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TMI Blog2024 (5) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Master Data of the Corporate Debtor in the records of the MCA, which has also been brought on record as Annexure-8 to the Additional Affidavit filed by the Resolution Professional. There are no substance in the submission of learned counsel on behalf of the Ex-Director of the Corporate Debtor that company having been struck off on 29.10.2019 the entire proceedings of the IBC need to be set aside. Company owed financial liability to the Financial Creditor and on default committed by the Corporate Debtor, Section 7 application was filed. The liabilities of the company cannot be simply washed out by action of company of non-compliance of the provisions of Companies Act, non-filing of the relevant financial documents and other filings. If the submission is accepted of the Appellant that proceeding could not have been proceeded, the easiest thing for a company would be to get struck off to wash of its all liabilities, which submission cannot be accepted. Non-acceptance of claims filed post-approval of the Resolution Plan - claims were filed after the Committee of Creditors (CoC) had already approved the Resolution Plan - HELD THAT:- The Tribunal upheld the Resolution Professional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor. Aggrieved by the order approving the Resolution Plan, there Appeals have been filed. 3. We need to first notice the brief facts of the case giving rise to these appeals: Company Appeal (AT) (Ins.) No.72 of 2024 (i) An application was filed for initiation of CIRP against the Corporate Debtor on 19.07.2019. The application under Section 7 was filed by the Financial Creditor - Easy Trip Planners Limited claiming default of Rs.14,34,12,840/-. (ii) Notice was issued by Tribunal and the Corporate Debtor filed its reply opposing Section 7 application. One of the grounds taken in the reply was that Section 7 application has been filed against a non-existent company. It is submitted that the company has already been struck off by the Registrar of Companies vide its notice dated 29.10.2019. (iii) The Adjudicating Authority after hearing objection of the Corporate Debtor, by order dated 11.02.2022 admitted Section 7 application and appointed Ms. Maya Gupta as IRP. Ms. Maya Gupta was confirmed as Resolution Professional by order dated 29.03.2022. (iv) Form G was published by the Resolution Professional in response to which ACAIPL Investment and Financial Services Private Limited submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Corporate Debtor, hence, Resolution Plan ought not to have been approved. Learned counsel further submitted that after Film Investment Agreement dated 23.02.2018 entered between the Corporate Debtor and the Financial Creditor, there has been Settlement Agreement dated 18.06.2018 between the Financial Creditor, Corporate Debtor and Respondent No.3 herein i.e. Super Cassettes Industries Private Limited, under which the dues of the Corporate Debtor were to be paid by the Respondent No.3 - Super Cassettes Industries Private Limited. Hence, there was no debt due on the Corporate Debtor. Appellant has also referred to Tripartite Agreement dated 21.06.2018, on stamp paper signed by Corporate Debtor, Financial Creditor and Respondent No.3. 6. Shri Kunal Godhwani, learned counsel for the Resolution Professional refuting the submissions of learned counsel for the Appellant submits that the Corporate Debtor in Section 7 application has raised objection regarding Corporate Debtor having been struck off from the list of Registrar of Companies, which objection was overruled by the Adjudicating Authority by passing order of admission dated 11.02.2022, which order was never challenged by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmitted as they had filed the claim much after approval of the Resolution Plan by the Committee of Creditors on 04.11.2022. Hence, the claim has rightly not been accepted. It is submitted that Pooja Entertainment Films Ltd. has also filed an application being I.A. No.4047 of 2023 seeking direction for admitting claim, which application was rejected by order dated 16.08.2023, which order has not been challenged and has become final. 9. We have considered the submissions of learned counsel for the parties and perused the record. 10. We may first notice the submission of Mr. Amar Dave, learned senior counsel that the Corporate Debtor having struck off on 29.10.2019 from the Register maintained by Registrar of Companies, the entire proceeding of CIRP against the Corporate Debtor is void and deserve to be set aside. Learned counsel for the Appellant has also referred to Notice of Striking Off and Dissolution dated 29.10.2019, Annexure-6 to the appeal, which was published in pursuance of Sub-section (5) of Section 248 of the Companies Act, 2013. It is submitted that there is provision in the Companies Act, 2013 for revival of struck off company and no proceeding was initiated for revival ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 1 in its capacity as chairperson of the Monitoring Committee which was formed for implementation of the Resolution Plan, issued a letter to the Registrar of Companies requesting for the restoration of the name of the Corporate Debtor in pursuance to the approval of the Resolution Plan approved vide order dated 12.10.2023. Copy of Letter dated 18.01.2024 is annexed herewith and marked as ANNEXURE R-4. 13. Subsequently, Respondent No. 1 in pursuance of the same, filed Form No. INC-28 with the Registrar of Company. Copy of Form No. INC-28 along with receipt is annexed herewith and marked as ANNEXURE R-5. 14. The Respondent No. 1 also filed Form No. GNL-2 for placing on record the requisite application for the restoration of the Corporate Debtor as per the approved Resolution Plan along with Form No. DIR- 12 placing on record the details of the newly appointed management. Copy of Form No. GNL-2 along with receipt is annexed herewith and marked as ANNEXURE R-6. Copy of Form No. DIR-12 along with receipt is annexed herewith and marked as ANNEXURE R-7. 15. Subsequently, the Registrar of Companies in view of the request made by Respondent No. I restored the name of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erusal of the ROC record indicates that last Balance Sheet was filed by the Company on 21.03.2016 and it appears that due to reason of non-filing of relevant balance sheet and other records, the company was struck off. 14. Now we may notice the submission of the Appellant that under the Settlement letter dated 18.06.2018 and Tripartite Agreement dated 21.06.2018, the liability of the Corporate Debtor was to be discharged by Respondent No.3 - Super Cassettes Industries Private Limited. Copy of letters have been brought on the record by the Appellant which indicate that letter dated 18.06.2018 was written to Super Cassettes Industries Private Limited signed by Protima Arora on behalf of the Corporate Debtor, Mr. Bhushan Kumar on behalf of Super Cassettes Industries Private Limited as well as by Mr. Nishant Pitti on behalf of Easy Trip Planners Pvt. Ltd. The letter dated 18.06.2018 is as follows: Date: 18 June 2018 To Super Cassettes industries Pvt Ltd. E-21/6, White House, Darya Ganj, New Delhi Dear Mr. Bhushan Kumar, This has reference to our Settlement Deed dated 14 June 2018 between Kriarj Entertainment Pvt. Ltd. (Kriarj) and Super Cassettes Industries Pvt Ltd (T-series) wherein T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Limited Anr. b. CS (Comm.) No. 919 of 2018, titled as Easy Trip Planners Private Limited Vs Super Cassettes Industries Private Limited Anr. c. FAO (OS) (Comm.) No. 122 of 2018, titled as Kriarj Entertainment Private Limited Vs Super Cassettes Industries Private Limited. Further, the Parties undertake that they shall abide by the terms of the settlement arrived between them. 16. Appellant himself has brought on the record notice/ letter dated 23.06.2018 which was sent to the Super Cassettes Industries Private Limited on behalf of Easy Trip Planners Pvt. Ltd. The notice take objection to various steps taken by the parties and the fact the parties have not abided by the Agreement dated 21.06.2018. It was clearly mentioned that all the understanding between the parties would stand nullified. Paras 7, 8 and 9 of the said notice are as follows: 7. However, it is surprising to note that within 24 hours of the withdrawal of the Said Appeal and within a few days of entering into of the Said Settlement, Our Client has become aware of actions being taken by you, the Addressee, which are clearly in contradiction to the specific terms of the Said Settlement. It has come to the knowledge of O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in approving the Resolution Plan has been given paramount status. We may refer to the judgment of Hon ble Supreme Court in K. Sashidhar vs. Indian Overseas Bank and Ors. (2019) 12 SCC 150. In para 59 following has been held: 59. In our view, neither the adjudicating authority (NCLT) nor the appellate authority (NCLAT) has been endowed with the jurisdiction to reverse the commercial wisdom of the dissenting financial creditors and that too on the specious ground that it is only an opinion of the minority financial creditors. The fact that substantial or majority per cent of financial creditors have accorded approval to the resolution plan would be of no avail, unless the approval is by a vote of not less than 75% (after amendment of 2018 w.e.f. 6-6-2018, 66%) of voting share of the financial creditors. To put it differently, the action of liquidation process postulated in Chapter III of the I B Code, is avoidable, only if approval of the resolution plan is by a vote of not less than 75% (as in October 2017) of voting share of the financial creditors. Conversely, the legislative intent is to uphold the opinion or hypothesis of the minority dissenting financial creditors. That must pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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