TaxTMI 
TaxTMI 
2019 (11) TMI 842
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....lause No. 6.1.2' which relates to participation of the 'Dutch Trustee' (Administrator) in the meeting of the 'Committee of Creditors'. The agreed 'Terms & Conditions' of 'Cross Border Insolvency Protocol', as excluding clause 6.1.2 reads as follows: "CROSS-BORDER INSOLVENCY PROTOCOL THIS PROTOCOL IS DATED [●] AND ENTERED INTO BETWEEN: (1) Ashish Chhawchharia, in his capacity as the Resolution Professional of Jet Airways (India) Limited, a company incorporated under the provisions of the Companies Act, 1956, and an existing company under the Companies Act, 2013, and having its registered office at Siroya Centre Sahar Airport Road, Andheri (East) Mumbai 400099, India (the "Company"), appointed by the order of the National Company Law Tribunal, Mumbai Bench, India, ("NCLT") dated 20 June 2019 (the "RP"); and (2) Rocco Mulder, in his capacity as the administrator in bankruptcy of the Company appointed by Noord-Holland District Court, Trade, Sub-district and Insolvency in the Netherlands ("Dutch Bankruptcy Court") by its order dated 21 May 2019 (the "Dutch Trustee"), each a "Party" and together the "Parties". BACKGROUND: ....
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.... 1.1.2 Headings do not affect the interpretation of this Protocol. 2 PURPOSE 2.1.1 The Parties acknowledge that while the Indian Proceedings is one that is focused on the revival/resolution of insolvency of the Company and the maximization of the value of its assets for the benefit of all its stakeholders, the main objective of the Dutch Proceedings is to deal with the liquidation of the assets of the Company located in the Netherlands and therefore, agree: (a) this Protocol represents a statement of intentions and guidelines designed to minimize the costs and maximize value of assets/recoveries for all creditors of the Proceedings, by promoting the sharing of relevant information among the Parties and the international coordination of related activities in the Proceedings, while respecting the separate interests of creditors and other interested parties to the Proceeding, and the independence, sovereignty, and authority of the NCLT/NCLAT and Dutch Bankruptcy Court. (c) in recognition of the substantive differences among the Proceedings in both jurisdictions, this Protocol shall not impose on the RP or the Dutch Trustee any duties or obligatio....
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....on, sovereignty, and authority of NCLT, NCLAT and Dutch Bankruptcy Court. 4 EFFECTIVENESS 4.1.1 The terms of this Protocol shall come into effect upon receiving an approval on its terms from (i) NCLT/NCLAT; and (ii) the Dutch Bankruptcy Court or other appropriate adjudicating authority in Netherlands responsible for overseeing the Dutch Proceedings. 5 COMMUNICATION AND INFORMATION 5.1.1 The Parties undertake to liaise with each other on matters related to the Company in which they have a material interest. 5.1.2 Each Party shall keep the other Party adequately informed as far in advance as possible of any relevant information and material developments in matters in which the other Party has a material interest, (and may require preparation and/or travel by the Parties or the authorized representative of the CoC) including but not limited to any creditors' or shareholders' meetings, statutory or administrative deadlines or court hearings. The Dutch Trustee acknowledges that the RP may be required to and may disclose all information received by it from the Dutch Trustee to the CoC, under and in accordance with the Insolven....
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....ke any decision under the Dutch Proceedings that would adversely impact the interests of the Company or the creditors. In the event it becomes necessary for the Dutch Trustee in compliance of the Dutch Bankruptcy Court or any other court, or under any applicable law, to take any decision that might adversely impact the interests of the Company or the creditors, the Dutch Trustee shall give advance intimation of such decision to the RP. (k) In the event a resolution plan for the Company is submitted to the NCLT, the Dutch Trustee shall facilitate the submission (by the Company) of a consistent reorganization plan in the Dutch Proceedings ("schuldeisersakkoord") in order to implement the resolution plan in the Dutch jurisdiction incorporating the payout mechanism that is included in such resolution plan so submitted to the NCLT for distribution of various amounts to various stakeholders including the creditors of the Company, in accordance with applicable Dutch laws. 7.1.2 The Dutch Trustee shall seek inputs, notify the RP and consult the RP, and will be mindful of the Indian Proceedings prior to any material decision being taken in the Dutch Proceedings, which may,....
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....r, encumber, alienate, abandon or dispose of any asset of the Company in or outside the Netherlands or any legal right or beneficial interest therein and make all reasonable attempts and efforts, at all times, in preventing any third party/creditor from undertaking any such action anywhere during the course of the Proceedings; or (q) commence any judicial or non-judicial proceedings affecting any asset of the Company in or outside the Netherlands. 8.1.4 In the event, the Dutch Trustee conducts a sale of any of the assets of the Company, subject to Dutch Law, the Dutch Trustee shall hold the sale proceeds of the sale of any assets of the Company in a Bankruptcy Account: IBAN NL76KASA0222622202 "Ten name van Mr R Mulder qq curator in het faillissement van Jet Airways (India) Limited". The distribution of such sale proceeds shall be made in consultation with the RP. 8.1.5 If in the course of the Proceedings, the Dutch Trustee learns or believes that a creditor or a third party having material interest in a particular asset whose value and/or recovery is at risk, is intending to sell, dispose off or foreclose a particular asset of or belonging to the Company ....
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....represent to the RP whether and on which basis, he has admitted or denied the Claim in the Dutch Proceedings. In this respect, the Dutch Trustee and RP shall verify such claims in accordance with applicable laws. 10 COSTS 10.1.1 On behalf of the CoC, the RP represents vis-à-vis the Dutch Trustee that it is the intention of the CoC to include the fees and costs incurred by the Dutch Trustee and any advisor/professional engaged by him for the purposes of the Dutch Proceedings as part of the insolvency resolution process costs (as defined under Section 5(13) of the Indian Insolvency and Bankruptcy Code, 2016) for the same to be paid in accordance with the Indian law, subject to verification by the RP and approval by the CoC, provided that: (a) such fees and costs have not already been recovered by the Dutch Trustee from proceeds of the sale of any assets of the Company in the Netherlands; (r) the claims of the members of the CoC filed in accordance with Clause 9 and admitted by the RP will be provisionally recognized by the Dutch Trustee as being submitted in the Dutch Proceedings. (s) the amount of any legal and professional fees in....
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....6 in respect of the Company which has become final or approval of the reorganization plan under Dutch law ("schuldeisersakkoord"), which has become final, whichever is later, unless agreed otherwise before such date; or (b) the passing of a liquidation order against the Company by the NCLT. 12.2.2 In this respect, it should be noted that in the event of the liquidation of the Company, the liquidators appointed for the Company both in India and in the Netherlands may enter into a similar arrangement as this Protocol, for purposes of coordinating the liquidation of the Company in both jurisdictions. 12.3 Rights cumulative 12.3.1 The rights and remedies of each Party provided in this Protocol are cumulative and not exclusive of any rights or remedies provided by law. 12.4 Amendments and waivers 12.4.1 The terms of this Protocol shall not be waived, amended, terminated orally or in any other manner (including, without limitation, pursuant to a resolution plan) except by a written agreement signed by each Party, and such waiver, amendment or termination shall not come into effect unless approved, where applicable, by both the NCLT/NC....
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....e RP and the Dutch Trustee. 13.1.2 Each Court shall have sole jurisdiction and power over the conduct of the Proceeding in that forum; the appointment of the RP and the Dutch Trustee and their professionals, their retention, tenure in office, and compensation; and the hearing and determination of matters arising in that forum. 13.1.3 Nothing in this Protocol is intended to interfere with the exercise of jurisdiction by each of the Courts in the Proceedings, or to interfere with the natural rules or ethical principles by which the RP of the Dutch Trustee is bound according to applicable national law and professional rules." 2. Clause 6.1.2 of the aforesaid Agreement (Cross Border Insolvency Protocol) suggested by the Administrator reads as follows : "6.1.2 [The Dutch Trustee shall be invited to participate in the meetings of the CoC as an observer but shall not have a right to vote in such meetings.]" 3. The said clause 6.1.2 as suggested by the 'Resolution Professional' at the instance of the 'Committee of Creditors' reads as follows: "6.1.2 The Dutch Trustee shall not entitled to participate in the meetings of the CoC" 4. In the present....