National Company Law Appellate Tribunal
Up Awas Evam Vikas Parishad Up Housing ... vs M/S. Jnc Construction Pvt. Ltd. & Ors on 4 April, 2022
National Company Law Appellate Tribunal
Principal Bench, New Delhi
COMPANY APPEAL (AT) (INSOLVENCY) No. 855 of 2020
(Arising out of Order dated 04th August, 2020 passed by National Company
Law Tribunal, Principal Bench, New Delhi, in I.A. 2201(PB)/2020, I.A.
1166(PB)/2020, I.A. 1802(PB)/2020 in CP No. (IB)-272(PB)/2019).
IN THE MATTER OF:
Uttar Pradesh Awas Evam
Vikash Parishad,
(UP Housing and Development Board)
Hall No. S1, Sector 16A,
Vasundhara Complex,
Vasundhara, Ghaziabad,
Uttar Pradesh ...Appellant
Versus
1. M/s. JNC Construction Pvt. Ltd.
Having its office at:
128, Preet Vihar,
Delhi-110092
Email: [email protected],
[email protected] ...Respondent No. 1
2. Mr. Prabhjeet Singh Soni
Resolution Professional
Having its office at:
GG-1/144/C, 3rd Floor
Near PVR Cinema, Vikas Puri,
New Delhi - 110018
Email: [email protected]
...Respondent No. 2
3. M/s. Gautam Builders
Resolution Applicant
Having its office at:
128, Preet Vihar,
Delhi - 110092.
Email:
[email protected] ...Respondent No. 3
For Appellant: Mr. Rana Mukherjee, Sr. Advocate along
with Mr. Ritesh Agarwal, Advocates.
-2-
For Respondent No.1 & 3: Mr. Alok Dhir, Mr. Kanishk Khetan &
Ms. Varsha Banerjee, Advocates for R-1 & 3.
Respondent No. 2/RP: Mr. GP Madaan, Mr. Aditya Madaan &
Mr. Harimohan N., Advocates for R-2/RP.
Respondent No. 3: Mr. Yogesh Gupta (AR), Advocate for R-3.
For RP: Mr. Prabhjit Singh Soni, Advocate for RP.
JUDGEMENT
[Per; Shreesha Merla, Member (T)]
1. Challenge in this Company Appeal (AT) (Insolvency) No. 855 of 2020 is to the Impugned Order dated 04/08/2020 passed by the Learned Adjudicating Authority (National Company Law Tribunal, Principal Bench New Delhi) in I.A. 2201(PB)/2020, I.A. 1166(PB)/2019, I.A. 1802(PB)/2020 in CP No. (IB)-272(PB)/2019. I.A. 2201 (PB)/2020 filed under Section 30(6) of the Insolvency and Bankruptcy Code, 2016, (hereinafter referred to as 'the Code') filed by the Resolution Professional before the Adjudicating Authority, seeking approval of the Resolution Plan, under Section 31 of the Code r/w Regulation 39 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. The Adjudicating Authority approved their Resolution Plan submitted by the Successful Resolution Applicant/M/s. Gautam Builders in consortium with M/s. Rapid Contracts Private Limited.
2. Facts in brief are that Section 7 Application for initiation of Corporate Insolvency Resolution Process (CIRP) against M/s. JNC Construction Private Limited/the 'Corporate Debtor' was admitted by the Adjudicating Authority on 30/05/2019 and Mr. Ajay Kumar Jain was appointed as IRP. As per Company Appeal (AT) (Insolvency) No. 855 of 2020 -3- Regulation 27 of the CIRP Regulations, 2016, the Resolution Professional (RP) appointed registered valuers for valuation of the Security/Financial Assets of the 'Corporate Debtor' and for determination of the fair value and Liquidation Value. The average fair value as per Valuation Report is Rs.142,70,61,257/- and the Liquidation Value is Rs.99,89,42,880/-. In the 11th Meeting of the CoC held on 17/03/2019, the Resolution Plan submitted by all the Resolution Applicants was placed before the CoC and the subject Plans were put for e-voting between 23/03/2020 and 26/03/2020 and subsequently, the Resolution Plan by M/s. Gautam Builders in consortium with M/s. Rapid Contracts Private Limited was approved with 96.07% majority votes. The Adjudicating Authority while approving the Resolution Plan observed as follows:
"18. As regards compliance of clause (b) of Section 30 (2) of the Code, the Resolution Professional has certified that clause 6.2 of the resolution plan provides for the payment of the debts of operational creditors in such manner as may be specified by the Board (IBBI) which shall not be less than the amount to be paid to the operational creditors in the event of a liquidation of the corporate debtor under Section 53.
19. There appears to be no discrimination in the resolution plan in respective class of creditors, as same treatment is provided to similarly situated each class of creditors. So long as the provisions of the Code and the Regulations have been met, it is the commercial wisdom of the requisite majority of the Committee of Creditors which is to negotiate and accept a resolution plan, which may involve differential payment to different classes of creditors.
Needless to say, that the ultimate discretion of what to pay and how much to pay each class or subclass of creditors is with the Committee of Creditors. Equitable treatment has been accorded to each creditor depending upon the class to which it belongs.
Company Appeal (AT) (Insolvency) No. 855 of 2020 -4-
20. As a sequel to the aforesaid discussion it is seen that clause (b) of sub-section (2) of Section 30 of the Code stands satisfied. In terms of Section 30(2)(c), the Resolution Plan provides for management of affairs of the corporate debtor after approval of the Resolution Plan. The management of the affairs and control of the business of the corporate debtor after approval of the Resolution Plan has been provided at clause 10.3 of the Resolution plan which, inter alia, provides that the Company shall continue as a going concern and operate in its normal course of business upon implementation of the Resolution Plan. The Resolution Professional has confirmed in the compliance certificate given in Form H that the Resolution Plan provides for the management and control of the business of the corporate debtor."
3. Submissions of the Appellant:
Learned Counsel appearing for the Appellant/'Uttar Pradesh Awas Evam Vikash Parishad, (UP Housing and Development Board)' strenuously contended that the Adjudicating Authority has erroneously approved the Resolution Plan without considering the issue whether a property not belonging to the 'Corporate Debtor' can be treated as part of the property for preparation of Resolution Plan in violation of Sections 18(f) & (g) of the Code and whether such property which belongs to the Appellant and governed by the Uttar Pradesh Housing and Development Board can be construed to be the property of 'Corporate Debtor', especially in the light of the fact that there is Higher Purchase Agreement executed between Appellant and 'Corporate Debtor' on 14/12/2009 and the 'Corporate Debtor' had defaulted the payments.
There was no service of Notice on the Appellant regarding the CoC Meeting and the Resolution Plan copy was not supplied to the Company Appeal (AT) (Insolvency) No. 855 of 2020 -5- Appellant adversely affecting the rights and interests of the Appellant herein.
The 'Corporate Debtor' was liable to pay the quarterly instalment of Rs.2,07,83,225/- under the Higher Purchase Agreement for a period of 21 quarters, but the 'Corporate Debtor' miserably failed to pay the quarterly instalment. In case of three continuous defaults, the Agreement would be automatically revoked.
It is contended that the said plot cannot be sold, transferred, assigned without the prior consent of the Appellant which in the instant case was not done. The Appellant filed their 'Claim' under Form B for a total amount of Rs.1,24,37,16,022/-. Despite the fact that the Appellant had the highest 'Claim' against the 'Corporate Debtor' they were not informed about the CoC Meeting and were never appraised about the Resolution Plan. Only subsequent to the approval of the Resolution Plan, the Appellant came to know about the proceedings and immediately approached the Resolution Professional to supply a copy of Resolution Plan but the same was never complied with. The Notices of the CoC Meeting were sent to a wrong email address [email protected] whereas the correct email address is [email protected].
It is mandatory for the RP to inform the 'Operational Creditor' about the CoC Meetings and therefore the approval of the Resolution Plan is illegal as it was done without getting the consent of the Appellant and without the Appellant having participated in the CoC Meetings.
Company Appeal (AT) (Insolvency) No. 855 of 2020 -6- It is not justified that against an admitted 'Claim' of Rs.123,07,52,746/- only 10% of the admitted dues have been factored into the Resolution Plan amounting to a sum of Rs.12,30,75,276/- whereas the other 'Operational Creditors' have been granted 60% of their dues. The Learned Counsel for the Appellant placed reliance on the Judgements of the Hon'ble Supreme Court in 'Nazeer Ahmad' Vs. 'King Emperor' AIR 1936 PC 253, 'Vijay Kumar Jain' Vs. 'Standard Chartered Bank', 2019 SCC OnLine SC 103 and 'Municipal Corporation of Greater Mumbai' Vs. 'Abhilash Lal & Ors.', 2019 SCC OnLine SC 1479, in support of his case.
4. Submissions of the second Respondent/RP:
It is contended that the Appellant filed their 'Claim' for an amount of Rs.124,37,16,022/- and the Appellant admits that there is a principal outstanding amount of Rs.17,06,69,446/- payable by the 'Corporate Debtor' vide Demand Notice dated 27/09/2011, against which the Resolution Plan provides for more than Rs.12Crs./-. The Appellant pursued their remedy before the District Magistrate Ghaziabad to initiate proceedings against the 'Corporate Debtor' vide representation dated 16/02/2019.
Even after submitting their 'Claim' which was admitted by the erstwhile IRP, the Appellant continued to pursue their remedies before the District Magistrate and got the said property attached and initiated the recovery proceedings against the 'Corporate Debtor' being fully aware of the moratorium imposed under Section 14 of the Code.
Company Appeal (AT) (Insolvency) No. 855 of 2020 -7- RP had to approach the Adjudicating Authority seeking de-sealing of the said property, which relief was granted by the Adjudicating Authority vide Order dated 11/03/2020. The Appellant admitted to exercising multiple remedies despite imposition of the moratorium and in complete disregard of the CIRP Process.
RP was constrained to file IA 3688/PB/2020, seeking compliance of the Order dated 11/03/2020 wherein the Appellant has also been made a party.
12 CoC Meetings were held and 4 Resolution Plans were received and after due deliberation and balancing the interest of all stakeholders, the Resolution Plan was approved by the CoC. The Adjudicating Authority has rightly observed that the Resolution Plan has given equal treatment to all the class of Creditors. The reliance placed by the Appellant on the Judgement of the Hon'ble Supreme Court in 'Municipal Corporation of Greater Mumbai' Vs. 'Abhilash Lal & Ors.', 2019 SCC OnLine SC 1479, is completely misplaced as in that case, the land in question was a public land whereas in the present case, the land in question is a plot earmarked for the Development of Housing Project and it was with that purpose only that the Appellant had conducted an auction in which the 'Corporate Debtor' was a Successful Bidder. Moreover, in 'Municipal Corporation of Greater Mumbai' (Supra) there was no Agreement or even a Lease Deed and hence this Judgement is not Applicable in this present case.
Company Appeal (AT) (Insolvency) No. 855 of 2020 -8- The Appellant had filed their 'Claim' as an 'Operational Creditor' under Form B and therefore now taking the stand that they are actually 'Financial Creditors', is unjustifiable.
5. Submissions of Respondent No. 3/Successful Resolution Applicant:
Learned Counsel for Respondent No. 3 vehemently contended that the CoC in its commercial wisdom, after being satisfied with the feasibility and viability of the Resolution Plan, by a majority of 96.07% votes approved the plan on 17/03/2020. While approving the Plan, under Section 31(1) of the Code, the Adjudicating Authority is only required to satisfy itself as to whether the Resolution Plan meets the requirements of Section 30(2) of the Code.
The Appellant submitted its 'Claim' under Form B as an 'Operational Creditor'; the total cost payable to the Appellant was Rs.31.26Crs./- and a sum of Rs.32.8Crs./-has already been paid to the Appellant; extra FAR Cost was Rs.14Crs./- and as such, the principal due amount is Rs.12.46Crs./- and the Resolution Plan provides for payment of Rs.12.3Crs./- which includes the extra FAR already built and hence there is absolutely no injustice done to the Appellant herein.
This belated challenge to the implementation of the Resolution Plan puts the interest of all the other stakeholders including the Homebuyers, Creditors, Workers, in a quandary and would only Company Appeal (AT) (Insolvency) No. 855 of 2020 -9- worsen the already precarious situation which the 'Corporate Debtor' is currently in.
Assessment:
6. The brief point which falls for consideration is:
i. whether the Adjudicating Authority was justified in approving the Resolution Plan keeping in view the requirements of Section 30(2) of the Code.
ii. whether the Appellant herein was unfairly dealt with regarding the settlement of its 'Claim', under the subject Resolution Plan.
7. At the outset, we address to the contention of the Learned Counsel for the Appellant that the said property does not belong to the 'Corporate Debtor' and therefore could not have been included in the pool of assets. A brief perusal of the record shows that the Appellant had issued an Allotment Letter No. 1206 dated 11/04/2008 in favour of the 'Corporate Debtor' and subsequently another Allotment Letter No. 2974 dated 02/12/2009 with respect to the subject plot. Thereafter a Higher Purchase Agreement dated 14/12/2009 was also entered into between the parties creating an interest of the 'Corporate Debtor' in the said plot. Clause 10 of the Higher Purchase Agreement, relied upon by the Appellant, pertains to selling, transferring, assigning of the plot by the 'Corporate Debtor' in favour of a third party.
Sl. No. Date Event
1. 11.04.2008 Allotment Letter issued by the Appellant in favor of the Corporate Debtor for lease of Rs.9051/- per sq. mt.
2. 02.12.2009 Revised Allotment Letter issued by the Appellant in favor of the Corporate Debtor for lease of Rs.10250.33/- per sq. mt.
Company Appeal (AT) (Insolvency) No. 855 of 2020 -10-
3. 14.12.2009 Hire-Purchase Agreement entered into between the Appellant and the Corporate Debtor for development of a Group Housing Project.
4. 27.09.2011 Notice by Appellant seeking payment of dues stating that in case of non-payment, cancellation and recovery of land revenue proceedings shall be sent initiated.
5. 09.01.2012 Final Recovery Notice for payment of dues issued by the Appellant. The Appellant also gave the option of a OTS scheme which could be availed.
6. 31.12.2012 Another Demand Notice seeking payment of dues issued by the Appellant stating that the same is being recovered as arrears of Land Revenue.
7. 29.01.2013 Order of the Hon'ble Allahabad High Court in W.P. (C) No. 4840/2013 filed by the Corporate Debtor directing the Corporate Debtor to deposit Rs.4.5 Cr. Subject to which, recovery action by the Appellant would remain stayed.
8. 09.02.2016 Order of the Hon'ble Allahabad High Court in W.P. (C) No. 4521/2016 filed by the Corporate Debtor directing the Appellant to decide a lower rate of charging interest on the dues.
9. 21.06.2016 Order of the Hon'ble Allahabad High Court in W.P. (C) No. 29003/2016 filed by the Corporate Debtor dismissing the Writ Petition and allowing the Appellant to continue with recovery proceedings.
10. 05.12.2017 Order of the Hon'ble Allahabad High Court in W.P. (C) No. 12920/2017 filed by the Corporate Debtor dismissing the Writ Petition and allowing the Appellant to continue with recovery proceedings.
11. 20.04.2017 OTS Demand Letter issued by the Appellant seeking payment of OTS amount.
12. 25.01.2018 Order of the Hon'ble Supreme Court in SLP (C) No. 2151/2018 filed by the Corporate Debtor, where the Hon'ble Court recorded the statement of the Corporate Debtor to deposit the principal amount and half of the interest due.
13. 02.08.2018 Order of the Hon'ble Supreme Court in SLP (C) No. 2151/2018 dismissing the SLP as withdrawn.
14. 16.02.2019 Letter of the Appellant to the District Magistrate, Ghaziabad intimating it about the large defaulters and requesting the District Magistrate to take appropriate action.
15. 30.05.2019 CIRP of the Corporate Debtor commenced by the NCLT.
16. 15.11.2019 NCLT directed the District Magistrate, Ghaziabad to not sell the land in view of the moratorium.
Company Appeal (AT) (Insolvency) No. 855 of 2020 -11-
17. 20.12.2019 NCLT directed the RP to file an affidavit regarding the project of the Corporate Debtor.
18. 11.03.2020 NCLT directed de-sealing of the Project Land.
19. 04.08.2020 Impugned Order approving the Resolution Plan.
The aforenoted table shows that there were instalments which were due but the Appellant did not cancel the Agreement and the right of revocation needs to be exercised by following due process of law which has admittedly not taken place prior to the Insolvency commencement date. All the dues can be adequately dealt with under the provisions of the Code. Having regard to the fact that the land in question was allotted to the highest Bidder, the 'Corporate Debtor' herein for Development of Group Housing Project, and having executed a Higher Purchase Agreement dated 14/12/2009 by virtue of which, a right of possession was created in favour of the 'Corporate Debtor', now the stand of the Appellant that the 'Corporate Debtor' does not have any right on the land, cannot be sustained. The rights created under the Higher Purchase Agreement cannot be extinguished without following due process of law.
8. If there was any violation of the terms of the Higher Purchase Agreement there are no substantial grounds given by the Appellant herein for not exercising their right to cancel the Agreement or the Allotment Letters. It is also evident from the record that the Appellant had filed their 'Claim' as an 'Operational Creditor' under Form B on 08/08/2019:
Company Appeal (AT) (Insolvency) No. 855 of 2020 -12- Company Appeal (AT) (Insolvency) No. 855 of 2020 -13- (Emphasis Supplied) Company Appeal (AT) (Insolvency) No. 855 of 2020 -14-
9. From the aforenoted form B, it is clear that the Appellant had claimed an amount of Rs.1,24,37,16,022/- as an 'Operational Creditor' on the ground that some instalments together with penal interest were due under the Higher Purchase Agreement and also under the head of FAR Charges. Therefore, the belated stand of the Appellant that the property belongs to them and therefore they should be included in the same category as the 'Claims' of 'Financial Creditor' is untenable. We are also conscious of the fact that the Resolution Plan was approved way back two years ago on 17/03/2020 with a majority of 96.07% votes in the 12th CoC Meeting.
10. Now we address ourselves to the contention of the Learned Counsel for the Appellant that the Resolution Plan was never communicated to the Appellant herein and that it was sent to the wrong email Id. A brief perusal of the Form B reproduced in para 8 shows that email Id is [email protected]. It is also seen from the record that the emails were sent to the Appellant on 26/12/2019, 15/01/2020, 20/01/2020, 22/01/2020, 21/02/2020, 04/03/2020 and 12/03/2020. On 11/08/2020, the Resolution Professional informed the Appellant about the approval of the Resolution Plan vide Order dated 04/08/2020.
11. In a catena of Judgments, the Hon'ble Supreme Court has laid down that the commercial wisdom of the CoC is non-justiciable unless it does not comply with the provisions of Section 30(2) of the Code. The Hon'ble Supreme Court in 'K Sashidhar' Vs. 'Indian Overseas Bank & Ors.' 2019 12 SCC 150, has observed as follows:
"57. ...Indubitably, the remedy of appeal including the width of jurisdiction of the appellate authority and the Company Appeal (AT) (Insolvency) No. 855 of 2020 -15- grounds of appeal, is a creature of statute. The provisions investing jurisdiction and authority in NCLT or NCLAT as noticed earlier, have not made the commercial decision exercised by CoC of not approving the resolution plan or rejecting the same, justiciable. This position is reinforced from the limited grounds specified for instituting an appeal that too against an order "approving a resolution plan" under Section 31. First, that the approved resolution plan is in contravention of the provisions of any law for the time being in force. Second, there has been material irregularity in exercise of powers "by the resolution professional" during the corporate insolvency resolution period. Third, the debts owed to operational creditors have not been provided for in the resolution plan in the prescribed manner. Fourth, the insolvency resolution plan costs have not been provided for repayment in priority to all other debts. Fifth, the resolution plan does not comply with any other criteria specified by the Board. Significantly, the matters or grounds-- be it under Section 30(2) or under Section 61(3) of the I&B Code --are regarding testing the validity of the "approved" resolution plan by CoC; and not for approving the resolution plan which has been disapproved or deemed to have been rejected by CoC in exercise of its business decision."
[emphasis supplied]
12. The Hon'ble Supreme Court in 'Ghanashyam Mishra and Sons Private Limited' Vs. 'Edelweiss Asset Reconstruction Company Limited Through the Director & Ors.', (2021) 166 SCL 237 (SC), dealing with the issue of commercial wisdom CoC and the jurisdiction of the Tribunal to interfere in the same has observed as follows:-
"150. It will therefore be clear, that this Court, in unequivocal terms, held, that the appeal is a creature of statute and that the statute has not invested jurisdiction and authority either with NCLT or NCLAT, to review the commercial decision exercised by CoC of approving the Resolution Plan or rejecting the same.
Company Appeal (AT) (Insolvency) No. 855 of 2020 -16-
151. The position is clarified by the following observations in paragraph 59 of the judgment in the case of K. Sashidhar (supra), which reads thus:
"59. In our view, neither the adjudicating authority (NCLT) nor the appellate authority (NCLAT) has been endowed with the jurisdiction to reverse the commercial wisdom of the dissenting financial creditors and that too on the specious ground that it is only an opinion of the minority financial creditors....."
152. This Court in Committee of Creditors of Essar Steel India Limited through Authorised Signatory (supra) after reproducing certain paragraphs in K. Sashidhar (supra) observed thus:
"Thus, it is clear that the limited judicial review available, which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors, has to be within the four corners of Section 30(2) of the Code, insofar as the Adjudicating Authority is concerned, and Section 32 read with Section 61(3) of the Code, insofar as the Appellate Tribunal is concerned, the parameters of such review having been clearly laid down in K. Sashidhar"
153. It can thus be seen, that this Court has clarified, that the limited judicial review, which is available, can in no circumstance trespass upon a business decision arrived at by the majority of CoC.
154. In the case of Maharashtra Seamless Limited (supra), NCLT had approved the plan of appellant therein with regard to CIRP of United Seamless Tubulaar (P) Ltd. In appeal, NCLAT directed, that the appellant therein should increase upfront payment to Rs.597.54 crore to the "financial creditors", "operational creditors" and other creditors by paying an additional amount of Rs. 120.54 crore. NCLAT further directed, that in the event the "resolution applicant" failed to undertake the payment of additional amount of Rs.120.54 crore in addition to Rs. 477 crore and deposit the said amount in escrow account within 30 days, the order of approval of the 'resolution plan' was to be treated to be set aside.
Company Appeal (AT) (Insolvency) No. 855 of 2020 -17- While allowing the appeal and setting aside the directions of NCLAT, this Court observed thus:
"30. The appellate authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the adjudicating authority has to be satisfied that the requirement of subsection (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an adjudicating authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the adjudicating authority in limited judicial review has been laid down in Essar Steel [Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta, (2020) 8 SCC 531], the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the appellate authority ought to have interfered with the order of the adjudicating authority in directing the successful resolution applicant to enhance their fund inflow upfront."
155. This Court observed, that the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. This Court clearly held, that the appellate authority ought not to have interfered with the order of the adjudicating authority by directing the successful resolution applicant to enhance their fund inflow upfront.
156. It would thus be clear, that the legislative scheme, as interpreted by various decisions of this Court, is unambiguous. The commercial wisdom of Company Appeal (AT) (Insolvency) No. 855 of 2020 -18- CoC is not to be interfered with, excepting the limited scope as provided under Sections 30 and 31 of the I&B Code."
(Emphasis Supplied)
13. The Hon'ble Supreme Court in the aforenoted Judgements has observed that commercial decision of the CoC is non-justiciable unless it is in violation of any law for the time being in force. The Adjudicating Authority has a very limited jurisdiction and should only examine whether the Resolution Plan meets the essential requirements as provided for under Section 30(2) of the Code.
14. Subsequent to the RP admitting the 'Claim' of Rs.1,23,07,52,746/-, the said 'Claim' was included in the information memorandum and the Successful Resolution Applicant proposed an amount of Rs.12,30,75,275/- which is 10% of the admitted 'Claim' towards satisfaction of the Appellant dues, even though the Liquidation value due to the Appellant under Section 30(2)(b) of the Code was NIL. The Hon'ble Supreme Court has time and again observed that it is the CoC which has to decide the percentage of haircut, the sub classes between 'Operational Creditors' and the manner in which the amount is to be distributed. Therefore, for all the foregoing reasons this Tribunal is of the considered view that there is no illegality or infirmity in the approval of the Resolution Plan by the Adjudicating Authority.
15. At the cost of repetition, it is significant to mention that the Resolution Plan was approved by 96.07% votes way back on 17/03/2020 and the Plan has also been implemented. We do not wish to set the clock back and jeopardize the interest of the stakeholders apart from holding that the Company Appeal (AT) (Insolvency) No. 855 of 2020 -19- Resolution Plan meets all the essential requisites as provided for Section 30(2) of the Code and therefore we see no substantial grounds to interfere with the well-reasoned Order of the Adjudicating Authority.
16. For all the forgoing reasons, this Appeal fails and is accordingly dismissed. No Order as to costs.
17. Company Appeal (AT) (Insolvency) No. 845 of 2020 was dismissed as withdrawn vide Order dated 13/07/2021.
18. The Registry is directed to upload the Judgement on the website of this Tribunal and send a copy of this Judgement to the Learned Adjudicating Authority (National Company Law Tribunal, Principal Bench, New Delhi) forthwith.
[Justice Anant Bijay Singh] Member (Judicial) [Ms. Shreesha Merla] Member (Technical) NEW DELHI 04th April, 2022 himanshu Company Appeal (AT) (Insolvency) No. 855 of 2020