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Judgment
This application is filed U/s 60(5) of IBC by the applicant for directing the CoC not to consider any Resolution Plan other than the plan submitted by the applicant herein.
The reason for seeking such a direction is that the Resolution Plan as submitted by them was considered by the CoC and then the applicant was declared the H1 Bidder.
We heard Learned counsel for the Applicant, Learned counsel for the RP and Learned senior counsel for the CoC.
Short question for our consideration in this application is whether the RP/CoC can proceed to consider other Resolution Plans, though the Applicant is declared to be H1 bidder and whether such act of the RP/CoC is in contravention of provisions of Regulation 39 of IBBI (Insolvency Resolution Process) for Corporate Persons Regulations, 2016. We have also to record our findings on whether the amended provisions of sub-Regulation (3) of Regulation 39 is to be read prospectively or retrospectively?
Before recording our finding whether the amended provision under Regulation 39(3) is to be read retrospectively or prospectively, we note at the outset that one of the objects of the IBC is maximization of the value of the assets of the Corporate Debtor and resolution of insolvency in time bound manner.
The CIRP being competitive process for all prospective resolution applicants, the RP and CoC are duty bound to consider all plans they received till last date.
It is not in dispute that the RP/CoC in this case have received the Resolution plans of some of the applicants during the CIRP process. However, the applicant was declared H1 bidder. But the CoC have not yet approved their Resolution Plan.
Whether the amended provision of Regulation 39(3) IBC is to be read retrospectively or prospectively is the point now concluded by Hon' ble Supreme Court in case of M/s Jaypee Kensington Boulevard Apartments Welfare Association & Others Vs. NBCC (India) Limited & Others in Civil Appeal No.3395 of 2020. It is held that,
"83.1.Moreover, as noticed, the legislature itself has made the position clear by way of a later amendment with effect from 07.08.2020, by specifically making stipulations for simultaneous voting over more than one resolution plan by the CoC, particularly with amendment of sub-regulation (3) of Regulation 39 of CIRP Regulations and insertion of sub-regulations (3A) and (3B) thereto. Such an amendment could only be visualised as clarificatory in nature; and, in any case, even before amendment, there had not been any prohibition in putting two or more conforming resolution plans to vote simultaneously."
In view of the above, we hold that the application is not maintainable. The CoC in this case are free to consider all the Resolution Plans submitted for their consideration by the RP.
The Application bearing IA No. 606/2020 is not maintainable and hence stands rejected and disposed of.
In view of the above, Application bearing IA No. 697/2020, filed for impleading by another proposed Resolution Applicant in IA No. 606/2020 also stands disposed.
No order as to costs.