2021 (6) TMI 1012 - Tri - Insolvency and Bankruptcy

Legality of approved Resolution Plan - NCDs fixed deposits etc. - claims of more than 70,000 Fixed Deposit Holders (including individuals), Lakhs of Employees of Uttar Pradesh State Power Sector Employees Trust, Board of Trustees of Uttar Pradesh Power Corporation Contributory Provident Fund Trust, investment by Capgemini Business Services India Ltd., Employees Provident Fund Trust - distribution to public depositors, Fixed Deposit holders, subscribers to NCDs - HELD THAT - The details of claim of all the Applicants in the form of NCDs fixed deposits etc., claims admitted, amount payable were discussed in detail in the Resolution Plan approved - With regard to the claims of more than 70,000 Fixed Deposit Holders (including individuals), Lakhs of Employees of Uttar Pradesh State Power Sector Employees Trust, Board of Trustees of Uttar Pradesh Power Corporation Contributory Provident Fund Trust, investment by Capgemini Business Services India Ltd., Employees Provident Fund Trust, other claimants falling in the similar category, and we are of the considered view that considering the number of small investors running into lakhs, senior citizens, who had deposited their hard earned savings, have to meet various expenses especially in this Covid-19 Pandemic situation, loss of jobs to number of depositors, to meet marriage, education expenses, other essential needs the employees of the PF Trust which is the money they would get at the time of/after superannuation. Since FSP is a different nature of company than a normal Corporate Debtor, where in thousands, Lakhs of Small Investors invest their funds for a reasonable interest income to take care of their future needs - It is generally considered that investment in Fixed Deposit, NCDs are low risk investment than investing in Equity Shares therefore these small investors should not be put to more risk, take more hair cut than the stronger Financial Institutions viz Banks, Financial Institutions and accordingly for this limited purpose we request, suggest the CoC to reconsider their distribution method, distribution amongst various members of CoC within two weeks from today and report the same to this Adjudicating Authority. Decision on distribution to this public depositors, Fixed Deposit holders, subscribers to NCDs - HELD THAT - There is no additional monetary obligation for the Successful Resolution Applicant to pay anything more than what it has committed in the Resolution Plan i.e an amount of ₹ 37,250 Crores. It is only an inter se distribution of resolution money amongst various creditors. Therefore, with regard to the manner of distribution, the method of distribution amongst various creditors viz Public Depositors, Fixed Deposit Holders, NCD Holders, Small Investors, Employees Provident Fund Trust etc, the CoC is suggested to reconsider the same so that lakhs of small investors would be benefited - Further while directing and observing so, we find support from the decision of NCLT Ahmedabad Bench in the matter of Standard Chartered Bank and State Bank of India V/s Essar Steel Limited 2019 (3) TMI 1706 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD which has been confirmed by the Hon'ble Supreme Court of India wherein the Adjudicating Authority has directed to the CoC to consider the distribution mechanism for giving more apportionment Amount to the Operational Creditors and unsecured Financial creditors. The CoC is requested to reconsider their distribution method, distribution amongst various Members of CoC within two weeks and report the same to this Adjudicating Authority - application disposed off.

Summary

Issues:
1. Declaration of Resolution Plan as illegal and violative of the Insolvency and Bankruptcy Code.
2. Refund of Fixed Deposits with interest.
3. Benefit of recoveries and contributions under specific provisions.
4. Repayment of matured deposits to applicants.
5. Restraining Respondent from granting loans or credit facilities.
6. Pre-mature repayments in case of death/critical illness.
7. Release of amounts due to the Applicant by Financial Service Provider.
8. Distribution method and share money allocation among creditors.

Analysis:

1. The main prayers in the applications sought to declare the Resolution Plan as illegal and violative of the Code, quash the plan, refund Fixed Deposits with interest, and ensure recoveries benefit the creditors. The Tribunal considered the claims of various applicants, including Fixed Deposit Holders, employees, and small investors, emphasizing the need to protect their interests and ensure a fair share of the Resolution Plan.

2. The Tribunal acknowledged the risk profile of Fixed Deposits and NCDs as low-risk investments, urging the Committee of Creditors (CoC) to reconsider the distribution method to provide a fair share to small investors. It recommended enhancing the payment percentage for public depositors and Fixed Deposit holders, aligning it with the level of Secured Financial Creditors without imposing additional monetary obligations on the Resolution Applicant.

3. Referring to precedents, the Tribunal highlighted the importance of equitable distribution among creditors, citing a case where the CoC was directed to consider a fair distribution mechanism for operational and unsecured financial creditors. It emphasized the need for CoC to revisit the distribution method to benefit small investors and public depositors.

4. The Tribunal drew attention to a Supreme Court ruling stating that the Adjudicating Authority cannot modify an approved resolution plan but can suggest amendments for reconsideration. Based on this, the Tribunal recommended that the CoC reconsider the distribution method within two weeks and report back to the Adjudicating Authority.

5. In conclusion, the Tribunal disposed of the applications, urging the CoC to review the distribution method to ensure a fair and increased share for small investors, public depositors, and Fixed Deposit holders. The decision aimed to protect the interests of the numerous small investors and depositors affected by the Resolution Plan, emphasizing the importance of equitable distribution among creditors.