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TMI Blog2023 (1) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the parties. This Appeal has been filed against the order dated 17.03.2022 by which order the Adjudicating Authority has allowed application filed by the Resolution Professional for approval of the Resolution Plan. The Appellant - Operational Creditor has come up in this Appeal challenging the order impugned. 3. Learned counsel for the Appellant submits that the Operational Creditor in the plan has not been allocated any amount, hence, the plan is not in accordance with the provisions of I&B Code. It is submitted that the Resolution Plan require statement that claims of all the stakeholders have been dealt with, however, there is no consideration in the plan about the claim of the Appellant - Operational Creditor. Learned counsel for the Appellant has placed reliance on judgment of this Tribunal in "Company Appeal (AT) (Ins.) No. 606 of 2019, Hammond Power Solutions Pvt. Ltd. vs. Mr. Sanjit Kumar Nayak, Resolution Professinal & Ors., decided on 14.02.2020". 4. Learned counsel for the Resolution Professional refuting the submissions of learned counsel for the Appellant contends that the liquidation value of the Appellant was Nil, hence, no amount was allocated to it in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditors. In case, resolution applicant is required to make payment higher than the proportionate amount, the payment to the assenting financial creditors shall be reduced to that extent on proportionate basis. In the event, the amount of the upfront cash is not sufficient to discharge the said liability towards the dissenting financial creditors, the remaining deficit amount will be paid from the deferred cash." 7. The aforesaid Para 30(ii) extracts Form H submitted by the Resolution Professional which clearly indicate that the Liquidation value of the Appellant is Nil. Even the Operational Creditors that is Government whose verified claim is Rs.295.18 Crores ware paid Nil. We do not find any error in the order by which no amount was allocated to the Appellant. The requirement for the obligation for payment of amount to the Operational Creditor is under Section 30(2)(b). It is not shown that there is any breach of provisions of the Section 30(2)(b). 8. The judgment of "Hammond Power Solutions Pvt. Ltd" (Supra) which is relied by learned counsel for the Appellant has been noted and distinguished by this Tribunal in the Judgment in "S. Chandriah vs. Sunil Kumar Agarwal" (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court has observed that giving NIL to Operational Creditors "would certainly not balance the interest of all stakeholders or maximise the value of assets of the Corporate Debtor if it becomes impossible to continue running its business as a going concern." 16. For these reasons, we find that the Impugned Order accepting the Resolution Plan cannot be upheld. The Resolution Plan does not appear to have taken care of interest of all stakeholders including Operational Creditors and the decision of the COC also does not reflect that it has taken into account the fact that the Corporate Debtor needs to be kept as a going concern and that there is Company Appeal (AT) (Ins) No.606 of 2019 need to maximise the value of the assets and that the interest of all the stakeholders including Operational Creditor has to be taken care of." 26. The above Judgement of this Tribunal is clearly distinguishable since present is a case where all stakeholders have been dealt with in the Plan. There is no requirement in statute that all stakeholders have to be necessarily made payment in the Resolution Plan." 9. Learned counsel for the Appellant has also referred to the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code are also provisions of law for the time being in force. Thus, while the Adjudicating Authority cannot interfere on merits with the commercial decision taken by the Committee of Creditors, the limited judicial review available is to see that the Committee of Creditors has taken into account the fact that the corporate debtor needs to keep going as a going concern during the insolvency resolution process; that it needs to maximise the value of its assets; and that the interests of all stakeholders including operational creditors has been taken care of. If the Adjudicating Authority finds, on a given set of facts, that the aforesaid parameters have not been kept in view, it may send a resolution plan back to the Committee of Creditors to resubmit such plan after satisfying the aforesaid parameters. The reasons given by the Committee of Creditors while approving a resolution plan may thus be looked at by the Adjudicating Authority only from this point of view, and once it is satisfied that the Committee of Creditors has paid attention to these key features, it must then pass the resolution plan, other things being equal." 23. The Hon'ble Supreme Court in the above judgement ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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