Imp. Rulings - Differential Payments in Resolution Plan
Index;
NCLAT (2024.12.11) in NCC Ltd. Vs. Golden Jubilee Hotels Pvt. Ltd. and Ors.. (2024) ibclaw.in 819 NCLAT, Comp. App. (AT) (Ins.) No. 426 of 2020 and I.A. No. 1702, 2198, 2199 of 2023 with Comp. App. (AT) (Ins.) No. 430 of 2020 with Comp. App. (AT) (Ins.) No. 432 of 2020 with Comp. App. (AT) (Ins.) No. 710 of 2020]
NCLAT (2023.07.13) In Akashganga Processors Pvt. Ltd. Vs. Shri Ravindra Kumar Goyal & Ors. [Company Appeal (AT) (Insolvency) No.1148 of 2022]
SCI (2023.05.03) in M.K. Rajagopalan Vs. Dr. Periasamy Palani Gounder & Anr. [Civil Appeal Nos. 1682-1683, 1756, 1759, 1757, 1807, 1810 and 1827 of 2022]
NCLAT (2022.11.24) in Greater Noida Industrial Development Authority Vs. Mr. Prabhjit Singh Soni & Anr. [Company Appeal (AT)(Insolvency) No.867 of 2021 & I.A. No. 2315 of 2021]
SCI (2021.08.10) in Pratap Technocrats (P) Ltd. & Ors. vs. Monitoring Committee of Reliance Infratel Limited & Anr.. [Civil Appeal No 676 of 2021]
SCI (2019.11.15) in CoC of Essar Steel India Limited vs. Satish Kumar Gupta & Ors. (Civil Appeal No. 8766-67 OF 2019)
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Provisions of the Code;
# Section 30. Submission of resolution plan. -
(1) A resolution applicant may submit a resolution plan along with an affidavit stating that he is eligible under section 29A to the resolution professional prepared on the basis of the information memorandum.
(2) The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan -
(a) provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the 3[payment] of other debts of the corporate debtor;
(b) provides for the payment of debts of operational creditors in such manner as may be specified by the Board which 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
(ii) the amount that would have been paid to such creditors, if the amount to be distributed under the resolution plan had been distributed in accordance with the order of priority in sub-section (1) of section 53, whichever is higher, and provides for the payment of debts of financial creditors, who do not vote in favour 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 (1) of section 53 in the event of a liquidation of the corporate debtor.
Explanation 1. — For removal of doubts, it is hereby clarified that a distribution in accordance with the provisions of this clause shall be fair and equitable to such creditors.
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(3) The resolution professional shall present to the committee of creditors for its approval such resolution plans which confirm the conditions referred to in sub-section (2).
(4) The committee of creditors may approve a resolution plan by a vote of not less than sixty-six per cent. of voting share of the financial creditors, after considering its feasibility and viability, the manner of distribution proposed, which may take into account the order of priority amongst creditors as laid down in sub-section (1) of section 53, including the priority and value of the security interest of a secured creditor and such other requirements as may be specified by the Board:
Provided that the committee of creditors shall not approve a resolution plan, submitted before the commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2017 (Ord. 7 of 2017), where the resolution applicant is ineligible under section 29A and may require the resolution professional to invite a fresh resolution plan where no other resolution plan is available with it:
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CIRP Regulations
# Regulation 37. Resolution plan.
A resolution plan shall provide for the measures, as may be necessary, for insolvency resolution of the corporate debtor for maximization of value of its assets, including but not limited to the following: -
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# Regulation 38. Mandatory contents of the resolution plan.
(1) The amount payable under a resolution plan -
(a) to the operational creditors shall be paid in priority over financial creditors; and
(b) to the financial creditors, who have a right to vote under sub-section (2) of section 21 and did not vote in favour of the resolution plan, shall be paid in priority over financial creditors who voted in favour of the plan.
(1A). A resolution plan shall include a statement as to how it has dealt with the interests of all stakeholders, including financial creditors and operational creditors, of the corporate debtor.]
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From the above it can be observed that;
1. Section 30(2) provides for minimum payment to be made to the operational creditor and dissenting financial creditor, i.e. which shall not be less than the amount to be paid to such creditors in accordance with sub-section (1) of section 53 in the event of a liquidation of the corporate debtor.
2. Subject to the provisions of section 30(2), complete flexibility has been provided to the resolution applicant to propose distribution of funds, in a differential manner, amongst different creditors of the CD, keeping in view the viability and future exigencies of the business. The complete flexibility of resolution applicant, subject to section 30(2), in distribution of funds has been recognised by Hon’ble Supreme Court in CoC of Essar Steel India Limited vs. Satish Kumar Gupta & Ors. (Civil Appeal No. 8766-67 OF 2019.
3. Concept of differential payments in a class of creditors is inherent in the Code, as evident from the provisions of section 53.
Operational Creditors;
4. As per section 30(4) CoC may approve a resolution plan by a vote of not less than sixty-six per cent. of voting share of the financial creditors, after considering its feasibility and viability, the manner of distribution proposed, which may take into account the order of priority amongst creditors as laid down in sub-section (1) of section 53, including the priority and value of the security interest of a secured creditor and such other requirements as may be specified by the Board.
Here it is quite important to note that under sub section 4 of section 30, the word may has been used, whereas in the proviso to sub section 4 of section 30, the word shall has been used. This clearly emphasises that the provisions of section 53(1) are directory during CIRP process and are not mandatory.;
Section 30(4) . . . . . . the manner of distribution proposed, which may take into account the order of priority amongst creditors as laid down in sub-section (1) of section 53, including the priority and value of the security interest of a secured creditor and such other requirements as may be specified by the Board:
Provisions of Section 53 are mandatory during Liquidation process & are only directory during the Corporate Insolvency Resolution Process, and non compliance of the provisions of section 53 during CIRP cannot be construed as contravention of any of the provisions of the law for the time being in force (section 30(2)(e).
5. Regulation 38(1) provides that operational creditors & dissenting financial creditors, as per the provisions of section 30(2), shall be paid their share of the resolution plan, in priority over financial creditors who voted in favour of the plan. It nowhere specifies the quantum of share of operational creditors & dissenting financial creditors in the resolution plan is required to be paid.
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1). NCLAT (2024.12.11) in NCC Ltd. Vs. Golden Jubilee Hotels Pvt. Ltd. and Ors.. (2024) ibclaw.in 819 NCLAT, Comp. App. (AT) (Ins.) No. 426 of 2020 and I.A. No. 1702, 2198, 2199 of 2023 with Comp. App. (AT) (Ins.) No. 430 of 2020 with Comp. App. (AT) (Ins.) No. 432 of 2020 with Comp. App. (AT) (Ins.) No. 710 of 2020] held that;
This Appellate Tribunal in earlier case of Central Bank of India Vs Resolution Professional Of the Sirpur Paper Mills Ltd. & Ors. in Company Appeal (AT) (Insolvency) No. 526 of 2018 has clarified that as long as two or more Financial Creditor’s or two or more financial and operational Creditors are not similarly situated then there is no discrimination between them under a Resolution Plan.
While the Code does not categorize any operational creditors as “special,” it does recognize different classes of operational creditors based on their claims. For instance, operational debts can include dues related to the supply of goods and services, employment-related obligations, and statutory dues payable to government authorities. However, all operational creditors are treated under the same legal framework without special distinctions within their category.
Thus, this Appellate Tribunal held that in reality, there is no embargo for the classification of Operational creditor(s) into separate classes for deciding the way in which the money is to be distributed to them by the CoC because CoC has the subjective and final discretion of Collective Commercial Wisdom in relation to the amount to be paid as well as the quantum of money to be paid.
We have also seen the few cases of this Appellate Tribunal and the Hon’ble Supreme Court of India like Essar Steel (Supra), Excel Engineering (Supra), Sivana Realty Private Limited (Supra), where differential treatments have been accorded to different creditors even in the same category and they have been held to be legal and valid and found to be inconformity to Section 30(2) of the Code. Thus, we do not find any illegality in the Impugned Order approving the Resolution Plan having discriminatory treatment to Special Operational Creditors.
The fact remains is that it is for the SRA to allocate the funds proposed to be distributed amongst the Creditors based on his overall business Plan and strategy for revival of the Corporate Debtor and to ensure viability and feasibility of such Resolution Plan. Similarly, exercise of the commercial wisdom by CoC is undertaken to look into various parameters including viability and feasibility of the Resolution Plan and once satisfied, as long as the Operational Creditor are provided atleast the liquidation value w.r.t. their claims, such Resolution Plan can be approved as done in present case.
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2). NCLAT (2023.07.13) In Akashganga Processors Pvt. Ltd. Vs. Shri Ravindra Kumar Goyal & Ors. [Company Appeal (AT) (Insolvency) No.1148 of 2022] held that;
Fair and equitable dealing of operational creditors’ rights under the said Regulation involves the resolution plan stating as to how it has dealt with the interests of operational creditors, which is not the same thing as saying that they must be paid the same amount of their debt proportionately.
Also, the fact that the operational creditors are given priority in payment over all financial creditors does not lead to the conclusion that such payment must necessarily be the same recovery percentage as financial creditors.
So long as the provisions of the Code and the Regulations have been met, it is the commercial wisdom of the requisite majority of the Committee of Creditors which is to negotiate and accept a resolution plan, which may involve differential payment to different classes of creditors.
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3). SCI (2023.05.03) in M.K. Rajagopalan Vs. Dr. Periasamy Palani Gounder & Anr. [Civil Appeal Nos. 1682-1683, 1756, 1759, 1757, 1807, 1810 and 1827 of 2022] held that;
It has rightly been argued on behalf of the appellants and had rightly been observed by the Adjudicating Authority (vide extraction in paragraph 15.4.1 hereinabove) that there was no provision in the Code which mandates that the related party should be paid in parity with the unrelated party.
So long as the provisions of Code and CIRP Regulations are met, any proposition of differential payment to different class of creditors in the resolution plan is, ultimately, subject to the commercial wisdom of CoC and no fault can be attached to the resolution plan merely for not making the provisions for related party.
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4). NCLAT (2022.11.24) in Greater Noida Industrial Development Authority Vs. Mr. Prabhjit Singh Soni & Anr. [Company Appeal (AT)(Insolvency) No.867 of 2021 & I.A. No. 2315 of 2021] held that;
“The definition of ‘Financial Debt’ in section 5(8) of IB Code then goes on to state that a debt must be disbursed against the consideration for the time value of money….”
There is no embargo on creating subclasses between the ‘Operational Creditors’ for deciding the manner in which the ‘Resolution Amount’ is to be distributed.
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5). SCI (2021.08.10) in Pratap Technocrats (P) Ltd. & Ors. vs. Monitoring Committee of Reliance Infratel Limited & Anr.. [Civil Appeal No 676 of 2021] held that;
# 22. . . .The jurisdiction of the Adjudicating Authority under Section 31(1) is to determine whether the resolution plan, as approved by the CoC, complies with the requirements of Section 30(2). The NCLT is within its jurisdiction in approving a resolution plan which accords with the IBC. There is no equity-based jurisdiction with the NCLT, under the provisions of the IBC.
# 29. . . . . Fair and equitable treatment, in other words, is what is fair and equitable between the operational creditors as a class, and not between different classes of creditors. The statute has indicated that once the requirements of Section 30(2)(b) are fulfilled, the distribution in accordance with its provisions is to be treated as fair and equitable to the operational creditors.
# 39. . . . .The jurisdiction of the Adjudicating Authority and the Appellate Authority cannot extend into entering upon merits of a business decision made by a requisite majority of the CoC in its commercial wisdom. Nor is there a residual equity based jurisdiction in the Adjudicating Authority or the Appellate Authority to interfere in this decision, so long as it is otherwise in conformity with the provisions of the IBC and the Regulations under the enactment.
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6). SCI (2019.11.15) in CoC of Essar Steel India Limited vs. Satish Kumar Gupta & Ors. (Civil Appeal No. 8766-67 OF 2019) held that;
# 40. The importance of the majority decision of the Committee of Creditors is then stated in Section 31(1) of the Code which is set out as follows:
“31. Approval of resolution plan
(1) 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 referred 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, guarantors and other stakeholders involved in the resolution plan.”
Thus, what is left to the majority decision of the Committee of Creditors is the “feasibility and viability” of a resolution plan, which obviously takes into account all aspects of the plan, including the manner of distribution of funds among the various classes of creditors. As an example, take the case of a resolution plan which does not provide for payment of electricity dues. It is certainly open to the Committee of Creditors to suggest a modification to the prospective resolution applicant to the effect that such dues ought to be paid in full, so that the carrying on of the business of the corporate debtor does not become impossible for want of a most basic and essential element for the carrying on of such business, namely, electricity. This may, in turn, be accepted by the resolution applicant with a consequent modification as to distribution of funds, payment being provided to a certain type of operational creditor, namely, the electricity distribution company, out of upfront payment offered by the proposed resolution applicant which may also result in a consequent reduction of amounts payable to other financial and operational creditors. What is important is that it is the commercial wisdom of this majority of creditors which is to determine, through negotiation with the prospective resolution applicant, as to how and in what manner the corporate resolution process is to take place.
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