TaxTMI 
TaxTMI 
TaxTMI 
2020 (8) TMI 793
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....'- ('Corporate Debtor'). He is aggrieved of the impugned order dated 20th January, 2020 passed by the Adjudicating Authority (National Company Law Tribunal), Division Bench, Chennai by virtue whereof the Adjudicating Authority allowed MA/780/2019 in CP/280/IB/2018 approving the Resolution Plan of 'SNJ Distilleries Limited'- (Successful Resolution Applicant) and dismissed MA/1250/2019 in CP/280/IB/2018 filed by the Promoter/ Director, seeking direction in the name of 'Financial Creditors' as also 'Union Bank of India' to submit Form FA in regard to the Settlement Plan to the Resolution Professional and Committee of Creditors, on the ground that the Promoter/ Director had failed to comply with the direction of this Appellate Tribunal and the Hon'ble Apex Court. 2. For better understanding of the controversy involved in this appeal, it is apt to have comprehensive view of the factual matrix of the subject matter. An application came to be filed by the Union Bank of India under Section 7 of the Insolvency and Bankruptcy Code, 2016 ('I&B Code', for short) for initiating Corporate Insolvency Resolution Process qua 'M/s. Empee Distilleries Limited'- ('Corporate Debtor'). The Adjudicating....
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....cts a settlement plan, the Adjudicating Authority and this Appellate Tribunal can set aside such decision under Section 60 of the 'I&B Code'. By virtue of the summary dismissal of MA/1250/2019 liberty granted by this Appellate Tribunal and the Hon'ble Apex Court to the promoters for substantial consideration and comparison of their settlement plan, has been arbitrarily nullified. It is further submitted that the settlement plan of Appellant met all the parameters and could not be rejected on technical grounds without consideration of the merits of the plan. As regards the Resolution Plan of Successful Resolution Applicant, it is submitted that the mandatory procedure laid down in "Vijay Kumar Jain v. Standard Chartered Bank & Ors.- (2019) SCC OnLine SC 103" was violated and the suspended board was not allowed representation in the meeting approving the same. It is submitted that the declared net worth of the Successful Resolution Applicant is Rs. 182.45 Crores whereas the proposed amount under the Resolution Plan is Rs. 475 Crores. It is contended that the proposed payments may be made by infusing tainted and unaccounted money thereby violating the fiscal laws. It is further submit....
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....nt Plan of the promoters of the Corporate Debtor was not submitted in Form FA accompanied with requisite Bank Guarantee as per Regulation 30A (2) of the IB Regulations, 2016 for withdrawal of application under Section 12A of the 'I&B Code'. Besides no credible source of funds was provided for the Settlement Plan. It is further submitted that the Settlement Plan sought concession, relief, deemed consent and approvals though the same was not a Resolution Plan. It is further submitted that after comparison of the Settlement Plan with the Resolution Plan, the Committee of Creditors arrived at the unanimous decision that the Resolution Plan was better than the Settlement Plan and the Settlement Plan was not acceptable to it. It is submitted that the Union Bank of India had taken stand in Committee of Creditors' meeting on 4th November, 2019 that it had neither appropriated the amount of Rs. 12.65 Crores nor accepted it as full and final settlement of all the dues of the Appellant and had kept the amount in sundry account. It is further submitted that the same has no relevance to the present case as the rejection of the Settlement Plan was not limited to the requirement of bank guarantee....
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.... condoned. It is further submitted that multiple litigations have been filed by the Appellant to stall the approved Resolution Plan. Reference is made to 13 different litigations in connection with the Corporate Insolvency Resolution Process under the ruse of a settlement offer. It is submitted that the settlement offer emanating from a Promoter and Managing Director of the Corporate Debtor is an attempt of defeating the Resolution Process when the Resolution Plan of the Successful Resolution Applicant has been approved by 100% vote shares of the Committee of Creditors members. It is further submitted that expression of interest was invited twice and on both occasions the Resolution Applicant was directed to improve its offer in comparison to the competing bidders. Finally the Resolution Plan was approved unanimously on 04th November, 2020. Approval from the Adjudicating Authority came on 20th January, 2020 i.e. after almost 15 months since initiation of Corporate Insolvency Resolution Process, delay having been occasioned on multiple occasions by the Appellant. It is further submitted that the Settlement Plan of the Appellant has been unanimously rejected by the Committee of Credi....
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.... This period is extendable by 15 days if this Appellate Tribunal is satisfied that there was sufficient cause for not filing the appeal within the prescribed period. It is indisputable that the period of limitation prescribed under Section 61(2) is a special provision which overrides the provisions of Companies Act dealing with appeals and period of limitation prescribed therein. A plain reading of the provisions contained in Section 61(2) makes it amply clear that ordinarily an appeal preferred against an order of the Adjudicating Authority under Part-II of the 'I&B Code' is required to be filed within 30 days and only in exceptional circumstances when this Appellate Tribunal is satisfied that Appellant was prevented by any sufficient cause from preferring the appeal that the period of limitation can be extended but such period shall not exceed 15 days. Therefore, it has to be seen whether the appeal, if not preferred within the prescribed period of 30 days, has been preferred within the extended period of 45 days and if so, whether the explanation offered for delay in preferring the appeal does constitute a sufficient cause which prevented the Appellant from preferring the appeal....
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....he extended period of limitation has no substance and the same is overruled. 9. Yet another aspect of this issue is whether the Appellant has carved out a sufficient cause for condoning the delay of 14 days and for extension of period of 14 days beyond the prescribed period of 30 days in filing the appeal. It is not in controversy that the Corporate Insolvency Resolution Process under the 'I&B Code' is a time bound process and strict compliance of the timelines and adherence to the Schedule in terms of the prescribed Regulations has to be insisted upon. In the instant case, the Appellant received the copy of the impugned order on 27th January, 2020. It is brought to our notice that on the same day the Appellant filed Writ Petition No. 1926/2020 before the Hon'ble High Court of Madras though in para 10 of the Memo of Appeal the Appellant has declared that he has not previously filed any Writ Petition with regard to the impugned order. Same is true in respect of para 6 of the Memo of Appeal wherein the Appellant has declared that the appeal is filed within the prescribed time from the date of uploading of impugned order. This speaks of gross carelessness in drafting the appeal. Howe....
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....udicating Authority declined to set aside the order of admission with observations that settlement with all the Creditors with approval of 90% of the voting shares of the Committee of Creditors would be the proper course to be adopted within the mechanism of Section 12A subject to filing of an application by the Union Bank of India for withdrawal of application under Section 7 of the 'I&B Code'. The order dated 29th July, 2019 passed by the Adjudicating Authority came to be assailed before this Appellate Tribunal in Company Appeal (AT) (Insolvency) No. 921 of 2019 which was decided on 6th September, 2019 against the Appellant with observations that there was no illegality in the impugned order. However, this Appellate Tribunal granted liberty to the Appellant to move an application under Section 12A for settling the claims of all the creditors including the guarantors. This Appellate Tribunal, taking note of the submissions made on behalf of the Financial Creditor- Union Bank of India that the Resolution Plan has already been approved by the Committee of Creditors, further observed:- "9. If an application u/s 12A is filed by the Appellant, the 'Committee of Creditors' may decide ....
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....lined to accept the request of Appellant to issue Bank Guarantee for Rs. 10.79 Crores towards Corporate Insolvency Resolution Process cost from the amount received, same being not in consonance with its stand before this Appellate Tribunal and the Hon'ble Apex Court. Page 138 of the appeal paper book is the communication from the Appellant to the Resolution Professional requesting for re-scheduling the meeting of Committee of Creditors from 4th November, 2019 to 15th November, 2019 to enable it to participate in the meeting while submitting that to discharge its obligation of arranging the Bank Guarantee it was raising money by redemption of investments which was likely to be settled by 4th November, 2019 and he undertook to transfer Rs. 10.79 Crores towards Corporate Insolvency Resolution Process cost to Union Bank of India to facilitate issuance of Bank Guarantee as mandated under Corporate Insolvency Resolution Process Regulations. It further emerges from Page 152 (Annexure-A18) that only a Settlement Plan dated 30th October, 2019 as submitted by the promoters of 'M/s. Empee Distilleries Limited' to Union Bank of India was forwarded to Resolution Professional and the requisite F....
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....s after due deliberations and application of mind. Note dated 31st October, 2019 submitted by the Resolution Professional in regard to comparison of the Successful Resolution Plan with the Settlement offer of the Appellant forming Pages 142-151 of the appeal paper book clearly brings it to fore that upon completing analysis, Resolution Plan was found better than the Settlement offer. Three reasons assigned for non-acceptance of the Settlement offer, as already noticed, are that it did not disclose source of funds besides being ambiguous in regard to instalments plan for payment of Rs. 124 Crores towards tax liabilities and for containing waivers and reliefs etc. like that of a Resolution Plan which could not be the conditions incorporated in a Settlement offer. The Settlement Plan was rejected by the Committee of Creditors in presence of the representatives of the Appellant in its meeting dated 4th November, 2019. Wading through pages 152-163 of the appeal paper book, it emerges that apart from the procedural non-compliances, the Settlement Plan submitted by the Appellant was found not to be better in comparison to the Successful Resolution Plan submitted by the Respondent No.8. Th....
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....e debt due from the defaulting companies. In the new approach, there is a calm period followed by a swift resolution process to be completed within 270 days (outer limit) failing which, initiation of liquidation process has been made inevitable and mandatory. In the earlier regime, the corporate debtor could indefinitely continue to enjoy the protection given under Section 22 of the Sick Industrial Companies Act, 1985 or under other such enactments which has now been forsaken. Besides, the commercial wisdom of CoC has been given paramount status without any judicial intervention, for ensuring completion of the stated processes within the timelines prescribed by the I&B Code. There is an intrinsic assumption that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan. They act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. The opinion on the subject-matter expressed by them after due deliberations in CoC meetings through voting, as per voting shares, is a collective business decision. The legislature, consciously, has not provided any ground....
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....on between creditors and debtor, the final decision has to be an agreement among creditors who are the financiers willing to bear the loss in the insolvency. (2) The legislature and the courts must control the process of resolution, but not be burdened to make business decisions. (3) The law must set up a calm period for insolvency resolution where the debtor can negotiate in the assessment of viability without fear of debt recovery enforcement by creditors. (4) The law must appoint a resolution professional as the manager of the resolution period, so that the creditors can negotiate the assessment of viability with the confidence that the debtors will not take any action to erode the value of the enterprise. The professional will have the power and responsibility to monitor and manage the operations and assets of the enterprise. The professional will manage the resolution process of negotiation to ensure balance of power between the creditors and debtor, and protect the rights of all creditors. The professional will ensure the reduction of asymmetry of information between creditors and debtor in the resolution process. xxx xxx xxx IV. The Code will ensure a collective pr....
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....tion plan under Section 30(4) of the I&B Code. The subjective satisfaction of the financial creditors at the time of voting is bound to be a mixed baggage of variety of factors. To wit, the feasibility and viability of the proposed resolution plan and including their perceptions about the general capability of the resolution applicant to translate the projected plan into a reality. The resolution applicant may have given projections backed by normative data but still in the opinion of the dissenting financial creditors, it would not be free from being speculative. These aspects are completely within the domain of the financial creditors who are called upon to vote on the resolution plan under Section 30(4) of the I&B Code. 56. For the same reason, even the jurisdiction of Nclat being in continuation of the proceedings would be circumscribed in that regard and more particularly on account of Section 32 of the I&B Code, which envisages that any appeal from an order approving the resolution plan shall be in the manner and on the grounds specified in Section 61(3) of the I&B Code. Section 61(3) of the I&B Code reads thus: "61. Appeals and appellate authority.-(1) Notwithstanding an....
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....iority to all other debts. Fifth, the resolution plan does not comply with any other criteria specified by the Board. Significantly, the matters or grounds- be it under Section 30(2) or under Section 61(3) of the I&B Code-are regarding testing the validity of the "approved" resolution plan by CoC; and not for approving the resolution plan which has been disapproved or deemed to have been rejected by CoC in exercise of its business decision. 58. Indubitably, the inquiry in such an appeal would be limited to the power exercisable by the resolution professional under Section 30(2) of the I&B Code or, at best, by the adjudicating authority (NCLT) under Section 31(2) read with Section 31(1) of the I&B Code. No other inquiry would be permissible. Further, the jurisdiction bestowed upon the appellate authority (Nclat) is also expressly circumscribed. It can examine the challenge only in relation to the grounds specified in Section 61(3) of the I&B Code, which is limited to matters "other than" enquiry into the autonomy or commercial wisdom of the dissenting financial creditors. Thus, the prescribed authorities (NCLT/Nclat) have been endowed with limited jurisdiction as specified in the ....
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....the Code as meaning a debt along with interest, if any, which is disbursed against the consideration for the time value of money. "Secured creditor" is separately defined in Section 3(30) of the Code as meaning a creditor in favour of whom a security interest is created and "security interest" is defined by Section 3(31) as follows: "3. Definitions. - In this Code, unless the context otherwise requires. - xxx xxx xxx (31) "security interest" means right, title or interest or a claim to property, created in favour of, or provided for a secured creditor by a transaction which secures payment or performance of an obligation and includes mortgage, charge, hypothecation, assignment and encumbrance or any other agreement or arrangement securing payment or performance of any obligation of any person: Provided that security interest shall not include a performance guarantee;" 34. It is settled by several judgments of this Court that in order to trigger application of the Code, a neat division has been made between financial creditors and operational creditors. It has also been noticed in some of our judgments that most financial creditors are secured creditors and most operationa....
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....sonable period after the solution is implemented. Lastly, the plan should comply with existing laws governing the actions of the entity while implementing the solutions. xxx xxx xxx 5.3.1 Steps at the start of the IRP 4. Creation of the creditors committee The creditors committee will have the power to decide the final solution by majority vote in the negotiations. The majority vote requires more than or equal to 75 percent of the creditors committee by weight of the total financial liabilities. The majority vote will also involve a cram down option on any dissenting creditors once the majority vote is obtained...The Committee deliberated on who should be on the creditors committee, given the power of the creditors committee to ultimately keep the entity as a going concern or liquidate it. The Committee reasoned that members of the creditors committee have to be creditors both with the capability to assess viability, as well as to be willing to modify terms of existing liabilities in negotiations. Typically, operational creditors are neither able to decide on matters regarding the insolvency of the entity, nor willing to take the risk of postponing payments for better futur....
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....w not restrict reorganization plans to those designed only to fully rehabilitate the debtor; prohibit debt from being written off; restrict the amount that must eventually be paid to creditors by specifying a minimum percentage; or prohibit exchange of debt for equity. A nonintrusive approach that does not prescribe such limitations is likely to provide sufficient flexibility to allow the most suitable of a range of possibilities to be chosen for a particular debtor. xxx xxx xxx 20. Rather than specifying a wide range of detailed information to be included in a plan, it may be desirable for the insolvency law to identify the minimum content of a plan, focusing upon the key objectives of the plan and procedures for implementation. For example, the insolvency law may require the plan to detail the classes of creditors and the treatment each is to be accorded in the plan; the terms and conditions of the plan (such as treatment of contracts and the ongoing role of the debtor); and what is required for implementation of the plan (such as sale of assets or parts of the business, extension of maturity dates, changes to capital structure of the business and supervision of implementatio....
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....e its authority to any other person; (i) dispose of or permit the disposal of shares of any shareholder of the corporate debtor or their nominees to third parties; (j) make any change in the management of the corporate debtor or its subsidiary; (k) transfer rights or financial debts or operational debts under material contracts otherwise than in the ordinary course of business; (l) make changes in the appointment or terms of contract of such personnel as specified by the committee of creditors; or (m) make changes in the appointment or terms of contract of statutory auditors or internal auditors of the corporate debtor (2) The resolution professional shall convene a meeting of the committee of creditors and seek the vote of the creditors prior to taking any of the actions under subsection (1). (3) No action under sub-section (1) shall be approved by the committee of creditors unless approved by a vote of sixty-six per cent of the voting shares. (4) Where any action under sub-section (1) is taken by the resolution professional without seeking the approval of the committee of creditors in the manner as required in this section, such action shall be void. (5) The com....
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....es a person to whom such debt has been legally assigned or transferred to. Be it noted that the process of insolvency resolution and liquidation concerning corporate debtors has been codified in Part II of the I&B Code, comprising of seven Chapters. Chapter I predicates that Part II shall apply in matters relating to the insolvency and liquidation of corporate debtor where the minimum amount of default is Rs. 1,00,000/-. Section 5 in Chapter I is a dictionary clause specific to Part II of the Code. Chapter II deals with the gamut of procedure to be followed for the corporate insolvency resolution process. For dealing with the issue on hand, the provisions contained in Chapter II will be significant. From the scheme of the provisions, it is clear that the provisions in Part II of the Code are self-contained code, providing for the procedure for consideration of the resolution plan by the CoC. 21. The stage at which the dispute concerning the respective corporate debtors (KS&PIPL and IIL) had reached the adjudicating authority (NCLT) is ascribable to Section 30(4) of the I&B Code, which, at the relevant time in October 2017, read thus: "30(4)- The committee of creditors may appro....
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.... defaulting companies. In the new approach, there is a calm period followed by a swift resolution process to be completed within 270 days (outer limit) failing which, initiation of liquidation process has been made inevitable and mandatory. In the earlier regime, the corporate debtor could indefinitely continue to enjoy the protection given under Section 22 of Sick Industrial Companies Act, 1985 or under other such enactments which has now been forsaken. Besides, the commercial wisdom of the CoC has been given paramount status without any judicial intervention, for ensuring completion of the stated processes within the timelines prescribed by the I&B Code. There is an intrinsic assumption that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan. They act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. The opinion on the subject matter expressed by them after due deliberations in the CoC meetings through voting, as per voting shares, is a collective business decision. The legislature, consciously, has not provided any ground to challenge t....
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....itor, or by the corporate debtor itself under Section 7, 9 and 10 of the Code. Once this is done, within the parameters fixed by the Code, and as expounded upon by our judgments in Innoventive Industries Ltd. v. ICICI Bank, (2018) 1 SCC 407 and Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd., (2018) 2 SCC 674, the Adjudicating Authority then appoints an interim resolution professional who takes administrative decisions as to the day to day running of the corporate debtor; collation of claims and their admissions; and the calling for resolution plans in the manner stated above. After a resolution plan is approved by the requisite majority of the Committee of Creditors, the aforesaid plan must then pass muster of the Adjudicating Authority under Section 31(1) of the Code. The Adjudicating Authority's jurisdiction is circumscribed by Section 30(2) of the Code. In this context, the decision of this court in K. Sashidhar (supra) is of great relevance. 46. In K. Sashidhar (supra) this Court was called upon to decide upon the scope of judicial review by the Adjudicating Authority. This Court set out the questions to be determined as follows: "18. Having heard learned counsel....
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....96 of the I&B Code. None of the specified functions of the Board, directly or indirectly, pertain to regulating the manner in which the financial creditors ought to or ought not to exercise their commercial wisdom during the voting on the resolution plan under Section 30(4) of the I&B Code. The subjective satisfaction of the financial creditors at the time of voting is bound to be a mixed baggage of variety of factors. To wit, the feasibility and viability of the proposed resolution plan and including their perceptions about the general capability of the resolution applicant to translate the projected plan into a reality. The resolution applicant may have given projections backed by normative data but still in the opinion of the dissenting financial creditors, it would not be free from being speculative. These aspects are completely within the domain of the financial creditors who are called upon to vote on the resolution plan under Section 30(4) of the I&B Code. 43. For the same reason, even the jurisdiction of the NCLAT being in continuation of the proceedings would be circumscribed in that regard and more particularly on account of Section 32 of the I&B Code, which envisages t....
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....tion professional" during the corporate insolvency resolution period. Third, the debts owed to operational creditors have not been provided for in the resolution plan in the prescribed manner. Fourth, the insolvency resolution plan costs have not been provided for repayment in priority to all other debts. Fifth, the resolution plan does not comply with any other criteria specified by the Board. Significantly, the matters or grounds - be it under Section 30(2) or under Section 61(3) of the I&B Code - are regarding testing the validity of the "approved" resolution plan by the CoC; and not for approving the resolution plan which has been disapproved or deemed to have been rejected by the CoC in exercise of its business decision. 45. Indubitably, the inquiry in such an appeal would be limited to the power exercisable by the resolution professional under Section 30(2) of the I&B Code or, at best, by the adjudicating authority (NCLT) under Section 31(2) read with 31(1) of the I&B Code. No other inquiry would be permissible. Further, the jurisdiction bestowed upon the appellate authority (NCLAT) is also expressly circumscribed. It can examine the challenge only in relation to the ground....
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....bt due or to prolong their losses indefinitely. Be that as it may, the scope of enquiry and the grounds on which the decision of "approval" of the resolution plan by the CoC can be interfered with by the adjudicating authority (NCLT), has been set out in Section 31(1) read with Section 30(2) and by the appellate tribunal (NCLAT) under Section 32 read with Section 61(3) of the I&B Code. No corresponding provision has been envisaged by the legislature to empower the resolution professional, the adjudicating authority (NCLT) or for that matter the appellate authority (NCLAT), to reverse the "commercial decision" of the CoC muchless of the dissenting financial creditors for not supporting the proposed resolution plan. Whereas, from the legislative history there is contra indication that the commercial or business decisions of the financial creditors are not open to any judicial review by the adjudicating authority or the appellate authority. 51. Suffice it to observe that in the I&B Code and the regulations framed thereunder as applicable in October 2017, there was no need for the dissenting financial creditors to record reasons for disapproving or rejecting a resolution plan. Furthe....
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....f the Code which is contained in Section 60(5) of the Code. Section 60(5) reads as follows: "60. Adjudicating Authority for corporate persons xxx xxx xxx (5) Notwithstanding anything to the contrary contained in any other law for the time being in force, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of- (a) any application or proceeding by or against the corporate debtor or corporate person; (b) any claim made by or against the corporate debtor or corporate person, including claims by or against any of its subsidiaries situated in India; and (c) any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code." 50. It will be noticed that the non-obstante clause of Section 60(5) speaks of any other law for the time being in force, which obviously cannot include the provisions of the Code itself. Secondly, Section 60(5)(c) is in the nature of a residuary jurisdiction vested in the NCLT so that the NCLT may decide all questions of law or fact arising out of or in relation to insolvency resolution....
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....contentions raised in this appeal in the context of relevant considerations governing Corporate Insolvency Resolution Process manifesting in approval of Resolution Plan by the Committee of Creditors and finally getting approval of Adjudicating Authority, we are of the considered opinion that in the instant case the Settlement Plan/ offer emanating from the Promoter stands rejected at the hands of Committee of Creditors, after comparison with the Resolution Plan submitted by the Respondent No.8, on merit. The rejection is basically in regard to structure of the Settlement Plan and procedural non-compliance is only one of the grounds of rejection. What primarily appears to have weighed with the Committee of Creditors in discarding the Settlement Plan of Promoter is its structural layout, inability of the Promoter to satisfy the Committee of Creditors qua generation of funds/ mobilisation of resources and specific and clear cut debt/ claim satisfaction mechanism. Ambiguity in regard to generation /raising of funds for translating the Settlement Plan into action as also in regard to specific schedule of payment to various stakeholders being writ large on the face of the proposed Settle....