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TMI Blog2024 (5) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... , as well as constitution of CoC with voting share as per claim, was in the knowledge of appellant from the very beginning. There are no fault in the RP s admission of claim of Respondent No. 2. There are no merit in this Appeal. The Appeal is accordingly dismissed. - [ Justice Rakesh Kumar Jain ] Member ( Judicial ) And [ Ajai Das Mehrotra ] Member ( Technical ) For the Appellant : Mr. Sudhir Makkar , Sr. Advocate with Ms. Mahima Ahuja , Ms. Varsha Banerjee and Mr. Sauya Gupta , Advocates For the Respondents : Mr. Amal Vivek , Advocate for R - 1. Mr. Deeptakirti Verma , Advocate for R - 2 JUDGMENT ( Hybrid Mode ) [ Per : Ajai Das Mehrotra , Member ( Technical ) ] 1. The present appeal has been filed by the Erstwhile Director of M/s Modern Syntex (India) Limited (Corporate Debtor) against the order of the Adjudicating Authority (NCLT) dated 15.6.2023 in IA (IB) No. 152/JPR/2023 in CP No. (IB)-39(PB)/2018. 2. The main application bearing CP No. (IB)-39(PB)/2018 was filed jointly by the Administrator of Specified Undertaking of Unit Trust of India (hereinafter referred as SUUTI) and its sister concern M/s UTI Trust Private Limited under Section 7 of Insolvency Bankruptcy Code, 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have admitted only the claim of Rs.34,80,96,657/-. 5. The SUUTI submitted before the Learned AA that the resolution plan was approved on 13.3.2023 by the CoC and was approved by the AA on 28.3.2022 and inclusion of dues cannot be open to challenge at this stage. The applicant had suppressed that OTS sanctioned by SUUTI was revoked in August 2009 and all original liabilities were restored and the said revocation has been acknowledged in the balance sheet of Corporate Debtor for the financial year 2010-11 to 2020-21. The AA dismissed the said IA vide order dated 15.6.2023 noting the cancellation of OTS and the comments in the balance sheet of the corporate debtor. 6. During the hearing before us, the appellant was asked to show how he is legally entitled to file the present appeal, as the appellant is an Independent Director in the Corporate Debtor. Secondly, after the approval of Resolution Plan, it is the Successful Resolution Applicant (SRA) who has to bear the cost of Resolution Plan, including payments to the creditors following the provisions of Section 53 of IBC, 2016, and ex-Management has no financial stake regarding this. 7. IA No. 2076 of 2024 was then filed by Mr. Kamal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o how the exorbitant claim was accepted. It was submitted that Resolution Professional should have undertaken appropriate verification and analysis before admitting the claim. The counsel for the appellant cited following decisions to support his contentions:- (i) P.M. Cold Storage Pvt. Ltd. vs. Goouksheer Farm Frsh Pvt. Ltd. Anr., Company Appeal (AT) (Ins) No. 6150 of 2020 (ii) Sumat Kumar Gupta vs. M/s Vardhman Industries Limited, Company Appeal (AT) (Ins) No. 762 of 2022 11. Shri Ankit Goel, the present Resolution Professional (Respondent No. 1) filed response dated 02.12.2023 wherein he submitted that in the 19th CoC Meeting held on 01.09.2023, the CoC resolved to replace Mr. Partha Sarthy Sarkar and appointed Mr. Ankit Goel as the Resolution Professional of the Corporate Debtor. The NCLT, Jaipur vide order dated 05.09.2023 confirming the appointment of Mr. Ankit Goel. The erstwhile Resolution Professional has filed Company Appeal (AT) (Insolvency) No.1340 of 2023 before this Tribunal challenging the order passed by NCLT appointing Mr. Ankit Goel as the Resolution Professional. The present Resolution Professional submitted that Mr. Partha Sarthy Sarkar is not cooperating and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the quantum of dues are clearly setout in para 6 of the order of NCLT dated 28.03.2022 initiating CIRP under Section 7, which was not challenged either by the Appellant or the erstwhile management. x) It was submitted that the same amount of dues (updated as per passage of time) was filed by Respondent No. 2 before the Resolution Professional and is reflected in the list prepared by the Resolution Professional under Regulation 13(2) of the Insolvency Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. xi) It was further submitted that the Appellant was nominated to the CoC by the erstwhile management of the Corporate Debtor and had access to the said list and at no stage did the Appellant raise any objection to such quantum of dues submitted by Respondent No. 2. xii) It was further submitted that main purpose of the IA before NCLT and the Appeal thereof was to delay the proceedings of resolution. The CoC had approved the resolution plan on 13.03.2023 and immediately thereafter the said IA was filed by the Appellant. xiii) It was submitted that Respondent No. 2 is a Statutory Entity and functions under the control and supervision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 22, 2008. The balance OTS amount shall be paid on or before 31st March 2009. 14.4 We also note that Point G of the settlement letter is relevant which reads as under : G ) Additional terms conditions : The OTS will also be subject to the additional terms and conditions as mentioned in the Annexure-1. 14.5 We note that while the OTS letter has been annexed with the Appeal, the said annexure has not been supplied by the Appellant. The said annexure has been supplied by the Respondent No. 2 in their submission dated 06.02.2024. The clause 2 of the said annexure, which is also part of the OTS as per clause (G) cited supra gives the right to SUUTI to revoke the OTS package, reverse the waiver of dues and restore the original liabilities in case of default in payment. The relevant clause is reproduced below for reference: 2) In the event of default, in making the payments as per the Settlement or dishonour of any cheque, we shall have the right to revoke the above OTS package, reverse the waiver of dues and restore the liabilities as per the original Agreement/Documents. In case of our exercising the right of revocation, the OTS package sanctioned as above shall be treated as withd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers came to the exchanged to arrive at a One Time Settlement but the same could not be achieved. 14.12 The very fact that Corporate Debtor had submitted another OTS proposal on 30.01.2018 acknowledges that the earlier OTS was revoked. 14.13 The Respondent No. 2 had revoked the OTS vide letter dated 12.08.2009, which has been enclosed in its reply dated 18.08.2023. The letter is scanned below for ready reference : 14.14 It is further seen that Respondent No. 2 has been periodically writing to the Corporate Debtor regarding its updated dues. Copy of these letter dated 03.09.2013 giving outstanding as on 31.07.2013 of Rs. 144104.3/- lacs, letter dated 25.02.2014 giving outstanding as on 31.03.2014 of Rs. 143163.23/- lacs, letter dated 30.05.2014 giving outstanding as on 31.03.2014 of Rs. 163803.83/- lacs, letter dated 04.07.2014 giving outstanding as on 31.05.2014 of Rs. 169213.09/- lacs and letter dated 29.01.2015 giving outstanding as on 31.12.2014 of Rs. 189420.62/- lacs. The copy of letter dated 29.01.2015 is scanned below for ready reference : 14.15 From the documents available on record it is clear that the OTS of 2008 was revoked on 12th August, 2009 and thereafter Respondent N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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