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TMI Blog2021 (2) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 14.01.2019 and Mr. Anil Seetaram Vaidya, the Applicant herein, was appointed as the Interim Resolution Professional (IRP) of the Corporate Debtor. The Committee of Creditors (CoC) has not made any application either to replace or to confirm the Applicant as Resolution Professional. Therefore, the Applicant in terms of Regulation 17(3) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (the Regulations) continues to perform the functions of the Resolution Professional (RP). ii. The Applicant published a public announcement on 17.01.2019 inviting claims from the creditors of the Corporate Debtor and after verification of the claims received, constituted the Committee of Creditors (CoC) comprising of four Financial Creditors viz. State Bank of India, Canara Bank, Solapur Janta Sahakari Bank and Axis Bank. iii. The Applicant in compliance of the provisions of the Code and Rules framed there under conducted the CIRP of the Corporate Debtor. 3. The Applicant published Form-G on 30.03.2019 inviting Expression of Interest (EOI) from Prospective Resolution Applicants (PRAs) for submission of Resolution P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 18.08.2020 allowed IA No. 1072 of 2020 for reducing the amount of Bank Guarantee from RFRP and ordered that the "CoC may consider the Resolution Plan by accepting the bank performance guarantee of Rs. 3.00 Crores as agreed to be provided by the Resolution Applicant." 9. The RA then submitted a fresh Resolution Plan in pursuance of the revised RFRP and the same was discussed by the CoC in its 15th meeting held on 02.09.2020 wherein the CoC suggested some changes in the Resolution Plan. The CoC also deliberated on the distribution of settlement amount offered to the secured and unsecured financial creditors in the Resolution Plan. In 16th CoC meeting held on 05.09.2020 the CoC discussed and deliberated on the Resolution Plan and found it to be feasible and viable subject to the condition that the RA gets a commitment letter from its lenders for sanction of the loan required for funding the Resolution Plan. 10. The RA finally submitted a revised Resolution Plan dated 7th November 2020. The said revised plan was discussed and accepted by the CoC and was put for voting in the 17th CoC meeting held on the same day wherein the said plan was unanimously approved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Amount to be Brought by way of share capital* Amount of loan contribution** % of Holding Babu Dadasaheb Botre 2,07,20,000/- 1,03,60,000/- 51.80 Rekha Babu Botre 71,80,000/- 35,90,000/- 17.95 Jitendra Bhaskarrav Malvadkar 19,99,990/- 9,99,990/- 4.99 Sagar Laxman Badhe 80,00,000/- 40,00,000/- 20.00 Prashant Dadasaheb Botre 21,00,000/- 10,50,000/- 5.25 Babu Dadasaheb Botre and Jitendra Bhaskarrav Malvadkar on behalf of Reise Enterprises 10/- 10/- 0.01 Total 4,00,00,000/- 2,00,00,000/- 100.00 *Amount of Equity Share Capital contribution of Rs. 4,00,00,000/- (Rupees Four Crore Only) to be brought by the members of the consortium of Resolution Applicant within 30 days from the date of receipt of the plan approval order from the Adjudicating Authority. **Further amount of loan contribution of Rs. 2,00,00,000/- (Rupees Two Crore Only) to be brought by the members of the consortium of Resolution Applicant within 75 days from the date of receipt of the plan approval order from the Adjudicating Authority. D. GOING CONCERN: The Resolution Applicant shall acquire the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Resolution Process cost (CIRP Cost) which has been estimated up to Rs. 42,00,000/- which includes payment to IRP and/or RP and all amount of expenses incurred by IRP and/or RP, to the extent duly ratified or approved by the CoC and shall be paid by Resolution Applicant in priority over all other claims of creditors/stakeholders under the Resolution Plan and within 30 days from the date of receipt of the order upon approval of Resolution Plan by Adjudicating Authority. In case the amount of CIRP Cost goes beyond estimated cost of Rs. 42 lacs, then Resolution Applicant shall bear the said cost. It is submitted by the Applicant that the CoC has passed a resolution at its 17th meeting approving the CIRP Cost from the date of commencement of the CIRP till 23rd October, 2020 amounting to Rs. 49,77,892/- and has also approved the CIRP Cost being incurred/to be incurred by the Applicant after 23rd October, 2020 till the date of approval of Resolution Plan/order for liquidation of the Corporate Debtor by the Adjudicating Authority. Note 2: Total outstanding of the secured and unsecured financial creditors shall be settled under the Resolution Plan at a total consideration of Rs. 22,48 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Resolution Plan by the Adjudicating Authority without any further interest i.e., interest free manner. The Plan provides that upon approval of the Resolution Plan by the Adjudicating Authority all the dues of the Statutory Authorities shall stand deemed to be paid as per the Plan in full and final settlement of the dues. Note 5: As per information received by the Resolution Applicant pursuant to the Information Memorandum, the Corporate Debtor is not functioning for the last 3 to 4 years and hence there are no employees working with the Company. The Resolution Plan provides that any claim, dues, etc. towards payment for employees and workmen, be it casual, temporary or permanent including contingent claim or dues, etc. shall be extinguished upon approval of Resolution Plan by the Adjudicating Authority. G. MANAGEMENT & CONTROL OF BUSINESS OF THE CORPORATE DEBTOR: The management and control of the Corporate Debtor shall be handed over to the Board of Directors of the Resolution Applicant for proper running and operations of the plan, subject to approval of the CoC and Adjudicating Authority. Following shall be the Key Managerial Personnel (KMP) of the Corporate Debtor u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce security amount of Rs. 3,00,00,000/- (Rupees Three Crores Only) with the State Bank of India as per the requirement under revised RFRP. Bank's confirmation letter dated 13.11.2020 is annexed with the Application. 12. The Applicant submits that the Resolution Plan meets the requirements of Section 30(2) of the Code in the following manner: a. Plan provides for the priority payment of CIRP costs in full from the fund to be infused by the Resolution Applicant. b. To pay the Operational Creditors of the Corporate Debtor in the manner indicated supra. It is submitted that the Liquidation Value of the Corporate Debtor is Rs. 24,85,26,000/- and Fair Market Value is Rs. 39,26,34,000/-. In view of the fact that the claim of Secured Financial Creditor is Rs. 37,17,00,000/- Crores, the minimum Liquidation Value to the Operational Creditors would be NIL. However, a sum of Rs. 8,10,000/- is provided to all the Operational Creditors. 13. The Resolution Applicant proposes to appoint suitably qualified and experienced persons, key personnel and other officers for successful operations of the Corporate Debtor in terms of Section 30(2)(c). The Plan als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution Applicant does on a fresh slate, as has been pointed out by us hereinabove." 17. In view of the above ruling of the Apex Court, the Resolution Applicant takes over the Corporate Debtor with all its assets and liabilities as specified in the Resolution Plan subject to orders passed herein. As already indicated the Resolution Plan has been approved by the CoC in its meeting held on 07.11.2020 with 100% votes. 18. In K. Sashidhar v. Indian Overseas Bank & Others: 2019 SCC Online SC 257 (= (2019) 12 SCC 150) the Hon'ble Apex Court held that if the CoC had approved the Resolution Plan by requisite percent of voting share, then as per section 30(6) of the Code, it is imperative for the Resolution Professional to submit the same to the Adjudicating Authority (NCLT). On receipt of such a proposal, the Adjudicating Authority is required to satisfy itself that the Resolution Plan as approved by CoC meets the requirements specified in Section 30(2) of the Code. The Hon'ble Court observed that the role of the NCLT is 'no more and no less'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y waiver sought in the Resolution Plan, shall be subject to approval by the Authorities concerned. iii. The Memorandum of Association (MoA) and Articles of Association (AoA) shall accordingly be amended and filed with the Registrar of Companies (RoC), concerned for information and record. The Resolution Applicant, for effective implementation of the Plan, shall obtain all necessary approvals, under any law for the time being in force, within such period as may be prescribed. iv. Henceforth, no creditors of the erstwhile Corporate Debtor can claim anything other than the liabilities referred to in Paras supra. v. The moratorium under Section 14 of the Code shall cease to have effect from this date. vi. The Applicant shall supervise the implementation of the Resolution Plan and shall file Status Report of its implementation before this Authority from time to time, preferably every quarter. vii. The Applicant shall forward all records relating to the conduct of the CIRP and the Resolution Plan to the IBBI along with copy of this Order for information. viii. The Applicant shall forthwith send a copy of this Order to the CoC and the Resolution Applicant for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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