Mistcold Sales And Services Private Limited vs M/S Nayati Healthcare And Research Private Limited

PER: SH.KHETRABASI BISWAL, MEMBER (JUDICIAL) SH. SHISHIR AGARWAL, MEMBER (TECHNICAL)

The instant Application bearing IA (IBC) (Plan) No. 3 of 2025 has been filed on behalf of Mr. Vikram Bajaj (hereinafter referred to as “Applicant/ Resolution Professional” for M/s. Nayati Healthcare and Research Private Limited (hereinafter referred to as “Corporate Debtor”) U/s 30(6) & 31 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “Code”) for seeking approval of the Resolution Plan submitted by Successful Resolution Applicant Anshu Hospital Limited (hereinafter referred to as “SRA”).

The main Company Petition bearing CP(IB)No.147/Chd/Hry/2018 was filed by Mistcold Sales and Services Private Limited, the Operational Creditor (hereinafter referred to as the “OC”) against the Corporate Debtor, which was admitted by this Adjudicating Authority vide order dated 22.12.2023 by appointing Mr. Arvind Mittal, as Interim Resolution Professional (hereinafter referred to as “IRP”). Accordingly, as per Regulation 6(1) of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process of Corporate Persons), 2016 (hereinafter referred to as “CIRP Regulations”), the IRP made Public Announcement in FORM-A on 25.12.2023 in newspapers namely Financial Express in the region of New Delhi (“English Edition”) and Jansatta in the region of New Delhi (“Hindi Edition”) intimating about the commencement of CIRP of Corporate Debtor and for calling upon all the stakeholders of CD submit their respective claims along with proof with last date as 05.01.2024.

The IRP prepared the list of Creditors as of 13.01.2024 and constituted the CoC during the CIRP of the Corporate Debtor. Accordingly, the Erstwhile IRP filed an Application bearing I.A. No. 593 of 2024 placing on record the report certifying the constitution of CoC, which was allowed by the bench vide order dated 15.02.2024. The composition of CoC is as under:

Accordingly, the IRP convened 1st CoC meeting on 24.01.2024, wherein the Committee of Creditors has decided to replace the existing IRP Mr. Arvind Mittal with Mr. Vikram Bajaj i.e., Applicant herein as the Resolution Professional with requisite majority as per law, for which I.A. No. 593 of 2024 was filed for seeking his appointment, which the Tribunal allowed by order dated 07.03.2024 by appointing Mr. Vikram Bajaj as RP.

Thereafter, the Applicant received claims from CISCO System Capital (1) Pvt. Ltd. and Canara Bank, which were verified and admitted by the Applicant. Pursuant to the same, the CoC was re-constituted on 22.04.2024 and report for reconstitution of COC was filed by the Applicant vide IA. No. 1178 of 2024 to place on record the updated list of Creditors as per Section 25(2)(e) of the Code and reconstituted CoC as per Section 21 of the Code which was taken on record on 15.05.2024 by the Bench. The revised constitution of the CoC and percentage of voting share therein is as follows:

The Applicant published FORM G dated 16.05.2024 inviting EOI from PRAs with last date as 31.05.2024 and the last date for submission of Resolution Plan was stipulated as 30.07.2024. During the course of the CIRP, the Committee of Creditors (CoC) in its 5th, 7th, and 8th meetings approved extensions of time for submission and revision of Resolution Plans to ensure wider participation of prospective resolution applicants. In the 5th CoC meeting held on 03.06.2024, the CoC approved an extension of the CIRP timeline. Further, in the 7th meeting dated 16.08.2024, an additional extension for submission of revised Resolution Plans was granted. Subsequently, in the 8th CoC meeting held on 18.09.2024, the CoC approved a further extension up to 03.10.2024 and resolved to exclude the period relating to adjudication of I.A. No. 1521 of 2024. These extensions were granted to facilitate effective participation of PRAs and ensure proper consideration of viable Resolution Plans. A series of CoC meetings were duly convened by the Resolution Professional during the CIRP period to deliberate upon Resolution Plans received, valuation reports, and procedural matters including condonation of delay and extension of the CIRP period.

The revised Resolution Plan submitted by Resolution Applicant was placed before the CoC in the 14th CoC meeting for e-voting on 03.03.2025. The CoC approved the Resolution Plan under Resolution 2A with 72.73% votes in favour, thereby approving the Resolution Plan submitted by Anshu Hospital Limited and accordingly the following resolution was passed through e-voting:-

The salient features of the Resolution Plan as approved by COC are as follows:

Brief background of the SRA: The SRA was incorporated on 27.06.1997 and at present it owns and operates 3 hospitals and multiple health care facilities/clinics. It has set new benchmarks in super-specialty with path- breaking work over the past 32 years and is recognized as one of the top healthcare institutions of Faridabad and Delhi-NCR.

Financial Strength of Resolution Applicant: The Resolution Applicant, Anshu Hospitals Limited, has demonstrated strong financial capacity through its audited statements for FY 2020–21 to FY 2023-24. The total assets have increased from Rs. 2,63,41,33,372/- to Rs. 5,67,23,04,445/-, reflecting consistent growth. The company has reported continuous profitability, with total income of Rs. 5,09,43,40,743/- and profit after tax of Rs. 12,95,43,185/- for FY 2023-24. The financials indicate adequate net worth, liquidity, and stability to effectively implement the Resolution Plan.

The Financial Outlay and Implementation Schedule, as proposed under the Resolution Plan is mentioned in Chapter-4 and Chapter-8 of the Resolution Plan. Copy of the Resolution Plan dated 20.02.2025 (Resolution Plan dated 11.02.2025 as modified and received on 20.02.2025) submitted by Anshu Hospital Limited duly approved by the CoC in the 14% CoC meeting dated 27.02.2025 is annexed with the Application as ANNEXURE A-21.

Management of the Corporate Debtor: On the NCLT Approval Date, the existing board of directors of the Corporate Debtor shall stand dissolved and the existing directors office shall stand vacated without any further step/action. The Monitoring Committee comprising of (a) 3 (three) representatives nominated by the Resolution Applicant; (b) 3 (three) representatives nominated by the Financial Creditors approving the Resolution Plan and (c) Mr. Vikram Bajaj subject to prior consent in writing of the Resolution Applicant, and in case of Resolution Applicant not consenting to it, another Expert shall be inducted. The Resolution Plan shall be implemented by the Resolution Applicant and the Monitoring Committee shall extend cooperation to the Resolution Applicant on best effort basis. The Successful Resolution Applicant shall bear the expenses in respect of the Monitoring Committee and pay a fee of Rs. 2,00,000/- (Indian Rupees Two Lakhs) per month to the Resolution Professional till the dissolution of the Monitoring Committee.

Source of Funds: The Resolution Consideration Amount of Rs. 120 crores are being offered by the Resolution Applicant for the resolution of the Corporate Debtor and the break-up of the Resolution Consideration Amount is as under:

Compliance of mandatory contents of Resolution Plan under IBC and CIRP Regulations: The Applicant is stated to have conducted a thorough compliance check of the Resolution Plan in terms of Section 30(2)(a), (b) & (c) of IBC as well as Regulations 38 & 39 of the CIRP Regulations, and has submitted Form-H under Regulation 39(4). The Resolution Applicant has filed an Affidavit pursuant to Section 30(1) of IBC confirming that they are eligible to submit the Plan under Section 29A of IBC and that the contents of the said Certificate are in order. The Fair Value and Liquidation Value as submitted in Form H are stated to be Rs. 124.58 crore and Rs. 90.46 crore respectively.

CIRP Costs: Payments in relation to the CIRP Costs upto the NCLT Approval Date shall be made in full and in priority to any other Creditor of the Corporate Debtor from the Resolution Consideration Amount. Once such payments have been made on the instructions of the Resolution Applicant, it shall be deemed to be a complete discharge of all liabilities, Claims and debt of the Resolution Applicant and the Corporate Debtor in relation to the CIRP Costs. The CIRP costs on actuals will be paid within 60 days from approval of the Resolution Plan by the Tribunal.

Reliefs & Concessions: Besides seeking approval of the Resolution Plan submitted by the SRA, the Applicant has also prayed in Chapter-IX of the Resolution Plan for the grant of reliefs, waivers, and concessions to the Resolution Applicant.

The Resolution Applicant has stated in its Resolution Plan that any amount realized on account of the PUFE Application in pursuant to Sections 43, 45, 49, 50 and 66 of the Code filed with this Adjudicating Authority shall be deemed to have been received for the benefit of the Financial Creditors and shall be pursued by the Financial Creditors at their own cost. To the extent, the Applicant/ Resolution Professional is undertaking such proceedings for which the Applicant shall be entitled to use the corpus of the Corporate Debtor. Further the Resolution Plan provides for a RP Corpus of Rs. 25 lakhs over and above the Resolution Plan consideration of Rs. 120 crores for meeting any legal expenses. The Applicant has filed an Application u/s 66 of the Code on 02.04.2025 vide filing number 0404116/ 00895/ 2025 seeking contribution of Rs. 2,02,91,478.57/- to the Corporate Debtor.

Pursuant to approval of the Resolution Plan by the CoC, the Applicant issued a Letter of Intent dated 28.03.2025 to the Resolution Applicant and the Resolution Applicant was requested to convey his unconditional acceptance thereto. The Resolution Applicant was advised that the amount of Rs. 10 Crore furnished as EMD along with Resolution Plan has been retained as part of performance security and further performance security of Rs. 15 Crore has to be provided. The Resolution Applicant conveyed his unconditional acceptance through email on 29.03.2025 and further submitted a duly accepted copy of Letter of Intent vide email dated 31.03.2025. In compliance with Regulation 39(4A) of CIRP Regulations and terms of RFRP, the Resolution Applicant has furnished total Performance Security of Rs. 25 Crore, comprising deposit of Rs. 10 crore EMD submitted along with Resolution Plan and the Performance Bank Guarantee of Rs. 15,00,00,000/- (Rupees Fifteen Crores Only) on 04.04.2025.

In compliance with Regulation 39(4) of the CIRP Regulations 2016, the Applicant/RP has filed "Compliance Certificate" in Form-H stating that the Resolution Plan is compliant with the provisions of the Code.

The interests of existing shareholders have been altered by the Resolution plan as under:

The compliance of the Resolution Plan is as under:

The CIRP has been conducted as per the timeline indicated as under:

The affidavit dated 13.08.2025 as Annexure C-3 has been filed by the SRA with respect to PF and gratuity dues stating to pay full amount of EPFO and PF dues.

We have heard Mr. Abhishek Anand with Karan Kohli, the learned Counsels for the Applicant and Vikram Bajaj (RP) appearing online. We have also carefully perused various contentions raised in the Application along with extant provisions of Code and the Rules made thereunder along with the settled position of law.

Firstly, we will refer to the cardinal provisions of the Code with reference to submission and approval of the resolution plan. In this regard, provision of Section 30 of Code deals with the issue of submission of resolution plan and that of section 31 deals with approval of Resolution plan. Provisions of section 30 inter-alia stipulates that:

Provisions of Section 31 of the Code inter-alia stipulate that if the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requirements as referred to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, other stake holders etc, else it can reject the Plan.

While examining the Resolution plan in question, we found that it has duly followed all the cardinal principles prescribed under the Code. A thorough compliance check of the Resolution Plan in terms of Section 30(2)(a), (b) & (c) of the Code as well as Regulations 38 & 39 of the CIRP Regulations has been conducted and the RP has also submitted the requisite Form-H under Regulation 39(4). The Resolution Applicant has filed an Affidavit pursuant to Section 30(1) of the Code confirming that they are eligible to submit the Plan under Section 29A of the Code and that the contents of the said Certificate are in order. The Fair Value and Liquidation Value of the Corporate Debtor are Rs. 124.58 crore and Rs. 90.46 crore respectively, which prima facie prove that it is fair assessment of the property value of Corporate Debtor.

It is relevant to note that Rs. 20 crores will be paid towards assignment of the sustainable debt (as set out in this Resolution Plan) along with the personal guarantees of Ms. Nira Radia, Satish Kumar Narula, Karuna Menon (“Promoters of the Corporate Debtor”) and the land owner(s) and the collaterals provided by the guarantors for the entire debt of the Secured Financial Creditors. This, along with the assignment of Encumbrances over the Land Parcels are important to seek the support of the Promoters of the Corporate Debtor and the Land Owner without which this Resolution Plan cannot be implemented. The Resolution Applicant, however, reserves the right to recover the amount paid i.e., Rs. 20,00,00,000/- (Indian Rupees Twenty Crores only) from the Promoters of the Corporate Debtor and the land owners in future owners. This clause, being an integral part of the Resolution Plan and having been approved by the requisite majority of the CoC, falls within the commercial wisdom of the Committee of Creditors. This Adjudicating Authority finds no violation of the provisions of Section 30(2) of the Code in this regard.

As stated, the SRA has already furnished total Performance Security of Rs. 25 Crore, comprising deposit of Rs. 10 crore EMD submitted along with Resolution Plan and the Performance Bank Guarantee to the tune of Rs. 15,00,00,000/- (Rupees Fifteen Crores Only) on 04.04.2025.

The role of the Adjudicating Authority in approving a Resolution Plan has been settled by Hon'ble Supreme Court (and consistently followed in the later judgement of various courts) in the case of K. Sashidhar vs. Indian Overseas Bank^{11.In K. Sashidhar v. Indian Overseas Bank & Others (in Civil Appeal No. 10673/2018) decided on 05.02.2019: (2019) 12 SCC 150}, where the Hon'ble Supreme Court has inter-alia held that:

And held further in para 35 of the judgement that –

The Hon’ble Supreme Court reiterated this view in the case of Essar Steel^{22.Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta & Ors. in Civil Appeal No.8766 67/2019, decided on 15.11.2019: (2020) 8 SCC 531} by holding that:

Reinforcing the above, the Hon’ble Supreme Court more recently has held in Vallal RCK vs. M/s Siva Industries^{33.Vallal RCK vs M/s Siva Industries and Holdings Limited & Ors. in Civil Appeal No.1811-1812/2022, decided on 03.06.2022: (2022) 9 SCC 803}, that:

Emphasizing yet again, that

and, by referring to an earlier judgment in the case of Arun Kumar Jagatramka^{44.Arun Kumar Jagatramka v. Jindal Steel & Power Ltd. (2021) 7 SCC 474] : (SCC p. 533, para 95)}, added a note of caution that

The above decisions clearly define the role and scope of AA in approving the Resolution Plan and the facts of the case clearly establish that the instant Application has been filed duly following the provisions of Section 31 of the Code making the Resolution plan in question eligible to be approved, and it is also in conformity with settled position of law as stated supra. Therefore, we are satisfied that the instant Application deserves to be allowed as prayed for.

It is also to be clarified that approval of the Resolution Plan shall not be construed as waiver of any statutory obligations/ liabilities of the Corporate Debtor and shall be dealt with by the appropriate Authorities in accordance with law. Any waiver sought in the resolution plan, shall be subject to approval by the Authorities concerned. As regards the reliefs sought, the Corporate Debtor has to approach the authorities concerned for such reliefs and we trust the authorities concerned will do the needful. “Approval of this plan by NCLT shall be deemed to be sufficient notice which may be required to be given to any person for such matter and no further notice shall be required to be given” as per the view taken by the Hon'ble Supreme Court in the case of Ghanashyam Mishra (2021) 9 SCC 657.

In the result, by exercising the powers conferred on this Adjudicating Authority, U/s 31 of the Code, we approve the Resolution Plan dated 20.02.2025 (Resolution Plan dated 11.02.2025 as modified and received on 20.02.2025) having Plan value of Rs. 120 crores submitted by Anshu Hospital Limited with following consequential directions:

With above directions, I.A. (IBC) (PLAN) No. 3 of 2025 with the Plan Value of Rs. 120 crores in main CP(IB) No. 147/Chd/Hry/2018 stands allowed and disposed of.