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TMI Blog2021 (5) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2013 and having its registered office address at A/B 1-802, A-Wing, 8th Floor, Marathon Innova, Marathon Nextgen Compound, Off Ghatkopar Kadam Marg, Lower Parel (W), Mumbai - 400013. (b) The Corporate Debtor is a Company registered under the provisions of the Companies Act 1956 carrying on its business under the Companies Act, 2013. (c) The Applicant submits that he was appointed as an Interim Resolution Professional on 09.06.2020 by this Tribunal. Thereafter the Committee of Creditors (CoC) was duly constituted within the stipulated time period and resolved to appoint the IRP as the Resolution Professional (RP) during its meeting dated 18.07.2020. (d) The Applicant states that the promoters by the letter dated 08.12.2020, made a settlement proposal which outlined the plan for the revival of operations of the Respondent and full payment to the lenders including principal, interest and all the expenses. (e) The Applicant further submits that this Tribunal granted an exclusion of time period of 135 days to complete the CIRP process and extended it to 18.04.2021. (f) The Applicant further submits that he was advised to delay the issue of Form G due to the lockdown imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Vipul Shah (member of suspended board of directors.) g) On 29.09.2020 and 30.09.2020 requests were received from members of CoC constituting 96.77% of voting share vide email for further Postponement of issue of invitation of expression of interest and the publication of Form G from 01.10.2020 to 15.10.2020 which was consented by majority of the members of the CoC constituting 96.86% of voting share. h) On 15.10.2020, 17.10.2020 and 21.10.2020 a request from members of CoC vide emails for further postponement of issue of invitation of expression of interest and the publication of Form G from 16.10.2020 to 24.10.2020 which was consented by the members of the CoC. i) On 05.11.2020, 07.11.2020 and 26.11.2020 a request from members of CoC vide emails for further postponement of issue of invitation of expression of interest and the publication of Form G from 28.11.2020 to 07.12.2020 which was consented by majority of the members of the CoC constituting 75.17% of voting share. j) On 14.01.2021 and 30.01.2021 requests were received from members of CoC vide emails for further postponement of issue of invitation of expression of interest and the publication of Form G from 15.01.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the suspended directors of the Corporate Debtor had arrived at a settlement, one of the suspended director namely Mr. Vipul Shah who had filed the Company Appeal, had withdrawn the same before the Hon'ble NCLAT and the same was noted in the Order of the Hon'ble NCLAT dated 17.02.2021. v. The RP has approached this Bench by filing an IA under Section 12 read with Section 60(5) of the Code for extension of time limit for completing the CIRP process. w. The RP had no intention at any time to disregard any of the provisions of thee Code nor the alleged lapse of not approaching the Hon'ble NCLT in its capacity as the Adjudicating Authority, to report regarding the decision taken by the CoC to postpone invitation of EOI and the publication of Form-G. x. The CoC in its wisdom decided that in view of the impending settlement, it will not be wise enough to publish the Form G prior to the settlement talks which was undertaken by and between the Financial Creditors and the suspended directors. The RP has taken all steps to inform the CoC that the above decision needs to be reconsidered. y. The action of not reporting to the Hon'ble Adjudicating Authority in a formal manner other th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to appropriate the sum of Rs. 4.50 Crores towards part satisfaction of the PNB outstanding. (iv) STATE BANK OF INDIA ("SBI") A sum of Rs. 4.50 Crores was deposited by the Promoters with SBI and SBI was entitled to appropriate the sum of Rs. 4.50 Crores towards part satisfaction of the SBI outstanding. 7. Pursuant thereto, the Lenders all having received their internal approvals consented to the Settlement Proposal. The PDPL Promoters and the Lenders hence entered into a Deed of Settlement dated 30th January 2021. To ensure the bonafide of the PDPL Promoters that they would implement the Deed of Settlement, the Lenders insisted on payment/deposit of amounts. Accordingly, in addition to the demand drafts deposited with STCI as mentioned above the deposits were also made in favour of the other 3 Lenders too as mentioned above. Some of the important clauses of the said Deed of Settlement are reproduced verbatim herein below for ease of references :- The above preamble/recital shall be considered as an essential part of the present Deed of Settlement. This Deed of Settlement shall become effective only upon : (1) approval by CoC with the requisite voting share as required unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hdrawal that may be passed under Section 12A and for a direction that the Resolution Professional Mr. Subhash Modi (or any other Insolvency Professional retakes charge of PDPL). It is clarified that any such default shall be taken as continuation of existing default of PDPL for the purposes of Section 10A of IBC, and as such, Section 10A of IBC will not be applicable for any such default. The Lenders or any of them may also file an application for initiation of contempt proceedings against any or all of PDPL and PDPL Promoters in such a case in addition to enforcement, filing or adopting any proceedings available to the Lenders including in the DRT under the DRT Act or under the provisions of the SARFAESI Act or under IBC. This clause is without prejudice to, and in addition to, any other remedies which the Lenders may have under law and equity against PDPL, PDPL Promoters, Individual Owners Guarantors, Proposed Purchaser/s, Alternative Purchaser/s and Buyers (collectively "Counterparties"), including any proceedings for seeking relief of specific performance, injunctive relief, and any civil and/or criminal proceedings form any breach or threatened breach of this Deed of Settlemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke a determination on preferential and other transactions (within 115 days of commencement), RP to file an application to AA for appropriate relief (within 135 days of commencement), submission of Information Memorandum to CoC (within 2 weeks of appointment of RP, but not later than 54th day of commencement), Publish Form G (within 75 days of commencement Invitation of EOI), Submission of EOI, Provisional List of RAs by RP, Final List of RAs by RP etc. however, COC had postponed on the pretext of settlement. NCLT had already granted an exclusion of 135 days and CIRP to be completed by 18.04.2021 9. From the settlement agreement, suspended directors will sell the assets of the Corporate Debtor which is under moratorium to settle the outstanding dues thereby they will be participating in the affairs of the company (indirectly) which is prohibited when the corporate debtor is under CIRP and moratorium is in existence. 10. The Applicant stated that the promoters by letter dated 08.12.2020, made a settlement proposal which outlined the plan for the revival of operations of the Respondent and full payment to the lenders including principal, interest and all the expenses. 11. PDPL Prom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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