TaxTMI 
TaxTMI 
TaxTMI 
2021 (12) TMI 1488
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.... Ltd. was declared as a sick industrial unit by the Board of Industrial and Financial Reconstruction (in short "BIFR") vide order dated 02.04.1998. The Respondent herein entered into Memorandum of Understanding (in short "MoU") agreement with M/s. J.K. Synthetics Pvt. Ltd. and thereby taking over the liabilities of Sick Industry. On the basis of that MoU, the AAIFR vide order dated 07.01.2005 approved and sanctioned the implementation of the rehabilitation scheme. It is also not in dispute that the order of AAIFR sanctioning the rehabilitation scheme stands undisturbed. 3. The Petitioner claiming to be the representative of the worker union of Sick Industry M/s. J.K. Synthetics Pvt. Ltd. filed this application to pass the order of Liquidation of the Respondent on the ground that the Respondent committed the breach of implementation of the scheme which is deemed to be approved Resolution Plan as per the Schedule-VIII of the Insolvency and Bankruptcy Code, 2016 whereby the amendment to the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 was carried on in view of Section 242 of the IBC, 2016. The amended provisions of Section 4(b) of Sick Industrial Companies (Special....
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....ery, as to how this application which is not filed by the Resolution Professional and being filed by purported Operational Creditor of the Respondent is maintainable without undertaking the Corporate Insolvency Resolution Process of the Respondent as per the Scheme of IBC, 2016? The Learned Counsel submitted that this Adjudicating Authority itself in its order dated 05.04.2021 passed in LA. No. 115 of 2020 in the case of Surendra Singh Hada & 125 other employees vs. M/s. Arfat Petrochemicals Pvt. Ltd. Anr. has held that "....5. (iii) Having decided so, we give liberty to the Operational Creditor to file application under Section 33(3) of Insolvency and Bankruptcy Code, 2016 subject to compliance of relevant provisions of law. In view of our decision, we do not consider it necessary to deal with other contentions made by both the sides." 5. Learned Counsel further submitted that since this Adjudicating Authority has already held that the sanctioned scheme under Sick Industrial Companies Act, 1985 (in short "SICA, 1985") is the Resolution Plan within the meaning of IBC, 2016 and upon breach of the implementation of the Resolution Plan, the aggrieved party can approach this Adjudicat....
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....f 2017 dated 01.11.2017] has held that Notification No. S.O. 1683 (E) dated 24.05.2017 to be valid and legal whereby it has been declared that sanctioned rehabilitation scheme is the Resolution Plan within the meaning of the IBC, 2016. Learned Counsel would further submit that in this case sanctioned rehabilitation scheme that has been approved by the AAIFR has to be treated as the Resolution Plan in view of the amended provision of Section 4(b) of Sick Industrial Companies (Special Provisions) Repeal Act, 2003. The Petitioner has proved that the Respondent herein has committed a breach of implementation of the sanctioned scheme which is deemed to be Resolution Plan and, hence, this application under Section 33(4) of the IBC, 2016 is maintainable. This Adjudicating Authority may pass the order of Liquidation of the Respondent. 9. Upon going through the pleadings of the parties and having heard the arguments of learned counsels, the following points arise for our determination. We record our findings with the reasons stated below: I. Whether the sanctioned scheme of rehabilitation dated 07.01.2005 is the Resolution Plan within the meaning of Section 5(26) of the IBC, 2016 in view....
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....commencement of the Insolvency and Bankruptcy Code, 2016 in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016: Provided further that no fees shall be payable for making such reference under Insolvency and Bankruptcy Code, 2016 by a company whose appeal or reference or inquiry stands abated under this clause.". [(Provided also that any scheme sanctioned under sub-section (4) or any scheme under implementation under sub-section (12) of section 18 of the Sick Industrial Companies (Special Provisions) Act, 1985 shall be deemed to be an approved resolution plan under sub-section (1) of section 31 of the Insolvency and Bankruptcy Code, 2016 and the same shall be dealt with, in accordance with the provisions of Part II of the said Code: Provided also that in case, the statutory period within which an appeal was allowed under the Sick Industrial Companies (Special Provisions) Act, 1985 against an order of the Board had not expired as on the date of the notification of this Act, an appeal against any such deemed approved resolution plan may be preferred by any person before National Company Law Appellate Tribunal within ninety days from the date of publication....
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....'SICA Repeal Act, 2003'." 13. No doubt in Para-56 of its judgment, the Hon'ble NCLAT has noted that it has no jurisdiction to declare the Central Government's Notification as illegal but at the same time the order of the Hon'ble NCLAT was challenged before the Hon'ble Apex Court and the Hon'ble Apex Court ultimately approved the NCLAT's finding in Para-45 (noted above) in its order dated 25.10.2018 in the case of M/s. Spartek Ceramics India Ltd. vs. Union of India & Ors. in Civil Appeal No. 7291-7292 of 2018. The Hon'ble Apex Court held that "2....having gone through the judgment dated 28.05.2018 passed by National Company Law Appellate Tribunal (NCLAT), we are of the view that the Judgment of the NCLAT holding that the appeal filed by the Central Government in that case not maintainable in view of the fact that the Notification dated 24.05.2017 travels beyond the scope of the removal of difficulties provision is correct." 14. Since the Hon'ble Apex Court held that notification dated 24.05.2017 travels beyond the scope of the removal of the difficulties provision is correct, it has to be held that the said notification declared to be void a....