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2020 (3) TMI 1104

..... with section 30(2) of the IBC read with regulation 38 of the CIRP Regulations. The provision regarding waiver of any liability accruing in respect of minimum alternate tax (MAT) kept in resolution plan originally has been deleted in modified plan. The term of plan is increased from three years to seven years without affecting the feasibility and viability of the plan. The resolution professional Mr. Vikram Bajaj will be the monitoring and supervising agency for implementation of the plan. The remuneration of the monitoring agency shall be ₹ 1,50,000 plus taxes and out of pocket expenses at actual - The corporate debtor will stand amalgamated with the resolution applicant as per the scheme of amalgamation. It is stated that the scheme of amalgamation between Swadisht Oils Pvt. Ltd. (transferor company) and Rajasthan Liquors Ltd. (transferee company) as given in annexure B to modified resolution plan at pages 153-168 is to facilitate the insolvency resolution of transferor company and shall enable continuity of operations of SOPL and enhance its viability, apart from saving employment of existing employees and works. The modified resolution plan submitted by "Atyant Capita .....

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..... ority challenging the said rejection of claim and the same finally resulted in an order dated November 27, 2017-Export-Import Bank of India v. JEKPL P. Ltd. [2018] 210 Comp Cas 115 (NCLT) passed by this Adjudicating Authority whereby the decision of the erstwhile resolution professional rejecting the claim of Exim Bank as a financial creditor of the corporate debtor was upheld. The said order of this Adjudicating Authority dated November 27, 2017 was challenged by Exim Bank before the hon'ble National Company Law Appellate Tribunal Company Appeal (AT) (Insolvency) No. 304 of 2017-Export- Import Bank of India v. Resolution Professional, JEKPL P. Ltd. [2018] 3 Comp Cas-OL 594 (NCLAT). 5. During the pendency of the above appeal, the resolution plan submitted by M/s. Atyant Capital was approved by this Adjudicating Authority vide order dated December 15, 2017. However, on account of the pendency of the appeal of Exim Bank, the hon'ble National Company Law Appellate Tribunal vide order dated February 1, 2018 in Company Appeal (AT) (Insolvency) No. 304 of 2017 directed this Adjudicating Authority to not give effect to the resolution plan approved vide order dated December 15, 201 .....

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..... ion and to evaluate the existing resolution applicants, i. e., M/s. Atyant Capital and Hindustan Oil Exploration Co. Limited (HOEC). 10. At the said meeting, on account of the fact that the CIR process of the corporate debtor has been marred by litigations and the fact that the hon'ble National Company Law Appellate Tribunal has directed the "reconstituted" committee of creditors to consider/re-consider the resolution plans of existing resolution applicants, and while the statutorily prescribed period of the CIR process has already expired, the members of the committee of creditors inter alia decided to authorize the resolution professional to file an application before the hon'ble Adjudicating Authority for seeking exclusion of time period consumed in litigation and another application before the hon'ble National Company Law Appellate Tribunal seeking clarification of the order dated August, 14 2018 passed in Company Appeal No. 304 of 2017 with respect to consideration/reconsideration of plans and if resolution applicants could submit revised resolution plans to maximize the value of assets. A copy of minutes of meeting of 17th CoC meeting are annexed herewit .....

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..... ants and proceeded with the outbidding process as mentioned in the process document in an attempt to achieve value maximization of the corporate debtor without prejudice to its rights under the process document. As per the evaluation carried out by the CoC, Atyant Capital was declared as the H1 bidder and HOEC was declared as the 112 bidder. 16. Thereafter the H2 bidder was given the opportunity to outbid the H1 bidder, in accordance with the process for outbidding stipulated under the process document. The H2 bidder, i. e., HOEC declined to outbid the H1 bidder. Consequently, H1 bidder, i. e., Atyant Capital was declared the highest evaluated resolution applicant. However, on the request of the CoC, Atyant Capital reconsidered and submitted a revised financial proposal with an improvement of ₹ 6 crores as its revised financial offer by way of letter dated June 17, 2019. The CoC however indicated that the value should be improved further in view of the past financial offers sub- mitted by Atyant Capital and the requirement in the process document and requested Atyant Capital to come back with a better offer in 2 days time, i. e., by June 19, 2019. A copy of minutes of 20th Co .....

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..... with regulation 38 of the CIRP Regulations. In accordance with regulation 39(4) of the CIRP Regulations, the RP vide his affidavit certified that : (a) The contents of the improved resolution plan submitted by "Atyant Capital India Fund-1" meet all the requirements of the IBC and the Regulations thereunder ; and (b) The improved resolution plan submitted by "Atyant Capital India Fund-1" has been approved by the committee of creditors by 100 per cent. voting share under section 30(4) of the IBC in its meeting. (c) Further, resolution professional has submitted compliance certi ficate in Form-H, inter alia, certifying eligibility of resolution applicant under section 29A of the Code and feasibility and viability of modified resolution. 23. Sub-section (2) of section 30 of the Code reads as under : "The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan- (a) Provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the repayment of other debts of the corporate debtor ; (b) Provides for the repayment of the debts of operational cre ditors in such .....

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..... payment of IRP cost in priority to any other creditor. Sources of funds.-The sources of funds for meeting the cost of resolution plan are given in clause 6 at page 144. The funds for payment of IRP cost will be provided by the resolution applicant as mentioned therein. 38(1)(b) Plan shall identify specific sources of funds that will be used to pay liquidation value due to OCs and provide for such payment in priority to any financial creditor and payment shall be made within 30 days after the approval of the plan by the Adjudicating Authority. In paragraph 6.5/page 147, the plan provides for payment of ₹ 594.89 lakhs within 30 days of approval of resolution plan. Sources of funds.-clause 6, the funds for payment of OCs will be provided by the resolution applicant as mentioned therein. 38(1)(c) Plan shall identify specific sources of funds that will be used to pay the liquidation value due to the dissenting financial creditor which shall be made within 30 days after the approval of the plan by the Adjudicating Authority. No dissenting financial creditors. 38(1A) Plan shall include a statement as to how it has dealt with the interests of all stakeholders, including financial cre .....

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..... ugh optionally convertible debentures, redeemable within 84 months. The operational creditor are to being paid ₹ 5.95 crores within 30 days of the approval of the plan which amounts to 62.36 per cent. of total admitted claims and 85 per cent. of principal claim. The provision regarding waiver of any liability accruing in respect of minimum alternate tax (MAT) kept in resolution plan originally has been deleted in modified plan. The term of plan is increased from three years to seven years without affecting the feasibility and viability of the plan. The resolution professional Mr. Vikram Bajaj will be the monitoring and supervising agency for implementation of the plan. The remuneration of the monitoring agency shall be ₹ 1,50,000 plus taxes and out of pocket expenses at actual. 27. The corporate debtor will stand amalgamated with the resolution applicant as per the scheme of amalgamation. It is stated that the scheme of amalgamation between Swadisht Oils Pvt. Ltd. (transferor company) and Rajasthan Liquors Ltd. (transferee company) as given in annexure B to modified resolution plan at pages 153-168 is to facilitate the insolvency resolution of transferor company and sha .....

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