TaxTMI 
TaxTMI 
2017 (12) TMI 1763
X X X X Extracts X X X X
X X X X Extracts X X X X
....r initiation of corporate insolvency resolution process as a corporate debtor against itself. The same was admitted by this Bench vide order dated March 17, 2017 by appointing Mr. Dinkar T. Venkatasubramanian as an IRP; II. That on the recommendation of the CoC, this Tribunal vide its order dated June 1, 2017 had appointed Mr. Mukesh Mohon as Resolution Professional, replacing Mr. Dinkar T. Venkatasubramanian; III. Thereafter, as per decision of the CoC, the R.P got published the Expression of Interest for Resolution Plans for JEKPL Private Limited in the Financial Express, Business Standard, Economic Times and Hindustan Times on July 14, 2017 and July 17, 2017 respectively. As per publication the last date for submission of Expression of Interest was fixed as July 31, 2017. Committee of Creditors in their meeting dated July 12, 2017 had decided that one of the major criteria to be fulfilled for sharing the Information Memorandum with the prospective Resolution Applicants is that the prospective Resolution Applicant should have minimum Net Worth of Rs. 100 crores as on 31.03.2017. IV. That 13 Expression of Interest were received from the following persons: - i. Oil India Li....
X X X X Extracts X X X X
X X X X Extracts X X X X
....audit as directed by the Committee of Creditors, has confirmed which meet the requirement of the Code specifically covered under Sections 43, 45, 50 and 66 of the Code. This was in compliance of Regulation 39(2) of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations 2016; X. That Resolution Professional presented the Resolution Plans before the Committee of Creditors in its meeting held on November 13, 2017 after examination of the Resolution Plans received from M/s Atyant Capital India Fund-I and M/s Hindustan Oil Exploration Company Limited as per Section 30(2) of Insolvency and Bankruptcy Code, 2016, read with Regulation 39(2), of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016; XI. That the next meeting of CoC to discuss the revised Resolution Plan submitted by the Atyant Capital India Fund-I and M/s Hindustan Oil Exploration Company Limited was held on November 20,2017. The CoC have requested the Resolution Applicant to further enhance the consideration and also decided to call for earnest money deposit of Rupees Five crores from the Resolution Applica....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of Creditors will be held on December 07, 2017 for the voting on the Resolution Plan by the Financial Creditors; XVI. That the revised claim submitted by the EXIM Bank in Form F on December 06, 2017, was not reviewed by the Resolution Professional as the matter of claim by the EXIM bank is sub-judice, since the advance copy of appeal by EXIM Bank has also been received by the Resolution Professional; XVII. That the Committee of Creditors at their meeting held on December 07, 2017 at New Delhi, has discussed on the communication received from M/s Hindustan Oil Exploration Company Limited on December 06, 2017 and decided against considering the Resolution Plan submitted on December 06, 2017 as the same is conditional, which condition "This proposal is inclusive of JEKPL loan given to JOGPL Private Limited which holds Tripura asset. Therefore, it is requested that the existing bankers who are creditors to JEKPL will not claim or retain any interest on JOGPL and the existing promoter group companies to JEKPL shall have no rights to the assets to JOGPL whatsoever. This should be ensured and facilitated. " Cannot be enforced or tenable as the lenders can only assign those rights/se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....term loans extended by EXIM to JE Energy B.V. (formerly Jubilant Energy B.V.) and Jubilant Energy (Holding) B.V. are to be rescinded; VI. All liabilities of JEKPL Private Limited, i.e. current and non-current liabilities appearing on the balance sheet of JEKPL Private Limited on the Effective Date excluding the net income tax asset/liability are to be extinguished or annulled; VII. All contingent liabilities of JEKPL Private Limited, whether claimed or unclaimed, excluding the bank guarantee provided by Axis Bank is to be extinguished or annulled. For the sake of clarity this waiver of liabilities includes the liabilities to the Government of India under the production sharing contracts for the blocks AA-ONN-2009/1 and AA-ONN-2009/2. In case the waiver of liabilities by the Government of India is not enforceable by the order of the Adjudicating Authority and if the bank guarantee provided by Axis Bank is invoked. Axis Bank shall only be entitled to receive the pro rata amount of the consideration provided under this Resolution Plan in proportion to their claim to the total claim accepted at any point of time which shall be kept in an escrow account (modalities to be discussed w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lication for the approval of Resolution Plan, we also heard Sh. Anil Kumar, Learned PCS along with Mr. Sandeep Bisht representing the Resolution Professional (RP) of the Corporate Debtor Company (presently under CIRP). We also heard the submissions of Advocate Ms. Gunjan Jadwani for the EXIM Bank. During the course of hearing, Learned PCS appearing for the RP clarified such that no stay has so far been granted by the Hon'ble NCLAT against the proceeding of this Court till 14th December, 2017 and the appeal as preferred by the EXIM bank stands simply adjourned to 5th January, 2018. Hence, there can be no impediment for this Court to pronounce an order in respect of approval of a resolution plan. 5. The learned counsel appearing for EXIM Bank submitted that the bank has not yet been supplied with a copy of the resolution plan. Further, an application seeking for stay of the present proceedings has been filed and is now sub judice before the Hon'ble NCLAT. However, the PCS representing the RP submitted that he is not aware of filing of such stay application. However, there is no stay till date. Considering such circumstances, we can presume that as of today there is no stay....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to be bona fide and beneficial to the interest of the company, nor it is forbidden by law. Therefore, this court being an Adjudicating Authority is not expected to substitute its view with Commercial Wisdom of the RP and CoC nor it should deal with technical complexity and merits of Resolution Plan unless it found contrary to express provision of law and goes against the public interest. Our such observation finds support from the UNICITRAL Legislative Guide, which recommends for similar approach to be taken by a court. The relevant extract of such guide may be reproduced herein below: - 63. The more complex the decisions the court is asked to make in terms of approval or confirmation, the more relevant knowledge and expertise is required of the judges and the greater the potential for judges to interfere in what are essentially commercial decisions of creditors to approve or reject a plan. In particular, it is highly desirable that the law not require or permit the court to review the economic and commercial basis of the decision of creditors (including issues of fairness that do not relate to the approval procedure, but rather to the substance of what has been agreed) nor that....