Prole Hotels Pvt Ltd Through Erstwhile ... vs The Greater Bombay Cooperative Bank Ltd ...

Prole Hotels Pvt. Ltd. Through Erstwhile Director Sh. Vijay Kumar Kashinath Fadke ....Appellant

Vs

The Greater Bombay Co-operative Bank Ltd. & Ors. ....Respondents

Present: For Appellant: Mr. Praveen Jha and Mr. Mrinal Kumar Sharma, Advocates. For Respondents: Mr. Shantanu Singh and Mr. Rishabh Shah, Advocates for R-1. Mr. Vijay Lulla, Advocate for RP. Mr. Akash Sinha, Advocate for RA. Ms. Anju Bhansali, Advocate for CoC.

ORDER

(Through Virtual Mode)

16.12.2020: Resolution Plan in the Corporate Insolvency Resolution Process

of the Corporate Debtor - 'Parole Hotels Pvt. Ltd.' came to be approved in terms

of order dated 6th October, 2020 passed by the Adjudicating Authority (National

Company Law Tribunal), Mumbai Bench subject to submission of additional

affidavit for acceptance of the modifications in the Resolution Plan and other

information in terms of the directions in the order. The impugned order has

been assailed by the Corporate Debtor through one Vijay Kumar Kashinath

Fadke, claiming to be the erstwhile Director of the Corporate Debtor primarily

Cont'd..../ -2-

on the ground that the Appellant was prepared to pay the outstanding dues and

the Resolution Process culminating in the passing of impugned order is in

consequence of connivance between the Resolution Professional and the

Financial Creditor.

2. Heard learned counsel for the Appellant. We find that the Committee of

Creditors has approved the Resolution Plan with 100% voting which has been

approved by the Adjudicating Authority subject to the requirement of filing of an

additional affidavit as indicated above. We are told by learned counsel

representing Committee of Creditors that the condition has been met and the

additional affidavit has been filed.

3. The decision in regard to approval of Committee of Creditors being a

business decision based on commercial wisdom of the Committee of Creditors is

not amenable to judicial review. This is the settled position of law. That apart,

the endeavours on the part of learned counsel for the Appellant to demonstrate

that it has made efforts to settle the dues of the Financial Creditor, with reference

to the documents on record, fail to impress this Appellate Tribunal as there is

ample proof on record to demonstrate that the Adjudicating Authority was

approached at the time when the Corporate Insolvency Resolution Process was

at an advanced stage and it had permitted the Appellant to take immediate steps

for settlement of the claim of the Financial Creditor. This is clearly borne out by

Company Appeal (AT) (Insolvency) No. 1071 of 2020 -3-

the order passed by the Adjudicating Authority on 27th June, 2019 which forms

Annexure-10 at page 116 of the appeal paper book. The Resolution Plan came

to be approved more than three months thereafter. There is nothing

demonstrable on record that the Appellant has taken any steps to settle the claim

of the Financial Creditor, though Financial Creditor had expressed its

willingness to withdraw the cases filed by it against the Appellant/Corporate

Debtor provided its claim was satisfied and payment was made as per Recovery

Certificate. This emerges from the communication forming page 120 of the

appeal paper book.

4. In this factual background, we find that no ground across the ambit of

Section 61(3) of I&B Code demonstrating any material irregularity in the

Corporate Insolvency Resolution Process is made out for interference. There is

no merit in this appeal. The same deserves to be dismissed. Accordingly, the

appeal is dismissed. However, there shall be no order as to costs.

[Justice Bansi Lal Bhat] Acting Chairperson

[Justice Anant Bijay Singh] Member (Judicial)

[V. P. Singh] Member (Technical) am/gc

Company Appeal (AT) (Insolvency) No. 1071 of 2020