Invent Assets Securitization & ... vs Abhishek Corporation Ltd. & Ors

Manibhadra Polycot .... Appellant Vs Abhishek Corporation Ltd. & Ors. .... Respondents

Present: For Appellant: Mr. Virender Ganda, Senior Advocate with Mr. Vipul Ganda, Ms. Shreya Jain and Mr. Aman Choudhary, Advocates.

For Respondents: Mr. Ami Jain, Advocate for RP of Respondent No.1 and Mr. Sameer Kakar, RP.

Mr. Ramji Srinivasan, Senior Advocate with Mr. Rishi Kapoor and Satish Rai, Advocates for Respondent No.2.

Ms. Ekta Choudhary and Ms. Megha Karanwal, Advocates for Respondent Nos.5, 6 & 7.

with Company Appeal (AT) (Insolvency) No. 347 of 2019

IN THE MATTER OF:

Invent Assets Securitisation & Reconstruction Pvt. Ltd. .... Appellant Vs Abhishek Corporation Ltd. & Ors. .... Respondents

Present: For Appellant: Mr. Ramji Srinivasan, Senior Advocate with Mr. Rishi Kapoor and Satish Rai, Advocates.

For Respondents: Mr. Ami Jain, Advocate for RP of Respondent No.1 and Mr. Sameer Kakar, RP.

Ms. Ekta Choudhary and Ms. Megha Karanwal, Advocates for Respondent Nos.5, 6 & 7.

Company Appeal (AT) (Insolvency) No. 241 & 347 of 2019 Page 1 of 5 ORDER

01.05.2019 In absence of approved Resolution Plan, the Resolution

Professional of Abhishek Corporation Limited (Corporate Debtor) filed

application under Section 33 of the Insolvency and Bankruptcy Code, 2015

(hereinafter referred to as 'I&B Code') seeking, inter alia, initiation of

liquidation of the Corporate Debtor. The application having been approved,

the Financial Creditor and the Resolution Applicant have challenged the

order dated 11th March, 2019 passed by the Adjudicating Authority (National

Company Law Tribunal), Mumbai Bench.

2. When the matter was taken up on 11th April, 2019, this Appellate

Tribunal observed: -

"11.04.2019 - Heard Mr. Ramji Srinivasan, learned Senior Counsel appearing on behalf of the 'Invent Assets Securitisation & Reconstruction Private Limited'- ('Financial Creditor'), Mr. Virender Ganda, learned Senior Counsel for 'M/s. Manibhadra Polycot'- ('Resolution Applicant'), Ms. Rathina Maravarman, learned counsel appearing on behalf of the 'State Bank of India', 'Corporation Bank' and 'Bank of Baroda' ('Financial Creditors') and Ms. Sonali Khanna, learned counsel appearing on behalf of the 'Asset Reconstruction Company (India) Ltd.'- ('Financial Creditor').

Before deciding the question as to whether time should be excluded for successful Resolution, it is desirable to find out whether the revised 'Resolution Plan' submitted by 'M/s. Manibhadra Polycot' viable and

Company Appeal (AT) (Insolvency) No. 241 & 347 of 2019 Page 2 of 5 feasible having proper financial matrix and is approved by majority voting shares of more than 66% or not?

As the Appellant(s) have made out a prima facie case that certain period is to be excluded for the purpose of counting of 270 days and if it allowed then the matter has to be remitted back for reconsideration of the 'Resolution Plans', including the 'Resolution Plan' submitted by 'M/s. Manibhadra Polycot', before excluding the period, we are of the view that the 'Committee of Creditors' should first re-consider the revised plan submitted by 'M/s. Manibhadra Polycot' and other 'Resolution Applicants' if any, intend to revise. In the circumstances, we direct the 'Resolution Professional' and the 'Committee of Creditors' to call for urgent meeting of the 'Committee of Creditors' and to give its opinion about the revised 'Resolution Plan' submitted by 'M/s. Manibhadra Polycot' and may ask other 'Resolution Applicants', if any to give their proposal and decide it within fortnight.

Post these appeals 'for orders' on 1st May, 2019.

In the meantime, it will be open to the Respondents to file reply affidavit within 10 days. Rejoinder, if any, be filed by the Appellants within a week thereof.

Until further orders, the liquidation process may continue. The Liquidator will ensure that the Company remains a going concern. However, he will not sell or transfer or alienate or lease or create any third party encumbrance on any movable or immovable property of the 'Corporate Debtor'."

Company Appeal (AT) (Insolvency) No. 241 & 347 of 2019 Page 3 of 5 3. An affidavit accompanying the compliance report of the Resolution

Professional has been filed and it is pleaded that the Revised Resolution Plan

passed by Resolution Applicant was placed before the Committee of Creditors

for its opinion, which noted in favour of Revised Resolution Plan of the

Manibhadra Project with 71.029% voting shares.

4. Learned Counsel appearing on behalf of State Bank of India,

Corporation Bank and Bank of Baroda submitted that they have dissented

because earlier it was decided to proceed for liquidation. However, it is

accepted that the Bank of Baroda was abstained from giving the opinion.

5. On hearing learned Counsel for the parties and perusal of record, we

hold that the Appellants have made out a case of exclusion of 21 days for

counting the period of 270 days i.e. the period during which the Resolution

Process could not proceed, as detailed below:

Reason for exclusion Dates No. of days The Order of the Adjudicating Authority was not received by the Resolution Profession.

CIRP Order Date 17-Nov-17 7 days IRP Took Charge 23-Nov-17

The COC did not allow the Working (I)RP to conduct the CIRP by restricting him to publish on EOI mentioning that the same would be done by the coming RP, the order for which was awaited.

Mail from Largest FC restraining 06-Mar-18 11 days to Publish EOI Date of New RP taking Charge 17-Mar-18

Company Appeal (AT) (Insolvency) No. 241 & 347 of 2019 Page 4 of 5 The voting on the Resolution Plan was stayed by this Hon'ble Tribunal pursuant to the filing of the MA by the Dissenting Financial Creditors.

Stay on E-voting by Hon. NCLT 08-Aug-18 3 days Stay vacated by Hon. NCLT 10-Aug-18 Total 21 days

6. Now having received the opinion of Committee of Creditors and taking

into consideration that the Resolution Plan has been approved with 71.029%

of voting shares and that the 700 workmen of Corporate Debtor can be saved

from retrenchment, we set-aside the impugned order dated 11th March, 2019

passed by the Adjudicating Authority as also the consequential order(s) and

remit the case to Resolution Professional to place the Resolution Plan before

the Adjudicating Authority for order under Section 31 of the I&B Code. While

passing such order, the Adjudicating Authority will also determine the fee

and cost payable by the Resolution Applicant in favour of the Resolution

Professional. The Appeal is allowed with the aforesaid observation and

direction. No cost.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice A.I.S. Cheema] Member (Judicial)

[Kanthi Narahari] Member (Technical) Ash/GC

Company Appeal (AT) (Insolvency) No. 241 & 347 of 2019 Page 5 of 5