TaxTMI 
TaxTMI 
2021 (12) TMI 793
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....n Professional. 2. These appeals assail the judgment and order passed by the National Company Law Appellate Tribunal, New Delhi (hereinafter referred to as "the NCLAT") dated 19th October, 2020, in Company Appeal (AT) (Insolvency) Nos. 515 of 2020 and 516 of 2020, thereby allowing the appeals of the respondent No.1Panna Pragati Infrastructure Private Limited (hereinafter referred to as "PPIPL") and the respondent No.2Arihant International Limited. 3. Company Appeal (AT) (Insolvency) No.515 of 2020 was filed assailing the order dated 18th March, 2020, passed by the National Company Law Tribunal, Guwahati Bench, Guwahati (hereinafter referred to as "the NCLT"), in I.A. No.27 of 2020 in CP (IB) No.13/GB/2019, filed by PPIPL and another, by which the application seeking direction to the Resolution Professional (hereinafter referred to as "the RP") to take on record and consider its revised offer submitted by email dated 14th February, 2020, came to be rejected. 4. Company Appeal (AT) (Insolvency) No.516 of 2020 was filed assailing the order dated 18th May, 2020 passed by the NCLT, in an unnumbered I.A. filed by the RP, vide which the appellantNgaitlang Dhar's (H1 bidder) Resol....
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....cordingly, filed I.A. No. 27 of 2020 in CP(IB) No.13/GB/2019 before the NCLT, seeking a direction to the RP to take on record its revised Resolution Plan, dated 14th February, 2020. The same came to be rejected by the NCLT, vide order dated 18th March, 2020. The RP thereafter filed an unnumbered I.A. seeking approval to the Resolution Plan submitted by the appellantNgaitlang Dhar (H1 bidder). The said unnumbered I.A. was allowed by the NCLT vide order dated 18th May, 2020. Both these orders came to be challenged before the NCLAT by way of aforesaid Company Appeals by the respondent No.1PPIPL. As stated above, by the impugned judgment and order dated 19th October, 2020, the appeals were allowed. Being aggrieved thereby, the present appeals are filed before this Court. 13. We have heard Shri Mukul Rohatgi, learned Senior Counsel appearing on behalf of the appellantNgaitlang Dhar, the successful Resolution Applicant (H1 bidder) and Shri Abhijeet Sinha, learned counsel appearing on behalf of the respondent No.1PPIPL. 14. Shri Mukul Rohatgi, learned Senior Counsel appearing on behalf of Ngaitlang Dhar, the successful Resolution Applicant (H1 bidder), submitted that the entire appr....
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....ned counsel submitted that in the proceedings of the meeting of the CoC, held on 1112th February, 2020, the Director of PPIPL, had sought one or two days' time to submit its revised offer. He submitted that, however, the said time was not granted. He further submitted that the revised offer was submitted within two days and it was the duty of the RP to present its revised offer before the CoC. Having not done that and having hastily approved the plan of Ngaitlang Dhar, the NCLAT has rightly interfered with the decision of the CoC. In this respect, he relies on the judgment of this Court in the case of Pratap Technocrats (P) Ltd. and others v. Monitoring Committee of Reliance Infratel Limited and another 2021 SCC OnLine SC 569. 18. Shri Sinha further submitted that when the NCLT itself had extended the period of CIRP by another 90 days beyond 180 days vide order dated 26th February, 2020, there was no reason for the RP to have hastily accepted the bid of Ngaitlang Dhar. 19. Learned counsel appearing on behalf of the respondents - Banks (the financial creditors) also support the arguments of the learned counsel appearing on behalf of Ngaitlang Dhar. They submit that the Banks h....
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.... from PPIPL with a request to grant time for submission of rectified Resolution Plan by 3rd February, 2020. Accordingly, the rectified Resolution Plan came to be filed by PPIPL on 3rd February, 2020. In the said meeting, the CoC evaluated the Resolution Plans of all the four prospective Resolution Applicants. Paragraph 5 of the consideration of the proposed Resolution Plan of PPIPL reads thus: "5. The CoC requested PRA to improve their bid amount the PRA refused to do so unless individual score of all disclosed further for increase of the bid amount he has to discuss with BOD of the applicant" 24. It would further reveal that the CoC continued the second round of negotiation after a lunch break. It will be relevant to refer to the following excerpt of the minutes of the meeting of the CoC dated 11th February, 2020: "2. The CoC decided to invite Panna Pragati Infrastructure Pvt. Ltd. for further negotiation. The RP informed that in first round of negotiation the PRA has not revised their bid amount and informed the CoC about the brief details of plan. The PRA also want to know about the basis of score, the RP & CoC informed at this mature stage of CIRP this is n....
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....e CoC adopted Swiss Challenge open bidding method. In the said bidding process, both prospective Resolution Applicants present increased their offer. In the said open bidding process between the two prospective Resolution Applicants present, Ngaitlang Dhar was found to be the highest bidder/prospective Resolution Applicant having offered the bid of an upfront amount of Rs. 64.30 crore plus CIRP costs. The said Resolution Plan of Ngaitlang Dhar was approved unanimously by Allahabad Bank having 68.34% voting rights and the Corporation Bank having 31.66% voting rights. 26. It is thus clear that the respondent No.1PPIPL was very much aware that the CoC has decided to finalise the proceedings by 12th February, 2020. It is also clear that though PPIPL was first called upon by the CoC to enhance the bid amount, it had specifically rejected the same. It insisted on disclosing the basis of score. In the proceedings of the 5th meeting of the CoC dated 11th February, 2020, post lunch, though Ngaitlang Dhar had enhanced his bid from Rs. 63 crore to Rs. 64 crore, the representative of PPIPL subsequently came and requested for adjourning the meeting for few days. The said request was specific....
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....ective Resolution Applicants, arrived at a considerate decision of accepting the Resolution Plan of the appellantNgaitlang Dhar in its meeting held on 1112th February, 2020. 31. It is trite law that 'commercial wisdom' of the CoC has been given paramount status without any judicial intervention, for ensuring completion of the processes within the timelines prescribed by the IBC. It has been consistently held that it is not open to the Adjudicating Authority (the NCLT) or the Appellate Authority (the NCLAT) to take into consideration any other factor other than the one specified in Section 30(2) or Section 61(3) of the IBC. It has been held that the opinion expressed by the CoC after due deliberations in the meetings through voting, as per voting shares, is the collective business decision and that the decision of the CoC's 'commercial wisdom' is non20 justiciable, except on limited grounds as are available for challenge under Section 30(2) or Section 61(3) of the IBC. This position of law has been consistently reiterated in a catena of judgments of this Court, including: (i) K. Sashidhar v. Indian Overseas Bank and Others (2019) 12 SCC 150 (ii) Committee of Cre....