Asset Reconstruction Company (India) ... vs Unimark Remedies Limited (Through ...

Asset Reconstruction Company(India) Ltd. ...Appellant

Versus

Unimark Remedies Ltd. (Through Resolution Professional) & Anr. ...Respondents

Present:

For Appellant : Mr. Ravi Prakash, Mr. Satyender Kumar, Advocates

For Respondents: Ms. Pratiksha Sharma, Mr. Ankit Acharya, Advocates for R-2 Ms. Mahima Singh, Advocate for RP

ORDER

23.10.2019 - The Appellant 'Asset Reconstruction Company(India) Ltd.'

filed a 'Resolution Plan' which was approved by 'Committee of Creditors' and

submitted that the matter was brought to the notice of Adjudicating

Authority ('National Company Law Tribunal') Mumbai Bench which passed

impugned order dated 4th February, 2019 which reads as follows:-

"The Counsel representing the Committee

of Creditors, Resolution Professional and the

Counsel representing the suspended Director of

the company are present. All the stake holders

are present. It has been submitted by the

Company Appeal (AT)(Ins.) No. 131 of 2019 Counsel representing the Corporation Bank

that there is a lot of variations in both the plans

and the actual market value of the assets of the

Company, even in the recent past was about

Rs. 630 Crores whereas the Resolution

Applicants have come forward to infuse only to

an extent of about Rs. 280 Crores.

Apart from that it is alleged, the said successful

Resolution Applicant is actually not interested in

running the company but to dispose of one

particular unit of the Corporate Debtor more like a

slum sale to another party, which cannot be

accepted. Then this Bench had questioned the

Counsel for the Corporation Bank, being the

member of committee of creditors why did not they

object to such a proposal at the meeting of

Committee of Creditors and the answer was that

even though the objection were put forth before

Committee of Creditor & Resolution Professional the

same was not considered. This bench after hearing

from all the parties concerned is of the view that

both the Resolution Applicants have to improve

their offer and submit the same to this Bench at the Company Appeal (AT)(Ins.) No. 131 of 2019 2 earliest point of time. Apart from that this Bench

would like to know the exact value of the assts of

the Company / Corporate Debtor in the open

market at present and the consequences and

prospects in proceeding with the approved

Resolution Plan. We hereby direct all the Financial

Creditors and the members of the Committee of

Creditors may make their own analysis and submit

a comprehensive report to enable this Bench to take

appropriate decision. Our endeavour is to get the

best value for the assets of the Company/Corporate

Debtor. The Senior Counsel Representing the

successful Resolution Applicant submitted that the

time period prescribed under law is 270 days

already expired and even though the intention on

the part of the bench to get the best value is

appreciated, the time lines prescribed under the Act

are over and hence same cannot be gone into and

the decision of this Committee of Creditors is

required to be considered. We completely agree

with the arguments advance by the learned Senior

Counsel Mr. Doctor, but at the same time any effort

on the part of this Bench to enhance the value of the

Company Appeal (AT)(Ins.) No. 131 of 2019 3 Corporate Debtor, in our sincere opinion be

appreciated by the higher forums and just on the

basis of timelines if the matter is proceeded with,

there is a possibility that serious injustice can be

caused to public sector Banks and the workers. We

are also quite conscious that the suspended Board

of Directors also have enough stakes in the

Company and any decision strictly within the

parameters of timelines and even if the same is not

meritorious/unviable, would seriously hamper the

object of the code. In view of the above, while we

fully understand our responsibility to adjudicate

the matter within the stipulated time, we hereby

take a conscious decision in the best interest of the

Company and direct the Resolution Applicants to

improvise their offer to the best possible level in

consultation with the Committee of Creditors and a

final call will be taken only after the financial

creditors submits their reports with regard to the

merits of each plan. We also say that no financial

creditor be discriminated against on the basis of

securities provided. It is also important that the

claim of the Operational Creditor be considered

Company Appeal (AT)(Ins.) No. 131 of 2019 4 before considering the Resolution Plan.

Accordingly, the M.A. No. 191/2019 is allowed with

a direction to the IRP to examine the claim of Manali

Petrochemicals Limited."

Learned counsel appearing on behalf of 'Resolution Professional' submits

that with regard to 'Corporate Insolvency Resolution Process' of 'Unimark

Remedies Ltd.' ('Corporate Debtor') in respect of valuation there being a split

verdict of Adjudicating Authority, the matter was referred to 3rd Hon'ble Member.

This Appellate Tribunal in Company Appeal (AT)(Ins.) No. 1078 of 2019 - Amit

Gupta - 'Resolution Professional' of 'Unimark Remedies Ltd.' Vs. 'Corporate Bank

and another' by order dated 17th October, 2019 did not consider the adverse

remarks as were made against the 'Resolution Professional'. Parties were asked

to bring the aforesaid facts to the notice of 'National Company Law Tribunal'

which has to pass the appropriate order to place the matter before the 3rd

Hon'ble Member.

It is stated that thereafter no decision has been taken by 3rd Hon'ble

Member. It appears that the matter has not been placed before the Hon'ble

President 'National Company Law Tribunal'. Earlier, this Appellate Tribunal

asked the Adjudicating Authority to pass final order under Section 31 of the 'I&B'

Code, however, we find that because of the difference of opinion between two

Hon'ble Members of the Adjudicating Authority relating to valuation of the assets

of the Company, no final order has been passed yet. The Appellant merely being

Company Appeal (AT)(Ins.) No. 131 of 2019 5 a 'Resolution Applicant' has no right to assail the final order which is yet to be

passed.

In the circumstances, we are not inclined to deliberate on the issue as

raised in this appeal. If the 'Resolution Plan' submitted by the Appellant is not

approved or is rejected by the Adjudicating Authority, it will be open to the

Appellant to raise the issue at that stage.

The appeal stands disposed of with aforesaid observation.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

ss/gc

Company Appeal (AT)(Ins.) No. 131 of 2019 6