Yashdeep Sharma Vs Tara Chand Meenia (NCLAT Delhi)
NCLAT Delhi has upheld the decision of adjudicating authority (NCLT, Jaipur) who uphold decision of adjudicating authority (NCLT, Jaipur).
Appellant is suspended director of Corporate Debtor who challenged the impugned order passed by NCLT, Jaipur (Adjudicating Authority) by which it approved resolution plan of Truefalir Buildwell LLP i.e. Successful Resolution Applicant (SRA) placed by RP.
It was submitted on behalf of the appellant that RP had failed to conduct the CIRP proceedings of the Corporate Debtor with due diligence. Being suspended management of the CD appellant had a right to participate in the CoC proceedings and were entitled to have a copy of the resolution plan of all the PRAs. However, their participation was prevented by the RP as they were denied access to a copy of the resolution plan of SRA. Appellant argued that they had sent an e-mail to the RP demanding the resolution plan of the SRA. However, the RP did not share the plan prior to the commencement of voting which displays a clear intention on their part to prevent the suspended management from effectively participating in the discussion on the resolution plan. The email containing the final revised resolution plan of SRA was received by RP on the evening of 22.05.2024 by e-mail in the form of a word document sent as an attachment. Clauses 11(i) and 11(ii) of the RFRP required the SRA to sign each page of the submitted resolution plan which has not been done. As this document was unsigned, it was not even a valid resolution plan submission. It was also submitted that mentioned that even the CoC was not supplied copy of the plan of the PRA and that it was merely screen-shared during the CoC meeting. Further, the manner in which the resolution plan was approved in the 54th CoC meeting casts a serious doubt on the bonafide of the RP in the conduct of the CIRP. Since, the financial proposal of the plan was screen shared by the RP at the time of CoC meeting, no real discussion could be held on the feasibility and viability of the resolution plan as no member of the CoC had a copy of the final revised resolution plan. It is pointed out that while the final revised resolution plan was received at around 5 pm, the 54th CoC meeting concluded by around 6 pm which shows that the resolution plan was hastily passed by the CoC who approved the resolution plan without the resolution plan in its final form being available before it and hence impermissible as held by the Hon’ble Supreme Court in the M.K Rajagopalan Vs Dr. Perisamy Palani Gounder (2024) 1 SCC 42. Since the word document of the resolution plan was opened in the CoC meeting, the necessary steps outlined under IBC like scrutiny of plan by RP under Section 30(2) of the IBC, evaluation of plan by RP and CoC as per evaluation matrix could not have been completed. It is also contended that the scoring on evaluation matrix which is the prerogative of the CoC was in fact done by the RP which is not in order.
