National Company Law Appellate Tribunal
Dr. Yarlagadda Krishna Mohan vs Dantu Indu Sekhar on 30 November, 2023
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
AT CHENNAI
(APPELLATE JURISDICTION)
COMPANY APPEAL (AT) (CH) (INS.) No. 370/2023
(I.A. Nos. 1130 & 1131/2023)
(Filed under Section 61 of the Insolvency and Bankruptcy Code, 2016)
(Against the Impugned Order dated 05/07/2023 in
C.P.(IB) No. 206/07/HDB/2021 passed by the 'Adjudicating Authority',
National Company Law Tribunal, Hyderabad Bench)
In the matter of :
Dr. Yarlagadda Krishna Mohan
S/o. Sh. Srinivasa Rao
Aged about 56 Years
R/o. 6-3-661/A/3,
Flat No. 3, Bhavana Towers,
Kapadia Lane, Somajiguda,
Hyderabad-82, Telangana
... Appellant
Versus
1. Mr. Dantu Indu Sekhar
Resolution Professional,
IBBI/IPA-003/IPA-ICAI-N-00233/2019-
2020/12773
29-1401/6/1 Plot No. 253 Road No. 2
West Deen Dayal Nagar,
Ramakrishna Puram,
Neredmet, Hyderabad,
Telangana, 500056.
...Respondent No. 1
2. Committee of Creditors
Represented by State Bank of India
D.No. 5-9-76, 2nd Floor, Prabhat Towers,
Oppp. SBI, Amaravathi LHO,
Chapel Road Gunfoundry,
Hyderabad - 500001.
...Respondent No.2
C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 1 of 22
3. State Bank of India
Stressed Assets Management Branch,
D. No. 5-9-76, 2nd Floor, Prabhat Towers,
Oppo. SBI, Amaravathi LHO,
Chapel Road Gunfoundry,
Hyderabad - 500001.
Also at:
Stressed Asset Resolution Group,
21st Floor, Maker Tower E
Cuffe Parade, Mumbai - 05. ...Respondent No.3
Present :
For Appellant : Mr. Anirudh Krishnan & Mr. K. Mohit Kumar,
Advocates
For Respondent No. 1 : Mr. S. Ravi, Sr. Advocate
For M/s. Mumaneni Vazra Laxmi, Advocates
For Respondent No. 3 : Mr. MG. Pranava Charan, Advocate for R3
WITH
COMPANY APPEAL (AT) (CH) (INS.) No. 382/2023
(Filed under Section 61 of the Insolvency and Bankruptcy Code, 2016)
(Against the Impugned Order dated 05/07/2023 in
C.P.(IB) No. 206/07/HDB/2021 passed by the 'Adjudicating Authority',
National Company Law Tribunal, Hyderabad Bench)
In the matter of :
Dr. Yarlagadda Krishna Mohan
S/o. Sh. Srinivasa Rao
Aged about 56 Years
R/o. 6-3-661/A/3,
Flat No. 3, Bhavana Towers,
Kapadia Lane, Somajiguda,
Hyderabad-82, Telangana
... Appellant
Versus
C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 2 of 22
4. Mr. Dantu Indu Sekhar
Resolution Professional,
IBBI/IPA-003/IPA-ICAI-N-00233/2019-
2020/12773
29-1401/6/1 Plot No. 253 Road No. 2
West Deen Dayal Nagar,
Ramakrishna Puram,
Neredmet, Hyderabad,
Telangana, 500056.
...Respondent No. 1
5. Committee of Creditors
Represented by State Bank of India
D.No. 5-9-76, 2nd Floor, Prabhat Towers,
Oppp. SBI, Amaravathi LHO,
Chapel Road Gunfoundry,
Hyderabad - 500001.
...Respondent No.2
6. State Bank of India
Stressed Assets Management Branch,
D. No. 5-9-76, 2nd Floor, Prabhat Towers,
Oppo. SBI, Amaravathi LHO,
Chapel Road Gunfoundry,
Hyderabad - 500001.
Also at:
Stressed Asset Resolution Group,
21st Floor, Maker Tower E
Cuffe Parade, Mumbai - 05. ...Respondent No.3
Present :
For Appellant : Mr. Anirudh Krishnan & Mr. K. Mohit Kumar,
Advocates
For Respondent No. 1 : Mr. S. Ravi, Sr. Advocate
For M/s. Mumaneni Vazra Laxmi, Advocates
For Respondent No. 3 : Mr. MG. Pranava Charan, Advocate for R3
C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 3 of 22
JUDGMENT
(Virtual Mode) [Per: Shreesha Merla, Member (Technical)]
1. Aggrieved by the Common Impugned Order dated 05/07/2023 passed by the National Company Law Tribunal, Hyderabad in IA Nos. 315 & 316/2023 in C.P.(IB) No. 206/7/HDB/2021, the Promotor of the Corporate Debtor Company preferred these Appeals under Section 61 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'the Code'). The Adjudicating Authority has in the Order Impugned dismissed the Applications preferred by the Appellant herein, observing as follows:
23. A perusal of the Minutes of the Meetings mentioned by the Counsel appearing for the RP would show that the Applicant had been very much present, either personally or through his representative and the deliberations of the agenda items took place in his presence. The OTS proposal was not accepted by the Bank and the same was communicated to the Applicant by letter dated 07.02.2023 by the Asst. General Manager of the Bank. The failure was due to the Applicant being not able to honour the terms of compromise despite extension of time.
24.In the 10th CoC Meeting for which, the representative of the Applicant was present, the list of the issues to be voted at the meeting were also mentioned.
25.In the 12th CoC meeting, where the Applicant was very much present. It was informed by the RP that an IA is filed for approval of the Resolution Plan.C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 4 of 22
26.Hence from the above, it is evident that the Applicant was present in almost all the meetings and he was put on proper notice about each of the meetings. The contention that the Resolution Plan is not circulated to him does not find any basis, since the minutes of all the CoC meetings would reflect that the members present have deliberated on each of the agenda items including the Resolution Plan. There is absolutely no demur raised by the applicant in any of the CoC meetings. The averment that he came to know through the notice of the 12th CoC meeting, about the agenda items, would itself imply if not prove, that notices were being served along with agenda items, which is one of the grievances raised in the application. The fact that there were deliberations on the agenda items would show that the concerned papers were circulated to tall the members present at the meetings, including the applicant. In fact the approval of the resolution plan was done in the 12th CoC meeting, regarding which a notice along with agenda is given to the applicant. If there was any objection on the plan or any of the contentions raised, in this application, he ought to have very well raised them in the meeting itself. Having accepted all the resolutions passed in his presence, he is estopped from questioning them later.
27. Hence, on the mere technicality that he was not formally supplied with the copy of the Resolution Plan and when absolutely no grievance is expressed, the application cannot be allowed at this stage of the CIRP.
Hence, the applications are dismissed."
C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 5 of 22
2. The Learned Counsel for the Appellant Mr. Anirudh Krishnan submitted that the first Respondent / the Resolution Professional (RP) conducted the 9th CoC Meeting on 03/12/2022 when the CoC was requested to evaluate the Resolution Plans; that the 10th CoC Meeting was conducted on 08/12/2022 when a date was proposed to be fixed for voting on the Resolution Plans; that on 09/12/2022 a letter was issued by the Appellant to the State Bank of India ("SBI") submitting an OTS Settlement Proposal; that on 12/12/2022 notice of the 11 th CoC Meeting was issued by the RP stating that the Meeting was to be conducted on 14/12/2022 at 11.30 a.m. and that when the Appellant had logged in to the Meeting link on 14/12/2022 at 11.30 a.m., nobody had joined the Meeting. It is submitted that the RP conducted the 11th CoC Meeting at 3.00 p.m., wherein the CoC has requested the extension of voting timelines for a period of 30 days and it was resolved that an Application seeking extension of CIRP period would be filed by the RP and these facts were gathered by the Appellant only from the minutes of the 11th CoC Meeting along with the notice for 12th CoC Meeting dated 27/01/2023. It is argued by the Learned Counsel for the Appellant that they were not intimated by the Meeting scheduled at 3.00 p.m. While so, on 20/12/2022 SBI replied to the Appellant rejecting the OTS Proposal. On 03/01/2023, the CIRP period was extended for 45 days and on 13/01/2023, the RP received the relative voting sheet for the approval of the Resolution Plan.
3. It is the case of the Appellant that it was only on receipt of Notice of the 12th CoC Meeting dated 27/01/2023 that the Appellant had become aware about C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 6 of 22 the approval of the Resolution Plan and that the Letter of Intent ("LOI") was issued to the Successful Resolution Applicant ("SRA"). It is argued by the Learned Counsel for the Appellant that it was only when the Notice for the 12th CoC Meeting was issued that the Appellant was informed about the approval of the Resolution Plan on 27/01/2023. Meanwhile on 30/01/2023, an e-mail was sent by the Appellant to SBI revising the OTS Proposal. IA No. 192/2023 was filed by the RP seeking approval of the Resolution Plan and the Appellant had sought time for filing an Impleading Application objecting to the approval of the Resolution Plan. It is submitted that the minutes of the 12 th CoC Meeting on 01/01/2023 records the objections raised by the Appellant before the Adjudicating Authority.
4. It is the main case of the Appellant that failure to provide an accurate Notice to the 11th CoC Meeting dated 14/12/2022 and the failure to provide Notice to e-voting of the Resolution Plan is in contravention of Regulations 21, 24 and 26 of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016. The Learned Counsel for the Appellant in support of his contention that a Copy of the Resolution Plan ought to have been given to him placed reliance on the Judgment of the Hon'ble Apex Court in the matter of 'Vijayakumar Jain Vs. Standard Chartered Bank' reported in [(2019) 20 SCC 455], which relevant para, reads as hereunder:
"16. This statutory scheme, therefore, makes it clear that though the erstwhile Board of Directors are not members of the committee of creditors, yet, C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 7 of 22 they have a right to participate in each and every meeting held by the committee of creditors, and also have a right to discuss along with members of the committee of creditors all resolution plans that are presented at such meetings Under Section 25(2)(i). It cannot be gainsaid that operational creditors, who may participate in such meetings but have no right to vote, are vitally interested in such resolution plans, and must be furnished copies of such plans beforehand if they are to participate effectively in the meeting of the committee of creditors. This is for the reason that Under Section 30(2)(b), repayment of their debts is an important part of the resolution plan qua them on which they must comment. So the first important thing to notice is that even though persons such as operational creditors have no right to vote but are only participants in meetings of the committee of creditors, yet, they would certainly have a right to be given a copy of the resolution plans before such meetings are held so that they may effectively comment on the same to safeguard their interest. ...
20. It is also important to note that every participant is entitled to a notice of every meeting of the committee of creditors. Such notice of meeting must contain an agenda of the meeting, together with the copies of all documents relevant for matters to be discussed and the issues to be voted upon at the meeting vide Regulation 21(3)(iii). Obviously, resolution plans are "matters to be discussed" at such meetings, and the erstwhile Board of Directors are "participants"
who will discuss these issues. The expression "documents" is a wide expression which would certainly include resolution plans."
5. It is the further case of the Appellant that being unaware of Regulations 21, 24 and 26 of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016, the Appellant did not ask for the Resolution Plan during the C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 8 of 22 CoC Meetings but has however, recorded its objections before the Adjudicating Authority and also specifically stated so in his affidavit. It is also argued that the doctrine of waiver does not arise as the Appellant got to know about the approval of the Resolution Plan only on 27/01/2023 and immediately thereafter, on 31/01/2023, the Appellant had recorded its Objections before the Adjudicating Authority.
6. The Learned Counsel for the first Respondent / RP submitted that the Appellant being a suspended Board of Director of the Corporate Debtor Company is not having a locus standi to file the present Appeal; that the Resolution Plan was approved by the CoC with 100 % voting; that the Resolution Plan was put up for voting in the 10th CoC Meeting itself on 08/12/2022, but SBI being the sole financial Creditor requested for extension of the Voting timelines in the 11th CoC Meeting by 30 days and subsequently voted on the Plan on 13/01/2022. It is submitted by the Learned Counsel for the RP that the notice for the 11 th CoC Meeting to be conducted on 14/12/2022 was received by the Appellant herein and the whatsapp conversation establishes that the Appellant was aware of the 11 th CoC Meeting and could have attended the same at 3.00 p.m. The change in timing was intimated to him. There are also no grounds for not contacting the RP when he had logged in at 11.30 a.m. and there was nobody present. Moreover, the minutes of the previous Meeting are always confirmed by a matter of procedure in the next Meeting and therefore, the minutes of the 11th CoC Meeting conducted on 14/12/2022 was reconfirmed in the 12th CoC Meeting conducted on C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 9 of 22 01/02/2023 and therefore, the Appellant cannot state that he was not in the knowledge regarding the extension of timelines or the evaluation matrix of the Resolution Plans. It is argued that the Appellant was a participant in all the CoC Meetings and in the discussions of the agenda items of the Meetings like the evaluation matrix criteria and never made a request for supply of the copy of the Resolution Plan. It is also submitted that the Appellant never got the OTS Proposal accepted by the sole CoC Member i.e. SBI and SBI had informed the Appellant vide Letter dated 07/02/2023 that their OTS proposal stands rejected.
7. The Learned Senior Counsel contended that there was not prejudice caused to the Appellant herein by not giving him a copy of the Resolution Plan, despite the fact that it was never requested prior to 31/01/2023, as the Appellant's OTS Proposal was rejected by SBI and having attended all the CoC Meetings except the 11th Meeting, the Appellant was very much in knowledge of the evaluation matrix and the Plan amounts.
8. The Learned Counsel for the third Respondent / SBI / the sole Financial Creditor submitted that on 09/05/2022, SBI had included the name of the Corporate Debtor and its Directors in the list of wilful defaulters. In the 10th CoC Meeting, the Appellant's representative was present when one of the Prospective Resolution Applicants had requested to withdraw from the process and the evaluation matrix was discussed at length. On 09/12/2022, the Appellant had extended the OTS for Rs. 80 Crores and also deposited an amount of Rs. 1 Crore into the no lien account of the Financial Creditor. The e-voting was scheduled to C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 10 of 22 be open on 11/12/2022 10.00 a.m. to 15/12/2022 5.00 p.m. The Notice for the 11th CoC Meeting was given to the Appellant on 12/12/2022. On 14/12/2022, the 11th CoC Meeting was conducted but the timing was changed from 11.30 a.m. to 2.00 p.m. due to the non-availability of the sole creditor. The time change was also intimated. The time change was also intimated which is evident from the whatsapp text to the RP. The OTS Proposal was rejected on 20/12/2022. In the 12th CoC Meeting, the Appellant was present when the RP informed that the CoC voted in favour of the Resolution Plan submitted by M/s. Square Four Housing and Development Private Limited. On 23/01/2023, the RP filed IA No. 192/2023 for approval of the Resolution Plan. On 07/02/2023, the Bank communicated the non-acceptance of the OTS to the Applicant. On 14/02/2023, the Applicant filed IA No. 315/2023, seeking for declaration of the process for approval of the Resolution Plan not in adherence to the provisions under IBC and to set aside the minutes of the 12th CoC Meeting. It is argued by the Learned Counsel for the third Respondent that there was never any acceptance of the OTS proposal given by the Appellant as the terms were not acceptable to SBI and therefore, the question of prejudice having been caused to the Appellant herein does not arise.
9. It is also submitted by the Learned Counsel for the SBI that the Appellant is a doctor by profession and a Director of multiple concerns occupying the position to Director in many Companies and was aware of the relevant facts and the legal right to object at the relevant time but failed to do so and therefore, is hit by the Doctrine of Waiver. The Learned Counsel concluded that between C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 11 of 22 December 2022 to January 2023, the Appellant had given an OTS Proposal on 09/12/2022 and 30/01/2023. The OTS Proposal amounts provided therein were Rs. 80 Crores and Rs. 90 Crores respectively. The Resolution Plan amount by the SRA was Rs. 81.65 Crores, which clearly shows that the Appellant was aware of the contents of the Resolution Plan. It is vociferously argued by the Learned Counsel that without being aware of the contents of the Resolution Plan, there is not logical conclusion as to how the Appellant arrived at an OTS Settlement amount of Rs. 90 Crores when the debt outstanding is Rs. 333.61 Crores (as on 31.10.2023) Assessment :
10. The main issues which arise in these Appeals are • "Whether Notice was issued to the Appellant herein regarding the 11th CoC Meeting scheduled to be held on 14/12/2022 and the change of timing from 11.30 a.m. to 3.00 p.m. • Whether there is any prejudice caused to the Appellant herein on account of the Appellant not having attended the 11th CoC Meeting at 3.00 p.m. Whether there was any violation of Regulations of the IBBI (Insolvency Process for Corporate Persons) Regulations, 2016.
• Whether the ratio in the Judgment of 'Vijayakumar Jain Vs. Standard Chartered Bank' reported in [(2019) 20 SCC 455] is applicable to the facts of this case."
11. At the outset, we address to whether Notice for the 11 th CoC Meeting was issued to the Appellant herein. It is seen from the record that the Notice of the C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 12 of 22 11th CoC Meeting scheduled to be held on 14/12/2022 at 11.20 a.m. was sent by an email along with the Meeting link to the Appellant herein. The said email is reproduced as hereunder:
C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 13 of 22
12. It is the case of the Appellant that the change in the timing was not informed. But the whatsapp conversation with the RP requesting for Minutes of the 11th CoC Meeting stating that 'due to sudden time change in CoC Meeting we couldn't attend that online' establishes that the Appellant was very much aware of the change in the CoC Meeting time. It is also not in dispute that the minutes of the 11th CoC Meeting were reconfirmed in the 12th CoC Meeting which was attended by the Appellant herein. To examine whether any prejudice was caused to the Appellant for not having attended the 11 th CoC Meeting at 3.00 p.m., we find it apposite to reproduce the minutes of the 12th Meeting of the CoC held on 01/02/2023, which was attended by the Appellant.
C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 14 of 22 C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 15 of 22
(Emphasis Supplied) C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 16 of 22
13. From the aforenoted minutes, it is clear that the minutes of the 11th Meeting of the CoC held on 14/12/2022 stood confirmed; that the Appellant wanted to file an Implead Application opposing the approval of the Resolution Plan; that the RP appraised the CoC regarding the mail sent by the Appellant herein to SBI on 30/01/2023, regarding his OTS offer. This establishes that the Appellant was aware regarding the CoC approval of the Resolution Plan; that CIRP period was sought to be extended.
14. It is pertinent to mention that the on 23/01/2023, the RP filed IA No. 192/2023 seeking approval of the Resolution Plan and the Bank / the Sole Financial Creditor communicated to the Appellant herein on 07/02/2023 that the OTS Proposal was rejected. It is also significant to mention that the Appellant filed IA No. 315 & 316/2023 on 14/02/2023 subsequent to the rejection of the OTS Proposal and also subsequent to the filing of IA No. 192/2023. On a pointed query from the Bench, it was submitted by the Learned Counsel appearing for SBI that the OTS proposals given during the period December 2022 to January 2023, i.e. on 09/12/2022 and on 30/01/2023 for Rs. 80 Crores and Rs. 90 Crores was arrived at by the Appellant only because of having attended all the CoC Meetings from 1st to the 10th CoC Meetings and also the 12th CoC Meeting and being aware of the minutes of the 11th CoC Meeting, wherein the discussions included the Plan amounts and the evaluation matrix of each Plan. It was clearly submitted by the Learned Counsel that the OTS Settlement of Rs. 90 Crores was rejected because the Debt Outstanding amount was Rs. 333.61 Crores as on C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 17 of 22 31/10/2023 and has nothing to do with the approval of the Resolution Plan. It is also an admitted fact that the SBI had rejected the OTS Proposal on 20/12/2022 as the minimum of 25 % to be deposited in the no lien account was not adhered to by the Appellant. Therefore, viewed from any angle, the Appellant herein cannot be said to be prejudiced or his legal right having been injured on account of the Appellant not attending the 11th CoC Meeting at 3.00 p.m. Be that as it may, we find force in the contention of the Learned Counsels for the Respondents that the change in the timing was also intimated and it was the Appellant who did not choose to join the link. The voting sheet enclosed with the material on record establishes that Regulation 26 of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016 was not violated. Section 25 (2) and Regulation 21 have been complied with by the Respondents as the contents of the Notice for the Meeting and presenting all Resolution Plans at the Meetings of the CoC was duly done by the RP. Therefore, we are of the considered view that there was no violation of any Regulation of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016 to warrant our interference in the approval of the Resolution Plan.
15. Now, we address to whether the ratio in the matter of 'Vijayakumar Jain Vs. Standard Chartered Bank' reported in [(2019) 20 SCC 455] is applicable to the facts of this case. For better understanding of the attendant case, the reliefs sought for in IA No. 315 & 316/2023 respectively filed by the Appellant herein is reproduced as hereunder:
C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 18 of 22 IA No. 315/2023
VII. PRAYER:
In the above circumstances and based on the facts of the case, it is prayed that this Hon'ble Tribunal may be pleased to:
(a) Declare that the process for approval of resolution plan as conducted by Respondent No. 1 was not in accordance with the Insolvency and Bankruptcy Code, 2016 and the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and consequently, set aside the minutes of the CoC in the 12th CoC meeting dated 01.02.2023 to the extent of approval of resolution plan.
(b) Any other Order(s) or relief as this Hon'ble Tribunal deems fit and proper under the circumstance of the case."IA No. 316/2023
VII. PRAYER:
In the above circumstances and based on the facts of the case, it is prayed that this Hon'ble Tribunal may be pleased to:
(a) "Stay the proceedings in 1.A. 192 of 2023 in CP (IB) No. 206 of 2021 filed by Respondent No. I pending adjudication of the application filed for declaration of the process for approval of resolution plan as conducted by Respondent No. 1 was not in accordance with the Insolvency and Bankruptcy Code, 2016 and the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and consequently, set aside the minutes of the CoC C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 19 of 22 in the 12th CoC meeting dated 01.02.2023 to the extent of approval of resolution plan.
(b) Any other Order(s) or relief as this Hon'ble Tribunal deems fit and proper under the circumstance of the case."
16. It is seen from the aforenoted prayer that there was no request made for the copy of the Resolution Plan. In fact, the Appellant has filed an additional Affidavit on 01/11/2023 stating in para 6 as hereunder:
"6. Further, there is no question of me having given up/waived my right by virtue of not raising any objections. While it appeared to me that there was a lack of transparency, I was not aware of the specific requirements of Regulations 21, 24 and 26 of IBBI (Insolvency Resolution Process of Corporate Persons), 2016. Had I been aware, I would have raised the objections then and there. I became aware of my rights only after I approached my lawyer who educated me of regulations governing the procedure for conduct of meetings and approval of resolution plan. My lawyer immediately advised me to challenge the process of approval of resolution plan and I took steps as early as on 31.01.2023, before the Hon'ble NCLT when the Application for approval of Resolution Plan was listed. My objection is also recorded in the Daily Order for the said date. Even after that, on 01.02.2023 in the 12th CoC Meeting my lawyer's objections before the Hon'ble NCLT was recorded in the Minutes. Furthermore, during the entire process my One Time Settlement proposal was under consideration and hence I was given to understand that there was possibility of this being accepted. However, after I realized that my rights had been trampled, and when I first voiced my objection before the Hon'ble NCLT on 31.01.2023, the Bank rejected my OTS proposal immediately vide its Letter dated 07.02.2023."C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 20 of 22
17. From this Affidavit it is clear that the Copy of the Resolution Plan was never asked for during any of the CoC Meetings whereby and whereunder the evaluation matrix and the approval of the Resolution Plan was discussed. It is the case of the Appellant that the objection regarding the Resolution Plan was raised in the 12th CoC Meeting and the Appellant herein sought to file an Impleadment Application. The fact remains that there was no request made for a copy of the Resolution Plan. In Vijayakumar Jain case, the Appellant was denied participation in the Meetings and the Appellant had filed Miscellaneous Applications before the Adjudicating Authority seeking a direction to effectively participate in these Meetings and even executed a non-disclosure Agreement for sharing the Resolution Plans of the Corporate Debtor. In the instant case, there is clear cut evidence that the Appellant was never denied participation in any of the Meetings and infact had attended all the Meetings, except the 11th CoC Meeting for which, Notice was duly served to the Appellant. The prayer in the instant case is not that the Appellant was not allowed participation in the CoC Meetings, but rather that the process in the approval of the Plan is not in accordance with the Code. It is held in Vijaykumar Jain (Supra) that the Law must ensure that access to this information is made available to all Creditors to the Enterprise, directly or through the RP. In the attendant case, the Appellant was well aware of the Resolution Plan and was part of all the discussions with respect to the evaluation matrix. It is significant to mention that the Appellant had not made any request seeking for the Copy of the Resolution Plan, which is C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 21 of 22 not the case in the facts of the matter of Vijaykumar Jain (Supra). Therefore, we are of the considered view that the ratio of Vijaykumar Jain cannot be made squarely applicable to the facts of the attendant case on hand.
18. For all the foregoing reasons, we are of the considered view that there is no prejudice or injury to any legal right caused to the Appellant herein and we see no illegality or infirmity in the Common Impugned Order dated 05/07/2023, passed by the Adjudicating Authority and hence, these Appeals fail and are accordingly dismissed. No Order as to Costs. All Connected Pending Interlocutory Applications, if any, are closed.
[Justice Rakesh Kumar Jain] Member (Judicial) [Shreesha Merla] Member (Technical) 30/11/2023 SPR/TM C.A. (AT) (CH) (Ins) No. 370 & 382/2022 Page 22 of 22