TaxTMI 
TaxTMI 
2022 (3) TMI 866
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....5/ND/2021 has been filed under Section 30(6) of the Insolvency & Bankruptcy Code, 2016, (the Code) on behalf of the Resolution Professional (RP), seeking approval of the Resolution Plan. 3. Since the prayers of both the I.As. are inter-connected to each other, we will dispose both the I.As. by this Common order. 4. Brief facts in respect of I.A. 265/ND/2021 are that the CIRP was initiated against the Corporate Debtor vide order dated 14.10.2019 and Mr. Rakesh Kumar Jain was appointed as Interim Resolution Professional of the Corporate Debtor. Thereafter on 29.01.2020, Mr. Sandeep Kumar Bhatt was appointed as Resolution Professional. 5. Subsequently, in the last meeting of CoC held on 23.11.2020, the members of CoC and applicant were informed about revised offers of the Resolution Applicant and it was also informed that only one Resolution Applicant was allowed to revise its offer. 6. The case of the applicant, Mr. Nitin Gupta is that the applicant raised an objection against one resolution applicant, Jagriti Plastics Limited on 22.11.2020, on which the Resolution Professional replied that no such opportunity was granted, but as per the documents the offered amount was e....
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....ondent No. 1 and Respondent No. 1 was never biased towards Jagriti Plastics Limited. iii. The resolution professional further mentioned that admittedly jagriti Plastics Limited will receive 50% of amount proposed to operational creditors in case of approval of any resolution plan and applicant failed to produce the fact that all the resolution applicants had revised proposed amount to be paid to operational creditor. Further, the applicant has failed to demonstrate that how benefit of one creditor can be prejudice to other creditors or the applicant. iv. The applicant pointed out that as per clause 1.13, it has been clarified that any amount received from the avoidance application shall be vested in Corporate Debtor only. The funds of the corporate debtor were siphoned off by the suspended directors and as per law the same should be refunded in the accounts of the corporate debtor only. Reply of Respondent No. 2: i. That subsequent to receiving the last and final resolution plans Resolution Professional had sent an email dated 03.11.2020 (sic) to the Committee of Creditors and all the RA's namely M/s. Mahima Life Sciences Private Limited, Pun....
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....uage created confusions for resolution applicants in designing payment timelines. b. Criteria II - NPV Factoring (weightage-150% - 15 marks): it is argued that in case of 100% upfront payment, how this criterion will help them in gaining marks. c. Criteria III - Initial fresh equity infusion for improving operations of the Corporate Debtor-(weightage 50%-5 marks)-it has been pointed out that the matrix is not clear about in case of upfront payment how the marks will be dealt with in this criterion. d. Criteria IV - definite source of liquid funds...net worth will not be considered-(weightage 150%-15)- it is stated that the said clause automatically will outcast the respondent No. 3 and will be favourable to respondent No. 6, Jagriti Plastics Limited. e. Criteria V - Term of resolution plan (weightage 50%-5 marks)- it is reiterated that in case of upfront payment how the marks under this criterion will be dealt with. f. Criteria VI - experience of promoters of resolution applicants in same line of business- (weightage 250%-25)- it is submitted that the resolution professional again invited resolution plans from previous Resolution Applica....
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....there final offers. These emails and minutes of the meetings of CoC show that the contention of the applicant, Mr. Nitin Gupta has no leg to stand. Mover over no authentic endeavour is placed on record to show that three pages were changed by Ld. Resolution Professional. Hence, the arguments on behalf of Ld. Counsel for ex-directors stands discarded. 14. Secondly, the applicant had argued that the outcome of pending application of Section 66 will give undue benefits to the Resolution Applicant Jagriti Plastics Limited. In this regard the resolution professional. The Resolution Professional vide affidavit dated 28.01.2022 has submitted that the clause 1.13 of the approved plan has been now been amended by the Resolution Applicant which now read as follows: "1.13. all amounts received by the Corporate Debtor pursuant to the exercise of powers and obligations by the Resolution professional under Section 43 to 51 (both inclusive) and Section 66 of the Code ("Avoidance Transaction Amount") shall be utilised in payment of the outstanding amounts of the operational creditors subsequent to settlement as per Schedule-IV (OC Settlement Amount) and any amounts in excess thereof sh....
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....ue to pandemic. RA Puneet Iron and Steel Pvt. Ltd. took time to revise its Plan and email was sent to all RAs to submit final resolution plan by 20.07.2020. Thereafter, M/s. Puneet Iron and Steel Pvt. Ltd. also submitted its final offer and on 24.07.2020 all the resolution plans presented before the CoC again alongwith evaluation matrix and after Voting received by RP on 21.08.2020 it is seen that the Resolution Plan of M/s. Jagriti Plastics Pvt. Ltd. was approved. f. However, the other three RAs filed applications before this Tribunal and this Tribunal vide order dated 29.09.2020 directed the RP to take resolution plans of the all RAs again analyse and put to CoC. Thereafter, the RP invited all the RAs to submit resolution plan by 01.11.2020. The RP received following Plans: i) Mahima Life Science Pvt. Ltd. ii) Puneet Iron & Steel Pvt. Ltd. iii) Lauls Ltd. iv) Jagriti Plastics Limited. g. It is stated that in 13th meeting of CoC held on 23.11.2020 the resolution plans were discussed in details and as per voting results obtained on 02.12.2020 the Resolution Plan of M/s. Jagriti Plastics Limited was approved with 100% voting shar....
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....t of other debts of the corporate debtor; (b) provides for the payment of debts of operational creditors in such manner as may be specified by the Board which shall not be less than- (i) the amount to be paid to such creditors in the event of a liquidation of the corporate debtor under section 53; or (ii) the amount that would have been paid to such creditors, if the amount to be distributed under the Resolution Plan had been distributed in accordance with the order of priority in sub-section (1) of section 53, whichever is higher, and provides for the payment of debts of financial creditors, who do not vote in favour of the Resolution Plan, in such manner as may be specified by the Board, which shall not be less than the amount to be paid to such creditors in accordance with sub-section (1) of section 53 in the event of a liquidation of the corporate debtor. Explanation 1. -- For removal of doubts, it is hereby clarified that a distribution in accordance with the provisions of this clause shall be fair and equitable to such creditors. Explanation 2. -- For the purpose of this clause, it is hereby declared that on and from the d....
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....f the Corporate Debtor has been provided in clause 5.1 Part-II, page 22 of the Resolution Plan. 24. The next requirement envisaged by Section 30(2)(d) is that it must provide for the implementation and supervision of the Resolution Plan. Clause 5.1.1 Part-II of the Resolution Plan provide for the Monitoring Committee consisting of equal representation of FC, RA and Resolution Professional. 25. Other conditions in terms of Section 30(2)(e)(f) of the Code provide to ensure that the Resolution Plan does not contravene any of the provisions of the law and conforms to such other requirements as may be specified by the Board. In this regard a declaration has been made at clause 7 Part-II of the resolution plan. 26. Ld. Counsel appearing for the Resolution Applicant submitted that the Resolution Plan is as per the provisions contained in the Code and so, the same may be approved. In terms of Regulation 39(4) of the CIRP Regulations, the Resolution Professional has filed compliance certificate in Form-H which is annexed as Annexure-A-9 at page 139. It has been submitted in the application and in Form H duly certified by Resolution Professional that the final Resolution Plan meets ....