State Bank Of India v. Rohit Ferro Tech Limited

three Resolution Plans. Further, the RP also received three different EoIs at a belated stage and with the objective of maximizing the asset value of the Corporate Debtor; the CoC condoned the delay and accepted the EoIs. Accordingly, as on 14 April, 2021, the RP had received a total of five resolution plan. The members of the CoC have unanimously with 100% voting share, approved the Resolution Plan submitted by Tata Steel Mining Limited, Successful Resolution Applicant ('SRA').

5. Various other Applications has been filed before this Adjudicating Authority, the Applications before us are summarized here in after;

I.A. (IB) 702/KB/2021

6. This is an Interlocutory Application filed under section 60(5)of the Code by the SRA against the RP praying for as follows:

(i) An order directing upon the SRA to identify an Effective Date for implementation of the Resolution Plan, if the RP is unable to provide a final assessment of the CIRP Cost prior to such date, then the SRA shall be entitled to open an escrow account with the State Bank of India, where, inter alia, the estimated amounts of CIRP Cost which may arise in future and cannot be ascertained as on the Effective Date can be deposited and released, and such escrow account shall be operated jointly by the Monitoring Agent or its nominee and one representative as authorized by the Monitoring Committee;

(ii) An order directing that the Monitoring Committee and the Monitoring Agent contemplated in the Resolution Plan shall continue to function even after the Effective Date solely for monitoring the distribution of the CIRP Cost certified by the RP and other payments which are required to be made to the creditors as per the Resolution Plan, out of the escrow accounts(s);

(iii) An order that upon payment of the CIRP Cost to the extent certified by the RP prior to the Effective Date; and deposit of the estimated amounts of CIRP Cost which may arise in future and cannot be ascertained as on the Effective Date as above in an escrow account, the SRA can make

Page 8 of 76

payments to creditors of the Corporate Debtor as per the Resolution Plan and can complete closing under the Resolution Plan on the identified Effective Date;

(iv) Pass an order that in case the remittance details of the operational creditors are not available as on the Effective Date, the SRA is allowed to remit such amounts payable to the operational creditors in an escrow account, to be operated under the instruction of the Monitoring Committee, before making payments to other creditors of the Corporate Debtor as per the Resolution Plan and proceed with the implementation of the Resolution Plan upon deposit of such amounts in the escrow accounts;

7. The learned Senior Counsel appearing for the Successful Resolution Applicant submitted that:

a. The instant application has been filed for the purposes of bringing on record certain facts and to seek certain reliefs to aid expeditious implementation of the Resolution Plan;

b. Scheme of Amalgamation:

i. the amalgamation of the Corporate Debtor with the Successful Resolution Applicant as contemplated in Part D of the scheme of restructuring (hereinafter, "Scheme") as detailed in Schedule IX of the Resolution Plan (hereinafter, "Amalgamation"), shall be implemented and it shall be made effective within 2 (two) years from the Resolution Plan becoming effective, and such date shall be the effective date of the Amalgamation.

ii. The Applicant also undertakes that the entire shareholding held by the other shareholders in the Corporate Debtor immediately prior to the Scheme becoming effective as above, shall be acquired by the Applicant in accordance with Section 3.2.2(f)(IV) of the Resolution Plan, such that, as on such effective date, the Corporate Debtor would be a wholly owned subsidiary of the Successful Resolution Applicant. Considering the Scheme would

Page 9 of 76

result in the amalgamation of a wholly owned subsidiary (Corporate Debtor) with its holding entity (Successful Resolution Applicant), no shares shall be required to be issued nor any consideration shall be payable. Accordingly, the Scheme, to the extent it provides for a share exchange ratio or consideration shall be deemed to be not applicable in the instant case. c. Registered Office of the Corporate Debtor:

i. The Resolution Plan provides that the registered office of the Corporate Debtor shall automatically be shifted to such address as may be indicated by the Successful Resolution Applicant prior to the approval of this Resolution Plan by this Adjudicating Authority, without any further act, instrument, or deed on behalf of the Corporate Debtor. The Successful Resolution Applicant has identified 1^st Floor, Tata Centre, 43, Jawaharlal Nehru Road, Kolkata 700071, West Bengal as the new registered office of the Corporate Debtor with effect from the Effective Date of the Resolution Plan.

d. Payment of Corporate Insolvency Resolution Process ("CIRP") Costs:

i. It is the intention of the Successful Resolution Applicant that the insolvency resolution of the Corporate Debtor be undertaken expeditiously. As per Section 3.2.1 of the Resolution Plan, prior to the Effective Date, the Resolution Professional is required to certify the final assessment of the CIRP Costs along with the details of the persons to whom such costs are to be paid. However, as costs accrue daily, the final amount of CIRP costs may only be known and/or arise later in due course. Hence, the Successful Resolution Applicant apprehends that the final CIRP Costs may not be certified within the timeline for the Effective Date of the Resolution Plan as identified by the Successful

Page 10 of 76

Resolution Applicant, and this may delay the expeditious resolution.

ii. As per the Resolution Plan, in the event the actual CIRP Costs as at Effective Date is higher than Rs. 85 Crore (Rupees Eighty-Five Crore), then such Shortfall CIRP Costs (as defined in the Resolution Plan) shall be reduced from FC Payment (as defined in the Resolution Plan). As per the latest assessment made by the Resolution Professional, CIRP costs are estimated as Rs. 100 Crore (Rupees One Hundred Crore).

iii. For the purposes of expeditious implementation of the Resolution Plan, the Applicant proposes and undertakes that the amount of Rs. 100 Crore (Rupees One Hundred Crore) on account of CIRP Costs shall be deposited in an escrow account with the State Bank of India under the management of the Monitoring Committee (as defined in the Resolution Plan), with the Monitoring Agent and Resolution Professional as its joint signatories and will be distributed as per the certification of the CIRP Costs by the Resolution Professional.

iv. The Successful Resolution Applicant seeks a specific direction of this Adjudicating Authority that the above deposit made, be treated to be due compliance with the Section 30(2)(a) of IBC (payment of insolvency resolution process costs to be in priority to other payments) solely for the purpose of enabling payment to the financial creditors, without which, the Effective Date would not be achieved.

e. Payment to Operational Creditors:

i. Section 3.2.3(iii)(c) of the Resolution Plan enables the Successful Resolution Applicant to deposit the amounts payable to such operational creditors, in an escrow account, whose remittance details are not available for payment as on the Effective Date and

Page 11 of 76

proceed with the implementation of the Resolution Plan, upon deposit of such amounts in the escrow account.

ii. To ensure that the payments to be made to the financial creditors are not delayed on account of lack of remittance details of the operational creditors, the Successful Resolution Applicant seeks a specific direction of this Adjudicating Authority to allow the Successful Resolution Applicant to deposit the entire amount payable to the operational creditors in an escrow account, to be operated under the instructions of the Monitoring Committee and treat such deposit of the amount to be due compliance with the Section 30(2)(b) of IBC, read with Regulation 38(1)(a) of CIRP Regulations (payment to the operational creditors shall be paid in priority over financial creditors) solely for the purpose of enabling payment to the financial creditors, without which, the Effective Date would not be achieved.

f. Continuation of Monitoring Committee beyond Effective Date

i. The Monitoring Agent and the Monitoring Committee shall continue to function beyond the Effective date only for the purpose mentioned above. 8. In response to the I.A. (IB) 702/KB/2021 the Ld. Counsel appearing on behalf of the RP submits that:

(i) They do not oppose the prayers of the SRA subject to orders from this

Adjudicating Authority. Further, the estimated CIRP costs as on 10 February, 2022 is Rs.100 Crore.

9. Analysis and Findings for I.A. 702/KB/2021

(i) It is pertinent to mention that the term 'Effective Date' has been defined in the Resolution Plan¹. "Effective Date - shall mean a date identified by the Resolution Applicant which shall be date no later than sixty days from the

Page 12 of 76

receipt of the certified copy of the order approving Resolution Plan passed by this Adjudicating Authority under section 31 of the Code, subject to: (a) fulfillment of the Conditions Precedent; (b) there being no stay on such approval; (c) the Resolution Professional having certified the final CIRP Cost payable by the Resolution Applicant in terms of section 3.2.1(i); and/or

(d) there is no pending proceeding which, in the reasonable opinion of the Resolution Applicant, would have a material impact on the implementation of this Resolution Plan or any part thereof. It is clarified for avoidance of doubt that 'Effective Date' for the purposes of the Restructuring Scheme shall have the meaning ascribed to it in the Restructuring Scheme.

(ii) In application filed by the SRA praying to identify the 'Effective Date', We may say same has been defined in the Resolution Plan submitted by the SRA. Be as it may, the 'Effective Date' shall be the date of approval of the Resolution Plan by this Adjudicating Authority. Further, we are allowing prayers (ii), (iii) & (iv) of this instant application. However, in the case of Monitoring Committee continuing to function even after the effective date, the fees/expenses of the Monitoring Committee shall be borne by the SRA.

(iii) With regard to the registered office of the Corporate Debtor being automatically be shifted to such address as may be indicated by the Successful Resolution Applicant prior to the approval of this Resolution Plan by this Adjudicating Authority shall be subject to filling of adequate forms and approvals from the Appropriate Authority. Hence,

IA(I.B.C)/702(KB)2021 is disposed of.

I.A. (IB) 812/KB/2021

10. This is an Interlocutory Application filed under section 60(5) of the Code by the Deputy Commissioner, CGST and Central Excise, Jaipur Division('CGST') against the RP praying for as follows:

Page 13 of 76

(i) An order directing the RP to accept the claim of the Department of Rs. 16,53,87,524/- and to stay the Resolution Plan submitted by the SRA till the disposal of the instant application

11. Submissions of the Ld. Counsel for the Applicant

(i) The applicant filed proof of claim in Form-B before the Resolution professional in Form-B with requisite documents claiming outstanding demand of Rs.60,16,24,695.59/- against the corporate debtor. The Resolution Professional out of the total amount of Rs.60,16,24,696/- has admitted the claim of Rs.43,62,37,172/- but refused to admit the claim of Rs.16,53,87,524 / - on the plea that claim of Rs.6,92,68,486/- is under appeal and the rest amount is Rs.9,61,19,038/- in respect of which application have been made under SABKA VISHWAS (LEGACY

DISPUTE RESOLUTION) SCHEME, 2019.

(ii) Challenging the said action of the Resolution Professional the applicant filed the application being I.A No- 812 of 2021 before this Adjudicating Authority mainly to direct the Resolution Professional to accept the claim of the Department of Rs.16,53,87,524/- and be pleased to direct the Resolution Professional to consider the claim of the Department on urgent basis.

(iii) During the pendency of the above application the Resolution professional accepted the applicant's claim amount of Rs.9,61,19,038/- but against the rest of claim amount of Rs.6,92,68,486/- the Resolution Professional accepted notional amount of Rs.1/- only on the ground of appeals pending.

(iv) In this regard it is submitted that the Word 'Claim' has been defined in the code under section 3(6) which provides as follows;

(a) Right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured

(b) right to remedy for breach of contract under any law for the time being in force, if such breach gives rise to a right to payment, whether or not such right is reduced to judgment, fixed, matured, unmatured, disputed, undisputed, secured or unsecured.

Page 14 of 76

(v) In terms of section 3(6) of IBC, 2016 claim means a right of payment whether disputed or undisputed. Moreover, it is settled proposition of law that who has a right to claim payment under Section 3(6) of IBC, can file its claim. In this matter claim amount of Rs.6,92,68,486 / - arises out of adjudication proceeding wherein orders have been passed against the Corporate Debtor and in absence of any favorable order to the assessee, the Department has every right to claim the said amount. Since, the said orders have not been set aside by the Appellate Authority thereby, the applicant is entitled to the same and as such included the said amount in their claim.

(vi) The stand of the Resolution Professional in this regard is not justified nor has any legal basis. In the above facts the Hon'ble Court may be pleased to direct the Resolution Professional to accept the claim of Rs.6,92,68,486/- otherwise, the applicant will suffer irreparable loss and the Government revenue will be jeopardized.

12. In response to the I.A. (IB) 812/KB/2021 the Ld. Counsel appearing on behalf of the RP submits that:

(i) the claim was filed by the CGST on 28 April, 2020 for Rs. 60.16 crores, out of 60.16 crores, 43.63 crores had been admitted and the remaining

16.53 crores (6.92 crores + 9.61 crores) had not been accepted for the reasons mentioned below: -

(ii) For 6.92 crore - sub-judice claims in view of appeals pending before CESTAT and Commissioner of Appeals,having been preferred bythe Corporate Debtor, details of which are provided @ pg. 4 of the reply affidavit.

(iii) For 9.61 crores - the Corporate Debtor has opted for an amnesty scheme (SVLDRS). After going through the further clarification provided by the Applicant it was ascertained that although the Corporate Debtor did apply for the amnesty scheme, the corresponding payment (reduced amt), to avail benefit of the scheme was not made.

Page 15 of 76

(iv) However, the RP has accepted (email sent on 4.2.22, at pg.6 of reply aff.) the remaining amount of 16.53 crores in the following manner:-

A. For 6.92 crores - at notional value of Re. 1/-, as permitted by Hon'ble Supreme Court in Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta.

B. For 9.61 crores - admitted.

13. Analysis and Findings for I.A. 812/KB/2021

(i) The Hon'ble Supreme Court in Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta² opined as follows; " So far as Dakshin Gujarat Vij Co. (Respondent 11 in Civil Appeal Diary No. 24417 of 2019), State Tax Officer (Respondent 12 in Civil Appeal

Diary No. 24417 of 2019), Gujarat Energy Transmission Corporation Ltd.

(Respondent 17 in Civil Appeal Diary No. 24417 of 2019) and Indian Oil

Corporation Ltd. (Respondent 18 in Civil Appeal Diary No. 24417 of

2019) are concerned, the resolution professional admitted the claim of the

abovementioned respondents notionally at INR 1 on the ground that there

were disputes pending before various authorities in respect of the said

amounts. However, NCLT through its judgment dated 8-3-20193 directed

the resolution professional to register the entire claim of the said

respondents. NCLAT in paras 44, 45 and 201 of the impugned judgment

upheld? the order passed by NCLT as aforesaid and admitted the claim of

the abovementioned respondents. We therefore hold that this part of the

impugned judgment deserves to be set aside on the ground that the

resolution professional was correct in only admitting the claim at a

notional value of IN 1 due to the pendency of disputes with regard to these

claims. (Para 155)."

(ii) Upon perusal of the record it is apparent that out of Rs.60,16,24,695.59/- a

sum of Rs. Rs.43,62,37,172/- and Rs.9,61,19,038/- has been accepted by 2 2019 SCC OnLine 1478

Page 16 of 76

the RP. However, claim amount of Rs.6,92,68,486/- has been accepted at notional amount of Rs.1/- . Further, we are of the view that the IRP/RP has verified and collated the claims received by him, accordingly. Hence,

IA(I.B.C)/812(KB)2021 is dismissed.

(iii)

I.A. (IB) 82/KB/2022

14. This is an Interlocutory Application filed under section 60(5) of the Code by GPRower Solutions Private Limited ('GPR') against the RP praying for as follows:

(i) For direction on the RP to accept the claim of GPR in light of the judgment by the Hon'ble Supreme Court in Civil Appeal being no. 6553 of 2021 dated 29 November, 2021.

15. In response to the I.A. (IB) 82/KB/2022the Ld. Counsel appearing on behalf submits that:

(i) ThisApplication has become infructuous on the ground of Application being

I.A. (IB) 115/KB/2022 filed by GPR before this Adjudicating Authority..

16. IA(I.B.C)/82(KB)2022 stands infructuous

I.A. (IB) 115/KB/2022

17. This is an interlocutory application filed under section 60(5) of the Code by GPR against the RP praying for as follows;

(i) An order to set aside the orderof the RP dated 19.01.2022 purportedly deciding the claim of GPR at a notional value of Rs. 1/- as in Annexure B herein view of the Judgment and Order of the Hon'ble Supreme Court dated 29.11.21, as in the Annexure A herein.

(ii) And further be pleased to direct the RP to admit GPRs claim along with the proof of claim and take steps in accordance with the provisions of the Code and the order of the Hon'ble Supreme Court dated 29.11.21 as in Annexure A herein.

(iii) Further ad-interim order maybe passed restraining the Respondent from giving any effect and/or further effect to the impugned decision dated

Page 17 of 76

19.01.2022 as in Annexure B herein pending determination of this Application.

18. Submissions of the Ld. Counsel for the Applicant

(i) The Applicant is an Operational Creditor and has a claim of Rs.1,13,38,651/- that arises because of non payment of the Arbitral Award by the Corporate Debtor. On or about 9th July, 2021, the Applicant moved an application being I.A. No. 344/KB/2021 under section 60(5) of the I.B.C, 2016 before this Adjudicating Authority, since the said claim was not accepted by the Resolution Professional on the alleged ground that the same was not filed within the stipulated period of time, inter alia on the following relief :

a. Delay if any, be condoned to file the instant application b. The Adjudicating Authority may be pleased to direct the Resolution Professional, being the Respondent herein, to consider and to entertain the Applicant's claim for a sum of Rs.1,13,38,651/- against Rohit Ferro Tech Pvt. Ltd., being the Corporate Debtor;

c. And further be pleased to direct the said Insolvency Resolution Professional to admit the applicant's claim along with the Proof of Claim and take steps in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016 and the Regulations framed there under;

(ii) However, the said application was dismissed by this Adjudicating Authority on 09.07.2021. Thereafter the Hon'ble Appellate Forum also dismissed the appeal, being preferred against the said order, on 15.09.2021.

(iii) Finally, the Hon'ble Supreme Court, in Civil Appeal No. 6553 of 2021 by a judgment and order dated 29.11.2021, was pleased to allow the said appeal of the Applicant. The impugned judgment and order of the Learned NCLAT was set aside. The impugned order dated 09.07.2021 was also set aside and the application of the Appellant under section 60(5) of the I.B.C. was allowed. As in Annexure "A" (pages 19 to 25).

Page 18 of 76

(iv) Despite the said judgment and order of the Hon'ble Supreme Court, the Resolution Profession once again purportedly proceeded to determine the said rightful claim of the Applicant and purportedly admitted the said claim of Rs. 1,13,38,651/- at a Notional Value of Rs. 1/- on the alleged ground that the said claim is the subject matter of an application under section 34 of the Arbitration and Conciliation Act, 1996, filed by the Corporate Debtor before the Learned District Judge at Alipore and passed an impugned order dated 19.01.2022 to that effect. As in Annexure "B" (page 29).

(v) The Applicant submits that the purported order is bad in law and is passed out of total non application of mind without considering the settled position of law and also otherwise contrary to the solemn judgment and order of the Hon'ble Supreme Court. Thus, the said order is liable to be set aside by this Adjudicating Authority on the following grounds:

(a) The said Respondent cannot take up the issue regarding the said claim of the Applicant since the same has already been determined by the Hon'ble Supreme Court as per its judgment and order dated 29.11.2021. In view of the admitted position that as per the said order The Hon'ble Supreme Court was pleased to allow the application of the Appellant under section 60(5) of the I.B.C. thereby allowed all the prayers made in the said application being I.A. No. 344/KB/2021 before this Adjudicating Authority.

(b) The Respondent had failed to take into consideration of the settled position of law that there is no scope for automatic stay of the valid arbitral award, which was passed by the Learned Arbitrator, appointed by the Hon'ble High Court at Calcutta, merely by filing an application under section 34 of the Arbitration and Conciliation Act, 1996 in view of the substitution of section 36 of the said Amended Act, with effect from 23.10.2015. Section 36(2), 36(3) and also the proviso of the said Amended Act which did away with the automatic stay provision together with further fact that after the same amendment right to

Page 19 of 76

obtain an automatic stay under section 36 was not a vested one and there would be no automatic stay of award unless a separate application was successfully made for a stay.

(vi) In view of as submitted above, there is a valid Arbitration Award against the Corporate Debtor which has neither been set aside nor been stayed by the said Learned Court till date. Thereby during the pendency of the said application does not have any effect on the validity of the Arbitration Award and such view of the matter the. said award, which has been passed in favour of the Applicant, is fully executable as on date in accordance with law.

19. In response to the I.A. (IB) 115/KB/2022 the Ld. Counsel appearing on behalf of the RP submits that:

(i) Videorder dated 29.11.2021 the Hon'ble Supreme Court had condoned the delay of the GPR in filing of claim with the RP.

(ii) Further, the RP in its mail dated 19.01.2022 to GPR (at pg.29 of the application)stated the following reason to not accept the claim of GPR;

(iii) GPR has submitted its claim in Form B dated 16.12.20 claiming an amount of Rs. 1,13,38,651/- from Rohit Ferro-Tech Limited.

(iv) The aforesaid claim has been made pursuant to an arbitral award dated 30.11.18 wherein the following has been held in your favour: "(a). The claimant shall be awarded a sum of Rs. 55,01,661/- as mentioned morefully and particularly in paragraph 46 hereof;

(b). The claimant shall be entitled to interest on the aforesaid sum at the

rate of two percent higher than the current rate of interest prevalent on

the date of the award on and from August 8, 2014 till the date of

payment.

(c). The claimant shall be entitled to costs assessed at Rs. 5,00,000/-." (v) The aforesaid arbitral award dated 30.11.2018 has been challenged by Rohit Ferro-Tech Limited by filing an application bearing Misc. Case

No. ARB 11 of 2019 [Rohit Ferro-Tech Limited vs. GPR Power

Page 20 of 76

Solutions (P) Limited] under section 34 of the Arbitration and Conciliation Act, 1996 before the Learned District Judge at Alipore. The said application has been filed on 27^th February, 2019 and the same is pending adjudication.

(vi) Accordingly, since the total amount of Rs. 1,13,38,651/- claimed by GPR is under dispute and pending adjudication before the competent Courts having jurisdiction in the matter, the claim of GPR is being admitted at a notional value of Re. 1/-as permitted by Hon'ble Supreme Court in Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta.

(vii) Reliance has also been placed in the Judgment by the Hon'ble Supreme Court in (2018) 17 SCC 662 [K. Kishan Vs. Vijay Nirman Company Private Limited]has held that "filing of S. 34 of Act against an arbitral award shows that a pre-existing dispute which culminates at the first stage of proceedings in an award, continues even after the award at least till the final adjudicatory process U/s 34 & 37 of Act has taken place." [para 18]. The aforesaid judgment has also been relied upon by the Hon'ble NCLT, Bangalore in an order dated 27.4.21 in C.P. (IB) No.276/BB/2019 [M/s. K.K. Ropeways Limited v. M/s. Billion Smiles Hospitality Pvt. Ltd.]. Rohit Ferro-Tech / Corporate Debtor had availed its statutory remedy of appeal. However, GPR has also failed to initiate any proceedings under section 36 of the Arbitration Act.

(viii) The claim in question is disputed since the same is challenged under section 34 of the Arbitration & Conciliation Act, 1996. The RP cannot adjudicate the claim, therefore has rightly admitted the same on a notional value.

Page 21 of 76

20. Analysis and Findings for I.A. 115/KB/2022

(i) We have considered the contentions of the Resolution Professional and perused the record referred above and produced before this Adjudicating Authority.

(ii) After considering the submissions of Ld. Counsel appearing for the applicant in the Resolution Plan, we are of the view;-

(a) The Hon'ble Supreme Court vide order dated 29^th of November, 2021 condoned the delay of the GPR in filing the claims with the Resolution Plan. However, this claim was rejected by the RP and the applicant was informed of this by an e-mail dated 19^th of January, 2022. It is clear that the said claim has been made pursuant to an arbitral award mentioned hereinabove and admittedly the said award is under challenge under Section 34 of Arbitration and Conciliation Act, 1996, before the Learned District Judge at Alipore.

(b) It is also an admitted position that the same is pending adjudication. Keeping in view the fact that the award is pending adjudication, the Resolution Professional relying on the judgment of the Hon'ble Supreme Court in case of Committee of Creditors of Committee of Creditors of Essar Steel India Limited (Supra) has rightly concluded that the RP cannot adjudicate the claim and has rightly admitted the same on a notional value in view of the judgment of the Hon'ble Supreme Court referred hereinabove.

(iii) Therefore, in view of the position as stated hereinabove IA 115 / KB/ 2022 is hereby dismissed.

I.A. (IB) 139/KB/2022 21. This is an interlocutory application filed under section 60(5) of the Code by MSTC Limited ('MSTC') praying for as follows;

Page 22 of 76

(i) A declaration that the status of the applicant be regarded as a secured creditor in priority to the claims of the other creditors of the corporate debtor.

(ii) Admitted claim of Rs. 44.32 crores be treated in priority to other claims against the corporate debtor in accordance with section 53(1) of the Code.

22. In response to the I.A. (IB) 139/KB/2022 the Ld. Counsel appearing on behalf of the RP submits as that;

(i) Thesame issue has already been agitated before this Adjudicating Authority by MSTC in IA 611/20 and they failed. [Paras 3(last line), 9, 12, 13, 14, 17, 18 of the order dated 21.8.20 passed by this Adjudicating Authority at pg. 36 of the Reply Affidavit filed in IA 383 of 2021].

(ii) Security documents not in place - no charge filed with RoC under section 77 of the Companies Act, 2013. Reliance is being placed on the order dated 18.12.2019 in Company Appeal (AT) (Insolvency) No. 830 of 2019[India Bulls Finance Ltd. V/s. Samir Kumar Bhattacharya and Ors.] [paras 5 and 9]

(iii) For the aforesaid proposition reliance is also placed on the judgment of the Hon'ble Supreme Court in 2019 SCC Online SC 1487 [Committee of Creditors of Essar Steel India Limited through Authorized Signatory vs. Satish Kumar Gupta &Ors.] [see paras 128 and 131].

I.A. (IB) 383/KB/2021

23. This is an interlocutory application filed under section 60(5) of the Code read with Rule 11 of the National Company Law Tribunal Rules, 2016 by MSTC Limited('MSTC') praying for as follows;

(i) An order to direct a full-fledged investigation be launched in the instant matter, by a government agency to ascertain the reasons of the alleged discrepancy of stocks of the corporate debtor pledged to the applicant and bring to book the offender

Page 23 of 76

24. In response to the I.A. (IB) 383/KB/2021 the Ld. Counsel appearing on behalf of the RP submits that;

(i) An application being IA 611/20 was already filed by MSTC praying for inspection of goods and deployment of guards and the same was dismissed by this Adjudicating Authority vide order dated 21.08.2020 and also by Hon'ble NCLATvide order dated 26.11.20. (ii) Further, the Applicant i.e., MSTC has been admitted as the Operational Creditor. 25. Analysis and Findings for I.A. 383/KB/2021 and I.A. 139/KB/2022

(i) IA(I.B.C)/383(KB)2021 and IA(I.B.C)/139(KB)2022 is also dismissed on

the ground that matter has been previously Adjudicated by this Adjudicating Authority in IA(I.B.C)/611(KB)2020 vide order dated 21 August, 2020 and the same was upheld by the Hon'ble NCLAT vide order dated 26 November, 2020.

I.A. (IB) 11/KB/2022

26. This is an interlocutory application filed under section 60(5) of the Code by Universal Minerals Manufacturing Private Limited('UMMPL') praying for as follows;

(i) Directions upon the respondent to collate, admit and update the claim submitted by the Applicant;

(ii) Directions upon the Resolution Professional to submit a fresh information memorandum with the committee of creditors for re-consideration;

(iii) Directions upon the Committee of Creditors to reconsider the viability and feasibility of the resolution plan pursuant to the incorporation of the claim of the Applicant;

(iv) Condonation of delay for filing the present application, if any.

27. The Applicant submits that:

(i) The Corporate Debtor availed an unsecured loan of Rs.35 25,00,000 from the Applicant under three separate loan agreements for infusing funds and

Page 24 of 76

sustenance of its business. Copies of the loan agreements are annexed at pages 11 to 16 of the application.

(ii) Pursuant to initiation of the CIRP of the Corporate Debtor, the Applicant filed its claim in Form-C with Interim Resolution Professional (IRP) for realization of its outstanding dues to the tune of Rs.1,46,56,055/-. Copy of Form-C along with the requisite documents is annexed from pages 18 to 40 of the application.

(iii) Thereafter, on various occasions, the respondent adopted several dilatory tactics to deny the applicant of its legitimate claims under one or the other pretext. The same would appear from the letters annexed from pages 41 to 47 of the application marked as annexure C, D, E, F & G. The respondent with an ulterior motive made the applicant submit FORM "B" and also directed to FORM "F" despite FORM "C" of the applicant was admitted.

(iv) Finally, by an email dated 2nd March 2020, the Respondent rejected the claim of the Applicant on the purported ground that the loan granted did not fall within the definition of section 5(8) of IBC 2016 as there was no loan agreement executed and the financial debt was purportedly without an interest and was not for a specific period of time. Copy of the said email dated 2nd March 2020 is annexed at page 48.

(v) Immediately thereafter, by an email dated 24th July 2020 the Applicant submitted the loan agreements along with audited balance sheet of the corporate debtor wherein the financial debt was admitted, with the Respondent to substantiate its claim.

(vi) Pursuant to such rejection, on several occasions, the Applicant enquired about the fate of its claim from the Respondent in view of the fact that loan agreements were submitted with the Respondent. However, the Respondent deliberately neglected to respond to any of the emails of the Applicant and remained silent for over a year. The aforesaid fact will appear from the letters issued by the Applicant which will appear at pages 50 to 53 of the application.

Page 25 of 76

(vii) It is submitted that the Resolution Professional has acted arbitrarily and in excess of his jurisdiction and also in violation of the provisions of the Insolvency and Bankruptcy Code by rejecting the claims of the Applicant on its merits. It is settled law that the role of the Resolution Professional is of a facilitator and not as an adjudicator. The Resolution Professional is not empowered to adjudicate the claim filed before it and only has the responsibility of collating and verifying the claims. Reliance is placed on (2019) 4 SCC 17 paras 88 to 91 and 2019 SCC NCLAT 114. However, in the instant case, the Respondent has adjudicated the merits of the claim and rejected the same.

(viii) In any event, the ground on which the claim was rejected is also untenable and non-est in law in view of the judgment passed by the Hon 'ble Supreme Court in the case of M/s. Orator Marketing Pvt. Ltd. vs. M/s. Samtex Designs Pvt. Ltd., 2021 SCC online SC 513 Paras 21,23, 28 and 31 and also in view of the fact that the loan agreements executed between the Applicant and the Corporate Debtor were in existence and were for a specific period of 13 years.

(ix) In the Orator Judgement, the Hon'ble Supreme Court in unequivocal Terms clarified that any person who supports a corporate debtor sustenance of its business is to be regarded as a financial debt.

(x) Further, interest free loans advanced to finance the business operations of a corporate body are also to be considered as a Financial Debt.

(xi) In that view, it is established without any doubt that the claim of the corporate debtor has been incorrectly rejected. The Applicant further submits that the Adjudicating Authority is empowered under section 60(5) of the Insolvency and Bankruptcy Code to direct the Respondent to admit the claim of the Applicant despite the fact that the resolution plan has been approved by CoC and is pending approval before the Adjudicating Authority. Reliance is placed on 2019 SCC online NCLT 478, para 29 to

Page 26 of 76

32 of the application). The order passed in the said case was upheld by the Hon'ble NCLAT (2019 SCC online NCLAT

(xii) The petitioner submits that it has been vigilant throughout and has followed up the fate of its claim with the respondent on several occasions. There has been no delay or laches on part of the Applicant and it has taken all possible measures to get its claim admitted. The application was filed in December 2021 as the applicant had been continuously enquiring about admissibility of its claim by way of emails. However, since the respondent sat tight over the issue over a year, the applicant filed the instant application.

(xiii) In view of the aforesaid, the Petitioner submits that its claim be admitted and collated and updated in the Information Memorandum of the Corporate Debtor in terms of IBC, 2016 and prayers (a) and (b) of the application may be allowed.

28. In response to the I.A. (IB) 11/KB/2022 the Ld. Counsel appearing on behalf of the RP submits as follows;

i) On 21.2.20 UMMPL filed its claim in Form C for Rs. 1.46 crores on account of interest free unsecured loan extended to the Corporate Debtor.However, no loan agreement was submitted.

ii) On 02.03.20, the RP rejected the claim since it does not come within the purview of 'financial debt' in consonance with the order passed by the Appellate Tribunal in Company Appeal (AT) (Ins) No. 6161 of 2018 [Shailesh Sangani vs. Joel Cardoso &Ors.] and the order passed by the Mumbai Bench in CP No. 4376/ IBC/NCLT/MB/MAH/2018 [Agarwal Associates & Agencies vs. Vinay Fabrics Private Limited] holding as follows:- "Since the petitioner is not a promoter, director or shareholder of the Company and no other interest of the Petitioner could be proved in the Respondent Company hence the money given by the Petitioner to the Respondent Company cannot be said to be a transaction having

Page 27 of 76

commercial effect of borrowing and given against the time value of money, hence cannot be said to be financial debt as defined under the I&B Code." iii) On 24.07.2020 copies of three loan agreements provided by the Applicant. The same had not been executed as per applicable law. Furthermore, it also appears therefrom, that the loan is against supplies made by Rohit Ferro- Tech Limited on credit to the Applicant and may be forfeited if the Applicant fails to pay for the supplies.

iv) Resolution Plan approved by the Committee of Creditors and the application for approval of the said plan had been filed on 07.06.2021 before this Adjudicating Authority. It is pertinent to mention here that the Resolution Plan provides for payment only to the Secured Financial Creditors.270^th day of the CIRP expired on 07.06.2021 after considering the extension and exclusions.

v) After 22 monthsi.e, 27.12.2021 - UMMPL has filed this application. It is pertinent to mention no reason has been stated in the application as to why the claimant did not challenge the decision of the Resolution Professional in a time bound manner. The same is therefore barred by delay, laches, negligence.

vi) All orders in relation to the progress of the CIRP of a Corporate Debtor is available at the website, however, the claimant failed to avail its remedies in a time bound manner.It was the duty of the Applicant to pursue its claims diligently. "Vigilantibus Et Non-dormientibus Jura Subveniunt"is a well- settled principle of law which means that it is vigilant and not the lethargic who are assisted by the law.

vii) UMMPLpleaded in the Application, that the Corporate Debtor had obtained an unsecured loan for infusing funds and running its business. The same is incorrect, false, and contrary to the documents placed on record by the Applicant itself. The same is stated to take advantage of the decision passed by the Hon'ble Supreme Court in Civil Appeal No. 2231 of 2021 [Orator

Page 28 of 76

Marketing Pvt. Ltd. v. SamtexDesinz Pvt. Ltd]. The facts in the instant matter, are completely distinct and separate from the issue that had been considered by the Hon'ble Supreme Court.

viii) In reliance of the decision of the Supreme Court in 2022 SCC Online SC 142 [Consolidate Construction Consortium Limited vs. Hitro Energy Solutions Private Limited], at the highest, the applicant can be treated as an Operational Creditor [see paras 56, 61, and 83]. 29. Analysis and Findings for I.A. 11/KB/2022

(i) After hearing the Ld. Counsel for the parties and considering their submissions made hereinabove and the record relied upon, we are of the view;

(ii) It is correct on the part of the applicant so far as the legal possession is concerned, the Resolution Professional is only a facilitator and not an adjudicator. Here in the present case, It is the CoC which has approved the Resolution Plan of the Successful Resolution Applicant. After its deliberations as referred in various minutes of its meetings placed on record before us.

(iii) Therefore, it does not correct on the part of the applicant to say that the Resolution professional in the present case cannot say that the CoC has not considered the various aspects of the Resolution Plan submitted before it by the Resolution Professional. It is the decision of the CoC that approved the Resolution Plan. When this application was filed it was the stage when the Resolution Professional was in the process of collating the information and verifying the claims before it.

(iv) It is also an admitted position that the applicant filed its claim in Form- C of Rs. 1.46 Crores on account of interest free unsecured loan extended to the Corporate Debtor. The RP has taken the stand that no loan agreement was submitted before it to establish this stand taken by the applicant.

Page 29 of 76

(v) We have also noticed the Resolution Professional rejected the claim since it did not come within the purview of financial debt and while doing do the RP has relied upon an order passed by the Appellate Authority in Company Appeal (AT) (Ins) No. 6161 of 2018 [Shailesh Sangani vs. Joel Cardoso &Ors.] and the order passed by the Mumbai Bench in CP No. 4376/ IBC/NCLT/MB/MAH/2018 [Agarwal Associates & Agencies vs. Vinay Fabrics Private Limited] holding as follows:- "Since the petitioner is not a promoter, director or shareholder of the Company and no other interest of the Petitioner could be proved in the

Respondent Company hence the money given by the Petitioner to the

Respondent Company cannot be said to be a transaction having

commercial effect of borrowing and given against the time value of

money, hence cannot be said to be financial debt as defined under the I&B

Code."

(vi) The Resolution Professional while collating the claim of the applicant and

while verifying the admissibility of these claims as referred to, copies of 3 loan agreements provided by the applicant however, it was found that the same were not executed in accordance with law. It is also significant to note that applicant filed the application before this Adjudicating Authority after 22 months that is on 27^th December, 2021.

(vii) Be that as it may, it is the decision of the CoC which has approved the Resolution Plan in terms as indicated in the Resolution Plan. The Resolution Applicant while consolidating the information regarding the claims of the applicant which has now been approved by the CoC, had considered the plea of the applicant that the Corporate Debtor had obtained an unsecured loan for infusing funds and renting its business and the same has been found to be not correct and contrary to the documents placed on record.

(viii) It is the stand taken by the Ld. Counsel appearing for the RP that at the most the applicant can be treated as an Operational Creditor. Reference in terms of the judgment of the Hon'ble Supreme Court of India in 2022 SCC Online

Page 30 of 76

SC 142 [Consolidate Construction Consortium Limited vs. Hitro Energy Solutions Private Limited] as indicated hereinabove. From the above it is clear that the Resolution Plan was approved by the CoC on 27.12.21 and the instant application was filed on 05.06.2021 i.e., after twenty-two months of the rejection of the claim by the RP. It is also matter of record, the progress of the CIRP of the Corporate Debtor is available on the website. Suffice it to say that there has been a considerable delay in filing this particular application.

(ix) We do not find any substance in the contentions of the applicant. In view of the facts stated hereinabove and those records available before us as a part of the Resolution Plan, as a consequence of which we reject this application being

I.A. (IB) 18/KB/2022 30. This is an interlocutory application filed under section 60(5) of the Code by the RP against Chief Inspector of factories, Directorate of Factories, West Bengal praying for as follows;

(i) The respondents to manually accept the application for renewal of License to Work a Factory' in relation to the Bishnupur plant of the Corporate Debtor;

(ii) The respondent be directed to permit the Corporate Debtor to continue its operations as Bishnupur plant during the pendency of the application and/or till the date of renewal of the license.

31. In response to the I.A. (IB) 18/KB/2022 the Ld. Counsel appearing on behalf of the RP submits as that;

(i) the Resolution Professional has subsequently filed the application with the factories department for renewal of license and has also deposited the requisite fees. Therefore, at this juncture, this Adjudicating Authority may kindly direct the factories department to process the renewal application in accordance with law.

Page 31 of 76

32. In IA(I.B.C)/18(KB)2022, since the filling of adequate forms has been done and approvals from the Appropriate Authority for the approval of the License is pending, the application is disposed of. However, the Chief Inspector of factories, Directorate of factories, West Bengal is directed to process the renewal of license in accordance with law.

33. We have dealt with all the I.A's, now we shall dealt with the approval of the Resolution Plan

I.A. (IB) 532/KB/2021

34. The present application has been filed by Mr. Supriyo Kumar Chaudhuri, the Resolution Professional ("RP"), of Rohit Ferro Tech Limited, the corporate debtor under section 30(6) of Insolvency and Bankruptcy Code 2016 ("the Code") read with regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016

("CIRP Regulations") for approval of a Resolution Plan in respect of the corporate debtor.

35. The RP submits that the claims of financial and operational creditors as existing as on the date of filing the present application are as follows:(Amount in Rupees)

Page 32 of 76

employees)

TOTAL ₹ 44,96,26,92,013 ₹ 42,84,34,96,917 36. The RP states that a total of 31 CoC meetings have been held during the CIRP period, which are as follows:

S.No. COC MEETING DATE OF MEETING 1. 1 st CoC Meeting 5 th March, 2020

2. 2^nd CoC Meeting 22^nd May, 2020

3. 3^rd CoC Meeting 17^th June, 2020

4. 4^th CoC Meeting 3^rd July, 2020

5. 5^th CoC Meeting 16^th July, 2020

6. 6^th CoC Meeting 17^th August, 2020

7. 7^th CoC Meeting 16^th September, 2020

8. 8^th CoC Meeting 25^th September, 2020

9. ^th 9 CoC Meeting 6^th October, 2020

10. ^thrd 10 CoC Meeting 3 November, 2020

11. 11^th CoC Meeting 17^th November, 2020

12. ^th 12 CoC Meeting 19^th November, 2020

13. 13^th CoC Meeting 2^nd December, 2020

14. 14^th CoC Meeting 5^th December, 2020

15. 15^th CoC Meeting 7^th December, 2020

16. 16^th CoC Meeting 28^th December, 2020

17. 17^th CoC Meeting 27^th January, 2021

18. 18^th CoC Meeting 2^nd March, 2021

19. 19^th CoC Meeting 8^th March, 2021

20. 20^th CoC Meeting 12^th March, 2021

21. 21^st CoC Meeting 18^th March, 2021

22. 22^nd CoC Meeting 25^th March, 2021

Page 33 of 76

S.No. COC MEETING DATE OF MEETING 23.

rd 23 CoC Meeting 5 th April, 2021

24. 24^th CoC Meeting 7^th April, 2021

25. 25^th CoC Meeting 9^th April, 2021

26. 26^th CoC Meeting 13^th April, 2021

27. 27^th CoC Meeting 14^th April, 2021

28. 28^th CoC Meeting 11^th May, 2021

29. 29^th CoC Meeting 15^th May, 2021

30. 30^th CoC Meeting 17^th May, 2021

31. ^stst 31 CoC Meeting 31 May, 2021 adjourned to and concluded on 1^st June, 2021

32. 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:

Page 34 of 76

Page 35 of 76

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

Page 36 of 76

Page 37 of 76

III. Mandatory contents of Resolution Plan in terms of regulation 38 of

CIRP Regulations:

Page 38 of 76

Page 39 of 76

33. Further, Ld. Counsel appearing for the CoC while put to see the compliance of Regulation 39 of the Insolvency and Bankruptcy Code, 2016 (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 particularly with regard to recording the deliberation of the Resolution Plan, has stated as follows;

(i) Regulation 39(3) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016,inter alia, states that the Committee of Creditors shall record its deliberations on the feasibility and viability of each resolution plan.

(ii) In the 30th CoC meeting held on 17.5.21 [@ pgs. 445 - 459, Vol III of the Application] the Resolution Professional had placed all five resolution plans before the members of the CoC for voting. Each resolution plan had been placed one after the other and had been followed by detailed deliberations. The deliberations of the members of the CoC made regarding each resolution plan including its feasibility and viability has been recorded in the minutes of the CoC meeting. Additionally, a power point presentation had also been given by the process advisor [and has been included in the minutes of the 30^th CoC meeting by specific reference] detailing the financial proposal, scoring as per evaluation matrix, feasibility and viability, and broad contours regarding all five resolution plans [@ pgs. 596 - 674, Vol IV of the Application].

(iii) On perusal of the minutes of the 30^th CoC meeting held on 17.5.21 it will appear that regarding each resolution plan certain issues were raised/highlighted by the Resolution Professional or his team members/ legal advisors / process advisors. However, in addition thereto, further issues were raised, discussed, and deliberated, and it was decided that the Resolution Professional would seek further clarification from the resolution applicants in regard thereto.

(iv) In Re: Resolution Plan submitted by ESL Steel Limited the following issues had been discussed, deliberated, and recorded in the minutes of the meeting[@ pgs. 453 - 454, Vol III of the Application].

Page 40 of 76

a. Implementing entity not identified in the plan. b. Manner in which CIRP cost over 55 crores would be paid off by ESL. c. Performance Bank Guarantee submitted by ESL would be valid only upto date of issuance of Non-convertible Debentures and not upto the date of redemption of the NCDs.

d. NCD proposed to be secured by creating a charge on movable fixed assets.

e. Monitoring committee to be constituted by 2 representatives of Resolution Applicant and Financial Creditor.

f. Plan does not contemplate insurance claim, if received, would be kept in trust for the benefit of the financial creditors. g. Plan does not contemplate if any amount received after disposal of the application for seeking avoidance transaction, would be transferred to the financial creditors.

(v) In Re: Resolution Plan submitted by Tata Steel Mining Limited the following issues had been discussed, deliberated, and recorded in the minutes of the meeting [@ pg. 455 - 456, Vol III of the Application]. a. Plan does not contemplate insurance claim if received, would be kept in trust for the benefit of the financial creditors. b. Monitoring committee proposed to be constituted with only one representative of financial creditor.

c. In the clause contained in the resolution plan relating to transfer of amount received by the Corporate Debtor upon disposal of the application relating to the avoidance transaction, the specific reference to Section 66 of the Code is not there.

d. No certificate from chartered accountant has been furnished with regard to the source of funds, however, support letter from parent company has been provided.

Page 41 of 76

(vi) Re: Resolution Plan submitted by RimjhimIspat Limited the following issues had been discussed, deliberated, and recorded in the minutes of the meeting [@ pg. 456 - 457, Vol III of the Application]. a. The Resolution Applicant has taken aggressive figures for the EBIDTA projects of the corporate debtor for the next five years. The EBIDTA projections has been assumed to be 944 crores for the next five years, however, in the initial plan submitted by the resolution applicant, the EBIDTA figures were assumed to be 347 crores for the next five years.

b. Monitoring committee proposed to be constituted with one representative of financial creditors.

c. Performance bank guarantee submitted by resolution applicant would be valid only upto the date of payment of upfront amount and not upto payment of deferred amount.

d. Plan does not provide for corporate guarantee as security. e. Plan does not contemplate insurance claim if received, would be kept in trust for the benefit of the financial creditors.

f. Plan contemplates release of all personal and corporate guarantees furnished by promoters and extinguishment of their liabilities.

(vii) Re: Resolution Plan submitted by Maithan Alloys Limited the following issues had been discussed, deliberated, and recorded in the minutes of the meeting [@ pg. 458 - 459, Vol III of the Application]. a. Not furnished details regarding source of funds.

b. No certificate from CA furnished.

(viii) For each resolution plan, it has been categorically recorded in the minutes that the CoC deliberated on the viability and feasibility of the resolution plan and decided to put up the plan for e-voting. The e-voting had, accordingly, commenced on 19.5.21 as decided in the said meeting [@ pg. 452, Vol III of the Application].

Page 42 of 76

(ix) After granting several extensions the e-voting was to conclude on 1.6.21. In the meanwhile, in the 31^st CoC meeting held on 31.5.21 [@ pgs. 460 - 472, Vol III of the Application], the members of the CoC, by majority, agreed that the financial proposal in the resolution plans were still below their expectation and therefore unsatisfactory. The CoC deliberated and it was decided that all five resolution applicants be requested to submit their revised resolution plans with improved financial proposal latest by 1.6.21 (12 PM) for consideration of the CoC. Accordingly, the CoC, by majority vote, decided to re-call the voting on all five resolution plans [@ pgs. 465 - 467, Vol III of the Application]. (x) The meeting was, thereafter, adjourned to 1.6.21 at 12.30PM to discuss further issues including considering the revised resolution plans with

improved financial proposals that may be submitted.

(xi) In the adjourned 31st CoC meeting held on 1.6.21 at 12.30 PM, two

amongst the five resolution applicants submitted a revised resolution plan. ESL Steel Limited submitted a revised resolution plan. ESL's representative furnished clarifications to the queries raised by the members of CoC. [@pg 468 Vol III]. Another revised financial proposal had been submitted by Tata Steel Mining Limited. Representative of TSML also furnished clarifications to the queries raised by the members of CoC. [@pg

468 Vol III]

(xii) ^st The 31 CoC Meeting was once again adjourned to 4.00 PM (same day, i.e., 1.6.21) to discuss further items including considering the evaluation matrix and the resolution plans. [@pg 468 Vol III]

(xiii) In the adjourned 31st CoC meeting held on 1.6.21 at 4.00 PM, the Resolution Professional informed that he has determined the final computation in accordance with the evaluation matrix on the resolution plans received by him [@pg 469 Vol III]. The Process Advisor, presented the final computation in accordance with the evaluation matrix and gave a detailed overview on the quantitative and qualitative parameters for all five

Page 43 of 76

resolution plans. Furthermore, he presented a comparative overview of all resolution plans as per the evaluation matrix and listed out the rankings of the resolution plans in accordance with the computation as per evaluation matrix approved by the CoC[@pg 469 Vol III]. The detailed power point presentation made by the process advisor [@ pgs. 835 - 903, Vol VI of the Application] including the qualitative and quantitative parameter on each resolution plan, key highlights, and broad contourshas been included in the minutes of the 31^stCoC meeting by specific reference.

(xiv) During the power point presentation, few members of the CoC, raised certain queries with regard to the scoring computed. The same were addressed by the process advisor to the satisfaction of the members of the CoC. Thereafter, all five resolution plans were placed before the members of the CoC for their consideration and approval. After deliberating and considering the viability and feasibility of the five resolution plans, it was agreed by the members of the CoC to put the approval of the five resolution plans for e-voting.

(xv) The e-voting commenced on 2.6.21 and concluded on 5.6.21. At the conclusion of the e-voting, the resolution plan of Tata Steel Mining Limited had been unanimously approved by the members of the CoC with 100% voting share casted in its favour [@ pg. 474, Vol III].

34. The Applicant submits that the Successful Resolution Applicant has submitted an Affidavit under Section 29A of the Code, which has been annexed with the application and marked with the letter "A-21."

35. The Applicant submits that two registered valuers as required under Regulation 27 were appointed. A summary of the valuation determined is as below-

(in INR)

Name of the Registered Valuer Fair Value Liquidation Value 1. Anil Pai Kakode 638.26 Crores 428.60 Crores

2. RBSA Valuation Advisors LLP 649.09 Crores 412.55 Crores

AVERAGE 643.68 Crores 420.58 Crores

Page 44 of 76

36. The Applicant has filed a Compliance Certificate in the 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 has been annexed marked with the letter "A-22" at pages 1113-1123 of the

Application.

Details of Resolution Plan/Payment Schedule

37. The Applicant submits the relevant information about the amount claimed, amount admitted, and the amount proposed to be paid by the Successful Resolution Applicant under the said Resolution Plan is tabulated as under:

(Amount in Rupees) Particulars Amount Admitted Amount proposed to be paid 1. CIRP Cost ₹85,00,00,000 ₹85,00,00,000 2. Secured Financial Creditors ₹38,85,55,51,058 ₹5,15,00,00,000 3. Unsecured Financial ₹ 62,69,50,000 NIL Creditors who are related parties

4. Unsecured Financial NIL NIL Creditors who not related

parties

5. Operational Creditors who ₹2,12,78,899 ₹2,12,78,899 are workmen and employee 6. Operational Creditors (other ₹2,60,83,88,542 ₹15,00,00,000 than workmen and employee)

7. Others NIL NIL

TOTAL ₹42,96,21,68,499 ₹617,12,78,899 38. Summary of the financial proposal/payment under the Resolution Plan dated 01.06.2021 of Rohit Ferro Tech Limited submitted by Tata Steel Mining Limited, as

provided under the Resolution plan is tabulated hereunder for the sake of clarity.

Page 45 of 76

Page 46 of 76

Applicant which shall be a date no later than 60 (sixty) days from the receipt of the

certified copy of the order approving Resolution Plan passed by the Adjudicating

Authority under section 31 of the Code," subject to certain conditions as laid down

in the plan.

Details on Management/Implementation and Reliefs as per the Resolution Plan -

Salient Features

40. The Resolution Plan also provides for -

a. Appointment of Monitoring Agency in Section 5.2.6 of Chapter 5; b. Management of Company after resolution in Chapter 5; and c. Term and implementation of the Resolution Plan in Chapter 4.

Reliefs and Concessions

41. The Reliefs and Concessions sought by the Resolution Applicant in section 7 of the Resolution Plan for the successful implementation of the Resolution Plan, from the Adjudicating Authority are set out below. The orders thereon are indicated against each.

Page 47 of 76

Page 48 of 76

Page 49 of 76

Page 50 of 76

Page 51 of 76

3 2021 SCC OnLine SC 313 decided on 13.04.2021.

Page 52 of 76

Page 53 of 76

4 2021 SCC OnLine SC 313 decided on 13.04.2021.

Page 54 of 76

Authorities will provide a reasonable Govt, any State Govt or period of time after the Effective Date, for any local authority, guarantors and other

the Resolution Applicant to assess the

stakeholders. On the

status of any non-compliances under the date of approval of Applicable Law (including with respect to resolution plan by the applicable environmental laws, directions Adjudicating Authority, all such claims, which

or orders by the Ministry of Environment

are not a part of

and Forest, permits clearances and forest resolution plan, shall related clearances) and to procure that the stand extinguished and Corporate Debtor regularises such non- no person will be entitled to initiate or

compliances under the Applicable Law

continue any

existing prior to the Effective Date. proceedings in respect to a claim, which is not

part of the resolution

plan. The Hon'ble

Supreme Court also

held that all the dues

including the statutory

dues owed to the

Central Govt, any State

Govt or any local

authority, if not part of

the resolution plan,

shall stand extinguished

and no proceedings in

respect of such dues for

the period prior to the

date on which the

Adjudicating Authority

grants its approval

under section 31 could

be continued.

The Resolution

Applicant shall make

necessary applications

and pay the requisite

fees to the concerned

authorities and such

authority shall also

consider the same

Page 55 of 76

5 2021 SCC OnLine SC 313 decided on 13.04.2021.

Page 56 of 76

Page 57 of 76

Page 58 of 76

6 2021 SCC OnLine SC 313 decided on 13.04.2021.

Page 59 of 76

Page 60 of 76

Page 61 of 76

7 2021 SCC OnLine SC 313 decided on 13.04.2021.

Page 62 of 76

Central Govt, any State

at no point of time be directly or indirectly

Govt or any local

have any obligation, Liability or duty in authority, if not part of

relation thereto. the resolution plan,

shall stand extinguished

and no proceedings in

respect of such dues for

the period prior to the

date on which the

Adjudicating Authority

grants its approval

under section 31 could

be continued.

28. Given that the Resolution Applicant will Granted in terms of the

acquire control of the affairs of the Ghanashyam Mishra and Sons Pvt Ltd v Corporate Debtor on the Effective Date, all Edelweiss Asset Governmental Authorities (since they are Reconstruction Operational Creditors) to waive any Company Ltd, 8 wherein penalties (including any financial penalties, the Hon'ble Supreme

Court has held in para

or any other financial Liabilities) and dues

95(i) that once a

on the basis of Applicable Laws that may resolution plan is duly

arise from any defaults or non-compliances approved by the

by the Corporate Debtor prior to the Adjudicating Authority

under sub-section (1) of

Effective Date, including but not limited to

section 31, the claims as

the provisions of the environmental laws provided in the

and consents, industrial and operational resolution plan shall

laws, all relevant and applicable labour stand frozen and will be

binding on the

laws, all relevant and applicable Direct and

Corporate Debtor and

Indirect tax laws, the relevant stamp acts of its employees,

the different States of India, relevant members, creditors,

environmental laws and any other including the Central

Govt, any State Govt or

government instrumentality.

any local authority,

29. That any corporate guarantee issued by the guarantors and other

Corporate Debtor in favour of or on behalf stakeholders. On the of any of its subsidiaries, associates, group date of approval of 8 2021 SCC OnLine SC 313 decided on 13.04.2021.

Page 63 of 76

9 2021 SCC OnLine SC 396 decided on 21.05.2021.

Page 64 of 76

any local authority,

10 2021 SCC OnLine SC 313 decided on 13.04.2021.

Page 65 of 76

Page 66 of 76

11 2021 SCC OnLine SC 313 decided on 13.04.2021.

Page 67 of 76

Page 68 of 76

12 2021 SCC OnLine SC 313 decided on 13.04.2021.

Page 69 of 76

Page 70 of 76

Page 71 of 76

13 2021 SCC OnLine SC 313 decided on 13.04.2021.

Page 72 of 76

be claimed by the other party. Further, the resolution plan is duly Resolution Applicant shall not be liable approved by the Adjudicating Authority

under such contracts, agreements, and

under sub-section (1) of

understandings. section 31, 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

Govt, any State Govt 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. The Hon'ble

Supreme Court also

held that all the dues

including the statutory

dues owed to the

Central Govt, any State

Govt or any local

authority, if not part of

the resolution plan,

shall stand extinguished

and no proceedings in

respect of such dues for

the period prior to the

date on which the

Page 73 of 76

Adjudicating Authority grants its approval under section 31 could be continued.

Analysis and Findings for Resolution Plan (IA(I.B.C)/532(KB)2021)

32. On hearing the submissions made by the Ld. Counsel for 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.

33. On perusal of the documents on record, we are also 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.

34. 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.

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

36. Subject to the observations made in this Order, the Resolution Plan in question is hereby approved by this Bench. Hence, I.A. (IB) 532/KB/2021 is disposed of.

The Resolution Plan shall form part of this Order.

37. The Resolution Plan is binding on the Corporate Debtor and other stakeholders involved so that revival of the Debtor Company shall come into force with immediate effect.

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

Page 74 of 76

39. The Resolution Professional shall submit the records collected during the commencement of the proceedings to the Insolvency & Bankruptcy Board of India for the record and also unto the Resolution Applicant or New Promoters.

40. Certified copy of this Order be issued on demand to the concerned parties, upon due compliance.

41. Liberty is hereby granted for moving any Application, if, required in connection with implementation of this Resolution Plan.

42. A copy of this Order is to be submitted in the Office of the Registrar of Companies, West Bengal.

43. The Resolution Professional shall stand discharged from his duties with effect from the date of this Order.

44. The Resolution Professional is further directed to handover all records, premises/factories/documents to the Resolution Applicant to finalise the further line of action required for starting of the operation. The Resolution Applicant shall have access to all the records/premises/factories/documents through the Resolution Professional to finalise the further line of action required for starting of the operation.

45. When this matter was reserved for orders on 10.03.2022, two affidavits have been received by post, which were addressed to the Registry of this Bench on 04.04.2022, one by Smt Rina Devi and Sri. Kedar Prasad Sav. There is no mention of any I.A. wherein these affidavits were sought to be filed. In these affidavits, the deponents have sought to raise some invoices and they are seeking a correction of calculation error. It is further stated in these affidavits that an affidavit had been filed in Durgapur Court. It is mentioned in these affidavits that they have some receivables from Rohit Ferro Tech Limited. Both these affidavits appear to have been executed on 31.03.2022. This Adjudicating Authority is of considered opinion that the errors sought to be corrected cannot be allowed when the orders are ready for pronouncement, otherwise also it is too late a stage i.e. after approval of Resolution Plan by CoC, to raise such claim before this Adjudicating Authority. This appears to be a very casual attempt

Page 75 of 76

made by the deponents when the matter had already been reserved for orders. Therefore, we decline to take these affidavits on record and consider the averments contained in these affidavits.

46. In view of the above directions, C.P. (IB) No. 1214/KB/2018 is disposed of.

47. 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.

48. Certified copy of this order may be issued, if applied for, upon compliance of all requisite formalities.

49. File be consigned to the record.

Harish Chander Suri Rohit Kapoor Member (Technical) Member (Judicial)

The order is pronounced on the 7^th day of April, 2022. GGRB (LRA)/SA (LRA) Page 76 of 76

76