9911796707
TMI Blog2020 (6) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. The resolution plan is approved - Resolution Plan is binding on the Corporate Debtor and other stakeholders involved so that revival of the Debtor Company shall come into force with immediate effect and the Moratorium imposed under section 14 shall cease to have any effect forthwith - application allowed. - MA No.2972/2019, 3137/2019 in CP (IB) No.82/MB.II/2018 - - - Dated:- 23-6-2020 - Mr. Rajasekhar V.K. : Member (Judicial) And Mr. Chandra Bhan Singh : Member (Technical) For the Applicant: Mr. Shyam Kapadia i/b Ms. Khushboo Shah Rajani, Advocates a/w Mr. Ayush J, Rajani, Practising Chartered Accountant, i/b AKR Advisors LLP for the Resolution Professional (RP), Mr Manish Baldeva, RP in person And Mr Tapan Agarwal, Advocate. ORDER Per: Rajasekhar V.K., Member (Judicial) MA 2972/2019 in CP (IB) 82/2018: 1. This is an Application moved on 30 August 2019 by Shri Manish Baldeva, Resolution Professional of Print House (India) Private Limited, by invoking the provisions of section 30(6) of the Insolvency and Bankruptcy Code, 2016 read with regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NMMC Cess Officer 12,24,232 5,13,254 2 Commissioner of Customs 7,06,48,768 - 3 Deputy Municipal Commissioner (Revenue) 8,30,44,835 - 4 EPF 29,13,346 29,13,346 Total 15,78,31,181 34,26,600 The Applicant submits that no claims have been received from any of the employees and workers of the Corporate Debtor, since the same was being fully paid during the CIRP Period. 5. The Applicant states that a total of 18 CoC meetings have been held during CIRP period, as follows: Particulars Date of CoC Meeting 1st COC Meeting 15th November 2018 2nd COC Meeting 28th December 2018 3rd COC Meeting 14th January 2019 4th COC Meeting 22nd February 2019 5th COC Mee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (Marathi) for receipt of EoI by 15 April 2019 and receipt of Resolution Plan by 31 May 2019. 11. The Applicant submits that two EoIs were received in the second round, one from Mr. Shubham Jadhav and other from Ms. Sucheta Sunil Khandekar. However, both were rejected by the CoC due to non-eligibility on account of failure to meet the net worth criterion. 12. The Applicant submits that since the CIRP period was to expire on 15 April 2019, in the 5th CoC meeting held on 03 April 2019, a resolution for extension of CIRP period by 90 days was approved and accordingly an application bearing No.1304/2019 was filed under the provisions of section 12(2) of the Code which was allowed by this Bench vide an Order dated 15 April 2019, thereby extending the Corporate Insolvency and Resolution Process till 14 July 2019. 13. A third EoI dated 23 May 2019 was published in Nav Bharat Times (Hindi), Economic Times (English) and Maharashtra Times (Marathi) for receipt of EoI by 31 May 2019 and receipt of Resolution Plan by 25 June 2019. 14. The Applicant submits that three prospective Resolution Applicants showed interest, which was recorded in the 9th CoC meeting held on 04 June 2019: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld, wherein it was decided to open the sealed envelopes containing the Resolution Plans received from two prospective Resolution Applicants while the Applicant was to scrutinise the resolutions plans in accordance with the provisions of section 30 of the Code and regulations 37, 38 and 39 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, and present such resolution plans which conformed to the conditions stipulated in section 30(2) of the Code, before the CoC for its approval in the next Committee meeting. 22. The Applicant submits that thereafter, during the 15th CoC meeting held on 16 August 2019, the RP tabled his compliance report to the CoC members after examining both the Resolution Plans. The CoC decided first to call upon Mr. Ajay Jalan, representative of Next Orbit Ventures Fund to discuss his plan. After detailed deliberations with the CoC members, the RP suggested to the said Resolution Applicant to carry out necessary modifications to its plan to make it compliant with the Code and Regulations and also revise the proposal by 19 August 2019. 23. The Applicant submits that subsequently, Mr. Vija ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21.25 93.85 28. After discussion, both the plans were put to vote, and the Plan submitted by Sify Technologies Limited stood approved by the CoC. The Applicant submits the details of physical voting by CoC members during the 18th CoC meeting held on 26 August 2019 as follows: Item No. Particulars Vote by Pegasus Asset Reconstruction Pvt. Ltd. (voting share 70.05%) Vote by Sumitomo Mitsui Finance Leasing Co. Ltd. (voting share 29.95%) Result 1 Revised final Resolution Plan submitted by Next Orbit Ventures Fund Voted against the plan Abstained from voting Rejected 2 Revised final Resolution Plan submitted by Sify Technologies Ltd Voted for the plan Abstained from voting Approved 29. The Applicant submits that the Resolution Plan dated 22 August 2019 of Sify Technologies Limited was approved with requisite majority in accordance with section 30 (4) of the Code. 30. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions is detailed hereunder. II. Measures required for implementation of the Resolution Plan in terms of Regulation 37 of CIRP Regulations: Particulars Relevant Page of the Revised Resolution Plan dealing aforesaid compliance with Regulation A resolution plan shall provide for the measures, as may be necessary, for insolvency resolution of the corporate debtor for maximisation of value of its assets, including but not limited to the following:- (a) transfer of all or part of the assets of the corporate debtor to one or more persons; Not Proposed by RA (b) sale of all or part of the assets whether subject to any security interest or not; Not Proposed by RA (c) the substantial acquisition of shares of the corporate debtor, or the merger or consolidation of the corporate debtor with one or more persons; Not Proposed by RA (d) cancellation or delisting of any shares of the corporate debtor, if applicable; Not Proposed by RA (e) s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an approved by the Adjudicating Authority at any time in the past. Chapter VI, Page No.50 of the Resolution Plan 38(2) A resolution plan shall provide: (a) the term of the plan and its implementation schedule; Page No.39 of the Resolution Plan. (b) the management and control of the business of the corporate debtor during its term; and Page Nos.33 and 34 of the Resolution Plan. (c) adequate means for supervising its implementation. Page Nos.35 to 38 of the Resolution Plan. The Resolution Plan also provides for appointment of Monitoring Agent. 38(3) A resolution plan shall demonstrate that (a) it addresses the cause of default; (b) it is feasible and viable; (c) it has provisions for its effective implementation; (d) it has provisions for approvals required and the timeline for the same; and (e) the Resolution Applicant has the capability to implement the resolution plan. Chapter III at Page No.14 of the Resolution Pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crore Pegasus ARC to be paid ₹ 40 crore in full and final settlement. The payment to be made as per following milestones: Upfront payment ₹ 36 crore Balance payment of ₹ 4 crore quarterly payment of ₹ 2 crore each Sumitomo: ₹ 19.96 crore Sumitomo: ₹ 2.5 crore Sumitomo to be paid ₹ 2.5 Cr in full and final settlement Payment to Workmen/ Employee 0.00 0.00 No claims have been filed by employees and workers as per Information Memorandum. Operational Creditors 0.00 0.00 No claim from operational creditor has been admitted Payment to Statutory Dues 6.90 6.90 100% of admitted Statutory Claim will be paid upfront 100% of EPF Claim will be paid upfront Full and final settlement of admitted statutory claims. Payment to tenants under sublease 1.93 1.93 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RESOLUTION PLAN PROPOSED IN RESPECT OF Print House (India) Private Limited Submitted By: Sify Technologies Limited (Resolution Applicant) ANNEXURE A Table of Contents CHAPTER I DEFINITIONS AND INTERPRETATIONS.......................... 25 CHAPTER II ABOUT THE RESOLUTION APPLICANT.......................... 32 CHAPTER III UNDERSTANDING OF THE COMPANY .......................... 39 CHAPTER IV FINANCIAL PROPOSAL .................................................... 60 CHAPTER V MANAGEMENT OF COMPANY AFTER RESOLUTION ... 67 CHAPTER VI TERM AND IMPLEMENTATION OF THE RESOLUTION PLAN ............................................................................................................. 70 CHAPTER VII MANDATORY CONTENTS OF THE RESOLUTION PLAN ............................................................................................................. 76 CHAPTER VIII RELIEFS AND CONCESSIONS, DIRECTIONS AND KEY ASSUMPTIONS ............................................................................................. 91 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such other law as may be applicable to the Company and the Resolution Applicant. Approved Resolution Plan means the Resolution Plan submitted by the Successful Resolution Applicant approved by the Adjudicating Authority and CoC. Associate Company means in relation to another company, means a company in which the Resolution Applicant has a significant influence in terms of the Companies Act of 2013, and includes an Affiliate of the Resolution Applicant having such influence and includes a joint venture company. Banks / FIs / Lenders means the following Financial Creditors of the Company: a. Pegasus Asset Reconstruction Private Limited; and b. Sumitomo Mitsui Leasing and Finance Company Limited. Board / Board of Directors means Board of directors of the Company as constituted by the Resolution Applicant in accordance with this Resolution Plan. CIRP means the corporate insolvency resolution process of the Company conducted in accordance with the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee of Creditors designated by the Committee of Creditors to perform such functions on behalf of the Committee of Creditors as stated in the RFRP or as may be prescribed by the Committee of Creditors during the Resolution Plan Process Debt shall mean, debt as defined under the IBC, due from or owed by the Corporate Debtor. Definitive Agreement shall mean the binding agreement(s), to be entered by the Successful Resolution Applicant(s) for the purposes of implementing the Approved Resolution Plan. Effective Date means the date of the Adjudicating Authority Approval Order plus 30 Business Days thereafter, being the date on which all documentation and requirements as per the Resolution Plan is completed and the Resolution Applicant is able to take complete control of the Company, its assets and its business or such other date as may be mutually decided between Resolution Applicant and the Resolution Professional. Equity mean any amount invested in the Corporate Debtor towards subscription to issued and pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the said Company, directly or indirectly, holds 26% (twenty six percent) or more of the share capital; (iii) a Company in which the said Company, directly or indirectly, has the power to direct or cause to be directed the management and policies of such Company whether through the ownership of securities or agreement or any other arrangement or otherwise; (iv) a Company which, directly or indirectly, has the power to direct or cause to be directed the management and policies of the said Company whether through the ownership of securities or agreement or any other arrangement or otherwise; or (v) a Company which is under common Control with the said Company. IBBI means the Insolvency and Bankruptcy Board of India Implementation Period means the period commencing from the date of the Adjudicating Authority Approval Order till the Effective Date. Information Memorandum means the information memorandum of the Company, prepared by the Resolution Professional under the provisions of Code and CIRP Regulations, as provided to the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RFRP means this document including all the appendices hereto, for the purposes of setting out the process for submission of Resolution Plan and selection of Successful Resolution Applicant(s) and shall include all supplements, modifications, amendments, alterations or clarifications thereto issued in accordance with the terms of the RFRP. Resolution Applicant means Sify Technologies Limited Resolution Plan means this resolution plan, as proposed by the Resolution Applicant by way of submission of its bid to the Resolution Professional Resolution Professional means Resolution professional of the Company appointed by the Adjudicating Authority Required Approvals means the approvals, consents, no-objections, sanctions required to be obtained by the Resolution Applicant under Applicable Laws. RBI means the Reserve Bank of India. Related Party with reference to a company shall have the meaning ascribed to it u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this entire Resolution Plan or specified sections of this Resolution Plan as the case may be; g. reference to any of the words include , including , for example , such as , is not used as, nor it is to be interpreted as, a word of limitation and when introducing an example or examples of a similar kind; h. any reference to a statute, ordinance, code or other law includes regulations and other instruments under it and amendments or re-enactments of any of them; i. if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated inclusive of that day; j. a reference to month shall mean an English calendar month and reference to year shall mean an English calendar year, except as expressly provided otherwise in this Resolution Plan; k. the values given herein are approx. values and the same shall be rounded off to the nearest rupee; l. if a word or phrase is defined, parts of speech and other grammatical forms of that word or phrase shall have a corresponding meaning; m. any reference to time is a reference to Indian Standard Time; and n. reference to anything including any amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbai. Currently, Sify is one of the largest datacenter providers in the country with 6 concurrently maintainable data centers. Currently Sify has more than 5,00,000 square feet of operational data center space and about 2,50,000 square foot of data center under construction in Navi Mumbai hosting several leading multi-national and Indian institutions contributing to the Maharashtra exchequer. B. Financial Strength As on 31 March 2019 Equity (including reserves and surplus): INR 1,077 Cr Total Assets : INR 2,982 Cr Fixed Assets : INR 863 Cr Investment : INR 65 Cr C. External Credit Rating CARE report has been included in Annexure D. Availability of additional collateral security and personal/corporate guarantee Sify has total net worth of INR 1077Cr and unutilised fund and non-fund based limits available with consortium of bankers is INR 223 Cr as on June 30,2019 E. Ability to turnaround distressed companies Sify has expanded the data center ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d its core data centers business. The real estate currently leased by the company can be gainfully put to use as an operating asset by Sify. Sify has been in operating businesses ranging from telecom to application services for more than 20 years. As a reputed strategic investor, Sify would operate the entity with the intention to continuing the business and not focus purely on return on investment and exit. Further, Sify will be investing additional capital to convert the existing infrastructure into data center pods. The expected initial capital investment is around INR 90 Cr. The assessment of investment to be made, capacity to be created and the capacity that could be sold can be done only after detailed assessment of the structural design and stability of the building. Additionally, vacant lands situated in the corporate debtor s property at Navi Mumbai shall be converted to data centers over the period based on customer demands. The investments are expected to be around INR 300 Cr for this future expansion. Sify is committed to putting assets of the corporate debtor to gainful use based on a long term commitment to the business. A plain read of the objective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stic demand during high inflationary period and change in business model of Sify pursuant to changing market conditions driven by change in customer preferences. Sify has grown at CAGR of 14 % over the last 5 years. The cash reserve of the company has up by 50 % over the last 5 years. Sify s strategy is headed by Mr. David Nishball who is the chief strategy officer. He has been with Sify for over 10 years. He has vast global industry experience in network and data center businesses across geographies. He has led the transformation of Sify s business model over the periods. He has been key in strategising data center business growth in Sify. Sify s data center capacity has grown at 35 % over last 3 years. 4. PROFILES OF TURNAROUND EXPERT The turnaround of business will be led by a team of experts comprising multidisciplinary professionals Mr M P Vijay Kumar Chief Financial Officer Mr C R Rao Chief Operations Officer Mr. Rajesh Tirumalaraju Head Regulatory affairs Mr. Roopesh Kumar Chief Arch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Secretary Mr. Ananda Raju Vegesna Executive Director Mrs. Bala Saraswathi Raju Vegesna Director 8. DETAILS OF THE RESOLUTION APPLICANT AND CONNECTED PERSONS a. No conviction for any offence, if any, during the preceding five years: The Resolution Applicant or the Connected Persons have NOT been convicted of any offence during preceding five years. b. No criminal proceedings pending: There are no criminal proceedings pending against the Resolution Applicant or the Connected Persons. c. No disqualification, if any, under Companies Act, 2013, to act as a director: The Resolution Applicant is not a natural person, and it cannot be appointed as a director under the Companies Act. Accordingly, the provisions regarding disqualification do not apply to the Resolution Applicant. d. Not identified as a wilful defaulter, if any, by any bank or financial institution or consortium thereof in accordance with the guidelines of the RBI: The Resolution Applicant or the Connected Persons have NOT been recognised as a wilful defaulter by any ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to their clients from the idea stage to final production and logistics across the globe with value adds at every stage for customer, catering to some of India s top corporate. The Company has following area of expertise in the production of: a. Sales collaterals and point of sales material; b. Innovative Products designing and fabrication; c. Financial communication; d. The investor communication division; e. Publications; f. Variable Printing; and g. Packaging carton printing and innovative packaging solutions. The Company has incurred heavy losses because of various unforeseen reasons such as: a. Heavy interest cost; b. Bad and doubtful debts; c. Labour problems; d. Decline in market with adoption of e-media by many corporate and individuals; and e. Delay in recovery from debtors. In addition to the core printing business, the company also derives a significant proportion of revenue and profits from sub-leasing its premises to third parties. As per the IM, a part of the property of the corporate debtor has been sub-leased to three different tenants. About financial performance a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,000,540 Reserves and surplus (409,657,821) (303,960,276) (343,657,281) (237,959,736) Non-current liabilities Long-term borrowings 6,845,750 9,935,003 Other Long-term liabilities 19,362,052 19,362,052 Long-term provision 4,461,275 4,816,275 30,669,077 31,569,924 Current Liabilities Short-term borrowings 505,119,950 387,949,928 Trade payables 67,876,712 57,350,712 Other current liabilities 271,115,769 330,054,742 Short-term provisions 1,103,641 1,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar P Hendre 13.12 8,66,250 86,62,500 Nandkumar Hendre (HUF) 12.87 8,49,680 84,96,800 Kunal H Hendre 10.42 6,87,500 68,75,000 Upasana N Hendre 10.42 6,87,500 68,75,000 Prathamesh P Hendre 10.42 6,87,500 68,75,000 Runali P Hendre 10.42 6,87,500 68,75,000 Pramod P Hendre (HUF) 10.04 6,62,820 66,28,200 Parinita Hendre 4.16 2,75,000 27,50,000 Tanishq Hendre 4.15 2,75,000 27,50,000 Jer Nariman Khursedji 0.01 27 270 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter No. DE/MHP(C)/R-847/2/1724 dated October 20, 2006. The details of units constructed are as given below: Built up area in sqm Ground flr. m2 Mazz. fl. m2 1st fl. m2 2nd fl. m2 3rd fl. m2 4th fl. m2 Total 1st BCC No. DE/MHP(C)/R- 847/2/1714 dated 19.10.2006 3626.52 448.50 - - - - 4075.02 2nd Approval No. DE/MHP(C)/R- 847/2/1724 dated 20.10.2006 1804.58 - 1804.58 1804.58 1420.62 20.88 10390.26 Total 5431.10 448.50 1804.58 1804.58 1420.62 20.88 10930.26 Grand Total 10930.26 g. Subsequent to the above, following property are given on rent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17, 2018 (excluding gratuity) Gratuity dues of workers, in case of discharge Leave encashment dues of the employees in case of discharge 70 11,19,573 3,45,47,543 - 5.2.2. WORKER OUTSTANDING Sr. No. Name of the Employees Total outstanding as on October 17, 2018 (excluding gratuity) Gratuity dues of workers, in case of discharge Leave encashment dues of the employees in case of discharge 1 VyankateshGadgil 10,931 7,06,320 - 2 Laxman Tukaram Raut 6,376 5,61,168 - 3 Shekhar Desai 12,113 7,21,164 - 4 Jagdish Desai 10,247 6,56,208 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BY FINANCIAL CREDITORS AND OPERATIONAL CREDITORS As per the Information Memorandum, we understand that total claims of ₹ 15,24,12,504 and ₹ 6,84,65,807 of the Financial Creditors and Operational Creditors respectively, have not been filed before the Resolution Professional. 5.4. DETAILS OF AMOUNT DUE TO AND FROM RELATED PARTIES As per the Information Memorandum, the following is the list of the amounts due to and from the Relation Parties filled which are admitted / still being verified / not claimed: Sr. No. Name of the Related Party Description of relationship Type Amount as on 17.10.2018 (as per PFS) Amount as on 31.03.2018 (as per Audited financials) Amount as on 31.03.2017 (as per Audited financials) 1 Pramod Hendre Director and Shareholder Loan 4,12,14,042 3,42,26,182 2,55,81,022 2 Nandkumar P. Hendre Director and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Runali P Hendre Relative of Directors Salary 21,964 48,014 - 5 Tanishq P Hendre Relative of Directors Salary 23,300 23,300 - 6 Upasana N Hendre Relative of Directors Salary 1,39,710 1,02,062 - 7 Parinita N Hendre Relative of Directors Salary - - 24,200 8 Nandkumar Hendre Director Shareholder Loan 1,87,01,981 - - 9 Kunal Enterprise Enterprises over which directors is able to exercise significant influence Sundry creditors 82,68,678 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise, Mumbai-III passed order on 14/10/2014 and determined the liability of ₹ 1,05,15,382/- towards central excise duty not paid as Corporate Debtor s contention is that goods which are manufactured are covered under exemption and department is of the view that it is subject to duty. As against the abovementioned order, assessee has filed an appeal with CESTAT, Mumbai on 29/12/2016. CURRENT STATUS No date for hearing is decided till date. 4 January 2013 December 2013 Om Logistics Limited has sent a demand notice under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule, 2016 for ₹ 2,80,894/- on 26/07/2018. Om Logistics Limited has also filed civil petition in Civil court in the year 2015. CURRENT STATUS Since application filed by Print House (India) Private Limited u/s 10 of Insolvency and Bankruptcy Act, 2016(IBC) is admitted on 17.10.2018, no further action under IBC can be initiated. Operational Creditor can file their claim with the Resolution Professional. Hearing for Civil case is fixed on 14/06/2019 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has followed up with the concerned officer for rectification but officer is unable to rectify as TAN number is not reflecting in online system and therefore the demand of ₹ 98,37,120 is still reflecting in Traces. 10 November 2009 September 2014 Print House (India) Private Limited has failed to pay its dues related to employee s provident fund on time and therefore Assistant P.F. Commissioner, Thane has passed an order on 27/03/2015 and determined the damages of ₹ 22,14,380/- and interest of ₹ 12,99,952/- under section 14B 7Q of Employee s Provident Fund and Misc. Provisions Act,1952. As against the said order of Assistant P.F. Commissioner, Thane, Print House (India)Private Limited has filed an appeal with THE HON BLE EMPLOYEES S PROVIDENT FUND APPELLATE TRIBUNAL, DELHI on 11/05/2015.The said matter got transferred to THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO-1, MUMBAI. CURRENT STATUS Assessee has paid interest of ₹ 12,99,952/- against interest on 22/08/2018 and next date of hearing is fixed at 20/05/2019. 11 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 Shivaji Kasurde 6 Baburao Ghanekar 7 Ramesh Chavan 8 Pravin Salvi 9 Santosh Gaikwad 10 Pradeep Shinde 11 Sachin Tadkar 12 Santosh D Sawant 13 Suresh Dinga Amount of their claim is not determinable as on date CURRENT STATUS Next date of hearing is not fixed till date. 15 2010 In the year 2010, Mumbai Shramik Sangh has filed a suit in Labour Court at Thane on behalf of ex-employee Sandip Pawar for not paying minimum wages and for engaging in unfair labour practice. CURRENT STATUS Next date of hearing is fixed on 03/06/2019. 16 2010 In the year 2010, Mumbai Shramik Sangh has filed a suit in Labour Court at Thane on behalf of 17 employees for not paying minimum wages and for engaging in unfair labour practice and exploiting the workers and not maintaining proper records as required under various laws. 1 Sandesh Surve 2 Sharad Bhoir 3 Tukaram Parab 4 Vijay Sonate 5 Vilas Monte 6 Ravind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 0330020003 1,20,02,198 6 0330020123 20,88,820 Total 6,76,42,213 CURRENT STATUS No reply to said notice is given 5.6. Ongoing assessments As per the Information Memorandum, the Resolution Applicant understands that following are the ongoing assessments against the Company: Sr. No. Financial Year / Period Background 1 2017-18 Notice u/s 143(2) of the Income Tax Act, 1961 was issued on 09/08/2018 for computer aided scrutiny asking for any evidence to be submitted in support of return of income filed by the Company. Corporate Debtor replied to this notice on 16/08/2018 requesting to issue the questionnaire and Notice u/s 142(1) of Income Tax Act, 1961 asking for the required details for compliance with the said notice. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Applicant proposes the following financial proposal relating to the Corporate Debtor which has been detailed below. Further there are certain claims which have been mentioned in the Information Memorandum but have not been filed as a claim with the Resolution Professional, these have been addressed in Section G ii) under the Chapter IV Financial Proposal: Particulars Amount Rs Cr Remarks Payment of CIRP Process Cost At actuals Will be paid on actuals Based on declaration by RP and CoC, we understand that as on 19 Aug 19 all CIRP dues had been paid. Payment to Workmen/Employees Dues 0.00 No claims have been filed by employees and workers as per Information Memorandum. It is proposed that any retiral payments due to employees and workers, (except promoter group and relatives of Directors/Management) actively on the rolls as per information contained in the IM and after due verification will be paid out in full. The approval of this resolution plan would be deemed as a no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues against the tenancy. Provision for revival of the corporate debtor 5.58 INR 5.58 Cr. is set aside, o fund to cover any unforeseen contingencies and admission of OC claims under verification currently funds needed for revival of the company o provides for payment of any employee claims that might be admitted by the RP Any such claims that are under verification by the RP will be paid on a pro rate basis from this contingency fund and it is capped at a maximum of INR 5.58 Cr All other balance unpaid claims would be deemed to have been extinguished. Total 54.99 The Resolution Applicant is also agreeable to assign all recoveries from all the Related Parties as specified in section 5.4 of this Resolution Plan. The debt in this case could be assigned to the COC members and they will have to take necessary steps for recovery of the same as they deem fit. B. CIRP COSTS The Resolution Applicant proposes that CIRP Costs shall be paid upfront from the Upfront Payment (defined hereunder), in priority to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... successful closure of the resolution process. The Resolution Applicant also reserves the right to modify their existing terms of employment on conditions which are not more onerous than existing employment contract with the company. iii. Sify is committed to putting in reasonable effort to upskill employs and engage them in future operations with a role that might be commensurate with their qualifications and experience. Sify will reserve the right to transfer employees as required based on business exigencies with reasonable terms/redeploy to new activities/new positions that are not more onerous vis- -vis current terms of employment. The employees will be paid the due retirals as indicated in the IM after validation by the Resolution Applicant on their discharge. iv. Notwithstanding anything contained in this resolution plan, the Approval of this Resolution Plan shall be deemed to be a notice of discharge from employment for the Promoter Group and relatives of Directors/Management team of the Corporate Debtor. Further, no amount shall be payable to any of the Promoters Group or relatives of Directors/Management Team in any event. PAYMENT TO OTHER OPERATIONAL C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Professional. F. PROPOSAL FOR OTHER CREDITORS (not covered above) i. Other statuary dues and funds for revival: INR 5.58 Cr. is set aside to fund to cover any unforeseen contingencies and admission of OC claims under verification currently and funds needed for revival of the company a. This contingency also provides for payment of any employee claims that might be admitted by the RP. b. Any such claims that are under verification by the RP will be paid on a pro rate basis from this contingency fund and it is capped at a maximum of INR 5.58 Cr. c. This settlement will be on pro-rate basis as claims are admitted and no further payments are envisaged. ii. In relation to any other actual or potential third parties (including financial/operational creditors, existing shareholders and/or other stakeholders) whose claims have not been covered above, there will be no funds available for payment to them as the Liquidation Value is insufficient to satisfy the claims of even the Financial Creditors in full. Therefore, NIL payment has been proposed under the Resolution Plan towards payment to such creditors and/or stakeholders and no source has been ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditors to such capital reduction and that each of the Financial Creditors, if so required shall provide its consent in the form that is required by the Adjudicating Authority under the Applicable Laws. 3. EXISTING EMPLOYEES The Resolution Applicant will make endeavours to ensure continuity of maximum existing employees of the Company however Resolution Applicant reserves right to take any decision with respect of continuity of existing employees. 4. MANAGEMENT AND CONTROL OF THE COMPANY POST APPROVAL OF THE RESOLUTION PLAN BY THE ADJUDICATING AUTHORITY (a) During the Implementation Period, the Company will be monitored by the Monitoring Agent, as constituted by the Resolution Applicant in concurrence with the Resolution Professional and the CoC, in carrying out the day to day functions of the Company. (b) The Monitoring Agent shall be constituted comprising of 2 members of the Resolution Applicant (to be identified by the Resolution Applicant) and 1 representative of Financial Creditors (Financial Creditors to be identified by the CoC). The Monitoring Agent shall carry on its duty under the Applicable Laws. The existing directors of the Company s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nel appointed by the Resolution Applicant pursuant to this Clause shall not be liable for any past noncompliances with the provisions of Applicable Laws by the erstwhile key managerial personnel of the Company. 6. MANAGERIAL COMPETENCE AND TECHNICAL ABILITIES 6.1 Appointment of Auditors (Statutory and Internal) The Resolution Applicant shall have the right to replace the existing auditors (Statutory and Internal) of the Company and appoint new auditors as deemed fit by the Resolution Applicant upon acquisition of the control over the Company by the Resolution Applicant pursuant to the Resolution Plan. 6.2 Appointment of Turnaround experts The Resolution Applicant has an experienced technical team to restore the Corporate Debtor to operational viability. The Resolution Applicant plans to use its in-house turnaround experts as set out in Chapter II. In addition to the above, the Resolution Applicant also plans to induct few more technical experts from the industry, if necessary. CHAPTER VI TERM AND IMPLEMENTATION OF THE RESOLUTION PLAN 1. Term of the Plan The term of the Resolution Plan shall commence on the date on which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itoring Agent at all times. 3.4 Monitoring Agent s Costs- The fee payable to the Monitoring Agent shall be borne out of cash flows of the business of Company against the consideration of the Monitoring Agent fulfilling the obligations under the Resolution Plan. 3.5 Consultation with Resolution Applicant (a) Notwithstanding anything to the contrary contained in the Resolution Plan but subject to (b) below, considering the technical/ operational expertise of the Resolution Applicant, all operations related decisions shall be taken by the Monitoring Agent after due consultation with the Resolution Applicant. (b) Prior to the Effective Date, the Company shall not, without the prior written consent of the Resolution Applicant or unless approved by the Monitoring Agent, undertake any of the following other than as contemplated herein: i. The sale, transfer, mortgage, charge, pledge, creation of a lien, lease, exchange or other disposition of assets or any interest therein or sale or disposition of any part of the undertaking and/ or goodwill of the Company; ii. raising of any financing; iii. debt/lease financing and capital expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 (Indian Rupees Five lakhs only); xxi. not enter into or amend any agreement or incur any commitment which involves or may involve total annual expenditure in excess of INR 5,00,000 (Indian Rupees Five lakhs only); xxii. acceptance of deposits; xxiii. Prosecution or settlement of any claim or legal action, admission of any claim or giving any relief to any person or waiver of any claim against any party, grant of indemnity, guarantee or any form of assurance or support or security to any person, enforcement of indemnity against any person, defence of a claim of indemnity initiated by a third party, action against key personnel of the Company or defence of any action initiated by key personnel or third party; xxiv. Any decision which would create or is reasonably likely to create a direct obligation or liability to the Company as a shareholder, any material change in the nature of the business of the Company. (c) Further, the Company shall: i. carry on its business in the ordinary course of business consistent with past practice, use its best efforts to preserve intact its present business organisation, keep available the services of its present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of workmen and employees of the Company; (b) their name, designation, job description, and undertaking of the Company to which they relate; (c) their period of service with the Company; 6. Receivables All receivables of the Company under its various arrangements, agreements and contracts with third parties and/or receivables arising out of benefits, grants, privileges provided by any Governmental Authority and/or any payments due/that will become due in the future from any third party (whether a claim for such an amount has been made or not) shall continue to exists and shall not get extinguished upon the approval of the Resolution Plan by the Adjudicating Authority unless specifically provided for in the Resolution Plan. 7. INDICATIVE TIMELINE FOR IMPLEMENTATION Following are the indicative timelines for implementation: Sr. No. INDICATIVE ACTIVITY SCHEDULE Activity Timeline (Days) Phase 1- Approval Process 1 Approval of Resolution Plan by the Committee of Creditors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (c) On the Effective Date, the Resolution Professional shall provide a statement, containing details of the CIRP Costs as approved by the CoC from time to time, to the Resolution Applicant, and the same will be paid in full and priority to any other creditors of the company within the timelines, given under the Code and / or CIRP Regulations, from the Effective Date. The Resolution Applicant will infuse additional funds (if needed), by way of equity or any other appropriate means, to meet the CIRP Costs. (d) The Resolution Applicant and its Group Company(ies) have sufficient funds and do not envisage any challenge in terms of source for the payments. 2. Debt owed to Financial Creditors (a) Payment Terms: (i) Payment towards CIRP Process Cost, Workmen liabilities and Operational Creditors: Payment towards CIRP Process Cost, workmen / employee liabilities and other Operational creditors claim shall be paid as contemplated in this Resolution Plan. In any event, the same shall be paid in priority over any payment to be made to Financial Creditors (ii) Payment to Financial Creditors: Financial Creditors (irrespective of whether assenting or diss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deemed to be permanently extinguished by virtue of the order of the Adjudicating Authority approving this Resolution Plan and the Company or the Resolution Applicant shall at no point of time, directly or indirectly, have any obligation, liability or duty in relation thereto. 3. Payment to workmen / employee dues (a) The Resolution Applicant would like to continue employment of such employees and workmen of the Company as determined as suitable by the Resolution Applicant after receiving requisite details of the workmen and employees from Resolution Professional/Monitoring Agent on successful closure of the resolution process. (b) Sify is committed to putting in reasonable effort to upskills employs and engage them in future operations with a role that might be commensurate with their qualifications and experience. Sify will reserve the right to transfer employees as required based on business exigencies with reasonable terms that are not onerous vis- -vis current terms of employment. (c) In case of any exits the retiral amount and dues as indicated in the IM shared and duly vetted by the RA shall be paid to the employees (except employees related to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Code. This would imply that the Operational Creditors have the right to demand amounts that would be payable to them under a liquidation scenario. Resolution Applicant proposes to pay recoveries to operational creditors in similar proportion to the recoveries of financial creditors only to the extent of admitted claims by the Resolution Professional. Accordingly, the Resolution Applicant seeks a waiver of the remaining dues of operational creditors which have not been admitted by Resolution Professional. (g) Other statuary dues and funds for revival: INR 5.58 Cr. is set aside to fund to cover any unforeseen contingencies and admission of OC claims under verification currently and funds needed for revival of the company. (i) This contingency also provides for payment of any employee claims that might be admitted by the RP. (ii) If there are no such future claims as mentioned above, then the amount will be added to the payment to financial creditors. The amount will be paid in same proportion as being considered in the financial proposal. (iii) Any such claims that are under verification by the RP will be paid on a pro rate basis from this contingency fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contingent, whether or not set out in the Provisional Balance Sheet, the balance sheets of the Company or the profit and loss account statements of the Company or the List of Creditors, asserted or unasserted, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, present or future, in relation to any period prior to the Effective Date or arising on account of the acquisition of control by the Resolution Applicant over the Corporate Debtor pursuant to this Resolution Plan, shall stand extinguished by virtue of the order of the Adjudicating Authority approving this Resolution Plan and the Company shall not be liable to pay any amount against such dues. All notices, ongoing assessments, appellate or other proceedings pending or threatened in relation to the Company, in relation to any period prior to the Effective Date or arising on account of the acquisition of control by the Resolution Applicant over the Company pursuant to this Resolution Plan, shall stand terminated and withdrawn and all consequential liabilities, if any, shall stand extinguished and be considered as not payable by the Company by virtue of the order of the Adjudicating Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r obligations owed or payable to (including but not limited to any Operational Debt, any demand for any losses or damages, indemnification, principal, interest, compound interest, penal interest, liquidated damages, and other charges already accrued/ accruing or in connection with any third party Claims) any actual or potential Creditor, vendor, contracting counterparty, Governmental Authority, claimant or any other person whatsoever (including but not limited to the Operational Creditors and its promoters, directors and other related parties of the Company and/ or the Existing Promoters) (singular as Third Party and collectively as Third Parties ), whether admitted or not, due or contingent, asserted or unasserted, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, present or future, whether or not set out in the Provisional Balance Sheet, the balance sheets of the Company or the profit and loss account statements of the Company or the List of Creditors, in relation to any period prior to the Effective Date or arising on account of the acquisition of control by the Resolution Applicant over the Company pursuant to this Resolution Pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolution Applicant over the Company pursuant to this Resolution Plan, shall be settled at NIL value at par with Claims of Operational Creditors as set out in this Resolution Plan. (c) All liabilities in relation to any letters of credit, letters of undertaking, guarantees, counter guarantees, corporate guarantees, bank guarantees, performance guarantees or other contingent or future claims, liabilities and/or commitments of any nature whatsoever (including without limitation, the Tax, the Operational Creditor Claims and liabilities), issued by, or on behalf of, or at the behest of, the Company, or incurred or undertaken by the Company (as the case maybe), in relation to any period prior to the Effective Date or arising on account of the acquisition of control by the Resolution Applicant over the Company pursuant to this Resolution Plan, whether asserted or unasserted, whether admitted or not, crystallised or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, whether or not set out in the Provisional Balance Sheet, the balance sheets of the Company or the profit and loss account statements of the Company or List of Creditors, will be written off i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71, 72, 73, 74 of the Code), whether civil or criminal, that may be initiated or instituted post the approval of the Resolution Plan by the Adjudicating Authority on account of any transactions entered into, or decisions or actions taken by, such Existing Shareholders, managers, directors, officers, employees, workmen or other personnel of the Company, and the Company or the Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto. 9. Limit on Liability (a) Notwithstanding anything contained in this Resolution Plan, in no event the total cash payments by the Resolution Applicant or the Corporate Debtor to its stakeholders, for claims relating to a period prior to the Effective Date (including claims recognised in this Resolution Plan and claims that may arise in future), shall not exceed INR66,72,46,705 (Indian Rupees Sixty six crore seventy two lakh forty six thousand seven hundred and five only); (b) the approval of this Resolution Plan by the Adjudicating Authority, and in the case of creditors proposed to be paid pursuant to this Plan, upon the receipt by such creditors of such amounts, any an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 70 active employees and workmen as on the rolls of the company on current date. The Resolution Applicant further undertakes to provide adequate training and upskilling opportunities to employees so that they may find suitable employment within the corporate debtor. (b) Banks/FIs : Financial Creditors shall be paid a sum of INR 42.5 cr. towards full and final settlement of their claims in the manner set out in the Resolution Plan. However, it is hereby clarified that such payment shall not absolve or be treated as a waiver of the obligation of the existing promoters of corporate debtor or affect the rights of the Financial Creditors to initiate or continue the proceedings against the existing promoters of corporate debtor and the Financial Creditors shall have full discretion to take such steps as they deem appropriate for recovery of such amounts from the existing promoters of corporate debtor. (c) Operational creditors (statuary dues): (i) Admitted Statutory Dues claim: 100% of admitted Statutory Claim of INR 5,13,254 will be paid an upfront payment (within 30 days from the Effective Date) (ii) EPF Claim: 100% of EPF Claim of INR 29,13,346 (based on emai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le or liable for any such contingent liability. (b) New Claims Any new claim submitted to the Resolution Professional by any creditor, after the approval of the Resolution Plan by the Committee of Creditors shall not be eligible for consideration and/or payment under the Resolution Plan and shall be deemed to have been extinguished. (c) Treatment of Related Party Claims All claims on the Company by any Related Party and all liabilities of the Company towards any Related Party, as on and for the period prior to Effective Date, shall stand extinguished automatically, as on the Effective Date, pursuant to the Adjudicating Authority Approval Order, without any further action or step on the part of any Person. The Resolution Applicant shall not, in any manner whatsoever, at present or in future, be directly or indirectly responsible or liable for such claims/liabilities. (d) Treatment of Contractual Claims and Liabilities Except as otherwise provided in this Resolution Plan, all liabilities (statutory or otherwise) of the Company, arising from any contractual arrangements (including manpower contracts) entered into by the Company, any claims aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... encumbrances. 15. The Resolution Applicant hereby confirms that (a) the Resolution Applicant or any of its related parties has not failed to implement or contribute to the failure of implementation of any other resolution plan approved by the Adjudicating Authority at any time in the past; (b) this Resolution Plan addresses the cause of default; (c) this Resolution Plan is feasible and viable; (d) this Resolution Plan has provisions for its effective implementation; (e) this Resolution Plan has provisions for approvals required and the timeline for the same; and (f) the Resolution Applicant has the capability to implement the Resolution Plan. CHAPTER VIII RELIEFS AND CONCESSIONS, DIRECTIONS AND KEY ASSUMPTIONS 1. RELIEFS AND CONCESSIONS Part A: As discussed with CoC In addition to the approval sought hereinabove, the Resolution Applicant requests the Adjudicating Authority for the reliefs and concessions set out below for the successful implementation of the Resolution Plan. By approving this Resolution Plan, the Adjudicating Authority shall approve the waivers, reliefs and concessions listed below: (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aged under the Resolution Plan. Part B: Other Reliefs and Concessions sought In addition to the approval sought hereinabove, the Resolution Applicant requests the Adjudicating Authority for the reliefs and concessions set out below for the successful implementation of the Resolution Plan. By approving this Resolution Plan, the Adjudicating Authority shall approve the waivers, reliefs and concessions listed below: (a) The Company and the Resolution Applicants hall be granted an exemption from all taxes, levies, fees, transfer charges, transfer premiums, and surcharges that arise from or relate to implementation of the Resolution Plan, since payment of these amounts may make the Resolution Plan unviable. (b) All Governmental Authorities, including but not limited to the RBI, the Ministry of Environment, the Central and State Pollution Boards to waive any noncompliances by the Company on or prior to the Effective Date. (c) Waiver of any property tax, whether or not claimed, whether or not filed, whether or not crystallised, whether or not accrued, whether or not admitted, whether or not notional, whether or not known, whether due or contingent, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r not decreed, whether or not reflected in the financial statements of the Company, or whether or not reflected in any record, document, statement, statutory or otherwise, arising prior to or after the Effective Date, but pertaining to period prior to the Effective Date, and / or arising in connection with assignment or acquisition of shares of the Company or conversion of the Debt into Equity or in any other manner as a result of or in connection with this Resolution Plan, shall be deemed to have been irrecoverably waived and permanently extinguished and written off in full with effect from the date of Adjudicating Approval Order. To give effect to such waiver and extinguishment, any contract, agreement, deed or document, whether oral or written, expressed or implied, statutory or otherwise, pursuant to which any such dues, liabilities, obligations, claims, counterclaims, demands, actions, penalties, right, title or interest in claimed (other than as specifically mentioned herein) shall stand modified with effect from the date of Adjudicating Approval Order without any further act, deed and approval of the Resolution Plan by Adjudicating Authority shall be deemed to be sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t related regulations, Companies Act, 1956 and Companies Act; iii. Liability in respect payment of any statutory dues or amounts payable to the employees of the Company under laws relating to payment of gratuity, bonus, provident fund leave encashment and any similar amounts (j) Waiver/extinguishment of any tax (including but not limited to income-tax and MAT) and duty (including interest, fine, penalty, etc.) and legal liability pertaining for the period prior to the Effective Date such as any kind of existing and/or future litigation/assessment/scrutiny/contingency etc., (k) From the Effective Date, all inquiries, investigations and proceedings, whether civil or criminal, suits, claims, disputes, proceedings in connection with the Company or affairs of the Company, including proceedings before any courts, tribunals, authorities, pending or threatened, present or future in relation to any period prior to the Effective Date, or arising on account of implementation of this Resolution Plan shall stand withdrawn and dismissed and all liabilities and obligations therefore, whether or not set out in the balance sheets of the Company or the profit and loss account state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction is specifically denied or rejected by the Adjudicating Authority, the same shall be deemed to have been granted. (b) Direction to the relevant collector/department of stamps for waiver from the levy of stamp duty applicable in relation to this Resolution Plan and its implementation as envisaged under the Resolution Plan. (c) The Company and the Resolution Applicant shall be granted an exemption from all taxes, levies, fees, transfer charges, transfer premiums, and surcharges that arise from or relate to implementation of the Resolution Plan, since payment of these amounts may make the Resolution Plan unviable. This would include waiver of any Tax and MAT liability on account of purchase of Equity Shares of the Company from selling shareholders, waivers of MAT and income tax implication arising due to hiving off of surplus/ obsolete assets, sold for raising money to make balance payment and waiver of MAT and income tax implication arising due to write back/ write off of liabilities in the books of accounts of the Company, without any impact on brought forward tax and book loss/ depreciation, pursuant to this Resolution Plan. Appropriate directions from the Adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control clauses; viii. All rights of the Company and in relation to the land owned by the Company shall continue to vest with the Company, notwithstanding the change in ownership and/or management of the Company without the requirement for any express approval or consent of any party; ix. All statutory obligations due to the Governmental Authorities arising due to the CIRP Period shall have been duly discharged by the Company and/or the Resolution Professional; x. All liabilities due to workmen and employees of the Company arising during the CIRP Period shall have been duly discharged by the Company and/or the Resolution Professional; xi. All taxes relating to the Company s business and operations up to the Effective Date have been duly discharged. CHAPTER IX MISCELLANEOUS 1. GOVERNING LAW The Corporate Debtor and the new management shall be governed by the laws of India giving effect to Adjudicating Authority order approving the Resolution Plan and any agreements, documents and instruments executed in connection with the Resolution Plan 2. ACCOUNTING On and after the Effective Date, to give effect to the Resolution Plan, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not limited to liability pertaining to the Financial Creditors, Operational Creditors, other Creditors or any dues, claims, demand in present or in future or any contingent liability or any disputes or litigations filed or against the Company shall continue in its name and shall not be waived or modified in any manner. Provided further that the Resolution Applicant shall be entitled to withdraw the Approved Resolution Plan (without any liability) in case the Adjudicating Authority directs any material amendment to the Approved Resolution Plan, which results in an adverse effect or increased financial liability for the Resolution Applicant. 5. ASSIGNMENT BY CREDITORS If at any time before the Adjudicating Approval Date, any creditor transfers / assigns its loans / debts to any other person or third party, such assignee / transferee shall be bound by the terms of this Resolution Plan. 6. SEVERABILITY (a) In the event it is determined that any provision of the Resolution Plan is unenforceable either on its face or as applied to any claims or transaction and/or in the event any provision of the Resolution Plan becomes invalid for reasons other than by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CO-OPERATION FOR HANDOVER Where the Resolution Professional and the Monitoring Agent do not co-operate with the Resolution Applicant in handing over of all assets and records of the Corporate Debtor in accordance with this Resolution Plan, the Resolution Applicant shall be entitled to make an application to the Adjudicating Authority for necessary directions. 9. CO-OPERATION BY FINANCIAL CREDITORS In the event that any proceedings are instituted against the Corporate Debtor or the Resolution Applicant or the CoC or the Resolution Professional opposing the approval of the Resolution Plan or seeking to prevent its implementation, the Financial Creditors of the Corporate Debtor who approved the Resolution Plan shall support the Resolution Applicant for the approval of the Resolution Plan and shall object to any opposition to such Resolution Plan. Financial Creditors shall promptly provide for satisfaction of all the charges and issuance of no objection certificate to the Resolution Applicant after due payment, as per the terms of this Resolution Plan, to the Financial Creditors 10. EFFECT OF THE ORDER OF ADJUDICATING AUTHORITY A certified copy of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be not maintainable or to have been terminated and closed upon the production and lodgement of the certified copy of the Approved Resolution Plan or a notarially certified copy of the Approved Resolution Plan. 11. REMOVAL OF DIFFICULTIES In the event that any difficulty arises in the implementation of this Resolution Plan, the Company or the Resolution Applicant shall be entitled to move an application before the Adjudicating Authority and the Adjudicating Authority shall consider passing such orders or modifications of the Resolution Plan as removes the difficulty in its implementation without the requirement of any further decision or vote of the CoC who shall stand discharged in accordance with the Resolution Plan. 12. DECLARATION TO THE EFFECT THAT THE RESOLUTION PLAN IS NOT IN CONTRAVENTION OF PROVISIONS OF ANY APPLICABLE LAW The Resolution Applicant declares that this Resolution Plan is not in contravention of the provisions of any applicable laws. 13. STATEMENT IN RELATION TO HOW THE RESOLUTION PLAN HAS DEALT WITH INTERESTS OF ALL STAKEHOLDERS, INCLUDING FINANCIAL AND OPERATIONAL CREDITORS OF THE COMPANY As set out above in the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or voidable or repudiated or frustrated or capable of rescission for any reason, and in particular but without limitation by reason of the lack of consideration, default, fraud or misrepresentation and that no governmental or regulatory authority has withdrawn, cancelled or revoked any approval, permission or consent as of the date hereof. 2. The Resolution Plan has been prepared based on the Information Memorandum, Code and the CIRP Regulations as existing as on the date of this Resolution Plan. In the event of any subsequent amendment to the Code and/or the CIRP Regulations which may affect the Resolution Plan in any manner whatsoever, the Resolution Applicant reserves the right to amend/modify the terms of the Resolution Plan anytime post such amendment to the Code and/or the CIRP Regulations. 3. All claims as disclosed and finalised in the Information Memorandum are treated as conclusive and the Resolution Applicant shall be absolved of any liabilities or obligations in respect of or in relation to any claims or liabilities that are not disclosed in the Information Memorandum even if such claims or liabilities are submitted post the submission of the of this Resolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any event within 30 days give to the other person written particulars of any such circumstances and thereafter, the Resolution Applicant, Resolution Professional and the Monitoring Agent, as the case maybe, shall co-operate fully with a view to implement the terms of the Resolution Plan. Upon approval of the Resolution Plan by the Adjudicating Authority, Resolution Applicant shall ensure its effective implementation. However, if this Resolution Plan cannot be implemented for any reason not attributable to the Resolution Applicant, then the Resolution Applicant shall have no liability on this account, including any performance guarantee provided by the Resolution Applicant. 14. The enforcement of the Bank Guarantee issued under the terms of the RFRP shall be subject to the acquisition of the Mandatory Approvals as set out in Schedule I. 15. Conflict In the event of any repugnancy or inconsistency between this Resolution Plan and any other documents, the provisions contained in this Resolution Plan shall prevail for all purposes and to all intents. 16. Entire Resolution Plan The Resolution Plan along with its Schedules, Annexures and Appendices c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Plot No 8, P T Colony, Karkhana, Secunderabad 500 009 4. C B Mouli 1-2-412/18A, Bharathi NivasGaganmahal Colony, Domalguda, Hyderabad 500 029 5. Arun Seth A7, Geetanjali Enclave, South Delhi, New Delhi 110 017 6. Vegesna Bala Saraswathi 5808, Trowbridge Way San Jose, California 95138, USA 7. C E S Azariah Flat No. 3FF, Vayur Block, Parsn Apartments (Opp. Fatima College) Madurai -Dindigul Highway, Madurai - 625018 5 Shareholding Percentage Shareholding Pattern as on 8th July 2019 No. of shares % of Shareholding Foreign holding: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries Pvt Ltd 6. Ramanand Core Investment Company Pvt Ltd 7. Raju VegesnaAgro Farms Estates Pvt Ltd 8. V.A.R. Agrotech Pvt Ltd 9. V.R.R. Agrotech Pvt Ltd 10. Satya SravanthiAgro Farms Pvt Ltd 11. AnanthaKoti Raju Developers Pvt Ltd 12. Raju Vegesna Developers Pvt Ltd 13. Ramanand Developers Pvt Ltd 14. V.A.L.S. Developers Pvt Ltd 15. V.R.R. Shelters Pvt Ltd 16. Aarti Realtors (India) Pvt Ltd 17. KKAAR Farms Developers Pvt Ltd 18. Silver Hill Town Farms Developers Pvt Ltd 19. Raju Vegesna Properties (India) Pvt Ltd 3. T H Chowdary 1. Tera Software Limited 2. Softsol India Limited 3. Sify Data and Managed Services Ltd 4. C B Mouli 1. Nagarjuna Fertilisers and Chemicals Limited 2. Jaiprakash Engineering and Steel Company Limited 3. Sify Data and Managed Services Ltd 4. Ammana Equity Fund Private Limited 5. Nagarjuna Foundations 6. Royal Taxation and Accounting Consultants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To East: Plot No R-847/3 To West: Plot No R 847/1 To South-Estate Road To North-Open Space SCHEDULE IV SECURITY POSITION DETAILS OF SECURITIES WITH FINANCIAL CREDITORS: PART A 20. Plot No R-847/2, In Trans Thane Creek Industrial area within the village limits of Rabale and within the limits of Navi Mumbai Municipal Corporation, Taluka Thane, Dist-Thane containing admeasurements 12,416 sqmtrs. Or there about together with the structure constructed there on admeasuring 60000 sq ft and bounded as follows: To East: Plot No R-847/3 To West: Plot No R 847/1 To South-Estate Road To North-Open Space 21. Hypothecation of Movables and current assets and plant and machinery, stocks, book debts. PART B 1. Title of printing machine Komori Original flying integrated infeed unit model FPI-40/4322. SCHEDULE V BUSINESS PLAN A. Description of business proposed to be carried out: Sify intends to continue the business activities in the facility of Corporate Debtor ( PHIPL ) by converting the building that houses the printing facility and the facility that is sub-leased to tena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C) of the USA. Sifyhas been awarded Golden Peacock Award in the year 2014, which is a recognition of strong corporate governance practices. Our governance structure and the effective management team will ensure that the assets are put to the maximum and most relevant use thereby benefiting all the stakeholders involved. 2. To be Relevant in Digital India: India is transforming into digital country with the Government of India encouraging Indian Companies to set up Data Centre to support the institutions and Industries. The Governmentand industries have gained hugely due to Digital growth in the Country over the last decade.The data privacy and data protection rights proposal by Government of India is likely to make more multi-national companies have their data residing in India, which will push for buoyant growth in data center services. Mumbai, being one of the primary Gateway for the Internet in the country, will largely benefit from this policy initiative. Sify, with its data center strategy in Navi Mumbai, will look to partner in this digital India campaign. 3. To support Make in India Policy: Sify sources the inputs required for the construction, op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CoC that the Hon'ble Delhi High Court, in the Matter Of - M/S. INDO RAMA TEXTILE LTD. Vs. M/s. Spentex Industries on 23 July, 2012 held that: 41. Upon reading of the aforesaid Section, it is apparent that the definition of Demerger in Act, 1961, would be satisfied if the undertaking that is being demerged is hived off as a going concern, that means, if it constitutes a business activity capable of being run independently for a foreseeable future. To ensure that it is a going concern, the Court while sanctioning a Scheme can certainly examine whether essential and integral assets like plant, machinery and manpower without which it would not be able to run as an independent unit have been transferred to the demerged company. Hence, lease business constitutes a business activity capable of being run independently for a foreseeable future. To ensure that it is a going concern, the Resolution Applicant proposes that essential and integral assets and manpower to run leasing business as an independent unit have been proposed to be continued by the Resolution Applicant. The printing business along with its essential and integral assets like plant, machinery and manpower (who ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of action required for starting of the operation. The Resolution Applicant shall have access to all the records/ premises/ factories/documents through the Resolution Professional to finalise the further line of action required for starting of the operation. 45. The directions embodied and period of implementation provided hereinabove shall be effective from the date of receipt of this Order. MA No.3137/2019 in MA No.2972/2019 in CP (IB) No.82/MB.II/2018 46. This is an Application moved by Shri Pramod Hendre and Shri Nandkumar Hendre, suspended directors and promoters of the Corporate Debtor, viz., Print House (India) Private Limited, under section 60(5) of the Code, seeking to implead themselves in the MA No.2972/2019 filed by the Resolution Professional for approval of the Resolution Plan submitted by Sify Technologies Limited, the successful Resolution Applicant. 47. It is the contention of the applicants herein that the Resolution Plan submitted by Sify Technologies Limited, the successful Resolution Applicant, is nothing but a plan for sale of the assets of the Corporate Debtor and simultaneously one for the recovery of debts of the majority Financial Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be maintained in the CIRP, in favour of the Resolution Applicant. 49. We have considered the objections raised by the Applicants herein, to the Resolution Plan approved by the CoC. The main objection of the Applicants is that the Resolution Applicant intends to change the main business of the Corporate Debtor from printing business to running Data Centres. 50. We are of the view that there is nothing in the Code that inhibits a Resolution Applicant from pursuing a line of business that is different to the erstwhile business of the Corporate Debtor. If this proposition is accepted, then it would mean that there can never be a situation where the successful Resolution Applicant can revive a Corporate Debtor by pursuing a different line of business. We can easily conceive a situation where the business of the Corporate Debtor is overtaken by technology examples that come to mind are the pager business, fax business, telex business etc., which were consigned to the dustbin of history when technology overran them. Besides, the Code only contemplates that to the extent possible, the Corporate Debtor shall be continued to be run as a going concern. That, by no means, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
