TaxTMI 
TaxTMI 
2025 (12) TMI 235
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.... the appellant in C.P. (IB) No.923/PB/2018 has been dismissed. The present appeals arise out of third round of litigation initiated at the instance of the appellant. 2. The background facts of the case giving rise to the appeals need to be noted for deciding the issues raised in these appeals are: i. The corporate debtor, Today Home Noida Private Limited, launched a Real Estate Project, namely "Today Homes Rich Residencies" located at Sector 135, Noida. ii. Appellant had paid consideration towards allotment of total 50 flats in the project in the year 2012. Out of total 50 flats, the possession of 9 flats was given to the appellant in the year 2018. iii. On an application filed under Section 7, Corporate Insolvency Resolution Process (CIRP) against the corporate debtor commenced vide order dated 20.08.2019. The respondent Ravindra Kumar Mantri was appointed as a Resolution Professional (RP_ in the CIRP. iv. Respondent No. 1 has published 'Form-A' dated 24.08.2019 inviting claims. Last date for submission of the claim was 03.09.2019. v. On 06.11.2019, RP published 'Form-G'. Information memorandum published by RP was approved by the Com....
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.... While the resolution plan of the SRA was pending consideration before the NCLT appellant on 28.08.2023 filed an I.A.4815/2023, challenging the resolution plan. xvi. Hon'ble Supreme Court delivered a judgment on 12.02.2024, in 'Greater Noida Industrial Development Authority' Vs. 'Prabhjit Singh Soni & Anr.' reported in [(2024) 6 SCC 767] holding that Greater Noida Industrial Development Authority is a secured creditor and the resolution plan which was approved in the above case and was challenged by the Greater Noida Industrial Development Authority was sent back to the CoC for resubmission. xvii. The I.A.2518/2021 was filed by the RP for approval of the plan as well as I.A.3615/2022 and I.A.4172/2022 filed by the Noida came for consideration before the NCLT and NCLT vide order dated 05.03.2024, relying on the judgment of the Hon'ble Supreme Court in 'Greater Noida Industrial Development Authority' (supra) sent the plan back to the CoC for resubmission. In the light of the observation of the Hon'ble Supreme Court in paragraph 54b and 54c of the judgment in 'Greater Noida Industrial Development Authority' (supra). xviii. The order dated 05.03.2024 passed b....
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.... submitted that approval of the resolution plan by the CoC on 03.03.2020 was the reason for not accepting the belated claim filed by the appellant which was settled up to Hon'ble Supreme Court but the approval of the resolution plan dated 03.03.2020 being no more in existence and the plan having been remitted back to the CoC, the claim of the appellant can very well be considered by the successful resolution applicant and the claim of the appellant can very well be included in the resolution plan. The resolution plan has been sent back by the adjudicating authority to the CoC for fresh consideration in which fresh consideration, appellant's belated claim can also be included. There is no prohibition in non-consideration of the claim of the appellant which was initially not accepted on account of the delay and approval of the plan by CoC on 03.03.2020. Adjudicating Authority committed an error in treating the earlier orders passed by the NCLT, NCLAT and Hon'ble Supreme Court as res judicata. Principle of res judicata are not applicable when based on subsequent event, there arises a fresh cause of action due to subsequent event that is remittance of the plan to the CoC. I.A.4167/2024....
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....view of the law laid down by the Hon'ble Supreme Court and SRA to resubmit the plan giving effect to the direction of the Hon'ble Supreme Court. The plan was remitted for no other purpose. RP was not entitled to receive any fresh claim or collate any claim. Appellant at the stage when plan has been sent back for resubmission before the CoC cannot file any amendments seeking a direction to accept his belated claim, which already has been rejected and became final up to the Hon'ble Supreme Court. Regulation 13(1)(b) of CIRP Regulations, 2016 is only prospective and shall be applicable only to claim filed after 18.09.2023, and the said regulation is inapplicable in the CIRP, the present CIRP having commenced in the year 2019, with plan approved in 2020. Adjudicating authority has rightly dismissed both the applications. It is submitted that application filed by the appellant I.A.4815/PB/2023 having been held to be non-maintainable, any amendment prayed in the said application has also rightly been rejected. Learned sr. counsel Mr. Sunil Fernandes appearing for the SRA submits that there are 6 orders passed against the appellant by NCLT, NCLAT and Hon'ble Supreme Court, 3 orders in eac....
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....24. Resolution plan was remitted to the CoC only to address the proper treatment of Noida as secured creditor as required by the Hon'ble Supreme Court in 'Greater Noida Industrial Development Authority' (supra). Limited resubmission of the plan was intended to correct specific non-compliance and not to reopen the entire plan or entertain belated claim. It is submitted that the appeal filed by the appellant deserves to be rejected. 6. We have considered the submissions of the counsel for the parties and perused the records. 7. The facts as noted above indicate that CIRP against the corporate debtor commenced on 20.08.2019. Publication was made in inviting the claims on 24.08.2019 and last date for submission of the claim was 03.09.2019. After the RP collated the claims received issued in 'Form-G' on 06.11.2019 inviting expression of interest resolution plans were received and CoC approved the resolution plan on 04.03.2020 and application for approval of the resolution plan was also filed on 18.04.2020 I.A.2518/2021. Appellant filed its claim before the RP in 'Form-C' on 16.06.2020. The claim was rejected by the RP on 24.03.2021. RP vide letter dated 24.03.2021, rejected the cl....
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.... in detail and was dismissed by this Tribunal vide its judgment and order dated 04.07.2023. The order of rejection of the application I.A.3640/2022 was upheld. Order passed by this Tribunal was also affirmed by the Hon'ble Supreme Court by dismissing the Civil Appeal No.4650/2023 on 21.08.2023. 10. As noted above the application for approval of the resolution plan being I.A. No.2518/2021 was filed by the RP on 18.04.2020, the Noida who had allotted the land to the corporate debtor on which project was being considered had filed two applications before the adjudicating authority being I.A. No.3615/2022 & I.A. No.4172/2022. The Hon'ble Supreme Court delivered a judgment on 12.02.2024 in 'Greater Noida Industrial Development Authority' (supra) which appeal was filed by the Greater Noida Industrial Development Authority challenging the order of NCLT, NCLAT by which applications filed by Noida to recall the order approving the resolution plan was rejected. Noida has also filed an application before the NCLT questioning the decision of the RP treating the Greater Noida Industrial Development Authority as an operational creditor. The appeal was decided by Hon'ble Supreme Court and it w....
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....ble under Section 24(3)(c) of the IBC to an operational creditor with aggregate dues of not less than ten percent of the debt and, secondly, in the proposed plan, outlay for the appellant got reduced, being a percentage of the dues payable. In our view, for the reasons above, the resolution plan stood vitiated. However, neither NCLT nor NCLAT addressed itself on the aforesaid aspects which render their orders vulnerable and amenable to judicial review. b. The resolution plan did not specifically place the appellant in the category of a secured creditor even though, by virtue of Section 13-A of the 1976 Act, in respect of the amount payable to it, a charge was created on the assets of the CD. As per Regulation 37 of the CIRP Regulations 2016, a resolution plan must provide for the measures, as may be necessary, for insolvency resolution of the CD for maximization of value of its assets, including, but not limited to, satisfaction or modification of any security interest. Further, as per Explanation 1, distribution under clause (b) of sub-section (2) of Section 30 must be fair and equitable to each class of creditors. Non- placement of the appellant in the class of secured c....
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....no order as to costs." In the instant case, we are concerned with para nos. 54 (b) and (c) which relates to placing the Appellant in the category of secured creditors and for ensuring that the plan envisages necessary approvals of the statutory authority. In the light of the relief granted by the Hon'ble Supreme Court enunciated in para 55 above, we deem it appropriate to send the plan back to the CoC for resubmission after satisfying the parameters set out by the Code, in the light of the observations of the Hon'ble Supreme Court's order (para 54 b & c. supra). Accordingly, IA-2518/2021, IA-3615/2022 and IA-4172/2022 stands disposed of in above terms." 12. The order dated 05.03.2024 passed by the adjudicating authority in the above three applications is the basis and foundation of the submissions advanced by both the parties in the appeal. Learned counsel for the appellant on the one hand has contended that in view of the fact that resolution plan has been sent back for the CoC for resubmission, the said order gave fresh cause of action to the appellant to again agitate acceptance of his claim which was earlier rejected in earlier two rounds. It is su....
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....ters in the light of the judgment of the Hon'ble Supreme Court in paragraph 54b & 54c. Paras 54b & 54c as extracted above clearly indicate that in paragraph 54b Hon'ble Supreme Court held that Greater Noida Industrial Development Authority (Noida Authority in the present case) is a secured creditor by virtue of Section 13A of the 1976 Act and further in paragraph 54C, it was held that resolution plan must inter alia demonstrate it is feasible and viable and it has provision for approval required and the timeline for the same. The law declared by the Hon'ble Supreme Court in 'Greater Noida Industrial Development Authority' (supra) is a law binding on all and the direction of adjudicating Authority 05.03.2024 was only to give effect to the direction of the Hon'ble Supreme Court with respect to paragraph 54b & 54c. The plan was sent back to the CoC for resubmission after satisfying the parameters. Thus, SRA & CoC was to act in accordance with the direction of the NCLT 05.03.2024 and to ensure that the plan is in accord with law laid down by the Hon'ble Supreme Court and complies the observations made by Hon'ble Supreme Court in paragraph 54b & 54c. The order of the NCLT cannot be read....
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....d as noted in the order dated 05.03.2024. The Resolution Plan be put before the CoC for consideration and voting after incorporating the directions of Adjudicating Authority in above regard. (IV) We request the Adjudicating Authority to consider the other Applications as noted in the order dated 05.03.2024 at an early date." 15. The above order of this Tribunal does not express any opinion on the merits of the application filed by the appellant pending before the adjudicating authority for consideration. Two applications which have been decided by the impugned order being I.A.4815/2023 & I.A.4167/2024, need to be noticed. In I.A. 4815/2023 filed by the appellant, following prayers were made: "i. Allow the instant Objection Application against the Resolution Plan submitted by Respondent No. 1 before this Hon'ble Tribunal; ii. Pass an order under Section 60(5) of the Code read with Rule 11 of NCLT rules thereby Rejecting the Resolution Plan submitted by the Resolution Applicant viz., Consortium of One Group as the same does not align with the provisions of the Code; and/or; iii. Pass such order(s) or further order(s) as this Hon'ble Trib....
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....and on Issue No. II adjudicating authority held that since the I.A.4815/2023 has been held as not maintainable, any amendment is also not maintainable. In paragraph 59, following has been held: "59. Now moving to the amendment application, we see that by this amendment the Applicant seeks to add the following relief to the application being I.A. No. 4815/2023: Direct the Resolution Professional to consider and admit the claim of the Applicant. This amendment application does not delete the prayers sought in I.A. No. 4815/2023 which being an objection to the Plan. Since we find IA 4815/ 2023 as not maintainable, consequently any amendment is also not maintainable." 20. With respect to addition of relief for direction to the RP for admission of claim, adjudicating authority has also held that applicant having lost already two rounds upto the Supreme Court for same relief. The applicant cannot seek to create a right already claimed and rejected. In paragraph 60 following has been held: "60. So far as this addition of relief for direction to Resolution Professional for admission of claim is concerned, the Applicant has already lost two rounds of l....
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....ly, on the legal development as above, we note that this subregulation was Inserted by Notification No. IBBI/2023-24/GN/REG106, dated 18th September, 2023 (w.e.f 18-09-2023). The amendment is prospective in nature and thus would not apply to the CIRP of the CD in present case, where CIRP commenced in 2019 and the Plan was approved on 03.03.2020. Also we find it relevant to note that as per precedents laid down by the Hon'ble Supreme Court, amendments creating new rights and liabilities are deemed to be prospective in nature. In a judgment in the matter of Nara Chandrababu Naidu vs State of Andhrapradesh and Anr. 2024 SCC online SC 47, the Hon'ble Supreme Court has observed and held as under: 59. Thus, whereas the prospective statute operates from the date of its enactments conferring new rights, the retrospective statute operates backwards and takes away or impairs vested rights acquired under the existing laws. A retroactive statute is one that does not operate retrospectively, however depending upon the status and nature of the events or transactions, the operation of the statute is extended or given effect from the date prior to its enactment. So far as the Ame....
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.... where landlord has filed suit for eviction to start automobile motor spares business, during pendency of the proceedings it was brought into notice of the High Court that landlord has come into possession a shop hence the petition for eviction is no longer maintainable. The above observations were made in context of the above facts relating to eviction suit, there can be no dispute to the proposition laid down by the Hon'ble Supreme Court in the above case, but present is a case of the IBC proceedings which are proceedings in rem. IBC proceedings proceed in different stages and rights accrue to stakeholders at different stages. The above judgment does not support the submission of the appellant that after the order dated 04.03.2024, appellant acquired any right to file a fresh claim in the CIRP. 24. Another judgment relied is [(2002) 2 SCC 256], 'Omprakash Gupta' Vs. 'Ranveer B. Goyal', where Hon'ble Supreme Court held that court has power to take note of subsequent events and mould the relief accordingly. Following was observed in paragraph 11: "11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of th....
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....ing authority found the plan not in conformity. In the meantime, the judgment of the Hon'ble Supreme Court in 'Greater Noida Industrial Development Authority' (supra) was delivered which also need to be complied hence for compliance of the judgment of the Hon'ble Supreme Court plan was remitted to the CoC for resubmission. The direction of the adjudicating authority dated 04.03.2024 cannot give right to anyone to file fresh claim or reagitate the claim which was rejected in the same proceeding upto the Hon'ble Supreme Court. Learned counsel for the appellant has also relied on various judgments on the amendment of pleadings. He has placed reliance on the judgment of the Hon'ble Supreme Court in [(2004) 6 SCC 415] Pankaja & Anr. Vs. 'Yellappa (Dead) by Lrs. & Ors.'. Hon'ble Supreme Court in the above case has laid down principles of allowing an amendment, to the same effect is another judgment relied is 'Abdul Rehman & Anr.' Vs. 'Mohd. Ruldu & Ors.' reported in [(2012) 11SCC 341] where Hon'ble Supreme Court has dealt upon Order 6, Rule 17 of the CPC. Two more judgments on the amendment of the pleading has been relied. The judgment in [(2006) 4 SCC 385] 'Rajesh Kumar Aggarwal & Ors.'....
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....ing and direction to reconsider the claim we have already noticed above that in two rounds application filed by the appellant from NCLT to the Hon'ble Supreme Court were rejected, where appellant challenged the decision of the RP of not accepting his claim in the CIRP. Appellant has also placed reliance on the two more judgments of the Delhi High Court and Hon'ble Supreme Court on principle of res judicata. Reliance has been placed in [1970 SCC OnLine DEL 194]' 'Smt. Khazano & Ors.' Vs. 'Kani Ram & Ors.'. Delhi High Court in the above judgment while elaborating the principle of res judicata made following observations: "The next question to be decided is whether the previous decisions will operate as res judicata and bar a decision of the question whether the decree is a nullity or not. The lower appellate Court has given no reasons as to why the previous decision of the executing Court dated 7-9-1960 and of the High Court dated 19-12-1962 will operate as res judicata. Section 11 of the Civil Procedure Code deals with the principle of res judicata. It lays down that a matter directly and substantially in issue in a suit if directly and substantially in issue in a previous ....
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....decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declared valid a transaction which is prohibited by law." 27. Another judgment relied by the appellant is [(1999 5 SCC 590] 'Hope Plantations Ltd.' Vs. 'Taluk Land Board, Peermade & Anr.', wherein paragraph 31, Hon'ble Supreme Court laid down following: "31. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for....
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.... barred by res judicata. 31. Dismissing this argument and affirming the application's viability, a Bench of three Hon'ble Judges of this Court observed thus : (Dossibai N.B. Jeejeebhoy case [Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970) 1 SCC 613], SCC pp. 617 & 619, paras 5 & 10-11) "5. But the doctrine of res judicata belongs to the domain of procedure : it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent court on a matter in issue may be res judicata in another proceeding between the same parties : the "matter in issue" may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a m....
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....he same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the court or a decision of the court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land." (emphasis supplied) 32. The law, as we noticed aforesaid, aptly resolves the firs....