10th July, 2024 Approval of Resolution Plan - Nyka Steels Private Limited [IA-30-2024 in CP (IB)-1009-MB-IV-2020] (1.1 MB)
IN THE NATIONAL COMPANY LAW TRIBUNAL
MUMBAI BENCH-IV
IA-30/2024
Under Section 30(6) of Insolvency &
Bankruptcy Code, 2016
Mr. Avil Menezes
Resolution Professional/
…Applicant
In the matter of
CP (IB) No.1009/MB/C-IV/2020
AJS Impex Private Limited
…Operational Creditor
Vs.
Nyka Steels Private Limited
…Corporate Debtor
Order Pronounced on: 27.06.2024
Coram:
Ms. Anu Jagmohan Singh
Mr. Kishore Vemulapalli
Hon’ble Member (Technical)
Hon’ble Member (Judicial)
For the Applicant/RP : Mr. Nausher Kohli a/w Mr. Rakesh Gupta, Learned Counsel present.
ORDER
This Application has been filed on 26.02.2024 by the Resolution Professional under Section 30(6) of the Insolvency and Bankruptcy Code, 2016 on behalf of the Committee of Creditors seeking approval of the Resolution Plan submitted by the Successful Resolution Applicant and approved by 100% of the voting share of the members of the Committee of Creditors
NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH-IV IA-30/2024
IN CP (IB)/1009/MB-IV/2020
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(hereinafter referred to as ‘CoC’) of the Corporate Debtor viz.
Nyka Steels Private Limited (hereinafter referred to as
‘Corporate Debtor’).
2.
The brief facts of the Application are as follows:
2.1
Corporate Insolvency Resolution Process (CIRP) of the
Corporate Debtor was initiated vide an order dated
03.02.2023 of this Court in C.P.(IB)-1009(MB)/2020 on
an application filed by AJS Impex Private Limited
(Operational Creditor) under Section 9 of the Insolvency
and Bankruptcy Code 2016. Mr. Hitesh Kothari (Reg.
No.: IBBI/IPA-002/IP-N00324/2017-2018/10929 was
appointed as Interim Resolution Professional (IRP). The
Erstwhile IRP made a public announcement in the
newspapers (in Mumbai) in Form-A on 10.02.2023
inviting claims from the creditors, workers/employees of
the Corporate Debtor and from government bodies. IRP
constituted the Committee of Creditors (CoC) based on
the claims received by him and the first meeting of the
CoC held on 09.03.2023. The second meeting of the CoC
was held on 13.04.2023 wherein the resolution was
passed for appointment of Mr. Avil Menezes as the
Resolution Professional of the Corporate Debtor and the
same was allowed vide an order of this Tribunal dated
12.05.2023.
2.2
Form G was published on 21.06.2023 and the last date
for submission of the resolution plan was 04.09.2023
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which was extended by CoC till 03.10.2023. The following Application for seeking extension under section 12(2) was filed and sought: Sr. No. Order Dated Extension Granted Period 1. 21.07.2023 90 Days 03.08.2023- 31.10.2023 2. 06.11.2023 45 Days 01.11.2023- 15.12.2023 3. 12.03.2024 74 Days 16.12.2023- 28.02.2024 (Last date of CIRP)
2.3
The Applicant submits that there were 15 Expression of
Interest’s received from Prospective Resolution Applicant
(PRAs) out of which 2 PRAs has submitted the Resolution
Plan i.e. DM Metalloys Private Limited and Lalita Santosh
Powle in Consortium with Pravesh Seafood Private
Limited.
2.4
The Resolution Plan submitted by the Resolution
Applicant viz. Lalita Santosh Powle in Consortium with
Pravesh Seafood Private Limited was approved by the
CoC in the 10th meeting held on 04.01.2024 and the
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same was put for e-voting which concluded on
09.02.2024, approving the Resolution Plan submitted by
Lalita Santosh Powle in Consortium with Pravesh
Seafood Private Limited unanimously with 100%
voting. The resolution is reproduced below -
“Resolved that, the Revised Resolution Plan dated
20.12.2023 and the addendum to resolution plan
dated 04.01.2024 submitted by Lalita Santosh
Powle in Consortium with Pravesh Seafood Private
Limited is hereby approved by the Committee of
Creditors of the Nyka Steels Private Limited
pursuant to Section 30(4) of the Insolvency and
Bankruptcy
Code,2016
and
the
rules
and
regulations thereunder.”
2.5
The Applicant issued Letter of Intent dated 10.02.2024 to the
Resolution Applicant. It is submitted that the Successful
Resolution Applicant has provided the required Performance
Security as under:
Date
Amount
UTR
04.09.2023 INR
25,00,000
CBIN0280624(2023090410002479)
14.02.2024 INR
1,00,00,000
CBIN0280624 (RTGS)
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15.02.2024 INR 37,20,000 CBIN0280624 (RTGS)
2.6 Therefore, RP states that the Resolution Plan approved by the CoC is in compliance with the requirements of Section 30(2) of the Code. In compliance of Section 30(2) of IBC, 2016, the Resolution Professional has examined the Resolution plan of the Successful Resolution Applicant and confirms that this Resolution Plan: a. Provides for payment of Insolvency Resolution Process cost in a manner specified by the Board in the priority to the payment of other debts of the corporate debtor; b. Provides for management of the affairs of the Corporate Debtor after approval of Resolution Plan; c. The implementation and supervision of Resolution Plan; d. Does not prima facie contravene any of the provisions of the law for time being in force, e. Conforms to such other requirements as may be specified by the Board. f. As per the Affidavit received and the further documents submitted, the Resolution applicants are not covered under 29A.
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2.7 In compliance of Regulation 38 of CIRP Regulations, the Resolution Professional confirms that the Resolution plan provides that: i. The amount due to the Operational Creditors under resolution plan shall be given priority in payment over Financial Creditors. ii. It has dealt with the interest of all Stakeholders including Financial Creditors and Operational Creditors of the CD. iii. A statement that neither the Resolution Applicants nor any related parties have failed to implement nor have contributed to the failure of implementation of any other Resolution Plan approved by the AA in the past. iv. The terms of the plan and its implementation schedule. v. The management and control of the business of the CD during its term. vi. Adequate means of Supervising its implementation. vii. The Resolution Plan Demonstrates that it addresses a. The cause of the Default b. It is feasible and viable c. Provision for effective implementation d. Provisions for approvals required and the time lines for the same. e. Capability to Implement the Resolution Plan
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2.8 The Resolution Applicant viz. Lalita Santosh Powle in Consortium with Pravesh Seafood Private Limited i.e. Mrs. Lalita Powle is proprietor of Sanlita Exports having specialization in the area of overall management supervision and corporate social responsibilities. She handles local trading activities of Groundnuts, Corainder Seeds, Sesame Seeds, Shrimps and Fishes and Pravesh Seafood Private Limited, consortium member, having registered office at 415,4th Floor, Silver Spring, Opp MIDC Office, MIDC Taloja, Dist. Raigad, State Maharashtra. The Company commenced the operations in the year 2014-15, as Merchant Exporter registered under MPEDA for processing and Exports of Marine products. The Resolution Applicant confirmed that it is eligible to submit Resolution Plan as per Section 29A of Insolvency and Bankruptcy Code. 2.9 The Resolution Applicant has confirmed that - i. its connected persons are not convicted for any offence during the preceding five years and no criminal proceedings are pending against any person. ii. not disqualified under Companies Act, 2013 to act as a Director.
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iii. not identified as a willful defaulter by any bank of financial institution or consortium thereof in accordance with the guidelines of the Reserve Bank of India. iv. not debarred from accessing to, or trading in securities markets under any order or directions of the Securities and Exchange Board of India. 2.10 As per the RP the Fair Value and Liquidation Value determined by the registered Valuer are as follows: Fair Value
Rs. 8,98,38,422/-
Liquidation Value
Rs. 6,83,84,524/- 3. Resolution Plan for the Corporate Debtor (the key features of the Resolution Plan submitted by Lalita Santosh Powle in Consortium with Pravesh Seafood Private Limited is summarized below): 3.1 The value of the said Resolution Plan is Rs. 8,11,00,000/- which includes the payments towards the CIRP cost, payment to Secured Financial Creditors, and the summary of payment is enumerated below: Sr. No Particulars Amount (Rs) Terms of Payment 1 Corporate Insolvency Resolution Process Cost 20,00,000/- At Actuals, within 120 days from effective date
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2
Payment
to
Secured
Financial Creditor
7,91,00,000/-
Within 120 days
from effective date
(Interest on delay
payments after 75
days at MCLR)
5
Payment
to
the
Operational
Creditor
(other
than
Workmen/employees
and other Statutory dues)
NIL
Settlement at 0%
Total 8,11,00,000/-
- It is submitted that there is an application pending apropos certain fraudulent transaction under section 66 of the code, as duly mentioned in Form H Hereto. It is submitted that clause 9.1 of the Resolution Plan provides that “Any monies received pursuant to exercise of powers and obligations by the Resolution Professional under Sections 43 to 51 (both inclusive) and Section 66 of the IBC, shall be vested in the Secured Financial Creditor. However, we have not been provided details of any transactions falling above referred sections. It is clarified that upon successful implementation of Resolution Plan and discharge of the Resolution Professional any application filed by the Resolution Professional under Section 43 to 51 & 66 of the Code shall be pursued by the Secured Financial Creditor directly and all cost and benefits to this account shall accrue to Secured Financial Creditor. The Secured Financial
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Creditor shall be entitled to make suitable applications with
the Hon’ble NCLT to enable them to pursue the said
application and subsequent recoveries if any”.
5.
It is submitted by the Applicant in the Resolution Plan
that a monitoring Committee shall be constituted within a
period of 7 days from effective Date for a period from the
Effective Date till the Transfer Date to oversee the
implementation of the Resolution Plan. The Monitoring
Committee shall comprise of the following members:
a. One
authorized
representative
appointed
by
members of the Committee of Creditors of the
Corporate Debtor.
b. One
authorized
representative
of
Resolution
Applicant; and
c. Monitoring Agent- Erstwhile Resolution Professional.
6.
Ld. Counsel for the Resolution Professional has annexed a
certificate of the Form-H to the Application under Regulation
39(4) In Form-H of the CIRP Regulations, 2016 to certify that the
Resolution Plan has approved by the CoC meets all the
requirements of the IBC and its Regulations.
REVISED FORM H
COMPLIANCE CERTIFICATE
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(Under Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016
I, Avil Menezes, an insolvency professional enrolled with The Indian Institute of Insolvency Professional of ICAI and registered with the Board with registration number IBBI/IPA-001/IP-P00017/2016- 2017/10041, am the resolution professional for the corporate insolvency resolution process (CIRP) of Nyka Steels Private Limited.
- The details of the CIRP are as under:
Sl.
No.
Particulars
Description
1
Name of the CD
Nyka Steels Private Limited 2 Date of Initiation of CIRP 03 February 2023 3 Date of Appointment of IRP 03 February 2023 4 Date of Publication of Public Announcement 10 February 2023 (order was received by IRP on 9 February 2023) 5 Date of Constitution of CoC 06 March 2023 6 Date of First Meeting of CoC 09 March 2023 7 Date of Appointment of RP 20 May 2023 (order was passed on 12 May 2023 and was received on 20 May 2023) 8 Date of Appointment of Registered Valuers KKCA Valuers LLP & Mavent Advisors Private Limited were appointed on 22 June 2023 for
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valuation of Land &
Building, Plant &
Machinery, and
Securities and Financial
Assets.
9
Date of Issue of Invitation for
EoI
21 June 2023
10
Date of Final List of Eligible
Prospective Resolution
Applicants
18 August 2023
11
Date of Invitation of
Resolution Plan
05 August 2023
12
Last Date of Submission of
Resolution Plan
Last date for submission
of resolution plan was 4
September 2023 which
was extended by CoC till
3 October 2023.
Further pursuant to
negotiations with the
PRAs who submitted
resolution plan on or
before 03 October 2023,
CoC allowed additional
time till 20 December
2023 to submit revised
resolution plan.
13
Date of Approval of Resolution
Plan by CoC
09 February 2024
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14 Date of Filing of Resolution Plan with Adjudicating Authority 26 February 2024 15 Date of Expiry of 180 days of CIRP 02 August 2023 16 Date of Order extending the period of CIRP Application for extension of CIRP period by 90 days was filed with the Hon’ble NCLT. The Hon’ble NCLT passed the order dated 21 July 2023 and accordingly last date of CIRP was 31 October 2023.
Resolution Professional filed another application for extension of CIRP period by 60 days. The Hon’ble NCLT passed order dated 06 November 2023 and extended the CIRP by 45 days. Accordingly last date of CIRP was 15 December 2023.
Further, as approved by CoC, Resolution Professional has filed
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another application for
extension of CIRP period
by 60 days beyond 330
days. The matter was
listed on 1 January 2024
and
Hon’ble
NCLT
Mumbai bench directed
both the Committee of
Creditors
(CoC)
and
Resolution
Professional
(RP) to expedite the CIRP
proceedings
and
to
submit either Resolution
Plan approval application
or liquidation application
before the next hearing
scheduled
for
13
February
2024.
Thereafter in the hearing
held on 13 February 2024
Hon’ble Bench suggested
filing
of
consolidated
extension
application
seeking an extension of
the CIRP period till the
submission
of
the
Resolution
Plan
along
with the Plan Approval
Application
within
2
weeks from the date of the
orders and adjourned the
said matter till 12 March
2024.
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In the hearing held on 12
March 2024, Hon’ble
NCLT allowed the
extension
of
74
days
from
16.12.2023, making 28
February 2024, the last of
CIRP.
17
Date of Expiry of Extended
Period of CIRP
28 February 2024
(Application for extension
of CIRP period beyond
330 days by 60 days is
filed with the Hon’ble
NCLT. The matter was
listed on 1 January 2024
and
Hon’ble
NCLT
Mumbai bench directed
both the Committee of
Creditors
(CoC)
and
Resolution
Professional
(RP) to expedite the CIRP
proceedings
and
to
submit either Resolution
Plan approval application
or liquidation application
before the next hearing
scheduled
for
13th
February
2024,
Thereafter in the hearing
held on 13 February 2024
Hon’ble Bench suggested
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filing of consolidated extension application seeking an extension of the CIRP period till the submission of the Resolution Plan along with the Plan Approval Application within 2 weeks from the date of the orders and adjourned the said matter till 12 March 2024.
In the hearing held on 12 March 2024, Hon’ble NCLT allowed the extension of 74 days from 16.12.2023, making 28 February 2024, the last of CIRP.) 18 Fair Value
- KKCA valuers LLP INR 9,02,02,354
- Mavent Advisors Pvt. Ltd. INR 8,94,74,489
- Average Fair Value INR 8,98,38,422 19 Liquidation value
- KKCA valuers LLP INR 6,55,42,346
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-
I have examined the Resolution Plan received from Resolution Applicant Lalita Santosh Powlle in Consortium with Pravesh Seafood Private Limited and approved by Committee of Creditors (CoC) of Nyka Steels Private Limited.
-
I hereby certify that- i. the said Resolution Plan complies with all the provisions of the Insolvency and Bankruptcy Code 2016 (Code), the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations) and does not contravene any of the provisions of the law for the time being in force.
ii. the Resolution Applicant Lalita Santosh Powlle in Consortium with Pravesh Seafood Private Limited has submitted an affidavit pursuant to section 30(1) of the Code confirming its eligibility under section 29A of the Code to submit resolution plan. The contents of the said affidavit are in order.
iii. the said Resolution Plan has been approved by the CoC in accordance with the provisions of the Code and the CIRP Regulations made thereunder. The Resolution Plan has been approved by 100 % of voting share of financial creditors after considering its feasibility and viability and other requirements specified by the CIRP Regulations. 2. Mavent Advisors Pvt. Ltd. INR 7,12,26,702 3. Average Fair Value INR 6,83,84,524 20 Number of Meetings of CoC held 11 (Eleven)
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iv. I sought vote of members of the CoC by electronic voting system which was kept open from 08 January 2024 to 09 February 2024 i.e. at least for 24 hours as per the regulation 26.
- The list of financial creditors of the Nyka Steels Private Limited being members of the CoC and distribution of voting share among them is as under:
Sl. No. Name of Creditor Voting Share (%) Voting for Resolution Plan (Voted for / Dissented / Abstained) 1 UCO Bank 100 Voted For
- The Resolution Plan includes a statement under regulation 38(1A) of the CIRP Regulations as to how it has dealt with the interests of all stakeholders in compliance with the Code and regulations made thereunder.
6A. Minutes of the committee meeting relating to discussion and decisions about resolution plan are attached with this certificate- Minutes of the 10th CoC Meeting of the Corporate Debtor held on 04th January 2024 are attached with this certificate.
- The amounts provided for the stakeholders under the Resolution Plan is as under:
Sl . Categor y of Sub- Categor y of Amount Claimed Amount Admitte d Amoun t Provide d under Amo unt Prov ided Am oun t Pro
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N
o.
Stakeho
lder*
Stakehol
der
the
Plan
to
the
Amo
unt
Clai
med
(%)
vide
d to
the
Am
oun
t
Ad
mit
ted
(%)
(1
)
(2)
(3)
(4)
(5)
(6)
(7)
1 Secured Financia l Creditor s
(a) Creditors not having a right to vote under sub- section (2) of section 21
(b) Other than (a) above:
(i) who did not vote in favour of
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the
resolutio
n Plan
(ii)
who
voted in
favour of
the
resolutio
n plan
51,45,80
,514
50,51,50
,179
7,91,00,
000
15.3
7%
15.6
6%
Total[(a)
- (b)] 51,45,8 0,514 50,51,5 0,179 7,91,00 ,000 15.3 7%
66 % 2 Unsecur ed Financia l Creditor s
(a) Creditors not having a right to vote under sub- section (2) of section 21
(b) Other than (a) above:
(i) who did not
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vote in favour of the resolutio n Plan (ii) who voted in favour of the resolutio n plan
Total[(a)
- (b)]
3 Operatio nal Creditor s
(a) Related Party of Corporat e Debtor
(b) Other
than
(a)
above:
(i)Govern
ment
(ii)Work
men
(iii)Empl
oyees
(iv)
For
goods
6,76,21, 186
2,77,07, 939
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and services Total[(a)
- (b)]
Grand Total
58,22,0
1,700
53,28,5
8,118
7,91,00
,000
13.5
9%
14.
84
%
Notes:
-
The total resolution plan value as per the resolution plan is INR 8,11,00,000. The amount of INR 7,91,00,000 in the table above excludes Unpaid CIRP Cost of INR 20,00,000.
-
The resolution plan also mentions that the CIRP cost shall be paid at actuals and excess shall be adjusted from the distribution to secured financial creditors.
-
The interests of existing shareholders have been altered by the Resolution plan as under: Sl. No Category of Share Holder No. of Shares held before CIRP No. of Shares held after the CIRP Voting Share (%) held before CIRP Voting Share (%) held after CIRP 1 Equity 1,28,125 NIL 100% NIL
-
The compliance of the Resolution Plan is as under:
Section of the Code / Regulation Requirement with respect to Resolution Plan Clause of Resolution Plan Complianc e (Yes / No)
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No.
25(2)(h)
Whether
the
Resolution
Applicant meets
the
criteria
approved by the
CoC
having
regard
to
the
complexity
and
scale
of
operations
of
business of the
CD?
Yes Section 29A Whether the Resolution Applicant is eligible to submit resolution plan as per final list of Resolution Professional or Order, if any, of the Adjudicating Authority?
Yes Section 30(1) Whether the Resolution Applicant has submitted an affidavit stating that it is eligible? Affidavit dated 28 August 2023 given by the Resolution Applicant Yes
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Section 30(2) Whether the Resolution Plan-
(a) provides for the payment of insolvency resolution process costs?
Clause 4.7 (i) (a)
at Page No. 20 of
the
Resolution
Plan
Read with
Clause 4.10.1 at
Page No. 25 of the
Resolution Plan
Yes
(b) provides for
the payment to
the
operational
creditors?
Clause 4.7 (i) (d)
(Payment
to
Other
Operational
Creditors)
@
Page No. 22 of the
Resolution Plan
AND
Clause 4.7 (i) (c)
(Operational
Creditors
including
Outstanding
Statutory
Authorities Debt
/
Other
Operational
Creditors
(excluding
Workmen
and
Employees))
@
Yes
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Page Nos. 21 of the Resolution Plan.
AND
Clause 4.7 (i) (b)
(Workmen
and
Employees)
@
Page No. 20 of the
Resolution Plan
(c) provides for
the payment to
the
financial
creditors who did
not
vote
in
favour
of
the
resolution plan?
Clause 4.7 (i) (e)
(Financial
Creditors)
@
Page Nos. 23 of
the
Resolution
Plan
AND
Clause
4.10.3
(Mandatory
contents
of
Resolution Plan)
at Pg No. 23 of
the
Resolution
Plan
Yes
(d) provides for
the management
of the affairs of
the
corporate
debtor?
Clause
5.4
(Monitoring
Committee) Pg.
no.32
of
the
Resolution plan.
Yes
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(e) provides for the implementation and supervision of the resolution plan?
Clause 5.2 (Implementatio n Schedule) @ Page Nos. 29-30 of the Resolution Plan
AND
Clause 5.4 (Monitoring Committee) Pg. no.32 of the Resolution plan. Yes (f) contravenes any of the provisions of the law for the time being in force?] Clause 4.10.11 (Mandatory contents of Resolution Plan) @ page no. 26 of the Resolution Plan
And
Clause 10.1 @
page no 47 of the
Resolution
Plan
provides the RA
does
not
contravenes any
of the provisions
of the law for the
time
being
in
force.
Yes
Section 30(4) Whether
the
Resolution Plan
Financial
Projections
submitted
with
Yes
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(a) is feasible and viable, according to the CoC?
(b) has been approved by the CoC with 66% voting share? the Resolution Plan
Yes Section 31(1) Whether the Resolution Plan has provisions for its effective implementation plan, according to the CoC? Clause 5.2 (Implementatio n Schedule) @ Page Nos. 29-30 of the Resolution Plan
AND
Clause 5.4 (Monitoring Committee) Pg. no.32 of the Resolution plan. Yes Regulation3 8 (1) Whether the amount due to the operational creditors under the resolution plan has been given priority in payment over financial creditors? Clause 4.7 (i) (d) (Payment to Other Operational Creditors) @ Page No. 22 of the Resolution Plan
And
Clause 4.10.2 (Mandatory contents of Yes
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Resolution Plan) @ Page No. 25 of the Resolution Plan
Regulation
38(1A)
Whether
the
resolution
plan
includes
a
statement as to
how it has dealt
with
the
interests of all
stakeholders?
Clause
4.7
(Manner
of
payment of total
plan amount) @
Page No. 20-24 of
the
Resolution
Plan
Yes Regulation 38(1B) (i) Whether the Resolution Applicant or any of its related parties has failed to implement or contributed to the failure of implementation of any resolution plan approved under the Code.
(ii) If so, whether the Resolution Applicant has submitted the statement giving details of such non- Clause 3.4 @ Page No. 19 of the Resolution Plan
AND
Clause
4.10.12
(Mandatory
contents
of
Resolution Plan)
@ Page No. 26 of
the
Resolution
Plan
NA Yes
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implementation?
]
Regulation
38(2)
Whether
the
Resolution Plan
provides:
(a) the term of
the plan and its
implementation
schedule?
Clause 5.2 (Implementatio n Schedule) @ Page Nos. 29-30 of the Resolution Plan
AND
Clause 5.4 (Monitoring Committee) Pg. no.32 of the Resolution plan.
Yes (b) for the management and control of the business of the corporate debtor during its term?
Clause 5.4 (Monitoring Committee) Pg. no.32 of the Resolution plan.
Yes (c) adequate means for supervising its implementation? Clause 5.2 (Implementatio n Schedule) @ Page Nos. 29-30 of the Resolution Plan
AND
Clause 5.4 Yes
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(Monitoring Committee) Pg. no.32 of the Resolution plan.
38(3) Whether the resolution plan demonstrates that – (a) it addresses the cause of default?
Clause 2.4 @ Pg No. 15 of the Resolution Plan.
AND
Clause
4.10.5
(Mandatory
contents
of
Resolution Plan)
@ Page No. 25 of
the
Resolution
Plan
Yes (b) it is feasible and viable?
Financial Projections submitted with the Resolution Plan
Yes (c) it has provisions for its effective implementation?
Clause 5.2 (Implementatio n Schedule) @ Page Nos. 29-30 of the Resolution Plan
AND
Clause
5.4
(Monitoring
Committee) Pg.
no.32
of
the
Resolution plan
Yes
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(d) it has provisions for approvals required and the timeline for the same?
Clause 5.5 (List of approvals, from whom and estimated timelines) @ Page Nos. 32-33 of the Resolution Plan
Yes (e) the resolution applicant has the capability to implement the resolution plan? Clause 3 (Overview of the RA) @ Page No. 16-19of the Resolution Plan
AND
Clause 4.10.6 (Mandatory contents of Resolution Plan) @ Page No. 25 of the Resolution Plan
Yes 39(2) Whether the RP has filed applications in respect of transactions observed, found or determined by him? Clause 9.1 (Receivable from avoidance application) @ Page No. 42 of the Resolution Plan
Yes
Regulation
39(4)
Provide details of
performance
security
received,
as
referred
to
in
sub-regulation
Yes, Performanc e Security of INR 1,62,20,000
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(4A) of regulation 36B. is provided
- The CIRP has been conducted as per the timeline indicated as under: Section of the Code / Regulation No. Description of Activity Latest Timeline under regulation 40A Actual Date Section 16(1) Commencement of CIRP and Appointment of IRP 03 February 2023 03 February 2023 Regulation 6(1) Publication of Public Announcement 06 February 2023 10 February 2023 (order was received by IRP on 9 February
Section
15(1)(c)
/Regulation
12 (1)
Submission of Claims
17 February
2023
24 February
2023
Regulation
13(1)
Verification of Claims
24 February
2023
03 March
2023
Section
26(6A) /
Regulation
15A
Application for Appointment
of Authorised
Representative, if necessary
26 February
2023
NA
Regulation
17(1)
Filing of Report Certifying
Constitution of CoC
26 February
2023
06 March
2023
Section
22(1) and
regulation
17(2)
First Meeting of the CoC
05 March
2023
09 March
2023
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Regulation 35A Determination of fraudulent and other transactions 29 May 2023 21 June 2023 (Auditor was appointed by the RP) And 09 January 2024 (date of receipt of transaction audit report) Regulation 27 Appointment of two Registered Valuers 22 March 2023 22 June 2023 Regulation 36 (1) Submission of Information Memorandum to CoC 09 May 2023 11 August 2023 (Within 1 day of receipt of undertaking from CoC) Regulation 36A Invitation of EoI 04 April 2023 21 June 2023 Publication of Form G 04 April 2023 21 June 2023 Provisional List of Resolution Applicants 29 April 2023 31 July 2023 Final List of Resolution Applicants 14 May 2023 18 August 2023 Regulation 36B Issue of Request for Resolution Plan, which includes Evaluation Matrix and Information 19 May 2023 05 August 2023
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Memorandum to Resolution Applicants Section 30(6) / Regulation 39(4) Submission of CoC approved Resolution Plan 13 February 2024 26 February 2024 Section 31(1) Approval of Resolution Plan 28 February 2024
- The time frame proposed for obtaining relevant approvals is as under:
The Successful Resolution Applicant has sought certain reliefs, concessions and dispensation as more particularly set out under Clause 8 of the resolution plan.
-
The Resolution Plan is not subject to any contingency.: Yes
-
Following are the deviations / non-compliances of the provisions of the Insolvency and Bankruptcy Code, 2016, regulations made or circulars issued thereunder (If any deviation/ non-compliances were observed, please state the details and reasons for the same): NIL
-
The Resolution Plan was filed on 26 February 2024, i.e. 2 days before the expiry of the period of CIRP provided in section 12 of the Code. Hon’ble NCLT vide order dated 12 March 2024, Hon’ble NCLT
allowed the extension of 74 days from 16 December 2023, making 28 February 2024, the last of CIRP.)
14A. Whether the resolution professional has, in accordance with regulation 35A,- (a) applied to the Adjudicating Authority on or before the one hundred and thirty-fifth day of the insolvency commencement
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date: No, the RP was appointed vide order dated 12 May 2023, which was received by RP on 20 May 2023. Pursuant to appointment and as approved by CoC, the auditor was appointed on 21 June 2023 and the final audit report was received on 09 January 2024.
(b) filed Form CIRP 8 with the Board on or before the one hundred and fortieth day of the insolvency commencement date: No, transaction audit was not concluded on or before the one hundred and fortieth day of the insolvency commencement date.
- Provide details of section 66 or avoidance application filed /
pending.
Sl.
No.
Type of Transaction Date of Filing with Adjudicating Authority Date of Order of the Adjudicating Authority Brief of the Order 1 Preferential transactions under section 43 23 February 2024
2 Undervalued transactions under section 45
3 Extortionate credit transactions under section 50
4 Fraudulent transactions under section 66 23 February 2024
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15A. The committee has approved a plan providing for contribution under regulation 39B as under: The members in the 10th CoC Meeting unanimously decided that the above shall be discussed and pursued in the ensuing CoC meeting, if none of the resolution plan receive requisite majority.
15B. The committee has recommended under regulation 39C as under: a. Sale of corporate debtor as a going concern:
NA b. Sale of business of corporate debtor as a going concern: NA
Note: The members in the 10th CoC Meeting unanimously decided that the above shall be discussed and pursued in the ensuing CoC meeting, if none of the resolution plan receive requisite majority.
15C. The committee has fixed, in consultation with the resolution professional, the fee payable to the liquidator during the liquidation period under regulation 39D. - NA
Note: The members in the 10th CoC Meeting unanimously decided that the above shall be discussed and pursued in the ensuing CoC meeting, if none of the resolution plan receive requisite majority.
- I, Avil Menezes hereby certify that the contents of this certificate are true and correct to the best of my knowledge and belief, and nothing material has been concealed therefrom.
Name of the Resolution Professional: Avil Menezes
IP Registration No: IBBI/IPA-001/IP-P00017/2016-17/10041
Authorization for Assignment valid till 27th November 2024
Address as registered with the Board: 106, 1st Floor,
Kanakia Atrium 2, Cross Road A, Behind Courtyard Marriott,
Chakala, Andheri East, Mumbai - 400093
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Email id as registered with the Board: avil@caavil.com Date: 23-05-2024 7. In the circumstances mentioned hereinabove, the Applicant has filed Application seeking approval of this Tribunal on the Resolution Plan, submitted by the Resolution Applicant i.e. Lalita Santosh Powle in Consortium with Pravesh Seafood Private Limited stating that the plan is in accordance with the Section 30(2) and other provisions laid down under the code. 8. On perusal of the Resolution Plan, it is observed that the Resolution Plan provides for the following: a. Payment of CIRP Cost as specified u/s 30(2)(a) of the Code. b. Repayment of Debts of Operational Creditors as specified u/s 30(2)(b) of the Code. c. For management of the affairs of the Corporate Debtor, after the approval of Resolution Plan, as specified U/s 30(2)(c) of the Code. d. The implementation and supervision of Resolution Plan by the RP and the CoC as specified u/s 30(2)(d) of the Code. 9. The RP has complied with the requirement of the Code in terms of Section 30(2)(a) to 30(2)(f) and Regulations 38(1), 38(1)(a), 38(2)(a), 38(2)(b), 38(2)(c) & 38(3) of the Regulations.
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- The RP has filed Compliance Certificate in Form-H along with the plan. On perusal the same is found to be in order. The Resolution Plan has been approved by the CoC in the 10th meeting held on 04.01.2024 with 100% (Hundred percent).
- We make it categorically clear that approval of this Resolution Plan does not tantamount to allowance of any relief(s), concession(s) or dispensation(s) that fall within the domain of any government department(s) and/or authorities thereto. The reliefs, concessions and dispensations that pertain to other governmental authorities and/or departments shall be dealt with by the respective competent authorities/fora/offices, Government (State or Central) with regard to the respective reliefs, if any.
- In the case of “K Sashidhar v. Indian Overseas Bank & Others” (in Civil Appeal No.10673/2018 decided on 05.02.2019) the Hon’ble Apex Court held that if the CoC had approved the Resolution Plan by requisite percent of voting share, then as per section 30(6) of the Code, it is imperative for the Resolution Professional to submit the same to the Adjudicating Authority (NCLT). On receipt of such a proposal, the Adjudicating Authority is required to satisfy itself that the Resolution Plan as approved by CoC meets the requirements specified in Section 30(2). The Hon’ble Court observed that the role of the NCLT is ‘no
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more and no less’. The Hon’ble Court further held that the discretion of the Adjudicating Authority is circumscribed by Section 31 and is limited to scrutiny of the Resolution Plan “as approved” by the requisite percent 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. 13. In CoC of Essar Steel (Civil Appeal No. 8766-67 of 2019 decided on 15.11.2019) the Hon’ble Apex Court clearly laid down that the Adjudicating Authority would not have power to modify the Resolution Plan which the CoC in their commercial wisdom have approved. In para 42 Hon’ble Court observed as under:
“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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- In view of the discussions and the law thus settled, the instant Resolution Plan meets the requirements of Section 30(2) of the Code and Regulations 37, 38, 38 (1A) and 39 (4) of the Regulations. The Resolution Plan is not in contravention of any of the provisions of Section 29A of the Code and is in accordance with law. The same needs to be approved. Hence ordered. ORDER
- The Application IA-30/2024 in CP(IB)/1009/(MB- IV)/2020 is allowed. The Resolution Plan annexed to the Application is hereby approved. It shall become effective from this date and shall form part of this order. 13.1. It shall be binding on the Corporate Debtor, its employees, members, creditors, including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force is due, guarantors and other stakeholders involved in the Resolution Plan. 13.2. The approval of the resolution plan shall not be construed as waiver of any statutory obligations of the Corporate Debtor and shall be dealt by the appropriate authorities in accordance with law. Further in terms of the judgment of Hon’ble Supreme Court in the matter of “Ghanshyam
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Mishra And Sons Private Limited V/S Edelweiss Asset Reconstruction Company Limited”, on the date of approval of the Resolution Plan by the adjudicating authority, all such claims which are not a part of Resolution Plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim which is not a part of the Resolution Plan. 13.3. The Memorandum of Association (MoA) and Articles of Association (AoA) shall accordingly be amended and filed with the Registrar of Companies (RoC), Mumbai, Maharashtra for information and record. The Resolution Applicant, for effective implementation of the Plan, shall obtain all necessary approvals, under any law for the time being in force, within such period as may be prescribed. 13.4. The moratorium under Section 14 of the Code shall cease to have effect from this date. 13.5. The Applicant shall supervise the implementation of the Resolution Plan and file status of its implementation before this Authority from time to time, preferably every quarter. 13.6. The Applicant shall forward all records relating to the conduct of the CIRP and the Resolution Plan to
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the IBBI along with copy of this Order for information. 13.7. The Applicant shall forthwith send a certified copy of this Order to the CoC and the Resolution Applicant, respectively for necessary compliance. 16. The Interlocutory Application i.e. IA-30/2024 in CP(IB)/1009(MB)/2020 is allowed accordingly disposed of.
Sd/-
Sd/-
Anu Jagmohan Singh
Kishore Vemulapalli Member (Technical)
Member (Judicial)
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