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TMI Blog2019 (8) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 7 of the 'Insolvency and Bankruptcy Code, 2016' (for short, 'the I&B Code') filed by the 'RBL Bank Limited' (Financial Creditor) 'Corporate Insolvency Resolution Process' was initiated against 'MBL Infrastructures Limited' (Corporate Debtor). By impugned order dated 18th April, 2018, the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata while disposed of 3 applications filed under sub-section (5) of Section 60 of the 'I&B Code', approved the 'resolution plan' submitted by the 3rd Respondent - Mr. Anjanee Kumar Lakhotia after allowing exclusion of 106 days for the purpose of counting 270 days of resolution period. The Adjudicating Authority noticed that the 'Committee of Creditors' has approved 'resolution plan' with voting share of 78.50% and the plan meets the requirements of sub-section (2) of Section 30 of the 'I&B Code'. 2. Appellants - 'IDBI Bank Limited', 'Bank of Baroda', 'Bank of India' and 'State Bank of India' are the dissenting financial creditors, who have challenged the approval of the plan on the grounds as discussed below. 3. According to the Appellants, 3rd Respondent - 'M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of Rs. 7,16,46,626/-. 9. Insofar as 'State Bank of India' is concerned, it is submitted that 'Mr. Anjanee Kumar Lakhotia' is also a personal guarantor, which was invoked by 'State Bank of India' on 2nd March, 2017 for default in payment of Rs. 56,46,71,807/- by the principal borrower. 10. Insofar as 'IDBI Bank' is concerned, it is submitted that 'Mr. Anjanee Kumar Lakhotia' is a personal guarantor, which was invoked on 27th July, 2018 as the principal borrower failed to pay the debt of Rs. 115,08,15,309/-. 11. Similarly, 'Mr. Anjanee Kumar Lakhotia' is also a personal guarantor of 'State Bank of India' in another matter, in respect of which personal guarantee has not been invoked. He is also a member of the consortium of 'Bank of Baroda', which has preferred one of the appeals. However, with regard to the 'Bank of India' no relationship has been shown. 12. Learned counsel for the Appellant(s) submitted that the 'resolution plan' was not approved by 'Committee of Creditors' with requisite majority. The original plan was put to vote in the meeting of the 'Committee of Creditors' held on 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 2016. Despite different adverse trade cycles, it survived. The reasons for the liquidity constrains was non-availability of need based and cancellation of two BOT projects due to non-release of sanctioned limits by Banks, as also delay in realization of receivables, non-issuance of LC/BGs within the sanctioned limits by some of the consortium banks, blockage of money in nearly completed projects, continued debt servicing despite inadequate cash accruals etc. After due discussions in 'Committee of Creditors' these have been recorded in TEV Study and Resolution Plan. During the 'Corporate Insolvency Resolution Process' between 30th March, 2017 to 18th April, 2018, the 'Financial Creditors' were in the control of the company through 'Resolution Professional' and during the said period 'Stock and Receivables Audit', 'Concurrent Audit' and 'Forensic Audit' was conducted by auditors empanelled with 'State Bank of India' and unanimously approved by the 'Committee of Creditors'. Statutory audit was also conducted and no irregularity was found. The 'Committee of Creditors' or the 'auditors' or 'external agencies' appointed by the 'Committee of Creditors' had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India & Ors.' - (2019) 4 SCC 17) observed : 73. Under the Code, the Committee of Creditors is entrusted with the primary responsibility of financial restructuring. They are required to assess the viability of a corporate debtor by taking into account all available information as well as to evaluate all alternative investment opportunities that are available. The Committee of Creditors is required to evaluate the resolution plan on the basis of feasibility and viability. Thus, Section 30(4) states: "30. Submission of resolution plan.-(1)- (3) * * * (4) The Committee of Creditors may approve a resolution plan by a vote of not less than sixtysix per cent of voting share of the financial creditors, after considering its feasibility and viability, and such other requirements as may be specified by the Board: Provided that the Committee of Creditors shall not approve a resolution plan, subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting loans, these banks and financial institutions undertake a detailed market study which includes a techno-economic valuation report, evaluation of business, financial projection, etc. Since this detailed study has already been undertaken before sanctioning a loan, and since financial creditors have trained employees to assess viability and feasibility, they are in a good position to evaluate the contents of a resolution plan. On the other hand, operational creditors, who provide goods and services, are involved only in recovering amounts that are paid for such goods and services, and are typically unable to assess viability and feasibility of business. The BLRC Report, already quoted above, makes this abundantly clear." 18. As the 'Committee of Creditors', by majority voting share of 78.50%, has approved the plan after taking into consideration the techno economic report relating to viability and feasibility of the resolution plan and viability of the 'Corporate Debtor', this Appellate Tribunal cannot sit in appeal in absence of any discrimination or unequal treatment of similarly situated 'Financial Creditors' or 'Operational Creditors'. We find no merit in these appeals.&n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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