants asking their willingness to participate. After 25.11.2021 order, voting again took place in 2nd week of December but only plan of 'Experion' was voted and it could not get 66% since admittedly the Appellant did not vote for the plan. 19. There are only two option available as on date, first to direct the Adjudicating Authority to take up the Application filed by the Resolution Professional for passing an order for liquidation and second to make a last effort to see as to whether any of the four plans could get the req ..... X X X X Extracts X X X X X X X X Extracts X X X X
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