AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (11) TMI 842
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....ipation 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: (A) The Company is subject to parallel insolvency proceedings in India and in t....
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....s 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 obligations (i) that may be inconsistent with or that may conflict with the duties or obligations to which the Parties are subject under applicable law, or (ii) that are not in the ....
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....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 Insolvency and Bankruptcy Code 2016. 5.1.3 Each Party shall share such information and data regarding the Company and its assets and liabilities, that is publicly available, and may, where permitted under applicable laws, share non-public information with the other Party, ....
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....ts 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, inter alia, include: (a) matters relating to any proposal or approval of a plan of reorganization or a resolution plan or plan of compromise or any other similar arrangement in the Dutch Proceedings; (l) matters relating to assuming, ratifying, rejecting, repudiating, modifying or assigning executory contracts having a material imp....
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....mpany 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 or its beneficial interest therein in Netherlands, then the Dutch Trustee shall immediately make all reasonable attempts to gather information relating to the purported transaction and soon after shall provide/convey any and all such information relating to the transaction in question to the RP. Where practicable and consistent with his duties under applicable laws, the Dutch Trustee shall consult with the RP about possible steps an....
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....e 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 incurred by the Dutch Trustee has been approved by the Dutch Court; 10.1.2 In the spirit of cooperation, the Dutch Trustee and the RP shall be treated equally. 11 STAYS OF PROCEEDINGS 11.1.1 The Dutch Trustee takes note of the order passed by the NCLT on 20 June 2019 as detailed out in the Background above, which imposes a moratorium on, inter alia, the following actions under Section 14 of the Indian and Bankruptcy Code, 2016: (a) the institution of suits or continuation of pending suit....
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....risdictions. 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/NCLAT and the Dutch Courts after notice and a hearing. 12.5 No deemed waivers 12.5.1 No failure to exercise, nor any delay in exercising, by a Party, any right or remedy under this Protocol will operate as a waiver. No single or partial exercise of any right or remedy will prevent any further or other exercise or the exercise of any other right or remedy. 12.6 Third party rights 12.6.1 Except where this Protocol expressly provides otherwise: (a) it contains no stipulations for the benefit of a third party (derdenbedingen) which may be invoked by a third party against a Party; and (w) where this Protocol contain....
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....lows : "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 case, we make it clear that the 'Committee of Creditors' have no role to play as the agreement reached between the 'Dutch Administrator' and the 'Resolution Professional' of India is on the basis of the direction of this Appellate Tribunal. In spite of the same, unfortunately the 'Committee of Creditors' interfered with the matter and put its view to the 'Resolution Professional' resulting into difference of the suggestions. 5. 'The Dutch Trustee' is equivalent to the 'Resolution Professional' of India, therefore, as per law he has a right to attend the meeting of the 'Committee of Creditors'. However, as we do not want to overlap the power between one and other, we are of the view that the suggestion given by the 'Dutch Trustee' (Administrator) as shown in its 'Clause 6.1.....