TaxTMI 
TaxTMI 
TaxTMI 
2022 (5) TMI 1440
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....d with Regulation 39 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, in respect of the corporate debtor M/s. Venta Realtech Pvt. Ltd. 2. The facts in brief, necessary for disposal of the present application, are that M/s. Oriental Bank of Commerce, one of the Financial Creditors, had preferred an application under Section 7 of the Code, for initiation of Corporate Insolvency Resolution Process ("CIRP") against M/s. Venta Realtech Private Limited ("Corporate Debtor"). The said Company Petition was admitted on 20.05.2019, imposing moratorium under Section 14 of the Code and thereby, initiating CIRP, against the Corporate Debtor. Further, the applicant herein, Mr. Debashish Nanda, was appointed as the Interim Resolution Professional ("IRP"). 3. That the Applicant, on account of expiry of CIRP as on 27.07.2020, as directed by this Hon'ble Bench, filed an appeal under section 61 of the I & B Code, 2016, before Hon'ble NCLAT, challenging the impugned order dated 11.05.2021, seeking exclusion of 107 days from the period of calculating 270 days of CIRP, wherein Hon'ble NCLAT, after hearing the facts and circumstan....
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....as been amended by AIDPL in its revised resolution plan at page no. 12 of the amended resolution plan. That after due deliberations, the matter was put for e-voting. 9. That as per the voting instructions received by the Authorized Representative in the matter, out of total 26 home buyers only 19 home buyers have voted in the matter. That as per Section 25A (3A) of the Code, in case of Creditors in Class, the AR shall cast his vote on behalf of financial creditors, he represents in accordance with the decision taken by a vote of more than fifty percent of voting share of the financial creditors, he represents, who have cast their vote; therefore, in view of the same 89.80% voting in favour by the home buyers have been reckoned as 100% for their 50.93% share voting rights in the CoC. 10. That as per the voting instructions received from the Creditors in Class i.e., Home Buyers, the Authorized Representative has reckoned that majority (more than fifty percent) of Home Buyers, have decided in favour of Resolution Plan and accordingly, have casted his vote "in favour" or "Assent" on behalf of the Creditors in Class, representing 50.93% of voting rights in the CoC. 11. That, thus ....
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....economy of the country. 16. That in the sixth meeting of CoC, after due deliberations by the members of CoC on the Resolution Plan, the matter was put for e-voting as follows: "RESOLVED THAT the resolution plan submitted by Adani Infrastructure and Developers Private Limited be and is hereby approved by the CoC." "FURTHER RESOLVED THAT the Resolution professional is authorized to submit the Resolution Plan before the Hon'ble NCLT, New Delhi, for approval and other necessary action as required in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016 and regulations made thereunder." 17. The Applicant presented the said plan, with suggested changes, before the eighth meeting of CoC on 04.03.2020 and allowed the members of CoC to make their observations. Thereafter, the members of the CoC deliberated upon the Resolution Plan and approved it with 98.58% votes, through e-voting, which concluded on 05.10.2020. 18. The present Application is being filed by the Applicant herein, in pursuance of and in terms of the approval of the CoC, of the Resolution Plan submitted by Adani Infrastructure and Developers Private Limited, approved by 98.58% of the voting sh....
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....ial creditors in such manner as specified; provides for the management of the affairs of the corporate debtor, after approval of the Resolution Plan; the implementation and supervision of the Resolution Plan, that the Resolution Plan does not contravene any of the provisions of the law and that the Resolution Plan conforms to such other requirements as may be specified by the Board. 27. The Resolution Professional has filed compliance certificate in Form H and inter alia, has confirmed that he has examined and verified the Resolution Plan, approved by the CoC of M/s. Venta Realtech Pvt. Ltd., in the light of the requirements of the Code and Regulations and that it is compliant to the relevant provisions of the Code and Regulations. 28. It has been submitted in the application and in Form H, duly certified by RP, that the final Resolution Plan, approved by 98.58% vote share of the members of the Committee of Creditors, meets the requirements as laid down in various clauses of Section 30 (2) of the Code. 29. In respect of compliance of Section 30(2)(a) of the Code, it is seen that there is a provision in the resolution plan, at Para 2(iv) of Section II of Part II, which provide....
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....n terms of clause (e) & (f) of sub-section (2) of Section 30 of the Code, provide to ensure that the Resolution Plan does not contravene any of the provisions of law and conforms to such other requirements as may be specified by the Board. 37. In this regard the resolution professional has certified that the said Resolution Plan complies with all the provisions of the Insolvency and Bankruptcy Code 2016, the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and does not contravene any of the provisions of law, for the time being in force. Be that as it may, in terms of clause (e) & (f) of sub-section (2) of Section 30 of the Code, we make it clear that the Resolution Applicant shall comply with all applicable laws under the proposed Resolution Plan, whether or not specifically provided therein. 38. It is pertinent to state here that Section 29A of the Code prescribes certain eligibility criteria and disqualifications, for persons who submit a resolution plan. Resolution Applicant has given adequate declaration and undertaking, on their eligibility to submit the Resolution Plan. At para 4 (ii) of Form H, Resolution P....
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....o effectively participate in the meeting of the CoC. Admittedly, the Authorized Representative did not seek preliminary views of the Applicants being them and thus, the process followed by Authorized Representative and Resolution Professional is in complete contravention to the provisions of the | & B Code, 2016 and IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 ('CIRP Regulations'). c. Further, it is submitted that a conjoint reading of Regulations 25(5), 25(6), 25A and 26 provides for voting through electronic means for creditors in class, whereas, in the present case the Resolution Professional has acted in complete contravention to the CIRP Regulations and did not use e-voting process/mechanism for creditors in class. The Authorized Representative, vide its email dated 12.01.2022, admitted that the e-voting portal for creditors in class is not being used for voting on Resolution Plans. 42. The Resolution Professional in its response states that, It is alleged by the three allottees in L.A. No. 572/2022 that in terms of sub-regulation (6) of Regulation 25, the AR/ RP did not keep providing the voting window to the allottees alter circulation of....
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....e reconsideration of the Resolution Plan by the allotted and the CoC, the RP informed the CoC members that the members were required to cast their vote by email which was agreed to by the CoC members. No objections were raised from any member of the CoC. There are only 26 home buyers in the class of homebuyers. In view of only 12 days provided by the Hon'ble AA to complete the process, il was considered expedient by the AR to complete the voting process by email. 46. As a sequel to aforesaid discussions, we are satisfied that the objections raised by just three home buyers, out of 26 home buyers, have no merit as the time limit was fixed by this Tribunal and in view of which the RP carried out the process within the framework of the Code. Further, all the requirements of Section 30 (2) are fulfilled and no provision of the law, for the time being in force, appears to have been contravened. 47. 'The Resolution Professional has further certified, that the Resolution Plan has been approved by 98.58% of voting share of financial creditors, after considering its feasibility and viability and other requirements specified by the Code and IBBI Regulations. 48. 'he Adjudicating Author....
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.... Plan cannot take care of total outstanding dues of the creditors in its entirety. It is however seen that the resolution applicant proposes to pay the total consideration amount. 52. It is a well settled proposition of law that commercial and business decisions of CoC are not open to judicial review. The Adjudicating Authority cannot enquire into the commercial wisdom of CoC. The ground for rejection is limited to the matter specified under Section 30(2). It is however reiterated that the resolution plan in question meets the requirements specified in Section 30(2) of the Code and the reasoned commercial decision of CoC is neither discriminatory nor perverse. 53. In view of these facts, we are satisfied that the requirements, as per the Code and the relevant Regulations, have been complied with. Moreover, the Resolution Plan has been approved by 98.58% of the voting share of the members of CoC and has been submitted in compliance with Section 30 of the Code for approval. In view of the aforesaid discussions and as no infirmity has been brought out upon screening of the Resolution Plan; we hereby approve the Resolution Plan under sub-section (1) of Section 31 of the Code. 54.....