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TMI Blog2020 (11) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 30th January 2020 passed by the Adjudicating Authority/National Company Law Tribunal, Cuttak Bench, Cuttak in Company Petition (IB) No. 157/C.T.B./2019, whereby the Adjudicating Authority has approved the Resolution Plan filed by Respondent No.3. The Parties are represented by their original status in the Company Petition for the sake of convenience. 2. The brief facts of the case are as follows: The Company Appeal (AT)(Insolvency) No.340 of 2020 is filed against the Impugned Order, dated 30th January 2020, whereby the Adjudicating Authority has approved the Resolution Plan filed by Respondent No.3 Sterlite Power Transmission Limited (in short 'SPTL'), mainly on the ground that the Resolution Plan encompasses with assets of third parties (including the Appellant herein) and not just of the Corporate Debtor which is contrary to Law, thus violative I&B Code, 2016. 3. In addition to the above, it is submitted that the Resolution Plan of Respondent No.3 does not factor the value of shares of Facor Power Limited (in short 'FPL'),i.e. the subsidiary and principle borrower, wherein the Respondent No.4 along with its associate companies, have invested a sum of Rs. 230 Cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 'FPL' in the Resolution Plan, is in itself a transgression of power and Authority of Respondent No.1 and 2. In the circumstances, the Appellant has filed this Appeal to set aside the Impugned Order dated 30th January 2020 whereby the Adjudicating Authority has approved resolution Plan of the Respondent No.3. 8. In Company Appeal (AT)(Insolvency) No.462 of 2020, the Appellant/ Toplight Corporate Management Private Limited has challenged the approved Resolution Plan on the ground that the Adjudicating Authority has approved the Resolution Plan which is contrary to Law as it violates Section 30(2) of the Code and is against the objectives of the Code, as it gives unequal treatment to the same category of Financial Creditors (including the Appellants herein) purely on the basis that the Appellant dissented/abstained from voting to the said Resolution Plan. 9. The Appellant contends that Financial Creditors belonging to the same category, even if they dissent to the Resolution Plan, have to be treated in parity with the same Class of Financial Creditors and are entitled to equitable treatment under the provisions of the Code. In contrast, the approved Resolution Plan discri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Company. Sustainable Debt of Dissenting Creditors forming part of the Admitted Financial Debt of the Dissenting Financial Creditors would be converted into zero coupons, secured and unlisted Non-Convertible Debentures of the Company and will be issued to the Dissenting Financial Creditors proportionally. It is alleged that the Adjudicating Authority has failed to consider that the Resolution Plan of the Respondent No.3 is approved without giving any reasons qua the unequal treatment being given to the same Class of creditors, which is contrary to the intent and objective of the Code. 13. It is further contended that the approved Resolution Plan does not in any manner protect the interest of all the stakeholders, especially the Financial Creditors who have dissented to the said Resolution Plan. It is submitted that the said Resolution Plan, on the face of it is contrary to the basic purpose of the Code and ought to be rejected. Thus, it is amply clear that the said Resolution Plan does not protect the rights of all its stakeholders, thereby defeating the very objective of the Code, i.e. maximisation of the assets of the Corporate Debtor. 14. In Reply to the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itors? iii) Whether approved Resolution Plan filed by Sterlite Power Transmission Limited is violative of Section 30(2) of the I&B Code, 2016? Issue No.1 21. Learned Counsel for the Appellant submits that after initiation of Corporate Insolvency Resolution Process under Section 7 of the Code, IRP/RP is entitled to take over the management and assets of the Corporate Debtor, i.e. Ferro Alloys Corporation Limited, which is the corporate guarantor of the principal borrower. 22. It is submitted that the REC/Respondent No.2 has initiated CIRP qua Corporate Debtor. However, under the Resolution Plan, a third party company Facor Power Limited (FPL) is being given away at a throwaway price without ascribing any value to the shares of FPL, whereas the valuation of 'FPL' is more than Rs. 538 crores. The clandestine manner in which 'FPL' has been included in the CIRP of the Corporate Debtor, is ex-facie illegal and is in violation of Section 60(5) of the Code. It is evident from a perusal of the Resolution Plan that on multiple occasions, it encompasses the CIR process for both the Corporate Debtor as well as a third party company 'FPL'. Initially Respondent No.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansfer shall be made without regard to the underlying pledge Agreement. Further, the Approved Resolution Plan does not restrict the Appellants in any manner from redeeming the pledge created. Neither the Appellants have denied the existence of the pledge, nor have they denied the existence of defaults which makes the pledge enforceable. The Approved Resolution Plan is thus, in accordance with the Law of contracts and other applicable laws and therefore, fully compliant with the requirement of Section 30(2)(e) of the Code. 27. Counsel for the Respondent No. 3 submits that the Corporate Debtor holds 86.09% shares in FPL. In terms of Section 18(f) (v) of the Code, any shares held by the Corporate Debtor in a subsidiary Company form part of assets of the Corporate Debtor. Therefore, it is an obvious consequence that a Resolution Applicant, while taking over the Corporate Debtor, will also be vested with the shares held by the Corporate Debtor in its subsidiary company. 28. In terms of Section 18(f) (v) of the Code, 86.09% shares of FPL are owned by the Corporate Debtor and hence, is an asset of the Corporate Debtor. These assets of the Corporate Debtor are being taken over by Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a shareholder has and can exercise over the said Company. Hence, even in the absence of such an express provision in Resolution Plan, the Resolution Applicant after taking over the Corporate Debtor is entitled to exercise its right over its subsidiary company. Based on the above, we are of the considered view that the Appellant's objection regarding the inclusion of the subsidiary company of the Corporate Debtor in the Resolution Plan is not sustainable. Issue No 2 & 3; 34. In Appeal No. 462 of 2020, the Appellant has raised an issue that the approved Resolution Plan of Respondent No. 3 is entirely against the provisions of the Insolvency and Bankruptcy Code, 2016. The said Resolution Plan provides differential treatment among the same Class of Creditors which is discriminatory and impermissible in Law. 35. It is contended that Financial Creditors who consented to the approved Resolution Plan are entitled to the issuance of Non-Convertible Secured Debenture as well as the upfront cash payment of the Respondent No. 4, i.e. FACL. On the other hand, the dissenting Financial Creditors (including the Appellant herein) are entitled to Non-Convertible Secured Debentures only. 36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Persons) Regulations, 2016 ensures priority in payment to non-consenting creditors, therefore, it would be contrary to the Code to give priority in payment to non-consenting Financial Creditors, however, on the other side give lower quantum of payment. d) Regulation 38(1A) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 states that interest of all the stakeholder will be consider, again bringing on the notion of fairness and equality in treatment of the same Class..." (emphasis supplied) 38. It is further contended that Hon'ble Supreme Court in Case of Rahul Jain vs Rave Scans Pvt. Ltd. has held that prior to the amendment in CIRP Regulations under Insolvency and Bankruptcy Code on 5th October, 2018, it was possible to differentiate between consenting and non-consenting Creditors. However, post 5th October, 2018 when the regulations have been amended, the older provision had been stepped down, so it is not possible to differentiate between the consenting and non-consenting Creditors any further. 39. Hon'ble Supreme Court in Case of Rahul Jain vs Rave Scan Pvt. Ltd. 2019 (10 S.C.C. Page 548) has he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Case of operational creditors being the higher of the two figures calculated under sub-clauses (i) and (ii) of clause (b), and the minimum in the Case of dissentient financial Creditor being a minimum amount that was not earlier payable. As a matter of fact, pre-amendment, secured financial creditors may cramdown unsecured financial creditors who are dissentient, the majority vote of 66% voting to give them nothing or next to nothing for their dues. In the earlier regime it may have been possible to have done this but after the amendment such financial creditors are now to be paid the minimum amount mentioned in sub-section (2). Mrs. Madhavi Divan is also correct in stating that the order of priority of payment of creditors mentioned in Section 53 is not engrafted in sub-section (2)(b) as amended. Section 53 is only referred to in order that a certain minimum figure be paid to different classes of operational and financial creditors. It is only for this purpose that Section 53(1) is to be looked at as it is clear that it is the commercial wisdom of the Committee of Creditors that is free to determine what amounts be paid to different classes and sub-classes of creditors in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondent No. 3, Sterlite Power Transmission Ltd, which is the Successful Resolution Applicant submits that the Resolution Plan is approved by the COC with a majority of 95.15% of vote share and thereafter approved by the Adjudicating Authority. The Appellant contends that it became aware of the Resolution Plan on 2nd February 2020 after coming across a public notice, and hence, approached this Appellate Tribunal directly without first approaching the Adjudicating Authority. 46. It is important to mention that the Appellant duly participated in the Resolution Process, which is evident from the perusal of relevant part of the Appeal Paper Book provided as under: Para 9, Appeal Paper Book of 462 of 2020: "That the Respondent No. 3 had submitted a Resolution Plan dated 13.11.2019, which was approved by 95.15% of voting share in the 31st Committee of Creditors Meeting and subsequently approved by the adjudicating Authority vide the Impugned Judgement. It is pertinent to mention herein that the Appellant herein has always been against the said Resolution Plan due to the reasons as stated below. Para 15: That in the meantime, the Respondent No. 4 went into CIR Process and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n counted for the purpose of counting the voting shares of the 27 Company Appeal (AT) (Insolvency) No. 198 of 2018 'Committee of Creditors'. In fact, 97.12% voting shares of members being present in the meeting of the 'Committee of Creditors' and all of them have casted vote in favour of 'JSW Steel', we hold that the 'Resolution Plan' submitted by 'JSW Steel' has been approved with 100% voting shares." (verbatim copy) 50. In Case of IDBI Bank Ltd. Vs Anuj Jain order dated 10th June 2019 this Tribunal has held that 'we make it clear if any of the Financial Creditors remains absent from voting, their voting percentage should not be counted for the purpose of counting the voting shares. 51. Based on the above discussion, it is clear that the Appellant abstained from voting but participated in the Resolution Process. The Appellant was fully aware of the developments from Resolution Process from up to the approval of the Resolution Plan before the Adjudicating Authority but never raised any objection. The Appellant has directly filed the Appeal before this Appellate Tribunal after withholding of material information from this Tribunal. Therefore, the Appellant of Appeal No. 462 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for agitation by the petitioners. It is also no longer open to the petitioners to contend that certain points had not been urged and the effect of the Judgment cannot be collaterally challenged. -------- Thus it is clear that the binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided. (emphasis supplied) 54. The legal position is well settled that an approved Resolution Plan can deal with the related party claim and extinguish the same which shall ensure that the Successful Resolution Applicant can take over the Corporate Debtor on a clean slate. The related Parties are being kept out to ensure continuity of operation of both FACL and FPL following the provisions of the Code. We also do not find any substance based on which it can be inferred that the Resolution Plan is not in conformity with the provisions of Code as provided under Sec 30(2) of the Insolvency and Bankruptcy Code, 2016. 55. Based on the above discussion, we are of the considered opinion that there are no reasons for interference in the Order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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