9911796707
TMI Blog2022 (1) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... I. A. No. 145 of 2021. 2. The facts, in brief, are that the corporate debtor had been admitted into CIRP on January 22, 2020. During the pendency, it is claimed by the applicant that the resolution professional was apprised all the fact that the erstwhile promoters/suspended management were ineligible under section 29A of the IBC, 2016 to submit a resolution plan. Further, the resolution professional vide its letter dated August 12, 2020 informed that the corporate debtor had been converted into MSME and by virtue of section 240A of the IBC, 2016, ineligibility under section 29A of the IBC, 2016 was not applicable. It is further claimed that I. A. No. 514 of 2020 had been filed wherein this Adjudicating Authority held that notification dated June 1, 2020 was prospective nature, hence, the erstwhile promoters/suspended management was not eligible to submit resolution plan as they were ineligible under section 29A of the IBC, 2016. A copy of the order dated January 6, 2021 has been attached with the application. It has also been alleged that the said order of this Adjudicating Authority was not brought to the notice of the CoC and therefore, the approval of the CoC is vitiated. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 29A(c) of the IBC, 2016 because as on the insolvency commencement date, i. e., January 24, 2020 account of the corporate debtor had not been classified as non-performing assets. It has also been claimed that the applicant is merely making baseless allegations with the malicious intention to stall the CIRP proceedings of the corporate debtor on false and frivolous grounds. 4. On behalf of the resolution professional, it has been contended that assuming for a moment that the corporate debtor was MSME post insolvency commencement date even in that situation, eligibility of suspended management/promoters to submit resolution plan cannot be challenged in view of the decision of the hon'ble National Company Law Appellate Tribunal in Company Appeal (AT) (Insolvency) No. 1034 of 2020 vide order dated June 1, 2021 (Rakesh Kumar Agarwal v. Devendra P. Jain, Liquidator of Asis Logistics Ltd. [2021] 15 Comp Cas-OL 99 (NCLAT)) wherein identical facts, a similar order of the Adjudicating Authority has been reversed and held that in such situation, the appellant will be eligible to submit its scheme. 5. We have considered submissions made by both sides. Without going into detaile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such relief and concession made it clear that only such relief would be granted which this Adjudicating Authority is empowered to in view of the decision of the hon'ble Supreme Court in the case of Embassy Property Developments P. Ltd. v. State of Karnataka [2020] 9 Comp Cas-OL 609 (SC) and Gujarat Urja Vikas Nigam Ltd. v. Amit Gupta [2021] 226 Comp Cas 432 (SC). 9. We have considered the submissions made by both sides and the material on record. As far as amount provided for various stakeholders in the resolution plan is concerned, the following chart is reproduced : Sl. No. Category of shareholder* Sub-category of stakeholder Amount claimed Amount admitted Amount provided under the plan# Amount provided to the amount claimed (%) 1. Secured financial creditors (a) Creditors not having a right to vote under sub-section (2) of section 21 - - - - (b) Other than (a) above (i) Who did not vote in favour of the resolution plan - - - - (ii) Who voted in favour of the resolution plan 44,14,62,054 44,14,62,054 Principal 44,14,62,054 Interest 11,25,72,823 100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to conduct of the CIRP as well as process adopted for resolution plan have been given. It is further noted that certificate as regard to eligibility of the resolution applicant under section 29A along with undertaking of the resolution applicant to this effect has already been given. There are no preferential undervalued or extortionate transaction. We have also perused the contents of the resolution plan and requirement of regulations 36 to 39 of the CIRP Regulations, 2016 have been complied with. We further note that resolution applicant complies with the requirement under section 30(2)(b) of the IBC, 2016. We also find that the resolution plan addresses the cause for failure and also contains measures to run the corporate debtor in future. We also find that resolution plan is both feasible and viable as held by the CoC and it also contains provision for its effective implementation. Accordingly, we approve the resolution plan and pass following order : (1) The applicant had sought 22 days delay condonation for filing this application from the last date of the CIRP which we grant in the fact and circumstances of the case. (2) The approved "resolution plan" shall become eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... III) On the effective date and with effect from the appointed date, all encumbrances on the assets of the corporate debtor prior to the plan shall stand permanently extinguished on satisfaction of liabilities due to creditors and completion of procedural formalities as provided in the Companies Act, 2013. (IV) For reliefs and concessions sought from the concerned Income-Tax Authority/GST Authority, we direct the resolution applicant to approach the concerned Authorities who shall decide the issues including waivers/exemption from taxes as per the provision of respective statute. (V) Also for reliefs and concessions in regard to direction to Government of Gujarat and waiver from applicability of requirements for acquisition and transfer of land/assets, we direct the resolution applicant to approach the concerned Authorities who shall decide the issues including waivers/exemption as per the applicable laws. (VI) The resolution applicant shall be entitled to review, revise or terminate any appointments/agreements entered into by or on behalf of the corporate debtor in accordance with the terms and conditions of such agreements/memorandum of understandings/contracts. (VII) The ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
