MANU/NL/0464/2021

IN THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL, CHENNAI BENCH

Company Appeal (AT) (CH) (Insolvency) Nos. 166 and 174 of 2021
Decided On: 25.10.2021
Appellants: Committee of Creditors of Meenakshi Energy Ltd.
Vs.
Respondent: Consortium of Prudent ARC Limited & Vizag Minerals and Logistics
P. Ltd. and Ors.
Hon'ble Judges/Coram:
M. Venugopal, J. (Actg. Chairperson) and Kanthi Narahari, Member (T)
Counsels:
For Appellant/Petitioner/Plaintiff: Ramji Srinivasan, Sr. Advocate for Edward James,
Sumant Batra, Aditi Deshpande and Jash Shah, Advocates
For Respondents/Defendant: Joy Saha, P.H. Arvindh Pandian, Sr. Advocates, Rubaina
Khatoon, H.S. Hredai, Sumant Batra, Aditi Deshpande, Advocates, Jash Shah, Advocate
f o r Ravishankar Devara Konda, Advocate, Ramji Srinivasan, Sr. Advocate for Edward
James, Advocate and Bishwajit Dubey, Advocate
Case Note:
Insolvency - Resolution process - Extension of time for - Sections 12, 30 and
60(5) of Insolvency and Bankruptcy Code, 2016 (IBC), Regulation 36A of
Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for
Corporate Persons) Regulations, 2016 (CIRP Regulations) - Present appeal
impugns order passed in application filed under Section 60(5) of IBC read
with Regulation 36A of CIRP Regulations - Whether CoC can extend timelines
for RFRP while two Resolution Plans submitted before CoC as per earlier
timelines are for consideration before them - Held, power of 'Adjudicating
Authority' to extend further time limit cannot be extended beyond 90 days - It
is maximum period in Section 12 of IBC - Section 12(3) of IBC further enjoins
that any extension of CIRP under this Section shall not be granted more than
once - Section 12(3) of IBC is to be read with third proviso to Section 30(4) of
IBC - Maximum period of 30 days specified in second proviso is permissible, as
only exception to extension of period not being granted more than once -
Where CIRP is pending and not completed within 330 days, only in
exceptional/extraordinary case, outer time limit of 330 days can be extended
- Second Respondent/Resolution Professional directed to place only
'Resolution Plan', which were submitted before due date, before 'Committee
of Creditors' for its consideration - Appeal disposed of. [104], [115]
JUDGMENT
(Virtual Mode)
M. Venugopal, J. (Actg. Chairperson)
Company Appeal (AT) (CH) (INS.) No. 166 of 2021
Preface:

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1 . The Appellant/Committee of Creditors of Meenakshi Energy Limited, Hyderabad
through State Bank of India has preferred the instant Company Appeal (AT) (CH) (INS.)
No. 166 of 2021 being dissatisfied with the impugned order dated 24.06.2021 in I.A.
244 of 2021 in CP(IB) No. 184/HDB/7/2019 passed by the 'Adjudicating Authority'
(National Company Law Tribunal, Bench-II, Hyderabad).
Company Appeal (AT) (CH) (INS.) No. 174 of 2021
2 . The Appellant/Resolution Professional of Meenakshi Energy Limited, Hyderabad has
filed the present Company Appeal (AT) (CH) (INS.) No. 174 of 2021 as an 'aggrieved
person' in respect of the certain observations and findings made against the
Appellant/Resolution Professional and the Second Respondent/Committee of Creditors
of Meenakshi Energy Limited that they had acted in a manner inconsistent with the Code
and 'CIRP' Regulations etc., in the impugned order dated 24.06.2021 in I.A. 244 of 2021
in CP(IB) No. 184/HDB/7/2019 (filed under Section 60(5) of the Code read with
Regulation 36A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution
Process for Corporate Persons) Regulations, 2016 ('CIRP' Regulations) passed by the
'Adjudicating Authority' (National Company Law Tribunal, Bench-II, Hyderabad).
3 . The 'Adjudicating Authority'/National Company Law Tribunal, Bench-II, Hyderabad
while passing the impugned order in I.A. 244 of 2021 in CP(IB) No. 184/HDB/7/2019
on 24.06.2021 (Filed by Consortium of Prudent Asset Reconstruction Company Ltd. and
M/s. Vizag Minerals and Logistics Pvt. Ltd./Applicant) at paragraph 13 to 18 had
observed the following:
13. "We heard the Senior Counsel appearing for the Appellant, Senior Counsel
appearing for the Resolution Professional and Senior Counsel appearing for
Vedanta Limited. The issue before us for consideration are:
(i) Whether the CoC can extend the timelines for RFRP while two
Resolution Plans submitted before the CoC as per the earlier timelines
are for consideration before them.
(ii) Whether the CoC is empowered to keep on extending timelines
beyond 330 days in the guise of maximization of value.
14. To arrive at a definite and conclusive answer, we refer to IBC, 2016 and
CIRP Regulations.
Section 30 laid down that a resolution applicant may submit a resolution plan
to the resolution professional prepared on the basis of the information
memorandum. Whereas Regulation 36A(5) speaks of the methodology of
submission of EoI by the Prospective Resolution Applicants. The Prospective
Resolution Applicants who meet the requirements of the invitation for
expression of interest, shall submit expression of interest within the "time
specified" in the invitation under clause (b) of sub-regulation (3). Regulation
36A(6) also very clearly mentions that the EoIs received after the time specified
in the invitation under Clause (b) of sub-regulation (3) shall be rejected.
1 5 . Regulation 36B deals with Request for Resolution Plan and Regulation
36B(2) details each step in the process and the manner and purposes of
interaction between the resolution professional and the prospective resolution
applicant, along with corresponding timelines and Regulations 36B(6) deals
with extension of timelines for submission of resolution plans with the approval

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 of committee. Regulation 36B(7) empowers the resolution professional to re-
issue request for resolution plan with the approval of the committee, if the
resolution plans received in response to an earlier request are not satisfactory,
subject to the condition that the request is made to all prospective resolution
applicants in the final list.
1 6 . Regulation 36A and Regulation 36B(2) clearly speaks that timelines
specified are mandatory. In the instant case, the 330 days period completed on
08.03.2021. The Applicant claimed that two resolution plans were placed before
the CoC for consideration as per the timelines specified in RFRP and before the
timelines expired, the Resolution Professional has further extended the time at
the request of another Resolution Applicant viz Vedanta Limited, who is
qualified as prospective Resolution Applicant in final list of EoI. The Two
Resolution Plans pending before the committee were deliberated at length and
the contents known to all the CoC members. The CoC in its commercial wisdom
has requested the Resolution Professional to extend the RFR timelines beyond
330 days with a view to given an opportunity to Vedanta Limited to submit their
Resolution Plan in the name of value maximization of Corporate Debtor, albeit
opportunity was given to the other two resolution applicants to revise their
proposal. As this being status, we are of the view that CoC and Resolution
Professional have taken the process into their own hands even though they
cannot extend timelines beyond 330 days unilaterally without the approval of
Adjudicating Authority. This action of Resolution Professional is contrary to the
letter and spirit of the Code and its Regulations.
17. The moot point to be decided whether the CoC is correct in extending the
RFRP timelines when two Resolution Plans are already before them for
consideration and negotiation were held with these two resolution applicants,
just to accommodate another Resolution Applicant who had qualified in the EoI.
In our view, the CoC and the Resolution Professional has categorically violated
the timelines in the name of value maximization, thereby kept on extending the
process beyond 330 days and CoC in its wisdom has stepped into the shoes of
the Adjudicating Authority and extended the period without any rhyme or
reason. The CoC has no business to extend RFRP beyond 330 days without
specific approval of the Adjudicating Authority. We strongly express our
reservations on the decision of CoC as well as RP in this regard and accordingly
direct the Resolution Professional/CoC to consider the two plans received prior
to last extension of RFRP timeline i.e. received before 330 days period to
complete the CIRP."
and ultimately allowed the 'Interlocutory Application' with the aforesaid direction.
Appellant/Second Respondent's Submissions (In Both Appeals)
4 . The Learned Counsel for the Appellant/Second Respondent submits that the
'Adjudicating Authority' (National Company Law Tribunal, Bench-II, Hyderabad Bench)
by virtue of the 'impugned order' dated 24.06.2021 had directed the
Appellant/Committee of Creditors and the 2nd Respondent/Resolution Professional to
only consider the 'Resolution Plan' received before the expiry of 330 days of 'CIRP'
period forego 'Resolution Plans' received subsequently, although, they are far superior
'commercially' and 'financially', by ascribing unjustifiable reason that such Plan was
received belatedly post expiry of 330 days, despite, extending the period of 'CIRP' by 45
days. In short, it is the stand of the Appellant that the impugned order is untenable in

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law, against equity and it is an erroneous one in the eye of law.
5 . The Learned Counsel for the Appellant/Second Respondent contends that the
'impugned order' of the 'Adjudicating Authority' had addressed the First
Respondent/'Prospective Resolution Applicants' Application on merits directly, without
even addressing the preliminary issue of 'Maintainability' and 'Locus-standi' of the First
Respondent/'Prospective Resolution Applicant to raise any objection in the 'Corporate
Insolvency Resolution Process'.
6 . The Learned Counsel for the Appellant/Second Respondent points out that the
'prospective Resolution Applicant' as per the judgment of the Hon'ble Supreme Court in
Arcelor Mittal's case (vide judgment dated 04.10.2018 in Civil Appeal No. 9402-9405 of
2018) reported in MANU/SC/1123/2018 has no vested right to raise the objections to
the 'CIRP' seeking to (1) have its 'Resolution Plan' approved; and/or (2) to have its
'Resolution Plan' being considered in exclusivity or in priority over the 'Resolution Plan'
of other 'Resolution Applicants'.
7 . The Learned Counsel for the Appellant/Second Respondent takes a stand that the
'impugned order' passed by the 'Adjudicating Authority' had failed to appreciate that the
First Respondent/'Prospective Resolution Applicant's' Application was a premature one
at the moment, since no 'Resolution Plan' was approved for the 'Corporate Debtor' in
'CIRP'.
8 . The Learned Counsel for the Appellant/Second Respondent proceeds to project an
argument that I.A. No. 120 of 2021 (an extension Application) was filed by the
Resolution Professional (2nd Respondent) praying for an extension of time of 60 days,
after the approval of the 'Committee of Creditors' on 03.03.2021 itself and the same
was pending before the 'Adjudicating Authority'. According to the Learned Counsel for
the Appellant, the said 'Interlocutory Application' was filed before the receipt of any
'Resolution Plans' and with a view to provide the 'Committee of Creditors' and the
'Resolution Professional' to exercise all powers under the provisions of the I&B Code,
2016 and the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process
for Corporate Persons) Regulations, 2016 (CIRP Regulations) including under Regulation
36B(7) thereof, if the need had arisen.
9 . The grievance of the Appellant/Second Respondent is that the 'Adjudicating
Authority' (National Company Law Tribunal, Bench-II, Hyderabad) had proceeded to
hear and determine the 'Application' projected by the First Respondent (Prospective
Resolution Applicant on 02.06.2021) almost three months after filing of the 'Extension
Application' and very nearly 45 days after the communication of the 'Committee of
Creditors' decision of 21st April, 2021 and passed the 'impugned order' without firstly
deciding an 'Extension Application' and without considering the law laid down by the
Hon'ble Supreme Court and the 'Appellate Tribunal' in number of judgments including
'Arcelor Mittal's' case which holds that the First Respondent/'Prospective Resolution
Applicant' does not have any 'Locus' to file such Application and the decision of Hon'ble
Supreme Court in Kalpraj Dharamshi & Anr. Vs. Kotak Investment Advisors Limited and
Anr., whereby it is held that in view of the paramount importance given to the decision
of the 'Committee of Creditors', which is to be taken on the basis of commercial
wisdom.
10. The contention of the Learned Counsel for the Appellant/Second Respondent is that
the 'Committee of Creditors' consideration of 'Resolution Plan' received subsequent to
330 days was (1) pursuant to the decision (approved by 95.71%) to reissue the request

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for 'Resolution Plans' in the 20th 'Committee of Creditors' meeting and (2) during the
pendency and subject to the 'Extension Application', which was finally allowed on
15.07.2021.
11. Also that, it is projected on the side of the Appellant/Second Respondent that in
view of the fact that time was granted by the 'Adjudicating Authority' (National
Company Law Tribunal, Bench-II, Hyderabad) in any event, the said 'Authority' had no
reason to interfere with the decision of the 'Committee of Creditors' and the 'Resolution
Professional' based on the binding decision of the Hon'ble Supreme Court of India in
Kalpraj Dharamshi & Anr. Vs. Kotak Investment Advisors Limited and Anr.
12. It is represented on behalf of the Appellant/Second Respondent that the decision of
the 'Committee of Creditors' (arrived at by a thumping majority) was meant to provide
an equal opportunity to all the 'Prospective Resolution Applicants' in the final list to
submit fresh/revised plans in accordance with the Regulation 36B(7) of the 'CIRP
Regulations', because of the fact that the Plans received earlier that too were not found
satisfactory. As a matter of fact, it was the decision of the 'Committee of Creditors'
taken at the meeting held on 20.04.2021 by 95.71% majority and in tune with the
judgment of the Hon'ble Supreme Court in Kalpraj Dharamshi's case culminated in the
large increase in the overall value of the 'Resolution Plans' from all the 'Prospective
Resolution Applicants' (including the First Respondent/'Prospective Resolution
Applicant').
1 3 . The Learned Counsel for the Appellant/Second Respondent submits that the
'impugned order' had ignored the prime fact that the no 'Resolution Plan' was approved
earlier to the expiry of 330 days for the Corporate Debtor and that if the 'Committee of
Creditors' is expected not to consider fresh plans post 330 days, then the 'Committee of
Creditors' is equally not expected to even consider the existing plans, in the absence of
an extension order.
14. The Learned Counsel for the Appellant/Second Respondent submits that nowhere
the 'I&B Code, 2016' mentions that the 'Committee of Creditors' and the 'Resolution
Professional' is to seek only the revisions and not fresh submissions of the 'Resolution
Plans' in such extended process, despite it being in the larger interests of the 'Stake
holders of the Corporate Debtor'. Furthermore, for maximising the interest of one
'Prospective Resolution Applicant', the interest of various stake holders, at whose
instance the 'CIRP' is carried on may not be prejudiced.
1 5 . The Learned Counsel for the Appellant/Second Respondent forcefully comes out
with a plea that the 'impugned order' passed by the 'Adjudicating Authority' erroneously
notes that the 'Committee of Creditors' and the 'Resolution Professional' had usurped
the 'Adjudicating Authority's' role as it had extended the process and considered
'Resolution Plans' post expiry of 330 days without specific direction from the
'Adjudicating Authority'.
16. On behalf of the Appellant/Second Respondent it is brought to the notice of this
'Tribunal' that the 'Committee of Creditors' had acted mainly, in the interest of the 'stake
holders' by striving to revive the 'Corporate Debtor' and maximise its value. With this
aim, the 'Resolution Professional' with the 'Committee of Creditors Approval' had filed
an 'Extension Application' praying for an extension beyond 330 days to have a
successful resolution and prevent liquidation of the Corporate Debtor.
17. The Learned Counsel for the Appellant/Second Respondent points out that because
of the delay in deciding the 'Extension Application' and considering that it was essential

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to keep the 'Corporate Debtor' as a 'going concern' for 'Successful Resolution', the
'Committee of Creditors' together with the 'Resolution Professional' had continued the
'CIRP' after the lapse of 330 days, subject to the Adjudicating Authority's order on the
'Extension Application'. In fact, the 'Committee of Creditors' and the 'Resolution
Professional' had disclosed to all the stake holders (including the First
Respondent/'Prospective Resolution Applicants') that such process post expiry of 330
days was subject to the order of the 'Adjudicating Authority' and indeed unless the
'Extension Application' is approved, all the stakes would not create any rights and
obligations.
1 8 . The Learned Counsel for the Appellant/Second Respondent, for an illustration,
adverts to the Form G (Re-Issue) dated 19.05.2021 which mentioned the following:
"The timelines provided above are subject to receipt of approval from NCLT for
extension of timeline for completion of CIRP beyond 330 days and are tentative
in nature which may undergo change on account of various reasons including
any extension that the CoC may grant in the exercise of its sole discretion".
19. The Learned Counsel for the Appellant/Second Respondent submits that the 'CIRP'
does not 'ipso facto' stood terminated on the expiry of 330 days. In this connection the
Learned Counsel for the Appellant/Second Respondent points out that the 330 days'
period mentioned in Section 12 of the 'I&B' Code is 'not mandatory' and the said term
mandatorily figuring in the 2nd proviso to Section 12(3) of the Code was struck down
by the Hon'ble Supreme Court in the matter of Committee of Creditors of Essar Steel
India Limited vs. Satish Kumar Gupta and Ors. (vide judgment dated 15.11.2019 in Civil
Appeal No. 8766-8767 of 2019).
20. Advancing his argument, the Learned Counsel for the Appellant/Second Respondent
points out that in the decision of Hon'ble Supreme Court in Committee of Creditors of
Essar Steel India Limited case, it is observed and held that though ordinarily, the CIRP
of the Corporate Debtor must be completed within the outer limit of 330 days from the
insolvency commencement date, the period of CIRP can be further extended if (i) only a
short period is left for completion of CIRP (ii) it would be in the interest of all the stake
holders that the Corporate Debtor be put back on its feet instead of being sent into
liquidation (iii) the fault for the time taken in the legal proceedings or a large part
thereof cannot be ascribed to the parties. Further, that in such cases the 'Adjudicating
Authority' would have the discretion to make an allowance and grant a further extension
beyond 330 days as done in the present case, as per order dated 15.07.2021.
21. The Learned Counsel for the Appellant/Second Respondent submits that since the
'Resolution Plans' received namely viz. of the First Respondent/'Prospective Resolution
Applicant' and Sindhu Trade Links Ltd. (STLL) prior to this request was made, were
found unsatisfactory, the 'Committee of Creditors' had approved the decision with
95.71% vote to re-issue the request for submission of 'Resolution Plans' to all the
'Prospective Resolution Applicants'. In fact, the decision to reinvite plans from all
'Prospective Resolution Applicants' had increased the 'competition' and resulted in
almost 60% increase in the value that was offered by the 'Prospective Resolution
Applicants' (including the First Respondent/'Prospective Resolution Applicant').
22. It is the version of the Appellant/Second Respondent that by seeking resubmission
of all the 'Prospective Resolution Applicants', the 'Committee of Creditors' and the
Resolution Professional had fulfilled the requirement of Regulations 36B(7) and ensured
that no preference was given to anyone of the 'Prospective Resolution Applicants' over

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the other. Besides this, a level playing field was created for all the 'Prospective
Resolution Applicants' by adhering to the due process as per the I&B Code and the 'CIRP
Regulations'.
23. The Learned Counsel for the Appellant/Second Respondent contends that the based
on the invitation for 'Expression of Interest' dated 21.01.2020 and 'Expression of
Interest' dated 25.01.2021 the Vedanta had submitted its 'Expression of Interest and
was included in the final list of 'Prospective Resolution Applicants' published each time
that it on 23.03.2020 and on 08.02.2021. Therefore, 'Vedanta' cannot be termed as just
an 'outsider' which is endeavouring to submit its plan, at a later stage thereby delaying
the completion of 'Corporate Insolvency Resolution Process'.
24. The Learned Counsel for the Appellant/Second Respondent submits that the First
Respondent/'Prospective Resolution Applicants' reliance upon the decisions in Pioneer
Rubchem Pvt. Ltd. vs. Vivek Raheja & Anr. and Kalinga Allied Industries Ltd. vs.
Hindustan Coils Ltd. & Anr. to contend that no 'Resolution Plan' submitted beyond the
dead line was to be considered is not tenable because of the fact that in both these
matters, the 'Expression of Interest' were not submitted by the 'Prospective Resolution
Applicants' within the time frame, unlike Vedanta. In fact, in these cases, the Resolution
Applicants had intervened in the 'Corporate Insolvency Resolution Process' for the first
time at a stage where either the 'Resolution Plans' were already in discussion or an
Application for approval was pending before the 'Adjudicating Authority'. As such, it is
the plea of the Appellant that the reliance placed on the aforesaid decisions are
inapplicable, as they are factually different.
25. The Learned Counsel for the Appellant/Second Respondent points out that the First
Respondent/'Prospective Resolution Applicant' had submitted the 'Revised Proposal' at
least three times beyond the dead line. In fact, owing to such revisions, the First
Respondent/'Prospective Resolution Applicant' had improved its initial financial proposal
by more than 60%, which also explains why the First Respondent/'Prospective
Resolution Applicant' sought to interfere with the 'Committee of Creditors' exercise of
commercial wisdom and prevent any further 'value maximisation'.
26. The Learned Counsel for the Appellant/Second Respondent adverts to the fact that
the First Respondent/'Prospective Resolution Applicant' had sought and obtained
extensions for submission of revisions/modifications in its 'Resolution Plan' both earlier
and post expiry of 330 days' period. In fact, on 22.02.2021, an extension for two weeks
i.e. till 08.03.2021 was sought for, while being aware that the 330 period was to end on
09.03.2021. Again, an extension was sought on 18.03.2021, 02.04.2021, 28.04.2021,
10.05.2021, 02.06.2021, 08.06.2021, 18.06.2021 and 25.06.2021, viz; even after filing
of an 'application' on 02.06.2021.
2 7 . Based on the aforesaid extensions, the First Respondent had submitted its
'Revisions'/'Modifications' in its 'Resolution Plans' especially on 15.04.2021,
12.05.2021, 15.05.2021, 11.06.2021, 29.06.2021, 03.07.2021 and 10.07.2021 and
since the First Respondent/'Prospective Resolution Applicant' had reaped the benefit of
extension of timeline for submitting the 'Resolution Plan' itself, it is the contention of
the Appellant that the First Respondent/'Prospective Resolution Applicant' is stopped
from objecting to the 'Committee of Creditors' decisions to provide similar opportunities
to the other 'Prospective Resolution Applicants'.
28. The Learned Counsel for the Appellant/Second Respondent refers to the judgment
of this Tribunal dated 12.08.2021 in the matter of Unicon Buildtech vs. Aishwarya

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Mohan Gahrana RP, Durha Virak Private Limited (vide Comp App (AT) (Ins.) No. 517 of
2021) and submits that the 'Appeal' preferred by the 'Prospective Resolution Applicant'
objecting to the non-grant of time and rejection of its plan by the 'Committee of
Creditors' was rejected.
2 9 . The Learned Counsel for the Appellant/Second Respondent submits that the
impugned order in the instant Appeal was passed in an unreasonable and arbitrary
manner and also is indicative of an inconsistent approach by the very same
'Adjudicating Authority' who had passed an order in Riddhi Siddhi case on 23.09.2021
in I.A. 325 of 2021 in CP(IB)492/07/HDB/2019 wherein the only consideration that
weighed was to make all possible endeavours at resolution and keeping liquidation at
the last resort. In that view of the matter, the 'Committee of Creditors' with the same
object attempted at value maximisation which will be in the interest of the all stake
holders of the Corporate Debtor.
Appellant's Citations
30. The Learned Counsel for the Appellant/Second Respondent refers to the judgment
of this Tribunal in Unicon Buildtech vs. Aishwarya Mohan Gahrana RP, Durha Vitrak
Private Limited (vide Comp App (AT) (Ins) 517 of 2021) wherein at paragraphs 6 and 7
it is observed as under:
6 . "The Appeal itself shows that the Appellant had been participating in the
CIRP and had on earlier occasion also filed revised plan. The CoC in the Minutes
considered e-mail claimed by the Appellant to have been sent on 22nd January,
2021 and having considered e-mail decided to proceeded to consider the
Resolution Plan which had been submitted clause by clause. The CoC in its
wisdom did not find it appropriate to give more time to the Appellant and
discussed the Resolution Plan and rejected the same for reasons recorded.
These are commercial decisions and we cannot hear the Appellant claiming that
he was offering bigger amount and so the CoC should be directed to consider
his plan. In Judgment in the matter of "Arcelormittal India Pvt. Ltd. vs. Satish
Kumar Gupta & Ors." [Civil Appeal No. 9402-9405 etc. of 2018] Judgment of
the Hon'ble Supreme Court dated 4th October, 2018 (MANU/SC/1123/2018),
the Hon'ble Supreme Court in para 79 of the judgment has observed that there
is no vested right or fundamental right in the Resolution Applicant to have its
Resolution Plan approved. In the present matter, the CoC considered and in its
wisdom did not grant further time and rejected the Resolution Plan. As such, we
do not find any reason to interfere in the impugned order only on the basis that
the Appellant had filed an I.A before the Adjudicating Authority and the
Adjudicating Authority without deciding the I.A passed order of liquidation.
7 . In this matter, Section 7 Application was admitted on 8th November, 2019
and the order of liquidation came to be passed on 31st May, 2021...."
31. The Learned Counsel for the Appellant/Second Respondent as regards the plea that
the CIRP can be extended beyond 330 days' period seeks in-aid of the decision of
Hon'ble Supreme Court in The Committee of Creditors of Essar Steel India Ltd. vs.
Satish Kumar Gupta and Ors. (vide judgment dated 15.11.2019 in Civil Appeal No.
8766-8767 of 2019) wherein at paragraph 79 it is observed as under:
79. "In Atma Ram Mittal v. Ishwar Singh Punia MANU/SC/0032/1988 : (1988) 4
SCC 284, this Court applied the maxim to time taken in legal proceedings under
the Haryana Urban (Control of Rent and Eviction) Act, 1973, holding:

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 "8. It is well-settled that no man should suffer because of the fault of
the court or delay in the procedure. Broom has stated the maxim "actus
curiae neminem gravabit" - an act of court shall prejudice no man.
Therefore, having regard to the time normally consumed for
adjudication, the 129 ten years' exemption or holiday from the
application of the Rent Act would become illusory, if the suit has to be
filed within that time and be disposed of finally. It is common
knowledge that unless a suit is instituted soon after the date of letting
it would never be disposed of within ten years and even then within
that time it may not be disposed of. That will make the ten years
holiday from the Rent Act illusory and provide no incentive to the
landlords to build new houses to solve problem of shortages of houses.
The purpose of legislation would thus be defeated. Purposive
interpretation in a social amelioration legislation is an imperative
irrespective of anything else." Likewise, in Sarah Mathew v. Institute of
Cardio Vascular Diseases, MANU/SC/1210/2013 : (2014) 2 SCC 62, this Court
held that for the purpose of computing limitation under Section 468 of the Code
of Criminal Procedure, 1973 the relevant date is the date of filing of the
complaint and not the date on which the Magistrate takes cognizance, applying
the aforesaid maxim as follows:
"39. As we have already noted in reaching this conclusion, light can be
drawn from legal maxims. Legal maxims are referred to in Bharat Kale
[Bharat Damodar Kale v. State of A.P., MANU/SC/0794/2003 : (2003) 8
SCC 559 : 2004 SCC (Cri) 39], Japani Sahoo [Japani Sahoo v. Chandra
Sekhar Mohanty, MANU/SC/3080/2007 : (2007) 7 SCC 394 : (2007) 3
SCC (Cri) 388] and Vanka Radhamanohari [Vanka Radhamanohari v.
Vanka Venkata Reddy, MANU/SC/0510/1993 : (1993) 3 SCC 4 : 1993
SCC (Cri) 571]. The object of the criminal law is to punish perpetrators
of crime. This is in tune with the well-known legal maxim nullum
tempus aut locus occurrit regi, which means that a crime never dies. At
the same time, it is also the policy of law to assist the vigilant and not
the sleepy. This is expressed in the Latin maxim vigilantibus et non
dormientibus, jura subveniunt. Chapter XXXVI CrPC which provides
limitation period for certain types of offences for which lesser sentence
is provided draws support from this maxim. But, even certain offences
such as Section 384 or 465 IPC, which have lesser punishment may
have serious social consequences. The provision is, therefore, made for
condonation of delay. Treating date of filing of complaint or date of
initiation of proceedings as the relevant date for computing limitation
under Section 468 of the Code is supported by the legal maxim actus
curiae neminem gravabit which means that the act of court shall
prejudice no man. It bears repetition to state that the court's inaction in
taking cognizance i.e. court's inaction in applying mind to the
suspected offence should not be allowed to cause prejudice to a
diligent complainant. Chapter XXXVI thus presents the interplay of
these three legal maxims. The provisions of this Chapter, however, are
not interpreted solely on the basis of these maxims. They only serve as
guiding principles."
Both these judgments have been followed in Neeraj Kumar Sainy v. State of
Uttar Pradesh MANU/SC/0283/2017 : (2017) 14 SCC 136 at paragraphs 29 and

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 32. Given the fact that the time taken in legal proceedings cannot possibly harm
a litigant if the Tribunal itself cannot take up the litigant's case within the
requisite period for no fault of the litigant, a provision which mandatorily
requires the CIRP to end by a certain date - without any exception thereto -
may well be an excessive interference with a litigant's fundamental right to
non-arbitrary treatment under Article 14 and an excessive, arbitrary and
therefore unreasonable restriction on a litigant's fundamental right to carry on
business under Article 19(1)(g) of the Constitution of India. This being the
case, we would ordinarily have struck down the provision in its entirety.
However, that would then throw the baby out with the bath water, inasmuch as
the time taken in legal proceedings is certainly an important factor which
causes delay, and which has made previous statutory experiments fail as we
have seen from Madras Petrochem (supra). Thus, while leaving the provision
otherwise intact, we strike down the word "mandatorily" as being manifestly
arbitrary under Article 14 of the Constitution of India and as being an excessive
and unreasonable restriction on the litigant's right to carry on business under
Article 19(1)(g) of the Constitution. The effect of this declaration is that
ordinarily the time taken in relation to the corporate resolution process of the
corporate debtor must be completed within the outer limit of 330 days from the
insolvency commencement date, including extensions and the time taken in
legal proceedings. However, on the facts of a given case, if it can be shown to
the Adjudicating Authority and/or Appellate Tribunal under the Code that only a
short period is left for completion of the insolvency resolution process beyond
330 days, and that it would be in the interest of all stakeholders that the
corporate debtor be put back on its feet instead of being sent into liquidation
and that the time taken in legal proceedings is largely due to factors owing to
which the fault cannot be ascribed to the litigants before the Adjudicating
Authority and/or Appellate Tribunal, the delay or a large part thereof being
attributable to the tardy process of the Adjudicating Authority and/or the
Appellate Tribunal itself, it may be open in such cases for the Adjudicating
Authority and/or Appellate Tribunal to extend time beyond 330 days. Likewise,
even under the newly added proviso to Section 12, if by reason of all the
aforesaid factors the grace period of 90 days from the date of commencement
of the Amending Act of 2019 is exceeded, there again a discretion can be
exercised by the Adjudicating Authority and/or Appellate Tribunal to further
extend time keeping the aforesaid parameters in mind. It is only in such
exceptional cases that time can be extended, the general rule being that 330
days is the outer limit within which resolution of the stressed assets of the
corporate debtor must take place beyond which the corporate debtor is to be
driven into liquidation."
3 2 . In regard to the contention of the Appellant/Second Respondent that the
'Prospective Resolution Applicants' have no fundamental or vested rights vis-Ã -vis the
CIRP, the Learned Counsel for the Appellant cites the judgment of the Hon'ble Supreme
Court in Arcelor Mittal India Private Limited vs. Satish Kumar Gupta and Ors. (vide
judgment dated 04.10.2018 in Civil Appeal No. 9402-9405 of 2018) reported in
MANU/SC/1123/2018 wherein at paragraphs at 76, 79 to 81
76. "Given the timeline referred to above, and given the fact that a resolution
applicant has no vested right that his resolution plan be considered, it is clear
that no challenge can be preferred to the Adjudicating Authority at this stage. A
writ petition under Article 226 filed before a High Court would also be turned
down on the ground that no right, much less a fundamental right, is affected at

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this stage. This is also made clear by the first proviso to Section 30(4),
whereby a Resolution Professional may only invite fresh resolution plans if no
other resolution plan has passed muster.
....
7 9 . Take the next stage under Section 30. A Resolution Professional has
presented a resolution plan to the Committee of Creditors for its approval, but
the Committee of Creditors does not approve such plan after considering its
feasibility and viability, as the requisite vote of not less than 66% of the voting
share of the financial creditors is not obtained. As has been mentioned
hereinabove, the first proviso to Section 30(4) furnishes the answer, which is
that all that can happen at this stage is to require the Resolution Professional to
invite a fresh resolution plan within the time limits specified where no other
resolution plan is available with him. It is clear that at this stage again no
application before the Adjudicating Authority could be entertained as there is no
vested right or fundamental right in the resolution applicant to have its
resolution plan approved, and as no adjudication has yet taken place.
8 0 . It is the Committee of Creditors which will approve or disapprove a
resolution plan, given the statutory parameters of Section 30. Under Regulation
39 of the CIRP Regulations, sub clause (3) thereof provides:-
"(3) The committee shall evaluate the resolution plans received under
sub-regulation (1) strictly as per the evaluation matrix to identify the
best resolution plan and may approve it with such modifications as it
deems fit: Provided that the committee shall record the reasons for
approving or rejecting a resolution plan."
This regulation shows that the disapproval of the Committee of Creditors on the
ground that the resolution plan violates the provisions of any law, including the
ground that a resolution plan is ineligible under Section 29A, is not final. The
Adjudicating Authority, acting quasi-judicially, can determine whether the
resolution plan is violative of the provisions of any law, including Section 29A
of the Code, after hearing arguments from the resolution applicant as well as
the Committee of Creditors, after which an appeal can be preferred from the
decision of the Adjudicating Authority to the Appellate Authority under Section
61.
8 1 . If, on the other hand, a resolution plan has been approved by the
Committee of Creditors, and has passed muster before the Adjudicating
Authority, this determination can be challenged before the Appellate Authority
under Section 61, and may further be challenged before the Supreme Court
under Section 62, if there is a question of law arising out of such order, within
the time specified in Section 62. Section 64 also makes it clear that the
timelines that are to be adhered to by the NCLT and NCLAT are of great
importance, and that reasons must be recorded by either the NCLT or NCLAT if
the matter is not disposed of within the time limit specified. Section 60(5),
when it speaks of the NCLT having jurisdiction to entertain or dispose of any
application or proceeding by or against the corporate debtor or corporate
person, does not invest the NCLT with the jurisdiction to interfere at an
applicant's behest at a stage before the quasi-judicial determination made by
the Adjudicating Authority. The non-obstante clause in Section 60(5) is

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 designed for a different purpose: to ensure that the NCLT alone has jurisdiction
when it comes to applications and proceedings by or against a corporate debtor
covered by the Code, making it clear that no other forum has jurisdiction to
entertain or dispose of such applications or proceedings."
3 3 . The Learned Counsel for the Appellant/Second Respondent in regard to the
submission that 'Commercial wisdom' is paramount and not to be interfered with relies
on the judgment dated 05.02.2019 of the Hon'ble Supreme Court in K. Shashidhar vs.
Indian Overseas Bank reported in MANU/SC/0189/2019 : (2019) 12 SCC at page 150
wherein at paragraph 52 it is observed as under:
52. "As aforesaid, upon receipt of a "rejected" resolution plan the adjudicating
authority (NCLT) is not expected to do anything more; but is obligated to
initiate liquidation process under Section 33(1) of the I&B Code. The legislature
has not endowed the adjudicating authority (NCLT) with the jurisdiction or
authority to analyse or evaluate the commercial decision of CoC much less to
enquire into the justness of the rejection of the resolution plan by the
dissenting financial creditors. From the legislative history and the background
in which the I&B Code has been enacted, it is noticed that a completely new
approach has been adopted for speeding up the recovery of the debt due from
the defaulting companies. In the new approach, there is a calm period followed
by a swift resolution process to be completed within 270 days (outer limit)
failing which, initiation of liquidation process has been made inevitable and
mandatory. In the earlier regime, the corporate debtor could indefinitely
continue to enjoy the protection given under Section 22 of the Sick Industrial
Companies Act, 1985 or under other such enactments which has now been
forsaken. Besides, the commercial wisdom of CoC has been given paramount
status without any judicial intervention, for ensuring completion of the stated
processes within the timelines prescribed by the I&B Code. There is an intrinsic
assumption that financial creditors are fully informed about the viability of the
corporate debtor and feasibility of the proposed resolution plan. They act on the
basis of thorough examination of the proposed resolution plan and assessment
made by their team of experts. The opinion on the subject-matter expressed by
them after due deliberations in CoC meetings through voting, as per voting
shares, is a collective business decision. The legislature, consciously, has not
provided any ground to challenge the "commercial wisdom" of the individual
financial creditors or their collective decision before the adjudicating authority.
That is made non-justiciable."
34. The Learned Counsel for the Appellant/Second Respondent points out the decision
of the Hon'ble Supreme Court in Kalpraj Dharamshi & Anr. Vs. Kotak Investment
Advisors Limited and Anr., wherein at paragraph 155 to 157 it is observed as under:
1 5 5 . "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.
1 5 6 . It would thus be clear, that the legislative scheme, as interpreted by
various decisions of this Court, is unambiguous. The commercial wisdom of
CoC is not to be interfered with, excepting the limited scope as provided under

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 Sections 30 and 31 of the I&B Code.
157. No doubt, it is sought to be urged, that since there has been a material
irregularity in exercise of the powers by RP, NCLAT was justified in view of the
provisions of clause (ii) of sub-section (3) of Section 61 of the I&B Code to
interfere with the exercise of power by RP. However, it could be seen, that all
actions of RP have the seal of approval of CoC. No doubt, it was possible for RP
to have issued another Form 'G', in the event he found, that the proposals
received by it prior to the date specified in last Form 'G' could not be accepted.
However, it has been the consistent stand of RP as well as CoC, that all actions
of RP, including acceptance of resolution plans of Kalpraj after the due date,
albeit before the expiry of timeline specified by the I&B Code for completion of
the process, have been consciously approved by CoC. It is to be noted, that the
decision of CoC is taken by a thumping majority of 84.36%. The only creditor
voted in favour of KIAL is Kotak Bank, which is a holding company of KIAL,
having voting rights of 0.97%. We are of the considered view, that in view of
the paramount importance given to the decision of CoC, which is to be taken on
the basis of 'commercial wisdom', NCLAT was not correct in law in interfering
with the commercial decision taken by CoC by a thumping majority of 84.36%."
35. The Learned Counsel for the Appellant/Second Respondent refers to the order of the
'Adjudicating Authority' (National Company Law Tribunal, Hyderabad Bench) dated
23.09.2021 in I.A. No. 325 of 2021 in CP (IB) No. 492/07/HDB/2019 in M/s. Riddhi
Siddhi Gluco Biols Limited, Ahmedabad vs. Mr. Sumit Binani, Resolution Professional
and Anr. wherein at paragraphs 6 to 9 it is observed as under:
6 . "It appears to us that CIRP period is already over but since one plan is
pending and since there is likelihood of Resolution of Insolvency of Corporate
Debtor, we did not pass order of Liquidation.
7 . To maintain parity of process, we direct the RP and CoC to allow the
Applicant to submit the Plan on the basis of amendment of Form - G on which
the Group Companies of M/s. Jindal Power Ltd. were allowed to submit the
plan.
8 . The Applicant to submit the Resolution Plan within two weeks from today
without fail. We further direct the RP and CoC to consider both Resolution Plans
within two weeks thereafter.
9. We further direct the RP to complete the CIRP process within 30 days without
fail because CIRP period is already over (excluding the lockdown period and
period under which CIRP was stayed)."
First Respondent's Submissions (in Both Appeals)
36. The Learned Counsel for the First Respondent contends that the 'impugned order' of
the Adjudicating Authority had considered the relevant facts, timelines and the breach of
such timelines committed by the Resolution Professional and the 'Committee of
Creditors'. At this juncture, the Learned Counsel for the First Respondent points out that
the impugned order apart from taking into account all the citations referred to by the
parties and especially the ratio enunciated in the case of 'Committee of Creditors' of
'Essar Steel of India' V. 'Satish Kumar Gupta', MANU/SC/1577/2019 : 2020 Vol. 8, SCC
531 which provides that while the period of 330 days is not mandatory, the same can
be violated only in certain specific circumstances and not for considering the new

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Resolution Plans submitted after the expiry of prescribed time as well as after the lapse
of 330 days.
37. The Learned Counsel for the First Respondent points out that the impugned order
was passed based on due consideration of Regulations 36A and 36B of the Corporate
Persons Regulation, 2016. Furthermore, it is represented on behalf of the First
Respondent that the last Form G (third one) published by the 'Resolution Professional'
was dated 12.05.2021 and this would exhibit that the 'Resolution Professional' had
acted arbitrarily, dehors the provisions of the Code and under the false assumption that
'Form G' could be issued even beyond the 330 days' period and without securing the
approval in this regard, from the 'Adjudicating Authority'.
3 8 . The Learned Counsel for the First Respondent points out that the 'Adjudicating
Authority' had rightly allowed the I.A. 244/2021 and passed the 'impugned order' by not
permitting the 'Resolution Professional and the 'Committee of Creditors' to extend the
time frame beyond 330 days. In this connection, the Learned Counsel for the First
Respondent places reliance on the judgement of this Tribunal in 'Pioneer Rubchem Pvt.
Ltd.' Vs. 'Vivek Raheja Resolution Professional, Trading Engineers (International)
Limited' and Anr. vide Comp. App. (AT)(Ins.) 706/2020 wherein at para 4 and 5 it is
observed as under:-
(3) "Section 12 of the IBC, 2016 provides for a time line of 180 days for
completion of CIRP and even if he considers the extended period, it is another
90 days and hence, within 270 days the CIRP should be completed.
(4) Although it is directory that CIRP can be completed upto a period of 330
days or so which is largely to consider the time frame of judicial process.
Hence, practically all attempt be made to complete the CIRP within 270 days.
(5) In the present case already two Resolution Plans have been received and
hence the aspect of competitive bidding is complied with, if we permit the
present Appellant, it will open a floodgate for such applications & will derail
CIRP & purpose of IBC, not only in this case but in other cases also. The Appeal
is devoid of any merit."
39. According to the Learned Counsel for the First Respondent the 330 days' period
may be extended in exceptional circumstances and only when 'a short period is left for
the completion of the Insolvency Resolution Process'. Moreover, the principle of
'Maximisation of Asset Value' is to be read in conjunction with the directive of 'time
bound process', as made mention of in the 'I&B' Code and also reiterated in various
Hon'ble Supreme Court decisions.
4 0 . The Learned Counsel for the First Respondent contends that the 'Committee of
Creditors' which is the 'creation of a statute' is required to act within the parameters of
the 'I&B' Code, 2016 and it cannot be breached under the garb of 'commercial wisdom'.
41. The Learned Counsel for the First Respondent adverts to the fact that the Court has
allowed extension of time beyond 330 days' period to dispose of the pending Resolution
Plans, where there is a real possibility of Resolution over liquidation. In this regard, the
Learned Counsel for the First Respondent relies on the judgment of this Tribunal in
Comp App (AT) (Ins) No. 05 of 2020 dated 10.02.2020 Ashish Chaturvedi Vs. Inox
Leisure Ltd. & Ors. wherein at paragraph 17 it is observed as under:
17. "It is to be noted that 'Speedy' is the gist for an effective, efficacious

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 functioning of the Bankruptcy Code. As per Section 12(3) of the Code, the time
period of 'CIRP is not to be extended more than once. It is to be borne in mind
by the concerned authorities to adhere to the model 16 timeframe envisaged in
Regulation 40(A) of IBBI (CIRP for corporate person) Regulations 2016 as far
as possible. In an extraordinary circumstance(s), the 'Adjudicating Authority'
can extend the 'Corporate Insolvency Resolution Process' beyond the time limit
adumbrated in Section 12(3) of the Code. The extension of time can be only on
an application made by the Insolvency Resolution Professional on the basis of
'Committee of Creditors' as mentioned in sub-Section 2 and 3 of Section 12 of
the IBC, 2016."
42. The Learned Counsel for the First Respondent submits that the First Respondent's
challenge was not founded on its rights to be approved but against an illegal procedure
adopted by the 'Resolution Professional' and the 'Committee of Creditors' in violation of
the provisions of the Code, whereby the CIRP was derailed completely, i.e. by extending
the last date of submission of 'Resolution Plans' and keeping the 'CIRP' process open
ended instead of closing the same and by illegally allowing Vedanta's 'Resolution Plan'
in the 'zone of consideration' well after the completion of 330 days on an illegal premise
that 'Vedanta' had sought an extension of time to file its 'Resolution Plan'.
4 3 . Yet another contention of the Learned Counsel for the First Respondent in the
instant case neither there was a challenge made to the rejection or non-approval of the
'Resolution Plan' by the First Respondent, nor the First Respondent sought any relief
before the 'Adjudicating Authority' requiring consideration and approval of its
'Resolution Plan' exclusively. As a matter of fact, the First Respondent only had prayed
for directions to be issued to the 'Resolution Professional' for not receiving and
considering the 'Resolution Plan' submitted after the dead line of 08.03.2021 mentioned
in 'Form G' dated 25.01.2021 and placed only those before the 'Committee of Creditors'
which were submitted before the lapse of 330 days, which got expired on 08.03.2021.
44. According to the Learned Counsel for the First Respondent/'Resolution Applicant',
the 'Resolution Professional' and the 'Committee of Creditors' continue to deliberately
misconstrue the distinction between a 'Resolution Plan' and a 'Revised Offer' and the
time lines qua the same.
45. The Learned Counsel for the First Respondent points out that the term 'Resolution
Plan' is defined u/s. 5(26) of the 'I&B' Code to mean a 'Plan' proposed by the Resolution
Applicant for 'Insolvency Resolution' of the 'Corporate Debtor' as a going concern in
accordance with part II. However, there is no definition for a Revised offer and/or
Revised financial proposal and in this regard, the Learned Counsel for the First
Respondent cites the judgement of this Tribunal in 'Binani Industries Ltd.' V. 'Bank of
Baroda and Anr.' wherein it is observed and held as under:-
"34. Section 25(2)(h) provides invitation of prospective lenders, investors and
any other persons to put forward a 'Resolution Plan'. Submission of revised
offer is in continuation of the Resolution Plan already submitted and accepted
by the Resolution Professional. It is not in dispute that after invitation was
called for, the Ultra Tech Cement Ltd. submitted the revised Resolution Plan on
12th February, 2018 i.e. well within the time. It is not the case of the
Committee of Creditors that the Plan of the Ultra Tech Cement Ltd. was in
violation of Section 30(2) of the I&B Code. The Resolution Plan having
submitted by Ultra Tech Cement Ltd. within time on 12th February, 2018 it was
open to the Committee of Creditors to notice the revised offer given by Ultra

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 Tech Ltd. on 08th March, 2018. The Committee of Creditors has taken note of
revised offer given by the 'Rajputana Properties Private Limited' on 07th March,
2018 but refused to notice the revised offer submitted by Ultra Tech Cement
Limited on 08th March, 2018 i.e. much prior to the decision of the Committee
of Creditors (14th March, 2018).
3 9 . On a careful reading of the aforesaid clauses, it is clear that all the
Resolution Plan' which meet the requirements of Section 30(2) of the 'I&B Code'
are required to be placed before the 'Committee of Creditors' and the Resolution
Professional' can review the Resolution Plan' and the 'Committee of Creditors' is
entitled to negotiate and modify with consent of the Resolution Applicant. To
apply this clause there is no time limit prescribed except that the Resolution
Process should be completed within the stipulated period of 180 days or
maximum 270 days."
46. We appreciate the aforesaid submissions made by Mr. Gopal Subramanian,
Ld. Senior Counsel that the Committee of Creditors, Resolution Professional and
all Resolution Applicants are bound by the process documents prepared under
the mandate of Section 25(2)(h) of the I&B Code but non-adherence to process
stipulated in terms of Section 25(2)(h) of the 'I&B' Code and to stipulation
made in the process documents will render such decision illegal."
46. The Learned Counsel for the First Respondent brings to the notice of this Tribunal
that the 'Resolution Professional' and the 'Committee of Creditors' had commenced the
extensive discussions and negotiations with the First Respondent on its 'Resolution Plan'
before accepting the bid of Vedanta. In fact, emails dated 16.07.2021 and 21.07.2021
were exchanged between the First Respondent and 'Resolution Professional' in regard to
the 'Addenda'/revised financial proposals. Apart from this, the 'Resolution Plan' of the
First Respondent, on 09.03.2021 was already placed before the 'Committee of
Creditors', based on which negotiations took place and a revised and modified
'Resolution Plan' was submitted on 26.06.2021. Therefore, it is projected on the side of
the First Respondent that there is no possibility to re-examine the Resolution Plan of the
First Respondent, for placing it before the 'Committee of Creditors'.
47. The Learned Counsel for the First Respondent points out that consequent to the
negotiations and discussions held with the 'Committee of Creditors', the 'Committee of
Creditors' from time to time had asked for clarifications and modifications to the 'Plan'
had also asked for the 'Upward Revision of the Plan size' and these were complied with
by the First Respondent, which does not fell within the purview of a fresh 'Resolution
Plan'. As such, it is the plea of the First Respondent that the secrecy of the First
Respondent bid was completely compromised and that the 'Resolution Professional' and
the 'Committee of Creditors' had unduly favoured 'Vedanta' which was granted with an
opportunity to file a 'Resolution Plan', after coming to know of the contents of the bids
of the 'First Respondent' and 'STLL'.
4 8 . The Learned Counsel for the First Respondent refers to the judgement of this
Tribunal in 'Kalinga Allied Industries Ltd. Vs. Hindustan Coils Limited (vide Comp. App.
(AT)(Ins.) No. 518 of 2020 wherein it is observed as under:-
"15. There is no provision in the Code or regulation which provides that while
exercising the power under Section 31 of the IBC, the Adjudicating authority
can direct the CoC to consider the resolution plan of such person who has not
been part of CIRP. Otherwise also if such procedure adopted, then the CIRP will

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 be frustrated. Once the resolution plan has been opened and fundamentals and
financials of the plan and offer made therein were disclosed to all the
participants including RP. Then anyone can enhance its offer before the
Adjudicating Authority in the guise of maximisation of realization. Therefore, no
further fresh bid or offer would have accepted or considered...
1 6 . This Appellate Tribunal in the case of Chhatisgarh Distilleries Ltd. Vs.
Dushyant Dave and Ors. Company Appeal (AT)(Ins.) No. 461 of 2019 in the
light of the pronouncement of Hon'ble Supreme Court in the case of Committee
of Creditors Essar Steel India Ltd. Vs. Satish Gupta & Ors. held that:
"In the light of the above pronouncement of Hon'ble Supreme Court we
have examined the issues raised in these appeals. Admittedly, the A-1
filed its Resolution Plan before the Adjudicating Authority on
13.02.2019 whereas, the last date for submission of Resolution Plan
before RP was 15.10.2018. Resolution Plan of Successful Resolution
Applicant i.e. Dera Finvest Pvt. Ltd. (R2) was approved by 98.72% of
the Committee of Creditors in e.voting conducted on 1.11.2018 and on
2.11.2018. When the Resolution Plan is filed before the Adjudicating
Authority than the Authority has to satisfy that the Resolution Plan
approved by the Committee of Creditors fulfils the requirements as
specified in sub-section 2 of Section 30. However, the Adjudicating
Authority cannot direct the CoC to consider the second Resolution Plan
submitted before the Authority although the second Resolution
Applicant is ready to invest more amount in comparison to the first
Resolution Applicant. Ld. Adjudicating Authority has rightly held that
the Adjudicating Authority cannot suo moto direct the CoC to consider
new Resolution Plan and reconsider already approved Resolution Plan.
The Hon'ble Supreme Court in the above referred judgement held that
u/s. 30(2) of I&B Code, decision of Committee of Creditor is purely
commercial and cannot be adjudicated by the Authority. Thus, we are
of the view that the Adjudicating Authority is well within its jurisdiction
while rejecting the application of A-1."
17. With the aforesaid, we are of the considered view that the Adjudicating
Authority has erroneously entertain the application and Resolution Plan of the
Respondent No. 1 and directed the RP to put up the same before CoC for
consideration."
4 9 . The Learned Counsel for the First Respondent submits that the 'Resolution
Professional' as well as the 'Committee of Creditors' till date, have not complied with
the impugned order and the deliberate delay, on their part, had led to the 'value
destruction' in contra distinction to 'maximisation', because of the fact that the only real
asset of the Corporate Debtor i.e. the power purchase agreement with PTC for supply of
power to Bangladesh appears to be in default, considering the fact that PTC through
letter dated 04.08.2021 had served the Resolution Professional with a notice of Intent to
terminate the said 'PPA'.
First Respondent's Citations
50. The Learned Counsel for the First Respondent relies on the decision of the Hon'ble
Supreme Court in Kalpraj Dharamshi & Anr. Vs. Kotak Investment Advisors Limited and
Anr. wherein at paragraph 143, 145, 156, 157 it is observed and held as under:-

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143. "This Court has held, that it is not open to the Adjudicating Authority or
Appellate Authority to reckon any other factor other than specified in Sections
30(2) or 61(3) of the I&B Code. It has further been held, that the commercial
wisdom of CoC has been given paramount status without any judicial
intervention for ensuring completion of the stated processes within the
timelines prescribed by the I&B Code. This Court thus, in unequivocal terms,
held, that there is an intrinsic assumption, that financial creditors are fully
informed about the viability of the corporate debtor and feasibility of the
proposed resolution plan. They act on the basis of thorough examination of the
proposed resolution plan and assessment made by their team of experts. It has
been held, that the opinion expressed by CoC after due deliberations in the
meetings through voting, as per voting shares, is a collective business decision.
It has been held, that the legislature has consciously not provided any ground
to challenge the "commercial wisdom" of the individual financial creditors or
their collective decision before the Adjudicating Authority and that the decision
of CoC's 'commercial wisdom' is made non-justiciable.
145. This Court held, that what is left to the majority decision of CoC is the
"feasibility and viability" of a resolution plan, which is required to take into
account all aspects of the plan, including the manner of distribution of funds
among the various classes of creditors. It has further been held, that CoC is
entitled to suggest a modification to the prospective resolution applicant, so
that carrying on the business of the Corporate Debtor does not become
impossible, which suggestion may, in turn, be accepted by the resolution
applicant with a consequent modification as to distribution of funds, etc. It has
been held, that what is important is, the commercial wisdom of the majority of
creditors, which is to determine, through negotiation with the prospective
resolution applicant, as to how and in what manner the corporate resolution
process is to take place.
1 5 6 . It would thus be clear, that the legislative scheme, as interpreted by
various decisions of this Court, is unambiguous. The commercial wisdom of
CoC is not to be interfered with, excepting the limited scope as provided under
Sections 30 and 31 of the I&B Code.
157. No doubt, it is sought to be urged, that since there has been a material
irregularity in exercise of the powers by RP, NCLAT was justified in view of the
provisions of clause (ii) of sub-section (3) of Section 61 of the I&B Code to
interfere with the exercise of power by RP. However, it could be seen, that all
actions of RP have the seal of approval of CoC. No doubt, it was possible for RP
to have issued another Form 'G', in the event he found, that the proposals
received by it prior to the date specified in last Form 'G' could not be accepted.
However, it has been the consistent stand of RP as well as CoC, that all actions
of RP, including acceptance of resolution plans of Kalpraj after the due date,
albeit before the expiry of timeline specified by the I&B Code for completion of
the process, have been consciously approved by CoC. It is to be noted, that the
decision of CoC is taken by a thumping majority of 84.36%. The only creditor
voted in favour of KIAL is Kotak Bank, which is a holding company of KIAL,
having voting rights of 0.97%. We are of the considered view, that in view of
the paramount importance given to the decision of CoC, which is to be taken on
the basis of 'commercial wisdom', NCLAT was not correct in law in interfering
with the commercial decision taken by CoC by a thumping majority of 84.36%."

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5 1 . The Learned Counsel for the First Respondent relies on the judgment of this
Tribunal (Dated 04.02.2019) in Tata Steel Ltd. vs. Liberty House Group Pte. Ltd. & Ors.,
Comp App (AT) (Ins.) 198 of 2018 wherein at paragraph 32 and 39 it is observed as
under:
3 2 . "It is true that the 'Committee of Creditors' will have to ensure a time
bound process, to better preserve the economic value of the asset.
Simultaneously, it is duty of the 'Committee of Creditors' to ensure that the
'Resolution Plan' is viable, feasible and should maximize the assets of the
'Corporate Debtor'.
3 9 . Similar provisions were noticed by this Appellate Tribunal in "Binani
Industries Limited" (Supra), and held that the 'Committee of Creditors' in its
sole discretion can ask the 'Resolution Professional' to negotiate better terms
with the 'Compliant Resolution Applicant(s)'. However, such negotiation to be
made and completed within the timeframe i.e. within 180 days' subject to
extension if granted by the Adjudicating Authority which should not be
extended beyond 270 days."
52. The Learned Counsel for the First Respondent cites the decision of Hon'ble Supreme
Court in The Committee of Creditors of Essar Steel India Ltd. vs. Satish Kumar Gupta
and Ors. reported in MANU/SC/1577/2019 : (2020) 8 SCC at page 531, wherein at
paragraph 127 it is observed as under:
127. "Both these judgments in Atma Ram Mittal [Atma Ram Mittal v. Ishwar
Singh Punia, MANU/SC/0032/1988 : (1988) 4 SCC 284] and Sarah Mathew
[Sarah Mathew v. Institute of Cardio Vascular Diseases, MANU/SC/1210/2013 :
(2014) 2 SCC 62 : (2014) 1 SCC (Cri) 721] have been followed in Neeraj
Kumar Sainy v. State of U.P. [Neeraj Kumar Sainy v. State of U.P.,
MANU/SC/0283/2017 : (2017) 14 SCC 136 : 8 SCEC 454], SCC paras 29 and
32. Given the fact that the time taken in legal proceedings cannot possibly harm
a litigant if the Tribunal itself cannot take up the litigant's case within the
requisite period for no fault of the litigant, a provision which mandatorily
requires the CIRP to end by a certain date - without any exception thereto -
may well be an excessive interference with a litigant's fundamental right to
non-arbitrary treatment under Article 14 and an excessive, arbitrary and
therefore unreasonable restriction on a litigant's fundamental right to carry on
business under Article 19(1)(g) of the Constitution of India. This being the
case, we would ordinarily have struck down the provision in its entirety.
However, that would then throw the baby out with the bath water, inasmuch as
the time taken in legal proceedings is certainly an important factor which
causes delay, and which has made previous statutory experiments fail as we
have seen from Madras Petrochem [Madras Petrochem Ltd. v. BIFR,
MANU/SC/0088/2016 : (2016) 4 SCC 1 : (2016) 2 SCC (Civ) 478]. Thus, while
leaving the provision otherwise intact, we strike down the word "mandatorily"
as being manifestly arbitrary under Article 14 of the Constitution of India and as
being an excessive and unreasonable restriction on the litigant's right to carry
on business under Article 19(1)(g) of the Constitution. The effect of this
declaration is that ordinarily the time taken in relation to the corporate
resolution process of the corporate debtor must be completed within the outer
limit of 330 days from the insolvency commencement date, including
extensions and the time taken in legal proceedings. However, on the facts of a
given case, if it can be shown to the Adjudicating Authority and/or Appellate

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 Tribunal under the Code that only a short period is left for completion of the
insolvency resolution process beyond 330 days, and that it would be in the
interest of all stakeholders that the corporate debtor be put back on its feet
instead of being sent into liquidation and that the time taken in legal
proceedings is largely due to factors owing to which the fault cannot be
ascribed to the litigants before the Adjudicating Authority and/or Appellate
Tribunal, the delay or a large part thereof being attributable to the tardy
process of the Adjudicating Authority and/or the Appellate Tribunal itself, it
may be open in such cases for the Adjudicating Authority and/or Appellate
Tribunal to extend time beyond 330 days. Likewise, even under the newly
added proviso to Section 12, if by reason of all the aforesaid factors the grace
period of 90 days from the date of commencement of the Amending Act of 2019
is exceeded, there again a discretion can be exercised by the Adjudicating
Authority and/or Appellate Tribunal to further extend time keeping the aforesaid
parameters in mind. It is only in such exceptional cases that time can be
extended, the general rule being that 330 days is the outer limit within which
resolution of the stressed assets of the corporate debtor must take place
beyond which the corporate debtor is to be driven into liquidation."
53. The Learned Counsel for the First Respondent, in regard to the contention of the
Appellant that the 'Prospective Resolution Applicants' have no fundamental or vested
rights vis-Ã -vis the CIRP, the Learned Counsel for the Appellant cites the judgment of
the Hon'ble Supreme Court in Arcelor Mittal India Private Limited vs. Satish Kumar
Gupta and Ors. (vide judgment dated 04.10.2018 in Civil Appeal No. 9402-9405 of
2018) wherein at paragraphs at 76, 79 to 81
76. "Given the timeline referred to above, and given the fact that a resolution
applicant has no vested right that his resolution plan be considered, it is clear
that no challenge can be preferred to the Adjudicating Authority at this stage. A
writ petition under Article 226 filed before a High Court would also be turned
down on the ground that no right, much less a fundamental right, is affected at
this stage. This is also made clear by the first proviso to Section 30(4),
whereby a Resolution Professional may only invite fresh resolution plans if no
other resolution plan has passed muster.
....
7 9 . Take the next stage under Section 30. A Resolution Professional has
presented a resolution plan to the Committee of Creditors for its approval, but
the Committee of Creditors does not approve such plan after considering its
feasibility and viability, as the requisite vote of not less than 66% of the voting
share of the financial creditors is not obtained. As has been mentioned
hereinabove, the first proviso to Section 30(4) furnishes the answer, which is
that all that can happen at this stage is to require the Resolution Professional to
invite a fresh resolution plan within the time limits specified where no other
resolution plan is available with him. It is clear that at this stage again no
application before the Adjudicating Authority could be entertained as there is no
vested right or fundamental right in the resolution applicant to have its
resolution plan approved, and as no adjudication has yet taken place.
8 1 . If, on the other hand, a resolution plan has been approved by the
Committee of Creditors, and has passed muster before the Adjudicating
Authority, this determination can be challenged before the Appellate Authority

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 under Section 61, and may further be challenged before the Supreme Court
under Section 62, if there is a question of law arising out of such order, within
the time specified in Section 62. Section 64 also makes it clear that the
timelines that are to be adhered to by the NCLT and NCLAT are of great
importance, and that reasons must be recorded by either the NCLT or NCLAT if
the matter is not disposed of within the time limit specified. Section 60(5),
when it speaks of the NCLT having jurisdiction to entertain or dispose of any
application or proceeding by or against the corporate debtor or corporate
person, does not invest the NCLT with the jurisdiction to interfere at an
applicant's behest at a stage before the quasi-judicial determination made by
the Adjudicating Authority. The non-obstante clause in Section 60(5) is
designed for a different purpose: to ensure that the NCLT alone has jurisdiction
when it comes to applications and proceedings by or against a corporate debtor
covered by the Code, making it clear that no other forum has jurisdiction to
entertain or dispose of such applications or proceedings."
54. The Learned Counsel for the First Respondent refers to the judgment of the Hon'ble
Supreme Court dated 13.09.2021 in Ebix Singapore Pvt. Ltd. vs. Committee of Creditors
of Educomp Solutions Ltd. & Anr. (Civil Appeal No. 3224 of 2020) wherein at paragraph
125, 143, 146, 147, 156, 159 and 205 it is observed as under:
125 "The absence of any specific provision in the IBC or the regulations
referring to a CoC-approved Resolution Plan as a contract and the lack of clarity
in the BLRC report regarding the nature of such a Resolution Plan, constrains us
from arriving at the conclusion that CoC-approved Resolution Plans will be
governed by the Contract Act and common law principles governing contracts,
save and except for the specific prohibitions and deeming fictions under the
IBC. Regulation 39(3) of CIRP regulations, as it stood before the IBBI (CIRP)
(Fourth Amendment) Regulations 2020 and applicable to the three appellants
before us, enabled a framework where a draft Resolution Plan would involve
several rounds of negotiations and revisions between the Resolution Applicant
and the CoC, before it is approved by the latter and submitted to the
Adjudicating Authority ((3) The committee shall evaluate the resolution plans
received under sub-regulation (1) strictly as per the evaluation matrix to
identify the best resolution plan and may approve it with such modifications as
it deems fit: Provided that the committee shall record its deliberations on the
feasibility and viability of the resolution plans). However, this statutorily-
enabled room for commercial negotiation is not enough to over-power the other
elements of regulation that detract from the view that CoC-approved Resolution
Plans are contracts. CoC-approved Resolution Plans, before the approval of the
Adjudicating Authority under Section 31, are a function and product of the IBC's
mechanisms. Their validity, nature, legal force and content is regulated by the
procedure laid down under the IBC, and not the Contract Act. The voting by the
CoC also occurs only after the RP has verified the contents of the Resolution
Plan and confirmed that it meets the conditions of the IBC and the regulations
therein. The amended Regulation 39(3) ("39....(3) The committee shall- (a)
evaluate the resolution plans received under sub-regulation (2) as per
evaluation matrix; (b) record its deliberations on the feasibility and viability of
each resolution plan; and (c) vote on all such resolution plans simultaneously.
(3A) Where only one resolution plan is put to vote, it shall be considered
approved if it receives requisite votes. (3B) Where two or more resolution plans
are put to vote simultaneously, the resolution plan, which receives the highest
votes, but not less than requisite votes, shall be considered as approved:

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Provided that where two or more resolution plans receive equal votes, but not
less than requisite votes, the committee shall approve any one of them, as per
the tie-breaker formula announced before voting: Provided further that where
none of the resolution plans receives requisite votes, the committee shall again
vote on the resolution plan that received the highest votes, subject to the
timelines under the Code..........") further regulates the conduct of the CoC on
voting on Resolution Plans and has introduced the requirement of simultaneous
voting. The IBBI's Discussion Paper issued on 27 August 2021 has invited
comments on regulating the process on revisions that can be made to
resolution plans submitted to the CoC (available at https://www.
ibbi.gov.in/uploads/whatsnew/fbe59358a8c440d001f3b950be4a1c67.pdfaccessed
on 5 September 2021). These developments bolster the conclusion that the
mechanism prior to submission of a CoC approved resolution plan is subject to
continuous procedural scrutiny by the IBC and cannot be considered as a simple
contractual negotiation between two parties. Section J below details how a
common law remedies of withdrawal or modification on account of frustration
or force majeure are not applicable to CoC approved Resolution Plans owing to
the nature of the IBC. Similarly, the whole host of remedies such as liquidated
and unliquidated damages, restitution, novation and frustration, unless
specifically provided by the IBC, are not available to a successful Resolution
Applicant whose Plan has been approved by the CoC and is awaiting the
approval of the Adjudicating Authority. The Insolvency Law Committee Report
of February 2020 has recommended the CIRP process to mandate Resolution
Plans to provide for the apportionment of the profit or loss accrued by the
Corporate Debtor during the CIRP (1 Pages 55-56, Report of the Insolvency Law
Committee (February 2020), Ministry of Corporate Affairs, available at
https://www.mca.gov.in/inistry/pdf/ICLReport_05032020.pdf accessed on 20
August 2021). These reports are periodically commissioned by the parliament
to review the functioning of the Code and suggest amendments. However, if the
intention was to view a CoC approved Resolution Plan as a contract, the
principles of unjust enrichment would have been sufficient to address the issue
and an amendment may not be considered necessary. A Resolution Applicant,
as a third party partaking in the insolvency regime, seeks to acquire the
business of the Corporate Debtor without the entirety of its debts, statutory
liabilities and avoiding certain transactions with third parties. These benefits are
a function of the coercive mechanisms of the IBC which enable a third party to
acquire the assets of a Corporate Debtor without its liabilities, for a negotiated
amount of the debt that is owed by the Corporate Debtor. Typically, resolution
amounts envisage payment of a fraction of debt that is owed to the creditors
and the business is acquired as a going concern with its employees. The
Resolution Plan is drafted in a way that it is implementable in the future and
brings about a quietus to the CIRP. Enabling Resolution Applicants to seek
remedies that are not specified by the IBC, by seeking recourse to the Contract
Act would be antithetical to the IBC's insolvency regime. The elements of
contractual interpretation can be relied upon to construe the language of the
terms of the Resolution Plan, in the event of a dispute, but not to re-fashion
and distort the mechanism of the IBC altogether. This Court in Laxmi Pat
Surana v. Union Bank of India has held that the IBC is a self-contained Code.
Thus, importing principles of any other law or a statute like the Contract Act
into the IBC regime would introduce unnecessary complexity into the working
of the IBC and may lead to protracted litigation on considerations that are alien
to the IBC. To give an example, the CoC can forfeit the PBG furnished by the

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successful Resolution Applicant under certain circumstances in terms of the
RFRP and Resolution Plan including, inter alia, on the ground that the
Resolution Applicant has failed to implement the resolution or has contributed
to its failure. Regulation 36B (4A) of CIRP regulations provides for the
furnishing of such performance security once the plan is approved by creditors.
The Regulations do not provide that the performance security has to be a
reasonable estimate of loss as is expected of penalty clauses under contract
law, rather the explanation provides that the performance security should be of
"such nature, value, duration and source, as may be specified in the request for
resolution plans with the approval of the committee, having regard to the
nature of resolution plan and business of the corporate debtor". Further, in the
event that the CoC enters into a settlement with the Corporate Debtor and
withdraws from the CIRP under Section 12A, Regulation 30A provides for only
payment of insolvency costs and not compensation or damages to Resolution
Applicant for investing time and money in the process. The parties may resort
to invoking principles of frustration or force majeure to evade implementation
of the Resolution Plan leading to unnecessary litigation. This Court in Amtek
Auto (supra), had curbed a similar attempt by a successful Resolution Applicant
who had relied on a force majeure clause in its Resolution Plan to seek a
direction compelling the CoC to negotiate a modification to its Resolution Plan.
The Court held that there was no scope for negotiations between the parties
once the Resolution Plan has been approved by the CoC. Thus, contractual
principles and common law remedies, which do not find a tether in the wording
or the intent of the IBC, cannot be imported in the intervening period between
the acceptance of the CoC and the approval by the Adjudicating Authority.
Principles of contractual construction and interpretation may serve as
interpretive aids, in the event of ambiguity over the terms of a Resolution Plan.
However, remedies that are specific to the Contract Act cannot be applied, de
hors the overriding principles of the IBC.
143. The statutory framework governing the CIRP seeks to create a mechanism
for resolving insolvency in an efficient, comprehensive and timely manner. The
IBC provides a detailed linear process for undertaking CIRP of the Corporate
Debtor to minimize any delays, uncertainty in procedure and disputes. The roles
and responsibilities of the important actors in the CIRP are clearly defined
under the IBC and its regulations. In Innoventive Industries Ltd. v. ICICI Bank
MANU/SC/1063/2017 : (2018) 1 SCC 407) a three judge Bench of this Court
observed that "one of the important objectives of the Code is to bring the
insolvency law in India under a single unified umbrella with the object of
speeding up of the insolvency process". Recently, in Gujarat Urja (para 71)
(supra) a three judge Bench of this Court observed that a "delay in completion
of the insolvency proceedings would diminish the value of the debtor's assets
and hamper the prospects of a successful reorganization or liquidation. For the
success of an insolvency regime, it is necessary that insolvency proceedings are
dealt with in a timely, effective and efficient manner". The stipulation of
timelines and a detailed procedure under the IBC ensures a timely completion
of CIRP and introduces transparency, certainty and predictability in the
insolvency resolution process. The UNCITRAL Guide also states that the
insolvency law of a jurisdiction should be transparent and predictable. It notes
the value of such predictability in the following terms (Page 13, UNCITRAL
Guide, supra 56):
"11. An insolvency law should be transparent and predictable. This will

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 enable potential lenders and creditors to understand how insolvency
proceedings operate and to assess the risk associated with their
position as a creditor in the event of insolvency. This will promote
stability in commercial relations and foster lending and investment at
lower risk premiums. Transparency and predictability will also enable
creditors to clarify priorities, prevent disputes by providing a backdrop
against which relative rights and risks can be assessed and help define
the limits of any discretion. Unpredictable application of the insolvency
law has the potential to undermine not only the confidence of all
participants in insolvency proceedings, but also their willingness to
make credit and other investment decisions prior to insolvency. As far
as possible, an insolvency law should clearly indicate all provisions of
other laws that may affect the conduct of the insolvency proceedings
(e.g. labour law; commercial and contract law; tax law; laws affecting
foreign exchange, netting and set-off and debt for equity swaps; and
even family and matrimonial law)."
This Court should proceed with caution in introducing any element in the
insolvency process that may lead to unpredictability, delay and complexity not
contemplated by the legislature. With this birds'-eye view of the framework of
insolvency through the CIRP, we proceed to answer the question of law raised
in this judgement - whether a Resolution Applicant is entitled to withdraw or
modify its Resolution Plan, once it has been submitted by the Resolution
Professional to the Adjudicating Authority and before it is approved by the latter
under Section 31(1) of the IBC.
146. Judicial restraint must not only be exercised while adjudicating upon the
constitutionality of the statute relating to economic policy but also in matters of
interpretation of economic statutes, where the interpretative maneuvers of the
Court have an effect of transgressing into the law-making power of the
legislature and disturbing the delicate balance of separation of powers between
the legislature and the judiciary. Judicial restraint must be exercised in such
cases as a matter of prudence, since the court neither has the necessary
expertise nor the power to hold consultations with stakeholders or experts to
decide the direction of economic policy. A court may be inept in laying down a
detailed procedure for exercise of the power of withdrawal or modification by a
successful Resolution Applicant without impacting the other procedural steps
and the timelines under the IBC which are sacrosanct. Thus, judicial restraint
must be exercised while intervening in a law governing substantive outcomes
through procedure, such as the IBC. In this case, if Resolution Applicants are
permitted to seek modifications after subsequent negotiations or a withdrawal
after a submission of a Resolution Plan to the Adjudicating Authority as a
matter of law, it would dictate the commercial wisdom and bargaining
strategies of all prospective Resolution Applicants who are seeking to
participate in the process and the successful Resolution Applicants who may
wish to negotiate a better deal, owing to myriad factors that are peculiar to
their own case. The broader legitimacy of this course of action can be decided
by the legislature alone, since any other course of action would result in a
flurry of litigation which would cause the delay that the IBC seeks to disavow.
1 4 7 . The IBC is silent on whether a successful Resolution Applicant can
withdraw its Resolution Plan. However, the statutory framework laid down
under the IBC and the CIRP Regulations provide a step-by-step procedure which

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is to be followed from the initiation of CIRP to the approval by the Adjudicating
Authority. Regulation 40A describes a model-timeline for the CIRP that accounts
for every eventuality that may arise between the commencement of the CIRP
and approval of the Resolution Plan by the Adjudicating Authority, including the
different stages for pressing a withdrawal of the CIRP under Section 12A. Even
a modification to the RFRP is envisaged by the CIRP Rules and is subject to a
timeline. The absence of any exit routes being stipulated under the statute for a
successful Resolution Applicant is indicative of the IBC's proscription of any
attempts at withdrawal at its behest. The rule of casus omissus is an
established rule of interpretation, which provides that an omission in a statute
cannot be supplied by judicial construction. Justice GP Singh in his
authoritative treatise, Principles of Statutory Interpretation (7GP Singh,
Principles of Statutory Interpretation (1st edn., Lexis Nexis 2015)), defines the
rule of casus omissus as:
"It is an application of the same principle that a matter which should
have been, but has not been provided for in a statute cannot be
supplied by courts, as to do so will be legislation and not construction.
But there is no presumption that a casus omissus exists and language
permitting the court should avoid creating a casus omissus where there
is none."
(emphasis supplied)
The treatise further discusses that a departure from this rule is only allowed in
cases where words have been accidently omitted or the omission has an effect
of making any part of the statute meaningless. Further, only such words can be
supplied to the statute which would have certainly been inserted by the
Parliament, had the omission come to its notice. The relevant paragraph is
extracted below:
"As already noticed it is not allowable to read words in a statute which
are not there, but "where the alternative lies between either supplying
by implication words which appear to have been accidentally omitted,
or adopting a construction which deprives certain existing words of all
meaning, it is permissible to supply the words". A departure from the
rule of literal construction may be legitimate so as to avoid any part of
the statute becoming meaningless. Words may also be read to give
effect to the intention of the Legislature which is apparent from the Act
read as a whole. Application of the mischief rule or purposive
construction may also enable reading of words by implication when
there is no doubt about the purpose which the Parliament intended to
achieve. But before any words are read to repair an omission in the
Act, it should be possible to state with certainty that these or similar
words would have been inserted by the draftsman and approved by
Parliament had their attention been drawn to the omission before the
Bill passed into law."
In the wake of the COVID-19 pandemic, several Resolution Plans remained
pending before Adjudicating Authorities due to the lockdown and significant
barriers to securing a hearing. An Ordinance was swiftly promulgated on 5 June
2020 which imposed a temporary suspension of initiation of CIRP under
Sections 7, 9 and 10 of the IBC for defaults arising for six months from 25
March 2020 (extendable by one year). This was followed by an amendment

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through the IBC (Second Amendment) Act 2020 on 23 September 2020 which
provided for a carve-out for the purpose of defaults arising during the
suspended period. The delays on account of the lockdown were also mitigated
by the IBBI (Insolvency Resolution Process for Corporate Persons) (Third
Amendment) Regulations 2020, which inserted Regulation 40C on 20 April
2020, with effect from 29 March 2020, and excluded such delays for the
purposes of adherence to the otherwise strict timeline. Recently, the IBC
(Amendment) Ordinance 2021 was promulgated with effect from 04 April 2021
providing certain directions to preserve businesses of MSMEs and a fast-track
insolvency process. There has been a clamor on behalf of successful Resolution
Applicants who no longer wish to abide by the terms of their submitted
Resolution Plans that are pending approval under Section 31, on account of the
economic slowdown that impacted every business in the country. However, no
legislative relief for enabling withdrawals or renegotiations has been provided,
in the last eighteen months. In the absence of any provision under the IBC
allowing for withdrawal of the Resolution Plan by a successful Resolution
Applicant, vesting the Resolution Applicant with such a relief through a process
of judicial interpretation would be impermissible. Such a judicial exercise would
bring in the evils which the IBC sought to obviate through the back-door.
156. Regulation 40A envisages a model-time line for the CIRP. Any deviation
from this timeline needs to be specifically explained by the RP in Clause 10 of
Form H. Regulation 40B imposes a time-limit on the RP for filing the requisite
forms at different stages of the CIRP, including forms seeking extensions on
account of delays at any stage. The failure to fill these forms within the
stipulated deadline results in disciplinary action against the RP by the IBBI.
Further, as discussed in Section I of the judgement, various mandatory
timelines have been imposed for undertaking specific actions under the CIRP. If
the legislature intended to allow withdrawals or subsequent negotiations by
successful Resolution Applicants, it would have prescribed specific timelines for
the exercise of such an option. The recognition of a power of withdrawal or
modification after submission of a CoC-approved Resolution Plan, by judicial
interpretation, will have the effect of disturbing the statutory timelines and
delaying the CIRP, leading to a depletion in the value of the assets of a
Corporate Debtor in the event of a potential liquidation. Hence, it is best left to
the wisdom of the legislature, based on the experiences gained from the
working of the enactment, to decide whether the option of modification or
withdrawal at the behest of the Resolution Applicant should be permitted after
submission to the Adjudicating Authority; if so, the conditions and the
safeguards subject in which it can be allowed and the statutory procedure to be
adopted for its exercise.
159. After the amendment to Section 12 in 2019 which mandate a 330 days
outer-limit for conclusion of the CIRP (which can be breached only under
exceptional circumstances as held in Essar Steel (supra)), it would be
antithetical to the purpose of the IBC to allow the Adjudicating Authority to use
its plenary powers under Section 60(5)(c) to potentially extend these timelines
to enable the CoC to either issue a fresh RFRP if the Resolution Plan is
withdrawn by a successful Resolution Applicant or direct further negotiations
with the Resolution Applicant who is seeking a modification of the plan, whose
failure could result in withdrawal as well. The likely consequence of a
withdrawal by a successful Resolution Applicant after going through the stages
of the CIRP for nearly 180 days (provided all statutory timelines have been

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 strictly followed) would inevitably be a delayed liquidation after the value of the
assets has further depreciated. In the event of intervening delays on account of
litigation or otherwise, the delay would be even more severe. If a CoC, could be
compelled by the Adjudicating Authority to negotiate with the successful
Resolution Applicant, it would have to resign itself to a commercial bargain at a
much lower value. If Parliament intended to permit such
withdrawals/modifications sought by successful Resolution Applicants as being
beneficial to the economic policy, which it has sought to pursue while enacting
the IBC, it would have prescribed timelines for setting the clock-back or
directing immediate liquidation if the withdrawals occur after a certain period.
For instance, under Regulation 36B (5) any modification to the RFRP or the
evaluation matrix is deemed as a fresh issue of the RFRP and the timeline for
submission of Resolution Plan starts afresh. Parliament has not legislated to
provide for the eventuality argued by the appellants.
205. It would also be sobering for us to recognize that whilst this Court has
declared the position in law to not enable a withdrawal or modification to a
successful Resolution Applicant after its submission to the Adjudicating
Authority, long delays in approving the Resolution Plan by the Adjudicating
Authority affect the subsequent implementation of the plan. These delays, if
systemic and frequent, will have an undeniable impact on the commercial
assessment that the parties undertake during the course of the negotiation.
xxx xxx xxx
....The NCLT and the NCLAT should endeavor, on a best effort basis, to strictly
adhere to the timelines stipulated under the IBC and clear pending resolution
plans forthwith. Judicial delay was one of the major reasons for the failure of
the insolvency regime that was in effect prior to the IBC. We cannot let the
present insolvency regime meet the same fate."
5 5 . The Learned Counsel for the First Respondent refers to the judgement of this
Tribunal dated 28.06.2021 in Comp App (AT)(INS) No. 233 and 333 of 2021 reported in
MANU/NL/0240/2021 Between Dwarkadhish Sakhar Karkhana Ltd. and Ors Vs Pankaj
Joshi and Ors wherein (for Issue No. iv) whether to allow DSKL after due date to file
the EOI is a commercial decision? at paragraph 28 to 41 it is observed as under:-
"28. As per sub-section 30 of the IBC, when the CoC approved a Resolution
Plan by a vote of not less than 66% of voting share of the Financial Creditors
after considering its feasibility and viability, such decision of CoC is a
commercial decision. Thus, decision taken by the CoC in the 0th CoC meeting to
allow DSKL after due date to file EOI is not a commercial decision.
29. Now we have considered whether the CoC can review its own decision at
any point of time in contravention of Regulation 36-A)6) of the Regulations
2016.
30. Ld. Se. Counsel for DSKL submitted that Regulation 36-A cannot override
the mandate of Code i.e. maximization of value and commercial wisdom of CoC
and for this contention, cited the Judgement of Hon'ble Supreme Court in the
Case of Brilliant alloys Vs S. Rajagopal in which Hon'ble Supreme Court while
dealing with Regulation 30-A has explicitly held that seemingly mandatory
language of Regulation has to be read along with provision of the Code. Thus,
Hon'ble Supreme Court held that Regulation 30A would be directory.

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Additionally, Regulation 36 is not mandatory in nature. The word 'shall' has to
be read as 'may' since no consequence of non-compliance are provided.
31. We have considered the argument in the case of Brilliant Alloys, Corporate
Debtor as well as Financial Creditor and Operational Creditor were agreed to
withdrawal of the Application. However, in view of Regulation 30A, withdrawal
was not permitted. In that context, Hon'ble Supreme Court held that this
Regulation has to be read along with the main provision of Section 12A which
contains no such stipulation. Therefore, it held that this stipulation can only be
construed as directory depending on the facts of each case. It is not ruled, that
Regulation 36-A is not in consonance with any of the provision of the IBC or
Regulation 36-A is not mandatory in nature. Thus, this Judgement also does not
support the case of DSKL. The second limb of argument, that the word 'shall'
has to be read as 'may' since no consequence of noncompliance are provided, is
not acceptable as Regulation 36-A (6) itself provides that EOI received after the
time specified shall be rejected.
3 2 . Learned Senior Counsel for DSKL and Ld. Counsel for Mr. Pankaj Joshi
heavily placed reliance on Para 156 of the Judgement of Hon'ble Supreme Court
in the case of Kalpraj (supra) which reads as under:-
"156. No doubt, it is sought to be urgent, that since there has been a
material irregularity in exercise of the powers by RP, NCLAT was
justified in view of the provisions of clause (ii) of sub-section (3) of
Section 61 of the I&B Code to interfere with the exercise of power by
RP. However, it could be seen, that all actions of RP have the seal of
approval of CoC. No doubt, it was possible for RP to have issued
another Form ''G', in the event he found, that the proposals received by
it prior to the date specified in last Form ''G' could not be accepted.
However, it has been the consistent stand of RP as well as CoC, that all
actions of RP, including acceptance of resolution plans of Kalpraj after
the due date, albeit before the expiry of timeline specified by the I&B
Code for completion of the process, have been consciously approved by
CoC. It is to be noted, that the decision of CoC is taken by a thumping
majority of 8436%. The only creditor voted in favour of KIAL is Kotak
Bank, which is a holding company of KIAL, having voting rights of
0.97%. We are of the considered view, that in view of the paramount
importance given to the decision of CoC, which is to be taken on the
basis of 'commercial wisdom', NCLAT was not correct in law in
interfering with the commercial decision taken by CoC by a thumping
majority of 84.36%.''
33. In the case of Kalpraj (Supra), Hon'ble Supreme Court examining an appeal
against the order u/s. 61(3) of IBC, whereby this Appellate Tribunal allowed the
Appeal on the ground of material irregularity where we are examining this
appeal u/s. 61(1) of IBC. The scope of Appeal u/s. 61(3) is limited to the
grounds as specified in sub-section 3. However, there is no such limit for the
Appeal u/s. 61(1) of IBC. In the case of Kalpraj, Hon'ble Supreme Court held
that all the actions of RP, including acceptance of Resolution Plan of Kalpraj
after due date, albeit before the expiry of time line specified by the IBC for
completion of the process, have been consciously approved by the COC. In the
present case, as we have already discussed, in the 7th CoC meeting with the
consultation of Mr. Pankaj Joshi, the request for submitting EOI after due date

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was rejected. After two months, when Mr. Pankaj Joshi appointed RP, he in
contravention of Regulation 36A in his own accord overturned the decision of
07th COC and permitted DSKL to submit EOI. However, DSKL has not requested
the COC to re-visit their earlier decision. Mr. Pankaj Joshi by suppressing
material facts and misguiding the CoC procured the desired decision and
inducted DSKL in the list of prospective Resolution applicant. In the case of
Kalpraj, RP's actions are bonafide, impartial and fair and, therefore, the CoC has
approved all his actions including the acceptance of Resolution Plans of Kalpraj
after due date. Thus, the facts of the present case are quite distinguishable
from the case of Kalpraj. Therefore, we are of the considered view that the ratio
of the judgement of Kalpraj's case does not support the case of DSKL.
34. With the aforesaid discussion we are of the considered view that, to allow
DSKL after due date at the instance of Pankaj Joshi to file EOI is not a
commercial decision.
35. The COC, while reviewing its earlier decision, has not assigned any good
reason for revisiting their earlier decision. It seems that the COC have taken the
decision in the influence and misguidance of Pankaj Joshi.
36. The 07th COC meeting was convened on 03.04.2020 and after two months,
the 09th CoC meeting was convened on 13.06.2020 and when the CoC reviewed
its earlier Resolution these same challenges were there too, there is no change
in circumstances which compel them to review/revisit their earlier decision.
They have not assigned any good reason for revisiting their earlier decision.
The CoC in the shelter of maximisation of value of asset, cannot be permitted to
take any decision at any point of time in the name of commercial wisdom. In
the present case the Resolution Plan of DSKL is yet to be examined with the
comparison of other PRAs. Therefore, at this stage, how one can say that the
decision taken in the favour of DSKL was for maximization of value of asset.
37. Now, we have considered whether the decision taken by the CoC in 09th
CoC meeting was an independent decision or was it procured by Pankaj Joshi
by suppressing material facts.
38. At the time of 9th CoC meeting, Pankaj Joshi has suppressed the fact that
he was served with the Application of DSKL and that they are going to file
application before the Adjudicating Authority against the decision of 7th CoC. If
such fact was disclosed by Pankaj Joshi at the time of convening 9th CoC then
they might be precluded from revisiting their earlier decision on the ground that
the Adjudicating Authority is seized of the matter. On the other hand, being RP,
he should have advised the CoC to wait till the decision of the Adjudicating
Authority.
39. Pankaj Joshi has suppressed the fact that he himself has overturned the
decision of 7th CoC meeting and permitted DSKL to submit its EOI. Pankaj Joshi
also misguided the CoC that he is not required to take express permission from
the CoC to issue a request for Resolution Plan to an eligible Prospective
Resolution applicant. This is not the position in this case the request for
submission of EOI after due date was rejected by the CoC then there is no
question to issue a request for resolution plan to DSKL.
40. Pankaj Joshi in 09th CoC meeting canvassed the case of DSKL and when
one of CoC Members proposed to publish fresh Form 'G' then he suggested that

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 this is impracticable and delayed the CIRP.
41. With the above discussion, we are of the view that the decision taken in
09th Meeting of the CoC was not transparent, fair and was under the influence
of Pankaj Joshi.''
56. The Learned Counsel for the First Respondent cites the judgement of this Tribunal
dated 20.12.2019 in Amit Gupta V. Yogesh Gupta (Resolution Professional) in Comp
App (AT)(Ins) No. 903/2019 wherein at paragraph 16 to 20 it is observed as under:-
"16. Under Section 25(2)(h), the Resolution Professional is required to invite
prospective Resolution Applicants who fulfill such criteria as may be laid down
by him with the approval of Committee of Creditors having regard to the
complexity and scale of operations of the business of the Corporate Debtor and
such other conditions as may be specified by the Board, to submit a Resolution
Plan or plans. This was done by the Resolution Professional as can be seen
from Annexure A-3. The invitation was issued with last date and time fixed as
12 o'clock noon of 18th August, 2018. Regulation 36-A of "The Insolvency and
Bankruptcy Board of India (Insolvency Resolution Process for Corporate
Persons) Regulations, 2016" (Regulation-in short) deals with invitation for
expression of interest. Clause -6 of Regulation 36-A provides that "The
expression of interest received after the time specified in the invitation under
Clause (b) of the sub-regulation (3) shall be rejected." Although the Resolution
Professional in his Affidavit before Adjudicating Authority mentioned the time of
receipt of e-mail dated 18th August, 2018 (Annexure A-9) from the Appellant at
11:50:58 hours, the document filed by the Appellant himself shows that it was
received/sent after 12 o'clock. In terms of Clause -6 of Regulation 36-A, even if
such e-mail was to be categorized as an expression of interest, it would require
to be rejected. Apart from this, if Sub-Clause -7 of Regulation 36-A is seen, it
requires that the expression of interest shall be unconditional and should be
accompanied by undertakings, records, information as specified in Sub-Clause
'a' to 'g'. One of the requirements for the prospective Resolution Applicant is
giving undertaking that it meets the criteria specified by the Committee under
Clause 'h' Sub-Section (2) of Section 25. We have already reproduced the e-
mail dated 18th August, 2018. It can hardly be said to be complying with any of
the requirements as provided under IBC. No doubt the RP sent the Appellant e-
mail (Annexure A-10) that the CoC had discussed and found the e-mail not to
be in conformity with the requirements asked for and also the provisions of
IBC. We have gone through the expression of interest (Annexure A-3), it is
apparent that the requirements had not been complied with. Such e-mail like
(Annexure A-9) cannot at all qualify the Appellant as prospective Resolution
Applicant, even if it was to be said that the Corporate Debtor is MSME.
17. At the time of arguments, the learned counsel for Respondent pointed out
that the Appellant had himself moved Section 10 Application so as to invoke
provisions of IBC for the Corporate Debtor and neither at that time nor at any
time including when e-mail dated 18th August, 2018 was sent at any point of
time, the claim was made that the Corporate Debtor is an MSME. It appears
from record that such claim was made directly before the Adjudicating Authority
by filing CA 259/2018. This too after more than 1½ month after the last
correspondence from Respondent which was Annexure A-12 dated 31st August,
2018.

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 18. Under Sub-Clause 'c' of Clause - 7 of Regulation 36-A, there is provision
that the prospective Resolution Applicant should give undertaking that it does
not suffer from any ineligibility under Section 29-A to the extent applicable. It
is apparent from record that the Appellant gave no such undertaking and clearly
the provisions of IBC were not complied and moving the Adjudicating authority
after a delay would not help. When the Resolution Professional receives the
expression of interest, (if there is no dispute that the Corporate Debtor is
MSME, it would be different, but otherwise), he is not expected to sit down and
decide applying facts to provisions of Section - 7 of MSME Act and applying
them to the Corporate Debtor on the basis of various parameters as provided to
see whether or not the Corporate Debtor will fit into the requirement of one or
the other class of enterprise or not under MSME. There is no reason why,
looking to the nature of proceedings under the BC the prospective Resolution
applicant who claims eligibility on the basis that the Corporate Debtor is MSME,
should not provide necessary Memorandum Certificate. The Resolution
Professional cannot be going into investigations and enquiries and findings
whether or not a Corporate Debtor falls under the classifications of MSME and
Adjudicating Authority is also not expected to make such investigations,
enquiries on such evidence or give findings on such issues, which may not be
accurate without assistance of an opposite side or Government Counsel
bringing forth which or the other Notification etc. applies. Under Sections of
MSME Act, even if getting Memorandum Certificated for a given enterprise may
be optional, if advantage is to be taken of MSME Act, the Applicant must take
pains to get the Memorandum Certificate to seek benefits under IBC.
19. The Learned Counsel for the Appellant relied on the Judgement in the case
of "Saravana Global Holdings Ltd. & Anr Vs. Bafna Pharmaceuticals Ltd. & Ors.''
of this Tribunal in Company Appeal (AT) (Ins) No. 203 of 2019 dated 4th July,
2019 to submit that in that matter benefit was given to the Corporate Debtor
when it was claimed that it was MSME. If para - 8 and para -19 of that
Judgement are seen, the Resolution Professional in that matter had confirmed
that the Resolution Applicant therein was an MSME and was eligible under
Section 29-A of IBC. That being not the case in present matter and there being
disputes of facts being raised, the Appellant cannot take benefit of the said
Judgement.
20. When this Appeal was filed, and the appellant claimed that the Corporate
Debtor was MSME by Interim Order dated 3rd September, 2019. This Tribunal
had directed that during the pendency of the Appeal, the Order will not come in
the way of Appellant submitting a Resolution Plan and that uninfluenced by the
Order passed by the Adjudicating Authority and in accordance with Sub-Section
4 of Section 30, Committee of Creditors may consider the same which shall be
subject to the decision of this appeal. As we find that the Impugned Order
where it finds that the Appellant has failed to show that it is MSME, for reasons
recorded above although it is stated that the Appellant has submitted a
proposed Resolution Plan, copy of which has been filed which is stated to have
been sent only on 14.11.2019 (as endorsed on the copy), we do not propose to
go into such plan which again has been put up only after 2 months of the
September Order. The Counsel for Respondent has further submitted that the
statutory period has also expired and COC has already moved the Adjudicating
Authority for passing orders of liquidation in view of pendency of this Appeal."
5 7 . The Learned Counsel for the First Respondent points out the Judgement of this

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Tribunal dated 29.05.2020 in First Global Finance Pvt. Ltd. V. IVRCL Ltd. and others
(vide Comp App (AT)(INS) No. 918-919 of 2019 dated 29.05.2020) wherein at
paragraph 23 and 24 it is observed and held as under:-
"23. State Bank of India has submitted on behalf of the Committee of Creditors
through its affidavit dated 04.12.2019 that the Resolution Plan submitted by the
Reconstituted Consortium was not commercially acceptable to the CoC and in
spite of repeated request by the CoC to the "Reconstituted Consortium" to
improve the commercial and technical aspect of the Resolution Plan,
Reconstituted Consortium did not do so. The decision of the COC is well
informed and well thought of the business and commercial decision taken
considering all the options available to it in the interest of all the stakeholders
and also keeping in view the spirit of the I&B Code, 2016. He has also
confirmed that the majority decision of the CoC has been taken on prudent
business and commercial proposition and accordingly, the Adjudicating
Authority has passed the requisite order. He has cited Hon'ble Supreme Court
Judgement in the case of K. Sashidhar Vs. Indian Overseas Bank and Ors.
reported in MANU/SC/0189/2019 and Committee of Creditors of Essar Steel
India Ltd. Vs. Satish Kumar Gupta & Ors. Civil Appeal No. 8766-67/2019, to
support the commercial wisdom of CoC. Finally, he has also submitted that the
present appeal is misconceived in law and facts and the Application needs to be
dismissed.
2 4 . We have gone through the submission of the Appellant, SBI and
Respondent it is observed that the Appellant has strictly not complied with the
terms and conditions of Expression of Interest (EOI) dated 14.08.2018 and
non-submission of EMD along with submission of Resolution Plan dated
4.10.2018 as required by the Bid Process Memorandum. They have also
deviated on other parameters. And hence CoC after deliberation has rejected the
plan and accordingly the Resolution Professional has communicated to the
Resolution Applicant. Since, liquidation proceedings as a going concern is
already on from July 2019 and there is always scope for Resolution Applicants
to opt for Arrangements under Section 230-232 of the Companies Act, 2013, if
they are eligible in accordance with provisions of Insolvency and Bankruptcy
Code, 2016 along with relevant Rules. Hence there is no merit in the case to
consider the relief of setting aside the impugned order of NCLT, Hyderabad
Bench. We uphold the order of NCLT Hyderabad Bench and with the passing of
this order, the order dated 06.03.2013 stands vacated. No order as to costs.
Pleas of Second Respondent's (Resolution Professional) (In Comp App (AT) (CH) (Ins.)
No. 166 of 2021) and Appellant (In Comp App (AT) (CH) (Ins.) No. 174 of 2021)
58. The Learned Counsel for the Second Respondent/Resolution Professional submits
that the Appellant/Committee of Creditors of Meenakshi Energy Ltd. Through State Bank
of India and the Second Respondent/Resolution Professional had only considered the
"Vedanta Resolution Plan" in accordance with the Code, with a view to achieve value
maximization under the Code and further that no 'determination' vis-Ã -vis its approval
was taken in regard to the same.
5 9 . The Learned Counsel for the Second Respondent contends that the right to
challenge 'is available to a Resolution Applicant' only on the approval of a 'Resolution
Plan' by the 'Adjudicating Authority' and not at any stage earlier. Also it is projected on
the side of the Second Respondent that there is no vested right to a 'Resolution

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Applicant' to have its 'Resolution Plan' be considered by the Committee of Creditors.
Therefore, no challenge can be made before the 'Adjudicating Authority' by a 'Resolution
Applicants' till a 'Resolution Plan' is approved by the said Authority.
6 0 . Expatiating his submission, the Learned Counsel for the Second Respondent
proceeds to point out that the decision of the Appellant and the Second Respondent to
extend the timeframe beyond 08.03.2021 was at all times be subject to the outcome of
33-390 days 'Extension Application' and the same was recorded by the
Appellant/Committee of Creditors of Meenakshi Energy Ltd. in the Minutes of 20th
Committee of Creditor's meeting that took place on 20.04.2021 and all other
correspondence exchanged with the Prospective Resolution Applicants (including the
first Respondent). Therefore, it is projected on the side of the Second Respondent that
at no stage of the 'CIRP' the Appellant and the Second Respondent attempted to
overstep their authority under the Code, as wrongly observed in the impugned order.
61. The Learned Counsel for the Second Respondent comes out with an argument that
the 'Adjudicating Authority' had committed an error in deciding the impugned
Application prior to the adjudication of the 33-390 days Extension Application and the
approval of the Resolution Plan by the said Authority, as the same was premature and
therefore, not maintainable. In this connection, the Learned Counsel for the Second
Respondent submits that the I&B Code, 2016 does not prohibit the 'Committee of
Creditors' from excepting a 'Resolution Plan' from a Prospective Resolution Applicant
who had submitted the 'Expression of Interest' within the time prescribed by the
'Committee of Creditors'.
6 2 . According to the Learned Counsel for the Second Respondent, the Adjudicating
Authority had not appreciated the 'Fact on Record' that Vedanta Ltd. was taking part as
a 'Prospective Resolution Applicant' in the Corporate Insolvency Resolution Process of
the Corporate Debtor from the year 2020. That apart, Vedanta Ltd. had submitted its
'Expression of Interest' on 27.02.2020 and was also included in the final list of
'Prospective Resolution Applicant' issued by the Respondent on 08.03.2020 and later on
03.02.2021 as per 'Regulation 36A(12) r/w Regulation 36B(7) of the CIRP Regulations'.
In fact, Vedanta Ltd. had an access to the 'Data Room' together with the other
shortlisted 'Prospective Resolution Applicants' forming part of the final list of the
'Prospective Resolution Applicants'. As such, Vedanta Ltd. was not a 'New Resolution
Applicant' in the 'Corporate Insolvency Resolution Process' of the 'Corporate Debtor'.
63. The Learned Counsel for the Second Respondent emphatically contends that there is
no provision in the I&B Code, 2016 or the Regulations which mentions the last date for
submission of a 'Resolution Plan' by the shortlisted persons cannot be extended and in
reality, the same falls within the purview of the 'commercial wisdom of the Appellant'.
64. The Learned Counsel for the Second Respondent submits that the First Respondent
had strongly objected to the consideration of the Vedanta 'Resolution Plan' through
email dated 28.04.2021 and letter dated 30.04.2021, based on the reason that it was
beyond the last date for submission and that the first Respondent sought further time
till 05.05.2021 to submit its 'Resolution Plan'. Again, the 'First Respondent' had prayed
for more time through email dated 10.05.2021, sought further time till 24.05.2021 to
submits its 'Resolution Plan'.
65. Because of the fact that the Learned Counsel for the Second Respondent points out
that on the instructions of the Appellant, since the Second Respondent had extended the
last date for submission of 'Resolution Plan' till 12.05.2021, the first Respondent

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submitted the 'Resolution Plan' of May 12.2021. Subsequently, on 02.06.2021, the First
Respondent again sought time to submit a revised 'Resolution Plan' simultaneously with
the filing of the 'Impugned Application', and even after filing of the 'Impugned
Application', the First Respondent continued to pray for an additional time and at last
submitted its final plan on 10.06.2021. Also, that the First Respondent took part in the
'Corporate Insolvency Resolution Process' without any protest, until even after filing of
the 'Impugned Application'.
66. It is the clear cut stand of the Second Respondent that the First Respondent having
availed the benefit of the extension of time given by the Second Respondent and the
Appellant, it is not open to the First Respondent to challenge that very extension.
67. The prime contention advanced on behalf of the Second Respondent is that in the
absence of an order from the 'Adjudicating Authority' on the expiry of the 330 days of
'Corporate Insolvency Resolution Process', the Appellant and the Second Respondent
were left with no option but to continue with the 'Corporate Insolvency Resolution
Process' of the 'Corporate Debtor' in the best interest of the 'Corporate Debtor', its
employees and other stake holders, bearing in mind the object and spirit of the Code.
68. The Learned Counsel for the Second Respondent contends that the impugned order
of the 'Adjudicating Authority' begs the question that in the event of lapse of 330 days'
period and in the absence of an order from the 'Adjudicating Authority', pertaining to an
extension, whether the 'Corporate Insolvency Resolution Process' can be stopped until
such an order is passed.
6 9 . The Learned Counsel for the Second Respondent (Resolution
Professional)/Appellant submits that the 'Adjudicating Authority' in the impugned order
dated 24.06.2021 in I.A. 244 of 2021 in CP(IB) No. 184/HDB/07/2019 at paragraph 16
had wrongly observed that:
"...we are of the view that CoC and Resolution Professional have taken the
process into their own hands even though they cannot extend timelines beyond
330 days unilaterally without the approval of the Adjudicating Authority. This
action of Resolution Professional is contrary to the letter and spirit of the Code
and its Regulations."
and finally came to the conclusion that the 'CoC' has no business to extend RFRP
beyond 330 days without the specific approval of 'Adjudicating Authority' etc.
Assessment
70. Before the 'Adjudicating Authority', because of the fault committed by the Corporate
Debtor (M/s. Meenakshi Energy Ltd.) in regard to the payment of the financial debt, a
petition/application (under Section 7 of the I&B Code) was filed by the Financial
Creditor/State Bank of India, and the said petition was admitted on 07.11.2019 by the
'Adjudicating Authority' in CP (IB) No. 184/HDB/7/2017 and that the Second
Respondent/Ravi Shankar Devarakonda was appointed as an 'Interim Resolution
Professional' of the 'Corporate Debtor'. Later, the Resolution Professional's appointment
was affirmed in the first meeting of the 'Committee of Creditors' and later, Mr. Ravi
Shankar Devarakonda was appointed as 'Resolution Professional' on 05.12.2019.
7 1 . According to the First Respondent/Applicant the Second Respondent/Resolution
Professional initially, published Form G, on 21.01.2020, based on which, the First
Respondent/Applicant submitted its 'Expression of Interest' on 21.02.2020. Later, the

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'Resolution Professional' prepared a final list of 'Prospective Resolution Applicants' on
23.03.2020, but because of the 'Covid-19 Pandemic' and on account of the imposition of
the nationwide lockdown on 23.03.2020, the Second Respondent/Resolution
Professional lost significant time and was unable to consider the proposal made by the
'Prospective Resolution Applicants'.
7 2 . In fact, it comes to be known that an I.A. 582/2020 filed by 'Resolution
Professional'/Second Respondent the 'Adjudicating Authority' granted an extension of
time as per order dated 25.08.2020. Because of the fact that CIRP period of 270 days
came to an end on 10.11.2020. I.A. No. 1079 of 2020 was filed by the 'Resolution
Professional' praying for an extension of the 'CIRP' period. In the interregnum, the
Resolution Professional had circulated the request for 'Resolution Plan' dated
29.10.2020 and in fact the 'Adjudicating Authority', had extended the 'CIRP' period by
another 60 days as per order dated 08.01.2021 and directed the Respondent/Resolution
Professional to complete the process within 330 days, failing which mandatory
'Liquidation Proceedings' would commence.
7 3 . Later, I.A. No. 120 of 2021 was filed by the Second Respondent/'Resolution
Professional' before the 'Adjudicating Authority' praying for extension of 60 days that
was granted as per order dated 08.01.2021. In view of the fact, that CIRP must be
completed within 330 days as noted in the order of the 'Adjudicating Authority' dated
08.01.2021, failing which the liquidation proceeding would be initiated the Second
Respondent/'Resolution Professional' filed an Appeal before 'National Company Law
Appellate Tribunal', Chennai Bench in Comp App (AT) (CH) (INS) No. 15 of 2021 and
that the 'Appellate Tribunal' through an order dated 25.03.2021 directed the
'Adjudicating Authority' to take up the I.A. No. 120 of 2021 and dispose of the same by
passing a 'reasoned order' and dismissed the Appeal 'as withdrawn'.
74. It is brought to the notice of this Tribunal that upon the extension of 'CIRP' period,
as per order dated 08.01.2021 the Second Respondent/Resolution Professional had re-
issued the Form G on 25.01.2021, pursuant to the original Form G, which was earlier
published on 21.01.2020.
75. In terms of the Invitation for 'Expression of Interest', a final list of 'Prospective
Resolution Applicants' was drawn on 08.02.2021 and they were to furnish their
respective Resolution Plan on or before 08.03.2021. Also that, as per the 'Form G' (Re-
issued) the 'Successful Resolution Plan' was required to be submitted before the
'Adjudicating Authority' on 09.03.2021 for its approval.
76. The First Respondent/Applicant submitted its 'Resolution Plan' date 06.03.2021 to
the 'Resolution Professional' and the 'Committee of Creditors' before the ending of the
'CIRP' period of i.e. 08.03.2021. Indeed, the Applicant/First Respondent made an
'Earnest Money Deposit of Rs. 1 crores as per clause 14A.1.(d) of the Request for
'Resolution Plan' dated 29.10.2020 and after the submission of the 'Resolution Plan'
before the Resolution Professional, the same was presented before the 'Committee of
Creditors' in a sealed envelope in the 18th Meeting of the 'Committee of Creditors' that
took place on 10.03.2021. Furthermore, in the CoC meeting that took place on
10.03.2021, the 'Resolution Plan' furnished by the First Respondent/Applicant was
presented and lengthily discussed.
7 7 . Apart from the above, the Second Respondent/Resolution Professional had
requested the First Respondent/Applicant to furnish an excel model version on financial
projections pertaining to the 'Resolution Plan' through email dated 12.03.2021 and on

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through email dated 17.03.2021, the Second Respondent/Resolution Professional had
insisted that 'CIRP' is a 'time bound' process and requested the First
Respondent/Applicant to furnish the clarifications by 19.03.2021 and the clarifications
were submitted through email 25.03.2021.
78. It is the version of the First Respondent/Prospective Resolution Applicant that the
'Resolution Professional' sought the response of the Applicant to the certain comments
made by the Committee of Creditors pertaining to the 'Resolution Plan' and requested
the First Respondent/Applicant to respond early, as the same was to be discussed in the
ensuing Committee of Creditor's Meeting to be held on 05.04.2021. However, the First
Respondent/Applicant had prayed for time till 08.04.2021 and submitted his response
through email dated 09.04.2021 alongwith other relevant documents.
79. The First Respondent/Applicant had finally submitted a 'Revised Offer' tailored to
meet the requirements of the Committee of Creditors, which was informed to the
Resolution Professional through email on 15.04.2021. Further, the Resolution
Professional had addressed an email to the First Respondent/Applicant informing them
that the deadline to furnish the 'Resolution Plan' by the 'Prospective Resolution
Applicants' was extended unilaterally, as per the decision of the 'Committee of Creditors'
and further informed that the 'Committee of Creditors' had received an additional ''Plan''
after the deadline for submission of the 'Resolution Plan' and hence decided to extend
the deadline for all 'Prospective Resolution Applicants' included in the final list of the
'Prospective Resolutions Applicants' dated 21.02.2021 (one time opportunity to submit
'Improvised Plan'). In fact, the Resolution Professional through its email dated
21.04.2021 had informed that the consideration of the 'Additional Resolution Plan'
would be subject to the decision of the 'Adjudicating Authority'.
8 0 . It is averred by the First Respondent/Applicant in IA 244/2021 in CP (IB) No.
184/HDB/2019 that being dissatisfied with the email of the 'Resolution Professional'
dated 21.04.2021, it, on 30.04.2021 had addressed a Letter/email to the 'Resolution
Professional' strongly objecting to the consideration of the 'Additional Resolution Plan',
for which no reply was received from the 'Resolution Professional'. Further, the deadline
to submit the final 'Resolution Plan' was again extended till 05.05.2021. Also that, no
extension of CIRP period beyond 08.03.2021 was granted, although an application was
pending determination before the 'Adjudicating Authority'.
81. The stand of the First Respondent/Applicant is that IA No. 1079/2020 and 120/2021
and the 'Appeal' filed before the NCLT, Chennai, are to the limited extent of an
extension of the CIRP period after 330 days. In fact, as on date, no extension was
granted by the Adjudicating Authority, because of the fact, IA No. 120/2021 was not
heard.
8 2 . The plea of the First Respondent/Applicant in IA No. 244/2021 in CP(IB) No.
184/HDB/2019 is that the said I.A. was filed because of the fact that 'Resolution Plan' of
the First Respondent/Applicant was disclosed to the 'Committee of Creditors' and the
contents of the same were made known to all the creditors and since the confidential
details of the First Respondent/Applicant plan were disclosed, the 'Resolution
Professional' cannot consider the 'Resolution Plan' filed by any proposed 'Resolution
Applicant' subsequently at a later stage.
8 3 . The pivotal stand of the First Respondent/Applicant is that the action of the
'Resolution Professional' in considering the 'Additional Plan' which was submitted after
deadline, and after the 'Resolution Plan' made by the First Respondent/Applicant was

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disclosed and neither the 'Resolution Professional' nor the 'Committee of Creditors' do
have the powers to unilaterally conduct 'CIRP' against the spirit of 'I&B' Code, in the
guise of 'Commercial Wisdom'.
84. It is useful for this Tribunal to make a pertinent mention that in IA No. 244/2021 in
CP No. (IB)184/HDB/7/2019 (filed by the First Respondent/Prospective Resolution
Applicant (Consortium of Prudent ARC Ltd. and M/s. Vizag Minerals & Logistics Pvt.
Ltd.)) ((under Section 60(5) of the I&B Code read with Regulation 36-A of IBBI
Regulations 2016 read with Rule 11 of NCLT Rules, 2016) before the 'Adjudicating
Authority', the undermentioned reliefs were sought for:-
a) To direct the Respondent/Resolution Professional to not receive/consider any
Resolution Plan submitted by any prospective Resolution Applicants after the
deadline specified in Form G dated 25.01.2021; and
b) To direct the Respondent/Resolution Professional to place only the plans
submitted before the due date before the Committee of Creditors for its
consideration;
8 5 . Before the 'Adjudicating Authority' in the 'Reply' filed on behalf of Members
belonging to the Committee of Creditors of the Corporate Debtor through 'State Bank of
India' at paragraph 4 (a) and 4(c) it is averred as under:-
"a) The Applicant Consortium lacks the locus standi to file the instant
Application. The Applicant Consortium being a prospective resolution applicant
has no vested or fundamental right vis-Ã -vis the CIRP until their resolution
plan is approved for the Corporate Debtor as held by the Hon'ble Supreme
Court decision in the case of Arcelor Mittal India Pvt. Limited Vs. Satish Kumar
Gupta and Ors, (Judgement dated October 4, 2018 in Civil Appeal Nos. 9402-
9405 of 2018)."
c) The instant Application is not maintainable and premature at this stage in as
much as (a) no resolution plan has yet been approved by the CoC so far: (b)
Applicant Consortium has no vested or fundamental right to raise challenge vis-
à -vis the CIRP at this stage: and (c) the Extension Application seeking time for
completion of CIRP is pending adjudication before the Hon'ble Tribunal."
86. Before the Adjudicating Authority, the 2nd Respondent/Resolution Professional in
the Reply to IA No. 244/2021 in CP(IB) No. 184/HDB/7/2019 had referred to the
judgement of Hon'ble Supreme Court dated 04.10.2018 in the matter of Committee of
Creditors of Essar Steel India Ltd. V Satish Kumar Gupta and Others wherein it was
observed that 'no vested right inheres in any Resolution Applicant to have its Resolution
Plan considered by the Committee of Creditors' and further, it was held that no
challenge can be made before the 'Adjudicating Authority' by a 'Resolution Applicant'
until a 'Resolution Plan' is approved by the 'Adjudicating Authority'.
87. The stand of the Resolution Professional/2nd Respondent of Meenakshi Energy Ltd.
is that the 'Applicant' can only assail a 'Resolution Plan' which is approved by the
'Adjudicating Authority' and as on date, 'no adjudication' is made and as such the IA No.
244/2021 in CP (IB) No. 184/HDB/7/2019 on the file of the Adjudicating Authority
(National Company Law Tribunal, Hyderabad Bench) is a 'premature' and 'not
maintainable' one.
8 8 . At this juncture, this Tribunal points out that in the impugned order dated

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24.06.2021 in IA No. 244/2021 in CP(IB) No. 184/HDB/7/2019 passed by the
'Adjudicating Authority' paragraph 1 reads as under:-
"1. This Application is filed under Section 60(5) of Insolvency & Bankruptcy
Code, 2016 (herein after referred to as Code) by prospective Resolution
Applicant seeking directions not to allow the Resolution Professional to accept
any plan after the closure of due date of CIRP i.e. 08.03.20221(sic)."
89. A cursory perusal of the Impugned Order dated 24.06.2021 in IA No. 244/2021 in
CP (IB) No. 184/HDB/7/2019 (filed by the First Respondent/Applicant) indicates that no
reference was made to the 2nd relief sought for in the aforesaid IA No. 244/2021 i.e. in
regard to the issuance of direction to the Resolution Professional to place only the plans
submitted before the due date before the 'Committee of Creditors' for its consideration.
90. Continuing further, this 'Tribunal' relevantly points out that in the 'Impugned Order'
dated 24.06.2021 in IA No. 244/2021 in CP (IB) No. 184/HDB/7/2019, the Adjudicating
Authority, (National Company Law Tribunal, Bench II, Hyderabad) had not dealt with
the aspect of 'pleas' of 'Locus Standi' of the First Respondent/Prospective Resolution
Applicant to file IA No. 244/2021 and the 'Maintainability' of the 'Application', (although
the said pleas were taken by the Committee of Creditors of Meenakshi Energy Ltd. as
well as by the Resolution Professional) to the effect that 'as on date, 'no adjudication'
has been made in regard to the 'Resolution Plan'. However, keeping in mind the
jurisdiction of the 'Adjudicating Authority', (National Company Law Tribunal) as per
ingredients of Section 60(5)(c) of the I&B Code, 2016, 'this Tribunal' holds that the
'Adjudicating Authority' (National Company Law Tribunal, Hyderabad Bench-II) is
entitled to determine the question of priorities, question of law or facts arising out of or
in relation to Insolvency Resolution (relating to the 'Corporate Debtor') in I.A. No. 244
of 2021 in CP (IB) No. 184/HDB/7/2019 and to dispose of the same on merits, of
course, by passing a reasoned/speaking order.
91. At this stage, it is not out of place for this Tribunal to make a relevant mention that
the 'Adjudicating Authority' on 07.11.2019 had admitted the Section 7 Application filed
by the State Bank of India (Financial Creditor) under 'I&B' Code, 2016 initiating the
'CIRP' against the 'Corporate Debtor'/Meenakshi Energy Ltd., Telangana.
9 2 . In fact, the Resolution Professional on 21.01.2020 had issued the First Form G
inviting 'Expression of Interest' from prospective Resolution Applicant. The Adjudicating
Authority in IA No. 581 and 582/2020 in CP(IB) No. 184/HDB/7/2019 filed by the 2nd
Respondent/Resolution Professional/Applicant on 25.08.2020 had excluded the period
from 25.3.2020 to 30.06.2020 from the computation of 'Corporate Insolvency
Resolution Process' and thus the period of 180 days of CIRP comes to an end on
11.08.2020 and also granted extension of CIRP period in the matter of M/s. Meenakshi
Energy Ltd. beyond 180 days by a further period of 90 days with effect from
12.08.2020.
93. In the instant case, the Adjudicating Authority on 08.01.2021 in IA No. 1079/2020
in CP (IB) No. 184/HDB/7/2019 (filed by the 2nd Respondent/Resolution Professional)
had granted another 60 days extension from 08.01.2021 expiring on 08.03.2021 and
that the 330 days period was also to lapse on the same day.
9 4 . It transpires that the Resolution Professional had re-issued the Form G on
25.01.2021 because of the perceived increase in value of the Corporate Debtor as per
Regulation 36-A read with Regulation 36(B)(7) of IBBI (Insolvency Resolution for
Corporate Persons) Regulations 2016. The last date for submission of 'Resolution Plan'

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was on 24.02.2021 and further, that the said date was extended to 01.03.2021, till
06.03.2021 and then, finally till 08.03.2021.
95. Be it noted, that on 05.03.2021 another prospective Resolution Applicant/Sindhu
Trade Links Ltd. (''STLL'') had submitted his 'Resolution Plan'. Further, on 06.03.2021
the 'Resolution Plan' of the First Respondent/Consortium of Prudent ARC Ltd. was filed
together with the Plan, payment of 'Earnest Money' Deposit of Rs. 1 crore was made.
96. On 08.03.2021, the 330 days' period had expired and that the for submission of
'Resolution Plan' through 'Resolution Professional' 'Form G' was re-issued on
06.03.2021.
97. It is significant to point out that in Comp App (AT) (CH) (Ins) No. 15/2021 on the
file of NCLAT, Chennai, filed by the Second Respondent/Resolution Professional (as an
'Appellant') against the 'Committee of Creditors of Meenakshi Energy Ltd.' on
24.03.2021, this 'Tribunal', at paragraph 17 had observed the following:-
"17. However, this 'Tribunal' directs the 'Adjudicating Authority' (National
Company Law Tribunal, Hyderabad Bench, Hyderabad) to take up the IA No.
120 of 2021 (filed by the Appellant/Applicant seeking extension of 60 days for
completion of 'CIRP') pending on its file, on the next date of hearing i.e.
23.04.2021 and to dispose of the same on merits by passing a 'reasoned order',
of course, in a fair, Just and dispassionate manner in accordance with Law and
in the manner known to Law, at an early date."
98. The 'Adjudicating Authority' (National Company Law Tribunal, Hyderabad Bench) in
I.A. No. 120 of 2021 filed by the Resolution Professional (seeking for an 'extension of
CIRP process', which was pending before it), on 15.07.2021 passed an order granting
45 days for completion of the CIRP process, much after the order passed by it in IA No.
244/2021 in CP (IB) No. 184/HDB/7/2019 (filed by the First Respondent/Consortium of
Prudent ARC and Vizag Minerals/Applicant).
99. It must be borne in mind that in IA No. 244/2021 in CP (IB) No. 184/HDB/7/2019
(filed by the First Respondent/Consortium of Prudent ARC and Vizag Minerals/Applicant)
an order was passed on 24.06.2021, but the said impugned order was published on the
'Adjudicating Authority' (Tribunal's website) on 09.07.2021. In this connection this
tribunal adverts to Rule 150 of the National Company Law Tribunal Rules, 2016 which
reads as under:
150. "Pronouncement of Order.- (1) The Tribunal, after hearing the applicant
and respondent, shall make and pronounce an order either at once or, as soon
as thereafter as may be practicable but not later than thirty days from the final
hearing.
(2) Every order of the Tribunal shall be in writing and shall be signed and dated
by the President or Member or Members constituting the Bench which heard the
case and pronounced the order.
(3) A certified copy of every order passed by the Tribunal shall be given to the
parties.
(4) The Tribunal, may transmit order made by it to any court for enforcement,
on application made by either of the parties to the order or suo motu.

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 (5) Every order or judgment or notice shall bear the seal of the Tribunal."
100. At this stage, this Tribunal aptly points out that in Comp App (AT) (CH) (Ins) No.
15/2021 on the file of National Company Law Appellate Tribunal, Chennai Bench a
direction was issued to the 'Adjudicating Authority' to take up I.A. No. 120 of 2021 on
the next date of hearing i.e. 23.04.2021 and to dispose of the same on merits etc. at an
early date.
101. I.A. No. 120 of 2021 in CP (IB) No. 184/HDB/7/2019 (seeking Extension of CIRP
period) was filed by the Resolution Professional on 03.03.2021, six days before the
expiry of 330 days on 09.03.2021 and prior to the receipt of any 'Resolution Plans'. In
fact, the I.A. No. 120 of 2021 in CP (IB) No. 184/HDB/7/2019 was decided on
15.07.2021, more than four months from the date of filing of the said Interlocutory
Application. In this connection, this Tribunal 'very pertinently points out that 'judicial
propriety', 'sobriety' and comity of judicial discipline require that it is the 'primordial
duty' of the Tribunal to adhere to the direction issued by an 'Appellate Tribunal' in a
given concluded Appellate legal proceedings of course with utmost care, caution and
circumspection, in our processual justice delivery system. Viewed in that perspective,
'this Tribunal' is of the considered opinion that I.A. 120 of 2021 filed by the Resolution
Professional on 03.03.2021 (six days before the expiry of 330 days on 09.03.2021)
ought to have been determined by the 'Adjudicating Authority', prior to the passing of
the impugned order in I.A. No. 244 of 2021 in CP (IB) No. 184/HDB/7/2019 dated
24.06.2021 (uploaded on 09.07.2021), with a view not to give room for complications
and to avoid wider ramifications and implications. Unfortunately, such a course was not
resorted to, which in the considered opinion of this Tribunal is not a desirable/palatable
one.
Need of Speed
102. It cannot be gainsaid that 'speed' is the gist for an effective functioning of the
'I&B' Code. As per Section 12(2) of the Code, an application for an extension of
'Insolvency Resolution Process' must be made by Resolution Professional, if
directed/instructed in that regard, by means of a Resolution passed by the 75%
'majority of the Creditors'. The timeline i.e. prescribed is for the reason that liquidation
proceedings otherwise should not be for an interminable period, thereby jeopardizing
the interest of all Stakeholders in the 'Corporate Insolvency Resolution Process'.
Observance of Time Frame
103. Indeed, all the concerned Authorities are necessarily required to adhere to the
timeline enunciated in Regulation 40A of the IBBI (Corporate Insolvency Resolution
Process for Corporate Persons) Regulations, 2016. No wonder, the I&B Code, 2016
provides for the consequences of the period mentioned in Section 12 coming to an end
in the event that the said period is over without the receipt of a 'Resolution Plan' or
after rejection of a 'Resolution Plan' in terms of Section 31.
Adjudicating Authority's Power
104. The power of the 'Adjudicating Authority' to extend further time limit cannot be
extended beyond 90 days, which is the maximum period in Section 12 of the I&B Code.
Section 12(3) of the Code further enjoins that any extension of CIRP under this Section
shall not be granted more than once and Section 12(3) of the Code is to be read with
the third proviso to Section 30(4) which mentions that the maximum period of 30 days
specified in the second proviso is permissible, as the only exception to the extension of

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the period not being granted more than once as per decision of the Hon'ble Supreme
Court in 'Arcelor Mittal India Pvt. Ltd.' Vs. 'Satish Kumar Gupta'. Undoubtedly, an
extension of time limit for CIRP is a grey/critical arena. In a case, where CIRP is
pending and not completed within 330 days within which the Resolution of stressed
asset is to take place, only in an exceptional/extraordinary case, the outer time limit of
330 days can be extended with a view to secure the ends of justice.
Effect of Non-Observance of Time Line
105. A Tribunal/Appellate Tribunal is to follow the requirement and discipline of 'I&B'
Code, 2016, enacted by the Parliament, to streamline the Resolution of Corporate
Insolvencies, of course bearing in mind of the fact that the relevant provisions of the
Code are well thought of in 'public interest' and to ensure good Corporate Governance.
The repercussions in not following the timeline prescribed in IBC are that (i)
maximisation of the value assets of the Corporate Debtor will weaken the realisation
potential prospect of the Creditors; (ii) The promoters of the Company will remain
undischarged from their obligation/liability. The individual who is to proceed against
the Company, is suspended from exercising his right for moratorium remains in force
till the CIRP period is continuing.
106. According to the amended Regulation 37 of Insolvency and Bankruptcy Board of
India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, a
Resolution Plan shall provide for the measures as may be necessary for Insolvency
Resolution of 'Corporate Debtor' for maximisation of his assets including but not limited
to the matters mentioned in this Regulation.
107. As per Regulation 40 of Insolvency and Bankruptcy Board of India (Insolvency
Resolution Process for Corporate Persons) Regulations, 2016, the Committee may
instruct the Resolution Professional to make an application to the 'Adjudicating
Authority' under this Section (12) to extend the Insolvency Resolution Process period.
Upon receiving an instruction from the Committee under this 'Regulation', the
'Resolution Professional' shall make an application to the 'Adjudicating Authority' for
such an extension.
108. It is to be pointed out that the Tribunal/Appellate Tribunal are showered with
restricted jurisdiction mentioned in the 'I&B' Code, 2016 and they cannot function as
'Courts of Equities' or exercise plenary powers. In short, they are scrupulously bound by
the 'discipline of statutory provisions' and they cannot traverse beyond the parameters
of law.
Resolution Professional's Duty
109. A 'Resolution Professional' is not to be made liable because his perception is
incorrect unless it is unreasonable. He is required to take prudent/reasonable care in
arriving at a subjective judgment based on circumstances that the 'best price', to be
permitted by him, as per decision Standard Chartered Bank Ltd. v. Walker, reported in
MANU/UKWA/0102/1982 : (1982) 1 WLR 1410. One is to prove that the 'Resolution
Professional' had committed an error which reasonably skilled and careful insolvency
practitioner would not have made.
110. As per Section 25(h) of the 'I&B' Code, 2016 the 'Resolution Professional' has a
duty to invite 'Prospective Resolution Applicants', who satisfy such criteria as may be
laid down by him with the approval of 'Committee of Creditors', considering the
complexity and scale of operations of the 'Business' of the 'Corporate Debtor' and such

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other conditions as may be prescribed by 'IBBI' to project 'Resolution Plans', present
such Plan(s) to the 'Committee of Creditors' etc. As per Section 30(2) of the I&B Code,
the 'Resolution Professional' is to examine each 'Resolution Plan' received by him and
confirm that it meets the requirements mentioned in sub-section (2).
Confidentiality of Plan
111. In fact, the 'Resolution Plan' furnished by one or the other 'Resolution Applicant' is
a 'confidential' one and it cannot be disclosed to any 'Competing' 'Resolution Applicant'
nor any view can be taken or objection can be asked for from other 'Resolution
Applicants' in regard to one or the other 'Resolution Plan'. It cannot be lost sight of that
the conduct of 'Resolution Professional' is important in deciding whether he is guilty of
'Misfeasance' or 'Fraud' or any other 'Serious Irregularity' in the preparation of
'Resolution Plan'. As a matter of fact, the 'Resolution Plan' 'is confidential in nature'. No
wonder, the Resolution Professional is to act in an expeditious fashion. In short, an
'Insolvency Professional' is to perform his duties by facing challenges that he come
across during CIRP.
112. It is relevantly pointed out that Section 60(5) of the I&B Code, 2016 is not an all
pervading section conferring jurisdiction upon an 'Adjudicating Authority' to determine
any issue pertaining to the 'Corporate Debtor', arising out of Insolvency Resolution
Process. In determining the aspect of priorities, all points/issues of law of facts arising
out of an order pertaining to the Insolvency Resolution, the 'Adjudicating Authority' is to
follow the procedural aspects enumerated in the relevant Sections of the Code,
depending on the points/issues involved.
1 1 3 . As far as the present case is concerned, the 'Resolution Plan' of the First
Respondent/Consortium of Prudent ARC Limited & Vizag Minerals and Logistics Pvt. Ltd.
was filed along with plan, payment of Earnest Money Deposit of Rs. 1/- crore on
06.03.2021. As a matter of fact, on 05.03.2021 Sindhu Trade Links Ltd. (STLL - another
'Prospective Resolution Applicant') submitted its Resolution Plan. The Vedanta submitted
its 'Resolution Plan' on 16.04.2021 i.e. after the due date of 08.03.2021 (the expiry of
330 days' period). The 'Committee of Creditors' on 20.04.2021 had decided to consider
the 'Vedanta 'Resolution Plan' ' in the absence of any orders being obtained from the
'Adjudicating Authority' in the teeth of the ingredients of the 'I&B' Code, 2016.
1 1 4 . Although, on behalf of the Second Respondent/Resolution Professional it is
brought to the notice of this 'Tribunal' that since the decision of the 'Committee of
Creditors' to extend the time beyond 08.03.2021 was at all times been subject to 330-
390 days Extension Application and the same was also adequately recorded in the
Minutes of the 20th CoC Meeting that took place on 20.04.2021 and all other
correspondence exchanged with the 'Prospective Resolution Applicants' (including the
First Respondent/Applicant) and later, an extension of 45 days was granted as per order
dated 15.07.2021 in I.A. 120 of 2021 in CP (IB) No. 184/HDB/7/2019 (and despite the
fact that on the date of passing the impugned order in I.A. No. 244 of 2021 in CP (IB)
No. 184/HDB/7/2019, I.A. 120 of 2021 in CP (IB) No. 184/HDB/7/2019 was pending on
the file of the 'Adjudicating Authority') yet this Tribunal, keeping in mind of the
averment made by the First Respondent/Applicant at paragraph 21 inter alia to the fact
that I.A. No. 120 of 2021 in CP (IB) No. 184/HDB/7/2019 was filed 'essentially on the
ground that since the 'Resolution Plan' of the Applicant (First Respondent) has been
disclosed to the 'Committee of Creditors' and the contents of the same have been made
known to all the Creditors pursuant to disclosing all the confidential details of the
Appellant's Plan and not maintaining the secrecy of 'fidelity'/'confidentiality' comes to a

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resultant conclusion that the 'Resolution Plan' of Vedanta which was submitted after the
due date 08.03.2021 (expiry of 330 days period-general rule of outer limit, of) and as
such, the same is not to be considered either by the 'Committee of Creditors' or the
Second Respondent/'Resolution Professional' (Appellant in Comp App (AT) (CH (INS)
174 of 2021), because of the breach of the 'confidentiality' of the 'Resolution Plan'.
Result
115. In the light of foregoing upshot, 'this Tribunal' considering the entire conspectus
of the attended facts and circumstances of the case in an holistic fashion and in view of
the fact that as per the ingredients of Section 60(5) of the I&B Code, the facts/points of
law were raised in I.A. 244 of 2021 in CP (IB) No. 184/HDB/7/2019 (filed by the First
Respondent/'Prospective Resolution Applicant') arising out of the impugned order
pertaining to the Insolvency Resolution Process (concerning the 'Corporate Debtor') and
further that the 'Adjudicating Authority' is to adhere to the procedural aspect prescribed
in relevant sections of the I&B Code, of course depending on the question of
priorities/question of law and facts involved, and this Tribunal, by adhering to the
statutory requirements of I&B Code, 2016 directs the Second Respondent/Resolution
Professional to place only the 'Resolution Plan' of First Respondent/Consortium of
Prudent ARC Limited & Vizag Minerals and Logistics Pvt. Ltd. ('Prospective Resolution
Applicant') and the 'Resolution Plan' of 'Sindhu Trade Links Ltd.' ('STLL'), which were
submitted before the due date, before the 'Committee of Creditors' for its consideration
and to complete the 'CIRP' keeping in mind on 07.11.2019, the C.P.(IB) No.
184/7/HDB/2019 was admitted by the 'Adjudicating Authority' commencing 'CIRP'
against the 'Corporate Debtor', a timely resolution of stressed assets is a prime factor in
the successful working of the Code, the interest of the 'Stakeholders' including the
'Creditor(s)', effectively balancing within the four corners of 'Law', and as per 'I&B'
Code, 2016 and 'Regulations' without any further loss of time.
116. With the aforesaid observations and directions the Company Appeal (AT) (CH)
(INS.) Nos. 166 & 174 of 2021 stand disposed of. No costs. All connected pending IAs
are closed.
117. Before parting with the case, in view fact that the Second Respondent/Resolution
Professional/Appellant in Comp App (AT) (CH) (INS) 174 of 2021 has come out with a
clear cut stand that the decision of the CoC that timeline beyond 08.03.2021 was at all
times being subject to the outcome of 330-390 days Extension Application, which was
adequately recorded in the Minutes of 20th CoC Meeting that took place on 20.04.2021
and all other correspondence exchanged with the 'Prospective Resolution Applicants'
including the First Respondent/Applicant (vide para 13 of the reply affidavit filed on
behalf of Resolution Professional, Mr. Ravi Sankar Devarakonda, the observation of the
'Adjudicating Authority' (National Company Law Tribunal, Bench-II, Hyderabad) at para
16 of the impugned order in I.A. No. 244 of 2021 in CP (IB) No. 184/HDB/7/2019 dated
24.06.2021 to the effect that .....
"CoC in its commercial wisdom has requested the Resolution Professional to
extend the RFRP timelines beyond 330 days with a view to given an opportunity
to Vedanta Limited to submit their Resolution Plan in the name of value
maximization of Corporate Debtor, albeit opportunity was given to the other
two resolution applicants to revise their proposal. As this being status, we are
of the view that CoC and Resolution Professional have taken the process into
their own hands even though they cannot extend timelines beyond 330 days
unilaterally without the approval of the 'Adjudicating Authority'. This action of

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 Resolution Professional is contrary to the letter and spirit of the Code and its
Regulations." and the observations made in paragraph 17 of the impugned
order to the effect that .... "In our view, the CoC and the Resolution
Professional has categorically violated the timelines in the name of value
maximization, thereby kept on extending the process beyond 330 days and CoC
in its wisdom has stepped into the shoes of the Adjudicating Authority and
extended the period without any rhyme or reason. The CoC has no business to
extend RFRP beyond 330 days without the specific approval of Adjudicating
Authority. We strongly express our reservations on the decision of CoC as well
RP in this regard." are not warranted in the considered opinion of this Tribunal,
of course based on the facts and circumstances of the instant case, which float
on the surface.
Viewed in that perspective, those observations and any other observations made against
the 'Committee of Creditors' and the 'Resolution Professional' by the 'Adjudicating
Authority' (National Company Law Tribunal, Hyderabad Bench-II, Hyderabad) in the
impugned order dated 24.06.2021 I.A. No. 244 of 2021 C.P.(IB) No. 184/7/HDB/2019,
detriment to their interest, are set aside to prevent an 'aberration of justice' and to
promote 'substantial cause of justice'.
© Manupatra Information Solutions Pvt. Ltd.

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