TMI Blog2021 (6) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... n accordance with law - Application allowed. - IA No. 1783/MB/2020 C.P. (IB) No. 42/MB/2019 - - - Dated:- 14-6-2021 - Janab Mohammed Ajmal, Hon ble Member (Judicial) And Shri V. Nallasenapathy, Hon ble Member (Technical) For the Applicant : Mr. Rahul Totala, Advocate with Associates For the Resolution Applicant : Mr. Ayush J. Rajani, Practising Chartered Accountant ORDER Per : V. Nallasenapathy , Member (Technical) 1.This is an Application filed by the Resolution Professional of the Corporate Debtor under Section 30(6) of the Insolvency and Bankruptcy Code, 2016 (the Code), seeking approval of the Resolution Plan submitted by Dr. Bharat Agrawal in consortium with M/s Theta Labs Private Limited (Resolution Applicant). 2.The facts leading to the Application are as under. a.Corporate Insolvency Resolution Process (CIRP) of the Corporate Debtor was initiated by this Bench by an order dated 14.08.2019 upon admission of a Petition under Section 7 of the Code and Mr. Jagdish Kumar Parulkar was appointed as the Interim Resolution Professional (IRP). The moratorium was declared w.e.f. 14.08.2019 and IRP after receipt of order on 19.09.2019 took over the char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7th meeting held on 20.03.2020 resolved to replace the erstwhile RP with Mr. Mangesh Vitthal Kekre as RP (the Applicant) and the same was approved by the NCLT, Principal Bench vide order dated 08.06.2020. The Applicant took charge of the Corporate Debtor on 22.06.2020. i.The Applicant filed IA no. 1158 of 2021 on 22.04.2021 for exclusion of period covered within the Covid 19 pandemic from 23.03.2020 to 31.08.2020. It is submitted that the Resolution Plan was approved by the CoC on 04.09.2020 and the present Application has been filed on 28.09.2020. Considering the developments, the Application for exclusion was allowed by this Tribunal vide order dated 03.06.2021 by extending the CIRP period till the filing of the plan before this Tribunal. 3.The Applicant received only one Resolution Plan on 31.08.2020 from PRA- Dr. Bharat Agrawal in consortium with M/s Theta Labs Private Limited. The other PRA (Skymap Pharmaceuticals Private Limited) did not furnish any Plan. After due verification of the eligibility of the PRA in terms of Section 29 (A) of the Code, the CoC in its 15th meeting held on 04.09.2020 considered the Resolution Plan and approved the Plan with 96.84% voting sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (b) Other than (a) above: Who did not vote in favour of the Resolution Plan Who voted in favour of the Resolution Plan (Note 1) - 3091.00 - 3091.00 - 1280.00* Total (a) +(b) 3091.00 3091.00 1280.00 2 Unsecured (a) Creditors not having a Financial Creditors right to vote under sub Section (2) of Section 21 - - - (b) Other than (a) above: Who did not voted in favour of the Resolution Plan Who voted in favour of the Resolution Plan 100.74 - 100.74 - 1.00 - Total (a) + (b) 100.74 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor with Bank of India, Saket Nagar Branch, towards performance security as per Regulation 36B(4A) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (the Regulations). g.MANAGEMENT OF THE CORPORATE DEBTOR: The management of the Corporate Debtor will be by the professionals/ persons nominated by the SRA. The reconstituted Board of directors of the Corporate Debtor shall constitute such number of directors as shall as determined by the SRA. The Reconstituted Board shall take charge of Corporate Debtor from the completion date. h.SUPERVISION OF THE RESOLUTION PLAN: The Monitoring Agency shall be constituted for supervision of the Resolution Plan consisting of the Applicant (RP), one member of CoC and one Nominee of the SRA. If the SRA and applicant fail to agree on the fee or other terms, the SRA shall have the right to appoint any other firm/ person in place of the Applicant as member of the Monitoring Agency. The Monitoring Agency shall mange the affairs of the Corporate Debtor and shall exercise the powers of its Board of Directors and shall function till the settlement of the Creditors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any of his related party has either failed or contributed to the failure of the implementation of any other approved Resolution Plan (Regulation 38(1B) of the Regulations). e)The Plan also provides for term and implementation schedule, management and control of the Corporate Debtor and adequate means for supervising its implementation (Regulation 38(2) of the Regulations). f)The Resolution Plan also addresses the cause of default, feasibility and viability, as required under Regulation 38(3) of the Regulations. 7.The SRA has sought certain reliefs, concessions and waivers at Clause 16 of the Resolution Plan. 8.It is beneficial to refer to the observation of the Hon ble Supreme Court in Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta Ors.:(2019) SCC OnLine SC 1478 as under: 67. A successful resolution Applicant cannot suddenly be faced with undecided claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution Applicant who successfully take over the business of the corporate debtor. All clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s concerned, the parameters of such review having been clearly laid down in K. Sashidhar (supra). 12.The Applicant has filed an Affidavit dated 04.06.2021 stating that there are some inadvertent clerical errors in the Resolution Plan they are:- a... At page No. 42 clause 20.2 (c)(ii), clause 20.2(c)(iii)(d), at page No. 46 clause 20.4(c), 20.4(f) and at page No. 48 clause 21(a): The name of the Corporate Debtor would be subsequently changed to Theta Pharmaceuticals Private Limited instead of Theta India Private Limited b... At page No. 9 clause 301(v): Year 2020 has been mentioned while referring to the date of approval of RFRP by CoC i.e. it should have been 09 December 2019 instead of the typo error of 09 December 2020 and the date on which the same was shared by Resolution Professional should have been 23 March 2020 instead of 19 December 2020 c... At page No. 35 clause 16.5(c) GSTN to be mentioned as old GSTN 05AAKCS3247G1ZD and new GSTN 05AAKCS3247G2ZC d... At page No. 6 clause No. 1: Date of Resolution Plan should have been 30.08.2020 instead of typo error of 25.06.2020. Accordingly in the Resolution Plan the above corr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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