Mr. Rakesh Kumar Tulsyan vs Bank Of Baroda & Ors.

Brief Facts:-

Salient features of the Resolution Plan

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, RAKESH KUMAR TULSYAN, an insolvency professional enrolled with THE INDIAN INSTITUTE OF INSOLVENCY PROFESSIONAL OF ICAI and registered with the Board with registration number IBBI/IPA001/IP-P01144/2018-19/11970, am the resolution professional for the corporate insolvency resolution process CIRP of NIK-SAN ENGINEERING COMPANY LIMITED CD.

2.

The details of the CIRP are as under:

Sr. No.	Particulars	Description
1	Name of the CD	NIK-SAN ENGINEERING COMPANY LIMITED
2	Date of Initiation of CIRP	03-11-2022
3	Date of Appointment of IRP	03-11-2022
4	Date of Publication of Public Announcement	07-11-2022
5	Date of Constitution of CoC	22-11-2022
6	Date of First Meeting of CoC	03-12-2022
7	Date of Appointment of RP	10-03-2023
8	Date of Appointment of Registered Valuers	10-12-2022

9	Date of Issue of Invitation for EoI	17-01-2023
10	Date of Final List of Eligible Prospective Resolution Applicants	15-02-2023
11	Date of Invitation of Resolution Plan	17-01-2023
12	Last Date of Submission of Resolution Plan	14-02-2023
13	Date of Approval of Resolution Plan by CoC	13-04-2024
14	Date of Filing of Resolution Plan with Adjudicating Authority	26-03-2024
15	Date of Expiry of 180 days of CIRP	02-05-2023
16	Date of Order extending the period of CIRP	04-05-2023
17	Date of Expiry of Extended Period (180+90 = 270 days) of CIRP	31-07-2023
18	Date of Expiry of 330 days of CIRP	30-09-2023
19	Date of Remand Back of Resolution Plan	06-12-2023
20	Date of expiry of 84 days beyond 330 days of CIRP from 06-12- 2023 extending the period of CIRP	28-02-2024
21	Date of expiry of 30 days beyond 414 days of CIRP from 06-12- 2023 extending the period of CIRP	28-03-2024

22	Date of Expiry of Extended Period of CIRP	28-03-2024
23	Fair Value	Rs. 13,94,95,493
24	Liquidation value	Rs. 9,97,57,804
25	Number of Meetings of CoC held	15

3.

I have examined the Resolution Plan received from Resolution Applicant Aesthetic Stampings & Laminations Limited along with Abhishek Naresh Choudhary (and approved by Committee of Creditors) CoC of NIK-SAN ENGINEERING COMPANY 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 Aesthetic Stampings & Laminations Limited along with Abhishek Naresh Choudhary has submitted an affidavit pursuant to section 30 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 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 25-08-2023 and re-constituted CoC on 13-04-2024 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 the regulation 26.

|strike off the part that is not relevant|

5.

The list of financial creditors of the NIK-SAN ENGINEERING COMPANY 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	Bank of Baroda	90.6%	Voted
2	Varsha Engineers	9.4%	Voted

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(

Sr. 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	0	0	0	NA
		(b) Other than (a) above: (i) who did not vote in favour of the resolution Plan	0	0	0	0
			1509.95	1509.95	1509.95	100%

		(ii) who voted in favour of the resolution plan
		Total[(a) + (b)]	1509.95	1509.95	1509.95	100%
2	Unsecured Financial Creditors	(a) Creditors not having a right to vote under sub-section (2) of section 21	156.66	156.66	156.66	100%
		(b) Other than (a) above:
		(i) who did not vote in favour of the resolution Plan	0	0	0	0
		(ii) who voted in favour of the resolution plan	156.66	156.66	156.66	100%
		Total[(a) + (b)]	156.66	156.66	156.66	100%
3	Operational Creditors	(a) Related Party of Corporate Debtor	0	0	0	0
		(b) Other than (a) above:
		(i) Government	0	0	0	-
		(ii) Workmen	0	0	0	-
		(iii) Employees	0	0	0	-
		(iv) OC for Goods & Services	1277.69	1063.26	239.23	22.50
		Total[(a) + (b)]	1277.69	1063.26	239.23	22.50
4	Other debts and dues		0	0	0	0
Grand Total			2956.90	2729.87	1905.84	69.81

*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.

It is not NPV.]

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	4691600	0	100%	0
2	Preference	0	0	0	0

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(h)	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?		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?		Yes
Section 30)1(	Whether the Resolution Applicant has submitted an affidavit stating that it is eligible?		Yes
Section 30)2(	Whether the Resolution Plan- (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	CLAUSE 7	Yes Yes Not Applicable Yes

	in force?]		Yes No
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?		Yes Yes
Section 31)1(	Whether the Resolution Plan has provisions for its effective implementation plan, according to the CoC?		Yes
Regulation38 )1(	Whether the amount due to the operational creditors under the resolution plan has been given priority in payment over financial creditors?		Yes
Regulation 38)1A(	Whether the resolution plan includes a statement as to how it has dealt with the interests of all stakeholders?		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?]		No Not Applicable
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?		Yes Yes 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?		Yes Yes Yes Yes

	)e( the resolution applicant has the capability to implement the resolution plan?		Yes
39)2(	Whether the RP has filed applications in respect of transactions observed, found or determined by him?		Yes
Regulation 39(4)	Provide details of performance security received, as referred to in sub-regulation (4A) of regulation 36B.]		Yes

10.

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	T
Regulation 6)1(	Publication of Public Announcement	T+3	07-11-2022
Section 15)1()c( /Regulation 12 )1(	Submission of Claims	T+14	19-11-2022
Regulation 13)1(	Verification of Claims	T+21	22-11-2022
Section 26)6A( / Regulation 15A	Application for Appointment of Authorised Representative, if necessary	T+23	Not Applicable
Regulation 17)1(	Filing of Report Certifying Constitution of CoC	T+23	22-11-2022
Section 22)1( and regulation 17)2(	First Meeting of the CoC	T+30	03-12-2022
Regulation 35A	Determination of fraudulent and other transactions	T+115	24-03-2023
Regulation 27	Appointment of two Registered Valuers	T+47	10-12-2022
Regulation 36 )1(	Submission of Information Memorandum to CoC	T+54	14-02-2023
Regulation 36A	Invitation of EoI	T+75	17-01-2023
	Publication of Form G	T+75	17-01-2023
	Provisional List of Resolution Applicants	T+100	09-02-2023
	Final List of Resolution Applicants	T+115	15-02-2023
Regulation 36B	Issue of Request for Resolution Plan, which includes Evaluation Matrix and Information Memorandum to Resolution Applicants	T+105	16-02-2023
Section 30)6( / Regulation 39)4(	Submission of CoC approved Resolution Plan	T+165	26-03-2024

Section 31)1(

Approval of Resolution Plan

T+180

11.

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
2
3

12.

The Resolution Plan is not subject to any contingency. or

The Resolution Plan is subject to the following contingencies )Elaborate the contingencies(: i... ii...

13.

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
2
3

14.

The Resolution Plan is being filed ____ 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, -

(a)

applied to the Adjudicating Authority on or before the one hundred and thirty-fifth day of the insolvency commencement date: No

(b)

filed Form CIRP 8 with the Board on or before the one hundred and fortieth day of the insolvency commencement date: No

15.

Provide details of section 66 or avoidance application filed / pending. - NIL

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
2	Undervalued transactions under section 45
3	Extortionate credit transactions under section 50
4	Fraudulent transactions under section 66

15A. The committee has approved a plan providing for contribution under regulation 39B as under:

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	Bank of Baroda
2	Varsha Engineers

15B. The committee has recommended under regulation 39C as under:

a. Sale of corporate debtor as a going concern: Yes

b. Sale of business of corporate debtor as a going concern: Yes

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. Not Applicable

16.

I RAKESH KUMAR TULSYAN hereby certify that the contents of this certificate are true and correct to the best of my knowledge and belief, and nothing material has been concealed therefrom.

Findings of this Tribunal

> “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. On receipt of such proposal, the Adjudicating Authority (NCLT) is required to satisfy itself that the resolution plan as approved by CoC meets the requirements specified in Section 30(2). No more and no less”. > The Hon’ble Supreme Court has further held at para 35 of the above judgement that the discretion of the adjudicating authority (NCLT) is circumscribed by Section 31 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.

> “the limited judicial review available to AA has to be within the four corners of section 30(2) of the Code. Such review can in no circumstance trespass upon a business decision of the majority of the CoC. As such the Adjudicating Authority would not have power to modify the Resolution Plan which the CoC in their commercial wisdom have approved”

21.

This Court has consistently held that the commercial wisdom of the CoC has been given paramount status without any judicial intervention for ensuring completion of the stated processes within the timelines prescribed by the IBC. It has been held that there is an intrinsic assumption, that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan. They act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. A reference in this respect could be made to the judgments of this Court in the cases of K. Sashidhar v. Indian Overseas Bank and Others, Committee of Creditors of Essar Steel India Limited through Authorised Signatory v. Satish Kumar Gupta and Others, Maharashtra Seamless Limited v. Padmanabhan Venkatesh and Others, Kalpraj Dharamshi and Another v. Kotak Investment Advisors Limited and Another, and Jaypee Kensington Boulevard Apartments Welfare Association and Others v. NBCC (India) Limited and Others.

“95.

...However, we do take this opportunity to offer a note of caution for NCLT and NCLAT, functioning as the adjudicatory authority and appellate authority under the IBC respectively, from judicially interfering in the framework envisaged under the IBC. As we have noted earlier in the judgment, the IBC was introduced in order to overhaul the insolvency and bankruptcy regime in India. As such, it is a carefully considered and well thought out piece of legislation which sought to shed away the practices of the past. The legislature has also been working hard to ensure that the efficacy of this legislation remains robust by constantly amending it based on its experience. Consequently, the need for judicial intervention or innovation from NCLT and NCLAT should be kept at its bare minimum and should not disturb the foundational principles of the IBC...”