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Judgment
O R D E R
Justice M. Venugopal, Member (Judicial):
According to the Learned Senior Counsel for the Petitioner / Appellant / Resolution Applicant, that the `Petitioner / Appellant / Resolution Applicant’ was not made a party to IA No. 132 of 2020 in CP (IB) No. 228 / BB / 2018, before the `Adjudicating Authority’ (`National Company Law Tribunal’, Bengaluru Bench, Bengaluru), therefore, the `Petitioner / Appellant / Resolution Applicant’ could not represent in IA No. 132 of 2020. In fact, the `Petitioner / Appellant / Resolution Applicant’ is an `Aggrieved Person’, by virtue of the `impugned order’ dated 24.06.2022, passed by the `Adjudicating Authority’ (`National Company Law Tribunal’, New Bengaluru Bench, Bengaluru) in CP (IB) No. 228 / BB / 2018.
The grievance of the Petitioner / Appellant / Resolution Applicant is that the `Adjudicating Authority’ was misled by the `Resolution Professional’ and the `Resolution Plan’, submitted by the `Resolution Applicant’ on 25.02.2020 was not placed before the `Committee of Creditors’ or the `Tribunal’. Furthermore, from the `impugned order’ dated 24.06.2022 and the `Minutes of the Meeting’ dated 18.02.2020, the `Committee of Creditors’, had already accepted the `Resolution Plan’ furnished by M/s. Starteck Finance Limited. Added further, the `Resolution Plan’ was not even placed before the `Committee of Creditors’, for its consideration. As such, the `Petitioner / Appellant / Resolution Applicant’ is `Aggrieved’, against the `impugned order’ dated 24.06.2022, passed by the `Adjudicating Authority’ and in view of the fact that the `Petitioner / Appellant / Resolution Applicant’ was not made a party in IA No.132 of 2020 in CP (IB) No.228 / BB/ 2018, he was not in a position to represent before the `Adjudicating Authority’.
It is projected on the side of the `Petitioner / Appellant / Resolution Applicant’ that the Respondents had not once intimated the `Appellant that its `Revised Bid’ was `rejected’ or `approved’ or `could not considered’. Also that, the `Petitioner / Appellant / Resolution Applicant’ was under the impression that the `Appellant’ and its `Revised Plan’ was still under consideration. Further, even after receiving the revised bid, the `1st Respondent’ had not provided any reason for not considering and placing the `revised bid’, before the `2nd Respondent’ or before the `Adjudicating Authority’ (`Tribunal’).
The Learned Counsel for the `Petitioner / Appellant / Resolution Applicant’, points out that the `Petitioner / Appellant / Resolution Applicant’ was not aware that the `Respondent Nos. 1 and 2’, had declared the `3rd Respondent’ as the `H1 Resolution Applicant’, on the basis of `Meeting dated 18.02.2020’, without giving any `cogent reason’, as to why the `Resolution Plan’ submitted by `Bipin Textile Processing Industries Private Ltd.’ was not considered.
The Learned Counsel for the `Petitioner / Appellant / Resolution Applicant’, refers to the Order of the Hon’ble High Court dated 27.02.2020, wherein by the `consent of the Parties’, quashed the `Final Order’ dated 03.01.2020 in W.P. No. 50370 / 2019 and had restored the `Writ Petition’, to its file for reconsideration of the said `Petition’ and had kept all the questions open to be decided on merits.
The Learned Counsel for the `Petitioner / Appellant / Resolution Applicant’, adverts to the decision of the Hon’ble Supreme Court of India in VAREED JACOB V. SOSAMMA GEEVARGHESE AND OTHERS, reported in 2004, 6 SCC 378, wherein it is held that ``interlocutory orders which have been passed before the dismissal would stand revived along with the suit when the dismissal is set aside and the suit is restored unless the court expressly or by implication excludes the operation of interlocutory orders passed during the period between the dismissal of the suit and the restoration.’’
In view of the above, the Learned Counsel for the `Petitioner / Appellant / Resolution Applicant’ prays that IA No. 771 of 2022 in Comp. App (AT) (CH) (INS) No.341 of 2022, filed by the `Petitioner’ seeking leave of this `Tribunal’, to prefer the instant Comp. App (AT) (CH) (INS) No.341 of 2022, may be allowed, in the interest of justice, because of the fact that the `Petitioner / Appellant / Resolution Applicant’, is an `Aggrieved Person’, over the action of the `1st Respondent’, in not placing the `Revised Bid’ before the `Committee of Creditors’ and the `Approval’ of the `Plan’ of the `3rd Respondent’ was done, without `considering’ / `approving’ / `rejecting’ the `Revised Bid’ of the `Petitioner / Appellant / Resolution Applicant’.
Per contra, the Learned Senior Counsel for the `Petitioner / Appellant / Resolution Applicant’ submits that the `Petitioner / Appellant / Resolution Applicant’ was not made a party to IA No. 132 of 2020 in CP (IB) No. 228 / BB / 2018, before the `Adjudicating Authority’ and further that, as per Section 30 of the I & B Code, 2016, the `1st Respondent’ (like any `Resolution Professional’) was duty bound to submit the `Resolution Plan’, approved by the `Committee of Creditors’ to the `Adjudicating Authority’. In fact, the `1st Respondent’ filed IA No. 132 of 2020 in CP (IB) No. 228 / BB / 2018 on 02.03.2020, praying for an `Order of Approval’, being passed by the `Adjudicating Authority’ on the `Successful Resolution Plan’, submitted by the `3rd Respondent’.
It is represented on behalf of the Respondent Nos. 1 and 2, before this `Tribunal’ that, an email dated 25.02.2020 addressed by the `Petitioner / Appellant / Resolution Applicant’, to the `1st Respondent’ merely contained the `Revised Financial Offer’ and not the `Resolution Plan’, as falsely claimed by the `Petitioner / Appellant / Resolution Applicant’ in its `Application’.
The Learned Senior Counsel for the Respondent Nos. 1 and 2, refers to the `Minutes of the Meeting’ of the `Committee of Creditors’ of the Bhuwalka Steel Industries Limited (page 118 Annexure-G of the `Appeal Paper Book’ in Diary No. 2810 dated 14.10.2022 at Spl Pg: 120, wherein at paragraph (iii), it is observed as under:
iii.``Further, it was clarified to the Resolution Applicant that neither the Committee of Creditors or the Resolution Professional requested the Resolution Applicant to dilute any terms including payment to the operational creditors. However, the Committee, informed the Resolution Applicant, that conditional payment to the operational creditors are not acceptable and accordingly they are requested to remove the conditions for payment of operational creditors or alternatively the Committee will not consider the conditional payment to the operational creditors. However, it was also noted that the Resolution Applicant himself voluntarily removed the conditions for payment to the operational creditors and reduced the payment to Rs. 1 Crore instead of Rs.30 Crores.’’
Besides the above, in the `Minutes of the Meeting’ of the `Committee of Creditors of `M/s. Bhuwalka Steel Industries Limited’ dated 18.02.2020 at Page 123 of the `Appeal Paper Book’ of the `Petitioner / Appellant / Resolution Applicant’, it is clearly mentioned as under:
``After the round 8, the Resolution Applicant i.e. Bipin Textile Processing Industries Private Limited, requested the Committee to grant time till the following day i.e., February 19, 2020 for submission of their revised bid. The representatives of Bipin Textile Processing Industries Private Limited was called again for further negotiations but by that time they had left the meeting premises. Accordingly, the Committee of Creditors directed the Resolution Professional to send an email to Bipin Textile Processing Industries Private Limited informing them that they must submit their revised bids latest by 10 pm the same day i.e. February 18, 2020. Further, it was also directed to the Resolution Professional to communicate to Starteck Finance Limited that they will be given a final chance to revise their Plan till 12 midnight on February 18, 2020.
The Resolution Professional further informed that an email was received from Bipin Textile Processing Industries Private Limited at 10.01 pm on February 18, 2020, informing that they wanted some further time for submission of their revised bid.
However there was no bid received till the finalisation of minutes from Bipin Textile Processing Industries Private Limited.
Since, no revised bids were received from Bipin Textile Processing Industries Private Limited, Starteck Finance Limited was finally declared as the H1 Resolution Applicant.
Further, the Resolution Professional also confirmed to the Committee of Creditors that the total value of the H1 bidder is higher than the average liquidation value proposed by the two valuers.’’
Also, in the `Minutes of the Meeting’ of the `Committee of Creditors’ of M/s. Bhuwalka Steel Industries Limited at Page 118 of the `Appeal Paper Book’; Spl Pg: 125, it is observed as under:
``Accordingly, the Resolution Professional proposed the following Resolution for the Committee of Creditors for their voting:
``RESOLVED THAT the Resolution Plan submitted by the H1 Bidder i.e., Starteck Finance Limited be and is hereby approved by the Committee of Creditors.’’
After deliberation, the Committee of Creditors requested for initiating an E-voting along with the minutes of the Meeting and accordingly the decision shall be conveyed.
The Resolution Professional further informed the Committee that the final Forensic Auditor Report was received and that it will be taken up with the Hon’ble National Company Law Tribunal for their suitable directions.
5. VOTE OF THANKS:
There being no other business to transact, the Meeting was terminated with a Vote of Thanks to the Chair.’’
The submission of the Learned Counsel for the Respondent Nos. 1 and 2 is that, the present IA No. 771 of 2022 in Comp. App (AT) (CH) (INS) No. 341 of 2022, filed by the `Petitioner / Appellant / Resolution Applicant’, lacks `Bonafide’ and is `not maintainable’, since the `Petitioner / Appellant / Resolution Applicant’, is `Guilty of Material Misrepresentation’ and `Suppression of Material Facts’ and in short, IA No. 771 of 2022 in the instant `Appeal’, filed by the `Petitioner / Appellant / Resolution Applicant’, is to thwart the implementation of the `Resolution Plan’, submitted by the 3rd Respondent.
The Learned Counsel for the 3rd Respondent submits that the `Petitioner / Appellant / Resolution Applicant’ has not set out a single reason as to why it shows not to raise a challenge before the `Adjudicating Authority’ and further, a `Resolution Applicant’ has `no Locus’ to challenge the `Successful Resolution Plan’. In short, IA No. 771 of 2022, projected by the `Petitioner / Appellant / Resolution Applicant’, is a `Malafide one’ and a belated endeavour is made on the side of the `Petitioner / Appellant / Resolution Applicant’ to stall the proceedings and hence the IA No. 771 of 2022 in Comp. App (AT) (CH) (INS) No. 341 of 2022, is liable to be dismissed, to secure `Interest of Justice’.
At this juncture, this `Tribunal’ aptly points out that the `object of seeking Leave’, is to prevent an `unreasonable plea’ to be taken by a `Stakeholder’ / `Litigant’, who has no `Tangible’ / `Substantial Defence’, in regard to the implementation of the `Resolution Plan’.
On a careful consideration of the respective contentions and this `Tribunal’, on going through, the contents of the `Minutes of the Meeting’ of the `Committee of Creditors’ (M/s. Bhuwalka Steel Industries Limited dated 18.02.2020), is of the considered view that the `Resolution Plan’ furnished by the `Petitioner / Appellant / Resolution Applicant’ was given necessary consideration during numerous `Committee of Creditors’ Meetings and that, the Respondent Nos. 1 and 2 gave adequate opportunity to the `Petitioner / Appellant / Resolution Applicant’, to present its `Proposal’ to the `Committee’ and after elaborate negotiations, the `Committee’ had considered the `Resolution Plan’, submitted by the `Successful Resolution Applicant’ Viz. `Starteck Finance Limited’, as a `viable one’.
Viewed in the above perspective, for the foregoing reasons and discussions, in the teeth of `Lack of Bonafide’, on the part of the `Petitioner / Appellant’, the leave sought for by it, in IA No. 771 of 2022 in Comp. App (AT) (CH) (INS) No. 341 of 2022, in preferring the instant `Appeal’ sans merits.
In fine, IA No. 771 of 2022 is dismissed. No costs.
Consequent, to the dismissal of IA No. 771 of 2022 in Comp. App (AT) (CH) (INS) No. 341 of 2022, the Comp. App (AT) (CH) (INS) No. 341 of 2022, filed by the `Petitioner / Appellant / Resolution Applicant’ is rejected.
The connected pending Interlocutory Applications are Closed.