TaxTMI 
TaxTMI 
2019 (3) TMI 1706
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....ion Plan from this Adjudicating Authority under Section 31 of the Insolvency and Bankruptcy Code. The other I.As. are filed by either financial creditors or operational creditors including Government authorities or by other stakeholders. Since all these I.As. arise out of the same CIRP, all the I.As were heard together and are being disposed of by this common order. For the sake of convenience, a list of all the I.As. and Intervention Petitions filed in post admission stage of the main IB Petition Nos.39 & 40 of 2017, can be described well through the following chart: Sl. Case No. Under Section Name of the Parties 1 IA 14 of 2019 in/with CP(IB) 39 of 2017 60(5) IBC Oil & Natural Gas Corporation Ltd. v. Satish Kumar Gupta 2 IA 15 of 2019 in CP(IB) 39 & 40 of 2017 60(5) IBC Arkay Logistics Ltd. v. State Bank of lndia 3 IA 16 of 2019 in IA 468 of 2018 in CP(IB) 39 & 40 of 2017 60(5) IBC State Tax Officer v. Essar Steel India Ltd. 4 IA 52 of 2019 in/with CP(IB) 40 of 2017 60(5) IBC MBTC Ltd. v. Satish Kumar Gupta RP of Essar Steel India Ltd. 5 IA 53 of 2019 in/with CP(IB) 40 of 2017 60(5) IBC Bharat Petroleum Co....
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.... in/with CP(B) 39 & 40 of 2017 43(1) IBC The Resolution Professional for Essar Steel India Ltd. v. EPC Offshore Subsea Projects Ltd. 25 IA 433 of 2018 in/with CP(IB) 39 & 40 of 2017 43(1) IBC The Resolution Professional for Essar Steel India Ltd., v. India Coke & Power (P.) Ltd. 26 IA 434 of 2018 in CP(1B) 39 & 40 of 2017 60(5) IBC The Resolution Professional for Essar Steel India Ltd. v. L & T Infrastructure Finance Co. Ltd. 27 IA 435 of 2018 in/with CP(IB) 39 & 40 of 2017 60(5) IBC Orissa Stevedores Ltd. v. Satish Kumar Gupta 28 IA 437 of 2018 in/with CP(IB) 39 & 40 of 2017 7 IBC Essar Steel Asia Holdings Ltd. v. Satish Kumar Gupta . 29 IA 438 of 2018 in CP(IB) 39 & 40 of 2017 60(5) IBC Gail (India) Ltd. v. Satish Kumar Gupta RP of Essar Steel India Ltd. 30 IA 440 of 2018 in/with CP(IB) 39 & 40 of 2017 60(5) IBC Arkay Logistics Ltd. v. State Bank of India 31 IA 441 of 2018 in/with CP (IB) 39 & 40 of 2017 60(5) IBC Essar Bulk Terminal Ltd. v. State Bank of India 32 IA 442 of 2018 in/with CP (IB) 39 of 2017 60(5) IBC Berger Becker Coatings (P.) Ltd. v. Essar Steel India Ltd. 33 ....
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.... 82 of 2018 in CP(IB) 39 & 40 of 2017 7 IBC State Tax Officer v. Satish Kumar Gupta RP of Essar Steel India Ltd. 51 IA 125 2019 in IA 482 of 2018 in/with CP(IB) 39/2017 & CP(IB) 40/2017 424 Hill View Hire Purchase (P.) Ltd. v. Satish Kumar Gupta RP of Essar Steel India Ltd. 52 IA 126 2019 in IA 483 of 2018 in/with CP(IB) 39/2017 CP(IB) 40/2017 424 D.R Patnaik v. Satish Kumar Gupta RP of Essar Steel India Ltd. 53 IA 436 of 2018 in CP (IB) 39 & 40 of 2017 60(5) IBC COC for Essar Steel India Ltd. Through State Bank of India v. Essar Steel India Ltd. 54 IA 439 of 2018 in CP(IB) 39 & 40 of 2017 60(5) Standard Chartered Bank. v. Satish Kumar Gupta 55 IA 64 of 2019 in CP(IB) 39 & 40 of 2017 60(5) IBC Dilip Oommcn v. State Bank of India 56 IA 430 of 2018 in IA 431 of 2018 in/with CP (IB) 39 & 40 of 2017 60(5) IBC Essar Steel Asia Holdings Ltd. . v. Satish Kumar Gupta 57 Inv. P. 77 of 2018 in CP(IB) 39 & 40 of 2017 7 Arcelormit Lal India (P.) Ltd. (Intervener),Essar Steel Asia Holdings Ltd. v. Satish Kumar Gupta 2. As per material available on record, out of these applications, some of the applicati....
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.... 20 IA 444 of 2018 Kamaljeet Singh Ahluwalia. v. State Bank of India. Disposed of 28.02.2019 21 IA 445 of 2018 Signode India Ltd. v. State Bank of India Disposed of 28.02.2019 22 IA 447 of 2018 Timken India Ltd.. v. State Bank of India Disposed of 28.02.2019 23 IA 448 of 2018 Hind Aluminium Industries Ltd. v. State Bank of India Disposed of 28.02.2019 24 IA 440 of 2018 Arkay Logistics Ltd. v. State Bank of India Disposed of 28.02.2019 25 IA 441 of 2018 Essar Bulk Terminal Ltd. v. State Bank of India Disposed of 28.02.2019 3. Therefore, it is evident that rest of the applications are not yet disposed. Hence, the same are taken up for disposal simultaneously along with the main I.A. No.431 of 2018, which are described as under:- Sl. No. Case No. Parties 1 IA 28 of 2018 Dakshin Gujarat Vij. Co. Ltd. v. Essar Steel Ltd. 2 IA 431 of 2018 The Resolution Professional for Essar Steel India Ltd. 3 IA 443 of 2018 Gujarat Energy Transmission Corporation Ltd. v. Satish Kumar Gupta KP of Essar Steel India Ltd.....
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....Union of India The Amount claimed in pending I.As. are described as under Sl. No Case No. U/s. Name of the Parties Amount claimed (Rs.) 1 IA 49 of 2018 Essar Power Ltd. 912,69,90,753 2 IA 50 of 2018 Bhander Power Ltd. 18,09,79,500 3 IA 325 of 2018 60(5) Bharat Petroleum Corporation Ltd. v. Satish Kumar Gupta RP of Essar Steel India Ltd. 443,05,33,379 4 IA 435 of 2018 60(5) IBC Orissa Stevedores Ltd. v. Satish Kumar Gupta 20,46,58,178 5 IA 438 of 2018 60(5) IBC Gail (India) Ltd. v. Satish Kumar Gupta RP of Essar Steel India Ltd. 2,47,26,000 6 IA 439 of 2018 60(5) Standard Chartered Bank. v. Satish Kumar Gupta . 2983,98,00,000 7 IA 440 of 2018 60(5) IBC Arkay Logistics Ltd. v. State Bank of India 226,89,79,198 8 IA 441 of 2018 60(5) IBC Essar Bulk Terminal Ltd. v. State Bank of India 1339,66,42,772 9 IA 442 of 2018 60(5) IBC Berger Becker Coatings (P.) Ltd. v. Essar Steel India Ltd. 5,06,72,377 10 IA 443 of 2018 60 IBC Gujarat Energy Transmission Corporation Ltd. v. Satish Kumar Gupta RP of Essar Steel India....
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....019 NTPC 10,45,00,264 36 IA 63 of 2019 Duferco S.A 37 IA 64 of 2019 Dilip ooman NA 38 Inv. P 82 of 2018 7 IBC State Tax Officer v. Satish Kumar Gupta RP of Essar Steel India Ltd. NA 39 IA 261 of 2018 43(1) The RP for ESSAR STEEL INDIA Ltd. v. Arkay Logistics Ltd. NA 40 IA 322 of 2018 43(1) The RP for ESSAR STEEL INDIA Ltd. v. Vadinar Power Company Ltd. NA 41 IA 397 of 2018 60(5)(c) IBC Jalesh Kumar Graver RP Of GPI Textiles Ltd. v. Satish Kumar Gupta RP of Essar Steel India Ltd. NA 42 IA 432 of 2018 43(1) IBC The Resolution Professional for ESSAR STEEL INDIA Ltd. v. EPC Offshore Subsea Projects Ltd. NA 43 IA 433 of 2018 43(1) IBC The Resolution Professional for ESSAR STEEL INDIA Ltd., v. India Coke & Power (P.) Ltd. NA 44 IA 431 of 2018 30(6) The Resolution Professional for ESSAR STEEL INDIA Ltd. NA 45 IA 430 of 2018 60(5) IBC Essar Steel Asia Holdings Ltd. v. Satish Kumar Gupta . NA 46 Inv. P 77 of 2018 7 IBC Arcelormittal India (P.) Ltd. (Intervener), Essar Steel Asia Holdings Ltd. v.....
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....pplicants have now preferred present I.As. making common prayers for setting aside the impugned order dated 14.02.2019 of this Tribunal so far as it records rejection of I.As. 482 of 2018 and 483 of 2018 and, therefore, these I.As be restored in file and heard and disposed of as per merits. 3. The counsels for the Respondents, i.e., Resolution Professional (RP) and Committee of Creditors (CoC), have seriously opposed the restoration of the applications by contending that applicants were not diligent and sincere enough in pursuing their matter since there was no representation from their side in such I.As. since 18.12.2018. According to them, when the matter listed for hearing on 29.01.2019, the applicants 'previous counsel had informed to the respondents' counsel that his clients were proposing to withdraw I.As. No. 482 of 2018 and 483 of 2018 and, hence, he would not be able to appear in these matters. Thereafter, these I.As. were being listed for hearing from time to time. On 14.02.2019, also in spite of repeated calls none remained present for and on behalf of applicants at 4.30 pm these I.As were dismissed for want of prosecution. 4. Therefore, according to respon....
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....that issue and perused the material available on record including the documents in question, which shows that the applicants' claims have not been admitted by the RP due to non-payment of requisite stamp duty and for non-completing the statutory formalities for not without furnishing the proof of making payment of requisite stamp duty as per the Indian Stamp Act. Hence, such agreement cannot be looked into as evidence nor it can be treated as valid claim. Therefore, in our view the RP cannot be found fault with due to non-admissions of such claims of the applicants for want of proper stamp duty. Further, this being a disputed issue whether such agreements in question (i.e. inter-corporate deposit letters) has been properly stamped or otherwise at the time of producing it before the RP for consideration or not can only be looked into by the RP or by competent authority for registering claim. Hence, in our view, this can be adjudicated only by a competent Civil Court, having necessary jurisdiction and this Adjudicating Authority cannot be expected to deal the relevant provisions of Indian Stamp Act or to make a declaration about documents in question are properly stamped or other....
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....f Rs. 1204.15 crore. 4. Similarly, the other applicant i.e. National Thermal Power Corporation Ltd. (formally known as NTPC Ltd.), has preferred I.A. No.62 of 2019, under Section 60(5) of the Code, claiming to be an operational creditor being aggrieved by partial rejection of its claim by the RP. It is further contended that as per the impugned email dated 22.10.2018, the RP has partly admitted the claim of NTPC only to the extent of Rs. 1,19,44,783/- and has rejected the rest of its claim of Rs. 9,25,55,481/-. Therefore, it challenged such decision. It is matter of record that the RP is stated to have not agreed to allow the entire claim of NTPC i.e. Rs. 10,45,00,264/- and disallowed the interest portion therefrom despite such request of the applicant to reconsider interest component also. Hence, the present IA. 5. The applicants, therefore, have stated that they are being discriminated and are meted out with differential treatment by the RP arbitrarily rejecting their interest component from the total claim, which is not in the spirit of the judgment of the Honourable Supreme Court in the matter of Swiss Ribbons (P.) Ltd. v. Union of India [2019] 101 taxmann.com 389/152 SCL....
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....n of the RP, rejecting their respective claims, which were filed as operational creditors and by partly admitting only notional value of Re. 1/-. 2. In these applications most of the applicants are Public Sector undertakings from the Central Government and from the State of Gujarat and its State Tax Department. Their grievance is that if their claim is not admitted or paid off in full, it would cause a serious prejudice to these undertakings and they have to lose a substantial amount as described (mentioned in respective applications). Hence, it will burden on public exchequer. Therefore, the applicants have prayed for a direction be issued to the Resolution Professional to admit their respective claims in creditors list and further directions also to the CoC to consider their respective claims by adding suitable provisions in the proposed Resolution Plan so as to safeguard their interest, failing which the proposed Resolution Plan is liable to be rejected. That apart, they have also sought for permission to intervene in the present proceedings and also prayed for stay of the proceedings for approval of the proposed Resolution Plan (in IA No. 431 of 2018). 3. We duly consider....
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....Ltd. (in its I.A. No. 469 of 2018) can be admitted by the Resolution Professional in creditors list. Therefore, the purpose of this I.A. is achieved and, thus, it has now become infructuous, accordingly stands disposed of. I.A. 49 of 2018 and I.A. 50 of 2018 in I.A. 431 of 2018 1. By these applications, the applicants, viz., M/s. Essar Power Limited and M/s. Bhander Power Limited, have put forth their grievances against the impugned email dated 25.10.2017 by rejecting their total claim as submitted before the Resolution Professional. 2. As per the contents of the application, it is stated that the reason for non-admission of such claims by the RP is that the remaining amount cannot be admitted, because as per the enclosed reconciliation statement as on 31.03.2017 and 30.06.2017, filed by both the applicants as per the RP neither there was any dispute nor any pending advice as claimed by the applicants in Form No.B. Therefore, the applicants, in the present I.As., have challenged such rejection of their substantial amount and has contended that there is no such provision under the I & B Code wherein the claims of the creditors can be rejected arbitrarily on account of mere ....
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....P is reported to have considered other disputed claims made by some other operational creditors under Note 18 and such claims had been admitted at value of Re.1/- subject to outcome of dispute. Therefore, we are of the view that the present applicants also deserve the similar treatment. The RP is required to include their name in the list of creditors under Note 18 with other similar type of disputed claims, which will be subject final outcome of such dispute. Hence, we feel appropriate to issue appropriate direction to the RP to consider and admit their claims in the list of creditors as observe above subject to final outcome of dispute pending. 9. With the above said observations the present I.As. are partly allowed and disposed of. I.A. No. 60 of 2019. I.A. No. 61 of 2019. I.A. No. 64 of 2019. I.A. No. 15 of 2019 and I.A. No. 442 of 2018. 1. By these I.As., the applicants have demanded a copy of the Resolution Plan from the RP and CoC to be supplied to them as a pre-requisite to consider the Resolution Plan by the and CoC for its approval. The present applicants claim to be either member of suspended management or Operational Creditor of the Corporate-Debtor-Company. Th....
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....herein, Their Lordship did not remand back the proceedings of CoC for re-voting on a resolution plan in the light of subsequent amendment took place in the IB Code whereby the requisite majority for approval of a Resolution Plan has been reduced. The Hon'ble Supreme Court did not feel appropriate to reopen such plan for reconsideration and voting for CoC (which earlier were rejected) in the light of subsequent amendment took place in the I.B. Code. 5. It is an undisputed position in the matter that when the Law of the Land in this respect has been settled by the judgment of Hon'ble Supreme Court in the matter of Vijay Kumar Jain (supra). However, before such decision, the legal view as then held by the Hon'ble NCLAT in its decision in the matter of Vijay Kumar Jain (supra) and Rajputana Properties (P.) Ltd. v. Ultra Tech Cement Ltd. [Co. Appeal (AT) Insolvency No. 82 of 2018 14-11-2018] was that a copy of the Resolution Plan being a document of confidential nature cannot be made available as a matter of right to the member of suspended management. The Lordship of the Hon'ble NCLAT had observed as such: "6 The aforesaid provisions have also been noticed b....
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....ing the maintainability of the application filed by M/s. Essar Steel Holding Asia Ltd. (IA No. 430 of 2018) and another application filed by the Resolution Professional of the GPI Textiles Limited and to reject the same in limine as being verdict of the Hon'ble Supreme Court's order dated 04.10.2018 in the matter of Arcelormittal v. Satish kumar Gupta [2018] 98 taxmann.com 99/150 SCL 354 (SC). 3. We, examined the contents of the present application. It is now a matter of record that hearing in main I.A. No. 431 were made on day-to-day basis pursuant to directions of the Hon'ble NCLAT and now stands concluded. 4. It is also undisputed position in the record that earlier IA No. 430 of 2018 filed by M/s. Essar Steel Holding India Ltd. has already been disposed of by this Tribunal by its order dated 29.01.2019. That apart, another application preferred by another Resolution Professional of M/s. GPI Textiles Ltd. also stood disposed as withdrawn. 5. In view of the above given facts of the case, nothing survives in the present application. Because the relief being sought for by the application has already been achieved. Hence, the present I.A. has now became infructu....
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....te Debtor to the Applicant; (d) pass appropriate order directing the Respondent to revise the list of financial creditors of the Corporate Debtor by including the claims of the Applicant and grant the Applicant its voting share in the Committee of Creditors in proportion to such claims with all consequential benefits arising therefrom; (e) direct the RP to treat the Applicant as a Financial Creditor of the Corporate Debtor and allow the Applicant to exercise all rights of a financial creditors in the corporate insolvency resolution process of the Corporate Debtor." 4. We have gone through the contents of the application and heard the learned counsel for both the parties. Since the present application was being heard along with connected IAs in a time bound manner, the respondent-RP chose to file Written Submissions by opposing the present IA and by taking such stand that the present Corporate Debtor was not a party at all to loan agreement entered into between the applicant and the borrower (EPGL) nor it at any point of time was a signatory to the Facility Agreement or the Addendum or any Promoter Obligation Agreement. Further the Corporate Debtor did not stand....
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....#39;:- (i) A person to whom a 'Financial debt' is owed and includes a person whom such debt has been legally assigned or transferred to (ii) The debt along with interest, if any, is disbursed against the consideration for time value of money and include any one or more mode of disbursed as mentioned in clauses (a) to (i) of sub-section of Section 5" (Emphasis supplied) The Honourable Appellate Tribunal further held and observed as follows:- "Learned Adjudicating Authority has rightly held the opening word of the definition clause which indicate that a 'financial debt' is a debt along with interest which is disbursed against the consideration for the time value of money and may include any of the events enumerated in sub-clauses (a) to (i). Therefore, it is to be seen whether the amount paid by the appellants to the Corporate Debtor, fulfil the other condition of "disbursement against consideration of time value and money", to come within the definition of "Financial Creditor" " (Emphasis Supplied)" 6. In the light of the above stated judicial precedent, we duly considered the rival submissions made before us by learned....
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....icating Authority. It also assailed the Resolution passed by the CoC for approving the Resolution Plan on various reasons, as contained in the pleadings of the I.A. Thus, the applicant has prayed for rejection of the same and for quashing and setting aside the relevant resolution passed in this respect by the CoC through E-Voting on dates 24.10.2018 and 25.10.2018, whereby, approved the resolution plans submitted by the H1 Resolution Applicant, M/s. ArcelorMittal. 2. The applicant has also made some alternative prayer in the present application that this Adjudicating Authority should direct the Resolution Applicant (herein Respondent No. 28) to distribute a sum of Rs. 42,000 Crores in such a manner that each secure financial creditors be paid their respective pro rata shares on the basis of the amount of admitted claim which are stated in prayer clause of the application which is being reproduced hereinbelow: "This Hon'ble Adjudicating Authority may be pleased to direct the Resolution Applicant to distribute a sum of Rs. 42,000 crores (plus closing adjustments in the form of Working Capital Adjustment and EBITDA) in a manner that each secured Financial Creditor is p....
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....atter of Arcelormittal Mittal India (P.) Ltd. (supra) [2018] 98 taxmann.com 99/150 SCL 354 but could not be materialized while submitting the revised resolution plan which is not proper. Hence, on such reason also, the present Resolution plan fails and need not be approved. In alternate, this Adjudicating Authority may issue some direction to the Resolution Applicant to make payment of amount due to all the financial secured creditors and operational creditors on pro rata basis, so as to meet the end of justice. 6. In support of its stand, the applicant, M/s. Standard Chartered Bank has duly annexed a comparative chart, as Annexure - A at page no. 65 of the present application which proposed as under: Sl. No Lenders Admitted Secured Claims Share as per CoC Distribution Recovery as % of claims as per CoC distribution Share if Pro-ratas distribution amongst secured lenders Recovery as % of claims in case of pro rata distribution 1 State Bank of India 13,220.91 12,161.73 92.0% 11,313.4 85.6% 2 IDBI Bank 2.481.61 2,282.79 92.0% 2,123.6 85.6% 3 Canara Bank 3,798.06 3,493.78 92.0% 3,250.1 8....
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.... its (CoC) wisdom, which seems to be biased among to its dissenting members. Further, the CoC is not empowered to create a class within a class by making discrimination with the present applicant on some different footing which drastically reduced its claim from Rs. 3487.09 Crores (minimum principle amount of Rs. 2983.98 Crores) to the extent of only Rs. 60.71 Crores. Hence, the applicant has sought for a judicial intervention of this Adjudicating Authority, in the present matter. 8. The applicant in support of its above contentions has placed reliace on the decision of Hon'ble Supreme court in the matter of Swiss Ribbon (supra) along with the decision of Hon'ble NCLAT in the matter of Binani Industries Ltd. v. Bank of Baroda [2018] 99 taxmann.com 164/150 SCL 703 by submitting that there could be no discrimination among the Financial Creditors, operational Creditors and stakeholders who are situated in similar position. The applicant has also demanded for an equitable treatment with it which is the main theme and object of the IB. Code in the light of BLRC Report as well as the U.N. model of Insolvency laws. The applicant further contends that the liquidation value of th....
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....st of the corporate Debtor company. It can be protected only by bringing a viable Resolution Plan, which can be implemented and there is equitable apportionment of the receivable amount of Resolution Plan. It cannot be equal distribution. 14. Moreover, there is no such rider in the provision of I.B. Code which prevents the CoC to constitute a core committee or sub-committee so as to ensure its smooth conduct and effective CIRP. Because the function of the CoC is to bring a resolution plan in a time-bound manner. 15. The Learned Counsel appearing for the RP and CoC have further contended that as per the theme of the I.B. Code read with the UN model of Insolvency Law and report of the BLRC, there is a requirement to provide equitable treatment to all the creditors, including financial, operational and stakeholders, this does not necessarily mean for equal treatment among all creditors, hence, the applicant's claim does not survive on such ground because it is being provided the amount on the basis of the security available in its hand which amount to more than of the value of the security available in its hand and is also much higher of the amount it would get at the time o....
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....an as guarantee was given by the present Corporate Debtor Company, M/s. Essar Steel Holding India Ltd. Therefore, in our view, when there is guarantee furnished by the Corporate Debtor Company itself, then the recovery of debts cannot be restricted to the value of shares in Essar Steel Offshore Limited as pledged by the present Corporate Debtor. The recovery of such amount can always be enforced from other assets of the Corporate Guarantor/ Corporate Debtor Company. 19. As per the settled legal norms, the finding reached at by a competent court of law including this bench by recording that the debt is established against and default has been committed by Corporate Debtor are to be treated as good as a decree of a Civil court and should be honoured in its true purport, then the CoC ought not have gone to ascertain to kinds and value of securities in the hand of the present applicant before making apportionment because a decree of a competent civil court can always be executable for recovery of decretal amount from other assets of the Corporate Debtor Company not necessarily from security provided or property pledged. 20. It is pertinent to note /hear the observation made and f....
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.... of judicial review and ruled that the basis of judicial review could be highlighted under three principal heads, namely, illegality, procedural impropriety and irrationality. Illegality as a ground of judicial review means that the decision maker must understand correctly the law that regulates his decision making powers and must give effect to it. Grounds such as acting ultra vires, errors of law and/or fact, onerous conditions, improper purpose, relevant and irrelevant factors, acting in bad faith, fettering discretion, unauthorized delegation, failure to act etc., fall under the heading "illegality". Procedural impropriety may be due to the failure to comply with the mandatory procedures such as breach of natural justice, such as audi alteram partem, absence of bias, the duty to act fairly, legitimate expectations, failure to give reasons etc. 17. Ground of irrationality takes in Wednesbury unreasonableness propounded in Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1947) 2 All ER 680, Lord Greene MR alluded to the grounds of attack which could be made against the decision, citing unreasonableness as an 'umbrella concept' which covers ....
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....t and the proportionality test is more and more applied, when there is violation of human rights, and fundamental freedom and the Wednesbury finds its presence more on the domestic law when there is violations of citizens ordinary rights. Proportionality principle has not so far replaced the Wednesbury principle and the time has not reached to say good bye to Wednesbury much less its burial. .................. .................. 30. Wednesbury and Proportionality - Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to 'assess the balance or equation' struck by the decision maker. Proportionality test in some jurisdictions is also described as the "least injurious means" or "minimal impairment" test so as to safeguard fundamental rights of citizens and to ensu....
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....sdiction of this Adjudicating Authority under Sections 30 & 31 of the IB. Code as per the decision the Hon'ble Supreme Court in the matter of Shashidharan (supra) wherein, their Lordship have pleased to observe as such: "61. Assuming that this provision was applicable to the cases on hand, 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. Concededly, if the objection to the resolution plan is on account of infraction of ground(s) specified in Sections 30(2) and 61(3), that must be specifically and expressly raised at the relevant time. For, the approval of the resolution plan by the CoC can be challenged on those grounds. However, if the opposition to the proposed resolution plan is purely a commercial or business decision, the same, being non-justiciable, is not open to challenge before the Adjudicating Authority (NCLT) or for that matter the Appellate Authority (NCLAT). If so, non-recording of any reason for taking such commercial decision will be of no avail. In the present case, admittedly, the diss....
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....evoid of merits inasmuch as it is not open to the Adjudicating Authority to entertain a revised resolution plan after the expiry of the statutory period of 270 days. Accordingly, no fault can be found with the NCLAT for not entertaining such application." 25. By following the above stated preposition laid down by the Hon'ble Supreme Court, the contention made in the present application to oppose the Resolution Plan are not legally sustainable except to consideration for alternative prayers made therein seeking for judicious apportionment /distribution of the amount of Rs. 42,000 Crores among the financial creditors and other stakeholders. 26. Therefore, by following the above stated judicial precedence on Wednesbury Principle of unreasonableness and doctorinc of proportionality, which is now the law of land as per Article 141 of the Indian Constitution, this Adjudicating Authority can very well advise to the RP and the CoC to relook in to its decision(s) and consider for making apportionment/ distribution of amount on pro rata basis on all admitted claim of all financial creditors including the present applicant and it can work out for a reasonable formula for percentage ....
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....n Plan; (e) directing that in accordance with Section 31(1) of the Code, the Resolution Plan shall be binding on the Corporate Debtor together with its employees, members, creditors, guarantors and all other stakeholders affected by the Resolution Plan. (f) Upon approval by this Tribunal as mentioned in prayer (a) above, to declare that the moratorium order passed by the Hon'ble NCLT under Section 14 of the Code vide order dated August 2, 2017 shall cease to have effect; and (g) to pass such further or other order/s be made and/or directions be given as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case and in the interest of justice without prejudice to each other." 2.By perusal of the above stated reliefs, it may be seen that the applicant Resolution Professional has also sought from this Adjudicating Authority certain reliefs and concessions and some deemed statutory Sanction/No Objection for implementation of the scheme and deemed compliance of requisite statutory formalities. The applicant has further sought exemption from making payments of stamp duty, etc. as a pre-requ....
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....n and the consequent change in ownership and control of the Corporate Debtor. Includes but is not limited to: * Odisha Industrial Development Corporation, Government of Odisha * Chhattisgarh Stage Government * Board of Trustees of the port of Vishakhapatnam * MP Audyogik Kendra Vikas Nigam 4. All actions undertaken pursuant to implementation of the Resolution Plan approved by the Adjudicating Authority shall be deemed to be exempt from any Tax and stamp duty. 5. Upon approval of the Resolution Plan by the Adjudicating Authority, all Non-Compliances of the Corporate Debtor for the period prior to the Effective Date (including but not limited to those relating to Tax), shall be deemed to be waived by all the Governmental Authorities. In relation to any non-compliance arising under any tax and duty benefit scheme (including, the Export Promotion Credit Guarantee Scheme), the relevant Government Authority (including, without limitation, the Director General of Foreign Trade) shall waive all such non-compliances by the Corporate Debtor without levying any fee, penalty or additional duty, and the Corporate Debtor shall be allowed....
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.... the Corporate Debtor shall be permitted to continue to operate its business as a going concern without disruption for the benefit of the Corporate Debtor for a period of 24 months or until renewed by the relevant Governmental Authority, whichever is later. Without any liability for Non-Compliance by the Corporate Debtor, during the time specified above, the Resolution Applicant undertakes to cause the Corporate Debtor to obtain/renew such expired consents, licenses, approvals, rights, entitlements, benefits and privileges, whether under law, contract, lease or license, granted in favour of the Corporate Debtor or to which the Corporate Debtor is entitled to accustomed to, evaluate the steps required to address the same and takes steps remedy the same to the extent possible. During the 24 months period, the Resolution Applicant and the Corporate Debtor shall have immunity from any actions and penalties under any applicable Law for any Non-Compliance of applicable Law in relation to the Corporate Debtor as well as with the terms of any agreement or arrangement entered into with the Corporate Debtor which was existing as on the Plan Approval Date/Effective Date and which continues fo....
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.... relatable to the period prior to the Plan Approval Date shall sand assigned or novated in favour of the Resolution Applicant unless extinguished as per directions of the Resolution Applicant. From and on the Plan Approval Date, all assets of the Corporate Debtor (including freehold properties, leasehold interests, or rights of the Corporate Debtor under leave and license agreements executed by it prior to the Plan Approval Date) shall be vested in the Corporate Debtor, free and clear of all Encumbrances, other than Encumbrances required to be assigned / novated along with the outstanding loans of the Corporate Debtor. 11. No Governmental Authority (including regulatory, Judicial and quasi-Judicial authority) shall issue any orders, directions, decrees, judgments, etc, that will be in contravention of the provisions of the Resolution Plan (including the Financial Plan). 12. Any approvals that may be required from Government Authorities (including Tax Authorities) in connection with the implementation of the Resolution Plan including on account change in ownership/control of the Corporate Debtor shall be deemed to have been granted on the Plan Approval Date. ....
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....e business condition of the Corporate Debtor, its stakeholders and inter alia may result in failure of the Resolution Plan to resolve insolvency. 1. Assets Owned / Controlled by Existing Promoter Group: Currently the Corporate Debtor's business is highly dependent on the assets and services provided by Related Parties (most of which are controlled by the Existing Promoter Group). Therefore, the Resolution Applicant and the Corporate Debtor will require protection by way of the directions sought below to ring-fence themselves from any actions that may he initiated/commenced by the Existing Corporate Group/its affiliates: a. Continued and Uninterrupted Supply of Power : The Resolution Applicant seeks a direction from Adjudicating Authority to Essar Power Hazira Limited. Essar Power Orissa Limited and Essar Power MP Limited, as essential service providers of the Corporate Debtor to continue to supply power to the Corporate Debtor on no less favourable terms than the terms and conditions on which the power supply is currently obtained for such period as the Corporate Debtor requires such access for its business and operations. b. Transmission Inf....
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....egularization of two land parcels in Hazira duly occupied by the Corporate Debtor in line with rates that were prevalent when the original application was preferred for regularization and adjust the payables so computed against any amounts already paid by the Corporate Debtor towards the conversion process (for which the charges along with, the applicable penalty has already been paid), and to waive any penalties and fines that are proposed to be levied as part of the regularizatioion process. 4. In addition to the above, the Applicant-Resolution Professional has stated that the present resolution plan is law compliant and in conformity with the. relevant provisions of the I&B Code. The Resolution Professional has further narrated [at Point No.V of paragraph 50.4 (page 36) of the present application] about, the manner of implementation and supervision of the resolution plan and (at Point No.VI), compliance of the approved resolution plan with the requirements of Section 30(2) of the Code and Regulation 38 of the CIRP Regulations, which read as under:- "V. Manner of implementation and supervision of the Resolution Plan Part C of Section X (Implementation Schedul....
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....tation and supervision of the resolution plan. Section X 7 Section 30(2)(e) of Code Declaration that the Resolution Plan is not in contravention of provisions of applicable law Covering Letter 8 Regulation 38(3) of the CIRP Regulations. Details of AM India and its connected persons. Attached as Format V to the Resolution Plan 5. The applicant, in this application, has further described about the salient features of the proposed Resolution Plan under the heading "Key Contents of the Resolution Plan", which are stated in paragraph 50 of the present application. For the sake of convenience, the same are also being reproduced hereinbelow: "50. Key Contents of the Resolution Plan The total admitted claims as on October 24,2018 in relation to the Corporate Debtor is Rs. 54549,88,56,433 (Rupees Fifty Four Thousand Five Hundred Forty Nine Core Eighty Eight Lakh Fifty Six Thousand Four Hundred Thirty Three Only) ("Admitted Claim"). Annexed herewith and marked as Exhibit -20 is a copy of the list of creditors dated October 24,2018. The terms of settlement proposed by AM India is as follows: 50.1 Summary Proposal I Proposal to ....
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.... AM India has proposed to make pavmenl of INR 196 crores to the Trade Creditors and Government Creditors (as defined in Section 1 of the Resolution Plan). The aforesaid amount includes the AM India's proposal in pay all Admitted Claims to small Trade Creditors (defined as less than INR 1 crore in Admitted Claim) in an initiative lo foster trust and support in the MSME segment. (b) Proposal for Workmen and Employees AM India has proposed payment to workmen and employees of an aggregate amount of INR 18 crores in full against their Admitted Claims. These amounts shall be paid as lump sum amount by AM India. (c) Proposal for Other Creditors AM India has not proposed to make any payments to other Creditors. 50.2 Terms of Settlement Section XIII (Terms of Settlement) of the Resolution Plan inter alia provides as follows: I. Financial Creditors The following are terms of settlement in relation to the Claims of Financial Creditors: (a) The payments to the Financial Creditors in accordance with the Resolution Plan shall be treated as full and final payment of all outstanding dues of the Corporate Debtor t....
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....al debt and all such guarantees shall also stand extinguished us a part of the Resolution Plan and the beneficiaries of such guarantees shall be expected to recover the monies with respect to uninvoked guarantees from the principal borrower and for any shortfall, they shall not have any recourse against the Corporate Debtor and/or the Resolution Applicant. For the sake of brevity, the underlying loans to such principal borrower shall continue with right to full recovery. (d) In the event that the Corporate Debtor is required to pay any amounts pursuant to the invocation of guarantees given for and on behalf of the Corporate. Debtor or payments made thereunder, the Financial Creditor(s) which is the beneficiary of such guarantee shall reimburse such amounts in proportion to the amounts recovered by it under the said guarantee to the Corporate Debtor within a period of ninety days of any such payment being made by the Corporate Debtor. Further. in the event that a Financial Creditor requires the Corporate Debtor to contest any claim on the Corporate Debtor pursuant to the invocation of guarantees given on behalf of the Corporate Debtor (to which it is a beneficiary) or payme....
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.... if necessary, other financial instruments permitted under the foreign exchange norms (including equity shares, preference shares and debentures) as well as accept (if appropriate) upfront funds' infusion by way of loans (s) from external parties and/or ArecelorMittal group companies. Equity Infusion in Corporate Debtor and Reduction of Current Share Capital Subject to the completion of the Conditions Precedent, as contemplated under Section XIV (Approvals Required for Implementation of the Resolution Plan), AM India will infuse equity in the Corporate Debtor at fair value (which will be a part of the Upfront Fresh Capital Infusion proposed to be invested in accordance with Section V). Upon the receipt of the approval of this Hon'ble Tribunal, as contemplated under Section XIV or upon such approval being received from this Hon'ble Tribunal under any proceedings under the Companies Act,. 2013, the Corporate Debtor will undertake. capital reduction and extinguish the entire share capital (both equity and preference) issued by it and held by the existing promoters and public shareholders (and for removal of doubt, other than the equity capital held by AM ....
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....ious Stakeholders) 100% of the Claims (whether admitted, rejected or pending verification) of the Workmen and Employees (as defined in Sections 1.81 and 1.25 of the Resolution Plan) are proposed to be paid. Further, paragraph A.5 of Section X. (Implementation Schedule (Accquisition Structure), Supervision of Implementation Plan and Management) of the Resolution Plan provides that the Workmen and Employees Dues Amount shall be paid in priority to payments to the Financial Creditors. Further, the current business plan does not envisage the retrenchment of the Workmen of the Corporate Debtor. III. Payment of the Operational Creditors Paragraph A.5 of Section X (Implementation Schedule (Acquisition Structure), Supervision of Implementation Plan and Management) of the Resolution Plan provides that any amounts payable to the Operational Creditors under the Resolution Plan shall be paid in priority to payments to the Financial Creditors. Further, Section XI (Source of Funds) of the Resolution Plan provides that the claims of Trade Creditors will be funded by AM India through the sources under the Letter off Commitment. IV. Mechanism regarding management and cont....
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.... under sub-section (1),- (a) the moratorium order passed by the Adjudicating Authority under section 14 shall cease, to have effect: and (b) the resolution professional shall forward all records relating to the conduct of the corporate insolvency resolution process and the. resolution plan to the Board to be recorded on its database." "30. Submission of resolution plan (1) ................................. (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 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 supervisio....
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.... such Resolution Plan needs to be put up before the CoC for its approval with requisite majority. 9. It is a mailer of record that the Resolution Professional, after making necessary scrutiny of and by satisfying himself with the present Resolution Plan that it is in conformity with the provisions of Section 30(2) of the I&B Code, has placed it before the Committee of Creditors for deliberation and necessary consideration for approval of the Plan with necessary voting. 10. In the preceding paragraph of this order, we have already described and discussed the salient features/key contents of the Resolution Plan. That apart, the Resolution Professional. through a chart, as given in paragraph 3, duly submitted that the approved Resolution Plan seems to meet with all the requirements of Section 30 (2) of the Code and Regulation 38 of the CIRP Regulations. Further, the CoC in its subsequent meeting, i.e. 19" Meeting, has duly considered and deliberated upon the key findings of the Honourable Supreme Court's judgment, and also considered the eligibility of the present Resolution Application in the light of Section 29A(c) of the I&B Code and confirmed that the present Resolution ....
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....oting results (Exhibit-18). Subsequent thereto, the present Resolution Applicant also submitted an addendum to the Resolution Plan on October 25, 2018, as proposed by the sub-committee:, which also has formed part of the present Resolution Plan, By going through the above stated contents, it seems that all procedural formalities were completed and relevant provisions of the I&B Code are duly complied with hence, such Plan deserves approval. 11. Our attention was also drawn by the learned counsel for the parties to the latest Supreme Court judgments in the matter of Chitra Sharma v. Union of India [2018] 96 taxmann.com 216/148 SCL 833, Swiss Ribbons Pvt. Ltd. (supra), Vijaykumar Jain (supra) and K. Sashidhar (supra) and also to the decision of the Honourable NCLAT' in the matter of Binani Industries Limited (supra) 11.1 In Swiss Ribbons, Their Lordships of the Honourable Supreme Court have been pleased to observe as under :- "43 Under the Code, the committee of creditors is entrusted with the primary responsibility of financial restructuring. Then are required to assess the viability of a corporate debtor by taking into account all available information as well as....
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....f equitable treatment may be modified by social policy on priorities and give way to the prerogatives pertaining to holders of claims or interests that arise, for example, by operation of law, it retains its significance by 12 UNCITRAL Legislative Guide on Insolvency Law ensuring that the priority accorded to the claims of a similar class affects all members of the class in the same manner. The policy of equitable treatment permeates many aspects of an insolvency law, including the application of the stay or suspension, provisions to set aside acts and transactions and recapture value for the insolvency estate, classification of claims, voting procedures in reorganization and distribution mechanisms. An insolvency law should address problems of fraud and favouritism that may arise in cases of financial distress by providing, for example, that acts and transactions detrimental to equitable treatment of creditors can be avoided." 46. The. NCLAT has, while looking into viability and feasibility of resolution plans that are approved by the committee of creditors, gone into whether operational creditors are given roughly same treatment as financial creditors, and if they are no....
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....d. (supra) has observed and held that :- "17.' To decide the issue it will be desirable to notice the object of the 'I & B Code', object of 'Resolution ' and what is expected from the 'Committee of Creditors', as summarized below; 1. The objective of the 'I&BCode' As evident from the long title of the 'I&B Code'. it is or reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound matter for maximisation of value of assets of such persons to promote entrepreneurship, availability of credit, and balance the interests of all stakeholders. The recent Ordinance explicit aims to promote resolution over liquidation. 2. The objective of the 'I&B Code' is Resolution. The Purpose of Resolution is for maximisation of value of assets of the 'Corporate Debtor' and thereby for all creditors, It is not maximisation of value for a 'stakeholder' or 'a set of stakeholders' such as creditors and to promote entrepreneurship, availability of credit and balance the interests. The first order objective is "resolution". The second or....
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....ation process must also be met in any negotiated solution." 6. The 'I&B Code' aims at promoting availability of credit. Credit comes from the 'Financial Creditors' and the 'Operational Creditors'. Either creditor is not enough for business Both kinds of credits need to be on a level playing field. 'Operational Creditors' need to provide goods and services. If they are not. treated well or discriminated, they will not provide goods and services on credit. 'The objective of promoting availability of credit will be defeated c. The 'I&B Code' is for reorganisation and insolvency resolution of corporate persons. ...for maximisation of value of assets of such persons to.....balance interests of all stakeholders. It is possible to balance interests of all stakeholders if the resolution maximises the value of assets of the 'Corporate Debtor'. One cannot balance interest of all stakeholders, if resolution maximises the value for a or a set of stakeholder such as 'Financial Creditors' One or a set of stakeholders cannot benefit unduly stakeholder at the cost of another. d. The 'I&BCode' prohibits a....
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....' as it will be sold at the highest price. One would not need Corporate Insolvency Resolution Process'. Interim Resolution Professional'. 'Resolution Professional'. interim finance, calm period, essential services, Committee of Creditors or 'Resolution Applicant' and detailed, regulated process for the purpose of sale. It is possible then under a 'Resolution Plan', certain rights in the 'Corporate Debtor', or assets and liabilities of the 'Corporate Debtor' are exchanged, but that is incidental It is not an auction. Depending on the facts and circumstances of the 'Corporate Debtor'. 'Resolution Applicant' May Propose a 'Resolution Plan ' that entials change of management, technology product portfolio or marketing strategy; acquisition or disposal of assets. undertaking or business; modification of capital structure or leverage; infusion of additional resources in cash or kind over tune; etc. Each plan has a different likelihood of turnaround depending on credibility and track record of 'Resolution, Applicant' and feasibility and viability of a 'Resolution Plan' are not amenable to b....
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.... constrained to observe that although there are certain provisions made in the resolution plan for making payment to the financial creditors, workmen and employees, yet the operational creditors having debt value of Rs. 1 crore and above are getting nil amount (token amount of Re. 1 /-). While the total dues of the operational creditors come to around Rs. 4700 crore, the Resolution Applicant has made additional provision of Rs. 196 crore towards payment of dues of those operational creditors having debt less than Rs. 1 crore. On the other hand, the comparative chart prepared for making payments of financial creditors and other class of creditors, which has been annexed by the Applicant-Standard Chartered Bank in I.A. No.439 of 2018 (at Annexure-A page 65), goes to show that the CoC has decided to make repayment of claims as per the chart and thus, all financial creditors except Standard Chartered Bank would receive 92% of their admitted claim amount, but Standard Chartered Bank, although a financial creditor, is provided payment as per a ratio of only 1.7% of its total claim, which, prima facie, not only seems to be unequitable but also discriminatory. Had the CoC adopted some othe....
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.... propounded in Associated Provincial Picture Houses Limited v. Wednesebury Corporation (1947) 2 All ER 680, Lord Greene MR alluded to the grounds of attack which could he made against the decision, citing unreasonableness as an 'umbrella concept' which covers the major heads of review and pointed out that the court can interfere with a decision if it is so absurd that no reasonable decision maker would in law come to it. In GCHQ Case (supra) Lord Diplock fashioned the principle of unreasonableness and preferred to use the term irrationality as follows: "By 'irrationality' I mean what can now be succinctly referred to as "Wednesbury's unreasonableness",...... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." 18. In R. v. Secretary of State for the Home Department ex parte Brind (1991) 1 All ER 720, the House of Lords re-examined the reasonableness of the exercise of the Home Secretary's discretion to issue a notice banning the transmission of speech by representatives of the Irish Rep....
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....le saying so, we are not obvious of the fact that the doctrine of unreasonableness is giving way to the doctrine of proportionality. 25. It is interesting to note that the Wednesbury principles may not now be held to be applicable in view of the development in constitutional law in this behalf. See, for example Huang v. Secy of State for the Home Deptt. wherein relating to R v. Secy of State of the Home Deptt., exp. Daly, it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full-blown merit judgment, which is yet more than ex p. Daly, requires on a judicial review where the court has to decide a proportionality issue." xxxxxxxxx 30. Wednesbury and Proportionality - Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decisi....
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....ount of Rs. 42,000 crore received from the Resolution Applicant as upfront payment for pro rata basis distribution among all the financial creditors and, if such formula is worked out and decision is taken, substantial interests of Standard Chartered Bank can also adequately be protected as it would get considerable amount rather than 1.7% as offered by the CoC. 15. We further suggest that rest of the amount, i.e.. 15% of the amount of Rs. 42,000 crore, which comes to Rs. 6300 crore, may be distributed among other operational creditors and other stakeholders, who are going to receive nil amount, because the Resolution Applicant has made additional provision of Rs. 196 crore meant only for those operational creditors whose debt value is less than Rs. 1 crore. Hence, such amount of 15% can be paid to other operational creditors who are having debt value of Rs. 1 crore and above on the basis of their verified/admitted/undisputed claim, so that they could be able to receive minimum 50% of their principal dues. 16. If such suggestion is accepted and followed, then we find no infirmity in the Resolution Plan as it will achieve the true spirit of law compliant under Section 30(2) of....
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....mple majority mark, namely not less than 25% (and even after amendment w.e.f.06.06.2018, 44%). Thus, the scrutiny of the resolution plan is required to pass through the limits test of not less than requisite (75% or 66% as may be applicable) of voting share a strict regime. That means the resolution plan must appear to not less than requisite voting share of the financial creditors to be an overall crediable plan, capable of achieving timelines specified in the Code generally, assuring successful revival of the corporate debtor and disavowing endless speculation. 18. Further, while approving the resolution plan, we also considered certain additional reliefs and statutory concessions being sought for by the Resolution Applicant from this Authority as pre-requisite for successful implementation of the Plan, which we have already referred in the preceding paragraphs of this judgment, whereby the Resolution Applicant has sought exemption from payment of stamp duty, taxes, fees, transfer charges, transfer premium, etc. But in our humble view, such aspect falls within the domain of the appropriate Government and competent statutory authority. Therefore, the Resolution Applicant, after....
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....ate Debtor by making payment of Rs. 54,389/- crore. The said IA was disposed of by our order dated 29.01.2019, with such observation that such application, under Section 60(5) of the I&B Code, was not maintainable before this Adjudicating Authority, keeping in view of the direction given/mandate issued by the Honourable Supreme Court, under Article 112 of Constitution of India in ArecelorMittal India (P.) Ltd. (supra). In our earlier order dated 29.01.2019 (passed in IA No. 430 of 2018) we held that such settlement plan could be considered by the RP & CoC after having a specific permission from the Honourable Supreme Court or from the Honourable NCLAT. Further such application could be moved only under Section 12 of the I & B Code by a Financial Creditor as per the procedures stipulated therein. Therefore, by disposal of the above stated I.A. No. 430 of 2018, some common alternative prayers made in most of the pending I.As. became infructuous. Notwithstanding the above, in the interest of justice, we were required to deal with these pending I.As. in accordance with law along with I.A No. 431 of 2018 in a time bound manner, by following the directions given by the Honourable NCLAT. ....
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....ditors, requested us to give one more opportunity to the parties before us to pay off their corporate debtors' respective debts in accordance with Section 29A, as the best resolution plan can then be selected by the requisite majority of the Committee of Creditors, so that oil dues could be cleared as soon as possible. Acceding to this request, in order to do complete justice under Article 142 of the Constitution of India, and oho for the reason that the law on Section 29A has been laid down for the first time by this judgment, we give one more opportunity to both resolution applicants to pay off the NPAs of their related corporate debtors within a period of two weeks from the date of receipt of this judgment, in accordance with the proviso to Section 29A(c). If such payments are made within the aforesaid period, both resolution applicants can resubmit their resolution plans dated 2.4.2018 to the Committee of Creditors, who are then given of period of 8 weeks from this date, to accept, by the requisite majority, the best amongst the plans submitted, including the resolution plan submitted by Vedanta. We make it clear that in the event that no plan is found worthy of acceptance ....
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....r consideration of the COC in the light of the subsequent judgment of the Honourable Supreme Court in the matter of Chitra Sharma (supra), Vijay Kumar Jain (supra), Swiss Ribbons (P.) Ltd. (supra) and K. Sashidar (supra) read with the decision of the Hon'ble NCLAT in Benani Industries Ltd. (supra), which stands conlirmcd by the Hon'ble Court by dismissing the SLP preferred against such decision. 23. While making our such observations/suggestions, we are conscious enough about the jurisdiction of this adjudicating authority not to substitute its view with the commercial wisdom of the CoC nor it is made open to this Adjudicating Authority in the light of decision of the Honourable Supreme Court in the matter of K. Sashidhar (supra) to make judicial review of decision of the CoC on a resolution plan which is beyond the scope and purview of Section 31 read with Section 30(4) of the I&B Code. Our such suggestion is aimed to supplement the view of the CoC and not to supplant it for better and effective implementation of the resolution plan in a more workable and effective manner, so as to avoid multiple proceedings in the present CIRP. Hence, our such observations and suggesti....
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.... interests of the resolution applicant by providing on year's time for seeking necessary approval required under any law for the time being in force for implementation the resolution plan. Therefore, our this order for approving the resolution plan cannot purport nor can be construed to have given any exemption in law or statutory concession, because, in our humble view, it lies in the domain of an appropriate Government and competent Authority. The applicant is at liberty to approach them on the strength of this resolution plan approved by this Adjudicating Authority, which seems to be sound and law compliant. We hope this will suffice the purpose of the resolution applicant for seeking necessary exemption from appropriate Government and other competent/statutory authorities. 27. Since we dealt with many interim I.As filed by various applicants, claiming to be either financial creditors or secured creditors or operational creditors or stakeholders, requesting for apportionment of the amount of Rs. 42,000 crore proposed in the resolution plan fairly and reasonably, so that their interest can also be adequately taken care of while dealing with these I.As, although we are of t....