TaxTMI 
TaxTMI 
2024 (1) TMI 733
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....Authority) Rules, 2016 (in short 'Rules') 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 ap....
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....unt' 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 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....
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....ns 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 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....
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....rred against the order of rejection of extension of time by this Tribunal, by virtue of which a time of three more month to make payment, was given, IA (IBC)/654/2022 has 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 Appellan....
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.... Approval Application' which was approved by the 'Adjudicating Authority' vide order dated 01.10.2021. It has however been brought out by the 'Appellant' that order was uploaded only on 25.10.2021. As per approved 'Resolution 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 o....
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.... 10. Aggrieved by the 'impugned order' passed by the 'Adjudicating Authority' the 'Appellant' approached this 'Appellate Tribunal' by CA (AT) (CH) (Insolvency) No. 86 of 2022 in I.A No. 183 & 184 of 2022 and this 'Appellate Tribunal' vide order dated 13.04.2022 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 t....
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....efore 23.01.2022. On 21.01.2022, the Respondent No. 1 filed an application before the Adjudicating Authority seeking extension of time by 60 days to make the deposit. By an order dated 02.02.2022, the Adjudicating Authority granted two weeks' time to the Respondent No. 1 to make the payment. Against the aforesaid 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)....
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....by the NCLAT, the SRA loses his right of seeking for extension on any ground. As regards IA(IBC)/655/2022, which was filed by Successful Resolution Applicant seeking impleadment in the liquidation application, we notice that no such IA was filed by the Resolution Professional for initiation of liquidation proceedings of the Corporate Debtor. As such, we don'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' subm....
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.... @ 8% per annum. The Learned Counsel for the Appellant assailed the 'impugned order' which ignored this vital point. 19. The Learned Counsel for the Appellant submitted that the expromoters of the 'Corporate debtor' committed frauds and gave wrong information to the 1st Respondent and the 'Committee of Creditors' and as a result of which incorrect "Information Memorandum" was prepared. The Learned Counsel for 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 t....
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....at all support was given to the 'Appellant' in order to implement the 'Resolution Plan' successfully and smoothly. However, right from the beginning the attitude of the 'Appellant' was seems to be only buying time and postponing the settlement of the claims. The Learned Counsel for the Respondent further pointed out that the 'Adjudicating Authority' as well as this 'Appellate Tribunal' extended the time line beyond 90 days, however the 'Appellant' could not 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 lia....
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....esolution Applicant' to pay the residual amount along with interest had expired without making any payment and thus, the appeal became infructuous and dismissed. The Learned Counsel for the Respondent emphasised that the 'Appellant' has exhausted all his legal remedies and the present appeal is therefore is liable to be dismissed. 29. The Learned Counsel for the Respondent stated that the 'Appellant' approached the 'Adjudicating Authority' vide I.A. No. 77 of 2022 ('Extension 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 ....
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....esolution Applicant' has claimed to be in position to implement the 'Resolution Plan', albeit, beyond the schedule as stipulated in the 'Resolution Plan' ? (IV) Whether, the 'Appellant' exhausted legal remedies in view of failure to comply extended time lines permitted vide order dated 13.04.2022 as well as after dismissal of appeal filed by one 'Operational Creditor' before the Hon'ble Supreme Court of India challenging this Appellate Tribunal's order ? 35. Issue No. (I) Whether the 'Adjudicating Authority' has got 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....
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....t of overdue amounts in accordance with the proviso to clause (c) of section 29A: Provided also that nothing in the second proviso shall be construed as extension of period for the purposes of the proviso to sub-section (3) of section 12, and the corporate insolvency resolution process shall be completed within the period specified in that subsection.] [Provided also that the eligibility criteria in section 29A as amended by the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 (Ord. 6 of 2018) shall apply to the resolution applicant who has 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 ....
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....in effective revival of the 'Corporate Debtor'. * In catena of the judgments passed by the Hon'ble Supreme Court of India including case cited by the 'Respondent' quoted in preceding paragraphs it has been decided that the commercial wisdom of the Committee of Creditors is supreme and judicial interventions by the Adjudicating Authority and/ or the Appellate Authority should be minimum. * 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'. 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....
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....s of the Corporate Debtor' and take care of interest of all stake holders and not limited to one stake holder or one set of stake holders. ➢ In view of the provisions as stipulated in the I & B Code, 2016 ➢ Specific provisions of time lines of 90 days from the effective dates and subsequent additional 60 days as the outer limit provided in Resolution Plan. ➢ Specific proviso in Resolution Plan that after 90 + 60 days if settlement payment is not made money already been paid is liable to be forfeited. ➢ Failure to comply even extended time lines of three months given by this Appellate 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 'Adjudi....
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....his Appellate Tribunal note that prayer made in I.A. No. 655 of 2022 by the Appellant in (a), (b) & (c) reads as under: a) Allow the Applicant, being the Successful Resolution Applicant of the Corporate Debtor, to be impleaded as a party and to make submissions in the Liquidation Application. b) Allow the Applicant to access a copy of the Liquidation Application and file a Reply to the Liquidation Application, or file a separate Application seeking directions if required; c) Pass such other and further orders as may be deemed fit by this Hon'ble Court. * Therefore, the 'Adjudicating Authority' seems to be right in observing that there was no application for initiation of liquidation 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 Author....
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....onths period was given to the 'Appellant' to settle all the payments as per approved the 'Resolution Plan'. Subsequently, in different appeal filed by one 'Operational Creditor' before the Hon'ble Supreme Court of India challenging this 'Appellate Tribunal's' order vide Civil appeal No. 3660 of 2022, the Hon'ble Supreme Court of India dismissed the same vide order dated 29.08.2022. Accordingly, three month periods extended by this 'Appellate Tribunal' was also over and no payment was made. Hence, prima-facie, it looks that the 'Appellant' had taken all the legal remedies available to it including various Interlocutory Applications filed before the 'Adjudicating Authority', appeal made to this 'Appellate Tribunal' and upholding this 'Appellate Tribunal' 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....
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.... c. As things stood thus, the Applicant could not make the complete payment as per the terms of the Resolution Plan due to the financial difficulties which were induced due to COVID 19. The Applicant is ready to make the full payment of the agreed Resolution amount as agreed in the Resolution Plan along with the interest, even today. d. The Respondent, in the meantime, has filed an application seeking a fresh CIRP which was allowed by this Tribunal to complete the CIRP within 60 days from the date of order, which is 05.09.2022. The RP did not make the Applicant as a party to the said IA. The Applicant has challenged the said order before the Hon'ble NCLAT. The Hon'ble NCLAT dismissed the application and a Civil Appeal No.1133/2023 is preferred before the Hon'ble Supreme Court and the same 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 a....
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.... b. The RP filed IA No.283 of 2022 before this Tribunal, seeking fresh CIRP by granting 60 days time which was allowed by order dated 05.09.2022 recording that the time granted by the Hon'ble NCLAT, Chennai was over and the Applicant could not fulfil its commitments. The Applicant preferred an Appeal before the Hon'ble NCLAT, Chennai against the Order of this Tribunal in IA No.283 of 2022 which was dismissed on merits. Given the noncompliances of the Applicant, he lost his locus standi. c. The law is well settled on the wisdom of the CoC. The Hon'ble Supreme Court of India in a catena of landmark judgments such as K. Shashidhar Vs. Indian Overseas Bank and Others (2019) 12 SCC 150; Committee of Creditors, Essar Steel India Limited Vs. Satish Kumar Gupta and Ors. (2020) 8 SCC 531; Maharashtra Seamless Limited Vs. Padmanabhan Venkatesh and 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 stand....
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....urther relief to the Appellant at this juncture." 6. It is also an admitted fact that in the fresh CIRP, this Applicant did not submit any Resolution Plan. 7. 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 Code, 2016, in relation to the `Corporate Debtor', this `Tribunal', without any haziness, holds that the Appellant is not an aggrieved person coming within the ambit of Section 61(1) of the I & B Code, 2016, especially when he is not a privy to the Resolution Plan." 8. Hence, in view of the above background of law and facts in this case, 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.....
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....udgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented, (ii) a judgment was obtained by fraud, (iii) a party has had no notice and a decree was made against him and such party approaches the Court for setting aside the decision ex debito justitiae on proof of the fact that there was no service." 6. The Counsel on the grounds 2 & 3 mentioned in the above judgement seeks this Tribunal to recall the Order. He contends that the Court was mislead as regards the status of the Applicant as Unsuccessful Resolution Applicant which he is not. 7. The judgement of the Hon'ble NCLAT in IA 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 between Union Bank of India (Erstwhile Corporation Bank) Vs. Dinkar T. Venkatasubramanian & Ors, was also relied upon in support of the contention 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 t....
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....lution Applicants by merely going on the technical interpretation that he became a Successful Resolution Applicant in the first instance which is a past story. 12. The Counsel could not satisfy us as to under what category, the Applicant who was once the Successful Resolution Applicant and could not fulfil the conditions of the Resolution Plan, would fall. The supreme court, in the above cited judgment, in fact used the term "unsuccessful resolution applicant" in respect of the resolution applicant who submitted his plan in response to the invitation and was in the fray. The applicant herein does not even fall under the definition of "unsuccessful resolution applicant" much less resolution applicant, since he did not submit any plan when invitation was made afresh. His grievance expressed through the counsel, at the time of arguments, as to what would happen to his earnest money, cannot be redressed by this tribunal in this application since it is beyond the scope of 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 a....
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.... period also. It is submitted by the Appellant that though the Order dated 01.03.2022 was set aside by the Order dated 13.04.2022, yet the RP had forfeited EMD of the Appellant Bank amounting to Rs.65Crores/-. 6. I.A. No.283/2022 was ultimately allowed on 05.09.2022 and 60 days time was granted. In this Order, the Adjudicating Authority directed the RP to start the CIRP afresh. This Order was challenged by the Appellant by way of Comp. App. (AT) (CH) (Ins.) No. 340/2022 before this Tribunal which was dismissed on 25.11.2022. The Order dated 25.11.2022 is under challenge by way of an Appeal by the Appellant bearing Civil Appeal No.1133/2023 before the Hon'ble Supreme Court which is stated to be pending. 7. The RP then filed IA No.305/2023 seeking approval of the second Plan submitted by a consortium of Mr. B. Subba Reddy and Mr. C. Venkateswara Reddy which has been allowed by the Impugned Order dated 05.07.2023. It is also pertinent to mention that the Appellant filed IA No.103/2023 for recalling of the Order dated 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.....
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....peal, therefore, we, intend to issue Notice to the Respondents for a detailed hearing. 13. Let Notice be issued to the Respondents. At this stage, Sh. VVN Raju accepts Notice on behalf of the Respondent No. 2 (Corporate Debtor). Sh. HS Hredai accepts Notice on behalf of Respondent No. 3. 14. Let Notice be also issued to Respondent No. 4, the Erstwhile Committee of Creditors. Necessary requisites etc., and the process fee shall also be filed for the date already fixed. Counsel for Respondent No. 4 be also served through email which shall be provided by Counsel for the RP to the Registry by Monday i.e., 17.07.2023. 15. Counsel for the Appellant is directed to provide a complete Paper Book of this Appeal with all annexures in legible condition to both the Counsel for the Respondents within a period of 3 days. Counsel for Respondents may file their Reply on or before 19.07.2023. Reply, if any, may be filed by 26.07.2023. The Rejoinder on or before 31.07.2023. List this matter on 31st July, 2023 and this matter should be shown in the list of Hearing After Notice. Till the next date of hearing the further proceedings shall remain stayed." 12. The Re....
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....y was justified in directing afresh CIRP and further held that the Appellant has exhausted all its legal remedies for not complying with the extended timelines. The order dated 25.11.2022 was challenged before the Hon'ble Supreme Court in Civil Appeal No. 1133 of 2023 by the Appellant which came to be dismissed as withdrawn on 04.12.2023 and the prayer made by the Appellant to keep all the contentions left open was not adverted to in the said order. The RP filed I.A. No. 305 of 2023 for approval of the resolution plan submitted by Respondent No. 3 in which the Appellant filed I.P. No. 8 of 2023 for intervention but it was dismissed on 19.06.2023 and further the Appellant filed I.A. No. 1031 of 2023 for recalling of the order dated 19.06.2023 passed in I.P. No. 8 of 2023 which was also dismissed on 05.07.2023 and I.A. No. 305 of 2023 was allowed and the resolution plan submitted by the Respondent No. 3 was approved. 15. The Appellant has now, by way of the present appeal, challenged the order dated 05.07.2023. Counsel for the Appellant has argued that the CIRP was initiated on 25.02.2019 and as a necessary corollary, order under Section 14 was passed which was lifted when the res....
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....round that unsuccessful resolution applicant has no locus to assail a resolution plan or its implementation because he is not a stakeholder as per Section 31(1) of the Code. In this regard, reliance has been placed upon a decision of this Tribunal rendered in the case of M.K. Rajagopalan Balaji Villav Vs. S. Rajednran, RP Vasan Health Care Pvt. Ltd.& Ors., CA (AT) (Ins) No. 58 of 2023. It is also submitted that the present appeal is yet another attempt of the defaulted and failed resolution applicant who wanted to derail the resolution plan and payment to stakeholders. It is argued that the Appellant has failed to fulfill the resolution plan even after being granted multiple extensions for fulfillment of the resolution plan submitted by it which is evident from the orders passed in I.A. No. 77 of 2022 wherein time of two weeks was granted initially for making payments and on 21.02.2022 further one week time was granted for making payments but the Appellant has failed to make any payment and upon failure and repeated request for extension, the Adjudicating Authority vide its order dated 01.03.2022 rejected the said application and directed the RP to forfeit the EMD. It is further su....
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....3 of 2022 dated 05.09.2023 based upon JLM dated 19.01.2022 is without any substance because the appeal preferred by the Appellant against the order dated 05.09.2022 bearing CA (AT) (Ins) No. 340 of 2022 was dismissed and further an appeal against the same before the Hon'ble Supreme Court has been dismissed as withdrawn without getting permission to raise the contentions contained therein, therefore, this chapter has been finally closed. It is submitted that the Appellant is therefore estopped from raising all the issues herein again on the principle of constructive res judicata. It is further submitted that contention of the Appellant in relation to non-imposition of the fresh moratorium, pursuant to the order dated 01.10.2021, by which the resolution plan of the Appellant was approved in I.A. No. 861 of 2021 is in consequential. It is submitted that the interlocutory application for continuation of CIRP and issuance of fresh From G was in pursuance of the fulfillment of the original order of the Adjudicating Authority admitting the Corporate Debtor into CIRP and for extension/continuation of the CIRP proceedings in the main company petition CP (IB) 372/7/HDB/2018 vide order dated ....
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.... 2022 more particularly in issue no. 1 and 2. It is further submitted that the appeal filed against the order dated 25.11.2022 before the Hon'ble Supreme Court has been withdrawn by the Appellant itself and has not been given permission by the Hon'ble Supreme Court to raise the contentions again. It is further submitted that the offer made by the Appellant of a higher amount is of no avail and in this regard, reliance has been placed upon a decision of the Supreme Court rendered in the case of E S Krishnaurthy & Ors. Vs. M/s Bharath Hi Tech Builders Pvt. Ltd., Civil Appeal No. 332 of 2020. It is further argued that the issues raised by the Appellant herein i.e. the order of the Adjudicating Authority directing the 2nd Respondent to conduct fresh CIRP, failed to declare a moratorium under Section 14 and rendering the fresh CIRP illegal, no judicial proceedings setting aside the order dated 01.10.2021 passed in I.A. No. 861 of 2020 and that the Joint Lenders Meeting held on 19.01.2022 was illegal and resolution passed is non-est, were available to the Appellant to raise at the time of filing the appeal bearing CA (AT) (Ins) No. 340 of 2022 challenging the order dated 05.09.2022 but s....
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....order of approval of the resolution plan and reliance has been placed again on the same judgment M.K. Rajagopalan (Supra). It is further submitted that the Appellant has mis-interpreted the word afresh used in the order passed in I.A. No. 283 of 2022 which only means extension of the first CIRP. Counsel for the Respondent No. 4 has also submitted that all the issues which have been raised now have already been decided or could have been taken earlier, therefore, it is hit by principle of constructive res judicata. It is further submitted that wisdom of the CoC (4th Respondent) is supreme and cannot be challenged. The resolution plan of the Respondent No. 3 has been accepted by the Respondent No. 4 with 100 % voting share. The Respondents have thus prayed that the present appeal may be dismissed with costs. 22. In rebuttal, Counsel for the Appellant has submitted that the principle of constructive res judicata is not applicable because the Appellant has raised the question of law and it is further submitted that there is an irregularity in the proceedings because the moratorium once lifted was never imposed again. 23. We have heard Counsel for the parties and perused the recor....
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....n civil appeal were closed by the Hon'ble Supreme Court and in pursuance of the order passed in I.A. No. 283 of 2022, the proceedings were continued and the RP filed I.A. No. 305 of 2023 for approval of the resolution plan submitted by the Respondent No. 3 in which the Appellant sought intervention through I.P. No. 8 of 2023 which was dismissed on 19.06.2023 and then the Appellant filed I.A No. 1031 of 2023 for recalling of the order dated 19.06.2023 which too was dismissed on 05.07.2023 and ultimately on the same date i.e. on 05.07.2023 the application I.A. No. 305 of 2023 was allowed and the resolution plan submitted by the Respondent No. 3 was approved. The contention of the Appellant that the order dated 01.10.2021 passed in I.A No. 861 of 2020 has not been set aside or recalled is not correct because on account of the failure of the Appellant in complying with the payment schedule (timelines) and in the absence of any further extension of time it automatically came to an end and as a result thereof, the RP had to file the application bearing I.A. No. 283 of 2022 for the purpose of extension of time of 60 days for completion of CIRP and the permission was granted. The said orde....