9911796707
TMI Blog2024 (10) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... n 23.03.2023 i.e., after more than 2 years and not immediately after 17.02.2021, the Appellant could not response properly on this pointed query. Thus, it is noted that there was no plausible reason for the Appellant to explain his conduct of filing such belated claims after 30 months of the public notice. It is noted that the Appellant stated that his claims are to be treated at par with land revenue dues and the CIRP proceeding was initiated only in 2018. For this query of this Appellate Tribunal, no specific answer could be furnished by the Appellant to elaborate action taken by the Appellant in realising its dues even prior to initiation of the CIRP. We have already noted in previous paragraphs that even the claims were filed by the Appellant after 30 months of the CIRP. The issue of the stamp duty was indeed provided in the Resolution Plan in the ambit of the Code and the same was considered by the CoC exercising their commercial wisdom and finally the Resolution Plan was approved by the Adjudicating Authority. The Resolution Plan was approved by the Adjudicating Authority by vide Impugned order dated 12.10.2023 and it is seen that the total claims which was filed were of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Company Petition No. 133 of 2012 regarding demerger of the relevant companies. 6 .The Appellant pointed out that the Stamp Duty accrued as a result of demerger of Asia Motors Works Ltd. being transferor company and AMW Motors Ltd. being the transferee No. 1 company and AMW Autocomponent Ltd. being the transferee No. 2 company. 7. Giving the background of the case, the Appellant bought out that he filed an Interlocutory Application bearing I.A. No. 1092 of 2023 before the Adjudicating Authority in CP (IB) No. 185 of 2019 seeking declaration to the effect that claim of the Appellant being in the nature of Stamp Duty and cannot be ignored by the Resolution Professional only on the ground that the applicant authorities have filed their claim at the belated stage. The Appellant pleaded that I.A. No. 1092 of 2023 is pending adjudication before the Adjudicating Authority since it was not considered by the Adjudicating Authority on 12.10.2023 despite being brought to the notice of the Adjudicating Authority. 8. It is the allegation of the Appellant that although the fact was brought to the notice of the Adjudicating Authority regarding his demand of Rs. 15,38,79,179/-, however the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .The Appellant submitted that the Appellant in exercise of powers under Section 39(1)(b) r/w Section 33 of the Gujarat Stamp Act, 1958 issued notice dated 22.01.2021 for recovering of the stamp amount along with penalty and for initiating proceedings for impounding the documents in question and in reply the Resolution Professional vide letter dated 17.02.2021 intimated the Appellant about initiation of the CIRP Proceedings. 17 .It is a case of the Appellant that he was informed first time by the Respondent only vide letter dated 17.02.2021 and no previous communication was served upon him. 18 .The Appellant stated that the Appellant vide order dated 20.10.2021 passed an order imposing stamp duty with penalty and also created a charge on the property in question in the revenue record. 19 .The Appellant submitted that in response to public advertisement dated 03.09.2020, the Appellant filed their claims in the statutory form on 23.03.2023, however, the Resolution Professional did not consider the claims filed by the Appellant. 20 .It is the case of the Appellant that the Impugned Order dated 12.10.2023 is illegal as the Adjudicating Authority failed to consider the fact that the deme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment dues would fall within the terms of Secured Creditors in Section 3(30) and Section 3(31) of the Code. 27 .At this stage, we will look into the relevant section of the Code referred by the Appellant, which reads as under :- 3. Definitions. (30) secured creditor means a creditor in favour of whom security interest is created; (31) security interest means right, title or interest or a claim to property, created in favour of, or provided for a secured creditor by a transaction which secures payment or performance of an obligation and includes mortgage, charge, hypothecation, assignment and encumbrance or any other agreement or arrangement securing payment or performance of any obligation of any person: Provided that security interest shall not include a performance guarantee; (Emphasis Supplied) 28 .The Appellant also cited judgement of Hon ble Supreme Court of India in the case Hindustant Lever and Ors. Vs. State of Maharashtra [(2004) (9) SCC 438] whereby the Hon ble Supreme Court held that payment of stamp duty is mandatory required. 29 .The Appellant further referred to the judgment of Hon ble Supreme Court of India in the matter of Uttar Pradesh Ors. Vs. Raja Mohammad Amir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a delay of almost more than one year and four months even in filing I.A. before the Adjudicating Authority. 37 .It is the case of the Responded that the Resolution Plan was approved by the Adjudicating Authority on 12.10.2023 and the approved Resolution Plan provided payment of Rs. 2.65 Crores towards land payment and stamp duty. 38 .The Respondent submitted that the present appeal is premature and not maintainable in view of pending I.A. No. 1092 of 2023 filed by the Appellant before the Adjudicating Authority. The Respondent highlighted various issues taken in IA No. 1092 of 2023 filed by the Appellant like dues of the Appellant would fall within the purview of Section 3(6) of the Code, applicability of Rainbow Paper (Supra) , the claims of the Appellant cannot be rejected only because of delay and not informing the Appellant by the Resolution Professional prior to letter dated 17.02.2021. The Respondent submitted that similar issue have been raised in the present appeal before this Appellate Tribunal, hence, the appeal is premature and not maintainable. 39 .The Respondent pleaded that due to such inordinate delay which has not been explained by the Appellant, the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Stamp Duty Payments shall mean and include all payments to be paid to the stamp authorities or Governmental Authorities in respect of the Corporate Debtor Lands, including: (a)Amount of Rs. 5,53,64,009/- (Rupees five crore fifty- three, lakhs sixty four thousand and nine only) on the AMWL Demerger Scheme as per the Adjudication Order the Collector and Additional Superintendent of Stamps (Gujarat) dated July 29, 2013; (b)Penalty of 15% p.a. levied as per the order of the Collector and Additional Superintendent of Stamps, Gandhinagar dated July 29, 2013; (c)Any other stamp duty and penalties levied by any Governmental Authority or Person in respect of the Corporate Debtor Lands. 44 .The Respondent stated that once the Resolution Professional is approved by the Adjudicating Authority the remaining claims gets extinguishes based on several judgement of the Hon ble Supreme Court of India, especially in the matter of Committee of Creditors of Essar Steel India Limited through Authorised Signatory v. Satish Kumar Gupta , [(2020) 8 SCC 531] and Ghanshyam Mishra and Sons v. Edelweiss Asset Reconstruction Company Limited, (2021) 9 SCC 657 . The Respondent submitted that the Plan Approval O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the demerger claim was approved by Hon ble Gujarat High Court way back in 2012 and accordingly stamp duty was concluded. We also note that the Corporate Debtor sought an opinion from the relevant stamp duty authority who gave the opinion on 29.07.2013. 53 .In this regard one more query was raised to the Appellant as to what action they have taken to recover their money since, 2012 and why the Appellant allowed such inordinate delay since 2012 for non collection or non realization of stamp duty. We note that the Appellant stated that his claims are to be treated at par with land revenue dues and the CIRP proceeding was initiated only in 2018. For this query of this Appellate Tribunal, no specific answer could be furnished by the Appellant to elaborate action taken by the Appellant in realising its dues even prior to initiation of the CIRP. We have already noted in previous paragraphs that even the claims were filed by the Appellant after 30 months of the CIRP. 54. At this stage, we would like to take into consideration the relevant portion of the approved Resolution Plan which deals with the Stamp Duty payment which reads as under:- Section 3.4.4 of the Successful Resolution Pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired. (Emphasis Supplied) 55 .From above it is clear that issue of the stamp duty was indeed provided in the Resolution Plan in the ambit of the Code and the same was considered by the CoC exercising their commercial wisdom and finally the Resolution Plan was approved by the Adjudicating Authority. 56 .The Appellant has taken the plea that his claim cannot be barred under Section 14 of the Code as the demerger was sanction in the year 2012. In this regard, we would like to look into the provisions of Section 14 of the Code which reads as under ;- 14. Moratorium. (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely: - (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law, tribunal, arbitration panel or other authority; (b)transferring, encumbering, alienating or disposing off by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in para 7 of the Impugned Order, the Adjudicating Authority had discussed the issue regarding claims of the Stamp Authority. This reads as under :- 7. It is further noted that an affidavit as regards to the eligibility of the resolution applicant under Section 29A of the IB Code along with the undertaking of the resolution applicant to this effect has been filed. We have also perused the contents of the resolution plan, we are of the view that Regulations 36 to 39 of CIRP Regulations, 2016 have been complied with. We further noted that the resolution plan complies with all requirements under Section 30(2)(b) of the IB Code. The Resolution Plan has addressed the issue related to Paschim Gujarat Vij Company Ltd (IA - 10) on which orders of the Tribunal are pending and the claim of the Stamp Authority of Gujarat. It seems that interest of all stakeholders are taken care of . We also find that the resolution plan addresses the cause for failure and also contains measures to run the Corporate Debtor in future and that the resolution plan is both feasible and viable as held by CoC and it also contains provisions for its effective implementation. There is no reason to reject the resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot suddenly be faced with undecided claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head pop ping up which would throw into uncertainty amounts payable by a prospective resolution applicant who would successfully take over the business of the corporate debtor... . (Emphasis Supplied) 66 .Similarly, in Ghanshyam Mishra (Supra) , the Hon ble Supreme Court of India held that: 93..... 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 subsection (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 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 that is permitted, the very calculations on the basis of which the resolution applicant submits its plans, would go hay ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
