20th October, 2023 Approval of Resolution Plan - C & C Towers Limited [IA No. 331 of 2021 in CP (IB) No.105-Chd-Hry-2019] (564.74 KB)
Page1of75 THE NATIONAL COMPANY LAW TRIBUNAL CHANDIGARH BENCH, CHANDIGARH (Exercising powers of Adjudicating Authority under the Insolvency and Bankruptcy Code, 2016) IA No. 331 of 2021 In CP (IB) No.105/Chd/Hry/2019 (Admitted) Under Section 30 (6) and 31 of the InsolvencyandBankruptcyCode,2016 read with Regulation 39(4) of IBBI Regulations, 2016 In the matter of: Mrs. Kusum Chadha Ahuja & Anr. .…Petitioner-Financial Creditors Versus C & C Towers Limited …Respondent-Corporate Debtor And in the matter of IA No.331/2021:- Mr. Gaurav Khurana, having his registered office at KPMG, Building No. 10, 8th Floor, DLF Cyber City, Gurugram 122022, Haryana, New Delhi …Applicant vs. Mahakram Developers Private Limited having its registered office at 910, Ansal Bhawan, New Delhi-110001 …Respondent No. 1 Mr. Gurjeet Singh Johar having his registered office at 11, Club Drive, M.G. Road, Ghitorni, New Delhi …Respondent No. 2 IA No.331 of 2021 In (Admitted)
Page2of75 Order delivered on : 19.10.2023 Coram:HON’BLE SHRI HARNAM SINGH THAKUR, MEMBER (JUDICIAL) HON’BLE SHRI SUBRATA KUMAR DASH, MEMBER (TECHNICAL) Present:- For the Applicant: : Mr. Aalok Jaggawith Mr. APS Madaan and Mr. Arora Vishwas Kumar, Advocates for the SRA. PER: SUBRATA KUMAR DASH, MEMBER (TECHNICAL) ORDER IA No. 331/2021 The present application has been filed by Mr. Gaurav Khurana, Resolution Professional of C&C Towers Limited under Section 30(6) and Section 31(1)oftheInsolvencyandBankruptcyCode,2016(‘theCode’), readwithRegulation39(4)oftheInsolvencyandBankruptcyBoardofIndia (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 seekingapprovaloftheresolutionplaninrespectoftheC&CTowersLimited (“the corporate debtor”). The applicant-Resolution Professional filed the presentapplicationon11.06.2021forapprovaloftheResolutionPlan,which wasapprovedwitha100%votingshareoftheCommitteeofCreditors(COC) in its 17th meeting, which was held on 27thApril,2021. 2. TheCompanyPetitionCP(IB)No.105/Chd/Hry/2019wasfiledbythe Operationalcreditor-MRS.KUSSUMCHADHAAHUJA&ANR,againstthe corporate debtor, which was admitted into the Corporate Insolvency Resolution Process (‘CIRP’) vide order dated 10.10.2019. IA No.331 of 2021 In (Admitted)
Page3of75 3. Mr. Amit Gupta was appointed as an Insolvency Resolution Professional (‘IRP’). A Public Announcement in Form A, as mandated by Regulation6oftheCIRPRegulations,wasmadebytheIRPon12.10.2019 inviting claims from the creditors of the Corporate Debtor, which was publishedin‘FinancialExpress’DelhiEditioninEnglishand‘Jansatta’Delhi EditioninHindi,‘FinancialExpress’ChandigarhEditioninEnglishand‘Desh Sewak’ Punjab EditioninPunjabiandalsouploadedonthewebsiteofthe Insolvency & Bankruptcy Board of India (hereinafter, “IBBI”). Pursuant to Public Announcement, the IRPreceivedvariousclaims.Afterverifyingand collating the claims and determining the financial position of Corporate Debtor, the IRP constituted the Committee of Creditors as per Section 21(2). 4. TheIRPfiledtheC.A.No.1168/2019beforethisAdjudicatingAuthority under Section 21 (6A) of the Code for appointment of the Authorized Representative(hereinafter,“AR”)forboththeclassesofrealestateallottees and Deposit Holders of the Corporate Debtor. This Adjudicating Authority videorderdated09.12.2019,waspleasedtoallowtheC.A.No.1168/2019 filed by the IRP and appoint Mr. Yogesh Kumar Gupta, Insolvency Professional as theARfortheclassesofrealestateallotteesandDeposit holders. 5. The IRP convened the first meeting of the CoC on 07.11.2019, wherein the CoC decided to replace the IRP appointed by Hon’ble AdjudicatingAuthorityandappointtheApplicant,Mr.GauravKhuranahaving Registration No. IBBI/IPA-001/IP-P01282/2018-2019/12001 as the Resolution Professional for the Corporate Debtor. Vide order dated IA No.331 of 2021 In (Admitted)
Page4of75 02.12.2019andtheApplicantwasappointedastheResolutionProfessional of the Corporate Debtor. 6. The shares of the members of CoC is as under: Name of the financial creditor Amount claimed (INR) Amount admitted (INR) Percentage of voting share (%) Voting for Resolution Plan (Voted for/Dissented /Abstained) Edelweiss Asset Reconstruction Company Limited 2,899,491,749 2,887,713,988 58.94% Voted For Punjab & Sind Bank 445,820,620 441,836,174 9.02% Voted For Allottees 573,733,682 427,721,861 8.73% Dissented Deposit Holders (Investors) 1,225,716,866 1,142,355,427 23.32% Dissented 7. Thefairvalueandtheliquidationvalueofthecorporatedebtorisas under:- Sr. No. Name of Valuer FairValue(INR) Liquidation Value (INR) 1. Puneet Tyagi, Dharam Pal Bhatia, Gunjan Agarwal 1,074,397,259 5,16,614 2. GAA Advisory LLP 1,313,500,000 NIL 8. InpursuancetoadirectionofthisBenchinthecourseofthepresent proceedings,ashortnotewasfiledvideDiaryNo.00129/6dated28.08.2023 in the related IA No. 179/2022. It clarified that the fair and theliquidation IA No.331 of 2021 In (Admitted)
Page5of75 value of the corporate debtor was provided by the valuers envisagingthe scenarioofthecorporatedebtorfirstlyasanon-goingconcernandthenasa goingconcernduetotheterminationoftheconcessionagreement.Boththe valuations as submitted in the tabular format by theapplicantisextracted below: Category of Assets Fair value Average Fair Value Liquidation Value as a Going Concern Average Liquidati on Value Liquidation Value due to termination of Concession Agreement Average Liquidation Value Valuer I Valuer II Valuer I Valuer II 75.22 Valuer I Valuer II 0.03 PPE, CWIP & Intangibl e Assets 130.76 107.44 119.40 78.37 72.06 Nil Nil Financial Assets 0.59 Nil 0.05 Land & Building Nil Nil Nil Grand Total 131.35 107.44 119.40 78.37 72.06 75.22 Nil 0.05 0.03 8.1 Inthecourseofthepresentproceedingstheresolutionprofessional wasaskedtoclarifyonthevaluationaspectas thecorporatedebtoris treated as a going concern subsequent to the withdrawal of the terminationnoticebyGMADA.TheRPhasclarifiedthatintheResolution Plan,theCorporateDebtorisnottreatedasagoingconcernunderlegal advice.Thissubmission,however,isnottenableastheResolutionPlanis premised on the factthattheCorporateDebtorisagoingconcernand IA No.331 of 2021 In (Admitted)
Page6of75 therefore,thisBenchdirectstheliquidationvaluetobetakenatRs.75.22 crores treating the Corporate Debtor as a ‘going concern’. 8.2 Further, with regard to payment to creditors, the short written submissionfiledvidee-fillingNo.040115006992021dated17.10.2023,it is clarifiedthat,“Withoutprejudicetotheabove,itisamatterofrecord thatthetotaladmittedsecuredfinancialdebtduetoinstitutionalfinancial creditorfromtheCorporateDebtoraggregatestoINR332.95crore(page 475 @ page 477 clause 1 of revised Form H filed with affidavitdated 31.05.2023 filed vide diary no 00699/9 dated 02.06.2023) and thus whether the liquidation value is taken at INR 75.22 crore (as a going concern)oratINR0.03crore(notasagoingconcernduetotermination oftheConcessionAgreement),thesamedoesnotmakeanydifferencein sofartheliquidationvaluepayabletothedissentingunsecuredfinancial creditorsinclassintermsofSection30(2)oftheCodeisconcernedas for them the liquidationvaluepayableremainasNILonaccountofthe factthatineitherofthescenarios,theliquidationvalueisnotsufficientto satisfytheclaimsofsecuredfinancialcreditorsoftheCorporateDebtorin terms of the waterfall mechanism under Section 53 of the Code”. 9. This Adjudicating Authority vide its order dated 21.02.2023 in IA 1055/2022toIA1059/2022andIA1243/2022filedbycertainclaimantsfor acceptance of belated claims filed by them beyond timelines prescribed under the Code directed as below: “…26.Inviewoftheaforementioneddiscussion,wedisposeofthese Applications with the following directions: (1)11.1The Resolution Professional shall provide all details of allottees/Retailinvestorsalongwiththeirclaimsasreflectedinthe record of the Corporate Debtor, who had not filed their claims, IA No.331 of 2021 In (Admitted)
Page7of75 includingtheApplicantstotheResolutionApplicantwithinaperiod of one month from today. (2)TheResolutionApplicantshallprepareanaddendumonthebasis ofinformationassubmittedbyResolutionProfessionalandplace the same before the CoC within a further period of one month. (3)The CoC shall consider the addendum in its meeting, and the decision of the CoC on the Information Memorandum and addendum, along with revised Form H, be placed before the Adjudicating Authority. The CoC shall take the decision in its meetingwithinaperiodofonemonthfromthedateofsubmission of the addendum by the Resolution Applicant. (4)ThesameaddendumbeplacedonrecordbeforethisAdjudicating Authority to be tagged to the Resolution Plan filed in IA No. 331/2021, pending for approval as of date. 27.Intheresult,theaboveapplicationsi.e.,IANos.1055/22,1056/22, 1057/22, 1058/22, 1059/22 & 1243/22, areallowedanddisposedof accordingly.” 9.1 In compliancewiththeaboveorderdated21st February2023, the Resolution Professional vide its e-mail dated 16th March 2023, providedthedetailsofallrealestateallottees/retailInvestorsalongwith details oftheirclaimasreflectedintherecordoftheCorporateDebtor, who had not filed theirclaims,includingtheApplicantsintheaforesaid Applications to MDPL. 9.2 In pursuance to the above, MDPL prepared and submitted addendumdated27th March2023totheCoCapprovedResolutionPlan dated 20th April, 2021 along with Revised Resolution Plan Payment Schedule dated 27th March 2023, with the RP vide email dated 27th March, 2023. 9.3 MDPLhasallocatedadditionalamountofINR3.86Croresfor Allottees and INR 1.60 Crores towards Deposit Holders toabsorb/deal IA No.331 of 2021 In (Admitted)
Page8of75 withadditionalpotentialclaimsfromallotteesanddepositholdersasper addendum dated 27thMarch, 2023. 9.4 The addendum was placed before CoC in 24th CoC meeting andthesamewasapprovedwith76.69%votingshare.Afterapprovalof the addendum,RPvidecomplianceaffidavitdated25th April,2023,has filedtheaddendumwiththisHon’bleAdjudicatingAuthoritytobetagged along with Resolution Plan filed in IA No. 331/2021. 9.5 OnaccountofthedelayinthecompletionoftheDBOTproject bytheCorporateDebtor,somedisputesarosebetweenGMADAandthe CorporateDebtor.GMADAissuedaTerminationNoticetotheCorporate Debtor on 04.04.2016. The Corporate Debtor vide letter/representation dated 03.05.2016 responded totheTerminationNoticeofGMADAlater the Corporate Debtor vide letter dated 28.12.2016 issued a Notice for Dispute under Article27oftheConcessionAgreementrequestingfora meeting to amicably sort out the differences. Vide the said letter the CorporateDebtoralsoinvokedarbitrationprovisionintermsofArticle27 of the Concession Agreement. GMADA also invoked the Performance Security by way of Bank Guarantees of INR3.90croresandINR8.00 crores furnished by the Corporate Debtor. The Corporate Debtor thereafterfiledanapplicationforinterimmeasuresunderSection9ofthe Arbitration & Conciliation Act, 1996 before the District Court, Mohali seekingstayonenforcementoftheTerminationNoticedated04.04.2016. The said application was dismissed by the Additional District Judge, Mohali vide order dated 10.05.2017. IA No.331 of 2021 In (Admitted)
Page9of75 9.6 The Corporate Debtor thereafter nominated its arbitrator and filedapetitionunderSection11oftheArbitration&ConciliationAct,1996 before the Hon’ble Punjab & Haryana High Court for appointment of arbitratoronbehalfofGMADA.TheHon’bleHighCourtvideorderdated 18.08.2017,withconsentofGMADA,appointedanarbitratoronbehalfof GMADA with direction that the two arbitrators (one appointed by CorporateDebtor,andtheotherbyGMADA),shallappointthePresiding Arbitrator and disposed of the said petition. The Arbitral Tribunal was constitutedandheldtwohearings.TheCorporateDebtor,however,vide its letter dated 29.08.2018 informed the Arbitral Tribunal that both the CorporateDebtorandGMADAhaveagreedtosettletheirdisputewithout going into the Arbitral proceedings. 10. Itisstatedthat GMADAhadfileditsclaimasOperationalcreditorand same was verified and collated for INR 8,56,930,201/- by the Resolution Professional. Further, it is submitted that the aggregate admitted claim of operationalcreditorsofcorporatedebtorbeingmorethan10%oftotaldebt, GMADA was madetherepresentativeofclassofoperationalcreditorsand was given right to the participate in the CoC meetings of the corporate debtor. 11. TheApplicantSubmitsthatatotalof25CoCmeetingshavebeenheld during the CIRP period. The gist of the discussions is as follows:- 1. Meetings of CoC; Particulars Date of CoC Meeting Main Agenda of discussion Important decisions ratified IA No.331 of 2021 In (Admitted)
Page10of75 1st CoC Meeting 7th November, 2019 • Constitution of CoC and appointment of Authorised Representative - • Actions takenbyIRPas per IBC,2016- ● Ratification of remuneration to be paid to IRP and expenses incurred upto the 1st CoC meeting. ● Ratification of appointment of Corporate Professionals such as Advisors & Advocates for providing back office support and infrastructure to IRP- ● Confirmation and approving of the appointmentofAmit Gupta or any other Insolvency professional as RP ● Authorise RP to hold future CoC meetings at shorter notice- .2nd CoC Meeting 14th January, 2020 • Handover from IRP- • ExpressionofInterest (“EoI”) – • Litigations- • Update on Site Visit • Related Party Transaction- • Proposed Fees of RP • ApprovalofFormG ( Invitation for EOI)- • Approval to raise Interim Finance for CIRP • Appointment of Legal Advisor to RP- . • Appointment of Registered Valuer- • Appointment of Transaction Auditor 3rd CoC Meeting 31st January, 2020 • Publication of EOI • Investor Update • Status of Critical Information • Related Party Transaction • Cost to Complete Study • Extension of EOI Submission date • Ratification of fee payable for development of website of Corporate Debtor 4thCoC Meeting 6th March, 2020 • Update on EOI • Appointment of Advisors- • Continuation of service of ex-employee on retainership • Status of litigation matters • ApprovalofRequest for Resolution Plan (RFRP)andEvaluation Matrix • Approve the extension of CIRP period for further period of 90 days • Approveadditional InterimFinanceofINR 47.75 Lacs for CIRP Period IA No.331 of 2021 In (Admitted)
Page11of75 • Approvethecostof Virtual Data Room • Approve Related Party Transaction 5thCoC Meeting 26thMay, 2020 • Update on Resolution • Update on CIRP- • Discussion on TA Report • Status of Critical Information • Approve appointment of consultant for compliance ofSection 29A of IBC 6thCoC Meeting 18th June, 2020 • Update on Resolution • Update on CIRP • Revsised Fee to IPE supporting RP ● Approve extension of last date for submission of Resolution Plan • Approve fees for additional scope of work in Transaction Audit •Approveexclusionof period from 25th March, 2020 till 30th June, 2020 from total CIR Period of C & C Towers Limited 7thCoC Meeting 17th August, 2020 • Update on Resolution • Update on CIRP • Ratification of ExtensionofLastdate for Submission of Resolution Plan • ApprovalofInterim Finance 8thCoC Meeting 16th September, 2020 • ReceiptofResolution Plan-• RepublishForm G to invite new EoI- • Other Matters of Discussion- • Approve Related Party Transaction- • ApprovalofFormG (Invitation for EOI)- • ApprovalofRequest for Resolution Plan (RFRP)andEvaluation Matrix (EM)- 9thCoC Meeting 4th November, 2020 • ReceiptofResolution Plan- • Valuation Report received by Registered valuers- • Update on CIRP-. • Discussion on Transaction Audit Report- • Approveextension of CIRP beyond 12th November, 2020 from the Hon’ble NCLT to evaluate two resolution plans received by the RP • Extension of last dateforSubmissionof Resolution Plan by Resolution Applicant till 30th October, 2020 1800 Hours- 10th CoC Meeting 13th November, 2020 • Discussion on Resolution Plan- • Update on CIRP- • Valuation Report receivedfromRegistered Valuers- IA No.331 of 2021 In (Admitted)
Page12of75 • Project Insurance- 11th CoC Meeting 7th December, 2020 • Resolution Plan received from MDPL • Update on CIRP- • Addendum to Transaction Audit Report- 12th CoC Meeting 1st January, 2021 • Improved Resolution Plan received from MDPL- • Summary of CIRP Cost- • Update on CIRP- • Approve shorter notice period sent for convening 12th CoC meeting of C&C Towers Limited- • Approve extensionofCIRPby6 weeks beyond 330 days i.e. beyond 11th January, 2021.- 13th CoC Meeting 8th February, 2021 • Improved ResolutionPlanreceived from MDPL on 3rd February, 2021- • Update on CIRP 14th CoC Meeting 22nd February, 2021 • Update on CIRP- • Approve the extension of CIRP beyond22ndFebruary, 2021- 15th CoC Meeting 19th March, 2021 • Extension of CIRP beyond 11th January, 2021- • Improved ResolutionPlanreceived from MDPL on 24th February, 2021- 16th CoC Meeting 30th March, 2021 • Improved ResolutionPlanreceived from MDPL on 24th February, 2021 and discussion with MDPL- • Summary of CIRP Cost- • Approval of shorter notice period sent for convening 15th CoC- 17th CoC Meeting 27thApril, 2021 • Improved ResolutionPlanreceived fromMDPLon20thApril, 2021- • Approval of Resolution Plan submitted by MDPL- • Resolution for Invocation & Forfeiture EMD or Performance Bank Guarantee submitted by MDPL- 18th CoC Meeting 17thMay, 2021 • Update on CIRP- • Approval to seek extension of CIRP beyond 22nd March, 2021 19th CoC Meeting 24th August,2021 • Applications pending with Hon’ble NCLT • Approval of Interim Finance- IA No.331 of 2021 In (Admitted)
Page13of75 20th CoC Meeting 6thApril,2022 · Applications pending with Hon’ble NCLT, Objection applications and Writ PetitionfiledbyClassof Creditors with Hon’ble NCLT, Chandigarh and Hon’ble High Court of Delhi, application filed against Ex-Parte Orders passed by RERA Chandigarh 21st CoC Meeting 27thApril,2022 · Approval of Interim Finance- 22nd CoC Meeting 12thJuly, 2022 · Applications pending with Hon’ble NCLT Chandigarh, Objection applications andWritPetitionfiledby Class of Creditors with Hon’ble NCLT, Chandigarh and Hon’ble High Court of Delhi, application filed against Ex-Parte Orders passed by RERA Chandigarh • Approval for replacementofGaurav KhuranaasResolution ProfessionalwithAnuj Jain as Resolution Professional- · Approval on continuation of services of Yogesh Kumar Gupta as Authorised Representative of the Class of Creditors- 23rd CoC Meeting 29th November, 2022 • Applications pending with Hon’ble NCLT and other Forums- • Claims received after 31st May, 2021 i.e. date of submission of Resolution Plan- · Approval for acceptance of claim submitted by Balbir Singh Bhangu (allottee)- 24th CoC Meeting 31st March, 2023 • Project Insurance- • Applications pending with Hon’ble NCLT and other Forums- Approvalofaddendum to CoC approved Resolution Plan dated 20th April, 2021 in terms of order dated 21st February, 2023 passed by Hon’ble NCLT Chandigarh Approval of Interim Finance- 25th CoC Meeting 31st March, 2023 • Belatedclaimsand claims not filed by the Class of Creditors- • Project Insurance-. ·Ratification of shorter notice period sent for convening 25th CoC meeting- · IA No.331 of 2021 In (Admitted)
Page14of75 12. Inthe22ndMeetingofCoC,convenedon12thJuly2022,theagenda for the replacement of Mr. Gaurav Khurana, Erstwhile Resolution Professional with Mr. Anuj Jain having IP Registration no. IBBI/IPA-001/IP-P00142/2017-18/10306 as Resolution Professional was proposedandputforthforE-votingbytheCoCandthesameapprovedthe agenda with 100% voting share. Subsequently, the application for replacement of RP was filed before thisBench,whichapprovedthesame vide order dated 6th September 2022 appointing of Mr. Anuj Jain as Resolution Professional of C & C Towers Limited. 13. ItissubmittedthattheRPfiledIANo.275of2020seekingstatutory extensionofCIRPperiodbyninetydaysundersub-section(2)ofSection12 of theCodealongwithexclusionoftimeperiodlostduetolockdownsand Covid restrictions in terms of Regulation 40C of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (“CIRP Regulations”) and this Adjudicating Authorityvideorderdated10August2020allowedIANo.275of2020and thereby extending the CIRP of Corporate Debtor till 12 November 2020. Further,theRPfiledIANo.801of2020seekinganextensionofsixtydays andthisAdjudicatingAuthorityvideorderdated11December2020allowed IANo.801of2020andthereby,extendedtheCIRPperiodof330daystill11 January 2021. However, IA No.32/2021 and IA No 166/2021 for further exclusionandextensionwerefiledseekinganextensionofaminimumofsix weeks or any further period beyond the totalCIRPperiodof330daysfor completionoftheCorporateInsolvencyResolutionProcessofthecorporate debtor.InIANo.166/2021,theResolutionProfessionalsoughtanextension IA No.331 of 2021 In (Admitted)
Page15of75 of a minimum of four weeks beyond 22.02.2021 as prayed for in IA No. 32/2021oranyfurtherperiodbeyondthetotalCIRPperiodof330daysfor completion of Corporate Insolvency Resolution Process of the corporate debtor.Nowanextensionof72daysissoughtinthepresentIAwhichtakes theperiodupto30.05.2021.Theextensionsprayedforintheseapplications are approved in the interest of justicetherebyextendingtheCIRPperiod upto 30.05.2022 . We note that the present application was e-filed on 31.05.2021. 14. It is submitted that the CoC, in its 2nd and 8th meetings held on 14.01.2020and16.09.2020,discussedandapprovedthepublicationofForm G inviting Expression of Interest along with the Eligibility Criteria for the ProspectiveResolutionApplicants.ItwasinformedbytheIRPthatinvitation ofExpressionofInterestinFormGunderRegulation36AofTheInsolvency andBankruptcyBoardofIndia(InsolvencyResolutionProcessforCorporate Persons)Regulations,2016, wasneeded tobepublishedonorbeforethe 75th day from the CIRP initiation dateandaccordingly,30days’timewas proposedtobegiventotheeligibleprospectiveresolutionapplicant.Further, as perSection 25(2)(h),theIRP invitedProspectiveResolutionApplicants who fulfilled such criteria as may be approved by the CoC to submit a resolution plan. 14.1 InthethirdmeetingoftheCoCheldon31.01.2020,themembersof theCoCdecidedtoextendthetimelineforsubmissionofEoIbyPRA(s)from 04.02.2020 till 28.02.2020 to attract more investors for resolution of the Corporate Debtor. The public notice for extension of theEOItimelinewas IA No.331 of 2021 In (Admitted)
Page16of75 duly published in the newspapers namely Business Standard, English (All India Edition), Punjab Tribune (Punjab Edition) and Jagmarg (Haryana Edition) by the Applicant on 04.02.2020. 14.2 In terms of Section 29 of the Code and Regulation36oftheCIRP Regulations,theApplicantpreparedandissuedanInformationMemorandum (hereinafter “IM”) of the Corporate Debtor to the member of the CoC on 09.03.2020 subject to furnishing of non-disclosure undertaking. 14.3 The draft Request for Resolution Plan (hereinafter, “RFRP”) and Evaluation Matrix prepared by the Applicant was presented before the members of theCoC.SincenoobjectionswerereceivedunderRegulation 36A(11)ofCIRPRegulations,theApplicantissuedthefinallistofthePRAs on 15.04.2020. 14.4 In the fourth meeting of CoC held on 06.03.2020, the Applicant apprisedthemembersoftheCoCthatbythelastdateofsubmissionofEoI i.e.28.02.2020,theApplicantreceivedEoIfromthefollowing:1.GlobeCivil Projects Private Limited 2. Kundan Care Products Limited 3. International TractorsLimited4.N.S.Software5.AlchemistARCalongwithSrishtiDhir6. SurakshaARC7.ShivaConsultantsalongwithMadhavDhir8.PrudentARC 9. ART Special Situations Finance (India) Limited 10.JFCFinance(India) Limited. 14.5 Despiterepeatedextensions,theResolutionPlanfromonlyoneofthe PRAs namely Ms.SrishtiDhir&AlchemistAssetReconstructionCompany Limited, was received on 20.08.2020. The Applicant shared theresolution planreceivedwiththemembersoftheCoC.Uponexaminationofthesaid IA No.331 of 2021 In (Admitted)
Page17of75 resolutionplan,theApplicantsharedhisobservationswiththemembersof the CoC in the Eightth CoC meeting dated 16.09.2020. 14.6 ThemembersoftheCoCinthemeetingheldon16.09.2020decided torestarttheEoIprocessafreshbyrevisingtheeligiblecriteriaofminimum tangiblenetworthofINR25CroreforBodyCorporate/Individuals/Individual andINR50CroreforFinancialInstitutions/PEFund/AssetReconstruction Company/ Non-Banking Finance Corporation. 14.7 The CoC finalized and approved the RFRP dated 20.09.2020 and EvaluationMatrixdated20.09.2020with100%votingshareviae-votingheld from18.09.2020to20.09.2020.TheApplicantreceivedresolutionplansfrom onlytwoPRAsnamelyMDPLandMr.HarshaVardhanReddy(hereinafter, ‘Mr. Reddy’) on 30.10.2020. meeting held on 04.11.2020, the CoC at the requestofMr.Reddyextendedthetimeforsubmissionofrefundableearnest money deposit (‘EMD’) of Rs.1,00,00,000/- (Rupees One CroreOnly)with theresolutionplanintermsoftheRFRPby09.11.2020.HoweversinceMr. ReddyfailedtosubmittheEMD,theresolutionplansubmittedbyMr.Reddy was considered as deficient and was not evaluated further. 14.8 In the 14th CoC meeting, Joint meeting was convened withMDPL, legaladvisorofRPandRPfordiscussionontheobservationsoftheCOC. Subsequently,Improved Resolution Plan received from MDPL on 24th February, 2021 14.9 Subsequently, in the 15th CoC meeting, MDPL mentioned that GMADA issued a termination notice on 4th April, 2016 on concession agreementdated15thApril,2009forcancellationofconcessionagreement IA No.331 of 2021 In (Admitted)
Page18of75 andMDPLcannotproceedwithsuccessfulimplementationoftheplanuntil theconcessionagreementisreinstatedandterminationnoticeiswithdrawn. TherepresentativeofGMADAacknowledgedthecriticalityofthematterand requested CoC to allow him time to discuss the matter internally with the officialsofGMADAandseekclarityonpossibilityofwithdrawalofNoticeof Terminationdated4th April,2016oftheConcessionAgreementdated15th April,2009 issued by GMADA. 14.10 Inthe16thCoCmeeting,Regardingissuanceofnoticeoftermination on4th April2016,therepresentativefromGMADAclarifiedthatthenoticeof termination issued earlier was only to show cause and thus not letter of termination.NofurtherprocesswasinitiatedbyGMADAsuchastermination ofconcessionagreement,takingphysicalpossessionofthepropertyorany otheractionfromGMADAconcludedthatterminationwasneverinitiatedand sincetherewasnoactionfromGMADAonthetermination.Itwasdiscussed inthemeetingthatnecessarymodificationsbemadeintheresolutionplan. MDPL submitted that basis the clarification provided by GMADA, theywill discuss the matter internally and discuss the key observations on the resolution plan. 15. The Applicant vide email dated 14.05.2021 apprised MDPL about declaration of the MDPLbeingtheSuccessfulResolutionApplicantforthe Corporate Debtor and also issued the Letter ofIntent(hereinafter,“LoI)to MDPL and requested MDPL to submit Performance Bank Guarantee of Rs.1,00,00,000/-(RupeesOneCroreOnly)infavourofthedesignatedlender viz Edelweiss Asset Reconstruction Company Limited for the CoC as performance security. IA No.331 of 2021 In (Admitted)
Page19of75 15.1 The Successful Resolution Applicant/ MDPL in Clause 9.1.1 and Clause 9.1.2 (Upfront Equity Infusion and Utilisation of Upfront Equity Amount) of Part I of the Resolution PlanhasstatedthatMDPLintendsto make available up to INR 4,54,00,000/- (Rupees Four Crores Fifty Four Lakhs Only.), as Upfront Equity Infusion, within 90 days from the Implementation Date (defined under Schedule 1), for payment of CIRP Costs, Upfront payment to the financial creditors (Banking Institutions), payment toOperationalCreditors(EmployeesandWorkmen)andpayment toOperationalCreditors(StatutoryDuesandOthers).Videthesameemail dated14.05.2021,MDPLwasrequestedtofurnishthePerformanceSecurity of Rs. 1.00 crore in favour of EARC which was submitted by MDPL vide Demand Draft No.208015 dated 27.05.2021. 16. The Resolution Professional appointed Grant Thornton to conduct duediligenceunderSection29AofIBCandonthebasis ofitsreport,MDPL wasfoundeligibleunderSection29AofIBC.Theresolutionprofessionalhas filedareportoncomplianceofSection29AwiththemembersofCoCon23rd April, 2021 and the same hasbeenannexedaspartoftheapplicationfor approval of resolution plan under Section 30 read with Section 31 of the code.Anaffidavitprovidingconfirmationonduediligenceconductedbythe RP with respect toclaimundersection29AoftheCodeoftheSuccessful Resolution Applicant is mentioned at point IX of the Affidavit filed by the Resolution Professional vide diary number 00699/5 dated 01.08.2022. IA No.331 of 2021 In (Admitted)
Page20of75 17. The Applicant has submitted the details of various compliances as envisagedbytheCodeandtheCIRPRegulations,whichaResolutionPlan is required to adhere to, as follows: I. Requirements of Section 30 (1) and (2) of the Code are as under:- Provisions under Section 30(1) and (2) of the Code Compliance under Resolution Plan Section 30(1) A resolution applicant may submit a resolution plan along with an affidavit stating thatheiseligibleunder section 29Atotheresolutionprofessionalpreparedon the basis of the information memorandum. Part III – Clause 17 – Section 29A compliance (Page 74 of Resolution Plan Compilation) (29A Affidavit as submitted by Resolution Applicant is at page 119 of Resolution Plan Compilation) Section 30(2) (a) provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the payment of other debts oftheCorporate Debtor; Part I – Clause 9.1.3 – Estimated CIRP cost (Page 31 of Resolution Plan Compilation) (b)providesforthepaymentofthedebtsofoperational creditors in such manner as may be specified by the Board which shall not be less than: (i)theamounttobepaidtosuchcreditorsintheeventof a liquidation of the corporate debtor under section 53; or (ii) the amount that would have been paid to such creditors, if the amount to be distributed under the resolutionplanhadbeendistributedundertheresolution planhadbeendistributedinaccordancewiththeorderof priority in sub-section (1) of section 53; Whichever is higher, and provides for the payment of the debts of financial creditors,whodonotvoteinfavouroftheresolutionplan, in such a manner as may be specified by the board, whichshallnotbelessthantheamounttobepaidtosuch creditorsinaccordancewiththesub-section(1)ofsection 53 in the event of a liquidation of the corporate debtor. PartI–Clause9.1.5(f),(g) and (h) (Page 32 - 33 of the Resolution Plan Compilation) Part I - Clause 9.1.5(a) and (c) (Page 31 of the Resolution Plan Compilation) IA No.331 of 2021 In (Admitted)
Page21of75 (c) provides for the management of the affairs of the corporate debtor after approval of the resolution plan; PartII-Managementofthe CorporateDebtor(Page57 of the Resolution Plan Compilation) (d)theimplementationandsupervisionoftheresolution plan; Part II - Management of the Corporate Debtor, Stepwise Implementation of the resolution plan (Page 57 and 59 of the Resolution Plan Compilation) (e)doesnotcontraveneanyoftheprovisionsofthelawfor the time being in force; Page4ofResolutionPlan Compilation (f) Conforms to such other requirements as may be specified by the Board. Page 2 to 4 of Resolution Plan Compilation II. RequirementsofRegulation37(1)ofInsolvencyandBankruptcy BoardofIndia(InsolvencyResolutionProcessforCorporatePersons) Regulations, 2016 is as under: Regulation 37(1) of Insolvency and Bankruptcy BoardofIndia(InsolvencyResolutionProcessfor Corporate Persons) Regulations, 2016 Compliance under Resolution Plan (a)transferofallorpartoftheassetsofthecorporate debt to one or more persons; NA (b)saleofallorpartoftheassetswhethersubject to any security interest or not; NA (ba)RestructuringoftheCorporateDebtor,bytheway of merger, amalgamation and demerger. Clause14.1page53ofthe Resolution Plan Compilation (c) the substantial acquisition of shares of the corporatedebtor,orthemergerorconsolidationofthe corporate debtor with one or more persons; Clause 3 page 56 of the Resolution Plan Compilation (ca) cancellation or delisting of any shares of the corporate debtor, if Applicable Clause 3.1 and 3.4 page 56 of the Resolution Plan Compilation (d) satisfaction or modification of any security interest; Clause 11.6.2 page 50 of the Resolution Plan Compilation IA No.331 of 2021 In (Admitted)
Page22of75 (e)curingorwaivingofanybreachofthetermsofany debt due from the corporate debtor; Clause11.6.3page50ofthe Resolution Plan Compilation (f) reduction in the amount payable to the creditors; 9.1summaryproposal–page 30 of the Resolution Plan Compilation (g)extensionofamaturitydateorachangeininterest rateorothertermsofadebtduefromthecorporate debtor; NA (h)amendmentoftheconstitutionaldocumentsofthe corporate debtor Clause 3.2, page 56 of the Resolution Plan Compilation (i) issuanceofsecuritiesofthecorporatedebtor,for cash, property, securities,orexchangeforclaimsor interests or other appropriate purpose NA (j)changeinportfolioofgoodsorservicesproduced or rendered by the corporate debtor NA (k)changeintechnologyusedbythecorporatedebtor and NA (l)obtainingnecessaryapprovalsfromtheCentraland State Governments and other authorities; Clause11and12page38 to 52 of the Resolution Plan Compilation III. Requirements of Regulations 38 (1), (2) (3) of Insolvency and BankruptcyBoardofIndia (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 is as under:- IA No.331 of 2021 In (Admitted) Regulation 38(1) of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 Regulation 38(1)(a)- Theamountduetotheoperationalcreditorsundera resolutionplanshallbegivenpriorityinpaymentover financial creditors Part II- Stepwise Implementation of the resolution plan (Page 58 of the Resolution Plan Compilation)
Page23of75 IA No.331 of 2021 In (Admitted) Regulation 38(1)(b)- The amount payable under a resolution plan to the financial creditors, who have a right to vote under sub-section(2)ofsection21anddidnotvoteinfavourof theresolutionplan,shallbepaidinpriorityoverfinancial creditors who voted in favour of the plan. Part III – Clause 7, Clause 10 and 12 (Page61,65and66of the Resolution Plan Compilation) Regulation 38(1A)- Aresolutionplanshallincludeastatementastohowit has dealt with the interests of all stakeholders, including financialcreditorsandoperationalcreditors of the corporate debtor. Part III- Clause 4,5,6,7,8,9,10,11,12,13 and 14 (Page 60 to 70 of the Resolution Plan Compilation) Regulation 38(1B)- A resolution plan shall include a statement giving details if the resolution applicant oranyofitsrelated parties has failed to implement or contributed to the failure of implementation of any other resolutionplan approved by theAdjudicatingAuthorityatanytimein the past. Part III- Clause 19.Implementation of any other resolution plan (Page 74 of the Resolution Plan Compilation) Regulation38(2)ofInsolvencyandBankruptcyBoard of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 Compliance under Resolution Plan a) The term of the plan and its implementationschedule; Part II- Clause 1 Validity andtermofthe resolution plan, plan implementation schedule (Page 54 of the Resolution Plan Compilation)
Page24of75 IA No.331 of 2021 In (Admitted) (b)Themanagementandcontrolofthebusinessofthe corporate debtor during its term; Part II- Clause 5 Management of the CorporateDebtor(Page 57 of the Resolution Plan Compilation) (c) Adequate means for supervising its implementation; Part II- Clause 5 Management of the Corporate Debtor, Stepwise Implementation of the resolution plan (Page57and59ofthe Resolution Plan Compilation) d) Provides for the manner in which proceedings in respect of avoidance litigation transactions, if any, under Chapter III or fraudulent or wrongful trading under Chapter VI of PartIIoftheCode,shallwillbe pursuedaftertheapprovalofFinalresolutionplanand the manner in which the proceeds, if any,fromsuch proceedings shall be distributed: Provided that this clause shall not apply to any resolution plan that has been submitted to the AdjudicatingAuthorityundersub-section(6)ofsection 30onorbeforethedateoftakencommencementofthe InsolvencyandBankruptcyBoardofIndia(Insolvency Resolution Process for Corporate Persons) (Second Amendment) Regulations, 2022 Part III – clause 15(iii) and 15(iv) (Page 72 of the Resolution Plan Compilation) Regulation 38(3) of Insolvency and Bankruptcy Board ofIndia(InsolvencyResolutionProcessfor Corporate Persons) Regulations,2017 Compliance under Resolution Plan a. It addresses the cause of default Part III- Clause 20 Other Confirmations (Page 74 of the
Page25of75 IA No.331 of 2021 In (Admitted) Resolution Plan Compilation) 2. It is feasible and viable Part III- Clause 20 Other Confirmations (Page 74 of the Resolution Plan Compilation) (c)It has provisions for its effective implementation Part III- Clause 20 Other Confirmations (Page 74 of the Resolution Plan Compilation) (d) It has provisions for approvals required and the timeline for the same Part III- Clause 20 Other Confirmations (Page 74 of the Resolution Plan Compilation) (e) The resolution applicant has the capability to implement the resolution plan. Part III- Clause 20 Other Confirmations (Page 74 of the Resolution Plan Compilation) Regulation 39 (1) of Insolvency and Bankruptcy Board of India (Insolvency Resolution Processfor Corporate Person Regulations, 2016 Compliance under Resolution Plan
Page26of75 IA No.331 of 2021 In (Admitted) Regulation 39(1)- A prospective resolution applicant in the final list may submit resolution plan or plans prepared in accordance with Code and these regulations to the resolution professional electronically within the time given in the request for resolution plans under regulation 36B along with: a. anaffidavitstatingthatitiseligibleundersection 29A to submit resolution plan; b. deleted by amendment c. anundertakingbytheprospectiveresolution applicant that every informationandrecordsprovidedin connectionwithorintheresolutionplanistrueandcorrect anddiscoveryoffalseinformationandrecordatanytime will render the applicant ineligible to continue in the corporate insolvency resolution process, forfeit any refundable deposit, and attract penal action under the Code. Regulation 39(1A) Aresolutionplanwhichdoesnotcomplywiththeprovision of sub-regulation (1) shall be rejected. Part III- Clause 17- Section 29A Compliance(Page74of the Resolution Plan Compilation) (29A Affidavit as submittedbyResolution Applicantisatpage119 of Resolution Plan Compilation)
Page27of75 IA No.331 of 2021 In (Admitted) Regulation 39(2) Theresolutionprofessionalshallsubmittothecommittee allresolutionplanswhichrequirementscomplyofthewith theCodeandregulationsmadethereunderalongwiththe detailsoffollowingtransactions,ifany,observed,foundor determined by him:- (a) preferential transactions under section 43; (b) undervalued transactions under section 45; (c) extortionate credit transactions under section 50; and (d) fraudulent transactions under section 66,and the orders, if any, of the adjudicatingauthorityinrespectof such transactions Part III- Clause 15(iv) (Page 72 of the Resolution Plan Compilation) The avoidance application was e-filed vide e filing No. 404116000792021 and physically filed with the NCLT Chandigarh vide diary No.00079 on 15.01.2021 and 18.01.2021 respectively by the RP and was allotted IA No. 584/2021 Further in terms of Hon’ble SupremeCourt vide order dated 26.02.2020 passed in Anuj Jain v. Axis Bank Ltd.,(2020)8SCC401, Hon’ble NCLT Chandigarh vide order dated 06.09.2022 directed to file segregated applications and in compliance thereof, the Resolution Professionalsegregated the transactions falling under Sections 43, 45, 49, 50&66oftheIBC and e-filed the segregated applications vide e filing No 0404115/02366/2022, and physically filed the segregated applications with the NCLT Chandigarh vide diary No. 02366 on 26.09.2022, and 02364 on 26.09.2022, 02365 on 26.09.2022 respectively and these Applications were allotted with IA No.
Page28of75 18. Details of Resolution Plan/Payment Schedule: TherelevantinformationasperForm-Hwithregardtotheamountclaimed, amount admitted, and the amount proposed to be paid by the Resolution Applicant under the said resolution plan is tabulated as under : IA No.331 of 2021 In (Admitted) 1257/2022, 1258/2022 and 1256/2022 respectively, which are pending disposal. Regulation 39(3) The committee shall evaluate the resolution plans received under sub-regulation (1) strictly as per the evaluationmatrixtoidentifythebestresolutionplanand may approve it with such modifications as it deems fit. Providedthatthecommitteeshallrecordthereasonsfor approving or rejecting a resolution plan. Resolution Plan submitted by Mahakram Developers Private Limited was found tobeCompliant intermsofRequestfor Resolution Plan (RFRP) and was further considered by Committee of Creditors. After appropriate modifications in the Resolution Plan, the Resolution Plan was approved through e-voting which commenced after 17th CoC meeting convened on 27.04.2021. The details of the Resolution Plan were recorded in the minutesof17thmeeting of CoC before the agenda item for approval ofResolution Planwaspresentedfor e-voting.
Page29of75 Particulars Amount of Claim Filed (Rs. in Cr.) Amount of Claim admitted (Rs. in Cr.) Amount provided under the Plan (Rs. in Cr.) Amount provided to the amount claimed % Amount reflected in the last BalanceSheet before CIRP. (only on 3 starred item below) Amount available in liquidation Secured Financial Creditors INR 334.53 INR 332.95 INR 47.90 14.39% - NIL Unsecured Financial Creditors (exceptrelated party) INR 177.99 INR 157 INR 18.90 12.04% - NIL Unsecured Financial Creditors (exceptrelated party)- Asper addendum dated 27th March, 2023 - - INR 5.46 - - NIL *Staff & Workmen INR 0.38 INR 0.38 INR 0.05 13.08% INR 0.14 NIL Operational Creditors (statutory dues) INR 89.25 INR 85.69 INR 8.97 10.47% - NIL Related Party (includes Unsecured Financial Creditors & Operational Creditor) - - - - - - IA No.331 of 2021 In (Admitted)
Page30of75 Statutory Liabilities INR 3.41 INR 2.74 INR 0.22 8.01% INR 15.95 NIL Any other liability, including contingent liability - - - - INR 4.55 - Total INR 607.52 INR 578.78 INR 81.50 14.08% INR 20.60 In terms of addendum dated 27th March,2023whichwasapprovedin24th CoC meeting, the Resolution Applicant has allocated additional amount of INR 5.46 CrorestowardsbelatedclaimsfiledwithRPafterapprovalofresolutionPlan,who hadnotfiledtheirclaimsbutarereflectedinthebooksofaccountsoftheCorporate DebtorincludingtheApplicantsinIA1055/2022toIA1059/2022andIA1243/2022 in order dated 21stFebruary, 2023 passed by thisAuthority. It is clarified that the amount available in liquidation is directed to be Rs. 75.22CroresbutasstatedbytheResolutionProfessionalinhissubmission dated17.10.2023,itwillnotmakeanymaterialdifferenceinthedistribution under Section 53 of the Code in the present case. 19. Summary of the Financial proposal/ payment under the Resolution Plan is as follows:- Sr. No. Particulars Amount (Rs. in Lakhs) verified by RP Upfront Cash(Rs. in Lakhs) DeferredCashat the end of 1st Year (Rs. in Lakhs) Rest of Deferred Cash (Rs. in Lakhs) 1. CIRP Cost INR 330 INR 330 - - 2. Secured Financial Creditor INR 33,295.50 INR 100 INR 100 INR 4590 IA No.331 of 2021 In (Admitted)
Page31of75 3. Unsecured Financial Creditor INR 15,700.77 - - INR 1890 4. Unsecured Financial Creditor- As per addendum dated 27th March, 2023 - - - INR 546 5. OperationalCreditorfor Goods & Services INR 8569.30 INR 15 INR 15 INR 867 6. Operational Creditor Government Dues (Customs) - - - - 7. Operational Creditor Government Dues (Tax) INR 274.78 INR 4 INR 10 INR 8 8. Operational Creditor Employees & Workers INR 38.23 - INR 5 - 9. Funds for stabilization of Business and Working Capital - - - - * The CIRP cost of INR 330 Lacs is calculated asondateofapprovalof ResolutionPlanbymembersofCoC.Additionalcosthasbeenincurredpost approval of the Resolution Plan by the CoC. However, from the date of approval of the Resolution Plan by theCoCtillapprovaloftheResolution Plan by this Hon’ble Adjudicating Authority, the Resolution Applicant has cappedthecostsduringthesaidperiodatINR4Lacspermonthtoextentof INR24Lacsinclause5ofPartIIIoftheResolutionplan.(Clause4ofPartIII of the Approved Resolution Plan). IA No.331 of 2021 In (Admitted)
Page32of75 20. The PUFE Transactions filed by RP under Regulation 35A:- RP appointedanindependentagencyi.e.BDOIndiaLLPvideengagementletter dated11th February,2020astransactionauditorforcarryingouttransaction audit of the Corporate Debtor. After reviewing the transaction audit report dated22nd October,2020andaddendumreportdated12th December,2020 submitted by the Transaction Auditor, the RP in due consultation with his legal advisors,preparedanapplicationforavoidanceoftransactionsunder section 43, 45 and 66 of the Code. The details are as under: Sections Nature of allegation Amounts involved (In Crores) Documents relied upon Remarks IA No.331 of 2021 In (Admitted)
Page33of75 Section 43- Preferential Transaction Repayment of unsecured loan to related parties INR 1.85 The RP appointed an independent agency i.e. BDO India LLP as transaction auditor for carrying out transaction audit of C & C Towers Limited. After reviewing thetransactionauditreport and its addendum submitted by the Transaction Auditor, the RP in due consultation with his legal advisors, prepared and filed application in Hon’ble NCLT Chandigarh for avoidance of transactions. C&CTowersLimited(CCTL) had made repayment of unsecured loan of Rs. 0.25 Crores and Rs. 1.60 Crores respectively to its related party creditors, namely, FidereFacilitiesManagement Private Limited & Frontline InnovationPrivateLimitedon 23.01.2018andbetweenAug 2018 to June 2019, respectively. At the time of repayment of unsecured loans to the said relatedparties,CCTLhadan outstanding liability of Rs. 178.75 Crores towards its secured financial creditors and the construction at the Project was stalled on account of lack of working capital. Further, there were no supporting documents available to substantiate that thesepaymentsweremadein the ordinary course of business transactions. IA No.331 of 2021 In (Admitted)
Page34of75 Section 45- Undervalued transaction Transfer of receivable to related party INR 0.91 CCTL had transferred amounts aggregating to Rs. 0.91 Crores receivable from three parties to C&C Constructions Limited (CCCL). ManavImpexPrivateLimited- 0.67 Crores Priyanka Midha- 0.14 Crores ECIL Rapiscan Limited-0.10 Crores Total- 0.91 Crores Theabove-mentionedparties are the debtors of CCTL whosereceivableshavebeen transferred by CCTL without anyunderlyingtransactionor consideration and after such transfer,thesamehavebeen addedtothereceivablesdue from CCCL to CCTL Further,INR0.91croreswas transferred to CCCL on 31-March-2019 i.e. post initiation of CIRP against CCCL. IA No.331 of 2021 In (Admitted)
Page35of75 Section 66- Fraudulent Transaction Excessive mobilization advance and additionalpayment to related party without prior approval of lenders INR 66.80 CCTL had total receivable balanceofRs.66.80Crores from CCCL including: unadjusted mobilization advanceofRs.25.93Crores and excess payment of Rs. 40.87Croresthroughmultiple transactions from February, 2016 till June, 2017 Unadjusted Mobilization Advance CCTLhadextendedadvance to the extent of 35% of contract price to CCCL, however,Transactionauditor, mentionedthataspergeneral business/industry practice advance is usually allowed rangingfrom 15 to 20% of the contract value. It was noted that Rs 25.93 Crores of above advance is still unadjusted against construction Excess Payment of Rs 40.87 Crores CCTLhadalsomadeexcess payment of Rs 40.87 crores toCCCLoverandaboveRA bills and mobilization advances allowed to CCCL. Nolenderapprovalhasbeen sought for this payment. IA No.331 of 2021 In (Admitted)
Page36of75 Section 66- Fraudulent Transaction Non levy of liquidated damages and acceptance of liability INR 27.72 Non levy of liquidated damages As per the terms and conditions of the EPC contract,CCTLhadarightto impose and levy liquidated damages for a sum equivalent to 0.25% of the contract value per week or partofweek,maximumupto 5%oftotalcontractvaluei.e. Rs. 15.82 Crores in case of defaultbytheEPCcontractor (i.e. CCCL). The work was scheduled to be completed within 18 and 30 months from the compliance date (i.e. December16,2009)forISBT and Hotel & commercial complex, respectively. Despite inordinate delay in theproject,byEPCcontractor (i.e. CCCL), CCTL has not imposed any liquidation damages on CCCL. Acceptance of liability GMADA invoked the bank guaranteeofRs11.90Crores (providedbyCCCLonbehalf of CCTL to GMADA) in the year of 2016, for non-completion of work. Despite abovementioned situation, CCTL recorded Rs.11.90croresasliabilityof CCTL to CCCL IA No.331 of 2021 In (Admitted)
Page37of75 Section 66- Fraudulent Transaction Anomalies in Transactions with Related Party INR 2.51 Crores Inadequate supporting documents for Expenses claimed by FFMPL From FY18 to FY20, Fidere Facilities Management Private Limited (“FFMPL”), related party of CCTL, has incurred Rs 1.70 crores of manpower services, professional services and businesspromotionexpenses on behalf of CCTL. Management of CCTL has not provided adequate supporting documents with respect to such expenses, hence, its prima faciecreate suspicion over the genuineness of Rs 1.70 crores Inadequate supporting documents for Expenses reported / claimed by FFMPL from ISBT income CCTL has also awarded the work for Collection, Operations and Maintenance at ISBT, Mohali to FFMPL vide agreement dated 11.09.0217. From February 2019 to October 2019, FFMPL has disclosed income of Rs0.95 crores fromISBToperations, againstwhichexpensesofRs 1.17 crores were reported. Inadequate supporting documents for Expenses reported / claimed by FFMPL from ISBT income Out of Rs 1.17 crores of expenses, the genuineness and authenticity of the expenses of Rs 0.81 crores IA No.331 of 2021 In (Admitted)
Page38of75 incurredbyFFMPLcouldnot be verified. Also, clause 3 of the Agreementexecutedbetween CCTL and Fidere FFMPL recordsthatFFMPLcreateda security deposit of Rs.1.51 crore with CCTL, the agreement alsoprovidesfor payment of interest at the exorbitant rate of 12% on suchsecuritydepositpriorto termination of the agreement. 21. Asperclause15(iv)PartIIIoftheResolutionPlan,anycashrecovery from the parties in avoidance transactions (over and above the amount payable as per the terms of this Resolution Plan) under application, if adjudicatedinfavourbytheAdjudicatingAuthority,shallbesharedamongst alltheFinancialCreditorswhoseclaimshavebeenverifiedbytheResolution Professional in proportion to their admitted claims. 22. Itissubmittedthatthe resolutionprofessionalshallcontinuetopursue the avoidance transaction application in case the order is not passed by NCLT Chandigarh before the implementation Date (means the date, subsequenttotheEffectiveDatei.e.within90days,onwhichthedefinitive documents are signed or the date of the construction of the Project shall commence, whichever is earlier) and the cost of pursuing the avoidance transactionapplicationshallbebornebytheFinancialCreditorsandshallnot be borne by MDPL. As the dateofdisposaloftheavoidancetransactions application filed before thisBenchcannotbepredictedatthemoment,the Resolution Profesional is directed to continue to pursue avoidance IA No.331 of 2021 In (Admitted)
Page39of75 transactiontilltheirfinaldisposal.Thecostthereofisdirectedtobeborneby the financial creditors. 23. The affidavitonbehalfoftheResolutionProfessionalhasbeenfiled vidediaryNo.00699/8dated28.04.2023toplaceonrecordtheaddendumof 27.03.2023 to the resolution plan dated 28.04.2021 read with addendum dated 23.04.2021, clarification dated 30.03.2021 and the revised payment schedule in compliance of the order dated 21.02.2023ofthisAdjudicating Authority. 24. In compliance of order dated 16.05.2023 of this Adjudicating Authority,anaffidavitonbehalfoftheSRAregardingpaymentofprovident fund was filed vide Dairy Nos. 00699/9 dated 02.06.2023 and 00699/10 dated 09.06.2023 wherein it was deposed by the successful resolution applicant that successful resolution applicant will pay the contribution and others sum due from the cooperatedebtorunderprovisionsofEmployees Provident Funds and Miscellaneous Act, 1952 or Scheme or Pension SchemeortheInsuranceScheme,andunderthePaymentofGratuityAct, 1972. 25. ThebusinessrevivalplanaslaiddowninClause9.2ofPartIofthe Resolution Plan states the following with regard to the treatment of the approximately 195 Allottees, who have filed their claims as financial creditors,beingadvancegivenbythemtoCorporateDebtorforleaseofreal estate units. ● Resolution Applicant proposes to satisfy all the claims filed by the Allottees in the Project either by issuing fresh letter ofallotmenton IA No.331 of 2021 In (Admitted)
Page40of75 revisedterms&conditions,inpriorityovertheAllotteeswhofailedto adhere to the payment schedule as per the Letter of Allotment executedbetweentheparties,orbyrefundoftheamountsclaimedby theAllottees,inthemannerasproposedinthisResolutionPlanand subjecttothetermsandconditionsmentionedherein.Theallotmentof theunitstotheAllotteesshallbegovernedbythetermsofthefresh LetterofAllotmentonrevisedtermsandconditonsasperresolution plan that will be issued to the Allottees. ● The Allotttees shall be given the option either to take refund or to continue with the Allotment as provided in the manner as provided herein below. ● The total verified claim of the Creditors in Class (Allottees) is INR 41,87,00,000/-(RupeesFortyOneCroresEightySevenLakhsonly), aboveshallbesettledinfullbypaymentofanamountequivalentto INR4,42,00,000/-(RupeesFourCroresFortyTwoLakhsOnly.)tobe paidbytheResolutionApplicantin4yearssubsequentto18months moratorium period from the Implementation Date. ● TheAllotteeswhoopttocontinuewiththeallotment,shallhavetopay differential charges as per the revised average rate in terms of the Resolution Plan. Average rate here means the averageofexisting allotment rate for all categories of Allottees. Any increase in the differential charges payable by the Allottees in terms oftherevised average ratewouldbepaidonproratabasis.Theamountsalready paidbysuchAllotteesshallbeadjustedandtheAllotteesshallpaythe balance amounts as per the revised average rate in quarterly IA No.331 of 2021 In (Admitted)
Page41of75 instalments within two years from the Implementation Date. If the Allotteesoptforinstalmentschemethenthesameshallattractinterest @12%whichwillbechargedonreducingbalancebasis.Further,the provision of guaranteed lease/rentals to the Allottees under the exisiting Letter of Allotment would be extinguished. ● ThedecisionwithrespecttotheoptionexercisedbytheAllotteeshall beconveyedbytheAuthorisedRepresentativeoftheAllotteeestothe Resolution Applicant within 30 days from the Implementation Date. ● Resolution Applicant proposes tocompletethependingconstruction activities and hand over the possession of respective units to the Allottees who opt to continue with the Allotment of the unit in the manner as specified under this Resolution Plan. ● TheResolutionApplicantproposestoprovideunitsintheProjectsin themannerasproposedinthisResolutionPlantotheAllotteeswhose claimswereverifiedandadmittedbyResolutionProfessionalandwho opt to continue with the Allotment of the units. ● The Allottees will be required to make balance payments towards constructionoftheProjectasperthefreshLetterofAllotmentandto the extent as demanded as per the Resolution Plan. The existing Letter of Allotment with the Allottees shall stand cancelled. This amount does not include any amount payable to any Government Authority in relation to registry,taxes,cessoranykindofadditional facility like electrification charges (pro rata share of providing HT power supply). The same wouldbeascertainedandpayablebythe Allottee at the time of offer of possession. IA No.331 of 2021 In (Admitted)
Page42of75 ● TheResolutionApplicantintendstostartconstructionrelatedactivities within8–10 (eighttoten)weeksfromtheimplementationdate.The said period of eight to ten weeks shall be utilised for mobilisation activities. The Resolution Applicant shall target to complete the developmentandconstructionwithin24monthsfromImplementation Date for Tower A, within 36 months for Tower B from the ImplementationDateand48monthsforTowerCfromimplementation date subject to Force Majeure in a phased manner, with a buffer period of additional 12 months on account of any unforeseen circumstances. ● In case an Allottee opts for transferoftheunit,thentheResolution Applicant shall charge fees of Rs. 200/-persq.ft.,plusapplicable taxes, for any transfer of ownership from existing Allottee as administrative charges, and such Allottee shall be bound by the Resolution Plan. ● IncasetheAllotteesdonotwishtocontinuewiththeallotmentthen the entire area after the settlement of claim of allottees as aforementioned shall be available for resale to the Resolution Applicant and all claims, liabilities etc shall stand extinguished. 26. TheprovisionfortheeffectiveimplementationoftheResolutionPlanis providedinthePartII,Clause18oftheResolutionPlanwhichisextractedas below:- IA No.331 of 2021 In (Admitted)
Page43of75 “18. PROVISIONS FOR EFFECTIVE IMPLEMENTATION The steps for completion and effective implementation of the transactions contemplated in this Plan are set out in Part II (ImplementationProvisions).TheResolutionApplicant,theCorporate Debtor, the Monitoring Agency, the Committee of Creditors and all other relevant stakeholders of the Corporate Debtor shall take all relevantactionsàsmayberequiredfor(i)implementingthestepsset out in Part II (Implementation Provisions); and (in) effecting the paymentstotherelevantstakeholdersoftheCorporateDebtor,asset out in Part III (Mandatory ProvisionsofthePlan);therebyachieving effective implementation of the Plan”. 27. The effective date is defined in the Resolution Plan asthedateon which thisResolutionPlanisapprovedbytheAdjudicatingAuthorityunder Section 31 of the IBC. The implementation date is defined as the date, subsequenttotheeffectivedate,i.e,within90days,onwhichthedefintive documents are signed or the date of the construction of the project shall commence, whichever is earlier. 28. It is further mentioned that upon approval of this plan and on payment to all the stakeholders of the amounts as proposed in the Resolution Plan, all the secured financial creditor shall relinquish their chargesfromthecorporatedebtor’s remainingpropertiesexistingasonthe insolvency commencement date in terms of the decision of the Hon’ble Supreme Court in the case of Ghanshyam Mishra and Sons Private Limited through Authorised Signatory vs. Edelweiss Asset ReconstructionCompanyLimitedthroughtheDirector&Ors.2021SCC Online SC 313 and the principle of clean slate under Insolvency and Bankruptcy Code, 2016. IA No.331 of 2021 In (Admitted)
Page44of75 29. Details on Management/Implementation and Relief as per the Resolution Plan include the following Salient Features: a. Plan implementation timeline. b. Management of the corporate debtor. c. Supervision of Implementation of the Resolution Plan. d. Appointment of CEO,CFO,COO and CS. e. Managerial Competence and Technical Abilities. 30. Certain Waivers, Reliefs, and Exemptions have been sought in the Resolution Plan which are summarised below:: Sr. No. Relief and/or Concessions and Approvals Sought Competent Authority/ Courts/ Government/Semi-Gov ernment Authority for relief sought The observations as regards reliefs/concessions soughtas below are:- IA No.331 of 2021 In (Admitted)
Page45of75 1. Clause 11.1 Licenses/Approvals/Contractual Rights and Benefits, Page 38 of the Resolution Plan Compilation · TheResolutionApplicanthasalso consideredthatbyvirtueoftheorderof theAdjudicatingAuthorityapprovingthis ResolutionPlanandsincetheResolution Applicant would acquire the Corporate Debtor on a ‘going concern’ basis, all consents, licenses, approvals, rights, entitlements, benefits and privileges whether under law, contract, lease or license or any registration, granted in favour of the Corporate Debtor or to whichtheCorporateDebtorisentitledor accustomedtoshall,notwithstandingany provision to the contrary in their terms and notwithstandingthattheymayhave already lapsed or expired due to any non-compliance or efflux of time, be deemedtocontinuewithoutdisruptionfor the benefit oftheCorporateDebtorand the Resolution Applicant for aperiodof 42monthsfromtheNCLTPlanapproval date i.e. the Effective Date or until the period mentioned in such Business Licenses, whichever is later; _________________________________ Fortheavoidanceofdoubt,itishereby clarified that all consents, licenses, approvals, rights, entitlements, benefits and privileges whether under law, contract, lease or license, granted in favour of the Corporate Debtor or to whichtheCorporateDebtorisentitledto, whichwereinplaceonthedateofshut downofconstructionworkattheproject shall be deemed to continue without disruptionforthebenefitoftheCorporate Debtorforaperiodof42monthsfromthe EffectiveDateortillthecompletionofthe Project or untilrenewedbytherelevant authorities,whicheverislaterasperthe ResolutionPlan.Withoutanyliabilitiesfor non-complianceduringthetimespecified above, the Resolution Applicant undertakestoexpeditiouslyidentifysuch expired consents, licenses, approvals, rights, entitlements, benefits and TheAuthorities/Courts/ Government/ Semi-Government Authority include but are not limited to Hon’ble NCLT Chandigarh, RERA Punjab, Stamp Duty Department/ROC New Delhi/PF Department ______________________ Licenses/Approvals/Contract ual Rights and Benefits prevailing asonthedateof the initiaton of the CIRP is allowed to continue. However, last or expired licenses approval etc., the concerned authority be approached. _________________________ The SRA is taking over the corporate debtor on a “going concernbasis”andinthiscase, the project work shut down midway andtheprojectishalf complete. The SRA is to completetheunfinishedproject asonthedateofshuttingdown of the work, the corporate debtor was entitled to certain consents, licenses, approvals, rights,entitlementsetcandthe same arewithinentitlementof the SRA. However,ifsomeof those have expired in the meanwhile, the SRA is to identifythosewithinaperiodof 2 months and approach the appropriate authoritywhomay consider the same expeditiously in keeping in mindtheobjectiveoftheCode IA No.331 of 2021 In (Admitted)
Page46of75 privileges whether under law, contract, leaseorlicense,grantedinfavourofthe Corporate Debtor or to which the Corporate Debtor is entitled to and evaluate the steps required to address the sameandtakestepstoremedythe same to the extent practically possible; ________________________________ The period of non-operation i.e. from shutdown date of construction work to ImplementationDate,shallnot becounteduponi.e.anyapproval,grant, licenseetc.shallbetreatedtobeineffect as the same was in effect on the shutdowndateandshallremainvalidfor theirresidualtenureasontheshutdown date of construction work; All relevant Governmental Authorities shallgrantrelieffrompaymentofstamp duty,registrationchargesandapplicable fees (including fees payable to the jurisdictional registrar of companies) as alsoanyfee,costsorchargesasmaybe payable to Punjab RERA Authority for changeinownership/control,revisionof project completiontimelines,etc.forthe (i)successfulimplementationofthePlan (including for increase in authorised share capital, any capital reduction, issuance or transfer of shares or debentures,provisionofloanandrelated security interest and release ofsecurity interest, as contemplated in this Plan); and (ii) allotherrelateddocumentsthat may be executed by the Resolution Applicant and/ortheCorporateDebtor in respect of the transactions contemplated under the Plan; _ _____________________ toenablethecorporatedebtor remain a going concern. As the shut down cannot be attributed to any action of the SRA who will take over only from the effective date, the period of non-operation is allowedtobenotcountedupon from any approval, grant, licenseetc,theSRA,however, is directed to approach the appropriateauthorityincaseof expired approvals, grants which are expired. The authorities will consider such requirements expeditiously. Keepinginviewtheobjectives of IBC. These prayers are subject to the Rules and Regulations of the respective authorities and thesamecannotbegrantedby this Tribunal. The SRA to approach the appropriate authoritywhomayconsiderthe sameexpeditiouslykeeping in mindtheobjectivesoftheCode toenablethecorporatedebtor remain a going concern. IA No.331 of 2021 In (Admitted)
Page47of75 · TheRegistrarofCompanies,New Delhi to take on record and implement the Plan, upon approval of thePlanby the NCLT, without any further compliances; · AllGovernmentalAuthoritiestowaive the Non-Compliances of the Corporate Debtor prior to the Closing Date (including Non-Compliances under Companies Act, 2013, Employees’ Provident Fund & Miscellaneous Provisions Act, 1952 and other Applicable Laws, and Non-Compliances in relation to non-payment of any outstanding charges and dues by the Corporate Debtor (includingstampduty, registration fee and property Taxes); SincetheResolutionApplicanthas beenprovidedwithlimitedinformationin relationtotheBusinessPermitsandtheir currentstatus,itisprobablethatcertain oftheBusinessPermitsoftheCorporate Debtorhavelapsed,expired,suspended, cancelled, revoked or terminated orthe Corporate Debtor Group has Non-Compliances in relation thereto. Accordingly,allGovernmentalAuthorities to provide reasonable time period, if required, in order for the Resolution Applicant to assess the status of these Business Permits and ensure that the Corporate Debtor is compliant with the terms of such Business Permits and Applicable Law without initiating any investigations,actionsorproceedingsor imposing any costs in relation to such Non-Compliances and permit the Resolution Applicant to continue to operatethebusinessesoftheCorporate Debtor; · AllGovernmentalAuthoritiesto grant any relief, concession or dispensation as may be required for implementation of the transactions contemplated under the Plan in accordancewithitstermsandconditions, The necessary compliance be made before the Registrar of Companies as per law. These prayers are subject to the Rules and Regulations of the respective authorities and thesamecannotbegrantedby this Tribunal. The SRA to approach the appropriate authoritywhomayconsiderthe same expeditiously keeping in mindtheobjectiveoftheCode toenablethecorporatedebtor remain a going concern. Allowed. Given the complexities involved in completing this half finished project as well as the vast number of rules and regulations applicable to this project, the corporate debtor should be given reasonable time period by the respective authorities and the SRA to approach the respective authorities with this request who may consider keeping in mindtheobjectiveoftheCode toenablethecorporatedebtor remain a going concern. _____________________ These prayers are subject to the Rules and Regulations of the respective authorities and thesamecannotbegrantedby IA No.331 of 2021 In (Admitted)
Page48of75 andtowaivetheNon-Compliancesofthe Corporate Debtor; · Notwithstanding anything contained in thisPlan,thisPlanandtheamountsand payments contemplated and set out in this Plan have been arrived at on the basis of the (i) information provided by the Resolution Profession in the InformationMemorandum,(ii)information onthestatusofclaimsason17.02.2021 providedbytheResolutionProfessional, and(iii)informationprovidedonVDRtill 17.02.2021.Itisclarifiedthattherightsof theResolutionApplicant,setforthinthis Chapter are without prejudice or detriment to any rights, remedies or powersthattheResolutionApplicantmay haveinunderapplicablelaws,underany documentoronequity.Intheeventthat any of the assumptions set out in this Plan are breached, the Resolution Applicant and the members of the erstwhile Committee of Creditors (represented through their authorised representative), as applicable, shall mutuallydiscussandagreeonasuitable redressal method; Regulation37(l)oftheCIRPRegulations provides that a resolution plan may provide for the measures required for implementingit,includingbutnotlimited toobtainingnecessaryforapprovalsfrom theCentralandStateGovernmentsand other authorities. Accordingly, the Resolution Applicant requires all Governmental Authorities to grant any relief, concession or dispensation as envisaged in the ResolutionPlanforits implementation. Inthisregard,uponthe NCLTapprovingthePlan,theResolution Applicant will pursuant to the NCLT’s order,makenecessaryapplicationstothe relevant Governmental Authorities to seek such waivers and reliefs, as ____________________ this Tribunal. The SRA to approach the appropriate authoritywhomayconsiderthe same expeditiously keeping in mindtheobjectiveoftheCode toenablethecorporatedebtor remain a going concern. Allowed. The issues arisingin the course of the implementation of the plan should ideally be resolved through mutual discussion by thestakeholders.However,itis beyond the powre of this authority to prevent stakeholders from seeking alternate remedies to protect their interests. The SRA to approach the appropriate authoritywhomay consider the same keeping in mindtheobjectiveoftheCode toenablethecorporatedebtor remain a going concern. The planisalreadygreatlydelayed. Toavoidanyfurtherdelay,the Government Authorities are directed to expeditiously consider and decided on the request for relief, concession made by the corporate debtor preferably within a period of IA No.331 of 2021 In (Admitted)
Page49of75 appropriate. In particular, and without limiting the foregoing, the Resolution Applicant requires the measures as stated in Part I and from the other relevantGovernmentalAuthorities,which the Resolution Applicant believe are required for implementing this Plan; · TheResolutionApplicantand Corporate Debtor shall not be liablefor any payments against any contingent liability whether mentioned in the InformationMemorandumornotincluded in the InformationMemorandumbutnot limited to liabilities on account of bank guarantees given to customers or any otherentity,IncomeTax,GST,SalesTax, VAT,ExciseDuty,CustomDutyandany otherduty,Tax,Cess,leviesetc.dueto Centre,State,orLocalBodiesotherthan as proposed in this Resolution Plan; · TheCorporateDebtor,Resolution Applicant and their Board of Directors (appointedafterNCLTPlanapprovaldate i.e.theEffectiveDate)shallnotbeliable foranybreachornon-complianceofthe termsandconditionsoftheLayoutPlan, concession agreement, Lease Deeds, Buy back arrangements and the MaintenanceAgreementsandsuchother clearances/approvals, etc., by the Corporate Debtor, for a period until the NCLTplanapprovaldatei.e.theEffective Dateandanypenalty/claimforanysuch breach or non-compliance shall stand waivedandextinguishedonandfromthe NCLTplanapprovaldatei.e.theEffective Dateandaccordinglyallsuchpayments shallbedeemedtobesettledintermsof this Resolution Plan by virtue of settlement of dues of the operational Creditors or creditors in class, as the case may be. · UponapprovalofthisResolution Plan by the Hon’ble NCLT, all actions stated in this Resolution Plan shall be threemonthsofreceivingsuch application. Allowed.Asageneralrule,the corporate debtor starts on a cleanslateaftertheapprovalof the Resolution Plan and as suchtheliabilitiesoftheperiod prior to the approval of the Resolution Plan stands extinguished under the provisions of the Code. The SRA will be taking over after the effective date of the Resolution Plan and hence, cannotbeheldresponsiblefor any infringement, deviations committed by the erstwhile management and cannot be madetopayanypenalty,claim foractioncommittedbeforethe approvaloftheResolutionPlan in viewofthecleanslatepolicy enunciated by the Hon’ble Supreme Court in thecaseof GhanshyamMishraandSons Private Limited through Authorized Signatory vs. Edelweiss Asset Reconstruction Company Limited throughtheDirector & Ors. 2021 SCC Online SC 313. IA No.331 of 2021 In (Admitted)
Page50of75 deemedtobeapproved.Accordingly,any action or implementation of this ResolutionPlanshallnotbeagroundfor terminationofanyClearancesorthelike that has been granted totheCorporate DebtororforwhichtheCorporateDebtor has made an application forrenewalor grant. · TheapprovalofthisPlanbythe NCLTshallbedeemedtohavewaivedall the procedural requirements intermsof Section 66, Section 42, Section 62 (1), Section71oftheCompaniesAct,2013, and relevant rules made thereunder, in relation to reduction of share capital of the Corporate Debtor; · Upon the approval of the ResolutionPlanbytheNCLT,anyclaims by any person whether submitted to Resolution Professionalornot,admitted byResolutionProfessionalornot,dueor contingent, asserted or un-asserted, crystallised or uncrystallised, known or unknown, secured or unsecured, disputedorundisputed,presentorfuture againsttheCorporateDebtoraccruedas on the insolvency commencement date against the Corporate Debtor, whether arising under the subsisting consents, licenses, approvals, rights, entitlements, benefits and privileges whether under law,contract,leaseorlicense,grantedin favour of the Corporate Debtor or any contractualarrangementsenteredintoby the CD , shall notwithstanding any provision to the contrary in their terms, stand extinguished without any recourse; · ThesubmissionofthisResolution Planshallnotinanymannerprejudiceor affect the ability of the Resolution Applicant/SPV to be a Resolution Applicant under the Code in respect of any other person or in respect of any other corporate insolvency resolution process under the Code. Allowed subject to the observationthattheSRAwould makeapplicationforrenewalof grant etc to the respective authorities who may consider the same keepinginmindthe objectiveoftheCodetoenable the corporate debtor remaina going concern. Tobeasperprovisionsofthe Companies Act, 2013. No waiverbythisauthoritycanbe considered. Grantedinviewofthedecision of the Hon’bleSupremeCourt in the case of Ghanshyam Mishra and Sons Private Limited through Authorized Signatory vs. Edelweiss Asset Reconstruction Company Limited through theDirector&Ors.2021SCC Online SC 313. Allowedsubjecttothecondition that it should not affect the implementation of the present Resolution Plan. IA No.331 of 2021 In (Admitted)
Page51of75 2. Clause11.2LiabilitiesforPastActions or Omissions, Page 41 of the Resolution Plan Compilation · AllClaimsagainsttheCorporate Debtor from any Party as on the Implementation Date will stand extinguished subject to however the ResolutionApplicantfulfillingitsfinancial obligations undertaken under this Resolution Plan. In this context it is further clarified that: a. Claims admitted/verified by the Resolution Professional shall stand settled and extinguished as per the Resolution Plan. b. Claimsthatwereeithernotfiledor notadmittedorrejectedduringtheCIRP in terms of the provisions of the Code shall stand extinguished; c. AnyClaimthatmayarisepostthe Implementation Date including Claims under applicable Law, contract, judicial/quasi-judicial proceedings, disputed or undisputed, crystallized or otherwisewhichrelatetotheperiodonor prior to the insolvency Commencement Date shall always be subject to the paymentproposedtobemadeunderthis Resolution Plan and shall pose no additional liability (whether financial, contractual, performance or otherwise) on the Resolution Applicant. d. Any claims made under any guarantees issued by the Corporate Debtor on behalf of any third party(ies) shallalsostandextinguishedasapartof thisResolutionPlanandthebeneficiaries ofsuchguaranteesshallbeexpectedto recover the monies with respect to uninvokedguaranteesfromtheprincipal borrowerandforanyshortfall,theyshall not have any recourse against the Corporate Debtor and/or the Resolution Applicant. · All outstanding negotiable instruments issued by the Corporate Debtor including demand promissory notes, post-dated cheques, bills of Government/ Semi-Government are not limited to Hon’ble NCLT Chandigarh. Allowed in view of the decision of the Hon’ble Supreme Court in the case ofGhanshyamMishraand Sons Private Limited through Authorized Signatory vs. Edelweiss Asset Reconstruction Company Limited through the Director & Ors. 2021 SCC Online SC 313,which held that as on the dateof the approval of the Resolution Plan, all such claims that are not part of the Resolution Plan shall stand extinguised and no person will be entitled to initiate or continue any proceedings in respect of such claims. IA No.331 of 2021 In (Admitted)
Page52of75 exchange,lettersofcreditetc.shallstand terminated and the Liability of the CorporateDebtorundersuchinstruments shallstandextinguishedotherthanthose issued during the CIRP process; · Allpowersofattorneyexecutedby oronbehalfoftheCorporateDebtoron orpriortotheImplementationDateshall stand revoked and cancelled except when expressly continued by the new management formed after the Effective Date; · The Resolution Applicant, and its directors, officers and employees shall have immunity from any actions and penalties(ofanynature)underanylaws foranynon-complianceoflawsinrelation to the Corporate Debtor or by the Corporate Debtor, as well as with the termsofanyagreementorarrangement entered into by the Corporate Debtor, which was existing as on the ImplementationDateandsuchImmunity shallcontinueforaperiodof12months from, the Implementation Date. Without anyliabilityforthenon-complianceduring thetimespecifiedabove,theResolution Applicant shall undertake to cause the CorporateDebtortoexpeditiouslyidentify such non-compliances, evaluate the steps required to address such non-compliances and take steps to remedy such non-compliance to the extent practically possible. The Resolution Applicant and the Corporate Debtor shall be entitled toapplytoand approachtheHon’bleNCLTforrelieffor continued implementation of the approvedResolutionPlanbeforeorafter any coerciveactionistakenagainstthe Corporate Debtor or the Resolution Applicant. · TheCorporateDebtorshallbe entitled to terminate or modify any contract(s) (including contracts with Granted in terms of the provisionsofSection32Aof theCodewhichprovidesfor cessation of the liability for prior offences etc. _____________________ Allowedintermsoftheclean slate policy enunciated by the Hon’ble Supreme Court IA No.331 of 2021 In (Admitted)
Page53of75 parties that were related parties of the CorporateDebtorpriortotheInsolvency Commencement Date) if in view of Resolution Applicant they eitherimpose onerous conditions or may render the revival of the Corporate Debtor and implementationofthePlanimpracticable orunviableorhindertherestructuringfor the Corporate Debtor and its Affiliates; · Withregardtoallotherunevolved bank guarantees / letters of credit, itis expressly stated that the Resolution Applicantshallneitherbeliabletohonor such bank guarantee / letters of credit norshallitbeobligedtorenewthebank guarantee / letters of credit or provide anyassistancetotherespectivecreditors tocontestordefendanyclaimsthatare raisedbythebeneficiary.Thesatisfaction or payment by the respective creditors uponreceiptofanyclaimsinconnection withtheaforementionedbankguarantees / letters of creditshallnotbeconstrued as a default on part of the Corporate Debtorand,anymodificationsrequiredin the bank guarantee / letter of credit documents to reflect such arrangement shall be made by the respective creditors. Allagreements/arrangements between the Corporate Debtor and the persons currently classifiedaspromoter or promoter group, persons acting in concert with promoters, holding companies, subsidiary companies, associate companies, group companies and / or their respective affiliates / associates,shallstandterminatedatthe instanceoftheResolutionApplicant,with no Liability to the Corporate Debtor (includingbutnotlimitedtowithregardto anypreviousbreaches)ortoResolution Applicant.However,itisclarifiedthatall claims of the Corporate Debtor against such relatedparties(andallliabilitiesof such related parties towards the Corporate Debtor) shall remain outstanding, due and payable in accordance with their terms, including any that may arise from the implementation of this Resolution Plan and shall be vested in the Corporate in the case of Ghanshyam Mishra and Sons Private Limited through Authorized Signatory vs. Edelweiss Asset Reconstruction Company Limited through the Director & Ors. 2021SCC Online SC 313. IA No.331 of 2021 In (Admitted)
Page54of75 Debtor and/or its successors for the benefit of the Resolution Applicant only; · Notwithstandingthetermsofthe relevant agreements, the NCLT shall direct that prior approval of the counterpartiesshallnotberequiredtobe obtained for change in control / constitution of the Corporate Debtor pursuant to the terms of this Plan and such counterparties: (i) shall waive all objections / liabilities of the Corporate Debtor arising out of the initiation of corporate insolvency resolution / bankruptcy proceedings involving the Corporate Debtor, appointment of the ResolutionProfessionalandinrespectof theimplementationofthisPlan;(ii)shall waive the right to suspend these agreementsduetoanypreviousdelays/ failuresbytheCorporateDebtortomake payments under such agreements; and (iii) shall not modify prejudicial to the Corporate Debtor or terminate the relevantagreementsortakeanyadverse actions against the Corporate Debtor. 3. Clause 11.3 RelevantTaxAuthorities, Page 43 of the Resolution Plan Compilation · TheCorporateDebtorandthe Resolution Applicant shall not be liable for any taxes and shall be granted an exemption from all Taxes, levies, fees, transfercharges,transferpremiums,and surcharges that arise from or relate to implementation of the Resolution plan, since payment of these amounts may make theResolutionplanunviable.Any reference to Taxes shall include any transferpremiumsorcharges,changeof ownership/ Control charges payable in connection with the implementation of Government/ Semi-Government are not limited to Income Tax Department/Hon’ble NCLT Chandigarh/ CentralBoardofDirect Taxes/GST Department/ Central Board of Excise and Customs/Registrar of Companies. The SRA is directed to approachtheTaxAuthorities for these concessions and reliefs whowillconsiderthe same keeping in view the objectives of the IBC, 2016. IA No.331 of 2021 In (Admitted)
Page55of75 thisResolutionPlanandtheconsequent change in ownershipandControlofthe Corporate Debtor. Further: · TheCentralBoardofDirectTaxes /relevantTaxauthoritiesanditsenforcing officers and /oragencies(includingbut not limited to the Assessing Officer, Commissioner of Income Tax, Commissioner of Income Tax (Appeals) andIncomeTaxAppellateTribunal)to:(i) not void or take any other actions with respecttothetransactionscontemplated underthisPlanunderSection281ofthe IT Act; (ii) exempt the Resolution ApplicantoritsnominatedSPVfromany liabilitypursuanttoSections56and170 of the IT Act; and (iii)notlevyanyTax (includingminimumalternateTax)arising asaresultofgivingeffectto,orotherwise in relation to, the Plan, in thehandsof the Corporate Debtor, the Resolution Applicant or its nominee. The Central BoardofExciseandCustomstonotvoid ortakeanyotheractionswithrespectto thetransactionscontemplatedunderthis Plan under Section 81 of the Central Goods and Service Tax Act, 2017 and notimposeanysuccessorliabilityonthe Resolution Applicant or its nominated SPV, or the Corporate Debtor; · TheCentralBoardofDirectTaxes / relevant Tax authorities to not subject incomeorgainorprofits,ifany,arisingas aresultofgivingeffecttothePlantoTax including minimum alternate Tax in the hands of Corporate Debtor; · TheCBDT/DORshallgrantthe following exemptions / waivers: (i) from applicability of Section 56 (2)(x) and Section281oftheIncomeTaxAct,1961 including obtaining no-objection certificate fromincometaxauthoritiesin respect of all the pending proceedings anddues(includinginterestandpenalty) of the Corporate Debtor/Shareholder(s) arising for periods up to the Implementation Date (including such proceedingsandduesforperiodspriorto the Implementation Date that may crystallize subsequent to the IA No.331 of 2021 In (Admitted)
Page56of75 Implementation Date). and (ii) from all Tax Liabilities (including interest and penalty) and Tax proceedings arisingin respect of periods up to the Implementation Date, including such Liabilities/ proceedingsforperiodsupto the Closing Date that may crystallize subsequent to the Implementation Date inrespectofon-goingorpotentialIncome - tax litigations at all levels; · TheCBDT/DORwilltreatthe transactionundertheResolutionPlanas bonafidely undertaken with a view to revive the existing Business and shall treat the Resolution Plan, approved by Hon’bleNCLTasdulycompliantwiththe provisions of the Income Tax Act,1961 andthusanystepfollowedaspartofthe restructuring under this Resolution Plan shallbeprovidedanyspecificexemption from tax, if arising on account of the steps followed in the transaction. The Income-Tax authorities shall waive any Taxes, including Minimum AlternateTax orunder“Incomearisingunderthehead IncomefromOtherSources,arisingfrom orinconnectionwiththeimplementation of the Resolution Plan. The Corporate Debtorshallbepermittedtocarryforward its unabsorbed tax losses and unabsorbeddepreciationnotwithstanding a change in the shareholding of the Corporate Debtor as provided under Section 79 of the Income Tax Act,The Central Board of Excise and Customs (“CBEC”)/DOR to not void or take any other actions with respect to the transactionscontemplatedunderSection 81oftheCentralGoodsandServiceTax Act,2017andnotimposeanysuccessor liability on the Resolution Applicantand the Corporate Debtor. Further CBEC/DOR shall waive the Corporate Debtor and Resolution Application from all Tax Liabilities (including interest and penalty) and Tax proceedings arisingin respect of periods up to the Implementation Date, including such Liabilities/ proceedingsforperiodsupto the Implementation Date that may crystallize subsequent to the Implementation Date in respect of any IA No.331 of 2021 In (Admitted)
Page57of75 on-goingorpotentialTaxlitigationsatall levels; · Alltheduesincludingtaxes/cess/ interest / penalty and other liabilities outstanding towards GST, Income Tax, RoC any other statutory authority, existingasonNCLTPlanapprovaldate i.e. the Effective Date, shall stand extinguished. No liability shall arise on the Resolution Applicant for the period priortoNCLTPlanapprovaldatei.e.the Effective Date. · TheCorporateDebtorshallnotbe disallowed any previous deductions before the Implementation Date on the grounds of non-payment or non-deductionofTDSwhichhasalready been allowed in previous returns; · TheResolutionApplicantand/or the Corporate Debtor, as the casemay be, shall be entitled to all the assets includingallbenefitswithrespecttoinput tax,creditofVariousTaxesincludingbut not limited to service tax, sales tax, goods and service tax or cess by whatever name known, available as balanceinfinancialstatementsasofthe Implementation Date; · Anyliabilityrelatingtoaperiod priortotheImplementationDate,arising out of or relating to any such benefit/assetaccruingortobeaccruedto the Corporate Debtor,willbetreatedas anOperationalCreditorandnoadditional payment shall be made or be payable with respect to such liability by the Corporate Debtor and/or the Resolution Applicant; and · AllClaims(whethercontingentor crystallized, known or unknown, filedor not filed)orGovernmentalAuthoritiesin relationtoallTaxeswhichtheCorporate Debtor was or may be liable to pay (includingwithrespecttofinancialyears underassessment),alldeductionsandall withholding Taxes on any payment, as required under Applicable Law and pertaining to the period prior to the Insolvency Commencement Date shall stand extinguished on the NCLT Plan IA No.331 of 2021 In (Admitted)
Page58of75 approval date i.e. the Effective Date. Furthermore,andwithoutprejudicetothe other generality of the foregoing, any assessment, re-assessment, revision or otherproceedingsundertheprovisionsof the applicable Laws relating to Taxes wouldbedeemedtobebarredinrelation toanyperiodpriortotheImplementation Date, by virtue of the order of the Adjudicating Authority approving this Resolution Plan. · Anytaxliability(includingany interest and/or penalty thereon) arising on account of transfer of development rights from subsidiaries to Corporate Debtor shall stand reduced to NIL and the Resolution Applicant and/or CorporateDebtorshallnotbeunderany obligation to pay any tax/demand in relation to the same. · Therequirementofobtainingano objectioncertificateundersection281of theIncome-TaxAct,1961andprovisions of taking over its predecessor’s Tax liabilityundersection170oftheIncome Tax Actshallnotbeapplicable.Further, the transaction shall not be treated as voidundersection281oftheIncomeTax Act,1961foranyclaimsinrespectofTax or any other sum payable by the Corporate Debtor or anyshareholderof the Corporate Debtor. Similarly, any requirementstoobtainwaiversfromany tax authorities including in terms of Section 79 and Section 115B and any other provision of the Income Tax Act, 191 is deemed to have been granted uponapprovalofthisResolutionPlanon the NCLT Plan approval date i.e. the Effective Date. · ThattheAdjudicatingAuthoritybe pleased to give our issue necessary direction, instructions to the CBDT, Central board of Indirect Taxes and Customs and State GST authorities to exemptincome/gain/profits,ifany,arising as a result of giving effect to the Resolutionplanandfrombeingsubjected to Income Tax in the hands of the Corporate Debtor or the Resolution IA No.331 of 2021 In (Admitted)
Page59of75 Applicant under the provisions of value added tax, customs, octroi,exciseduty, service tax, goods & services Tax, Income-Tax Actincludingbutnotlimited toanyincometaxandMinimumAlternate Tax (MAT) liability arising on capital reduction in Corporate Debtor, consolidation of share capital of CorporateDebtor,writeoff/writedownof current amounts due to employees, vendors,OperationalCreditors,Financial Creditors, value of assets, value of inventories etc. Without any impact on brought forward tax and book loss/ depreciation; and waive all liabilities whether crystallized ornotinrespectof Taxes (including interest and penalty) arising in respect of periods up to the NCLT Plan approval date i.e. the Effective Date; · Waiverofanywithholdingtax, income-tax and MAT liability or consequences (including interest, fine penalty, etc) on Corporate Debtor, ResolutionApplicantanditsshareholders onaccountofvariousstepsasproposed in theResolutionplan,includingbutnot limited to liabilities if any underSection 28, Section 41, Section 56,Section43, Section 28, Section 115JB, Section 79, Section45,Section269SS,Section269T andSection271EoftheIncome-TaxAct, 1961, Including, without limitation: a. Waiver of MAT and income tax implication arising due to hiving-off of surplus/obsolete assets, sold by the Resolution Applicant. b. Waiver of MAT and income tax implicationarisingduetowriteback/write offofliabilitiesinthebooksofaccountsof CorporateDebtorwithoutanyimpacton brought forward tax and book loss/depreciation, pursuant to this Resolution Plan. c. Waiver of MAT and income tax implicationsarisingduetotherevaluation ofassetsoftheCorporateDebtortotheir realisable value, pursuant to this Resolution Plan. IA No.331 of 2021 In (Admitted)
Page60of75 · C&CConstructionsLtd.wasa contractor of the Corporate Debtor and had taken an advance of INR 58.6 Crores for the purpose of construction and development work. C&C ConstructionsLtd.iscurrentlyundergoing CIRP in terms of the provisions of IBC and the Resolution Professional of the CorporateDebtorhasfiledaclaimofINR 58.6 Crores in the CIRP of C&C Constructions Ltd. which has been verifiedandadmittedofINR49.4Crores by the Resolution Professional of C&C Constructions. Any amount recovered under the said claim filed by the ResolutionProfessionaloftheCorporate Debtor, shall be distributed proportionately amongst alltheSecured Financial Creditors of the Corporate Debtor.Itisclarifiedthatthesameshall beovertheabovetheamountallocated totheSecuredFinancialCreditorsinthe Resolution Plan. · Incaseanylitigationforrecovery of INR 58.6 Crores from C&C ConstructionLtd.isinitiatedorhastobe initiatedthenthesameshallbethesole responsibility of the secured financial creditors. · Anyliability/claimpertainingto period prior to Insolvency Commencement Date on account of non-payment of tax/interest/penaltyby CorporateDebtor,shallstandreducedto NILontheNCLTPlanapprovaldatei.e. the Effective Date and the Resolution Applicant and/or Corporate Debtorshall not be under any obligation topayany tax/demand in relation to the same. Allassets(includingproperties,whether freehold, leasehold or license basis) of the Corporate Debtortobevested,free and clear of all Encumbrances and disputes; ___________________ ____________________ Granted keeping in view the interestofthecorporatedebtor aswellasfinancialcreditorsof the corporate debtor and the relevant provisionsoftheIBC, 2016. Asregardsthepaymentof tax interest and penalty of the corporatedebtor,theSRAmay approach the Tax Authorities who will consider the same keeping in viewtheobjectives of the IBC 2016. Granted in terms of the provisions of IBC, 2016. 4. Clause 11.4. Punjab Real Estate Regulatory Authority (PRERA Government/ The SRA to approach Punjab Real Estate IA No.331 of 2021 In (Admitted)
Page61of75 Authority), Page47oftheResolution Plan Compilation · AllorderpassedbyPunjabRERA againsttheCorporateDebtorshallstand nullified. · Tograntrelieffrompaymentof anyfee,charge,levyetc.duetochange in ownership or revisions of project completion timeline etc. · Toacceptthenewtimeperiodfor completion of the construction of the Project, as contemplated under the Resolution Plan. Semi-Government are not limited to Hon’ble NCLT Chandigarh/RERA Punjab Regulatory Authority for necessary reliefs and concessions who will consider the same keeping inviewtheobjectivesofthe IBC, 2016. 5. Clause 11.5. Inquiries, Investigations etc. Page 47 of the Resolution Plan Compilation · Upon theapprovalofResolution Plan by the Hon’bleNCLT,allongoing investigations and proceedings as mentioned in the Information Memorandumorotherwise,'whethercivil or criminal, notices, of action, suits,' claims,disputes,litigation,arbitration or judicial, regulatory or administrative proceedingsagainstor inrelationto,or inconnectionwiththe Corporate Debtor or theaffairsofthe CorporateDebtor, pendingorthreatened,presentorfuture ( including without any limitation, any investigation, action, proceeding, prosecution,whethercivilor criminal,by theCBI,ED orany other regulatoryor enforcement agency), in relation to any Period prior to the Effective Date or arisingon accountof theacquisitionof thecontrolby the ResolutionApplicant over the Corporate Debtor pursuantto this Resolution Plan shall stand withdrawnordismissed andallliabilities or'obligationsinrelationthereto,whether ornotsetoutintheBalance Sheetsand Profit or Loss AccountoftheCorporate Debtor, will be deemed tohavebeen written off in fullwithoutanytaxliability on the Corporate Debtor and permanently extinguished and the Corporate Debtor and the Resolution Applicant shallatno pointoftime be directly orindirectly,heldresponsibleor Government/ Semi-Government are not limited to Hon’ble NCLT Chandigarh/CBI/Enforc ement Directorate/ Serious Fraud Investigation Office. Granted in terms of provisionsofSection32Aof the codewhichprovidesfor cessationofliabilityforprior offences etc. IA No.331 of 2021 In (Admitted)
Page62of75 liable in relation theretonotwithstanding anyadverseorderthatmaybepassedin respectofthesamebyanyauthorityprior or after the Completion Date. In caseofanyactionbyany governmental authority, enforcement directorate, serious fraud investigation office, ministry of corporate affairs, taxation authorities (direct or indirect taxes),centralorstateorlocalauthorities or any other Governmental Authority againstanyactsoromissionofCorporate Debtor or existing shareholder and/or directorofCorporateDebtor(Priortothe NCLT Plan approval date i.e. the Effective Date), shall not have any bearing on the ownership ofResolution ApplicantontheCorporateDebtorandits assets,includingbutnotlimitedtoProject and/orProjectLand,aftertheNCLTPlan approval date i.e. the Effective Date. · Upon the approval of the ResolutionPlanbytheHon’bleNCLT,all new inquiries, investigations, whether civil or criminal, notices, suits, claims, disputes, litigation,' arbitration or other judicial, regulatory or administrative proceedingswillbedeemedtobe barred and will not be initiated or admitted against the CorporateDebtorinrelation to any. prior periodtotheacquisitionof control bytheResolutionApplicantover the Corporate Debtor or on account of acquisition control by the Resolution Applicant over the Corporate Debtor pursuant to thisResolutionPlan.Inany event the Resolution Applicant, the Corporate Debtor or the reconstituted Board of Directors shall not be responsible for any non- compliance relatingtotheperiodpriortotheEffective Date. · Noconsequenceofliabilityarising out of any criminal act done by the CorporateDebtorand/oritsmanagement shallfallupontheResolutionApplicantor any employees, directors, representatives of Resolution Applicant and the Corporate Debtor. IA No.331 of 2021 In (Admitted)
Page63of75 · Neither shall the Resolution Applicant nor the Corporate Debtor nor their respective directors, officers, and employees tobe appointed afterthe Approval Date be liable for any violations, liabilities, penalties or fines with respect to or pursuant to the CorporateDebtornothavinginplacethe requisitelicensesandapprovalsrequired to undertake its business as per Applicable Laws and the Resolution Applicant seeks a time period of 12 months from the Effective Date, to ensure renewal of such consents/licenses and approvals. · UponApprovaloftheResolution Plan by the Adjudicating Authority, all pending litigations and contingent liabilities andanyandallclaimsagainst theCorporateDebtorinrelationtoanyof thoselitigationsshallstandautomatically revoked,released,cancelled,withdrawn, dismissedandreducedtoNILandshall be deemed null and void (as the case may be) and all financial obligations in relation to all such litigations shall be considered to be permanently settled, discharged,andextinguishedinfullwith effectfromtheNCLTPlanapprovaldate i.e.theEffectiveDate.Furthermore,any andallstay/restraint/claim/restriction oncreatinganyencumbranceorinterest of any third party on the Corporate DebtorortheProjectortheProjectLand or any assets of the Corporate Debtor shallbedeemedtobecancelled,waived and nullified and no such right or restriction shall be construed as continuing on and from the NCLT Plan approval date i.e. the Effective Date. · UponApprovaloftheResolution Plan by the Adjudicating Authority, the Resolution Applicant shall be the true, legal and beneficial owner of the Corporate Debtor and the Project (including Project Land) and shall have peaceful and quite enjoyment of the Projectwithoutanyhindranceofexercise ____________________ _______________________ Granted subject to the provisionsofIBC,2016and the clean state policy enunciated by the Hon’ble Supreme Court in the case ofGhanshyamMishraand Sons Private Limited through Authorized Signatory vs. Edelweiss Asset Reconstruction Company Limited through the Director & Ors. 2021 SCC Online SC 313. IA No.331 of 2021 In (Admitted)
Page64of75 ofitsrightsfromanythirdpartyincluding but not limited to any litigationsagainst theCorporateDebtoranditssubsidiaries (including its step-clown subsidiaries). · UponApprovaloftheResolution Plan by the Adjudicating Authority, the Resolution Applicant shall have aclean title towards the Corporate Debtor and the shareholding in favour of the Corporate Debtor of its subsidiaries (includingitsstep-downsubsidiaries)and the Project and Project Land. · UponApprovaloftheResolution Plan by the Adjudicating Authority, subject to the terms of this Resolution Plan,theResolutionApplicantshallhave theabsoluterighttodealintheCorporate Debtor anditssubsidiaries(includingits step-down subsidiaries) and in the Project and / or ProjectLandasitmay deem appropriate in its sole discretion, including but not limited to, sale,lease, disposeoff,alienatetheProject/Project Land / its built-up area, etc. · UponApprovaloftheResolution Plan by the Adjudicating Authority, any Fraud Investigation Office including SeriousFraudInvestigationOffice(SFIO) and Enforcement Directorate (ED)) (“investigation”) that have been initiated or are threatenedtobeinitiatedagainst the Corporate Debtor for actions/omissions of the Corporate Debtor and / or its stakeholders that relate to the period at any time till the Implementation Date shall stand automatically revoked, released, cancelled, withdrawn, dismissed and reducedtoNILandshallbedeemednull and void (as the case may be) and all financial obligations in relation to such Investigation shall be permanently settled, discharged, and extinguishedin full with effect from the NCLT Plan approval date i.e. the Effective Date. _______________________________ UponapprovaloftheResolutionPlan by the Adjudicating Authority, necessary ____________________ ___________________ _______________________ Granted in terms of provisionsofSection32Aof the codewhichprovidesfor cessationofliabilityforprior offences etc. The SRA to approach the relevant authorities for IA No.331 of 2021 In (Admitted)
Page65of75 directions would deemed to have been issued by the Adjudicating Authority to relevantauthoritiesinrelationtoapprovalof the Plan and to take necessary actions expedientlyinrelationtomakingnecessary updationintherecordsw.r.t.Project,Project Land such relevant authority shall issue necessary certificate/ approval letter in relation to the above. ___________________________________ · UponapprovaloftheResolution Plan by the Adjudicating Authority all Non-Compliances,breachesanddefaults of the Corporate Debtor for the period priortotheNCLTPlanapprovaldatei.e. the Effective Date (including but not limitedtothoserelatingtoacquisitionof land/licences and if any Non-Compliances, breaches and defaults, shall be deemedtobewaived by the concerned Governmental Authorities.Immunityshallbedeemedto have been granted to the Corporate Debtor from all proceedings and penalties under all Applicable Laws for anyNon-Compliancefortheperiodprior to the NCLTPlanapprovaldatei.e.the Effective Date and no interest/penal implications shall arise due to such Non-Compliance/default/breachpriorto the NCLT Plan approval date i.e. the Effective Date. ____________________ neessary certificates/approval whoaredirectedtodecidethe same expeditiouslykeepingin viewtheobjectivesoftheIBC, 2016. Granted subject to the provisionsofIBC,2016and the clean state policy enunciated by the Hon’ble Supreme Court in the case ofGhanshyamMishraand Sons Private Limited through Authorized Signatory vs. Edelweiss Asset Reconstruction Company Limited through the Director & Ors. 2021 SCC Online SC 313. . 6. Clause 11.6 No legal action by creditors Page 49 of the Resolution Plan Compilation Anylegalactionofanykind/nature pending the occurrence of the ImplementationDate,nocreditorshallbe entitledtoinstituteorcontinueanysuits orproceedingsincludingexecutionofany judgment,decreeororderinanycourtof law,tribunal,arbitrationpanelorauthority againsttheCorporateDebtorortakeany action to foreclose, recover or enforce any security interest created by the Corporate Debtor and/or any other person(s) or entities with respecttothe Claims in respect of its property or otherwiseincludingbutnotlimitedtothe Government/ Semi-Government are not limited to Hon’ble NCLT Chandigarh Grantedintermsoftheclean slate policy enunciated by the Hon’ble Supreme Court in the case of Ghanshyam Mishra and Sons Private Limited through Authorized Signatory vs. Edelweiss Asset Reconstruction Company Limited through the Director & Ors. 2021SCC Online SC 313, which lays down that once the resolution plan is duly approved by the NCLT, the claims as provided in the Resolution Plan shall stand frozenandwillbebindingon IA No.331 of 2021 In (Admitted)
Page66of75 LitigationcasesasmentionedintheData Room; · Allexistingottherwiseshallstand cancelledanddischargedexcepttheland belonging to the Corporate Debtor situated at Gujarat; __________________________________ · Any event of default having occurredonpartoftheCorporateDebtor under any of the financing documents enteredintobytheCorporateDebtoron itsownbehalforonbehalfofsubsidiaries (if any), joint ventures or associates to secure or guarantee any of their liabilities,priortotheNCLTPlanapproval date i.e.the Effective Date, shall be waivedinentiretyandallrightsu bynder theexistingfinancedocumentsinrelation thereto shall stand extinguished. ____________________ all the stakeholders, including the statutory creditors andnopersonwill be entitled to initiate or continue any proceeding in respect of such claims. Granted as per provisions of IBC, 2016. 7. Clause11.7toClause11.12Page50of the Resolution Plan Compilation · Subjecttoapplicableregulations and bye laws of GMADA/ State transport/PIDB, theResolutionApplicant shallbeallowedtoundertakeredesigning of the Project Site, based on its own viability assessments. · Subjecttoapplicableregulations and bye laws of GMADA/ State transport/PIDB, anyadditionalFAR(any basis)/ Ground coverage relating to the Project Site permitted under themaster planshallvestwiththeCorporateDebtor andnofurtherpaymentsshallbepayable to authority for such additional FAR/ Ground coverage or height coverage. __________________________________ · That the reconstitution and reduction of share capitalsetoutinthe resolution isapprovedandimplemented pursuant to the provisions of theCode, specifically, Regulation 37 of the CIRP Regulations read withSection31ofthe Code. The compliance with the provisionsoftheResolutionPlanandthe merger as proposed in this Resolution Plan shall be deemed to be in Government/ Semi-Government are not limited to Hon’ble NCLT Chandigarh/GMADA/St ate Transport Department/PIDB. ____________________ Directed to approach GMADA and other authorities for approval under applicable law/regulations. Necessary compliances to be made before the RegistrarofCompaniesand other authorities as per the provisions of the Acts applicable. IA No.331 of 2021 In (Admitted)
Page67of75 accordance with and constitute compliancewithanyandallprovisionsof Lawthatwouldhaveotherwiseappliedto a similar merger or reduction of capital under the Companies Act, 2013 the Income Tax Act, 1961 and/or under rules/circulars/regulations issued thereunder. · Debitbalanceofretainedearnings (i.e. Profit & Loss account) as on Implementation Date is lost or unrepresented by available assets of Corporate Debtor. Resolution Applicant proposed to adjust the debitbalanceof retained earnings against the credit balanceofsecuritiesPremiumAccountof Corporate Debtor. It is clarified that on account ofabovetransactionsofcapital reduction,trueandfairfinancialposition shall be reflected in the financial statements of the Corporate Debtor. · Themoratoriumprovisionsunder the Code including but not limited to Section 14 of the Code shall mutatis mutandis apply for the period from the NCLT Plan approval date i.e. the Effective Date till the Implementation Date.Withoutprejudicetothegenerality of the foregoing, the Corporate Debtor shallbeprovidedun-interruptedsupplyof essential servicesandgoodsduringthe periodfromtheNCLTPlanapprovaldate i.e. the Effective Date till the Implementation Date by all relevant Stakeholders. · TherelevantGovt.Authoritiesto issue structural stability certificate/NoC/OC/CC etc, in terms of the applicable laws for the structure already completed as on the Implementation Date if not already provided. _______________________ Asperaccountingstandards uner the Companies Act, 2013. _______________________ Allowed as per the provisions of the IBC, 2016. 8. Clause 12- Reliefs and Concessions from GMADA for implementation of the Resolution Plan Page 51 of the Resolution Plan Compilation Government/ Semi-Government Allowedasperobservations madeinourorderinIANo. 572/2022 above. IA No.331 of 2021 In (Admitted)
Page68of75 · GMADAshallwithdrawtheNotice of Termination dated 04.04.2016 of the Concession Agreement dated 15.04.2009 on the approval of the Resolution Plan by the Adjudicating Authority and the pending Arbitration proceedings shall be deemed to have been terminated. · GMADAtoexcludetheperiod already consumed between the Compliance Date undertheConcession Agreement till the Effective Dateofthis Resolution Plan from the Concession Period of Tower A, B, C. · GMADAtorevisetheCompliance Date as defined under the Concession Agreement to start/begin from the Implementation Date of the Resolution Plan and thereby extending all other consequentialtimelinesasdefinedinthe Concession Agreement to start /begin from the Implementation Date till the successful implementation/construction oftheprojectintermsoftheResolution Plan. · GMADAshallprovidetheoptionto theResolutionApplicanttoeitherconvert the allotment of project site of Commercial Complex under the Concession Agreement from lease hold tofreehold.Themodalitiesofwhichshall be worked upon between thepartiesat the relevant time or an option at the handsofAllottees(FinancialCreditors)to convert their respective units into freehold after payment of requisite fees/charges etc. This fees shall commensurate with option of similar nature givenbyGMADAforotherlease hold Allottees. · Dispensation from seeking consent of GMADA for any business transfer to be undertaken between the Corporate Debtor and the Resolution Applicant/Special Purpose Vehicle ("SPV"). The business transfer, if so finalized by the Resolution Applicant, shall be an integral part of and in are not limited to Greater Mohali Area Development Authority(GMADA)/Hon ’ble NCLT Chandigarh These reliefs and concession can’t be granted by this authorities. The SRA is directed to approach GMADA for further necessary approval under applicable law/regulations. IA No.331 of 2021 In (Admitted)
Page69of75 accordancewiththeResolutionPlanand shall be deemed to have carried out without any further deed or action or procedural requirements required to be complied by theCorporateDebtor,SPV ortheResolutionApplicant.Itisclarified that the approval of the Adjudicating Authority shall constitute adequate approval for the business transfer and accordingly,noapproval/consentshallbe necessary from any other Person or Governmental Authority (including GMADA); · ThisResolutionPlanprovidesfor settlement of Operational Creditors including GMADA. Post the approvalof thisResolutionPlanbytheCoCandthe Adjudicating Authority, GMADA shall ensure that the Corporate Debtor is provided with unencumbered and unfettered takeover of the Project in terms of the Concession Agreement dated15.04.2009executedbetweenthe Corporate Debtor and GMADA and revised as per the terms of the Plan. · GMADA/ anyotherauthority should verify that the work has been executed as per the plansapprovedby statutory authority. Incase of any deviation from the approved plans, if required, GMADA shall reconcile and approve and carry out necessary modifications in the various definitive documents etc. with respect to the Project. Any levy/cost or penalties leviablebyGMADAtomaketheexisting project compliant should be waived off. Further, any costs incurred towards redevelopment shall be recovered from Financial Creditor- Allottees. · GMADAshallgrantwaiverfrom any imposition ofpenaltyorinterest,as the case may be, on the payments envisaged under thepresentResolution Plan and any future payments to be made in accordance with the timelines under the Resolution Plan. Allowedasperobservationsin our order in IA 572/2022. To approach GMADA as observed in our order in IA 572/2022. IA No.331 of 2021 In (Admitted)
Page70of75 · GMADAshallrevisetheAnnual Concession Fee charges under the Concession Agreement to 2% of the UpfrontConsiderationsubjecttoincrease at the rate 15% after every 10 (ten) years, over the previous Annual Concession Fee paid by theResolution Applicant. · Thereisnoallocationoflandas per sanction plan of the Project for installingsubstation.GMADAtoallocate land for installation of a suitable substation separately i.e. outside the current approved layout plan. Provision ofelectricityof18MVAConnection(high tension) and the erection of suitable substation and conduit to tap thetower hastobeatthecostofGMADAasitis part of external development charges and thevalueoftheEDCisbuiltinthe allotmentpriceoftheland.GMADAhas to make provision of 11 KVA power supply for the project site. · GMADAwouldallowmortgageof land to raise funds to carry out development work in the Project. 31. Onaperusalofthereliefsetc.,soughtabove,itisseenthatthose are claimed mainlyonthegroundthatthesame areessentialforkeepingthe corproatedebtorasagoingconcern.Manyofthereliefssoughtcomewithin the jurisdiction of Government Authorities/Departments. As regards such claims, it is clarified that under the IBC this Adjudicating Authority has powers to decide the reliefs claimed which are directly relatable to the Resolution Process and not over those pertaining to extraneous issues. Thus, the reliefs/waivers pertaining to the domain of various Departments/Governmental Authorities, except for those allowed in the foregoingparagraphsspecificallyconsideringtheneedtokeepthecorproate debtor as a going concern, is beyond the powers of this Adjudicating IA No.331 of 2021 In (Admitted)
Page71of75 Authoritytosanction andtheSuccessfulResolutionApplicantsareatliberty to approach the competent authorities/courts/legal forums/office(s) GovernmentorSemi-Government/StateorCentralGovernmentforgranting the said relief(s). 32. It is directed that any reliefsoughtintheresolutionplan,wherethe contract/agreement/understanding/proceedings/actions/notice etc., is not specificallyidentifiedorisacontingentliability,isatthismomentnotacceded to. 33. For the implementation of the plan following names have been proposed as the members of the Monitoring Committee: Name(s) of the proposed member(s) of implementation and monitoring committee Brief description of the Proposed member(s) of the I&M committee Anuj Jain Resolution Professional One representative of the Resolution Applicant Representative Authorised by MDPL One representative of the Financial Creditors (Banking and Financial Institutions) having the highest voting share in the CoC and having approved the Resolution Plan Representative Authorised by Edelweiss ARC 34. After hearing the submissions made by the learned counsel forthe ResolutionProfessionalandperusingtherecords,wefindthattheResolution Plan alongwiththeaddendumdated27.03.2023,hasbeenapprovedonthe terms both financial and others as detailed therein. As per the CoC, the IA No.331 of 2021 In (Admitted)
Page72of75 ResolutionPlanmeetstherequirementofbeingviableandfeasibleforthe revivaloftheCorporateDebtor.Byandlarge,allthecomplianceshavebeen donebytheRPandtheResolutionApplicantformakingtheplaneffective after approval by this Bench. 35. AsisclearfromtheminutesofthemeetingoftheCoC, theproposal oftheResolutionPlanbytheResolutionApplicantissubmittedonlyafter the clairifcationgivenbytherepresentativeofGMADAregardingwithdrawal of the notice for termination of the concession agreement and this fact has been duly recordedinthe16thCoCmeetingdated30.03.2021,whichhas beenmadepartoftheResolutionPlan.Wealsonotethatthoughthenotice was issued on 04.04.2016, subsequently, there is no instruction from GMADA tostoptheworkforcompletionoftheproject,andthattermination was never initiated by GMADA of the Concession Agreement dated 15.04.2009 between GMADA and Corporate Debtor. 36. We have extensively discussed the objections raised byGMADAin ourorderinIANo.572/2022andalsomentionedthesameunderthehead ‘reliefs and concessions’ in para 30 above. 37. On a perusal of the documents onrecord,wearesatisfiedthatthe Resolution Plan dated 28.04.2021 read with addendum dated23.04.2021, clarification dated 30.03.2021 along with theaddendumdated27.03.2023, thereto, are in accordance with Sections 30 and 31 of the Code and complies with Regulations 38 and 39 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. IA No.331 of 2021 In (Admitted)
Page73of75 38. Intheresult,subjecttotheobservationsmadeinthisorder,wehereby accord our approval to the Resolution Plan dated 28.04.2021 read with addendum dated 23.04.2021, clarification dated 30.03.2021 alongwith addendum dated 27.03.2023. 39. ItisfurtherdirectedthattheResolutionApplicant,ontakingcontrolof the corporate debtor,shallensurecomplianceunderallapplicablelawsfor thetimebeinginforce.Asfarasthequestionofgrantingtimetocomplywith thestatutoryobligationsorseekingsanctionsfromgovernmentalauthorities isconcerned,theResolutionApplicantisdirectedtodothesamewithinone year as prescribed under Section 31(4) of the Code. 39.1 The Resolution Plan as approved shall be binding on the corporate debtor and its employees, members, and creditors, including the Central Government, State Government, or Local Authority,towhomadebtinrespectofthepaymentofduesarising underanylawforthetimebeinginforcesuchasauthoritiestowhom statutory dues are owned, guarantors and other stakeholders involved in the resolution plan. 39.2TheMoratoriumimposedunderSection14shallceasetohave effect from the date of this order. 39.3. The Resolution Professional shall stand discharged from his duties with effect from the date of this order. However, he shall perform his duties in terms oftheResolutionPlanasapprovedby this Adjudicating Authority. IA No.331 of 2021 In (Admitted)
Page74of75 39.4.TheResolutionProfessionalisfurtherdirectedtohandoverall recordsandpropertiestotheResolutionApplicantandshallfinalize the further line of action required for starting the operation. The Resolution Applicant shall have access to all the records and premisesofthecorporatedebtorthroughtheResolutionProfessional to finalize the further line of action required for starting the operation. 39.5.Incaseofnon-compliancewiththisorderorwithdrawalofthe Resolution Plan, the performance security amount alreadypaidby theResolutionApplicantshallbeliabletobeforfeited,inadditionto such further action as may be permitted under the law. 39.6.Libertyisherebygrantedformovinganyapplicationifrequired in connection with the implementation of this Resolution Plan. 40. The project under consideration in the Resoltion Plan is ofnational importanceandhasbeeninitiatedaftersigningoftheConcessionAgreement betweentheconcessioningauthorityi.e.GMADAandtheconcessionairei.e. corporate debtor in the year 2009. One of the reasons mentioned for the failure of the corporate debtor to complete the project is the project cost overrun due to delay in implementation of the project. The SRA can only completethehalffinishedproject,iftheapprovals/permissionaregrantedby the authorities including GMADA in time. We, therefore,directtheSRAto approach these authorities in line with our directions in the foregoing paragraphswithintwomonthsofthisorderandtheauthoritiesaredirectedto consideranddisposeofsuchrequestsassoonaspossiblepreferablywithin a period of sixty days from the receipt of such request. IA No.331 of 2021 In (Admitted)
Page75of75 41. ThisAuthorityspecificallynotestheprocesslaiddownintheBusiness Plan(fortreatingclaimofAllottees)asextractedinPara25above.Thesame needs to be implemented in letter and spirit by the corporate debtor. 42. The Resolution Professional shall forward all recordsrelatingtothe conductoftheCIRPandtheresolutionplantotheBoardtoberecordedon its database. 43. The Resolution Professional shall file a copy of this order with the concernedRegistrarofCompanies,interalia,forupdatingthestatusofthe corporatedebtor.Additionally,theRegistryshallsendacopyofthisorderto the concerned Registrar of Companies. 44. The application bearing IA No. 331 of 2021 in the main Company Petition, i.e., CP(IB) No. 105/Chd/Hry/2019, shall stand allowed and disposed of accordingly. 45. A certified copy of this order may be issued, if applied for, upon compliance with all requisite formalities. Sd/- Sd/- (Subrata Kumar Dash) (Harnam Singh Thakur) Member (Technical) Member (Judicial) October 19, 2023 PB/TBG IA No.331 of 2021 In (Admitted)
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