TaxTMI 
TaxTMI 
2019 (5) TMI 1838
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....thers : Adv. Soddhesh. S. Shetye (Applicant in MA 1560/2019) Adv. Rohit Sharma, for Gannon Dunkerly ORDER Per V.P. Singh, Member (Judicial) 1. The Miscellaneous Application (MA) No. 529 of 2019is filed under section 31 of Insolvency and Bankruptcy Code, 2016 (I&BCode) in the C.P.No. 1382 of 2017 which was admitted u/s 9 of I&B Code vide order of this Tribunal dated 06.04.2018 initiating Corporate Insolvency Resolution Process (CIRP) against the Dighi Port Limited, the Corporate Debtor. 2. The MA 529/2019is filed by the Resolution Professional (RP) of the Corporate Debtor appointed vide order dated 06.08.2018. The Applicant has filed this Application under Section 31 of the I&B Code, seeking orders for approval of the resolution plan for the Corporate Debtor as approved by the members of Committee of Creditors (CoC). 3. After the initiation of the CIRP, the Interim Resolution Professional published Public Announcement on 09.04.2018 calling upon the creditors of the Corporate Debtor to lodge their claims in the requisite form by 20.04.2018. Based on the claims admitted up to 20.04.2018, the IRPconstituted the CoCon 25.04.2018. The composition of the CoC was later revis....
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....nt Payment A CIRP Costs As per Actuals As per Actuals In priority to any other payments B Employee & Workmen 0.02 Crore 10% of Admitted Amount or Liquidation value, whichever is higher Within 30 days from the effective date C Operational Creditors (Other than Employees and Workmen) 26.36 Crore (Excl. MMB claim) 10% of Admitted Amount Within 30 days from Effective Date (in priority to FCs) D Form F Creditors (Other than Operational or Financial) NIL NIL NA E Financial Creditors (FC's) 3074.51 Crore Rs. 651.12 Crore Less A, B, C and D Within 30 days from the Effective Date Payment under the concession agreement F Maharashtra Maritime Board (MMB) 15.38 Crore Rs. 11.38 Crore Within 30 days of verification by JNPT Capex Funds G Equity Infusion for Improving Operations - Rs. 190.78 Crore Within six months from Effective Date 10. The Plan states that as on 20.11.2018, the total amount claimed by Form F Creditors (Who are neither Operational Creditor nor Financial Creditors) is Rs.7,11,15,012/- all of which is still under verification and thus their claim is neither admitte....
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....an is defined as either the date of receipt of a certified copy of the NCLT Approval order or the date of receipt of approval from MMB under the Concession Agreement, whichever is later. 15. It is stated in the Resolution Plan that the Resolution Applicant shall constitute the monitoring committee comprising of the Resolution Professional, the representative of the Resolution Applicant, representative of the Financial Creditors and such other persons as may be nominated by the Adjudicating Authority. The term of the monitoring committee is provided from the date of approval of the Plan until the date of payment to the financial and operational creditors. 16. The resolution professional and resolution applicant is directed to appoint Mr O.P. Gahrotra, IAS(Retd.) (M. 9867504890) as the person nominated by this Tribunal to the monitoring committee as proposed under the approved resolution plan. 17. The Plan provides that the Resolution Applicant together with its nominees shall hold 100% shareholding in the restructured share capital of Corporate Debtor. On and from the capital restructuring date, the resolution applicant shall be in control and management of affairs of Corpo....
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....ofessionally qualified persons on the board of the Corporate Debtor as per the government norms. (d) Provides for the implementation and supervision of the resolution plan? The plan proposes for the appointment of Monitoring Committee comprising of the representative of Resolution Applicant, representative of Financial Creditors, Resolution Professional and such other persons as may be nominated by the Adjudicating Authority. (e) Contravenes any of the provisions of the law for the time being in force? The Resolution Plan does not contravene with any of the provisions of the law for the time being in force. 22. The Resolution Plan was put to the vote on 01.02.2019- 02.02.2019pursuant to the decision in 15thCoCmeeting and rejection of the resolution plan of Adani Ports & SEZ on 30.01.2019-31.01.2019. As per section 30(4), this resolution plan of JNPT was approved by 99.38% of the CoC as per details below: Sr. No. Name of Creditor Voting Share (%) Voting for Resolution Plan 1. Bank of India 16.31 Assented 2. Indian Overseas Bank 12.24 Assented 3. Punjab National Bank 10.45 Assented 4. ....
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....ni, under the head source of funds "the upfront Cash was to be funded out of the internal accruals of the Resolution Applicant or any other source post the Acquisition". MA 1147/2019 27. The MA 1147/2019 is filed by Veritas (India) Limited (VIL), Veritas Infra & Logistics Private Limited (VILPL) and VeritasPolychem Private Limited (VPPL), collectively referred to as Veritas. The Veritas part of Groupe Veritas and are sub-lessees and sub-concessionaires of the Corporate Debtor. The relief sought in the present application are to allow the Veritas to receive a copy of the resolution plan and intervene in the proceedings for approval of the resolution plan of JNPTand to reject the resolution plan of JNPT or alternatively to direct modifications in the resolution plan to ensure that the rights, title and interest of the Veritas on the insolvency commencement date in relation to the 'Mega Project' and as sub-lessees and subconcessionaires is maintained. 28. The Veritas aggrieved by the actions of the Resolution Professional of Dighi Port Limitedinsofar as he has refused to share with the Veritas copy of the resolution plan or the relevant excerpts thereof submitted by JNPTand a....
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....igations as they were before. 33. On 11.05.2017, VILPL entered into a Supplementary Sub-concession Agreement (Supplementary Sub-concession Agreement-I)with the Corporate Debtor to finance, develop, operate and maintain the berth/ waterfront of 800m maximum, alongside on the berth of the Dighi side or as the case may be, of Dighi Port. 34. On 25.05.2017 VILPL and VPPL entered into an Assignment Agreement (Assignment Agreement)wherein VILPL assigned its rights under the Sub-concession Agreement and the Supplementary Sub-concession Agreement-I to VPPL. On 11.04.2017, taking into account the fact that the Veritas' project at the Dighi Port would be generating substantial revenue for the exchequer, the Industries, Energy and Labour Department of Maharashtra granted the status of "Mega Project" to the Veritas' project. 35. On 23.10.2017, the Corporate Debtor executed three sub-lease deeds, two with VIL one with VILPL (October 2017 Sub-Lease Deeds). Each of the October 2017 Sub-Lease Deeds contained clauses that provisions of the MoUs between the Corporate Debtor and the Veritas and/ or its addendums, contracts, subcontracts, sub-leases, sub-concessions and agreements shall conti....
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....ded that the consequent to the amalgamation, the property of the sick company would start vesting in the transferee company and the concerned statutory authorities would affect the necessary changes in the licenses, permissions, approvals. 41. The Delhi Development Authority (DDA) challenged the rehabilitation scheme by raising demand for "unearned increase" upon being requested to effect change in its records. The question before the Hon'ble Delhi High Court was whether the rehabilitation scheme approved by the BIFR would have an overriding effect to take away the rights of the DDA to recover unearned increase. Holding that the DDA was entitled to charge unearned increase before effecting the change in its records, the Delhi High Court observed as under: "We fail to appreciate as to how by a deed of amalgamation the terms of the perpetual lease deed can be said to have been altered. Since the DDA was not a party to the scheme its rights cannot be affected, and the order passed by the BIFR does not bind the DDA (emphasis supplied)." 42. It is submitted that having entered into contractual and property transactions with the Veritas, it is not permissible for the Corporate D....
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....voidance Application reveal existence of other entities, in particular, one Dighi Oil Storage Pvt. Ltd. (a wholly owned subsidiary of IMC Limited having lease rental of Rs.8 per square meter per year), which pay lease rentals and premiums that are considerably less than the lease rentals and premiums paid by the Veritas the Corporate Debtor. In the circumstances, it is difficult to fathom why the RP is seeking avoidance of only the Sub-Lease Deeds in favour of the Veritas. 47. The Veritas has thirdly contended that they have incurred considerable expenses under the various agreements executed between them and the Corporate Debtor, and they cannot be modified at this juncture. It is submitted that the proposed setting up of the integrated complex including the PVC Plant has also been given the status of "Mega Project" by the Government of Maharashtra, and it would generate employment for approximately 5000 persons and import close to 2.85 million metric tonnes of cargo annually which would result in significant revenue gain for the Public Exchequer. 48. Therefore, it is submitted that having acted upon the representations made by the Corporate Debtor and having expended substa....
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....et is not with the borrower, but with the lessee under a valid lease, the secured creditor cannot take over possession of the secured asset, until the lawful possession of the lessee gets determined." 52. The Hon'ble Supreme Court reiterated the stand above in Vishal Kalsariya v. Bank of India, (2016) 2 SCC 762, in which it was once again dealing with the validity of leases created before the mortgage in favour of the borrower's secured creditors. In the said case, lenders of the borrower had sought to evict the tenants of the borrower when they were protected by the relevant Rent Control Acts. The lender banks relied upon the non-obstante clause of the SARFAESI Act, 2002 to contend that the tenants of the borrower could not avail of any protection under the Rent Control laws. Relying upon the HarshadGovardhan judgment (supra), the Hon'ble Supreme Court opined that: "A tenant cannot be arbitrarily evicted by using the provisions of the SARFAESI Act as that would amount to stultifying the statutory rights of protection given to the tenant. A non-obstante clause (Section 35 of the SARFAESI Act) cannot be used to bulldoze the statutory rights vested in the tenants under th....
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....lause is set out hereunder: "The said DPL further declares that the said VIL shall at all times during the term peaceably and quietly hold, possess and enjoy the Desired area hereby agreed under the instant sublease with their appurtenances for their own use and benefit without any eviction, interruption, Claim and or demand of whatsoever nature from the DPL and or person/ entity claiming from under or interest under the said DPL..." 57. The Veritas contends that from the clauses set out hereinabove, it is clear that the transaction between the Corporate Debtor and the Veritas envisaged that the Veritas would continue to enjoy the rights and interests arising out of the MoUs, sub-leases and sub-concessions without any hindrance. 58. It is further submitted that the rights and interest of VILPL as a Subconcessionaire have been duly permitted and sanctioned by the MMB vide the letters dated 20.02.2016 and 03.10.2017 addressed by MMB to the Corporate Debtor. The Concession Agreement dated 12.03.2002 (as amended during the 45th Board Meeting of MMB held on January 12, 2006) states that the rights of VILPL as a Sub-concessionaire will continue to be valid even after the t....
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.... share. Further, it states that on receipt of an application under section 31 of the Code, the Adjudicating Authority is to limit itself to examine if the plan approved by the COC meets the requirements of section 30(4) of the Code. Under section 31 (1) of the Code, if the Adjudicating Authority is satisfied that the resolution plan approved by the COC meets the requirements prescribed under Section 30(4) of the Code, the Adjudicating Authority shall approve the plan. Further, the scope of enquiry of the Adjudicating Authority and the grounds on which an approval granted to a resolution plan by the COC may be interfered with, have been set out in section 31(1) read with section 30(2) of the Code. It is submitted that once a resolution plan is approved, it is binding on all the stakeholders including the Applicant and the prayers as sought for by the Applicant in the captioned application cannot be granted as per the ratio laid down by the Hon'ble Supreme Court of India. In view thereof, the reliefs claimed by the Veritas herein are complete dehors the provisions of the Code. 63. It is further submitted by the Resolution Professional that the concurrent auditor in its report for ....
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.... from some other sublessees. Hence, the re-negotiated terms shall include a grant of leasehold rights over an area assessed by the Company considering other operational and infrastructure requirement of the company (except waterfront) to Veritas at commercially/market rate lease rent arrived at transparently. In case the said negotiation fails, the resolution applicant proposes to terminate all Veritas agreements as an integral part of the resolution plan and the Veritas shall be treated as Form F creditor/Operational Creditor of the Company and shall be paid accordingly at par with other operational creditors. 67. We are of the considered view that the resolution applicant in its resolution plan, cannot seek to terminate agreements that have created legal rights in third parties without adhering to the due process of law by which those agreements could have been terminated in case there was no CIRP in place. Such termination of legally binding agreements would violate the law under which such contracts are governed and thus in violation of section 30(2)(e). The termination in the present situation is based on the allegations of the terms of the Contract being onerous and agains....
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....e resolution plan. 70. At the cost of repetition, we clarify that any resolution applicant shall overtake the Corporate Debtor with all its assets and liabilities. This Bench is of the view that the Resolution Applicant has all the rights to either continue or terminate the existing agreements of the Company but only as per due process under applicable laws and this bench would not grant any exemption from liability under any Law. MA 761/2019 71. The MA 761/2019 has been filed by Adani Ports and Special Economic Zone Ltd. (APSEZ) among other things challenging the CIRP undertaken by the Resolution Professional and the CoC of the Corporate Debtor under the I&B Code. As the same has been conducted with manifest arbitrariness, irregularities and contrary to and in breach of the I&BCode, the CIRP Regulations and the process note itself, which has led to the wrongful and illegal exclusion of the APSEZ and resulted in the approval of Resolution Plan submitted by the JNPT. Following points have been emphasised by the Ld. Senior Counsel, ShriJanakDwarkadas:- 72. That on 12.10.2018, the Resolution Professional prepared and issued the Process Document underSection 25(2) (h) of th....
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....on Applicant would not be able to take away the rights of the sub-concessionaire and they will continue to subsist even after the Resolution Applicant takes over the Corporate Debtor. 80. That on 19.01.2019 Addendum No. 8 to the Process Document inexplicably withdrew the Swiss Challenge process, and APSEZrequested to file an improved Resolution Plan on or before 23.01.2019. 81. That on 14.01.2019 & 24.01.2019 CoC meetings were held and APSEZ's Resolution Plan was discussed. However, APSEZwas not given notice nor opportunity to attend the CoC meetings. This is said to be in breach of Section 30 of the I&BCode. 82. That on 28.01.2019 CoC meeting was held. APSEZ's Resolution Plan was discussed and evaluated as "H1". However, APSEZwas not given notice nor opportunity to attend the CoC meetings. 83. That on 01.02.2019 APSEZ's resolution plan was voted upon and rejected by CoC. JNPT's Resolution plan was voted and approved. It is submitted that the reasons for rejection have not been furnished till date. Therefore, it is in breach of Reg.39 (3), CIRP Regulations. It is also submitted that JNPT's Plan was conditional and therefore nonresponsive and in breach of Process Documen....
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....ant's representatives while the CoC was ongoing and sought clarification in this regard and based on clarification the Applicant's Resolution Plan was ranked H1, as per the scoring and evaluation mechanism. The makes the above abundantly clear that the Applicant was given sufficient opportunities to answer the queries and concerns raised by the COC. (iv) The allegation of the Applicant that they ought to have been given notice of all COC meetings where their resolution plan was discussed is misconceived and erroneous. In this regard, it is submitted that Section 30(5) of the Code which provides that the resolution applicant may attend the meeting of the COC in which the resolution plan the of the applicant is considered, is only a directory provision and not mandatory. The Applicant has been given adequate notice of the COC meetings whenever their presence was deemed necessary by the COC, and the Applicant has attended the COC meetings accordingly along with other resolution applicants. Over and above the applicant has attendedCOC meetings, and where the COC wanted to deliberate on the Resolution Plans internally, no notice of such COC meetings could be given to the Applic....
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....s were rejected, and the same is discussed in the later part of the order. (iii) Even if such reliefs are not granted by this Tribunal to JNPT, the JNPT Resolution Plan, as approved by the COC will go through, and the said existing sub-lease and sub-concessionaire agreements would be as per the mutually agreed terms and condition between the parties, i.e. the successful Resolution Applicant and the sub concessioner/ sub lesseedealt with as per the directions of this Tribunal. (iv) It is pertinent to mention that in the JNPT Resolution Plan, JNPT has provided for a consideration to be paid to the subconcessionaires and sub-lessees in the event their sub-concession or sub-lease agreements are terminated by JNPT subject to the approval of this Tribunal. (v) Since the APSEZalleges that the re-negotiation of the sub-lease and sub-concessionaire agreements as contemplated under the JNPT Resolution Plan renders it conditional, it may be noted that clause 3.8.3 of the APSEZ'sResolution Plan also contemplated an extinguishment of all present and future contractual liabilities arising out of the sub-concession and sub-lease agreements entered into by the Corporate ....
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....oceedings for the exclusion of time have not been decided and considering the Swiss Challenge Process may be time-consuming, the same may not be possible. However, the CoC insisted that the Swiss Challenge be undertaken in the limited time available in order to maximise the value of the Corporate Debtor. (iii) At the 10th COC meeting, the Resolution Professional communicated to the COC that JNPT had expressed its inability to take part in the Swiss Challenge Process since it is a government body under the supervision of the Ministry of Shipping, Government of India and therefore obtaining the requisite approvals might be time consuming and that given the strict timelines of the CIRP of the Corporate Debtor, the same may not be possible. Further, at this stage also there was no clarity regarding the NCLAT Proceedings. The COC, therefore, decided to decide on the negotiation process when the NCLAT Proceedings have been decided. (iv) At the 11th COC meeting, since the NCLAT Proceedings remained undecided the COC decided that the Swiss Challenge Process that was initially adopted, be kept in abeyance. (v) Consequently, at the 12th COC meeting, the COC passed ....
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....lation has no application in the present case. (iii) The APSEZ's Resolution Plan has been duly accepted by the Resolution Professional as a complaint resolution plan and accordingly been put to the vote before the COC. Therefore, there is no question of the APSEZ's Resolution Plan being rejected by the Resolution Professional. The APSEZ's Resolution Plan has been rejected by the COC members having 99.37% vote share. The approval or rejection given to a resolution plan by the COC is a matter which is in the realm of the commercial wisdom of the COC. Further, given the timeline of the CIRP, it was not possible to convene a meeting of the COC after putting the APSEZ's Resolution Plan to the vote and before the end of the CIRP Period. The APSEZ's Resolution Plan was rejected by the CoC on January 31, 2019, which was just four days before completion of the extended CIRP Period. (iv) Further, it is submitted that even if the said regulation were to apply to the present case, the non-recording of reasons for rejection of a resolution plan does not vitiate the approval granted to the resolution plan by a majority of the COC. The Hon'ble Supreme Court of India in K Sashidh....
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....n on the proposed resolution plan in the form of votes, as per their voting share. In the meeting of CoC, the proposed resolution plan is placed for discussion, and after full interaction in the presence of all concerned and the resolution professional, the constituents of the CoC finally proceed to exercise their option (business/commercial decision) to approve or not to approve the proposed resolution plan. In such a case, non-recording of reasons would not per se vitiate the collective decision of the financial creditors. The legislature has not envisaged challenge to the "commercial/business decision" of the financial creditors taken collectively or for that matter their individual opinion, as the case may be, on this count". E. The revised offer submitted by the Applicant was not put before the COC: (i) As stated above, the Hon'ble NCLAT by its order dated December 20, 2018, the last date for completion of the CIRP of the Corporate Debtor was extended till February 4, 2019. The JNPT Resolution Plan was approved by the COC on February 2, 2019, viz., before the last date of the CIRP Period. Further, Miscellaneous Application No. 529 of 2019 was filed by the Res....
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....t (JNPT) was developed as an alternative to Mumbai Port of decongesting the latter and commenced operations in 1989. It is the largest container handling port in India, handling 55% of the container cargo across all major ports in India and is ranked 34the among the top 50 container Ports in the world. Commissioned on 23rd May 1989, JNPT port occupies a prominent place among the most modern ports in India. The total land area in possession of JNPT measures to 2,987 hectares with enough backup area for developing additional facilities for future maritime requirements of the country. Today, JNPT is a fully mechanised port that uses the latest technology in handling cargo at the terminals. The JNPT has chartered India's international trade to the glorious course of success and achievements, breaking all records and creating new benchmarks. It handled 66.0 million tons of total cargo during the financial years 2017-2018. The operating income for Fy 2017-2018 amounts to INR, 1,890.88 Crores compared to INR 1,700.97 Crores during FY 2016-17. JNPT has firmly anchored itself as the major catalyst for the trade and commerce in the country and is strongly committed to providing seamless serv....
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....or the company are as follows: (a) In line with the core competency of JNPT and availability of inhouse expertise, skills, operations and management the scale-up of operation will be faster (b) Support JNPT to retain its leadership position (c) The acquisition will help JNPT capture a wider hinterland (d) Support the coastal cargo movement in the hinterland. Non-submission of performance bank guarantee. 92. JNPT has submitted that (a) the purpose of performance guarantee, is to ensure that a party is solvent enough; (b) JNPT is a Public Sector Undertaking backed by the Government of India; and (c) it could not submit the performance guarantee as "due to the elections" specific permissions are held up since the last few months. It is submitted that these contentions are untenable and fallacious on facts and in law, for the following reasons: 93. Submission of PerformanceGuarantee was an essential provision of the Process Document and had to be scrupulously complied with. The COC considered stipulation for submission of the Performance Guarantee as mandatory, as evident from the use of the terms "shall provide" in Clause 1.9.1 of the Proce....
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....cument did not indicate that the requirement to furnish Performance Guarantee will be waived off for a Government undertaking. The COC, therefore, can not selectively relax/ condone the requirement to the benefit of JNPT. It is submitted that if this is done, the process will stand vitiated because of arbitrariness and capriciousness, and displacement of the level playing field. It is submitted that it does stand so vitiated in the instant case. iv. Without prejudice to the above, even assuming COC was empowered to condone the same, there is nothing on record to show that the COC has condoned the non-submission of the Performance Guarantee. Admittedly, the COC has not considered the issue of non-submission of Performance Guarantee by JNPT. v. It is pertinent to mention that non-submission of Performance Bank Guarantee by JNPT which is a Government of India undertaking will not render the CoC decision a nullity since JNPT has "Sovereign Guarantee", which is at a very higher footing than bank guarantee and there is no reason to question the solvency of Government of India undertaking. vi. The process/ the method to be adopted for evaluation of plan matrix/ ....
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....e resolution plan; and in the process authorize the adjudicating authority to reject the approved resolution plan upon accepting such a challenge. That is not the scope of jurisdiction vested in the adjudicating authority under Section 31 of the I&B Code dealing with the approval of the resolution plan. 45. To put it differently, since none of the grounds available under Section 30(2) or Section 61(3) of the I&B Code are attracted in the fact situation of the present case, the Adjudicating Authority (NCLT), as well as the Appellate Authority (NCLAT), had no other option but to record that the proposed resolution plan concerning the respective corporate debtor (KS&PIPL and IIL) stood rejected." 98. Thus, this Adjudicating Authority cannot sit in a judicial enquiry into the commercial wisdom of the CoC in dissenting to the resolution plan of the unsuccessful resolution applicant, i.e. APSEZ and that too with a whopping percentage of 99.38%. Instead, when the CoC has approved the resolution plan of the JNPT with a majority of 99.38%, then enquiry into the "approved" resolution plan is only possible on limited grounds referred to in Section 30(2) read with Section 31(1) of ....
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....ranted on the Effective Date. f. DPL Shall be granted a (i) 100% reimbursement up to the extent of Central government's share of CGST and IGST for a period of 5 years from the Effective Date: and (II) 100% reimbursement of the Central Government's share of income tax for a period of 5 years from the Effective Date. g. Upon approval of the Resolution plan by the Adjudicating Authority, all non-compliances, breaches and defaults of DPL for the period prior to the Effective Date including but not limited to the Companies Act, Environment Protection Act, 1986 and the Coastal Zone Regulation 1991, Water (Prevention & Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 Hazardous Wastes ( Management, Handling and Transboundary Movement) Rules, 2008, Customs Act, 1962 and taxation laws including income Tax Act, 1961. Goods and service Tax, Maharashtra State Tax on Professions, Trade, calling and Employments Act, 1952 Employees' Provident Fund and Miscellaneous Provision Act, 1952, Contract Labour ( Regulation and Abolition) Act, 1970, Foreign Exchange &Management Act, 2010 shall be deemed to be waived by the concerned Government Authoritie....
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....evant Governmental Authority to transfer all licenses, consents or approvals given in the name of BIPL ( for business of the Company) in the name of the Company and direction to the relevant Government Authority to renew all licenses, consents or approvals needed for the business of the Company that have expired prior to the Effective Date. 101. The above reliefs and concessions are not granted. However, it may apply to the relevant regulatory authority for any exemption which it may be allowed as per law. The Resolution Applicant is required to submit on affidavit its approval to the Resolution Plan with modifications as mentioned above within seven days from the date of receipt of this order. 102. Any relief sought for in the Resolution Plan, where the contract/agreement/understanding/proceedings/actions/notice etc. is not specifically identified or is for future and contingent liability, is at this moment rejected. 103. The Resolution Applicant, on taking control of the Corporate Debtor, shall ensure compliance under all applicable law for the time being in force. 104. We shall clarify here that any resolution applicant shall overtake the Corporate Debtor with all it....