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TMI Blog2021 (6) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... e Adjudicating Authority i.e. to rectify any mistake apparent from the record only. Error/mistake in the order passed by the Adjudicating Authority, by which the Resolution Plan was approved - HELD THAT:- Admittedly, the applicant has not raised any objection on the Resolution Plan. Therefore, they are not the necessary party in this proceeding. It is seen from the record that the applicant had filed the claim after the approval of the Resolution Plan by the CoC but before approval of the Resolution Plan by the Adjudicating Authority - From the perusal of the order passed by the Adjudicating Authority, we notice that all the facts and provisions of law, which are required to be considered while approving the Resolution Plan, have been taken note of and well discussed by this Adjudicating Authority before approving the plan. We do not see any mistake apparent from the record, which requires any rectification. Hence, Section 420 of the Companies Act, 2013 is not applicable in the case in hand - Thus, neither there is any justification nor there is any specific provision for review of an order passed by the Adjudicating Authority. Once the Resolution Plan has been approved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) Quash and set aside the all actions/decisions/plan taken by the IRP/Resolution Professional and Committee of Creditors against the applicant/GNIDA and allow the applicant to participate in all the proceedings as Financial Creditor. d) In exercise of the powers under Section 98, 204 and 208 and all other applicable provisions of the IBC, 2016, direct replacement of the present Resolution Professional Mr. Dinesh Chandra Agarwal and direct further action against the said Resolution Professional for his misconduct and deliberately not informing and allowing to participate in COC and allegedly and deliberately not considering the status of the applicant GNIDA as financial creditor, without adjudication, reasons and justification, resulting in financial loss to a Govt. Authority GNIDA and dealing with the owner of the land to its detriment and resulting in unlawful financial gain to the corporate debtor and other creditor at the expenses of the applicant. 2. Another Interlocutory application bearing No. IA/727/2021 is also filed on behalf of Greater Noida Industrial Development Authority ( GNIDA ) under section 60(5) and other relevant provisions of the Insolvency Bankruptc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred payment, which is to be made in instalments and is interest bearing. And the Corporate Debtor has been developing a sport city according to the building plan approved by the applicant over the said plot. iii. Further, the applicant itself is the Financial Creditor of the Corporate Debtor and has a higher charge/preference in relation to any other Financial Creditor. That neither the subleased plot nor any plot owned or standing in the name of Corporate Debtor can be the subject matter of any resolution, where applicant is not acknowledged as the Financial Creditor and a member of the Committee of Creditors. No Resolution Plan can be proposed or alone finalized without the consent of the applicant as per rule and taking into account that being the owner of the land, no orders can be passed to its detriment since the premium payable towards the lease is outstanding and is interest bearing. iv. Further, there is a breach and violation of the terms and conditions of the registered Lease Deed by the Corporate Debtor, being the Lessee. Thus, the applicant has also all the legal remedies to protect its legal rights, title and interest qua the subject plot. v. Furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x. Further, in response to the Recovery Certificate, the then District Magistrate, District-Gautam Budh Nagar, through its letter no. 565/CRRA/2019-20 dated 21.11.2019 informed that the Tribunal vide its orders dated 18.07.2018 has appointed IRP in M/s. Maple Realcon Pvt. Ltd. and further informed that the property of Corporate Debtor - Maple Realcon Pvt. Ltd. has been taken over by the IRP and therefore, the demand letter/recovery certificate could not be executed and the same was returned to the applicant-Authority in the original order. xi. Further, the applicant - Authority/GNIDA had submitted the proof of claim of ₹ 17,31,22,891/- being the Financial Creditor to Mr. Dinesh Kumar Agarwal, Interim Resolution Professional (IRP) on 06.02.2020. But the said IRP neither adjudicated and considered the claim of the applicant as Financial Creditor nor made any communication to the applicant to participate in the meeting of the CoC. He also did not inform that M/S. Maple Realcon Pvt. Ltd. is under CIRP. xii. Further, the IRP Mr. Dinesh Kumar Agarwal deliberately and falsely did not disclose to this Adjudicating Authority that the applicant/Authority GNIDA has already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viding a copy of the CA-1596/ND/2019 in (IB)-496(ND)/2018. iii. That the Hon'ble Allahabad High Court in the case of Central Bureau of Investigation Vs. State of UP another 2016 (92) ACC 613 has held that a distinction has to be made between review and recall and an order passed, without affording any opportunity to a party to be heard, can be recalled, even in criminal proceedings, as the same does not amount to review. The same has also been held by the Hon'ble Supreme Court in the case of New India Insurance Company Ltd. Vs. Krishna Kumar Pandey in Crl. Appeal No. 1852 of 2019. That the Hon'ble Supreme Court in a catena of judgments has held that no individual should be condemned unheard and full opportunity should be granted to every party to defend himself by taking legal assistance and putting forth his legal and factual submissions in the matter before the Hon'ble Court. In the present case, the applicant-Authority has been deprived of such an opportunity. iv. That it shall be in the interest of justice if the order dated 20.02.2020 is recalled and the applicant is given an opportunity to defend the case. 6. The Respondent/Resolution Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant was well aware of the initiation of CIRP on the corporate debtor. From a bare reading of the Para No. 13 on Page 10 of the application, it is apparently clear that the Applicant was aware of the initiation of CIRP before the Approval of Resolution plan. vi. Further, the Applicant herein has also concealed the letter dated 01.11.2019 addressed to the CEO Greater Noida Authority, Gautam Budh Nagar with subject line Pendency of the Corporate Insolvency Resolution Process in the matter of Bindal Merchandise Vs. Maple Realcon Pvt. Ltd., IB-496(ND)/2018; Admission order dated 18-07-2018 . The Ex-Director of the Corporate Debtor, Maple Realcon Pvt. Ltd. vide abovesaid letter has informed GNIDA that since the CIRP is pending against the Corporate Debtor, all Civil Proceeding/Recovery/Proceeding at the behest of GNIDA are required to be kept in abeyance till the pendency of CIRP. vii. Further, the prayers sought by the applicant in the instant application cannot be granted, as this Adjudicating Authority is not competent to exercise the jurisdiction as conferred under section 61 of the Code, only NCLAT has the jurisdiction to address the grievance of Applicant. vii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the order passed by the Hon'ble NCLAT in Company Appeal (Insolvency) (AT) No. 775/2019 in the matter of Sunil Kumar Aggarwal Vs. New Okhla Industrial Development Authority Ors., the same may be recalled or set aside. 11. He further submitted that in view of that decision of the Hon'ble NCLAT, the applicant being the financial creditor has right to participate in the meeting of the CoC and in their absence, any decision taken by the Adjudicating Authority is liable to be set aside. 12. He also placed reliance upon the decisions of Hon'ble Allahabad High and Hon'ble Supreme Court referred Supra. 13. He further submitted that this Adjudicating Authority is not empowered to proceed ex-parte. 14. On the other hand, Ld. Counsel for the RP raised all the facts mentioned in his reply and further submitted that the applicant has not come with clean hands. Rather, they have concealed the letter dated 01.11.2019 addressed to CEO, Greater Noida Authority Gautam Budh Nagar with subject line Pendency of Corporate Insolvency Resolution Process in the matter of Bindal Merchandise Vs. Maple Realcon Pvt. Ltd. in IB No. 496/ND/2018; admission order dated 18.07.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration is that once the Resolution Plan is approved by the CoC as well as by the Adjudicating Authority then, in such a case, Whether the law permits to give a direction to the RP to consider the claim filed by any of the creditors either financial or operational? 23. At first, we consider the power of the Adjudicating Authority. Although there is no provision for review under the IBC but Section 420 of the Companies Act, 2013 deals with a provision to rectify any mistake apparent from the record and the said provision is quoted below:- 420. (1) The Tribunal may, after giving the parties to any proceeding before it, a reasonable opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Tribunal may, at any time within two years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it, and shall make such amendment, if the mistake is brought to its notice by the parties: Provided that no such amendment shall be made in respect of any order against which an appeal has been preferred under this Act. (3) The Tribunal shall send a copy of every order passed under this section to al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well as the Adjudicating Authority, then in such a case, whether the law permits the Adjudicating Authority to give a direction to the RP to consider the claim filed by any of the creditors either financial or operational. 30. At this juncture, we refer to the decision of Hon'ble Supreme Court, on which RP has placed reliance, in the matter of Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta Ors. Supreme Court (Supra) in which the Hon'ble Supreme Court held that:- A successful resolution applicant cannot suddenly be faced with undecided claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who successfully take over the business of the corporate debtor and it was further held that All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. 31. At this juncture, we also refer to the Order dated 24.3.2021 passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the extended time as permitted by Regulation 12. In Essar Steel (supra), while dealing with the topic Extinguishment of Personal Guarantees and Undecided Claims, this Court disapproved that part of the NCLT judgment which held that other claims, that might exist apart from those decided on merits by the resolution professional and by the Adjudicating Authority/Appellate Tribunal, could be decided in an appropriate forum in terms of Section 60(6) of the Code. This Court specifically held that a resolution applicant cannot be made to suddenly encounter undecided claims after resolution plan submitted by him has been accepted; and in the scheme of the Code, all claims must be submitted to, and decided by, the resolution professional so that the resolution applicant could proceed on a fresh plate. This Court, inter alia, held as under-: 107. For the same reason, the impugned NCLAT judgment in holding that claims that may exist apart from those decided on merits by the resolution professional and by the Adjudicating Authority/Appellate Tribunal can now be decided by an appropriate forum in terms of Section 60(6) of the Code, also militates against the rationale of Section 31 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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