2023 (9) TMI 192 - AT - Insolvency and Bankruptcy

Seeking consolidation of the Corporate Insolvency Resolution Process (CIRP) in relation to both the Companies (RISPL and RPPL). Whether the appellant is an operational creditor under the IBC even though it was a purchaser ? - HELD THAT - The Hon ble Apex Court in the Judgment Consolidated Construction Consortium Limited Vs. Hitro Energy Solutions Pvt. Ltd. 2022 (2) TMI 254 - SUPREME COURT concluded that the Appellant is an Operational Creditor under the IBC, since an Operational Debt will include a debt arising from a Contract in relation to the supply of goods and services from the Corporate Debtor - In the instant case, it is an admitted fact that RPPL is a holding Company and RISPL is a Subsidiary Company providing Operation and Maintenance Services to the Wind Energy Turbines / Wind Energy Generators monitored and held by the Holding Company RPPL to its customers. This Tribunal is of the earnest view that these Appellants fall within the ambit of the definition of Operational Creditors as defined under Section 5 (20) of the Code and therefore, these Appeals are maintainable. Whether the businesses of RPPL and RISPL are intertwined and integrated and whether the criteria required for Consolidation of these two CIRPs is met? - HELD THAT - A perusal of the material on record shows that there is no rebuttal by RPPL regarding the issues of interlinked finances , common assets , common liabilities and common directors . This Tribunal is conscious of the fact that the Ministry of Renewable Energy has clearly specified in its Regulations that the manufacturer has to provide the O M Services as well. The Resolution Professional of RISPL has submitted that all the O M Equipment in possession of RISPL is actually owned by RPPL; that despite the O M Agreement, RPPL continues to have obligation; that RISPL has received huge sums of liquidated damages every year solely because RPPL has not refurbished the failed Wind Energy Generators on time; that RPPL has created another Subsidiary called ROMSL and there are some liabilities. From the Report of the Mediator, it is clear that at the outset, there was unanimity that the Resolution Plan must be a single one for both the Companies and the efforts must be to identify a single entity for purchase of both the Companies . This unanimity was arrived at by the Mediator after prolonged sessions with the Resolution Professionals and the CoCs of both the Companies. It was also observed by the Mediator in the Report that attempts were made to formulate a course of action through appropriate Resolution Plans that could be submitted to the CoCs, but there were same reservations. This Tribunal is of the considered view that the financial revival of one Company / Corporate Debtor will be closely linked to the Financial Health of the other Company if there is intricate Financial relationship between the two having the same set of Directors. Then it stands to reason that such Units should be looked at jointly - since the Order of Admission is not under challenge before this Tribunal, this Appellate Tribunal is not adjudicating on this issue at this point of time. This Tribunal is of the considered view that Consolidation of the CIRPs be allowed and the Impugned Order of the Adjudicating Authority dated 01/11/2021 is set aside - Appeal disposed off.

Issues Involved:
1. Whether the Appellants qualify as 'Operational Creditors'.
2. Whether the businesses of RPPL and RISPL are intertwined and integrated.
3. Whether the criteria for 'Consolidation' of CIRPs is met.
4. Whether the 'Adjudicating Authority' has the jurisdiction to order consolidation of CIRPs.

Summary:

1. Qualification as 'Operational Creditors':
The Hon'ble Apex Court in 'Consolidated Construction Consortium Limited Vs. Hitro Energy Solutions Pvt. Ltd.' established that an 'Operational Debt' includes a claim arising from a contract in relation to the supply of goods and services from the Corporate Debtor. The appellants, being purchasers of goods and services from RPPL and RISPL, fall within the ambit of 'Operational Creditors' as defined under Section 5(20) of the Code.

2. Intertwining and Integration of Businesses:
RPPL is the holding company, and RISPL is its wholly-owned subsidiary, created for operational convenience. RISPL is dependent on RPPL for servicing generators and funds. The businesses are integrated, with RPPL retaining technology and manufacturing capabilities while RISPL handles operations and maintenance. The Ministry of New and Renewable Energy mandates that manufacturers provide O&M services, reinforcing the interconnectedness of the two companies.

3. Criteria for 'Consolidation' of CIRPs:
The criteria for consolidation, as established in 'State Bank of India vs. Videocon Industries Ltd.' and 'Radico Khaitan Ltd. vs. BT & FC Pvt. Ltd.', include common control, common directors, common assets, common liabilities, interdependence, and intricate links. The businesses of RPPL and RISPL meet these criteria, as evidenced by shared directors, intertwined finances, and integrated operations. The Mediator's report also supported a single resolution plan for both companies to maximize value.

4. Jurisdiction to Order Consolidation:
Sections 60(2) and 60(5) of the IBC provide the 'Adjudicating Authority' with the jurisdiction to entertain and dispose of any application or proceeding by or against the corporate debtor or its subsidiaries. The inherent powers under Rule 11 of the NCLT Rules, 2016, allow the Tribunal to make necessary orders to meet the ends of justice. The Tribunal concluded that consolidation is not an exercise of 'Equity Jurisdiction' but a legal principle intended to maximize asset value and ensure a viable resolution.

Conclusion:
The appeals are allowed, and the 'Adjudicating Authority's' order dated 01/11/2021 is set aside. The Tribunal directed the consolidation of the CIRPs of RPPL and RISPL, emphasizing the scope and objective of the IBC, 2016, to maximize asset value and ensure a viable resolution.

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