No Acts & Articles mentioned in this case
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.9402-9405 OF 2018
ARCELORMITTAL INDIA PRIVATE LIMITED …APPELLANT
VERSUS
SATISH KUMAR GUPTA & ORS. ...RESPONDENTS
WITH
CIVIL APPEAL NO.9582 OF 2018
CIVIL APPEAL NO._______ OF 2018
DIARY NO.35253 OF 2018
CIVIL APPEAL NO._______ OF 2018
DIARY NO.33971 OF 2018
J U D G M E N T
R.F. Nariman, J.
1. The facts of the present case revolve around the ineligibility
of resolution applicants to submit resolution plans after the
introduction of Section 29A into the Insolvency and Bankruptcy
Code, 2016 (hereinafter referred to as “the Code”), with effect from
23.11.2017.
2.On 2.8.2017, the Adjudicating Authority, being the NCLT,
Ahmedabad Bench, passed an order under Section 7 of the Code
at the behest of financial creditors, being the State Bank of India 2018 INSC 935
2
and the Standard Chartered Bank, admitting a petition filed under
the Code for financial debts owed to them by the corporate debtor
Essar Steel India Limited (hereinafter referred to as “ESIL”), in the
sum of roughly Rs.45,000,00,00,000 (Rupees Forty Five
Thousand Crores). Shri Satish Kumar Gupta was appointed as
the Interim Resolution Professional and confirmed as such on
4.9.2017. Consequently, the Resolution Professional published an
advertisement dated 6.10.2017, seeking expression of interest
from potential resolution applicants who wished to submit
resolution plans for the revival of ESIL. In terms of the
advertisement, the last date for submission of an expression of
interest was 23.10.2017. Pursuant to this advertisement, one
‘ArcelorMittal India Private Limited’ (hereinafter referred to as
“AMIPL”) submitted an expression of interest on 11.10.2017. An
entity called Numetal Limited (hereinafter referred to as
“Numetal”), also submitted an expression of interest on
20.10.2017. On 24.12.2017, the Resolution Professional
published a ‘request for proposal’, in which it was stated that the
last date for submission of resolution plans would be 29.1.2018.
On a request made by the Committee of Creditors, the NCLT
extended the duration of the corporate insolvency resolution
process by 90 days beyond the initial period of 180 days, i.e., upto
3
29.4.2018. The Resolution Professional therefore issued the first
addendum to the request for proposal, extending the date for
submission of resolution plans to 12.2.2018. Given this, both
AMIPL and Numetal submitted their resolution plans on this date.
On 20.3.2018, apprehending that the Resolution Professional
would recommend that it be declared ineligible, Numetal filed I.A.
No. 98 of 2018 before the NCLT inter alia seeking that it be
declared eligible as a resolution applicant. On 23.3.2018,
however, the Resolution Professional found both AMIPL and
Numetal to be ineligible under Section 29A. Insofar as AMIPL is
concerned, the Resolution Professional found thus:
“2. Please note that during the course of the evaluation
of the Resolution Plan, I became aware of the fact that
ArcelorMittal Netherlands B.V. (AM Netherlands)
(which is mentioned as a ‘connected person’ of AM
India in the Resolution Plan) has been disclosed as the
‘promoter’ of Uttam Galva Steels Limited (Uttam
Galva) pursuant to which my Advisor had requested
certain clarifications from AM India on 26 February
2018 (Request for Clarification 1) and on 14 March
2018 (Request for Clarification 2). Further to the
responses received from AM India on 28 February
2018 and 17 March 2018 (collectively the AM India
Responses) on the aforementioned requests for
clarifications, I understand that:
2.1. AM Netherlands had acquired 29.05% of the
shareholding in Uttam Galva in 2009 and has since
been classified as a promoter of Uttam Galva;
2.2. AM Netherlands had entered into a ‘co-promoter’
agreement dated 4 September 2009 with the other
4
promoters of Uttam Galva (Co-Promoter Agreement)
under which AM Netherlands had various rights
(including certain rights which can be considered as
participative in nature and not merely protective);
2.3. Uttam Galva’s account was classified as a ‘non-
performing asset’ (NPA) on 31 March 2016 by Canara
Bank and Punjab National Bank (which classification
has continued for more 1 year till 02 August 2017);
2.4. AM Netherlands has sold its shareholding in Uttam
Galva to the other promoters of Uttam Galva on 7
February 2018; and
2.5. AM Netherlands has applied to the National Stock
Exchange Limited and the BSE Limited, each on 8
February 2018 for declassification as a ‘promoter’ of
Uttam Galva under Regulation 31A(2) of the Securities
and Exchange Board of India
3. Further, as on the Plan Submission Date, AM
Netherlands (had not obtained the Stock Exchange
Approvals relating to declassification as a promoter of
Uttam Galva and) continued to be classified as a
promoter of Uttam Galva.
4. In light of the above, AM India is ineligible under the
provisions of Section 29A(c) of the IBC and pursuant to
paragraph 4.11.2(a) of the RPP, the Resolution Plan is
hereby rejected and will not be placed before the
Committee of Creditors.”
3.Similarly, holding Numetal to be ineligible, the Resolution
Professional, on the same date, found:
“2.1. as on the date of submission of its expression of
interest (EOI) on 20 October 2017 by Numetal, it relied
on Essar Communications Limited (ECL), one of its
shareholders to comply with the eligibility requirement
relating to its ‘tangible net worth’ (TNW) (as stipulated
in the section titled ‘Eligibility Criteria’ in the EOI);
2.2. as on the Plan Submission Date, Numetal relied
5
on Crinium Bay, its shareholder to comply with the
eligibility requirement relating to its TNW (as stipulated
in Section 6.7 of the Resolution Plan);
2.3. Numetal was incorporated 7 days before
submission of the EOI; and
2.4. Numetal is a newly incorporated joint venture
between Aurora Enterprises Limited, Crinium Bay, Indo
International Limited and Tyazhpromexport.
3. Since Numetal has at all stages relied on its
shareholders to comply with the eligibility requirements
relating to submission of a resolution plan in respect of
ESIL, for the purposes of ensuring compliance with
Section 29A of the Insolvency and Bankruptcy Code,
2016 (IBC), I have considered each of the
shareholders of Numetal as joint venture partners to be
acting jointly for the purposes of submission of the
Resolution Plan. Whilst considering the eligibility of the
shareholders of Numetal, since Aurora Enterprises
Limited (AEL) is held completely by Rewant Ruia
(through various companies and a trust), I have
considered Rewant Ruia, Crinium Bay, Indo
International Limited and Tyazhpromexport for scrutiny
under Section 29A of the IBC.
4. Further, pursuant to Regulation 2(q) of the Securities
and Exchange Board of India (Substantial Acquisition
of Shares and Takeovers) Regulations, 2011 (SAST
Regulations), a person is deemed to acting in concert
with amongst others, his (or her) ‘immediate relatives’,
which term (as defined under Regulation 2(1) of the
SAST Regulations) includes the father of such person.
Therefore, in relation to the Resolution Plan in respect
of ESIL (which contemplates the acquisition of ESIL by
Numetal by way of a merger of ESIL with a wholly
owned subsidiary of Numetal), Rewant Ruia is deemed
to be acting in concert with his father Ravi Ruia.
5. Further, as on the Plan Submission Date:
(a)* Ravi Ruia (who Rewant Ruia is deemed to
be acting in concert with) was the promoter of
6
ESIL whose account was classified as an NPA
for more than 1 year, prior to the commencement
of corporate-insolvency resolution process
(CIRP) of ESIL on 2 August 2017; and
(b) Ravi Ruia (who Rewant Ruia is deemed to be
acting in concert with) has executed a guarantee
in favour of SBI (for itself and a consortium of
lenders) and the CIRP application filed by SBI
has been admitted by the National Company Law
Tribunal on 2 August 2017.
6. In light of the above, Rewant Ruia (who is acting
jointly with the other shareholders of Numetal for the
purposes of submission of the Resolution Plan) is
ineligible under Section 29A of the IBC, specifically
paragraphs (c) and (h) and accordingly, as on the Plan
Submission Date, Numetal (which is nothing but an
incorporated joint venture investment vehicle through
which its shareholders are submitting the Resolution
Plan) was not eligible under Section 29A of the IBC.
7. Accordingly and for the reasons set out in
paragraphs 5 and 6 above, please note that pursuant
to paragraph 4.11.2(a) of the RFP, the Resolution Plan
is hereby rejected and will not be placed before the
Committee of Creditors.”
4.On 26.3.2018, AMIPL filed I.A. No. 110 of 2018 before the
Adjudicating Authority, challenging “the order” of the Resolution
Professional dated 23.03.2018. Numetal did likewise vide I.A. No.
111 of 2018.
5.On 2.4.2018, pursuant to the Resolution Professional’s
invitation, fresh resolution plans were submitted (as both the
resolution plans before this were found to be ineligible) by AMIPL,
7
Numetal, and one other entity, namely ‘Vedanta Resources Ltd.’.
On this very date, the NCLT directed that the bids of the resolution
applicants, submitted pursuant to the revised request for proposal,
should not be opened pending adjudication of I.A. No. 98 of 2018
filed by Numetal.
6.On 19.4.2018, the Adjudicating Authority, being the NCLT,
passed its order in all the I.A.s, in which it first held:
“21. As per the matter available on the record, a third
party contestant, Arcelor Mittal India Pvt. Ltd., by filing
Additional Application No. P-7 of 2018 has also sought
for impleading itself in Intervention Application No. IA
98/2018 the Numetal has filed a Reply opposing such
relief as being sought for by the present Applicant,
Numetal Ltd., and in the present IA and also sought a
declaration in its favour to be declared as eligible for
filing a valid resolution plan as on 12.2.2018 thus, it
has opposed the application alleging
disability/ineligibility on the part of M/s. Numetal Ltd., to
file a valid and proper resolution plan as on date of
12.2.2018. Since we have not decided the
Impleadment Application in favour of ArcelorMittal by
formally impleading it as party in the present I.A. No.
98 of 2018 and only audience were given to its learned
counsel in support of its resolution plan, therefore, we
find it appropriate to confine the issue of determination
of eligibility mainly on the reason which formed a basis
for the RP and CoC for not founding eligible for
submission of resolution plan by the resolution
applicant, M/s. Numetal Ltd., and not on additional
ground as put forth by the ArcelorMittal. However, the
oral submissions advanced by learned counsel for
parties including the ArcelorMittal duly supported by
their Written Submissions are being taken into
consideration for deciding the issue involved in the
present application.
For arriving at such findings/conclusion of the RP has
8
obtained legal opinion and its such findings is based
on such opinion which were explained to the CoC for
reaching to appropriate conclusion/decision. Equally,
the applicant in I.A. No. 98/2018 also obtain legal
opinion from renowned jurists, e.g. (former judge of the
hon'ble Supreme Court) and from former learned Law
Officer of the GOI which are placed on record along
with the present IA also in support of their case in this
opinion it is expressed the Numetal Ltd. (Resolution
Applicant) is a single and independent corporate entity
and it cannot be termed as a consortium of its
shareholders not it intend to implement the resolution
plan jointly with another person hence, in view of this
the amended clause 4.11.2(1) to the RFP would
neither be applicable nor binding upon the resolution
applicant and thus, it is not required at all to seek an
approval from the RP or the CoC. In respect of
proposed change its shareholding of ESIL in terms of
RET and also are required under the other provisions
of the Law. It has been also emphasised that the
Numetal Ltd., is not a SPV brought into existence
merely for the purpose of submitting the resolution plan
in respect of the corporate debtor ESIL as it has
recently entered into an agreement to acquire majority
stock in Odisha Slurry Pipeline Infrastructure Ltd., by
an independent contract from the Resolution Plan.
Thus, it cannot be presumed that the applicant is such
a corporate entity which is brought into the existence
only for the purpose of putting forth resolution plan for
the ESIL.
Since, there is difference in the legal opinions among
the Learned Luminaries and law firms and more than
one views are possible in the present case to be acted
upon then, it cannot be said that there is patently
illegality in the conclusion of the RP or it acted
arbitrarily or mala fidely in rejecting the resolution plan
by relying on the legal opinion received and believed to
be true by him and which were placed before the CoC.
Moreover, the RP under the provision of the Code it is
expected to make scrutiny of a resolution plan in
conformity with the law of the land and to take such a
prudent decision which a common man in normal
course may arrive and think just and proper. This court
being the Adjudicating Authority under the Code is not
9
expected to substitute its view upon the discretion and
wisdom of the RP and CoC to opt for only which a
particular view until and unless it is the case of patent
illegality or arbitrariness.
Therefore, for the aforesaid reason in our prima facie
view we do not find any patent illegality in the decision
of the RP for declaring ineligible to applicants which is
a prudent decision where there is possibility of more
than one legal view then this court at this stage is not
expected to substitute its view and to interfere with the
conclusion of the RP.”
7.It then went on to hold:
“19. Thus, the date on which a person stands
disqualified would be the date of commencement of
the Corporate Insolvency Resolution Process of
the Corporate Debtor, i.e., ESIL. This date is
02.08.2017 on which date, ArcelorMittal India Pvt. Ltd.,
is disqualified in view of the fact that its connected
persons of AM Netherland and L.N. Mittal are
disqualified as they have an account or an account of
the corporate debtor under their management and
control or of whom they are a promoter classified as
NPA under the guidelines of the Reserve Bank of India
and at least a period of one year has lapsed from the
date of such classification till the date of
commencement of corporate insolvency resolution
process of the corporate debtor. The said
disqualification starts from 02.08.2017 can only be
remedied in the manner provided in the proviso to
clause (c) of section 29A read with section 30(4)
proviso and in no other manner. The disqualification
commenced on 02.08.2017 continues till 12.02.2018
and the same disqualification cannot be relieved by
merely ceasing to be the promoter or by selling shares
in the companies whose accounts are NPA such as
Uttam Galva or KSS Petron.
20. On perusal of annexure R/4, i.e., shareholding
pattern annexed with the reply of Numetal Ltd., it is
found that ArcelorMittal is a publicly known promoter of
Uttam Galva and its shareholding is classified under
"promoter and promoter group" in the filings made in
the Stock Exchange of India. As per shareholding
10
pattern of Uttam Galva disclosed in the stock
exchange as on December, 2017 ArcelorMittal was a
single largest shareholder having significant
shareholding of 29.05 % in Uttam Galva.
21. On perusal of the record it is found that connected
person of the applicant are the promoter of KSS Petron
Pvt. Ltd., a company incorporated under the
Companies Act, 1956, having registered office at
Swastik Chamber, 6th Floor, Sion Trombay Road,
Chembur, Mumbai has been NPA for more than a year
and CIRP has been initiated against the KSS Petron
vide order dated 01.08.2017 by Mumbai Bench of the
National Company Law Tribunal.
22. It is also pertinent to mention herein that, in the
minutes of the meeting of the committee of creditors
which reproduces the decision of the RP pursuant to
the opinions received by the RP from Cyril Amarchand
Mangaldas and Mr. Khambatta.
Cyril Amarchand Mangaldas had opined that AM
Netherlands exercised positive control over Uttam
Galva and merely divesting the shareholding prior to
the submission of the resolution plan could not remove
the disqualification under section 29A(c) of the Code,
unless cured by payment.
23. It is an admitted position that AM Netherlands is an
indirect 100% subsidiary of ArcelorMittal Societe
Anonyme (AMSA) which is a listed company
incorporated in Luxemburg. On the other hand, AM
India is also an indirect subsidiary (99.99%) of AMSA.
Accordingly, AMSA is promoter, in management and in
control of AM India, the resolution applicant and AM
Netherlands is a subsidiary company/associate
company of AMSA in view of which AM Netherlands
becomes a connected person and such connected
person has an account of corporate debtor Uttam
Galva under its management, control or of whom such
connected person, namely, AM Netherlands is a
promoter is classified as NPA for more than one year
before 02.082017. Consequently, AM India shall not be
eligible to submit a resolution plan as on 12.02.2018.
24. It is an admitted position that Laxminarayan Mittal
is controlling AM India being an indirect subsidiary of
11
AMSA. Accordingly, LN Mittal/AMSA is promoter in
management and in control of AM India, the resolution
applicant, and LN Mittal is also in management and
control of KSS Global BV in view of what is stated
above and KSS Petron which is a 100% subsidiary of
KSS Global BV is also under management and control
of LN Mittal. KSS Petron has a NPA for more than one
year and consequently, LN Mittal being a promoter/in
control of KSS Global BV/KSS Petron Pvt. Ltd., is a
connected person whose account is classified non-
performing. Consequently, AM India shall not be
eligible to submit a resolution plan.
25. From a bare reading of section 29A(c) it is very
clear that a person shall not be eligible to submit a
resolution plan, if such person, or any other person
acting jointly or in concert with such person; has an
account, or an account of a corporate debtor under the
management or control of such person or whom such
person is a promoter, classified as non-performing
asset in accordance with the guidelines of the Reserve
Bank of India issued under the Banking Regulation Act,
1949 (10 of 1949) and at least a period of one year has
lapsed from the date of such classification till the date
of commencement of the corporate insolvency
resolution process of the corporate debtor,
PROVIDED that the person shall be eligible to submit
a resolution plan if such person makes payment of all
overdue amounts with interest thereon and charges
relating to non-performing asset accounts before
submission of resolution plan.
Section 29A does not distinguish between positive and
negative control. Any person who is either promoter or
in the management or in the control of the business of
the corporate debtor and in default is ineligible. Person
connected to ArcelorMittal India Pvt. Ltd., who are
either promoter or in the management with KSS Petron
and Uttam Galva Steels Ltd., are ineligible. Mere sale
of shares and declassification as promoter after the
companies have gone into default cannot be absolved
them responsibility. In order to become eligible,
overdue amounts to lenders in both the cases of KSS
Petron and Uttam Galva Steels Ltd., should be paid by
ArcelorMittal before being eligible to bid, as provided in
12
Section 29A itself.”
8.Having said this, it then remanded the matter to the
Committee of Creditors as follows:-
“27. Further, we are of the view that RP ought to have
produced both the resolution plan before the CoC,
along with his comments of eligibility of both the
resolution applicants for consideration of the CoC and
to follow the provision of section 29A(c) read with
section 30(4) for the purpose of affording the
opportunity to the resolution applicants before
declaring them ineligible. In our view, such procedure
has not been followed hence, it vitiate the proceeding
of the CoC and hence the present matter can be
remanded back to the RP and CoC on this ground
alone for their reconsideration.”
9.Appeals were filed by both Numetal and AMIPL, on
26.4.2018 and 27.4.2018 respectively, before the Appellate
Authority, being the NCLAT. Before these appeals could be
decided, in compliance with the order passed by the Adjudicating
Authority, the Committee of Creditors, after hearing both AMIPL
and Numetal, disqualified AMIPL by an order dated 8.5.2018 as
follows:
“48. In wrapping up this post-decisional hearing, we
reiterate that AMIL is an ineligible resolution applicant
under Section 29A(c) of the IBC, who acting in concert
with AMBV (the promoter of Uttam Galva on insolvency
commencement date and connected person of AMIL)
and Arcelor Mittal Group in attempting to avoid their
obligations to make payment as provided under
Section 29A(c) of mc (sic) with reference to Uttam
Galva and KSS Petron. Their unwillingness to make
13
payment in the Uttam Galva matter or the KSS Petron
matter by their actions of 7
th
of February, 2018 and 9
th
of February, 2018 as stated above is an avoidance
device.
49. In case of Uttam Galva, AMBV arranged the sale of
its shareholding at a nominal value just days prior to
the date of submission of the Resolution Plan is
evidence of the fact that AMIL is in concert with AMBV
such action is a manifestation of the passage of
Section 29A under IBC. As promoter of Uttam Galva
and as member of the Arcelor Mittal Group referred
above, they should have made payment of the
Overdue Amounts to the lenders of Uttam Galva.
50. The same conduct of Arcelor Mittal Group acting
through Fraselli and KSS Global in terminating the
shareholders agreement in KSS Global, the holding
company of KSS Petron, a device has been to avoid
payment of the Overdue Amounts of KSS Petron
before filing the Resolution Plan for ESIL. The close
proximity of this action on 9
th
February, 2018, one day
before the plan submission date is a telling act of
avoidance.
51. Since the CoC have not by themselves filed an
appeal over the Ld. Adjudicating Authority’s order
dated 19
th
April, 2018, the concession granted by the
Ld. Adjudicating Authority to give an opportunity to cure
the ineligibility, we are indicating to AMIL, its connected
persona and persons in concert to cure their disability
under Section 29A(c) of IBC by making a payment to
the lenders of Uttam Galva for Overdue Amounts of
Uttam Galva, another payment to the lenders of KSS
Petron constituting Overdue Amounts in KSS Petron
and Overdue Amounts of such other companies which
are classified as NPAs and where Arcelor Mittal Group
is a promoter. Such payments will have to be made by
AMIL or its constituents / connected persons no later
than 15
th
May, 2018, especially since the law actually
requires that this curative payment of overdue
amounts, interests and charges should be made by the
corporate resolution intending applicant / resolution
applicant before the Resolution Plan is filed. This
concession by the CoC is without prejudice to the
CoC’s right to strictly enforce the law and provisions of
14
Section 29A(c) of the IBC. The proof of such payment
in form of a No Overdue Amounts letter (indicative
format set out in Annex) shall be submitted to the RP
(with notification to the CoC) by 6:00 P.M. IST on 15
th
May 2018. As we have limited time available under the
CIR process of ESIL, AMIL is requested to adhere to
these timelines.”
10.By another order of the same date, the Committee of
Creditors disqualified Numetal as follows:
“44. Numetal and AEL are related as an associate
company, on account of the fact that AEL (alias
Rewant Ruia) has significant influence over Numetal
pursuant to its control of at least 20% of the total voting
power of Numetal. Since an associate company is
considered as a related party to a resolution applicant
where such resolution applicant and other persons are
acting jointly or in concert, Numetal is clearly said to be
acting jointly and in concert with AEL. This in turn
means Numetal is acting in concert with Mr. Rewant
Ruia and hence with Mr. Ravi Ruia, the promoter and
guarantor of ESIL (a non-performing asset since 2016).
This inflicts a disability and ineligibility upon Numetal /
its consortium and constituent shareholders.”
xxx xxx xxx
57. Thus in wrapping up the post decisional hearing,
we reiterate that Numetal is an ineligible resolution
applicant acting in concert with Rewant Ruia and his
connected person namely his relative / father Ravi
Ruia, who is a promoter of a corporate debtor ESIL,
which has a non-performing asset account.
58. Since the CoC have not by themselves filed an
appeal over the Ld. Adjudicating Authority’s Order
dated 19
th
April, 2018, the concession granted by the
Ld. Adjudicating Authority to give an opportunity to cure
the ineligibility, we are indicating to the resolution
applicant, i.e. Numetal and the consortium of Crinium
Bay, Indo, TPE and AEL as persons acting in concert
with Numetal, that they would be eligible only if they
15
make payment of (i) the Overdue Amounts constituting
NPA in ESIL as on 30
th
April, 2018 aggregating to Rs.
37,558.65 crores in principal and interest and Rs.
1,688.27 crores in penal interest and other charges
and such other additional Overdue Amounts which
have accrued till the date of payment; and (ii) the
Overdue Amounts of such other companies which are
classified as NPAs and where Mr. Ravi Ruia / Mr.
Rewant Ruia are promoters. Such payments will have
to be made by Numetal or its constituents / consortium
no later than 15
th
May, 2018, especially since the law
actually requires that this curative payment should be
made before the resolution plan is filed. This
concession is without prejudice to the CoC’s right to
strictly enforce the law and the provisions of Sections
29A(c) and 29A(h) of IBC. The proof of such payment
in form of a no-Overdues Amounts letter (indicative
format set out in Annex 3) shall be submitted to the RP
(with notification to CoC) by 6:00 P.M. IST on 15
th
May
2018, As we have limited time available under the CIR
process of ESIL, Numetal is requested to adhere to
these timelines.”
11.In the appeals that were filed before it, the Appellate
Authority, insofar as Numetal’s Resolution plan was concerned,
vide an order dated 7.9.2018 held as follows:-
“44. On behalf of ‘AM India Ltd.’, it was submitted that
‘VTB Bank’ one of the shareholders of ‘Numetal Ltd.’ is
ineligible in view of Article 5(c) of the EU Regulations
of 2014. Though such submission has been made, no
order or evidence has been placed on record to
suggest that any order of prohibition was imposed by
the European Union against the ‘VTB Bank’. Neither
the date of order nor order passed by any competent
authority or court of law has been placed on record.
45. On the other hand, it will be evident that Council of
European Union adopted Council Regulation (EU) No.
833/2014 concerning Restricting measures in view of
Russia action. In fact, in view of situation in Ukraine,
the European Union Regulation was adopted. Apart
16
from the aforesaid fact, that ‘AM India Ltd.’ has not
brought on record any penal order passed by any court
of law relating to disability, if any, which is
corresponding to any of the disability shown in clauses
(a) to (h) of Section 29A. Therefore, the stand taken by
the ‘AM India Ltd.’ with regard to ineligibility of ‘VTB
Bank’ is fit to be rejected.
xxx xxx xxx
Resolution Plan submitted by the ‘Numetal Ltd.’ on
12
th
February, 2018
60. As on 12
th
February, 2018, when the 1
st
Resolution
Plan was submitted by ‘Numetal Ltd.’, it had four
shareholders.
(i) ‘Crinium Bay’: 40%
(ii) ‘Indo’ : 25.1%
(iii) ‘TPE’ : 9.9%
(iv) ‘AEL’ : 25%
61. Admittedly, Mr. Rewant is 100% shareholder of
‘AEL’ and ‘AEL’ held 25% in ‘Numetal Ltd.’ even as on
12
th
February, 2018, Mr. Rewant being son of Mr. Ravi,
who is the promoter of the ‘Corporate Debtor’, we hold
that ‘AEL’ is a related party and comes within the
meaning of ‘person in concert’ in terms of Regulation
2(1)(q).
62. In view of the aforesaid findings, we hold that at the
time of submission of 1
st
Resolution Plan by ‘Numetal
Ltd.’, one of the shareholders being ‘AEL’, ‘Numetal
Ltd.’ was not eligible to submit ‘Resolution Plan’ in
terms of Section 29A.
Position of ‘Numetal Ltd.’ as on 29
th
March, 2018
when the subsequent ‘Resolution Plan’ was
submitted by ‘Numetal Ltd.’.
63. The ‘Committee of Creditors’ had extended the
period for submitted a fresh ‘Resolution Plan’ by 2
nd
April, 2018. ‘Numetal Ltd.’ filed fresh ‘Resolution Plan’
on 29
th
March, 2018. On the said date the ‘Numetal
Ltd.’ consisted of the three shareholders: -
(a) ‘Crinium Bay’ (‘VTB’): 40%
(b) ‘Indo’: 34.1%
(c) ‘TPE’: 25.9%
17
64. As on 29
th
March, 2018, as the ‘AEL’ was not the
shareholder of ‘Numetal Ltd.’ and all the three
shareholders aforesaid being eligible, we hold that
‘Numetal Ltd.’ in respect of the ‘Resolution Plan’ dated
29
th
March, 2018, is eligible and the provision of
Section 29A, as on 29
th
March, 2018 is not attracted to
the ‘Numetal Ltd.’. For the reasons aforesaid, we are of
the view that the ‘Resolution Plan’ submitted by
‘Numetal Ltd.’ on 29
th
March, 2018 is required to be
considered by the ‘Committee of Creditors’ to find out
its viability, feasibility and financial matrix.”
12.In the same order, insofar as AMIPL’s resolution plan was
concerned, the Appellate Authority held as follows:
“107. In the present case, the ‘Expression of Interest’
was submitted by ‘AM India Ltd.’ on 11th October,
2017 and by ‘Numetal Ltd.’ on 20
th
October, 2017, both
prior to 23rd November, 2017 i.e. the date Section 29A
was inserted by the Insolvency and Bankruptcy Code
(Amendment) Ordinance, 2017 but the ‘Resolution
Plans’ were submitted by both ‘AM India Ltd.’ and
‘Numetal Ltd.’ on 12th February, 2018.
108. The question arises for consideration is as to what
will be the position if, on the basis of ‘Information
Memorandum’ the ‘Expression of Interest’ is submitted
by the ‘Resolution Applicants’ prior to 23
rd
November,
2017 and whether they are eligible to take advantage
of 2
nd
proviso to sub-section (4) of Section 30.?
109. Section 29A came into force on 23rd November,
2017. Those who submitted ‘Resolution Plan’ prior to
the said date and if covered by clause (c) of Section
29A are entitled to derive benefit of second proviso to
sub-section (4) of Section 30. Under ‘I&B Code’ there
is no provision to submit ‘Expression of Interest’ prior
to ‘Resolution Plan’. What we find from the invitation
seeking ‘Expression of Interest’ to submit a ‘Resolution
Plan’ for ‘Essar Steel Limited’ published on 6th
October, 2017 is the first stage of ‘Resolution Plan’.
Therefore, we hold that ‘Expression of Interest’ is part
of the ‘Resolution Plan’, which follows the ‘Resolution
Plan’. In such case, the date of submission of the
18
‘Expression of Interest’ should be treated to be the
date of submission of the ‘Resolution Plan’. In this
background, we hold that the date of submissions of
the 1st ‘Resolution Plan(s)’ of ‘AM India Ltd.’ and
‘Numetal Ltd.’ will be deemed to be 11th October,
2017/12th February, 2018 and 20th October, 2017/12th
February, 2018 respectively.
110. If the aforesaid proposition is not accepted, it will
deprive the ‘Resolution Applicants’ from deriving
advantage of second proviso to sub-section (4) of
Section 30 inserted on 23rd November, 2017, even
though they acted to submit the ‘Resolution Plan’ by
submitting the ‘Expression of Interest’ of ‘Resolution
Plan’.
111. In view of the aforesaid finding, we hold that the
Adjudicating Authority rightly held that the Appellant-
‘AM India Ltd.’ should have been given the opportunity
by the ‘Committee of Creditors’ in terms of second
proviso to sub-section (4) of Section 30.
112. The question arises for consideration is whether
the ‘AM Netherlands’ is eligible, having transferred its
entire shareholding of ‘Uttam Galva’ on 7th February,
2018 and by transferring of its entire shareholding of
‘Fraseli’ in ‘KSS Global’ on 9th February, 2018 i.e. two
to four days prior to the submission of ‘Expression of
Interest’ (first phase of ‘Resolution Plan’).
113. Proviso to clause (c) of Section 29A reads as
follows:
“Provided that the person shall be eligible to submit a
resolution plan if such person makes payment of all
overdue amounts with interest thereon and charges
relating to non-performing asset accounts before
submission of resolution plan”
114. The aforesaid proviso to clause (c) makes it clear
that the person shall be eligible to submit a ‘Resolution
Plan’ if such person makes payment of all overdue
amounts with interest thereon and charges relating to
non-performing asset accounts before submission of
‘Resolution Plan’. It does not stipulate any other mode
to become eligible and thereby does not prescribe any
other mode to become ineligible, including by selling
the shares thereby existing as a member of the
19
Company whose account has been classified as non-
performing asset accounts in accordance with the
guidelines of the Reserve Bank of India.
115. Second proviso to sub-section (4) of Section 30
also stipulates, as follows:
“30. Submission of resolution plan.─
(4) xxx xxx xxx
Provided further that where the resolution applicant
referred to in the first proviso is ineligible under clause
(c) of section 29A, the resolution applicant shall be
allowed by the committee of creditors such period, not
exceeding thirty days, to make payment of overdue
amounts in accordance with the proviso to clause (c)
of section 29A”
116. From both the aforesaid provisions, it is clear that
except in the manner the ‘Resolution Applicants’ can
make it eligible and get rid of ineligibility under clause
(c) of Section 29A that is by making payment of all
overdue amounts in accordance with the proviso to
clause (c) of Section 29A, no other manner a person,
who is otherwise ineligible under clause (c) of Section
29A, can become eligible. There is no provision in the
‘I&B Code’ which permits an ineligible person to
become eligible by selling or transferring its shares of
the Company whose accounts have been declared as
NPA in accordance with the guidelines of Reserve
Bank of India.
117. Admittedly, ‘AM Netherlands’ is related party of
‘AM India Ltd.’. ‘AM Netherlands’ was the promoter of
‘Uttam Galva’ on the date when the ‘Uttam Galva’
classified as NPA in accordance with the guidelines of
Reserve Bank of India and a period of one year has
elapsed from the date of such classification, at the time
of commencement of ‘Corporate Insolvency Resolution
Process’ of the ‘Corporate Debtor’.
118. Once the stigma of “classification of the account
as NPA” has been labelled on the promoter of the
‘Uttam Galva’, even after sale of shares by ‘AM
Netherlands’ it may ceased to be a member or
promoter of the ‘Uttam Galva’, but stigma as was
attached with it will continue for the purpose of
20
ineligibility under clause (c) of Section 29A, till payment
of all overdue amount with interest and charges
relating to NPA account of the ‘Uttam Galva’ is paid.
119. ‘AM Netherlands’ is 100% subsidiary of ‘AMSA’
which is a listed company incorporated in Luxemburg.
‘AM India Ltd.’ is also a subsidiary of ‘AMSA’ having
99.99% shareholding in it. Accordingly, ‘AMSA’ is also
a promoter, in the management and in control of ‘AM
India Ltd.’. ‘Fraseli’ is a company owned and controlled
by a company called by ‘Mittal Investments’ acquired
about one third of the share capital of ‘KSS Global BV’.
Pursuant to such acquisition, ‘Fraseli’ acquired control
over ‘KSS Global BV’ which in turn controls ‘KSS
Petron’ and ‘Petron Engineering’. ‘Mittal Investments’ is
owned and controlled by LN Mittal Group, the
promoters of the ‘AM India Pvt. Ltd’.
120. ‘AM India Ltd.’ divested its shareholding in ‘KSS
Global BV’ which is 100% owner of ‘KSS Petron’ (a
Company whose account has been declared as NPA).
‘AM India Ltd.’ has its control over it will be evident
from the fact that it has nominee Directors, who also
resigned on 9
th
February, 2018 i.e. 3 days before
submission of the ‘Expression of Interest’ of
‘Resolution Plan’ by ‘AM India Ltd.’ This will be also
clear from the fact that the ‘AM India Ltd.’ was nothing
that an entity controlling and managing in ‘KSS Global
BV’ (which is 100% owner of ‘KSS Petron’ an NPA
Company) divested its shareholding in ‘KSS Global BV’
on 9th February, 2018 i.e. 3 days before submission of
the ‘Expression of Interest’ of ‘Resolution Plan’.
121. We have also noticed that consequent to such
acquisition of control by ‘Fraseli’, on 23rd May, 2011 a
public announcement was made under ‘SEBI
(Substantial Acquisition of Shares and Takeover)
Regulations, 1997’ for the acquisition of shares of
‘Petron Engineering’ inter alia by ‘KSS Global BV’ and
‘Fraseli’. Therefore, we hold that Mr. L.N. Mittal Group,
a connected person of ‘AM India Ltd.’ being the
promoter and in the control and management of ‘KSS
Petron’ since 2011 and ‘KSS Petron’ having classified
as ‘NPA’ by multiple banks, the stigma attached to it
cannot be cleared by ‘KSS Global’ by divesting its
shares in ‘KSS Petron’ on 9th February, 2018 and the
21
stigma will continue for the purpose of ineligibility
under clause (c) Section 29A, till the payment of all
overdue amount with interest thereon and charges
relating to NPA account of ‘KSS Petron’.
122. Admittedly, there are three nominee Directors of
‘AM India Ltd.’ in ‘KSS Petron’, one of the NPA
Company. The nominee Directors of the Appellant- ‘AM
India Ltd.’ had also resigned on 9th February, 2018 i.e.
three days’ before the submission of the ‘Resolution
Plan’. Therefore, it is clear that the ‘AM India Ltd.’ had
complete control over the ‘KSS Petron’.
123. It is informed that after impugned order passed by
the Adjudicating Authority, the ‘AM India Ltd.’ had made
conditional deposit of Rs. 7,000 Crores in its own
current account (Escrow Account). Such depositation
of the amount in its own Escrow Account does not
qualify as a payment of overdue amounts in terms of
proviso to clause (c) of Section 29A. A conditional offer
to pay the over dues amount cannot be accepted till it
is complied in the light of proviso to clause (c) of
Section 29A unconditionally.
124. Dr. Abhishek Manu Singhvi, learned Senior
Counsel appearing on behalf of ‘AM India Ltd.’ when
asked, on instruction, submitted that if this Appellate
Tribunal accept the ‘Resolution Plan’ submitted by the
‘AM India Ltd.’, it may deposit the non-performing
assets amount with interest in the respective accounts
which were declared as NPA in accordance with the
guidelines of the Reserve Bank of India.
125. As we hold that ‘AM India Ltd.’ is also entitled to
the benefit of second proviso to sub-section (4) of
Section 30, we give one opportunity to the ‘Resolution
Applicant’- ‘AM India Ltd.’ to make payment of all
overdue amount with interest thereon and charges
relating to Non Performing Accounts of both the ‘Uttam
Galva’ and the ‘KSS Petron’ in their respective
accounts within three days i.e. by 11th September,
2018. If such amount is deposited in the accounts of
both Non-Performing Accounts of ‘Uttam Galva’ and
‘KSS Petron’ within time aforesaid and is informed, the
‘Committee of Creditors’ will consider the ‘Resolution
Plan’ submitted by ‘AM India Ltd.’ along with other
22
‘Resolution Plans’, including the ‘Resolution Plan’
submitted by the ‘Numetal Ltd.’ on 29th March, 2018,
and if so necessary, may negotiate with the ‘Resolution
Applicant(s)’. An early decision should be taken by the
‘Committee of Creditors’ and on approval of the
‘Resolution Plan’, the ‘Resolution Professional’ will
place the same immediately before the Adjudicating
Authority who in its turn will pass order under Section
31 in accordance with law. The ‘Successful Resolution
Applicant’ will take steps for execution of its ‘Resolution
Plan’ and deposit the upfront money if proposed, in
terms of the ‘Resolution Plan’.
126. Taking into consideration the fact that a long
period has taken due to pendency of the case before
the Adjudicating Authority and thereafter, before this
Appellate Tribunal, we direct the Adjudicating Authority
to exclude the period the appeal was pending before
this Appellate Tribunal i.e. from 26th April, 2018 till
today (7th September, 2018) for the purpose of
counting the total period of 270 days. The impugned
order dated 19th April, 2018 passed by the
Adjudicating Authority so far as it relates to eligibility of
‘Numetal Ltd.’ as on the date of the submission of the
‘Resolution Plan’ dated 29th March, 2018 is set aside.
The impugned judgment/order in respect to ‘AM India
Ltd.’ is affirmed with conditions as mentioned in the
preceding paragraphs. All the appeals are disposed of
with aforesaid observations and directions. The parties
will bear their respective cost.”
13.This is how both AMIPL and Numetal are before us in
appeals from the Appellate Authority’s order dated 7.9.2018.
14. Shri Harish N. Salve, learned Senior Advocate appearing on
behalf of AMIPL, argued that Section 29A, as originally enacted,
disqualified a person who has an account of a corporate debtor
under the management or control of such person, or of whom such
23
person is a promoter, which account was declared as a non-
performing asset. The further condition is that one year should
have elapsed from the date of such declaration till the date of
commencement of the corporate insolvency resolution process of
the corporate debtor. Thus, a plain reading of the same
establishes that the ineligibility under Section 29A is in relation to
the submission of a resolution plan, which must consist of the
elements set out in Section 30. Responding to preliminary
enquiries, i.e., an expression of interest, is not the subject matter
of a resolution plan, and therefore, the relevant time is the time of
submission of a resolution plan. He further argued that the
amendment made to Section 29A in June, 2018, expressly stating
that the relevant time was the time of submission of a resolution
plan, is clarificatory in nature. Once this becomes clear,
everything on facts falls into place. According to the learned
Senior Advocate, AMIPL is an indirect subsidiary of one
‘ArcelorMittal Societe Anonyme’ (hereinafter referred to as
“AMSA”), which is a listed company in Luxemburg. AMSA holds
100% shares in one ‘ArcelorMittal Belvel & Differdange Societe
Anonyme’ (hereinafter referred to as “AMBD”), a company
incorporated in Luxemburg, which in turn holds 100% in one
‘Oakey Holding BV’, a company incorporated in the Netherlands,
24
which in turn holds 99.99% shares in AMIPL. ArcelorMittal
Netherlands BV (hereinafter referred to as “AMNLBV”), which is a
member of the L.N. Mittal Group incorporated in the Netherlands,
is 100% held by AMSA (the Chairman and CEO of AMSA being
Shri L.N. Mittal). AMNLBV held 29.05% in one ‘Uttam Galva Steels
Limited’ (hereinafter referred to as “Uttam Galva”) which is an
Indian company, listed in India. Uttam Galva was declared as a
non-performing asset on 31.3.2016, with a debt of around Rs.
6000 crores. According to Shri Salve, Uttam Galva, though it
entered into a Co-Promotion Agreement with AMNLBV on
4.9.2009, was really promoted by the Miglani Group of
businessmen who are Indian citizens residing in Mumbai. The Co-
Promotion Agreement conferred on AMNLBV the right to appoint
50% of the non-independent directors on the board, as well as
certain affirmative voting rights. This required that the Articles of
Association be amended, which was never in fact done. In 2015
itself, AMNLBV had written off the investment in Uttam Galva from
its books, seeking an exit from Uttam Galva at this time. AMNLBV
never appointed any director or exercised any voting rights in
Uttam Galva. What is important to note is that it had transferred its
entire shareholding in Uttam Galva on 7.2.2018 to one ‘Sainath
Trading Company Private Limited’, which was a Miglani Group
25
Company, for Re.1 per share (having purchased the shares at
Rs.120 per share). The depository participant account of AMNLBV
ceased to show the said shares with effect from 7.2.2018. The
Co-Promotion Agreement dated 4.9.2009, pursuant to which the
status of “promoter” had been conferred on AMNLBV, stood
automatically terminated vide clause 21.6 thereof on 7.2.2018. In
order to put the matter beyond any doubt, the parties also
executed a Co-Promotion Termination Agreement on 7.2.2018.
On 8.2.2018, Uttam Galva filed the necessary forms with the
Registrar of Companies and made the necessary disclosures with
the National Stock Exchange and Bombay Stock Exchange to
declassify AMNLBV as a promoter of Uttam Galva. This was
accordingly done on 21.3.2018 and 23.3.2018 before the NSE and
BSE respectively. Such declassification, being a ministerial act, is
relatable to the date of sale of shares, i.e., 7.2.2009, and
considered effective from the said date. Inasmuch as AMNLBV
therefore ceased to be a promoter in Uttam Galva prior to
12.2.2018, the resolution plan is not hit by Section 29A(c).
Similarly, according to the learned Senior Advocate, insofar as
KSS Petron Private Limited (hereinafter referred to as “KSS
Petron”) is concerned, it is an admitted case that ‘Fraseli
Investments Sarl’ (hereinafter referred to as “Fraseli”) is a
26
company owned and controlled by one ‘Mittal Investments Sarl,’
which in turn is owned and controlled by the L.N. Mittal Group, the
promoters of AMIPL. Fraseli held 32.22% in one ‘KazStroy
Service Global BV’ (hereinafter referred to as “KSS Global”), a
company incorporated in the Netherlands which in turn held 100%
of KSS Petron, an Indian company. The shareholders agreement
entered into between Fraseli and KSS Global permitted Fraseli to
appoint two out of six nominee directors in KSS Global, and
provided for an affirmative vote of shareholders with respect to
certain matters. According to the learned Senior Advocate, if the
definition of “control” in Section 2(27) of the Companies Act, 2013
is applied, the relationship of KSS Global with KSS Petron would
not constitute “control” over the wholly owned subsidiary in India.
In any case, the entire shareholding of Fraseli in KSS Global was
transferred back to the promoters of KSS Global on 9.2.2018, i.e.,
3 days before submission of the resolution plan. KSS Petron has
been classified as a non-performing asset by multiple banks, and
the corporate insolvency resolution process was initiated against it
on 1.8.2017 before the NCLT. It may be added that KSS Petron
was declared a non-performing asset on 30.9.2015 with a debt of
around Rs. 1000 crores. The learned Senior Advocate therefore
attacked the finding of the Appellate Authority on this score, and
27
stated that, as Section 29A was not attracted, the question of
paying off the debts of Uttam Galva and KSS Petron would not
arise.
15.When it came to Numetal’s resolution plan, the learned
Senior Advocate argued that it is important to remember that
Numetal was incorporated on 13.10.2017 by Shri Rewant Ruia,
son of Shri Ravi Ruia (who was a promoter of the corporate debtor
of ESIL), with the specific objective of trying to acquire ESIL. At
the time of its incorporation, one ‘Aurora Enterprises Limited’
(hereinafter referred to as “AEL”), a Ruia Group Company, held
100% shareholding of Numetal. In turn AEL’s 100% shareholding
was held by one ‘Aurora Holdings Limited’ (hereinafter referred to
as “AHL”), 100% of whose shareholding was held by Shri Rewant
Ruia, who was a former director of the corporate debtor, i.e. ESIL.
On 18.10.2017, a few weeks before Section 29A was introduced,
AEL transferred 26.1% of its shares in Numetal to one ‘Essar
Communications Limited’ (hereinafter referred to as “ECL”), a
group company of the corporate debtor. On 19.10.2017 Shri
Rewant Ruia settled an irrevocable discretionary trust, called the
‘Crescent Trust’, which purchased the shares of AHL at par value.
On 20.10.2017, when Numetal submitted its expression of interest,
it had two share holders, i.e., AEL (holding 73.9%) and ECL
28
(holding 26.1%). On 22.11.2017, when the Finance Minister made
a statement that the Code would be amended in order to prevent
unscrupulous persons from submitting resolution plans, AEL
transferred 13.9% of its shareholding in Numetal, and ECL its
entire 26.1% shareholding, to one ‘Crinium Bay Holdings Limited’
(hereinafter referred to as “Crinium Bay”), a 100% indirectly held
subsidiary of one ‘VTB Bank’, which in turn was a Russian
company, the majority of whose shares were held by the Russian
Government. Crinium Bay thus became the owner of 40% of the
shareholding of Numetal. AEL subsequently transferred 25.1% of
the shareholding in Numetal to one ‘Indo International Trading
FZCO’ (hereinafter referred to as “Indo”), a Dubai company, and
9.9% of the shareholding to one ‘JSC VO Tyazhpromexport’
(hereinafter referred to as “TPE”), a Russian company. AEL was
left with only a 25% shareholding in Numetal. Even this holding in
Numetal was ultimately divested on 29.3.2018, so that Crinium
Bay held 40%, TPE held 25.9% and Indo held 34.1% in Numetal,
with AEL’s holding becoming ‘Nil’. Shri Salve has argued that
Numetal is hit by Section 29A(i) of the Code, as VTB Bank, the
parent of Crinium Bay, stands prohibited from accessing the
securities markets in the European Union pursuant to an order
dated 31.7.2004, and in the United States by two orders. This
29
being the case, Numetal is directly hit by sub-section (f) read with
sub-section (i) of Section 29A. It is also hit by Section 29A(j) as
Crinium Bay, being a subsidiary of VTB Bank, becomes a
“connected person” as defined under sub-clauses (i) and (iii) of
Explanation 1 to Section 29A(j). One very important fact that was
stressed by him was that an amount of Rs. 500 crores was given
by AEL to Numetal so that it could deposit the requisite earnest
money that had to be made along with the resolution plan
furnished by Numetal. This amount, that was admittedly furnished
by AEL, continues to remain with the Resolution Professional, and
has till date not been withdrawn by AEL, showing that Shri Rewant
Ruia continues to be vitally interested and linked with the
resolution plan of Numetal, even after the complete exit of AEL as
its shareholder. He therefore submitted that, given these facts,
whereas AMIPL should have been held eligible, it was wrongly
held to be ineligible by the Appellate Authority; and that Numetal,
being clearly hit by several provisions of Section 29A, was wrongly
held to be eligible. He stressed the fact that one of the core
objectives of Section 29A was to ensure that the promoter of the
corporate debtor should not through or by circular means come
back in order to regain the company that he himself had run to the
ground. For this purpose, he relied upon the Finance Minister’s
30
statement on 29.12.2017, while introducing the Bill to amend the
Code by introducing Section 29A, together with the Statements of
Objects and Reasons appended to the said Bill.
16.Dr. A.M. Singhvi, learned Senior Advocate, supported the
arguments of Shri Salve. According to him, Section 29A(c) always
had the application of the resolution plan date as the relevant date,
given the in praesenti “has” which is also there in clauses (h) and
(j), and is similar to the expression “is” which is to be found in
clauses (a), (b), (e) and (f), as contrasted with the expression “has
been” used in clauses (d) and (g), of Section 29A. According to
him, the amendment made in 2018 is in any case clarificatory in
nature. He supported the attack of Shri Salve on the Appellate
Authority’s judgment, stating that so far as Uttam Galva is
concerned, it is well established that the sale of shares is complete
once they move out of the demat account of the seller, which in
this case took place five days before 12.2.2008. For this he cited
certain judgments. He also supported Shri Salve’s argument by
stating that Numetal is clearly disqualified under several clauses of
Section 29A.
17.On the other hand, Shri Mukul Rohatgi, learned Senior
Advocate, appearing on behalf of Numetal, stated that Numetal
31
was a company which was therefore a separate person in law from
its shareholders. He contended that on the date of submission of
the resolution plan (i.e., 12.2.2018), AEL held only 25%, which
would be below the figure of 26% mentioned in the request for
proposal dated 24.12.2017, wherein “control” has been defined as
a person holding more than 26% of the voting share capital in the
company. According to him, in any case by 2.4.2018, when it
submitted a fresh resolution plan, AEL had walked out completely,
leaving behind two Russian companies holding 40% and 25.9%
respectively of Numetal, and Indo, a Dubai Company, holding
34.1%. According to the learned Senior Advocate, Numetal cannot
possibly be described as a joint venture of its shareholders, and
for this purpose he cited some of our judgments. According to
him, a joint venture is a contractual arrangement whereby two or
more parties undertake an economic activity which is subject to
joint control, which is missing in the present case as a shareholder
in a company is distinct from the company itself. He added that
Section 29A(c) requires that Numetal as a person, together with
any other person acting jointly or in concert, has to have an
account of a corporate debtor under its management or control, or
of whom such person is a promoter (which is classified as a non-
performing asset for a period of at least one year before the date
32
of commencement of the corporate insolvency resolution process
of the corporate debtor). According to the learned Senior
Advocate, Shri Rewant Ruia would not fall within any of these
categories, on a reading of Section 2(27) of the Companies Act,
2013, which defines “control”; Section 2(69) of the Companies Act,
2013, which defines “promoter”; and Sections 2(53) and 2(54) of
the Companies Act, 2013, which define “manager” and “managing
director” respectively. He emphatically argued that though Shri
Rewant Ruia is the son of Shri Ravi Ruia, who is a promoter of the
corporate debtor, and though he may be deemed to be a “person
acting in concert” within the definition contained in Regulation 2(1)
(q) of the SEBI (Substantial Acquisition of Shares and Takeovers)
Regulations, 2011 (hereinafter referred to as the “2011 Takeover
Regulations”), yet, he cannot be considered to be a “connected
person” under Section 29A(j) of the Code. This is for the reason
that under Explanation 1 to Section 29A(j), the expression
“connected person” can only mean a related party or a person who
is referred to in sub-clauses (i) and (ii) of Explanation 1, and since
Shri Rewant Ruia is neither a promoter of nor in the management
or control of the resolution applicant Numetal, he would fall outside
of sub-clause (iii) of Explanation 1. According to Shri Rohatgi, the
Appellate Authority was absolutely correct in saying that Numetal
33
would not be ineligible under Section 29A. He strongly attacked
Shri Salve’s argument that VTB Bank, the holding company of
Crinium Bay, was barred from accessing the securities market by
either the European Union or the United States. He took us to the
original orders and argued that the document of the European
Union, being Council Regulation 833 of 2014 dated 31.7.2014,
pursuant to Article 215 of the Treaty on the Functioning of the
European Union, was owing to restrictive measures taken in view
of Russia’s actions destabilizing the situation in Ukraine. Because
Russia had illegally annexed Crimea, political sanctions were
imposed by this document, which cannot possibly be said to be
sanctions imposed by an authority equivalent to SEBI in India.
The sanctions also did not relate in any manner to the securities
market. Equally, insofar as the two orders of the United States are
concerned, they were also political sanctions imposed against
Russian companies for the same reason by the Office of Foreign
Assets Control by a Presidential Order. He even argued that
insofar as the European Union is concerned, the corresponding
“authority” to SEBI is the ‘European Securities and Market
Authority’, whereas in the United States it would be the ‘Securities
Exchange Commission,’ neither of whom has issued any sanctions
which would interdict VTB Bank from accessing or trading in the
34
securities market. He also countered Shri Salve’s submission that
the Rs. 500 crores that was advanced by AEL and given as
earnest money for the resolution plan was not yet withdrawn,
contending that this was so because the validity of the first bid by
Numetal continues to be sub judice.
18.Shri Rohatgi then attacked AMIPL by stating that even a
literal reading of Section 29A(c) would make it clear that in the
case of Uttam Galva, AMNLBV, which is admittedly an L.N. Mittal
Group Company, was directly covered by sub-clause (c) as it had
been shown as a “promoter” in the annual reports of Uttam Galva,
and would therefore fit the definition of “promoter” contained in
Section 2(69) of the Companies Act, 2013. What is of great
importance, and what is in fact not disclosed, is that a Non-
Disposal Undertaking was issued to the State Bank of India, the
secured creditor of Uttam Galva, on 12.7.2011 by AMNLBV,
agreeing that it would not sell, transfer or dispose of any shares
held by it without the consent of the lenders of Uttam Galva.
According to Shri Rohatgi, therefore, the transfer of these shares,
the recognition of such transfer by Uttam Galva, and the
consequent application to the Stock Exchanges for declassification
as promoter, without obtaining the consent of the State Bank of
India, is invalid in law and a fraud played by AMNLBV. Further, in
35
the disclosures that were made under the 2011 Takeover
Regulations, the column relatable to the existence of any non-
disposal undertakings was left blank. In addition, since a sale of
shares between co-promoters inter se is exempted from the
requirement of making a public offer under Regulation 3(1) read
with Regulation 10(1)(a)(2) of the 2011 Takeover Regulations, it is
clear that on the one hand promoter status is claimed in order to
avail of the regulation, whereas, in the present case, it is argued
that, in substance, AMNLBV is not in fact a promoter. Equally,
leaving a blank in the form against the column which required
disclosure of non-disposal undertakings, is a fraud played on
SEBI, and on the shareholders of Uttam Galva; as otherwise, in
the public offer that would have had to be made, the shares of
Uttam Galva would have had to be purchased at the higher price
that is mentioned in the said Regulations. Incidentally, according
to Shri Rohatgi, in any case, getting out of Uttam Galva by paying
a price of Re.1 per share when the market value on that date was
Rs.19.50 per share is again a fraudulent transaction, which cannot
possibly pass muster under Section 29A. Further, insofar as KSS
Petron is concerned, it is clear that Fraseli’s holding of 32.22% in
KSS Global would certainly amount to de facto control, if not de
jure control, of KSS Petron, its wholly owned subsidiary, as defined
36
under Section 2(27) of the Companies Act, 2013. The transfer of
Fraseli’s shareholding on 9.2.2018, before submission of the
resolution plan on 12.2.2018, is again a dubious and fraudulent act
squarely hit by Section 29A. Shri Rohatgi further argued that Shri
Pramod Mittal, brother of Shri L.N. Mittal, is a connected person,
which would trigger Section 29A(j). Shri Pramod Mittal is a
promoter and director of one ‘Gontermann Piepers (India) Limited’,
which has also been declared an NPA, rendering Shri L.N. Mittal
ineligible under Section 29A(j). Equally, Shri L.N. Mittal, Shri
Pramod Mittal and other members of the Mittal family are
promoters of one ‘Ispat Profiles India Limited’. This company was
ordered to be wound up by the BIFR, appeals from which have
been dismissed by the AAIFR. Consequently, Shri L.N. Mittal, as a
related party of Shri Pramod Mittal, would render AMIPL ineligible
under sub-clause (c) read with sub-clause (j) of Section 29A of the
Code.
19.Shri Gopal Subramanium, learned Senior Advocate
appearing on behalf of the Committee of Creditors, has placed
before us the Insolvency and Bankruptcy Code (Amendment)
Ordinance, 2017, introducing Section 29A, and commented on the
difference between the opening lines of the said Ordinance as
compared with those of the Amendment Act of 2017. The
37
Amendment Act of 2017 brings in “persons acting in concert”.
According to the learned senior counsel, “persons acting in
concert” has been dealt with by the Justice P.N. Bhagwati
Committee Report on Takeovers, 1997, which he read out to us in
copious detail. He also referred to some of our judgments on
tearing the corporate veil, and on persons acting in concert.
According to him, there should be no interference by the
appropriate authority at the behest of a resolution applicant at the
stage of a Resolution Professional processing resolution
applications, and the subsequent stage of a Committee of
Creditors disapproving a resolution plan. According to him, the
period of 270 days is a watertight compartment, within which either
a resolution plan will be approved, or the corporate debtor be
wound up. According to him, the practice of interlocutory
applications being filed at anterior stages of the proceedings
before the Adjudicating Authority, and orders of remand to the
Committee of Creditors, should be stopped. However, the time
taken by the Adjudicating Authority and the Appellate Authority in
deciding disputes that may arise before them should be excluded
from the computation of 270 days as aforesaid. According to the
learned Senior Advocate, the expressions “persons acting in
concert” and “control” are broad enough to bring all associated
38
persons within the dragnet of Section 29A. He cited a number of
judgments on how this provision should be construed in
accordance with the object sought to be achieved by the said
provision, which should never be stultified or defeated, so as to get
to the real state of affairs of the facts of every given case.
Therefore, it is very important to remember that phrases such as
“persons acting in concert” and “control” are meant not only to
pierce the corporate veil, but also to get to the real persons who
present resolution plans. On the facts of each case, according to
Shri Subramanium, both resolution plans were correctly rejected
by the Resolution Professional and the Committee of Creditors, as
they were both hit by the provisions of Section 29A. Any circular
method, by which payment of debts of an NPA of a person acting
jointly or in concert under the proviso to Section 29A(c) is sought
to be avoided, should be interdicted. According to the learned
Senior Advocate, both resolution plans are hit by Section 29A(c),
and the only way out is for both resolution applicants to pay up the
debts of the respective NPAs of the corporate debtors who are
associated with them.
20.Shri K.V. Viswanathan, learned Senior Advocate, appearing
on behalf of the Resolution Professional, drew our attention to the
Insolvency and Bankruptcy Board of India (Insolvency Resolution
39
Process for Corporate Persons) Regulations, 2016 (hereinafter
referred to as the “CIRP Regulations”), and stated that the role of
the Resolution Professional is essentially to do a due diligence on
each resolution plan submitted before it. It is only after such due
diligence is done that this plan is to be forwarded to the Committee
of Creditors. According to him, even if it is found that the resolution
plan in question contravenes any law, such finding would only be a
tentative opinion formed by the Resolution Professional, who has
to submit the plan to the Committee of Creditors once it is
complete in all respects. According to him, a conjoint reading of
Section 25(2)(i) of the Code, read with Section 30(3) and the
second proviso to Section 30(4), would necessarily lead to this
conclusion. Also, according to the learned Senior Advocate, the
expression “control” contained in Section 29A(c) should be
construed noscitur a sociis with the word “management”, and so
construed, would only mean positive, de facto, control of such
person.
21.At this point, it is necessary to first set out Section 29A in its
various forms: as first introduced by the Insolvency and
Bankruptcy Code (Amendment) Ordinance, 2017 and the
Insolvency and Bankruptcy Code (Amendment) Act, 2017,
together with the amendment made by the Insolvency and
40
Bankruptcy Code (Second Amendment) Act, 2018. Section 29A,
as introduced by the Insolvency & Bankruptcy Code (Amendment)
Ordinance, 2017, on 23.11.2017, reads as follows:
“29A.A person shall not be eligible to submit a
resolution plan, if such person, or any other person
acting jointly with such person, or any person who is a
promoter or in the management or control of such
person,-
(a) is an undischarged insolvent;
(b) has been identified as a wilful defaulter in
accordance with the guidelines of the Reserve Bank of
India issued under the Banking Regulation Act, 1949
(10 of 1949);
(c) Whose account is classified as non-performing
asset in accordance with the guidelines of the Reserve
Bank of India issued under the Banking Regulation Act,
1949 (10 of 1949) and period of one year or more has
lapsed from the date of such classification and who
has failed to make the payment of all overdue amounts
with interest thereon and charges relating to non-
performing asset before submission of the resolution
plan;
(d) Has been convicted for any offence punishable with
imprisonment for two years or more; or
(e) Has been disqualified to act as a director under the
Companies Act, 2013 (18 of 2013);
(f) Has been prohibited by the Securities and
Exchange Board of India from trading in securities or
accessing the securities markets;
(g) Has indulged in preferential transaction or
undervalued transaction or fraudulent transaction in
respect of which an order has been made by the
Adjudicating Authority under this Code;
(h) Has executed an enforceable guarantee in favour
of a creditor, in respect of a corporate debtor under
insolvency resolution process or liquidation under this
Code;
41
(i) Where any connected person in respect of such
person meets any of the criteria specified in clauses
(a) to (h).
Explanation – For the purposes of this clause,
the expression “connected person” means-
(i) any person who is promoter or in the
management or control of the resolution
applicant; or
(ii) any person who shall be the promoter or in
management or control of the business of the
corporate debtor during the implementation of
the resolution plan; or
(iii) the holding company, subsidiary company,
associate company or related party of a person
referred to in clauses (i) and (ii)
(j)Has been subject to any disability, corresponding
to clauses (a) to (i), under any law in a jurisdiction
outside India.”
22.The Insolvency and Bankruptcy Code (Amendment) Act,
2017, received the assent of the President on 28.1.2018, but came
into force with retrospective effect from 23.11.2017. Section 29A,
as contained therein, reads as follows:
“29A. Persons not eligible to be resolution
applicant.
- A person shall not be eligible to submit a
resolution plan, if such person, or any other person
acting jointly or in concert with such person—
(a) is an undischarged insolvent;
(b) is a wilful defaulter in accordance with the
guidelines of the Reserve Bank of India issued under
the Banking Regulation Act, 1949 (10 of 1949);
(c) has an account, or an account of a corporate debtor
under the management or control of such person or of
whom such person is a promoter, classified as non-
performing asset in accordance with the guidelines of
the Reserve Bank of India issued under the Banking
Regulation Act, 1949 (10 of 1949) and at least a period
42
of one year has lapsed from the date of such
classification till the date of commencement of the
corporate insolvency resolution process of the
corporate debtor:
Provided that the person shall be eligible to submit a
resolution plan if such person makes payment of all
overdue amounts with interest thereon and charges
relating to non-performing asset accounts before
submission of resolution plan;
(d) has been convicted for any offence punishable with
imprisonment for two years or more;
(e) is disqualified to act as a director under the
Companies Act, 2013 (18 of 2013);
(f) is prohibited by the Securities and Exchange Board
of India from trading in securities or accessing the
securities markets;
(g) has been a promoter or in the management or
control of a corporate debtor in which a preferential
transaction, undervalued transaction, extortionate
credit transaction or fraudulent transaction has taken
place and in respect of which an order has been made
by the Adjudicating Authority under this Code;
(h) has executed an enforceable guarantee in favour of
a creditor in respect of a corporate debtor against
which an application for insolvency resolution made by
such creditor has been admitted under this Code;
(i) has been subject to any disability, corresponding to
clauses (a) to (h), under any law in a jurisdiction
outside India; or
(j) has a connected person not eligible under clauses
(a) to (i).
Explanation.— For the purposes of this clause, the
expression "connected person" means—
(i) any person who is the promoter or in the
management or control of the resolution
applicant; or
(ii) any person who shall be the promoter or in
management or control of the business of the
corporate debtor during the implementation of
43
the resolution plan; or
(iii) the holding company, subsidiary company,
associate company or related party of a person
referred to in clauses (i) and (ii):
Provided that nothing in clause (iii) of this
Explanation shall apply to—
(A) a scheduled bank; or
(B) an asset reconstruction company registered
with the Reserve Bank of India under section 3 of
the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security
Interest Act, 2002 (54 of 2002); or
(C) an Alternate Investment Fund registered with
the Securities and Exchange Board of India.”
23.Finally, the Insolvency and Bankruptcy Code (Second
Amendment) Act, 2018, received the assent of the President on
17.8.2018, but came into force with retrospective effect from
6.6.2018. The said amendment inter alia amended Section 29A,
which now reads as follows:
“29A. Persons not eligible to be resolution
applicant.—A person shall not be eligible to submit a
resolution plan, if such person, or any other person
acting jointly or in concert with such person—
(a) is an undischarged insolvent;
(b) is a wilful defaulter in accordance with the
guidelines of the Reserve Bank of India issued under
the Banking Regulation Act, 1949 (10 of 1949);
(c) at the time of submission of the resolution plan has
an account, or an account of a corporate debtor under
the management or control of such person or of whom
such person is a promoter, classified as non-
performing asset in accordance with the guidelines of
the Reserve Bank of India issued under the Banking
Regulation Act, 1949 (10 of 1949) or the guidelines of
44
a financial sector regulator issued under any other law
for the time being in force, and at least a period of one
year has lapsed from the date of such classification till
the date of commencement of the corporate insolvency
resolution process of the corporate debtor:
Provided that the person shall be eligible to submit a
resolution plan if such person makes payment of all
overdue amounts with interest thereon and charges
relating to non-performing asset accounts before
submission of resolution plan:
Provided further that nothing in this clause shall apply
to a resolution applicant where such applicant is a
financial entity and is not a related party to the
corporate debtor.
Explanation I.—For the purposes of this proviso, the
expression “related party” shall not include a financial
entity, regulated by a financial sector regulator, if it is a
financial creditor of the corporate debtor and is a
related party of the corporate debtor solely on account
of conversion or substitution of debt into equity shares
or instruments convertible into equity shares, prior to
the insolvency commencement date.
Explanation II.—For the purposes of this clause, where
a resolution applicant has an account, or an account of
a corporate debtor under the management or control of
such person or of whom such person is a promoter,
classified as non-performing asset and such account
was acquired pursuant to a prior resolution plan
approved under this Code, then, the provisions of this
clause shall not apply to such resolution applicant for a
period of three years from the date of approval of such
resolution plan by the Adjudicating Authority under this
Code;
(d) has been convicted for any offence punishable with
imprisonment—
(i) for two years or more under any Act specified
under the Twelfth Schedule; or
(ii) for seven years or more under any other law
for the time being in force:
Provided that this clause shall not apply to a person
after the expiry of a period of two years from the date
45
of his release from imprisonment:
Provided further that this clause shall not apply in
relation to a connected person referred to in clause (iii)
of Explanation I;
(e) is disqualified to act as a director under the
Companies Act, 2013 (18 of 2013):
Provided that this clause shall not apply in relation to a
connected person referred to in clause (iii) of
Explanation I;
(f) is prohibited by the Securities and Exchange Board
of India from trading in securities or accessing the
securities markets;
(g) has been a promoter or in the management or
control of a corporate debtor in which a preferential
transaction, undervalued transaction, extortionate
credit transaction or fraudulent transaction has taken
place and in respect of which an order has been made
by the Adjudicating Authority under this Code:
Provided that this clause shall not apply if a
preferential transaction, undervalued transaction,
extortionate credit transaction or fraudulent transaction
has taken place prior to the acquisition of the corporate
debtor by the resolution applicant pursuant to a
resolution plan approved under this Code or pursuant
to a scheme or plan approved by a financial sector
regulator or a court, and such resolution applicant has
not otherwise contributed to the preferential
transaction, undervalued transaction, extortionate
credit transaction or fraudulent transaction;
(h) has executed a guarantee in favour of a creditor in
respect of a corporate debtor against which an
application for insolvency resolution made by such
creditor has been admitted under this Code and such
guarantee has been invoked by the creditor and
remains unpaid in full or part;
(i) is subject to any disability, corresponding to clauses
(a) to (h), under any law in a jurisdiction outside India;
or
(j) has a connected person not eligible under clauses
(a) to (i).
46
Explanation I.—For the purposes of this clause, the
expression “connected person” means—
(i) any person who is the promoter or in the
management or control of the resolution
applicant; or
(ii) any person who shall be the promoter or in
management or control of the business of the
corporate debtor during the implementation of
the resolution plan; or
(iii) the holding company, subsidiary company,
associate company or related party of a person
referred to in clauses (i) and (ii):
Provided that nothing in clause (iii) of Explanation I
shall apply to a resolution applicant where such
applicant is a financial entity and is not a related party
of the corporate debtor:
Provided further that the expression “related party”
shall not include a financial entity, regulated by a
financial sector regulator, if it is a financial creditor of
the corporate debtor and is a related party of the
corporate debtor solely on account of conversion or
substitution of debt into equity shares or instruments
convertible into equity shares, prior to the insolvency
commencement date;
Explanation II.—For the purposes of this section,
“financial entity” shall mean the following entities which
meet such criteria or conditions as the Central
Government may, in consultation with the financial
sector regulator, notify in this behalf, namely—
(a) a scheduled bank;
(b) any entity regulated by a foreign central bank
or a securities market regulator or other financial
sector regulator of a jurisdiction outside India
which jurisdiction is compliant with the Financial
Action Task Force Standards and is a signatory
to the International Organisation of Securities
Commissions Multilateral Memorandum of
Understanding;
(c) any investment vehicle, registered foreign
institutional investor, registered foreign portfolio
47
investor or a foreign venture capital investor,
where the terms shall have the meaning
assigned to them in regulation 2 of the Foreign
Exchange Management (Transfer or Issue of
Security by a Person Resident Outside India)
Regulations, 2017 made under the Foreign
Exchange Management Act, 1999 (42 of 1999);
(d) an asset reconstruction company registered
with the Reserve Bank of India under Section 3
of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security
Interest Act, 2002 (54 of 2002);
(e) an Alternate Investment Fund registered with
the Securities and Exchange Board of India;
(f) such categories of persons as may be notified
by the Central Government.”
24. The Hon’ble Minister of Finance and Minister of Corporate
Affairs, Shri Arun Jaitley, while moving the Insolvency and
Bankruptcy Code (Amendment) Bill, 2017, stated on 29.12.2017:
“The core and soul of this new Ordinance is really
Clause 5, which is Section 29A of the original Bill. I
may just explain that once a company goes into the
resolution process, then applications would be invited
with regard to the potential resolution proposals as far
as the company is concerned or the enterprise is
concerned. Now a number of ineligibility clauses were
not there in the original Act and, therefore, Clause 29A
introduces those who are not eligible to apply. For
instance there is a clause with regard to an
undischarged insolvent who is not eligible to apply; a
person who has been disqualifies under the
Companies Act as a director cannot apply and a
person who is prohibited under the SEBI Act cannot
apply. So these are statutory disqualifications. And
there is also a disqualification in Clause (c) with regard
to those who are corporate debtors and who as on the
date of the application making a bid do not
operationalise the account by paying the interest itself
48
i.e. you cannot say that I have an NPA. I am not
making the account operational. The accounts will
continue to be NPAs and yet I am going to apply for
this. Effectively this clause will mean that those who
are in management and on account of whom this
insolvent or non-performing asset has arisen will now
try and say. I do not discharge any of the outstanding
debts in terms of making the accounts operational and
yet I would like to apply and set the enterprise back at
a discount value, for this is not the object of this
particular Act, So clause 5 has been brought in with
that purpose in mind.” (emphasis supplied)
25.The Statement of Objects and Reasons of the aforesaid Bill
lays down:
“2. The provisions for insolvency resolution and
liquidation of a corporate person in the Code did not
restrict or bar any person from submitting a resolution
plan or participating in the acquisition process of the
assets of the company at the time of liquidation.
Concerns have been raised that persons who, with
their misconduct contributed to defaults of companies
or are otherwise undesirable, may misuse this situation
due to lack of prohibition or restrictions to participate in
the resolution or liquidation process, and gain or regain
control of the corporate debtor. This may undermine
the processes laid down in the Code as the
unscrupulous person would be seen to be rewarded at
the expense of the creditors. In addition, in order to
check that the undesirable persons who may have
submitted their resolution plans in the absence of such
a provision, responsibility is also being entrusted on
the committee of creditors to give a reasonable period
to repay overdue amounts and become eligible.”
(emphasis supplied)
26.It is in this background that the section has to be construed.
In Ms. Eera Through Dr. Manjula Krippendorf v. State (Govt. of
49
NCT of Delhi) & Anr., (2017) 15 SCC 133, this Court, after
referring to the golden rule of literal construction, and its older
counterpart the “object rule” in Heydon’s case, referred to the
theory of creative interpretation as follows:-
“122. Instances of creative interpretation are when the
Court looks at both the literal language as well as the
purpose or object of the statute in order to better
determine what the words used by the draftsman of
legislation mean. In D.R. Venkatachalam v. Transport
Commr. [D.R. Venkatachalam v. Transport Commr.,
(1977) 2 SCC 273], an early instance of this is found in
the concurring judgment of Beg, J. The learned Judge
put it rather well when he said: (SCC p. 287, para 28)
“28. It is, however, becoming increasingly
fashionable to start with some theory of what is
basic to a provision or a chapter or in a statute or
even to our Constitution in order to interpret and
determine the meaning of a particular provision
or rule made to subserve an assumed “basic”
requirement. I think that this novel method of
construction puts, if I may say so, the cart before
the horse. It is apt to seriously mislead us unless
the tendency to use such a mode of construction
is checked or corrected by this Court. What is
basic for a section or a chapter in a statute is
provided: firstly, by the words used in the statute
itself; secondly, by the context in which a
provision occurs, or, in other words, by reading
the statute as a whole; thirdly, by the Preamble
which could supply the “key” to the meaning of
the statute in cases of uncertainty or doubt; and,
fourthly, where some further aid to construction
may still be needed to resolve an uncertainty, by
the legislative history which discloses the wider
context or perspective in which a provision was
made to meet a particular need or to satisfy a
particular purpose. The last mentioned method
consists of an application of the mischief rule laid
down in Heydon case [Heydon case, (1584) 3 Co
Rep 7a : 76 ER 637] long ago.”
50
xxx xxx xxx
127. It is thus clear on a reading of English, US,
Australian and our own Supreme Court judgments that
the “Lakshman Rekha” has in fact been extended to
move away from the strictly literal rule of interpretation
back to the rule of the old English case
of Heydon [Heydon case, (1584) 3 Co Rep 7a : 76 ER
637], where the Court must have recourse to the
purpose, object, text and context of a particular
provision before arriving at a judicial result. In fact, the
wheel has turned full circle. It started out by the rule as
stated in 1584 in Heydon case [Heydon case, (1584) 3
Co Rep 7a : 76 ER 637], which was then waylaid by
the literal interpretation rule laid down by the Privy
Council and the House of Lords in the mid-1800s, and
has come back to restate the rule somewhat in terms
of what was most felicitously put over 400 years ago
in Heydon case [Heydon case, (1584) 3 Co Rep 7a :
76 ER 637].”
27. A purposive interpretation of Section 29A, depending both on
the text and the context in which the provision was enacted, must,
therefore, inform our interpretation of the same. We are
concerned in the present matter with sub-clauses (c), (f), (i) and (j)
thereof.
28.It will be noticed that the opening lines of Section 29A
contained in the Ordinance of 2017 are different from the opening
lines of Section 29A as contained in the Amendment Act of 2017.
What is important to note is that the phrase “persons acting in
concert” is conspicuous by its absence in the Ordinance of 2017.
The concepts of “promoter”, “management” and “control” which
51
were contained in the opening lines of Section 29A under the
Ordinance have now been transferred to sub-clause (c) in the
Amendment Act of 2017. It is, therefore, important to note that the
Amendment Act of 2017 opens with language which is of wider
import than that contained in the Ordinance of 2017, evincing an
intention to rope in all persons who may be acting in concert with
the person submitting a resolution plan.
29.The opening lines of Section 29A of the Amendment Act refer
to a de facto as opposed to a de jure position of the persons
mentioned therein. This is a typical instance of a “see through
provision”, so that one is able to arrive at persons who are actually
in “control”, whether jointly, or in concert, with other persons. A
wooden, literal, interpretation would obviously not permit a tearing
of the corporate veil when it comes to the “person” whose eligibility
is to be gone into. However, a purposeful and contextual
interpretation, such as is the felt necessity of interpretation of such
a provision as Section 29A, alone governs. For example, it is well
settled that a shareholder is a separate legal entity from the
company in which he holds shares. This may be true generally
speaking, but when it comes to a corporate vehicle that is set up
for the purpose of submission of a resolution plan, it is not only
permissible but imperative for the competent authority to find out
52
as to who are the constituent elements that make up such a
company. In such cases, the principle laid down in Salomon v. A
Salomon and Co. Ltd. [1897] AC 22 will not apply. For it is
important to discover in such cases as to who are the real
individuals or entities who are acting jointly or in concert, and who
have set up such a corporate vehicle for the purpose of
submission of a resolution plan.
30. The doctrine of piercing the corporate veil is as well settled
as the Salomon (supra.) principle itself. In Life Insurance
Corporation of India v. Escorts Ltd. & Ors., (1986) 1 SCC 264,
this Court held:
“90. It was submitted that the thirteen Caparo
companies were thirteen companies in name only; they
were but one and that one was an individual, Mr Swraj
Paul. One had only to pierce the corporate veil to
discover Mr Swraj Paul lurking behind. It was
submitted that thirteen applications were made on
behalf of thirteen companies in order to circumvent the
scheme which prescribed a ceiling of one per cent on
behalf of each non-resident of Indian nationality or
origin, or each company 60 per cent of whose shares
were owned by non-residents of Indian
nationality/origin. Our attention was drawn to the
picturesque pronouncement of Lord Denning M.R.
in Wallersteiner v. Moir [(1974) 3 All ER 217] and the
decisions of this Court in Tata Engineering and
Locomotive Co. Ltd. v. State of Bihar [(1964) 6 SCR
885], CIT v. Sri Meenakshi Mills Ltd. [(1967) 1 SCR
934] and Workmen v. Associated Rubber Industry
Ltd. [(1985) 4 SCC 114]. While it is firmly established
ever since Salomon v. A. Salomon & Co. Ltd. [1897 AC
22] was decided that a company has an independent
53
and legal personality distinct from the individuals who
are its members, it has since been held that the
corporate veil may be lifted, the corporate personality
may be ignored and the individual members
recognised for who they are in certain exceptional
circumstances Pennington in his Company Law (4th
Edn.) states:
“Four inroads have been made by the law on the
principle of the separate legal personality of
companies. By far the most extensive of these
has been made by legislation imposing taxation.
The government, naturally enough, does not
willingly suffer schemes for the avoidance of
taxation which depend for their success on the
employment of the principle of separate legal
personality, and in fact legislation has gone so far
that in certain circumstances taxation can be
heavier if companies are employed by the
taxpayer in an attempt to minimise his tax liability
than if he uses other means to give effect to his
wishes. Taxation of companies is a complex
subject, and is outside the scope of this book.
The reader who wishes to pursue the subject is
referred to the many standard text books on
corporation tax, income tax, capital gains tax and
capital transfer tax.
The other inroads on the principle of separate
corporate personality have been made by two
sections of the Companies Act, 1948, by judicial
disregard of the principle where the protection of
public interest is of paramount importance, or
where the company has been formed to evade
obligations imposed by the law, and by the courts
implying in certain cases that a company is an
agent or trustee for its members.”
In Palmer's Company Law (23rd Edn.), the present
position in England is stated and the occasions when
the corporate veil may be lifted have been enumerated
and classified into fourteen categories. Similarly
in Gower's Company Law (4th Edn.), a chapter is
devoted to ‘lifting the veil’ and the various occasions
when that may be done are discussed. In Tata
Engineering and Locomotive Co. Ltd. [(1964) 6 SCR
54
885] the company wanted the corporate veil to be lifted
so as to sustain the maintainability of the petition, filed
by the company under Article 32 of the Constitution, by
treating it as one filed by the shareholders of the
company. The request of the company was turned
down on the ground that it was not possible to treat the
company as a citizen for the purposes of Article 19.
In CIT v. Sri Meenakshi Mills Ltd. [(1967) 1 SCR 934]
the corporate veil was lifted and evasion of income tax
prevented by paying regard to the economic realities
behind the legal facade. In Workmen v. Associated
Rubber Industry Ltd. [(1985) 4 SCC 114] resort was
had to the principle of lifting the veil to prevent devices
to avoid welfare legislation. It was emphasised that
regard must be had to substance and not the form of a
transaction. Generally and broadly speaking, we may
say that the corporate veil may be lifted where a
statute itself contemplates lifting the veil, or fraud or
improper conduct is intended to be prevented, or a
taxing statute or a beneficent statute is sought to be
evaded or where associated companies are
inextricably connected as to be, in reality, part of one
concern. It is neither necessary nor desirable to
enumerate the classes of cases where lifting the veil is
permissible, since that must necessarily depend on the
relevant statutory or other provisions, the object sought
to be achieved, the impugned conduct, the
involvement of the element of the public interest, the
effect on parties who may be affected etc.” (Emphasis
supplied.)
31.This statement of the law was followed in Union of India v.
ABN Amro Bank and others, (2013) 16 SCC 490, at paragraphs
43 and 44 as follows:
“43. We are of the view that in a given situation the
authorities functioning under FERA find that there are
attempts to overreach the provision of Section 29(1)
(a), the authority can always lift the veil and examine
whether the parties have entered into any fraudulent,
sham, circuitous device so as to overcome statutory
55
provisions like Section 29(1)(a). It is trite law that any
approval/permission obtained by non-disclosure of all
necessary information or making a false representation
tantamount to approval/permission obtained by
practising fraud and hence a nullity. Reference may be
made to the judgment of this Court in Union of
India v. Ramesh Gandhi [(2012) 1 SCC 476].
44. Even in Escorts case [(1986) 1 SCC 264], this
Court has taken the view that it is neither necessary
nor desirable to enumerate the classes of cases where
lifting the veil is permissible, since that must
necessarily depend on the relevant statutory or other
provisions, the object sought to be achieved, the
impugned conduct, the involvement of the element of
the public interest, the effect on parties who may be
affected, etc. In Escorts case [(1986) 1 SCC 264], this
Court held as follows: (SCC pp. 335-36, para 90)
“90. … Generally and broadly speaking, we may
say that the corporate veil may be lifted where a
statute itself contemplates lifting the veil, or fraud
or improper conduct is intended to be prevented,
or a taxing statute or a beneficent statute is
sought to be evaded or where associated
companies are inextricably connected as to be,
in reality, part of one concern.””
32.Similarly in Balwant Rai Saluja & Anr. etc. etc. v. Air India
Ltd. & Ors., (2014) 9 SCC 407, this Court in following Escorts
Ltd. (supra.), held:
“70. The doctrine of “piercing the corporate veil” stands
as an exception to the principle that a company is a
legal entity separate and distinct from its shareholders
with its own legal rights and obligations. It seeks to
disregard the separate personality of the company and
attribute the acts of the company to those who are
allegedly in direct control of its operation. The starting
point of this doctrine was discussed in the celebrated
case of Salomon v. Salomon & Co. Ltd. [1897 AC 22]
Lord Halsbury LC, negating the applicability of this
doctrine to the facts of the case, stated that: (AC pp.
56
30 & 31)
“[a company] must be treated like any other
independent person with its rights and liabilities
[legally] appropriate to itself … whatever may
have been the ideas or schemes of those who
brought it into existence.”
Most of the cases subsequent to Salomon case [1897
AC 22], attributed the doctrine of piercing the veil to the
fact that the company was a “sham” or a “façade”.
However, there was yet to be any clarity on
applicability of the said doctrine.
71. In recent times, the law has been crystallised
around the six principles formulated by Munby, J.
in Ben Hashem v. Ali Shayif [Ben Hashem v. Ali Shayif,
2008 EWHC 2380 (Fam)]. The six principles, as found
at paras 159-64 of the case are as follows:
(i) Ownership and control of a company were not
enough to justify piercing the corporate veil;
(ii) The court cannot pierce the corporate veil,
even in the absence of third-party interests in the
company, merely because it is thought to be
necessary in the interests of justice;
(iii) The corporate veil can be pierced only if
there is some impropriety;
(iv) The impropriety in question must be linked to
the use of the company structure to avoid or
conceal liability;
(v) To justify piercing the corporate veil, there
must be both control of the company by the
wrongdoer(s) and impropriety, that is use or
misuse of the company by them as a device or
facade to conceal their wrongdoing; and
(vi) The company may be a “façade” even though
it was not originally incorporated with any
deceptive intent, provided that it is being used for
the purpose of deception at the time of the
relevant transactions. The court would, however,
pierce the corporate veil only so far as it was
necessary in order to provide a remedy for the
particular wrong which those controlling the
company had done
57
72. The principles laid down by Ben Hashem
case [Ben Hashem v. Ali Shayif, 2008 EWHC 2380
(Fam)] have been reiterated by the UK Supreme Court
by Lord Neuberger in Prest v. Petrodel Resources
Ltd. [(2013) 2 AC 415], UKSC at para 64. Lord
Sumption, in Prest case [(2013) 2 AC 415], finally
observed as follows: (AC p. 488, para 35)
“35. I conclude that there is a limited principle of
English law which applies when a person is
under an existing legal obligation or liability or
subject to an existing legal restriction which he
deliberately evades or whose enforcement he
deliberately frustrates by interposing a company
under his control. The court may then pierce the
corporate veil for the purpose, and only for the
purpose, of depriving the company or its
controller of the advantage that they would
otherwise have obtained by the company's
separate legal personality. The principle is
properly described as a limited one, because in
almost every case where the test is satisfied, the
facts will in practice disclose a legal relationship
between the company and its controller which
will make it unnecessary to pierce the corporate
veil.”
73. The position of law regarding this principle in India
has been enumerated in various decisions. A
Constitution Bench of this Court in LIC v. Escorts
Ltd. [(1986) 1 SCC 264], while discussing the doctrine
of corporate veil, held that: (SCC pp. 335-36, para 90)
“90. … Generally and broadly speaking, we may
say that the corporate veil may be lifted where a
statute itself contemplates lifting the veil, or fraud
or improper conduct is intended to be prevented,
or a taxing statute or a beneficent statute is
sought to be evaded or where associated
companies are inextricably connected as to be,
in reality, part of one concern. It is neither
necessary nor desirable to enumerate the
classes of cases where lifting the veil is
permissible, since that must necessarily depend
on the relevant statutory or other provisions, the
object sought to be achieved, the impugned
58
conduct, the involvement of the element of the
public interest, the effect on parties who may be
affected, etc.””
33.Similarly in Delhi Development Authority v. Skipper
Construction Company (P) Ltd. & Another, (1996) 4 SCC 622,
this Court held:
“24. In Salomon v. Salomon & Co. Ltd. [1897 AC 22]
the House of Lords had observed,
“the company is at law a different person
altogether from the subscribers …; and, though it
may be that after incorporation the business is
precisely the same as it was before, the same
persons are managers, and the same hands
receive the profits, the company is not in law the
agent of the subscribers or trustee for them. Nor
are the subscribers as members liable, in any
shape or form, except to the extent and in the
manner provided by that Act.”
Since then, however, the courts have come to
recognise several exceptions to the said rule. While it
is not necessary to refer to all of them, the one relevant
to us is “when the corporate personality is being
blatantly used as a cloak for fraud or improper
conduct”. [Gower: Modern Company Law — 4th Edn.
(1979) at p. 137.] Pennington ( Company Law — 5th
Edn. 1985 at p. 53) also states that “where the
protection of public interests is of paramount
importance or where the company has been formed to
evade obligations imposed by the law”, the court will
disregard the corporate veil. A Professor of Law, S.
Ottolenghi in his article “From peeping behind the
Corporate Veil, to ignoring it completely” says
“the concept of ‘piercing the veil’ in the United
States is much more developed than in the UK.
The motto, which was laid down by Sanborn, J.
and cited since then as the law, is that ‘when the
notion of legal entity is used to defeat public
convenience, justify wrong, protect fraud, or
59
defend crime, the law will regard the corporation
as an association of persons’. The same can be
seen in various European jurisdictions.” [(1990)
53 Modern Law Review 338]
Indeed, as far back as 1912, another American
Professor L. Maurice Wormser examined the American
decisions on the subject in a brilliantly written article
“Piercing the veil of corporate entity” [published in
(1912) XII Columbia Law Review 496] and
summarised their central holding in the following
words:
“The various classes of cases where the concept
of corporate entity should be ignored and the veil
drawn aside have now been briefly reviewed.
What general rule, if any, can be laid down? The
nearest approximation to generalisation which
the present state of the authorities would warrant
is this: When the conception of corporate entity is
employed to defraud creditors, to evade an
existing obligation, to circumvent a statute, to
achieve or perpetuate monopoly, or to protect
knavery or crime, the courts will draw aside the
web of entity, will regard the corporate company
as an association of live, up-and-doing, men and
women shareholders, and will do justice between
real persons.”
25. In Palmer's Company Law, this topic is discussed
in Part II of Vol. I. Several situations where the court
will disregard the corporate veil are set out. It would be
sufficient for our purposes to quote the eighth
exception. It runs:
“The courts have further shown themselves
willing to ‘lifting the veil’ where the device of
incorporation is used for some illegal or improper
purpose…. Where a vendor of land sought to
avoid the action for specific performance by
transferring the land in breach of contract to a
company he had formed for the purpose, the
court treated the company as a mere ‘sham’ and
made an order for specific performance against
both the vendor and the company.”
Similar views have been expressed by all the
60
commentators on the Company Law which we do not
think necessary to refer to.
26. The law as stated by Palmer and Gower has been
approved by this Court in TELCO v. State of
Bihar [(1964) 6 SCR 885]. The following passage from
the decision is apposite:
“… Gower has classified seven categories of
cases where the veil of a corporate body has
been lifted. But, it would not be possible to
evolve a rational, consistent and inflexible
principle which can be invoked in determining the
question as to whether the veil of the corporation
should be lifted or not. Broadly stated, where
fraud is intended to be prevented, or trading with
an enemy is sought to be defeated, the veil of a
corporation is lifted by judicial decisions and the
shareholders are held to be the persons who
actually work for the corporation.”
27. In DHN Food Distributors Ltd. v. London Borough
of Tower Hamlets [(1976) 3 All ER 462] the court of
appeal dealt with a group of companies. Lord Denning
quoted with approval the statement in Gower's
Company Law that
“there is evidence of a general tendency to
ignore the separate legal entities of various
companies within a group, and to look instead at
the economic entity of the whole group”.
The learned Master of Rolls observed that “this group
is virtually the same as a partnership in which all the
three companies are partners”. He called it a case of
“three in one” — and, alternatively, as “one in three”.
28. The concept of corporate entity was evolved to
encourage and promote trade and commerce but not
to commit illegalities or to defraud people. Where,
therefore, the corporate character is employed for the
purpose of committing illegality or for defrauding
others, the court would ignore the corporate character
and will look at the reality behind the corporate veil so
as to enable it to pass appropriate orders to do justice
between the parties concerned. The fact that Tejwant
Singh and members of his family have created several
corporate bodies does not prevent this Court from
61
treating all of them as one entity belonging to and
controlled by Tejwant Singh and family if it is found that
these corporate bodies are merely cloaks behind which
lurks Tejwant Singh and/or members of his
family and that the device of incorporation was really a
ploy adopted for committing illegalities and/or to
defraud people.” (emphasis supplied)
34.It is thus clear that, where a statute itself lifts the corporate
veil, or where protection of public interest is of paramount
importance, or where a company has been formed to evade
obligations imposed by the law, the court will disregard the
corporate veil. Further, this principle is applied even to group
companies, so that one is able to look at the economic entity of the
group as a whole.
35.The expression “acting jointly” in the opening sentence of
Section 29A cannot be confused with “joint venture agreements”,
as was sought to be argued by Shri Rohatgi. He cited various
judgments including Faqir Chand Gulati v. Uppal Agencies Pvt.
Ltd. & Anr., (2008) 10 SCC 345, and Laurel Energetics Private
Limited v. Securities and Exchange Board of India, (2017) 8
SCC 541, to buttress his submission that a joint venture is a
contractually agreed sharing of control over an economic activity.
We are afraid that these judgments are wholly inapplicable. All
that is to be seen by the expression “acting jointly” is whether
62
certain persons have got together and are acting “jointly” in the
sense of acting together. If this is made out on the facts, no super
added element of “joint venture” as is understood in law is to be
seen. The other important phrase is “in concert”. By Section 3(37)
of the Code, words and expressions used but not defined in the
Code but defined inter alia by the SEBI Act, 1992, and the
Companies Act, 2013, shall have the meanings respectively
assigned to them in those Acts. In exercise of powers conferred by
Sections 11 and 30 of the SEBI Act, 1992, the 2011 Takeover
Regulations have been promulgated by SEBI.
36.Originally, the SEBI (Substantial Acquisition of Shares and
Takeovers) Regulations, 1994, defined “persons acting in concert”
as follows:
“(d)“person acting in concert” comprises persons
who, pursuant to an agreement or understanding
acquires or agrees to acquire shares in a company for
a common objective o purpose of substantial
acquisition of shares and includes:
i. a company, its holding company, or subsidiaries of
such companies or companies under the same
management either individually or all with each other.
ii. a company with any of its directors, or any person
entrusted with the management of the funds of the
company;
iii. directors of companies, referred to in clause (i) and
his associates; and
iv. mutual fund, financial institution, merchant banker,
portfolio manager and any investment company in
which any person has an interest as director, fund
63
manager, trustee, or as a shareholder having not less
than 2% of the paid-up capital of that company.
Explanation – For the purposes of this clause
“associate” means:-
A. Any relative of that person within the meaning
of section 6 of the Companies Act, 1956 (1 of
1956);
B. the director or his relative whether individually
or in aggregate holding more than 2% of the
paid-up equity capital of such company.”
This was replaced in 1997 by the Regulations of 1997, and then
further by the 2011 Takeover Regulations.
37.The Justice P.N. Bhagwati Committee Report on Takeovers,
1997, pursuant to which the Regulations of 1997 were framed,
stated as follows:
“2.22 Definition of ‘Persons acting in concert’
“Persons acting in concert” have particular relevance
to public offers, for often an acquirer can acquire
shares or voting rights in a company “in concert” with
any other person in a manner that the acquisitions
made by him remain below the threshold limit, though
taken together with the voting rights of persons in
concert, the threshold may well be exceeded. It is
therefore, important to define “persons acting in
concert”.
To be acting in concert with an acquirer, persons must
fulfil certain “bright line” tests. They must have
commonality of objectives and a community of
interests which could be acquisition of shares or voting
rights beyond the threshold limit, or gaining control
over the company and their act of acquiring the shares
or voting rights in a company must serve this common
objective. Implicit in the concerted action of these
persons must be an element of cooperation. And as
has been observed, this cooperation could be
64
extended in several ways, directly or indirectly, or
through an agreement – formal or informal. The
committee was of the view that the present definition of
“persons acting in concert” in sub-clause (d) of
regulation 2 needed to be strengthened by
incorporating all the ingredients discussed in the
foregoing paragraph to bring out clearly the import of
acting in concert.
Any person fulfilling the “bright line” tests would be
acting in concert. But there could also be certain
persons who, by their position in relation to an acquirer
or by the very nature of their business, could be
generally presumed to be acting in concert, unless
proved to the contrary. In other words, a rebuttable
presumption of being persons in concert with burden of
proof cast on them will be raised against these
persons. The Committee was of the view that while the
net of presumption should be cast to include all such
persons, it should not be cast too widely so as to
impinge on the freedom of any person to carry on his
normal business activities. In other words, there should
be well defined bounds of presumption.
xxx xxx xxx
2.23Burden of proof on ‘persons acting in
concert’
The Committee further noted that in the existing
Regulations, there is no burden of proof on the
‘persons acting in concert’. Once the burden of proof is
cast on the persons presumed to be acting in concert,
it would be important to ensure that the persons are
grouped in categories such that the persons may be
presumed to be acting in concert only with another
person belonging to the same category. A general
reading of the existing provisions implies that a person
belonging to any one of the categories mentioned in
sub-clauses (i) to (iv) of clause (d) of regulation 2 could
be presumed to be acting in concert with a person
belonging to any other category. Thus, a company
could be presumed to be acting in concert with a
merchant banker, mutual fund, or any other body even
though they may all be distinctly independent entities
without any connection whatsoever. Such irrebuttable
presumption of a common motive amongst unrelated
parties would be illogical and not legally tenable. A
65
distinction must be made between persons who could
be presumed to be acting in concert unless proved to
the contrary and others who may be acting in concert
even though such a presumption cannot be raised
against them. In this context, it may be noted that the
UK City Code of Takeovers and Mergers, for this very
reason, has divided the persons acting in concert into
groups in such a manner that these persons would in
the natural course of affairs be presumed to be acting
in concert only with another person in the same group.
This served to set the pattern for raising rebuttable
presumptions.
The Committee recommends that
.In the definition of persons acting in concert, the
persons be grouped in such a manner in the same
group or category that they bear such relationship
amongst themselves as could justify raising of a
presumption in the normal course of affairs that
they are acting in concert. For example, a sponsor
of a mutual fund could be presumed to be acting in
concert with the trustee company or asset
management company of the same mutual fund;
similarly a merchant banker may be presumed to
be acting in concert with his client as acquirer. But
no presumption may be made that persons in one
group are acting in concert with persons in another
group. It has to be proved by evidence that they are
acting in concert. (Reference: Part II of the Report –
sub-clause (e) of sub-regulation (1) of regulation
2) .
The definition of the persons acting in concert as
defined above would imply a rebuttable presumption.
The question which arises is who would rule whether
the presumption has been rebutted. The responsibility
of ruling will lie with SEBI and over a period of time,
jurisprudence on the subject will develop.”
38.By Regulation 2(1)(q) of the 2011 Takeover
Regulations, “persons acting in concert” is defined as
follows:-
66
“(q) “persons acting in concert” means,—
(1) persons who, with a common objective or purpose
of acquisition of shares or voting rights in, or exercising
control over a target company, pursuant to an
agreement or understanding, formal or informal,
directly or indirectly co-operate for acquisition of
shares or voting rights in, or exercise of control over
the target company.
(2) Without prejudice to the generality of the foregoing,
the persons falling within the following categories shall
be deemed to be persons acting in concert with other
persons within the same category, unless the contrary
is established,—
(i) a company, its holding company, subsidiary
company and any company under the same
management or control;
(ii) a company, its directors, and any person
entrusted with the management of the company;
(iii) directors of companies referred to in item (i)
and (ii) of this sub-clause and associates of such
directors;
(iv) promoters and members of the promoter
group;
(v) immediate relatives;
(vi) a mutual fund, its sponsor, trustees, trustee
company, and asset management company;
(vii) a collective investment scheme and its
collective investment management company,
trustees and trustee company;
(viii) a venture capital fund and its sponsor,
trustees, trustee company and asset
management company;
(viiia) an alternative investment fund and its
sponsor, trustees, trustee company and
manager;
(ix) [***]
(x) a merchant banker and its client, who is an
acquirer;
67
(xi) a portfolio manager and its client, who is an
acquirer;
(xii) banks, financial advisors and stock brokers
of the acquirer, or of any company which is a
holding company or subsidiary of the acquirer,
and where the acquirer is an individual, of the
immediate relative of such individual:
Provided that this sub-clause shall not apply to a
bank whose sole role is that of providing normal
commercial banking services or activities in
relation to an open offer under these regulations;
(xiii) an investment company or fund and any
person who has an interest in such investment
company or fund as a shareholder or unitholder
having not less than 10 per cent of the paid-up
capital of the investment company or unit capital
of the fund, and any other investment company
or fund in which such person or his associate
holds not less than 10 per cent of the paid-up
capital of that investment company or unit capital
of that fund:
Provided that nothing contained in this sub-
clause shall apply to holding of units of mutual
funds registered with the Board;
Explanation.—For the purposes of this clause ―
“associate” of a person means,—
(a) any immediate relative of such person;
(b) trusts of which such person or his immediate
relative is a trustee;
(c) partnership firm in which such person or his
immediate relative is a partner; and
(d) members of Hindu undivided families of which
such person is a coparcener;”
39. It will be seen from the wide language used, that any
understanding, even if it is informal, and even if it is to indirectly
cooperate to exercise control over a target company, is included.
68
Under sub-clause (2) of clause (q), a deeming fiction is enacted,
by which a presumption is raised in the categories mentioned, that
a person falling within one category is deemed to be acting in
concert with another person mentioned in the same category,
unless the contrary is established. The corporate veil is not merely
torn but is left in tatters by sub-clauses (i) to (iv) of Regulation 2(1)
(q)(2). What is also important to note is that “immediate relatives”
are also covered by sub-clause (v) – i.e., father and son, brothers,
etc. Also of importance is the definition of “associate” in the
explanation to Regulation 2(1)(q)(2), which subsumes not merely
immediate relatives but other forms in which a person can be
associated with another - which includes the form of trust,
partnership firm and HUF. What is of great importance is that
wherever persons act jointly or in concert with the “person” who
submits a resolution plan, all such persons are covered by Section
29A. It is interesting to note that the report of the Insolvency Law
Committee of March, 2018, wanted to curtail the wide definition of
persons acting jointly or in concert as follows:
“14.3The term 'person acting jointly or in concert' has
not been defined in the Code and using the definition
provided in the SEBI (Substantial Acquisition of Shares
and Takeovers) Regulations, 2011 results in inclusion
of an extremely wide gamut of person within the scope
of section 29A. In practice, it is unclear whether the
term 'connected person' in clause (j) applies to only the
resolution applicant or even 'persons acting jointly or in
69
concert with such person'. If the latter interpretation is
taken, this provision would be applicable to multiple
layers of persons who are related to the resolution
applicant even remotely. Further, ARCs, banks and
alternate investment funds which are specifically
excluded from the definition of 'connected person'
provided in section 29A may be caught by the term
'person acting jointly or in concert with such person'.
The Committee felt that section 29A was introduced to
disqualify only those who had contributed in the
downfall of the corporate debtor or were unsuitable to
run the company because of their antecedents whether
directly or indirectly. Therefore, extending the
disqualification to a resolution application owing
to infirmities in persons remotely related may have
adverse consequences. Such interpretation of this
provision may shrink the pool of resolution
applicants. Accordingly, the Committee felt that the
words, “…, if such person, or any other person
acting jointly or in concert with such person" in the
first line of section 29A must be deleted. This
would clarify that section 29A is applicable to the
resolution applicant and its connected person only.
Further, in order to ensure that anyone who acts
with a common objective along with the resolution
applicant to acquire shares, voting rights or
control of the corporate debtor is required to pass
the test laid down in section 29A, the Committee
felt that the following clause must be added as
clause (iv) to the definition of connected person in
the explanation to clause (j), "(iv) any persons who
along with the resolution applicant, with a common
objective or purpose of acquisition of shares or
voting rights in, or exercising control over a
corporate debtor, pursuant to an agreement or
understanding, formal or informal, directly or
indirectly co-operate for acquisition of shares or
voting rights in, or exercise of control over the
corporate debtor."”
This part of the report has not been accepted by the legislature, as
none of the suggested changes in the law have been made.
70
40.In Technip SA v. SMS Holding (Pvt.) Ltd. & Ors., (2005) 5
SCC 465, this Court after referring to the Bhagwati Committee
Report of 1997, stated as follows:-
“54. The standard of proof required to establish such
concert is one of probability and may be established
“if having regard to their relation etc., their
conduct, and their common interest, that it may
be inferred that they must be acting together:
evidence of actual concerted acting is normally
difficult to obtain, and is not insisted upon”
[CIT v. East Coast Commercial Co. Ltd., (1967)
1 SCR 821]. (SCR p. 829 H)
55. While deciding whether a company was one in
which the public were substantially interested within
the meaning of Section 23-A of the Income Tax Act,
1922 this Court said:
“The test is not whether they have actually acted
in concert but whether the circumstances are
such that human experience tells us that it can
safely be taken that they must be acting together.
It is not necessary to state the kind of evidence
that will prove such concerted actings. Each case
must necessarily be decided on its own facts.”
[CIT v. Jubilee Mills Ltd., (1963) 48 ITR 9 (SC), p.
20]
56. In Guinness PLC and Distillers Co. PLC [Guinness
PLC and Distillers Company PLC (Panel hearing on
25-8-1987 and 2-9-1987 at p. 10052 — Reasons for
decisions of the Panel.)] the question before the
Takeover Panel was whether Guinness had acted in
concert with Pipetec when Pipetec purchased shares
in Distillers Company PLC. Various factors were taken
into consideration to conclude that Guinness had acted
in concert with Pipetec to get control over Distillers
Company. The Panel said:
“The nature of acting in concert requires that the
definition be drawn in deliberately wide terms. It
covers an understanding as well as an
agreement, and an informal as well as a formal
arrangement, which leads to cooperation to
71
purchase shares to acquire control of a company.
This is necessary, as such arrangements are
often informal, and the understanding may arise
from a hint. The understanding may be tacit, and
the definition covers situations where the parties
act on the basis of a ‘nod or a wink’…. Unless
persons declare this agreement or
understanding, there is rarely direct evidence of
action in concert, and the Panel must draw on its
experience and common sense to determine
whether those involved in any dealings have
some form of understanding and are acting in
cooperation with each other.” [Guinness PLC
and Distillers Company PLC (Panel hearing on
25-8-1987 and 2-9-1987 at p. 10052 — Reasons
for decisions of the Panel.)]” (emphasis
supplied)
41.In M/s. Daiichi Sankyo Company Ltd. v. Jayaram
Chigurupati & Ors., (2010) 7 SCC 449, this Court referred to the
concept of “persons acting in concert” and held that there must be
a shared common objective for substantial acquisition of shares of
a target company under the SEBI regulations. A fortuitous
relationship coming into existence by accident or chance obviously
cannot amount to “persons acting in concert”. This Court held:-
“49. The other limb of the concept requires two or
more persons joining together with the shared common
objective and purpose of substantial acquisition of
shares, etc. of a certain target company. There can be
no “persons acting in concert” unless there is a shared
common objective or purpose between two or more
persons of substantial acquisition of shares, etc. of the
target company. For, dehors the element of the shared
common objective or purpose the idea of “person
acting in concert” is as meaningless as a criminal
conspiracy without any agreement to commit a criminal
72
offence. The idea of “persons acting in concert” is not
about a fortuitous relationship coming into existence by
accident or chance. The relationship can come into
being only by design, by meeting of minds between
two or more persons leading to the shared common
objective or purpose of acquisition or substantial
acquisition of shares, etc. of the target company. It is
another matter that the common objective or purpose
may be in pursuance of an agreement or an
understanding, formal or informal; the acquisition of
shares, etc. may be direct or indirect or the persons
acting in concert may cooperate in actual acquisition of
shares, etc. or they may agree to cooperate in such
acquisition. Nonetheless, the element of the shared
common objective or purpose is the sine qua non for
the relationship of “persons acting in concert” to come
into being.” (emphasis supplied)
When coming to the presumption created by the provision, this
Court held that the deeming provision is left open to rebuttal as
indicated by the words “unless the contrary is established” (see
paragraph 54 of Daiichi (supra.)). Finally, this Court held that
whether a person is or is not acting in concert would depend upon
the facts of each case. (see paragraph 57 of Daiichi (supra.)).
42.When we come to sub-clause (c) of Section 29A, the first
thing that was argued, at which the parties were at loggerheads,
was the time at which sub-clause (c) can be said to operate.
According to Shri Rohatgi, in the original sub-clause (c), pre-
amendment, the time must necessarily be the date of
commencement of the corporate insolvency resolution process, as
is mentioned by the Section itself. According to Messrs Salve and
73
Singhvi, it is clear that since submission of a resolution plan is
spoken of, it is the time of submission of such plan and not any
anterior stage.
43.According to us, it is clear that the opening words of Section
29A furnish a clue as to the time at which sub-clause (c) is to
operate. The opening words of Section 29A state: “a person shall
not be eligible to submit a resolution plan…”. It is clear therefore
that the stage of ineligibility attaches when the resolution plan is
submitted by a resolution applicant. The contrary view expressed
by Shri Rohatgi is obviously incorrect, as the date of
commencement of the corporate insolvency resolution process is
only relevant for the purpose of calculating whether one year has
lapsed from the date of classification of a person as a non-
performing asset. Further, the expression used is “has”, which as
Dr. Singhvi has correctly argued, is in praesenti. This is to be
contrasted with the expression “has been”, which is used in sub-
clauses (d) and (g), which refers to an anterior point of time.
Consequently, the amendment of 2018 introducing the words “at
the time of submission of the resolution plan” is clarificatory, as this
was always the correct interpretation as to the point of time at
which the disqualification in sub-clause (c) of Section 29A will
attach. In fact, the amendment was made pursuant to the
74
Insolvency Law Committee Report of March, 2018. That report
clearly stated:
“In relation to applicability of section 29A(c), the
Committee also discussed that it must be clarified that
the disqualification pursuant to section 29A(c) shall be
applicable if such NPA accounts are held by the
resolution applicant or its connected persons at the
time of submission of the resolution plan to the RP.”
44.The ingredients of sub-clause (c) are that, the ineligibility to
submit a resolution plan attaches if any person, as is referred to in
the opening lines of Section 29A, either itself has an account, or is
a promoter of, or in the management or control of, a corporate
debtor which has an account, which account has been classified
as a non-performing asset, for a period of at least one year from
the date of such classification till the date of commencement of the
corporate insolvency resolution process. For the purpose of
applying this sub-section, any one of three things, which are
disjunctive, needs to be established. The corporate debtor may be
under the management of the person referred to in Section 29A,
the corporate debtor may be a person under the control of such
person, or the corporate debtor may be a person of whom such
person is a promoter.
45.The expression “management” would refer to the de jure
management of a corporate debtor. The de jure management of a
75
corporate debtor would ordinarily vest in a Board of Directors, and
would include, in accord with the definitions of “manager”,
“managing director” and “officer” in Sections 2(53), 2(54) and 2(59)
respectively of the Companies Act, 2013, the persons mentioned
therein.
46. The expression “control” is defined in Section 2(27) of the
Companies Act, 2013 as follows:-
“(27) “control” shall include the right to appoint majority
of the directors or to control the management or policy
decisions exercisable by a person or persons acting
individually or in concert, directly or indirectly, including
by virtue of their shareholding or management rights or
shareholders agreements or voting agreements or in
any other manner;”
47.The expression “control” is therefore defined in two parts.
The first part refers to de jure control, which includes the right to
appoint a majority of the directors of a company. The second part
refers to de facto control. So long as a person or persons acting in
concert, directly or indirectly, can positively influence, in any
manner, management or policy decisions, they could be said to be
“in control”. A management decision is a decision to be taken as
to how the corporate body is to be run in its day to day affairs. A
policy decision would be a decision that would be beyond running
day to day affairs, i.e., long term decisions. So long as
76
management or policy decisions can be, or are in fact, taken by
virtue of shareholding, management rights, shareholders
agreements, voting agreements or otherwise, control can be said
to exist.
48.Thus, the expression “control”, in Section 29A(c), denotes
only positive control, which means that the mere power to block
special resolutions of a company cannot amount to control.
“Control” here, as contrasted with “management”, means de facto
control of actual management or policy decisions that can be or
are in fact taken. A judgment of the Securities Appellate Tribunal
in M/s Subhkam Ventures (I) Private Limited v. The Securities
and Exchange Board of India (Appeal No. 8 of 2009 decided on
15.1.2010), made the following observations qua “control” under
the SEBI (Substantial Acquisition of Shares and Takeover)
Regulations, 1997, wherein “control” is defined in Regulation 2(1)
(e) in similar terms as in Section 2(27) of the Companies Act,
2013. The Securities Appellate Tribunal held:
“6. …The term control has been defined in Regulation
2(1)(c) of the takeover code to "include the right to
appoint majority of the directors or to control the
management or policy decisions exercisable by a
person or persons acting individually or in concert,
directly or indirectly, including by virtue of their
shareholding or management rights or shareholders
agreements or voting agreements or in any other
manner." This definition is an inclusive one and not
77
exhaustive and it has two distinct and separate
features: i) the right to appoint majority of directors or,
ii) the ability to control the management or policy
decisions by various means referred to in the
definition. This control of management or policy
decisions could be by virtue of shareholding or
management rights or shareholders agreement or
voting agreements or in any other manner. This
definition appears to be similar to the one as given in
Black's Law Dictionary (Eighth Edition) at page 353
where this term has been defined as under:
“Control - The direct or indirect power to direct
the management and policies of a person or
entity, whether through ownership of voting
securities, by contract, or otherwise; the power or
authority to manage, direct, or oversee.”
Control, according to the definition, is a proactive and
not a reactive power. It is a power by which an acquirer
can command the target company to do what he wants
it to do. Control really means creating or controlling a
situation by taking the initiative. Power by which an
acquirer can only prevent a company from doing what
the latter wants to do is by itself not control. In that
event, the acquirer is only reacting rather than taking
the initiative. It is a positive power and not a negative
power. In a board managed company, it is the board of
directors that is in control. If an acquirer were to have
power to appoint majority of directors, it is obvious that
he would be in control of the company but that is not
the only way to be in control. If an acquirer were to
control the management or policy decisions of a
company, he would be in control. This could happen by
virtue of his shareholding or management rights or by
reason of shareholders agreements or voting
agreements or in any other manner. The test really is
whether the acquirer is in the driving seat. To extend
the metaphor further, the question would be whether
he controls the steering, accelerator, the gears and the
brakes. If the answer to these questions is in the
affirmative, then alone would he be in control of the
company. In other words, the question to be asked in
each case would be whether the acquirer is the driving
force behind the company and whether he is the one
78
providing motion to the organization. If yes, he is in
control but not otherwise. In short control means
effective control.”
49.We think that these observations are apposite, and apply to
the expression “control” in Section 29A(c).
50.Section 29A(c) speaks of a corporate debtor “under the
management or control of such person”. The expression “under”
would seem to suggest positive or proactive control, as opposed to
mere negative or reactive control. This becomes even clearer
when sub-clause (g) of Section 29A is read, wherein the
expression used is “in the management or control of a corporate
debtor”. Under sub-clause (g), only a person who is in proactive or
positive control of a corporate debtor can take the proactive
decisions mentioned in sub-clause (g), such as, entering into
preferential, undervalued, extortionate credit, or fraudulent
transactions. It is thus clear that in the expression “management
or control”, the two words take colour from each other, in which
case the principle of noscitur a sociis must also be held to apply.
Thus viewed, what is referred to in sub-clauses (c) and (g) is de
jure or de facto proactive or positive control, and not mere
negative control which may flow from an expansive reading of the
definition of the word “control” contained in Section 2(27) of the
79
Companies Act, 2013, which is inclusive and not exhaustive in
nature.
51.In a recent judgment delivered by one of us (Nariman, J.) in
Chintalapati Srinivasa Raju v. Securities and Exchange Board
of India, (2018) 7 SCC 443, this Court after referring to the
definition of “control” in the SEBI regulations, held on facts that an
executive director, on a fixed monthly salary, post resignation,
cannot be held to be a person exercising “control” within the
meaning of the SEBI regulations. This Court referred to with
approval the following test laid down in Securities and
Exchange Board of India v. Kishore R. Ajmera, (2016) 6 SCC
368:-
“26. It is a fundamental principle of law that proof of an
allegation levelled against a person may be in the form
of direct substantive evidence or, as in many cases,
such proof may have to be inferred by a logical
process of reasoning from the totality of the attending
facts and circumstances surrounding the
allegations/charges made and levelled. While direct
evidence is a more certain basis to come to a
conclusion, yet, in the absence thereof the Courts
cannot be helpless. It is the judicial duty to take note of
the immediate and proximate facts and circumstances
surrounding the events on which the
charges/allegations are founded and to reach what
would appear to the Court to be a reasonable
conclusion therefrom. The test would always be that
what inferential process that a reasonable/prudent man
would adopt to arrive at a conclusion.” (emphasis
supplied)
80
52.The third concept is that of a promoter. “Promoter” is defined
by Section 2(69) of the Companies Act, 2013 as follows:
“(69) “promoter” means a person—
(a) who has been named as such in a prospectus
or is identified by the company in the annual
return referred to in Section 92; or
(b) who has control over the affairs of the
company, directly or indirectly whether as a
shareholder, director or otherwise; or
(c) in accordance with whose advice, directions
or instructions the Board of Directors of the
company is accustomed to act:
Provided that nothing in sub-clause (c) shall apply to a
person who is acting merely in a professional
capacity;”
53. Here again, sub-clause (a) refers to a de jure position,
namely, where a person is expressly named in a prospectus or
identified by the company in an annual return as a promoter. Sub-
clauses (b) and (c) speak of a de facto position. Under sub-clause
(b), so long as a person has “control” over the affairs of a
company, directly or indirectly, in any manner, he could be said to
be a promoter of such company. Under sub-clause (c), such
person need not be a member of the Board of Directors of a
company, but can be a person who in fact advises, directs or
instructs the Board to act. Under the proviso, only a person who
acts in a professional capacity is excluded from the talons of sub-
clause (c).
81
54.The interpretation of Section 29A(c) now becomes clear. Any
person who wishes to submit a resolution plan, if he or it does so
acting jointly, or in concert with other persons, which person or
other persons happen to either manage or control or be promoters
of a corporate debtor, who is classified as a non-performing asset
and whose debts have not been paid off for a period of at least
one year before commencement of the corporate insolvency
resolution process, becomes ineligible to submit a resolution plan.
This provision therefore ensures that if a person wishes to submit
a resolution plan, and if such person or any person acting jointly or
any person in concert with such person, happens to either
manage, control, or be promoter of a corporate debtor declared as
a non-performing asset one year before the corporate insolvency
resolution process begins, is ineligible to submit a resolution plan.
The first proviso to sub-clause (c) makes it clear that the
ineligibility can only be removed if the person submitting a
resolution plan makes payment of all overdue amounts with
interest thereon and charges relating to the non-performing asset
in question before submission of a resolution plan. The position in
law is thus clear. Any person who wishes to submit a resolution
plan acting jointly or in concert with other persons, any of whom
may either manage, control or be a promoter of a corporate debtor
82
classified as a non-performing asset in the period
abovementioned, must first pay off the debt of the said corporate
debtor classified as a non-performing asset in order to become
eligible under Section 29A(c).
55.However, Messrs Salve and Singhvi have argued that the
expression “before submission of resolution plan” contained in the
proviso must be read in a commercially sensible manner. The
provision must, therefore, be interpreted to make it workable, and
create a situation so that banks can recover the maximum possible
amounts from the NPAs generally, and not merely from the NPAs
of the corporate debtor in respect of which it is receiving resolution
plans. In this context, therefore, if there is a system by which a
person who presents a resolution plan can pay off the entire
amount of the NPAs as a part of its resolution plan, to be
appropriated before the resolution plan is accepted and
implemented, it would fully subserve the object of both the proviso
and the statute generally. According to them, the words of a
statute can be altered suitably to avoid hardship or absurdity. We
are afraid that we cannot accept the aforesaid submission. The
plain language of the proviso makes it clear, that ineligibility can
only be removed if the necessary payment is made before
submission of a resolution plan. It is not possible to accede to the
83
argument that, commercially speaking, no person would ever
make a speculative bid, where he would pay off the debt of
another related corporate debtor, classified as an NPA, without
being certain that his resolution plan would be accepted, as this
would narrow the pool of resolution applicants to nil, and therefore
stultify the object sought to be achieved by the proviso to Section
29A(c). First, it is clear that there may be persons who may submit
resolution plans, either by themselves, or in concert, or jointly with
other persons who do not have debts which are declared as NPAs.
Also, it is very difficult to say that in no circumstance whatsoever
would a person submitting a resolution plan pay off the NPA dues
of another person, with whom it is acting in concert or jointly. The
dues may be such that it may be worth the while of the person,
together with the persons with whom he is acting in concert or
jointly, to first pay off the dues of the concerned corporate debtor
whose account has been declared to be an NPA, as such dues
may be negligible when compared with the gaining of control of the
corporate debtor that is sought to be run as a going concern as per
a resolution plan submitted. It is, therefore, impossible to say that
the plain, literal, meaning of the language used by the proviso
leads to absurdity or hardship. This interpretation is also in line
with the object sought to be achieved, namely, that other corporate
84
debtors who are declared as NPAs, whose debts may never be
cleared in full, are required to be cleared as a condition precedent
to submission of a resolution plan under the Code. In order,
therefore, to make the statute “workable”, as is suggested by
Messrs Salve and Singhvi, we cannot disregard the plain language
of the proviso and substitute words which would have the opposite
effect.
56.Since Section 29A(c) is a see-through provision, great care
must be taken to ensure that persons who are in charge of the
corporate debtor for whom such resolution plan is made, do not
come back in some other form to regain control of the company
without first paying off its debts. The Code has bifurcated such
persons into two groups, as a perusal of sub-clauses (c) and (g) of
Section 29A shows. If a person has been a promoter, or in the
management, or control, of a corporate debtor in which a
preferential transaction, undervalued transaction, extortionate
credit transaction or fraudulent transaction has taken place, and in
respect of which an order has been made by the Adjudicating
Authority under the Code, such person is ineligible to present a
resolution plan under Section 29A(g). This ineligibility cannot be
cured by paying off the debts of the corporate debtor. Therefore, it
is only such persons who do not fall foul of sub-clause (g), who are
85
eligible to submit resolution plans under sub-clause (c) of Section
29A, if they happen to be persons who were in the erstwhile
management or control of the corporate debtor.
57.It is important for the competent authority to see that
persons, who are otherwise ineligible and hit by sub-clause (c), do
not wriggle out of the proviso to sub-clause (c) by other means, so
as to avoid the consequences of the proviso. For this purpose,
despite the fact that the relevant time for the ineligibility under sub-
clause (c) to attach is the time of submission of the resolution plan,
antecedent facts reasonably proximate to this point of time can
always be seen, to determine whether the persons referred to in
Section 29A are, in substance, seeking to avoid the consequences
of the proviso to sub-clause (c) before submitting a resolution plan.
If it is shown, on facts, that, at a reasonably proximate point of time
before the submission of the resolution plan, the affairs of the
persons referred to in Section 29A are so arranged, as to avoid
paying off the debts of the non-performing asset concerned, such
persons must be held to be ineligible to submit a resolution plan,
or otherwise both the purpose of the first proviso to sub-section (c)
of Section 29A, as well as the larger objective sought to be
achieved by the said sub-clause in public interest, will be defeated.
86
58.When we come to sub-clause (f), it is clear that, if any of the
persons mentioned in Section 29A is prohibited by SEBI from
either trading in securities or accessing the securities market –
again, ineligibility of the person submitting the resolution plan
attaches. Under sub-clause (i), if a person situate abroad is
subject to any disability which corresponds to sub-clause (f), such
person also gets interdicted. In E.V. Mathai v. Subordinate
Judge, Kottayam & Ors., (1969) 2 SCC 194, the expression
“corresponding to” was explained as follows:-
“It was argued by Mr Daphtary that Section 4 was not
applicable because a different intention appeared from
Section 34(1) of the Act of 1965. We find ourselves
unable to accept this contention. The proviso to
Section 34(1) lays down that a legal proceeding which
could have been instituted, continued or enforced
under the repealed Act of 1959 may be instituted under
the corresponding provisions of the new Act. Mr
Daphtary tried to meet this by urging that Section 11(4)
of the Act of 1959 did not contain any corresponding
provision. Sub-section (1) of Section 11 of the 1959 Act
laid down that:
“Notwithstanding anything to the contrary
contained in any other law or contract a tenant
shall not be evicted, whether in execution of a
decree or otherwise except in accordance with
the provisions of this Act:
Provided....”
Sub-section (4)(i) of Section 11 however gave the
landlord a right to apply for eviction and for an order
directing him to be put in possession of the building:
“if the tenant has without the consent of the
landlord transferred his right under the lease or
sub-let the entire building or any portion thereof,
87
if the lease does not confer on him any right to
do so, or the landlord has not consented to such
sub-letting;”
We find ourselves unable to accept Mr Daphtary’s
argument that the above quoted provision of Section
11 of the Act of 1959 was not “a corresponding
provision” within the meaning of the proviso to sub-
section (1) of Section 34 of the Act of 1965. To
correspond means to “be in harmony with or be similar,
analogous to”. It does not mean to “be identical with”
and therefore the relevant provisions of Section 34 (1)
of the Act of 1965 must be held to be a provision
corresponding to Section 11(4) of the Act of 1959.”
59.In the light thereof, it is clear that if a person is prohibited by
a regulator of the securities market in a foreign country from
trading in securities or accessing the securities market, the
disability under sub-clause (i) would then attach.
60.When we come to sub-clause (j), a “connected person” is
defined as meaning the three categories of persons mentioned in
the three sub-clauses therein. The first sub-clause of Explanation
1 again takes us back to the same three definitions of “promoter”,
“management” and “control” of the resolution applicant. Under
sub-clause (ii), again, a “connected person” is a person who is
either the promoter, or in management or control, of the business
of the corporate debtor during implementation of the resolution
plan. And under sub-clause (iii), holding companies, subsidiary
companies and associate companies as defined under the
88
Companies Act, 2013, or related parties of persons referred to in
clauses (1) and (2) also become connected persons
1
.
61.We now come to the equally important question as to the
timelines within which the insolvency process is to be completed.
62.Previous legislation, namely, the Sick Industrial Companies
1
By the Insolvency and Bankruptcy Code (Second Amendment) Act of 2018 a new
definition of “related party” has been inserted with effect from 6.6.2018, as section 5(24-A)
of the Code, as follows:-
“(24-A) “related party”, in relation to an individual, means—
(a) a person who is a relative of the individual or a relative of the spouse of
the individual;
(b) a partner of a limited liability partnership, or a limited liability partnership or
a partnership firm, in which the individual is a partner;
(c) a person who is a trustee of a trust in which the beneficiary of the trust
includes the individual, or the terms of the trust confers a power on the trustee
which may be exercised for the benefit of the individual;
(d) a private company in which the individual is a director and holds along
with his relatives, more than two per cent. of its share capital;
(e) a public company in which the individual is a director and holds along with
relatives, more than two per cent. of its paid-up share capital;
(f) a body corporate whose board of directors, managing director or manager,
in the ordinary course of business, acts on the advice, directions or
instructions of the individual;
(g) a limited liability partnership or a partnership firm whose partners or
employees in the ordinary course of business, act on the advice, directions or
instructions of the individual;
(h) a person on whose advice, directions or instructions, the individual is
accustomed to act;
(i) a company, where the individual or the individual along with its related
party, own more than fifty per cent. of the share capital of the company or
controls the appointment of the board of directors of the company.
Explanation.—For the purposes of this clause,—
(a) “relative”, with reference to any person, means anyone who is
related to another, in the following manner, namely:—
(i) members of a Hindu Undivided Family,
(ii) husband,
(iii) wife,
(iv) father,
(v) mother,
(vi) son,
(vii) daughter,
(viii) son's daughter and son,
(ix) daughter's daughter and son,
(x) grandson's daughter and son,
(xi) granddaughter's daughter and son,
89
(Special Provisions) Act, 1985, and the Recovery of Debts Due to
Banks and Financial Institutions Act, 1993, which made provision
for rehabilitation of sick companies and repayment of loans availed
by them, were found to have completely failed. This was taken
note of by our judgment in Madras Petrochem Ltd. and Anr. v.
Board for Industrial and Financial Reconstruction and Ors.,
(2016) 4 SCC 1:
“40. An interesting pointer to the direction Parliament
has taken after enactment of the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 is also of some relevance in
this context. The Eradi Committee Report relating to
insolvency and winding up of companies dated 31-7-
2000, observed that out of 3068 cases referred to
BIFR from 1987 to 2000 all but 1062 cases have been
disposed of. Out of the cases disposed of, 264 cases
were revived, 375 cases were under negotiation for
revival process, 741 cases were recommended for
winding up, and 626 cases were dismissed as not
maintainable. These facts and figures speak for
themselves and place a big question mark on the utility
of the Sick Industrial Companies (Special Provisions)
Act, 1985. The Committee further pointed out that
effectiveness of the Sick Industrial Companies (Special
Provisions) Act, 1985 as has been pointed out earlier,
has been severely undermined by reason of the
enormous delays involved in the disposal of cases by
BIFR. (See Paras 5.8, 5.9 and 5.15 of the Report.)
(xii) brother,
(xiii) sister,
(xiv) brother's son and daughter,
(xv) sister's son and daughter,
(xvi) father's father and mother,
(xvii) mother's father and mother,
(xviii) father's brother and sister,
(xix) mother's brother and sister, and
(b) wherever the relation is that of a son, daughter, sister or brother,
their spouses shall also be included;”
90
Consequently, the Committee recommended that the
Sick Industrial Companies (Special Provisions) Act,
1985 be repealed and the provisions thereunder for
revival and rehabilitation should be telescoped into the
structure of the Companies Act, 1956 itself.
41. Pursuant to the Eradi Committee Report, the
Companies Act was amended in 2002 by providing for
the constitution of a National Company Law Tribunal
as a substitute for the Company Law Board, the High
Court, BIFR and AAIFR. The Eradi Committee Report
was further given effect to by inserting Sections 424-A
to 424-H into the Companies Act, 1956 which, with a
few changes, mirrored the provisions of Sections 15 to
21 of the Sick Industrial Companies (Special
Provisions) Act, 1985. Interestingly, the Companies
Amendment Act, 2002 omitted a provision similar to
Section 22(1) of the Sick Industrial Companies
(Special Provisions) Act, 1985. Consequently, creditors
were given liberty to file suits or initiate other
proceedings for recovery of dues despite pendency of
proceedings for the revival or rehabilitation of sick
companies before the National Company Law Tribunal.
42. This Amendment Act came under challenge, which
challenge culminated in the Constitution Bench
decision in Union of India v. R, Gandhi, President,
Madras Bar Association, (2010) 11 SCC 10 by which
the amendments were upheld, with certain changes
recommended by the Constitution Bench of this Court.
43. Close on the heels of the amendment made to the
Companies Act came the Sick Industrial Companies
(Special Provisions) Repeal Act, 2003. This particular
Act was meant to repeal the Sick Industrial Companies
(Special Provisions) Act, 1985 consequent to some of
its provisions being telescoped into the Companies
Act. Thus, the Companies Amendment Act, 2002 and
the SICA Repeal Act formed part of one legislative
scheme, and neither has yet been brought into force.
In fact, even the Companies Act, 2013, which repeals
the Companies Act, 1956, contains Chapter 19
consisting of Sections 253 to 269 dealing with revival
and rehabilitation of sick companies along the lines of
Sections 424-A to 424-H of the amended Companies
Act, 1956. Conspicuous by its absence is a provision
91
akin to Section 22(1) of the Sick Industrial Companies
(Special Provisions) Act, 1985 in the 2013 Act.
However, this Chapter is also yet to be brought into
force. These statutory provisions, though not yet
brought into force, are also an important pointer to the
fact that Section 22(1) of the Sick Industrial Companies
(Special Provisions) Act, 1985 has been statutorily
sought to be excluded, Parliament veering around from
wanting to protect sick industrial companies and
rehabilitate them to giving credence to the public
interest contained in the recovery of public monies
owing to banks and financial institutions. These
provisions also show that the aforesaid construction of
the provisions of the Securitisation and Reconstruction
of Financial Assets and Enforcement of Security
Interest Act, 2002 vis-à-vis the Sick Industrial
Companies (Special Provisions) Act, 1985, leans in
favour of creditors being able to realise their debts
outside the court process over sick industrial
companies being revived or rehabilitated. In fact,
another interesting document is the Report on Trend
and Progress of Banking in India 2011-2012 for the
year ended 30-6-2012 submitted by Reserve Bank of
India to the Central Government in terms of Section
36(2) of the Banking Regulation Act, 1949. In Table
IV.14 the Report provides statistics regarding trends in
non-performing assets bank-wise, group-wise. As per
the said Table, the opening balance of non-performing
assets in public sector banks for the year 2011-2012
was Rs 746 billion but the closing balance for 2011-
2012 was Rs 1172 billion only. The total amount
recovered through the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 during 2011-2012
registered a decline compared to the previous year,
but, even then, the amounts recovered under the said
Act constituted 70% of the total amount recovered. The
amounts recovered under the Recovery of Debts Due
to Banks and Financial Institutions Act, 1993
constituted only 28%. All this would go to show that the
amounts that public sector banks and financial
institutions have to recover are in staggering figures
and at long last at least one statutory measure has
proved to be of some efficacy. This Court would be
92
loathe to give such an interpretation as would thwart
the recovery process under the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 which Act alone seems to
have worked to some extent at least.” (emphasis
supplied)
63. These two enactments were followed by the Securitization
and Reconstruction of Financial Assets and Enforcement of
Securities Interest Act, 2002. As has been noted hereinabove,
amounts recovered under the said Act recorded improvement over
the previous two enactments, but this was yet found to be
inadequate.
64.The Code was passed after great deliberation and pursuant
to various Committee Reports, as has been held in Innoventive
Industries Ltd. v. ICICI Bank & Anr. (2018) 1 SCC 407 at
paragraph 12. The Statement of Objects and Reasons, which is
reproduced in the said paragraph, makes it clear that the existing
framework for insolvency and bankruptcy was not only inadequate
and ineffective, but resulted in undue delays in resolution. One of
the primary objects of the Code, therefore, is to resolve such
matters in a time bound manner. This would not only support the
development of credit markets and encourage entrepreneurship,
but would also improve ease of doing business and facilitate more
investment, leading to higher economic growth and development.
93
65.Paragraph 16 of the said judgment refers to the report of
November, 2015 of the Bankruptcy Law Reforms Committee and
refers to speed being of essence as follows:
“Speed is of essence
Speed is of essence for the working of the bankruptcy
code, for two reasons. First, while the “calm period”
can help keep an organisation afloat, without the full
clarity of ownership and control, significant decisions
cannot be made. Without effective leadership, the firm
will tend to atrophy and fail. The longer the delay, the
more likely it is that liquidation will be the only answer.
Second, the liquidation value tends to go down with
time as many assets suffer from a high economic rate
of depreciation.
From the viewpoint of creditors, a good realisation can
generally be obtained if the firm is sold as a going
concern. Hence, when delays induce liquidation, there
is value destruction. Further, even in liquidation, the
realisation is lower when there are delays. Hence,
delays cause value destruction. Thus, achieving a high
recovery rate is primarily about identifying and
combating the sources of delay.”
66.The Committee then chose certain principles within which
the new Insolvency and Bankruptcy Code would work. One of
them is that the Code will ensure a time bound process, which will
not be extended, to better preserve the economic value of the
asset (see Principle No.8 set out at page 427 of Innoventive
Industries (supra.)).
67.After setting out the Scheme of the Code, this Court further
went on to hold:
“31. The rest of the insolvency resolution process is
also very important. The entire process is to be
94
completed within a period of 180 days from the date of
admission of the application under Section 12 and can
only be extended beyond 180 days for a further period
of not exceeding 90 days if the committee of creditors
by a voting of 75% of voting shares so decides. It can
be seen that time is of essence in seeing whether the
corporate body can be put back on its feet, so as to
stave off liquidation.”
xxx xxx xxx
33. Under Section 30, any person who is interested in
putting the corporate body back on its feet may submit
a resolution plan to the resolution professional, which is
prepared on the basis of an information memorandum.
This plan must provide for payment of insolvency
resolution process costs, management of the affairs of
the corporate debtor after approval of the plan, and
implementation and supervision of the plan. It is only
when such plan is approved by a vote of not less than
75% of the voting share of the financial creditors and
the adjudicating authority is satisfied that the plan, as
approved, meets the statutory requirements mentioned
in Section 30, that it ultimately approves such plan,
which is then binding on the corporate debtor as well
as its employees, members, creditors, guarantors and
other stakeholders. Importantly, and this is a major
departure from previous legislation on the subject, the
moment the adjudicating authority approves the
resolution plan, the moratorium order passed by the
authority under Section 14 shall cease to have effect.
The scheme of the Code, therefore, is to make an
attempt, by divesting the erstwhile management of its
powers and vesting it in a professional agency, to
continue the business of the corporate body as a going
concern until a resolution plan is drawn up, in which
event the management is handed over under the plan
so that the corporate body is able to pay back its debts
and get back on its feet. All this is to be done within a
period of 6 months with a maximum extension of
another 90 days or else the chopper comes down and
the liquidation process begins.”
95
68.It is in this backdrop that we must consider the provisions of
the Code, insofar as the Code requires either that the corporate
debtor be taken over by another management and run as a going
concern or, if that fails, go into liquidation. Some of the relevant
provisions of the Code, insofar as this case is concerned, are set
out hereinbelow:
“5. (12) “insolvency commencement date” means
the date of admission of an application for initiating
corporate insolvency resolution process by the
Adjudicating Authority under Sections 7, 9 or Section
10, as the case may be:
Provided that where the interim resolution professional
is not appointed in the order admitting application
under Section 7, 9 or Section 10, the insolvency
commencement date shall be the date on which such
interim resolution professional is appointed by the
Adjudicating Authority;
xxx xxx xxx
(14) “insolvency resolution process period” means
the period of one hundred and eighty days beginning
from the insolvency commencement date and ending
on one hundred and eightieth day;
xxx xxx xxx
(25) “resolution applicant” means a person, who
individually or jointly with any other person, submits a
resolution plan to the resolution professional pursuant
to the invitation made under clause (h) of sub-section
(2) of Section 25;
(26) “resolution plan” means a plan proposed
by resolution applicant for insolvency resolution of the
corporate debtor as a going concern in accordance
with Part II;
(27) “resolution professional”, for the purposes of
this Part, means an insolvency professional appointed
96
to conduct the corporate insolvency resolution process
and includes an interim resolution professional;
xxx xxx xxx
7. Initiation of corporate insolvency resolution
process by financial creditor.—(1) A financial
creditor either by itself or jointly with other financial
creditors, or any other person on behalf of the financial
creditor, as may be notified by the Central
Government, may file an application for initiating
corporate insolvency resolution process against a
corporate debtor before the Adjudicating Authority
when a default has occurred.
Explanation.—For the purposes of this sub-section, a
default includes a default in respect of a financial debt
owed not only to the applicant financial creditor but to
any other financial creditor of the corporate debtor.
(2) The financial creditor shall make an application
under sub-section (1) in such form and manner and
accompanied with such fee as may be prescribed.
(3) The financial creditor shall, along with the
application furnish—
(a) record of the default recorded with the information
utility or such other record or evidence of default as
may be specified;
(b) the name of the resolution professional proposed to
act as an interim resolution professional; and
(c) any other information as may be specified by the
Board.
(4) The Adjudicating Authority shall, within fourteen
days of the receipt of the application under sub-section
(2), ascertain the existence of a default from the
records of an information utility or on the basis of other
evidence furnished by the financial creditor under sub-
section (3).
(5) Where the Adjudicating Authority is satisfied that—
(a) a default has occurred and the application under
sub-section (2) is complete, and there is no disciplinary
proceedings pending against the proposed resolution
97
professional, it may, by order, admit such application;
or
(b) default has not occurred or the application under
sub-section (2) is incomplete or any disciplinary
proceeding is pending against the proposed resolution
professional, it may, by order, reject such application:
Provided that the Adjudicating Authority shall, before
rejecting the application under clause (b) of sub-
section (5), give a notice to the applicant to rectify the
defect in his application within seven days of receipt of
such notice from the Adjudicating Authority.
(6) The corporate insolvency resolution process shall
commence from the date of admission of the
application under sub-section (5).
(7) The Adjudicating Authority shall communicate—
(a) the order under clause (a) of sub-section (5) to the
financial creditor and the corporate debtor;
(b) the order under clause (b) of sub-section (5) to the
financial creditor,
within seven days of admission or rejection of such
application, as the case may be.
xxx xxx xxx
12. Time-limit for completion of insolvency
resolution process.—(1) Subject to sub-section (2),
the corporate insolvency resolution process shall be
completed within a period of one hundred and eighty
days from the date of admission of the application to
initiate such process.
(2) The resolution professional shall file an application
to the Adjudicating Authority to extend the period of the
corporate insolvency resolution process beyond one
hundred and eighty days, if instructed to do so by a
resolution passed at a meeting of the committee of
creditors by a vote of sixty-six per cent of the voting
shares.
(3) On receipt of an application under sub-section (2),
if the Adjudicating Authority is satisfied that the subject-
matter of the case is such that corporate insolvency
98
resolution process cannot be completed within one
hundred and eighty days, it may by order extend the
duration of such process beyond one hundred and
eighty days by such further period as it thinks fit, but
not exceeding ninety days:
Provided that any extension of the period of corporate
insolvency resolution process under this section shall
not be granted more than once.
xxx xxx xxx
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 29-A 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 payment of other debts of the corporate
debtor;
(b) provides for the payment of the debts of operational
creditors in such manner as may be specified by the
Board which shall not be less than the amount to be
paid to the operational creditors in the event of a
liquidation of the corporate debtor under Section 53;
(c) provides for the management of the affairs of the
corporate debtor after approval of the resolution plan;
(d) the implementation and supervision of the
resolution plan;
(e) does not contravene any of the provisions of the
law for the time being in force;
(f) conforms to such other requirements as may be
specified by the Board.
Explanation.—For the purposes of clause (e), if any
approval of shareholders is required under the
Companies Act, 2013 (18 of 2013) or any other law for
the time being in force for the implementation of
actions under the resolution plan, such approval shall
99
be deemed to have been given and it shall not be a
contravention of that Act or law.
(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, 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 29-A and may require the resolution
professional to invite a fresh resolution plan where no
other resolution plan is available with it:
Provided further that where the resolution applicant
referred to in the first proviso is ineligible under clause
(c) of Section 29-A, the resolution applicant shall be
allowed by the committee of creditors such period, not
exceeding thirty days, to make payment of overdue
amounts in accordance with the proviso to clause (c) of
Section 29-A:
Provided also that nothing in the second proviso shall
be construed as extension of period for the purposes
of the proviso to sub-section (3) of Section 12, and the
corporate insolvency resolution process shall be
completed within the period specified in that sub-
section.
Provided also that the eligibility criteria in Section 29-A
as amended by the Insolvency and Bankruptcy Code
(Amendment) Ordinance, 2018 (Ord. 6 of 2018) shall
apply to the resolution applicant who has not submitted
resolution plan as on the date of commencement of the
Insolvency and Bankruptcy Code (Amendment)
Ordinance, 2018.
(5) The resolution applicant may attend the meeting of
the committee of creditors in which the resolution plan
100
of the applicant is considered:
Provided that the resolution applicant shall not have a
right to vote at the meeting of the committee of
creditors unless such resolution applicant is also a
financial creditor.
(6) The resolution professional shall submit the
resolution plan as approved by the committee of
creditors to the Adjudicating Authority.
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:
Provided that the Adjudicating Authority shall, before
passing an order for approval of resolution plan under
this sub-section, satisfy that the resolution plan has
provisions for its effective implementation.
(2) Where the Adjudicating Authority is satisfied that
the resolution plan does not confirm to the
requirements referred to in sub-section (1), it may, by
an order, reject the resolution plan.
(3) After the order of approval under sub-section (1),—
(a) the moratorium order passed by the Adjudicating
Authority under Section 14 shall cease to have effect;
and
(b) the resolution professional shall forward all records
relating to the conduct of the corporate insolvency
resolution process and the resolution plan to the Board
to be recorded on its database.
(4) The resolution applicant shall, pursuant to the
resolution plan approved under sub-section (1), obtain
the necessary approval required under any law for the
time being in force within a period of one year from the
date of approval of the resolution plan by the
Adjudicating Authority under sub-section (1) or within
101
such period as provided for in such law, whichever is
later:
Provided that where the resolution plan contains a
provision for combination, as referred to in Section 5 of
the Competition Act, 2002 (12 of 2003), the resolution
applicant shall obtain the approval of the Competition
Commission of India under that Act prior to the
approval of such resolution plan by the committee of
creditors.
32. Appeal.—Any appeal from an order approving the
resolution plan shall be in the manner and on the
grounds laid down in sub-section (3) of Section 61.
xxx xxx xxx
33. Initiation of liquidation.—(1) Where the
Adjudicating Authority,—
(a) before the expiry of the insolvency resolution
process period or the maximum period permitted for
completion of the corporate insolvency resolution
process under Section 12 or the fast track corporate
insolvency resolution process under Section 56, as the
case may be, does not receive a resolution plan under
sub-section (6) of Section 30; or
(b) rejects the resolution plan under Section 31 for the
non-compliance of the requirements specified therein,
it shall—
(i) pass an order requiring the corporate debtor to be
liquidated in the manner as laid down in this Chapter;
(ii) issue a public announcement stating that the
corporate debtor is in liquidation; and
(iii) require such order to be sent to the authority with
which the corporate debtor is registered.
(2) Where the resolution professional, at any time
during the corporate insolvency resolution process but
before confirmation of resolution plan, intimates the
Adjudicating Authority of the decision of the committee
of creditors approved by not less than sixty-six per cent
of the voting share to liquidate the corporate debtor,
the Adjudicating Authority shall pass a liquidation order
102
as referred to in sub-clauses (i), (ii) and (iii) of clause
(b) of sub-section (1).
(3) Where the resolution plan approved by the
Adjudicating Authority is contravened by the concerned
corporate debtor, any person other than the corporate
debtor, whose interests are prejudicially affected by
such contravention, may make an application to the
Adjudicating Authority for a liquidation order as referred
to in sub-clauses (i), (ii) and (iii) of clause (b) of sub-
section (1).
(4) On receipt of an application under sub-section (3),
if the Adjudicating Authority determines that the
corporate debtor has contravened the provisions of the
resolution plan, it shall pass a liquidation order as
referred to in sub-clauses (i), (ii) and (iii) of clause (b)
of sub-section (1).
(5) Subject to Section 52, when a liquidation order has
been passed, no suit or other legal proceeding shall be
instituted by or against the corporate debtor:
Provided that a suit or other legal proceeding may be
instituted by the liquidator, on behalf of the corporate
debtor, with the prior approval of the Adjudicating
Authority.
(6) The provisions of sub-section (5) shall not apply to
legal proceedings in relation to such transactions as
may be notified by the Central Government in
consultation with any financial sector regulator.
(7) The order for liquidation under this section shall be
deemed to be a notice of discharge to the officers,
employees and workmen of the corporate debtor,
except when the business of the corporate debtor is
continued during the liquidation process by the
liquidator.
xxx xxx xxx
60. Adjudicating Authority for corporate persons.—
(1) The Adjudicating Authority, in relation to insolvency
resolution and liquidation for corporate persons
including corporate debtors and personal guarantors
thereof shall be the National Company Law Tribunal
having territorial jurisdiction over the place where the
103
registered office of the corporate person is located.
(2) Without prejudice to sub-section (1) and
notwithstanding anything to the contrary contained in
this Code, where a corporate insolvency resolution
process or liquidation proceeding of a corporate debtor
is pending before a National Company Law Tribunal,
an application relating to the insolvency resolution
or liquidation or bankruptcy of a corporate guarantor or
personal guarantor, as the case may be, of such
corporate debtor shall be filed before such National
Company Law Tribunal.
(3) An insolvency resolution process or liquidation or
bankruptcy proceeding of a corporate guarantor or
personal guarantor, as the case may be, of the
corporate debtor pending in any court or tribunal shall
stand transferred to the Adjudicating Authority dealing
with insolvency resolution process or liquidation
proceeding of such corporate debtor.
(4) The National Company Law Tribunal shall be
vested with all the powers of the Debts Recovery
Tribunal as contemplated under Part III of this Code for
the purpose of sub-section (2).
(5) Notwithstanding anything to the contrary contained
in any other law for the time being in force, the
National Company Law Tribunal shall have jurisdiction
to entertain or dispose of—
(a) any application or proceeding by or against the
corporate debtor or corporate person;
(b) any claim made by or against the corporate debtor
or corporate person, including claims by or against any
of its subsidiaries situated in India; and
(c) any question of priorities or any question of law or
facts, arising out of or in relation to the insolvency
resolution or liquidation proceedings of the corporate
debtor or corporate person under this Code.
(6) Notwithstanding anything contained in the
Limitation Act, 1963 (36 of 1963) or in any other law for
the time being in force, in computing the period of
limitation specified for any suit or application by or
against a corporate debtor for which an order of
104
moratorium has been made under this Part, the period
during which such moratorium is in place shall be
excluded.
61. Appeals and Appellate Authority . - (1)
Notwithstanding anything to the contrary contained
under the Companies Act, 2013, any person aggrieved
by the order of the Adjudicating Authority under this
part may prefer an appeal to the National Company
Law Appellate Tribunal.
(2) Every appeal under sub-section (1) shall be filed
within thirty days before the National Company Law
Appellate Tribunal:
Provided that the National Company Law Appellate
Tribunal may allow an appeal to be filed after the
expiry of the said period of thirty days if it is satisfied
that there was sufficient cause for not filing the appeal
but such period shall not exceed fifteen days.
(3) An appeal against an order approving a resolution
plan under Section 31 may be filed on the following
grounds, namely—
(i) the approved resolution plan is in contravention of
the provisions of any law for the time being in force;
(ii) there has been material irregularity in exercise of
the powers by the resolution professional during the
corporate insolvency resolution period;
(iii) the debts owed to operational creditors of the
corporate debtor have not been provided for in the
resolution plan in the manner specified by the Board;
(iv) the insolvency resolution process costs have not
been provided for repayment in priority to all other
debts; or
(v) the resolution plan does not comply with any other
criteria specified by the Board.
(4) An appeal against a liquidation order passed under
Section 33 may be filed on grounds of material
irregularity or fraud committed in relation to such a
liquidation order.
62. Appeal to Supreme Court .—(1) Any person
105
aggrieved by an order of the National Company Law
Appellate Tribunal may file an appeal to the Supreme
Court on a question of law arising out of such order
under this Code within forty-five days from the date of
receipt of such order.
(2) The Supreme Court may, if it is satisfied that a
person was prevented by sufficient cause from filing an
appeal within forty-five days, allow the appeal to be
filed within a further period not exceeding fifteen days.
xxx xxx xxx
64. Expeditious disposal of applications.—(1)
Where an application is not disposed of or an order is
not passed within the period specified in this Code, the
National Company Law Tribunal or the National
Company Law Appellate Tribunal, as the case may be,
shall record the reasons for not doing so within the
period so specified; and the President of the National
Company Law Tribunal or the Chairperson of the
National Company Law Appellate Tribunal, as the case
may be, may, after taking into account the reasons so
recorded, extend the period specified in the Act but not
exceeding ten days.
(2) No injunction shall be granted by any court, tribunal
or authority in respect of any action taken, or to be
taken, in pursuance of any power conferred on the
National Company Law Tribunal or the National
Company Law Appellate Tribunal under this Code.”
69.Since the present case deals, on facts, with financial
creditors, we may set out how the corporate insolvency resolution
process is to work from the inception. Before admission of an
application under Section 7 by a financial creditor, the Adjudicating
Authority is, under Section 7(4), to first ascertain the existence of a
default within 14 days of receipt of the application, as specified in
106
Section 7(4). Upon satisfaction that such default has occurred, it
may then admit such application, subject to rectification of defects,
which the proviso in Section 7(5) says must be done within 7 days
of receipt of such notice from the Adjudicating Authority by the
applicant. The time frame within which ascertainment of default is
to take place, as well as the time within which the defect is to be
rectified, have both been held by a judgment of this Court to be
directory in nature, the reason being that the stage of these
provisions is before admission of the application (see Surendra
Trading Co. v. Juggilal Kamlapat Jute Mills Company Ltd. &
Ors. (2017) 16 SCC 143). The corporate insolvency resolution
process commences from the date of admission of the application
vide Section 7(6). Section 7(7) makes it incumbent upon the
Adjudicating Authority to communicate the order accepting or
rejecting the application to the financial creditor and the corporate
debtor within a period of 7 days of such admission or rejection.
70.The time limit for completion of the insolvency resolution
process is laid down in Section 12. A period of 180 days from the
date of admission of the application is given by Section 12(1).
This is extendable by a maximum period of 90 days only if the
Committee of Creditors, by a vote of 66%
2
, votes to extend the
2
It is pertinent to note that the Insolvency and Bankruptcy Code (Second
Amendment) Act, 2018 (26 of 2018), inter alia amended the Code, with retrospective
effect from 6
th
June, 2018, in so far as the requirement in certain sections of approval
of 75% of the Committee of Creditors for various decisions was reduced to 51% in
107
said period, and only if the Adjudicating Authority is satisfied that
such process cannot be completed within 180 days. The authority
may then, by order, extend the duration of such process by a
maximum period of 90 days (see Sections 12(2) and 12(3)). What
is also of importance is the proviso to Section 12(3) which states
that any extension of the period under Section 12 cannot be
granted more than once. This has to be read with the third proviso
to Section 30(4), which states that the maximum period of 30 days
mentioned in the second proviso is allowable as the only exception
to the extension of the aforesaid period not being granted more
than once.
71.What is important to note is that a consequence is provided,
in the event that the said period ends either without receipt of a
resolution plan or after rejection of a resolution plan under Section
31. This consequence is provided by Section 33, which makes it
clear that when either of these two contingencies occurs, the
corporate debtor is required to be liquidated in the manner laid
down in Chapter III. Section 12, construed in the light of the object
sought to be achieved by the Code, and in the light of the
consequence provided by Section 33, therefore, makes it clear
Section 21(8) (i.e. the minimum percentage of votes required for any decision of the
Committee, where not otherwise provided for in the Code), and to 66% in Sections
12(2) (i.e. extension of time for completion of the process by 90 days), 22(2) (i.e.
appointment of resolution professional), 27(2) (i.e. replacement of resolution
professional), 28(3) (i.e. approval for certain actions by the resolution professional),
30(4) (i.e. approval of resolution plan), and 33(2) (i.e. initiation of liquidation).
108
that the periods previously mentioned are mandatory and cannot
be extended.
72. In fact, even the literal language of Section 12(1) makes it
clear that the provision must read as being mandatory. The
expression “shall be completed” is used. Further, sub-section (3)
makes it clear that the duration of 180 days may be extended
further “but not exceeding 90 days”, making it clear that a
maximum of 270 days is laid down statutorily. Also, the proviso to
Section 12 makes it clear that the extension “shall not be granted
more than once”.
73. After admission of the application under Section 7 by the
Adjudicating Authority, the scheme of the Code is as follows:
.(i) Under Sections 13 to 15, a moratorium is declared; a public
announcement of the initiation of the corporate insolvency
resolution process and call for submission of claims is made;
and an Interim Resolution Professional is to be appointed
under Section 16 of the Code. This action is to be completed
by the Adjudicating Authority within a period of 14 days from
the insolvency commencement date, i.e., the date of
admission of the application under Section 7 by the
Adjudicating Authority.
.
.(ii) Under Section 17, the corporate debtor’s affairs are to be
109
managed by the Interim Resolution Professional so
appointed, and the Board of Directors of the corporate
debtor shall stand superseded. The officers and managers
of the corporate debtor are now to report to the Interim
Resolution Professional, who has the authority to act on
behalf of the corporate debtor.
.
.(iii) Under Section 18(1), some of the important duties of this
Interim Resolution Professional are set out, which are to
collect all information relating to the financial position of the
corporate debtor and, most importantly, to constitute a
Committee of Creditors. That this has to be done at the very
earliest, is clear from the scheme of the corporate insolvency
resolution process which, as has been stated earlier, cannot
exceed the maximum period of 270 days from the date of
admission of the financial creditors’ application.
.
.(iv) Under Section 21, the Interim Resolution Professional is to
constitute this Committee of Creditors after collating all
claims received against the corporate debtor and after
determination of the financial position of the corporate
debtor, both of which need to be done at the very earliest.
This Committee of Creditors is to comprise of financial
creditors of the corporate debtor. All decisions of this
110
Committee of Creditors are to be taken by a majority vote of
not less than 51% of the voting share of each financial
creditor.
.
.(v) Under Section 22, the first meeting of the Committee of
Creditors is to be held within 7 days of its constitution in
order to appoint a Resolution Professional. The Committee
of Creditors either continues the Interim Resolution
Professional or replaces the Interim Resolution Professional
by a majority vote of 66%. The application to replace the
Interim Resolution Professional is then to be sent to the
Adjudicating Authority, who is to forward the same to the
Insolvency and Bankruptcy Board of India (hereinafter
referred to as the “IBBI”) for confirmation. Upon such
confirmation, the Adjudicating Authority then appoints the
Resolution Professional. In case the IBBI does not confirm
the name of the proposed Resolution Professional within 10
days of receipt of the same, the Adjudicating Authority is
then to direct the Interim Resolution Professional to continue
to function as the Resolution Professional until such time as
the IBBI confirms the appointment of the Resolution
Professional.
.
.(vi) It is this Resolution Professional who is then to conduct the
111
corporate insolvency resolution process, which really begins
at this stage (see Section 23). Section 25 then lays down
some of the duties of this Resolution Professional, which are
to continue the business operations of the corporate debtor,
subject to the prior approval of the Committee of Creditors
over the matters stated in Section 28. One of the important
duties of the Resolution Professional under Section 25 is to
invite prospective resolution applicants to submit resolution
plans.
.
.(vii) Under Section 29, the Resolution Professional is to prepare
an information memorandum giving relevant information, as
may be specified by the IBBI, to persons interested in
formulating a resolution plan.
.
.(viii) Section 30 is an important provision in that a resolution
applicant may submit a resolution plan to the Resolution
Professional, who is then to examine the said plan to see
that it conforms to the requirements of Section 30(2). Once
this plan conforms to such requirements, the plan is then to
be presented to the Committee of Creditors for its approval
under Section 30(3). This can then be approved by the
Committee of Creditors by a vote of not less than 66% under
sub-section (4). What is important to note is that the
112
Committee of Creditors shall not approve a resolution plan
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. Once approved by the Committee of Creditors,
the resolution plan is to be submitted to the Adjudicating
Authority under Section 31 of the Code. It is at this stage
that a judicial mind is applied by the Adjudicating Authority to
the resolution plan so submitted, who then, after being
satisfied that the plan meets (or does not meet) the
requirements mentioned in Section 30, may either approve
or reject such plan.
.
.(ix) An appeal from an order approving such plan is only on the
limited grounds laid down in Section 61(3). However, an
appeal from an order rejecting a resolution plan would also
lie under Section 61.
.
.(x) As has been stated hereinbefore, the liquidation process gets
initiated under Section 33 if, (1) either no resolution plan is
submitted within the time specified under Section 12, or a
resolution plan has been rejected by the Adjudicating
Authority; (2) where the Resolution Professional, before
confirmation of the resolution plan, intimates the Adjudicating
113
Authority of the decision of the Committee of Creditors to
liquidate the corporate debtor; or (3) where the resolution
plan approved by the Adjudicating Authority is contravened
by the concerned corporate debtor. Any person other than
the corporate debtor whose interests are prejudicially
affected by such contravention may apply to the Adjudicating
Authority, who may then pass a liquidation order on such
application.
74.Regulation 40A of the CIRP Regulations presents a model
timeline of the corporate insolvency resolution process, on the
basis that the time available is 180 days. It states as follows:-
“40A. Model time-line for corporate insolvency res-
olution process.
The following Table presents a model timeline of corpo-
rate insolvency resolution process on the assumption
that the interim resolution professional is appointed on
the date of commencement of the process and the
time available is hundred and eighty days:
Section/Regulation
Description of
Activity
Norm
Latest
Timeline
Section 16(1)
Commencement
of CIRP and
appointment of
IRP
…. T
Regulation 6(1)
Public
announcement
inviting claims
Within 3 Days of
Appointment of
IRP
T+3
Section 15(1)
(c)/Regulations 6(2)
(c) and 12 (1)
Submission of
claims
For 14 Days
from
Appointment of
T+14
114
IRP
Regulation 12(2)
Submission of
claims
Up to 90
th
day of
commencement
T+90
Regulation 13(1)
Verification of
claims received
under regulation
12(1)
Within 7 days
from the receipt
of the claim
T+21
Regulation 13(2)
Verification of
claims received
under regulation
12(2)
T+97
Section 21(6A)
(b)/Regulation 16A
Application for
appointment of
AR
Within 2 days
from verification
of claims
received under
regulation 12(1)
T+23
Regulation 17(1)
Report certifying
constitution of
CoC
T+23
Section
22(1)/Regulation
19(1)
1
st
meeting of
the CoC
Within 7 days of
the constitution
of the CoC, but
with seven days’
notice
T+30
Section 22(2)
Resolution to
appoint RP by
the CoC
In the first
meeting of the
CoC
T+30
Section 16(5)
Appointment of
RP
On approval by
the AA
…..
Regulation 17(3)
IRP performs
the functions of
RP till the RP is
appointed.
If RP is not
appointed by
40
th
day of
commencement
T+40
Regulation 27
Appointment of
valuer
Within 7 days of
appointment of
RP, but not later
than 40
th
day of
commencement
T+47
Section
12A/Regulation 30A
Submission of
application for
withdrawal of
application
admitted.
Before issue of
EoI
W
115
CoC to dispose
of the
application
Within 7 days of
its receipt or 7
days of
constitution of
CoC, whichever
is later.
W+7
Filing
application of
withdrawal, if
approved by
CoC with 90 %
majority voting,
by RP to AA
Within 3 days of
approval by
CoC
W+10
Regulation 35A
RP to form an
opinion on
preferential and
other
transactions
Within 75 days
of the
commencement
T+75
RP to make a
determination
on preferential
and other
transactions
Within 115 days
of
commencement
T+115
RP to file
applications to
AA for
appropriate
relief
Within 135 days
to
commencement
T+135
Regulation 36(1)
Submission of
IM to CoC
Within 2 weeks
of appointment
of RP, but not
later than 54
th
day of
commencement
T+54
Regulation 36A Publish Form GWithin 75 days
of
commencement
T+75
Invitation of EoI
Submission of
EoI
At least 15 days
from issue of
EoI (Assume 15
days)
T+90
116
Provisional List
of RAs by RP
Within 10 days
from the last
day of receipt of
EoI
T+100
Submission of
objections to
provisional list
For 5 days from
the date of
provisional list
T+105
Final List of RAs
by RP
Within 10 days
of the receipt of
objections
T+115
Regulation 36B
Issue of RFRP,
including
Evaluation
Matrix and IM
Within 5 days of
the issue of the
provisional list
T+105
Receipt of
Resolution
Plans
At least 30 days
from issue of
RFRP (Assume
30 days)
T+135
Regulation 39(4)
Submission of
CoC approved
Resolution Plan
to AA
As soon as
approved by the
CoC
T+165
Section 31(1)
Approval of
resolution plan
by AA
T=180
AA: Adjudicating Authority; AR: Authorised
Representative; CIRP: Corporate Insolvency
Resolution Process; CoC: Committee of Creditors; EoI:
Expression of Interest; IM: Information Memorandum;
IRP: Interim Resolution Professional; RA: Resolution
Applicant; RP: Resolution Professional; RFRP:
Request for Resolution Plan.”
It is of utmost importance for all authorities concerned to follow this
model timeline as closely as possible.
75.What has now to be determined is whether any challenge
can be made at various stages of the corporate insolvency
resolution process. Suppose a resolution plan is turned down at
117
the threshold by a Resolution Professional under Section 30(2). At
this stage is it open to the concerned resolution applicant to
challenge the Resolution Professional’s rejection? It is settled law
that a statute is designed to be workable, and the interpretation
thereof should be designed to make it so workable. In
Commissioner of Income Tax, Delhi v. S. Teja Singh, [1959]
Supp. 1 S.C.R. 394, this Court said, at page 403:
“We must now refer to an aspect of the question, which
strongly reinforces the conclusion stated above. On the
construction contended for by the respondent, S.18-
A(9)(b) would become wholly nugatory, as ss.22(1) and
22(2) can have no application to advance estimates to
be furnished under s.18-A(3), and if we accede to this
contention, we must hold that though the legislature
enacted s.18-A(9)(b) with the very object of bringing
the failure to send estimates under s.18-A(3) within the
operation of s.28, it signally failed to achieve its object.
A construction which leads to such a result must, if that
is possible, be avoided, on the principle expressed in
the maxim, "ut res magis valeat quam pereat". Vide
Curtis v. Stovin [1889] 22 Q.B.D.513 and in particular
the following observations of Fry, L. J., at page 519:
"The only alternative construction offered to us
would lead to this result, that the plain intention
of the legislature has entirely failed by reason of
a slight inexactitude in the language of the
section. If we were to adopt this construction, we
should be construing the Act in order to defeat its
object rather than with a view to carry its object
into effect".
Vide also Craies on Statute Law, p. 90 and Maxwell on
The Interpretation of Statutes, Tenth Edn., pp. 236-237.
"A statute is designed", observed Lord Dunedin in
Whitney v. Commissioners of Inland Revenue [1925]
10 Tax Cas.88, 110, "to be workable, and the
interpretation thereof by a court should be to secure
118
that object, unless crucial omission or clear direction
makes that end unattainable".
76.Given the timeline referred to above, and given the fact that
a resolution applicant has no vested right that his resolution plan
be considered, it is clear that no challenge can be preferred to the
Adjudicating Authority at this stage. A writ petition under Article
226 filed before a High Court would also be turned down on the
ground that no right, much less a fundamental right, is affected at
this stage. This is also made clear by the first proviso to Section
30(4), whereby a Resolution Professional may only invite fresh
resolution plans if no other resolution plan has passed muster.
77. However, it must not be forgotten that a Resolution
Professional is only to “examine” and “confirm” that each
resolution plan conforms to what is provided by Section 30(2).
Under Section 25(2)(i), the Resolution Professional shall
undertake to present all resolution plans at the meetings of the
Committee of Creditors. This is followed by Section 30(3), which
states that 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). This
provision has to be read in conjunction with Section 25(2)(i), and
with the second proviso to Section 30(4), which provides that
where a resolution applicant is found to be ineligible under Section
119
29A(c), the resolution applicant shall be allowed by the Committee
of Creditors such period, not exceeding 30 days, to make payment
of overdue amounts in accordance with the proviso to Section
29A(c). A conspectus of all these provisions would show that the
Resolution Professional is required to examine that the resolution
plan submitted by various applicants is complete in all respects,
before submitting it to the Committee of Creditors. The Resolution
Professional is not required to take any decision, but merely to
ensure that the resolution plans submitted are complete in all
respects before they are placed before the Committee of
Creditors, who may or may not approve it. The fact that the
Resolution Professional is also to confirm that a resolution plan
does not contravene any of the provisions of law for the time-being
in force, including Section 29A of the Code, only means that his
prima facie opinion is to be given to the Committee of Creditors
that a law has or has not been contravened. Section 30(2)(e)
does not empower the Resolution Professional to “decide” whether
the resolution plan does or does not contravene the provisions of
law. Regulation 36A of the CIRP Regulations specifically provides
as follows:-
“(8) The resolution professional shall conduct due
diligence based on the material on record in order to
satisfy that the prospective resolution applicant
complies with-
120
(a) the provisions of clause (h) of sub-section (2)
of section 25;
(b) the applicable provisions of section 29A,
and
(c) other requirements, as specified in the
invitation for expression of interest.
(9) The resolution professional may seek any
clarification or additional information or document from
the prospective resolution applicant for conducting due
diligence under sub-regulation (8).
(10) The resolution professional shall issue a
provisional list of eligible prospective resolution
applicants within ten days of the last date for
submission of expression of interest to the committee
and to all prospective resolution applicants who
submitted the expression of interest.
(11) Any objection to inclusion or exclusion of a
prospective resolution applicant in the provisional list
referred to in sub-regulation (10) may be made with
supporting documents within five days from the date of
issue of the provisional list.
(12) On considering the objections received under sub-
regulation (11), the resolution professional shall issue
the final list of prospective resolution applicants within
ten days of the last date for receipt of objections, to the
committee.”
78.Thus, the importance of the Resolution Professional is to
ensure that a resolution plan is complete in all respects, and to
conduct a due diligence in order to report to the Committee of
Creditors whether or not it is in order. Even though it is not
necessary for the Resolution Professional to give reasons while
submitting a resolution plan to the Committee of Creditors, it would
be in the fitness of things if he appends the due diligence report
carried out by him with respect to each of the resolution plans
121
under consideration, and to state briefly as to why it does or does
not conform to the law.
79.Take the next stage under Section 30. A Resolution
Professional has presented a resolution plan to the Committee of
Creditors for its approval, but the Committee of Creditors does not
approve such plan after considering its feasibility and viability, as
the requisite vote of not less than 66% of the voting share of the
financial creditors is not obtained. As has been mentioned
hereinabove, the first proviso to Section 30(4) furnishes the
answer, which is that all that can happen at this stage is to require
the Resolution Professional to invite a fresh resolution plan within
the time limits specified where no other resolution plan is available
with him. It is clear that at this stage again no application before
the Adjudicating Authority could be entertained as there is no
vested right or fundamental right in the resolution applicant to have
its resolution plan approved, and as no adjudication has yet taken
place.
80. It is the Committee of Creditors which will approve or
disapprove a resolution plan, given the statutory parameters of
Section 30. Under Regulation 39 of the CIRP Regulations, sub-
clause (3) thereof provides:-
“(3) The committee shall evaluate the resolution plans
received under sub-regulation (1) strictly as per the
122
evaluation matrix to identify the best resolution plan
and may approve it with such modifications as it
deems fit:
Provided that the committee shall record the reasons
for approving or rejecting a resolution plan.”
This regulation shows that the disapproval of the Committee of
Creditors on the ground that the resolution plan violates the
provisions of any law, including the ground that a resolution plan is
ineligible under Section 29A, is not final. The Adjudicating
Authority, acting quasi-judicially, can determine whether the
resolution plan is violative of the provisions of any law, including
Section 29A of the Code, after hearing arguments from the
resolution applicant as well as the Committee of Creditors, after
which an appeal can be preferred from the decision of the
Adjudicating Authority to the Appellate Authority under Section 61.
81.If, on the other hand, a resolution plan has been approved by
the Committee of Creditors, and has passed muster before the Ad-
judicating Authority, this determination can be challenged before
the Appellate Authority under Section 61, and may further be chal-
lenged before the Supreme Court under Section 62, if there is a
question of law arising out of such order, within the time specified
in Section 62. Section 64 also makes it clear that the timelines
that are to be adhered to by the NCLT and NCLAT are of great im-
portance, and that reasons must be recorded by either the NCLT
123
or NCLAT if the matter is not disposed of within the time limit spec-
ified. Section 60(5), when it speaks of the NCLT having jurisdiction
to entertain or dispose of any application or proceeding by or
against the corporate debtor or corporate person, does not invest
the NCLT with the jurisdiction to interfere at an applicant’s behest
at a stage before the quasi-judicial determination made by the Ad-
judicating Authority. The non-obstante clause in Section 60(5) is
designed for a different purpose: to ensure that the NCLT alone
has jurisdiction when it comes to applications and proceedings by
or against a corporate debtor covered by the Code, making it clear
that no other forum has jurisdiction to entertain or dispose of such
applications or proceedings.
82.One thing that must be made clear at this stage is that when
Section 33 speaks of the “Adjudicating Authority” in sub-section
(1), it is referring to both the Adjudicating Authority as well as the
Appellate Authority. An Adjudicating Authority may decide in
favour of a resolution plan, which order may then be set aside by
the Appellate Authority. This order of the Appellate Authority,
setting aside the order of the Adjudicating Authority, would then be
the order which rejects the resolution plan for the purposes of
Section 33. The same would apply to an ultimate order of
rejection by the Supreme Court under Section 62. This is on the
124
principle that, as stated in Lachmeshwar Prasad Shukul & Ors.
v. Keshwar Lal Chaudhuri & Ors. AIR 1941 FC 5 and followed in
a number of our judgments, an appeal is a continuation of the
original proceedings.
83. Given the fact that both the NCLT and NCLAT are to decide
matters arising under the Code as soon as possible, we cannot
shut our eyes to the fact that a large volume of litigation has now
to be handled by both the aforesaid Tribunals. What happens in a
case where the NCLT or the NCLAT decide a matter arising out of
Section 31 of the Code beyond the time limit of 180 days or the
extended time limit of 270 days? Actus curiae neminem gravabit
- the act of the Court shall harm no man - is a maxim firmly rooted
in our jurisprudence (see Jang Singh v. Brijlal & Ors. [1964] 2
S.C.R. 146 at page 149, and A.S. Antulay v. R.S. Nayak & Ors.
[1988] Supp. 1 S.C.R. 1 at page 71). It is also true that the time
taken by a Tribunal should not set at naught the time limits within
which the corporate insolvency resolution process must take
place. However, we cannot forget that the consequence of the
chopper falling is corporate death. The only reasonable
construction of the Code is the balance to be maintained between
timely completion of the corporate insolvency resolution process,
and the corporate debtor otherwise being put into liquidation. We
125
must not forget that the corporate debtor consists of several
employees and workmen whose daily bread is dependent on the
outcome of the corporate insolvency resolution process. If there is
a resolution applicant who can continue to run the corporate
debtor as a going concern, every effort must be made to try and
see that this is made possible.
3
A reasonable and balanced
construction of this statute would therefore lead to the result that,
where a resolution plan is upheld by the Appellate Authority, either
by way of allowing or dismissing an appeal before it, the period of
time taken in litigation ought to be excluded. This is not to say that
the NCLT and NCLAT will be tardy in decision making. This is only
to say that in the event of the NCLT, or the NCLAT, or this Court
taking time to decide an application beyond the period of 270
days, the time taken in legal proceedings to decide the matter
cannot possibly be excluded, as otherwise a good resolution plan
may have to be shelved, resulting in corporate death, and the
consequent displacement of employees and workers.
84. Coming to the facts of the present case, let us first
examine the resolution plan presented by Numetal. Numetal was
incorporated in Mauritius on 13.10.2017, expressly for the purpose
3
Regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation
Process) Regulations, 2016, states that the liquidator may also sell the corporate
debtor as a going concern.
126
of submission of a resolution plan qua the corporate debtor, i.e.,
ESIL. Two other companies, viz., AHL and AEL, were also
incorporated on the same day in Mauritius. Shri Rewant Ruia, son
of Shri Ravi Ruia (who was the promoter of ESIL) held the entire
share capital of AHL, which in turn held the entire shareholding of
AEL, which in turn held the entire share capital of Numetal. At this
stage there can be no doubt whatsoever that Shri Rewant Ruia,
being the son of Shri Ravi Ruia, would be deemed to be a person
acting in concert with the corporate debtor, being covered by
Regulation 2(1)(q)(v) of the 2011 Takeover Regulations.
85. On 18.10.2017, AEL transferred its shareholding of 26.1%
in Numetal to a group company, viz., ECL. This group company is
ultimately owned by ‘Virgo Trust’ and ‘Triton Trust’, the
beneficiaries of which are companies owned by Shri Ravi Ruia, his
brother Shri Shashikant Ruia and their immediate family members.
The object of including ECL, as stated in the relevant extract from
Numetal’s expression of interest is as follows:
“The Company satisfies the minimum tangible net
worth requirement of INR 30 Billion considering ECL,
as a group company that holds 26.1% (Twenty Six
point one Percent) shares in the Company, has net
worth of USD 2,974 million (US Dollars Two Thousand
Nine Hundred Seventy Four million) or INR 192.8
Billion (Rupees One Hundred Ninety Two Point Eight
Billion) as on 31
st
March 201 (immediately preceding
completed financial year). Please refer Annexure I for
127
the certificate of Chartered Accountant of the Company
certifying satisfaction of the minimum tangible net
worth requirement in terms of the Eligibility Criteria
which includes A, a certificate of Chartered Accountant
certifying ECL’s tangible net worth. It is pertinent to
note that in case the company is considered as a
consortium potential resolution applicant, it continues
to satisfy the minimum tangible net worth requirement
since the total tangible net worth of the Company,
computed on the basis of the weighted average of
AEI’s and ECL’s net worth proportionate to their
respective shareholding in the Company, is INR 50.33
Billion, which is in excess of INR 30 Billion”.
86. The very next day, Shri Rewant Ruia settled an
irrevocable and discretionary trust, viz., the ‘Crescent Trust’, and
settled the entire share capital of AHL into the Trust, at a par value
of USD 10,000. The beneficiaries of this Trust were general
charities, as well as entitles owned by Shri Shashikant Ruia
(brother of Shri Ravi Ruia, promoter of the corporate debtor), and
entities owned by Shri Rewant Ruia himself.
87. On 20.11.2017, Shri Rewant Ruia settled ‘Prisma Trust’,
another irrevocable and discretionary trust, whose beneficiaries
are “general charities” and one ‘Solis Enterprises Limited’, a
company incorporated in Bermuda, whose share capital is held by
Shri Rewant Ruia. Numetal, vide a response dated 30.3.2018,
admitted that while the trust deed relating to Prisma Trust allowed
the trustee to benefit any English or Bermuda charity, “no
128
particular charity is named at this stage”. The Trustee of AEL is
one ‘Rhone Trustee’, Singapore. What is important to note is that
Shri Rewant Ruia was the ultimate natural person who held the
beneficial interest in AEL through Prisma Trust, through Solis
Enterprises Limited. This emerges from Section 6.7 of the
resolution plan submitted by Numetal to the Resolution
Professional. Interestingly enough, in an affidavit dated 5.3.2018,
the Trustee of Prisma Trust submitted:
“that the Trustee (for itself and each person controlled
by it), hereby confirm that AEL or Rewant Ruia neither
are nor will, following the implementation of the
Resolution Plan, be a promoter of or have control over
or have any management rights in the RA or ESIL (or
the resultant company upon completion of the Merger)
(including without limitation, the rights to appoint
directors on the board of the RA or ESIL, or any
specific veto rights or the right to direct the policy or
management of the RA or ESIL in any manner).”
88. The Resolution Professional, after looking at this affidavit,
correctly noted that statements of such a nature would not have
been made by a truly independent trustee of a discretionary trust,
which demonstrates that the trustee was under the complete
control of Shri Rewant Ruia. This in turn indicates that Prisma
Trust is one more smokescreen in the chain of control, which
would conceal the fact that the actual control over AEL is by none
other than Shri Rewant Ruia himself.
129
89. “Curiouser and Curiouser” was the expression of Alice, in
Lewis Carroll’s Alice in Wonderland. In this wonderland of Shri
Rewant Ruia, one day later on 22.11.2017, the trustees of the
Prisma Trust now acquired 100% of the shareholding of AHL for a
par value of approximately USD 10,000 from the trustees of the
Crescent Trust. On this very date, merely one day before the
Ordinance bringing into force Section 29A was promulgated, ECL
transferred its shareholding of 26.1% of the share capital of
Numetal to Crinium Bay, an indirect wholly owned subsidiary of
VTB Bank, whose shares in turn are held by the Russian
Government. AEL also transferred shares representing 13.9% of
the share capital of Numetal to Crinium Bay, thus making Crinium
Bay’s total holding in Numetal 40%. On the same date, AEL also
transferred shares representing 25.1% of the share capital of
Numetal to Indo, and also transferred shares representing 9.9% of
the share capital of Numetal to TPE. These transfers are likely to
have taken place between 10.2.2018 and 12.2.2018. At the time
of submission of its first Resolution Plan dated 12.2.2018, the
shareholding of Numetal was as follows:
Crinium Bay : 40%
Indo : 25.1%
TPE : 9.9%
AEL : 25%
130
90. It is important to note that, as of this date, Shri Rewant
Ruia, who is the ultimate beneficiary in the chain of control of the
trusts which in turn controlled AEL, was very much on the scene,
holding through AEL 25% of the shareholding of Numetal.
91. One other extremely important fact needs to be noticed at
this stage. The earnest money in the form of Rs. 500 crores,
credited to the account of the corporate debtor, has been provided
to Numetal by AEL as a shareholder of the resolution applicant,
viz. Numetal. It is important to note that this earnest money
deposit of Rs.500 crores made by AEL continues to remain with
the Resolution Professional till date, despite the fact that, by the
time the second resolution plan was submitted by Numetal on
2.4.2018, AEL had exited as a shareholder of Numetal. It is also
important to note that under clause 4.4.4 of the request for
proposal for submission of resolution plans for ESIL, the earnest
money deposit stands to be forfeited if any condition thereof is
breached or the qualifications of the potential resolution applicant
are found to be untrue. At this stage, it is important to reproduce
relevant extracts of the resolution plan first submitted by Numetal
in response to the request for proposal. The same are as under:
“4. … the Resolution Applicant is a newly established
company that has been incorporated to provide a
131
platform to create and sustain a leading Indian steel
business and is focused on the acquisition and
turnaround of the Corporate Debtor.
Accordingly, to implement the Plan, Numetal believes
that it has access to the right mix and balance of the
financial and technical market experience which can
be provided to the Corporate Debtor.
Numetal is held by four independent shareholders,
who possess complementary skill-sets in financial,
operational, trading and industrial sectors together with
regional expertise that will support the business in the
medium and longer term.
xxx xxx xxx
5.2. … (i) Numetal is backed by seasoned and
experienced shareholders who bring deep expertise
from different industries covering Finance, Steel, Oil
and Gas, Metal Mining, Trading expertise across
geographies. Crinium Bay Holdings Limited (“Crinium
Bay”) an indirect wholly owned subsidiary of VTB Bank
PJSC (“VTB Bank”). VTB Bank is one of the largest
emerging market groups listed on Moscow Exchange
(“MOEX”) and London Stock Exchange (“LSE”) with
current market capitalization of approximately US$
12.3bn (approximately INR 79,000 Crores) and total
assets in excess of approximately US$ 220bn
(approximately INR 14,08,000).
xxx xxx xxx
VTB Banks support to provide financing, credit
assistance to the Resolution Applicant is set out in
Annexure 2 and is subject to the terms of the letter
provided therein.
The other shareholders in Numetal also have material
businesses with international operations focused on
the steel, materials and resources sector-
(a) Tyazhpromexport JSC (“TPE”) a leading
engineering agency in Russia in ferrous and non
ferrous metallurgy project operations and construction
with experience with over 60 years and wholly owned
by Russian State corporation, Rostec;
(b) Indo International Trading FZCO (“Indo” or “IITF”), a
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leading commodity trading company; and
(c) Aurora Enterprise Trading (sic) Limited (“AEL” or
“Aurora”) a financial investor with regional expertise.
Numetals (sic) shareholders bring together a wealth of
experience in technical and operational capabilities,
banking and finance, commodity trading and regional
expertise for the benefit of creating long term steel
business.
xxx xxx xxx
6.3. …The shareholders of Numetal bring to the table,
considerable experience from difference industries
covering finance, steel, oil and gas, metals and mining
chemicals and other sectors across geographies. They
have extensive experience in the field of management
of distressed assets/situations, restructuring of debt,
turnaround of corporates and improvement of
strategies for cash flows. In addition these
shareholders have a good understanding of Asian
markets having dealt with large corporates in these
markets. The above factors coupled with the financial
strength of its shareholders, put Numetal in a strong
position to implement the turnaround successfully.
xxx xxx xxx
(c) … Aurora Enterprises Limited (“AEL”) brings a
careful focus on financial returns and expertise of the
Indian business and commercial sector to Numetal.
AEL is a pure financial investor.
The beneficiaries of such discretionary trust are
general charities and Solis Enterprise Limited, a
company incorporated in Bermuda, the share capital of
which is held by Mr. Rewant Ruia.
Mr. Rewant Ruia is the son of Ravi Ruia, who is one of
the existing promoters of the Corporate Debtor.”
92. Clause 6.7 of Numetal’s resolution plan stipulated that it
satisfied the minimum tangible net worth requirement, as set out
under the request for proposal, because Crinium Bay held 40% of
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the shareholding of Numetal, and that VTB Bank, Crinium Bay’s
holding company had sufficient net worth, as on 31.12.2016, to
comply with the requirement under the request for proposal. The
Resolution Professional, in its affidavit before the Adjudicating
Authority, took note of this plan and, therefore, stated:
“Under Para 1 of the Eligibility Criteria for Potential
Resolution Applicants published by this Respondent on
the website of the Corporate Debtor, potential
resolution applicants were given the option of
satisfying the minimum tangible net worth net owned
funds requirement at a “Group Level” by taking into
consideration the financial of entities controlling or
controlled by or under common control with the
potential resolution applicant. It is evident from the
foregoing that Numetal took advantage of this
provision and relied upon the financial wherewithal of
its constituents/ shareholders. Numetal has not
submitted or relied upon its stand-alone financials to
satisfy the eligibility criteria. It is submitted that having
taken advantage of this provision it is not open to
Numetal to contend that this Respondent cannot look
at its constituents/ shareholders when determining the
issue of eligibility under Section 29A of the Code.
Further, it is submitted that even though the RFP
document does not allow a resolution applicant to look
at its constituents/ shareholders for the purposes of
demonstrating its experience, it is clear from the
foregoing that Numetal has extensively relied on the
experience of its constituents/shareholders to
demonstrate its experience. It is submitted that having
relied on the experience of its
constituents/shareholders it is not open to Numetal to
contend that this Respondent cannot look at its
constituents/shareholders when determining the issue
of eligibility under Section 29A of the Code.”
93. The excerpted portions of Numetal’s resolution plan make
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it clear that, since Numetal itself was a newly incorporated entity,
with no financial or experience credentials of its own, it therefore
relied entirely on the credentials of each of its constituent
shareholders. This shows that Numetal itself revealed in its
resolution plan that its corporate veil should be lifted, for without
lifting this veil, none of the parameters of the request for proposal
could have been met by Numetal itself. It is thus clear that the four
shareholders of Numetal were persons “acting jointly” within the
meaning of Section 29A. This being the case, it is clear that Shri
Salve’s argument that VTB Bank is a “connected person”, being
ineligible under sub-clause (j), would have to be rejected, as VTB
Bank is itself, through its wholly owned subsidiary of Crinium Bay,
a person acting jointly with the three other shareholders of
Numetal, and would, therefore, fall within the first part of Section
29A itself. This being so, it cannot be said that VTB Bank is a
person “connected to” any one of the persons acting jointly, as it is
itself a person acting jointly, and therefore covered by the first part
of Section 29A.
94. It is important to note that on 29.3.2018, AEL transferred
its 25% shareholding in Numetal to the other three constituent
shareholders, thereby leaving its shareholding in Numetal as ‘Nil’.
In response to the Resolution Professional’s invitation, the second
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Resolution Plan, therefore, submitted by Numetal on 2.4.2018, did
not have AEL as a constituent of Numetal; instead, Crinium Bay
continued with 40% of the shareholding of Numetal, with TPE’s
holding now augmented to 29.5% and Indo’s to 34.1%.
95. Given the fact that Shri Rewant Ruia is a person deemed
to be acting in concert with his father Shri Ravi Ruia (who was a
promoter of the corporate debtor ESIL), there is no doubt
whatsoever that Section 29A(c) would be attracted as on the date
of submission of the first resolution plan, viz. 12.2.2018, as AEL
was held by Prisma Trust, whose ultimate beneficiary is Shri
Rewant Ruia himself. This would show that the NPA declared over
a year before the date of commencement of the corporate
resolution process of ESIL (i.e. in 2015) would render Numetal
ineligible to submit a resolution plan. The only manner in which
Numetal could successfully present a resolution plan would be to
first pay off the debts of ESIL, as well as those of such other
corporate debtors of the Ruia group of companies, which were
declared as NPAs prior to the aforesaid period of one year, before
submitting its resolution plan. However, if the date of the second
resolution plan is to be seen, Shri Rewant Ruia appears to have
disappeared from the scene altogether, as the three entities left
are stated to be independent entities in the form of two Russian
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entities and one UAE entity. Viewed on 2.4.2018, therefore, could
it be said that Shri Rewant Ruia had disappeared from the scene
altogether, so as to obviate the application of Section 29A(c)? The
obvious answer is no. This is for two reasons. First, as has been
stated earlier, the Rs.500 crores that has been deposited towards
submission of earnest money continues to remain deposited by
AEL even post 2.4.2018, showing thereby that Shri Rewant Ruia
continues to be present, insofar as Numetal’s second resolution
plan is concerned. Further, having regard to the reasonably
proximate state of affairs before submission of the resolution plan
on 2.4.2018, beginning with Numetal’s initial corporate structure,
and continuing with the changes made till date, it is evident that,
the object of all the transactions that have taken place after
Section 29A came into force on 23.11.2017 is undoubtedly to
avoid the application of Section 29A(c), including its proviso. We
therefore hold that, whether the first or second resolution plan is
taken into account, both would clearly be hit by Section 29A(c), as
the looming presence of Shri Rewant Ruia has been found all
along, from the date of incorporation of Numetal, till the date of
submission of the second resolution plan.
96. Another argument raised by Shri Salve is that VTB Bank
is ineligible to present a resolution plan, as the major constituent of
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Numetal, through its wholly owned subsidiary of Crinium Bay, as
VTB Bank is ineligible as sub-clause (f) read with sub-clause (i) of
Section 29A have been attracted.
97. In February/March 2014, the Russian Federation
annexed the Ukrainian region of Crimea. Consequently, on
6.3.2014, the President of the United States issued Executive
Order 13660, pursuant to the International Emergency Economic
Powers Act and the National Emergencies Act. The said order
sought to block the property of Russian entities contributing to the
situation in Ukraine. Summarizing the executive order issued by
the President, the Department of Treasury’s Office of Foreign
Assets Control commented:-
“The Ukraine/Russia-related sanctions program
implemented by the Office of Foreign Assets Control
(OFAC) began on March 6, 2014, when the President,
in Executive Order (E.O.) 13660, declared a national
emergency to deal with the threat posed by the actions
and policies of certain persons who had undermined
democratic processes and institutions in Ukraine;
threatened the peace, security, stability, sovereignty,
and territorial integrity of Ukraine; and contributed to
the misappropriation of Ukraine’s assets. In further
response to the actions and polices of the Government
of the Russian Federation, including the purported
annexation of the Crimea region of Ukraine, the
President issued three subsequent Executive orders
that expanded the scope of the national emergency
declared in E.O. 13660. Together, these orders
authorize, among other things, the imposition of
sanctions against persons responsible for or complicit
in certain activities with respect to Ukraine; against
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officials of the Government of the Russian Federation;
against persons operating in the arms or related
materiel sector of the Russian Federation; and against
individuals and entities operating in the Crimea region
of Ukraine. E.O. 13662 also authorizes the imposition
of sanctions on certain entities operating in specified
sectors of the Russian Federation economy. Finally,
E.O. 13685 also prohibits the importation or
exportation of goods, services, or technology to or from
the Crimea region of Ukraine, as well as new
investment in the Crimea region of Ukraine by a United
States person, wherever located.”
98.The Office of Foreign Assets Control thereafter issued
Directive Number 1 under Executive Order 13662, stating:-
“DIRECTIVE 1 (AS AMENDED ON SEPTEMBER 29,
2017) UNDER EXECUTIVE ORDER 13662
Pursuant to sections 1(a)(i), 1(b), and 8 of Executive
Order 13662 of March 20, 2014, “Blocking Property of
Additional Persons Contributing to the Situation in
Ukraine” (the Order) and 31 C.F.R. § 589.802, taking
appropriate account of the Countering Russian
Influence in Europe and Eurasia Act of 2017, and
following the Secretary of the Treasury’s determination
under section 1(a)(i) of the Order with respect to the
financial services sector of the Russian Federation
economy, the Director of the Office of Foreign Assets
Control has determined, in consultation with the
Department of State, that the following activities by a
U.S. person or within the United States are
prohibited…”
After this, the Office of Foreign Assets Control issued Directive
Number 2, under Executive Order 13662, stating:-
“DIRECTIVE 2 (AS AMENDED ON SEPTEMBER 29,
2017) UNDER EXECUTIVE ORDER 13662
Pursuant to sections 1(a)(i), 1(b), and 8 of Executive
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Order 13662 of March 20, 2014, “Blocking Property of
Additional Persons Contributing to the Situation in
Ukraine” (the Order) and 31 C.F.R. § 589.802, taking
appropriate account of the Countering Russian
Influence in Europe and Eurasia Act of 2017, and
following the Secretary of the Treasury’s determination
under section 1(a)(i) of the Order with respect to the
energy sector of the Russian Federation economy, the
Director of the Office of Foreign Assets Control has
determined, in consultation with the Department of
State, that the following activities by a U.S. person or
within the United States are prohibited, except to the
extent provided by law or unless licensed or otherwise
authorized by the Office of Foreign Assets Control:
(1) For new debt issued on or after July 16, 2014 and
before November 28, 2017, all transactions in,
provision of financing for, and other dealings in new
debt of longer than 90 days maturity of persons
determined to be subject to this Directive or any earlier
version thereof, their property, or their interests in
property.
(2) For new debt issued on or after November 28,
2017, all transactions in, provision of financing for, and
other dealings in new debt of longer than 60 days
maturity of persons determined to be subject to this
Directive or any earlier version thereof, their property,
or their interests in property.
All other activities with these persons or involving their
property or interests in property are permitted,
provided such activities are not otherwise prohibited
pursuant to Executive Orders 13660, 13661, 13662, or
13685 or any other sanctions program implemented by
the Office of Foreign Assets Control.”
99. The names of persons determined to be subject to the
directives issued under Executive Order 13662 are published in
the ‘Sectoral Sanctions Identification List’, published by the Office
of Foreign Assets Control. A perusal of this list shows that VTB
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Bank is listed therein, along with various entities affiliated to it.
100.Similarly, under EU Council Regulation 833 of 2014 dated
31.7.2014, certain restrictive measures in view of Russian actions
destabilizing the situation in Ukraine were taken against certain
Russian entities, of which VTB Bank was one. These measures
included:
“(5) It is also appropriate to apply restrictions on
access to the capital market for certain financial
institutions, excluding Russia-based institutions with
international status established by intergovernmental
agreements with Russia as one of the shareholders.
Other financial services such as deposit business,
payment services and loans to or from the institutions
covered by this Regulation, other than those referred
to in Article 5, are not covered by this Regulation.”
Under Article I of this regulation, ‘transferable securities’ was
defined as :
“(f) ‘transferable securities’ means those classes of
securities which are negotiable on the capital market,
with the exception of instruments of payment, such as:
(i) shares in companies and other securities
equivalent to shares in companies, partnerships
or other entities, and depositary receipts in
respect of shares,
(ii) bonds or other forms of securitised debt,
including depositary receipts in respect of such
securities,
(iii) any other securities giving the right to acquire
or sell any such transferable securities or giving
rise to a cash settlement;”
Article V thereto provided:-
“It shall be prohibited to directly or indirectly purchase,
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sell, provide brokering or assistance in the issuance of,
or otherwise deal with transferable securities and
money-market instruments with a maturity exceeding
90 days, issued after 1 August 2014 by…”
Further, Annexure III thereto listed VTB Bank as one of the
institutions subject to the ‘restrictive measures’.
101.What has been argued on behalf of Shri Rohatgi is that,
in order to be covered by sub-clause (f) read with sub-clause (i) of
Section 29A, the person must be subject to a disability, which
corresponds to a prohibition by SEBI in India from trading in
securities or accessing the securities markets. Sub-clauses (f) and
(i) therefore refer to persons who, on account of their antecedents,
may adversely impact the credibility of the processes under the
Code. This is in fact stated in the Preamble of the Insolvency and
Bankruptcy Code (Amendment) Ordinance, 2017 , dated
23.11.2017, which introduced Section 29A into the Code, as
follows:
“AND WHEREAS in order to strengthen further the
insolvency resolution process, it has been considered
necessary to provide for prohibition of certain persons
from submitting a Resolution Plan who, on account of
their antecedents, may adversely impact the credibility
of the processes under the Code.” (emphasis supplied)
102.What is stressed by Shri Rohatgi is that, in his speech
while introducing the Amendment Bill in Parliament, the Finance
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Minister stated:-
“and a person who is prohibited under SEBI cannot
apply. So these are statutory disqualifications.”
In the light of this object, Section 29A(i) will have to be read as a
disability which corresponds to Section 29A(f) in view of the
antecedent conduct on the part of the person applying as a
resolution applicant in a jurisdiction outside India.
103.What will be noticed is that the sanctions that have been
imposed by the authorities of both the United States and the
Council of the European Union are not on account of any
misconduct on the part of VTB Bank. Rather, they have been
imposed politically, because of the conduct of a particular country,
i.e. Russia, which has sought to undermine Ukraine’s territorial
integrity, sovereignty and independence, by illegally annexing
Crimea and Sevastopol. We are of the view that Shri Rohatgi is
right, inasmuch as VTB Bank cannot be said to have been
prohibited by an authority outside India from trading in securities or
accessing the securities markets, due to any fraudulent and/or
unfair trade practices relating to the securities market generally. A
prohibitory sanction by an authority situate outside India for
political reasons would thus not be covered by sub-clause (i).
However, Shri Salve pointed to an order dated 19.9.2017 of the
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US Commodity Futures Trading Commission, which held:
“A. Respondents Violated Section 4c(a)(1) and (2)
of the Act
Respondents' RUB/USD block trades constituted
unlawful fictitious sales and caused prices to be
reported or recorded that were not true and bona fide
prices. Section 4c(a)(1) and (2) of the Act makes it
unlawful "for any person to offer to enter into, enter
into, or confirm the execution of a transaction that is ...
a fictitious sale" or that "is used to cause any price to
be reported, registered, or recorded that is not a true
and bona fide price."
xxx xxx xxx
Respondents' RUB/USD block trades were fictitious
sales under the Act. Respondents designed the block
trades to accomplish through the use of the futures
market that which was not otherwise possible for VTB
to accomplish in the swaps market. Through the block
trades, VTB was able to transfer its cross-currency risk
to VTB Capital which could then hedge the risk in the
swaps market. VTB obtained pricing from VTB Capital
for these transactions that was more favorable than it
admittedly could have obtained from third-parties in the
futures market. With this structure, Respondents, as
intended, negated market risk and avoided price
competition. Accordingly, Respondents' block trades
were "fictitious from the standpoint of reality and
substance" and in violation of Section 4c(a)(1) and (2)
(A) of the Act. In re Goldwurm, 7 Agric. Dec. 265, 275
(providing that cotton futures trades entered for
purpose of accomplishing income tax reporting goals
were "fictitious from the standpoint of reality and
substance"). Further, Respondents' trades caused
prices to be reported to or recorded by the CME that
were not true and bona fide prices in violation of
Section 4c(a)(2)(B) of the Act. See In re Morgan
Stanley & Co., [2012 Transfer Binder] Comm. Fut. L.
Rep. (CCH) ¶ 32,218 (CFTC June 5, 2012) (settlement
order) (finding violation of Section 4c(a) where
unlawfully executed exchanges for related positions
caused non-bona fide prices to be reported or
recorded).
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xxx xxx xxx
V.
FINDINGS OF VIOLATION
Based on the foregoing, the Commission finds that,
during the Relevant Period, VTB and VTB Capital
violated Section 4c(a)(1) and (2) of the Act and
Regulation 1.38(a).”
104.VTB Bank had submitted an offer before the US
Commodity Futures Trading Commission, in which it, without
admitting or denying the findings or conclusions, had offered to
cease and desist from violating the regulations aforementioned, to
pay a civil monetary penalty in the amount of USD five million, and
had ordered its successors and assigns to comply with the
conditions consented to. This offer was accepted by the
Commission, and by way of settlement, apart from what was
offered by the respondents, the respondents further agreed, in the
said Order dated 19.9.2017 as follows:-
“3. Respondents further agree that they shall comply
with the following additional undertakings:
a. Respondents shall not enter into privately
negotiated futures, options or combination
transactions with one another on or through any
U.S.-based futures exchange for a period of two
years from the date of this Order;”
105.A reading of this order makes it clear that, even assuming
that the Commodity Futures Trading Commission is an authority
which corresponds with SEBI (Shri Rohatgi has argued that in the
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United States the Securities Exchange Commission is the
authority which corresponds with SEBI in India), it is clear that
there is no prohibition by the Commodity Futures Trading
Commission of the United States interdicting VTB Bank from
trading in securities or accessing the securities market. All that
VTB Bank has done is consent to a cease and desist order;
consent to pay a monetary penalty in the amount of USD five
million; and further consent to not enter into privately negotiated
futures options with a particular subsidiary, viz. VTB Capital, on or
through any US-based futures exchange for a period of two years
from the date of the order. Obviously, a prohibition regarding
privately negotiated futures options, or combination transactions
with one another, is not a prohibition from trading in securities or
accessing the securities market. We thus agree with Shri Rohatgi
that Crinium Bay, being a wholly owned subsidiary of VTB Bank,
does not therefore incur any disqualification under sub-clause (f)
read with sub-clause (i) of Section 29A.
106.This brings us to the Appellant, i.e., AMIPL. So far as
Uttam Galva is concerned, the corporate structure is as follows:-
AMSA is a listed company in Luxemburg. This company is the
ultimate parent company of the resolution applicant, through its
wholly owned subsidiary AMBD, a company incorporated in
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Luxemburg, which in turn holds 100% of the shares in Oakey
Holding BV, a company incorporated in the Netherlands, which in
turn holds 99.99% shares in AMIPL, a company incorporated in
India. AMNLBV is a company incorporated in the Netherlands,
and is a 100% subsidiary of AMSA. It is this group company of
Shri L.N. Mittal that held 29.05% of the shareholding in Uttam
Galva (as on 7.2.2018).
107.On 4.9.2009, a Co-Promotion Agreement was executed
between AMNLBV and the Indian promoters of Uttam Galva, who
are stated to be the Miglani family, who are residents of Mumbai.
As per the Co-Promotion Agreement, the foreign promoter, viz.,
AMNLBV was entitled to nominate one half of the non-independent
directors on the board of Uttam Galva, the other half being
nominated by the Miglanis. Both of them were to jointly nominate
all of the independent directors. Clause 16 of the said agreement,
read with Schedule II thereof, provides a list of matters which
require the affirmative vote of AMNLBV. It is important to notice
that the original shareholding of AMNLBV in Uttam Galva was
32%. This shareholding was reduced to 29.05% in the hands of
AMNLBV, the Miglani group holding 31.82% as of December
2017. The rest of the shares were held by the public. This Co-
Promotion Agreement, therefore, not only names AMNLBV as the
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foreign promoter of Uttam Galva, but also makes it clear that
Uttam Galva would be jointly managed and controlled by the
foreign and Indian promoters. Pursuant to this Co-Promotion
Agreement, on 7.9.2009 AMNLBV issued a letter of offer to
acquire 35,226,233 fully paid shares of the face value of Rs.10,
representing 25.76% of the share capital of Uttam Galva. In this
letter, it was disclosed to the public at large that AMNLBV was
becoming a promoter of this company, with significant affirmative
voting rights. On 20.9.2011, a Non Disposal Undertaking was
provided by AMNLBV, as promoter of Uttam Galva, to the lender
banks of Uttam Galva, which included the State Bank of India. On
31.3.2016, Canara Bank and Punjab National Bank declared
Uttam Galva’s accounts as NPA. It is important to note that, in all
the annual returns of Uttam Galva till date, AMNLBV’s
shareholding has been shown as ‘promoter’s shareholding.’ All the
annual reports, upto 2017, contained a list of promoters, which
included AMNLBV as one such, holding 29.05%% of the share
capital of the company, and having significant influence over the
company. Shri Salve’s argument that, in point of fact, no control
was actually exercised as AMNLBV never appointed any directors
or exercised its voting rights, cannot be accepted as that makes no
difference to the de jure position of AMNLBV being a “promoter” as
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defined in Section 2(69)(a) of the Companies Act, 2013.
108.On 7.2.2018, a few days before AMIPL submitted its first
resolution plan, AMNLBV sold its entire shareholding in Uttam
Galva by way of an off market sale, to a company of the Indian co-
promoters, viz., ‘Sainath Trading Company Private Limited’.
Shares that were purchased for Rs.120 each, were sold for Re.1
each, when the market value of the shares on the said date was
admittedly Rs.19.50 per share. The aforesaid sale of shares was
done without making an open offer under the 2011 Takeover
Regulations, on the basis that it was an inter se transfer of shares
between promoters, and therefore exempt from such requirement
under Regulation 10 of the said regulations. Also, as a matter of
fact, the sale of the said shares was effected without taking the
consent of the lenders of Uttam Galva, which consent was
necessary as per the Non Disclosure Undertaking that was
executed by AMNLBV. On 7.2.2018, consequent to the aforesaid
inter se transfer, the Co-Promotion Agreement is said to have
stood automatically terminated. By way of abundant caution, a
formal deed of termination was entered into. AMNLBV addressed
letters to the NSE and the BSE to record the aforesaid inter se
transfer, who accordingly declassified AMNLBV as a promoter of
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Uttam Galva on 21.3.2018 and 23.3.2018 respectively.
109.It is absolutely clear that Shri L.N. Mittal, who is the
ultimate shareholder of the resolution applicant, viz. AMIPL, is
directly the ultimate shareholder of AMNLBV as well, which is an
L.N. Mittal Group Company. When the corporate veil of the
various companies aforementioned is pierced, both AMIPL and
AMNLBV are found to be managed and controlled by Shri L.N.
Mittal, and are therefore persons deemed to be acting in concert
as per Regulation 2(1)(q)(2)(i) of the 2011 Takeover Regulations.
That AMNLBV is a promoter of Uttam Galva is clear from the
aforementioned facts, being expressly stated as such in Uttam
Galva’s annual returns. The reasonably proximate facts prior to
the submission of both resolution plans by AMIPL would show that
there is no doubt whatsoever that AMNLBV’s shares in Uttam
Galva were sold only in order to get out of the ineligibility
mentioned by Section 29A(c), and consequently the proviso
thereto. The fact that the lenders with whom AMNLBV had a Non
Disposal Undertaking have not yet moved any forum for a
declaration that the sale of the shares, being without their consent,
is non est, does not absolve AMNLBV from having failed to first
obtain their consent before selling off its shares in Uttam Galva.
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Such sale is directly contrary to the Non Disposal Undertaking
given to the lenders. Quite apart from this, it is also clear that
shares worth Rs.19.50 each were sold at a distress value of Re.1
each, so as to overcome the provisions of Section 29A(c) and the
proviso thereto. It is clear therefore that the Uttam Galva
transaction clearly renders AMIPL ineligible under Section 29A(c)
of the Code.
110.Insofar as the transaction with regard to KSS Petron is
concerned, the facts are as follows:-on 3.3.2011, Fraseli, an
entity registered and incorporated in Luxemburg, which is
managed and controlled by Shri L.N. Mittal, held 32.22% of the
shareholding of KSS Global, a company domiciled in the
Netherlands. On 19.5.2011, by a Shareholders Agreement
entered into between KSS Holding, KSS Infra EALQ, Fraseli and
KSS Global, the first three companies were each given a right to
appoint an equal number of directors on the board of directors of
KSS Global, which in turn held 100% of the share capital of KSS
Petron, a company incorporated in India. Fraseli was also granted
affirmative voting rights on decisions regarding certain specified
matters, both at the board and the shareholder level, in respect of
KSS Global and all companies controlled by it, which would
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include KSS Petron. As has been stated hereinabove, KSS Petron
was declared as an NPA on 30.9.2015. As in the case of Uttam
Galva, Fraseli divested its shareholding in KSS Petron on
9.2.2018, i.e., only three days before AMIPL submitted its first
resolution plan. On the same day, the directors nominated by Shri
L.N. Mittal, through Fraseli, resigned from the board of KSS
Global.
111.From the aforementioned facts, there can be no doubt
whatsoever that Fraseli, being a company managed and controlled
by Shri L.N. Mittal, holding one third of the shares in KSS Global,
which in turn held 100% of the share capital in KSS Petron, was in
joint control of KSS Petron, if the corporate veil of all these
companies is disregarded. Further, the Shareholders Agreement
of 19.5.2011 makes it clear that the joint control of KSS Global
would be between three entities, viz., KSS Holding, KSS Infra
EALQ and Fraseli, each of whom had the right to appoint an equal
number of directors on the board of directors of KSS Global. Not
only this, but Fraseli was also granted affirmative voting rights as
aforementioned, on certain important specified matters. There
would be no doubt whatsoever that, just before presentation of the
resolution plan of 12.2.2018, AMIPL would be hit by Section
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29A(c), as a group company of Shri L.N. Mittal exercised positive
control, by its shareholding, right to appoint directors and
affirmative voting rights, over KSS Global, which in turn held 100%
shareholding in KSS Petron. Again, as in the case of Uttam Galva,
there can be no doubt whatsoever that the sale of Fraseli’s
shareholding in KSS Global, together with the resignation of the
Mittal directors from the board of directors of KSS Global, is a
transaction reasonably proximate to the date of submission of the
resolution plan by AMIPL, undertaken with the sole object of
avoiding the consequence mentioned in the proviso to Section
29A(c). Having regard to the law laid down by us in this judgment,
it is, therefore, clear that AMIPL is ineligible under Section 29A(c)
of the Code, on this account as well.
112.Shri Rohatgi also argued before us that Shri Pramod
Mittal, brother of Shri Laxmi Mittal, also held shares in two other
companies which were declared to be NPAs more than one year
prior to the date of commencement of the corporate insolvency
resolution process of ESIL. We have been informed by Shri Salve
that Shri Pramod Mittal parted company with Shri L.N. Mittal as far
back as 1994, and cannot therefore be regarded as a person
acting in concert with Shri L.N. Mittal. Since this aspect of the
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case has not been argued before the authorities below, though
raised in an I.A. by Numetal before the Appellate Authority, we will
not countenance such an argument for the first time before this
Court.
113.Since it is clear that both sets of resolution plans that
were submitted to the Resolution Professional, even on 2.4.2018,
are hit by Section 29A(c), and since the proviso to Section 29A(c)
will not apply as the corporate debtors related to AMIPL and
Numetal have not paid off their respective NPAs, ordinarily, these
appeals would have been disposed of by merely declaring both
resolution applicants to be ineligible under Section 29A(c). Shri
Subramanium, on behalf of the Committee of Creditors, requested
us to give one more opportunity to the parties before us to pay off
their corporate debtors’ respective debts in accordance with
Section 29A, as the best resolution plan can then be selected by
the requisite majority of the Committee of Creditors, so that all
dues could be cleared as soon as possible. Acceding to this
request, in order to do complete justice under Article 142 of the
Constitution of India, and also for the reason that the law on
Section 29A has been laid down for the first time by this judgment,
we give one more opportunity to both resolution applicants to pay
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off the NPAs of their related corporate debtors within a period of
two weeks from the date of receipt of this judgment, in accordance
with the proviso to Section 29A(c). If such payments are made
within the aforesaid period, both resolution applicants can resubmit
their resolution plans dated 2.4.2018 to the Committee of
Creditors, who are then given a period of 8 weeks from this date,
to accept, by the requisite majority, the best amongst the plans
submitted, including the resolution plan submitted by Vedanta. We
make it clear that in the event that no plan is found worthy of
acceptance by the requisite majority of the Committee of Creditors,
the corporate debtor, i.e. ESIL, shall go into liquidation. The
appeals are disposed of, accordingly.
………………………… ..J.
(R.F. Nariman)
………………………… ..J.
(Indu Malhotra)
New Delhi;
October 4, 2018.
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