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TMI Blog2022 (6) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... ity) with M/s Equilibrated Venture CFLOW Private Limited (55% equity) in view of being exempt under the provisions of clause (c) and (h) of Section 29A read with Section 240A of the Code. The Plan was duly approved by the requisite majority of the Committee of Creditors (CoC). 2. The Applicant submits that the Hallmark Metals Private Limited, the Operational Creditor initiated the Corporate Insolvency Resolution process (CIRP) against the Corporate Debtor under Section 9 of the Code commenced on 04.10.2018 and appointed Mr. Hansraj Chandanlal Ahuja as the Interim Resolution Professional (IRP) of the Corporate Debtor. The Public announcement regarding the initiation of CIRP was made on 11.10.2018. 3. The first CoC meeting was convened on 14.11.2018. The second CoC meeting was held on 30.11.2018 wherein the name of the Applicant was proposed for the appointment of the Resolution Professional (RP) and the same was put to vote. Consequently, the CoC approved the name of the Applicant as RP and vide Order dated 10.01.2019 passed by this Tribunal the Applicant was appointed as the RP. 4. Thereafter, the CoC in its 4th CoC meeting held on 08.02.2019, resolved to extend the period of CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed short time to Adsum to file its Resolution Plan along with PBG on or before 15.01.2020. The Applicant states that despite giving multiple opportunities, neither Adsum or PVH filed the necessary documents before the CoC to consider their Resolution Plan. 9. Thereafter, Mr. Rakesh Ranjan approached the Tribunal seeking an Order from the Tribunal directing the CoC to consider his Resolution Plan. Hence this Tribunal vide an Order dated 04.11.2020 held that there is an possibility of revival of the Corporate Debtor Company rather than liquidation and granted time to the Applicant to conduct a CoC meeting to submit revise Plan for consideration. In the 11th CoC meeting held on 12.11.2020, the Resolution Plan submitted by the Resolution Applicant was discussed and the Applicant shared the preliminary compliance report on the initial Resolution Plan submitted by the Resolution Applicant. Upon discussing the Plan, the Applicant informed the Resolution Applicant to incorporate the proposed commercial elements and submit the final Resolution Plan in order for the CoC to vote. 10. Further, in the 12th CoC meeting, the Applicant recorded the legal compliance report on the final Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight to vote under sub- section (2) of section 21 228 228 (b) Other than (a) 5,141 4,371 above: (i) Who did not vote in favour of the resolution Plan No separate figure provided in the plan except clause mentioned in the plan i.e. Amount equivalent to proportionate liquidation value, in instalments, to the financial creditors in the manner as specified under section 53(10, who have a right to vote under sub-section (2) of section 21 and did not vote in favour of the Resolution Plan, shall be paid in priority over financial creditors who voted in favour of the plan, within the period of the plan (ii) Who voted in favour of the resolution plan No separate figure provided in the plan Total [(a)+(b)] 5,369 4,599 323 7% 3. Operational Creditors (a) Related Party of Corporate Debtor 0 0 0 (b) Other than (a) above: (i) Government 3,281 3,281 (ii) Non-Govt. OC 1,260 916 Total[(a)+(b)] 4,541 4,198 80 2% 4. Employees & workmen (a) Workmen 0 0 0 (b) Employees 104 88 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as provided a compliance certificate in "FORM H" as mandated under the Code for seeking approval of the Resolution Plan from this Hon'ble Bench. OBSERVATIONS OF THE ADJUDICATING AUTHORITY 19. We have heard the Applicant and perused the Resolution Plan and related documents submitted along with Application. 20. It is seen that the Resolution Applicant has given an Undertaken with respect to Bank Guarantee of Rs. 1,00,00,000/- in favour of SBI. Further, an additional Bank Guarantee of Rs. 50,00,000/- will be infused over and above the Bank Guarantee during the period of 180 days after the receipt of the Order of approving the Resolution Plan and the said additional Bank Guarantee can be adjusted in the next payment due under the Resolution Plan. 21. The Investor will infuse Rs. 10.89 Crores in the Corporate Debtor. Out of aforesaid amount, an amount of Rs. 55 Lakhs would be introduced in form of equity share capital within 30 days of the Effective date to hold 55% stake in the Corporate Debtor and balance amount brought in from of unsecured loans shall be utilized towards payment to creditors and stakeholders. 22. The Investor shall infuse Rs. 45 Lakhs in the form of equity sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firms to such other requirements as may be specified by the Board. 25. Section 30 (4) of the Code reads as follows: "(4) The committee of creditors may approve a resolution plan by a vote of not less than sixty-six percent. of voting share of the financial creditors, after considering its feasibility and viability, the manner of distribution proposed, which may take into account the order of priority amongst creditors as laid down in sub-section (1) of section 53, including the priority and value of the security interest of a secured creditor and such other requirements as may be specified by the Board. 26. Section 30(6) of the Code enjoins the Resolution Professional to submit the Resolution Plan as approved by the CoC to the Adjudicating Authority. Section 31 of the Code deals with the approval of the Resolution Plan by the Authority, if it is satisfied that the Resolution Plan as approved by the CoC under section 30(4) meets the requirements provided under section 30(2) of the Code. Thus, it is the duty of the Adjudicating Authority to satisfy itself that the Resolution Plan as approved by the CoC meets the above requirements. 27. On perusal of the Resolution Plan, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Adjudicating Authority is circumscribed by Section 31 and is limited to scrutiny of the Resolution Plan "as approved" by the requisite percent of voting share of financial creditors. Even in that enquiry, the grounds on which the Adjudicating Authority can reject the Resolution Plan is in reference to matters specified in Section 30(2) when the Resolution Plan does not conform to the stated requirements. 34. In CoC of Essar Steel (Civil Appeal No. 8766-67 of 2019 decided on 15.11.2019) the Hon'ble Apex Court clearly laid down that the Adjudicating Authority would not have power to modify the Resolution Plan which the CoC in their commercial wisdom have approved. In para 42 Hon'ble Court observed as under: "Thus, it is clear that the limited judicial review available, which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors, has to be within the four corners of section 30(2) of the Code, insofar as the Adjudicating Authority is concerned, and section 32 read with section 61(3) of the Code, insofar as the Appellate Tribunal is concerned, the parameters of such review having been clearly laid down in K. Sashidhar (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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