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2020 (3) TMI 1104

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..... fied 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 Capital India Fund-1" is found in conformity of section 30(2) of the Code and the same is approved. - C. A. No. 188 of 2019 in C. P. No. (I. B.) 24/ALD/2017. - Dated:- 17-1-2020 - Rajesh Dayal Khare J. (Retd.) (Judicial Member) For the Resolution Professional : Anurag Khanna , Senior Advocate along with Gunjan Jadhwani And Charu Bansal For the Resolution Applicant : N. P. S. Chawla ORDER RAJESH DAYAL KHARE J. (RETD.) (JUDICIAL MEMBER).- 1. The instant application is filed under sections 30(6) and 31(1) of the Insolvency and Bankruptcy Code, 2016 (IBC) read with regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations) for seeking approval of the Adjudicating Authority, under section 31 of the IBC, of the resolution plan submitted by the successful resolution applicant, i. e., "Atyant .....

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..... unt 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, 2017 without their permission. A copy of the order dated February 1, 2018 is annexed herewith as annexure 1. 6. Finally the above issue was settled by the judgment dated August 14, 2018 whereby the hon'ble National Company Law Appellate Tribunal recognized the status of Exim Bank as a financial creditor and directed the resolution professional of the corporate debtor to reconstitute the committee of creditors after including Exim Bank and thereafter directed the reconsideration of the resolution plans already submitted with respect to the corporate debtor. It was made clear by the hon'ble National Company Law Appellate Tribunal that the committee of creditors cannot go in for "rebidding" on account of the resolution plans having already been opened. A copy of the order dated August 14, 2018 is annexed herewith as annexure 2. 7. Thereafter, vide order dated Septe .....

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..... arification 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 herewith as Annexure-6. 11. Thereafter, on April 10, 2019, the resolution professional sent e-mails to both the resolution applicants, i. e., Atyant Capital and HOEC seeking confirmation on their interest to participate in the resolution process of the corporate debtor. In response, HOEC and Atyant Capital sent their e-mail confirmation vide e-mail dated April 11, 2019 and April 17, 2019 respectively. 12. Subsequently, in pursuance of the discussions in 17th CoC meeting held on March 29, 2019, the resolution professional on April 18, 2019 filed an application before the hon'ble National Company Law Appellate Tribunal seeking clarification of the August 14, 2018 order and another application before this Adjudicating Authority under section 60(5) of the Code on April 23, 2019 seeking exclusion of time consumed in litigation. 13. On May 24, 2019, 18th CoC meeting took place wherein .....

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..... 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 CoC meeting dated June 17, 2019 are annexed herewith as annexure 12. 17. Thereafter, on June 19, 2019 and June 26, 2019, in the 21st and 22nd CoC meeting the members of CoC further conducted negotiations with Atyant Capital to achieve an upward revision in the financial proposal and the same finally resulted in Atyant Capital offering ₹ 123.1 crores by way of addendum dated June 27, 2019 along with certain amendments. The copies of minutes of minutes of 21st and 22nd CoC meeting dated June 19, 2019 and June 26, 2019 are annexed herewith as annexure 13 and 14 respectively. 18. The applicant stated that, the resolution plan dated June 13, 2019 along with its addendums ("final resolution plan") was then put to voting by the resolution professional, by electronic voting, for approval of the CoC members. The said electronic voting took place from 12:30 am on June 28, .....

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..... n 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 manner as may be specified by the Board which shall not be less than the amount to be paid to the operational creditors in the event of a liquidation of the corporate debtor under section 53 ; (c) Provides for the management of the affairs of the corporate debtor after approval of the resolution plan ; (d) The implementation and supervision of the resolution plan ; (e) Does not contravene any of the provisions of the law for the time being in force ; (f) Confirms to such other requirement as may be specified by the Board." Further, regulations 38 and 39 of CIRP Regulations specify certain man datory contents of the resolution plan. 24. The improved resolution plan approved by the committee of creditors meets the requirements laid down in various clauses of section 30(2) as per the compliance table below : Sub-clause (2) of section 30 Requirement How dealt with in the pla .....

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..... idation 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 creditors and operational creditors, of corporate debtor. The plan takes care of interest of all stakeholders as mentioned in the following paragraphs of the plan Settlement of dues of FCs clause 6.3/page 146 read with clause 6.2 at page 144 Full write off of dues of some connected persons-clause 6.4/ page 146 Settlement of dues of OCs.-clauses 6.5/page 147 Disputed statutory liability- clauses 6.6/page 148 Employees Interest protected-Amalgamation scheme clause 8.4/8.5 on page 161 They will continue in service on same terms and conditions. 38(2)(a) Plan shall provide the term of the plan and its implementation schedule. Term of the plan is 84 months as mentioned in clause 8 at page 150. Supervision, Monitoring of Implementation of the plan is dealt with in clause 10/page 150. Implementation of the plan is through a scheme of amalgamation which is annexure B at pages 153-166. The .....

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..... 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. 28. In view of the above discussion, the modified resolution plan submitted by "Atyant Capital India Fund-1" is found in conformity of section 30(2) of the Code and the same is approved. 29. It is directed that the resolution plan so approved shall be binding on the corporate debtor, its employees, members, creditors guarantors and other stakeholders involved in the resolution plan. With the approval of the resolution plan, the moratorium order passed by this Tribunal under section 14 of the Code shall ceases to have effect. The resolution professional is directed to forward all the record relating to the conduct of the corporate insolvency resolution process and the resolution plan to the IBBI to be recorded on its database. 30. Accordi .....

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