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Judgment
[Per: Bench]
The above-mentioned applications are filed by Applicant/Mr. Sunil Kumar Agarwal who is the Resolution Professional of:- (i) Mr. Vishal Rameshbhai Karia, (hereinafter referred to as “Personal Guarantor -1”), (ii) Mr. Chetan Jayantilal Karia (hereinafter referred to as “Personal Guarantor-2”), (iii) Mr. Pritesh Jayantilal Karia (hereinafter referred to as “Personal Guarantor-3”), (iv) Mr. Bakul Jayantilal Karia (hereinafter referred to as “Personal Guarantor-4”), and (v) Mr. Pradip Jayantilal Karia (hereinafter referred to as “Personal Guarantor-5”) all the above collectively, Personal Guarantors of Pradip Overseas Limited, under Section 114 read with Section 112 of the Code a.w. Regulation 19 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Regulations, 2019 seeking approval of Repayment Plan submitted by Guarantors.
PRAYERS
The prayers made by the Applicant in all IAs are similar which are as under: -
I. Your Lordship may pleased to allow the present application;
II. Your Lordship may be pleased to approve repayment plan of the Personal Guarantors under Section 114 and be further pleased to order and declare that such approved Repayment Plan will give effect as per Section 115 of the Insolvency and Bankruptcy Code, 2016; and
III. Your Lordship may be pleased to pass common order for all the personal guarantors of Pradip overseas Limited i.e., Mr. Bakul Jayantilal Karia (CP (IB) 165 of 2021), Mr. Pradip Jayantilal Karia (CP (IB) NO. 166 of 2021), Mr. Pritesh Jayatilal Karia (CP (IB) 167 of 2021), Mr. Chetan Jayantilal Karia (CP (IB) 168 of 2021), Mr. Vishal Ramesh Karia (CP (IB) 175 of 2021) in view of consolidated repayment plan submitted by them.
IV. Your Lordship may be pleased to grant any other relief as may deem fit in the interest of justice
FACTS
The brief facts of the IAs are as follows:-
I. This Adjudicating Authority vide its order dated 05.10.2021 admitted the application filed under Section 95 of the Code against Personal Guarantors and forwarded the name of IRP as suggested by the Financial Creditor (“SBI”) to the IBBI.
II. Thereafter, the insolvency proceedings were initiated against the Personal Guarantors under Section 100 of the Code vide order of this Adjudicating Authority dated 27.04.2022 against all the Personal Guarantors (1 to 5).
III. The brief of dates and events of the present case are under:-
IV. The Applicant has conducted 3 meetings of creditors. The details of the creditor's meeting are as follows:-
| Date | Event | Annexure |
| 06.07.2022 | 1st Meeting of creditors | Annexure-C |
| 21.07.2022 | 2nd Meeting of creditors | Annexure-D |
| 07.09.2022 | 3rd Meeting of creditors | Annexure-F |
V. The revised repayment plan dated 27.07.202 was put to voting during 3rd meeting of creditors held on 07.09.2022. The said revised repayment plan was approved with 100% voting percentage (present and voting) in favour of the plan. However, SBI (holding 6.08% voting share) sent an email dated 20.10.2022 dissenting the repayment plan. A copy of voting sheet is annexed in the petition as Annexure-G at page no. 67. The email of the SBI dissenting repayment plan is also attached with the applications.
VI. The details of the admitted claims of creditors are as under:-
| Sr. No. | Name of FC | Amount Admitted As on 27.04.2022 | Amount Revised in view of payment receivable as per the resolution plan | Net Outstanding From PG | % Share |
| 1. | INVENT | 2719.49 | 79.67 | 2639.82 | 87.57 |
| 2. | SB | 188.72 | 5.88 | 182.84 | 6.08 |
| 3. | SCB | 110.99 | 0.00 | 110.99 | 3.57 |
| 4. | Phoenix Arc | 86.22 | 2.38 | 83.84 | 2.78 |
| Total Admitted Claim | 3105.42 | 87.93 | 3017.50 | 100.00 |
The claimants and amounts claimed are same for all the Personal Guarantors being Personal Guarantors Nos. 1 to 5.
VII. The details of distribution as per the repayment plan are as under:-
| PARTICULAR | Admitted Amount | Amount proposed (in Rs.) | Section of Repayment Plan |
|---|---|---|---|
| Insolvency Resolution Process Cost | 0.42 | 0.42 (100%) | Section 2(E) of the Repayment Plan |
| Payment to the | Section 2(C) of the | ||
| Secured Financial | Repayment Plan | ||
| Creditors | |||
| - Standard Chartered | 182.84 | 0.67 | |
| Bank | 2639.82 | 9.70 | |
| - State Bank of India | |||
| - Invent ARC | |||
| Total | 2933.66 | 10.78 (0.36%) | |
| Payment to the Unsecured Financial Creditors Phoenix ARC | 83.84 | 0.31 (0.36%) | Section 2(C) of the Repayment Plan |
| TOTAL AMOUNT | 3017.50 Crores | 11.51 Crores | - |
Key Features of Plan
VIII. Term of Repayment Plan
It is stated that the Term of Repayment of Plan shall last till the period of 15 months of approval of Repayment Plan by this Adjudicating Authority which is mentioned at Section 2(C) of the Resolution Plan at Page no 79/80 of applications as under:-
IX. Sources of Funds, Fair Value and Distress Value
It is stated that the guarantors propose to raise the funds from their past savings including their family members to tune of Rs. 1.74 crores and further intend to either sell their mortgaged properties or take personal loan against the following assets which have been mortgaged with the Financial Creditors. The Fair Value as per the Valuation Report is Rs.10.90 Crores and Distress Value is Rs.7.59 Crores. Further, the details of Sources of Funds along with Fair Value and Distress Value which are mentioned in Section 2(D) of the Resolution Plan are as under:-
X. Monitoring Committee
It is stated that the Monitoring Committee shall be constituted, comprising of two representatives of Financial creditors including one Representative of the Lead Financial Creditor i.e. INVENT, One Representative of Resolution Applicant and the Resolution Professional, to supervise the Implementation of Plan which is mentioned in Section 2(F) of the Resolution Plan as under:-
XI. Compliance Checklist
The RP has filed a compliance checklist briefing the insolvency process of personal guarantor attached as Annexure-I. A scanned copy of the same is as under:-
XII. Net worth Position of Guarantor including Excluded Assets of the Guarantors as on 27.04.2022:-
XIII. The Effect of the Repayment Plan
XIV. The Breach of Repayment Plan by the Personal Guarantors
XV. The Non-Cooperation by the Personal Guarantors
The Resolution Professional declares that the Insolvency Resolution Process for the Personal Guarantor has been conducted in compliance of the IBC, 2016 and the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Regulations, 2019.
The Resolution Professional further confirms that he has complied with Section 99 and Section 114 and minutes of all meetings have been circulated to the debtor (guarantor), creditor and to this Tribunal as required under Section 113 and confirmed by the respective members in the meeting.
In the above backdrop of the facts, we have heard learned counsel for the RP and perused the records. At the outset, it may be stated that when the RP convened a meeting of the creditor for the purpose of voting of the Repayment plan of the personal guarantor, it was always open for the Creditor to either accept or reject or even suggest modifications in the repayment plan. The revised repayment plan was approved with a 100% voting percentage (present and voting) at the 3rd meeting of creditors held on 07.09.2022. However, the SBI, having 6.08% voting share sent an email dated 20.10.2022 dissenting the repayment plan.
For the sake of ready reference, we reproduce Section 111 of the Code as under:-
The repayment plan or any modification to the repayment plan shall be approved by a majority of more than three-fourth in value of the creditors present in person or by proxy and voting on the resolution in a meeting of the creditors.
The repayment plan was approved in 3rd meeting of creditors held on 07.09.2022 with 100% voting (present and voted upon). However, the SBI, having voting share of 6.08% vide its email dated 20.10.2022 dissented the repayment plan.
Even, if we assume the voting of SBI, having 6.08% as a negative vote, the positive vote is 93.92% which is over and above the threshold given under Section 111 of the Code.
Therefore, keeping in view the provision contained in section 114 (1), we are passing an order on the basis of the report prepared by RP under section 106 of the Code which confirms that the repayment plan is in compliance with Section 112 of IBC, 2016.
The Resolution Professional also submits that the Insolvency Resolution Process for the Personal Guarantor has been conducted in compliance with the IBC, 2016 and the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Regulations, 2019.
Since, one of the prayers made by the Applicant at prayer no. III is to pass a common order for all Personal Guarantors (1 to 5) of Pradip Overseas Limited, we hereby allow prayer no. III and pass the common order.
Accordingly, we approve the repayment plan with effect from the date of this order, with the following directions:-
The Resolution Professional shall supervise the implementation of the Repayment Plan as per the terms and conditions mentioned therein and file his final report soon after the implementation of the plan or upon completion of the timelines mentioned in the plan, whichever is earlier.
Upon completion of the Repayment Plan, the Resolution Professional shall comply with the provisions stated in Section 117 of the Code.
The creditors shall withdraw all the legal proceedings before various fora against the debtor within one month of the fulfilment of repayment obligations by the debtor in accordance with the terms of the repayment plan.
In the event of a maximum 30 days’ delay for any unforeseen circumstances, granting a grace period shall be within the jurisdiction of the implementation committee to waive without declaring default.
On full implementation of the Repayment Plan, the Personal Guarantees given by all the Personal Guarantors shall be released by the Financial Creditors.
The debtor is permitted to share a certified copy of this repayment plan and order of this Tribunal approving this repayment plan with third parties including statutory/government authorities wherever needed.
The approval of the Repayment Plan shall not be construed as waiver of excluded debts as defined U/s 79(14) if any.
The Registry is directed to send a copy of this order to IBBI.
The Resolution Professional, the Applicant herein shall forward all the records pertaining to the Insolvency Resolution Process against the Personal Guarantor to IBBI.