Approval of Resolution Plan - Indus Integrated Information Management Limited
- CitationIA (IB) No. 1753- (KB)-2023 in CP(IB) No. 406-(KB)-2021
Ratio decidendi
The rule this decision rests on
On the approval of a resolution plan, the Adjudicating Authority must be satisfied that the plan, as approved by the Committee of Creditors, complies with sections 30 and 31 of the Insolvency and Bankruptcy Code, 2016 and regulations 38 and 39 of the CIRP Regulations; the Authority's role is to ensure such compliance, and it does not re-examine the commercial merits of the plan approved by the CoC. Reliefs, waivers and concessions sought under a resolution plan are granted by the Adjudicating Authority only insofar as they relate directly to matters within the Code and the Companies Act, 2013 and within the powers of the Tribunal; reliefs falling within the domain of other government departments or authorities are not granted by the Tribunal and are to be pursued before those competent authorities. A resolution plan must be consistent with extant law, and reliefs sought with respect to subsisting contracts or agreements cannot be granted in the absence of the parties to them. Upon approval under section 31(1), claims not provided for in the resolution plan, including pre-CIRP claims that have not been claimed and statutory dues, stand extinguished and no proceedings in respect of them may be continued, in accordance with Ghanashyam Mishra and Sons Pvt Ltd v Edelweiss Asset Reconstruction Company Ltd. Approval of a resolution plan under section 31 does not by itself operate as a discharge of a guarantor's liability, in accordance with Lalit Kumar Jain v Union of India.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Applicationunder section 30(6) andsection 31(1) oftheInsolvency& Bankruptcy Code, 2016read withregulation39(4) oftheInsolvencyand BankruptcyBoard of India(Insolvency ResolutionProcess for CorporatePersons)Regulations,2016for approvalof ResolutionPlan.
IntheMatter of: Ganapati Stocks Private Limited …Financial Creditor And Indus Integrated Information ManagementLimited ….Corporate Debtor And In thematter of: Kamal Nayan Jain,ResolutionProfessional ….Applicant
Date ofPronouncement of order: 28.02.2024
Coram: Smt Bidisha Banerjee : Member (Judicial) ShriD. Arvind : Member (Technical)
Counselappeared physically / through video Conferencing Mr. Shaunak Mitra, Adv. ]For theRP Ms.MukulikaSaha, Adv. Mr. Kamal Nayan Jain, RP
Mr. SunilKumar Gupta, Adv. ]For theApplicant in IA(I.B.C)/1740(KB)2023 and Mr. Subhankar Chatterjee, Adv. ]IA(I.B.C)/1650(KB)2023
DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021 Mr. SoumavaMukherjee, Adv. ]For R-1 to R-6 and R-9 and R-12 in ]IA(I.B.C)/1811(KB)2023
O RDE R Per Bidisha Banerjee, Member (Judicial):
1. Heard theLd. Sr. Counsel / Ld. Counsel forthe parties. 2. This application has been preferred to seek approval of Resolution Plan in its entirety along with its annexures, Schedule, Appendices and claims contained therein as submitted by Skill Tree Consulting Private Limited with reliefs and concessions sought for under the Plan. The Application has been preferred under Rule34oftheNCLT Rules. 3. Skill Tree Consulting Private Limited was approved by the CoC with 100% voting shares. A copy of the Minutes of the Minutes of the 14th CoC meeting held on 04.10.2023 along with the physical voting results is annexed with the application as Annexure -I. 4. The Applicant issued Letter of Intent to the Successful Resolution Applicant on 07.10.2023. The Successful Resolution Applicant ( Skill Tree Consulting Private Limited ) in terms of Regulation 36B (4A) and RFRP has also submitted Performance Security of Rs. 25 Lakhs plus Rs. 10 Lakhs submitted as EMD converted into performance security, making the total Performance Security deposit of Rs. 35 Lakhs being 10% of the Resolution Plan as Performance Security.
5. TheCIRP process and Compliances a.The Corporate Debtor was admitted into CIRP vide order dated 15.06.2022 and Mr. Kamal Nayan Jain was appointed as the IRP of the Corporate Debtor. b. The Applicant on 16.06.2022, in terms of Regulation 6 (1) of the CIRP Regulations made a public announcement to invite claims along with prooffrom thecreditors oftheCorporate Debtor.
DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021 c.The public announcement was also made in the website of the Corporate Debtor as well as the designated website of the IBBI in terms of the applicable provisionsof theCoderead with CIRP regulations. d. The Applicant convened and conducted 14 (Fourteen) meetings of the CoC as on the date of filing of this application. The Applicant had issued Form ‘G’ twice. Form ‘G’ was issued on 25th August, 2022 inviting Expression of Interest (EoI) and published by the Applicant in ‘Form G’ in leading widely circulated newspapers. The Applicant had received two Resolution Plans within the due date i.e. on or before 09.11.2022 from the two ResolutionApplicants as stated below: i. Indus Edutrain Private Limited ii. SkillTree Consulting PrivateLimited e.The Applicant had shared both the Resolution Plans received with the CoC Members and the same was not vetted as per the IBC, 2016. The Applicant has also forwarded the queries with respect to the Resolution Plans to both the Resolution Applicants(RAs). Thereafter, the Applicant has requested both the Applicant to submit their modified Resolution Plans. Both the RAs has submitted their revised Resolution Plan with the revised value and after incorporating changes as proposed and the same was shared with theMember ofCoC. f.The Applicant has found that both the revised Resolution Plan are compliant with the Section 29A and the other applicable provisions of IBC, 2016and therefore, votingcan betaken onthesame. g. Evaluation Matrix as per the revised Resolution Plan submitted by Skill Tree Consulting Private Limited and Indus Edutrain Private Limited was circulated to the CoC Members through email. The final scoring of theApplicants is as below: Nameof theApplicant Scoring Skill Tree Consulting Private 90.20 Limited Indus Edutrain Private Limited 25.28
DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021 h. Both the Resolution Plans were placed before the CoC Members for voting. Thereafter, the 14th CoC Meeting was convened and in terms of Regulation 39(2) before CoC Members as per regulation 25 of the Code, for their approval / rejection of the Resolution Plan. The CoC Members have attended the said meeting physically and voted on the Resolution Plans of Skill Tree Consulting Private Limited and Indus Edutrain Private Limited and the same was concluded on 04.10.2023 with approval of Resolution Plan of M/s. Skill Tree Consulting Private Limited with 100%CoC Members voted in favour oftheResolution Plan. i.The Applicant / Resolution Professional has also shared the summary of the fair and liquidation values of the Corporate Debtor through email with the CoCMembers as per Regulation 35(2)ofthe IBBI(CIRP) Regulation. j.The CoC Members authorized the Applicant / Resolution Professional to issue LoI to the Successful Resolution Applicant (SRA) in terms of RFRP and submit the Resolution Plan approved by the Committee to the Adjudicating Authority along with a compliance certificate in ‘Form-H’ and evidence of receipt of Performance Security required under sub-regulation(4A) of regulation 36B andas provided underRFRP. k. The Applicant / Resolution Professional has issued Letter of Intent to the Successful Resolution Applicant (SRA) and The Successful Resolution Applicant (SRA) has also submitted Performance Security Rs. 25 Lakhs plus Rs. 10 Lakhs submitted as EMD converted into performance security, making the total Performance Security deposit of Rs. 35Lakhs as Performance Security. l.The approved Resolution Plan of Skill Tree Consulting Private Limited being the Successful Resolution Applicant (SRA) is in compliance to the Insolvency and Bankruptcy Code, 2016 and the Resolution Plan bears a compliance report is being attached as ‘Form H’ as prescribed under the regulations containing all the details relating to the compliance. The compliance of mandatory provisions content as per Regulations 38 of the DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021 IBBI (CIRP) Regulation 2016 is attached with ‘Form H’ is annexed herewith and marked as “Annexure-J”. A copy of Affidavit as per Regulation 39(1)(a) for eligibility criteria underSection 29A.
6. The Skill Tree Consulting Private Limited under this Resolution Plan, has provided for a total plan value for theCorporate Debtor of Rs.7,30,00,000 Lakhs. The amount claimed, amount admitted and the amount provided under the ResolutionPlan are enumerated below: Class ofCreditors / Amount Amount Amountprovided Particulars Claimed Admitted underthe (Amountin (Amountin Resolution Plan Lakhs) Lakhs) (Amountin Lakhs) Secured Financial - - - Creditors Unsecured Financial 11,80,23,558 7,95,60,638 6,90,00,000 Creditors Operational 2,55,52,785 2,49,23,138 4,00,00,000 Creditors Other Debts and 57,73,208 50,73,833 0 Dues GrandTotal 14,93,49,551 10,95,57,609 7,30,00,000
7. Synopsis of mandatory Provisions / Sections / Regulations and their complianceare as under: Sl. No. Section / Code / Requirement Compliance Regulation established A. ForResolution Applicant 1. 25(2)(h) Whether the Resolution Yes Applicant meets the criteria approved by the CoC having
DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021
Sl. No. Section / Code / Requirement Compliance Regulation established regard to the complexity and scale of operations of business ofthe CD 2. Section 29A The Resolution Applicant must Yes compliedwith be eligible to submit resolution Annexure‘K’of the plan. Application/
3. Section 30(1) The Resolution Applicant must Yes compliedwith submit an affidavit stating that it Annexure‘K’of the is eligible. Application
4. Regulation 39(2) Whether the RP has filed Yes applications in respect of transactions observed, found or determined byhim? 5. Regulation 39(4) Resolution Applicant must The Successful provide details of Performance Resolution Applicant Security, as referred to (SRA) has also Sub-Regulation (4A) of submitted regulation 36B. Performance Security Rs.25Lakhs plus Rs. 10Lakhs submitted as EMDconverted into performance security, making thetotal Performance Security depositof Rs. 35Lakhs as Performance Security
DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021
Sl. No. Section / Code / Requirement Compliance Regulation established B. For ResolutionPlan 1. Section 30(2)(a ) Whether the Resolution Plan Yes compliedwith provides for payment of insolvency resolution process ClauseIX(1)(a) cost?
2. Section 30(2) (b) Whether the Resolution Plan Yes compliedwith provides for payment to the Operational Creditors? Yes compliedwith ClauseIX. a.
3. Section 30(2)(c ) Whether the Resolution Plan Yes compliedwith provides for payment to the Financial Creditors who do not Clause3ofthe vote in favour of the Resolution ResolutionPlan Plan
4. Section 30(2)(d ) Whether the Resolution Plan Yes compliedwith provides for the Management of the affairs of the Corporate Clause9(IX) ofthe Debtor? ResolutionPlan
5. Section 30(2)(e ) Whether the Resolution Plan Yes compliedwith provides for implementation and supervision of the Clause9(IX) ofthe Resolution Plan? ResolutionPlan
6. Section 30(2)(f ) Whether the Resolution Plan Yes compliedwith
DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021
Sl. No. Section / Code / Requirement Compliance Regulation established contravenes any of the provision of the law for the time Clause9(IX) ofthe being in force? ResolutionPlan
7. Section 30(4) (a) Whether the Resolution Yes compliedwith Plan is feasible and viable, Annexure-I of the according tothe CoC? Application (b) Whether the Resolution Plan has been approved by the CoC with 66%voting share?
8. Section 31(1) The Resolution Plan must Yes. provide for its effective Clause 9 (IX) of the implementation plan, according ResolutionPlan totheCoC. 9. Regulation 38(1) Whether the amount payable to Yes. the Operational Creditors under the resolution plan shall be Clause 9 (IX) of the given priority in payment over ResolutionPlan financial creditor? 10. Regulation 38 The resolution plan must Yes, Clause 9 (c ) (j) (1A) include a statement as to how it of the Resolution has dealt with the interest of all Plan stakeholders
DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021
Sl. No. Section / Code / Requirement Compliance Regulation established 11. Regulation 38 (i) Whether the resolution (1B) applicant or any of its related parties has failed to implement or contributed to the failure of No implementation of any resolution plan approved under theCode. 12. Regulation 38 The Resolution Plan must Yes, (2)(a) demonstrate that it has Clause 9 (IX) of the provisions for its ResolutionPlan implementation schedule. 13. Regulation 38 The Resolution Plan must Yes, (2)(b) provide for management and Clause 9 (IX) of the its control of the business of the ResolutionPlan Corporate Debtor 14. Regulation 38 The Resolution Plan must Yes, (2)(c ) provide for adequate means of Clause 9 (IX) of the supervising of its ResolutionPlan implementation 15. Regulation 38 The Resolution Plan must Yes, (3)(a) demonstrate that it addresses the Clause 9 (IX) of the cause ofdefault. ResolutionPlan 16. Regulation 38 The Resolution Plan must Yes, (3)(b) demonstrate that it is feasible Clause 9 (IX) of the and viable ResolutionPlan 17. Regulation 38 The Resolution Plan must Yes, (3)(c ) demonstrate that it has effective Clause 9 (IX) of the implementation provisions ResolutionPlan 18. Regulation 38 The Resolution Plan must Yes,
DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021
Sl. No. Section / Code / Requirement Compliance Regulation established (3)(d ) demonstrate that it has Clause 9 (IX) of the provisions for approvals ResolutionPlan required and the timeline for the same 19. Regulation 38 The Resolution Plan must Yes, (3)(e ) demonstrate that the Resolution Clause 9 (IX) of the Applicant has feasibility and ResolutionPlan capability to implement the resolution plan
8. In course of hearing, it was submitted by the Ld. Counsel for the Applicant that the Resolution Plan is in compliance of the provisions of under Section 30 of IBC read with relevant Regulations of the CIRP Regulations and has been approved by CoC and the Plan if approved, would result in maximization of the value of assets of the Corporate Debtor and avoid corporate death due to liquidation by reviving it from financial crisis.
9. Reliefs and Concessions sought by the Resolution Applicant from this Adjudicating Authority are enumerated below for successful implementation of theResolutionPlan: 1) Shareholders' approvalunder the 2013Act Under the 2013 Act, various actions which are proposed to be undertaken pursuant to this Resolution Plan, such as (i) reduction/extinguishment of the equity and preference share capital of the Corporate Debtor (ii) increase in or reclassification of the authorized share capital of the Corporate Debtor (iii) Issuance of securities by the CorporateDebtor totheResolution Applicant
However, as per general Circular No. IBC/01/2017 dated October 25,
DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021
2017 released by the Ministry of Corporate Affairs (MCA) ("October 25 Circular") it has been clarified that "the approval of Shareholders/ members of the corporate debtor/company for a particular action required in the resolution plan for its implementation, which would have been required under the Companies Act, 2013 or any other law if the resolution plan of the company was not being considered under the Code is deemed to have been given on its approval by the Adjudicating Authority" The purpose of the October 25, 2017 Circular was to prevent shareholders of a company under the CIRP from obstructing the implementationof aResolutionPlan.
Accordingly, in light of the October 25, 2017 Circular, the requirement of procuring approval of the shareholders of the Corporate Debtor has been dispensed with for any of the actions proposed to be undertaken pursuant to this Resolution Plan. Also, the Resolution Applicant prays to the NCLT to provide under the NCLT Approval Order that once the NCLT Approval Order is issued, no other approval or procedure under Applicable Law would be required to be complied with for the purpose of (i) reduction/extinguishment of the equity and preference share capital of the Corporate Debtor (ii) increase in or reclassification of the authorized share capital of the Corporate Debtor (iii) Issuance of securities bytheCorporate Debtor totheResolutionApplicant
2) Tax &StampDuty Exemptions The Resolution Applicant also prays to the NCLT to grant an exemption from the Obligation to pay taxes and stamp duty in respect of actions undertaken pursuant to the approval of the Resolution Plan by the NCLT, since such taxes and duties, if required to be paid, will render the Resolution Plan unviable for the Resolution Applicant in monetary terms. Without prejudice to the generality of the foregoing, the DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021
Resolution Applicant requests for grant of specific exemptions in relation to the following actions which may be undertaken, should this ResolutionPlan beapproved:
(1) Exemption from payment of stamp duty and government fees on increaseintheauthorized share capital oftheCompany,
•Exemption from payment of stampduty onissueofequity shares; Exemption from payment of income tax, including but not limited to, minimum alternate tax, on any profits or book profits arising from write-off of the unpaid/waived/extinguished dues of the Financial Creditors. Operating Creditors, governmental authorities (towards StatutoryDues) and/or otherwise;
Accordingly, upon the Resolution Plan being approved by the NCLT, the actions, undertaken pursuant to the implementation of the Resolution Plan shall be deemed to be exempt from any tax obligation under various taxing statutes, including but not limited to Sections 28, 41(1), 50B, 500, 50CA, 56, 115JAA and 115JB of the Income Tax Act, 1961, the relevant provisions of the Central Goods and Service Tax Act, 2017 (as amended from time to time) and the provisions of the Indian Stamp, Act 1899 as amended from time to time) and other laws relating topayment ofstamp duty &taxes applicable in any state. 3) The Department of Registration and Stamps, Government of India along with various State Governments and the Ministry of Corporate Affairs to exempt the Resolution Applicant and the Corporate Debtor, from the levy of stamp duty and fees, if applicable, including but not limited to increase of authorized share capital of the Corporate Debtor togive effect tothisResolution Plan anditsimplementation; 4) All Central/ State Governments and statutory authorities to waive the Non-Complianceof theCorporate Debtor priorto theEffectiveDate:
DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021
5) All Governmental Authorities to provide reasonable after the Trigger Date in order for the Resolution Applicant to assess the status of the Business Permits and ensure that the Corporate Debtor is compliant with the terms of such Business Permits and Applicable Law without initiating any investigations, actions or proceedings in relation to such non-compliance; 6) The Central Board of Direct Taxes to provide an exemption to the Corporate Debtor to enable it to continue getting the benefit of carry forward and set-off of losses from previous years in light of the provisions of section 79 of the Income Tax Act, 1961 and the benefit of carry forward and set-off of the previous year losses shall continue to be available to the Corporate Debtor even after the acquisition of shareholding and control by the Resolution Applicant pursuant to this ResolutionPlan; 7) The Central Board of Direct Taxes to exempt the company from applicability of section 41 (1) as also section 28 (iv) of Income Tax Act, 1961 with respect to deemed income/capital gain/benefit arising as a result of the settlement of the dues of the creditors under the resolution plan byway ofwaiver/write-off/ remission oftheirliabilities; 8) All Governmental Authorities to grant any relief, concession or dispensation as may be required for implementation of the transactions contemplated under theplans in accordance withthis ResolutionPlan; 9) All assets (including properties, whether freehold, leasehold, or license basis) of the Corporate Debtor shall continue to remain vested in the restructured Corporate Debtor free and clear from all encumbrances. 10) The Bank guarantee issued by the RA in terms of the CIRP Process, shall be released in favor of the RA on successful payment of the upfront amount payable as per theRP.
10.This tribunal has sought for a clarification in the order dated 11.12.2023, regarding Provident Fund and Gratuity to the Workman and Employees, Ld.
DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021 Counsel for the RP confirms that the information regarding same would be provided within a period of two weeks, but till date of pronouncement of the subject order, no information / clarification has been received in the above subject matter and therefore, we have no option but to go ahead with the question ofapproval ofResolution Plan as sought for. 11.A bare perusal of the extracts / excerpts from the Plan establishes that the Resolution Plan has been approved with 100% voting share. As per the CoC, the plan meets the requirement of being viable and feasible for revival of the Corporate Debtor. By and large, all the compliances have been mentioned by the RP and the Resolution Applicant for effective implementation of the Resolution Plan. 12.On perusal of the documents on record, supported by an affidavit of the Resolution Professional, we accord our satisfaction that the Resolution Plan as approved by the CoC, is in accordance with sections 30 and 31 of the IBC and also complies with regulations 38 and 39 of the IBBI (Insolvency Resolution Process for Corporate Persons)Regulations, 2016,as enumerated supra.
13.We have also perused the reliefs, waivers and concessions as sought and as given in Para VII (Reliefs and Concessions) of page 147 to 148 of the Resolution Plan. While some of the reliefs, waivers and concessions sought by the Resolution Applicant come within the purview of the Code and the Companies Act 2013, many others fall under the power and jurisdiction of different government authorities/departments. This Adjudicating Authority has power to grant reliefs, waivers and concessions only with respect to the reliefs, waivers and concessions that are directly in relation to the Code and the Companies Act 2013 (within the powers of the NCLT), and these are granted keeping in mind the object of the Code. Reliefs, waivers and concessions that fall within the domain of other government department/authorities are not granted. 14.However, the reliefs, waivers and concessions that pertain to other governmental authorities/departments may be dealt with the respective competent authorities/forums/offices, Government or Semi Government of the State or Central Government with regard to the respective reliefs, waivers and DivisionBench,(Court-II),Kolkata IA(IB)No.
1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021 concessions, whenever sought for, in the spirit of the code, which is the revival of theCorporate Debtor. 15.It is trite and fairly well settled that the Resolution Plan must be consistent with the extant law. The Resolution Applicant shall make necessary applications to the concerned regulatory or statutory authorities for renewal of business permits and supply of essential services, if required, and all necessary forms along with filing fees etc. and such authority shall also consider the same keeping in mind the objectives of the Code, which is essentially the resolving the insolvency of the Corporate Debtorand puttingtheCorporate Debtor back onitsfeet. 16.The reliefs sought with respect to subsisting contracts/agreements cannot be granted, in the absence of the parties to these contracts and agreements and these shall have to be dealt with on terms and conditions of these contracts by the parties themselves. 17.With respect to the waivers with regard to extinguishment of claims which arose Pre-CIRP and which have not been claimed are granted in terms of Ghanashyam Mishra and Sons Pvt Ltd Vs. Edelweiss Asset Reconstruction Company Ltd, wherein the Hon’ble Supreme Court has held that 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 Govt, any State Govt or any local authority, guarantors and other stakeholders.
18.In this regard we also rely on the judgement of Hon’ble High Court of Rajasthan in the matter of EMC v. State of Rajasthan wherein it has been inter-alia held that : “Law is well-settled that with the finalization of insolvency resolution plan and the approval thereof by the NCLT, all dues of creditors, Corporate, Statutory and others stand extinguished and no demand can be raised for the period prior tothe specified date.” 19.Thus on the date of approval of resolution plan by the Adjudicating Authority, all such claims, which do not form a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021 a claim, which is not part of the resolution plan as per the law laid down by the Hon’bleSupreme Court inGhanashyam Mishra (supra). 20.The Hon’ble Supreme Court also held that all the dues including the statutory dues owed to the Central Govt, any State Govt 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 31could becontinued.
21.With respect to the waivers sought in relation to guarantors, we seek to place reliance on the judgment of Lalit Kumar Jain v Union of India & ors. [(2021) 9 SCC 321], wherein the Hon’ble Apex Court held that “sanction of a resolution plan and finality imparted to it by Section 31 does not per se operate as a dischargeof theguarantor'sliability”. 22.With respect to the reliefs and waivers sought for all inquiries, litigations, investigations and proceedings shall be granted strictly as per the section 32A of theCodeand the provisionsof thelawas may beapplicable. 23.As far as the question of granting time to comply with the statutory obligations/seeking sanctions from governmental authorities is concerned, the Resolution Applicant is directed to do the same within one year as prescribed undersection 31(4)of theCode. 24.In case of non-compliance of this order or withdrawal of Resolution Plan, the CoC shall have the right to forfeit the EMD amount already paid by the ResolutionApplicant. 25.Subject to the observations made in this Order, the Resolution Plan in question is hereby APPROVED by this Bench.
The Resolution Plan shall form part of this Order. 26.The Resolution Plan is binding on the Corporate Debtor and other stakeholders involved so that revival of the Debtor Company shall come into force with immediateeffect. 27.The Moratorium imposed under section 14 shall cease to have effect from the dateof thisorder.
DivisionBench,(Court-II),Kolkata IA(IB)No. 1753/(KB)/2023 InCP(IB)No. 406/(KB)/2021 28.The Resolution Professional shall submit the records collected during the commencement of the proceedings to the Insolvency & Bankruptcy Board of India for their record and also return to the Resolution Applicant or New Promoters. 29.Certified copy of this Order be issued on demand to the concerned parties, upon duecompliance. 30.Liberty is hereby granted for moving any Application if required in connection withimplementation ofthis ResolutionPlan. 31.A copy of this Order is to be submitted in the Office of the Registrar of Companies, West Bengal. 32.The Resolution Professional shall stand discharged from his duties with effect from thedate ofthis Order. 33.The Resolution Professional is further directed to handover all records, premises/factories/documents to the Resolution Applicant to finalise the further line of action required for starting of the operation. The Resolution Applicant shall have access to all the records/premises/factories/documents through the Resolution Professional to finalise the further line of action required for starting oftheoperation. 34.The Registry is directed to send e-mail copies of the order forthwith to all the parties and theirLd. Counsel for information andfortaking necessary steps. 35.The Application being IA (IB) No. 1753/KB/2023 along with main Company Petition videCP (IB)No. 406/KB/2021shallstanddisposed ofaccordingly. 36.Certified copy of this order may be issued, if applied for, upon compliance of all requisiteformalities.
D. Arvind BidishaBanerjee, Member(Technical) Member (Judicial)
Signed onthis the28thdayof February,2024 M.Jana,PS
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free