04th December, 2023 Approval of Resolution Plan - E Complex Pvt. Ltd. [IA 764(AHM)-2021 in CP(IB)-563(AHM)-2018] (9.1 MB)
PRESENT: For the Applicant
:
For the Respondent
:
ORDER
The case is fixed for the pronouncement of the order. The order is pronounced in the open court, vide separate sheet.
-SD-
-SD-
SAMEER KAKAR
SHAMMI KHAN
MEMBER (TECHNICAL)
MEMBER (JUDICIAL)
IN THE NATIONAL COMPANY LAW TRIBUNAL
AHMEDABAD
DIVISION BENCH
COURT - 1
ITEM No.301
I.A/764(AHM)2021 in
C.P./563(AHM)2018
Order under Section 30(6) & 31 of IBC,2016
IN THE MATTER OF:
Mr. Chandra Prakash Jain Resolution Professional of E-Complex Pvt. Ltd.
........Applicant
........Respondent
Order delivered on: 04/12/2023 Coram:
Mr. Shammi Khan, Hon’ble Member(J) Mr. Sameer Kakar, Hon’ble Member(T)
IA/764(AHM)/2021 in CP/563(AHM)/2018 In the matter of E-Complex Private Limited 1 of 62 IN THE NATIONAL COMPANY LAW TRIBUNAL, DIVISION BENCH - I, AHMEDABAD
IA/764(AHM)/2021 in CP(IB)/563(AHM)/2018
[ An application under Section 30(6) & 31 of the Insolvency and Bankruptcy Code,2016 r/w Regulation 39(4) of the the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016
In the matter of E-Complex PVT. LTD.
Mr. Chandra Praksh Jain,
Resolution Professional of
M/s E-Complex Private Limited
CIN: U18109GJ2003PTC053442
Reg. Off:
306, 3rd Foor, ‘Gala Mart’,
Nr. Sobo Centre,
Before Safal Parisar,
above SBI/Union Bank/Hindmart,
South Bopal, Ahmedabad,
Gujarat- 380058.
… Applicant
Order Pronounced On: 04.12.2023
CORAM:
SHAMMI KHAN, MEMBER (JUDICIAL)
SAMEER KAKAR, MEMBER (TECHNICAL)
Appearance:
For Applicant(s) : Mr. Saurabh Soparkar, Ld. Sr. Adv. a.w.
Mr. Monal Davawala, Ld. Adv.
For the CoC
: Mr. Manish Bhatt, Ld. Sr. Adv. a.w.
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Mr. Yuvraj Thakore, Ld. Adv For the SRA : Mr. Kunal Vaishnav, Ld. Adv
O R D E R [Per: Bench]
This application is filed by the Resolution Professional of E-Complex Private Limited (Corporate Debtor) under Section 30(6) r.w. 31 of the Insolvency and Bankruptcy Code, 2016 (“Code”) seeking the following prayers: A. Pass an order approving the resolution Plan submitted by Invent Assets Securitization & Reconstruction Private Limited duly approved by the Committee of Creditors in accordance with Section 31(1) of the IBC, 2016; B. Pass an order directing that in accordance with Section 31(1) of the code, the approved Resolution Plan shall be binding on all Stakeholders of the Corporate Debtor; and/or C. Pass any such order or other further relief as the Hon’ble Tribunal deems fit and proper in the interest of justice.
It is stated that this Tribunal vide its order dated 09.12.2020 admitted Company Petition No. 563 of 2018 filed by one M/s. A.P. Securitas Pvt. Ltd., under Section 9 of the Code and the Applicant herein was appointed the Interim Resolution Professional (“IRP”) of the Corporate Debtor.
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It is submitted by the Applicant that in compliance with
Section 13, 15 and other relevant provisions of the Code
read with Regulation 6 of the IBBI (Insolvency Resolution
Process for Corporate Persons) Regulations, 2016 made a
public announcement dated 19.12.2020 in Business
Standard (English newspaper), Divya Bhaskar (Rajkot),
Gujarat Samachar (Gujarati newspaper) and Sandesh
(Bhavnagar), and also issued a public announcement
dated 31.12.2020 in Business Standard (Mumbai
Edition) regarding initiation of the CIRP against the
Corporate
Debtor
thereby
inviting
claims
from
various class of creditors of the Corporate Debtor.
4.
Post receipts of the claims, the Committee of Creditors
(“CoC”) was formed and thereafter various meetings were
held.
5.
It is stated that pursuant to the discussion in the 3rd and
4th CoC meetings and the subsequent finalization of
eligibility criteria as per Section 25(h) of the Code and
regulations made thereunder, the Applicant invited
Expression of Interest (“EoI”) in Form-G on 17.05.2021
with the last date of submission of EoI as 27.05.2021.
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It is stated that the Applicant apprised the CoC in its 9th
meeting held on 28.05.2021 regarding various inquiries
sought by the Prospective Resolution Applicants (“PRAs”)
about the submission of EoI and request to extend the
timeline for submission of EoI due to Covid-19 pandemic.
Accordingly, the CoC resolved to extend the period of
submission of EoI till 11.06.2021. Notice for extension of
period of submission of EoI was published by the
Applicant on 01.06.2021 which is placed at Annexure-C
of the Application.
7.
It is stated that the Applicant published a provisional list
of PRAs on 14.06.2021 and final list on 18.06.2021 and
the same was shared with the CoC members. Request for
Resolution Plan (“RFRP”) along with the Information
Memorandum and the Evaluation Matrix was issued on
18.06.2021.
8.
It is stated that the Applicant received only 1 Resolution
Plan within the timeline i.e. before 08.07.2021.
Thereafter, the Applicant also received e-mails from other
PRAs seeking extension of timeline for submission of the
Resolution Plan by 21 days. Accordingly, in the next CoC
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meeting held on 17.07.2021, the Applicant apprised the
CoC that out of 5 PRAs, only 1 PRA had submitted the
Resolution Plan and others had requested for time. The
CoC considering the requests of PRAs and various factors
including the restrictions due to Covid-19, decided to
extend the due date for submission of the Resolution Plan
till 28.07.2021.
9.
It is stated that 14th CoC meeting was held on 29.07.2021
wherein the Applicant apprised the CoC that only M/s.
GSEC Ltd. had submitted the Resolution Plan on
28.07.2021. The Applicant had again received emails
from Jindal Steel & Power Limited (“JSPL”) and Invent
Assets
Securitization
&
Reconstruction
Pvt.
Ltd.
(“INVENT”) seeking extension of the due date for
submission of Resolution Plan. However, the CoC with
89.81% voting, decided not to extend the due date for
submission of Resolution Plans. The PRAs were informed
about the decision of CoC but nevertheless they
proceeded
to
submit
their
Resolution
Plans
on
04.08.2021 and 05.08.2021 respectively.
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-
It is stated that JSPL filed an application bearing IA No. 566 of 2021 seeking direction to CoC and the Applicant to consider the Resolution Plan submitted by them. This Tribunal vide its order dated 23.08.2021 directed the CoC and Applicant to consider the Resolution Plan submitted by JSPL.
-
It is stated that on being apprised of the said order of this Tribunal, the CoC, in the interest of fairness, took the decision to consider the Resolution Plan submitted by INVENT along with JSPL.
-
In the meantime, Citi Securities Pvt. Ltd. (“CITI”) filed an application bearing IA No. 532 of 2021 before this Tribunal seeking direction for its inclusion as member of the CoC. This Tribunal vide its order dated 31.08.2021 directed the Applicant to include CITI as a member of the CoC. Accordingly, the CoC was re-constituted as under:
Sr. No. Name of Creditor Amount of Claim admitted % of Voting 1 Citi Securities & Financial Services Pvt. Ltd. 2,06,16,58,500 72.97% 2 Edelweiss Rural and Corporate Services Limited 66,06,74,398 23.38%7 of 62
3 The Karur Vysya Bank Ltd 1,62,50,439 0.57% 4 Union Bank of India 8,69,34,224 3.08% Total 2,82,55,17,561 100%
The CoC has been re-constituted during the CIRP due to assignment of loan by the lenders. The final reconstituted CoC members with respective shares are mentioned below: Sr. No. Name of Creditor Voting Share (%) 1. Citi Securities & Financial Services Pvt. Ltd. 72.97% 2. RKG Fund-I, A scheme of RKG Trust, category II AIF, managed by RKG Asset Management LLP 23.38% 3. Prudent ARC LTD 3.65% Total 100.00%
-
It is stated that the appointment of BDO LLP was done for the purpose of evaluation of the Resolution Plan. On 02.10.2021, the Applicant received the draft evaluation report from BDO LLP which was immediately shared with the CoC and later the final report was also shared by the Applicant with the CoC on 07.10.2021.
-
It is stated that one of the CoC members ie., Citi Securities Pvt. Ltd., holding majority share of 72.97%
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after its inclusion in CoC, suggested that since the
Resolution Plans were received before the reconstitution
of the CoC, the PRAs should be given an opportunity to
suitably modify/amend the Resolution Plan, if they wish
to do so. Pursuant to the same, the Applicant wrote email
to PRAs intimating about the reconstitution of CoC and
provided
7
days’
time
for
submission
of
the
modified/revised
Resolution
Plan
on
or
before
12.10.2021. It was also intimated that in case no
response is received, it will be assumed that the existing
Resolution Plan submitted by the respective PRA will be
taken up for further negotiation.
15. It is stated that JSPL and INVENT modified their
Resolution Plan and submitted on 12.10.2021 which was
shared by the Applicant with the CoC for their review.
16. It is stated that the 20th CoC meeting was held on
18.10.2021 wherein the Applicant asked the CoC
members whether the voting on Resolution Plans should
be conducted or not, whereby it was concluded by the
CoC
with
72.97%
voting
that enough
time
for
consideration of the Resolution Plan submitted by the
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PRAs had passed and the same should duly be put to
vote. Accordingly, e-voting was initiated on 18.10.2021
and resolved to be kept open for a period of 48 hours
considering that 19.10.2021 was a public holiday.
17. It is stated that on further requests, the e-voting was kept
open till 21.10.2021 i.e. initiated at 2:30 PM on
18.10.2021 and concluded at 2:30 PM on 21.10.2021
(totalling 72 hours). Copy of relevant mails exchanged
between the Applicant and the CoC with regards to the
same is annexed as Annexure-L.
18. It is stated that on 21.10.2021, the CoC with 72.97%
voting approved the Resolution Plan submitted by
INVENT and subsequently present application was filed.
19. It is seen from Form-H that claims which were received
and admitted in the CIRP of the Corporate Debtor are as
under:
(Amount in Rs.Crore)
Sr. No.
Category
of
Shareholders
Amount
claimed
Amount
admitted
1
Secured
Financial
Creditor
91.11
85.89
2
Unsecured
Financial
Creditor
252.62
206.17
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3 Operational Creditor 1.30 1.28 Grand Total 345.03 293.33
Key steps of the Resolution Plan are as under: - “. (ii) This Plan proposes cancellation of the Company’s existing paid-up share capital, without any payout to the existing shareholders of the company. The necessary corporate actions (if any) for cancellation of equity shares shall be taken by the Monitoring Agent. (iii) Infusion of Equity: A need-based amount up to a maximum of Rs. 26 lakhs (Indian Rupees twenty six lakhs only) (either in one or more tranches) shall be infused by RA (indirectly or directly, through its subsidiary(ies) / special purpose vehicle(s) / limited liability partnership/ nominees of the Resolution Applicant into the Company from its own funds, in consideration of which, the Monitoring Agency on behalf of the Company will issue to RA or its subsidiary(ies)/ special purpose vehicle(s)/ limited liability partnership/ nominees of the Resolution Applicant, as the case maybe 2,60,000 (two lakh sixty thousand) equity shares of face value of Re. 10 (ten) each (“RA Equity Subscription Amount”) constituting 26% (One Hundred Percent) of the issued and paid up equity share capital of the Company post cancellation of entire existing shareholding All the corporate actions (if any) required to achieve the aforesaid events shall be taken by the Monitoring Agent acting on behalf of the Company and infusion of RA Equity Subscription Amount, the Company’s issued and paid up equity share capital shall stand reduced to INR 1 Cr (Indian Rupees One Crore only) held by RA directly or indirectly through subsidiary(ies)/special purpose vehicle/limited liability partnership firms including nominees and verified financial lenders of ECPL in the ratio 26:74 respectively. Extinguishment of shares of Corporate Debtor will be done as per the Applicable Laws and accounting standards including through credit to Capital Reserve Account.
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The equity shareholding of the Corporate Debtor post cancellation of existing capital shall be as follows: Category of shareholder % of Equity Shareholdin g RA directly or indirectly through subsidiary(ies)/special purpose vehicle/limited liability partnership firms including nominees 26% Existing Promoter Group Nil Verified Financial Creditors 74% Total Issued, subscribed and Paid up equity Capital 100.00%
(iv)
An outlay of Rs.549.50 Cr (Indian Rupees Five Hundred Forty-Nine
Crores Fifty lakh only) is proposed under this Plan (“Total Financial
Outlay”) in respect of insolvency resolution of the Company, which
will comprise of:
(a) Infusion of RA Equity Subscription Amount of Rs. 26 lakhs (Indian
Rupees Twenty-Six Lakh only).
(b) An amount of Rs. 49 lakhs (Indian Rupees Forty-Nine lakh only) shall
be infused by resolution applicant into the Company from its own
funds, credit limits from its banks/ financial institutions, in the form of
Investor loan, other debt instruments or quasi equity through relevant
instruments, as per the provisions of this Plan.
(c) Rs. 3.01 cr(Indian Rupees Three crore one lakh only) to be paid by RA
in the form of the RA Funds to be utilized in accordance with this Plan.
(d) Rs. 20 cr (Indian Rupees Twenty crore only) to be paid out of the lease
rent receivable from Reliance Naval and Engineering Limited (RNEL),
considered in CIRP cost of RNEL
(e) Rs. 74 lakhs by issue of 7,40,000 equity shares of Rs. 10 each by
conversion of debts of verified financial creditors.
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Verified Financial creditors at their options can sell the Equity shares allotted to them to RA (acting directly or through its subsidiary(ies)/affiliates/special purpose vehicle/limited liability partnership firms), at the end of five years from the allotment of such shares. The shares will be bought by RA on a proportionate basis at a total consideration of Rs. 525 cr for 74% of the paid-up equity share capital issued to verified financial creditors, in terms of this plan. (v) RA had deposited an amount of Rs. 10 lakhs (Indian Rupees Ten lakhs only) in ECPL as Earnest Money Deposit, as set out in the Request for Resolution Plan (RFRP) and same amount had been submitted by the Resolution Applicant during EOI submission. RA has also submitted Rs. 45 lakhs as Earnest Money Deposit (both referred as “EMD”). If RA is the Successful Resolution Applicant, then the EMD of Rs. 55 lakhs (Indian Rupees Fifty-Five lakhs) which has already been deposited shall be utilised towards the settlement of Priority Amount and Financial Creditors Settlement Amount (defined in Clause 1.2 (vii) below). If RA is not declared as the Successful Resolution Applicant, then the EMD (i.e. Rs. 55 lakhs) will stand immediately released on and from the date as stipulated in the RFRP, without requiring any action on behalf of the Resolution Applicant. Further, on approval of the Resolution Plan by the CoC in terms of the provisions of IBC, if Resolution Applicant submits the Performance Guarantee by way of direct deposit in a designated bank account (as provided by Resolution Professional), then the said amounts along with any amount generated in the nature of interest therein (calculated from the date of deposit of Performance Guarantee till the date on which the last tranche payment of Financial Creditors is made under this Resolution Plan) shall be accrued and accumulated and shall be adjusted against the payment of last tranche to Financial Creditors under this Resolution Plan. (vi) Payments under this Plan will be made in the following manner:
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a) An amount of Rs. 3.76 Cr (Indian Rupees Three Crore seventy-six
lakh only) on or before the expiry of 90 days from the Effective Date,
towards (i) payment of CIRP Cost remaining unpaid as on the NCLT
Approval Date to an extent of Rs. 50 lakhs (Indian Rupees Fifty Lakh
only) ("Estimated CIRP Costs”) in priority to all other payments
under this Resolution Plan; (ii) payment of Rs. Nil (Indian Rupees Nil
only) towards full and final settlement of Company’s workmen &
employees as on the Insolvency Commencement Date (including the
minimum amount owed to such workmen and/or employees as
calculated in terms of Section 30(2)(b) of IBC) amounting to Rs. Nil
(Indian Rupees Nil only) proportionately.
b) On the NCLT Approval Date, the entire Outstanding Verified
Financial Debt of Rs. 282.55 Crores (as outstanding on the NCLT
Approval Date) shall stand restructured for the Corporate Debtor and
the Financial Creditors (“Restructured Debt”) and the Restructured
Debt shall be settled by the Resolution Applicant to the Financial
Creditors as per the following clauses.
c) Rs. 3.01 cr (Indian Rupees Three crore one lakh only), less (i) any
unpaid CIRP Costs as on the NCLT Approval Date over and above
Estimated CIRP Costs and (ii) any amount paid to the workmen and
employees under the Resolution Plan in terms of Section 30(2)(b) of
the IBC over and above the proposed payout of Rs. Nil (Indian
Rupees Nil only) to the workmen and employees (“Financial
Creditors Settlement Amount”), towards repayment to the
Financial Creditors funded from Funds as mentioned below:
-
An amount of Rs. 3.01 Cr (Indian Rupees Three Crore one lakh only) towards repayment to the Financial Creditors, less (i) any amount by which the aggregate of actual CIRP Costs exceeds the Estimated CIRP Costs; and (ii) any amount paid to the workmen and employees under the Resolution Plan in terms of Section 30(2)(b) of the IBC over and above the proposed payout of Rs. Nil (Indian Rupees Nil only) to the Workmen and
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employees, shall be paid on or before the expiry of 90 (ninety)
days from the Effective Date.
Notwithstanding anything to the contrary contained herein, the
said amount of Rs. 3.01 Cr (Indian Rupees Three crore one lakhs
only) shall be deposited in an escrow account (if applicable) with
the condition that, such money shall be available for utilization by
the Financial Creditors in terms of the Plan, on and after the
Effective Date but not later than 90 days from the Effective Date.
A detailed escrow agreement (if applicable), in this regard, may
be entered into with the Financial Creditors after mutual
discussions.
It is clarified that actual CIRP Costs over and above the Estimated
CIRP Costs and any amount paid to the workmen and employees
under the Resolution Plan in terms of Section 30(2)(b) of the IBC over
and above the proposed payout of Rs. Nil (Indian Rupees Nil only) to
the workmen and employees, shall be met or adjusted out of the
Financial Creditor Settlement Amount, in priority to payment of the
Financial Creditor Settlement Amount.
Upon payment of Rs. 3.01 Cr (Indian Rupees Three crore one lakh
only), to be paid by Resolution Applicant to the Financial Creditors,
entire Restructured Debt shall stand transferred/assigned by the
Financial Creditors to RA (“Assigned Debt”) along with all underlying
security interests including (i) any security interests created
exclusively in favour of one or more of the Financial Creditors, (ii) share
pledges, (iii) any third party security interests and any other rights and
claims in relation to the Outstanding Financial Debt, including all
personal guarantees given by third parties in association with the
Outstanding Financial Debt of Financial Creditors (“Personal
Guarantees”), corporate guarantees given by the promoters / third
parties in association with Outstanding Financial Debt (“Corporate
Guarantees”) and third party collateral securities given exclusively.
Simultaneously, the Debt amounting to Rs. 74 lakhs (Indian Rupees
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seventy-four lakhs only) will get converted into 7,40,000 Equity Shares
of Rs. 10 each representing 74% of the paid-up capital of corporate
debtor and will be issued by Corporate Debtor to the Financial
Creditors in pro rata manner.
RA shall acquire the Assigned Debt of the Corporate Debtor from the
Financial Creditors along with all underlying Securities (including
Personal Guarantees, Corporate Guarantees and Third-Party
Collateral Securities issued for and on behalf of the Corporate Debtor
by the Existing Promoter groups or their respective affiliates) and that
the Financial Creditors shall simultaneously with the payment of
upfront amount of Rs. 3.01 Crores, assign and all the obligors shall be
deemed to acknowledge and accept such assignment of rights under
the Assigned Debt without any recourse and security documents in
favour of RA or any financial institutions designated by RA and
relinquish all rights thereof.
PRIMARY SECURITIES
It is further clarified that all the fixed assets including immovable assets
and current assets of the company shall be given as securities against
the loan given by/assigned to RAs
Payment of the Financial Creditors Settlement Amount to the Financial
Creditors shall constitute full and final settlement of the Outstanding
Financial Debt owed by the Company to the Financial Creditors, and
upon assignment of the Assigned Debt to RA, all Security Interest and
all other rights and claims (including Personal Guarantees, Third Party
Collateral Securities and Corporate Guarantees) in relation to the
Outstanding Financial Debt shall stand assigned to RA in the manner
set out in Section 1.2 (vii)(c) above and shall automatically stand
charged in the manner set out in Section 1.2Error! Reference source n
ot found. below.
d) Subject to the determination of the CoC, the Financial Creditors
Settlement Amount shall be distributed and will form part of the
Resolution Plan.
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e) The Resolution Applicant shall be free to deal with new asset/capex
to be financed by the new capex lender and created by the Corporate
Debtor by way of Capex, including creating exclusive first charge
over such assets without seeking any consent/no objection from the
CoC/Financial Creditors.
f) New working capital lender, if any will have the exclusive first charge
on the future current assets created after the NCLT Approval Date.
(vii)
Upon assignment of Assigned Debt along with existing security
interests held by the Financial Creditors to RA as specified in Section
1.2(vii)(c), all such security interests including any security interests
created exclusively in favour of one or more of the Financial Creditors
and any other rights, title, interest and claims hitherto held by the
Financial Creditors in relation to the Outstanding Financial Debt shall
stand assigned to RA in the manner provided in Section 1.2 (vii)(c)
and all such assets (movable and immovable) shall automatically
stand charged in favour of RA as security for the Assigned Debt by
way of a first charge.
(viii)
After completion of all the steps outlined above in this Plan, the
shareholding of the Company shall be as follows:
Category of shareholder
% of Equity
Shareholding
RA
directly
or
indirectly
through
subsidiary(ies)/limited liability partnership firms
including nominees*.
*For the purpose of implementation of this Plan,
such subsidiary(ies)/ limited liability partnership
firms, including nominees (if any) shall also remain
in compliance with Section 29A of the IBC.
26%
Existing Promoter Group
Nil
Verified Financial Creditors
74%
Total Issued, Subscribed and Paid up equity Capital
100%
100%
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1.1.
Distribution of the Total Financial Outlay
The order of priority of distributions using the Total Financial Outlay,
is set out below:
Order
of
priority
Total Financial Outlay
Amount
(Rs.
Crore)
First
Estimated CIRP Costs
0.50
Second
Actual CIRP Costs over and above
Estimated CIRP Costs to be determined in
terms of Section 3.2.2.
Third
Amount payable to workmen and employees in the manner prescribed in Section 1.2(vii) (a). Nil Fourth
Amount payable to Operational Creditors
(other than workmen and employees) in
the manner prescribed in Section 1.2(vii)
(a).
0.25
Fifth
Subject to the adjustments in Section
3.2.2, and Section 1.2(vii)(b) and (c),
payment
of
the
Financial
Creditors
Settlement Amount.
3.01
Sixth
Subject to the adjustments in Section
3.2.2, and Section 1.2(vii)(b) and (c),
payment of the Financial Creditors against
lease rental (considered part of CIRP cost
recovery) from RNEL.
20.00
Seventh
Capital expenditure of the Company
Note
Eight
Need based cash flow requirement for
operations of corporate debtor / Company
i.e. Cash flow required to meet initial
startup cost
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Order
of
priority
Total Financial Outlay
Amount
(Rs.
Crore)
Note: The RA does not specify any amount however for Capital expenditure and running the operations post-Handover Date, if any capital is required, RA shall provide the same to the Corporate Debtor in form of ICD upto Rs. 40 Cr approximately
TOTAL FINANCIAL OUTLAY 23.76 In addition to the above: Verified Financial creditors at their options can sell the Equity shares allotted to them to RA (acting directly or through its subsidiary(ies)/affiliates/special purpose vehicle/limited liability partnership firms), at the end of five years from the allotment of such shares. The shares will be bought by RA on a proportionate basis at a total consideration of Rs. 525cr for 74% of the paid-up equity share capital issued to verified financial creditors, in terms of this plan. 21. Perusal of Form-H reveals that the SRA will provide Rs. 3.01 crore upfront payment to the Financial Creditors and infuse equity of Rs. 74 Lakhs by issue of 7,40,000 equity shares of Rs.10/- each by conversion of debts of verified Financial Creditors. The summary of which are as follows:
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(Amount in Rs. Crore)
Sr. No. Particulars of Creditors Upfront Payment of 3.01 Equity Infusion of 0.74 1. Secured Creditors [RK Fund-1 Prudent ARC]
0.70 0.11
0.17 0.03 2. Unsecured Creditors with Voting Rights [Citi Securities & Financial Services Pvt. Ltd.]
2.20
0.54 3. Unsecured Creditors with no voting rights [SKIL Infrastructure Ltd. (Related Party) SKIL Shipyard Holdings Pvt. Ltd.(Related Party)]
Not Eligible Not Eligible
-
Since SKIL Infrastructure Ltd and SKIL Shipyard Holdings Pvt Ltd., are related parties of the Corporate Debtor, they are not eligible for any payment in this Resolution Plan.
-
It is stated that by the way of Affidavit dated 28.10.2021 an undertaking regarding Performance Security for Resolution Plan by the Resolution Applicant was submitted, which stated that the Earnest Money Deposit (“EMD”) money of Rs. 55,00,000/- along with the additional payment of Rs. 2,00,000/- vide RTGS dated 28.10.2021 sumps up to a
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total amount of Rs. 57,00,000/- (Rupees Fifty-Seven Lakhs
Only) is to be considered as Performance Security towards
execution of the Resolution Plan as per terms of RFRP.
24. On 16.01.2023 an additional affidavit was filed placing on
record the minutes of the 24th CoC meeting held on
10.01.2023.
25. It is stated that an application bearing IA No. 133 of 2023
was filed before this Tribunal seeking stay of IA No. 764
of 2021 till final disposal of Civil Appeal No.(s) 5768 of
2022 which was filed by Reliance Naval and Engineering
Limited (“RNEL”) before the Hon’ble Supreme Court
seeking the status Quo of the CIRP. During the course of
the hearing on 17.01.2023, it was brought to the notice
of this Tribunal that Hon’ble Supreme Court has directed
to maintain status quo relating to CIRP of the Corporate
Debtor.
26. Since the Civil Appeal No. 5768 of 2022 filed before
Hon’ble Supreme Court was dismissed as withdrawn on
04.03.2023, this Tribunal vide its order dated 01.09.2023
dismissed IA No. 133 of 2023 as infructuous.
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-
The matter was heard from time to time and clarifications were sought. From the clarification order dated 19.04.2023., it is seen that the Successful Resolution Applicant (SRA) is an Asset Reconstructions Company (ARC) and is not permitted to carry on any business other than the securitization or asset reconstruction or the business referred to in Section 10(1) of SARFAESI Act, without prior approval of the RBI.
-
An additional affidavit was filed by the RP on 08.05.2023 submitting that the successful Resolution Applicant, Invent, filed an IA no. 1 of 2023 in IA no. 764 of 2021 for substitution of its name as the Resolution Applicant by the name of WestEnd Investment and Finance Consultancy Private Limited ("WestEnd") (Sponsor Company of Invent) in view RBI's circular dated 11.10.2022, published after the date of submission of the Resolution Plan by Invent. The IA 1 of 2023 was withdrawn with the liberty to move appropriate representation before the CoC.
-
The minutes of 25th and 26th meeting of CoC were filed vide Additional Affidavit on 08.05.2023 under Diary No.
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At the 25th Meeting of the CoC, it was stated that the CoC had approved the resolution Plan, there is no change in terms of the resolution Plan except the Substitution of “WestEnd”. At the 26th Meeting of COC, the CoC had passed the following resolutions: … "RESOLVED THAT, the Committee of Creditors of E Complex Private Limited hereby approves the designation of West End Investment and Finance Consultancy Private Limited and its sponsor as nominee of Resolution Applicant Invent Assets Securities & Reconstruction Company Private Limited for the purpose of implementation of the approved Resolution Plan. Resolved further that West End Investment and Finance Consultancy Private Limited ("West End") henceforth be considered as the Resolution Applicant implementing the Resolution Plan approved by the COC in meeting held on October 21, 2021 and filed for Approval by the Hon'ble NCLT, Ahmedabad Bench vide IA no.764 of 2021 dt. October 28, 2021.
This resolution was approved with 100% majority of the
CoC.
30. It is submitted by the Applicant that an Affidavit was filed
on 05.06.2023 for taking on record The Modified
Resolution Plan. It is mentioned that the Resolution Plan
was duly approved by the CoC, and a resolution was
passed for the substitution of the name.
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-
It is stated that an Affidavit is filed under Diary No. 2395 dated 28.06.2023 to place on record revised Form H and revised distribution to Creditors under the Resolution Plan.
-
It is stated that an affidavit under Diary No. 2668 dated 18.07.2023 was filed placing on record certain subsequent development/clarification which has recently taken place during the 27th CoC meeting held on 15th July 2023 after the last hearing before this Tribunal on 05.07.2023 as under: - a.
The Implementation of Resolution Plan is in no way contingent or dependent on implementation of Resolution Plan of Reliance Naval and Engineering Limited ("RNEL"). b.
In the event the lease rent of Rs. 20 crore receivable from RNEL are delayed or not received for any reason whatsoever, Resolution Applicant shall infuse the requisite proceeds into the Corporate Debtor to be able to meet the obligation under the Resolution Plan as envisaged under its para 1.1.4(iv) c.
Payment to operational creditors, while Resolution Applicant believes that the Resolution Plan appropriately complies with the requirement of law, the Resolution Applicant shall infuse further additional funds to meet the obligation as may be directed by Hon'ble NCLT. d.
The use/development of the land parcels available with the Corporate Debtor, Resolution Applicant has a detailed plan. It may be noted that, as per the Resolution Plan, the Financial Creditors will hold 74% equity stake in the Corporate Debtor.24 of 62
Resolution Applicant as Successful Resolution Applicant ("SRA") are confident that the said development plan will not only give equity upside to the Financial Creditors, but will also be sufficiently enable SRA to meet the obligation to successfully implement the Resolution Plan. e. Irrespective of the above clarifications, Resolution Applicant has their own financial and execution strengths to infuse requisite funds or otherwise to effectively implement the Resolution Plan. 33. It is stated that in the same Additional Affidavit dated 18.07.2023, the Successful Resolution Applicant had given undertaking stating that: - (a) To infuse Rs. 20 crores into the Corporate Debtor in case of delay or non-recovery of Lease Rent from M/s. Reliance Naval and Engineering Limited “(RNEL”) (b) Payment to Operational Creditor as may be directed by Hon’ble NCLT; and (c) Business plan for the development of the freehold land which is not given to RNEL on lease admeasuring 186 Acres and lying infused to sustain the Resolution Plan.
-
It is stated in an Additional Affidavit filed on 08.08.2023 for placing on record minutes of the 28th Meeting of CoC and the background of SRA along with its Net worth. It is reiterated by the SRA (WestEnd) that its Resolution Plan is in no way contingent/ dependent on the implementation of the Resolution Plan of RNEL. Details
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and background of “WestEnd” along with its experience
in the turnaround of stressed assets is placed on page 5-
7 of the said Affidavit.
35. This Tribunal passed the order on 09.08.2023 directing
the applicant to file the Tentative Balance Sheet on
Implementation of the Plan. In compliance to the above
stated order the Applicant filed an Additional Affidavit
under diary no. 3312 on 31.08.2023 for placing on record
the
Tentative
Balance
Sheet
post-approval
and
implementation of the Resolution Plan.
36. This Tribunal vide its order dated 01.09.2023 directed the
RP to file the Request for Resolution Plan (“RFRP”) and
point out the relevant provisions whereby the Resolution
Applicant could be changed after Resolution Plan is
approved. RP was also directed to place on record the
relevant resolution of CoC, where at the feasibility and
viability of the Plan was duly verified by the CoC. Liberty
was given RP to hold one more CoC meeting, if it is not
clearly recorded in the previous meeting.
37. In compliance of the order dated 01.09.2023 of this
Tribunal, an Additional Affidavit was filed on 14.09.2023
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under Diary No. 3561 placing on record RFRP and the
viability of the Resolution Plan examined by the CoC.
Thereafter, at the 29th Meeting of CoC held on
12.09.2023, the CoC has examined the feasibility and
viability of the Resolution Plan and by exercising its
commercial wisdom approved the Resolution Plan by
100% voting.
38. It is stated that this Tribunal vide its order dated
11.10.2023 directed the RP to hold another CoC meeting
to pass various issues involved during the process.
39. In compliance of the order of this Tribunal dated
11.10.2023, an Additional Affidavit filed under Diary No.
D4197 dated 25.10.2023 placing on record the details on
various issues discussed in the 30th CoC Meeting held on
20.10.2023. In the said affidavit, it is stated that the
Applicant had issued a letter dated 17.10.2023 to the
SRA i.e., WestEnd Investment & Finance Consultancy
Pvt. Ltd., asking for clarifications required in the matter
for Approval of Resolution Plan. The applicant put forth
the following for clarification:
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"The Resolution Plan mentions payment of Rs 525 Crores
after 5 years to the Financial Creditors who will have option to
sell their Equity Share and the SRA will buy back
74% Equity Shares.
Observation: Please provide time frame of repayment of Rs
525 Crores to the Financial Creditors by the SRA which is not
clearly mentioned in the Resolution Plan.
2.
To confirm that the SRA will not be paid anything for the period
of 5 years till the Financial Creditors are paid off fully. Further
the Corporate Debtor will have the benefit of the funds until
the Financial Creditors are paid fully.
3.
To confirm that the amount of Rs 525 Crores will not carry any
interest until the period of 5 years and also until the option of
selling of Equity shares is fully executed by the financial
creditors.
Further Please confirm that after expiry of 5 years when the
payment of Rs 525 Crores becomes due and in case the
company is not in position to buy back the shares for Rs 525
Crores then what would be the option available with the
Financial Creditors."
-
It is stated that the SRA vide its Affidavit dated 20.10.2023 gave the clarification/undertaking for the above questions raised by the Resolution Professional are as under: a) The above exit option to the Financial Creditors at the exit price of Rs. 525 Crs is in relation to 7,40,000 Equity Shares to be allotted to the Financial Creditors in terms of our Resolution Plan and each
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admitted Financial Creditors will be entitled to receive the same in proportion of their respective shareholding. b) In terms of the above provision of the Resolution Plan, in case the financial creditors opt to sell their shares, the same shall be purchased by us on the stipulated date being the date of expiry of five years from the date of allotment of the said shares to the Financial Creditors. c) I submit that as per the letter dated 12/9/2023 (Copy at Annexure "B" hereto) whereby the Successful Resolution Applicant ("SRA") had undertaken and confirmed to the COC that the unsustainable Debt to be taken over by us in terms of our Resolution Plan ("Unsustainable Debt") will be subordinated to the liability towards Financial Creditors for buy back of their shares as per the Resolution Plan and that such unsustainable debt will not be repayable by the Corporate Debtor unless the liability to buy back the shares from Financial Creditors is fully exhausted. d) I submit that notwithstanding the above or anything contrary contained in the Resolution Plan, if any, we hereby further undertake and confirm that the said Unsustainable Debt shall have the following terms and conditions: i. The unsustainable debt shall not carry any interest; ii. The Unsustainable Debt shall not be repayable:
-
Unless the liability of the SRA to buy back the shares from Financial Creditors is fully exhausted; or
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Until the expiry of six years from the date of Implementation of the Resolution Plan.
-
The same will be paid in 10 equal instalments and the first installment shall commence at the expiry of 7th year from the date of said subordinate debts taken over. iii. Repayment of the said Unsustainable Debt shall be subject to availability of adequate resources with the Company (after exhausting the liability to buy back shares from Financial Creditors as per the Resolution Plan), in the absence whereof the Unsustainable Debt shall be dealt, as may be deemed appropriate, without affecting the interests of the Financial Creditors, including, if so advised by converting it into Shares. I submit that the query raised by the RP on the SRA's ability to meet with the obligation to buy back the said shares upon exercise of the option by the Financial Creditors on the date of expiry of 5 years when such the payment of Rs. 525 Crores becomes due, we draw your kind attention to the details furnished vide our letter dated August 4, 2023, demonstrating our financial and execution strength to infuse requisite funds as may be required for effective and timely implementation of the Resolution Plan including meeting our obligation to buy back equity shareholding from the Financial Creditors at their option. In this connection, we further submit as under:
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a) SRA is a Non-Banking Financial Company registered with the Reserve Bank of India. Our Company is also Sponsor of an Asset Reconstruction Company Namely Invent Assets Securitisation and Reconstruction Private Limited ("Invent") which handles net Asset Under Management (AUM) in excess of Rs. 3,900 Cr and has net worth of Rs. 148 Crore as on March 31, 2022. b) SRA Group had acquired assets (Principal gross outstanding) in excess of Rs. 20,000 crores and by focusing on Medium and Small enterprises, we are already amongst the leading players in this segment in the country. Our Group has concluded successful turnaround and reconstruction for Companies like Garden Silk Mills Ltd, Kiri Industries Ltd, etc. c) SRA's robust team of professionals is widely acknowledged for its experience in debt/business restructuring as well as strong executional capabilities. We identify case-specific appropriate resolution strategy to unlock maximum value from financially stressed or distressed companies for the benefit of all stake holders. Our primary focus has been on the revival and turnaround of potentially viable industrial enterprises. d) We have successfully managed to drive growth of our group companies by infusion of capital for their businesses as and when required. Our future plans include further expansion beyond the current sectoral verticals. e) Needless to add, considering our core competence as a credible regulated financial institution, we will have the ability to meet all our
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obligations through our own internal resources including future earnings apart from our financial standing to be able to raise requisite external funds, as may be required including to fully honor our commitments in the event Financial Creditors opt to exercise the said buy-back option. f) It is also to be noted that as per our Resolution Plan, the Financial Creditors shall own the controlling stake with 74% equity shareholding in the Corporate Debtor and shall not only control and monitor but will also avail the benefit of future growth and development plans of the Company. With significant controlling majority shareholding in the Corporate Debtor, the Financial Creditors will have the ability to take all decisions. We as SRA are committed to abide by the decisions of the COC and implement the Resolution Plan in letter and spirit.
-
It is stated by the applicant that after a discussion between the CoC members, the CoC asked the RP to put forth a Resolution authorizing the RP to amend RFRP (Request for Resolution Plan) and to include substitution/replacement of the Resolution Applicant. The RP put forth the Resolution for voting by mail on 20.10.2023 to the COC members. The Resolution was passed by 100% assent. Copy of the Resolutions passed
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through email is placed at "ANNEXURE-D" of the said affidavit. 42. The RP has filed updated Form-H under inward Diary No. D-4643 dated 24.11.2023. A perusal of the Form-H reveals that the Fair Value of the Corporate Debtor is Rs. 1048,89,00,000/- and the Liquidation Value is Rs.255,58,00,000/-. It is also seen that total 30 CoC meetings were held in the matter. 43. The distribution of the various amounts under the Resolution Plan is provided in the Form-H, which is reproduced below: -
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-
The compliances of the Resolution Plan are stated to be as under: -
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The interest of existing shareholders has been altered by the Resolution Plan as under:
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Relief and Concession: Sr. No. Particulars Concessions / Reliefs / Directions sought Orders thereon 1 A reasonable period of time and Waiving/Cancelli ng of fees, cost or any other amount prior NCLT approval date by Govt. Authorities.
The relevant Governmental Authorities will provide a reasonable period of time alter the NCLT Approval Date (as available under applicable laws or 12 (Twelve) months following the NCLT Approval Date, whichever is longer) in order for the Resolution Applicant to assess the status of licenses and approvals required by the Company and to procure that the Company applies for the same and for regularizing any non- compliances under the Applicable Law existing prior to the NCLT Approval Date. Further, at the time of renewal or fresh application for licenses and approvals, the Governmental Authorities will not charge any fee, cost, Interest, penalty, fine or any other amount in the same nature pertaining to the period prior to the NCLT Approval Date and such amounts, if any, due shall have been waived off
Granted in terms of objective of clean slate principle.
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or cancelled and the Resolution Applicant shall not be liable to pay any such amounts at the time of renewal or fresh application for licenses and approvals.
2 Exemption from taxes. The Central Board of Direct Taxes shall grant an exemption to the Company from the requirement of amounts in respect of taxes (including TDS) being withheld from payments made to the Company for a period of 1 (One) year from the NCLT Approval Date.
This is for respective authorities to grant in view of object of IBC, 2016 3 Annual General Meeting Registrar of Companies, Ministry of Corporate Affairs, and/or the NCLT to grant approval for holding annual general meeting of the Company
Granted 4 Reconstitution of Board of Directors of the Company Registrar of companies to take on record such appointments and resignations of directors of the Company
Granted 5 Reduction/cancell ation of shares Ministry of Corporate Affairs and NCLT shall permit the extinguishment of existing Shareholding in the manner contemplated in this Plan, by exempting compliance with the
Granted
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requirements set out in Companies Act, 2013. 6 Levy of stamp duty and fees The Department of Registration and Stamps of the relevant states and the Ministry of Corporate Affairs shall exempt the Resolution Applicant and the Company, from the levy of stamp duty and fees applicable in relation to this Plan and their Implementation.
Granted 7 Relief, Concession, or Dispensation for the implementation of the transactions contemplated under the Plan. All Governmental Authorities shall grant any relief, concession, or dispensation as may be required for implementation of the transactions contemplated under the Plan in accordance with its terms and conditions including any stamp duty payable in respect of any documents executed in relation to such transactions.
Granted as per
Clause (6)
above.
8
Prior approval of
the counterparties
shall
not
be
required
to
be
obtained
for
change in control
/constitution
of
the Company
Pursuant to the terms of this
Plan and such counterparties:
(i) shall waive all objections /
liabilities
of
the
Company
arising out of the initiation of
corporate
insolvency
resolution/bankruptcy
proceedings
involving
the
Company, appointment of the
Resolution Professional and in
Granted
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respect of the Implementation of this Plan; (ii) shall waive the right to suspend these agreements due to any previous delays / failures by the Company to make payments under such agreements; and (iii) shall not terminate the relevant agreements or take any adverse actions against the Company. 9 Resolution Applicant submitting an undertaking in the manner required by Appendix 5 of the Request for Resolution Plan (RFRP) The submission of this Plan shall not in any manner prejudice or affect the ability of the Resolution Applicant (or its affiliates) to be a 'resolution applicant' under the IBC in respect of any other person or in respect of any other corporate insolvency resolution process under the IBC.
Granted 10 Termination of previous agreements and arrangements All agreements/ arrangements between the Company and the persons currently classified as promoter or promoter group (including the Existing Promoter Group). persons acting in concert with promoters, holding companies, subsidiary companies, associate companies, group companies, and/or their
Granted
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respective affiliates/associates, including without limitation the agreements forming a part of the data uploaded in the data room by the Resolution Professional, except the business contracts/agreements which provides the business continuation, shall stand terminated, with no Liability to the Company (including but not limited to with regard to any previous breaches). However, it is clarified that all claims of the Company against such Related Parties (and all Liabilities of such Related Parties towards the Company) shall remain outstanding. Due and payable in accordance with their terms.
11 Any amendments are notified or exemptions are granted before the NCLT Approval Date The Resolution Applicant shall be entitled to avail the benefits of such amendments or exemptions, provided that it shall not affect the proposed treatment of any stakeholders as of the date of this Plan. Including in particular: (i) if the RBI permits assignment to residents, of debts owed by corporate debtors to non-
This is for respective authorities to grant in view of object of IBC, 2016
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resident creditors, in terms of resolution plans under the IBC, then this Plan shall be deemed to be amended to the extent that the debts owed by the Company to non-resident creditors will be assigned to RA (without payment of additional amounts as consideration for such assignment). 12 Regularize all the loan accounts of the Company The Financial Creditors of the Company shall regularize all the loan accounts of the Company and shall ensure that the assets classification of such loan accounts is "standard" in their books with effect from the Closing Date.
Granted 13 Withdraw all legal proceedings commenced against the Company for the period prior to NCLT Approval Date All creditors (including the Financial Creditors) of the Company shall withdraw all legal proceedings commenced against the Company for the period prior to NCLT Approval Date, in relation to Claims including proceedings under Section a Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and Recovery of Debt and Bankruptcy Act, 1993 and shall
Granted
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get all criminal proceedings quashed, including proceedings under Section 138 of the Negotiable Instruments Act. 1881 immediately after the NCLT Approval Date. 14 Waived all the procedural requirements in terms of Section 66, Section 42 and other provisions of Companies Act 2013, the NCLT (Procedure for Reduction of Share Capital) Rules, 2016 The approval of this Plan by the NCLT shall be deemed to have waived all the procedural requirements in terms of Section 66, Section 42 and other provisions of Companies Act 2013, the NCLT (Procedure for Reduction of Share Capital) Rules, 2016, and under any other Applicable Laws for extinguishment of existing share capital by way of reduction of share capital and issuance of equity shares to Resolution Applicant.
Granted 15 No initiation of Investigation, actions or proceedings against RA. The relevant Governmental Authorities shall not initiate any investigations, actions or proceedings against the Resolution Applicant or the new management (upon acquisition of the Company) including the board of directors, in relation to any non-compliance with Applicable Laws by the Company pertaining to any
Granted as per Section 32A of IBC, 2016
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period up to NCLT Approval Date. 16 Liability which may occur due to the conduct of Ex- Management. The Resolution Applicant assumes that, in compliance with its duties under Regulation 35A of the CIRP Regulations, the Resolution Professional had determined whether the Company has been subjected to any transactions covered under sections 43, 45, 50 or 66 of the IBC or not and applied to the Adjudicating Authority for seeking appropriate relief. Accordingly, though the Resolution Applicant reserve its right to institute any investigation pertaining to any transaction(s) carried out by the ex-management of the Company or to file appropriate applications before the court/tribunal of competent jurisdiction, the Resolution Applicant and its officers, directors, employees and the new management of the Company shall never be liable/responsible for any such transactions carried out by the ex-management of the Company. And in the event,
Only application filed till date of approval of this Plan will be considered in terms of the approval of the CoC.
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any application filed by the
Resolution Professional under
Section 43 to 51 or 66 of the
IBC, continues even after NCLT
Approval Date, then the related
costs shall be paid from the
cash flows of the Company. In
case, there are no sufficient
cash flows in the Corporate
Debtor, then the Resolution
Applicant shall contribute to the
remaining
costs
amount
payable in relation to the legal
proceedings.
It
is
further
clarified that, the proceeds
arising
out
of
the
aforementioned litigations shall
be to the sole benefit of the
Corporate
Debtor/Resolution
Applicant and the COC or any
other Creditor will not have any
right over such proceeds.
17
All assets of the
company
to
remain
vested
with the company
All assets (including properties,
whether freehold, leasehold, or
license basis) of the Company
shall continue to remain vested
in the Company free and clear
from all encumbrances, except
such
charges
and
encumbrances, which will be
created pursuant to the terms of
this Resolution Plan.
Granted
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- The IA 44No.755 of 2021 is filed under section 43,44,45,50, and 66 of IBC, 2016 is pending before this Hon’ble Tribunal. In view of the clause 9.1.16 of the Modified Resolution Plan filed vide Additional Affidavit dated 05.06.2023 under Diary No. D1973 I is seen that in the event of any application filed by the Resolution Professional under section 43 to 51 & 66 of the IBC, 18 All domain names, servers available for the use of the Company All domain names, servers, being currently used by the Company to the extent not owned shall continue to be available for use by the Company for a period of 6 months from the NCLT Approval Date.
Granted
19 Relief from payment of stamp duty and applicable fees Ministry of Corporate Affairs/Registrar of Companies, to grant relief from payment of stamp duty and applicable fees (including fees payable to the jurisdictional Registrar of Companies) for extinguishment of existing shares, any increase in authorised share capital, issuance of shares in terms of this Resolution Plan.
Denied
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continues even after the approval date given by this
Tribunal, then the related costs shall be paid from the
cash flows of the Company. It is further clarified that, the
proceeds arising out of the aforementioned litigations
shall
be
to
the
sole
benefit
of
the
Corporate
Debtor/Resolution Applicant and the CoC or any other
Creditor will not have any right over such proceeds.
48. The Resolution Plan provides for the replacement of
exiting Board of Corporate Debtor by Investors nominees
on the Board to manage the Company. Investor shall
identify and appoint a suitable professional to manage
the affairs of the company on a day-to-day basis, with the
support of key managerial personnel of the company and
with guidance from the Board of Directors.
49. The Implementation and Monitoring Committee shall
supervise the implementation of the Resolution Plan with
the help of the newly constituted board till the
implementation of the proposed transaction under the
Resolution Plan i.e. payment of the committed cash
payment amount to the Secured Financial Creditor
(Lenders). The Committee shall include a total of 3
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members comprising of One from CoC member, having
the
most
Shares,
One
from
Resolution
Applicant/Representative of Resolution Applicant, and
Resolution Professional. The Resolution Professional
shall be the Chairperson of the IMC and his fee be decided
in consultation with the members of the IMC.
50. ANALYSIS AND FINDINGS OF THIS TRIBUNAL
I.
It is seen from Form – H that the Liquidation value of
the
Corporate
Debtor
is
arrived
at
Rs.2,55,58,00,000/- and the corresponding Fair
value is arrived at Rs.10,48,89,00,000/- The
Resolution
Plan
is
for
an
amount
of
Rs.5,49,50,00,000/-.
II.
Further, it is seen from Form – H, that presently
Application under 66 of IBC, 2016 in the present
matter is pending on the file of this Tribunal.
III.
Our attention was also drawn to the judgment by the
Hon’ble NCLAT in the matter of “Puissant Towers
India Pvt. Ltd. vs. Neueon Towers Limited” (supra)
in Company Appeal (AT) (CH) (Ins) No. 181/2022
dated 12.06.2023, deem it at reproduced to para 9 to
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12 of the said order of the said judgment of Hon’ble NCLAT. 9. Without going into the aspect of whether RBI ought to be ‘impleaded’ or not, this Tribunal finds it relevant to place reliance on the submissions of the Learned Counsel regarding whether prior approval of RBI is required for participating as a Resolution Co-Applicant under the Code. It is submitted in Para 4 of the Notes of Submissions that ARC does not require prior approval of RBI for participating as a Resolution Co-Applicant. The relevant Paragraph is reproduced as herein:
“It is further submitted that an ARC does not require prior approval of RBI for participating as a ‘resolution co- applicant’ under IBC provided any of the activities undertaken by the ARC as part of the resolution plan submitted by it is not prohibited under SARFAESI Act. Hence, prima facie, when an ARC is a resolution “co- applicant”, as is in the instant case, RBI’s prior approval is not always required. Thus, there is no need to make RBI a party in the present appeal.”
-
It is significant to mention that Section 238 of the Code, will prevail over any of the provisions of the SARFAESI Act, 2002, if it is inconsistent with any of the Provisions of the ‘I&B Code, 2016’ and therefore the Adjudicating Authority ought not to have placed reliance on Section 10(2) of the SARFAESI Act, 2002. It is also pertinent to mention that the CoC has approved the Resolution Plan by the majority of 98.70% in its 27th meeting, held on 19/10/2020. The Hon’ble Supreme Court in a IBC Laws| www.ibclaw.in 25.10.23 Page: 6
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Catena of Judgments has held that the commercial wisdom of the CoC is non-justifiable and in the instant case, we do not see any material irregularity, under Section 30(2) of the ‘IBC Code, 2016’.
- Keeping in view, the clarification given by the Counsel for RBI that the ‘prior permission’ is not required, this ‘Tribunal’ is of the considered view that the Adjudicating Authority ought not to have rejected the Resolution Plan, more so, when the principal objective of the Code is that ‘revival of the Corporate Debtor and Resolution’. Liquidation ought to be the last resort, keeping in view the scope and spirit of the Code. 12. For all the aforenoted reasons, this Company Appeal (AT) (CH) (Ins) No. 181/2022 is allowed and the Order of the Adjudicating Authority directing ‘Liquidation’ is set aside and the matter is remanded to the Adjudicating Authority for approval of the Resolution Plan under Section 31(1) of the IBC Code, 2016. As precious time has lapsed and the IA is of the year 2020, it is hoped and requested that the Adjudicating Authority shall decide the matter of approval of Resolution Plan within ‘one week’ from the date of this Order. All parties shall appear before the Adjudicating Authority on 14/06/2023. No further ‘Notice’ is required in this matter. Connected pending Interlocutory Applications, if any, are ‘closed’.
IV. In the present matter the liquidation value of the Corporate Debtor is Rs. 2,55,58,00,000/- and the approved resolution plan provides for payment of Rs.5,49,50,00,000/-. The liquidation value is higher
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as compared to approved plan value. Therefore, this Adjudicating Authority relies on the decision in the matter of Maharastra Seamless Limited Vs. Padmanabhan Venkatesh & Ors. (Civil Appeal No. 4242 of 2019) wherein in para 26 it is held as follows: “26. No provision in the Code or Regulations has been brought to our notice under which the bid of any Resolution Applicant has to match liquidation value arrived at in the manner provided in Clause 35 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.”
V. In so far as the approval of the Resolution Plan is concerned, this Authority is convinced on the decision of the Committee of Creditors, following the Judgment of Hon’ble Supreme Court in the matter of K. Sashidhar –Vs– Indian Overseas Bank (2019) 12 SCC 150, wherein in para 19 and 62 it is held as follows; “19…….In the present case, however, our focus must be on the dispensation governing the process of approval or rejection of resolution plan by the CoC. The CoC is called upon to consider the resolution plan under Section 30(4) of the I&B Code after it is verified and vetted by the resolution professional as being compliant with all the statutory requirements specified in Section 30(2).
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………In the present case, however, we are concerned with the provisions of I&B Code dealing with the resolution process. The dispensation provided in the I&B Code is entirely different. In terms of Section 30 of the I&B Code, the decision is taken collectively after due negotiations between the financial creditors who are constituents of the CoC and they express their opinion on the proposed resolution plan in the form of votes, as per their voting share. In the meeting of the CoC, the proposed resolution plan is placed for discussion and after full interaction in the presence of all concerned and the Resolution Professional, the constituents of the CoC finally proceed to exercise their option (business/commercial decision) to approve or not to approve the proposed resolution plan. In such a case, non- recording of reasons would not per-se vitiate the collective decision of the financial creditors. The legislature has not envisaged challenge to the “commercial/business decision” of the financial creditors taken collectively or for that matter their individual opinion, as the case may be, on this count.”
VI. Further, the Hon’ble Supreme Court of India in the matter of Committee of Creditors of Essar Steels – Vs– Satish Kumar Gupta & Ors. in Civil Appeal No. 8766 – 67 of 2019 at para 42 has held as follows; 42. ………Thus, it is clear that the limited judicial review available, which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors, has to be within the four corners of Section 30(2) of the Code, insofar as the Adjudicating Authority is concerned, and Section 32 read with Section 61(3) of the Code, insofar as the Appellate Tribunal is concerned, the parameters of such review having been clearly laid down in K. Sashidhar (supra).
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VII. Further the Supreme Court in the matter of K. Sashidhar v. Indian Overseas Bank and Ors. (2019) 12 SCC 150 has lucidly delineated the scope and interference of the Adjudicating Authority in the process of approval of the Resolution Plan and held as follows; “55. Whereas, the discretion of the adjudicating authority (NCLT) is circumscribed by Section 31 limited to scrutiny of the resolution plan “as approved” by the requisite per cent of voting share of financial creditors. Even in that enquiry, the grounds on which the adjudicating authority can reject the resolution plan is in reference to matters specified in Section 30(2), when the resolution plan does not conform to the stated requirements. Reverting to Section 30(2), the enquiry to be done is in respect of whether the resolution plan provides: (i) the payment of insolvency resolution process costs in a specified manner in priority to the repayment of other debts of the corporate debtor, (ii) the repayment of the debts of operational creditors in prescribed manner, (iii) the management of the affairs of the corporate debtor, (iv) the implementation and supervision of the resolution plan, (v) does not contravene any of the provisions of the law for the time being in force, (vi) conforms to such other requirements as may be specified by the Board. The Board referred to is established under Section 188 of the I&B Code. The powers and functions of the Board have been delineated in Section 196 of the I&B Code. None of the specified functions of the Board, directly or indirectly, pertain to regulating the manner in which the financial creditors ought to or ought not to exercise their commercial wisdom during the voting on the resolution plan under Section 30(4) of the I&B Code. The subjective satisfaction of the financial creditors at the time of voting
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is bound to be a mixed baggage of variety of factors. To wit, the feasibility and viability of the proposed resolution plan and including their perceptions about the general capability of the resolution applicant to translate the projected plan into a reality. The resolution applicant may have given projections backed by normative data but still in the opinion of the dissenting financial creditors, it would not be free from being speculative. These aspects are completely within the domain of the financial creditors who are called upon to vote on the resolution plan under Section 30(4) of the I&B Code.
- Indubitably, the inquiry in such an appeal would be limited to the
power exercisable by the resolution professional under Section 30(2)
of the I&B Code or, at best, by the adjudicating authority (NCLT)
under Section 31(2) read with Section 31(1) of the I&B Code. No
other inquiry would be permissible. Further, the jurisdiction bestowed
upon
the
appellate
authority
(NCLAT)
is
also
expressly
circumscribed. It can examine the challenge only in relation to the
grounds specified in Section 61(3) of the I&B Code, which is limited
to matters “other than” enquiry into the autonomy or commercial
wisdom of the dissenting financial creditors. Thus, the prescribed
authorities (NCLT/NCLAT) have been endowed with limited
jurisdiction as specified in the I&B Code and not to act as a court of
equity or exercise plenary powers.”
(emphasis supplied)
VIII. Also, the Supreme Court of India in the matter of Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta and Ors. (2020) 8 SCC 531 after referring to the decision in K. Sashidhar (supra) has held as follows;
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“73. There is no doubt whatsoever that the ultimate discretion of what to pay and how much to pay each class or sub-class of creditors is with the Committee of Creditors, but, the decision of such Committee must reflect the fact that it has taken into account maximising the value of the assets of the corporate debtor and the fact that it has adequately balanced the interests of all stakeholders including operational creditors. This being the case, judicial review of the Adjudicating Authority that the resolution plan as approved by the Committee of Creditors has met the requirements referred to in Section 30(2) would include judicial review that is mentioned in Section 30(2)(e), as the provisions of the Code are also provisions of law for the time being in force. Thus, while the Adjudicating Authority cannot interfere on merits with the commercial decision taken by the Committee of Creditors, the limited judicial review available is to see that the Committee of Creditors has taken into account the fact that the corporate debtor needs to keep going as a going concern during the insolvency resolution process; that it needs to maximise the value of its assets; and that the interests of all stakeholders including operational creditors has been taken care of. If the Adjudicating Authority finds, on a given set of facts, that the aforesaid parameters have not been kept in view, it may send a resolution plan back to the Committee of Creditors to re-submit such plan after satisfying the aforesaid parameters. The reasons given by the Committee of Creditors while approving a resolution plan may thus be looked at by the Adjudicating Authority only from this point of view, and once it is satisfied that the Committee of Creditors has paid attention to these key features, it must then pass the resolution plan, other things being equal.” (emphasis supplied)
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IX.
The Supreme Court in its recent decision in Jaypee
Kensington
Boulevard
Apartments
Welfare
Association & Ors. v. NBCC (India) Ltd. & Ors. in
Civil Appeal no. 3395 of 2020 dated 24.03.2021 has
held as follows;
76. The expositions aforesaid make it clear that the decision
as to whether corporate debtor should continue as a going
concern or should be liquidated is essentially a business
decision; and in the scheme of IBC, this decision has been left
to the Committee of Creditors, comprising of the financial
creditors. Differently put, in regard to the insolvency resolution,
the decision as to whether a particular resolution plan is to be
accepted or not is ultimately in the hands of the Committee of
Creditors; and even in such a decision making process, a
resolution plan cannot be taken as approved if the same is not
approved by votes of at least 66% of the voting share of
financial creditors. Thus, broadly put, a resolution plan is
approved only when the collective commercial wisdom of the
financial creditors, having at least 2/3rd majority of voting
share in the Committee of Creditors, stands in its favour.
77. In the scheme of IBC, where approval of resolution plan is
exclusively in the domain of the commercial wisdom of CoC,
the scope of judicial review is correspondingly circumscribed
by the provisions contained in Section 31 as regards approval
of the Adjudicating Authority and in Section 32 read with
Section 61 as regards the scope of appeal against the order
of approval.
77.1. Such limitations on judicial review have been duly
underscored by this Court in the decisions above-referred,
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where it has been laid down in explicit terms that the powers of the Adjudicating Authority dealing with the resolution plan do not extend to examine the correctness or otherwise of the commercial wisdom exercised by the CoC. The limited judicial review available to Adjudicating Authority lies within the four corners of Section 30(2) of the Code, which would essentially be to examine that the resolution plan does not contravene any of the provisions of law for the time being in force, it conforms to such other requirements as may be specified by the Board, and it provides for: (a) payment of insolvency resolution process costs in priority; (b) payment of debts of operational creditors; (c) payment of debts of dissenting financial creditors; (d) for management of affairs of corporate debtor after approval of the resolution plan; and (e) implementation and supervision of the resolution plan.
77.2. The limitations on the scope of judicial review are reinforced by the limited ground provided for an appeal against an order approving a resolution plan, namely, if the plan is in contravention of the provisions of any law for the time being in force; or there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resolution period; or the debts owed to the operational creditors have not been provided for; or the insolvency resolution process costs have not been provided for repayment in priority; or the resolution plan does not comply with any other criteria specified by the Board
77.6.1. The assessment about maximisation of the value of assets, in the scheme of the Code, would always be subjective in nature and the question, as to whether a particular resolution plan and its propositions are leading to maximisation of value of assets or not, would be the matter of
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enquiry and assessment of the Committee of Creditors alone. When the Committee of Creditors takes the decision in its commercial wisdom and by the requisite majority; and there is no valid reason in law to question the decision so taken by the Committee of Creditors, the adjudicatory process, whether by the Adjudicating Authority or the Appellate Authority, cannot enter into any quantitative analysis to adjudge as to whether the prescription of the resolution plan results in maximisation of the value of assets or not. The generalised submissions and objections made in relation to this aspect of value maximisation do not, by themselves, make out a case of interference in the decision taken by the Committee of Creditors in its commercial wisdom
-
To put in a nutshell, the Adjudicating Authority has limited jurisdiction in the matter of approval of a resolution plan, which is well defined and circumscribed by Sections 30(2) and 31 of the Code read with the parameters delineated by this Court in the decisions above referred. The jurisdiction of the Appellate Authority is also circumscribed by the limited grounds of appeal provided in Section 61 of the Code. In the adjudicatory process concerning a resolution plan under IBC, there is no scope for interference with the commercial aspects of the decision of the CoC; and there is no scope for substituting any commercial term of the resolution plan approved by the CoC. Within its limited jurisdiction, if the Adjudicating Authority or the Appellate Authority, as the case may be, would find any shortcoming in the resolution plan vis-à-vis the specified parameters, it would only send the resolution plan back to the Committee of Creditors, for re-submission after satisfying the parameters delineated by Code and exposited by this Court.
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X.
The Hon’ble Supreme Court in the case of
Ramkrishna
Forgings
Limited
vs.
Ravindra
Loonkar, Resolution Professional of ACIL Limited
& Anr in Civil Appeal No. 1527 of 2022 also has
reiterated that CoC wisdom is supreme.
XI.
In consideration of all judgments of Hon’ble Supreme
Court, this Tribunal has referred the matters back to
the CoC for deciding the various commercial aspects
which in terms of the above judgment are the sole
discretion of the CoC. The CoC with requisite majority
has approved the various amendments to the plan
and has ultimately voted in the 30th CoC meeting for
the approval of the plan with requisite majority.
XII.
Thus, from the catena of judgments rendered by the
Supreme Court on the scope of approval of the
Resolution Plan, it is amply made clear that only
limited
judicial
review
is
available
for
the
Adjudicating Authority under Section 30(2) and
Section 31 of IBC, 2016 and this Adjudicating
Authority cannot venture into the commercial
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aspects of the decisions taken by the Committee of
Creditors.
XIII.
On hearing the submissions made by the Ld. Counsel
for the Resolution Professional, and perusing the
record, we find that the Resolution Plan has been
approved with 100% voting share. As per the CoC,
the plan meets the requirement of being viable and
feasible for the revival of the Corporate Debtor. By
and large, all the compliances have been done by the
RP and the Resolution Applicant for making the plan
effective after approval by this Bench. On perusal of
the documents on record, we are also satisfied that
the Resolution Plan is in accordance with sections 30
and 31 of the IBC and also complies with regulations
38 and 39 of the IBBI (Insolvency Resolution Process
for Corporate Persons) Regulations, 2016.
XIV.
As far as the question of granting time to comply with
the statutory obligations/seeking sanctions from
governmental
authorities
is
concerned,
the
Resolution Applicant is directed to do the same
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within one year as prescribed under section 31(4) of
the Code.
XV.
The Resolution Plan in question is hereby approved
by this Adjudicating Authority, subject to the
observations made in this order. The Resolution Plan
shall form part of this Order. The Resolution Plan is
binding on the Corporate Debtor and other
stakeholders.
XVI.
The Resolution Applicant is directed to make
payment of the entire Resolution Plan amount within
the time period stipulated under the Resolution Plan,
failing which the entire amount paid by the
Resolution Applicant (including the Performance Bank
Guarantee) as on the said date would stand
automatically forfeited, without any recourse to this
Tribunal.
XVII.
Certified copy of this Order be issued on demand to
the concerned parties, upon due compliance.
XVIII.
Liberty is hereby granted for moving any Application
if required in connection with the implementation of
this Resolution Plan.
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XIX. A copy of this Order is to be submitted to the concerned Office of the Registrar of Companies.
-
IA/764/AHM/2021 shall stand disposed of accordingly.
-
The Registry is directed to send e-mail copies of the order forthwith to all the parties and their Learned Counsel for information and for taking necessary steps. Files be consigned to the record.
-SD-
-SD- SAMEER KAKAR
SHAMMI KHAN MEMBER (TECHNICAL) MEMBER (JUDICIAL)
Shubhanshu/Rajeev
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