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TMI Blog2017 (10) TMI 1444X X X X Extracts X X X X X X X X Extracts X X X X ..... esolution plan under section 30 of I B Code. out of abundant precaution Form NO.6 had been filed to be considered for granting permission to carry out the CIRP from the stage it was left before BIFR and other Authorities due to repeal of the SICA Act. The sanctioned SS- 08 scheme thus to be considered as Approved Resolution Plan (ARP). Considering the provisions of section 10 of The Code that the Debtor Company had in fact committed a default in not repaying the outstanding Debt to certain patties, the Petition under consideration deserves to be admitted - commencement of the Corporate Insolvency Resolution Process is hereby declared with effect from the receipt of this Order. The IRP is hereby directed that, the Scheme Sanctioned under SICA shall be deemed to be an Approved Resolution Plan as prescribed UIs, 31 (1) of the I B Code, 2016. However, rest of the compliances are to be made as per the provisions of the Code, some Of them specified hereinabove. - IBC No. CP 1054 and MA 177 of 2017/1&3C/NCLT/MB/MAH/2017 - - - Dated:- 13-10-2017 - Bhaskara Bantula Mohan And M.K.Shrawat, JJ. For the Petitioner(s): Mr. Rohaan Cama, Counsel with Mr. Sanjay Udeshi and Mr. Darsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by BIFR on 07.09.2007. A Scheme was sanctioned (SS-08) for revival by BIFR on 28.05.2008 calling the meeting of all the Creditors for taking consent of the majority of the Creditors. Certain promoters have infused substantial funds into the Company for payment towards Creditors and Other stake holders. Pursuant to the said SS-08 Scheme the Company was granted several concessions for repayment of outstanding dues viz. Creditors, CBDT and other Agencies. Importantly it is highlighted that pursuant to the said SS-08 Scheme the Company had made payment to the tune of e150.71 crores out of the total liability of 52.84 crores. According to the Petitioner, about 98.61% payment was made against the total outstanding Debt. Progress report implementing the Scheme was submitted with IDBI (OA) and BIFR. 3.1 Our Attention has been drawn on an important fact that due to certain non- compliance of sanctioned Scheme SS-08, the concessions were not granted by few authorities. The two Government Authorities have not granted waiver of interest and penalty viz. Sales Tax Department of Maharashtra and PF Department. As a result, the sanction Scheme could not be totally complied with, hence in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure it is worth to reproduce a portion of Notification SC 3568 (E) and SO 3569 (E) brought into force the Sick Industrial Companies (Special Provisions) Repeal Act 2003 with effect from 01.12.2016 read with SO 1683 (E) dated 24.05.2017:- And, whereas, difficulties have arisen regarding review or monitoring of the schemes sanctioned under sub-section (4) or any scheme under implementation under sub-section(12) of section 18 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) in of the repeal of the Sick Industrial Companies (Special Provisions) Act, 1985, substitution of clause (b) of section 401 the Slick Industrial Companies (Special Provisions) Repeal Act, 2003 and omission of sections 253 to 269 of the Companies Act, 2013; Now, therefore, in exercise of the powers conferred by the sub- section (I) of the section 242 Of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), the Central Government hereby makes the following Order to temove the above said difficulties, namely 1. Short title and commencement. -(1) This Order may be called the Insolvency and bankruptcy Code (Removal of Difficulties) Order, 2017. 2. In the Insolvency and Bankruptcy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bankruptcy Code, 2016 in pursuance to the provisions of the Insolvency and Bankruptcy Code (Removal of Difficulties) Order, 2017; C) further, the Modified Draft Rehabilitation Scheme seeking certain minor modification as per the directions of the Hon'b/e BIER which is approved and recommended by the Operating Agency i.e. IDBI and submitted before the Hon'b/e BIER a copy whereof is also annexed at Exhibit 'F hereto be treated as the Resolution Plan in terms of section 30 of the Insolvency and Bankruptcy Code, 2016; d) after the aforementioned Modified Draft Rehabilitation Scheme approved and recommended by the Operating Agency i.e. IDBI is treated as the Resolution Plan in terms of section 30 of the Insolvency and Bankruptcy Code, 2016, the said MDRS be approved in terms of section 31 of the Insolvency and Bankruptcy Code, 2016; e) in the alternative to the above and jn case the Hon'b/e Tribuna/ is of the view that the MORS approved and commended ty the Operating Agency ought not to be treated as the draft Resolution Plan under section 30 of the Insolvency and Bankruptcy Code, 2016, the Application fi/ed by the App/icant under Section 10 of the Insolvency a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of The Code within 180 days the Scheme is to be proposed, however the Management of the Company vests With the IP immediately on commencement. (d) Measures for revival of stressed Company are almost identical under the provisions of SICA Act and under IB Code. (above illustrations are not exhaustive but only demonstrative ) 5.1. The above comparison thus leads us to a conclusion that if there are certain proceedings or measures have already been taken place under the SICA Act or by an order of BIFR or AAIFR, then those Resolutions or Directions are not to be ignored, rather, helpful for speedy resolution under the Code, because the intention and the process involved can be said to be akin to each other. This view has also been expressed in the case of Hyderabad Abrasives Minerals Vs. Andhra Cements Ltd. (2003 42 SCL 748 AP), as follows :- 13. As seen from the above synopsis, a scheme which has been sanctioned and made enforceable after duty complying with various provisions of Section 18 of SICA, can even be modified by BIFR in accordance with Clause (b) of Sub-section (3) Of Section 18 Of SICA. Therefore, the implementation of rehabilitation scheme is a continuo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of SICA to BIER. Under these circumstances, one of the questions agitated for considered by this Coutt was whether on the registration of a reference, the Division Bench of the High Coutt could pass orders in an appeal against an interim order passed by the Company Court. 23. Another Situation is where a winding-up order passed by the Company Court but it is stayed in appeal. In Rishab the company was ordered to be wound-up but his order was stayed by the Division Bench of the High Court concerned. Thereafter the company made a reference to BIFR under Section 15 of SICA. ..leave no doubt in our mind that the effect of the section would be applicable even after the winding-up order is passed as no proceeding even thereafter can be proceeded with further under the Companies Act. The High Court appears to have not taken note of the aforesaid words i.e. to be proceeded with further. AS the impugned judgment is based upon wrong assumption or the provision Of law and comp/ete/y ignoring the vita/ words noticed hereinabove the same cannot be sustained. '27. From the above it is quite dear that different situations can arise in the process of winding up a company under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be adversely affected by this Order. 5.5 We finally conclude that considering the provisions of section 10 of The Code that the Debtor Company had in fact committed a default in not repaying the outstanding Debt to certain patties, the Petition under consideration deserves to be admitted . 6. Since the Petition is admitted hence the IRP viz. Mr. Anish Kanodia, B-9/10, Ekta Apartment, LBS MARG, Cpp: Santoshi Mata Mandir, Mulund-West, Mumbai-400080, Email id: [email protected], Registration No.9181BBI/IPA001/IP- 00650/2016-17/2131 is hereby appointed. 7. The provisions of section 14 is commenced henceforth and the Moratorium shall take place as under : (a) On enforcement of Moratorium certain prohibitions are applicable such as Institution of any Suit before a Court of Law, transferring of any Asset of the Debtor, encumbering any rights over the assets of the Debtor, however, the supply of essential goods or services to the Corporate Debtor shall not be terminated during Moratorium period. It shall be effective till completion of the Insolvency Resolution Process or until the approval of the Resolution Plan as prescribed under section 31 of The Code. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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