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TMI Blog2024 (1) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. This Appeal by Successful Resolution Applicant has been filed challenging the Order dated 01.12.2023 passed by National Company Law Tribunal, New Delhi, Court-V in I.A. No. 2594 of 2023 and I.A. No. 987 of 2023 in CP(IB) No. 1913(ND)2019. 2. Facts briefly be noted for deciding this Appeal are;- i. On an application filed by the Indian Bank, Corporate Insolvency Resolution Process commenced in the year 2021 with regard to M/s. Nimitya Hotel & Resorts Limited and IRP was appointed. C.A(AT) Ins. NO. 03 of 2022 was filed by Respondent No. 1, the Suspended Director of the Corporate Debtor challenging the Order dated 24.12.2021 which Appeal was disposed of by this Tribunal vide Order dated 04th July, 2022 permitting the Respondent No. 1 to submit a fresh proposal under Section 12A of the Code for placing it before the Committee of Creditors. ii. After the aforesaid order in the CIRP of Corporate Debtor the Resolution Plan was submitted by the Appellant on 20.08.2022 along with EMD of Rs. 5 Crores. iii. An I.A. No. 3410 of 2022 was filed by Respondent No. 1 Suspended Director in C.A.(AT) Ins. No. 03 of 2022 seeking direction to consider his settlement proposal which application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2023, this Appeal has been filed. 3. We have heard Mr. Krishnendu Datta, Learned Sr. Counsel appearing for the Appellant and Mr. P Nagesh, Learned Sr. Counsel appearing for Respondent No.1. 4. Learned Sr. Counsel for the Appellant challenging the Order dated 01st December 2023 submits that Appellant's Resolution Plan have been approved with 100% vote share on 08th January, 2023, there is no occasion for granting any opportunity to Respondent No.1 to enter into a settlement with Committee of Creditors. The Settlement Proposal submitted by Respondent No. 1 was discussed in 14th CoC meeting and the settlement proposal under 12A submitted by Respondent No.1 was rejected with 100% vote share and the Resolution Plan of the Appellant was approved. There is no occasion to give any further opportunity to the Respondent No. 1 to settle. The Order of the Adjudicating Authority granting an opportunity to the Respondent No. 1 is against the provisions of the Code. It is submitted that after approval of the Resolution Plan, there can be no opportunity to submit a settlement under 12A more so when Settlement under 12A under order of this Tribunal was considered and rejected with 100% vote sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 12A Application within a period of two months from this date. For a period till CoC takes a decision on a proposal under Section 12A, CoC may not put any Resolution Plans, if any, to vote." 8. Subsequent to the aforesaid order of this Tribunal, Respondent No. 1 has submitted settlement proposal and as per Respondent No.1 when the settlement was not considered he filed I.A. No. 3410 of 2022 in C.A.(AT) Ins. NO. 03 of 2022 which application was disposed of by this Tribunal dated 21.11.2023. Paragraph 15 and 19 of the Order is as follows: "15. The 06th, 07th and 08th CoC Meetings which have been brought on record in the Contempt Application clearly indicate the substantial part of discussions in the minutes of the CoC where with regard to the interpretation of the Order of this Tribunal dated 04.07.2022, there was divergence in the views of the Resolution Professional and the CoC with regard to the interpretation of the Order dated 04.07.2022. The Appellant has filed this Application with the prayers as noted above. The Order dated 04th July, 2022 contemplated that CoC while considering the Application under Section 12A was to keep in mind the factors as has been mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who is an MSME. By our order 21.11.2022, we have already made necessary clarification with regard to earlier judgment dated 04.07.2022. Learned Counsel for the Bank submits that in accordance with the order passed by this Tribunal dated 04.07.2022 and 21.11.2022, all steps were taken by CoC. Learned Counsel for the Applicant submits that after 20.01.2023, the Applicant/Appellant has also made efforts to meet the Chairman-cum Managing Director, but he was unsuccessful. Learned Counsel for Bank submits that CoC has already approved the Resolution Plan during the pendency of this Application We are of the view that it is open for the Applicant/Appellant to make such application, as permissible in law, before the Adjudicating Authority for consideration of this grievance, if any. Learned Counsel for the Applicant/Appellant submits that he is making offer higher than the Successful Resolution Applicant, whose plan has been approved. It is open for the Applicant to place his plea, as admissible in law, before the Adjudicating Authority. We are of the view that no case has been made out to make further order in I.A. No. 259 of 2023. Any Application filed by the Applicant shall be consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 023 passed in I.A. No. 2594 of 2023 which is as follows: "Ld. Counsel on behalf of the Resolution Professional and Ld. Counsel on behalf of Financial Creditor and Ld. Sr. Counsel on behalf of the Suspended Manage is present. CoC has already approved the Resolution Plan which is pending for consideration of this Adjudicating Authority. Suspended Management has filed certain applications proposing higher amount than proposed by the SRA for consideration of the CoC. Since, the matter is an old one, last opportunity is granted, so that any acceptable settlement can be arrived. If no settlement arises before the next date of hearing, the Resolution Plan will be heard on merits. List this Application on 11.01.2023" 14. From the facts as noticed above it is clear that Resolution Plan of the Appellant was approved with 100% vote share and settlement proposal submitted by Respondent No. 1 under 12A of the Code was considered under the order of this Tribunal in 14th CoC meeting and rejected with 100% vote share on 08th January, 2023. 15. Learned Sr. Counsel for the Respondent No. 1 has placed reliance on order of this Tribunal dated 03.02.2023 passed in I.A. No. 259 of 2023. According t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he submissions, which have been made by the learned Counsel for the parties and the material on record, following question arise for consideration: (I) Whether after approval of the Resolution Plan by Committee of Creditors under Section 30, sub-section (4) and filing an Application before the Adjudicating Authority for its approval, any Settlement Proposal under Section 12A (filed by Ex Promoter) can be entertained deferring consideration of approval of Resolution Plan by the Adjudicating Authority?" 18. This Tribunal after considering the submission made following observations in paragraph 15 and 16 which are as follows: "15. The intendment of the proviso is that there has to be special reason for making Application under Section 30A(1)(b), when it is filed after publication of invitation for Expression of Interest. The Regulation clearly indicate that when 'Expression of Interest' is issued inviting Resolution Plan, there has to be sufficient reason justifying withdrawal. 16. Regulation making Authority was well aware about the entire process under the Code, including approval of the Plan by the CoC and filing of the Application before the Adjudicating Authority for ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No.1. This is also as according to the learned counsel for respondent No.1. if the financial creditors accept the proposal and the flat buyers are involved, the process started would itself dissolve. 20. In view of the aforesaid terms while enunciating the legal proposition, we, thus, allow the appeal and set aside paragraph Nos.32 and 34 of the impugned judgment. 21. Needless to say that beyond the window of two months, if the OTS is not accepted, the appellant will be free to declare the results of the e-voting qua all the proposals." 22. The above judgment indicates that the opportunity was given to Respondent No.1 to submit one time settlement and the plan submitted by Respondent No. 1 was held to be ineligible he being promoter as entity was not MSME. In the facts of the said case, the Respondent No. 1 was given an opportunity to give a OTS. The said case was entirely different which was not considering any 12A proposal after approval of the Resolution Plan hence no help can be rendered by the said judgment to Respondent No. 1. 23. Another Judgment relied by Respondent No.1 is M.K. Rajagopalan vs. Dr. Periasamy Palani Gounder & Anr. C.A. No. 1682- 1683 of 2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve case, Hon'ble Supreme Court vide Order dated 14th June 2019 granted liberty to move an application before the Adjudicating Authority and consequently the Appellant has moved the Adjudicating Authority which had observed that CIRP can be closed only when an application under Section 12A is filed by settling the matter with approval of 90% voting share. When we come to the facts of the present case, proposal under Section 12A submitted by the Respondent No.1 was also directed by this Tribunal to be considered along with Resolution Plan as has been noticed above and CoC in its 14th CoC meeting has already considered the Resolution Plan along with settlement proposal submitted by Respondent No. 1. Thus the facts of the present case are entirely different where the Settlement proposal submitted by Respondent No.1 has already been considered by the CoC, the above Judgment does not help the Respondent No.1 in the present case. 26. Learned Sr. Counsel for the Respondent has relied on Judgments of Hon'ble Supreme Court in Swiss Ribbons Pvt. Ltd. & Anr. Vs. Union of India & Ors.(2019) 4 SCC 17 and Vallal RCK vs. Siva Industries and Holdings Ltd. and Ors. 2022 9 SCC 803 for the propositio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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