Committee of Creditors

Case BriefsSupreme Court

Supreme Court: The bench of Indira Banerjee* and AS Bopanna, JJ has reversed the NCLAT order wherein it was held that the Government cannot claim first charge over the property of the Corporate Debtor, as Section 48 of the Gujarat Value Added Tax, 2003 (GVAT Act), which provides for first charge on the property of a dealer in respect of any amount payable by the dealer on account of tax, interest, penalty etc. under the said GVAT Act, cannot prevail over Section 53 of the Insolvency and Bankruptcy Code, 2016 (IBC).

Holding that NCLAT clearly erred in its observation that Section 53 of the IBC over-rides Section 48 of the GVAT Act, the Court observed that, Section 48 of the GVAT Act is not contrary to or inconsistent with Section 53 or any other provisions of the IBC. Under Section 53(1)(b)(ii), the debts owed to a secured creditor, which would include the State under the GVAT Act, are to rank equally with other specified debts including debts on account of workman’s dues for a period of 24 months preceding the liquidation commencement date.

Going into the scheme of both the Statutes, the Court said that Section 3(30) of the IBC defines secured creditor to mean a creditor in favour of whom security interest is credited. Such security interest could be created by operation of law. The definition of secured creditor in the IBC does not exclude any Government or Governmental Authority. Likewise, the State is a secured creditor under the GVAT Act.

On the validity of a resolution plan which does not meet the requirements of Section 30(2) of the IBC, the Court held that the same would be invalid and not binding on the Central Government, any State Government, any statutory or other authority, any financial creditor, or other creditor to whom a debt in respect of dues arising under any law for the time being in force is owed. Such a resolution plan would not bind the State when there are outstanding statutory dues of a Corporate Debtor.

Explaining the scope of Section 31 of the IBC, the Court said that if a Resolution Plan meets the requirements, the Adjudicating Authority is mandatorily required to approve the Resolution Plan under Section 31(1). On the other hand, Section 31(2), which enables the Adjudicating Authority to reject a Resolution Plan which does not conform to the requirements referred to in Section 31(1), uses the expression “may”. If the established facts and circumstances require discretion to be exercised in a particular way, discretion has to be exercised in that way. If a Resolution Plan is ex facie not in conformity with law and/or the provisions of IBC and/or the Rules and Regulations framed thereunder, the Resolution would have to be rejected.

It was, hence, held that if the Resolution Plan ignores the statutory demands payable to any State Government or a legal authority, altogether, the Adjudicating Authority is bound to reject the Resolution Plan. Consequently, the Court observed that the Committee of Creditors, which might include financial institutions and other financial creditors, cannot secure their own dues at the cost of statutory dues owed to any Government or Governmental Authority or for that matter, any other dues.

Hence, if a company is unable to pay its debts, which should include its statutory dues to the Government and/or other authorities and there is no plan which contemplates dissipation of those debts in a phased manner, uniform proportional reduction, the company would necessarily have to be liquidated and its assets sold and distributed in the manner stipulated in Section 53 of the IBC.

[State Tax Officer v. Rainbow Papers Ltd, 2022 SCC OnLine SC 1162, decided on 06.09.2022]

*Judgment by: Justice Indira Banerjee

NCLAT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Appellate Tribunal, New Delhi: The Coram of  Ashok Bhushan, J (Chairperson), Shreesha Merla (Technical member), and Naresh Salecha (Technical member) has held that regardless of the delay made in filing the claims by homebuyers, a resolution professional should include the corporate debtor’s liabilities as mentioned in the Memorandum of Information(MoI).

Facts of the case and issue raised

An appeal was filed against the Order passed by the Adjudicating Authority (NCLT, New Delhi).

The observation of the Adjudicating Authority was that the claims of the homebuyers have been filed after a gap of eight months from the last date of the submission of the claim and therefore the claims cannot be admitted. Further, it was stated that the Committee of Creditors (CoC) had already approved the resolution plan.

The following issues were raised-

  • Whether the Resolution Professional was obliged to include the details of Homebuyers as reflected in the records of the Corporate Debtor in the Information Memorandum, even
    though they have not filed their claim before the Resolution Professional within time?
  • Whether Resolution Applicant ought to have also dealt with Resolution Plan regarding Homebuyers, whose names and claims are reflected in the record of the Corporate Debtor, although they have not filed any claim?

Submissions of the counsel

Appellant’s Counsel submitted that even though they could not file their claims within the time prescribed, details of their allotment and payments made by them already existed in the records of the Corporate Debtor. It was further submitted that it was the duty of the Resolution Professional to inform the Appellants to file their claims and in case the financial creditors were not able to do so the Resolution Professional could have included their claims in the Information Memorandum prepared under Regulation 36 of Corporate Insolvency Resolution Process (CIRP) Regulations as liabilities to Corporate Debtor.

Respondent’s Counsel submitted that Appellants did not file their claims within the time and filing of their claims was also beyond 90 days as provided by Section 12 of the Insolvency and Bankruptcy Code, 2016 (IBC) therefore no error was committed by Resolution Professional by not including the names of the Appellants in the ‘list of creditors’.

Analysis and decision

Firstly, the Coram stated that when the allotment letters are issued to the Homebuyers against the payment made, the real estate company is under the obligation to provide possession of the houses along with other attached liabilities.

Further, the Coram opinioned that the liability towards Homebuyers who had not filed their claim exists and are required to be included in the Information Memorandum. Non- consideration of such claims in the information memorandum can lead to inequitable and unfair resolutions.

Therefore, the Coram directed the resolution professional to submit the details of homebuyers, which are mentioned in the records of the corporate debtor including their claims, to the resolution applicant, based on which the resolution applicant shall prepare an addendum to the resolution plan, which may be placed before the CoC for consideration.

[Puneet Kaur v. K.V. Developers (P) Ltd., 2022 SCC OnLine NCLAT 245, dated- 01-06-2022]

Advocates before the tribunal

For Appellant(s): Mr. Mahesh Kumar and Ms. Simran Soni, Advocates.
For Respondent: Mr. Abhinav Vasisht, Sr. Advocate with Mr. Rakesh Kumar Bajaj and Mr.Harish Taneja, Advocates, Mr. Nitin Kumar and Mr. Gagan Gulati, Advocate.
Mr. Sumesh Dhawan and Ms. Vatsala Kak, Advocates.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): The Coram of Justice Jarat Kumar Jain, Judicial Member and Ashok Kumar Mishra, Technical Member, dismissed an appeal on no finding any infirmity in the impugned order. However, requested the adjudicating authority to consider the application before approving any Resolution Plan.

In the instant matter an impugned order of the National Company Law Tribunal, Guwahati was challenged on the ground that the Resolution Plan was accepted by 91.84% of the members of the ‘Committee of Creditors’ (CoC) but the approval for the same is pending before the Adjudicating Authority.

The Adjudicating Authority was of the opinion,

“…we are of the considered view that the Suspended Management of the Corporate Debtor (CD) be given a chance to submit Resolution Plan as prayed for. And go by the set precedents the pleadings of the Suspended Management to give him a chance for submitting a Resolution Plan, after the final judgment, being as an MSME Unit is reasonable”.

The Adjudicating Authority had also raised an issue of how the ‘Financial Creditor’ claimed 43 times of the amount of loan disbursed 21 years back when the Financial Creditor was under RBI Regulations, and the issue that the guarantee was invoked by the original lenders – IBBI for an amount of Rs.5,42,94,868, which was 24 times of the claimed amount in 18 years.

While referring to the judgments cited by the Appellants, the Tribunal stated that the applicability of the same was under dark as the Adjudicating Authority had only permitted for giving an opportunity to MSME to submit a concrete, composite, feasible and a viable resolution plan, and no other one was allowed to submit any plan other than the Resolution plan already submitted by the Resolution Applicant.

The Tribunal further noted,

“…there is no harm in giving an opportunity to the MSME in accordance with the provisions of the Code for keeping the promotion of entrepreneurship alive. The Adjudicating Authority has only provided an opportunity to the MSME and has given the liberty to the CoC to negotiate with existing Resolution Applicant and MSME unit also and accept the one which is commercially viable and technically feasible”.

On not finding any infirmity in the order, the Appellate Tribunal dismissed the appeal[PLBB Products Pvt. Ltd. v. Piyush Periwal, Company Appeal (AT) (Insolvency) No. 160 of 2021, decided on 07-09-2021]

Agatha Shukla, Editorial Assistant has reported this brief.

For the Appellant :

Mr Abhijeet Sinha, Mr Lzafeer Ahmad BF and Mr Aditya Shukla, Advocates.

For the Respondents :

Mr Jishnu Saha, Sr. Advocate with Mr Abhijit Sarkar, Advocates for Respondent No. 1.

Mr Sidhartha Barua and Mr Praful Jindal, Advocates for Respondent No. 2.

Mr Anand Verma and Mr Abhishek Prasad, Advocates for Respondent No. 3.

Case BriefsSupreme Court

Supreme Court: In an important ruling relating to the corporate insolvency resolution process concerning the corporate debtor, Jaypee Infratech Limited, the 3-judge bench of AM Khanwilkar, Dinesh Maheshwari* and Sanjiv Khanna, JJ has granted further 45 days for submission of the modified/fresh resolution plans by the resolution applicants, for their consideration by CoC and for submission of report by IRP to the Adjudicating Authority. The Court held that while the Adjudicating authority has the authority to disapprove the resolution plan approved by the Committee of Creditors (CoC), it cannot modify the same.

“If, within its limited jurisdiction, the Adjudicating Authority finds 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 the Code and exposited by this Court.”

Background

The ruling came in the dispute relating to the resolution plan in the corporate insolvency resolution process concerning the corporate debtor, Jaypee Infratech Limited (JIL), impacting a large number of persons/entities, including the buyers of flats/apartments in its real estate development projects.

Even though the resolution plan submitted by the resolution applicant, NBCC (India) Limited was approved by the CoC by a substantial majority of 97.36% of voting share of the financial creditors, NCLT, by its order dated 03.03.2020, approved the resolution plan with some modifications and certain directions while accepting some of the objections like those of the dissenting financial creditor bank and the land providing agency but while rejecting some other, including those of the holding company of JIL and while leaving a few propositions open for adjudication in the appropriate forum.

Here are the key findings by the Court in the matter:

A. 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 Insolvency and Bankruptcy Code, 2016. 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 Committee of Creditors.

B. The process of simultaneous voting over two plans for electing one of them cannot be faulted in the present case; and approval of the resolution plan of NBCC is not vitiated because of simultaneous consideration and voting over two resolution plans by the Committee of Creditors.

C. The stipulations in the resolution plan, as regards dealings with YEIDA and with the terms of Concession Agreement, have rightly not been approved by the Adjudicating Authority but, for the stipulations which have not been approved, the only correct course for the Adjudicating Authority was to send the plan back to the Committee of Creditors for reconsideration.

D. The Adjudicating Authority has not erred in disapproving the proposed treatment of dissenting financial creditor like ICICI Bank Limited in the resolution plan; but has erred in modifying the related terms of the resolution plan and in not sending the matter back to the Committee of Creditors for reconsideration.

E. The Adjudicating Authority has erred in issuing directions to the resolution applicant to make provision to clear the dues of unclaimed fixed deposit holders.

F. The issues related with the objections of YES Bank Limited and pertaining to JHL, the subsidiary of the corporate debtor JIL, are left for resolution by the parties concerned, who will work out a viable solution.

G. In the overall scheme of the resolution plan, the stipulation in Clause 21 of Schedule 3 thereof cannot be said to be unfair; and the observations in paragraphs 132 and 133 of the order dated 03.03.2020 justly take care of the right of any aggrieved party (agreement holder) to seek remedy in accordance with law and ensures viability of the resolution plan.

H. It cannot be said that the resolution plan does not adequately deal with the interests of minority shareholders. The grievances as suggested by the minority shareholders cannot be recognised as legal grievances.

I. The homebuyers as a class having assented to the resolution plan of NBCC, any individual homebuyer or any association of homebuyers cannot maintain a challenge to the resolution plan and cannot be treated as a dissenting financial creditor or an aggrieved person; the question of violation of the provisions of the RERA does not arise; the resolution plan in question is not violative of the mandatory requirements of the CIRP Regulations; and when the resolution plan comprehensively deals with all the assets and liabilities of the corporate debtor, no housing project of the corporate debtor could be segregated merely for the reason that same has been completed or is nearing completion.

J. (i) The amount of INR 750 crores (which was deposited by JAL pursuant to the orders passed by this Court in the case of Chitra Sharma) and accrued interest thereupon, is the property of JAL and stipulation in the resolution plan concerning its usage by JIL or the resolution applicant cannot be approved. The part of the order of NCLT placing this amount in the asset pool of JIL is set aside.

(ii) The question as to whether any amount is receivable by JIL and/or its homebuyers from JAL, against advance towards construction and with reference to the admitted liability to the tune of INR 195 crores as on 31.03.2020, shall be determined by NCLT after reconciliation of accounts. The amount, if found receivable by JIL, be made over to JIL and the remaining amount together with accrued interest be refunded to JAL in an appropriate account. It is made clear that the present matter being related to CIRP of JIL, no other orders are passed in relation to the amount that would be refunded to JAL because treatment of the said amount in the asset pool of JAL shall remain subject to such orders as may be passed by the competent authority dealing with the affairs of JAL.

K. (i) Clause 23 of Schedule 3 of the resolution plan, providing for extinguishment of security interest of the lenders of JAL could not have been approved by the Adjudicating Authority, particularly in 363 relation to the security interest that has not been discharged. This part of the order dated 03.03.2020 is set aside.

(ii) Adequate provision is required to be made in the resolution plan as regards utilisation of the land bank of 758 acres, that has become available to JIL free from encumbrance, in terms of the judgment dated 26.02.2020 of this Court in the case of Anuj Jain (supra).

L. (i) The impugned order dated 03.03.2020 shall be read as modified in relation to Clause 7 of Schedule 3 of the resolution plan; and the said clause shall stand approved.

(ii) As regards possession/control over the project sites/lands of JIL, it is left open for the resolution applicant to take recourse to the appropriate proceedings in accordance with law, whenever occasion so arise.

M. The Appellate Authority was not justified in providing for an Interim Monitoring Committee for implementation of the resolution plan in question during the pendency of appeals.

Taking into consideration the aforementioned findings, the Court, granted further 45 days for submission of the modified/fresh resolution plans by the resolution applicants, for their consideration by CoC and for submission of report by IRP to the Adjudicating Authority. This extended time includes the reconciliation of accounts of JIL and JAL. The process of reconciliation of accounts may go on alongside the processing of the resolution plans.

The processing of the modified/fresh resolution plans is required to be completed within the extended time and for that matter, the other aspects like reconciliation of accounts between JAL and JIL or resolution of the issues related with the financial creditor of the subsidiary of the corporate debtor shall be the matters to be dealt with separately and decision on the resolution plan by the Committee of Creditors need not wait the resolution of those issues.

Directing IRP to complete the CIRP within the extended time of 45 days, the Court said that it will be open to the IRP to invite modified/fresh resolution plans only from Suraksha Realty and NBCC respectively, giving them time to submit the same within 2 weeks.The IRP shall not entertain any expression of interest by any other person nor shall be required to issue any new information memorandum. The said resolution applicants shall be expected to proceed on the basis of the information memorandum already issued by IRP and shall also take into account the facts noticed and findings recorded in this judgment.

After receiving the resolution plans as aforementioned, the IRP shall take all further steps in the manner that the processes of voting by the CoC and his submission of report to the Adjudicating Authority (NCLT) are accomplished in all respects within the extended period of 45 days. The Adjudicating Authority shall take final decision in terms of Section 31 of the Code expeditiously upon submission of report by the IRP.

The Court, however, made clear that the aforementioned directions, particularly for enlargement of time to complete the process of CIRP, were issued in exceptional circumstances of the case at hand and shall not be treated as a precedent.

[Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd, 2021 SCC OnLine SC 253, decided on 24.03.2021]

*Judgment by: Justice Dinesh Maheshwari

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar, BR Gavai and Krishna Murari has held that the commercial wisdom of Committee of Creditors (CoC) is not to be interfered with, excepting the limited scope as provided under Sections 30 and 31 of the Insolvency and Bankruptcy Code, 2016 (IBC).

Taking note of various decision of the Supreme Court, the Court held that the legislative scheme is unambiguous. The legislature has consciously not provided any ground to challenge the “commercial wisdom” of the individual financial creditors or their collective decision before the Adjudicating Authority and that the decision of CoC’s ‘commercial wisdom’ is made non-justiciable.

“… the appeal is a creature of statute and that the statute has not invested jurisdiction and authority either with NCLT or NCLAT, to review the commercial decision exercised by CoC of approving the resolution plan or rejecting the same.”

deciding key economic question in the bankruptcy process, the only one correct forum for evaluating such possibilities, and making a decision was, a creditors committee, wherein all financial creditors have votes in proportion to the magnitude of debt that they hold.

It is not open to the Adjudicating Authority or Appellate Authority to reckon any other factor other than specified in Sections 30(2)or 61(3) of IBC.

The commercial wisdom of CoC has been given paramount status without any judicial intervention for ensuring completion of the stated processes within the timelines prescribed by the IBC. The opinion expressed by CoC after due deliberations in the meetings through voting, as per voting shares, is a collective business decision.

“… the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis.”

In an enquiry under Section 31, the limited enquiry that the Adjudicating Authority is permitted is, as to 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) the plan 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.

[Kalparaj Dharamshi v. Kotak Investment Advisors Ltd, 2021 SCC OnLine SC 204, decided on 10.03.2021]

*Judgment by: Justice BR Gavai

Appearances before the Court by:

For Kalparaj: Senior Advocates Mukul Rohatgi, Dr. Abhishek Manu Singhvi and Pinaki Mishra,

For Deutsche Bank and CoC: Senior Advocate K.V. Viswanathan

For Fourth Dimension Solutions Limited: Senior Advocates C.A. Sundaram, Gopal Sankar Narayanan and P.P. Chaudary,

For RP: Senior Advocates Shyam Divan

For KIAL: Senior Advocate: Senior Advocate Neeraj Kishan Kaul

National Company Law Tribunal
Hot Off The PressNews

National Company Law Tribunal (NCLT), Hyderabad bench approved NHPC’s Resolution Plan for taking over Jalpower Corporation Limited (JPCL) as going concern vide its order dated 24.12.2020 and uploaded the same on its website on 07-01-2021.

JPCL was executing 120 MW Rangit Stage-IV Hydroelectric Project in Sikkim. The Company is currently undergoing Corporate Insolvency Resolution Process (“CIRP”) which was initiated on April 09, 2019, vide order of Hon’ble NCLT.

NHPC Ltd., a PSU under Ministry of Power, had submitted its Resolution Plan and was declared the successful resolution applicant by Committee of Creditors (CoC) on 24.01.2020. CoC approved Resolution Plan was filed by Resolution Professional with Hon’ble NCLT Hyderabad Bench on 28.01.2020.

NHPC will make an upfront payment of Rs 165 Crore and cost of the project is considered as Rs 943.20 Crore.

Jalpower Corporation Limited is the second company after LancoTeesta Hydro Power Ltd (LTHPL) to be acquired through the NCLT process by NHPC.

Ministry of Power

[Press Release dt. 07-01-2020]

[Source: PIB]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): The Bench of Justice Bansi Lal Bhat (Acting Chairperson) and Justice Anant Bijay Singh (Judicial Member), Dr Ashok Kumar Mishra (Technical Member), in the present appeal observed,

“Once the Appellant is out of the fray, it has neither locus to call in question any action of any of the stakeholders qua implementation of the approved Resolution Plan nor can it claim any prejudice on the pretext that any of the actions post-approval of the Resolution Plan of Successful Resolution Applicant in regard to its implementation has affected its prospects of being a Successful Resolution Applicant.”

In the instant appeal, the appellant is the ‘Unsuccessful Resolution Applicant’ whose Resolution Plan was rejected by the Committee of Creditors.

Impugned Order passed by the Adjudicating Authority was assailed by virtue whereof the Adjudicating Authority while declining to accede to the prayer for reversal of money to the Successful Resolution Applicant in the event of dismissal of order from Supreme Court, directed the implementation of the approved Resolution Plan.

The above-stated impugned order was assailed on the ground that the erstwhile Committee of Creditors, in connivance with the Successful Resolution Applicant, accepted a re-negotiated fresh Resolution Plan and the application of the Committee of Creditors under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 was not maintainable and shouldn’t have been entertained by the Adjudicating Authority.

Further, On 04-02-2020 Adjudicating Authority had approved the Resolution Plant and in terms of the said plan the Successful Resolution Applicant had to bring in Rs 123 Crores for Resolution within 30 days, however, the Successful Resolution Applicant did not implement the Resolution Plan and the erstwhile Committee of Creditors of the Corporate Debtor, in connivance with the Successful Resolution Applicant, accepted a fresh resolution plan to the detriment of legal rights of the Appellant whose Resolution Plan was rejected on the ground that he could not provide for lump-sum time-bound payment within 30 days of the approval of its Resolution Plan.

Decision

In view of the above-stated Bench opined that the appellant had no locus to question the implementation of the approved Resolution Plan of the Successful Resolution Applicant.

Tribunal observed that,

If the terms of the approved Resolution Plan of Successful Resolution Applicant have been varied or time extended to facilitate its implementation and the creditors have not claimed any prejudice on that count and the Committee of Creditors comprising of the creditors as stakeholders has not objected to same rather been privy to it on account of hardship due to prevailing circumstances, the Appellant cannot be permitted to cry foul.

Hence, it was held that the appellant had no locus to maintain that the change in terms of the approved Resolution Plan in regard to the extension of time for induction of upfront amount as also the implementation of the Resolution Plan jeopardized its legal rights qua consideration of its Resolution Plan which had been rejected.

On finding no merit in the present appeal, it was dismissed. [ Hindustan Oil Exploration Company v. Erstwhile Committee of Creditors JEKPL (P) Ltd., Company Appeal (AT) (Insolvency) No. 969 of 2020, decided on 17-11-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): Full Bench of Justice Bansi Lal Bhat (ACJ) and Justice Anant Bijay Singh (Judicial Member) and Dr Ashok Kumar Mishra (Technical Member), while addressing the present application observed that,

A Resolution Applicant whose Resolution Plan stands approved by Committee of Creditors cannot be permitted to alter his position to the detriment of various stake holders after pushing out all potential rivals during the bidding process.

Appellant emerged as the Successful Resolution Applicant in the Insolvency Resolution Process of Astonefield Solar (Gujarat) Pvt Ltd. (Corporate Debtor) assailed the impugned order rejecting the withdrawal application of its resolution plan and cancellation/ revocation/ return/ refund of the Performance Bank Guarantee, on the ground that there is no legal basis or justification for holding that an application for withdrawal of a Resolution Plan post-approval is not maintainable.

Withdrawal of Resolution Professional

Resolution Professional submitted that the appeal is not maintainable in view of the same being squarely covered by the decision of the Appellate Tribunal in

Committee of Creditors of Educomp Solutions Ltd. v. Ebix Singapore Pte. Ltd., Company Appeal (AT) (Insolvency) No. 653 of 2020, wherein it was held that after approval of the resolution plan by the committee of creditors, the adjudicating authority has no jurisdiction to entertain the application withdrawal filed by the resolution applicant and that adjudicating authority cannot enter into the arena of majority decision of the CoC.

Analysis & Decision

Adjudicating Authority was of the view that it had no jurisdiction to permit the withdrawal of a Resolution Plan, which had been duly approved by the Committee of Creditors. Issue of similar nature was sub-judice before the Supreme Court.

Resolution Plan

Before approval of a Resolution Plan by the Committee of Creditors, the Corporate Insolvency Resolution Process passes through various stages.

I&B Code provides for insolvency resolution in a time-bound manner, the object sought to be achieved, inter alia, being maximization of value of assets of corporate persons and balancing the interests of all stakeholders.

Commercial Wisdom

Further, the bench also stated that primacy is given to the Committee of creditors empowered to take a business decision in regard to the feasibility and viability of a Resolution Plan based on their commercial wisdom.

CIRP Process | Bidding Process

This process is in the nature of a bidding process where, based on consideration of the provisions of a Resolution Plan with regard to the financial matrix, the capacity of the Resolution Applicant to generate funds, infusion of funds, upfront payment, the distribution mechanism and the period over which the claims of various stakeholders are to be satisfied besides the feasibility and viability of the Resolution Plan, a Resolution Applicant emerges as the highest bidder (H1) eliminating the Resolution Plans of Resolution Applicants, which are ranked H2 and H3.

Further, approval of a Resolution Plan by CoC would be binding on the corporate debtor and all the stakeholders only after the Adjudicating Authority passes an order under Section 31 of the I&B Code approving the said plan, it does not follow that the Successful Resolution Applicant would be at liberty to withdraw the Resolution Plan sabotaging the entire Corporate Insolvency Resolution Process.

The said move of Resolution Applicant may push the Corporate Debtor into disastrous consequences wherein the Corporate debtor may be liquidated.

There is no express provision in the I&B Code allowing a Successful Resolution Applicant to stage a U-turn and frustrate the entire exercise of Corporate Insolvency Resolution Process.

“Provision for submission of a Performance Bank Guarantee by a resolution applicant while submitting its resolution plan, as required under the amended provisions of IBBI [Insolvency Resolution Process of Corporate Persons] Regulations, 2016 is a step in this direction, but may not be deterrent enough to prevent a Successful Resolution Applicant from taking a U-turn.”

Tribunal opined that the sanctity of the resolution process needs to be maintained and the Resolution Applicant whose Resolution Plan is approved by the CoC cannot be permitted to withdraw the same.

In view of the above, the appeal was dismissed. [Kundan Care Products Ltd. v. Amit Gupta, 2020 SCC OnLine NCLAT 670, decided on 30-09-2020]

Legislation UpdatesRules & Regulations

The Insolvency and Bankruptcy Board of India (IBBI) notified the Insolvency and Bankruptcy Board of India (Liquidation Process) (Third Amendment) Regulations, 2020.

The Regulations require the committee of creditors to fix the fee payable to the liquidator.  Where the fee has not been fixed by the committee of creditors, the Regulations provide for a  fee as a percentage of the amount realised and of the amount distributed by the liquidator. There have been instances where a liquidator realises the amount while another liquidator distributes  the same to stakeholders. The amendment made to the Regulations today clarifies that where a  liquidator realises any amount, but does not distribute the same, he shall be entitled to a fee corresponding to the amount realised by him. Likewise, where a liquidator distributes any  amount, which is not realised by him, he shall be entitled to a fee corresponding to the amount distributed by him.

Read the regulations here: REGULATIONS

Insolvency and Bankruptcy Board of India

[Notification dt. 05-08-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Surya Kant and V. Ramasubramanian, JJ has set aside the NCLAT order dated 04.07.2019 in the Essar Steel India insolvency case and has held,

“The NCLAT judgment which substitutes its wisdom for the commercial wisdom of the Committee of Creditors and which also directs the admission of a number of claims which was done by the resolution applicant, without prejudice to its right to appeal against the aforesaid judgment, must therefore be set aside.”

NCLAT had, in the impugned order, held that in a resolution plan there can be no difference between a financial creditor and an operational creditor in the matter of payment of dues, and that therefore, financial creditors and operational creditors deserve equal treatment under a resolution plan. Accordingly, the NCLAT has re-distributed the proceeds payable under the approved resolution plan as per the method of calculation adopted by it so that all financial creditors and operational creditors be paid 60.7% of their admitted claims.

The present appeals and writ petitions were an aftermath of this Court’s judgment dated 04.10.2018 in ArcelorMittal India Private Limited v. Satish Kumar Gupta, (2019) 2 SCC 1.

The Court also answered some important questions which have been elaborated as follows:

Role of Resolution Professional

Resolution professional is a person who is not only to manage the affairs of the corporate debtor as a going concern from the stage of admission of an application under Sections 7, 9 or 10 of the Code till a resolution plan is approved by the Adjudicating Authority, but is also a key person who is to appoint and convene meetings of the Committee of Creditors, so that they may decide upon resolution plans that are submitted in accordance with the detailed information given to resolution applicants by the resolution professional.

“Another very important function of the resolution professional is to collect, collate and finally admit claims of all creditors, which must then be examined for payment, in full or in part or not at all, by the resolution applicant and be finally negotiated and decided by the Committee of Creditors.”

Role of the prospective resolution applicant

The prospective resolution applicant has a right to receive complete information as to the corporate debtor, debts owed by it, and its activities as a going concern, prior to the admission of an application under section 7, 9 or 10 of the Code. For this purpose, it has a right to receive information contained in the information memorandum as well as the evaluation matrix mentioned in Regulation 36-B.

Role of Committee of Creditors

Since it is the commercial wisdom of the Committee of Creditors that is to decide on whether or not to rehabilitate the corporate debtor by means of acceptance of a particular resolution plan, the provisions of the Code and the Regulations outline in detail the importance of setting up of such Committee, and leaving decisions to be made by the requisite majority of the members of the aforesaid Committee in its discretion.

“The Committee of Creditors does not act in any fiduciary capacity to any group of creditors. On the contrary, it is to take a business decision based upon ground realities by a majority, which then binds all stakeholders, including dissentient creditors.”

The decisions relating to management of the corporate debtor cannot be taken without the prior approval of at least 66% of the votes of the Committee of Creditors.

Constitution of a sub-committee by the Committee of Creditors

Sub-committees cannot be constituted for:

  • Exercising of the Committee of Creditors’ powers on questions which have a vital bearing on the running of the business of the corporate debtor.
  • approving a resolution plan.

However, sub-committees can be appointed for the purpose of negotiating with resolution applicants, or for the purpose of performing other ministerial or administrative acts, provided such acts are in the ultimate analysis approved and ratified by the Committee of Creditors.

Jurisdiction of the Adjudicating Authority and the Appellate Tribunal

The Adjudicating Authority generally cannot interfere on merits with the commercial decision taken by the Committee of Creditors. However, 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.

Secured and unsecured creditors; the equality principle

Financial creditors are in the business of lending money who are capital providers for companies, who in turn are able to purchase assets and provide a working capital to enable such companies to run their business operation. Whereas operational creditors are beneficiaries of amounts lent by financial creditors which are then used as working capital, and often get paid for goods and services provided by them to the corporate debtor, out of such working capital. Hence,

“If an “equality for all” approach recognising the rights of different classes of creditors as part of an insolvency resolution process is adopted, secured financial creditors will, in many cases, be incentivised to vote for liquidation rather than resolution, as they would have better rights if the corporate debtor was to be liquidated rather than a resolution plan being approved.”

This would defeat the entire objective of the Code which is to first ensure that resolution of distressed assets takes place and only if the same is not possible should liquidation follow.

Constitutional validity of Sections 4 and 6 of the Insolvency and Bankruptcy Code (Amendment) Act, 2019

Section 4

So far as Section 4 is concerned, it is clear that the original timelines under Section 12 of the Code in which a CIRP must be completed have now been extended to 330 days, which is 60 days more than 180 plus 90 days. The proviso to Section 12 reads:

“the corporate insolvency resolution process shall mandatorily be completed within a period of three hundred and thirty days from the insolvency commencement date, including any extension of the period of corporate insolvency resolution process granted under this section and the time taken in legal proceedings in relation to such resolution process of the corporate debtor.”

The Court, hence, while leaving the provision otherwise intact, struck down the word “mandatorily” as being manifestly arbitrary under Article 14 of the Constitution of India and as being an excessive and unreasonable restriction on the litigant’s right to carry on business under Article 19(1)(g) of the Constitution. The effect of this declaration is that ordinarily the time taken in relation to the corporate resolution process of the corporate debtor must be completed within the outer limit of 330 days from the insolvency commencement date, including extensions and the time taken in legal proceedings.

It was, however, explained that on the facts of a given case, if it can be shown to the Adjudicating Authority and/or Appellate Tribunal under the Code that only a short period is left for completion of the insolvency resolution process beyond 330 days, and that it would be in the interest of all stakeholders that the corporate debtor be put back on its feet instead of being sent into liquidation and that the time taken in legal proceedings is largely due to factors owing to which the fault cannot be ascribed to the litigants before the Adjudicating Authority and/or Appellate Tribunal, the delay or a large part thereof being attributable to the tardy process of the Adjudicating Authority and/or the Appellate Tribunal itself, it may be open in such cases for the Adjudicating Authority and/or Appellate Tribunal to extend time beyond 330 days.

Section 6

Section 30(2)(b) of the Code as substituted by Section 6 of the Amending Act is in fact a beneficial provision in favour of operational creditors and dissentient financial creditors as they are now to be paid a certain minimum amount, the minimum in the case of operational creditors being the higher of the two figures calculated under sub-clauses (i) and (ii) of clause (b), and the minimum in the case of dissentient financial creditor being a minimum amount that was not earlier payable. As a matter of fact, pre-amendment, secured financial creditors may cramdown unsecured financial creditors who are dissentient, the majority vote of 66% voting to give them nothing or next to nothing for their dues. In the earlier regime it may have been possible to have done this but after the amendment such financial creditors are now to be paid the minimum amount mentioned in sub-section (2).

It was also noticed that the discretion given to the Committee of Creditors by the word “may” again makes it clear that this is only a guideline which is set out by this sub-section which may be applied by the Committee of Creditors in arriving at a business decision as to acceptance or rejection of a resolution plan.

[Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta, 2019 SCC OnLine SC 1478, decided on 15.11.2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Bench of Justice S.J. Mukhopadhaya, Chairperson and Kanthi Narahari, Member (Technical), allowed an appeal seeking to quash the Corporate Insolvency Resolution Process against the Corporate Debtor.

The Operation Creditor had filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 which was admitted by the Adjudicating Authority and Corporate Insolvency Resolution Process was initiated against the Corporate Debtor.

Rajiv Shukla, Shivani Kapoor and Gorang Goyal, Advocates for the appellant submitted that the matter had been settled with the Operation Creditor. It was submitted that the Corporate Debtor had paid the entire amount shown in the Demand Notice before the Committee of Creditors was appointed.

The fact of settlement between the parties before the constitution of Committee of Creditors was accepted by Nikshubha Sethi, Advocate appearing for the Operational Creditor and Syed Sarfaraz Karim, Advocate appearing for the Interim Resolution Professional.

In view of the admitted settlement reached between the parties, the Appellate Tribunal exercised inherent powers under Rule 11 of the National Company Law Appellate Tribunal Rules, 2016 and set aside the impugned order whereby the Corporate Insolvency Resolution Process was initiated against the Corporate Debtor. The application under Section 9 IBC filed by the Operational Creditor was dismissed as withdrawn.[Girish Agarwal v. Lavis Signature Panel (P) Ltd., 2019 SCC OnLine NCLAT 490, decided on 13-09-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Appellate Tribunal (NCLAT): The Bench comprising of S.J. Mukhopadhaya, J. (Chairperson) and A.I.S Cheema, J. and Kanthi Narahari, Members, Judicial and Technical, respectively; declined to intervene and place any opinion for the appeal made by Ex-Directors and Promoters of Bhushan Power and Steel Limited which stated that:

“More than 270 days have been passed and the final order is yet to be passed by the Adjudicating Authority.”

The present appeal was filed by ‘Committee of Creditors’ against the order passed by Adjudicating Authority (National Company Law Tribunal), Principal Bench, New Delhi, wherein the order was reserved.

Facts and Background of the case explained:

Appellate Tribunal by order dated 04-02-2019 remitted the matter back to the Adjudicating Authority for consideration of the ‘Resolution Plan’ submitted by ‘JSW Steel’.

Thereafter, the matter was heard and Judgment had been reserved. While the Judgment was still pending, Punjab and Haryana High Court passed certain directions directing the Adjudicating Authority to follow a certain  procedure giving reference to the Supreme Court’s decision and held that “any order passed by the Adjudicating Authority/NCLT, which is contravention, contradiction or derogation of the directions of Supreme Court should not be taken into consideration.”

Senior Counsel, Mukul Rohatgi with Advocates Arvind Kr Gupta and Henna George, appeared for the erstwhile directors and promoters of Bhushan Power and Steel Limited.

Solicitor General and Senior Advocate Tushar Mehta with Advocates Bishwajit Dubey, Spandan Biswal, Srideepa Bhattacharya, Sylona Mohapatra and Surabhi Khattar, appeared for the Committee of Creditors of Bhushan Power and Steel Limited.

Decision in the present appeal:

NCLAT declined to entertain the present appeal stating that the matter is still pending before the Adjudicating Authority, therefore they are not inclined to entertain the appeal by erstwhile directors and promoters of Bhushan Power and Steel Limited.

Bench also commented that it is unclear on how Punjab and Haryana High Court’s vacation Bench passed an order as noted above when the matter is still pending. It was also stated that the mentioned Court has no territorial jurisdiction over Delhi, where Principal bench of NCLT, New Delhi is situated.

Further, the Bench stated that, Adjudicating Authority is supposed to decide the case on merit in accordance with law uninfluenced by any order except the decision of this Appellate Tribunal and Supreme Court.

Hence, in view of the above, the appeal stands disposed of. [Committe of Creditors of Bhushan Power and Steel Ltd. v. Mahendra Kumar Khandelwal, 2019 SCC OnLine NCLAT 201, decided on 11-06-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Bench of Justice S.J. Mukhopadhaya, Chairperson and Justice A.I.S Cheema, Member (Judicial) and Kanthi Narahari, Member (Technical) allowed the appellant (shareholder of the Corporate Debtor) to pay the total dues of the Operational Creditor after the application filed against it under Section 9 of the Insolvency and Bankruptcy Code, 2016 was admitted by the the National Company Appellate Tribunal, Bengaluru.

The appellant submitted that though the Section 9 application was admitted against it, however, the Committee of Creditors was not yet constituted. He submitted that he was ready to pay the total dues of the Operational Creditor which brought the application before NCLT.

Three demand drafts brought by the appellant were produced before the Appellate Tribunal, which were directed to be handed over to the Operational Creditor in the discharge of Corporate Debtor’s liability towards it. In view of the fact that the total amount was paid to the Operational Creditor and the Committee of Creditors was not yet constituted, the Appellate Tribunal set aside the impugned order of NCLT admitting the Section 9 application against the Corporate Debtor. [A.P. Abdul Kareem v. Om Industrial Corpn., 2019 SCC OnLine NCLAT 154, Order dated 16-04-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): The Bench of Justice S.J. Mukhopadhaya, Chairperson and Justice Bansi Lal Bhat, Member (Judicial) allowed an appeal filed against the order of National Company Law Tribunal (New Delhi) whereby it had admitted respondent’s application under Section 7 of the Insolvency and Bankruptcy Code, 2016 and appointed an Interim Resolution Professional.

Senior Advocate K. Venugopal assisted by Pawan Sharma, Anuj Shah and Rishabh Sharma, Advocates representing the appellant–Shareholder of the Corporate Debtor, submitted that NCLT failed to notice inter alia that the parties had already settled the claim. The factum of the settlement was accepted by Ashish Agarwal, Advocate appearing for the respondent.

It was informed by the Interim Resolution Professional that advertisement was issued asking for claims but Committee of Creditors was not yet constituted.

The Appellate Tribunal relied on Swiss Ribbons (P) Ltd. v. Union of India, 2019 SCC OnLine SC 73 wherein the Supreme Court held, “at any stage where the committee of creditors is not yet constituted, a party can approach the NCLT directly, which Tribunal may, in exercise of its inherent powers under Rule 11 of the NCLT Rules, 2016, allow or disallow an application for withdrawal or settlement.”

In such view of the matter, the impugned order of NCLT was set aside as the parties had settled the claim before the constitution of Committee of Creditors and the respondent did not want to proceed with the matter. The appeal was thus allowed. [Arjun Puri v. Kunal Prasad, 2019 SCC OnLine NCLAT 5, dated 31-01-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Two-Member bench comprising of S.J. Mukhopadhya (Chairperson) and Bansi Lal Bhat, Member (Judicial) disposed of a set of company appeals by directing National Company Law Tribunal, Kolkata to set up a monitoring committee for implementation of the approved revised resolution plan for Binani Cement Ltd. submitted by UltraTech Cement Ltd.

The appeals arose out of the order of the NCLT wherein it rejected the resolution plan submitted by Rajputana Properties (P). Ltd. after Corporate Insolvency Resolution Process was commenced for Binani Cement under Insolvency and Bankruptcy Code, 2016. The said plan was approved by the Committee of Creditors which was challenged by certain creditors alleging that they were not dealt with equitably as compared to Financial Creditors. While adjudication, NCLT accepted the contention of the said creditors and also observed that the Committee had not given proper consideration to the revised resolution plan submitted by UltraTech Cement. Resultantly, NCLT rejected the plan of Rajputana Properties and directed the Committee to consider UltraTech’s plan in accordance with the provisions of I&B Code.

The Appellate tribunal after perusing various provisions of the code as also the record of the case noted that Rajputana’s plan was indeed discriminatory against the abovesaid creditors when compared to Financial Creditors and was thus inconsistent with the provisions of I&B Code. Furthermore, finding of NCLT regarding improper consideration of UltraTech’s revised plan was also upheld by the Appellate Tribunal. It was noted that after NCLT’s order, the Committee had considered the revised plan submitted by UltraTech which was approved. Also, in an appeal filed by Binani Industries, it was held that Corporate Insolvency Resolution Process had started on admission of an application under Section 7, 9 or 10, the same cannot be set aside, except for illegality to be shown. Accordingly, plea of Binani Industries to repay the dues of creditors and settle the matter was dismissed.

In view of the aforesaid, the appeals filed by Rajputana Properties and Binani Industries were dismissed. The revised plan submitted by Ultra tech Cement which was already approved by the Committee of creditors was accepted and NCLT, Kolkata was directed to constitute a committee for the implementation of the same. The appeals were disposed of accordingly.[Binani Industries Ltd. v. Bank of Baroda,2018 SCC OnLine NCLAT 521, dated 14-11-2018]