Om Drishian International Limited vs Mr Rakesh Kumar Gupta

IN THE MATTER OF: Om Drishian International Ltd. ...Appellants Versus Rakesh Kumar Gupta ...Respondents Resolution Professional Earth Buildprop Pvt. Ltd. & Anr.

Present: For Appellant : Mr. Sumant Batra, Ms. Neeha Nagpal, Mr. Malak Bhatt, Mr. Sarthak Bhandari, Ms. Riya Kaur Ardra and Mr. Ajatshtru Singh Rawat, Advocates. For Respondents : Dr. Sumant Bharadwaj, Mr. Vedant Bharadwaj, Advocates for RP a/w Mr. Anshu Singh-AR.

Mr. Rakesh Kumar Gupta, RP in person.

ORDER

(Hybrid Mode)

23.07.2025: Heard Shri Sumant Batra learned counsel for the appellant

as well as learned counsel for the RP and also learned counsel for the

appearing for the Committee of Creditors.

2. This appeal has been filed against the order dated 27.03.2025 passed

by National Company Law Tribunal, New Delhi Bench, Court-IV by which

order the IA No. 4291/ND/2024 was partly allowed.

3. Brief facts necessary to be noticed for deciding the appeal are, the

Section 7 application was admitted against the Corporate Debtor M/s Earth

Buildprop Private Limited by order dated 13.05.2019, after publication of

Form-G resolution plan was submitted by appellant which came to be

approved with 75.45% vote share on 11.06.2020, RP filed an application being IA No. 2473 of 2020 for approval of the resolution plan. The RP filed

another application being IA No. 4291 of 2024 on 21.08.2024 praying for

several reliefs including withdrawal of the IA No. 2473/2020 and permitting

the RP to invite revised resolution plan. Both the applications came to be

considered by the Adjudicating Authority vide the impugned order IA No.

4291/ 2024 was partly allowed. Prior to the passing of final order 27.03.2025

Adjudicating Authority has granted opportunity to the appellant by an order

on 29.01.2025 which has been referred in paragraph-7 of the impugned

order. The Adjudicating Authority has observed that despite giving ample

opportunities SRA failed to place the affidavit on record. Consequently,

Adjudicating Authority issued directions in paragraph-9, it is useful to notice

paragraphs 7 to 10 of the impugned order which are as follows:-

"7. On 16.01.2025 Despite giving an undertaking, the Successful Resolution Applicant had not taken any steps to file an affidavit as directed vide order dated 12.12.2024. further, Learned Counsel for the Successful Resolution Applicant sought further time to file an affidavit. Accordingly, parties were directed to complete the pleadings, if already not completed. That, further on 29.01.2025, despite giving opportunity SRA did not filed the affidavit accordingly this Adjudicating Authority closed the chance to file of the affidavit. The relevant order dated 29.01.2025 is reproduced herein:

"This Tribunal vide order dated 16.01.2025 recorded that despite giving undertakings the Successful Resolution Applicant has not taken any steps to file an affidavit as directed vide order dated 12.12.2024. Even today the affidavit is not on board. Chance to file the affidavit is closed"

On perusal of the record we find that despite giving ample opportunity to the SRA, to place an affidavit on record it has failed to produce the same.

2 of 6 Company Appeal (AT) (Ins) No. 608 & 609 of 2025

8. In view of the discussions made above, the Resolution Plan did not meet the requirements of Section 30(2)(d) of IBC, 2016 r/w the IBBI Regulations for the following reasons:

a) non-fulfilment of requirements regarding "feasibility and viability of the Plan' under Regulation 38(3)(b) and

b) non fulfilment of provisions related to its effective implementation under Regulation 38(3)(c) of CIRP Regulations, 2016.

9. Accordingly, we are of the considered opinion that the Resolution Plan violates various regulations given under the IBBI (Insolvency Resolution Process for Corporate Persons) 2016 as discussed above. Consequently, in accordance with the proviso of Section 31 (1) of the IBC, 2016 the proposed Resolution Plan cannot be approved as the requirement of Section 30 (2) (d) read with Regulation 38 (3)(b) and Regulation 38 (3)(c) has not been complied with. We therefore, deem it appropriate for Resolution Professional to address the abovementioned shortcomings and place it before the COC for reconsideration and resubmission of the Plan after satisfying the parameters so laid down.

10. Thus in view of the above-mentioned directions, we hereby remand back the Resolution Plan before the CoC for fresh consideration. Resultantly, the present application IA/4291/ND/2024 is partly allowed consequently IA /2473/2020 stands dismissed."

4. The appeal was filed by the appellant on 15.04.2025 challenging the

order of 27.03.2025 when the appeal came for consideration this Tribunal

passed an order on 08.05.2025 which is to the following effects:-

"O R D E R (Hybrid Mode) 08.05.2025: Ld. Counsel for the appellant submits that in view of the order dated 27.03.2025 passed by adjudicating authority the resolution professional was under obligation to consider the short comings in the plan and place before the CoC for reconsideration.

2. It is submitted that appellant asked for 15 days' time to submit addendum which was denied whereas the request for 3 of 6 Company Appeal (AT) (Ins) No. 608 & 609 of 2025 other PRAs were accepted. It is submitted that order did not permit the RP to invite plans from others PRA and direction was only to reconsider the plan submitted by the appellant.

3. We find substance in the submission of the appellant, direction in paragraph 9 of the adjudicating authority was to reconsider the plan submitted by the appellant reflecting on the short comings in the plan as referred to in the impugned order.

4. Thus the RP and CoC was entitled to consider the plan of the appellant and at that stage it was not required to consider plans of other.

5. RP submits that in event the appellant submits an addendum as requested by the appellant within 10 days from today. The same shall be placed before the CoC for considering.

6. Counsel for the appellant submits that it shall submit the addendum as was asked by the RP addressing the short comings in the earlier plan. The RP shall place the plan of the appellant with addendum for reconsideration.

7. We make it clear that after the consideration of the plan of the appellant any further steps be taken.

8. Counsel for the RP submits that he does not propose to file any reply.

9. CoC has filed the short affidavit. CoC is permitted to file a detailed affidavit of reply within two weeks.

10. List this appeal on 27.05.2025."

5. After the order dated 08.05.2025 the appellant submitted an addendum

to his resolution plan and the said addendum came for consideration before

the 20th CoC Meeting held on 23.05.2025, 24.05.2025 & 25.05.2025 and the

CoC with 100% vote share rejected the resolution plan submitted by the

appellant. The CoC thereafter proceeded and approved another resolution

plan and RP has filed an application for approval of the resolution plan before

4 of 6 Company Appeal (AT) (Ins) No. 608 & 609 of 2025 the Adjudicating Authority being I.A. No. 42 of 2025 which is pending

consideration.

6. Ld. Counsel for the appellant challenging the impugned order submits

that the impugned order only permitted the CoC to consider the resolution

plan of the appellant alone and there was no jurisdiction in the CoC to

proceed to invite other plans and approve another resolution plan. It is

submitted that the CIRP timeline has already come to an end.

7. Ld. Counsel for the RP and the CoC submitted that after Committee of

Creditors considered the plan of the appellant and having not approved with

100% vote share it was in the power of CoC to proceed further to approve

another resolution plan for resolution of the corporate debtor and plan having

already been approved by the CoC and plan approval application have been

filed before the Adjudicating Authority, being 42 of 2025 which is pending

consideration and the remedy of appellant, if any, is to file appropriate

objections before the Adjudicating Authority. It is submitted that order

impugned has already been given effect to by the CoC and the appeal has

become infructuous.

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

records.

9. In so far as direction issued in paragraph-9 which was for consideration

of the plan of the reconsideration of the plan of the appellant that part has

already been taken care by the CoC and the minutes of the 20th CoC meeting

has already been brought on the record by means of an affidavit by the 5 of 6 Company Appeal (AT) (Ins) No. 608 & 609 of 2025 Resolution Professional. In so far as the impugned order is concerned the

Adjudicating Authority having given opportunity to the appellant to file an

affidavit which has been noticed in para-7 & 8, the directions issued in para-9

are in accordance with law and we do not find any error in the directions

issued in para-9. In so far as submission of the appellant that subsequent

approval of plan by the CoC after the 20th CoC meeting is not in accordance

with law the said issue need not to be considered in this appeal and ends of

justice be served in giving liberty to the appellant to file an objection in the

plan approval application IA No. 42 of 2025, it is for the Adjudicating

Authority to consider and take appropriate decision.

10. We, however, make it clear that we are not expressing any opinion on

the steps taken by Committee of Creditors after rejection of the plan of the

appellant and it is for the Adjudicating Authority to consider all aspects of the

matter and take decision in accordance with law. In so far as the submission

of the counsel for the appellant regarding order dated 08.05.2025, that order

was only interim order permitting the Committee of Creditors to consider the

plan of the appellant which cannot be read any expression of any opinion. We

do not find any ground to interfere with the impugned order. With the

observations made as above, appeal is disposed of.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) harleen/NN

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