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2018 (9) TMI 945 - AT - Insolvency and BankruptcyCorporate Insolvency Resolution Process - control of nominee directors - Eligibility to submit ‘Resolution Plan’ in terms of Section 29A - ‘Committee of Creditors’ has not followed the procedures under Section 30(4), partly allowed the applications directing the ‘Resolution Professional’ and the ‘Committee of Creditors’ to revisit and reconsider their decision in the light of proviso to Section 29A (c) read with proviso to Section 30(4) of the ‘I&B Code'- Held that:- Admittedly, there are three nominee Directors of ‘AM India Ltd.’ in ‘KSS Petron’, one of the NPA Company. The nominee Directors of the Appellant- ‘AM India Ltd.’ had also resigned on 9th February, 2018 i.e. three days’ before the submission of the ‘Resolution Plan’. Therefore, it is clear that the ‘AM India Ltd.’ had complete control over the ‘KSS Petron’. As informed that after impugned order passed by the Adjudicating Authority, the ‘AM India Ltd.’ had made conditional deposit of ₹ 7,000 Crores in its own current account (Escrow Account). Such depositation of the amount in its own Escrow Account does not qualify as a payment of overdue amounts in terms of proviso to clause (c) of Section 29A. A conditional offer to pay the over dues amount cannot be accepted till it is complied in the light of proviso to clause (c) of Section 29A unconditionally. Dr. Abhishek Manu Singhvi, learned Senior Counsel appearing on behalf of ‘AM India Ltd.’ when asked, on instruction, submitted that if this Appellate Tribunal accept the ‘Resolution Plan’ submitted by the ‘AM India Ltd.’, it may deposit the non-performing assets amount with interest in the respective accounts which were declared as NPA in accordance with the guidelines of the Reserve Bank of India. As we hold that ‘AM India Ltd.’ is also entitled to the benefit of second proviso to sub-section (4) of Section 30, we give one opportunity to the ‘Resolution Applicant’- ‘AM India Ltd.’ to make payment of all overdue amount with interest thereon and charges relating to Non- Performing Accounts of both the ‘Uttam Galva’ and the ‘KSS Petron’ in their respective accounts within three days i.e. by 11th September, 2018. If such amount is deposited in the accounts of both Non-Performing Accounts of ‘Uttam Galva’ and ‘KSS Petron’ within time aforesaid and is informed, the ‘Committee of Creditors’ will consider the ‘Resolution Plan’ submitted by ‘AM India Ltd.’ along with other ‘Resolution Plans’, including the ‘Resolution Plan’ submitted by the ‘Numetal Ltd.’ on 29th March, 2018, and if so necessary, may negotiate with the ‘Resolution Applicant(s)’. An early decision should be taken by the ‘Committee of Creditors’ and on approval of the ‘Resolution Plan’, the ‘Resolution Professional’ will place the same immediately before the Adjudicating Authority who in its turn will pass order under Section 31 in accordance with law. The ‘Successful Resolution Applicant’ will take steps for execution of its ‘Resolution Plan’ and deposit the upfront money if proposed, in terms of the ‘Resolution Plan’. We direct the Adjudicating Authority to exclude the period the appeal was pending before this Appellate Tribunal i.e. from 26th April, 2018 till today (7th September, 2018) for the purpose of counting the total period of 270 days. The impugned order dated 19th April, 2018 passed by the Adjudicating Authority so far as it relates to eligibility of ‘Numetal Ltd.’ as on the date of the submission of the ‘Resolution Plan’ dated 29th March, 2018 is set aside. The impugned judgment/order in respect to ‘AM India Ltd.’ is affirmed with conditions as mentioned in the preceding paragraphs. All the appeals are disposed of with aforesaid observations and directions. The parties will bear their respective cost.
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