TaxTMI 
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2022 (2) TMI 17
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...., Sahukara Prakash, Ayikomath Balagopal, Vinay Pradhan, Narsinga Vivekananda Rao, Subbarayudu Daggubati, Venkata Vinayaka Sista, Sanjay Subramanian, Shobhit Arora, Bhagat Singh Tomar, Shamsunder R Deshkulkarni Versus Monitoring Committee through Mr. Ashish Chhawchharia, Jet Airways (India) Limited, Successful Resolution Consortium of Mr. Murari Lal Jalan, Shri Ashish Chhawchharia [Justice Ashok Bhushan] Chairperson And [Dr. Ashok Kumar Mishra] Member (Technical) For the Appellant : Mr. Nikhil Nayyar, Sr. Advocate with Ms. S. Manjula Devi, Advocate Dr. KS Ravichandran (CS) For the Respondents : Mr. Arun Kathpalia, Sr. Advocate with Mr. Malhar Zatakia, Mr. Nishant Upadhyay, Mr. Madhur Arora, Mr. Dhiraj Kumar Totala and Ms. Tanya Chib, Advocates (R-1, 3)Ms. Isha Malik, Ms. Niharika Shukla and Mr. Raunak Dhillon, Advocates (R-2) Ms. Pooja Mahajan, Mr. Aashish Vats, Mr. Arveera Sharma, and Ms. Mahima Singh, Advocates (R-4) JUDGMENT ASHOK BHUSHAN, J. We have heard learned Counsel for the parties on 10.01.2022 on the limited question whether the Appellant(s)/ Applicant is entitled to be given a copy of Resolution Plan or any part of the Resolution Plan in the Appeal. In the Applicat....
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....scussion of compliance of Section 30, sub-section (2) and Regulation 37 and 38 and to effectively support the grounds taken in the Appeal, the Appellant is entitled for copy of Resolution Plan. 6. Learned Counsel appearing for Respondent No.4, Ms. Pooja Mahajan has refuted the submissions of the learned Counsel for the Appellant. It is submitted that Resolution Plan is a confidential document and contains confidential information about the Corporate Debtor and the Successful Resolution Applicant, which are not available in the public domain. No information or material of the Resolution Plan can be disclosed in part or in whole to any person without the prior consent of the Resolution Applicant. Further, the requirement of law is to share copy of the Resolution Plan only with the Members and participants in the Committee of Creditors (CoC). The Appellant Association being not entitled to participate in the CoC cannot claim copy of Resolution Plan. She further submits that various other workmen/ employees' associations have filed applications before Adjudicating Authority praying for copy of the Resolution Plan, which was rejected by Adjudicating Authority on 22nd February, 2021. It....
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.... Act, is the competent Authority under the RTI Act and therefore, the same cannot be adjudicated by this Tribunal. The Resolution Plan as approved includes five-year business plan and cash projections from the business as calculated and projected by the Successful Resolution Applicant for the revival of the Corporate Debtor. The business plan and financial plan of the Successful Resolution Applicant is a strictly confidential document and any disclosure of the same to any person including the Operational Creditors of the Corporate Debtor would lead the passing of such confidential data to the competitors of the Corporate Debtor and the Successful Resolution Applicant, which could be detrimental to the business and revival of the Corporate Debtor by the Successful Resolution Applicant. 7. Shri Arun Kathpalia, learned Senior Counsel appearing for Resolution Professional also supported the submissions of learned Counsel for the Successful Resolution Applicant. He further submits that details regarding claim allowed to the workmen and employees have already been communicated to the claimants and if directed, Resolution Professional shall provide relevant part of the Resolution Plan de....
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....rotect any intellectual property of the corporate debtor it may have access to; and (c) not to share relevant information with third parties unless clauses (a) and (b) of this sub-section are complied with. Explanation. - For the purposes of this section, "relevant information" means the information required by the resolution applicant to make the resolution plan for the corporate debtor, which shall include the financial position of the corporate debtor, all information related to disputes by or against the corporate debtor and any other matter pertaining to the corporate debtor as may be specified." 12. Section 29, sub-section 2 sub-clause (a) provides that Resolution Applicant is to comply with provisions of law for the time being in force relating to confidentiality and insider trading and further the Resolution Applicant not to share relevant information with third parties unless clauses (a) and (b) of sub-section (2) of Section 29 are complied with. 13. After Resolution Plan is submitted the same is to be scrutinized by Resolution Professional and Resolution Professional is to examine each Resolution Plan and when Resolution Professional is satisfied that it complies wi....
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....th Regulation 21 (3) (iii) of Process Regulation 2016, makes it clear that all Members, who were to participate in the meeting of the Committee of Creditors had to be provided copies of all relevant documents. Thus, the entitlement of copy of documents during the CIRP is for only those who are to participate in CIRP. As per Section 24 of the Code, Operational Creditors or their representatives, if the amount of their aggregate dues is not less than 10% of the debt, are also entitled for notice of meeting of Committee of Creditors. Thus, the category of creditors including the Members of the suspended Board of Directors or the partners of the corporate persons, who are entitled to participate in the meeting of the Committee of Creditors are entitled to receive copies of all documents. 18. Hon'ble Apex Court had occasion to consider these provisions of Code and the Regulations in context of right to have access to Resolution Plan by erstwhile/ suspended Board of Directors of the Corporate Debtor in (2019) 20 SCC 455 - Vijay Kumar Jain vs. Standard Chartered Bank and Ors. The Hon'ble Supreme Court held that Members of suspended Board are entitled to participate in the meeting of Comm....
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....al' one and it cannot be disclosed to any 'Competing' 'Resolution Applicant' nor any view can be taken or objection can be asked for from other 'Resolution Applicants' in regard to one or the other 'Resolution Plan'. It cannot be lost sight of that the conduct of 'Resolution Professional' is important in deciding whether he is guilty of 'Misfeasance' or 'Fraud' or any other 'Serious Irregularity' in the preparation of 'Resolution Plan'. As a matter of fact, the 'Resolution Plan' 'is confidential in nature'. No wonder, the Resolution Professional is to act in an expeditious fashion. In short, an 'Insolvency Professional' is to perform his duties by facing challenges that he come across during CIRP." 20. The above proposition laid down by this Tribunal clearly states that Resolution Plan furnished by one or other Resolution Applicant is a confidential one and cannot be disclosed to any competing Resolution Applicant. The Resolution Plan has been held to be confidential in nature. The above observations were in reference to CIRP proceeding and this Tribunal in the above case had no occasion to consider the situation where Appellant who is aggrieved by the order of the Adjudicating Au....
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....of the proceedings before the Adjudicating Authority. Section 117 of the NCLT Rules, 2016 deals with 'Mode of inspection'. Sub-rule (3) of Rule 117 provides that note of any record can also be taken in pencil by a person inspecting the record. 23. Our above conclusion also fully finds support by provision of Section 31, sub-section (3) of IB Code, which provides that Resolution Professional after approval of Resolution Plan shall forward all records relating to the conduct of the corporate insolvency resolution process and the resolution plan to the Board to be recorded on its database. 24. Learned Counsel for Respondent No.4 in the context of Section 31, sub-section (3) submits that records are forwarded to the Board not for publication and limited purpose of the Board is to publish such information, data, research studies and other information as may be specified by Regulations. Reference has been made to Section 196(1)(i) of the IB Code, which is to the following effect: "196(1)(i) publish such information, data, research studies and other information as may be specified by regulations;" 25. Section 196, sub-section (1) deals with 'Powers and functions of the Board'. Sub-cl....