Case: AJAY GUPTA Vs. PRAMOD KUMAR SHARMA

amendments:- (a) To uncaps the CIRP costs on conditions stated therein; (b) To reduce term of the plan from 180 days to 90 days. At this point of time, we are conscious of the fact that the CIRP period will come to end on 06.01.2022 and a decision on the resolution plans will have to be taken first by the CoC and, thereafter by this Adjudicating Authority. Therefore, the ends of justice will be met if we direct the applicant herein to place the affidavits at Page Nos. 290 to 298 alongwith the covering letter addressed to the sole member of the CoC for consideration. Since we do not wish to disturb level playing field, the other resolution applicants whose plans are also being considered will also be permitted to place any modification in their submitted resolution plan before the CoC for its consideration. Such modifications shall be communicated to the CoC, no later than 48 hours from now. Accordingly, IA No. 367/2021 is disposed of. 6. Thereafter, the resolution plans were considered by the CoC on 21/22.12.2021 and the plan of the other resolution applicant was approved. 7. The appellant, on the other hand, attempted to question the said order dated 13.12.2021 before the Appellate Tribunal. The Appellate Tribunal took note of the grievance of the appellant that its resolution plan came to be known to everyone and hence, no opportunity should have been given to the others to modify. 8. The Appellate Tribunal found no substance in those submissions while taking the view that the Adjudicating Authority had passed the impugned order so as to maintain the level playing field. The Appellate Tribunal also took note of the fact that the resolution plans had already been considered by CoC on 21.12.2021. 9. We may also indicate that earlier, the said order dated 13.01.2022 as passed by the Appellate Tribunal was sought to be questioned before us by the erstwhile director of the corporate debtor but, we declined to accede locus to the said appellant and hence, the said appeal [@ Dy. No. 2729 of 2022] was dismissed, while rejecting the application seeking permission to file appeal, by our order dated 07.02.2022. 10. Now, the said order dated 13.01.2022 of the Appellate Tribunal is sought to be questioned by the unsuccessful resolution applicant. 11. The learned senior counsel has painstakingly taken us through the relevant contents of the Request for Resolution Plan (RFRP, for short) as issued by the Resolution Professional as also the minutes of the meeting of CoC and the affidavit filed by the appellant. Learned counsel would strenuously contend that so far as the appellant is concerned, it had not been a case of modification of the resolution plan because modification as such was not even permissible under the conditions of RFRP; and the submissions of the appellant by way of the affidavit dated 17.11.2021 had only been to meet with the requirements of the COC, as reflected in the minutes of the meeting dated 02.11.2021 and for such a proposition, there was no justification in granting any liberty to the other resolution applicant to modify its resolution plan. Learned senior counsel has also contended that appellant had been rather prejudiced in the matter for the reason that the terms of its resolution plan became known to the other resolution applicant when the matter was examined by the Adjudicating Authority while passing order dated 13.12.2021. 12. We do not find the submissions aforesaid making out a case for interference. This is for the simple reason that on a perusal of the order dated 13.12.2021, this much is clear that certain key features/stipulations of the resolution plan were sought to be amended by the appellant. Whether it was done in response to the requirement of the CoC or otherwise, the fact of the matter remains that there was going to be modification of the relevant terms of the resolution plan of the appellant. When that was being permitted at the request of the appellant himself, we cannot find fault in the Adjudicating Authority having passed an order so as to balance the position of the respective parties and to provide level playing field by granting corresponding permission to the other resolution applicant to place its modification for consideration of CoC. 13. So far as affidavit dated 17.11.2021 is concerned, though the appellant stated in paragraph 3 thereof that the payment of upfront amount under the resolution plan was in no way going to modify the plan but, that had only been an expression of the understanding of the appellant about the legal effect of the propositions put forward by him, which included the modification of the term of plan from 180 days to 90 days. Such a proposition could not have been treated as formal or innocuous or of no material bearing. 14. So far as the factor relating to divulging of the contents of the plan is concerned, the same had been of the making of the appellant himself. If the appellant had chosen to divulge/disclose the terms of its resolution plan before the Adjudicating Authority, there had not been any fault on the part of the resolution professional or the CoC or the other resolution applicant. 15. Thus, the view taken by the Adjudicating Authority as also by the Appellate Tribunal appears to be reasonable and sound, calling for no interference. 16. Before concluding on the matter, we need to indicate two other relevant factors concerning this matter. One is that the other resolution applicant, whose resolution plan has been accepted by the Committee of Creditors, is not before us and has not been impleaded as a party respondent in this appeal. Hence, no order prejudicial to the interest of the successful resolution applicant could be passed in this appeal. Secondly, the matter would nevertheless require further processing before the Adjudicating Authority; and for that matter, we are informed that the approval of the Committee of Creditors has already been placed before the Adjudicating Authority.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]1. Having heard learned senior counsel for the appellant at sufficient length and having perused the material placed on record, we do not feel persuaded to entertain this appeal under Section 62 of Insolvency and Bankruptcy Code, 2016 (Hereinafter also referred to as the Code) by one of the resolution applicants [A consortium led by the appellant (comprising of a private limited company and the appellant himself) has been the resolution applicant] in the corporate insolvency resolution process (CIRP, for short) concerning the corporate debtor-B.B. Foods Pvt. Ltd.12. We do not find the submissions aforesaid making out a case for interference. This is for the simple reason that on a perusal of the order dated 13.12.2021, this much is clear that certain key features/stipulations of the resolution plan were sought to be amended by the appellant. Whether it was done in response to the requirement of the CoC or otherwise, the fact of the matter remains that there was going to be modification of the relevant terms of the resolution plan of the appellant. When that was being permitted at the request of the appellant himself, we cannot find fault in the Adjudicating Authority having passed an order so as to balance the position of the respective parties and to provide level playing field by granting corresponding permission to the other resolution applicant to place its modification for consideration of CoC.13. So far as affidavit dated 17.11.2021 is concerned, though the appellant stated in paragraph 3 thereof that the payment of upfront amount under the resolution plan was in no way going to modify the plan but, that had only been an expression of the understanding of the appellant about the legal effect of the propositions put forward by him, which included the modification of the term of plan from 180 days to 90 days. Such a proposition could not have been treated as formal or innocuous or of no material bearing.14. So far as the factor relating to divulging of the contents of the plan is concerned, the same had been of the making of the appellant himself. If the appellant had chosen to divulge/disclose the terms of its resolution plan before the Adjudicating Authority, there had not been any fault on the part of the resolution professional or the CoC or the other resolution applicant.15. Thus, the view taken by the Adjudicating Authority as also by the Appellate Tribunal appears to be reasonable and sound, calling for no interference.16. Before concluding on the matter, we need to indicate two other relevant factors concerning this matter. One is that the other resolution applicant, whose resolution plan has been accepted by the Committee of Creditors, is not before us and has not been impleaded as a party respondent in this appeal. Hence, no order prejudicial to the interest of the successful resolution applicant could be passed in this appeal. Secondly, the matter would nevertheless require further processing before the Adjudicating Authority; and for that matter, we are informed that the approval of the Committee of Creditors has already been placed before the Adjudicating Authority.