9911796707
TMI Blog2019 (8) TMI 1578X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution Professional to re-consider the Resolution Plan and to incorporate the above aspects in the Resolution Plan. 2. Brief facts of the case, as mentioned in the Application, which are relevant to the issue in question, are as follows: (1) The Company Petition bearing C.P. (IB) No. 06/BB/2018 was filed by Reliance Nippon Life Asset Management part of erstwhile Anil Ambani Group of Companies, and Vistra India ITCL Limited on behalf of its Portfolio Management Services (PMS) Clients on 22 December 2017. The Adjudicating Authority, vide its order dated 9th August 2018, admitted the C.P. (IB) No. 06/BB/2018 by initiating CIRP by appointing against the Corporate Debtor by interalia appointing Mrs. Nidhi Seksaria as Interim Resolution Professional, imposing moratorium etc. Subsequently, the Committee of Creditors of the Corporate Debtor in their first meeting held on September 07, 2018, confirmed the appointment of Mrs. Nidhi Seksaria as the Resolution Professional. Subsequently, the this Adjudicating Authority vide its order dated 31st January 2019, extended CIRP of the Corporate Debtor by further 90 days beyond 180 days starting from February 5, 2019 i.e. till May 6, 2019. And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision in Claim only aggravates the calculations further. Such returns are clearly usurious, extortionate and detrimental to the interest of public policy and clearly contravene the provisions of Usurious Loans Act, 1918 and Karnataka Money-Lending Act. The fact that the financial creditors are actually PMS investors, this is only a money-lending arrangement under the cover of the Fund Manager. It is alleged that grossly usurious claims have been used by the RP to determine the voting-share in the CoC. All major decisions such as ongoing management of the Project, selection of resolution -applicants, relaxation of criteria on submission of resolution plans, appointment of auditor for the purpose of auditing avoidance transactions have therefore been left to the approval of the CoC, whose voting share has been based on improper usurious claims and undisclosed identities of financial creditors. Therefore, if the usurious claims are reduced to the actual amount that due and payable to the PMS investors, the voting share of RMF and Vistra would have drastically come down and the other financial creditors including the home-buyers, would have had a greater role to play in deciding the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve also not been provided with even their principal amounts. This further substantiates that the process was managed so as to only benefit RMF. 3. Shri Amit Chandrakant Shah, learned Resolution Professional, has filed an Affidavit-in-Reply dated 16.07.2019, by inter alia contending are as follows: (1) The Resolution Professional reiterates that the Applicant has also failed to substantiate its claim/allegations made against Reliance Nippon Life Asset Management Limited and others on this ground alone the Application is liable to be dismissed with cost at the threshold. Reliance Nippon Asset Management Limited and Reliance India Opportunity Limited have been omitted as necessary parties to the Application even though in the present Application also there are certain specific allegations made against Reliance Nippon Asset Management Limited and/or Reliance India Opportunity Limited, and therefore the said parties are required to be made necessary parties to the present Application. Omission of Reliance Nippon Asset Management Limited and Reliance India Opportunity Limited in the present application indicates that the present Application is not filed with bonafide intentions. (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code, it is the duty of the Resolution Professional to receive and collate all the claims submitted by the creditors. According to provisions of Regulation 12(2) of the CIRP Regulations, a creditor is allowed to file his claims along with proof with the Resolution Professional on or before the ninetieth day of the insolvency commencement date. In terms of Regulation 14 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons), Regulation 2016, the Resolution professional is required to revise the amounts of claims admitted as soon as may be practicable, when he comes across additional information warranting such revision. The verification of claims, constitution of Committee of Creditors and determination of voting share of the Creditors has been conducted/ carried out by the erstwhile RP in accordance with the provisions of the Code and the CIRP Regulations. In terms of Regulation 5(28) of the CIRP Regulations "voting share" means the share of the voting rights of a single financial creditors in the committee of creditors, which is based on the proportion of the financial debt owed to such financial creditor in relation to the finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter, on 18th & 20th April 20, 2019, the Applicant sent two mails to the Authorized Representative of the Home Buyers highlighting certain points for discussion in the next CoC meeting. The Authorized Representative discussed the said two emails in the 11th CoC meeting dated April 20, 2019 with the CoC members. In the said 11th CoC, one of the Prospective Resolution Applicant, Aishu Dreamlands Limited decided to withdraw their Resolution Plan for the Corporate Debtor and hence CVPL remained the sole Prospective Resolution Applicant. (8) It is stated that in the said 12th CoC meeting, the concerns raised by the Applicant were discussed with CVPL and the CoC members and the RP also requested CVPL to send a written reply by an email addressing the issues raised by the Applicant. Pursuant to the request, CVPL has vide its email dated April 23, 2019 answered the specific concerns of the Applicant. The email sent by Applicant, its circulation mail to CVPL together with all the members of the CoC and Directors of the suspended Board of the Corporate Debtor, the extract of minutes of 12th CoC meeting and the Reply of CVPL to the email of the Applicant. (9) It is submitted that the RP c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oC meeting and the discussion there on are also recorded in the minutes of the meeting. The Applicant voted against the Resolution Plan. And out of thirty six (36) Home Buyers, twenty-nine (29) Home buyers voted in favor of the Resolution plan in question, six (6) Home Buyers are abstained from voting and one Home buyers i.e. the Applicant voted against the Resolution plan. Since, the resolution plan submitted by CVPL had been approved by a requisite majority, the Resolution Professional upon the instructions of the CoC members, filed an Application for approval of the resolution plan with this Tribunal. (11) It is further submitted that the payments as proposed to be made to the Applicant under the Resolution plan are as per the commercial assessment of CVPL and the Resolution Professional is not authorized to take a decision on the same. (12) In view of the aforesaid, the RP has followed the due process prescribed under law to verify the claims filed by Petitioner/Financial Creditor and has endeavored to redress all the concerns raised by all the stakeholders including the Applicant with regard to the Resolution Plan. Therefore, the claims made by the Applicant in his applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave invested the amount in the Corporate Debtor, and thus, Applicant is a Home Buyer. The Applicant has admittedly filed its claim through Authorised Representative of the Home Buyers nominated in the instant case, and also filed separately through their own Authorised Representative to the Resolution Professional. Accordingly, claim of the Applicant was duly considered by the Resolution Professional and the same was placed before the CoC and the various concerns expressed by the Applicant was also placed before the CoC, as detailed supra. Therefore, it is not the case of the Applicant that the grievance of the Applicant was not taken into consideration by the Resolution Professional, CoC and the prospective Resolution Applicant. It is also not in dispute there are thirty six (36) Home Buyers of the Corporate Debtor, and out of this, twenty-nine (29) Home Buyers have voted in favour of the impugned Resolution Plan, and six Home Buyers are abstained from voting, and only one Home Buyers (that is Applicant herein) has voted against the Resolution Plan. It is settled position of law, as referred to above, power is conferred on Resolution professional, CoC, and prospective Resolution A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to above, is concerned; all these Appeals arise out of various orders passed by the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, in respect of Binani Cements Limited and Anr., one of the impugned order in Appeal before the Hon'ble NCLAT is the order dated 28.02.2018 passed by the Adjudicating Authority Kolkata Bench, wherein CA(IB) No. 175/KB/2018 was referred back to the 'Resolution Professional' to consider in accordance with the rules and regulations of the I&B Code. After considering all the batch cases, the Hon'ble NCLAT has disposed of all the Appeals by Common Judgement dated 14.11.2018, with the following directions under para 73 and 74: "Para 73 "In exercise of powers conferred by Section 31 of the I&B Code, read with order of remand by the Hon'ble Supreme Court, we have gone through the records, revised 'Resolution Plan' submitted by 'Ultratech Cement Limited, gist of which noticed earlier and being satisfied that the 'Resolution Plan' approved by the 'Committee of Creditors' under the sub-section (4) of Section 30 in its 17th meeting held on 28th May, 2018 meets the requirements as referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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