TaxTMI 
TaxTMI 
2026 (4) TMI 1440
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....bunal, Court V, Mumbai Bench), by which order adjudicating authority permitted the Resolution Professional (RP) to withdraw I.A. 1505/2021 filed by the RP for approval of the resolution plan of the appellant. Appellant aggrieved by the impugned order has come up in this appeal. 2. Brief facts of the case necessary to be noticed for deciding the appeal are: i. The corporate debtor TD Toll Road Private Limited was admitted into Corporate Insolvency Resolution Process (CIRP) vide order dated 25.11.2019. The corporate debtor was implementing National Highway Authority of India (NHAI) Project in NH - 45 from Trichy to Dindigul for four laning. ii. The RP after collating the claims published an advertisement in 'Form-G' to invite Expression of Interest (EOI) on 03.07.2020. iii. The Request for Resolution Plan (RFRP) was issued by the RP on 11.01.2021 in response to which the resolution plan was submitted by the appellant. The Committee of Creditors (CoC) consisting R-2 to R-7 unanimously approved the resolution plan of the appellant on 07.05.2021. Appellant submitted a Performance Bank Guarantee (PBG) of Rs. 8,62,75,000/-. iv. On 29.06.2021, RP file....
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....ready approved in May 2021, due to lapse of more than 4 years in the change circumstances and to maximise the value of the corporate debtor. xi. The application for approval of the resolution plan I.A.1505/2021 came for consideration before the adjudicating authority on 08.12.2025. The RP appeared through VC and requested that I.A.1505/2021 praying for approval of the resolution plan be permitted to be withdrawn. CoC Members having vote share of 74% also submitted before the adjudicating authority that due to lapse of substantial time the implementability and feasibility of the plan has come to change, hence CoC members have authorised the RP to withdraw the IA. xii. The above submissions were objected by the counsel for the appellant stating that resolution plan having been already approved by the CoC, CoC has no jurisdiction to withdraw the plan. Learned counsel for the appellant relied on the judgement of the Hon'ble Supreme Court in [(2022) 2 SCC 401] in the matter of 'Ebix Singapore Private Limited' Vs. 'Committee of Creditors of Educomp Solutions Limited & Anr.'. Adjudicating authority permitted withdrawal of the application by impugned order and an applicat....
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....ision of approving the resolution, which is clearly prohibited by Regulation 18(2) of the CIRP Regulations, 2016. It is submitted that delay was caused in considering the plan approval application on account of the interim order obtained by the suspended directors with respect to the CIRP of the corporate debtor. Hon'ble Supreme Court ultimately having dismissed appeal filed by suspended directors on 09.12.2024, adjudicating authority was required to consider the application and approve the resolution plan. 5. Learned Sr. counsel Mr. Arvindh Pandian appearing for the RP submitted that RP had made request for withdrawal of the plan approval application having been authorised by the CoC in its 23rd CoC meeting held on 04.11.2025. It is submitted that corporate debtor was run as a going concern by the RP and during the period when corporate debtor has run as a going concern, huge amount has been accumulated to the credit of corporate debtor due to lapse of considerable time and huge accumulation of amount, corporate debtor has generated cash surplus of more than Rs. 120 crore as on date after meeting all operational expenses. The resolution plan submitted by appellant was no more v....
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....1 for approval of the resolution plan. II. On an appeal filed by the suspended director of the corporate debtor challenging the initiation of CIRP process against the corporate debtor, the interim order was passed on 03.01.2022 by the Supreme Court staying the further proceeding, which order was subsequently modified permitting the CoC to consider certain specific subject. III. On 09.12.2024, Hon'ble Supreme Court dismissed the Appeal No.4799/2021. Hon'ble Supreme Court by its order dated 09.12.2024 has noted the developments including the approval of the resolution plan in favour of appellant, LoI dated 10.05.2021 issued in favour of the appellant. 11. It is useful to notice paragraphs 1, 2 & 3 of the order of the Hon'ble Supreme Court which is as follows: "1. The present appeal, preferred by a suspended Director of the corporate debtor, Sameer Singh, impugns the judgment dated 22.05.2020 passed by the National Company Law Appellate Tribunal, New Delhi, on the question/factum of default. 2. On relevant consideration, we do not find any good ground and reason to interfere with the impugned judgment. 3. However, certain developments ha....
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....Syed Fahad, and the holding company, to raise all pleas and contentions before the NCLT, who will examine the same in accordance with the law. 16. We clarify that the observations made in this order are for the purpose of disposal of the present appeal. They would not be treated as an expression of opinion, either way, on the merits of the case." 13. Hon'ble Supreme Court further has directed the banks/financial institutions who were Members of the CoC to refund the money received from the corporate debtor, which was then to be converted into interest bearing fixed deposits. Appeal was dismissed in the above term. 14. Learned counsel for the RP and the CoC have relied and referred to the 22nd CoC Meeting and 23rd CoC Meeting. 22nd CoC meeting was held on 04.11.2025 and under Agenda Item No. 8 "any other matter with the permission of the Chair", following was noticed: "08 Any other matter(s) with the permission of the Chair Further course of action Update after internal approvals by CoC members: RP recalled that during the last CoC meeting held on 6th October 2025, the CoC members discussed the following items proposed by BOI and expressed t....
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...." 16. Although views expressed by the Members of the CoC in 23rd Meeting were noted as above, but CoC did not take any steps thereafter and when the application I.A.1505/2021 came for consideration before the adjudicating authority, the RP orally submitted that the RP has been mandated by the CoC to seek withdrawal of the I.A. which facts have been noted in paragraph 2 of the impugned order: "2. He submits that post the approval of the Resolution Plan, substantial time of nearly 5 years have passed and during this time the Corporate Debtor is being run as a going concern by the Resolution Professional and substantial cash generated is in the accounts of the Corporate Debtor. He submits that due to this factor and various other factors which affect the valuation together with implementation of the Plan were considered by the CoC and with 100% approval of the CoC he has mandate to seek withdrawal of this IA. The Resolution Professional having made such submission, request that this IA may be allowed to be withdrawn." 17. Objection raised by the appellant that I.A.1505/2021 cannot be permitted to be withdrawn has also been noticed in paragraph 3. Judgement of the Hon'bl....
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....court, the resolution plan even prior to the approval of the adjudicating authority is binding inter se the CoC and the successful resolution applicant. The resolution plan cannot be construed purely as a "contract" governed by the Contract Act, in the period intervening its acceptance by the CoC and the approval of the adjudicating authority. Even at that stage, its binding effects are produced by IBC framework. The BLRC Report mentions that "when 75% of the creditors agree on a revival plan, this plan would be binding on all the remaining creditors" [3.3.1, The Report of the Bankruptcy Law Reforms Committee, Vol. I : Rationale and Design (November 2015), p. 13, available at <https://ibbi.gov.in/BLRCReportVol1_04112015.pdf> last accessed 20-8-2021.]. The BLRC Report also mentions that, "the RP submits a binding agreement to the adjudicator before the default maximum date" [Id, p. 92.]. We have further discussed the statutory scheme of IBC in Sections I and J of this judgment to establish that a resolution plan is binding inter se the CoC and the successful resolution applicant. Thus, the ability of the resolution plan to bind those who have not consented to it, by way of a statuto....
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.... submitted to the adjudicating authority i.e. NCLT, it immediately becomes binding on the CoC and the SRA, even if the adjudicating authority has not yet given its stamp of approval on the same. While deciding so, this Court re-emphasised the object under Section 31(1) IBC and observed that once the adjudicating authority has approved the plan under Section 31(1) IBC, the resolution plan is binding on all the stakeholders including those stakeholders who are not direct participants of CIRP. Therefore, there is absolutely no scope for modification of the terms of a resolution plan which has received the imprimatur of the adjudicating authority, be it by the adjudicating authority itself, the CoC or the SRA." 21. The resolution plan approved by the CoC on 07.05.2021 was clearly binding on the CoC and the CoC had no jurisdiction to authorised the RP to withdraw the plan. RP and CoC has referred to 22nd CoC Meeting held on 04.11.2025 and 23rd CoC Meeting held on 02.12.2025. In the 22nd CoC Meeting in Agenda Item No.8, the view of the RP was clearly noticed that as per the Regulation 18 of the CIRP Regulations, 2016, CoC cannot take any decision which would affect resolution plan alr....
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....ithdrawal of the plan approval application and seeking permission to allow the CoC to issue fresh Form G. The Resolution Professional sent a letter dated 13.06.2025 terminating the LoI of the Appellant which was objected by the Appellant by detailed communication dated 25.06.2025. CoC in its 20th CoC meeting held on 28.05.2025 has taken a decision to cancel the LoI. 14. The first question which need to be noticed is as to whether after plan approval application which plan was approved with 100% vote share and plan approval application having filed on 03.01.2020, CoC could have held 15th CoC meeting on 16.08.2024 and 20th CoC meeting on 28.05.2025 affecting the plan approval application pending for approval. In this context, we may refer to Regulation 18(2) in which an explanation has been added by Notification dated 16.09.2022 w.e.f. 16.09.2022. Regulation 18(2) along with the explanation is as follows:- "18. Meetings of the committee.- (2) A resolution professional may convene a meeting, if he considers it necessary, on a request received from members of the committee and shall convene a meeting if the same is made by members of the committee representing at leas....
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....e the Adjudicating Authority for passing fresh order in accordance with law. IA No.4424 of 2024 and IA No.5555 of 2024 are rejected. The Resolution Plan approval application had been pending before the Adjudicating Authority from 03.01.2020, we request the Adjudicating Authority to consider and decide CA (IBC)/240/PB/2020 expeditiously preferably within a period of three months from the date copy of this order is produced." The above judgement fully supports the submissions of the counsel for the appellant. 25. Learned Sr. counsel Mr. Arvindh Pandian appearing for the RP has placed reliance on the judgement of this Tribunal in the matter of 'Jubilee Metal Private Limited' Vs. 'Mr. Surendra Raj Gang Resolution Professional of Metenere Ltd. & Anr.' in [Comp. App. (AT) (Ins.) Nos.1550-1551 & 1552/2023]. Mr. Pandian submits that this Tribunal in the above case has upheld the decision of the CoC, where the order of the adjudicating authority allowing withdrawal of the application for approval of the resolution plan was upheld. In the above case, plan was approved after approval of the resolution plan, SRA sent an email to the RP that Gaurav Gupta ceased to be director or stakehold....
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.... Plan since the plan is clearly binding on the CoC but the above legal position and situation may not apply in a case where after approval of the Resolution Plan by the CoC, the Resolution Applicant himself has breached the terms and conditions and undertaking which was given by him as in the present case. The very basis and substratum of the Resolution Applicant which led the CoC to approve the Resolution Plan has been knocked out by changing the shareholding and directorship of the Resolution Applicant. In the present case, Mr. Gaurav Gupta who was controlling 100% shareholding in 'Shoora Capital' has withdrawn and transferred its shareholding to third party i.e. Mr. Sandeep Parwal. 29. Present is a case where in essence we may say it is a case of sale of Resolution Plan approved by the CoC to third party. CoC approves the Resolution Plan looking to the credentials of the Resolution Applicant and its credibility and finances. When very basis of Resolution Applicant is knocked out and it changes its constitution substantially the CoC cannot be faulted in view of breach of the conditions by the Resolution Applicant, application for approval of the Resolution Plan be withdr....
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.... Indian Overseas Bank (2019) 12 SCC 150." 28. The above was not a case where resolution plan was permitted to be withdrawn due to decision of the CoC to liquidate the corporate debtor. The above judgement thus in no manner helps the appellant. 29. Learned counsel for the R-8 has also contended that adjudicating authority was to consider all applications including the I.A.1679/2025 filed by the R-8, where R-8 has prayed for withdrawal of the CIRP on basis of the OTS. We have already noticed the order of the Hon'ble Supreme Court dated 09.12.2024 where Hon'ble Supreme Court has noticed the approval of the plan in favour of the appellant. Hon'ble Supreme Court has in the said case has given liberty to the appellant and the holding company to raise all pleas and contentions before the NCLT who was to examine the same in accordance with the law. In paragraph 15 of the Hon'ble Supreme Court, the said order was passed: "15. In light of the above, we dismiss the present appeal. However, we give liberty to the parties, including Mr. Kamal Pasha, Mr. Syed Fahad, and the holding company, to raise all pleas and contentions before the NCLT, who will examine the same in accordance....