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TaxTMI 
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2024 (1) TMI 142
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....07.2022 and 01.08.2022 passed by the Adjudicating Authority (National Company Law Tribunal), Ahmedabad Bench-II in IA No. 239/AHM/NCLT/2022 and IA No. 159 of 2020 respectively. 2. Brief facts of the case necessary to be noticed for deciding these Appeals are : - 2.1. Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor commenced on 02.05.2019. With regard to Corporate Debtor- 'GPT Steel Ltd.', Resolution Plan was submitted by the Appellant which was approved by the Committee of Creditors (CoC) on 18.02.2020. On 20.02.2020, Letter of Intent (LoI) was issued to the Appellant and IA No. 159 of 2020 was filed by the Resolution Professional for approval of the Resolution Plan before the Adjudicating Authority and IA No.116 of 2020 was filed by one 'M/s. Panch Tatva Promoters Private Limited' who was H-2 Bidder challenging the Resolution Plan of the Appellant which was dismissed. 2.2. An Appeal being Company Appeal (AT) (Insolvency) No. 642 of 2020 was filed by 'M/s. Panch Tatva Promoters Private Limited' challenging the order of the Adjudicating Authority which too was dismissed by this Appellate Tribunal by order dated 18.08.2021. This Tribunal held that....
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....ssful Resolution Applicant has failed to implement the Resolution Plans of 'Allied Strips Limited' and 'Tirupati Infraprojects Private Limited'. The intent of Financial Creditor was to obtain an order from the Adjudicating Authority to consider the Resolution Plan of 'M/s. Panch Tatva Promoters Private Limited' whose Appeal has already been dismissed on 18.08.2021 which issue cannot be allowed to re-agitated. Insofar as credit rating which was relied by some agency by the Financial Creditor, the credit agency in its own report has stated that they did not guarantee the accuracy, adequacy or completeness of any information. There was no sufficient reason to send back the Resolution Plan for reconsideration by the CoC. Appellant has successfully implemented the Resolution Plan of 'Allied Strips Limited' and with regard to Resolution Plan of 'Tirupati Infraprojects Private Limited', this Tribunal in appeal has held that there is no wilful contravention in implementation of the Resolution Plan. As a consequence of sending the Resolution Plan back, the CIRP has been stretched for additional period of 3 years and 10 months after expiry of the CIRP period on 19.02.2020. 5. Learned Seni....
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....omoters Private Limited' for consideration of his plan who was H-2 Bidder in CIRP having been rejected by the Hon'ble Supreme Court, the only plan which was in the CIRP was of the Appellant. In the application filed by the Respondent No.1, IA No. 239 of 2022, following prayers were made:- "i. Direct that the resolution plan of the Respondent No.1 be remanded back to the CoC so that the CoC can reconsider all the resolution plans submitted during the corporate insolvency process of the corporate debtor ii. Provide any other directions which this Hon'ble Tribunal may deem fit in the facts and circumstances of the matter." 9. Learned Counsel for the parties relied on the judgments of the Hon'ble Supreme Court as well as this Appellate Tribunal in support of their submissions which shall be referred to while considering the submissions in detail. 10. The rival submission which has been raised by the Learned Counsel for the parties is regarding the power of the Adjudicating Authority to remit the Resolution Plan for consideration before the CoC. 11. In "Ebix Singapore Pvt. Ltd. vs. CoC of Educomp Solutions Limited and Anr.- (2022) 2 SCC 401", the Hon'ble S....
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....rough authorised signatory vs. Satish Kumar Gupta & Ors.- (2020) 8 SCC 53". 13. Both the above judgments where the Resolution Plan approved by the Adjudicating Authority came for consideration and this Tribunal as well as the Hon'ble Supreme Court took the view that if the plan is not in accord with Section 30(2) of the Code, it can be sent back for re-consideration before the Adjudicating Authority. There can be no quarrel to the proposition that if the Resolution Plan submitted by the Resolution Applicant is not in accord with Section 30(2), it can be sent back to the CoC. There can also be no dispute to the proposition laid down by the Hon'ble Supreme Court in "K. Sashidhar vs. Indian Overseas Bank and Ors.- (2019) 12 SCC 150" that the commercial wisdom of the CoC has been given paramount status and the commercial wisdom of the CoC is not to be challenged or adjudicated by the Adjudicating Authority. Thus, the law is well settled that the Adjudicating Authority has ample power to remit the Resolution Plan for reconsideration by the CoC when there is violation of Section 30(2). 14. Now we refer to the facts of the present case. Present is not a case where CoC is claiming in....
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.... multiple opportunities and the Resolution Plans filed one after the other were considered and which were found to be conditional. The CoC in 16th meeting read with the 17th meeting and voting thereon approved the Resolution Plan of Respondent No.3. The grievance raised by the Appellant with regard to ineligibility of Respondent No.3 were also considered by the CoC with regard to the 'Allied Strips Limited' which was pointed out and CoC still took a conscious decision to accept the Resolution Plan of Respondent No.3." 17. In another judgment given by the Hon'ble Technical Member, again the submissions were advanced that Appellant has failed to implement the plan. The submission of the CoC that the CoC is ready to consider if the Court directs them to reconsider the plan of 'M/s. Panch Tatva Promoters Private Limited' noticed and rejected. It is useful to refer paragraphs 43, 48, 49, 50 and 51, which is as follows:- "43. It is pertinent to mention that neither Insolvency and Bankruptcy Code 2016 nor the Regulations made thereunder empowers the COC to get a second chance to review earlier approval and additional time for another Resolution Plan. In the instant cas....
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....us, are of the view that this Tribunal in earlier judgment dated 18.08.2021 is clearly held that the CoC cannot get a chance to review its decision and take a u-turn and reverse its decision already taken. It is also relevant to notice the submission on the basis of the fact that the Appellant has failed to implement the Resolution Plan of 'Allied Strips Limited' was also noticed. There is a delay in implementation of the Resolution Plan of 'Allied Strips Limited' and 'Tirupati Infraprojects Private Limited' by the Appellant was very much raised before the CoC and were considered by the CoC before approving the Resolution Plan of the Appellant and the CoC is well aware that there is delay in implementation of the plans of 'Allied Strips Limited' and 'Tirupati Infraprojects Private Limited' which was noticed in its minutes as has been brought on the record. 19. Learned Counsel for the Appellant has brought on record the order of this Tribunal where the Appeal filed by the Successful Resolution Applicant was allowed and Successful Resolution Applicant was permitted to implement the Resolution Plan of 'Allied Strips Limited' which has actually been implemented. Insofar as another R....
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.... Tribunal in "Kalinga Allied Industries India Private Limited vs. CoC and Ors.- Company Appeal (AT) (Insolvency) No. 689 of 2021" in which case this Tribunal relying on the judgment of Ebix Singapore took the view that the plan could not be sent back for reconsideration of the CoC. In paragraph 8, following was laid down:- "8. Though the main issue raised in 'Ebix Singapore Pvt. Ltd.' (Supra) is with respect to withdrawal/modification of a Resolution Plan by an SRA, the Hon'ble Supreme Court has clearly laid down that 'the NCLT is Residuary Jurisdiction [under Section 60(5)(c)] though vide, is nonetheless defined by the text of the Code. Specifically, the NCLT cannot do what the IBC consciously did not provide it the power to do'. Further, the Court observed that 'this Court must adopt an interpretation of the NCLT is Residuary Jurisdiction which concurs with the broader goals of the Code'. 'Ebix Singapore Pvt. Ltd.' (Supra) has observed that strict timelines have to be adhered to and that the Adjudicating Authority lacks the authority to allow the withdrawal/modification of the Resolution Plan by an SRA, as this would defeat the very objective of the statute. In the insta....
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....pertinent to mention that these Judgements are prior to the ratio laid down by the Hon'ble Apex Court in 'Ebix Singapore Pvt. Ltd.' (Supra). It is the case of the Intervenors that I.A. (IB) No. 815/2021 in C.P. IB No.-60(PB)/2018 is still pending Adjudication before the Adjudicating Authority and that the Appellant has no vested right for consideration of its Resolution Plan as they only continue to remain a prospective Resolution Applicant. At this juncture, it is significant to mention that the Order passed by this Tribunal in 'Kalinga Allied Industries India Pvt. Ltd.' (Supra), has set aside the Order of the Adjudicating Authority observing as follows: "With the aforesaid, we are of the view that when the Application for approval of Resolution Plan is pending before the Adjudicating Authority at that time the Adjudicating Authority cannot entertain an Application of a person who has not participated in CIRP even when such person is ready to pay more amount in comparison to the successful Resolution Applicant. If a Resolution Plan is considered beyond the time-limit then it will make a Company Appeal (AT) (Ins.) No. 518 of 2020 never-ending process. Thus, impugned order ....