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TMI Blog2021 (9) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... licant so that it can transfer the existing shares of the CD in its favour; c. Direct the members of the Monitoring Agency to provide support to the applicant to reconstitute the Board of the Directors of the Corporate Debtor in order to expedite the implementation of the approved Resolution Plan; d. Direct for the smooth implementation of the Resolution Plan by all concerned; e. Pass an ex-parte ad interim order for maintaining status quo as regards the Corporate Debtor herein during the pendency of the instant application; 2. The applicant states that the Corporate Debtor had been undergoing the Corporate Insolvency Resolution Process (CIRP) and Mr. Sundaresh Bhat was its Resolution Professional. The Resolution Plan filed by the Resolution Applicant was approved by the Committee of Creditors by 99.48% voting shares in the 8th Meeting held on 12.11.2018. Thereafter, the NCLT, Mumbai Bench vide Order dated 22.01.20l9 approved the Resolution Plan. After the approval of the Resolution Plan, Mr. Sundaresh Bhat (hereinafter referred as the "Erstwhile Resolution Professional") had conducted meetings of Lenders in presence of one representative each of Resolution Applicant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved Resolution Plan. As per the approved Resolution Plan, the Board of Directors of the Corporate Debtor had to be reconstituted on the Effective Date with two Directors to be appointed by the Resolution Applicant and one Director being industry expert to be appointed as Independent Director. However, the Directors were not appointed due to "ACTIVE Non-Complaint" status of the Corporate Debtor on the website of the Ministry of Corporate Affairs. The applicant states that the Resolution Applicant is making efforts to appoint Board of Directors of the Corporate Debtor and to implement the approved Resolution Plan as per the provisions contained therein and is regularly updating the lenders in this regard. 5. Tricounty Holding Pvt. Ltd. is an Indian subsidiary/associate concern of the Resolution Applicant, and this entity has been managing the Corporate Debtor post the Effective Date, The entity is making the payments to the creditors under the Approved Resolution Plan and to the employees and suppliers of the Corporate Debtor to maintain the Corporate Debtor as going concern. 6. The applicant states that the 5th Lenders' Meeting was held on 24.01.2020, wherein the Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but a genuine request by the Resolution Applicant to complete its obligations under the approved Resolution Plan. The applicant further states that the reliefs as sought shall maximize and balance the interest of all stakeholders and the application is bona fide and in the interest of all stakeholders of the Corporate Debtor. 8. It has been noted that this matter was taken up by this Adjudicating Authority on April 12, 2021. The application has been mainly filed for seeking extension of time by six months i.e., up to 31.10.2021 to complete implementation of the Resolution Plan. 9. We have heard Learned Senior Counsel/Counsel appearing for both the parties. As per the submissions of the Sr. Counsel Mr. Ratnanko Banerjee, a sum of Rs. 45.00 crore ought to have been paid on or before 31.03.2021. However, the same has not been done. Till the date of said hearing only around Rs. 15.00 crore was paid by the Resolution Applicant. 10. Ld. Counsel for the Monitoring Committee, Mr. Abhishek Sharma stated about non-compliances on the part of the Resolution Applicant. Ld. Senior Counsel Mr. Joy Saha appearing on behalf of State Bank of India states that there are no settlement talks goin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ro 6 @ Pg. 5 of I.A. 62 of 2021); (vii) The RA has made payment of Rs. 10.61 Lakhs towards the CIRP Costs as on 22.01.2019. (Averred at Para 9 @ Pg. 6, annexed at Pg. 26 @ pg. 29 of Reply affidavit dt. 23.11,2020 to MA 32; averred at Para 5.8 @ Pg. 10 of CA 58); (viii) RA has been making continuous payments and has paid the entire CIRP Costs in full and has also paid the entire dues of workmen and employee of the Corporate Debtor. (Averred at Para 19 @ Pg. 11 of Reply affidavit dt. 23.11.2020 to MA 32); (ix) RA has shown their bona fide intention by appropriating Rs. 12 Crore to the creditors even after SBI has filed the liquidation application. (Averred at Para 24 @ Pg. 14 of Reply affidavit dt. 23.11.2020 to MA 32); (x) The amount of Rs. 12 Crore has been paid by the RA from its personal funds as no financial institution agreed to provide loans due to incomplete hand over by FCs. (Averred at Para 25 @ Pg. 15 of Reply affidavit dt, 23.11.2020 to MA 32); (xi) The RA has been making full payment of the dues of the doctors, technicians, employees and vendors throughout the period and has been keeping the company a going concern and has paid an amount of Rs. 10.04 Crore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear and the balance 50% shall be redeemed at the end of 2 years from the date of their issuance, Interest on the said debentures shall accrue @ 8% on simple basis and shall be paid at the time of their redemption. The RA shall also give security of this amount which shall be to the satisfaction of the lenders," 14. At this stage, this Adjudicating Authority cannot be compelled to direct the financial creditors to negotiate a modification to the Resolution Plan. This is in line with the decision of the Hon'ble Supreme Court dated 23.02.2021 in Committee of Creditors of Amtek Auto v Dinkar T Venkatasubramaniam [2020 SCC Online SC 1187], Evert taking the case of the successful resolution applicant at its highest, it can only explain that part of the resolution plan which deals with generation of revenues from the use of the corporate debtor's diagnostic equipment. It does not explain why the successful resolution applicant did not bring in the funds from external sources to revamp the corporate debtor as per the resolution plan. This only goes to show that the successful resolution applicant is hedging its bets. The attempt to invoke some kind of "special equity" on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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