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TMI Blog2023 (3) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... B Code, 2016, especially, when he is not a Privy, to the Resolution Plan. Application dismissed. - Hon'ble Judges M. Venugopal, J. (Member (J)) and Shreesha Merla, Member (T) For the Appellant : P.H. Arvindh Pandian, Senior Advocate for K. Chandramohan, Advocate For the Respondents/Defendant : Krishnan Venugopal, Senior Advocate for Elamathi, and Kaushik Ramaswamy, Advocates and Party-in-Person ORDER Background : 1. The Petitioner/Appellant, has preferred the instant IA No. 215 of 2023 in Comp. App (AT) (CH) (INS.) No. 58 of 2023, seeking 'Permission', from this 'Tribunal', to permit 'him'/'Third Party' to the Proceedings, to prefer the instant Comp. App (AT) (CH) (INS.) No. 58 of 2023. Petitioner/Appellant's Submissions: 2. According to the Petitioner/Appellant, the present Comp. App (AT) (CH) (INS.) No. 58 of 2023, was filed by him, in respect of the 'Impugned Order', dated 03.02.2023 in 'IA(IBC)/288(CHE)/2022 in CA/1/IB/20107', passed by the 'Adjudicating Authority' ('National Company Law Tribunal', Division Bench - I, Chennai), in 'Approving', the 'Reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de Pvt. Ltd. v. Ashray Vyapaar Pvt. Ltd. Ors. (vide Comp. App Ins. No. 320 of 2022), reported in MANU/NL/0469/2022), wherein at Paragraphs 20, 25 to 27, it is observed as under: 20. The learned Senior Counsel for the Appellant has further questioned the motives of Respondent No. 1, which according to him is apparent from the fact that for a debt of Rs. 50 crores, Respondent No. 1 obtained assignments for the consideration of Rs. 9 crores and in the Application under Section 7, he is claiming a debt of Rs. 24,864,480,162.85/-, which itself indicate the greed of Respondent No. 1 and mala-fide attempt to take the entire assets of the Corporate Debtor in the name of his being assignee of debts of creditors of the Company. 25. The date of default on which the debt fell due is mentioned in the Application as 19.12.2019, 19.12.2019 is the date when Company Petition No. 355 of 1997 was dismissed for non-prosecution, which order was subsequently recalled on 28.02.2020. How the dismissal of Company Petition No. 355 of 1997 in default on 19.12.2019 can give cause of action to file an Application under Section 7 by Respondent No. 1 has not been explained. The assignment deeds on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated by it and pending before the Ld. DRT Kolkata being T.A. No. 64/1994 and R.P. No. 42/1996. 27. When the Recovery Certificate was issued to the Allahabad bank in 1996, it gave a fresh cause of action to file application within a period of three years, in view of the law laid down by the Hon'ble Supreme Court in Dena Bank vs. C. Shivakumar Reddy and Anr. - (2021) 10 SCC 330. The limitation for filing any application for recovery for defaulted amount came to an end three years thereafter.'' Pleas of 1st Respondent: 7. The Learned Senior Counsel for the 1st Respondent submits that the Petitioner/Appellant, being an 'Unsuccessful Resolution Applicant', has 'No Locus Standi', to question the 'Approval', granted by the 'Adjudicating Authority' ('Tribunal') on 03.02.2023 of the 'Resolution Plan' of the '2nd Respondent/Successful Resolution Applicant'. Also that, the 'Petitioner Appellant', is not a 'Stakeholder', within the meaning of Section 31 (1) of the I B Code, 2016, and hence, he is not an 'Aggrieved Party', in respect of the 'impugned order', in approving t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditors JEKPL Pvt. Ltd. and Ors., (vide Comp. App. (AT) INS. 969 of 2020), reported in MANU/NL/0426/2020, wherein at paragraphs 1 and 2, it is observed and held as under: 1. Appellant is the 'Unsuccessful Resolution Applicant' whose Resolution Plan was rejected by the Committee of Creditors. It has assailed impugned order dated 9th September, 2020 passed by the Adjudicating Authority (National Company Law Tribunal), Allahabad Bench in I.A. No. 208/2020 in CA No. 188/2019 in CP No. (IB) 24/ALD/2017 by virtue whereof the Adjudicating Authority while declining to accede to the prayer for reversal of money to the Successful Resolution Applicant in the event of dismissal order from the Hon'ble Apex Court, directed implementation of the approved Resolution Plan on or before the extended date i.e. 30th September, 2020. The impugned order has been assailed on the ground that the erstwhile Committee of Creditors of the Corporate Debtor, in connivance with the Successful Resolution Applicant, accepted a re-negotiated fresh Resolution Plan and the application of the Committee of Creditors under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 ( I B Code for short) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors comprising of the creditors as stakeholders has not objected to same rather been privy to it on account of hardship due to prevailing circumstances, the Appellant cannot be permitted to cry foul. It is not a case of alleged material irregularity in the Corporate Insolvency Resolution Process which is in final stages with the approved Resolution Plan being under implementation. Outbreak of COVID-19 pandemic has slowed down the economic activity and operations have been adversely impacted. Viewed in that context some necessary changes in the agreed terms and extension of time for implementation would not be uncalled for. Be that as it may, the Appellant has no locus to maintain that the change in terms of the approved Resolution Plan in regard to extension of time for induction of upfront amount as also implementation of the Resolution Plan has jeopardized its legal rights qua consideration of its Resolution Plan which has been rejected.'' 14. The Learned Counsel for the 1st Respondent, cites the decision of this 'Tribunal', between Ajay Gupta v. Pramod Kumar Sharma, RP of M/s. B.B. Foods Pvt. Ltd. (vide Comp. App (AT) (INS.) No. 35 of 2022), reported in MANU/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o far as affidavit dated 17.11.2021 is concerned, though the appellant stated in paragraph 3 thereof that the payment of upfront amount under the resolution plan was in no way going to modify the plan but, that had only been an expression of the understanding of the appellant about the legal effect of the propositions put forward by him, which included the modification of the term of plan from 180 days to 90 days. Such a proposition could not have been treated as formal or innocuous or of no material bearing. 15. So far as the factor relating to divulging of the contents of the plan is concerned, the same had been of the making of the appellant himself. If the appellant had chosen to divulge/disclose the terms of its resolution plan before the Adjudicating Authority, there had not been any fault on the part of the resolution professional or the CoC or the other resolution applicant. 16. Thus, the view taken by the Adjudicating Authority as also by the Appellate Tribunal appears to be reasonable and sound, calling for no interference. 17. Before concluding on the matter, we need to indicate two other relevant factors concerning this matter. One is that the other resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to get back the liquidation value of their respective credit limits. Thus, on the peculiar facts of the present case, we do not wish to disturb the resolution plan leading to the on-going operation of the Respondent No. 1.'' 17. The Learned Counsel for the 1st Respondent places, reliance on the Judgment of this 'Tribunal' dated 14.02.2022, in Comp. App (AT) (INS.) No. 628 of 2020, between Jet Aircraft Maintenance Engineers Welfare Association v. Ashish Chhawchharia, RP of Jet Airways (India) Ltd. and Ors., reported in MANU/NL/0126/2022, wherein at Para 36, it is observed as under: 36. In the above context we may refer to recent judgment of Hon'ble Supreme Court in Civil Appeal No. 8411 of 2019 - Bank of Baroda and Anr. vs. MBL Infrastructure Limited Ors. decided on 18th January, 2022. In the above case, Successful Resolution Applicant was held to be ineligible under Section 29A to submit a Resolution Plan. Hon'ble Supreme Court held that Plan submitted by Respondent No. 3 ought to have been rejected, but noticing the fact that Plan has been approved and Successful Resolution Applicant has infused substantial money and all on-going projects were o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent, he took over the control of the 'Corporate Debtor', and the 'New Board of Directors', was constituted, who took over the 'Management' of the 'Corporate Debtor', and the '1st Board Meeting' of the revived 'Corporate Debtor', took place on 06.03.2023. 19. The Learned Counsel for the 2nd Respondent points out that there is 'no vested right', conferred upon the 'Petitioner/Appellant/Unsuccessful Resolution Applicant', to question the 'Approval of the Resolution Plan', by the 'Adjudicating Authority', because of the simple fact that the 'Petitioner/Appellant', had subjected himself to the very process of revision of the 'Resolution Plan'. 20. The Learned Counsel for the 2nd Respondent, brings it to the notice of this 'Tribunal' that the email sent by the 'Petitioner/Appellant', to the 1st Respondent, in respect of the '2nd Revision of Resolution', will indicate that the 'Petitioner/Appellant', had not raised any 'protest', whatsoever, with the 'Committee of Creditors' decision to revise the 'Plan', for the second time, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal', since he has suffered, due to the 'Resolution Process'. Therefore, he prays for the 'Grant of Leave', in IA No. 215 of 2023 in Comp. App (AT) (CH) (INS.) No. 58 of 2023, to prefer the main 'Appeal', in the interest of Justice. 26. On behalf of the 1st Respondent, a 'legal plea', is taken to the effect that the 'Petitioner/Appellant', is not a 'Stakeholder', coming within the ambit of Section 31 (1) of the I B Code, 2016, and further that an 'Unsuccessful Resolution Applicant', cannot be considered a 'Stakeholder', pertaining to the 'Corporate Debtor'. 27. Furthermore, it is projected on the side of the 1st Respondent that the 'Adjudicating Authority', passed an 'impugned order', approving the 'Resolution Plan', for the 'Corporate Debtor', after it was approved by the 'Committee of Creditors', in exercise of their 'Commercial Wisdom'. In short, the 'Petitioner/Appellant', is not a 'Privy', to the 'Resolution Plan', and hence, according to the '1st Respondent', he is 'not an Aggrieved Person', in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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