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TMI Blog2019 (1) TMI 1959X X X X Extracts X X X X X X X X Extracts X X X X ..... granted and are hereby rejected. The Plan further seeks immunity from any actions and penalties (of any nature) under any law for any non-compliance of laws in relation to the Company or by the Company, which was existing as on the date of acquisition of control by the Resolution Applicant over the Company and which continues for a period of upto 12 months after the acquisition of control by the Resolution Applicant over the Company. The said reliefs cannot be granted and are hereby rejected - Plan also seeks immunity for the RA and the Company from any actions and penalties (of any nature) under any law for any non-compliance of laws in relation to the Company or by the Company, which was existing as on the Completion Date and which continues for a period of upto 12 months after the acquisition of control by the RA over the Company. The said reliefs cannot be granted and are hereby rejected. The resolution plan is approved with modifications, as mentioned above, which shall be binding on the corporate debtor and its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan - moratorium order under section 14 shall cease to have effect f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avour. 4. Eventually the RP, on 27.06.2018, filed M.A. No. 649/2018 under section 33(1) of IBC seeking liquidation of the Corporate Debtor since no resolution plan could be approved. The RA on 19.07.2018 filed application being MA 736/2018 challenging the decision of CoC rejecting its resolution plan and opposing the liquidation application filed by the RP. The suspended Promotor/Director of the Corporate Debtor also filed application on 19.07.2018 being MA 737/2018 opposing the liquidation application filed by the RP. 5. Eventually, State Bank of India, one of the Financial Creditor having 47.28% voting share in CoC, on 12.10.2018, with the leave of this Tribunal filed an affidavit dated 04.09.2018, stating that it had voted against the resolution plan dated 21.06.2018 submitted by the RA during the e-voting held on 25.06.2018. It is further stated in the said Affidavit that since the RA, vide its letter dated 23.08.2018, has increased its offer to Secured Creditors from ₹38,00,00,000/- to 45,00,00,000/- and the increased amount of ₹7,00,00,000/- will be payable over two annual instalments along with interest at 8% p.a., it is willing to accept the revised/final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Resolution Applicants own funds NBFC ₹15 Cr. In principle sanction available of ₹35.00 crores from NBFC, Shanky Financial Service Private Limited. Internal Accrual ₹8.50 Cr To be sourced from internal accruals. Total ₹45 Cr. 2. Payment to Unsecured Financial 43.80 0.44 The Resolution Applicant proposes to settle the total outstanding claim of the Unsecured Financial Creditors at 1% of the claim amount, being ₹00.44 crore, in the same manner, without any interest, as proposed for financial creditors. 3. Operational Creditor 17.88 1.01 5% of Their outstanding to be paid on or before 31.03.2019. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Equity Contribution for Secured FCs 19.00 Equity contribution by Resolution Applicant. The net worth of owner of Tricounty Premier Hearing Services INC is ₹65 crore. 2. Long Term Loan (interest free) 2.50 To be infused by Resolution Applicant's own funds. 3. Equity Contribution for Renovation Cost 5.00 ₹5.00 crores have been committed to be infused by Resolution Applicant. The net worth of owner of Tricounty Premier Hearing Services INC is ₹65 crore. 4. Unsecured Loan from NBFC 15.00 In principle sanction is available of ₹35.00 Crores from NBFC, Shanky Financial Service Private Limited. 5. Internal Accruals 25.52 After infusion of ₹11 crore as Resurrection Cost/Promoter's infusion. Total 67.02 10. The Resolution applicant has stated in the Plan that it has dealt with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NC ), the liquidation value of the Corporate Debtor is ₹53.06/- crores. The average liquidation value of both the reports amounts to ₹55.42/- crores. The Fair value of the assets of the Corporate Debtor is ₹73.64 crores. As compared to this, the amount offered in the Resolution Plan is ₹67.02/- crore apportioned to all the stakeholder which is more than the average Liquidation Value 14. The Resolution Applicant has entered into a MoU with Medium Healthcare Consulting Private Limited, a consulting firm whereby the whole responsibility of carrying out the business of the Corporate Debtor will be of Medium Healthcare Consulting Private Limited. 15. The Resolution Applicant has entered into a strategic tie-up, by way of an MoU dated 11.06.2018 with an Orissa based local diagnostic chain, M/s Geeta Diagnostic Center, which has agreed to infuse ₹9,00,00,000/- for 20% equity in the entire business of Odisha segment. 16. With regard to the eligibility under section 29A of IBC, the Resolution Applicant in the Resolution Plan has annexed a list of its connected persons as annexure 3. The RA has declared, as per section 30(1) of IBC, that neither the R.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also provides that, for the period from effective date to the appointment of monitoring agency, the RP shall supervise the plan. (e) Contravenes any of the provisions of the law for the time being in force? The Resolution Plan does not contravene with any of the provisions of the law for the time being in force. 18. The Resolution Plan was put to vote in the Eight CoC meeting and as per the section 30(4) the said plan was approved by 99.4758% of the CoC as per details below: No. Name of Creditor Voting Share (%) Voting for Resolution Plan 1. Axis Bank Limited 49.8931% Voted in favour of the Resolution Plan 2. Clix Finance India Unlimited (earlier known as GE Capital Services India) 0.7312% Voted in favour of the Resolution Plan 3. India Infoline Finance Limited 1.5720% Voted in favour of the Resolution Plan 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected. 24. The Plan further seeks immunity from any actions and penalties (of any nature) under any law for any non-compliance of laws in relation to the Company or by the Company, which was existing as on the date of acquisition of control by the Resolution Applicant over the Company and which continues for a period of upto 12 months after the acquisition of control by the Resolution Applicant over the Company. The said reliefs cannot be granted and are hereby rejected. 25. The Plan also seeks immunity for the RA and the Company from any actions and penalties (of any nature) under any law for any non-compliance of laws in relation to the Company or by the Company, which was existing as on the Completion Date and which continues for a period of upto 12 months after the acquisition of control by the RA over the Company. The said reliefs cannot be granted and are hereby rejected. 26. The above reliefs are with respect to future contingent actions that may be initiated against the Company. These liabilities are neither certain nor reasonably foreseeable. This, in our view, is a commercial risk that any Resolution Applicant has to take as per its own commercial wisdom. We d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be sought and allowed in the Resolution Plan. 32. The resolution plan has necessary provisions for its effective implementation. 33. It may be noted that the MA 649/2018 filed on 27.06.2018 by the RP seeking order for Liquidation of the Corporate Debtor was still pending before this Tribunal when in the meanwhile the above developments took place and was brought to the notice of this tribunal. Other two applications, MA 736/2018 and MA 737/2018 filed against the liquidation application are also pending which if allowed would result in rejection of application for Liquidation. Also considering the fact that the Resolution Professional, applicant in MA 649/2018 has filed another application being MA 1351/2018 seeking withdrawal of the Liquidation Application. We hereby exclude the period under Adjudication and allow this application as under the CIRP. 34. The resolution applicant shall obtain the necessary approval required under any law for the time being in force within a period of one year from the date of this order or within such period as provided for in such law, whichever is later. 35. In view of the above observations, we hereby approve the resolution plan w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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