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TMI Blog2021 (7) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... it against the Respondent in the year 2014. Petition dismissed. - C. P. (IB) No. 08/GB/2021 - - - Dated:- 22-6-2021 - Hari Venkata Subba Rao , Member ( J ) And Prasanta Kumar Mohanty , Member ( T ) ORDER Prasanta Kumar Mohanty , Member ( T ) 1. The Applicant has filed this Petition under Section 9 of the IBC, 2016 read with Rule 6 of the Insolvency Bankruptcy (Application to Adjudicating Authority), 2016 for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor (CD) M/s. Kitply Industries Ltd. 2. It is stated by the Applicant that the appended application in Form No. 5 with necessary attachments is preferred by the OC under Section 9 of the Insolvency and Bankruptcy Code, 2016. The OC is the supplier of plywood materials to the CD, Kitply Industries Ltd. on whose account huge amounts are entitled for realization as confirmed as per credit information letter issued by the CD. When it was not discharged, this OC as early in the year 2014 filed civil suit for recovery of money. The suit was contested and ultimately decreed in favour of the OC. The CD has not so far preferred any appeal against the decree and thus it became an execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Makum Pathar, A.T. Road, Margherita - 786181 in the State of Assam. Sri K.S. Haris, S/o. P.P. Ibrahim Hazi, Andoor, Parassinikadavu, Kannur District, Kerala State, PIN 670623, Managing Partner of Goodwood Products is authorised to submit the present application on behalf of the OC and the said authorisation is attached with the Application. Mr. Raj Karolin V, Advocate, M.K. Associates, Power House Extension Road, Ernakulam North, Cochin, Kerala, India- 682018, E-mail:[email protected] has been authorised by the OC to accept the service of process on its behalf and the authorisation is attached with the Application. However, the OC has not proposed any name of the Interim Resolution Professional. 5. ₹ 35,89,008.00 (Rupees Thirty Five lacs Eight Nine thousand and Eight only) is the total amount of debt being the outstanding amount due from M/s. Kitply Industries Ltd., towards supply of plywood Board by M/s. Goodwood Products as per Books of Accounts and the Credit Balance Confirmation Letter No. KIL/TN/GWP/13-14/094 dated 02.12.2013 with the Accrued Interest @6% Till Form 3 Demand Notice, Cost. Etc. granted thereon by decree in the Original Suit No. 47/2014 of Sub Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Adv. Raj Carolin. V to Corporate Debtor and others. xi) Copy of Form-3 under Rule-V of IB Rules to the Corporate Debtor. xii) Consignment tracking details of Form-3 issued to Corporate Debtor with the copy of postal receipt. xiii) Authorisation letter by Operational Creditor to K.S. Harris. 7. The matter was heard on 23.03.2021 and 19.04.2021. 8. The Applicant has filed written submissions on 01.04.2021 and it has reiterated the same what has been mentioned in its Application enclosing copy of the certain judgments in support of its claim and limitation period within which the Application has been filed. 9. On the other hand the Respondent/CD has filed its written submission on 28.04.2021 countering the contentions of the Applicant. The Respondent/CD has submitted in its written submission that - I. THE LAW IS SETTLED THAT RESOLUTION PLAN ONCE APPROVED BY THE HON'BLE ADJUDICATING AUTHORITY BECOMES BINDING ON ALL STAKEHOLDERS AND ALL CLAIMS NOT DEALTH WITH STAND EXTINGUISHED. (i) It is pertinent to mention that recently the Hon'ble Supreme Court in the case titled as Ghanashyam Mishra and Sons Private Limited through the Authorised Signa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. 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. This the successful resolution applicant does on a fresh slate, as has been pointed out by us hereinabove. For these reasons, the NCLAT judgment must also be set aside on this count.... (ii) It is a matter of record that the OC though belatedly but did file its claim before the RP of the Corporate Debtor during the Corporate Insolvency Resolution Process (hereinafter 'CIRP') on 20.11.2019 which was rejected by the RP. Pursuant thereto the OC filed the application challenging the rejection by RP before this Hon'ble Adjudicating Authority which was also rejected by this Hon'ble Adjudicating Authority vide order dated 10.05.2019. However, prior to that this Hon'ble Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority has no power to reopen the resolution process which has already been closed. Therefor the remedy available to the applicant is lying elsewhere. In view of the above settled position of facts and law the present application preferred by OC under Section 9 of I B Code is hopelessly bared by time and after the Resolution Plan was approved way back on 07.12.2018 and the Resolution Applicant has already stepped into the shoes of the Corporate Debtor and also the corpus of Resolution Plan has also been disbursed amongst the stakeholders. In any event the claim of the Applicant OC stands extinguished on approval on approval of the resolution plan and thus neither it is entitled to pursue and maintain this present application nor this Hon'ble Adjudicating Authority with all due respect and humbleness has any power and jurisdiction to consider the present application. The Corporate Debtor therefore prays that this Hon'ble Adjudicating Authority may be pleased to dismiss the present application and impose exemplary cost on OC for wasting the previous judicial time of this Hon'ble Adjudicating Authority. 10. It is observed that: (1) The Appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan.... Prior to Ghanashyam (supra), the Hon'ble Supreme Court in case titled as 'Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta and others' (2020) 8 SCC 531 (famously known as Essar Judgment) settled the position of law and held in para 105 107 as under: 105. .... Section 31 (1) of the Code makes it clear that once a resolution plan is approved by the Committee of Creditors it shall be binding on all stakeholders, including guarantors. This is for the reason that this provision ensures that the successful resolution applicant starts running the business of the corporate debtor on a fresh slate as it were .... ORDER 11. Considering (a) the arguments advanced by the Counsels of both the parties, (b) papers/documents made available before this Bench, (c) the points mentioned in Para 9 (1) to (8) above and (d) th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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