TaxTMI 
TaxTMI 
2024 (5) TMI 628
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Shivam Wadhwa, Advocates for R-1/(RP) Mr. Gopal Jain, Sr. Advocate with Mr. Madhav V. Kanoria, Ms. Srideepa Bhattacharyya and Ms. Neha Shivhare, Advocates for R-2. Mr. K. Venugopal, Sr. Advocate with Ms. Gauri Rasgotra, Ms. Priyashree Sharma, Mr. Shivansh Agarwal and Mr. Krishnan Agarwal, Advocates for Intervenor in I.A. No. 1214/2024 Mr. Kapil Sibal, Mr. Ramji Srinivasan, Sr. Advocates with Ms. Ruby Singh Ahuja, Ms. Hancy Maini, Mr. Varun Khanna, Mr. Devang Kumar, Mr. Manisha Singh and Ms. Namrata Saraooh, Advocates for R-3 JUDGMENT ASHOK BHUSHAN , J. These three Appeals have been filed against the Order dated 06.10.2023, passed by the Learned Adjudicating Authority (National Company Law Tribunal, Mumbai Bench, Court IV). 2. Comp. App. (AT) (Ins.) No. 1395-1397 of 2023 have been filed against the Order dated 06.10.2023 passed in I.A. 3399/2023 and I.A. 3336/2023 as well as in I.A. No. 2794/2023 in C.P.(IB)-893(MB)/2021. Comp. App. (AT) (Ins.) No. 1445 of 2023 has been filed challenging the order dated 06.10.2023 passed in I.A. 3336/2023 in I.A. 2794/2023 in C.P.(IB)-893(MB)/2021. Comp. App. (AT) (Ins.) No. 1535/2023 has been filed challenging the order dated 06.10.2023 in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....3. On voting result dated 08.06.2023, the Resolution Plan of SEML as amended read with addendum dated 10.05.2023 was approved with 100% vote shares. xv. On 08.06.2023, RP issued a Letter of Intent (LoI) to SEML who was called upon to submit Performance Guarantee of INR 150 Crores. xvi. On 12.06.2023, SEML unconditionally accepted the LoI and submitted Performance Guarantee of INR 150 Crores in favour of Bank of Baroda (BoB). xvii. On 17.06.2023, RP filed an I.A. No. 2794/2023 before the Adjudicating Authority for approval of SEML Plan as approved by the CoC. xviii. On 20.06.2023, RP informed Torrent Power Ltd. and other Resolution Applicants about the approval of the Resolution Plan by the CoC. xix. The Earnest Money Deposit (EMD) received from other Resolution Applicants were refunded by the RP. xx. I.A. 2794/2023 was heard by the Adjudicating Authority and by order dated 10.07.2023, reserved for orders. xxi. On 01.08.2023, I.A. 3336/2023 was filed by Vantage Point Asset Management Pte Ltd., an unsuccessful Resolution Applicant praying for various reliefs in the application. xxii. On 03.08.2023, I.A. 3399/2023 was filed by Torrent Power Limited, an unsuccessful Res....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wisdom of the CoC. The Adjudicating Authority is required to evaluate the plan on the touchstone of Section 30(2) read with Section 31 of the Code. Adjudicating Authority is not required to examine the correctness of the decision taken by the CoC, as the decision to approve the Resolution Plan lies solely with the CoC in their commercial wisdom. 11. In the present case, Adjudicating Authority undertook exercise in analysing the interpretation of financial data before the CoC including comparison on the terms of the Resolution Plan/addendums and clarifications and review of the emails, evaluation matrix, CoC minutes etc. Adjudicating Authority undertook its own assessment of how various Resolution Plans should have been scored on the Evaluation Matrix. Adjudicating Authority undertook its own analysis and assessment of what should or should not have been considered by the CoC in the upfront amounts offered by Resolution Applicants. Adjudicating Authority exceeded the jurisdiction vested under the Code while considering the approval of the Resolution Plan. 12. Adjudicating Authority embarked on process exercise and termed it 'perverse' justifying interference in the approval of Res....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing any opportunity to the CoC, RP and SRA to explain the various terms in the Resolution Plan of the SRA came to incorrect assumption that relevant data was not placed by RP before the CoC. Adjudicating Authority substituted the commercial wisdom of CoC with its own assessment and in the understanding of the Resolution Plan the assessment and evaluation taken by the Adjudicating Authority is ex-facie incorrect and contradictory. Adjudicating Authority has made incorrect conclusion that SEML proposal only relate to INR 122.23 Crores of Margin Money and INR 58.08 Crores was not accruing to the Financial Creditor. 18. No clarification from RP or Process Advisor was sought by the Adjudicating Authority. Adjudicating Authority finding that equity value was not assigned by the review in the scoring of Resolution Plan of two PRA was again an incorrect assumption by the Adjudicating Authority. 19. On the Affidavits filed by the RP on 21.08.2023 i.e., after reserving of the order, no hearing was given nor any opportunity was given to respond the pleadings and documents, whereas the documents and pleadings brought on record after the reserving of the order were looked into. The process fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....submitted that intervention is warranted by the Adjudicating Authority or the Appellate Tribunal when decision of the CoC is wholly capacious, arbitrary and irrational. When the decision is arrived at by not knowing the material, such a finding is perverse and is amenable to interference by Adjudicating Authority. 22. On the submission of the CoC and RP to substantiate their stand relying on 34th Meeting of the CoC held on 18.10.2023 pursuant to the impugned order of the Adjudicating Authority where CoC has arrived at the same conclusion and found the finding of the Adjudicating Authority to factually inaccurate, it is submitted that any subsequent Resolution of the CoC as alleged in Meeting dated 18.10.2023 cannot cure the deficiency as noticed by Adjudicating Authority in the impugned order. It is further submitted that Minutes of the Meeting dated 18.10.2023 has not been placed on the record of this Tribunal, hence the same cannot be relied for any purpose. 23. Adjudicating Authority has rightly taken the view that applications can be examined only on the issue of discussion of perversity. It is submitted that RP, by disguise of seeking clarification by email dated 08.05.2023 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....without any basis. The CoC in its Reply, filed in this appeal has also affirmed that RP or its Legal Advisor has not placed incomplete financial data. It is submitted that Adjudicating Authority has recorded inaccurate finding regarding replacement of 100% margin, by Bank Guarantee. Impugned order wrongly determined that equity offered by Jindal Power Limited and Vantage Point Asset Management Pte. Ltd. should have been valued by an addendum to such amount and scoring should have been carried out accordingly. It is submitted that after reserving the order by the Adjudicating Authority, application filed by Torrent Power Ltd. and Vantage Point Asset Management Pte. Ltd. ought not to have entertained and the Adjudicating Authority was to consider the averments and pleadings in the application. Opportunity ought to have been given to the RP to file its Reply and explain the process. 31. In accordance with the impugned order the Resolution Plans received by the RP were reviewed by the CoC in 34th CoC Meeting dated 19.10.2023 wherein CoC has affirmed the said position and has re-verified the numbers and affirmed that RP did not place incorrect or incomplete Financial Data before the Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ditors is concerned, the same was to be assessed and marked separately in the Evaluation Criteria at Item 4. The Evaluation Matrix does not provide for any fair valuation of equity upside or to consider equity value as part of upfront consideration. Adjudicating Authority has wrongly noted in Para 8.19 that the evaluation criteria considered the equity upside offered to the financial creditors within 6 months as upfront cash. It is submitted that application of Intervention filed by Jindal Power Limited need to be rejected since no application was filed by Jindal Power Ltd. before the Adjudicating Authority and at this stage in this appeal, the Jindal Power Ltd. cannot be allowed to intervene or to seek any relief in its intervention application. 35. Learned Counsel for the Intervenor, Jindal Power Limited submits that the JPL's Resolution Plan is among the Plans found feasible and viable by the Process Advisor. The objective of the IBC is value maximisation. The process carried out by the RP has not been transparent, was filled with material irregularities and placed incomplete Financial Data before the CoC. Jindal Power Limited prays that this Tribunal may be pleased to allow Ji....
X X X X Extracts X X X X
X X X X Extracts X X X X
....yers have been made: "a) to pass an order directing the First Respondent to serve a complete copy of the Plan Approval Application, along with all the annexures to the Applicant; b) to defer the pronouncement of orders in the Plan Approval Application until the adjudication and disposal of the present Application; c) to grant liberty to the Applicant to file its objections in the Plan Approval Application, if any, pursuant to reviewing the Plan Approval Application; d) to keep the Plan Approval Application in abeyance until the Applicant has reviewed the Plan Approval Application and filed its objections (if any) in the said Application." 40. The Torrent Power Limited was also one of the Resolution Applicant who has submitted the Plan, which Plan was considered and voted and not approved. 41. Before we proceed to further consider the submissions, it is necessary to notice the averments made in I.A. 3399/2023. In the application filed by Torrent Power Limited it is stated that the email was received from RP, that the Resolution Plan submitted by the SEML has been approved, although it received the information on 20.06.2023 but did not choose to file any objection or applic....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Bidder during the course of the Negotiation Process and that the Applicant was the second highest bidder during the course of the Negotiation Process. In light of these fact, the Second Respondent at best offered the third highest offer in terms of the Key Commercial Terms submitted by it during the course of the Negotiation Process. 5.42 It is submitted that during the Negotiation Process, the commercial offer made in the H1 Bid was displayed to the Resolution Applicants. The Applicant recollected that entire commercial offer of the Applicant was proposed to be paid by way of upfront payment of INR 2,000 Crores (including CIRP Costs) without consisting of any deferred payment component. The Applicant also recollected that H1 Bid proposed aggregated to a total commercial offer of INR 2,005 Crores (but the identity of the H1 Bidder was not disclosed to the Applicant). However, from the information displayed to the Resolution Applicants pursuant to the completion of the Negotiation Process, it was evident that the H1 Bid proposed an upfront payment of approximately INR 1,500 Crores (including CIRP Costs) and a deferred payment component of approximately INR 400 Crores. In other wo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er. In paragraph 5.47, following has been pleaded: "5.47 It is reiterated and humbly submitted that it is inexplicable that the Resolution Plan submitted by the Second Respondent was approved by the CoC despite the Second Respondent offering at best the : (a) third highest Aggregate Offer in its Final Resolution Plan submitted on 28 April 2023; and (b) the third highest commercial offer during the Negotiation Process. In view of these facts, it appears to the Applicant that the Second Respondent had an additional opportunity to modify and increase its commercial offer during the course of the CIRP such that the commercial offer of the Second Respondent becomes higher than that offered by the Applicant; even though to the best of our knowledge, neither the Applicant nor any other Resolution Applicant was given the opportunity to : (a) increase/modify the Key Commercial Terms, including the upfront cash payment proposed to be paid to the creditors of the Corporate Debtor post the Negotiation Process; or (b) increase/modify the Final Resolution Plan pursuant to their submission on 28 April 2023. This is (a) in clear contravention of the resolution plan process and the terms expressl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....filed by Vantage Point Asset Management Private Limited Both the Applicant are unsuccessful Resolution applicants in the Resolution Process of the Corporate Debtor and seeks direction for consideration of their plan afresh after providing another opportunity to offer better value. The Counsel for the Applicants takes us through the documents and pleads that there seems to a bias in evaluation process at the far end. The Counsel for the Applicant in IA 3336/2023 submits that its offer for higher amount, than offered by Successful Resolution Applicant (SRA), given to RP, was not considered after approval of plan of Successful Resolution Applicant, after approval of plan by CoC. The Counsel for Applicant in IA 3399/2023 further submits that the revised financial proposal of SRA ought not to have been considered, as no revision could have been done or permitted. Alternatively, it was argued that they were not afforded equal opportunity to do so. The Counsel for Applicant in 3399/2023 submits that it is ready to furnish non-disclosure undertaking and to abide by the confidentiality of information, which may come to him, if the re-bid is ordered. 3. Heard the Counsel. The RP is directed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... financial proposals placed before CoC before the voting, and why the value of upside equity website was not considered as a part of upfront amount while the valuation criteria considered the equity upside offered to the financial creditor within 6 months as upfront cash. 8.20 We find that the BDO has considered amount paid towards replacement of BGs as money being offered to Secured Financial Creditors, which is not in conformity with the minutes of meeting dated 06.05.2023, which recorded the deliberations taken place at that meeting as "The representative of SBI mentioned that all the Bank Guarantees are secured by 100% cash margin. Bank Guarantees do not form part of the claim since the guarantees are not considered exposure on the company because of 100% cash margin available to secure the BGs. While submitting the claim to RP, SBI has duly mentioned this fact in the claim form. In addition, there are a number of judgements and as per which, as long as the liability of BG issuing bank remains, no one can lay it's claim against the margin money". We feel that the amount offered towards replacement of the BG cannot form part of the upfront amount offered to the financial credi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t No. 1 and the legal advisor of the Respondent No. 1 did not provide any opportunity to the Respondent No. 1 or the legal advisor of the Respondent No. 1 to clarify the correct factual position. The issues pertaining to treatment of BGs/ Margin Money, scoring as per the evaluation matrix and the analysis of BG margin were never raised argued upon or tested before the Hon'ble NCLT during the hearings conducted in the Plan Approval IA or in the application filed by TPL and Vantage. No clarifications were sought by the Hon'ble NCLT from the RP or the CoC in this context. Thus, the observations made by the Hon'ble NCLT in this context have not been made in accordance with law." 54. The CoC has also filed a detailed Reply to the appeal. CoC in its Reply filed in SEML's appeal, has also pleaded that the findings in the impugned order are without any foundation in the written or oral pleadings made by the parties. In paragraph 10.4, 10.4.1, 10.4.2 and 10.4.3 following has been pleaded: "10.4 The findings in the Impugned Order are patently illegal as they have been passed without any foundation in the written or oral pleadings made by the parties. 10.4.1 It is submitted that the find....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as neither highlighted in any of the pleadings nor argued before the Ld. Adjudicating Authority. Even IA 3399 merely states Torrent's allegation that it was offering the highest upfront amount without going into the issues relating to treatment of margin money, bank guarantee or equity upside." 55. From the materials on record and pleadings of the party as noted above, it is clear that order passed by the Adjudicating Authority on 06.10.2023 is on the findings which are not based on any pleadings raised by Torrent Power Limited and Vantage Point Asset Management Pte. Ltd. in their application. Torrent Power Limited and Vantage Point Asset Management Pte. Ltd. were unsuccessful Resolution Applicants and they filed the applications subsequent to the order was reserved in the Plan approval application. Before the Adjudicating Authority for the first time the applications I.A. 3336/2023 & I.A. 3399/2023 listed on 07.08.2023 and on the same day, orders were reserved on the said applications, neither any notice was issued in the application nor any opportunity was given to file a Reply to the applications by the RP, CoC or SRA. The basis of the order of the Adjudicating Authority is tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rinciples of Natural Justice. Consideration of any material subsequent to closing of the hearing without giving opportunity to other side to comment or to give a response is bound to prejudice the interest of other sides. 61. Thus, we find substance in the submission of the Counsel for the Appellant that process adopted by the Adjudicating Authority in proceeding to allow I.A. 3399/2023 has violated the Principles of Natural Justice. No notice was issued in the application, no reply was called on the applications and while allowing the said application the entire plan which was approved has been remitted for reconsideration. 62. We are thus satisfied that the impugned order deserves to be set aside on the ground of violation of Principles of Natural Justice. 63. One more submission which has been pressed on behalf of SEML is that the Adjudicating Authority traversed beyond its limited jurisdiction under the IBC to interfere with commercial wisdom of the CoC in approving the Resolution Plan. 64. Learned Counsel for the Appellant has also taken exception to the grounds on basis of which the Adjudicating Authority embarked on the enquiry to analyse various financial proposals and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ated to initiate liquidation process under Section 33(1) of the I&B Code. The legislature has not endowed the adjudicating authority (NCLT) with the jurisdiction or authority to analyse or evaluate the commercial decision of CoC much less to enquire into the justness of the rejection of the resolution plan by the dissenting financial creditors. From the legislative history and the background in which the I&B Code has been enacted, it is noticed that a completely new approach has been adopted for speeding up the recovery of the debt due from the defaulting companies. In the new approach, there is a calm period followed by a swift resolution process to be completed within 270 days (outer limit) failing which, initiation of liquidation process has been made inevitable and mandatory. In the earlier regime, the corporate debtor could indefinitely continue to enjoy the protection given under Section 22 of the Sick Industrial Companies Act, 1985 or under other such enactments which has now been forsaken. Besides, the commercial wisdom of CoC has been given paramount status without any judicial intervention, for ensuring completion of the stated processes within the timelines prescribed by....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tors albeit by requisite per cent of voting share to approve the resolution plan; and in the process authorise the adjudicating authority to reject the approved resolution plan upon accepting such a challenge. That is not the scope of jurisdiction vested in the adjudicating authority under Section 31 of the I&B Code dealing with approval of the resolution plan." 67. Next judgment relied by learned Counsel for the Appellant is Pratap Technocrats Pvt. Ltd. vs. Monitoring Committee of Reliance - (2021) 10 SCC 623, wherein the Hon'ble Supreme Court in paragraph 44 laid down following: "44. These decisions have laid down that the jurisdiction of the adjudicating authority and the appellate authority cannot extend into entering upon merits of a business decision made by a requisite majority of the CoC in its commercial wisdom. Nor is there a residual equity based jurisdiction in the adjudicating authority or the appellate authority to interfere in this decision, so long as it is otherwise in conformity with the provisions of IBC and the Regulations under the enactment." 68. Next judgment relied on is Jaypee Kensington Boulevard Apartments Welfare Association and Ors. Vs. NBCC (India)....
X X X X Extracts X X X X
X X X X Extracts X X X X
....no scope for interference with the commercial aspects of the decision of the CoC; and there is no scope for substituting any commercial term of the resolution plan approved by the Committee of Creditors. If, within its limited jurisdiction, the adjudicating authority finds any shortcoming in the resolution plan vis-à-vis the specified parameters, it would only send the resolution plan back to the Committee of Creditors, for re-submission after satisfying the parameters delineated by the Code and exposited by this Court.' (emphasis supplied)" 70. In Kalparaj Dharamshi v. Kotak Investment Advisors Ltd. - (2021) SCC OnLine SC 204, again the same proposition has been reiterated by the Hon'ble Supreme Court, which is as follows: "172. No doubt, it is sought to be urged, that since there has been a material irregularity in exercise of the powers by RP, Nclat was justified in view of the provisions of clause (ii) of sub-section (3) of Section 61 of the I&B Code to interfere with the exercise of power by RP. However, it could be seen, that all actions of RP have the seal of approval of CoC. No doubt, it was possible for RP to have issued another Form 'G', in the event he found, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a Plan, which has been approved by the CoC, any subsequent offer by any entity, who did not participate in the process earlier, cannot be entertained." 72. Learned Counsel for the Appellant further relied on the judgment of this Tribunal in PNC Infratech Limited vs. Deepak Maini and Ors. - Company Appeal (AT) (Insolvency) No.143 of 2020, where this Tribunal held that there is no mechanism under the Code that gives right to the Unsuccessful Resolution Applicant to challenge the decision of CoC, unless the Plan is in contravention of any law being in force or there is material irregularity in the powers exercised by the RP. In paragraph 39, following has been held : "39. Further, there is no such mechanism under the Code that gives the right to the Unsuccessful Resolution Applicant to challenge the score granted as per the evaluation matrix prepared by the CoC and the Resolution Professional as per the provisions of CIRP Regulations. Though, Section 61 of the Code provides Appeals against the orders of the Adjudicating Authority and Sub-section (3) thereof provides an Appeal against an order approving a Resolution Plan under Section 31 which may be filed on the following grounds ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....allenge to the Plan by the Operational Creditor was on the ground that the Resolution Plan has not taken care of the total outstanding dues of the Appellants and out of the total dues 5% of the principal amount has been allowed in favour of the Appellant. This Tribunal by the impugned judgment has dismissed the Appeal and affirmed the order of the Adjudicating Authority. Following observations were made in paragraph-6 of the judgment, which are as follows: "6. In these cases as we find that in spite of receipt of their claim much beyond the period prescribed under the I & B Code, the 'Resolution Plan' has taken care of the claim of the appellants, we are not inclined to interfere with the order passed by the Adjudicating Authority. In a particular case, what should be the percentage of claim amount payable to one or other 'Financial Creditor' or 'Operational Creditor or 'Secured Creditor' or 'Unsecured Creditor' can be decided by the Committee of Creditors based on facts and circumstances of each case. In absence of any discrimination or perverse decision, it is not open to the Adjudicating Authority or this Appellate Tribunal to modify the plan." 75. The observation that in ab....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aterial factor which otherwise may appear to be of another procedural requirement, has its significant bearing and cannot be ignored as mere technicality. It is concerning want of presentation of finally revised plan to the Committee of Creditors before being presented to the adjudicating authority. 160. As noticed hereinbefore, commercial wisdom of CoC is given such a status of primacy that the same is considered rather a matter non-justiciable in any adjudicatory process, be it by the adjudicating authority or even by this Court. However, the commercial wisdom of CoC means a considered decision taken by CoC with reference to the commercial interests and the interest of revival of the corporate debtor and maximisation of value of its assets. This wisdom is not a matter of rhetoric but is denoting a well-considered decision by the protagonist of CIRP i.e. CoC. As observed by this Court in K. Sashidhar [K. Sashidhar v. Indian Overseas Bank, (2019) 12 SCC 150 : (2019) 4 SCC (Civ) 222] , the financial creditors forming CoC "act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. The opinion on the subject-matter express....
X X X X Extracts X X X X
X X X X Extracts X X X X
....licant was approved, however, approval came with a significant condition that in view of the dissent by some of the Financial Creditor, the Plan would be sent back to the creditors for further revision, so as to make it compliant with Section 30, sub-section (2), which provides that amount paid to the dissenting Financial Creditor will not be less than the amount to be paid to such creditors in accordance with sub-section (1) of Section 53 of the Code. The revised Resolution Plan was submitted incorporating the changes, however, the revised Plan was not put before the CoC for approval, which ground was taken by the Appellate Tribunal in interfering with the order of the Adjudicating Authority. The Hon'ble Supreme Court affirmed the decision of the Appellate Tribunal. In paragraph 168, as noted above, the Hon'ble Supreme Court noted that in event the Plan, which was modified was not put before the CoC, there will be breach of requirement of placing the Plan in its final form before the CoC. The Hon'ble Supreme Court further observed that if the process adopted in the present matter is approved, the very scheme of the CIRP would be left open-ended and would be capable of inviting arb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d financial experts, who scan, appraise evaluate the material as available for its usefulness, with caution and scepticism. Inadequacies and paltriness of data are accounted and chronicled for valuations and the risk involved. It is rather strange to argue that the superspecialists and financial experts were gullible and misunderstood the details, figures or data....." 79. One more judgment, which has been relied on behalf of Torrent Power Limited is judgment of this Tribunal in Ajay Gupta vs. Mr. Pramod Kumar Sharma, RP of M/s. B.B. Foods Pvt. Ltd.- (2022) SCC OnLine NCLAT 93, paragraph 3 of the above judgment is as follows: "3. The grievance of Mr. Abhishek Anand, Advocate is that, the modifications of the Applicant's plan were known to everyone hence no opportunity ought to have been given to others to modify their plan. We do not find any substance in the above submissions. The Adjudicating Authority has rightly observed that for not to disturb level playing field, the other resolution applicants were also permitted to give modifications of the resolution plan." 80. In Ajay Gupta's case, the Adjudicating Authority permitted the Resolution Applicant, whose Plan was bein....
X X X X Extracts X X X X
X X X X Extracts X X X X
....resent case, discrimination was made qua the other Resolution Applicant, since the Appellant Sarda was given an opportunity in guise of seeking clarification to pay Rs.240 crores upfront payment, which was earlier not proposed. The said submission of discrimination was also pressed before the Adjudicating Authority at the time of hearing of the Application. The RP and the CoC have pleaded in their replies that under the decision of the CoC, a clarification was asked from four Resolution Applicant by email dated 08.05.2023 to give certain clarification. The email itself contemplated that clarification should be given by way of an Addendum. The Resolution Applicants, who were asked the clarification, had provided the clarification. The CoC during submission has rightly submitted that the said clarification was asked under the directions of the CoC, which is fully permissible as per the provisions of RFRP and Process Note, which empowers the CoC to ask for clarification from any Resolution Applicant. It is submitted that clarification was asked from all Resolution Applicants and there cannot be any modification of any financials by clarification and no modification was made to the ear....
X X X X Extracts X X X X
X X X X Extracts X X X X
....laid down : "10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with." 85. The law laid down by the Hon'ble Supreme Court above, clearly indicate that distinction has to be maintained while terming a decision as perverse. A minor infraction of procedural or any other similar reasons are not sufficient to term a decision as perverse. We have already noticed the judgment of the Hon'ble Supreme Court in M.K. Rajagopalan (supra), where Hon'ble Supreme Court has observed that commercial wisdom of CoC would come into existence and operation only when all the relevant information is available before it and is duly deliberated upon by all its Members. Thus, in event, all relevant materials are available before the CoC, which is deliberated, no perv....