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2023 (12) TMI 128
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.... 2016 (hereinafter referred to as 'the Code'). The Adjudicating Authority has in the Order Impugned dismissed the Applications preferred by the Appellant herein, observing as follows: 23. A perusal of the Minutes of the Meetings mentioned by the Counsel appearing for the RP would show that the Applicant had been very much present, either personally or through his representative and the deliberations of the agenda items took place in his presence. The OTS proposal was not accepted by the Bank and the same was communicated to the Applicant by letter dated 07.02.2023 by the Asst. General Manager of the Bank. The failure was due to the Applicant being not able to honour the terms of compromise despite extension of time. 24. In the 10th CoC Meeting for which, the representative of the Applicant was present, the list of the issues to be voted at the meeting were also mentioned. 25. In the 12th CoC meeting, where the Applicant was very much present. It was informed by the RP that an IA is filed for approval of the Resolution Plan. 26. Hence from the above, it is evident that the Applicant was present in almost all the meetings and he was put on proper n....
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.... resolved that an Application seeking extension of CIRP period would be filed by the RP and these facts were gathered by the Appellant only from the minutes of the 11th CoC Meeting along with the notice for 12th CoC Meeting dated 27/01/2023. It is argued by the Learned Counsel for the Appellant that they were not intimated by the Meeting scheduled at 3.00 p.m. While so, on 20/12/2022 SBI replied to the Appellant rejecting the OTS Proposal. On 03/01/2023, the CIRP period was extended for 45 days and on 13/01/2023, the RP received the relative voting sheet for the approval of the Resolution Plan. 3. It is the case of the Appellant that it was only on receipt of Notice of the 12th CoC Meeting dated 27/01/2023 that the Appellant had become aware about the approval of the Resolution Plan and that the Letter of Intent ("LOI") was issued to the Successful Resolution Applicant ("SRA"). It is argued by the Learned Counsel for the Appellant that it was only when the Notice for the 12th CoC Meeting was issued that the Appellant was informed about the approval of the Resolution Plan on 27/01/2023. Meanwhile on 30/01/2023, an e-mail was sent by the Appellant to SBI revising the OTS Proposal.....
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....e of creditors. Such notice of meeting must contain an agenda of the meeting, together with the copies of all documents relevant for matters to be discussed and the issues to be voted upon at the meeting vide Regulation 21(3)(iii). Obviously, resolution plans are "matters to be discussed" at such meetings, and the erstwhile Board of Directors are "participants" who will discuss these issues. The expression "documents" is a wide expression which would certainly include resolution plans." 5. It is the further case of the Appellant that being unaware of Regulations 21, 24 and 26 of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016, the Appellant did not ask for the Resolution Plan during the CoC Meetings but has however, recorded its objections before the Adjudicating Authority and also specifically stated so in his affidavit. It is also argued that the doctrine of waiver does not arise as the Appellant got to know about the approval of the Resolution Plan only on 27/01/2023 and immediately thereafter, on 31/01/2023, the Appellant had recorded its Objections before the Adjudicating Authority. 6. The Learned Counsel for the first Respondent / RP subm....
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....tor and its Directors in the list of wilful defaulters. In the 10th CoC Meeting, the Appellant's representative was present when one of the Prospective Resolution Applicants had requested to withdraw from the process and the evaluation matrix was discussed at length. On 09/12/2022, the Appellant had extended the OTS for Rs. 80 Crores and also deposited an amount of Rs. 1 Crore into the no lien account of the Financial Creditor. The e-voting was scheduled to be open on 11/12/2022 10.00 a.m. to 15/12/2022 5.00 p.m. The Notice for the 11th CoC Meeting was given to the Appellant on 12/12/2022. On 14/12/2022, the 11th CoC Meeting was conducted but the timing was changed from 11.30 a.m. to 2.00 p.m. due to the non-availability of the sole creditor. The time change was also intimated. The time change was also intimated which is evident from the whatsapp text to the RP. The OTS Proposal was rejected on 20/12/2022. In the 12th CoC Meeting, the Appellant was present when the RP informed that the CoC voted in favour of the Resolution Plan submitted by M/s. Square Four Housing and Development Private Limited. On 23/01/2023, the RP filed IA No. 192/2023 for approval of the Resolution Plan. On 0....
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....to the Appellant herein. It is seen from the record that the Notice of the 11th CoC Meeting scheduled to be held on 14/12/2022 at 11.20 a.m. was sent by an email along with the Meeting link to the Appellant herein. The said email is reproduced as hereunder : 12. It is the case of the Appellant that the change in the timing was not informed. But the whatsapp conversation with the RP requesting for Minutes of the 11th CoC Meeting stating that 'due to sudden time change in CoC Meeting we couldn't attend that online' establishes that the Appellant was very much aware of the change in the CoC Meeting time. It is also not in dispute that the minutes of the 11th CoC Meeting were reconfirmed in the 12th CoC Meeting which was attended by the Appellant herein. To examine whether any prejudice was caused to the Appellant for not having attended the 11th CoC Meeting at 3.00 p.m., we find it apposite to reproduce the minutes of the 12th Meeting of the CoC held on 01/02/2023, which was attended by the Appellant. ( Emphasis Supplied ) 13. From the aforenoted minutes, it is clear that the minutes of the 11th Meeting of the CoC held on 14/12/2022 stood confirmed; that the Appellant wanted ....
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....mplied with by the Respondents as the contents of the Notice for the Meeting and presenting all Resolution Plans at the Meetings of the CoC was duly done by the RP. Therefore, we are of the considered view that there was no violation of any Regulation of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016 to warrant our interference in the approval of the Resolution Plan. 15. Now, we address to whether the ratio in the matter of 'Vijayakumar Jain Vs. Standard Chartered Bank' reported in [(2019) 20 SCC 455] is applicable to the facts of this case. For better understanding of the attendant case, the reliefs sought for in IA No. 315 & 316/2023 respectively filed by the Appellant herein is reproduced as hereunder: IA No. 315/2023 VII. PRAYER: In the above circumstances and based on the facts of the case, it is prayed that this Hon'ble Tribunal may be pleased to : (a) Declare that the process for approval of resolution plan as conducted by Respondent No. 1 was not in accordance with the Insolvency and Bankruptcy Code, 2016 and the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate P....
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.... Furthermore, during the entire process my One Time Settlement proposal was under consideration and hence I was given to understand that there was possibility of this being accepted. However, after I realized that my rights had been trampled, and when I first voiced my objection before the Hon'ble NCLT on 31.01.2023, the Bank rejected my OTS proposal immediately vide its Letter dated 07.02.2023." 17. From this Affidavit it is clear that the Copy of the Resolution Plan was never asked for during any of the CoC Meetings whereby and whereunder the evaluation matrix and the approval of the Resolution Plan was discussed. It is the case of the Appellant that the objection regarding the Resolution Plan was raised in the 12th CoC Meeting and the Appellant herein sought to file an Impleadment Application. The fact remains that there was no request made for a copy of the Resolution Plan. In Vijayakumar Jain case, the Appellant was denied participation in the Meetings and the Appellant had filed Miscellaneous Applications before the Adjudicating Authority seeking a direction to effectively participate in these Meetings and even executed a non-disclosure Agreement for sharing the Resolu....
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....nference (Zoom Webinar application). The agenda of the COC meeting and minutes of the last COC meeting are enclosed for your information. The participants of the COC meeting are requested to download Zoom Webinar application Meeting Link: M/s YKM Entertainment and Hotels Private Limited under CIRP is inviting you to a scheduled Zoom meeting. Topic: 11th COC of M/s YKM Entertainment and Hotels Private Limited under CIRP Time: Dec 14, 2022 11:30 AM India Join Zoom Meeting https://us02web.zoom.us/j/83579301737 Meeting ID: 835 7930 1737 Thanks & Regards, * Dantu Indu Sekhar, Resolution Professional, For YKM Entertainment and Hotels Pvt Ltd Regd. Insolvency Professional. Reg No: IBBI/IPA-003/IPA-ICA-N-00233/2019-2020/12773 Flat No. 104, Kavuri Supreme Enclave, Kavuri Hills, Madhapur, Hyderabad - 500.033 Mobile No: 88066 67974 2 attachments Notice-11th COC-YKM.pdf 2277K Minutes-10th COC-YKM.pdf 2401K Document 2 A. LIST OF MATTERS DISCUSSED AT THE MEETING: A1. The Resolution Professional to take Chair In accordance with the Regulation 24(1) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations....
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....C meeting held on 14.12.2022. i) ii) iii) iv) v) vi) vii) As advised by CoC, RP has filed an application before Hon'ble NCLT for extension of CIRP period for further 45 days w.e.f. 20-12-2022 and the same was approved on 03.01.2023 by the Tribunal. CoC approved /voted in favour of the Resolution Plan submitted by M/s. Square Four Housing and Infrastructure Development Pvt. Ltd. and the remaining 4 Resolution Plans submitted by 1) M/s. Terminus Hotels and Resorts Pvt. Ltd. 2) M/s. GVPR Engineers Ltd. 3) Consortium of M/s. Green rich Projects Private Limited. & M/s. Sanghavi Cylinders Pvt. Ltd. 4) M/s. Sankalp Recreation Pvt. Ltd. are not approved. The relative voting sheet was received by the RP on 13.01.2023. LOI issued on 14.01.2023 to Successd Resolution Applicant (SRA) viz., M/s. Square Four Housing and Infrastructure Development Pvt. Ltd. and their unconditional acceptance received. SRA also submitted the Performance Bank Guarantee (PBG) on 19.01.2023 for 15% of their Bid amount as per RFRP terms. I.A filed by RP on 23.01.2023 with Hon'ble NCLT for approval of Resolution Plan submitted by the SRA. The 4 unsucc....