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3. The Resolution which was placed before the Committee of Creditors for payment of performance linked payment incentive fee was not approved by 91.55 % vote. I.A. No. 222/2023 was filed questioning the said decision of CoC and seeking a direction to make the payment of performance linked incentive fee which came to be rejected.

4. Learned Counsel for the Appellant challenging the Order of the Adjudicating Authority contends that Adjudicating Authority failed to consider the decision of the CoC rejecting the claim which was not based on any reasonable basis. Power given in the Regulation to the CoC to take a decision to pay performance linked incentive fee has to be on the basis of relevant criteria and material and cannot be arbitrarily taken. It is submitted that when the Resolution Professional was able to maximize the value of Corporate Debtor he was entitled to performance linked incentive fee. It is submitted that decision of the CoC refusing to accept the claim of the Appellant for performance linked incentive fee is not in accordance with the Regulation 34B.

(b) submission of application to liquidate the corporate debtor under section 33;

(c) submission of application for withdrawal under section 12A; or

(d) order for closure of corporate insolvency resolution process; whichever is earlier.

Performance-linked incentive fee for timely resolution.

3. In cases where resolution plan is submitted to the Adjudicating Authority within the time period given in table-2 from the insolvency commencement date, performance-linked incentive fee as per table-2 may be paid to the resolution professional, after approval of such resolution plan by the Adjudicating Authority on commencement of payment to creditors by the resolution applicant. Table-2: Performance-linked incentive fee for timely resolution Time period from insolvency Fee as % of commencement date Realisable Value

In this case, fee payable to the resolution professional shall be as under:

(i) Performance-linked incentive fee for timely resolution: 0.75% of Rs. 100 crore = Rs.75 lakh, and

(ii) Performance-linked incentive fee for value maximisation: 1.00% of Rs. 80 crore (Rs.100 crore - Rs.20 crore) = Rs.80 lakh."

Company Appeal (AT) (Insolvency) No. 809 of 2023

8. The Appellant in the Application has claimed incentive fee of Rs. 21,33,000/- as performance linked incentive fee for timely resolution and Rs. 11,64,256/- as performance linked incentive fee for value maximization.

14. The decision of the CoC dated 01.12.2022 as noted above is a business decision of the CoC while approving the Resolution Plan including the payments which have to be made to the various creditors, stakeholders as well as to the Insolvency Professional Cost, which have to be deliberated and voted upon by the Committee of Creditors. The payment of Performance Linked Incentive Fee in event it is paid to the Resolution Professional shall be part of the Insolvency Resolution Cost which affects the entitlement of stakeholders when the Insolvency Resolution Cost is increased by adding performance linked incentive fee it is bound to reduce the payment which is to be received by the various stakeholders under the Resolution Plan, since the amount which is proposed in the Resolution Plan is a fixed amount. The decision of the CoC dated 01.12.2022 by approving the Resolution Plan which also contains consideration of resolution regarding performance linked incentive fee is a commercial decision of the Committee of Creditors. The law is well settled that the commercial decision of the CoC has to be given due credence and the Adjudicating Authority or the Appellate Authority is not to interfere in the commercial decision of the CoC unless it does not fulfill the requirement of Section 30 of the Code.