Approval of Resolution Plan - Blue Frog Media Private Limited

ORDER Per: V.G. Bisht, Member (Judicial) 1. The present application was filed by Resolution Professional Mr. Vishram Narayan Panchpor (hereinafter called as “the Applicant”) under section 30 (6) of the Insolvency and Bankruptcy Code, 2016 (“code”) r/w Regulation 39(4) of the IBBI

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 for seeking approval of the resolution plan of Mr. Mahesh Mathai (hereafter called as the “Successful Resolution Applicant/SRA”) under the provisions of Section 31(1) of the code, for the Corporate Debtor Blue Frog Media Private Limited (hereinafter called as the “Corporate Debtor”) and for passing order/appropriate direction that this Tribunal may deem fit in the present matter. 2. The predecessor bench of this Tribunal had heard the present Application and reserved the matter for Orders. The Resolution Plan submitted by the Mr. Mathai was rejected by this Tribunal vide order dated 18.08.2023 on the ground that the SRA being a promoter was ineligible to submit a resolution plan under Section 29A of the Code, the said order was assailed before the Hon’ble NCLAT wherein the Hon’ble NCLAT set aside the order dated 18.08.2023 with the finding that Section 29A does not make per se promoters and directors ineligible to submit a plan unless they are ineligible under clauses (a) to (g). The relevant paragraphs of the Order dated 11.01.2024 are reproduced hereinbelow for ready reference: “13. The present is not a case where any of the clauses of Section 29A are being pressed for ineligibility of Respondent No.2. Ineligibility is being held only on the ground that Respondent No.2 was promoter of the Corporate Debtor till 2018 when he resigned. The view taken by the Adjudicating Authority is not as per the true and correct interpretation of Section 29A. Section 29A does not make per se promoters and directors ineligible to submit a plan unless they are ineligible under clauses (a) to (g). Since in the present case, it is not the case that any of the clauses (a) to (g) are attracted on Respondent No.2, the mere fact that Respondent No.2 was promoter and director shall not make him ineligible to submit a Resolution Plan.

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 14. We, thus, are of the view that the Adjudicating Authority committed error in holding that the Respondent No.2 is ineligible to submit a Resolution Plan. The rejection of IA No.2828 of 2021 is thus, unsustainable 15. In view of the foregoing discussions and our conclusions, we set aside the order of the Adjudicating Authority dated 18.08.2023 and revive IA No.2828 of 2021 in CP (IB) No.4360/MB/C-I/2018 before the Adjudicating Authority which may be heard and decided afresh in accordance with the law. Resolution Plan having been approved on 08.11.2021, the Adjudicating Authority shall endeavour to dispose of the application at an early date.” Accordingly, the present Application is being heard afresh in view of aforesaid findings of the Hon’ble Appellate Tribunal. 3. The CIRP was initiated against the Corporate debtor vide Order dated 19.05.2021 and the Applicant herein was appointed as the IRP. The Applicant made a public announcement on 22.05.2021. The IRP constituted the Committee of Creditors (hereinafter referred to as the CoC). Subsequently, the First CoC meeting took place on 16.06.2021 wherein the IRP was appointed as the Resolution Professional. 4. The Applicant submits that till date 7 meetings of the CoC were held since the commencement of CIRP. A brief about the meetings being held is reproduced in the tabular chart herein below: Sr. No. CoC Meeting Business Transacted 1. First CoC Meeting Constitution of CoC, 16.06.2021 Appointment of RP 2. Second CoC Meeting Status of claims, 07.07.2021 Professional Fees of Registered Valuers

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 3. Third CoC Meeting Revised composition of 30.07.2021 CoC, Criteria for Prospective Resolution Applicants, Publication of Form G & Cost of Publication 4. Fourth CoC Meeting Decision about publication 27.08.2021 of Form G for second time 5. Fifth CoC Meeting Update of second round of 22.09.2021 invitation of EOI 6. Sixth CoC Meeting Evaluation Matrix and 27.09.2021 Request for Resolution Plan 7. Seventh CoC Meeting Updated CIRP Costs, 08.11.2021 Approval of Resolution Plan

5. Form G was published in two newspapers on 02.08.2021 for the first time. Subsequently, the Applicant received only one EOI, which rejected since it did not meet the eligibility criteria. 6. Since, publication of Form G for the first attempt did not yield any result, the CoC in the fourth meeting decided to publish form G again. Accordingly, Form G was published on 29.08.2021. 7. Pursuant to the fresh Form G, the Applicant received 3 EOI’s. Out of which 2 parties qualified the revised eligibility criteria and 1 was rejected as did not meet the eligibility criteria. 8. The two Prospective Resolution Applicants were Mr. Mahesh Mathai and Mr. M.S. Raksha Ramaiah. In the Sixth CoC meeting held on 27.09.2021, the CoC approved the Request for Resolution Plan and the evaluation Matrix.

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 9. However, the Applicant received only one Resolution Plan of Mr. Mahesh Mathai on 28.10.2021, who is also a financial creditor of the Corporate Debtor, submitted the plan in his individual capacity. 10. The Applicant submits that he has examined the plan accordingly to the relevant provision of the Code and upon being satisfied with plan submitted by Mr. Mathai placed the said plan for consideration before the CoC. 11. The Applicant submits that in the CoC meeting held on 08.11.2021 some modifications and revisions were suggested in the plan, Mr. Mathai being a Financial Creditor was part of the meeting requested for some time to carry out the suggested changes. 12. Mr. Mahesh Mathai submitted a revised Resolution Plan and the Applicant upon examining the same, placed the revised plan before the CoC for consideration. The CoC considered the revised plan and resolved to approve the plan by a majority vote of 91.86%. 13. The Resolution Professional has annexed Form H to the Application under Regulation 39(4) of the CIRP Regulations to certify that the resolution plan approved by the CoC meets all the requirements of the IBC and its Regulations. 14. The SRA proposes to make the following payments

Amount in Rupees.

Sr. No. Particulars of Tenure Amount (In Rs.) proposed payment 1. CIRP Costs Within 15 days 11,26,394/- 2. To Operational Creditors

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 2.1 Operational Admitted claims 5,128 Creditors (other within 15 days than statutory dues including 1 claim towards past employee dues), pro rata basis 2.2 Operational No claims NIL Creditors (Other received than statutory dues) 2.3 Regulatory dues As per books of 18,478/- (Statutory dues) Corporate Debtor 2.4 Workmen and No claims Nil employees, if any received 2.5 Employees, PF & No claims Nil state insurance received and other statutory and regulatory authorities etc. 3. Payment to Financial Creditors 3.1 Unsecured Admitted claims 4,00,000/- Financial within 15 days Creditors (including related parties), pro-rata basis Total proposed payment 15,50,000.00

15. In the present case, the SRA has proposed to infuse funds after approval of Resolution plan by this Tribunal and against this infusion the SRA i.e. Mr. Mahesh

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 mathai will get 1,54,999 equity shares of Rs.10/- each and 1 equity share of Rs.10/-each will be allotted to Ms. Srila Chatterjee. 16. The SRA has proposed to make the entire payment from its own sources. The Successful Resolution Applicant has deposited an amount of Rs.50,000/- towards performance guarantee (security deposit). It is submitted that towards the balance the SRA has handed over a bank cheque for an amount of Rs.15,00,00,000/- drawn in favour of Blue Frog Media Private Limited under CIRP dated 28.10.2021 drawn on Standard Chartered Bank, Kemps Corner, Mumbai. 17. The Applicant submits that the Resolution Plan and the approval of the Resolution Plan are in accordance with all the provisions of the Code and CIRP Regulations and that it does not contravene any of the provisions of the law for the time being. The Successful Resolution Applicant has also confirmed its eligibility under Section 29A of the Insolvency Bankruptcy Code, 2016 ("Code"). Furthermore, the issue regarding the eligibility of the SRA is settled by the Hon’ble NCLAT. 18. The Resolution Professional has annexed Form H of the Application under Regulation 39(4) In FORM H 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.

FORM H COMPLIANCE CERTIFICATE (Under Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 I, Vishram Narayan Panchpor, an insolvency professional enrolled with ICSI Institute of Insolvency Professionals and registered with the Board with registration number IBBI/IPA-002/IP-N00269/2017-18/10782, am the resolution professional for the corporate insolvency resolution process (CIRP) of Blue Frog Media Private Limited (CD).

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018

2. The details of the CIRP are as under:

Sl. Particulars Description No. 1 Name of the CD Blue Frog Media Private Limited 2 Date of Initiation of CIRP 1 9 M ay 2021 3 Date of Appointment of 19 May 2021 IRP 4 Date of Publication of 22 May 2021 Public Announcement 5 Date of Constitution of 10 June 2021 CoC 6 Date of First Meeting of 16 June 2021 CoC 7 Date of Appointment of 16 June 2021 RP 8 Date of Appointment of 27 June 2021 Registered Valuers 9 Date of Issue of Invitation 2 August 2021 for EoI 10 Date of Final List of 23 September 2021 Eligible Prospective Resolution Applicants 11 Date of Invitation of 28 September 2021 Resolution Plan 12 Last Date of Submission 28 October 2021 of Resolution Plan 13 Date of Approval of 8 November 2021 Resolution Plan by CoC 14 Date of Filing of 14 November 2021 Resolution Plan with Adjudicating Authority 15 Date of Expiry of 180 15 November 2021 days of CIRP 16 Date of Order extending Not Applicable the period of CIRP 17 Date of Expiry of Not Applicable Extended Period of CIRP 18 Fair Value Plant and Machinery Mr. Rs. Yogesh 5000/- Rasal Mr. Kedar Rs. Chikodi 5500/- Financial Assets

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 Mr. Rs. Modilal 89,245/- Pamecha Me. Rs. Sanket 89,245/- Deshpande 19 Liquidation value Plant and Machinery Mr. Rs. Yogesh 3500/- Rasal Mr. Kedar Rs. Chikodi 4400/- Financial Assets Mr. Rs. Modilal 68,635/- Pamecha Me. Rs. Sanket 72,071/- Deshpande 20 Number of Meetings of 7 (Seven) CoC held

3. I have examined the Resolution Plan received from Resolution Applicant Mr. Mahesh Mathai, Raj Mahal, 3rd Floor, 33, Altamount Road, Mumbai 400026 and approved by Committee of Creditors (CoC) of Blue Frog Media Private Limited.

4. 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 Mr. Mahesh Mathai has submitted an affidavit pursuant to section 30(1) of the Code confirming its eligibility under section 29A of the Code to submit resolution plan. The contents of the said affidavit are in order. (iii) the said Resolution Plan has been approved by the CoC in accordance with the provisions of the Code and the CIRP Regulations made thereunder. The Resolution Plan has been approved by 91.86 % of voting share of financial creditors after considering its feasibility and viability and other requirements specified by the CIRP Regulations.

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 (iv) The voting was held in the meeting of the CoC on 8 November 2021 where 4 (Four) the members of the CoC were present. 2 Members did not attend the Meeting and did not exercise their voting rights. 7. The amounts provided for the stakeholders under the Resolution Plan is as under: (Amount in Rs. lakh) Sl. Category of Sub-Category Amount Amount Amount Amount N Stakeholder* of Stakeholder Claimed Admitted Provided Provide o. under the d to the Plan# Amount Claimed (%) 1 2 3 4 5 6 7 1 Secured (a) Creditors Not Applicable since the Corporate Debtor did Financial not having a not have any Secured Financial Creditors Creditors right to vote under sub-section (2) of Not Applicable section 21 (b) Other than (a) above: Not Applicable (i) who did not vote in favour of the resolution Not Applicable Plan (ii) who voted in favour of the resolution plan Total[(a) + (b)] 2 Unsecured (a) Creditors 447.86 447.86 3.31 0.74% Financial not having a Creditors right to vote under sub-section (2) of section 21 (b) Other than (a) above: (i) who did not vote in favour 7.92 7.68 0.05 0.69% of the IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 Sl.

Category of Sub-Category Amount Amount Amount Amount N Stakeholder* of Stakeholder Claimed Admitted Provided Provide o. under the d to the Plan# Amount Claimed (%) 1 2 3 4 5 6 7 resolution Plan (ii) who voted in favour of 86.77 86.64 0.64 0.74% the resolution plan Total[(a) + 542.55 542.18 4.00 0.74% (b)] 3 Operational (a) Related NIL NIL NIL NIL Creditors Party of Corporate Debtor (b) Other than (a) above: (i)Governmen t (ii)Workmen NIL 0.18 0.18 100% (iii)Employees (iv) Other Operational 9.34 8.20 0.05 0.23% creditors Total[(a) + 9.34 8.38 0.24 2.86% (b)] 4 Other debts NIL NIL NIL NIL NIL and dues Grand Total 542.55 542.18 4.24 0.78% *If there are sub-categories in a category, please add rows for each sub-category. # Amount provided over time under the Resolution Plan and includes estimated value of non-cash components. It is not NPV. 10. The CIRP has been conducted as per the timeline indicated as under: Section of the Description of Activity Latest Timeline Actual Date Code / under regulation Regulation No. 40A Section 16(1) Commencement of CIRP and T 19 May 2021 Appointment of IRP

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 Regulation 6(1) Publication of Public T+3 22 May 2021 Announcement Section 15(1)(c) Submission of Claims T+14 2 June 2021 /Regulation 12 (1) Regulation Verification of Claims T+21 9 June 2021 13(1) Section 26(6A) / Application for Appointment T+23 Not Applicable Regulation 15A of Authorised Representative, if necessary Regulation Filing of Report Certifying T+23 10 June 2021 17(1) Constitution of CoC Section 22(1) First Meeting of the CoC T+30 16 June 2021 and regulation 17(2) Regulation 35A Determination of fraudulent T+115 2 August 2021 and other transactions Regulation 27 Appointment of two T+47 27 June 2021 Registered Valuers Regulation 36 Submission of Information T+54] 12 July 2021 (1) Memorandum to CoC Regulation 36A Invitation of EoI T+75 2 August 201 29 August 2021 Publication of Form G T+75 2 August 2021 29 August 2021 Provisional List of Resolution T+100 23 September Applicants 2021 Final List of Resolution T+115 28 September Applicants 2021 Regulation 36B Issue of Request for T+105 Resolution Plan, which includes Evaluation Matrix and Information Memorandum to Resolution Applicants Section 30(6) / Submission of CoC approved T+165 8 November Regulation Resolution Plan 2021 39(4) Section 31(1) Approval of Resolution Plan T=180

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 Section 30(2) of the Code

19. 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 distribute 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.

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 20. 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 CD. 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 AA in the past. d) The terms of the plan and its implementation schedule. e) The management and control of the business of the CD during its term. f) Adequate means of Supervising its implementation. g) The Resolution Plan Demonstrate 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 21. 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.

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 d) The implementation and supervision of Resolution Plan by the RP and the CoC as specified u/s 30(2)(d) of the Code.

22. 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. 23. 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 91.86% votes. 24. 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). 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 and is limited to scrutiny of the Resolution Plan “as approved” by the requisite percent of voting share of financial creditors. Even in that enquiry, the grounds on which the Adjudicating Authority can reject the Resolution Plan is in reference to matters specified in Section 30(2) when the Resolution Plan does not conform to the stated requirements.

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 25. In view of the discussions and the law thus settled, the instant Resolution Plan meets the requirements of Section 30(2) of the Code and Regulations 37, 38, 38 (1A) and 39 (4) of the Regulations. Since, the issue regarding the eligibility of the SRA is decided by the Appellate Tribunal, 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.

26. The Resolution Plan annexed to the Application is hereby approved. It shall become effective from this date and shall form part of this order with the following directions: a. It shall be binding on the Corporate Debtor, its employees, members, creditors, including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force is due, guarantors and other stakeholders involved in the Resolution Plan. b. The approval of the Resolution Plan shall not be construed as waiver of any statutory obligations/liabilities of the Corporate Debtor 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 para’s 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

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 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.” c. The Memorandum of Association (MoA) and Articles of Association (AoA) shall accordingly be amended and filed with the Registrar of Companies (RoC), Mumbai, Maharashtra for information and record. The Resolution Applicant, for effective implementation of the Plan, shall obtain all necessary approvals, under any law for the time being in force, within such period as may be prescribed. d. The moratorium under Section 14 of the Code shall cease to have effect from this date. e. 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.

IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH- I IA No.2828 of 2021 In CP (IB) No. 4360 /MB/C-I/2018 f. 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. g. The Applicant shall forthwith send a certified copy of this Order to the CoC and the Resolution Applicant, respectively for necessary compliance.

27. IA No. 2828 of 2021 in CP(IB) No. 4360 of 2023 is allowed

Sd/- Sd/- PRABHAT KUMAR JUSTICE V.G. BISHT Member (Technical) Member (Judicial) 22.02.2024 Priyal