TaxTMI 
TaxTMI 
2025 (7) TMI 1782
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....tion Ltd. JUDGMENT ASHOK BHUSHAN, J. This Appeal by an Operational Creditor of the Corporate Debtor ("CD") - Hindustan National Glass & Industries Ltd. ("HNG") has been filed challenging the orders dated 30.04.2025, 10.06.2025 and 13.06.2025 passed by National Company Law Tribunal, Kolkata Bench-2 in Intervention Petition No.5/KB/2025 filed by the Appellant. 2. Brief facts of the case necessary to be noticed for deciding the Appeal are: (i) The Corporate Insolvency Resolution Process ("CIRP") was initiated with respect to the CD on an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "IBC") filed by DBS Bank Ltd. by order dated 21.01.2021. (ii) Resolution Plans were invited in the CIRP of the CD. One of the Resolution Plan submitted in the CIRP was by AGI Greenpc Ltd. ("AGI Greenpc") and another Resolution Plan was submitted by Independent Sugar Corporation Ltd. ("Independent Sugar") The Committee of Creditors ("CoC") voted on the Resolution Plan on 28.10.2022 and approved the Resolution Plan submitted by AGI Greenpc with 98% votes. In pursuance to the approval of Resolution Plan, Letter of Intent w....
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....eturn the PBG given by AGI Greenpc. (viii) The Appellant, who was Operational Creditor had sent an email to the CoC to remove Respondent No.1 due to AFA of Respondent No.1 having been suspended w.e.f 30.01.2025. The Appellant filed Intervention Petition No.5/KB/2025 on 07.03.2025 praying for various reliefs, including the removal of the RP and setting aside the decision taken by the CoC in the Meeting dated 04.02.2025. The Intervention Petition filed by the Appellant was opposed by the RP. The Adjudicating Authority on 30.04.2025 on the Intervention Petition No.05/KB/2025 delivered two separate opinions, one by Judicial Member and another by Technical Member. Judicial Member in its opinion directed for replacement of the RP, however, prayer made by the Appellant to set aside the proceedings after 29.01.2024 was not acceded. The Technical Member expressed opinion that Appellant is not entitled to intervene in the matter and all prayers have become infructuous. (ix) There being difference of opinion, the matter was referred to third Member, who vide order dated 10.06.2025 gave its opinion. Third Member decided on two issues, which was referred to third Member, i.e.,....
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....on made by the Hon'ble Supreme Court in the order was to the effect that several material information was concealed by the SRA (AGI Greenpc). It is submitted that in the Minutes dated 04.02.2025, after the judgment of the Hon'ble Supreme Court dated 29.01.2025, a decision was taken to refund the PBG of the AGI Greenpc, without considering any relevant facts. It is submitted that in view of the non-disclosure of all relevant information by the SRA as was observed by the Hon'ble Supreme Court, there was no occasion to refund the PBG to the AGI Greenpc (SRA). Moreover, there was no reason or consideration given by the CoC, as to why and on what basis the decision was taken to refund the PBG. It is submitted that the impugned order also has not considered the above aspect of the matter, although, the Appellant in the Intervention Application has prayed for direction for not releasing of PBG in favour of the AGI 6. Shri Arun Kathpalia, learned senior Counsel appearing for CoC refuting the submissions of the Appellant submits that the Appellant is an Operational Creditor and has been creating hurdles in successful resolution of the CD, even after passing of the order dated 29.01.2025 ....
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....cating Authority dated 28.04.2023, against which Civil Appeals were filed before the Hon'ble Supreme Court. The judgment of the Hon'ble Supreme Court was delivered on 29.01.2025 in Civil Appeal No.6071 of 2023 and other connected Appeals. The operative portion of the judgment of the Hon'ble Supreme Court is contained in paragraph 155, is as follows: "155. The upshot of the above discussion are the following orders: 155.1. The AGI Greenpac's Resolution Plan is unsustainable as it failed to secure prior approval from the CCI, as mandated under the proviso to Section 31(4) of the IBC. Consequently, the approval granted by the CoC to the Resolution Plan dated 28.10.2022 without the requisite CCI approval, cannot be sustained and is hereby set aside and quashed. 155.2. Any action taken pursuant to the Resolution Plan shall stand nullified, and the rights of all stakeholders shall be restored as per status quo ante, prior to the approval of the Resolution Plan by the CoC on 28.10.2022. 155.3. Consequently, the CoC shall reconsider the Appellant's Resolution Plan and any other Resolution Plans which possessed the requisite CCI approval as on 28.10.2022 ....
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.... proviso to Section 31(4) of the Insolvency and Bankruptcy Code, 2016 ("Code"), has set aside the resolution plan submitted by AGI, as the said resolution plan was approved by the CoC before approval of the proposed combination by the Competition Commission of India ("CCI"). (ii) Accordingly, as a consequence to the aforesaid, the Hon'ble Supreme Court has also set aside the approval granted by the CoC to the AGI resolution plan. The Hon'ble Supreme Court while giving a literal interpretation to the proviso to Section 31 ( 4) of the Code has held that all resolution plans containing a proposal for a combination requiring CCI approval should receive such approval from the CCI, before placing the resolution plans for consideration of the CoC. (Ref. Paragraph 155.1 of the Majority SC Judgment) (iii) The Hon'ble Supreme Court also set aside the resolution plan submitted by AGI, while holding that the proposed voluntary divestment of the Rishikesh plant by AGI, which was proposed after the resolution plan was approved by the CoC, amounted to a modification. Accordingly, the Hon 'hie Supreme Court observed that resolution plans approved by the CoC cannot....
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....e evaluating the legal options available, including filing review petition before the Hon'ble Supreme Court, and request that no rights or interests are created in favor of any third party. CoC members requested CoC legal counsel for their views. CoC legal counsel stated that as on the date of the meeting no review petition has been filed by AGI, and there is no stay order from the Hon'ble Supreme Court. In fact, the CoC is obligated to follow the SC Judgment and reconsider the INSCO resolution plan and any other resolution plans which possessed the requisite CCI approval as on 28 October 2022 (the date on which the CoC voted upon the submitted resolution plans). The CoC members took note of the same. INSCO Letter INSCO letter was presented in the CoC meeting, which reiterated INSCO's commitment for resolution of the Corporate Debtor. CoC members took note of the same. Post discussion on the aforesaid letters, the RP requested the CoC members to discuss the way forward. CoC members discussed findings of the Hon'ble Supreme Court in the SC Judgment. It inquired from the legal counsels if the resolution plan approval applic....
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.... read along with Regulation 39(3) of the CIRP Regulations, the resolution plan submitted by JNSCO was approved by the CoC in its commercial wisdom with 88% voting share in terms of the e-voting which stood concluded on 27 October 2022. In line with the directions of the Hon'ble Supreme Court in the SC Judgment, the CoC reconsidered all resolution plans, and after due deliberations and in its commercial wisdom, reaffirmed its vote for approval of the INSCO resolution plan as it: (i) was the only compliant resolution plan as on 28 October 2022; (ii) has already been considered and approved by the CoC by 88% voting share in terms of thee-voting which stood concluded on 27 October 2022; and (iii) has not undergone any changes after its consideration by the CoC. The CoC requested the RP to issue a letter of intent to INSCO and further request INSCO to submit a performance bank guarantee ("PBG") in accordance with Clause 2.11 of the RFRP. RP took note of the same. The RP further informed the forum that basis the requirement of the RFRP, AGI had submitted a PBG of INR 221.33 Cr which was handed by AGI to SBI SAMB-I, Kolkata Branch. The memb....