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TMI Blog2018 (7) TMI 1855X X X X Extracts X X X X X X X X Extracts X X X X ..... nsu Jyoti Mukhopadhaya, The Appellant SREI Infrastructure Finance Limited (Financial Creditor) filed an application under Section 60(5) of the Insolvency and Bankruptcy Code 2016 (hereinafter referred to as "I & B Code") for direction to Resolution Professional of Deccan Chronical Holdings Limited ('Corporate Debtor') [in C.P (IB) No. 41/7/HDB/2017] to allow the Appellant as a member of the Committee of Creditors and to participate and vote in the said meeting. 2. The Resolution Professional refused to allow the appellant as member of the Committee of Creditors on the ground that the appellant is "related party" in relation to the Corporate Debtor. The aforesaid decision has been upheld by the Adjudicating Authority (National Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd marked as 'Annexure-A4'. 8. That as per records of Corporate Debtor and also available on MCA Portal, e-form PAS-3 (i.e. Return of allotment) was filed with the Registrar of Companies following are the details of said the allotment: Date of allotment 08/09/2014 Number of securities allotted 66,037,735 Nominal amount per security (in Rs.) 2.00 Total nominal amount (in Rs.) 132,075,470.00 Amount to be treated as paid up (in Rs.) 2.00 Premium amount per security (if any) (in Rs.) 1.18 Total premium amount (if any) (In Rs.) 77,924,527.00 Consideration for which such securities have been allotted Conversion of Loans Value ( In Rs.) 209,999,997 That as per the said e-form PAS-3 following is the Capital structure of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suant to orders of Hon'ble DRT-1 dated 24th December 2014, pursuant to Board Meeting date4d 16th January 2014 and meeting of preferential issue committee dated 8th September 2014, DCHL has issued and allotted 6,60,37,735 equity shares of Rs. 2 each at a premium of Rs. 1.18 per share to SREI Infrastructure Finance Limited. Also, it was stated in the intimation letter that the allotment is subject to the provisions of Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations 2009, Listing Agreement signed with the Bombay Stock Exchange, National Stock Exchange of India Limited, guideless issued by Reserve Bank of India and other applicable laws." 5. Section 5(24) defines related party in relation to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a holding, subsidiary or an associate company of the corporate debtor, or a subsidiary of a holding company to which the corporate debtor is a subsidiary; (j) any person who controls more than twenty per cent. of voting rights in the corporate debtor on account of ownership or a voting agreement; (k) any person in whom the corporate debtor controls more than twenty per cent. of voting rights on account of ownership or a voting agreement; (l) any person who can control the composition of the board of directors or corresponding governing body of the corporate debtor; (m) any person who is associated with the corporate debtor on account of- (i) participation in policy making processes of the corporate debtor; or (ii) having more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been reiterated in the Balance Sheet as on 31st March 2017 and the Balance Sheet as on 18th July 2017. 9. The Balance Sheet has been produced by the Resolution Professional but we find that he has failed to notice the note below the Balance Sheet which was not recognised as allotment of equity shares in favour of the appellant. 10. Neither the Resolution Professional or the Committee of Creditors nor the Adjudicating Authority can go beyond record of the Corporate Debtor including the Balance Sheet as on 18th July 2017. 11. The appellant has disbursed the amount of Rs. 240 Crores in favour of Corporate Debtor in consideration of time value of money as the Corporate Debtor borrowed the loan amount for its business is not in dispute. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor', being illegal is to be ignored. 15. The appellant will take part in the meeting of the 'Committee of Creditors' but will not raise unnecessarily any objection, if resolution plan already approved by the 'Committee of Creditors'. If such plan is the best out of the rest, viable and feasible, and taken into consideration all factors under Section 30(2) and if the Resolution Applicant is not ineligible under Section 29(A), the appellant will concur with the rest of the members of the 'Committee of Creditors' without raising any objection. However, if there is some better Resolution Plan, the appellant may bring it to the notice of the rest of the 'Committee of Creditors'. 16. For the purpose of counting the total period of 'corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X
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