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TMI Blog2021 (5) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... he question whether the provident fund, pension fund, and gratuity fund come within the meaning of assets of 'corporate debtor' for distribution under Section 53 of the Insolvency and Bankruptcy Code, 2016, came for consideration and the Hon'ble NCLAT held that the appellant could not derive the meaning of 'workmen's dues' as assigned to it in section 326 of the Companies Act, 2013, which deals with the 'overriding preferential payments.' There is a difference between the distribution of assets and' priority of workmen's dues, as mentioned under Sec. 53(1)(b) of the I B Code and Sec. 326(1) (a) of the Companies At, 2013. The appellate Tribunal declined to interfere with the order of the NCLT holding that the provident funds do not come within the meaning of 'liquidation estate' for distribution of assets under Sec. 53 of the I B Code - the prayer so made by the Applicant is rejected as not maintainable. - I.A. No. 329 of 2020 in I.A. No. 230 of 2020 in I.A. No. 224 of 2018 in CP(IB) No. 88 of 2017 - - - Dated:- 24-3-2021 - Manorama Kumari, Member (J) And Chockalingam Thirunavukkarasu, Member (T) For the Appellant : Mihir T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Insolvency Resolution Process (hereinafter referred as CIRP ) was extended by this adjudicating authority for further 90 days. 2.3 That on 06.06.2018 and 07.06.2018 the Resolution Plan submitted by the Applicant was put to vote before the CoC which was approved by the CoC along with the addendum. Accordingly, on 11.06.2018, RP filed an application i.e. IA 224 of 2018, for approval of the Resolution Plan by this Adjudicating Authority. The Resolution Plan was approved vide order dated 27.02.2019 by this Adjudicating Authority and on approval of the plan. Applicant no 1 was required to allot shares of ₹ 200 crores to the Secured Financial Creditor. Further, the Resolution Applicant complied with the Resolution Plan. However, it is alleged that the Applicant have not been given possession of the office premises of the Rainbow Papers Limited and the same continues to be under the occupation of the promoters of Rainbow Papers Limited. It is further alleged that till date, Applicant has not been given the data, books of accounts and other records of the corporate debtor. Also, neither the RP nor the CoC has shared the forensic audit report with the Applicants, so as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of shares made by the Applicant pursuant to the Resolution Plan and for reversal of all things done under or pursuant to the Resolution Plan and for restoration of status quo ante as prevailing prior to the approval of the Resolution Plan. Therefore, the Applicants have also filed an application i.e. IA 230 of 2020 before this Adjudicating Authority seeking the recall of order dated 27.02.2019 along with other reliefs as stated above. 2.7 The said IA 230 of 2020 is pending before this Adjudicating Authority and an application i.e. IA 229 of 2020 came to be filed by Indian overseas bank, lead bank of the consortium, inter alia praying for an order for direction to the resolution Applicants to take steps under the plan or in the alternative praying for recommencement of CIRP and re-doing the CIRP process for the corporate debtor. Moreover, another application i.e. IA 231 of 2020 was also filed in this matter by the workers of the Corporate Debtor. Thus, there are three IAs pending before this adjudicating authority in toto. 2.8 The Applicant further submitted that the Applicant has recently learned that the Regional Provident Fund Commissioner is in the process of taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Adjudicating Authority vide its order 27.02.2019. It is submitted by the Respondent that the present application is not maintainable in the light of the judgment passed by the Hon'ble NCLAT in Kundan Care Product Limited vs. Amit Gupta [Company Appeal (AT) (Insolvency) no. 653 of 2020] wherein it is held as under: i. there is no provision in the I B Code entitling the successful resolution Applicant to seek withdrawal after its Resolution Plan stands approved by the CoC with requisite majority ii. the success Resolution Plan incorporates contractual terms binding the resolution Applicant but it is not the contract of the personal service which may be legally enforceable iii. the resolution Applicant in such case is estopped from wriggling out of the liabilities incurred under the approved Resolution Plan and the principle of estoppel by conduct would apply to it iv. the value of the assets of the Corporate Debtor is bound to have depleted because of passage of time consumed in corporate insolvency resolution process and in the event of successful resolution Applicant being permitted to work out with impunity, the Corporate Debtor's depleting value wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, it reaches to the finality. 9. Moreover, it is the obligation on the part of the Applicant to make the payment in view of the notice issued by Respondent No. 3 to the tune of ₹ 2,69,98,120/- as the amount is the hard earned amount of the employees/workers and is deducted from their salary. Furthermore, Hon'ble NCLAT in Kundan Care Product Limited vs. Amit Gupta [Company Appeal (AT) (Insolvency) 953 of 2020] has observed that: i. there is no provision in the I B Code entitling the successful resolution Applicant to seek withdrawal after its Resolution Plan stands approved by the CoC with requisite majority ii. the success Resolution Plan incorporates contractual terms binding the resolution Applicant but it is not the contract of the personal service which may be legally enforceable iii. the resolution Applicant in such case is estopped from wriggling out of the liabilities incurred under the approved Resolution Plan and the principle of estoppel by conduct would apply to it iv. the value of the assets of the Corporate Debtor is bound to have depleted because of passage of time consumed in corporate insolvency resolution process and in the even ..... X X X X Extracts X X X X X X X X Extracts X X X X
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