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TMI Blog2020 (9) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of the differential amount, no further orders are required to be passed in the instant IA, with regard to the first ground. Payment to the dissenting financial creditors in priority over the assenting financial creditors in terms of Section 30(2)(b) read with Regulation 38(1)(b) of the 2016 Regulations - HELD THAT:- This is an issue to be considered by this Adjudicating Authority while deciding CA No.389/2019 filed under Section 30(6) and Section 31(1) of the Code, seeking approval of the Resolution Plan, since the same falls under Section 31 (1) i.e. if the adjudicating authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of Section 30 meets the requirement as referred to in sub-section (2) of Section 30 . No financial creditor either assenting or dissenting can challenge a Resolution Plan, as approved by the CoC, even before the Adjudicating Authority approve the said Plan on the ground that the Plan does not meet the requirements of Section 30 (2) of the Code. Hence, there is no need to examine the rival submissions on this issue at this stage. Application dismissed. - IA Nos.195/2020, IA No.199/2020, IA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andemic novel Covid-19 and due to some of the IAs which are being decided today and filed for seeking not to pronounce orders in CA No.389/2019, the orders could not be pronounced in the said CA and accordingly, the same is pending as on date. 3. The applicant in the instant IA submits that it was one of the financial creditors of the corporate debtor and when the Resolution Plan of Resolution Applicant was put for voting for approval in the 10th Meeting of the CoC, held on 18.05.2019, out of the total 8 financial creditors who were members of the CoC, only M/s JM Financial Assets Reconstruction Company Limited (in short JMFARCL ) having a voting share of 71.67%, voted in favour of the Resolution Plan and the applicant having voting share of 1.71% abstained from voting and whereas all the remaining financial creditors did not vote in favour of the Resolution Plan. Therefore, except JMFARCL, all the remaining 7 financial creditors including the applicant herein, are to be treated as dissenting financial creditors. Accordingly, all the said 7 dissenting financial creditors including the applicant herein, being the dissenting financial creditors should be treated in terms of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.05.2019. Section 30 (2)(b) of the Code was amended vide Amendment Act No.26 of 2019 which came into force with effect from 16.08.2019. In view of the said amendment and in view of the direction of this Adjudicating Authority passed in order dated 20.09.2019 in CA No.389/2019, the Resolution Applicant filed an addendum dated 09.10.2019, proposing changes for the payment to the dissenting creditors in terms of amended Section 30 of the Code, however, in the said addendum dated 09.10.2019, inadvertently, the applicant-SIDBI was treated as an assenting creditor instead of dissenting creditor. When the said fact was brought to the notice of the respondents by the applicant, the Resolution Applicant agreed to pay the differential amount payable to the applicant- SIDBI amounting to ₹ 15,42,300/- and the same was intimated to the other financial creditors. 8. In view of the above submissions made on behalf of the Resolution Professional as well as the Resolution Applicant with regard to treating of the applicant-SIDBI as a dissenting creditor and providing specific amount as required under Section 30(2)(b) of the Code and also since the applicant has not disputed the fact of wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by raising identical ground i.e. ground No.2 raised by the applicant in IA No.195/2020. Identical arguments were advanced by the learned counsel for the applicant in the instant IA also. 14. Accordingly, and in view of the reasons mentioned in IA No.195/2020, the instant IA is also dismissed. CA No.493/2019 IA No.196/2020 15. PEC Limited, a financial creditor of the corporate debtor- Parabolic Drugs Limited, filed the instant CA No.493/2019 on 08.07.2019 under Rule 11 of the NCLT Rules, 2016 and Section 66, 18 and 25 of the Code read with Regulation 36 of 2016 Regulations, seeking the following reliefs:- (a) Allow the present application and direct Resolution Professional to initiate appropriate action against directors/officers in charge of Corporate Debtor for fraudulently and wrongfully removing the stock of raw materials which were pledged in favour of the Applicant in terms of provisions of Section 66 of IB Code (viz. Fraudulent Trading or Wrongful Trading); (b) pass appropriate directions against directors of Corporate Debtor for wilfully and knowingly violating provisions of moratorium and fraudulently removing the stock of raw materials which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that various requests of the applicant with regard to physical verification of the pledged stock was attended to by the Resolution Professional and the issues raised by the applicant were discussed in various CoC Meetings, wherein the applicant was also one of the member and finally, as resolved by the CoC, the Resolution Professional has filed CA No.74/2019 under Section 25(2)(J) read with Sections 43 to 51 66 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, seeking the following reliefs against the respondents:- 8 in the circumstances, the Applicant most respectfully prays that this Adjudicating Authority be pleased to take on record the findings on transactions in accordance with Section 43-51 and 66 of the Code read with Regulation 5 of the CIRP Regulations in the Special Transaction Audit Report dated 21.12.2018. xx xx xx xx xx (i) Take on record the transaction enumerated in para 5 of the application with liberty to refer to the same at any stage of present proceedings before this Adjudicating Authority; and (ii) pass any such other or further order(s) as this Adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant did not get any salary except a part payment of ₹ 8,25,432/- and the total outstanding dues of salary reimbursement and perquisites as on 30.11.2019 amounts to ₹ 44,78,931/-, while other employees being paid regularly. Since the repeated requests and reminders in this regard went in vain, he filed the instant CA. 25. The respondent/Resolution Professional vide his reply filed vide Diary No.683 dated 24.01.2020 submitted as under:- 4. It is submitted that pursuant to the public announcement dated calling for claim from the creditors of the Corporate Debtor, the Applicant being an employee of the Corporate Debtor submitted its claim in Form D dated 12.09.2018 under Regulation 9 of the Insolvency and Bankruptcy (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations) for an amount of ₹ 4,16,210/- and the same was verified and admitted by the Interim Resolution Professional. Copy of Form D submitted by the Applicant is annexed herewith and marked as ANNEXURE-1. 5. It is submitted that operations of the factory of the Corporate Debtor were shut down from 21.09.2018 due to financial difficulty of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effect that the corporate debtor was functioning after 21.09.2018 i.e. during the CIRP Period and that the applicant worked actually for the benefit of the corporate debtor during the CIRP period. 28. Further, the submission of the applicant that since he was handling an International Formulation Business of the corporate debtor and not related to the factory activities at all, he was not aware whether the factory of the corporate debtor was functioning or not during the CIRP Period, is untenable and against the facts on record. It is not in dispute that his salary dues prior to CIRP period were admitted as per his claim and the same were part of the Resolution Plan, along with the salary dues of other workmen and employees. 29. In these circumstances and for the aforesaid reasons, I do not find any merit in the instant CA and accordingly the same is dismissed. IA No.194/2020 30. This IA has been filed by the Resolution Applicant under Section 60(5) of the Code, seeking disposal of CA No.389/2019 which was filed by the Resolution Professional under Section 30(6) and Section 31(1) of the Code, seeking approval of the plan. 31. Since, CA No.389/2019 was heard an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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