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2019 (3) TMI 1749

..... td., to ensure payment of dues of the applicant to determine the eligibility of the present resolution applicant - HELD THAT:- As a matter of record that in earlier phases of proceedings, the M/s. Karur Vysya Bank Ltd., did not approach to the resolution professional and the committee of creditors by lodging its claim with regard to M/s. KSS Metals P. Ltd., which is stated to be a related party of the present resolution applicant, M/s. ArcelorMittal India P. Ltd. - In compliance with the decision in the case of ARCELORMITTAL INDIA PRIVATE LIMITED VERSUS SATISH KUMAR GUPTA & ORS. [2018 (10) TMI 312 - SUPREME COURT] and in order to complete the assigned task in a time bound manner, the RP and CoC were required to consider the eligibility of the resolution applicants, whether the later has paid off its NPA within two weeks from the date of receipt of the hon'ble Supreme Court's judgment. The RP and CoC had also fixed cut-off date/ deadline for filing such information/claims before it. Since the record of other pending CIRP proceedings in relating to M/s. KSS Patrons P. Ltd., is not made available in the present case, neither it can be ascertained nor appropriate for this A .....

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..... olvency and Bankruptcy Code, 2016, till the final disposal of the instant interlocutory application. (iii) To pass directions to the committee of creditors to provide a copy of resolution plan of ArcelorMittal along with the copy of minutes of meeting approving the resolution plan, to the applicant." 3. The averments made by the applicant in these application, seeking for abovementioned reliefs which seems to be common are stated as under. 4. The applicant is a financial creditor of M/s. KSS Patrons P. Ltd., M/s. KSS Patrons P. Ltd., is liable to pay outstanding of a principal amount to the applicant to the tune of ₹ 3,43,96,866 as per the amount due to the applicant in terms of term-loan granted by the applicant to M/s. KSS Patron P. Ltd. 5. It is also stated that M/s. KSS Patron P. Ltd., executed all necessary documents and necessary agreements for availing such loan facilities and provided a corporate guarantee. 6. However, during the course of business, M/s. KSS Patrons Engineering and Construction Ltd., defaulted in repayment of loans and failed to regularize the accounts. Thereafter, the applicant issued a recall notice to the said company on March 22, 2018 and the .....

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..... eligible as a resolution applicant. 10. Hence, the above stated relief are being sought for in the present application. 11. By opposing these applications, the State Bank of India, being a lead bank of the CoC has filed its reply in I. A. No. 57 of 2019 opposing the applications contending that the applicant filed its claim only on October 19, 2018 when a public notice of such process was issued immediately after the commencement of CIRP in August, 2017, which appears to be impeding to the resolution process of the corporate debtor. The present application has been filed at belated stage of three months of the filing of belated claim before the resolution professional of M/s. KSS Patron Ltd. Hence, as per the present respondent/CoC, no case is made out by the applicant for grant of any relief. Hence, the present application is liable to be rejected. 12. In support of its contentions, the CoC has emphasized this facts that under the mandate of the hon'ble Supreme Court's judgment in the above stated matter, the resolution applicant was required to clear over due amount in respect of Uttam Galva Steel Ltd., and KSS Patron P. Ltd., latest by October 18, 2018 while the present .....

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..... s a matter of record that in the first round of litigation, the main I. B. Petition C. P. (I. B.) No. 39/7/NCLT/AHM/2017 and C. P. (I. B.) No. 40/7/ NCLT/AHM/2017 hearings were already concluded by admitting the petition by this Adjudicating Authority by its order dated August 2, 2017 of litigation, the nature and scope of the present proceedings is pertains to consider the application filed by the resolution professional for approval of a resolution plan submitted before this Tribunal under the provisions of section 31 of the Insolvency and Bankruptcy Code, 2016 which is now pending as I. A. No. 431 of 2018, as has been filed pursuant to a mandate issued by the hon'ble Supreme Court in the matter of ArcelorMittal India P. Ltd. v. Satish Kumar Gupta [2018] 211 Comp Cas 369 (SC) decided on October 4, 2018 wherein, their Lordships have pleased to hold and observe as follows (page 480) : "Since it is clear that both sets of resolution plans that were sub mitted to the resolution professional, even on April 2, 2018, are hit by section 29A(c), and since the proviso to section 29A(c) will not apply as the corporate debtors related to AMIPL and Numetal have not paid off their res .....

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..... g such information/claims before it. 22. Thereafter, the resolution applicant is reported to have paid off its NPA as quantified by the RP and CoC of the present corporate debtor-company. 23. Therefore, it is a matter of record that M/s. Karur Vysya Bank filed its schedule Form C on October 19, 2018 before RP of M/s. KSS Patron P. Ltd., for making a claim of ₹ 3,74,31,533 and thereafter only informed to the present RP. 24. While the hon'ble Supreme Court in its above said judgment ; granted only two weeks of time to the resolution applicant for making payment from the date of receipt a copy of judgment hence, admittedly by such date, M/s. Karur Vysya Bank did not lodged its claim before the RP of the present corporate debtor-company because, as per record, the present applicant wrote a letter to Mr. Satish Kumar Gupta, RP only on October 19, 2018 and November 1, 2018 by informing that debts of ₹ 3,43,96,866 crores are not paid by the corporate debtor, M/s. KSS Patron P. Ltd., to which, the present resolution applicant is stated to be a guarantor, thus is related party. 25. The applicant's such communication is evident of such undisputed position in the matter th .....

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..... part to the present CIRP proceedings nor it is a creditor of the corporate debtor-company. Hence, such prayer is also liable to be disallowed being devoid of merits. 29. In the light of above given facts of the case, we are of the view that the present I. A. Applications Nos. 56 and 57 are not tenable at this stage in such the time-bound proceeding and the hearing wherein has already been concluded. 30. Further other prayer of the applicant seeking for stay of the proceeding pertaining to consideration and approval of the resolution plan cannot be acceded to ; due to the directions issued by the hon'ble National Company Law Appellate Tribunal to hear the matter and to conclude the hearing in time bound manner. Hence, the hearing was made on day to day basis and now are concluded. Hence such prayer must fail. 31. Further, the present applicant has sought for a copy of the resolution plan in respect of present corporate debtor-company. However, in our view the applicant cannot be termed as financial creditor to the present corporate debtor, M/s. Essar Steel India Ltd. Hence, it is not entitled to claim a copy of the resolution plan nor its debts reach figures of 10 per cent. of t .....

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