Approval of Resolution Plan - Om Besco Rail Products Limited

Application under sections 30(6) and 31(1) of the Insolvency and Bankruptcy Code, 2016 read with regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 for approval of Resolution Plan. In the matter of: Foseco India Limited (CIN: L24294PN1958PLC011052) ... Operational Creditor Versus Om Besco Rail Products Limited (CIN: U29253WB2008PLC123604) ... Corporate Debtor And In the matter of: Sanjai Kumar Gupta Resolution Professional of Om Besco Rail Products Limited ... Applicant Coram: Mr. Rajasekhar V.K. : Member (Judicial) Mr. Balraj Joshi : Member (Technical) Appearances (via videoconferencing): For the Applicant/RP : Ms. Manju Bhuteria, Advocate Mr. Rahul Auddy, Advocate For the successful Resolution Applicant : Mr. Ratnanko Banerji, Senior Advocate Mr. Vikash Baisya, Advocate

Date of hearing: 10 December, 2021 Date of pronouncement: 08 March, 2022

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 ORDER Per: Rajasekhar V.K., Member (Judicial) 1. Preliminary 1.1. This Court convened through videoconferencing.

1.2. IA (IB) No. 692/KB/2021 is an application filed by Mr. Sanjai Kumar Gupta, Resolution Professional of Om Besco Rail Products Limited [CIN: U29253WB2008PLC123604], under section 30(6) read with section 31(1) of the Insolvency and Bankruptcy Code, 2016 and regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations) for approval of the Resolution Plan in respect of Om Besco Rail Products Limited, the Corporate Debtor.

1.3. The underlying Company Petition in CP (IB) No.1735/KB/2019 was filed by Foseco India Limited against the Corporate Debtor under Section 9 of the Insolvency and Bankruptcy Code 2016, which was admitted vide order dated 20 May, 2020.

1.4. Initially, Mr Amit Choraria (Reg. No.IBBI/IPA-001/IP-P01345/2018- 2019/12129) was appointed as the Interim Resolution Professional (IRP). Mr. Sanjai Kumar Gupta was confirmed as the Resolution Professional (RP) of the Corporate Debtor at the second meeting of the CoC on 19 October 2019. Appointment of Mr. Sanjai Kumar Gupta, Registration No. IBBI/IPA-001/IP-P00592/2017-18/11045, as the RP of Om Besco Rail Product Ltd., the Corporate Debtor, was approved by this Adjudicating Authority vide order dated 12 November, 2020.

2. Constitution of CoC 2.1. The IRP made public announcement on 25 May, 2020 in Business Standard- English- (Kolkata Edition), Aajkal - Bengali- (Kolkata Edition), Morning India- English- (Ranchi- Edition), Sanmarg - Hindi- (Ranchi Edition) newspapers regarding initiation of Corporate

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Insolvency Resolution Process [CIRP] and called for claims from the financial and operational creditors, workers and employees of the Company in the specified forms till 03 June, 2020.

2.2. The CoC was constituted with one Financial Creditor viz. Bank of Baroda, as on 10 June 2020. A report of constitution of CoC was filed with the Adjudicating Authority on 12 June, 2020. The CoC was re-constituted and a report of re-constitution of CoC was filed on 12 November, 2020 and 09 January, 2021, whereby the CoC was constituted with one Secured Financial Creditor and sixteen Unsecured Financial Creditors. The voting share of the members of the CoC1 is given below:

Sl. Name of Amount claimed Amount admitted Voting No Claimant Share 1. Bank of ₹61,30,31,481.52 ₹61,30,31,481.52 90.00% Baroda 2. Blackberry ₹53,77,778.00 53,37,313.00 0.78% Commosale Private Limited 3. Oriental ₹15,78,362.00 ₹15,76,340.00 0.23% Vyapar Private Limited 4. Jagadamba ₹21,34,767.00 ₹21,34,767.00 0.31% Commosales Private Limited 5. Rajgharana ₹21,42,143.00 ₹21,34,767.00 0.31% Sales Private Limited 6. Navtech ₹99,76,573.00 ₹99,76,573.00 1.46% Creation

1 Page 155 of the I.A.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Name of Amount claimed Amount admitted Voting No Claimant Share Private Limited 7. Eiffel ₹98,85,523.00 ₹98,85,523.00 1.45% Agencies Private Limited 8. Arham ₹10,52,241.00 ₹10,50,300.00 0.15% Construction Private Limited 9. Anamika ₹47,05,782.00 ₹47,05,782.00 0.69 Dealmark Private Limited 10. Rose ₹58,65,480.00 ₹58,65,480.00 0.86% Commosale Private Limited 11. Purujit ₹30,00,000.00 30.00,000.00 0.44% Vinimay Private Limited 12. Naviplast ₹27,30,240.00 ₹27,30,240.00 0.40% Traders Private Limited 13. Addarsh ₹27,09,715.36 ₹26,89,186.00 0.39% Management Pvt. Ltd. 14. Astrex ₹42,99,836.00 ₹42,69,852.00 0.63% Enterprise Pvt. Ltd. 15. Indorient ₹97,42,055.00 ₹96,55,507.00 1.42% Financial Services Limited

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Name of Amount claimed Amount admitted Voting No Claimant Share 16. Manikaran ₹21,20,000.00 ₹21,01,195.00 0.31% Dealtrade Pvt. Ltd. TOTAL ₹6,83,81,377.36 ₹6,81,70,797.00 100%

2.3. The Applicant states that total of 14 (fourteen) CoC meetings have been held during CIRP period, as follows:

Particulars Date of CoC Meeting 1st CoC Meeting 13.08.2020 2nd CoC Meeting 19.10.2020 3rd CoC Meeting 27.11.2020 4th CoC Meeting 18.12.2020 5th CoC Meeting 13.01.2021 6th CoC Meeting 20.01.2021 7th CoC Meeting 15.02.2021 8th CoC Meeting 15.03.2021 9th CoC Meeting 24.03.2021 10th CoC Meeting 15.05.2021 11th CoC Meeting 27.05.2021 12th CoC Meeting 16.06.2021 13th CoC Meeting 26.06.2021 14th CoC Meeting 01.07.2021 3. Collation of claims 3.1. The claims of financial creditors, operational creditors, workers, statutory authorities as existing as on the date of filing the present application is as follows:

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 (in Crore)

Name of Creditor Amount Amount of claimed claim admitted Operational Creditors 0.28 0.27 Secured Financial Creditors 61.30 61.30 Unsecured Financial Creditors 6.84 6.82 Operational Creditors (Other than 9.75 6.09 workmen & Employees) Financial Creditors (Related Party) 26.31 25.94 Operational Creditors (Other than 3.46 3.46 workman & Employee)(Related party) Total 107.93 103.88

4. CIRP and compliances 4.1. The Applicant submits that in terms of the provisions of section 25(2)(h) of the Code read with regulation 36A(1) of CIRP Regulations, 2016, invitations in Form ‘G’ for Expressions of Interest (“EoI”) from potential resolution applicants was published in Business Standard (English-All Edition), Aajkal (Bengali-All Edition) and Sanmarg (Hindi-Jharkhand Dhanbad) newspapers on 21 December, 2020 for submission of resolution plans for the Corporate Debtor, in terms of the provisions of section 25(2)(h) of the Code read with regulation 36A (1) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. The last date for receipt of EoIs was 05 January, 2021. The last date of submission of the EoI was extended till 18 January, 2021 by the CoC in its meeting held on 13 January, 2021. A corrigendum to the EoI, extending the date of submission of the EoI was published on 14 January, 2021. It was also published on the website of the Corporate

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Debtor and IBBI.

4.2. It is submitted that in response to the EoI published on 05 January, 2021, the Applicant received seven EoIs. The last date of submission of Resolution Plan was 27 February 2021 and only one Resolution Plan was submitted by Avemore Pte. Limited-Singapore.

4.3. The Resolution Plan submitted by Avemore Pte. Limited-Singapore was discussed and opportunities were given to Avemore Pte. Limited- Singapore to revise the Resolution Plan, but the revised Resolution Plan submitted by Avemore Pte. Limited-Singapore on 26 May, 2021 contained reduced financials instead of a better offer.

4.4. On 25 May, 2021, Ganpati Industrial Pvt. Ltd, vide an email addressed to one of the CoC members, expressed its interest to submit EoI and Resolution Plan. Ganpati Industrial Pvt. Ltd was permitted to submit a Resolution Plan.

4.5. Both the Resolution Plans submitted by Avemore Pte. Limited- Singapore and Ganpati Industrial Pvt. Ltd were considered by the CoC and both the resolution Plans were revised from time to time. Avemore Pte. Limited-Singapore submitted its last revised Resolution Plan on 16 June 2021 and Ganpati Industrial Pvt. Ltd. filed its revised Resolution Plan on 01 July, 2021. 4.6. The Resolution Plans were discussed in the 14th CoC meeting held on 01 July, 2021 and put up for e-voting on 05 July, 2021 to 09 July, 2021.

4.7. The CoC voted in favour of the Resolution Plan submitted by Ganpati Industries Pvt. Ltd. with 90.15% voting share. 4.8. The RP sent a letter of Intent dated 10 July, 20212 to the successful 2 Annexure K at Pages 458-460 of the I.A.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Resolution Applicant which was duly accepted by the successful Resolution Applicant on 12 July, 2021.

4.9. The Successful Resolution Applicant submitted Performance Bank Guarantee of ₹3,01,20,000/- (Rupees Three Crore One Lakh and Twenty Thousand only), vide Axis Bank Limited dated 14 July, 2021.3

5. Compliance with statutory provisions 5.1. The Applicant has filed a Compliance Certificate in prescribed form, i.e. Form ‘H’ 4 in compliance with regulation 39(4) of the CIRP Regulations.

5.2. The Applicant has submitted that the Resolution Applicant is eligible to file a Resolution Plan and has filed an affidavit under section 29A of the Code.5

5.3. The Applicant has submitted details of various compliances as envisaged within the Code and the CIRP Regulations which a Resolution Plan should adhere to, which are reproduced hereunder:

I. Submission of Resolution Plan in terms of sub-section (2) of section 30 of the Code (as amended vide Amendment dated 16 August 2019):

Clause Requirement How dealt with in the Plan of s.30(2) 1. Plan must provide for payment of Clause 2 of Section XII at CIRP cost in priority to repayment Pages 40-41 of the of other debts of CD in the manner Resolution Plan. specified by the Board.

3 Annexure L at Page 461 of the I.A. 4 Annexure O at Pages 576-582 of the I.A. 5 Annexure N at Pages 569-575 of the I.A.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Clause Requirement How dealt with in the Plan of s.30(2) 2. (i) Plan must provide for Clause 3(c) and Clause 3(d) repayment of debts of OCs in such of Section XII at manner as may be specified by the the Resolution Plan. Board which shall not be less than the amount payable to them in the event of liquidation u/s 53; (ii) Plan must provide for Clause 6 in Section XII at repayment of debts of OCs in such Page 47 of the Resolution manner as may be specified by the Plan. Board which shall not be less than amount that would have been paid to such creditors, if the amount to be distributed under the resolution plan had been distributed in accordance with the order of priority in sub-section (1) of section 53, whichever is higher; (iii) provides for payment of debts Clause 4(c) in Section XII of financial creditors who do not at Page 42 of the vote in favour of the resolution Resolution Plan. plan, in such manner as may be specified by the Board. (c) Management of the affairs of the Section XIV at Pages 54-55 Corporate Debtor after approval of of the Resolution Plan. the Resolution Plan. (d) Implementation and Supervision Section XIII at Page 53 and Clause 2 of Section XIV at Pages 55-56 of the Resolution Plan. (e) Plan does not contravene any of Clause 3 of Section XVII at the provisions of the law for the Page 83 of the Resolution time being in force. Plan.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Clause Requirement How dealt with in the Plan of s.30(2) (f) Conforms to such other Clause 13 Section XVII at requirements as may be specified Page 84 of the Resolution by the Board. Plan.

II. Measures required for implementation of the Resolution Plan in terms of regulation 37 of CIRP Regulations:

Particulars Relevant Page of the Revised Resolution Plan dealing aforesaid compliance with Regulation

A resolution plan shall provide for the measures, as may be necessary, for insolvency resolution of the corporate debtor for maximisation of value of its assets, including but not limited to the following: - (a) transfer of all or part of the assets Not proposed in the Resolution of the corporate debtor to one or more Plan. persons;

(b) sale of all or part of the assets Not proposed in the Resolution whether subject to any security interest Plan. or not;

(c) restructuring of the corporate Clause 2 of Section XVI at Page 77 debtor, by way of merger, of the Resolution Plan. amalgamation and demerger;

(d) the substantial acquisition of shares Clause 1.6 of Section X at Page 37 of the corporate debtor, or the merger in the Resolution Plan. or consolidation of the corporate debtor with one or more persons;

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Particulars Relevant Page of the Revised Resolution Plan dealing aforesaid compliance with Regulation (e) cancellation or delisting of any Clause 1.5 of Section X at Page 36 shares of the corporate debtor, if in the Resolution Plan. applicable;

(f) satisfaction or modification of any Clause 4(d) of Section XII at Page security interest; 42 in the Resolution Plan.

(g) curing or waiving of any breach of Section XII at Pages 40-51 in the the terms of any debt due from the Resolution Plan. corporate debtor;

(h) reduction in the amount payable to Section XII at Pages 40-51 in the the creditors; Resolution Plan.

(i) extension of a maturity date or a Not proposed in the Resolution change in interest rate or other terms Plan. of a debt due from the corporate debtor;

(j) amendment of the constitutional Clause 5 of Section XVI at Page 78 documents of the corporate debtor; of the Resolution Plan.

(k) issuance of securities of the Not proposed in the Resolution corporate debtor, for cash, property, Plan. securities, or in exchange for claims or interests, or other appropriate purpose;

(l) change in portfolio of goods or Not proposed in the Resolution services produced or rendered by the Plan. corporate debtor;

(m) change in technology used by the Not proposed in the Resolution corporate debtor; and Plan.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Particulars Relevant Page of the Revised Resolution Plan dealing aforesaid compliance with Regulation (n) obtaining necessary approvals from Section XI at Pages 38-39 of the the Central and State Governments Resolution Plan. and other authorities.

III. Mandatory contents of Resolution Plan in terms of regulation 38 of CIRP Regulations:

Ref to Requirement How Dealt with in the Plan relevant reg. 38(1) The amount due to the Clause 6 in Section XII at operational creditors under a Page 47 of the Resolution resolution plan shall be given Plan. priority in payment over financial creditors. 38(1A) A resolution plan shall include Section XII at Pages 40 to 52 a statement as to how it has of the Resolution Plan. dealt with the interests of all stakeholders, including financial creditors and operational creditors of the corporate debtor. 38(1B) A resolution plan shall include Clause 2 of Section XVII at a statement giving details if the Page 83 of the Resolution resolution applicant or any of Plan. its related parties has failed to implement or contributed to the failure of implementation

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Ref to Requirement How Dealt with in the Plan relevant reg. of any other resolution plan approved by the adjudicating authority at any time in the past. 38(2) A Resolution Plan shall provide: (a) The term of the plan and Section XIII at Page 53 of the its implementation Resolution Plan. schedule; (b) The management and Section XIV at Pages 54-56 of control of the business of the Resolution Plan. the corporate debtor during its term; and (c) Adequate means for Clause 2 of Section XIV at supervising its Pages 55-56 of the Resolution implementation. Plan. 38(3) A Resolution Plan shall demonstrate that – (a) It addresses the cause of Clause G in Section VI at Pages default; 27-28 of the Resolution Plan. (b) It is feasible and viable; Section IX at Pages 34-35 of the Resolution Plan. (c) It has provisions for its Section XIII at Page 53 of the effective implementation; Resolution Plan. (d) It has provisions for Section XI at Pages 38-39 of approvals required and the the Resolution Plan. timeline for the same; and (e) The resolution applicant Section V at Pages 16-21 of has the capability to Resolution Plan. implement the resolution plan.

6. Details of Resolution Plan/ Payment Schedule 6.1. The Applicant submits the relevant information with regard to the KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 amount claimed, amount admitted, and the amount proposed to be paid by the Successful Resolution Applicant, i.e., Ganpati Industrial Private Limited under the said Resolution Plan is tabulated as under:

(in Crore)

Sl. Name of Claimant Claim Amount proposed Amount admitted No provided Upfront Within a (%) Payment period of (within 30 12 days) months 1. CIRP Cost6 0.70 0.70 -- 100 2. Workman & 0.27 0.27 -- 100 Employees Dues 3. Secured Financial 61.30 28.50 46.49 Creditors 4. Unsecured Financial 6.82 0.34 -- 4.99 Creditors 5. Operational 6.09 0.24 -- 3.94 Creditors (Other than Workman & Employees) 6. Related Party 29.40 0.06 -- 0.20 7. Business -- -- 12.00 -- Improvement (for CAPEX/Renovation/ Synchronisation & Working Capital) TOTAL 104.58 30.12 12.00 --- 42.12

6.2. The Resolution Plan defines “Effective Date” as “means the date of 6 CIRP Cost represents estimated CIRP Cost. However, actual cost under this head shall be paid upfront in full.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 approval of this Plan by Adjudicating Authority.”

Details on Management/ Implementation and Reliefs as per the Resolution Plan: 6.3. The Resolution Plan also provides for the following:

(a) Management of company after resolution in Section XIV at Pages 54-56 of the Resolution Plan. (b) Term of the Resolution Plan in Section XIII at Page 53 of the Resolution Plan. (c) Implementation and Supervision of the resolution plan in Section XIII at Page 53 and Section XIV at Pages 54-56 of the Resolution Plan. 7. Reliefs, exemptions and waivers sought and orders passed thereon 7.1. The Reliefs, Exemptions and Waivers sought by the Resolution Applicant in Section XV of the Resolution Plan, from the Adjudicating Authority are set out below for the successful implementation of the Resolution Plan. The orders thereon are indicated against each:

Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought 1. 1. Handover of Assets & Units a. Any and all Encumbrance over the assets (except charge over Fixed Assets to SFCs till the Closing Date), property or bank account of the CD shall stand released and / or extinguished on the NCLT Approval Date. Any Person (including a Creditor or a Government Authority) who is in possession of the assets, property or bank account of the Company shall allow possession of such Granted in terms of Ghanshyam assets, property or bank account to Mishra & Sons Pvt Ltd v. the Company on and from the KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought Effective Date, irrespective of any Edelweiss Asset Reconstruc-tion symbolic or actual possession or Company Ltd,7 the Hon'ble attachment of assets, property or Supreme Court held in paragraph bank account by such Person prior 95, that once a Resolution Plan is to NCLT Approval Date. approved, a creditor cannot b. No Person (including a Creditor or initiate proceedings for recovery a Government Authority) shall of claims which are not part of take possession of and / or create the Resolution Plan.

Encumbrance or attach any assets of the Company after the Effective Date on account of any Claim against the Company which relates to a period prior to the Closing Date c. Manufacturing Unit of the CD is Granted. the principal asset of the CD and all the fixed assets at the said premises should be re-vested to CD immediately after the Effective Date. d. Any Sale / Agreement to Sale / If the Corporate Debtor does not Lease Agreement / Rent wish to proceed with the Agreement or any other transaction under any agreement, transaction of similar nature with then it is not understood as to how respect to sale / lease / rent of the the Corporate Debtor under new said land prior to the Effective management can forfeit such Date shall stand terminated, shall advance. This prayer is, therefore, be considered null and void and not granted unless time is of the any advance / money received in essence of the contract and the any form by the CD on account of buyer has not performed his part of such transaction shall be forfeited the contract and also that the and the CD / RA shall not be contract expressly provides for such liable to refund any such advance / forfeiture. money received in any form or interest, penalty, charges, etc on such money.

7 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought e. Where OBRPL8 is the lessee in Granted. respect of any land leased to it by third party, such lease shall continue and nothing herein shall have the effect of terminating the same. f. The land owner: A carte blanche of this nature i. Should not cancel the cannot be granted in favour of the Leasehold rights of CD for corporate debtor. any breach committed by the CD prior to the Effective Date. ii. Should not cancel the land on account of any past dues, whether in the nature of unpaid rent, unpaid taxes, unpaid lease charges, etc or interest, penalty, etc thereon. In fact, all such past dues are to be treated as Claim and the landowners shall have no claim whatsoever against the Corporate Debtor pertaining to the period prior to the Effective Date except to the extent provided for payment by the Resolution Applicant in this Resolution Plan, if applicable. iii. Should not charge any amount in the form of transfer charge, penalty, premium or in any other form accruing, if any, due to change in management.

8 Om Besco Rail Products Limited

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought iv. Should not terminate or cancel the lease arrangement for any reason whatsoever. v. Should allow the restructured CD to continue operations in a peaceful manner at the above-stated land parcels. vi. Should not withdraw the leasehold right of the land from CD to their own names. vii. Should allow CD to expand capacities, as & when required, on the said land. viii. Immediately after the Effective Date, should acknowledge that its dues from the CD is restricted to the settlement amount proposed under this Plan and shall issue a certificate to the CD to that effect.

g. The RA / CD, if required, shall All necessary charges for noting the make necessary applications with change in the records shall be borne respective land owners for by the successful Resolution registering change in control of Applicant. the Corporate Debtor from the erstwhile shareholders / management / promoter. No transfer charge / transfer premium will be charged by Lessors on account of such change in control h. The MC shall allow possession of Granted. the premises / offices of the KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought Company, all passwords, bank account details, cheque books, statutory registers, minutes books, financial and tac records, all communication with vendors, customers, government and regulatory authorities and all other documents pertaining to the Company and its business, information technology systems (including all software and hardware), access to ERP system, etc to the Resolution Applicant within 30 days of the Effective Date.

2. 2. Bank Guarantee/ Cash as The bank guarantees/cash already Security Deposit demanded by provided to the electricity service the Damodar Valley provider shall continue. Only the Corporation (“DVC”) or unpaid usage charges prior to the Jharkhand State Electricity CIRP commencement date shall be Board (“JSEB”) for supply of resolved in terms of the Resolution Power Plan. Additionally, all charges Approval of the Resolution Plan required to be paid on the basis of by NCLT will be treated as usage and billed periodically, shall Specific Order for Waiver of Bank be paid by the Corporate Debtor Guarantee / Cash as Security under new management. Deposit by DVC against Regular It is expected that DVC and other Power Usage on basis of Contract electricity suppliers shall act in Demand or for any Specific accordance with the law laid down Reasons (e.g. providing 132 KVA by the Hon’ble Supreme Court in Power Connection with 11.5 Ghanshyam Mishra & Sons Pvt MVA Sanction Load) for next 5 Ltd v. Edelweiss Asset years from the Approval Date of Reconstruc-tion Company Ltd. the Resolution Plan by NCLT or from the date of reconnection of electricity, whichever is later, as the Corporate Debtor is totally under stress and attempt is being made by the Resolution Applicant to revive the Corporate Debtor in best possible way under this KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl.

Ref to Relief, concessions, and Orders thereon No. Clause approvals sought Proposed Resolution Plan through Optimal Infusion of Debt and efficient Working Capital Management. The Plan is to increase the production with Optimal Working Capital Infusion so as to ensure better margins and low Interest Costs. The Demand of Bank Guarantee / Cash immediately will cause stress on the Resolution Applicant/Corporate Debtor in terms of Revival as it will take 5 years for the Resolution Applicant to make the Corporate Debtor a Debt Free Company with good bottom-line.

Approval of the Resolution Plan by NCLT will be treated as Specific Order to DVC to maintain the supply of electricity without any disconnection of Power due to settlement of past dues of DVC under this Resolution Plan. In the event of disconnection for the stated reasons, DVC would be in contempt of court for violating the Specific Order of NCLT on approving the Resolution Plan. 3. 3 Release of Security Deposit Not granted, unless the service provided by Corporate Debtor being provided by such authorities Approval of the Resolution Plan or person is being discontinued. by NCLT will be treated as Such concessions cannot be granted specific order for waiver / release across the board without of the any kind of security understanding the implications deposits provided by the thereof. Corporate Debtor including but not limited to various government authorities, corporates, private

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought person, corporations like DVC, JSEB, Various Port Trust, Mines Authorities etc.; government departments (Income Tax Dept, Customs Dept, Excise Dept, Service Tax Dept, Pollution Board etc.) etc. under various statutes, acts, laws, rules and regulations or otherwise for any reason whatsoever, as this would assist in revival of the Corporate Debtor. 4. 4 Extinguishment of various Liabilities a. Other than the Persons receiving Granted in terms of the settlements under Chapter-XII of Ghanashyam Mishra and Sons the Resolution Plan, no other Pvt Ltd v Edelweiss Asset payments or settlements (of any Reconstruction Company Ltd,9 kind) shall be made to any other wherein the Hon'ble Supreme person in respect of Claims filed Court has held that once a under the CIRP or otherwise and resolution plan is duly approved all Claims (including for the by the Adjudicating Authority avoidance of doubt any unverified under sub-section (1) of section portion of their Claims) against 31, the claims as provided in the the Corporate Debtor along with resolution plan shall stand frozen any related legal proceedings, and will be binding on the including criminal proceedings Corporate Debtor and its shall stand irrevocably and employees, members, creditors, unconditionally abated, settled and including the Central Govt, any extinguished in perpetuity on and State Govt or any local authority, with effect from the closing date. guarantors and other stakeholders. On the date of approval of b. All indebtedness of the Corporate resolution plan by the Debtor, except IRP Cost, which is Adjudicating Authority, all such not due as of the Insolvency claims, which are not a part of Commencement date but relates to resolution plan, shall stand the period prior to the effective extinguished and no person will date shall stand irrevocably and be entitled to initiate or continue unconditionally extinguished in any proceedings in respect to a perpetuity on and with effect from 9 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought the effective Date. claim, which is not part of the resolution plan. 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 31 could be continued. c. The payment to Persons Granted in terms of the contemplated in Chapter-XII of Ghanashyam Mishra and Sons the Resolution Plan shall be the Pvt Ltd v Edelweiss Asset Corporate Debtor’s and Reconstruction Company Ltd,10 Resolution Applicant’s full and wherein the Hon'ble Supreme final performance and satisfaction Court has held that once a of all its obligations to such resolution plan is duly approved Persons and all claims (including by the Adjudicating Authority for the avoidance of doubt, any under sub-section (1) of section unverified portion of their Claims) 31, the claims as provided in the of such Persons against the resolution plan shall stand frozen Corporate Debtor shall stand and will be binding on the irrevocably and unconditionally Corporate Debtor and its settled and extinguished in employees, members, creditors, perpetuity on and with effect from including the Central Govt, any the effective Date. State Govt or any local authority, guarantors and other stakeholders. d. The Resolution Professional On the date of approval of issued a notice inviting all resolution plan by the potential claimants to submit their Adjudicating Authority, all such proofs of Claim. This was claims, which are not a part of published in newspapers in resolution plan, shall stand accordance with Applicable Law. extinguished and no person will Pursuant to this notice the be entitled to initiate or continue Resolution Professional may also any proceedings in respect to a have received letters from Persons 10 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought whose Claims were not yet claim, which is not part of the crystallised as of the Insolvency resolution plan. The Hon'ble Commencement Date. The Supreme Court also held that all Resolution Applicant assumes that the dues including the statutory all Persons that have any Claims dues owed to the Central Govt, against the Corporate Debtor have any State Govt or any local filed their Claims and the authority, if not part of the Verifiable Claims have been resolution plan, shall stand admitted by the Resolution extinguished and no proceedings Professional and disclosed in the in respect of such dues for the information Memorandum. period prior to the date on which Accordingly, the Resolution the Adjudicating Authority grants Applicant and the Corporate its approval under section 31 Debtor shall not have any could be continued. responsibility or liability in respect of any Claims against the Corporate Debtor attributable to the period prior to the effective Date (except IRP cost) other than any payments to be made under Section-II of Part-B (Financial Proposal) of the Resolution Plan and all Claims along with any related legal proceedings, including criminal proceedings shall stand irrevocable and unconditionally abated, settled and extinguished in perpetuity against the CD. e. Upon the approval of the Plan by Granted in terms of the the NCLT under Section 31 of the Ghanashyam Mishra and Sons Code, all pending proceedings Pvt Ltd v Edelweiss Asset relating to the winding-up of the Reconstruction Company Ltd,11 Corporate Debtor, if any, shall wherein the Hon'ble Supreme stand irrevocably and Court has held that once a unconditionally abated in resolution plan is duly approved perpetuity and all violation or by the Adjudicating Authority breach of any agreement of the under sub-section (1) of section Corporate Debtor shall stand 31, the claims as provided in the 11 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought condoned or waived on closing resolution plan shall stand frozen date and such agreements shall be and will be binding on the treated as if no violation or breach Corporate Debtor and its has ever been committed. employees, members, creditors, including the Central Govt, any State Govt or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of 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. 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 31 could be continued. f. On and with effect from the Granted in terms of the Closing Date, all Encumbrances, Ghanashyam Mishra and Sons security interest, liens and /or Pvt Ltd v Edelweiss Asset attachments (including pursuant to Reconstruction Company Ltd,12 Applicable Law and particularly wherein the Hon'ble Supreme Sections 281 of the Income Tax Court has held that once a Act and Section 81 of the Central resolution plan is duly approved Goods and Services Tax Act by the Adjudicating Authority 1961, created or suffered to exist under sub-section (1) of section over the assets of the Corporate 31, the claims as provided in the 12 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought Debtor or over the securities of the resolution plan shall stand frozen Corporate Debtor, whether by and will be binding on the contract or by Applicable Law, Corporate Debtor and its whether or not in favour of employees, members, creditors, Persons receiving settlements including the Central Govt, any under this plan or those who have State Govt or any local authority, provided debt to any third party, guarantors and other stakeholders. shall stand unconditionally and On the date of approval of irrevocable released and all resolution plan by the enforcement proceedings Adjudicating Authority, all such commenced by any Person over claims, which are not a part of any of the assets of the Corporate resolution plan, shall stand Debtor or any subsidiary or over extinguished and no person will any securities of the Corporate be entitled to initiate or continue Debtor shall stand released and any proceedings in respect to a reversed, without the requirements claim, which is not part of the of any further deed or action on resolution plan. The Hon'ble part of the Resolution Applicant Supreme Court also held that all of the Corporate Debtor, except the dues including the statutory Security Charged in favour of dues owed to the Central Govt, Secured Financial Creditors, any State Govt or any local which shall be released on the authority, if not part of the Closing Date. 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. g. On and with effect from the The judgement of the Hon’ble Closing Date, the guarantors, Supreme Court in Lalit Kumar indemnity providers and like Jain v Union of India & ors,13 persons that have provided will apply, where in paragraph guarantees, indemnities or like 133 it was held that sanction of a arrangements for and on behalf of resolution plan and finality the Corporate Debtor, in order to imparted to it by section 31 does secure the Debt availed of by the not per se operate as a discharge Corporate Debtor, shall not be of the guarantor’s liability. entitled to exercise or enforce any

13 2021 SCC OnLine SC 396 decided on 21.05.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought subrogation rights(or similar rights) in respect of such arrangements, even where such rights and claims (whether contingent or otherwise) of whatsoever nature of every member of the Promoter Group against the Corporate Debtor and / or its subsidiaries (including subrogation or similar rights) shall stand irrevocably and unconditionally extinguished, waived, withdrawn and abated in perpetuity. h. On and with effect from the Closing Date, the rights of any person (whether exercisable now Granted in terms of Ghanshyam or in the future and whether Mishra & Sons Pvt Ltd v. contingent or not) to call for the Edelweiss Asset Reconstruc-tion allotment, issue, sale or transfer of shares or loan capital of the Company Ltd,14 the Hon'ble Corporate Debtor, whether on a Supreme Court held that once a change of control or otherwise, Resolution Plan is approved, a shall stand unconditionally and creditor cannot initiate irrevocably extinguished. proceedings for recovery of i. All Claims (whether contingent claims which are not part of the or crystallised and whether or Resolution Plan. not filed) of Governmental Authorities in relation to all Statutory Dues, Regulatory Dues and Taxes which the Corporate Debtor was or may be liable to pay (including with respect to financial years under assessment), all deductions and all withholding Taxes on any payment, as required under

14 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought Applicable Law and pertaining to the period prior to the effective Date shall stand extinguished on and with effect from the closing Date. j. All obligations, liabilities Granted in terms of the (whether contingent or Ghanashyam Mishra and Sons crystallised) claims and Pvt Ltd v Edelweiss Asset proceedings in relation to any Reconstruction Company Ltd,15 corporate guarantees, indemnities wherein the Hon'ble Supreme and all other forms of credit Court has held that once a support provided by the Corporate resolution plan is duly approved Debtor prior to the effective date by the Adjudicating Authority and all contingent liabilities under sub-section (1) of section disclosed / undisclosed in the 31, the claims as provided in the annual audited financial resolution plan shall stand frozen statements as well as financial and will be binding on the statement as on Insolvency Corporate Debtor and its Commencement Date of the employees, members, creditors, Corporate Debtor and liabilities including the Central Govt, any which are not in notice of State Govt or any local authority, Corporate Debtor or not guarantors and other stakeholders. acknowledged by the Corporate On the date of approval of Debtor shall stand extinguished resolution plan by the and discharged on and with effect Adjudicating Authority, all such from the effective Date including claims, which are not a part of but not limited to any form of resolution plan, shall stand credit support for persons that are extinguished and no person will currently affiliates, promoters or be entitled to initiate or continue promoter group (including the any proceedings in respect to a existing promoters), persons claim, which is not part of the acting in concert with promoters, resolution plan. The Hon'ble holding companies, subsidiary Supreme Court also held that all companies, associate companies the dues including the statutory and/or group companies of the dues owed to the Central Govt, Corporate Debtor. any State Govt or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings 15 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought 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. k. Notwithstanding anything to the Granted, strictly in terms of the contrary, the powers of attorney or Code. authorisations issued by the corporate debtor shall stand cancelled without any further act, instrument or deed. 5. 5. Treatment of Claims of Operational Creditors on matters that are Sub Judice The matters set out in the Information Memorandum (and the corresponding claims against the CD), together with all other claims against the CD which may be pending or sub judice before any forum as on the Effective Granted in terms of the Date (whether or not such claims Ghanashyam Mishra and Sons are included in the list of claims of Pvt Ltd v Edelweiss Asset Operational Creditors as set out in Reconstruction Company Ltd,16 the Information Memorandum, wherein the Hon'ble Supreme and, including but not limited to Court has held that once a any proceedings in relation to resolution plan is duly approved Statutory Dues, Regulatory Dues by the Adjudicating Authority and Taxes initiated against the under sub-section (1) of section CD) are collectively the “Sub 31, the claims as provided in the Judice Claims”. resolution plan shall stand frozen and will be binding on the Each such Sub Judice Claim, is a Corporate Debtor and its “claim” and “debt”, each as employees, members, creditors, defined under the IBC, and would including the Central Govt, any consequently qualify as State Govt or any local authority, “operational debt” (as defined guarantors and other stakeholders. under the IBC) and therefore, the On the date of approval of full amount of such Sub Judice resolution plan by the Claims shall be deemed to be 16 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought owed and due as of the Effective Adjudicating Authority, all such Date, the liquidation value of claims, which are not a part of which is assumed to be NIL and resolution plan, shall stand therefore, no amount is payable in extinguished and no person will relation thereto. All such Sub be entitled to initiate or continue Judice Claims shall immediately, any proceedings in respect to a irrevocably and unconditionally claim, which is not part of the stand fully and finally discharged resolution plan. The Hon'ble and settled with there being no Supreme Court also held that all further claims whatsoever, and all the dues including the statutory forms of security created or dues owed to the Central Govt, suffered to exist, or rights to any State Govt or any local create such a security, to secure authority, if not part of the any obligations towards the resolution plan, shall stand Operational Creditors and other extinguished and no proceedings creditors (whether by way of in respect of such dues for the guarantee, bank guarantee, letters period prior to the date on which of credit or otherwise) shall the Adjudicating Authority grants immediately, irrevocably and its approval under section 31 unconditionally stand released and could be continued. discharged, and the Operational Creditors and other creditors shall waive all rights to invoke or enforce the same.

Pursuant to the foregoing, any and Granted. all legal proceedings (including any notice, show cause, adjudication proceedings, assessment proceedings, regulatory orders etc.) initiated before any forum by or on behalf of any Operational Creditor or any other creditor to enforce any rights or claims against the CD shall immediately, irrevocably and unconditionally stand withdrawn, abated, settled and/ or extinguished, and the Operational Creditors shall deem to have taken all necessary steps to ensure the same. The operational Creditors of KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought the CD shall have no further rights or claims against the CD (including but not limited to, in relation to any past breaches by the CD), in respect of the period prior to the Closing Date, and all such claims shall immediately, irrevocably and unconditionally stand extinguished. By virtue of the order of the Whatever protection is available NCLT approving this Resolution to the corporate debtor in terms of Plan, new inquiries, section 32A of the Code will in investigations, notices, suits, any case continue to be available. claims, disputes, litigation, Therefore, no specific orders are arbitration or other judicial, necessary in this regard. regulatory or administrative proceedings will not be initiated or admitted if these relate to any period prior to the Effective Date or arise on account of the acquisition of control by the Resolution Applicant over OBRPL pursuant to this Resolution Plan, against OBRPL or any of its employees or directors who are appointed or who remain in employment or directorship after the acquisition of control by the Resolution Applicant over OBRPL or pursuant to the implementation of the Resolution Plan.

However, the existing Granted. management, promoters, shareholders, managers, directors, officers, employees, workmen or other personnel of OBRPL shall continue to be liable for all the liabilities, claims, demand, obligations, penalties etc. arising out of any (i) proceedings,

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought inquiries, investigations, orders, show causes, notices, suits, litigation etc. (including those arising out of any orders passed by the NCLT pursuant to the provisions of the Code, whether civil or criminal, pending before any authority, court, tribunal or any other forum prior to the acquisition of control by the Resolution Applicant over OBRPL, or (ii) that may arise out of any proceedings, inquiries, investigations, orders, show cause, notices, suits, litigation etc. (including any orders that may be passed by the NCLT pursuant to the provisions of the Code), whether civil or criminal, that may be initiated or instituted post the approval of the Resolution Plan by the NCLT on account of any transactions entered into, or decisions or actions taken by, such existing management, promoters, shareholders, managers, directors, officers, employees, workmen or other personnel of OBRPL, the new management of OBRPL and/ or the Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto. 6. 6 Treatment of Contingent Liabilities a. The RA understands that the CD Granted. may not have recognized all the contingent liabilities in the Balance Sheet and therefore, there might be various other Contingent Liabilities which might not be covered in the Information

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought Memorandum. There might be other contingent liabilities as well which are not known to RA presently. b. The matters set out in the Balance Sheet & Information Memorandum, together with all other contingent liabilities (whether or not recognized or set out in the Information Memorandum), of the CD until the effective Date are collectively the “Contingent Liabilities”. Each such Contingent Liability is a “claim” and “debt”, each as defined under the IBC, and would consequently qualify as “operational debt” (as defined under the IBC) and therefore, the full amount of such Contingent Liabilities shall be deemed to be owed and due as of the Closing Date, the liquidation value of which is NIL and therefore, no amount is payable in relation thereto. All such Contingent Liabilities shall immediately, irrevocably and unconditionally stand fully and finally discharged and settled with there being no further claims whatsoever, and all forms of security created or suffered to exist, or rights to create such a security, to secure any obligations towards the Contingent Liabilities (whether by way of guarantee, bank guarantee, letters of credit or otherwise) shall immediately, irrevocably and unconditionally stand released and discharged, and all rights to KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl.

Ref to Relief, concessions, and Orders thereon No. Clause approvals sought invoke or enforce the same shall be waived. c. In accordance with the forgoing, Granted in terms of Ghanshyam all claims disclosed or un- Mishra & Sons Pvt Ltd v. disclosed and/or in India or Edelweiss Asset Reconstruc-tion anywhere outside India (whether Company Ltd,17 the Hon'ble final or contingent, whether Supreme Court held that once a disputed or undisputed and Resolution Plan is approved, a whether or not notified to or creditor cannot initiate claimed against CD) of all proceedings for recovery of Governmental Authorities claims which are not part of the (including in relation to Taxes, Resolution Plan. and all other dues and statutory payments to any Governmental Authority) relating to the period prior to the Effective Date or even accruing after the Effective Date, but arising out of matters or actions arising prior to the Effective Date, shall stand fully and finally discharged and settled. 7. 7. The statutory liabilities set out in Granted in terms of Ghanshyam the Information Memorandum, Mishra & Sons Pvt Ltd v. together with all other statutory Edelweiss Asset Reconstruc-tion liabilities of the CD until the Company Ltd,18 the Hon'ble Effective Date (whether or not Supreme Court held that once a recognized or set out in the Resolution Plan is approved, a Information Memorandum), are creditor cannot initiate collectively the “Statutory proceedings for recovery of Liabilities”.

Each such Statutory claims which are not part of the Liability is a “claim” and “debt”, Resolution Plan. as defined under the IBC, and would consequently qualify as “operational debt” (as defined under the IBC) and therefore, the full amount of such Statutory Liabilities shall be deemed to be 17 2021 SCC OnLine SC 313 decided on 13.04.2021. 18 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought owed and due as of the Effective Date, the liquidation value of which is assumed NIL and therefore, no amount is payable in relation thereto. However, the RA has proposed a payment towards settlement of Statutory liabilities as set out in clause no.7 of section XII of this plan. of this plan. All such Statutory Liabilities (including but not limited to admitted claim of (i) Commissioner of Commercial Taxes, Directorate of Commercial Taxes, Government of West Bengal, (ii) Employees’ State Insurance Corporation (iii) The Commissioner, Central Goods & Service Tax and Central Excise)shall immediately, irrevocably and unconditionally stand fully and finally settled at the price contemplated under this Plan, with there being no further claims whatsoever, and all forms of security created or suffered to exist, or rights to create such a security, to secure any obligations towards the Statutory Liabilities (whether by way of guarantee, bank guarantee, letters of credit, letter of comfort, or otherwise) shall immediately, irrevocably and unconditionally stand released and discharged, and all rights to invoke or enforce the same shall be waived. 8. 8. Income Tax Assessment, & Indirect Tax (GST, VAT, Sales Tax, Commercial Tax, Entry Tax, Excise Duty, etc), Municipal Tax, Labour Taxes (PF, ESI, etc) Assessment All dues of the respective Tax

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought departments in relation to the period prior to the Effective Date, whether claimed or not and whether admitted or not, is a “claim” and “debt”, each as defined under the IBC, and would consequently qualify as “operational debt” (as defined under the IBC). Thus, the full amount of such claims shall be deemed to be owed and due as of the CIRP Date. No further assessment / reassessment of such taxes upto the FY 2020-21 should be done by respective Tax Departments. Further, upon approval of the Plan by NCLT, RA would not be liable to pay any income tax pertaining to period upto the Effective date. Accordingly,…. a. All pending dues under the Granted in terms of Ghanshyam provisions of respective Acts, Mishra & Sons Pvt Ltd v. including taxes, duties, penalties, Edelweiss Asset Reconstruc-tion interest, fines, cesses, etc, whether Company Ltd,19 the Hon'ble admitted or not, due or contingent, Supreme Court held that once a crystallised or un-crystallised, Resolution Plan is approved, a known or unknown, secured or creditor cannot initiate unsecured, disputed or undisputed, proceedings for recovery of shall stand extinguished by virtue claims which are not part of the of the order of the NCLT Resolution Plan. approving this plan and the Corporate Debtor shall not be liable to pay any amount against such demand save and except to the extent of the amount stated in Section XII of this plan. b. All assessment/re- Granted in terms of Ghanshyam

19 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought assessment/revision/penalty/appell Mishra & Sons Pvt Ltd v. ate or other proceedings pending Edelweiss Asset Reconstruc-tion in the case of the Corporate Company Ltd,20 the Hon'ble Debtor as on the Effective Date, Supreme Court held that once a relating to the period prior to that Resolution Plan is approved, a date, shall stand terminated and all creditor cannot initiate consequential liabilities, if any, proceedings for recovery of shall be waived and shall be claims which are not part of the considered to be not payable by Resolution Plan. the corporate debtor by virtue of the NCLT order approving this Plan. c. Granted in terms of Ghanshyam All notices issued under the Mishra & Sons Pvt Ltd v. provisions of the respective Acts Edelweiss Asset Reconstruc-tion to initiate any proceedings viz. Company Ltd,21 the Hon'ble assessment/re- Supreme Court held that once a assessment/revision/penalty/etc. Resolution Plan is approved, a against the Corporate Debtor in creditor cannot initiate relation to the period prior to the proceedings for recovery of Effective Date shall be considered claims which are not part of the withdrawn and shall not be Resolution Plan proceeded against.

d. Granted in terms of Ghanshyam Mishra & Sons Pvt Ltd v. No notices should be issued under Edelweiss Asset Reconstruc-tion the provisions of the respective Acts to initiate any proceedings Company Ltd,22 the Hon'ble viz. assessment/re- Supreme Court held that once a assessment/revision/penalty/etc. Resolution Plan is approved, a against the Corporate Debtor in creditor cannot initiate relation to the period prior to the proceedings for recovery of Effective Date. claims which are not part of the Resolution Plan. e. Any proceedings which were kept Granted in terms of Ghanshyam

20 2021 SCC OnLine SC 313 decided on 13.04.2021. 21 2021 SCC OnLine SC 313 decided on 13.04.2021. 22 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought in abeyance in view of insolvency Mishra & Sons Pvt Ltd v. process or otherwise shall not be Edelweiss Asset Reconstruc-tion revived post the order of the Company Ltd,23 the Hon'ble NCLT. Supreme Court held that once a f. Resolution Plan is approved, a No further demand for period creditor cannot initiate prior to the Effective Date shall be proceedings for recovery of raised by respective Departments. claims which are not part of the Resolution Plan. g. AA to pass necessary orders/ give The Resolution Plan is expected to appropriate directions to direct tax be compliant with other laws, as authorities/ Principal envisaged under section 30 of the Commissioner of Income-tax to Code. However, it is for the Income not apply/ invoke section 79 of IT Tax Authorities to consider the Act on implementation of the same, keeping in mind the objective Resolution Plans and allow of the Code. benefit of carry forward and set-off of losses of Corporate Debtor existing and arising pursuant to implementation of Resolution Plan post change in majority shareholding. h. Granted in terms of Ghanshyam AA to pass necessary orders/ give Mishra & Sons Pvt Ltd v. appropriate directions to direct tax Edelweiss Asset Reconstruc-tion authorities to grant waiver from Company Ltd,24 the Hon'ble getting No Objection Certificate Supreme Court held that once a from direct tax authorities as Resolution Plan is approved, a contemplated under section 281 of creditor cannot initiate IT Act. Similar directions to be proceedings for recovery of given to indirect tax authorities as claims which are not part of the well. Resolution Plan. i. All tax litigations, prosecutions, Granted in terms of Ghanshyam tax legal proceedings, suits, Mishra & Sons Pvt Ltd v. demands, notices, show-cause Edelweiss Asset Reconstruc-tion notices, demand notices, actions, Company Ltd,25 the Hon'ble

23 2021 SCC OnLine SC 313 decided on 13.04.2021. 24 2021 SCC OnLine SC 313 decided on 13.04.2021. 25 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought arbitration or administrative, Supreme Court held that once a judicial, quasi-judicial, regulatory, Resolution Plan is approved, a government or any enforcement creditor cannot initiate agencies, pending or threatened proceedings for recovery of against the Corporate Debtor or claims which are not part of the whose outcome adversely effects Resolution Plan. the Corporate Debtor (including but not limited to the proceedings set out in the Process Memorandum and financial statements of Corporate Debtor) arising prior to or after the Date of approval of plan, shall be deemed to have been withdrawn or dismissed and will be deemed to have been barred with effect from the Date of approval of plan. j. Not prejudice to above, all tax Granted in terms of Ghanshyam litigations or proceedings either Mishra & Sons Pvt Ltd v. civil or criminal against the Edelweiss Asset Reconstruc-tion Corporate Debtor shall be Company Ltd,26 the Hon'ble withdrawn and necessary Supreme Court held that once a assistance / support shall be Resolution Plan is approved, a provided as may be required and creditor cannot initiate called for in this regard. proceedings for recovery of Resolution Applicant prays to AA claims which are not part of the to give appropriate directions Resolution Plan. regarding termination/revocation of all ongoing litigations and proceedings against the Corporate Debtor including but not limited to the proceedings as mentioned under this plan. k. AA to pass necessary orders/ give Granted in terms of Ghanshyam appropriate directions for Waiver Mishra & Sons Pvt Ltd v. of any past liabilities irrespective Edelweiss Asset Reconstruc-tion whether claimed or unclaimed Company Ltd,27 the Hon'ble

26 2021 SCC OnLine SC 313 decided on 13.04.2021. 27 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought from any authority including but Supreme Court held that once a not limited from direct tax Resolution Plan is approved, a authority / indirect tax authority/ creditor cannot initiate land revenue authority/ gram proceedings for recovery of panchayat or any other revenue claims which are not part of the authority on settlement of dues as Resolution Plan. per Resolution Plan. Not prejudice to above, AA to give specific directions to Ministry of Corporate Affairs, Government of India, Provident Fund, Sales Tax Authorities, commercial tax authorities, VAT authorities, Service Tax authority, GST authority, Excise Duty Authorities, Fringe Benefit Tax authorities, Wealth tax authorities, etc. to waive demand, interest and penal charges for past dues pertaining to period up to date of approval of plan. l. Granted in terms of Ghanshyam AA to pass necessary orders/ give Mishra & Sons Pvt Ltd v. appropriate directions for waiver Edelweiss Asset Reconstruc-tion of any liabilities/ penalty/ Company Ltd,28 the Hon'ble prosecution arising from non- Supreme Court held that once a compliance in relation to not filing Resolution Plan is approved, a return relating to Direct Tax/ creditor cannot initiate Indirect Tax for period prior to proceedings for recovery of date of approval of resolution claims which are not part of the plan. Resolution Plan. m. Further, No general reliefs can be granted in i. In terms of the third proviso to the manner sought for. It is for the Sec. 79 of the Income Tax Act, appropriate Tax Authorities to 1961, the resolution applicant is consider the same in accordance not required to comply with the with the relevant law. provisions of Sec. 79 for carry forward and set off of loss of the 28 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought corporate debtors. Reasonable opportunity of being heard may be provided to the Jurisdictional Principal Commissioner or Commissioner of Income Tax as required under the said provisions of the IT Act; ii. Allow setting off of losses and unabsorbed depreciation for the purpose of computation of book profit as permitted under section 115JB of Income Tax Act, 1961; iii. Exemption from any tax liability arising due to implementation of the Resolution Plan both in computing total income under the normal provisions of the IT Act and in the computation of book profit u/s 115JB of the IT Act; iv. Allow the benefit of carry forward of losses and unabsorbed depreciation quantified in the Income Tax Returns filed / to be filed by the CD; v. The brought forward Business Loss & Unabsorbed Depreciation as on the Effective Date shall be deemed to be the Business Loss & Unabsorbed Depreciation for the previous year in which the Effective Date falls and accordingly, the period allowed for setting off such loss / unabsorbed depreciation shall be counted from the AY in which the Effective Date falls; vii. Waiver of any income-tax and Minimum Alternate Tax (MAT) liability or consequences (including interest, fine, penalty,

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought etc) on OBRPL., Resolution Applicant and its shareholders on account of various steps as proposed in the Resolution Plan, including but not limited to liabilities if any under Section 41 (1), Section 56, Section 43, Section 43 B, Section 28, Section 115JB and Section 79 of the Income-tax Act, 1961, including, without limitation waiver of MAT and income tax implication arising due to write back/write off of liabilities in the books of accounts of OBRPL without any impact on brought forward tax and book loss / depreciation, pursuant to this Resolution Plan. viii. Allow the benefit of GST Receivable of Rs.1.26 crore & CENVAT Credit of Rs.5.95 Crore and Other Statutory Advances / Receivable as quantified in the Audited Balance Sheet as on 31/03/2020. 9. 9. Waiver/Exemption from No general reliefs can be granted in requirement of No Objection the manner sought for. It is for the Certificate appropriate Tax Authorities to Approval of the Resolution Plan consider the same in accordance by NCLT will be treated as waiver with the relevant law. approval for requirement of certificate under Sec 281 of the Income Tax Act, 1961 for all the stakeholders concerned under this section and provision of taking over predecessor’s tax liability under Sec 170 of the Income Tax Act, 1961 and Specific Order for not treating such Transactions as VOID under Sec 281 of the Income Tax Act, 1961 for any

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought claims in respect of tax or any other sum payable to existing Shareholders. 10. 10. Litigation a. All legal suits, proceedings, certificate proceedings and/or quasi-legal proceedings that have been initiated against the Corporate Debtor upto the Effective Date (whether filed prior Granted in terms of Ghanshyam to CIRP commencement date or Mishra & Sons Pvt Ltd v. filed during CIRP Period shall be Edelweiss Asset Reconstruc-tion deemed to have been quashed Company Ltd,29 the Hon'ble upon approval of the Resolution Supreme Court held that once a Plan by the NCLT Resolution Plan is approved, a b. Directions from the NCLT, by creditor cannot initiate way of approval of this Resolution proceedings for recovery of Plan would result in the quashing claims which are not part of the of all legal proceedings for Resolution Plan. recovery of any debt from the Corporate Debtor or enforcement of any existing security interest against the Corporate Debtor. It is hereby clarified that the courts / forums shall consider the resolution plan as adequate proof to quash all such litigation / pending matters c Granted in terms of Ghanshyam By virtue of the order of the Mishra & Sons Pvt Ltd v. NCLT approving this Resolution Plan, new inquiries, Edelweiss Asset Reconstruc-tion investigations, notices, suits, Company Ltd,30 the Hon'ble claims, disputes, litigation, Supreme Court held that once a arbitration or other judicial, Resolution Plan is approved, a regulatory or administrative creditor cannot initiate proceedings will not be initiated proceedings for recovery of 29 2021 SCC OnLine SC 313 decided on 13.04.2021. 30 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought or admitted disclosed or un-claims which are not part of the disclosed and/or in India or Resolution Plan. anywhere outside India if these relate to any period prior to the Effective Date or even accruing after the Effective Date, but arising out of matters or actions arising prior to the Effective Date or arise on account of the acquisition of control by the Resolution Applicant over OBRPL pursuant to this Resolution Plan, against OBRPL or any of its employees or directors who are appointed after the acquisition of control by the Resolution Applicant over OBRPL or pursuant to the implementation of the Resolution Plan. d. However, the existing In Lalit Kumar Jain v Union of management, promoters, India & ors,31 the Hon'ble shareholders, managers, directors, Supreme Court held in para 133 officers, employees, workmen or that sanction of a resolution plan other personnel of OBRPL shall and finality imparted to it by continue to be liable for all the section 31 does not per se operate liabilities, claims, demand, obligations, penalties etc. arising as a discharge of the guarantor's out of any (i) proceedings, liability. inquiries, investigations, orders, The provisions of section 32A of show causes, notices, suits, the IBC will also apply. litigation etc. (including those arising out of any orders passed by the NCLT pursuant to the provisions of the Code or pursuant to any order passed/ imposed by the SEBI), whether civil or criminal, pending before any authority, court, tribunal or 31 2021 SCC OnLine SC 396 decided on 21.05.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought any other forum prior to the acquisition of control by the Resolution Applicant over OBRPL, or (ii) that may arise out of any proceedings, inquiries, investigations, orders, show cause, notices, suits, litigation etc. (including any orders that may be passed by the NCLT pursuant to the provisions of the Code), whether civil or criminal, that may be initiated or instituted post the approval of the Resolution Plan by the NCLT on account of any transactions entered into, or decisions or actions taken by, such existing management, promoters, shareholders, managers, directors, officers, employees, workmen or other personnel of OBRPL, OBRPL, the new management of OBRPL and/ or the Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto. 11. 11. Waiver of Valuation of Pricing Granted, however, wherever of Shares by Registered Valuer applicable the company shall file Approval of Resolution Plan by necessary forms along with NCLT will treated as waiver of applicable fee with the Registrar the requirements of the Valuation of Companies. of Pricing of Shares by Registered Valuer(s) to be computed for Issuance of further Equity Shares to RA or any investors or Directors or Key Management persons or any other persons as allowed under the Companies Act 2013 on preferential basis.

The request for such waiver is due to the fact that current valuation of KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought the Company basis Book Value or Net Assets Value basis or Realisable Valuation of Assets adjusted to Current Liabilities basis or Discounted Cash Flow of the Business basis will be “Negative”, whereas the RA is paying Premium over Face Value considering the Future Potential of the Business. 12. 12. Treatment of Workman / Granted. Employees dues The employment terms of the employees of the Corporate Debtor shall be in accordance with the standard policies of the Resolution Applicant. For avoidance of doubt, it is clarified that, except expressly set forth herein, no obligations or Liabilities of the Corporate Debtor in respect of the employees pertaining to the period up to the Effective Date are being assumed by the Resolution Applicant. No employee of the Corporate Debtor shall have any claim whatsoever against the Corporate Debtor pertaining to the period prior to the Effective Date except to the extent provided for payment by the Resolution Applicant in this Resolution Plan, if applicable.

13. 13. Human Capital a. The Corporate Debtor & Granted, but all acts shall be done Resolution Applicant be allowed in compliance with the existing to re-build the Human Capital as law. per the requirement without any obligations.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought b. The Resolution Applicant is free Granted, but all acts shall be done to reorganise the business of the in compliance with the existing Corporate Debtor and to adopt law. suitable measure, including re-aligning the manpower requirement and changing the use of its land in such manner as is likely to benefit in the turnaround process of OBRPL. c. Further, the Resolution Applicant Granted, but all acts shall be done would be allowed to start and in compliance with the existing operate any business or enterprise law. freely without any pending Legal & Statutory hassles related to the period prior to the Effective Date. d. For financial sustainability and Granted, but all acts shall be done also keeping in view the fact that in compliance with the existing the unit requires major revamping, law. the Resolution Applicant shall be free to appoint its own resources including manpower, labour, workforce and shall not, subject to the applicable laws, be bound by any Government authority to appoint any of the old employee / workmen or follow requirement of employing from particular state or region.

Subject to applicable laws, Resolution Applicant will follow its own well-designed model of employment which will include contractual / fix term/ probation/ regular or deputation or on consultant basis. 14. 14. Contractual Claims & Liabilities a. The RA will, after the Effective Such blanket reliefs cannot be Date, make an assessment of granted at this stage since the whether it wants to continue with parties against whom these orders or terminate the contracts / will operate, are not before us at agreements entered into by KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought OBRPL. It is clarified that in case this stage. the Resolution Applicant terminates any such old contract / agreements, no termination payments or liquidated damages shall be payable by the RA or CD on account of such termination. b. All Claims & all liabilities, In Ghanshyam Mishra & Sons disclosed or un-disclosed and/or Pvt Ltd v. Edel-weiss Asset in India or anywhere outside India Reconstruc-tion Company (statutory or otherwise) of Ltd,32 the Hon'ble Supreme Court OBRPL, arising from any held that once a Resolution Plan contractual arrangements entered is approved, a creditor cannot into by OBRPL, any claims against OBRPL, or liabilities of initiate proceedings for recovery OBRPL, arising or having of claims which are not part of crystallized prior to the Effective the Resolution Plan.

Date or even accruing after the The exemptions sought for in this Effective Date, but arising out of row should measure up to this matters or actions arising prior to judgment, and section 32A of the the Effective Date shall be IBC. Those exemptions or deemed to be cancelled and waivers sought which are outside written off on the Effective Date the scope of this judgment and of pursuant to NCLT Approval section 32A of the Code, are not Order. Further, any claim against granted. OBRPL, arising from any contractual arrangements disclosed or un-disclosed and/or in India or anywhere outside India, whether set out herein or not, whether admitted or not, due or contingent, asserted or unasserted, present or future, whether or not set out in the Information Memorandum, including but not limited to any claims liabilities of OBRPL in relation to its products arising or having crystallized prior to the 32 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought Effective Date or even accruing after the Effective Date, but arising out of matters or actions arising prior to the Effective Date the balance sheet or the books of accounts of OBRPL, in relation to any period prior to the Effective Date, will be written off in full and will be deemed to be permanently extinguished by virtue of the NCLT Approval Order and the Resolution Applicant, OBRPL and/ or the new management of OBRPL shall, at no point, be made directly or indirectly responsible or liable for the same. c. It is clarified that all shareholders' Such blanket reliefs cannot be agreements, sale purchase granted at this stage since the agreements, share subscription parties against whom these orders agreements and any other will operate, are not before us at agreements governing the affairs this stage. However, the decision of OBRPL and/ or governing the of the Hon’ble Supreme Court in inter-se rights of the shareholders, Ghanashyam Mishra & Sons Pvt disclosed or un-disclosed and/or Ltd v Edelweiss Asset in India or anywhere outside India Reconstruction Company Ltd,33 shall stand terminated, without shall apply. any recourse against the Resolution Applicant, OBRPL and/ or the new management of OBRPL. 15. 15. Failure to submit Claims & Rejected / Unverified Claims a. The Interim Resolution Granted in terms of Ghanshyam Professional had issued public Mishra & Sons Pvt Ltd v. Edel-notice in accordance with the weiss Asset Reconstruc-tion Code, inviting all creditors of the Company Ltd,34 the Hon'ble Company to submit their claims 33 2021 SCC OnLine SC 313 decided on 13.04.2021. 34 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought within a specified time. Further, a Supreme Court held that once a significant time has lapsed from Resolution Plan is approved, a the date of public notice, thereby creditor cannot initiate providing sufficient time to all proceedings for recovery of creditors of the Company to claims which are not part of the submit their Claims. Hence, we Resolution Plan. assume that all persons who have Claims against the Company in any form (including Financial Creditors, Operational Creditors, Other Creditors, Government Authorities, Land Lessees, Power Supply Companies, person who have advances to the Company against supply of goods or services, SEBI, Stock Exchanges) have all filed their claims and all verifiable claim as on date of approval of this Plan by CoC, have been admitted by the Resolution Professional and are disclosed in the IM. b. Hence if any person that has any Claim(s) against the Company have not submitted its Claims (whether or not it was aware of such Claims) or of the Claim filed by any person has been rejected and / or not admitted and / or not verified by the Resolution Professional, then, subject to payment proposed in this Plan, (a) all such Claims (whether final or contingent, whether disputed or undisputed and whether or not notified to or claimed against CD); (b) all outstanding disputes or legal proceedings in respect of such claims and (c) all rights or claims of such persons against the Company; in each case, relating to KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl.

Ref to Relief, concessions, and Orders thereon No. Clause approvals sought the period prior to the Effective Date, shall immediately, irrevocably and unconditionally stand extinguished and / or settled at NIL value on the NCLT Approval Date, and the Company or the RA shall have no liabilities in respect of such Claims. 16. 16. Related Party Transactions a. The RA shall have the right to Granted. terminate requisite related party transactions (whether known or unknown), entered into between the CD and its related parties (as of the date prior to the Effective Date) without incurring any liability in respect of such termination. b. Provided, however, in case any Granted. amounts are due from any related party as on NCLT Approval Date, the Company shall retain all rights to recover such amounts and / or take any action to recover such amounts from such related party. c. All Corporate Guarantees, Granted in terms of Ghanshyam indemnities, letter of comfort, Mishra & Sons Pvt Ltd v. Edel-undertakings, post-dated cheques weiss Asset Reconstruc-tion and like instruments provided by Company Ltd,35 the Hon'ble the CD, in respect of any third Supreme Court held that once a party liabilities (including for any Resolution Plan is approved, a related party) shall stand revoked and extinguished on the Effective creditor cannot initiate Date pursuant to NCLT Approval proceedings for recovery of Order without the requirement of claims which are not part of the any further at or deed by the RA Resolution Plan. or CD.

35 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought 17. 17. Dues of Creditors during CIRP a. The dues incurred by the Granted. Resolution Professional (on behalf of OBRPL) during the CIRP, towards the operational & financial creditors shall be paid in terms of agreements with such Operational Creditors. b. The Resolution Plan has been Granted. made on the assumption that all dues incurred by the Resolution Professional (on behalf of OBRPL) during the CIRP and prior to the Effective Date, have been or will be paid as CIRP Costs. Therefore, except for CIRP Costs, any liabilities and/ or claims that arise between the Insolvency Commencement Date and the Effective Date whether disclosed or un-disclosed and/or in India or anywhere outside India shall stand waived, extinguished, abated, discharged in perpetuity as on the Effective Date, pursuant to the NCLT Approval Order and after making the payment proposed under this plan. c. Further, except as provided herein, Granted, provided there is no no interest shall be paid for the undue, unreasonable, or CIRP Period, on any claim against unwarranted delay. OBRPL (as on the Insolvency Commencement Date) be it of the financial creditor, Operational Creditor or any other claim arising on account of any financial liability, operational liability or any other contingent liability or dues, demands in connection with or against OBRPL.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought 18. 18. Treatment of Corporate Granted. Guarantee and like instrument issued by the Corporate Debtor Any Corporate Guarantee, Indemnities, Letter of Comfort, Undertakings provided by the Corporate Debtor, in respect of any third party liability shall stand extinguished on the effective date pursuant to the approval of the Resolution Plan by the order of NCLT, without requirement of any further Act or Deed by the Resolution Applicant and / or Corporate Debtor. 19. 19. Subsidiary Companies of CD a. It was for the Resolution Applicant to undertake proper due diligence, and not thrust its RA is not aware about any carelessness on the Adjudicating Subsidiary of CD or any liabilities Authority and expect concession and other status of the in this regard. Subsidiaries & Step-down Further, the subsidiary Companies Subsidiaries if any. or the Associate Companies have their own identity and cannot be struck out.

b. Therefore, upon approval of this The concessions sought are Plan by AA, all the subsidiaries & explicitly refused. step-down subsidiaries (whether Indian or Foreign) and the present associate Companies of the Corporate Debtor shall be strike out and shall no longer remain subsidiary or associate of such companies. The approval of Resolution Plan by AA shall be deemed to have all the approval for procedural requirements in KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought terms of relevant Section of the Companies Act, 2013 & Rules and RA will comply with all the procedural requirements, if any. Investments of CD in such Companies, if any, shall be treated purely as Investment and such Companies shall not be considered as Subsidiaries or Associate of CD. c. Further, the Resolution Applicant In Lalit Kumar Jain v Union of & the Corporate Debtor shall not India & ors,36 the Hon'ble be liable towards any claims or Supreme Court held in para 133 obligation (present or future, due that sanction of a resolution plan or contingent, asserted or and finality imparted to it by unasserted, crystallized or section 31 does not per se operate uncrystallised, known or unknown, disputed or undisputed, as a discharge of the guarantor's disclosed or un-disclosed) towards liability. or relating to the subsidiaries or The provisions of section 32A of associate companies of the the IBC will also apply. Corporate Debtor in India or anywhere outside India that relates to period prior to the Closing Date, including in relation to any Guarantees or Undertaking issued by CD for such subsidiaries or associate in any manner whatsoever. d. All present or future claims or The provisions of section 32A of dues against such Subsidiaries or the IBC will also apply. Associate Companies under Applicable Law (including Taxes), or in relation to any breach, contravention or non-compliance of any Applicable Law (including criminal laws), shall not be the responsibility of the CD or RA and the CD or RA 36 2021 SCC OnLine SC 396 decided on 21.05.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought shall no way be held accountable for such dues / breach. e. For the sake of clarity, it is once Not granted. The shareholding of again clarified that such the Corporate Debtor in such Subsidiary & Associate shall no subsidiary or associate companies longer remain part of the cannot just be wished away. restructured CD and therefore, shall not form part of the group. Such Subsidiaries / Associate shall be treated as separate legal entity having no relationship whatsoever with CD / RA. 20. 20. Granted in terms of Ghanshyam Mishra & Sons Pvt Ltd v. CLAIMS BY OBRPL Edelweiss Asset Reconstruc-tion All existing and future claims by Company Ltd,37 the Hon'ble OBRPL and all its existing and Supreme Court held that once a future rights, entitlement, etc. with Resolution Plan is approved, a Governmental Authorities or any creditor cannot initiate other Person (including third parties) shall not be affected and proceedings for recovery of shall remain enforceable after the claims which are not part of the Effective Date. Nothing in this Resolution Plan. Resolution Plan shall be deemed In Lalit Kumar Jain v Union of to affect the rights of OBRPL and/ India & ors,38 the Hon'ble or the new management of Supreme Court held in para 133 OBRPL to recover from and/or that sanction of a resolution plan asset claims or rights against any and finality imparted to it by Person and there shall be no set section 31 does not per se operate off of any such amounts recoverable by OBRPL or any as a discharge of the guarantor's liability of third party towards liability. OBRPL extinguished pursuant to The provisions of section 32A of this Resolution Plan. the IBC will also apply.

21. 21. Liabilities claimed by the Granted.

37 2021 SCC OnLine SC 313 decided on 13.04.2021. 38 2021 SCC OnLine SC 396 decided on 21.05.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought Erstwhile Promoters / Claims / Rights of Existing Promoter and Promoter Group Approval of the Resolution Plan will be treated as Waiver Approval by NCLT for all Liabilities claimed by erstwhile Promoters and Related Parties for Unsecured Loans and Operational/Other Creditors as on insolvency commencement date to be treated as Fully and Finally Settled with “Value” as stated in the Resolution Plan and No Due remains to be paid ever after the stated waiver. Further, Approval of the Resolution Plan will be treated as Approval by NCLT that all claims, rights of existing promoter / promoter group against the Corporate Debtor, unless covered in the Resolution Plan, shall stand irrevocably and unconditionally extinguished and ineffective on approval of Resolution Plan. 22. 22. Claims by Government Granted in terms of Ghanshyam Authorities / Public Sector Mishra & Sons Pvt Ltd v. Enterprises Edelweiss Asset Reconstruction Approval of the Resolution Plan Company Ltd,39 the Hon'ble will be treated as Approval by Supreme Court held that once a NCLT that claims of government Resolution Plan is approved, a authorities and all public Sector creditor cannot initiate Enterprises, in relation of all proceedings for recovery of taxes, dues, litigation, all pending claims which are not part of the unresolved matters etc. for period Resolution Plan. pertaining prior to the insolvency commencement date shall stand extinguished and ineffective. Prior 39 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought disputes, if any, will be treated as Fully and Finally settled at “NIL” value upon approval of the Resolution Plan by NCLT.

Past Registration of CD with all Public Sector Enterprises, Indian Railways, SAIL Rites etc, if any, will be treated as effective under RA for future supply of products as per their terms. 23. 23. Status Quo of existing approvals The Corporate Debtor under new / Default Renewal of all expired management will approach the approvals by Railways/ RDSO authorities concerned, who shall Approval of the Resolution Plan consider the same based on the by NCLT will be treated as judgment of the Hon’ble Supreme Specific Order to approve Court in Ghanshyam Mishra & extension of current approvals of Sons Pvt Ltd v. Edelweiss Asset Reconstruction Company Ltd, Products / Standards stated for maintenance of the Plant & where the Corporate Debtor start on Machinery / Factory etc for a clean slate. another 2 years (approvals which Corporate Debtor already received to supply) given the fact that the viability of the CD Business depends on such approvals and the CD was unable to restart its business in entire period of 2020 and even in current scenario due to COVID Pandemic which is a Force majeure issue.

Granted, subject to other Further, Approval of the compliances. Resolution Plan by NCLT will be treated as Specific Order to approve participation in various tenders as was permissible to the CD prior to commencement of CIRP given the fact that the KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought viability of the CD Business depends on participation of such tenders and the CD was unable to participate in entire period of 2019 & 2020 and even in current scenario due to COVID Pandemic which is a Force majeure issue. 24. 24. Revocation of Power of This cannot be granted is such Attorneys general terms. Approval of the Resolution Plan will be treated as Specific Order and Approval by NCLT to treat all the power of attorneys provided to any person by the Corporate Debtor stands revoked after the Effective Date. 25. 25. Claim of PF Authority & The Corporate Debtor under the Pending Litigation filed against successful Resolution Applicant them by the CD shall abide by the decision of the Claim of PF Authority of Rs.0.99 EPF Appellate Tribunal, Dhanbad, crores is in relation to erstwhile subject to the outcome of any establishment at the location of appeal that may be filed in the the unit of the CD and not relating matter.

This relief is explicitly to the dues of CD and the same refused. has not been admitted by the RP. The CD has filed already filed a petition before EPF appellate tribunal Dhanbad, which is still pending for final order. Directions from the NCLT, by way of approval of this Resolution Plan would result in the quashing of all legal proceedings for recovery of any amount in respect of the same or enforcement of any existing security interest against the Corporate Debtor. It is hereby clarified that the courts / forums shall consider the resolution plan as adequate proof to quash all

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought such litigation / pending matters including the notice of PF Authority. 26. 26. GST registration This is for the appropriate Tax Since the Resolution Applicant Authorities to consider keeping in has been provided with limited mind the objective of the Code. information in relation to the GST and its current status, it is probable that GST Registration for Mugma of the Corporate Debtor has lapsed, expired, suspended, cancelled, revoked or terminated or the Corporate Debtor has non-compliances in relation thereto. Accordingly, all Authorities to provide reasonable time period of at least 12 months after the Effective Date in order to enable Resolution Applicant to assess the status of the same ensure that the Corporate Debtor is compliant with the terms of such GST permit and Applicable Law. 27. 27. Licenses / Approval for Operations a. Neither the Resolution Applicant Granted in terms of section 32A nor OBRPL, nor their respective of the IBC will also apply. directors, officers and employees appointed as on or after the Effective Date shall be liable for any violations, liabilities, penalties, interests on statutory payments and/ or fines with respect to or pursuant to any order of any Governmental Authority or on account of non-compliance of Applicable Laws by OBRPL or due to OBRPL not having in place requisite approvals and licenses to undertake its business as per

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought Applicable Law. b. Since the Resolution Applicant Renewal of expired licences shall has been provided with limited be subject to application in this information in relation to the behalf to the authority concerned Business Permits and their current who shall consider for approval status, it is probable that certain of the Business Permits / Statutory keeping in view the spirit of the Approvals of the Corporate Code, which is to achieve Debtor have lapsed, expired, resolution of the Corporate suspended, cancelled, revoked or terminated or the Corporate Debtor. Debtor has Non-Compliances in relation thereto. Such applications shall also be subject to payment of the c. Accordingly, all Government Authorities prescribed fee in this regard, and i. to provide reasonable time blanket exception from payment period of at least 12 months after of fees is not granted. the Effective Date in order to enable Resolution Applicant to assess the status of these Business Permits / Statutory Approvals and ensure that the Corporate Debtor is compliant with the terms of such Business Permits / Statutory Approvals and Applicable Law ii. should not initiate any investigations, actions or proceedings in relation to such Non-Compliances; iii. should co-operate with the CD to renew / obtain for such permits / approvals; iv. permit the Resolution Applicant to continue to operate the business of the Corporate Debtor pending such permits / approvals at least till a period of 12 months from the Effective Date &; v. not to charge any charges,

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought penalty, interest, etc till the time such Permits / Approvals are received. 28. 28. Non-Compliance under Applicable Laws a. There may be penalty and other All filing fees etc. shall be paid by charges due to non-compliance of the successful Resolution various SEBI and Stock Exchange Applicant. regulations, ROC, MCA and other regulatory authorities. Such penalties and charges are part of Operational Dues, the liquidation value of which is NIL. RA proposes to NIL amount as settlement of such penalties, charges, etc. Accordingly, such penalties, charges, etc shall stand extinguished by virtue of the order of the NCLT approving this plan and the Corporate Debtor shall not be liable to pay any amount against such demands. b. Granted in terms of the Ghanashyam Mishra and Sons The Resolution Applicant would Pvt Ltd v Edelweiss Asset be entitled to remedy and / or Reconstruction Company Ltd,40 rectify any breach, violation, wherein the Hon'ble Supreme defects, deficiencies etc. which Court has held that once a the Corporate Debtor has resolution plan is duly approved committed and would also be by the Adjudicating Authority entitled to do all such legal under sub-section (1) of section compliances which were not done 31, the claims as provided in the by the CD without paying any resolution plan shall stand frozen penalties / interest / charges / and will be binding on the taxes/ etc. All penalties, Corporate Debtor and its prosecution, compounding, etc employees, members, creditors, relating prior to Effective Date including the Central Govt, any will be condoned off. State Govt or any local authority, guarantors and other

40 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of 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. 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 31 could be continued. c. All Government Authorities to Granted in terms of the waive the Non-Compliances of the Ghanashyam Mishra and Sons Corporate Debtor prior to the Pvt Ltd v Edelweiss Asset effective date; Reconstruction Company Ltd,41 wherein the Hon'ble Supreme d. Resolution Applicant and the Court has held that once a Corporate Debtor after the resolution plan is duly approved successful acquisition by the by the Adjudicating Authority Resolution Applicant shall not be under sub-section (1) of section responsible for any defaults for 31, the claims as provided in the the period prior to effective date, resolution plan shall stand frozen of any nature under any law as and will be binding on the may be applicable from time to Corporate Debtor and its time including but not limited to employees, members, creditors, ED/ RBI/ CBI/ CVC/ PMLA/ including the Central Govt, any FEMA / FERA, BSE, SEBI, State Govt or any local authority, Customs, Excise, VAT, GST, guarantors and other stakeholders. ST/CST/ Octroi, Property Tax, 41 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought EPFO, ESI and any other law/ On the date of approval of enforcement agencies even if not resolution plan by the mentioned here. Adjudicating Authority, all such claims, which are not a part of 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. 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 31 could be continued. However, all necessary filings shall be made. e. Post-acquisition of CD, the new Granted in terms of section 30(4) of management shall require 12 the Code. months for appointment of Auditors, Company Secretary and other Statutory Compliances including but not limited to compliances of SEBI, BSE, etc. The RA should therefore be allowed 12 months’ time from the effective date to comply with all statutory approval and requirements including but not limited to filing of Balance Sheet, rectifying SEBI compliances, BSE compliances, etc without any charges, penalties, interest, etc.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought 29. 29. Treatment of debts barred by If such debt is already barred by limitation limitation, then it is not clear as to As of the Effective Date, any debt what orders are expected from owed by the CD to any this Adjudicating Authority. Operational Creditor, which is barred by limitation under the Applicable Laws, shall immediately, irrevocably and unconditionally stand extinguished, waived and withdrawn on and from the Effective Date, and no person shall have any further rights or claims against the CD in this regard. 30. 30. Third Party Collaterals / Right of Subrogation This is between the Resolution a. Applicant and the secured creditors. No specific orders are There may be any Collateral necessary in this regard. Securities (owned directly / indirectly by the original promoters and their affiliates) mortgaged / hypothecated to Financial Creditors; the Resolution Applicant doesn’t wish to acquire such properties and thus proposes to secured financial Creditors to take over and adjust the same against their respective unrealized claim.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought It is hereby clarified that the In Lalit Kumar Jain v Union of India & ors,42 the Hon'ble Resolution Plan does not deal with Supreme Court held in para 133 Personal Guarantor or Corporate that sanction of a resolution plan Guarantor of the Corporate and finality imparted to it by Debtor, in any way. The creditors section 31 does not per se operate retain their right against such as a discharge of the guarantor's Personal/ Corporate Guarantor liability. and the Right of the Creditors against them do not get extinguished/effected and they can proceed against them to recover their balance outstanding (i.e., haircut plus interest plus charges, if any) from any of the Guarantors who have given Guarantee/s to secure the debts/ borrowings of the Corporate Debtor, in whatsoever manner at the discretion of the Creditors b. Notwithstanding any claims that Granted in terms of Ghanshyam any of the creditors of the Mishra & Sons Pvt Ltd v. Company or the Resolution Edelweiss Asset Reconstruction Applicant may have against third Company Ltd,43 the Hon'ble parties/ existing promoters/ Supreme Court held that once a shareholders/personal or corporate Resolution Plan is approved, a guarantors of the Company creditor cannot initiate (“Third Parties”) under any proceedings for recovery of guarantees/ contractual claims which are not part of the comforts/collateral provided by Resolution Plan. the Third Parties, no right of subrogation shall be available to these Third Parties (or any other person claiming through them), in case creditors proceed against Third Parties for balance payment or in case of invocation of/ payment by such Third Parties (at 42 2021 SCC OnLine SC 396 decided on 21.05.2021. 43 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought any time before or after the NCLT Approval Date) under their guarantees/contractual comforts/collateral and all such subrogation rights shall stand permanently waived/ extinguished on the NCLT Approval Date, pursuant to NCLT Approval Order. c. The Secured Creditors may pursue In Lalit Kumar Jain v Union of their residual unrealised claims India & ors,44 the Hon'ble against the existing guarantors Supreme Court held in para 133 (both personal and corporate) of that sanction of a resolution plan the corporate debtor. The existing and finality imparted to it by guarantors against whom such section 31 does not per se operate action may be taken for recovery as a discharge of the guarantor's of residual dues shall expressly liability. waive any right of subrogation against the corporate debtor. The provisions of section 32A of the IBC will also apply. The right of subrogation, if any, to be exercised by the guarantors, shall only be exercised against the erstwhile promoters of the corporate debtor and not against the resolved corporate debtor with the new management or any of the member of the new promoter group. d. It should be noted that Resolution No orders are necessary. Applicant shall not be responsible for the above said potential recovery either directly or indirectly towards the realization of sale of above investments/ collateral property etc., to the financial creditors.

44 2021 SCC OnLine SC 396 decided on 21.05.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought 31. 31. Right to recover any amount Granted, if otherwise permissible in from the existing debtors of the law. CD Upon approval of the plan by NCLT the Resolution Applicant will have all the rights to recover from the Debtors of the CD any amount lying as due in the books of account as on the CIRP date. 32. 32. The Adjudicating Authority shall have approved this Plan in accordance with its terms in entirety and should direct: a. DVC (i) to settle all its dues upto Granted. The Resolution Applicant the Effective Date at the price shall submit the requisite forms for offered by Resolution Applicant restoration of power connection and under this Plan, (iI) to restore the Appropriate Authorities shall Power Connection at the factory consider the same keeping in mind site immediately after the the spirit of the Code. Effective Date and (iii) to commit uninterrupted supply of Power to CD after approval of this Plan. b. The Land Lessor i.e. Jauhar Granted.

Firebricks & Refractory Works Pvt Ltd to allow the Restructured CD to allow operations on the leasehold lands as per the Lease Deed without any hassles or any charges / penalties / etc in any form for the past deeds done prior to the Effective Date. 33. 33. AA to pass necessary orders/ give The Resolution Plan is expected to appropriate directions for specific be compliant with other laws, as waiver of transaction costs related envisaged under section 30 of the leading to implementation of the Code. Such applications shall also Resolution Plan including but not limited to any incidence of Stamp be subject to payment of the Duty, ROC fee, Income-tax, any prescribed fee in this regard, and statutory levy, renewal charges, blanket exception from payment etc. The resolution plan envisages increase in authorized share of fees is not granted. capital for implementation, the KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought ROC fees towards the same shall be specifically waived.

34. 34. All relevant Government The Resolution Plan is expected to Authorities to grant relief from be compliant with other laws, as payment of stamp duty, envisaged under section 30 of the registration fees and applicable Code. Such applications shall also fees (including fees payable to the be subject to payment of the jurisdictional Registrar of prescribed fee in this regard, and Companies) for the successful blanket exception from payment implementation of the Plan of fees is not granted. (including for the Merger, capital reduction, issuance and transfer of shares or debentures and assignment of Debt). 35. 35. CD & RA shall be granted an The Resolution Plan is expected to exemption from all taxes, duties, be compliant with other laws, as levies, fees, transfer charges, envisaged under section 30 of the transfer premiums, and surcharges Code. Such reliefs cannot be that arise from or relate to granted. implementation of the Resolution Plan, since payment of these amounts may make the Resolution Plan unviable. 36. 36. AA to pass necessary orders / give Granted. However, formal appropriate direction for granting applications shall be made to the extension of current approvals of appropriate authorities for orders.

Products / Standards (including but not limited to approvals of Railways and / or RDSO) stated for maintenance of the Plant & Machinery / Factory etc for another 2 years (approvals which Corporate Debtor already received to supply) given the fact that the viability of the CD Business depends on such approvals and the CD was unable to restart its business in entire period of 2020 and even in current scenario due to COVID Pandemic which is a KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought Force majeure issue. 37. 37. The Resolution Applicant will This is not in the nature of a acquire control over the Corporate waiver, concession or approval Debtor pursuant to the order of the requiring the attention of this Adjudicating Authority by the Adjudicating Authority. Completion Date and not pursuant to the usual acquisition process which would ordinarily include a detailed due diligence and representation, warranties and indemnities in relation to the affairs of the Corporate Debtor from its Existing Promoters.

Therefore, the Resolution Applicant may take some time to discover any non-compliances that may exist in relation to the Corporate Debtor on the date of acquisition of control by the Resolution Applicant over the Corporate Debtor. As such the Resolution Applicant may take some time to identify such non-compliances and to address them. 38. 38. In light of this, the Resolution Whatever has been granted in terms Applicant and the Corporate of section 32A of the Code, alone Debtor shall have immunity from shall prevail. any actions and penalties (of any nature) under any laws for any non-compliance of laws in relation to the Corporate Debtor or by the Corporate Debtor, as well as with the terms of any agreement or arrangement entered into by the Corporate Debtor, which was existing as on the Completion Date and which continues for a period of up to 12 months after the acquisition of control by the Resolution Applicant over the Corporate Debtor. Without any

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought liability for the non-compliance during the time specified above, the Resolution Applicant undertakes to cause the Corporate Debtor to expeditiously identify such non-compliances, evaluate the steps required to address such non-compliances and take steps to remedy such non-compliances to the extent practically possible. The Resolution Applicant and the Corporate Debtor shall be entitled to apply to and approach the Adjudicating Authority for relief for continued implementation of the approved Resolution Plan before or after any coercive action is taken against the Corporate Debtor or the Resolution Applicant, especially in view of the limited due diligence offered to the Resolution Applicant. 39. 39 This Resolution Plan will be This is not in the nature of a implemented pursuant to an order waiver, concession or approval of the Adjudicating Authority, and requiring the attention of this all actions stated in this Adjudicating Authority. Resolution Plan shall be deemed to be approved by the Adjudicating Authority. Accordingly, any action or implementation of this Resolution Plan shall not be a ground for termination of any contracts entered into by the Corporate Debtor. 40. 40 Resolution Applicant and the Granted in terms of Ghanshyam Corporate Debtor after the Mishra & Sons Pvt Ltd v. successful acquisition by the Edelweiss Asset Reconstruction Resolution Applicant shall not be Company Ltd,45 the Hon'ble 45 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought responsible for any defaults for Supreme Court held that once a the period prior to effective date Resolution Plan is approved, a any nature under any law as may creditor cannot initiate be applicable from time to time proceedings for recovery of including but not limited to ED/ claims which are not part of the RBI/ CBI/ CVC/ PMLA/ FEMA / Resolution Plan. FERA, customs, excise, VAT, In Lalit Kumar Jain v Union of GST, ST/CST/ Octroi, Property Tax and any other law/ India & ors,46 the Hon'ble enforcement agencies even if not Supreme Court held in para 133 mentioned here. that sanction of a resolution plan and finality imparted to it by section 31 does not per se operate as a discharge of the guarantor's liability. The provisions of section 32A of the IBC will also apply. 41. 41. Upon approval of this Resolution Granted in terms of Ghanshyam Plan by the Adjudicating Mishra & Sons Pvt Ltd v. Authority, all inquiries, Edelweiss Asset Reconstruc-tion investigations and proceedings, Company Ltd,47 the Hon'ble whether civil or criminal, notices, Supreme Court held that once a causes of action, suits, claims, Resolution Plan is approved, a disputes, litigation, arbitration or creditor cannot initiate other judicial, regulatory or proceedings for recovery of administrative proceedings claims which are not part of the against, or in relation to, or in Resolution Plan. connection with the Corporate Debtor or the affairs of the Corporate Debtor, pending or threatened, present or future, (including without limitation, any investigation, action, proceeding, prosecution, whether civil or criminal, by the Central Bureau of Investigation, the Enforcement Directorate or any other regulatory

46 2021 SCC OnLine SC 396 decided on 21.05.2021. 47 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought or enforcement agency), in relation to any period prior to the Completion Date or arising on account of the acquisition of control by the Resolution Applicant over the Corporate Debtor pursuant to this Resolution Plan shall stand withdrawn or dismissed and all liabilities or obligations in relation thereto, whether or not set out in the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate Debtor, will be deemed to have been written off in full and permanently extinguished and the Corporate Debtor or the Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto notwithstanding any adverse order that may be passed in respect of the same by any authority prior to or after the Completion Date. Upon approval of this Resolution Plan by the Adjudicating Authority, all new inquiries, investigations, whether civil or criminal, notices, suits, claims, disputes, litigation, arbitration or other judicial, regulatory or administrative proceedings will be deemed to be barred and will not be initiated or admitted against the Corporate Debtor in relation to any period prior to the acquisition of control by the Resolution Applicant over the Corporate Debtor or on account of the acquisition of control by the KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought Resolution Applicant over the Corporate Debtor pursuant to this Resolution Plan.

However, nothing mention herein above shall be applicable to investigation, action, proceeding, prosecution, suits, etc, whether civil or criminal, regulatory or administrative actions against the erstwhile promoters/directors/employees of the CD. 42. 42. As the Resolution Applicant will This does not require any orders acquire control over the Corporate from the Adjudicating Authority. Debtor pursuant to the order of the Adjudicating Authority and not pursuant to the usual acquisition process which would ordinarily include a detailed due diligence and representation, warranties and indemnities in relation to the affairs of the Corporate Debtor from its Existing Promoters, the Resolution Applicant may take some time to discover all the non-compliances that may exist in relation to the Corporate Debtor on the date of acquisition of control by the Resolution Applicant over the Corporate Debtor. 43. 43. It is incumbent upon the Resolution Applicant to see that The jurisdictional Registrar of the plan is implemented properly. Companies to take on record and It is not for the Registrar of implement the Plan, upon Companies to Kolkata to take on approval of the Plan by NCLT, record and implement the Plan. without any further compliances.

Wherever, the indulgence of Registrar of Companies is KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought required, the company shall file all necessary forms along with applicable fee with the Registrar of Companies, who shall then act as per law. 44. 44. AA to permit that the necessary Granted. form to be filed with the MCA intimating cessation of existing Directors and appointment of new Directors shall be concluded without affixation of Digital signatures. 45. 45. AA to issue suitable order that any Granted. change in the members managing the CD shall not affect the validity and enforceability of any agreement, lease deed, contract, etc. executed by the CD with various parties, authorities, companies, etc. save and except the provisions and scope of alterations / modifications / amendments as also such reliefs and concessions provided to the Resolution Applicant and the CD under this Resolution Plan. 46. 46. All Designated Authorised Dealer The nature of this relief is not clear Category I Banks to grant any at this stage. approval or dispensation as may be required for actions contemplated under the Plan in accordance with its terms and conditions.

47. 47. It is clarified that the existing In Lalit Kumar Jain v Union of promoters, shareholders, India & ors,48 the Hon'ble managers, directors, officers or Supreme Court held in para 133 such other person in charge of the that sanction of a resolution plan affairs and management of the CD 48 2021 SCC OnLine SC 396 decided on 21.05.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought (including any person who was an and finality imparted to it by ‘officer in default’ or ‘occupier’) section 31 does not per se operate prior to the Effective Date shall as a discharge of the guarantor's continue to be responsible and liability. liable for all the liabilities, claims, The provisions of section 32A of demand, obligations, penalties etc. the IBC will also apply. arising out of any (i) proceedings, inquiries, investigations, orders, show causes, notices, suits, litigation etc. (including those arising out of any orders passed by the NCLT pursuant to Sections 43, 45, 49, 50, 66, 68, 70, 71, 72, 73, 74 of the IBC (including without limitation, any investigation by Central Bureau of Investigation or the Serious Fraud Investigation Office) or any acts or omissions in breach of applicable law (including but not limited to environmental laws, foreign exchange laws and regulations, labour and employment laws, and laws relating to anti-corruption and prevention of money laundering or diversion of funds) which occurred prior to the Effective Date, whether civil or criminal, pending before any authority, court, tribunal or any other forum prior to the effective Date or (ii) that may arise out of any proceedings, inquiries investigations, orders, show cause, notices, suits, litigation etc. (including any orders passed by the NCLT pursuant to Sections 43, 45, 49, 50, 66, 68, 70, 71, 72, 73, 74 of the IBC ), whether civil or criminal, that may be initiated or instituted post the approval of KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl.

Ref to Relief, concessions, and Orders thereon No. Clause approvals sought the Resolution Plan by the NCLT on account of any transactions entered into, or decisions or actions taken by, such existing promoters, shareholders, managers, directors, officers, employees, workmen or other personnel of the CD, and the Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto. 48. 48. All domain names, servers, being Granted, strictly in terms of the currently used by the CD to the Code. extent not owned shall continue to be available for use by the CD for a period of 3 months for the Effective Date. 49. 49. The consent of the shareholders of Granted, strictly in terms of the the Corporate Debtor for (a) issue Code. and allotment of the Promoter Equity Shares as required under Sections 42 and 62 of the Companies Act; and (b) availing of borrowings in respect of the Loan Amount under Section 180(1)(c) of the Companies Act shall be deemed to have been obtained. 50. 50. To permit RA for appointment of Granted, strictly in terms of the new Statutory Auditors as per the Code. applicable laws.

Appointment of Key Managerial Personnel and Company Secretary will be done by RA as per applicable law. 51. 51. Resolution Applicant shall not be Granted in terms of Ghanshyam liable and will be kept Mishra & Sons Pvt Ltd v. indemnified financially or KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought otherwise against any of the Edelweiss Asset Reconstruc-tion negative impact / observation / Company Ltd,49 the Hon'ble findings of Forensic Audit and/or Supreme Court held that once a transaction audit. Further neither Resolution Plan is approved, a the Corporate Debtor nor any creditor cannot initiate member of the New Promoters or proceedings for recovery of New Promoters group shall be claims which are not part of the made party to any of the legal Resolution Plan. cases arising out of such forensic audit. 52. 52. There might be certain Granted in terms of Ghanshyam litigations/proceeding against the Mishra & Sons Pvt Ltd v. CD regarding the CD may have Edelweiss Asset Reconstruc-tion conducted its business in beach of Company Ltd,50 the Hon'ble certain applicable laws; and (b) an Supreme Court held that once a adverse outcome of such Resolution Plan is approved, a proceedings would interrupt the creditor cannot initiate business of the CD as a going proceedings for recovery of concern.

Accordingly, all such claims which are not part of the proceedings should be Resolution Plan. extinguished / dropped immediately on approval of the Plan by the Adjudicating Authority. 53. 53. Resolution Applicant shall be Granted, strictly in terms of the completely free for Restructuring / Code. However, all necessary Re-alignment/Re-location/ approvals as required under law merger/demerger/amalgamation of shall be obtained. Only internal business operations/ Units of the approvals such as that of Corporate Debtors depending on shareholders and creditors during the cost effectiveness, market the implementation period shall be requirement, change in the deemed to have been granted. business scenario in the interest of successful revival of business of Corporate Debtor. 54. 54. It is further stated that all the The Corporate Debtor under new lenders / creditors / interested management shall apply to the 49 2021 SCC OnLine SC 313 decided on 13.04.2021. 50 2021 SCC OnLine SC 313 decided on 13.04.2021.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought parties shall undertake all such appropriate authorities in this steps to ensure that the account of regard. the Corporate Debtor is classified as “standard” and any other adverse action taken by them under the regulatory regime against the CD in relation to the facilities given to the Corporate Debtor (whether or not the same is outstanding as on the date of this Resolution Plan), including but not limited to initiation of proceedings under Section138, wilful defaulter proceedings, any other complaint to any regulator, administrative body, judicial body, etc. irrespective of whether there is a notice of the same to the CD, shall stand automatically discharged, at the time of NCLT order as per the Guidelines of RBI and law of the nation. 55. 55. If Corporate Debtor applies for The Corporate Debtor under new credit rating / grading with any management shall apply to the agency/bank/financial institutions appropriate authorities in this etc., past performance (during the regard. closure period for around 3 years) should not be considered for fiscal fillip. The New Promoters or New Promoters Group and its controlled company/concerns who are proposed to be the shareholders of corporate debtor has got certain synergy with corporate debtors as has been mentioned in Resolution Plan. Therefore, it is possible that some of the products of Resolution applicant or its associate concern may be common with the products of the corporate debtor. Therefore,

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought to attain the financial stability of the corporate debtor, exemption will be available to the Resolution Applicant and its members/associates as well as Corporate Debtor with regard to provisions of the conflict of Interest due to common shareholding of the corporate debtor and Resolution Applicant including its associates from all the customers- – including but not limited to Government/ Semi- Government / PSUs/ Non- Government/ Research & Development Centres / Subsidiaries / Division/ Zones/ Workshop/ Sheds or any other entities not mentioned here. 56. 56. The Memorandum of Association Granted. The Resolution Applicant of the CD shall stand revised. The shall file all necessary forms along amendment to the Memorandum with the requisite fees with the of Association, including the appropriate authorities. revisions to the capital clause therein, shall be pursuant to the order of the NCLT and shall not require any additional approval from the shareholders or otherwise.

The Resolution Applicant may cause amendments to the Articles of Association of the CD, upon the authorised persons who will be part of managing and operating the affairs of the CD are identified. 57. 57. Upon approval of the Plan by the Granted, strictly in terms of the NCLT, the Resolution Applicant Code. be permitted to recast the balance sheet for last 3 financial years, if required, and to draw up the financial statements of the CD for KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought a period ending on the Effective Date (or any date closest to that date as may be practicable) in compliance with applicable accounting standards such that it truly reflects the claims verified and the realisable, fair value of the assets as may be determined by the board of directors of the Resolution Applicant. For the above purpose, the Resolution Applicant will be permitted to carry out necessary write off of assets, creation of additional liability or expenses or write back of liability or provision (as the case may be) in the books of accounts of the CD pertaining to the period between the cut-off date and the Effective Date.

Pursuant to the order of the NCLT approving this Plan, any debit or credit, being the balancing figure, shall be adjusted in the capital reserve at the sole discretion of RA and the same shall be deemed to be in compliance with the applicable accounting standards.

The restated balance sheet of the CD as would appear on Effective Date, considering the restructuring and payments proposed in the present Resolution Plan form an integral part of this Resolution Plan. Upon approval of the Plan by the NCLT, the Resolution Applicant be permitted to recast the balance sheet for last 3 financial years, if required, and to draw up the financial statements

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought of the CD for a period. 58. 58. All existing and future claims by Granted. OBRPL and all its existing and future rights, entitlement, etc. with Governmental Authorities or any other Person (including third parties) shall not be affected and shall remain enforceable after the Effective Date. Nothing in this Resolution Plan shall be deemed to affect the rights of OBRPL and/ or the new management of OBRPL to recover from and/or asset claims or rights against any Person and there shall be no set off of any such amounts recoverable by OBRPL or any liability of third party towards OBRPL extinguished pursuant to this Resolution Plan. 59. 59. This Plan has been prepared on No orders are necessary. the assumption that there is no liability towards the Risk Purchase against past Purchase Orders / Sale Orders / Agreements / Contracts (Prior to the Effective Date) by any Customers / Suppliers / Vendors / Contractors / Consultants / Clients against the Corporate Debtor.

Resolution Applicant shall in no case will be responsible for the past claims. 60. 60. Notwithstanding anything to the Granted. contrary, the powers of attorney or authorisations issued by the corporate debtor shall stand cancelled without any further act, instrument or deed. 61. 61. Carry forward and brought This is for the Income Tax forward losses for all preceding 8 authorities to consider keeping in KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought years be allowed for a further mind the spirit of the Code. period of 8 years. 62. 62. Income Tax Authority to consider This is for the Income Tax any income arising due to waiver authorities to consider keeping in and/or write off of liabilities mind the spirit of the Code. should not be treated as income and no tax/book profit tax shall be levied. Section 41(1) of the Income Tax Act, 1961 should not be applied in respect of the execution of the Plan, as approved by this Tribunal. 63. 63. Income Tax Authority to consider This is upto the appropriate grant of exemption and relief to authorities to consider keeping in the CD from the provisions of mind the spirit of the Code.

Section(s) 45, 43B, 56, 79, 115JB, 269-SS, 269-T of Chapter XVII of the Income Tax Act, 1961, effective from the Approval Date for implementation of Resolution Plan. 64. 64 The approval of resolution plan by Adjudicating Authority shall constitute adequate and final approval of Adjudicating Authority for: a. cancellation of the share capital of Granted. The company shall file the Corporate Debtor (as may be all necessary forms along with agreed upon) in terms of the applicable fee with the Registrar provisions of the Companies Act, of Companies. 2013 and other applicable law without any compliance of any provisions of the Act which shall stand exempted without any further action on part of any Party; b. issuance of new Equity Shares / Granted. The company shall file Preference shares and/or all necessary forms along with convertible securities as may be applicable fee with the Registrar considered appropriate to issue in of Companies. terms of Section 42 and Section 62(1)(c) of the Companies Act, 2013 and other applicable law;

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Sl. Ref to Relief, concessions, and Orders thereon No. Clause approvals sought and; c. the amount infused by the Granted. Resolution Applicant in the Corporate Debtor for payment of dues of financial creditors as per this Resolution Plan shall not be termed as “deposits” under Section 73 to 76 of the Companies Act, 2013 and the rules made thereunder, shall be effective without following the provisions of the Companies Act, 2013, and that no approval/consent shall be necessary from any other person in relation to any of these actions including under any agreement, the constitution documents of the Corporate Debtor or any applicable law.

8. Analysis and Orders 8.1. On hearing the submissions made by the Resolution Professional, and perusing the record, we find that the Resolution Plan has been approved with 90.15% 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 done by the Resolution Professional and the Resolution Applicant for making the plan effective after approval by this Bench.

8.2. On perusal of the documents on record, we are satisfied that the Resolution Plan 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.

8.3. As far as the question of granting time to comply with the statutory obligations or seeking approvals from authorities is concerned, the KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 Resolution Applicant is directed to do so within one year from the date of this order, as prescribed under section 31(4) of the Code.

8.4. In case of non-compliance of this order or withdrawal of Resolution Plan, the payments already made by the Resolution Applicant shall be liable for forfeiture.

8.5. Subject to the observations made in this Order, the Resolution Plan dated 01 July, 2021, is hereby APPROVED by this Bench. The Resolution Plan shall form part of this Order.

8.6. The Resolution Plan thus approved shall be binding on the Corporate Debtor and other stakeholders involved so that revival of the Debtor Company shall come into force with immediate effect.

8.7. The Moratorium imposed under section 14 of the Code shall cease to have effect from the date of this order.

8.8. The Resolution Professional shall submit copies of 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.

8.9. The Resolution Professional shall stand discharged from his duties with effect from the date of this order.

8.10. The Resolution Professional is further directed to hand over all records, and properties 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 and premises of the corporate debtor through the Resolution Professional to finalise the further line of action required for starting of the operation.

8.11. Liberty is hereby granted for moving applications, if required, in connection with implementation of this Resolution Plan.

KOLKATA BENCH-1 Fesco India Limited v. Om Besco Rail Products Ltd. IA (IB) No.692/KB/2021 in CP (IB) No.1735/KB/2019 8.12. The Resolution Applicant shall file a copy of this order with the Registrar of Companies, West Bengal, inter alia for updating the status of the Corporate Debtor.

8.13. The application bearing IA (IB) No. 692/KB/2021 along with the Company Petition bearing C.P. (IB)No. 1735/KB/2019 are disposed of accordingly.

8.14. Additionally, the Registry shall send a copy of this order to the Registrar of Companies, West Bengal.

8.15. Certified copy of this order be issued on demand to the concerned parties, upon due compliance.

Balraj Joshi Rajasekhar V.K. Member (Technical) Member (Judicial) 08 March, 2022 GGRB[LRA]