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TMI Blog2023 (2) TMI 1377X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court in C.P.(IB)-500(MB)/2019 under Section 7 of the Insolvency and Bankruptcy Code 2016 filed by UCO Bank (Financial Creditor) and Mr. Ankur Kumar (Reg. No.: IBBI/IPA-002/IP-N00113/2017-18/10283) was appointed as Interim Resolution Professional (IRP) and later on was confirmed as RP by CoC in its meeting held on 07.12.2019. ii. The IRP published a public announcement in newspapers in Form-A on 16.10.2019 inviting claims from the creditors, workers/employees of the Corporate Debtor and from government bodies. IRP constituted the Committee of Creditors (CoC) on 06.11.2019 based on the claims received by him. iii. The Resolution Professional received Resolution Plan(s) from M/s. Six Sigma Investment Funds (SSIF) and M/s. Twentyone Sugars Limited (TSL). It is stated by him that both the Resolution Plan(s) met the requirements of the Code as well as the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and are also not in contravention of the provisions of section 29A of the Code. iv. The Applicant states that both the proposed resolution plan contained the mandatory contents of the resolution plan as provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Resolution Plan and approach Hon'ble NCLT for necessary direction and approvals". viii. The RP issued Letter of Intent on 02.09.2021 in favour of the successful Resolution Applicant viz. Six Sigma Investment Fund (SSIF), which is accepted by SSIF unconditionally on 06.09.2021. In the circumstances mentioned hereinabove, the Applicant has filed Application seeking appropriate directions of this Tribunal approving the resolution plan submitted by the Resolution Applicant i.e. SSIF is in accordance with the Section 30(2) and other provisions laid down under the Code. 3. The Resolution Applicant viz. M/s. Six Sigma Investment Funds (SSIF) is a company incorporated in January 2017, under the laws of Cayman under registration number CR-319163. It has presence in various countries. It is stated that "The fund has got special interest in distillery, ethanol in view of blend ability of ethanol with Petrol and diesel. Sustainable energy is a business with good prospect. It operates in India through the experts working with it in multiple fields. It has expert team in the managerial positions. It has collaboration with Indian companies viz. (i) Global Cane Sugar Services Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; 4.1.1 The dissenting Financial Creditors (i.e. those Financial Creditors who voted against or abstained from voting for the Resolution Plan approved by the CoC), as per section 30(2) of the Code, are being paid an amount not less than an amount to be paid to them in accordance with Sec 53(1) in the event of Liquidation of the Corporate Debtor. 4.1.2 Payments to the Operational Creditors (Including Statutory Dues) and to Workmen and Employees have been given in priority of payment over financial creditors in terms of Regulation 38(1) of the CIRP Regulations. 4.1.3 The Operational Creditors have been paid an amount which is not less than the amount to be paid to such creditors in the event of liquidation of the corporate debtor under section 53 or the amount payable to such creditors, if the amount to be distributed under the resolution plan had been distributed in accordance with the order of priority in sub-section (1) of section 53 of the Code, whichever is higher. 4.1.4 The shares held by the existing shareholders of the Company shall be extinguished. In the estimate of the Resolution Applicant, the Liquidation Value that would be payable to the shareholders, wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and other stakeholders involved in the Resolution Plan on the Effective Date. 4.4 The Resolution Applicant has sought various reliefs and concessions as set out in the Resolution Plan. 4.5 The Applicant has submitted that the Resolution Plan, submitted by Six Sigma Investment Funds, approved with 81.74% voting of the members of the Committee of Creditors, has been examined and the Resolution Plan: a. provides for payment of Insolvency Resolution Process Costs in a manner specified by the board in priority to the payment of other debts of Corporate Debtor; b. provides for payment of the debts of the Operational Creditors in such manner as specified by Regulation 38(1) of the IBBI (Insolvency Resolution Process for Corporate Persons Regulations) 2016; c. provides for management of the affairs of the Corporate Debtor after the approval of the Resolution Plan; and d. does not contravene any of the provisions of the law for the time being in force. 5. The Applicant/Resolution Professional further submits that - 5.1 There are five Applications viz. IA-2331/2020, IA-2368/2020, IA-2385/2020, IA-840/2021 and IA-819/2021 filed in relation to preferential transaction(s) under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) adequate means for supervising its implementation? Clause 4 Page No. 49-51 Clause 6 & 7 Page No. 52-54 Clause 4.2 Page No.50 Clause 7.1 Page No. 53 Yes Yes Yes 38(3) Whether the resolution plan demonstrates that - (a) it addresses the cause of default? (b) It is Feasible and Viable? c) it has provisions for its effective implementation? (d) it has provisions for approvals required and the timeline for the same? Clause 8.22 Page No. 65-66 Clause 4.5 Page No. 51 Clause 4 Page No. 49-51 Clause 4.3 Page No. 50-51 Yes Yes Yes Yes 6. The Interlocutory Application No. 2083 of 2021 is allowed. The Resolution Plan submitted by Six Sigma Investment Funds is hereby approved. It shall become effective from this date and shall form part of this order. It shall be binding on the Corporate Debtor, its employees, members, creditors, including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force is due, guarantors and other stakeholders involved in the Resolution Plan. 6.1 The Memorandum of Association (MoA) and Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to payment of prescribed fee and/or deposit(s) and adherence to the procedure stipulated by such authority, however such authority shall not refuse/deny approval/extension/restoration merely on ground of previous defaults/noncompliance of the Corporate Debtor. 6.9 In terms of the judgement of Hon'ble Supreme Court in the matter of Ghanshyam Mishra and Sons Private Limited v. Edelweiss Asset Reconstruction Company Limited, "on the date of approval of the Resolution Plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in, respect to a claim, which is not part of the resolution plan." "95. (i) Once a resolution plan is duly approved by the adjudicating authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the adjudicating authority, all such cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be due. RP shall distribute the amounts allocated to that class accordingly. With there directions, IA-886/2022 is allowed. 8. IA-2438/2021: This Application has been filed by Twentyone Sugars Limited, one of the shortlisted prospective Resolution Applicants seeking supply of evaluation matrix, minutes of the meetings of CoC, voting results, copy of Resolution Plan submitted by the successful Resolution Applicant. It is noticed from the Application filed for approval of resolution plan in IA2083/2021, the resolution plan of the Applicant was rejected by the CoC with 81.74% votes. It is settled legal proposition that the commercial wisdom of the CoC is supreme and cannot be interfered by the Adjudicating Authority in normal circumstances. The demand of information/documents by the Applicant is not maintainable and hence rejected. In these circumstances, IA-2438/2021 is dismissed. 9. IA-831/2021, IA-869/2021: These Applications have been filed by the Resolution Professional seeking to set aside of Provisional Attachment Order (PAO) No. 01 of 2020 dated 23.12.2020 and PAO No. 02 dated 03.07.2019 along with Show Cause notices dated 05.02.2021 and conditional status quo order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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