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TMI Blog2019 (11) TMI 1694X X X X Extracts X X X X X X X X Extracts X X X X ..... on Plan submitted by the Resolution Applicant. 2. After the conclusion of the Ninth CoC meeting, Mr. Sandeep Kadam, authorized representative of M/s ED & F Man Commodities India Pvt. Ltd. contacted the Resolution Professional over a telephonic call and intimated that they are reconsidering their decision and willing to assent to the approval of the said resolution plan. Mr. Sandeep Kadam also vide its e-mail dated 04.10.2019 requested the Resolution Professional to change the voting of M/s ED & F Man Commodities India Pvt. Ltd. from 'Descent' to 'Ascent' and also requested the Resolution Professional to share the physical ballot paper for the purpose of voting. Thereafter, the Resolution Plan was approved unanimously by all the CoC Members by 100% voting in favour of the Resolution Plan. 3. The Corporate Debtor, New Phaltan Sugar Works Limited was put under Insolvency Resolution Process by an order of this Tribunal dated 22.02.2019. Pursuant to the said order, Mr. Vishram Narayan Panchpor, having Registration No. IBBI/IPA-002/IP-P00269/2017-18/10782 was appointed as an Interim Resolution Professional (IRP) of the Corporate Debtor. The said IRP issued Public Announcement inviting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts proposed to be paid and certain other modifications in the Resolution Plan. 11. Thereafter, resolution plan submitted again on 27.09.2019 alongwith the affidavit under section 29A of the Code, the same was considered by CoC in the Ninth meeting held on 04.10.2019 where the RP informed that the plan complies with the requirements of section 30(2) of IBC. The said resolution plan was approved with 71.32 % voting by CoC. However, as explained above, M/s ED & F Man Commodities India Pvt. Ltd. Later decided to change their vote from "dissent" to "assent" approving the Resolution Plan unanimously by 100% voting by CoC. 12. The Applicant had also filed an MA 2838/2019 seeking extension of 90 days of CIRP period from 20.08.2019, which was passed by the CoC with 100% voting and approved by this Tribunal vide its order dated 11.09.2019 extending the CIRP 17.12.2019. 13. The Resolution Plan approved by the Committee of Creditors provides for the following payments to the stakeholders: Sno. Particulars of Claim Claim admitted (In INR) Total payable as per resolution plan (In INR) Term of Payment 1. Secured Financial Creditors 56,96,28,193.00 30,92,52,619.20 3 Mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to protect the interest of the farmers. 18. Thereafter, on 05.11.2019, the Resolution Applicant filed another application before this Tribunal, wherein they proposed to change the Original Part H and recommended to pay the Farmer in the following method: "(B) Security of the payment to be made towards farmers' claim (i) The Resolution Applicant in order to secure the payment of the amount due towards farmers claim shall furnish a bank guarantee in the sum of Rs. 10,00,00,000/- (Rupees Ten Cores Only). The said bank guarantee will be kept valid and subsisting for a period of 15 months from the date of passing of the order by this Hon'ble Tribunal approving the Resolution plan and the Resolution Applicant being put in physical possession of the factory premises. (ii) Upon the Resolution Applicant making payment of the sum of Rs. 10,59,49,888/- (Rupees Ten Crores Fifty Nine Lakhs Forty Nine Thousand Eight Hundred and Eighty Eight only) towards the farmers dues in the manner mentioned in Clause II (A) (i) above, the Resolution Applicant shall furnish an additional bank guarantee of Rs. 5,00,00,000/- (Rupees Five Crores Only) in order to secure the balance amount of Rs. 15,00, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erhauling, as well as restarting of the commercial operations of the Plant. 22. The Board of Directors of Resolution Applicant shall supervise the implementation and execution of Resolution Plan. The Resolution Applicant shall submit a half yearly progress report in the format suggested by the CoC to appraise them about the supervision of the implementation of the Resolution Plan. For supervision and implementation of resolution plan, a core committee consisting following persons shall be formed; (i) Resolution Professional (Chairperson) (ii) Two Representatives of Resolution Applicant (iii) One Representative of State bank of India (iv) One Representative of Cosmos Bank (v) One Representative of FDS Infotech.. (vi) One Representative of Bharti Sahakari Bank Ltd. (vii) One Representative of Farmers. 23. Herein, it is important to place reliance on Section 30 and Section 31 of the Code which provides as below: "(1) A resolution applicant may submit a resolution plan to the resolution professional prepared on the basis of the information memorandum. (2) The resolution professional shall examine each resolution plan received by him to confirm that each resolution p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (b) the resolution professional shall forward all records relating to the conduct of the corporate insolvency resolution process and the resolution plan to the Board to be recorded on its database." 24. It is also necessary to refer the provisions of Regulation 38 and 39 of CIRP Regulations to come to a conclusion that requirements of the Regulations are fulfilled and the same reads as below: "Regulation 38 - Mandatory contents of the resolution plan: (1) The amount due to the operational creditors under a resolution plan shall be given priority in payment over financial creditors. (1A) A resolution plan shall include a statement as to how it has dealt with the interests of all stakeholders, including financial creditors and operational creditors, of the corporate debtor. (2) A resolution plan shall provide: (a) the term of the plan and its implementation schedule; (b) the management and control of the business of the corporate debtor during its term; and (c) adequate means for supervising its implementation. (3) A resolution plan shall demonstrate that - (a) it addresses the cause of default; (b) it is feasible and viable; (c) it has provisions for its e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticipants and the resolution applicant. (8) A provision in a resolution plan which would otherwise require the consent of the members or partners of the corporate debtor, as the case may be, under the terms of the constitutional documents of the corporate debtor, shareholders' agreement, joint venture agreement or other document of a similar nature, shall take effect notwithstanding that such consent has not been obtained. (9) No proceedings shall be initiated against the interim resolution professional or the resolution professional, as the case may be, for any actions of the corporate debtor, prior to the insolvency commencement date. (10) A person in charge of the management or control of the business and operations of the corporate debtor after a resolution plan is approved by the Adjudicating Authority, may make an application to the Adjudicating Authority for an order seeking the assistance of the local district administration in implementing the terms of a resolution plan." 25. As discussed supra by virtue of mandatory contents of resolution plan, the same is in accordance with Section 30 and 31 of the Code, and also complies with the requirement of the Regulations 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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