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2021 (6) TMI 1124
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.... the application are as follows: a. Reject the resolution plan submitted by M/s Alpha Corp Development Private Limited being violative of section 30 of the Code and direct the said resolution applicant to revise the said resolution plan; b. Direct the resolution professional to consider and place all the resolution plans received till date for the consideration of CoC. 2. The Brief facts as enumerated in the application are as follows: a. The applicants are homebuyers/financial creditors of the corporate debtor (CD). CIR Process initiated against the CD on 06.06.2018. One resolution plan was received from M/s Alpha Corp Development Private Limited ('Alpha') and revised plan for four projects namely, Earth Copia, Earth Iconic, Earth Sapphire Court and Earth Tech One was submitted by Alpha on 15.10.2019. However, subsequently Alpha informed that resolution plan is only for three projects and for the fourth Project, namely Earth Iconic it will submit separately in the CIR process of M/s Celestial Estates Pvt. Ltd. The plan was put before the CoC on 11.11.2019 and same was put for e-voting. b. It is submitted that the said resolution plan did not ....
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....eceivables etc. have been proposed by the RA to be transferred to itself or self-appropriated by M/s Alpha on deemed basis, even before the RA makes its own minimal committed contribution of just Rs. 5 crores in the first year. Handing over/transferring assets worth over Rs. 1000 crores virtually belonging to the thousands of the allottees/homebuyers to a newly formed SPV or even M/s Alpha Corp is fraught with grave dangers of these being mis-appropriated and misused or even swindled in a fraudulent manner. vii. No known property is being transferred to the Corporate Debtor, EIL. It will be entitled to only such properties as would be detected only after the Effective Date (date of order of NCLT). The probability of such a detection is virtually NIL. {Sub-para 2.2 under Para 2 captioned as Object & Scope of 'Proposed Scheme for Allottees') viii. No asset worth any value has been left for the proposed new company of EIL in which allottees would be shareholders. In fact, all liabilities, complexities, problematic issues etc. have been assigned to EIL. Cash flows resulting from payments by the allottees and the agreed contribution of the RA only have be....
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....he provisions of section 25A (3-A) of the Code. The applicants have actively taken the part in the resolution process of the CD and were part of the financial creditors in class which have approved the plan with 100% voting in favour as per section 25A (3- A) of IBC, hence, the applicants should not be allowed to challenge the resolution plan as resolution plan's approval/non-approval is the commercial wisdom of CoC. Furthermore, no ground has been taken by the applicant to indicate that the resolution plan is contravening any of the provisions of the Code. Moreover, the applicants have a total voting share of less than 1 percent. It is stated that the applicants have got sufficient time to analyze the resolution plan as the plan was presented before the members of the CoC in the 18th meeting dated 18.10.2019 same was discussed in detail. The authorized representative also conducted the meeting between the allottees and Resolution Applicant on 08.11.2019 and in the said meeting it was decided that certain changes may be carried out in the resolution plan and the resolution plan was amended on the changes suggested. Hence, the resolution professional prayed that the application may ....
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....esentatives of the Homebuyers and the resolution applicant. Moreover, Special Purpose Vehicle for 4 projects fulfilled eligibility conditions and plan of Alpha was received well within time. 7. We have heard the counsels for both the petitioner and the respondents at length, perused the evidence placed on record, including the written submissions filed by both of them. It is seen that the present IA has been filed by 14 applicants. The counsel for RP has been able to prove that effectively (after excluding the applicants under joint names and those being not FC) there are only 7 applicants who had opposed to the approval of Resolution Plan, and this constitutes a miniscule proportion of the total number of FCs in class. This has not been controverted by the Counsel for Applicants herein. It is also seen that the Resolution Plan has been approved by 99.97 % of voting share of CoC. On this count we agree with submission of Counsel for RP that the applicants herein do not have locus standi to file the instant application. Nevertheless, we will deal with other objections of the Applicants and reply of RP to the same. 8. Next objection by the Applicants herein states that the Reso....
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....of CD. It is seen from the same that due opportunities have been provided to members of class of creditors (home-buyers) to give their views/suggestions before taking final voting on the Plan. Further, as seen from the said chart, the Plan of Resolution Applicant was received on 15.10.2019, which is within the time frame fixed by CoC in the RFRP. However, the plan as received can always be subject to negotiations between RA and the CoC in the best commercial wisdom of CoC. Therefore, the contention of Applicant on this count, being devoid of merit, is rejected. 11. To sum up, due to the reasons enumerated in Para 7 to 10 above, the IA as filed by Applicants, being devoid of merits, is hereby rejected. No orders as to costs. IA-05/2020 12. The Resolution Professional has filed the instant application under section 30(6) and 31(1) of Insolvency and Bankruptcy Code, 2016 (hereinafter referred as "IBC") r/w Regulation 39 (4) of the Insolvency and Bankruptcy board of India (Insolvency Resolution Process for Corporate Persons) Regulations (hereinafter referred as "IBBI (CIRP) Regulations, 2016), for seeking approval of Resolution Plan under section 31(1) of IBC in the matter of ....
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....on for expression of interest on 19.04.2019, for all projects. However, no expressions of interest were received then the member of CoC through its AR requested the applicant to invite the plans project wise also as an alternative in addition to the resolution plan for the whole company. Accordingly, the Form G was published on 22.05.2019. Pursuant to that three prospective resolution applicants namely, BPT Infra Projects Private Limited, Roma Unicon Designex Consortium ('RUD') and the Alpha Corp Development Private Limited filed the resolution plan. The plan of BPT Infra Projects Private Limited was rejected by CoC in terms of Regulation 39(1A) as the resolution plan was not as per conditions and also contravened the law for the time being in force and was running in 5 pages, furthermore, earnest money was not deposited. RUD submitted its resolution plan for Earth Towne Project only and same is approved by this authority vide order dated 05.04.2021 in CA-751/2019 in IB-401(ND)/2017. 16. It is submitted that the resolution plan along with the scheme submitted by the Alpha has been approved by the CoC by thumping majority of 99.97% in 19th CoC meeting dated 11.11.2019. There is s....
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.... Convention and Recreation Centre Private Limited, which shall be the Subsidiary/Associate Company of Resolution Applicant. Mr. Mukul Kumar and Mr. Anjana Bhatnagar shall be Key Managerial Persons (KMPs) of the Earth Copia Project SPV and Mr. Akhilesh Kumar Mishra shall be Organizational manager and functional head. Earth Sapphire Court Project i. The Resolution Applicant proposes that the Earth Sapphire Court Project be transferred to the Project SPV in such a manner such that all necessary assets, rights, approval, consent, licenses whether of EIL, Nishtha and/or the Earth Sapphire Court Project be provided to the Project SPV to enable it to revive and construct the said Earth Sapphire Court Project with the intention to safeguard all its stakeholders and most importantly deliver the units to the Allottees and register transfer of the said units in their favour without any legal hindrance without the Resolution Applicant having to assume the excluded liabilities of EIL, Nishtha and/or the Earth Sapphire Court Project specifically in terms of this Resolution Plan. Such may be achieved either through a merger process whereby the Earth Sapphire Court Project and/or Nishtha is ....
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.... EIL. It further proposes to merge Earth TechOne Project along with Neo Multimedia in the relevant Project SPV i.e. Flanking Townships Private Limited, which shall be the subsidiary/associate company of the Resolution Applicant. Mr. Mukul Kumar and Mr. Sachin Kumar Gupta shall be the Key Managerial Persons (KMPs) of the Earth TechOne Project SPV and Mr. Vikas Manhas shall be the organisational manager and functional head. Objection by HDFC Bank 18. It is submitted that the HDFC Bank ('objector') is a secured financial creditor having a claim of Rs. 44,88,712/- against the CD, which has been accepted by the RP. The RA has offered only 4,00,000/- to objector in its resolution plan which has been rejected by the objector. The RA has given no rationale on which the objector has been discriminated as other Financial Creditors are getting 100% of their debt unlike the objector, which is getting 35% only. The objector has rejected the resolution plan submitted by the RA, therefore, it is entitled to claim amount in terms of section 30(2)(b)(ii) of Code, which should not be less than the amount to be paid to such creditors, which it would have been entitled to under section 53(1) of ....
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....nswering respondent by the CoC, the Ministry of Law and Justice, vide notification no. IBBI/2019-20/GN/REG052 had amended the regulation 38 of CIRP Regulations regarding the payment to dissenting financial creditors in priority over the financial creditor who voted in favour of resolution plan. Furthermore, the payment proposed to be made to HDFC by the RA (Rs.4,00,000/-) together with RUD (Rs. 12,56,839/-) which amounts to 16,56,839/-, is more than the amount which would have been payable to it in the event of liquidation. 20. We have perused the objection raised by the HDFC Bank and Reply of the RA to the objection. All the objections raised by the HDFC Bank are satisfactorily replied by the RA in detail including the amount to be paid in the resolution plan and regarding the priority in payment, therefore, it seems no direction is required to be given to RA. Hence, the objection raised by the HDFC stands rejected in the aforesaid facts and circumstances. 21. The summary of the Resolution plan submitted by the Resolution Applicant as per Form H is as follows: #Amount provided over time under the Resolution Plan and includes estimated value of non-cash components. I....
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.... As per clause 2 of Part III(A), Clause 2 of Part III(C), Clause 2 of Part III(D) clause 2,3,4,5,6,7 and 8 of Part IV, Clause D(xv) of Regulations, 2016 Part IV of the Resolution Plan interest of all stakeholder, including Financial Creditors and Operational Creditors, of the Corporate Debtor has been dealt by the resolution plan. Section 30(2)(b) of the IBC, 2016 And Regulation 38(2)(c) of IBBI (Insolvency Process for Corporate Persons) Regulations, 2016 Clause 7 of Part IV of the resolution Plan provides for the payment of the debts of operational creditors. Adequate means for supervising the resolution plan implementation has been provided in Clause O Part IV of the Resolution Plan. Section 30(2)(d) of the IBC, 2016 And Regulation 38(2) of IBBI (Insolvency Process for Corporate Persons) Regulations, 2016 Clause 8 of Part III(A), Clause 10 of Part III(C) clause 11 of Part of III(C), Clause 10 of Part III(W) and clause O of Part IV provides for the management of the affairs of the corporate debtor. The implementation of plan as stated by the Resolution Applicant in the Resolution Plan is 5 Years from the pl....
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....is with a view to implement the Resolution Plan successfully as approved by the CoC. 29. In view of the above, the "Resolution Plan" for Copia, Sapphire and Techone annexed with I.A. No. 05/2020 filed in IB-401(ND)/2017 is hereby approved and the objection raised by the HDFC Bank against the Resolution Plan stands rejected, shall be binding on the corporate debtor and its employees, members, creditors, guarantors, other stakeholders including statutory authorities and the Resolution Applicant. 30. The Resolution Applicant or Monitoring Agency as the case may be is at liberty to approach this authority for seeking appropriate directions for effective implementation of the Resolution Plan. 31. The order of moratorium date 06.06.2018 passed by this adjudicating authority under section 14 of IBC shall cease to have effect from the date of this order. 32. The RP shall forward all records relating to the conduct of the CIRP and the Resolution Plan to the IBBI, so that the Board may record the same on its data base. 33. The approved resolution plan shall become effective from the date of passing of this order. 34. The Resolution Professional shall forthwith send a copy o....