9911796707
TMI Blog2025 (3) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... sent by Respondent No. 1, the RP placed the resolution plan of the receipt from the appellant before the CoC in its meeting dated 16.02.2024. There is one more relevant fact which need to be noticed subsequent to the decision of the CoC on 16.02.2024 and 17.02.2024, CoC decided to conduct a challenge process on 23.04.2024, which was completed on 29.04.2024, in which the appellant was declared as H-1 bidder. The Respondent No. 1 had not been invited to participate in the challenge process nor he could have been invited, it was already decided for not to accept the plan. Application filed by Respondent No. 1 was allowed subsequent to completion of challenge process on 29.04.2024, in which the appellant has declared as H-1 bidder. There was no sufficient ground on basis of which the Adjudicating Authority could have allowed the application filed by Respondent No. 1 and issued direction to the CoC. Conclusion - The CoC did not commit an error in considering the late receipt plan of Respondent No. 1 and deciding not to consider the plan which was in accordance with the statutory regulation. The Adjudicating Authority could not have interfered with the decision of the CoC, which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RP i.e., after expiry of the last date. vii. In the meeting of the CoC held on 16.02.2024, the RP brought into the notice of the CoC the plan received after due date i.e., on 15.02.2024 by Respondent No. 1 and one EMD received after due date. The CoC in its meeting held on 16.02.2024 decided not to accept the resolution plan of Respondent No. 1, which was filed after expiry of the last date for receipt of the resolution plan. viii. I.A.1143/2024 was filed by Respondent No. 1 before the Adjudicating Authority seeking a direction to the RP to condone the 1 day delay in filing the plan and further resolution plan of the Respondent No. 1 be directed to be considered by the CoC. ix. The I.A. filed by Respondent No. 1 was opposed by the RP. Adjudicating Authority after hearing the parties on I.A.1143/2024 allowed the IA vide order 29.07.2024 and directed the plan to be considered by the CoC/RP. x. In the meantime, the CoC decided to conduct a challenge process in 17th meeting held on 23.04.2024. xi. On 29.04.2024 challenge mechanism was conducted in which appellant was declared as H-1 bidder. xii. Appellant submitted his resolution plan after the challenge process on 15.06.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was sent by Respondent No. 1 to the RP after expiry of timeline. RP brought into the notice of the CoC meeting held on 16.02.2024 about the plan of Respondent No. 1, which was filed after expiry of the timeline. CoC deliberated on the issue and decided not to accept resolution plan of the Respondent No. 1 and further the resolution plan of one who has submitted the Earnest Money Deposit (EMD) after expiry of the date. The said decision was taken by the CoC on 16.02.2024, after the aforesaid decision of the CoC not be accept the resolution plan of the Respondent No. 1, the Application was filed by the Respondent No. 1 in which application, none of the RAs, including the appellant was impleaded. The Adjudicating Authority has committed an error in allowing the application directing the consideration of resolution plan which having received after timeline could not be considered. Learned counsel for the appellant referring to the Regulation 39(1-B) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons), Regulations 2016 (for short 'the CIRP Regulations, 2016") contends that committee is statutory prohibited to consider the plan received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Authority in paragraph 23. The Respondent No. 1 admittedly submitted the plan on 15.02.2024 and handed over the same to RP at Pune. EMD of ₹2 crore by way of cheque was also credited into the bank account of corporate debtor on 15.02.2024. 9. Adjudicating Authority in the impugned order has observed that RP and CoC has lost sight of Regulation 36B (6) of the CIRP Regulations, 2016 and failed to exercise the discretion having been granted under the regulation to RP in consultation with CoC. Paragraph 29 of the judgment of the Adjudicating Authority is as follows: "29. It is evident from the perusal of the facts and circumstances of this case and the reply filed by Respondent No. 1/RP that the RP and also CoC seems to have lost sight of Regulation 36(B)(6) of IBBI (CIRP Regulation 2016) and thus failed to exercise the discretion having been granted under the regulations to RP in consultation with CoC." 10. Regulation 36B (6) & (6A) of the CIRP Regulations, 2016 which has been referred by Adjudicating Authority, provides as follows: "Regulation 36B: Request for resolution plans. (6) The resolution professional may, with the approval of the committee, extend the timelin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the due date and without EMD cannot be accepted under the provisions of IBC Code. Hence plans received after the due date and plan without EMD are not in complaint with the IBC Regulations. Subsequently, the plans may not be considered from the legal perspective. SBI informed that they are agreed with view of the RP and we have to abide the IBC Code. The other CoC members Suraksha ARC and Authorised representative of Homebuyers also agreed with the above view of the RP. Hence, the plan of Homebuyers of RNA Grandeur in consortium with Vraj Group and Ashdan Properties Private Limited will not be accepted. The RP is left with the 2 plans which is of PlatinumCorp Realty Hub Private Limited and Authum Investment and Infrastructure Limited in consortium with the Cosmos Prime Projects Limited. The representative of SBI asked for the further action to which the RP replied that the plans will be submitted to the legal counsel for vetting. The Representative of SBI asked the RP to complete the legal vetting process of the plans as early as possible..." 12. The present is a case where the CoC deliberated and took a decision not to accept the plan of Respondent No. 1, which was received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dhar' Vs. 'Panna Pragati Infrastructure Private Ltd. & Ors.' in Civil Appeal Nos. 3665-3666 of 2020. It is useful to extract paragraphs 21 & 22 of the judgment, which is as follows: "21. The Respondent No.2 who had filed an Application before the Adjudicating Authority relying on its e-mails dated 19.07.2022 and 29.07.2022 by which it modified its financial proposal clearly admitted that in pursuance of bidding process held on 15.07.2022, it had submitted its Resolution Plan on 18.07.2022. The Adjudicating Authority in the impugned order, as noted above, has not given any reason as to why direction is being issued to consider the revised Resolution Plan of Respondent No.2. There is a reference of judgment of the Hon'ble Supreme Court in "Ajay Gupta vs. Pramod Kumar Sharma- Civil Appeal No. 1358 of 2022" but we failed to see that how the said judgment helped the Respondent No.2 in seeking the direction to modify his Resolution Plan which he had submitted after completion of Challenge Process. Order of the Adjudicating Authority does not give any reason as is clear from the order itself. 22. We may also notice a judgment of the Hon'ble Supreme Court in Civil Appeal Nos. 3665-366 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, who was absent in the meeting, as to whether it would be allowed to participate in the further bidding process or not. The CoC members specifically replied that since they were at the neck of the timeline (i.e. 180 days were to get over on 24th February, 2020), it was decided to exclude the respondent No.1PPIPL, who was not present in the said meeting. The proceedings commenced after lunch break, wherein only two prospective Resolution Applicants, i.e., Ngaitlang Dhar and Mr. Abhishek Agarwal were present. Thereafter, the CoC adopted Swiss Challenge open bidding method. In the said bidding process, both prospective Resolution Applicants present increased their offer. In the said open bidding process between the two prospective Resolution Applicants present, Ngaitlang Dhar was found to be the highest bidder/prospective Resolution Applicant having offered the bid of an upfront amount of Rs.64.30 crore plus CIRP costs. The said Resolution Plan of Ngaitlang Dhar was approved unanimously by Allahabad Bank having 68.34% voting rights and the Corporation Bank having 31.66% voting rights. 26. It is thus clear that the respondent No.1PPIPL was very much aware that the CoC has decided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of resolution plan was on or before 21-9-2018. The second Form 'G' came to be issued on 24-8-2018, 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. 8. On 29-1-2019, KIAL sent an email to RP, raising its objection permitting Kalpraj to submit resolution plan, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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%." 17. The above judgment does not come to the aid of Respondent No. 1 since in the above case CoC had resolved to accept the plan which was submitted after expiry of last date, whereas in the present case CoC resolved not to accept the plan of Respondent No. 1 which was received after last date. 18. There is one more relevant fact which need to be noticed subsequent to the decision of the CoC on 16.02.2024 and 17.02.2024, CoC decided to conduct a challenge process on 23.04.2024, which was completed on 29.04.2024, in which the appellant was declared as H-1 bidder. The Respondent No. 1 had not been invited to participate in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
