TaxTMI 
TaxTMI 
2020 (3) TMI 1320
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....f any meetings of unsecured creditors and meeting of shareholders for the approval of the scheme. (b) To approve either scheme A submitted by M/s. Seshasayee Paper and Board Ltd., or scheme B submitted by M/s. Sun Paper Mill Ltd., in the interest of the justice. (c) In the event honourable Tribunal approves scheme B, direct the scheme applicant, viz., M/s. Sun Paper Mill Ltd., to pay the liquidation costs of full sum of Rs. 2,73,30,264 in modification of liquidation cost offered in scheme B as approved by the CoC and thus render jus tice. (d) To provide any other relief which may be found suitable to facilitate the liquidator to discharge his function effectively and such further orders be passed or directions be given as your Lordships may deem fit and proper." Brief facts which are relevant for the consideration of this application are as follows : 1. Based on a petition moved by one of the operational creditors of the company in liquidation against the corporate debtor under the Insolvency and Bankruptcy Code, 2016 (hereinafter simply referred to as IBC, 2016 or the Code) this Bench of the Tribunal on June 21, 2017 admitted the petition and initiated the corporate insol....
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....ceed in accordance with law. He will verify claims of all the creditors ; take into custody and control of all the assets, property, effects and actionable claims of the "corporate debtor", carry on the business of the "corporate debtor" for its beneficial liquidation, etc., as prescribed under section 35 of the I and B Code. The liquidator will access information under section 33 and will con solidate the claim under section 38 and after verification of claim in terms of section 39 will either admit or reject the claim, as required under section 40. Before taking steps to sell the assets of the "corporate debtor(s)" (companies herein), the liquidator will take steps in terms of section 230 of the Companies Act, 2013. The Adju dicating Authority, if so required, will pass appropriate order. Only on failure of revival, the Adjudicating Authority and the liquidator will first proceed with the sale of company's assets wholly and thereafter, if not possible to sell the company in part and in accordance with law'." 4. Going further, the hon'ble National Company Law Appellate Tribunal had also chosen to issue guidelines if a scheme contemplated under section 230 of the Compa....
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....application under section 230 of the Companies Act, 2013 before the Adjudicating Authority, i. e., National Company Law Tribunal, Chennai Bench, in terms of the observations as made in above. On failure, as observed above, steps should be taken for outright sale of the 'corporate debtor' so as to enable the employees to continue." 5. With a view to give effect to the order of the hon'ble National Company Law Appellate Tribunal, the applicant submits that advertisements were issued by him in the newspapers Business Standard and Malai Murasu calling for expression of interest (EoI) for the submissions of a scheme and pursuant to the same two schemes came to be propounded by two scheme Applicants, namely, M/s. Seshasayee Paper and Boards Ltd. (for brevity called hereinafter as "SPBL" or "SPB" as the case may be), the fifth respondent herein and the said scheme of SPBL designated for ease of reference as scheme A by the applicant/liquidator and the other one by M/s. Sun Paper Mill Ltd. (for brevity called hereinafter as "SPML" or "SPM" as the case may be), the fourth respondent herein and the said scheme of SPML being designated for ease of reference as scheme B by the app....
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....e applicant and asking them to come forward with their final opinion. The individual opinions forwarded as their response it is seen has been extracted in detail by the applicant in the application which may not be material for being reproduced in entirety for sake of brevity, however, at the same time, observing the fact that after the above exercise, the members of the CoC had once again expressed their opinion favourably to the scheme B as propounded by SPML as compared to the scheme A as propounded by SPBL. 9. The synopsis of the respective schemes, namely, of scheme A and scheme B have also been given by the liquidator/applicant which is required to be captured for ease of reference and which is to the following effect : "Synopsis of scheme A submitted by M/s. Seshasayee Paper and Boards Ltd. (a) This scheme A submitted by M/s. Seshasayee Paper and Boards Ltd. (SPB) is a composite scheme of compromise/arrangement with and between the company, creditors and shareholders of corporate debtor and the proposed scheme of amalgamation of corporate debtor with SPB under sections 230-232 of the Companies Act, 2013. (b) This composite scheme, subject to such terms, conditions, as....
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....ted by M/s. Sun Paper Mill Ltd. (SPM) is a scheme providing only for compromise/arrangement with and between the company and its creditors and shareholders of corporate debtor. (b) The scheme B proposes to take over the corporate debtor by way of acquiring the entire assets of the corporate debtor as per the information provided by the liquidator/financial statements along with all other encumbered assets provided as security to financial creditors. (c) The envisaged arrangement scheme is to ensure the revival and continuity of business along with most effective use of the factory building, plant and machinery, and other assets of the corporate debtor. (d) The scheme B opts to write off the present equity share capital of the corporate debtor and will thereafter infuse fresh equity share capital after complying with all applicable laws of the land within 90 days from the date of the National Company Law Tribunal approving the arrangement scheme. (e) The scheme B envisage issue of shares for the funds infused in the form of capital and the balance amount infused by the SPM as a part of the arrangement scheme will be treated as secured/unsecured loans. Apart from this the SPM....
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....e matter of liquidation and the other as a Tribunal functioning as such in relation to approval of a scheme as envisaged under section 230 of the Companies Act, 2013. However, in relation to the company in liquidation acting under section 230 of the Companies Act, 2013, the liquidator has placed not one, but two schemes before this Tribunal for its consideration and has sought the directions of this Tribunal to decide which of the schemes, namely, scheme A or scheme B is to be approved. Further curiously dispensation of the meetings of the stakeholders and unsecured creditors are also sought for by the liquidator without seeking for any commensurate prayer in relation to secured creditors or other creditors if any of the company in liquidation. During the course of oral submissions in this regard, it was submitted by learned counsel for the liquidator that even the convening and holding of meetings of the secured creditors can also be dispensed with, in view of the opinion already expressed by the members of the CoC in favour of scheme B and with a view to obviate time delay. In any case, however it is also argued that his decision, namely that of liquidator is required to prevail ....
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....a plan other than scrutiny that the scheme is within parameters and ascertaining that the proponents do not suffer any disqualification and performing the administrative functions of placing it before the CoC. From the submissions made during the course of arguments of respondents Nos. 1 to 3 it is evident that even though both the schemes are almost proximate to each other in their financial outlay, save certain differences in the allocation of funds to the different stakeholders, however, in relation to disbursal of the consideration as contemplated in the schemes, since there are no preconditions laid down by SPML as compared to SPBL and the time for disbursal seems to be speedier and quicker to the secured creditors under scheme B, their preference seem to lay with the scheme B formulated and propounded by SPML. 15. Further learned counsel for the fourth respondent also submits that taking into consideration the provisions of section 230 of the Companies Act, 2013 as well as the law enunciated by the hon'ble National Company Law Appellate Tribunal at paragraph 18 of the judgment passed in Company Appeal (AT) (Insolvency) No.224 of 2018 extracted in paragraph supra, it beco....
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....hether the approval of this Tribunal of the scheme is under section 230(6) of the Companies Act, 2013 or otherwise than under section 230(6) of the Companies Act, 2013. While in the former case it is the corporate debtor which is required to bear the liquidation cost, while in the latter it is the scheme proponents. Thus, a distinction is sought to be drawn by the regulator, namely, IBBI while framing the concerned regulations in relation approval granted under section 230(6) of the Companies Act, 2013 and the approval when it is not granted under section 230(6) of the Companies Act, 2013. Even though as already stated it may not be material as regulation itself came into effect after the initiation of the liquidation process and the law which is required to govern is the one which was in vogue at the relevant point of time, however it gives a pointer to the intent of the regulator. It is also pertinent to note at this stage while still on the subject of liquidation cost, the regulation governing the liquidator's fees under regulation 4 of the Liquidation Process Regulations there seems to be some apprehension in the minds of the liquidator which has induced the liquidator to p....
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....le and intangible, movable and immovable, of the company by a registered valuer. (3) Where a meeting is proposed to be called in pursuance of an order of the Tribunal under sub-section (1), a notice of such meeting shall be sent to all the creditors or class of creditors and to all the members or class of members and the debenture-holders of the com pany, individually at the address registered with the company which shall be accompanied by a statement disclosing the details of the compromise or arrangement, a copy of the valuation report, if any, and explaining their effect on creditors, key managerial personnel, promoters and non-promoter members, and the debenture-holders and the effect of the compromise or arrangement on any material interests of the directors of the company or the debenture trustees, and such other matters as may be prescribed : Provided that such notice and other documents shall also be placed on the website of the company, if any, and in case of a listed com pany, these documents shall be sent to the Securities and Exchange Board and stock exchange where the securities of the companies are listed, for placing on their website and shall also be published i....
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....n (6) shall pro vide for all or any of the following matters, namely :- (a) where the compromise or arrangement provides for conversion of preference shares into equity shares, such preference share holders shall be given an option to either obtain arrears of dividend in cash or accept equity shares equal to the value of the dividend pay able ; (b) the protection of any class of creditors ; (c) if the compromise or arrangement results in the variation of the shareholders rights, it shall be given effect to under the provisions of section 48 ; (d) if the compromise or arrangement is agreed to by the creditors under sub-section (6), any proceedings pending before the Board for Industrial and Financial Reconstruction established under section 4 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) shall abate ; (e) such other matters including exit offer to dissenting share holders, if any, as are in the opinion of the Tribunal necessary to effectively implement the terms of the compromise or arrangement : Provided that no compromise or arrangement shall be sanctioned by the Tribunal unless a certificate by the company's auditor has been filed wit....
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.... also includes a scheme of amalgamation. The common objective to be achieved, in any case whether it be during the CIRP or during the liquidation process while considering a scheme of the nature on hand is for reorganisation of the corporate debtor in a time bound manner for maximization of value of assets of such persons and to promote entrepreneurship by balancing the interest of all the stakeholders, however the procedural approach between the two differs in view of the position that there is no prescribed procedure laid down in IBC, 2016 as well as the attendant rules and regulations framed thereunder for the consideration of schemes on hand as compared to the well laid down legal mechanism provided in the IBC, 2016 for the consideration of a resolution plan and under the circumstances IBC itself provides for recourse to be taken to the provisions for consideration of the scheme under section 230 of the Companies Act, 2016 in this regard. This might lead to differential yardstick being adopted while considering a scheme as compared to a resolution plan, e. g., while in relation to the approval of a resolution plan, the commercial decision of the CoC with 66 per cent. majority p....
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....schemes available on hand by looking into the schemes in further detail reading in light of the synopsis. Scheme A in this regard as propounded by SPBL is taken up first. The important and salient clauses with the clause number given in the schemes itself being maintained in relation to the schemes for this purpose is extracted for analysis : "(a) The nature of the scheme is given in clause 1(b) of the scheme A which is as follows : A scheme of amalgamation with Seshasayee Paper Boards Ltd. ('SPB') under sections 230-232 and other applicable provisions of the Companies Act, 2013 (with SPL being the 'transferor' or 'amalgam ating' company and the SPB being the 'transferee' or 'amalgamated' company). (b) The objective of the scheme A is detailed in clause 10 of Part IV of the scheme which reads as follows : The proposed draft composite scheme has been formulated keeping in mind the overarching objective to revive SPL, maximize the value of its assets and balance the interests of all stakeholders in con sonance with the objectives of the Code while at the same time recovering the capital which has already been sunk, to be productively re....
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....ery few mills in India. SPB will be able to extend this strength to SPL and thus ensure that it quickly revives and achieves faster financial turnaround of the operations. 26. SPB has not yet been able to meet the full requirements of all its customers in printing and writing paper segments considering the limited quantities that are available in its existing capacity. With SPL and its refurbished product mix, SPB will be in a position to open up and expand its markets. 28. Further SPB has proven credentials in turnaround of stressed/ sick units utilizing its unique and superior technical skills and finan cial prudence. In the year 2011, SPB acquired a sick unit located in Tirunelveli originally incorporated as 'Subburaj Papers P. Ltd. (SPMPL)'. This unit was under severe financial stress and was then on the verge of liquidation. SPB, through a one-time settlement with SPMPL's bankers, took control of this asset and implemented the turnaround program with its senior team and the judicious management of cost and product profiles. The said turnaround is a case study which would demonstrate SPB's prowess in managing and turning around stressed paper manufacturing u....
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.... share capital of the company, audited as of March 31, 2017 is as under : No. of shares (Rs. 10 value) Value (Rs. lakhs) Authorized share capital 5,00,00,000 5,000.00 Issued, subscribed and paid-up share capital 4,31,13,656 4,311.37 The balance in reserves and surplus including securities premium account of the company audited as of March 31, 2017 is as under : Account Balance as of 31-3-2017 (Rs. lakhs) Securities premium 7290.63 Surplus (52,950.95) Net balance (45,660.31) 42. Based on the abovementioned accumulated losses in the equity account of SPL/transferor company, the intrinsic value of an equity share of SPL (as per the audited financial statements for the year ended March 31, 2017) is Rs. (-) 96 per equity share. However, considering the interest of the existing shareholders of SPL, scheme pro poser intends to value the SPL's equity share at Rs. 1 per share, though not obliged to do so. The total amount of outstanding equity shares of SPL as of March 31, 2017 is 4,31,13,656 (four crores and thirty one lakhs and thirteen thousand and six hundred and fifty six) and accordingly the nominal value of all the equity shares of SPL works out ....
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..... Compromise/arrangement with creditors including liquidation costs (but excluding the amount set aside for contingent statutory dues) 12,740.87 45 days from effective date or upon conclusion of appeals if any initiated by any stakeholder, whichever is later. 2. Compromise/arrangement with equity shareholders of SPL. 431.13 Process of share exchange to commence after the expiry of 45 days from effective date or upon conclusion of appeals if any initiated by any stakeholder, whichever is later. 3. Amount set aside to meet contingent statutory dues. 2,128.00 Upon the materialising of this statutory liability. 4. Further capital investments for acquiring/renewing plant and machinery. 6,000.00 To be incurred over a period of 12 months post amalgamation 5. Working capital infusion 6,000.00 6. Funds for monthly overheads till such time plant goes on stream 1,200.00 Total 2,8500.00 Total projected outlay (Source of funds) : Amount in lakhs Own funds of the scheme proposer (mainly towards initial outlay as part of scheme of compromise/arrangement) 12,800.00 Combination of own and debt funds of the scheme proposer (subsequent capital investm....
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....ct over a period of five (5) years beginning with the financial year in which this scheme becomes effective. (e) It is assumed that the proposed scheme involving the transfer of the undertaking of the transferor to the transferee company would suffer registration fees of up to Rs. 30,000 and stamp duty under the Tamil Nadu Stamp Act at 2 per cent. of market value of immovable property or 0.6 per cent. of the aggregate of the market value of the shares whichever is higher. (k) However it is also required to be noted as against the original allocation in relation to compromise with creditors of different categories and members, SPBL seem to have enhanced and revised its allocation as follows as disclosed in the revised Table C as compared to the initial Table C proposed as given below : Table-C (Proposed revised scheme) Category Scheme settlement amount Compromise/Arrangement with/to financial creditors (secured)-per Table A 16,000.07 Compromise/Arrangement with/to operational creditors (unsecured)-per Table B 794.00 Provision made for CIR and liquidation costs 274.80 Amount set aside for contingent statutory dues (currently not admitted)-Now included as operational cre....
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....iew of the allocation towards the CIR and liquidation cost to the extent of Rs. 274.80 lakhs, the liquidator is more in favour of scheme A of SPBL. 24. In comparison to the scheme of compromise and arrangement by way of amalgamation as placed by SPBL in its scheme A, SPML has proposed a scheme of compromise simpliciter wherein the major beneficiary of such a compromise seems to be the secured financial creditors in comparison to the other stakeholders, including the then resolution professional and presently the liquidator thereby drawing the ire of the applicant/liquidator in comparison to the secured creditors giving their go ahead to scheme B of SPML as already noted which becomes evident on a closer analysis of scheme B the salient points of which are as follows : "A brief background of the scheme B proponent is given as follows in the scheme Name of the applicant M/s. Sun Paper Mill Ltd. CIN U21011TNI 961PLC004531 Date of incorporation 11-7-1961 Class of the company Public limited company Registered Office No. 11/6, Ratnapuri, 2nd Street, Koyembedu, Chennai-600 107, Tamil Nadu. Sun Paper Mill Ltd., was incorporated in the year 1961 by Visionary and Philant....
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....is to the following effect : "Table 1 : Distribution of payment to secured financial creditors : Sl. No. Name of financial creditor Admitted claim (Rs. in crores) Payment proposed to financial creditor (Rs. in crores) 1. Indian Overseas Bank 338.05 76.83 2. Asset Reconstruction Co. India Ltd. 185.57 42.18 3. Pridhvi Asset Reconstruction and Securitsation Co. Ltd. 158.30 35.99 Total 681.93 155.00 Proposal of workmen and employees dues of corporate debtor : The amount due towards the employees and workmen dues, based on the claims admitted by the liquidator and the amount provided under the arrangement scheme is as stated below : Nature of claimant No. of claimants Admitted claim claimed (in INR) Amount proposed under the arrangement scheme (in INR) Workmen NA NA NA Employees 50 1,41,57,384.00 35,39,346.00 Non-determinable of workmen or employee NA NA NA Proposal for unsecured financial creditors : The amount due towards the unsecured financial creditors, based on the claims submitted and admitted by the liquidator, along with the amount provided in the arrangement scheme is as stated below : Sl. No. Name of un....
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....ld be sourced by the applicant from the reserves and surplus of the applicant, infusement of funds in the form unsecured loan from the group companies, directors, promoters of the group companies of the applicant. Further the applicant would like to bring to notice that the banker of the applicant 'Indian Bank, Tirunelveli Branch' has in principle approved for sanction of an amount to the tune of Rs. 165 crores as term loan and Rs. 50 crores as working capital for the successful implementation of this arrangement scheme. The letter issued by the banker 'Indian Bank, Tirunelveli Branch' in this regard is annexed as an annexure to the scheme. An amount of Rs. 10 crores will be deposited to the escrow account opened by the liquidator within 7 business days on approval of the arrangement scheme by the CoC and the balance amount will be deposited to the escrow account opened by the liquidator within 90 days from the effective date on approval of the arrangement scheme by the Adjudicating Authority for the complete disbursement of the funds provided in this arrangement scheme to the stakeholders. Therefore the arrangement scheme is feasible and viable." 28. In addition t....
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....ication by the liquidator by way of a convenient tabulation comparing figures vis-a- vis provided under the respective schemes as pay outs to different stakeholders which reads as follows : Claim admitted Settlement proposed by Seshasayee Paper and Boards Ltd. Settlement proposed by Sun Paper Mill Ltd. Secured financial creditors (a) IOB 338,04,72,538.00 79,31,23,409.90 76,83,00,000.00 (b) Pridhvi Asset Reconstruction and Securltisation Co. Ltd. 158,30,89,052.00 37,13,61,624.70 42,18,00,000.00 (c) ARCIL 185,57,59,287.00 43,55,21,905.40 35,99,00,000.00 Total secured creditors 681,93,20,877.00 160,00,07,000.00 155,00,00,000.00 Unsecured financial creditors Financial creditors forming part of promoters 10,87,69,509.00 0.00 (no payment against claims filed by promoters including as operational creditors-employees) 32,63,085.27 (3%) Operational creditors (a) Employees 1,41,57,384.00 66,90,000.00 (100% to all employees other than promoters) 35,39,346.00 (25%) (b) Statutory dues and others operational creditors 51,42,96,619.80 (other operational creditors-other than emp....
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....amount payable under the schemes to the secured creditors immediately after approval if any is granted to the scheme propounded by it however, SPBL was not willing to compromise from its stand of depositing the sums assured as payable to the secured creditors after approval of the scheme by this Tribunal, but not after the expiry of 45 days from the date of approval of this Tribunal or disposal of any appeals against the scheme and whichever is later, even though SPBL had upped its offer as brought out in the replies itself from Rs. 101.04 crores to Rs. 160 crores. This condition on the part of SPBL has really rankled the secured creditors, namely, respondents Nos. 1 to 3 even though the offer of payment by SPBL is higher by around approximately Rs. 5 crores on the analogy that a bird in hand is better than two in the bushes. However, to assuage the apprehensions of the secured creditors, learned counsel for SPBL during the course of his oral submissions and also as reflected in the written submissions seem to be agreeable to drop the pre-condition in relation to conditional payment and expresses its willingness to pay the scheme amount as contemplated under scheme A propounded by ....
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....he company, pending consideration of the rival schemes, a situation to the total advantage of the company, its staff, its secured creditors and unsecured creditors developed unexpectedly. To exploit to the best advantage of those who were to otherwise to suffer of the company were to be wound up, the court directed on July 23, 1975 that both Mr. Malhotra as well as GISCO, the proponents of two rival schemes, will be entitled to bid in an open auction in the court as to the terms and conditions on which they would be willing to take over the plant of the company for the purpose of running it pending the processing and finalization of the rival schemes of compromise and arrangement." 35. The hon'ble judge in the above noted citation going further records that by virtue of consenus amongst the parties he comes to a conclusion that summons should be answered in favour of Mr. Malhotra goes on to record that under the circumstances a speaking and reasoned order may not be called for, but however chooses to do so in view of the summons being granted is charting a new unexplored, hazardous and venturesome course in company litigation especially when a winding up petition is pending. T....
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....thout losing track also factors in the judgment the necessity of keeping the concern as going concern taking into consideration the interest of the workmen and its employees and in this connection cites (page 719 of 46 Comp Cas) : "One section of the community whose interests as such are net afforded any protection, either under this head or by virtue of the provisions for investor or creditor protection, are the workers and employees of the taken over company. This is a particularly unfortunate facet of the principles that the interest of the company means only the interest of the member, and not of those whose livelihood is in practice much more closely involved." 37. It is pertinent to note that after nearly four-and-half decades, while interpreting the provisions of the IBC, 2016 the hon'ble Supreme Court in the case of ArcelorMittal India P. Ltd. v. Satish Kumar Gupta [2018] 211 Comp Cas 369 (SC) ; [2019] 2 SCC 1 while dealing with the necessity of adherence to time lines by the National Company Law Tribunal and National Company Law Appellate Tribunal, at paragraph 83 of the said judgment while quoting the legal maxim "Actus curiaeneminem gravabit"-"the act of court sha....
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....ctive schemes with the modifications to the respective schemes as represented before the CoC, liquidator and before this Tribunal shall be entitled to upwardly revise the compromise/settlement amount offered to the creditors and in case of such upward revisions made, the said amount shall be distributed to each of the creditors in proportion to their already promised distribution ratio. This exercise is directed to be undertaken with a view to maximize the value of the assets of the company in liquidation and thereby to the benefit of the creditors ; (C) Both the scheme proponents shall simultaneously submit their respective schemes in a sealed cover before this Tribunal as well as with the liquidator within a period of one week from today ; (D) In view of the wide powers vested with this Tribunal under sec tion 230 of the Companies Act, 2013, however without being bogged down by the procedural rigmarole as prescribed therein for approval of a scheme of compromise or arrangement including by way of amalgamation and at the same time however, not ignoring the views and voting of the respective stakeholders in relation to the competing schemes to be placed before them, be it a sec....
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.... the IRCP Regulations, 2016 as applicable during the CIRP of a corporate debtor. The exercise shall be completed by the liquidator within a period of 15 days from the date of this order. (F) Immediately after the authorized representative is chosen by the respective group, stake holders committee meeting shall be convened by the liquidator within 45 days from the date of this order wherein the secured financial creditors will be entitled to participate and vote on individual basis and other stakeholders represented only by their respective authorized representatives and the voting shall be done similar to the one contemplated for the approval of a resolution plan under the IBC, 2016 read with attendant regulations after proper circulation of notice to the individual stakeholder along with a synopsis of the scheme proposed by SPML and SPBL. However at the venue a copy of the scheme with annex ures shall be kept available in entirety for the perusal of the stakeholders. (G) The voting share shall be determined in accordance with section 5(28) of the IBC, 2016, save instead of financial creditors and committee of creditors specified therein, it shall be substituted with stake hold....