Dongwoo Surface Tech (India) Pvt. Ltd. Vs. Mr. S. Dehaleesan RP of Bhatia Coke & Energy Ltd. and Ors. – NCLT Chennai Bench
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In this landmark judgment, Hon’ble Madras High Court has held that:
(i) The protection to the resolution professional given under Section 233 of IBC is obviously only in respect of act done or intended to be done in good faith under the code. The failure or omission to provide safety measures in the factory cannot be stretched to inaction.
(ii) The resolution professional is the occupier of the factory (as defined under Section 2(n) of the Factories Act, 1948) and he cannot abdicate his duties and responsibility of providing necessary safety measures in the factory as mandated in the Factories Act.
(iii) The expression used in section 17 of the Code explicitly say that the resolution professional is the person who is vested with absolute control of the Corporate Debtor company. While so, for the violation or omission in the factory premises, Resolution Professional is responsible for the Proceedings if any, initiated against Resolution Professional under the Factories Act in his capacity as occupier. The said proceedings will not be covered under section 14 or 233 of the Code.
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M/s Bhatia Coke & Energy Ltd. – NCLT Chennai Bench Read Post »
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NCLT held that there must be an absolute clarity from the CoC members, whether to vote for or against the resolution plan and there should never be any ambiguity on the viability of the plan and if the Applicant had any doubts about the viability of the plan, the only option available to the Applicant herein is to vote against the plan, when a complete decision of approval of the plan has been given to the CoC, the CoC members have to exercise their commercial wisdom with an absolute clarity.
The argument of the Applicant Counsel is that the voting was done “under protest” to avoid a liquidation order is not acceptable. Further, there is no provision under the IBC for the Applicant to vote “under protest”.
We cannot allow the CoC members who have acted in favour of the resolution plan, and subsequently come up with another new “commercial wisdom” regarding the viability of the plan and the procedural lapses of the RP. The Applicant having voted in favour of the resolution plan is estopped from filing this application seeking the abovementioned directions.
The issues raised by the Applicant regarding the procedural irregularities in the conduct of the CoC meeting and about the RP are not addressed at this stage.
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