Approval of Resolution plan- UM Green Lighting Private Limited

ORDER The present IA No. 5974 of 2023 has been preferred by Mr. Rajiv Bhatnagar, Resolution Professional qua M/s UM Green Lighting Pvt. Ltd. (hereinafter referred to as, the ‘Applicant/RP’) under Section 30(6) of IBC, 2016, seeking the following reliefs:

“a) Allow the present Application; b) Approve the Resolution Plan submitted jointly by Embrace Gas Pipelines Private Limited and M/s. Printtech in the CIRP of the Corporate Debtor, in terms of Section 31 of the IBC. c) Pass such other or further and other relief(s) as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the present case” 2. To put the facts concisely, the underlying main petition C.P.(IB)- 2581/(PB)/2020 was filed by Jakson Engineers Limited against the Corporate Debtor, namely, UM Green Lighting Private Limited under Section 9 of the IBC, 2016, which was admitted vide Order dated 13.12.2021 of this Adjudicating Authority and the Corporate Insolvency Resolution Process (CIRP) in respect of the Corporate Debtor was initiated. The Corporate Debtor is currently represented through its RP, Mr. Rajiv Bhatnagar.

3. This Tribunal initially appointed Mr.Amar Gopal Gambhir as the IRP of the Corporate Debtor who was replaced by Mr.Rajiv Bhatnagar, RP in the Second Meeting of CoC dated 11.02.2022.

4. It is stated by the Applicant that in terms of Regulation 6(1) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the Applicant made a Public Announcement in Form-A on 17.12.2021 to invite claims, a copy of which was also uploaded on the website of IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

Insolvency and Bankruptcy Board of India (IBBI). It is further stated by the Applicant that it had constituted CoC with sole Financial Creditor i.e., Canara Bank.

5. The RP has got the assets of the Corporate Debtor valued under the relevant rules and the Fair Value and Liquidation Value are as below:

S. No. Name of Class of Fair value (INR) Liquidation Valuer Asset/s Value (INR) 1. Crest Plant & 64,65,435/- 49,03224/- Valuations Machinery Securities and Financial 23,63,20,544/- 17,91,96,066/- Assets 2. Gtech Plant & 59,89,356/- 47,91,485/- Valuers Pvt. Machinery Ltd. 3. Gtech Securities 23,69,53,000/- 17,64,16,000/- Valuers Pvt. and Financial Ltd. Assets

6. The only Financial Creditor in the CoC is Canara Bank, which got 100% voting share and the entire credit of the bank amounting to Rs. 26,22,01,249/- has been admitted.

7. The details of the meetings of CoC as stated in the Application reads thus:

CoC Meeting Date of Meeting Summary of Meeting

1st Meeting 12.01.2022 The IRP convened the first meeting of the CoC on 12.01.2022 where the CoC rejected the IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

resolution for appointment of the IRP as the Resolution Professional for the Corporate Debtor and expressed its intention to appoint a different resolution professional. However, no resolution for such fresh appointment was passed in the said meeting.

2nd Meeting 11.02.2022 On 11.02.2022, the second meeting of the CoC was convened, wherein the CoC resolved to appoint the Applicant as the Resolution Professional for the Corporate Debtor.

3rd Meeting 06.06.2022 In the 3rd CoC meeting held on 06.06.2022, the IRP proposed a resolution for the extension of the CIRP Period as the initial period of 180 days was set to expire on 11.06.2022, which was duly approved by the CoC by 100% voting share.

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4th Meeting 01.12.2022 Despite the continuing non-cooperation by the suspended management, in an effort to meet his duties under the Code and the rules and regulations framed thereunder, the IRP, in the 4th CoC meeting, held on 01.12.2022, raised inter alia the issues of draft expression of interest, Form G, Request for Resolution Plan, Evaluation Matrix and appointment of registered valuers. However, on the request of the CoC, the same were deferred.

5th Meeting 30.12.2022 In their fifth meeting held on 30.12.2022, the CoC approved the draft of Form G, Request For Resolution Plan, Evaluation Matrix, albeit incomplete in view of the continuing non-cooperation by the suspended management of the Corporate Debtor.

IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

6th Meeting 08.02.2023 The Applicant convened the 6th meeting of CoC on 08.02.2023, wherein the issues with respect to the appointment of valuers, Information Memorandum, Form G and appointment of forensic/ transaction auditors was against discussed. However, since the relevant records were yet to be obtained from the suspended management, all such issues were again deferred.

7th Meeting 17.03.2023 In the 7th CoC meeting held on 17.03.2022, the CoC took inter alia the following decisions for the CIRP of the Corporate Debtor: a. Appointment of 2 Registered Valuers for the Corporate Debtor; b. Seeking exclusion of period from 13.12.2021 to 10.01.2023 and further extension of 180 days from 10.04.2023 from this Hon'ble Tribunal in the CIRP period of the Corporate Debtor;

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c. Publication of Form G to invite expression of interest from prospective resolution applicants; d. Approval of the proposed evaluation matrix; and e. Approval of the proposed RFRP.

8th Meeting 15.05.2023 Progress of CIRP was updated to CoC.

9th Meeting 24.05.2023-25.05.2023 Terms of Performance Bank Guarantee were decided by CoC.

10th Meeting 29.05.2023 No resolution was passed.

11th Meeting 21.06.2023 CoC approved the resolution for publication of Form-G and rejected the Liquidation.

12th Meting 28.08.2023 Resolution Plans were discussed.

13th Meeting 25.09.2023 Resolution plans received by the CoC were put on voting by the Applicant in the 13th CoC meeting held on 25.09.2023. In the said meeting, the CoC approved the resolution plan

IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

submitted by Respondents 2 and 3 and rejected the resolution plan submitted by Mr. Gaurav Mamik by a voting share of 100%.

8. The ‘Form-G’ was published on 21.03.2023, and again on 24.06.2023 to invite Expressions of Interest (EOI) from the potential Resolution Applicants. As per the latest Form-G dated 24.06.2023, the last date of submission of EOI was 19.07.2023. The Applicant submits that it had received EOIs from 02 interested parties viz. one being Mr. Gaurav Mamik (suspended director of the Corporate Debtor) and another being jointly from Embrace Gas Pipelines Private Limited and M/s. Printtech.

9. In the 12th meeting held on 28.08.2023, the respective resolution plans received from both the resolution applicants were opened and discussed by the CoC.

10. In furtherance, both the resolution plans received by the CoC were put on voting by the Applicant in the 13th CoC meeting held on 25.09.2023. In the said meeting, the CoC approved the resolution plan submitted by Respondents 2 and 3 and rejected the resolution plan submitted by Mr. Gaurav Mamik by a voting share of 100%.

11. The “Summary of the Resolution Plan” submitted by the Applicant reads thus:

IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

“SUMMARY OF RESOLUTION PLAN

39. That the approved Resolution Plan provides for the following payments to the creditors of the Corporate Debtor:

40. That in addition to the aforesaid, the Resolution Applicant has also proposed to infuse an amount of INR 24,61,410.03 in the form of Working Capital, as and when the need arises. Furthermore, the Regulatory Fee under Regulation 31A of the CIRP Regulations has also been proposed to be borne by the Resolution Applicant over and above the amounts proposed under the Resolution Plan. IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

41. That the respective payments proposed to the Operational Creditors by the Resolution Applicant are proposed to be completed within 60 days from the approval of the Resolution Plan by this Hon'ble Tribunal, and the payment proposed to the Secured Financial Creditor is proposed to be completed within 90 days from such date.

42. That the Resolution Applicant has further proposed that the Secured Financial Creditor shall pursue the applications for Avoidance Transactions currently pending before this Hon'ble Tribunal and any amount received therefrom shall pass to such Secured Financial Creditor, over and above the amounts proposed under the Resolution Plan. Pertinently, as on the date of filing of the present application, an application under Section 43 for avoidance of preferential transactions is sub-judice before this Hon'ble Tribunal, wherein an aggregate amount of INR 2,95,49,266- is claimed to be liable for reversal to the Corporate Debtor.

12. The details of compliances made relevant sections of IBC, 2016 and IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 as stated in the Form-H which reads thus:

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12.1 The other compliances under the relevant Sections of the Code and the Regulations made thereunder are as below: I.

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IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

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IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

13.1 The Resolution Professional has stated that the Corporate Debtor is a MSME and has filed an affidavit stating that the Resolution Applicant is not disqualified under the provisions of Section 29A of the Code. In the course of the present proceedings, the matter was listed for being spoken to, seeking clarification pertaining to the compliance of Section 29A of the Code. The Resolution Professional has stated that the Affidavits from the two PRAs, who have subsequently been SRAs, were submitted at the time of submission of the Expression of Interest. The Resolution Professional in his Affidavit dated 10.05.2024 has enclosed the copies of the Section 29A Affidavits submitted by the two SRAs i.e. Embrace Gas Pipeline Private Limited and Printtech (a Partnership Firm).

13.2 As regards compliance with Section 30(2) of the Code, it is stated that the liquidation value payable to the Operational Creditors (other than workmen and employees) is NIL as the amount of the admitted claim of the Secured Creditors is more than the value of the Corporate Debtor and are paid in priority to Financial Creditors.

13.3 With respect to PF dues it has been categorically mentioned by the RP that he has not received any claim with respect to Provident Fund dues. On this issue, we are of the view that this does not absolve the Corporate Debtor from paying any liability towards PF & Gratuity, if the same arises

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in the future. The SRA is, therefore, directed to pay the same if any, in compliance of the order of the Hon’ble NCLAT in the Case of M/s Jet Airways India Ltd. upheld by the Hon’ble Supreme Court in Civil Appeal No -107 of 2023 with Civil Appeal Nos 465 - 469 of 2023.

13.4 As per clause 7.ag of the Resolution Plan the Avoidance Application shall be pursued by the Secured Financial Creditors and the proceeds of the same shall be distributed as per Section 53 of IBC, 2016.

13.5 The list of Government dues and amount of claim admitted as mentioned in the Application reads thus:

As per Form-H, the SRA has proposed to pay Rs. 11.11 lakhs against the claim of Rs. 3,32,68,330.00 of Government dues.

14. The summary of Contribution of Funds by Resolution Applicant as mentioned in para 7af of the Plan is extracted below:

IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

It is stated that the entire amount of Rs. 12,88,51,721.34/- including the balance amount already infused as security deposits, plus interest accrued IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

thereon would be paid on or before 90 days from the date of issue of certified copy of order for approval of Resolution Plan.

15. The details of the implementation schedule of the plan is mentioned in clause 7aj of the plan which reads thus:

16. The details of Management and Control of the business of Corporate Debtor during the term of Resolution Plan is stated under Clause 4 of the Resolution Plan contents of which reads thus:

“The Plan provides for appointing new Directors on the Board of Corporate Debtor with required competency and experience and also to appoint Independent Non-Executive Directors and Executive Directors within 03 months of the effective dates. It also provides for management

IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

and control of Corporate Debtor under the leadership of the lead member of Resolution Applicant (RA). It also proposes to restructure the equity of the Corporate Debtor by substantial acquisition of shareholding by the RA and to continue to remain listed on Bombay Stock Exchange. Provisions for appointment of Statutory, Internal and Cost Auditors have also been made. It also provides for continued Corporate existence, whereby the operation change in the normal course of business of the Corporate Debtor shall continue under the supervision of the Resolution Applicant. It provides for Indemnification of the Corporate Debtor and member of the new promoter group.”

17. As can be seen from the Clause-7 of the certificate given by the RP on prescribed form viz. Form-H, the SRA has proposed to pay much less than the amount admitted by the RP and the Liquidation value, to the different stakeholders.

18. But as per the law laid down by the Hon’ble Supreme Court in Ebix Singapore Private Limited Vs Committee of Creditors of Educomp Solutions Limited & Anr., (Civil Appeal No. 3224 of 2020) that while considering an application for approval of plan, this Adjudicating Authority need only to see as to whether there is compliance of the provisions of Section 30(2) of IBC, 2016. it is not for this Tribunal to interfere with the same and it is for the Committee of Creditors to take a call in this regard. In this context it would not be out of place to refer to the Judgement of Hon’ble Supreme Court passed in Vallal RCK vs. M/s Siva Industries and Holdings Limited and Others, (Civil Appeal Nos. 1811-1812 of 2022),

IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

where a reference is made to catena judgements of the Hon’ble Apex Court, and it is held that: “21. This Court has consistently held that the commercial wisdom of the CoC has been given paramount status without any judicial intervention for ensuring completion of the stated processes within the timelines prescribed by the IBC. It has been held that there is an intrinsic assumption, that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan. They act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. xxxxx 27. This Court has, time and again, emphasized the need for minimal judicial interference by the NCLAT and NCLT in the framework of IBC. We may refer to the recent observation of this Court made in the case of Arun Kumar Jagatramka v. Jindal Steel and Power Limited and Another : “95. ….However, we do take this opportunity to offer a note of caution for NCLT and NCLAT, functioning as the adjudicatory authority and appellate authority under the IBC respectively, from judicially interfering in the framework envisaged under the IBC. As we have noted earlier in the judgment, the IBC was introduced in order to overhaul the insolvency and bankruptcy regime in India. As such, it is a carefully considered and well thought out piece of legislation which sought to shed away the practices of the past. The legislature has also been working hard to ensure that the efficacy of this legislation remains robust by constantly amending it based on its experience. Consequently, the need for judicial intervention or innovation from NCLT and NCLAT should be kept at its bare minimum and should not disturb the foundational principles of the IBC…..”

IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

19. Hence, we do not deem it proper to comment on the amount offered to be paid by SRA to various stakeholders.

20. The Applicant/RP has also filed on record, the proof of the Performance Guarantee worth Rs.5 Crore deposited by the SRA vide RTGS Mode. The Bank Statements in respect of the same have been placed on record.

21. The Applicant has sought various reliefs and concessions stipulated under Clause 7ak of the Resolution Plan, which reads thus:-

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IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

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IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

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IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

22. As can be seen from the above, the Resolution Applicant has sought certain relief and concessions which fall in the jurisdiction of different Government Authorities, and/or are subjected to the provisions of different laws for the time being in force. In this connection, it is made clear that the amount payable by the SRA in terms of the plan to different creditors, stakeholders, and to keep the Corporate Debtor as a going concern is not a subject matter of any condition, assumptions, relief/concessions and/or qualification. It also needs to be underlined that the provisions of Section 31(4) of IBC, 2016 mandates the Resolution Applicant to obtain the IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

necessary approval required under any law for the time being in force within a period of one year from the date of approval of the resolution plan by the Adjudicating Authority under Section 31 of the IBC, 2016 in terms of the provisions of Section 14 of the Code even during the period of CIRP, no default in payment of current dues is a precondition for continuation of the License, Permit, Registration and similar rights. Thus, even during the moratorium period, the facilities mentioned above are made available to the CD only when there is no default in payment of the current dues, on approval of the resolution plan, the SRA/CD cannot be put on a better footing by exempting it from paying its legitimate dues under the law. For the sake of convenience, the explanation below Section 14 of the code is extracted below:

“14. Moratorium. – (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely: - (a) ….. (b) ….. (c) ….. (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor.

Explanation.- For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a licence, permit, registration, quota, concession, clearance or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license,

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permit, registration, quota, concession, clearances or a similar grant or right during the moratorium period;” (Emphasis Supplied) 23. Furthermore, the Code provides for consideration of the claims, by the IRP/RP in terms of the provisions of Section 18(b) and Section 25(b) read with the relevant regulations.

24. The Code, further, provides for preparation of an Information Memorandum in terms of the provisions of Regulation 36(2) of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, which contains, inter alia, a list of creditors along with the amounts claimed by them. Regulation 36(1) of the regulations (ibid), provides for submission of the said Information Memorandum to each member of the COC. Regulation 36A provides for invitation for expression of interest and Regulation 36B provides for a request for a Resolution Plan. It is with reference to the Information Memorandum and Evaluation Matrix that the RP issues a Request for Resolution Plan. The Request for Resolution Plan details each step in the process and the manner and purposes of interaction between the Resolution Professional and the Prospective Resolution Applicant. The Resolution Plan submitted after consideration of the IM, EM and the RFRP is then examined by the Committee of Creditors. Even then, it needs to satisfy the requirements of Regulations 37 and 38 of the extant regulations and only then it can be approved by the COC in terms of the provisions of Regulation 39 of the aforementioned regulations. After such approval, the Plan effectively becomes a contract entered into between CD represented through RP, SRA, the creditors of the CD, and other

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stakeholders and is binding on all of them. Section 31(1) of IBC, 2016, thus, takes care of most of the reliefs/concessions/waivers which are required by the Resolution Applicant. Furthermore, Section 32A of the Code provides for cessation of the liability for offences committed by the CD prior to initiation of the CIRP subject to the conditions laid down in the said section.

25. In this context a reference is made to the decision of Hon’ble NCLAT in Worldfa Exports Pvt. Ltd Vs. Vivek Raheja and Anr. [Company Appeal (AT) (Insolvency) No. 827 of 2024 & I.A. No. 2994 of 2024] dated 30.04.2024 wherein a challenge was laid against the following observation of the NCLT:

“16. However, the resolution plan shall not be construed as waiver to any statutory obligations/liabilities arising out of the approved resolution plan and the same shall be dealt in accordance with the appropriate authorities concerned as per relevant laws. We are of the considered view that if any waiver is sought in the resolution plan, the same shall be subject to approval by the concerned authorities. The same view has been held by the Hon’ble Supreme Court in Ghanshyam Mishra and Sons Private Limited vs. Edelweiss Asset Reconstruction Company Limited and Embassy Property Development case (supra).” The Hon’ble NCLAT, however, dismissed the Appeal with the following observation: “Adjudicating Authority has already referred to the Judgment of the Hon’ble Supreme Court in the matter of `Ghanshyam Mishra & Sons Private Limited’ Vs. `Edelweiss Asset Reconstruction Company Limited’, in Civil Appeal No. 8129 of 2019, which clearly laid down that all claims which have not been dealt in the Resolution Plan does not survive after the approval of Resolution Plan. 6. Insofar as statutory waivers and concessions, Adjudicating Authority has rightly observed that SRA to file appropriate necessary application before the necessary Forum/Authority in order to avail the relief and the concession. 7. The Resolution Plan having been approved it is always open for the Applicant to make an appropriate application before the Statutory Authority for grant of such relief as permissible after approval of the Resolution Plan. 8. It goes without saying that all past liabilities which are not dealt with in the Resolution Plan stand extinguished by view of the IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

Judgment of the Hon’ble Supreme Court in `Ghanshyam Mishra & Sons Private Limited’ (Supra) which is a well settled law.” In sum and substance, the SRA/CD would be entitled to no other relief/concession/waiver from this Adjudicating Authority except those available to it, as per the provisions of Section 31(1) and 32A of IBC, 2016. The SRA is, however, at liberty to approach the relevant authorities, who would consider these claims as per the provisions of the relevant law, in an expeditious manner.

26. In the sequel to the above, we are inclined to approve the Resolution Plan as approved/recommended by the CoC as placed by the Applicant before this Adjudicating Authority. We, therefore, allow the present Application and approve the COC-approved Resolution Plan as placed before us by the Applicant/RP with the following directions: - (i) The approved Resolution Plan shall become effective from the date of passing of this Order and shall be implemented strictly as per the term of the plan and implementation schedule given in the Plan; (ii) All claims which have not been dealt with in the Resolution Plan do not survive after the approval of the Resolution Plan. (iii) The SRA/CD would be entitled to no other reliefs/ concessions/waivers except those are available/permissible to it as per the provisions of Section 31(1) and 32A of IBC, 2016. The SRA is at liberty to approach the relevant authorities who would consider these claims as per the provisions of the relevant law in an expeditious manner. (iv) The Monitoring Committee as provided in the Resolution Plan shall be set up by the Applicant/RP within 07 days of passing of this Order, which in turn, shall take all necessary steps for time bound implementation of the Resolution Plan as per approval. (v) The order of the moratorium in respect to the corporate debtor passed by this Adjudicating Authority under Section 14 of the IBC, 2016 shall cease to have effect from the date of passing of this Order; and IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.

(vi) The Resolution Professional shall forward all the records relating to the conduct of the CIRP and the Resolution Plan to the IBBI for its record and database. 27. The Court Officer and Resolution Professional (RP) shall forthwith make available/send a copy of this Order to the CoC and the Successful Resolution Applicant (SRA) for immediate necessary compliance.

28. A copy of this order shall also be sent by the Court Officer and Applicant to the IBBI for their record.

Sd/- Sd/- (SUBRATA KUMAR DASH) (ASHOK KUMAR BHARDWAJ) MEMBER (T) MEMBER (J)

IA. No. 5974/2023 in (IB)-2581/(ND)/2019 Jakson Engineers Limited. Vs UM Green Lighting Private Limited.