TaxTMI 
TaxTMI 
TaxTMI 
2020 (6) TMI 393
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....an application filed by State Bank of India under Section 7 of the Insolvency and Bankruptcy Code, 2016 against the Corporate Debtor- IVRCL and the same were admitted for Corporate Insolvency Resolution Process on 23rd February, 2018 with the appointment of Interim Resolution Professional/confirmed as Resolution Professional by the Committee of Creditors. 3. Thereafter, a public announcement for inviting Expression of Interest (EOI) to submit the Resolution Plan for the Corporate Debtor from the potential Resolution Applicants was issued on May 9th, 2018 with the last date of submission of EOI on May 24th, 2018. Further, the Resolution Professional by way of a public announcement had extended the last date for submission of EOI to June 4th, 2018 on May 28th, 2018. Resolution Professional had issued Evaluation Matrix and Bid process memorandum with last date of submission of Resolution Plan by July, 11, 2018 on June 11, 2018. 4. It is submitted by the Appellant that pursuant to the First EOI, there were total 7 prospective Resolution Applicants who had submitted their Expression of Interest (EOI) However, 2 Resolution Applicants did not submit any formal application for submission....
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....in terms and condition of the EOI and the Process Memorandum in relation to the Resolution Plan received from First Global. Thereafter, on November 16th, 2018 First Global submitted a revised Resolution Plan along with Mr. Ravindra Deol, Mr. Shanker Sharma and Ms. Devina Mehra as Resolution Applicants ("Reconstituted Consortium") 7. It is Further submitted by the Appellant that the CoC had rejected the Resolution Plan submitted by Original/ Reconstituted Consortium due to the following reasons: (a) Deviation to the EOI was rejected by the CoC, therefore reconstituting the Original Consortium by the Reconstituted Consortium as Resolution Applicants is in violation of the EOI and the provision of I&B code; (b) Original Consortium had not placed the Earnest Money Deposit (EMD) along with submitting the Resolution Plan an October 4, 2018 as required by the Bid process Memorandum; (c) Original Consortium was not in compliance of the minimum qualification criteria as defined in the EOI published on August 14th ,2018; and (d) Resolution Plan submitted by Reconstituted Consortium was not commercially acceptable by the CoC and despite various requests made by the members of CoC to ....
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.... members. 13. It is further stated that as an alternative and seeing that the CoC was unrelenting, the Applicant in the same CoC meeting of 06.11.2018 even offered to bring in another person as a consortium member in place of phoenix ARC / First Global Stock broking Pvt. Ltd. With a stupendous net worth (in excess of Rs. 450 crores) whose credentials could be taken into account for the purpose of deciding upon the eligibility, The Applicant had been in constant discussion with the said individual, who was their business associate and who had expressed his readiness and willingness to join the consortium, if required. None of this was considered by the CoC. 14. That as regard the non-submission of the EMD along with the submission of the Resolution Plan dated 04.10.2018 as required by the Bid Process Memorandum is concerned, it is submitted that while the discussions were taking place with the Resolution Professional in respect of the submissions of the Resolution Plan, the Resolution Applicant (RA), which was the only shortlisted and qualified RA on behalf of the consortium had put in a specific request through emails for waiver of the EMD of Rs. 5 Crores. In an Email written to ....
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....ional for extension of the timelines for submission of the balance EMD tantamount to waiver and acceptance on the part of the Resolution Professional and the CoC in case the balance EMD is submitted prior to the expiry of such revised timelines and such ground for rejection of the Resolution Plan submitted by the Applicant at a later date, is a mere afterthought. 16. It is further submitted by the Appellant that as regard Constitution of the Resolution Applicants as per the Resolution Plans being different from the Constitution of the Resolution Applicants as per the EOI submitted earlier, it is submitted that the Resolution Applicant has not mentioned different constitution of the consortium in the EOI and the Resolution Plan submitted. All the constituents of the consortium continue to remain associated with consortium members, Phoenix, ARC merely requested that it intended to be described as a 'financial sponsor' instead of a "Resolution Applicant", though it had no objection to continue being a part of the consortium and even signed the Resolution Plan submitted on 05.11.2018. However, at the end of the CIRP, the CoC started objecting to it even though no objection wha....
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.... jagatramka being Company Appeal (AT) No.221 of 2018 had observed that "The aforesaid judgement makes it clear that even during the period of liquidation for the purpose of section 230 to 232 of the Companies Act, the 'Corporate Debtor' is to be saved from its own management. Meaning thereby the Promoters, who are ineligible under Section 29A, are not entitled to file application for Compromise and Arrangement in their favour under Section 230 to 232 of the Companies Act. 21. It is further submitted by the Respondent that looking at the relief sought by the Appellant, it is seeking direction from this Appellate Tribunal to direct the Respondent to file the application under section 230 of the Companies Act,2013 to place on record the scheme of arrangement from the Appellant. As such, the Appellant is trying to obtain an order this Appellate Tribunal by circumventing the provision of the Insolvency and Bankruptcy Code, 2016 ("code"), more particularly proviso to the section 35 of the code and the law settled by this Appellate Tribunal in the Judgement of Jindal Steel and Power Limited (supra). 22. It is submitted by the Respondent Bank that it has granted credit faciliti....