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TMI Blog2025 (2) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... s, all Resolution Applicants were well aware that time for submission of the EoI and submission of the Resolution Plan can be extended by the Resolution Professional with approval of the CoC. Whether extension of timeline which is contemplated in the EoI itself require a publication of fresh Form G? - HELD THAT:- Present is not a case that there was any modification in the Invitation for EoI rather only extension of timeline on same criteria and conditions as was initially provided have been made. Timeline as noticed above was already permitted to be extended by Clause 6 of the same Invitation for EoI dated 23.10.2022 by which process for receiving of EoI commenced. Clause 6 only provided for extension of last date for submission of EoI and when we read Clause 6, it does not indicate that for extension of last date of EoI revised fresh Form G was required to be issued. It is noticed that in Regulation 36 B of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 which is 'request for resolution plans' both expressions i.e. modification and extension of timeline have been used. As per sub-regulation (5), any modificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant : Mr. Rishav Banerjee, Mr. Arijit Mazumdar, Ms. Madhuja Burman, Mr. Shambo Nandy and Ms. Anoushka Dey, Advocates For the Respondent : Mr. Krishnendu Dutta, Sr. Advocate with Mr. Sailedndra Tiwari, Mr. Inranil Ghosh, Mr. Palzer Moktan, Mr. Rahul Gupta, Mr. Harsh Tandon and Ms. Mehar Bedi, Advocates for R-2 & R-3. Mr. Abhijeet Sinha, Sr. Advocate with Mr. Saikat Sarkar and Mr. Saurav Jain, Advocates for R-4 & R-5. Ms. Swati Dalmia, Ms. Neha Sinha and Ms. Safura Ahmed, Advocates for R-1/RP. JUDGMENT Ashok Bhushan , J. These two Appeals challenges two orders of the same date dated 20.12.2024 passed by the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench (Court-I), Kolkata passed in IA No.1490/KB/2023 approving the Resolution Plan submitted by the Successful Resolution Applicant (SRA) and order passed in IA No.1407/KB/2023 by which application filed by the Appellant objecting to the Resolution Plan has been rejected. The Appellant an Unsuccessful Resolution Applicant aggrieved by the aforesaid two orders has filed these two Appeals. 2. Brief facts of the case necessary to be noticed for deciding the Appeals are:- 2.1. The Corporate Insolvency Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stries Pvt. Ltd. submitted EoI. On 23.02.2023, a list of PRA was published in which apart from the Appellant name of Pinax Paper Mills Ltd. was also mentioned as one of the PRAs. List dated 23.02.2023 allowed 5 days' time to file objection against the list of PRAs. No objection having been filed, the Resolution Professional issued final list of PRA on 28.02.2023 in which following four Resolution Applicants were included:- (i) Brand Steel & Power Limited in consortium with Bhagwati Vintrade Private Limited; (ii) Green Valliey Industries Limited; (iii) RKG Fund- IA scheme of RKG Trust; and (iv) Pinax Paper Mills Private Limited in consortium with Pinax Steel Industries Private Limited 2.2. No Resolution Applicants raised any objection against the extension of timeline or invitation to submit revised Resolution Plan. Last date for submission of the Resolution Plan being 27.02.2023 was extended till 02.03.2023. Resolution Professional received Resolution Plans from Brand Steel & Power Limited, Green Valliey Industries Limited and Pinax Paper Mills Private Limited. RKG Fund opted to continue with their earlier Resolution Plans. All Resolution Plans were opened in the 13th CoC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same date passed in IA No. 1407 of 2023 application filed by the Appellant has been rejected. Aggrieved by the aforesaid two orders, these two Appeals have been filed as noticed above. 3. We have heard Shri Rishav Banerjee, Learned Counsel for the Appellant. Shri Krishnendu Dutta, Learned Senior Counsel and Shri Abhijeet Sinha, Learned Senior Counsel for the Respondents. 4. Learned Counsel appearing for the Appellant submits that the Resolution Professional has conducted the CIRP process against the provisions of the CIRP Regulations 2016. It is submitted that the name of the SRA- Pinax Paper Mills Private Limited was not included in the list of PRA which was published by the Resolution Professional. On 14.11.2022, Resolution Plans were submitted by the Appellant and other two applicants which came to be opened and discussed on 13.01.2023 by the CoC in which meeting one of the members of the CoC has informed that one applicant has expressed interest and want to become Resolution Applicant. Thereafter, the CoC extended the timeline for submission of the EoI and Resolution Plan in its meeting dated 07.02.2023. No fresh Form G was issued by the Resolution Professional, withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the receipt of EoI and Resolution Plan was extended after decision was taken by the CoC on 07.07.2023 and communication was sent to all the Resolution Applicants on 13.02.2023 informing extended timeline as 15.02.2023 for submitting EoI and for submitting Resolution Plan on 27.02.2023. A list of PRA was published on 23.02.2023 which also included the name of Pinax Paper Mills Private Limited who has submitted EoI. A final list of PRA was also published on 28.02.2023 which included the name of SRA- Pinax Paper Mills Private Limited. No objection was raised by the Appellant or any other Resolution Applicants regarding extension of timeline as communicated on 13.02.2023. It is submitted that the Resolution Plan which was submitted by the Appellant was not a compliant plan. EoI which was initially submitted by the Appellant was from Appellant with Bhagwati Vintrade Private Limited whereas when the plan was submitted, the name of Nippon Ispat Pvt. Ltd. was added which Resolution Plan was non-compliant and taking advantage of extension of time giving opportunity to Resolution Applicants to file fresh plan. Appellant filed fresh Resolution Plan by deleting the name of Nippon Ispat Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powered under the Invitation for EoI. The Resolution Plan has already been implemented within one month of the approval of the plan. SRA has to make payment which has already been made. There are no grounds made out to interfere with the order approving the Resolution Plan. Appellant after having taken chance to get his plan approved has filed the application questioning the process. 7. We have considered the submissions made by Counsel for the parties and perused the record. 8. Before we proceed to enter into the submissions of Counsel for the parties, we need to notice Invitation for Expression of Interest issued by the Resolution Professional on 23.10.2022 with the approval of the CoC. It is relevant to notice certain clauses of Invitation for Expression of Interest. Clause 6 dealt with 'last date of submission of EoI' which is as follows:- "6. LAST DATE OF SUBMISSION OF EOI The last date for submission of EOI is 08th of November 2022 ("Last Date"). Provided that the Resolution Professional may extend the Last Date, with consent/approval/ratification of the COC (at its sole discretion). Further, the Resolution Professional may (with COC consent/ approval/ratification) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tium with Bhagwati Vintrade Private Limited and the Final List of Prospective Resolution Applicants also mentioned the same, however, the Resolution Plan was submitted by the App in consortium with Bhagwati Vintrade Private Limited and Nippon Ispat Private Limited, which was not permissible. I crave leave to refer to the Resolution Plan submitted by the Applicant in consortium with Bhagwati Vintrade Private Limited and Nippon Ispat Private Limited at the time of hearing, if necessary. The Resolution Professional brought the same to the notice of the CoC members in the 11th CoC meeting held on 30th January, 2023 and it is recorded in the minutes of the CoC that the same needs to be rectified by the Resolution Applicant in future. In the said CoC meeting, one of the CoC members informed that one interested party has approached showing willingness to become a Resolution Applicant. Discussions took place as to whether in the interest to maximize value, a fair chance should be given to all interested parties by issuance of a new Form G or the interested party can be allowed at this stage without issuance of Form G. One of the members of the CoC was of the view that interested parties ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time of hearing, if necessary."
12. As per the decision of the 12th CoC meeting held on 09.02.2023, the Resolution Professional issued e-mail dated 13.02.2023 to all Resolution Applicants informing about extension of date of EoI and submission of Resolution Plan. E-mail dated 13.02.2023 is as follows:-
"IPPPL X X X X Extracts X X X X X X X X Extracts X X X X ..... for Indian Pulp & Paper Private Limited ('Company' or 'Corporate Debtor'): In the 12th CoC meeting, it was decided by the CoC members to extend the last date of submission of Eol and Resolution Plan. Based on the EOI received till the said due date and the preliminary review of the documents submitted by the PRA's the following is the provisional list of eligible Prospective Resolution Applicants (PRA) for submission of Resolution Plan for the Corporate Debtor: 1. Brand Steel & Power Limited in consortium with Bhagwati Vintrade Private Limited 2. Green Valliey Industries Limited 3. RKG Fund-1 A scheme of RKG Trust 4. Pinax Paper Mills Pvt. Ltd. in consortium with Pinax Steel Industries Pvt. Ltd. In case the RP/ CoC subsequently becomes aware or is made aware of any disqualification/ineligibility of any PRA (including but not limited to under Section 29A of the IBC), then the RP/CoC shall have the right to disqualify such PRA from the resolution process at any stage. **Inclusion of the PRA in the final list is subject to satisfaction of the RP on compliance with Section 29A of the IBC. Thanking You, For and on behalf of Indian Pulp & Paper P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Applicant in consortium with Bhagwati Vintrade Private Limited and Nippon Ispat Private Limited at the time of hearing, if necessary." 16. The above indicate that the Appellant had submitted fresh Resolution Plan making it compliant with its EoI by deleting the name of Nippon Ispat Pvt. Ltd. which was part of the earlier Resolution Plan. Subsequent Resolution Plan submitted by the Appellant was found to be compliant although an objection was raised by one of the Resolution Applicants regarding eligibility which was examined and ultimately CoC took decision to vote the plan of the Appellant also in its 20th CoC meeting held on 11.07.2023 which is pleaded in paragraph 3(ff):- "ff. In the 20th COC meeting held on 11th July, 2023 (continued on 14th July, 2023), upon a detailed deliberation on Resolution Plans and after considering the scoring on the Resolution Plan as determined on the basis of Evaluation Matrix, the COC decided that the Resolution Plans submitted by Pinax Paper Mills Private Limited in Consortium with Pinax Steel Industries Private Limited, Brand Steel & Power Limited in Consortium with Bhagwati Vintrade Private Limited and RKG Fund be put to vote, whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timeline have been used. We may refer to sub- regulations (5) and (6) of the Regulation 36B which are as follows:- "36B. Request for resolution plans.- (5) Any modification in the request for resolution plan or the evaluation matrix issued under sub-regulation (1), shall be deemed to be a fresh issue and shall be subject to timeline under sub-regulation (3). [Provided that such modifications shall not be made more than once.] (6) The resolution professional may, with the approval of the committee, extend the timeline for submission of resolution plans. [(6A) If the resolution professional, does not receive a resolution plan in response to the request under this regulation, he may, with the approval of the committee, issue request for resolution plan for sale of one or more of assets of the corporate debtor." 21. As per sub-regulation (5), any modification in the request for resolution plan has to be treated as fresh issue whereas extension of timeline with the approval of the committee has been separately dealt. Thus, modification of request for resolution plan and extension of timeline has been separately dealt in Regulation 36B. Applying the aforesaid analogy in Regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal list published on 28.02.2023 has already been extracted above as is on the record of the Appeal. 23. Counsel for the Appellant placed much reliance on judgment of this Tribunal in "Ashdan Properties Pvt. Ltd." (supra). The above was the case where order passed by the Adjudicating Authority on 12.02.2024 and 21.02.2024 was challenged by which order the Adjudicating Authority on an application filed by two interveners directed the Resolution Professional to place their Resolution Plans before CoC for consideration which order was challenged by the Appellant whose case was that Appellant- Ashdan Properties Pvt. Ltd. has been selected as H-1 bidder after 33 rounds of bidding and name of two applicants were not included in the list of PRAs. The Appeal filed by the Appellant was allowed and this Tribunal after referring to Regulation 39 (1-B) laid down following in paragraphs 10 and 11:- "10. The Regulation thus clearly provides that the committee shall not consider a resolution plan received from an application whose name does not appear in the list of PRAs. Admittedly, neither Patanjali nor other two applications have submitted any EOI nor their name was reflected in the List of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which required the resolution plans to be submitted on or before 28-9-2018. The third Form 'G' came to be issued on 28-9-2018, which required the resolution plans to be submitted on or before 25-10-2018. The fourth Form 'G' came to be issued on 9-11-2018, which required the resolution plans to be submitted on or before 13-12-2018. The fifth and the last Form 'G' came to be issued on 11-12-2018, which required the resolution plans to be submitted on or before 8-1-2019. 7. KIAL, the appellant before NCLAT (Respondent 1 herein) and one Karvy Data Management Systems Ltd. submitted their resolution plans on the last date as stipulated in the last and fifth Form 'G' i.e. on 8-1-2019. One another applicant i.e. WeP Solutions Ltd. submitted its resolution plan jointly with one Sattva Real Estate Private Ltd. (hereinafter referred to as "WeP") on 13-1- 2019. The appellant in Civil Appeals Nos. 2943-44 of 2020 i.e. Kalpraj submitted its EOI and resolution plan to RP on 27-1-2019." 26. Kotak Investment Advisors Limited (KIAL) immediately raised the objection permitting Kalpraj to submit Resolution Plan on 29.01.2019. However, the plan of Kalpraj was placed before the CoC and was approved b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible 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 is Kotak Bank, which is a holding company of KIAL, having voting rights of 0.97%. We are of the considered view, that in view of the paramount importance given to the decision of CoC, which is to be taken on the basis of "commercial wisdom", NCLAT was not correct in law in interfering with the commercial decision taken by CoC by a thumping majority of 84.36%." 28. Counsel for the Appellant contended that the above judgment of the Hon'ble Supreme Court is not attracted in the facts of the present case since the judgment of the Hon'ble Supreme Court was delivered on 10.03.2021 and the Regulation 36A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I was extended by the CoC in 12th CoC meeting held on 09.02.2023 on the basis of which communication dated 13.02.2023 was issued to Resolution Professional. Thus, extension of timeline is in accordance with EoI itself. Original EoI was published on 23.10.2022. (ii) After extension of timeline by the CoC on 09.02.2023 and communication dated 13.02.2023, all Resolution Applicants including the Appellant were given liberty to file fresh Resolution Plans and Appellant filed fresh Resolution Plan by deleting Nippon Ispat Pvt. Ltd. as one of the members of the consortium who had submitted the Resolution Plan in pursuance of the earlier RFRP. We have noticed above that EoI was issued by Brand Steel & Power Limited in consortium with Bhagwati Vintrade Private Limited and Nippon Ispat Pvt. Ltd. was added in Resolution Plan was non-compliant which was also pointed out in the meeting of the CoC as well as by the Resolution Professional. After extending the timeline, the Appellant deleted Nippon Ispat Pvt. Ltd. as a Resolution Applicant and made the Resolution Plan compliant. Thus, the extension of timeline was availed by the Appellant to its benefit by filing a revised resolution plan makin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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