TMI Blog2018 (9) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... he resolution plan of the corporate debtor shall come into force with immediate effect. 3. The moratorium order passed under Section 14 shall cease to have effect. 4. The Resolution Professional shall forward all records relating to the conduct of the Corporate Insolvency Resolution Process and the Resolution Plan to the Insolvency and Bankruptcy Board of India to be recorded on its database. 5. A copy of this order is to be forwarded to IBBI. - CP(IB) NO. 363/KB/2017 - - - Dated:- 31-3-2018 - Shri Jinan K. R., Member (Judicial) For The Financial Creditor : Ms. Prerna Chaoudhary, Adv., Mr. Ranjit Chowdhary, Advocate For The Resolutioin Professional : Mr. Amrita Basu, Adv. Mr. Abhijit Sankar, Adv. And Aniruddha Roy, Mr. Avishek Guha, Adv And Sk. Shahrukh Raja, Adv. For The Resolution Applicant : Mr. Samar Roy, Advocate, Anirban roy, Debraj Saha, Adv, And Mr. Debangshu Dinda Advocat ORDER Per Shri Jinan K. R., Member (J) 1. This is an application filed by the Punjab National Bank/Financial Creditor under Section 7 of the Insolvency and Bankruptcy Code 2016 (in short I B Code) for initiating Corporate Insolvency Resolution Process (in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plan of the applicant in the CA. 4. According to the Ld. Pr. CS who is appearing for the applicant in CA 172 of 2018, the Resolution Plan of Omkara Infraprojects Private Limited already approved in the meeting of CoC held on 2nd February, 2018 and, therefore, approval of another plan in the meeting held on 14th February, 2018 is irregular and violates the provisions of the Code. He prays for extension of period of CIRP beyond 180 days and pass an order for investigations into the process of approval of resolution plan. 5. One another application CA (IB) No.205/KB/ 2018, was filed by Mr. Prakash Jain of Simplex Credits and Industries Ltd raising objections that the expression of interest submitted by him was not accepted by the resolution professional citing delay in submission and that resolution professional accepted other applicants plan even after there was delay in the submission by such parties and therefore there is discrimination in rejecting his plan. Upon the said allegations he prays for issuing directions to the Resolution Professional to accept the expression of interest of the resolution applicant and to further direct him to make over the Information Memorandum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding selection of resolution plan. 11. In the said meeting of CoC held on 02.02.2018, they have also taken a decision not to consider the plan submitted by M/s Sunil Jain, a promoter of the Corporate Debtor, who is a shareholder falls under Section 29A of the I B Code. By rejecting his plan the Committee of Creditors took a decision to circulate the remaining plans so as to consider in the meeting fixed on 14.02.2018. 12. In the meeting held on 14.02.2018 two resolution plans were finally considered by the CoC out of the four resolution plans submitted by the Resolution Professional. After due deliberation the Plan submitted by CP Ispat Private Limited and Pearls Dealers Pvt. Ltd. was put to vote. The Plan of CP Ispat Private Limited has been approved with 100% voting share and the Resolution Plan submitted by Pearl Dealers Private Ltd ( Omkara Group) was rejected by the Committee of Creditors upon the following reasons:- The Committee felt that accepting any plan after the cut off date of 2.2.2018 would amount to getting into an endless negotiation process with resolution applicants and would also compromise on the sanctity of the whole resolution process which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /KB/2018 was taken by the Committee of Creditors and its plan had under gone deliberation in various meetings of the CoC up to final voting stage and that Resolution Plan has been rejected by the CoC upon a unanimous decision held on 14.02.2018. Therefore, objection regarding the irregularity in not considering the Resolution Plan submitted by the applicant in CA 172/KB/2018 are also found devoid of any merits. 16. One another grave allegation also levelled against the Resolution Professional. It is good to read the allegations in the words of the complainant Resolution Applicant in CA No.172/KB/2018. It reads as follows:- Para (e) It is submitted that thereafter the Resolution Professional again contacted the Director of the Resolution Applicant and informed that the Resolution Professional had shared our bid amount with another Resolution Applicant and thereafter another bid was submitted by that Resolution Applicant increasing the amount by ₹ 25 lakhs approx. and hence the decision has been changed. It is submitted that such a process is completely unfair, illegal, malafide and in violation of the Code and ethics in letter and spirit. 17. Ld. Pr. C.S. Mr. Deepak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Resolution Plan which was approved by the CoC with 100% vote share. It shall be binding on the Corporate Debtor and its employees, members, creditors, guarantors and other stakeholders involving the Resolution Plan. 21. On a reading of the Resolution Plan, it is also understood that the plan provided for the term and implementation schedule of the plan. The plan also provided for the management and control of the business of the Corporate Debtor during the term of the plan and have adequate means of supervision of its implementation of CP Ispat Pvt. Ltd's Plan presented before the CoC by the resolution professional under sub section (3) of section 30 of the I B Code which was approved by the CoC with 100% voting share under sub section (4) of section 30 of the I B Code. Therefore this plan deserve to be admitted under sub section (1) of section 31 of I B Code by this adjudicating authority. 22. However, before parting with, it is time to take judicial notice of fixation of exaggerated insolvency resolution cost inclusive of fixation of fees of resolution professional in a lump sum manner by the CoC with out applying its mind in regards the fate of corporate debtor, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fee of a professional is fixed considering the volume, nature and complexity of the CIRP or the resources available at the disposal of a resolution professional. 25. No data available in the case in hand as to whether the RP has considered above said factors before it placed before the CoC in fixing insolvency resolution process cost and additional lump sum fee to the RP. In the said background of fixation of cost of resolution and fees of RP it appears to me that it is time to have a legitimate guidelines or regulation in this regards so as to safeguard and to ensure the prospects of revival of a dying corporate debtor not be at a highest cost which cannot be affordable by the corporate debtor. Hopefully IBBI would consider the above said factors and would frame necessary regulations or guidelines in regards fixation of fees and resolution cost by a resolution professional. 26. It is also strange to note that ARCIL a financial creditor (44.1% Vote Share ) in the CoC have opined that the Resolution Plan submitted by Pearl Dealers Private Limited (Omkara Group) which was not approved by the CoC should be kept as back up plan in case the approved plan is violated by the succes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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