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TMI Blog2025 (2) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... ivision Bench, Court No.1, Kolkata, rejecting IA (IB) No.1325/KB/2023 filed by the Appellant and by another order of the same date allowing IA (IB) No.1407/KB/2023 approving the Resolution Plan. 2. Brief facts of the case necessary to be noticed for deciding both the Appeal(s) are: (i) By an order dated 22.07.2022, Corporate Insolvency Resolution Process ("CIRP") proceedings against the CD commenced. In pursuance of the decision of the Committee of Creditors ("CoC") Form-G was published on 23.10.2022 and the last date for receiving of Expression of Interest ("EoI") was 08.11.2022. In pursuance of Form-G, several persons filed their EoIs. However, in pursuance of RFRP issued by Resolution Professional ("RP") three Resolution Plans were received. (ii) In the 10th Meeting of CoC held on 13.01.2023 three Plans were noticed to be received. The RP undertook to revert to the CoC after verifying whether the Plans are compliant. In the next Meeting of CoC on 30.01.2023, it was noticed in the Minutes that some new interested parties have approached the State Bank of India ("SBI") after last date of EoI. The CoC deliberated whether to issue fresh Form-G or to invite interested parties. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed challenging the order passed in IA 1325/KB/2023 and Company Appeal (AT) (Ins.) No.229 of 2025 has been filed challenging the order dated 20.12.2024 passed in IA 1407/KB/2023 approving the Resolution Plan. 3. We have heard Shri Gaurav Mitra, learned Counsel appearing for the Appellant; Shri Krishnendu Dutta, learned Senior Counsel appearing for Respondents; Shri Abhijeet Sinha, learned Senior Counsel appearing for Successful Resolution Applicant ("SRA") and learned Counsel for RP. 4. Shri Gaurav Mitra, learned Counsel for the Appellant challenging the order submits that the Form-G having been published on 23.10.2022 and after the Form-G, RFRP was also issued and Plans were received, which were discussed in the Meeting held on 13.01.2023. A decision was taken on 30.01.2023 to extend the timeline, which timeline was extended, permitting Pinax - SRA to participate, which is nothing but a backdoor entry. The Form-G was required to be published afresh in the event the CoC considered permitting others to participate. The procedure adopted by CoC and RP is contrary to Regulation 36A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Plan was considered and was not accepted. The reasons are recorded in the Minutes of the CoC. The CoC was fully entitled to consider the Plan and it being not found viable, no error has been committed by the CoC. The Appellant's intent was only to delay the CIRP and he had neither any interest nor capacity to submit a Resolution Plan. The time chosen by the Appellant itself indicate that the Appellant was not serious. 6. Shri Abhijeet Sinha, learned Senior Counsel appearing for the SRA submits that the Appellant having participated in all CoC Meeting and was well aware of deliberations including financials of the Resolution Applicant, he is not entitled to make a request for submission of the Resolution Plan, which opportunity he never availed. The Resolution Plan, which was submitted by the Appellant was also considered and found that it is not backed by any financial proposal, since the letter which was submitted had already expired. It is submitted that CoC in its commercial wisdom has considered the Plan of the Appellant and has approved the Resolution Plan of the SRA, in which order, no interference is called for. 7. We have considered the submissions of learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Resolution Plan as provided below: "The Resolution Professional may, with directions from and/or approval of the Committee of Creditors, may in its absolute discretion, but without being under any obligation to do so, (i) update, amend or supplement the information, assessment or assumptions contained in this document; (ii) amend, modify, or terminate the procedures set out herein, including extending any timelines or deferring from time to time, any of their powers against any Resolution Applicant." 10. The present is a case where after issuance of Form-G on 23.10.2022, it was noticed by the CoC that after submission of EoI, some person who had not submitted EoI, whether fresh Form-G be issued or timeline be extended, which was deliberated in the 11th CoC Meeting held on 30.01.2023. 11. In the 12th CoC Meeting held on 09.02.2023, a discussion took place regarding next steps, which discussion took place in the presence of the Appellant, who participated in the CoC Meeting. In the 12th CoC Meeting, the CoC decided to extend the timeline. Under Agenda Item No.3, following was deliberated: "3. Discussion on Resolution Plans received and the next steps The RP reiterated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had shared their Resolution Plan will also be given an opportunity to re-submit their Resolution Plans. The RP agreed to the same and proposed condonation of delay by the CoC members for submission of EOI and resolution plans so that he can accept fresh EOIs and Resolution Plans as decided. Both the CoC members approved the condonation of delay for submission of EOI and Resolution Plans. The RP and the CoC members discussed and agreed upon the following revised timelines for inviting EOIs and submission of Resolution plans:- Revised Last date for submission of EOI 15.02.2023 Revised Final date for submission of Resolution plans both the existing RAs and new applicants 27.02.2023 The RP agreed that a fresh communication with these new timelines shall be made to all interested parties. 12. In pursuance of the Minutes of the CoC dated 09.02.2023, the RP invited all interested parties to submit EoI. The Appellant has never submitted any EoI in pursuance of the Form-G published on 23.10.2022 or after the extension of timeline as decided by the CoC on 09.02.2023. The Appellant having not submitted EoI either when first Form-G was issued or when timeline was extended by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kind cooperation and support. Thanking you, Yours faithfully, Sd/- Sanjeev Kumar Agarwal (Suspended Director of 'Indian Pulp & Paper Pvt. Ltd.')" 15. In the 20th Meeting of the CoC held on 14.07.2023, the request received from the Appellant on 13.07.2023 came to be considered. It is noticed in the Minutes that after Pinax Group left, the Appellant made a request before the CoC to submit a Resolution Plan, which request has been noticed and dealt with in the Minutes of CoC dated 14.07.2023, which is as follows: "After Pinax Group left, Mr. Sanjeev Agarwal placed his request before the CoC to submit a resolution plan / settlement plan under Section 12A of the code and seeking condonation of delay on grounds that earlier he did not have requisite funds for this purpose which he has now managed to gather after his request and persuasion to friends and relatives. The CoC deliberated on the issue and discussed their concerns including what options can be explored if the promoter wants to pitch in at this juncture of CIRP, what might be the possible impact on timelines, what can be the implications of the manner of treatment of OC and how they will be paid, impact on P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the intention to distract the resolution in progress. This raises enough doubt on his integrity and intentions of submitting a plan. SBI representative mentioned that they were already convinced that his inability was there and that he is not a serious contender for submission of a resolution plan. Now with the submission of this, it becomes even more evident that he is relating a letter which cannot be linked to him in any manner whatsoever. The CoC members concurred with Mr. Gole's opinion that the letter holds no sanctity. Hence, the CoC members decided not to proceed any further with the offer as the supporting documents provided stand infructuous. Director Mr Sanjeev Agarwal was asked by the RP team to join in for the meeting." 17. The above discussion in the Meeting of the CoC clearly indicate that the proposal submitted by Appellant was discussed and considered on merits. It was noticed that a letter from Phoenix ARC is provided, which indicate that they are offering non-binding bid of Rs.23 crores for the acquisition of debt which has already expired on 15.03.2023. The CoC was also of the view that the action of Appellant was with the intention to distract the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed" in the said Resolution Proposal. 7.7 A casual, non-serious and non-diligent Resolution Plan dated 23.07.2023, was submitted by Shri. Sanjeev Kumar Agarwal, much later and belatedly after the CoC had resolved to put the other 3 Resolution Plans to e-voting, with the motive and intention to prolong and derail the resolution process." 20. The Adjudicating Authority having noticed entire submissions and has found that there is no infirmity in the decision of the CoC in not accepting the Resolution Plan of the Appellant and deciding to vote on the Resolution Plans, we do not find any error in the order of the Adjudicating Authority rejecting IA No.1325/KB/2023. The Resolution Plan of Pinax, which was approved with 97% vote share of the CoC has been rightly approved by the Adjudicating Authority by order dated 20.12.2024, which order need no interference, since no ground has been made out within meaning of Section 61(3) of the IBC. 21. For the reasons given in our judgment dated 18.02.2025 in Company Appeal (AT) (Ins.) No.194/2025 - Brand Steel & Power Pvt. Ltd. vs. Avishek Gupta & Ors. and for the foregoing reasons and discussions, we do not find any merit in both the Appeals. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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