AI Drafter 
TaxTMI 
TaxTMI 
2018 (9) TMI 945
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....amji Srinivasan, Senior Advocate assisted by Mr. Indranil Deshmukh, Mr. Raunak Dhillon, Mr. Animesh Bisht, Mr. George Varghesse, Mr. Sidhant Sharma, Mr. Karan Khanna Advocates and Mr. Satish Kumar Gupta -RP, Mr. Sudipto Sarkar, Senior Advocate assisted by Mr. Sapan Gupta, Mr. Vijayant Paliwal, and Ms. Mrida Lakhmani Advocates, for Committee of Creditors, Dr. Abhishek Manu Singhvi, Mr. S.N. Mukherjee, Mr. Raju Nayor, Senior Advocates assisted by Ms. Ruby Singh Ahuja, Mr. Sudhir Sharma, Mr. Vishal Gehrana, Mr. Anupam Prakash, Mr. Sameen Vyas, Mr. Abhishek Swaroop, Mr. Akhil Anand, Mr. Shubham Saigal, Ms. Misha Chandra, Avishkar Singhvi and Mr. Amit Bhandari, Advocates for Arcelormittal India Pvt. Ltd., Dr. Abhishek Manu Singhvi, Mr. S.N. Mukherjee, Mr. Raju Nayor, Senior Advocates assisted by Ms. Ruby Singh Ahuja, Mr. Sudhir Sharma, Mr. Vishal Gehrana, Mr. Anupam Prakash, Mr. Sameen Vyas, Mr. Abhishek Swaroop, Mr. Akhil Anand, Mr. Shubham Saigal, Ms. Misha Chandra, Avishkar Singhvi and Mr. Amit Bhandari, Advocates for Arcelormittal India Pvt. Ltd. JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J. Pursuant to applications under Section 7 of the Insolvency and Bankruptcy Code, 2016 (he....
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....er, 2017, which was accepted and confirmed by the 'Resolution Professional' on 31st October, 2017. 8. After submission of the 'Expression of Interest' of 'Resolution Plan(s)', Section 29A was inserted by the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2017, followed by the 'Insolvency and Bankruptcy Code (Amendment) Act, 2017' w.e.f 23rd November, 2017. 9. In view of insertion of Section 29A, the 'Resolution Professional' by an addendum dated 8th February, 2018, asked the 'Resolution Applicants' to submit the 'Resolution Plans'. The 'AM India Ltd.' thereafter, submitted 'Resolution Plan' on 12th February, 2018. 'Numetal' also submitted its 'Resolution Plan' on the same date i.e. 12th February, 2018. 10. On receipt of 'Resolution Plan's', the 'Resolution Professional' explained the eligibility of both the Appellants, after advice of 'Resolution Professionals', Legal Counsel, Cyril Amarchand Mangaldas (CAM), Mr. Darius Khambata, Former Advocate General, Maharashtra and Former Additional Solicitor General, for his opinion as follows: "Numetal Limited As on the Plan Submission Date: (a) Ravi Ruia (who is the father of Rewant Ruia (who is on....
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....ew of Mr. Darius Khambata, negative control did not constitute 'control' for the purposes of Section 29A(c) of the IBC and accordingly, KSS Petron was not a ground for disqualifying AM India. On account of above two views, CAM recommended to the RP to take the opinion of Mr. Darius Khambata and rely on his advice. Relying on Mr. Khambata's view, the RP stated that ArcelorMittal cannot be said to be in control of KSS Petron and hence KSS Petron was not a ground for disqualifying AM India. As regards Uttam Galva, Both CAM and Mr. Darius Khambhata were of the view that positive control (of the nature which AM Netherlands had in relation to Uttam Galva) constituted control for the purposes of Section 29A(c) of the IBC. Further, the RP informed the COC that: (i) in CAM's view, since AM Netherlands exercised positive control over Uttam Galva, merely divesting the shareholding prior to submission of the resolution plan by AM India could not remote the disqualification of AM Netherlands under Section 29A(c) of the IBC unless cured by payment of the overdue amounts as mentioned in the proviso to Section 29A (c); and (ii) ....
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.... with a view to being fair and transparent treatment to all 'Resolution Applicants'. In this background, the 'Resolution Professional' suggested following options to the 'Committee of Creditors': i. Initiate a new process of inviting bids from all interested parties (Starting with issuance of a new Expression of Interest) and follow the entire process as per new request for proposals approved by the 'Committee of Creditors' ('Option 1'); or ii. Extend the due date for submission of 'Resolution Plans' (as defined in the request for proposals) and permit all the potential 'Resolution Applicants' (as defined in the request for proposal, along with its new addendum) to submit their new 'Resolution Plans' in respect of the 'Corporate Debtor' ('Option 2'). 12. After discussions in the meeting of the 'Committee of Creditors' and keeping in view the timelines available in the 'Corporate Insolvency Resolution Process', Option 2 was put to vote and approved by a majority voting rights of the 'Committee of Creditors'. Relevant facts relating to 'Numetal Limited' 13. The 'Corporate Insolvency Resolution Process' relates to 'Essar Steel India Limited ('ESIL') of which....
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....se as 'AEL' is holding only 25% shares in 'Numetal Ltd.' which cannot block any resolution of any nature in 'Numetal Ltd.'. Consequent to such change in the shareholding, the 'AEL' had no right to appoint any Director on the Board of 'Numetal Ltd.', nor the 'AEL' represented the Board of 'Numetal Ltd.'. 18. It is stated that 'VTB Bank' is one of the largest emerging market banking group listed in the 'Moscow Exchange' and 'London Stock Exchange', with total assets of Rs. 14,30,000 crores approximately having a net-worth of Rs. 1,35,000 crores. The main shareholder of 'VTB Bank' is the Russian Government. 19. The other entity i.e. 'TPE', is a wholly owned subsidiary of the Russian State Corporation called Rostec (annual turn-over of approximately US$ 21 Billion i.e. over Rs. 1,30,000 crores) and is a leading Engineering Company which had set up all the earlier Steel Plants in India such as Steel Authority of India Limited (SAIL) and Rashtriya Ispat Nigam Limited (RINL) and has operations in 30 countries. 20. The third entity, 'Indo' is trading in Steel and Steel related raw materials for the last 15 years and has trading relations with all the major steel manufacturers of t....
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....onsequently acting in concert with Mr. Rewant's father. 29. It was submitted that Mr. Ravi was the promoter of 'Essar Steel India Limited'- ('Corporate Debtor') and Mr. Rewant is his son. Mr. Rewant has his own business and otherwise directly or indirectly not connected with 'Essar Steel India Limited'- ('Corporate Debtor'). 30. Following submission was also advanced by learned Senior Counsel for the Appellant: i. A shareholder cannot be said to be acting jointly or in concert with 'Numetal Ltd.' irrespective of its shareholding. In the instant case 'AEL's' shareholding was just 25% with no management or control rights or even a right of negative control. 'Numetal Ltd.' cannot be said to be acting jointly or in concert with any of its shareholders much less with 'AEL'. ii. 'AEL' or Mr. Rewant does not suffer from any ineligibility under clauses (a) to (i) of Section 29A. iii. 'Numetal Ltd.' has no connected person ineligible under clauses (a) to (i) of Section 29A. 31. It was also submitted that the 'Resolution Professional' wrongly held that 'Numetal Limited' is a consortium of four shareholders. Such finding is not based on any evidence. 32.....
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....outside the Union whose proprietary rights are owned for more than 50 %by an entity listed in Annex III; or (c) a legal person, entity or body acting on behalf or at the direction of an entity referred to in point (b) of this paragraph or listed in Annex III." 36. It was submitted that a combined reading of Article 5 and Article 13 demonstrates that the Council of the European Union has prohibited 'VTB Bank' from all securities trading within the territory of the EU or with companies incorporated under the law of an EU member state with a maturity increasing 90 days. 37. It was also submitted that Article 5(c) further prohibits securities transactions with legal persons acting on behalf of or at the direction of an entity listed in Annex III, therefore, apart from 'VTB Bank', the Resolution applicant itself would be prohibited from trading in securities and accessing the securities market of the EU. For this reason, also, the Applicant is squarely attached with the disability under sub-clause (f) read with sub-clause (i) of Section 29A of the Code. 38. It was further submitted that similar sanctions have been imposed on 'VTB Bank' by the concerned authorities in t....
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....s not eligible to be resolution applicant.─ A person shall not be eligible to submit a resolution plan, if such person, or any other person acting jointly or in concert with such person- (a) is an undischarged insolvent; (b) is a wilful defaulter in accordance with the guidelines of the Reserve Bank of India issued under the Banking Regulation Act, 1949; (c) has an account, or an account of a corporate debtor under the management or control of such person or of whom such person is a promoter, classified as non-performing asset in accordance with the guidelines of the Reserve Bank of India issued under the Banking Regulation Act, 1949 and at least a period of one year has lapsed from the date of such classification till the date of commencement of the corporate insolvency resolution process of the corporate debtor: Provided that the person shall be eligible to submit a resolution plan if such person makes payment of all overdue amounts with interest thereon and charges relating to non-performing asset accounts before submission of resolution plan; (d) has been convicted for any offence punishable with imprisonment for two years or m....
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....n' is not eligible. 42. Section 29A must be interpreted in light of the mischief it sought to curtail. The 'Statement of Objects and Reasons' appended to the Insolvency and Bankruptcy Code (Amendment) Bill, 2017 (Bill No. 280 of 2017) in Lok Sabha (ultimately passed as Act 8 of 2018), seeking the abovesaid amendment is as under: "2. The provisions for insolvency resolution and liquidation of a corporate person in the Code did not restrict or bar any person from submitting a resolution plan or participating in the acquisition process of the assets of a company at the time of liquidation. Concerns have been raised that persons who, with their misconduct contributed to defaults of companies or are otherwise undesirable, may misuse this situation due to lack of prohibition or restrictions to participate in the resolution or liquidation process, and gain or regain control of the corporate debtor. This may undermine the processes laid down in the Code as the unscrupulous person would be seen to be rewarded at the expense of creditors. In addition, in order to check that the undesirable persons who may have submitted their resolution plans in the absence of such a provision, r....
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....ligible on the date of submission of 1st 'Resolution Plan' on 12th February, 2018. 47. Mr. Harish Salve, learned Senior Counsel referred to clause (d) of Article 2(i) of the European Union "Directive 2004/25/EC of the European Parliament and of the Council of 21st April, 2004 on takeover bids for the purpose of definition of 'person acting in concert', which reads as follows: "Article 2 Definitions 1. For the purposes of this Directive: (d) persons acting in concert shall mean natural or legal persons who cooperate with the offeror or the offeree company on the basis of an agreement, either express or tacit, either oral or written, aimed either at acquiring control of the offeree company or at frustrating the successful outcome of a bid:" 48. On the other hand Dr. A.M. Singhvi, learned Senior Counsel appearing on behalf of the 'AM India Ltd.' relied on Regulation 2(1)(q) of the 'SEBI (Substantial Acquisition of Share and Takeover) Regulations, 2011' for the purpose of definition of 'person acting in concert', which reads as follows" (q) "persons acting in concert" means,-- (1) persons who, with a common objective or purpos....
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....d-up capital of that investment company or unit capital of that fund: Provided that nothing contained in this sub-clause shall apply to holding of units of mutual funds registered with the Board; Explanation.-For the purposes of this clause "associate" of a person means,-- (a) any immediate relative of such person; (b) trusts of which such person or his immediate relative is a trustee; (c) partnership firm in which such person or his immediate relative is a partner; and (d) members of Hindu undivided families of which such person is a coparcener;" 49. It was submitted that Mr. Rewant being son of Mr. Ravi, 'Promoter' of 'ESIL' ('Corporate Debtor') comes within the meaning of 'person acting in concert'. Mr. Rewant being the 100% shareholder of 'AEL', it is to be held that 'Numetal Ltd.' is 'acting in concert' with immediate relative of the 'Corporate Debtor'. 50. The stand taken by the learned Senior Counsel for the 'Numetal Ltd.' is that Regulation 2(1) (q) cannot be relied upon for the purpose of defining the 'person acting in concert', as mentioned in Section 29A. 51. Sections 3 and 5 of the 'I&B Code' are the definit....
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....gulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation." 56. The 'SEBI (Substantial Acquisition of Shares and Takeover) Regulation, 2011' has been approved by both the houses of the Parliament, therefore, it can be said that the Regulations 2011 is part of the self-contained Code, namely- 'Securities and Exchange Board of India Act, 1992'. 57. In "State of U.P. v. Babu Ram Upadhya− (1961) 2 SCR 679", the Hon'ble Supreme Court dealt with the position of rules made u....
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....ons, 2011' for the purpose of expression of 'person acting in concert'. 'Resolution Plan' submitted by the 'Numetal Ltd.' on 12th February, 2018 60. As on 12th February, 2018, when the 1st 'Resolution Plan' was submitted by 'Numetal Ltd.', it had four shareholders. (i) 'Crinium Bay' : 40% (ii) 'Indo' : 25.1% (iii) 'TPE' : 9.9% (iv) 'AEL' : 25% 61. Admittedly, Mr. Rewant is 100% shareholder of 'AEL' and 'AEL' held 25% in 'Numetal Ltd.' even as on 12th February, 2018, Mr. Rewant being son of Mr. Ravi, who is the promoter of the 'Corporate Debtor', we hold that 'AEL' is a related party and comes within the meaning of 'person in concert' in terms of Regulation 2(1)(q). 62. In view of the aforesaid findings, we hold that at the time of submission of 1st Resolution Plan by 'Numetal Ltd.', one of the shareholders being 'AEL', 'Numetal Ltd.' was not eligible to submit 'Resolution Plan' in terms of Section 29A. Position of 'Numetal Ltd.' as on 29th March, 2018 when the subsequent 'Resolution Plan' was submitted by 'Numetal Ltd.'. 63. The 'Committee of Creditors' had extended the period for submitting a fresh '....
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.... Limited' which submitted its 'Expression of Interest' to submit 'Resolution Plan' on 12th October, 2017. 70. 'AM Netherlands' is 100% subsidiary of 'ArcelorMittal Societe Anonyme' ("AMSA" for short) which is a listed company incorporated in Luxemburg. 'AM India Ltd.' is also a subsidiary (99.99%) of 'AMSA'. Accordingly, 'AMSA' is promoter, in the management and in control of 'AM India Ltd.'. According to the 'Resolution Professional', the 'Committee of Creditors' and the Adjudicating Authority in view of the aforesaid connection, 'AM Netherlands' becomes a connected person and such connected person has an account of 'Corporate Debtor'- 'Uttam Galva' under the management, control or of whom such connected person namely 'AM Netherlands' is a promoter and is classified as 'NPA' for more than one year before 2nd August, 2017. 71. 'KSS Petron Private Limited' ("KSS Petron" for short) is a wholly owned subsidiary of 'KazStroy Service Global BV Netherlands' ("KSS Global BV" for short). 'KSS Petron' has a subsidiary company called 'Petron Engineering & Construction Limited' ("Petron Engineering" for short). Pursuant to a Share Purchase Agreement dated 3rd March, 2011, one 'Freseli I....
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....rofessional' and the 'Committee of Creditors' held that 'AM India Ltd.' is ineligible. The Adjudicating Authority while noticed that Section 29A has come into force on 23rd November, 2017, whereas 'Expression of Interest' for 'Resolution Plan' was submitted by 'AM India Ltd.' much prior to the said date i.e. on 22nd October, 2017, referring second proviso to sub-section (4) of Section 30, the Adjudicating Authority observed and held that the 'AM India Ltd.' shall be eligible to submit a 'Resolution Plan', if it makes payment of all overdue amounts with interest thereon and charges relating to 'NPA' accounts before submission of 'Resolution Plan'. As the declassification started since 2nd August, 2017, the Adjudicating Authority held that it can only be remitted in the manner as provided under clause (c) of Section 29A read with second proviso to sub-section (4) of Section 30 and in no other manner. 78. By impugned order, the Adjudicating Authority while held that in order to become eligible, overdue amounts to lenders in both the cases of 'KSS Petron' and 'Uttam Galva Steels Ltd.' should be paid by Arcelor Mittal before being eligible to bid, as provided in Section 29A itself. F....
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....oter in 'Uttam Galva' by reason of the following:- a) It had transferred its entire shareholding of 29.05% in 'Uttam Galva' on 7th February, 2018, who received the entire consideration for such transfer on 7th February, 2018; and' b) The Depository Participant Account of 'AM Netherlands' ceased to show the said shares and instead the demat account of the transferee i.e. 'Sainath Trading Company Private Limited' was credited with the said shares on and w.e.f. 7th February, 2018. 83. According to learned Senior Counsel, the sale stood concluded on 7th February, 2018 with the 'Depository Participant Account' of 'AM Netherlands' being rectified and not reflecting such shareholding and on 'Sainath Trading Company Private Limited' 'Depository Participant Account' being credited with the concerned shares. 84. Pursuant to the sale and as a consequence of 'AM Netherlands' shareholding becoming zero, the Co-Promotion Agreement dated 4th September, 2009, pursuant to which the status of 'promoter' had been conferred on 'AM Netherlands' in 'Uttam Galva', stood automatically terminated on 7th February, 2018, in terms of clause 21.6 of the said agreement. 85. Subsequent....
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....ovided that the 'KSS Global' group, which included 'KSS Petron', would not be deemed to be an affiliate of 'Fraseli'. (d) 'Fraseli' had no right in the appointment of the CEO of 'KSS Global; and (e) 'Fraseli' did not hold any share in 'KSS Petron' and did not have the right to nominate any Directors in 'KSS Petron'. 89. Further, according to learned Senior Counsel for the Appellant, the entire shareholding of 'Fraseli' in 'KSS Global' was transferred on 9th February, 2018, which was before the plan submission date. 90. It also submitted that the 'Resolution Professional', after examination of all relevant material, had concluded that 'AM India Ltd.' was not disqualified on account of 'KSS Petron' issue. Stand of 'Numetal Limited' against 'AM India Ltd.' 91. Mr. Mukul Rohatgi, learned Senior Counsel appearing on behalf of the 'Numetal Ltd.' submitted that an entity controlled and managed by connected persons of 'AM India Ltd.' allegedly divested its shareholding in 'KSS Global BV' (100% owner of 'KSS Petron' an NPA company) on 9th February, 2018 and its nominee Directors also resigned on the same day i.e. 3 days before submission of the 'Expression of I....
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....ization of the assets of the 'Corporate Debtor' or not. Analysis of law and the case of 'AM India Ltd.' 99. Section 25 of the 'I&B Code' relates to "Duties of Resolution Professional". Clause (h) of sub-section (2) of Section 25 reads as follows: "25. Duties of resolution professional.-.......... xxx xxx xxx (2) For the purposes of sub-section (1), the resolution professional shall undertake the following actions, namely: - .............. xxx &n....
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.... period, not exceeding thirty days, to make payment of overdue amounts in accordance with the proviso to clause (c) of Section 29A, which is as follows: "30. Submission of resolution plan.─ xxx xxx xxx Provided further that where the resolution applicant referred to in the first proviso is ineligible under clause (c) of section 29A, the resolution applicant shall be allowed by the committee of creditors such period, not exceeding thirty days, to make payment of overdue amounts in accordance with the proviso to clause (c) of....
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....e date of submission of the 'Resolution Plan'. In this background, we hold that the date of submissions of the 1st 'Resolution Plan(s)' of 'AM India Ltd.' and 'Numetal Ltd.' will be deemed to be 11th October, 2017/12th February, 2018 and 20th October, 2017/12th February, 2018 respectively. 110. If the aforesaid proposition is not accepted, it will deprive the 'Resolution Applicants' from deriving advantage of second proviso to sub-section (4) of Section 30 inserted on 23rd November, 2017, even though they acted to submit the 'Resolution Plan' by submitting the 'Expression of Interest' of 'Resolution Plan'. 111. In view of the aforesaid finding, we hold that the Adjudicating Authority rightly held that the Appellant- 'AM India Ltd.' should have been given the opportunity by the 'Committee of Creditors' in terms of second proviso to sub-section (4) of Section 30. 112. The question arises for consideration is whether the 'AM Netherlands' is eligible, having transferred its entire shareholding of 'Uttam Galva' on 7th February, 2018 and by transferring of its entire shareholding of 'Fraseli' in 'KSS Global' on 9th February, 2018 i.e. two to four days prior to the submission of ....
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....all overdue amounts in accordance with the proviso to clause (c) of Section 29A, no other manner a person, who is otherwise ineligible under clause (c) of Section 29A, can become eligible. There is no provision in the 'I&B Code' which permits an ineligible person to become eligible by selling or transferring its shares of the Company whose accounts have been declared as NPA in accordance with the guidelines of Reserve Bank of India. 117. Admittedly, 'AM Netherlands' is related party of 'AM India Ltd.'. 'AM Netherlands' was the promoter of 'Uttam Galva' on the date when the 'Uttam Galva' classified as NPA in accordance with the guidelines of Reserve Bank of India and a period of one year has elapsed from the date of such classification, at the time of commencement of 'Corporate Insolvency Resolution Process' of the 'Corporate Debtor'. 118. Once the stigma of "classification of the account as NPA" has been labelled on the promoter of the 'Uttam Galva', even after sale of shares by 'AM Netherlands' it may ceased to be a member or promoter of the 'Uttam Galva', but stigma as was attached with it will continue for the purpose of ineligibility under clause (c) of Section 29A, till ....
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....n'. 122. Admittedly, there are three nominee Directors of 'AM India Ltd.' in 'KSS Petron', one of the NPA Company. The nominee Directors of the Appellant- 'AM India Ltd.' had also resigned on 9th February, 2018 i.e. three days' before the submission of the 'Resolution Plan'. Therefore, it is clear that the 'AM India Ltd.' had complete control over the 'KSS Petron'. 123. It is informed that after impugned order passed by the Adjudicating Authority, the 'AM India Ltd.' had made conditional deposit of Rs. 7,000 Crores in its own current account (Escrow Account). Such depositation of the amount in its own Escrow Account does not qualify as a payment of overdue amounts in terms of proviso to clause (c) of Section 29A. A conditional offer to pay the over dues amount cannot be accepted till it is complied in the light of proviso to clause (c) of Section 29A unconditionally. 124. Dr. Abhishek Manu Singhvi, learned Senior Counsel appearing on behalf of 'AM India Ltd.' when asked, on instruction, submitted that if this Appellate Tribunal accept the 'Resolution Plan' submitted by the 'AM India Ltd.', it may deposit the non-performing assets amount with interest in the respective acco....
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....O SUBMIT RESOLUTION PLAN FOR ESSAR STEEL INDIA LIMITED Essar Steel India Limited ("Corporate Dabtor") is an integrated steel producer with an installed iron making capacity of 10 MTPA and steel making capacity of c.9.7 MTPA. Pursuant to an order dated August 2, 2017 of Hon'ble National Company Law Tribunal, Ahmedabad ("NCLT"), the Corporate Insolvency Resolution Process ("CIRP") has been initiated in the matter of the Corporate Deblor as per the provisions of India's Insolvency and Bankruptcy Code 2016 ("IBC"). The NCLT had appointed Mr. Satish Kumar Gupts as the Interim Resolution Professional for the Corporate Debtor. The Committee of Creditors ("CoC") pursuant to the e-voting conducted on September 4, 2017 under regulation 26 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Parsons) Regulations, 2016 (CIRP Regulations") approved the appointment of Mr. Satish Kumar Gupta as the Resolution Professional ("RP") of the Corporate Debtor. The RP under section 25(2)(h) of the IBC hereby invites all prospective lenders, investors and any other persons (Potential Resolution Applicant") who meet the eligi....