TaxTMI 
TaxTMI 
2024 (7) TMI 761
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Appeal(s) have been filed by the same Appellants, i.e. Shareholder/ Promoter and Suspended Director of the Corporate Debtor, challenging orders dated 26.04.2023 passed by National Company Law Tribunal, Mumbai Bench, Court-II. 2. Company Appeal (AT) (Insolvency) No. 1127 of 2024 has been filed challenging order dated 26.04.2024 passed in IA No.111 of 2024 and part of order dated 26.04.2024 passed in IA No.5606 of 2023 (paragraph 21 and first line of paragraph 22). Company Appeal (AT) (Insolvency) No. 1129 of 2024 has been filed challenging the order dated 26.04.2024 passed by Adjudicating Authority in IA No.2830 of 2023 filed by Resolution Professional ("RP"), by which order the Adjudicating Authority approved the Resolution Plan in the Corporate Insolvency Resolution Process ("CIRP") of the Corporate Debtor. Aggrieved by the aforesaid orders, the Appellants have come up in these two Appeal(s). 3. Brief facts necessary to be noticed for deciding these Appeal(s) are: (i) The CIRP against the Corporate Debtor - V Hotels Ltd. commenced by Adjudicating Authority on an Application filed by Asset Reconstruction Company (India) Ltd. ("ARCIL") - the Financial Creditor. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me line as of ARCIL and its claim also be redetermined accordingly. The RP filed an IA No.5606 of 2023 praying that Adjudicating Authority may permit the RP to redetermine the claim of the Pegasus in the same line. (vi) In pursuance of the order of this Tribunal dated 21.11.2023, the Successful Resolution Applicant ("SRA") submitted an Addendum to the CoC, as directed by this Tribunal, stating that after redetermination of the claim of ARCIL, there is no change in the financial proposal and the terms of Resolution Plan does not require any change. It was further stated in the Addendum that inter se dispute between SRA and secured Financial Creditor, can be decided by the CoC, which shall be honoured by the SRA. The Addendum dated 09.12.2023 came for consideration before the CoC in 32nd Meeting dated 13.12.2023, which Addendum as approved by the CoC was placed before the Adjudicating Authority for consideration. (vii) The Appellant filed IA No.111 of 2024 challenging the Addendum dated 09.12.2023 as well as Minutes of the CoC held on 13.12.2023, approving the Addendum. The Appellant prayed to set aside the Minutes of the Meeting of the CoC as well as Addendum. The ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en inter se between the secured Financial Creditors and in no manner the Appellants rights are affected. It is submitted that Appellants cannot have any complaint with regard to approval of Resolution Plan and approval of Addendum, since they are not going to be affected in any manner. The learned Senior Counsel has referred to the order of Hon'ble Supreme Court dated 10.05.2024, which was passed in the Appeal filed by the Appellant against the order of this Tribunal dated 21.11.2023, where the Hon'ble Supreme Court has clearly held that redetermination of claim shall effect only creditors of the same class. The order of Hon'ble Supreme Court finally settled the issues, which cannot be reopened in this Appeal. 7. We have considered the submissions of learned Counsel for the parties and have perused the records. 8. The issue, which has been sought to be raised in these Appeal(s) is regarding redetermination of claim of Pegasus. We have already noticed above that with regard to the redetermination of the claim of ARCIL, another Financial Creditor, the matter has travelled to this Tribunal in Company Appeal (AT) (Insolvency) Nos.1114-1115 of 2023, which Appeal(s) were filed agai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....avaty The Resolution Professional of V Hotels Limited Deloitte India Insolvency Professional LLP 27th Floor, Tower 3, One International Centre, Elphinstone (West), Mumbai-400 013. Email: [email protected] Dear Sir, Subject: Addendum to the Resolution Plan dated 20th December 2022, as revised on 5th June 2023, approved by the Committee of Creditors of the Corporate Debtor ("COC") on 22nd June 2023 (the "Resolution Plan") and pending approval of Hon'ble National Company Law Tribunal, Mumbai Bench ("NCLT") in I. A. No. 2830 of 2023. This is in furtherance to the liberty granted by the Hon'ble National Company Law Appellate Tribunal in its order dated 21st November 2023 passed in Company Appeal No. 1114- 1115 of 2023 and your email dated 4th December 2023 in furtherance thereto. We note that the claims of the Secured Financial Creditors have been recalculated and the admitted outstanding claim amount is Rs. 1,143,56,33,920/- (Rupees One Thousand One Hundred Forty- Three Crore Fifty-Six Lakh Thirty-Three Thousand Nine Hundred Twenty Only). In terms of the Resolution Plan, the total amount payab....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to submit the same with the Hon'ble NCLT in terms of the Order. RP also informed the CoC that since one of the CoC member Full Moon Creative Services Pvt. Ltd. is not present in the CoC meeting, the agenda item for approval of the addendum would be put to e-voting in accordance with the provisions of the Code and the CIRP regulations. In addition to above, legal advisors to the Arcil and Pegasus stated that for the distribution of resolution plan value in terms of approved resolution plan read with the above addendum and other related documents, it is suggested that for the purposes of computation of the distribution ratio for amounts proposed to secured financial creditors, the outstanding amounts of the secured financial creditors to be calculated with 14.85% as the interest rate, compounded with monthly rests and the inter se proportion should be accordingly determined. The Secured financial creditors discussed and were in consensus to determine the distribution ratio in terms of the debt due in terms of the calculations at 14.85% as the interest rate, compounded with monthly rests for Arcil and Pegasus. The Legal Advisor to the RP confirmed that in terms of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d June 05, 2023 (along with clarifications and undertakings) with the Adjudicating Authority to be considered along with the application for approval of the resolution plan. RESOLVED FURTHER THAT in terms of the resolution plan dated June 05, 2023 (along with clarifications and undertakings) submitted by Macrotech Developers Limited read with addendum dated December 09, 2023 and pursuant to section 30(4) of the Insolvency and Bankruptcy Code, 2016, the committee of creditors of the Corporate Debtor hereby resolves to distribute the amounts proposed for secured financial creditors under the successful resolution plan amongst the secured financial creditors (Arcil and Pegasus respectively) in the proportion of 65.91:34.09." 11. The Resolution was put to e-voting and was approved by 97.34% votes. We do not find any error in the Addendum or the Resolution of the CoC, approving the same. The claim of Pegasus was also redetermined as per agreed rate of interest @ 14.85%. In fact, after the order of this Tribunal dated 21.11.2023 in the Appeal filed challenging the determination of rate of interest of ARCIL, the Pegasus, itself sent an email dated 27.11.2023 to the RP praying ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g as of Arcil. Therefore, Pegasus hereby grants its consent to you to do redetermination of its claim of dues with contractual rate of interest as agreed by the Borrower in the original loan document... I (as assignee of Indian Bank)) ("Pegasus") is required to file a revised claim in view of the above-mentioned order of Hon'ble NCLAT dated 21.11.2023."" 12. The Adjudicating Authority vide its order dated 26.04.2024 passed in IA No.5606 of 2023 has, in fact, approved and accepted the prayer of RP for reverification of the claim of the Pegasus. As noted above, in the Meeting of the CoC held on 13.12.2023, reverified claim of Pegasus was placed before the CoC, thus, on the request of Pegasus, the RP has also reverified the claim and placed the same before the CoC. The CoC was, thus, well aware that after reverification of the claim of Pegasus, now it is only Rs.321.51 crores. The CoC took the view that there is no difference in payment proposed to the Financial Creditors, hence, the financials of the Resolution Plan are not to be changed in any manner. 13. We may also notice the order of the Hon'ble Supreme Court dated 10.05.2024 passed in Civil Appeal Nos.1705-170....
X X X X Extracts X X X X
X X X X Extracts X X X X
....all prepare an Addendum to be placed before the CoC within a period of two weeks thereafter. The Resolution Professional should compute the claim of the ARCIL on the basis of rate of interest as indicated above.(...)" Thus, it is clear that the Resolution Professional has to undertake the exercise to verify and compute the principal amount payable by the Corporate Debtor to the respondent no. 2 - Asset Reconstruction Company (India) Limited. We are informed that the Resolution Plan has already been approved by the Committee of Creditors. We clarify that the re-working/verification in terms of the impugned judgment may not have any impact on the Resolution Plan or its implementation. It may have the effect of re-determination of the amount payable inter-se the similar class of creditors. However, it will be open to the appellants to challenge the approval of the Resolution Plan and raise all other issues before the appropriate authority in accordance with the law. The appeals are disposed of in the above terms. Pending application(s), if any, shall stand disposed of. .." 14. The Hon'ble Supreme Court has also held that re-working/ veri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....19) (2019) the Hon'ble Apex Court held that if the CoC had approved the Resolution Plan by the requisite percent of voting share, then as per section 30(6) of the Code, it is imperative for the Resolution Professional to submit the same to the Adjudicating Authority. On receipt of such a proposal, the Adjudicating Authority is required to satisfy itself that the Resolution Plan, as approved by the CoC, meets the requirements specified in Section 30(2). The Hon'ble Apex Court further observed that the role of the NCLT is 'no more and no less'. The Hon'ble Apex further held that the discretion of the Adjudicating Authority is circumscribed by Section 31 and is limited to scrutiny of the Resolution Plan 'as approved' by the requisite percent of voting share of financial creditors. Even in that enquiry the grounds on which the Adjudicating Authority can reject the Resolution Plan is in reference to matters specified in Section 30(2) when the Resolution Plan does not conform to the stated requirements. The legislature, consciously, has not provided any other ground to challenge the commercial wisdom of the individual financial creditors or their collective decision before the Adjudicati....