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TMI Blog2024 (10) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... ant neither objected nor challenged the Resolution Plan at any time till date. Besides, it is trite that once the Resolution Plan is formally approved by the NCLT, any other remaining claims etc. would be deemed to have extinguished. This has been succinctly but authoritatively laid down by the Supreme Court in Ghanashyam Mishra [ 2021 (4) TMI 613 - SUPREME COURT ]. The appellant appears to have let the claim get extinguished without a protest or demur. Merely because the waiver was not allowed by the NCLT while approving the Resolution Plan would not, ipso facto, resurrect the right of claim. In the opinion of this Court, the right of the appellant to the claim is clearly extinguished post approval of Resolution Plan. To that extent, the reliance on Greater Noida Industrial Development Authority [ 2024 (2) TMI 681 - SUPREME COURT (LB) ] would not enure to the benefit of the appellant. In that case, the aggrieved person had infact challenged the Resolution Plan itself whereas, in the present case, the appellant let the claim get extinguished by its own apathy. In the case of Greater Noida Industrial Development Authority, the Supreme Court was considering a dispute similar to the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essional challenged the appellant s decision to terminate the Coal Mine Agreement before the National Company Law Tribunal (for short NCLT ), which was dismissed by the order dated 7th February, 2023 passed in IA (IB) No. 15/CB/2022. Thereafter, an appeal was preferred before the National Company Law Appellate Tribunal (for short NCLAT ) wherein interim order dated 24th January, 2022 was restored thereby staying the operation of the Termination Order. 4. In the meanwhile, the NCLT, Cuttack Bench initiated Corporate Insolvency Resolution Process (for short CIRP ) against the respondent at the behest of Indian Bank on 20th September, 2021. The Resolution Professional notified the onset of CIRP and invited claims from the public through publication in the newspaper Business Standard on 23rd September, 2021. The appellant submitted two claims to the Resolution Professional, (a) Form C dated 4th October, 2021 as a Financial Creditor in respect of the claim of Rs. 92,25,20,000/- towards the PBG, and (b) the incremental fixed cost of Rs. 9,21,44,029/-, which was due towards the prior allottee of the Ardhagram coal mine. 5. On 6th January, 2022, the Authorized Representative of Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was whether the respondent was liable for the alleged dues, thereby ascertaining its eligibility to participate in the coal mine auctions. Vide impugned judgement dated 26th July, 2024, learned Single Judge had set aside the decision of the appellant dated 22nd May, 2024 disqualifying the respondent from participating in coal mine auctions until outstanding dues are cleared, and held that the respondent cannot be held accountable for liabilities that have been legally extinguished and that under the scheme of the IBC, the respondent is entitled to proceed on the principle of clean slate . 10. Aggrieved by such decision, present appeal has been preferred by the appellant. CONTENTIONS OF THE APPELLANT:- 11. Mr. Kirtiman Singh, learned counsel appearing for the appellant at the outset adumbrated background facts leading to the lis. According to him, the learned Single Judge has grossly overlooked the fact that the claims of the appellant were neither adjudicated upon nor rejected, and are still alive. Thus, allowing the writ petition of the respondent predicating the same as if, once the Resolution Plan was approved by the NCLT, all previous claims are subsumed therein, is erroneous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unconditionally confirmed and undertook that the said Plan would not be conditional on any reliefs, waivers and concessions and that the said Plan would remain unaffected even if any relief, waiver or concession is not granted by the NCLT. In conjunction therewith, he referred to sub-para 30 of para 13 of the said Resolution Plan wherein, the respondent prayed for waiver of compensation of Rs. 9.21 crores and Rs. 92.25 crores due and pending towards the appellant. He stated that this waiver was specifically denied by the NCLT in the order dated 20th March, 2023 approving the Resolution Plan. He vehemently contended that it is apparent that the claims were still alive and actionable as demonstrated above. Thus, on this count too, according to him, learned Single Judge could not have allowed the writ petition. 14. Apart from the above, learned counsel for the appellant further submitted that even assuming, though without admitting, that the claim is considered to be barred for any reason whatsoever, it is only the right to claim that would get extinguished and not the claim itself. In this context, he contended that the respondent would still be liable for the claimed amount. If that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding (i) assets over which the corporate debtor has ownership rights which may be located in a foreign country; (ii) assets that may or may not be in possession of the corporate debtor; (iii) tangible assets, whether movable or immovable; (iv) intangible assets including intellectual property; (v) securities including shares held in any subsidiary of the corporate debtor, financial instruments, insurance policies; (vi) assets subject to the determination of ownership by a court or authority; (g) to perform such other duties as may be specified by the Board. Explanation . For the purposes of this section, the term assets shall not include the following, namely (a) assets owned by a third party in possession of the corporate debtor held under trust or under contractual arrangements including bailment; (b) assets of any Indian or foreign subsidiary of the corporate debtor; and (c) such other assets as may be notified by the Central Government in consultation with any financial sector regulator. (ii) Greater Noida Industrial Development Authority vs. Prabhjit Singh Soni, (2024) 6 SCC 767 The resolution plan did not meet the requirements of Section 30 (2) IBC read with Regulations 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that what cannot be done directly cannot be done indirectly, as observed and applied in the decision reported as JT 2009 (10) SC 645 Subhash Chandra v. Delhi Subordinate Services Selection Board, has no application on the subject at hand, for the reason it is settled law that where the bar of limitation prevents a person from suing to recover the amount due, it does not mean that the amount ceases to be due. The right remains unaffected. Only the remedy is barred. If the lessor has a demand with respect to a property, before the lessor is compelled to relinquish its title and convey free-hold tenure, the lessor would be permitted to insist that dues payable to it must be cleared. 16. In view of the above, learned counsel for the appellant stated that the impugned judgement may be set aside. CONTENTIONS OF THE RESPONDENT:- 17. Appearing for the respondent/OCL Iron and Steel Limited, Mr. Sandeep Sethi, learned senior counsel supported the reasons and rationale expressed in the impugned judgement. He contended that the claim of the appellant in the capacity of Financial Creditor already stood rejected vide communication dated 6th January, 2022 and despite the opportunity provided to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Resolution Plan. Undeniably, this claim was calculated at Rs. 49,262/- representing 0.051% of the admitted amount and disbursed by the Resolution Applicant on 3rd May, 2023. As per the records, this transaction had failed and the said amount was finally remitted into the account only on 26th March, 2024. Thus, so far as this claim is concerned, it is settled. 22. The entire controversy revolves around the claim of Rs.92.25 crores of the appellant arising out of termination of the Agreement due to non-renewal of the PBG, which consequently lead to disability to forfeit the said PBG furnished by the Corporate Debtor. It is this amount that forms the claim, which according to the appellant, still survives. The appellant had submitted this claim with the Resolution Professional as a Financial Creditor . The Resolution Professional after examining the said claim, had returned the same to the appellant advising it to file the same not as a Financial Creditor but in the appropriate Form. It is not denied by the appellant that the claim was not re-submitted with the Resolution Professional thereafter under the CIRP Regulations, 2016. However, the submission addressed on this aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 that is permitted, the very calculations on the basis of which the resolution applicant submits its plans would go haywire and the plan would be unworkable. 25. Except for a bald statement or an argument that the waiver sought by the Resolution Applicant against the said claim was denied by the NCLT, the appellant has failed to indicate as to what steps were taken by it to resur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at case, the aggrieved person therein challenged the Resolution Plan itself and the Supreme Court held that the form in which the claim was submitted with the Resolution Professional is inconsequential so long as a proper claim is laid. It further held that what needed to be considered respecting such claim is, whether it deserved to form part of the Resolution Plan. In the present case, though the appellant did submit the claim at hand, yet did not re-submit the same after it was returned. In other words, once the claim was returned, there was no substantive claim to be included in the Resolution Plan in the absence of re-submission of the said claim. Thus, it is not the lack of form which is of relevance in the present case, but the lack of a claim itself that would render the ratio inapplicable to the present case. This is also clear from the undeniable fact that the other claim submitted by the appellant simultaneously, was not only included in the Resolution Plan, but was also duly apportioned and disbursed to the appellant. 29. In Jor Bagh Asscn. Regd. (supra), a co-ordinate bench of this Court was considering the dues payable by the lessee to the lessor which were claimed to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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