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TMI Blog2021 (12) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... was put to vote. By 100% vote of CoC, the Plan of Respondent No.3 was accepted and Plan of Appellant was rejected. The Adjudicating Authority in the impugned judgment has returned a finding that Resolution Plan approved by the Committee of Creditors is as per provisions of Section 30(2)(a) to 30(2) sub-section (e) and also complies the provisions of Regulation 38 and 39. The Resolution Plan dated 09.09.2020 along with all addendums dated 19.09.2020 as approved by the CoC, was rightly approved by the Adjudicating Authority by the impugned judgment. Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 985 of 2021 - - - Dated:- 21-12-2021 - [Justice Ashok Bhushan] Chairperson, [Justice Jarat Kumar Jain) Member (Judicial) And [Dr. Alok Srivastava] Member (Technical) For the Appellant : Mr. Manish Kaushik and Mr. Ajit Joher, Advocates For the Respondents : Mr. Amol Vyas and Mr. Saumil Sharma, Advocates (R1). Mr. Ankur Mittal and Ms. Meera Murali, Advocates (R2) Mr. Maharshi Viswaraj and CA Swami Venugopal, Advocates (R3) JUDGMENT ASHOK BHUSHAN, J. This Appeal has been filed by an Unsuccessful Resolution Applicant challenging the order of the Adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution Plan of Respondent No.3. It is submitted that under the evaluation matrix, the higher upfront payment was to be preferred and the Appellant having offered higher upfront payment was to be given the opportunity. It was submitted by learned Counsel for the Appellant that score of evaluation matrix was neither disclosed nor deliberated and the Resolution Plan was not as per evaluation matrix. It is submitted that as per Regulation 39(3)(a) of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the approved Resolution Plan was not as per evaluation matrix. Learned Counsel for the Appellant submits that Appellant s Plan had higher value. Learned Counsel further submits that no opportunity was given to the Appellant to enhance the value of its Plan. It is submitted that various circulars issued by IBBI were not followed by the CoC while approving the Resolution Plan of Respondent No.3. 4. When the Appeal was heard by this Tribunal on 03.12.2021, the following order was passed: 03.12.2021: Learned Counsel appearing for the CoC prays for time to file reply giving the details of the evaluation matrix, the plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arriving at its decision. Further, the Successful Resolution Applicant has scored higher on the evaluation matrix, and thus the argument of Appellant is without any basis. The Successful Resolution Applicant scored 51.49 marks and the appellant scored 48.51 marks. 9. With regard to the value of the Resolution Plan, following is stated in paragraph 5.2: 5.2 The value of resolution plan of Successful Resolution Applicant was more than the appellant herein. a. The value of plan of Successful resolution applicant is 26.31 Crores with NPV as 24.79 Crores, while the plan value of appellant was 21.25 Crore. b. The value of the resolution plan submitted by Respondent No.3 is approximately 25% higher than that of the Appellant 10. Regulation 39 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, which deals with the Approval of Resolution Plan, the sub-regulation (3) of Section 39 provides 39(3) The committee shall evaluate the resolution plan received under sub-regulation (1) strictly as per the evaluation matrix to identify the best resolution plan and may approve it with such modification a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority (NCLT) with the jurisdiction or authority to analyse or evaluate the commercial decision of CoC much less to enquire into the justness of the rejection of the resolution plan by the dissenting financial creditors. From the legislative history and the background in which the I B Code has been enacted, it is noticed that a completely new approach has been adopted for speeding up the recovery of the debt due from the defaulting companies. In the new approach, there is a calm period followed by a swift resolution process to be completed within 270 days (outer limit) failing which, initiation of liquidation process has been made inevitable and mandatory. In the 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 viab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Appellant that he was not given opportunity to revise the Plan after receipt of 2nd Plan of Respondent No.3, is without any substance and against the record. The Plans of both the Resolution Applicants were deliberated by the CoC in several meetings and both the Resolution Applicants were requested to enhance the value of their Plans. Final Plans were received by the Resolution Professional from both the Resolution Applicants before 19.09.2020 and thereafter, it was put to vote. By 100% vote of CoC, the Plan of Respondent No.3 was accepted and Plan of Appellant was rejected. 17. The Adjudicating Authority in the impugned judgment has returned a finding that Resolution Plan approved by the Committee of Creditors is as per provisions of Section 30(2)(a) to 30(2) sub-section (e) and also complies the provisions of Regulation 38 and 39. The Resolution Plan dated 09.09.2020 along with all addendums dated 19.09.2020 as approved by the CoC, was rightly approved by the Adjudicating Authority by the impugned judgment. 18. We do not find any error in the impugned order passed by the Adjudicating Authority. There is no merit in the Appeal. The Appeal is dismissed. No order a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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