TaxTMI 
TaxTMI 
2022 (6) TMI 542
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.... of the Appellant. The Adjudicating Authority vide the impugned order was pleased to dismiss the Company Application being IA No. 1327 of 2020 filed by the Appellant and partly allowed the Company Application being IA No. 661 of 2020 filed by the Appellant. 2. The Appellant has sought the following relief: (a) Set aside the direction of the Ld. Adjudicating Authority (in paragraph 17 & 20 of the order dated 30.04.2021) passed vide impugned order dated 30.04.2021 qua levying of interest @ 12% per annum upon the Appellant from the date it became due and payable as per the Resolution Plan and directing the Appellant to pay the same; (b) Direct the Respondent to take immediate steps and expedite removal of all attachments, liens, charges, encumbrances etc. from the assets of the Corporate Debtor. (c) Set aside the direction contained in the impugned order (paragraph 18) for fastening the liability to remove the attachment, lien, charge, encumbrance etc. over the assets of the Corporate Debtor upon the Appellant; (d) Pass order permitting the Appellant to make payment of the balance amount under the Resolution Plan within a period of 2 months from lifting/removing all the attac....
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.... pleased to allow the said application (M.A. No. 3977 of 2019) filed by the Respondent and carried out certain rectification in the order dated 26.11.2019. Accordingly, the time period mentioned in paragraph 18(g) of the order dated 26.11.2019 was revised to 3 months from the date of approval of the Resolution Plan by the Ld. Adjudicating Authority in place of 30 months as originally mentioned in the order dated 26.11.2019. The Appellant was never served with the copy of the MA No. 3977 of 2019. 11.02.2020 The Respondent sent to the Appellant a copy of the order dated 27.01.2020 when the Respondent was enquired about any further proceedings/orders passed by the Ld. Adjudicating Authority. 20.02.2020 Appellant was constrained to approach the Ld. Adjudicating Authority by filing an application being I.A. No. 661 of 2020 requesting the Ld. Adjudicating Authority to pass certain orders/directions including order that the time period mentioned in paragraph 18(g) of the order dated 25.11.2019 be reckoned from 27.01.2020 as the order dated 27.01.2020 was made available only on 11.02.2020. 20.02.2020 The arguments before the Ld. Adjudicating Authority on the aforesaid application (IA....
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....liens and it was the duty of the Resolution Professional Mr. Anil Kohli of Corporate Debtor to implement the plan and give the assets of the Corporate Debtor free from attachments, Liens, Charges, encumbrances. 6. The Applicant has also submitted that it will be a miscarriage of justice and take over the assets of the Corporate Debtor with the attachments, liens, encumbrances and take legal steps to remove them. The basic responsibility to implement this is on the Resolution Professional and hence the present Appeal. 7. The Appellant in this Appeal is also aggrieved with the Adjudicating Authority as it has allowed partly the Company Application being IA No. 661 of 2020 particularly the direction giving the Appellant to pay interest @ 12% p.a. from the date it became due and payable as per the Resolution Plan. 8. It was also submitted by the Ld. Sr. Counsel of the Appellant that payment of interest ordered to be paid by the Appellant is contrary to the terms of Resolution Plan and also contrary to the Magnate of the Code (IBC, 2016). 9. It was also submitted by the Ld. Sr. Counsel for the Appellant that there are charges on the properties of the Corporate Debtor amounting to Rs....
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...., charges, encumbrances, courts cases on the assets of the Corporate Debtor and uncertainty about the lifting of all such encumbrances etc. 15. Ld. Sr. Counsel of the Appellant went on to submit that the HDFC Bank which has agreed to fund Resolution Plan refused to fund due to existence of such attachments/encumbrances etc. HDFC Bank vide its letter dated 10.03.2020 also informed that the Appellants proposal for funding could be processed only after receipt of NOC from the MPID Court and ED etc. and that the charges on the property are satisfied. The Appellant vide IA No. 1327 of 2020 as stated above also highlighted all the problems of attachment of properties by ED, Mumbai under Prevention of Money Laundering Act and various Constitutional Courts etc. 16. It was also stated emphatically by the Ld. Sr. Counsel that the Resolution Plan approved by the order dated 26.11.2019 also granted liberty for filing Miscellaneous Application if required in connection with implementation of the Resolution Plan. 17. The record of reveals vide para 21 of the order dated 26.11.2019 as follows: "21. As far as question of waiver of outstanding statutory dues and other claims as on the date of ....
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....er dated 27.01.2020 in MA No. 3977 of 2019 and that's why time granted for making payment under the Resolution Plan was permitted to be reckoned from 27.01.2020 instead of 26.11.2019. (e) The Ld. Sr. Counsel for R-1/RP has also submitted that the Appellants stand to arrange funds keeping in mind 30 months time for making the payment is on the face of the Plan is wrong as the Resolution Plan itself an ambiguously mentions that the payment of balance amount will be made within three months from the approval of Resolution Plan by Adjudicating Authority. (f) The Appellant himself has signed the unconditional Letter of Intent dated 04.06.2019 issued pursuant to the approval of the Resolution Plan by the CoC, and therefore the Appellant is estopped in law from raising any condition precedent to make payment under the terms of the approved Resolution Plan. (g) Section 32(A) of the Code already provides relief to the Appellant qua the removal of attachments and consequential reliefs therein and the immunity granted to the Appellant, hence there is no infirmity on the order. "Manish Kumar v. Union of India & Anr. Writ Petition (C) No. 26 of 2020. 23. Ld. Sr. Counsel for the Responden....
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.... (b) It is also not in dispute that the Resolution Plan per se was not mentioning three months time period for releasing the balance payment from the date of the approval of the Resolution Plan. (c) The correction of the mistake apparent from record erupting in the impugned order of 30 months instead of 3 months and should also not be a bone of contention because typographical error is a part of human error and needs correction and so almost all the laws allow the same including the NCLT Rules 2016 (clause 154). Any clerical or arithmetical mistakes in any order of the tribunal or error arising from any accidental omission of slip may at any time can be corrected by the tribunal on its own motion. Hence, for such correction if notice has not been issued which is not an irregular activity or unenforceable activity. 25. It is no doubt a matter of concern that the CIRP which commenced on 22.12.2017 is still in litigation on one pretext or the other. Section 12 provides time limit for completion of Insolvency Resolution Process. For brevity and clarity, the same is reproduced below: Section 12: Time-limit for completion of Insolvency Resolution Process. "12. (1) Subject to sub-....
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....erial in its possession, reason to believe that he had abetted or conspired for the commission of the offence, and has submitted or filed a report or a complaint to the relevant statutory authority or court: Provided that if a prosecution had been instituted during the corporate insolvency resolution process against such corporate debtor, it shall stand discharged from the date of approval of the resolution plan subject to requirements of this sub-section having been fulfilled: Provided further that every person who was a "designated partner" as defined in clause (j) of section 2 of the Limited Liability Partnership Act, 2008 (6 of 2009), or an "officer who is in default", as defined in clause (60) of section 2 of the Companies Act, 2013, or was in any manner in charge of, or responsible to the corporate debtor for the conduct of its business or associated with the corporate debtor in any manner and who was directly or indirectly involved in the commission of such offence as per the report submitted or complaint filed by the investigating authority, shall continue to be liable to be prosecuted and punished for such an offence committed by the corporate debtor notwithstanding tha....
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.... of the Corporate Debtor prior to commencement of CIRP stand extinguished. 29. It is also necessary to extract from the Resolution Plan as available in the 'Appeal Paper Book' from pg. 158 to 159 that the Successful Resolution Applicant is supposed to get all the assets of the Corporate Debtor free from any encumbrances and would be available for use by the Resolution Applicant without any fetters or brevity and clarity. The Terms and Conditions appearing at pg. 158 to 159 is given below: "G. Terms and Conditions Shareholding The Ownership along with 100% shareholding without any interference of existing promoters/existing shareholders (individual as well as Corporate)/Financial Creditors shall be transferred to Resolution Applicant upon receipt of complete payment as per terms of the approved Resolution Plan. It will be responsibility of the Lenders to get the complete issued shareholding of the Corporate Debtor transferred in the name of Resolution Applicant including his nominee. Upon receipt of complete payment as per terms of the Resolution Plan entire shareholding of the Corporate Debtor shall vest with the Resolution Applicant i.e. the entire paid up share capital o....
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.... As per Information Memorandum, 17 matters are pending before various judicial forums (9 NSEL related matters+ 2 Central Excise related matters + 1 Enforcement Directorate+ 2 shareholders related matter+1 statutory Auditor related matter+ 2 Corporate Creditor related matter). There are two Income Tax related matters against the corporate debtor. The claims of two corporate creditors matter have been admitted by the Resolution Professional as per the Information Memorandum and are accordingly addressed in the Financial Proposal accompanied. Claims arising from the Operational Creditors are also addressed in the Financial Proposal. However, claims arising from other pending matters have not been crystallized and admitted by the Resolution Professional therefore no payment has been assigned towards them as a part of this Resolution Plan. The Adjudicating Authority under the Insolvency and Bankruptcy Code has wide powers and Section 238 of the Code providing the widest possible non obstante clause, makes is clear that the decision of the Hon'ble Adjudicating Authority under the code shall have effect notwithstanding any provision of another law which is inconsistent. Therefore, it ....
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....707 10,00,000 (c) It is submitted by the Resolution Professional that the net worth of the Resolution Applicant is around Rs. 30.29 Crore. The Resolution Applicant holds property worth Rs. 16.51 Crore. The Resolution Applicant intends to get the funding of the Resolution Plan from HDFC Bank Ltd. In support of the same, the Resolution Applicant has also furnished an Expression of Interest for funding issued by HDFC Bank Ltd. The Letter dated 14.01.2019 issued by HDFC Bank Ltd. For funding of loan of Rs. 77 Crore is annexed in the application. The RP further submits that the Resolution Applicant has already deposited a sum of Rs. 29.25 Crores (Rs. 10 Crore for EMD and Rs. 19.25 Crore as performance Security) i.e. 25% of the Resolution Amount. (d)The Resolution Applicant has sought a waiver of all outstanding statutory dues and other claims as on the date of approval of the Resolution Plan. Additionally, the Resolution Applicant has also sought waiver of all ascertained and contingent claim, dues, debts etc as on the date of approval of Resolution Plan. (f)The Resolution Plan also provides for a Monitoring Committee comprising of i. Resolution Professional, ii. Independent ....