TaxTMI 
TaxTMI 
2019 (5) TMI 518
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....ember. - The instant application (IA) 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 ....
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.... initiation of Corporate Insolvency Resolution Process against Alok Industries Limited (hereinafter referred 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 Re....
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....tion Applicants submitted Resolution Plan dated April 12, 2018, on April 13, 2018. Considering the paucity of time with respect 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 nu....
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....Corporate Debtor and directed the RP to convene a meeting of CoC and present the Resolution Plan submitted by the Resolution Applicants 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 thres....
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....ded by the board of directors of JM Financial Asset Reconstruction Company Limited dated March 23, 2018 certifying (a) the latest shareholding pattern of promoters 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 Limite....
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....tion or consortium under the Reserve Bank of India guidelines. (viii) Annexure 3 of the Resolution Plan read with the Affidavits submitted by JM Financial Asset Reconstruction 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 hi....
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....oring committee ("MC"), which is comprised of the erstwhile resolution professional (as he will become after the Resolution Plan) and 4 representatives of the financial creditors. During the period following 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 con....
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.... 3.21 of the Resolution Plan, if there are any dissenting financial creditors, the liquidation value payable to such dissenting financial creditors will be paid out of the settlement amount payable to the assenting financial creditors. Such amounts 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....
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....lution Plan read with the undertaking submitted by JM Financial Asset Reconstruction Company Limited and RIL respectively further sets out the details as regards the (a) identity; (b) conviction for any offence, if any, during the preceding 5 years: (c) criminal proceedings pending, if any; (d) 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 2....
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....or of Alok Industries Limited and having following shares. The Applicant No. 1 is holding 65,60,000 shares and the Applicant No. 2 is holding 10,00,000 shares of Alok Industries Limited as on 28.08.2018. It is submitted by the applicants that applicants carried out the inspection of the records of the matter and on perusal of the Resolution Plan submitted by the RP, it is observed that, Resolution 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 d....
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....f GSA. It is further stated that under the said guaranteed demand by the Corporate Debtor in GSA, the applicant would have to ensure the supply of the said guaranteed quantity of gas at any point of time to the Corporate Debtor. A copy of the Gas Sale Agreement dated 27.05.2013 is annexed with IA as Annexure A. The applicant has further stated that as the said natural gas being rare natural resource, there has been regular industry practice across 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 ....
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.... the Resolution Plan. It is stated by the applicants that as per Section 31 of the Code, once the Resolution Plan is approved by the Adjudicating Authority, it becomes binding on the operational creditors of the Corporate Debtor Company. And since the applicants are vitally interested in the Resolution Plan, as it is binding upon them and therefore, if the applicants' interests are overlooked in the Resolution Plan, it will seriously affect the interests of the operational 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....
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.... claim by the RP and such inclusion shall not affect the validity of any decision taken by the CoC prior to such inclusion. Consequently, the applicant has been included as a part of the member of the CoC, under Regulation 28 of the CIRP Regulations, and therefore, any decisions taken by the CoC prior to such date of admission will be valid and binding on the applicant. It is evident from the documents relied "upon by the applicant itself in the Interlocutory Application IA 282 of 2018, the question of reclassification 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 De....
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....ibution of the assets, Resolution Applicants have followed Section 53 (1) of the Code. Further, it is established principle of law that Resolution Applicants and or RP while distributing the assets amongst the shareholders/members, promoters has to follow the methodology as given under section 53 (1) of the Code only. More so, in view of the recent judgement given by Hon'ble Supreme Court in K. Sasidhar v. Indian Overseas Bank, decision of the CoC has to be given primacy. 17.6 Reply of Respondents in IA No. 41 of 2019 In the instant application, ld. Lawyer 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....
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....at commercial aspects of a resolution plan are to be dealt with by an expert body such as the Committee of Creditors. It was held that the Hon'ble NCLT had no jurisdiction to sit in appeal over the same, unless such decision of the Committee of Creditors is perverse or contrary to the provisions of the Code or any other existing law. In this regard, it is also pertinent to refer to the recent decision given by the Hon'ble Supreme Court in K. Sasidhar v. Indian Overseas Bank. It is held that supremacy of CoC and their commercial wisdom cannot be questioned. It is also observed that National 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 o....
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....tion Applicant or against the CoC for not considering their claim while approving the Resolution Plan knowing fully that CIRP is a time bound process. 20.3 The moment IA No. 259 of 2018 is filed, all the above applicants have come as intervener, opposing the Plan. The applicants (Intervener Applicants) are not only delayed one but the conduct of the applicants goes on to show that they want to stall the proceedings for the reasons best known to them. Had there been any bona fide action/claim, they would have approached the Adjudicating Authority on the very threshold of rejection of their claim either 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 Compan....
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....the risk of postponing payments for better future prospects for the entity. The Committee concluded that for the process to be rapid and efficient, the "I&B Code' will provide that the creditors committee should be restricted only the 'Financial Creditors'. 20.6 That with regard to IA No. 41 of 2019 filed by the Gail India Limited, their status has already been considered as Operational Creditor in IA 413 of 2018. Thus, in the event, only liquidation value is payable to the operational creditors and such amount shall be paid in priority to the amount payable to the financial creditors. Further, Resolution 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 fa....
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....Resolution Plan was again sent for re-look to CoC vide order dated 11.06.2018 in view of the Ordinance 2018, consequent upon which IA 135 of 2018 and IA 136 of 2018 became infructuous. But the Applicant's rights in P-67 of 2018 were kept reserved for final hearing. However, a provision has been made in the Total Financial Outlay of the Resolution Plan that in the event there are dissenting financial creditors, then the liquidation value due to the such dissenting financial creditors will be discharged out of the financial creditors settlement amount, in priority to any payments being made to the other financial creditors 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 appro....
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....onal, this amount includes the amount due to the Company's workmen as on the insolvency commencement date (including the liquidation value to the company's workmen) amounting to Rs. 19,33,00,000/- (Nineteen Crores Thirty-three Lakhs). 21.4 The Resolution Applicants have undertaken insolvency resolution of the Company/Corporate Debtor in the manner as stated in Clause 1.2 at Page No. 5 of the Resolution Plan under the head - "Key steps of the Plan" which is the part and parcel of the Resolution Plan as well as the application. The said Resolution Plan also includes the distribution of financial outlay in Clause No. 1.3 at Page 14 under the head "Distribution 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 amou....
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....cial outlay is written as Rs. 6,252 crores whereas the actual total comes to Rs. 6,247.17 crores. 22. At this juncture, we find it expedient to refer section 53 of the Code i.e. distribution of assets: Section 53(1) Notwithstanding anything to the contrary contained in any law enacted by the Parliament or any State Legislature for the time being in force, the proceeds from the sale of the liquidation assets shall be distributed in the following order of priority and within such period and in such manner as maybe specified, namely: - i. The insolvency resolution process costs and the liquidation costs paid in full; ii. The following debts which shall rank equally between and among the following: - (i) Workmen's dues for 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 credi....
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....rofessional shall give notice of each meeting of the committee of creditors to - (a) member of [Committee of creditors, including the authorized representatives referred to in sub-sections (6) and (6A) of section 21 and sub-section (5)]; (b) members of the suspended Board of Directors or the partners of the corporate persons, as the case maybe; (c) operational creditors or their representatives if the amount of their aggregate dues is not less than ten per cent of the debt. 25. To decide the issue, it will be pertinent to notice the very object of the 'IB Code', 'Resolution' and Role of CoC. The objective of the 'I&B Code' "The objective of the Insolvency and Bankruptcy Code, 2016 is to consolidate and amend the laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individuals in time bound manner 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 Fu....
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....oes not allow liquidation of a corporate debtor' directly. It allows liquidation only on failure of corporate insolvency resolution process'. It rather facilitates and encourages resolution in several ways. The said objective of the Resolution Plan is affirmed in the decision in the matter of K. Sashidhar (supra). The Supreme Court has observed that National Company Law Tribunal has no jurisdiction and authority to analyze or evaluate the commercial decision of the Committee of Creditors (CoC) to enquire into the justness of the rejection of the resolution plan by the dissenting financial creditors. Keeping in view such object behind the enactment of the Code, intention of the Legislature is, that priority is to be given to the resolution than liquidation in the larger interests of the public, workmen, stakeholders and the other employees of the Corporate Debtor in the interest of justice and in order to achieve 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 Adjudicati....
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....thority (NCLT) is circumscribed by Section 31 limited to scrutiny of the resolution plan "as approved" by the requisite per cent of voting share of financial creditors. Even in that enquiry, the grounds on which the adjudicating authority can reject the resolution plan is in reference to matters specified in Section 30(2), when the resolution plan does not confirm to the stated requirements. Reverting to Section 30(2), the enquiry to be done is in respect of whether the resolution plan provides: (i) the payment of Insolvency resolution process costs in a specified manner in priority to the repayment of other debts of the corporate debtor, (ii) the repayment of the debts of operational creditors in prescribed manner, (iii) the management of the affairs of the corporate debtor, (iv) the implementation and supervision of the resolution plan, (v) does not contravene any of the provisions of the law for the time being in force, (vi) conforms to such 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 financia....
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....ich are pending by or against the Company/Corporate Debtor as those are the subject matter of the concerned Competent authorities having their proper/own jurisdiction to pass any appropriate order as the case maybe. The Resolution Applicants on approval of the Plan may approach the Competent Authorities/Courts/Legal Forums/Offices - Govt, or Semi. Govt./State or Central Govt, for appropriate relief(s) sought for in Clause No. 3.2.3 (iii) of the Resolution Plan at Page No. 19. 28. Further with regard to Clause No. 11.1, 11.1.1 to 11.1.20 of the Resolution Plan, and the prayer (f) of the Clause No. 35 and pleadings, sub-clause (n) of Clause No. 33 of application IA 259 of 2018, wherein, the Resolution Applicant(s) pray(s) for passing of an appropriate order/direction by this Adjudicating Authority for grant of relief, concession or dispensation or exemption, as the case maybe, required for implementation of the transactions contemplated under the Resolution 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 th....