Khemani Distributors And Marketing Ltd vs Huzefa Fakhri Sitabkhan & Anr

In the matter of: Khemani Distributors & Marketing Ltd. ....Appellant Vs. Mr. Huzefa Sitabkhan & Anr. ...Respondents For Appellant Mr. Pulkit Sharma, Mr. Kunal Kanungo, Mr. Dhrumil Shah, Advocates. For Respondents Mr. Abhishek Anand, Mr. Dhiraj Mhetre, Ms. Smiti Tewari, Mr. Sanampreet Singh, Ms. Shivani Sharma, Advocates for R1.

ORDER

(Hybrid Mode)

27.05.2024: Heard Learned Counsel for the Appellant and Learned

Counsel for the Respondent.

2. This Appeal has been filed against the order dated 28.03.2024 by which

IA No.5390 of 2023 filed by the Appellant has been rejected. In the IA which

was filed by the Appellant, following prayers have been made:-

"i. This Hon'ble Tribunal be pleased to allow this application;

ii. This Hon'ble Tribunal be pleased to set aside the alleged decision of the COC in its 19th meeting held on 18th August 2023 in its entirety, including the decision of the COC allegedly approving the resolution plan of another resolution applicant and allegedly declaring the Applicant as the unsuccessful resolution applicant;

2 iii. This Hon'ble Tribunal be pleased to pass an order rejecting the interlocutory application filed by Respondent No, 1 for approval of resolution plan of the Corporate Debtor;

iv. Pending the hearing and final disposal of this application, this Hon'ble Tribunal be pleased to pass an order restraining the Respondents from undertaking any further steps and actions in respect of the conclusion of CIRP of the Corporate Debtor;

v. Pending the hearing and final disposal of this application, this Hon'ble Tribunal be pleased to pass an order keeping interlocutory application filed by Respondent No. 1 for approval of resolution plan of the Corporate Debtor in abeyance;

vi. Pending the hearing and final disposal of this application, this Hon'ble Tribunal be pleased to stay the effect, operation and implementation of the alleged decision of the COC in its 19th meeting held on 18th August 2023:

vii. Pending the hearing and final disposal of this application, this Hon'ble Tribunal be pleased to pass an order directing the Respondents to disclose on oath:

a. minutes of all meetings of the COC of the Corporate Debtor in which the resolution plan of the Applicant is including discussed, the 16th, 17th and 18th meetings of the COC held on 25th May 2023, 31st May 2023 and 2nd June 2023 respectively; and

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b. decision and/or scoring on the evaluation matrix for the resolution plan of the Corporate Debtor for all resolution applicants

viii. For ad interim and interim reliefs in terms of prayer (ii) to (vii) above;

ix. For costs and;

x. For such other order and further reliefs as this Hon'ble Tribunal may deem fit in the facts and circumstances of the case."

3. The Appellant, one of the Resolution Applicants whose plan was

considered by the CoC and in the 19th meeting held on 18.08.2023, the plan

of another SRA was approved. The Resolution Professional filed application for

approval of the plan which application has been heard and order is reserved,

as submitted by counsel for the Respondent.

4. Learned Counsel for the Appellant challenged the order on two grounds.

Firstly, he submits that in the 19th meeting which was held by the CoC, email

dated 05.06.2023 submitted with regard to plan of the appellant was not taken

into consideration whereas SRA whose plan has now been approved was also

given time to give the details of source of funds and he also could have

submitted the details on 05.06.2023 itself which is recorded in the minutes.

He further submits that earlier there was Form G issued and EoIs invited

where compliant plan was received but CoC decided to re-run the CIRP by

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issuing fresh EoI and thereafter fresh EoI was issued and plan received now

been considered and approved.

5. Shri Abhishek Anand, Learned Counsel for the Respondent submits that

in the meeting held on 18.08.2023, it was resolved that no document received

on 05.06.2023 either from the Appellant or from the SRA shall be considered

and the plan shall be considered exclusive of the above documents, as noticed

in the minutes. He further submits that insofar as EoI is concerned, the plan

submitted by one Zicom SaaS Pvt. Ltd. who, after the decision was taken to

issue fresh EOI, requested to return his amount and taken back the EMD.

Appellant has not submitted any plan with regard to first EOI, appellant has

participated in the second EOI, cannot now challenge the process.

6. We have considered the submissions of the parties and perused the

record.

7. The minutes which has been referred to by the appellant is of meeting

dated 18.08.2023 which is as follows:-

"Chairman further provided following key updates subsequent to the (last) Eighteenth Meeting of CoC dated June 02, 2023:

a. Till the 18th CoC Meeting, Advaita Trading Private Limited (ATPL), despite multiple requests, had not submitted additional supporting's to back the MoU for raising debt entered with Money Care Finance and Leasing Company Limited sought by the CoC and the representatives of ATPL were again requested by the CoC and the RP to provide additional documents to back the MoU for debt raising.

b. The representatives of ATPL during the meeting sought time till the evening of same day, I.e., June 02, 2023 to provide the required records. However, the RP

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was in receipt of an email from ATPL in the evening of June 02, 2023 wherein it undertook to provide the required supporting's but sought more time for submission of the same.

c. Subsequently, ATPL through a mail dated June 05, 2023 submitted the digital copy of the supporting documents to back the MoU its sources of funds.

d. The Resolution Professional is also in receipt of a Confirming Letter from one Choice Finserv Private Limited ('Choice') which is addressed to the Committee of Creditors of the Corporate Debtor through the RP wherein Choice, on the basis of a binding offer issued by itself to Khemani Distributors and Marketing Limited ('KDML') (also annexed) has offered to acquire 2,50,000 fresh non KDML shares of the Corporate Debtor post successful resolution at a per share price of Rs. 70 subject to KDML being declared as the successful resolution applicant.

The CoC members asked the view of the Chairman on these submissions. Further, the Director (powers suspended) expressed his view stating that he understands that till date, the CIRP of the Corporate Debtor has been run in a fair and transparent manner and as per the Code and Regulations and to ensure sanctity of the process, submissions that change the outlay of the financial proposal of any resolution plan received post the final deadline should not be considered by the CoC.

The Chairman stated that all the requirements for submission of a resolution plan along with supporting documents were clearly spelt out in the Request for Resolution Plan ("RFRP") dated April 25, 2023 which was made available to all the Resolution Applicants at the initiation of their due diligence and no additional conditions, clauses, requirements were introduced in between the process. Therefore, all the resolution applicants were expected to adhere to the requirements in their submission of the resolution plan dated May 12, 2023. However, owing to the ongoing discussions and negotiations between the CoC and the Resolution Applicants, the Resolution Applicants were provided various opportunities to rectify their submissions and improve on their financial proposal with deadlines for submissions falling on May 24, 2023, May 29, 2023 and the final deadline being June 01, 2023.

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Since, the submissions from, two Resolution Applicants, namely, ATPL and KDML as explained above, have been received subsequent to the final deadline allowed for submissions to all the four Resolution Applicants, therefore, in the view of the Chairman, to adhere to the RFRP and ensure a level playing field and opportunity to all resolution applicants, the submissions received after the final deadline would not be included in the resolution plans submitted by these Resolution Applicants and the compliant resolution plans of both these resolution applicants would be considered exclusive of the above submissions made by them.

The Chairman is sharing the communications received as information to the CoC and not as part of the resolution plans. The Chairman reiterated his view that the submissions received after the final deadline should not be taken on record as part of the resolution plans to ensure adherence to the RFRP and the process.

Accordingly, the participants took note of the same."

8. The submission of the appellant that e-mail which was sent on

05.06.2023 has not been considered whereas documents submitted by SRA

has been considered is belied from the record itself where the decision was

taken to consider the plan exclusive of the submission dated 05.06.2023.

Thus, we do not find any substance.

9. Coming to the second submission with regard to first EOI. After receipt

of the plan, CoC took a decision to invite fresh EOI in pursuance of which

appellant participated in the process and his plan was considered. It was open

for the appellant to challenge the issuance of 2nd EOI which was never done.

Further as submitted by counsel for the appellant, decision was taken by the

CoC to invite fresh EOI as plan value was much below the liquidation value.

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10. In any view of the matter, we are of the view that the appellant cannot

be allowed to challenge the issuance of 2nd EOI on this ground. We, thus, do

not find any error in the impugned order. The appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) Anjali/nn

Company Appeal (AT) (Insolvency) No. 906 of 2024