2019 (9) TMI 894 - AT - Insolvency and Bankruptcy

Appeal allowed, Tribunal orders rectification of discrimination. Fair treatment for creditors mandated.

Hero Fincorp Ltd. Versus Rave Scans Pvt. Ltd. And Ors.

Hero Fincorp Ltd. Versus Rave Scans Pvt. Ltd. And Ors. - TMI Issues Involved:1. Discrimination against the Appellant (Hero Fincorp Limited) in the approved Resolution Plan.2. Compliance with Regulation 38 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.3. Applicability of amended Regulation 38 and Section 30(2)(b) of the Insolvency and Bankruptcy Code.4. Feasibility and legality of the approved Resolution Plan.Detailed Analysis:1. Discrimination Against the Appellant (Hero Fincorp Limited) in the Approved Resolution Plan:The Appellant, Hero Fincorp Limited, challenged the approved Resolution Plan on grounds of discrimination. It was argued that other Secured Financial Creditors were provided with a higher percentage of their claim amounts compared to Hero Fincorp Limited, which was allowed only 32.34% of its admitted claim. The Successful Resolution Applicant had provided different percentages to various creditors, such as Tata Capital Financial Services Ltd. (75.63%), Indian Overseas Bank (45%), Bank of Baroda (45%), and Punjab National Bank (45%). The Tribunal found that Hero Fincorp Limited, being a Secured Financial Creditor, was indeed discriminated against compared to other similarly situated Secured Financial Creditors.2. Compliance with Regulation 38 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016:The Tribunal examined the old Regulation 38, which mandated liquidation value for dissenting Financial Creditors. This regulation was previously held to be inconsistent with the Insolvency and Bankruptcy Code (I&B Code) and was amended on 5th October 2018. The Tribunal noted that the old Regulation 38 was discriminatory and had been repealed. The new Regulation 38 does not mandate liquidation value for dissenting Financial Creditors and emphasizes fair and equitable treatment of all stakeholders.3. Applicability of Amended Regulation 38 and Section 30(2)(b) of the Insolvency and Bankruptcy Code:The Tribunal referred to the amended Regulation 38 and Section 30(2)(b) of the I&B Code, which came into force on 16th August 2019. The amended regulation requires that the amount due to operational creditors under a resolution plan shall be given priority in payment over financial creditors. The Tribunal observed that the Successful Resolution Applicant failed to bring the amended Regulation 38 to the notice of the Adjudicating Authority, leading to the approval of a discriminatory Resolution Plan. The Tribunal emphasized that the new Regulation 38 and amended Section 30(2)(b) do not allow for differential treatment of dissenting Financial Creditors unless specified by the Board.4. Feasibility and Legality of the Approved Resolution Plan:The Tribunal found that the approved Resolution Plan did not conform to the requirements of Section 30(2)(e) of the I&B Code, as it discriminated against similarly situated Secured Financial Creditors. The Tribunal directed the Successful Resolution Applicant to remove the discrimination by providing Hero Fincorp Limited with 45% of its admitted claim, equating it with other similarly situated Secured Financial Creditors. The Tribunal allowed the Successful Resolution Applicant one month to comply with this directive, failing which the impugned order approving the Resolution Plan would be set aside.Conclusion:The appeal was allowed, and the Tribunal directed the Successful Resolution Applicant to rectify the discrimination against Hero Fincorp Limited by providing it with 45% of its admitted claim. The Tribunal emphasized the need for fair and equitable treatment of all similarly situated creditors in accordance with the amended Regulation 38 and Section 30(2)(b) of the I&B Code.