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TMI Blog2019 (11) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... nt application are as follows: - One of the Operational Creditor, namely, Mr. Shanti Lal Jain (Sole Proprietor of M/s. Jainsons (India)) had preferred an application under Section 9 of the Code for initiation of corporate resolution process against M/s. Jasper Engineers Private Limited ("Corporate Debtor"). The application was admitted on 05th September, 2018 imposing moratorium under Section 14 of the Code and the applicant, Mr. Hemant Gupta was appointed as the Interim Resolution Professional. 3. Thereafter, public announcement in Form A for 'expression of interest' as prescribed under Regulation 6 of the Regulations in English and vernacular newspapers was published on 10th September 2018, respectively intimating commencement of Corporate Insolvency Resolution Process of the Corporate Debtor and for calling the creditors to submit their claims along with the proof in the prescribed format. 4. The First Meeting of COC was held on 06th October, 2018, wherein the applicant Mr. Hemant Gupta, the then interim resolution professional was appointed as the Resolution Professional in accordance with the provisions of Section 22(3)(a) of the Code. 5. The applicant Resolution Professio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industrial Traders Private Limited. 11. The list of financial creditors of the corporate debtor, distribution of voting share amongst them and the result of voting concluded in 7th CoC meeting held on 7th May, 2019 are enumerated as under: Sl. No. Name of Creditors Voting Share (%) Voting for Resolution Plan (Voted for/Dissented/Abstained) 1 Bank of India 93.32 % Voted for Resolution Plan 2 Amit Industries Private Limited 5.46% Voted for Resolution Plan 3 Bhavna Goel 1.18% Abstained from the meeting. Later voted for Resolution plan through e-voting 12. Post approval of the M/s. BCH Electric Limited's resolution plan by the Committee of Creditors, an application being CA-175(ND)/2019 was filed on 23rd May, 2019 under Section 30(6) of the Code read with Regulation 39 of the CIRP Regulations for seeking approval of the resolution plan. Resolution Professional also filed the compliance certificate in Form H as prescribed under Regulation 39 (4) of the CIRP Regulations, which was introduced by the Insolvency and Bankruptcy Board of India vide notification IBBI/2018-19/GN/Reg 031 dated July 3, 2018 with effect from July 4, 2018. 13. Admittedly the Resolution Plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tegory of Shareholder Amount claimed Amount admitted Amount provided under the plan# Amount Provided to the Amount Claimed (%) 1 Secured Financial Creditor* 622.47 622.47 435.73 70% 2 Unsecured Financial Creditors Unrelated 44.27 44.27 30.99 70% 3 Unsecured Financial Creditors-Related parties 89.80 54.50 3 Operational Creditors 283.72 190.23 67.98 35.73% Government - - Workmen 7.22 6.66 6.66 100% Employees-Unrelated 20.33 19.06 19.06 100% Employees-Promoters 61.45 47.12 - - 4 Other Debts and Dues-Related parties 122.10 51.30 - - TOTAL 1251.36 1035.61 560.42 IRP Cost 19.81 19.81 19.81 Total amount provided in the Resolution Plan 1271.17 1055.42 580.23 18. It is thus seen that as per the liquidation value of the corporate debtor and the waterfall mechanism provided under Section 53 of the Code, no amount would be liable to be paid to persons other than resolution process cost, secured creditors and wages to workmen. However as per compliance certificate of Resolution Professional, Rs. 67.98 lakhs (35.73%) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority to ensure that: (A) the Resolution Plan meets the requirements of Section 30(2) of the Code and (B) the resolution plan has provisions for its effective implementation, as laid down in proviso to Section 31(1). In respect of compliance of point (A) above, sub-section 2 of Section 30 casts duty on the Resolution Professional to examine the resolution Plan received by him to confirm that such Resolution Plan provides for the payment of insolvency resolution process costs, provides for the payment of the debts of the operational creditors in such manner as may be specified, provides for the management of the affairs of the corporate debtor after approval of the Resolution Plan; the implementation and supervision of the Resolution Plan, that the Resolution Plan does not contravene any of the provisions of the law. and that the Resolution Plan conforms to such other requirements as may be specified by the Board. 23. In compliance of the said provision, the Resolution Professional has filed compliance certificate in Form H and inter alia has confirmed that he has examined and verified the Resolution Plan approved by the CoC, in the light of the requirements of the Code and Regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 30 days of approval of plan by Hon'ble Adjudicating Authority in priority over Financial creditors. The distribution of amount provided amongst Operational Creditors will be in a pro-rata basis to the number of claims admitted by the Resolution Professional as disclosed in Resolution Professional's documents. Any other additional claims that may be admitted by the competent judicial authority, shall be paid on similar basis as above. The Resolution Professional has confirmed in the compliance certificate given in Form H that the payment to Operational Creditors have been given priority over payment to Financial Creditors. Therefore Section 30(2)(b) read with Regulation 38(1)(b) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process of Corporate Persons) Regulations. 2016 stands satisfied. 28. In terms of Section 30(2)(c), the Resolution Plan provides for management of affairs of the corporate debtor after approval of the Resolution Plan. The term of Plan and its implementation schedule as per Regulation 38(2)(a) has been provided for at Clause 6 of the Resolution plan which provides that the Company shall continue as a going concern and operate in its no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undred and Ninety-Nine Only) as a performance security to be deposited by M/s. BCH Electric Limited. 33. Accordingly, in compliance of Regulation 36B(4A) of the CIRP Regulations, the successful Resolution applicant has submitted a bank guarantee of Rs. 58,02,299/- as performance security as per the following details:- Date of issuance of Bank Guarantee- 16.05.2019 Name of Issuing Bank- Punjab National Bank Amount of Bank Guarantee- Rs. 58,02,299/- Period of Bank Guarantee- Valid upto 15.11.2019 34. As a sequel to aforesaid discussions we are satisfied that all the requirements of Section 30 (2) are fulfilled and no provisions of the law at present in force has been contravened. 35. It is relevant to note here that 'Explanation' in sub-section (2) of Section 30 provides deemed approval of shareholders for implementations of actions under the Resolution Plan, making it clear that it shall not be a contravention of law. 36. In respect of reliefs and concession sought for in the Plan which are beyond the jurisdiction of this Tribunal, Monitoring agency along with the Resolution Applicant can make such claim before the authorities which shall be considered in accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 29A of the Code and as no infirmity seems to have brought out upon screening of the Resolution Plan; we hereby approve the Resolution Plan under sub-section (1) of Section 31 of the Code. 41. The resolution applicant shall appoint a 'Monitoring Agency' with modification that Resolution Professional shall be appointed as 'Monitoring Agency' to monitor and supervise the implementation of the Resolution Plan. We also grant Liberty to the monitoring Agency to apply to the Tribunal for any further direction in order to ensure effective implementation of the plan, if such a necessity arises. 42. It is hereby declared that the Resolution Plan is binding on the corporate debtor, members, employees and workmen of the corporate debtor, creditors of the corporate debtor and other stakeholders involved in the Resolution Plan. 43. The resolution applicant shall obtain the necessary approval required under any law for the time being in force within a period of one year from the date of this order or within such period as provided for in such law, whichever is later. 44. The Resolution applicant has to adhere to all the applicable law for the time being in force. 45. Approval of Reso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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