TaxTMI 
TaxTMI 
2024 (1) TMI 733
X X X X Extracts X X X X
X X X X Extracts X X X X
....against Indu Projects Limited (Corporate Debtor) before the Adjudicating Authority (National Company Law Tribunal, Hyderabad Bench, Hyderabad, Court No. II) bearing CP (IB) No. 372/7/HDB/2018, which was admitted on 25.02.2019. Gopikrishna Byadigera was appointed as Interim Resolution Professional (in short 'IRP') but on the recommendation of the Committee of Creditors (in short 'CoC'), Anup Kumar Singh was appointed as Resolution Professional (in short 'RP') by the Adjudicating Authority on 04.06.2019. 2. The RP (Respondent No. 2) filed an application bearing I.A. No. 861 of 2020 under Section 31(1) of the Code r/w Regulation 39(4) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (in short 'Regulations') before the Adjudicating Authority for approval of the resolution plan of Earthin Projects Limited in consortium with K. Ramachandra Rao Transmission & Projects Pvt. Ltd. (Appellant herein), on the ground that the resolution plan submitted by the Appellant has been approved by the CoC through e-voting held on 04.09.2020 with 97.34 per cent votes. Vide order dated 01.10.2021, the Adjudicating Authority approved the resolution plan submitted by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....st' @ 8% per annum from 23.01.2022. It is abundantly made clear by this 'Tribunal' that the implementation of the 'Resolution Plan' can go on and the 'Monitoring Committee' is permitted to perform the act of 'partial disbursement' of 'Plan Amount'. Further, the 'Resolution Applicant' shall ensure the continuation of 'All Projects' by keeping the "Bank Guarantee Alive" and by making payment for the encashed 'Bank Guarantee'. In view of the above observations and directions, the impugned order in IA No.77 of 2022 in IA No.861 of 2020 in CP(IB)- 372/7/HDB/2018 passed on 01.03.2022 at Paragraph No.8, wherein the amount paid as 'Earnest Money Deposit' by the 'Applicant' shall have to be forfeited and proceedings under Section 74 (3) of the I&B Code, 2016 have to be initiated as per Law shall not hold good. In so far as the observations made by the 'Adjudicating Authority', ("National Company Law Tribunal", Hyderabad Bench) in the impugned order in IA No.77 of 2022 in IA No.861 of 2020 in CP(IB)-372/7/HDB/2018 are to the fact that "we are very upset with the manner in which the 'Monitoring Committee' has given a very very long rope to the Applicant in making the payment. We get a d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gned order in IA No. 77 of 2022 in IA No. 861 of 2020 in CP(IB)-372/7/HDB/2018 are to the fact that "we are very upset with the manner in which the 'Monitoring Committee' has given a very very long rope to the Applicant in making the payment. We get a doubt on the fairness of the 'Monitoring Committee' with regard to implementation of the Resolution Plan to that extent is expunged by this Tribunal in furtherance of 'substantial cause of justice'. Accordingly, the instant Company Appeal (AT)(CH)(Ins) No. 86/2022 stands disposed of. No costs. The pending connected I.A. Nos. 183 & 184/2022 are closed. Heard learned counsel for the parties. Pursuant to an order dated 25.02.2019 passed by the Adjudicating Authority (National Company Law Tribunal, Hyderabad) Corporate Insolvency Resolution Process (CIRP) was commenced against the Corporate Debtor, Indu Projects Limited. The Respondent No. 1, hereinafter referred to as the Resolution Applicant, had submitted a Resolution Plan in respect of the Corporate Debtor, in terms whereof the Respondent No. 1 was required to deposit Rs. 501 Crores in a designated escrow account, on or before 23.01.2022. On 21.01.2022, the Respondent No. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....become infructuous. The remedy, if any, as regards to extension of time, is before the NCLAT, as the time extended by NCLAT has already expired and the jurisdiction of this Adjudicating Authority gest ceased, once the issue is taken within the purview of the Appellate Authority. It can be noted that the reason for not extending the time as sought for by the SRA is due to his not fulfilling the commitment undertaken by him. Except seeking extension, no further grounds were put forth by the SRA in the earlier application. By virtue of the expiry of the period extended by the NCLAT, the SRA loses his right of seeking for extension on any ground. As regards, IA (IBC)/655/2022, within was filed by SRA seeking impleadment in the liquidation application, we notice that no such IA was filed by the RP for initiation of liquidation proceedings of the CD. As such, we do not find any reason to keep it pending. We, therefore, observe that filing of this IA is misplaced and is accordingly dismissed." 6. The Appellant challenged the order passed in I.A. No. 283 of 2022 by way of CA (AT) (Ins) No. 340 of 2022 before this Tribunal. This appeal was dismissed by this Tribunal vide its order date....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion Plan', Rs. 4531.44 crores were claimed by the 'Creditors' and out of which claim for Rs. 4138.5 crores were admitted and finally amount of Rs. 501 crores was proposed to be settled with the 'Creditors' as per approved 'Resolution Plan' and in addition Rs. 40 crores was to be infused as working capital thus, total amount of Rs. 541 crores was approved as amount of settlement. This 'Appellate Tribunal' also note from the 'Resolution Plan' approval dated 01.10.2021 that the fair value of the 'Corporate Debtor' was of Rs. 394.12 crores and the liquidation value was of Rs. 220.90 crores. 5. This 'Appellate Tribunal' further notes from the approved Resolution plan the definition of 'Effective Date - The date of approval of the Resolution Plan by the Adjudicating Authority'. Further, as per approved 'Resolution Plan' Clause 4 A "the total term of the 'Resolution Plan' for implementation shall be within 90 days from the effective date". 6. In terms of Clause 7 of the approved 'Resolution Plan', following additional term was specified whereby there was specific provision for interest payment on delayed payment and forfeiture of payment made in case default beyond 60 days. "The....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....2022 gave following orders:- "Heard both the sides. It is represented by Mr. Y. Suryanarayana, Learned Counsel for the Appellant that the 'Appellant' had deposited a sum of Rs.50 Crores in the 'Designated Account', which fact is not disputed by the other side. The 'Successful Resolution Applicant' although had addressed vide letter dated 12.04.2022 to the Resolution Professional, Monitoring Committee, Committee of Creditors in the matter of 'Indu Projects Ltd.' seeking 'six months' time to remit the 'residual balance amount' together with 'overdue interest' @ 8% per annum, this 'Tribunal' is granting 'three months' time from today, to pay the 'residual balance amount' in the 'Designated Account' along with 'overdue interest' @ 8% per annum from 23.01.2022. It is abundantly made clear by this 'Tribunal' that the implementation of the 'Resolution Plan' can go on and the 'Monitoring Committee' is permitted to perform the act of 'partial disbursement' of 'Plan Amount'. Further, the 'Resolution Applicant' shall ensure the continuation of 'All Projects' by keeping the "Bank Guarantee Alive" and by making payment for the encashed 'Bank Guarantee'. In view of the above observa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aid order, the Respondent No. 1 appealed to the NCLAT under Section 61 of the IBC. The impugned order has been passed in the said appeal. The Appellant, who as stated above, is an Operational Creditor contends that the impugned order is prejudicial to the right of the Appellant to receive the amounts payable to the Appellant under the approved Resolution Plan, within the timelines thereunder. Three months' time granted to the Resolution Applicant (Respondent No. 1) to pay the residual balance amount in the designated account along with overdue interest, has expired. No payment has been made. The appeal has, thus, become infructuous and is dismissed. The NCLT may proceed further with the matter, in accordance with law." [emphasis supplied] 12. The 1st Respondent approached the 'Adjudicating Authority' vide I.A. 283 of 2022 in CP (IB) No. 372/7/HDB/ 2018 wherein five prayers were made including dismissal of I.A. 77 of 2022 filed by the 'Appellant', allowing 1st Respondent to invoke EMD bank guarantee and extension of 'Corporate Insolvency Resolution Process' allowing fresh bids for the 'Resolution Plan' to be invited and debarring the 'Appellant' from participation further. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9;t find any reason to keep it pending. We, therefore, observe that filing of this IA is misplaced and is accordingly, dismissed." [emphasis supplied] 13. Aggrieved by the 'impugned order' in I.A. 283 of 2022, the 'Appellant' has preferred the present `Appeal', before this 'Appellate Tribunal'. Appellant's Submission 14. The Learned Counsel for the 'Appellant' gave overall view of the appeal and the circumstances which led to the present appeal. On coming to know that the 'Corporate Debtor' has been recommended for liquidation the Appellant approached 1st Respondent expressing his intent to give his resolution plan on 04.05.2020. After getting approval from the 'Adjudicating Authority' on an application made by 1st Respondent in his fresh Form- G published on 25.07.2020. The 'Appellant' submitted his Resolution Plan of Rs. 501 crores along with additional working capital of Rs. 40 crores. The 'Adjudicating Authority' vide their order dated 01.10.2021 approved the 'Resolution Plan' however the order of the 'Adjudicating Authority' was uploaded only on 25.10.2021. The Learned Counsel for the Appellant further submitted that he was under belief that this will be the effective....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or the Appellant stated that the 'Resolution Plan' was prepared, submitted and finally approved by the 'Adjudicating Authority' which was prepared by the 'Appellant' on the basis of incorrect "Information Memorandum". The Learned Counsel for the Appellant further stated that in order to set the things right and to take ex- promoter to logical task, the 'Appellant' filed I.A. No. 654 of 2022 in C.P (IB) 372 of 2018 (Direction Application) under Section 60(5) of the I & B Code, 2016 r/w Rule 11 of NCLT Rules, 2016, whereby he prayed for immediate interim relief including forensic audit and restraining expromoters from disposing off and transferring moveable and immovable assets during pendency of the applications. 20. The Learned Counsel for the Appellant stated that an impleadment application vide I.A. 655 of 2022 was also filed regarding granting of any relief in I.A. No. 283 of 2022 filed by the 'Respondent' without hearing the 'Appellant'. The Learned Counsel for the Appellant emphasised that these applications were necessary in order to implement the 'Resolution Plan'. The Learned Counsel for the Appellant, however assailed the 'impugned order' dated 05.09.2022 which was issu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... still make substantial payments. The Learned Counsel for the Respondent emphasised that out of Rs. 501 crores claim settlement amount along with additional working capital infusion, admittedly, the 'Appellant' has brought in only 10% of such money till date despite the 'Resolution Plan' was approved way back on 01.10.2021. The Learned Counsel for the Respondent further clarified that according to the approved 'Resolution Plan' the 'Appellant' was supposed to make all payments within 90 days and further maximum 60 days were provided in the 'Resolution Plan' @ 8% interest rate per annum for delayed payments and the terms of plan it was crystal clear that beyond 60 days of grace period, all payment made by the Appellant will be liable to be forfeited. 26. The Learned Counsel for the Respondent stated that the 'Appellant' has brought several I.A's before the 'Adjudicating Authority' just to delay the whole process and the 'impugned order' was given correctly by the Adjudicating Authority' after taking all due facts, provisions of the I & B Code, 2016 and this 'Appellate Tribunal' order dated 13.04.2022 into consideration. 27. The Learned Counsel for the Respondent assailed the c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sion Application') for seeking extension of timelines which was rightly dismissed by the 'Adjudicating Authority', since the 'Resolution Plan' was approved on 01.10.2021 and the 'Appellant' was supposed to make all payment within 90 days however that was a complete failure on part of the 'Appellant' to arrange fund and sought only long rope to delay the process. 30. The Learned Counsel for the Respondent further emphasised that the 'Appellant' was given all the cooperation to implement the 'Resolution Plan' successfully, however the 'Appellant' was not in a position to implement the same and accordingly the 1st Respondent had to approach the 'Adjudicating Authority' vide I.A. No. 283 of 2022 with prayer to dismiss I.A. no. 77 of 2022 along with permission of the Adjudicating Authority to invoke EMD bank guarantee furnished by the Appellant and to initiate fresh 'Corporate Insolvency Resolution Process' and the 'Adjudicating Authority' vide their order dated 05.09.2022 allowed the I.A. No. 283 of 2022 allowing initiation of fresh CIRP within 60 days as per 'Prayer- C' and 'Prayer- A & B' was not considered as not being pursued by the 1st Respondent. 31. The Learned Counsel for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ot the sufficient power to extend the time lines for making payments as per approved 'Resolution Plan' and if so, whether in the present case this power was exercised or otherwise by the 'Adjudicating Authority' correctly? * Before dwelling into these aspects in details, it will be desirable to look into the specific provision of the I & B Code, 2016 which deals with the submission of the 'Resolution Plan' as well as approval of the 'Resolution Plan'. "30. Submission of resolution plan.-(1) A resolution applicant may submit a resolution plan [along with an affidavit stating that he is eligible under section 29A] to the resolution professional prepared on the basis of the information memorandum. (2) The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan- (a) provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the [payment] of other debts of the corporate debtor; (b) provides for the [payment] of the debts of operational creditors in such manner as may be specified by the Board which shall not be less than the amount to be paid to the operational creditors ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....not submitted resolution plan as on the date of commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018.] (5) The resolution applicant may attend the meeting of the committee of creditors in which the resolution plan of the applicant is considered: Provided that the resolution applicant shall not have a right to vote at the meeting of the committee of creditors unless such resolution applicant is also a financial creditor. (6) The resolution professional shall submit the resolution plan as approved by the committee of creditors to the Adjudicating Authority." "31. Approval of resolution plan.-(1) If the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requirements as referred to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan: [Provided that the Adjudicating Authority shall, before passing an order for approval of resolution plan under this subsection, satisfy that the resoluti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uthority'. Further, as per approved 'Resolution Plan' Clause 4 A 'the total term of the 'Resolution Plan' for implementation shall be within 90 days from the effective date'. This Appellate Tribunal notes that order of the 'Adjudicating Authority' approving the resolution plan was dated 01.10.2022 and therefore, legally speaking 01.10.2022 should be constitute as effective date for calculating 90 days. The 'Appellant' has made a case that since the order of the 'Adjudicating Authority' was uploaded only on 25.10.2022 hence effective should be treated as 25.10.2022 and 90 days should be calculated from this date. The argument of the 'Appellant' cannot be accepted in view of the specific definition given of the effective date in the 'Resolution Plan' itself. * In terms of Clause 7 of the approved 'Resolution Plan', following additional term was specified whereby there was specific provision for interest payment on delayed payment and forfeiture of payment made in case default beyond 60 days. "The RA confirms that in case the RA fails to pay the balance instalments as mentioned in the Resolution Plan, and there is default beyond 60 days from schedule date, all the payments made ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Tribunal. This 'Appellate Tribunal' do not find any error in the 'impugned order' on this aspect. While observing this, this 'Appellate Tribunal' has also factored into the ratio provided by the Hon'ble Supreme Court of India that commercial wisdom of 'Committee of Creditor' is supreme and there is limited scope for judicial intervention by the 'Adjudicating Authority' or the 'Appellate Tribunal'. Hence, this 'Appellate Tribunal' upholds the decision of the 'Adjudicating Authority' on this issue. Issue No. (II) Whether the 'Adjudicating Authority' violated the principals of natural justice in the present case ? * It has been alleged by the 'Appellant' that the 'Adjudicating Authority' has not considered his 'Impleadment Application' bearing I.A. No. 655 of 2022 as well as 'Direction Application' bearing I.A. No. 654 of 2022 in suitable manner and the 'Appellant' was not given chance to represent the case. The 'Appellant' also contended that the 'Adjudicating Authority' ought to have decided 'Impleadment Application' being necessary an important party in I.A No. 283 of 2022 and the 'Adjudicating Authority' erred in disposing I.A. No. 283 of 2022 without disposing First Appel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uidation and the application of Appellant in I.A. No. 655 of 2022 is incorrect and accordingly was dismissed by the 'Adjudicating Authority'. * Taking into account the averments made by the both the parties and the reasons accorded by the 'Adjudicating Authority' while disposing relevant I.A. No. 654 & 655 of 2022, this Appellate Tribunal do not find any reason to intervene the 'impugned order' on this account. Issue No. (III) Whether the 'Adjudicating Authority' could have ordered for fresh Corporate Insolvency Resolution Process when the 'Successful Resolution Applicant' has claimed to be in position to implement the 'Resolution Plan', albeit beyond the schedule as stipulated in the 'Resolution Plan'? * This 'Appellate Tribunal' has already noted that in accordance with the approved 'Resolution Plan' the 'Appellant' was required to settle all payments within 90 days and further within 60 days. This 'Appellate Tribunal' has also factored into the fact that despite this 'Appellate Tribunal' extension of three months to make all payments, the 'Appellant' failed to satisfy the terms of the Resolution Plans. The 'Appellant' while submitting the 'Resolution Plan' was s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ibunal' order by the Hon'ble Supreme Court of India filed by one of the 'Operational Creditor' (and not the Appellant). As such, no further scope is available to this 'Appellate Tribunal' to invoke any of the provisions available under I & B Code, 2016, to give any further relief to the 'Appellant', at this juncture. 36. Therefore, this 'Appellate Tribunal', is of the considered opinion that there is no error, in the 'impugned order' dated 05.09.2022, passed by the 'Adjudicating Authority'. `Appeal', `devoid of any merit(s)', is dismissed. No costs. The connected pending `Interlocutory Applications', if any, are Closed. 7. It is stated that the order dated 25.11.2022 has been challenged before the Hon'ble Supreme court by way of Civil Appeal No. 1133 Of 2023 which has been withdrawn by the Appellant in which the following order was passed on 04.12.2023:- "Learned Counsel for the Appellant states that he has instruction to withdraw the present appeal. Secondly, all contentions should be left open. In view of the first statement, the appeal is dismissed as withdrawn. However, we do not make any comments or observations concerning the second request." 8. In the meantime, i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is pending. An order directing the RP to conduct a fresh CIRP is without any legal basis and this Tribunal could not have passed such an order. e. The RP has filed several applications, seeking extension of time for submission of the Resolution Plan and the same was extended. Thus the last date for completion of CIRP is 11.02.2023. f. The RP has filed the present application under Section 30 of the IBC, 2016, seeking approval of the Resolution Plan submitted by one of the bidders who has submitted an application for the resolution of the company, Indu Projects Limited, in pursuance of the fresh CIRP which has been initiated vide order dated 05.09.2022. The Applicant learnt that the CoC approved the Resolution Plan which was submitted for an amount of around Rs.400 Crores which is substantially lesser than the amount offered by the Applicant. Thus, the CoC is being forced to take a lesser amount in resolution even though, there is an availability of a better offer from the Applicant herein. RP has filed an IA No.305 of 2023, without impleading the Applicant herein, who is necessary and proper Party to the Application. g. In the above facts and circumstances, it is prayed to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d Others (2020) 11 SCC 467 has held that the commercial wisdom of CoC is supreme and neither the `Adjudicating Authority' nor the `Appellate Authority' can trespass the commercial wisdom of the `Committee of Creditors'. d. IA 305 of 2023 is filed for the approval of the new Resolution Plan. This Application herein has no locus standi to be part of the present proceedings as its role ended when it was unable to implement its Resolution Plan. Hence, this application is liable to be dismissed. 4. We heard both the Counsel. The Counsel for the Applicant submits that an Appeal is preferred against the order of the Hon'ble NCLAT before the Hon'ble Supreme Court. Hence, he seeks this Tribunal to keep this application pending. 5. It can be noted that the CIRP is time bound process. No interim order is granted by the Hon'ble Supreme Court, staying the proceedings in this IA. The prospects of success of the Resolution Applicant in the Hon'ble Supreme Court seems to be very bleak when looked at from the reasons mentioned in the order of the Hon'ble NCLAT. Apart from that, it can be seen that inspite of the time being extended, the Applicant could not implement the Plan. Hence, the Re....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... we find no locus for the applicant and we dismiss this application." 10. The Appellant also filed I.A. No. 1031 of 2023 in I.P No. 8 of 2023 in I.A. No. 305 of 2023 for recalling of the order dated 19.06.2023 which was also dismissed on 05.07.2023 which is reproduced as under:- "1. This application is filed by the Applicant M/s. Earthin Projects Ltd, seeking to recall the Order dated 19.06.2023 in IP No.8 of 2023 in IA No.305 of 2023 in CP No.372/HDB/2018 and to defer the hearing of IA No.305 of 2023, pending disposal of the instant application. 2. At the outset, the 2nd prayer can be dismissed, since the hearing on the application is already concluded and it is reserved for Orders. 3. As regards the first prayer, the Counsel submits that, in the order sought to be recalled, at Para No.7, it was recorded that; the Counsel for the Respondent relied on the judgement of the Hon'ble NCLAT in the case of Vasan Health Care Pvt. Ltd. wherein it was held: "Appellant being an Unsuccessful Resolution Applicant, has no `Locus', to `assail' a `Resolution Plan' or its `implementation', coupled with a candid fact that he is not a `Stakeholder', as per Section 31(1) of the I & B Cod....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntion that, this Tribunal has the power to recall its Order. 8. It can be seen that the Hon'ble NCLAT in the above mentioned judgement has held that, the judgements of the Hon'ble Supreme Court mentioned therein clearly lay down that there is a distinction between review and recall. It is held that the power to review is not conferred upon this Tribunal, but power to recall its judgement is inherent in this Tribunal, since inherent power of the Tribunal are preserved powers which are inherent in the Tribunal as has been declared by Rule 11 of the NCLAT Rules, 2016. It was also observed that power of recall is not power of the Tribunal to rehear the case to find out any apparent error in the judgment which is the scope of a review of the judgement. It was categorically held that the power to recall of a judgment can be exercised by this Tribunal, when any procedural error is committed in delivering the earlier judgement. Obviously, the error pointed is not a procedural error. But by relying on the 1st cited judgement rendered by the Hon'ble Supreme Court, he seeks for recall of the Order. 9. A look at the brief facts of the case as are necessary and relevant would be beneficia....
X X X X Extracts X X X X
X X X X Extracts X X X X
....this application. 13. Hence, seeing no merits in the application, we dismiss the application, but not without observing that it is a frivolous application. We refrain from imposing costs, which this application deserves, out of mere sympathy, that he already sustained loss with regard to his earnest money and by considering this application as a desperate move. This application IA 1031/2023 is accordingly dismissed and disposed of." 11. The Adjudicating Authority allowed I.A. No. 305/HDB/2023 on 05.07.2023 and approved the resolution plan submitted by Respondent No. 3 against which the present appeal has been filed. 12. In this appeal, stay was granted by this Tribunal on 14.07.2023 which is reproduced as under:- "The Bank of India (Financial Creditor) filed an Application under Section 7 of the Insolvency and Bankruptcy Code, 2016, (for short `The Code') against Indu Projects Ltd. (Corporate Debtor) before the NCLT Hyderabad to which C.P. (IB) No.372/HDB/2018 was assigned. The said Application was admitted on 25.02.2019, Corporate Insolvency Resolution Process (`CIRP') was initiated and Moratorium under Section 14 of the Code was also imposed. 2. The Appellant (`M/s. Ea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ated 19.06.2023, by which they had sought intervention in IA No.283/2022. However, the said Application was also dismissed by the Order of the same date i.e., 05.07.2023. 8. The Appellant has thus challenged both the Orders of 05.07.2023 by the present Appeal. 9. Counsel for the Appellant has submitted that once the Application under Section 7 was admitted and CIRP was initiated on 25.02.2019, as a necessary corollary, Order under Section 14 was also passed and Moratorium was imposed prohibiting all of the issues prescribed in Section 14(1) (a) & (d). It is submitted that when Order dated 01.10.2021 was passed then the Moratorium was lifted. It is further argued that the Order dated 01.10.2021 has not been recalled or set aside by any Court of law so far, therefore, in the presence of dated 01.10.2021, the second Order dated 05.07.2023 could not have been passed as there cannot be two Orders existing on record of allowing two separate Resolution Plans. 10. He has further argued that once the Moratorium was imposed on 25.02.2019 and lifted vide Order dated 01.10.2021 then it is required to be again imposed if it is to be lifted by virtue of the Order dated 05.07.2023 but th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er Notice. Till the next date of hearing the further proceedings shall remain stayed." 12. The Respondent No. 3 challenged the order dated 14.07.2023 before the Hon'ble Supreme Court vide Diary No. 39897 of 2023 which was disposed of vide its order dated 13.10.2023 which is reproduced as under:- "1 Delay condoned. 2 Mr Chander Uday Singh, senior counsel states that the order of stay which has been granted by the National Company Law Appellate Tribunal results in an abuse of process having due regard to the fact that the only basis for obtaining such a stay is that an appeal is pending before this Court arising out of a previous order. 3 Since the proceedings are still pending before the NCLAT, we are not expressing any view on the merits. However, we grant permission to the appellant to apply before the NCLAT for modification of the order of stay or for vacating the stay. 4 NCLAT may take up the application with all reasonable dispatch preferably within a period of two weeks from the date when the application for modification of the order of stay or for vacating the stay is filed. 5 The appeal is, accordingly, disposed of. 6 Pending applications, if any, stand....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er under Section 14 was passed which was lifted when the resolution plan of the Appellant was approved on 01.10.2021 and has not been imposed thereafter when the CIRP was again initiated in terms of the order passed in I.A. No. 283 of 2022. It is further submitted that the order dated 01.10.2021 passed in I.A. No. 861 of 2020 approving the resolution plan submitted by the Appellant has neither been recalled nor set aside by any Court of law, therefore, the order dated 01.10.2021 and 05.07.2023 could not have been passed as there cannot be two orders existing on record allowing two separate resolution plans. It is also submitted that while passing the order dated 01.10.2021, there was a legitimate expectation vested with the Appellant for implementation of the plan as they had undertaken to make the delayed payment with 8% interest but because of the order passed in I.A No. 283 of 2022 dismissing the application for impleadment, the Appellant could not bring all the facts to the notice of the Court. It is further submitted that the appeal at the instance of the Appellant has been filed as the Appellant is an aggrieved person, which is a sine qua non, for the purpose of invoking Sect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n and directed the RP to forfeit the EMD. It is further submitted that the order was challenged by way of appeal i.e. CA (AT) (Ins) No. 86 of 2022 in which three months' time was granted from 13.04.2023 to pay the amount as per the resolution plan alongwith interest @ 8 % from 23.01.2022. The said time expired on 12.07.2022 but the Appellant did not make any payment, therefore, despite sufficient opportunity, the Appellant consistently failed to adhere to the timelines granted by the Tribunal and by operation of law ceased to be resolution applicant and its plan stood terminated. It is further argued that even against the order passed in CA (AT) (Ins) No. 86 of 2022 on 13.03.2022 which was challenged by one of the operational creditor, namely, M/s Vishal Nirmiti Pvt. Ltd. before the Hon'ble Supreme Court, which was dismissed and it was observed that three months granted to the Resolution Applicant (Appellant herein) to pay the residual balance amount in the designated account alongwith overdue interest has already expired. No payment has been made. The Hon'ble Supreme Court has further directed that the Adjudicating Authority may proceed further with the matter in accordance with l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ompany petition CP (IB) 372/7/HDB/2018 vide order dated 25.02.2019 and therefore, the extension and continuation of moratorium, as ordered originally vide order dated 25.02.2019, will continue to be in force and there is no need for fresh order declaring mortarium. The contention having been raised by the Appellant is an afterthought to delay the conclusion of the CIRP. It is further submitted that the order of moratorium stood revived on the extension of the CIRP which was granted by the order passed in I.A. No. 283 of 2023 dated 05.09.2023, therefore, it was only an eclipse on the moratorium during the period from 01.10.2021 to 05.09.2023 on account of the plan approval in the first instance and upon the failure of the said resolution plan and extension of CIRP period, the moratorium stood revived automatically. 18. As regards, the submission of the Appellant is that he is ready and willing to implement his failed resolution plan alongwith 8% interest, reference has been made to the order passed in CA (AT) (Ins) no. 340 of 2022 in which it has been held that there is no specific provision authorizing the Adjudicating Authority to consider extension of timelines for the purpose o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of 2022 challenging the order dated 05.09.2022 but since no challenge was made, therefore, as per Explanation IV of Section 11 of the CPC which provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit would apply and in this regard reliance has been placed upon the orders passed in S.P. Propbuild LLP Vs. Rabindra Kumar Mintri, CA (AT) (Ins) No. 1529 of 2022 in which it has been held that principle of res judicata applies to different stages in the same proceedings as well. Reliance has also been placed upon a decision of the Hon'ble Supreme court in the case of Forward Construction Co. and Ors. Vs. Prabhat Mandal, Andheri & Ors. (1986) 1 SCC 100. It is further submitted that even the IBC does not contemplate any occasion for the Adjudicating Authority to pass a fresh order declaring moratorium especially during the CIRP and the order of afresh CIRP was to continue the CIRP on account of failure of resolution plan submitted by the Appellant. It is further submitted that regarding the absence of the order for setting aside the order dated 01.1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ounsel for the parties and perused the record with their able assistance. 24. This case has a chequered history which has already been explained and narrated herein before. There is no doubt that resolution plan submitted by the Appellant was approved in I.A. No. 861 of 2020 on 01.10.2021 but there is no doubt as well that the said plan was ought to have been implemented by the Appellant within 90 days. It is also not in question that on account of its failure to implement the resolution plan, the Appellant filed I.A. No. 77 of 2022 and sought extension of 60 days but the said application was not allowed as it was dismissed on 01.02.2022. The order passed on 01.02.2022 was further challenged by the Appellant in CA (AT) (Ins) No. 86 of 2022 in which the Appellant was granted three months' time for payment of residual balance amount with interest @ 8%, from the order dated 13.04.2022 till 12.07.2022 but it was still not complied with and this fact has been noticed by the Hon'ble Supreme Court in its order dated 29.08.2022 passed in Civil Appeal No. 3660 of 2022 in which the order dated 13.04.2022 was challenged by one operational creditor, M/s Vishal Nirmiti Pvt. Ltd.. In such circu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the permission was granted. The said order was challenged by the Appellant by way of appeal i.e. CA (AT) (Ins) No. 340 of 2022 but remained unsuccessful and the order passed in CA (AT) (Ins) No. 340 of 2022 has also been upheld by the Hon'ble Supreme Court when the Appellant's Civil Appeal No. 1133 of 2023 was withdrawn. As regards the reimposition of moratorium under Section 14 is concerned, the Appellant has raised a technical plea because moratorium is imposed once and with the failure of the Appellant in complying with the terms and conditions of the resolution plan and extension of time by the Tribunal to the RP to complete the CIRP afresh, the moratorium imposed initially deemed to have been continued. We also do not find any error in so far as the meeting of the JLM is concerned, especially when all these issues either have been decided or available to the Appellant much before the filing of this appeal, in the earlier litigation, which has also been closed against the Appellant when the appeal filed by the Appellant bearing CA (AT) (Ins) No. 340 of 2022 was dismissed by this Tribunal with a detailed order and the said order has now been upheld by the Hon'ble Supreme Court ....