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Alloysmin Industries & Ors vs Punkaj Jain, R.P, Fenace Auto Ltd & Anr

National Company Law Appellate Tribunal28 March 2019

Ratio decidendi

The rule this decision rests on

Where a resolution plan approved by the Committee of Creditors and the Adjudicating Authority treats operational creditors less favourably than financial creditors, and the successful resolution applicant undertakes to revise the plan so that the operational creditors receive the same percentage of their claims as the financial creditors, the appellate tribunal may approve the revised plan as a disposal of the appeals, with the revised terms substituted in the approved plan and binding on the resolution professional, the successful resolution applicant, the Adjudicating Authority and other stakeholders. Where the appellants have not alleged fraud before the Adjudicating Authority, the appellate tribunal will not decide any issue of fraud in the appeal.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHICompany Appeal (AT) (Insolvency) No. 769 of 2018IN THE MATTER OF:

Alloysmin Industries & Ors. ...Appellants

Vs.

Punkaj Jain, R.P, Fenace Auto Ltd & Anr. ...Respondents

Present: For Appellant: - Ms. Divya Aggarwal, Advocate.

For Respondents: - Mr. Hitesh Sachar and Mr. Anuj Jain, Advocates for R-1.

Ms. Chetan Sharma, Senior Advocate with Ms. Aakanksha Kaul, Advocate for R-2.

Company Appeal (AT) (Insolvency) No. 05 of 2019

IN THE MATTER OF:

Vesuvius India Ltd. & Ors. ...Appellants

Vs.

Fenace Auto Ltd. & Ors. ...Respondents

Present: For Appellants: - Mr. A.R. Chowdhury and Ms. Vatsala Singh, Advocates.

For Respondents: - Mr. Hitesh Sachar and Mr. Anuj Jain, Advocates for R-1.

Ms. Chetan Sharma, Senior Advocate with Ms. Aakanksha Kaul, Advocate for R-2.

O R D E R

28.03.2019─ In the 'Corporate Insolvency Resolution Process'

against 'Fenace Auto Ltd.', the 'Committee of Creditors' approved the 2

'Resolution Plan' submitted by the 'Resolution Applicant'- 'M/s. Badve

Engineering Ltd.'. The said 'Resolution Plan' was approved by the

Adjudicating Authority (National Company Law Tribunal), New Delhi, by

order dated 17th October, 2018. The Appellants, who are the 'Operational

Creditors', including the intervenors being aggrieved by the impugned

order dated 17th October, 2018 preferred these appeals on the ground

that they have been discriminated as there being huge difference between

the percentage of the claim amount allowed in favour of the 'Financial

Creditors' and the 'Operational Creditors'.

2. Earlier, on 5th March, 2019, when the matter was taken up,

following order was passed:

"05.03.2019: Learned counsel for the Successful

Resolution Applicant- 'M/s. Badve Engineering Ltd.'

on instruction submits that the Successful Resolution

Applicant is ready to equate Operational Creditors

ranging from Rs. 5 Lakhs to Rs.10 lakhs onwards by

paying similar percentage of the claim amount of

26.36% as allowed in favour of all the 'Financial

Creditors'. He prays for and allowed ten days' time to

file a supplementary affidavit substituting the Clause

(B) for Operational Creditors, as shown at page 38 of

the Resolution Plan and approved by the Adjudicating

Authority.

Company Appeal (AT) (Insol.) Nos. 769 of 2018 & 05 of 2019 3

We make it clear that the Appellants having not

alleged any fraud before the Adjudicating Authority,

we are not going to decide such issue in these

appeals.

Post these appeals 'for orders' on 28th March,

2019."

3. A supplementary Affidavit has been filed by 'M/s. Badve

Engineering Ltd.'- ('Successful Resolution Applicant') wherein the

following statement has been made:

"2. That the present supplementary affidavit is being filed

pursuant to Order dated 05.03.2019 passed by this

Hon'ble Commission. In the course of the hearing on

05.03.2019, the answering Respondent (through its

Counsel) stated that it was ready to equate Operational

Creditors ranging from Rs. 5 lakhs to Rs. 10 lakhs

onwards by paying similar percentage of claim amount of

26.36% as allowed in favour of all the 'Financial Creditors'.

Category Amount Percentag Payout e Dues ranging Rs.2,07,02,992 20% Rs.41,40,598.00 from Rs.5,00,000- Rs. 10,00,000 Dues over Rs. Rs.18,17,97,836 10% Rs.1,81,79,784.0 10,00,000 Total Rs.20,25,00,828 Rs.2,23,20,382

Company Appeal (AT) (Insol.) Nos. 769 of 2018 & 05 of 2019 4

3. That in terms of the approved Resolution Plan (Para

3.1.2), the payout for Operational Creditors with dues

ranging from Rs. 5,00,000 - 10,00,000 and with dues over

Rs. 10,00,000 was proposed to be as under:

4. That pursuant to Order dated 05.03.2019 the

Resolution plan is sought to be amended and the payout

to Operational Creditors with dues ranging from

Rs.5,00,000- 10,00,000 and with dues over Rs.10,00,000

is proposed to be as under:

Category Amount Percentage Payout

Dues Rs.2,07,02,992 26.36% Rs.54,57,309 ranging from Rs. 5,00,000- 10,00,000 Dues over Rs.18,17,97,836 26.36% Rs.4,79,21,910 Rs.10,00,0 00 Total Rs.20,25,00,828 Rs.5,33,79,218

5. That thus, the Respondent No.2/ the successful

Resolution Applicant has proposed an additional payout of

Rs. 13,16,711/- to Operational Creditors with dues

ranging from Rs. 5,00,000-10,00,000 and of

Rs.2,97,42,126 to Operational Creditors with dues over

Rs. 10,00,000. The total additional payout is thus,

proposed to be Rs. 3,10,58,836.

6. That the said additional payout will ensure that

Operational Creditors with dues ranging from

Company Appeal (AT) (Insol.) Nos. 769 of 2018 & 05 of 2019 5

Rs.5,00,000-10,00,000 and with dues over Rs.10,00,000

are equated with Financial Creditors who are entitled to

receive 26.36% of their claim amount in terms of the

approved Resolution Plan."

4. It is stated that in terms with the revised 'Resolution Plan', cheques

have been issued.

5. Learned counsel appearing on behalf of the Appellants-

('Operational Creditors') and the intervenors ('Operational Creditors')

while accepted the revised 'Resolution Plan', as proposed and quoted

above are in accordance with law and that the 'Operational Creditors' are

satisfied, submitted that they have not received the cheques as on date.

6. Learned counsel for the 'Successful Resolution Applicant' submits

that the 'Successful Resolution Applicant' will provide the cheques if not

yet received.

7. In the circumstances, we approve the revised part of the 'Resolution

Plan' submitted by 'M/s. Badve Engineering Ltd.'- ('Successful Resolution

Applicant') which in addition to other conditions already made therein.

The statement made by 'M/s. Badve Engineering Ltd.' as quoted above,

is substituted in the 'Resolution Plan' in question.

8. The 'Resolution Professional', 'M/s. Badve Engineering Ltd.'-

('Successful Resolution Applicant'), the Adjudicating Authority and other

Company Appeal (AT) (Insol.) Nos. 769 of 2018 & 05 of 2019 6

stakeholders are bound by and will act as per the substituted 'Resolution

Plan' as approved.

Both the appeals stand disposed of with aforesaid observations and

directions. No cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice A.I.S. Cheema) Member(Judicial) Ar/g

Company Appeal (AT) (Insol.) Nos. 769 of 2018 & 05 of 2019

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