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TMI Blog2019 (7) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... ion preferred by the Appellant- Mr. Prashant Ruia and Intervenor- Essar Steel Asia Holdings Limited deserves to be rejected. Whether the Committee of Creditors can delegate its power to a Sub Committee or Core Committee for negotiation with the Resolution Applicant for revision of plan? - whether the Sub Committee or the Committee of Creditors are empowered to distribute the amount amongst the Financial Creditors and the Operational Creditors and other Creditors? - HELD THAT:- A Sub-Committee or Core Committee is unknown and against the provisions of the I B Code . There is no provision under I B Code which permits constitution of a Core Committee or Sub-Committee nor the I B Code or Regulations empowers the Committee of Creditors to delegate the duties of the Committee of Creditors to such Core Committee / Sub- Committee . From sub-clause (b) of sub-section (2) of Section 30, it is clear that the Resolution Professional is required to notice whether the Resolution Plan provides for the payment of the debts of the Operational Creditors in such manner as may be specified by the Board. The said provision makes it clear that the Resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant does not pay the total dues to the Creditors such as the Financial Creditors or the Operational Creditors but pays lesser amount than the claim, then in such case, the profit should be distributed amongst all the Creditors including the Financial Creditors and the Operational Creditors - after the distribution of the amount of ₹ 42,000 Crores in a manner as shown in the preceding paragraphs, if any amount is found to have been generated as profit during the Corporate Insolvency Resolution Process after due verification by the Auditors, it should be distributed amongst all the Financial Creditors and the Operational Creditors on pro-rata basis of their claims subject to the fact that it should not exceed the admitted claim. - Company Appeal (AT) (Ins.) No. 242 of 2019 With Company Appeal (AT) (Ins.) No. 243 of 2019 With Company Appeal (AT) (Ins.) No. 257 of 2019 With Company Appeal (AT) (Ins.) No. 265 of 2019 With Company Appeal (AT) (Ins.) No. 266 of 2019 - - - Dated:- 4-7-2019 - Mr S. J. Mukhopadhaya, Chairperson And Mr Bansi Lal Bhat, Member (Judicial) Company Appeal (AT) (Ins.) No. 290 of 2019 With Company Appeal (AT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor ), the Committee of Creditors approved the Resolution Plan submitted by ArcelorMittal India Pvt. Ltd. - ( Successful Resolution Applicant ) which was approved by the Adjudicating Authority (National Company Law Tribunal), Ahmedabad Bench, Ahmedabad, with certain modifications by impugned order dated 8th March, 2019. 2. A number of applications were preferred by the Operational Creditors and the Financial Creditors which were disposed of by individual impugned orders or the impugned order dated 8th March, 2019. 3. A group of appeals were heard together. Some of the appeals were heard separately but common impugned order being under challenge and as common question of law is involved, they are disposed of by this common judgment. 4. Mr. Prashant Ruia (Promoter), Appellant in Company Appeal (AT) (Insolvency) No. 257 of 2019, has challenged the order dated 8th March, 2019 on the ground that ArcelorMittal India Pvt. Ltd. - ( Successful Resolution Applicant ) is ineligible in terms of Section 29A of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as I B Code ). 5. In rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould not have dealt with in any manner with the Appellant s right of subrogation and indemnification, much less extinguishing such rights. 10. Learned Senior Counsel for the Appellant further submitted that the Resolution Plan submitted by ArcelorMittal India Pvt. Ltd. , as approved, is violative of Section 29A (e) of the I B Code . 11. According to him, ArcelorMittal India Pvt. Ltd. fraudulently by way of falsehood, suppression and misrepresentation of the facts had not brought to the notice of the Hon ble Supreme Court that it is ineligible under Section 29A (e). It has misled the Hon ble Supreme Court, this Appellate Tribunal, the Committee of Creditors and the Resolution Professional of the Corporate Debtor by stating that Mr. Lakshmi Mittal had completely exited from the Indian Businesses of the Mittal Family, more specifically, (i) Gontermann Peipers India Limited [ GPIL ]; (ii) GPI Textiles Limited and (iii) Balasore Alloys Limited . 12. According to him, Mr. Lakshmi Mittal, Mr. Sanjay Sharma and Mr. Rajan Tandon have made false statements on oath that Mr. Lakshmi Mittal has disassociated himself from al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Hon ble Supreme Court after holding ArcelorMittal India Pvt. Ltd. ineligible because of its association with Uttam Galva and KSS Petron directed ArcelorMittal India Pvt. Ltd. to pay of NPA dues of all related/ connected entities within a period of two weeks. The said directions are not limited to Uttam Galva and KSS Petron only. Therefore, it would be incorrect to assert that pursuant to directions under Article 142, this Appellate Tribunal cannot evaluate the eligibility of ArcelorMittal India Pvt. Ltd. , more particularly, in view of the directions of the Hon ble Supreme Court to pay the dues within the period of two weeks. The directions of the Hon ble Supreme Court, in fact, require compliance of the provision of Section 29A. 18. Learned counsel for the Intervenor submits that ArcelorMittal India Pvt. Ltd. s reply dated 18th October, 2018 is based on an Affidavit dated 17th October, 2018 which is false and an attempt to mislead the Committee of Creditors and this Appellate Tribunal. 19. Relying on the decision of the Hon ble Supreme Court in Arcelormittal India Private Limited v. Satish Kumar Gupta and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Fourth attempt: On 10.07.2018, ESAHL, the present Applicant, again wrote to the Committee of Creditors for consideration of its purported debt restructuring plan. However, the same was also rejected by the Committee of Creditors on 17.07.2018. Pertinently, neither the decision dated 08.05.2018 nor the decision dated 17.07.20 18 is assailed by ESAHL before the Adjudicating Authority. e. Fifth attempt: In a bid to circumvent the judgment of the Hon'ble Supreme Court and to stall the CIRP of ESIL, ESAHL, on 25.10.2018 (the very same day when AMIPL's Resolution Plan was approved) approached the Committee of Creditors with allegedly another Settlement Plan offering to repay the entire dues of ESIL. Since, the Committee of Creditors, acting under the mandate of the Supreme Court Judgment, had already approved the Resolution Plan filed by AMIPL (after AMIPL had cleared all related party to become eligible), it refused to consider the alleged 'Settlement Plan' of the present Applicant. The decision of the Committee of Creditor was challenged before the Adjudicating Authority inter alia, praying f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with an attempt to somehow stall the resolution process. i. According to him, this Application is nothing but another malafide attempt to sabotage the entire resolution process. The Applicant herein did not take any ground raised in the present application, in its application filed before the Adjudicating Authority. Having failed to get any relief from the Adjudicating Authority and after withdrawing the appeals filed before this Appellate Authority, the Applicant has now come with unclean hands to sabotage the entire resolution process. As stated above, the applicant has made numerous attempts to stall this process somehow or the other, which has also resulted in the wastage of precious judicial time. 22. It is further submitted that the Applicant has no locus standi as the Settlement Plan submitted by the Applicant stands disallowed by the Adjudicating Authority and the appeal against the order stands withdrawn, the Applicant can t have any grievance and / or locus standi to re-agitate this issue. Evidently, the Applicant is misleading this Appellate Tribunal by stating that this Appellate Tribunal granted a leave to raise all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween Mr. L.N. Mittal and his brothers is untrue: * The fact that Mr. L.N. Mittal has recently provided funds to clear the dues of Mr. Pramod Mittal does not in any way contradict or otherwise run counter to the disassociation of businesses. That such funds have been paid on account of familial ties to assist the brothers in avoiding criminal prosecution does not mean that they are doing business together. * The Appellant is repeatedly attempting to draw business linkages between Mr. L.N. Mittal and his brothers when none have existed for more than 20 years. An alleged shareholding of 0.00058% of Navodaya or Mr. L.N. Mittal assisting in paying his brothers' dues in order that they avoid criminal prosecution will not establish any business connections between them or make them connecting persons in respect of AMIPL's bid for ESIL. c. Mr. L. N. Mittal was at the best a part of the promoter group of NCL (and, not a promoter) * Even if the averment stated in the application are taken on their face value, Mr. L.N. Mittal is not a promoter of NCL but is a part of the promoter group at best since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mod 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 case has not been argued before the authorities below, though raised in an L.A. by Numetal before the Appellate Authority, we will not countenance such an argument for the first time before this Court. ( Emphasis supplied) 26. An issue which has been settled by the Hon ble Supreme Court i.e., eligibility of ArcelorMittal India Pvt. Ltd. as a Resolution Applicant for Essar Steel India Limited , cannot be re-agitated again and again. Any such attempt is clearly barred by the principles of res judicata. Therefore, the Application preferred by the Appellant- Mr. Prashant Ruia and Intervenor- Essar Steel Asia Holdings Limited deserves to be rejected. 27. The issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of Guarantee comes to an end as the debt stands paid. The guarantee having become ineffective in view of payment of debt by way of resolution to the original lenders ( Financial Creditors ), the question of right of subrogation of the Appellant s right under Section 140 of the Contract Act and the right to be indemnified under Section 145 of the Contract Act does not arise. 32. We find no merit in this appeal preferred by Appellant- Mr. Prashant Ruia or submissions made on behalf of Intervenor- Essar Steel Asia Holdings Limited . It is accordingly dismissed. No costs. OTHER APPEALS 33. The question arises for consideration in most of the appeals are: ( i) Whether the distribution as shown in the Resolution Plan is discriminatory or not? ( ii) Whether the Financial Creditors can be classified on the ground of a Secured Financial Creditor having charge on project assets of the Corproate Debtor and Secured Financial Creditor having no charge on the project asset of the Corporate Debtor or on the ground that the Financial Creditor is an Unsecured Financial Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Department filed claim of ₹ 544 Crores approx., but it s claim has been notionally admitted at Re.1/- only by the Resolution Professional . Company Appeal (AT) (Insol.) No. 374 of 2019 (Indian Oil Corporation Ltd.) ( Operational Creditor ) 38. According to the Appellant- Indian Oil Corporation Ltd. , it had submitted a claim of ₹ 3762,58,74,503/- to the Resolution Professional , who has admitted notional amount of Re. 1/- Only. Company Appeal (AT) (Insol.) No. 376 of 2019 (Bharat Petroleum Corporation Limited) ( Operational Creditor ) 39. According to the Appellant- Bharat Petroleum Corporation Limited , it had submitted a claim of ₹ 503,83,46,437/- to the Resolution Professional who had only admitted notional amount of Re. 1/- Only. Company Appeal (AT) (Insol.) No. 349 of 2019 (Dakshin Gujarat Vij. Co. Ltd.) 40. The grievance of the Appellant- Dakshin Gujarat Vij. Co. Ltd. is that the Resolution Professional has not included the claim of the Appellant, though it raised bill of ₹ 5822.85 Crores towards the electricity c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68/2018 State Tax Officer 544,00,00,000 443/2018 Gujarat Energy Transmission Corporation Ltd. 896,52,00,000 325/2018 Bharat Petroleum Corporation Limited 443,05,33,379 53/2018 Bharat Petroleum Corporation Limited 503,83,46,437 469/2018 Indian Oil Corporation Ltd. 3762,58,74,503 52/2019 MSTC Limited 813,30,00,000 438/2018 GAIL India Limited 2,47,26,000 470/2018 Global Transnational Trading FZE NA The order passed by the Adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id in its favour. Company Appeal (AT) (Insol.) No. 279 of 2019 (Vinayak Road Carriers) 50. According to the Appellant, the Resolution Professional admitted the claim of the Appellant to the extent of ₹ 15,49,94,471/- (more than 98.91%). However, NIL amount (0%) has been proposed to be paid in favour of this Appellant. Company Appeal (AT) (Insol.) No. 345 of 2019 (Gujarat Energy Transmission Corporation Limited) 51. The grievance of the Appellant ( Gujarat Energy Transmission Corporation Ltd. ) is that it s claim has been adjudicated at ₹ 896.52 Crores, but NIL amount (0%) is proposed to be paid in the Resolution Plan . Company Appeal (AT) (Insol.) No. 290 292 of 2019 (Essar Bulk Terminal Limited) 52. The grievance of the Appellant is that though its claim of ₹ 703 Crores approx. is admitted, but NIL amount (0%) is proposed to be paid against its admitted claim. Company Appeal (AT) (Insol.) No. 242 of 2019 (I.A No. 1266 of 2019) (Palco Recycle Industries Ltd.- (Operational Creditor) 53. The Appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtained the appeal being within time from the date of knowledge. 58. According to the Appellants, the dues of the Corporate Debtor arising out of self-assessment under the Gujarat Electricity Duty Act, 1958 as well as sale of Electricity being governed under the provisions of the Gujarat Tax on sale of the Electricity Act, 1985 (repealed), a sum of ₹ 861.19 Crores is all crystallized dues inclusive of interest which has accrued due to delay in paying the duty and tax component. 59. The Corporate Debtor ( Essar Steel India Ltd ) had not paid the amount on the ground that it was entitled for exemption. Initially, the matter was moved before the Hon ble High Court of Gujarat. In Letters Patent Appeal No. 518 of 2010 pursuant to interim order passed in Special Civil Application No. 10946 of 2009, the Corporate Debtor was directed by the Hon ble Gujarat High Court to deposit the amount of ₹ 612.79 Crores. Accordingly, instalments were granted to the Corporate Debtor for complying with the said interim directions, out of the total claim of ₹ 1321.48 Crores. Thus, as on date the Appellants herein are entitled to ₹ 708 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim of the Appellant of ₹ 861.19 Crores i.e. ₹ 708.69 Crores towards Electricity Duty and ₹ 152.50 Crores towards Tax on sale of Electricity . 65. The Adjudicating Authority has noticed that the Resolution Professional has no jurisdiction to decide and/ or reject the claim, it is only required to collate the claim. The Resolution Professional on behalf of the Corporate Debtor having moved before the Hon ble Supreme Court even during the pendency of the resolution process and having lost, it was the duty of the Resolution Professional to bring the aforesaid facts to the notice of the Adjudicating Authority for accepting the claim. 66. In that view of finding aforesaid, the prayer made in Company Appeal (AT) (Insol.) No. 580 of 2019 for inclusion of its claim of ₹ 861.19 Crores is allowed. Company Appeal (AT) (Insol.) No. 551 of 2019─ (M/s. NTPC Ltd.) 67. The case of the Appellant- National Thermal Power Corporation Ltd. ( NTPC Ltd. ) is that it has preferred I.A. No. 62 of 2019 under Section 60(5) of the I B Code being aggrieved by partial rejection of its claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement read with Addendum to such Agreement, the borrower (EPGL) was required to arrange post-dated cheques from the present Corporate Debtor to the satisfaction of the Appellant towards the Debt Servicing Obligation. 73. It was submitted that the Corporate Debtor vide its letter dated 13th May, 2016, has issued 45 crossed post-dated cheques in favour of the Appellant- L T Infrastructure Finance Company Limited for a total sum of ₹ 61,71,68,861/- and thereby, the Appellant has assumed its liability in the nature of a guarantor to secure the loan/ financial facility, given by Appellant to the principal borrower- EPGL . 74. The Resolution Professional took specific plea that the Corporate Debtor is not a party to any of the loan agreement entered into between the Appellant- L T Infrastructure Finance Company Limited and the borrower (EPGL), nor at any point of time the Corporate Debtor was a signatory to the Facility Agreement or the Addendum or any Promoter Obligation Agreement . Further, the Corporate Debtor did not stand as a guarantor to the above stated loan because such guarantee requires a tripartite agreement e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding pending before the Hon ble High Court initiated by the Appellant to recover its dues against the Corporate Debtor were ordered to be sine die . 79. It is stated that after the Resolution Plan was approved on 8 th March, 2019, the period of Moratorium having completed, the Appellant herein submitted its claim of ₹ 1204.15 Crores to the Resolution Professional on 25th March, 2019 for appropriate distribution in terms with the order of the Adjudicating Authority. 80. From the facts as noticed above, we find that the matter is pending adjudication before the Arbitral Tribunal and the Hon ble High Court. Therefore, the Appellant had not filed its claim before the Resolution Professional during the Corporate Insolvency Resolution Process . It has filed such claim after completion of the same on 25th March, 2019 i.e. much after the impugned order passed by the Adjudicating Authority on 8th March, 2019. 81. In the aforesaid background, no relief can be granted by this Appellate Tribunal. However, it is open to the Appellant- Gail (India) Ltd. to pursue the matter before the Arbitral Tribunal or the Hon ble Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Insol.) No. 428 429 of 2019 (Hill View Hire Purchase Pvt. Ltd./ D.R. Patnaik) 86. In both the appeals, similar prayer has been made. One has been filed on behalf of Hill View Hire Purchase Pvt. Ltd. through D.R. Patnaik, Director and authorised signatory, claiming to be a Financial Creditor . Another appeal has been filed by D.R. Patnaik, the Director of the said company in his personal capacity for holding him to be a Financial Creditor . 87. According to both the Appellants, it entered into an agreement with the Corporate Debtor on 14th August, 2014 and granted financial assistance comprising Subordinated Rupee Loan of ₹ 50,00,00,000/- to the Corporate Debtor . The financial assistance was granted for financing procurement of Iron Ore Fines by the Corporate Debtor from the miners/ traders at Odisha and also to export pellets manufactured from the said Iron Ore Fines. Pursuant to the agreement, the Appellant disbursed to the Corporate Debtor an amount of ₹ 45,00,00,000/-. 88. The Corporate Debtor was making timely payments against the interest amount until 25th January, 2017. Thereafter, no amount h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence in support of their claim, therefore, it was not accepted by the Resolution Professional . We are also not in a position to verify the genuinety of one or other documents, in absence of any such record or enclosure. The Appellants have enclosed copy of e-mails and corrected copy of relevant pages of list of creditors dated 19th January, 2018 but it cannot be relied upon to hold that one or the other Appellant is a Financial Creditor . In fact, none of the Appellants was accepted as a Financial Creditor and therefore were not made member(s) of the Committee of Creditors . They should have moved earlier before this Appellate Tribunal for appropriate relief. 94. Further, as in both the appeals same amount has been claimed on the basis of same set of pleading by two different Appellants, we have a doubt relating claim made by one or other Appellant. However, without expressing any opinion, we dismiss both the appeals in absence of any evidence in support of their claims. Company Appeal (AT) (Insol.) No. 375 of 2019 (M/s. Karur Vysya Bank Ltd.) 95. According to the Appellant, the Resolution Professional admitted a sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying the debt, the Standard Chartered Bank invoked the guarantee given by the Corporate Debtor on 7th December, 2015 followed by notice issued under Section 434 of the Companies Act, 1956 to the Corporate Debtor on 18th April, 2016. 102. Having received no positive reply, the Appellant- Standard Chartered Bank filed application under Section 7 of the I B Code against the Corporate Debtor which was admitted on 2nd August, 2017. During the Corporate Insolvency Resolution Process , the Appellant- Standard Chartered Bank submitted its claim before the Resolution Professional to the tune of ₹ 3487.09 Crores. Out of this, ₹ 2646.05 Crores represents the secured principal outstanding of the Appellant. The claim was collated by the Resolution Professional , in respect of which the Appellant has no grievance. 103. The Appellant has challenged the impugned order dated 8th March, 2019 approving the Resolution Plan , so far it relates to distribution of amount in favour of the Appellant. It was discriminated having not equated with other Financial Creditors . All the Financial Creditors have been allowed 91.99% of their clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PLAN OF ACRELORMITTAL INDIA PRIVATE LIMITED AS APPROVED BY THE COMMITTEE OF CREDITORS ( COC ) OF ESSAR STEEL INDIA LIMITED ( CORPORTE DEBTOR ) ON 25th OCTOBER, 2018 AND AS PLACED BEFORE THE NATIONAL COMPANY LAW TRIBUNAL FOR APPROVAL IN TERMS OF THE CODE S.No Category of Stakeholder Name of the stakeholder Amount admitted by Resolution Professional (In Rs. Crores) Proposed payment under the Successful Resolution Plan as approved by the COC on 25 October, 2018 (In Rs. Crores Percentage of admitted claim allowed under the Successful Resolution Plan as approved by the COC on 25 October, 2018 (In %) A. Workmen Employees Workmen Employees * 18.07 18.07 100% B Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 978.63 900.22 91.99% EARC Trust SC 326 10.00 9.20 91.99% Bank of Baroda 5.00 4.60 91.99% Punjab National Bank 2,936.25 2,701.01 91.99% Deutsche Bank 2,829.88 2,603.17 91.99% ICICI Bank 2,294.11 2,110.31 91.99% Union Bank of India 2,122.60 1,952.55 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As set out above at B1 and B2 C. Unsecured Financial Creditors C1 Unsecured Financial Creditors (With admitted claims less than ₹ 10,00,000) Melwani Gopal Tharumal and/or Melwani Vinod 0.08 0.08 100% Arvind Parakh HUF 0.08 0.08 100% Mr. Arvinlal N Shah Mrs. Indumati A. Shah 0.08 0.08 100% Mr. Jiwat K. Dansanghani and Mrs. Neetu J Dansanghani 0.03 0.03 100% Nathu Ram Verma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rore (i.e. ~1,600 operational creditors out of a total of 1,855 operational creditors in No.) - ~196 ~196 100% D2 Operational Creditors with admitted claim amount equal to or more than ₹ 1 Crores - ~4,877.99 NIL NIL Total (D1 + D2) **5073.99 ~196 As set out above at D1 and D2 * Claims as admitted by the Resolution Professional as reflected in the list of creditors updated as of 24 October, 2018. The Successful Resolution Plan was approved by the COC on 25 October, 2018 basis the voting share and claim amounts set out in this list. ** As on 25 October, 2018, the date on which the Successful Resolution Plan was approved by the COC, the operational debt as admitted by the Resolution Professional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to learned Senior Counsel for the Standard Chartered Bank , the Committee of Creditors does not enjoy any authority to delegate itself the role of the Resolution Applicant including the manner of distribution and thereby taking judicial/ adjudicatory decisions, like distribution of proceeds and the same are exclusively within the domain of the Adjudicating Authority, if found discriminatory. 114. It is brought to our notice that the Committee of Creditors instead of going through the Resolution Plan for approval by vote, delegated the power to a Sub-Committee/ Core Committee . 115. The Appellants have also alleged bias against the Core Committee / Sub-Committee and the Committee of Creditors and alleged discrimination. 116. Mr. Kapil Sibal, learned Senior Counsel for the Standard Chartered Bank submitted that ArcelorMittal India Pvt. Ltd. - ( Successful Resolution Applicant ) all the time informed the Committee of Creditors , this Appellate Tribunal and the Hon ble Supreme Court that it is ready to offer upfront amount of ₹ 42,000 Crores. It is alleged that it is because of secret negotiations by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of ₹ 42,000/- Crores being 100% payment to the Financial Creditors , which is as follows: 121. The records suggest that in the 9th Meeting of the Committee of Creditors held on 21st March, 2018, the representative of the State Bank of India recommended formation of a Core Committee so as to facilitate representation before the Adjudicating Authority in view of the challenge to the ineligibility of Numetal Limited and ArcelorMittal India Pvt. Ltd. under Section 29A of the I B Code . The Standard Chartered Bank did not vote in respect of constitution of the Core Committee / Sub- Committee . The function of the Core Committee was for operational convenience, limited to facilitating representation before the Adjudicating Authority. 122. In the 16th Meeting of the Committee of Creditors held on 31st May, 2018, the Standard Chartered Bank requested to be a part of the Sub Committee. In the said meeting, it was stated that there was no immediate requirement considering that the limited purpose for which the sub committee was formed, i.e. filing of application before the NCLAT, has already been com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tandard Chartered Bank to be paid its 100% principal outstanding and (b) in doing so to secretly settle with the major lenders of Odisha Slurry Pipeline Infrastructure Limited (such major, lenders are the creditors constituting the Core Committee of Essar Steel India Ltd. s Corporate Insolvency Resolution Process ) whose outstanding debt in Odisha Slurry Pipeline Infrastructure Limited constitutes 65% (approx..) of the total debt of Odisha Slurry Pipeline Infrastructure Limited . 128. According to him, this was achieved as under: * Reduced Standard Chartered Bank s entitlement by approx. ₹ 2585/- crores (₹ 2646 crores ₹ 60 Crores) corresponding to the reduction of ₹ 2,500/- crores in the upfront amount (₹ 42,000 ₹ 39,500); * The amount reduced from Standard Chartered Bank s Share of 100% principal amount is utilized for payment to other Secured Financial Creditors and in the process the said other Secured Financial Creditors would not only receive 100% of the principal outstanding but would also recover 40% of the interest and has left Standard Chartered Bank to take 1.7% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( 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) confirms 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 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 5 [sixtysix] per cent. of voting share of the financial creditors, after considering its feasibility an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount it proposes to pay one or other Creditors, including the Operational Creditors and the Financial Creditors . 133. Sub-section (3) of Section 30 suggests that the Resolution Professional is required to present before the Committee of Creditors , the Resolution Plan which confirms the conditions referred to in sub-section ( 2) that means if the Resolution Plan do not show the distribution amongst the Financial Creditors and the Operational Creditors , it cannot be placed before the Committee of Creditors . 134. Sub-section (4) of Section 30 provides that the Resolution Plan is required to be approved by a vote of not less than 66% of voting share of the Financial Creditors , after considering its feasibility and viability and such other requirements as may be specified by the Board . Thereby, all members of the Committee of Creditors who are present are required to go through the Resolution Plan to find out whether it is in accordance with sub-section (2) of Section 30; and whether it s feasible and viable and meets all the requirements as specified by the Board as also whether the Resolution App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stakeholders, including Financial Creditors and the Operational Creditors , of the Corporate Debtor . Therefore, we hold that the distribution of amount to the Operational Creditors , Financial Creditors and other stakeholders are to be made by the Resolution Applicant and required to be reflected in the Resolution Plan . 137. The RFP issued by the Resolution Professional on 24th December, 2017 contains further clauses in respect of the above, relevant of which are as follows:- ( i) 4. RESOLUTION PLAN PROCESS 4.1 . It is hereby clarified that if any resolution plan (or the terms thereof which is received by the Resolution Professional is not pursuant to this Request for Proposal document and/or such plan is not in accordance with the terms and conditions set out in this Request for Proposal document, then such resolution plan shall not be considered eligible for evaluation by the Committee of Creditors. ( ii) 4.6 Contents of the Resolution Plan 4.6.1 The Resolution Applicant shall mandatorily include the following in its Resolution Plan, as set out in Section 30(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied Resolution Plan on 22nd October, 2018. In Part VIII which deals with the treatment of various stakeholders (distribution of amount to the stakeholders), the ArcelorMittal India Pvt. Ltd. proposes to pay to the Financial Creditors ₹ 39,500 Crores and delegated the power to the Committee of Creditors as recorded in Part VIII which states that: The Resolution Applicant has empowered the Committee of Creditors to decide the manner in which the financial package being offered by the Resolution Applicant to the Financial Creditors will be distributed to the Secured Financial Creditors. All such allocations to the Financial Creditors will be binding on all stakeholders. 143. The final Resolution Plan delegating the power of ArcelorMittal India Pvt. Ltd. to Committee of Creditors being against the provision of sub-section (2) of Section 30 and Regulation 38 (1A), the Committee of Creditors should have requested the ArcelorMittal India Pvt. Ltd. ( Resolution Applicant ) to distribute the amount amongst the Financial Creditors and the Operational Creditors and other stakeholders. 144. The su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat will be used to pay the- ( a) insolvency resolution process costs and provide that the [insolvency resolution process costs, to the extent unpaid, will be paid] in priority to any other creditor; ( b) liquidation value due to operational creditors and provide for such payment in priority to any financial creditor which shall in any event be made before the expiry of thirty days after the approval of a resolution plan by the Adjudicating Authority; and ( c) liquidation value due to dissenting financial creditors and provide that such payment is made before any recoveries are made by the financial creditors who voted in favour of the resolution plan. Post amendment, Regulation 38 reads as follows: 38. Mandatory contents of the resolution plan .- ( 1) The amount due to the operational creditors under a resolution plan shall be given priority in payment over financial creditors. ( 1-A) A resolution plan shall include a statement as to how it has dealt with the interests of all stakeholders, including financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor or Unsecured Creditor can be looked into by the Committee of Creditors based on facts and circumstances of each case. 151. However, the aforesaid decision is not applicable in the present case. In the present case, we have held that the Resolution Applicant is required to decide the manner in which the distribution to be made amongst all the stakeholders including the Financial Creditors , Operational Creditors and other Creditors. It is only when such distribution is found to be discriminatory, in such case, to remove such discrimination and to find out what should be the percentage of the claim amount payable to one or other Financial Creditors or Operational Creditors , the Committee of Creditors may negotiate and may ask the Resolution Applicant to prepare revised chart re-distributing the amount in favour of Creditors in a manner which is non-discriminatory by providing same treatment to all the stakeholders. 152. Mr. Gopal Subramanium, learned Senior Counsel relied on Banking Law Reforms Committee reports published in November, 2015, but none of the reports empowers the Committee of Creditors to decide the distribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a Corporate Insolvency Resolution Process . The commercial decisions of the Committee of Creditors are not ordinarily open to any analysis, evaluation or judicial review by the Adjudicating Authority or the Appellate Authority and hence not justiciable. 157. The I B Code envisages a Resolution Plan for reorganisation of a defaulting Corporate Debtor . The selection and approval of the best Resolution Plan requires two abilities, namely, the ability to restructure the liabilities and the ability to take commercial decisions. In contrast with the Operational Creditors who may pursue immediate realisation of their dues, the Financial Creditors generally have the resilience to wait for realisation of their dues post reorganisation. They have also the ability to determine if a Resolution Plan will achieve the objectives of the I B Code . In view of their abilities, the Committee of Creditors comprises Financial Creditors . The Committee of Creditors , therefore, has a duty to take commercial decisions which further the objectives of the I B Code and do not allow the interests of Financial Creditors overshadow the interests of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers to assess the viability and feasibility of the Resolution Plans ; etc. to enable prospective Resolution Applicants design and submit competing Resolution Plans for reorganisation of the Corporate Debtor . ( c) The Committee of Creditors must ensure that the Corporate Debtor continues as a going concern and its value does not deteriorate during Corporate Insolvency Resolution Process . For this purpose, it must appoint a competent IP who can run the business of the Corporate Debtor as a going concern at its optimum potential, provide complete, correct and timely information about the Corporate Debtor to resolution applicants for design of resolution plans, and safeguard the assets of the Corporate Debtor . It must facilitate interim finance, and co-operate in detection of avoidance transactions, wherever required. It must expedite various tasks for closure of the Corporate Insolvency Resolution Process at the earliest. ( d) The Code envisages the Committee of Creditors to consider only those Resolution Plans which (i) have been received from credible and capable Resolution Applicants , (ii) comply with the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Permissibility of classification 161. Section 3(10) defines Creditor means: 3. Definitions.─ ( 10) creditor means any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree-holder 162. Thus, it is apparent that the creditor includes a Financial Creditor , an Operational Creditor , a Secured Creditor , an Unsecured Creditor and a decree-holder. 163. Section 5(7) defines Financial Creditor means any person to whom a financial debt is owed, whereas Financial Debt has been defined under Section 5(8) means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money , which are as follows: 5. Definitions.─ ( 7) financial creditor means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to; ( 8) financial debt means a debt alongwith interest, if any, which is disb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l debt is owed by the Corporate Debtor , which debt is disbursed against the consideration for time value of money, whether they come within one or other clause of Section 5(8), all of such person form one class i.e. Financial Creditor they cannot be sub-classified as Secured or Unsecured Financial Creditor for the purpose of preparation of the Resolution Plan by the Resolution Applicant . Distribution of debts to the Financial Creditors , Operational Creditors and Others 165. The distribution of debts to the Financial Creditors and the Operational Creditors during the Corporate Insolvency Resolution Process cannot be equated with distribution of debts to all stakeholders after the liquidation for the following reasons: 166. The Resolution Applicant proposes the distribution of debt to the Financial Creditors , Operational Creditors and other stakeholders out of the amount proposed to be paid by the Resolution Applicant . 167. On the other hand, after liquidation, debt is distributed out of the assets of the Corporate Debtor in terms of Section 53 of the I B Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceeds to the relevant recipient shall be distributed after such deduction. Explanation. For the purpose of this section- ( i) it is hereby clarified that at each stage of the distribution of proceeds in respect of a class of recipients that rank equally, each of the debts will either be paid in full, or will be paid in equal proportion within the same class of recipients, if the proceeds are insufficient to meet the debts in full; and ( ii) the terms workmen s dues shall have the same meaning as assigned to it in section 326 of the Companies Act, 2013 (18 of 2013). 168. A Resolution Plan shows upfront payment in favour of the Creditors including the Financial Creditors , Operational Creditors and the other Creditors. It is not a distribution of assets from the proceeds of sale of liquidation of the Corporate Debtor and, therefore, the Resolution Applicant cannot take advantage of Section 53 for the purpose of determination of the manner in which distribution of the proposed upfront amount is to be made in favour of one or other stakeholders namely- the Financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of distribution of proposed amount amongst stakeholders in the Resolution Plan by the Resolution Applicant . 173. In the present case, we have seen that the Standard Chartered Bank has been accepted as a Secured Financial Creditor . However, it has been discriminated by the Committee of Creditors on the ground of it having no charge on project assets of the Corporate Debtor . Such ground is also not based on the fact, the Standard Chartered Bank having already been held as a Secured Financial Creditor having already invoked its guarantee. 174. On the contrary, Operational Creditor is defined in sub-section (20) of Section 5 which is to be read with Operational Debt as defined in subsection (21) of Section 5, and read as follows: 5. Definitions.─ ( 20) operational creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred; ( 21) operational debt means a claim in respect of the provision of goods or services including employment or a debt in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HE COMMITTEE OF CREDITORS ( COC ) OF ESSAR STEEL INDIA LIMITED ( CORPORTE DEBTOR ) ON 25th OCTOBER, 2018 AND AS FURTHER AMENDED BY THE COC POST ORDER DATED 20TH MARCH 2019 OF THIS HON BLE TRIBUNAL IN ITS 22ND MEETING HELD ON 27THMARCH 2019 S.No Category of Stakeholder Name of the stakeholder Amount admitted by Resolution Professional (In Rs. Crores) Proposed payment under the Successful Resolution Plan as approved by the COC on 25 October, 2018 and as further amended by the COC pursuant to its 22nd meeting held on 27th March, 2019 (In Rs. Crores) Percentage of admitted claim allowed under the Successful Resolution Plan as approved by the COC on 25 October, 2018 and as further amended by the COC pursuant to its 22nd meeting held on 27th March, 2019 (In %) A. Workmen Employees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EARC Trust SC 137.25 123.25 89.80% 327 EARC Trust SC 337 1,273.78 1,143.82 89.80% EARC Trust SC 323 978.63 878.77 89.80% EARC Trust SC 326 10.00 8.98 89.80% Bank of Baroda 5.00 4.49 89.80% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 87.79 89.80% SREI Infrastructure Finance 175.28 157.39 89.80% Total(B1) 45,559.24 40,910.74 89.80% B2. Secured Financial Creditors (having no charge on project assets of the Corporate Debtor) Standard Chartered Bank 3,487.10 59.26 1.70% Total (B2) 3,487.10 59.56 1.70% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank of Baroda 7.70 0.31 4.08% Standard Chartered Bank 70.34 2.87 4.08% The Bank of New York Mellon, London Branch 202.50 8.26 4.08% Inox Air Products Private Limited 78.48 3.20 4.08% Axis Bank 61.91 2.53 4.08% Total (C2) - 426.51 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 41,970 crores earmarked for secured financial creditors under the Successful Resolution Plan of ArcelorMittal India Private Limited, for payment to the operational creditors of the Corporate Debtor who have not been proposed any payment against their admitted claims under the Successful Resolution Plan. In the event the quantum of admitted claims of operational creditors increases beyond the aggregate amount of ₹ 5073.99 crores (as admitted by the Resolution Professional vide the list of creditors as updated on 5 March 2019), the ex-gratia payment approved by 70.73% of the COC in its 22nd meeting for payment to operational creditors as set out above shall, at all times, remain capped at ₹ 1,000 crores only. *** As on 25 October, 2018, the date on which the Successful Resolution Plan was approved by the COC, the operational debt as admitted by the Resolution Professional was ₹ 5,058.66 Crores. The amount reflected here represents the operational claims as admitted by the Resolution Professional and as reflected in the list of creditors updated as of 5 March, 2019. As per the observations issued by the Resolution Professional p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of disputed claims. 3. Under the Insolvency and Bankruptcy Board of India (Insolvency Resolution for Corporate Persons) Regulations, 2016 ( CIRP Regulations ), the claims had to be lodged within a prescribed time. If a purported creditor has not lodged his claim within the prescribed time, the right to make a claim stands forfeited. 4. The percentage figure is the quotient arrived at by dividing the total amount available for distribution by the total amount of the claims. Thus in order to arrive to a figure of the percentage of the pro-rata distribution to each OC, it is necessary to fix two elements in the equation- the numerator and the denominator . 5. The first element in the equation is in the total amount available for distribution to the OCs. For the present, this amount may be assumed to be X . This will be the numerator. 6. The next element necessary is the denominator, which is the aggregate amount of debt to be payable to the OCs. This may be assumed to be Y . 7. The amount payable to each OC is ascertained by first arriving at the Quotien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the higher authorities. b. This Appellate Authority may make an order allowing all such OCs (who are dissatisfied by the amount of claim admitted and/or rejected by the RP) to lodge their respective claims within a defined period of time (after final approval of the resolution plan) with the Adjudicating Authority. c. It is a matter of law that related parties are entitled to payment of whatever may be the sum due and payable as much as an unrelated party. However, the claims of related parties cannot be taken at face value. The RP would have to evaluate the goods and/or services provided by the related parties to arrive at the fair amount to be paid to such related parties. This would be a part of the process of verification of claims. This would finally be decided upon by the NCLT. d. In the present case the Chartered Accountant may be asked to verify the bona fides of a claim of a related party to ensure that extravagant claims based on transactions not at arms-length are not honoured to the detriment to the body of OCs. e. The Chartered Accountants firm, as selected by this Hon ble Appellate Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of the order passed by the Adjudicating Authority. Same is reflected hereunder and which we have accepted: I.A. No. Name of Creditor Amount of claim (Rs) as per I.A. as per pages 34-41 of NCLT Order 28/2018 Dakshin Gujarat Vij. Co. Ltd. 313,23,33,224 446/2018 Dakshin Gujarat Vij. Co. Ltd. 5882,28,00,000 467/2018 Dakshin Gujarat Vij. Co. Ltd. 606,49,00,000 468/2018 State Tax Officer 544,00,00,000 443/2018 Gujarat Energy Transmission Corporation Ltd. 896,52,00,000 325/2018 Bharat Petroleum Corporation Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittee of Creditors in their chart has informed that the Resolution Professional has registered further operational claims of approx. ₹ 13,767.76 Crores and has further admitted notional amount of Re. 1/- for certain operational claims aggregating the approx. ₹ 2,722.50 Crores subject to final outcome of the disputes pending with respect to such operational claims. 194. In the aforesaid circumstance, we are not deliberating on the disputed claim of M/s. Essar Power Limited and M/s. Bhander Power Limited . 195. In the Information Memorandum , the Resolution Professional has shown the admitted claims, as follows: S. No. Category of Stakeholder Amount claim (In Rs. Crores) Amount admitted by the Resolution Professional (In Rs. Crores) 1 Corporate Debtor ₹ 82,541 Cr. 2 Financial Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,37,67,77,13,543 Following claims have also been accepted by this Appellate Tribunal 12 ONGC (Total Claim) minus (-) Claim already admitted reflected in Operational Claim of ₹ 5,074 cr 7,46,81,468 (-) 47,59,512 6,99,21,956 Additional claim amount of ONGC as admitted by Adjudicating Authority accepted by this Appellate Tribunal 13 NTPC (Total Claim) minus (-) Claim already admitted reflected in Operational Claim of ₹ 5,074 cr 10,45,00,264 (-)1,19,44,783 9,25,55,481 Additional claim amount of NTPC as admitted by Adjudicating Authority accepted by this Appellate Tribunal Therefore, the total claim of Operational Creditors comes to- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,91,92,20,90,980 Therefore Financial Creditors will get 60.7% of their claim of ₹ 4,94,73,00,00,000/- (i.e) =₹ 3,00,30,44,50,000/- Operational Creditors will get 60.7% of their claim of ₹ 1,97,19,20,90,980/- (i.e) = ₹ 1,19,69,55,49,224/- Grand Total = ₹ 4,19,99,99,99,224/- *(₹ 4,20,00,00,00,000 approx.) Distribution amongst Financial Creditors Operational Creditors S. No. Category of Stakeholders %age Amount (in Rs.) A. Operational Creditors 60.7% 1. Operational Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IDBI Bank 2,481.61 1,506.3372 1,506.344 60.7% Canara Bank 3,798.06 2,305.4224 2,305.424 60.7% EARC Trust SC 114 602.39 365.6507 365.654 60.7% EARC Trust SC 187 92.25 55.9957 56.004 60.7% EARC Trust SC 217 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,829.88 1,717.7372 1,717.744 60.7% ICICI Bank 2,294.11 1,392.5248 1,392.529 60.7% Union Bank of India 2,122.60 1,288.4182 1,288.424 60.7% Bank of India 1,985.08 1,204.9436 1,204.944 60.7% Corporation Bank 1,566.62 950.9384 950.944 60.7% Syndicate Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70.34 42.6964 42.704 60.7% The Bank of New York Mellon, London Branch 202.50 122.9175 122.924 60.7% Inox Air Products Private Limited 78.48 47.6374 47.644 60.7% Axis Bank 61.91 37.5794 37.584 60.7% B. Financial Creditors B1. Financial Creditors (with adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Workmen Employees - 18.07 18.07 18.07 100.00% TOTAL 69,192.34 41,999.86 42,000.000 * difference of amount adjusted 198. The details of all the Financial Creditors being available, the final distribution shown by us which is to be distributed amongst them. The details of the Operational Creditors , which are larger in number have not been shown and, therefore, except the workmen and employees and those whose admitted claim is less than ₹ 1 Crore, the distribution has not been shown by us. For the said reason, we allow the Committee of Creditors to take help of a reputed Chartared Accountant Firm or a legal firm for calculat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Particulars Aug 17- Mar 18 (Audited) Apr 18- Feb 19 (Provisional) ** Total for CIRP Mar 2019 (Provisio nal)** Total EBIDTA from Operations 1,759 2,241 4,000 229 4229* * Figures from April 1, 2019 till date are not available. However, EBIDTA for April 2019 month (Post CIRP period) is estimated at about ₹ 300 Crores. ** These are provisional amounts and are subject to annual statutory audit. ( 4) The above figure (of ₹ 4229 crores) includes an amount of INR 734 Crores incurred towards Finance Costs (Financial Lease, LC/BG Charges to Banks and Finance charges payable to suppliers etc. as per contractual terms) for maintaining the Corporate Debtor as a going concern. Therefore t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital, the said amount of ₹ 2,500 Crores should be adjusted out of the profit generated and the rest amount after the audit may be distributed amongst the Creditors (both the Financial Creditors and the Operational Creditors ). 208. It was further submitted that the balance amount be kept in a designated Escrow Account if the Operational Creditors having disputed the claim, avail remedy under Section 60(6) of the I B Code . 209. The suggestions made by Mr. Harish Salve was opposed by both counsel for the Financial Creditors and the Operational Creditors as according to them, the said amount cannot be treated to be amount invested by ArcelorMittal India Pvt. Ltd. . 210. Having heard rival contentions, we are of the view that the amount of profit if generated during the Corporate Insolvency Resolution Process , cannot be given to the Successful Resolution Applicant as the Successful Resolution Applicant has not invested any money during the Corporate Insolvency Resolution Process . If one or other Financial Creditors would have invested money during the Corporate Insolvency Resolution Process to keep t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, after approval of the plan under Section 31, the claim of all the Creditors is extinguishing against the Corporate Debtor . 215. In the preceeding paragrapgh, we have noticed the suggestion made by Mr. Harish Salve, learned Senior Counsel that the Operational Creditors having disputed claims can avail remedy under Section 60(6) of the I B Code . Thereby, over a period of time as the figure of aggregate amount of debt payable to the Operational Creditors (as shown to be Y ) becomes final and stands reduced (by final rejection of disputed claims), additional distributions can be made of the incremental figure of Z , which is the percentage of distribution being arrived at the time. 216. Therefore, the submission that after approval of the plan under Section 31, the claim of the creditors estinginguished against the Corporate Debtor is contratry to the suggestion made by Mr. Harish Salve, learned Senior Counsel that the Operational Creditors having disputed claim can avail remedy under Section 60(6) of the I B Code as noticed above. Section 60(6) reads as follows: 60. ( 1) The Adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e I B Code . 219. In M/s. Roma Enterprises v. Mr. Martin S.K. Golla, Resolution Professional Company Appeal (AT) (Ins.) No. 232 of 2018 , this Appellate Tribunal by its order dated 6th May, 2019 held that where the claim of an Operational Creditor involves a disputed question of fact as it cannot be decided by the Resolution Professional or the Adjudicating Authority, such Operational Creditor can raise such issue and claim at an appropriate stage i.e. after Moratorium is over, which reads as follows: 4. In Swiss Ribbons Pvt. Ltd. Anr. vs. Union of India Ors.─ 2019 SCC OnLine SC 73 , the Hon ble Supreme Court has already held that the Resolution Professional has no jurisdiction to decide the claim of one or other party. This Appellate Tribunal has also held earlier that the Resolution Professional can only collate the claim. Apart from the fact that earlier the same issue was raised and we did not entertain the appeal in view of the fact that nobody appeared on behalf of the Appellant and observed that the Appellant can raise such issue and cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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