TaxTMI 
TaxTMI 
2023 (12) TMI 257
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....1.11.2022 submitted by 'Ramkrishna Forgings Limited'. The Adjudicating Authority by the impugned order has approved the Resolution Plan, aggrieved by which order, this Appeal has been filed. 2. Initially the Appeal was filed by 'Thekedaar Kramchari Committee', an unregistered union and IA No.5182 of 2023 has been filed for amending the memo of parties by substituting the Appellant/Union with five Appellants as mentioned in Annexure-2 of the IA. In the ends of justice, we allow IA No.5182 of 2023 and substitute the Appellant Nos.1 to 5 as mentioned in Annexure-2 of the IA. 3. The Appellants' case is that they are workers engaged by sub-contractor and in the Resolution Plan, the claims submitted on behalf of sub-contracted workers have been accepted only to the extent of 8% whereas workmen of the Corporate Debtor have been proposed payment of 100% of their claim. 4. We have heard Shri Abhijit Sinha, Learned Counsel for the Appellants and Shri Krishnendu Datta, Learned Senior Counsel for the Resolution Professional. 5. Shri Abhijit Sinha, Learned Counsel for the Appellants submits that the Appellants who were workers employed through sub-contractor have been working in the....
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....or has been committed by the Adjudicating Authority in approving the Resolution Plan submitted by Resolution Applicant on the basis of collated and admitted claims of Operational Creditor. Total claim of the Operational Creditors was admitted which was under the category "other than workmen, employees and government dues". The Appellant cannot claim parity with workmen's claim as dealt in the Resolution Plan. The claim received in the CIRP has to be treated in accordance with IBC and CIRP Regulations, 2016. 7. We have considered the submissions of the Counsel for the parties and perused the record. 8. None of the Appellants in this Appeal have filed any claim in the CIRP of the Corporate Debtor. Appellants' claim to be workers of the sub-contractor and according to the Appellant sub-contractor has filed the claim on their behalf in the CIRP of the Corporate Debtor as operational debt. The Appellant in the Appeal has brought on record copy of the claims submitted by the sub-contractor. We may notice only one claim submitted in Form-B by one Mr. Sukhwinder Singh who claimed to be proprietor. Claim submitted in Form B dated 11.03.2022 is as follows:- "FORM B PR....
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....LIST OF DOCUMENTS ATTACHED TO THIS PROOF OF CLAIM IN ORDER TO PROVE THE EXISTENCE AND NON-PAYMENT OF CLAIM DUE TO THE OPERATIONAL CREDITOR PAN CARD, AADHAR CARD, CANCIL CHEQUE, ANNEXURE-I Signature of operational creditor or person authorised to act on his behalf [Please enclose the authority if this is being submitted on behalf of an Operational Creditor] Name in BLOCK LETTERS SUKHWINDER SINGH Position with or in relation to creditor Proprietor Address of person signing *PAN number, passport, AADHAAR Card or the identity card issued by the Election Commission of India" 9. The above Form clearly indicate that the claim has been filed by the Operational Creditor, by a vendor. The claim was submitted as operational creditor. The Resolution Professional has admitted the claim of various Vendors as operational creditors and the said claims were dealt in the Resolution Plan as Operational Creditors. Appellant who never submitted any claim before the Resolution Professional claiming to be workmen cannot be allowed to contend at this stage that they are workmen and they should be paid at par with the workmen of the Corporate Debtor for amount ....
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.... treatment of such operational debt cannot be faulted on the anvil of Section 53 of the IBC. Section 53 itself provides different treatment in distribution of assets where workmen dues are dealt in Section 53(1)(b) and operational debt at much lower ladder. The Resolution Plan has also similarly dealt with workmen dues differently from operational debt and the admitted workmen dues and admitted operational debt cannot be faulted in the Resolution Plan. 13. In the Resolution Plan where paragraph 7.33 notices distribution of claims provided in the approved Resolution Plan is as follows:- "7.33. That the distribution of claims provided in the approved Resolution Plan is provided hereinunder:- Sr. No. Category of Creditors Amount Claimed Amount Admitted Amount Provided under the Resolution Plan Amount Provided to the Amount Claimed (%) 1. Financial Creditors 1,68,39,69,450 168,36,81,352 1,11,24,40,394 66% 2. Operational Creditors (Government Dues) 43,21,78,653 18,72,42,052 8,22,90,131 19% 3. Operational Creditors (Employees) 9,41,16,803 9,27,71,650 1,41,17,535 15% 4. Operational Creditors (Workmen) 1....
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....ith the interests of operational creditors, which is not the same thing as saying that they must be paid the same amount of their debt proportionately. Also, the fact that the operational creditors are given priority in payment over all financial creditors does not lead to the conclusion that such payment must necessarily be the same recovery percentage as financial creditors. So long as the provisions of the Code and the Regulations have been met, it is the commercial wisdom of the requisite majority of the Committee of Creditors which is to negotiate and accept a resolution plan, which may involve differential payment to different classes of creditors, together with negotiating with a prospective resolution applicant for better or different terms which may also involve differences in distribution of amounts between different classes of creditors. 90. Under Regulation 39(4), the compliance certificate of the resolution professional as to the CIRP being successful is contained in Form H to the Regulations. This statutory form, in Paras 6 and 7, states as under: "6. The Resolution Plan includes a statement under Regulation 38(1-A) of the CIRP Regulations as to how ....