TaxTMI 
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2025 (7) TMI 1719
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.... the decision of the CoC taken in 23rd & 24th Meeting to permit R-3 as also the appellant to submit revised and compliant resolution plan for value maximisation of the assets of the corporate debtor. Aggrieved by the said order, this appeal has been filed. 2. Brief facts of the case necessary to be noticed for deciding the appeal are: i. The Corporate Insolvency Resolution Process (CIRP) of the corporate debtor M/s. Future Enterprises Limited commenced by order dated 27.02.2023. In the CIRP process, the form G was issued inviting resolution plan in respect of corporate debtor's Cluster 3 Assets. ii. Both the appellant and R-3 submitted their Expression of Interest (EoI) in response to the request to the resolution plan which was issued on 01.02.2024. Both appellant and R-3 submitted their respective resolution plan for Cluster 3 assets of the corporate debtor. iii. The Committee of Creditors (CoC) requested both the appellant and R- 3 to revise their plan. Appellant submitted a revised resolution plan of Rs.60 crore, however, R-3 did not submit any revised plan. The R-3 again sought time to file revised resolution plan but did not submit. iv. On 14.05.2024, the appellant s....
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..... It is useful to notice paragraphs 33 to 35 of the order dated 16.06.2025, which is as follows: "33. In view of the specific facts and circumstances of the case, keeping in view the provisions of the IBC and Regulations made thereunder including case laws as discussed in preceding paragraphs, I am of the view that decision of the CoC taken in 23rd and 24th meeting to permit Uniworth and also to OMPL to submit revised and compliant resolution plan for value maximization of the assets of the Corporate Debtor is not a material irregularity in conducting CIRP process, subject to following conditions : (a) OMPL should be given reasonable and effective opportunity (not merely an empty formality) for submitting revised Resolution Plan. Recourse to challenge mechanism as per Regulation 39(1A) (b) may be adopted to give equal opportunity to both, as also mentioned in para 9 of the CoC affidavit. (b) In view of the fact that Uniworth had earlier submitted non-compliant Plan, CoC is supposed to consider, examine and evaluate revised Resolution Plan of Uniworth (if submitted), carefully to find out whether Plan is compliant one and it is implementable. 34. My formal answer to the que....
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....ubject to certain conditions. 35. Subject to above, I concur the views of Ld Judicial Member." 4. Challenging the order passed by the adjudicating authority, learned counsel for the appellant submits that R-3 having not submitted a revised plan within the time allowed by the CoC, it had no jurisdiction to submit revised plan, more so, when voting on the resolution plan of the appellant has already commenced on 22.05.2024. It is further submitted that by email dated 29.05.2024, the R-3 has specifically communicated his withdrawal from the process and asked for the refund of the EMD, there was no occasion for permitting the R-3 to participate by filing the revised plan in view of the withdrawal. It is submitted that as per the RFRP negotiation, if any, could have been conducted by the CoC prior to plan having been put on the vote. When the plan has put on the vote, the CoC was obliged to complete the voting and consider the plan of the appellant. The opinion given by Ld. 3rd Member dated 16.06.2025 is not the correct position of law. Learned counsel for the appellant has relied on the judgment of this Tribunal in the matter of 'Jindal Stainless Ltd.' Vs. 'Shailendra Ajmera & Ors.'....
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....ssing its intention to withdraw from the process. Email dated 29.05.2024 is to the following effect: "Sushil Maheshwari [email protected] 10 avil, CIRP Dear Sir, As you know that we are one of the bidder for cluster 3 of Future Enterprises Limited and we have deposited earnest money of Rs. 2 cr. As per our discussion in last COC meeting, we are not agreed to revise our proposal. Now we request you that we are not interested to be in the bid, so we request you please refund deposit of Rs. 2 cr. at the earliest. Our bank details are as follows: A/c Holder Name: Uniworth Finlease Ltd Bank Name: Union Bank of India Branch: Goregaon East, Mumbai-400063 A/c Type. Current Account IFSC Code: UBIN0531707 Account No.: 317004010035020 Please do the needful and oblige. Thanking you, Yours Truly, Sushil Maheswari" 11. On 31.05.2024, another email was sent by R-3 requesting to ignore earlier request. It was mentioned in email dated 31.05.2024 that R-3 will submit a revised plan. Email dated 31.05.2024 is as follows: "Sushil Maheshwari <[email protected]> to avil. CIRP Dear Sir, Please ignore my earlier request for refund of my earnest money....
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....n Applicants or any other person to approve a Resolution Plan which has scored the highest as per the evaluation matrix and any Resolution Plan shall be approved solely on the basis of the CoC's commercial wisdom." 15. Clause 2.8.5(d) reserves the power of the CoC to approve or not to approve resolution plan which has secured the highest as per the evaluation matrix and it is solely on the basis of discretion of the CoC to approve any compliant resolution plan. The subsequent steps are provided for approval of the resolution plan. In the present case, the facts brought on the record indicate that the voting on the resolution plan of the appellant was not completed and before completion of the voting, revised plan was submitted by R-3 for an amount of Rs.85 crore that was more than Rs.75 crore of the appellant's revised plan. On 03.06.2024 before voting could be completed, application was filed before the adjudicating authority by R-3. The present is a case where voting was not complete and CoC in 24th CoC meeting took a conscious decision to consider the resolution plan of R-3. Affidavit was also filed by the CoC before the adjudicating authority where it had categorically sta....
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.... that the resolution plan of the Applicant shall be considered subject to the order of this Hon'ble Tribunal. The relevant portion of the minutes of the 24th Meeting of the COC is reproduced below: "The Chairman informed the members that, basis the voting conducted, the CoC Legal Counsel shall inform the Hon 'ble NCLT that the CoC members have decided to provide an opportunity to Uniworth to participate in the process by submitting a revised resolution plan for Cluster 3. The CoC Legal Counsel took note of the same." 16. Adjudicating authority in view of the facts on the record, had taken a decision approving the decision of the CoC to consider the revised resolution plan of R-3. Learned counsel for the appellant in support of his submission has relied on the judgment of this Tribunal in 'Jindal Stainless Ltd.' (Supra). It is submitted that in 'Jindal Stainless Ltd.' (Supra) adjudicating authority on an application directed for consideration of a plan submitted by applicant which order was challenged before this Tribunal. This Tribunal has set aside the order of the adjudicating authority. Reliance has been placed in paragraphs 25 & 26, which are as follows: "25. It is....
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.... can neither foreclose, nor prohibit negotiations. The clauses in RFRP as noticed above reserve right to the CoC to negotiate and interact with one or all resolution applicants, which obviously is subsequent act, after plan is received under regulation 39(1A). Hence, regulation 39(1A) cannot prohibit any negotiation or any further steps of the CoC. The view of the Adjudicating Authority that "no negotiation or value maximisation exercise can be individually undertaken by the CoC dehors the mandate of the regulation 39(1A)" is contrary to the scheme delineated by the Code and CIRP Regulations. The very concept of negotiation envisages dialogue between two parties. The word "negotiate" and "negotiation" are defined in the Black's Law Dictionary to the following effect : "Negotiate, vb. (16c) (1) To communicate with another party for the purpose of reaching an understanding. (2) To bring about by discussion or bargaining. (3) To transfer (an instrument) by delivery or indorsement, whereby the transferee takes the instrument for value, in good faith, and without notice of conflicting title claims or defenses." "Negotiation, n. (16c) 1. A consensual bargaining process in wh....
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....th the application filed before the adjudicating authority seeking a direction where the plan value disclosed by R-3 was Rs.85 crore. The CoC who has decided to vote on the plan of the appellant took note of the offer given by R-3 by email 31.05.2024 and revised plan given on 03.06.2024. The CoC noted the revised plan of Rs.85 crore submitted by R-3 and decided to consider the revised plan of R-3 and to give opportunity to both appellant and R-3. We have already noticed the affidavit of the CoC filed before the adjudicating authority where decision by CoC to consider the revised plan has been communicated. 20. Now coming to the submission of the appellant that R-3 vide email dated 29.05.2024 has withdrawn from participation and asked for refund of the EMD hence R-3 could not have been permitted to further continue in the process. As noted above, within two days from sending the email on 29.05.2024, on 31.05.2024 R-3 requested to ignore its email 29.05.2024 and informed that revised plan shall be submitted. Clause 1.11.1 of the RFRP prohibits any RA to amend or revise plan. When without permission of the CoC no applicant can permit to amend or revise the plan no applicant is permit....