TaxTMI 
TaxTMI 
2025 (2) TMI 806
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....ed by National Company Law Tribunal, Division Bench, Court No.1, Kolkata, rejecting IA (IB) No.1325/KB/2023 filed by the Appellant and by another order of the same date allowing IA (IB) No.1407/KB/2023 approving the Resolution Plan. 2. Brief facts of the case necessary to be noticed for deciding both the Appeal(s) are: (i) By an order dated 22.07.2022, Corporate Insolvency Resolution Process ("CIRP") proceedings against the CD commenced. In pursuance of the decision of the Committee of Creditors ("CoC") Form-G was published on 23.10.2022 and the last date for receiving of Expression of Interest ("EoI") was 08.11.2022. In pursuance of Form-G, several persons filed their EoIs. However, in pursuance of RFRP issued by Resolution Professional ("RP") three Resolution Plans were received. (ii) In the 10th Meeting of CoC held on 13.01.2023 three Plans were noticed to be received. The RP undertook to revert to the CoC after verifying whether the Plans are compliant. In the next Meeting of CoC on 30.01.2023, it was noticed in the Minutes that some new interested parties have approached the State Bank of India ("SBI") after last date of EoI. The CoC deliberated whether to....
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....en allowed. (ix) Aggrieved by the above orders, Company Appeal (AT) (Ins.) No.228 of 2025 has been filed challenging the order passed in IA 1325/KB/2023 and Company Appeal (AT) (Ins.) No.229 of 2025 has been filed challenging the order dated 20.12.2024 passed in IA 1407/KB/2023 approving the Resolution Plan. 3. We have heard Shri Gaurav Mitra, learned Counsel appearing for the Appellant; Shri Krishnendu Dutta, learned Senior Counsel appearing for Respondents; Shri Abhijeet Sinha, learned Senior Counsel appearing for Successful Resolution Applicant ("SRA") and learned Counsel for RP. 4. Shri Gaurav Mitra, learned Counsel for the Appellant challenging the order submits that the Form-G having been published on 23.10.2022 and after the Form-G, RFRP was also issued and Plans were received, which were discussed in the Meeting held on 13.01.2023. A decision was taken on 30.01.2023 to extend the timeline, which timeline was extended, permitting Pinax - SRA to participate, which is nothing but a backdoor entry. The Form-G was required to be published afresh in the event the CoC considered permitting others to participate. The procedure adopted by CoC and RP is contrary to Reg....
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....again considered and discussed in 21st CoC Meeting held on 25.07.2023 and the CoC did not accept the proposal. The Plan was considered and was not accepted. The reasons are recorded in the Minutes of the CoC. The CoC was fully entitled to consider the Plan and it being not found viable, no error has been committed by the CoC. The Appellant's intent was only to delay the CIRP and he had neither any interest nor capacity to submit a Resolution Plan. The time chosen by the Appellant itself indicate that the Appellant was not serious. 6. Shri Abhijeet Sinha, learned Senior Counsel appearing for the SRA submits that the Appellant having participated in all CoC Meeting and was well aware of deliberations including financials of the Resolution Applicant, he is not entitled to make a request for submission of the Resolution Plan, which opportunity he never availed. The Resolution Plan, which was submitted by the Appellant was also considered and found that it is not backed by any financial proposal, since the letter which was submitted had already expired. It is submitted that CoC in its commercial wisdom has considered the Plan of the Appellant and has approved the Resolution Plan of t....
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....ch clause has been quoted in paragraph 13.7 of the impugned order, which is as follows: "13.7 Similar conditions are there in Request for Resolution Plan as provided below: "The Resolution Professional may, with directions from and/or approval of the Committee of Creditors, may in its absolute discretion, but without being under any obligation to do so, (i) update, amend or supplement the information, assessment or assumptions contained in this document; (ii) amend, modify, or terminate the procedures set out herein, including extending any timelines or deferring from time to time, any of their powers against any Resolution Applicant." 10. The present is a case where after issuance of Form-G on 23.10.2022, it was noticed by the CoC that after submission of EoI, some person who had not submitted EoI, whether fresh Form-G be issued or timeline be extended, which was deliberated in the 11th CoC Meeting held on 30.01.2023. 11. In the 12th CoC Meeting held on 09.02.2023, a discussion took place regarding next steps, which discussion took place in the presence of the Appellant, who participated in the CoC Meeting. In the 12th CoC Meeting, the CoC decided to extend....
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....new interested parties to submit their Expression of Interests and Resolution Plan so that all interested parties are allowed a fair chance. It was decided that the existing Resolution Applicants who had shared their Resolution Plan will also be given an opportunity to re-submit their Resolution Plans. The RP agreed to the same and proposed condonation of delay by the CoC members for submission of EOI and resolution plans so that he can accept fresh EOIs and Resolution Plans as decided. Both the CoC members approved the condonation of delay for submission of EOI and Resolution Plans. The RP and the CoC members discussed and agreed upon the following revised timelines for inviting EOIs and submission of Resolution plans:- Revised Last date for submission of EOI 15.02.2023 Revised Final date for submission of Resolution plans both the existing RAs and new applicants 27.02.2023 The RP agreed that a fresh communication with these new timelines shall be made to all interested parties. 12. In pursuance of the Minutes of the CoC dated 09.02.2023, the RP invited all interested parties to submit EoI. The Appellant has never submitted any EoI in purs....
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....ely the Company might slip into liquidation. Under such circumstances I hereby request you to allow me to offer the amount for resolution/settlement of the Company, either equivalent and/or slightly better than the offer presently under your consideration. I will remain thankful for your kind cooperation and support. Thanking you, Yours faithfully, Sd/- Sanjeev Kumar Agarwal (Suspended Director of 'Indian Pulp & Paper Pvt. Ltd.')" 15. In the 20th Meeting of the CoC held on 14.07.2023, the request received from the Appellant on 13.07.2023 came to be considered. It is noticed in the Minutes that after Pinax Group left, the Appellant made a request before the CoC to submit a Resolution Plan, which request has been noticed and dealt with in the Minutes of CoC dated 14.07.2023, which is as follows: "After Pinax Group left, Mr. Sanjeev Agarwal placed his request before the CoC to submit a resolution plan / settlement plan under Section 12A of the code and seeking condonation of delay on grounds that earlier he did not have requisite funds for this purpose which he has now managed to gather after his request and pe....
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....ition plan of Mr. Agarwal and in any case, it is an expired offer. Both the CoC members and the RP concurred on this point. The CoC member representing SBI further mentioned that such act has been done by Mr. Agarwal to hijack the CIR process, and as such he has mentioned in the petition filed praying the Hon'ble NCLT to declare the CIRP as void. This is done with the intention to distract the resolution in progress. This raises enough doubt on his integrity and intentions of submitting a plan. SBI representative mentioned that they were already convinced that his inability was there and that he is not a serious contender for submission of a resolution plan. Now with the submission of this, it becomes even more evident that he is relating a letter which cannot be linked to him in any manner whatsoever. The CoC members concurred with Mr. Gole's opinion that the letter holds no sanctity. Hence, the CoC members decided not to proceed any further with the offer as the supporting documents provided stand infructuous. Director Mr Sanjeev Agarwal was asked by the RP team to join in for the meeting." 17. The above discussion in the Meeting of the CoC clearly indicate t....