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TMI Blog2019 (9) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority to bring to the notice of this Tribunal any deviation from the resolution plan including in relation to the losses, which may have occasioned due to the conduct of the promotors of the Corporate Debtor prior to the initiation of the CIRP as against it - The moratorium imposed under Section 14 shall cease to have any effect henceforth. - IA No. 44/JPR/2019, IA No. 57/JPR/2019, IA No.58/JPR/2019, IA No. 58/JPR/2018, IA No. 63/JPR/2019, in IB No. 571 (ND)/2017 And TA No. 3712018 - - - Dated:- 7-6-2019 - MR R. VARADHARAJAN, Member (JUDICIAL) For The APPLICANT/CORPORATE DEBTOR : Rakesh Kumar Yadav, Manager of OBC, Prateek Kasliwal, Adv., Vinod Kr. Chaurasia, CA And Madhusudan Sharma, RP For The APPLICANT/FINANCIAL CREDITOR : Susshil Daga, Adv., Sandeep Jain, Adv. And Prateek Kedawat ORDER IA No. 44l JPR/2019 1. This is an application preferred by the Resolution Professional of the Corporate Debtor for approval of resolution plan filed under Section 30(6) and Section 31 read with Section 60(5) of Insolvency and Bankruptcy Code, 20t6 and the Attendant regulation being Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 25(2)(h), applications were invited from prospective Resolution Applicants for EOI to submit resolution plans for the Corporate Debtor and it was also published in Form-G in the Economic Times (English) and Seema Sandesh (Hindi) on 18.08.2018 as well as duly uploaded in the website of IBBI. 6. In light of the advertisement calling for expression of interest, it is stated that three EOIs were received till the last date, namely, 03.09.2018 from the following parties, namely,- a) Rahul Aneja and Pradeep Kumar Dawra Consortium b) Rahul and Ruchika Consortium c) Sukh Shanti Estates Pvt. Ltd. and that the CoC deliberated on the above three EOIs in its meeting held on 11.09.2018. 7. In the fourth meeting held on 18.10.2018, it is stated by the Resolution Professional that M/s. Sukh Shanti Estates Pvt. Ltd. did not respond to the request and reminders for documents and details as required under Section 29(A) of IBC, 2016 as well as other details as were required. In the circumstances, the EOI of Sukh Shanti Estates Pvt. Ltd. was rejected. In light of rejection, request for resolutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Resolution Applicant and the CoC a final Resolution Plan consisting of the revised resolution plan dated 25.12.2018 and second dated 13.01.2019 was put forth and upon consideration by the CoC was approved in the 9th CoC held on 30.01.2019. 12. The salient features of the resolution plan have been brought forth in paragraph 18 of the application, which is reproduced hereunder: - That the Resolution Plan provides for payment as per the table appended hereinafter: Sr. No. Particulars Amount (In Rs. Lakh) Timelines* 1. CIRP Cost 15 Within one month 2. Operational Creditors other than related parties including to those who did not submit claim 156 Within two months 3. Secured Financial Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution plan has been given in Paragraph 19 which for ready reference as reproduced hereunder: - The amount provided for the stakeholders under the Resolution Plan is as under: (Amount in Rs. Lakh) Sr. No. Category of Stakeholder* Amount Claimed Amount Admitted Amount Provided under the Plan# Amount Provided to the Amount Claimed(%) 1. Secured Financial 423 361 361 100% a Creditors b Interest to Secured Financial Creditors - 18 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 849 687 712 15. In paragraph 26 of the application, it is brought forth by the RP that the Resolution Applicant meets the eligibility in the net worth criteria of ₹ 5 Crores for submission of EOI and the resolution plan in terms of Section 25(2)(h) of IBC, 2016. The resolution applicants, it is stated has also provided an affidavit confirming their eligibility to submit the resolution plan under Section 29A of the IBC, 2016 pursuant to Section 30(1) of IBC, 2016. 16. It is further stated by the Resolution Professional that the contents of the said affidavit are in order in view of Corporate Debtor being a small-scale industry unit. It is averred to this effect that certificate has also been produced from the relevant authority thereby being eligible to claim exemption from the application of clause (C) of Section 29(A) in light of provisions of Section 240(A) of the IBC, 2016. The application goes on to also state that the resolution applicant are members of Board of Corporate Debtor whose powers stands suspended and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essional and in this connection it is pointed out from the individual reply filed to IA Nos. 57/JPR/2019 that despite email communications dated 20.06.2018, 29.08.2018 and 02.09.2018 wherein repeated request was made to the applicants/Financial Creditors to provide any agreement or document in support of the rate of interest as agreed between the applicants on the one hand and the CD on the other, no evidence has been submitted with regard to the agreed rate of interest which is sought to be claimed at the rate of 18 per cent per annum. 20. It is also pointed out that varying rates of interest had been charged and that in relation to the payments of interest as claimed by the applicants/Financial Creditors, since 31.03.2013 no such claim has been filed before any legal forum save, in the application filed before this Tribunal for initiation of the CIRP as against the Corporate Debtor. 21. In view of the applicability of Limitation Act to IBC, 2016 and since the said claim in relation to interest is beyond the three years period, the claim for interest has not been admitted by the RP and that the same is justified. 22. It is also brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is evident that the accounts have not been declared as wilful defaulters. As already evident from the preceding paragraphs the resolution professional has brought forth that the conditions laid down of CoC in relation to minimum requirements for filing the resolution plan as prescribed under Section 25(2)(h) has been duly complied with by the resolution applicant. 26. From the resolution plan it is evident that the RA proposed to deal in relation to CIRP cost, payment to creditors as well as the sources of funds in relation to the funding of the resolution plan has been described in detail and which is of relevance is reproduced hereunder from the resolution plan. Payment of CIRP Cost In compliance to the provisions of Section 30 of IBC read with Regulation 38 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulation, 2016 resolution applicant will make payment of CIRP cost in priority to any other class of creditors. Further, if CIRP cost is pending at the time of approval of plan also will be paid immediately. i. Payment to creditors Full paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of approval of the resolution plan thereafter payment will be made in half yearly instalments starting from 30.09.2019. Repayment summary schedule of amount due to Financial Creditor (Unsecured) Date With in six months 31.03.2020 30.09.2021 31.03.2022 30.09.2022 Amount 5,00,000 5,00,000 5,00,000 5,00,000 5,50,000 Date 30.03.2023 30.09.2023 31.03.2024 30.09.2024 31.03.2025 Amount 5,50,000 6,00,000 6,00,000 6,36,000 6,36,000 Total liabilities taken over and Sources ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in first three months) Amount (in lakhs) 1. CIRP Cost 3 2. Operational Creditors other than related parties including unclaimed amount 156 3. Secured financial Creditors 361 4. Bank interest 18 Total(A) 538 Sl. No. Particulars -Sources of funds (First three months post approval) Amount (in lakhs) 1. Funds already generated during CIRP 107 2. Fresh infusion by Resolution Applicants in three months 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which shall comprise of the following Directors; 1. Mr. Rahul Aneja 2. Ms. Ruchika Aneja Resolution applicant proposes to appoint senior level executives, wherever needed to turn around the business of the Corporate Debtor. Implementation and Supervision of the Resolution Plan Resolution applicant propose to pay CIRP cost, operational creditors, secured financial creditors and equity shareholders within three months of the approval of resolution plan. Unsecured financial creditors other than resolution applicant shall be paid in next five years and detailed above. Resolution applicant proposes to appoint Mr. Sandeep Kumar Jain, CS and Insolvency Professional and one representative of Secured Financial Creditor as Monitoring Agency to supervise the implementation of the resolution plan and to bring any deviation in the resolution plan to the notice of NCLT. Appointment of Mr. Sandeep Kumar Jain would be for the entire tenure of the plan period and his fees and other expenses related to monitoring shall be paid by the Corporate Debtor and appointment of representative of Secured Creditor will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to be passed as it is required to notice that under Section 29A(g) a person will not be eligible to be a resolution applicant who has been a promotor or in the management or in control of CD in which a preferential transaction, undervalued transaction, extortionate credit transaction or fraudulent transaction has taken place and in respect of which an order has been made by the adjudicating authority under this code. 30. However, no such order has been passed even though in application IA No. 58/JPR/2018 has been filed by the RP of which we have already expressed our opinion in relation to the conduct of the RP in not seriously pressing for this application to be disposed of prior to accepting the Resolution plan filed by the RA. Further it is also required to note that during the course of submission, learned RP brought to the notice of this Tribunal that the CoC has also been apprised of the several transactions alleged to be falling under the above sections however, the CoC has not chosen to press for the charges/allegation made against the promotors of the Corporate Debtor, however has chosen to approve the resolution plan taking into consideration the commerci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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