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TMI Blog2021 (3) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... rence in the value. The resolution professional has not accepted the value given by Mr. Patel only. He has computed the value in accordance with the internationally accepted valuation standards, after physical verification of the fixed assets of the Corporate Debtor. The fair value and the value arrived at by both groups of the registered valuers were not significantly different. Hence, he has not appointed a fresh valuer. This Tribunal finds that the Resolution Professional had complied with the provisions of Regulation 27 and 35 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, before arriving at a decision to place the Resolution Plan before the CoC. The CoC approved the Resolution Plan with 100% voting right for approval by the Adjudicating Authority. Under Section 31(1) of the Code, 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 applicant has approached with this IA only on 15.2.2021 ie., at the eleventh hour, when the Plan is to be approved. It seems, this is only for delaying the approval of the Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for in this application - Application dismissed. - M.A. (IBC) No.01/KOB/2021 In TIBA/11/KOB/2019 - - - Dated:- 22-2-2021 - HON BLE MR. ASHOK KUMAR BORAH, MEMBER ( JUDICIAL ) For the Applicant : Shri Millu Dandapani, Advocate For the Respondent : Shri Bijoy Prabhakaran Pulipra, R.P ORDER This MA IBC)01/KOB/2021 has been filed by Mrs. P.V.Mini, the suspended Managing Director of the Corporate Debtor M/s PVS Memorial Hospital Private Limited, against the Respondent (Resolution Professional), seeking the following reliefs:- (i) To direct the Respondent to conduct the revaluation of the Corporate Debtor taking into account the current functioning of the Hospital. (ii) To send back the current resolution plan to CoC of the Resolution applicant for enhancement of plan consideration or for consideration. (iii) To allow the applicant to submit a settlement plan to the CoC and initiate withdrawal of the CIRP under Section 12A of the Insolvency and Bankruptcy Code. (iv) Issue any such other or further relief as this Hon ble Tribunal deems fit to grant in the particular facts and circumstances of this case. 2. The brief facts are thus: This Tribunal or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd medicine to treat the patients who had been admitted there, without investing any further amount for the treatment. Considering the above factors, that applicant states that the Corporate debtor has been grossly undervalued. 5. In one of the CoCs, the applicant proposed a suggestion before the R.P and the CoC that the valuation of the Corporate Debtor is undervalued and that the Board of Directors will be able to settle the complete debt and liabilities of the Corporate Debtor in a one-time settlement and the CIRP could be withdrawn as per Section 12A of the Insolvency and Bankruptcy Code, 2016. However, the R.P stated that the value of the Corporate Debtor is well above the liquidation value with admitted liabilities and claims. The Resolution Plan that has been approved by the CoC does not even amount to half of amount that was offered by the Applicant. 6. The plan consideration of ₹ 126,00,00,000/- is just above the liquidation value of the Corporate Debtor. This plan consideration does not come anywhere close to the admitted claims of the Corporate Debtor. The waterfall distribution of the plan consideration clearly shows that all the creditors are incurring huge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion plan, although procedurally does not pose any illegality does not conform to the objective of the Code. 9. The applicant contended that the R.P and the Resolution Applicant are colluding so that the Corporate Debtor can be taken over by the Resolution Applicant for the lowest consideration possible. For the approval of the Resolution Plan by the adjudicating authority, satisfaction of the Adjudicating Authority has to be recorded. In Wig Associates (P) Ltd In re 145 CLA 255 (NCLT-Mum), it was held that satisfaction is required to be based upon a conscious decision on examination of the terms of the Resolution Plan. The satisfaction mandated under the Act is subjective or objective or both. The satisfaction of the adjudicating authority has to be recorded after thoroughly studying the advantage and disadvantage of the resolution plan submitted and if it can be termed as just and equitably fit. An objective satisfaction revolves around the object of enactment of the Court as enshrined in the Preamble of the Court that is, to revive the financially stressed corporate body. 10. In order to buttress his arguments, the learned counsel for the applicant has relied on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs had appointed the Registered Valuers to arrive at the Fair value and Liquidation Value of the Corporate Debtor in accordance with Regulation 35 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. The valuation was done by two independent Registered Valuers registered with the IBBI under the Companies (Registered Valuers and Valuation) Rules, 2017 and the fair value and the liquidation value of the Corporate Debtor was computed in accordance with internationally accepted valuation standards, after physical verification of the inventory and fixed assets of the Corporate Debtor. The fair value and the liquidation value of the Corporate Debtor arrived at by the both groups of Registered Valuers were not significantly different and therefore there was no requirement to appoint another Registered Valuer by the Resolution Professional to submit an estimate of the value computed in the same manner. The value arrived at by the Registered Valuers are only estimates' ' and the same cannot be construed as the accurate value of the Corporate Debtor. The valuations arrived at by the unqualified valuers appointed by the Board of Directors, prior to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Statement of the prospective resolution applicants duly certified by a Chartered Accountant, in original to be submitted. The schedules forming part of the Tangible Net worth Statement is required to be attached as it is an integral part of the statement. c. Kindly submit the latest CIBIL Report of the prospective resolution applicants and connected persons, as defined under Explanation [1] 1o Section 29A of the Insolvency and Bankruptcy Code, 2016, to affirm that they are not wilful defaulters in accordance with the guidelines of the Reserve Bank of India issued under Banking Regulation Act, 1949. d. Demand Draft of ₹ 5,00,00,000 (Rupees Five Crore Only) to be deposited as refundable deposit with the Bank account No: 0525073000000455 opened in the name of PVS Memorial Hospital Private Limited with South Indian Bank, Kaloor Branch to consider and participate in the Expression of Interest to submit the resolution plan. 14. However, instead of rectifying the defects in the EOI and submitting the documents called for by the Respondent, the Promoters of the Corporate Debtor had requested for relaxation of the eligibility norms fixed by the Committee of Credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hundred and Twenty Five Crores Only) and thereafter finalized it on ₹ 1,26.00.00,000/- (Rupees One Hundred and Twenty Six Crores Only) through several rounds of deliberations and negotiations with the Resolution Applicant. Based on the said negotiations, the Resolution Plan was finally submitted on 22nd December, 2020 according to the revised plan amount. All the deliberations made at the meetings of the Committee of Creditors through video conferencing were properly recorded and preserved. 16. The Respondent had received a letter from one M/s Baby Memorial Hospital Limited, requesting to consider them as one of the interested parties to takeover and run the Corporate Debtor and the Respondent had duly placed the said letter before the Committee of Creditors in its meeting held on 02nd December, 2020 for their consideration and decisions. The Committee of Creditors opined that since there is a Resolution Plan under active consideration of the Committee of Creditors, the possibility of Considering their request for condoning the delay in submission of an EOI may be reviewed if the plan which is under consideration is found as defective or rejected in view of that permittin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfied that the requirement of Sub-Section (2) of Section 30 of the Code has been complied with. There is absolutely no merit in the submissions made by the Applicant and can only be categorized as mere baseless allegation. The Applicant is having efficacious remedy available under Section 61(3) of the Code to file an Appeal against an order approving Resolution Plan under Section 31 and that the sole intention behind this last minute litigation is to create hindrance on the way of this Tribunal and thereby prevent this Tribunal from passing the orders on IA/13/KOB/2020 which is posted for orders on 22-02-2020. Hence the Respondent prayed for dismissal of this MA. For the reasons stated above, it is humbly submitted that the Application shall not be maintainable and this Tribunal may be pleased to dismiss the Miscellaneous Application with costs and thus render justice. 20. This Tribunal heard the arguments advanced by the learned counsel for the applicant and the Resolution Professional who appeared in person through video conferencing. The only question to be decided in this matter is as to whether a direction for revaluation to be ordered by sending back the Resolution Plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Adjudicating Authority, and only thereafter the applicant approached this Tribunal with this MA. 23. This Tribunal finds that the Resolution Professional had complied with the provisions of Regulation 27 and 35 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, before arriving at a decision to place the Resolution Plan before the CoC. The CoC approved the Resolution Plan with 100% voting right for approval by the Adjudicating Authority. Under Section 31(1) of the Code, 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. On a verification 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. In this respect, it is pertinent to note that when the Resolution professional has filed the Resolution Plan before this Tribunal, on a Caveat Petition, this applicant was also heard on 18.01.2021 and he has been given time to make his objection, if any, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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