2021 (10) TMI 388 - AT - Insolvency and Bankruptcy

Tribunal Upholds CoC's Approval of Resolution Plan, Stresses Timely Compliance

Amanat Randhawa Hotels Pvt. Ltd. Versus Shashi Kant Nemani Resolution Professional of Aryavir Buildcon Private Limited, Committee of Creditors of Aryavir Builcon Private Limited, Amit Arora

The Tribunal dismissed both appeals, upholding the Adjudicating Authority's decision to dismiss the application due to the Resolution Plan's prior ... Seeking the ‘Expression of Interest’ be considered - Approval of Resolution Plan - Section 30(6) of IBC - HELD THAT:- It is not in dispute that the IRP issued the Public Announcement under Section 15 of the Code on 25.12.2020 in Form A in the ‘Financial Express’ (English) in Delhi and Chandigarh Editions apart from ‘Jansatta’ and ‘Dainik Jagran’, inviting claims from the Creditors of the ‘Corporate Debtor’. The record shows that after receiving the claims, the IRP collated the list of Creditors and constituted the CoC. In terms of the decision of the CoC in the 2nd Meeting held on 15.02.2021, the RP carried out publication of Form G inviting ‘Expression of Interest’ in ‘Economic Times’ and All India Edition on 19.02.2021, the ‘Business Standard’ on 20.02.2021 and in ‘Punjab Jagran’, Amritsar. Hence, the contention of the Learned Counsel appearing for the Appellant that vide publicity was not given while inviting EoI, is unsustainable. It is seen from the record that the Appellant sought the indulgence of the RP to place its offer before the CoC for consideration vide emails dated 15.06.2020 and 16.06.2021, which were placed before the CoC by the Resolution Professional, but as the last date for submission of EoI has expired, the CoC rejected the same. Admittedly, the last date for submission of EoI’s was 06.03.2021 and the extended last date for submission of Resolution Plan was 10.05.2021 and it is pertinent to note that the email sent by the Appellant herein is dated 13.06.2021, which is much after the last date - Regulation 36A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, clearly stipulates that ‘the Expression of Interest received after the time specified in the limitation under clause (b) of sub-Regulation (3) shall be rejected’. The legislative intent of the statute together with the fact that in the instant case the Resolution Plan was accepted by 100% of voting share in the CoC Meeting dated 21.06.2021 and having regard to the fact that the Appellant had never participated in the EoI, we are of the view that any reliefs granted in contra to the timelines would be ultra vires to the scope and objective of the Code - The ratio of the Hon’ble Supreme Court in ‘Ebix Singapore Pvt. Ltd.’ [2020 (8) TMI 338 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] is squarely applicable to the facts of this case wherein it was observed by the Hon’ble Apex Court that once the Plan is approved by majority of the CoC as provided for under Section 30 of the Code, then no fresh plans may come in intervention of an already approved Plan. Appeal dismissed. Issues Involved:1. Validity of the dismissal of the application by the Adjudicating Authority.2. Consideration of the Expression of Interest (EoI) by the Resolution Professional.3. Conditions imposed by the Adjudicating Authority on the Appellant.4. Adherence to the timelines and process by the Committee of Creditors (CoC).Detailed Analysis:1. Validity of the dismissal of the application by the Adjudicating Authority:The Appellant challenged the Orders of the Adjudicating Authority in I.A. 2763 of 2021 and I.A. 2714 of 2021. The Adjudicating Authority dismissed the application on the grounds that it was filed after the approval of the Resolution Plan by the CoC. The Tribunal noted that the application was dismissed because the Resolution Plan was already approved, making the application redundant.2. Consideration of the Expression of Interest (EoI) by the Resolution Professional:The Appellant argued that the EoI was not widely published as required under Regulation 36A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. However, the Tribunal found that the EoI was published in multiple widely-read newspapers, including 'Economic Times,' 'Business Standard,' and 'Punjab Jagran,' fulfilling the publication requirements. The Tribunal noted that nine EoIs were received by the last submission date, and the CoC extended the last date for submission of Resolution Plans due to the lockdown, indicating that the process was followed correctly.3. Conditions imposed by the Adjudicating Authority on the Appellant:The Appellant contended that the Adjudicating Authority should not have imposed conditions while allowing them to file their claim before the CoC. The Tribunal observed that the conditions imposed, including the payment of Rs. 10 Crores within seven working days and Rs. 50 Crores before 23.09.2021, were to ensure the seriousness and bonafides of the Appellant. The Tribunal found these conditions justified given the Appellant's late submission and the substantial financial commitment involved.4. Adherence to the timelines and process by the Committee of Creditors (CoC):The Tribunal emphasized the importance of adhering to the timelines and process stipulated under the Insolvency and Bankruptcy Code. The CoC, with 98.03% votes, extended the CIRP by 90 days and approved the Resolution Plan of Mr. Sarabjit Singh with 100% voting share. The Tribunal highlighted that the Appellant's EoI was submitted well past the deadline, and the CoC, in its commercial wisdom, decided not to entertain any new offers beyond the established timelines. The Tribunal referenced the Supreme Court's decisions in 'Committee of Creditors of Essar Steel India Limited' and 'Ghanshyam Mishra & Sons Pvt. Ltd.' to underscore the limited scope of judicial review in such business decisions by the CoC.Conclusion:The Tribunal dismissed both appeals, affirming that the process and timelines were adhered to correctly. The dismissal was based on the fact that the Appellant's EoI was submitted late, and the conditions imposed by the Adjudicating Authority were reasonable to ensure the Appellant's commitment. The Tribunal reiterated that any relief granted contrary to the established timelines would be ultra vires to the scope and objective of the Insolvency and Bankruptcy Code.