Ramchandra Dalaram Choudhary RP of Anil Mega Food Park Pvt Ltd Vs M2K Developers Pvt. Ltd. (NCLT Ahmedabad)
NCLT Ahmedabad rejected approval of Conditional Resolution Plan of Anil Mega Food Park Pvt Ltd
Hon’ble National Company Law Tribunal (NCLT), Ahmedabad in IA 843/2021 filed by Ramchandra Dalaram Choudhary RP of Anil Mega Food Park Pvt Ltd for approval of Resolution Plan has observed following;
1. The Resolution Applicant in its application i.e., IA/420(AHM)2022 has produced on record the Information Memorandum dated 21.08.2021 prepared by the RP (page no. 30 is relevant to look into). A layout of the plot of lands owned by the Corporate Debtor and other lands surrounding too has been prepared. There are dotted lines shown by the RP giving an impression to Resolution Applicants in general that there is an existence of the road connecting to the main road and the plots of land owned by the Corporate Debtor. However, in fact, such road is not in existence at all. It is not in dispute that the Corporate Debtor’s unit is a landlock unit from all sides. The Resolution Applicant cannot approach that unit for want of connectivity road.
2. There is enough material on record to show that the RP was well aware of the fact that the Corporate Debtor’s unit is the landlock unit. This fact was discussed in detail in the CoC meeting. The minutes of 5th CoC meeting dated 07.09.2021 are on record (Annexure-J of IA/843(AHM)2021). The CoC specifically asked the RP “whether the Resolution Applicant was aware of the fact about the entry/access to the land of the Corporate Debtor because the land is blocked due to Bharatmala Project?”. The RP apprised the CoC stating that the communication is done with the Highway Authority which may provide the access etc. It shows that the CoC and RP were well aware that there is no access to the unit of the Corporate Debtor from the main road. In spite of that, the RP in Information Memorandum tried to show the dotted lines giving impression that the approach road can be made available to the Prospective Resolution Applicant. If there is no approach road connecting to the main road and unit of the Corporate Debtor, we fail to understand how the Resolution Applicant will be able to run that unit. The Resolution Applicant in the Resolution Plan has stated in uncertain terms in para 6.8(e) that:- “…6.8(e) That the access and approach road of 24 meters to the subject land as clearly indicated on page no. 11 of IM shall exist at site and be made available to the RA without any condition, condition or any additional costs whatsoever, so as to ensure that the free access/entry exist to the subject land of 3,53,291 Sq. Mtr. Is made available to the RA……”.
3. It is not in dispute that due to the National Highway in between the main road and unit of the Corporate Debtor, there exists no approach road. It is not possible for the RP, and the CoC to make available such an approach road leading to the unit of the Corporate Debtor which the Resolution Applicant is demanding through the Resolution Plan as approved by the CoC.
4. In our considered opinion, such Resolution Plan, if at all approved, cannot be effectively implemented by anyone. The proviso to section 31(1) does not permit us to approve such conditional Resolution Plan. Hence, we reject the Resolution Plan submitted along with IA/843(AHM)2021.
FULL TEXT OF THE NCLAT JUDGMENT/ORDER
1. IA/843(AHM)2021 is an application filed by the Resolution Professional (“RP”) under section 30(6) of the Insolvency and Bankruptcy Code, 2016 (“IBC, 2016”) for approval of the Resolution Plan submitted by M/s. M2K Developers Pvt. Ltd. (Applicant in IA/420(AHM)2022) for the Corporate Debtor-M/s. Anil Mega Food Park Pvt. Ltd.
2. IA/420(AHM)2022 is an application filed by the Successful Resolution Applicant- M/s. M2K Developers Pvt. Ltd. for bringing on record certain facts relating to its Resolution Plan more particularly pointing out that its Resolution Plan is subject to certain conditions which the RP and Committee of Creditors (“CoC”) have to comply with.
3. We heard Learned Senior Counsel Mr. Navin Pahwa for the RP and Learned Counsel Mr. Pavan S. Godiawala for the Resolution Applicant.
4. The Corporate Debtor was admitted in Corporate Insolvency Resolution Process (“CIRP”) vide order dated 29.01.2021. The Applicant in IA/843(AHM)2021 was appointed as the IRP. On 03.02.2021, he made a public announcement of the CIRP of the Corporate Debtor. He collated the claims of the creditors of the Corporate Debtor. He constituted the CoC consisting of only one Financial Creditor i.e., IFCI Ltd. having its 100% voting shares. In the first CoC meeting dated 03.02.201 the appointment of the IRP was confirmed as the RP.
5. On 09.03.2021, the RP published Form-G based on the Information Memorandum of the assets and liabilities of the Corporate Debtor. The RP invited the Expression of Interest (“EoI”)/ Resolution Plan from Prospective Resolution Applicant for the Corporate Debtor. It appears from the record that initially there was no response from any Proposed Resolution Applicant. Hence, the CoC directed the RP to publish Form-G once again. Accordingly, on 30.07.2021, the RP published Form-G (at page no. 108 of IA/843(AHM)2021). This Form-G was supported by the Information Memorandum produced by the Resolution Applicant (at page no. 28 of IA/420(AHM)2022). This Information Memorandum has relevance for considering the fact “whether Resolution Plan as approved by the CoC with the requisite majority, can be approved by this Adjudicating Authority?”.
6. We examined the Resolution Plan in the light of provisions of section 30(2) of the IBC, 2016. We noted that in the Resolution Plan, a provision is made for payment of the CIRP cost as contemplated under section 30(2)(a) of the IBC, 2016. A certain amount is also earmarked for payment of the Operational Creditors on a priority basis thereby the provisions of section 30(2)(b) of the IBC, 2016 are complied with. There is no dissenting Financial Creditor. In para 9.1 (at page 191 in IA/843(AHM)2021), there is a mechanism provided for appointing a Monitoring Committee to look after the assets of the Corporate Debtor pending approval of the Resolution Plan. It is to be noted that the Corporate Debtor was not a running unit at all since its inception. It is also mentioned in the Resolution Plan that the same Monitoring Committee was given the task of the implementation of the Resolution Plan and thereby provision of sections 30(2)(b),(c), (d), and (e) are complied with. The term of the Resolution Plan is fixed for two years. The following is the financial outlay stated in the Resolution Plan which would show that equal treatment is given to all stakeholders:
