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TMI Blog2022 (7) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant : Mr. P. H. Arvindh Pandian , Senior Advocate For Mr. A G Sathyanarayana , Advocate For the Respondent : Mr. S. Sathiyanarayanan , Advocate JUDGMENT ( Virtual Mode ) KANTHI NARAHARI, MEMBER ( TECHNICAL ) Preamble: The Present Appeal is filed against the Impugned Order dated 28.04.2022 passed by the Adjudicating Authority (National Company Law Tribunal, Division Bench-I, Chennai) in IA 293/CHE/2022 in IBA/642/2019, whereby the Adjudicating Authority allowed the application filed by the Resolution Professional. Brief Facts : Appellant s Submissions : 2. Sh. P.H. Arvind Pandian, Learned Senior Counsel appeared for the Appellant submitted that the Appellant is aggrieved by the impugned order dated 28.04.2022 whereby the Adjudicating Authority allowed the Application filed by the Resolution Professional under Section 33(2) read with Section 60(5) of the Insolvency and Bankruptcy Code, 2016 prayed the Bench to pass an order of liquidation of the Corporate Debtor namely viz. Freeworld Exports Pvt. Ltd. on the ground that the CoC in its 8th Meeting held on 08.01.2022 unanimously resolved to file an application for liquidati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the grounds of appeal relied upon the judgment of the Hon ble Supreme Court in the matter of Swiss Ribbons Pvt. Ltd. and Anr. Vs. Union of India Ors., 2019 (4) SCC 17. The Hon ble Supreme Court held that the primary focus of the legislature is to ensure revival and continuation of the Corporate Debtor by protecting the Corporate Debtor from its own management and from a corporate death by liquidation . 8. In view of the reasons as stated above the Learned Senior Counsel prayed this Bench to allow the Appeal by setting aside the impugned order. Respondent s Submissions: 9. The Learned Counsel appeared for the Respondent filed his written submissions dated 05.07.2022, which is taken on record and submitted as under. 10. The Learned Counsel submitted that it is an admitted fact that CIRP was initiated against the Corporate Debtor and called Expression of Interests inviting applications from the prospective Resolution Applicants. It is submitted that the CoC was formed with the following Financial Creditors with 100% voting share namely; i) Axis Bank with admitted amount of claim is Rs.35,51,31,447.68 with 85.5% voting share. ii) The Axis Bank retail with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Supreme Court in Vellal RCK Vs. Siva Industries and Holdings Ltd. Ors. in Civil Appeal No.1811-1812 of 2022 dated 03.06.2022, whereby the Hon ble Supreme Court held that the commercial wisdom of CoC is final . 15. In view of the reasons as stated above the Learned Counsel prayed this Bench to dismiss the Appeal as not maintainable. Analysis / Appraisal: 16. Heard the Learned Counsel for the respective parties perused the pleadings, documents and citations relied upon by them. After analysing the pleadings, the issue felt for consideration is whether the order passed by the Adjudicating Authority is in accordance with law or not? 17. The Adjudicating Authority in para 9 of the impugned order dated 28.04.2022 observed as under: It was further averred in the Application that the 8th CoC Meeting of the Corporate Debtor was held on 08.01.2022 wherein it was decided to submit the resolution for Liquidating the Corporate Debtor and making an application to NCLT for liquidation by the RP was put to e-voting. The e-voting was held between 10th January 2022 and 12th January 2022 12 Noon. Only one Financial Creditor voted the resolution and 3 financial cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Adjudicating Authority. However, the Adjudicating Authority taken note of the fact that the CoC in its 8th Meeting resolved to liquidate the Corporate Debtor and directed the RP to file an application before the Adjudicating Authority. Further, it is also undisputed that the resolution was approved by the Members of the CoC for liquidating the Corporate Debtor with 85.64% voting share. The CoC in their commercial wisdom taken the decision for liquidating the Corporate Debtor having not received any prospective Resolution Applications despite twice the EoI called for. Having no other option, the Adjudicating Authority passed the order. Further, the stand of the Appellant that he sent an e-mail on 07.01.2022 to the Respondent with regard to settlement proposal made to the Financial Creditors and requested the Respondent to consider the same. The 1st Respondent in his written submission dated 05.07.2022 at para 4 (g) stated as under: the Respondent placed the above e-mail before CoC in its 8th CoC Meeting and the CoC took note of the same. Further, the CoC opined that the terms of settlement is not acceptable as it is not commercially viable. As stated (supra) the wis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication under Clause (b) of sub-Regulation (1). 22. It is unequivocal that the Appellant has not complied with the above Regulation and therefore, giving a due weightage to a class or a category who has not complied with the provisions of law and the Regulations made thereunder cannot be considered. Since the law applies equally to all. 23. Further, the Learned Senor Counsel for the Appellant relied upon the judgment of the Hon ble Supreme Court in Swiss Ribbons Pvt. Ltd. and Anr. Vs. Union of India Ors., 2019 (4) SCC 17, however, the same is not applicable to the facts of the present case. 24. As held (supra) in the present case, despite calling EoI twice no Resolution Applications received for the Resolution of the Corporate Debtor. Therefore, the CoC took a decision in their commercial wisdom with a majority voting share to liquidate the Corporate Debtor. The fact remains that the Appellant s settlement proposal was not considered by the CoC for the reasons that it was not viable. 25. To sum up, this Tribunal comes to an irresistible and inescapable conclusion that the Appellant failed to make out any case either on law or on facts. We make it clear that there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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