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TMI Blog2022 (2) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... t maintainable. - I.A (IB) No. 131/KB/2022 In C.P. (IB) No. 184/KB/2018 - - - Dated:- 16-2-2022 - Mr. Rohit Kapoor, Member (Judicial) And Mr. Harish Chander Suri, Member (Technical) For applicant: Mr. Abhrajit Mitra, Sr. Adv., Mr. Jishnu Chowdhury, Adv., Mr. Ritoban Sarkar, Adv., Mr. Supriyo Gole, Adv., Mr. Shounak Mukhopadhyay, Adv. For Respondent: Mr. Joy Saha, Sr. Adv., Mr. Dipankar Das, Adv., Ms. Sanjana Nandi, Adv., Mr. Mohd. Azeem, Adv., Mr. Ajay Gaggar, Adv., Mr. Uttiyo Mallick, Adv., Ms. Manju Bhuteria, Adv., Ms. Suparna Sardar, Adv., For Merico : Mr. Jishnu Saha, Sr. Adv. And Mr. Ishaan Saha, Adv. ORDER PER: ROHIT KAPOOR, MEMBER (JUDICIAL): 1. This Court convened through video conferencing. 2. The Interlocutory Application No. 131 of 2022 has been filed by the Applicant Aska Investments Private Limited under section 60(5) of the Insolvency and Bankruptcy Code, 2016 (IBC), seeking the following reliefs: a. An order/orders and/or direction/directions cancelling and/or setting aside the revised report on eligibility of legal general compliance of resolution applicant Uniglobal Paper Private Limited in consortium with trade sea inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Resolution Plans (submitted by R3) placed by the RP (R1) for CoC s consideration to be apparently non-compliant. The infirmities in the plan are summarised as follows:- i. Cl. 2.8(2) at page 196 of the application-Termination of third party s agreement and recovery of possession and management of four tea gardens from such third party simultaneously with the approval of the plan. Third party contracts can be impacted/modified/ terminated only with the approval of such third party. Recovery of possession from third party cannot also be had through a resolution plan. In this regard, reliance has been placed on: I. K.L. Jute Products Private Limited v. Tirupati Jute Industries Ltd. and Ors. [MANU/NL/0131/2020] Para 2(26) 2(27) and paras 64 and 65. The civil appeal to the Supreme Court from the above judgment of NCLAT has been withdrawn. II. Jaypee Kensington Boulevard Apartments v NBCC India Ltd. Civil Appeal no. 3395 of 2020, para 103 III. Re: Namdhari Food International (P.) Ltd. [MANU/NC/0010/2019] paras 17 18 ii. Para 2.2.16 (page 185 of the application) extinguishes future (gratuity) liability yet to be crystallised. The same is not permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30(3) of the Code and Regulation 39(2) of the CIRP Regulations. 3. The respondent no. 1 was also not entitled to certify the impugned resolution plan as being non-compliant of the provisions of Section 30(2) of the Code and Regulation 38 of the CIRP Regulations. 4. The respondent no. 1 was also not entitled to prepare the proposed resolution for approval of the CoC approving of the impugned Resolution Plan for the 23rd meeting of the respondent no. 2 held on 28th January, 2022. 5. The Respondent no. 2 was not entitled to consider the impugned Resolution Plan in view of Regulation 39(1B) of the CIRP Regulations. 6. The Respondent nos. 1 and 2 were not entitled to put the proposed Resolution Plan up for e-voting by the CoC. 7. The e-voting has commenced on 1st February, 2022 for 12 days and will be concluded on 12th February, 2022. 8. The Applicant states and submits that if the respondent no. 2 were to be allowed to proceed with e-voting in relation to the impugned Resolution Plan, which was not even supposed to be submitted or presented before or considered by the respondent no. 2, it would cause further delay in the already delayed CIRP of the Corporate Debtor wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above. D. Submissions on behalf of Respondent No. 3 6. It is submitted that the Resolution Plan has been filed by Respondent No. 3 sometime in January, 2021 and thereafter has been revised from time to time as required by CoC / RP. The applicant being member of CoC was all along aware about Resolution Plan. The present application has been filed only after the Resolution Plan has been put to vote. It is further stated, the applicant along with other 3 groups of company s being member of CoC with 0.70% voting share are trying to create hurdles from time to time for completion of CIRP process with mala-fide intentions. 7. Respondent No. 3 is prospective resolution applicant, Uniglobal Papers Private Limited, has refuted the contentions of the applicant. It has been stated by the Ld. Counsel on behalf of Respondent No. 3 that this application has been filed at the instance of one Merico . According to Ld. Counsel appearing for R3, it is alarming that the applicant a member of CoC is supporting Merico Group against whom an application under section 66 of IBC and other applications challenging illegal occupation are pending. 8. It has further been stated on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trying to espouse. 6. Merico Agro Industries Private Limited has no locus in the present Application as it is not a party herein. Secondly, as prayed for on their behalf, under no provision can such third party be accorded a hearing before the Committee of Creditors as it is impermissible under the Code. 7. Ld. Sr. Counsel for RP has further stated, being a member of the Committee of Creditors, Applicant has chosen to come before this Tribunal at the Eleventh hour when the voting on Resolution Plans is ongoing and shall be duly completed within one week. The following are the timelines: Date Particulars 29.09.2020 Request For Resolution Plan (RFRP) 30.11.2020 Submission of First Version of the Resolution Plan 29.03.2021 Submission of Second Version of the Resolution Plan 24.05.2021 Submission of Third Version of the Resolution Plan 08.07.2021 Submission of Fourth Version of the Resolution Plan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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