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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 ..... The Adjudicating Authority has in the Order Impugned dismissed the Applications preferred by the Appellant herein, observing as follows: 23. A perusal of the Minutes of the Meetings mentioned by the Counsel appearing for the RP would show that the Applicant had been very much present, either personally or through his representative and the deliberations of the agenda items took place in his presence. The OTS proposal was not accepted by the Bank and the same was communicated to the Applicant by letter dated 07.02.2023 by the Asst. General Manager of the Bank. The failure was due to the Applicant being not able to honour the terms of compromise despite extension of time. 24. In the 10th CoC Meeting for which, the representative of the Applicant was present, the list of the issues to be voted at the meeting were also mentioned. 25. In the 12th CoC meeting, where the Applicant was very much present. It was informed by the RP that an IA is filed for approval of the Resolution Plan. 26. Hence from the above, it is evident that the Applicant was present in almost all the meetings and he was put on proper notice about each of the meetings. The contention that the Resolution Plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e RP and these facts were gathered by the Appellant only from the minutes of the 11th CoC Meeting along with the notice for 12th CoC Meeting dated 27/01/2023. It is argued by the Learned Counsel for the Appellant that they were not intimated by the Meeting scheduled at 3.00 p.m. While so, on 20/12/2022 SBI replied to the Appellant rejecting the OTS Proposal. On 03/01/2023, the CIRP period was extended for 45 days and on 13/01/2023, the RP received the relative voting sheet for the approval of the Resolution Plan. 3. It is the case of the Appellant that it was only on receipt of Notice of the 12th CoC Meeting dated 27/01/2023 that the Appellant had become aware about the approval of the Resolution Plan and that the Letter of Intent ("LOI") was issued to the Successful Resolution Applicant ("SRA"). It is argued by the Learned Counsel for the Appellant that it was only when the Notice for the 12th CoC Meeting was issued that the Appellant was informed about the approval of the Resolution Plan on 27/01/2023. Meanwhile on 30/01/2023, an e-mail was sent by the Appellant to SBI revising the OTS Proposal. IA No. 192/2023 was filed by the RP seeking approval of the Resolution Plan and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l documents relevant for matters to be discussed and the issues to be voted upon at the meeting vide Regulation 21(3)(iii). Obviously, resolution plans are "matters to be discussed" at such meetings, and the erstwhile Board of Directors are "participants" who will discuss these issues. The expression "documents" is a wide expression which would certainly include resolution plans." 5. It is the further case of the Appellant that being unaware of Regulations 21, 24 and 26 of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016, the Appellant did not ask for the Resolution Plan during the CoC Meetings but has however, recorded its objections before the Adjudicating Authority and also specifically stated so in his affidavit. It is also argued that the doctrine of waiver does not arise as the Appellant got to know about the approval of the Resolution Plan only on 27/01/2023 and immediately thereafter, on 31/01/2023, the Appellant had recorded its Objections before the Adjudicating Authority. 6. The Learned Counsel for the first Respondent / RP submitted that the Appellant being a suspended Board of Director of the Corporate Debtor Company is not having a loc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present when one of the Prospective Resolution Applicants had requested to withdraw from the process and the evaluation matrix was discussed at length. On 09/12/2022, the Appellant had extended the OTS for Rs. 80 Crores and also deposited an amount of Rs. 1 Crore into the no lien account of the Financial Creditor. The e-voting was scheduled to be open on 11/12/2022 10.00 a.m. to 15/12/2022 5.00 p.m. The Notice for the 11th CoC Meeting was given to the Appellant on 12/12/2022. On 14/12/2022, the 11th CoC Meeting was conducted but the timing was changed from 11.30 a.m. to 2.00 p.m. due to the non-availability of the sole creditor. The time change was also intimated. The time change was also intimated which is evident from the whatsapp text to the RP. The OTS Proposal was rejected on 20/12/2022. In the 12th CoC Meeting, the Appellant was present when the RP informed that the CoC voted in favour of the Resolution Plan submitted by M/s. Square Four Housing and Development Private Limited. On 23/01/2023, the RP filed IA No. 192/2023 for approval of the Resolution Plan. On 07/02/2023, the Bank communicated the non-acceptance of the OTS to the Applicant. On 14/02/2023, the Applicant filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent by an email along with the Meeting link to the Appellant herein. The said email is reproduced as hereunder : 12. It is the case of the Appellant that the change in the timing was not informed. But the whatsapp conversation with the RP requesting for Minutes of the 11th CoC Meeting stating that 'due to sudden time change in CoC Meeting we couldn't attend that online' establishes that the Appellant was very much aware of the change in the CoC Meeting time. It is also not in dispute that the minutes of the 11th CoC Meeting were reconfirmed in the 12th CoC Meeting which was attended by the Appellant herein. To examine whether any prejudice was caused to the Appellant for not having attended the 11th CoC Meeting at 3.00 p.m., we find it apposite to reproduce the minutes of the 12th Meeting of the CoC held on 01/02/2023, which was attended by the Appellant. ( Emphasis Supplied ) 13. From the aforenoted minutes, it is clear that the minutes of the 11th Meeting of the CoC held on 14/12/2022 stood confirmed; that the Appellant wanted to file an Implead Application opposing the approval of the Resolution Plan; that the RP appraised the CoC regarding the mail sent by the Appellant he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the RP. Therefore, we are of the considered view that there was no violation of any Regulation of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016 to warrant our interference in the approval of the Resolution Plan. 15. Now, we address to whether the ratio in the matter of 'Vijayakumar Jain Vs. Standard Chartered Bank' reported in [(2019) 20 SCC 455] is applicable to the facts of this case. For better understanding of the attendant case, the reliefs sought for in IA No. 315 & 316/2023 respectively filed by the Appellant herein is reproduced as hereunder: IA No. 315/2023 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) Declare that 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 O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n trampled, and when I first voiced my objection before the Hon'ble NCLT on 31.01.2023, the Bank rejected my OTS proposal immediately vide its Letter dated 07.02.2023." 17. From this Affidavit it is clear that the Copy of the Resolution Plan was never asked for during any of the CoC Meetings whereby and whereunder the evaluation matrix and the approval of the Resolution Plan was discussed. It is the case of the Appellant that the objection regarding the Resolution Plan was raised in the 12th CoC Meeting and the Appellant herein sought to file an Impleadment Application. The fact remains that there was no request made for a copy of the Resolution Plan. In Vijayakumar Jain case, the Appellant was denied participation in the Meetings and the Appellant had filed Miscellaneous Applications before the Adjudicating Authority seeking a direction to effectively participate in these Meetings and even executed a non-disclosure Agreement for sharing the Resolution Plans of the Corporate Debtor. In the instant case, there 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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