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2019 (12) TMI 514

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..... solution Plan in terms of Section 31(l) of the Code. The moratorium order passed under Section 14 shall cease to have effect from today. - I.A. NO. 703 OF 2019 C.P. (IB) NO. 275/7/HDB/2018 - - - Dated:- 17-10-2019 - Ratakonda Murali, Judicial Member And Narender Kumar Bhola, Technical Member Raghunandan Rao and Rajesh Kumar Herur, for the Applicant. ORDER Narender Kumar Bhola, 1. Under consideration before us is the Application filed under Sections 30(6) and 31 of Insolvency and Bankruptcy Code, 2016 R/w Regulation 39(4) of the IBBI (Insolvency Resolution Process for Corporate Persons), R/w Rule 11 of NCLT Rules, 2016 by Resolution Professional, seeking directions to approve the resolution plan. 2. The facts apropos to the Application in brief are:- (1) This Tribunal admitted the petition bearing C.P. (IB) NO. 275/7/HDB/2018 vide order dated November 9, 2018 ( Admission Order ) filed by India Opportunities III Pte Limited and one Anr and initiated the CIRP against the Corporate Debtor. Mr. V. Venkatachalam/ the Applicant herein, was appointed as the Interim Resolution Professional ( IRP ) of the Corporate Debt .....

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..... viewer ( Transaction Reviewer ) to conduct a transaction review of the Corporate Debtor was deliberated upon. The Transaction Reviewer has submitted his transaction review report on July 24, 2019. Further the Applicant published an advertisement seeking for Expression of Interest ( EOI ) from prospective resolution applicants on January 17, 2019 in Business Standard, Nava Telangana and Navbharat newspapers and again for extension of date on February 9, 2019 in Business Standard, Nava Telangana and Navarashtra newspapers and further on March 8, 2019 in Business Standard, Nava Telangana and Navarashtra newspapers and also put up the detailed invitation for EOI process document on the website of the Corporate Debtor on January 17, 2019 which was amended subsequently on February 9, 2019. Pursuant to the same, the Applicant received 4 EOIs. Furthermore, 2 (Two) parties requested for an extension of time for submission of EOI. Vide circular resolution dated February 4, 2019 through e-voting conducted until February 7, 2019, the COC approved the extension for receipt of Expression of Interest to February 28, 2019 and authorised the Applicant with a discretion to further extend the said da .....

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..... further directed to provide an Addendum to the queries raised by CoC, by July 23, 2019. Copy of the minutes of 9th COC meeting held on July 19, 2019 is annexed and marked as Annexure K . 13. At the tenth meeting of the COC held on July 25, 2019, inter alia, the report submitted by the Transaction Reviewer was placed before the COC and the Resolution Professional placed the resolution before COC, for voting by electronic means, to consider and approve the resolution plan dated July 23, 2019 (pursuant to revisions) along with its addendum submitted by the Resolution Applicant. The said resolution plan filed by Consortium of Sri City Private Limited and KCR Enterprise LLP was approved by the COC with a voting majority of 75.91% of the COC. Copy of the minutes of 10th COC meeting held on July 25, 2019 along with the summary of e-voting is annexed and marked as Annexure L . 14. The list of creditors uploaded in the website of the Corporate Debtor on July 20, 2019 is as follows: (a) List of Financial Creditors: Sl. No. NAME OF THE FINANCIAL CREDITOR (NON RELATED PARTIES) AMOUNT CLAIMED (Rs. .....

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..... 78,24,81,002 - Yes 13 Assets Care and Reconstruction Enterprise Limited 73,13,98,337 73,13,98,337 - Yes 14 Punjab Sind Bank 52,31,65,953 52,31,65,953 - Yes 15 Andhra Bank 8,89,56,800 - 8,89,56,800 No security claimed Total 4747,19,02,738 4738,29,45,938 8,89,56,800 The admitted claims are inclusive of Corporate Guarantee of ₹ 6,67,69,12,147 provided by the Company for facilities availed by group entities. Sl. No. NAME OF THE FINANCIAL CREDITOR (RELATED PARTIES) AMOUNT CLAIMED (Rs) CLAIM ADMITTED (Rs) .....

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..... 1 Western Coalfields Limited 753,93,00,000 - - 753,93,00,000 2 Graphite India Limited 154,17,75,000 - 5,60,00,000 148,57,75,000 3 Maharashtra State Electricity Transmission Company Limited 119,51,75,491 34,70,62,519 - 84,81,12,972 4 Maharashtra State Electricity Distribution Company Limited 121,75,00,000 - - 121,75,00,000 5 Mahindra CIE Automotive Limited 109,06,98,467 - - 109,06,98,467 6 Lupin Limited 98,24,59,301 12,02,071 - .....

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..... 3,81,11,274 - 10,88,63,418 19 Punjab Transport Company 14,26,62,371 9,77,14,887 4,49,47,484 - 20 Chennai Radha Engineering Works Pvt. Ltd. 13,33,50,956 8,77,54,903 4,55,96,053 - 21 Mcnally Bharat Engineering Co. Ltd. 12,73,97,847 11,51,25,090 1,22,72,757 - 22 Balaji Associates 11,80,99,391 8,14,02,950 3,66,96,441 - 23 Mahindra Vehicle Manufacturers Limited 7,80,60,528 - - 7,80,60,528 24 Kjsl Coal and Power Pvt. Ltd. .....

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..... 1,27,09,211 60,43,241 66,65,970 - 37 AYM Syntex Limited 1,12,44,048 9,72,278 1,02,71,770 - 38 Saibaba Metal Industries 1,07,34,330 58,30,190 49,04,140 - 39 Shree Shyam Traders 1,04,72,151 63,14,778 41,57,373 - 40 Khanduja Coal Transport Co. 91,85,263 63,78,655 28,06,608 - 41 Zenith Infrastructure 82,95,082 44,93,361 38,01,721 - 42 Jai Lahari Enterprises 72,41,821 10, .....

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..... 55 Sunrise Bearing Corporation 30,10,755 30,10,755 - - 56 Rohan Chemicals 29,94,420 29,94,420 - - 57 Abhijeet Intelligence Securities and Labour Suppliers 29,53,577 29,53,577 - - 58 NALCO Water India Limited 26,16,322 20,16,322 6,00,000 - 59 Mahabal Enviro Engineers Pvt. Ltd. 24,31,060 10,24,556 14,06,504 - 60 Urja Manpower Consulting Pvt. Ltd. 21,09,561 21,08,683 878 - 61 .....

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..... 26,772 - - 74 Ranadeep Transport 6,59,863 6,31,887 27,976 - 75 Deloitte Haskins and Sells 6,23,538 6,23,538 - - 76 Patel Erectors 5,97,191 4,85,102 1,12,089 - 77 Ferrocare Machines Pvt. Ltd. 4,71,270 4,71,270 - - 78 SJ Patel Industries 4,58,620 4,52,202 6,418 - 79 Amit M Lahoti 4,25,980 - 4,25,980 - 80 .....

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..... 93 Aniket Enterprises 1,90,827 1,90,827 - - 94 Wasudeo Mahadeo Urkande 1,62,308 97,802 64,506 - 95 Ajit Contractors 1,59,005 1,59,005 - - 96 Alco Aluminium Ladders Pvt. Ltd. 1,54,810 1,54,810 - - 97 Hasan Electricals 1,47,631 1,47,521 110 - 98 Sunbird Seals Plastics Pvt. Ltd. 1,41,600 1,41,600 - - 99 Gautam Tube Corporation 1, .....

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..... 63,573 - - 113 Tata Projects Ltd. 60,180 55,080 5,100 - 114 N T Corporation 57,348 57,198 150 - 115 Vinson Enterprises 53,843 53,843 - - 116 Vulcan Industries 49,875 49,875 - - 117 Jumde Agencies 48,874 48,874 - - 118 Seashell Logistics Pvt. Ltd. 48,542 41,600 6,942 - 119 Gunatit Ceramics .....

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..... - - 133 Simplex Agencies 4,248 4,248 - - Total 1891,30,48,617 325,66,81,348 59,11,01,973 1506,52,65,296 (c) List of Other Creditors: Sl. No. NAME OF THE OTHER CREDITOR AMOUNT CLAIMED (Rs) CLAIM ADMITTED (Rs) CLAIM NOT ADMITTED (Rs) CONTINGENT CLAIMS (Rs) 1 Baekart Industries Limited 14,97,37,854 - 2,47,65,580 12,49,72,274 (d) There are 136 workmen or employees in the Corporate Debtor and amount of their claim is ₹ 2,64,95,405/-, out of which ₹ 1,66,97,405/- only was admitted. 15. The COC comprises of the following members having voting share as defined under S .....

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..... 8,24,81,001.83 1.65% 13 Assets Care and Reconstruction Enterprise Limited (ACRE) 73,13,98,337.00 73,13,98,337.00 1.54% 14 Punjab Sind Bank 52,31,65,953.00 52,31,65,953.00 1.10% TOTAL 47,38,29,45,938.22 47,38,29,45,938.22 100.00% 16. The Applicant has furnished a certificate dated July 27, 2019 certifying the compliance of the successful Resolution Applicant under section 29A of the Code. A copy of the said Section 29A compliance certificate is marked as Annexure M . The Applicant also issued compliance letter vide letter dated July 27, 2019 in relation to the Resolution Plan submitted by the Resolution Applicant. A copy of the said compliance letter is marked as Annexure N . 17. A performance bank guarantee of ₹ 50,00,00,000 (Rupees Fifty Crores Only) from the Resolution Applicant as require .....

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..... 0, 2019, is INR 1519,02,37,570 (Rupees One Thousand Five Hundred Nineteen Crores Two Lakhs Thirty Seven Thousand Five Hundred Seventy Only) ( Contingent Outstanding Operational Debt ). The Admitted Outstanding Operational Debt and Contingent Outstanding Operational Debt are hereinafter collectively referred to as the Outstanding Operational Debt. (iii) As per the terms of the Resolution Plan, a total amount of INR 635,00,00,000 (Rupees Six Hundred And Thirty Five Crores Only) is proposed to be paid to the financial creditors (excluding financial creditors who are related parties who are proposed to be paid NIL amount) of the Corporate Debtor, including towards residual surviving debt of foreign currency term loans). Out of such amount, an upfront payment of INR 10,00,00,000 (Rupees Ten Crores Only) ( Upfront Payment Against FC Debt ) is proposed to be made within 60 days of the Resolution Plan being approved by this Tribunal ( Effective Date ). The residual surviving debt of INR 625,00,00,000 (Rupees Six Hundred And Twenty Five Crores Only) ( Residual Debt ) shall be serviced in the following manner, as per the schedules and commercial terms (including interest and repayme .....

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..... and operational creditors including other creditors. (vi) Out of the Non-Financial Creditor Allocated Amount, the CIRP Cost and an amount of INR 1,66,97,405 (Indian Rupees One Crore Sixty Six Lakhs Ninety Seven Thousand Four Hundred and Five), i.e., the entire amount of admitted claim of workmen and employees will be paid out in priority. The remaining amount ( Operational Creditors and Other Creditors Allocated Amount ) will be distributed among other operational creditors of the Corporate Debtor in the manner set out in the Resolution Plan. (vii) If the liquidation value payable to the operational creditors in the event of liquidation of the Corporate Debtor ( Operational Creditor Liquidation Value ) is determined to be higher than the Non-Financial Creditor Allocated Amount, the entire Operational Creditor Liquidation Value as reduced by CIRP Costs will be paid to the respective Operational Creditors (including workmen and employees). (viii) Some of the operational creditors have approached different legal forums challenging the rejection of their claims. In the event that some of these rejected claims or contingent claims could get crystallized after .....

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..... M/s Brahmayya Co., assisted by J Sagar Associates (legal counsel) will be hired as the implementing agency to assist the Steering Committee in fulfilling its responsibilities in relation to implementation of Resolution Plan. On the Effective Date. 3. Upon approval of this Resolution Plan by the Adjudicating Authority, the constitutional documents of the Corporate Debtor shall stand amended in the manner notified by the Resolution Applicant. The Corporate Debtor will undertake all steps and filings as are required by the Companies Act, 2013 to give effect to the amendment to the constitutional documents. Within 5 business days from the approval of this Resolution Plan by the Adjudicating Authority. 4. The Steering Committee shall issue a notice of termination to the existing O M contractor in relation to the project owned by the Corporate Debtor and/or its affiliates for termination of all agreements and arrangements with the existing O M contractor and/or its affiliates. The Resolution Applicant shall ensure smooth transition between t .....

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..... f the consortium of Resolution Applicant. KCR Enterprise LLP will infuse INR 160,00,00,000 (Rupees One Hundred and Sixty Crores Only) into the Corporate Debtor by subscribing to compulsorily convertible debentures (CCDs) to be issued by the Corporate Debtor. Such CCDs shall be issued at a face value of INR 10 / unit and shall carry a coupon of 9.5% payable out of profits of the Corporate Debtor. These CCDs shall be compulsorily convertible into Class AA Equity Shares in the ratio of 1:1 on the day following the eighth anniversary of the Effective Date. However, such CCDs can be converted earlier any time after the day following the fifth anniversary of the Effective Date at the option of the CCD holders. On the Effective Date. 8. Upon completion of Step 7, Class A and Class B equity shares of face value ₹ 10 each fully paid up, shall be cancelled, without payment of any consideration to such shareholders and there will be a consequent reduction in the subscribed, issued and paid up equity share capital of the Corporate Debtor. All and every outstanding redeemable preference share of all classes shall be ex .....

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..... nly) into the Corporate Debtor by way of working capital loan secured by first charge on current assets including inventory, spares and receivables and second charge on fixed assets, repayable on demand (unless otherwise agreed by KCR Enterprise LLP at its sole discretion) but only upon and out of replacement finance organized by Corporate Debtor. This loan will carry interest @ 9.5% per annum payable quarterly Progressively. RESOLUTION AMOUNT In Amount (INR crores) Details For Upfront Payment Amount (in INR) Residual Payment (in absolute terms) Terms for payment of Residual Payment Participation offered in Corporate Debtor through Shares (if any, mention the instrument involved with the amount and percentage) Insolvency Resolution Process Cost The unpaid CIRP cost will be paid from the Non-Financial Creditor Allocated Amount. Payment to workmen and employees T .....

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..... Total Admitted Claim Value (INR crores) Debt Serviced (INR crores) Percentage Debt Serviced to the Total Admitted Claim Value Up-front Payment (A) Residual Payment (B) Years of Servicing Residual Payment (C) Secured (Non-related Parties) 4,070.60 9.42 589.05 8 14.70 Unsecured (Non-related parties) 667.69 0.58 35.95 8 5.47 Related Parties 264.19 - - - 0.00 Total 5,082.58 10 625.00 8 12.49 Operational Creditor Settlement Amount means an amount equal to (i) amoun .....

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..... ed and Thirty Eight) of the amount due or payable, by the Corporate Debtor to each financial creditor other than related parties under section 29A of the Code, admitted as claims (including but not limited to amounts admitted as due or payable to: (i) IDBI Bank Limited (ii) Standard Chartered Bank; (iii) Oriental Bank of Commerce; (iv) Axis Bank Limited; (v) Indian Overseas Bank; (vi) State Bank of India; (vii) Punjab National Bank; (viii) Edelweiss Asset Reconstruction Company Limited; (ix) Central Bank of India; (x) UCO Bank; (xi) India Opportunities III Pte Ltd; (xii) Bank of India; (xiii) Assets Cares and Reconstruction Enterprises Limited; (xiv) Punjab Sind Bank), and 100% of amounts due or payable to Andhra Bank, whether admitted or not, shall stand cancelled, waived and remitted by the respective financial creditor, and upon approval of the Resolution Plan, the Financial Creditors as aforesaid shall not have any claim whatsoever against the Corporate Debtor with respect to the amounts cancelled, waived and remitted as aforesaid. (d) Retention of Employees The Resolution Applicant has acknowledged that existing employees of the Corporate Debtor are alread .....

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..... xcept: i. when the same is expressly provided in this Resolution Plan; or ii. when the same is in the ordinary course of business as carried on, as on the date of approval of this Resolution Plan; or iii. when written consent of the Resolution Applicant has been obtained in this regard; (b) except as provided in the Resolution Plan, not make any change in capital structure of the Corporate Debtor either by way of any increase (by issue of equity shares, bonus shares, convertible debentures or otherwise), decrease, reduction, reclassification, sub-division or consolidation, re-organisation or in any other manner, which would have the effect of re-organisation of capital of the Corporate Debtor; and (c) not alter or substantially expand the Corporate Debtor's business, or undertake: (a) any material decision in relation to its business and affairs and operations other than in the ordinary course of business; (b) any agreement or transaction (other than an agreement or transaction in the ordinary course of business); and (c) any new business, or discontinue any existing business or change the capacity of facilities other than that in th .....

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..... ct, 1974, Air (Prevention and Control of Pollution) Act, 1981. (e) All Governmental authorities to waive all past non-compliances of the Corporate Debtor under applicable laws, and the Corporate Debtor and the Resolution Applicant shall not be liable for any non-compliances under applicable laws for the period prior to the Effective Date. (f) To the extent that any Government approvals obtained or required to be obtained by the Corporate Debtor may have lapsed, expired, suspended, cancelled, revoked or terminated or the Corporate Debtor has certain non-compliances in relation thereto, all Governmental authorities to provide at least 6 months after the Effective Date in order for the Resolution Applicant to assess the status of these Government approvals and to ensure that the Corporate Debtor is compliant with them without initiating any investigations, actions or proceedings in relation to such non-compliances. (g) The relevant Governmental Authorities to waive all past non-compliances of the Corporate Debtor under any applicable law, including but not limited to provisions of the Industrial Disputes Act, 1947, the Factories Act, 1948 and the relevant Sh .....

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..... from the Effective Date, all accounts of the Corporate Debtor shall stand regularised and their asset classification shall be standard to the extent permitted under all Applicable Laws. (o) All agreements and arrangements between the Corporate Debtor and any Promoter Related Parties shall stand terminated without any additional liabilities, penalties or other onerous obligations accruing to the Corporate Debtor or the Resolution Applicant. It is clarified that such third parties will not have the right to terminate their agreements with the Corporate Debtor. (p) All incentives and benefits granted to the Corporate Debtor by any Governmental Authority to continue to remain valid and implementing this Resolution Plan will not entitle the relevant Governmental Authorities to withdraw such benefits and incentives. (q) The approval of the Designated Authorised Dealer-Category I and the Reserve Bank of India (RBI), if applicable, pursuant to the applicable provisions of the Foreign Exchange Management Act, 1999 ( FEMA ) and the regulations and directions issued thereunder, with respect to restructuring of foreign currency loan pursuant to the Resolution Plan, .....

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..... by the Resolution Applicant. Sl. No. Reference to the Resolution Plan dated 23rd July 2019 Original Sentence Revision/Addition/Deletion Revised Sentence 1 Section 1(c) - Proposal to Operational Creditors and Other Creditors (excluding Workmen and Employees) - First bullet point; Page no. 3 Total claims by Operational Creditors and other Creditors aggregate to INR 1906,27,86,47, out of which claims aggregating to INR 325,66,81,348 ( OC Debt ) have been verified and admitted for the purposes of CIRP by the Resolution Professional. Revision Total claims by Operational Creditors and Other Creditors aggregate to INR 1906,27,86,471, out of which claims aggregating to INR 325,66,81,348 ( OC Debt ) have been verified and admitted for the purposes of CIRP by the Resolution Professional. 2 Section 1(c) - Proposal to Operational Creditors and Other Creditors (excluding Workmen and Employees) -Seventh Bullet point; Page no. .....

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..... lution Plan - First paragraph; Page 14 Notwithstanding anything to the contrary contained in this Resolution Plan or any other documents including any definitive documents, the Eligible Resolution Applicant [together with the co-applicants] agrees and confirms that there are no conditions, assumptions and/or qualifications for effectiveness of the Resolution Plan by the Eligible Resolution Applicant [and co-applicants], whether before approval by Adjudicating Authority or thereafter until the Effective Date other than the following conditions precedent Revision Notwithstanding anything to the contrary contained in this Resolution Plan or any other documents including any definitive documents, the Eligible Resolution Applicant [together with the co-applicants] agrees and confirms that there are no conditions, assumptions and/or qualifications for effectiveness of the Resolution Plan by the Eligible Resolution Applicant [and co-applicants], whether before approval by Adjudicating Authority or thereafter until the Effective Date. 7 Section 6 - provide an exhaustive list of .....

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..... Balance amount shall be kept in an escrow for a period of 24 months. As and when additional claims get admitted/crystallized, such operational creditors shall be paid in proportion to their share of the Overall Claims. 5. We have heard the Counsel for Resolution Professional and the Resolution Professional in person. This Application is filed under Section 30 (6) of Insolvency Bankruptcy Code, 2016 (hereinafter referred to as CODE ) for approval of the Resolution Plan submitted by Consortium of Sri City Private Limited and KCR Enterprise LLP ( Resolution Applicant ). 6. The Learned Counsel for Applicant stated that as per resolution passed in the 1st CoC Meeting, two Registered Valuers were appointed who submitted their valuation reports on April 26, 2019 and April 30, 2019 respectively as under:- Sl.No. Name of the Valuer Liquidation Value (Rs in crores) Fair Value (Rs. In crores) 01 Duff Phelps India Private Limited 585.50 1,161.00 02 .....

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..... Dissented 13 Assets Care and Reconstruction Enterprise Limited (ACRE). 1.54% Voted for 14. Punjab Sind Bank 1.10% Voted for TOTAL 100% 8. The Resolution Professional has furnished certificate in Form-H as per Regulation 39 of CIRP Regulations, 2016. The amounts provided for the stakeholders under the Resolution Plan is as under:- (Amount in lakhs) Sl. No. Category of Stakeholder Amount Claimed Amount Admitted Amount Provided under the Plan# Amount Provided to the Amount Claimed (%) 1. Secured Financial Creditors who are not related parties of the Corporate Debtor 4,07,060.34 4,07,060.34 59,847.47 .....

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..... Sl. No. Category of Share holder No. of shares held before CIRP No. of shares held after the CIRP Voting share (%) held before CIRP Voting share (%) held after CIRP 1 Equity 404,140,146 Nil 100% Nil 2 Preference 434,742,292 Nil Nil Nil 10. The Resolution Professional filed copy of Performance Bank Guarantee dated 06.08.2019 for ₹ 50,00,00,000/- on behalf of Consortium of Sri City Private Limited and KCR Enterprise LLP ( Resolution Applicant ) valid up to 05.08.2020. The Resolution Professional filed an undertaking dated 27.07.2019 at page Nos. 148 150 as required under Section 29A of the Code to the effect that the Resolution Applicant it is not disqualified under the Code for submission of Resolution Plan. Further declaration to the effect that Resolution Plan does not contra .....

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..... icant has to obtain necessary approval if any required with one year as per Section 31(4) of the Code. ORDER 17. Thus, Resolution Plan submitted by Resolution Applicant Consortium of Sri City Private Limited and KCR Enterprise LLP ( Resolution Applicant ) along with the addendum which is approved by members of CoC having 75.91% voting share stands approved as per Section 31(l) of the Code. In other words we are satisfied with the Resolution Plan as approved by Committee of Creditors under Section 30(4) of the Code and it meets the requirement as referred to in Section 30(2) of IBC, 2016. Accordingly, the Resolution Plan stands approved and the same is binding on Corporate Debtor, its employees, Members, Creditors including the Central Government, any State Government or any Local Authority to whom a debt in respect of the payment of dues arising under any law for the time being in force, such as authorities to whom statutory dues are owed, Guarantors and Stakeholders involved in the Resolution Plan in terms of Section 31(l) of the Code. 18. The moratorium order passed under Section 14 shall cease to have effect from today. 19. The Resolution Prof .....

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