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TMI Blog2020 (9) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... simply forgot to inform the Bench regarding IA No.904/MB.IV/2020, even after being informed of it on the morning of the hearing. He has also sought to pin the blame on the Respondent Company and his arguing counsel for the error on his part. The actions on the part of Mr Vijay Tiwari amount to obtaining orders of the Bench behind the back of the Applicant Bank. This cannot be encouraged. Further, as a professional, it does not behove Mr Vijay Tiwari to blame others for his mistake, when he is the professional on record representing the Respondent Company. However, considering that the authorised representative is young and that he has a long way to go in his career, we restrain ourselves from imposing any costs.We, however, advise him to be more careful in future. Considering all factors, the following further directions are hereby given: (a) The meetings referred to in this Tribunal s order dated 12.06.2020 shall be confined to that of Operational Creditors alone, and shall not include the Financial Creditors, who are outside the purview of the proposed Scheme. (b) The sixty-day time limit to conduct the meetings shall now be counted from 27.07.2020 instead of 12.06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cured creditors; (d) The report by the auditor that the fund requirements of the company after the Corporate Debt Restructuring (CDR) as approved shall conform to the liquidity test based upon the estimates provided to them by the Board of Directors of the company, is not attached; (e) The requisite statement that the company proposes to adopt the CDR guidelines specified by the Reserve Bank of India (RBI); (f) Valuation report in respect of the shares and the property by a registered valuer is not attached; and (g) The terms of the Scheme contemplate a debt restructuring of the financial creditors in addition to Operational Creditors. 2.2. Notice of the IA was duly served on the Respondent Company, viz., Supreme Infrastructure India Limited by the Applicant Bank. Affidavit in reply has been filed in this behalf on 12.07.2020 by Mr Sidharth Jain, authorised representative. 2.3. In its reply, the Respondent Company has inter alia stated that (a) the Applicant Bank is holding not more five percent of the total debt, and therefore, the IA itself is not maintainable under section 230 of the Companies Act, 2013. Our attention has been drawn to the proviso to secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by both sides, and upon perusal of the revised affidavit dated 23.07.2020 filed by the Respondent Company, it is hereby ordered as follows: - (a) The Scheme filed by the Respondent Company shall apply only to the Operational Creditors (as defined under the Insolvency and Bankruptcy Code, 2016) and not to its Financial Creditors. (b) The Respondent Company shall identify clauses in the existing Scheme that casts a shadow on the Financial Creditors of the Company, and remove the same. Therefore, the revised Scheme shall be circulated to all stakeholders to enable them to file objections, if any, to the Scheme. (c) In so far as the Applicant Bank is concerned, their rights, remedies and interests, whether arising out of any court order, or bilateral arrangement or any undertaking given by the Respondent Company qua the Applicant Bank, shall remain wholly unaffected by the Scheme in any manner whatsoever. (d) All objections to the Scheme, including the locus standi of any Objector, shall be considered at the time of final hearing of the revised Scheme. We are of the view that the stage of application for directions regarding meetings is not the correct stage to consider ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, Mr Vijay Tiwari failed to inform the Bench about the pending IA. On 13.05.2020, the Bench posted the matter for hearing to 02.07.2020. (d) The Respondent Company filed IA No.994/MB.IV/2020 for urgent hearing of CA (CAA) No.401/MB.IV/2020. Therefore, the matter was posted for hearing on 12.06.2020. (e) On 12.06.2020, this Bench allowed IA No.994/2020, and took on board the CA (CAA) No.401/MB.IV/2020 for hearing. Even on that date, no notice of hearing was given to the Applicant Bank, nor did the learned authorised representative bring to the attention of the Bench the factum of filing of the IA No.904/MB.IV/2020 seeking to intervene and oppose the CA (CAA) No.401/MB.IV/2020. The Bench heard the learned Senior Counsel for the Respondent Company and allowed CA (CAA) No.401/MB.IV/2020, giving directions for holding the meeting of the creditors of the company. 3.3. In this milieu, the Applicant Bank sought recall of the order dated 12.06.2020 and restoration of CA (CAA) No.401/MB.IV/2020 to file for hearing. Pending disposal of this IA, the Applicant Bank prayed that the order dated 12.06.2020 be stayed. 3.4. The present IA was taken up for hearing along with IA No.100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m imposing any costs.We, however, advise him to be more careful in future. 3.8. IA No.1002/MB.IV/2020 is disposed of accordingly. Interim Orders shall stand vacated. 4. Further directions 4.1. Considering all factors, the following further directions are hereby given: (a) The meetings referred to in this Tribunal s order dated 12.06.2020 shall be confined to that of Operational Creditors alone, and shall not include the Financial Creditors, who are outside the purview of the proposed Scheme. (b) The sixty-day time limit to conduct the meetings shall now be counted from 27.07.2020 instead of 12.06.2020. (c) In case physical meeting of the Operational Creditors is feasible, the same shall be held within the local limits of Mumbai City. In case the meetings of the Operational Creditors are convened through any audio-visual means capable of being recorded, then the unedited raw footage of the meeting to be conducted by videoconferencing shall be preserved for record and also submitted to this Tribunal along with an affidavit to this effect. (d) It shall be the duty of the Respondent Company to ensure that the unedited raw footage of the meeting shall be preserved i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng circulation in the State of Maharashtra, not less than thirty days before the date fixed for the meeting, and in terms of rule 7 ibid. 4.7. The provisions of section 103 of the Companies Act, 2013, shall apply to the meeting of the Operational Creditors of the Company, and any reference to members in the said section shall be read as reference to Operational Creditors. In other words, the provisions of section 103 ibid shall apply mutatis mutandis to the meeting of the Operational Creditors. 4.8. Voting by proxy or by authorised representative in case of bodies corporate shall be permitted, provided that the proxy in the prescribed form, with applicable changes made therein such that the reference to members shall be read as reference to Operational Creditors, duly signed by the persons entitled to attend and vote at the meetings are filed with the Company at its Registered Office not later than forty-eight hours before the Meeting. 4.9. The value of the outstanding amount of each Operational Creditor shall be in accordance with the last audited books of the Company. Where the entries in the books are disputed, the Chairman of the Meeting shall determine the value o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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