Wind Goose Sale: Legal Eagle warns of winning bid bids with guidelines
Although Almas expressed surprise at the ruling of the National National Company Law Tribunal (NCLT), legal experts say the development could be the result of a winning bid by the Star 9 consortium to disqualify Pawan Hans.
Surprised by the April 20 NCLT order, Almas Global Opportunity Fund called it “sudden” and “premature”, in a statement. The company claimed that the NCLT order held them off guard because they sought extra time from EMC Ltd’s Committee of Creditors (CoC) to complete the transaction due to adverse market conditions.
Along with Big Charter and Maharaja Aviation, Almas Global is also part of the three-way Star9 consortium that has successfully bid Rs 211.14 crore for Pawan Hans. However, in the case of unrelated EMC Ltd, the NCLT order is likely to derail the helicopter service company’s investment for the fourth time.
Almas Global was declared a successful bidder for bankrupt Kolkata-based power system player EMC Limited when its resolution plan was approved by NCLT. The NCLT managed to pass its April 20 order due to delays in depositing funds for the process in part of the Cayman Islands-headquarters funding, the winning bid for Pawan Hans was announced nine days earlier.
In a statement, Almas Global said the company had already begun the process of going to the National Company Law Appeal Tribunal (NCLAT) – the higher appellate authority – to pay the prescribed amount and finalize the transaction for the acquisition of EMC Limited. According to the approved resolution plan.
“While this overall NCLT process and order has shaken our confidence in the overall process, we remain committed to investing in India and Indian companies,” the Cayman Islands Registered Fund noted.
Meanwhile, legal experts told Business Today that the Star9 consortium bid for Pawan Hans – a 51:49 joint venture helicopter service (JV) between the government and ONGC – could be disqualified if it is found to have violated the Almas Global Disinvestment Guidelines.
“The NCLT’s Kolkata bench’s order raises some strong questions about the credibility of the majority of bidders in the context of Pawan Hans’ investment and thus some strong questions about the bid,” said Neha Singh, an associate partner at law firm Link Legal. .
Failure to implement solution plan
NCLT observed in its judgment that Almas Global, after becoming a successful Resolution Applicant (SRA) relating to corporate debtor EMC Limited, did not fulfill its obligation to implement the resolution plan under its terms. The NCLT observed that Almas did not show any intention or even take adequate steps to demonstrate its willingness to implement the Global Resolution Plan.
The NCLT, therefore, assumes that the Company and its officials are liable for violating the approved Resolution Plan in terms of Section 74 (3) read with Section 236 of the IBC. While forfeiting the Rs 30 crore Performance Bank Guarantee, NCLT further observed that the attitude of Almas Global made it a suitable case under Section 74 (3) of the IBC which applies to anyone who knowingly and intentionally violates such terms. One of the aspects of a resolution plan or its persuasion
“The Successful Resolution Applicant (SRA) has taken the whole process for a journey, and nothing really can justify this boldness. Intentional breach ‘may be applied to satisfy the test, “the NCLT order said.
“The punishment for an offense under section 74 (3) of the IBC is not less than one year, but may be up to five years or a fine which may not be less than one lakh rupees, but may extend up to one crore rupees or more. Both cases will be tried by a special court set up under the Companies Act under Section 236 of the IBC Offenses Act, ”said Ajay Shaw, a partner at DSK Legal.
The government is examining the NCLT order
The government is currently examining the NCLT order to determine whether investor and public asset management department (DIPAM) guidelines have been violated by the bidder.
“The NCLT’s decision now needs to be examined in the context of the removal of Pawan Hans where Almas Global is part of a consortium that has bid for Pawan Hans. Failure to meet the eligibility criteria will result, ”said DSK Legals Shaw.
“The NCLT order needs to be looked at closely for evaluation if it leads to a violation of the DIPAM disinvestment guidelines, which determine the disqualification of a bidder, primarily because of a conviction by a court of law or because of an alleged or adverse order by a regulator. That authority casts doubt on the ability of the bidder to operate the public sector unit when it is invested, ”warned Link Legal Singh.
“Since Almas Global holds 49 per cent of successful bidders, i.e. Star 9 Mobility, the above could potentially be the reason for disqualification of bidders and bidders,” he added quickly.
DIPAM has declared the Star 9 Mobility consortium as the winning bidder for 37-year-old Pawan Hans after three failed attempts before its removal.
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