TaxTMI 
TaxTMI 
2022 (7) TMI 149
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....s Appeal are: The Corporate Debtor- 'Nimitaya Hotel and Resorts Limited' as its name suggests is in the hospitality business. Nimitaya Group consisted of three other entities apart from the Corporate Debtor. Against Corporate Debtor and three other entities of Nimitaya Group amounts were due to the Allahabad Bank (now Indian Bank). The compromise proposal of the Nimitaya Group was accepted by Allahabad Bank for Rs.260 Crores by letter dated 19.03.2019. As per compromise, Rs.154 Crores was to be paid by 31.03.2019 and remaining balance of Rs.102 Crores was to be paid within 90 days. Although Nimitaya Group including the Corporate Debtor made the payment of Rs.156 Crores by 31.03.2019 but could not make the balance payment within three months as per the time granted. A Section 7 Application filed by the Allahabad Bank against the Corporate Debtor after acceptance of the compromise proposal was withdrawn on 11.04.2019. The Corporate Debtor could not pay the balance of Rs.102 Crores which led to filing of Section 7 Application by the Allahabad Bank in July, 2019. During pendency of Section 7 Application, the Respondent Bank invited bid from eligible Asset Reconstruction Companies (A....
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....peal on 14.02.2022. In the meantime, the 'Interim Resolution Professional' will not constitute the 'Committee of Creditors', if not yet constituted. However, the 'Interim Resolution Professional' will ensure that the company remains a going concern." 2. Subsequently, the interim order passed by this Tribunal was vacated on 15.03.2022. Paragraph 2 of the order is as follows:- "2. Be that as it may, it is open for the Appellant to make deposit without any prejudice to the rights of the parties and approach the Bank for accepting the offer. We make it clear that we are not expressing any opinion at this stage regarding the claim of the Appellant. However, we are of the view that Interim Order dated 05.01.2022 is modified and let the 'Committee of Creditors' be constituted. However, the Interim Resolution Professional shall ensure that Company remains a 'going concern'. List this Appeal on 19th April, 2022." 3. Respondents have filed their Reply-Affidavit. Appellant has also filed an Additional-Affidavit. 4. We have heard Shri Abhijeet Sinha, Learned Counsel for the Appellant and Shri Rajesh Kumar Gautam, Learned Counsel for the Respondents. 5. Le....
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....e with the order impugned by which the Application under Section 7 has been admitted. 7. We have considered the submissions of the Learned Counsel for the parties and perused the record. 8. The present is a case where the Corporate Debtor is not denying its financial liabilities to the Bank. As noted above, a compromise proposal was accepted for Rs.260 Crores against the Nimitaya Group consisting of Corporate Debtor and three other entities. An amount of Rs. 154 Crores was paid by 31.03.2019 and due was only Rs.102 Crores which remains to be paid. Consequently, an earlier compromise failed. Subsequent to filing Section 7 Application, the Bank had issued a proposal for sale of NPAs to Asset Reconstruction Companies (ARC's)/ Non-Banking Financial Companies (NBFC's)/ Financial Institution (FI's) vide its Notice dated 18.01.2021. Copy of the proposal for sale notice in Annexure A-9 annexed in the Appeal in which under heading "NPAs with book balance of above Rs. 50.00 Crs. and upto 100 Crs.". The Corporate Debtor is mentioned at Item No.1 with following details:- "II NPAs with book balance of above Rs.50.00 Crs. and upto 100 Crs S No. BRANCH NAME &....
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....easons accompanying the introduction of the Bill indicates, the objective of the IBC is to facilitate insolvency resolution "in a time bound manner" for maximisation of the value of assets, promotion of entrepreneurship, ensuring the availability of credit and balancing the interest of all stakeholders............. 29. The IBC is a complete code in itself. The Adjudicating Authority and the Appellate Authority are creatures of the statute. Their jurisdiction is statutorily conferred. The statute which confers jurisdiction also structures, channelises and circumscribes the ambit of such jurisdiction. Thus, while the Adjudicating Authority and Appellate Authority can encourage settlements, they cannot direct them by acting as courts of equity.........." 11. Learned Counsel for the Respondent has relied on the judgment of the Hon'ble Supreme Court in "Bijnor Urban Cooperative Bank Limited, Bijnor and Ors. vs. Meenal Agarwal and Ors.- 2021 SCC OnLine SC 1255" wherein the Hon'ble Supreme Court has laid down following in paragraph 30:- "30. The sum and substance of the aforesaid discussion would be that no writ of mandamus can be issued by the High Court in exercise ....
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.... amount of more than Rs.81 Crores. 14. The CoC under the IBC has been given full freedom to grant an approval of 90% voting share to a proposal under Section 12A only thereafter Application can be filed before the Adjudicating Authority. The freedom of decision of the CoC is unfettered. However, in the facts of the present case, we are of the view that CoC while taking a decision for accepting or rejecting of proposal under Section 12A may also take following factors into consideration:- (i) The Bank had issued a proposal for sale of NPA of the Corporate Debtor to the Asset Reconstruction Companies (ARC's)/ Non-Banking Financial Companies (NBFC's)/ Financial Institution (FI's) for an amount of Rs.81 Crores. (ii) Whether the Financial Creditor looking to the assets of the Corporate Debtor shall be able to realise an amount more than offered by the Appellant either in the insolvency resolution process by Resolution Plan or a liquidation process. (iii) The maximisation of the assets of the Corporate Debtor is one of the objectives, equally important is the recovery of the financial dues of the Bank and we have no doubt that CoC while taking a decision sha....