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TMI Blog2019 (10) TMI 1393X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the resolution plan is approved by the CoC in its commercial wisdom. Therefore, we do not find any merit in objections raised by the erstwhile promoter of the Corporate Debtor and the same are rejected. Application disposed off. - CP (IB) NO. 1329 (MB) OF 2017, MA NOS. 500/2019, 660, 853 TO 855 AND 977/2019 - - - Dated:- 16-10-2019 - V.P. Singh, Judicial Member And Rajesh Sharma, Technical Member For the Appearing Parties : Anuja Bhansali, Prateek Seksaria, Rachana Kapasi Shah, Kingston D'souza and S. Joshi, Advs. ORDER RAJESH SHARMA, TECHNICAL MEMBER. 1. The Miscellaneous Application (MA) No. 660 of 2019 is filed under section 30(6) of Insolvency and Bankruptcy Code, 2016 (I B Code) in the C.P. No. 1329 of 2017 which was admitted u/s 7 of I B Code vide order of this Tribunal dated 13-4-2018 initiating Corporate Insolvency Resolution Process (CIRP) against Metallica Industries the Corporate Debtor. 2. The MA 660/2019 is filed by the Resolution Professional (RP) of the Corporate Debtor. The RP has filed this application under section 30(6) of the I B Code, seeking orders for approval of the resolution plan for the Corporate Debtor submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alculating 270 days of CIRP, spent under litigation, starting from 23-10-2018 till 29-10-2018 as during this time CoC could not proceed with the CIRP of the corporate debtor under orders of this Tribunal. 9. On 11-2-2019, the CoC in its meeting approved KIPL's resolution plan with 85.89% votes in favour. 10. Since the resolution plan submitted by KIPL was approved by CoC with a vote share of 85.89%, the applicant filed MA 660/2019 under section 30(6) of IBC, 2016 before this Bench for approval of the resolution plan submitted by KIPL. Salient features of the Resolution Plan 11. It is stated in the Resolution Plan that the Corporate Debtor was incorporated on 18-3-1995 for carrying out the business of infrastructure development. The major property of the Corporate Debtor is a Project Land admeasuring 6645.10 sq.mtrs., at Kandivali West, Mumbai. The Corporate Debtor had started real estate project on the said project land in the year 2010 and had sold majority of the units/galas. 12. The Resolution Applicant is a company promoted by the affected gala allottees. As on 10-9-2019, as many as 325 gala allottees have given their consent to the Resolution Plan. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cost incurred by Metallica Industries Limited at actuals against documentary evidence) to State Bank of India. The right of the secured financial creditor, i.e. State Bank of India against the guarantors/corporate guarantors/collateral of third parties given to State Bank of India under the relevant existing agreements with State Bank of India are protected and will remain unaffected. Unsecured Financial Creditor - Galas Allottees 52,86,62,932 Gala allottees as per list are given in Annexure 7 to the Approved Resolution Plan shall get completed gala upon payment of additional consideration as per the terms and conditions of the Approved Resolution. Eleven gala allottees, whose galas cannot be legalised, will get 5% (five per cent) of amount of claim admitted by the Resolution Professional as full and final settlement of their dues. Operational Creditors (excluding workers employees) 1,75,252 Nil as liquidation value allocable to them is zero. Operational Creditors - workmen employees Nil Nil as no claim recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and reporting to Financial Creditors in the monthly meeting. 20. The monitoring agency shall include RP, representative of SBI and C.A. Hemant J. Mehta (IP Registration No. IBBI/IPA- 001/IP-P00027/2016-17/10060) as recommended by KIPL and approved by CoC. The monitoring agency shall monitor the day to day operations of the company and provide regular updates to the Resolution Applicant and members of CoC/RP till all the approvals necessary for the implementation of the resolution plan are in place, and a professionally managed Board is appointed by the Resolution Applicant. 21. The Resolution Plan proposals to appoint a Board to manage the company that would be formed within 30 days of approval of Resolution Plan by the Adjudicating Authority. The Board shall be accountable for the day to day operations of the company. 22. The Resolution Plan provides for amendment in the Memorandum of Association Articles of Association of the company within 90 days of the approval of the Resolution Plan. 23. The Resolution Plan has dealt with the interests of all stakeholders of the Corporate Debtor and the statement showing how interest of all stakeholders is dealt and set out in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 29A of the Code and other provision of applicable laws. 26. The RP has certified, as per Regulation 39 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, that the contents of the resolution plan, as approved by the Committee of Creditors with more than 66% majority in favour, meets all the requirements of the I B Code and the regulations as applicable on the date thereof. 27. The Resolution Applicant has declared that neither the Resolution Applicant nor any of its related parties have failed to implement or contribute to the failure of implementation of any other resolution plan approved by the Adjudicating Authority at any time in the past. 28. Any relief sought for in the Resolution Plan, where the contract/agreement/understanding/proceedings/actions/notice etc. is not specifically identified or is for future and contingent liability, is at this moment rejected. 29. The Resolution Applicant, on taking control of the Corporate Debtor, shall ensure compliance under all applicable law for the time being in force. 30. We shall clarify here that any resolution applicant shall takeover the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to a sister concern of the Corporate Debtor which was assigned to the Corporate Debtor. An agreement of sale is said to be executed between the Corporate Debtor and the Claimants. Claimants have sought to rely upon, inter alia, ledger account showing receipts of the balance consideration, receipt of payment of money, a TDS certificate in favour of the Corporate Debtor. 38. The RP has filed its affidavit in reply stating that the reliance placed upon the loan assignment agreement dated 31-1-2014 is misplaced as it is improperly stamped. It is further stated that the Claimants were involved in money lending business. This is vehemently denied by the Claimants stating that the transaction with the Corporate Debtor was that of purchase of industrial units and not like loan transaction. However, this stand of the Claimants is untenable in light of the history of the transaction with sister concern of the Corporate Debtor, that led to alleged allotment of Galas. As per the submissions of the Claimants, clearly their transaction with sister concern of Corporate Debtor was like a loan transaction, and the Corporate Debtor was assigned the liability of this loan transaction. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the guarantors and the proposal in the Resolution Plan that SBI shall, after payment as per the resolution plan, be free to proceed against the guarantors of the Corporate Debtor. It is further contended that being the suspended director and guarantor of the Corporate Debtor, he was not given notice and minutes of meetings of CoC. 42. The RP has submitted that, it has intimated the guarantors of the Corporate Debtor about initiation of CIRP, however, none of the guarantors had filed a claim with him against the guarantees given by them for the Corporate Debtor. It is submitted that the guarantors are now, after expiry of time to file claim, estopped from claiming relief under the Contract Act. 43. The Guarantor and suspended Director of the Corporate Debtor has a copy of the resolution plan. Further, the objection of the Guarantor to the impugned clauses about financial creditor's right to recover dues from the Guarantor of a Corporate Debtor is settled by the judgment of the Hon'ble NCLAT in Lalit Mishra v. Sharon Bio-Medicine Ltd. [Company Appeal (AT) (Insolvency) No. 164 of 2018, dated 19-12-2018]. It is held that the intention of the legislature cannot be to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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