TaxTMI 
TaxTMI 
TaxTMI 
2022 (9) TMI 1217
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...., Adv. For the Respondent No. 1 : Mr. Abharajit Mitra, Adv. Mr. Jishnu Chowdhury, Adv. Mr. Vikram Wadehra, Adv. Ms. Vidushi Chokhani, Adv For the Respondent No. 3 : Mr. Jishnu Saha, Sr. Adv. Mr. G. Mathur, Adv. Mr. Supriyo Gole, Adv. For the Respondent No. 4 : Mr. Pradeep Kr. Jewrajka, Adv Ms. Pooja Jewrajka, Adv. For the Respondent No. 5 : Mr. Soorjya Ganguli, Adv. Ms. Pooja Chkrabarti, Adv. Ms. Kiran Sharma, Adv. ORDER Per : Rohit Kapoor , Member ( Judicial ) 1. Preamble 1.1. The Court convened through hybrid mode. 1.2. The Inv. Petition has been filed by the U.P. Glass Manufacturers Syndicate against the submission of the Resolution Plans by Nirma Chemical Works Private Limited ("Respondent No. 3") and AGI Greenpac Limited ("Respondent No. 4"). 1.3. Vide order dated 21 October 2021, this Adjudicating Authority admitted Hindusthan National Glass & Industries Limited ("Corporate Debtor") into Corporate Insolvency Resolution Process ("CIRP"). 2. Submissions of the learned Senior Counsel appearing for the Applicant 2.1. The Applicant is a Non-Government Company incorporated on 20 February 1951 and is an Industry association representing the interest of Small-Scale and Me....
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....gement or violation of the provisions of section 5 of the Competition Act, 2002 may be reported to the Competition Commission of India by any person which would include the Applicant as well and since the CIRP of the Corporate Debtor is pending before this Adjudicating Authority, the Applicant has approached this Adjudicating Authority for necessary compliance of section 5 of the Competition Act, 2002 read with section 31(4) of the Insolvency and Bankruptcy Code, 2016 ("Code"). 2.8. By virtue of section 63 and section 238 of the Code, this Adjudicating Authority has exclusive jurisdiction in the matters connected to the CIRP including the functioning of the Resolution Professional and the Committee of Creditors of the Corporate Debtor. The learned Counsel submitted that the proceedings under the Code are proceedings in rem and placed reliance on Swiss Ribbons v. Union of India (2019) 4 SCC 17 and that proceedings under the Competition Act, 2002 are also proceedings in rem as held in Samir Agarwal v. CCI (2021) 3 SCC 136. 2.9. The member of the Applicant are MSME Glass manufacturers whose interests would be materially affected if the Resolution Plans submitted by the Respondents N....
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....ondent No. 2 3.1. The learned Counsel for the Committee of Creditors raised two defences: 3.1.1. The locus standi of the Applicant The present Application has been filed in public interest and as representative of the Small-Scale and Medium-Scale Glass Manufacturers, the Applicant is neither a Financial Creditor nor an Operational Creditor and is not related to the Corporate Debtor hence it has no right to object to the method and manner in which the Resolution Plans are being considered by the Committee of Creditors. The applicant has no locus to prefer the present application under Section 30(2) and Section 30(3) of the Code as the applicant is not the Resolution Professional or a member of the Committee of Creditors. Section 30(2) of the Code provides of examination of the resolution plan and Section 30(3) of the Code requires the Resolution Professional to present the Resolution Plans for approval after the Resolution Professional has examined the plan in terms of Section 30(2) of the Code. None of these provisions provide locus to the applicant - being a syndicate and an outsider to the CIRP to raise file an application seeking a direction to the Resolution Professional to ....
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....2 or not and it is solely within the domain the Competition Commission of India. 5. Submission of the learned Counsel for Respondent No. 5 5.1. The learned Counsel submitted that the Applicant has no locus standi, secondly the Intervention Petition is based on surmises and conjectures and should not be entertained. The Applicant has admitted that it is not privy to what has transpired in the meetings of the Committee of Creditors and the allegations upon Respondent No. 5 are based on mere apprehensions. 5.2. The learned Counsel also relied on Arcelormittal India (supra.) and submitted that it is always open to the Committee of Creditors to look into the viability, feasibility and commercial aspect of the Resolution Plan and that the approval of the Competition Commission of India may be obtained after the approval of the Resolution Plan by the Committee of Creditors and prior to the approval of the Resolution Plan by the Adjudicating Authority. 6. Analysis and Findings 6.1. We have heard the learned Counsel appearing on behalf of the Applicant and the Respondents and perused the records. 6.2. We seek to place reliance on Bank of Maharashtra and Ors. v. Videocon Industries Ltd....