2021 (12) TMI 912 - AT - Insolvency and Bankruptcy

Tribunal upholds CoC's decision on Resolution Plan appeal

Indian Potash Limited (Unsuccessful Resolution Applicant) Versus Naresh Kumar Verma, Resolution Professional for the Corporate Debtor (Bohra Industries Limited), State Bank of India, (CoC Member with 100% voting rights), Sri Krishna Agarwal, Lead Member of Consortium (Successful Resolution Applicant)

The tribunal dismissed the appeal challenging the approval of Respondent No.3's Resolution Plan by the Adjudicating Authority. The CoC's decision to ... Approval of Resolution Plan - opportunity to revise the plan not provided - declination of possibility of any upward revision in Appellant’s offer - HELD THAT:- A perusal of the minutes clearly indicate that both the Resolution Applicants were given multiple opportunities to submit their revised Plans. The submission of the Appellant that he was not given opportunity to revise the Plan after receipt of 2nd Plan of Respondent No.3, is without any substance and against the record. The Plans of both the Resolution Applicants were deliberated by the CoC in several meetings and both the Resolution Applicants were requested to enhance the value of their Plans. Final Plans were received by the Resolution Professional from both the Resolution Applicants before 19.09.2020 and thereafter, it was put to vote. By 100% vote of CoC, the Plan of Respondent No.3 was accepted and Plan of Appellant was rejected. The Adjudicating Authority in the impugned judgment has returned a finding that Resolution Plan approved by the Committee of Creditors is as per provisions of Section 30(2)(a) to 30(2) sub-section (e) and also complies the provisions of Regulation 38 and 39. The Resolution Plan dated 09.09.2020 along with all addendums dated 19.09.2020 as approved by the CoC, was rightly approved by the Adjudicating Authority by the impugned judgment. Appeal dismissed. Issues Involved:1. Approval of the Resolution Plan by the Adjudicating Authority.2. Compliance with the evaluation matrix and the Insolvency and Bankruptcy Board of India (IBBI) Regulations.3. Commercial wisdom of the Committee of Creditors (CoC).4. Opportunity for the Appellant to revise its Resolution Plan.5. Grounds for appeal under Section 61(3) of the Insolvency and Bankruptcy Code (IBC).Issue-wise Detailed Analysis:1. Approval of the Resolution Plan by the Adjudicating Authority:The appeal was filed by an unsuccessful resolution applicant challenging the order dated 13.10.2021, where the Adjudicating Authority approved the Resolution Plan of Respondent No.3. The Corporate Insolvency Resolution Process (CIRP) was initiated against Bohra Industries Limited on 9th August 2019. The Resolution Plan submitted by the Appellant was rejected by the CoC with 100% voting, while the plan by Respondent No.3 was approved unanimously.2. Compliance with the evaluation matrix and the IBBI Regulations:The Appellant argued that the Adjudicating Authority erred in approving the Resolution Plan of Respondent No.3, claiming the higher upfront payment offered by the Appellant should have been preferred. The CoC followed the evaluation matrix, and the Successful Resolution Applicant scored higher (51.49 marks) compared to the Appellant (48.51 marks). The value of Respondent No.3’s plan was 26.31 Crores with NPV of 24.79 Crores, while the Appellant’s plan was valued at 21.25 Crores. The tribunal found no breach of Regulation 39(3) of the IBBI Regulations.3. Commercial wisdom of the CoC:The tribunal emphasized the paramount status of the CoC’s commercial wisdom, as highlighted by the Hon’ble Supreme Court in K. Sashidhar vs. Indian Overseas Bank and Ors. The CoC’s decision, made after thorough examination and deliberation, is non-justiciable and beyond judicial intervention.4. Opportunity for the Appellant to revise its Resolution Plan:The Appellant claimed no opportunity was given to enhance its plan value after the submission of the second plan by Respondent No.3. However, the tribunal noted that multiple opportunities were provided in the 10th, 11th, 12th, and 13th CoC meetings for both applicants to revise their plans. The final plans were received and voted upon, with Respondent No.3’s plan being approved unanimously.5. Grounds for appeal under Section 61(3) of the IBC:The tribunal reviewed the grounds for appeal under Section 61(3) of the IBC, which include contravention of law, material irregularity, non-provision for operational creditors, insolvency resolution process costs, and non-compliance with criteria specified by the Board. The tribunal found no merit in the Appellant’s arguments, as the CoC’s decision adhered to the evaluation matrix and regulatory provisions.Conclusion:The tribunal dismissed the appeal, affirming the Adjudicating Authority’s approval of Respondent No.3’s Resolution Plan. The tribunal upheld the CoC’s commercial wisdom and found no procedural or regulatory breaches. The appeal was dismissed with no order as to costs.