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TMI Blog2021 (10) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... n Form A was made on 15.06.2018. Pursuant to the public announcement, claims were received from 5 (five) financial creditors. After the verification and admission of the claims, the Committee of Creditors (CoC) was constituted consisting of 5 (five) financial creditors. The CoC in its 1st Meeting on 12.07.2018, unanimously resolved to continue Interim Resolution Professional as the Resolution Professional. A copy of minutes of meeting dated 12.07.2018 is attached as Annexure A-3. 3. It is stated that the CoC in its 2nd meeting dated 04.08.2018 (Annexure A-4), the applicant informed that an undertaking is required for the members of the CoC to maintain confidentiality of the information contained in Information Memorandum. The CoC in the same meeting has discussed and decided the eligibility criteria for submission of resolution plan which is mentioned as follows:- (a) Net worth of at least Rs. 50 Crores, (b) Along with Expression of Interest, the prospective resolution applicant shall deposit Rs. 50 lakhs towards earnest money deposit in favour of corporate debtor. 4. It is submitted that the Form G for the first time was published on 22.08.2018 (Annexure A-6) and thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the application for exclusion of certain period which was lost in litigation. 10. In the 14th Meeting of COC which was held on 27.03.2019. The resolution plan submitted by Som Distilleries Pvt. Ltd. was put forward by RP before the members of CoC. Another resolution applicant namely 'Kals Distilleries Pvt. Ltd.' was allowed to submit the resolution plan within two weeks vide order of this Adjudicating Authority dated 04.04.2019 (Annexure A-23). After detailed discussions by the Members of CoC in further meetings, both resolution plans were modified/amended many times. 11. In the 19th Meeting of COC, which was convened on 04.06.2019, the Members of COC has discussed in detail the resolution plan submitted by Som Distilleries Pvt. Ltd. and by Kals Distilleries Pvt. Ltd. The Members of COC, after detailed discussions, have unanimously rejected the resolution plan of Som Distilleries Pvt. Ltd. mainly on the grounds of credit worthiness of Som Distilleries Pvt. Ltd. The COC has also discussed the plan submitted by Kals Distilleries Pvt. Ltd. and has unanimously approved the same. The copy of minutes of 19th COC Meeting is attached as Annexure A-28. Accordingly, a letter of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the affairs of the corporate debtor after its approval. There is specific provision made for the management and control of the company after the approval of the resolution plan. A detailed mechanism regarding the management and control is discussed in Clause 6 of the resolution plan under the heading 'Management and Control During the Term of Resolution Plan". It is stated therein that after the approval of the resolution plan all the present Directors of the Mount Shivalik Industries Limited shall be deemed to have removed from the Board of Directors. The representatives nominated by the resolution applicant shall join the Board of Directors of Mount Shivalik Industries Limited. 17. Section 30(2)(d) of the Code envisages that it must provide for implementation and supervision of the resolution plan. Clause 7 of the Resolution Plan provides for a detailed mechanism for effective implementation of the resolution plan. 18. Section 30(2)(e) of the Code requires that the resolution plan does not contravene any of the provisions of the law for the time being in force. In Form H, filed as Annexure A-31 of the application, it has been submitted by the RP as per the requirement of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l along with the compliance certificate in Revised Form H, as per the requirements of Regulation 39(4) of the CIRP Regulations meets all the requirements of the Code and the CIRP Regulations and that the resolution plan has been duly approved by the Committee of Creditors. 25. In view of our finding that the resolution plan submitted by Kals Distilleries Pvt. Ltd., as approved by the COC satisfies all the requirements of the Code and Regulations made thereunder. 26. It is relevant to be stated here that after the instant IA was heard and orders were reserved, Sach Marketing Pvt. Ltd. filed Company Appeal (AT) (Insolvency) No. 180 of 2021 having aggrieved with the order dated 18.01.2021 in IA No. 135/JPR/2019 of the Adjudicating Authority in dismissing the said IA by confirming the decision of the RP in considering the claim of M/s. Sach Marketing Pvt. Ltd. as operational debt. The Hon'ble NCLAT vide its order dated 09.03.2021 directed the Adjudicating Authority not to pass any final orders. The said company appeal was finally disposed of by the Hon'ble NCLAT vide order dated 07.10.2021 and the relevant paragraphs of the same read as under:- "21. The Appellant had specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the rejection, but while the I.A. preferred by the Appellant was kept pending, the RP filed I.A. 186/JPR/2019 seeking approval of the Resolution Plan was filed and the Adjudicating Authority dismissed the I.A. preferred by the Appellant only on 18.01.2021. The Appellant Counsel has submitted that they are not pressing for reconstitution of the CoC at this stage and do not intend to challenge or oppose the Resolution Plan, but only to seek for the debt amount to be treated as a 'Financial Debt'. 24. For all the aforenoted reasons, this Appeal is allowed and the Impugned Order is set aside. We hold that the said amount of debt herein is to be treated as a 'Financial Debt'. We are also conscious of the importance of timelines to be maintained by us as observed by the Hon'ble Supreme Court in 'Ebix Singapore Pvt. Ltd.' Vs. 'Committee of Creditors of Educomp Solutions Ltd. & Anr.' Civil Appeal No. 3224 of 2020 and therefore request the Adjudicating Authority to decide the matter as expeditiously as practicable.' 27. The Hon'ble NCLAT while holding the debt of M/s. Sach Marketing Pvt. Ltd. is a financial debt, set-aside the order dated 18. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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