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2022 (3) TMI 629 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAISeeking action post Resolution Plan approved - seeking adjudication of unresolved question of law arising out of final resolution plan and consequential directions thereof - whether the post approval of the resolution plan, the Financial Creditor of Corporate Debtor would continue to re-course to enforce the excluded securities? - HELD THAT:- This Bench is of the prima facie view that though the excluded securities as defined under the resolution plan means the promoter guarantee, Corporate guarantee issued by the Ushdev International Limited , the encumbrance created on the following immovable by the promoter of third parties, but however, these expressly declared excluded security are subsumed under clause 3.3 (iii) (c) and (h) wherein the plan proposal any balance financial debt forming part of admitted debt (unpaid debt) shall be converted into non-convertible redeemable preference share of the company being zero dividend and non-cumulative in nature at their face value. Further, the unpaid debt shall be converted into new preference share as detailed in schedule V. When the unpaid debt is converted into preference share there is no question of any outstanding liability which is available for enforcement qua the excluded the securities as provided to the Financial Creditor. When there is no debt which is realisable there is no question of any enforcement thereof. The applicant being dissenting Financial Creditor has opted to choose out of the plan but will be entitled to the rights available to the dissenting Financial Creditor as per Section 53 of the Code. This Bench therefore, concludes that the excluded securities are subsumed in the definition of unpaid debt and nothing remain to be realisable when the debt is extinguished and converted in to preference share as provided under the plan. The discussion of the CoC Members captured in the minutes of the meeting no way helps the applicant to enforce the excluded securities. In fact, there is novation of contract by approval of resolution plan by the CoC and all the CoC Members have acquiesced their rights to enforce such excluded securities and the applicant bank being part of the CoC, though being dissenting creditors is bound by the decision of the majority of CoC members. Application dismissed.
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