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TMI Blog2023 (5) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... ional plan and could not have been approved, does not furnish any ground to interfere with the impugned order, at this stage. NHAI approval was set out as a condition precedent to takeover the Corporate Debtor since it was provided in Clause 5.3.1 of the Concession Agreement. The law declared by the Hon ble Supreme Court in Ebix Singapore [ 2021 (9) TMI 672 - SUPREME COURT] made categorical that no Resolution Applicant can be allowed to withdraw their plan and in facts of the present case, Resolution Applicant has never come up with any case, application or request to withdraw from the Resolution Plan. Present is a case where Form G was issued and time to submit the plan was extended time to time. There were two Resolution Plans which were duly considered by the Committee of Creditors. The submission of the Appellant that mandatory requirements as prescribed under Regulation 38(3) of the Regulations, 2016 has not been satisfied since there are no reasons given regarding cause of default - submission of learned counsel for the Appellant that mandatory requirement under Regulation 38 is not fulfilled, is not correct and the plan gives causes of default, hence, the above mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an submitted by Respondent No.3 - Silver Point Luxembourg Platform S.A.R.L. was accepted by the CoC. CoC approved the Resolution Plan with 97.95% voting share in the CoC meeting dated 12.03.2021. vi. The Resolution Professional filed I.A. No. 1538 of 2021 for approval of the Resolution Plan which has been approved by the impugned order dated 10.05.2022. The Appellant, the erstwhile Promoter of the Corporate Debtor has filed this Appeal challenging the order dated 10.05.2022. 2. We have heard Shri Amit Saxena, learned Senior Counsel for the Appellant and Shri Arun Kathpalia, learned Senior Counsel for the Successful Resolution Applicant. Shri Ramji Srinivasan, learned Senior Counsel has appeared for the Committee of Creditors and Shri Krishnendu Datta, learned Senior Counsel appeared for Respondent No.1. 3. Learned counsel for the Appellant challenging the order of the Adjudicating Authority submits that the Adjudicating Authority committed error in approving the conditional Resolution Plan. It is submitted that objection was raise by the Appellant. The Resolution Plan being conditional could not have been approved. A conditional plan whose implementation can be withdrawn b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, this Appeal is nothing but an attempt to scuttle the resolution and revival of the Corporate Debtor. It is submitted that Resolution Plan has already been implemented, the Resolution Professional has demitted office and the Corporate Debtor is now under the management and control of the Successful Resolution Applicant. 5. We have considered the submissions of learned counsel for the parties and perused the record. 6. The principal submission which has been advanced by learned counsel for the Appellant is alleged conditionality of the plan. It is submitted that in view of the judgment of Hon ble Supreme Court in Ebix Singapore Pvt. Ltd. vs. Committee of Creditors of Educomp Solutions Ltd., (2022) 2 SCC 401 , no conditional plan can be approved. To appreciate the submission of learned counsel for the Appellant, it is necessary to notice the effective part of the Resolution Plan which is said to be conditional plan. The impugned order has referred to Para 2.1 Schedule 2 of the Resolution Plan. Schedule 2 contains the implementation provision and in the Schedule 2 Para 2 deals with Regulatory and other approvals and conditions precedent to the implementation of the Plan. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng security therein) of the Corporate Debtor pursuant to the restructuring of the Reconstituted Debt in accordance with Schedule 5 (Restructured Terms of the Reconstituted Debt); (c) continued effectiveness of the Concession Agreement (including unconditional revocation and irrevocable waiver of all past and existing defaults, penalties, among others, relating to the Corporate Debtor); and (d) execution of a Supplementary Agreement-2021 to the Concession Agreement on the terms and conditions as set out in Schedule 6 (Key Terms of the Supplementary Agreement 2021) hereto. 8. The various clauses under Clause 2 of Schedule 2 are clauses which are towards the implementation of the plan which is clear from the heading of the Schedule 2 itself. 9. Hon ble Supreme Court in the Ebix Singapore (supra), on which much reliance has been placed by learned counsel for the Appellant, in Para 167 has laid down following: 167. Regulation 38(3) mandates that a Resolution Plan be feasible, viable and implementable with specific timelines. A Resolution Plan whose implementation can be withdrawn at the behest of the successful Resolution Applicant, is inherently unviable, sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition which are contained to the effect that Resolution Applicant can seek suitable modification or withdraw plan are conditions which are unenforceable on account of law declared by the Hon ble Supreme Court in Ebix Singapore (Supra). The facts of the present case as detailed in the Reply filed by Respondent No.3 as well as Resolution Professional indicate that plan has been implemented and all necessary approvals including the approval by NHAI has been received for carrying out the plan. After implementation of the plan, we are of the view that the submissions of learned counsel for the Appellant that Resolution Plan was conditional plan and could not have been approved, does not furnish any ground to interfere with the impugned order, at this stage. NHAI approval was set out as a condition precedent to takeover the Corporate Debtor since it was provided in Clause 5.3.1 of the Concession Agreement, as noted above. The Corporate Debtor was set up as a special purpose company for operating this concession and it is necessary to ensure compliance of the Concession Agreement and get a clearance from NHAI before takeover. All such aspects were duly considered by the Committee o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied since there are no reasons given regarding cause of default. Regulation 38(3) provides as follows: 38(3) [A resolution plan shall demonstrate that (a) it addresses the cause of default; (b) it is feasible and viable; (c) it has provisions for its effective implementation; (d) it has provisions for approvals required and the timeline for the same; and (e) the resolution applicant has the capability to implement the resolution plan.] 15. Learned counsel for the Respondent has submitted that the Resolution Plan provides for reasons for default. In this context, Clause 10.3 of the Resolution Plan deals with Cause of default by the Corporate Debtor. Para 10.3 of the Resolution Plan is as follows: 10.3 Causes for default by the Corporate Debtor The defaults committed by the Corporate Debtor have, in the opinion of the Resolution Applicant, arisen on account of: (i) delays in construction due to: (a) the non-availability of right of way, (b) hindrances from locals to the Corporate Debtor, and (c) delay in permission from railways, which led to an increase in construction costs; (ii) delays/lapses in collection of Annuity payments ..... X X X X Extracts X X X X X X X X Extracts X X X X
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