9911796707
TMI Blog2021 (6) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor. After receipt of the claims the IRP constituted the Committee of Creditors (CoC) of the Corporate Debtor on 10.10.2017. The IRP conducted the 1st meeting of the CoC on 16.10.2017. The CoC resolved to appoint the Applicant as the Resolution Professional (RP) of the Corporate Debtor and the same was confirmed by this Bench. c) Since there was no response for the Form-G issued by the RP on 22.11.2017 another Form-G was issued on 04.06.2018, inviting Expressions of Interest (EOI) from Prospective Resolution Applicants (PRAs). The last date for submission of Resolution Plan was 29.08.2018. d) The CIRP period for the Corporate Debtor was extended by 90 days by this Tribunal vide order dated 02.08.2018. e) It is submitted by the Applicant that post introduction of section 240A in the Code on 06.06.2018, he received Resolution Plan from a PRA, Mr. Gururaj S R (erstwhile Director of the Corporate Debtor) on 20.08.2018. f) After due verification of the eligibility of the PRA in terms of Section 29A of the Code, the CoC in its 9th meeting held on 10.09.2018 discussed the Resolution Plan and approved it with voting share of 97.98% in favour and 2.02% against. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who is with the Company for more than 10 years and has more than 20 years of experience in the Sector. f) IMPLEMENTATION, SUPERVISION OF THE RESOLUTION PLAN AND DAY-TO-DAY MANAGEMENT TEAM: The Resolution Plan proposes that the powers of the Board of Directors will get reinstated upon the approval of the Plan. The Board would appoint a Monitoring Committee for implementation and supervision of the Resolution Plan comprising of whole-time director and Independent director. It is submitted that the unit will have able guidance from Mr. C. Suresh Kumar who is in the Steel and Ferro Alloys Sector from more than 4 decades and was associated with the Company from 2005 to 2010. g) COMPLIANCE OF MANDATORY CONTENTS OF RESOLUTION PLAN UNDER THE CODE AND THE REGULATIONS: It is submitted that the Applicant has conducted a thorough compliance check of the Resolution Plan in terms of the Code as well as Regulations 38 and 39 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate person) Regulations, 2016 (the Regulations) and has submitted his Form H under Regulation 39(4). It is submitted that the Plan is in compliance with the provisions of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e means for supervising its implementation as per clause 8 and 15 thereof (Regulation 38(2)). f. The Resolution Plan also addresses the cause of default, feasibility and viability, as per clause 8 and 15 thereof as required under Regulation 38(3) of the Regulations. 6. The SRA has sought certain reliefs and concessions in the Resolution Plan. It is submitted that the electricity connection has been disconnected by the Goa Electricity Board (GEB) due to non-payment of dues of INR 1.95 Lakhs. The GEB has collected minimum demand charges during the closure period which as per the Sick Industrial Policy of the Central Government needs to be refunded. Further, Sick Industrial Policy envisages waiver of interest and penalties during the closure period. With these waivers put in place an amount of approx. INR 20 Lakhs is to be refunded by GEB and RA proposes to use this INR 20 Lakhs as security deposit for reconnection of power connection. 7. The SRA has further sought certain reliefs and concessions as under: a. The Resolution Applicant has sought directions to provide relief allowable to a sick company as per Gazette Notification dated 17/11/2016 of Government of Goa for rehabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider waiver of penalty/damages, interest, if any charged on the income tax arrears for the past years. e. The SRA has sought relief regarding transfer of lease hold rights in respect of land measuring 2679.50 square metres owned by Goa Industrial Development Corporation (GIDC). The Unit was acquired by the Company in 2004 from GIDC. The Unit as per records was comprising of 4017 square metres of land, building, plant and machinery and substation. However, the available land was 6696.50 square meters bound by a Single Compound marked as plot no 118A and 118B. Some of the equipments were located in the 4017 square meters handed over and others in 2679.50 which were embedded to the land and which was very essential to store raw materials. In this background, the Company had paid requisite fee for transfer of lease hold rights in respect of 2679.50 sq mtrs way back in 2005 itself. However, GIDC declared the said 118B plot as open space taking into consideration the rules of GIDC which requires 15% as open space. GIDC has recently changed the rules wherein the open space required in a layout is reduced to 7.5% and the said plot can be transferred in the name of the Company. Requisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discretion of the Adjudicating Authority is circumscribed by Section 31 and is limited to scrutiny of the Resolution Plan "as approved" by the requisite percent of voting share of financial creditors. Even in that enquiry, the grounds on which the Adjudicating Authority can reject the Resolution Plan is in reference to matters specified in Section 30(2) when the Resolution Plan does not conform to the stated requirements. 11. In CoC of Essar Steel (supra) the Hon'ble Apex Court clearly laid down that the Adjudicating Authority would not have power to modify the Resolution Plan which the CoC in their commercial wisdom have approved. In para 42 Hon'ble Court observed as under: "Thus, it is clear that the limited judicial review available, which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors, has to be within the four corners of section 30(2) of the Code, insofar as the Adjudicating Authority is concerned, and section 32 read with section 61(3) of the Code, insofar as the Appellate Tribunal is concerned, the parameters of such review having been clearly laid down in K. Sashidhar (supra)." 12. In view of the discussio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s far as the reliefs sought from the Commercial Tax department and GEB is concerned, SRA has to apply to the relevant department for necessary reliefs. The Department concerned may consider their application, as far as practicable favourably, in accordance with the law. b. With regard to reconnection of water supply from the Goa Public Works Department (PWD), the SRA has to apply for the same. PWD shall not insist on payment of pre-CIRP dues while dealing with such application. c. As regards reliefs sought under disconnection of electricity, the SRA may apply to GEB for the exemptions as may be necessary and such application may be considered in accordance with the law for the successful implementation of the Resolution Plan. d. As regards reliefs sought from the Employee State Insurance (ESI) and Provident Fund (PF) is concerned SRA has to apply to the department concerned. They may be considered in accordance with the law. Concessions if permissible may be granted. e. The SRA has sought exemptions for the Company from the penal provisions of Income Tax, Companies Act, Central Excise Act, Service Tax Act, Central Sales Tax and any other law. In respect of these concessions ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
