TaxTMI 
TaxTMI 
TaxTMI 
2022 (4) TMI 208
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....es for R-2. JUDGEMENT ( Per : Shreesha Merla, Member (T) ) 1. Aggrieved by the Impugned Order dated 19/10/2020 in CA No. 1393 of 2019 in C.P. (IB) No. 50(PB)/2018 passed by the Learned Adjudicating Authority (National Company Law Tribunal, New Delhi, Principal Bench), M/s. Berger Becker Coatings Pvt. Ltd.', preferred this Appeal under Section 61(3) of the Insolvency and Bankruptcy Code, 2016, (hereinafter referred to as 'The Code'). By the Impugned Order, the Adjudicating Authority has allowed the Application filed by the Resolution Professional (RP) under Section 31 of the Code, seeking approval of the Resolution Plan. 2. It is the case of the Appellant that suitable protection be accorded to the 'Operational Creditors' keeping in view....
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....lders or maximise the value of assets of a corporate debtor if it becomes impossible to continue running its business as a going concern. Thus, it is clear that when the Committee of Creditors exercises its commercial wisdom to arrive at a business decision to revive the corporate debtor, it must necessarily take into account these key features of the Code before it arrives at a commercial decision to pay off the dues of financial and operational creditors. There is no doubt whatsoever that the ultimate discretion of what to pay and how much to pay each class or subclass of creditors is with the Committee of Creditors, but, the decision of such Committee must reflect the fact that it has taken into account maximising the value of the assets....
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....st then pass the resolution plan, other things being equal." 3. Learned Counsel contended that though the commercial wisdom of the CoC is to be relied upon, however, it is also to be seen whether the interest of the 'Operational Creditors' is protected. It is their main case that the Appellant has been given a meagre 4.48% of the total admitted 'Claim' whereas the direct 'Financial Creditors' a distinct class were paid Rs. 15050Crs./-. 4. The provision made in the Resolution Plan with respect to stakeholders is detailed as hereunder: S. No. Category of Stakeholder Amount Admitted (Crs in Rs. ) Amount provided (Crs in Rs. ) Percentage (%) 1. Secured Financial Creditors 4864.40 1499.99* 30.84% Unsecured Financial Creditor....
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....thority (NCLT) nor the appellate authority (NCLAT) has been endowed with the jurisdiction to reverse the commercial wisdom of the dissenting financial creditors and that too on the specious ground that it is only an opinion of the minority financial creditors....." 152. This Court in Committee of Creditors of Essar Steel India Limited through Authorised Signatory (supra) after reproducing certain paragraphs in K. Sashidhar (supra) observed thus: "Thus, it is clear that the limited judicial review available, which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors, has to be within the four corners of Section 30(2) of the Code, insofar as the Adjudicating Authority is concerned, a....
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....of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the adjudicating authority has to be satisfied that the requirement of subsection (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an adjudicating authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the adjudicating authority in limited judicial review has been laid down in Essar Steel [Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta, ....
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....ellant is 'NIL', this Tribunal is of the view that the amount distributed and the Resolution Plan is in accordance with the Order of priority in sub-Section (1) of Section 53 as the Plan had provided for the payment of debts of the 'Operational Creditor' in such a manner which is not less than the amount to be paid to such Creditors in the event of liquidation of the 'Corporate Debtor' under Section 53. 7. This Tribunal has a very limited jurisdiction to interfere except if there is any substantial evidence to establish that there was any material irregularity or if there was anything contrary to the law time being in force. The review is to be seen within the four corners of Section 30(2) of the Code only. 8. Moreover, it is seen from th....