TaxTMI 
TaxTMI 
2025 (5) TMI 1838
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....cate with Mr. Arijit Mazumdar, Ms. Akanksha Kaushik, Mr. Shambo Nandy, Arjun Bhatia, Ms. Shefali Munde, Advocates for R-5/SRA JUDGMENT ASHOK BHUSHAN, J. This Appeal by an unsuccessful Resolution Applicant has been filed challenging the order dated 22.01.2025 passed by National Company Law Tribunal, Principal Bench, New Delhi in IA No.5176/2024 filed by the Appellant as well as IA No.52/2024 filed by Resolution Professional ("RP") for approval of Resolution Plan. By the impugned order dated 22.01.2025, the Adjudicating Authority has rejected IA No.5176 of 2024 filed by the Appellant raising objection to the approval of Resolution Plan and allowed the Application - IA No.52 of 2024 praying for approval of Resolution Plan. 2. Brief facts necessary to be noticed for deciding the Appeal are : i. Corporate Insolvency Resolution Process ("CIRP") of the Corporate Debtor ("CD") - Helios Photo Voltaic Ltd. commenced by an order dated 11.01.2024 on an Application filed by Financial Creditor - National Asset Reconstruction Co. Ltd. ("NARCL"). ii. In the CIRP of the CD, the RP after approval of the Committee of Creditors ("CoC") issued request for Resolution Plan o....
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....he applicant/ petitioner is so advised and it chooses to make renewed or better offer, it is at liberty to do so. vii. On 07.10.2024, the Appellant sent an email to the CoC with its enhanced proposal to the tune of Rs.120 crores payable within 30 days. In 17th CoC Meeting held on 14.10.2024, the CoC discussed the email sent by the Appellant with its enhanced offer. The CoC decided to strictly adhere to the provisions of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "IBC") viii. On 18.10.2024, the Appellant filed IA No.5176 of 2024 praying for following reliefs: "a) Allow the instnt Application. b) Reject the Resolution Plan as approved by Respondent Nos. 2, 3 and 4 (Committee of Creditors) in its meeting in the ongoing Corporate Insolvency Resolution Process of M/s Helios Photo Voltaic Ltd. c) Direct the Respondents to consider and approve the revised offer submitted by the Applicant vide e-mail dated 07.07.2024 d) Pass any such or further orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the instant case." ix. The Application for approval of Resolution ....
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.... reference has also made to provisions of Competition Commission Act, 2002, Section 5. The Application was filed by the Applicant on 07.02.2025, was directed to be listed on different dates along with Company Appeal (AT) (Ins.) No.179 of 2025, which were heard on 28.03.2025 and order in IA No.1083 of 2025 was reserved. 6. We proceed to notice the submissions raised by learned Counsel for the Appellant in support of the Appeal. 7. Learned Counsel for the Appellant challenging the order dated 22.01.2025 submits that in the challenge process, the Appellant has given the highest NPV. It is submitted that object of IBC is to maximise the value of CD. The Appellant by email dated 05.09.2024 has informed that 75% of the amount shall be paid within 90 days, which was earlier informed to be paid within 364 days. It is submitted that email dated 05.09.2024 was only clarification and in no manner modified the financial proposal submitted by the Appellant. It is submitted that financial proposal submitted by the Appellant remained the same and the Appellant has only offered to pay 75% within 90 days. It is submitted that RP committed error in not placing the email dated 05.09.2024 before....
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....within one year, whereas Respondent No.5, in its Plan has submitted that entire amount shall be paid within 30 days. The revised or enhanced offer given by the Appellant could not have been considered by virtue of RFRP. Subsequent to the order of Delhi High Court, the CoC in its 17th Meeting dated 14.10.2024 discussed the enhanced offer and was of the view that CoC has to adhere to the provisions of the IBC and RFRP. The Adjudicating Authority has rightly rejected the IA filed by the Appellant and approved the Resolution Plan. 10. Learned Counsel for the SRA has also submitted that it has offered entire 99.05 crores as upfront, whereas the Appellant has offered only Rs.27.47 crores within 45 days and the remaining within 364 days. Subsequently, the Appellant sought to modify its offer vide email dated 05.09.2024, which was not permissible as per RFRP. As per the quantitative and qualitative parameters score of Evaluation Matrix, Respondent No.5 scored 51 marks, whereas the Appellant scored only 48 marks. The CoC in its commercial wisdom has considered all aspects and on the basis of e-voting approved the Resolution Plan of Respondent No.5, which had rightly not been interfered w....
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....f the e-bidding, in the 15th CoC Meeting the score of PRAs on the basis of evaluation matrix was declared. The score of the PRAs have been noticed by Adjudicating Authority in the impugned order in paragraph 14.3. Paragraph 14.3 of the impugned order is as follows: "14.3 Thereafter, the E-bidding process was conducted on 29.07.2024. In the 13th CoC meeting dated 31.07.2024 the RP updated the CoC about the conclusion of E-bidding process and presented the results before it. The CoC in this meeting agreed to grant time until 05.08.2024 to the PRAs to submit their revised resolution plan with the clarifications and the revised financial proposal. M/s GIMS and other PRAs submitted their revised resolution plan on 05.08.2024. In the 14th CoC meeting dated 12.08.2024 the RP apprised the CoC that the revised resolution plan which were received by the end of the day on 05.08.2024 were uploaded on a secured virtual network (VDR- Virtual Data Room) and the link to access the same has been shared with the CoC members. In the 15th CoC meeting dated 29.08.2024 the RP apprised CoC regarding quantitative and qualitative parameters on the CoC approved format of Evaluation Matrix (EM) and ....
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.... Resolution Amount to be paid to Secured Financial Creditors Particulars Amount in INR Lakh Upfront Payment - within 45 Days from NCLT Approval Date 2,747.70 Deferred Paymnt - Within 364 Days from NCLT Approval Date 8,239.80 Grand Total 10,987.50 17. It is relevant to notice that in the Plan submitted by Respondent No.5, the payments were to be made within 30 days, whereas in the Resolution Plan submitted by Appellant, payments were to be made 25% within 45 days and 75% within 364 days. As per the decision of the CoC, Resolution Plans were put to vote and the voting commenced on 31.08.2024 and was to completed on 07.09.2024. It was on 05.09.2024 that an email was sent by the Appellant on the subject "Revised Payment Proposal from RA", which email is as follows: "From: Haider Bangash Sent: Thursday, September 5, 2024 1:45 PM To: taveesh blackdiamondpe.in; [email protected]; pankaj [email protected]; [email protected]; [email protected]; arhawnn.sinzivnidrcl.co.in; [email protected]; [email protected]; [email protected]; [email protected] Subject: Revised Payment Proposal from RA Dear Sirs, ....
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....hi High Court being Writ Petition (C) No. 13278 of 2024, which Writ Petition was dismissed on 23.09.2024. The Adjudicating Authority in paragraph 13.5 has quoted the relevant part of the High Court order as well as the order passed in review on 04.10.2024. Paragraph 13.5 of the order is as follows: "13.5 On 23.09.2024 GIMS filed a Writ Petition bearing no. W.P. (C) No. 13278/2024 before the Hon'ble Delhi High Court seeking directions against the RP and the CoC to initiate the process of fresh voting on the resolution plan submitted by GIMS after taking into consideration clarification dated 05.09.2024. Hon'ble Delhi High Court vide its order dated 23.09.2024 dismissed the writ petition. Para 14, 15, 16 and 17 of the order dated 23.09.2024 as passed by Hon'ble Delhi High Court read as under: 14. In view of the aforesaid guidelines coupled with the relevant provisions of the IBC, which have been referred to during the course of arguments, this Court is not enjoined upon to exercise its power of judicial review and thereby usurp upon the powers of the NCLT to inquire into the commercial wisdom of the CoC whereby the Resolution Plan of the petitioner was rejected vide....
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.... Proposal from RA". When the Appellant has given proposal to pay 25% within 45 days and 75% in 364 days, upfront payment was offered only 25%, which was sought to be modified by email dated 05.09.2024 by providing second installment, i.e. 75% within 90 days. The Appellant clearly sought to modify/ enhance its proposal. Upfront payment was offered by the Appellant initially only of 25%, hence, no error can be said to have been committed by the RP and the CoC in not considering the revised payment offer made vide email dated 05.09.2024. 22. Insofar as, the revised proposal submitted on 07.10.2024, the said proposal was submitted after the Resolution Plan was approved by the CoC with requisite majority on the basis of e-voting, which concluded on 07.09.2024. In the 12th CoC Meeting held on 12.09.2024, Plans were approved and the CoC with 73.38% vote share has approved the Resolution Plan of Respondent No.5. It is well settled that the CoC is fully entitled to take its commercial decision after considering the Resolution Plans, which are up for consideration and the commercial decision taken by the CoC has rightly not been interfered by the Adjudicating Authority. The ambit and scop....