TaxTMI 
TaxTMI 
2019 (6) TMI 1660
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....fter referred as CIRP Regulations, 2016) for seeking approval of the Resolution Plan, submitted by SREI Multiple Asset Investments Trust-Vision India Fund dated 11th December, 2018 (the Resolution Applicant) duly approved by the Committee of Creditors. AVERMENTS MADEIN THEAPPLICATIONINBRIEF: 2.1 This Tribunal vide order 19.07.2017 admitted the Petition filed under Section 7 of the Code and initiated Corporate Insolvency Resolution Process (hereinafter referred to as 'CIRP') read with Rule 4 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016, against Deccan Chronicle Holdings Limited (hereinafter referred to as 'DCHL' or 'Corporate Debtor'). Further vide said order, Mr. Karuchola Koteswara Rao was appointed as the Interim Resolution Professional (hereinafter referred to as IRP/RP) under the provisions of the IBC, 2016 and subsequently appointed the Applicant as Resolution Professional vide order dated 08.02.2018. 2.2 This Tribunal extended CIRP period by 90 days beyond 180 days from 15.01.2018 based on the application moved by Resolution Professional. Thus, the CIRP period of the Corporate Debtor ended on 14.04.2018. 2....
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.... Karvy financial Services Limited 976,125,457 1.19% 20 Kotak Mahindra Bank 1,835,817,779 2.24% 21 L& T Finance Limited 480,101,706 0.59% 22 Life Insurance Corporation of India 4,647,339,462 5.68% 23 Pegasus Asset Reconstruction Pvt Ltd 2,469,096,892 3.02% 24 Photon Infotech Pvt. Ltd. 93,452,711 0.11% 25 Religare Finvest Limited 1,424,401,462 1.74% 26 Suhani Trading and Investment Consultants Private Limited 3,200,265,453 3.91% 27 SBI Pension Funds Private Limited (Central Govt. Scheme) 170,920,548 0.21% 28 SBI Pension Funds Private Limited (State Govt. Scheme) 170,920,548 0.21% 29 SREI Infrastructure Finance Limited 2,969,373,143 3.63% 30 Softlink Merchants Private Limited 9,118,220 0.01% 31 State Bank of India 906,745,682 1.11% 32 Tata Capital Financial Services Limited 1,827,162,573 2.23% 33 The Jammu & Kashmir Bank Limited 842,289,000 1.03% 34 Unilazer Ventures Private Limited 364,438,487 0.45% 35 UV Asset Reconstruction Co. Limited 11,932,096,653 14.59% 36 V Shankar 457,76....
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....under Section 29A provided by the Successful Resolution Applicant. 2.11 That the Resolution Applicant i.e., SREI Multiple Asset Investment Trust-Vision India Fund was identified as the Successful Resolution Applicant and the Final Resolution Plan dated 11.12.2018 was identified as a 'Successful Resolution Plan'. The Resolution Professional issued Letter of Intent dated 01.01.2019 to the Resolution Applicant on the instructions CoC. 2.12 It is also averred, the Successful Resolution Applicant successfully furnished an unconditional and irrevocable Performance Bank Guarantee (bearing N0.077019IGPER0001) of Rs. 15.00 Crores (Rupees Fifteen Crores Only) dated 02.01.2019, from a scheduled commercial bank in favour of Canara Bank with respect to the implementation of the Successful Resolution Plan ("Performance Bank Guarantee/PBG") and the said PBG is valid up to 30.06.2019. 2.13 That on examination of the Performance Bank Guarantee dated 02.01.2019 by the Applicant / Resolution Professional she observed that though the PBG was issued for the mandated period of 6 months, the Bankers of the Successful Resolution Applicant expressed its inability to issue the same with no ....
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....to Deccan Chronicle Entities viz, DC Loan of Rs. 120.00 crores which was assigned to PIL Industries Limited and APL loan of Rs. 50.00 crores to Aviotech Pvt Limited (APL Loan) which was assigned to Future Corporate Resources Limited (FCRL) on 03.08.2012. To secure the same, promoters of DCHL executed a Non- Disposal Undertaking (NDU) together with Power of Attorney in respect of 11,28,51,000 equity shares of DCHL comprising of 54% of shareholding in the Company and also executed Memorandum of Entry mortgaging 13 properties of DCHL and personal properties of three promoters in favour of FCHL. PIL Industries Ltd and FCRL filed suites before Bombay High Court which passed an order dated 24.08.2012 restraining these Companies from creating any transfer, sale or Encumbrance etc to any third party in respect of 11,28,51,000 equity shares and properties mortgaged in favour of any third party. Further, vide order dated 16.04.2013, Hon'ble High Court passed an order for appointment of Receiver and formal attachment of total 16 properties both DCHL and APL. 3.4 It is averred, FCRL and PIL Industries Limited were amalgamated into Suhani Trading and Investment Consultants Private-Limite....
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.... is stated to have lost the right to enforce the loan by proceedings against the secured assets offered by DCHL as a Corporate Guarantee for the loan advanced to APL. 3.11 Thus, FCRPL urged this Tribunal to direct the Resolution Applicant to amend clause 11.28 of the Resolution Plan and related clauses with regard to waiver of guarantees and securities given by DCHL for the loans taken by its subsidiary Company and to provide a detailed list of properties being transferred to it by virtue of Resolution Plan and seek no objection certificate from CoC members concerned who are having a charge or claim on those particular properties. Further it sought directions to Resolution Applicant to note the status of the FCRPL as secured creditor as already held by this Tribunal. REJOINDER FILED BY APPLICANT / RESOLUTION PROFESSIONAL TO THE REPLY / OBJECTIONS FILED By M/S FCRPL 4.1 The Applicant / Resolution Professional denies the allegations and contentions made against her by FCRPL and further stated that Resolution Professional is unable to offer her comments to the commercial aspects of the Resolution Plan including the purported treatment of claim/ loan of FCRPL and further state....
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....ter of suits for recovery before the Hon'ble Bombay High Court, the Applicant avers that she is acting as a facilitator to the process and the Resolution Professional does not have any adjudicatory power and is only a facilitator to the Resolution Process and that failure to produce any registration certificate in respect of Security claimed over the assets of the Corporate Debtor, the Resolution Professional is unable to consider FCRPL as a secured creditor but only as unsecured creditor. 4.6 The Resolution Professional further contends that basing on the orders passed by this Tribunal on 17.07.2018 in IA 224 of 2018, she made requisite changes in the List of Creditors. 4.7. The Resolution Professional urged this Tribunal to direct FCRPL to withdraw its comments/submission/observations against the Resolution Professional and amend the counter affidavit and sought directions to implead FCRPL in IA No.66/2019 in view of directions sought by FCRPL. FINDINGS 5. I have heard the Counsel for Resolution Applicant and also the Resolution Professional. Counsel for Resolution Applicant filed written submissions. This Application is filed under Section 30 (6) of Insolvency & ....
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....ll stakeholders, including financial creditors and operational creditors, of the Corporate Debtor. (h) The Resolution Plan provides for (i) its term and implementation schedule (b) the management and control of the business of the Corporate Debtor during its term; and (c) Adequate means for supervising its implementation. (i) The Resolution Plan contains details of the Resolution Applicant and other connected persons to enable the Committee of Creditors to assess the credibility of such Applicant and other connected persons to take a prudent decision while considering the resolution plan for its approval. 8. The Resolution Professional filed copy of the Performance Bank Guarantee dated 02.01.2019 shown as Annexure-G at page Nos. 113-115. I have seen the performance bank guarantee (copy) which is for Rs. 15 crores. The Resolution Professional also filed undertaking given by Resolution Applicant dated 10.01.2019 shown as Annexure-H at page No. 116-118. She also filed copy of amendment of the performance bank guarantee. dated 10.01.2019 shown as Annexure-I at page Nos. 119-120. 9. The contention of the Learned Counsel for Resolution Applicant that this Tribunal....
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....ble NCLT Mumbai Bench order dated 16.04.2019 in the matter of STATE BANK OF INDIA v CALYX CHEMICALS & PHARMACEUTICALS LIMITED and relied on para 12 of the order:- Regarding the exemptions sought, the Government liabilities and statutory dues, it is worth to observe that the same should be restricted to those government liabilities which are ascertained and crystallized as on the date when the CZRP commenced. Further, on commencement of CIRP, due to pronouncement of moratorium if any tax is levied, the same can be considered for waiver as held in the decision of NCLT, Chandigarh Bench, in the case of "State Bank of India v MOR Farms Pvt Ltd" dated 15.06.2018... wherein waiver is granted in respect of tax dues. (3) Hon'ble NCLT Chennai Bench order dated 11.03.2019 in the matter of UNION BANK OF INDIA v STAR AGRO MARINE EXPORTS PRIVATE LIMITED Para 9: whether the claim of operational creditors like the Income Tax Department, Sales Tax Department or any other statutory authority's dues can be waived off under the provisions of I&B Code, 2016 and the Regulations made thereunder while approving "Resolution Plan" After referring to S.30 (2) 0b) and ....
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.... Section 30 (2) of the IBC. The Resolution Plan is for revival of the Corporate Debtor Company. In the 200 meeting of CoC held on 10.12.2018 the Resolution Plan filed by SMAIT was taken up for consideration and e-voting window was kept open from 13.12.2018 to 21.12.2018. The Resolution Plan (originally dated 28.11.2018) submitted by SMAIT dated 11.12.2018 was approved by the CoC with 81.39% voting share. Annexure-C is the copy of voting percentage. Annexure-B (Colly) is the Resolution Plan filed by SMAIT dated 11.12.2018. The Plan to be approved by CoC with 66% voting share. However, the Plan has been approved by the members of CoC having 81.39% voting share. The certificate given by Resolution Professional is marked as Annexure-E along with Affidavit given under Section 29-A by the Resolution Applicant. The successful Resolution Applicant has also furnished Performance Bank Guarantee for 15 crores. A copy of PBG is shown as Annexure-G which is valid till 30.06.2019. However, the revised PBG was issued which is valid till 30.09.2019. The Resolution Applicant has given an undertaking for extension of PBG which is shown as Annexure-H. The total claims of Financial Creditors admitted ....
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....ot be granted as it is against law. If any fraud is involved in the affairs of Corporate Debtor prior to commencement of CIRP, if any investigation is required, the same cannot be prohibited as the same is against law. However Resolution Applicant is not concerned with reference to any investigation prior to the commencement of CIRP. 15. The relief claimed in Clause 11.6 can also be granted. So far as relief sought in Clause 11.7 of the Plan which is dealing with passing an order that proceedings in CA 144 / CI / 2014 in CP No. 3/2014 is deemed to be abated. This relief cannot be granted while approving the Resolution Plan. It is open to the Resolution Applicant to move the concerned court and seek appropriate relief. The relief prayed in Clause 11.9 can be granted in favour of Resolution Applicant. 16. The Resolution Applicant has to obtain necessary approval if any required within one year as per Section 31 (4) of the Code. The Resolution Applicant further prayed for order / direction to use brand name of the Corporate Debtor. However, an Application was filed claiming exclusive right over the brand name / trademarks of the Corporate Debtor. Subject to the result of the sai....