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Judgment
Per: Prabhat Kumar, Member (Technical)
The present application is moved by Resolution Professional Mr. Kedar Parshuram Mulye (hereinafter called as “the Applicant”) under section 30 (6) of the Insolvency and Bankruptcy Code, 2016 (“IBC/code”) r/w Regulation 39(4) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 for seeking approval of the resolution plan of Mr. Bhagchand Bhawarlal Maheshwari (hereafter called as the “Successful Resolution Applicant/SRA”) under the provisions of Section 31(1) of the code, for Navdurga Advisory Private Limited (hereinafter called as the “Corporate Debtor”) and for passing order/appropriate direction that this Tribunal may deem fit in the present matter.
The CIRP was initiated against the Corporate debtor vide Order dated 28.03.2023. Mr. Dilipkumar Natvarlal Jagad bearing Registration No. IBBI/IPA-001/IP-P00233/2017-2018/10462 was appointed as the Interim Resolution Professional (hereinafter referred to as the IRP).
The IRP, as mandated under Regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (“CIRP Regulations”) published public announcement in FORM-A dated 29th March, 2023 in Indian Express, Nagpur (English Edition) and Loksatta, Nagpur (Marathi Edition) on 31st March, 2023 as the principle business of the Corporate Debtor was situated at Nagpur, calling upon the creditors of the Corporate Debtor to submit their proof of claim by 12th April, 2023.
Pursuant thereto, IRP received only 2 claims and basis the verification of claims, the IRP admitted the both the claims submitted by the Financial Creditors i.e., M/s. Idea Commercials for an amount of Rs. 71,14,915/- and R. P. Lath & Sons for an amount of Rs. 65,22,006/- and constituted the CoC with the said Financial Creditors being the members of the CoC having 52.17% and 47.83% voting rights respectively.
The Applicant conducted the 1st meeting of the CoC on 20th April, 2023 wherein inter alia the resolution for appointing Mr. Kedar Parshuram Mulye i.e. the Applicant as the Resolution Professional (“RP”) of the Corporate Debtor as per Section 22(2) of the Code was passed by the CoC with 100% voting majority. Thereafter, the an Application for replacement of the IRP was filed before this Tribunal which was approved vide order dated 10th May 2023.
6. The Applicant conducted the 2nd CoC meeting on 19th June, 2023 wherein inter alia following Resolutions were passed by the CoC with 100% voting majority:
1. i. ratifying the appointment of two registered valuers i.e. (i) Mr. Dinesh Kumar Deora and (ii) Mr. Suman Kumar Verma under Regulation 27 of the CIRP Regulations;
2. ii. approving the draft Information Memorandum, Eligibility Criteria of Prospective Resolution Applicant's and Bid Evaluation Matrix which was prepared by the Applicant pursuant to Regulation 36, 36A and 36B of the CIRP Regulations;
3. iii. authorizing the Applicant to publish FORM-G for inviting Expression of Interest from the prospective resolution applicants;
4. iv. authorizing the Applicant to issue the Request for Resolution Plan (“RFRP”) to the eligible resolution applicants.
7. The appointed registered valuers i.e. (i) Mr. Dinesh Kumar Deora and (ii) Mr. Suman Kumar Verma conducted the valuation of the Corporate Debtor for determining the Fair Value and the Liquidation Value and submitted their valuation reports dated 17th June, 2023 and 18th June, 2023 respectively to the Applicant. Pursuant to the resolution passed by the CoC in the 2nd CoC meeting, the Applicant published the FORM-G dated 21st June, 2023 for Inviting Expression of Interest in Nagpur Post (English Edition) and Mahasagar Nagpur (Marathi Edition).
Pursuant to the publication of FORM-G, the Applicant received initial EOI followed by detailed EOI and the Earnest Money Deposit from only one Prospective Resolution Applicant i.e. Mr. Bhagchand Bhawarlal Maheshwari. Subsequently, the Applicant received Resolution Plan dated 13th August, 2023 from Mr. Bhagchand Bhawarlal Maheshwari for the revival of Corporate Debtor as going concern.
The Applicant conducted the 3rd CoC meeting on 21st August, 2023 wherein inter alia the Applicant informed the CoC that only one Resolution Plan was received from Mr. Bhagchand Bhawarlal Maheshwari and the same was opened in front of the CoC and the Prospective Resolution Applicant. Further, the Applicant mentioned that he would provide the summary of the Resolution Plan and requested to place the said Resolution Plan for evaluation and further discussion.
The Applicant conducted the 4th CoC meeting on 29th August, 2023 wherein inter alia the said Resolution Plan was discussed and deliberated in detail. Pursuant to the deliberations, the CoC suggested to place the said Resolution Plan without any modifications and amendments for voting. The voting was held on the same day in the 4th CoC meeting through postal ballot. The CoC resolved and approved the said Resolution Plan by 100% voting majority. The Applicant declared the voting results of the approval of the said Resolution Plan on 30th August, 2023. The copy of the 4th CoC meeting conducted on 29th August, 2023 and is placed as Exhibit I1 and Exhibit-I2 is the copy of the signed ballot paper approving the resolutions for approval of the said Resolution Plan.
Subsequent to the approval of the said Resolution Plan by the CoC, the Applicant issued the Letter of Intent dated 31st August, 2023 to the Successful Resolution Applicant i.e. Mr. Bhagchand Bhawarlal Maheshwari which was duly acknowledged by the Successful Resolution Applicant.
The value of the said Resolution Plan is Rs. 1,75,00,000/- (Rupees One Crore Seventy-Five Lakhs only) which includes the cash payments towards the CIRP cost, payment to IBBI and payment to the Financial Creditors and the summary of payment is enumerated below.
| Sr.No. | Particulars | Amount | Timeline |
|---|
| 1. | Insolvency Resolution Process Cost | Rs. 9.57 lakhs | In priority to all other payments |
| 2. | Payment to IBBI (as per Regulation 31A(1) of the Code) | Rs. 0.36 lakhs | T + 90 days |
| 3. | Operational Creditors – Trade Creditors, Liabilities and Provisions (other than Statutory/Government Dues, Workmen and Employees) | NA | -- |
| 4. | Workmen and Employees Dues | NA | -- |
| 5. | Non-Promoter Shareholders | NA | -- |
| 6. | Financial Creditors including Dissenting Financial Creditors | Rs. 133.16 lakhs | T + 90 days |
| 7. | Introduction of Working Capital to remain in the Company | Rs. 28.7 lakhs |
| TOTAL | Rs. 1.75 crores |
Pursuant to the approval of the said Resolution Plan by the Hon'ble Tribunal, the Equity Shares held by the existing shareholders on the date of the such approval shall be cancelled in the following manner:
Equity shares held by the promoters and the shareholders other than the promoters of the Corporate Debtor shall stand cancelled and no amount shall be payable to such shareholders.
The Successful Resolution Applicant would be allotted 10,000 fresh equity shares of Rs. 10 each for the aggregate amount brought in by them towards the equity capital. The Resolution Applicant reserves the right to vary the composition in equity capital.
The infusion of funds shall be in the following manner:
| Rs. 1,00,000/- by way of Capital | T + 90 days |
| Rs. 1,74,00,000/- | T + 90 days |
It is submitted that pursuant to the successful implementation of the Resolution Plan i.e. upon payment of all the amounts as mentioned hereinabove, the Performance Bank Guarantee for an amount of Rs. 3,00,000/- deposited by the Successful Resolution Applicant shall stand released in favour of the Successful Resolution Plan.
The Successful Resolution Applicant has mentioned that the CIRP cost shall be paid in full as ratified by the CoC and in priority over all other payments. The Successful Resolution Applicant has proposed to pay an amount of Rs. 9.57 lakhs towards the CIRP cost.
The Successful Resolution Applicant has proposed to pay an amount of the following amounts to the Financial Creditors within 3 months from the date of approval of the said Resolution Plan by the Hon'ble Tribunal:
| Sr. No. | Name of the Financial Creditor | Amount admitted by the RP | Amount proposed to be paid by the Successful Resolution Applicant | Timeline |
|---|---|---|---|---|
| 1. | Idea Commercials | Rs. 71,14,915/- | Rs. 71,14,915/- | T + 90 days |
| 2. | R.P.Lath & Sons | Rs. 65,22,006/- | Rs. 65,22,006/- | T + 90 days |
| Total | Rs. 1,36,36,921/- | Rs. 1,36,36,921/- |
There are no dissenting financial creditors. There are no admitted claims of the Operational Creditors (including workmen and employees and statutory dues) thus, the Successful Resolution Applicant proposes to pay Nil amount.
The Applicant submits that the Resolution Plan and the approval of the Resolution Plan are in accordance with all the provisions of the Code and CIRP Regulations and that it does not contravene any of the provisions of the law for the time being. The Successful Resolution Applicant has also confirmed its eligibility under Section 29A of the Insolvency Bankruptcy Code, 2016 ("Code").
The Applicant vide its email dated 31st August, 2023, inter alia has informed the Successful Resolution Applicant that the amount of Earnest Money Deposit for an amount of Rs.3,00,000/- be continued to be held as Performance Bank Guarantee.
Section 30(2) of the Code
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:
- a) 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; - b) 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. - c) Provides for management of the affairs of the Corporate Debtor after approval of Resolution Plan; - d) The implementation and supervision of Resolution Plan; - e) Does not prima facie contravene any of the provisions of the law for time being in force,
f)Confirms to such other requirements as may be specified by the Board.
g)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 CD.
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 AA in the past.
The terms of the plan and its implementation schedule.
The management and control of the business of the CD during its term.
Adequate means of Supervising its implementation.
The Resolution Plan Demonstrate that it addresses
The cause of the Default
It is feasible and viable
Provision for effective implementation
Provisions for approvals required and the time lines for the same.
Capability to Implement the Resolution Plan
The Resolution Professional has annexed Form H of the Application under Regulation 39(4) In FORM H 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.
FORM H COMPLIANCE CERTIFICATE
Under Regulation 39(4) of the Insolvency and Bankruptcy Board of India Insolvency Resolution Process for Corporate Persons Regulations, 2016
2.The details of the CIRP are as under:
Sl. No. Particulars Description 1 Name of the CD Navdurga Advisory Private Limited 2 Date of Initiation of CIRP 28th March, 2023 3 Date of Appointment of IRP 28th March, 2023 4 Date of Publication of Public Announcement 31st March, 2023 5 Date of Constitution of CoC 13th April, 2023 6 Date of First Meeting of CoC 20th April, 2023 7 Date of Appointment of RP 17th May, 2023 8 Date of Appointment of Registered Valuers 24th May, 2023 9 Date of Issue of Invitation for EoI 21st June, 2023 10 Date of Final List of Eligible Prospective Resolution Applicants 13th July, 2023
11 Date of Invitation of Resolution Plan 21st June, 2023 12 Last Date of Submission of Resolution Plan 13th August, 2023 13 Date of Approval of Resolution Plan by CoC 30th August, 2023 14 Date of Filing of Resolution Plan with Adjudicating Authority (estimated) 28th August, 2023 15 Date of Expiry of 180 days of CIRP 24th September, 2023 16 Date of Order extending the period of CIRP NA 17 Date of Expiry of Extended Period of CIRP NA 18 Fair Value Rs. 1,64,09,180.05/- 19 Liquidation value Rs. 1,64,09,180.05/- 20 Number of Meetings of CoC held 4 3.I have examined the Resolution Plan received from Resolution Applicant Mr. Bhagchand Bhawarlal Maheshwari and approved by Committee of Creditors )CoC( of M/s Navdurga Advisory Private Limited.
4.I hereby certify that-
i)(The said Resolution Plan complies with all the provisions of the Insolvency and Bankruptcy Code 2016 )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 Mr. Bhagchand Bhawarlal Maheshwari has submitted an affidavit pursuant to section30)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 CoC which Resolution Plan was approved by 100 % 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 29.08.2023 where all the members of the CoC were present.
5.The list of financial creditors of the CD M/s Navdurga advisory Private Limited being members of the CoC and distribution of voting share among them is as under:
Sl. No. Name of Creditor Voting Share )%( Voting for Resolution Plan )Voted for / Dissented / Abstained( 1 M/s Idea Commercials 52.17 52.17 2 M/s R P Lath & Sons 47.83 47.83 100 100 6.The Resolution Plan includes a statement under regulation 38)1A( of the CIRP Regulations as to how it has dealt with the interests of all stakeholders in compliance with the Code and regulations made thereunder.
7.The amounts provided for the stakeholders under the Resolution Plan is as under:
(Amount in Rs. lakh(
Sl. No. Category of Stakeholder* Sub-Category of Stakeholder Amount Claimed Amount Admitted Amount Provided under the Plan# Amount Provided to the Amount Claimed (%) (1) (2) (3) (4) (5) (6) (7) 1 Secured Financial Creditors (a) Creditors not having a right to vote under sub-section (2) of section 21 NA NA NA NA (b) Other than (a) above: NA NA NA NA (i) who did not vote in favour of the resolution Plan (ii) who voted in favour of the resolution plan Total[(a) + (b)] NA NA NA NA 2 Unsecured Financial Creditors (a) Creditors not having a right to vote under sub-section (2) of section 21 NA NA NA NA (b) Other than (a) above: (i) who did not vote in favour of the resolution Plan NA NA NA NA (ii) who voted in favour of the resolution plan 1,36,36,921 1,36,36,921 1,36,36,921 100
Total[(a) + (b)] 1,36,36,921 1,36,36,921 1,36,36,921 100 3 Operational Creditors (a) Related Party of Corporate Debtor NA NA NA NA (b) Other than (a) above: NA NA NA NA (i) Government (ii) Workmen (iii) Employees (iv) ... Total[(a) + (b)] NA NA NA NA 4 Other debts and dues NA NA NA NA NA Grand Total 1,36,36,921 1,36,36,921 1,36,36,921 100 *If there are sub-categories in a category, please add rows for each sub-category.
Amount provided over time under the Resolution Plan and includes estimated value of non-cash components.
8.The interests of existing shareholders have been altered by the Resolution plan as under:
Sl. No Category of Share Holder No. of Shares held before CIRP No. of Shares held after the CIRP Voting Share )%( held before CIRP Voting Share )%( held after CIRP 1 Equity 28,55,750 Nil 100% Nil 2 Preference NA NA NA NA 9.The compliance of the Resolution Plan is as under:
| Section of the Code / Regulation No. | Requirement with respect to Resolution Plan | Clause of Resolution Plan | Compliance )Yes / No( |
|---|---|---|---|
| 25)2(b) | Whether the Resolution Applicant meets the criteria approved by the CoC having regard to the complexity and scale of operations of business of the CD? | Section IV(V)(1) | Yes |
| Section 29A | Whether the Resolution Applicant is eligible to submit resolution plan as per final list of Resolution Professional or Order, if any, of the Adjudicating Authority? | Annexure III | Yes |
| Section 30)1( | Whether the Resolution Applicant has submitted an affidavit stating that it is eligible? | Annexure III | Yes |
| Section 30)2( | Whether the Resolution Plan- | Section V (vi) (h) | Yes |
| (a) provides for the payment of insolvency resolution process costs? (b) provides for the payment to the operational creditors? (c) provides for the payment to the financial creditors who did not vote in favour of the resolution plan? (d) provides for the management of the affairs of the corporate debtor? (e) provides for the implementation and supervision of the resolution plan? (f) contravenes any of the provisions of the law for the time being in force?] | |||
| Section 30)4( | Whether the Resolution Plan )a( is feasible and viable, according to the CoC? )b( has been approved by the CoC with 66% voting share? | 4th CoC Meeting | Yes |
| Section 31)1( | Whether the Resolution Plan has provisions for its effective implementation plan, according to the CoC? | Section IX (xx) | Yes |
| Regulation 38)1( | Whether the amount due to the operational creditors under the resolution plan has been given priority in payment over financial creditors?] | Section VI (xiii) | Yes |
| Regulation 38)1A( | Whether the resolution plan includes a statement as to how it has dealt with the interests of all stakeholders? | Section X (xxiii) (2) | Yes |
| Regulation 38(1B) | (i) Whether the Resolution Applicant or any of its related parties has failed to implement or contributed to the failure of implementation of any resolution plan approved under the Code. (ii) If so, whether the Resolution Applicant has submitted the statement giving details of such non-implementation?] | Section X (xxiii) (3) | Yes |
| Regulation 38)2( | Whether the Resolution Plan provides: )a( the term of the plan and its implementation schedule? )b( for the management and control of the business of the corporate debtor during its term? )c( adequate means for supervising its implementation? | Section VIII (xvi) (xvii), (xviii) & (xix) | Yes |
| 38)3( | Whether the resolution plan demonstrates that – )a( it addresses the cause of default? )b( it is feasible and viable? )c( it has provisions for its effective implementation? )d( it has provisions for approvals required and the timeline for the same? )e( the resolution applicant has the capability to implement the resolution plan? | Section X (xxiii) (3) | No |
| 39)2( | Whether the RP has filed applications in respect of transactions observed, found or determined by him? | NA | No |
| Regulation 39(4) | Provide details of performance security received, as referred to in sub-regulation (4A) of regulation 36B.] | As mentioned earlier in RFRP | Yes |
The CIRP has been conducted as per the timeline indicated as under:
| Section of the Code / Regulation No. | Description of Activity | Latest Timeline under regulation 40A | Actual Date |
|---|---|---|---|
| Section 16)1( | Commencement of CIRP and Appointment of IRP | T | 28.03.2023 |
| Regulation 6)1( | Publication of Public Announcement | T+3 | 29.03.2023 |
| Section 15)1(c) /Regulation 12 )1( | Submission of Claims | T+14 | 12.04.2023 |
| Regulation 13)1( | Verification of Claims | T+21 | 13.04.2023 |
| Section 26)6A( / Regulation 15A | Application for Appointment of Authorised Representative, if necessary | T+23 | NA |
| Regulation 17)1( | Filing of Report Certifying Constitution of CoC | T+23 | 13.04.2023 |
| Section 22)1( and regulation 17)2( | First Meeting of the CoC | T+30 | 20.04.2023 |
| Regulation 35A | Determination of fraudulent and other transactions | T+115 | NA |
| Regulation 27 | Appointment of two Registered Valuers | T+47 | 24.05.2023 |
| Regulation 36 )1( | Submission of Information Memorandum to CoC | T+54] | 19.06.2023 |
| Regulation 36A | Invitation of EoI | T+75 | 21.06.2023 |
| Publication of Form G | T+75 | 21.06.2023 | |
| Provisional List of Resolution Applicants | T+100 | 09.07.2023 | |
| Final List of Resolution Applicants | T+115 | 13.07.2023 | |
| Regulation 36B | Issue of Request for Resolution Plan, which includes Evaluation Matrix and Information Memorandum to Resolution Applicants | T+105 | 14.07.2023 |
| Section 30)6( / Regulation 39)4( | Submission of CoC approved Resolution Plan | T+165 | 28.08.2023 |
| Section 31)1( | Approval of Resolution Plan | T=180 | 24.09.2023 |
The time frame proposed for obtaining relevant approvals is as under:
| Sl. No. | Nature of Approval | Name of applicable Law | Name of Authority who will grant Approval | When to be obtained |
|---|---|---|---|---|
| 1 | Approval of the Resolution Plan | Insolvency and Bankruptcy Code, 2016 | NCLT | After approval of the Resolution Plan by CoC |
| 2 | Capital Reduction as per section 66 of Companies Act, 2013 | Companies Act, 2013 (Procedure for Reduction of Share Capital) Rules, 2016 | NCLT | NCLT Along with approval of Resolution Plan |
| 3 | Dispensation from adding “and reduced” in the name of the Corporate Debtor after Capital Reduction | Companies Act, 2013 (Procedure for Reduction of Share | NCLT | NCLT Along with approval of Resolution Plan. |
| Capital) Rules, 2016 | ||||
|---|---|---|---|---|
| 4 | Dispensation of all cases, claims etc filed by any person or competent authority, pertaining to period prior to NCLT Approval Date. | Various Acts & Regulations Civil, criminal, extant exchange control laws, securities laws, any anti-corruption laws, SEBI Regulations | NCLT Relevant authorities depending upon the pending cases, if any. | After approval of the Resolution Plan by CoC - Intimation for approval and giving effect after approval by NCLT to various authorities |
| 5 | Relief from Stamp Duty & Fees on account of the transactions contemplated in the Plan | Indian Stamp Act, 1899 | NCLT & Stamp Authority | NCLT - Along with approval of Resolution Plan. Stamp Authority - Intimation for approval and giving effect after approval by NCLT |
| 6 | The approval of the shareholders to the transactions contemplated under the Plan shall be deemed to have been given on the approval of the Plan by the NCLT, including for the reduction of share capital | Companies Act, 2013 | NCLT | NCLT - Along with approval of Resolution Plan. Shareholders, Financial Creditors - Intimation and giving effect after approval by NCLT |
| 7 | Waiver of statutory non-compliance | Applicable laws | Relevant Government Authorities | NCLT - Along with approval of Resolution Plan. Various Authority - Intimation for approval and giving effect after approval by NCLT |
| 8 | Waiver of tax, interest and penalties from past litigations | Income tax Act, 1961 | NCLT, Income Tax Authorities | NCLT - Along with approval of Resolution Plan. Various Authority |
| - Intimation for approval and giving effect after approval by NCLT | ||||
| 9 | Waiver of non-compliance and penalties, cost interest on account of such waiver prior to Effective date including but without limitation and restoration: i. Environment Laws ii. Electricity Department iii. Labor department iv. Tax laws v. Companies Act, 1956 / 2013 vi. Income Tax Act, 1961 | NCLT | NCLT - Along with approval of Resolution Plan. Various Authority - Intimation for approval and giving effect after approval by NCLT | |
| 10 | Non-lapse of brought forward losses of the Corporate Debtor | Income Tax Act, 1961 | NCLT, Income Tax authorities | NCLT - Along with approval of Resolution Plan. Various Authority - Intimation for approval and giving effect after approval by NCLT |
The Resolution Plan is not subject to any contingency. - NO
or
The Resolution Plan is subject to the following contingencies )Elaborate the contingencies(:
i...
ii...
Following are the deviations / non-compliances of the provisions of the Insolvency and Bankruptcy Code, 2016, regulations made or circulars issued thereunder )If any deviation/ non-compliances were observed, please state the details and reasons for the same(:
| Sl. No. | Deviation/Non-compliance observed | Section of the Code / Regulation No. / Circular No. | Reasons | Whether rectified or not |
|---|---|---|---|---|
| 1 | NA | NA | NA | NA |
The Resolution Plan is being filed within 180 days before the expiry of the period of CIRP provided in section 12 of the Code.
14A. Whether the resolution professional has, in accordance with regulation 35A -
applied to the Adjudicating Authority on or before the one hundred and thirty-fifth day of the insolvency commencement date: No
filed Form CIRP 8 with the Board on or before the one hundred and fortieth day of the insolvency commencement date: No
Provide details of section 66 or avoidance application filed / pending.
| Sl. No. | Type of Transaction | Date of Filing with Adjudicating Authority | Date of Order of the Adjudicating Authority | Brief of the Order |
|---|---|---|---|---|
| 1 | Preferential transactions under section 43 | NO | NA | NA |
| 2 | Undervalued transactions under section 45 | NO | NA | NA |
| 3 | Extortionate credit transactions under section 50 | NO | NA | NA |
| 4 | Fraudulent transactions under section 66 | NO | NA | NA |
15A. The committee has approved a plan providing for contribution under regulation 39B as under: NA
a. Estimated liquidation cost: Rs...
b. Estimated liquid assets available: Rs...
c. Contributions required to be made: Rs...
d. Financial creditor wise contribution is as under:
| Sl. No. | Name of financial creditor | Amount to be contributed (Rs.) |
|---|---|---|
| 1 | NA | NA |
| Total | NA | NA |
15B. The committee has recommended under regulation 39C as under:
a. Sale of corporate debtor as a going concern: NA
b. Sale of business of corporate debtor as a going concern: NA
The details of recommendation are available with the resolution professional.
15C. The committee has fixed, in consultation with the resolution professional, the fee payable to the liquidator during the liquidation period under regulation 39D.]: NA
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 100%
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). 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 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) 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 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.
The Resolution Plan annexed to the Application 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 Debtor, 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.
The approval of the Resolution Plan shall not be construed as waiver of any statutory obligations/liabilities of the Corporate Debtor 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 para’s 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. The Resolution Applicant, for effective implementation of the Plan, shall obtain all necessary approvals, under any law for the time being in force, within such period as may be prescribed. iv. 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. vi. 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. vii. The Applicant shall forthwith send a certified copy of this Order to the CoC and the Resolution Applicant, respectively for necessary compliance.