The Mumbai Bench of the National Company Law Tribunal ( NCLT ) observed that Resolution Professional is accountable for his biased conduct.
The present Application was preferred by the Bank of India, one of the members of CoC with a prayer to declare the plan submitted by the suspended director of Corporate Debtor, Mr. Ankit Wadhwa as void-ab-initio on the ground of his being ineligible in terms of Section 29A of IBC being a ‘wilful defaulter’. The prayer is also made against the conduct of the RP attributing malafide to him and in view of the same for initiating appropriate proceedings and suspending his license.
While elaborating the first contention that the Respondent No 6 i.e. SRA was ineligible being a wilful defaulter on the date of the submission of the Plan, the counsel contended that the Corporate Debtor was admitted to CIRP on 28.07.2020. Respondent No. 6 submitted his Plan on 21.01.2021 which was submitted before the COC on 25.03.2021 for approval. This Plan was neither opened nor discussed or voted in any of the COC meetings.
It was noted that the COC did not take into consideration this plan, as substantial time had elapsed and many circumstances had changed during the pendency of this prospective Plan with respect to the claims, intrinsic value of the project, estimated cost escalation etc. etc. which directly or indirectly affected the Resolution Plan amount.
The Counsel for the Applicant while emphasizing on the ineligibility of the Resolution Applicant submitted that it is Respondent No. 6 the SRA because of whose misdeeds (Along with others) led to the admission of the CD into CIRP. Now despite being a wilful defaulter he cannot be permitted to submit a resolution Plan. This otherwise would lead to extending a benefit to a wrong doer at whose behest the Corporate Debtor has suffered and is made to undergo CIRP and also the homebuyers had to suffer.
A Two-Member Bench comprising Madhu Sinha, Member (Technical) and Reeta Kohli, Member (Judicial) observed that “Thus it is this date i.e. 11.11.2022 which is material so as to check the eligibility of the Resolution Applicant under Section 29A of the Code and in the present case the Resolution Professional withheld the information of the eligibility of the Resolution Applicant from the COC as the plan of the RA may not have been approved by the COC. If the factum of his having being declared as a ‘wilful defaulter’ had come to the knowledge of the COC. Hence, the requisite information was withheld from the COC.”
“With respect to the conduct of the Respondent No. 1/RP we wish to state that being an RP is an onerous responsibility and RP is expected to conduct himself in an unbiased and responsible manner as he is an officer of the Court but in the present case the RP during the entire proceedings was steering the COC proceedings in such a way so as to achieve the objective of getting the Plan of Respondent No. 6 approved” the Tribunal noted.
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