TaxTMI 
TaxTMI 
2019 (5) TMI 518
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.... No. 259 of 2018 in CP(IB)No. 48/2017, is filed by the applicant, the Resolution Professional of Corporate Debtor M/s. Alok Industries Limited, under Section 30(6) read with 31(1) of the Insolvency and Bankruptcy Code, 2016 (as amended), read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (as amended), for submission and approval of the Resolution Plan submitted by Respondents No. 1 to 3 in respect of the Corporate Debtor with the following prayers: (a) Pass an order approving the Resolution Plan submitted by the Resolution Applicants in respect of the Corporate Debtor under Section 31(1) of the Code and declare that the same be binding on the Corporate Debtor, its employees, members, creditors, guarantors and other stakeholders involved in the Resolution Plan; (b) Pass an order directing that, pending the disposal of the present application by this Tribunal, the Resolution Professional shall continue to conduct its role as the Resolution Professional of the Corporate Debtor and during such period shall have all powers, duties and protections as are available to him as a Resolution Pr....
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....d to as "Corporate Debtor" having registered office at 17/5/1 & 521/1, Rakholi/Saily, Silvassa - 396 230 in the Union Territory of Dadra and Nagar Haveli and having its corporate office at 2nd and 3rd Floor, Tower B, Peninsula Business Park, G.K. Marg, Lower Parel, Mumbai - 400 013. 2.2 The said CP(IB) No. 48/2017 was admitted on 18.07.2017 by this Adjudicating Authority and appointed Shri Ajay Joshi, as the Interim Resolution Professional (hereinafter referred to as "IRP"). 2.3 The Resolution Professional, so appointed, made public announcement on 19.07.2017 as per the provisions of section 15 of the Code calling upon the claims from the creditors in view of the order dated 18.07.2017 of this Adjudicating Authority. Consequent upon public announcement, IRP received claims from different creditors, members, stakeholders, employees, the workmen etc. However, on verification and doing all deliberations, the admitted claim of the Corporate Debtor stood at Rs. 29,523.86 crores, as on the date of filing of this application. 3. It is stated that on confirmation of IRP as Resolution Professional (hereinafter referred to as "RP") in the first meeting of CoC dated 16.08.2017, Expression ....
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....espect to the CIR process of the Corporate Debtor, the RP requested the members of CoC to consider and waive the requirement of inviting fresh Expressions of Interest and ratify the negotiations concluded by the RP, its advisors and the CoC's advisors with the Resolution Applicants with respect to the Resolution Plan. 4.4 The CoC in its fourteenth meeting held on April 13, 2018 agreed to consider the Resolution Plan subject to vote by the CoC. However, the said Resolution Plan put to vote, could not garner 75 per cent of the voting share (as required under the then required criteria prescribed under Section 30(4) of the Code) on the date of the voting for approval of the Resolution Plan). The Resolution Plan received only 70.01 per cent assenting voting share of the CoC. 5. Since CIR period expired on April 14, 2018 and no resolution plan was approved by CoC during that period, the RP filed an application under section 33(1) of the Code before this Adjudicating Authority with a prayer for passing an order of liquidation of Corporate Debtor bearing IA number 136 of 2018 in CP (IB) No. 48/7/NCLT/AHM/2017 before this Adjudicating Authority. 6. It is pertinent to mention herein ....
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....ts before the CoC for its re-look and proper consideration, in light of the Ordinance 2018 on the same parameters as it were earlier considered. This Adjudicating Authority further held that no further issues will be incorporated, considered or involved which were not taken into account while the Resolution Plan was submitted by the Resolution Applicants. 10. Accordingly, in view of the order so passed by this Adjudicating Authority on June 11, 2018 Resolution Applicants were asked to furnish Earnest Money Deposit of Rs. 25,00,00,000 (Rupees Twenty-Five crores only) in accordance with Clause 1.3.5 (read with Clause 1.8) of the Process Memorandum to enable the CoC to consider the Resolution Plan submitted by the Resolution Applicants. 11. It is stated/further submitted that pursuant to the order dated 11.06.2018 passed by this Adjudicating Authority, the RP, convened the fifteenth meeting of the CoC on June 18, 2018 to apprise the CoC of the order so passed by this Adjudicating Authority and in light of the same, consider the revised voting threshold in terms of the Ordinance dated 06.06.2018 for approval of the Resolution Plan. In the sixteenth meeting of CoC on June 20, 2018 the....
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....s filed with Securities Exchange Board of India ("SEBI"); (b) the composition of the board of directors of JM Financial Asset Reconstruction Company Limited, along with details of independent and non-independent directors of JM Financial Asset reconstruction Company Limited; (c) the list of persons who are in 'control' of JM Financial Asset reconstruction Company Limited (other than persons already covered in point (iii) above) along with the details of the nature and means of control; (d) the list of 'key managerial personnel of JM Financial Asset Reconstruction Company Limited; (e) the shareholding pattern of JM Financial Asset Reconstruction Company Limited, its holding company (directly and indirectly, including the ultimate parent as defined in the Process memorandum), subsidiary companies and its associate companies along with a group structure chart; (f) the list of all shareholders holding more than 5% or more of the paid-up and issued share capital of JM Financial Asset reconstruction Company Limited or voting rights in JM Financial Asset Reconstruction Company Limited; and (g) the list of 'related parties' of JM Financial Asset Reconstruction Company ....
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....tion Company Limited and RIL, JM Financial Asset Reconstruction Company Limited and RIL, where it is confirmed that neither JM Financial Asset Reconstruction Company Limited, RIL nor any of its connected persons are debarred from accessing or trading in the securities market under any order or directions of SEBI. (ix) Annexure 3 of the Resolution Plan, where RIL and connected persons have listed out the transactions undertaken with the Company in the preceding 2 years. (x) The report dated April 06, 2018 submitted by Grant Thornton India LLP that the furnished information relating to eligibility of the resolution applicants and their connected persons under Section 29A of the Code through a review of public records. (xi) The legal opinions procured from legal experts with respect to the eligibility of JM Financial Asset Reconstruction Company Limited and RIL under Section 29A of Code. 2. Section 30(2)(a) of the Code (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 payment of other debt....
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....ing the approval of the CCI until the Closing Date, the Corporate Debtor will be managed by a reconstituted MC comprising of 4 representatives of the Resolution Applicants and the erstwhile resolution professional. After the Closing Date, a new board of directors constituted by the Resolution Applicants will replace the MC and it will have adequate representation from the members of the resolution applicants and as per requirements under applicable law. 5. Section 30(2) (d) of the Code (d) the implementation and supervision of the resolution plan; Same as above 6. Section 30(2)e of the Code (e) does not contravene any of the provisions of the law for the time being in force; In Clause 2.1 (viii) and Clause 12.1 (iii) of the Resolution Plan, the Resolution Applicants declare and confirm that the Resolution Plan is not in contravention of the provisions of any applicable laws. Further, the Resolution Professional confirms that the Resolution Plan is not in contravention with any law for the time being in force. 7. Regulation 38(l)(a) of the CIR Regulations (1) A resolution plan shall identify specific sources of funds that will be used to pay the - (a) insolvency resoluti....
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....ts will be paid in priority to the payments made to assenting financial creditors. 10. Regulation 38(1 A) of the CIR Regulations (1A) A resolution plan shall include a statement as to how it has dealt with the interests of all stakeholders, including financial creditors and operational creditors, of the corporate debtor." The Resolution Plan (under Clauses 3.1 to 3.8) specifies how the Resolution Applicants propose to deal with the liabilities and interests of all financial creditors, OCs, employees and workmen, governmental authorities, insolvency resolution process costs, existing shareholders and other stakeholders of the Corporate Debtor. Resolution Applicants have also provided a confirmation under Clause 12.1 (iv) of the Resolution Plan that it has dealt with the interest of the stakeholders (including all the financial creditors, OCs, other creditors and other stakeholders of the Corporate Debtor). 11. Regulation 38(2)(a)of the CIR Regulations (2) A resolution plan shall provide: (a) the term of the plan and its implementation schedule; Clause 6.1 states the term of the resolution Plan and Annexure 2 of the Resolution Plan provides the implementation schedule along....
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....) disqualification, if any, under Companies Act, 2013, to act as a director; (e) identification as a wilful defaulter, if any, by any bank or financial institution or consortium thereof in accordance with the guidelines of the reserve Bank of India; (f) debarment, if any, from accessing to, or trading in, securities markets under any order or directions of the SEBI; and (g) transactions, if any, with the corporate debtor in the preceding 2 years. Further, as per Clause 7.1.2 of Resolution Plan the promoter group will not participate in the management of the Corporate Debtor during the period between the NCLT approval date and Closing Date. 15. On filing of the instant application i.e. IA 259 of 2018 for approval of Resolution Plan and during its pendency, following IAs were filed which are as under: IA P-067 of 2018 in IA 135 of 2018 in CP(IB) No. 48 of 2017 IA 282 of 2018 in CP(IB) No. 48 of 2017 IA 326 of 2018 in CP(IB) No. 48 of 2017 IA 425 of 2018 in CP(IB) No. 48 of 2017 IA 20 of 2019 in CP(IB) No. 48 of 2017 IA 41 of 2019 in IA 259 of 2018 IA 87 of 2019 in CP(IB)) No. 48 of 2017 IA 88 of 2019 in CP(IB) No. 48 of 2017 16. Facts of each IA are as under: 16.1....
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....ution Plan is nothing but an eyewash by making the sustainable financial debt as unsustainable financial debt. It is stated by the applicants that Resolution Plan proposes reduction of the Corporate Debtor's share capital from Rs. 1377,31,78,950/- to Rs. 137,73,17,895/- without any payout to the shareholders of the Corporate Debtor company by reducing the face value of each issued and outstanding equity share of the Corporate Debtor from Rs. 10/- to Rs. 1/- (Face Value Reduction). The said Resolution Plan is against the public and hence required to be rejected. 16.4 IA 425 of 2018 It is stated that the applicant is a Financial Creditor of the Corporate Debtor. The Corporate Debtor had availed credit facilities from ING Vysya Bank Limited and by an order dated 31.03.2015 of the Reserve Bank of India, ING Vysya Bank Limited was merged with the applicant with effect from 01.04.2015 with the borrowings from other lenders. The claim of the applicant as verified by the RP is about Rs. 117.66 crores. The applicant further states that for due repayment of the credit facilities, the Corporate Debtor created securities over its assets in favour of the applicant. For due repayment....
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....cross the world to incorporate "Take or Pay" obligation / charges (further referred as "TOP" obligation / charges) which is required to be paid by the buyer of the gas to the seller of the gas if the buyer fails to take or receive minimum guaranteed demanded quantity of gas. In other words, in the instant case, the Corporate Debtor has guaranteed a minimum demand of 0.185 MMSCMD approximate average daily volume quantity of gas per day from the applicant under the Article No. 6.1 of the GSA. If the Corporate Debtor fails to consume / receive the said minimum guaranteed demanded Natural Gas then he would be required to pay charges for the said minimum guaranteed gas quantity which he has failed to consume/receive. Therefore, in terms of Article 14 of GSA, the applicant has raised its claim letters/bills towards the TOP charges or claiming the payment of gas which was made available by the applicant as a guaranteed demand to the Corporate Debtor, but the Corporate Debtor has not consumed/received it. The applicant has already raised its claim towards the said unpaid contractual dues by the Corporate Debtor in the year 2014, 2015 and 2016. As the Corporate Debtor has failed to respond ....
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....nal creditors. Further, it is submitted by them that Section 60(5) confers upon them the statutory right by way of which they can challenge the terms of a proposed Resolution Plan and Section 61 statutory right of appeal on the applicants. 16.8 IA 88 of 2019 It is stated by the applicants that they are operational creditors of the Corporate Debtor Company and their outstanding dues are Rs. 38,49,915/- It is stated by the applicants that applicants have come to know that in Resolution Plan, the trade creditors i.e. operational creditors have been allotted only 4.83 crores. Further, only trade creditors with outstanding of less than 3 lakhs are being paid 100% of their verified claims while the rest of the trade creditors have been assigned NIL value. In support of their contention, the applicants have stated that Bankruptcy Law Reforms Committee, which conceptualized the Code, used inter alia two design principles, namely (1) the liabilities of all creditors, who are not part of the process, must also be met; and (2) the rights of all creditors shall be respected equally. The Code, accordingly, envisages resolution for maximizing the value of the assets of the firm to promote e....
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....ion of the short-term loan facility extended by the assignor to the Corporate Debtor was duly deliberated upon and considered at two separate meetings of the CoC on 16.08.2017 and 04.10.2017 (annexed as Annexure "G" and "H" to the Interlocutory Application). That, the allegation made by the applicant that he has been discriminated against the benefit of other lenders is not tenable, inasmuch as, the same is evident from the email dated 16.06.2018 addressed by the respondent No.1 to the applicant (annexed as Annexure "J" to the Interlocutory Application). 17.3 Reply of Respondents in IA No. 326 of 2018 The instant application is filed by Shah Rajul Devidas and Another. Learned lawyer appearing on behalf of the RP submitted that the applicants being equity shareholders of Alok Industries Limited (Corporate Debtor) have no locus standi to intervene in the present proceedings either in terms of the Insolvency and Bankruptcy Code, 2016 (Code) or under any other law in force. It is further submitted that the Resolution Applicants have taken care of all the stakeholders, members, creditors, employees, workmen etc as per liquidation value in compliance with the Code, the Insolvency and ....
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....awyer appearing on behalf of the RP submitted that the application is filed at extremely belated stage i.e. on 24th January, 2019 whereas the Resolution Plan is of dated April,. 2018 and the same was approved by the CoC in the month of June, 2018. That, allegations with regard to the discrimination of the creditors are not maintainable inasmuch as the CoC or the Resolution Applicants have to follow the Rules and Provisions of IB Code. Further, the Resolution Applicant has taken care of all the member/shareholder/ stakeholder as per the liquidation value and as per section 53 (1) of the Code. In this regard, it is stated that Legislature in his wisdom has categorically elaborated jurisdiction of RP and the Appellate Authority has only to review the compliance of the Resolution Plan per Section 30 (2) of the Code and Regulations. It is further stated by the respondent(s) that above applicant(s) has/have failed to make out any case as to why the present interlocutory application(s) has/have been filed at such belated stage in the proceedings whereas the Resolution Plan dated 12th April, 2018 was approved by the CoC on 20th June, 2018. It is further stated that applicant(s) never rai....
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....tional Company Law Tribunal has no jurisdiction and authority to analyze or evaluate the commercial decision of the CoC to enquire into the justness of the rejection of the Resolution Plan by the dissenting financial creditors. While giving the decision, the Hon'ble Supreme Court has further observed that ".... Non-recording of reasons for approving or rejecting the Resolution Plan by the concerned financial creditor during the voting in the meeting of CoC would not render the final collective decision of CoC nullity per se...." 19. As far as differential treatments to different classes of creditors under the terms of the Resolution Plan are concerned, RP has cited the judgment of the Hon'ble Supreme Court in the matter of Swiss Ribbons (P.) Ltd. v. Union of India & Ors. The above said replies put forward by the ld. Lawyer of the RP has not only been supported by the ld. Lawyer of the CoC and the Resolution Applicants, but they have also put forward their replies on the same line relying upon the various decisions of the NCLAT as well as the Hon'ble Supreme Court as stated hereinabove. 20. Notwithstanding above, in the interest of justice, it is expedient to deal wit....
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....by the RP or by CoC. There would have been no reason to sit on the fence such conduct itself shows the lack of bona fide on the part of the applicants (interveners). 20.4 Further, it is specifically provided in the Code under section 30(2) (e) of the Insolvency and Bankruptcy that Resolution Plan should not contravene any of the provisions of law for the time being in force. As per Explanation Clause to section 30(2) of the Insolvency Code (inserted w.e.f. 06.06.2018) which read as under "For the purpose of Clause (e), if any approval of shareholders is required under the Companies Act, 2013 (18 of 2013) or any other law for the time being in force for implementation of actions under the Resolution Plan, such approval shall be deemed to have been given and it shall not be a contravention of that Act or Law". Under such circumstances, when the Code has provided that an act has to be performed in a particular manner, in that event, any deviation will attract illegality in approval of the Plan by the CoC so submitted by the Resolution Applicant. The Plan which has been approved by CoC in its commercial wisdom, looking to the viability and feasibility of the business of Corporate Deb....
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....lution Applicant has already clarified before the Adjudicating Authority, that there would be no demand for gas from the applicant of IA 41 of 2019 arising out of any prior obligation under Gas Sale Agreement dated 27.05.2013 (GSA) until the closing date. It is further categorically submitted by the Resolution Applicant that no gas has been availed of by the Corporate Debtor under GSA after January, 2014. However, if applicant wishes to continue supply to the Corporate Debtor, it may separately negotiate on the same with the Resolution Applicant and the same does not fall within the ambit of the Resolution Plan. The Resolution Applicant had already clarified the position. 20.7 It is pertinent to mention that as per the total financial outlay, the liquidation value payable/due to the operational creditors (other than workmen) is 'NIL'. Accordingly, the question of any priority payments being due to operational creditors does not arise at all. Hence, the question of discrimination in the Resolution Plan also does not arise at all. However, the dues owed by the Company to certain Operational Creditors (to each of whom the Company, as on the insolvency Commencement Date, owes ....
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....s who voted in favour of the Resolution Plan. On perusal of the entire Resolution Plan, we, hereby notice that though there are/were heavy haircut, however, the Resolution Plan provides for payment of insolvency resolution process costs in the manner specified by the Code, in priority to the repayment of the other debts of the Corporate Debtor and also provided for the payment of debts of operational creditors as per the waterfall mechanism mentioned under section 53 of the Code. 21. The present application i.e. IA No 259 of 2018 has been filed for approval of the Resolution Plan under section 30(6) read with section 31(1) of the Code (as amended) read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (as amended for submission and approval of Resolution Plan submitted by JM Financial Reconstruction Company Limited, JMFARAC - March, 2018 - Trust and Reliance Industries Limited in respect of the Corporate Debtor. 21.1 The applicant/RP deliberating the sequence of events right from calling EoI up to approval of the Resolution Plan by the CoC in its sixteenth meeting held on 20.06.2018 submi....
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....tribution of Financial Outlay" which gives the details in the order of priority and the payments thereof proposed to be made to the members, shareholders and all stakeholders etc. For the sake of convenience, the same is reproduced herein below: Clause 1.3 Distribution of the Total Financial Outlay: The order of priority of distribution using the Total Financial Outlay, is set out below: Order of Priority Total Financial Outlay Amount (in Rs.) (in Crores) First Estimated CIRP Costs. 234 or any lower amount Second Excess CIRP Costs to be determined in terms of Section 3.2.2 - Third Liquidation value and other dues owed to workmen. 19.33 Fourth Liquidation value due to Operational Creditors (other than workmen) is NIL. Consequently, amount required to be paid to Operational Creditors for Liabilities until the Insolvency Commencement Date is NIL. However, as part of this Plan it is being proposed that the dues owed by the Company to certain Operational Creditors (to each of whom the Company, as on the Insolvency Commencement Date, owes up to Rs. 3,00,000 (Rupees Three lakhs) and whose details are set out in (Annexure 9), shall be discharged. Fifth Liquida....
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.... the period of twenty-four months preceding the liquidation commencement date; and (ii) Debts owed to a secured creditor in the event such secured creditor has relinquished security in the manner set out in section 52; iii. Wages and any unpaid dues owned to employees other than workmen for the period of twelve months preceding the liquidation commencement date; iv. Financial debts owed to unsecured creditors; v. The following dues shall rank equally between and among the following: (i) Any amount due to the Central Government and the State Government including the amount to be received on account of the Consolidated Fund of India and the Consolidated Fund of a State, if any, in respect of the whole or any part of the period of two years preceding the liquidation commencement date; (ii) Debts owed to a secured creditor for any amount unpaid following the enforcement of security interest; vi. Any remaining debts and dues; vii. Preference shareholders, if any; and viii. Equity shareholders or partners, as the case maybe. (2) Any contractual arrangement between recipients under sub-section (1) with equal ranking, if disrupting the order of priority under that sub-s....
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....er for maximization of the value of assets of such persons, to promote entrepreneurship, availability of credit, and balance the interests of all stakeholders including alteration in the priority of the payments of the government dues, to establish an Insolvency and Bankruptcy Fund and matters connected therewith or incidental thereto." Thus, the preamble of the I&B Code aims to promote resolution over liquidation. The purpose of resolution is maximization of value of assets of the 'Corporate Debtor' and thereby for all creditors. It is not maximization of value for a 'stakeholder' or 'assets of a stakeholder' such as creditors and to promote entrepreneurship, availability of credit and balance the interests. The first objective is 'resolution'. The second objective is 'maximization of the value of assets of the 'Corporate Debtor' and third objective is 'promoting entrepreneurship, availability of credit and balancing the interests'. This objective of the I&B Code is sacrosanct. The said objective of the I&B Code is also affirmed by the Hon'ble Supreme Court in Arcelormittal India (P.) Ltd. v. Satish Kumar Gupta 150 SCL 354....
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....hieve the object of the Code, liquidation of a company can only be a last resort, wherein, all efforts for brining Resolution Plan were failed or it cannot be found workable in the larger public interest. Hence, now the approval of Resolution Plan by this Adjudicating Authority is rule as per the apex court's decision in the matter of K. Sashidhar (supra) as discussed above. The Hon'ble Supreme Court in its recent judgment in K. Sashidhar (supra). Comprising of Hon'ble Justice A.M. Khanwilkar and Hon'ble Justice Ajay Rastogi observed that: "33. As aforesaid, upon receipt of a "rejected" resolution plan the adjudicating authority (NCLT) is not expected to do anything more; but is obligated to initiate liquidation process under section 33(1) of the I&B Code. The Legislature has not endowed the adjudicating authority (NCLT) with the jurisdiction or authority to analyze or evaluate the commercial decision of the CoC much less to enquire into the justness of the rejection of the resolution plan by the dissenting financial creditors. From the legislative history and the background in which the I&B Code has been enacted, it is noticed that a completely new approach has ....
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....h other requirements as maybe specified by the Board. The Board referred to is established under section 188 of the I&B Code. The powers and functions of the Board, directly or indirectly, pertain to regulating the manner in which the financial creditors ought to or ought not to exercise their commercial wisdom during the voting on the resolution plan under section 30(4) of the I&B Code. The subjective satisfaction of the financial creditors at the time of voting is bound to be a mixed baggage of variety of factors. To wit, the feasibility and viability of the proposed resolution plan and including their perceptions about the general capability of the resolution applicant to translate the projected plan into a reality. The resolution applicant may have given projections backed by normative data but still in the opinion of the dissenting financial creditors, it would not be free from being speculative. These aspects are completely within the domain of the financial creditors who are called upon to vote on the resolution plan under section 30(4) of the I&B Code." 26. In the backdrop of the settled position of law and the decision of the Apex Court in Swiss Ribbons (P.) Ltd. (supra) ....
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....olution Plan in accordance with its terms and conditions detailed in Clause No. 11.1, 11.1.1 to 11.1.20 cannot be allowed, as those are the subject matter of the various concerned Competent Authorities and the jurisdiction lies upon them to make any concession, waiver, exemption and grant any relief. The Resolution Applicant(s) may approach to the Competent Authorities/Government/Semi-Government/Central and State Governments and other statutory bodies, as the case maybe, as per the need and requirement for exemption, waiver and/or concession for the effective implementation of the Resolution Plan. This Resolution Plan cannot purportedly be used for getting any concession, waiver/relief or exemption which is against the provisions of the existing laws of the land in force. The instant Resolution Plan cannot be used for the purpose which is against the Public Policy or contrary to the laws or in contravention of Sub-Section 2(e) of Section 30. 28.1 Further, it is pertinent to mention herein that Resolution Applicant(s) itself in Clause No. 11.2 of the Resolution Plan has clarified that reliefs and the waivers as being sought for by the Resolution Applicant(s) as prayed for from the ....