9911796707
TMI Blog2021 (3) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... and caution. To appoint another valuer for land and building for complying with Regulation 35(a), 35(b) and 35(c) of CIRP Regulations. (iii) To pass order directing the RP and CoC to reconvene the meeting to comply with the provisions of IBC 2016 and CIRP regulations upholding the fundamental rights enshrined under the Constitution of India and arrive at a value of Resolution Plan which balances the interest of all stakeholders. 2. The applicant states that he is the POA holder of 46 doctors who were also working with the said Hospital. This tribunal vide order dated 16.11.2019 in TIBA No.11/KOB/2019 has initiated Corporate Insolvency Resolution Process (CIRP for short) against M/s PVS Memorial Hospital Private Limited. The Committee of Creditors (Hereinafter referred to as CoC) in their 27th Meeting held on 26th December, 2020 had approved the Resolution Plan of the Resolution Applicant M/s Lissie Medical Institution (Herein after referred as RA). 3. It is stated in the I.A that even though the Corporate Debtor (CD for short) was not functioning for more than two years, as per the orders of Government of Kerala under the Disaster Management Act, 2005, the hospital was used as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at Rs. 48.56 lakhs by Shri Patel, whereas the report given by Shri Tom Panikulam, value per cent is Rs. 42 lakhs, 22.50 lakhs, 15 lakhs, 11.25 lakhs for the different survey numbers. Even if the maximum value Viz, 42 lakhs given in the report of Shri Tom is adopted for comparison, the variance is about 15.62%. The Rupee value of the difference of Rs. 6.5 lakhs per cent for 114 cents would amount to Rs. 7.14 crores. The valuation was done during the period (between 30 January 2020 to 25 February 2020), when hospital facility was literally in a stand still as there were no operations in the CD. However, the Resolution Plan was submitted by the RA on 1.10.2020, while the Government of Kerala spent huge amount to put the hospital back in action. Therefore, if a fresh valuation is taken on the current circumstances, the entire valuation would prove to be totally different. 6. It is further stated that while the average Fair value of the Land and Building is Rs. 161.95 Crores and the average Liquidation Value of Land and Building is Rs. 121.32 Crores, the value as per Resolution Plan is only Rs. 126 crores, which is just above the Liquidation Value. This is clearly kept with the ulte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn in Sub-Section (1) of Section 53, including the priority and value of the security interest of a secured creditor in line with the Code. However, the Resolution Plan reserves an amount of Rs. 1,00,00,000/- (Rupees One Crore Only) for distribution to the operational creditors and unsecured financial creditors of the Corporate Debtor) 11. The averments regarding the balancing of interest due to non allocation of plan amount on percentage is denied. With regard to the contention of violation of Article 14 of the Constitution of India, the Respondent submitted that Hon'ble Supreme Court in WRIT PETITION (CIVIL) NO. 99 OF 2018 in the matter of Swiss Ribbons Private Limited had held that classification between various class of creditors is neither discriminatory, nor arbitrary, nor violative of Article 14 of the Constitution of India. 12. The Applicant is a not a full time employee of the CD and his name is not entered in the muster rolls of the corporate debtor as "Employee". The applicant was acting as consultant of the Corporate Debtor and the Corporate Debtor done the Tax Deduction at Source while paying the wages. There is no employment contract between the Applicant and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Committee of Creditors ("CoC") to take decision on a Resolution Plan properly and there is no statutory mandate under the Code that the bid of the Resolution Applicant should match the liquidation value arrived at in accordance with Regulation 35 of the CIRP Regulations. The relevant para of which are quoted below: 26. No provision in the Code or Regulations has been brought to our notice under which the bid of any Resolution Applicant has to match liquidation value arrived at in the manner provided in Clause 35 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. This point has been dealt with in the case of Essar Steel (supra). We have quoted above the relevant passages from this judgment. 27. It appears to us that the object behind prescribing such valuation process is to assist the CoC to take decision on a resolution plan properly. Once, a resolution plan is approved by the CoC, the statutory mandate on the Adjudicating Authority under Section 31(1) of the Code is to ascertain that a resolution plan meets the requirement of sub-sections (2) and (4) of Section 30 thereof. We, per se, do not find any brea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent had duly complied with the provisions of Regulation 27 and 35 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 16. It is the duty and responsibility of the Resolution Professional to strictly adhere to the timelines specified under the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a Resolution Plan, the Adjudicating Authority has to be satisfied that the requirement of Sub-Section (2) of Section 30 of the Code has been complied with. 17. This Tribunal heard the arguments advanced by the learned counsel for the applicant and the Resolution Professional who appeared in person, through video conferencing. 18. The only question to be decided is as to whether the applicant is eligible to get the reliefs to reject the Resolution Plan submitted by the Resolution Applicant M/s Lissie Medical Institutions and also to reject the valuation report filed by Mr.R.K. Patel and to appoint another valuer convening another CoC.? 19. The bare reading of the history of the case mentioned above makes it crystal clear that the Resolution Professional took all steps as per the provisions of IBBI Regulations, befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the Resolution Plan submitted by M/s Lissie Medical Institutions it is seen that requirement of Sub- Section (2) of Section 30 has been followed before submitting the Resolution Plan for the approval of the Adjudicating Authority. Section 31(1) of the Code lays down in clear terms that for final approval of a Resolution Plan, the Adjudicating Authority has to be satisfied that the requirement of Sub-Section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. In the case of Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta, decided on 15th November, 2019 in Civil Appeal Nos. 8766-8767 of 2019 (2019 SCC Online SC 1478).) it was held that the scope of interference by the Adjudicating Authority is limited judicial review. The relevant portion of para 46 of the said judgment is quoted below: 46.............This being the case, judicial review of the Adjudicating Authority that the resolution plan as approved by the Committee of Creditors has met the requirements referred to in Section 30(2) would include judicial review that is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
