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TMI Blog2023 (12) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the material on record establishes that Regulation 26 of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016 was not violated. Section 25 (2) and Regulation 21 have been complied with by the Respondents as the contents of the Notice for the Meeting and presenting all Resolution Plans at the Meetings of the CoC was duly done by the RP. Therefore, there was no violation of any Regulation of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016 to warrant interference in the approval of the Resolution Plan. Applicability of the ratio in the matter of Vijayakumar Jain Vs. Standard Chartered Bank [ 2019 (2) TMI 97 - SUPREME COURT] is applicable to the facts of this case - HELD THAT:- It is held in Vijaykumar Jain that the Law must ensure that access to this information is made available to all Creditors to the Enterprise, directly or through the RP. In the attendant case, the Appellant was well aware of the Resolution Plan and was part of all the discussions with respect to the evaluation matrix. It is significant to mention that the Appellant had not made any request seeking for the Copy of the Resolution Plan, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs. The contention that the Resolution Plan is not circulated to him does not find any basis, since the minutes of all the CoC meetings would reflect that the members present have deliberated on each of the agenda items including the Resolution Plan. There is absolutely no demur raised by the applicant in any of the CoC meetings. The averment that he came to know through the notice of the 12th CoC meeting, about the agenda items, would itself imply if not prove, that notices were being served along with agenda items, which is one of the grievances raised in the application. The fact that there were deliberations on the agenda items would show that the concerned papers were circulated to tall the members present at the meetings, including the applicant. In fact the approval of the resolution plan was done in the 12th CoC meeting, regarding which a notice along with agenda is given to the applicant. If there was any objection on the plan or any of the contentions raised, in this application, he ought to have very well raised them in the meeting itself. Having accepted all the resolutions passed in his presence, he is estopped from questioning them later. 27. Hence, on the mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e RP seeking approval of the Resolution Plan and the Appellant had sought time for filing an Impleading Application objecting to the approval of the Resolution Plan. It is submitted that the minutes of the 12th CoC Meeting on 01/01/2023 records the objections raised by the Appellant before the Adjudicating Authority. 4. It is the main case of the Appellant that failure to provide an accurate Notice to the 11th CoC Meeting dated 14/12/2022 and the failure to provide Notice to e-voting of the Resolution Plan is in contravention of Regulations 21, 24 and 26 of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016. The Learned Counsel for the Appellant in support of his contention that a Copy of the Resolution Plan ought to have been given to him placed reliance on the Judgment of the Hon ble Apex Court in the matter of Vijayakumar Jain Vs. Standard Chartered Bank reported in [(2019) 20 SCC 455], which relevant para, reads as hereunder: 16. This statutory scheme, therefore, makes it clear that though the erstwhile Board of Directors are not members of the committee of creditors, yet, they have a right to participate in each and every meeting held by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd of Director of the Corporate Debtor Company is not having a locus standi to file the present Appeal; that the Resolution Plan was approved by the CoC with 100 % voting; that the Resolution Plan was put up for voting in the 10th CoC Meeting itself on 08/12/2022, but SBI being the sole financial Creditor requested for extension of the Voting timelines in the 11th CoC Meeting by 30 days and subsequently voted on the Plan on 13/01/2022. It is submitted by the Learned Counsel for the RP that the notice for the 11th CoC Meeting to be conducted on 14/12/2022 was received by the Appellant herein and the whatsapp conversation establishes that the Appellant was aware of the 11th CoC Meeting and could have attended the same at 3.00 p.m. The change in timing was intimated to him. There are also no grounds for not contacting the RP when he had logged in at 11.30 a.m. and there was nobody present. Moreover, the minutes of the previous Meeting are always confirmed by a matter of procedure in the next Meeting and therefore, the minutes of the 11th CoC Meeting conducted on 14/12/2022 was reconfirmed in the 12th CoC Meeting conducted on 01/02/2023 and therefore, the Appellant cannot state that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance of the OTS to the Applicant. On 14/02/2023, the Applicant filed IA No. 315/2023, seeking for declaration of the process for approval of the Resolution Plan not in adherence to the provisions under IBC and to set aside the minutes of the 12th CoC Meeting. It is argued by the Learned Counsel for the third Respondent that there was never any acceptance of the OTS proposal given by the Appellant as the terms were not acceptable to SBI and therefore, the question of prejudice having been caused to the Appellant herein does not arise. 9. It is also submitted by the Learned Counsel for the SBI that the Appellant is a doctor by profession and a Director of multiple concerns occupying the position to Director in many Companies and was aware of the relevant facts and the legal right to object at the relevant time but failed to do so and therefore, is hit by the Doctrine of Waiver. The Learned Counsel concluded that between December 2022 to January 2023, the Appellant had given an OTS Proposal on 09/12/2022 and 30/01/2023. The OTS Proposal amounts provided therein were Rs. 80 Crores and Rs. 90 Crores respectively. The Resolution Plan amount by the SRA was Rs. 81.65 Crores, which clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posing the approval of the Resolution Plan; that the RP appraised the CoC regarding the mail sent by the Appellant herein to SBI on 30/01/2023, regarding his OTS offer. This establishes that the Appellant was aware regarding the CoC approval of the Resolution Plan; that CIRP period was sought to be extended. 14. It is pertinent to mention that the on 23/01/2023, the RP filed IA No. 192/2023 seeking approval of the Resolution Plan and the Bank / the Sole Financial Creditor communicated to the Appellant herein on 07/02/2023 that the OTS Proposal was rejected. It is also significant to mention that the Appellant filed IA No. 315 316/2023 on 14/02/2023 subsequent to the rejection of the OTS Proposal and also subsequent to the filing of IA No. 192/2023. On a pointed query from the Bench, it was submitted by the Learned Counsel appearing for SBI that the OTS proposals given during the period December 2022 to January 2023, i.e. on 09/12/2022 and on 30/01/2023 for Rs. 80 Crores and Rs. 90 Crores was arrived at by the Appellant only because of having attended all the CoC Meetings from 1st to the 10th CoC Meetings and also the 12th CoC Meeting and being aware of the minutes of the 11th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside the minutes of the CoC in the 12th CoC meeting dated 01.02.2023 to the extent of approval of resolution plan. (b) Any other Order(s) or relief as this Hon'ble Tribunal deems fit and proper under the circumstance of the case. IA No. 316/2023 VII. PRAYER : In the above circumstances and based on the facts of the case, it is prayed that this Hon'ble Tribunal may be pleased to: (a) Stay the proceedings in 1.A. 192 of 2023 in CP (IB) No. 206 of 2021 filed by Respondent No. I pending adjudication of the application filed for declaration of the process for approval of resolution plan as conducted by Respondent No. 1 was not in accordance with the Insolvency and Bankruptcy Code, 2016 and the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and consequently, set aside the minutes of the CoC in the 12th CoC meeting dated 01.02.2023 to the extent of approval of resolution plan. (b) Any other Order(s) or relief as this Hon'ble Tribunal deems fit and proper under the circumstance of the case. 16. It is seen from the aforenoted prayer that there was no request made f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clear cut evidence that the Appellant was never denied participation in any of the Meetings and infact had attended all the Meetings, except the 11th CoC Meeting for which, Notice was duly served to the Appellant. The prayer in the instant case is not that the Appellant was not allowed participation in the CoC Meetings, but rather that the process in the approval of the Plan is not in accordance with the Code. It is held in Vijaykumar Jain (Supra) that the Law must ensure that access to this information is made available to all Creditors to the Enterprise, directly or through the RP. In the attendant case, the Appellant was well aware of the Resolution Plan and was part of all the discussions with respect to the evaluation matrix. It is significant to mention that the Appellant had not made any request seeking for the Copy of the Resolution Plan, which is not the case in the facts of the matter of Vijaykumar Jain (Supra). Therefore, we are of the considered view that the ratio of Vijaykumar Jain cannot be made squarely applicable to the facts of the attendant case on hand. 18. For all the foregoing reasons, we are of the considered view that there is no prejudice or injury to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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