2017 (12) TMI 1763 - Tri - Insolvency and Bankruptcy

Approval of Resolution Plan - learned counsel appearing for EXIM Bank submitted that the bank has not yet been supplied with a copy of the resolution plan - application for stay of the present proceedings has been filed and is now sub judice before the Hon'ble NCLAT - HELD THAT - The PCS representing the RP submitted that he is not aware of filing of such stay application. However, there is no stay till date - As of today there is no stay from Hon'ble NCLAT in respect of proceeding of this Tribunal or for pronouncement of order on approval or otherwise of the resolution plan, therefore, this court can proceed further to pass an order. However, this order would be subject to outcome of pending appeal and appropriate directions that may be issued by the NCLAT in pending appeal. The Committee of Creditors in its meeting held on December 07, 2017 has approved the resolution plan as submitted by M/s Atyant Capital India Fund - I through voting (of more than 80%) in its favour as per Section 30(4) of the Insolvency and Bankruptcy Code, 2016, read with Regulation 39(3), of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulation, 2016. Subsequently, the State Bank of India also which earlier remained absent in such voting. Later on it has duly concurred with the CoC, such decision dated 07.12.2017 for approval of the resolution plan. Hence, it is deemed that 100% of CoC member has agreed for and approved the resolution plan as submitted by the Atyant Capital India Fund - The RP received a legal opinion and vetting from M/s Luthra Luthra, M/s Vinod Kothari Co. and M/s J. Sagar Associates, all of them have confirmed the resolution plan opining that such Plan is in conformity with the provisions of Insolvency and Bankruptcy Code. 2016. As the Resolution Applicant M/s Atyant Capital India Fund has made such declaration that the Resolution Plan does not contravene any provision of the law for time to time being in force which is annexed with the present application and to be formed part of the resolution plan. A perusal of Proposed Resolution Plan shows that all the requirement of the IBC and CIRP regulations have been complied with. Further, the proposed Resolution Plan seems to be bona fide and beneficial to the interest of the company, nor it is forbidden by law - Therefore, this court being an Adjudicating Authority is not expected to substitute its view with Commercial Wisdom of the RP and CoC nor it should deal with technical complexity and merits of Resolution Plan unless it found contrary to express provision of law and goes against the public interest. Application allowed.

Summary

Issues Involved:
1. Approval of the Resolution Plan under Section 30(6) of the Insolvency and Bankruptcy Code, 2016.
2. Compliance with the Insolvency and Bankruptcy Code and related regulations.
3. Evaluation of the Resolution Plan by the Committee of Creditors (CoC).
4. Legal vetting and conformity of the Resolution Plan.
5. Binding nature and implementation of the Resolution Plan.

Issue-wise Detailed Analysis:

1. Approval of the Resolution Plan under Section 30(6) of the Insolvency and Bankruptcy Code, 2016:
The application was filed by the Resolution Professional (RP) seeking approval for the Resolution Plan for JEKPL Private Limited, which was duly approved by the Committee of Creditors (CoC). The Tribunal considered the application and the facts presented, including the recommendation and approval by the CoC.

2. Compliance with the Insolvency and Bankruptcy Code and related regulations:
The Tribunal noted that the Resolution Plan was in conformity with Section 30(2) of the Insolvency and Bankruptcy Code, 2016, and Regulation 39(2) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The RP confirmed compliance with the Code and regulations through affidavits from the Resolution Applicants.

3. Evaluation of the Resolution Plan by the Committee of Creditors (CoC):
The CoC evaluated the Resolution Plans submitted by the prospective applicants, including Atyant Capital India Fund-I and Hindustan Oil Exploration Company Limited. After several meetings and an inter se bidding process, the CoC approved the Resolution Plan of Atyant Capital India Fund-I with a voting percentage of 82.63%. The CoC's decision was based on detailed assessments, including revised liquidation values and legal opinions.

4. Legal vetting and conformity of the Resolution Plan:
The Resolution Plan was vetted by reputed law firms, including M/s Luthra & Luthra, M/s Vinod Kothari & Co., and M/s J. Sagar & Associates. These firms confirmed that the Resolution Plan conformed to the provisions of the Insolvency and Bankruptcy Code, 2016. The Tribunal emphasized that it should not substitute its view with the commercial wisdom of the CoC and RP unless the plan contravenes the law or public interest.

5. Binding nature and implementation of the Resolution Plan:
The Tribunal directed that the Resolution Plan shall be binding on the Corporate Debtor, its employees, members, creditors, guarantors, and other stakeholders as per Section 31(1) of the Insolvency and Bankruptcy Code, 2016. The Tribunal also directed the RP to forward all records relating to the Corporate Insolvency Process and Resolution Plan to the Board to be recorded on its database. The moratorium order passed earlier ceased to have effect, and the RP was instructed to send a copy of the order to all relevant parties and authorities.

Conclusion:
The Tribunal approved the Resolution Plan submitted by Atyant Capital India Fund-I, finding it compliant with the Insolvency and Bankruptcy Code and beneficial to the interests of the company. The order emphasized the binding nature of the plan on all involved parties and outlined the steps for its implementation and communication to relevant authorities.