Case Law Details
Kisanrao Kashiprasad Borale Vs Latakisan Construction Private Limited (NCLT Mumbai)
NCLT Mumbai held that resolution plan for Latakisan Construction P. Ltd. as submitted by Successful Resolution Applicant stands approved as approved by 100% Committee of Creditors. Accordingly, resolution plan is allowed.
Facts- The Resolution Professional of Latakisan Construction Private Limited (“Corporate Debtor”), Mr. Ajay Gupta (“Resolution Professional” / “Applicant”), has filed an Application seeking approval of Resolution Plan dated 15.10.2024, submitted by the Successful Resolution Applicant, Shri Kisan Kashiprasad Borele in terms of Section 31 of the Insolvency and Bankruptcy Code, 2016 after the approval of Committee of Creditors of the Corporate Debtor with 100% at the 12th CoC meeting dated 07.11.2024. Notably, the CIRP of the Corporate Debtor was initiated vide this Tribunal’s order dated 23.06.2023 and Mr. Prasad Kamalakar Dharap was appointed as the Interim Resolution Professional.
Conclusion- In K Sashidhar v. Indian Overseas Bank & Others, 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) of the Code.
Held that 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 CIRP 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. The Resolution Plan is hereby approved.
FULL TEXT OF THE NCLT JUDGMENT/ORDER
1. The Resolution Professional of Latakisan Construction Private Limited (“Corporate Debtor”), Mr. Ajay Gupta (“Resolution Professional” / “Applicant”), has filed an Application bearing IA (IBC) (PLAN) No. 123/2025 in CP(IB) No. 860/2022 seeking approval of Resolution Plan dated 15.10.2024, submitted by the Successful Resolution Applicant, Shri Kisan Kashiprasad Borele (“SRA”) in terms of Section 31 of the Insolvency and Bankruptcy Code, 2016 (“Code”) after the approval of Committee of Creditors (“CoC”) of the Corporate Debtor with 100% at the 12th CoC meeting dated 07.11.2024.
2. The CIRP of the Corporate Debtor was initiated vide this Tribunal’s order dated 23.06.2023 and Mr. Prasad Kamalakar Dharap was appointed as the Interim Resolution Professional (“IRP”).
3. As per regulation 6 of the CIRP Regulations, the Applicant made a public announcement vide Form A on 13.07.2024 notifying the commencement of CIRP of the Corporate Debtor and inviting the claims of Creditors. The last date of submitting the claims was 26.07.2023. Pursuant to publication of Form A the IRP collated and compiled the list of claims and constituted the Committee of Creditors (“CoC”) on 27.07.2023.
4. The IRP had received only one claim from the Financial Creditor viz. Kisanrao Kashiprasad Borele. However, the Applicant did not receive claims from any Operational Creditor.
5. In the 1st CoC meeting held on 10.08.2023, the IRP was confirmed as the Resolution Professional (“RP”) of the Corporate Debtor. The RP had valued the assets of the Corporate Debtor by appointing 4 registered valuers that are, Surendra Bhaurao Gorde, Shrikant Bhagwanji Mankar, Ankit Gupta and Swapnil Agrawal. Accordingly, the valuers have submitted their valuation report along with the Fair Market Value and Liquidation Value to the Applicant and the Valuation are as under:-
6. The RP had also appointed Mr. Hitesh Gadhia Chartered Accountant as the Transcation Auditor of the Corporate Debtor.
7. It is submitted that about 12 CoC meetings of the Corporate Debtor have been held during CIRP period, details of which are as under:
| Sr. No. |
Particulars of CoC Meeting | Date of CoC Meeting |
| 1. | 1st CoC Meeting | 10- 08 – 2023 |
| 2. | 2nd CoC Meeting | 07 – 09 – 2023 |
| 3. | 3rd CoC Meeting | 07 – 11- 2023 |
| 4. | 4th CoC Meeting | 26- 12 – 2023 |
| 5. | 5th CoC Meeting | 12-01 -2024 |
| 6. | 6th CoC Meeting | 26-02- 2024 |
| 7. | 7th CoC Meeting | 16- 03 2024 |
| 8. | 8th CoC Meeting | 06-04- 2024 |
| 9. | 9th CoC Meeting | 27- 04- 2024 |
| 10. | 10th CoC Meeting | 28-08-2024 |
| 11. | 11th CoC Meeting | 30-09-2024 |
| 12. | 12th CoC Meeting | 07-11-2024 |
8. In the 4th CoC meeting held on 26.12.2023, the RP shared the information memorandum (“IM”) with the CoC member for their perusal upon receiving their confidentiality undertaking and the same was approved by the CoC. The RP had also prepared Request for Resolution Plan (“RFRP”) and Evaluation Matrix (“EM”) to be circulated to the PRA’s. The RP had placed the draft Expression of Interest (“EoI”) along with the eligibility criteria for issue of publication of Form G. The Form G was published on 28.12.2023 and the last date of submission of EoI was 12.01.2024 and last date of submission of Resolution Plan was 12.03.2024. This Tribunal extended the CIRP period by 90 days vide order dated 20.3.2024 passed in IA/ 1171/2024 extending it till 06.06.2024.
9. The Applicant received 9 EoI from the Prospective Resolution Applicants (“PRA”), however, none of the PRA’s submitted their Resolution Plan, accordingly, it was resolved in 5th CoC meeting held on 12.01.2024 to issue revised Form G with a condition of EMD of Rs. 10,00,000/- (Rupees Ten Lakh only).
10. The RP published Second Form G on 22.03.2024 and the last date of submission of Expression of Interest was 06.04.2024 and last date of submission of Resolution Plan was 05.06.2024.
11. Subsequent to issuance of the Second Form G, the RP received 17 enquiries and only one Expression of Interest from M/s. Kailash Agrawal. On due diligence about the PRA, the RP stated that he did not have relevant experience in the business of the Corporate Debtor and therefore the PRA would be ineligible to submit a Resolution Plan. In order to maximize the value of the stakeholders, it was resolved that the last date of submission of Expression of Interest be extended up to 04.05.2024. The RP again published Third Form G on 09.04.2024 and the last date of submission of ~ Expression of Interest was 04.05.2024 and last date of submission of Resolution Plan was 03.07.2024.
12. The CoC filed an IA 1154 of 2024 on 05.03.2024 before this Tribunal to replace RP Mr. Prasad Dharap with Mr. Ajay Gupta Applicant herein as the Resolution Professional of the Corporate Debtor, and the said application was allowed by this Tribunal on 08.04.2024 and the Applicant was appointed as the Resolution Professional.
13. In the 9th CoC meeting held on 27.04.2024, the CoC resolved to seek further extension of 90 days, which is claimed to have been orally allowed by this Tribunal.
14. In the 10th CoC meeting held on 20.08.2024, the Applicant informed the CoC that pursuant to Third Expression of Interest published by the erstwhile Resolution Professional, the Financial Creditor viz. Kisan Kashiprasad Borele had submitted Expression of Interest and his request for waiver of furnishing of EMD was allowed by the CoC in the said meeting. Further, the PRA was asked to submit his Resolution Plan well before the extended CIRP period in order to vet the Resolution Plan and put the same to vote thereafter.
15. It is submitted that the order dated 14.08.2024 in IA/3817/2024 was uploaded on 23.08.2024 and liquidation was initiated against the Corporate Debtor and this Tribunal appointed Mr. Dhiren Shah as liquidator of the Corporate Debtor. Mr. Kisan Kashiprasad Borele approached the Hon’ble NCLAT challenging the order initiating liquidation on various grounds. The Hon’ble NCLAT vide order dated 03.09.2024 issued notice and directed the Liquidator to not take any steps in pursuance of order dated 14.08.2024. Further vide order dated 20.09.2024 the Hon’ble NCLAT allowed the appeal and granted an extension of 60 days from the date of the order which expired on 19.11.2024.
16. The PRA sought time till 15.10.2024 to submit the Resolution Plan with the Applicant. The PRA submitted his Resolution Plan on 15.10.2024 and the same was found to be complaint in terms of provisions of the Code by the Applicant. The Resolution Plan submitted by Mr. Kisan Kashiprasad Borele was unanimously approved by the Committee of Creditors in its 12th Meeting convened on 07.11.2024.
17. The Applicant has confirmed that the Resolution Applicant, viz. Shri. Kisan Kashiprasad Borele is eligible under Section 29A of the Code to submit a Resolution Plan for the Corporate Debtor.
18. The Applicant submits that the Resolution Plan submitted is in compliance with Section 30 (2) of the Code and Regulation 38 (A) of the CIRP Regulations. The Applicant has provided a compliance certificate in “FORM H” as mandated under the Code for seeking approval of the Resolution Plan from this Tribunal.
19. The Applicant further confirms that the Resolution Plan so approved by COC provides for the payment of CIRP cost in priority from other debts i.e. compliance of Section 30 (2)(a) of IBC, 2016 (Section V of the Resolution Plan).
20. The Applicant further states that the Resolution Plan provides for
payment of debts to dissenting Financial Creditors who shall be paid along with other creditors. Therefore, the Resolution Plan is compliant under Section 30(2)(b) of IBC, 2016.
21. Further the Resolution Plan in compliance with Section 31(1) of IBC, 2016 also provides for provision for its effective implementation of the Plan. As per Section XIV of the Resolution Plan, once the plan is approved by this Tribunal, the duties of Applicant, in capacity as Resolution Professional shall extinguish from the date of order and a Monitoring Committee shall be established which shall be headed by the Applicant, Ajay Gupta, staring from the date of order (Effective Date) till the date of completion of the term of the plan (Completion Date). During such period the Monitoring Committee shall look after the implementation and supervision of the plan and will be the management and control of the business of the CD.
22. It is submitted that the present Application is being filed under Section 30(6) of the Code by the RP which is in furtherance to her duties prescribed under the Code as the RP of the Corporate Debtor and as the Resolution Plan has been approved by 100% majority of the COC.
Salient features of the Resolution Plan
1.1. Summary of Debt owed to Financial Creditors and Operational Creditors
As per the Information Memorandum and information made available in the Virtual Data Room and updated list of Creditors shared by the Resolution Professional on 30/09/2024, the total claim(s) filed by the Creditors are summarized below:
(INR Crores)
| Category of Creditors | Claims Submitted | Claims Admitted | Claims Rejected | Claims Under Verification | Amount of Claims Not Admitted |
| Financial Creditors | 4.46 | 4.46 | – | – | – |
| Operational Creditors | – | – | – | – | – |
| Employees & Workmen | – | – | – | – | – |
| Government and Statutory Authorities | – | – | – | – | – |
| Total | 4.46 | 4.46 | – | – | – |
1.2. Summary of Financial Proposal
A. Sources of Fund
Since the Resolution Plan entails deemed payment to the Resolution Applicant, who is also the sole Financial Creditor of the Corporate Debtor, the Resolution Plan does not specifically provide any proof of source of funds. Nevertheless, the Resolution Applicant undertakes to produce relevant proofs of source of funds, if so directed by the Resolution Professional or the Hon’ble Tribunal.
b. Financial Proposal
Being the sole Financial Creditor of the Corporate Debtor and also the Resolution Applicant, the Corporate Debtor’s liability towards the Financial Creditor shall be deemed to have been paid, on NCLT Approval Date.
| Stakeholder / Category | Details / Description |
| CIRP Costs | As per the Code, the CIRP Costs are to be paid in priority over payments to be made to any other creditors and the CIRP Costs shall, amongst, other things, include the costs, fees and charges incurred by the Resolution Professional, in running the operations of the Corporate Debtor as going concern.
It is anticipated that during the CIRP Period, cash flows generated by the Corporate Debtor will be sufficient to pay the CIRP Costs till the NCLT Approval Date. The CIRP Costs will be paid in priority over payments to any other Creditors of the Corporate Debtor. Once the CIRP Costs have been paid in full as set out above, it is clarified that no Claims, liabilities, fines, costs, expenses or any other payment of such nature or otherwise, that are or are claimed to constitute CIRP Costs shall be payable by the Resolution Applicant or Corporate Debtor. The Resolution Applicant estimates that unpaid CIRP Costs at INR 0.1027 Cr. as on date of submission of the Resolution Plan. However, any excess of unpaid CIRP cost, as may accrue until the, NCLT Approval Date, shall be paid in priority. |
| Financial Creditors | Out of the Total Resolution Amount, the Resolution Applicant will make a payment of INR 3.1 Crores as consideration for settlement of the Admitted Financial Creditor Debt. It is submitted that, being the Sole Financial Creditor, the said amount shall be deemed to be paid on approval of the Resolution Plan i.e. NCLT Approval Date. |
| Operational Creditors | Out of the Total Resolution Amount, the Resolution Applicant proposes to make payment of Nil to Operational Creditors (other than Workmen and Employees and Government and Statutory Authorities) (“Other Operational Creditors”) under Applicable Law including Section 30(2)(b) of the Code (“Other Operational Creditors Payments”), towards full and final satisfaction and discharge of the admitted Other Operational Creditor Debt, as no claims have been received from any Operational Creditors. |
| Employees and | As per the updated list of creditors shared by the Resolution Professional, claim is submitted by Workmen and Employees. Accordingly, Nil payment is to be made to Workmen and |
| Workmen | Employees in compliance Section 30(2)(b) of the Code read with |
| Payment
|
Regulation 38 of the CIRP Regulations and Section 53 of the Code. (‘Workmen and Employees Payments”). This payment shall be towards full and final payment and settlement of all claims (whether admitted or not) of all employees and workmen (whether employed or terminated) of the Corporate Debtor. |
| Government and Statutory Authorities
|
As per the updated list of creditors shared by the Resolution Professional, no claims have been submitted by Government and Statutory Authorities. Accordingly, Nil payment proposed to be made to Government and Statutory Authorities in compliance Section 30(2)(b) of the Code read with Regulation 38 of the CIRP Regulations (”Government and Statutory Authority Payments”).. |
A. Upfront Equity Infusion
The Resolution Applicant, either directly or through an SPV, is proposing to infuse fresh equity in the Corporate Debtor approximately to the tune of INR 10.00 Lakhs upfront from its own sources within 60 days from NCLT Approval Date. However, the said infusion shall be at the discretion of the Resolution Applicant, and thus the Resolution Applicant may choose to not infuse any further equity immediately, as indicated above, considering the prevailing financial position and requirements of the Corporate Debtor.
The financial proposal relating to this Resolution Plan submitted for the Corporate Debtor is set forth hereinbelow:
| Particulars | Amount (INR Crores) |
| CIRP Costs | 0.1027 |
| Secured Financial Creditors | 3.1 |
| Unsecured Financial Creditors | – |
| Operational Creditors | – |
| Workmen and Employees | – |
| Government and Statutory Authorities |
– |
| Shareholders | – |
| Total | – |
23. Statutory Compliance:
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 payment of debts of Operational Creditor in such manner as may be specified by the board which shall not be less than
i. the amount to be paid to such creditors in the event of liquidation of the Corporate Debtor under Section 53; or
ii. the amount that would have been paid to such creditors, if the amount to be distributed under the Resolution Plan had been distributed in accordance with sub-section (1) of Section 53 in the event of liquidation of the corporate debtor.
c) Provides for management of the affairs of the Corporate Debtor after approval of Resolution Plan;
d) The implementation and supervision of Resolution Plan;
e) Does not prima facie contravene any of the provisions of the law for time being in force,
f) Confirms to such other requirements as may be specified by the Board.
g) As per the Affidavit, the Resolution Applicant is not covered under 29A.
24. In compliance of Regulation 38 of CIRP Regulations, the Resolution Professional confirms that the Resolution plan provides that
a. The amount due to the Operational Creditors under Resolution Plan shall be given priority in payment over Financial Creditors.
b. It has dealt with the interest of all Stakeholders including Financial Creditors and Operational Creditors of the Corporate Debtor.
c. 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 Adjudicating Authority in the past.
d. The terms of the plan and its implementation schedule.
e. The management and control of the business of the Corporate Debtor during its term.
f. Adequate means of Supervising its implementation.
g. The Resolution Plan Demonstrates that it addresses
i. The cause of the Default
ii. It is feasible and viable
iii. Provision for effective implementation
iv. Provisions for approvals required and the time lines for the same.
v. Capability to Implement the Resolution Plan
25. The Resolution Professional has filed Form-H before this Tribunal under Regulation 39(4) of the CIRP Regulations to certify that the Resolution Plan as approved by the CoC meets all the requirements of the IBC and its Regulations, the relevant parts of which are reproduced below:
FORM H
COMPLIANCE CERTIFICATE
(Under Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016
The details of the CIRP are as under:-
| Sr. No. |
Particulars | Description |
| 1 | Name of the CD | Latakisan Construction Private Limited |
| 2 | Date of Initiation of CIRP | 23/06/2023 |
| 3 | Date of Appointment of IRP | 23/06/2023 |
| 4 | Date of Publication of Public Announcement |
14/07/2023 |
| 5 | Date of Constitution of CoC | 27/07/2023 |
| 6 | Date of First Meeting of CoC | 10/08/2023 |
| 7 | Date of Appointment of RP | 10/08/2023 |
| 8 | Date of Appointment of Registered Valuers | 04/09/2023 |
| 9 | Date of Issue of Invitation for EoI | 22/03/2024 |
| 10 | Date of Final List of Eligible Prospective Resolution Applicants | 05/06/2024 |
| 11 | Date of Invitation for Resolution Plan | 05/06/2024 |
| 12 | Last Date of Submission of Resolution Plan | 15/10/2024 |
| 13 | Date of Approval of Resolution Plan by CoC | 07/11/2024 |
| 14 | Date of Filing of Resolution Plan with Adjudicating Authority | 20/11/2024 |
| 15 | Date of Expiry of 180 Days of CIRP | 08/01/2024 |
| 16 | Date of Order Extending the Period of CIRP | 19/09/2024 |
| 17 | Date of Expiry of Extended Period of CIRP | 18/11/2024 |
| 18 | Fair Value | 409.74 Lakhs |
| 19 | Liquidation Value | 306.75 Lakhs |
| 20 | Number of CoC Meetings Held | 12 |
1. 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 Kisanrao Kashiprasad Borele has submitted an affidavit pursuant to section30(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.
iv. The voting was held in the meeting of the CoC on 07/11/2024 where all the members of the CoC were present. or
v. The list of financial creditors of the CD Latakisan Construction Private Limited being members of the CoC and distribution of voting share among them is as under:
| Sr. No. | Name of Creditor | Voting Share (%) | Voting for Resolution Plan |
| 1 | Kisanrao Kashiprasad Borele | 100% | Voted for the resolution plan |
3. The Resolution Plan includes a statement under regulation 38(IA) 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.
The interests of existing shareholders have been altered by the Resolution plan as under
| Sl. No. | Category of Shareholder |
No. of Shares Held Before CIRP | No. of Shares Held After CIRP | Voting Share (%) Before CIRP |
Voting Share (%) After CIRP |
| 1 | Equity | 10,000 | – | 100.00% | – |
| 2 | Preference | – | – | – | – |
The compliance of the Resolution Plan is as under:
| Section of the Code / Regulation
No. |
Requirement with respect to Resolution Plan |
Clause of Resolution Plan |
Compliance (Yes/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? | Section I | 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 AdjudicatingAuthority? |
The Resolution applicant has submitted an affidavit for the same.
Further, the RP has received are port from legal counsel affirming eligibility of |
Yes |
| Section 30(1) | Whether the Resolution Applicant has submitted an affidavit stating that it is eligible? | Affidavit was submitted along with expression of interest | Yes |
| Section 30(2) | Whether the Resolution Plan–
(a) Provides for the payment of insolvency resolution process costs? b) Provides for the payment to the operational creditors? (c) Provides for the payment to the financial creditors who did not vote in favour of the resolution plan (d) Provides for the management of the affairs of the corporate debtor (e) Provides for the implementation and supervision of the resolution plan? (f) Contravenes any of the provisions of the law for the time being in force? |
||
| Section IV, B, Pg. 28 of the Plan | yes | ||
| Section IV, B, Pg. 28 of the Plan
|
yes | ||
| NA
Section X Section XI Section IV, Clause C
|
NA
Yes Yes Yes |
||
| Section 30(4) | Whether the Resolution Plan
(a) is feasible and viable, according to the CoC (b) has been approved by the CoC with 60% voting share? |
Yes
Yes
|
Yes
Yes |
| Section 31 (1) | Whether the Resolution Plan has provisions for its effective implementation plan, according to the CoC ? | yes | Yes |
| Regulation 38(1) | Whether the amount due to the operational creditors under the resolution plan has been given priority in payment over financial creditors ? | Section IV, B, Pg. 29 of the Plan | NA |
| Regulation 38(1A) | Whether the resolution plan includes a statement as to how it has dealt with the interests of all stakeholders? | Section IV, B, Pg. 28 of the 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-implementation |
Section V, Pg. 34
Not Applicable |
No
Not Applicable |
| Regulation 38(2) | Whether the Resolution Plan provides:
(a) the term of the plan and its implementation schedule? (b) for the management and control of the business of the corporate debtor during its term? (c) adequate means for supervising its implementation? |
Section XIII
Section XI Section XII |
Yes
Yes Yes |
| 38(3) | Whether the resolution plan demonstrates that
(a) it addresses the cause of default? (b) it is feasible and viable? (c) it has provisions for its effective implementation? (d) it has provisions for approvals required and the timeline for the same? (e) the resolution applicant has the capability to implement the resolution plan? |
Section II,
Clause (e) Section III, Pg. 25 Section XI, Pg. 78 Section I, Pg. 12 |
Yes
Yes Yes Yes |
| Regulation 39(2) | Whether the RP has filed applications in respect of transactions observed, found or determined by him? | NA | NA |
| Regulation 39(4) | Provide details of performance security received, as referred to in sub-regulation (4A) of regulation 36B | NA | NA |
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 | T | 23/06/2023 |
| Regulation 6(1) | Publication of Public Announcement | T+3 | 14/07/2023 |
| Section 15(1)(c) Regulation 12(1) | Submission of Claims | T+14 | 26/07/2023 |
| Regulation 13(1) | Verification of Claims | T+21 | 06/08/2023 |
| Section 26(6A) Regulation 15A | Application for Appointment of Authorized Representative, if necessary | T+23 | NIL |
| Regulation 17(1) | Filing of Report Certifying Constitution of CoC | T+23 | 11/08/2023 |
| Section 22(1) and Regulation 17(2) | First Meeting of the CoC | T+30 | 10/08/2023 |
| Regulation 35A | Determination of fraudulent and other transactions | T+115 | NIL |
| Regulation 27 | Appointment of two Registered Valuers | NIL / T+47 | 04/09/2023 |
| Regulation 36(1) | Submission of Information Memorandum to CoC | T+54 | 26/12/2021 |
| Regulation 36A | Invitation of EoI | T+75 | 28/12/2023 |
| Publication of Form G | T+75 | 28/12/2023 | |
| Provisional List of Resolution Applicants | T+100 | 06/04/2024 | |
| Final List of Resolution Applicants | T+115 | 20/08/2024 | |
| Regulation 36B | Issue of Request for Resolution Plan, which includes Evaluation Matrix and Information Memorandum to Resolution Applicants | T+105 | 20/08/2024 |
| Section 30(6) Regulation 39(4) | Submission of CoC approved Resolution Plan | T+165 | 21/11/2024 |
| Section 31(1) | Approval of Resolution Plan | T=180 | 07/11/2024 |
26. On perusal of the Resolution Plan, we find 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.
27. 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.
28. 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 by majority of 100%.
29. The reliefs & concessions set out in the Resolution Plan as “Effect of the Resolution Plan” under part X of the Resolution Plan shall be available in accordance with the principle laid down by Hon’ble Supreme Court in case of Ghanshyam Mishra and Sons Private Limited v/s. Edelweiss Asset Reconstruction Company Limited Civil Appeal No. 8129 of 2019 and Municipal Corporation of Greater Mumbai vs. Abhilash Lal and Ors. (2019) in 480 NCLAT. Further, it is clarified and ordered that :
a. Any increase in the authorized capital shall be subject to payment of prescribed fee, if any applicable, and filing of prescribed forms with the Registrar of Companies.
b. The Applicant shall file necessary forms and pay prescribed fees, if any, in terms of provisions of the Companies Act, 2013 in relation to reduction in capital and issuance of fresh capital, however, the Registrar of Companies shall waive the additional fees, if any, payable on such filing.
c. The SRA may approach prescribed authorities for waiver/reduction in fees, charges, stamp duty, and registration fees, if any arising from actions contemplated under the Resolution Plan and such request shall be dealt with subject to the relevant law/statute and adherence to the procedure prescribed thereunder.
d. The SRA may file appropriate application, if required, for renewal of all Business Permits, rights, entitlements, benefits, subsidies and privileges whether under applicable Law, contract, lease or license granted in favour of the Corporate Debtor or to which the Corporate Debtor is entitled to or accustomed to, which have expired on the Effective Date, and follow the dues procedure prescribed for the purpose upon payment of prescribed fees. It is clarified that continuance of approvals shall not be refused on account of extinguishment of any dues under IBC and extension or renewal thereof shall not be denied on account of past insolvency of the Corporate Debtor. No action shall lie against the Corporate Debtor for any non-compliances arising prior to the date of approval of Resolution Plan, however, such non-compliances shall be cured, if necessitated to keep the approval in force, after acquisition by the Corporate Debtor within period stipulated in the Resolution Plan.
e. The SRA may approach for any relief, waiver or concession in compliance with the terms of Concession Agreement dated 29/04/2014 and Indenture of lease Dated 07/07/2014 with Nagpur Improvement Trust, which may be considered by them in accordance with their policy or applicable law dehors any violation or contravention of any of terms of said agreements in the past.
f. No orders levying any tax, demand of penalty from the Corporate Applicant in relation to period up to approval of the Resolution Plan shall be passed by any authority and such demand, if created, shall not enforceable as having extinguished in terms of approved Resolution Plan.
g. The carry forward of losses and unabsorbed depreciation shall be available in accordance with the provisions of Income Tax Act, and the Income Tax Department shall be at liberty to examine the same.
h. An application for compounding/condoning shall be filed in accordance with the procedure specified in respective law or concerned authority, however, no fine or penalty shall be imposed for non-compliances till the date of approval of this Plan or such further period as is permitted in terms of this Order.
i. ROC shall update the records and reflect the Corporate Applicant as ‘Active’ upon filing of pending returns/forms after payment of normal fees (not additional fee). In case such filing is not permitted by the e-filing portal, the ROC shall accept such forms/returns in physical format and manage to upload the same by back-end. The Corporate Applicant shall be exempted from using the words “and reduced”.
j. The Compliances under the applicable law for all the statutory appointments by the Corporate Applicant shall be completed within 12 months, whereafter, the necessary consequence under respective law shall follow.
k. The Resolution Applicant, the Corporate Debtor and the assets of the Corporate Debtor forming part of Resolution plan shall have immunity, privileges and protection as is available in the form and manner stated in Section 32A of the Insolvency and Bankruptcy Code, 2016.
l. It is clarified that any relief, concession or waiver, not specifically dealt with in Para 29 (a) to (k) above or not permissible in terms of decision in case of Ghanshyam Mishra (supra) and Abhilash lal (Supra) or specific provisions of the Code read with the Regulations, shall be deemed to be denied or rejected.
30. In 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) of the Code. The Hon’ble Apex Court further observed that the role of the NCLT is ‘no more and no less’. The Hon’ble Apex Court further held that the discretion of the Adjudicating Authority is circumscribed by Section 31 of the Code 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) of the Code when the Resolution Plan does not conform to the stated requirements.
31. 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 CIRP 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:
32. The Resolution Plan is hereby approved. It shall become effective from this date and shall form part of this order with the following directions:
i. It shall be binding on the Corporate Applicant, 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.
ii. The approval of the Resolution Plan shall not be construed as waiver of any statutory obligations/liabilities of the Corporate Applicant and shall be dealt by the appropriate Authorities in accordance with law. Any waiver sought in the Resolution Plan, shall be subject to approval by the Authorities concerned in light of the Judgment of Supreme Court in Ghanshyam Mishra and Sons Private Limited v/s. Edelweiss Asset Reconstruction Company Limited, the relevant paragraphs of which are extracted herein below:
“95. (i) Once a resolution plan is duly approved by the adjudicating authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the adjudicating authority, all such claims, which are not a part of the 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 part of the resolution plan;
ii. 2019 Amendment to Section 31 of the I&B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which the Code has come into effect;
iii. consequently, all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the adjudicating authority grants its approval under Section 31 could be continued.”
iii. 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.
iv. The Successful Resolution Applicant, for effective implementation of the Resolution Plan, shall obtain all necessary approvals, under any law for the time being in force, within such period as may be prescribed. It is clarified that the authorities shall not withhold the approval/consent/extension for the reason of insolvency of the Corporate Applicant or extinguishment of their dues up to approval of Resolution plan in terms of the approved plan. Any relief or concession as sought on the plan shall be subject to the provisions of the relevant Act.
v. The moratorium under Section 14 of the Code shall cease to have effect from this date.
vi. 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.
vii. The Applicant shall forward all records relating to the conduct of the CIRP and the Resolution Plan to the IBBI along with copy of this Order for information.
viii. The Applicant shall forthwith send a certified copy of this Order to the CoC and the Resolution Applicant, respectively for necessary compliance.
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