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Judgment
ORDER
19.10.2023: Heard Counsel for the parties.
This Appeal has been filed against the order dated 16.05.2023 passed by the Adjudicating Authority by which order IA No.2189 of 2023 filed by the Homebuyers seeking a direction to the Resolution Professional to convene a meeting of the CoC to comply with the provision of Regulation 39(3)(d) of the CIRP has been rejected.
When this Appeal was taken on 28.08.2023, following order was passed by this Tribunal:-
“28.08.2023: Heard Learned Counsel for the Appellant.
2.This Appeal has been filed against the Order dated 16.05.2023 passed by the Adjudicating Authority by which I.A. No. 2189 of 2023 filed by the Applicant has been rejected.
3.Appellant’s case is that 09th August, 2022 was the last date of the Corporate Insolvency Resolution Process (CIRP in short) and the Plan which was submitted in the CIRP was to be voted and voting took place from 03.08.2022 to 09.08.2022 and on 09th August, 2022 plan was not approved with 54% of the Committee of Creditors (CoC in short) vote. It is submitted that as per Regulation 39 of CIRP Regulation, 2016, the plan which received the maximum vote was to be again revoted and for that purpose, the Application was filed on 23rd August, 2022 which remain pending and could be decided only on 16th May, 2023.
4.Learned Counsel for the RP submits that since the CIRP was closing on 09th August, 2022, no meeting for revoting of the plan could be convened.
5.Regulation 39, Sub-Regulation (3), 2nd Proviso provides “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.”
6.In view of the above, the plan which receives the maximum votes have to be voted again.
7.In view of the facts of the present case, we are of the view that Let Resolution Professional convene a meeting of CoC to put the plan which received the highest vote for revoting as per Regulation 39. The RP shall file an affidavit indicating the result of the revoting within three weeks. In the meantime, the Adjudicating Authority shall not proceed with the Liquidation Application.
List this Appeal on 18th September, 2023.”
In pursuance of the order dated 28.08.2023, the meeting of the CoC was convened to put the plan which received the highest vote for re-voting. An Affidavit has been filed by the Resolution Professional dated 18.10.2023 by which in paragraphs 8, 9 and 10, following has been stated:-
“8.That the e-voting of the 22nd CoC meeting commenced from 04.09.2023 at 02:00 P.M. and concluded on 16.10.2023 at 08:00 PM. post two extensions in the voting period whereby, the Resolution Plan was approved by the members of CoC by 99.84% voting share in favour. Copy of e-voting results of the 22nd CoC meeting convened by the deponent on 01.08.2023 is annexed herewith and marked as ANNEXURE A-4.
9.That, meanwhile during the hearing held on 18.09.2023, the Ld. Counsel for the Resolution Professional prayed to allow further time to file an affidavit as directed on 08.08.2023 due to the reason that RP had received the request from the financial creditor for extending the time for voting. Accordingly, the Hon'ble NCLAT allowed to file the final outcome of the e-voting post its conclusion, vide its order dated 18.09.2023. Copy of Order dated 18.09.2023 passed by this Hon'ble Appellate Tribunal is annexed herewith and marked as ANNEXURE A-5.
10.That in the light of the above facts stated, it is most humbly submitted that the deponent shall act in accordance with the resolution passed by the members of CoC in 22nd meeting of CoC dated 01.08.2023 and proceed with filing of an Application under Section 30(6) read with Section 31 of the Code read with Regulations made thereunder as the Resolution Plan which was put for revoting has garnered more than the requisite voting share of 66% in favour of the Resolution Plan.”
We have already extended the time for filing the Affidavit by our order dated 18.09.2023. Now the CoC having approved the Resolution Plan with voting share of 99.84%, Resolution Professional seeks liberty to file an application before the Adjudicating Authority for approval of the Resolution Plan.
Considering the facts of the present case, the highest Resolution Plan having now received the majority of votes, we are of the view that the Resolution Professional may file an application before the Adjudicating Authority for approval of the plan which may be done within three weeks from today.
In view of the subsequent events, as noticed above, nothing survives to be decided in this Appeal. With the direction aforesaid, the appeal is disposed of.