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TMI Blog2021 (4) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... and 03.07.2017, inviting claims from the creditors of the Corporate Debtor. After receipt of claims, the IRP constituted the Committee of Creditors (CoC) of the Corporate Debtor on 21.07.2017. b. The CoC in its first meeting held on 28.07.2017, replaced the IRP with the Applicant as the Resolution Professional (RP) of the Corporate Debtor. This Bench by order dated 06.10.2017 confirmed such appointment. c. The Applicant filed MA No. 674 of 2017 for extension of the period of CIRP by 90 days. This Bench however dismissed the same vide order dated 09.01.2018. On an Appeal before the Hon'ble NCLAT the order was set aside and the period of CIRP was extended by 90 days as per order dated 05.03.2018. 3. The advertisement for Expression of Interest (EoI) issued on 28.11.2017 and 26.04.2018 by the RP evoked no response and subsequent to the advertisement in Form G issued on 26.05.2018, the Applicant received EoIs from 2 (two) Prospective Resolution Applicants (PRAs), namely (a) Khemnani Distributors and Marketing Limited and (b) P K Hospitality Services Private Limited. The last date for submission of Resolution Plan was extended till 28.05.2018 with the approval of the CoC. 4. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al vide order dated 08.02.2021. 10. The CoC in its 13th to 17th meetings considered the Resolution Plans received from Om Shri Shubh and P K Hospitality and suggested suitable changes. 11. After due verification of the eligibility of the PRAs in terms of Section 29A of the Code, the CoC in its 18th meeting held on 08.01.2021 considered the revised Resolution Plans and approved the plan of P K Hospitality with the voting share of 88.78%. 12. The Manner of voting by the CoC is as below: Sr. No. Financial Creditors Voting Share (%) For (%) Against (%) Abstained (%) 1 IDBI Bank 2.83 2.83 - - 2 SREI 6.05 6.05 - - 3 SIDBI 2.02 2.02 - - 4 IFCI FATORS 4.51 - - 4.51 5 Mr. Ketan Singhvi 0.02 - - 0.02 6 Bhuwalka Commercial Pvt Ltd 0.05 - - 0.05 7 Ramkumar Birendra Kumar Pvt Ltd 0.05 - - 0.05 8 Axis Bank 6.68 6.68 - - 9 Bank of Maharashtra 4.08 4.08 - - 10 Edelweiss ARC 41.45 41.45 - - 11 Mr. Neerav Sanghvi 0.03 - 0.03 12 Saraswat Co-op Bank Ltd 20.65 20.65 - - 13 SBI Global Factors 3.47 3.47 - - 14 ICICI Bank Limited 0.70 - - 0.70 15 SICOM Limited 5.33 - - 5.33 16 CANBANK FACTORS Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the SRA will infuse Rs. 26.06 crores as Share Capital and Rs. 5.53 Crores as Unsecured Loan. e. REDUCTION of SHARE CAPITAL It is proposed to reduce the paid-up share capital of the Company (Corporate Debtor) from Rs. 26,16,41,500/- to Rs. 10,46,570/- thereby reducing the existing paid-up share capital by approximately 99.60%. Further shares with face value of Rs. 10/- to be allocated against the reduced capital of Rs. 10,46,570/- which will result in 1,04,657 shares. f. MANAGEMENT OF THE CORPORATE DEBTOR: The SRA proposes to appoint Mr. Pravin Agarwal as Manging Director and Mr. Ram Niranjan Bhutra as Non-Executive Independent Director of the Corporate Debtor, within 90 days of approval of the Resolution Plan. g. SUPERVISION OF THE RESOLUTION PLAN: The Plan provides for constitution of a Monitoring Agency consisting of representative of the Edelweiss ARC (Financial Creditor) and the Applicant herein. This Agency would monitor the day to day operations of the Company till the consideration as per the Plan is paid in full, the original documents are handed over to the SRA and a Board of Directors is in place. h. COMPLIANCE OF MANDATORY CONTENTS OF RESOLUTION PLAN UND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view the objectives of the Code (Regulation 38(1A)). d. Declaration by the SRA that neither the Resolution Applicant nor any of his related party has either failed or contributed to the failure of the implementation of any other approved Resolution Plan (Regulation 38(1B)). e. The plan also provides for term and implementation schedule, management and control of the Corporate Debtor and adequate means for supervising its implementation (Regulation 38(2)). f. The Resolution Plan also addresses the cause of default, feasibility and viability, as required under Regulation 38(3). 16. The SRA has sought certain waivers such as waiver of statutory liabilities/contingent and/or other liabilities. As far as liabilities are concerned, the SRA is liable to the extend specified in the Plan and nothing else and the same would have to be based on clean slate principle. 17. As far as the waiver sought in the Resolution Plan in respect of Minimum Alternate Tax Liability (MAT), the SRA has to approach the jurisdictional Income Tax Authority concerned which will be decided in accordance with law. No direction in that regard can be passed. 18. The Resolution Applicant has sought certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Plan "as approved" by the requisite percent of voting share of financial creditors. Even in that enquiry, the grounds on which the Adjudicating Authority can reject the Resolution Plan is in reference to matters specified in Section 30(2) when the Resolution Plan does not conform to the stated requirements. 22. In CoC of Essar Steel (supra) the Hon'ble Apex Court clearly laid down that the Adjudicating Authority would not have power to modify the Resolution Plan which the CoC in their commercial wisdom have approved. In para 42 Hon'ble Court observed as under: "Thus, it is clear that the limited judicial review available, which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors, has to be within the four corners of section 30(2) of the Code, insofar as the Adjudicating Authority is concerned, and section 32 read with section 61(3) of the Code, insofar as the Appellate Tribunal is concerned, the parameters of such review having been clearly laid down in K. Sashidhar (supra)." 23. In view of the discussions and the law thus settled, we are satisfied that the Resolution Plan as approved by the CoC under Section 30(4) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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