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TMI Blog2022 (11) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the Appellant has not filed its claim within the time. From Rule 12 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the claim has to be submitted on or before 90th day of the insolvency commencement date i.e. in this case the insolvency commencement date is 03.12.2018 and the 90th day expires on 03.03.2019, however, the appellant admittedly filed its claim on 24.07.2019, which is beyond the period prescribed under the Rules. Whilst the facts leading to passing of the order (impugned) dated 02.01.2020 is that the Respondent (RP) filed an application under Section 30(6) read with Section 60(5) of the I B Code, 2016 seeking approval of the Resolution Plan under Section 31 of the Code read with Regulation 39 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 in respect of the Corporate Debtor. The Adjudicating Authority after satisfying that the plan is in compliance of sub-section (2) of Section 30 and meets the requirement and as approved by the Committee of Creditors under sub-section (4) of Section 30 approved it vide its order dated 02.01.2020 - The ground for rejection is limited to the matter specified un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved the Resolution Plan of the Successful Resolution Applicant in exercise of powers conferred under Section 31 of the I B Code, 2016. Brief Facts: Appellant s Submissions: 2. The Learned Counsel, appearing for the Appellant has submitted that the present Appeal is preferred being aggrieved by the aforesaid order. 3. It is submitted that the Appellant is the Department of Customs and falls under the category of Operational Creditor of the Corporate Debtor since the Corporate Debtor is liable to pay the customs duty. 4. It is submitted that the Corporate Debtor had imported capital goods on 31.08.2010 vide four bills of entry valued at Rs. 9,83,28,413/- at zero rate of duty of customs under EPCG authorization and forgone customs duty Rs.1,37,97,465/-. The Appellant, on 03.08.2017, issued summons to explain the reasons for non-fulfilment of export obligation mandated against EPCG authorization issued to them for duty free import of capital goods. On 01.02.2018, the Chief Operating Officer of the Corporate Debtor appeared and explained that they will deposit Rs.20 lacs on account of customs duty forgone on import under EPCG scheme at nil rate duty of customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the Appellant dues. Respondent s Submissions: 9. The Learned Counsel appearing for the Respondent, at the outset, submitted that the appeal against the order approving the resolution plan may be filed on the grounds as enumerated under Section 61(3) of the I B Code, 2016, however from the grounds of the present Appeal it does not satisfy that it covers the same and deserves to be dismissed. 10. It is submitted that the Resolution plan for the Corporate Debtor was approved by the Committee of Creditors in exercise of the powers enumerated under Section 30 of the I B Code, 2016 and that the commercial wisdom of the creditors is paramount and cannot be interfered with as held by the Hon ble Supreme Court in K. Shashidhar Vs. Indian Overseas Bank Ors. in Civil Appeal No. 10673 of 2018 para 31 33. 11. It is submitted that the claim filed by the Appellant is highly belated. It is submitted that pursuant to the commencement of CIRP of the Corporate Debtor dated 03.12.2018, the IRP issued a public announcement dated 06.02.2018 in Form-A as per Section 15 of the Code read with Regulation 6 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any proceedings such as the present appeal for the reason that the claim is not part of the Resolution Plan. In support of this contention the Learned Counsel relied upon judgment of the Hon ble Supreme Court in India Resurgence ARC Pvt. Ltd. Vs. Amit Metaliks Ltd. Anr. in Civil Appeal No. 1700 of 2021 para 10. 14. The Learned Counsel submitted that against the very same impugned order dated 02.01.2020 an appeal was preferred before this Tribunal by PNC Infratech Ltd. Vs. Deepak Maini Ors. in CA (AT) (Ins) No.143 of 2020 and this Tribunal vide its judgment dated 22.08.2022 dismissed the said Appeal by confirming the impugned order. Therefore, the Learned Counsel submitted that the impugned order dated 02.01.2020 (approval of Resolution Plan) attained its finality and submitted that the present appeal against the same impugned order, becomes Otios and liable to be dismissed. 15. In view of the reasons as stated above the Learned Counsel prayed this Bench to dismiss the Appeal. Analysis / Appraisal : 16. Heard the Learned Counsel appeared for the respective parties perused the pleadings, documents and citations relied upon by them. After analysing the pleadings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pur was approved by the Committee of Creditors. The Learned NCLT, Principal Bench, New Delhi vide Order dated 02.01.2020, approved the said Resolution Plan for implementation. 4. Prayer, Reliefs Concessions In relation to Any Other Liabilities the NCLT Approved Resolution Plan has specifically mentioned in Part VIII as Prayer, Reliefs Concessions which states as follows: a. .. b. .. c. .. d. The Learned Adjudicating Authority may kindly give appropriate directions to various tax authorities including CBDT and CBEC for waiver of any past liabilities, (known, unknown, accused or non-accused irrespective whether claimed or unclaimed from any authority) including but no limited to any potential MAT liability, potential liability under section 56, 50 CA and other sections of the Income Tax Act, interest/penalty etc. which may be levied by any authority upon and in relation to the implementation of this Resolution Plan. e. The Learned Adjudicating Authority may kindly give appropriate directions to various tax authorities such as GST, Sales Tax, Professional Tax, Sales Tax Deferral Schemes, or any other Taxes (Central or State or local) etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to whom statutory dues are owed,] creditors, guarantors and other stakeholders involved in the Resolution Plan. 6. Success Resolution Applicant (New Investor) Not bound by wrongs of earlier Promoters Further, section 32A of the Insolvency and Bankruptcy Code, 2016 provides immunity to the corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process. The said section reads as follows: (ii) a person with regard to whom the relevant investigating authority has, on the basis of material in its possession reason to believe that he had abetted or conspired for the commission of the offence, and the submitted or filed a report or a complaint to the relevant statutory authority or Court. Explanation. For the purposes of this sub-section, it is hereby clarified that, - (i) an action against the property of the corporate debtor in relation to an offence shall include the attachment, seizure, retention nor confiscation of such property under such law as may be applicable to the corporate debtor; (ii) nothing in this sub-section shall be construed to bar an action against the property of any person, othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 (impugned in this Appeal). Further, it is stated that the liabilities of the Corporate Debtor relating to period up to 02.01.2020, not covered under the Resolution Plan, stand extinguished completely. 20. The contention of the Appellant is that the Appellant being an Operational Creditor of the Corporate Debtor filed its claim and is entitled to claim from the Corporate Debtor. Per contra the stand of the Respondent is that the Appellant has not filed its claim within the time as prescribed under the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, therefore, the claim is barred by limitation, accordingly, the claim has not been considered. 21. It is an admitted fact that the Appellant filed its claim on 24.07.2019 whereas the public announcement was made on 06.12.2018 and it has been widely circulated in the English and Hindi newspapers and also posted on the IBBI website. The last date for submission of claim was 17.12.2018, however, the Appellant has not filed its claim within the time. 22. In this regard, it is apt to refer Rule 12 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, for better appreciation, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der sub-section (4) of Section 30 approved it vide its order dated 02.01.2020. The Adjudicating Authority at para 55 of the order dated 02.01.2020 stated that the Resolution Plan has been unanimously approved with 100% voting share much above the statutory requirement of 66% in terms of Section 30(4) of the Code and has the requisite statutory voting share. Further, it is stated that the decision of the Committee of Creditors is a reasoned and self-speaking one as required under proviso to Regulation 39(3) of the CIRP Regulations, 2016. Further, at para 57 it is stated that it is well settled proposition of law that commercial and business decisions of Committee of Creditors are not open to judicial review. The Adjudicating Authority cannot enquire into the commercial wisdom of Committee of Creditors. The ground for rejection is limited to the matter specified under Section 30(2). It is however reiterated that the resolution plan in question meets the requirements specified in Section 30(2) of the Code and the reasoned commercial decision of Committee of Creditors is neither discriminatory nor perverse with the aforesaid observations the plan has been approved. 27. Once the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2020 para 28 held as under: 28. The Appellate Authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the Adjudicating Authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the Adjudicating Authority in limited judicial review has been laid down in the case of Essar Steel (supra), the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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