TMI Blog2019 (9) TMI 1304X X X X Extracts X X X X X X X X Extracts X X X X ..... ove the appointment of Monitoring Agency from the date of this order until the closing date. Accordingly, the CoC and the RP would continue as Monitoring Agency. (f) The power of the Board of Directors of the Corporate Debtor shall remain suspended until the closing date. (g) Various reliefs sought from the statutory authorities under the Income-tax Act, 1961, Ministry of Corporate Affairs, Department of Registration and Stamps, Reserve Bank of India and others are also disposed of. We do not feel persuaded to accept the prayer made in the resolution plan yet the resolution plan applicant may file appropriate applications before the competent authorities which would be considered in accordance with law because it would not be competent for the Adjudicating Authority-NCLT to enter into any such area for granting relaxation, concession or waiver which is wholly within the domain of competent authorities. (h) It is needless to clarify that Section 30(2) (f) of the Code mandates that the Resolution plan should not be against any provisions of the existing law. The resolution applicant, therefore, shall adhere to all the applicable laws for the time being in force. (i) The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RP?) under Sections 30(6) 31(1) of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulation, 2016 (for brevity 'Regulations, 2016) with a principal prayer of accepting the resolution plan approved by the Committee of Creditors (for brevity 'CoC') submitted by JSW Steel Limited who is regarded as 'H1 Resolution Applicant' (for brevity 'JSW'). A further relief has also been sought to grant various concessions as envisaged in the resolution plan and approved by the CoC. These concessions have been duly extracted under List B of Section 1.12 of Part B of the resolution plan. (ii) C.A. No. 286(PB)/2019 filed by the Ex-Management of the Corporate Debtor prays for supply of copies of resolution plan, amendment submitted till date (application was filed on 20.02.2019) for issuance of direction to the Resolution Professional to provide all documents which have been furnished to Members of Committee of Creditors till date along with the valuation report. (iii) The applications filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant documents, data and information in relation to the Corporate Debtor and the ongoing CIR process were provided to potential resolution applicants. The RP claims that he prepared an Information Memorandum in accordance with the provisions of the Code and uploaded the same on the VDR, for ready reference. 4. The RP has further disclosed that in obedience to Regulation 35 of the CIRP Regulations, he appointed two registered valuers, namely (i) Duff and Phelps India Private Limited, and (ii) Price Waterhouse Co. LLP, to ascertain the liquidation value fair value of the Corporate Debtor. 5. Eventually Tata Steel Limited and JSW Steel Limited submitted their resolution plans. Liberty House Petition And Order Passed By The Adjudicating Authority-NCLT 6. The CoC refused even to open the resolution plan submitted by the Liberty House Group Pte. Ltd. (for brevity 'Liberty House'). The reason for rejection of Resolution Plan as conveyed by the RP on 22.02.2018 to the Liberty House was that its resolution plan had been filed after the deadline set-up by CoC which had expired on 08.02.2018. However, the last date conveyed to Liberty House was ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Plan and also record the suggestions, if any, given by the Board of Directors or the 'Operational Creditor' or their representative. While accepting the Resolution Plan, the 'Committee of Creditors' will consider whether the Resolution Applicant(s) have made any provision with regard to other creditors such as 'secured creditors', 'unsecured creditors', 'employees' and 'Government dues'. Though the 'Committee of Creditors' may approve the same with prior permission of this Appellate Tribunal, but not place the same before the Adjudicating Authority and keep it in a sealed cover. It is made clear, as we have passed an interim order of stay, the total period, during which appeal will remain pending before this Appellate Tribunal, will be excluded for the purpose of counting the total period of Corporate Insolvency Resolution Process. The proceedings continued and on 24.05.2018, the Hon'ble Appellate Tribunal issued direction to CoC and stated that the Committee of Creditors and others would follow interim order dated 09.05.2018 and the Committee of Creditors on approval of one or other resolution plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13th August, 2018 improving the 'financial offer' without compromising the basic para-meters of the 'resolution plans' already submitted by them. In such case additional plans will be treated to be the part of their respective 'original resolution plans'. IA. No. 1154 stands disposed of. Dasti service is permitted.' 9. The appeal was finally disposed of by the Hon'ble Appellate Tribunal vide its order dated 04.02.2019. The following directions have been issued by the Hon'ble Appellate Tribunal and the same reads as under:- '47. For the reasons aforesaid, while we are not inclined to interfere with the substantive part of the impugned order dated 23rd April, 2018, set aside part of the order whereby adverse observation has been made against Mr. Mahender Kumar Khandelwal ('Resolution Professional'). 48. The case is remitted to the Adjudicating Authority (National Company Law Tribunal), Principal Bench, New Delhi, for passing appropriate order under Section 31. The 'Resolution Professional' will immediately place the 'approved Resolution Plan' before the Adjudicating Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. It was argued by TSL before the Hon'ble Appellate Tribunal that the 'revised financial offers' cannot be allowed to be submitted even for maximization of the assets of the 'Corporate Debtor' and the Appellate Tribunal vide its order dated 01.08.2018 (as quoted in preceding Para No. 8) observed that the issue was to be decided at the time of disposal of the appeal and left it for that stage. 12. However, instead of submitting an 'improved financial offer', 'TSL' chose to file a statutory appeal before the Hon'ble Supreme Court challenging the order dated 1st August, 2018 passed by the Hon'ble Appellate Tribunal. The 'TSL' simultaneously also approached the Hon'ble Appellate Tribunal on 3rd August, 2018 by way of mentioning and sought extension of the timeline for submission of 'revised financial offers'. The Hon'ble Appellate Tribunal orally observed that TSL' may file an application showing its intention to file a 'revised financial offer' and for modification of the order dated 1st August, 2018. Thereafter the 'TSL' filed an IA. No. 1154 of 2018 on 3rd August, 2018 before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plans submitted by JSW, Liberty House and TSL were evaluated extensively by the CoC with the consultation of representatives of operational creditors, the individual of resolution applicants and the directors of the Corporate Debtor on the evaluation criteria set forth in the Process Document. The plan submitted by 'JSW' emerged as the highest evaluated plan after discussion by CoC on the basis of the evaluation matrix formulated in accordance with Section 25(2) (h) of the Code r/w Regulation 36A of the CIRP Regulations and negotiations were then held with JSW being the highest bidder. The CoC vide its additional affidavit dated 16 August 2018 submitted the scores of the resolution plans to the Appellate Tribunal under a sealed cover. 17. On 03.10.2018 RP received consolidated resolution plan of JSW which was submitted pursuant to negotiation between the 'Core Committee' comprising of small group of lenders formed on the basis of decision taken in the 9th CoC meeting held on 21.02.2018. It was then circulated by him to the members of the CoC on 05.10.2018 and uploaded on the VDR. RP vide its email dated 07.10.2018 along with the notice and agenda, called f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode and CIRP Regulations. 20. The RP states that he has verified the contents of the Approved Resolution Plan and has confirmed that the Approved Resolution Plan comply with the requirements as envisaged under Regulation 38 (as then existed) of the CIRP Regulations in as much the amount due to the Operational Creditors was to be given priority in payment over Financial Creditors. It also claimed compliance with Section 30 of the Code. 21. The RP has further disclosed that in obedience to Regulation 35 of the CIRP Regulations, he appointed two registered valuers, namely (i) Duff and Phelps India Private Limited, and (ii) Price Waterhouse Co. LLP, to ascertain the liquidation value of the Corporate Debtor. Both aforesaid valuers determined the liquidation value of the Corporate Debtor at ₹ 9707 crores and ₹ 9320 crores respectively. As per RP the liquidation value of the Corporate Debtor by averaging the above two values is stated to be ₹ 9,513.63 crores. 22. The RP has then prepared a table at page 17 of the application which contains details relating to various compliances made by him in respect of the Code and CIRP Regulations. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code The Resolution Plan shall provide the term of the plan and its implementation schedule Schedule 2 of the Approved Resolution Plan Section 38(3)(a) of the Code The Resolution Plan shall demonstrate that it addresses the cause of default. Section 3 of Part A of the Approved Resolution Plan under the head Business Plan/Financial Projections Section 38(3)(b) of the Code The Resolution Plan shall be feasible and viable. The CoC in its 18th meeting dated 14 August 2018 considered the resolution plan of JSW Steel and recorded that the resolution plan is feasible and viable. Section 38(3)(c) of the Code The Resolution Plan shall have provisions for its effective implementation. Schedule 2 of the Approved Resolution Plan providing for Steps for Implementation of Resolution Plan Section 38(3)(d) of the Code The Resolution Plan shall have provisions for approvals required and the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of the Supreme Court in the case of Vijay Kumar Jain v. Standard Chartered Bank Ors. (civil appeal no. 8430 of 2018) decided on 31.01.2019. On behalf of the erstwhile promoters and Operational Creditors it has been argued that the copy of the Resolution Plan has not been furnished at any stage, and at least a copy of the resolution plan be furnished at this stage without prejudice to their right with regard to the non-supply at the earlier stages. Before resuming argument today, we put it to learned counsel for the Resolution Professional and Committee of Creditors whether at this stage they would be prepared to furnish a copy of the Resolution plan to the OCs and the erstwhile promoters. Learned counsel for the RP as well as for the Committee of Creditors have requested for a day's time. List on 29th March 2019. 29. In pursuance of the aforesaid order Mr. Srinivasan, learned senior counsel, for the CoC, Mr. Abhinav Vashisht, learned senior counsel for RP and Mr. Rajiv Nayyar, learned senior counsel for JSW-H-1 Applicant showed inclination to supply the copies. However, Mr. Nayyar stated that it was not possible to share the proprie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lan and has highlighted its various features. Learned counsel has drawn our attention to the averments made in para 40 of the application which discloses the liquidation value of the Corporate Debtor on the basis of average reached between the two valuation reports as ₹ 9,513.63 crores. According to the learned counsel Section 29A of the Code has no application. A mandatory disclosure in the form of balance sheet and cash flow statement according to the plan have been made. There is comprehensive certificate issued by the RP in Form-H which shows that the provisions of Section 30 (2) (a) to (e) have been religiously complied with as the resolution plan provide for payment of Insolvency Resolution cost in the manner specified by the Regulation in priority to the repayment of other debts of the Corporate Debtor, repayment of debts of Operational Creditors in such manner as specified by the Regulation which is not to be less than the amount to be paid to the Operational Creditors in the event of liquidation of the Corporate Debtor under Section 53 of the Code. It provides for the management of the affairs of the Corporate Debtor after approval of the resolution plan and its impl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the CoC. Our attention has been drawn to the order passed by the Hon'ble Appellate Tribunal dated 09.05.2018, 24.05.2018, 12.07.2018, 20.07.2018 01.08.2018. Mr. Vashisht emphasised on the directions issued in the order dated 20.07.2018 which are to the following effect:- Taking into consideration the nature of the case and time schedule, we pass the following order: - (a) The 'Committee of Creditors' will call for urgent meeting to take up the 'resolution plan' for discussion and approval. The 'Resolution Professional' after consulting the 'Committee of Creditors' will intimate Mr. Sumant Batra, advocate who is the representative of the 'Operational Creditor' and all the 'Resolution Applicants' and 'suspended Board of Directors' to remain present on the date of consideration of the 'resolution plans'. If necessary, the meeting may continue on consecutive dates taking into consideration the nature and urgency of the case and best out of the three 'resolution plans' which are in consonance of Section 30(2) are viable, feasible and fulfil other matrix may be accepted by the majority vot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw as laid down in Vijay Kumar Jain's case. Learned senior counsel has drawn our attention to various notices issued to the Ex-Promoters inviting them to participate in the meetings of the CoC and a reference has been invited to notice dated 05.06.2018. The notice was issued along with the agenda, notes to agenda, explanatory statement for the 14th meeting of the CoC. It has been pointed out that the notice was being given in accordance with the provisions of Regulations 18, 19 20 and it has been sent to the Ex-Promoters. According to the learned counsel the Hon'ble Appellate Tribunal in its order dated 09.05.2018 after hearing all the stakeholders has passed an order directing the CoC to consider the resolution plan submitted by all the resolution applicants and the CoC was to give reasons for rejecting one or the other resolution plan; and it was also to record suggestions if any given by the Board of Directors or the Operational Creditors or their representatives. It is in the aforesaid context that notice to the suspended board assumes significance which is also evident from the reply filed by the RP to the application being C.A. No. 286(PB)/2019. Our attention has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been pointed out that there was ample opportunity to seek further information from the resolution plan applicant during the CoC meeting held on 11.06.2018 and they failed to provide any suggestion despite all material facts and information about the resolution plan being available with them. He stoutly denied the allegation that no suggestions were sought and attention was drawn to the minutes of the CoC dated 11.06.2018 whereby suggestion were solicitated but not given. The RP also pointed out that the resolution plan is a confidential document and the TATA refused to share their resolution plan with the Ex-Promoters on the ground that there was confidential information and the RP was requested by the e-mail of TATA dated 15.06.2018 to share their presentation only after the presentations from all the resolution applicants were received and that a copy of the presentation made by each of the resolution plan applicants has already been shared with the Directors/Promoters which is adequate information and it was not limited to the details of the financial parameters of each of the resolution plans and there was no impediment for the Directors to provide their suggestions. In the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). I further acknowledge and confirm, that I have been given adequate opportunity to peruse the Resolution Plans and record my suggestions in respect of the same in a satisfactory manner.' 37. On the aforesaid basis Mr. Vashisht has vehemently argued that granting of opportunity to inspect resolution plan, sharing of the presentation of all the resolution plan applicants and inviting them to each meeting of the CoC would adequately satisfy the requirement of law as laid down by Hon'ble the Supreme Court in Vijay Kumar Jain's case (supra). In support of his submission Mr. Vashisht has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Biecco Lawrie Ltd.v. State of West-Bengal [2009] 10 SCC 32. Mr. Vashisht has also argued that even after the furnishing of a copy of the resolution plan without sharing the confidentiality part the counsel for the Ex-Promoters/Directors have not been able to point out any prejudice which they might have suffered on account of non-supply of resolution plan. In that regard reliance has been placed on the judgment of Hon'ble the Supreme Court rendered in the case of Managing Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y erroneous that because of the non-supply of resolution plan as per the judgment in Vijay Kumar Jain's case (supra), the whole resolution process is vitiated. 42. Learned counsel took us through the date-wise list of the events from 26th July, 2017 till 29th March, 2019, and submitted that to understand the ratio decidendi of the aforesaid judgment in Vijay Kumar Jain, and in order to comply with Sections 21 and 24 of the Code, one must give copies of the relevant documents to the erstwhile directors or promoters so that they could effectively participate in the meetings of the CoC, and that Section 24(3)(b) includes therein, the members of the suspended Board of Directors or the partners of the Corporate persons, as the case may be; and (c) operational creditors or their representatives if the amount of the aggregate dues is not less than ten per cent of the debt. 43. Learned counsel submitted that the voting share is allocated to the Financial Creditors and the Operational Creditors do not have right to vote or to participate in the voting process. In the present case, as distinct from the facts of Vijay Kumar Jain, they were aware of everything but he volu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record in order to clarify and modify some of its terms in light of the amendments made on 05.10.2018 in the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. The aforesaid amendment in the resolution plan including the Addendum Letter, was duly approved by the CoC pursuant to the e-voting conducted on 15.10.2018 and 16.10.2018. Mr. Nayar has vehemently opposed that the principles of natural justice have been violated because adequate opportunity was given to the members of suspended Board of Directors as has been clarified by the learned counsel for the RP and CoC. It is because of the aforesaid factual and legal position that the RP has verified the contents of the resolution plan and has authenticated by filing Form-H stating that the requirements envisaged under Section 30 of the Code and Regulation 38 of the CIRP Regulations stand complied with. 47. Mr. Nayar then proceeded to highlight the salient features of the Resolution Plan. JSW is to incorporate or identify a wholly owned subsidiary and to infuse equity of ₹ 8,550 crores into a Special Purpose Vehicle (SPV), which is to be in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the date of approval of the Resolution Plan by this Tribunal. Likewise, the Resolution Plan provides for the payment to Identified Contingent Creditors and any other creditors of 10% of their claims that are contingent, incurred or to be incurred, accrued or to be accrued. All other claims shall stand extinguished upon approval of the Resolution Plan, except the one stated in various clauses. 50. In connection with FIR dated 05.04.2019 registered by CBI against the Corporate Debtor and its Directors under Sections 120B, 420, 468, 471 and 477A of the Indian Penal Code, 1860 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 it has been submitted that the Tribunal may order that all present and future liabilities, claims and penalties that may be imposed on the Corporate Debtor on account of actions/omissions on account of breach of applicable law in respect of the period prior to the effective date should stand extinguished as the allegations of diversion of ₹ 2,348 may significantly increase during the course of investigations. In the absence of any such protection it would go to the root of 'feasibility and viability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... du [2002] 3 SCC 533 and has proceeded to highlight the differences between the two cases.- V.K. Jain Sanjay Singal/Aarti Singal V.K. Jain approached the Adjudicating Authority and sought a copy of the plan, much before the voting on the resolution plan could even commence, and subsequently appealed before Appellate Tribunal and thereafter before the Hon'ble Supreme Court. CoC vote was conducted after the judgment was passed by the Hon'ble Appellate Tribunal but before the order of the Hon'ble Supreme Court. It is in this context that the decision vote (CoC) was set aside. 1. The Promoters chose not to approach the Adjudicating Authority/the Appellate Tribunal/Supreme Court seeking a copy of the Resolution Plan when the Tata Steel Appeal was being heard (when even OCs chose to intervene) and the resolution plans of the various resolution applicants were being discussed. 2. The Promoter Applicants kept quiet and did not ask the RP for a copy of the Resolution Plan until 07.02.2019. If the Promoter Applicants believed that the CoC meetings were vitia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 recorded this fact which was tendered to the Adjudicating Authority during the hearing on 22.04.2019. Despite there being no conflict of interest in V.K Jain, the SC recognised that confidential information contained in the resolution plan needs to be protected and therefore stated that a confidentiality agreement may be entered into. [Para 15 of V.K. Jain] 1. At the hearing dated 05.03.2019 in the present proceedings, a submission was made on behalf of the Applicant Promoters that they be given a copy of the Resolution Plan so that the Promoter Applicants can further improve their settlement proposal if required, on the basis of such Resolution Plan. It is submitted that a confidentiality agreement can only prevent disclosure to a third party, and not use of the same by the person himself. 2. The Hon'ble Adjudicating Authority in its order dated 29.03.2019 in the present proceedings recognised the legitimate interest in proprietary information. 3. The redacted pages of the Resolution Plan do not relate in any manner to the interests of the Promoter Applicants and they contain proprietary/confidenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before this Hon'ble Adjudicating Authority regarding access to the Resolution Plan for the Corporate Debtor and their right to effectively participate in the CoC meetings were conspicuously absent at such CoC meetings. a. Sanjay Singal has only attended 2 CoC meetings, i.e. the 1st meeting and 17th meeting (on 27.07.2018) despite being invited to all CoC meetings by the RP. b. Aarti Singal has not attended any CoC meetings. 6. Further, even when called for inspection of the resolution plan, instead of Sanjay Singal attending himself, he sent a representative to inspect the resolution plan. It is pertinent to note that under the Companies Act, 2013, a director cannot depute a representative to act in lieu of him, other than an alternate director. In this case, Amarjeet Shanna, who attended in place of Sanjay Singal is not an alternate director. Aarti Singal, did not even inspect the resolution plan. 7. Further, the conduct of the Promoter Applicants also clearly shows that they had no interest in discharging any role or responsibility as directors and their only interest, if any, was in their personal capacity as shareho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her, at such time, the authorised representative of the Promoter Applicant No. 1 signed an acknowledgement upon inspecting the Resolution Plan stating their satisfaction. It is submitted that they did not make any reservation which clearly shows that they were satisfied with what was shown to them and found it adequate for their purpose, and were also satisfied that what was not shown to them did not relate to them or their interest at all. If the Resolution Applicant's business plan and financial projections for the Corporate Debtor were not considered relevant by them then, it cannot now be claimed as an afterthought that it is relevant. 4. Further, the Addendum Letter dated 10.10.2018 has been provided to the Promoters in full. 5. The redacted version of the Resolution Plan was also provided on 29.03.2019, containing sections of the Resolution Plan relevant to the erstwhile Board of Directors, in their capacity of being guarantors/shareholders. A note specifying the portions of the Resolution Plan which were redacted and those portions which were not redacted is annexed as Annexure D. 54. Mr. Nayar then submitted that the entire CIR Process inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56. Mr. Mukul Rohatgi, Mr. A.S. Chandhiok Mr. U.K. Chaudhary, all learned Senior Counsels have supported the cause of Ex-Management/Promoters. They have advanced arguments on various dates of hearing which are summed up as under: 1. Learned Senior counsels have vehemently argued that judgment of Hon'ble the Supreme Court in the case of Vijay Kumar Jain (supra) has laid a Rule of Law which requires that a complete copy of the resolution plan upto date must be handed over to the Ex-Management/Promoters which has not been done in the present case. According to the learned counsels the course adopted in Vijay Kumar Jain's case (supra) must also be adopted in the present case as well by firstly issuance of directions to the RP and CoC to furnish a copy of the resolution plan and then send the case back to the CoC to consider the objections of the Ex-Management/Promoters. 2. Learned counsels have highlighted that if the aforesaid course is not followed then the resolution plan approved by CoC in its 19th Meeting held on 10.10.2018 must be declared illegal and the liquidation proceedings must commence. 3. In addition to the aforesaid two submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel has concluded by arguing that the RP should have disclosed to the ex-directors the liquidation and fair value. Learned Counsel has submitted that a notice for meeting held on 04.10.2017 and 02.02.2018 were given but no copies of the report of liquidation value and the fair value have been furnished which were subject matter of discussion in CoC in its first and second meeting. 4. Mr. Chaudhary, learned Senior Counsel has also made additional submissions and has argued that grave prejudice has been caused by non-furnishing of complete copy of the resolution plan. A copy of the resolution plan should have been submitted before it was discussed by the CoC. According to the learned counsel even a copy in pursuance of the order passed by this Tribunal on 29.03.2019 has not been furnished. Learned counsel has maintained that the so-called proprietary information claimed to be confidential is neither protected by the provisions of the Code or any Rules and Regulations. Mr. Chaudhary then points out that the sources of fund is reflected in Schedule-III which apparently have been disclosed to the Tribunal but the copy supplied to the Ex-Director/Promoters is completely obli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly as a necessary corollary it should be given to the operational creditors at this stage also to protect their interests. The counsel referred to and relied upon the judgment of Hon'ble Supreme Court rendered in Vijay Kumar Jain's case. 59. Learned counsel further submitted that the Operational Creditor mentioned at Item No. 374 (Jaldi) in the list has been wrongly shown as a Contingent Creditor and would be paid only 10% whereas the others are being paid 50%, particularly when this Operational Creditor stands at a better footing because his claim has been duly verified and admitted. It is submitted that the RP has admitted its claim at ₹ 150 crores then why should it be put as an Identified Operational Creditor. It was submitted by the learned counsel that this Creditor may not even get 10% because there is a cap of ₹ 35 crores. Learned counsel further submits that the RP cannot be permitted to term them as contingent creditor particularly when it is an adjudicated claim culminated into an award in its favour. Whereas in the case of other Operational Creditors there is no adjudication and their claims have simply been admitted by the RP. Learned Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meeting dated 27.07.2018, along with the agenda and explanatory notes, to the CoC and the members of the suspended board of directors. 26.07.2018 Submission of improved financial proposal by JSW Steel. All other terms of the resolution plan submitted on 08.02.2018 by JSW Steel remained the same. Two members of the suspended board of directors, including Sanjay Singal (through bis authorised representative) inspected the resolution plans at the office of the legal counsel for the RP, and provided an acknowledgment to the RP that he had been given adequate opportunity to inspect the resolution plan and provide his suggestions in a satisfactory manner. No inspection was undertaken by Aarti Singal. (CoC's compilation, pp. 194, 206) 27.07.2018 CoC at its meeting decides to invite improved financial proposals from the three resolution applicants until 31.07.2018. Such meeting was attended by Sanjay Singal's representative, RP Goyal and Ram Naresh Yadav (through his representative). At such meetings, suggestions were given by the members of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from Resolution Applicant: (d) With regard to enforcement of personal and corporate guarantees, the Committee wanted to be very clear that in their Resolution Plan, the financial creditors shall continue to have the right to recover from personal and corporate guarantees which were executed by existing promoters. It was further stated that the Committee duly noted the safeguard that JSW seeks and they are ready to provide for subrogation rights to be extinguished in the same clause ... Further, Resolution Applicant clarified that: (CoC's compilation, pg. 431-432) (c) With regard to personal guarantee based on the request of the creditors, the representative of JSW stated that they are fine with it, however they also emphasized that it is very important that subrogation is protected properly which they have mentioned in the relief section and requested the recognition of extinguishment of subrogation, reimbursement, indemnity rights, to which the legal counsel of COC responded that it can be brought into the main part of the Resolution Plan. Thus, the suspended board of directors present at the CoC meeting raised no objections including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Hardev Chand Sharma present from the suspended board of directors. 11.10.2018 Addendum Letter was circulated by the RP by e-mail to the suspended board of directors. (CoC's compilation, pp. 518-519) No objection raised to the Addendum Letter. 63. We may proceed to discuss the issues: RE-SUPPLY OF A COPY OF RESOLUTION PLAN TO THE ERSTWHILE MEMBERS OF BOARD OF DIRECTORS 64. The first and foremost issue raised before us pertains to supply of a copy of a resolution plan to the erstwhile members of Board of Directors. In order to find out whether substantial compliance has been made of this requirement as per the law laid down in Vijay Kumar Jain's case (supra) or not. In that few facts may first be seen. 65. In accordance with the provisions of Section 24(2) the RP is obliged to conduct all meetings of the CoC. The RP is a non-partisan and independent umpire. It is further clear that he is obligated to give notice of each meeting of the CoC to the Members of Suspended Board of Directors [See Section 24(3)(b)]. The provision of Sub-Section 4 of Section 24 further clarify that su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Email dated 14.4.2018 17.4.2018 Present Mr. Hardev Chand Verma 12. Email dated 24.4.2018 27.4.2018 Absent 13. Email dated 25.5.2018 29.5.2018 Absent 14. Email dated 6.6.2018 11.6.2018 Present Ravi Prakash Goyal Mr. Hardev Chand Verma through representative MR. Arun Kumar Agarwal Mr. Dinesh Kumar Yadav through representative Mr. V.P. Chhabra 15. Email dated 6.7.2018 9.7.2018 Present Mr. Ravi Prakash Goyal Mr. Ram Naresh Yadav through representative MR. Arun Kumar Agarwal 16. Email dated 11.7.2018 16.7.2018 Present Mr. Ram Naresh Yadav through representative MR. Arun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66. A perusal of the aforesaid table shows that the erstwhile members of Board of Directors attended 1st, 6th, 7th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 22nd, 23rd and 24th meetings. 67. In 15th meeting of the CoC held on 09.07.2018 a resolution plan submitted by Tata Steel Limited was considered as the highest evaluated compliant plan and the voting on that plan was deferred. In the 16th meeting of the CoC held on 16.07.2018 the voting for the approval was allowed to be conducted till 18.07.2018 and the resolution plan by Liberty House Group was also presented in pursuance of directions issued by this Tribunal in the order dated 23.04.2018 and further order of Hon'ble NCLAT. 68. However, in the 17th meeting held on 27.07.2018 the resolution plan of JSW also came up for consideration. In the minutes of 17th meeting of the CoC it has been recorded that the details of the resolution plans were duly disclosed to the Members of the CoC, Operational Creditors and the Suspended Board of the Corporate Debtor and the relevant portion of the Minutes reads as under: The Legal Counsel of the RP further stated that in the evening of 26th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shares, and how shall they be redeemed. The Legal Counsel of the RP requested the representative of suspended BoD that since these queries are specific to the RA and it is not to be disclosed to other RAs, they need be put to the specific RA. He further requested them to send an email comprising their observations on all the Resolution Plans. The Representatives of suspended BoD took note of the same. He further drew attention of RP to the Supreme Court Order dated 18th July 2018 and read out the order. (emphasis added) 71. A perusal of the aforesaid minutes' shows that the contents of the resolution plan were shared with the erstwhile members of Board of Directors without sharing the confidential information and they have participated by making specific observations. The RP has granted them full opportunity to send a query with respect to any of the resolution plan to the Resolution Plan Applicants. The RP also shared his concern that the information was not to be shared with the other Resolution Plan Applicants obviously because they were competitors with one and another. 72. Likewise, the representatives of the Operational Creditors made enquirie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board of Directors and Operational Creditors apart from Financial Creditors. It is not possible to quote each and every debate but one can feel satisfy that it was a transparent process. It is also evident that the erstwhile members of Board of Directors did not ask for a copy of the resolution plan and appears to be satisfied with the inspection of resolution plan and the details shared with them. However, the confidentiality with regard to raising of the finances, were not shared. 74. In the 18th meeting of CoC held on 14.08.2018 only representatives of Mr. Ram Naresh Yadav and Mr. Hardev Chand Verma were present. On behalf of Jaldi Overseas, Mr. Ravi Hamirbasiya was present and there were four representative of JSW and Liberty House Group. There were many representatives of Tata Steel Limited. The legal counsel of the RP apprised the Members that the offer of JSW was an addendum to the resolution plan dated 08.02.2018 and he read out clause 2.2 which has been reproduced in the minutes of meeting. The concern of the Operational Creditor was also noted at Item No. 10 which records the reply of the RP. A perusal of the minutes would show that thread bare discussion took p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs is the amount prescribed in law and as per the requirement of the Code, it is the liquidation value that is required to be given to the operational creditors and that the rest of the amount is not the 'amount due' rather it is an incremental amount offered in view of the value maximization. He further stated that 'amount due' is the amount that can be claimed legally to which the representative of operational creditor responded that as per their understanding, the amount due which is referred as the liquidation value by the representative of JSW is as per Section 30(2)(b) and the amendment has been enforced in Regulation 38 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations which provides for 'amount due' under the Resolution Plan and hence as per the Resolution Plan if INR 350 Crores is being provided to operational creditors then such an amount has to be paid in priority to payment of financial creditors. The representative of JSW further stated that if Regulation 38 of CIRP Regulation is read as interpreted by the representative of operational creditor, then there will not be any incentive for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e operational creditors, then they will certainly adhere to such directions. The representative of operational creditor stated that the view of the CoC must be followed while negotiating on the Resolution Plan with the representatives of JSW and that the operational creditor will raise their objection before the Adjudicating Authority only when their views are not taken into consideration by the CoC. The matter was deliberated at length. Subsequently, the legal counsel of CoC stated that Section 30(2) of the Code talks about the manner of payment and not the quantum of payment and concluded that the CoC is taking a dual view in this aspect and is not taking any antagonistic view towards either party. The representative of operational creditor stated that contingent claims should not have any cap and it should be paid as and when it crystallizes because it is not being dealt with in the moratorium period, hence putting a cap on it will not be fair solution at this stage to which the representative of JSW responded that there is very limited or no room to negotiate any further unless it involves a matter of law since they have taken a holistic view of the Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Resolution Plan. There were no further comments from the members on the same and the said Resolution with necessary modifications was put to vote. The Chairman asked the members to vote on the above resolution through e-voting facility as per the instructions for e-voting. The Committee requested that Saturday and Sunday, being non-working days, the e-voting be opened on October 15, 2018 (Monday). It was agreed by the Committee of Creditors hence, on the requests received from the members, the Chairman concluded that e-voting will be opened from 05:00 PM on Monday, October 15, 2018 till 5:00 PM on Tuesday, October 16, 2018.' 77. In the 20th meeting of CoC held on 03.01.2019 again few erstwhile members of Board of Directors were present namely Mr. Ravi Prakash Goyal, representatives of Mr. Ram Naresh Yadav and Mr. Hardev Chand Verma in person. The CoC under Item No. 8 took note of the update on the CIRP Proceeding pending before Hon'ble NCLAT in the case of Tata Steel Ltd. (supra). observing that the order was reserved on 20.12.2018 and also noted that erstwhile member of Board of Directors, Mr. Sanjay Singal has filed a petition before Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CoC (given its recent decisions in the case of Binani Cement and others), subject to any appeal being filed by Tata, the Resolution Plan may be submitted to Hon'ble NCLT, however, whether Hon'ble NCLT will hear their plea at that point of time is uncertain in light of the Supreme Court direction that Hon'ble NCLT will not finalize any bids without the leave of the Court. In the matter before Supreme Court, it has been tagged with all constitutional challenges to IBC but the petition of Sanjay Singal was the most argued upon. The same has been argued for two and a half days by Mr. Mukul Rohatgi and Mr. K.V. Vishwanathan, Senior Advocates and the other petitioners argued for half a day, subsequently, the Attorney General has commenced his reply and the next date of hearing in the matter is January 08, 2019. This matter has been taken up on priority by the Hon'ble Supreme Court so the hearings will continue on day-to-day basis. The Attorney General is expected to take around two and a half days subsequent to which, the other respondents will be making their submissions. The hearing in this matter is expected to be completed by the second week of January, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the PBG. The concluding para on the aforesaid agenda item reads thus: The representative of IDBI asked the Legal Counsel of RP on the further course of action, the Legal Counsel of RP responded that the next step would be first to receive the performance guarantee from JSW, the CoC will then issue the Lol post which the RP would file an application for the approval of the Resolution plan with the Adjudicating Authority. The Legal Counsel of RP further stated that they would try to file by Tuesday i.e. 12th February, 2019, subject to the receipt of the Performance Bank Guarantee. 80. Under Item No. 9 (iii) the CoC also took notice of the letter received from Mr. Sanjay Singal and Ms. Aarti Singal dated 07.02.2019 in which they have demanded a copy of the resolution plan and have alleged that they have been prevented from effective participation in the meetings of the CoC. The legal counsel of the RP clarified the aforesaid letter by apprising the CoC as under: The Legal Counsel of RP clarified that in the month of July, 2018, the RP made the Resolution Plans of all the 3 (Three) Resolution Applicants available to the Suspended Board of Directors and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding before this Tribunal and the factum of filing application under Section 31 of the Code seeking approval of the resolution plan approved by the CoC submitted by JSW. It also took notice of the treatment given to Operational Creditors by dividing them into two categories namely Non-Contingent Operational Creditors who were to get 50% of their claim with a cap of INR 350 Crores and Contingent Operational Creditors who were to get 10% payment of their claims subject to maximum of INR 35 Crores. 83. In the 23rd meeting of CoC held on 23.05.2019 Ms. Aarti Singal and Mr. Dinesh Kumar Yadav were absent and other were represented through their representatives or present in person. Under agenda Item No. 7 it was noted that Mr. R.P. Goyal, erstwhile member of Board of Directors filed a CWP No. 10325/2019 in Punjab and Haryana High Court and vide order dated 18.04.2019 directions have been issued to this Tribunal to decide the issue concerning supply of resolution plan first as a preliminary issue along with certain other directions. 84. The 24th meeting of CoC held on 24.07.2019 is the last meeting where the proceedings under agenda Item No. 6 pending before this Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led without a demur and even suggestions have been given by active participation in the CoC as has been noticed in the preceding paras while reading the various minutes of the meetings. 87. It has also come on record that Mr. Sanjay Singal and others filed Writ Petition (Civil) No. 822/2018 which has been decided along with bunch of other petitions on 25.01.2019 by Hon'ble the Supreme Court and the challenge to Section 29A of the Code to its constitutional validity has been rejected. There was no application made for supply of a copy of resolution plan either before this Tribunal or before any other Fora. A prayer could have been made before Hon'ble the Supreme Court in the Writ Petition (C) No. 822/2018 decided on 25.01.2019. Even that has not been done. We may also observe that such a course preferred by the erstwhile members of Board of Directors would amount to relinquishment of their right. In that regard we may place reliance on the observations made by Hon'ble the Supreme Court in State Bank of India v. Gracure Pharmaceutical Ltd. [2014] 3 SCC 595 and hold that if the plaintiff omits to sue or intentionally relinquishes any portion of his claim, it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) was pronounced on 31.01.2019. Therefore, we find that it is like having your cake and eat it too. Moreover, resolution plan was supplied to them also by Court order dated 29.03.2019. 90. We are further of the view that even the rules of natural justice are not be allowed to be exploited as a purely technical weapon to undo a decision which does not in reality cause substantial injustice. Such a relief can be refused if it is shown that no prejudice as a result of non-supply of a copy of the resolution plan has been caused. Once the underline purpose has been achieved by permitting access to the resolution plan and also furnishing a copy at the time of hearing vide order dated 21.03.2019 then by giving another copy would not result in any change. All that could have been said by the Ex-Directors is placed on record as is evident from the perusal of minutes of various meetings of the CoC's. It is well settled that the Courts do not pass order which result in futile exercise. In that regard we may place reliance on the observations made by Hon'ble the Supreme Court in S.L. Kapoor v. Jagmohan, [1980] 4 SCC 379 and Managing Director ECIL Hyderabad (supra). Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of Board of Directors have remained absent as is evident from a bare glance on the table extracted above. The process undertaken by the RP and minutes of meetings of CoC conducted by him do not leave any manner of doubt that the process is fair and transparent. Therefore, the complete access given to the resolution plan cannot be regarded as inferior to providing a copy of the resolution plan itself. 92. We may also take notice of the submissions made by Mr. Rajiv Nayar, learned Senior Counsel, Mr. Abhinav Vashisht Mr. Ramji Srinivasan, learned Senior Counsels on behalf of the Resolution Plan Applicant, Resolution Professional and CoC. They have argued that there is substantial compliance and law laid down by Hon'ble the Supreme Court in the judgment in Vijay Kumar Jain's case (supra) would stand satisfied. It is not that supply of a copy alone would satisfy the requirement of law. We are inclined to accept the submission that once the resolution plan has been shown to them and they have filed their certificate of satisfaction then there is no escape from the principle of substantial compliance which in this case stands satisfied. In that regard we may place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the Ex-Directors/Promoters of the Corporate Debtor. CA NO. 327(PB)/2019 96. The erstwhile Board of Directors filed CA No. 327(PB)/2019 through Mr. Sanjay Singhal and Mrs. Aarti Singhal under Section 60(5) read with Section 12A of the Code and a direction has been sought to the resolution professional to place the settlement proposal dated 20.02.2019 made by them before the CoC for their consideration/acceptance and to terminate the Corporate Insolvency Resolution Process. 97. Reply to the application has already been filed by the Resolution Applicant-JSW Steel Ltd. 98. Once the application has been rejected by the Punjab National Bank then it could not have sought withdrawal of the Insolvency Proceeding initiated under Section 7 with prior approval of 90 % or more of the voting share of financial creditor. We are further of the view that making of offer by Mr. Sanjay Singhal and Mrs. Aarti Singhal and the rejection of the same by the Punjab National Bank is a step prior to filing of an application before the Resolution Professional for withdrawal in Form-FA as is provided under Regulation 30A of the CIRP Regulations, 2016. The second prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 101. On merit also the requirements of Regulation 33A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2018 remains unfulfilled. Regulation 30A (1) in categorical terms states that an application for withdrawal under Section 12A has to be filed before the issuance of invitation for expression of interest under Regulation 36A. On facts it is evident that expression of interest in this case were invited on 21.09.2017 and the last date was 06.10.2017. Obviously, the withdrawal of the Corporate Insolvency Resolution Process was sought on 29.01.2019 and 20.02.2019. Again, it was a desperate attempt on the part of the erstwhile Members of the Board of Directors to delay the conclusion of these proceedings. Therefore, we do not find any substance in the application which is liable to be dismissed. Re-Claims of Operational Creditors 102. Hon'ble NCLAT sent the matter back to the Adjudicating Authority vide order dated 04.02.2019. In paras 48 to 50 the parameters for examination of the resolution plan have been laid down which read thus: 48. The case is remitted to the Adjudicating Authority (N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtor's assets from further dilution and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skill, resuscitate the corporate debtor to achieve all these ends. 105. It is also pertinent to notice that in the admission order dated 26.07.2017 we have noted then on 09.07.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 350 crores in proportion to their admitted claims. The total admitted claim of operational creditors amounts to ₹ 733.76 crores to the payment to such operational creditor is to be made within a period of 12 months from the effective date thus the resolution plan provide for recovery of 47.69 % to the operational creditor under Section 2.2 (f) executive summary of the resolution plan. 108. The Resolution Plan provides for the payment of government dues and taxes that are contingent as on the Insolvency Commencement Date, i.e. 26.07.2017 and are crystallized within a period of 2 years from the date of approval of the Resolution Plan by the CoC to the extent of 10% of the principal amount (excluding any interest and penalty) subject to a maximum of ₹ 150 crores. The same shall be paid within a period of 90 days from the expiry of 2 years from the date of approval of the Resolution Plan by this Hon'ble Adjudicating Authority. To the extent government dues and taxes are crystallized as of the Insolvency Commencement Date, they are paid as part of the payment to operational creditors above. [See Section 2.2 (g), Executive Summary read with Section 1.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 8 of Jaldhi's reply) their consent has been expressed to attend the meeting of the CoC on behalf of the operational creditors. The argument raised on behalf of Jaldhi that it is sui generis class of creditor and their claims be kept outside the insolvency resolution process is not borne out of the pleadings. Even the definition of 'operational debt' in Section 5(21) is very wide and it means a claim in respect of provisions of Goods or Services. The definition of expression 'claim' in Section 3 (6) is also very wide to cover a right to payment and takes into its sweep a right to payment whether or not such right is disputed or undisputed or reduce to judgments etc. The definition of word 'operational creditor' under Section 5(20) is also crystal clear that and operational creditor is a person to whom an operational debt is owed. If we read all the aforesaid definitions co-jointly it would include the creditor whose claims are contingent. 110. We are also of the view that Regulation 13 of the CIRP Regulations require an RP to verify every claim thereby including within its ambit contingent claims as well in a case where the amount claimed by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stributed in accordance with the order of priority in sub-section (1) of section 53, whichever is higher, and provides for the payment of debts of financial creditors, who do not vote in favour of the resolution plan, in such manner as may be specified by the Board, which shall not be less than the amount to be paid to such creditors in accordance with sub-section (1) of section 53 in the event of a liquidation of the corporate debtor. Explanation 1.- For the removal of doubts, it is hereby clarified that a distribution in accordance with the provisions of this clause shall be fair and equitable to such creditors. Explanation 2.- For the purposes of this clause, it is hereby declared that on and from the date of commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2019, the provisions of this clause shall also apply to the corporate insolvency resolution process of a corporate debtor- (i) where a resolution plan has not been approved or rejected by the Adjudicating Authority; (ii) where an appeal has been preferred under section 61 or section 62 or such an appeal is not time barred under any provision of law for the time being in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utes is provided to all the stakeholders. It is in the aforesaid background that Hon'ble the Supreme Court made the following observations in para 73 of the judgment rendered in the case of K. Sashidhar (supra) which read as under:- '73....The dispensation provided in the I B Code is entirely different. In terms of Section 30 of the I B Code, the decision is taken collectively after due negotiations between the financial creditors who are constituents of the CoC and they express their opinion on the proposed resolution plan in the form of votes, as per their voting share. In the meeting of CoC, finally proceed to exercise their option (business/commercial decision) to approve or not to approve the proposed resolution plan. In such a case, non-recording of reasons would not per se vitiate the collective decision of the financial creditors. The legislature has not envisaged challenge to the commercial/business decision of the financial creditors taken collectively or for that matter their individual opinion, as the case may be, on this count.' 113. The other submission shall also not detain us that liquidation value and fair value was not disclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolution Plan, which has been approved, may well include provisions as to payments to be made by such guarantor. This is perhaps the reason that Annexure VI(e) to Form 6 contained in the Rules and Regulation 36(2) referred to above, require information as to personal guarantees that have been given in relation to the debts of the corporate debtor. Far from supporting the stand of the Respondents, it is clear that in point of fact, Section 31 is one more factor in favour of a personal guarantor having to pay for debts due without any moratorium applying to save him. 116. Therefore, objections raised on the time of hearing would not stand judicial scrutiny and is hereby rejected. 117. One more objection which was raised during the hearing was that the resolution plan takes away the statutory right of subrogation which is available to a guarantor and the same reads as under:- A resolution plan can modify the rights of creditor or guarantor against the corporate in terms of the response stated above. Further, the right of subrogation of a surety is a step in right, which results in the surety stepping in the shoes of the creditor against the principal borr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary to quantify such claims yet they may be kept under a category different than the other claims. It is also evident that the Code has not made explicit references to contingent or un-liquidated claims which can however be inferred from the reading of Sections 3(6), 3(11), 5(20) 5(21) of the Code. As a matter of fact, the Code seeks to amend Section 343 of the Companies Act whereby the Liquidator in case of a company is entitled to settle contingent claims. Therefore, we are of the considered view that there is no violation of any law or hostile treatment given to the contingent creditors which constitute a category distinct from the Operational Creditors. Other Issues 121. The prayer for grant of various concessions extracted under List 'B' of Section 1.2 of Part B of the resolution plan cannot be granted in a blanket manner. In that regard we follow the law laid down in the case of State Bank of India v. Bhushan Energy Ltd. [C.A. No. 929 (PB) of 2018, C.P. (IB) No. 530 (PB)/2017, dated 30-5-2019]. Post hearing facts: 122. In order to put the record straight we bring on record few post hearing facts. After detailed hearing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to direct convening of the meeting of CoC afresh as a preliminary issue before considering any other application or before approval of the Resolution plan. It was also directed that in that regard the Tribunal was to be guided by the judgment of Hon'ble the Supreme Court in Vijay Kumar Jain's case (supra) and was not to take into consideration any other past practice, procedure, directions, judgments or orders of Adjudicating Authority/NCLAT which are in contravention of the directions of the Hon'ble Supreme Court in the matter of Vijay Kumar Jain's case (supra). The direction to the Adjudicating Authority-NCLT went to the extent of holding that preliminary issue was to be kept inoperative for two weeks to enable the affected parties to avail the appellate remedies in accordance with law. 124. Keeping in view the aforesaid directions and after the dismissal of the Special Leave Petition the directions issued by the Division Bench of Hon'ble Punjab and Haryana High Court became binding on the Tribunal and the process of rendering judgment on those lines commenced. 125. But before it could be done the CoC challenged the judgment of Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the pronouncement of the order. We have added this unusual para to this order with the object of showing how desperate and frustrated the Ex-Management/Promoters are and how they are making efforts to cause delay. We do not say any further on this aspect. 128. As a sequel of the above discussion, CA No. 254(PB)/2019 is allowed and the resolution plan of JSW-H1 Resolution Plan Applicant is accepted. The objections raised by the Ex-Directors cum Promoters of the Corporate Debtor and Operational Creditors are hereby over-ruled. However, the acceptance and approval of the resolution plan shall be subject to the following; (a) The amount due to the operational creditors under the resolution plan must be paid in accordance with the amended Section 30 (2) of the Code as the amendment expressly provides that it would be applicable to all applications pending for approval of the resolution plan like the one in hand. (b) C.A. No. 327(PB)/2019 with a prayer for placing the settlement proposal dated 20.02.2019 before the CoC is hereby rejected. (c) CA No. 286(PB)/2019 filed by the erstwhile directors Mr. Sanjay Singhal and Mrs. Aarti Singhal seeking copie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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