TaxTMI 
TaxTMI 
2021 (9) TMI 1272
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....as allowed by the 'Adjudicating Authority'. 2. The 'Adjudicating Authority' (National Company Law Tribunal, Chandigarh Bench, Chandigarh) while passing the impugned order in I.A. 412 of 2020 in CP (IB) No.117/Chd/CHD/2017(filed by the Resolution Professional) at paragraph Nos.10 to 17 had observed the following: 10. "Prescribed period for filing application - In the present case.....the application under Section 9 of the Insolvency and Bankruptcy Code, 2016 was admitted on 02.02.2018 and the present application is filed by the Resolution Professional on 25.08.2020. The period of 180 days would be completed on 30.10.2018. The period of 180 days would be completed on 30.10.2018. As per order dated 31.10.2019, RP has been directed to place the revised resolution plan before CoC and further directed to complete the process within 90 days. RP has also filed an application seeking additional time for concluding the CIRP process. However, during the pendency, the Resolution Applicant has withdrawn the resolution plan and the application for extension has been frustrated. Hence, no resolution has been passed by CoC and the present application has been filed under Section 13(1)(a) on 21.....
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....ng CA No. 1077/2020 dated 20.11.2019 seeking additional time for completion of CIRP with certain other reliefs is pending before this Tribunal. In the instant IA, the applicant also seeks liberty for withdrawal of CA No. 1077/2019 has Resolution Applicant has withdrawn its resolution Plan. 17. In view of the satisfaction of the conditions provided under Section 33(1)(A) of the Code, the corporate debtor Best Foods Limited is directed to be liquidated in the manner as laid down in Chapter III of the Code. Some of the directions are noted as under:- (i) That as per Section 33(5) of the Code and subject to Section 52 of the Code, no suit or other legal proceedings shall be instituted against the corporate debtor. Provided that a suit or other legal proceedings may be instituted by the liquidator on behalf of the corporate debtor, with the prior approval of the Adjudicating Authority. (ii) That the provisions of sub-section (5) of Section 33 of the Code shall not apply to legal proceedings in relation to such transactions as may be notified by the Central Government in consultation with any financial sector regulator; and (iii) That this order of liquidation under Section 33 ....
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....e said Application was admitted on 02.02.2018 for initiating the 'Corporate Insolvency Resolution Process' (CIRP) of the 'Corporate Debtor' etc. Also that Mr. Atul Kumar Kansal was appointed as the 'Interim Resolution Professional' for the 'Corporate Debtor'. 5. It comes to be known that the 'Interim Resolution Professional' of the 'Corporate Debtor' had constituted the 'Committee of Creditors' (CoC) of the 'Corporate Debtor' after collating and verifying all claims received from the creditors of the 'Corporate Debtor'. Later, an Application was filed by the 'Committee of Creditors' of the 'Corporate Debtor' (under Section 22 of the 'I&B' Code). The 'Interim Resolution Professional' was replaced by Mr. Vikram Bajaj, the Respondent as 'Resolution Professional' for the 'Corporate Debtor' as per order dated 17.04.2018 passed by the 'Adjudicating Authority'. 6. The 'Resolution Professional'/ Respondent published Form G and invited 'Expression of Interest' (EOI) from the prospective Resolution Applicants by advertising the same in the Newspapers (vide publication dated 05.05.2018). On 01.08.2018, this Tribunal passed an order of extending the CIRP period by another 90 days. Later, the....
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....n Plan' submitted by the 'Resolution Applicant'/ Respondent prima-facie appears to be in conformity with the 'I&B' Code, 2016 and the accompanying rules and Regulations thereunder, notwithstanding that there were certain inconsistencies that need to be sorted out by means of discussion with the 'Resolution Applicant'/ MTC, for which, the 'Resolution Applicant' was 'agreeable'. 10. Through email dated 29.10.2018, the 'Resolution Professional'/ Respondent had informed the 'Resolution Applicant'/ MTC that the 'Committee of Creditors' of the 'Corporate Debtor' was not inclined to consider the 'Revised Resolution Plan' of 'Maritime Trade Corporation', since the same was 'not found feasible' and further the time period for 'Corporate Insolvency Resolution Process' of the 'Corporate Debtor' was almost over, there was no time left in the 'Resolution Process' of the 'Corporate Debtor' to entertain any further 'repetition of a process'. 11. The stand of the Appellant is that the 'Resolution Plan' of the 'Resolution Applicant' - 'Maritime Trade Corporation' was not put before the 'Committee of Creditors' of the 'Corporate Debtor' although inconsistencies in the Resolution in regard to the n....
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....on of the 'Corporate Debtor' was passed at the meeting of the 'Committee of Creditors' dated 15.11.2019. 15. With a view to complete the 'Corporate Insolvency Resolution Process' and pending vote of the State Bank of India on the Resolution Plan on 20.11.2019 the 'Resolution Professional'/ Respondent preferred an Application in CA No.1077 of 2019 before the 'Adjudicating Authority' praying for an additional time of 75 days for completion of the 'Corporate Insolvency Resolution Process' of the 'Corporate Debtor' and to permit the 'Committee of Creditors' of the 'Corporate Debtor' to abstain from voting viz the State Bank of India to submit their vote on approval of the 'Resolution Plan' on liquidation of the 'Corporate Debtor' as the case may be. 16. The State Bank of India (one of the 'Financial Creditors' of the 'Corporate Debtor') with a voting share of 53.87% through email dated 07.02.2020 had informed the 'Resolution Professional'/ Respondent that the proposal for approval of the 'Resolution Plan' was approved by the State Bank of India. In this connection it is pertinently pointed out that on 13.02.2020, during the hearing of CA 1077 of 2020 in CP (IB) No.117/Chd/CHD/2017 th....
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....directing the Liquidator to take steps for liquidation of the 'Corporate Debtor' as per Regulation 32(A) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulation, 2016 (Liquidation Regulations). 21. It is the plea of the Appellant that the 'Adjudicating Authority' had committed an error in directing the Liquidator to take steps as per Regulation 32(A) of the Liquidation Resolutions without directing the Liquidator to take appropriate steps as per Regulation 2B and the judgment of this Tribunal in Y. Sivaram Prasad vs. S. Dhanapal & Ors. Vide Co. Appl (AT) (Ins) No.224 of 2018 in which the Liquidator is directed to first call for schemes of compromise and arrangement under Section 230 of the Companies Act, 2013 at the stage of liquidation proceedings of the 'Corporate Debtor' before the sale of 'Assets' of the 'Corporate Debtor' 'collectively' or on a standalone basis in order to keep the 'Corporate Debtor' as a 'going concern' even during the period when the 'Corporate Debtor' is undergoing liquidation proceedings. Appellant's Submissions 22. The Learned Counsel for the Appellant submits that the impugned order dated 01.03.2020 passed by the 'Adjudicating....
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....nal was upheld by the Hon'ble Supreme Court of India (vide Civil Appeal 3434-3436 of 2019 order dated 15.04.2019) wherein it was observed and held that the 'Committee of Creditors' is empowered to change its decisions on Rejection/ Abstention of 'Resolution Plan'. 27. The Learned Counsel for the Appellant projects an argument that the 'Adjudicating Authority' while passing the impugned order in disregard to the facts and circumstances of the instant case had encroached upon the majority decision of the 'Committee of Creditors', which it does not have the power to, except for the grounds mentioned as per sub-section (a) to (e) of Section 32 of the Code. 28. The Learned Counsel for the Appellant submits that the 'Adjudicating Authority' had failed to observe in the impugned order that the 'Resolution Professional'/ Respondent had filed the application for liquidation of the 'Corporate Debtor' without securing the vote and resolution of the 'Committee of Creditors' neither on the revised Plan nor on the Liquidation of the 'Corporate Debtor', which is in breach of the necessary ingredients of the I&B Code and the directions issued by the 'Adjudicating Authority' as per order dated 31....
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....period might have been otherwise utilized in exploring possibilities of Resolution of the 'Corporate Debtor', whereas on account of the acts and commission of the Respondent/ 'Resolution Professional', the 'Corporate Debtor' was pushed into Liquidation. Appellant's Citations 32. The Learned Counsel for the Appellant seeks in aid of the judgment of this Tribunal - dated 19.03.2019 (1) Mr. Sharad Sanghi vs. Vandana Garg and others (Com. App (AT) (Ins.) 461 of 2018); (2) Ashutosh Koul and Others vs. DBS Bank Limited and others (Com. App (AT) 464 of 2018); and (3) Appollo Jyoti LLC and others vs. Jyoti Structures Ltd. Through its Resolution Professional, M/s Vandana Garg and Others (Com. App. (AT) (Ins) No.548 of 2018) reported in 2019 SCC OnLine NCLAT page 148 (at special page 7 and 8), wherein at paragraph 14 to 19, 23 to 26, it is observed as under: "14. Whether a member who has already opined, after final decision, can change its opinion or not? It is the matter which can be decided by the 'Committee of Creditors', which may extend the period and allow to have fresh voting. Regulation 26(2) being directory cannot override the power of the 'Committee of Creditors', which is the ....
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....o consideration the date when the 'Interim Resolution Professional' had joined. The order of admission having signed and uploaded on 12th July, 2017, after excluding eight days, we hold that the process was conducted within the period. Xxx xxx xxx 23. However, the aforesaid submissions cannot be accepted as at the 'Resolution Process', 'Financial Creditor' claims are decided as per provision of the 'I&B Code'. All the 'Financial Creditors' are treated to be similar, if similarly situated. 24. We have noticed that the Adjudicating Authority has made certain observations with regard to the timeline given by the 'Resolution Applicant'. Learned counsel appearing on behalf of the 'Resolution Applicant' submits that the total period of 15 years will be reduced to 12 years. 25. In view of the aforesaid findings and as we have already held that the 'Resolution Process' took place within 270 days and the 'Committee of Creditors' had the jurisdiction to change its opinion in favour of the 'Resolution Plan' to make it a success and Regulation 26(2) being directory which also stands deleted, we set aside the impugned order and hold that the 'Resolution Plan' being in conformity with Se....
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....the considered view, that in view of the paramount importance given to the decision of CoC, which is to be taken on the basis of 'commercial wisdom', NCLAT was not correct in law in interfering with the commercial decision taken by CoC by a thumping majority of 84.36%. 158. It is further to be noted, that after the resolution plan of Kalpraj was approved by NCLT on 28.11.2019, Kalpraj had begun implementing the resolution plan. NCLAT had heard the appeals on 27.2.2020 and reserved the same for orders. It is not in dispute, that there was no stay granted by NCLAT, while reserving the matters for orders. After a gap of five months and eight days, NCLAT passed the final order on 5.8.2020. It could thus be seen, that for a long period, there was no restraint on implementation of the resolution plan of Kalpraj, which was duly approved by NCLT. It is the case of Kalpraj, RP, CoC and Deutsche Bank, that during the said period, various steps have been taken by Kalpraj by spending a huge amount for implementation of the plan. No doubt, this is sought to be disputed by KIAL. However, we do not find it necessary to go into that aspect of the matter in light of our conclusion, that NCLAT a....
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....unds of negotiations and revisions between the Resolution Applicant and the CoC, before it is approved by the latter and submitted to the Adjudicating Authority88. However, this statutorily-enabled room for commercial negotiation is not enough to over-power the other elements of regulation that detract from the view that 88 "(3) The committee shall evaluate the resolution plans received under sub-regulation (1) strictly as per the evaluation matrix to identify the best resolution plan and may approve it with such modifications as it deems fit: Provided that the committee shall record its deliberations on the feasibility and viability of the resolution plans" PART H 112 CoC-approved Resolution Plans are contracts. CoC-approved Resolution Plans, before the approval of the Adjudicating Authority under Section 31, are a function and product of the IBC's mechanisms. Their validity, nature, legal force and content is regulated by the procedure laid down under the IBC, and not the Contract Act. The voting by the CoC also occurs only after the RP has verified the contents of the Resolution Plan and confirmed that it meets the conditions of the IBC and the regulations therein. The amended R....
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....re periodically commissioned by the parliament to review the functioning of the Code and suggest amendments. However, if the intention was to view a CoCapproved Resolution Plan as a contract, the principles of unjust enrichment would have been sufficient to address the issue and an amendment may not be considered necessary. A Resolution Applicant, as a third party partaking in the insolvency regime, seeks to acquire the business of the Corporate Debtor without the entirety of its debts, statutory liabilities and avoiding certain transactions with third parties. These benefits are a function of the coercive mechanisms of the IBC which enable a third party to acquire the assets of a Corporate Debtor without its liabilities, for a negotiated amount of the debt that is owed by the Corporate Debtor. Typically, resolution amounts envisage payment of a fraction of debt that is owed to the creditors and the business is acquired as a going concern with its employees. The Resolution Plan is drafted in a way that it is implementable in the future and brings about a quietus to the CIRP. Enabling Resolution Applicants to seek remedies that are not specified by the IBC, by seeking recourse to th....
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....te a modification to its Resolution Plan. The Court held that there was no scope for negotiations between the parties once the Resolution Plan has been approved by the CoC. Thus, contractual principles and common law remedies, which do not find a tether in the wording or the intent of the IBC, cannot be imported in the intervening period between the acceptance of the CoC and the approval by the Adjudicating Authority. Principles of contractual construction and interpretation may serve as interpretive aids, in the event of ambiguity over the terms of a Resolution Plan. However, remedies that are specific to the Contract Act cannot be applied, de hors the over-riding principles of the IBC. I Statutory framework governing the CIRP 147. The decision in Essar Steel (supra) while reiterating the rationale of the IBC for ensuring timely resolution of stressed assets as a key factor, had to defer to the principles of actus curiae neminem gravabit, i.e., no person should suffer because of the fault of the court or the delay in the procedure. In spite of this Court's precedents which otherwise strike down provisions which interfere with a litigant's fundamental right to non-arbitrary treat....
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....etion can be exercised by the Adjudicating Authority and/or Appellate Tribunal to further extend time keeping the aforesaid parameters in mind. It is only in such exceptional cases that time can be extended, the general rule being that 330 days is the outer limit within which resolution of the stressed assets of the corporate debtor must take place beyond which the corporate debtor is to be driven into liquidation." 159. The CoC has been given wide powers under the IBC. It can direct the Corporate Debtor into liquidation any time before the approval by the Adjudicating PART I 126 Authority, under Section 33(2) of the IBC. Further, under Section 12A of the IBC the Adjudicating Authority may allow withdrawal of the application submitted under Sections 7, 9 or 10 of the IBC for initiation of the CIRP (i.e., initiation of the CIRP by the financial creditor, operational creditor and the corporate applicant, respectively) if the withdrawal is approved by ninety per cent of the voting share of the CoC. Dealing with the question whether a successful Resolution Applicant can retreat through the route provided under Section 12A of the IBC, a threejudge Bench of this Court in Maharashtra Se....
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....cant barriers to securing a hearing. An Ordinance was swiftly promulgated on 5 June 2020 which imposed a temporary suspension of initiation of CIRP under Sections PART J 143 7, 9 and 10 of the IBC for defaults arising for six months from 25 March 2020 (extendable by one year). This was followed by an amendment through the IBC (Second Amendment) Act 2020 on 23 September 2020 which provided for a carve-out for the purpose of defaults arising during the suspended period. The delays on account of the lockdown were also mitigated by the IBBI (Insolvency Resolution Process for Corporate Persons) (Third Amendment) Regulations 2020, which inserted Regulation 40C on 20 April 2020, with effect from 29 March 2020, and excluded such delays for the purposes of adherence to the otherwise strict timeline. Recently, the IBC (Amendment) Ordinance 2021 was promulgated with effect from 04 April 2021 providing certain directions to preserve businesses of MSMEs and a fast-track insolvency process. There has been a clamor on behalf of successful Resolution Applicants who no longer wish to abide by the terms of their submitted Resolution Plans that are pending approval under Section 31, on account of the....
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.... that may propose amendments and the time at which the plan may be amended, including between submission and approval, approval and confirmation, after confirmation and during implementation, where the proceedings remain open." of the UNCITRAL Guide, supra note 56 109 Ibid. 110 IV. A. 66, page 230 of the UNCITRAL Guide, supra note 56 111 Recommendation 156: "The insolvency law should establish the mechanism for approval of amendments to a plan that has been approved by creditors. That mechanism should require notice to be given to the creditors and other parties affected by the proposed modification; specify the party required to give notice; require the approval of creditors and other parties affected by the modification; and require the rules for confirmation (where confirmation is required) to be satisfied. The insolvency law should also specify the consequences of failure to secure approval of proposed amendments.", UNCITRAL Guide, supra note 56 112 3.3.1, supra note 55 PART J 145 Resolution Plan at that stage. At the same time, the Corporate Debtor and the CoC have been empowered to withdraw from the CIRP. If it intended to permit parties to amend the Resolution Plan after sub....
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....r submission of a Resolution Plan to the Adjudicating Authority, which would possibly be in contemplation if the Resolution Applicant was permitted to withdraw from, or modify, the Plan after acceptance by the CoC. Regulation 36B(4A) requires the furnishing of a performance security which will be forfeited if a Resolution Applicant fails to implement the Plan. This is collected before the Adjudicating Authority approves the Plan. Notably, the regulations also direct forfeiture of the performance security in case the Resolution Applicant "contributes to the failure of implementation", which could potentially include any attempts at withdrawal of the Plan. 177. The binding nature, as between the CoC and the successful Resolution Applicant, of the Resolution Plan submitted for approval by the Adjudicating Authority is further evidenced from the fact that the CoC issues a LOI to a successful Resolution Applicant stating that it has been selected as the successful Resolution Applicant and its Plan would be submitted to the Adjudicating Authority for its approval. The successful Resolution Applicant is typically required to accept the LOI unconditionally and submit a PBG. Sequentially,....
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....o an end after the CoC's approval. The only PART J 150 conditionality that remains is the approval of the Adjudicating Authority, which has a limited jurisdiction to confirm or deny the legal validity of the Resolution Plan in terms of Section 30 (2) of the IBC. If the requirements of Section 30(2) are satisfied, the Adjudicating Authority shall confirm the Plan approved by the CoC under Section 31(1) of the IBC. 179. If the appellants' claim were to succeed, a clause enabling a Resolution Applicant to withdraw/seek modification for reasons such as a 'Material Adverse Event' could also be set up by a Resolution Applicant when it is being prosecuted under Section 74 (3). It was contended before us that Form H, which is a compliance certificate that is to be submitted by the RP to the Adjudicating Authority along with the Resolution Plan, mentions that the RP can enter details as to whether the Resolution Plan is subject to any conditionalities under Clause 12. Thus, the argument goes that this permits the Resolution Applicant to stipulate in the Resolution Plan certain contingencies under which it can withdraw the Plan, for instance if there is an occurrence of an 'Material Advers....
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...., based on terms of its own Resolution Plan". Respondent's Contentions 35. In response, the Learned Counsel for the Respondent submits that the Appellant is misrepresenting that the 'Committee of Creditors' had approved a 'Resolution Plan' and in fact, no 'Resolution Plan' was approved by the 'Committee of Creditors' within the 'Corporate Insolvency Resolution' period which came to an end on 15.11.2019. Apart from this, I.A. No. 1077/2019 for an extension of 'CIRP' period was 'Sub-Judice' when 'Sole Resolution Applicant' withdrew his 'Resolution Plan'. Moreover, the Learned Counsel for the Respondent brings it to the notice of this 'Tribunal' that the 'Adjudicating Authority' had noted that in view of the withdrawal of the 'Resolution Plan' by the 'Sole Resolution Applicant' the grounds on which CA No.1077/2019 claiming extension of time for completion of 'CIRP' process was filed by the 'Resolution Professional' were frustrated. 36. The Learned Counsel for the Respondent points out that since the 'CIRP' period had lapsed on 15.11.2019 and no 'Resolution Plan' was approved by 15.11.2019, thus the grounds for 'Sub-Judice' application for extension were frustrated and the 'Adjudica....
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....n 12 of the 'I&B' Code, 2016 mandates that 'CIRP' of the 'Corporate Debtor' must conclude within 330 days from the 'Insolvency' commencement date. Also, it mandates that a 'CIRP' which was pending and not completed with the aforesaid period of 330 days, as on the date of commencement of the Amendment Act i.e. 16.8.2019, shall be completed within a period of 90 days from such date, i.e. by 15.11.2019. 42. The Learned Counsel for the Respondent submits that 'Corporate Insolvency Resolution Process' (CIRP) period expired on 15.11.2019 and that the 'Resolution Professional' could not convene a 'Committee of Creditors' Meeting (CoC) meeting and thereafter the CoC had become 'Functous Officio' (vide Judgement in 'Sanjay Kumar Ruia' V. 'Catholic Syrian Bank & Anr.' (Comp. App. (AT)(Ins.) 560/2018 Paragraph 17 and the judgement in 'ICICI Bank' V. 'Venkataranarao Nagarajan' (Vide Comp. App. (AT)(Ins.) 772/2018). 43. The Learned Counsel for the Respondent contends that the discussion on 'Resolution Plan' between the 'State Bank of India' and the 'Resolution Applicant' after expiry of 'CIRP' period was not through the 'Committee of Creditors' as the CoC was 'Functuous Officio', but based on....
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....aid steps which were required to be fulfilled as per 'I&B' Code and Regulations made thereunder for taking approval of the 'Committee of Creditors' and making applications u/s 30(6) of the 'I&B Code', 2016 for approval of the 'Adjudicating Authority'. 47. The Learned Counsel for the Respondent points out that the 'Resolution Applicant' is not mentioned as a proper and necessary party in the 'Appeal', while the 'Appeal' is founded on the argument on the plea that the 'Resolution Applicant' could not have withdrawn the 'Resolution Plan' even after the lapse of 'CIRP' period on 15.11.2019 because of the SBI e.mail dated 7.2.2020. As such, it is the stand of the Respondent that the instant 'Appeal' is not maintainable because of 'Non-joinder of Parties' in so far as pleadings pertain to withdrawal of 'Resolution Plan' by the 'Resolution Applicant' after the expiry of 'CIRP' period as incidental and resultant directions saddling the 'Resolution Applicant' with 'Resolution Plan' cannot be issued without hearing the Applicant. 48. The Learned Counsel for the Respondent contends that the 'Resolution Plan' was not binding on the 'Resolution Applicant' after 15.11.2019 in view of the rejec....
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....f Hon'ble Supreme Court in the matter of 'Committee of Creditors of Essar Steel Ltd. through Authorised Signatory V. Satish Kumar Gupta & Ors.' reported in 2020 8 SCC 531 wherein it is observed and held that while leaving the provision otherwise intact, the term 'Mandatorily' is struck down as being manifestly arbitrarily under 'Article 14 of the Constitution of India' and as being unreasonable restriction on the Litigant's right to carry on business under 'Article 19(1)(g) of the Constitution' and contends that the effect of this declaration is that ordinarily the time taken in relation to 'CIRP' must be completed within the outer limit of 330 days from the Insolvency commencement date including extensions and the time taken in legal proceedings. If the delay or large part thereof is attributable to the process of 'Adjudicating Authority' and/or the NCLAT itself, it may be open in such cases for the 'Adjudicating Authority' and / or NCLAT to extend the time beyond 330 days. It is only in exceptional cases that time can be extended, the general Rule being that 330 days is the outer limit within which the 'Resolution of the Stressed Assets of the Corporate Debtor' must take place be....
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..... 'Kotak Investment Advisors Ltd. & Anr.' (Vide Judgement in Civil Appeal No. 2943-2944 of 2020 dated 10.03.2021). Appraisal 57. It transpires that M/s. 'Hajura Singh Bhim Singh' had filed an application for petition as per Section 9 of the 'I&B' Code to initiate 'CIRP' against M/s. 'Best Foods Ltd.' (Corporate Debtor), which came to be admitted on 02.02.2018 and an 'Interim Resolution Professional' 'Mr. Atul Kumar Kansal' was appointed and later on 17.04.2008 through an order the said 'Interim Resolution Professional' was changed and one Mr. Vikram Bajaj came to be appointed as 'Resolution Professional'. 58. In fact, the 'Resolution Professional' of the 'Corporate Debtor' (M/s. Best Foods Ltd.) projected an 'Interlocutory Application' No. 412/2020(as per Section 33(1)(a) of the 'I&B' Code praying for passing an order of Liquidation in the matter of M/s Best Foods Ltd. ('Corporate Debtor'). 59. It is the plea of the Appellant that the 'Adjudicating Authority' while passing the impugned order on 01.03.2021 passed by the Adjudicating Authority initiating liquidation of the 'Corporate Debtor' (M/s Best Foods Ltd.) based on the I.A. 412/2020 filed by the formal 'Resolution Professi....
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....after applying its commercial wisdom had approved the Resolution Plan of the Resolution Applicant considering the viability and feasibility of the Resolution Plan. Therefore, it is a forceful stand of the Appellant that if a Resolution Plan was approved by the majority of the Committee of Creditors at a particular point of time, the same is not to be allowed to be withdrawn by the Resolution Applicant. 64. The other prime stand of the Appellant is that the Respondent / Liquidator filed IA 412/2020 before the 'Adjudicating Authority' praying for the liquidation of Corporate Debtor without securing the vote and resolution of the Committee of Creditors. 65. It is the version of the Appellant that the Resolution Professional had permitted the Resolution Applicant to withdraw the Resolution Plan which had led to a substantial waste of CIRP time period from 04.10.2019 when the Resolution Plan was submitted by the Resolution Applicant for the first time till 19.03.2020 when the 'Resolution Applicant' withdrew the Resolution Plan subsequent to the approval of the 'Committee of Creditors'. 66. It is represented on behalf of the Appellant that the 'Adjudicating Authority' had erred in all....
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....gredients of Section 30 of the 'I&B' Code provides for the manner in which the Resolution Plan may be furnished by a 'Resolution Applicant'. A 'Resolution Applicant' may submit a 'Resolution Plan' to the 'Resolution Professional' who is to scrutinise the same with a view to find out that it fulfils of Section 30(2) of the Code. When the plan in issue, endorses the requirements as per Code, then it is to be projected before the 'Committee of Creditors' for its approval, in terms of the ingredients of Section 30(3) of the Code. Further, this can be approved by the 'Committee of Creditors' by a vote of not less than 66%(75% w.e.f 6.6.2018) as per Section 30(4) of the Code. Application of Judicial Mind 73. It is relevantly pointed out that if a 'Resolution Plan' is approved by the 'Committee of Creditors', the same is to be filed before the 'Adjudicating Authority' as per Section 31 of the Code and that the 'Adjudicating Authority' in such a situation is to take a decision after going through the Plan that it satisfies or does not satisfies the requirements mentioned in Section 30 and may either give a nod or reject the same as the case may be, in the teeth of the decision of Hon'ble....
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....ke appropriate decision either for approving the Resolution Plan or for reiterating its earlier decision for liquidation of the Corporate Debtor etc. Also, it was ordered by the 'Adjudicating Authority' that the entire exercise including filing of an application u/s 31 or conveying the decision of the CoC to reiterate initiation of liquidation process of the Corporate Debtor, as the case may be shall be completed within a period of 90 days from the commencement of the Insolvency and Bankruptcy Code (Amendment Act, 2019) as provided for in the third proviso to Section 12(3) of the Code. 78. In the present case, it cannot be brushed aside that the 'Committee of Creditors' had rejected the Resolution Plan in the meeting that took place on 15.11.2019. Moreover, the 'Corporate Insolvency Resolution Process' came to an end on 15.11.2019, which date 651 days rolled by from the commencement date of insolvency on 02.02.2018. 79. As a matter of fact, the Resolution Applicant, on 19.11.2019 had acknowledged the rejection of its Resolution Plan by the Committee of Creditors and had prayed for the refund of 'Earnest Money Deposit' and subsequently had requested for a deliberation / discussion....
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....on Applicant and not through the Committee of Creditors in and by which no accord/agreement was arrived at because of the fact the Resolution Applicant had not submitted the Resolution Plan incorporating the changes advised by the State Bank of India and had not accepted the terms for performance guarantee. 85. From the Respondent's point of view, a stand is taken that the 'Committee of Creditors' never approved the 'Resolution Plan', and hence there was no occasion for the issuance of 'Letter of Intent' to the Resolution Applicant / Deposit of performance security / acceptance of Letter of Intent by the Resolution Applicant and for preferring an application u/s 30(6) of the Code. 86. In the present case, it is to be borne in mind that the Resolution Applicant had acknowledged the decision of the CoC in regard to the rejection of the Resolution Plan through an email dated 19.11.2019 and claimed the refund of the 'Earnest Money Deposit'. Further, it cannot be lost sight of that the Resolution Applicant had not furnished the revised Resolution Plan including the suggested changes and instead proposed, more modifications to the commercials and term of the Resolution Plan and later w....