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2024 (9) TMI 1613
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....ainst M/s Global Energy Private Limited. (here in after called 'the Corporate Debtor') under Section 9 of the Code. This Tribunal vide order dated 02.12.2019 initiated CIRP against the Corporate Debtor and one Mr. M.L. Shyamsunder, Insolvency Professional, was appointed as the Interim Resolution Professional. Subsequently, vide order dated 05.02.2020, one Mr. Arun Jain was appointed as the Interim Resolution Professional, replacing Mr. Shyamsunder. The order dated 02.12.2019 was challenged before the Hon'ble National Company Law Appellate Tribunal ('NCLAT") vide Company Appeal (AT) (Insolvency) No. 1415 of 2019. Subsequently, upon the dismissal of the said Appeal, the CIRP of the Corporate Debtor was further challenged before the Hon'ble Supreme Court. During both such proceedings, the CIRP of the Corporate Debtor was halted on account of stay orders passed by the respective forums. The CIRP of the Corporate Debtor was finally resumed upon dismissal of the Civil Appeal of the suspended Director of the Corporate Debtor by the Hon'ble Supreme Court vide order dated 31.03.2022 3. An Interlocutory Application was filed by the Financial Creditor of the Corporate Debto....
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..... Subsequently, in the 5th CoC meeting dated 10.10.2022 the last date for submission of EoI was extended from 17.09.2022 to 17.10.2022 7. Pursuant to the publication of Form-G, the Applicant received EoI from 8 (Eight) Prospective Resolution Applicants (PRAs). The Applicant on 01.11.2022, issued a final list of Eligible PRAs for participating in the Resolution Process of Corporate Debtor. 8. The Applicant released the Information Memorandum (IM) and also released the Request for Resolution Plan (RFRP) on 27.10.2022 to all the eligible PRAs for inviting submission of Resolution Plans. In terms of RFRP, the last date for submission of the Resolution Plan by the PRAs was 27.10.2022 which was subsequently extended to 26.11.2022. 9. In the 7th Committee of Creditors (CoC) meeting held on 18.1.2022, the Applicant apprised the members of CoC that he had received two Resolution Plans from the following PRAs :- i. Harry Dhaul (Promoter Group) ii. Salawat Group 10. In the 9th CoC meeting held on 20.02.2023, the plan submitted by both the PRAs were deliberated in detail. The Applicant invited the PRAs to present their Resolution Plans to the CoC. Both the PRAs ag....
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....ed % of total claim amount No of days 1 Secured Financial Creditors (unrelated)* 18.4464 18.4464 9.2232 50.00% Within 3 years of the of the Date of handover of the management of the CD 2 Unsecured Financial Creditors (Others) 2.4763 Nil Nil Nil NA 3 Operational Creditors (Government dues) 3.4542 3.4542 0.0345 1.00% Within 360 days of the of the Date of handover of the management of the CD 4 Operational Creditors (Other than Employee, Workmen & Govt dues) 208.6045 24.7727 0.2477 1.00% Within 360 days of the of the Date of handover of the management of the CD 5 Employee Dues 5.2235 0.9100 0.1820 20.00% Within 360 days of the of the Date of handover of the management of the CD 6 Workmen Dues NIL NIL NIL NA NA 7 IRPC Estimated Cost as on 31-12- 22: Rs. 0.60 CR Actual unpaid IRP cost shall be paid in priority and estimated Rs. 0.80 CR Within 180 days of the of the effective date TOTAL PLAN VALUE 10.4874 NA The Successful Resolution Applicant prescribes total amount of INR 10,48,74,000 ....
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....y, Governmental Authorities, trade creditors, should not be less than as prescribed under Section 30 payout to them i.e. not less than the amount payable to such Operational Creditors in the event of liquidation of the Corporate Debtor under Section 53 of the Code and the amount that would be have been paid to such Operational Creditors, if the amount to be distributed under the Resolution Plan is distributed in accordance with the order of priority in sub-section 1 of Section 53 which ever is higher. The Operational Creditors is required to be paid in priority over the payments to Financial Creditors. iii. In order to maintain the status of the Corporate Debtor as operational and for running the business of the Corporate Debtor as a going concern, the Resolution Applicant proposes resolution of entire operational debt of the Corporate Debtor and settlement of all Operational Creditors at an aggregate amount out of the funds firstly by making payments as per Section 30 payout to the Operational Creditors and in case of insufficiency of funds, the shortfall is to be met from the Secured Financial Creditors consideration amount. Secondly payment towards the EPFO dues, in cas....
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....itors as per Regulation 38(1) of the CIRP Regulations. All amounts payable under sub-clause ii) above shall be paid by the resolution applicant into a separate account Within 360 days of the of the Date of handover of the management of the CD, all other past dues of the Workmen & Employees of the Corporate Debtor shall stand discharged. VII. Earnest Money Deposit: As per clause F of the Request for Resolution Plan ("RFRP") dated 27th September, 2022 revised on 27th October, 2022, the Resolution Applicant has transferred EMD amount of INR 50,00,000 (Rupees Fifty Lakh Only) in the Bank account of the Corporate Debtor on 07.01.2023. VIII. Performance Security: The Resolution Applicant will be called upon to provide performance security of at least 5% of the total financial Bid in the form of a bank guarantee / Demand draft / Fixed Deposit, unconditional and irrevocable, guaranteeing to pay the commitments within the time specified therein and such performance security shall stand forfeited if the resolution applicant of such plan, after its approval by the Adjudicating Authority, fails to implement or contributes to the failure of implementation of that plan in....
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....oard of Directors, handing over of peaceful possession of assets, removal of all charge/ encumbrance on any of the assets of GEPL in all records, including but not limited to Companies Act, 2013/1956, revenue records including 7/12 or any kind of title documents as provided in Resolution Plan T+ 3 years and 6 months XII. Monitoring and Implementation: During the Interim Period, till all the payments are made, the Monitoring Agency shall constitute of one secured financial CoC member (with veto power), who have majority stake in the Corporate Debtor and have voted in favour of the Resolution Plan and one nominee (without any voting rights) of the Resolution Applicant, so as to be aware of the operations of the company. Provided however the CoC and the Resolution Applicant shall have the right to appoint any firm/ person as a nominee member of the Monitoring Agency at their own respective cost. XIII. Eligibility under section 29A of the Code: The Resolution Applicant is eligible to submit the Resolution Plan under Section 29A and the same is confirmed by the Resolution Applicant in its clause 11(ii) of part V of the Resolution Plan. The Applicant further su....
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....the Resolution Plan provides for the following: a. Payment of CIRP cost as specified under Section 30(2)(a) of the Code; b. Payment of debts of Operational Creditors as specified under Section 30(2)(b) of the Code; c. For the management of the affairs of the Corporate Debtor after approval of the Resolution Plan; and d. The implementation and supervision of the Resolution Plan by the RP and the CoC as specified under Section 30(2)(d) of the Code. 22. It is to be noted that IA 2332 of 2023 was filed by the Regional Provident Fund Commissioner-II, Regional Office, Delhi (Central) seeking direction against the Resolution Professional/Respondent to consider the claim of Rs.1,33,19,135/-. including the principal claim of Rs. 77,67,128/- and damages & interest amounting Rs. 55,52,007/- of the Employees Provident Fund Organization. The said claim was submitted before the approval of the Resolution Plan and the Successful Resolution applicant vide an additional affidavit dated 28.06.2024 has taken upon himself to pay the said claim within 180 days from the handover of the management of Company to the SRA. The relevant portion of the affidavit is repro....
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....ion Plan does not conform to the stated requirements. The legislature, consciously, has not provided any other ground to challenge the commercial wisdom of the individual financial creditors or their collective decision before the Adjudicating Authority. 24. In CoC of Essar Steel India Limited vs. Satish Kumar Gupta and Ors (2020) 8 SCC 531 the Hon'ble Apex Court clearly held that the Adjudicating Authority would not have the power to modify the Resolution Plan which the CoC in their commercial wisdom has approved. In para 42, the Hon'ble Court observed as under: 'Thus, it is clear that the limited judicial review available which can in no circumstances trespass upon a business decision of the majority of the Committee of Creditors, has to be within the four corners of section 30(2) of the Code, in so far as the Adjudicating Authority is concerned and section 32 read with section 61(3) of the Code, insofar as the Appellate Tribunal is concerned, the parameters of such review having been clearly laid down in K. Sashidhar (supra).' 25. In view of the discussions and the law thus settled, we are of the considered view that the instant Resolution Plan meets the requireme....
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.... the stamp duty, taxes, registration charges, etc. for implementation of the approved Resolution Plan is not granted. However, the Resolution Applicant is at liberty to approach the competent authorities for the exemption, if permitted under the law. 31. The Resolution Applicant for renewal of various licenses and effective implementation of the Resolution Plan, shall obtain all necessary approvals under any law for the time being in force, within such period as may be prescribed. However, if any approval of the shareholder is required for extinguishment of existing shares of the Corporate Debtor, allotment of shares to the Resolution Applicant and reduction of share capital of Corporate Debtor under the Companies Act, 2013 or any other law for the time being in force for the implementation of actions under the Resolution Plan, such shareholders' approval shall be deemed to have been given and it shall not be a contravention of that Act or law. The Memorandum of Association (MoA) and Articles of Association (AoA) shall accordingly be amended and filed with the concerned Registrar of Companies (RoC), for information and record. 32. With respect to the application(s) relating t....