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TMI Blog2022 (1) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... hey are eligible/ineligible under Section 29A(e) of the Code. The stand of the 3rd Respondent is that the Resolution Professional did not afford any opportunity to cure the defect and Suo moto rejected on the ground of ineligibility which is mere technicality. However, this Tribunal is not inclined to delve into those issues. This Tribunal is considered only with respect to whether the Adjudicating Authority has passed the order directing the COC to consider the ineligibility of the 3rd Respondent is in accordance with law or not. This Tribunal is of the view that as per the above Provisions of Law, the COC has power to take a decision with regard to approval of the Resolution Plan. Further in accordance with the Regulations, the Committee has power to evaluate the Resolution Plans received by the Resolution Professional. As per Sub Regulation 4 of Regulation 39, the COC has power to approve the plan and after approving the Plan by the Committee the Resolution Professional shall submit to the Adjudicating Authority. Therefore, this Tribunal is of the view that the COC has power to decide and approve the Resolution Plan of the Resolution Applicants. Appeal dismissed. - Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in time objected to the decision of the Resolution Professional in holding that the 3rd Respondent is disqualified under Section 29A of the Code and submitted in their pleadings before the Adjudicating Authority that they would abide by the decision of the Adjudicating Authority with regard to the eligibility of the 3rd Respondent under Section 29A of the Code. 7) The main grievance of the Appellant is that the COC has no power to consider the ineligibility of the 3rd Respondent under Section 29A. The Adjudicating Authority ought not to have directed the COC to consider the ineligibility. 8) In view of the aforesaid reasons, the Learned Counsel prayed this Bench to set aside the Impugned order of the Adjudicating Authority dated 25th March 2021 and allow the Appeal. RESPONDENT S SUBMISSIONS: 9) The 1st Respondent filed detailed counter to the Appeal and submitted that the Appellant and the 3rd Respondent submitted their respective Resolution Plans before this Respondent on 05th September 2020 pursuant to extension for the submissions of Resolution Plans from 24th August to 5th September 2020 along with the Affidavit under Section 29A of the Code stating that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent No.3 with 90.98% vote. 13) The Counsel appearing for the 2nd Respondent submitted and took the preliminary objection stating that the Appellant is not a party to the Proceedings before the Adjudicating Authority and the impleading application filed by the Appellant was dismissed by the Adjudicating Authority and the Appellant has not challenged the dismissal of impleading application. The plan of the Appellant was rejected in the 11th COC meeting by the Lead Financial Creditor considering the commercial viability and voted for filing an application for Liquidation. The Hon ble Adjudicating Authority rightly directed the COC (this Respondent) to consider the ineligibility criteria of the 3rd Respondent in accordance with law. It is further stated that the order of the RP with regard to passing of the Order regarding ineligibility of the 3rd Respondent has not been set aside by the Learned Adjudicating Authority, however it directed the COC to consider the ineligibility. It is further submitted that the COC has all the powers to ascertain the eligibility/ineligibility if placed before them. As per Section 30 of the I B Code, 2016 the said Provision clearly states that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is/Appraisal: 18) Heard the Learned Counsel appearing for the respective parties perused the pleadings and documents. The short point for consideration is whether the order passed by the Adjudicating Authority is in accordance with law or not? For better appreciation, the order of the Adjudicating Authority is reproduced hereat. IA No. 968/2020 is filed by PSN Medicare Private Limited with a request to direct the COC to consider his revised plan which he would be submitting which RP has rejected him declaring to be ineligible U/s. 29A(e) of IBC. We have heard learned counsel for the Applicant, learned counsel for the RP and RP in person. Keeping open objection as taken by RP and directing COC to take a call whether Applicant is really ineligible U/s. 29A(e) of IBC, we direct the COC and RP to consider the revised plan to be submitted by the Applicant within 7 days from today. COC is allowed to take call on all aspects including ineligibility and commercial viability of the plan. With these, IA No.968/2020 stands disposed of. List all the pending IAs on 29.04.2021. 19) From the order it is seen that the 3rd Respondent challenged the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors in the event of a Liquidation of the Corporate Debtor under Section 53. The relevant proviso in this regard is sub section 4 of section 30 which states as under: the Committee of Creditors may approve a resolution plan by (a) vote of not less than (sixty six percent) of voting share of Financial Creditors, after considering its feasibility and viability, (the manner of distribution proposed, which may take into account the order of priority amongst Creditors as laid down in sub section 1 of section 53, including the priority and value of the security interest of a Secured Creditors) and such other requirements as may be specified by the Board. The Proviso to this Sub Section further states as under: Provided that the committee of creditors shall not approve a resolution plan submitted before the commencement of the insolvency and Bankruptcy code, (amendment) ordinance, 2017 (ord.7 of 2017) where the resolution Applicant is ineligible under Section 29A and may require the resolution Professional to invite a fresh resolution Plan where no other resolution plan is available with it. 22) Regulation 39 of the I B (Insolvency Resolution Process for Corporate Per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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