Vijay Kumar Pandey vs Panacealife Healthzone Pvt. Ltd. & Ors.

24.03.2022: Heard Learned Counsel for the Appellant, Learned Counsel for the Resolution Professional and Learned Counsel for the Committee of Creditors.

This Appeal has been filed against the Order dated 14.12.2021 passed by the Adjudicating Authority (National Company Law Tribunal, Allahabad Bench) in I.A. (IB) No. 98/ALD/2021. This application was filed by the Resolution Professional for approval of the Resolution Plan which has been allowed and the Resolution plan in respect to Corporate Debtor has been approved.

Learned Counsel for the Appellant challenging the Order contends that the Appellant was one of the ex-directors of the Corporate Debtor and was running the Hospital. Though the Hospital was permitted to be run by the Indian Medical Association under the directions of the Government to one Dr. Mall who had run the Hospital during the Covid 19 period and subsequently the said Dr. Mall submitted the Resolution Plan which has been approved. It is submitted that Appellant who also wanted to submit a Resolution Plan was never permitted to submit a Resolution Plan and his proposed Resolution Plan was not even considered. He submits that the Resolution Professional has not performed its duties as entrusted under the provisions of Section 25 of the Code since he has not taken possession of the documents and the assets of the Corporate Debtor and at no point of time possession was taken hence there was material irregularity in conduct of proceeding of Resolution Professional which is a ground for disapproving the Resolution Plan.

Mr. Abhijeet Sinha, Learned Counsel for the Resolution Professional refuting the submissions of Learned Counsel for the Appellant contends that Hospital was closed before initiation of Corporate Insolvency Resolution Process (CIRP in short) and due to the Covid 19 the Government took a decision to run the closed Hospital and under the direction issued by Administration the Indian Medical Association with the help of Dr. Mall started to run the hospital during the Covid 19 Period and after initiation of CIRP the Resolution Professional was given all relevant documents and the Hospital was run under the directions of the Government. He further submits that the Appellant as an ex-director, who also participated in the Meetings of the CoC and he was requested to submit his plan and his proposal was duly considered by the CoC and deliberated and it was resolved that Appellant may submit a plan if otherwise eligible under Section 29A of the Code. It is submitted that no plan was even submitted by the Appellant and the offer which was given by the Appellant was only of Rs. 1 Crore which was too less than the plan which has now been approved. Mr. Abhijeet Sinha, Advocate submits that the Appellant has attended 04^th Meeting of the CoC although notice of all meetings was given. Mr. Abhijeet Sinha submitted that all financial claims have already been updated and included in the Memorandum.

Learned Counsel for the CoC has also supported the submissions of Learned Counsel for the Resolution Professional and submits that Appellant was not eligible to submit a plan and no plan was actually submitted. He further submits that Resolution Plan which was submitted by the Resolution Applicant was fully compliance with all the provisions of the Code and Dr. Mall was never ineligible to submit a plan and the CoC after considering all aspects of the matter has approved the plan with 100% voting share whereas the claim of the Appellant was considered and rejected by the CoC with 100% Voting Share.

We have considered the submissions of the Parties and perused the record.

The present is the case where Order of the Adjudicating Authority approving the Resolution Plan is under challenge. In so far as the claim of the Appellant regarding non-consideration of his plan is concerned, suffice it to say that the Appellant was himself present in the fourth Meeting of the CoC. In this Context, 04^th Meeting of CoC dated 15^th December, 2020 is referred where issues raised by Appellant and his proposal Application 21^st November, 2020 were considered. The minutes of the meeting in this regard are following:

Thus, the grievance of the Appellant that his plan was never considered does not appear to be correct. No formal resolution plan was submitted by the Appellant although the COC has permitted the Appellant to submit his plan provided he is eligible as per the eligibility criteria approved by the CoC. Thus, grievance of the Appellant that his offer was never considered has no merit. Appellant can not make any complaint on the aforesaid account.

The submission which has been pressed by Mr. Kalra is that Resolution Professional never took possession and control of the Hospital which is a statutory duty entrusted on him under the Code. It has been stated that Resolution Professional visited the hospital and prayed for taking over the documents but he was never handed over the relevant documents in the said regard. From the facts, which has been brought on record it does appear that the Resolution Professional after the 2^nd CoC meeting has visited the Hospital and obtained the permission of CMO and met Dr. Mall who was at that point of time running the hospital. The present is the case of running of a hospital, the Resolution Professional is not supposed to take physical possession of the hospital for running the hospital in the facts of the present case. The visiting of the Resolution Professional and all steps taken by the RP has duly been noted and considered by the CoC in 04^th Meeting and subsequent meeting which indicate that what was expected by the RP was duly performed. Advertisements, Steps pertaining to issue of Notice under Form G and other steps have duly been taken by the RP and in pursuance of which the Resolution Plan was submitted which got approval by the CoC with 100% Voting Share. It is the commercial wisdom of the CoC to take a decision as to whether Resolution Applicant is eligible to run the Corporate Debtor and whether the financial offers and other offers given by the Resolution Plan are sufficient to approve and comply the mandates given in the statutory scheme. The Adjudicating Authority in its Judgement has elaborately considered the details of the Resolution Plan/Payment Schedule in Paragraph 5 and has also recorded his satisfaction regarding all other aspects of the matter including the statutory compliance by the Resolution Plan. We do not find any error in the Order impugned of the Adjudicating Authority approving the Resolution Plan. The Commercial wisdom of CoC has to be given due regard. We are of the view that no grounds have been made out to interfere with the Impugned Order in exercise of our Appellate Jurisdiction, the Appeal is dismissed.