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TMI Blog2021 (3) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... AOR Mr. David Rao, Adv Mr. M. S. Vishnu Sankar, Adv. Mr. Sriram Parakkat, AdvMs. Athira G. Nair, Adv Mr. Atul Sharmafor M/S LAWFIC Mr. Gaurav Agrawal, AOR JUDGMENT B. R. GAVAI, J. 1. Leave to file Civil Appeal in Diary No. 24125 of 2020 is granted. 2. All these appeals, assail the judgment and order of the National Company Law Appellate Tribunal, New Delhi (hereinafter referred to as "NCLAT") dated 5.8.2020, passed in Company Appeal (AT) (Insolvency) Nos. 344345 of 2020. 3. By the said judgment and order dated 5.8.2020, NCLAT has allowed the appeals filed by Kotak Investment Advisors Limited (hereinafter referred to as "KIAL"), respondent No.1 herein, aggrieved by two separate orders dated 28.11.2019 passed by National Company Law Tribunal, Mumbai Bench (hereinafter referred to as "NCLT" or "Adjudicating Authority") in M.A. No.1039 of 2019 and M.A. No. 691 of 2019. NCLAT has set aside the said orders passed in the said M.As. M.A. No.1039 of 2019 was filed by KIAL objecting to grant of approval to the resolution plan submitted by Kalpraj Dharamshi and Rekha Jhunjhunwala, a consortium, (hereinafter referred to as "Kalpraj"), which is appellant in Civil Appeal Nos. 29432944 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution Plans to be submitted on or before 13.12.2018. The fifth and the last Form 'G' came to be issued on 11.12.2018, which required the Resolution Plans to be submitted on or before 8.1.2019. KIAL, the appellant before NCLAT (respondent No.1 herein) and one Karvy Data Management Systems Limited submitted their Resolution Plans on the last date as stipulated in the last and fifth Form 'G' i.e. on 8.1.2019. One another applicant i.e. WeP Solutions Ltd. submitted its Resolution Plan jointly with one Sattva Real Estate Private Limited (hereinafter referred to as "WeP") on 13.1.2019. The appellant in Civil Appeal Nos. 29432944 of 2020 i.e. Kalpraj submitted its EOI and Resolution Plan to RP on 27.1.2019. On 29.1.2019, KIAL sent an email to RP, raising its objection permitting Kalpraj to submit Resolution Plan, beyond the prescribed time limit. In the meeting of CoC held on 30.1.2019, the Resolution Plan of Kalpraj was placed before CoC. In the said meeting, CoC resolved to direct all the applicants to submit revised plans. Accordingly, an email was sent to KIAL directing it to submit its revised plan. Accordingly, KIAL submitted its revised plan on 1.2.2019. By another email d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls filed by KIAL. Vide the said order, NCLAT, while setting aside both the orders dated 28.11.2019, passed by NCLT, also directed CoC to take a decision afresh, in the light of the directions issued in its order, regarding consideration of the Resolution Plans, which were submitted prior to the prescribed date as per last Form 'G'. This was directed to be done in a period of ten days from the date of the said order. NCLAT further directed, that if no decision was communicated to the Adjudicating Authority i.e. NCLT and since the timeline for completion of CIRP had already expired, the Adjudicating Authority was to pass an order for liquidation of the corporate debtor. 5. Being aggrieved by the aforesaid order passed by NCLAT, four appeals have been filed before this Court, the details thereof are as under: Case No. & Cause title Cause title Particulars of the appellant C.A. No.29432944/ 2020 Kalpraj Dharamshi & anr. Vs. Kotak Investment Advisors Ltd. & Anr. Successful Resolution Applicant C.A. No.31383139 of 2020 Deutsche Bank AG vs. Kotak Investment Advisors Ltd. & Ors. Financial Creditor C.A. No.29492950 of 2020 Krishna Chamadia (Erstwhile Resolution Professi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, which decision is taken as per the commercial wisdom, is not justiciable before the Adjudicating Authority. He also relied on the judgment of this Court in the case of Committee of Creditors of Essar Steel India Limited through Authorised Signatory vs. Satish Kumar Gupta & Ors. (2019) SCC Online SC 1478 9. Shri Rohatgi further submitted, that as held by this Court in Innoventive Industries Ltd. vs. ICICI Bank & Anr. (2018) 1 SCC 407, I&B Code is a complete code in itself. He submitted, that Section 61(2) of the I&B Code provides, that the decision of the Adjudicating Authority (i.e. NCLT) may be challenged before NCLAT within 30 days. He submitted, that an appeal would be tenable within a further period of 15 days, only when NCLAT comes to a satisfaction, that there was a sufficient cause for not filing the appeal within a period of 30 days. He submitted, that since the I&B Code is a complete Code, neither Section 5 nor Section 14 of the Limitation Act, 1963 (hereinafter referred to as "the Limitation Act") would be applicable. He submitted, that the judgment of NCLT was delivered on 28.11.2019; certified copies of the same were made available to KIAL on 18.12.2019; and appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect from 28.11.2019. viii. On 27.12.2019, the Appellants replaced the Bank Guarantee issued by Deutsche Bank for INR 136,66,71,090/( Rupees One Hundred ThirtySix Crores SixtySix Lakh SeventyOne Thousand and Ninety Only). ix. On 30.12.2019, the CIRP costs amounting to INR.2,65,68,000/16 (Rupees Two Crores SixtyFive Lakh SixtyEight Thousand only) were paid by the Appellants. x. On 01.01.2020, the Appellants have made payment of INR 19,54,43,411/( Rupees Nineteen Crores FiftyFour Lakh FortyThree Thousand Four Hundred and Eleven) to nonrelated party operational creditors of the Corporate Debtor. xi. From 01.01.2020 to 03.01.2020, the Appellants have made Equity infusion of INR 3 crores and an Equity infusion of INR 29 Crores in Company. xii. On 23.01.2020, Appellants made payments to Ricoh Company Limited and NRG Group Limited (minority shareholder) for the transfer of shares to Appellants. xiii. On 31.01.2020, the Board of directors of the Corporate Debtor was reconstituted and the Appellants became the owners and stepped into the management and control of corporate debtor. It is no more a subsidiary of Ricoh Japan. xiv. The Appellants are shareholders of the Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive any and all claims in respect of the Resolution Plan Process. He submitted, that the phrase 'Resolution Plan Process' is defined in clause 1.0 of the Process Memorandum which means, "the process set out in this Process Memorandum for submission, evaluation and selection of Resolution Plan and activities in relation or incidental thereto." He submitted, that in view of unconditional and irrevocable acceptance of the terms of the Process Memorandum and having voluntarily and expressly waived all claims with respect to the Resolution Plan Process, it is not permissible for KIAL to challenge the decision of CoC approving the Resolution Plan of Kalpraj. He submitted, that clause 10.4 of the Process Memorandum itself provides, that RP was at liberty to receive any Resolution Plan, at any stage of the Resolution Plan Process and examine such Resolution Plan with the approval of CoC. Learned Senior Counsel submitted, that having chosen to revise its Resolution Plan and submit the same on 12.2.2019 in competition with Kalpraj, KIAL has clearly acquiesced to the consideration of the Resolution Plan of Kalpraj by RP and CoC, even after the prescribed date of 8.1.2019 and has waived all ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Central Excise, Jamshedpur & Ors. (2008) 3 SCC 70, and (iii) Chhattisgarh State Electricity Board vs. Central Electricity Regulatory Commission & Ors. (2010) 5 SCC 23 17. Dr. Singhvi further submitted, that NCLAT in two cases in Radhika Mehra vs. Vaayu Infrastructure LLP & Ors. 2020 SCC Online NCLAT 532 and Dhirendra Kumar vs. Randstand India Pvt. Ltd. & Anr. 2019 SCC Online NCLAT 444 has held, that the provisions of Section 14 of the Limitation Act cannot be made applicable to the appeal preferred under Section 67 of the I&B Code. 18. Dr. Singhvi submitted, that in any case, it cannot be said, that filing of the writ petition was a bona fide act of KIAL. He submitted, that KIAL, which was armed with a battery of legal counsel, was very well aware, that it had an alternate remedy of filing an appeal before NCLAT and therefore, was not entitled to take an umbrella of Section 14 of the Limitation Act. In this regard, he relied on the judgment of this Court in the case of Neeraj Jhanji vs. Commissioner of Customs & Central Excise (2015) 12 SCC 695. 19. Dr. Singhvi also reiterated the submissions made on behalf of Kalpraj by Shri Mukul Rohatgi, learned Senior Counsel to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able from the Corporate Debtor submitted, that the said appellant is not concerned with the dispute between the parties, which is the subject matter of consideration in the present appeals. It is further contended, that the appellants' dues are subject matter of pending arbitration proceeding between the Corporate Debtor and the appellants and is yet to attain finality, so as to liquidate the dues. It is aggrieved by the direction given in paragraph 39 by NCLT in its order dated 28.11.2019 in M.A. No.691 of 2019. The learned Senior Counsel submitted, that by the said direction it is directed, that the Resolution Applicant who stepped into the shoes of Corporate Debtor subsequent to the approval of the Resolution Plan by it, shall not be held responsible for any outstanding statutory dues and other claims for the period before commencement of CIRP. In the submission of Shri Sundaram, this direction is prejudicial to the appellant, which is the largest operational creditor entitled to recover an amount of 551 crores (approx..) from the Corporate Debtor. It is also contended, that the claim of the appellant - Fourth Dimension, though has been shown in the information memorandum by RP, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed by KIAL and one another application being M.A. No.2023 of 2019 were heard by the learned single Member and reserved for orders. He submitted, that insofar as M.A. No.691 of 2019 is concerned, the order dated 3.7.2019 would show, that the said application was directed to be kept on 23.7.2019 at 2.30 p.m. along with other applications for consideration of resolution plan on its commercial aspect. The other matters were directed to be kept for hearing on 15.7.2019. It is further submitted, that when M.A. No.691 of 2019 was listed on 23.7.2019, it was directed to be heard on 7.8.2019 at 2.30 p.m. On 7.8.2019, M.A. No. 691 of 2019 was listed, for the first time, before the Bench consisting of two Members and on that date the matter came to be adjourned to 26.8.2019. Again on 26.8.2019, the matter came up before the Division Bench and the Division Bench directed the same to be kept on 6.9.2019. On 6.9.2019, the Division Bench adjourned the matter to 17.9.2019 at 2.30 p.m. Again on 17.9.2019, the matter came up before the Division Bench which directed it to be adjourned to 19.9.2019. Finally, on 19.9.2019, M.A. No.691 of 2019 was heard on Resolution Plan and reserved for orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irector, Directorate of Enforcement & Anr. (2011) 15 SCC 30, M.P. Steel Corporation vs. Commissioner of Central Excise (2015) 7 SCC 58 and Union of India & Ors. vs. West Coast Paper Mills Ltd. & Anr. (2004) 3 SCC 458 in this regard. 29. Insofar as the arguments of the appellants with regard to acquiescence and waiver are concerned, learned Senior Counsel submitted, that, at the earliest opportunity, KIAL has objected to Kalpraj submitting its Resolution Plan. He submitted, that on KIAL coming to know, that the Resolution Plan of Kalpraj was accepted beyond 8.1.2019, KIAL objected to it vide email dated 29.1.2019 addressed to RP. He submitted, that RP had replied to its email on 30.1.2019 and requested to submit amended Resolution Plan by 3.00 p.m. on 1.2.2019. He submitted, that in the said email it is also mentioned, that "CoC reserves the rights to not consider your plan, if received after the said timeline". He submitted, that accordingly, KIAL had no other option but to submit its revised plan. 30. Learned Senior Counsel submitted, that even after submission of the revised plan, KIAL did not hear anything from RP and therefore vide email dated 10.2.2019, addressed to RP, it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n applicant who has applied within the prescribed period either under EOI or Form 'G'. It is submitted, that since Kalpraj had neither responded within the period prescribed under EOI or any of the Form 'G', it could not have been considered to be a resolution applicant. He submitted, that the entire participation of Kalpraj is illegal. He submitted, that after the plan was submitted by KIAL there was a detailed discussion with RP with regard to the plan submitted by it, wherein entire plan was disclosed, after which Kalpraj was permitted to step in. He submitted, that perusal of the Resolution Plan of Kalpraj would reveal, that it is identical with the plans submitted by KIAL, with a little variation to the extent, that in the plan of KIAL the provision made for minority shareholder is Rs. 1 crore whereas, in the plan of Kalpraj it is Rs. 50 crore. He submitted, that the entire conduct of RP as well as CoC would reveal, that they had acted in a manner that smacks of favouritism to Kalpraj and were determined to anyhow approve the plan of Kalpraj. It is submitted, that all these aspects have been rightly considered by NCLAT and therefore, the appeals deserve to be dismissed. 33. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not expressly excluded by such special or local law." Section 61 and 238A of the I&B Code "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 subsection (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 credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overned by Section 61 of the I&B Code, which is a special statute. As such, an appeal will have to be preferred within a period of thirty days from the date on which the order was passed by NCLT. However, if NCLAT is satisfied, that there was sufficient cause for not filing the appeal within a period of thirty days, it may allow an appeal to be filed within a further period of fifteen days. As such, the normal period of limitation prescribed under the I&B Code is thirty days, with a provision for allowing the filing of an appeal within a further period of fifteen days, if NCLAT is satisfied, that there was a sufficient cause for not filing the appeal within thirty days. 40. In the present case, the dates are not in dispute. The judgment of NCLT is dated 28.11.2019. As such, as per Section 61(2) of the I&B Code, the appeal was required to be filed on or prior to 28.12.2019. The appeal could have been filed within a further period of fifteen days, if NCLAT was satisfied, that there was sufficient cause for not filing the appeal within a period of thirty days. As such, the said period would come to an end on 12.1.2020. The certified copy of the impugned judgment of NCLT was made avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of subsection (1) shall apply in relation to a fresh suit instituted on permission granted by the court under Rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.-For the purposes of this section,- (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gineering Enterprises (supra) held, that the word "court" in Section 14 takes its colour from the preceding words "civil proceedings". It was therefore held, that the Limitation Act including Section 14 would not apply to appeals filed before a quasijudicial Tribunal. It was held, that since the appeal as mentioned in Section 128 of the Customs Act is not before a Court, the provisions of Section 14 would not be applicable. 47. All the authorities cited above, including Consolidated Engineering Enterprises (supra), have been elaborately discussed in the judgment of this Court in the case of M.P. Steel Corporation (supra) and therefore, we refrain from burdening the present judgment by reproducing the observations made in those judgments. 48. This Court in M.P. Steel Corporation (supra) further observed, that the judgment of this Court in the case of Commissioner of Sales Tax, U.P. vs. Madan Lal Das & Sons, Bareilly (1976) 4 SCC 464 had not considered the law laid down in Parson Tools and Plants (supra) and the other judgments nor the aforesaid decisions were pointed out to the Court and therefore, the said judgment in the case of Madan Lal Das & Sons (supra) was not an authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Limitation Act per se is not applicable, the same would not mean that the principles akin thereto would not be applied. Otherwise, the provisions of Section 5 of the Limitation Act would apply. There cannot be any doubt whatsoever that the same would be applicable to a case of this nature. 17. There cannot furthermore be any doubt whatsoever that having regard to the definition of 'suit' as contained in Section 2(l) of the Limitation Act, a revision application will not answer the said description. But, although the provisions of Section 14 of the Limitation Act per se are not applicable, in our opinion, the principles thereof would be applicable for the purpose of condonation of delay in filing an appeal or a revision application in terms of Section 5 thereof. 18. It is also now a well settled principle of law that mentioning of a wrong provision or non-mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law. While exercising its power, the court will merely consider whether it has the source to exercise such power or not. The court will not apply the beneficent provisions lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uence of bona fide mistake or (sic of) law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded.' See Shakti Tubes Ltd. v. State of Bihar [(2009) 1 SCC 786 : (2009) 1 SCC (Civ) 370] .' " 50. Thus, this Court relying on the earlier judgments in the cases of Bhudan Singh and another vs. Nabi Bux and another (1969) 2 SCC 481, J. Kumaradasan Nair and another vs. Iric Sohan and others (2009) 12 SCC 175, and Consolidated Engineering Enterprises (supra) observed, that the object of enacting the legislation is to advance public welfare. The entire legislative process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation. It has been held by this Court, that in the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe, that it represents the legislative intent. It is further observed, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. For this proposition he relied strongly on Parson Tools [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743] which has been discussed hereinabove. As has already been stated, Parson Tools [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743] was a judgment which turned on the three features mentioned in the said case. Unlike the U.P. Sales Tax Act, there is no provision in the Customs Act which enables a party to invoke suo motu the appellate power and grant relief to a person who institutes an appeal out of time in an appropriate case. Also, Section 10 of the U.P. Sales Tax Act dealt with the filing of a revision petition after a first appeal had already been rejected, and not to a case of a first appeal as provided under Section 128 of the Customs Act. Another feature, which is of direct relevance in this case, is that for revision petitions filed under the U.P. Sales Tax Act a sufficiently long period of 18 months had been given beyond which it was the policy of the legislature not to extend limitation any further. This aspect of Parson Tools [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743] has been explained in Consolidated Engg. [(2008) 7 SCC 169] in so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and with due diligence pursued, which ultimately end without a decision on the merits of the case." 53. Perusal of the aforesaid would therefore reveal, that the Court has clearly rejected the objection raised by the Revenue in M.P. Steel Corporation (supra) which was raised relying on the judgment of this Court in the case of Parson Tools and Plants (supra). This Court observed, that the time during which the applicant was prosecuting such application before the wrong court can be excluded, provided the proceeding in the wrong court was prosecuted bona fide, with due diligence. This Court distinguished the judgment in the case of Parson Tools and Plants (supra) on the ground, that the period provided for filing a revision under the U.P. Sales Tax Act was sufficiently long period of 18 months, beyond which it was the policy of the legislature not to extend limitation any further. Relying on the Consolidated Engineering Enterprises (supra), it has been observed, that there is a vital distinction between extending time and condoning delay. It was further observed, that like Section 34 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present Petitioner. The NCLT, in gross abuse of process of law and in complete disregard of true and actual circumstances has proceeded to pass the impugned order. The order impugned is passed by bench of two members, Hon'ble M.K. Sharawat (Judicial) and Hon'ble Chandra Bhan Singh (Technical) on 28th November, 2019. However, the matter was heard and reserved for orders on 03rd July, 2019, by Hon'ble Member, Shri M.K. Sharawat (Judicial). At the relevant point of time, when the matter was heard and argued, Hon'ble Chandra Bhan Singh (Technical) was not even appointed as Member of NCLT and never had occasion to hear and adjudicate upon the Application filed by the Petitioner. It is not just the Application filed by the Petitioner but 3 other Applications which are disposed off by the common order were not heard by the bench who has passed the order. This is not just contrary to law but demonstrate that the entire process of passing the orders was in an absolute mechanical manner. Annexed hereto and marked as EXHIBIT "A" is the copy of the order dated 28th November 2019 passed by NCLT on Miscellaneous Application No. 1039 of 2019." 56. It could therefore be seen, that the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consideration in the matter of granting writs" and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefore. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self imposed limitation, a rule of policy, and discretion rather than a rule of law and the court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted." 60. This Court further laid down two well recognized exceptions to the doctrine with regard to the exhaustion of statutory remedies, which reads thus: "There are at least two wellrecognised exceptions to .the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is wellsettled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the High Court under Art. 226 for issuing appropriate writs for quashing them on the ground that 68 they are incompetent, without his being obliged to wait until th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, it was invoking the jurisdiction of the High Court since the question involved was also with regard to the manner in which the jurisdiction was exercised by NCLT. It could thus be seen, that KIAL was bona fide prosecuting the proceedings before the High Court in good faith. Perusal of the dates referred to herein above would also reveal, that KIAL was prosecuting the proceedings before the High Court with due diligence. Even before the availability of the certified copy, it had knocked the doors of the High Court. The matter before the High Court was hotly contested and ultimately, the petition was dismissed by an elaborate judgment relegating KIAL to the alternate remedy available to it in law. As such, the conditions which enable a party to invoke the provisions of Section 14 of the Limitation Act are very much available to KIAL. If the period during which KIAL was bona fide prosecuting the writ petition before the High Court and that too with due diligence, is excluded applying the principles underlying Section 14 of the Limitation Act, the appeals filed before NCLAT would be very much within the limitation. We find, that KIAL would be entitled to exclusion of the period duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents preferred an application to set aside the said award as provided by Section 34 of the Arbitration Act in the Court of the Civil Judge (Senior Division), Ramanagaram, Bangalore Rural District, Bangalore. However, it was realised by the respondents, that an application for setting aside the award should have been filed before the Principal District Judge, Bangalore District (Rural). As such, an application was preferred by the respondents in the Court of the Civil Judge (Senior Division), Ramanagaram with a request to transfer the application made for setting aside the award to the Court of the Principal District Judge (Rural), Bangalore. 68. The Civil Judge (Senior Division), Ramanagaram passed an order directing return of the suit records for presentation before the proper court. The respondents therefore collected the papers from the Court of the Civil Judge (Senior Division), Ramanagaram and presented the same in the Court of the Principal District Judge, Bangalore (Rural). The District Court framed a preliminary issue, as to whether the suit was barred by the limitation under Section 34(3) of the Arbitration Act. The District Judge held, the application for setting aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 5 is discretionary whereas under Section 14, exclusion of time is mandatory, if the requisite conditions are satisfied. Section 5 is broader in its sweep than Section 14 in the sense that a number of widely different reasons can be advanced and established to show that there was sufficient cause in not filing the appeal or the application within time. The ingredients in respect of Sections 5 and 14 are different. The effect of Section 14 is that in order to ascertain what is the date of expiration of the "prescribed period", the days excluded from operating by way of limitation, have to be added to what is primarily the period of limitation prescribed. Having regard to all these principles, it is difficult to hold that the decision in Popular Construction Co. [(2001) 8 SCC 470] rules that the provisions of Section 14 of the Limitation Act would not apply to an application challenging an award under Section 34 of the Act." 70. This Court clearly held, that the decision in the case of the Popular Construction Co. (supra) cannot be construed to mean as a ruling, that provisions of Section 14 of the Limitation Act are also not applicable to an application challenging an award un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in Popular Construction Co. (supra) did not consider the applicability of Section 14 of the Limitation Act to an application under Section 34 of the Arbitration Act. 73. As such, in view of the judgment of three Judges Bench of this Court in the case of Consolidated Engineering Enterprises (supra), the reliance placed by the appellants on the judgment of this Court in Popular Construction Co. (supra) would not be of any assistance. 74. Reliance is also placed on the judgment of this Court in the case of Singh Enterprises (supra) wherein, the question raised was with regard to applicability of the provisions of Section 5 of the Limitation Act to an appeal filed under Section 35 of the Central Excise Act, 1944. Again, the said judgment deals with applicability of Section 5 and not of Section 14 of the Limitation Act and therefore would not support the case of the appellants. 75. Similarly, reliance placed by the learned counsel for the appellants on the judgment of this Court in the case of Commissioner of Customs and Central Excise vs. Hongo India Private Limited and another (2009) 5 SCC 791, would also not help the appellants inasmuch as, the question, that fell for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l)] . The Allahabad High Court has rightly dismissed the petitioner's ap82 plication of condonation of delay and consequently the appeal as time barred." 79. It is thus clear, that this Court found, that the petitioner therein had adopted tactics of taking chances by approaching High Court of Delhi, which had no territorial jurisdiction. As such, it was found, that neither the writ petition nor the appeal before the Delhi High Court could be construed to be a bona fide. It was further noticed, that there was an inordinate delay of 697 days. It is thus apparent, that the petitioner therein had not satisfied the necessary conditions for applicability of Section 14. 80. In the present case, as already discussed herein above, the petitioner was bona fide prosecuting his remedy before the High Court and that too with due diligence. As such, the said judgment also would be of no avail to the case of the appellants. 81. The judgment of this Court in the case of Ketan V. Parekh (supra) is relied upon by both the parties. The question, that arose for consideration in the said case was with regard to applicability of Section 14 of the Limitation Act to an Appeal from Order of an Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court i.e. the Bombay High Court which had the exclusive jurisdiction to entertain an appeal under Section 35 of the Act. 33. It is not possible to believe that as on 7-11-2007, the appellants and their advocates were not aware of the judgment of this Court in Ambica Industries v. CCE [(2007) 6 SCC 769] whereby dismissal of the writ petition by the Delhi High Court on the ground of lack of territorial jurisdiction was confirmed and it was observed that the parties cannot be allowed to indulge in forum shopping. It has not at all surprised us that after having made a prayer that the writ petitions filed by them be treated as appeals under Section 35, two of the appellants filed applications for recall of that order. No doubt, the learned Single Judge accepted their prayer and the Division Bench confirmed the order of the learned Single Judge but the manner in which the appellants prosecuted the writ petitions before the Delhi High Court leaves no room for doubt that they had done so with the sole object of delaying compliance with the direction given by the Appellate Tribunal and by no stretch of imagination it can be said that they were bona fide prosecuting remedy bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternate remedy. 84. This Court recently in the judgment of Embassy Property Developments Pvt. Ltd. vs. State of Karnataka and Others 2019 SCC Online 1542 had an occasion to consider a similar issue. We find it apposite to refer to the question framed by this Court, which reads thus: "i) Whether the High Court ought to interfere, under Article 226/227 of the Constitution, with an order passed by the National Company Law Tribunal in a proceeding under the Insolvency and Bankruptcy Code, 2016, ignoring the availability of a statutory remedy of appeal to the National Company Law Appellate Tribunal and if so, under what circumstances." 85. It will also be apposite to reproduce the answer given by this Court. "47. Therefore, in fine, our answer to the first question would be that NCLT did not have jurisdiction to entertain an application against the Government of Karnataka for a direction to execute Supplemental Lease Deeds for the extension of the mining lease. Since NCLT chose to exercise a jurisdiction not vested in it in law, the High Court of Karnataka was justified in entertaining the writ petition, on the basis that NCLT was coram non judice." We therefore have no hesitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld thus be seen, that the main thrust of the arguments advanced on behalf of the appellants with regard to waiver and acquiescence is on two grounds, viz., (i) clause 10.4 of the Process Memorandum read with paragraph 5(b) of the covering letter for submission of resolution plan by KIAL, and (ii) participation of KIAL in the process after Kalpraj was permitted to participate in the process. 90. We may refer to clause 10.4 of the Process Memorandum and paragraph 5(b) of the covering letter for submission of resolution plan by KIAL, which read thus: Clause 10.4 of the Process Memorandum "if any Resolution Plan is received by the Resolution professional from any eligible Applicant(s) at any stage of the Resolution Plan Process, the Resolution professional shall be free to examine such Resolution Plan with the approval of the Committee of Creditors and the Applicant(s) will not have any right to object to submission or consideration of such plan." Paragraph 5(b) of the covering letter for submission of resolution plan by KIAL . "5. We further represent and confirm as follows: (a) ..... (b) Acceptance We hereby unconditionally and irrevocably agree and accept the ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laws". The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgaining power and the applicants have no other choice than to sign on the documents prescribed in the format. Paragraph 5(b) of the covering letter format, requires a party to undertake, that it will accept all the decisions made by CoC, RP and/or the Adjudicating Authority and that the decisions taken will be binding on it. It also requires the applicant, to sign on the document thereby, providing expressly waiving any and all claims with respect to the Resolution Plan Process. In turn, it provides for a party to agree to a stipulation, that even if RP or CoC acts in any manner, which is not permissible in law, still the resolution applicant would be bound by such a decision and shall waive any or all its claims in respect of the Resolution Plan Process. 96. The said principle of law has been subsequently followed in various judgments of this Court including the one in the case of Assistant General Manager and others vs. Radhey Shyam Pandey (2020) 6 SCC 438. 97. No doubt, that this Court in Central Inland Water Transport Corporation Limited (supra) has observed, that the principle laid down therein may not apply where both parties are businessmen and the contract is a commercia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom conduct. ... A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision, may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted on it is sufficient consideration. ... It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration.' (See Halsbury's Laws of England, 4th Edn., Para 1471.)" 103. In Halsbury's Laws of England, Vol. 16(2), 4th Edn., Para 907, it is stated: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of his right to take the objection in question. As Sir John Romilly, M.R., has observed in Vyvyan v. Vyvyan [(1861) 30 Beav 65, 74 : 54 ER 813, 817] "waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and, that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim". 106. It has been held, that a waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred, only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. The waiver or acquiescence, like election, presupposes, that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another. 107. As such, for applying the principle of waiver, it will have to be established, that though a party was aware about the relevant facts and the right to take an objection, he has neglected to take such an objection. 108. In the case of Krishna Bahadur vs. Purna Theatre and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration. 10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct." 110. This Court has thus held, that the principle of waiver although is akin to the principle of estoppel; estoppel is not a cause of action and is a rule of evidence, whereas waiver is contractual and may constitute a cause of action. It is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. It is further held, that whenever waiver is pleaded, it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. 111. This Court in the case of State of Punjab vs. Davinder Pal Singh Bhullar and others (2011) 14 SCC 770 had an occasion to consider an issue, as to when an issue of bias was not raised by the party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0] . Thus, the Court has to examine the facts and circumstances in an individual case. 41. Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. (Vide Dawsons Bank Ltd. v. Nippon Menkwa Kabushiki Kaisha [(193435) 62 IA 100 : AIR 1935 PC 79] , Basheshar Nath v. CIT [AIR 1959 SC 149] , Mademsetty Satyanarayana v. G. Yelloji Rao [AIR 1965 SC 1405] , Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh [AIR 1968 SC 933] , Jaswantsingh Mathurasingh v. Ahmedabad Municipal Corpn. [1992 Supp (1) SCC 5] , Sikkim Subba Associates v. State of Sikkim [(2001) 5 SCC 629 : AIR 2001 SC 2062] and Krishna Bahadur v. Purna Theatre [(2004) 8 SCC 229 : 2004 SCC (L&S) 1086 : AIR 2004 SC 4282] .) 42. This Court in Municipal Corpn. of Greater Bombay v. Dr Hakimwadi Tenants' Assn. [1988 Supp SCC 55 : AIR 1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wledge about the same, he intentionally abandons them. 113. In the case of Galada power and Telecommunication limited vs. United India Insurance Company Limited and another (2016) 14 SCC 161, this Court had an occasion to consider the question, as to whether the insurer has waived its right on the basis of claim hit by clause relating to duration. 114. On the facts, holding, that the case was a case of waiver, this Court observed thus: "18. In the instant case, the insurer was in custody of the policy. It had prescribed the clause relating to duration. It was very much aware about the stipulation made in Clauses 5(3) to 5(5), but despite the stipulations therein, it appointed a surveyor. Additionally, as has been stated earlier, in the letter of repudiation, it only stated that the claim lodged by the insured was not falling under the purview of transit loss. Thus, by positive action, the insurer has waived its right to advance the plea that the claim was not entertainable because conditions enumerated in duration clause were not satisfied. In our considered opinion, the National Commission could not have placed reliance on the said terms to come to the conclusion that there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the submission of the plan by Kalpraj, KIAL objected to the acceptance of its plan after 8.1.2019, when no extension of time for the same was notified. It is specifically stated, that the said severely jeopardized its position and was against the spirit of the Code, especially when KIAL's resolution plan was opened immediately and discussed at length with various stakeholders. KIAL has therefore requested for sharing the requisite information providing for extension of time for bid submission. It is further stated, that in the event no such notification was issued, all plans submitted after 8.1.2019 should be held to be invalid. 119. After the said email was addressed by KIAL to RP, it received an email from RP on 30.1.2019. It is stated in the said email dated 30.1.2019, that subsequent to the resolution plan submitted on 8.1.2019, CoC's representative and RP had a detailed discussion with its team on the changes required to be made in the resolution plan. Vide the said email dated 30.1.2019, KIAL was requested to submit the amended resolution plan by 3 p.m. on 1.2.2019. On 1.2.2019, left with no choice, KIAL submitted its revised resolution plan. 120. On 10.2.2019, KIAL se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Kalpraj. KIAL filed its M.A. No. 1039 of 2019 on 14.3.2019 before the Adjudicating Authority objecting to the approval of resolution plan of Kalpraj. 125. It could thus be clearly seen, that KIAL had raised its objection immediately after the Kalpraj submitted its resolution plan. Not only that, but, it had also reiterated its objection to the participation of Kalpraj. Insofar as, submission of amended plans is concerned, it had no other option than to submit its revised plan. This is specifically so in view of clause 11.2, which reads thus: "11.2 No change or supplemental information to the Resolution Plan shall be accepted after the Resolution Plan Due Date, unless agreed otherwise by the Resolution Professional (in consultation with the Committee of Creditors). The Resolution Professional or the CoC may, at their sole discretion, request for additional information/document and/or seek clarifications from a Resolution Applicant after the Resolution Plan Due Date. Delay in submission of additional information and/or documents sought by the Resolution Professional, the CoC or the Process Manager shall make the Resolution Plan liable for rejection." 126. It is thus clear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are two distinct legal persons and the holding company does not own the assets of the subsidiary and, in law, the management of the business of the subsidiary also vests in its Board of Directors. In Bacha F. Guzdar v. CIT [AIR 1955 SC 74] , this Court held that shareholders' only right is to get dividend if and when the company declares it, to participate in the liquidation proceeds and to vote at the shareholders' meeting. Refer also to Carew and Co. Ltd. v. Union of India [(1975) 2 SCC 791] and Carrasco Investments Ltd. v. Directorate of Enforcement [(1994) 79 Comp Cas 631 (Del)] ." 131. In view of the aforesaid observation, the objection in this regard deserves to be rejected. 132. Taking into consideration the fact, that KIAL had objected to participation of any other applicant submitting plan after the due date as per the last Form 'G' and also reiterated its objection, we are of the considered view, that it cannot be held, that having participated by submitting the revised plans, KIAL is estopped from challenging the process on the ground of acquiescence and waiver. Merely because, the revised plans are not submitted with the words "without prejudice", in our vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h creditors in accordance with subsection (1) of Section 53 in the event of a liquidation of the corporate debtor. Explanation 1.-For the removal of doubts, it is hereby clarified that a distribution in accordance with the provisions of this clause shall be fair and equitable to such creditors. Explanation 2.-For the purposes of this clause, it is hereby declared that on and from the date of commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2019, the provisions of this clause shall also apply to the corporate insolvency resolution process of a corporate debtor- (i) where a resolution plan has not been approved or rejected by the Adjudicating Authority; (ii) where an appeal has been preferred under Section 61 or Section 62 or such an appeal is not time barred under any provision of law for the time being in force; or (iii) where a legal proceeding has been initiated in any court against the decision of the Adjudicating Authority in respect of a resolution plan;] (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 subsection (4) of Section 30 meets the requirements as referred to in subsection (2) of Section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force, such as authorities to whom statutory dues are owed, guarantors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The key economic question in the bankruptcy process *** The Committee believes that there is only one correct forum for evaluating such possibilities, and making a decision: a creditors committee, where all financial creditors have votes in proportion to the magnitude of debt that they hold. In the past, laws in India have brought arms of the Government (legislature, executive or judiciary) into this question. This has been strictly avoided by the Committee. The appropriate disposition of a defaulting firm is a business decision, and only the creditors should make it. *** 5. Process for legal entities * * * Business decisions by a creditor committee All decisions on matters of business will be taken by a committee of the financial creditors. This includes evaluating proposals to keep the entity as a going concern, including decisions about the sale of business or units, retiring or restructuring debt. The debtor will be a nonvoting member on the creditors committee, and will be invited to all meetings. The voting of the creditors committee will be by majority, where the majority requires more than 75 per cent of the vote by weight. *** No prescriptions on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner and the type of possible solutions are specific to the time and environment in which the insolvency becomes visible, it is expected to evolve over time, and with the development of the market. The Code will be open to all forms of solutions for keeping the entity going without prejudice, within the rest of the constraints of the IRP. Therefore, how the insolvency is to be resolved will not be prescribed in the Code. There will be no restriction in the Code on possible ways in which the business model of the entity, or its financial model, or both, can be changed so as to keep the entity as a going concern. The Code will not state that the entity is to be revived, or the debt is to be restructured, or the entity is to be liquidated. This decision will come from the deliberations of the creditors committee in response to the solutions proposed by the market." 138. It is thus clear, that the Committee was of the view, that for deciding key economic question in the bankruptcy process, the only one correct forum for evaluating such possibilities, and making a decision was, a creditors committee, wherein all financial creditors have votes in proportion to the magnitude of debt th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied in Section 30(4) of the I&B Code is mandatory. Further, is it open to the adjudicating authority/appellate au138 thority to reckon any other factor other than specified in Sections 30(2) or 61(3) of the I&B Code as the case may be which, according to the resolution applicant and the stakeholders supporting the resolution plan, may be relevant?" (emphasis supplied) 141. After considering the judgment of this Court in the case of Arcelormittal India Private Limited vs. Satish Kumar Gupta and others (2019) 2 SCC 1 and the relevant provisions of the I&B Code, this court further observed in K. Sashidhar (supra) thus: "52. As aforesaid, upon receipt of a "rejected" resolution plan the adjudicating authority (NCLT) is not expected to do anything more; but is obligated to initiate liquidation process under Section 33(1) of the I&B Code. The legislature has not endowed the adjudicating authority (NCLT) with the jurisdiction or authority to analyse or evaluate the commercial decision of CoC much less to enquire into the justness of the rejection of the resolution plan by the dissenting financial creditors. From the legislative history and the background in which the I&B Code has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lective business decision. It has been held, that the legislature has consciously not provided any ground to challenge the "commercial wisdom" of the individual financial creditors or their collective decision before the Adjudicating Authority and that the decision of CoC's 'commercial wisdom' is made nonjusticiable. 143. This Court in Committee of Creditors of Essar Steel India Limited through Authorised Signatory (supra) after referring to the judgment of this Court in the case of K. Sashidhar (supra) observed thus: "64. Thus, what is left to the majority decision of the Committee of Creditors is the "feasibility and viability" of a resolution plan, which obviously takes into account all aspects of the plan, including the manner of distribution of funds among the various classes of creditors. As an example, take the case of a resolution plan which does not provide for payment of electricity dues. It is certainly open to the Committee of Creditors to suggest a modification to the prospective resolution applicant to the effect that such dues ought to be paid in full, so that the carrying on of the business of the corporate debtor does not become impossible for want of a most bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent of voting share of financial creditors. Even in that enquiry, the grounds on which the adjudicating authority can reject the resolution plan is in reference to matters specified in Section 30(2), when the resolution plan does not conform to the stated requirements. Reverting to Section 30(2), the enquiry to be done is in respect of whether the resolution plan provides: (i) the payment of insolvency resolution process costs in a specified manner in priority to the repayment of other debts of the corporate debtor, (ii) the repayment of the debts of operational creditors in prescribed manner, (iii) the management of the affairs of the corporate debtor, (iv) the implementation and supervision of the resolution plan, (v) does not contravene any of the provisions of the law for the time being in force, (vi) conforms to such other requirements as may be specified by the Board. The Board referred to is established under Section 188 of the I&B Code. The powers and functions of the Board have been delineated in Section 196 of the I&B Code. None of the specified functions of the Board, directly or indirectly, pertain to regulating the manner in which the financial creditors ought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the corporate insolvency resolution period. Third, the debts owed to operational creditors have not been provided for in the resolution plan in the prescribed manner. Fourth, the insolvency resolution plan costs have not been provided for repayment in priority to all other debts. Fifth, the resolution plan does not comply with any other criteria specified by the Board. Significantly, the matters or grounds-be it under Section 30(2) or under Section 61(3) of the I&B Code -are regarding testing the validity of the "approved" resolution plan by CoC; and not for approving the resolution plan which has been disapproved or deemed to have been rejected by CoC in exercise of its business decision." [emphasis supplied] 149. It will therefore be clear, that this Court, in unequivocal terms, held, that the appeal is a creature of statute and that the statute has not invested jurisdiction and authority either with NCLT or NCLAT, to review the commercial decision exercised by CoC of approving the resolution plan or rejecting the same. 150. The position is clarified by the following observations in paragraph 59 of the judgment in the case of K. Sashidhar (supra), which reads thus: "5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the adjudicating authority has to be satisfied that the requirement of subsection (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an adjudicating authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the adjudicating authority in limited judicial review has been laid down in Essar Steel [Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta, (2020) 8 SCC 531] , the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the appellate authority ought to have interfered with the order of the adjudicating authority in directing the successful resolution applicant to enhance their fund inflow upfront." 154. This Court observed, that the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plan of Kalpraj, which was duly approved by NCLT. It is the case of Kalpraj, RP, CoC and Deutsche Bank, that during the said period, various steps have been taken by Kalpraj by spending a huge amount for implementation of the plan. No doubt, this is sought to be disputed by KIAL. However, we do not find it necessary to go into that aspect of the matter in light of our conclusion, that NCLAT acted in excess of jurisdiction in interfering with the conscious commercial decision of CoC. 158. It is also pointed out, that in pursuance of the order dated 5.8.2020 passed by NCLAT, CoC has approved the resolution plan of KIAL on 13.8.2020. However, since we have already held, that the decision of NCLAT dated 5.8.2020 does not stand the scrutiny of law, it must follow, that the subsequent approval of the resolution plan of KIAL by CoC becomes nonest in law. For, it was only to abide by the directions of NCLAT. We are of the view that nothing would turn on it. The decision of CoC dated 13/14.2.2019 is a decision, which has been taken in exercise of its 'commercial wisdom'. As such, we hold, that the decision taken by CoC dated 13/14.2.2019, which is taken in accordance with its 'commercial w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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