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TMI Blog2020 (10) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicants viz., Mr. Mukesh Gupta and Mr. Krishan Bansal in terms of Section 5(24) of the IBC, 2016 are related parties and is barred under Section 29A of the IBC, 2016. The Resolution Plan is sham and collusive in its nature, as the voting share of the Operational Creditor was reduced from 100% to 36.12% on false and frivolous ground. The Operational Creditor has taken another objection with regarding to mode of the payment of the debts, which is by way of giving the respective stock/material procured from the related party M/s. Bhagwati Product limited (herein referred as BPL). Further, it is submitted that the Resolution Plan is in contravention of the requirement stated under Section 30(2)(e) of the IBC, 2016 and there is breach of contract and the compensation should be provided in terms of Section 73 of the Contract Act. 3. In reply to the objections raised by the Objector/Operational Creditor, the Counsel for the Resolution professional has referred to the ruling of Hon'ble Apex Court given in K. Sashidhar Vs. Indian Overseas Bank & Ors., reported in MANU/SC/0189/2019 : , wherein under Para 33, the Hon'ble Apex Court has observed as follows;- "...the commercial wis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd meeting of the Committee of Creditors. 8. In 9th meeting of the CoC held on 07.08.2019 the following resolutions were passed: - "RESOLVED THAT pursuant to the applicable provisions of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulation, 2016, the Evaluation Matrix for Resolution Plan, as placed before the members of Committee, be and is hereby approved. RESOLVED FURTHER THAT Resolution Professional be and is hereby authorised to do all such acts, deeds and things as may be required or considered necessary or incidental thereto to give effect to the said resolution." "RESOLVED THAT for the purposes of submission of Resolution Plan, the COC hereby decides not to fix any particular criteria, except as contained in the Evaluation Matrix and as provided under the provisions of Insolvency and Bankruptcy Code, 2016 and rules and regulations made there under. RESOLVED FURTHER THAT draft Form 'G', as tabled before the CoC, be and is hereby approved. RESOLVED FURTHER THAT Resolution Professional be and is hereby authorized to do all such acts, deeds and things as may be required or considered necessary, expedient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C is as follows: - "RESOLVED THAT the Resolution Plan being compliant with the laid down regulatory framework under the Code, as submitted by the Joint Resolution Applicants, Shri Mukesh Gupta and Shri Krishan Bansal, be and is hereby approved by the committee of creditors. RESOLVED FURTHER THAT in pursuance to sub-section (6) of section 30 and other applicable rules and regulations made under the Code, Mr. Avineesh Matta, the resolution professional be and is hereby authorized to submit the resolution plan so approved by the committee of creditors, to the Hon'ble adjudicating authority for appropriate orders. RESOLVED ALSO THAT the Committee of Creditors hereby authorizes Mr. Avineesh Matta, Resolution Professional to do all such acts, deeds and take any action to give effect to this resolution." 12. The resolution mentioned above was passed with a voting percentage of 86.33%. The highlights of the "Resolution Plan" are as follows: Resolution Applicants: Shri Mukesh Gupta MD of CD (here in referred as MG) and Shri Krishan Bansal, CFO of CD (here in referred as KB) Resolution Debt: a. The Operational Creditors' claims admitted of Rs. 181.22 Lakhs. b. No claim r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estart the business. 14. The Resolution applicants have filed the Affidavits stating that at the time of submission of Resolution Plan, the accounts of the Resolution applicants and any connected person, as per Explanation-1 provided under Section 29A of the IBC or an account of the Corporate Debtor under the management or control of such person, of whom, such person is a Promoter, is not classified as non-performing asset in accordance with the guidelines of the Reserve Bank of India issued under the Banking Regulations Act, 1949 or guidelines of a Financial Sector Regulator issued under any other law for the time being enforce and atleast a period of one year or more has lapsed from the date of such classification till the date of commencement of Corporate Insolvency Resolution Process of the Corporate Debtor and the applicants have not failed to make the payment of all overdue amounts with interest therein and charges related to non-performing assets before submission of the Resolution Plan. The other conditions provided under Section 29-A are also not attracted in case of the Resolution applicants, even though, they were holding the positions of the MD and CFO in the CD. Form- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16, And Regulation 38(3) of IBBI (Insolvency Process for Corporate persons) Regulations, 2016. The Committee of Creditors, after considering the feasibility and viability of the Resolution Plan have approved the same by 100% voting. Amongst the 4 prospective resolution applicants, ShriMukesh Gupta and Shri Krishna Bansal jointly submitted a Resolution Plan along with Performance Security amount. Joint Resolution Applicants propose to exit LA batteries business of the Corporate Debtor. 16. In view of the above, the "Resolution Plan" annexed with the CA-799/C-III/ND/2019 filed in CP No. 33/ND/2018 is hereby approved which shall be binding on the Corporate Debtor and its employees, members, creditors, guarantors and other stakeholders involved in the Resolution Plan including the Resolution Applicants. 17. While approving the Resolution Plan, as mentioned above, it is clarified that the Resolution Applicants shall pursuant to the Resolution Plan approved under Section 31(1) of the I&B Code, 2016, obtain all the necessary approval as may be required under any law for the time being in force within a period of one year from the date of approval of the Resolution Plan by this authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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