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TMI Blog2022 (4) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Applicant, who fulfil the criteria laid down by the RP with the approval of the CoC and as per Section 30(1) of IBC, 2016 the Resolution Applicant is required to submit an affidavit that he is eligible under Section 29A of IBC, 2016 along with Resolution Plan. Further Regulation 36A of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 states that the RP shall specify the criteria for the prospective Resolution Applicant as approved by the CoC in accordance with clause of Section 25(2)(h) of IBC, 2016. Thus, it is seen that as per Regulation 36A(9) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the RP is at liberty to seek any additional clarification or additional information or document from the prospective Resolution Applicants for conducting due diligence under Sub - Regulation 8 of Regulation 36A in relation to provisions of clause (h) of sub-section (2) of 25 and provisions of Section 29A of the Code and other requirements as specified in the Invitation for Expression of Interest and the Resolution Applicant is duty bound to provide such information as sought by the RP - Thus, it is required to be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on the ongoing voting process of the Resolution Plan which had commenced on 17.05.2021 and which is scheduled to end on 24.05.2021 in order to facilitate the negotiations between the instant Applicant I RA and the CoC such that the Applicant's/RA Resolution Plan is also given a fair chance; or ii) Keep in abeyance any hearing and decision on any application filed by the RP under 30(6) for approval of resolution plan until the pendency of this Application; iii) To pass any other relief as may deem fit and proper by the Hon'ble Tribunal. 3. The Learned Counsel for the Applicant submitted that the Corporate Insolvency Resolution Process in respect of the Corporate Debtor viz. Bhatia Coke and Energy Limited was initiated by this Tribunal vide order dated 22.05.2019. The 1st Respondent herein was appointed as the Resolution Professional in respect of the Corporate Debtor on 30.12.2019. It was submitted that the Resolution Professional issued invitation for Expression of Interest on 15.01.2020 calling for prospective Resolution Applicants and that the Applicant herein being interested in taking over the Corporate Debtor as a going concern submitted its Expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CoC meeting was held and the Applicant wrote a mail to the RP requesting to ascertain if the settled process was that the opening of plans would have to be in the presence of the CoC and thereafter the RP is required to evaluate the Resolution Plan and submit the same to the CoC. In response to the same, it was submitted that the RP vide email dated 24.09.2020 stated that there is no settled process for presenting the plans to the CoC and that if the Applicant herein does not provide the passwords for the plan, the said plan would be rejected. However, the Applicant had thereafter immediately shared the password. 8. The Learned Counsel for the Applicant submitted that with regard to the Resolution Plan submitted by the Applicant, the RP responded vide email dated 27.09.2020 stating that the members of the CoC have requested the Applicant to increase the plan amount, also to reduce the payment timeline and further directed the Applicant to provide a declaration under Section 29A of IBC, 2016. It was submitted that in consonance with the said request of the CoC members, the Applicant herein vide email dated 30.09.2020 suitably altered the modalities of the Resolution Plan and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Resources LLP on the ground that the said Company is a related party and therefore the transaction debars the Applicant herein to provide the Resolution Plan for the Corporate Debtor. In this regard, it was submitted that to the best knowledge of the applicant neither the directors nor the promoters of M/s. Green Gold Global Resources LLP and that of the Corporate Debtor are same. 13. The Learned Counsel for the Applicant submitted that there is absolutely no bar for the applicant to provide the Resolution Plan in respect of the Corporate Debtor as the applicant is not in violation of any of the provisions of the IBC, 2016. Further, it was submitted that the aforementioned purported Related party is not a joint applicant/investor in the impugned Resolution Plan and it was submitted that when the applicant herein is not related party the RP has been seeking numerous affidavits to get confirmation that the Corporate Debtor and its promoters are not making a back door entry. In this regard, it was submitted by the Learned Counsel for the Applicant that the RP has tried his best to create an adverse impression on the credentials/standing of the Applicant and its Resolution Plan, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is as follows; The Non Compliance has been shared with CoC. By this Trick you are trying to stall the Resolution Plan at the instance of Ex-promoters Bhatia. Besides you are not H1 17. The Learned Counsel for the Applicant submitted that the above said response of the RP is untenable and unsustainable as the Resolution Plan submitted by the Applicant has no association with the erstwhile promoters and management of the Corporate Debtor and therefore there is no question of playing any kind of trick to stall the CIRP of the Corporate Debtor. It was submitted that the RP is the one, who for the reasons best known to him has been creating multiple obstacles and hurdles in the path of the Applicant, who wishes to have the Resolution Plan submitted before the CoC and have the same deliberated and appropriately decided upon by them. 18. The Learned Counsel for the Applicant submitted that they gave the initial Resolution Plan on 13.03.2020 and thereafter the final Resolution Plan on 22.09.2020 and finally resubmitted on 29.12.2020 and that the Applicant has been dealing only with the RP with issues of no importance and has not been successful in discussing the vit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v on Record Supreme Court of India) 3. RBI Circular which disqualify the ARC and RARE ARC sell confession in Jeypore Sugars Limited case. 4. Judgments of Hon'ble Supreme Court in Anurag Jagatram in connection with Section 29A ineligibility. Also the Hon'ble Supreme Court has asked the provision of 29A has to be looked upon the principles of See Though 5. Fraudulent diversion of funds report confirmed by the forensic audit experts and the matter pending before Hon'ble NCLT. 6. Transaction with gold green which clearly establishes the disqualification. 7. The other RA may use this as a shield and take the dispute to a prolonged litigation which may adversely affect the assets of the CD and greater interest of stakeholders. A discussion then took place among the members and the RP, after which the Members were of the unanimous opinion that the Resolution Plan of RARE ARC as presented by RP was non-compliant and the members would consider only Plans that are compliance with the code, regulations and offer document they decided that the plan of RARE ARC need not be discussed. They also asked RP to certify the plan that is compliant and table i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urces Pvt. Ltd. d. Avani Resources Pte. Ltd. In the 11th CoC meeting dated 19.11.2020, while the erstwhile promoters were presenting their proposal to the members, they stated that their investor was Avani Resources Pte Ltd., which is a part of the same group company as Aqua Terra, who is the proposed investor of Rare ARC. It is inferred that both the ex-directors and promoters and Rare ARC are proposing the same investor as their source of fund. Hence there may be conflict of interest in the participation of Rare ARC through Aqua Terra Logistics Pvt. Ltd. 4. As per clause (h), the Resolution Applicant makes any misrepresentation. Rare ARC vide their email dated 24.11.2020 stated that their sponsor investor would be Mr. P.K. Jain, a NRI based in Singapore and his company. However, in the plan submitted on 29.12.2020, they changed their sponsor investor to M/s. Aqua Terra Logistics Pvt. Ltd. The 29A dues diligence for both the proposed investors have not been submitted till date by Rare ARC. 22. Thus, it was submitted that the RP was right in rejecting the Resolution Plan in respect of the Applicant. 23. Heard the submissions made by the Learned Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reunder; 36A. Invitation for expression of interest. (8) The resolution professional shall conduct due diligence based on the material on record in order to satisfy that the prospective resolution applicant complies with (a) the provisions of clause (h) of sub-section (2) of section 25; (b) the applicable provisions of section 29A, and (c) other requirements, as specified in the invitation for expression of interest. (9) The resolution professional may seek any clarification or additional information or document from the prospective resolution applicant for conducting due diligence under sub-regulation (8). 27. Thus, it is seen that as per Regulation 36A(9) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the RP is at liberty to seek any additional clarification or additional information or document from the prospective Resolution Applicants for conducting due diligence under Sub - Regulation 8 of Regulation 36A in relation to provisions of clause (h) of sub-section (2) of 25 and provisions of Section 29A of the Code and other requirements as specified in the Invitation for Expression of Interest and the Resolutio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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