Resolution professional must provide all resolution plans to suspended board within two weeks so they can review and comment

SC allowed the appeal and directed the resolution professional to furnish copies of all resolution plans to the suspended/erstwhile Board of Directors within two weeks, holding that though not CoC members they have a right to participate in CoC meetings and to receive plans beforehand to comment, similarly to operational creditors who participate without voting rights. Regulations align with the Code in requiring disclosure subject to confidentiality; the resolution professional may obtain undertakings. Time spent in these proceedings is to be excluded from the corporate insolvency resolution period.

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Issues Involved:
1. Right of suspended Board of Directors to access insolvency resolution plans.
2. Interpretation of relevant sections and regulations under the Insolvency and Bankruptcy Code, 2016.
3. Confidentiality concerns regarding the sharing of resolution plans.
4. The role and rights of participants in the Committee of Creditors (CoC) meetings.
5. Applicability of the Bankruptcy Law Committee Report of 2015.

Detailed Analysis:

1. Right of suspended Board of Directors to access insolvency resolution plans:
The appeal arose from the Appellate Tribunal's judgment rejecting the appellant’s request for access to relevant documents, including insolvency resolution plans, to enable meaningful participation in CoC meetings. The appellant, a member of the suspended Board of Directors, was initially allowed to attend CoC meetings but was later denied participation and access to documents, leading to the filing of Miscellaneous Application No.518 of 2018. The NCLT dismissed the application, allowing attendance at CoC meetings without access to confidential information. The Appellate Tribunal upheld this decision, prompting the present appeal.

2. Interpretation of relevant sections and regulations under the Insolvency and Bankruptcy Code, 2016:
The appellant argued that under Sections 24, 25, 29, and 31 of the Code, and corresponding regulations, members of the suspended Board of Directors should be provided with all relevant documents, including resolution plans, to participate effectively in CoC meetings. The respondents countered that resolution plans are only to be given to the CoC under Section 30(3) and Regulation 39(2). The court examined the statutory scheme, noting that while the suspended Board of Directors are not CoC members, they have a right to participate in meetings and discuss resolution plans presented under Section 25(2)(i), as these plans bind them under Section 31(1).

3. Confidentiality concerns regarding the sharing of resolution plans:
The respondents emphasized the confidentiality of resolution plans, arguing that sharing them with the suspended Board could lead to breaches. The court acknowledged the need for confidentiality but noted that the resolution professional could require non-disclosure agreements and indemnities to safeguard confidential information, as provided under Regulation 7(2)(h) and the First Schedule of the Insolvency Professionals Regulations, 2016.

4. The role and rights of participants in the Committee of Creditors (CoC) meetings:
The court highlighted that participants, including the suspended Board of Directors, have the right to receive notice of CoC meetings, which must include an agenda and copies of all relevant documents (Regulation 21(3)(iii)). The term "documents" includes resolution plans, and participants must have access to these to effectively discuss and safeguard their interests. The court rejected the argument that participants are only information providers, noting that they are vitally interested in the resolution plans, which affect their rights and liabilities.

5. Applicability of the Bankruptcy Law Committee Report of 2015:
The court referred to the Bankruptcy Law Committee Report of 2015, which emphasized the need for information symmetry between creditors and debtors and access to essential information for all parties involved in the resolution process. The court found that the report supported the appellant's position on the need for access to resolution plans.

Conclusion:
The court concluded that the suspended Board of Directors must be given copies of resolution plans to participate effectively in CoC meetings. The judgment of the Appellate Tribunal was set aside, and the appeal was allowed. The court directed that the appellants be provided with resolution plans within two weeks, followed by CoC meetings to deliberate on the plans afresh. The time utilized in these proceedings was excluded from the resolution process period.

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