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Any clause in Resolution Plan which requires Creditors to take a hair-cut cannot be construed as being violative of Section 30(2) of the IBC | When Resolution Plan has been approved by CoC, irrespective of whether a single-member CoC or multi-member CoC, the decision becomes a collective business decision – Yogesh Kelkar and Ors. Vs. RP of Anudan Properties Pvt. Ltd. – NCLAT New Delhi

Hon’ble NCLAT held that:

(i) When the resolution plan has been approved by the CoC with requisite majority and after holding due deliberations, the decision becomes a collective business decision.
(ii) A matter relating to approval of resolution plan which is indubitably distinct and unrelated to a scheme of compromise or arrangement contemplated under the Companies Act.
(iii) As regards approval of resolution plan is concerned, the IBC provides for 66% vote share and once this threshold is met, the decision of the CoC, irrespective of whether it is a single-member or multi-member, the decision of the CoC becomes sacrosanct and binding on all stakeholders.
(iv) The Adjudicating Authority cannot substitute its views with the commercial wisdom of the CoC in rejecting the resolution plan simply because the Appellants are aggrieved by the amounts proposed to be paid to them under the resolution.
(v) Merely because there is a reduction in the claim of any creditor does not make the resolution plan fall foul of law. Any clause in the resolution plan which requires creditors to take a hair-cut cannot be construed as being violative of Section 30(2) of the IBC.
(vi) Once the CoC has approved the resolution plan by requisite majority and the same is in consonance with applicable provisions of law and nothing has come to light to show that any material irregularities have been committed in the conduct of the CIRP proceedings, the same cannot be a subject matter of judicial review and modification.

Any clause in Resolution Plan which requires Creditors to take a hair-cut cannot be construed as being violative of Section 30(2) of the IBC | When Resolution Plan has been approved by CoC, irrespective of whether a single-member CoC or multi-member CoC, the decision becomes a collective business decision – Yogesh Kelkar and Ors. Vs. RP of Anudan Properties Pvt. Ltd. – NCLAT New Delhi Read Post »

Jaiprakash Associates Ltd. Vs. Jaypee Infratech Ltd. – NCLAT New Delhi

By the Impugned Order dated 07th March, 2023, the Adjudicating Authority issued direction for appropriation of amount of Rs. 750 Crores as per the Judgment of the Hon’ble Supreme Court, reported at (2021) ibclaw.in 63 SC.

NCLAT held that:
(i) In Company Appeal (AT) (Ins.) No. 302 of 2023, we have taken the view that direction of the Adjudicating Authority in Para 111 for payment of proportionate interest to the JIL on its receivables is unsustainable. Company Appeal (AT) (Ins.) No. 302 of 2023 thus deserves to be partly allowed setting aside the direction of the Adjudicating Authority in Para 111 to make payment of proportionate interest on the receivables by JIL. Other prayers of the Appellant in Company Appeal (AT) (Ins.) No. 302 of 2023 are rejected.
(ii) In Company Appeal (AT) (Ins.) No. 507 of 2023, finding of issues no. (a), (d) and (e) (as contained in Para 13 of the impugned order) deciding issues in favour of JAL are unsustainable. The JAL was not entitled to adjust/deduct aforesaid amounts from the amount receivable by JIL. We notice that the Adjudicating Authority in operative portion of the order in Paras 109 to 111 has ultimately not deducted or adjusted the aforesaid amounts from the amount receivable by JIL. The direction issued by the Adjudicating Authority in Para 109, 110 and 111 are affirmed except the direction to proportionate interest, as indicated above. Company Appeal (AT) (Ins.) No. 507 of 2023 is thus disposed of holding that findings of Adjudicating Authority on Issues No. (a), (b), (d) and (e) are unsustainable.

Jaiprakash Associates Ltd. Vs. Jaypee Infratech Ltd. – NCLAT New Delhi Read Post »

Whether CoC can take decision to re-publish Form G(EOI) prior to expiry of 330 days of CIRP time limit even one Resolution Plan is available for consideration – Mr. Ramneek Goel Vs. Mr. Sunil Bajaj – NCLAT New Delhi

NCLAT has affirmed the decision of the NCLT Chandigarh Bench and held that:
(i) The present is a case where the Resolution Plan of the Appellant was under consideration, when RP received an email from Respondent No.1 offering Rs.27.06 crores, which information was placed by RP before the CoC. The Appellant was asked to increase its offer, which he denied. The CoC decided to re-publish Form-G after due deliberations.
(ii) The present is not a case where CoC accepted the Resolution Plan of Respondent No.1 and proceeded to examine the Resolution Plan.
(iii) The present is a case where 300 days were expiring on 15.04.2021 and prior to expiry of the 300 days period, a decision was taken to re-publish Form-G. The CoC has reason to take a decision since they received an email from Respondent No.1 offering higher value.
(iv) The Adjudicating Authority has full authority to examine all issues arising out of insolvency resolution process including issue of alleged breach of confidentiality.

Whether CoC can take decision to re-publish Form G(EOI) prior to expiry of 330 days of CIRP time limit even one Resolution Plan is available for consideration – Mr. Ramneek Goel Vs. Mr. Sunil Bajaj – NCLAT New Delhi Read Post »

ASREC (India) Ltd. & Anr. Vs. State of Maharashtra & Ors. – Bombay High Court

Hon’ble High Court observed that the mortgage of the secured asset created in favour of Oriental Bank of Commerce and the same was registered under CERSAI on 17th March, 2012. The Sales Tax Authority have their charge noted in the mutation entry only some time in the year 2016. They have till date not registered their charge with CERSAI as contemplated under Section 26-B(4) of the SARFAESI Act, 2002. Once this is the position, we find that under Section 26-E of the SARFAESI Act, 2002, the debts of the 1st Petitioner would have to be paid in priority over all other debts and all revenue, taxes, cesses and other debts payable to the Central Government or State Government or Local Authority. In the view that we take, we are supported by the decision of the Full Bench of this Court in the case of Jalgaon Janta Sahakari Bank Ltd. & Anr. Vs. Joint Commissioner of Sales Tax Nodal (2022) ibclaw.in 192 HC.

ASREC (India) Ltd. & Anr. Vs. State of Maharashtra & Ors. – Bombay High Court Read Post »

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