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TMI Blog2022 (4) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant : Ms. Namrata Saraogi, Advocate For the Respondent No. 1: Mr. Ankur Mittal, Ms. Aishwarya Pandey Ms. Meera Murali, Advocates for R-1. For the Respondent No. 2: Mr. Biswajit Dubey Ms. Aishwarya Gupta, Advocates for R-2. JUDGEMENT ( Per : Shreesha Merla, Member (T) ) 1. Aggrieved by the Impugned Order dated 19/10/2020 in CA No. 1393 of 2019 in C.P. (IB) No. 50(PB)/2018 passed by the Learned Adjudicating Authority (National Company Law Tribunal, New Delhi, Principal Bench), M/s. Berger Becker Coatings Pvt. Ltd. , preferred this Appeal under Section 61(3) of the Insolvency and Bankruptcy Code, 2016, (hereinafter referred to as The Code ). By the Impugned Order, the Adjudicating Authority has allowed the Application filed by the Resolution Professional (RP) under Section 31 of the Code, seeking approval of the Resolution Plan. 2. It is the case of the Appellant that suitable protection be accorded to the Operational Creditors keeping in view the ratio laid down by the Hon ble Apex Court in Committee of Creditors of Essar India Limited Vs. Satish Kumar Gupta Ors. (2020) 8 SCC 531, in which the Hon ble Apex Court has examined the aspect of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is mentioned in Section 30(2)(e), as the provisions of the Code are also provisions of law for the time being in force. Thus, while the Adjudicating Authority cannot interfere on merits with the commercial decision taken by the Committee of Creditors, the limited judicial review available is to see that the Committee of Creditors has taken into account the fact that the corporate debtor needs to keep going as a going concern during the insolvency resolution process; that it needs to maximise the value of its assets; and that the interests of all stakeholders including operational creditors has been taken care of. If the Adjudicating Authority finds, on a given set of facts, that the aforesaid parameters have not been kept in view, it may send a resolution plan back to the Committee of Creditors to re-submit such plan after satisfying the aforesaid parameters. The reasons given by the Committee of Creditors while approving a resolution plan may thus be looked at by the Adjudicating Authority only from this point of view, and once it is satisfied that the Committee of Creditors has paid attention to these key features, it must then pass the resolution plan, other things being equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cising the business decision. The Hon ble Supreme Court in Ghanashyam Mishra and Sons Private Limited Vs. Edelweiss Asset Reconstruction Company Limited Through the Director Ors. , (2021) 166 SCL 237 (SC), dealing with the issue of commercial wisdom of the CoC and the jurisdiction of the Tribunal to interfere in the same has observed as follows:- 151. The position is clarified by the following observations in paragraph 59 of the judgment in the case of K. Sashidhar (supra), which reads thus: 59. In our view, neither the adjudicating authority (NCLT) nor the appellate authority (NCLAT) has been endowed with the jurisdiction to reverse the commercial wisdom of the dissenting financial creditors and that too on the specious ground that it is only an opinion of the minority financial creditors .. 152. This Court in Committee of Creditors of Essar Steel India Limited through Authorised Signatory (supra) after reproducing certain paragraphs in K. Sashidhar (supra) observed thus: Thus, it is clear that the limited judicial review available, which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors, has to be w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the appellate authority ought to have interfered with the order of the adjudicating authority in directing the successful resolution applicant to enhance their fund inflow upfront. 155. This Court observed, that the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. This Court clearly held, that the appellate authority ought not to have interfered with the order of the adjudicating authority by directing the successful resolution applicant to enhance their fund inflow upfront. 156. It would thus be clear, that the legislative scheme, as interpreted by various decisions of this Court, is unambiguous. The commercial wisdom of CoC is not to be interfered with, excepting the limited scope as provided under Sections 30 and 31 of the I B Code. (Emphasis Supplied) 6. It is seen from the record that the total payments received by the Financial Creditors ..... 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