TaxTMI 
TaxTMI 
2026 (4) TMI 379
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....filed the instant Company Appeal challenging the impugned order dated 19.02.2025 which has been passed by the Learned NCLT, Chennai, on IA(IBC)1958/CHE/2024, preferred in CP(IB)/73/CHE/2022. The Appellant had filed the said application before the Learned NCLT, by invoking the provisions contained under Section 60(5) of I & B Code, 2016, to be read with Rule 11 of NCLT Rules, 2016, wherein he had sought for direction against the Resolution Professional (Respondent No. 1) for not to consider the resolution plan submitted by the consortium, which included Mr. Sandip Agarwal, as member of consortium. The Appellant has raised an objection to the effect that under law, the said change in the configuration of the members of consortium by introducing a new member of prospective Resolution Applicant, cannot be permitted, as being in violation of Regulation 36 (B) (6) of IBBI (CIRP) Regulations, 2016. 2. The case of the Appellant was that, the Financial Creditor initiated proceedings by filing an Application under Section 7 of the I & B Code, 2016, to be read with Rule 4 of the I & B (Application to Adjudicating Authority Rules, 2016), before NCLT Chennai praying for the initiation of the....
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....solution Plan. As per RP's report, Ayra Info Solutions Private Ltd submitted their Resolution Plan on 14.08.2024 which included Sandip Agarwal as the 4th member of the Consortium. This is in direct contradiction to the minutes of the 14th CoC meeting, dated 19.08.2025, where it categorically observes that, Resolution Plan has been received from 2 PRAs, namely M/s. Ayra Info Solutions Pvt. Ltd., M/s. Additya Infrastructures and Gopal Sharma, (Consortium) and M/s. Seaside Vanijya Pvt Ltd (Consortium). 5. The grievance of the Appellant is that as per the minutes recorded in the 13th CoC meeting, and as per the published final list of prospective Resolution Applicants, the consortium of Ayra Info Solutions Pvt. Ltd., had only 3 constituent members, i.e. Ayra Info, Additya Infrastructures & Gopal Sharma, but in the 14th CoC meeting, which was held on 19.08.2024, it is the case of the Appellant that the Respondent No. 1, has informed that, other than the Appellant, the Respondent No. 1, has also received the Resolution plans from two other prospective Resolution Applicants, namely the consortium of Arya Info Solutions Pvt. Ltd and the consortium of M/s. Subhlaxmi Investment Adviso....
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.... reference to the implication of the Regulation 23(7) and 2(1) of IBBI(Insolvency Regulation process of Corporate Persons) Regulations 2016, has submitted that under Section 24 of the I & B Code, 2016, the queries made by the Appellant, with regard to the decision taken by CoC meetings, was mandatorily required to be imparted, but the same was done in a clandestine manner and the Appellant submits that, in the reminder which was issued by the Appellant on 29.08.2024, when the Respondent No. 1, responded with regards to the imparting of the information of the 15th CoC meeting, he submitted that apart from the submission of the Resolution Plan by the Appellant, Adarsh Surana, the consortium of M/s. Arya Info Solutions Pvt. Ltd. and Others, had submitted their plan and have deposited the earnest money too, but instead of its constituant of 3 members, they were shown to have included the 4th member, Mr. Sandip Agarwal, who was added, as to be a member to the consortium with its lead member as M/s. Ayra Info Solutions Pvt. Ltd., which was ultimately revealed in the 17th CoC meeting which was held on 02.09.2024, thus the grievances in regards the manner in which the minutes of the meetin....
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....ing applicant consortium, as it may have an adverse bearing to the Appellant's Resolution Plan. But this Appellate Tribunal is of the view that if the language used under Resolution 39(1B)(b) is taken into consideration, it specifically uses the word "person", The word "person" has been defined under the I&B Code, in the following manner: Section 3(23) of the I&B Code, which is extracted hereunder:- (23) "person" includes-- (a) an individual; (b) a Hindu Undivided Family; (c) a company; (d) a trust; (e) a partnership; (f) a limited liability partnership; and (g) any other entity established under a statute, and includes a person resident outside India; 8. In the definition of the "person" as given under the definition clause of the I & B Code, 2016, under Section 3(23) as extracted above, it does not include word consortium or a member of the consortium, to be included as a person to be brought within the ambit of a restriction imposed by Regulation 39(1B) (b). The logic behind this interpretation is that, the consortium in itself is only a constituent of its members who can apply to participate in a CIRP, w....
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....both the prospective Resolution Applicants were asked to present their plans and the plan which was submitted by the consortium of the M/s. Ayra Info Solutions Pvt. Ltd. in which Mr. Sandip Agarwal, was introduced later, as the member, which was not opposed at any point of time by the lead member of the consortium. Not even that, in the 17th CoC meeting, after introduction of Mr. Sandip Agarwal, as a 4th member of the consortium though apparently, it does not happens to be in violation of Regulation of 39(1B), the plan which was submitted by the M/s. Ayra Info Solutions Pvt. Ltd., - led consortium, with all the 4 members, as a part of which he included Mr. Sandip Agarwal, which was not objected by A and particularly, in the context of the observation which has been made by the Learned Tribunal in its finding recorded to the effect that, the consortium of the prospective Resolution Applicant, with its lead member as M/s. Arya Info Solutions Pvt. Ltd., after scrutiny of the Expression of the Interest, it was included in the final list of the PRAs and thereafter, only the RFRP was issued to it on 28.05.2024. This Appellate tribunal is of the view, that if Sub- Regulation 12 of Regulat....
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....Swiss Challenge Mechanism. Even otherwise also, it is a settled preposition of law that the CoC may at its own discretion at any stage decide any method of the process of negotiation, for getting a better value with a Resolution Applicants regarding their Financial position, prior to the voting of the plan. The Learned Counsel for the Appellant had drawn the attention of this Appellate Tribunal and particularly to the item No. 3 as contained in the minutes of 15th meeting. Nothing much could be culled out, by item No. 3, as it was discussed in 15th CoC meeting held on 22.08.2024, which could be said to be in contravention to the regulations dealing with the process of the finalization of Resolution Plan and hence since the addition of the 4th member in the consortium since not being barred under Section 29(A) of I&B Code, it cannot be said to be illegal in any manner whatsoever, in the absence there being any statutory bar created by law. 11. The Learned Counsel for the Appellant has made reference to a Judgement reported in 2024, SCC OnLine NCLAT 46, Jindal Power Limited Vs. Dhiren Shantilal Shah and Another. and particularly he has referred to Para-42, which is extracted here ....