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TMI Blog2022 (9) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... s and no decision has been arrived at with respect to the approval of the Resolution Plans submitted by the Respondent Nos. 3, 4 and 5 respectively. It is found that the Applicant is not affected merely by the submission of the Resolution Plans by the Respondent Nos. 3, 4 and 5 respectively. Petition dismissed - List the main Company Petition on 31.10.2022. - IVN. P. (IB) No. 16/KB/2022 in C.P. (IB) No. 369/KB/2020 - - - Dated:- 21-9-2022 - Mr. Rohit Kapoor : Member (Judicial) And Mr. Balraj Joshi : Member (Technical) For the Applicant : Mr. Ratnanko Banerji, Sr. Adv Mr. Joy Saha, Sr. Adv Mr. D. Chowdhury, Adv. Mr. Anirban Ray, Adv. Mr. Anuj Singh, Adv. Mr. R. Dutta, Adv. Mr. Pranit Bag, Adv Mr. Pranit Bag, Adv Ms. Urmila Chakraborty, Adv. Mr. Shaunak Mitra, Adv Mr. Soumabho Ghosh, Adv. Mr. Aritra Basu, Adv. Ms. Adrika Pandey, Adv. Mr. Tanish Ganeriwala, Adv. Mr. D. Das, Adv. Mr. S. Mukherjee, Adv Mr. Shayak Milia, Adv Mr. Partha Banerjee, Adv. Mr. Aman Agarwal, Adv. For the Respondent No. 1 : Mr. Abharajit Mitra, Adv. Mr. Jishnu Chowdhury, Adv. Mr. Vikram Wadehra, Adv. Ms. Vidushi Chokhani, Adv For the Respondent No. 3 : Mr. Jishnu Saha, Sr. Adv. Mr. G. Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the market share in glass manufacturing. 2.6. The learned Counsel led us through section 19(1)(a) and section 53B of the Competition Act, 2022 as given below: Section 19: Inquiry into certain agreements and dominant position of enterprise (1) The Commission may inquire into any alleged contravention of the provisions contained in sub-section (1) of section 3 or sub-section (1) of section 4 either on its own motion or on-- (a) receipt of any information, in such manner and], accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association. Section 53B: Appeal to Appellate Tribunal (1) The Central Government or the State Government or a local authority or enterprise or any person, aggrieved by any direction, decision or order referred to in clause (a) of section 53A may prefer an appeal to the Appellate Tribunal. 2.7. The learned Counsel emphasised on the term any person in section 53B of Competition Act, 2002 and submitted that any infringement or violation of the provisions of section 5 of the Competition Act, 2002 may be reported to the Competition Commission of India by any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proval of the Competition Commission of India is required to be obtained as per section 31(4) of the Code. 2.14. The learned Counsel further relied on Arcelormittal India Private Limited v. Abhijit Guhathakurta (2019) SCC OnLine NCLAT 920 and Makalu Trading Limited v. Rajiv Chakraborty (2020) SCC OnLine NCLAT 643 wherein a notice of combination was sent to the Competition Commission of India after the Resolution Plan was approved by the Committee of Creditors, Vishal Vijay Kalantriv v. Shailen Shah (2020) SCC OnLine NCLAT 1013 wherein no approval of the Competition Commission of India was sought since the proposed combination was below the threshold limit requiring approval of the Competition Commission of India. 2.15. The Learned Counsel therefore prayed for direction upon Respondents Nos. 3, 4 and 5 to withdraw their Resolution Plan and that Resolution Plans that attract the combination under the Competition Act, 2002 shall not be entertained by the Resolution Professional and the Committee of Creditors. 3. Submission of the learned Counsel for Respondent No. 2 3.1. The learned Counsel for the Committee of Creditors raised two defences: 3.1.1. The locus sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Committee of Creditors is at the stage of deliberations and discussions with the prospective Resolution Applicants and the Resolution Applicant will approach the Competition Commission of India, if so required. 4. Submission of the learned Counsel for Respondent No. 3 4.1. The learned Counsel submitted that the Intervention Petition is non-maintainable and deserves to be dismissed in liminie in view of the judgment of Arcelor-Mittal India (supra.) (paragraph 84) and that the Applicant is an alien to the CIRP process. Such objections are to prevent the consideration of the Resolution Plans and to frustrate the entire CIRP of the Corporate Debtor. 4.2. The Respondent No. 3 has applied for pre consultation for green channel from the Competition Commission of India and that the approval of either Resolution Plan of the Respondent No. 3 or Respondent No. 4 by the Adjudicating Authority is subject to the approval of the Competition Commission of India. 4.3. This Adjudicating Authority cannot adjudicate whether there is a combination under section 5 of the Competition act 2002 or not and it is solely within the domain the Competition Commission of India. 5. Submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case is yet to take a call on resolution plan/s before it. Feasibility and viability of a resolution plan has to be seen by CoC in terms of Regulation 39 of the Insolvency and Bankruptcy Code, 2016 (31 of 2016) is reproduced hereinafter: 39(3)(a)(b)(c) - The committee shall- evaluate the resolution plans received under sub-regulation (2) as per evaluation matrix; record its deliberations on the feasibility and viability of each resolution plan; and vote on all such resolution plans simultaneously. We, without expressing any opinion on any of the rival contentions (Relating to alleged infirmities of the Resolution Plan) of the parties before us in this IA, therefore, hold that this application is not maintainable as the contentions raised in it and reliefs prayed for cannot be entertained or granted at this stage. 6.4. Hence, it is clear that before approval of the Resolution Plan, all the compliances have to be met by the Resolution Applicants. At this stage the Resolution Plans are under consideration of the Committee of Creditors and no decision has been arrived at with respect to the approval of the Resolution Plans submitted by the Respondent Nos. 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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