NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI BENCH (COURT-II)

IA. 6012/ND/2022
IN
Company Petition No. (IB)-71(ND)/2019

IN THE MATTER OF:

Edelweiss Assets Reconstruction Company Limited
… Applicant/Financial Creditor
Versus

Pawan Doot Estate Private Limited

… Respondent

AND IN THE MATTER OF IA. NO. 6012/ND/2022:

Edelweiss Assets Reconstruction Company Limited

… Applicant

VERSUS
Mr. Darshan Singh Anand
Resolution Professional of
Pawan Doot Estate Private Limited
C/o Sumedha Management Solutions Private Limited
Address at :
B-1/12, 2nd Floor,
Safdarjung Enclave
New Delhi - 110029
… Respondent

Order Delivered on: 18.01.2023

SECTION: Section 60(5) of IBC 2016

CORAM :
SH. BACHU VENKAT BALARAM DAS, HON’BLE MEMBER (J)
SH. L. N. GUPTA, HON’BLE MEMBER (T)

PRESENT:
For the Applicant : Adv. IPS Oberoi for SRA
For the Respondent : Sr. Adv. Sudhir Makkar, Adv. Aditya Vashisht
For the RP : Adv. Ruchi Goyal

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 ORDER

PER: SHRI. L. N. GUPTA, MEMBER (T)

The present IA No. 6012 of 2022 has been filed by Edelweiss Assets

Reconstruction Company Limited (hereinafter, referred to as the

“Applicant”/ “EARCL”), who is a Financial Creditor and one of the

members of the CoC of Pawan Doot Estate Pvt. Ltd. (hereinafter, referred

to as “Corporate Debtor”/ “CD”) under Section 60(5) of IBC, 2016, read

with Rule 11 of NCLT Rules, 2016 seeking the following reliefs:

“a) Defer the passing of any order in respect of IA No. 1077/2020

i.e. application for approval of resolution plan for a period of
Four weeks till a final outcome of the Settlement Proposal can
be achieved and can be informed to this Hon'ble Tribunal;

b) Pass any other and further order(s) which this Hon'ble

Tribunal deems fit and proper in the facts and circumstances
of the present case.”

2. To put succinctly, the facts of the present case are that Sh.

Darshan Singh Anand (hereinafter, referred to as “RP/Respondent”) had

filed an Application bearing No. IA-1077/ND/2020 under Section 30(6) of

IBC, 2016 for seeking approval of the Resolution plan submitted by a

consortium of Mr. Pradeep Kumar Lathar and M/s. Mehar Footwear

Private Limited [hereinafter referred to as ‘Successful Resolution

Applicants’/(SRA)]. The said Application was heard by this Adjudicating

Authority and reserved for orders on 02.12.2022.

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3. Through the present IA, the Applicant has sought deferment of

passing of orders reserved in IA-1077/ND/2020 (which is an application

for Approval of Resolution plan) by 4 weeks. It is stated by the

Applicant/EARCL that:

3.1. A “Settlement Proposal” under Section 12A of the IBC has been

received from the promoter of the Corporate Debtor, namely, Mr. Hem

Singh Bharana, which has already been accepted by the management of

the Applicant/EARCL and also by the competent authority of the Canara

Bank, and the response from the remaining member of the CoC i.e.,

Bank of India on the said Settlement Proposal is awaited.

3.2. This Tribunal vide its Order dated 23.11.2022 has dismissed

another IA-5694/2022 filed by the said Promoter - Mr. Hem Singh

Bharana, seeking hearing of the application for approval of Resolution

Plan in abeyance in view of the pendency of consideration and voting on

the said Settlement Proposal by the CoC of the Corporate Debtor.

Thereafter, this Tribunal has finally heard the Resolution Plan

application i.e., IA-1077/2020 and reserved the same for orders.

Therefore, the Applicant apprehends that any order passed at this stage

by this Tribunal while the Settlement Proposal is at the final stage of

either approval or rejection by one remaining member of the CoC, may be

severely prejudicial to the interest of all the CoC members and would

defeat the primary objective of value maximization under the IBC.

3.3. During the pendency of the CIRP, Mr. Hem Singh Bharana,

promoter of the Respondent had approached the members of the CoC,

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namely, EARCL, Canara Bank and Bank of India for settlement of the

debt of the Respondent. Based on discussions, the Promoter submitted a

Settlement Proposal dated 31.05.2022, whereby it has proposed to pay a

total amount of INR 16.37 crore (“Settlement Consideration”) towards

one-time settlement of the debt. Further, vide the said Settlement

Proposal, the Promoter has proposed an upfront payment of 15% of the

settlement consideration and pay the balance amount within 90 days

from the date of the order passed by this Tribunal permitting withdrawal

of CIRP of the Corporate Debtor under Section 12A of IBC.

3.4. The aforesaid Settlement Proposal submitted by the Promoter of

the Respondent was discussed at length in the joint Lenders Meeting

(“JLM”) held on 18.07.2022. The members were apprised of the fact that

the Settlement Proposal received from the Promoter is better as

compared to the Resolution Applicant's Plan in the CIRP in respect of

timelines and the amount provided under the plan. In the said meeting,

it was decided that the upfront amount is required to be increased from

15% to 20% of the settlement consideration. In the event the said

proposal is accepted by the CoC and subsequently, if the Promoter fails

to deposit the balance settlement consideration within 90 days of the

order of this Tribunal permitting withdrawal of CIRP under Section 12A

IBC, the said upfront payment of 20% deposit shall be forfeited.

3.5. In furtherance of the said settlement proposal, the Promoter has

deposited with the Applicant/EARCL, a sum of Rs. 3.27 crore being the

upfront payment of 20% of the total settlement consideration vide

Demand Draft bearing no. 637758 dated 06.08.2022. The

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Applicant/EARCL vide its letter dated 12.08.2022, has duly

acknowledged the receipt of the upfront amount as per the Settlement

Proposal and has informed the Promoter that the settlement shall be

placed before the CoC for its consideration and formal voting process.

3.6. The approval of the Settlement Proposal submitted by the promoter

was duly communicated by Canara Bank, being another member of the

CoC of the Corporate Debtor, vide its E- mail dated 13.09.2022. In the

said E-mail, it is informed that the competent authority of the Canara

Bank has approved the said proposal submitted by the ex-promoter for

filing the withdrawal application under Section 12A of the IBC.

3.7. The Applicant/EARCL has intimated vide E-mails dated

26.09.2022 and 21.11.2022 to the RP that the lenders are in the process

of entering into a settlement with the Promoter and that of M/s. Angad

Infrastructure Pvt Ltd. However, despite the above intimations, the RP

proceeded ahead with the hearing of the plan approval application.

3.8. The Applicant has further submitted that the final decision from

Bank of India on the Settlement Proposal is expected very shortly and, in

the meanwhile, this Tribunal may defer passing of any order(s) in respect

of the Plan approval application i.e., IA-1077/2020 which was heard on

02.12.2022, in the interest of justice and objectives of IBC.

4. During the course of hearing of the present Application on

22.12.2022, this Bench had raised a query regarding maintainability of

the present Application. The Ld. Senior Counsel appearing for the

Applicant, in response to the same, stated that the withdrawal of CIRP

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under Section 12A of IBC, 2016 can be considered by the CoC at any

stage and, even after the approval of the Resolution Plan by the CoC. In

order to support its contention, he relied upon the Judgment of the

Hon'ble NCLAT passed in the matter of “Shaji Purushothaman Vs.

Union Bank of India & Ors.” in Company Appeal (AT) Insolvency No.

921 of 2019 dated 06.09.2019. He further added that withdrawal of

CIRP by CoC is the commercial wisdom of CoC and relied upon the

Judgement of the Hon'ble Apex Court passed in the matter of “Vallal

RCK vs. M/s. Siva Industries and Holdings Limited and Others” in

Civil Appeal Nos. 1811-1812 of 2022.

5. The Ld. Counsel, appearing on behalf of the Successful Resolution

Applicant (SRA) opposed the prayer made by the Applicant and

submitted that the arguments, which have been advanced by the Ld. Sr.

Counsel for the Applicant in the present matter, were also advanced

during the hearing in the Hon'ble NCLAT on 13.12.2022 of the Company

Appeal (AT) (Ins) No. 1481 of 2022 preferred by the promoter against the

rejection of IA-5694/2022 by this Adjudicating Authority. He further

submitted that the Hon'ble NCLAT has, inter alia, held that an order

passed by this Adjudicating Authority on plan approval application shall

abide by the result of the said appeal. Ld. Counsel further submitted that

the order in the said Appeal is reserved by the Hon’ble NCLAT on

13.12.2022.

6. Ld. Counsel appearing for the RP submitted that the Resolution

Plan once approved by the COC, heard and order reserved by this

Adjudicating Authority, the question of settlement under Section 12A

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does not arise. In this regard, Ld. Counsel for the RP relied on the

Judgements of the Hon'ble NCLAT passed in the matter of “Kalinga

Allied Industries India Private Limited Vs. Committee of Creditors &

Ors” in Company Appeal (AT) Insolvency No. 689 of 2021 dated

19.12.2022 and the Judgement of the Hon'ble Apex Court passed in the

matter of “Ebix Singapore Private Limited Va. Committee of

Creditors of Educomp Solutions Ltd. & Anr”.

7. We have heard the submissions made by the parties and perused

the documents and the judgements placed on record. It is a matter of

fact as well as record that the Resolution Plan of the Corporate Debtor in

the present matter is approved by the CoC with 100% votes, which

means that all the members of the CoC have duly assented to it. The said

Resolution Plan upon approval by CoC with requisite majority, as per the

provisions of the IBC 2016, is filed by the RP vide IA-1077/2020 for

seeking approval of this Adjudicating Authority. Accordingly, this

Adjudicating Authority heard the IA-1077/2020 on 02.12.2022 and

reserved the same for orders.

8. Whereas the Resolution Plan heard by this Adjudicating Authority

has the assent of CoC with 100% votes and the IA No. 1077/2020 is duly

preferred by the RP, the present Application seeking deferment of orders

is neither filed by the RP nor by the CoC, rather it has been preferred by

one of the members of the CoC i.e., the EARCL, who seems to have

accepted the settlement proposal of the promoter outside the IBC-

provided forum of CoC and has taken upon itself through a parallel route

to seek approval from the other members of CoC. Admittedly, the said

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proposal has yet to receive the assent of the third member of CoC and is

yet to be placed before the CoC and considered by the CoC. We also note

that at present, there is no proposal placed before this Adjudicating

Authority through RP for withdrawal of the CIRP of the Corporate Debtor

under Section 12A of IBC, 2016, even after the lapse of 04 weeks as

prayed for.

9. Though there is no proposal of RP or resolution of CoC on record to

consider withdrawal of the CIRP of the CD, we would still like to examine,

whether the said “settlement proposal” can even be considered

under Section 12A of IBC, 2016, once the Resolution plan is already

approved by the CoC and heard conclusively by the Adjudicating

Authority?

10. At this juncture, we would like to refer to the Judgement passed in

the matter of Union Bank of India Vs Kapil Wadhawan & Ors

Company Appeal (AT) (Insolvency) No. 370 of 2021 dated

27.01.2022, wherein the Hon’ble NCLAT held the following:

“9.6 Based on the law laid down by Hon'ble Supreme Court in

the cases mentioned above, it is clear that;

a) Once the Resolution Plan is approved by a 100 per cent

voting share of the CoC. The jurisdiction of the
Adjudicating Authority was confined by the provisions of
Section 31(1) to determining whether the requirements of
Section 30(2) have been fulfilled in the plan as approved
by the CoC.

b) Once the requirements of the IBC have been

fulfilled, the Adjudicating Authority and the
Appellate Authority are duty-bound to abide by the
discipline of the statutory provisions. Neither the
Adjudicating Authority nor the Appellate Authority

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 has an unchartered jurisdiction in equity. The
jurisdiction arises within and as a product of a
statutory framework.

c) The jurisdiction of the Adjudicating Authority is

confined by the provisions of Section 31(1) to
determining whether the requirements of Section
30(2) have been fulfilled in the plan as approved by
the CoC.

d) There was no scope for negotiations between the

parties once the CoC had approved the Resolution
Plan. Thus, contractual principles and common law
remedies, which do not find a tether in the wording
or the intent of the IBC, cannot be imported in the
intervening period between the acceptance of the
CoC and the Approval by the Adjudicating Authority.

9.7 In the instant case, we found that after Approval of the

Resolution Plan by the Committee of Creditors, the application
was pending before the Adjudicating Authority under Section
31 of the Insolvency and Bankruptcy Code, 2016, for Approval
of the resolution plan the Adjudicating Authority accordingly
while disposing of the Interim Application, IA no. 2431 of 2020,
directed the CoC to consider the 'IInd Settlement Proposal' of the
First Respondent, i.e. Applicant/ Promoter, within ten days and
take an appropriate decision

9.8 Considering the ratio of the Judgement of the Hon'ble

Supreme Court in the case of Ebix Singapore (supra), "there was
no scope for negotiations between the parties once the CoC has
approved the Resolution Plan. Thus, contractual principles and
common law remedies, which do not find a rope in the wording
or the intent of the IBC, cannot be imported in the intervening
period between the acceptance of the CoC Approved Resolution
Plan and the Approval by the Adjudicating Authority."
9.9 The said exercise was beyond the jurisdiction of the
Adjudicating Authority hence unsustainable and liable to be set
aside.”

11. On perusal of the Judgement (Supra), it becomes clear that there is

no scope for any settlement/negotiation between the parties, once the

CoC has approved the Resolution Plan of the Corporate Debtor.

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12. The Applicant had relied upon the Judgement of the Hon’ble NCLAT

in the matter of “Shaji Purushothaman Vs. Union Bank of India &

Ors.” in Company Appeal (AT) Insolvency No. 921 of 2019, dated

06.09.2019 but the same cannot be treated as a precedent in view of the

fact that the Judgement of Hon’ble NCLAT in Union Bank of India Vs

Kapil Wadhawan & Ors Company Appeal (AT) (Insolvency) No. 370 of

2021 dated 27.01.2022 and the Judgement of Hon’ble Supreme Court

passed in the matter of Ebix Singapore Private Limited Va. Committee

of Creditors of Educomp Solutions Ltd. & Anr.” Civil Appeal No.

3224 of 2020, dated 13.09.2021, are of subsequent dates.

13. Hence, we are of the considered view and accordingly, conclude

that once the Resolution Plan of a Corporate Debtor is approved by the

CoC, there is no scope of settlement/negotiation between the parties. In

the instant case not only the Resolution Plan has been approved by the

CoC with 100% voting but also the Application filed by the RP seeking

approval of the said Resolution Plan has been heard and reserved for

orders. Therefore, we are not inclined to allow the present Application.

14. The IA is accordingly Dismissed.

Sd/- Sd/-
(L. N. GUPTA) (BACHU VENKAT BALARAM DAS)
MEMBER (T) MEMBER (J)

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 NATIONAL COMPANY LAW TRIBUNAL
NEW DELHI BENCH (COURT-II)
IA. NO. 1077/ND/2020
IN
Company Petition No. (IB)-71(ND)/2019

IN THE MATTER OF:

Edelweiss Asset Reconstruction Company Limited
...Applicant/Financial Creditor
Versus

M/s. Pawan Doot Estate Private Limited

…Respondent

AND IN THE MATTER OF IA-1077/ND/2020:

Mr. Darshan Singh Anand

Resolution Professional
For Pawan Doot Estates Private Limited
…Applicant
VERSUS

1. Mr. Pradeep Kumar Lathar

House No. 6, Deep Farm,
IOC Road, Bijwasan, Delhi - 110061
…Respondent No. 1
2. Mehar Footwear Private Limited
(now, known as M/s. Mehar Bhoomi Bhawan Private Limited)
Property No. 72/11/2,
First Floor, Deep Chambers,
Swarn Park, Mundka, Delhi – 110041
…Respondent No. 2

Order Delivered on: 18.01.2023

SECTION: 30(6) read with 31(1) of the IBC, 2016

CORAM:
SH. BACHU VENKAT BALARAM DAS, HON’BLE MEMBER (J)
SH. L. N. GUPTA, HON’BLE MEMBER (T)

PRESENT:
For the Applicant : Mr. Sanjay Bhatt, Ms. Apoorva Chowdhary Advs.
For the Respondent : Adv. Riya Thomas, for Resolution Applicant

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 ORDER

PER: SHRI L. N. GUPTA, MEMBER (T)

Mr. Darshan Singh Anand, Resolution Professional of M/s. Pawan

Doot Estates Private Limited (“Applicant/ Resolution Professional”) has

filed the present IA No. 1077 of 2020 under Section 30(6) read with

Section 31(1) of the Insolvency and Bankruptcy Code, 2016 read with

Regulation 39(4) of the IBBI (Insolvency Resolution Process of Corporate

Persons) Regulations 2016, for approval of the Resolution plan submitted

by a consortium of Mr. Pradeep Kumar Lathar and M/s. Mehar Footwear

Private Limited (“Successful Resolution Applicants” / “SRA”), seeking

the following reliefs :

“a) Pass an order under Section 31(1) of the Code for approval of
the resolution plan submitted by Consortium of Mr. Pardeep
Lather and Mehar Footwears Private Limited as approved by
the committee of creditors by 100% voting under sub-section
(4) of the section 30 as the said resolution plan meets the
requirements as referred to in sub-section (2) of the Section 30
of the Code;

b) Pass such other further order/ order(s) as may be deemed fit

and proper in the facts and circumstances of the case and in
the interest of justice.”

2. To put succinctly, the facts of the present case are that M/s.

Edelweiss Asset Reconstruction Company Ltd (EARCL) filed an application

under Section 7 of IBC, 2016 for initiating CIR Process against the

Corporate Debtor M/s. Pawan Doot Estates Private Limited. The said

Application was admitted by this Tribunal vide Order dated 10.05.2019

and Mr. Darshan Singh Anand was appointed as the Interim Resolution

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 Professional (IRP) of the Corporate Debtor. Later, the IRP Mr. Darshan

Singh Anand was confirmed and continued as RP of the Corporate Debtor.

3. It is submitted by the Applicant that in terms of Regulation 6(1) of

the IBBI (Insolvency Resolution Process for Corporate Persons)

Regulations, 2016, the said IRP made a Public Announcement in Form-A

on 24.05.2019 to invite claims, which was uploaded on the website of

Insolvency and Bankruptcy Board of India (IBBI).

4. It is further submitted that the Resolution Professional constituted

a Committee of Creditors (CoC) comprising of the following members:

5. It is stated by the Applicant that the ‘Form-G’ was published on

20.02.2019 in the daily newspapers, namely, Free Press Journal (English),

Navshakti (Marathi) in Mumbai Edition, Financial Express (English) &

Jansatta (Hindi) in Delhi Edition. It is added that as per the Form G, the

last date for submission of Resolution Plans was 07.09.2019.

6. It is further stated that the Applicant received total 03 Expressions

of Interest (EOIs) from the Prospective Resolution Applicants (PRAs),

namely, Meher Footwear Pvt. Ltd., City Infrastructure Pvt. Ltd. and Art

Constructions Pvt. Ltd.

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 7. It is further stated by the Applicant that the only Resolution Plan

received was from a consortium of Mr. Pradeep Kumar Lathar and M/s.

Mehar Footwear Private Limited (“Successful Resolution Applicants” /

“SRA”) on 07.09.2019 along with bid bond Guarantee of Rs. 1 (one) Crore.

8. After negotiations on the plan amount with the SRA, the Final

Resolution Plan was placed before the CoC in its 10th meeting held on

06.01.2020, which considered and approved the following resolution -

9. During the course of hearing of the Resolution Plan application on

26.03.2021, this Adjudicating Authority had observed in its order that the

aforesaid resolution was subject to certain exception, modification and the

Resolution Applicant submitting the validated source of finance. The

scanned copy of the order dated 26.03.2021 is reproduced overleaf for the

sake of convenience:

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 10. In compliance of the directions dated 26.03.2021, the Applicant

then filed the Additional Affidavit 09.04.2021 and stated that the

Resolution Plan was again put to vote in the 12th meeting of CoC held on

05.04.2021. The Applicant has also placed on record the voting sheet of

the 12th meeting of CoC, whereby the Resolution plan is approved by the

100% of its votes. The copy of the relevant minutes and voting sheet, as

placed on record, are reproduced below, for the sake of convenience:

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 11. As regards to the compliances under the Resolution Plan, the

Applicant has submitted the following in the Form ‘H’ filed along with the

Application:

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 12. The details of the distribution of the resolution plan amount, as

submitted in Form ‘H’, amongst the stakeholders is reproduced below –

13. As per the Form ‘H’ filed by the Applicant on record, the Fair

Market Value of the Corporate Debtor is Rs.15,16,56,850/- and the

Liquidation Value of the Corporate Debtor is Rs. 10,61,59,745/-. The

amount provided under the Plan is Rs. 14.10 Crore.

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 14. The Applicant has also filed the Affidavit of the Successful

Resolution Applicant stating that they are not barred under Section 29A to

submit the Resolution Plan. In addition, the Consortium Agreement of the

Resolution Applicants has also been placed on record.

15 It is further stated by the Applicant in its application and during

the hearing that in terms of the Regulation 36B(4A) of the IBBI (Insolvency

Resolution Process of Corporate Persons) Regulations, 2016, the Applicant

on 04.02.2020 has received the Performance Security from the SRAs by

way of Demand draft drawn in favour of “Pawan Doot Estate Private

Limited” issued by Axis Bank Ltd, Paschim Vihar Branch, New Delhi, vide

DD No. 182108 for a sum of Rs. 1,41,00,000/-.

16. On perusal of the Resolution Plan, it is seen that the SRAs have

sought the following reliefs and concessions in the Resolution Plan –

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 17. The matter was heard on 02.12.2022 and was reserved for orders.

However, on perusal of the records, it was noticed that though the

Resolution plan is submitted by a consortium of Mr. Pradeep Kumar

Lathar and M/s. Mehar Footwear Private Limited, the Affidavit under

Section 29A of IBC, 2016 was only placed on record for the Mehar

Footwear Private Limited, by only one Director, namely, Mr. Amit Narula.

It was also noticed that the proof of the Performance Guarantee, averred

to have been submitted by the SRA, was also not placed on the record.

18. Accordingly, vide order dated 03.01.2022, this Adjudicating

Authority directed the applicant/RP of the Corporate Debtor to bring on

record (a) the proof of Performance Guarantee submitted by the Resolution

Applicants, (b) Affidavit of Mr. Pradeep Kumar Lathar (the other member of

the consortium) clearly affirming that he is no barred under Section 29A of

IBC, 2016, (c) Affidavit of at least two Directors of M/s. Mehar Footwear

Pvt. Ltd. that M/s. Mehar Footwears Pvt. Ltd. is not barred under Section

29A of IBC, 2016 to submit the Resolution Plan; and (d) latest master data

of M/s. Mehar Footwear Pvt. Ltd. available on MCA website, by filing an

affidavit within 03 days.

19. The Applicant/RP, in compliance of the aforesaid directions, have

filed its Affidavit dated 06.01.2023, which is reproduced overleaf :

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 20. On perusal of the aforesaid affidavit, it is observed that the

Resolution Applicant Company (R-2) namely, M/s. Mehar Footwear Pvt.

Ltd. has changed its name to M/s. Mehar Bhoomi Bhawan Private Limited.

Further, the Affidavits in compliance of Section 29A of IBC, 2016 have

been filed by the Applicant/RP on behalf of the Successful Resolution

Applicants.

21. The Applicant/RP has also filed the proof of the Performance

Guarantee in terms of Demand Draft dated 04.02.2020 drawn on Axis

Bank amounting to Rs. 1,41,00,000/-. He has stated that the said demand

draft has been encashed and the amount is lying in shape of a term

deposit with the Axis Bank valid till 10.02.2023.

22. After going through the Application, Additional Affidavit and all

other documents placed by the Applicant/RP on record and hearing the

Ld. Counsel appearing on behalf of the applicant, we observe that the CoC

of the Corporate Debtor has duly considered and approved the Resolution

Plan submitted by the Successful Resolution Applicants by a voting share

of 100% in its 12th Meeting held on 05.04.2021.

23. The role of the Adjudicating Authority has been examined by the

Hon’ble Supreme Court in a catena of judgements. The relevant portion of

the decision of the Hon’ble Supreme Court in Civil Appeal No. 10673 of

2018 in the matter of K. Sashidhar Vs. Indian Overseas Bank & Ors. is

reproduced below:

“35. Whereas, the discretion of the adjudicating authority

(NCLT) is circumscribed by Section 31 limited to scrutiny of

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 the resolution plan “as approved” by the requisite percent of
voting share of financial creditors. Even in that enquiry, the
grounds on which the adjudicating authority can reject the
resolution plan is in reference to matters specified in Section
30(2), when the resolution plan does not conform to the
stated requirements. Reverting to Section 30(2), the enquiry
to be done is in respect of whether the resolution plan
provides : (i) the payment of insolvency resolution process
costs in a specified manner in priority to the repayment of
other debts of the corporate debtor, (ii) the repayment of the
debts of operational creditors in prescribed manner, (iii) the
management of the affairs of the corporate debtor, (iv) the
implementation and supervision of the resolution plan, (v)
does not contravene any of the provisions of the law for the
time being in force, (vi) conforms to such other requirements
as may be specified by the Board. The Board referred to is
established under Section 188 of the I&B Code. The powers
and functions of the Board have been delineated in Section
196 of the I&B Code. None of the specified functions of the
Board, directly or indirectly, pertain to regulating the manner
in which the financial creditors ought to or ought not to
exercise their commercial wisdom during the voting on the
resolution plan under Section 30(4) of the I&B Code. The
subjective satisfaction of the financial creditors at the time of
voting is bound to be a mixed baggage of variety of factors.
To wit, the feasibility and viability of the proposed resolution
plan and including their perceptions about the general
capability of the resolution applicant to translate the
projected plan into a reality. The resolution applicant may
have given projections backed by normative data but still in
the opinion of the dissenting financial creditors, it would not
be free from being speculative. These aspects are completely
within the domain of the financial creditors who are called
upon to vote on the resolution plan under Section 30(4) of the
I&B Code.”

“38. Indubitably, the inquiry in such an appeal would be

limited to the power exercisable by the resolution
professional under Section 30(2) of the I&B Code or, at best,
by the adjudicating authority (NCLT) under Section 31(2) read
with 31(1) of the I&B Code. No other inquiry would be
permissible. Further, the jurisdiction bestowed upon the
appellate authority (NCLAT) is also expressly circumscribed.
It can examine the challenge only in relation to the grounds

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 specified in Section 61(3) of the I&B Code, which is limited to
matters “other than” enquiry into the autonomy or
commercial wisdom of the dissenting financial creditors.
Thus, the prescribed authorities (NCLT/NCLAT) have been
endowed with limited jurisdiction as specified in the I & B
Code and not to act as a court of equity or exercise plenary
powers.”

24. In view of the decision referred to Supra, it is a well-settled

principle of law that the Adjudicating Authority is not required to interfere

with the decision taken by the CoC in its commercial wisdom, save and

except the circumstances referred to in Section 30(2) of the IBC, 2016.

25. In sequel to the above, we have no other option but to approve the

Resolution Plan as approved by the CoC and as placed by the Applicant

before this Adjudicating Authority. We, therefore, allow the present

Application and approve the COC approved Resolution Plan placed

before us by the Applicant/RP with the following directions in

respect of the Corporate Debtor:

(i) The approved Resolution Plan as annexed with COC approved

addendums shall become effective from the date of passing of

this Order and shall be implemented strictly as per the term of

the plan and implementation schedule given therein;

(ii) The reliefs and concessions as sought by the Resolution

Applicants in para 14 of the Resolution Plan are granted

subject to their admissibility under relevant law, regulations

and rules;

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 (iii) The Performance Guarantee of Rs. 1,41,00,000/- reported to

have been encashed and kept in shape of a term deposit with

the Axis Bank valid till 10.02.2023, shall be renewed in the

name of and kept by “Monitoring Committee of the Corporate

Debtor- Pawan Doot Estate Pvt. Ltd.” till the Resolution Plan

is fully implemented.

(iv) The Monitoring Committee as provided in the Resolution Plan

shall be setup by the Applicant within 07 days of passing of

this Order, which shall take all necessary steps for

implementation of the Resolution Plan as per approval.

(v) The order of the moratorium in respect to the corporate debtor

passed by this Adjudicating Authority under Section 14 of the

IBC, 2016 shall cease to have effect from the date of passing of

this Order; and

(vi) The Resolution Professional shall forward all the records

relating to the conduct of the CIRP and the Resolution Plan to

the IBBI for its record and database.

26. The Resolution Professional shall forthwith send a copy of this

Order to the CoC and the Resolution Applicants for necessary compliance.

A copy of this order shall also be sent by the Applicant to the IBBI for their

record.

Sd/- Sd/-
(L. N. GUPTA) (BACHU VENKAT BALARAM DAS)
MEMBER (T) MEMBER (J)

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