2023 (2) TMI 1034

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....Pte Limited', the `Applicants' in IA446/2021 preferred this `Appeal' under Section 61 of the Insolvency and Bankruptcy Code, 2016, (hereinafter referred to as `The Code'), challenging the observations of the `Adjudicating Authority', which is detailed as hereunder: "IA (IBC) No.446 of 2021: This application is filed by Triumph Commodities Pte. Limited seeking directions against the Resolution Professional and the CoC to consider the Plan. CIRP period of 330 days is over. We cannot direct the Resolution Professional or CoC, at this stage, after completion of CIRP. This application is, therefore, not maintainable. The same stands disposed of as not maintainable. The matter is adjourned to 17.11.2021." 2. It is the case of the `Appellant' that it is a `Resolution Applicant' who had participated in the Corporate Insolvency Resolution Process (`CIRP') of the `Corporate Debtor', namely `Aster Private Limited' and had submitted a revised Resolution Plan dated 19.05.2019, subsequent to which `Application' IA446/2021 was preferred seeking a direction to the Committee of Creditors (`CoC') to consider their revised Resolution Plan. It is submitted that a revised ....

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....03.2021 and on 19.04.2021. It is state that these revisions demonstrate that the `Appellant' is seriously interested in taking over the `Corporate Debtor' and the `Resolution Applicant' has submitted the Plans to suit the `commercial requirements' of the Members of the COC. 5. It is submitted that the RP had asked the `Appellant' to consider `signing' an `addendum' to the said revised Resolution Plan dated 19.04.2021, but the `Appellant' vide email dated 21.04.2021 had stated that they would not be inclined to submit any `addendum' as sought by the CoC. Based on further discussions, the `Appellant' revised the financial terms of the Resolution Plan vide email dated 19.05.2021, however, the same could not be considered by the CoC which had already voted on the Resolution Plan as submitted on 19.04.2021 rejecting the said version of the Resolution Plan as it stood on 19.04.2021. 6. It is the case of the `Appellant' that owing to non-consideration of its revised offer dated 19.05.2021, IA446/2021 was preferred seeking a direction to the CoC to consider its revised Resolution Plan. Though the CoC was of the view that the revised Resolution Plan dated 16.08.2021 was a viable one, ....

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....me Court in 'K. N. Rajkumar' Vs. 'Nararajan' Civil Appeal No.1792/2021, wherein it is observed as follows: "It could thus be seen that one of the principal objects of the IBC is providing for revival of the Corporate Debtor and to make it a going concern. Every attempt has to be first made to revive the concern and make it a going concern, liquidation being the last resort." Thus, it is submitted that it is the very mandate of IBC that every possible attempt should be made to avert liquidation, which object of IBC stands defeated by the unreasoned `Impugned Order'. 9. Learned Counsel appearing for the `Liquidator' submitted that pursuant to the directions of the `Adjudicating Authority' dated 26.08.2021, the `Liquidator' brought the issue to the notice of the CoC and it was only on the instance of the CoC, that an email dated 14.09.2021 was sent to the `Appellant' herein. A perusal of the email would reveal that the Members of the CoC was to consider if the `Resolution Applicant' was agreeable to carry out the changes mentioned herein. It was specifically stated in the email that the CoC had accepting the confirmation from the `Appellant' by 14.09.2021 evening so as ....

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....he initiation of the `Liquidation Process'. 12. It is seen from the record that the CoC has discussed in detail the Plan of the `Resolution Applicant' in their various Meetings and suggested for modifications in the Resolution Plan. It is pertinent to mention that a total time of 281 days i.e., from 14.07.2020 to 20.04.2021 was given for submission of the revised Resolution Plan and a final call was given by the RP stating that if no signed Plan is received on or before on 20.04.2021, the CoC may consider the matter as if there is no Plan. A perusal of the email dated 21.04.2021 shows that the `Resolution Applicant' had refused to make the intended changes in the Resolution Plan and therefore in the e-Voting held for the period 22.04.2021 to 19.05.2021, the COC rejected the Resolution Plan submitted by the Appellant by a majority Vote of 85.96%. It is also significant to mention that 330 days period of the CIRP has lapsed. The contention of the Learned Counsel for the `Appellant' that the `Adjudicating Authority' ought to have extended the period of the CIRP as the CoC was considering its Resolution Plan, is untenable in the light of the fact that in the 16th CoC Meeting held on....