2023 (3) TMI 176 - AT - Insolvency and Bankruptcy

Appeals allowed, order set aside. CoC empowered for negotiations and Challenge Mechanism. Retained right to maximize value.

Vistra ITCL (India) Ltd. Versus Torrent Investments Pvt. Ltd. & Ors. And Indusind International Holdings Ltd. Versus Torrent Investments Pvt. Ltd. & Ors.

Vistra ITCL (India) Ltd. Versus Torrent Investments Pvt. Ltd. & Ors. And Indusind International Holdings Ltd. Versus Torrent Investments Pvt. Ltd. & Ors. ... Issues Involved:1. Whether the Appellant - Vistra ITCL (India) Ltd. has appropriate authority to pursue the present Appeal.2. Whether the Committee of Creditors (CoC) was obliged to put the draft plans submitted by the Resolution Applicants to vote without any other option after completion of the Challenge Mechanism.3. Whether value maximization was achieved after the result of the Challenge Mechanism held on 21.12.2022 and if the CoC was prohibited from taking further steps towards value maximization.4. Whether the clauses of the Request for Resolution Plan (RFRP) permit the CoC to negotiate, enter into discussion with the Resolution Applicants to increase their plan value, amend their plan, or tweak any other Challenge Mechanism, and if these clauses are ultravires under Regulation 39(1A) (b).5. Whether the decision of the CoC taken in the meeting dated 06.01.2023 to conduct an extended Challenge Mechanism amongst both the Resolution Applicants is impermissible and violative of Regulation 39(1A) (b).Issue-wise Detailed Analysis:1. Authority of Appellant - Vistra ITCL (India) Ltd.:The Appellant, Vistra ITCL (India) Ltd., was impleaded as a respondent in the application filed by Torrent Investments Pvt. Ltd. and is a member of the CoC. The appeal was filed through an authorized representative, Mr. Supratik Dasgupta, supported by a Board Resolution. The Appellant, being a financial creditor and member of the CoC, holds sufficient locus to challenge the impugned order.2. Obligation of CoC Post-Challenge Mechanism:The CoC is not obliged to put the draft plans to vote immediately after the Challenge Mechanism. The RFRP clauses, such as 3.17.17 and 4.2.4, reserve the right for the CoC to negotiate with the Resolution Applicants even after the Challenge Mechanism. The CoC can reject all plans, call for new ones, or negotiate further to maximize value.3. Value Maximization and Further Steps by CoC:The completion of the Challenge Mechanism does not imply that value maximization is achieved. The CoC retains the right to further negotiate and take steps to maximize the value of the Corporate Debtor. Regulation 39(1A) does not prohibit the CoC from taking further steps post-Challenge Mechanism.4. Clauses of RFRP and Their Validity:Clauses 4.2.4, 4.2.9, 4.3.7, and 4.4.4 of the RFRP permit the CoC to negotiate, amend, and call for revised plans. These clauses are not ultravires under Regulation 39(1A) (b). Regulation 39(1A) is a procedural mechanism and does not restrict the CoC's right to negotiate or take further steps for value maximization.5. Decision to Conduct Extended Challenge Mechanism:The decision of the CoC on 06.01.2023 to conduct an extended Challenge Mechanism is permissible and not violative of Regulation 39(1A) (b). The CoC's decision was based on dissatisfaction with the outcomes of the initial Challenge Mechanism and was within their rights as per the RFRP clauses.Conclusion:The appeals are allowed, and the order dated 02.02.2023 is set aside. The CoC is empowered to negotiate further with the Resolution Applicants and conduct an extended Challenge Mechanism. The CoC may proceed to fix a date for holding a Revised Challenge Mechanism or take any steps for further negotiations as per the RFRP. An exclusion of 30 days period is allowed for this process.