TaxTMI 
TaxTMI 
2021 (1) TMI 1245
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....h are relevant to the issue, in question, are, as follows; (1) C.P.(IB) No.132/BB/2017 is filed by M/s. Reliance Capital AIF Trustee Company Private Limited & Another ('Petitioner/Financial Creditor') U/s 7 of I&B Code, 2016, was admitted by the Adjudicating Authority, vide Order dated 09th August, 2019 by initiating Corporate Insolvency Resolution Process (CIRP) in respect of the Corporate Debtor by appointing by appointing the Applicant as IRP, imposing moratorium, etc. Subsequently, the IRP was confirmed as RP. (2) In Pursuant with Regulation 6 of IBBI, Regulation 2016, the Applicant issued a Public Announcement in Form A on 14.08.2019 in English and Kannada Newspapers, calling upon creditors of the Corporate Debtor to submit their claims to the Applicant on or before 28.08.2019. The Applicant also prepared the final list of Creditors of the Corporate Debtor. The COC at its 2nd meeting held on 09.10.2019, approved the invitation for expression of interest in Form-G and authorized the Applicant to publish the same. The COC also approved the evaluation matrix to be used for scrutinizing the Resolution Plans to be received by the Applicant. A publication s....
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....eceived two valuation reports i.e. three from each set of valuers and details are as under: Set 1: (1) Mr. Aswartha M (Regn. No: IBBI/RV/02/2019/11914): For valuation of plant and machinery (2) Mr. Inturi Veeraiah (Regn. No: IBBI/RV/01/2018/10058): For valuation of land and building and (3) Mr. Venkata Subbarao Kalva (Regn. No: IBBI/RV/04/2019/11140): For valuation of securities and financial assets Set 2: (1) Mr. K.G Ramesh (Regn. No: IBBI/RV/02/2019/11417): For valuation of plant and machinery (2) Mr. S. J. Ranganatha (Regn. No: IBBI/ RV/ 04/2018/ 10069) : For valuation of land and building and (3) Mr. Ravindra Narayana Rao (Regn. No: IBBI/RV/04/2019/11084): For valuation of securities and financial assets (6) The fair value and liquidation value of the Corporate Debtor as determined by Two different sets of registered valuers are set out below: Registered Valuer Fair Value (Rs.) Liquidation Value (Rs) Set 1 of the registered valuers 22,88,70,961 17,58,04,303 Set 2 of the registered valuers 24,04,78,783 18,55,24,245 (7) At the 6th meeting held on 20.05.2020, the CO....
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.... email dated 29.07.2020 which was allegedly authorized by a Board resolution dated 27.07.2020, however the Board of Directors of the Corporate Debtor had been suspended under the Code with commencement of the CIRP and the resolution could not have validly passed and resolution plan has not been preceded by the fulfillment of the mandatory requirement. Further, the largest Financial Creditor also expressed the concerns on submission of the resolution plan by the Corporate Debtor that they not have any confidence in the Corporate Debtor and same concern was also reiterated by the authorized representative of the homebuyers. The question of approval/rejection of this resolution plan submitted by the Corporate Debtor was agreed to be put for vote by way of e-voting. Subsequently, after considering the suggestion of the COC expressed at the 8th COC meeting, the Resolution Applicant submitted the Resolution plan by way of an email dated 04.08.2020. (10) The salient features/terms of the Resolution plan of the Resolution Applicant ,are as under: a) The Resolution Applicant, Koncept Shelters, is a partnership firm engaged in real estate and construction activity since FY ....
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.... the apartment units to the homebuyers within a period of 4 years from the date of approval of resolution plan. The homebuyers, who do not avail of this option, the Resolution Applicant agreed to pay back the advance payment received by the Corporate Debtor towards sale consideration, after deducting an amount of Rs. 5,000 per sq. feet of the sold area and the amount shall be paid to them in 8 quarterly installments commencing one year after the Hon'ble NCLT approved the Resolution plan. f) The Resolution Applicant proposes nil amount for the unsecured Financial Creditors i.e, the project Lake Towers buyers, since there is no underlying assets/land on which the construction of apartments to the Fortune Lake Towers investors can be made. If the land pertaining to the development of the project is made available to them by order of this Hon'ble Tribunal, the Resolution Applicant shall on discussion with the creditors execute the necessary project. g) The Resolution Applicant proposes nil payment towards the Government dues of the Corporate Debtor as they would have received nil in the event of liquidation in accordance with Section 53 of the code or if the a....
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.... Corporate Debtor, considering the feasibility and viability and the manner of distribution proposed, approved the Resolution plan of the Resolution Applicant by an overwhelming majority. The Resolution plan, apart from being in compliance with the provisions of the Code and the CIRP regulations, represents an avenue for the Corporate Debtor to be revived, and for the maximization of the value of the assets of the Corporate Debtor, while also addressing the interest of the Creditors of the Corporate Debtor, which also includes homebuyers. 3. Heard Shri. Raghuram Cadambi, Learned Counsel for the RP, through Video Conference. We have carefully perused the pleadings of both the Parties and extant provisions of the Code and the Rules made there under and the Law on the issue. 4. Shri Raghuram Cadambi, learned Counsel, while reiterating various averments made in the Application, has further submitted that Resolution Plan submitted by Koncept Shelters was approved by COC with 95.07% positive vote; with 4.01% negative vote and 0.94% abstained from voting. The Applicant has followed the extant provisions of Code and the Rules made there under in conducting CIRP in question and the Re....
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....te of members of the COC by electronic voting system which was kept open for 24 hours as per the Regulation 26 of the CIRP Regulations. (2) The Resolution plan includes a statement under Regulation 38 (1A) of the CIRP Regulations as to how it has dealt with the interest of all stakeholders in compliance with the Code and Regulations made there under: 7. The above facts and circumstances, clearly established that the revised Resolution Plan dated 03.08.2020 submitted by Koncept Shelters, Resolution Applicant, was approved by the Committee of Creditors for Fortuna Buildcon (India) Pvt Ltd. It also provides for the appointment of a Monitoring committee consisting of the Applicant, two representatives from the secured Financial Creditors and one representative of the Resolution Applicant to effectively supervise the implementation of the plan from the date of approval date. The Applicant has filed Form H and also an affidavit by confirming all the requisite procedure under the extant provisions of law have been followed. It is settled position of law that Tribunal cannot interfere the commercial wisdom of COC in taking decision to approve the Resolution plan, unless arbitra....