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TMI Blog2024 (4) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... SHYAM MISHRA AND SONS PRIVATE LIMITED [ 2021 (4) TMI 613 - SUPREME COURT] and COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA OTHERS [ 2019 (11) TMI 731 - SUPREME COURT] We allow the instant writ petition and set aside the impugned order under Section 148A(d). Decided in favour of assessee. - HON'BLE MR. JUSTICE YASHWANT VARMA AND HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV For the Petitioner : Ms. Udita Singh, Adv. For the Respondents : Mr. Shlok Chandra, Sr.SC with Ms. Madhavi Shukla and Ms. Priya Sarkar, Jr.SCs along with Mr. Ujjawal Jain, Adv. ORDER 1. This writ petition impugns the order dated 30 July 2022 referrable to Section 148A(d) of the Income Tax Act, 1961 [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rational creditors and other stakeholders, the corporate debtor is revived and is made an on-going concern. After CoC approves the plan, the adjudicating authority is required to arrive at a subjective satisfaction that the plan conforms to the requirements as are provided in sub-section (2) of Section 30 of the I B Code. Only thereafter, the adjudicating authority can grant its approval to the plan. It is at this stage that the plan becomes binding on the corporate debtor, its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan. The legislative intent behind this is to freeze all the claims so that the resolution applicant starts on a clean slate and is not flung with any surprise claims. If tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an, as approved by the Committee of Creditors, takes effect, it shall be binding on the corporate debtor as well as the guarantor. This is for the reason that otherwise, under Section 133 of the Contract Act, 1872, any change made to the debt owed by the corporate debtor, without the surety's consent, would relieve the guarantor from payment. Section 31(1), in fact, makes it clear that the guarantor cannot escape payment as the resolution plan, which has been approved, may well include provisions as to payments to be made by such guarantor. This is perhaps the reason that Annexure VI(e) to Form 6 contained in the Rules and Regulation 36(2) referred to above, require information as to personal guarantees that have been given in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who would successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution applicant does on a fresh slate, as has been pointed out by us hereinabove. For these reasons, NCLAT judgment must also be set aside on this count. 5. In view of the aforesaid principles, the successful resolution applicant cannot be foisted with any lia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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