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TMI Blog2024 (8) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... solution Plan has not been supplied in full to the plaintiff. 4. On a query from this Court on whether any such requisition was made by the plaintiff to the defendant or its counsel, the learned counsel for the plaintiff fairly admits that no such requisition was made since last date of hearing. 5. Accordingly, in my view, documents that are required for a proper adjudication of IA no. 2769/2022, filed by the defendant, are supplied to the plaintiff. In any case, the plaintiff has also not made any effort to obtain a copy of the Resolution Plan from the NCLT. 6. The application is, therefore, disposed of. IA 2769/2022 7. Though this application has been filed under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908, (in short, 'CPC'), praying for dismissal of the instant Suit, the defendant has also sought to invoke the inherent powers of this Court under Section 151 of the CPC, stating that in view of the subsequent developments, the Suit no longer survives for adjudication. 8. The defendant contends that the State Bank of India, being the lead bank, had filed a Company Petition, bearing no. CP (IB) 48/2017, before the learned National Company Law Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance on the judgment of the Supreme Court in Ghanashyam Mishra AND Sons Pvt. Ltd through the Authorised signatory v. Edelweiss Asset Reconstruction Company Ltd. through the Director & Ors., (2021) 9 SCC 657. 14. The learned counsel for the defendant further submits that the successful Resolution Applicant company has already paid its dues in respect of all the admitted claims of the creditors in terms of the Resolution Plan and the plan stands fully implemented. SUBMISSIONS OF THE LEARNED COUNSEL FOR THE PLAINTIFF: 15. On the other hand, the learned counsel for the plaintiff, placing reliance on the Order dated 08.03.2019 passed by the NCLT in the above mentioned Company Petition, submits that paragraph 28 thereof provides that the approval of the Resolution plan does not make automatic waiver or abatement of any legal proceedings which are pending by or against the defendant company /Corporate Debtor as those are the subject matter of the concerned competent authorities having their proper/own jurisdiction to pass any appropriate Order, as the case may be. 16. She submits that the learned NCLT also clarified that the Resolution Plan shall be subject to various existing laws an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r than (i) employees and workmen who have been dealt with separately under Section 3.4 below; and (ii) the dues owed by the Company to certain Operational Creditors (to each of whom the Company, as on the Insolvency Commencement Date, owes up to Rs. 3,00,000 (Rupees Three Lakhs) and whose details are set out in Annexure 9)), which aggregates to Rs. 4,83,47,321 (Rupees Four Crores Eighty Three Lakhs Forty Seven Thousand Three Hundred Twenty One) shall remain NIL, and shall not increase. Pursuant to the foregoing, the Company shall have no Liability towards any Operational Creditors with regard to any claims (as defined under the IBC) relating in any manner to the period prior to the Closing Date. All such Liabilities shall immediately, irrevocably and unconditionally stand fully and finally discharged and settled, with there being no further claims whatsoever, and all forms of security created or suffered to exist, or rights to create such a security, to secure any obligations towards the Operational Creditors (whether by way of guarantee, bank guarantee, letters of credit or otherwise) shall immediately, irrevocably and unconditionally stand released and discharged, and the Opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b Judice Claims shall be deemed to be owed and due as of the Closing Date, the liquidation value of which is NIL and therefore, no amount is payable in relation thereto. Pursuant to the foregoing, any and all legal proceedings (including any notice, show cause, adjudication proceedings, assessment proceedings, regulatory orders, etc.) initiated before any forum by or on behalf of any Operational Creditor to enforce any rights or claims against the Company shall immediately, irrevocably and unconditionally stand withdrawn, abated, settled and/or extinguished, and the Operational Creditors shall deem to have taken all necessary steps to ensure the same. The Operational Creditors of the Company shall have no further rights or claims against the Company (including but not limited to, in relation to any past breaches by the Company), in respect of the period prior to the Closing Date, and all such claims shall immediately, irrevocably and unconditionally stand extinguished. xxxxxxxxx 3.3.6. Failure to Submit Claims or Rejected Claims (i) The Resolution Professional had issued a public notice dated July 19, 2017 in accordance with the IBC, inviting all creditors of the Company to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the Closing Date, and the Company shall have no Liabilities in respect of such claim(s). Provided however any rights or claims of the Financial Creditors with respect to Existing Promoter Guarantees can continue against such guarantors. 3.3.7. No action by Operational Creditors Pending the occurrence of the Closing Date, no Operational Creditor shall be entitled to take, initiate or continue any steps or proceedings against the Company or its assets whether by way of demand, legal proceedings, alternative determination process, the levying of distress, in any jurisdiction whatsoever for the purpose of obtaining payment of any Liability, or for the purpose of placing the Company into liquidation or any analogous proceedings." (Emphasis supplied) 20. A reading of the above Clauses would show that the claims of Operational Creditors that were sub judice as on the closing date were treated to qualify as 'Operational Debt' and it was prescribed that the liquidation value of the same shall be Nil. It was further prescribed that failure to submit claims would result in all such obligations and liabilities of the company, whether disputed or undisputed, and all legal proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncipal objects of the I&B Code is providing for revival of the corporate debtor and to make it a going concern. The I&B Code is a complete Code in itself. Upon admission of petition under Section 7 there are various important duties and functions entrusted to RP and CoC. RP is required to issue a publication inviting claims from all the stakeholders. He is required to collate the said information and submit necessary details in the information memorandum. The resolution applicants submit their plans on the basis of the details provided in the information memorandum. The resolution plans undergo deep scrutiny by RP as well as CoC. In the negotiations that may be held between CoC and the resolution applicant, various modifications may be made so as to ensure that while paying part of the dues of financial creditors as well as operational 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 aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a liquidation order has been passed, no suit or other legal proceeding shall be instituted by or against the corporate debtor: Provided that a suit or other legal proceeding may be instituted by the liquidator, on behalf of the corporate debtor, with the prior approval of the Adjudicating Authority." 26. The above provision applies where a liquidation order has been passed against the Corporate Debtor. This is not the case herein. Therefore, the said Judgment cannot come to the aid of the plaintiff herein. 27. The Supreme Court in Shipping Corporation of India Ltd. v. Machado Bros. & Ors., (2004) 11 SCC 168, while examining the powers of Courts under Section 151 of the CPC to dismiss a pending Suit as having become infructuous because of a subsequent event, held as under: "22. While examining this question we will have to consider whether the court can take cognizance of a subsequent event to decide whether the pending suit should be disposed of or kept alive. If so, can a defendant make an application under Section 151 CPC for dismissing the pending suit on the ground the said suit has lost its cause of action. This Court in the case of Pasupuleti Venkateswarlu v. Motor & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal proceeding has become infructuous, ex-debito justitiae, it will be the duty of the court to take such action as is necessary in the interest of justice, which includes disposing of infructuous litigation. For the said purpose it will be open to the parties concerned to make an application under Section 151 CPC to bring to the notice of the court the facts and circumstances which have made the pending litigation infructuous. Of course, when such an application is made, the court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not." (Emphasis Supplied) 28. This Court in Rajan Gupta v. Pradeep Kumar Gupta & Ors., 2023:DHC:1408, while relying on the law laid down in Shipping Corporation (supra), held that though the provisions of Order VII Rule 11 of the CPC may not apply on the facts of the case, however, the Court has ample power under Section 151 of the CPC to dismiss the Suit as having been rendered infructuous due to a subsequent development because of which relief claimed in the Suit cannot be granted. In my opinion, this Suit would be a fit case for the Court to exercise its powers under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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