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TMI Blog2024 (9) TMI 1613X X X X Extracts X X X X X X X X Extracts X X X X ..... rements. The instant Resolution Plan meets the requirements of Section 30(2) of the Code and the Regulations 37, 38, 38(1A) and 39(4) of the CIRP Regulations. The Resolution Plan is not in contravention of any of the provisions of Section 29A of the Code and is in accordance with law. The Application is allowed and the Resolution Plan submitted by Mr. Harry Dhaul is hereby approved. - REETA KOHLI MADHU SINHA AND HON BLE MEMBER (JUDICIAL) HON BLE MEMBER (TECHNICAL) For the SRA: Amir Arsiwala Adv., Ashwini Gawde and Adv., Nashra Siddiqui ASR Associates ORDER 1. The present Interlocutory Application is filed by Mr. Pankaj Srivastava, the Resolution Professional of M/s Global Energy Private Limited seeking approval of the Resolution Plan submitted by Mr. Harry Dhaul under Section 30(6) of the Insolvency and Bankruptcy Code, 2016 ( the Code ) read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulation ( the CIRP Regulations ). The Resolution Plan was duly approved by 100% of the Committee of Creditors (CoC) on 23.03.2023. 2. The Applicant submits that Mala Verma, the Operational Creditor initiated the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordance with Regulation 35 of the CIRP Regulations which is as follows: i. Land Building: Valuation by Mr. Jagtap Associates and GTech Valuers Pvt Ltd; ii. Plant Machinery: Valuation by Mr. H.S. Arun Kumar and GTech Valuers Pvt Ltd; iii. SFA: Valuation by Ms. Harshali Damle and GTech Valuers Pvt Ltd to ascertain the Fair Value and the Liquidation Value of the assets of the Corporate Debtor. The Fair Value and the Liquidation Value is detailed as under: - S.NO. ASSETS VERAGE FAIR VALUE AVERAGE LIQUIDATION VALUE 1. Land Building 3,34,36,266.50 2,64,84,411.50 2. Plant Machinery 2,02,84,350.50 1,39,84,200.00 3. Security Financial Assets 77,32,008.50 61,39,506.50 Total 6,14,52,625.00 4,65,08,118.00 Average Fair Value: Rs.6,14,52,625/- Average Liquidation Value: Rs. 4,65,01,118/- 6. The Applicant on 02.09.2022, made publication of Form-G, inviting Expression of Interest (EoI) in Financial Express (English- All Edition), Govan Vaarta (Marathi- Goa Edition), Business Standard (Hindi-Delhi Edition) and Lok Darshan (Kannada-Belagavi Edition) and the last date for submission of EoI was 17.09.2022. Subsequently, in the 5th CoC meeting dated 10.10.2022 the last date for submission of EoI was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bilateral contracts and through power exchanges and is also involved in trading of Renewal Energy Certificate. 15. Brief background of the Resolution Applicant: a. The Resolution Applicant is having over 36 years of experience in the field of power generation and power trading. The Resolution Applicant is the first retail electricity trader and started the activity in 1986. The same was started in the USA in California in 1991. b. The Resolution Applicant has been the founder and Director General of Independent Power Producers Association of India (IPPAI). He is qualified by virtue of his experience both in demand and supply of energy in the power sector in regulatory and policy issues. The Resolution Applicant was the first trader to trade renewable energy, particularly wind. 16. Salient features of the approved Resolution Plan: INR in Crores Sl. No Nature of Debt Claims Received Claims Admitted Resolution Applicant Proposal Proposed payment Amount Allocated % of total claim amount No of days 1 Secured Financial Creditors (unrelated)* 18.4464 18.4464 9.2232 50.00% Within 3 years of the of the Date of handover of the management of the CD 2 Unsecured Financial Creditors (Others) 2.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uires payment of IRPC in priority to the payment of other debts of the Corporate Debtor. iii. The total unpaid IRPC shall be fully paid, in priority. iv. The Resolution Professional has estimated unpaid IRPC of INR 0.60 crores as on December 31, 2022 and the Resolution applicant has made provision of unpaid IRPC of INR 0.80 Crores till approval of resolution plan by Hon ble NCLT. The aforesaid amount shall be paid within 180 days of the effective date. II. Payments to the Operational Creditors : i. The Resolution Applicant proposes to pay an amount of Rs. 24.7727/- cr. to the Operational Creditors. ii. The payment due to the Operational Creditors whether secured or unsecured, statutory, Governmental Authorities, trade creditors, should not be less than as prescribed under Section 30 payout to them i.e. not less than the amount payable to such Operational Creditors in the event of liquidation of the Corporate Debtor under Section 53 of the Code and the amount that would be have been paid to such Operational Creditors, if the amount to be distributed under the Resolution Plan is distributed in accordance with the order of priority in sub-section 1 of Section 53 which ever is higher. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the Workmen. ii. As per the Information Memorandum and information provided and verified by the Resolution Professional, the admitted claims of employees are INR 91,00,000 Indian Rupees Ninety-One Lakh Only) iii. The Resolution Applicant proposes payment of INR 18,20,000 (Indian Rupees Eighteen Lakh and Twenty Thousand Only) towards Employees claims (including amount of the gratuity, if any) within 360 days of handover of the management of the Corporate Debtor. iv. The amount due to the employees under the Resolution Plan shall be given priority in payment over financial creditors as per Regulation 38(1) of the CIRP Regulations. All amounts payable under sub-clause ii) above shall be paid by the resolution applicant into a separate account Within 360 days of the of the Date of handover of the management of the CD, all other past dues of the Workmen Employees of the Corporate Debtor shall stand discharged. VII. Earnest Money Deposit : As per clause F of the Request for Resolution Plan ( RFRP ) dated 27th September, 2022 revised on 27th October, 2022, the Resolution Applicant has transferred EMD amount of INR 50,00,000 (Rupees Fifty Lakh Only) in the Bank account of the Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d handover of the management of the corporate debtor T+ 180 days 6 Payment of/ operational creditors/ workmen/ dissenting financial creditors Within 260 days from handover of the management of the CD 7 Payment of assenting secured financial creditors/ assenting unsecured financial creditors Within 3 years from handover of the management of the CD, more particularly described at 6.3.4 8 Reconstitution of the Board of Directors, handing over of peaceful possession of assets, removal of all charge/ encumbrance on any of the assets of GEPL in all records, including but not limited to Companies Act, 2013/1956, revenue records including 7/12 or any kind of title documents as provided in Resolution Plan T+ 3 years and 6 months XII. Monitoring and Implementation : During the Interim Period, till all the payments are made, the Monitoring Agency shall constitute of one secured financial CoC member (with veto power), who have majority stake in the Corporate Debtor and have voted in favour of the Resolution Plan and one nominee (without any voting rights) of the Resolution Applicant, so as to be aware of the operations of the company. Provided however the CoC and the Resolution Applicant shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 21. On perusal of the Resolution Plan, it is observed that the Resolution Plan provides for the following: a. Payment of CIRP cost as specified under Section 30(2)(a) of the Code; b. Payment of debts of Operational Creditors as specified under Section 30(2)(b) of the Code; c. For the management of the affairs of the Corporate Debtor after approval of the Resolution Plan; and d. The implementation and supervision of the Resolution Plan by the RP and the CoC as specified under Section 30(2)(d) of the Code. 22. It is to be noted that IA 2332 of 2023 was filed by the Regional Provident Fund Commissioner-II, Regional Office, Delhi (Central) seeking direction against the Resolution Professional/Respondent to consider the claim of Rs.1,33,19,135/-. including the principal claim of Rs. 77,67,128/- and damages interest amounting Rs. 55,52,007/- of the Employees Provident Fund Organization. The said claim w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. The legislature, consciously, has not provided any other ground to challenge the commercial wisdom of the individual financial creditors or their collective decision before the Adjudicating Authority. 24. In CoC of Essar Steel India Limited vs. Satish Kumar Gupta and Ors (2020) 8 SCC 531 the Hon ble Apex Court clearly held that the Adjudicating Authority would not have the power to modify the Resolution Plan which the CoC in their commercial wisdom has approved. In para 42, the Hon ble Court observed as under: Thus, it is clear that the limited judicial review available which can in no circumstances 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, in so far as the Adjudicating Authority is concerned and section 32 read with section 61(3) of the Code, insofar as the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this order shall be subject to approval by the Authorities concerned. This Tribunal will not deter such authorities to deal with any of the issues arising after effecting the Resolution Plan. 30. The concession sought in relation to the stamp duty, taxes, registration charges, etc. for implementation of the approved Resolution Plan is not granted. However, the Resolution Applicant is at liberty to approach the competent authorities for the exemption, if permitted under the law. 31. The Resolution Applicant for renewal of various licenses and effective implementation of the Resolution Plan, shall obtain all necessary approvals under any law for the time being in force, within such period as may be prescribed. However, if any approval of the shareholder is required for extinguishment of existing shares of the Corporate Debtor, allotment of shares to the Resolution Applicant and reduction of share capital of Corporate Debtor under the Companies Act, 2013 or any other law for the time being in force for the implementation of actions under the Resolution Plan, such shareholders approval shall be deemed to have been given and it shall not be a contravention of that Act or law. The Memora ..... X X X X Extracts X X X X X X X X Extracts X X X X
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