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Judgment
The Resolution Professional of Nectar Prints Private Limited (“Corporate Debtor”), Mrs. Neeraja Kartik (“Resolution Professional” / “Applicant”), has filed an Application bearing IA (IBC) (PLAN) No. 105/2025 in CP(IB) No. 2981/2019 seeking approval of Resolution Plan dated 17.02.2025, resubmitted on 07.03.2025 by the Successful Resolution Applicant, Xpress Art (“SRA”) in terms of Section 31 of the Insolvency and Bankruptcy Code, 2016 (“Code”) after the approval of Committee of Creditors (“CoC”) of the Corporate Debtor with 95.70% at the 8th CoC meeting dated 21.03.2025.
The CIRP of the Corporate Debtor was initiated vide this Tribunal’s order dated 09.05.2024 and Mr. Milind Kasodekar, was appointed as the Interim Resolution Professional (“IRP”).
As per Regulation 6 of the CIRP Regulations, the Applicant made a public announcement vide Form A on 21.05.2024 notifying the commencement of CIRP of the Corporate Debtor and inviting the claims of Creditors. The last date of submitting the claims was 01.06.2024. The IRP received one claim from the Financial Creditor before the last date of submission of claims and two claims after the expiry of the last date of submission of claims. The IRP collated and verified the claims for constituting the CoC. Thereafter the IRP submitted the report certifying the constitution of CoC and the same was taken on record by this Tribunal vide order dated 10.06.2024.
At the 1st CoC meeting, held on 12.06.2024 the IRP was replaced and CoC appointed Mrs. Neeraja Kartik as Resolution Professional. This Tribunal vide order 7.08.2024 allowed the said IA allowing Mrs. Neeraja Karthik as Resolution professional. The order was intimated to the Applicant on 16.08.2024.
In the 3rd CoC meeting on 09.09.2024, the Applicant informed that the financial statements of the year 2018-20219, the land of factory premises was auctioned prior to the admission of CIRP and the remaining assets consisting of the plant and machinery needs to be valued. The claims of the Cosmos Bank will be treated as secured since the Bank has secured loan against the land, current assets and machinery.
The Form G was published on 12.09.2024 inviting Expression of Interest (“EoI”) from prospective Resolution Applicants (“PRA”) in Freepress Journal and Navshakti and the last date for submission was 27.09.2024. PRA list was issued on 30.09.2024 and final list of PRA was issued on 12.10.2024. Further the Information Memorandum and evaluation matrix was provided on 16.10.2024. The last date for submission of Resolution Plan was 16.11.2024.
The Applicant received two EOIs, however, only one Resolution Plan from one of the Resolution Applicant being Mr. Gauta Fatehpuria was received on 22.11.2024 i.e. after the expiry of the period.
During the period Applicant received the valuation of assets from two registered valuers (i) Fidem Corporate Advisors LLP and (ii) Gtech Valuers Pvt Ltd. Considering the Valuation Report the Applicant informed the CoC members that due to pending litigation on the land and building of the Corporate Debtor, such property is not marketable, hence the value of the same is NIL by both the registered valuers.
In the 6th CoC meeting on 10.12.2024, it was informed that the 180 days of the CIRP ended on 13.11.2024. Considering the delay in appointment of the RP, CoC voted for 90 days extension. The Applicant have filed an Interlocutory Application 5329 of 2025 seeking extension of 90 days beyond 180 days. This Bench vide order dated 19.11.2025 allowed the extension in IA 5329 of 2025.
Further, The CoC members rejected the Resolution Plan of Mr. Gautam Fatehpuria with 100% voting. Since the resolution plan received did not meet the expectations of the CoC, the CoC resolved to issue fresh Form G inviting EOI and CoC agreed to set Performance Bank Guarantee for the Resolution Plan at 10% of the value of the Resolution Plan. Accordingly, the Applicant issued fresh Form G on 18.12.2024 inviting fresh EoIs.
In the 7th CoC meeting on 04.03.2025 Applicant informed that on 21.02.2025 the RP received plans along with EMD amount from two PRA’s Mr. Gautam Fatehpuria and Xpress Art. Further, the RP also received claims from the Department of Goods and Sales Tax (GST) amounting to 18,67,723/-.
In the 8th CoC meeting held on 13.03.2025, the Resolution Applicant Xpress Art had given an increased bid value of Rs. 51 Lakhs in the Bid Process negotiation held on 4.03.2025. After obtaining the confirmation from both the secured financial creditors, the plan will be put to vote from 17.03.2025 to 20.03.2025. The RP has received 29A Compliance Report for Resolution Applicant and shared the evaluation matrix with the CoC members. Accordingly, the Resolution Applicant Xpress Art received more marks as per the Evaluation Matrix and further the Resolution approving the Resolution Plan was passed with 95.70% of voting in favour of the Resolution Applicant Xpress Art.
The Applicant has placed on record the final Resolution Plan as approved by CoC by way of an Additional Affidavit filed on 04.11.2025.
The salient features of the Resolution Plan:-
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3.4. Objective of the Resolution Plan
3.5.Resolution Applicant has an intention to re-start the operations of the Corporate Debtor after taking over the Corporate Debtor's business in entirety. The Resolution Applicant understands the business of the Corporate Debtor since the Resolution Applicant is also in the same business viz. Printing, Binding, Advertisement etc.
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7.3.The RP has confirmed that the entire CIRP Cost of Rs. 16,00,000/- (Rupees Sixteen Lakh Only) has been approved by the CoC and the Resolution Applicant undertakes that the said CIRP Cost shall be paid in priority and in accordance with Section 30 (2) (a) of the Code. No further amount, other than Rs. 16,00,000/- (Rupees Sixteen Lakh Only) is payable towards the CIRP Cost.
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9. Schedule for implementation & Term
Indicative Schedule for Implementation of the Resolution Plan Activity Timeline (days) PHASE I- APPROVAL PROCESS OF THE PROPOSED RESOLUTION PLAN 1. Submission of Resolution Plan to the CoC X 2. Payment of Performance Security as per RFRP X 3. Approval of Resolution Plan by the CoC X+15 4. Issue of Letter of Intent (“Lol”) by the RP X+16 5. Acceptance of Lol by Resolution Applicant X+17 6. Application by the RP to the NCLT X+20 7. Approval by the NCLT (‘Effective date’) E PHASE II-MONITORING COMMITTEE 8. Constitution of the Monitoring Committee E 9. RP to obtain Certified True Copy and File INC-28 E+3 10. Reconstitution of the Board of Directors of Corporate Debtor E+10 11. Intimation by RP to the CoC, IBBI, Tax authorities, BMC and various other statutory authorities (as applicable) E+10 12. Intimation to Existing Shareholders about extinguishment / cancellation of their shares E+10 13. Intimation to all the creditors and other stakeholders of the Company E+10
14. Allotment of Shares to Representatives of Resolution Applicant E+10 PHASE III-SETTLEMENT OF CREDITORS 15. Payment of CIRP Costs as approved by CoC E+15 16. Payment to Secured Financial Creditors E+25 17. Payment to Operational Creditors E+20 18. Payment to Dissenting Creditors E+20 19. RP to handover all assets & properties of Corporate Debtor to Resolution Applicant E+25 Term of Resolution Plan: The term of Resolution Plan shall start from the Approval of Resolution Plan by the NCLT, Mumbai Bench, under Section 31 of the Code and the Resolution Applicant provides for payment of dues with 30 days from the approval of the Resolution Plan ("Effective Date").
Notes:
"X" is presumed date of Presentation of Resolution Plan to the CoC.
"E" is presumed date of approval by the NCLT ('Effective date').
The above timelines are based on the assumption that all the relevant and necessary approvals will be obtained in timely manner, however, any delay in obtaining the same, may affect the assumed timeline mentioned above.
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11. Mandatory Contents of the Resolution Plan
Mandatory Contents of the Resolution Plan as per Regulation 38 of the CIRP Regulations are as under:
Sr. No. Regulation 38 Particulars Clause of Resolution Plan 1. (1) 'The Amount due to the Operational Creditors under a Resolution Plan shall be given priority in payment over financial creditor 7.34 to 7.39 2. (1A) Statement as to how it has dealt with the interests of all stakeholders, including Financial Creditors and Operational Creditors of the Corporate Debtor 7 and 9 3. (1B) Statement giving details if the Resolution Applicant or any of its Related Parties has failed to implement or contributed to the failure of implementation of any other Resolution Plan by the Adjudicating Authority at any time in the past. 7.61 and 7.62 4. (2)(a) Term of the plan and its implementation schedule 9 5. (2)(b) Management and control of the business of the Corporate Debtor during its term 7.44 6. (2)(c) Adequate means for implementation 10 7. (3)(a) Addresses the cause of default 5 8. (3)(b) Feasibility and Viability 7.49 and 7.50 9. (3)(c) Provisions for its effective implementation 10
10. (3)(d) Provisions for approvals required and the timeline for the same 11. (3)(e) Resolution Applicant has the capability to implement the Resolution Plan. 12 12. Sources of Funds
12.1.The Resolution Applicant will bring the funds as below:
12.1.1. Resolution Plan amount-Own Sources
12.1.2.Additional Amount of investment or expenditure - Either from Own sources or as decided by the New Management of the Company
12.2.The Resolution Applicant is having adequate financial strength and at present no additional loan or credit facility is envisaged or planned for the corporate debtor.
12.3.The Resolution Applicant has already deposited an amount of Rs. 5,00,000/- (Rupees Five Lakh Only) at the time of submission of the Eol and in addition thereto, the Resolution Applicant is now submitting a cheque of Rs. 10,00,000/- (Rupees Ten Lakh Only) as EMD for performance. In the event of expiry of validity of this cheque, the Resolution Applicant undertakes to hand over a fresh cheque against the stale/ outdated cheque.
12.4.Once the Resolution Plan is approved by the Adjudicating Authority, the amounts already paid by the Resolution Applicant shall be adjusted and considered as contribution of the Resolution Plan Amount and the Resolution Applicant shall thereafter be required to infuse the balance amount to meet the Resolution Plan amount.
12.5.Details of Settlement of various dues as required under Regulation 38 of Insolvency Resolution Process for Corporate Persons Regulations, 2016:
Sr. No. Category of Dues Name of the Creditors Debt Amount (Rs) Settlement Amount (Rs) Structure Remarks 1. Corporate Insolvency Resolution Process Cost Interim Resolution Professional/ Resolution 16,00,000 16,00,000 Entire CIRP cost will be paid in priority 2. Secured Financial Creditors As mentioned in this plan 28,20,48,651.60 34,00,000 This will be paid as per Clauses 7.18 to 7.25 3. Unsecured Financial Creditor Not Applicable since no claims received Nil Nil This will be as per Clause 7.26 to 7.29 4. Operational Creditors (other than Statutory Authorities) As mentioned in this plan 27,70,285 Nil This will be paid as per Clause 7.34 to 7.39 5. Operational Creditors (Statutory Authorities) As mentioned in this plan 18,67,723 1,00,000 6. Employees and Workmen Not Applicable since no claims received Nil Nil This will be as per clause 7.30 to 7.33 [Total Infusion of Funds towards Resolution Plan Amount Rs. 51,00,000/- (Rupees Fifty One Lakh Only)]
19. Statutory Compliance:
In compliance of Section 30(2) of IBC, 2016, the Resolution Professional has examined the Resolution plan of the Successful Resolution Applicant and confirms that this Resolution Plan:
Provides for payment of Insolvency Resolution Process cost in a manner specified by the Board in the priority to the payment of other debts of the corporate debtor;
Provides for payment of debts of Operational Creditor in such manner as may be specified by the board which shall not be less than
i. the amount to be paid to such creditors in the event of liquidation of the Corporate Debtor under Section 53; or ii. the amount that would have been paid to such creditors, if the amount to be distributed under the Resolution Plan had been distributed in accordance with sub-section (1) of Section 53 in the event of liquidation of the corporate debtor.
Provides for management of the affairs of the Corporate Debtor after approval of Resolution Plan;
The implementation and supervision of Resolution Plan;
Does not prima facie contravene any of the provisions of the law for time being in force,
Confirms to such other requirements as may be specified by the Board.
As per the Affidavit, the Resolution Applicant is not covered under 29A.
In compliance of Regulation 38 of CIRP Regulations, the Resolution Professional confirms that the Resolution plan provides that
The amount due to the Operational Creditors under Resolution Plan shall be given priority in payment over Financial Creditors.
It has dealt with the interest of all Stakeholders including Financial Creditors and Operational Creditors of the Corporate Debtor.
A statement that neither the Resolution Applicants nor any related parties have failed to implement nor have contributed to the failure of implementation of any other Resolution Plan approved by the Adjudicating Authority in the past.
The terms of the plan and its implementation schedule.
The management and control of the business of the Corporate Debtor during its term.
Adequate means of Supervising its implementation.
The Resolution Plan Demonstrates that it addresses
The cause of the Default ii. It is feasible and viable iii. Provision for effective implementation iv. Provisions for approvals required and the time lines for the same.
Capability to Implement the Resolution Plan
The Resolution Professional has filed Form-H on 12.11.2025 before this Tribunal under Regulation 39(4) of the CIRP Regulations to certify that the Resolution Plan as approved by the CoC meets all the requirements of the IBC and its Regulations, the relevant parts of which are reproduced below:
FORM H
COMPLIANCE CERTIFICATE
(Under Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016
I, CA Neeraja Kartik, an insolvency professional enrolled with Indian Institute of Insolvency Professionals of ICAI and registered with the Board with registration number IBBI/1PA- 001/IPP01445/2018-2019/12137, am the resolution professional for the corporate insolvency resolution process (CIRP) of Nectar Prints Private Limited.
IA. The details of the CIRP are as under:
Sr No Particulars Description 1 Name of the CD Nectar Prints Private Limited 2 Date of Initiation of CIRP 01/07/2019 3 Date of Appointment of IRP 09/05/2024 4 Date of Publication of Public Announcement 21/05/2024 S Date of Constitution of CoC 10/06/2024 6 Date of first Meeting of CoC 12/06/2024 7 Date of Appointment of RP 07/08/2024 8 Date of Appointment of Registered Valuers 24/09/2024 9 Date of Issue of Invitation for EoI (la case of multiple issuance of EoI, please specify all such dates) 12/09/2024 18/12/2024 (Reissue of Form G) 10 Date of Final List of Eligible Prospective Resolution Applicants 05/01/2025 11 Date of Invitation of Resolution Plan 17/01/2025 12 Last Date of Submission of Resolution Plan 21/02/2025 13 Date of submission of Resolution Plan to the RP 07/03/2025 14 Date of placing the Resolution Plan before the CoC 13/03/2025 15 Date of Approval of Resolution Plan by CoC 19/03/2025 16 Date of Filing of Resolution Plan with Adjudicating 05/05/2025
Authority 17 Date of Expiry of 180 days of CIRP 28/12/2024 18 Date of each order extending/excluding the period of CIRP on request filed by RP- court order is pending 07/01/2025 19 Date of Expiry of Extended Period of CIRP 19/03/2025 20 Fair Value Rs 62,50,000/- 21 Liquidation value Rs 42,06,250/- 22 Number of Meetings of CoC held 8 IB. (i) Whether Application for approval of Resolution Plan filed within 180 days of CIRP initiation -¥/N (ii) Number of days beyond 180 days taken for filing application for resolution plan: 128 Days (iii) Reasons for delays The RP -couldn't get in contact with the Suspended Directors for handover of property, hence there was delay in filing of the application.
2.I hereby certify that- (i) the said Resolution Plan complies with all the provisions of the Insolvency and Bankruptcy Code, 2016 (IBC/Code), the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations) and does not contravene any of the provisions of the law for the time being in force, (ii) the Resolution Applicant CA Neeraja Kartik has submitted an affidavit pursuant to section 30(1) of the Code confirming its eligibility under section 29A of the Code to submit resolution plan. The contents of the said affidavit are in order.
(iii)the said Resolution Plan has been approved by the CoC in accordance with the provisions of the Code and the CIRP Regulations made thereunder. The Resolution Plan has been approved by 95.70 % of voting share of financial creditors after considering its feasibility and viability and other requirements specified by the CIRP Regulations.
(iv)The voting was held in the meeting of the CoC on [state the date of meeting] where all the members of the CoC were present.
Or
I sought vote of members of the CoC by electronic voting system which was kept open at least for 24 hours as per regulation 26,
[strike off the part that is not relevant]
3.The details and documents related to the successful resolution applicant are as under:
Sr. No. Particulars Description 1 Name of Successful Resolution Applicant (SRA) Xpress Art 2 Nature of Business of SRA Manufacturing anal Printing Services 3 Relationship status of SRA with CD, ir any Mr. Akram Ali Khan Niyazi, Partner of the Resolution Applicant is brother of Ms. Nazmeen Khatu Abid Ali Shaikh, Director and Shareholder of the Corporate Debtor 4 Whether SRA is eligible to submit plan u/s 240A of IBC in case of MSME CD Yes 5 Due Diligence Certificate of the RP u/s 29A of IBC for the SRA (pls attach copy of certificate) Yes 4.The details of CIRP, and resolution plan are as under:
Sr. No. Particulars Description 1. Whether Corporate Debtor is an MSME, if so, Date of obtaining MSME registration (pls attach copy of registration certificate) 17/02/2016 2. Business of the CD) Manufacturing and Printing Services 3. Total admitted claims (Amount in Rs.) Sr. No. Descriptions Principal Interest and Penalty if any Total Secured Financial Creditor - Cosmos Co-operative Bank Ltd 1,51,37,792.68 25,47,95,002.20 26,99,32,794.88
Secured Financial Creditor— Tata Capital Limited 1,21,15,857.71 Govt Dues State Tax Officer SION Chunabhatti 704, Ghatkoper Division Mumbai) 6,70,034.00 5,92,558.00 12,62,592.00 4. Resolution Plan Value (including insolvency resolution process cost infusion of funds etc) (In the case of real estate CDs, provide the monetary value of flats etc. given to allottees) (pls attach copy of Resolution plan) Rs 51,00,000/- 5. Voting percentage (%) of CoC in favour of Resolution Plan (pls attach copy of minutes approving resolution plan) 95.70% 5.Details of implementation of resolution plan:
S.No Particulars Description 1. Amount of Performance Guarantee furnished by SRA(in Rs.) and its validity (attach document) 20% of Resolution Plan Amount i.e. Rs 10,20,000/- 2. Source of funds (in brief) Owned Funds
3. Capital restructuring and management of CD post approval of resolution plan (in brief including shareholding proposed to be transferred in favor of SRA) Shareholding to be transferred in name of partner Xpress Art. The Suspended Directors will no longer be Directors of CD. Xpress Art to infuse Rs 51,00,000 as 5,10,000 shares of Rs 10 each. Akram Ali Khan Niyazi to hold 75% (3,82,500 Number of Shares) and Ms. Shireen Taj Akram Ali Niyazi to hold 25% of the share (1,27,500 Number of Shares) 4. Term and implementation of plan (in brief) Upon approval of Resolution Plan by the Hon'ble NCLT, the plan is to be implemented within 30 Days from the date of order. 5. Details of monitoring committee (in brief) The Monitoring Committee shall constitute of CA Neeraja Kartik (RP of the Corporate Debtor) and Mr Akram Ali Khan Niyazi (Representative of Resolution Applicant). The Monitoring Committee shall ensure successful Resolution Plan 6. Effective date of resolution plan implementation The Effective Date of implementation of Resolution Plan shall be within 10 days from the Date of approval of Resolution Plan. 6.The list of financial creditors of the CD being members of the CoC and distribution of voting share among them is as under:
Sr. No. Name of Creditor Voting Share (%) Voting for Resolution Plan (Voted for / Dissented / Abstained) 1. The Cosmos Cooperative Bank Limited 95.70 For (Assent) 2. Tata Capital Limited 4.30 Dissent 7A. Realisable amount :-
S.No Particulars Description
1. Total Realisable amount under the plan (In case of real estate CDs, provide the monetary value of Oats etc. given to allottees) Rs. 51,00,000/- 2. Fair Value Rs 62,50,000/- 3. Liquidation Value Ra 42,06,250/- 4. Percentage (%) of realisable amount to Fair Value 82% 5. Percentage (%) of realisable amount to Liquidation Value 121% 6. Percentage (%) of realisable amount to Principal amount 1.8% 7. Percentage (%) of realisable amount to Total admitted claims 1.8% 8. Percentage (%) of realisable amount to Other than admitted Corporate Guarantee claims 9% 9. Steps to be taken by the concerned parties post approval of resolution plan by AA :-
Next Steps Name of Party Timeline The existing Board of Directors shall cease to be Directors. The Partners of Xpress Art shall become Director's of CD. Mr. Akrzni Ali Khan Niyazi to hold 75% and Ms. Shireen Taj Akram Ali Niyazi to hold 25% of the shares. Post Approval of the Plan Payment to Secured Financial Creditors and Operational Creditors, as full and final settlement along with No Dues Certificate to be provided. The Cosmos Co-operative Bank Ltd, 'Tata Capital Limited and State Tax Office Chunabhatti 704 (Ghatkoper Mumbai). Post Approval of the Plan Any charges or due against CD. Immediately upon approval of the Resolution Plan by the Hon'ble NCLT, all the above-mentioned charges, without any further action
and/ or approval, shall be forthwith marked as “satisfied” and necessary entries shall be made in the Register of Charges of the Corporate Debtor 10.Details of Income Tax losses carry forward under Section 79(2)(e) of Income Tax Act, 1961, if any.
- As per last Income Tax Return and Audit Report filed for Assessment Year 2020-21, the losses carried forward are Rs. 10,10,27,387/- and The unabsorbed depreciation is Rs.5,86,51,092/-
11.Amount of Regulatory fee payable (0.25%) to the Board under Regulation 31A that is, Rs.12,750/- and affidavit to the said effect is submitted by the SRA to the Resolution Professional.
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On perusal of the Resolution Plan, we find that the Resolution Plan provides for the following:
Payment of CIRP Cost as specified u/s 30(2)(a) of the Code.
Repayment of Debts of Operational Creditors as specified u/s 30(2)(b) of the Code.
For management of the affairs of the Corporate Debtor, after the approval of Resolution Plan, as specified u/s 30(2)(c) of the Code.
The implementation and supervision of Resolution Plan by the RP and the CoC as specified u/s 30(2)(d) of the Code.
The RP has complied with the requirement of the Code in terms of Section 30(2)(a) to 30(2)(f) and Regulations 38(1), 38(1)(a), 38(2)(a), 38(2)(b), 38(2)(c) & 38(3) of the Regulations.
The RP has filed Compliance Certificate in Form-H along with the Plan. On perusal the same is found to be in order. The Resolution Plan has been approved by the CoC by majority of 95.70%.
The reliefs & concessions set out in the Resolution Plan as “Effect of the Resolution Plan” under clause 8 of the Resolution Plan shall be available in accordance with the principle laid down by Hon’ble Supreme Court in case of Ghanshyam Mishra and Sons Private Limited v/s. Edelweiss Asset Reconstruction Company Limited Civil Appeal No. 8129 of 2019 and Municipal Corporation of Greater Mumbai vs. Abhilash Lal and Ors. (2019) ibclaaw.in 480 NCLAT. Further, it is clarified and ordered that :
a. Any increase in the authorized capital shall be subject to payment of prescribed fee, if any applicable, and filing of prescribed forms with the Registrar of Companies.
b. The Applicant shall file necessary forms and pay prescribed fees, if any, in terms of provisions of the Companies Act, 2013 in relation to reduction in capital and issuance of fresh capital, however, the Registrar of Companies shall waive the additional fees, if any, payable on such filing.
c. The SRA may approach prescribed authorities for waiver/reduction in fees, charges, stamp duty, and registration fees, if any arising from actions contemplated under the Resolution Plan and such request shall be dealt with subject to the relevant law/statute and adherence to the procedure prescribed thereunder.
d. The SRA may file appropriate application, if required, for renewal of all Business Permits, rights, entitlements, benefits, subsidies and privileges whether under applicable Law, contract, lease or license granted in favour of the Corporate Debtor or to which the Corporate Debtor is entitled to or accustomed to, which have expired on the Effective Date, and follow the dues procedure prescribed for the purpose upon payment of prescribed fees. It is clarified that continuance of approvals shall not be refused on account of extinguishment of any dues under IBC and extension or renewal thereof shall not be denied on account of past insolvency of the Corporate Debtor. No action shall lie against the Corporate Debtor for any non-compliances arising prior to the date of approval of Resolution Plan, however, such non-compliances shall be cured, if necessitated to keep the approval in force, after acquisition by the Corporate Debtor within period stipulated in the Resolution Plan.
e. No orders levying any tax, demand of penalty from the Corporate Applicant in relation to period up to approval of the Resolution Plan shall be passed by any authority and such demand, if created, shall not enforceable as having extinguished in terms of approved Resolution Plan.
f. The carry forward of losses and unabsorbed depreciation shall be available in accordance with the provisions of Income Tax Act, and the Income Tax Department shall be at liberty to examine the same.
g. An application for compounding/condoning shall be filed in accordance with the procedure specified in respective law or concerned authority, however, no fine or penalty shall be imposed for non-compliances till the date of approval of this Plan or such further period as is permitted in terms of this Order.
h. ROC shall update the records and reflect the Corporate Applicant as ‘Active’ upon filing of pending returns/forms after payment of normal fees (not additional fee). In case such filing is not permitted by the e-filing portal, the ROC shall accept such forms/returns in physical format and manage to upload the same by back-end. The Corporate Applicant shall be exempted from using the words “and reduced”.
The Compliances under the applicable law for all the statutory appointments by the Corporate Applicant shall be completed within 12 months, whereafter, the necessary consequence under respective law shall follow.
j. The Resolution Applicant, the Corporate Debtor and the assets of the Corporate Debtor forming part of Resolution plan shall have immunity, privileges and protection as is available in the form and manner stated in Section 32A of the Insolvency and Bankruptcy Code, 2016.
k. It is clarified that any relief, concession or waiver, not specifically dealt with in Para 25(a) to (j) above or not permissible in terms of decision in case of Ghanshyam Mishra (supra) and Abhilash lal (Supra) or specific provisions of the Code read with the Regulations, shall be deemed to be denied or rejected.
In K Sashidhar v. Indian Overseas Bank & Others (in Civil Appeal No.10673/2018 decided on 05.02.2019) the Hon’ble Apex Court held that if the CoC had approved the Resolution Plan by requisite percent of voting share, then as per Section 30(6) of the Code, it is imperative for the Resolution Professional to submit the same to the Adjudicating Authority (NCLT). On receipt of such a proposal, the Adjudicating Authority is required to satisfy itself that the Resolution Plan as approved by CoC meets the requirements specified in Section 30(2) of the Code. The Hon’ble Apex Court further observed that the role of the NCLT is ‘no more and no less’. The Hon’ble Apex Court further held that the discretion of the Adjudicating Authority is circumscribed by Section 31 of the Code and is limited to scrutiny of the Resolution Plan “as approved” by the requisite percent of voting share of financial creditors. Even in that enquiry, the grounds on which the Adjudicating Authority can reject the Resolution Plan is in reference to matters specified in Section 30(2) of the Code when the Resolution Plan does not conform to the stated requirements.
In view of the discussions and the law thus settled, the instant Resolution Plan meets the requirements of Section 30(2) of the Code and Regulations 37, 38, 38 (1A) and 39 (4) of the CIRP Regulations. The Resolution Plan is not in contravention of any of the provisions of Section 29A of the Code and is in accordance with law. The same needs to be approved. Hence, ordered.
Order:
The Resolution Plan is hereby approved. It shall become effective from this date and shall form part of this order with the following directions:
It shall be binding on the Corporate Applicant, its employees, members, creditors, including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force is due, guarantors and other stakeholders involved in the Resolution Plan. ii. The approval of the Resolution Plan shall not be construed as waiver of any statutory obligations/liabilities of the Corporate Applicant and shall be dealt by the appropriate Authorities in accordance with law. Any waiver sought in the Resolution Plan, shall be subject to approval by the Authorities concerned in light of the Judgment of Supreme Court in Ghanshyam Mishra and Sons Private Limited v/s. Edelweiss Asset Reconstruction Company Limited, the relevant paragraphs of which are extracted herein below:
“95.(i) 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 Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the adjudicating authority, all such claims, which are not a part of the resolution plan shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan;
(ii)2019 Amendment to Section 31 of the I&B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which the Code has come into effect;
(iii)consequently, all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the adjudicating authority grants its approval under Section 31 could be continued.”
The Memorandum of Association (“MoA”) and Articles of Association (“AoA”) shall accordingly be amended and filed with the Registrar of Companies (“RoC”), Mumbai, Maharashtra for information and record. iv. The Successful Resolution Applicant, for effective implementation of the Resolution Plan, shall obtain all necessary approvals, under any law for the time being in force, within such period as may be prescribed. It is clarified that the authorities shall not withhold the approval/consent/extension for the reason of insolvency of the Corporate Applicant or extinguishment of their dues upto approval of Resolution plan in terms of the approved plan. Any relief or concession as sought on the plan shall be subject to the provisions of the relevant Act.
The moratorium under Section 14 of the Code shall cease to have effect from this date.
The Applicant shall supervise the implementation of the Resolution Plan and file status of its implementation before this Authority from time to time, preferably every quarter. vii. The Applicant shall forward all records relating to the conduct of the CIRP and the Resolution Plan to the IBBI along with copy of this Order for information. viii. The Applicant shall forthwith send a certified copy of this Order to the CoC and the Resolution Applicant, respectively for necessary compliance.