9911796707
TMI Blog2021 (4) TMI 1313X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Creditor viz. Bank of Baroda, under section 7 of the IB Code, seeking initiation of Corporate Insolvency Resolution Process (hereinafter referred as "CIRP") against the Corporate Debtor which was admitted on 30.08.2019 by this Adjudicating Authority and Mr. Chandra Prakash Jain was appointed as Interim Resolution Professional (hereinafter referred as "IRP"). 2.2 That on 20.09.2019, Hon'ble NCLAT granted stay over the CIRP for the purpose of brevity, due to which the entire process came to a standstill. Thereafter, vide order dated 02.12.2019 Hon'ble NCLAT vacated the stay from 04.01.2020, if suspended management fails to act upon the one-time settlement proposal by 31.12.2019. Thereafter, IRP made fresh paper publication on 13.01.2020 as earlier paper publication was made 5 months ago. 2.3 That the Committee of Creditors (hereinafter referred as "CoC") was formed and in its 3rd Meeting held on 17.02.2020, CoC decided for continuation of IRP as RP (Resolution Professional). The period from 20.09.2019 to 04.01.2020 was excluded by this Adjudicating Authority vide its order dated 13.03.2020. Thereafter, there was nationwide lockdown from 25.03.2020 due to spread to Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r e-voting and the plan submitted by Bharat Forge Limited was approved by the CoC with 100% majority voting share. 2.8 The Applicant filed Compliance Certificate in 'Form H' as reflected at page No. 259-265 of the application. Applicant has also submitted the Liquidation values and fair values from two valuers as reflected from page No. 259 of the application 3. Heard the parties, the present application has been filed for approval of the Resolution Plan under Section 30(6) of the IB Code (as amended upto date) submitted by RP in respect of the Corporate Debtor. The Applicant/the Resolution Professional, deliberating the sequence of events right from calling of Eol up to approval of the Resolution Plan by the CoC in its 13th meeting submitted the Resolution Plan duly approved by the CoC by 100% voting share in favour of the Resolution Plan, so submitted by Resolution Applicant as the Resolution Plan complies with the requirements as envisaged under Regulation 38 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 as well as Section 30 of the Code, and sought for approval of the Resolution Plan by this Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Resolution Applicant has also filed Form H under regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 at page No. 259 of the application, which is self explanatory. 8. In view of above Section 30(2) and 30(4) is applicable in the instant case. For sake of the convenience the amended provision is reproduced herein below- "30. Submission of Resolution Plan (1) A resolution applicant may submit a resolution plan [along with an affidavit stating that he is eligible under section 29A] 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 plan-- (a) provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the [payment] of other debts of the corporate debtor; [(b) provides for the payment of debts of operational creditors in such manner as may be specified by the Board which shall not be less than- (i) the amount to be paid to such creditors in the event of a liquidation of the corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Applicant fulfills the mandatory contents of the Resolution Plan as provided under Regulation 38 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. Regulation 38 is reproduced herein under- "38. Mandatory contents of the resolution plan. (1) A resolution plan shall identify specific sources of funds that will be used to pay the- (a) insolvency resolution process costs and provide that the insolvency resolution process costs will be paid in priority to any other creditor; (b) liquidation value due to operational creditors and provide for such payment in priority to any financial creditor which shall in any event be made before the expiry of thirty days after the approval of a resolution plan by the Adjudicating Authority; and (c) liquidation value due to dissenting financial creditors and provide that such payment is made before any recoveries are made by the financial creditors who voted in favour of the resolution plan. ["(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 corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Creditors of Essar Steel India Limited v. Satish Kumar Gupta & Ors. delivered by the Hon'ble Supreme Court, it was strongly opined by the Hon'ble Apex Court that the Adjudicating Authority can exercise only a limited judicial review in respect of any COC decision. NCLT/NCLAT does not have jurisdiction under the provisions of the Code to interfere in the merits of a business decision taken by the majority of COC. The Hon'ble Supreme Court held that the ultimate discretion of what to pay and how much to pay each class or subclass of creditors is with the CoC and that the CoC is the final authority in this regard. The Hon'ble Supreme Court restricted the role of NCLT to only adjudicate whether the CoC has complied with the objects of the Code i.e. the corporate debtor needs to keep going as a going concern during CIRP, it needs to maximize the value of the assets of the corporate debtor, and interests of all stakeholders have to be taken care of. The Court referred to its judgment in K Sashidhar's matter wherein it was provided that there is no provision under the Code which empowers the Adjudicating Authority to oversee the justness of the reason or the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper implementation of the Resolution Plan as those are the subject matter of the concerned/appropriate Competent Authorities. The Resolution Applicant(s) has/have liberty to approach Competent Authorities for any concession, relief or dispensation, as the case may be as when required for proper and effective implementation of the Plan. 16. Apart from the above observations and directions, it is further directed/observed that: i. The approved Resolution Plan shall come into force with immediate effect. ii. The Resolution Plan shall be subject to the various existing laws in force and shall also confirm to such other requirements specified by the Board and other Statutory/Competent Authorities as the case may be. iii. The Resolution Applicant(s) shall pursuant to the Resolution Plan approved under section 31(1) of the Code, obtain the necessary approvals required under any laws for the time being in force within a period of one year from the date of approval of the Resolution Plan by the Adjudicating Authority under section 31(1) or within such period as provided for in such law, whichever is later or as the case may be. iv. The Resolution Professional shall forward all rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
