In the matter of Abhijeet MADC Nagpur Energy Private Limited

An application under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 Filed by Rankini Power Generation Private Limited …Applicant Versus Abhijeet MADC Nagpur Energy Private Limited. …Respondent No.1 Maharashtra Airport Development Company Limited …Respondent No.2 In the matter of Alchemist Assets Reconstruction Company Limited …Financial Creditor Versus Abhijeet MADC Nagpur Energy Private Limited … Corporate Debtor

Order Pronounced on: 13.03.2024 Coram: Hon’ble Member (Judicial) : Justice V.G. Bisht (Retd.) Hon’ble Member (Technical) : Mr. Prabhat Kumar Appearances: For the Applicant : Mr. Gaurav Joshi, Senior Advocate For the Respondent No.2 : Mr. Amir Arsiwala, Advocate For the Liquidator : Ms. Shaivi Bhamaria, Advocate

ORDER

Per: Prabhat Kumar, Member (Techincal)

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 1. The present Application is filed by the Successful Bidder to place on record the date of issuance of the sale certificate by the Mr. Vinod Kumar Kothari, the Liquidator of Abhijeet MADC Nagpur Energy Pvt Ltd ("Corporate Debtor") as the date of acquisition ("Acquisition Date") of the Corporate Debtor by the Applicant on a going concern basis under Liquidation along with certain reliefs, concessions, waivers and exemptions. 2. The Corporate Debtor was liquidated vide Order dated 31.08.2018. Mr. Vinod Kumar Kothari was appointed as the Liquidator. Pursuant to the commencement of liquidation, the liquidation estate of the Corporate Debtor was formed in accordance with Section 36 of the Code, comprising of all the assets and properties of the Corporate Debtor. On 04.08.2020, the Liquidator invited an expression of interest for the acquisition of assets on a slump sale basis ("Slump Sale Invitation"). The Slump Sale Invitation was published in the All India Edition of Business Standard (English) and Navshakti (Marathi) on 06.08.2020 and 07.08.2020 respectively.

3. On 05.10.2020, Applicant herein submitted their interest for the Slump Sale Invitation along with the pre-requisite earnest money deposit of Rs.2,00,00,000/- (Rupees Two Crores only). Thereafter, the e-auction was conducted by the Liquidator on 21.10.2020, on the e-auction platform Linkstar Infosys Private Limited, at a reserve price of Rs.98,96,00,000/- (Rupees Ninety Eight Crores Ninety Six Lakhs only). In the said e-auction process, Applicant emerged as the Auction Purchaser/HI Bidder. 4. Thereafter, the Liquidator, in terms of the Slump Sale Invitation, issued the Confirmation and Demand Letter to the Applicant on 27.10.2020 thereby calling for the payment of the sale consideration, in the manner laid down in the payment schedule. Subsequently, the payment towards the first tranche, that is, 25% of the MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 Sale Consideration, less EMD already was paid and the second and final tranche (75% of the Sale Consideration excluding interest) was paid by the Applicant herein on 16.11.2020 and 11.12.2020, respectively. 5. The Liquidator thereafter invited Invitations for the acquisition of the legal entity of the Corporate Debtor on 04.12.2020 (hereinafter referred to as "Legal Entity Invitation"), at a reserve price of Rs.91,50,000/- (Rupees Ninety-One Lakhs Fifty Thousand only).

The e-auction was conducted by the Liquidator on 11.12.2020, wherein the Applicant herein emerged as the successful bidder. Soon thereafter, the Confirmation and Demand Letter pursuant to the Legal Entity sale were issued to the Applicant on 11.12.2020, for payment of sale consideration as per the payment schedule ascribed therein. The sale consideration pursuant to the Legal Entity sale was paid by the Applicant on 15.12.2020. 6. The Liquidator after taking into consideration that the Applicant is the successful bidder for both the sale processes, deemed it appropriate, for the sake of convenience, to execute both the Slump Sale and Legal Entity Sale vide a Single documentation process. The two sale processes were certified vide Sale Certificates dated 19.12.2020 and 21.12.2020. 7. The Liquidator, for the Applicant herein to get clarity on the issue of whether the acquisition of the Legal Entity along with the Slump Sale Undertaking of the Corporate Debtor, allowed the Applicant the benefit of continuity of the legal entity. Thereafter, the Liquidator filed an Interlocutory Application No.2504/2020.

This Tribunal, vide Order dated 28.04.2023, disposed of Interim Application No.2504/2020 by taking on record the completion of the sale process of the Corporate Debtor and the Liquidation Process, except pending litigation. However, it was stated therein that it is for the Auction Purchaser i.e. Applicant herein to seek the reliefs and MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 concessions in terms of Para 5.23 of the Interlocutory Application No.2504/2020. 8. Accordingly, the Applicant has sought 51 reliefs and concessions for running the Corporate Debtor as a going concern. Before we delve into a detailed discussion about reliefs and concessions sought by the Applicant it is important to deal with the objections raised by Respondent No.2. Respondent No. 2 is the (a) Special Planning Authority for the notified area u/s. 40 (1B) of the Maharashtra Regional and Town Planning Act, 1966 (Mah XXXVII of 1966) & the “Planning Authority” u/s. 2(19)(a) of the Maharashtra Regional and Town Planning Act, 1966, (b) SEZ Developer entrusted with the duty of development of MIHAN SEZ at Nagpur, (c) Deemed Distribution Licensee entrusted with duties under the proviso to Section 14(b) of the Electricity Act, 2003 and the (d) Project Owner of the land on which the Power Project has been built by the Corporate Debtor/Project Company.

9. The Respondent No.2 submits that a joint venture company i.e. Corporate Debtor was incorporated between M/s Abhijeet Infrastructure Limited (Project Sponsor) and the Respondent No.2 (Project Owner). The Respondent No.2 submits that it was required to hold 26% equity in the project company as per the concession agreement dated 07.11.2007. The primary grievance of Respondent No.2 is that the Liquidator has entered into an Agreement of Sale with the Applicant without any consent/approval from Respondent No. 2. The Respondent No.2 further submits that the sale agreement could not have been executed as the ownership rights are not vested with the Corporate Debtor. 10. As per Clause 6.2(a) of the Concession Agreement dated 07.11.2007, Clauses 2.2(iii), 3.3(c) and 5.3(a), (g)&(h) along with Schedule-5 of the Shareholders’ Agreement dated 02.04.2009, the Respondent No. 2 is required to hold minimum 26% of the issued equity capital of the Project Company. As per Clause 5.3(h) of the MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 Shareholders’ Agreement dated 02.04.2009, all the shares of Respondent No. 2 i.e., 26% of the shareholding, were required to be transferred to M/s. Abhijeet Infra Limited/Project Sponsor for considerations of the transfer of all the assets of the Corporate Debtor/Project Company to the Respondent No. 2 at the end of the concession period, as set out in the Concession Agreement dated 07.11.2007.

Thus, in the event all the shares of Respondent No. 2 i.e., 26% shareholding are extinguished, then the Respondent No. 2 would be unable to receive all the assets of the Project Company at the end of the Concession Period, which are required to transferred back to Respondent No. 2 on a Build, Operate & Transfer (BOT) basis. Hence, extinguishment of the shares of the Respondent No. 2 would hinder the transfer of the entire Project on a BOT Basis, gravely affecting the public interest, thus, depriving the Respondent No. 2 of its property. 11. The Respondent No.2 submits that assets of the land of the project did not go to the Corporate Debtor and the entire project was to revert back to the Respondent No.2 after the expiry of 33 years from the grant of concession. 12. The Respondent No.2 has raised multifarious objections to the reliefs and concessions sought by the Applicant herein, we have gone through the reliefs sought by the Applicant and the said objections raised by the Respondent No.2. For the sake of brevity, we deem it fit to summarize the objections raised in a nutshell. The Respondent No.2 has opposed all reliefs seeking dilution of its 26% shareholding held in the Corporate Debtor by virtue of Indenture of Lease dated 26.11.2008 and Lease Deed dated 16.06.2010, the shares held by the Respondent No. 2, which were allotted by the Corporate Debtor to the Respondent No. 2 as “Lease Premium”, as per the Indenture of Lease dated 26.11.2008 and Lease Deed dated 16.06.2010.

The Respondent No.2 has opposed any relief which bestows on the Applicant ownership

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 rights thereby debarring the Respondent No.2 from exercising its rights pursuant to the agreements entered into between them. Moreover, it is argued that the project company has to shift back to the Respondent No.2 after the expiry of the term, therefore, it is the Respondents case that the reliefs sought jeopardize this understanding and hence are met with resistance from Respondent No.2. 13. The Applicant submits that in paragraph nos. 3.1 to 3.51 of the Application, the Applicant has claimed 51 reliefs & concessions. The Applicant submits that it is not pressing the following reliefs & concessions viz. the reliefs & concessions in paragraph nos. 3.5, 3.6, 3.19, 3.20, 3.21, 3.25, 3.28, 3.39, 3.40 and 3.51. 14. Further, the Applicant has made a statement that it is not seeking to acquire any rights which are better or higher than that of the Corporate Debtor. The Concession Agreement, in Article 2 thereof, provides that the Corporate Debtor was under an obligation to transfer the project to MADC at the end of the term of the Concession Agreement. The Corporate Debtor as well as the Applicant shall be bound by this clause and the Applicant does not seek to retain any benefit which is in violation of the Concession Agreement. Article 2 read as follows:

“ARTICLE 2 … For this purpose, Project Company shall … Transfer the Project to MADC at the end of Term of this Agreement.” 15. The Applicant, being the successful purchaser in the auction under the Liquidation Process Regulations, has paid more than Rs. 100 crores (as set out hereinafter) to the Liquidator of the Corporate Debtor and aims to continue the Corporate Debtor as a going concern and to enable the power generation business of the Corporate Debtor to continue. The Applicant is pressing only those reliefs & concessions which are absolutely necessary for continuing the Corporate Debtor as a going concern and to MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 enable the Corporate Debtor to carry out and continue its business of power generation. The continuation of the business of the Corporate Debtor which the Applicant has acquired will aid economic activity, employment generation and substantial generation of revenue for the statutory authorities in the form of taxes, duties, fees and charges. 16. Furthermore, MADC chose not to exercise its rights and terminate the Concession Agreement dated 07.11.2007 at the time of commencement of CIRP and even thereafter, the Concession Agreement was subsisting. 17. The Applicant submits that MADC has advisedly not terminated the Concession Agreement since termination would have, in terms of clause 5.5 of the Concession Agreement, resulted in MADC paying to the Corporate Debtor 90% of the debts, which amounted to more than Rs. 1,800 crores. The relevant clause 5.5 of the Concession Agreement is as follows:

“5.5 Compensation Upon Termination … (ii) In the event MADC terminates this Agreement pursuant to Article 5.2 as a result of any other Project Company Event of Default, MADC or its designee shall have the right, but shall not be required, to acquire all of the Project Company’s right, title and interests in and to the Facility:

Provided that MADC or its designee, upon such acquisition, shall pay the Project Company the compensation amount equal to 90% of the Total Debt Due. If MADC does not elect to purchase the Facility upon the effective date of the termination as provided in this sub-clause (ii), MADC shall have no further rights or interest in the Facility or obligations to the Project Company under this sub-clause (ii). … (e) Termination Following Non Political Force Majeure Event. If following a Non Political Force Majeure Event affecting the Facility, MADC

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 pursuant to Article 17 elects to terminate this Agreement, MADC shall pay the Project Company the compensation amount equal to 90% of the Total Debt Due less insurance proceeds if any. Upon payment of such compensation amount, the Project Company shall transfer the Facility to MADC.”

18. The Applicant submits that since MADC has chosen not to exercise any of its purported rights, MADC cannot now claim that the Liquidator could not have sold the Corporate Debtor’s rights, assets and property under the liquidation process under the provisions of the IBC. It is a matter of fact that the Corporate Debtor’s transmission lines are continued to be utilized by MADC. 19. We have heard the rival submissions of both sides and perused the record. It is observed that the Applicant does not seek to acquire better rights than those vested with the Corporate Debtor. Moreover, the Applicant is aware that the project company will be remitted back to MADC after completion of the term and does not seek to evade the stipulations contained in the agreements. Further, as far as the contention of the Respondent No.2 qua dilution of shareholding of 26% in Corporate Debtor is concerned it is the admitted position that the shares were allotted by the Corporate Debtor to the Respondent No. 2 in lieu of payment for “Lease Premium”, as per the Indenture of Lease dated 26.11.2008 and Lease Deed dated 16.06.2010. The relevant clause is reproduced hereinbelow for reference: “AND WHEREAS at the request of the LESSEE, the LESSOR has now agreed to execute this Land Lease Deed in favour of the LESSEE and whereas by mutual agreement the LESSOR has consented to receive from the LESSEE a premium of Rs. 4,07,25,100/- (Rupees Four Crore Seven Lacs Twenty Five Thousand One Hundred Only) in form of equity shares to be allotted by the LESSEE company at their face value towards the said Land as per SHA to be executed within a period of 3 months from the date of execution of this Land Lease Deed and the LESSEE shall

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 develop the said Land strictly in accordance with Concession Agreement to establish, operate and maintain 25 MW DG Set and transmission and distribution system subject to Special Conditions for use, enjoyment and Leasehold Ownership of the said Land agreed between the LESSOR and the LESSEE as set out in Annexure 'B' hereto (hereinafter referred to as 'the said Special Conditions') as hereinafter appearing; NOW THIS INDENTURE WITNESSETH THAT in pursuance of the said Concession Agreement dated 7th November, 2007 and in consideration of the premium Rs. 4,07,25,100/- (Rupees Four Crore Seven Lacs Twenty Five Thousand One Hundred Only) to be paid by the LESSEE to the LESSOR in the form of equity shares as aforesaid after the execution of these presents as per the SHA the LESSOR do hereby admit and acknowledge and acquit, release and discharge the LESSEE from the payment and receipt thereof and every part thereof of the total consideration of Rs. 4,07,25,100/- (Rupees Four Crore Seven Lacs Twenty Five Thousand One Hundred Only) the LESSOR do hereby demise unto and to the use of the LESSEE and the LESSEE do hereby accept, confirm and take on lease all that piece or parcel of the said Land on ground situated lying and being in the processing area of the SEZ at Project MIHAN, all that piece or parcel Land on ground situated, lying in Village 'Dahegaon' in the 'Hingna PS' jurisdiction and the Post office is 'Khapri' within the taluka, District of Nagpur (Rural) admeasuring 6.2654 Hectarés equivalent to 62654 Sq. Mtrs. and more particularly described in the First Schedule hereunder written and as shown on the Plan in Annexure 'A' hereto and delineated thereon in red colour boundary line (hereinafter referred to as the Demised Land');…”

20. From a plain reading of the aforesaid clause it is discernible that the arrangement between the parties was such that consideration payable for lease premium was in the form of equity shares of the Corporate Debtor. The contention of the MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 Respondent No.2 that shareholding of MADC ought not to be extinguished cannot be sustained as the Corporate Debtor is undergoing Liquidation and the proceeds from sale will be distributed in terms of Section 53 of the Code. 21. Further, it is relevant to consider the following clauses of the Concession Agreement dated 07.11.2007 : “5.2. Project Company Events of Default-Termination by MADC MADC may give a notice of default under this Agreement (a “MADC Notice of Default”) upon the occurrence of any of the following events (“Project Company Event of Default”), unless such event (i) results from a breach by MADC of this Agreement, or (ii) occurs as a result of or during a force Majeure pursuant to Article 17: … (i) except for the purpose of amalgamation or reconstruction (provided, that such amalgamation or reconstruction does not affect the ability of the amalgamated or reconstructed entity, as the case may be, to perform its obligations under this Agreement), the occurrence of any of the following events: ….(iii) the appointment of a liquidator in a proceeding for the winding up of project company after notice to project company and the hearing, which appointment has not been set aside or stayed within ninety (90) of such appointment.. 5.4 Rights and Remedies upon an event of default (a) Notice of Intent to Terminate i. Upon the occurrence of a MADC Event of Default or a Project Company Event of Default, as the case may be, that is not cured within the applicable period (if any) for cure, the non-defaulting party may, at its option, initiate termination of this Agreement by delivering a notice (a “notice of intent to terminate”) of its intent to terminate this Agreement to the defaulting party. ii. This Notice of intent to terminate shall specify in reasonable detail project

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 company event of default or the MADC event of default, as the case may be, giving rise to such Notice. 5.5 Compensation upon termination (a) Project Company event of Default i. In the event MADC terminates this Agreement pursuant to Article 5.2 as a result of project company event of default for failure to timely reach Financial Closure, MADC shall be entitled to encash in full the proposal security. ii. In the event MADC terminates this Agreement pursuant to Article 5.2 as a result of any other Project Company Event of Default, MADC or its designee shall have the right, but shall not be required, to acquire all of the Project Company’s rights, title and interests in and to the Facility. Provided that MADC or its designee, upon such acquisition, shall pay the project company the compensation amount equal to 90% of the Total Debt Due. If MADC does not elect to purchase the facility upon the effective date of termination as provided in this sub-clause (ii), MADC shall have no further rights or interest in the facility or obligations to the project company under this sub-clause (ii).

22. The aforesaid clauses make it clear that MADC i.e. Respondent No.2 had option to terminate the agreement pursuant to project company event of default which includes appointment of Liquidator but the Respondent No.2 has chosen not to terminate the agreement and has not paid the compensation amount equivalent to 90% of the Total Debt Due. Accordingly, now MADC cannot as an after thought contend that it is entitled to benefits as they existed prior to commencement of Liquidation proceedings against the Corporate Debtor as it has not elected to terminate the agreement. Further, it is clear from the indenture of lease that the MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 equity of the Corporate Debtor was given to the Respondent No.2 in discharge and towards payment of consideration payable as Lease Premium for granting lease of the land. Moreover, since the applicant has submitted that it does not seek to acquire better rights than the Corporate Debtor and has admitted that the project will be remitted back to MADC at the end of term, the objections raised by MADC to sale in favour of the Applicant cannot be considered.

However, we make it clear that the rights of MADC under the BOT agreements shall remain protected and the successful bidder shall be bound to transfer the facility in the manner as was obligated for the Corporate Debtor. 23. Coming back to the reliefs and concessions sought by the Applicant, the same will be dealt in accordance with the clean slate principle. At this juncture, we deem it appropriate to refer to the Judgment of the Hon’ble NCLAT in the matter of M/s Shiv Shakti Inter Globe Exports Pvt. Ltd. vs M/s KTC Foods Private Limited Company Appeal (AT) (Insolvency) No. 650 of 2020. The relevant paragraphs are reproduced herein: “21. Adverting to the contention of the Learned Counsel for the Appellant that the Adjudicating Authority has erred in denying the sale of the ‘Corporate Debtor’ as a ‘going concern’ to the Appellant without including any contingent liabilities, we hold that it is a settled law that when the sale proceeds of a ‘Corporate Debtor’ are duly distributed in the Order of priority and in the manner prescribed under Section 53 of the Code, claims of any other Creditor cannot be entertained contrary to the provisions entailed under Section 53; subsequent to the distribution of sale proceeds under Section 53 no other entity including any Government entity can claim any past unpaid or outstanding dues against the Appellant who has purchased the ‘Corporate Debtor Company’ as a ‘going concern’.

It is significant to mention that the second

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 Respondent/Liquidator has specifically submitted that even these claims by the Uttar Haryana Bijili Vitran Nigam were not submitted in the prescribed form either during the CIRP Process or at the Liquidation stage. We are of the considered view that at this stage subsequent to the sale of the ‘Corporate Debtor Company’ as a ‘going concern’, these claims cannot be foisted upon the Appellant. The scope and objective of the Code is to extinguish all claims specifically the ones which were not even made during the CIRP or in the Liquidation stage, to aid the purchaser of the Company as a ‘going concern’ to start on a ‘clean slate’. The Hon’ble Supreme Court in ‘Ghanshyam Mishra & Sons Pvt. Ltd.’ Vs. ‘Edelweiss Asset Reconstruction Company Ltd. & Ors.’, Civil Appeal No. 8129 of 2019 and in ‘CoC of Essar Steel India Ltd.’ Vs. ‘Satish Gupta & Ors.’ (2020) 8 SCC 531 has laid down the proposition that the purchaser of the Company even in the Liquidation stage cannot be burdened with past liabilities when it is not mentioned in the ‘Sale Notice’.

22. It is no longer Res Integra that while approving a ‘Corporate Debtor’ sale as a ‘going concern’ in Liquidation Proceedings without its dissolution in terms of Regulation 32(e) of the Liquidation Process Regulations, 2016, it is essential to see that the ‘Corporate Debtor’ is not burdened by any past or remaining unpaid outstanding liabilities prior to the sale of the Company as a ‘going concern’ and after payment of the sale proceeds distributed in accordance with Section 53 of the Code.” 24. Further, the Hon’ble NCLAT in the matter of Jasamrit Designers Private Limited, vs Mr. Gian Chand Narang Company Appeal (AT) (Insolvency) No. 258 of 2023 has held as follows: “12. We while granting such liberty to the Appellant observe that law is well settled, a successful bidder who is declared as successful bidder of sale as going concern can seek access of the Adjudicating Authority and may pray for necessary directions in accord with MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 and in consonance with the process document in the liquidation proceedings. In result, we partly allow this Appeal and hold that applicant’s prayers i.e. relief/concessions/directions needs consideration by the Adjudicating Authority for which we grant liberty to the Applicant to make a fresh Application containing prayers which may be commensurate and in accord with terms and conditions of the process document of e-auction process document.

The Appellant may submit a fresh application praying for reliefs, concessions and directions which may be considered and decided by the Adjudicating Authority in accordance with law. The Appeal is disposed of, accordingly” 25. The reliefs, concessions and our orders thereon are summarized herein below: S. No Concessions / Reliefs / Directions sought Orders 3.1 Existing shares of Corporate Debtor be extinguished Granted including consideration payable to such shareholders.

Upon NCLT extinguishing the shares, no further approval/ consent be necessary for cancellation of the existing share capital of the Company in terms of Section 66 of the Companies Act, 2013 and no requirement to add the words “and reduced” in the name of the Corporate Debtor. 3.2 Direction that the Corporate Debtor allots 9,65,000 Granted in terms equity shares and 9,94,60,000 warrants at face value of the clean slate of Rs. 10/- to the Applicant/ its nominees which principle. shall constitute 100% of the paid up share capital of the Corporate Debtor. 3.3 Direction that from the date of grant of reliefs, the Granted. Board of Directors of the Corporate Debtor shall comprise of (i) Ms. Divya Dubey; (ii) Mr. Sanjay Gupta.

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 3.4 Direction to RoC to record satisfaction of all Granted, however charges created and which remained unsatisfied the rights of the prior to the Date of Acquisition and the Liquidator Respondent No.2 to submit necessary returns in this regard. in terms of the agreement shall be protected. 3.5 A direction that on and from the present order by The said relief is this Hon’ble Court, the status of the Corporate not pressed by the Debtor in the records of the relevant Registrar of Applicant. Companies should be reflected as 'Active' from the status 'under liquidation'.

S3i.x6 The status of Corporate Debtor be treated as The said relief is registered by the ROC in its records with the not pressed by the re-christened name Padmakshi Energy Private Applicant. Limited 3.7 The takeover Balance sheet of the Corporate Debtor The financial (Ex J/ 108 of Application) be accepted by the statement shall be statutory authorities. drawn up and audited in accordance with the provisions of Companies Act, 2013. The statutory authorities shall be at liberty to examine the take over balance sheet in the light of respective law. 3.8 On the acquisition date and onwards the Granted in terms Corporate Debtor has no pre-existing liabilities of the clean slate

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 and the assets reflected in the balance sheet and principle. taken over under the Sale Agreement is under the ownership of the Corporate Debtor and has no charge of any other Creditor. 3.9 From the acquisition date, no Financial or Granted in terms Operational Creditors shall be entitled to institute of the clean slate or continue legal proceedings against the principle. Corporate Debtor.

3.10 The creditors (secured or unsecured) of the Granted in terms Company shall be deemed to have issued no of the clean slate objection on the Acquisition Date. principle.

Security created in favour of the secured creditors shall stand extinguished and security documents to be returned to the Corporate Debtor. 3.11 All past claims including those under guarantees to Granted in terms to stand extinguished. of the clean slate 3.13, 3.15, principle. 3.16 3.14 All inquiries, investigations, assessments, notices, Granted in terms causes of action, suits, claims, disputes, litigations, of the clean slate arbitration, or other judicial, regulatory or principle. administrative proceedings in relation to any period prior to the acquisition date be deemed to be withdrawn or dismissed from the date when this Hon’ble Tribunal passes an order in the present Interlocutory Application.

3.17i All subsisting consents, licences, permits, approvals, The successful bidder shall apply rights entitlements, warranties, benefits and to the relevant privileges whether under law, contract, lease or authorities and bear the license, granted in favour of the Corporate Debtor or charges/fees to be deemed to continue without disruption and free prescribed

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 from security interest, encumbrance, claim, thereunder. However, the counterclaim or any demur, for the benefit of the authorities shall Company not take any adverse view on ground of insolvency of the Corporate Debtor. 3.18 Relevant State or Central agency including the The successful MIHAN SEZ developer to provide immediately the bidder shall apply entire requirement of raw water during the pre-to the relevant operations and for commencement of operations at authority and bear the power plant the charges/fees prescribed thereunder. However, the authorities shall not take any adverse view on ground of insolvency of the Corporate Debtor. 3.19 Maharashtra State Electricity Distribution The said relief is Company Limited to provide immediately the not pressed by the entire requirement of start-up power at 220 kv level Applicant during the pre-operations and for commencement of operations at the power plant. 3.20. Maharashtra Electricity Regulatory Commission The said relief is to fix the transmission charges in respect of the not pressed by the dedicated 220 kv transmission system of the Applicant Corporate Debtor 3.21 MSEDCL to permit the operating plant to inject The said relief is infirm power into the state grid during the period not pressed by the prior to fresh COD and at rates approved by the Applicant relevant state electricity regulatory commission

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 3.22 Government authority (Development The Applicant is Commissioner of MIHAN SEZ) to issue a fresh not pressing that Letter of Approval (LOA) / renew the earlier LOA an LOA be issued in the name of the Applicant. 3.23 Relevant Central agency including Western The successful Coalfields Limited (“WCL”) to reinstate the bidder shall apply Letter of Assurance issued by it to the Corporate to the relevant Debtor dated 09.04.2012 and to provide at least 12 authority and bear months from the date of disposal of this petition the charges/fees by this Hon'ble Adjudicating Authority to enable prescribed the Applicant to sign the "Fuel Supply Agreement thereunder. (“FSA”)" with WCL for facilitating the supply of However, the coal and to fulfil any milestones in connection authorities shall thereto. not take any adverse view on ground of insolvency of the Corporate Debtor. 3.24 Relevant Government bodies or agencies to ensure The Authorities continuance without disruptions in the name of shall consider the the Corporate Debtor of critical request for permits/licences/clearances for the earliest renewal/issuance resumption of plant operations. of fresh licenses/ permissions / approvals in accordance with the relevant law and procedure laid down thereunder shall be followed.

However, the renewal or MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 issuance licenses/ permissions / approvals shall not be denied on the ground of non-payment of dues settled under the Code. 3.25. Direction that no government authority/ statutory Not pressed. body cancels any arrangement with the Corporate Debtor on account of a change of management or name and all subsisting/ fresh approvals, permits. consents, licences, etc., required for the commencement of operations at the plant should be continued/ issued in the name of the Corporate Debtor without any delay. 3.26 Bid submitted by the Applicant should be considered The specific reliefs to be a resolution plan under Section 79 of the sought under the Income Tax Act, 1961 and sale of Corporate Debtor Income Tax Act as a going concern should be treated in the same shall be put forth manner as to the implementation of the resolution before the relevant plan under Corporate insolvency resolution process tax authorities that may consider the same, if permissible under the Act, subject to adherence to the conditions/proce dure under the Income Tax Act.

3.27 Brought forward tax losses of the Corporate Debtor The specific reliefs to be permitted to be carried forward and set off sought under the against future income as a change of shareholding of Income Tax Act

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 the Corporate Debtor is pursuant to the bid shall be put forth submitted by the Applicant under the E-Auction before the relevant Process tax authorities that may consider the same, if permissible under the Act, subject to adherence to the conditions/proce dure under the Income Tax Act. 3.28 Any requirements to obtain waivers from any tax The said relief is authorities including in terms of section 115B of the not pressed by the Income Tax Act, 1961 be deemed to have been Applicant. granted. 3.29 All tax litigations, prosecutions, tax legal Granted in terms proceedings, suits, demands, notices, show-cause of clean slate notices, demand actions, or arbitration from principle. administrative, judicial, Quasi-judicial, regulatory, government or any enforcement agencies, pending or threatened against the Corporate Debtor be deemed to have been withdrawn or dismissed. 3.30 Corporate Debtor and the Applicant shall not be Granted in terms liable for any taxes, transfer premiums or charges, of clean slate change of ownership/ control charges for the period principle. prior to the acquisition date. However, any transfer charges payable in terms of land lease agreement shall be payable by the Applicant to the relevant authority.

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 3.31 Relevant Governmental Authorities shall not initiate Granted in terms any proceeding in relation to any non-compliance of clean slate with Applicable Law by the said Company for the principle. period prior to the acquisition date. 3.32 Direction that any non-compliance of provisions of Granted in terms any laws prior to acquisition date be deemed to be of clean slate extinguished principle. 3.33 Immunity to the Corporate Debtors and/or their The Applicant directors, employees, shareholders and officers from and/or their enquiries from any investigation or any other directors, proceeding, whether civil or criminal including in employees, relation to tax offences and proceedings of any shareholders and nature of any period prior to acquisition date officers shall be immune from proceedings arising prior to the acquisition date. 3.34 Assets (including properties, whether freehold, lease Granted. rent, leasehold or license basis) of the Corporate However, the Debtor shall be vested in totality in the Corporate assets shall be Debtor free and clear of all charges, lien and vested in the encumbrances from the Acquisition Date. manner as provided in E- Auction Process Memorandum.

3.35 Any pending property tax, rent, fee or premium be Granted in terms deemed to have been extinguished from the of the clean slate Acquisition Date. principle. 3.36 Relevant State or Central agency including the The relevant MIHAN SEZ developer/ administrator to facilitate agency may the continuance of holding of all plant assets consider the including land, whether leased or pending lease, in request to name of Corporate Debtor facilitate the MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 Applicant. 3.37 No further deed to be necessary to be complied with The Applicant by the Corporate Debtor under the applicable taxes shall comply with laws and it shall be deemed that all such statutory all necessary compliances have stood complied with on the compliances Acquisition Date. under all relevant laws. 3.38 Government authority/ statutory body to permit the Subject to the Applicant to dispose of any assets or asset class that conditions is no longer required under the plant operations stipulated under revival plan concession agreement, the Applicant shall not be denied permission to dispose of any assets or asset class that is no longer required under the plant operations revival plan.

3.39 Statutory Authorities to release deposits, incentives, The said relief is benefits, subsidies, etc., if any, due to the Company not pressed by the expeditiously to ensure an early revival of the Applicant business of the Company 3.40 Direction that all the intangible assets belonging to The said relief is the Corporate Debtor shall remain vested with the not pressed by the Corporate Debtor. The erstwhile promoters or their Applicant associate shall be restrained from using and/ or transferring any of the IPR owned by the Corporate Debtor 3.41 Nothing under this Acquisition shall affect the rights Granted

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 of the Corporate Debtor or the Applicant to recover any amounts due to the Corporate Debtor from any third party. In case of recovery of any such amount or amounts, which have been written off, the Corporate Debtor or the Applicant shall be the sole beneficiary of such amount. 3.42 Provide the Bidder/Applicant 100% exemption on The Applicant will stamp duty and registration fee and local taxes and be required to levies applicable in respect of any transaction comply with the required to be undertaken pursuant to this payment of stamp acquisition duty and local taxes and shall be eligible for any relief or exemption, if such relief or exemption is available under the extant law. 3.43 All notifications with regards to defaults filed with Granted in terms Credit Information Bureau (India) Limited any of clean slate information utility, RBI or any other regulatory principle authority for and on account of Corporate Debtor shall be withdrawn. 3.44 All subsisting consents, licenses, permits, approvals, The Authorities rights, entitlements, to continue without disruption shall consider the and all additional licenses, registrations, permits, request for allocations and consents required by the Corporate renewal/issuance Debtor be made available by respective relevant of fresh licenses/ agencies immediately from the Date of the permissions / Acquisition approvals in accordance with the relevant law and procedure laid

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 down thereunder shall be followed. However, the renewal or issuance licenses/ permissions / approvals shall not be denied on the ground of non-payment of dues settled under the Code. 3.45 Delays in filing of the statutory returns by the The statutory Company prior to the Acquisition Date are returns shall be condoned without any liability of whatsoever drawn up in nature. Any filing done to regularise the records shall accordance with be deemed to have been filed in the normal course the provisions of within the stipulated time. Companies Act, 2013 and taken on record subject to payment of applicable fees, without recourse to any further penal provision. 3.46 ROC to release all charges on the assets of the Granted in terms Corporate Debtor and record that there are no of the clean slate liabilities in the company principle. 3.47 Liquidator to cooperate and provide all necessary Granted. support and assistance to the Applicant including handing over all papers, documents, relevant letters/notices, fixed asset register of the Company, etc. for the period prior to the Acquisition Date and MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 that he shall provide all support and assistance in this regard 3.48 Liquidator to, immediately, write back all the The Liquidator liabilities of the Corporate Debtor, including shall do the needful creditors, trade payables, term loans, working as is customarily he capital loans, tax liabilities, other statutory liabilities, is required to do in etc. The assets which are not recoverable (debtors, relation to sale as inventories and loans and advances, etc.) should be going concern.

No written down to their realizable value in the financial specific relaxation statements (Profit and Loss Account and the is being granted. Balance Sheet) of the Corporate Debtor. Financial statements should be prepared and filed by the Liquidator with the relevant regulators such as Registrar of Companies, Income Tax Authorities, etc. 3.49 All the compliances for the period up to the Granted, subject to Acquisition date including filing of necessary payment of fees for documents and returns be completed by Liquidator such filing borne by the Applicant. However, the authorities shall not levy any penalty for such late filing. 3.50 Local police station, District Magistrate, local Needless to say, authorities and other civil bodies, having jurisdiction the local at the plant location to extend cooperation and authorities and support in facilitating a smooth resumption of administration operations at the power plant, in the national interest shall extend cooperation and support as is required for smooth handover

MUMBAI BENCH-I IA No.3985 of 2023 In C.P (IB) No.1315 of 2017 and take over of control. 3.51 Corporate Debtors/the Applicant shall be at liberty If other wise to approach this Hon'ble Tribunal to address any permissible under difficulty faced with respect to the acquisition of the the Code, the Corporate Debtor as a going concern. Corporate Debtor can do so.

26. In terms of the above direction, IA No.3985 of 2023 is disposed of as partly allowed.

Sd/- Sd/- PRABHAT KUMAR JUSTICE V.G. BISHT MEMBER (TECHNICAL) MEMBER (JUDICIAL) 13.03.2024 Priyal