9911796707
TMI Blog2024 (3) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... and sons private limited through the GHANASHYAM MISHRA AND SONS PRIVATE LIMITED THROUGH THE AUTHORIZED SIGNATORY VERSUS EDELWEISS ASSET RECONSTRUCTION COMPANY LIMITED THROUGH THE DIRECTOR ORS. [ 2021 (4) TMI 613 - SUPREME COURT ] has observed that it is trite law that the resolution applicant cannot be fastened with the liabilities in relation to the period upto the date of the resolution plan in case the resolution plan is approved under Section 31 of the IBC. There is no dispute that the resolution plan approved vide order dated 12th December, 2017 has attained finality and accordingly the claim of the creditors or statutory authorities has to be dealt with in accordance with the approved resolution plan. The principle of clean slate as propounded by the said decision requires that the corporate debtor viz. the Applicant herein cannot be fastened with any liability for a period upto the date of the approval viz. 12th December, 2017, even if such liability crystallizes after this date. That all liabilities payable to any creditor shall stand satisfied and discharged upon approval of the resolution plan, provided those sums are set aside against which all such liabilities are paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, Mumbai Region about its readiness and willingness to pay the dues of the Respondent as per the approved resolution plan and the same was also sent to the Respondent. The relevant paragraph of the said communication is quoted as under:- 4. According to the resolution plan approved by Hon ble NCLT the dues of operational creditors as on 18/05/2017 shall be paid @ 15% and this amount shall be payable in 8 installments commencing from June 2022 till March 2014 without any interest. In the present case the amount payable is Rs. 43,125/- and to be paid as above. 6. Mr. Dwivedi, learned Counsel for the Applicant would submit that thereafter, on 21st January, 2020, this Court (Coram: G. S. Kulkarni, J.) had passed the following order:- After hearing Mr. Sawant, learned Counsel for the applicant and Mr. Soman, learned Counsel for the judgment debtor, I am of the opinion that it would be appropriate that the applicant moves an application either before the Resolution Professional or before the National Company Law Tribunal as may be permissible under the provisions of Insolvency and Bankruptcy Code, 2016 (for short, IBC ). This would be desirable course of action in as much as the award ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the Applicant would submit that soon thereafter, till 15th February, 2024, the Applicant has made payment of Rs. 62,539/- towards the full and final payment in accordance with the resolution plan to the Respondent. Learned Counsel draws the attention of this Court to the Exhibit-D at pages 24 to 28 of the Additional Submissions dated 20th February, 2024, in Interim Application, filed in this Court. Learned Counsel would submit that, therefore, this Court set aside the warrant of attachment as the dues of the Respondent as per the approved resolution plan have been paid. 9. Mr. Jain, learned Counsel appearing for the Respondent would submit that in view of the order dated 16th January, 2024 of the NCLT, Mumbai in M.A. 718 of 2020 and in view of the payment of Rs. 62,539/- having been made by the Applicant to the Respondent in accordance with the resolution plan, nothing would survive in the Execution Application and this Court may pass the appropriate orders. 10. I have heard the learned Counsel and also perused the papers and proceedings in the matter. 11. It cannot be disputed that by order dated 12th December, 2017, passed by the NCLT, the resolution plan as submitted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oval of the resolution plan by the Adjudicating Authority under sub-section (1) or within such period as provided for in such law, whichever is later. Provided that where the resolution plan contains a provision for combination as referred to in section 5 of the Competition Act, 2002 (12 of 2003), the resolution applicant shall obtain the approval of the Competition Commission of India under that Act prior to the approval of such resolution plan by the committee of Creditors. 13. Therefore, once the resolution plan has been approved/sanctioned by the NCLT, it is binding on all the stakeholders. 14. Under Section 32 of the IBC, any appeal from an order approving the resolution plan by the NCLT, can be made in the manner and on the grounds laid down under Section 61 (3) of the IBC and such an appeal can be filed within 30 days before the National Company Law Appellate Tribunal ( NCLAT ). The NCLAT can allow further extension of time for sufficient cause but not beyond a period of 15 days. As on date and as also recorded by the NCLT order dated 16th January, 2024, no appeal has been filed by the Respondent and the period for filing the same has also long expired. 15. Moreover, the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... freeze all the claims so that the resolution applicant starts on a clean slate and is not flung with any surprise claims. If that is permitted, the very calculations on the basis of which the resolution applicant submits its plans would go haywire and the plan would be unworkable. 95. There is another reason which persuades us to take the said view. Clause (10) of Section 3 of the I B Code defines creditor thus: 3. (10) creditor means any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree-holder; 96. Clauses (20) and (21) of Section 5 of the I B Code define operational creditor and operational debt respectively as such: 5. (20) operational creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred; (21) operational debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; 97. Creditor therefore has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not part of the resolution plan. (emphasis supplied) 17. There is no dispute that the resolution plan approved vide order dated 12th December, 2017 has attained finality and accordingly the claim of the creditors or statutory authorities has to be dealt with in accordance with the approved resolution plan. The principle of clean slate as propounded by the said decision requires that the corporate debtor viz. the Applicant herein cannot be fastened with any liability for a period upto the date of the approval viz. 12th December, 2017, even if such liability crystallizes after this date. That all liabilities payable to any creditor shall stand satisfied and discharged upon approval of the resolution plan, provided those sums are set aside against which all such liabilities are paid. 18. It is not in dispute that the Applicant has discharged its liability in accordance with the approved resolution plan and paid an amount of Rs. 62,539/-, which it was permitted to paid in eight equally installments commencing from June, 2022 till March, 2024. 19. In the circumstances, I am of the view, that the warrant of attachment on the said current account be set aside. 20. Accordingly, the App ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
