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TMI Blog2024 (12) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... dues owed are not part of the Resolution Plan, they shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval under Section 31 can be continued. The resolution process is over as the Resolution Plan has been approved by the NCLT on 5th March 2020. The order of the NCLAT dated 6th July 2023 referred to by the learned Counsel for the Respondent also records that the Resolution Plan was finally approved on 5th March 2020 and while rejecting the application filed by the Applicant herein under Section 60 (5) and Section 9 of the IBC on the ground that the same was filed after expiry of several months from the date of the Resolution Plan approved by the Adjudicating Authority observed that the same was also approved by the Appellate Tribunal, of course with a liberty to either of the parties to pursue legal remedy in accordance with law. The order of the NCLAT has not been challenged any further by the Applicant. It would also not be necessary for an operational creditor of the nature of an Applicant, to be shown separately as a Decree holder or dealt with any differently although a Decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecured creditor, the Execution Application cannot be said to be infructuous. Mr. Sen draws this Court s attention to the definition of Creditor in Section 3 (10) of the IBC in support of his contention. Mr. Sen relies upon the decision of the Tripura High Court in the case of Sri Subhankar Bhowmik vs. Union of India and Another WP(C)(PIL)No.04/2022 decided on 14th March 2022. 4. Mr. Sen, learned Senior Counsel, further submits that, therefore, although the decision in the case of Ghanshyam Mishra and Sons Private Limited, Through the Authorised Signatory vs. Edelweiss Asset Reconstruction Company Limited , Through the Director and Others (2021) 9 Supreme Court Cases 657 lays down that once a Resolution Plan is duly approved by the Adjudicating Authority under Section 31 (1) of the IBC, the claims as provided in the Resolution Plan stand frozen and binding on all the creditors, however, since a Decree holder forms a separate class as defined under the IBC and paragraph 27 of the order of the NCLT only refers to financial creditors, operational creditors and the CIRP cost but does not refer to the Decree holder, this Court, therefore, after considering the approved Resolution Plan de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.1 and 102.3 of the decision in the case of Ghanshyam Mishra and Sons Private Limited, Through the Authorised Signatory vs. Edelweiss Asset Reconstruction Company Limited, Through the Director and Others (supra) in support of his contention. Learned Counsel submits that the said decision of the Hon'ble Supreme Court, while clearly recognizing a Decree holder as a creditor, holds that an operational creditor is a person to whom an operational debt is owed. Learned Counsel submits that in paragraph 97 of the said decision, operational debt has been defined to mean a claim in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and in the facts of this case, the debt owed to the Applicant is clearly an operational debt. Mr. Cama submits that once a Resolution Plan is duly approved by the Adjudicating Authority under Section 31 (1), the claims provided in the Resolution Plan stand frozen and are binding on the corporate debtor as well as the creditors and that all claims which are not part of the Resolution Plan are to stand extinguished and no person is entitled to institut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid to different categories of stakeholders is as follows : Stakeholder Admitted claim Payment as per plan Timing of payment Financial Creditors INR 3,056.96 Crores INR 650 Crores Within 30 days of effective date (i.e approval of plan by AA and satisfaction of the conditions precedent) Operational Creditors (other than workmen and employees and MMB) INR 26.36 Crore (Excluding MMB) Nil - Operational Creditors (MMB) INR 15.10 Crores INR 11.38 Crores Within 30 days of effective date Operational Creditors (Workmen and employee dues) INR 0.02 Crores As per provisions of IBC (as amended) As per provisions of IBC (as amended) CIRP Cost NA To be paid in full In priority to other payments 15. It is clear from the aforesaid that operational creditors except workmen, employees and MMB are to receive NIL payment as per the Resolution Plan although some of the claims are admitted. 16. Section 3 (10) of the IBC defines a Creditor as under : 3 (10) creditor means any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree-holder; 17. As observed by the Hon ble Tripura High Court in the case of Sri Subhank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claims or dues can neither be initiated nor be continued. This Execution Application is one such proceeding. 18. It is pertinent here to refer to paragraph 97 of the decision in the case of Ghanshyam Mishra and Sons Private Limited, Through the Authorised Signatory vs. Edelweiss Asset Reconstruction Company Limited, Through the Director and Others (supra) which is usefully quoted as under : 97. Creditor therefore has been defined to mean any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree-holder . Operational Creditor has been defined to mean a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred. Operation debt has been defined to mean a claim in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority. 19. As can be seen that even the Hon'ble Supreme Court has considered that a Decree holder has been included as a creditor i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra), although the said approach in that case was in the facts of that case in respect of government or statutory dues. 23. It would also, therefore, not be necessary, in my view, for an operational creditor of the nature of an Applicant, to be shown separately as a Decree holder or dealt with any differently although a Decree holder undisputedly is a separate class of creditor. 24. Further, in my view, paragraphs 44, 45 and 46 of the order approving the Resolution Plan cannot therefore come in the way of the finality of the Resolution Plan. And even while it cannot be denied that merely because the Resolution Plan has been approved, it does not confer any general power to the Resolution Applicant absolving him of liability of the corporate debtor company without knowing about the liability against which such exemption is sought and that, the reliefs / exemptions from only existing liabilities which are specifically identified can be sought and allowed in the Resolution Plan, admittedly, a specific claim had been lodged by the Applicant and as can be seen from paragraph 27 of the said order, the payment as per the plan for operational creditors other than MMB and employees / workme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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