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TaxTMI 
TaxTMI 
2021 (9) TMI 412
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....dents : Mr. Jishnu Saha, Sr. Advocate with Mr. Abhijit Sarkar, Advocates for Respondent No. 1. Mr. Sidhartha Barua and Mr. Praful Jindal, Advocates for Respondent No. 2.Mr. Anand Verma and Mr. Abhishek Prasad, Advocates for Respondent No. 3. JUDGMENT DR. ASHOK KUMAR MISHRA, TECHNICAL MEMBER 1. The present appeal has been filed by the 'Appellant' - 'PLBB Products Pvt. Ltd' (PLBB) under Section 61 of the 'Insolvency and Bankruptcy Code, 2016' (in short 'Code') against the order dated 10.02.2021 passed by the 'Adjudicating Authority' (National Company Law Tribunal), Guwahati Bench in I.A No. 05 of 2021 in CP(IB)/09/GB/2019. 2. The Adjudicating Authority with a reasoned order has passed the following orders: 1. "Conside....
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....s invoked for Rs. 5,42,94,868.00 as on 31.10.2001. (g) 30.04.2005 - OTS worked out way back in 2005 for Rs. 215.89 lacs, but Rs. 92.24 lacs was paid and the balance amount was not paid as per OTS arrangement. (h) The claim has been filed by the FC for Rs. 133,54,94,330.00 as on 1.12.2018 in their application filed under Section 7 of IBC against the Corporate Guarantor for the loan disbursed amount of Rs. 3,07,71,127.00 by the IDBI to the Principal Borrower NBL. (i) The CD here is in operation and the claim of Rs. 133,54,94,330.00 against the Corporate Guarantor for the loan of Rs. 3.07 crores might have pushed the MSME Unit to a point of NO RETURN / not to make an attempt to repay such a big amount. 2. Th....
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....o raised the issue of how the 'Financial Creditor' claimed 43 times of the amount of loan disbursed 21 years back when the Financial Creditor is under RBI Regulations and capping of interest rate is in operation for several years for MSME unit. The Adjudicating Authority has also raised the issue that guarantee was invoked by the original lenders - IBBI for an amount of Rs. 5,42,94,868 as on 31.10.2001. Now the Financial Creditor- SASF is claiming Rs. 133,54,94,330 i.e. 24 times of the claimed amount in the 18 years. The Adjudicating Authority has also raised the issue of OTS. 3. The Appellant - PLBB is the 'Successful Resolution Applicant' whose Resolution Plan has been accepted by 91.84% of the members of the 'Committee of Creditors' (....
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....oC in accordance with Regulation 21 (III) of the IBBI Regulation and thereby violated non-compliance of Hon'ble Apex Court judgment in the case of Vijay Kumar Jain Vs. Standard Chartered Bank & Ors. In Civil Appeal No. 8430 of 2018 vide para 13 as enumerated below: "It is also important to note that every participant is entitled to a notice of every meeting of the committee of creditors. Such notice of meeting must contain an agenda of the meeting, together with the copies of all documents relevant for matters to be discussed and the issues to be voted upon at the meeting vide Regulation 21(3)(iii). Obviously, resolution plans are "matters to be discussed" at such meetings, and the erstwhile Board of Directors are "participants" wh....
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....n provided in Regulation 21 (III) of the IBBI Regulations and it is liable to be rejected. It has also been stated by the CD that the appellant was incorporated only on 20.07.2020. In order to enable the appellant the Resolution Professional has allowed SPV and SPC to participate in the process of submitting EOI as a prospective Resolution Applicant to assist the Appellant. He has also stated that the Code has been amended for the promoters of MSME to file Resolution Plan. The intention of the legislature is that the promoters of MSME should be encouraged to pay back the amount with the satisfaction of CoC to regain the control of the CD and entrepreneurship by filing Resolution Plan which is viable, feasible and fulfils the relevant criter....
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....liefs to the promoter of the MSME as a prospective Resolution Applicant and is entitled to have opportunity to place Resolution Plan. e. The Appellant has also cited various judgments as given below but the applicability of the same is under dark as the Adjudicating Authority has only permitted for giving an opportunity to MSME to submit a concreate, composite, feasible and viable resolution plan and no other one is allowed to submit any plan other than the Resolution plan already submitted by the Resolution Applicant; * Kalinga Allied Industries India Pvt. Ltd. Vs. Hindustan Coils Ltd (Company Appeal (AT) (Ins) No. 518 of 2020- para 15 * Amit Gupta V. Yogesh Gupta in Company Appeal (AT) (Ins) No. 903of 2019 ....