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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 ..... ority has approved the Resolution Plan of Respondent No.3. 2. The Corporate Insolvency Resolution Process (CIRP) was initiated against Bohra Industries Limited - the Corporate Debtor, by order dated 9th August, 2019. After publication of Form-G on 21.10.2019 a Resolution Plan was submitted by the Appellant. In Committee of Creditors (CoC) meeting dated 10th June, 2020, the Appellant made a statement that it had given its best offer. The possibility of any upward revision in Appellant offer was declined. A resolution was passed authorizing Resolution Professional to publish a fresh Form-G, inviting Expression of Interest to submit Resolution Plan for Bohra Industries Limited. In the 9th CoC meeting, Resolution Professional requested that CoC may deliberate on Resolution Plan submitted by the Appellant as well as another Resolution Plan submitted by consortium of six individual. CoC decided to choose to discuss the Resolution Plan with Resolution Applicants separately. In the 10th CoC meeting held on 25th August, 2020, both the Resolution Applicants were asked to give their updated revised Resolution Plans on or before 2nd September, 2020. The representatives of CoC categorically as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Resolution Plan. He may do so within three days. Learned Counsel for the Appellant may respond in further three days. List the Appeal on 17th December, 2021." 5. In pursuance of the order dated 03.12.2021, a short reply on behalf of the Respondent No.2 was filed. 6. Learned Counsel for the Respondent No.2 refuting the submissions of learned Counsel for the Appellant, contends that CoC with 100% vote has approved the Resolution Plan of Respondent No.3 and the Resolution Plan of the Appellant was rejected with 100% vote. It is submitted that evaluation matrix has been duly followed by the CoC while approving the Resolution Plan of Respondent No.3. The Successful Resolution Applicant had scored higher on the evaluation matrix, hence the argument of the Appellant is without any basis. It is further submitted that value of the Resolution Plan of the Successful Resolution Applicant was more than the Appellant. The learned Counsel for Respondent No.2 submits that multiple opportunities were granted to the Appellant to revise its Plan. It is submitted that in 10th, 11th, 12th and 13th CoC meeting opportunities were granted to both the Resolution Applicants to revise their Plans. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of the resolution plan." 11. The score of evaluation matrix of Respondent No.3 being higher to the evaluation matrix of the Appellant, the submission of learned Counsel for the Appellant that CoC's decision not in accordance with Regulation 39 sub-regulation (3) cannot be accepted. The CoC has evaluated the Resolution Plan as per evaluation matrix. We do not find any breach of regulation 39 of sub-regulation (3) in the present case. 12. The value of Plan of Respondent No.3 was 26.31 cores with NPV as 24.79 crores while Plan value of the Appellant was only 21.25 crores. The CoC has approved the Plan of Respondent No.3 with 100% vote. 13. As per Section 32 of the IB Code, any appeal from an order approving the resolution plan shall be in the manner and on the grounds laid down in sub-section (3) of Section 61. Section 61, sub-section (3) provides as follows: "61(3) An appeal against an order approving a resolution plan under section 31 may be filed on the following grounds, namely: - (i) the approved resolution plan is in contravention of the provisions of any law for the time being in force; (ii) there has been material irregularity in exercise of the powers by the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed resolution plan and assessment made by their team of experts. The opinion on the subject-matter expressed by them after due deliberations in CoC meetings through voting, as per voting shares, is a collective business decision. The legislature, consciously, has not provided any ground to challenge the "commercial wisdom" of the individual financial creditors or their collective decision before the adjudicating authority. That is made non-justiciable." 15. In another three Judge Bench judgment in 2019 SCC OnLine SC 1478 in Committee of Creditors of Essar Steel India Ltd. vs. Satish Kumar Gupta and Ors., in paragraph 48, the following has been laid down: "48. The detailed provisions that have been stated hereinabove make it clear that the resolution professional is a person who is not only to manage the affairs of the corporate debtor as a going concern from the stage of admission of an application under Sections 7, 9 or 10 of the Code till a resolution plan is approved by the Adjudicating Authority, but is also a key person who is to appoint and convene meetings of the Committee of Creditors, so that they may decide upon resolution plans that are submitted in accordance with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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