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TMI Blog2017 (12) TMI 1763X X X X Extracts X X X X X X X X Extracts X X X X ..... ency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulation, 2016. Subsequently, the State Bank of India also which earlier remained absent in such voting. Later on it has duly concurred with the CoC, such decision dated 07.12.2017 for approval of the resolution plan. Hence, it is deemed that 100% of CoC member has agreed for and approved the resolution plan as submitted by the Atyant Capital India Fund - The RP received a legal opinion and vetting from M/s Luthra Luthra, M/s Vinod Kothari Co. and M/s J. Sagar Associates, all of them have confirmed the resolution plan opining that such Plan is in conformity with the provisions of Insolvency and Bankruptcy Code. 2016. As the Resolution Applicant M/s Atyant Capital India Fund has made such declaration that the Resolution Plan does not contravene any provision of the law for time to time being in force which is annexed with the present application and to be formed part of the resolution plan. A perusal of Proposed Resolution Plan shows that all the requirement of the IBC and CIRP regulations have been complied with. Further, the proposed Resolution Plan seems to be bona fide and benefici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the prospective Resolution Applicant should have minimum Net Worth of ₹ 100 crores as on 31.03.2017. IV. That 13 Expression of Interest were received from the following persons: - i. Oil India Limited; ii. Hindustan Oil Exploration Company Limited; iii. Atyant Capital India Fund-I; iv. Asset Reconstruction Company (India) Limited [ARCIL]; v. UV Asset Reconstruction Company Limited; vi. PFH Oil and Gas Private Limited; vii. Quippo Oil and Gas Infrastructure Limited (A SREI Initiative); viii. Edelweiss Asset Reconstruction Company Limited; ix. Infina Finance Private Limited; x. Nauticawt Energy Solutions; xi. Geopetrol International Inc.; xii. Mitcon Consultancy and Engineering Service Limited; xiii. IPR Energy. V. That the Information Memorandum was to be shared with the prospective Resolution Applicants who fulfilled the below conditions: i. Minimum Net Worth of ₹ 100 Crores as on March 31, 2017, as stipulated by Committee of Creditors; and ii. Received undertaking as per Section 29(2) of the Code, before the last date fixed up by the Committee of Creditors i.e. September 30, 2017. VI. That base on the above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exploration Company Limited was held on November 20,2017. The CoC have requested the Resolution Applicant to further enhance the consideration and also decided to call for earnest money deposit of Rupees Five crores from the Resolution Applicants; XII. That pursuant to the instructions of the Committee of Creditors, the Resolution Professional sought revised Resolution Plans with the following clarifications/modifications: i. Rate of Interest should be at least 12% on deferred payments; ii. Equity and Royalty payments should be monetised and consolidated consideration should be offered; iii. Substantial increase in the consideration amount offered. XIII. That Committee of Creditors met on December 04, 2017 to finalize the Resolution Plan. Both the Resolution Applicants were also invited to the meeting to present their final Resolution Plans. Before inviting the Resolution Professional proposed for inter se bidding/auction to realise better consideration and value discovery, to which the Committee of Creditors agreed; XIV. That as decided by the Committee of Creditors in its meeting held on November 20, 2017 at Mumbai, the Liquidation Value was revised by the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or retain any interest on JOGPL and the existing promoter group companies to JEKPL shall have no rights to the assets to JOGPL whatsoever. This should be ensured and facilitated. Cannot be enforced or tenable as the lenders can only assign those rights/securities which they hold. Further, despite the request by the Committee of Creditors, M/s Hindustan Oil Exploration Company Limited chose not to participate in the process adopted by the Committee of Creditors during its meeting held on December 04, 2017 and the Committee of Creditors had decided to proceed with the Resolution Plan submitted by Atyant Capital India Fund-I; XVIII. That the Committee of Creditors at their meeting held on December 07, 2017 at New Delhi approved the Resolution Plan of Atyant Capital India Fund I through voting as per Section 30(4) of the I B Code, 2016, read with Regulation 39 (3), of the IBBI (Insolvency Resolution Process for the Corporate Person) Regulation, 2016. The result of voting is as under: Agenda Item For Against Abstained Approval of Resolution Plan of M/s Atyant Capital India Fund I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government of India is not enforceable by the order of the Adjudicating Authority and if the bank guarantee provided by Axis Bank is invoked. Axis Bank shall only be entitled to receive the pro rata amount of the consideration provided under this Resolution Plan in proportion to their claim to the total claim accepted at any point of time which shall be kept in an escrow account (modalities to be discussed with lenders). No additional amount shall be paid to Axis Bank and any guarantee or counter-guarantee provided by JEKPL Private Limited shall be extinguished; VIII. There shall be no liability under the Income-tax Act, 1961, including any liability under the Minimum Alternate Tax on account of the transactions envisaged under this resolution plan and the Adjudicating Authority shall pass an order to that effect; IX. In summary, all the liabilities of JEKPL Private Limited including term borrowings, current, non-current and contingent liabilities and various guarantees issued by the banks shall be written off cancelled/annulled with no further liability to Atyant Capital or its SPV (Invenire Energy Private Limited) or JEKPL Private Limited in lieu of the Consideration a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bank has not yet been supplied with a copy of the resolution plan. Further, an application seeking for stay of the present proceedings has been filed and is now sub judice before the Hon'ble NCLAT. However, the PCS representing the RP submitted that he is not aware of filing of such stay application. However, there is no stay till date. Considering such circumstances, we can presume that as of today there is no stay from Hon'ble NCLAT in respect of proceeding of this Tribunal or for pronouncement of order on approval or otherwise of the resolution plan, therefore, this court can proceed further to pass an order. However, this order would be subject to outcome of pending appeal and appropriate directions that may be issued by the NCLAT in pending appeal. 6. During the course of hearing previously we have heard the submission of Sh. Nesar Ahmad, learned PCS for the RP. Having heard his submission we find that the resolution plan as submitted by the Atyant Capital India Fund - (I) have been duly examined and found to be inconformity with the mandator/provision/compliance under Section 30(2) of the insolvency and Bankruptcy Code. 7. In addition to the above, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udges and the greater the potential for judges to interfere in what are essentially commercial decisions of creditors to approve or reject a plan. In particular, it is highly desirable that the law not require or permit the court to review the economic and commercial basis of the decision of creditors (including issues of fairness that do not relate to the approval procedure, but rather to the substance of what has been agreed) nor that it be asked to review particular aspects of the plan in terms of their economic feasibility, unless the circumstances in which this power can be exercised are narrowly defined or the court has the competence and experience to exercise the necessary level of commercial and economic judgment. For these reasons, it is desirable that the requirements for approval of the plan by creditors and confirmation by the court be carefully designed to minimize potential problems of the kind discussed here. 9. Effect of an approved and, where required, confirmed plan 64. Where the plan is approved by the requisite majority of creditors and equity holders and, where required, confirmed by the court, insolvency laws generally provide that it will bind all affe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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