dba9cedfd0eca18fe31d25c4764a13b6

Per: Balraj Joshi, Member (Technical)

This Court convened through hybrid mode.

I.A. (IB) No. 980/KB/2022 is an application under section 30(6) of the Insolvency and Bankruptcy Code, 2016, after approval of the resolution plan by the Committee of Creditors (“CoC”).

This application was filed by Mr. Kamal Nayan Jain, Resolution Professional of Sampark Land and Builders Private Limited (CIN: U70109WB2011PTC157021), by invoking the provisions of section 30(6) of the Insolvency and Bankruptcy Code, 2016 (“the Code” or “IBC”) read with regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (“CIRP Regulations”) for approval of a Resolution Plan in respect of Sampark Land and Builders Private Limited (“Corporate Applicant”).

The underlying Company Petition in C.P. (IB) No. 888/KB/2020 was filed by Sampark Land and Builders Private Limited, the Corporate Applicant, under section 10 of the Insolvency and Bankruptcy Code 2016, which was admitted vide order dated 30 April 2021.

Initially, Mr. Kamal Nayan Jain, the Applicant herein (IBBI Reg. No. IBBI/IPA/P00029/2016-2017/10065) was appointed as the Interim Resolution Professional (IRP). Subsequently, the CoC in it’s 1^st CoC meeting held on 31 May 2021 resolved to appoint the Interim Resolution Professional as the Resolution Professional. The Applicant was appointed as the Resolution Professional (RP) of the Corporate Applicant vide order dated 15 July 2021.

The period of 180 days i.e. from 01.05.2021 to 30.07.2021 vide order dated 27 October 2021 in I.A. (IB) No. 912/KB/2021, period of 89 days i.e. from 01.12.2021 to 228.02.2022 vide order dated 09 March 2022 in I.A.(IB) No. 205/KB/2022 and and period of 45 days vide order dated 26 July 2022 in I.A.(IB) No. 707/KB/2022 were extended and excluded for the purpose of completing the CIRP.

The IRP made public announcement on 04 May 2021 in Financial Express (English) (Kolkata Edition) and Ekdin (Bengali) (Kolkata Edition) newspapers regarding initiation of Corporate Insolvency Resolution Process (CIRP) and called proof of claims from the financial and operational creditors, workers and employees of the Corporate Applicant in the specified forms.

The CoC was constituted on 24 May 2021 with one Financial Creditor i.e., Aneel Saroagi (authorised representative for class of creditors). A report of the constitution of the CoC was filed before the Adjudicating Authority.

The Applicant states that a total of seven CoC meetings have been held during CIRP period, as follows:

The amounts claimed and admitted are summarised below:

Amount in INR

The Applicant submits that in terms of the provisions of section 25(2)(h) of the Code read with regulation 36A(1) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, invitations in Form ‘G’ for Expressions of Interest (EoI) from potential resolution applicants were issued five times, firstly on 12 July 2021 in Financial Express (English) and Ek Din (Bengali) newspapers of Kolkata edition then on 25 August 2021, 04 October 2021, 24 February 2022 and 17 June 2022. The last date of receipt of EoI was 24 June 2022.

The notice was also published on the website of the Insolvency and Bankruptcy Board of India (IBBI).

The Applicant submits that in response to the invitation for EoI published on 17 June 2022, three EoIs were received The provisional list of Prospective Resolution Applicants was issued on 25 June 2022 and the final list of Prospective Resolution Applicants was issued on 30 June 2022. The RP then shared the Information Memorandum, Evaluation Matrix and Request for Resolution Plan (RFRP) with the Prospective Resolution Applicants on 25 June 2022.

Three Resolution Plans were received, but only the Resolution Plan submitted by the Plot Buyers of Baruipur Bloomfield Project was compliant in terms of the provisions of the Code.

As per regulation 35(2) of the CIRP Regulations, after receipt of the Resolution Plan, the RP informed the fair value and liquidation value of the Corporate Debtor to the CoC.

The Resolution Plan was placed for discussion before the CoC in the 7^th CoC meeting held on 22 August 2022. After due discussions, the CoC found the plan to be feasible and viable. Thereafter, the Resolution Professional placed the said Resolution Plan before the CoC for voting. The Resolution Plan was approved on 28 August 2022 through e-voting with 100% voting percentage.

In accordance with regulation 36B(4A) of the CIRP Regulations, the Successful Resolution Applicant has submitted the Performance Bank Guarantee of Rs.1,00,000/- (Rupees One Lakh only) which was submitted as the Refundable Deposit during the submission of EoI and then converted into Earnest Money Deposit and the said Earnest Money Deposit was converted into Performance Bank Guarantee after approval of the Resolution Plan.

The Resolution Plan of the Corporate Applicant is interlinked to two group companies viz. Sampark Land Developers Private Limited and Suryodaya Realtors Private Limited which are under CIRP and similar Resolution Plans have been submitted for both the Companies.

The Applicant has filed a Compliance Certificate in prescribed form, i.e., Form ‘H’ dated 03 September 2022 in compliance with regulation 39(4) of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.^{11.Annexure F of the I.A.}

The Applicant has submitted details of various compliances as envisaged within the Code and the CIRP Regulations which a Resolution Plan should adhere to, which is reproduced hereunder:

The Resolution Applicant has submitted affidavit of eligibility under section 29A of the Code, affirmed on 15 July 2022^{22.Pages 266-278 of the I.A.}.

Clause 18 at Page 55 of the Resolution Plan envisages that the Resolution Applicant may continue to pursue proceedings filed under section 43, 45, 47, 49, 50 or 66 of the Code after approval of the resolution Plan and any cost or expenditure incurred in relation to such proceedings shall be borne by the Corporate Debtor/Resolution Applicant.

The Applicant submits that the Resolution Applicant had filed a Resolution Plan on 15 July 2022.

It is submitted that the Financial Proposal is to be read in conjunction with the Resolution Plan of the Corporate Applicant and the Resolution Plans proposed for its group companies viz. Sampark Land Developers Private Limited and Suryodaya Realtor Private Limited.

The Resolution Applicant, i.e., Plot Buyers of Baruipur Bloomfield Project states that based on the information received from the Resolution Professional, the unpaid CIRP cost till the Effective date is likely to be NIL, according the Resolution Applicant has proposed NIL payment towards unpaid CIRP Cost. In case any CIRP cost is outstanding as on the Effective Date then the Resolution Applicant shall make the payment in full towards the unpaid CIRP Cost from the funds raised through Share Capital Contribution and Cost Escalation Charges from the Existing Plot Buyers within 90 days from the Effective date^{33.Page 40 of the Resolution Plan}.

The Resolution Applicant has proposed to make NIL payment to the stakeholders under the said Resolution Plan. No cash component has been provided under the Resolution Plan, the Resolution Plan offers to complete the project and handover the plots to the allottees.

The Resolution Applicant has proposed to raise funds through the collection of Outstanding Amount Due from Existing Plot Buyers, if any on case-to-case basis, Share Capital Contribution of SPV and Cost Escalation Charges. The said funds raised will be used for execution and completion of Baraipur Bloomfield Project.

The Special Purpose Vehicle that will be formed after approval of the Resolution Plan shall raise funds from the Existing Plot Buyers by charging Cost Escalation Charges as per the following timeline:

The Resolution Plan also provides for –

a. Management of company after resolution in Clause 23 at Pages 59-60 of Resolution Plan.

b. Term of the resolution plan in Clause 22 at Page 59 of Resolution Plan.

c. Implementation and Supervision of the resolution plan in Clause 24 at pages 60-61 of the Resolution Plan.

The three group Companies purchased 139 bighas of land, out of which 120 Bighas is registered and 10 bighas is not yet registered but advance payment for acquiring the said 19 bighas has been made to the seller. The agreement for sale has been entered into in respect of 108-110 Bighas of land. The Corporate Debtor herein between 2011 and till date purchased total of 85.19 bighas land and out of the said 85.19 Bighas, 13.31 Bighas has been registered in the name of the plot buyers. The Resolution Professional Filed a supplementary affidavit stating that the original deed of the registered plot of land being 120 Bighas as well as the possession of the said land is with the Resolution Professional. Further, vide another supplementary affidavit fated 27 December 2022, the Resolution Professional submitted that the remaining 19 Bighas is not yet registered in the name of the Corporate Debtor although advance payment for the same has been made to the seller.

Clause 6.11 at page 35 of the Resolution Plan envisages that the SPV or the Managing Committee of the SPV shall undertake all efforts to carry out the acquisition of the land which are pending to be acquired.

The Reliefs, Exemptions and Waivers sought by the Resolution Applicant from the Adjudicating Authority are set out below for the successful implementation of the Resolution Plan. The orders thereon are indicated against each.

On hearing the submissions made by the Ld. Counsel for the Resolution Professional, and perusing the record, we find that the Resolution Plan has been approved with 100% voting share. As per the CoC, the plan meets the requirement of being viable and feasible for revival of the Corporate Debtor. By and large, all the compliances have been done by the RP and the Resolution Applicant for making the plan effective after approval by this Bench.

On perusal of the documents on record supported by an affidavit of the Resolution Professional, we accord our satisfaction that the Resolution Plan as approved by the CoC, is in accordance with sections 30 and 31 of the IBC and also complies with regulations 38 and 39 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.

We have perused the reliefs, waivers and concessions as sought and as given in Clause 6.11 at page 35 and Clause 25 and Clause 26 at Pages 61-65 of the Resolution Plan. While some of the reliefs, waivers and concessions sought by the Resolution Applicant come within the purview of the Code while many others fall under the power and jurisdiction of different government authorities/departments. This Adjudicating Authority has power to grant reliefs, waivers and concessions only with respect to the reliefs, waivers and concessions that are directly in relation to the Code and the Companies Act 2013 (within the powers of the NCLT), and these are granted keeping in mind the object of the Code. No reliefs, waivers and concessions that fall within the domain of other government department/authorities are granted. The reliefs, waivers and concessions that pertain to other governmental authorities/departments shall be dealt with the respective competent authorities/forums/offices, Government or Semi Government of the State or Central Government with regard to the respective reliefs, waivers and concessions. The competent authorities including the Appellate authorities may consider grant such reliefs, waivers and concessions keeping in view the provisions and spirit of the Code.

The Resolution Applicant shall make necessary applications consistent with extant law to the concerned regulatory or statutory authorities for renewal of business permits and supply of essential services, if required, and all necessary forms along with filing fees etc. and such authority shall also consider the same keeping in mind the provisions and objectives of the Code, which is essentially the resolving of the insolvency of the Corporate Debtor.

The reliefs sought with respect to subsisting contracts/agreements can be granted, and no blanket orders can be granted in the absence of the parties to the contracts and agreements.

With respect to the waivers with regard to extinguishment of claims which arose Pre-CIRP and which have not been claimed are granted in terms of Ghanashyam Mishra and Sons Pvt Ltd v Edelweiss Asset Reconstruction Company Ltd, wherein the Hon’ble Supreme Court has held that once a resolution plan is duly approved by the Adjudicating Authority under sub-section (1) of section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Govt, any State Govt or any local authority, guarantors and other stakeholders. ⁴ 2021 SCC OnLine SC 313 decided on 13.04.2021. In this regard we also rely on the judgement of Hon’ble High Court of Rajasthan in the matter of EMC v. State of Rajasthan wherein it has been inter-alia held that :

With respect to the waivers sought in relation to guarantors, we seek to place reliance on the judgment of Lalit Kumar Jain v Union of India & ors,^{55.2021 SCC OnLine SC 396 decided on 21.05.2021} wherein the Hon’ble Supreme Court held in para 133 that sanction of a resolution plan and finality imparted to it by section 31 does not per se operate as a discharge of the guarantor’s liability shall apply.

With respect to the reliefs and waivers sought for all inquiries, litigations, investigations and proceedings shall be granted strictly as per the section 32A of the Code and the provisions of the law as may be applicable.

As far as the question of granting time to comply with the statutory obligations/seeking sanctions from governmental authorities is concerned, the Resolution Applicant is directed to do the same within one year as prescribed under section 31(4) of the Code.

In case of non-compliance of this order or withdrawal of Resolution Plan, the CoC shall have the right to forfeit the EMD amount already paid by the Resolution Applicant.

Subject to the observations made in this Order, the Resolution Plan is hereby APPROVED by this Bench. The Resolution Plan shall form part of this Order.

The Resolution Plan is binding on the Corporate Debtor and other stakeholders involved so that revival of the Debtor Company shall come into force with immediate effect.

The Moratorium imposed under section 14 shall cease to have effect from the date of this order.

The Resolution Professional shall submit the records collected during the commencement of the proceedings to the Insolvency & Bankruptcy Board of India for their record and also return to the Resolution Applicant or New Promoters.

Certified copy of this Order be issued on demand to the concerned parties, upon due compliance.

Liberty is hereby granted for moving any Application if required in connection with implementation of this Resolution Plan.

A copy of this Order is to be submitted in the Office of the Registrar of Companies, West Bengal.

The Resolution Professional shall stand discharged from his duties with effect from the date of this Order.

The Resolution Professional is further directed to handover all records, premises/factories/documents to the Resolution Applicant to finalise the further line of action required for starting of the operation. The Resolution Applicant shall have access to all the records/premises/factories/documents through the Resolution Professional to finalise the further line of action required for starting of the operation.

IA (IB) No. 980/KB/2022 in CP (IB) No. 888/KB/2020 shall stand disposed of accordingly.

CP (IB) No. 888/KB/2020 to be listed on 11.09.2023 along with the connected I.A.s.

The Registry is directed to send e-mail copies of the order forthwith to all the parties and their Ld. Counsel for information and for taking necessary steps.

Certified copy of this order may be issued, if applied for, upon compliance of all requisite formalities.