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Judgment
Hon'ble Bhaskara Pantula Mohan, Member (Judicial) Hon'ble Shyam Babu Gautam, Member (Technical)
This Application is filed under Section 30(6) and 31 of Insolvency and Bankruptcy Code, 2016 in the C.P.No. 1886 of 2018 which was admitted vide order of this Tribunal dated 27.11.2018 initiating Corporate Insolvency Resolution Process against NRC Limited (hereinafter the 'Corporate Debtor'). This application has been filed for approval of the Resolution Plan of Corporate Debtor which was approved by the members of committee of creditors.
Based on the abovementioned order Mr. Vikas Prakash Gupta who is the applicant in the present application was appointed as Interim Resolution Professional (IRP) and was further confirmed as the Resolution Professional (RP) of the Corporate Debtor pursuant to the resolution of the Committee of Creditors in its second meeting held on 21.01.2019.
The applicant submits that the CIRP was conducted in compliance to the terms of the Code and the relevant Rules and Regulations. The following steps have been taken in relation to the CIRP which are arranged chronologically:
Issuance of Public Announcement by IRP to invite claims on 07.12.2018. ii. Committee of Creditors was constituted on 21.12.2018. iii. 1st meeting of CoC was held on 03.01.2019 wherein the appointment of the applicant as RP of the Corporate Debtor was put to vote but the CoC did not vote on any of the agenda items, awaiting instead to be provided a complete overview of the Corporate Debtor and postponed the agenda for the next meeting. iv. In the 2nd meeting of the CoC held on 21.01.2019, the applicant was confirmed as the RP.
In the 3rd meeting of the CoC held on 25.02.2019, Form G for proof of claims by various stakeholders was approved. vi. On 01.03.2019, Invitation of Expression of Interest (EOI) was issued by way of publication of Form G and the last date of submission of EOI was 15.03.2019. vii. A Provisional list of prospective resolution applicant was issued on 25.03.2019. viii. The Issuance of Information Memorandum and request for Resolution Plan and Evaluation Matrix was made on 25.03.2019. ix. On 09.04.2019, the final list of Resolution Applicants was released and the last date for submission of the Resolution Plan was set to 25.04.2019. However, at the (6^{\text{th}}) CoC meeting held on 25.04.2019, the CoC ratified its agreement over e-mail to extend the date for such submission of Resolution Plan. Accordingly, the Resolution Plans were submitted on 10.05.2019.
A Resolution Plan was submitted by the Resolution Applicant i.e. Adani Properties Private Limited on 10.05.2019 along with Bid Guarantee of INR 10 Crores. The Resolution Applicant was incorporated on 25.05.1995 and is the holding company for the Real Estate business of the Adani Group which is one of the leading business conglomerates, and the largest integrated infrastructure group in India. It has 6 listed entities on the Indian Stock Exchanges viz. Adani Enterprises Ltd. ("AEL"), Adani Power Ltd. ("APL"), Adani Port and Special Economic Zones Ltd. ("APSEZ"), Adani Transmission Ltd. ("ATL"), Adani Green Energy Ltd. ("AGEL") and Adani Gas Ltd. ("AGL") with a combined market cap of over INR 154,674,00,00,000/- and the Resolution Applicant is part of the promoter group holding strategic investment in AEL, APSEZ, APL, AGEL and ATL.
An affidavit affirming its eligibility under Section 29A of the Code was issued by the Resolution Applicant on 12.03.2019.
A Transaction Audit Report was issued on 05.06.2019 and Liquidation valuation report was submitted to the CoC on 12.06.2019.
On 19.06.2019, a revised Resolution Plan was submitted by the Resolution Applicant during the 8th CoC meeting which was evaluated and accepted by the CoC at its 9th meeting which was held on 25.06.2019 and copy of the Final Resolution Plan dated 27.06.2019 was circulated. The Final Resolution Plan dated 27.06.2019 was opened for voting by the CoC through e-voting on 29.06.2019. The e-voting window for the Final Resolution Plan was opened at 12 p.m. on 28.06.2019 and was closed at 12 p.m. on 03.07.2019. The Final Resolution Plan was approved by 99.88% of the members of CoC. The e-voting results are annexed at Exhibit-H of the application.
A clarification letter dated 05.07.2019 for personal guarantees issued by Mr. G.P. Goenka, an erstwhile Director, could not be legally assigned to the incoming Resolution Applicant and thus the holders of such guarantees would continue to have the right to invoke such guarantees as against Mr. Goenka. Also, it was clarified that the Corporate Debtor will, out of the Fund infusion, make payment of INR 1.84 Crores to the Government and Statutory Authorities and not INR 3.00 Crores as erroneously stated in Clause 1.2 A of the Final Resolution Plan.
The Resolution Plan which was proposed by the Resolution Applicant was approved by the COC with 99.88% vote share, 0.00% voters abstained from voting and 0.12% CoC rejected the plan. Through this plan the Resolution Applicant proposes to make payment to various stakeholders.
Also, it is submitted by the applicant that two registered valuers were appointed for the determination of the fair value and the liquidation value of the Corporate Debtor. The registered valuers have determined the fair value and liquidation value as per Regulation 35 of the CIRP Regulations. The average of the value determined by the Registered Valuers is as stated below:
| Registered Valuer | Fair Value considering encumbrance (INR in crores) | Liquidation Value considering encumbrances (INR in crores) |
|---|---|---|
| Kakode Associates Consulting Pvt. Ltd. | 200.60 | 160.48 |
| Best Mulyankan Consultants Ltd. | 234.84 | 167.73 |
| Average | 217.72 | 164.06 |
Salient Features of the Resolution Plan
The Resolution Plan proposes for making a total payment of an amount not exceeding INR 160 Crores out of which the upfront payment will be made towards payment of the CIRP costs, payment of termination benefits and one-time settlement of all the claims against the Corporate Debtor.
As per the Information Memorandum and Information made available in the Virtual Data Room and the List of Creditors, the total Claim(s) filed by the Creditors are summarized in a tabular format as below:
| Category of creditor | Claims filed | Claims admitted | Amount Rejected | Claims under verification | Contingent Claims |
|---|---|---|---|---|---|
| Financial Creditors | 1,175.51 | 1,175.51 | - | - | - |
| Employees and Workmen (See note 1) | 2,537.40 | 144.99 | 4.88 | 1,017.78 | 1,369.75 |
| Government and Statutory Authorities | 27.12 | 1.84 | - | - | 25.28 |
| Operational Creditors (Other than Employees and Workmen and Government Statutory Authorities) | 139.97 | 52.77 | 42.48 | 5.29 | 39.43 |
| TOTAL | 3,880.00 | 1,375.11 | 47.36 | 1,023.07 | 1,434.46 |
The workmen have filed their dues through two labour unions i.e. NRC Mazdoor Sangh and All India Industrial Workers and Labour Union (AIIWLU). There is duplication of claims by 2589 workers who have filed there claims through both the unions. NRC Mazdoor Sangh has filed detailed calculation of claims with proper bifurcation of amount payable to workers pre-lockout period and post-lockout period but not filed the KYC of each workmen and proper authorization from each workman. Similarly, All India Industrial and General Workers Union (AIIGWU) filed proper authorization letter and KYC of 1877 workmen but failed to submit the authorization letter and KYC of balance 909 workmen. AIIGWU has also not filed the details of claim bifurcated between pre-lockout period and post-lockout period. In accordance with regulation 14 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for corporate persons) Regulation, 2016, RP has made the best estimate of amount based on the claim made and information available and admitted the claims of workmen for the pre-lockout period. Since the claims after the claims for post-lockout period are contingent claims.
The details of the Resolution Plan have been provided with the copy of this application. The payment schedule along with the amount to be paid to different categories of stakeholders is as follows:
| Sr. No. | Claimant | Estimated Amount Admitted (INR in Crores) |
| 1. | Financial Creditors (filed through Form C) | 1,177.47 |
| 2. | Operational Creditors (filed through Form B, D, E and F) |
| (i) | Operational Creditors, other than Workmen & Employees (filed through Form B) | 54.61 |
| (ii) | Operational Creditors, being Workmen & Employee (filed through Form D) | |
| (iii) | Operational Creditors, being Workmen & Employee (filed through Form E) | 148.09 |
| (iv) | Other Creditors (filed through Form F) | |
| Total | 1380.17 |
| Stakeholder | Estimated Admitted Claims (INR in Crores) | Total Payment (INR in Crores) | Upfront Payment (INR in Crores) |
|---|---|---|---|
| CIRP COSTS | |||
| CIRP Costs | 2.44 | 1 (The Resolution Applicant agreed that the amount to be paid towards CIRP Cost shall be determined by the RP and the CoC; and shall be communicated by the RP to the Resolution Applicant as practicable after the approval date by this Hon'ble Tribunal, but in any event not later than 10 days from the date thereof.) | 1 (Within 30 days of the NCLT Approval Date, prior to any other payments). CIRP costs will be paid at actuals. |
| Financial Creditors | |||
| Financial Creditors | 1177.46 | 120.00 | 120 (Within 30 days of the NCLT Approval Date towards the fund based claims of the Financial Creditors, as mentioned in the Resolution Plan) |
| Operational Creditors | |||
| Employees & Workmen | 148.09 | 32.16 | 32.16 (As per the direction of Hon'ble NCLT) |
| Operational Creditors (other than Employees & Workmen) | 54.61 | 6.84 | 1.84 Which was proposed for Operational Creditors and balance 5.00 Crores to Other such Operational Creditors (within 30 days of the NCLT Approval Date) |
| TOTAL | 1380.17 | 160.00 | 160.00 |
The applicant submitted that the Resolution Applicant furnished a security deposit of INR 50,00,00,000/- on 16.07.2019 in lieu of performance of bank guarantee of equivalent amount.
The applicant submitted that pursuant to the provisions of the Code and upon the approval of CoC, the applicant has appointed auditors, namely Amit Ray & Co. to conduct a Transaction Audit in order to identify transactions which are preferential, undervalued or fraudulent in nature falling within the period applicable. In this regard, the aforesaid auditor prepared a Transaction Audit Report identifying the transactions and duly shared a report with all the members of the CoC.
The applicant stated that he has taken various steps in the direction of trying to achieve a resolution of the Corporate Debtor and that he has examined the Final Resolution Plan received form the Resolution Applicant, which is approved by the members of the CoC. He has also addressed an e-mail to the Resolution Applicant dated 04.07.2019 inter alia communicating to the Resolution Applicant that the Final Resolution Plan submitted has been approved by the CoC. Therefore, as per the provisions of Section 31(1) of the Code, as approved by the CoC, it is binding on all the stakeholders, employees, members, creditors and guarantors of the Corporate Debtor. Thus, the Final Resolution plan being in compliance with the provisions of the Code and upon fulfilling all the criterion as required under the Code and the CIRP Regulations for it to be considered as a successful Resolution Applicant, it is imperative that it be allowed in order to protect the interests of the stakeholders including but not limited to the lenders, the employees, the members, the creditors and the guarantors.
However, for the sake of clarity and to have better understanding of the entire plan and to avoid any ambiguity, the plan as submitted by the Resolution Applicant and as approved by the CoC is hereby reproduced:
RESOLUTION PLAN
SUBMITTED PURSUANT TO THE
INSOLVENCY & BANKRUPTCY CODE, 2016
FOR RESOLUTION OF
NRC LIMITED
SUBMITTED BY:
Adani Properties Pvt. Ltd
Shikhar, Near Adani House,
Nr. Mithakhali Circle Navrangpura,
Ahmedabad-380 009
Gujarat, India
TABLE OF CONTENTS
COVERING LETTER... 10
OVERVIEW OF THE RESOLUTION APPLICANT... 13
SECTION 1 : EXECUTIVE SUMMARY OF THE RESOLUTION PLAN ... 16
SECTION 2 : FINANCIAL PROPOSAL ... 28
SECTION 3 : TREATMENT OF STAKEHOLDERS ... 31
SECTION 4 : ACQUISITION AS A GOING CONCERN ... 57
SECTION 5 : CONDUCT BETWEEN NCLT APPROVAL DATE AND EFFECTIVE DATE.. 63
SECTION 6 : RELIEFS AND WAIVERS ... 69
SECTION 7 : MANAGEMENT AND CONTROL OF THE CORPORATE DEBTOR ... 74
SECTION 8 : SUPERVISION AND IMPLEMENTATION OF THE RESOLUTION PLAN... 76
SECTION 9 : REGULATORY APPROVALS AND IMPLEMENTATION OF THE RESOLUTION PLAN ... 81
SECTION 10 : OTHER TERMS AND CONDITIONS... 85
PRAYER... 90
DEFINITIONS, ABBREVIATIONS AND INTERPRETATION... 94
INTERPRETATION... 104
MAPPING... 105
LIST OF SCHEDULES AND ANNEXURES THAT HAVE BEEN ATTACHED SEPARATELY108
SCHEDULE 1 - BUSINESS PLAN... 108
ANNEXURE-1 SALIENT TERMS AND CONDITIONS OF THE PROPOSAL ... 111
DETAILS OF THE KEY MANAGEMENT PERSONNEL... 112
ANNEXURE-2 COMPOSITION AND OWNERSHIP STRUCTURE OF THE RESOLUTION APPLICANT...ERROR! BOOKMARK NOT DEFINED.
COVERING LETTER
Resolution Applicant's Name: Adani Properties Private Limited
Full Address: "Shikhar", Nr. Adani House, Mithakhali Six Roads, Navrangpura, Ahmedabad - 380 009, Gujarat, India
Telephone No.: 079-25559750
Fax No.: 079-26565500
E-mail address: vishal.shah3@adani.com / aravind.balajee@adani.com
To, Mr. Vikas Prakash Gupta Resolution Professional of NRC Limited 3rd Floor, 84, Dholtawala Building, Jannabhumi Marg, opp. Siddharth College, Above Taste of Malabar Hotel, Fort, Mumbai - 440001 Maharashtra.
Subject: - Resolution Plan for NRC Limited
Dear Sir,
We, the undersigned Applicant having read and examined in detail the Request For Resolution Plan ("RFRP"), set out in the offer and related information for NRC Limited ("Corporate Debtor").
We enclose herewith the resolution plan, as amended from time to time until on June 27, 2019 (the "Resolution Plan"), including the Financial Proposal with duly signed and/or certified forms/documents/authorisations as mandated by the Resolution Professional and the Committee of Creditors, in the RFRP, for your consideration. This Resolution Plan is a comprehensive resolution plan by Adani Properties Private Limited ("Resolution Applicant") for insolvency resolution of the Corporate Debtor as a going concern (as required under law) along with all its assets, and delivers an all-encompassing solution for all stakeholders involved.
The Resolution Applicant hereby presents a comprehensive resolution plan for the Corporate Debtor which covers all the stakeholders of the Corporate Debtor. We believe that given our extensive experience, we are best placed to successfully implement the Resolution Plan. Our parent's deep local and global experience in the infrastructure businesses position us favourably for the same.
As per the requirement of Sr. No. 1 of the Appendix 2 of the RFRP, an Undertaking as per the format specified in Appendix 5 is enclosed with the Resolution Plan.
Capitalized terms used herein but not defined shall have the meaning ascribed to the term in the RFRP.
Yours faithfully,
For Adani Properties Private Limited,
Kunal Padhye, Authorised Signatory
Date: June 27, 2019
Place: Mumbai
TO, Mr. Vikas Prakash Gupta Resolution Professional of NRC Limited 3rd Floor, 84, Dholtawala Building, Janmabhumi Marg, opp. Siddharth College, Above Taste of Malabar Hotel, Fort, Mumbai - 440001 Maharashtra.
Adani Properties Private Limited
A company incorporated under the laws of India as a private company limited by shares
Registered Office: "Shikhar", Nr. Adani House, Mithakhali Six Roads, Navrangpura, Ahmedabad - 380009, Gujarat, India
Dated: May 10, 2019 (as amended from time to time until June 27, 2019)
Resolution Plan in relation to the corporate insolvency resolution process of NRC Limited, a company under corporate insolvency resolution process ("CIRP")
Compliance
This Resolution Plan is being submitted by Adani Properties Private Limited ("Resolution Applicant"), pursuant to the Request For Resolution Plan ("RFRP") issued by Mr. Vikas Prakash Gupta, the Resolution Professional appointed vide order dated November 27, 2018 of the Mumbai Bench of National Company Law Tribunal ("NCLT") in terms of the Insolvency and Bankruptcy Code, 2016 ("Code"), inviting submissions of resolution plans for NRC Limited ("Corporate Debtor").
This Resolution Plan contains relevant information and disclosures required under the RFRP. We confirm that the Resolution Applicant is eligible to propose a Resolution Plan in accordance with the provisions of the Code (including Section 29A of the Code) read along with relevant regulations.
The Resolution Applicant is submitting this Resolution Plan as part of the corporate insolvency resolution process of the Corporate Debtor. Implementation of the Resolution Plan is subject to approval of the Committee of Creditors of the Corporate Debtor ("COC"), the NCLT and the occurrence of the Effective Date (as defined hereinafter).
Information Conditions
The Resolution Plan is a confidential document and contains confidential information about the Resolution Applicant, Adani Properties Private Limited. The COC and the Resolution Professional shall maintain the confidentiality of all information and material provided by the Resolution Applicant in this Resolution Plan or in relation thereto, and the same shall not be disclosed in whole or in part to any person without its prior written consent, provided that it may be disclosed to the members of the COC and their respective employees, consultants or professional advisors on a strictly need to know basis subject to equivalent obligations of confidentiality.
The Resolution Plan may constitute confidential information and the recipient of this Resolution Plan agree(s) to comply with all Applicable Laws. However, for the avoidance of doubt, it is clarified that the foregoing confidentiality condition shall not be applicable to the submission of this Resolution Plan by the Resolution Professional to the NCLT in accordance with the provisions of the Code.
The Resolution Plan is a complete plan, and may be accepted as a whole. Any part acceptance, negotiation or modification of the Resolution Plan by the Resolution Professional in consultation with the COC will be valid only when accepted by the Resolution Applicant in writing.
The approval or acceptance of the Resolution Plan by the COC and the NCLT will create a binding obligation on the Resolution Applicant and on all the stakeholders in the resolution process, including all Creditors (whether admitted or not, contingent or otherwise) of the Corporate Debtor, in accordance with the provisions of the Code and the terms of the Resolution Plan.
The Resolution Applicant will not be held liable for any actions, inquiries, proceedings that may be initiated or threatened against the participants of the COC, the Resolution Professional or any of their respective advisors in relation to any matter in connection with the CIRP, save for liability arising out of any breach by the Resolution Applicant of any covenant or term contained in the Resolution Plan.
OVERVIEW OF THE RESOLUTION APPLICANT
Brief background of the Resolution Applicant
About the Adani Group
The Adani Group is one of the leading business conglomerates and the largest integrated infrastructure group in India. Over three decades, the group has emerged as a global player with business operations spread across key sectors like energy, ports, resources, logistics, real estate and agro, among others. Since inception, the group has been focused on serving the diverse needs of people, delivering strong value propositions and contributing to nation building along the way. The Adani Group is the:
Largest private thermal power producer in India Largest private transmission player in India Largest port operator in India Largest city gas distribution player in India Largest mine developer in India Largest edible oil player in India One of the largest renewable energy players in India, owns and operates the largest solar power plant in the world in Kamuthi, Tamil Nadu (788 MWDC)
The Adani Group has 6 listed entities on the Indian stock exchanges viz., Adani Enterprises Ltd. ("AEL"), Adani Power Ltd. ("APL"), Adani Port and Special Economic Zones Ltd. ("APSEZ"), Adani Transmission Ltd. ("ATL"), Adani Green Energy Ltd. ("AGEL") and Adani Gas Ltd. ("AGL") with a combined market cap of over INR 154,674 crore1.
About Adani Properties Private Limited
Adani Properties Private Limited was incorporated on May 25, 1995 as a private limited company and is the holding company for the Real Estate business of the Adani Group. The Resolution Applicant is a part of promoter and promoter group of various entities of Adani Group companies and holds strategic investment in AEL, APSEZ, APL, AGEL and ATL.
The Resolution Applicant is backed by promoters and management who have a strong track record of acquisition and turnaround of distressed companies post acquisition.
(a)Udupi Power Company Limited - APL acquired the 1,200 MW power plant from Lanco Infratech Ltd. in April 2015. APL has implemented its high standards of project operations to help improve the project life and operating parameters. The plant load factor has improved by (18%), auxiliary consumption has improved by (12%), along with refinancing of entire project debt in the period post commissioning. The credit rating of the target increased by 13 notches post acquisition from 'D' to 'A'.
(b)Dhamra Port Company Limited - APSEZ acquired the Dhamra Port in Odisha in May 2014. Post-acquisition, the Adani Group has introduced efficiency improvement measures, capex and expansion which has led to increase in cargo by (50%) and increase in capacity by (40%). APSEZ has undertaken an ambitious expansion plan to transform the port from a bulk handling port to a multi-commodity port including 12 bulk berths, 4 containers, LNG and LPG terminals.
(c)Kattupalli Port - APSEZ successfully completed acquisition of Kattupalli port from L&T Shipbuilding Ltd. in June 2018 with the
Market capitalization as on January 07, 2019 aim of increasing its foot print on the east coast. APSEZ took over operations of the port from November 2015. Since then the company has introduced several efficiency improvement and expansion measures increasing throughput by more than 10x and increasing average parcel size by 2.6x. Revenue and EBITDA for the port have accordingly increased from INR 24 Crore and INR 4 Crore in FY 2015-16 to INR 150 Crore and INR 88 Crore respectively in FY 2016-17.
The group also has a track record of executing large and complex projects. Some of the marquee projects executed by the group include -
(a)Mundra Thermal Power Plant (4,620 MW) - The (3^{\text{rd}}) largest single location privately owned coal based thermal power plant in the world. The first supercritical project in India, it was commissioned in a record time (36 months) and involved (>20,000) contract labour working at site. The project also involved construction of the 989 km HVDC transmission line, the first privately owned HVDC transmission line in India commissioned within record time of 24 months from inception.
(b)Kamuthi Solar Project (648 MWAC, 778 MWDC) - The largest single location solar power plant in the world (spread over 2,340 acres) located in Kamuthi, Tamil Nadu is designed, executed and operated by the Adani Group. The project involved over 8,500 personnel deployed on site, acquisition of 2,340 acres of land, 2.5 million solar modules, and 380,000 foundations constructed on site, 30,000 MT of cement consumption. The project was constructed in a record time of 11 months in the state of Tamil Nadu, despite the loss of 2 months due to the worst floods in the recent history of the state. In comparison, the then largest solar power plant took over 3.25 years to complete in the state of California, United States of America. The project has won many awards and has featured on the prestigious National Geographic documentary – “Megastructures – India’s Solar Power House”.
(c)Mundra Port (122 MMT cargo in FY 2017-18) - India's largest commercial port by cargo volume with deep draft all weather capability. Port The port has 26 berths with annual capacity to handle 231 MMT cargo with dedicated terminals for different cargo and commodity types including world's largest coal import terminal. Mundra port is the (2^{\text{nd}}) largest port in India by container volumes handling 5 mn TEUs in FY 2017-18.
(d)Details of the composition and ownership structure of the Resolution Applicant and the Adani Group, the credit worthiness and financial capability of the Resolution Applicant are set out in Annexure 2 (Composition & Ownership Structure of the Resolution Applicant) of the Resolution Plan.
SECTION 1: EXECUTIVE SUMMARY OF THE RESOLUTION PLAN
1.1 Summary of debt owed to Financial and Operational Creditor
As per the Information Memorandum and information made available in the Virtual Data Room and the List of Creditors, the total Claim(s) filed by the Creditors are summarized below:
(INR in crores)
Category of Creditor Claims filed Claims admitted Amount Rejected Claims under verification Contingent Claims Financial Creditors 1,175.51 1,175.51 - - - Employees and Workmen* (See note 1) 2,537.40 144.99 4.88 1,017.78 1,369.75
Category of Creditor Claims filed Claims admitted Amount Rejected Claims under verification Contingent Claims Government and Statutory Authorities 27.12 1.84 - - 25.28 Operational Creditors (Other than Employees and Workmen and Government and Statutory Authorities) 139.97 52.77 42.48 5.29 39.43 TOTAL 3,880.00 1,375.11 47.36 1,023.07 1,434.46 *Note 1: The Resolution Applicant has been informed by the Resolution Professional claims on behalf of Workmen have been filed by two labour unions, namely, NRC Mazdoor Sangh and All India Industrial and General Workers Union. The Resolution Professional has further informed the Resolution Applicant that the necessary details and documents in relation to the said claims have not been made available to the Resolution Professional and that the Resolution Professional has made a best estimate of amount based on the claim made and information available, and admitted the claims of Workmen in their individual names instead of the unions for the pre-lockout period. Since the claims after the lockout period are subject matter of dispute before Hon'ble Industrial Court Thane, the Resolution Professional has kept the claims for post lock out period as contingent claims.
The Resolution Applicant understands that a large part of the claims filed by Workmen are either under verification or shown as contingent claims. The Resolution Applicant will pay an amount not exceeding Rs.32.16 crores towards the claims of Employees and Workmen. The Resolution Professional is expected to finalise the amount of admitted claims before final submission of the Resolution Plan to the NCLT.
1.2 Summary of Financial Proposal and Other Material Terms
A. Financial Proposal
The Resolution Applicant proposes to make a total payment of an amount not exceeding INR 160 Crores under this Resolution Plan. The Resolution Applicant proposes to make upfront payment towards payment of the CIRP Costs, payment of Outstanding Contributions (as defined hereinafter), payment of Termination Benefits (as defined hereinafter) and one time settlement of all Claims against the Corporate Debtor (including but not limited to the Claims of the Financial Creditors, Employees and Workmen, Government and Statutory Authorities, and Other Operational Creditors) whether asserted or unasserted, whether admitted, or contingent or otherwise, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, whether or not set out in the Information Memorandum, the Virtual Data Room, the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate Debtor, as set out in the table below and detailed further in Part I (Financial Proposal) of this Resolution Plan.
Upon payment in the manner specified below, the Corporate Debtor or the Resolution Applicant shall have no liability to make any payments to any stakeholder of the Corporate Debtor, including any Creditor whether the Financial Creditors, Employees, Workmen, Government and Statutory Authorities, Other Operational Creditors, shareholders or any other stakeholder and all liabilities of the Corporate Debtor towards the Creditors and other stakeholders shall be extinguished and settled, on and from the Effective Date. The payment to be made to operational creditors, Government and Statutory Authorities and Other Operational Creditors shall be in compliance with the requirements of Section 30(2)(b) of the Code.
Stakeholders Our Proposal Financial Creditors (i) The Resolution Applicant will make payment of INR 120 Crore to the Financial Creditors ("Financial Creditor Payments"), as consideration for acquisition / novation of the Admitted Financial Creditor Debt ("Admitted Financial Creditor Debt Acquisition") from the Financial Creditors, as specified in Annexure 1 (Salient Terms and Conditions of the Proposal) of this Resolution Plan. All Admitted Financial Creditor Debt shall be transferred, assigned or novated (as the case may be) on the same terms and conditions (including any contractual comforts) in favour of the Resolution Applicant, or such other entity identified by the Resolution Applicant, on the same terms and conditions, in a form and manner satisfactory to the Resolution Applicant. The manner of distribution of the Financial Creditor Payments between the Financial Creditors shall be pro-rata to the Admitted Financial Creditor Debt. Upon payment of the Financial Creditor Payments, neither the Corporate Debtor nor the Resolution Applicant shall have any liability to make any payments to any Financial Creditor and all liabilities of the Corporate Debtor and the Resolution Applicant towards the Financial Creditors shall
be settled fully and finally, on and from the Effective Date. Upon completion of the Admitted Financial Creditor Debt Acquisition, the Financial Creditors shall have no further liability towards the Resolution Applicant or the Corporate Debtor. (ii) Financial Restructuring: Post the acquisition of the Admitted Financial Creditor Debt by the Resolution Applicant, such debt will be restructured at such time and on such terms as the Resolution Applicant and the Corporate Debtor, may deem fit, including by way of conversion of all or part of the Admitted Financial Creditor Debt into equity shares of the Corporate Debtor, having regard to all Tax, and other considerations. (iii) The terms of novation, assignment or acquisition of such debt by the Resolution Applicant or any other eligible entity shall be with regard to all relevant commercial and other considerations. CIRP Costs The Corporate Debtor will, out of the Fund Infusion, make payment of INR 1 Crore, as specified in sub-section 3.1 (Payment of CIRP Costs) of Part II (Treatment of Stakeholders) of this Resolution Plan, towards payment of CIRP Costs. The Resolution Applicant agrees that the amounts to be paid toward CIRP Costs shall be determined by Resolution Professional and the COC and shall be communicated by the Resolution Professional to the Resolution Applicant as soon as practicable after the NCLT Approval Date and in any event no later than 10 (ten) days from the date thereof.
Employees and Workmen Payment The Corporate Debtor will, out of the Fund Infusion, make payment of INR 32.16 Crores to the Employees and Workmen ("Employees and Workmen Payments") in one or more tranches towards payment of Outstanding Contributions (as defined hereinafter), payment of Termination Benefits (as defined hereinafter) and full and final settlement of the Employee Claims and the Workmen Claims, whether asserted or unasserted, admitted or not, under verification or contingent, or otherwise, crystallised, uncrystallised, disputed or undisputed, whether such Claims have been submitted by the Employees or Workmen directly, or through representatives or the Unions. The details of such Employees and Workmen Payments are specified in sub-section 3.3.5 (Treatment of Dues to Employees and Workmen) of Part II (Treatment of Stakeholders) of this Resolution Plan. The distribution of the Employees and Workmen Payments among the Employees and Workmen in full and final settlement (without admitting any liability of either the Corporate Debtor or the Resolution Applicant towards such Claims) of all Claims from the Employees and Workmen (whether submitted directly or through representatives or the Unions) shall be as per the directions of the NCLT. Government and Statutory Authorities Payment The Corporate Debtor will, out of the Fund Infusion, make payment of INR 3.00 Crores to Government and Statutory Authorities ("Government and Statutory Authorities Payments") in one or more tranches towards full and final settlement of the Admitted Government and Statutory Authorities Claims of the Government and Statutory Authorities. The details of the Government and Statutory Authorities Payments are specified in sub-section 3.3.6 (Treatment of Dues to Government and
Statutory Authorities) of Part II (Treatment of Stakeholders) of this Resolution Plan. Operational Creditors (Other than Employees, Workmen, and Government and Statutory Authorities) The Corporate Debtor will, out of the Fund Infusion, make payment of INR 5 Crores to Operational Creditors (other than Employees, Workmen and Government and Statutory Authorities) ("Other Operational Creditor Payments") in one or more tranches, towards full and final settlement of the Admitted Other Operational Creditor Claims of the Other Operational Creditors. The details of the Other Operational Creditor Payments are specified in sub-section 3.3.7 (Treatment of Other Operational Creditors) of Part II (Treatment of Stakeholders) of this Resolution Plan. The Other Operational Creditors Payments shall be in compliance with the requirements of Section 30(2)(b) of the Code. The distribution of the Other Operational Creditor Payments among the Other Operational Creditors shall be pro rata to the Admitted Other Operational Creditors Payments. Fund infusion for improvement of operations of the Corporate Debtor The Resolution Applicant will infuse funds, in one or more tranches, into the Corporate Debtor ("Fund Infusion") which shall be utilized for funding (i) payment of CIRP Costs, (ii) Employees and Workmen Payment (including payment of Outstanding Contributions and Termination Benefits), as applicable, Government and Statutory Authority Payments and Other Operational Creditor Payments, (iii) meeting the working capital and/or capital expenditure requirements of the proposed business of the Corporate Debtor and / or (iv) other operational improvements of the Corporate Debtor. The Resolution Applicant may at its discretion infuse such additional amounts over and above the amount stated above as may be required for improving the business operations of the Corporate Debtor. The Resolution Applicant reserves the liberty to alter the inter se distribution of payments pursuant to this Resolution Plan, if required, with the consent of the COC. The Resolution Applicant will not make any payments other than as specified in Part I (Financial Proposal) of this Resolution Plan, for settlement of dues payable to any stakeholder, whether the Claims of such Creditors have been admitted or not by the Resolution Professional, or contingent or otherwise.
B. Other Material Terms
(i)The Resolution Applicant understands that the Corporate Debtor may have outstanding contributions to be made under provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and the Payment of Gratuity Act, 1972 for the period prior to the declaration of the Lock-out ("Outstanding Contributions") and that the amounts of such Outstanding Contributions are not assets of the Corporate Debtor but assets held by the Corporate Debtor in trust for their beneficiaries. The Resolution Applicant / Corporate Debtor are not liable to make payment of Outstanding Contributions as a condition of this Resolution Plan. The Resolution Applicant proposes to make payment of Employees and Workmen Payments towards settlement of Outstanding Contributions and Termination Benefits (as defined hereinafter) as a measure of this Resolution Plan. Neither the Resolution Applicant nor the Corporate Debtor will be required to make any contributions under provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and the Payment of Gratuity Act, 1972 or any such other contribution or payment for any period after the declaration of the Lock-out.
(ii)There shall be, with effect from the Effective Date, discontinuation of services / retrenchment of all Workmen / Employees in terms of Section 25FF of the Industrial Disputes Act, 1947. The liability of the Corporate Debtor will to make payment retrenchment compensation, if any ("Termination Benefits") to the Employees and Workmen required under the Industrial Disputes Act, 1947 shall be limited to the Employees and Workmen Payments and no further claim shall lie against either the Resolution Applicant or the Corporate Debtor.
(iii)All adverse inquiries, investigations, notices, causes of action, suits, claims, disputes, litigation, arbitration or other judicial, regulatory or administrative proceedings (collectively, "Proceedings") against, the Corporate Debtor or the affairs of the Corporate Debtor, in relation to any matter whatsoever, whether pending or threatened, present or future, (including without limitation, any investigation by any Government or Statutory Authority) that have been initiated or are threatened to be initiated against the Corporate Debtor (including those proceedings that relate to claims of Workmen / Employees) shall stand automatically abated, withdrawn, dismissed (as the case may be) with effect from the NCLT Approval Date. To the extent that any Proceedings cannot be automatically abated, withdrawn, dismissed in terms of Applicable Law, it is clarified that the neither the Corporate Debtor nor the Resolution Applicant will be liable for any claims that may be adjudicated in such Proceedings as the transferee company under Section 25FF of the Industrial Disputes Act, 1947.
(iv)In terms of Section 22 of the Maharashtra Rent Control Act, 1999, if the tenant ceases to be in service of the landlord either by retirement, resignation, termination of service, death or for any other reason, the tenant or any other person residing with him or claiming under him is required to vacate the premises occupied. Accordingly, on the NCLT Approval Date, and upon termination of services / retrenchment in terms of the Resolution Plan, the Employees, Workmen or any Person residing with or claiming through them (as applicable) shall be required to vacate the premises occupied by them on any property owned by the Corporate Debtor including any property that is the subject matter of the Raheja Arbitration (as defined hereinafter) without any further delay or demur and all the rights, title and interest of the Corporate Debtor in such properties shall continue to and be and deemed to be vested with the Corporate Debtor, free and clear of all Encumbrances upon occurrence of the NCLT Approval Date. The Resolution Applicant and the Corporate Debtor shall be entitled to take such steps as may be required under the Applicable Laws to recover the vacant possession of the properties of the Corporate Debtor from any present or former Employee or Workmen of the Corporate Debtor or any Person claiming through them.
(v)The arbitration proceedings initiated by Raheja Universal Pvt. Ltd. against the Corporate Debtor pursuant to its arbitration notice dated June 12, 2014 (in terms of the Agreement For Sale dated March 1, 2007) ("Raheja Arbitration") and pending before the arbitral tribunal comprising of Justice Sujata Manohar (Presiding Arbitrator), Justice S.N. Variava (Co-Arbitrator) and Justice D.K. Deshmukh (Co-Arbitrator) shall continue unabated and nothing in this Resolution Plan shall have the effect of cancelling, withdrawing or dismissing such arbitration proceedings. The Resolution Applicant shall be entitled to join the arbitration proceedings and take all such measures as may be necessary in compliance with the Applicable Law.
1.3 Indemnity
The Resolution Applicant undertakes to indemnify the Resolution Professional and his team and COC ("Indemnified Parties") for actual and direct losses incurred by the Indemnified Parties for acts done in good faith and in accordance with Applicable Law which losses are finally adjudicated by a court or tribunal to have arisen on account of breach of this Resolution Plan by the Resolution Applicant and confirms that this indemnity obligation shall survive expiry of the CIRP. It is further clarified that no claim shall be made by the Indemnified Parties against the Resolution Applicant and the Resolution Applicant shall not be liable for:
(i)any loss that may be incurred in the event that the NCLT Approval Date does not occur; or
(ii)any loss which has been recovered (whether in whole or in part) by the Indemnified Parties under an insurance policy in force; or
(iii)the cost incurred by the COC pursuant to a litigation challenging the invocation of guarantee, or liability of the Promoters to pay under such guarantee; or
(iv)any loss incurred by any Indemnified Party due to any claim made or proceeding filed by any Indemnified Party against another Indemnified Party, save and except if such claim or proceeding is on account of failure of the Resolution Applicant to implement the Resolution Plan fully; or
(v)any loss that may be suffered by, or any direct or indirect taxes (including any penalties) that may be payable by, any Creditor as a result of any write-off or extinguishment of any debt or claim pursuant to this Resolution Plan.
1.4Declaration that Resolution Plan is not in contravention of provisions of the Applicable Law
The Resolution Applicant hereby declares, that the Resolution Plan does not contravene any provisions of Applicable Law.
1.5 Term of the Resolution Plan and its Implementation
The implementation of the Resolution Plan shall commence immediately from the NCLT Approval Date, and completion of the implementation of the Resolution Plan shall be carried out in accordance with the steps set out in Section 4 (Acquisition as a going concern), Section 5 (Conduct between NCLT Approval Date and Effective Date) of Part III (Transaction Structure) of the Resolution Plan, and performance of all other actions as set out in this Resolution Plan, subject to satisfaction, or waiver by the Resolution Applicant, as the case may be, of the Condition Precedent.
The sequence of events has been set out in greater detail in Section 9.5 (Indicative Timeline of Events for Implementation of Resolution Plan) of this Resolution Plan.
1.6 Other information as required in terms of the IBBI (CIRP) Regulations
The Resolution Applicant confirms that neither the Resolution Applicant nor any of its related parties have failed to implement or contributed to the failure of implementation of any other resolution plan approved by the NCLT at any time in the past.
PART I - Financial Proposal
SECTION 2 : FINANCIAL PROPOSAL
This Resolution Plan is a full and comprehensive proposal for the insolvency resolution of the Corporate Debtor and deliver an all-encompassing solution for all the stakeholders of the Corporate Debtor. For the removal of doubt, it is hereby clarified that upon implementation of the Resolution Plan, all the rights, title and interest of the Corporate Debtor in all its Assets (including, subject to the final award in the Raheja Arbitration, the Assets which are subject to the Raheja Arbitration) shall vest with the Corporate Debtor free and clear of all Encumbrances and encroachments, except as specifically set out in this Resolution Plan.
Other than as expressly provided under this Resolution Plan, no payment or settlement (of any nature or in kind) is proposed to be made to any other Person in respect of any claim, whether filed or not, whether admitted or not and any related suit, proceedings or other action shall stand irrevocably and unconditionally abated, settled and extinguished in perpetuity.
2.1 Salient Terms and Conditions of the Financial Proposal
The salient terms and conditions of the Financial Proposal are provided in Annexure 1 (Salient Terms and Conditions of the Proposal) of this Resolution Plan in the manner prescribed by the RFRP.
2.2 Acquisition of Management Control
In accordance with Section 4 (Acquisition as a going concern), the initial equity investment by the Resolution Applicant in the Corporate Debtor shall be the Upfront Equity Infusion aggregating to INR 10.00 Crores in respect of which the Resolution Applicant will subscribe to and will be allotted equity shares of the Corporate Debtor. Additionally, as an integral part of the Acquisition and equity shares having been issued to the Resolution Applicant, Capital Reduction shall take place without any further act, deed or instrument. Implementation of the Acquisition and the Resolution Plan in terms of the order of the NCLT approving this Resolution Plan shall be deemed to be due compliance of all provisions of Applicable Laws in this regard, and there shall be no requirement to add "and reduced" in the name of the Corporate Debtor. It is clarified that the Upfront Equity Infusion shall be a part of the Fund Infusion.
The Corporate Debtor has been compulsorily delisted from the BSE Limited with effect from July 4, 2018 and from the National Stock Exchange of India Limited with effect from August 8, 2018. The Resolution Applicant does not in any manner undertake any obligation to make any payment to any shareholder of the Corporate Debtor, including to any public shareholder pursuant to the Securities and Exchange Board of India (Delisting of Equity Shares) Regulations, 2009.
Provided below the proposed final shareholding pattern of the Corporate Debtor post the Acquisition:
Category of Shareholder Percentage of Share Capital in the Corporate Debtor Resolution Applicant and/ or its Affiliate and/ or its Nominee 100 % 2.3 Proposal for Admitted Financial Creditor Debt
After the Acquisition and related Capital Reduction, the Financial Creditor Payment shall be paid as consideration to the Financial Creditors for the transfer, assignment or novation of the Admitted Financial Creditor Debt to the Resolution Applicant or such other entity identified by the Resolution Applicant, on the same terms and conditions, in a form and manner satisfactory to the Resolution Applicant.
2.4 Proposal for Funding by the Successful Applicant
Fund Infusion: Fund Infusion shall be undertaken as per Section 1.2 (Fund infusion for improvement of the operations of the Corporate Debtor), into the Corporate Debtor. Such Fund Infusion shall be utilized for funding (i) payment of CIRP Costs, (ii) Employees and Workmen Payments (including payment of Outstanding Contributions and Termination Benefits), as applicable, Government and Statutory Authority Payments and Other Operational Creditor Payments, (iii) meeting the working capital and/or capital expenditure requirements of the proposed business of the Corporate Debtor and / or (iv) other operational improvements of the Corporate Debtor. The Resolution Applicant may at its discretion infuse such additional amounts over and above the amount stated above as may be required for improving the business operations of the Corporate Debtor.
2.5 Proposed Timelines for completion of funding by the Resolution Applicant
To ensure that the Corporate Debtor and Resolution Applicant make all mandatory payments in accordance with the Code and settle all relevant dues in accordance with the Resolution Plan, the Resolution Applicant, either directly or through the Corporate Debtor, will make payment of INR 160 Crores on or before 30 days of the NCLT Approval Date, provided that no appeal is pending before any Appellate Authority challenging this Resolution Plan on or before the Effective Date. The Resolution Applicant may decide to make the aforesaid payment in advance of the aforesaid date at its discretion. The Resolution Applicant will infuse further amounts as required under this Resolution Plan on or after the Effective Date.
2.6 Proposal for Claims of Operational Creditors
The Corporate Debtor will, out of the Fund Infusion, make payment to the Operational Creditors as follows:
(i)Employees and Workmen Payments to the Employees and Workmen, including payment of Outstanding Contribution and Termination Benefits;
(ii)Government and Statutory Authority Payments to the Government and Statutory Authorities;
(iii)Other Operational Creditor Payments to Operational Creditors (Other than Employees, Workmen and Government and Statutory Authorities),
in each case towards full and final settlement of the respective Admitted Claims of such Operational Creditors.
PART II - Treatment of Stakeholders
SECTION 3 : TREATMENT OF STAKEHOLDERS
The Resolution Applicant proposes to make a total payment of an amount not exceeding INR 160 Crores under this Resolution Plan. The Resolution Applicant proposes to make upfront payment towards payment of the CIRP Costs, payment of Outstanding Contributions, payment of Termination Benefits and one time settlement of all Claims against the Corporate Debtor (including but not limited to the Claims of the Financial Creditors, Employees and Workmen, Government and Statutory Authorities, and Other Operational Creditors) whether asserted or unasserted, whether admitted or otherwise, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, whether or not set out in the Information Memorandum, the Virtual Data Room, the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate Debtor, as set out in this Section 3.
Upon payment in the manner specified in this Section 3 and Clause 1.2 (A), the Corporate Debtor or the Resolution Applicant shall have no liability to make any payments to any stakeholder of the Corporate Debtor, including any Creditor whether the Financial Creditors, Employees, Workmen, Government and Statutory Authorities, Other Operational Creditors, shareholders or any other stakeholder and all liabilities of the Corporate Debtor towards the Creditors and other stakeholders shall be extinguished and settled, on and from the Effective Date.
We have set out below detailed terms of our proposal for the treatment of the interests of all stakeholders.
3.1 Payment of CIRP Costs
3.1.1In accordance with the Code, the Corporate Debtor will, out of the Fund Infusion, make payment of the unpaid CIRP Costs, in priority over payments to any other Creditors on Effective Date. Once the CIRP Costs have been paid in full as set out above, it is clarified that no claims, liabilities, fines, costs, expenses or any other payment of such nature or otherwise, that are or are claimed to constitute CIRP Costs shall be payable by the Corporate Debtor or the Resolution Applicant.
3.2 Treatment of Financial Creditors
Payments under the Resolution Plan
3.2.1According to the List of Creditors of the Corporate Debtor as provided in the Virtual Data Room, Admitted Financial Creditor Debt is as stated in sub-section 1.1 hereof.
3.2.2On the Effective Date: The Resolution Applicant will make payment of the Financial Creditor Payments to the Financial Creditor as consideration for acquisition / novation (as the case may be) on the same terms and conditions (including any contractual comforts) of the Admitted Financial Creditor Debt by the Resolution Applicant.
For the avoidance of doubt, all accrued or unpaid interest, including penal interest, fees, commission, charges etc. in relation to the Financial Debt of the Corporate Debtor, arising on or after CIRP Commencement Date in respect of the Corporate Debtor and until the Effective Date will by virtue of the order of the NCLT approving this Resolution Plan be deemed to: (i) be permanently extinguished; and (ii) have stopped accruing on and from CIRP Commencement Date and the Corporate Debtor, or the Resolution Applicant, shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto. All liabilities of the Corporate Debtor, in relation to the Admitted Financial Creditor Debt (if any) towards the Financial Creditors shall be permanently settled in full on and from the Admitted Financial Creditor Debt Acquisition, and the Corporate Debtor or the Resolution Applicant, shall at no point of time be, directly or indirectly, held responsible or liable to make any payments to the Financial Creditors other than the Financial Creditor Payments.
Post the acquisition of the Admitted Financial Creditor Debt by the Resolution Applicant, such debt may be restructured at such time and on such terms as the Resolution Applicant and the Corporate Debtor, may deem fit, including by way of conversion of all or part of the Admitted Financial Creditor Debt into equity shares of the Corporate Debtor, having regard to all Tax, and other relevant considerations. It is clarified that the Security (as defined hereinafter) shall be transferred or assigned to the Resolution Applicant or such other entity identified by the Resolution Applicant and will continue to be available to the Resolution Applicant or such other entity post the Admitted Financial Creditor Debt Acquisition, on the same terms and conditions, irrespective of any restructuring of Admitted Financial Creditor Debt carried out by the Resolution Applicant along with the Corporate Debtor, in accordance with Applicable Law.
3.2.3All liabilities of the Corporate Debtor in relation to any letters of credit, letters of comfort, post-dated cheques, letters of awareness, letters of undertaking, guarantees, counter guarantees, corporate guarantees, bank guarantees, performance guarantees for any other Persons, indemnity, undertaking, or similar obligations in respect of any debt or other obligation of the Corporate Debtor, whether any claims in respect thereof have been admitted in the CIRP or not, along with any other contingent or future claims, liabilities and/or commitments of any nature whatsoever issued by, or on behalf of, or at the behest of, the Corporate Debtor, or incurred or undertaken by the Corporate Debtor (as the case may be), till the Effective Date, whether asserted or unasserted, whether admitted or not, under verification, contingent or otherwise, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, whether or not set out in the Information Memorandum, the Virtual Data Room, the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate Debtor, will be, and be deemed to be, permanently extinguished, by virtue of the NCLT Approval of this Resolution Plan and all liabilities of the Corporate Debtor in relation thereto will be written-off in full. The Corporate Debtor or the Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto. No rights of subrogation, indemnity or action against the Corporate Debtor will survive and all related financial liabilities of the Corporate Debtor, whether admitted or not, due or contingent, asserted or unasserted, crystallised or uncrystallised, known or unknown, disputed or undisputed, in relation to any period till the CIRP Commencement Date or arising on account of the transactions contemplated in this Resolution Plan (including the Acquisition of control by the Resolution Applicant over the Corporate Debtor pursuant to this Resolution Plan) in relation to any guarantee or other third party security of any nature, in respect of which such third parties ("Third Party Security Provider") may have rights against the Corporate Debtor, which may have been provided or issued by any Person in support of, for the benefit of, or at the behest of the Corporate Debtor or for any other reason whatsoever ("Credit Enhancement"), shall stand cancelled and terminated without any liabilities accruing to the Corporate Debtor or the Resolution Applicant, and will be treated as extinguished, as the case may be, on the Effective Date. It is clarified that extinguishment of any subrogation or indemnity rights of any Third Party Security Provider shall be without prejudice to the rights of the beneficiaries of any Credit Enhancement to make claims against such Third Party Security Providers (including for any losses suffered by such beneficiaries in relation to such Credit Enhancements). It is also clarified that the issuer of any guarantees issued in support of, for the benefit of, or at the behest of the Corporate Debtor, will do all acts and execute all agreements/documents as may be necessary to record the extinguishment of the subrogation rights of such guarantor of the Corporate Debtor, if required by the Corporate Debtor or the Resolution Applicant, as the case may be.
3.2.4Post the Admitted Financial Creditor Debt Acquisition in accordance with sub-section 3.2.2 (Treatment of Financial Creditors), any and all other rights and entitlements of any actual or potential Financial Creditors of the Corporate Debtor (including any person who may claim to be such a creditor by way of exercise of rights under Applicable Laws or equity), whether admitted or not, due or contingent, asserted or unasserted, crystallised or uncrystallised, known or unknown, disputed or undisputed, in relation to any period till the Effective Date, shall be deemed to be permanently extinguished on the Effective Date. The Corporate Debtor or the Resolution Applicant shall at no point of time, directly or indirectly, have any obligation, liability or duty in relation thereto. All dues owed to Financial Creditors as against the Corporate Debtor or the Resolution Applicant, shall be deemed to be settled fully and finally and be deemed to be assigned / novated to the Resolution Applicant on the Effective Date. Accordingly, no Financial Creditor shall bring, initiate or issue any notices, suits, claims, disputes, litigations, arbitrations or other judicial, regulatory or administrative proceedings against, the Corporate Debtor for recovery of, or in relation to, the Admitted Financial Creditor Debt.
3.2.5Other than as specifically addressed in accordance with the provisions of this Resolution Plan, and subject to the provisions of the Code, any and all other Claims, rights and entitlements of any Financial Creditors of the Corporate Debtor not otherwise expressly addressed in this Resolution Plan, whether admitted or not, due or contingent, asserted or unasserted, crystallised or uncrystallised, known or unknown, disputed or undisputed, present or future, arising on account of the acquisition of control by the Resolution Applicant over the Corporate Debtor pursuant to this Resolution Plan, or on account of the measures contemplated under this Resolution Plan, in relation to any period till the Effective Date shall be deemed to be permanently extinguished, and any related contracts (including any loan agreements, term sheets and security documents) entered into by the Corporate Debtor with such Financial Creditors in relation to any such Claims will be deemed to be terminated without any liabilities, claims or obligations whatsoever arising out of or in relation to such contracts, on the Effective Date, the Corporate Debtor or the Resolution Applicant shall at no point of time, directly or indirectly, have any obligation, liability or duty in relation thereto.
3.2.6Notwithstanding anything contained in this Resolution Plan and without prejudice to Section 3.2.3, Admitted Financial Creditor Debt Acquisition or extinguishment or restructuring of any financial liability of the Corporate Debtor will not result in the extinguishment of any claims that the Resolution Applicant and / or any the Financial Creditors may have against the Promoters and /or any Third Party Security Provider under any contractual arrangements and/or as a result of any Credit Enhancements issued by the Promoters or such Third Party Security Provider.
3.3 Treatment of Operational Creditors
3.3.1As per the Virtual Data Room, Operational Creditors of the Corporate Debtor include Employees, Workmen, Government and Statutory Authorities, and Other Operational Creditors. Claim(s), as stated in sub-section 1.1 hereof have been verified and admitted for the purposes of the CIRP by the Resolution Professional ("Admitted Operational Creditor Debt"). 3.3.2 It is clarified for the avoidance of doubt that all Governmental and Statutory Authority claims (whether filed or admitted or not) are Claims and Debt (as defined under the Code) as applicable, and would consequently qualify as Claims of Operational Creditors. Accordingly, the terms of this Resolution Plan applicable to Operational Creditors shall be binding on the Governmental and Statutory Authorities as well.
3.3.3For avoidance of doubt, it is hereby clarified that even if any Claims of Operational Creditors are admitted at a later stage for any reason whatsoever, then the same shall be treated in the same manner as set out in this Resolution Plan. 3.3.4 Section 30 of the Code requires that the payment of the debt of the Operational Creditors (including any Government and Statutory Authorities) shall not be less than the amount as would have been paid to them in case of liquidation of the Corporate Debtor. Further, as per Regulation 38 of the IBBI (CIRP) Regulations, the amount due to the Operational Creditors (including any Government and Statutory Authorities) under a resolution plan shall be given priority in payments to Financial Creditors. In the Resolution Applicant's assessment, the Employees and Workmen Payment proposed under this Resolution is higher than the liquidation value due to Employees and Workmen, the Government and Statutory Authorities Payment proposed under this Resolution Plan is higher than the liquidation value due to Government and Statutory Authorities and the Other Operational Creditors Payments proposed in this Resolution Plan is higher than the liquidation value due to Operational Creditors (Other than the Employees, Workmen and Government and Statutory Authorities). The Resolution Applicant undertakes to make such payments to all Operational Creditors (including any Government and Statutory Authorities) (if any) in respect of their Admitted Operational Creditors Debt, as stated in this Resolution Plan. Post such payment, all dues of the Operational Creditors (including Workmen and Employees) shall be written off in full and shall be, and be deemed to be, permanently extinguished as on the NCLT Approval Date.
3.3.5 Treatment of Dues to Employees and Workmen
(a)The Corporate Debtor will, out of the Fund Infusion, make payment of the Employees and Workmen Payment in one or more tranches. It is clarified that the Employees and Workmen Payment shall be made within such time as prescribed under the Code and the IBBI (CIRP) Regulations. Further, it is clarified that such Employees and Workmen Payments shall be paid to the Employees and Workmen in priority to any payments being made to the Financial Creditors.
(b)The Employees and Workmen Payments shall be applied towards payment of Outstanding Contributions (as defined hereinafter), payment of Termination Benefits (as defined hereinafter) and full and final settlement of the Employee Claims and the Workmen Claims, whether such Claims have been submitted by the Employees or Workmen directly, or through representative or the Unions.
(c)The Resolution Applicant understands that the Corporate Debtor may have Outstanding Contributions and that the amounts of such Outstanding Contributions are not assets of the Corporate Debtor but assets held by the Corporate Debtor in trust for their beneficiaries. The Resolution Applicant / Corporate Debtor are not liable to make payment of Outstanding Contributions as a condition of this Resolution Plan. The Resolution Applicant proposes to make payment of Employees and Workmen Payments towards settlement of Outstanding Contributions and Termination Benefits as a measure of this Resolution. Neither the Resolution Applicant nor the Corporate Debtor will be required to make any contributions under provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and the Payment of Gratuity Act, 1972 or any such other contribution or payment for any period after the declaration of the Lock-out.
(d)There shall be, with effect from the Effective Date, discontinuation of services / retrenchment of all Workmen / Employees in terms of Section 25FF of the Industrial Disputes Act, 1947. The liability of the Corporate Debtor to make payment of Termination Benefits to the Employees and Workmen under the Industrial Disputes Act, 1947 shall be limited to the Employees and Workmen Payments and no further claim shall lie against either the Resolution Applicant or the Corporate Debtor
(e)In the event that the Employees and Workmen Payments are less than the admitted claims of the Employees and Workmen, the distribution of the Employees and Workmen Payments among the Employees and Workmen shall be pro rata to the Employees Claims and Workmen Claims.
(f)The payment of Employees and Workmen Payments shall be, in full and final settlement of all the Employee Claims and the Workmen Claims, whether asserted or unasserted, admitted or not, crystallised, uncrystallised, disputed or undisputed and whether such Claims have been submitted by the Employees or Workmen directly, or through representatives or the Unions., and Outstanding Contributions and Termination Benefits, as applicable. All employees and workmen shall be deemed to have relinquished any claim for any dues other than the Employees and Workmen Payments. Other than in respect of the Employees and Workmen Payments, any and all claims or demands made by, or liabilities or obligations owed or payable to, (including any demand for any losses or damages, or interest, back wages, compensation, penal interest, liquidated damages already accrued/ accruing or in connection with any third party claims, or any claims made by any Person who may claim to be a creditor by way of exercise of rights under Applicable Laws or equity) any present or past, direct or indirect, permanent or temporary employees, contract worker and/or workmen of the Corporate Debtor, whether admitted or not, due or contingent, asserted or unasserted, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, present or future, whether or not set out in the Information Memorandum, the Virtual Data Room, the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate Debtor, in relation to any period up till the CIRP Commencement Date, will be written off in full and shall be deemed to be, permanently extinguished with effect from the Effective Date by virtue of the order of the NCLT approving this Resolution Plan. The Resolution Applicant or the Corporate Debtor shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto.
3.3.6 Treatment of Dues to Government and Statutory Authorities
(a)The Corporate Debtor will, out of the Fund Infusion, make payment of Government and Statutory Authority Payments in one or more tranches. It is clarified that the Government and Statutory Authorities Payment shall be made within such time as prescribed under the Code and the IBBI (CIRP) Regulations. Further, it is clarified that such Government and Statutory Authority Payments shall be paid to the Government and Statutory Authorities in priority to any payments being made to the Financial Creditors.
(b)The payment of Government and Statutory Authority Payments shall be, in full and final settlement of all Admitted Government and Statutory Authorities Claims of the Government and Statutory Authorities. Any charge created in favour of any Government or Statutory Authority (including under the Maharashtra Land Revenue Codes, 1966, Maharashtra Irrigation Act, 1976, Bombay Provincial Municipal Corporate Act, 1949) shall be immediately released upon payment of Government and Statutory Authority Payments. For abundant clarity, any and all dues (in the nature of Claims) payable to Government and Statutory Authorities, except as mentioned in sub-section 3.3.6(a) above, shall be treated as follows:
(i)all Claims or demands made by, or liabilities or obligations owed or payable to or assessed by, any Government and Statutory Authority, in relation to any dues, direct Taxes (including for any previous or current assessment year(s)), indirect Taxes, duties (including stamp duties), penalties, fees, interest, fines, levies, cesses, assessments or additions or any other charges or payments whatsoever on the Corporate Debtor or in relation to the Corporate Debtor, whether or not such Claims or demands are admitted, due or contingent, asserted or unasserted, crystallised or uncrystallised, assessed or unassessed, known or unknown, secured or unsecured, disputed or undisputed;
(ii)any financial liabilities in relation to any consent, permission, privilege, entitlement, exemption, benefit, license or approval granted to the Corporate Debtor, or in relation to the Corporate Debtor, whether or not such consent, permission, privilege, entitlement, exemption, benefit, license or approval is subsisting, lapsed or expired;
(iii)all financial liabilities (including without limitation, for any penalty, interest, fines or fees) and other liabilities and obligations which may have a financial impact on the Corporate Debtor, in relation to (i) any investigation, inquiry, show-cause, notices, causes of action, suits, claims, disputes, litigation, arbitration or other judicial or regulatory or administrative proceedings whether civil or criminal against, or in relation to, or in connection with the Corporate Debtor or the affairs of the Corporate Debtor, pending or threatened; (ii) any non-compliance of provisions of any laws, rules, regulations, directions, notifications, circulars, guidelines, policies, approvals, consents or permissions; (iii) cross subsidies availed by the Corporate Debtor; and (iv) any and all actual or potential rights and entitlements of the Central Government, the State Government, any regulatory or local authority or body or any agency or instrumentality thereof or any other party or entity (under any agreement, lease, license, approval, consent, permission or privilege) which may have a financial impact on the Corporate Debtor, whether admitted or not, due or contingent, asserted or unasserted, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, whether or not such claim, demand, liability is set out in the Information Memorandum, Virtual Data Room, the balance sheets or the profit and loss account statements of the Corporate Debtor, in relation to any period up till the Effective Date, will be written off in full and shall be, and be deemed to be, permanently extinguished by virtue of the order of the NCLT approving this Resolution Plan and the Resolution Applicant or the Corporate Debtor shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto.
3.3.7 Treatment of Dues to Other Operational Creditors
(a)The Corporate Debtor will, out of the Fund Infusion, make payment of Other Operational Creditor Payment in one or more tranches. It is clarified that the Other Operational Creditor Payment shall be made within such time as prescribed under the Code and the IBBI (CIRP) Regulations. Further, it is clarified that such Other Operational Creditor Payments shall be paid to the Other Operational Creditors in priority to any payments being made to the Financial Creditors.
(b)The distribution of the Other Operational Creditor Payments among the Other Operational Creditors shall be pro rata to the Admitted Other Operational Creditors Claims.
(c)The payment of Other Operational Creditor Payments shall be, in full and final settlement of all Admitted Other Operational Creditor Claims of the Other Operational Creditors. Post the payment of the Other Operational Creditor Payments, in accordance with subsection 3.3.7(a), any and all other rights and entitlements of any actual or potential Other Operational Creditors of the Corporate Debtor (including any person who may claim to be such a creditor by way of exercise of rights under Applicable Laws or equity), whether admitted or not, due or contingent, asserted or unasserted, crystallised or uncrystallised, known or unknown, disputed or undisputed, in relation to any period till the CIRP Commencement Date, shall be deemed to be permanently extinguished on the Effective Date. The Corporate Debtor or the Resolution Applicant shall at no point of time, directly or indirectly, have any obligation, liability or duty in relation thereto. All dues owed to Other Operational Creditors as against the Corporate Debtor or the Resolution Applicant, shall be deemed to be settled fully and finally on the Effective Date. Accordingly, no Other Operational Creditor shall bring, initiate or issue any notices, suits, claims, disputes, litigations, arbitrations or other judicial, regulatory or administrative proceedings against, the Corporate Debtor for recovery of, or in relation to, the Other Operational Creditor Debt.
3.3.8Following the payment, write-off, cancellation and extinguishment (as applicable) of the Admitted Operational Creditor Debt in accordance with this Resolution Plan, no amounts shall be payable to any Operational Creditors whether or not set out in the Information Memorandum, Virtual Data Room, balance sheets or the profit and loss account statements of the Corporate Debtor. Further, any and all rights and entitlements of any actual or potential Operational Creditors (including any person who may claim to be such a creditor by way of exercise of rights under Applicable Laws or equity) of the Corporate Debtor, whether such claims rights or entitlements (including any demand for any losses or damages, principal, interest, compound interest, penal interest, liquidated damages, and other charges already accrued/accruing or in connection with any third party claims) have been submitted to the Resolution Professional or not, whether admitted by the Resolution Professional or not, and whether or not set out in the Information Memorandum, the Virtual Data Room, the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate Debtor, being due or contingent, asserted or unasserted, crystallised or uncrystallised, known or unknown, disputed or undisputed, till the Effective Date shall be deemed to be permanently extinguished with effect from the NCLT Approval Date, by virtue of the order of the NCLT approving this Resolution Plan. The Resolution Applicant shall at no point of time, directly or indirectly, have any obligation, liability or duty in relation thereto. For the removal of doubt, it is clarified that any Claim (as determined and verified in accordance the Code) in respect of any debt that is in the nature of Operational Debt (as defined under Section 5 (21) of the Code), whether claimed or unclaimed, whether admitted or unadmitted, whether crystallized or uncrystallised, on the NCLT Approval Date shall be deemed to constitute Admitted Operational Creditor Debt for the purposes of this Resolution Plan, and shall be accorded such treatment as is proposed under this sub-section 3.3 (Treatment of Operational Creditors) of the Resolution Plan.
3.4 Treatment of Other Creditors
3.4.1Nil payment has been proposed under this Resolution Plan towards claims of Other Creditors, as no Other Creditor have filed claims. All dues payable to Other Creditors, including any and all Claims or demands in connection with or against the Corporate Debtor, and all liabilities or obligations of the Corporate Debtor (including any demand for any losses or damages or in connection with any third party claims or any investigations by any governmental bodies or authorities) by or to any Other Creditors (including any other actual or potential creditor, if any or any counter-party, including any Subsidiary, joint venture or associate) whether under law, equity or contract, whether admitted or not, due or contingent, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, present or future, whether or not such claims, demands, dues or liabilities are set out in the Information Memorandum, the Virtual Data Room, the balance sheets or the profit and loss account statements of the Corporate Debtor, in relation to any period till the Effective Date will be written off in full and shall be, and be deemed to be, permanently extinguished by virtue of the order of the NCLT approving this Resolution Plan, the Corporate Debtor or the Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto.
3.4.2Any and all Claims or demands in connection with or against the Corporate Debtor and all liabilities or obligations of the Corporate Debtor (including any demand for any losses or damages or in connection with any third party claims or any investigations by any governmental bodies or authorities) by or to any other stakeholder (including any other actual or potential creditor, if any or any counter-party, including any Subsidiary, joint venture or associate) whether under law, equity or contract, whether admitted or not, due or contingent, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, present or future, whether or not set out in the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate Debtor, and all inquiries, investigations or proceedings in relation to the foregoing, in relation to any period till the Effective Date and arising pursuant to this Resolution Plan or arising on account of this Resolution Plan, will be written off in full and shall be, and be deemed to be, permanently extinguished by virtue of the order of the NCLT approving this Resolution Plan and all the investigations, inquiries or show-cause, in relation to the foregoing shall be disposed of and the Corporate Debtor, or Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto.
The Resolution Applicant reserves the liberty to alter the inter se distribution of payments pursuant to this Resolution Plan, if required, with the consent of the COC.
3.5 Treatment of Existing Preference Shareholders
3.5.1It is clarified that the Existing Preference Shareholders of the Corporate Debtor shall in no event be treated as Financial Creditors of the Corporate Debtor whether or not: (a) any Claims may have been made by them in this regard; (b) such Claims may have been accepted or rejected by the Resolution Professional in this regard; and any reference to Financial Creditors in this Resolution Plan shall expressly exclude (by necessary implication) the Existing Preference Shareholders.
3.5.2Further the Existing Preference Shareholders will be subject to Capital Reduction as specified in Section 4 (Acquisition as a Going Concern) of this Resolution Plan.
3.6 Treatment of Security Interest and on-going Litigation
3.6.1Under this Resolution Plan:
(i)all Proceedings against, the Corporate Debtor or the affairs of the Corporate Debtor, in relation to any matter whatsoever, whether pending or threatened, present or future, (including without limitation, any investigation by any Government or Statutory Authority) that have been initiated (including for the avoidance of doubt all such pending proceedings listed in section 2(h) (Details of Material Litigations) of the Information Memorandum) or are threatened to be initiated against the Corporate Debtor (including those proceedings that relate to the Corporate Debtor) at any time till the Effective Date; and
(ii)any Encumbrance or collateral (whether enforced, crystallized or proceeded with or not) over the Assets (created and/or perfected for debt availed by the Corporate Debtor or a third party) (collectively "Security"), that exists by operation of Applicable Law, or in connection with any debt owed to Financial Creditors (to the extent such debt has not been acquired by the Resolution Applicant in accordance with the terms and conditions set out herein), Operational Creditors, Other Creditors or any other debt or obligation of the Corporate Debtor, or in relation to a third party (including a Related Party) whose obligations were secured by the Corporate Debtor by creation of any Security in favour of another person, at any time till the Effective Date, shall stand automatically abated, revoked, released, cancelled, withdrawn, dismissed and deemed null and void (as the case may be) and all financial obligations in relation to such Security or Dispute shall be permanently extinguished on the NCLT Approval Date, after payments being made in terms of this Resolution Plan. Further, any claim arising from any Dispute or Security, whether set out herein or not, whether admitted or not, due or contingent, asserted or unasserted, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, present or future, whether or not set out in the Information Memorandum, the Virtual Data Room, the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate Debtor, till the Effective Date or arising on account of this Resolution Plan, will be written off in full and shall be, and be deemed to be, permanently extinguished by virtue of the order of the NCLT approving this Resolution Plan and the Corporate Debtor or the Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto. All title deeds and other documents held by any Creditor or third party (as trustee or otherwise) in relation to such Security shall be immediately released in fit and proper condition to the Corporate Debtor. Any invocation or appropriation or other enforcement action already undertaken against the Corporate Debtor in respect of any Encumbrance, guarantee or collateral or any other debt or obligation of the Corporate Debtor, at the Effective Date shall stand automatically revoked and cancelled and withdrawn and deemed null and void and all liabilities and obligations in relation to such Encumbrance or collateral shall be deemed to have been permanently extinguished by the NCLT order approving this Resolution Plan and the Corporate Debtor or the Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto.
3.6.2Notwithstanding anything contained in sub-section 3.6.1 above, the Raheja Arbitration pending before the arbitral tribunal comprising of Justice Sujata Manohar (Presiding Arbitrator), Justice S.N. Variava (Co-Arbitrator) and Justice D.K. Deshmukh (Co-Arbitrator) shall continue unabated and nothing in this Resolution Plan shall have the effect of cancelling, withdrawing or dismissing such arbitration proceedings.
3.6.3To the extent that any Proceeding cannot be automatically abated, withdrawn, dismissed in terms of Applicable Law, it is clarified that the neither the Corporate Debtor nor the Resolution Applicant will be liable for any claims that may be adjudicated in such Proceedings as the transferee company under Section 25FF of the Industrial Disputes Act, 1947. It is clarified that the existing Promoters or Promoter Group, managers, Directors, officers, or Person in charge of the affairs and management of the Corporate Debtor (including any person who was an 'officer in default', 'principal employer', or 'occupier', other than the Resolution Professional, his Representatives and team) prior to the Effective Date shall continue to be responsible and liable for all the liabilities, claims, demand, obligations, penalties etc. arising out of any (i) proceedings, inquiries, investigations, orders, show causes, notices, suits, litigation etc. (including those arising out of any orders passed by the NCLT pursuant to Sections 43, 45, 49, 50, 66, 68, 70, 71, 72, 73, 74 of the Code) or any acts or omissions in breach of Applicable Law which occurred prior to the Effective Date; or (ii) that may arise out of any proceedings, inquiries, investigations, orders, show cause, notices, suits, litigation etc. (including any orders that may be passed by the NCLT pursuant to Sections 43, 45, 49, 50, 66, 68, 70, 71, 72, 73, 74 of the Code). Further, for the avoidance of doubt and without prejudice to the generality of the foregoing, it is expressly clarified that no liabilities, claims or obligations whatsoever arising out of or in relation to such proceedings, shall arise in respect of the Corporate Debtor or the Resolution Applicant who shall at no point of time, directly or indirectly, have any obligation, liability or duty in relation thereto. If any criminal proceedings initiated against the officers of the Corporate Debtor prior to the Effective Date cannot be disposed of by the NCLT under Applicable Law, the same shall continue against such officers. However, any liability accruing to the Corporate Debtor or the Resolution Applicant as a result of such criminal proceedings against the officers of the Corporate Debtor shall be deemed to have been permanently extinguished by the NCLT order approving the Resolution Plan.
3.7 Treatment of Deposits and Other Cash Collateral
3.7.1Except if covered under the treatment of Financial Creditors in this Resolution Plan, all margin money/ fixed deposit with lien (if any) provided by the Corporate Debtor or any Encumbrances of similar nature, or margin assurances, Encumbrances or liens that exist by operation of Applicable Law, along with any similar contractual comforts provided by the Corporate Debtor prior to the Effective Date, shall be released immediately on the Effective Date and shall revert to the Corporate Debtor. Further, any claim arising from any such deposit or collateral, whether set out herein or not, whether admitted or not, due or contingent, asserted or unasserted, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, whether or not set out in the Information Memorandum, the Virtual Data Room, the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate Debtor, till the Effective Date, will be written off in full and shall be, and be deemed to be, permanently extinguished by virtue of the order of the NCLT approving this Resolution Plan and the Corporate Debtor or the Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto. All title deeds and other documents held by any Creditor or third party (as trustee or otherwise) in relation to the same shall be immediately released in fit and proper condition to the Corporate Debtor on the Effective Date. Nothing contained in this sub-section 3.7.1 shall require the Financial Creditors to refund the amount of INR 25 crore adjusted by the Financial Creditors, prior to the CIRP Commencement Date, from out of the amounts received by the Corporate Debtor from Raheja Universal (Pvt.) Ltd. and maintained as fixed deposits by the Corporate Debtor with the Financial Creditors.
3.8 Interests of all Other Stakeholders
3.8.1The Corporate Debtor has been compulsorily delisted from the BSE Limited with effect from July 4, 2018 and from the National Stock Exchange of India Limited with effect from August 8, 2018. The Resolution Applicant does not in any manner undertake any obligation to make any payment to any shareholder of the Corporate Debtor, including to any public shareholder pursuant to the Securities and Exchange Board of India (Delisting of Equity Shares) Regulations, 2009. 3.8.2 In relation to any other actual or potential third parties (including Creditors or stakeholders) whose Claims have not been specifically covered in this Resolution Plan, no payment shall be due to them except as may be mandatorily required in accordance with the provisions of the Code within the timelines prescribed therein. Accordingly, Nil amount shall be payable to such remaining Creditors and stakeholders under this Resolution Plan.
3.8.3It is hereby clarified that the payment of Employees and Workmen Payments shall be, in full and final settlement of all Employees Claims and Workmen Claims. All employees and workmen shall be deemed to have relinquished any claim for any dues other than the Employees and Workmen Payment. In terms of Section 22 of the Maharashtra Rent Control Act, 1999 if the tenant ceases to be in service of the landlord either by retirement, resignation, termination of service, death or for any other reason, the tenant or any other person residing with him or claiming under him is required to vacate the premises occupied. Accordingly, at the NCLT Approval Date, and termination of services / retrenchment in terms of the Resolution Plan, the Employees, Workmen or any Person residing with or claiming through them (as applicable) shall be required to vacate the premises occupied by them on any property owned by the Corporate Debtor including any property that is the subject matter of the Raheja Arbitration without any further delay or demur and all the rights, title and interest of the Corporate Debtor in such properties shall continue to and be and deemed to be vested with the Corporate Debtor, free and clear of all Encumbrances upon occurrence of the NCLT Approval Date. The Resolution Applicant and the Corporate Debtor shall take such steps as may be required under the Applicable Laws to recover the vacant possession of the properties of the Corporate Debtor from any present or former Employee or Workmen of the Corporate Debtor or any Person claiming through them.
3.8.4Except as otherwise specified and without prejudice to any claims or counter-claims that may be made by the Corporate Debtor or the Resolution Applicant against any person (including the erstwhile Promoters of the Corporate Debtor), any and all claims or demands in connection with or against the Corporate Debtor and all liabilities or obligations of the Corporate Debtor (including any demand for any losses or damages or in connection with any third party claims or any investigations by any Government or Statutory Authority) by or to any other stakeholder (including any other actual or potential Creditor, if any or any counter-party, including any Subsidiary, joint venture or associate) whether under Applicable Law, equity or contract, whether admitted or not, due or contingent, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, whether or not set out in the Information Memorandum, the Virtual Data Room, the balance sheets or the profit and loss account statements of the Corporate Debtor, and all inquiries, investigations or proceedings in relation to the foregoing, till the Effective Date, will be written off in full and shall be, and be deemed to be, permanently extinguished by virtue of the order of the NCLT approving this Resolution Plan and all the investigations, inquiries or show-cause, in relation to the foregoing shall be disposed of and the Corporate Debtor or Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto.
3.8.5Except as otherwise specified, all claims, dues, liabilities, amounts, arrears, dividends or obligations owed or payable by, the Corporate Debtor, to the Promoters or any of their Subsidiaries, associates, joint ventures or affiliates, whether admitted or not, due or contingent, asserted or unasserted, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, whether or not set out in the Information Memorandum, Virtual Data Room, the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate Debtor, will be deemed to be written off in full and shall be, and be deemed to be, permanently extinguished by virtue of the order of the NCLT approving this Resolution Plan and the Corporate Debtor or the Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto.
3.9Payments to Creditors submitting claims after approval of the Resolution Plan/ persons whose claims were not accepted by the Resolution Professional
3.9.1Except otherwise agreed to by the Resolution Applicant, any unclaimed amounts which are not admitted or accepted shall stand extinguished and become Nil by virtue of the order of the NCLT approving this Resolution Plan. For the avoidance of doubt, it is clarified that even if any such Claims or amounts are admitted at a stage after the submission of this Resolution Plan for any reason whatsoever, then the same shall be paid at the sole discretion of the Resolution Applicant.
3.10 Benefits to Promoters and Related Parties of Promoters
3.10.1Any claim arising from any other contractual arrangements, whether set out herein or not, whether admitted or not, due or contingent, asserted or unasserted, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, whether or not set out in the Information Memorandum, the Virtual Data Room, the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate Debtor, till the Effective Date, shall except where specifically provided for in this Resolution Plan, be written off in full and will be deemed to be permanently extinguished on and with effect from the date of the order of the NCLT approving this Resolution Plan and Corporate Debtor or the Resolution Applicant shall not be, directly or indirectly, held responsible or liable in relation thereto.
3.10.2All contracts of employment or consultancy with, and any benefits, fees, commissions, perquisites or profits in lieu of or in addition to any salary or wages or any policy of providing such benefits, fees, commissions, perquisites or profits extended by the Corporate Debtor to, the Promoters or the Related Parties of the Promoters shall be deemed to be terminated and extinguished on and from CIRP Commencement Date, and the Corporate Debtor will not have any further obligation to provide the same. Unless expressly agreed to by the Corporate Debtor and the Resolution Applicant by way of a written consent after the NCLT Approval Date, all properties of the Corporate Debtor in the possession of the Promoters, the Related Parties of the Promoters or any other Person shall be immediately vacated, released and transferred in fit and proper condition to the Corporate Debtor.
3.11Statement as to how the Resolution Applicant will deal with the interest of all Stakeholders
3.11.1Part I (Financial Proposal) and Part II (Treatment of Stakeholders) of this Resolution Plan has dealt with the interests of all the stakeholders in the Corporate Debtor, including the Financial Creditors (whether secured or unsecured assenting or dissenting), Operational Creditors, Other Creditors and Employees and Workmen of the Corporate Debtor in accordance with Applicable Law.
3.12 Miscellaneous Claims
3.12.1Notwithstanding anything contained in this Resolution Plan, it is clarified that in addition to any mandatory payments required to be made in accordance with the Code, the Resolution Applicant will not be required to make any payments other than as specified in in Part I (Financial Proposal), of this Resolution Plan, for settlement of dues payable to any stakeholder, whether the claims of such Creditor have been admitted or not by the Resolution Professional.
3.12.2For the avoidance of doubt, once approved by the NCLT, this Resolution Plan is binding on the Corporate Debtor, members of the Corporate Debtors, Creditors, guarantors and other stakeholders involved in the Resolution Plan.
PART III - Transaction Structure
SECTION 4: ACQUISITION AS A GOING CONCERN
4.1The structure of the resolution proposed by the Resolution Applicant contemplates that on the Effective Date:
(i)The Resolution Applicant and/or its Affiliates or Nominees would subscribe to the equity shares of the Corporate Debtor by way of Upfront Equity Infusion;
(ii)The Resolution Applicant shall infuse an amount equal to the Fund Infusion in the Corporate Debtor and the amount will be used to make payment of the CIRP Costs, Employees and Workmen Payments (including payment of Outstanding Contributions and Termination Benefits), as applicable, Government and Statutory Authority Payments and Other Operational Creditor Payments and full and final settlement of all Claims which have not been admitted. This infusion shall be by way of equity, quasi equity, and / or shareholder debt or a combination thereof;
(iii)Acquisition of the Admitted Financial Creditor Debt by the Resolution Applicant by payment of the Financial Creditor Payments to the Financial Creditors; and
(iv)the pre-CIRP shareholding including the preference share capital of the Corporate Debtor on the CIRP Commencement Date shall be subjected to Capital Reduction. Post Capital Reduction, the Resolution Applicant and / or its Affiliates or Nominee shall hold 100% (one hundred per cent) of the share capital of the Corporate Debtor.
The details of the Acquisition are provided below.
4.2On the date identified in the Implementation Notice, which shall be 30 days from the date of satisfaction of the Condition Precedent (which is the date of receipt of a copy of the order of the NCLT sanctioning this Resolution Plan in accordance with the terms hereof), provided that no appeal is pending before any Appellate Authority challenging this Resolution Plan on or before the Effective Date, or such earlier as date may be notified in writing to the erstwhile COC by the Resolution Applicant ("Effective Date"), the Resolution Applicant shall complete the implementation of the Resolution Plan and the Resolution Applicant and/or Affiliates or Nominees shall subscribe to equity shares of the Corporate Debtor such that they will hold 100% (one hundred percent) of the share capital of the Corporate Debtor, following the Capital Reduction (as set out below), and acquire control of the Corporate Debtor. The detailed steps involved in the Acquisition and implementation of the Resolution Plan are as follows, which shall be deemed to have occurred simultaneously on the Effective Date:
(i)If required, the authorised share capital of the Corporate Debtor shall stand increased by such amount as may be required for the issuance of securities to the Resolution Applicant and/ or its Affiliates pursuant to this Resolution Plan, and the Articles of Association and/or Memorandum of Association of the Corporate Debtor shall stand altered as may be required for such increase in authorised share capital;
(ii)Requisite amendments shall be made to the Memorandum of Association, Articles of Association in relation to the transactions contemplated herein or for the implementation of the Business Plan (if required) subject to compliance with Applicable Law;
(iii)The Resolution Applicant and/or its Affiliates or Nominee shall subscribe to, and the Corporate Debtor shall issue equity shares for Upfront Equity Infusion;
(iv)The existing pre-CIRP shareholding (including equity shares, the preference share capital of the Corporate Debtor on the CIRP Commencement Date) of the Promoters / Promoter Group and all other existing shareholders in the Corporate Debtor (except the equity shares allotted to the Resolution Applicant pursuant to any infusion of funds into the Corporate Debtor) shall stand cancelled without any further act or deed immediately following the issuance of equity shares by the Corporate Debtor to the Resolution Applicant, pursuant to this Resolution Plan;
(v)The reduction of the entire share capital ("Capital Reduction") of the Corporate Debtor shall be effected as an integral part of this Resolution Plan by the NCLT order without any further act, deed or instrument. Implementation of the Resolution Plan in terms of the NCLT order shall be deemed to be due compliance of all provisions of Applicable Law in this regard, and there shall be no requirement to add "and reduced" in the name of the Corporate Debtor. Further, the Capital Reduction would not involve either a diminution of liability in respect of unpaid share capital, if any, or payment to any shareholder of any unpaid share capital. The Corporate Debtor is undergoing CIRP; therefore, the existing value of the share capital of the Corporate Debtor is NIL.
(vi)Pursuant to the above, the Resolution Applicant (along with its Affiliates / Nominees) shall hold 100% (one hundred per cent) of the share capital of the Corporate Debtor and acquire control of the Corporate Debtor.
(vii)Upon acquiring control of the Corporate Debtor, the Resolution Applicant shall acquire the entire Admitted Financial Creditor Debt from the Financial Creditors by payment of Financial Creditor Payments in accordance with section 3.2 (Treatment of Financial Creditors) of this Resolution Plan, on the same terms and conditions (including any contractual comforts, security and guarantees) as that of the Admitted Financial Creditor Debt.
All actions set out in Section 4.2 (Acquisition as a going concern) above, shall be deemed to have taken effect simultaneously and the Effective Date shall not occur unless all such actions are consummated.
4.3For the avoidance of doubt, and subject to Clause 4.6, it is clarified that filings to be made with the jurisdictional ROC in relation to the transactions under this Resolution Plan, as required, shall be completed after the Effective Date, in accordance with the time limits prescribed under Applicable Law.
4.4For the purposes of and in connection with the transactions contemplated under this Resolution Plan:
(i)The order of the NCLT approving this Resolution Plan pursuant to the Code shall be deemed to be adequate compliance with all relevant provisions of any Applicable Law that would otherwise have required compliance in relation to the steps that comprise any part of the Resolution Plan, unless such deemed compliance is inconsistent with such other Applicable Law,
(ii)Subject to the satisfaction of the Condition Precedent, the steps set out above shall be deemed, without any further act by any person, to take effect as mentioned below and as an integral part of the Resolution Plan on the Implementation Notice.
4.5Given the nature of the Code as a complete code providing single window clearance upon the receipt of certified copy of the order of the NCLT approving this Resolution Plan, or a copy of the order of the NCLT approving this Resolution Plan from the NCLT website, and in light of the General Circular No. IBC/01/2017 issued by the Ministry of Corporate Affairs of the Government of India and the explanation provided to Section 30(2)(e) of the Code, clarifying that there is no requirement for obtaining approval of the shareholders/members of the corporate debtor during the CIRP, the relevant transactions forming part of this Resolution Plan as approved by the NCLT shall be given effect to on the Effective Date without any further act or deed. Subject to the above, the Corporate Debtor and the Resolution Applicant, as applicable, shall take appropriate corporate actions necessary for implementation of all the provisions of this Resolution Plan, including: (i) filing of appropriate documents or forms with relevant regulatory authorities, (ii) issuance of shares and instruments as provided in the Resolution Plan, and (iii) regular compliance as per the Applicable Law.
4.6To the extent any secretarial filings, corporate actions and/or any other actions, filings, intimations, etc. are required to be made in connection with any step set forth above before the Effective Date, the Reconstituted Board, shall be deemed to be fully authorized to act on behalf of the Corporate Debtor and to undertake all such actions.
4.7Post the Admitted Financial Creditor Debt Acquisition, the Resolution Applicant may restructure such Admitted Financial Creditor Debt on terms as may be mutually agreed with the Corporate Debtor having regard to all Tax, and other relevant considerations.
4.8Notwithstanding anything, as set out in this Section 4 (Acquisition as going concern) of the Resolution Plan, the Resolution Applicant reserves the right to propose any alternative structure for the insolvency resolution of the Corporate Debtor, with the same commercial terms as proposed in Section 3 of Part II (Treatment of Stakeholders) of the Resolution Plan and in a form and manner as may be mutually agreed between the Resolution Applicant and the COC.
4.9On the Effective Date, the existing suspended Board of the Corporate Debtor shall be dissolved and all directors of the existing Board shall be deemed to have resigned without any further act or deed from any other person, and the Resolution Applicant shall reconstitute the Board of the Corporate Debtor on such date in accordance with Applicable Law.
4.10There shall be, with effect from the Effective Date, discontinuation of services / retrenchment of all Workmen / Employees in terms of Section 25FF of the Industrial Disputes Act, 1947.
Section 5: CONDUCT BETWEEN NCLT APPROVAL DATE AND EFFECTIVE DATE
4.11During the period between the NCLT Approval Date and the Effective Date, by virtue of the order of the NCLT approving this Resolution Plan, the Corporate Debtor shall be managed by the Implementation and Monitoring Committee. The Implementation and Monitoring Committee shall take all such measures to preserve and protect the Assets of the Corporate Debtor from the NCLT Approval Date till the Effective Date. Without prejudice to the above, and except as set out in this Resolution Plan or as expressly agreed to by the Resolution Applicant in writing, the Implementation and Monitoring Committee, the Corporate Debtor and all other stakeholders in this CIRP, jointly or severally, shall not directly or indirectly:
(i)amend, terminate, cancel or release any contracts or other arrangements relating to the Corporate Debtor, otherwise than in the Ordinary Course of Business;
(ii)transfer or create an Encumbrance on any of the Assets, or investments, of the Corporate Debtor;
(iii)take any action that authorizes, creates or issues any shares or changes or modifies the capital structure of the Corporate Debtor;
(iv)write down or write up the value of, or revalue any Assets of the Corporate Debtor, except as provided in the Resolution Plan;
(v)grant to any third party, any rights, privileges or licenses over any Assets or rights in relation to the Corporate Debtor which would adversely affect the ability of the Resolution Applicant to receive the benefits of such Assets or rights under the Resolution Plan;
(vi)initiate or settle any litigations in relation to the Assets, or make any submissions under any pending dispute or litigation undertaking any additional obligations pertaining to the Assets;
(vii)take any action or enter into any transactions that could be expected to result in a change in the scope, nature or activities of the Corporate Debtor, otherwise than in the Ordinary Course of Business;
(viii)acquire shares in or invest in any other Person, whether through subscription or purchase or otherwise in relation to Corporate Debtor; (ii) create partnerships, Subsidiaries or joint ventures in relation to the Corporate Debtor; (iii) make business arrangements in the nature of revenue sharing, profit sharing or Assets sharing in relation to the Corporate Debtor; or (iv) make modifications to, termination of arrangements (falling within the aforementioned categories) existing as on the date of this Resolution Plan or subsequently effected, involving or exceeding INR 50,00,000 (Indian Rupees Fifty Lakhs) in relation to Corporate Debtor; avail of any borrowing, or create or agree to create any financial indebtedness with respect to the Corporate Debtor in excess of INR 50,00,000 (Indian Rupees Fifty Lakhs) in aggregate;
(ix)save and except for amounts specifically required to be repaid, set-off, redeemed, prepaid or reimbursed under the Resolution Plan (including the CIRP Costs), repay any loans, advances or any other amounts that may be required to be repaid, set-off, redeemed, prepaid or reimbursed;
(x)enter into or modify the terms of existing contracts (including schemes or collective bargaining agreements) with any trade/ labour/ employee unions, or recognize any new trade/ labour/ employee unions, in relation to the Corporate Debtor;
(xi)enter into any contract, transaction or assignment of the intellectual property pertaining to the Corporate Debtor other than in the Ordinary Course of Business or modifying or terminating any existing contracts in relation to the same;
(xii)enter into (i) contracts or arrangements which can reasonably be determined to be loss-making over the planned term of such contract; (ii) contracts or arrangements with unusual or onerous terms; or (iii) contracts or arrangements which are not on arms-length basis provided however that, nothing contained in this paragraph shall be deemed to apply to execution of contracts or entering into arrangements with customers in the Ordinary Course of Business, with respect to the Corporate Debtor;
(xiii)approve or incur any capital expenditure or commitment in relation to the Corporate Debtor without the prior written consent of the Resolution Applicant;
(xiv)incur, issue, assume, extend, or guarantee any new or additional obligations with respect to the Corporate Debtor except in the Ordinary Course of Business of the Corporate Debtor;
(xv)settle any legal proceedings;
(xvi)amend the charter documents of the Corporate Debtor except as specified in this Resolution Plan;
(xvii)amend the charter documents of any other entity which adversely affects the transactions contemplated under this Resolution Plan;
(xviii)in relation to the Corporate Debtor, pay, discharge or satisfy any material claim, liability or obligation other than in the Ordinary Course of Business;
(xix)shift the registered office or any branch office of the Corporate Debtor outside the state in India, in which such office is currently located;
(xx)merge, restructure, consolidate, amalgamate, liquidate, wind up or dissolve the Corporate Debtor, or commence any proceedings in relation to any of the foregoing;
(xxi)take any action or enter into any transactions which results in or which could be expected to result in a Material Adverse Change; or
(xxii)enter into any agreement in relation to the foregoing.
4.12Any monetary limits, unless specified otherwise, are indicated on an aggregate basis, and such limits shall apply to both a single transaction and a series of transactions carried out.
4.13Further, the Implementation and Monitoring Committee, shall during the period between the NCLT Approval Date and the Effective Date:
(i)promptly notify the Resolution Applicant, in writing, of any events that may impact the Business and/or affairs of the Corporate Debtor;
(ii)upon prior written notice of a reasonable period, provide the Resolution Applicant and its representatives, advisers and agents with reasonable access to personnel, Assets, books and records of the Corporate Debtor, in accordance with Applicable Law;
(iii)appoint, and determine the terms of employment of any employees and workmen that the Corporate Debtor may require to hire in order to maintain its status as a going concern;
(iv)ensure the safe-keep of the records and Assets relating to the Corporate Debtor;
(v)provide the Resolution Applicant and its agents and advisors with such information and access as may be reasonably requested for the purpose of completing its due diligence on the Corporate Debtor and implementing the Resolution Plan;
(vi)continue to carry on the operations of the Corporate Debtor in the Ordinary Course of Business; and
(vii)The Implementation and Monitoring Committee shall ensure that any information provided to the Resolution Applicant pursuant to this sub-section 5.3 (Conduct between NCLT Approval Date and Effective Date), shall be in compliance with Applicable Law.
4.14The Corporate Debtor, the Implementation and Monitoring Committee and any other stakeholder in the CIRP of the Corporate Debtor will extend all cooperation to the Resolution Applicant, and perform all such actions, as may be required by the Resolution Applicant to implement and consummate the transactions contemplated under the Resolution Plan and not take any actions or perform such acts and deeds which could adversely impact the abilities of any person to consummate any of the matters set out in this Resolution Plan or the transactions contemplated under this Resolution Plan. Without limitation to the generality of the foregoing, each of the Corporate Debtor, Implementation and Monitoring Committee and the Resolution Applicant shall:
(i)cooperate and consult with the other parties, and promptly prepare and file all applications and documents relating to the transactions contemplated in the Resolution Plan (and in relation to the Corporate Debtor, as may be required by the Resolution Applicant in writing);; and
(ii)do all such further things, execute and deliver all such additional documents including ensuring timely and full compliance with all Applicable Laws for effective and timely completion of the transactions contemplated in the Resolution Plan.
PART IV - Business Plan
Note: The Business Plan proposed by the Resolution Applicant has been attached hereto as Schedule 1.
PART V - Reliefs and Waivers
SECTION 5 : RELIEFS AND WAIVERS
5.1Any reliefs requested to be granted by the NCLT to the Resolution Applicant shall not be construed as conditionalities to the implementation of this Resolution Plan. The Resolution Applicant submits that, at the time of seeking approval from the NCLT, the reliefs provided below shall be included, with such modifications as may be considered necessary by the NCLT:
(i)Given that the Resolution Applicant will acquire control of the affairs of the Corporate Debtor on the Effective Date, all Government and Statutory Authorities (as they are Operational Creditors) to waive any financial penalties, or any other financial liabilities and dues that may arise from any defaults or non-compliances by the Corporate Debtor prior to the Effective Date of Applicable Laws, including but not limited to the provisions of the Companies Act, 2013, Electricity Act 2003, Contract Labour (Regulation and Abolition) Act, 1970, all relevant and applicable labour laws, all relevant and applicable Direct and Indirect tax laws, the relevant stamp acts of the different States of India, relevant environmental laws and any other government instrumentality.
(ii)The change in shareholding of the Corporate Debtor pursuant to the Resolution Plan shall not lead to lapse of any brought forward losses of the Corporate Debtor and provisions of Section 79 of the Income Tax Act, 1961 are not applicable.
(iii)As the Resolution Applicant is required to takeover the Corporate Debtor's Business on a 'going concern' basis, all consents, licenses, approvals, clearances, rights, entitlements, benefits and privileges whether under law, contract, lease or license, granted in favour of the Corporate Debtor or to which the Corporate Debtor is entitled or accustomed to, shall continue to remain valid, notwithstanding any provision to the contrary in their terms, and provided that in case of consents, licenses, approvals, rights, entitlements, benefits and privileges that have expired or lapsed, notwithstanding that they may have already lapsed or expired due to any breach, non-compliance or efflux of time, be deemed to continue without disruption for the benefit of the Corporate Debtor, for a period of 12 (twelve) months from the Effective Date or such other period as required under Applicable Law.
(iv)Credit in respect of minimum alternate tax paid by the Corporate Debtor shall continue with the Corporate Debtor on a going concern basis and shall be available for the benefit of the Resolution Applicant or the Corporate Debtor, as the case may be.
(v)The Corporate Debtor or the Resolution Applicant shall not, at any point of time, be held financially liable under the provisions in relation to the liability of the Corporate Debtor as per Section 170 of the Income Tax Act, 1961 in respect of any transaction carried out before the Effective Date or contemplated under the Resolution Plan or on account of any action taken pursuant to this Resolution Plan including acquisition of control by the Resolution Applicant over the Corporate Debtor pursuant to this Resolution Plan.
(vi)In the interest of keeping the Corporate Debtor a going concern, unless otherwise specified in this Resolution Plan, all contracts and agreements shall continue to remain valid and notwithstanding any lapse, non-compliance, breach or expiry of underlying terms of such contracts and agreements, these contracts and agreements shall be deemed to continue without disruption for the benefit of the Corporate Debtor for their original tenure.
(vii)All contractual arrangements (except for any contracts that vest property rights in the Corporate Debtor) entered into by the Corporate Debtor with the Related Party of the Corporate Debtor, including (including any contracts of employment or consultancy with, and any benefits, fees, commissions, perquisites or profits in lieu of or in addition to any salary or wages or any policy of providing such benefits, fees, commissions, perquisites or profits extended by the Corporate Debtor) shall be deemed to be terminated on and from the NCLT Approval Date. Any claims or financial liabilities arising as a consequence of any termination of such contracts till the NCLT Approval Date shall be cancelled and written-off on the NCLT Approval Date, and shall be permanently extinguished and written-off on the NCLT Approval Date.
(viii)The Resolution Applicant, or the Corporate Debtor shall not be liable to pay any Taxes (direct or indirect) whatsoever arising (directly or indirectly on such entity) as a result of the actions taken by the Corporate Debtor prior to the Effective Date or arising from the actions under this Resolution Plan. It may also be clarified that any Tax liabilities pertaining to any period or action prior to the Effective Date, whether assessed or unassessed, by the relevant Government and Statutory Authority shall be deemed to have been extinguished and written-off on the NCLT Approval Date.
(ix)All financial liabilities (including any contingent claims) relating to any investigations, inquiries, show-cause notices, causes of actions, suits, claims, disputes, litigations, arbitrations or other judicial or regulatory or administrative proceedings shall be deemed to be extinguished and written-off.
(x)Any and all other claims, rights and entitlements of any Person, including any actual or potential Creditors of the Corporate Debtor (including but not limited to all Financial Creditors, Operational Creditors, Other Creditors, and Government and Statutory Authorities and any person who may claim to be a creditor by way of exercise of rights under Applicable Laws or equity), whether or not such claims rights or entitlements (including any demand for any losses or damages, principal, interest, compound interest, penal interest, liquidated damages, and other charges already accrued/accruing or in connection with any third party claims) have been filed before the Resolution Professional or not, whether admitted by the Resolution Professional or not, whether or not set out in the Information Memorandum, the Virtual Data Room, the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate Debtor, being due or contingent, asserted or unasserted, crystallised or uncrystallised, known or unknown, disputed or undisputed, in relation to any period prior to the Effective Date, shall be deemed to be written-off and permanently extinguished with effect from the Effective Date. The Corporate Debtor or the Resolution Applicant shall at no point of time, directly or indirectly, have any obligation, liability or duty in relation thereto.
(xi)Extinguishment and write-off of any financial liabilities against the Corporate Debtor or the Resolution Applicant, including as result of the termination of any agreements by the Corporate Debtor.
(xii)Extinguishment and write-off of all financial liabilities (including past liabilities) against the Corporate Debtor or the Resolution Applicant that may accrue due to non-compliance with any clearance issued by any Government and Statutory Authority.
(xiii)Extinguishment of any other liability, investigations, inquiry pending against the Corporate Debtor due to non-compliance with any environmental clearance issued by any Government and Statutory Authority.
(xiv)The Corporate Debtor shall be entitled to carry forward and set off all the accumulated Tax losses and unabsorbed depreciation of the Corporate Debtor in accordance with the returns of income filed under the Income-tax Act, 1961;
(xv)The Corporate Debtor shall be entitled to carry forward and set off all the brought forward book losses and unabsorbed depreciation as shown in the books of account and considered in the returns filed under the Income-tax Act, 1961;
(xvi)All Disputes to be initiated against the Corporate Debtor (including those proceedings that relate to the Corporate Debtor) at any time till the Effective Date shall stand automatically abated, revoked, released, cancelled, withdrawn, dismissed and deemed null and void (as the case may be) and all financial obligations in relation to such Dispute shall be permanently extinguished on the NCLT Approval Date, after payments being made to any such Creditors if mandatorily required in accordance with the provisions of the Code.
(xvii)All benefits and incentives, including but not limited to, under all such incentive schemes, subsidy schemes and policies that the Corporate Debtor is entitled under, and all such benefits shall remain vested in the Corporate Debtor with effect from the Effective Date;
(xviii)On and from the NCLT Approval Date, by order of the NCLT sanctioning this Resolution Plan, a restraint on, and prohibition of, all Adverse Actions shall be deemed to be declared until the Effective Date;
(xix)For such further or other relief/s be granted and/or directions be given as the NCLT may deem fit and proper in the facts and circumstances of the case and in the interests of resolution of the insolvency of the Corporate Debtor.
PART VI - Management and Control of Corporate Debtor
SECTION 6 : MANAGEMENT AND CONTROL OF THE CORPORATE DEBTOR
6.1From the NCLT Approval Date and till the occurrence of the Effective Date, the Corporate Debtor shall be managed by the Implementation and Monitoring Committee in accordance with the terms and conditions set out herein. 6.2 Implementation and Monitoring Committee
Starting from the NCLT Approval Date till the Effective Date, the Implementation and the Monitoring Committee shall be constituted and shall comprise of one nominee of the Resolution Applicant, the Insolvency Professional and one nominee of the Approving Financial Creditors. No financial liability shall arise on the Approving Financial Creditors on account of their nominee member of the Implementation and the Monitoring Committee.
The terms of appointment of the members of the Implementation and Monitoring Committee, and details of the functioning of the Implementation and Monitoring Committee will be finalized by the COC and the Resolution Applicant jointly and any related costs relating to such appointments, and terms thereof, shall be borne by the Corporate Debtor.
6.3 Formation of the Reconstituted Board
The newly appointed Implementation and Monitoring Committee shall be responsible for the supervision of the day to day affairs of the Corporate Debtor till the Effective Date. On the NCLT Approval Date, all the existing Directors of the Corporate Debtor, without any further action being required on the part of any Person, shall, unless otherwise required by the NCLT or agreed to by the Resolution Applicant in writing, be deemed to have resigned from the Board of the Corporate Debtor, and the Board of the Corporate Debtor will be reconstituted to comprise of the members of the Implementation and Monitoring Committee ("Reconstituted Board"). After the Effective Date, the Resolution Applicant shall constitute the Board of the Corporate Debtor and appoint key managerial personnel.
6.4 Function of the Reconstituted Board
After approval of the Resolution Plan by the NCLT, till the Effective Date, the Implementation and Monitoring Committee shall oversee the management of the affairs of the Corporate Debtor (along with the Reconstituted Board). The Implementation and Monitoring Committee and the Reconstituted Board shall comply with the provisions of the Resolution Plan and shall not take or omit to take any actions which could impact the successful implementation of this Resolution Plan. Further, the Resolution Applicant may appoint an independent observer to the Reconstituted Board in accordance with Applicable Laws from the NCLT Approval Date till the Effective Date.
6.5Appointment of CEO, COO and CFO On the NCLT Approval Date, the Resolution Applicant, by way of a prior written notice to the Implementation and Monitoring Committee and the Reconstituted Board, will be entitled to require the appointment of persons identified by them ("Required Appointments") as key managerial personnel of the Corporate Debtor (including the Chief Executive Officer, the Chief Operating Officer and the Chief Financial Officer). The Corporate Debtor (including the relevant stakeholders), the Reconstituted Board and the Implementation and Monitoring Committee shall take all steps necessary to ensure that Required Appointments are effectuated promptly upon receipt of the written notice from the Resolution Applicant. The Required Appointments shall be made pursuant to and under this Resolution Plan, and the same shall be deemed to be in compliance with all Applicable Laws, and no further approvals, acts, deeds or instruments shall be required for this purpose.
SECTION 7: SUPERVISION AND IMPLEMENTATION OF THE RESOLUTION PLAN
7.1The Implementation and Monitoring Committee, along with the Reconstituted Board, shall have the responsibility of management of the Corporate Debtor and implementation and supervision of the Resolution Plan till the Effective Date. The Implementation and Monitoring Committee will also supervise the functioning of the Reconstituted Board.
7.2The terms of functioning of the Implementation and Monitoring Committee shall be finalised by the COC and the Resolution Applicant jointly. All decisions taken by the Implementation and Monitoring Committee shall be by way of a majority vote of the members of the Implementation and Monitoring Committee. 7.3 The implementation of the Resolution Plan shall be carried out by the Implementation and Monitoring Committee and Reconstituted Board, till the Effective Date. The responsibilities of the Implementation and Monitoring Committee shall include the following:
(i)To ensure implementation of the Resolution Plan as approved by the NCLT, by the Reconstituted Board of the Corporate Debtor;
(ii)Make or cause to be made, on behalf of the Corporate Debtor, all applications for regulatory and third party approvals required for implementation and consummation of the transactions contemplated in the Resolution Plan in a form and manner agreed with the Resolution Applicant;
(iii)Appoint and determine the terms of employment of any employees and workmen that the Corporate Debtor may require to hire in order to maintain its status as a going concern;
(iv)Undertake those tasks which are required to maintain the Corporate Debtor as a going concern in the interim period;
(v)Contest past litigations which may be revived on the expiry of the moratorium period on the NCLT Approval date, and any fresh litigations which may be filed against the Corporate Debtor by any person. It is clarified that the neither the Corporate Debtor nor the Resolution Applicant will be liable for any claims that may be adjudicated in such Proceedings as the transferee company under Section 25FF of the Industrial Disputes Act, 1947;
(vi)Contest the litigations challenging the Resolution Plan on matter of fact or law;
(vii)To provide regular updates to the consortium formed by the lenders, if any, and the Resolution Applicant;
(viii)To issue notices, and correspond with contractual counterparties (including any lessees and sub-lessees) as may be necessary;
(ix)To provide updates to the IBBI as and when required;
(x)To ensure utilization of Corporate Debtor's funds and payment of dues in accordance with the terms of this Resolution Plan, and supervision of the withdrawals of funds from the bank accounts of the Corporate Debtor;
(xi)Use of any legal counsel for legal advice that it may need in relation to this Resolution Plan or the transactions contemplated herein;
(xii)At all times, be empowered to do all such reasonable acts, deeds or things and exercise all rights and privileges and perform all duties, which now or hereafter, may be requested by the Resolution Applicant in order to accomplish the purpose of the Resolution Plan;
(xiii)Intimate the NCLT of the progress being made on the implementation of the Resolution Plan on a monthly basis or on such intervals as may be directed by the NCLT.
7.4In addition to the above, the Implementation and Monitoring Committee shall be deemed to have the same rights, powers, privileges and protections which the COC and the Resolution Professional have during the CIRP, to the extent applicable. The Implementation and Monitoring Committee shall also be deemed to have the same responsibility as the COC and Resolution Professional have during the CIRP to preserve the value of the Business of the Corporate Debtor. An authorized signatory of the Corporate Debtor under directions of the Implementation and Monitoring Committee, will sign all applications on behalf of the Corporate Debtor that are proposed to be made to any regulatory authority in order to obtain the necessary approvals for implementation of this Resolution Plan within the timelines set out herein. Further, on and from the NCLT Approval Date till the Effective Date, all cashflows of the Corporate Debtor shall be managed by the Implementation and Monitoring Committee, which shall identify and nominate person(s), who shall be authorized by the Reconstituted Board as the signatory(s) of the Corporate Debtor to manage and operate all banks accounts of the Corporate Debtor. The nominee of the Resolution Applicant, once appointed, shall be authorized as the sole signatory at the option of the Resolution Applicant.
7.5 Control Over Corporate Debtor
Notwithstanding the provisions of this Section 8 (Supervision and Implementation of the Resolution Plan), pursuant to this Resolution Plan and by virtue of the NCLT order approving the Resolution Plan, on and from the Effective Date, the Resolution Applicant shall be entitled to exercise sole and absolute control over the affairs of the Corporate Debtor in accordance with Applicable Law on the basis of the shares proposed to be held by the Resolution Applicant in the Corporate Debtor, and the exercise of control may involve changes to the management and executives of the Corporate Debtor as the Resolution Applicant deems fit in its sole discretion. The Implementation and Monitoring Committee and the Reconstituted Board shall keep the Resolution Applicant fully informed and cooperate with the Resolution Applicant to enable the Resolution Applicant to exercise control over the affairs of the Corporate Debtor during the period between the NCLT Approval Date and the Effective Date.
7.6 Support from the Resolution Applicant prior to Effective Date
Post the CoC Approval Date and prior to the Effective Date, the Resolution Applicant at its discretion, would like to undertake the steps necessary and extend cooperation to the Resolution Professional / Implementation and Monitoring Committee for the expeditious resolution of issues faced by the Corporate Debtor. This would be subject to the approval of the CoC / Reconstituted Board as applicable.
PART VII - Timeline of Implementation of Resolution Plan
SECTION 8: REGULATORY APPROVALS AND IMPLEMENTATION OF THE RESOLUTION PLAN
8.1The regulatory approval required for implementation of the Resolution Plan is the NCLT Approval. 8.2 Indicative Timeline of Events for Implementation of Proposed Resolution Plan 8.2.1 Implementation of the Resolution Plan shall commence from the NCLT Approval Date and upon the satisfaction of the Condition Precedent, and the Resolution Applicant shall promptly issue a notice ("Implementation Notice") to the erstwhile COC in writing confirming the date in terms of sub-section 4.2 hereof on which it proposes to complete the steps set out in Part III (Transaction Structure) of this Resolution Plan in accordance Section 4.2 of this Resolution Plan. 8.2.2 The consummation and completion of the Resolution Plan is contingent on receipt of certified copy of the order of the NCLT sanctioning this Resolution Plan in accordance with the terms hereof ("Condition Precedent"). 8.2.3 An order of the NCLT approving this Resolution Plan ("NCLT Approval") pursuant to the Code shall be deemed to be adequate compliance with all relevant provisions of any applicable law that would otherwise have become applicable in relation to the steps that comprise any part of the Resolution Plan. Further, Section 238 of the Code stipulates that to the extent of any inconsistency between the provisions of the Code and other laws, the former shall prevail, which is affirmed by the ruling of the Hon'ble Supreme Court of India in the matter of Innoventive Industries Limited v. ICICI Bank Limited [AIR 2017 SC 4084], which has held that the Code is a complete code in itself. Accordingly, the NCLT Approval sanctioning this Resolution Plan will be final and binding on all stakeholders and third parties, and will not require compliance with procedural requirements under other laws (including but not limited to those under Companies Act, State legislations and SEBI regulations) and contracts.
For the avoidance of doubt, it is clarified that if the Condition Precedent is not completed in accordance with this Resolution Plan, any performance deposit provided on behalf of the Resolution Applicant shall not be liable to be invoked nor the Bank Guarantee/ Earnest Money Deposit be forfeited, and no other action shall be taken against the Resolution Applicant or its affiliates, except in accordance with the terms of the RFRP. 8.4 The Resolution Applicant further undertakes and confirms that, on and from the approval of this Resolution Plan by the COC, and subject only to (i) the satisfaction by the Resolution Applicant of the Condition Precedent in accordance with Applicable Law, and (ii) applicable directions (if any) of the Hon'ble NCLT, NCLAT or the Supreme Court of India, or any other judicial, quasi-judicial, regulatory or administrative entity, department or authority, all obligations and commitments, financial or otherwise, undertaken by it under this Resolution Plan towards the Financial Creditors, and any other stakeholders, shall be binding on it, and shall subsist and be in full force and effect irrespective of whether any reliefs, waivers or concessions sought by the Resolution Applicant are granted by the Hon'ble NCLT, NCLAT, the Supreme Court of India, or any other judicial, quasi-judicial, regulatory or administrative entity, department or authority.
8.5Subject to the above, provided below is an indicative timeline of events for implementation of the Resolution Plan:
INDICATIVE ACTIVITY SCHEDULE Sr. No. Activity Indicative Timeline (days) I - Approval Process 1. Presentation of Resolution Plan to the COC. To be completed prior to NCLT approval of the resolution plan 2. Approval of Resolution Plan by COC. 3. Application to the NCLT for approval of the Resolution Plan. 4. Approval of Resolution Plan by the NCLT on NCLT Approval Date (such date, "T"). T 5. Writing off certain dues of the Corporate Debtor in accordance with the Resolution Plan and Code, as on the NCLT Approval Date, as set out in Section 3 (Treatment of Stakeholders) of Part II (Financial Proposal) of this Resolution Plan. 6. Formation and appointment of the Implementation and Monitoring Committee and reconstitution of Board. 7. Intimation to all Financial Creditors and Operational Creditors, existing shareholders and other stakeholders. T+1 II - Interim Period 8. Completion of the Condition Precedent and Issue of Implementation Notice. T
INDICATIVE ACTIVITY SCHEDULE Sr. No. Activity Indicative Timeline (days) III – Infusion of Funds and Acquisition Actions 9. Upfront Equity Infusion into the Corporate Debtor along with Capital Reduction (i.e., for the acquisition of control of the Corporate Debtor by the Resolution Applicant). T+ 30 IV – Settlement of Creditors and Mandatory Payments 10. Fund Infusion in terms of this Resolution Plan to make all mandatory payments in accordance with the Code and settle all relevant dues in accordance with the Resolution Plan to inter alia Financial Creditors in accordance with this Resolution Plan and Admitted Financial Creditor Debt Acquisition. T+ 30 11. Payment of CIRP Costs, and all other mandatory payments required to be made in accordance with the Code. T+ 30 12. Admitted Financial Creditor Debt Acquisition. T+ 30 13. Payment to Employees and Workmen, Government and Statutory Authorities, Other Operation Creditors (Other than Employees and Workmen) T+ 30 Notes: The Resolution Applicant shall adhere to timelines prescribed under the Code in respect of mandatory payments. The Resolution Applicant shall make good faith efforts to meet the indicative timelines above. The actual timelines are dependent on factors beyond the control of the Resolution Applicant.
PART VIII – Other Terms and Conditions
SECTION 9: OTHER TERMS AND CONDITIONS
9.1 Approval from various Authorities
Under Applicable Law and as directed by the NCLT, the implementation of the Resolution Plan may require approval from various authorities. The Reconstituted Board, shall file applications with various authorities as required for implementation of the Resolution Plan, in a form and manner agreed with the Resolution Applicant.
9.2 Governing Law
This Resolution Plan and any agreements, documents and instruments executed in connection with the Resolution Plan shall be governed by the laws of India.
9.3 Binding Effect
This Resolution Plan once approved by the COC and the NCLT shall be binding in accordance with its terms on the Resolution Applicant, Corporate Debtor, all holders of Claims, Creditors, members, Promoters, joint venture partners, contracting counterparties, Workmen and Employees and all other parties in interest and each of their respective successors and assigns. Further, pursuant to the Code, the Resolution Plan shall be implemented by virtue of the NCLT Approval of this Resolution Plan, and no further acts, deeds, things, approvals or instruments shall be required for this purpose.
Each Creditor involved in the CIRP of the Corporate Debtor has submitted itself to the jurisdiction of the NCLT and agrees that the order of the NCLT in this CIRP shall be binding on it. Each Creditor acknowledges that implementation of the Resolution Plan shall be the full and final settlement of dues owed to it by the Corporate Debtor under any law or contract, and waives any rights, interests or causes of action it may have against the Corporate Debtor under any law or contract.
9.4 Severability and Modifications
Save as otherwise specified, in case of any question or difficulty arising under this Resolution Plan or in the implementation hereof or in any matter whatsoever connected herewith, including on account of a change in Applicable Law or interpretation of Applicable Law by a Governmental Authority, the Corporate Debtor, Resolution Professional, Reconstituted Board, Creditors of the Corporate Debtor and the Resolution Applicant, as applicable, shall co-operate in good faith to remove such difficulty and implement the Resolution Plan in a compliant manner, including by agreeing to alternate structures for implementation of the Resolution Plan to give effect to the commercial intention of the Resolution Applicant and to achieve the same commercial effect. No modification, change or amendment to the Resolution Plan shall be binding unless agreed to by the Resolution Applicant in writing.
9.5 Assignment of Interest
In the event of any of the Creditors assigning its dues either partially or fully to any other Person/ entity at any time post the approval of COC, this Resolution Plan shall be binding on the assignee in the same manner.
9.6 Costs
Except to the extent expressly set forth in this Resolution Plan, all costs in relation to the satisfaction of the requirement set out subsection 9.2.2 and implementation of the Resolution Plan shall be borne by the Resolution Applicant and after the Effective Date, may be borne by the Corporate Debtor and the Resolution Applicant may at its sole discretion, recover costs paid by it from the Corporate Debtor.
9.7 Termination and Consequences
This Resolution Plan shall, upon notice from the Resolution Applicant, terminate in the following cases, unless otherwise agreed to in writing by the Resolution Applicant ("Termination"):
(i)the satisfaction or waiver by the Resolution Applicant, as the case may be, of the Condition Precedent has not occurred prior to the Long Stop Date;
(ii)if the Resolution Plan is withdrawn by the Resolution Applicant prior to COC Approval Date;
(iii)if another resolution plan is approved by the COC;
(iv)at the option of the Resolution Applicant, upon the occurrence of a Material Adverse Change before the receipt of the final approval of the Resolution Plan by the Adjudicating Authority and/or any final decision by the Appellate Authority in relation thereto, in accordance with the Code;
(v)if the final approval of the Resolution Plan is not received from the Adjudicating Authority and/or any final decision is not received from the Appellate Authority in relation thereto prior to the Long Stop Date; and
(vi)any other circumstances as may be approved by the NCLT.
If the Resolution Plan is terminated or withdrawn in the manner set out herein, it shall stand revoked, cancelled and be of no effect and null and void. In such a case, the existing facilities of the Creditors (as mentioned hereof), the rights and remedies of the Creditors under their respective existing financing documents would continue as if they had not been waived, amended, modified, superseded or replaced by the Resolution Plan and the Creditors shall be entitled to enforce such rights and remedies under the existing financing documents, as if the same had not been waived and/or modified pursuant to this Resolution Plan and the other relevant documents executed thereof.
Notwithstanding anything contained in this Resolution Plan or any other document or instrument, if the Resolution Plan is terminated or withdrawn as above, the Resolution Applicant shall not be liable to make any payments to any persons, including to the Creditors of the Corporate Debtor or under any guarantee provided by, or on behalf of the Resolution Applicant, under contract, equity or otherwise. It is also clarified that upon Termination of this Resolution Plan, any payments made by the Resolution Applicant in accordance with this Resolution Plan or the RFRP shall be refunded to the Resolution Applicant within 7 days of such Termination, in a form and manner acceptable to the Resolution Applicant.
9.8 Definitive Documents
As required under the RFRP, parties (including the Corporate Debtor) shall enter into definitive agreements as required for implementation of the Resolution Plan, including agreements between the Corporate Debtor, and relevant creditors as necessary.
9.9 Disposal of Assets
Post the Effective Date, the Resolution Applicant shall be entitled to transfer/ assign/ demerge/ merge the Assets/ Undertaking of the Corporate Debtor to any group company of the Resolution Applicant and/or to such other entity as it deems fit.
9.10 Limitation of Liability
Subject to the provisions of the Code, the Resolution Applicant shall have no liability or obligation to any person under this Resolution Plan or under the RFRP, until the final approval of the Resolution Plan by the Adjudicating Authority, unless such approval is stayed by the Appellate Authority.
9.11 Adverse Interests
On and from the NCLT Approval Date, by order of the NCLT sanctioning this Resolution Plan, a restraint on, and prohibition of, all Adverse Actions shall be deemed to be declared until the Effective Date and in any case till the implementation of this Resolution Plan in full. All stakeholders shall be bound by the provisions of this Resolution Plan and such restraint and prohibition.
9.12 Stakeholders
All stakeholders shall be bound by the provisions of this Resolution Plan.
9.13 Comprehensive Plan
This Resolution Plan is a comprehensive proposal for all the Assets and liabilities (contingent or otherwise) of the Corporate Debtor, and provides a comprehensive insolvency resolution proposal for the Corporate Debtor basis the information, analysis, documents and estimates made available to us during the insolvency process (including in the Virtual Data Room and the Information Memorandum).
PRAYER
Any prayers required to be granted by the NCLT by the Resolution Applicant shall not be construed as conditionalities to the implementation of this Resolution Plan. In view of the facts mentioned above, the Resolution Applicant submits that, at the time of seeking approval from the NCLT, the prayers provided below shall be included, with such modifications as may be considered necessary by the NCLT:
1.To pass an order sanctioning the Resolution Plan submitted by the Resolution Applicant, being an exhibit to the petition, including sanction of the Resolution Plan with effect from the NCLT Approval Date, as defined in the Resolution Plan and making the Resolution Plan binding on the Corporate Debtor, all shareholders, Creditors, Government and Statutory Authorities, guarantors and all other stakeholders and persons, and ordering implementation of the Resolution Plan, without the requirement for any further act, deed, document or costs;
2.To pass an order directing that in accordance with Section 31(1) of the Code, that this Resolution Plan shall be binding on the Corporate Debtor together with its employees and workmen, members, Creditors, guarantors and all other stakeholders affected by the Resolution Plan and that accordingly, the approval of such employees and workmen, members, Creditors, Government and Statutory Authorities, guarantors and other stakeholders shall not be separately required to be undertaken, whether before or after the NCLT Approval Date, for implementation of various actions proposed to be taken pursuant to this Resolution Plan;
3.To pass an order confirming that this Resolution Plan for the Corporate Debtor has dealt with the interests of all the stakeholders in the Corporate Debtor, including the Financial Creditors (whether secured or unsecured, assenting or dissenting), Operational Creditors (including Employees, Workmen and Government and Statutory Authorities), Other Creditors and all other stakeholders in accordance with the Code;
4.To pass an order directing that in accordance with Section 238 of the Code, any action undertaken pursuant to the Resolution Plan by the Resolution Applicant will not require compliance with requirements under any other laws. Accordingly, the process stipulated under the Code for implementation of a resolution plan is a final and binding process on all stakeholders (including any Governmental Authorities);
5.To pass an order directing that the Corporate Debtor shall, after the date of receipt of the certified copy of the order to be made herein or within such other period as may be permitted by the NCLT, cause a certified copy thereof to be filed electronically with the Registrar of Companies, Mumbai for registration;
6.To pass an order granting a restraint on, and prohibition of, all Adverse Actions against the Corporate Debtor until the Effective Date;
7.To pass orders in respect of such incidental, consequential and supplemental matters as are necessary to ensure that the Resolution Plan is fully and effectively carried out, including orders that until the Effective Date, the board of directors and shareholders of the Corporate Debtor be restricted from voting in any manner or approving any actions that may be prejudicial to the interest of Corporate Debtor or the Resolution Applicant;
8.That liberty be reserved to the Corporate Debtor and the Resolution Applicant, and to all persons interested in the Resolution Plan to apply to the NCLT for any direction(s) that may be necessary for the purpose of carrying out the Resolution Plan;
9.To pass an order that as time is of the essence of the Code, and to preserve the value of the assets of the Corporate Debtor, the speedy implementation of the Resolution Plan is of utmost importance, and therefore, all Government and Statutory Authorities are required to take all necessary actions (if required) for the implementation of the Resolution Plan approved by the NCLT, without delay;
10.To pass an order directing the manner of distribution of the Employees and Workmen Payments among the Employees and Workmen including in respect of Employee Claims and the Workmen Claims;
11.To pass an order approving the reliefs and waivers requested by the Resolution Applicant in Section 6 of the Resolution Plan, with such modifications as may be considered necessary by the NCLT;
12.For such further or other order/s be made and/or directions be given as the NCLT may deem fit and proper in the facts and circumstances of the case and in the interests of justice.
We understand that the members of the COC have further right to renegotiate the terms of this Resolution Plan and the decision of the COC in selection of the Successful Resolution Applicant shall be final and binding on us.
DEFINITIONS, ABBREVIATIONS AND INTERPRETATION
Unless the context otherwise indicates or requires, the following terms in this Resolution Plan shall have the respective meanings given below. Unless otherwise specified, references to all statutes, ordinances, rules and regulations are to such statutes, ordinances, rules and regulations as amended and applicable on the date of this Resolution Plan.
Adjudicating Authority / NCLT Means the National Company Law Tribunal, Mumbai bench. Admitted Financial Creditor Debt Debt owed by the Corporate Debtor to Financial Creditors as admitted by the Resolution Professional until the last date for admission of such debt. For the avoidance of doubt, the Resolution Applicant shall be under no obligation to make any payments in relation to any debt that has not been admitted by the Resolution Professional pursuant to the Code (including Section 25 of the Code). Admitted Financial Creditor Debt Acquisition Has the meaning ascribed to the term in Section 1.2 (Summary of Financial Proposal and Other Material Terms) of the Resolution Plan. Admitted Operational Creditor Debt The debt owed by the Corporate Debtor to Operational Creditors as admitted by the Resolution Professional until the last date for admission of such debt as specified in sub-section 3.3.1 (Treatment of Operational Creditors) of this Resolution Plan. For the avoidance of doubt, the Resolution Applicant shall be under no obligation to make any payments in relation to any debt that has not been admitted by the Resolution Professional pursuant to the Code (including Section 25 of the Code). Admitted Government and Statutory Authority Claims Means debt owed by the Corporate Debtor to Government and Statutory Authorities as admitted by the Resolution Professional until the last date for admission of such debt. For the avoidance of doubt, the Resolution Applicant shall be under no obligation to make any payments in relation to any debt that has not been admitted by the Resolution Professional pursuant to the Code (including Section 25 of the Code). Admitted Other Operational Creditors' Claims Means debt owed by the Corporate Debtor to Operational Creditors (other than Employees, Workmen and Government and Statutory Authorities) as admitted by the Resolution Professional until the last date for admission of such debt.
For the avoidance of doubt, the Resolution Applicant shall be under no obligation to make any payments in relation to any debt that has not been admitted by the Resolution Professional pursuant to the Code (including Section 25 of the Code). Adverse Actions Any and all of the following actions: (i) all adverse inquiries, investigations, notices, causes of action, suits, claims, disputes, litigation, arbitration or other judicial, regulatory or administrative proceedings, pending or threatened, present or future, against, the Corporate Debtor or the affairs of the Corporate Debtor, including any judgment or order in any court of law, tribunal, arbitration panel or other authority; (ii) any transfer, encumbrance, alienation or disposal of any assets or any legal right or beneficial interest therein; (iii) any action to foreclose, recover or enforce any Encumbrance created in respect of any of the Corporate Debtor's property or exercise of any subrogation right or other similar right against the Corporate Debtor, including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; and (iv) the recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor. Affiliate/Nominee Means a company that is eligible to submit a resolution plan under Section 29A of the Code; and is a direct or step-down wholly owned subsidiary of the Resolution Applicant. Appellate Authority Means the NCLAT and/or the Supreme Court of India as the context may require or any other court of competent jurisdiction. Applicable Law All applicable laws, by-laws, rules, regulations, orders, ordinances, protocols, codes, guidelines, policies, notices, directions, judgments, decrees or other official directive having the force of law of any Government and Statutory Authority or person acting under the authority of any Government and Statutory Authority of India and includes labour legislations and regulations prescribed by the IBBI, RBI and SEBI relating to the approval and implementation of this Resolution Plan and any matter related thereto. Approving Financial Creditors The Financial Creditors, who vote in favour of the Resolution Plan.
Acquisition Shall mean acquisition of the Corporate Debtor as a going concern as specified in Section 4 (Acquisition as going concern) of this Resolution Plan. Asset(s) Any estate, rights, claims, title, interest, authorities, assets or properties of every kind, nature, character and description (whether immovable, movable, tangible, intangible, absolute, accrued, fixed or otherwise) as operated, hired, rented, owned or leased by the Corporate Debtor, from time to time, including cash, cash equivalents, deposits, receivables, securities, accounts and note receivables, real estate, plant and machinery, equipment, patents, copyright, domain names, trademarks, brands and other intellectual property, raw materials, inventory, furniture, fixtures, insurance, accretions and appurtenances of the Corporate Debtor of whatsoever nature and wheresoever situated, whether or not mentioned in the Information Memorandum. Board/Board of Directors The Board of Directors of the Corporate Debtor or any other entity, and any committees thereof, as the context may require. Business The business of the Corporate Debtor as proposed pursuant to this Resolution Plan. Business Day Means the day when banks are open for business in Mumbai. Business Plan The Business Plan prepared for the Corporate Debtor, attached as Schedule 1 (Business Plan) of this Resolution Plan. Capital Reduction Has the meaning ascribed to the term in subsection 4.2 (iv) (Acquisition as going concern) of the Resolution Plan. CIRP The corporate insolvency resolution process, as defined under the Code. CIRP Costs The insolvency resolution process costs, as determined in accordance with the Code. CIRP Period Means the period of 180 (one hundred and eighty) days from the date of admission of CIRP application by the Adjudicating Authority being November 21, 2018, or as extended subject to approval by the COC and Adjudicating Authority. CIRP Commencement Date November 21, 2018 Claim(s) Has the meaning ascribed to the term under the Code. COC Committee of Creditors, as established in accordance with the provisions of the Code. COC Approval Date Means the date on which the COC approves this Resolution Plan in accordance with the RFRP and the Code. Code The Insolvency and Bankruptcy Code, 2016, read along with all related rules, regulations and circulars, issued by the IBBI (each as amended from time to time). Corporate DebtorNRC Limited (CIN:L17120MH1946PLC005227) having its registered office at 67, Ground Floor, Surajmal Building, Nakhoda Street, Pydhonie, Mandvi, Mumbai-Maharashtra-440003 Companies ActThe Companies Act, 2013, as amended from time to time. Conditions PrecedentThe conditions set out in sub-section 9.2.2 (Indicative Timeline for Implementation of Proposed Resolution Plan) of Part VII (Timeline of Implementation of Resolution Plan) of the Resolution Plan. Connected PersonHas the meaning ascribed to it under Section 29A of the Code. Credit EnhancementHas the meaning ascribed to the term in sub-section 3.2.3 (Treatment of Financial Creditors) of Part II (Financial Proposal) of the Resolution Plan. Creditor(s)All creditors of the Corporate Debtor, including without limitation the Financial Creditors, Operational Creditors and Other Creditors of the Corporate Debtor. For the avoidance of doubt, the Resolution Applicant shall be under no obligation to make any payments to any Creditor that has not been so identified by the Resolution Professional pursuant to the Code (including Section 25 of the Code). Definitive DocumentsHas the meaning ascribed to the term in sub-section 10.8 of Part VIII (Other Terms and Conditions) of the Resolution Plan. Director(s)Director(s) of the Corporate Debtor as at the CIRP Commencement Date. Effective DateHas the meaning ascribed to the term in sub-section 4.2 (Acquisition as going concern) of Part III (Transaction Structure) of the Resolution Plan. Employees ClaimsMeans the claims submitted by Employees of the Corporate Debtor, whether admitted or not by the Resolution Professional, or contingent or otherwise. Employees and Workmen PaymentsHas the meaning ascribed to the term in Section 1.2 (Summary of Financial Proposal and Other Material Terms) of the Resolution Plan. EmployeesMeans the employee(s) on the payroll of the Corporate Debtor as on the NCLT Approval Date. EncumbranceMeans and includes any present or future encumbrance, claim, mortgage, pledge, equitable interest, assignment by way of security, conditional sales contract, charge (whether floating or fixed), hypothecation, lien, deposit by way of security, option, restriction, right of first refusal, right of pre-emption, right, security interest, interest or preference, beneficial ownership (including usufruct and similar entitlements) granted to or in favour of any third party; title defect; title retention agreement, non-disposal undertaking, voting trust agreement, commitment, restriction or limitation of any nature whatsoever, including restriction on voting rights, any restriction imposed under the applicable laws or contract on the transferability; transfer, right to receive income, or exercise of any other attribute of ownership, right of set-off; any arrangement for the purpose of, or which has the effect of, granting security, any provisional or executional attachment, and any other interest held by a third party or any other encumbrance or any other security interest of any kind whatsoever; any agreement, whether conditional or otherwise, to create any of the same or any other adverse claim of any kind whatsoever. Existing Preference ShareholdersThe existing preference shareholders of the Corporate Debtor as on the CIRP Commencement Date, if any. Financial CreditorsThe financial creditors, as defined under the Code, of the Corporate Debtor. For the avoidance of doubt, the Resolution Applicant shall be under no obligation to make any payments to any person as a Financial Creditor that has not been so identified by the Resolution Professional pursuant to the Code (including Section 25 of the Code). Financial Creditor PaymentsHas the meaning ascribed to the term in Section 1.2 (Summary of Financial Proposal and Other Material Terms) of the Resolution Plan. Financial DebtHas the meaning ascribed to the term under the Code. For the avoidance of doubt, the Resolution Applicant shall be under no obligation to make any payments in relation to any debt that has not been admitted by the Resolution Professional pursuant to the Code (including Section 25 of the Code). Financial Year/ FYThe accounting year commencing each calendar year on April 1 and ending on the following March 31. Financial RestructuringHas the meaning ascribed to the term in Section 1.2 (Summary of the Financial Proposal and Other Material Terms) of this Resolution Plan. Fund InfusionHas the meaning ascribed to the term in Section 1.2 (Summary of the Financial Proposal and Other Material Terms) of this Resolution Plan. Governmental and Statutory AuthoritiesAny applicable central, state or local government, legislative body, regulatory or administrative authority, agency or commission or any court, tribunal, board, bureau, instrumentality, judicial or arbitral body having jurisdiction over the territory of India in accordance with Applicable Law.
Government and Statutory Authority PaymentsHas the meaning ascribed to the term in Section 1.2 (Summary of Financial Proposal and Other Material Terms) of the Resolution Plan. IBBIInsolvency and Bankruptcy Board of India. IBBI (CIRP) RegulationsInsolvency and Bankruptcy Board of India (Insolvency Resolution Process For Corporate Persons) Regulations, 2016. Indemnified PartiesHas the meaning ascribed to the term in subsection 1.3 (Indemnity) of this Resolution Plan Income Tax ActThe (Indian) Income Tax Act, 1961. Independent DirectorHas the meaning ascribed to the term in Companies Act, 2013 Insolvency ProfessionalMeans Mr. Vikas Prakash Gupta, being the insolvency professional bearing insolvency professional registration number IBBI/IPA-001/IP-P00501/2017-2018/10889. Liquidation ValueHas the meaning ascribed to the term in Regulation 35 of the IBBI (CIRP) Regulations. List of CreditorsList of the Creditors of the Corporate Debtor as uploaded on the Virtual Data Room until the date of submission of this Resolution Plan. Long Stop DateThe 365th day from the date of submission of this Resolution Plan. Lock-outMeans lock-out declared by the Corporate Debtor with effect from November 15, 2009 in terms of the Industrial Disputes Act, 1947. Material Adverse Change(i) Any event, occurrence (including any natural calamity), fact, condition or change that occurs, or is discovered on or after the date of this Resolution Plan that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to: (a) the Business, results of operations, financial condition, or Assets of the Corporate Debtor (including its Undertaking, or any part thereof); (b) the ability of the Resolution Applicant, Corporate Debtor, or the COC to consummate the transactions contemplated hereby; (ii) the illegality, invalidity or unenforceability of the Resolution Plan. Provided that any all judgment or order in any court of law, tribunal, arbitration panel or other authority which is adverse to the Corporate Debtor in any inquiries, investigations, notices, causes of action, suits, claims, disputes, litigation, arbitration or other judicial, regulatory or administrative proceedings, disclosed in the Virtual Data Room shall not be a Material Adverse Change. NCLATMeans the National Company Law Appellate Tribunal. NCLT ApprovalMeans the order of the NCLT approving the resolution plan NCLT Approval DateThe date of approval of the Resolution Plan, as approved by CoC, by the NCLT. Information MemorandumThe disclosure document prepared and issued by the Resolution Professional in accordance with the Code for the proposed CIRP, and available in the Virtual Data Room. Operational CreditorsAll operational creditors, as defined in the Code, of the Corporate Debtor. For the avoidance of doubt, the Resolution Applicant shall be under no obligation to make any payments to any person as an Operational Creditor that has not been so identified by the Resolution Professional pursuant to the Code (including Section 25 of the Code). Operational DebtHas the meaning as ascribed to the term in Section 5(21) of the Code. For the avoidance of doubt, the Resolution Applicant shall be under no obligation to make any payments in relation to any debt that has not been admitted by the Resolution Professional pursuant to the Code (including Section 25 of the Code). Ordinary Course of BusinessAn action taken by or on behalf of the Corporate Debtor, that is taken in accordance with sound and prudent business practices, and is: (a) recurring in nature and is taken in the ordinary course of the Corporate Debtor's normal day-to-day operations; (b) similar in nature and magnitude to actions customarily taken in the ordinary course of the normal day-to-day operations of other Persons that are engaged in businesses similar to the Business; and (c) consistent with past custom, practice and norms of the industry prevalent in Business of the Corporate Debtor. Other CreditorsCreditors who have filed claims against the Corporate Debtor pursuant to Regulation 9A of the IBBI (CIRP) Regulations, and any other creditor or Person having a claim (whether contingent or otherwise a 'Claim' as set out in the Code) against the Corporate Debtor, and who is not a Financial or Operational Creditor. For the avoidance of doubt, the Resolution Applicant shall be under no obligation to make any payments to any person as an Other Creditor who has not been so identified by the Resolution Professional pursuant to the Code (Section 25 of the Code). Other Operational CreditorsHas the meaning ascribed to the term in Section 1.2 (Summary of Financial Proposal and Other Material Terms) of the Resolution Plan. Other Operational Creditor PaymentsHas the meaning ascribed to the term in Section 1.2 (Summary of Financial Proposal and Other Material Terms) of the Resolution Plan. Outstanding ContributionsHas the meaning ascribed to the term in Section 1.2(B) (Summary of Financial Proposal and Other Material Terms) of the Resolution Plan. PersonAny individual, limited or unlimited liability company, corporation, partnership (whether limited or unlimited), proprietorship, Hindu undivided family, trust, union, association, government or any agency or political subdivision thereof or any other entity that may be treated as a person under Applicable Law, and shall include their respective successors and in case of an individual shall include his/her legal representatives, administrators, executors and heirs, and in case of a trust shall include the trustee or the trustees and the beneficiary or beneficiaries from time to time. ProceedingsHas the meaning ascribed to the term in Section 1.2(B) (Summary of Financial Proposal and Other Material Terms) of the Resolution Plan. PromotersAny person who is a promoter of the Corporate Debtor in terms of the Companies Act. Promoter GroupHas the meaning ascribed to the term in clause (zb) of sub-regulation (1) of regulation 2 of the Securities and Exchange Board of India (Issue of capital and Disclosure Requirements) Regulations, 2009. RBIReserve Bank of India. Related PartyShall have the meaning ascribed to the term 'related party' in Section 5(24), Section 5(24)A of the Code or Section 2(76) of the Companies Act, as the context may require. Resolution ApplicantMeans Adani Properties Private Limited, having its registered address at Shikhar, Nr Mithakhali Six Roads, Navrangpura, Ahmedabad Gujarat - 380009 India, and any other entity as may be mutually agreed with the COC in accordance with the RFRP. Resolution PlanThis resolution plan including all Parts, Schedules and Annexures thereto prepared and submitted by the Resolution Applicant in compliance with the Code read with the Regulation 38 of the IBBI (CIRP) Regulations in response to the Information Memorandum made available by the Resolution Professional. RFRPMeans the Request For Resolution Plan issued by the Resolution Professional for inviting submission of resolution plans in relation to the Corporate Debtor. ROCRegistrar of Companies. Resolution ProfessionalMeans Mr. Vikas Prakash Gupta, being the insolvency professional bearing insolvency professional registration number IBBI/IPA-001/IP-P00501/2017-2018/10889, or any successor resolution professional appointed by the NCLT. Rupees/ INRIndian Rupee. SEBISecurities and Exchange Board of India constituted under the Securities and Exchange Board of India Act, 1992 (as amended from time to time). SecurityHas the meaning ascribed to the term in sub-section 3.6.1 (ii) of Part II (Treatment of Stakeholders) of the Resolution Plan. Subsidiaries/SubsidiaryHas the meaning ascribed to the term "subsidiary" in sub-section 2 (87) of the Companies Act. TaxMeans all federal, state, local, and income (foreign or domestic), gross tax, and includes: (a) all forms of taxation, duties, fees, contributions, levies, deductions, imposts, cess, charges, assessments or the like of any nature whatsoever by any government authority pursuant to any applicable law, whether direct or indirect, including those in the nature of income tax, minimum alternate tax, withholding tax, provident fund contributions or payments, employee state insurance and gratuity contributions, value added tax, customs, octroy, excise duty, service tax, real estate taxes, other municipal taxes and duties, environmental duties; those on income, gross receipts, licence, leases, permissions, payroll, employment, wealth, severance, stamp, occupation, premium, windfall profits, environmental, capital stock, franchise, profits, unemployment, disability, real property, personal property, sales, use, transfer, registration; those in the nature of social security (or similar); or other tax of any kind or any charge of any kind in the nature of (or similar to) taxes whatsoever and whenever imposed, including all related penalties, charges, costs and interest in the Republic of India; and (b) any liability for the payment of any amounts of the type described in sub-clause (a) above of this definition as a result of being a member of an affiliated, consolidated, combined or unitary group for any period, as a result of any tax sharing or tax allocation agreement, arrangement or understanding, or as a result of being liable for another person's taxes as a transferee or successor, by contract or otherwise. TerminationHas the meaning ascribed to the term in subsection 10.7 of Part VIII (Other terms and conditions) of the Resolution Plan. Termination BenefitsHas the meaning ascribed to the term in Section 1.2(B) (Summary of Financial Proposal and Other Material Terms) of the Resolution Plan. Third Party Security ProviderHas the meaning ascribed to the term in subsection 3.2.3 of Part II (Treatment of Stakeholders) of the Resolution Plan. UndertakingAll the undertakings and entire business of the Corporate Debtor, as the context may require, as a going concern, including, without limitation: (a) all the assets and properties including fixed assets (whether movable or immovable, tangible or intangible, present, or future of whatsoever nature), cash, investments and current assets of the Corporate Debtor, in each case, wherever situated; (b) all permissions, approvals, consents, permits, quotas, rights, entitlements and other licenses or similar instruments (whether vested or potential and whether under agreements or otherwise); (c) all the loans, liabilities of the Corporate Debtor, whether provided for or not in the books of account or disclosed in the balance sheet of the Corporate Debtor; (d) all benefits and obligations under the contracts, deeds, bonds, agreements, schemes, arrangements and other instruments of any nature of the Corporate Debtor; (e) all books, records, files, papers, and all other records and documents, whether in physical or electronic form relating to business activities and operations of the Corporate Debtor; and (f) all employees of the Corporate Debtor, if any. Upfront Equity InfusionMeans INR 10.00 Crore which is proposed to be infused into the Corporate Debtor by the Resolution Applicant, by way of subscription to equity shares of the Corporate Debtor in accordance with section 4 (Acquisition as going concern) of the Resolution Plan. UnionsMeans NRC Employees Union, NRC Majdoor Sangh, All India Industrial and General Workers Union, as applicable Virtual Data Room / Data RoomMeans all documents (including excel sheets, e-mails and other documents of any nature whatsoever) that have been made available as on April 25, 2019 organised by the Resolution Professional. WorkmenHas the meaning ascribed to the term 'workman' in the Code. Workmen ClaimsMeans the claims submitted by Workmen, whether admitted or not by the Resolution Professional, or contingent or otherwise.
INTERPRETATION
(a)The index, headings, sub headings, titles and bold typeface are only for convenience and shall be ignored for the purpose of interpretation.
(b)Unless the context of this Resolution Plan otherwise requires:
(i)words using the singular or plural number also include the plural or singular number, respectively;
(ii)words of any gender are deemed to include the other gender;
(iii)the terms "hereof", "herein", "hereby", "hereto" and derivative or similar words refer to this entire Resolution Plan or specified sections of this Resolution Plan, as the case may be;
(iv)the term "Part", "Section" and "Schedule" refers to the specified Part, Section or Schedule of this Resolution Plan;
(v)the words "include", "including", "for example" or "such as" shall be construed without limitation and are not used as, nor are to be interpreted as, a word of limitation;
(vi)the Schedules hereto shall constitute an integral part of this Resolution Plan;
(vii)any reference to "approval", "consent", "waiver", "mutually agreed" or "mutual agreement" shall mean approval, consent or waiver in writing or a mutual agreement in writing, as the case may be;
(viii)any word or phrase defined in the body of this Resolution Plan as opposed to being defined in the definitions section above shall have the meaning assigned to it in such definition throughout this Resolution Plan, unless the contrary is expressly stated or the contrary clearly appears from the context; and
(ix)In the absence of a definition being provided for a term, word or phrase used in this Resolution Plan, no meaning shall be assigned to such term, word or phrase which derogates or detracts in any way from the intent of this Resolution Plan.
MAPPING
PROVISIONS OF THIS RESOLUTION PLAN AGAINST PROCESS DOCUMENT REQUIREMENTS
# Source of Requirement Description of Requirement Resolution Plan Reference addressing such requirement Mandatory contents of the Resolution Plan 1. Section 30 (2)(a) of Code. payment of the CIRP Costs in priority to the payment of other debts of the Corporate Debtor. Section 3.1 (Payment of CIRP Costs), Part II (Treatment of
# Source of Requirement Description of Requirement Resolution Plan Reference addressing such requirement Stakeholders) of the Resolution Plan 2. Section 30(2)(b) of the Code and Regulation 38(1) of IBBI (CIRP) Regulations payment of the debts of the Operational Creditors in priority to the payment of the Financial Creditors such that the amount received by them is not less than the amount to be paid to the Operational Creditors in the event of a liquidation of the Corporate Debtor. Section 3.3 (Treatment of Operational Creditors), Part II (Treatment of Stakeholders) of the Resolution Plan 3. Regulation 38(1A) of IBBI (CIRP) Regulations statement as to how the Resolution Plan has dealt with the interests of all stakeholders, including Financial Creditors and Operational Creditors of the Corporate Debtor. Section 3.11, Part II (Treatment of Stakeholders) of the Resolution Plan 4. Regulation 38(2)(a) of IBBI (CIRP) Regulations Term of the Resolution Plan and its Implementation Schedule. Section 1.5, (Term of the Resolution Plan and its Implementation) and Section 9.5, Part VII (Timeline of Implementation of the Resolution Plan) of the Resolution Plan 5. Section 30(2)(c) of the Code and Regulation 38(2)(b) of IBBI (CIRP) Regulations. Mechanism regarding management and control of the affairs of the Corporate Debtor post approval of the Resolution Plan by the Adjudicating Authority. Section 7 (Management and Control of the Corporate Debtor), Part VI (Management and Control of the Corporate Debtor) of the Resolution Plan
# Source of Requirement Description of Requirement Resolution Plan Reference addressing such requirement 6. Section 30 (2)(d) of Code and Regulation 38(2)(c) of IBBI (CIRP) Regulations. Manner of implementation and supervision of the Resolution Plan and adequate means for supervising the implementation of the Resolution Plan Section 8 (Supervision and Implementation of the Resolution Plan), Part VI (Management and Control of the Corporate Debtor) of the Resolution Plan 7. Section 30 (2)(e) of Code. Declaration that the Resolution Plan is not in contravention of provisions of the Applicable Laws. Section 1 (Executive Summary of the Resolution Plan) of the Resolution Plan 8. Regulation 38(3)(a) of IBBI (CIRP) Regulations. Resolution Plan to demonstrate that it addresses the cause of default Clause 1.2, Section 1 (Executive Summary of the Resolution Plan), Section 2 (Financial Proposal) and Section 3 (Treatment of Shareholders) of the Resolution Plan. 9. Regulation 38(3)(b) of IBBI (CIRP) Regulations. Resolution Plan to demonstrate that that it is feasible and viable Schedule 1 (Business Plan) of the Resolution Plan 10. Regulation 38(3)(c) of IBBI (CIRP) Regulations. Resolution Plan to demonstrate that it has provisions for effective implementation of the Resolution Plan Schedule 1 (Business Plan) of the Resolution Plan 11. Regulation 38(3)(d) of IBBI (CIRP) Regulations. Details of approvals required and the timeline for the same Not Applicable
# Source of Requirement Description of Requirement Resolution Plan Reference addressing such requirement 12. Regulation 38(3)(e) of IBBI (CIRP) Regulations. Ability of the Resolution Applicant has the capability to implement the resolution plan Brief Background of the Resolution Applicant and Schedule 1 (Business Plan) 13. Section 30(1) of Code and Regulation 39(1) of the IBBI (CIRP) Regulations Disclosures and undertaking of the Resolution Applicant under Section 29A of the Code Appended to the Resolution Plan LIST OF SCHEDULES AND ANNEXURES THAT HAVE BEEN ATTACHED SEPARATELY
LIST OF SCHEDULES
Schedules Particulars 1 Business Plan LIST OF ANNEXURES
Annexure Particulars Annexure 1 Salient Terms and Conditions of the Proposal Annexure 2 Composition and Ownership Structure of the Resolution Applicant SCHEDULE 1 - BUSINESS PLAN
Adani Group
The Adani Group is one of India's leading business houses with revenue of over $11 billion. Adani has grown to become a global integrated infrastructure player with businesses in key industry verticals - Resources, having businesses in coal mining and management; Logistics, which is spread across ports, logistics, shipping and rail; Energy, with renewable, thermal power generation and transmission businesses and Agro commodities and ancillary industries. The integrated model is well adapted to the infrastructure challenges of the emerging economies.
In a short span of time Adani has evolved as India's largest Integrated Coal Management player, India's largest private thermal power producer, India's largest port developer & operator and a company with the largest portfolio of brands in the consumer essentials edible oils segment.
Adani Group's growth and vision has always been in sync with the idea of Nation Building. We live in the same communities where we operate and take our responsibility towards contributing to the betterment of the society very seriously.
Business Plan
Considering the land size and Adani's expertise in logistics there is also an opportunity from a logistic and warehousing perspective which will be evaluated. The kind of warehouses that are ideal for the size of the subject land parcel are Bonded Warehousing, DTA Warehousing as well as Cargo specific Warehousing. As the company's expertise also lies in trucking service, there is an opportunity here from domestic movement perspective as well as first / last mile transport solution. Further, with a view to running the operations of the Corporate Debtor as a going concern, the Resolution Applicant will explore the possibility of recommencing the operations of the New Nylon Plant.
Adani Logistics
Adani Logistics Limited (ALL) incorporated in 2005, is a subsidiary of Adani Ports and SEZ Ltd (APSEZ), flagship Company of the Logistics vertical of Adani Group.
Adani Ports and Special Economic Zone Limited (APSEZ) is India's largest and fastest growing private sector port developer and operator with a pan-India logistics reach. APSEZ is the first private operator to have handled 200 million tons of cargo in a single financial year. APSEZ's presence across ten domestic ports forms a strategic 'string of pearls' around the Indian coastline.
Adani Logistics Limited (ALL) is a pan India end-to-end logistics services provider - asset and service based - across Container, Bulk, Breakbulk, Chemical, Auto and Liquid industries. ALL has developed and operates, multi-modal logistics parks at Patli, Kishangarh, Kilaraipur and Kanech. The Company is developing similar facilities at Malur and Nagpur, which shall be operational in 2019.
ALL is a licensed Container Train Operator holding Category-I License issued by Indian Railways and is involved in the movement of containerized cargo across India. The Company is largest private rail operator in the country with a fleet of 34 container rakes (additional 14 container rakes on order). The Company also operates 7 Grain rakes and 2 BOXN-HN rakes under GPWI scheme.
ALL has 400,000 sq. ft. of warehousing space across Patli, Kishangarh, Kilaraipur, Mundra, Bhiwandi and Chennai and offers options of Bonded Warehouse, DTA Warehousing as well as Cargo specific Warehouses. The Company is developing additional warehouses at Taloja, Mundra, Chennai, Khatuwas and Malur. ALL also provides trucking service for first / last mile transport solution and domestic movement.
ALL can develop an Integrated Industrial and Multi Modal Logistics Park at Ambivali. The park can be developed on 100+ acres land parcel. Following facilities can be setup in the Integrated Industrial and Multi Modal Logistics Park, in a phased manner -
1.Industrial Park for MSME
2.Logistics Complex:
a. Private Rail Freight Terminal
b. Large scale Distribution and fulfilment centres
c. Multi-commodity temperature controlled Warehouses / storages with pre-cooling facilities
d. Container / Cargo Handling Infrastructure
e. Trucking Terminal
f. Testing Labs (as required)
3.Skills Development Centre
4.Social Amenities
Adani Realty
Adani Realty is one of the youngest arms of India's top infrastructure and development conglomerate - Adani Group. Adani Realty to date has developed 13 lac Sqm of space and developing close to 13 Lac sqm of real estate space
including residential, commercial and social club projects across Ahmedabad, Mumbai, Pune, Gurgaon, Kochi & Mundra. In the affordable segment Adani has developed a flagship project namely 'Aangan' in Ahmedabad.
With a commitment to getting India at par with the most advanced countries around the world, we have begun development in India's most promising cities; integrating the finest design aesthetics with cutting edge construction technology.
The Plan is also to Promote the development of a vibrant residential and commercial centre with a potential for 24 Hour activity, consisting of residential living environment that provide a broad range of housing types for an array of housing needs, high intensity retail and employment facilities, vibrant and dynamic mixed used areas, open space and recreation facilities. Also to create a large integrated township that represents a unique, attractive and high end living space for occupants as well as visitors. To encourage lively, human scaled activity areas and gathering places through the promotion of high quality urban design.
ANNEXURE-I
SALIENT TERMS AND CONDITIONS OF THE PROPOSAL
1. Amount of upfront payment to creditors INR 160 Crore 2. Balance repayment obligations to creditors (other than upfront payment) NIL 3. Proposed instruments for repayment Loan/ Debt Instruments- NA Equity, if any- NA 4. Interest Rate and frequency of payment Loan/ Debt Instruments- NA 5. Repayment Schedule Loan/ Debt Instruments- NA 6. Security NA 7. Any equity being offered to Financial Creditor and terms for the same NIL 8. Corporate Guarantee or additional collateral/ security being offered by the Resolution Applicant NIL
9. Any third-party collateral being offered as additional security by the Resolution Applicant NIL 10. Details of Key Management Personnel of the Resolution Applicant with a brief description of experience in managing capital intensive assets Attached 11. Details of prior experience of the Resolution Applicant in managing capital intensive business Please refer to Overview of the Resolution Applicant 12. Brief description of successful turnaround case studies in India or abroad Please refer to Overview of the Resolution Applicant 13. Credit Rating of the Resolution Applicant for Unrated Corporate, please provide details of Net worth for Funds please provide details of Assets under management The Credit Rating Reports have been provided separately. Please refer to Volume II. DETAILS OF THE KEY MANAGEMENT PERSONNEL
| Sr. No. | Name | Designation | Function | Age (yrs) | Exp. In Infra / RE | Qualification | Past Experience |
|---|---|---|---|---|---|---|---|
| 1 | Krishan Prakash Maheshwari | CEO | CEO - Roads | 46 | 22 | BE & MBA | IFCI, Reliance Infra, UPL Ltd., Essel Highways |
| 2 | Kandarp Patel | President | Business Development | 45 | 20 | BE, MBA | Gujarat Power Corporation, GEB. |
The RP has enclosed a compliance certificate in Form H under Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 at Exhibit-M. By this, the RP has certified that the Resolution Plan complies with all the provisions of the Code and Regulations and does not contravene any of the provisions of the law for the time being in force.
The Resolution Professional Mr. Vikas Gupta has submitted an Affidavit pursuant to Section 30(1) of the Code confirming its eligibility under Section 29 A of the Code to submit a Resolution Plan. The Resolution Professional has further certified that 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 (99.88%) of voting share of financial creditors after considering its feasibility and viability and other requirements specified by the CIRP Regulations.
The Hon'ble Supreme Court in the case of "K. Sashidhar vs. Indian Overseas Bank" (2019 SCC OnLine SC 257) at para 49 of the Judgement held as below:
"49.The argument, though attractive at the first blush, but if accepted, would require us to re-write the provisions of the I&B Code. It would also result in doing violence to the legislative intent of having consciously not stipulated that as a ground - to challenge the commercial wisdom of the minority (dissenting) financial creditors. Concededly, the process of resolution plan is necessitated in respect of corporate debtors in whom their financial creditors have lost hope of recovery and who have turned into non-performer or a chronic defaulter. The fact that the concerned corporate debtor was still able to carry on its business activities does not obligate the financial creditors to postpone the recovery of the debt due or to prolong their losses indefinitely. Be that as it may, the scope of enquiry and the grounds on which the decision of "approval" of the resolution plan by the CoC can be interfered with by the adjudicating authority (NCLT), has been set out in Section 31(1) read with Section 30(2) and by the appellate tribunal (NCLAT) under Section 32 read with Section 61(3) of the I&B Code. No corresponding provision has been envisaged by the legislature to empower the resolution professional, the adjudicating authority (NCLT) or for that matter the appellate authority (NCLAT), to reverse the "commercial decision" of the CoC much less of the dissenting financial creditors for not supporting the proposed resolution plan. Whereas, from the legislative history there is contra indication that the commercial or business decisions of the financial creditors are not open to any judicial review by the adjudicating authority or the appellate authority."
Also, in this present Resolution Plan, it is to be noted that the amount proposed is less than the liquidation value. Therefore, we have to place reliance upon the judgments of the Hon'ble Supreme Court of India in the matter of Maharashtra Seamless Limited v Padmanabhan Venkatesh & Ors. [Civil Appeal No. 4242 of 2019] decided on 22.01.2020:
"The Appellate Authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the Adjudicating Authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the Adjudicating Authority in limited judicial review has been laid down in the case of Essar Steel (supra), the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the Appellate Authority ought to have interfered with the order 35 of the Adjudicating Authority in directing the successful Resolution Applicant to enhance their fund inflow upfront."
Paragraph 54 of the judgment of the Hon'ble Supreme Court in the matter Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta, decided on 15th November, 2019 in Civil Appeal Nos. 8766-8767 of 2019 (2019 SCC OnLine SC 1478)
"54.This is the reason why Regulation 38(1A) speaks of a resolution plan including a statement as to how it has dealt with to any judicial review by the adjudicating authority or the appellate authority."
Also, in this present Resolution Plan, it is to be noted that the amount proposed is less than the liquidation value. Therefore, we have to place reliance upon the judgments of the Hon'ble Supreme Court of India in the matter of Maharashtra Seamless Limited v Padmanabhan Venkatesh & Ors. [Civil Appeal No. 4242 of 2019] decided on 22.01.2020:
"The Appellate Authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the Adjudicating Authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the Adjudicating Authority in limited judicial review has been laid down in the case of Essar Steel (supra), the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the Appellate Authority ought to have interfered with the order 35 of the Adjudicating Authority in directing the successful Resolution Applicant to enhance their fund inflow upfront."
Paragraph 54 of the judgment of the Hon'ble Supreme Court in the matter Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta, decided on 15th November, 2019 in Civil Appeal Nos. 8766-8767 of 2019 (2019 SCC OnLine SC 1478)
"54.This is the reason why Regulation 38(1A) speaks of a resolution plan including a statement as to how it has dealt with the interests of all stakeholders, including operational creditors of the corporate debtor. Regulation 38(1) also states that the amount due to operational creditors under a resolution plan shall be given priority in payment over financial creditors. If nothing is to be paid to operational creditors, the minimum, being liquidation value - which in most cases would amount to nil after secured creditors have been paid - would certainly not balance the interest of all stakeholders or maximise the value of assets of a corporate debtor if it becomes impossible to continue running its business as a going concern. Thus, it is clear that when the Committee of Creditors exercises its commercial wisdom to arrive at a business decision to revive the corporate debtor, it must necessarily take into account these key features of the Code before it arrives at a commercial decision to pay off the dues of financial and operational creditors. There is no doubt whatsoever that the ultimate discretion of what to pay and how much to pay each class or subclass of creditors is with the Committee of Creditors, but, the decision of such Committee must reflect the fact that it has taken into account maximising the value of the assets of the corporate debtor and the fact that it has adequately balanced the interests of all stakeholders including operational creditors. This being the case, judicial review of the Adjudicating Authority that the resolution plan as approved by the Committee of Creditors has met the requirements referred to in Section 30(2) would include judicial review that is mentioned in Section 30(2)(e), as the provisions of 26 the Code are also provisions of law for the time being in force. Thus, while the Adjudicating Authority cannot interfere on merits with the commercial decision taken by the Committee of Creditors, the limited judicial review available is to see that the Committee of Creditors has taken into account the fact that the corporate debtor needs to keep going as a going concern during the insolvency resolution process; that it needs to maximise the value of its assets; and that the interests of all stakeholders including operational creditors has been taken care of. If the Adjudicating Authority finds, on a given set of facts, that the aforesaid parameters have not been kept in view, it may send a resolution plan back to the Committee of Creditors to re-submit such plan after satisfying the aforesaid parameters. The reasons given by the Committee of Creditors while approving a resolution plan may thus be looked at by the Adjudicating Authority only from this point of view, and once it is satisfied that the Committee of Creditors has paid attention to these key features, it must then pass the resolution plan, other things being equal."
Upon considering of the provisions of law and after having applied the ratio laid down by the Hon'ble Supreme Court of India in the abovementioned cases, this Resolution Plan approved by the CoC with the requisite majority satisfies all the criteria required for approval of Resolution Plan and accordingly the Resolution Plan has to be considered for approval.
The Resolution Applicant in its resolution plan, has dealt with interests of all stakeholders of the Corporate Debtor, including the Financial Creditors, the Operational Creditors and the CIRP cost.
Any relief sought for in the Resolution Plan, where the contract/agreement/understanding/proceedings/actions/notice etc. is not specifically identified or is for future and contingent liability, is at this moment rejected.
The Resolution Applicant, on taking control of the Corporate Debtor, shall ensure compliance under all applicable law for the time being in force.
Two points for the consideration before this Bench are that multiple interlocutory applications filed by the registered and unregistered trade unions and the staff on one side opposing the resolution plan and the second regarding the land which is purported to be in the possession of Rahejas. When it comes to the applications filed by the workmen and staff, what has been contained in the Resolution Plan for the settlement of dues of the workmen and staff on one side and in addition to the same another sixty-eight crores are being allocated by the Resolution Applicant which is absolutely and completely unconnected and outside the purview of the Resolution Plan. This has been proposed and accepted by the Resolution Applicant as directed by this Bench by an Interim Order dated 17.02.2020. While disposing of the applications filed by the above registered and unregistered trade unions and the staff, we made it very clear irrespective of the fact whether the trade union is registered or not, once a staff member or a worker, on the very production of their identity, can claim the amount and the Resolution Applicant shall consider the same on a pro rata basis along with others. Though this observation is just a replica of what has already been observed by this bench in MA Nos. 71/2020, 3099/2020, 2181/2020, 3112/2020 and 721/2020, for the sake of clarity, the same is being again mentioned herewith.
The next point for consideration is about the land which is subject matter of arbitration and is presently being fought by Rahejas on one hand and the Resolution Professional representing the Corporate Debtor and others on the other hand. In this issue we have taken into consideration the commitment/undertaking given by the Resolution Applicant in the Resolution Plan that they shall continue to fight the same until it is finally adjudicated or till the issue is settled.
Whatever the terms and conditions contained in the Resolution Plan and as approved by the CoC as regards the assets and liabilities if any shall have to be complied with in toto. There shall not be any deviation from the approved Resolution Plan in any manner by the Resolution Applicant.
On perusal of the Resolution Plan, we find that the resolution plan has necessary provisions for its effective implementation.
There were several objectors for the Resolution Plan and in pursuance of the same various parties have filed several Miscellaneous Applications. While at the time of hearing of the Resolution Plan, a proper opportunity was also given for the objectors and for other contenders. Some of the Miscellaneous Applications have already been heard and disposed of in the open court and some of them are heard and pending disposal. What we would like to emphasize is that every party is heard and a fair opportunity was given to all of them.
The resolution applicant shall obtain the necessary approval required under any law for the time being in force within one year from the date of this order or within such period as provided for in such law, whichever is later.
The resolution professional shall forward all records relating to the conduct of the corporate insolvency resolution process and the resolution plan to the IBBI to be recorded on its database.
The Resolution Plan is approved under section 31(1) of the Insolvency and Bankruptcy Code, 2016 with the above observations. The MA 2531/2019 is accordingly allowed and disposed of.