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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 ..... fessional ("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")to improve the Resolution Plan. The Appellant offered Rs.24.51 crores. (iii) On Application filed by the RP, extension was granted by the Adjudicating Authority of 90 days and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 and the revised Plan submitted by the Appellant was under consideration. It is submitted that granting extension of CIRP was well within the jurisdiction of the Adjudicating Authority. The 300 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 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 informed Mr. Ramneek Goel that he has received a Resolution Plan from another Applicant in which the applicant has proposed plan amount of Rs. 27.06 Cr and further asked Mr. Ramneek Goel to increase the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 CIRP period is required. Further the representative of the Canara Bank asked RP that what commitment can be taken from Mr. Sunil Bajaj as the CoC is considering to issue fresh Form-G only because of the interest shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 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 legal proceedings is largely due to factors owing to which the fault cannot be ascribed to the litigants before the Adjudicating Authority and/or Appellate Tribunal, the delay or a large part thereof being attributable to the tardy process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. Therefore, they have filed these Appeals assailing the order. Both the Appeals are disposed of by this common Judgment. 2. Brief facts of the case are that, on 10.10.2019 the Adjudicating Authority passed an order in CP (IB) 2156/MB/2019 file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Plan received before the expiry of 330 days of CIRP period. This Tribunal in paragraph 115, thus issued direction to consider the Plan, which were received before the due date. The present is not a case where Resolution Plan of Respondent No.1 is being considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 CoC took a decision to issue fresh Form-G to give opportunity to all with the object of maximizing the value of Corporate Debtor. The Adjudicating Authority had not committed any error in granting extension of 90 days period after expiry of 300 days to complete the process. Exclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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