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TMI Blog2023 (6) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... a Merla , Member ( Technical ) ] 1. Challenge in this 'Appeal', is to the Impugned Order dated 14/10/2021, passed in IA No. 1114/2020 in C.P.(IB)/679/7/HDB/2018 by National Company Law Tribunal, Hyderabad Bench, Hyderabad, by which Order, the 'Adjudicating Authority' has dismissed the 'Application', filed by the 'Resolution Professional/ RP, under Section 31(1) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'the Code'), seeking approval of the Resolution Plan. 2. While rejecting the said 'Application', the Adjudicating Authority has observed as follows: 9. We heard the Learned Counsel for the Applicant. After the case was reserved for passing orders, this Adjudicating Authority observed that co-resolution Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls Limited has taken a view that the resolution plan submitted by an ARC requires prior approval from the Reserve Bank of India. (RBI) under SARFAESI Act. This Bench rely on para 85 of Hon'ble Supreme Court judgement in the matter of Manish Kumar vs Union of India [2021) SCC Online SC 3011, which is reproduced hereunder:- "The resolution professional has to examine each resolution plan received by him on the basis of the invitation made by the resolution professional under Section 25(h) and ascertain whether the plan is in conformity with the various criteria mentioned in Section 30(2) of the Code. The matter is thereafter put up by the resolution professional before the committee of creditors. Al resolution plans which conform to the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act a s such by RBI. Hence, RA will require approval o f R B I to acquire shares in the corporate applicants. The RA submits that it shall apply for such approval after the Resolution Plan is approved by this Adjudicating Authority." The Reserve Bank India denied the approval and a show cause notice has been issued on 12thNovember,2020, as to why action ought not to be taken for violating section1 0of the SARFAESI Act. It is this show cause notice, issued by the Reserve Bank of India, which has been challenged by the Petitioner in the present petition. Vide order dated 27th November 2020, the show cause notice dated 12th November 2020 was stayed by this Court". 13. We also feel the resolution plan submitted by the CoC before the Adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though a Co-Resolution Applicant, was not proposing to acquire any Equity Shareholding and that the other Co-Resolution Applicants were to solely acquire the Shareholding and run the business and therefore at the very outset, the analogy drawn by the Adjudicating Authority is incorrect as facts are distinguishable. It is also submitted that the Appellant is an 'Aggrieved Person' as elucidated under Section 61(1) of the Code. 6. This Tribunal, vide Order dated 14/06/2022, deemed it appropriate to seek the view of RBI and therefore the Appellant filed IA No. 743/2022, seeking to implead 'RBI' and 'Long View Resources (HK) Private Ltd.', the Co-Resolution Applicants. 7. The Learned Counsel appearing for the proposed Party Mr. Chevanan Mohan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticipating as a Resolution Co-Applicant under the Code. It is submitted in Para 4 of the Notes of Submissions that ARC does not require prior approval of RBI for participating as a Resolution Co-Applicant. The relevant Paragraph is reproduced as herein: "It is further submitted that an ARC does not require prior approval of RBI for participating as a 'resolution co-applicant' under IBC provided any of the activities undertaken by the ARC as part of the resolution plan submitted by it is not prohibited under SARFAESI Act. Hence, prima facie, when an ARC is a resolution "co-applicant", as is in the instant case, RBI's prior approval is not always required. Thus, there is no need to make RBI a party in the present appeal." [Emphasis Suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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