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TMI Blog2021 (9) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... EOI and thereby enlarging the field for multiple potential resolution applicants and not only to select players under the current process. c. That this Tribunal by an order and injunction restrain the CoC from proceeding ahead on the current rushed up process, thereby obtaining and approving any other resolution plan without considering the Resolution Plan of the Applicant. 2. Brief facts as stated by Applicant are as under: a. That post approval for publication of Expression of Interest ("EOI") by the CoC of the Corporate Debtor, the RP issued public announcement in Form G for "Invitation of Expression of Interest" ("EOI") for submission of Resolution Plan by the prospective Resolution Applicants. The prospective Resolution Applicants were requested to submit their EOI to Resolution Professional on or before 17.10.2019. It is understood that, due to various reasons including the prevalence of the pandemic the time line for submission of EOI was extended multiple times for the prospective resolution applicants and submission of Resolution Plan thereto. b. Since initial EOI stage revised Form G dated 13.11.2020, a new development has arisen on 01.01.2021 when the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly held that as the commercial wisdom of COC is the guiding principle, the same cannot be at the cost of maintaining requisite process transparency and fair play that provides equal opportunity to all potential applicants. Permitting such indirect entry for select participants defeats the very purpose of the code and the various elaborate regulations notified therein. i. Upon becoming aware of the new development, Applicant followed it up with an email dated 04.07.2021 to the Respondent No. 1 requesting him to provide an opportunity for the Applicant to participate in the Resolution Process of the Corporate Debtor by allowing it to file its EOI. However, Respondent No. 1, vide his email dated 06.07.2021 rejected the proposal of the Applicant stating "We have already communicated to you that the last date for receipt of EOI for submission of the Resolution Plan is already over many months back and hence the undersigned is unable to accept at this stage of the process" j. That while one part of it may be an accurate description, permitting the substitution of Jindal Steel and Power with another party is discriminatory (merely justifying on the ground of the Group Company) by viol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by Respondent No. 1 with the approval from the Respondent No. 2, the Committee of Creditors ("CoC"), from time to time. c. That the Respondent No. 1, is unable to exercise any discretionary power as per the CIRP Regulations, with respect to the rejection/acceptance of an EOI submitted beyond the due date for submissions as per the Final form G. Regulation 36A(6) of the CIRP Regulations in verbatim extracted herein below: "(6) The expression of interest received after the time specified in the invitation under clause(b) of sub-regulation (3) shall be rejected." d. In the case of Bilagi Sugar Mill Limited vs. Mr. M.V. Sudarshan, I.A. No. 111 of 2020 in C.P. (IB) No. 43/BB/2019, the mandatory procedure to be followed by the resolution professional to reject an EOI which is submitted beyond the due date for submission, was detailed by the Adjudicating Authority. e. Further, in the case of Amit Gupta vs. Yogesh Gupta, Company Appeal (AT) (Ins) No. 903 of 2019, an observation was made by the Adjudicating Authority that even an email sent to the resolution professional as an EOI, post a few hours of the due time line prescribed in the IEOI, is liable to be rejected by the reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective resolution applicants to participate in the resolution process of the Corporate Debtor, is in line with the IEOI and RFRP issued by the Respondent No. 1 The deliberations of the Respondent No. 2, is based on well settled law as laid down by the Hon'ble Supreme Court in Committee of Creditors of Essar Steel India Limited vs. Satish Kumar. Gupta, Civil Appeal No. 8766-67 OF 2019. The relevant paragraph is extracted herein below for easy reference: "10. ......What is important is that it is the commercial wisdom of this majority of creditors which is to determine, through negotiation with the prospective resolution applicant, as to how and in what manner the corporate resolution process is to take place." j. Therefore, the decision of Respondent No. 2 to allow the participation of group companies of the prospective resolution applicants in the CIRP of the Corporate Debtor, vide meeting of the Respondent No. 2 on 18 June 2021, in accordance with the IBC, CIRP Regulations, IEOI and RFRP is within its commercial wisdom. k. Thus, the reliefs sought by the Applicant is without any merit as it is in direct contravention of the duties of a resolution professional in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X
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