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TMI Blog2022 (10) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of Adjudicating Authority approving the Resolution Plan. The interest of justice will be served in issuing direction to the Resolution Applicant to make distribution to the Appellant as per its admitted claim of Rs.956.21 crores , which however, shall be without affecting distribution of amounts to other Financial Creditors both Assenting and Dissenting Financial Creditors and other stake holders. Appeal allowed. - Company Appeal (AT) (Insolvency) No. 584 of 2021 & Interlocutory Application No. 2720 of 2021 - - - Dated:- 21-10-2022 - [Justice Ashok Bhushan] Chairperson And [Barun Mitra] Member (Technical) For the Appellant : Mr. R. Venkatramani, Sr. Advocate with Mr. Piyush Beriwal, Mr. Ankit Raj, Chitvan Singhal, Ms. Divya Srivastava, Mr. Praveen Vignesh, Advocates for PNB. Mr. Sunil Aggarwal, Sr. Standing Counsel Mr. Tushar Gupta, Jr. Standing Counsel Mr. Parinay Gupta, Advocate (for Applicants in I.A. 2720/21) For the Respondents : Mr. Malhar Zatakia, Mr. Dhiraj Kumar Totala, Ms. Aditi Bhansali, Ms. Tanya Chib and Mr. Parimal Kashyap, Advocates for RP (AZB Partners) Mr. Raghav Chadha, Advocate. Mr. Abhinav Vashisht, Sr. Advocate with Ms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 19.09.2020 stating that claim of the Appellant would be reduced by the Fair Market Value of the Pledged Shares. The RP updated the List of Creditors as on 25.09.2020. (iv) On 22.09.2020, the Appellant has filed a claim of Rs.994.16 crores. The Respondent No.1 has reduced the claim of the Appellant on the ground that on invocation of the Pledged Shares, the Appellant had become beneficiary owner of the Pledged Shares and accordingly, the Appellant s claim must be reduced with the total value of the Shares of the Corporate Debtor as transferred to the Appellant pursuant to the invocation of the pledged. In the list of creditors published on 25.09.2020, the admitted claim of the Appellant stood reduced by approx. Rs.202 crores. Note-2 of the List of Creditors mentions the following: Notes: 2 The claim of Punjab National Bank was provisionally admitted and remains subject to the outcome of the Civil Appeal No(s) 5443/2019 in the matter of PTC India Financial Services Ltd. versus Mr. Venkateshwarlu Kari Anr. in the Supreme Court of India. Now the admitted claim is reduced by INR 2,020,992,844 in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No. 1/ RP amounting to Rs.202.09 Cr. (Approx. Two Hundred and Two Crore and Nine Lac); AND/ OR c) Grant ad-interim stay on the order impugned dated 22.06.2021 in I.A. No.2081 of 2020 in CP (IB) No.2205/MB/2019 passed by Hon ble National Company Law Tribunal, Mumbai Bench I; d) Direct the Hon ble National Company Law Tribunal, Mumbai bench I to decide the I.A. No.2480 of 2020 in CP (IB) No.2205/MB/2019 expeditiously and direct the successful resolution application/ respondents to maintain status quo as on date in regards to the implementation of the resolution plan; and/ or e) Award costs of and incidental to the appeal to the appellant; and/or f) Pass any other order/ orders as this Hon ble Tribunal may deem fit and proper under the facts and circumstances of the present case and in the interest of justice. 3. We have heard learned Senior Counsel for the Appellant and learned Counsel for Resolution Professional, learned Counsel for Resolution Applicant as well as learned Counsel appearing for Successful Resolution Applicant. 4. The learned Senior Counsel appearing for the Appellant submits that the RP after having admitted the claim of Rs.956 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt delivered on 12.05.2022 in PTC India Financial Services Ltd. Vs. Mr. Venkateshwaralu Kari and Mandava Holdings Pvt. Ltd., the law shall be treated to be the same as declared by the Hon ble Supreme Court even on the day when amount of claim of the Appellant was reduced by Resolution Professional. The reduction of the claim being contrary to the law as declared by the Hon ble Supreme Court is untenable and full claim amount deserve to be restored. 6. The learned Counsel for the RP, refuting the submission of learned Counsel for the Appellant submits that the Appellant is not entitled for any relief in this Appeal. It is submitted that Appellant being Assenting Financial Creditor to the Resolution Plan cannot be allowed to challenge the approval of the Resolution Plan. The Appellant voted for Resolution Plan, wherein Rs.747.94 crores have been admitted as Appellant s claim and Appellant having exercised its commercial wisdom in approving the Plan, the Appellant is estopped from questioning the approved Resolution Plan. The Appellant is also guilty of suppressing several material facts in the Appeal. The Appellant has filed four different claims and the allegation of the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s binding. Even the Dissenting Financial Creditors cannot challenge the approved Resolution Plan, hence, there is no occasion for Assenting Financial Creditor to challenge the Plan. The Resolution Plan is being presently implemented. Interlocutory Application No. 2720 of 2021 9. We also need to consider I.A. No.2720 of 2021 filed in this Appeal by Principal Commissioner of Income Tax Central-3 Mumbai. 10. The Principal Commissioner in this IA prayed for intervention in the appeal and has also prayed for further reliefs. The Applicant in paragraph 11 of the IA has made the following prayer: A) The Applicant be permitted to intervene in Appeal No 584/ 2021 filed by Punjab National Bank B) That the Applicant be permitted to bring on record the tax claims in the form of dues where appeals filed by the department are pending, both before the High Court and Apex Court as also the demands which have arisen/likely to arise from the completion of the proceedings for period prior to the date of admission of resolution application. C) That the Applicant be permitted to seek a clarification regarding its entitlement to carry out proceedings, other than recovery proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor shall extend all its assistance to defend such proceedings at the cost of the Resulting Company. 12.3 Subsequent to the Appointed Date, if any proceedings are initiated by any third party (including regulatory authorities) by or against the Demerged Company under any statute, such proceedings shall be continued and enforced only against the Resulting Company and the Resulting Company shall bear the liabilities of such proceedings at its own cost. The Corporate Debtor shall extend all its assistance to defend the liabilities of such proceeding at the cost of the Resulting Company. As to what is the Resulting Company has been defined in Part II definition Clause 4.12 as under: 4.12 - Resulting Company means Airjet Ground Services Limited, a company incorporated under the provisions of the Companies Act, 2013 with an authorised share capital of Rs. 1,00,00,000/- and paid up share capital of Rs. 50,00,000/- In view of the aforesaid, the submission of the learned Additional Solicitor General is that the Resolution plan itself protects the rights of the appellant-department to recover as though there was no outstanding liability on that date, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending before the Hon ble Supreme Court, does not help the Applicant, when it has not filed any claim with the RP. 15. The learned Counsel for the Resolution Applicant opposing the submission of the learned Counsel for the Applicant contends that Applicant has sought only intervention and intervenor cannot claim any relief for itself. Reliance is placed on judgment in (1999) 3 SCC 141 Saraswati Industrial Syndicate Ltd. vs. Commissioner of Income Tax Haryana Rohtak. Learned Counsel for the Successful Resolution Applicant further submits that Clause-12 of the Resolution Plan, which has been relied by Applicant is part of Scheme of Arrangement between Jet Airways (India) Ltd., Demerged Company of Corporate Debtor and Airjet Ground Services Limited (Resulting Company). He submits that Clause-12 cannot fasten any liability on Resolution Applicant, nor the liability has been taken care in the Resolution Plan. 16. We have considered the submission of learned Counsel for the parties in Appeal as well as in IA and have perused the record. 17. From the facts brought on record in the Application and replies filed thereto, it is clear that Applicant did not file any claim in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. Learned counsel for the interveners submits that he is entitled to the same order as we have just passed. We cannot pass such an order in an intervention application. The only purpose of granting an intervention application is to entitle the intervener to address arguments in support of one or the other side. Having heard the arguments, we have decided in the assessee's favour. The interveners may take advantage of that order. 20. We have permitted the Applicant (Intervenor) in the matter and heard the argument of all the parties. We, however, are of the view that apart from permitting the intervention by the Applicant in this Appeal, none of the reliefs in Relief (b) and (c) of the Intervention Application can be granted by this Tribunal. The Clauses of Scheme of Arrangement as relied by parties are self-explanatory and no clarification is required by this Tribunal in these proceedings. Interlocutory Application No.2720 of 2021 is disposed of accordingly. Appeal 21. There is no dispute between the parties regarding facts and sequence of the events. The Appellant has filed its claim before the RP firstly on 04.07.2019. In paragraph 14 of the reply filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) as on the date of invocation of the pledge i.e., June 17, 2019, in line with the decision of the NCLAT in India Power Corporation Ltd. 23. The List of Creditors updated as on 25.09.2020 contains Note-2, which is to the following effect: Notes: 2 The claim of Punjab National Bank was provisionally admitted and remains subject to the outcome of the Civil Appeal No(s) 5443/2019 in the matter of PTC India Financial Services Ltd. versus Mr. Venkateshwarlu Kari Anr. in the Supreme Court of India. Now the admitted claim is reduced by INR 2,020,992,844 in terms of the order passed by the Hon ble National Company Law Appellate Tribunal in the matter of India Power Corporation Ltd. vs. Meenakshi Energy Ltd. and Other (in Company Appeal (AT) (Insolvency) No.1220 of 2019) pronounced on September 10, 2020. 24. The claim of the Appellant, which was lastly admitted by the RP was for an amount of Rs.956.21 crores admitted on January 7, 2020, which stood reduced to Rs.747.94 crores submitted by Appellant on 22.09.2020. The reduction was affected by Resolution Professional on the ground of invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice two facts in the above context. The claim of the Appellant was reduced by the Resolution Professional on 25th September 2020, the Plan came to be discussed in the 17th Meeting of CoC held on 03.10.2020. The Representative of the Appellant in the CoC Meeting held on 03.10.2020 had raised the issue of reduction in their claimed amount, relevant extract of the Minute noticing the aforesaid is follows: The representative from PNB enquired on the reason for the reduction in their claim amount to which the RP explained that the said reduction is to the extent of the fair market value of the shares held by PNB as on the date of invocation of the pledge and the communication in this regard was sent to the PNB on September 19, 2020. The RP further clarified that based on the prevailing case laws, a decision was taken on the matter the change was also reflected in the List of Creditors version 9. 27. The next CoC Meeting was held on 20.10.2020, where the record of e-voting was noticed where also issue of reduction of claim of Appellant was raised and noted. Following was notice in the Minute: The representative of PNB was not agreeable to the proposal and requested the RP ..... 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