2021 (12) TMI 911 - AT - Insolvency and Bankruptcy

Tribunal Modifies Orders for Resolution Applicants, Emphasizes Avoiding Liquidation

Alchemist Asset Reconstruction Company Ltd. Versus Chandra Prakash Resolution Professional Dignity Buildcon Pvt. Ltd. & Ors. And Madhav Dhir Versus Chandra Prakash Resolution Professional Dignity Buildcon Pvt. Ltd. & Ors.

The Tribunal modified the Adjudicating Authority's orders, directing all four Resolution Applicants to submit revised plans within 15 days and the CoC to ... Approval of Resolution Plan - voting share was not sufficient enough to get any plan approved - HELD THAT:- The object of CIRP is Resolution of the Corporate Debtor. 330 days including the extensions granted by the Adjudicating Authority was coming to an end on 09.03.2021. The Adjudicating Authority noticing that object of CIRP is Resolution of the Corporate Debtor had directed for consideration of all the four plans who have permitted to give revised plan - The matter has been pending before Adjudicating Authority after the last round of voting due to Applications filed by ‘Standard Chartered Bank’ and ‘Experion’ to exclude ‘Alchemist Asset Reconstruction Company Ltd.’ from voting. Liquidator also filed an Application No. 1367 of 2021 praying for liquidation in view of the fact that no Resolution Plan having received requisite number of votes which Application was deferred by the Adjudicating Authority by its order dated 01.10.2021. The Adjudicating Authority on 01.10.2021 has directed for consideration of two plans which were pending. In subsequent order dated 25.11.2021, direction was passed for voting on two plans which received 64.64% votes. The above order was passed by the Adjudicating Authority since it was not posted with the fact that two Prospective Resolution Applicants namely- ‘Sattva’ and ‘M3M’ has withdrawn their Bid Bond Guarantee on 07.05.2021 and 09.07.2021, respectively - although there were four plans which came for consideration before the CoC but no one could achieve requisite number of votes i.e. 66% vote. In the CIRP of the Corporate Debtor, serious efforts were made for Resolution of Insolvency. 54 meetings of the CoC have been conducted so far but unfortunately no plan could receive requisite number of votes to get approval. In the present case, although 330 days have elapsed but present is a case where as per direction of the Adjudicating Authority only re-voting has to be conducted to find out as to whether any Resolution Plan could get requisite number of votes failing which liquidation order is to be passed for which Application has already been submitted by the Resolution Professional which is pending consideration before the Adjudicating Authority and the Adjudicating Authority has deferred the consideration of liquidation Application only due to the fact that it had directed for fresh voting. There are only two option available as on date, first to direct the Adjudicating Authority to take up the Application filed by the Resolution Professional for passing an order for liquidation and second to make a last effort to see as to whether any of the four plans could get the requisite number of votes i.e. 66% vote. The Resolution Process having gone such a long way, it should be brought to its logical end. We record out approval to the CoC decision dated 07.10.2021 to approach all the four Resolution Applicants. Much time having lapsed, we are of the view that before the Application filed by the Resolution Professional praying for liquidation is taken by the Adjudicating Authority, we may give one more opportunity to all the four Resolution Applicants to submit their revised plan and thereafter the CoC may deliberate and vote on all the four plans. All four Resolution Applicants may submit their revised plan within 15 days from date of this order - The Resolution Applicants i.e. ‘Sattva’ and ‘M3M’ and any other who have withdrawn their BBG may submit their BBG along with revised plan, if they so intend, within a period of 15 days - Appeal disposed off. Issues Involved:1. Voting on Resolution Plans.2. Exclusion of a Financial Creditor from voting.3. Clarification of Adjudicating Authority's orders.4. Submission and consideration of revised Resolution Plans.5. Liquidation proceedings.Issue-wise Detailed Analysis:1. Voting on Resolution Plans:The Corporate Insolvency Resolution Process (CIRP) was initiated against the Corporate Debtor on 24.04.2019. The Resolution Professional received 16 Expressions of Interest (EoI) and conducted three rounds of voting on the Resolution Plans. In the first and second rounds, 'Sattva' received 64.64% of the votes but failed to achieve the requisite 66%. In the third round, 'Sattva' and 'Experion' both received 64.64% votes. The Appellant's voting share of 35.36% was sufficient to reject any plan but not to approve one. Consequently, no plan received the necessary votes for approval.2. Exclusion of a Financial Creditor from Voting:The Appellant, having a voting share of 35.36%, was accused of ensuring that no Resolution Plan was approved. Applications were filed by 'Experion' and 'Standard Chartered Bank' to exclude the Appellant from voting. The Adjudicating Authority deferred the consideration of the liquidation application and directed the CoC to reconsider the pending plans.3. Clarification of Adjudicating Authority's Orders:The Adjudicating Authority's order dated 01.10.2021 directed the CoC to reconsider two pending plans. The Resolution Professional sought clarification on whether the two plans referred to were those of 'Sattva' and 'Experion' or 'MD/AD' and 'Experion'. The Adjudicating Authority, on 25.11.2021, clarified that the two plans receiving 64.64% votes should be considered, which included 'Experion' and another plan. However, 'Sattva' had withdrawn, making 'Experion' the only plan for consideration.4. Submission and Consideration of Revised Resolution Plans:The CoC, in its meeting on 07.10.2021, decided to approach all four Resolution Applicants to confirm their interest in participating again. 'Sattva' did not respond, 'M3M' expressed interest, 'Experion' sought permission to submit a revised plan, and 'MD/AD' confirmed their participation. The Resolution Professional filed an application seeking clarification on whether 'M3M' should also be allowed to submit their plan. The Adjudicating Authority directed the CoC to ensure the completion of the voting process within seven days.5. Liquidation Proceedings:The Adjudicating Authority deferred the liquidation application filed by the Resolution Professional, pending the outcome of the voting process. Given the elapsed 330 days and the failure to achieve the requisite votes, the Tribunal considered whether to direct the liquidation or make a final attempt to resolve the insolvency. The Tribunal decided to give one more opportunity to all four Resolution Applicants to submit their revised plans and directed the CoC to deliberate and vote on these plans within 30 days.Conclusion:The Tribunal modified the orders of the Adjudicating Authority dated 25.11.2021 and 01.10.2021, directing all four Resolution Applicants to submit their revised plans within 15 days and the CoC to complete the process within 30 days. The Tribunal emphasized the need to make serious efforts to save the Corporate Debtor from liquidation. The appeals were disposed of with no order as to costs.