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TMI Blog2022 (11) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... the proposal of settlement submitted by the Appellant, the objective as contemplated in paragraph 14(iii) cannot be achieved - the Order dated 04.07.2022 clearly entitled that the CoC to weigh the Resolution Plans as well as Settlement Proposal together. It is well settled that it is the commercial decision of the CoC which is paramount in the CIRP. The Appellant who is suspended Director of the Corporate Debtor who has already submitted Settlement Proposal was permitted to participate in the meeting of the CoC which is apparent from the minutes of the CoC brought on record - Appellant who was representing the Corporate Debtor and has submitted the Settlement Proposal is entitled to participate in deliberation and negotiation undertaken by the CoC. CoC can very well ask the Resolution Applicants to revise their plans similarly the Appellant can always be asked to revise his proposal to match the Resolution Applicants Offer. It goes without saying that ultimate decision is of the CoC. Application disposed off. - [ Justice Ashok Bhushan ] Chairperson And [ Mr. Naresh Salecha ] Member ( Technical ) For the Appellant : Mr. Abhijeet Sinha , Kumar Anurag Singh , Mr. Naku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al (AT) (Insolvency) No. 03/2022 CoC is unfettered. However, in the facts of the present case, we are of the view that CoC while taking a decision for accepting or rejecting of proposal under Section 12A may also take following factors into consideration:- (i) The Bank had issued a proposal for sale of NPA of the Corporate Debtor to the Asset Reconstruction Companies (ARC s)/ Non-Banking Financial Companies (NBFC s)/ Financial Institution (FI s) for an amount of Rs.81 Crores. (ii) Whether the Financial Creditor looking to the assets of the Corporate Debtor shall be able to realise an amount more than offered by the Appellant either in the insolvency resolution process by Resolution Plan or a liquidation process. (iii) The maximisation of the assets of the Corporate Debtor is one of the objectives, equally important is the recovery of the financial dues of the Bank and we have no doubt that CoC while taking a decision shall take decision under which it shall be able to realise its dues to the maximum. (iv) The CoC having been constituted after our order dated 15.03.2022 may also proceed to issue Form-G and receive the Resolution Plans. However, till the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of CoC stated that contents of Resolution Plan be disclosed so they can take decision on Settlement Proposal of Sanjeev Mahajan. In Item No. A4, following is extracted from the parts of minutes of the Meeting: Mr. N C Nehra, CoC member, Indian Bank, referred to the point no. 14 of order of Hon ble NCLAT stating that the contents of the resolution plans shall be disclosed so that they can take a decision on the settlement proposal of Sanjeev Mahajan . 6. The Appellant was also present and submitted that there was no objection in opening of the Resolution Plan. Resolution Professional took the view that plan can not be discussed and disclosed to Committee of Creditors. It would be tantamount to adjudication. The interpretation put by the Resolution Professional to the Judgement of this Tribunal dated 04.07.2022 was strongly opposed by the CoC Member. The view of the CoC Member as recorded in the 07th CoC meeting while discussing the Item No. A4 is as follows: The CoC member strongly opposed the interpretation of the said order of RP and stated that the order states not to vote on the resolution plans, however, the contents can be disclosed to the CoC. The CoC member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... understand the judgement and submit the same to their HO and legal counsel. Both suspended board and CoC member could not arrive at any consensus. The RP informed the CoC member, that the director can be present in the meeting at the time of opening of the plans. However, CoC member refused to open the resolution plan in front of the suspended Board and therefore, the agenda was deferred to the next CoC meeting, meanwhile, RP and CoC would obtain a legal opinion on the said matter. The members took note of the same. 9. In I.A. No. 3410 of 2022, following prayers have been made: a) Allow the instant application and direct the Respondent/CoC to negotiate, deliberate and take a decision on the settlement proposal U/s 12A given by the Applicant along with the plans received by the Prospective Resolution Applicants. And/or; b) The Applicant be allowed to submit a Resolution Plan. c) Pass any further order(s) in the interest of justice. 10. Mr. Abhijeet Sinha, Learned Counsel for the Appellant submitted that the Judgement passed by this Tribunal on 04.07.2022 has not been correctly understood both by the Resolution Professional and CoC in its true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pretation of the Order dated 04.07.2022. The Appellant has filed this Application with the prayers as noted above. The Order dated 04th July, 2022 contemplated that CoC while considering the Application under Section 12A was to keep in mind the factors as has been mentioned in paragraph 14 of the Judgment dated 04.07.2022. It has already been noticed in the Judgement that maximisation of the assets of the Corporate Debtor is one of the objectives and equally important is recovery of the financial dues of the Bank. The proposal of Applicant under section 12A for Settlement has naturally to be weighed against the Resolution Plans received in the process unless the Resolution Plans are opened and deliberated side by side with the proposal of settlement submitted by the Appellant, the objective as contemplated in paragraph 14(iii) cannot be achieved. We thus are of the view that the Order dated 04.07.2022 clearly entitled that the CoC to weigh the Resolution Plans as well as Settlement Proposal together. 16. It is well settled that it is the commercial decision of the CoC which is paramount in the CIRP. The Appellant who is suspended Director of the Corporate Debtor who has already ..... X X X X Extracts X X X X X X X X Extracts X X X X
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