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TMI Blog2024 (7) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... osed any amount in the Resolution Plan. The submission of the Appellant that redetermination of Pegasus ought to have been complied by RP before proceeding further, needs no further consideration, since Pegasus itself on 27.11.2023 after the order of this Tribunal on 21.11.2023, has requested the RP to redetermine its claim @ 14.85%. The RP was fully entitled to redetermine any claim on account of any subsequent facts or materials, hence, the RP did not commit any error in redetermining the claim of Pegasus, which was made on its own request and ultimately, the Adjudicating Authority vide its order dated 26.04.2024 passed in IA No.5606 of 2023 has approved the said reverification. There are no error in the orders passed by Adjudicating Authority - Adjudicating Authority having found the Resolution Plan in accordance with the statutory scheme of the Code, has not committed any error in approving the Resolution Plan - appeal dismissed. - [ Justice Ashok Bhushan ] Chairperson And [ Barun Mitra ] Member ( Technical ) For the Appellants : Ms. Neeha Nagpal , Mr. Malak Bhatt , Mr. Raghav Anand and Mr. Nikunj Mahajan , Advocates For the Respondent : Mr. Arun Kathpalia , Sr. Advocate with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crores. Other claims of unsecured Financial Creditor and Operational Creditor were also admitted. (iii) The Information Memorandum as well as Addendum was published on 01.08.2022, in pursuance of which large number of Applicants submitted Expression of Interest ( EoI ). Ultimately four Resolution Plans were submitted including that of Macrotech Developers Ltd. ( MDL ). The Resolution Plans submitted by Resolution Applicants were discussed and deliberated and the Committee of Creditors ( CoC ) in its meeting held on 26.06.2023 approved the Resolution Plan of MDL with 100% vote share. (iv) Prior to the aforesaid, the Promoter and Shareholder of the Corporate Debtor has filed Application before the Adjudicating Authority, questioning the amount of claim admitted of the secured Financial Creditors. The Promoters objected to the computation of interest @ 22% by the Financial Creditor. With regard to the claim of ARCIL, the Adjudicating Authority passed an order on 21.07.2023 accepting the interpretation by the RP of the interest @ 22%. Company Appeal (AT) (Insolvency) Nos.1114-1115 of 2023 were filed by the Shareholder of the Corporate Debtor, challenging the determination made by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced substantially and without redetermining the claim of Pegasus, the CoC proceeded to approve the Resolution Plan. IA No.111 of 2024 filed by the Appellant has been rejected by the Adjudicating Authority, without considering the submissions that reduction of the claim of Pegasus shall materially effect the terms of the Resolution Plan. It is submitted that without redetermination of the claim of Pegasus, the Adjudicating Authority and CoC ought not to have approved the Addendum and Adjudicating Authority ought not to have approved the Resolution Plan. It is further submitted that the reduction of the claim of Pegasus shall have material effect and may also caused effect on the entitlement of other creditors. It is submitted that approval of Resolution Plan is also fallacious and deserve to be set aside. 6. Shri Arun Kathpalia, learned Senior Counsel appearing for the Respondent, refuting the submissions of learned Counsel for the Appellant submits that Pegasus of its own has already made a request for Company Appeal (AT) (Insolvency) Nos.1127 1129 of 2024 7 redetermination of its claim @ 14.85% and RP for the said purpose has already filed an Application, seeking permission befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CoC within a period of two weeks thereafter. The Resolution Professional should compute the claim of the ARCIL on the basis of rate of interest as indicated above. The Addendum after approval, if any, be placed before the Adjudicating Authority to be considered along with the application for approval of the Resolution Plan. The Resolution Plan which has been submitted before the Adjudicating Authority for approval shall be considered along with the Addendum as directed above. The Resolution Professional as well as CoC to complete the process, as indicated above, within a period of 60 days from today. Extension in CIRP process is granted for further 60 days from today to complete the process as directed above. 9. In pursuance of the order of this Tribunal, the RP redetermined the claim of ARCIL as Rs.621.70 crores and Addendum was placed before the CoC by the SRA dated 09.12.2023, stating that the total amount payable to secured Financial Creditors is Rs.888,69,78,878/- and no change is proposed to the said amount. It was further stated that amount proposed to the secured Financial Creditors may be distributed in any manner Company Appeal (AT) (Insolvency) Nos.1127 1129 of 2024 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the List of Creditors as prepared by the RP and under Agenda Item No.5 approval of Addendum was considered. The CoC in the Minutes, noted the revised claim of Pegasus as Rs.321.51 Crores in place of earlier accepted claim of Rs.521.80 Crores. In the Resolution, Addendum was resolved to be voted. The CoC also decided to distribute the amount at pro rata basis between secured Financial Creditors and approved the same. The discussion at Agenda Item No.5 of the Minutes of the Meeting is as under : Agenda 5: To discuss, consider and approve the addendum submitted by Successful Resolution Applicant in terms of the Hon ble NCLAT order dated 21st November 2023. The RP informed the CoC that pursuant to the order of Order of Hon ble NCLAT dated November 21, 2023 ( Order ), the RP, vide email dated December 04, 2023, had intimated Macrotech Developers Limited ( SRA ) to provide an addendum to the resolution plan submitted by it and approved by the CoC, in terms of the said Order. Accordingly, the SRA had submitted an addendum to the resolution plan on December 09, 2023. The same was shared by the RP with the CoC members on December 10, 2023. The RP then presented the addendum to the membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RP by the Arcil and Pegasus in relation to the inter se distribution mechanism for amounts proposed for secured financial creditors under the resolution plan dated June 05, 2023 (along with clarifications and undertakings) read with the addendum dated December 09, 2023, the amounts proposed for secured financial creditors shall be pro rata distributed between the secured financial creditors in the following proportion: Arcil : 65.91% arrived at basis the outstanding amounts being INR 621.74 crores calculated after application of 14.85% p.a. interest rate, compounded with monthly rests, on the principal amounts. Pegasus : 34.09% arrived at basis the outstanding amounts being INR 321.51 crores calculated after application of 14.85% p.a. interest rate, compounded with monthly rests, on the principal amounts. Following resolution has been put to vote for the CoC approval through e-voting. RESOLVED THAT the addendum dated December 09, 2023 to the resolution plan dated June 05, 2023 (along with clarifications and undertakings) submitted by Macrotech Developers Limited, is hereby approved as evaluated by CoC, and consent is hereby accorded to authorise the resolution professional to subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected applicability of 22% p.a., at monthly rest; b. Pegasus stands on the same footing as ARCIL; c. Pegasus gives its consent to the Applicant for redetermination of its claim of dues with contractual rate of interest as agreed by the Borrower. 18. This is a case where the Respondent i.e. Pegasus has addressed an email dated 27.11.2023 to the Applicant referring to the Order of the Hon ble NCLAT dated 21.11.2023 passed in Company Appeal (AT)(Ins.) No. 1114-1115 of 2023. The extracts of the email dated 27.11.2023 are reproduced hereinbelow: This is in reference to the order of Hon'ble NCLAT dated 21.11.2023 passed in Company Appeal (AT) (Insolvency) No.1114-1115 of 2023 (M/s Tulip Star Hotels Ltd. Another Vs Mr. Anish Niranjan Nanavaty others) whereby the Hon'ble NCLAT has held that the rate of interest which can be charged by ARCIL is only 14.85%. Further, it is observed by Hon'ble NCLAT in the said order that redetermination of claim of ARCIL as directed by the said order shall also lead to determination of the correct amount of debt which was owed by the Corporate Debtor. Thus, the claim of Pegasus stands on the same footing as of Arcil. Therefore, Pegasus hereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority dated 31st May 2019, the debt owed to the Corporate Debtor was also to be determined but the Adjudicating Authority in the Impugned Order has not determined the debt. The debt which was owed to the Corporate Debtor is to be reflected in the aggregate of claims which has been admitted by Resolution Professional in accordance with the Code and the CIRP, Regulations, 2016. The Correct amount of claim of ARCIL was dependent on determination of the rate of interest. The Resolution Professional has admitted the claim on the basis of rate of interest @ 22%.( ) xxx xxx xxx 32. ( ) We are, thus, of the view that redetermination of claim of ARCIL as directed by this order shall also lead to determination of the correct amount of debt which was owed by the Corporate Debtor.( ) 33. In the facts of the present case, we are of the view that the Resolution Professional may re-verify the claim of the ARCIL as per the rate of interest of 14.85% within two weeks and submit it before the CoC as well as the Successful Resolution Applicant who shall prepare an Addendum to be placed before the CoC within a period of two weeks thereafter. The Resolution Professional should compute the claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Code. The Adjudicating Authority has also noticed the judgment of the Hon ble Supreme Court lying down the extent of judicial review of the approval of the Resolution Plan. It is useful to extract paragraphs 26, 27, 28 and 29 of the order passed by Adjudicating Authority in IA No.2830 of 2023, which are as follows : 26. On perusal of the Resolution Plan, it is observed that the Resolution Plan provides for the following: a. Payment of CIRP cost as specified under Section 30(2)(a) of the Code; b. Payment of debts of Operational Creditors as specified under Section 30(2)(b) of the Code; c. For the management of the affairs of the Corporate Debtor after approval of the Resolution Plan; and d. The implementation and supervision of the Resolution Plan by the RP and the CoC as specified under Section 30(2)(d) of the Code. 27. In K Sashidhar vs. Indian Overseas Bank and Ors. (Civil Appeal No. 10673/2018 decided on 05.02.2019) (2019) the Hon ble Apex Court held that if the CoC had approved the Resolution Plan by the requisite percent of voting share, then as per section 30(6) of the Code, it is imperative for the Resolution Professional to submit the same to the Adjudicating Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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