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2018 (9) TMI 1895
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.... and ICICI Bank Ltd. (ICICI) and called for the first meeting of the COC on 27.04.2017 in which it was resolved that Mr. Purushottam Ram Singhania, IRP be replaced with another Resolution Professional Mr. Anil Goel. CA No.60/2017 was filed and order was passed on 31.05.2017 appointing Mr. Anil Goel as Resolution Professional (RP). The CIRP period of the Corporate Debtor was expiring on 11.09.2017. In its fourth meeting on 05.09.2017, the COC authorized the RP to file an application for extension of CIRP period in accordance with Section 12 (2) of the Code for the said purpose CA No.140 of 2017 was filed by the Resolution Professional. By order dated 12.09.2017, the period of completion of CIRP was extended for another 90 days. 3. The instant CA No.84/2018 is filed by the RP under Section 31 of the Code read with Regulation 39 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (hereinafter referred to as Regulations) for approval of resolution plan submitted by RMS Employees Welfare Trust, stated to be a Private Trust registered under Indian Trust Act, 1882. The copy of the Trust Resolution Plan is stated to be ....
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....of the Civil Writ Petition before the Hon'ble High Court of Punjab and Haryana, the employees of the corporate debtor approached the RP vide an email dated 12.12.2017 and expressed their interest to submit a resolution plan for revival of the corporate debtor in order to safeguard the livelihood of hundreds of people and that pursuant thereto the employees formed the Trust in the name and style of "RMS Employees Welfare Trust" (Trust) on 03.01.2017 and the Trust submitted its resolution plan to the RP via email dated 10.01.2017. It is stated that thereafter, the RP examined the Trust resolution plan and found the same to be compliant with the requirements of Section 30 (2) of the Code read with Regulation 38 of the Regulations and therefore, the RP circulated the plan to the members of the COC who discussed the plan in the 7th and 8th meetings held on 09.03.2018 and 23.03.2018 respectively and after discussion, voting on the plan was conducted by the RP with the following results:- Member of COC % Voting Share Assent/Dissent SBI 96.04 Assent ICICI 0.69 Assent HDFC 3.27 Abstained 6. It is stated that during the 8th meeting the COC, the prom....
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.... of RMS Employees Association and RMS Employees Welfare Trust were filed by diary No.2549 dated 18.07.2018. Certificate in Form H as per Regulation 39 (4) as amended by the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Third Amendment) Regulations, 2018 was filed by the RP by diary No.2763 dated 30.07.2018. 11. During the course of the hearing, the authorised representative for the RP stated that the requirements of Section 31 of the Code read with Regulation 39 of the Regulations were satisfied in the present case and that the resolution plan submitted by RMS Employees Welfare Trust was approved by the COC in its 8th meeting held on 23.03.2018 with more than 75% of voting share of the financial creditors and therefore, the resolution plan be approved by the Adjudicating Authority under the provisions of Section 31(1) of the Code. The learned counsel for the promoter director was present and stated that there was no objection to the approval of the resolution plan. 12. We have carefully considered the submissions of the authorized representative for the RP and the authorized representative for the resolution applicant, promote....
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....m 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." 16. We have stated above that the RP has filed an affidavit dated 28.03.2018 regarding the compliance of the provisions of Section 30 of the Code etc. Further, Form H has also been filed by the RP by diary No.2763 dated 30.07.2018 in which the compliance of the resolution plan is given as under :- Section of the Code/Regulat....
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.... liquidation value due to operational creditors? (c) liquidation value due to dissenting financial creditors? Pg. 331 & Pg.365 of application Yes Regulation 38(1A) Whether the resolution plan includes a statement as to how it has dealt with the interests of all stakeholders? Pg. 349 of application Yes Regulation 38(2) Whether the Resolution Plan provides: (a) the term of the plan and its implementation schedule? (b) for the management and control of the business of the corporate debtor during its term? (c) adequate means for supervising its implementation? Clause E Pg. 341 Clause F Pg. 342 Clause G Pg. 344 Yes 38(3) Whether the resolution plan demonstrates that - (a) it addresses the cause of default? (b) it is feasible and viable? (c) it has provisions for its effective implementation? (d) it has provisions for approvals required and the timeline for the same? (e) the resolution applicant has the capability to implement the resolution plan? Reasons of losses at Pg no 307 of application Justification and Projected profitability statement at Pg No- 349 & 361 Not Applicable No....
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....admitted claim of Rs. 97.35 crores (refer to Annexure-I of Form H) and over and above the proposed amount of Rs. 10.00 crores under the resolution plan, SBI has been paid an amount of Rs. 35.00 crores by the promoters from their personal assets, in discharge of their personal guarantees. Taking into consideration the extent of payments to the financial creditors and the liquidation value, it was considered necessary to hear the views of the members of COC namely SBI, HDFC Ltd. and ICICI Bank Ltd. Order in this regard was made on 04.05.2018. The three members of the COC were present through their representatives on 16.05.2018 and all the financial creditors representatives stated that they have nothing to say other than what was recorded in the meeting of COC. Further, the representative of HDFC Ltd. stated that they abstained from voting because no amount was being offered to HDFC Ltd. The Assistant Manager of HDFC Ltd. recorded his statement on 11.06.2018 that the dues of HDFC Ltd. have been cleared by the promoter director of the suspended Board of Directors, Shri Suman Jolly in his personal capacity. Therefore, we find that during the course of hearing no objections have been ra....
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.... resolution plan-page 344 of the application). Section 30(2) (e):- In para 4 of Form H, the RP has certified that the resolution plan does not contravene any of the provisions of the law for the time being in force. Similar certificate is also given in the affidavit dated 28.03.2018 of the RP (Annexure-O of the petition). Section 30(2)(f):- The RP has furnished a certificate dated 28.03.2018 (Annexure-O of the application) stating that the resolution plan submitted by the Trust complies with the requirements of the Code and the Regulations, including the amendments made to the Regulations on 07.11.2017. It is further certified that the Trust (including its trustees) are eligible to submit the resolution plan and are not disqualified under any of the categories mentioned in Section 29A of the Code. It is stated in the certificate dated 28.03.2018 (supra) that requirement of Section 30(1)(b) of the Code read with Regulation 38(1)(b) of CIRP Regulations has been complied with, as except of Rs. 0.05 lacs to the workers no liquidation value is due to any other operational creditors and resolution plan provides for payment of Rs. 0.05 lacs to the workers within a period of one mont....
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.... the status on the implementation of the resolution plan. We are therefore, of the view that the resolution plan has provisions for its effective implementation. 21. We find that in para C.4 of the minutes of the meeting of COC held on 23.03.2018 (Annexure Q of the petition), it is inter alia stated that no payment under the resolution plan is envisaged for Government dues. The matter relating to the waiver of Government dues, including waiver of MAT liability under Section 115J of the Income Tax Act 1961, may be considered by the respective Government Department. 22. Para No.C.3 of the minutes of the meeting of COC held on 23.03.2018 (Annexure -Q of the petition) inter alia states that the promoters of the corporate debtor and the SBI informed the RP that for release of their personal guarantee, promoter intends to pay certain dues through a compromise with the members of the creditors and agreement between the promoters and the bank in this regard has been executed and the banks have requested the RP to submit the same also to the Adjudicating Authority for information. We find that a copy of guarantee-cum-indemnity agreement dated 27.03.2018 has been filed as Annexure-R of....