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TMI Blog2022 (1) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... contention of the Learned Counsels for the Respondent that if one of the Directors of the Appellant Company Mr. Naresh Agarwal had tested Covid positive, there are no substantial reasons given for any of the other five Directors not to have represented their matter. In a catena of Judgements, the Hon ble Apex Court has laid down that the provisions investing jurisdiction and authority in the NCLT has not made the commercial decision exercised by the CoC of not approving the Resolution Plan or rejecting the same, justiciable. So, in the instant case, if CoC has approved with 66% majority as provided under Section 12(2) of the Code and has decided not to extend the time to the Appellant herein on the ground that several extensions have already been given, the RP cannot take any contrary decision. Therefore the contention of the Learned Counsel for the Appellant that the RP has not given sufficient advance time for the meeting and has acted contrary to provisions of IBC, is untenable. Additionally, the Appellant had not chosen to exercise their choice of participating in the open bidding process and chose to exit the Meeting and even accepted the refund of the EMD amount. Appeal dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CoC in its twelfth meeting, however, the CoC has offered the Applicant to continue to be a part of the ongoing process so that it may have an opportunity at a later stage. The Applicant sought 15 minutes time for discussion and upon discussion, the Applicant decided not to participate in the open bidding process and exited the meeting. Therefore, the CoC went on to approve the resolution plan submitted by Om Logistics Ltd., i.e. Respondent No. 8 herein, in its fourteenth CoC meeting held on 17.10.2020. 20. From the submissions made on behalf of all the parties and the documents available on record, it is seen that four opportunities were granted for submission of resolution plan vide dates 16.04.2020, 30.05.2020, 29.06.2020, 31.07.2020, and two opportunities were granted to submit revised resolution plan vide 19.08.2020 and 03.09.2020 to the Applicant herein. Despite several opportunities being granted, the Applicant herein has failed to submit its revised resolution plan. 21. The Applicant's submission that the resolution plan could not be finalised due to lockdown and due to its directors, other than the authorised representative, being either infected or exposed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant herein was heard by the Adjudicating Authority on 02.10.2020 but the Judgement was pronounced only 60 days later, whereby valuable time was lost. The Learned Counsel drew our attention to Annexure 11 which is an email dated 08.09.2020 sent by the Appellant seeking time for the following reasons: Despite talking all steps as may be necessary in order to comply with the timeline of 10th September, 2020, we have been unable to finalize and formalize our Resolution Plan in view of the lockdown that was imposed across the Country due to COVID-19. As a result of the Pandemic, we had very limited access to our office and all the documents necessary to prepare our Resolution Plan. As a result of this delay, we have lost a considerable amount of time; Our Director Mr. Naresh Agarwal has been unwell and has in fact been diagnosed with COVID-19. A copy of the medical reports in this respect are enclosed. As a result, he was unable to assist in preparation of the Resolution Plan. Mr. Agarwal was a critical member of our team and was in fact spearheading this assignment. In his absence and without his leadership, our team has been struggling to formalize and finalize the Resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RP brought to the notice of the CoC that an email was received from the Appellant seeking extension of time, but the same was refused. The H1 Bidder had written to the RP on 30.07.2020 and on 28.08.2020 that the extension in timeline might lead to their withdrawal from the Resolution Process of the 'Corporate Debtor' and that the funds earmarked for taking over the 'Corporate Debtor' may be deployed in some other Project. The timelines were published on 18.02.2020 through Form-G and the Appellant had given declaration that they will abide by the timelines and the provisions of RFRT. After the Members of the COC conveyed to the Appellant that extension could not be granted, the Appellant decided to exit the Meeting and their open bidding process was conducted wherein H1 Company was declared the Bidder with ₹ 49 Crs. The EMD amount was returned to the Appellant. An application was preferred by the Appellant in September 2020, but the same was not pursued by them before the Adjudicating Authority, though it was sitting regularly. After the approval of the Resolution Plan, the RP conveyed the first Meeting of the Monitoring Committee and three new Board of Directors we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment: 6. I.A. 599 of 2021 seeking condonation of delay in filing the Appeal is condoned vide Order dated 09.08.2021. 7. The material on record shows that the last date for submission of the Resolution Plan was extended five times: On 01.04.2020 16.04.2020 30.05.2020 29.06.2020 and finally till 30.07.2020 8. It is the case of the Appellant that RP had given only two days time i.e., the email was addressed to them on 08.09.2020 and the 10th CoC Meeting was convened on 10.09.2020 and that the fixing of the date within two days is not in conformity with Section 19 of the Code and there are no reasons for the urgency stated in the email. The documentary evidence on record shows that the 12th COC Meeting was held on 10.09.2020, whereby the RP brought to the notice of the COC Members regarding the request of the Appellant in the email dated 08.09.2020 seeking extension till 25.09.2020 for submission of the revised Resolution Plan. Further extension of date was declined by the Members of the COC. As regarding the urgency which is submitted by the Appellant, it is a well settled proposition that IBC is a time bound process and any extension of time has to be done strictly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt of the claim T+21 Verification of claims received under Regulation 12(2) T+97 Section 21(6A) (b)/Regulation 16-A Application for appointment of AR Within 2 days from verification of claims received under Regulation 12(1) T+23 Regulation 17(1) Report certifying constitution of CoC T+23 Section 22/Regulation 19(2) 1st meeting the CoC of Within 7 days of filing of the report certifying constitution of the CoC, but with five days' notice. T+30] Section 22(2) Resolution appoint RP the CoC to by In the first meeting of the CoC T+30 Section 16(5) Appointment RP of On approval by the AA …… Regulation 17(3) IRP performs the functions of RP till the RP is appointed. If RP is not appointed by 40th day of commencement T+40 Regulation 27 Appointment valuer of Within 7 days of appointment of RP, but not later than 47th day of commencement T+47] Section 12(A)/Regulation 30-A Submission of application for withdrawal application admitted Before issue of EoI W CoC to dispose of the application Within 7 days of its receipt or 7 days of constitution of CoC, whichever is later. W+7 Filing application of withdrawal, if approved by CoC wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Going a little bit more in detail, the material on record shows that the financial bid submitted by the Appellant as on 31.07.2020 and the revised bid submitted on 02.09.2020 read as follows: Sl. No. Particulars Plan as on 31.07.020 Revised Plan as on 02.09.2020 1 CIRP Cost-unpaid if any - 00.50 2 Secured Financial Creditor 10.98 28.48 3 Unrelated Operational Creditor 00.01 00.01 4 Unsecured Financial Creditor 00.01 00.01 5 Workman & Employee - - Total Financial Bid 11.00 29.00 12. It is seen from the aforenoted table that even 10 days prior to the 12th Meeting of the CoC, the revised Plan was ₹ 29 Crs. The Hon'ble Supreme Court in 'CoC of Essar Steel India Ltd.' Vs. 'Satish Gupta & Ors.' (2019) SCC OnLine SC 1478 held as follows: After a resolution plan is approved by the requisite majority of the Committee of Creditors, the aforesaid plan must then pass muster of the Adjudicating Authority under Section 31(1) of the Code. The Adjudicating Authority's jurisdiction is circumscribed by Section 30(2) of the Code. In this context, the decision of this court in K. Sashidhar (supra) is of great relevance…… 45. Indubitably, the inqu ..... 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