TaxTMI 
TaxTMI 
TaxTMI 
2018 (5) TMI 1556
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.... 'RP') under Sections 30 & 31 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') with a principal prayer of accepting the resolution plan approved by the Committee of Creditors (for brevity 'CoC') submitted by HI Resolution Applicant. The resolution plan has been filed by TATA Steel Limited (for brevity TSL') in the Corporate Insolvency Resolution Process (for brevity (CIR Process') of the Corporate Debtor. A further relief has also been sought to grant various concessions as envisaged in the resolution plan and approved by the CoC. These concessions have been duly extracted in Annexure-8. (ii) C.A. No. 186(PB)/2018 filed by Larsen & Toubro Limited with a prayer that the applicant therein shall be treated as secured creditor as against their assigned status of unsecured/operational creditor. (iii) C.A. No. 217(PB)/2018 filed by the Bhushan Employees seeking direction to the RP to decide the objection raised by them and; (iv) C.A. No. 176(PB)/2018 filed by RP under Section 19(2) of the Code. 2. Brief facts of the case necessary for disposal of the controversy raised in the present proceeding may first be noticed. The State Bank of India filed C.P. No. (IB)-2....
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....air and transparent system of evaluation and also to ensure that the best resolution plan for the Corporate Debtor is selected in the most transparent manner. The CoC at its 4th meeting held on 27.11.2017 appointed KPMG India Private Limited ('KPMG') as the evaluator of the resolution plans ('CoC Evaluator') and Shardul Amarchand Mangaldas & Co. as its legal counsel ('CoC Legal Advisor'). A process document dated 27.12.2017 amended and clarified from time to time for submission of resolution plans for the Corporate Debtor was issued to the prospective resolution applicants by the RP on behalf of the CoC. 5. In the 6th meeting held on 15.12.2017 the CoC decided to seek extension of time beyond the period of 180 days for the CIR Process to facilitate interested resolution applicants to submit their resolution plans in respect of the Corporate Debtor. The aforesaid resolution was voted and carried by 99.17% e-voting (by voting share) held on 18.12.2017 and 19.12.2017. Accordingly, we had granted extension vide order dated 21.12.2017 (Annexure-4). 6. The RP had received three resolution plans as on 03.02.2018 which was the final deadline fixed. It is appropriate to mention that the i....
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....e CoC approved resolution plan (Annexure-8). 8. The RP states that from the date of the approval of the Resolution Plan by this Tribunal, this would be regarded as effective date and until the date on which all the steps for the implementation set out in Annexure 5 would be completed (closing date). The plan envisaged inter alia the following: "(a), that the RP, along with certain representatives of Deloitte Touche Tohmatsu India LLP shall be appointed by this Honble Tribunal as the monitoring agency for the Corporate Debtor ("Monitoring Agency"). The Monitoring Agency shall have the same functions, powers and protections as ascribed to the RP under the Code. The CoC shall continue with its roles and responsibilities, and have protections, as set out in the Code including approving the matters as are being approved during the period prior to the Effective Date. The powers of the board of directors of the Corporate Debtor shall remain suspended until the Closing Date, and shall be exercised by the Monitoring Agency; and (b) the Corporate Debtor and all its facilities shall continue to receive supply of essential supplies, goods and services (as defined in the Code and regulations....
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....clarifications, legal opinions and the legal advice independently obtained by the RP he has reached the conclusion that HI Resolution Applicant-TSL and JSW Living Private Limited were not ineligible under Section 29A of the Code on the grounds put forward by the Bhushan Employees. It was only after fully satisfying itself, the CoC reached the conclusion that no ground to disqualify the Resolution Applicant were made out in the objections raised by Bhushan Employees and JSW Living Private Limited. The decision of the CoC has been intimated to the authorized representative of Bhushan Employees and a copy of the order dated 09.03.2018 has been placed on record (Annexure-13). It is in the aforesaid facts and circumstances that the RP has made the prayer recorded in the opening para of this order. 11. Replies to the application have been filed by Bhushan Energy Limited, Bhushan Employees and TSL. Reply by Bhushan Energy Limited 12. In the reply filed by the Bhushan Energy Limited which itself is under CIR Process it has been submitted that the resolution plan adversely effect the rights of BEL which arise under the power purchase agreements dated 29.03.2007 as amended on 30.06.2014 a....
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....rate Debtor at the cost of generation or INR 2.50 per KwH, whichever is higher. In terms of Clause 3(i) of the PPA-2, the power is to be supplied to the Corporate Debtor at grid rate or INR 3.35 per KwH, whichever is earlier. iv. Clause 3(i) expressly states that the lenders of BEL have agreed to provide funds to BEL for implementation and operation of the CPP on the basis of the PPAs. Further, the Corporate Debtor is contractually bound to make good any shortfall on the part of BEL in meeting its obligations to its lenders on account of the above rate(s). v. Clause 3(i) of the PPAs, the Corporate Debtor is contractually bound to make minimum payment to BEL towards supply of power under the PPAs that will be sufficient for BEL to meet its expenses, taxes and debt-service obligations to the lenders. Such minimum payments are to be adjusted by the Corporate Debtor against future payments to be made to BEL." 14. On account of financial stringency and to meet lenders' obligations BEL sought to revise its price for supply of power from 01.04,2017 and it sent a letter dated 06.06.2017 to the Corporate Debtor (Annexure R-1). However, a petition under Section 7 of the Code thereafter ....
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....piry of three months of the closing date on the completion of CIR Process of BEL. According to further averments such a clause in the resolution plan is illegal and unenforceable. Reference has been to the provisions of Section 30 of the Code and Regulations 37 and 38 of the CIRP Regulations which set out the contours within which a resolution plan may be approved and given effect to. There is no power with the RP or CoC to annul contractual arrangements entered into by the Corporate Debtor with a 'related party. According to BEL it is different matter that provision has been made to avoidance of transaction which might be qualified as either 'preferential transactions' under Section 43 of the Code or 'under value transactions' under Section 45 of the Code. The contractual rights are recognized and protected under Article 300A of the Constitution and cannot be abrogated, superseded or taken away without due process of law. The claim has been unfairly rejected by the RP without clue consideration without even acknowledging the claim which was filed on 20.03.2018. Reliance has also been placed on Regulation 37 of the CIRP Regulations and prayer has been made that the RP of Corporate ....
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....he documents have not been supplied. 18. There are further allegations of misrepresentation of facts and reference has been made to the averments made in para 23 of the application and order dated 19.03.2018 has been deliberately misquoted. Likewise, objection has been raised that there is no compliance of order dated 21.12.2017 and 19.03.2018 passed by this Tribunal. In the order dated 21.12.2017 we have directed the RP to bring to the notice of the CoC about the latest developments which have emerged from the issuance of ordinance on 23.11.2017. As the ordinance requires fulfilment of additional conditions it has to be taken into account during the progress of the CIR Process (Annexure R-2). 19. The stand taken in the reply is that examination of the resolution plan involves a serious public interest, as most of the members of the CoC belong to Public Sector Undertakings and fall within the purview of State as defined under Article 12 of the Constitution. Therefore, the proceedings before the Tribunal has to be regarded as adversarial in nature. However, it has been stated that Bhushan Employees are in the favour of the rehabilitation of the company as it is in their own intere....
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....nd TSL being a related party would attract disqualification of TSL. In terms of schedule under Regulation 7(2)(g) of the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016, the Resolution Professional must ensure that he maintains contemporaneous records for any decision taken, the reasons for taking the decision, and the information and evidence in support of such decision. The decision taken by the RP pertaining to the eligibility of the resolution applicants patently violated the Code of Conduct by which the RP is bound. The decision of the RP/CoC is also liable to be set aside being premeditated. According to RP if the decision on the eligibility under Section 29-A of the Code was to be taken by the CoC in the meeting held on 20.3.2018 then how TSL was declared as compliant HI Resolution Applicant in the CoC meeting held on 06.03.2018. The relief sought in the form of Annexure-8 can also not be granted. 22. According to the averments made the principles of natural justice stand violated. The objections have not been considered with the seriousness it deserves. It was not an empty formality and from the Minutes of Meeting dated 20.03.2018 what....
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....ecord in a separate sealed cover. All other averments are the repetition of what the RP has stated in the application. Reply of Resolution Applicant-TSL 26. Reply to the objections raised by Bhushan Employees has also been filed Resolution Applicant-TSL. It has been urged that Bhushan Employees have no locus standi to challenge the decision taken by the CoC with respect to the eligibility of the Resolution Applicant as a successful bidder. The Bhushan Employees has not challenged the decision of the RP rejecting its resolution plan on the ground that Bhushan Employees failed to disclose its source of fund despite repeated clarifications sought. 27. It has also been submitted that the resolution plan submitted by Resolution Applicant-TSL contemplates that all employees on the roll of the BSL-Corporate Debtor would continue to be employed with the Corporate Debtor w.e.f. the date of transfer of the management/control of the Corporate Debtor to the Resolution Applicant, The interest of the employees of the Corporate Debtor have been taken care of and there is no conflict of interest at any stage. The dues of the employees are paid off although liquidation value as computed by the v....
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....or to the commencement of the CIR Process. The status of the L&T is clearly that of a supplier of goods and services and it would fall in the category of Operational Creditor of the Corporate Debtor. By no stretch of imagination, it could be regarded as a secured creditor which is patently against the provisions of the Code and invocation of Section 55(4)(b) of the Transfer of Property Act is wholly misuse of the process which has no relationship with the issue arising for consideration. Even the claim made by the L&T in its quantum and nature has been disputed. In the parawise comments similar reply has been tendered by the RP, The RP has also filed lists of documents. 31. The L&T has reiterated its assertions by filing a rejoinder. Submissions made by Shri Ravi Kadam, Learned Senior Advocate and Mr. Tushar Mehta, Learned Senior Advocate on behalf of RP and CoC. 32. Opening the arguments on behalf of the RP & CoC, Mr. Kadam & Mr. Mehta learned Senior counsel respectively have highlighted various steps taken by Mr. Vijay Kumar V. Iyer as an IRP/RP which culminated into an approval of resolution plan by CoC submitted by TSL as a highest scoring resolution applicant (HI resolutio....
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....ores in respect of the Financial Debt owed to the Financial Creditors and admitted by the RP. In addition, the HI Resolution Applicant has also provided for the following equity to the Financial Creditors in respect of the Financial Debt admitted by the RP, as a consequence of which, the Financial Creditors shall hold 12.27% (in the event that the erstwhile promoter group shareholding is not counted towards promoter shareholding for the purposes of SEB1 (Listing Obligations and Disclosure Requirements) Regulations, 2015 or 13.43% of the equity shares of the Corporate Debtor (in the event that SEBI does not allow the erstwhile existing promoter group shareholding to be counted towards public shareholding. The claims of the Operational Creditors admitted by RP is approximately Rs. 1,332 crores and the Resolution Applicant has offered to pay Rs. 1,200 crores to the Operational Creditors (other than Employees, Workmen and Related Parties) over a period of one year post completion of transaction. The liquidation value entitlement of the Operational Creditors as per the provisions of Section 30(2)(b) of the Code is nil. It has further been pointed out that Rs. 200 crore is to be paid to ....
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....he resolution plan meet all the requirements of the Code and the CIRP Regulations. 38. Mr. Kadam & Mr. Mehta, learned Senior counsel have then replied the objections raised by Bhushan Employees in their application No. 237(PB)/2018 and also in reply to the RP's application C.A. No. 244(PB)/2018. It has been submitted that the application and objections are not maintainable and it is a mala fide obstruction to derail the time sensitive CIR Process of the Corporate Debtor which is nearing imminent fruition. Learned counsel highlighted that the objections have been signed by one Mr. Rahul Sengupta alone. The objections raised by the Bhushan Employees vide its email dated 23.02.2018 do not contain any power of attorney/letter of authority/vakalatnama authorizing Mr. Sengupta to file any such application and objections on behalf of unnamed 352 employees of the Corporate Debtor. Therefore, the application is severely defective and is liable to be dismissed in limine. C.A. No. 217(PB)/2018 filed by Bhushan Employees is without any vakalatnama and an attempt was made to provide a separate PDF file along with purported resolution plan of the Bhushan Employees in a pen drive. In para 4(d) o....
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....osed of vide order dated 19.03.2018 with direction to the RP to consider the objections of the Bhushan Employees in accordance with the law and the CoC in its 10th meeting held on 20.03.2018 thoroughly deliberated upon the objections on the eligibility of the two resolution applicants and it concluded that there were no grounds to disqualify either of the two Resolution Applicants on the basis of the objections raised by the Bhushan Employees. Accordingly, the RP provided an update to the Bhushan Employees vide his email dated 23.03.2018 (Annexure R-4 at page 75 or the RP's reply). Conviction of Tata Steel UK and disability of TSL 41. The Bhushan Employees raised an objection that a wholly owned subsidiary of TSL-Resolution Applicant is a connected person and the entity is known as Tata Steel UK. The aforesaid connected person has been found guilty on two counts under the Health and Safety at Work Act, 1974 (for brevity 'HSW Act5) vide an order dated 02.02.2018 for failing to discharge its duties under Section 2(1) of the HSW Act, UK. The objection raised is that since Tata Steel UK has been convicted by order dated 02.02.2018 passed by the Crown Court at Kingston Upon Hull of an....
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....yet it prescribed only for sentence and had the legislature intended to cover a juristic person like a company within the scope of Section 29-A(d) of the Code in addition to natural persons, it would have expressly specified punishment by imposition of a fine. Having not done that Section 29-A(d) of the Code is inapplicable to juristic persons and would only cover natural persons. It was then contended that Section 3(23) of the Code which defines the term 'person' also includes the term 'company' and the same has been made subject to the term 'unless the context otherwise requires. In this regard, reference has also been made to Section 29-A(e) of the Code which too ex facie applies to natural persons and not to corporate persons. It has also been submitted that conviction under the provisions of Section 33(1)(a) of the HSW Act, UK cannot be categorized and treated equivalent to the one contemplated by Section 29-A(d) of tthe Code as the UK Act provides for 'imprisonment for a term not exceeding two years, or a fine, or both'. It thus prescribes a maximum term of two years whereas Section 29A(d) of the Code contemplates offence punishable with imprisonment for two years or more. It....
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....ed only 0.52% shares were held by Sterling Infotech Private Limited at the end of Financial Year 2016-17. It has also been clarified that Sterling Infotech Private Limited had taken a loan from SCB and pledged its shares in Tata Teleservices Limited to SCB. In order to prevent the shares from being sold to an undesirable entity, Tata Sons provided as undertaking to SCB that it would purchase the shares at a predetermined price in the event of an invocation and did not guarantee any repayment of loan taken by Sterling Infotech Private Limited from SCB. It was only seeking to purchase the shares which were in the nature of a pre-emption right and the undertaking lapsed almost nine years ago as it ceased to operate in March 2009 and was not acted upon by SCB. In any case that Seychelles Bankruptcy Order was subsequently revoked in 2016 and current status of Mr. Sivasankaran or Sterling Infotech Private Limited has not been placed on record. Therefore, the argument is liable to be rejected. 46. Learned counsel then argued that principles of natural justice in respect of Bhushan Employees have been religiously complied with and the Bhushan Employees have no locus standi in the present ....
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....rovided by the objector-BEL for the financial years 2015-2016 or 2016 corresponding to the Debit Note. It also failed to take note of Rs. 90,00,00,000 paid towards security deposit by the Corporate Debtor to BEL during the financial year 2015 which was over and above the aforementioned advance of Rs. 228.225 crores. E. Reliance has been placed on clause 3(i) of the tariff provision of the PPA-2 to argue that the tariff rate under the PPA was to be the rate equivalent to the grid rate or Rs. 3.35 per unit, whichever is higher. The unilateral revision is evidently not on account of any change in the grid rate as BEL has not so far claimed that the grid rate is higher than the tariff under the PPAs. It was further submitted that the treatment of PPAs under the resolution plan has been duly considered and approved by CoC in its commercial wisdom while approving the resolution plan and there cannot be any treatment different than the one provided in the resolution plan could be given to the PPAs by virtue of the provisions of Section 31 read with Regulation 37 of the CIRP Regulations. Accordingly, the termination of PPAs under Section 10.1.16 and 10.1.17 of the Resolution Plan form pa....
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.... amended Section 25(2)(h) of the Code. The order passed by this Tribunal in C.A. No. 237(PB)/2018 on 19.03.2018 have also not been complied with as there is not a word in the application with regard to the aforesaid decision. Learned counsel has maintained his objection with regard to conviction of Tata Steel UK under the provisions of HSW Act, UK and insisted that disqualification would be attracted by virtue of provisions of Section 29-A(d) of the Code. Highlighting the lapse on the part of the Resolution Professional, learned counsel has drawn our attention to the Code of Conduct in the first schedule appended to the 1BB1 (Insolvency Professional) Regulations, 2016 in assuchmuch as no informed decision has been taken as per the direction issued by this Tribunal in the order dated 19.03.2018 nor any of the opinion expressed by legal firms have been discussed. According to the learned counsel para 16 of the Code of Conduct under the first schedule an obligation on the RP is contemplated to maintain written contemporaneous records in such a manner as to sufficiently enable a reasonable person to take a view on the appropriateness of his decision and actions. By not discussing the o....
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....ion 29-A(c) of the Code. In that regard reliance has also been placed on the observations at page 364 of the judgment rendered in the case of Balco Employees Union (Regd.) v. Union of India, (2002) 2 SCC 333 and argued that the Bhushan Employees' group has no locus standi to raise objection to the resolution plan submitted by TSL. 53. Mr. Nayar has also submitted that the application C.A. No. 237 in fact goes against the interest of the employees and an attempt has been made to drive the Corporate Debtor into liquidation by raising frivolous objection so that the period of 270 days expires. In case there is liquidation then the large number of employees would be on the road as they would lose their jobs and livelihood whereas the resolution plan has ensured that they received their huge dues and also to continue to work in the company. It has also been submitted that the Adjudicating Authority is only to examine whether the resolution plan meets the statutory requirements contemplated by Sections 30 and 31 of the Code and if it is satisfied then to approve the same. In that regard reliance has been placed on the observations made in paras 33, 58 and 59 of the judgment of Hon'ble t....
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....decision. According to the learned counsel by virtue of the resolution plan the financial creditors would be able to get back about 67% of their loans and all the employees would continue to work and even otherwise the plan meets all requirements of Sections 30 & 31 of the Code and also all the requirements of the Regulations. Learned counsel has prayed that the resolution plan be approved by the Tribunal. Submissions made on behalf of the Bhushan Energy Limited 56. Mr. Rajeeve Mehra, learned Senior counsel has appeared on behalf of the RP of BEL and has argued that right in property cannot be snatched even by an act of Parliament as has, been held in the case of ICICI Bank Limited v. SJDCO Leathers Ltd., [2006] 10 SCC 452. Elaborating his stand, learned counsel has submitted that valid contracts are 'property' within the meaning of Article 300A of the Constitution and no person can be deprived of his property save by authority of law. Article 300A provides that property includes valid contracts and intangibles such as intellectual property. According to the learned counsel vested right created in favour of a party under a valid contract cannot be taken away. Highlighting another....
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....professional prepared on the basis of the information memorandum. (2) The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan- (a) provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the repayment of other debts of the corporate debtor; (b) provides for the repayment of the debts of operational creditors in such manner as may be specified by the Board which shall not be less than the amount to be paid to the operational creditors in the event of a liquidation of the corporate debtor under section 53; (c) provides for the management of the affairs of the Corporate debtor after approval of the resolution plan; (d) the implementation and supervision of the resolution plan; (e) does not contravene any of the provisions of the law for the time being in force; (f) conforms to such other requirements as may be specified by the Board. (3) The resolution professional shall present to the committee of creditors for its approval such resolution plans which confirm the conditions referred to in sub-section (2). (4) The committee of creditors may approve a ....
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....-section (1),- (a) the moratorium order passed by the Adjudicating Authority under section 14 shall cease to have effect; and (b) the resolution professional shall forward all records relating to the conduct of the corporate insolvency resolution process and the resolution plan to the Board to be recorded on its database." 58. According to the scheme of the Code a resolution applicant is required to submit a resolution plan to the RP prepared on the basis of information memorandum. The information memorandum is a document envisaged under Section 29 and it is required to contain such relevant information as may be specified by the Insolvency and Bankruptcy Board of India. Accordingly, in Regulation 36 of the CIRP Regulations details have been provided with regard to the contents of information memorandum. On the submission of resolution plan the RP is under mandatory obligation to examine each resolution plan received by him under Section 30(2) of the Code and he is to confirm that each resolution plan provides for all item listed under Section 30(2) (a) to (f). If the aforesaid conditions as envisaged by Section 30(2) are fulfilled then such a resolution plan is to be presente....
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....of fund that would be used for such payment. In that regard reference has been made to Section 6.4 and 8.1.2 (i) of Annexure-3 and Annexure-5 of the plan. Therefore, this condition stands satisfied. Thirdly The resolution plan must provide for repayment of the debts of operational creditors in such a manner as may be specified by the Board which are not to be less than the amount to be paid to the operational creditors in the event of liquidation of the corporate debtor under section 53. It is appropriate to mention Section 53 of the Code envisaged the waterfall and the priorities in which distribution of assets of a Corporate Debtor is to take place in case of liquidation. The RP in the resolution plan (supra) has stated that it provides for the repayment of the liquidation value due to operational creditors within the period prescribed under Regulation 38 (1) (b) of the CIRP Regulations. The plan also identifies the specific sources of funds which are to be used for such payment. Reference in that regard has been made to Sections 6.2, 6.3, 6.5, 8.2 and 8.3 of Annexure-3 as well as to Annexure-5. The resolution plan also provides for payment of the liquidation value due to dissent....
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....2018 same facts have been reiterated. Therefore, we find that the fifth requirement has also been fulfilled. 64. The resolution applicant also confirms that the resolution applicant and its connected person are not disqualified to submit a resolution plan under Section 29A of the Code and any other law applicable which further shows that the resolution plan conforms to the provisions of the law for the time being in force and does not contravene any such provision. 65. The sixth requirement is that it conforms to all such requirements which may be specified by the Insolvency and Bankruptcy Board. The aforesaid statement has been made by the RP in para 23 of the written statements filed on 13.04.2018 vide Diary No. 2112. In view of the above we are satisfied that all the requirements of Section 30(2) are fulfilled and no provision of the law for the time being in force has been contravened. 66. However, it is necessary to refer to the provisions of Regulations 38 & 39 of CIRP Regulations to conclude that the requirements specified therein are also fulfilled and the same reads as under:- Regulation 38 Mandatory contents of the resolution plan. (1) A resolution plan shall ident....
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....r, as the case may be, under the terms of the constitutional documents of the corporate debtor, shareholders' agreement, joint venture agreement or other document of a similar nature, shall take effect notwithstanding that such consent has not been obtained, (7) No proceedings shall be initiated against the interim resolution professional or the resolution professional, as the case may be, for any actions of the corporate debtor, prior to the insolvency commencement date. (8) A person in-charge of the management or control of the business and operations of the corporate debtor after a resolution plan is approved by the Adjudicating Authority, may make an application to the Adjudicating Authority for an order seeking the assistance of the local district administration in implementing the terms of a resolution plan. 67. A perusal of Regulation 38 would clearly show that by virtue of mandatory contents of the resolution plan discussed under Sections 30 and 31 of the Code the requirement of Regulation 38 stand fulfilled. However, the objections raised under Section 29A (a) and (d) of the Code which are discussed separately. Even the requirement of Regulation 39 stand fulfilled as ....
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....d any guarantee for repayment of loan taken by Sterling Infotech Private Limited from Standard Chartered Bank. The Resolution Applicant-TSL merely sought to purchase the shares which were in the nature of pre-emptory rights. Even that undertaking had lapsed nine years ago as it ceased to operate in March 2009 and has not been acted upon by Standard Chartered Bank. In any case the order of Bankruptcy issued by Supreme Court of Seychelles has been subsequently revoked in 2016. Therefore, it cannot be concluded firstly that Sterling Infotech Private Limited qualifies as a 'connected person' or 'related party' or 'associated company'. There is not even an imputation that Mr. Sivasankaran and/or Sterling Infotech Private Limited are acting jointly or in concert with TSL-Resolution Applicant in submitting the resolution plan. Moreover, there are serious doubt with regard to the locus standi of Bhushan Employees as the application has been filed only by Mr. Rahul Sengupta who has been the Executive Director of the Corporate Debtor since 2005. The application has not been filed by the Bhushan Employees authorizing anybody. The allegation even otherwise on facts is not sustainable. Accordin....
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....there is no provision for imposition of fine and a corporate body like a company cannot be visited with imprisonment/custodial sentence. In that regard we find that reliance has been rightly placed on the majority view taken by Hon'ble the Supreme Court in the case of Rakesh Kumar Paul v. State of Assam, [2017] 15 SCC 67. In paragraph 25 the relevant observations have been made which reads thus:- "While it is true that merely because a minimum sentence is provided for in the statute it does not mean that only the minimum sentence is imposable. Equally, there is also nothing to suggest that only the maximum sentence is imposable. Either punishment can be imposed and even something in between. Where does one strike a balance? It was held that it is eventually for the court to decide what sentence should be imposed given the range available. Undoubtedly, the Legislature can bind the sentencing court by laying down the minimum sentence (not less than) and it can also lay down the maximum sentence. If the minimum is laid down, the sentencing judge has no option but to give a sentence "not less than" that sentence provided for. Therefore, the words "not less than" occurring in Clause (....
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....correctness of majority view in Valliappa as to whether the task of the Court in the case on hand is one of statutory interpretation. Some counsel have argued that it is open to the Court to read the words 'imprisonment and fine' as 'imprisonment or fine'. In our view, such a construction is impermissible. First, it virtually amounts to rewriting of the section. The Court would be reading the section as applicable to different situations with different meanings. If the offender is a corporate entity, then only fine is imposable; if the offender is a natural person, he shall be visited with both the mandatory term of imprisonment and fine. The exercise would then become one of putting a fluctuating or varying interpretation on the statute dependling upon th e circumstances. That is not permissible for the Court, either on principle, or on precedent. While it may be permissible for the court to read the word 'and' as 'or', or vice versa, whatever the interpretation, it. must be uniformly applied to all situations. If the conjunction 'and' is read disjunctively as 'or', then the intention of Parliament would definitely be defeated as the mandatory term of imprisonment would not be ava....
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....iable to, punishment; capable of being punished by law or right; said of persons of offences. The meaning of the term is not 'must be punished', but 'may be punished', or 'liable to be punished' In the absence of a definition of 'punishable' we have referred to these for gathering the exact meaning of the word. In the sense given to the word, as above, there can be no doubt that the offence of murder is punishable with death even though the punishment awarded is not death but imprisonment for life. 11. An earlier decision of this Court in Kunwar Bahadur and Ors. v. State of Uttar Pradesh : 1980CriLJ831 , where a two-Judge Bench dealt with the provisions of the United Provinces Borstal Act 7 of 1938 was also relied upon. The judgment is a short one. Detailed reference to the provisions of the United Provinces Act has not been made but Section 7 of the Act was referred to and it was observed: (SCC p.340, para 2) Under this Section where a prisoner is sentenced for transportation i.e. life imprisonment and is below the age of 21 years he should be sent to Borstal School where he cannot be detained for more than five years. The law thus contemplates that for such an offender the ....
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....ed by BEL would also not be sustainable it has also been made clear by Regulation 39(6) of the CIRP Regulations (supra) that a resolution plan which would otherwise require consent of members of the Corporate Debtor under the terms of the constitutional document, shareholders3 agreement, joint venture agreement or other document of a similar nature shall take effect notwithstanding that such consent has not been obtained. Regulation 39(6) of the CIRP n Regulations in fact takes care of the provisions made for termination of PPAs which were entered into between the Corporate Debtor and the BEL. Sub-regulation 6 of Regulation 39 is couched in very wide language and provides in categorical terms that no consent from the BEL or its RP is required. The case of the RP would fall within the expression of 'or other document of a similar nature'. If the Resolution Applicant has found the terms of PPAs as onerous and it has been approved by the CoC then it is no ground for the BEL to argue that it is a constitution right conferred by the Article 300A and the same cannot be taken away without due process of law. The IBC Code provides for due process of law. As a matter of fact, the provisions....
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....on behalf of L&T on the face of it appears to be wholly unsustainable. There is no document placed on record showing any creation of charge or security warranting a view that the L&T should be regarded as a secured creditor and not as the operational creditor. The charge is created by execution of a document as per the requirements of S. 132 of the Companies Act, 2013. In the absence answering the basic description of S. 55(4)(b) of Transfer of Property Act no benefit could be gained by L&T. It is well settled that any supplier of goods and services would fall within the meaning of expression 'operational creditor' and the claim made by L&T would amount to rewriting the provisions of the statute which is an impossible proposition. Therefore, we do not find any substance in the aforesaid argument and same is hereby rejected. 81. In view of the above we accept and approve the CoC approved resolution plan of HI Resolution Applicant-TSL. We also approve the appointment of monitoring agency from the date of the approval of the CoC approved resolution plan to function until the closing date i.e. the date on which the implementation of the steps set out in Annexure-5 of the CoC approved ....