TaxTMI 
TaxTMI 
2021 (3) TMI 629
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Shatrajit Banerji, Mr. Aditya Jindal and Ms. Madhavi Khanna, Advocates for R-3 ORDER 1. The present Appeal is filed by the Appellant under Section 61 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') against the Impugned order dated 26.10.2020 passed by the Adjudicating Authority (National Company Law Tribunal, Principal Bench, New Delhi ) in relation, to CA No.1393(PB)/2019 (which was filed for approval of the Resolution Plan with respect to the Corporate Debtor) and CA No.2875(PB)/2020 (which was filed by the Appellant seeking directions for consideration of its resolution proposal) in CP No. (IB)- 50(PB)/2018. 2. The Appellant has a grievance that he has submitted his Expression of Interest (EOI) on 12.06.2020 and the Resolution Professional has not placed before Committee of Creditor (CoC) for consideration of its proposal inspite of the offer of the Appellant to pay an amount of Rs. 2000 Crore towards full and final settlement of outstanding debt of Corporate Debtor and Appellant being ready and willing to deposit a sum of Rs. 1000 Crore in Escrow account, if its proposal is allowed to be submitted, Resolution Plan amount would be 33% more than the amount offe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wers by the Resolution Professional during the CIRP. It was also raised that the Adjudicating Authority impugned order itself made a determination that the Resolution Plan is in contravention to Section 30(2)(b) of the Code, para 133 to 137 of the impugned order which deals with the issue of more to Operational Creditor vis a vis dissenting unsecured Financial Creditors which is in contravention of Section 30(2) read with Section 53(1) of the Code. The Appellant has cited the judgment of Hon'ble Apex Court in the matter of Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta & Ors., (2019) SccOnline SC 1478 and held in para "73. If the Adjudicating Authority finds, on a given set of facts, that the aforesaid parameters have not been kept in view, it may send a resolution plan back to the Committee of Creditors to re-submit such plan after satisfying the aforesaid parameters. The reasons given by the Committee of Creditors while approving a resolution plan may thus be looked at by the Adjudicating Authority only from this point of view, and once it is satisfied that the Committee of Creditors has paid attention to these key features, it must then pass the resol....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oresaid Hon'ble Apex Court Judgment. The Appellant has stated that two members of CoC i.e. Commercial Bank of Dubai and IDBI Bank have expressed their willingness to consider the proposal of Appellant but Resolution Professional has failed to place it before the CoC so Resolution Professional failed to facilitate to place before the CoC and has assumed the power of CoC this is fundamentally wrong and violative of the provisions of the Code. 7. However, the Respondent No.1 i.e the Erstwhile Resolution Professional has informed that the Resolution Plan has been Successful implemented and the Successful Resolution Applicant (Respondent No.3) is now in management and control of Asian Colour Coated Ispat Limited, corporate debtor. The learned Sr. Counsel for Respondent No.1 has also submitted the Resolution Plan of the Resolution Applicant was approved with 79.3% voting of CoC on 20.06.2019 and the Applicant seeking approval of Resolution Plan was filed by Resolution Professional under Section 31 of the Code on 10.07.2019. Learned Sr. Counsel has also submitted that Appeal to the Appellate Tribunal under Section 61(3) of the Code can be filed only by "Person Aggrieved" on grounds speci....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed that the Appellant has no locus to either challenge the provisions of the Resolution Plan or the implementation of the same. Since the Appellant is not a stakeholder, it is in no way an aggrieved party in respect of compliance or non-compliance of the Resolution Plan with Section 30(2) of the Code. Hence, any challenge to the Resolution Plan on these grounds cannot be raised by the Appellant. Without prejudice, it is submitted that the Resolution Plan complies with the provisions of Section 30(2) of the Code. It is reiterated that the garb of challenging the Resolution Plan and the process followed by the RP, the Appellant is seeking directions to the CoC to consider its proposal, which it has no locus to do. Further, the Adjudicating Authority and the Appellate Authority do not have any jurisdiction to suo-moto direct the CoC to consider a proposal of another entity when the Successful Resolution Plan has already been approved by the CoC and the Adjudicating Authority. 8. The learned counsel for the Respondent No.2 (CoC) has submitted that the Appellant never participated in CIRP nor submitted any Resolution Plan. No EOI was submitted by the appellant within the stipulated ti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Respondent has submitted that in the present case, the Appellant is not even an unsuccessful Resolution Applicant, or for that matter, even a prospective Resolution Applicant. In light of this Appellate Tribunal's decision in Hindustan Oil Exploration Company Vs. Erstwhile CoC of JEKPL Pvt. Ltd (Company Appeal (AT) (Ins) No. 969 of 2020, whereby even an unsuccessful Resolution Applicant was held to have no locus, it is submitted that the Appellant, can by no stretch of imagination have any locus to challenge the plan approval order. Commercial decisions of the CoC cannot be overturned under the garb of maximization of value. This Appellate Tribunal, has time and again given primacy to the commercial wisdom of the CoC. In Shrawan Kumar Agarwal Consortium Vs. Rituraj Steel Private Limited, 2020 SCC online NCLAT 380, held that even for maximization of value of the assets of the Corporate Debtor, the Adjudicating Authority is not entitled to overturn the business decisions of the Corporate Debtor. Chhatisgarh Distilleries Ltd. Vs. Dushyant Dave & Ors., (Company Appeal (AT) (Ins) No.461 of 2019. Value maximization of the Corporate Debtor has to be in a time bound manner and can....
X X X X Extracts X X X X
X X X X Extracts X X X X
....have also been carried out. If the EOI by Interups is considered after another plan has received CoC approval, then statutory procedure enshrined in Section 30 of the Code will have no meaning. Such practice will be detrimental to the public interest because there will never be finality to resolution process and discouraged resolution applicants to invest time and money into submitted resolution plans. The Code provides for time bound resolution of a company and entertaining and EOI at this stage will make a mockery of the entire scheme of the Code. The Adjudicating Authority has limited jurisdiction to either approve the Resolution Plan or reject the Resolution Plan if it is not compliant with law, no more or no less. Pendency of avoidance applications does not vitiate the approved JSW Plan. Interups has contended that CA 613 (PB)/ 2019 titled Mr. Kuldeep Kumar Bassi Vs. Mr. Pradeep Aggarwal & Ors. (CA 613) which includes time exclusion had to be decided before the plan approval application. Interups reliance on Delhi High Court's Judgment dated 26.11.2020 in Venus Recruiters Private Limited Vs. Union of India & Ors. (W.P No. 8705 of 2019) ("Delhi High Court Judgment") is misp....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Counsel for the Appellant and the Respondents. As observed by this Appellate Tribunal on 17.12.2020 to initially consider the issue of maintainability of appeal and locus standi of Appellant to question the approval of Resolution Plan of Successful Resolution Applicant, we are first taking up this issue after hearing the learned Sr. counsels for the Appellant and learned Sr. Counsel for Respondent No.1 (Resolution Professional) & Respondent No. 3 (Successful Resolution Applicant) and learned counsel for the CoC on 11.02.2021 and the Written submission made by the parties. Section 61(1) authorizes "any person aggrieved by the order of Adjudicating Authority under this part" can prefer an appeal before the Appellate Tribunal. The 'part' here refers to Part -II of the Code which comprises CIRP and Liquidation Process. Here what we observed that "any person aggrieved" comprises of stakeholders in the process of CIRP and Liquidation Process. The Appellant is stranger to the CIRP till 11th June, 2020. On 12.06.2020 the Appellant for the first time expressed its interest to submit a Resolution Plan for the Asian Colours Coated Ispat Ltd, this email was marked to all CoC members (Annex....