NGAITLANG DHAR versus PANNA PRAGATI INFRASTRUCTURE PRIVATE LIMITED & ORS.
[2021] 9 S.C.R. 1009, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Arguments
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   [2021] 9 S.C.R. 1009
1009
NGAITLANG DHAR
v.
PANNA PRAGATI INFRASTRUCTURE
PRIVATE LIMITED & ORS.
(Civil Appeal Nos.3665-3666 of 2020)
DECEMBER 17, 2021
[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]
Insolvency and Bankruptcy Code, 2016 – ‘Material
irregularity’ – When not – Corporate Insolvency Resolution Process
(CIRP) initiated in respect of Corporate Debtor – Resolution Plans
were received from four prospective Resolution Applicants including
the appellant, respondent no.2 and other two – In the meeting of
Committee of Creditors (CoC), the appellant emerged as H-1 bidder
– Resolution Plan of the appellant approved by CoC, further
approved by NCLT – Respondent No.1- contended that in the
proceedings before the CoC it had sought some time to submit its
revised Resolution Plan and had accordingly submitted the same –
Filed application seeking direction to the Resolution Professional
(RP) to take on record its revised Resolution Plan – Rejected by
NCLT – RP sought approval to the Resolution Plan submitted by the
appellant – Allowed by NCLT – Both the orders challenged by
respondent no.1 before NCLAT – Appeals allowed – Held:
Commercial wisdom of the CoC should not be interfered with, it is
only the process of decision making, which can be challenged if
there is any material irregularity in the said proceedings – In the
present case, CoC evaluated the Resolution Plans of all the four
prospective Resolution Applicants – Equal opportunity was accorded
to all –
However, the respondent no.1, without improving his bid
amount, went on insisting for more time – Procedure adopted by the
RP as well as the CoC was fair, transparent and equitable – No
material irregularity – NCLAT erred in interfering with the decision
of the CoC which was duly approved by the NCLT – Impugned
judgment set aside.
Insolvency and Bankruptcy Code, 2016 – ss.30(2), 61(3) –
Held: Opinion expressed by Committee of Creditors (CoC) after due
deliberations in the meetings through voting, as per voting shares,
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is the collective business decision – Decision of the CoC’s
‘commercial wisdom’ is non-justiciable, except on limited grounds
for challenge u/ss.30(2) or 61(3).
Allowing the appeals, the Court
1.1 The respondent No.1-PPIPL was very much aware that
the CoC has decided to finalise the proceedings by 12th February,
2020. It is also clear that though PPIPL was first called upon by
the CoC to enhance the bid amount, it had specifically rejected
the same. It insisted on disclosing the basis of score. In the
proceedings of the 5th meeting of the CoC dated 11th February,
2020, post lunch, though the appellant had enhanced his bid from
Rs.63 crore to Rs.64 crore, the representative of PPIPL
subsequently came and requested for adjourning the meeting for
few days. The said request was specifically rejected by the CoC
by informing the representative of PPIPL that it had to adhere to
the IBC timeline and would have to conclude the matter by next
day. On the next day, i.e., 12th February, 2020, when the
adjourned proceedings of the CoC were held, the respondent
No.1-PPIPL had sent an email, stating therein that the Directors
of its Company will not be available for the said meeting and
requested for deferring the meeting by a day or two. On the
insistence of all the prospective Resolution Applicants present,
the CoC clarified that since the timeline was coming to an end, it
had decided to exclude the prospective Resolution
Applicants
who were not present in the said meeting. In the said meeting,
the appellant came to be declared as the highest bidder after he
improved his bid in the open bidding held between him and Mr.
‘AA’. The Resolution Plan of the appellant was approved
unanimously by Allahabad Bank having 68.34% voting rights and
the Corporation Bank having 31.66% voting rights. It could thus
be seen that the RP as well as the CoC had acted in a totally
transparent manner. An equal opportunity was accorded to all
the prospective Resolution Applicants. However, the respondent
No.1-PPIPL, without improving his bid amount, went on insisting
for more time, which request was specifically rejected by the CoC.
[Paras 25-27][1019-D-H; 1020-A-B]
1.2 The procedure adopted by the RP as well as the CoC
was fair, transparent and equitable. The CoC was facing the
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timeline, which was to end on 24 th February, 2020, before which
it had to finalise its decision. In these circumstances, it cannot
be said that the decision of the CoC, to not grant any further time
to PPIPL for submission of its revised bid and to finalise the
Resolution Plan on 12th February, 2020 itself, can be said to be
falling in the category of the term ‘material irregularity’.
[Para 29][1020-D]
1.3 ‘Commercial wisdom’ of the CoC has been given
paramount status without any judicial intervention, for ensuring
completion of the processes within the timelines prescribed by
the IBC. It has been consistently held that it is not open to the
Adjudicating Authority (the NCLT) or the Appellate Authority
(the NCLAT) to take into consideration any other factor other
than the one specified in Section 30(2) or Section 61(3) of the
IBC. The opinion expressed by the CoC after due deliberations
in the meetings through voting, as per voting shares, is the
collective business decision and that the decision of the CoC’s
‘commercial wisdom’ is non-justiciable, except on limited grounds
as are available for challenge under Section 30(2) or Section 61(3)
of the IBC. No doubt that, under Section 61(3)(ii) of the IBC, an
appeal would be tenable if there has been material irregularity in
exercise of the powers by the RP during the corporate insolvency
resolution period. However, there is no material irregularity. In
the present case, leave apart, there being any
‘material
irregularity’, there has been no ‘irregularity’ at all in the process
adopted by the RP as well as the CoC. On the contrary, if the
CoC would have permitted the PPIPL to participate in the
process, despite it assuring the other three prospective
Resolution Applicants in its meeting held on 11-12th February,
2020, that the absentee prospective Resolution Applicant (PPIPL)
would be excluded from participation, it could have been said to
be an irregularity in the procedure followed. The dominant
purpose of the IBC is revival of the Corporate Debtor and making
it an on-going concern. In the present case, the said purpose is
already achieved, inasmuch as all the dues of the financial
creditors, i.e., the Allahabad Bank and the Corporation bank,
have already been paid, and the Corporate Debtor, in respect of
which CIRP was initiated, is now an on-going concern. The
NCLAT grossly erred in interfering with the decision of the CoC,
NGAITLANG DHAR v. PANNA PRAGATI INFRASTRUCTURE
PRIVATE LIMITED & ORS.
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which was duly approved by the NCLT. The impugned judgment
and order passed by the NCLAT is quashed and set aside.
[Paras 31, 32, 34, 37 and 38][1020-F-H; 1021-A, D-E; 1022-B-C,
G-H; 1023-A-B]
K. Sashidhar v. Indian Overseas Bank and Others
(2019) 12 SCC 150 : [2019] 3 SCR 845; Committee of
Creditors of Essar Steel India Limited Through
Authorized Signatory v. Satish Kumar Gupta and Others
(2020) 8 SCC 531 : [2019] 16 SCR 275; Maharashtra
Seamless Limited v. Padmanabhan Venkatesh and others
(2020) 11 SCC 467: [ 2020] 2 SCR 1157; Kalpraj
Dharamshi and Another v. Kotak Investment Advisors
Limited and Another (2021) SCC OnLine SC 204;
Ghanashyam Mishra and Sons Private Limited
Through the Authorized Signatory v. Edelweiss Asset
Reconstruction Company Limited Through the Director
& Ors. (2021) 9 SCC 657; Keshardeo Chamria v.
Radha Kissen Chamria and others [1953] 4 SCR 136 –
relied on.
Pratap Technocrats (P) Ltd. and others v. Monitoring
Committee of Reliance Infratel Limited and another 2021
SCC OnLine SC 569 – referred to.
Case Law Reference
[2019] 3 SCR 845
relied on
Para 31
[2019] 16 SCR 275
relied on
Para 31
[2020] 2 SCR 1157
relied on
Para 31
[1953] 4 SCR 136
relied on
Para 33
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.3665-
3666 of 2020.
From the Judgment and Order dated 19.10.2020 of the National
Company Law Appellate Tribunal, New Delhi in Company Appeal (AT)
(Insolvency) Nos.515 and 516 of 2020.
With
Civil
Appeal Nos.3742-3743 of 2020.
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Mukul Rohatgi, Sr. Adv., Arvind Kumar Gupta, Ravindra Sadanand
Chingale, Ms. Anindita Pujari, Abhijeet Sinha, Shaunak Mitra, Avik
Chaudhuri, Soumya Dutta, Rajesh Kumar Gautam, Anant Gautam, Nipun
Sharma, Ravi Solanki, Ms. Ekta Choudhary, Chaksu Thakral, Advs. for
the appearing parties.
The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. Civil Appeal Nos.3665-3666 of 2020 are filed by Ngaitlang
Dhar, the successful Resolution Applicant (H-1 bidder), and Civil Appeal
Nos. 3742-3743 of 2020 are filed by Amit Pareek, the Resolution
Professional.
2. These appeals assail the judgment and order passed by the
National Company Law Appellate Tribunal, New Delhi (hereinafter
referred to as “the NCLAT”) dated 19th October, 2020, in Company
Appeal (AT) (Insolvency) Nos. 515 of 2020 and 516 of 2020, thereby
allowing the appeals of the respondent No.1-Panna Pragati Infrastructure
Private Limited (hereinafter referred to as “PPIPL”) and the respondent
No.2-Arihant International Limited.
3. Company Appeal (AT) (Insolvency) No.515 of 2020 was filed
assailing the order dated 18th March, 2020, passed by the National
Company Law Tribunal, Guwahati Bench, Guwahati (hereinafter referred
to as “the NCLT”), in I.A. No.27 of 2020 in CP (IB) No.13/GB/2019,
filed by PPIPL and another, by which the application seeking direction
to the Resolution Professional (hereinafter referred to as “the RP”) to
take on record and consider its revised offer submitted by email dated
14th
February, 2020, came to be rejected.
4. Company Appeal (AT) (Insolvency) No.516 of 2020 was filed
assailing the order dated 18th May, 2020 passed by the NCLT, in an
unnumbered I.A. filed by the RP, vide which the appellant-Ngaitlang
Dhar’s (H-1 bidder) Resolution Plan came to be approved by the NCLT.
5. Vide the impugned judgment and order dated 19th October, 2020,
the NCLAT has set aside both the orders, dated 18th March, 2020, and
18th May, 2020, and directed the Corporate Insolvency Resolution Process
(hereinafter referred to as “CIRP”) to be resumed from the stage of
consideration of the Resolution Plans.
NGAITLANG DHAR v. PANNA PRAGATI INFRASTRUCTURE
PRIVATE LIMITED & ORS.
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6. The facts in brief giving rise to the present appeals are as
under:
7. An application being CP(IB) No.13/GB/2019 came to be filed
under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter
referred to as “the IBC”) for initiation of CIRP in respect of Meghalaya
Infratech Ltd. (hereinafter referred to as “the Corporate Debtor”) by
the Allahabad Bank (now known as Indian Bank) (hereinafter referred
to as “the Allahabad Bank”). The NCLT vide order dated 28th August,
2019 admitted the petition and as such, the CIRP came to be initiated in
respect of the Corporate Debtor and Mr. Amit Pareek came to be
appointed as the Interim RP, who was subsequently confirmed as the
RP in the first Committee of Creditors (“hereinafter referred to as “the
CoC”) meeting, held on 25th September, 2019.
8. It is not in dispute that the Allahabad Bank and the Corporation
Bank (now known as Union Bank) (hereinafter referred to as “the
Corporation Bank”) were the only financial creditors.
9. In accordance with the provisions of the IBC, Expression of
Interest (hereinafter referred to as “EOI”) was invited from the
prospective Resolution Applicants by the RP.
10. Appellant-Ngaitlang Dhar, respondent No.1-PPIPL, Mr.
Abhishek Agarwal and Mr. Ashish Jaisasaria submitted their EOI. All
the four Resolution Applicants submitted their Resolution Plans. In the
CoC meeting held on 11-12th February, 2020, the appellant-Ngaitlang
Dhar
emerged as H-1 bidder, whereas Mr. Abhishek Agarwal emerged
as H-2 bidder.
11. At the 7th CoC meeting, held on 6th March, 2020, the CoC,
with a 100% voting share, approved the Resolution Plan of the appellant-
Ngaitlang Dhar (H-1 bidder), which was further approved by the NCLT
vide order dated 18th May, 2020.
12. The respondent No.1-PPIPL contended that in the proceedings
before the CoC held on 11-12th February, 2020, it had sought for one or
two days’ time to submit its revised Resolution Plan, and accordingly, it
submitted the same on 14th February, 2020. The respondent No.1-PPIPL,
accordingly, filed I.A. No. 27 of 2020 in CP(IB) No.13/GB/2019 before
the NCLT, seeking a direction to the RP to take on record its revised
Resolution Plan, dated 14th February, 2020. The same came to be rejected
by the NCLT, vide order dated 18th March, 2020. The RP thereafter
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filed an unnumbered I.A. seeking approval to the Resolution Plan
submitted by the appellant-Ngaitlang Dhar (H-1 bidder). The said
unnumbered I.A. was allowed by the NCLT vide order dated 18th May,
2020. Both these orders came to be challenged before the NCLAT by
way of aforesaid Company Appeals by the respondent No.1-PPIPL. As
stated above, by the impugned judgment and order dated 19th October,
2020, the appeals were allowed. Being aggrieved thereby, the present
appeals are filed before this Court.
13. We have heard Shri Mukul Rohatgi, learned Senior Counsel
appearing on behalf of the appellant-Ngaitlang Dhar, the successful
Resolution Applicant (H-1 bidder) and Shri Abhijeet Sinha, learned counsel
appearing on behalf of the respondent No.1-PPIPL.
14. Shri Mukul Rohatgi, learned Senior Counsel appearing on behalf
of Ngaitlang Dhar, the successful Resolution Applicant (H-1 bidder),
submitted that the entire approach adopted by the NCLAT in the impugned
judgment and order was erroneous. He submitted that the NCLAT ought
to have taken into consideration that the CoC after exercising its
‘commercial wisdom’ has resolved to accept the Resolution Plan
submitted by Ngaitlang Dhar. He submitted that the RP had given an
equal opportunity to all the bidders/resolution applicants. He submitted
that though adequate opportunity was given to all the Resolution
Applicants by adjourning the proceedings in CoC meetings on number
of occasions, the respondent No.1-PPIPL
failed to revise its bid within
the stipulated period. He submitted that the CoC, in its meeting, held on
11-12th February, 2020, had resolved to declare Ngaitlang Dhar as the
successful resolution applicant. He submitted that, not only that, thereafter
the NCLT had also allowed the application filed by the RP to approve
the Resolution Plan of Ngaitlang Dhar.
15. Shri Rohatgi submitted that it is only after 12th February, 2020,
the respondent No.1-PPIPL, on 14th February, 2020, had sent an email
to the RP, revising its offer to Rs.65.65 crore. He submitted that when
an initial offer given by the respondent No.1-PPIPL was only of making
an upfront payment of Rs.24 crore, it is clear that the revised offer of
Rs.65.65 crore was only with a mala fide intention of protracting the
proceedings. He submitted that the NCLAT ought not to have interfered
with the ‘commercial wisdom’ of the CoC. In this respect, he relies on
various judgments of this Court.
NGAITLANG DHAR v. PANNA PRAGATI INFRASTRUCTURE
PRIVATE LIMITED & ORS. [B. R. GAVAI, J. ]
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16. Shri Rohatgi further submits that the Resolution Plan of
Ngaitlang Dhar now stands implemented, inasmuch as the dues of all
the Banks (financial creditors) have been repaid and now the Corporate
Debtor, i.e., Meghalaya Infratech Ltd. is an on-going concern.
17. Shri Abhijeet Sinha, learned counsel appearing on behalf of
the respondent No.1-PPIPL would submit that there is a distinction
between the decision of the CoC and the procedure adopted by the RP
and the CoC to arrive at that decision. He submitted that though a final
decision of the CoC cannot be a matter of challenge on the ground that
the ‘commercial wisdom’ of the CoC should not be interfered with, yet
if there is a material irregularity in the procedure adopted by the RP, an
appeal under Section 61(3) of the IBC would be tenable. He submitted
that the RP acted with undue haste in the present matter. Learned counsel
submitted that in the proceedings of the meeting of the CoC, held on 11-
12th February, 2020, the Director of PPIPL, had sought one or two days’
time to submit its revised offer. He submitted that, however, the said
time was not granted. He further submitted that the revised offer was
submitted within two days and it was the duty of the RP to present its
revised offer before the CoC. Having not done that and having hastily
approved the plan of Ngaitlang Dhar, the NCLAT has rightly interfered
with the decision of the CoC. In this respect, he
relies on the judgment
of this Court in the case of Pratap Technocrats (P) Ltd. and others v.
Monitoring Committee of Reliance Infratel Limited and another1.
18. Shri Sinha further submitted that when the NCLT itself had
extended the period of CIRP by another 90 days beyond 180 days vide
order dated 26th February, 2020, there was no reason for the RP to have
hastily accepted the bid of Ngaitlang Dhar.
19. Learned counsel appearing on behalf of the respondents –
Banks (the financial creditors) also support the arguments of the learned
counsel appearing on behalf of Ngaitlang Dhar. They submit that the
Banks have received the entire payment that was owed to them. It is
further submitted that the email dated 14th February, 2020 sent by PPIPL
was also endorsed to the Allahabad Bank as well as the Corporation
Bank. It is submitted that both the Banks had refused to consider the
said offer inasmuch as such an offer was not valid in law.
20. The facts are not in dispute in the present matter.
1 2021 SCC OnLine SC 569
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21. Vide order dated 28th August, 2019, the application filed by
Allahabad Bank under Section 7 of the IBC for initiation of CIRP in
respect of the Corporate Debtor came to be allowed. Vide the said
order dated 28th August, 2019, Mr. Amit Pareek came to be appointed
as the Interim RP.
22. The interim RP, in compliance with Section 15 of the IBC,
made public announcement calling for claims from creditors of the
Corporate Debtor. Upon receipt of claims from the creditors, the CoC
came to be formed on 17th September, 2019. Thereafter, in the first
meeting of the CoC, held on 25th September, 2019, the Interim RP came
to be appointed as the RP. Thereafter, the RP invited EOI from the
prospective Resolution Applicants. Four EOIs came to be received from
(a) PPIPL & others; (b) Mr. Ngaitlang Dhar; (c) Mr. Abhishek Agarwal;
and (d) Mr. Ashish Jaisasaria & others. The provisional list of Resolution
Applicants came to be published and objections to the provisional list
were invited by 25th December, 2019. Since no objection in respect of
any of the prospective Resolution Applicants was received, a final list of
prospective Resolution Applicants was placed before the CoC for
evaluation. Thereafter, all the Resolution Applicants were invited to submit
their respective Resolution Plans by 24th January, 2020. In response to
that, four Resolution Plans were received from the four prospective
Resolution Applicants.
23. The 5th meeting of the CoC was held on 11th
February, 2020.
The minutes of the said meeting, particularly Agenda No.6, would reveal
that the RP informed the CoC that there were numerous anomalies and
deficiencies observed in the Resolution Plan of PPIPL and the same
was intimated to the Resolution Applicant through email dated 30th January,
2020 with a request to rectify/correct the same and submit the same by
1st February, 2020. However, PPIPL had failed to do so within the
stipulated period. It would further reveal that an email dated 1st February,
2020, was received from PPIPL with a request to grant time for
submission of rectified Resolution Plan by 3rd February, 2020. Accordingly,
the rectified Resolution Plan came to be filed by PPIPL on 3rd February,
2020. In the said meeting, the CoC evaluated the Resolution Plans of all
the four prospective Resolution Applicants. Paragraph 5 of the
consideration of the proposed Resolution Plan of PPIPL reads thus:
“5. The CoC requested PRA to improve their bid amount the
PRA refused to do so unless individual score of all disclosed further
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for increase of the bid amount he has to discuss with BOD of the
applicant”
24. It would further reveal that the CoC continued the second
round of negotiation after a lunch break. It will be relevant to refer to the
following excerpt of the minutes of the meeting of the CoC dated 11th
February, 2020:
“2. The CoC decided to invite Panna Pragati Infrastructure Pvt.
Ltd. for further negotiation. The RP informed that in first round of
negotiation the PRA has not revised their bid amount and informed
the CoC about the brief details of plan. The PRA also want to
know about the basis of score, the RP & CoC informed at this
mature stage of CIRP this is not the right time and place to discuss
about the evaluation and also informed that the evaluation has
been done as per the RFRP, IM & evaluation matrix which has
been circulated to all the PRA in due time.
3. The CoC & RP informed the PRA about the anomalies &
deficiency in the rectified Resolution Plan submitted by them still
persist despite of given them opportunity earlier after the
submission of original resolution plan for the rectification. The
PRA requested to allow some more time for the rectification and
submit revise plan. The casual approach of PRA noted.
4.  The CoC requested to improve the bid amount to the PRA, the
PRA states that at this stage we will not increase the bid amount”
25. The minutes of the 5th meeting of the CoC would further reveal
that the CoC
thereafter invited Ngaitlang Dhar for negotiation of the bid
and requested him to enhance the bid amount. Ngaitlang Dhar agreed to
enhance the bid amount from Rs.63 crore to Rs.64 crore. Thereafter
again, the representative of PPIPL returned back and requested to adjourn
the meeting for a few days. The said request was specifically rejected
by the CoC informing the representative of PPIPL that they were bound
to follow the IBC timeline and wanted to conclude the matter by next
day. The said 5th meeting of the CoC was adjourned to next day and
was held on 12th February, 2020. The minutes of the said meeting would
further reveal that the representative of PPIPL had informed the CoC/
RP that the Directors of their Company will not be available for the
meeting to be held on 12th February, 2020 and the meeting should be
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deferred by one or two days. The minutes of the meeting would further
reveal that all the prospective Resolution Applicants present in the meeting
sought clarification from the CoC members and the RP about the status
of Resolution Applicant, who was absent in the meeting, as to whether it
would be allowed to participate in the further bidding process or not.
The CoC members specifically replied that since they were at the neck
of the timeline (i.e. 180 days were to get over on 24th February, 2020), it
was decided to exclude the respondent No.1-PPIPL, who was not present
in the said meeting. The proceedings commenced after lunch break,
wherein only two prospective Resolution Applicants, i.e., Ngaitlang Dhar
and Mr. Abhishek Agarwal were present. Thereafter, the CoC adopted
Swiss Challenge open bidding method. In the said bidding process, both
prospective Resolution Applicants present increased their offer. In the
said open bidding process between the two prospective Resolution
Applicants present, Ngaitlang Dhar was found to be the highest bidder/
prospective Resolution Applicant having offered the bid of an upfront
amount of Rs.64.30 crore plus CIRP costs. The said Resolution Plan of
Ngaitlang Dhar was approved unanimously by Allahabad Bank having
68.34% voting rights and the Corporation Bank having 31.66% voting
rights.
26. It is thus clear that the respondent No.1-PPIPL was very
much aware that the CoC has decided to finalise the proceedings by
12th
February, 2020. It is also clear that though PPIPL was first called
upon by the CoC to enhance the bid amount, it had specifically rejected
the same. It insisted on disclosing the basis of score. In the proceedings
of the 5th meeting of the CoC dated 11th February, 2020, post lunch,
though Ngaitlang Dhar had enhanced his bid from Rs.63 crore to Rs.64
crore, the representative of PPIPL subsequently came and requested
for adjourning the meeting for few days. The said request was specifically
rejected by the CoC by informing the representative of PPIPL that it
had to adhere to the IBC timeline and would have to conclude the matter
by next day. On the next day, i.e., 12th February, 2020, when the adjourned
proceedings of the CoC were held, the respondent No.1-PPIPL had
sent an email, stating therein that the Directors of its Company will not
be available for the said meeting and requested for deferring the meeting
by a day or two. On the insistence of all the prospective Resolution
Applicants present, the CoC clarified that since the timeline was coming
to an end, it had decided to exclude the prospective Resolution Applicants
who were not present in the said meeting. In the said meeting, Ngaitlang
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Dhar came to be declared as the highest bidder after he improved his
bid in the open bidding held between him and Mr. Abhishek Agarwal.
27. It could thus be seen that the RP as well as the CoC had acted
in a totally transparent manner. An equal opportunity was accorded to
all the prospective Resolution Applicants. However, the respondent No.1-
PPIPL, without improving his bid amount, went on insisting for more
time, which request was specifically rejected by the CoC.
28. Shri Abhijeet Sinha, learned counsel, fairly concedes that though
the final decision of the CoC would not be challenged on the ground that
the ‘commercial wisdom’ of the CoC should not be interfered with, it is
only the process of decision making, which can be challenged if there is
any material irregularity in the said proceedings.
29. As already discussed hereinabove, we find that the procedure
adopted by the RP as well as the CoC was fair, transparent and equitable.
The CoC was facing the timeline, which was to end on 24th February,
2020, before which it had to finalise its decision. In these circumstances,
it cannot be said that the decision of the CoC, to not grant any further
time to PPIPL for submission of its revised bid and to finalise the
Resolution Plan on 12th February, 2020 itself, can be said to be falling in
the category of the term ‘material irregularity’.
30. We have extracted the minutes of the proceedings of the 5th
meeting of the
CoC in extenso. It could be seen that the CoC, after due
deliberations, evaluated all the proposed Resolution Plans submitted by
all the prospective Resolution Applicants and after giving sufficient
opportunity to all the prospective Resolution Applicants, arrived at a
considerate decision of accepting the Resolution Plan of the appellant-
Ngaitlang Dhar in its meeting held on 11-12th February, 2020.
31. It is trite law that ‘commercial wisdom’ of the CoC has been
given paramount status without any judicial intervention, for ensuring
completion of the processes within the timelines prescribed by the IBC.
It has been consistently held that it is not open to the Adjudicating
Authority (the NCLT) or the Appellate Authority (the NCLAT) to take
into consideration any other factor other than the one specified in Section
30(2) or Section 61(3) of the IBC. It has been held that the opinion
expressed by the CoC after due deliberations in the meetings through
voting, as per voting shares, is the collective business decision and that
the decision of the CoC’s ‘commercial wisdom’ is non-justiciable, except
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on limited grounds as are available for challenge under Section 30(2) or
Section 61(3) of the IBC. This position of law has been consistently
reiterated in a catena of judgments of this Court, including:
(i)
K. Sashidhar v. Indian Overseas Bank and Others2
(ii)
Committee of Creditors of Essar Steel India Limited
Through Authorized Signatory v. Satish Kumar Gupta
and Others3,
(iii)
Maharashtra Seamless Limited v. Padmanabhan
Venkatesh and others4,
(iv)
Kalpraj Dharamshi and Another v. Kotak Investment
Advisors Limited and Another5.
(v)
Ghanashyam Mishra and Sons Private Limited
Through the Authorized Signatoryv. Edelweiss Asset
Reconstruction Company Limited Through the Director
& Ors.6
32. No doubt that, under Section 61(3)(ii) of the IBC, an appeal
would be tenable if there has been material irregularity in exercise of the
powers by the RP during the corporate insolvency resolution period.
However, as discussed hereinabove, we do not find any material
irregularity.
33. We may gainfully refer to the following observations of this
Court in the case of Keshardeo Chamria v. Radha Kissen Chamria
and others7 while considering the scope of the words ‘material
irregularity’, as are found in Section 115 of the Code of Civil Procedure,
1908:
“Reference may also be made to the observations of Bose, J. in
his order of reference in Narayan Sonaji v. Sheshrao
Vithoba [AIR 1948 Nag 258] wherein it was said that the words
“illegally” and “material irregularity” do not
cover either errors of
fact or law. They do not refer to the decision arrived at but to the
2 (2019) 12 SCC 150
3 (2020) 8 SCC 531
4 (2020) 11 SCC 467
5 (2021) SCC OnLine SC 204
6 (2021) 9 SCC 657
7 (1953) 4 SCR 136
NGAITLANG DHAR v. PANNA PRAGATI INFRASTRUCTURE
PRIVATE LIMITED & ORS. [B. R. GAVAI, J. ]
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SUPREME COURT REPORTS
[2021] 9 S.C.R.
manner in which it is reached. The errors contemplated relate to
material defects of procedure and not to errors of either law or
fact after the formalities which the law prescribes have been
complied with.”
34. In the present case, leave apart, there being any ‘material
irregularity’, there has been no ‘irregularity’ at all in the process adopted
by the RP as well as the CoC. On the contrary, if the CoC would have
permitted the PPIPL to participate in the process, despite it assuring the
other three prospective Resolution Applicants in its meeting held on 11-
12th February, 2020, that the absentee prospective Resolution Applicant
(PPIPL) would be excluded from participation, it could have been said
to be an irregularity in the procedure followed.
35. Insofar as the contention of the learned counsel, Shri Abhijeet
Sinha, that the NCLT had already extended the CIRP period by 90 days
vide order dated 26th February, 2020 and therefore, there was no necessity
to hastily approve the Resolution Plan of Ngaitlang Dhar on 12th February,
2020, is concerned, we find the same to be without substance. It will be
relevant to mention that the period of 180 days was to expire on 24th
February, 2020, and therefore, in the meeting dated 12th February, 2020
itself, the CoC after resolving to declare Ngaitlang Dhar as H-1 bidder
had resolved to authorise the RP to seek an extension of CIRP period
before the NCLT.
36. It will be
relevant to refer to paragraph 2 of the order dated
26th February, 2020 passed by the NCLT, which reads thus:
“2. It is the submission of the RP that the CoC in its 5th meeting
held on 11.02.2020 concluded on 12.02.2020 declared one Mr. N.
Dhar as highest bidder and the said decision of theCoC is under
consideration for approval with the higher authority of the CoC
and, therefore, prayed for further extension of CIRP period to 90
days with effect from 25.02.2020”
37. It could thus be seen that the contention in that regard is also
without substance. It is further to be noted that, as has been consistently
held by this Court in catena of judgments, referred to hereinabove, the
dominant purpose of the IBC is revival of the Corporate Debtor and
making it an on-going concern. In the present case, the said purpose is
already achieved, inasmuch as all the dues of the financial creditors, i.e.,
the Allahabad Bank and the Corporation bank, have already been paid,
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and the Corporate Debtor, in respect of which CIRP was initiated, is
now an on-going concern.
38. We are, therefore, of the considered view that the NCLAT
has grossly erred in interfering with the decision of the CoC, which was
duly approved by the NCLT. The appeals are, therefore, allowed. The
impugned judgment and order passed by the NCLAT, dated 19th October,
2020 is quashed and set aside. There shall be no order as to costs. All
pending applications shall stand disposed of.
NGAITLANG DHAR v. PANNA PRAGATI INFRASTRUCTURE
PRIVATE LIMITED & ORS. [B. R. GAVAI, J. ]
Divya Pandey
Appeals allowed.