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TMI Blog2019 (11) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... Cross Border Insolvency Protocol . Therefore, we direct to insert Clause 6.1.2, as suggested by the Dutch Trustees' - The Dutch Trustee (Administrator) will work in co-operation with the Resolution Professional of India and, if any, suggestion is required to be given, he may give it to the Resolution Professional . The impugned order dated 20th June, 2019 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench in so far it relates to the observations that the Dutch Court has no jurisdiction in the matter of corporate insolvency resolution process of Jet Airways (India) Limited, (Offshore Regional Hub) is set aside - appeal disposed off. - Company Appeal (AT) (Insolvency) No. 707 of 2019 - - - Dated:- 26-9-2019 - Justice S.J. Mukhopadhaya, Chairperson, Justice A.I.S. Cheema, Member (Judicial) And Justice Kanthi Narahari, Member (Technical) For The Appellant : Mr. Sumant Batra, Ms. Priyanka Anand and Ms. Srishti Kapoor, Advocates For The Respondent : Ms. Gauri Rasgotra, Mr. Karan Khanna and Ms. Ritu Anand, Advocates, Mr. Krishnendu Datta, Ms. Anindita Roy Chowdhury, Mr. Aditya Chatterjee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Proceedings ). The Dutch Proceedings together with the Indian Proceedings : the Proceedings . (D) On an application made by the Dutch Trustee, appealing the 20 June 2019 order of the NCLT before the Hon ble National Company Law Appellate Tribunal, New Delhi ( NCLAT ),the NCLAT, by its orders dated 12 July 2019 and 21 August 2019 ( NCLAT Order ), inter alia, directed the RP, in consultation with the CoC, to consider the prospect of co-operating with the Dutch Trustee so as to have joint corporate insolvency resolution process of the Company and further vide its order dated 04 September 2019 directed the RP under the Indian Proceedings to reach an arrangement/agreement with the Dutch Trustee to extend such cooperation to each other, further allowing the CoC to guide the RP to enable him to prepare an agreement in reaching the terms of arrangement of cooperation with the Dutch Trustee in the best interest of the Company and all its stakeholders ( Proposed Cooperation ). (E) The Parties wish to facilitate and formulate the Proposed Cooperation with this Protocol. THE PARTIES AGREE AS FOLLOWS: 1 CONSTRUCTIO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinate with each other and cooperate in all aspects of the Proceedings in terms of this Protocol. In doing so, the Parties acknowledge and agree that the Parties shall deal in good faith with each other in the interests of maximizing value of assets/recovery for all of the Company's creditors. 3 AIMS OF THE PROTOCOL The Parties recognise that the Company being an Indian company with its centre of main interest in India, the Indian Proceedings are the main insolvency proceedings and the Dutch Proceedings are the non-main insolvency proceedings: (a) Coordination To promote international cooperation and the coordination of activities in the Proceedings; and to provide for the orderly, effective, efficient, and timely administration of the Proceedings in order to reduce their cost and maximize recovery for creditors. (e) Communication To promote communication among the Parties and the CoC; and to provide, wherever possible, for direct communication among NCLT, NCLAT and Dutch Bankruptcy Court. (f) Information and Data Sharing To provide for the sharing of relevant information and dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto between the Parties (the NDA ). In this regard, the Parties agree that each shall not (and shall direct their respective agents and representatives not to) provide any non-public information received from each other to any third party, unless such information is (i) agreed to be disseminated/shared by the other Party, (ii) required by applicable law, or (iii) required by order of any Court. 5.1.4 Further, each Party shall co-ordinate in good faith the investigations of any avoidance transactions with the other Party so as to maximise recoveries to the estate of the Company. 5.1.5 No Party shall have or obtain a right of automatic access to any information from the other Party. 6 RIGHTS TO APPEAR AND ATTEND 6.1.1 Subject to the applicable laws of each jurisdiction and Clause 7 (Indian Proceedings), the Parties shall have the right to appear, either in person or duly represented, in the Proceedings. 6.1.2 xxx xxx xxx 6.1.3 No Party shall be deemed to have submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assets of the Company which are located in the Netherlands including, without limitation: (a) the economic interest in the aircraft situated on the date of this Protocol at Schiphol International Airport (BOEING 777-35RER, VT-JEW, S/N 35164) (the Aircraft ) or its residual value after enforcement by or on behalf of US Exim Bank ( US Exim Bank ); (n) the spare parts situated on the date of this Protocol being stored on the premises of Koninklijke Luchtvaart Maatschappij N.V. or any of its (in)direct subsidiaries or otherwise related entities (collectively KLM ) at Schiphol International Airport; (o) the office inventory, at the date of this Protocol being stored on the premises of KLM at Schiphol International Airport; and (p) the value of the flight slots at Schiphol International Airport which the Company was entitled to use immediately prior to 21 May 2019 in connection with all activities required to maintain such value, collectively referred to as the Dutch Assets . 8.1.2 In the interest of having a joint insolvency Proceeding for the administration, preservation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transitioning of any employees managing such asset; or (iii) the commencing of any judicial, or non-judicial, proceeding affecting such asset. 9 CLAIMS 9.1.1 In order to ensure a complete and effective overview of claims and to enable each Party to fulfil his obligations, creditor claims should be submitted by the respective creditors in each Proceeding in accordance with the relevant applicable law. 9.1.2 The Dutch Trustee shall collate all claims received by him and shall forward these claims to the RP, who shall then verify and admit such claims in accordance with the Indian law. 9.1.3 Also on behalf of the creditors involved, the RP shall forward the list of creditors and details of all admitted claims under the Indian Proceedings to the Dutch Trustee, which claims shall be provisionally recognized and admitted by the Dutch Trustee in accordance with Dutch Law. 9.1.4 The Parties agree that the RP might be best placed to investigate the admissibility of claims that were first submitted in the Indian Proceedings and the Dutch Trustee might be best placed to investigate the admissibility of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (t) transferring, encumbering, alienating or disposing off by the Company of any of its assets, including the Dutch Assets, or any legal right or beneficial interest therein; (u) any action to foreclose, recover or enforce any security interest created by the Company in respect of its property; and (v) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Company. 11.1.2 The Dutch Trustee agrees to make reasonable endeavour to implement the terms of the moratorium imposed by the said order in respect of the Dutch Assets, and to take all reasonable action under applicable Dutch laws to ensure that the order is complied with in this respect, including, without limitation, actions that the Dutch Trustee is bound to undertake under Clause 8.1.5 of this Protocol. 11.1.3 The provisions of Clause 11.1.2 shall not preclude the Dutch Trustee from taking such steps as may be required to protect and preserve the value of the assets of the Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ird party rights 12.6.1 Except where this Protocol expressly provides otherwise: (a) it contains no stipulations for the benefit of a third party (derdenbedingen) which may be invoked by a third party against a Party; and (w) where this Protocol contains a stipulation for the benefit of a third party, this Protocol (including the relevant third party's rights under this Protocol) may be terminated, amended, supplemented or waived (in each case either in its entirety or in part) without that third party's consent. 12.7 No rescission; errors 12.7.1 No Party may fully or partly rescind (ontbinden) this Protocol. 12.7.2 If a Party has made an error (heeft gedwaald) in relation to this Protocol, it shall bear the risk of that error. 12.8 No suspension 12.8.1 No Party may suspend (opschorten) performance of its obligations under or in connection with this Protocol on any ground whatsoever. 12.9 No assignment 12.9.1 No Party may fully or partly assign or encumber rights and obligations under this Protoco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olution Professional of India is on the basis of the direction of this Appellate Tribunal. In spite of the same, unfortunately the Committee of Creditors interfered with the matter and put its view to the Resolution Professional resulting into difference of the suggestions. 5. The Dutch Trustee is equivalent to the Resolution Professional of India, therefore, as per law he has a right to attend the meeting of the Committee of Creditors . However, as we do not want to overlap the power between one and other, we are of the view that the suggestion given by the Dutch Trustee (Administrator) as shown in its Clause 6.1.2 should be part of the Agreement Cross Border Insolvency Protocol . Therefore, we direct to insert Clause 6.1.2, as suggested by the Dutch Trustees , which reads as follows: 6.1.2 [The Dutch Trustee shall be invited to participate in the meetings of the CoC as an observer but shall not have a right to vote in such meetings.] 6. We make it clear that the Dutch Trustee (Administrator) will work in co-operation with the Resolution Professional of India and, if any, suggestion is required to be given, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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