9911796707
TMI Blog2018 (8) TMI 1617X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Bank of India u/s. 7 of the I & B Code for initiating Corporate Insolvency Resolution Process (in short, CIRP) as against M/s. Adhunik Metaliks Limited, the corporate debtor. Vide order dated 03/08/2017 the application filed by the State Bank of India was admitted and Mr. Sumit Binani was appointed as Interim Resolution Professional to carry out and perform such acts and deeds which are required under the provisions of the I & B Code. Mr. Sumit Binani's appointment as Resolution Professional has been approved by the Committee of Creditors (in short, CoC) in the first meeting held on 04/09/2017 by majority of 81.24% vote share and thereby Mr. Sumit Binani continues with the resolution process of the corporate debtor and ultimately succeeds in identifying a prospective resolution applicant for the takeover of the stressed assets of the corporate debtor and the resolution plan was got it approved by the CoC. 3. The Resolution Professional submits that he continues with the CIRP process as per the provisions of the Code and Regulations and was in receipt of l (one) Resolution Plan from Edelweiss Asset Reconstruction Company Ltd. upon the basis of issuance of publication of an adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erified the Resolution Plan and it is in accordance with the requirements of Section 30(2) of the I & B Code read with Regulations 37 and 38 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (in short, CIRP Regulations) and filed the plan with certificate as provided under CIRP Regulation 39(4). 6. When this application came up for consideration 2 (two) applicants come forward objecting the approval of the Resolution Plan. One of the objector is MSTC Limited, a Public Sector Undertaking under the Government of India having its registered office at Kolkata. MSTC Limited (in short, MSTC) filed CA.(IB) No.614/KB/2018. MSTC is doing business of facilitating transactions of import and export, like, iron ore, coke, coal, etc. The applicant contends that it has incurred a total of Rs. 343.43 crores for facilitating the procurement of raw materials during the CIRP period, out of which only Rs. 244.12 crores has been paid. All the raw materials lying stored as on date and valuing at Rs. 99.31 crores having procured subsequent to the Insolvency Commencing Date (in short, ICD). Statement of stock is produced along with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would continue to suffer great hardship on account of non-payment of wages and other dues of the workmen. Upon the said contentions the applicant prays for immediate disbursement of wages as prayed for before the approval of the resolution plan. However, not raised any objection against the approval of the Resolution Plan. 8. Resolution Professional objected both the said applications and filed reply affidavit in opposition denying the allegations levelled in CP 614 of 2018 and further submits that the claim of workmen for sanctioning increment during the CIRP period is not maintainable and disbursement of admitted wages is to be paid by the resolution applicant within 30 days of approval of the resolution plan. 9. Referring to CA(IB) No. 595/KB/2018 filed by the workmen, Ld. Resolution Professional (RP) submits that the claim of the workmen regarding their wages has been admitted by him and if the Resolution Plan is approved immediately within 30 days the resolution applicant has to pay in priority the wages to the workmen and, therefore, there is no merit in contending on the side of the workmen that wages has to be disbursed before the approval of the Resolution Plan. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the MSTC already submitted its claim for an amount of INR 172.15 crores to the Resolution Professional vide its proof of claim dated 09/01/2018 and the Resolution Professional assessed the claim and admitted a sum of Rs. 165.09 crores as on the insolvency commencement date (ICD). Admittedly the corporate debtor has been availing raw material procurement facility from the applicant MSTC for purchase of iron ore, coke, coal etc. from vendors in abroad. Under this facility MSTC paid to the vendor directly against supply of above material to the corporate debtor. 11. According to the Resolution Professional, MSTC submitted its claim as operational creditor for an amount of INR 172.15 crores to the Resolution Professional by its proof of claim dated 09/01/2018. The Resolution Professional assessed the claim and admitted a sum of INR 165.09 crores as on the ICD less an amount of Rs. 18.5 crores which was disbursed to the applicant after which their pending claim stood at Rs. 146.59 crores. He further submits that in order to ensure continued supply of goods through MSTC Limited an advance amounting to a total of INR 56.72 crores out of the their admitted claim of INR 146.59 crores was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d different The amount due to the applicant pre-CIRP period certainly come under the definition of operational debt and amount due to the applicant post-CIRP period comes under the purview of resolution costs. Admitedly the applicant has lodged a claim with the RP claiming pre-CIRP dues from the corporate debtor. That being so the RP is only liable for the cost of goods the corporate debtor had taken from the MSTC during the CIRP period as the resolution cost. 14. At this juncture ld. Sr. Counsel for the MSTC submitted on the strength of Explanation (a) to Section 18(1), of the Code that MSTC is the owner of the property and here moratorium declared u/s. 14 not applicable to the goods in dispute. It read as follows:- "18(1) The interim resolution professional shall perform the following duties, namely:- xxx xxx xxx Explanation. - For the purpose of this sub-section, the term "assets " shall not include the following, namely:- (a) assets owned by a third party in possession of the corporate debtor held under trust or under contractual arrangements including bailment; " 15. Referring to Explantion of Section 18 an attempt was made on the side of the applicant that the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution Professional submits that all the mandatory requirement as per the Code and Regulations has been complied with. Regulation 37 of the C1RP Regulations provide for the measures required for implementing the resolution plan. The Resolution Professional has certified under Regulation 39(4)(a) that the contents of the Resolution Plan meets all the requirements of the Code and Regulation. Nobody other than the above referred 2(two) objectors come forward challenging the application filed by the Resolution Professional for approving the Resolution Plan. Schedule 2 of the plan highlights certain reliefs and concessions seems to have approved by the CoC. It is submitted by the ld. RP that the concessions referred to the Schedule 2 is not condition precedent to the implementation of the resolution plan. On a bare reading of the Plan it is understood that the Resolution Plan which has been approved by vote share of 99.94% by the CoC is in compliance with the provisions of the Code and Regulation and conforms to all the requirements as have been specified in the I&B Code. 19. The Resolution Applicant namely Liberty House Group Pte. Ltd. is a company incorporated under the laws of Singa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
