TaxTMI 
TaxTMI 
2021 (6) TMI 495
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....for upholding and continuing the applicant/GNIDA as 'Financial Creditor' and for participation in a meeting of committee of creditors. c) Quash and set aside the all actions/decisions/plan taken by the IRP/Resolution Professional and Committee of Creditors against the applicant/GNIDA and allow the applicant to participate in all the proceedings as Financial Creditor. d) In exercise of the powers under Section 98, 204 and 208 and all other applicable provisions of the IBC, 2016, direct replacement of the present Resolution Professional Mr. Dinesh Chandra Agarwal and direct further action against the said Resolution Professional for his misconduct and deliberately not informing and allowing to participate in COC and allegedly and deliberately not considering the status of the applicant GNIDA as financial creditor, without adjudication, reasons and justification, resulting in financial loss to a Govt. Authority GNIDA and dealing with the owner of the land to its detriment and resulting in unlawful financial gain to the corporate debtor and other creditor at the expenses of the applicant. 2. Another Interlocutory application bearing No. IA/727/2021 is also ....
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.... setting up an Urban and Industrial Township. ii. Further, the applicant had handed over the possession of the said plot of land to the Corporate Debtor through a Lease Deed, on deferred payment, which is to be made in instalments and is interest bearing. And the Corporate Debtor has been developing a sport city according to the building plan approved by the applicant over the said plot. iii. Further, the applicant itself is the Financial Creditor of the Corporate Debtor and has a higher charge/preference in relation to any other Financial Creditor. That neither the subleased plot nor any plot owned or standing in the name of Corporate Debtor can be the subject matter of any resolution, where applicant is not acknowledged as the Financial Creditor and a member of the Committee of Creditors. No Resolution Plan can be proposed or alone finalized without the consent of the applicant as per rule and taking into account that being the owner of the land, no orders can be passed to its detriment since the premium payable towards the lease is outstanding and is interest bearing. iv. Further, there is a breach and violation of the terms and conditions of the regis....
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....orate Debtor did not deposit the amount due and the applicant-Authority through letter dated 13.09.2019 issued the Recovery Certificate (RC) for recovery of total amount of Rs. 11,78,27,929/- as on 30.06.2017. x. Further, in response to the Recovery Certificate, the then District Magistrate, District-Gautam Budh Nagar, through its letter no. 565/CRRA/2019-20 dated 21.11.2019 informed that the Tribunal vide its orders dated 18.07.2018 has appointed IRP in M/s. Maple Realcon Pvt. Ltd. and further informed that the property of Corporate Debtor - Maple Realcon Pvt. Ltd. has been taken over by the IRP and therefore, the demand letter/recovery certificate could not be executed and the same was returned to the applicant-Authority in the original order. xi. Further, the applicant - Authority/GNIDA had submitted the proof of claim of Rs. 17,31,22,891/- being the Financial Creditor to Mr. Dinesh Kumar Agarwal, Interim Resolution Professional (IRP) on 06.02.2020. But the said IRP neither adjudicated and considered the claim of the applicant as Financial Creditor nor made any communication to the applicant to participate in the meeting of the CoC. He also did not inform that ....
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....edings, for which the applicant-Authority was entitled under law. ii. That the order dated 20.02.2020 was not only passed in absence of the applicant but also without impleading the applicant as a necessary party or without providing a copy of the CA-1596/ND/2019 in (IB)-496(ND)/2018. iii. That the Hon'ble Allahabad High Court in the case of Central Bureau of Investigation Vs. State of UP & another 2016 (92) ACC 613 has held that a distinction has to be made between review and recall and an order passed, without affording any opportunity to a party to be heard, can be recalled, even in criminal proceedings, as the same does not amount to review. The same has also been held by the Hon'ble Supreme Court in the case of New India Insurance Company Ltd. Vs. Krishna Kumar Pandey in Crl. Appeal No. 1852 of 2019. That the Hon'ble Supreme Court in a catena of judgments has held that no individual should be condemned unheard and full opportunity should be granted to every party to defend himself by taking legal assistance and putting forth his legal and factual submissions in the matter before the Hon'ble Court. In the present case, the applicant-Authority h....
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....ady been delayed due to the COVID-19 pandemic and as per the revised effective date 25.12.2020, the construction should start within one month. The delay in sanction of the building plan will delay the resolution plan affecting stakeholders." v. Further, the Applicant was well aware of the initiation of CIRP on the corporate debtor. From a bare reading of the Para No. 13 on Page 10 of the application, it is apparently clear that the Applicant was aware of the initiation of CIRP before the Approval of Resolution plan. vi. Further, the Applicant herein has also concealed the letter dated 01.11.2019 addressed to the CEO Greater Noida Authority, Gautam Budh Nagar with subject line "Pendency of the Corporate Insolvency Resolution Process in the matter of Bindal Merchandise Vs. Maple Realcon Pvt. Ltd., IB-496(ND)/2018; Admission order dated 18-07-2018". The Ex-Director of the Corporate Debtor, Maple Realcon Pvt. Ltd. vide abovesaid letter has informed GNIDA that since the CIRP is pending against the Corporate Debtor, all Civil Proceeding/Recovery/Proceeding at the behest of GNIDA are required to be kept in abeyance till the pendency of CIRP. vii. Further, the p....
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....porate Debtor and the Resolution Applicant proposes to pay 10% of this Operational Debt in 24 equal instalments. 10. He further submitted that since the application for approval of the Resolution Plan was heard in the absence of the applicant, who is the Financial Creditor, as per the order passed by the Hon'ble NCLAT in Company Appeal (Insolvency) (AT) No. 775/2019 in the matter of Sunil Kumar Aggarwal Vs. New Okhla Industrial Development Authority & Ors., the same may be recalled or set aside. 11. He further submitted that in view of that decision of the Hon'ble NCLAT, the applicant being the financial creditor has right to participate in the meeting of the CoC and in their absence, any decision taken by the Adjudicating Authority is liable to be set aside. 12. He also placed reliance upon the decisions of Hon'ble Allahabad High and Hon'ble Supreme Court referred Supra. 13. He further submitted that this Adjudicating Authority is not empowered to proceed ex-parte. 14. On the other hand, Ld. Counsel for the RP raised all the facts mentioned in his reply and further submitted that the applicant has not come with clean hands. Rather, they have conceale....
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..... Therefore, the first point for consideration is that whether in the absence of any power of review provided under the IBC, this Adjudicating Authority is empowered to recall the order or set aside the order by which the Resolution Plan was approved? Second point for consideration is that once the Resolution Plan is approved by the CoC as well as by the Adjudicating Authority then, in such a case, Whether the law permits to give a direction to the RP to consider the claim filed by any of the creditors either financial or operational? 23. At first, we consider the power of the Adjudicating Authority. Although there is no provision for review under the IBC but Section 420 of the Companies Act, 2013 deals with a provision to rectify any mistake apparent from the record and the said provision is quoted below:- 420. (1) The Tribunal may, after giving the parties to any proceeding before it, a reasonable opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Tribunal may, at any time within two years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it, and shall make such....
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....assed by the Adjudicating Authority and therefore, we are unable to accept the prayer of the applicant to recall or set aside the order dated 20.02.2020 and all the orders passed in this proceeding. 29. Now, coming to the second point - once the Resolution Plan has been approved by the CoC as well as the Adjudicating Authority, then in such a case, whether the law permits the Adjudicating Authority to give a direction to the RP to consider the claim filed by any of the creditors either financial or operational. 30. At this juncture, we refer to the decision of Hon'ble Supreme Court, on which RP has placed reliance, in the matter of Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta & Ors. Supreme Court (Supra) in which the Hon'ble Supreme Court held that:- "A successful resolution applicant 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 popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who successfully take over the business of the corporate debtor" and it was further held that "All claims ....
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....deration of the resolution applicant as also of the Committee of Creditors. In the very scheme of the corporate insolvency resolution process, a resolution applicant cannot be expected to make a provision in relation to any creditor or depositor who has failed to make a claim within the time stipulated and the extended time as permitted by Regulation 12. In Essar Steel (supra), while dealing with the topic Extinguishment of Personal Guarantees and Undecided Claims, this Court disapproved that part of the NCLT judgment which held that other claims, that might exist apart from those decided on merits by the resolution professional and by the Adjudicating Authority/Appellate Tribunal, could be decided in an appropriate forum in terms of Section 60(6) of the Code. This Court specifically held that a resolution applicant cannot be made to suddenly encounter undecided claims after resolution plan submitted by him has been accepted; and in the scheme of the Code, all claims must be submitted to, and decided by, the resolution professional so that the resolution applicant could proceed on a fresh plate. This Court, inter alia, held as under-: 107. For the same reason, the impugned....