Allowed

In the matter of Kanishkdeep Stock Consultants Pvt. Ltd. Ia No. 249-JPR-2021 in Company Petition No. (IB)-252-10-JPR-2019

NCLT11 Mar 2022

Case brief

AI extract

What is this about?

The National Company Law Tribunal, Jaipur Bench approved a resolution plan for Kanishkdeep Stock Consultants Pvt. Ltd. sought by the Resolution Professional under Sections 30 and 31 of the IBC, authorizing the conversion of the corporate debtor into a Limited Liability Partnership and discharging operational creditors' claims.

What did the court decide?

The resolution plan is approved, binding on all stakeholders; the moratorium is lifted; and records are to be forwarded to the Board.

In the matter of Kanishkdeep Stock Consultants Pvt. Ltd… — Insolvency and Bankruptcy | NCLT (2022)

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IN THE NATIONAL COMPANY LAW TRIBUNAL JAIPUR BENCH. JAIPUR

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CORAM: SHRI DEEP CHANDRA JOSHI, HON'BLE JUDICIAL MEMBER

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SHRI RAGHU NAYYAR, HON'BLE TECHNICAL MEMBER

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IA No.249/JPR/2021 In Companv Petition No.^{(IB)-252l10/JPR/2019}

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Under Section L0 of Insolvency and Bankruptcy Coder2016

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IN THE MATTER OF:

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Kanishkdeep Stock Consultants Pvt. Ltd" 6A-10, Mahaveer Nagar Extension, Kota- 324005 (Rajasthan)

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Applicant/Corporate Debtor

MEMO OF PARTIES

IA No. 249/JPR/2021

IN RE:

Sanjay Badrilal Punglia, Resolution Professional of Kanishkdeep Stock Consultants Pvt" Ltd.,

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has its office at 501, 5th Floor, Aalin Complex, Nr.Rambha Complex, Opp. Gujarat Vidhyapith, Ashram Road, Ahmedabad - 380014

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... Applicant

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For the Applicant : Amol Vyas, Adv.

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A No.249/JPM202[ In Company Petition No. (IB)-252/10/JPM2019

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J-

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Order Pronounced On: 11.03.2022

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ORDER

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Per: Shri Deep Chandra Joshi. Judicial Member

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This Application is filed by Mr. Sanjay Badrilal Punglia, Resolution Professional ('RP' / 'Applicant') of Mls Kanishkdeep Stock Consultants Pvt. Ltd. ('Corporate Debtor') under Sections 31 of the Insolvency and Bankruptcy Code, 2016 ('IBC' / 'Code') read with Regulation 39(a) of the Insolvency and Bankruptcy Board oflndia (Insolvency Resolution Process of Corporate Persons) Regulations, 2016 ('Regulations') seeking approval of resolution plan as approved by the Committee ofCreditors.

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The insolvency application was filed by the Corporate Debtor IWs Kanishkdeep Stock Consultants Pvt. Ltd. under Section l0 of the Code for initiation of Corporate Insolvency Resolution Process ('CIRP') against itself, and the same was admitted by this Adjudicating Authority vide order dated 09.02.2021. The Applicant was appointed as the Interim Resolution Professional ('IRP') to manage the affairs of the Corporate Debtor, who later on confirmed to act as RP by the CoC in the matter. The Applicant submits that on 12.02.2021, he issued a public announcement as per Regulation 6 of the Regulations read with Sections 13 and 15 ofthe Code in

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Form A in two newspapers, i.e., Indian Express (English) and Rashtradoot

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A No. 249/JPM2021 In Company Petition No. (IB)-252/10/JPM2019 ffi^_Scf

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Kota (Hindi), thereby inviting claims from the creditors of the Corporate Debtor as envisaged in the Code.

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J. Upon receipt of claims till 24.02.2021, the Applicant constituted the Committee of Creditors ('CoC') on 04.03.2021 and convened the l't CoC meeting on 11.03.2021 wherein there was only one creditor (Operational Creditor), namely J.N. Khandelwal & Co. and therefore holding 100% voting rights. The Applicant further submits that in the 2nd CoC meeting convened on 31.03.2021, the Applicant got Form G approved from the CoC for publication and got the draft for request for Resolution Plan and approved the eligibility criteria. The RP also appointed Registered Valuer to valuate the Securities and Financial Assets of the Corporate Debtor. In the 3'd CoC meeting held on lO.06.2O2l, the CoC approved the decision of RP for extension of invitation of Expression of Interest and re-issue of Form G in the newspaper.

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The Applicant stated that on 29.07.2021, the 4'h meeting of CoC was convened, and after considering the feasibility and viability of the Resolution Plan submitted by the Resolution Applicant, it was approved with 100% voting share.

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It is funher stated that the RP, in compliance with Regulation 39($ of the Insolvency and B ankruptcy B oard ofl ndi a (Insolvency Reso lution Process for

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A No. 249/1PM2021 In Company Petition No. (IB)-252/10/JPM2019

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Corporate Persons) Regulations, 2016, has prepared Form H.

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The Applicant RP has provided brief details ofthe Resolution Plan, which are

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as follows:

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Sr. No	Particular	Total Amount (inRs.)	TotalAmount ofClaimed Received(in Rs.)	Amount Proposedin Resolution Plan(in Rs.)	Amount Admitted (inRs.)
1	IRPCost	2,61,0621-	2,61,0621-	2,61,0621-	2,61,0621-
)	Secured Financial Creditor S	Nil	Nil	Nil	Nil
J.	Unsecured Financial Creditors	1,90,42,5501-	Nil	Nil	Nil
4.	Operational Creditors	1,65,4651-	1,50,000/-	16,000/-	16,000/-
5"	Workmen- Employees
6.	Statutory dues
	Total	1,94,69,0931-	4,11,0621-	2,77,0621	2,77,0621-

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It is stated in the Auditor's Report filed at Annexure F of CP No. (IB) 252ll0llPR/2019 that the company does not have any immovable properties; the inventories of the company comprise of shares and securities kept in the electronic format. Further, the company neither has any loans or borrowings from any financial institution, banks or government nor raises

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A No. 249/JPR/2021 In Company Petition No. (IB)-252/10/JPR/2019

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any money through^{an initial public offer or further public offer (including} debt instruments).

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It is funher stated that as^{per the InformationMemorandum,no claimshave}

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been received conceming^{Financial Creditorsand any liabilityarising after the} effective date; the maximum^{liabilityof the Resolution Applicant shall not} exceed Rs. 1,000/- for^{eachcase.The Resolution Applicantis not awareofthe} liquidation value of the Corporate^{Debtor; therefore, no amount shall be} payable to any Operational Creditors.^{However,as a goodwill gesture,has} proposed Rs. 16,0001- payable to the Operational^{Creditorsfor the admitted} claim of Rs. 1,50,000/-.

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Accordingly, the Applicant RP^{is duty-bound to preferan application under} Section 30(6), and 31 of the Code^{read with Regulation 39(4) of the} Regulations seeking approval ofthe^{revised Resolution Plan duly accepted by} the CoC from this Authority.^{The Applicant has submitted the resolution plan} and a compliance certificate in^{Form H underRegulation 39(a) of the} Regulations. In the matter of Committee^{of Creditorsof Essar Steel India} Private Limited v. Satish Kumar,^{Civil AppealNo. 8766-67 of 2019the} Hon'ble Supreme Court held that in^{consonance with the provisions of} Regulation 28(1A), the Resolution^{Plan should take care ofthe interest of all} the stakeholders, including operational^{creditorsof the Corporate Debtor.}

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IA No. 249/JPM2021 In Company Petition No.^{(IB)-252/10/JPM2019}

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Therefore, the resolution plan has fulfi lled parameters ofthe said j udgement, inter alia, maximisation ofvalue of the assets of the Corporate Debtor and interest of all the stakeholders has been taken into consideration. The copy of the Resolution Plan and the compliance certificate in Form H is annexed as Annexure 4.

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The Applicant RP has stated that the Resolution Plan envisages the Corporate Debtor's revival and sustain it as agoing concern. However, the RP proposes to convert Corporate Debtor into a Limited Liability Partnership. In case of rejection of the revised Resolution Plan, the Corporate Debtor would require liquidation, which would seriously prejudice all stakeholders' interests.

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11" Moreover, the Applicant RP states that as per Section 30 of the Code, amended vide Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 (No.6 of 2018) that came into force on 06.06.2018, the Resolution Plan ought to be approved by 66% of voting share of financial creditors. It is submitted that the CoC has duly authorised the Resolution Plan by a majority of l00Yo of the members.

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We have carefully considered the submissions ofthe learned Counsel for the RP and the leamed Counsel for the resolution applicant and have perused the record.

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IA No. 249/JPR/2021 In Company Petition No. (IB)-252/10/JPM2019

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The Corporate Debtor was^{incorporatedon 09.02.2007,and the CIRP} proceedings were initiated under^{Section 10 of the Code againstthe} Corporate Debtor vide^{order dated 09.02.2021.The presentApplicationis} filed for approval of the resolution^{plan submitted by Mr. Satish Chaudhary} (Successful Resolution Applicant).^{The permission has been soughtunderthe} provisions of Section 31 (1) of the Code"

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t4. We may state that after^{receipt,verification and collation of claimsas} discussed above, the IRP constituted^{the CoC as per the provisions of} Section 2I of the Code. The^{details of the financial creditors,the} distribution of voting share among^{them and the position of voting for} the resolution plan is as under^{(Para-No.Sof Form H)} -

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Sr.	NameofCreditor	Voting	Voting forResolution
No		Share	Plan(Votedfor/
		(%)	Dissented / Abstained)
1.	JNKhandelwal&Co.	t00%	Voted For

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The details of stakeholders under^{the resolution plan are given in Para 7 of}

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Form-H:

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Sr. No.	Categoryof Stakeholder*	Sub-Categoryof Stakeholder	Amount Claimed	Amount Admitted	Amount Provided under the Plan#	Amount provided to the Amount Claimed
1	Secured Financial Creditors	(a) Creditorsnot havingarighttovote under Section2l⁽²⁾ (b) Otherthan^(a)	NA	NA	NA	NA

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	(InternalPg. 7 of the Resolution Plan andthe PageNo.23 of the Application)	above: (i)Whodidnot voteinfavourofthe resolutionplan (ii)Whovotesin favourof the resolution^plan
		Total[(a)^{+ (b)l}	NA	NA	NA	NA
	Unsecured	a) Creditorsnot
2.	Financial Creditors (IntemalPg. 7ofthe Resolution PlanandPg. No.23ofthe Application	havingarighttovote undersub-section⁽²⁾ ofsection21 b) Otherthan^(a) above: (DWhodidnot voteinfavour ofthe resolution plan (ii)Whovotes in favour of the resolution^plan
		;al[(a)⁺ft)l	NA	NA	NA	NA
aJ.	Operational Creditors (InternalPg. 6 and 7ofthe Resolution PlanandPg. 22&23 of the	a) Related Party ofCorporateDebtor b) Other than^(a) above: (i)Government (ii)Workmen (iii)Employees (iv)Others	1.5	1.5	0.16	r0.67% I I
	Application)	Total[(a)⁺G)l	1.5	1.5	0.16	r0.67%
	Otherdebts and dues		NA	NA	NA	NA
Gr	andTotal		1.5	1.5	0.16	10.67%

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[xIf^{there are sub-categories in a category,please add rowsfor each sub-category.} # Amount provided overtime^{under the Resolution Plan and includes the estimatedvalue of} non-cash components. It isnot^NPV.]

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The abovementioned amount of^{Rs. 16,000/- payable to the Operational}

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Creditors is proposed to^{be paid withina period of 30 daysof the effective} date as per the Repayment^{Schedule provided in the ResolutionPlan.}

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Furthermore, the RP to buy the^{all-outstandingdues/liability standing in}

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A No. 249/lPM202l In Compony Petition No.^{(IB)-252/10/JPR/2019}

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the books of accounts due from the Corporate Debtor without any further action the creditors for a total consideration of Rs. 1,000/- as full and final settlement oftheir dues, which shall be paid within 30 days ofthe effective date.

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The compliance aspect of the resolution plan has been given in Para No. 9

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of Form H, which is as follow:

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Sectionof the Code/Regul ationNo.	Re Pla	quirementwithrespecttotheResolution n	Clauseof Resolution Plan	Comp liance (Yes/ No)
Section25 (2Xh)	Wh crit the busi	ethertheResolutionApplicantmeetsthe eriaapprovedbytheCoC havingregard to complexityandscaleofoperationsof nessofthe CD?	Not mentioned	Yes
29A	Wh sub Res Adj	ethertheResolutionApplicantiseligibleto mitresolutionplan asperfinallistof olutionProfessionalorOrder,ifany,ofthe udicatingAuthority?	Not mentioned	Yes
30(1)	Wh sub	ethertheResolutionApplicanthas r4ittedanaffidavitstating thatitiselieible?	Not mentioned	Yes
30(2)	Wh (a)	ether the Resolution Plan- Providesforthepaymentofinsolvency resolutionprocesscosts?		Yes
	(b)	Providesfor thepaymenttothe operational creditors?		Yes
	(c)	Providesforthepaymenttothefinancial creditors who did not voteinfavourofthe resolutionplan?	Para8	NA
	(d)	Providesforthe managementoftheaffairs ofthe corporate debtor?		Yes
	(e)	Providesfortheimplementationand supervisionoftheresolutionplan?		Yes
	(0	Contravenesanyofthe provisionsofthe law forthetimebeinginforce?		No

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30(4)	Whether theResolutionPlan (a)Isfeasibleand viable,accordingto CoC? (b)Has been approvedbythe CoCwith votinsshare? the 66%	Not Mentioned	Yes
31(1)	WhethertheResolutionPlanhasprovisionsfor itseffectiveimplementation plan, accordingto the CoC?	Para8	Yes
Regulation 35A	Whethertheresolution professionalmadea determinationifthecorporatedebtorhasbeen subjectedtoanytransactionofthenature coveredunder Sections43,45,50or66.Before theonehundredandfifteenthdayofthe insolvencycommencementdate,under intimation tothe Board?	Not Mentioned	NA
38(l)	Whethertheamountduetotheoperational creditors undertheresolutionplanhasbeen givenpriorityinpaymentoverfinancial creditors?	Para10	Yes
38(1A)	Whethertheresolutionplanincludesa statementastohowithas dealtwiththe interestsof allthestakeholders?	Paral0	Yes
38(18)	(i) Whether the resolutionApplicantorany of itsrelated partieshasfailedto implement or contributed tothefailureof implementationofanyresolutionplan approved under theCode. (ii)Ifso, whethertheResolutionApplicant hassubmittedthestatementgiving detailsofsuchnon-implementation?	Para10	Yes
38(2)	V/hether theResolutionPlan provides: (a)Thetermof the plan andits implementationschedule? (b)Forthe managementandthecontrolofthe businessofthe CorporateDebtor duringits term? (c)Adequatemeansforsupervisingits implementation?	Para10	Yes
38(3)	Whether theResolutionPlandemonstratesthat- (a)Itaddressesthecauseofdefault? (b)Itis feasibleandviable? (c)Ithasprovisionsfor itseffective implementation? (d)Ithas provisionsforapprovalsrequired andtimeline forthesame? (e)The resolution applicanthasthe capability	Para10	Yes

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	to implementthe Resolution Plan
3e(2)	Whetherthe RPhasfiledApplicationsin respectoftransactionobserved,foundor determinedby him?	Not Mentioned	NA
3e(4)	Providedetailsofperformancesecurity received,asreferredinsub-regulation(aA)of Reeulation 368?	Not Mentioned	Yes

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The approval ofthe resolution plan has been sought under Section 3^{I ( 1)} of the Code, which reads as follows:

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"If the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requirements as referued to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under ony law for the time being in force such as authorities to whom statutory dues are owed, guorantors and other stakeholders involved in the resolution plan.

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Provided that the Adjudicating Authority shall, before passing an order for^{approval of resolution plan under this sub-section,satisfythat the} resolution plan has provisions for its effective implementation."

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lg. The conditions provided in Section 31(1) of the Code for approval of

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resolution plan are as follows: -

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a) The Resolution Planis approved by the CoC under Section 30ft) of the Code,

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b) The Resolution Plon so opproved meets the requirements as referred to in Section 30(2) of the Code;

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c) The Resolution Plan has provisions for^{its effective} implementation.

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The satisfaction of the conditions is discussed below.

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The RP submits that the committee has approved the resolution plan with

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100% of the voting share of the financial creditors, and the conditions provided for by Section 30(4) of the Code are satisfied.

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The provisions of Section30(2) of the Code are as follows:

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" (2) The resolution professional shall examine each resolution plan

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received by him to confirm that each resolution plan -

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a) provides.for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the payment of other debts of the corporate debtor,

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b) provides.for the payment of debts of operational creditors in such manner as may be specified by the Boardwhich shall not be less than(i) the amount to be paid to such creditors in the event of a liquidation of the corporate debtor under section 53; or

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(ii) the amount that would have been paid to such creditors, tf the amount to be distributed under the resolution plan had been distributed in accordance with the order of priorie in subsection (1) of section 5^j,

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whichever is higher, and provides for the payment of debts of

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financial^{creditors, who do not vote infavour of the resolution plan,} in such manner as may be specified by the Board, which shall not be less than the amount to be paid to such creditors in accordance with sub-section (I) of section 53 in the awt of a liquidation of fre corporate debtor.

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Explanation l. - For removal of doubts, it is hereby clarified that a distribution in accordance with the provisions of this clause shall be fair^{and equitableto such creditors.}

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Explanation 2. - For the purpose of this clause, it is hereby declared that on and from the date of commencement of the Insolvency and

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Bankruptcy Code (Amendment) Act, 2019, the provisions of this clause sholl also apply to the corporate ins olvency resolution process of a corporate debtor-

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(i) where a resolution plan has not been approved or rejected by the Adj udic ating Authority ;

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(ii) where an appeal has been preferred under section 6I or section 62 or such an appeal is not time barred under^qny provision of lawfor the time being inforce; or

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(iii) where a legal proceeding has been initiated in any court against the decision of the Adjudicating Authority in respect of a resolution plan;

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t) provides for the management of the affairs of the corporate debtor after approval of the resolution plan,

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d) The implementation and supervision of the resolution plan,

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e) does not contravene any of the provisions of the law for the time being in force

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fl confirms to such other requirements as may be specified by the Board.

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Explanation. - For the purposes of clause (e), ,f ,ny approval of shareholders is required under the Companies Act, 2013(18 of 201j) or any other law for the time being in force for the implementation of actions under the resolution plan, such approval shall be deemed to have been given and it shall not be a contravention of that Act or lqw."

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The compliance of Section 30(2) of the Code is given in Para-No. 9 of

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Form H(supra). The same is being further examined as under:

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a. Section 30(2)(a): The resolution plan (Chapter 10 at Page 36 of the Application) states that Resolution Applicant shall provide funds for payment of CIRP Cost, and the CIRP Cost shall be fully paid

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and discharged before any payment is made to any of the creditors.

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b. Section 30(2)(b): From the^{resolution plan (Chapter 10 at Page 36} of the Application), it could be^{seen that the outstanding of} operational creditors is Rs. 1,50,000/-^{(includesany additional claim} onwhatsoever account and nature^{would be settled by the Resolution} Applicant). The Resolution Applicant^{has proposedto payan} amount of Rs. 17,0001- (within a^period of^{30 days of the effective} date) to the Operational Creditors^against full^{settlement of all} claims. Concerning payment to financial^{creditors who has not} made any claims to Rs. 1,91,89,8251- the^{ResolutionApplicantis} under no obligation to^pay any amount for the^{same.Hence,any} secured and unsecured financial creditors claim^{dues from the} Resolution Applicant after the effective date, a total^{considerationof} Rs.1,000/- shall be distributed amongst thecreditors^{in the ratio of their} outstanding dues as per books of accounts.

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Section 30(2)(c): Resolution Plan^(Chapter l0^{at Pg 36 of} Application) provides that the management and control of^the business of the Corporate Debtor shall be^{handedover to the} nominee(s) of Resolution Applicant for^proper running^and operations of the business of the Corporate Debtor^{subject to the} approval of this Adjudicating Authority.

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d. Section 30(2)(d): In Chapter 10 Pg.37 of^{Resolution Plan, it is}

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stated that subject to the approval of this Adjudicating Authority,^the Board of Directors of the Resolution Applicant shall supervise^the implementation and execution of the Resolution Plan.

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e. Section 30(2)(e): In Form H Para 4, the RP has certified^{that the} Resolution Plan does not contravene any of the^provisions of^the law for the time being in force.

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The RP has also certified that Mr. Satish Chaudhary, the resolution applicant, has submitted an affidavit pursuant to Section 30(l) of the Code confirming its eligibility under Section 29A of the Code to submit the resolution plan, and the contents of the said affidavit are in order.

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As per the requirement of Regulation 39(4) of the Regulations for performance securiy, it is stated in the 4th Meeting of CoC that the Earnest Money Deposit (EMD) received from the Resolution Applicant should be considered as perfofinance security and the committee approved the same with 100% of voting share. Thus, it is stated in Form H that the same has been complied with.

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With regard to the compliance under Regulation 35A, it is stated that the same is not available/applicable and also not mentioned in any of the Clauses ofthe Resolution Plan.

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A perusal of Regulation 38 would clearly show that by virtue of mandatory

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' cit ,.SrL JCL

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contents of resolution plan as discussed in the preceding^paragraphs in relation to Section 30 and Section 31 of the Code, the requirement of Regulation 38 also stands fulfilled. Thus, the resolution plan fulfiIs all the requirements of Regulation 38 of the CIRP Regulations.

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The Resolution Plan inter-alia entails the following:

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a) No Corporate Restructuring by way of merger, amalgamation and demerger shall be allowed. However, it envisages conversion of the Company into Limited Liability Partnership whereby the Memorandum ofAssociation and the Articles ofAssociation ofthe Company shall be, automatically, without any further act or deed, be substituted and repealed with the Limited Liability Partnership Agreement.

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b) No cancellation of any consents, approvals, licenses, concessions, authorizations, permits or the like granted to the Corporate Debtor or for which the Corporate Debtor has made an application for renewal or grant.

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c) Reset financial debt and operational debt as per the parameters ofthe Resolution Plan.

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d) Extinguishment of anyl all claims against the Corporate Debtor along with related legal proceedings, including criminal proceedings and otherproceedings which shall stand abated, settled and extinguished.

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e) Change of Board of Directors and handing over of management to the

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Resolution Applicant upon sanction of the plan from the effective date, the effective date being the date of handover by the RP to the Resolution Applicant.

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D^{Continuityof businesswherein the ResolutionApplicanthas requested} that any required business permits that may not have been granted or cancelled/ terminatedl revoked/ suspended be granted/ restored/ renewed/ reinstated. In this respect, the Resolution Applicant is directed to follow up with the concerned authorities for maintaining/ sustaining operations as a going concern, following applicable laws, rules and procedures.

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g) The term ofthe plan and its implementation schedule is envisaged to be a period of 60 days.

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In view of the above discussion, the Resolution Plan submitted by Mr. Satish Chaudhary as approved by the CoC under Section 30(4) ofthe Code is hereby authorised. The Resolution Plan so approved shall be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Govemment orany local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force such as authorities to whom statutory dues are owed,

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guarantors and other stakeholders involved in the ResolutionPlan.

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