9911796707
TMI Blog2019 (9) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner herein, against M/s. KND Engineering Technologies Limited, hereinafter called the Corporate Debtor. 2. After being served with the notice of the Petition, the Corporate Debtor appeared through its Counsel on 21st August, 2018, who made a statement that the Corporate Debtor did not wish to contest the Petition. The Petition was thus admitted. 3. Vide Order dated 30-08-2018, this Adjudicating Authority (in short AA) had ordered the appointment of Mr. Ram Ratan Modi, Insolvency resolution Professional as an Interim Resolution Professional as proposed in the Petition. Since the Corporate Debtor did not challenge any of the averments made in the Petition by the Operational Creditor, all of them were taken as correct and admitted. The Operational Creditor had finally prayed for the payment of the outstanding dues from the Corporate Debtor to the tune of Rs. 5,71,789/- against which the corporate Debtor had already deducted the TDS and had produced the TDS Certificate as Annexure "E" to the Petition. The aforesaid Insolvency resolution Professional had submitted in Form - II, Annexure A1 and A2 that there was no disciplinary proceedings pending against him. This AA had, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffidavit, was also proceeded ex parte. 9. The Resolution Professional filed the Fifth Progress Report and submitted that 180 days period of CIRP would be expiring on 25th February, 2019 and sought extension of CIRP period. He was directed to file an Application for the purpose. 10. By filing CA(IB) No. 209/KB/2019, the Resolution Professional brought to the notice of this AA that in the meeting dated 8th February, 2019, the Committee of Creditors had unanimously decided to seek extension of time by a period of 90 days beyond 180 days which was accordingly allowed up to 26th May, 2019. It was observed by the AA that the attachment of Account could not have been done since the Order of commencement of CIRP had been passed on 30th August, 2018 and therefore, the Order passed for issuing attachment of the Account was illegal and could not be sustained in law. Therefore, the de-attachment of the Account No. 5888002100000512, being maintained by the Punjab National Bank, Kamarhati, Belghoria, Kolkata, which was attached vide Order dated 19th November, 2018, might be approved by this AA. Vide Order in CA(IB) No. 61/KB/2019, the account was de-attached and the Resolution Professional was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposed by the Resolution Applicants and thus, both of them were requested to revise their offers and to comply with the request for the Resolution Plan. However, the Kontinental Power and Steel Limited once again offered the same amount and refused to increase their financial bid. Therefore, the Committee of Creditors declared PND Infrastructure Limited as the H1 Bidder. Even thereafter, several rounds of negotiations took place between the Committee of Creditors and the H1 Bidder and finally on 21st May, 2019, the amended Resolution Plan submitted by the H1 Bidder was placed before the members of the Committee of Creditors for consideration. 12. The Resolution Professional has submitted that the Plan submitted by PND Infrastructure Pvt. Limited is viable, as amended, and thus it was approved by the Committee of Creditors by voting share of 90.93%. The Resolution Professional has, thus, prayed before this AA that the Resolution Plan submitted by PND Infrastructure Pvt. Limited duly approved by the Committee of Creditors in its meeting dated 21st May, 2019, in accordance with Section 30(6) of the Insolvency and Bankruptcy Code, 2016, might be approved by the AA. 13. Nobody has tur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the corporate debtor against the former IRP for non-inclusion of his proof of claim in Form D which the IRP has refused to accept when approached directly in his office. He further submits that as per Form No. D submitted by him he is entitled to realise Rs. 3,15,658/- which has been rejected by the IRP to be admitted by IRP and prays for issuing appropriate orders/directions. 19. CA (IB) No.471/KB/2019 is an application filed by RP against Assessment Commissioner of Sales Tax, Mumbai and against Assessment Commissioner of Income Tax (TDS), Kolkata praying for de-attachment of bank account of the corporate debtor maintained by Axis Bank, Fort Branch, Mumbai. The RP contends that Assessment Commissioner of Sales Tax, Mumbai had issued notice in favour of Axis Bank dated 22/2/2019 intimating the attachment of bank account being No.912020003604801 of the corporate debtor under Sec.33(1) of Maharastra Value and Tax Act, 2002 and another respondent Commissioner of Income Tax (TDS), Kolkata had issued notice in favour of Axis Bank dated 20.3.2018 intimating the attachment of bank account being No.004010202936356 of the corporate debtor under Sec.226(3) of the Income Tax Act, 1961 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be dismissed. 24. CA No.592/KB/2019, CA NO.599/KB/2019, CA No.600/KB/2019, CA No.600/KB/2019 and CA No.610/KB/2019 are separate applications filed by the individual workmen alleging non consideration of their respective claims submitted in prescribed from. The Ld. PCA submits that the belated applications of the said workmen, if considered, would delay the finalization of the approval of the resolution plan and requested to dispose of the same along with his the application he has preferred for approval of the resolution plan. However, he did not object to the applications being considered. 25. Upon hearing the Ld. Counsel for and on behalf of the workmen, the Ld. Sr. Counsel for the resolution applicant and the Ld. PCA, we have enquired from the Ld. Sr. Counsel for the resolution applicant as to allowing the admitted claim of the said workmen in proportion to the percentage of distribution already allotted to the workmen. Ld. Sr. Counsel has submitted that in order to avoid further delay in approval of the resolution plan, he readily agreed to provide the very same treatment given to the workmen and employees as per the resolution plan approved by the CoC. He would further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he effective date 12,00,000 Total payment 31,18,21,356 This matrix modified as per the undertaking filed on 7th June, 2019 is as shown below : Sl. No. Nature of the claim Amount (INR Crores) Treatment under proposed Resolution Plan Total Payment Payment(INR) Terms of payment 1 Insolvency Resolution Process Cost 50,00,000 50,00,000 To be paid upfront(within 14 days from the effective date) 50,00,000(100%) Full amount 2 Financial Claims Admitted A. Secured Financial Creditors 52,36,81,932 30,00,00,000 In two years from the date of approval of Resolution Plan by NCLT 30,00,00,000 (100.00% B. Unsecured Financial Creditors 5,22,00,175 5,00,000 To be paid within 1 month from the effective date 5,00,000 (.96%) 3 Operational Claims Admitted A. Operational Creditors(other than Workmen and Employees) 15,95,99,395 7,11,543 To be paid within 14 days from the effective date 7,11,543 (0.45%) Full amount A1. Payment to Income Tax Department as per Notice issued u/s 226(3) of Income Tax Act, 1961 13,33,310 6,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attachment order is not de-attached, the fund frozen in bank account cannot be utilised for the resolution cost. According to him, the Assessment Commissioner of Mumbai, as requested by the RP has already withdrawn, and the account attached at the instance of the Assessment Commissioner of Sales Tax is in operation. However, he prays for relief sought for as against the Income Tax authorities. According to him the Income Tax authority is an operational creditor, who has not submitted any claim and, therefore, is disentitled to realise any amount. Even if it had failed in submitting the claim, he has no objection in considering the claim as an Operational Creditor. The law applicable to the right of statutory authorities to claim the debt due, has been settled by the Hon'ble Appellate Tribunal CA (AT) Insolvency Appeal No. 205/2017 [Principal Director General of Income Tax (Admin and TDS)] Pr. DGIT V/s. Synergies Dooray Automotive Ltd. and others, in which it has been held that "Income Tax Department of the Central Government and the Sales Tax Department of the State Government and local authority who are entitled to have dues arising out of the existing law of operation credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copies of minutes produced along with the Application CA(IB) No. 649/KB/2019 filed for approval of the Resolution Plan. It is at the 14th meeting of the Committee of Creditors, the Plan of the Resolution Applicant proposing a total of Rs. 30.23 crores, has been discussed at length by the Members of the Committee of Creditors. On reference to the minutes, it is understood that the Unsecured Financial Creditor, who seems to have participated in the discussion, has not raised any objections in regard to distribution of the funds. We fail to see any record in the minutes regarding the objection, if any, raised on behalf of the Unsecured Financial Creditor in regard to distribution of funds alleging discriminatory treatment by the majority members. However, the Unsecured Financial Creditors have been allotted Rs. 5 lacs towards total amount of admitted claim. It is unclear as to whether the Resolution Professional failed in recording the objection, if any, raised on the side of the Unsecured Financial Creditors in the minutes. At the time of hearing, it was informed that such an objection was not forthcoming. Here, in this case, there are only two Financial Creditors, one is Secured Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various ways and means to deal with the assets and liabilities of the Corporate Debtor in economic and viable manner. 34. The Resolution Plan, as modified also includes Rs. 25 lacs submitted by the Resolution Applicant as Earnest Money Deposit(EMD-I) along with the submission of Expression of Interest which would be treated as performance security. 35. This is a case in which we take note of a systematic way of maximizing the value of the stressed assets of the Corporate Debtor adopted by the Resolution professional with the approval of the CoC and has given a healthy competition between the two bidders for raising the final bid offer after final voting has been done on 21st may, 2019. The CoC finally approved the plan with 90.93% of its voting share. Moreover, no mala fide is alleged or proved. In the said background, we are not bound to reopen the process. 36. On a reference to the Plan, it is understood that the assets of the Corporate Debtor are going to rest in safer hands. PND Infrastructure Pvt. Ltd. is a Company, incorporated on 19th August, 2013, and is involved in infrastructural projects and real estate activities with owned/leased properties and real estate activiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claim to the tune of INR 52.36 crores and the Unsecured Creditor has been provided 0.96 percentage of total admitted claim to the tune of INR 5 lacs. The workmen and the employees, the Operational Creditors, as well as the existing shareholders would also be benefitted to the extent of their proportionate share in the remaining amount available for distribution. 40. The liquidation value arrived at in this case is Rs. 26,54,34,919/-. The total payment agreed to be paid by the Resolution Applicant is INR 31,18,21,356/-. It has been agreed to by the Ld. Senior Counsel, appearing for the Resolution Applicant that the same would be modified by enhancing it to INR 31,18,90,031. Though marginally, considering the total bid amount agreed to be paid by the Resolution Applicant and considering the percentage of funds availed by the Secured Creditor of the Corporate Debtor and considering the difference between the liquidation value and the amount of the Resolution Plan, that in case of liquidation, there is nothing left for distribution to the Operational Creditors, it appears to us that there is nothing discriminatory in the distribution of funds available with the Committee of Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
