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TMI Blog2024 (5) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... There are substance in the submission of the Counsel for the Appellant that process adopted by the Adjudicating Authority in proceeding to allow application has violated the Principles of Natural Justice. No notice was issued in the application, no reply was called on the applications and while allowing the said application the entire plan which was approved has been remitted for reconsideration - the impugned order deserves to be set aside on the ground of violation of Principles of Natural Justice. The Hon ble Supreme Court further in Ramkrishna Forgings Limited vs. Ravindra Loonkar, Resolution Profession of ACIL Limited Anr., [ 2023 (11) TMI 910 - SUPREME COURT ] again reiterated that Adjudicating Authority has jurisdiction only under Section 31(2) of the Code, which gives power not to approve the Plan, only when the Resolution Plan does not meet the requirements of the Code. The observation that in absence of any discrimination or perverse decision, it is not open to the Adjudicating Authority or this Appellate Tribunal to modify the Plan was in reference of the claim of Operational Creditor, which was under consideration in the said Appeal. The expression discrimination has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra, Ms. Priyashree Sharma, Mr. Shivansh Agarwal and Mr. Krishnan Agarwal, Advocates for Intervenor in I.A. No. 1214/2024 Mr. Kapil Sibal, Mr. Ramji Srinivasan, Sr. Advocates with Ms. Ruby Singh Ahuja, Ms. Hancy Maini, Mr. Varun Khanna, Mr. Devang Kumar, Mr. Manisha Singh and Ms. Namrata Saraooh, Advocates for R-3 JUDGMENT ASHOK BHUSHAN , J. These three Appeals have been filed against the Order dated 06.10.2023, passed by the Learned Adjudicating Authority (National Company Law Tribunal, Mumbai Bench, Court IV). 2. Comp. App. (AT) (Ins.) No. 1395-1397 of 2023 have been filed against the Order dated 06.10.2023 passed in I.A. 3399/2023 and I.A. 3336/2023 as well as in I.A. No. 2794/2023 in C.P.(IB)-893(MB)/2021. Comp. App. (AT) (Ins.) No. 1445 of 2023 has been filed challenging the order dated 06.10.2023 passed in I.A. 3336/2023 in I.A. 2794/2023 in C.P.(IB)-893(MB)/2021. Comp. App. (AT) (Ins.) No. 1535/2023 has been filed challenging the order dated 06.10.2023 in I.A. 3399/2023 in I.A. No. 2794/2023 in C.P.(IB)-893(MB)/2021. 3. All the appeals having arisen out of the same order dated 06.10.2023, all the appeals have been heard together and are being decided by this common Judgment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee of INR 150 Crores. xvi. On 12.06.2023, SEML unconditionally accepted the LoI and submitted Performance Guarantee of INR 150 Crores in favour of Bank of Baroda (BoB). xvii. On 17.06.2023, RP filed an I.A. No. 2794/2023 before the Adjudicating Authority for approval of SEML Plan as approved by the CoC. xviii. On 20.06.2023, RP informed Torrent Power Ltd. and other Resolution Applicants about the approval of the Resolution Plan by the CoC. xix. The Earnest Money Deposit (EMD) received from other Resolution Applicants were refunded by the RP. xx. I.A. 2794/2023 was heard by the Adjudicating Authority and by order dated 10.07.2023, reserved for orders. xxi. On 01.08.2023, I.A. 3336/2023 was filed by Vantage Point Asset Management Pte Ltd., an unsuccessful Resolution Applicant praying for various reliefs in the application. xxii. On 03.08.2023, I.A. 3399/2023 was filed by Torrent Power Limited, an unsuccessful Resolution Applicant seeking various prayers. xxiii. On 07.08.2023, I.A. 3336/2023 and I.A. 3399 of 2023 were heard and reserved for orders. xxiv. By order dated 07.08.2023, Adjudicating Authority also directed the RP to place on record the correspondence with Resolution Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n lies solely with the CoC in their commercial wisdom. 11. In the present case, Adjudicating Authority undertook exercise in analysing the interpretation of financial data before the CoC including comparison on the terms of the Resolution Plan/addendums and clarifications and review of the emails, evaluation matrix, CoC minutes etc. Adjudicating Authority undertook its own assessment of how various Resolution Plans should have been scored on the Evaluation Matrix. Adjudicating Authority undertook its own analysis and assessment of what should or should not have been considered by the CoC in the upfront amounts offered by Resolution Applicants. Adjudicating Authority exceeded the jurisdiction vested under the Code while considering the approval of the Resolution Plan. 12. Adjudicating Authority embarked on process exercise and termed it perverse justifying interference in the approval of Resolution Plan which is impermissible. Judgment of this Tribunal in `Darshak Enterprises and PNC Infratech was misinterpreted by the Adjudicating Authority in finding a new ground to challenge the Resolution Plan. The CoC of the Corporate Debtor consisted of BoB and State Bank of India (SBI), India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Resolution Plan the assessment and evaluation taken by the Adjudicating Authority is ex-facie incorrect and contradictory. Adjudicating Authority has made incorrect conclusion that SEML proposal only relate to INR 122.23 Crores of Margin Money and INR 58.08 Crores was not accruing to the Financial Creditor. 18. No clarification from RP or Process Advisor was sought by the Adjudicating Authority. Adjudicating Authority finding that equity value was not assigned by the review in the scoring of Resolution Plan of two PRA was again an incorrect assumption by the Adjudicating Authority. 19. On the Affidavits filed by the RP on 21.08.2023 i.e., after reserving of the order, no hearing was given nor any opportunity was given to respond the pleadings and documents, whereas the documents and pleadings brought on record after the reserving of the order were looked into. The process followed by Adjudicating Authority is in violation of the Principles of Natural Justice. 20. Sh. Arvind Nayar Sr. Advocate appearing for the Vantage Point Asset Management Pte. Ltd. challenging the order of the Adjudicating Authority rejecting I.A. 3336/2023 contends that the Vantage Point Asset Management P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority. 22. On the submission of the CoC and RP to substantiate their stand relying on 34th Meeting of the CoC held on 18.10.2023 pursuant to the impugned order of the Adjudicating Authority where CoC has arrived at the same conclusion and found the finding of the Adjudicating Authority to factually inaccurate, it is submitted that any subsequent Resolution of the CoC as alleged in Meeting dated 18.10.2023 cannot cure the deficiency as noticed by Adjudicating Authority in the impugned order. It is further submitted that Minutes of the Meeting dated 18.10.2023 has not been placed on the record of this Tribunal, hence the same cannot be relied for any purpose. 23. Adjudicating Authority has rightly taken the view that applications can be examined only on the issue of discussion of perversity. It is submitted that RP, by disguise of seeking clarification by email dated 08.05.2023 has given an opportunity to the SRA to change its commercial data. 24. In reply sent by SRA on 10.05.2023 by addendum, SRA has clarified about the discounted offer up to 240 Crores, which is a different offer. RP did allow the SRA to make a disguised changed offer which is discriminatory towards other Resoluti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that equity offered by Jindal Power Limited and Vantage Point Asset Management Pte. Ltd. should have been valued by an addendum to such amount and scoring should have been carried out accordingly. It is submitted that after reserving the order by the Adjudicating Authority, application filed by Torrent Power Ltd. and Vantage Point Asset Management Pte. Ltd. ought not to have entertained and the Adjudicating Authority was to consider the averments and pleadings in the application. Opportunity ought to have been given to the RP to file its Reply and explain the process. 31. In accordance with the impugned order the Resolution Plans received by the RP were reviewed by the CoC in 34th CoC Meeting dated 19.10.2023 wherein CoC has affirmed the said position and has re-verified the numbers and affirmed that RP did not place incorrect or incomplete Financial Data before the CoC. 32. Learned Counsel for the CoC submits that CoC approved the Resolution Plan of the SEML after evaluating it on a myriad factor in terms of the request of the Resolution Plan and considering its overall viability and feasibility which decision of the CoC is non-justiciable. It is submitted that under RFRP and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riteria considered the equity upside offered to the financial creditors within 6 months as upfront cash. It is submitted that application of Intervention filed by Jindal Power Limited need to be rejected since no application was filed by Jindal Power Ltd. before the Adjudicating Authority and at this stage in this appeal, the Jindal Power Ltd. cannot be allowed to intervene or to seek any relief in its intervention application. 35. Learned Counsel for the Intervenor, Jindal Power Limited submits that the JPL s Resolution Plan is among the Plans found feasible and viable by the Process Advisor. The objective of the IBC is value maximisation. The process carried out by the RP has not been transparent, was filled with material irregularities and placed incomplete Financial Data before the CoC. Jindal Power Limited prays that this Tribunal may be pleased to allow Jindal Power Limited to intervene in the present appeal and direct all the Resolution Applicants be permitted to improve their offer in line with the email 08.05.2023 to the Appellant SEML inviting it to improve its upfront offer. In the alternative in view of the passage of time, this Tribunal may direct a fresh auction to en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant to file its objections in the Plan Approval Application, if any, pursuant to reviewing the Plan Approval Application; d) to keep the Plan Approval Application in abeyance until the Applicant has reviewed the Plan Approval Application and filed its objections (if any) in the said Application. 40. The Torrent Power Limited was also one of the Resolution Applicant who has submitted the Plan, which Plan was considered and voted and not approved. 41. Before we proceed to further consider the submissions, it is necessary to notice the averments made in I.A. 3399/2023. In the application filed by Torrent Power Limited it is stated that the email was received from RP, that the Resolution Plan submitted by the SEML has been approved, although it received the information on 20.06.2023 but did not choose to file any objection or application. The EMD, which was given by Torrent Power Limited was also refunded by the RP. 42. The reason for filing of the application is contained in para 5.40 of the application which is as follows: 5.40. In the meanwhile, the Applicant came across the Newspaper Report (which appears to have escaped the Applicant s notice at the relevant time) which stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Negotiation Process, the commercial offer made in the H1 Bid was displayed to the Resolution Applicants. The Applicant recollected that entire commercial offer of the Applicant was proposed to be paid by way of upfront payment of INR 2,000 Crores (including CIRP Costs) without consisting of any deferred payment component. The Applicant also recollected that H1 Bid proposed aggregated to a total commercial offer of INR 2,005 Crores (but the identity of the H1 Bidder was not disclosed to the Applicant). However, from the information displayed to the Resolution Applicants pursuant to the completion of the Negotiation Process, it was evident that the H1 Bid proposed an upfront payment of approximately INR 1,500 Crores (including CIRP Costs) and a deferred payment component of approximately INR 400 Crores. In other words, it is submitted that while the commercial offer of Vantage was INR 5 crores higher than the commercial offer of the Applicant, the Applicant made a commercial offer consisting entirely of upfront cash payment which was a factor given highest weightage by the CoC as evident from the e-mails dated 28 January 2023 and 9 March 2023. In fact, it is submitted that considerin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offer during the Negotiation Process. In view of these facts, it appears to the Applicant that the Second Respondent had an additional opportunity to modify and increase its commercial offer during the course of the CIRP such that the commercial offer of the Second Respondent becomes higher than that offered by the Applicant; even though to the best of our knowledge, neither the Applicant nor any other Resolution Applicant was given the opportunity to : (a) increase/modify the Key Commercial Terms, including the upfront cash payment proposed to be paid to the creditors of the Corporate Debtor post the Negotiation Process; or (b) increase/modify the Final Resolution Plan pursuant to their submission on 28 April 2023. This is (a) in clear contravention of the resolution plan process and the terms expressly stated in the Process note and RFRP; and (b) amounts to abject preferential treatment given to the Second Respondent considering that the none of the other Resolution Applicants were given similar opportunity to : (a) increase/modify their Key Commercial Terms subsequent to the completion of the Negotiation Process; and (b) increase/modify the Final Resolution Plans submitted on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess at the far end. The Counsel for the Applicant in IA 3336/2023 submits that its offer for higher amount, than offered by Successful Resolution Applicant (SRA), given to RP, was not considered after approval of plan of Successful Resolution Applicant, after approval of plan by CoC. The Counsel for Applicant in IA 3399/2023 further submits that the revised financial proposal of SRA ought not to have been considered, as no revision could have been done or permitted. Alternatively, it was argued that they were not afforded equal opportunity to do so. The Counsel for Applicant in 3399/2023 submits that it is ready to furnish non-disclosure undertaking and to abide by the confidentiality of information, which may come to him, if the re-bid is ordered. 3. Heard the Counsel. The RP is directed to place on record a brief note on the process; relevant pages in their application for approval of plan pending before this Bench for orders where the relevant CoC minutes taking care of these aspects is placed; and e-mail sent to all Resolution Applicants to submit updated Plan consequent to discussions in the last meeting taken place before all Resolution Plans were put to vote of CoC; and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is not in conformity with the minutes of meeting dated 06.05.2023, which recorded the deliberations taken place at that meeting as The representative of SBI mentioned that all the Bank Guarantees are secured by 100% cash margin. Bank Guarantees do not form part of the claim since the guarantees are not considered exposure on the company because of 100% cash margin available to secure the BGs. While submitting the claim to RP, SBI has duly mentioned this fact in the claim form. In addition, there are a number of judgements and as per which, as long as the liability of BG issuing bank remains, no one can lay it s claim against the margin money . We feel that the amount offered towards replacement of the BG cannot form part of the upfront amount offered to the financial creditor and considered as such in the analysis. Nonetheless, we find that the total Bank Guarantees, required to be replaced to keep the Corporate Debtor is Rs. 103.83 crores, and the margin money against remaining Bank Guarantees is free cash available to the Corporate Debtor, except margin money against Bank Guarantees to the lenders of the associate company of the Corporate Debtor which was to go to such lenders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Approval IA or in the application filed by TPL and Vantage. No clarifications were sought by the Hon ble NCLT from the RP or the CoC in this context. Thus, the observations made by the Hon ble NCLT in this context have not been made in accordance with law. 54. The CoC has also filed a detailed Reply to the appeal. CoC in its Reply filed in SEML s appeal, has also pleaded that the findings in the impugned order are without any foundation in the written or oral pleadings made by the parties. In paragraph 10.4, 10.4.1, 10.4.2 and 10.4.3 following has been pleaded: 10.4 The findings in the Impugned Order are patently illegal as they have been passed without any foundation in the written or oral pleadings made by the parties. 10.4.1 It is submitted that the findings of the Ld. Adjudicating Authority are illegal and without any basis in the pleadings. In fact, the findings are completely dehors the grounds set out and the reliefs sought for in the Applications filed by the unsuccessful Resolution Applicants and the oral submissions made by the parties on August 7, 2023. It seems as though while passing the Impugned Order, the Ld. Adjudicating Authority assumed the role of CoC itself b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2023 is on the findings which are not based on any pleadings raised by Torrent Power Limited and Vantage Point Asset Management Pte. Ltd. in their application. Torrent Power Limited and Vantage Point Asset Management Pte. Ltd. were unsuccessful Resolution Applicants and they filed the applications subsequent to the order was reserved in the Plan approval application. Before the Adjudicating Authority for the first time the applications I.A. 3336/2023 I.A. 3399/2023 listed on 07.08.2023 and on the same day, orders were reserved on the said applications, neither any notice was issued in the application nor any opportunity was given to file a Reply to the applications by the RP, CoC or SRA. The basis of the order of the Adjudicating Authority is that incomplete data was provided to the CoC by the RP and its Process Advisor, hence the decision of the CoC is perverse. 56. The grounds which were taken by the Adjudicating Authority were neither pleaded by the application filed by the Torrent Power Limited and Vantage Point Asset Management Pte. Ltd. nor they were addressed at the time of hearing of the application on 07.08.2023, as pleaded by the RP and CoC. It was incumbent on the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued in the application, no reply was called on the applications and while allowing the said application the entire plan which was approved has been remitted for reconsideration. 62. We are thus satisfied that the impugned order deserves to be set aside on the ground of violation of Principles of Natural Justice. 63. One more submission which has been pressed on behalf of SEML is that the Adjudicating Authority traversed beyond its limited jurisdiction under the IBC to interfere with commercial wisdom of the CoC in approving the Resolution Plan. 64. Learned Counsel for the Appellant has also taken exception to the grounds on basis of which the Adjudicating Authority embarked on the enquiry to analyse various financial proposals and data which were up for consideration by the CoC while considering the Resolution Plan of Resolution Applicants. Adjudicating Authority had undertaken its own quantitative assessment/evaluation of the treatment of the Bank Guarantee, Margin Money across different plans which was only impermissible. 65. The submissions advanced by learned Counsel for the Appellant is that the jurisdiction of the Adjudicating Authority to interfere with the approval of Resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approach has been adopted for speeding up the recovery of the debt due from the defaulting companies. In the new approach, there is a calm period followed by a swift resolution process to be completed within 270 days (outer limit) failing which, initiation of liquidation process has been made inevitable and mandatory. In the earlier regime, the corporate debtor could indefinitely continue to enjoy the protection given under Section 22 of the Sick Industrial Companies Act, 1985 or under other such enactments which has now been forsaken. Besides, the commercial wisdom of CoC has been given paramount status without any judicial intervention, for ensuring completion of the stated processes within the timelines prescribed by the I B Code. There is an intrinsic assumption that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan. They act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. The opinion on the subject-matter expressed by them after due deliberations in CoC meetings through voting, as per voting shares, is a collective business decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee of Reliance (2021) 10 SCC 623, wherein the Hon ble Supreme Court in paragraph 44 laid down following: 44. These decisions have laid down that the jurisdiction of the adjudicating authority and the appellate authority cannot extend into entering upon merits of a business decision made by a requisite majority of the CoC in its commercial wisdom. Nor is there a residual equity based jurisdiction in the adjudicating authority or the appellate authority to interfere in this decision, so long as it is otherwise in conformity with the provisions of IBC and the Regulations under the enactment. 68. Next judgment relied on is Jaypee Kensington Boulevard Apartments Welfare Association and Ors. Vs. NBCC (India) Limited Ors. (2022) 1 SCC 401, wherein in paragraph 107.1, following has been laid down : 107.1. Such limitations on judicial review have been duly underscored by this Court in the decisions abovereferred, where it has been laid down in explicit terms that the powers of the adjudicating authority dealing with the resolution plan do not extend to examine the correctness or otherwise of the commercial wisdom exercised by the CoC. The limited judicial review available to adjudicating a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited by this Court. (emphasis supplied) 70. In Kalparaj Dharamshi v. Kotak Investment Advisors Ltd. (2021) SCC OnLine SC 204, again the same proposition has been reiterated by the Hon ble Supreme Court, which is as follows: 172. No doubt, it is sought to be urged, that since there has been a material irregularity in exercise of the powers by RP, Nclat was justified in view of the provisions of clause (ii) of sub-section (3) of Section 61 of the I B Code to interfere with the exercise of power by RP. However, it could be seen, that all actions of RP have the seal of approval of CoC. No doubt, it was possible for RP to have issued another Form G , in the event he found, that the proposals received by it prior to the date specified in last Form G could not be accepted. However, it has been the consistent stand of RP as well as CoC, that all actions of RP, including acceptance of resolution plans of Kalpraj after the due date, albeit before the expiry of timeline specified by the I B Code for completion of the process, have been consciously approved by CoC. It is to be noted, that the decision of CoC is taken by a thumping majority of 84.36%. The only creditor voted in favour of KIAL i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any law being in force or there is material irregularity in the powers exercised by the RP. In paragraph 39, following has been held : 39. Further, there is no such mechanism under the Code that gives the right to the Unsuccessful Resolution Applicant to challenge the score granted as per the evaluation matrix prepared by the CoC and the Resolution Professional as per the provisions of CIRP Regulations. Though, Section 61 of the Code provides Appeals against the orders of the Adjudicating Authority and Sub-section (3) thereof provides an Appeal against an order approving a Resolution Plan under Section 31 which may be filed on the following grounds namely : (i) The approval resolution plan is in contravention of the provisions of any law for the time being enforce. (ii) There has been material irregularity in exercise of the powers by the Resolution Professional during the Corporate Insolvency Resolution Period. (iii) .. (iv) It is unequivocal, in preferring the Appeal by the aggrieved person under the above provision more particularly sub-section (3)(i) of Section 31 thereof which specifically provides that the approved Resolution Plan can be questioned / challenged on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I B Code, the Resolution Plan has taken care of the claim of the appellants, we are not inclined to interfere with the order passed by the Adjudicating Authority. In a particular case, what should be the percentage of claim amount payable to one or other Financial Creditor or Operational Creditor or Secured Creditor or Unsecured Creditor can be decided by the Committee of Creditors based on facts and circumstances of each case. In absence of any discrimination or perverse decision, it is not open to the Adjudicating Authority or this Appellate Tribunal to modify the plan. 75. The observation that in absence of any discrimination or perverse decision, it is not open to the Adjudicating Authority or this Appellate Tribunal to modify the Plan was in reference of the claim of Operational Creditor, which was under consideration in the said Appeal. The expression discrimination has to be understood in the context of the Operational Creditor, who as per the provisions of Section 30, sub-section (2) is entitled to an amount. In event the amount offered to the Operational Creditor is not in accordance with Section 30, sub-section (2), there may be a ground for interference. The concept of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion taken by CoC with reference to the commercial interests and the interest of revival of the corporate debtor and maximisation of value of its assets. This wisdom is not a matter of rhetoric but is denoting a well-considered decision by the protagonist of CIRP i.e. CoC. As observed by this Court in K. Sashidhar [K. Sashidhar v. Indian Overseas Bank, (2019) 12 SCC 150 : (2019) 4 SCC (Civ) 222] , the financial creditors forming CoC act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. The opinion on the subject-matter expressed by them after due deliberations in CoC meetings through voting, as per voting shares, is a collective business decision. This Court also observed in K. Sashidhar [K. Sashidhar v. Indian Overseas Bank, (2019) 12 SCC 150 : (2019) 4 SCC (Civ) 222] that [t]here is an intrinsic assumption that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan. 162. In light of the aforesaid position of law and its operation in relation to the decision-making process of CoC, it needs hardly any emphasis that each and every aspect relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Appellate Tribunal in interfering with the order of the Adjudicating Authority. The Hon ble Supreme Court affirmed the decision of the Appellate Tribunal. In paragraph 168, as noted above, the Hon ble Supreme Court noted that in event the Plan, which was modified was not put before the CoC, there will be breach of requirement of placing the Plan in its final form before the CoC. The Hon ble Supreme Court further observed that if the process adopted in the present matter is approved, the very scheme of the CIRP would be left open-ended and would be capable of inviting arbitrariness at any level. The above judgment, does support the submission of Shri Kapil Sibal that there can be a ground on which Plan approval can be interfered with by the Adjudicating Authority. The judgment in M.K. Rajagopalan was instance of one such cases, where Plan after being modified by the Resolution Applicant, was not placed for final approval before the CoC. Shri Sibal has also placed reliance on behalf of the Torrent Power Limited on one of the judgments of Hon ble Supreme Court in Oswal Fats and Oils Limited vs. Additional Commissioner (Administration), Bareilly Division Barielly and Ors. (2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: 3. The grievance of Mr. Abhishek Anand, Advocate is that, the modifications of the Applicant's plan were known to everyone hence no opportunity ought to have been given to others to modify their plan. We do not find any substance in the above submissions. The Adjudicating Authority has rightly observed that for not to disturb level playing field, the other resolution applicants were also permitted to give modifications of the resolution plan. 80. In Ajay Gupta s case, the Adjudicating Authority permitted the Resolution Applicant, whose Plan was being considered to place any modification in the Plan before the CoC for its consideration. In the above context, observations were made in paragraph 3, rejecting the submission that no opportunity should have been given to others to modify their Plan. The judgment of this Tribunal in Ajay Gupta also came to be affirmed by the Hon ble Supreme Court in (2022) 6 SCC 86 Ajay Gupta vs. Mr. Pramod Kumar Sharma, where in paragraph 13 and 14, following was laid down: 13. We do not find the submissions aforesaid making out a case for interference. This is for the simple reason that on a perusal of the order dated 13-12-2021 [Bank of India v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution Applicants, who were asked the clarification, had provided the clarification. The CoC during submission has rightly submitted that the said clarification was asked under the directions of the CoC, which is fully permissible as per the provisions of RFRP and Process Note, which empowers the CoC to ask for clarification from any Resolution Applicant. It is submitted that clarification was asked from all Resolution Applicants and there cannot be any modification of any financials by clarification and no modification was made to the earlier Resolution Plan. It is relevant to notice that the said argument was considered and did not find favour with the Adjudicating Authority. This clarification was not asked only from the Appellant Sarda, rather, the said clarification was asked from all other Resolution Applicants. In paragraph 8.2, the Adjudicating Authority has noticed that email dated 08.05.2023 was sent to each Resolution Applicant to clarify and such clarification was sought in accordance with the decision taken in the CoC Meeting. We do not find any substance in the submission on behalf of Torrent Power Limited that any discrimination was made with other Resolution Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rverse. A minor infraction of procedural or any other similar reasons are not sufficient to term a decision as perverse. We have already noticed the judgment of the Hon ble Supreme Court in M.K. Rajagopalan (supra), where Hon ble Supreme Court has observed that commercial wisdom of CoC would come into existence and operation only when all the relevant information is available before it and is duly deliberated upon by all its Members. Thus, in event, all relevant materials are available before the CoC, which is deliberated, no perversity can be imputed in the decision. As noted above, the ground to interfere with the approval of Resolution Plan by the CoC by Adjudicating Authority are circumscribed by virtue of Section 31, sub-section (1). Thus, a fault can be found in the decision only when there is serious error in the decision-making process and by which error, the CoC is unable to take its commercial decision. 86. One more submission, which was pressed by learned Counsel for the Torrent Power Limited was that under the email dated 28.01.2023 all Resolution Applicants were required to give their offer of payment of upfront and it was obligatory for all Resolution Applicants to gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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