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TMI Blog2021 (12) TMI 1355X X X X Extracts X X X X X X X X Extracts X X X X ..... utory obligations or seeking approvals from authorities is concerned, the Resolution Applicant is directed to do so within one year from the date of this order, as prescribed under section 31(4) of the Code - In case of non-compliance of this order or withdrawal of Resolution Plan, the payments already made by the Resolution Applicant shall be liable for forfeiture. The Resolution Plan is approved - application allowed. - IA (IB) No.802/KB/2021 in CP (IB) No.993/KB/2018 - - - Dated:- 14-12-2021 - Mr. Rajasekhar V.K., Member (Judicial) And Mr. Balraj Joshi, Member (Technical) For the Applicant/RP : Mr. Subodh Kumar Agarwal ORDER Per: Rajasekhar V.K., Member (Judicial) 1. Preliminary 1.1. This Court convened through videoconferencing. 1.2. IA (IB) No. 802/KB/2021 is an application filed by Mr. Subodh Kumar Agarwal, Resolution Professional of Ambient Computronics Private Limited [CIN: U31200BR1995PTC006868], under section 30(6) read with section 31(1) of the Insolvency and Bankruptcy Code, 2016 and regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2nd CoC Meeting 15.01.2021 3rd CoC Meeting 27.01.2021 4th CoC Meeting 10.02.2021 5th CoC Meeting 18.02.2021 6th CoC Meeting 04.03.2021 adjourned to 06.03.2021 and 08.03.2021 7th CoC Meeting 27.03.2021 8th CoC Meeting 10.04.2021 9th CoC Meeting 30.04.2021 10th CoC Meeting 17.05.2021 11th CoC Meeting 05.06.2021 adjourned to 12.06.2021 12th CoC Meeting 25.06.2021 13th CoC Meeting 21.08.2021 14th CoC Meeting 24.08.2021 and 25.08.2021 3. Collation of claims 3.1. The claims of operational creditors, workers, statutory authorities as existing as on the date of filing the present application is as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4.3. The Resolution Plan was placed and opened before the CoC in its 12th CoC meeting held on 25.06.2021. The liquidation value and fair value was informed to the CoC. The Resolution Plan was vetted by the RP in terms of the Request for Resolution Plan ( RFRP ) and the Code. 4.4. The RP sought queries from the Resolution Applicant and the revised Resolution plan was filed on 20.08.2021. 4.5. The Resolution Plan was discussed at the 13th CoC meeting held on 21.08.2021. The CoC negotiated with the Resolution Applicant. 4.6. The revised Resolution Plan dated 24.08.2021 was discussed in the 14th CoC meeting held on 24.08.2021 and 25.08.2021. The Resolution Plan dated 04.08.2021 which was modified on 20.08.2021 and 24.08.2021 was put for e-voting on 27.08.2021 to 28.08.2021. 4.7. The Resolution Plan dated 04.08.2021 which was modified on 20.08.2021 and 24.08.2021 was approved with 99.10% voting share by the members of CoC, Pages 104-105 of the I.A. 4.8. The RP sent a letter of Intent dated 28.08.2021 to the successful Resolution Applicant which was duly accepted by the successful Resolution Applicant on 30.08.2021, Pages 204-208 of the I.A. 4.9. The Successful Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor after approval of the Resolution Plan. Section VII at Pages 32-34 of the Resolution Plan. (d) Implementation and Supervision Section V at Pages 25-26 and Section X at Pages 43-45 of the Resolution Plan. (e) Plan does not contravene any of the provisions of the law for the time being in force. Section IV at Page 23 of the Resolution Plan. (f) Conforms to such other requirements as may be specified by the Board. Section IV at Page 23 of the Resolution Plan. II. Measures required for implementation of the Resolution Plan in terms of regulation 37 of CIRP Regulations: Particulars Relevant Page of the Revised Resolution Plan dealing aforesaid compliance with Regulation A resolution plan shall provide for the measures, as may be necessary, for insolvency resolution of the corporate debtor for maximisation of value of its assets, including but not limited to the following: - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in technology used by the corporate debtor; and Section III at Page 15 in the Resolution Plan. (Compliance Chart) (n) obtaining necessary approvals from the Central and State Governments and other authorities. Section XI at Page 47 of the Resolution Plan. III. Mandatory contents of Resolution Plan in terms of regulation 38 of CIRP Regulations: Ref to relevant reg. Requirement How Dealt with in the Plan 38(1) The amount due to the operational creditors under a resolution plan shall be given priority in payment over financial creditors. Not Applicable as there are no Financial Creditors. 38(1A) A resolution plan shall include a statement as to how it has dealt with the interests of all stakeholders, including financial creditors and operational creditors of the corporate debtor. Section IV at Page 23 of the Resolution Plan. 38(1B) A resolution plan shall include a statement givi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solvency Resolution Process Cost ----- ₹7,00,000/- 100 2. Financial Creditors Nil Nil ---- 3. Operational Creditors ₹46,18,270/- ₹46,18,270/- 100 Total ₹46,18,270/- ₹53,18,270/- ---- 7. Resolution Plan Snapshot 7.1. The summary of the financial proposal/payment under the Resolution Plan of Mr. Sujeet Kumar is tabulated hereunder: Particulars Amount Admissible Debt to be paid as CIRP costs. ₹7,00,000/- approximately shall be paid no later than 30 days from the date of approval of the Resolution Plan by the Adjudicating Authority. Admissible Debt to be paid to Operational Creditors ₹46,18,270/- being 100% of the total admitted claim. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The orders thereon are indicated against each: Sl. No. Ref to Clause Relief, concessions and approvals sought Orders thereon 1. Section IX (i) Given that the Resolution Applicant will acquire control of the affairs of the Corporate Debtor on the Effective Date, all Government and Statutory Authorities (as they are Operational Creditors) to waive any financial penalties, or any other financial liabilities and dues that may arise from any defaults or non-compliances by the Corporate Debtor prior to the Effective Date of Applicable Laws, including but not limited to the provisions of the Companies Act, 2013, Electricity Act 2003, Contract Labour (Regulation and Abolition) Act, 1970, all relevant and applicable labour laws, all relevant and applicable Direct and Indirect tax laws, the relevant stamp acts of the different States of India, relevant environmental laws and any other government instrumentality. Granted in terms of the Ghanashyam Mishra and Sons Pvt Ltd v Edelweiss Asset Reconstruction Company Ltd, 2021 SCC OnL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefits and privileges that have expired or lapsed, notwithstanding that they may have already lapsed or expired due to any breach, non-compliance or efflux of time, be deemed to continue without disruption, for the benefit of the Corporate Debtor, for a period of 12 (twelve) months from the Effective Date or such other period as required under Applicable Law u/s 31(4) of IBC, 2016. All actions should be consistent with the provisions of the Code. There cannot be automatic revival of any licence or consent or permit. The corporate debtor shall prefer appropriate applications before the authorities concerned who shall consider the same keeping the spirit of the IBC in view, which is to enable a fresh start for the corporate debtor. 4. Section IX (iv) Credit in respect of minimum alternate tax paid by the Corporate Debtor shall continue with the Corporate Debtor on a going concern basis and shall be available for the benefit of the Resolution Applicant or the Corporate Debtor, as the case may be. This is for the relevant tax authorities to consider. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section IX (vii) All contractual arrangements (except for any contracts that vest property rights in the Corporate Debtor) entered into by the Corporate Debtor with the Related Party of the Corporate Debtor, including (including any contracts of employment or consultancy with, and any benefits, fees, commissions, perquisites or profits in lieu of or in addition to any salary or wages or any policy of providing such benefits, fees, commissions, perquisites or profits extended by the Corporate Debtor) shall be deemed to be terminated on and from the NCLT Approval Date. Any claims or financial liabilities arising because of any termination of such contracts till the NCLT Approval Date shall be cancelled on the NCLT Approval Date and shall be permanently extinguished and written-off on the NCLT Approval Date. Granted. 8. Section IX (viii) The Resolution Applicant, or the Corporate Debtor shall not be liable to pay any Taxes (direct or indirect) whatsoever arising (directly or indirectly on such entity) as a result of the actions taken by the Corporate Debtor prior to the Insolve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or administrative proceedings shall be deemed to be extinguished and written-off. Granted, but only in so far as the Corporate Debtor is concerned. This shall not be extended to the promotors. 11. Section IX (xi) Any and all other claims, rights and entitlements of any Person, including any actual or potential Creditors of the Corporate Debtor (including but not limited to all Financial Creditors, Operational Creditors, Other Creditors, and Government and Statutory Authorities and any person who may claim to be a creditor by way of exercise of rights under Applicable Laws or equity), whether or not such claims rights or entitlements (including any demand for any losses or damages, principal, interest, compound interest, penal interest, liquidated damages, and other charges already accrued/accruing or in connection with any third party claims) have been filed before the Resolution Professional or not, whether admitted by the Resolution Professional or not, whether or not set out in the . Information Memorandum, the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any environmental clearance issued by any Government and Statutory Authority. Whatever protection is envisaged under section 32A of the Code alone is granted, nothing more and nothing less. 15. Section IX (xv) All Disputes to be initiated against the Corporate Debtor (including those proceedings that relate to the Corporate Debtor) at any time till the Effective Date shall stand automatically abated, revoked, released, cancelled, withdrawn, dismissed and deemed null and void (as the case may be) and all financial obligations in relation to such Dispute shall be permanently extinguished on the NCLT Approval Date, after payments being made to any such Creditors if mandatorily required in accordance with the provisions of the Code. Granted in terms of the Ghanashyam Mishra and Sons Pvt Ltd v Edelweiss Asset Reconstruction Company Ltd, 2021 SCC OnLine SC 313 decided on 13.04.2021 wherein the Hon'ble Supreme Court has held in para 95(i) that once a resolution plan is duly approved by the Adjudicating Authority under sub-section (1) of section 31, the claims as provided in the resolution plan sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranting time to comply with the statutory obligations or seeking approvals from authorities is concerned, the Resolution Applicant is directed to do so within one year from the date of this order, as prescribed under section 31(4) of the Code. 9.4. In case of non-compliance of this order or withdrawal of Resolution Plan, the payments already made by the Resolution Applicant shall be liable for forfeiture. 9.5. Subject to the observations made in this Order, the Resolution Plan dated 04.06.2021, further modified on 20.08.2021 and on 24.08.2021, is hereby APPROVED by this Bench. The Resolution Plan shall form part of this Order. 9.6. The Resolution Plan thus approved shall be binding on the Corporate Debtor and other stakeholders involved so that revival of the Debtor Company shall come into force with immediate effect. 9.7. The Moratorium imposed under section 14 of the Code shall cease to have effect from the date of this order. 9.8. The Resolution Professional shall submit copies of the records collected during the commencement of the proceedings to the Insolvency Bankruptcy Board of India for their record and also return to the Resolution Applicant or New Promote ..... X X X X Extracts X X X X X X X X Extracts X X X X
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