TMI Blog2021 (10) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... en duly approved by the Committee of Creditors. The resolution plan as approved by the COC satisfies all the requirements of the Code and Regulations made thereunder - application allowed. - IA No. 186/JPR/2019 in CP (IB) No. 86(ND)/2017 and T.A. No. 83(ND)/2018 - - - Dated:- 13-10-2021 - Ajay Kumar Vatsavayi, Member (J) And Raghu Nayyar, Member (T) For the Appellant : Abhishek Anand, Advocate and Party-in-Person For the Respondents : Rishabh Khandelwal, Advocate ORDER Ajay Kumar Vatsavayi, Member (J) 1. The Oriental Bank of Commerce, a financial creditor of the respondent Mount Shivalik Industries Limited, (the corporate debtor) filed CP (IB) No. 86(ND)/2017 under Section 7 of the Code before this Adjudicating Authority seeking initiation of CIRP against the said corporate debtor. This Adjudicating Authority vide its order dated 12.06.2018 admitted the said CP and declared moratorium. Further, Ms. Pratibha Khandelwal was appointed as the Interim Resolution Professional vide its order dated 12.06.2018 in the said CP (IB) No. 86(ND)/2017. 2. It is submitted that public announcement in Form A was made on 15.06.2018. Pursuant to the public announcement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccessful. Afterwards, CoC has decided to issue fresh Expression of Interest for invitation of submission of resolution plan in the same meeting. A copy of minutes of 8th and 9th CoC Meetings are attached as Annexure A-13 and A-14 respectively. 7. It is further submitted that the applicant has filed an IA No. 82/JPR/2018 and this Adjudicating Authority has extended the period of CIRP by 90 days vide order dated 29.11.2018. Copy of order dated 29.11.2018 found attached as Annexure A-11. 8. A fresh Expression of Interests were issued on 01.01.2019 in Form G as per terms of Section 25 (2)(h) of the Code. Thereafter, only one EOI has been received by RP and Corrigendum was issued on 20.01.2019 extending the timelines for submission of EOI by 10 days. The copies of newspaper publication made in Business Standard (English) and Punjab Kesari (Hindi) of Form G and Corrigendum to Form G are attached as Annexure A-15 and A-17. 9. In the 11th meeting of CoC, RP has informed to the members of CoC that four Expression of Interests have been received. In the meanwhile, vide order dated 28.02.2019 (Annexure A-19), this Adjudicating Authority has allowed the application for exclusion of ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be used for the payment of Insolvency Resolution Process cost. 15. As per Section 30(2)(b) of the Code, the resolution plan must provide for payments of the debts of operational creditors in such manner as may be specified by the Board which shall not be less than the amount to be paid to the operational creditors in the event of liquidation of the corporate debtor under Section 53 or the amount that would have been paid to such creditors, if the amount to be distributed under the resolution plan had been distributed in accordance with the order of priority under Section 53(1) whichever is higher. It is stated in Part 5.4 of the resolution plan that dues of 150 unrelated employees of the corporate debtor are settled at 33% of the admitted claim. The claims of non-related operational creditors (Goods and Services) are settled at 10% of the admitted claims. The statutory dues of the corporate debtor are also settled at 10% of the admitted claims. It is further mentioned that the statutory dues which are not admitted shall be settled at 0.1% of the principal amount. 16. As per Section 30(2)(c) of the Code, the resolution plan must provide for the management of the affairs of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi. 22. With regard to the compliance of the second proviso to Section 31(4) of the Code i.e. obtaining the approval of the Competition Commission of India, it is observed that there is no statement made anywhere in this application. 23. With regard to the compliance under Regulation 35A, it is stated that an application has been filed by the Ex-Directors of Mount Shivalik Industries Limited challenging the decision of COC for conducting the forensic audit of corporate debtor for a period of four years and the same is pending before this Adjudicating Authority and that the same shall not be an impediment in approving the plan. 24. Further, the resolution plan fulfills all the requirements of Regulation 38 and 39 of the CIRP Regulations. A perusal of Regulation 38 would clearly show that by virtue of mandatory contents of resolution plan as discussed in the preceding paragraphs in relation to Section 30 and Section 31 of the Code, the requirement of Regulation 38 also stands fulfilled. Even the requirement of Regulation 39 has been satisfied, as the RP has submitted that the resolution plan of Resolution applicant, as approved by the Committee of Creditors, to this Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The 'Corporate Debtor' had accepted the 'Security Deposit' from the Appellant and credited the interest for some time against such amounts for the period 2014-15, and bearing in mind the payment of interest on the amounts borrowed by the 'Corporate Debtor' is nothing but a consideration for the time value of money and the interest is being paid to the Appellant for using the money belonging to the Appellant over a period of time and hence we arrive at the conclusion that the status of Appellant is that of a Financial Creditor vis- -vis. the amount of 'Security Deposit' as per Section 5(7) read with Section 5(8) of the Code. We are of the considered view that the ratio of the Judgment of the Hon'ble Supreme Court in 'M/s. Orator Marketing Pvt. Ltd.' (Supra) is squarely applicable to the facts of this case and we hold that the 'debt' in question is a 'Financial Debt'. 23. Now we address ourselves to the fact that the Resolution Plan has already been accepted by the CoC and is pending before the NCLT for approval. The material on record shows that the Appellant herein had filed an Interim Application on 02.05.2019, chal ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
