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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 ..... nt in IA No. 196/2020 & CA No.493/2019 : Mr. Ajay Kalra, Advocate For the Applicant in CA No. 1194/2019 : Mr. Dharam Paul Garg, Advocate For Respondent No.2 in CA No.493/2019 and IA No.196/2020 : Mr. Gaurav Mankotia, Advocate For the Applicant/Resolution Applicant in IA No.194/2020 : 1. Mr. Anand Chhibbar, Senior Advocate 2. Mr. Amitabh Tewari, Advocate For JMFARC Ltd. : 1. Mr. Abhishek Anand, Advocate 2. Mr. Viren Sharma, Advocate ORDER IA No.195/2020 1. Small Industries Development Bank of India ('SIDBI'), the applicant herein, and one of the financial creditors of M/s Parabolic Drugs Limited ('Corporate Debtor'), and who did not vote in favour of the Resolution Plan by abstaining from the voting, filed the instant application being IA No.195/2020 on 14.04.2020, seeking to intervene in CA No.389/2019 and to give an opportunity to M/s Akums Drugs and Pharmaceuticals Limited ('Resolution Applicant') to amend the Resolution Plan or that this Adjudicating Authority may reject the Plan and not to pronounce the order in CA No.389/2019 till the instant application i.e. CA No.195/2020 is decided. 2. The Corporate Insolvency Resolution Process (for short 'CIRP') against the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant to this effect have been enclosed as Annexure A-1 (colly) to this IA. 5. Heard Mr. Rakesh Gupta, learned counsel for the applicant and Mr. Sumesh Dhawan, learned counsel for the Resolution Professional; and Mr. Anand Chhibbar, learned senior counsel, for the Resolution Applicant and perused the pleadings on record. 6. The learned counsel appearing for the applicant, in support of the IA averments, raised the following grounds: - a. The applicant i.e. SIDBI has not voted in favour of the Resolution Plan and abstained from voting, therefore, instead of treating it as dissenting financial creditor, it was treated wrongly as an assenting creditor and as a result the minimum value required to be earmarked for a dissenting financial creditor in terms of Section 30(2)(b) of the Code, was not earmarked in favour of the applicant. b. Further, the applicant and other financial creditors such as Union Bank of India, Central Bank of India and Bank of Baroda, who were the dissenting financial creditors, were required to be given priority in the distribution under the Resolution Plan in terms of Section 30(2)(b) of the Code read with Regulation 38 of the 2016 Regulations, but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations, the learned counsel appearing for both sides advanced extensive arguments in support of their contentions. However, 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. 10. In the circumstances and for the aforesaid reasons, I do not find any merit in the IA and accordingly, the same is dismissed. IA No.199/2020 11. Export Import Bank of India, also a financial creditor, (in short 'EXIM Bank'), filed the instant IA on 29.05.2020, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment (approval /disapproval of the Resolution Plan) in the main petition CP (IB) No.102/Chd/Chd/2018 till the adjudication of the application filed by the Applicant viz. CA-493 of 2019 and (b) In this context pass any other order as may be deemed fit under the facts and circumstances of the present case." 17. It is the case of the Resolution Applicant that pursuant to the admission of Corporate Insolvency Resolution Process against the corporate debtor, its Directors and officers, who are the respondents in these CA and IA, have fraudulently transferred/removed goods from the premises which were pledged in favour of the applicant in the instant applications and thereby, have wilfully and knowingly violated the moratorium and hence, the CA/IA. 18. The respondent No.1/Resolution Professional, vide his reply filed in CA No.493/2019 submitted that:- "4. It is stated that the Applicant in terms of Regulation 8 of CIRP Regulations submitted its claim in Form C dated 10.09.2019 along with the relevant documents to the Interim Resolution Professional. It is submitted that vide its Claim Form, the Applicant claimed an amount of Rs. 24,21,88,067/- along with the stock of 689800kg/26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for Corporate Persons) Regulations, 2016, will be continued even after approval/rejection of the Resolution Plan, as the case may be and will be decided in accordance with law. In view of the same, I do not find any merit in CA No.493/2019 seeking identical relief as that of CA No.74/2019 and in IA No.196/2020 seeking not to pronounce the order in CA No.389/2019 till the disposal of CA No.493/2019. 22. In the circumstances and for the aforesaid reasons, CA No.493/2019 and IA No.196/2020 are dismissed. CA No. 1194/2019 23. Mr. Sundeep Thakar filed this CA on 09.12.2019 against the Resolution Professional of M/s Parabolic Drugs Limited under Section 60(5) of the Code read with Rule 11 of the NCLT Rules, 2016, seeking the following reliefs :- ""In view of the facts stated above the applicant prays humbly to this Hon'ble Bench to direct the Resolution Professional to immediately make the pending payment on account of salary to the applicant for services rendered during CIRP before the approval of the Resolution Plan or if the claim of applicant has not been included in the Resolution Plan pending for approval the Resolution Professional may kindly be directed to include the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere absolutely necessary and inevitable for the conduct of the CIRP of the Corporate Debtor. 7. That it is pertinent to mention that the Applicant was the Vice President of the International Trading Division of the Corporate Debtor. The operations of the plant of the Corporate Debtor was closed from 21.09.2018 and that of the international trading division was also discontinued during the CIRP period of the Corporate Debtor and the Applicant was not a working employee of the Corporate Debtor during the CIRP period." 26. The respondent/Resolution Professional further submitted that the Resolution Plan of the corporate debtor as approved by the COC has been submitted to this Adjudicating Authority vide CA No.389/2019, filed on 23.05.2019 and the same is pending consideration before this Adjudicating Authority. It is also stated that the Resolution Applicant provided an amount of Rs. 3,75,60,159/- towards the workmen and employees dues in the said Resolution Plan, in terms of the provisions of the Code. Accordingly, the respondent/Resolution Professional submits that so far as the salary dues of the applicant prior to the initiation of CIRP, the applicant's claim was admitted and ..... 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