Approval of Resolution Plan - R.D.Rubber Reclaim Limited

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH KOLKATA IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 In the matter of An application under section 30(6) for approval of Resolution Plan under section 31(1) of the Insolvency and Bankruptcy Code, 2016. And In the matter of Indian Overseas Bank … Financial Creditor Versus R.D.Rubber Reclaim Limited CIN: L51109WB1948PLC017239 … Corporate Debtor

And In the matter of Mamta Binani, RP of R.D.Rubber Reclaim Limited … Applicant

Coram: Shri Rajasekhar V.K. : Member (Judicial)

Shri Harish Chander Suri : Member (Technical)

Appearances: For the Applicant/RP : Ms Mamta Binani, RP in person

Date of hearing: 23.03.2021 Date of pronouncement: 11.05.2021 ORDER Per: Rajasekhar V.K., Member (Judicial)

1. This Court convened through video conferencing.

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 2. IA (IB) No.1332/KB/2020 is an application under section 30(6) of the Code after approval of the resolution plan by the Committee of Creditors (“CoC”).

3. The underlying Company Petition in CP (IB) No. 1724/KB/2018 was filed by Indian Overseas Bank against R.D.Rubber Reclaim Limited, the Corporate Debtor, under section 7 of the Insolvency and Bankruptcy Code 2016 which was admitted vide order dated 25.10.2019 in CP (IB) No. 1724/KB/2018.

4. Initially, the Applicant herein, Ms Mamta Binani (IBBI Reg. No. IBBI/ IPA-002/IP-N00086/2017-18/10227) was appointed as the Interim Resolution Professional. She was later confirmed as the Resolution Professional of the Corporate Debtor at the first meeting of the Committee of Creditors on 27.11.2019.

5. The IRP made public announcement dated 31.10.2019 on 02.11.2019 in Business Standard (English) and Aajkaal (Bengali) - Kolkata edition and Sanmarg (Hindi) – Ranchi edition newspapers regarding initiation of Corporate Insolvency Resolution Process (“CIRP”) and called for proof of claims from the financial and operational creditors, workers and employees of the Company in the specified forms till 13.11.2019.

6. The claims of financial and operational creditors as existing as on the date of filing the present application is as follows:

Claims of Creditors:

Sl. Category of Claim and Amount Admitted as Amount proposed No. Reference to clause of the per Information to be paid as per Resolution Plan Memorandum Plan (in Rs.) (in Rs.) 1. CIRP Costs (approx.) - 1,05,00,161 [Part III Section A (4)]

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Sl. Category of Claim and Amount Admitted as Amount proposed No. Reference to clause of the per Information to be paid as per Resolution Plan Memorandum Plan (in Rs.) (in Rs.) 2. Secured Financial 24,44,73,641 7,92,00,000 Creditors [Part III Section A (4)] 3. Operational Creditors 14,03,79,658 1,19,96,785 (other than employees and Workmen) {Part III Section A (3)} 4. Employees/Workmen - 35,00,000 5. Payment of Shareholders - 25,000 (Public) as reserve Total 38,48,53,299 10,52,21,946

7. The applicant states that a total of fourteen CoC meetings have been held during CIRP period, as follows:

Particulars Date of CoC meeting 1st CoC Meeting 27.11.2019 2nd CoC Meeting 24.12.2019 3rd CoC Meeting 02.01.2020 4th CoC Meeting 17.02.2020 5th CoC Meeting 13.03.2020 6th CoC Meeting 01.06.2020 7th CoC Meeting 16.06.2020 8th CoC Meeting 06.07.2020 9th CoC Meeting 04.08.2020 10th CoC Meeting 26.08.2020

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Particulars Date of CoC meeting 11th CoC Meeting 15.09.2020 12th CoC Meeting 28.09.2020 13th CoC Meeting 12.10.2020 14th CoC Meeting 06.11.2020

8. The Applicant submits that 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 (“CIRP Regulations”), invitations in Form ‘G’ for Expressions of Interest (“EoI”) from potential resolution applicants were issued on five occasions, the last Form ‘G’ dated 17.06.2020 was published on 18.06.2020 fixing the last date for receipt of EoIs as 03.07.2020. This was published in Business Standard (English), Aajkal (Bengali), Kolkata editions and Sanmarg (Hindi) Ranchi edition of the newspapers.

9. The Applicant submits that in response to the invitation for EoI, upto the last date, i.e., 03.07.2020, five EoIs were received. Two of the prospective Resolution Applicants (“PRA”) withdrew their EoI and one PRA did not file any viable Resolution Plan till the extended last date of submission of Resolution Plan i.e., till 10.09.2020. Two Resolution Plans were submitted, one each by Girik Securities Private Limited and Glix Securities Private Limited by the last date of submission. In furtherance of the discussions by the CoC, these Resolution Plans were revised from time to time and final Resolution Plan was submitted by Girik Securities Private Limited on 30.10.2020 and by Glix Securities Private Limited on 04.11.2020.

10. On 06.11.2020, the Resolution Plans were discussed in the fourteenth CoC meeting. In the said meeting the CoC unanimously rejected the Resolution Plan of Girik Securities Private Limited and approved the Resolution Plan

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 submitted by Glix Securities Private Limited (“Resolution Applicant” or “RA”] with 100% voting. Copy of the voting sheets are annexed to the Application and marked as Annexure ‘A’ (Colly) at pages 28 to 30 and Copy of the Minutes of meeting of fourteenth CoC meeting are annexed to the Application and marked as Annexure ‘C’ at pages 111-129.

11. It is submitted that the RP issued the Letter of Intent (“LoI”) to the RA on 16.11.2020. Subsequent to this, the RA furnished an unconditional performance deposit amounting to ₹1,00,00,000/- (Rupees one crore only) by way of a Demand Draft dated 18.11.2020 drawn in favour of the Corporate Debtor. A copy of the said LoI is annexed to the Application and marked as Annexure ‘F’ at pages 142 to 144 and a copy of the performance deposit along with undertaking dated 19.11.2020 is annexed to the Application and marked as Annexure ‘G’ at pages 145 to 148.

12. The Applicant submits details of various compliances as envisaged within the Code and the CIRP Regulations which requires a Resolution Plan to adhere to, which is 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) a. Plan must provide for payment of CIRP Part III clause 3 (iii) at Page cost in priority to repayment of other 36 of the Resolution Plan. debts of CD in the manner specified by the Board. b. i. Plan must provide for repayment clause 3 (v) Part III at Page of debts of OCs in such manner as 37 of the Resolution Plan. may be specified by the Board which shall not be less than the amount payable to them in the event of liquidation u/s 53; or KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 clause Requirement How dealt with in the Plan of s.30(2) ii. Plan must provide for repayment clause 3 of Section C of Part of debts of OC in such manner as III at Pages 40-41 of the may be specified by the Board Resolution Plan. which shall not be not 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 of clause 4.2.5 of section C of financial creditors who do not vote Part III at Page 44 of the in favour of the resolution plan, in Resolution Plan. such manner as may be specified by the Board. c. Management of the affairs of the clause 6.1 of Part II at Pages Corporate Debtor after approval of the 25 to 27 of the Resolution Resolution Plan. Plan. d. Implementation and Supervision Part IV at Pages 53- 56 and clause 6 of Part II at Pages 25-26 of the Resolution Plan. e. Plan does not contravene any of the clause 8 of Part II at Page 27 provisions of the law for the time being of the Resolution Plan in force. f. Conforms to such other requirements as _ may be specified by the Board.

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

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Particulars Relevant Page of the Revised Resolution Plan dealing with 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 of clause 15(a) of Part II at Page 30 of the the corporate debtor to one or more Resolution Plan. persons; b. sale of all or part of the assets clause 15(b) of Part II at Page 30 of the whether subject to any security Resolution Plan. interest or not; c. restructuring of the corporate clause 15(ba) of Part II at Page 30-31 debtor, by way of merger, of the Resolution Plan. amalgamation and demerger d. the substantial acquisition of shares clause 15(c) of Part II at Page 31 of the of the corporate debtor, or the Resolution Plan. merger or consolidation of the corporate debtor with one or more persons; e. cancellation or delisting of any clause 15(ca) of Part II at Page 31 of the shares of the corporate debtor, if Resolution Plan. applicable; f. satisfaction or modification of any clause 15(d) of Part II at Page 31 of the security interest; Resolution Plan. g. curing or waiving of any breach of clause 15(e) of Part II at Page 31 of the the terms of any debt due from the Resolution Plan. corporate debtor; h. reduction in the amount payable to clause 15(f) of Part II at Page 31 of the the creditors; Resolution Plan. i. extension of a maturity date or a clause 15(g) of Part II at Page 31 of the change in interest rate or other Resolution Plan. terms of a debt due from the corporate debtor; j. amendment of the constitutional clause 15(h) of Part II at Page 32 of the documents of the corporate debtor; Resolution Plan. k. issuance of securities of the clause 15(i) of Part II at Page 32 of the corporate debtor, for cash, property, Resolution Plan. securities, or in exchange for claims

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Particulars Relevant Page of the Revised Resolution Plan dealing with compliance with Regulation or interests, or other appropriate purpose; l. change in portfolio of goods or clause 15(j) of Part II at Page 32 of the services produced or rendered by Resolution Plan the corporate debtor; m. change in technology used by the clause 15(k) of Part II at Page 32 of the corporate debtor; and Resolution Plan. n. obtaining necessary approvals from clause 15(l) of Part II at Page 32 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:

Reference Requirement How dealt with in the Plan to relevant Regulation 38(1) The amount due to the clause 4.2.5 of section C of operational creditors under a Part III at Page 44 of the resolution plan shall be given Resolution Plan. priority in payment over financial creditors. 38(1A) A resolution plan shall include a clause 7 of Part II at Page 27 statement as to how it has dealt of the Resolution Plan. with the interests of all stakeholders, including financial creditors and operational creditors of the corporate debtor. 38(1B) A resolution plan shall include a clause 10 of Part II at Page 28 statement giving details if the of the Resolution Plan. resolution applicant or any of its related parties has failed to implement or contributed to the failure of implementation of any other resolution plan approved by KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Reference Requirement How dealt with in the Plan to relevant Regulation the Adjudicating Authority at any time in the past. 38(2) A resolution plan shall provide: (a) the term of the plan and its clause 4 and clause 12 of Part implementation schedule; II at Pages 25 and 29 and Part IV at Pages 53-56 of the Resolution Plan. (b) the management and control clause 6 of Part II Pages 25-27 of the business of the of the Resolution Plan. corporate debtor during its term; and (c) adequate means for clause 6.1 of Part II supervising its the Resolution Plan. implementation. 38(3) A resolution plan shall demonstrate that – (a) it addresses the cause of clause 9 of Part II at Pages 27-default; 28 of the Resolution Plan. (b) it is feasible and viable; clause 11 of Part II at Pages 28- 29 of the Resolution Plan. (c) it has provisions for its clause 6.1 and clause 12 of Part effective implementation; II and Part IV at Pages 25-27, 29, 53-56 respectively of the Resolution Plan. (d) it has provisions for approvals Not proposed by the required and the timeline for Resolution Applicant. the same; and (e) the Resolution Applicant has clause 14 of Part II at Page 30 the capability to implement of the Resolution Plan. the resolution plan.

13. The Applicant submits that the successful Resolution Applicant has submitted a certificate of eligibility under section 29A of the Code, which is annexed to the application as Annexure ‘B’ at pages 108 to 110.

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 14. The Applicant has filed a Compliance Certificate in prescribed form, i.e., Form ‘H’ in compliance with regulation 39(4) of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, which is annexed to the application as Annexure ‘E’ at pages 131 to 141.

Details of Resolution Plan/Payment Schedule 15. The Applicant submits the relevant information with regard to the amount claimed, amount admitted and the amount proposed to be paid by the Resolution Applicant, i.e., Glix Securities Private Limited, under the said Resolution Plan is tabulated as under:

Sl. Creditor Amount Amount % Amount No claimed (₹) admitted (₹) share proposed in in Resolution CoC Plan (in ₹) Financial Creditors 1. In dian Overseas Bank 24,44,73,641 24,44,73,641 100% 7,92,00,000 Operational Creditors 2. Jh arkhand Bijli Vitran 7,66,69,324 6,60,20,682 NA 10,09,458 Nigam Limited 3. Jh arkhand Industrial 32,58,563 32,58,563 NA 49,824 Area Development Authority 4. De puty Commissioner 2,75,56,320 2,75,56,320 NA 4,21,337 State Tax, Adityapur Circle, Jamshedpur 5. Em ployees Provident Fund Organisation, Jharkhand - u/s 7A of EPF & MP Act 1,02,84,785 1,02,84,785 NA 1,02,84,785 u/s 7Q of EPF & MP Act 75,62,576 75,62,576 NA - u/s 14B of EPF & MP Act 1,05,63,927 1,05,63,927 NA - 6. Em ployees State 4,28,159 1,65,165 NA 2,525 Insurance Corp, WB 7. Sh ouryavansh 1,49,67,640 1,49,67,640 NA 2,28,856 Enterprises Total 39,57,64,935 38,48,53,299 100% 9,11,96,785

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018

16. Summary of the financial proposal/payment under the Resolution Plan dated 04.11.2020 of Glix Securities Private Limited is tabulated hereunder:

Particulars Amount Admissible ₹1,05,00,161/- (Rupees one crore five lakh one hundred sixty- Debt to be one only) is reserved towards IRP Cost to be paid within 14 days paid upfront of approval of the plan by NCLT. to the CIRP Admissible Total of ₹1,19,96,785 (Rupees one crore nineteen lakh ninety- Debt to be six thousand seven hundred eighty-five only), out of which paid upfront ₹11,99,679/- (Rupees eleven lakh ninety-nine thousand six to the hundred seventy-nine only) is proposed to be infused & paid as Operational upfront cash with 14 days of plan approval date and balance Creditors ₹1,07,97,106/- (Rupees one crore seven lakh ninety-seven thousand one hundred six only) to be paid over a period of 475 days of the plan approval date. Timeline of Amt. Proposed in Remarks Payment this Plan (Rs.) X* + 14 days 11,99,679 Upfront Payment X + 110 days 29,99,196 1st Instalment X + 230 days 29,99,196 2nd Instalment X + 335 days 29,99,196 3rd Instalment X + 475 days 17,95,518 4th Instalment Total 1,19,96,785 * denotes approval date of Resolution Plan. Admissible Total of ₹7,92,00,000/- (Rupees seven crore ninety-two lakh Debt to be only), out of which ₹79,20,000/- (Rupees seventy-nine lakh paid to twenty thousand only) is proposed to be infused & paid as Financial upfront cash with 15 days of plan approval date and balance Creditors ₹7,12,80,000/- (Rupees seven crore twelve lakh eighty thousand only) to be paid over a period of 485 days of the plan approval date. Timeline of Amt. Proposed in Remarks Payment this Plan (Rs.) X* + 15 days 79,20,000 Upfront Payment X + 120 days 1,42,00,000 1st Instalment

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Particulars Amount X + 240 days 1,42,00,000 2nd Instalment X + 345 days 1,42,00,000 3rd Instalment X + 485 days 2,86,80,000 4th Instalment Total 7,92,00,000 * denotes approval date of Resolution Plan. Admissible Total of ₹35,00,000/- (Rupees thirty-five lakh only) out of which Debt to be ₹3,50,000/- (Rupees three lakh fifty thousand only) is proposed paid to to be infused & paid as upfront cash with 14 days of plan Workmen approval date and balance ₹31,50,000/- (Rupees thirty-one lakh and fifty thousand only) to be paid over a period of 475 days of the Employee plan approval date. Timeline of Amt. Proposed in Remarks Payment this Plan (Rs.) X* + 14 days 3,50,000 Upfront Payment X + 110 days 8,75,000 1st Instalment X + 230 days 8,75,000 2nd Instalment X + 335 days 8,75,000 3rd Instalment X + 475 days 5,25,000 4th Instalment Total 35,00,000 * denotes approval date of Resolution Plan. Payment to ₹25,000/- (Rupees twenty-five thousand only) to be made on the Public 13th day of plan approval date. Shareholders

17. The Resolution Plan defines “Approval Date” or “Date of Approval” as the date of receipt of copy of the order approving the Plan by the Adjudicating Authority.

Details on Management/Implementation and Reliefs as per the Resolution Plan – Salient Features

18. The Resolution Plan also provides for – 1. Management of Company after resolution in clause 6 Part II; 2. Term of the resolution plan in clause 4 of Part II; and KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 3. Implementation and Supervision of the resolution plan in clause 6.1 Part II.

19. The Reliefs, Exemptions and Waivers sought by the Resolution Applicant from the Adjudicating Authority are set out below for the successful implementation of the Resolution Plan. The orders thereon are indicated against each.

Waivers, Reliefs and Exemptions sought under Schedule 1 of the Resolution plan starting at page 68.

Sl. Relief and/or Concessions Sought Orders Thereon No. 1. Companies Act, ROC/MCA (a) The approval of this Plan by the NCLT shall Granted, however, be deemed to have waived all the procedural wherever applicable the requirements in terms of applicable company shall file all provisions of Companies Act, 2013 for the necessary forms along with purpose of prompt execution and applicable fee with the implementation of the Resolution Plan. Registrar of Companies. (b) In terms of the Code, approval of the Granted, however, shareholders of the Corporate Debtor to the wherever applicable the transactions contemplated under the Plan company shall file all shall be deemed to have been given on the necessary forms along with approval of the Plan by the NCLT, applicable fee with the including for the restructuring of share Registrar of Companies. capital and/or for any form of corporate restructuring to be undertaken. (c) The approval of this Plan by NCLT shall Granted, subject to the constitute adequate and final approval of condition that wherever NCLT for all actions and purposes of this applicable, the company plan including extinguishment of the shall file all necessary forms existing share capital of the Corporate along with applicable fee Debtor and issuance of fresh equity shares with the Registrar of as per the provisions of the Companies Act, Companies. 2013 and further delisting of equity shares of the Corporate Debtor.

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 (d) The Registrar of Companies, Kolkata to Granted, subject to the take on record and implement the Plan, condition that wherever upon approval of the Plan by NCLT in a applicable, the company timely manner, considering the waivers and shall file all necessary forms exemptions required from compliance of the along with applicable fee various provisions of the Companies Act, with the Registrar of 2013 as defined in the order of the NCLT. Companies. (e) All the non-compliances under the Only in terms of section Companies Act including but not limiting to 32A of the Code. violation of section 185, 186 of the Act and all such other non-compliances under any other law should be regularised and all penalties payable in relation to the non-compliances stand waived off pursuant to approval of this Resolution Plan by NCLT. (f) Ministry of Corporate Affairs and/or the Not Granted. The relevant Stamp duty Authority shall exempt Resolution Applicant shall the Resolution Applicant and the Corporate ensure full compliance of Debtor from the levy of stamp duty and fees, stamp duty, registration applicable in relation to this Resolution Plan charge, etc., as may be and its implementation including but not levied by the appropriate limited to increase in authorised share State Government. capital as provided in this Resolution Plan. 2. RBI (a) All accounts of the Corporate Debtor shall No blanket approval can be stand regularised and their asset granted in this regard, and classification shall be “standard” for the all such action shall be in purposes of all RBI Applicable Laws upon accordance with the Code. payment of last and final Instalment and upon issuance of the certificate of consummation by the Resolution Professional. The records/score of Banks/ CIBIL should accordingly be upgraded to reflect such reclassification of account of the Corporate Debtor from NPA to Standard. (b) All creditors of the Corporate Debtor to Granted in terms of the withdraw all legal proceedings commenced judgment of the Hon’ble against the Corporate Debtor in relation to Supreme Court in Claims including but not limited to under Committee of Creditors of SARFAESI, RDDBFI or any other legal Essar Steel v. Satish Kumar Gupta & Ors., 2019 SCC

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 proceedings with any authority upon OnLine SC 1478, decided discharge of their debt. on 15.11.2019. Para 95 of the judgment of the Hon'ble Supreme Court in Ghanashyam Mishra & Sons Pvt Ltd v Edelweiss Asset Reconstruction Company Ltd1 lays down that when the resolution plan is approved by NCLT, the claims as provided in the resolution plan shall stand frozen and will be binding on the corporate debtor, and its employees, members, creditors, including the central and state government 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. (c) All the outstanding negotiable instruments Granted in terms of the issued by the Corporate Debtor or by any judgment of the Hon’ble person on behalf of the Corporate Debtor Supreme Court in Committee including demand promissory notes, post-of Creditors of Essar Steel v. dated cheques and letters of credit, shall Satish Kumar Gupta & Ors., stand terminated and the Corporate 2019 SCC OnLine SC 1478, Debtor’s liability under such instruments decided on 15.11.2019. shall stand extinguished. Para 95 of the judgment of the Hon'ble Supreme Court in Ghanashyam Mishra &

1 Civil Appeal No.8129/2019 a/w Civil Appeal No.1554/2021 and WP (Civil) No.1177/2020, dated 13.04.2021

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Sons Pvt Ltd v Edelweiss Asset Reconstruction Company Ltd2 lays down that when the resolution plan is approved by NCLT, the claims as provided in the resolution plan shall stand frozen and will be binding on the corporate debtor, and its employees, members, creditors, including the central and state government 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. 3. Taxes (Direct & Indirect) (a) Relief from applicability of and payment of The Resolution Plan is taxes and duties under provisions of Direct expected to be compliant tax laws including but not limited to waiver with other laws, as of Tax on account of writing envisaged under section 30 back/reduction of any debt pursuant to the of the Code. Resolution plan and all Indirect Tax laws Therefore, this waiver which may arise as a result of cannot be granted. implementation of the Plan either on the However, it is for the Resolution Applicant or the Corporate Income Tax Authorities to Debtor who is likely to be impacted due to consider the same based on implementation of the Plan. the spirit of the Code. (b) The requirement of obtaining a no objection The Resolution Plan is certificate, if any, under section 281 of the expected to be compliant

2 Civil Appeal No.8129/2019 a/w Civil Appeal No.1554/2021 and WP (Civil) No.1177/2020, dated 13.04.2021

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Income-tax Act, 1961 and provisions of with other laws, as taking over its predecessor’s tax liability envisaged under section 30 under section 170 of the Income Tax Act, of the Code. Therefore, this 1961 shall not be applicable. Similarly, any waiver cannot be granted. requirements to obtain waivers from any However, it is for the Tax authorities including in terms of section Income Tax Authorities to 79 and section 115B of the Income Tax Act, consider the same based on 1961 is deemed to have been granted upon the spirit of the Code. approval of this Resolution Plan on the Approval Date. (c) The Central Board of Direct Taxes shall: (A) The Resolution Plan is consider that the change in shareholding of expected to be compliant the Corporate Debtor pursuant to the Plan with other laws, as shall not lead to lapse of brought forward envisaged under section 30 losses of the Corporate Debtor; and (B) of the Code. Therefore, this provide relief to the Corporate Debtor from waiver cannot be granted. all past litigations pending at different levels However, it is for the and provide waiver from all Tax dues Income Tax Authorities to including interest and penalty on such consider the same based on litigations pending prior to the insolvency the spirit of the Code. commencement date. (d) Any written off liability arising out of The Resolution Plan is settlement of financial creditors and other expected to be compliant creditors shall not be subject to any kind of with other laws, as tax. envisaged under section 30 of the Code. Therefore, this waiver cannot be granted. However, it is for the Income Tax Authorities to consider the same based on the spirit of the Code. 4. Other Government Approvals (a) All relevant Governmental Authorities to Granted, subject to the continue to make available the Business condition that all necessary Permits to the corporate debtor pursuant to conditions attached to such any corporate restructuring and pending permits or licences shall be such transfer of Business Permits the complied with by the business may continue being carried out as Corporate Debtor under the being carried out prior to the Insolvency successful Resolution Commencement Date. Applicant.

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 (b) In case certain Business Permits of the All such licences, permits Corporate Debtor have lapsed, expired, and things of such nature suspended, cancelled, revoked or shall be applied for afresh terminated or the Corporate Debtor has with the competent Non-Compliances in relation thereto. authority, who shall Accordingly, all Governmental Authorities consider the same keeping that have issued or granted or renewed such in view the letter and spirit Business Permits to provide reasonable time of the Insolvency & period after the date of approval of the Bankruptcy Code, 2016. resolution plan in order for the Resolution Applicant to assess the status of these Business Permits and ensure that the Corporate Debtor is compliant with the terms of such Business Permits and Applicable Law without initiating any investigations, actions or proceedings in relation to such Non-Compliances and to permit the Resolution Applicant to continue to operate the business of the Corporate Debtor as carried out prior to the Insolvency Commencement Date. 5. Other Waivers, Reliefs & Exemptions (a) The order of this Adjudicating Authority for Not Granted. The the purposes of approval of Resolution Plan Resolution Applicant shall shall be deemed to be an exemption from ensure full compliance of payment of stamp duty/registration fees on stamp duty, registration fee, account of transfer of Retail Space situated etc. as may be levied by the at No. 21 B, 2nd Floor, Hiland Mall, appropriate State Kolkata, West Bengal in the name of Government. Corporate Debtor. (b) Upon implementation of this resolution This is not in the nature of a plan, all rights, titles and benefits relating to waiver, concession or the movable and immovable properties of approval requiring the the Corporate Debtor shall be vested in the attention of this Corporate Debtor free of any title defects or Adjudicating Authority at Encumbrances. this stage. In law, a company is entitled to hold property in its own name and is capable of perpetual succession. Therefore, this relief is otiose.

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 (c) All liabilities (whether contingent or Para 95 of the judgment of crystallised) in relation to any forms of the Hon'ble Supreme Court credit support provided to the corporate in Ghanashyam Mishra & debtor and corporate guarantees, Sons Pvt Ltd v Edelweiss Asset indemnities provided by the Corporate Reconstruction Company Ltd3 Debtor prior to the date of implementation lays down that when the of the resolution plan shall stand resolution plan is approved extinguished. by NCLT, the claims as provided in the resolution plan shall stand frozen and will be binding on the corporate debtor, and its employees, members, creditors, including the central and state government 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. (d) The Corporate Debtor shall be entitled to Such blanket reliefs cannot modify or terminate contracts (including be granted at this stage, contracts with parties that were related since the parties against parties of the Corporate Debtor prior to the whom these orders will Insolvency Commencement Date) which operate, are not before us at impose onerous conditions hindering the this stage. restructuring for the Corporate Debtor. (e) All powers of attorney or authorities Such blanket reliefs cannot executed by the erstwhile Board of the be granted at this stage, Corporate Debtor on or prior to the date of since the parties against whom these orders will

3 Civil Appeal No.8129/2019 a/w Civil Appeal No.1554/2021 and WP (Civil) No.1177/2020, dated 13.04.2021

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 implementation of the resolution plan shall operate, are not before us at stand revoked, cancelled and shall be void. this stage. (f) The NCLT to provide relief to the Para 95 of the judgment of Corporate Debtor from the execution/ the Hon'ble Supreme Court enforcement of any award, decree, order, in Ghanashyam Mishra & judgment against the Corporate Debtor in Sons Pvt Ltd v Edelweiss Asset any country by any forum of law/court Reconstruction Company Ltd4 lays down that when the resolution plan is approved by NCLT, the claims as provided in the resolution plan shall stand frozen and will be binding on the corporate debtor, and its employees, members, creditors, including the central and state government 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. (g) Neither the Resolution Applicant, nor any Such blanket reliefs cannot of its Affiliates, will be disqualified from or be granted at this stage, considered ineligible under the Code for since the parties against proposing and/ or implementing a plan in whom these orders will relation to the insolvency resolution of any operate, are not before us at Person, merely on account of the this stage. implementation of the Resolution Plan by the Resolution Applicant.

4 Civil Appeal No.8129/2019 a/w Civil Appeal No.1554/2021 and WP (Civil) No.1177/2020, dated 13.04.2021

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 (h) From the Approval Date, all inquiries, Such blanket reliefs cannot investigations and proceedings, suits, be granted at this stage, claims, disputes, proceedings in connection since the parties against with the Corporate Debtor and/or affairs of whom these orders will the Corporate Debtor, pending or operate, are not before us at threatened, present or future in relation to this stage. any period prior to the Approval Date, or arising on account of implementation of this Resolution Plan shall stand withdrawn and dismissed and all liabilities and obligations therefore, 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 fully, and permanently extinguished and no adverse orders passed in the said matters should apply to the Corporate Debtor or the Resolution Applicant. (i) No Governmental Authority (including Such blanket reliefs cannot regulatory, judicial and quasi-judicial be granted at this stage, authority) shall issue any orders, directions, since the parties against decrees, judgments, etc. that will be in whom these orders will contravention of the provisions of the operate, are not before us at Resolution Plan. this stage. (j) The Resolution Applicant has also The RA shall apply to the considered that by virtue of the order of the concerned authorities who Adjudicating Authority approving this shall then consider the Resolution Plan and since the Resolution application keeping in mind Applicant would acquire the Corporate the objectives of the Code. Debtor on a ‘going concern’ basis, all Any conditions attached to consents, licences, approvals, rights, the grant of such permits entitlements, benefits and privileges shall be duly complied with whether under law, contract, lease or by the Corporate Debtor license, granted in favour of the Corporate under the successful Debtor or to which the Corporate Debtor is Resolution Applicant. entitled or accustomed to shall, notwithstanding any provision to the contrary in their terms and notwithstanding that they may have already lapsed or expired due to any non-compliance or efflux of time, be deemed to continue without disruption for the benefit of the Corporate

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Debtor and the Resolution Applicant as required for implementation of the Resolution Plan. (k) Allow the Corporate Debtor to enjoy and No general reliefs can be avail in future any tax benefits, deductions, granted in the manner exemptions as per the relevant provisions of sought for. It is for the the Applicable Law which the Corporate appropriate taxing Debtor was entitled to before the authorities to consider the commencement of CIRP for the balance same in accordance with period as per the relevant provisions of the the relevant law. Applicable Law. (l) All Governmental Authorities to waive the Such blanket reliefs cannot Non-Compliances of the Corporate Debtor be granted at this stage, prior to the approval Date. since the parties against whom these orders will operate, are not before us at this stage. (m) Any charge, interest, penalty or dues pertaining to statutory authorities such as Para 95 of the judgment of Income Tax, Service Tax/ Goods and the Hon'ble Supreme Court Service Tax, Luxury Tax, Entertainment in Ghanashyam Mishra & Tax, VAT, or Sales Tax, Companies Act Sons Pvt Ltd v Edelweiss Asset etc., which remain outstanding even after Reconstruction Company Ltd5 payments proposed in this Resolution Plan lays down that when the prior to CIRP Commencement date shall resolution plan is approved stand extinguished and be waived by the by NCLT, the claims as respective authorities. provided in the resolution plan shall stand frozen and will be binding on the corporate debtor, and its employees, members, creditors, including the central and state government 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 5 Civil Appeal No.8129/2019 a/w Civil Appeal No.1554/2021 and WP (Civil) No.1177/2020, dated 13.04.2021

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 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. (n) Ministry of Corporate Affairs, Government No general reliefs can be of India, Provident Fund Authorities, Sales granted in the manner Tax Authorities/Service Tax sought for. It is for the Authorities/GST Council to waive penal appropriate authorities to charges for past non-compliances of consider the same in filing/secretarial obligations. accordance with the relevant law. (o) The Resolution Applicant understands that Jharkhand Bijli Vitran Jharkhand Bijli Vitran Nigam Limited has Nigam Limited is expected disrupted the electric supply of the to act in accordance with Corporate Debtor permanently and also the Insolvency & removed the metering systems and its Bankruptcy Code, 2016, equipment. The Resolution Applicant prays and the regulations made that in order to run the Corporate Debtor as thereunder, by recognising going concern, the approval of this plan by the binding nature of the the Adjudicating Authority shall be deemed Resolution Plan upon its to be a No Objection Certificate (NOC) approval by this from the Jharkhand Bijli Vitran Nigam Adjudicating Authority. Limited to the Corporate Debtor, in case Para 95 of the judgment of they do not continue to supply electricity to the Hon'ble Supreme Court the Corporate Debtor. The Resolution in Ghanashyam Mishra & Applicant and/or the Corporate Debtor will Sons Pvt Ltd v Edelweiss Asset not require any further approval or NOC for Reconstruction Company Ltd6 obtaining a new electric connection. This lays down that when the plan will be deemed to be considered as a resolution plan is approved NOC from the Electricity Board as by NCLT, the claims as electricity is an essential need and is very provided in the resolution important to continue the business of the plan shall stand frozen and Corporate Debtor as a going concern. will be binding on the corporate debtor, and its employees, members, creditors, including the central and state

6 Civil Appeal No.8129/2019 a/w Civil Appeal No.1554/2021 and WP (Civil) No.1177/2020, dated 13.04.2021

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 government 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. (p) To the extent payments provided under this The authority concerned is Resolution Plan, the order passed by this expected to act in terms of Adjudicating Authority approving the the Hon'ble Supreme Court Resolution Plan shall be deemed to be a judgments in the case of discharge, settlement or waiver for all other Supreme Court in Committee payments towards the Provident Fund of Creditors of Essar Steel v. Authority including but not limited to Satish Kumar Gupta & Ors., damages, interest and penalty etc. as levied 2019 SCC OnLine SC 1478, or to be levied by the said authority under decided on 15.11.2019. The Employees Provident Funds and Miscellaneous Provisions Act, 1952 or any other law applicable upto the plan approval date.

1. EXTINGUISHMENT OF CLAIMS / ENTITLEMENTS (Schedule 2) Sl. Relief and/or Concessions Sought Orders Thereon No. 1. Th e Resolution Professional issued a notice Granted in terms of the inviting all potential claimants to submit judgment of the Hon’ble their proofs of Claim. This was published in Supreme Court in newspapers in accordance with Applicable Committee of Creditors of Law. Pursuant to this notice the Resolution Essar Steel v. Satish Kumar Professional may have received letters from Gupta & Ors., 2019 SCC Persons whose Claims have not been OnLine SC 1478, decided crystallised as of the Insolvency on 15.11.2019, reinforced Commencement Date. The Plan is being Para 95 of the judgment of proposed in order to restructure the assets the Hon'ble Supreme Court

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Sl. Relief and/or Concessions Sought Orders Thereon No. and liabilities of the Corporate Debtor and in Ghanashyam Mishra & for the best interests of stakeholders of the Sons Pvt Ltd v Edelweiss Asset Corporate Debtor to the extent possible. Reconstruction Company Ltd7 With this objective, the Resolution which lays down that when Applicant assumes that all Persons that have the resolution plan is any Claims against the Corporate Debtor approved by NCLT, the have filed their Claims and the verifiable claims as provided in the Claims have been admitted by the resolution plan shall stand Resolution Professional and disclosed in the frozen and will be binding Information Memorandum and List of on the corporate debtor, Creditors. Accordingly, the Resolution and its employees, Applicant and the Corporate Debtor shall members, creditors, have no responsibility or liability in respect including the central and of any Claims against the Corporate Debtor state government or any attributable to the period prior to the date of local authority, guarantors implementation of the resolution plan other and other stakeholders. On than any payments to be made under in Part the date of approval of III (Proposal for all kinds of Creditors of the resolution plan by the Corporate Debtor). The Resolution Adjudicating Authority, all Applicant undertakes to pay the creditors such claims which are not a the amount committed under this plan for part of resolution plan shall takeover of the Corporate Debtor as going stand extinguished and no concern. person will be entitled to initiate or continue any proceedings in respect to a claim which is not part of the resolution plan. 2. O n and with effect from the date of No personal guarantees can implementation of the resolution plan, the be extinguished as a result guarantors, indemnity providers and like of the Resolution Plan. persons that have provided guarantees, indemnities, co-borrowing or like arrangements for and on behalf of the Corporate Debtor, including in order to secure the Debt availed of by the Corporate Debtor, shall not be entitled to exercise or enforce any subrogation rights (or similar rights) in respect of such arrangements, even

7 Civil Appeal No.8129/2019 a/w Civil Appeal No.1554/2021 and WP (Civil) No.1177/2020, dated 13.04.2021

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Sl. Relief and/or Concessions Sought Orders Thereon No. where such rights have already been exercised. 3. A s of the date of implementation of the This relief is otiose, resolution plan, any Debt owed by the inasmuch as if the debt itself Corporate Debtor which is barred by is barred by limitation, then limitation under Applicable Law, shall it is not legally recoverable. immediately, irrevocably and unconditionally stand extinguished, waived and withdrawn on and from the date of implementation of the resolution plan, and no Person shall have any further rights or Claims against the Corporate Debtor in this regard. The Resolution Applicant undertakes to pay the creditors the amount committed under this plan for takeover of the Corporate Debtor as going concern. 4. A ny Encumbrance, whether over Granted. immovable, movable assets, fixed deposits or cash or any other rights or privileges and including without limitation, security, letter of credit, bank guarantee or pledge provided by Corporate Debtor to the financial creditors, that was created/granted/arranged in connection with any Financial Debt or Operational Debt or any other debt or obligation of the Corporate Debtor, at any time prior to the Approval Date, shall automatically be released and all liabilities and obligations of the Corporate Debtor in relation to such Encumbrance or other form of collateral (including those created/ arranged by the Corporate Debtor as a guarantor or a third party security provider in relation to its subsidiaries, joint ventures, related parties or associates, if any) shall stand permanently extinguished and released on the approval of this Resolution Plan by the NCLT.

All title deeds and other documents (including charge documents, if any) held by KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Sl. Relief and/or Concessions Sought Orders Thereon No. the Financial Creditors or any trustee/ agent on their behalf in relation to the Existing Encumbrances shall be immediately returned to the Corporate Debtor as per the terms set out in Part -IV (Timeline and Steps of Events towards Implementation of the Proposed Plan). No existing Encumbrance shall be enforced by any creditor after Approval Date or otherwise and all existing proceedings / enforcement action shall be immediately withdrawn. 5. A ll liabilities (whether contingent or No blanket exemption of crystallised) in relation to any corporate the nature sought for can be guarantees, indemnities and all other forms granted at this stage. of credit support (including those availed by Individual cases shall be Corporate Debtor on a co-borrower brought to the notice of the arrangement, along with, any third party Adjudicating Authority for provided by the Corporate Debtor prior to orders thereon. the Implementation Date, and all contingent liabilities disclosed in the annual audited financial statements of the Corporate Debtor and liabilities which are not in notice of Corporate Debtor or not acknowledged by the Corporate Debtor, shall stand extinguished and discharged on and with effect from the Implementation Date, at a Nil value.

6. Th e payment to Persons contemplated in Granted. Part III (Proposal for all kinds of Creditors of the Corporate Debtor) shall be the Corporate Debtor’s and Resolution Applicant’s full and final performance and satisfaction of all its obligations to such Persons and all Claims (including, for the avoidance of doubt, any unverified portion of their Claims) of such Persons against the Corporate Debtor shall stand irrevocably and unconditionally settled and extinguished in perpetuity upon such discharge. The Resolution Applicant undertakes to pay the creditors the amount

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Sl. Relief and/or Concessions Sought Orders Thereon No. committed under this plan for takeover of the Corporate Debtor as going concern. 7. O n and with effect from the date of Granted. implementation of the resolution plan, all the outstanding negotiable instruments issued by the Corporate Debtor or by any Person on behalf of the Corporate Debtor including demand promissory notes, post-dated cheques and letters of credit, shall stand terminated and the Corporate Debtor’s liability under such instruments shall stand extinguished. 8. U pon the approval of the Plan by the NCLT Granted. under section 31 of the Code, all pending proceedings relating to the winding-up of the Corporate Debtor shall stand irrevocably and unconditionally abated in perpetuity. 9. O n and with effect from the Implementation Granted. Date, all securities convertible or exchangeable into Equity Shares and all rights to subscribe to Equity Shares, including convertible debentures, convertible preference shares, convertible loans (whether compulsorily or partially convertible or not), warrants, subscription rights under shareholders agreements entered into by the Existing Promoters, shall stand immediately extinguished and settled. 10. O n and with effect from the date of Granted. implementation of the resolution plan, the rights of any Person (whether exercisable now or in the future and whether contingent or not) to call for the allotment, issue, sale or transfer of shares or loan capital of the Corporate Debtor, whether on a change of control, or otherwise, shall stand unconditionally and irrevocably extinguished.

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Sl. Relief and/or Concessions Sought Orders Thereon No. 11. A ny Encumbrance (including any Granted in terms of the Encumbrance created pursuant to judgment of the Hon'ble Applicable Law and particularly section 281 Supreme Court in of the Income Tax, 1961 and section 81 of Ghanashyam Mishra & Sons the Central Goods and Services Tax Act, Pvt Ltd v Edelweiss Asset 1961 (whether over immovable, movable Reconstruction Company Ltd8 assets, fixed deposits or cash or any other rights or privileges and including without limitation, any security, letter of credit, or pledge provided by Corporate Debtor that was created/granted/arranged in connection with any Financial Debt or Operational Debt or any other debt or obligation of the Corporate Debtor, at any time prior to the Approval Date, shall automatically be released and all liabilities and obligations of the Corporate Debtor on behalf of the Corporate Debtor in relation to such Encumbrance or other form of collateral (including those created/ arranged by the Corporate Debtor as a guarantor or a third party security provider in relation to its subsidiaries, joint ventures, related parties or associates, if any) shall stand permanently extinguished and released on the approval of this Resolution Plan by the NCLT, without the requirement of any further action on part of any party and irrespective, of whether such Financial Creditor or Operational Creditor is receiving any payment under this Resolution Plan or not. All title deeds and other documents (including charge documents, if any) held by the Financial Creditors or any trustee/ agent on their behalf in relation to the Existing Encumbrances shall be immediately returned to the Corporate Debtor as per the terms set out in Schedule - IV (Timeline and 8 Civil Appeal No.8129/2019 a/w Civil Appeal No.1554/2021 and WP (Civil) No.1177/2020, dated 13.04.2021

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 Sl. Relief and/or Concessions Sought Orders Thereon No. Steps of Events towards Implementation of the Proposed Plan). No existing Encumbrance or guarantee (personal or corporate)/ or any other contractual comfort shall be enforced by any creditor after Approval Date or otherwise.

20. On hearing the submissions made by the Resolution Professional, and perusing the record, we find that the Resolution Plan has been approved with 100% voting share. As per the CoC, the plan meets the requirement of being viable and feasible for revival of the Corporate Debtor. By and large, all the compliances have been done by the RP and the Resolution Applicant for making the plan effective after approval by this Bench.

21. 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. No circumstances exist that militate against grant of approval for the resolution Plan.

22. As far as the question of granting time to comply with the statutory obligations/seeking sanctions from governmental authorities is concerned, the Resolution Applicant is directed to do the same within one year as prescribed under section 31(4) of the Code.

23. Any relief sought in the Resolution Plan, where any contract, agreement, understanding, proceeding, action, notice, etc., not specifically identified, or is for a future contingency, is, at this point of time, rejected.

24. Therefore, subject to the observations made in this Order, we hereby accord our approval to the Resolution Plan. The Resolution Plan shall form part of this Order.

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 25. The Resolution Plan as approved is binding on the Corporate Debtor and other stakeholders involved so that the revival of the Corporate Debtor can come into force with immediate effect.

26. The moratorium imposed under section 14 shall cease to have effect from the date of this order.

27. In case of non-compliance of this order or withdrawal of Resolution Plan, the CoC shall forfeit the Performance Security amount already paid by the Resolution Applicant.

28. The RP shall stand discharged from his duties with effect from the date of this Order. She shall, however, perform his duties in terms of the Resolution Plan as approved by this Adjudicating Authority.

29. The Resolution Applicant shall have access to all the Corporate Debtor’s records, documents, assets and premises with effect from the date of this order, to finalise the further line of action required for starting the business operations of the corporate Debtor.

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

31. 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 in the master data.

32. IA (IB) No.1332/KB/2020 along with CP (IB) No.1724/KB/2018 are disposed of accordingly.

33. The Registry is directed to send e-mail copies of the order forthwith to all the parties and their Ld. Counsel for information and for taking necessary steps.

KOLKATA BENCH Indian Overseas Bank v R.D.Rubber Reclaim Ltd IA(IB) 1332/KB/2020 in CP (IB) No.1724/KB/2018 34. Certified copy of this order may be issued, if applied for, upon compliance of all requisite formalities.

35. File be consigned to the record.

Rajasekhar Digitally signed by Rajasekhar V K V K Date: 2021.05.11 10:23:15 +05'30' Harish Chander Suri Rajasekhar V.K. Member (Technical) Member (Judicial) 11.05.2021 SR (LRA)

KOLKATA BENCH KOLKATA IA(IB) No.1455/KB/2020 in CP (IB) No.1724/KB/2018 In the matter of Indian Overseas Bank … Financial Creditor

Versus R.D.Rubber Reclaim Limited CIN: L51109WB1948PLC017239 … Corporate Debtor

And In the matter of Jharkhand Bijli Vitran Nigam Ltd … Applicant Versus Mamta Binani … Resolution Professional

Coram: Shri Rajasekhar V.K. : Member (Judicial) Shri Harish Chander Suri : Member (Technical)

Appearances: For Applicant : 1. Mr. A.K. Shrivastava, Advocate : 2. Mr. Akash Sharma, Advocate

For RP : Ms. Mamta Binani, RP in person Order reserved on: 23.03.2021 Order pronounced on: 11.05.2021

ORDER Per: Rajasekhar V.K., Member (Judicial)

1. This Court convened through video conferencing.

2. IA(IB) 1455/KB/2020 is an application by Jharkhand Bijli Vitran Nigam Ltd, one of the Operational Creditors of R.D.Rubber Reclaim Limited, the KOLKATA BENCH IA(IB) 1455/KB/2020 In CP (IB) No. 1724/KB/2018 Jharkhand Bijli Vitran Nigam Ltd v Mamta Binani, RP of RD Rubber Reclaim Ltd Corporate Debtor against praying to direct the Resolution Professional (RP) to consider its claim as per the revised claim filed on 20.10.2020.

3. Applicants case in brief is that – a. The Corporate Debtor was sent into Corporate Insolvency Resolution Process (CIRP) vide order of this Adjudicating Authority dated 25.02019 and Ms. Mamta Binani was appointed as the Interim Resolution Professional and later confirmed as Resolution Professional (RP). b. The Corporate Debtor has been a regular defaulter in paying electricity dues since the year 1995. There have been serious allegations of theft of electricity against the Corporate Debtor, the Hon’ble High Court, Ranchi in WP No.2197/2003 had directed the Corporate Debtor to pay ₹47,00,000/- (Rupees forty-seven lakh only) to the Applicant herein. c. The Applicant herein had served the Corporate Debtor with several notices under the Electricity Act, 2003 including that on 09.12.2019 and 17.01.2020 for disconnection of electricity because of non-payment of the dues and finally disconnected the electricity supply on 30.01.2020 and removed the metering system on 03.06.2020. d. On 08.06.2020, the Corporate Debtor that CRIP had been initiated against the Corporate Debtor, therefore the removal of metering system was in violation of the CIRP. e. Thereafter, a claim along with “provisional final bill” dated 13.06.2020 was filed before RP. On 15.07.2020, the RP sent a notice disputing the amount of provisional final bill. The Applicant herein submitted its claim before the RP on 17.07.2020 and subsequently filed a revised claim on 31.07.2020. f. On 07.10.2020 the Applicant provided bill abstract belonging to the Corporate Debtor in the books of the Applicant from the period 2012 to 2019 to the RP. The said abstract further helped the RP to verify and collate the Applicant’s claims. On 08.10.2020, the RP requested the Applicant to resubmit the claim form. On 18.10.2020, the RP informed the Applicant that a sum of ₹6,60,32,866/- has been verified and collated.

KOLKATA BENCH IA(IB) 1455/KB/2020 In CP (IB) No. 1724/KB/2018 Jharkhand Bijli Vitran Nigam Ltd v Mamta Binani, RP of RD Rubber Reclaim Ltd g. In furtherance of the mail dated 08.10.2020 from the RP, the applicant submitted its revised claim amounting to ₹7,66,69,324/- on 20.10.2020. On 21.10.2020, the RP admitted the claim only to the extent of ₹6,66,20,682/- thus, rejecting the claim of ₹1,00,48,642/- on grounds that the amount of ₹1,00,48,642/- is for delayed payment surcharge (DPS) for the period when the CIRP had been undergoing and moratorium was in force. h. The RP has erroneously and without considering the relevant documents and provisions rejected part of the claim. The RP has failed to provide any valid reason to reject the part of the claim. The DPS is delayed payment surcharge is payable since even after the commencement of CIRP the electricity connection was reconnected as per the Direction of the Adjudicating Authority, and the bills have been raised for the service and supply strictly as per law. The Applicant has not charged any penalty as wrongly. 4. Ms Mamta Binani, RP, appeared in person and submitted as follows: a. Regulation 13 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, mandates that the RP shall verify every claim as on the insolvency commencement date, within seven days from the last date of receipt of the claims. b. Further, Form B prescribed under regulation 7 of the Regulations ibid also requires in Sl. No.4 that the total amount of claim including interest shall be computed as on the insolvency commencement date. 5. The RP therefore contends that it is not within her competence to accept a claim in which various elements of the claim in question are for periods after the insolvency commencement date.

6. Mr Akhilesh Shrivastava, learned counsel appearing for the applicant, submitted that the claim is based on contractual obligations undertaken in pursuance of another statute, i.e., the Electricity Act, 2003. He urged us to take a harmonious view of both the Acts – the Electricity Act, 2003 and the IBC – and direct the RP to accept the claim. Further, he submitted that the KOLKATA BENCH IA(IB) 1455/KB/2020 In CP (IB) No. 1724/KB/2018 Jharkhand Bijli Vitran Nigam Ltd v Mamta Binani, RP of RD Rubber Reclaim Ltd electricity distribution companies (discoms) would suffer huge losses if, after supplying electricity as per the contract, they are deprived of their right to charge interest or Delayed Payment Surcharge (DPS).

7. We have heard the learned counsel appearing for the applicant and the RP, appearing as party in person, and perused the records.

8. We find from the records that admittedly, the claim of the applicant is not restricted to the amount due as at the insolvency commencement date, but includes period well into the CIRP. Therefore, prima facie, there is merit in the contention of the RP that she cannot include claims for any period after the commencement of the CIRP, i.e., after 29.10.2019.

9. Mr Akhilesh Shrivastava, learned counsel for the applicant, has contended that the applicant is a State entity, public money is involved, and that the claims are all in pursuance to a statutory obligation. However, we are unable to accept the contentions since the IBC is a complete Code in itself. Any claim filed with the IRP or the RP, as the case may be, has to be in consonance with the IBC and the regulations framed thereunder. There is no way that the RP can be directed to collate a claim, part of which has arisen after the insolvency commencement date. That will do violence to the statutory provisions of the Code itself.

10. Moreover, while the applicant may raise a contention that its claim is based on a statute, we are reminded of the provisions of section 238 of the Code, which stipulates that the IBC shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.

11. In this view of the matter, we hold that the RP was right in not accepting the claim of the applicant for time-periods extending beyond the insolvency commencement date. The RP was right in restricting the collation to the claim subsisting as on the insolvency commencement date.

KOLKATA BENCH IA(IB) 1455/KB/2020 In CP (IB) No. 1724/KB/2018 Jharkhand Bijli Vitran Nigam Ltd v Mamta Binani, RP of RD Rubber Reclaim Ltd 12. The result is that IA No.1455/KB/2020 shall stand dismissed as devoid of merit and it is ordered accordingly. 13. The Registry is directed to communicate a copy of this order to the counsel on record for the parties immediately.

14. Urgent certified copies of this order be issued on completion of requisite formalities. Rajasekhar V D Ra ig ja it s a e l k ly h s a i r g V n e K d by K Date: 2021.05.11 10:23:45 +05'30' Harish Chander Suri Rajasekhar V.K. Member (Technical) Member (Judicial) 11.05.2021