TaxTMI 
TaxTMI 
2022 (4) TMI 654
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....ommittee of Creditors; and iii) Consequently, direct the Committee of Creditors of the 1 Corporate Debtor to consider the Resolution Plan dated December 29, 2020 submitted by the Applicant herein; iv) To pass any other relief as may deem fit and proper by the Hon'ble Tribunal; 2. IA(IBC)/508(CHE)/2021 is an Application which is again moved by the Applicant under Section 60(5) of IBC, 2016 seeking relief as follows; i) Grant an interim stay on the ongoing voting process of the Resolution Plan which had commenced on 17.05.2021 and which is scheduled to end on 24.05.2021 in order to facilitate the negotiations between the instant Applicant I RA and the CoC such that the Applicant's/RA Resolution Plan is also given a fair chance; or ii) Keep in abeyance any hearing and decision on any application filed by the RP under 30(6) for approval of resolution plan until the pendency of this Application; iii) To pass any other relief as may deem fit and proper by the Hon'ble Tribunal. 3. The Learned Counsel for the Applicant submitted that the Corporate Insolvency Resolution Process in respect of the Corporate Debtor viz. Bhatia Coke....
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....sing payment of Rs. 185.75 Crore within a timeline of 2 years was submitted by the Applicant to the RP. Consequent to the same, it was submitted that the Applicant herein was declared to be one of the Final prospective Resolution Applicants along with 2 other Resolution Applicants vide e-mail dated 15.09.2020. 7. It was submitted that vide email dated 24.09.2020, the RP has sought for the password for the Resolution Plan submitted by the Applicant herein much before the CoC meeting was held and the Applicant wrote a mail to the RP requesting to ascertain if the settled process was that the opening of plans would have to be in the presence of the CoC and thereafter the RP is required to evaluate the Resolution Plan and submit the same to the CoC. In response to the same, it was submitted that the RP vide email dated 24.09.2020 stated that there is no settled process for presenting the plans to the CoC and that if the Applicant herein does not provide the passwords for the plan, the said plan would be rejected. However, the Applicant had thereafter immediately shared the password. 8. The Learned Counsel for the Applicant submitted that with regard to the Resolution Plan submitt....
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....Further, certain emails were exchanged between the parties and it was submitted that the RP was asking for details from the Resolution Applicant which was beyond the scope of RP. 12. The Learned Counsel for the Applicant submitted that the RP apart from raising numerous extraneous issues, has made a couple of observations with regard to the Resolution Plan submitted by the Applicant and the said observation pertain to the transactions between the Applicant herein and one M/s. Green Gold Global Resources LLP on the ground that the said Company is a related party and therefore the transaction debars the Applicant herein to provide the Resolution Plan for the Corporate Debtor. In this regard, it was submitted that to the best knowledge of the applicant neither the directors nor the promoters of M/s. Green Gold Global Resources LLP and that of the Corporate Debtor are same. 13. The Learned Counsel for the Applicant submitted that there is absolutely no bar for the applicant to provide the Resolution Plan in respect of the Corporate Debtor as the applicant is not in violation of any of the provisions of the IBC, 2016. Further, it was submitted that the aforementioned purported Rel....
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.... RP has not assigned any concrete, specific reasons for rejecting the Resolution Plan of the Applicant and has rather provided a vague, ambiguous and open-ended reasons for rejecting it, that too after having sought various details and information. 16. The Learned Counsel for the Applicant submitted that the Applicant vide email dated 06.01.2021 requested the RP to provide further details of the purported violations of the RFRP and the response provided by the RP vide email dated 06.01.2021 is as follows; "The Non Compliance has been shared with CoC. By this Trick you are trying to stall the Resolution Plan at the instance of Ex-promoters Bhatia. Besides you are not H1" 17. The Learned Counsel for the Applicant submitted that the above said response of the RP is untenable and unsustainable as the Resolution Plan submitted by the Applicant has no association with the erstwhile promoters and management of the Corporate Debtor and therefore there is no question of playing any kind of trick to stall the CIRP of the Corporate Debtor. It was submitted that the RP is the one, who for the reasons best known to him has been creating multiple obstacles and hu....
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....e CoC members by RP on 08.04.2021. RP had at all occasion shared the plan of RARE ARC with the CoC members despite the plan not being compliant to the Code, Regulations, RFRP and Eol. He further informed the members that RARE ARC was requested to provide details of transactions with GGGRL which was not provided despite several remainders as on 12th April 21. RP apprised the members on 1. Legal and financial experts opinion, which he relied upon 2. Legal opinion obtained from Adv Vikram Hedge (Adv on Record Supreme Court of India) 3. RBI Circular which disqualify the ARC and RARE ARC sell confession in Jeypore Sugars Limited case. 4. Judgments of Hon'ble Supreme Court in Anurag Jagatram in connection with Section 29A ineligibility. Also the Hon'ble Supreme Court has asked the provision of 29A has to be looked upon the principles of "See Though" 5. Fraudulent diversion of funds report confirmed by the forensic audit experts and the matter pending before Hon'ble NCLT. 6. Transaction with gold green which clearly establishes the disqualification. 7. The other RA may use this as a shield and take the dis....
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....(f), the resolution professional (acting on the instructions of the CoC) is of the opinion there is a conflict of interest with the resolution applicant participating in the resolution plan submission process. Rare ARC has submitted the details of their proposed investor, M/s. Aqua Terra Logistics Pvt. Ltd. (ATPL), which is a part of an Indian multinational group engaged in manufacturing/trading of coke, coal and iron ore. The group has the following companies. a. Aqua Terra Logistics Pvt. Ltd. b. Rawmet Resources Pvt. Ltd. c. Terramin Resources Pvt. Ltd. d. Avani Resources Pte. Ltd. In the 11th CoC meeting dated 19.11.2020, while the erstwhile promoters were presenting their proposal to the members, they stated that their investor was Avani Resources Pte Ltd., which is a part of the same group company as Aqua Terra, who is the proposed investor of Rare ARC. It is inferred that both the ex-directors and promoters and Rare ARC are proposing the same investor as their source of fund. Hence there may be conflict of interest in the participation of Rare ARC through Aqua Terra Logistics Pvt. Ltd. 4. As per ....
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....C and as per Section 30(1) of IBC, 2016 the Resolution Applicant is required to submit an affidavit that he is eligible under Section 29A of IBC, 2016 along with Resolution Plan. Further Regulation 36A of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 states that the RP shall specify the criteria for the prospective Resolution Applicant as approved by the CoC in accordance with clause of Section 25(2)(h) of IBC, 2016. At this juncture, it is relevant to refer to Regulations 36A(8) and (9) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, which is extracted hereunder; 36A. Invitation for expression of interest. (8) The resolution professional shall conduct due diligence based on the material on record in order to satisfy that the prospective resolution applicant complies with (a) the provisions of clause (h) of sub-section (2) of section 25; (b) the applicable provisions of section 29A, and (c) other requirements, as specified in the invitation for expression of interest. (9) The resolution professional may seek any clarification or additional information or doc....