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TMI Blog2019 (5) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... d shall be binding on the corporate debtor, its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan. The resolution applicant shall, pursuant to the resolution plan approved under sub-section (1), obtain the necessary approval required under any law for the time being in force within a period of one year from the date of approval of the resolution plan by the Adjudicating Authority under sub- section (1) or within such period as provided for in such law, whichever is later. - M. A. No. 515 of 2018 in C. P. No. 689 /IB/ 2017 - - - Dated:- 23-1-2019 - CH. MOHD. SHARIEF TARIQ Judicial Member For the resolution professional : T. Ravichandran and Ms. D. Elavarasi For the operational creditor. : Rohan Rajeskaran For the resolution applicant. : Shankarnaryanan , Senior Counsel ORDER Miscellaneous Application No. 515 of 2018 has been filed in C. P. No. 689/IB/CB/2017 on September 28, 2018 by the resolution professional, viz., Mr. Ravindra Beleyur, under section 30(6) of the Insolvency and Bankruptcy Code, 2016 (in short the I and B Code, 2016 ). The prayer made by the resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 12 of the I and B Code, 2016 for a further period of 90 days from July 13, 2018 beyond 180 days vide order dated July 11, 2018 on M. A. No. 219 of 2018 filed by the resolution professional. 6. As per section 25(2)(h) of I and B Code, 2016, the resolution professional has invited EoI calling for the resolution plan for the corporate debtor from the prospective resolution applicants. Pursuant to the publication for invitation of EoI , the resolution professional received two resolution plans from the proposed resolution applicants viz., M/s. Acme Chem Ltd. and M/s. Nitrex Chemicals India Ltd. The resolution professional has placed the plans submitted by the resolution applicants before the CoC for deliberations. The CoC, after deliberations and discussions, asked the resolution applicants to raise their offers on or before September 4, 2018. After much deliberation and on the basis of the evaluation matrix and other parameters fixed, the CoC unanimously resolved to accept the resolution plan submitted by M/s. Acme Chem Ltd. and the resolution plan submitted by M/s. Nitrex Chemicals India Ltd. was rejected. The resolution applicant viz., M/s. Acme Chem L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that under paragraphs 7.2B and 8 of the resolution plan, the resolution applicant had sought the following reliefs and concessions from the Adjudicating Authority and the Government Authorities which are noted as follows : 7.2 On and from the effective date A. All existing directors of the company shall be deemed to have resigned and vacated their office, and the board of directors of the company shall be reconstituted by the resolution applicant. All powers of the board of directors of the company shall be restored, and the reconstituted board of directors shall be entitled to exercise all powers of a board of directors under the applicable laws. B. All existing employees of the company shall be deemed to have resigned and new employees shall be appointed by the resolution applicant . . . C. .. D. . 8. Other terms and conditions 8.1 The resolution applicant seeks the following reliefs and con cessions from the National Company Law Tribunal and from the other relevant Government authorities. A. Exemption from compliance of reduction of share capital and preferential allotment gui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorized share capital of the cor porate debtor. O. To release all encumbrances, charges, security interests etc., created on the assets of the corporate debtor on the effective date. P. To settle all legal proceedings and other contingent liabilities, irrevocably and unconditionally other than those explicitly covered in the resolution plan, no other person shall be eligible to receive any amount from the corporate debtor, either on account of unverified claims, legal proceedings, etc., Q. Revocation of all power of attorneys provided to any person by the corporate debtor as on the effective date. R. Terminate without liability all outstanding negotiable instru ments issued by corporate debtor or any other person on behalf of corporate debtor. S. Extinguish all liabilities in relation of corporate guarantees, indemnities, etc., provided by the corporate debtor as on the effective date. T. The manufacturing facility of ML (corporate debtor) at Edayar is adjacent to the manufacturing facility of Merchem India P. Ltd. (MIPL), which is a group company of corporate debtor and has pro vided its corporate guarantee to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the relevant authorities/agencies for (a) exemption from levy of penalty, if any, imposed by such relevant authority/agencies on the company, for non-compliance or delay in disposal of the effluent and hazardous wastes such as Process Resi due, ETP/TEE Sludge/Used Oil etc., which got accumulated due to negligence/non-operation/non-compliances in relation to the Kochi and Panoli Units of the company (b) a one-time permission to the company after handover of the operations of the company to the resolution applicant, to dispose off such waste materials such as pro cess residue, ETP/TEE sludge/used oil, etc., in its Kochi and Panoli Units which might have been generated during the regime of old management. 8. After hearing the counsels for the resolution professional and CoCs in detail and perusal of the pleadings and the resolution plan submitted by the resolution applicant, viz., Merchem Ltd., this Authority vide order dated December 13, 2018 sought explanation in relation to the resolution plan on the following issues :- Non-recording of the reasons pertaining to the viability and fea sibility of the resolution plan by the CoC ; Absence of ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an assessment with regard to the requirement of the employees and will give priority to engage those who have been working with the corporate debtor on fresh terms and conditions. 12. It is further stated that the CoC verified and confirmed that among the same class of creditors, there is no discrimination in terms of the I and B Code, 2016, and therefore, it is in line with the judgment of Binani Industries Ltd. v. Bank of Baroda [2019] 5 Comp Cas-OL 28 (NCLAT), the CoC expressed its view that the resolution plan provides for repayment of the liability of the operational creditors at a value not less than the amount to be paid to the operational creditors in the event of a liquidation of the corporate debtor as per section 53 of the I and B Code, 2016. 13. The resolution passed by the CoC in its tenth meeting held on December 28, 2018 is as follows :- Resolved that the resolution plan submitted by Acme Chem Ltd., for acquisition of Merchem Ltd., for a total consideration of ₹ 115.2520 crores be and is hereby approved since :- It is above the liquidation value ; It is considered feasible and viable by CoC even if the Adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th typed set to the application meets the requirements of section 30(2) of the I and B Code, 2016 and regulations 37, 38, 38(1A) and 39 of the IBBI (CIRP) Regulations, 2016. The resolution plan is also not in contravention of any of the provisions of section 29A, Therefore, this Authority in exercise of the powers conferred under sub- section (1) of section 31 of the I and B Code, 2016, approves the resolution plan annexed with M. A. No. 515/IB/2018 filed in C. P. No. 689/IB/2017 by granting concession/exemptions as enumerated under paragraph 7.2 (A and B), paragraph 8.1 (A, N, O, P, Q, R, S), paragraphs 8.3, 8.5, 8,6, 8.7, 8.8 and 8.9 of the resolution plan. The resolution plan approved shall be binding on the corporate debtor, its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan. 16. The resolution applicant shall, pursuant to the resolution plan approved under sub-section (1), obtain the necessary approval required under any law for the time being in force within a period of one year from the date of approval of the resolution plan by the Adjudicating Authority under sub- section (1) or within such period as provided f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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