TaxTMI 
TaxTMI 
2021 (12) TMI 911
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....for R2. Ms. Radhika Bishwajit Dubey, Advocate for R3. Mr. Krishnan Venugopal, Senior Advocate with Mr. Abhishek Anand, Mr. Kunal Godhwani, Advocates for R6. Ms. Pooja Mahajan, Ms. Mahima Singh, Mr. Gaurav Arora, Ms. Srishti Kapoor, Advocates for R1. Mr. Sajan Poovayya and Mr. K. Datta, Senior Advocates with Mr. Pramod Gupta, Mr. Hardeep Sachdeva, Mr. Ravi Bhasin, Mr. Kamal Shankar, Mr. Parag Maini, Mr. Raghav Chadha, Advocates for R2. Ms. Radhika Bishwajit Dubey, Advocate for R3. Mr. Abhijeet Sinha, Mr. Milan Singh Negi, Advocates for R7 JUDGMENT Ashok Bhushan, J. 1. These two Appeals have been filed against the impugned orders passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi, Court-IV dated 25.11.2021 passed in I.A No. 4918/ND/2021 in Company Petition No. (IB) 1689/ND/2018 read with order dated 01.10.2021. Corporate Insolvency Resolution Process (CIRP) was initiated against the Corporate Debtor- 'Dignity Buildcon Pvt. Ltd.' by order dated 24.04.2019 of the Adjudicating Authority. The Respondent No.1 was appointed as Resolution Professional. Resolution Professional notified the publication of Form-G on 01.07.2019. 16 Expression of Interest....
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.... Alchemist Assets Reconstruction Company Ltd. 35.36 - 35.36 - 35.36 - 35.36 - 35.36 3. BREP Asia Rainbow Holding (NQ) Pte. Ltd. 10.13 10.13 - - 10.13 - 10.13 - 10.13 4. BREP Asia SBS Rainbow Holding (NQ) Ltd. 0.02 0.02 - - 0.02 - 0.02 - 0.02 5. BREP VIII SBS Rainbow Holding (NQ) Ltd. 0.01 0.01 - - 0.01 - 0.01 - 0.01 6. Addon Realty Private Limited 0.24 0.24 - 0.24 - 0.24 - - 0.24 7. Logos Holding Company Private Limited 4.14 4.14 - 4.14 - 4.14 - - 4.14 8. Rapid Buildwell Limited 0.27 0.27 - 0.27 - 0.27 - - 0.27 Voting Share % 100.00 64.64 35.36 4.65 95.35 4.65 95.35 0.0 100.00 3. The Appellant has voting share of 35.36%, although the Appellant's voting share was not sufficient enough to get any plan approved but its voting share wa....
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....ir plan or refer to any proceeding conducted by CoC. Learned Counsel for the other Resolution Applicant Alchemist Assets Reconstruction Company (one of the CoC member) states that Resolution Plan submitted by Alchemist Assets Reconstruction Company is withdrawn in terms of the said statement. Hence prayer "a" of this application becomes infructuous. With respect to prayer "b" we have given direction to RP and CoC. Application stands disposed of in terms of above order". 4. After order dated 01.10.2021 of the Adjudicating Authority, 54th meeting of the CoC was held on 07.10.2021 where CoC noticed that in the meantime, two Prospective Resolution Applicants i.e. 'Sattva' and 'M3M' has sent e-mail expressing their intend to withdraw and praying to return their BBG. BBG of INR 20 Crores was returned to those two Prospective Resolution Applicants. Noticing the aforesaid facts, the CoC requested the Resolution Professional to approach all four Resolution Applicants and seek confirmation whether they are interested to participate again in the process. It is useful to extract following deliberation of the CoC on 07.10.2021:- "During the meeting, the representative of SC....
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....took note of the same." 5. Resolution Professional filed an I.A. No. 4918/2021 seeking clarification of earlier order dated 01.10.2021. In the Application, Resolution Professional mentioned that out of four plans on which three rounds of voting took place, two Prospective Resolution Applicants i.e. 'Sattva' and 'M3M' by their respective letters dated 8th July, 2021 and 7th May, 2021 have withdrawn without prejudice to their rights under applicable law. After the decision of the CoC dated 07.10.2021, the Resolution Professional by e-mail dated 12.10.2021 requested all the four Prospective Resolution Applicants namely- 'Sattva', 'Experion', 'MD/ AD' and 'M3M' to confirm whether they are interested in participating again in the CIRP. 'Sattva' did not respond. 'M3M' by its e-mail stated that they are interested in participation. 'Experion' informed the Resolution Professional that they should be permitted to submit the revised Resolution Plan in the event any request is received from any other Resolution Applicant. 'MD/ AD' responded that they are interested in participating in the CIRP of the Corporate Debtor. In the Application I.A. No. 4918 of 2021, following prayers were made by....
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.... 25.11.2021, 'Alchemist Asset Reconstruction Company Ltd.' as well as 'Madhav Dhir' has filed these two Appeals. 8. We have heard Shri Abhijeet Sinha, Learned Counsel for 'Alchemist Asset Reconstruction Company Ltd.', Shri Krishnan Venugopal, Learned Senior Counsel for 'Madhav Dhir', Ms. Pooja Mahajan, Learned Counsel for the 'Resolution Professional' and Mr. Sajan Poovayya and Mr. K. Datta, Learned Senior Counsel for 'Experion'. 9. Shri Abhijeet Sinha, Learned Counsel for the Appellant- 'Alchemist Asset Reconstruction Company Ltd.' submits that the order dated 25.11.2021 is review of earlier order dated 01.10.2021. It is submitted that by earlier order dated 01.10.2021, two plans which were pending were directed to be voted. It is submitted that the two plans which are alive and pending is the plan of 'Experion' and the plan of 'MD/ AD'. Now by order dated 25.11.2021, the said order has been reviewed. The Adjudicating Authority has directed that the two plans which received 64.64% voting share should be put to vote. It is submitted that 64.64% vote was secured only by 'Sattva'. 'Sattva' having withdrawn, virtually now there are no two plans to put for voting. It is submitted....
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....el appearing for 'Experion' submitted that it is 'Experion' which has submitted the best plan but due to adamant attitude taken by the Appellant- 'Alchemist Asset Reconstruction Company Ltd.'. 'Experion's plan could not get the requisite vote. It is submitted that the Appellant- 'Alchemist Asset Reconstruction Company Ltd.' was the person who has a conflict of interest it having itself submitted a plan and further it was only interested in the plan submitted by Madhav Dhir for whom it voted. Appellant- 'Alchemist Asset Reconstruction Company Ltd.' has voted against the 'Experion' although 'Experion' was the best plan to maximise the value of the Corporate Debtor but due to its vested interest Appellant did not approve the plan of 'Experion'. It is submitted that 'Experion' has already filed an Application before the Adjudicating Authority being Application No. 1342 of 2021 for excluding 'Alchemist Asset Reconstruction Company Ltd.' from voting due to obstruction created by it in CIRP of the Corporate Debtor which Application is still pending. 14. We have heard Learned Counsel for the parties and perused the record. 15. The object of CIRP is Resolution of the Corporate Debtor.....
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....here as per direction of the Adjudicating Authority only re-voting has to be conducted to find out as to whether any Resolution Plan could get requisite number of votes failing which liquidation order is to be passed for which Application has already been submitted by the Resolution Professional which is pending consideration before the Adjudicating Authority and the Adjudicating Authority has deferred the consideration of liquidation Application only due to the fact that it had directed for fresh voting. 18. We have noticed that although Adjudicating Authority on 01.10.2021 directed consideration of only two plans which were pending i.e. which were alive. From the facts brought on record, it is clear that on 01.10.2021 only two plans were alive i.e. 'Experion' and 'MD/AD'. Prior to 01.10.2021, plans of 'Sattva' and 'M3M' had already been withdrawn and their BBG returned. We also noticed that the CoC in its meeting dated 07.10.2021 decided to approach all four Resolution Applicants and the Resolution Professional did issue e-mail dated 12.10.2021 to all four Resolution Applicants asking their willingness to participate. After 25.11.2021 order, voting again took place in 2nd week....