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TMI Blog2020 (1) TMI 1603X X X X Extracts X X X X X X X X Extracts X X X X ..... erational Creditors are in no way different. All the Operational Creditors shall stand at the same footing as per the waterfall mechanism under Section 53 of the Insolvency and Bankruptcy Code, 2016. There is no valid reason to reject the Resolution Plan. The Committee of Creditors has considered all the points. The Corporate Debtor is an ongoing concern . The Committee of Creditors has taken into consideration the interest of all the stakeholders. Application dismissed. - CA (IB) Nos. 162, 176/CTB/2019, TP No. 42/CTB/20l9, CP (IB) No. 251/KB/2017, IA No. 160/2019 and CA No. 92/CTB/2019 - - - Dated:- 30-1-2020 - Sucharitha R., Member (J) and Satya Ranjan Prasad, Member (T) For Appearing Parties: D. Basu, Saurav Panda, Charu Bansal, Raj Mohanty, Prasenjeet Mohapatra, A.N. Das, N. Sarkar, Aamir Khan, K.C. Satapathy, Jishnu Saha, Sr. Adv. Rajarshi Dutta, N.S. Auluwalia, Saswat Acharya, Adhish Sharma, A. Mohanty, A.K. Dey, Lalatendu Mohanty, Diwakar Maheshwari, Amit Patnaik and Pratiksha Mishra, Advs. ORDER Sucharitha R., Member (J) 1. The applicant in both CA (IB) No. 162 176 are one and the same person and both applications are filed under Section 60(5) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same has been admitted under contingent liability. Certain claims has been rejected by the Resolution Professional where there is difference in amount claimed from the amount verified and interest accrued up to insolvency commencement date. The applicant by Letter dated 04.11.2019 requested the Resolution Professional to admit the claim. This matter was also discussed by the CoC at the 30th Meeting dated 07.11.2019. The applicant states that Resolution Professional had delayed the admittance of the claim and wrongful classification has seriously prejudiced the Department. The applicant further submits that the total claim amount admitted by the Resolution Professional is to the tune of Rs. 220.57 crores and the Resolution Professional has rejected the claim of Rs. 29,72,80,531/- (Rupees Twenty-Nine Crores Seventy-Two Lakhs Eight Thousand Five Hundred and Thirty-One). The applicant further submits that Resolution Professional has delayed in admission of the claim. Hence, in the Resolution Plan does not have provision for the amount. Hence, seeks relief from this Adjudicating Authority to pass necessary directions to the Resolution Professional to admit the claim up to the tune of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to in Section 30(2) of the Code. The applicant quotes in support of its stand, the cases decided by the Hon'ble Supreme Court in Committee of Creditors of Essar Steel Vs. Satish Kumar Gupta, State Bank of India Vs. ARGL Limited by the Principal Bench, NCLT, Binani Industries Vs. Bank of Baroda Anr. by the Hon'ble NCLAT. The landmark judgment of the Hon'ble Supreme Court in Swiss Ribbons Pvt. Ltd. Anr. Vs. Union of India Ors., K. Sashidhar Vs. Indian Overseas Bank, 2019 SCC Online SC 257 by the Hon'ble Apex Court. 8. The applicant further submits that Expression of Interest had an initial deadline of 24.08.2019 which was subsequently extended to 01.10.2019, then to 21.10.2019 and was then eventually extended to 31.10.2019 by the Resolution Professional. The Resolution Plan of the M/s. Sterlite Power Transmission Limited (SPTL) was approved by the Committee of Creditors on 13.11.2019 in the 31st Committee of Creditors Meeting. However, only in this meeting the Resolution Professional updated the claims of this applicant. Hence, there was no scope for the successful Resolution Applicant to have knowledge of this claim of the applicant. 9. The applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s period of 270 days was due to expire on 02nd April, 2018 and it was extended further up to 07th August, 2019. Meanwhile, IA No. 18/CTB/2019 was filed for replacement of the Resolution Professional. By Order dated 08th July, 2019, the present Resolution Professional was appointed. The present Resolution Professional filed another application before this Adjudicating Authority seeking exclusion of time lost during litigation to be excluded in counting Corporate Insolvency Resolution Process. This application was allowed by this Adjudicating Authority by Order dated 08th August, 2019. This Adjudicating Authority granted 98 days to conclude Corporate Insolvency Resolution Process the time was extended till 14th November, 2019. The respondent further submits that by E-mail dated 30th August, 2019 the Resolution Professional has invited this applicant to submits its claim, if any. In response thereto, the applicant on 18th September, 2019 filed its claim to the tune of Rs. 348.57 which was duly acknowledged by the Resolution Professional. The Resolution Professional vide E-mail dated 30th September, 2019 sought clarification regarding calculation of interest/penal interest. By E-mail d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess. Since, the claim by Department was made only on 18th September, 2019 onwards. The applicant had included the interest till the date of submission of Claim Form. Therefore, the applicant is not entitled to the interest during the Corporate Insolvency Resolution Process of the Corporate Debtor. Hence, the Resolution Professional has rightfully rejected the claim. Furthermore, the applicant have not stated as to why they have not submitted the claim from 07.07.2017 to 18.09.2019. 13. The claim of the applicant falls under the category of Operational Creditor. As per Section 30(2) (b), the payment to Operational Creditor shall not be less than the amount to be paid to the Operational Creditor in the event of liquidation of the Corporate Debtor under Section 53 or less than the amount payable to the Operational Creditor. If the resolution proceed were to be distributed in accordance with the priority under Section 53. However, Regulation 38 of the IBBI (Insolvency Resolution Process for Corporate Person) Regulations, 2016 requires that amount due to Operational Creditor shall be given priority over Financial Creditor. The liquidation value of the present Corporate Debtor is Nil. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessarily take into account these key features of the Code before it arrives at a commercial decision to pay off the dues of financial and operational creditors. There is no doubt whatsoever that the ultimate discretion of what to pay and how much to pay each class or sub-class of creditors is with the Committee of Creditors, but, the decision of such Committee must reflect the fact that it has taken into account maximising the value of the assets of the Corporate Debtor and the fact that it has adequately balanced the interests of all stakeholders including Operational Creditors. This being the case, judicial review of the Adjudicating Authority that the Resolution Plan as approved by the Committee of Creditors has met the requirements referred to in Section 30(2) would include judicial review that is mentioned in Section 30(2) (e), as the provisions of the Code are also provisions of law for the time being in force. Thus, while the Adjudicating Authority cannot interfere on merits with the commercial decision taken by the Committee of Creditors, the limited judicial review available is to see that the Committee of Creditors has taken into account the fact that the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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