TaxTMI 
TaxTMI 
2020 (3) TMI 1390
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.... Dhiraj Kumar, Mr. Nishant Upadhaya, Mr. Parth Chopra, Mr. Raghav Chadha, Advocates for 3-b Mr. Rishub Kapoor, Advocate For the Homebuyers: Mr. K. Datta, Mr. Vividh Tandon, Mr. Supriyo Mahapatra, Mr. Rahul Gupta, Advocates ORDER Per: Sh. B.S.V. PRAKASH KUMAR, HON'BLE ACTG. PRESIDENT This is a reference to third Member on the points of difference between two Hon'ble Members of National Company Law Tribunal, Mumbai Bench in disposing of MA 1785/2019, MA 1770/2019 & MA 1750/2019. The points of difference are as follows:- 2. In MA 1785/2019, one of the Resolution Plan Applicants namely SSG Group has assailed the decision of the RP for not short listing its Resolution Plan despite its plan is in compliance with Section 30(2) of the Insolvency and Bankruptcy Code, 2016 (for brevity 'Code') and the decision of RP for short listing and approving the CarVal's Resolution Plan as successful Resolution Plan. B) MA 1770/2019 3. In MA 1770/2019, one of the Operational Creditors namely Noble Resources International Pte Limited (in short Noble), having more than 10% of the total debt payable by the Corporate Debtor, assailed the approval of CarVal Resolution Plan dated 19.04.2019 by the Co....
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....ntimated to them, therefore intimation of the same to SSG cannot be construed as devoid of reasons because it has been categorically mentioned that SSG Group plan has not been shortlisted for the next stage of process pursuant to comparative evaluation of the quantitative and qualitative terms of SSG Resolution Plan compared to the plan submitted by CarVal, - SSG Group was given several opportunities to revise its bid in the first round, when SSG failed in revising its plan to the satisfaction the CoC, the CoC has rightly reissued RFRP so as to invite fresh bids hoping that new bidders would participate in the bidding process, - Incidentally CarVal Group has for the first time participated and submitted better plan showing a quantum jump of more than Rs.1000Crore to the earlier plan submitted by SSG Group, of course soon after CarVal filed its plan with a quantum jump over the earlier plans, SSG Group had for the first time increased to match the plan given by the CarVal Group. But that increase also could not match with the plan submitted by Carval. When SSG plan after revision also, has remained inferior to the CarVal plan, the CoC has rightly short listed CarVal plan and rig....
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....both Hon'ble Judicial Member and Hon'ble Technical Member, submissions made by both the parties and in the light of the legal provisions of the Code, I am of the view that the learned Technical Member has rightly decided with reasons that non-short listing SSG plan and short listing CarVal plan is in accordance with law. Therefore, I hereby agree with the findings given by the learned Technical Member. To say that I agree with the order of the learned Technical Member, I need not reiterate the reasoning given by the learned Technical Member in dismissing the applications. 10. I hereby further hold that it is not the case of SSG group that the plan presented by them before the CoC on 28.03.2019 is superior to Carval Plan. The only case they canvass is, after their plan not being shortlisted on 29.03.2019, for they have on 16.04.2019 provided another plan far superior to Carval Plan shortlisted on 29.03.2019, which is before approval of Carval Plan on 21.04.2019, their plan subsequently filed being superior, they say, should have been considered and approved instead of approving the Carval Plan. 11. This point has no merit, because by that time, Carval Plan was shortlisted and SSG ....
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....ithin the time stipulated, it was issued. That cannot be questioned by a Resolution Applicant on the ground that he should be given another chance to revise its plan. 15. The point to be seen is, as to whether the economic interest of this Applicant is getting prejudiced because his plan has not been admitted. It is not the case of SSG group. It has no legal right over the assets of the Corporate Debtor to insist upon the CoC to allow it to revise its plan until it is accepted by the CoC. If this is the approach there will not be any end for revision of the plans. In the past, though SSG Group was twice asked to revise its plan, it kept on changing figures from one slot to other slot, but whereas when CarVal Plan has come with a quantum jump of Rs.1000cr over and above the earlier plan of SSG against first RFRP. Against second RFRP, SSG came out with a plan increasing its plan value, but that is also not superior to the plan of Carval. 16. Once plan is shortlisted, if at all any remedy is assumed to be present, it is only with regard to the procedure, as to the procedure is concerned, in Regulation 39 of the CIRP Regulations it has been categorically mentioned that the Committee ....
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....in the CoC meeting and asking about SSG plan by some CoC Members having minority voting in the CoC cannot become a reason to invalidate the plan approved. Moreover, none of the CoC Members who abstained to the voting of CoC have filed any objection before this Bench. The point to be noted, these Applicants have not stated that D & P Report is factually incorrect. 19. In view of the same, the objection raised by SSG over not short listing its plan is unsustainable. Once plans are submitted, it is the CoC to take a decision thereafter it is only an intimation to the plan Applicants as to whether their plan is shortlisted or not, it is nowhere mentioned in the Code that Plan Applicants have right to participate in short listing the plan applications. Learned Technical Member has already held in its order that the Committee of Creditors has to record its deliberations on the feasibility and viability of the plans. It has recorded that CarVal plan is feasible and viable for the reasons mentioned there. Notwithstanding the fact that there is no provision of assigning reasons for not short listing; the CoC through its RP has categorically mentioned that the Resolution Plan of SSG is comp....
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....approval of CoC is imperative, for which meeting is essential for those approvals as envisaged in section 28 of the Code. As per record, 13th CoC meeting was held on 9th April, 2019, 14th CoC meeting was held on 17th April 2019 and 15th CoC meeting was held on 21st April 2019. It is the case of Noble, CoC recorded in its 13th meeting dated 9.4.2019 about short listing Carval Plan, Noble, itself stated that RP on 4th of April 2019 supplied Carval and SSG Resolution Plans to Noble, therefore it could not be said that material papers were not provided to Noble before the meeting dated 9.4.2019. It is a known practice minutes of meeting will be circulated post meeting because there could not be minutes unless meeting is held. It is not the case of Noble that Resolution Plan was not supplied to it and it is not the case of Noble that evaluation matrix was not provided to the Operational Creditor. Noble only complains that evaluation matrix and other details certified by Delph and Phelps (D&P) have not been provided to it. Moreover the money i.e. coming into the Company is not even sufficient to the Financial Creditors. Though 2-3 Financial Creditors who are Members of CoC abstained to t....