AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2021 (12) TMI 851
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....s representation for waiving the demand raised against it by virtue of the Resolution Plan approved by the National Company Law Tribunal (NCLT), Cuttack Bench, Cuttack by its order dated 30th January, 2020. A consequential direction sought is to the Opposite Parties to refund the imposed sum of Rs. 12,02,28,202/- paid by the Petitioner under protest or adjust it against the dues payable by the Petitioner to the Opposite Parties. 2. Initially, when the matter was heard on 24th August, 2020 the Court passed the following order: "Heard Mr. Abhinav Vasisht, learned Senior Counsel along with Sri S.K. Acharya, learned counsel for the petitioner and Mr. P.K. Muduli, learned Additional Government Advocate for the State-opposite parties by Video Conferencing mode. Mr. Abhinav Vasisht, learned Senior Counsel for the petitioner submits that in view of Sections 5(21), 30, 31 and 238 of the Insolvency and Bankruptcy Code, 2016; the Director of Mines would be obliged in law to issue Mining Dues Clearance Certificate (MDCC) to the petitioner by taking the earlier dues as 'Nil', considering that the resolution plan has been approved by the NCLT. Mr. P.K. Muduli, learned Additional Government su....
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.... to such renewal have been scrutinized by a letter dated 10th June, 2020, Opposite Party No.3 informed the FACOR that it has not furnished a valid MDCC which was a condition precedent for renewal of the trading licence. Accordingly, on 16th June, 2020 FACOR applied to Opposite Party No.2 for the MDCC. 8. FACOR underwent a Corporate Insolvency Resolution Proceedings (CIRP) which commenced by an order dated 6th July, 2017 passed by the NCLT, Kolkata Bench in an application under Section 7 of the Insolvency and Bankruptcy Code, 2017 (IBC). 9. A CIRP was conducted and finally a Resolution Plan (RP) was submitted by Sterlite and Power Transmission Ltd. (SPTL). This was in turn approved by the Committee of Creditors (CoC) of FACOR on 14th November, 2019. Thereafter, it was approved by the NCLT Cuttack Bench on 30th January, 2020. The Approved RP (ARP) provided for extinguishment of all claims demands liabilities/obligations/score payable to any operational creditors (including any State or Central Government authority) by FACOR for the period prior to the plan effective date which is the date on which the NCLT accepted and approved the RP submitted by the STPL. 10. The case of FACOR i....
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....etitioner "will be in complete violation of the Orders passed by the Hon'ble Supreme Court from time to time in WP (C) No.114 of 2014." Accordingly, FACOR's application dated 16th June, 2020 for MDCC was rejected. Pleadings in the petition 14. FACOR filed an additional affidavit dated 8th September, 2020 seeking to place on record the letter dated 26th August, 2020 written by it to the Joint Director, Mines for reactivation of its access to the online portal. It also placed on record copy of the written submissions filed on 4th September, 2020 before the Opposite Party No.2 and letter dated 5th September, 2020 addressed to the Joint Director, Mines in relation to the regularization of the online services on the i3MS portal. 15. On the same date, a counter affidavit was filed by the Opposite Party contending inter alia that by virtue of the order passed on 2nd August 2017 by the Supreme Court of India in Common Cause v. Union of India (2017) 9 SCC 499, the State Government had no option but to raise a demand of Rs. 10,79,07,355/- against FACOR towards penalty under Section 21(5) of the Mines and Minerals (Development and Regulation) Act, 1947 (MMDR Act). It is, contended that....
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....ecting the Petitioner to obtain the MDCC for further action on renewal of the Trading License of the Petitioner. It is humbly submitted that there would have been no occasion for the Opposite Party No.3 to direct the Petitioner to "obtain the MDCC from the Directorate of Mines, Odisha, Bhubaneswar....", had the Petitioner uploaded an MDCC on the I3MS portal. It is further submitted that the acknowledgement of Online Form B dated 28 May 2020 issued on the I3MS portal is a digitally signed automated computer-generated receipt. In light thereof, the Opposite Parties' contention that the Petitioner uploaded an invalid or incorrect MDCC is belied by the said automated receipt issued by the I3MS portal, which also bears the signature of the Opposite Party No.3." 19. The sum of Rs. 215,92,02,538/- stated to be owing by the FACOR is explained as relating to a period prior to the 'plan effective date' and therefore, standing extinguished by order of the NCLT. 20. A reply has been filed to the rejoinder affidavit by the State. This is actually a reiteration of all the contentions made earlier. Thee relevant portion thereof reads as under: "Neither the Resolution Professional n....
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....P are relevant: "Clause 3(g) (ii): Accordingly, all claims or demands made by, or liabilities or obligations owned or payable to or assessed by, the Government Authorities including but not limited to the Central government, the State Governments, any regulatory or local authority or body or any agency or instrumentality thereof, in relation to any taxes, including all such dues, duties, direct or indirect, penalties, fees, interest, fines, levies, cesses, assessments or additions or any other charges or payments whatsoever (including without limitations or liabilities set out in the IM, ongoing material litigations as set out in Annexure 3 of this ..., known or unknown secured or unsecured, disputed or undisputed present or future, whether or not set out in the IM, the balance sheets of the Company or the profit and loss account statements of the Company or the List of Creditors, in relation to any period prior to the Plan Effective Date or arising on account of the acquisition of control by the Applicant over the Company pursuant to this Resolution Plan, will be written off in full and will be deemed to be a permanently extinguished by virtue of the order of the NCLT approvin....
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....any or the Applicant or SPV shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto and no action will be taken in respect of the Company or its assets or business pursuant to the same. Clause 3(e) (vi) "any and all rights and entitlements of any actual or potential third party, whether admitted or not, due or contingent, asserted or unasserted, crystallized or uncrystallized, known or unknown, disputed or undisputed, present or future, in relation to any period prior to the Plan Effective Date or arising on account of the acquisition of control by the Applicant over the Company pursuant to this Resolution Plan, shall be deemed to be permanently extinguished by virtue of the order of the NCLT approving this resolution Plan and the Company or the Applicant or SPV shall at no point of time, directly or indirectly have any obligation, liability or duty in relation thereto. Clause 3(o)(v): "...the Applicant and the Company shall have no responsibility or liability in respect of any claims against the Company attributable to the period prior to the Plan Effective Date or arising on account of the acquisition of control by the Applican....
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..... This the successful resolution applicant does on a fresh slate, as has been pointed out by us hereinabove." 27. At this juncture, it must be noted that Mr. Muduli, learned Additional Government Advocate (AGA) placed reliance on certain observations of the Supreme Court in Common Cause (supra), and in particular the directions issued in para 188 thereof and submitted that the liability arising out of the said judgment of the Supreme Court was equally binding on FACOR and that if the authorities do not proceed to recover the dues as indicated by the Supreme Court, they would be acting contrary to the decision of the Supreme Court. He also placed reliance on the decision in Union of India v. Association of Unified Telecom Service Providers of India (2020) 9 SCC 748, where the Supreme Court dealt with the issue whether on account of some of the telecom services providers being before the NCLT under the IBC, they could be exempted from the liability to pay the spectrum bills. There the Supreme Court has answered the question in negative. Reliance is also placed on the decision in BPL Ltd. v. R. Sudhakar (2004) 7 SCC 219. 28. This Court has considered the above submissions and in par....
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....ho do not vote in favour of the resolution plan, which also shall not be less than the amount to be paid to such creditors in accordance with sub section (1) of section 53 in the event of a liquidation of the Corporate Debtor. Explanation 1 to clause (b) of sub section (2) of Section 30 of the I&B Code clarifies for the removal of doubts, that a distribution in accordance with the provisions of the said clause shall be fair and equitable to such creditors. The resolution plan is also required to provide for the management of the affairs of the Corporate Debtor after approval of the resolution plan and also the implementation and supervision of the resolution plan. Clause (e) of subsection (2) of Section 30 of I&B Code also casts a duty on RP to examine, that the resolution plan does not contravene any of the provisions of the law for the time being in force. 60. Perusal of Section 29 of the I&B Code read with Regulation 36 of the Regulations would reveal, that it requires RP to prepare an information memorandum containing various details of the Corporate Debtor so that the resolution applicant submitting a plan is aware of the assets and liabilities of the Corporate Debtor, inclu....