9911796707
TMI Blog2022 (5) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... inash K. Srivastava , Member ( T ) For the Appellant : Mrinal Harshvardhan , Advocate For the Respondents : Party-in-Person and Vaibhav Dabas , Adv ORDER 1. The petition (IA-2946/2021) has been filed under Section 30(6) and 31 of the Insolvency Bankruptcy Code, 2016, (the Code) on behalf of the Resolution Professional (RP), seeking approval of the Resolution Plan as approved by COC. While (IA-4103/2021) is the objection to the Resolution Plan that has been filed by Operational Creditor i.e. M/s. RAJATMETAAL POLYCHEM PRIVATE LIMITED against the Applicant/RP under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 r/w Rule 11 of NCLT Rules. The Operational Creditor's claim is of Rs. 1,54,64,926/- out of which Rs. 93,00,564/- is the principal amount and remaining i.e. 61,00,000/- is the interest which is calculated on the basis of invoices raised. Therefore, Operational Creditor has filed this IA-4103/2021 against the rejection of the interest by RP. 2. As Both the IA's pertains to the Approval of Resolution Plan and Objection to the Resolution Plan, hence we are disposing both of them by common order of this Bench. 3. The facts mentioned in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Sole FC and an amount of Rs. 6,52,82,950/- is due to the Operational Creditors. Thereafter, CoC in its 4th Meeting held on 19.10.2020 approved the publication of Form G and pursuant to approval, invitation for Expression of Interest (Eol) was published in prescribed Form G as per Regulation 36A of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 on 21.10.2020 in newspapers. In response to invitation for Eol total of four applications were received. Out of those 4, only one of them had deposited the EMD of Rs. 1,00,000/-. The CoC in its 5th meeting resolved to call for fresh Eol with revised eligibility criteria. Copy of the revised Eol, Evaluation Matrix and RFRP is attached at Annexure- A8. On the publication of revised Eol on 02.12.2020, four applicants namely Sunrise Industries, K.L. Rathi Steels Ltd., ASC Consulting Pvt. Ltd. and Subhash Bhati Ashok Kumar Bhati had shown their interest by submitting their response and all the applicants had deposited EMD of Rs. 1,00,000/-. Out of those 4, only one Resolution Applicant (RA) viz. Mr. Subhash Bhati Ashok Kumar Bhati had submitted their Resolution plan. That the said RA belongs to Categor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor in accordance with Regulation 35 of CIRP Regulations 2016. The average value of all the assets in Plant Machinery (P M) and in Land and Building (L B) were considered to determine the Fair Value and Liquidation Value in accordance with Regulation 35 of CIRP Regulations 2016 which is as under:- Following is the payment plan as per the Resolution Plan: It is submitted that the entire payment plan to the Financial Creditor is as per the due diligence and valuation conducted by the Resolution Applicant in compliance with the Section 30(2) of the Insolvency And Bankruptcy Code, 2016 read with Regulation 38(1) of the CIRP Regulations. It is submitted that pursuant to the advertisement issued for the 2nd Eol, only one Resolution Applicant viz. Mr. Subhash Bhati Ashok Kumar Bhati submitted their resolution plan against the RFRP (Request for Resolution Plan) issued. It is submitted that Resolution Plan had undergone five iterations, and is in compliance of Section 30 of IBC, 2016 r/w regulation 37, 38 39 of CIRP Regulations, 2016. The Successful Resolution Applicant has submitted performance security deposit on 23.06.2021 for an amount of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o creditor will supply the goods or render services on credit to any corporate debtor which will affect the Indian economy. Hence, it is prayed by OC to reject the Resolution Plan being discriminatory in nature to the Operational Creditor. 6. We have heard the parties and perused the case records. Before the disposal of both the IAs, we find it pertinent to mention the relevant provisions of the Code. In view of Section 31 of the Code, the Adjudicating Authority, before approving the Resolution Plan, is required to examine that a Resolution Plan which is approved by the CoC under Section 30(4) of the Code meets the requirements as referred under Section 30(2) of the Code. Section 30(2) is quoted below:- 30(2). The resolution professional shall examine each Resolution Plan received by him to confirm that each Resolution Plan- (a) provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the payment of other debts of the corporate debtor; (b) provides for the payment of debts of operational creditors in such manner as may be specified by the Board which shall not be less than- (i) the amount to be paid to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o how it has dealt with the interests of all the stakeholders including Financial Creditors and the Operational Creditors and if these are sufficiently provided in the Resolution Plan, the Adjudicating Authority may approve the Resolution Plan. 8. In respect of compliance of Section 30(2)(a) of the Code, it is seen that there is a proposal in the Resolution Plan at page no. 134 that provides that the 100% CIRP cost will be paid. 9. As regards compliance of Clause (b) of Section 30(2) of the Code, which provides for the payment of the debts of operational creditors which shall not be less than the amount to be paid to the operational creditors in the event of a liquidation of the Corporate Debtor under Section 53. The Resolution plan has no provision for the payment to Operational Creditors (Clause VI (b) of the Resolution Plan) and it provides the entire payment plan to the Financial Creditor as per the due diligence and valuation conducted by the resolution applicant in compliance with the Section 30(2) of the IBC, 2016 read along with regulation 38(1) of the CIRP Regulations. 10. In terms of Section 30(2)(c), management of the affairs and control of the business of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmitted. Against this the Resolution plan which proposes to pay 100% CIRP cost i.e. Rs. 30,50,206/- and a payment of Rs. 2312.50 lakhs to the Sole Financial Creditor and above that Rs. 5 crore would be infused by the Resolution Applicant over a period of 4 years. On perusing the Resolution Plan, it seems that the Sole Resolution plan which was approved by CoC with 100% voting is in the best interest of the Corporate Debtor. The Resolution Plan submitted by Applicant/RP for approval is in accordance with the scheme of the IBC, 2016 i.e. maximization of the assets' value and revival of the Corporate Debtor. Time and again, Hon'ble Supreme Court in many landmark cases has held that Adjudicating Authority has a very limited role to play when the question comes for approval/rejection of Resolution Plan. Its only duty is to check whether the proposed Resolution plan has complied with the provisions of Sec. 30(2) of the Code and whether it has received the assent of CoC Members with 66% or more. It is the CoC wisdom which should prevail and Adjudicating Authority cannot interfere in the business decisions when there is no contravention of any of the provisions of the Code. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rusal of the documents for Resolution Plan Form H Compliance Certificate Annexure A-12, item 15 which provides the details of Sec. 66 or avoidance application pending, any preferential transaction u/s. 43, undervalued transaction u/s. 45, extortionate credit transactions u/s. 50, fraudulent transaction u/s. 66, the Resolution Professional has submitted that it is not applicable in this case. In case there are any avoidance transaction application u/s. 43, 47, 50 or 66 of the IBC, 2016 pending before the Adjudicating Authority and if the orders in favour of Applicant therein are passed, the same shall go to the benefit of the Financial Creditors and Operational Creditors as may be decided by CoC. 20. It is declared that the moratorium order passed by this Bench under Section 14 of the Code shall cease to have effect from the date of this order. 21. The Resolution Professional shall forward all records relating to the CIR Process and the Resolution Plan to IBBI to be recorded on its database in terms of Section 31(3)(b) of the Code. 22. The approved 'Resolution Plan' shall become effective from the date of passing of this order. The Approved Resolution Plan shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
