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TMI Blog2023 (8) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... iring on 15.04.2021 and prior to expiry of the 300 days period, a decision was taken to re-publish Form-G. The CoC has reason to take a decision since they received an email from Respondent No.1 offering higher value. The objective of the IBC is to maximize the value of the Corporate Debtor and decision taken by the CoC to re-publish Form-G cannot be faulted in the facts of the present case. Reference made to judgment of this Tribunal in Vistra ITCL (India) Ltd. v. torrent Investments Pvt. Ltd. Ors. [ 2023 (3) TMI 176 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] wherein this Tribunal while deciding the jurisdiction of CoC to re-issue RFRP held even after completion of Challenge Mechanism under Regulation 39(1A)(b), the CoC retain its jurisdiction to negotiate with one or other Resolution Applicants, or to annul the Resolution Process and embark on to re-issue RFRP. Regulation 39(1A) cannot be read as a fetter on the powers of the CoC to discuss and deliberate and take further steps of negotiations with the Resolution Applicants, which resolutions are received after completion of Challenge Mechanism. The present is not a case that EOI from Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been filed against the order dated 13.06.2023 passed by the National Company Law Tribunal, Chandigarh Bench, Chandigarh in IA Nos.326/2021 filed by the Resolution Professional ( RP ) praying for extension/ exclusion of 90 days for re-publication of invitation for the Expression of Interest ( EOI ) (Form-G). IA No.328/2021 was filed by the Appellant seeking various prayers and IA No.329/2021 was filed praying for interim relief in main application in IA No.328/2021. The Adjudicating Authority by the impugned order dated 13.06.2023 has allowed the IA No.326/2021 filed by the RP granting extension of 90 days. IA No.328/2021 filed by the Appellant was rejected and IA No.329/2021 held to have rendered infructuous. The Appellant aggrieved by the order dated 13.06.2023 has filed this Appeal. 2. Brief facts necessary to be noticed for deciding this Appeal are: (i) CIRP against the Corporate Debtor Nexgen Laminators Private Limited commenced by order dated 25.11.2019. Form- G was issued by the RP on 08.02.2020 and 30.06.2020. (ii) In response to Form-G published on 30.06.2020, the Appellant submitted his EOI. The Appellant was asked by the Committee of Creditors ( CoC )t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. It is submitted that Resolution Plan can be submitted only when two pre-conditions are satisfied, i.e., person must have applied pursuant to Form-G and should have been part of the final list of Prospective Resolution Applicants ( PRA )and only thereafter, as per Regulation 36-B(1) request for a Resolution Plan can be issued by RP to such PRA appearing in the final list. It is submitted that RP has committed breach of confidentiality and the Application filed by the Appellant before the Adjudicating Authority praying for inquiry regarding breach of confidentiality has wrongly been rejected on the ground that Adjudicating Authority has only a summary jurisdiction and such inquiry cannot be undertaken. The decision to issue fresh Form-G is not a commercial wisdom of the CoC. The learned Counsel for the Appellant placed reliance on some other judgments of this Tribunal and Hon ble Supreme Court, which shall be noted hereinafter. 4. The learned Counsel for the RP refuting the submissions of learned Counsel for the Appellant submits that the Appellant was only a Resolution Applicant, whose Plan was never approved by the CoC. Rather, the said Plan was earlier rejected by the CoC an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o first notice the Minutes of the 19th CoC Meeting, where CoC deliberated on various aspects, which were before it. The Minutes of the 19th CoC Meeting held on 12.04.2021 has brought on record as Annexure A-18, Vol.IV to the Appeal. In Item No.19.04 with regard to revised Resolution Plan received from the Appellant, the RP submitted before the CoC that revised Resolution Plan was received from the Appellant. RP further apprised the CoC about the new development that 15 minutes prior to the CoC Meeting, the RP has received an email from Mr. Sunil Bajaj, wherein a Resolution Plan for an amount of Rs.27.06 crores has been submitted. There was certain difference of opinion between the CoC Members, regarding the course of action, the RP has also informed the Appellant that he has received the Resolution Plan from another Applicant in which the Applicant has proposed Plan amount of Rs.27.06 Crores and Appellant was asked to increase the Plan amount. It is recorded in the Minutes that Appellant replied that he cannot further improve the Plan. It is useful to extract the relevant portion of the Minutes of the 19th Meeting of the CoC, which is to the following effect: Thereafter RP inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ease the plan amount even if from-G is published again. RP asked Mr. Ramneek Goel that is he having any objection if CoC decided to publish Form-G again to which Mr. Ramneek Goel replied that he has no objection. 9. The above Minutes clearly shows that the Appellant informed the RP that he is not ready to increase the Plan amount and he has no objection, if CoC decides to publish Form-G again. After some deliberations on the Agenda Items, the CoC decided to re-publish the Form-G. It is useful to extract the following part of the Minutes: The matter was deliberated upon in detail and the representative of Canara Bank asked that if agenda for publication of Form-G is approved than how much time will be required in the whole process of publication of Form-G till the submission of Resolution Plan by the Prospective Resolution Applicant to which RP replied that minimum 60 to 65 days is required and after that 15 days shall required for the negotiation and minimum 10 days for the approval of the plan from the higher authorities of the Financial Creditors and in short if the Coe decides to go for issuance of fresh Form-G than in that case extension for at least 90 days of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that it is only in exceptional cases that extension of time can be granted, the general rule being 330 days is the outer limit. Following was observed in paragraph 127: 127. .Thus, while leaving the provision otherwise intact, we strike down the word mandatorily as being manifestly arbitrary under Article 14 of the Constitution of India and as being an excessive and unreasonable restriction on the litigant's right to carry on business under Article 19(1)(g) of the Constitution. The effect of this declaration is that ordinarily the time taken in relation to the corporate resolution process of the corporate debtor must be completed within the outer limit of 330 days from the insolvency commencement date, including extensions and the time taken in legal proceedings. However, on the facts of a given case, if it can be shown to the Adjudicating Authority and/or Appellate Tribunal under the Code that only a short period is left for completion of the insolvency resolution process beyond 330 days, and that it would be in the interest of all stakeholders that the corporate debtor be put back on its feet instead of being sent into liquidation and that the time taken in lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich resolutions are received after completion of Challenge Mechanism. 14. The learned Counsel for the Appellant has placed reliance on the judgment of this Tribunal in Dwarkadhish Sakhar Karkhana Limited v. Pankaj Joshi Company Appeal (AT) (Insolvency) No.233 of 2021. The judgment of this Tribunal Dwarkadhish Sakhar Karkhana Ltd. was a case where the order passed by the Adjudicating Authority accepting the Expression of Interest of Dwarkadhish Sakhar Karkhana Ltd. after due date was set-aside by the Adjudicating Authority vide order dated 01.03.2021, which order came to be challenged in the Appellate Tribunal. The facts in the above case, as noticed in paragraph 1 to 3, which are relevant is reproduced as below: 1. The Adjudicating Authority (National Company Law Tribunal, Special Bench, Mumbai) by the impugned order dated 01.03.2021 allowed the Application of Gangamai Industries and Constructions Ltd. (GIACL) I.A. No. 1029 of 2020 in CP (IB) 2056/MB/2019,whereby the decision of CoC accepting the Expression of Interest (EOI) of Dwarkadhish Sakhar Karkhana Ltd. (DSKL) after due date, was set aside and deprecated the conduct of Resolution Professional (RP) Pankaj Joshi. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission from the CoC to issue a request for Resolution Plan to an eligible Prospective Resolution Applicant . This is not the position in this case the request for submission of EOI after due date was rejected by the CoC then there is no question to issue a request for resolution plan to DSKL. 16. The present is not a case that EOI from Respondent No.1 has been received after the due date. Rather, a decision was taken to re-publish the Form-G, giving opportunity to all including the Appellant and Respondent No.1. Thus, the judgment of this Tribunal in Dwarkadhish Sakhar Karkhana Ltd. is clearly distinguishable. 17. Another judgment relied on by learned Counsel for the Appellant is judgment of this Tribunal in Committee of Creditors of Meenakshi Energy Ltd. v. Consortium of Prudent ARC Ltd. Vizag Minerals and Logistics P Ltd. - Company Appeal(AT) (CH)(Insolvency) No. 166 of 2021 where order dated 24.06.2021 passed by the Adjudicating Authority was under challenge. In the facts of the above case, after expiry of 330 days, the Resolution Plan was accepted. The Adjudicating Authority vide order dated 24.06.2021 directed the CoC and Resolution Applicant to only consider the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olvency resolution process. However, in the facts of the present case, especially when the Appellant was asked in the 19th Meeting of the CoC to increase its Plan value and further has submitted that he has no objection for issuance of fresh Form-G, which is recorded in the Minutes, the CoC decided to issue fresh Form-G for giving opportunity to all eligible candidates including the Appellant, no exception can be taken to the process. Respondent No.1 in his application has categorically pleaded that he has filed Resolution Plan on the basis of information, which are available in the public domain, hence, any inquiry on alleged breach of confidentiality was not called for in the facts of the present case. 20. As noted above, in pursuance of the fresh Form-G issued on 16.06.2023, 14 EOIs have been received. The Appellant was only a Resolution Applicant and cannot have any vested right that it is his application alone, which should be voted and approved. The CoC has ample jurisdiction under the IBBI Regulations, 2016. 21. As observed above, the present is not a case that Resolution Plan submitted by Respondent No.1 by email before 15.04.2021 was considered on merits. Rather, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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