TaxTMI 
TaxTMI 
2024 (9) TMI 1422
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.... passed by the Learned Adjudicating Authority (National Company Law Tribunal, NCLT Mumbai Bench, Court - III) by which I.A. No. 124/2024 filed by Sandeep Jayantilal Vadodria and Ors. has been rejected and I.A. No. 5826/2023 filed by the Resolution Professional (`RP') for approval of the Resolution Plan has been allowed. 2. The aforesaid two Orders passed on the same date in I.A. No. 124/2024 and I.A. No. 5826/2023, have been challenged in these Appeals. 3. Brief facts of the case necessary to be noticed for deciding the Appeal are; i. Corporate Insolvency Resolution Process (`CIRP') against the Corporate Debtor, Adico Forge Pvt. Ltd. commenced by the Order dated 23.06.2023 passed on an Application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016, (for short `The IBC' or `The Code') by an Operational Creditor. ii. On 17.07.2023, Interim Resolution Professional (`IRP') made Public Announcement inviting claims. `Form-G' was published in response to which, two Resolution Plans were received one by M/s. Saverni Neutech Pvt. Ltd. (submitted by consortium of three persons.) and another by M/s. Trinity India Forgetech Pvt. Ltd. iii. 13.11.2....
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....licant's case is that the Adjudicating Authority orally directed the RP to consider the Resolution Plan of Applicant M/s. Saverni Neutech Pvt. Ltd. xv. The RP acting on the oral direction convened the Meeting of the CoC on 05.01.2024. xvi. On 05.01.2024, Learned Counsel for the Successful Resolution Applicant (`SRA') made a mention on basis of which the Application I.A.5826/2023 was listed on 05.01.2024, on which date, Adjudicating Authority was informed that CoC Meeting has been called on 05.01.2024 at 06:30 P.M. on the ground that oral direction was issued by Court on 01.01.2024 to consider the new Resolution Plan of the Applicant. xvii. Adjudicating Authority passed an Order 05.01.2024 directed the Resolution Professional not to conduct the CoC Meeting for consideration of any fresh Resolution Plan and the Application was directed to be listed on 10.01.2024. xviii. In view of the Order of the Adjudicating Authority dated 05.01.2024, no Meeting of the CoC was held on 05.01.2024, nor Resolution Plan or Applicant M/s. Saverni Neutech Pvt. Ltd. was considered. xix. Both the Applications I.A.124/2024 and I.A. 5826/2023 were heard by the Ad....
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....cial Creditor but who was not permitted to cast his vote in the Meeting held on 15.12.2023. Appellant was represented by its representative Rakesh Patel, who was not allowed to cast the vote on the ground that he is co-Resolution Applicant and there being conflict of interest. It is submitted that Financial Creditor, the Appellant was entitled to cast his vote on the Resolution Plan. Hence the Order approving the Resolution Plan deserves to be rejected. 7. Learned Counsel for the RP refuting the submissions of the Appellant submits that 15.12.2023 was last date of submitting revised Resolution Plan and the Appellant Sandeep Jayantilal Vadodria failed to submit the revised Resolution Plan within the time allowed. In the Meeting held on 15.12.2023, both the Plans, submitted by Sandeep Jayantilal Vadodria and 2 Ors. as well Plan submitted by M/s. Trinity India Forgetech Pvt. Ltd. were considered deliberated and put to vote. The Resolution Plan submitted by M/s. Trinity India Forgetech Pvt. Ltd. was approved with 92.87% vote and other Plan submitted by M/s. Saverni Neutech Pvt. Ltd. was disapproved with 92.87% vote shares. It is submitted that Resolution Plan having approved on 15.1....
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....n Plans were submitted in the CIRP of the Corporate Debtor, one by M/s. Saverni Neutech Pvt. Ltd., and other by M/s. Trinity India Forgetech Pvt. Ltd. Resolution Plan submitted by M/s. Saverni Neutech Pvt. Ltd. was Plan submitted by Consortium of three Applicants namely; i. Sandeep Jayantilal Vadodria. ii. Vishal Prakashchandra Modha. iii. Rakesh Chaganlal Patel. 11. Plan was submitted by both the Resolution Applicant by 17.11.2023. In the 6th CoC Meeting held on 28.11.2023, and the 7th CoC Meeting held on 02.12.2023 Members of the CoC suggested certain modifications and directed both the Resolution Applicant to submit a revised Resolution Plan. Meeting of the CoC was held on 12.12.2023, where in Item No. 2, the CoC extended the time for submission of Resolution Plan till 13.12.2023 at 5:00 PM. Item No. 2, following was resolved: "ITEM NO : 2 To discuss regarding Resolution Plans to be received from Resolution Applicants vs., M/s. Saverni Neutech & Others and Trinity India Forgetech Pvt. Ltd. Resolution Professional apprised to the members of the CoC that the Prospective Resolution Applicants (PRAs) ask to extend the time for....
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....Legal Manager) 3. Akansh Mittal (Legal Manager) Physically present 2. Prem Trading Company Mr. Rakesh Patel Present through Video conference (for agenda no.1,6,7 and 8) 3. Parulben Rakeshbhai Patel Mr. Rakesh Patel (Spouse of Creditor as Authorised Representative) Present through Video conference (for agenda no.1,6,7 and 8) Note: Mr. Rakesh Patel was present in the meeting for discussion and voting only on agenda no.1,6,7 and 8 and thereafter exited the meeting, since he is participating in the EOI process as co-resolution applicant with M/s. Saverni Neutech." 14. Item No. 3 of the Minutes was "to discuss on the Resolution Plan to be received from Resolution Applicant, namely; M/s. Saverni Neutech Pvt. Ltd. and M/s. Trinity India Forgetech Pvt. Ltd.". In Item No. 2, brief on Resolution Plan of M/s. Saverni Neutech Pvt. Ltd. as well as M/s. Trinity India Forgetech Pvt. Ltd. were noticed total amount of Resolution Plan which was offered by M/s. Saverni Neutech Pvt. Ltd. Rs.19,29,76,000/- whereas total amount of the Plan which was offered by M/s. Trinity India Forgetech Pvt. Ltd. Rs.26,86,00,000/-. In th....
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....solution Plan of M/s. Saverni Neutech Pvt. Ltd. Thereafter, the compliances of the Resolution Plan received from M/s. Saverni Neutech Pvt. Ltd. were discussed and the member of the CoC and RP stated as under : 1. The RP stated that Resolution Plan is received in the name of M/s. Saverni Neutech Pvt. Ltd. instead of the names in which EOI was submitted since the EOI was submitted in the name of Mr. Sandeep Vadodaria, Mr. Rakesh Patel and Vishal Modha as joint applicants. 2. The EMD amount of Rs.5 Crore to be submitted as per the minimum eligibility criteria was submitted late on 22.11.2023. 3. The Resolution Plan do not comply with Sec.30 (2)(a) and 30 (2)(b) of the Code. 4. The source of funds is mentioned as bank finance which indicates they have low financial independence to commit with resolution plan amount offered. 5. Provision with regards to PF dues and gratuity in the resolution plan as per the provisions of the code. 6. Even the time period for payment is 3 months from the effective date which is far more than time period of 15 days offered by Trinity India Forgetech Pvt. Ltd. 7. The plan amount offere....
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....ondly, they have sent Bank detail for refund of the EMD. It was after receipt of the return of the EMD as an afterthought the I.A. No. 124/2024 was filed by Sandeep Jayantilal Vadodria and Ors. On 30.12.2023, in which Application following prayers were made: "a) Your Lordship may be pleased to allow the present application; b) Your Lordship may be pleased to direct the Respondent No. 1 i.e. Resolution Professional of Adico Forge Private Limited and Respondent No. 2 i.e. Committee of Creditors of Adico Forge Private Limited to allow the Applicant to submit the Revised Resolution Plan in accordance with Section 30 of the Insolvency and Bankruptcy Code, 2016; c) Your Lordship may be pleased to direct the Respondent No. 1 i.e. Resolution Professional of Adico Forge Private Limited and Respondent No. 2 i.e. Committee of Creditors of Adico Forge Private Limited to consider the Revised Resolution Plan in accordance with Section 30 of the Insolvency and Bankruptcy Code, 2016 as submitted by the Applicant; d) Pending the hearing of the present application, this Hon'ble Tribunal may be pleased to not approve any application for approval of resolution plan ....
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....P that on an urgent mentioning the IA No.5826/2023 came to be listed on 05.01.2024 before the Adjudicating Authority and the Adjudicating Authority passed an Order on 05.01.2024, which is to the following effect : "I.A. 5826/2023 The above I.A. is listed on today's board by urgent mentioning by the Successful Resolution Applicant. The SRA submits that the CoC meeting has been called today at 3:30 PM on the ground that oral directions were given by this Court on 01.01.2024 to consider a new resolution plan for the purpose of value maximization. It is settled law that a new resolution plan cannot be considered after approval of a resolution plan in contravention of the CIRP Regulations. It appears that there was some confusion during the hearing on 01.01.2024. We direct the Resolution Professional not to conduct the CoC meeting for consideration of any fresh Resolution Plan. List this matter on 10.01.2024." 22. When we look into the Order of the Adjudicating Authority passed on 05.01.2024, it is clear that the Adjudicating Authority itself has recorded that there was some confusion during the hearing on 01.01.2024. The Order dated 01.01.2024 has also been brought on recor....