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TMI Blog2020 (3) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... d. [2021] 224 Comp Cas 322 (NCLT)), seeking approval of the resolution plan of the Adani Ports Special Economic Zone Ltd. ("APSEZ"). 2. The applicant submits that this application is filed seeking order for approval of the resolution plan which is approved by the members of committee of creditors (CoC) with 99.68 per cent. voting share. It is stated that DBM Geotechnics and Constructions Ltd., an operational creditor of the corporate debtor filed a petition under section 9 of the I and B Code to initiate corporate insolvency resolution process (CIRP) against Dighi Port Ltd. Further, by the order of this Bench dated March 25, 2018 (See DBM Geotechnics and Constructions P. Ltd. v. Dighi Port Ltd. [2021] 224 Comp Cas 276 (NCLT)., the petition for initiation of CIRP was admitted and Ms. Purnima Dhiraj Shetty was appointed as an interim resolution professional (IRP). Thereafter, the RP was appointed as the resolution professional pursuant to order of this Bench dated August 6, 2018. 3. The applicant also submitted that as per the process document dated October 12, 2018 the last date for submission of binding resolution plan was October 26, 2018, which was later modified and amended to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal. Thereafter, on May 27, 2019 JNPT sought a further period of 30 days to file the aforesaid affidavit. Then on June 25, 2019 JNPT filed the affidavit expressing its inability to accept the modifications directed by this Tribunal in the resolution plan. 10. The applicant submitted that, therefore, in the 16th CoC meeting held on July 8, 2019 the CoC resolved to give chance to all the three existing resolution applicants namely JNPT, APSEZ and Veritas Consortium and the CoC filed an affidavit before this Tribunal intimating the aforesaid decision. 11. The applicant submitted that the promoter of corporate debtor had filed an appeal against initiation of CIRP and on July 24, 2019 the hon'ble National Company Law Appellate Tribunal passed an order and gave the promoters of the corporate debtor 3 weeks' time (which was to end on August 14, 2019) to arrive at a settlement with the creditors of the corporate debtor. 12. It is further submitted that in the 17th CoC meeting held on August 13, 2019 the promoters presented to the CoC the contours of the offer submitted by Balaji Infra Projects Ltd., the promoter holding company vide proposal letter dated July 26, 2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and INR 475 crores as deferred payment starting from 2024 along with 10 per cent. equity in addition to payment of CIRP cost and dues payable to the Maharashtra Maritime Board in priority to other dues. The promoter offered INR 680 crores to the financial creditors and a total of INR 50 crores towards the CIRP costs and payment to the operational creditors (including tax dues and due payable to Maharashtra Maritime Board, etc.) by way of settlement of their claims ("settlement offer"). The promoter however did not submit an earnest money deposit as was required by the CoC at the 19th meeting of CoC. Further, the promoter was requested to provide clarity on the source of funds by the evaluation advisor. 16. The applicant submitted that in the 21st meeting of CoC held on September 9, 2019 APSEZ and Veritas Consortium presented their respective resolution plans received on September 4, 2019. The status and observations of forensic auditors were also discussed. 17. The applicant further submitted that in the 22nd CoC meeting held on September 13, 2019 it was decided that in view of the settlement offer given by the promoter, a resolution under section 12A of the I and B Code for wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is approved by majority of the CoC (99.68 per cent.). In view of the aforesaid and pursuant to the instructions from the CoC, the applicant has filed this application for approval of the resolution plan submitted by APSEZ. 22. The applicant states that APSEZ has fulfilled the criteria and has complied with the provisions of the Code and the CIRP Regulations for it to be considered as the successful resolution applicant. An affidavit by APSEZ confirming eligibility under section 29A of the Code is annexed with the application. 23. The applicant further contends that the approved resolution plan contains the details specified in section 30(2) of the Code and is in compliance with the provisions of the Code. A copy of the performance bank guarantee of INR 100 crores (rupees hundred crores only) dated September 27, 2019 as submitted by APSEZ is annexed with the application. 24. The applicant submits that the approved resolution plan includes a statement under regulation 38(1A) of the CIRP Regulations as to how it has dealt with the interest of all stakeholders in compliance with the Code and Regulations made thereunder. 25. The consummation and completions of resolution plan is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r payments to any other creditors on and from the National Company Law Tribunal approval date and within the time prescribed under the Code. As the corporate debtor is a cash-generating entity, the CIRP cost shall be paid in full out of the cashflows of the corporate debtor in priority to any other payment (of any nature or kind) made by the corporate debtor. In the case of any shortfall in the cash flows of the corporate debtor to meet the CIRP costs, the resolution applicant shall make good the shortfall by infusing funds into the corporate debtor by way of equity, quasi equity, sub-ordinate debt and/or shareholder debt or a combination thereof over and above the upfront cash. 30. In this resolution plan, except for a voluntary payment to MMB of the net amounts outstanding as on the National Company Law Tribunal approval date, and in any case not exceeding INR 11,38,04,099 (Indian rupees eleven crores thirty eight lakhs four thousand and ninety nine only) as a full and final settlement of MMB Claims ("MMB Payments"), each operational creditor shall be paid such amounts as would have been payable to such operational creditor in accordance with the provisions of the Code (includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monitoring committee shall be constituted and shall comprise of one nominee each of the resolution professional, the resolution applicant and the approving financial creditors. 35. The newly appointed implementation and monitoring committee shall be responsible for the supervision of the day-to-day affairs of the corporate debtor till the effective date. On the National Company Law Tribunal approval date, all the existing directors of the corporate debtor, without any further action being required on the part of any person, shall, unless otherwise required by the National Company Law Tribunal or agreed to by the resolution applicant in writing, be deemed to have resigned from the board of the corporate debtor, and the board of the corporate debtor will be reconstituted to comprise of the members of the implementation and monitoring committee ("reconstituted board"). After the effective date, the resolution applicant shall constitute the board of the corporate debtor and appoint key managerial personnel, which may include persons from existing management of the corporate debtor, independent directors and representatives proposed by the resolution applicant. 36. The applicant furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal approval date. 40. The resolution plan seeks extinguishment of tax liability (Income-tax or service tax) arising, if any, in respect of amount received from IMICL Dighi Maritime Ltd., towards sub-concession agreement for development of berth whether assessed or unassessed. We are not inclined to grant this relief. The resolution applicant is eligible to claim such relief, if available, as per the provisions of the relevant law. The resolution applicant may apply to appropriate authority as per law for any such relief. 41. The resolution plan seeks all benefits and incentives, including but not limited to, under all such incentive schemes, subsidy schemes and policies that the corporate debtor is entitled under, and all such benefits shall remain vested in the corporate debtor with effect from the effective date. The aforesaid relief is allowed subject to provisions of the respective schemes and policies. 42. The applicant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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