2024 (5) TMI 16 - AT - Insolvency and Bankruptcy

NCLAT overturns liquidation order after finding concealment of material facts regarding resolution plan payment extension

Cosmos Cooperative Bank Ltd. Versus Edelweiss Asset Reconstruction Company Ltd. & Ors. And Anil Kumar Versus Edelweiss Asset Reconstruction Company Ltd. & Ors.

Cosmos Cooperative Bank Ltd. Versus Edelweiss Asset Reconstruction Company Ltd. & Ors. And Anil Kumar Versus Edelweiss Asset Reconstruction Company Ltd. & ... Issues Involved:1. Whether the extension of the timeline for payment by the Successful Resolution Applicant (SRA) constitutes a modification of the Resolution Plan.2. Whether the Adjudicating Authority erred in directing liquidation despite the Committee of Creditors (CoC) deciding against it.3. Whether the application for liquidation by Respondent No.1 was valid without impleading the CoC, RP, or SRA.4. Whether the Adjudicating Authority failed to consider the subsequent decision of the Financial Creditors granting an extension to the SRA.Summary of Judgment:Issue 1: Extension of Timeline as Modification of Resolution PlanThe learned Senior Counsel for the Appellants argued that the extension of the timeline for payment by the SRA does not amount to a modification of the Resolution Plan. The Adjudicating Authority's view that such an extension constitutes a modification was deemed erroneous. The Tribunal referenced previous judgments, such as Tricounty Premier Hearing Service Inc. vs. State Bank of India, to support the stance that extending payment timelines does not modify the Resolution Plan.Issue 2: CoC Decision Against LiquidationThe Adjudicating Authority had earlier directed the RP to convene a CoC meeting to decide on liquidation. In the meeting held on 08.07.2022, the CoC, with a 59.73% vote share, decided against liquidation. This decision was not challenged and became final. The Tribunal held that the Adjudicating Authority erred in ignoring this commercial decision of the CoC, which should not have been interfered with.Issue 3: Validity of Application Without Impleading CoC, RP, or SRARespondent No.1 filed IA No.2767 of 2022 without impleading the CoC, RP, or SRA, against whom contravention was alleged. The Tribunal noted that the application was filed without giving an opportunity to these parties to respond, which was improper. The Adjudicating Authority proceeded without issuing notice or granting an opportunity to the CoC and SRA, which was a procedural lapse.Issue 4: Consideration of Subsequent Decision by Financial CreditorsThe Financial Creditors, in a meeting on 02.12.2022, decided to grant further time to the SRA to make payments as per the revised timeline. This decision was approved by 69.04% of the vote shares. Respondent No.1, who participated in this meeting and voted against the extension, did not bring this subsequent decision to the notice of the Adjudicating Authority. The Tribunal found that Respondent No.1's failure to disclose this relevant fact indicated an intent to obtain a liquidation order by concealing material information.Conclusion:The Tribunal allowed the appeals, set aside the impugned order dated 13.02.2023 directing liquidation, and dismissed IA No.2767 of 2022. It was held that the SRA had already deposited the required amount along with interest, and the RP was directed to distribute the amount to the Financial Creditors as per the Resolution Plan and the decision of the Financial Creditors dated 02.12.2022.