2020 (1) TMI 1207

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....ady approved by the committee of creditors of the Corporate Debtor, M/S Educomp Solutions Limited and for refund of the earnest money. 2. The ease of the applicant in a nutshell is that it had submitted resolution plan vide communication dated 27.10.2018 which was subsequently revised on 19.02.2018 (as amended vide amendment dated 21 February 2018), The Resolution Applicant also furnished a sum of Rs. 2 Crores by way of a Bank Guarantee towards earnest money deposit for the insolvency resolution process along with submission of the Financial Proposal. 3. Thereafter the said resolution plan submitted by the applicant was approved by the Committee of Creditors by 75.36% majority votes. Subsequently, the Resolution Professional filed an application dated 07.03.2018 under Section 30 (6) of the Code, seeking approval of the Resolution Plan as approved by the Committee of Creditors. 4. The Resolution Applicant has sought for withdrawal of the Resolution Plan dated 21.02.2018, on account of several factors, inter alia, including: (a) Inordinate lapse of time in the conclusion of the Corporate Insolvency Resolution Process initiated against the Corporate Debtor; (b) Apprehensions of....

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....solution Professional. No ground for considering the prayer sought in the application is made out. The application is dismissed as such," 10. Learned senior counsel on behalf of COC relying on several judgements argued that the applicant has already raised the very same issue of withdrawal of resolution plan earlier and the same having being considered and rejected and the dismissal of CA No. 1252 (PB)/2019 being final, the applicant cannot be allowed to re-agitate the self-same matter again. 11. No doubt there was a prayer for withdrawal of resolution plan amongst others in CA No. 1252 (PB)/2019, the prayer for revaluation was specifically declined dismissal order dated 10.07.2019. While dismissing CA No. 1252(PB)/2019 the prayer for withdrawal of resolution plan was neither considered nor was ever dealt with. The issue of withdrawal of the resolution plan by the Applicant has never been considered consciously on merit and/or adjudicated upon in CA No. 1252(PB) 12. Doctrine of Constructive Res Judicata does not apply to the issues/ points, or any "lis' between parties that has not been decided previously, and despite being pleaded, has not been considered by a court/ tribun....

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.... entirely go to waste if withdrawal of the resolution plan as sought in the present application is accepted. It was strenuously argued that allowing such a prayer of withdrawal of resolution plan would render the entire CIR Process a nugatory, thus, wasting the money, resources and time already invested in the process. 19. In this regard applicant has submitted that withdrawal of a Resolution Plan has been permitted by NCLT, Mumbai Bench in the case of Satyanarayan Malu vs. SBM Paper Mills M.A. 1396/2018, 827/2018, 1142/2018, & 828/2018 in C.P.  It is argued that there is no absolute bar under any of the provisions of the Code for the withdrawal of the Resolution Plan. 20. In the instant case the Resolution Plan is still pending before the Adjudicating Authority for approval. Under the provisions of Section 31 of the Code, a Resolution Plan becomes binding only after acceptance of a plan by the Adjudicating Authority. 21. Hon'ble Appellate Tribunal in the case of Deccan Value Investors L.P. v. Dinkar Venkatasubramanian in Company Appeal (AT) (Insolvency) No.222 of 2019 directed that application for withdrawal of the resolution plan filed by the Resolution Applicant is to be....

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....o note here that the Corporate Insolvency Resolution Process against the Corporate Debtor was initiated vide order dated 30.05.2017 passed in IB-101 (PB)/2017a Under third proviso to sub-section (3) of Section 12 of the Code the corporate insolvency resolution process period has expired on 16.11.2019. 28. Ordinarily the Corporate Insolvency Resolution Process period must be completed within the outer time limit provided under the Code. However, in exceptional cases in order to achieve a resolution and to avoid to drive the corporate debtor into liquidation, Adjudicating Authority (NCLT) can extend the outer time limit provided under the Code. 29. It is relevant to refer to the decision of the Hon'ble Supreme Court in Civil Appeal No. 8766-67 of 2019 in the matter of Committee of Creditors of Essar Steel India Limited Versus Satish Kumar Gupta & Ors. decided on 15th Novernber 2019, where it was inter-alia held that: "Thus, while leaving the provision otherwise intact, we strike down the word "mandatorily" as being manifestly arbitrary under Article 14 of the Constitution of India and as being an excessive and unreasonable restriction on the litigant's right to carry on b....