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Judgment
O R D E R
24.03.2022: Heard Learned Counsel for the Appellant and Respondent.
This Appeal has been filed by the Resolution Professional against the Order dated 02.02.2022 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench, Court-II) in I.A./554/2022. In pursuance of invitation of Expression of Interest, the Resolution Professional received 10 Expression of Interest (EoI in short). The Respondent No. 1 was one of the Applicant who was not treated to be eligible by the Resolution Professional hence under the legal advice, the matter was placed before the CoC for consideration of the eligibility of the Respondent No. 1. The CoC passed a resolution in Agenda Item 12 and in the 06th Meeting of the CoC held on January, 2022 following resolution was passed:
“Resolved that the eligibility of Mr. Sumit Khanna as PRA be and is hereby considered”
After the aforesaid resolution of the CoC, Resolution Professional filed an I.A. making a prayer for permitting the CoC of the Corporate Debtor to consider ‘EoI’ of the Respondent No. 1. The said Application was considered and was rejected by the Adjudicating Authority by the Impugned Order.
Learned Counsel for the Appellant contends that as per the Resolution passed by CoC, the Resolution was subject to approval of the Adjudicating Authority and Adjudicating Authority has not approved the Resolution hence there is difficulty in proceeding with the process treating Respondent No. 1 as eligible.
Mr. Sumesh Dhawan, Advocate for the Respondent No. 1 submits that CoC has clearly approved the eligibility of the Respondent No. 1 and the Resolution was not subject to any further approval of the Adjudicating Authority.
We have considered the submissions of the parties and perused the record. We may notice Agenda Item No. 12 of the 06th Meeting of CoC which is to the following effect:
“Item No. 12
To discuss and place before the CoC the EOI submitted by Sh. Sumit Kumar Khanna and the issues thereof, along-with the relevant documents and legal opinions in this regard.
It was apprised to the committee that One of the PRA being individual Mr. Sumit Khanna has submitted the Expression of Interest (EOI), he has completed the projects (as required for eligibility) through its construction Partner Steiner India Limited. He has submitted the letter of support from Steiner India. The letter of support of Stainer India along with the completed projects as attached as Annexure 3 with notes to the agenda sent with the notice of this meeting.
He has also submitted the legal opinion from a Law Firm namely Amarchand Mangaldas in support of his position and the same was circulated with notice of this meeting as Annexure 4.
Further, RP has consulted his legal advisor on this matter and the legal advisor has opined that on the basis of eligibility criteria set out by the CoC, the said PRA is not eligible to submit a resolution plan, the RP’s legal advisor has further opined that, in the interest of justice, the matter ought to be put before the CoC.
The Authorised Representative of Home Buyer suggested that this matter should be put for voting by CoC. On this RP accepted the suggestions of Authorised Representative and agreed for putting this agenda item for voting subject to the approval of the Hon’ble NCLT, if situation warrants. The CoC considered the item and put the following resolution for voting:
“RESOLVED THAT the eligibility of Mr. Sumit Khanna as PRA be and is hereby considered.””
The above resolution passed by the CoC can not be said to be resolution of the CoC which was subject to the approval of the Adjudicating Authority. It is true that although Authorised Representative suggested for putting agenda for subject to NCLT but the Resolution which was passed does not mention any requirement of approval by the Adjudicating Authority hence we had to read the resolution as approving the eligibility of the Respondent No. 1 by the CoC. In view of the above, Adjudicating Authority did not commit any error in rejecting the prayer of the RP and order of the Adjudicating Authority rejecting the application was after noticing the actual resolution which was passed by the CoC and has been reproduced in the Order of the Adjudicating Authority.
We thus are of the view that there is no error committed by the Adjudicating Authority. Adjudicating Authority has rightly read the Resolution of COC as approving the eligibility of the Respondent No. 1. With these observations, the Appeal is dismissed.