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2025 (12) TMI 1477
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.... Mr. Karan Gandhi, Ms. Riya Jain, Advocate, Advocates for Bank of India. JUDGMENT Ashok Bhushan, J. This Appeal by a Successful Resolution Applicant has been filed challenging the order dated 14.10.2025 passed by the Adjudicating Authority (National Company Law Tribunal) New Delhi, Court-VI by which Adjudicating Authority disposed of CA (IBC)/240/PB/2020 filed by the Resolution Professional praying for approval of the Resolution Plan of the Appellant, by remanding the Resolution Plan to the Committee of Creditors (CoC) for reconsideration. By the same order IA/4424/ND/2024 & IA/5555/ND/2024 were also disposed of. Appellant aggrieved by the impugned order has come up in this Appeal. 2. Brief background of the facts giving rise to the Appeal are:- 2.1. Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor- 'Angad Infrastructure Private Limited' commenced vide order dated 25.10.2018 passed by the Adjudicating Authority on application filed by Edelweiss Asset Reconstruction Company Limited, the Financial Creditor. IRP made a public announcement on 27.10.2018 inviting the claims one SICOM Limited filed its claim on 12.11.2018 in Form C as a Financ....
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....24, Resolution Professional verified the claim and classified Omkara Asset Reconstruction Private Limited as "other secured creditor" and Indo Jatalia Holdings Limited as a "Financial Creditor". Consequently, the CoC was re-constituted with (i) Edelweiss Asset Reconstruction Company Limited- 64.97%, (ii) Bank of India- 17.65% and (iii) Indo Jatalia Holdings Limited- 17.38%. Amended constitution of CoC was taken on record by Adjudicating Authority on 29.05.2024. SRA sent a letter dated 15.06.2024 to the Resolution Professional undertaking to rework the amounts payable to various claimants only out of the total proposed plan amount of Rs. 15,41,00,000/-. On 05.07.2024, CoC passed the Resolution to replace the Resolution Professional with Mr. Shashi Bhushan Prasad. Adjudicating Authority allowed IA No.3546 of 2024 permitting replacement of Resolution Professional with Mr. Sashi Bhushan by order dated 18.07.2024. CoC in its 15th meeting held on 16.08.2024 passed a resolution with 100% votes directing the Resolution Professional to file an application for withdrawal of the plan approval application and seeking permission to allow CoC to issue a fresh Form G. On 13.06.2025, Resolution Pr....
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....ew member of the CoC did not have the opportunity to deliberate/assent/dissent to the proposed Resolution plan. iii) Subsequent to the reconstitution of the CoC, an issue regarding the eligibility of the Successful Resolution Applicant was raised and certain procedural irregularities were pointed out in the CIR Process. It was pointed out that while submitting Eol, the Successful Resolution Applicant constituted a consortium of 2 members, whereas, in the list of PRA's only one member of the consortium was included. The same was discussed at length in the 18th and 19th CoC meetings held on 19.04.2025 and 16.05.2025, respectively. Accordingly, the CoC passed a resolution in its 19th meeting to cancel the Letter of Intent dated 30.10.2019 for breach of the conditions laid down under Detailed Invitation for Expression of Interest. In view of the aforesaid, we are of the opinion that the proposed Resolution Plan needs reconsideration. We therefore deem it fit to remand the Resolution Plan to the CoC for its reconsideration. Since the CIRP of the Corporate Debtor was commenced in 2018 and a long time has passed, therefore, the CoC is directed to take a decision in t....
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....of the said claim in the Resolution Plan which has not even been adverted to by the Adjudicating Authority. The claim of the secured creditor who is represented by Omkara Asset Reconstruction Private Limited was very much noticed in the plan. Resolution Applicant being well aware of the pending application before the Adjudicating Authority and has contemplated 'nil' payment to other creditors. Thus, the observations of the Adjudicating Authority that proposed Resolution Plan does not provide for the payment to secured creditors in terms of Section 53 of the Code. The said observations is misplaced. The present is a case where creditors have been dealt in the Resolution Plan and was not a case of liquidation under Section 53. 6.2. Coming to the reason (ii) given by the Adjudicating Authority in paragraph 14, it is submitted that Indo Jatalia Holdings Limited, assignee of SICOM Limited, has been inducted in the CoC only after order passed by the Adjudicating Authority on 24.04.2024. There was no occasion for Indo Jatalia Holdings Limited who has subsequently been come in the reconstituted CoC to have opportunity to deliberate assent or dissent on the plan. The plan having already ....
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....een inducted by 17.38% vote share decided to recall the Resolution Plan approval application and to cancel the letter of intent issued to the SRA which is impermissible in law. The Resolution Plan which was approved by the CoC is binding on the CoC and CoC has no authority or jurisdiction to withdraw from Resolution Plan on any reason. Edelweiss Asset Reconstruction Company Limited and Bank of India still holds 82.62% voting share and by a new member incumbent in the company who came into existence only in the year 2024 can be said to have no authority to take a decision to recall the plan approval application or cancel LoI given to the SRA. The decision of the CoC to recall the plan approval application and to cancel the letter of intent is clearly without jurisdiction and malafide to harm the interest of the SRA. 7. Learned Senior Counsel appearing for Omkara Asset Reconstruction Private Limited submits that Omkara Asset Reconstruction Private Limited whose predecessor IFCI's claim was accepted by the Adjudicating Authority on 24.04.2024 as secured creditor contends that Omkara Asset Reconstruction Private Limited having held secured creditor and the Resolution Plan which does....
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....he Counsel for the parties and perused the record. 12. The Resolution Plan submitted by Appellant was approved with 100% vote share of the CoC in its 8th CoC meeting held on 23.10.2019 with Edelweiss Asset Reconstruction Company Limited having 78.63% voting share and Bank of India having 21.37% voting share. In pursuance of the approval of the plan, Appellant also deposited performance bank guarantee and the performance security and further deposit of Rs.1,54,00,000/- and Rs.1,50,00,000/- in December 2019 and thereafter on 03.01.2020, the Resolution Professional filed an application CA (IBC)/240/PB/2020 for approval of the Resolution Plan which application remained pending and could be decided only by the impugned order dated 14.10.2025. The Adjudicating Authority vide order dated 24.04.2024 disposed of CA No. 702 of 2019 and MA No. 702 of 2019 where the claim of Omkara Asset Reconstruction Private Limited was to be verified as a secured creditor and Indo Jatalia Holdings Limited as a financial creditor. The Resolution Professional in pursuance of the order dated 24.04.2024 verified the claim of Omkara Asset Reconstruction Private Limited (assignee of IFCI) as 'other secured cre....
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....on came to be taken by the CoC in 15th CoC meeting on 16.08.2024 and 20th CoC meeting on 28.05.2025 are clearly affecting the Resolution Plan submitted before the Adjudicating Authority. Both the above decisions of the CoC were in excess of authority and in clear breach of Regulation 18(2) explanation. Learned Counsel for the Appellant is also right in his submission that after approval of the plan by the CoC, the said Resolution Plan is binding on CoC and CoC cannot be allowed to withdraw the Resolution Plan in any manner. 16. Counsel for the Appellant has referred to judgment of the Hon'ble Supreme Court in "Ebix Singapore Pvt. Ltd. vs. Committee of Creditors of Educomp Solutions Limited and Anr.- (2022) 2 SCC 401" where Hon'ble Supreme Court has categorically held that the Resolution Plan approved by the CoC is binding between the CoC and the Resolution Applicant. We may refer to paragraphs 115 and 116 of the judgment of the Hon'ble Supreme Court which is as follows:- "115. While the above observations were made in the context of a scheme that has been sanctioned by the Court, the Resolution Plan even prior to the approval of the Adjudicating Authority is binding int....
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....nd Another- (2025) 4 SCC 354" where the same principle has been laid down in following paragraphs:- "125. In light of the aforesaid, it is clear that the existing insolvency framework does not provide any scope for effecting further modifications or withdrawals of the Resolution Plan approved by the CoC, at the behest of the successful resolution applicant, once the plan has been submitted to the adjudicating authority. The submitted Resolution Plan is binding and irrevocable as between the CoC and the successful resolution applicant in terms of the provisions of the IBC, 2016 and the 2016 Regulations as well. In other words, once a CoC-approved resolution plan is submitted to the Adjudicating Authority i.e., NCLT, it immediately becomes binding on the CoC and the SRA, even if the Adjudicating Authority has not yet given its stamp of approval on the same. While deciding so, this Court re-emphasized the object under Section 31(1) of the IBC, 2016 and observed that once the Adjudicating Authority has approved the plan under Section 31(1) of the IBC, 2016, the Resolution Plan is binding on all the stakeholders including those stakeholders who are not direct participants of th....
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.....1. Proposal for Outstanding Debt 4.1.1.1. This Resolution Plan outlines the payment to be made to creditors and stakeholders of the Corporate Debtor, as follows. Sr. No. Category of Claims Verified Amount Proposed Upfront Payment on Effective Date Proposed Deferred Payment within Deferred Payment Period. A Insolvency and Resolution Process Cost Not Known Actuals as approved by CoC B Payment towards claims 1 Financial Creditors 512,99,39,554.62 1,54,10,000 13,86,90,000 2 Operational Creditors 2A Workmen and Employees Nil Nil* Nil 2B Statutory Dues Nil Nil* Nil 2C Other Operational Creditors 2,500 Nil* Nil 3 Other Creditors (as per Regulation 9A) 15,63,15,276 Nil* Nil Total 512,99,39,554.62 1,54,10,000 13,86,90,000 *The Liquidation value and the Fair Market Value of the Corporate Debtor is not known to the Resolution Applicant. However, in the event pursuant to knowledge of liquidation value if in compliance with the provisions of Section 53 of the IBC, 2016 a....
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....erial Nos.2 and 3, Resolution Applicant shall provide for such allocation which complied with statutory requirement. For finding out as to whether under the Resolution Plan who are the creditors who are entitled for statutory payment, we need to refer Section 30(2). Section 30(2) of the IBC provides as follows:- "30. Submission of resolution plan. - (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 debts of operational creditors in such manner as may be specified by the Board which shall not be less than- (i) the amount to be paid to such creditors in the event of a liquidation of the corporate debtor under section 53; or (ii) the amount that would have been paid to such creditors, if the amount to be distributed under the resolution plan had been distributed in accordance with the order of priority in sub- section (1) of section 53, whichever is higher, and....
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....er Section 30(2)(b), hence, the other creditors are not mandatory required to pay any amount in the Resolution Plan. It may be true that in liquidation under Section 53, a secured creditor will be entitled to receive payment but we in the present case are concerned with the Resolution Plan. Omkara Asset Reconstruction Private Limited who has been admitted in the category of other creditor does not fall in any of the category under Section 30(2)(b) who are mandated statutory payment. We need to notice further provisions of the Resolution Plan. Clause C (iv) & (v) which are as follows:- "C. Financial Creditors (iv) The Resolution Applicant understands that there are two matters pending before the DRT-1, Delhi filed by Sicom Limited for recovery of a certain sum of money from the Corporate Debtor. The Resolution Applicant further understands that Sicom Limited has filed claim before the Resolution Professional in respect of the same amount which Sicom Limited had claimed under the aforementioned pending matter before DRT-1, Delhi. 1. However, the Resolution Professional has rejected the said claim form and against the said rejection, Sicom Limited has filed an applic....
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....r Noida has submitted its claim as financial creditor having security interest. The Resolution Professional did not accept the claim and advice the claim to be filed as operational creditor. In the above case, the Resolution Plan was approved and Greater Noida Authority filed an application for recall of the Resolution Plan which was rejected against which the Appeal was filed. In the above case, the Hon'ble Supreme Court took the view that plan did not meet the requirement of Section 30(2), hence, it was required to be recalled. Recall application filed by Greater Noida was held not barred by time. In paragraphs 54, 54.1, 54.2, 54.3 and 55, following was held by the Hon'ble Supreme Court:- "54. In our view the resolution plan did not meet the requirements of Section 30(2) of the IBC read with Regulations 37 and 38 of the CIRP Regulations, 2016 for the following reasons: 54.1. The resolution plan disclosed that the appellant did not submit its claim, when the unrebutted case of the appellant had been that it had submitted its claim with proof on 30.01.2020 for a sum of Rs. 43,40,31,951/- No doubt, the record indicates that the appellant was advised to submit its c....
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....iced this anomaly in the plan, which vitiates their order. 54.3. Under Regulation 38 (3) of the CIRP Regulations, 2016, a resolution plan must, inter alia, demonstrate that (a) it is feasible and viable; and (b) it has provisions for approvals required and the time- line for the same. In the instant case, the plan conceived utilisation of land owned by the appellant. Ordinarily, feasibility and viability of a plan are economic decisions best left to the commercial wisdom of the COC. However, where the plan envisages use of land not owned by the CD but by a third party, such as the appellant, which is a statutory body, bound by its own rules and regulations having statutory flavour, there has to be a closer examination of the plan's feasibility. Here, on the part of the CD there were defaults in payment of instalments which, allegedly, resulted in raising of demand and issuance of pre-cancellation notice. In these circumstances, whether the resolution plan envisages necessary approvals of the statutory authority is an important aspect on which feasibility of the plan depends. Unfortunately, the order of approval does not envisage such approvals. B....
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....- (2023) 7 SCC 324". The above was a case where Vistara ITCL (India) Limited was secured creditor of the Corporate Debtor to the extent of share pledged to it by the Corporate Debtor. Vistara ITCL (India) Limited did not file claim and the Resolution Plan was approved in which Vistara ITCL (India) Limited claim was not included. The order passed by the NCLT dated 24.08.2020 was affirmed by the NCLAT against which the Appeal was filed. The Hon'ble Supreme Court did not accept the submission of the Appellant to treat it as financial creditor which acceptance required reference of two earlier judgments of the Hon'ble Supreme Court to larger Bench. Hon'ble Supreme Court accepted second option and in paragraphs 41.1, 41.2 and 42 laid down following:- "41.1. First is to treat the secured creditor as a financial creditor of the corporate debtor to the extent of the estimated value of the pledged share on the date of commencement of the CIRP. This would make it a member of the CoC and give it voting rights, equivalent to the estimated value of the pledged shares. However, this may require reconsideration of the dictum and ratio of Anuj Jain [Jaypee Infratech Ltd. (Interim Resoluti....
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....d findings, the impugned judgment [Vistara ITCL (India) Ltd. v. Dinkar Venkatasubramanian, 2020 SCC OnLine NCLAT 654] of NCLAT affirming the view [Corpn. Bank v. Amtek Auto Ltd., 2018 SCC OnLine NCLT 24111] taken by the NCLT is partly modified in terms of our directions holding that Appellant 1-M/s Vistra ITCL (India) Ltd. would be treated as a secured creditor, who would be entitled to all rights and obligations as applicable to a secured creditor in terms of Sections 52 and 53 of the Code, and in accordance with the pledge agreement dated 5-7-2016." 31. Learned Counsel for Omkara Asset Reconstruction Private Limited contended that the submissions advanced by the Learned Counsel for the Appellant that Omkara Asset Reconstruction Private Limited is entitled to nil payment as per the Resolution Plan is incorrect. In the Resolution Plan, IFCI, the predecessor in interest of Omkara Asset Reconstruction Private Limited was proposed to be paid the amount on pro-rata basis. Counsel for Omkara Asset Reconstruction Private Limited has referred to part of the Resolution Plan dealt in heading (C) Financial Creditor (v). According to the Counsel for Omkara Asset Reconstruction Private Limi....
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....0 by application CA No. 240/2020. The same is pending for over 4 years due to various reasons, including the applications filed by SICOM Ltd and IFCI Ltd. (4). We have been keeping abreast of the matter and note that the application of IFCI Ltd numbered as CA-929/2019 has been disposed of by order dated 24.04.2024 by NCLT-VI, New Delhi, even though number has been wrongly written as CA 702/2019 in the order. The application of SICOM Ltd numbered as MA 702/2019 has also been disposed of by order dated 24.04.2024. (6). In para C of our resolution plan under the heading "Financial Creditors', we had referred to the aforesaid 2 applications of SICOM Ltd and IFCI Ltd in sub-paras (iv) and (v) and had stated that in the event that the applications are allowed and they are held as 'Financial Creditor/s", then the RA will pay them in terms of the plan and that the total amount which shall be paid amongst all Financial Creditors in terms of the plan will be Rs. 15,41,00,000/-on pro-rata basis. (7). It had been reiterated in sub-para (vi) of para C of the said resolution plan that "An amount of Rs. 15,41,00,000/- is the maximum payment to be made in this pl....
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.... order dated 24.04.2024. Regulation 12(3) clearly provided that there was no requirement of providing any opportunity to Indo Jatalia Holdings Limited to deliberate assent or dissent to the proposed resolution plan. We have further noticed that after plan approval application was submitted before the Adjudicating Authority on 03.01.2020 as per Regulation 18(2) explanation, CoC could not have taken any decision which may affect the pending Resolution Plan. The second reason thus, also given by the Adjudicating Authority has no substance. 36. Learned Counsel for the Appellant has relied on judgment of this Tribunal in "Jatinder Pal Builders Private Limited vs. Sandeep Goel, Resolution Professional for Brys Hotels Pvt. Ltd.- 2023 SCC OnLine NCLAT 1829" where this Tribunal in paragraph 29 has laid down following:- "29. We take note of the Regulation 12(3) of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 prescribes that decisions taken by the CoC are not invalidated by a subsequent change in the composition of the COC. Therefore, even though the Appellant was not in the COC when the Final Plan was approved, t....
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....Applicant has been defined in following words:- "Resolution Applicant" means Meher Footwear Private Limited, a company incorporated on 13/08/2009 with registered office at Property no. 72/11/2, First Floor, Mundka, West Delhi DL 110041 IN with corporate identification number U19119DL2009PTC193181" 39. When the Resolution Applicant is defined as a company incorporated on 13.08.2019, Resolution Applicant was clearly a corporate entity. The submission noted in the third reason by the Adjudicating Authority that Expression of Interest was given by a consortium is also not correct. Annexure A-6 to the Appeal is a letter dated 22.04.2019 by which Expression of Interest was submitted by Mehar Footwear Private Limited which was signed by Director Mr. Pradeep Kumar Lathar. Letter dated 22.04.2019 given Expression of Interest is as follows:- "FORMAT OF EXPRESSION OF INTEREST Date 22.04.2019 To, Mr. Darshan Singh Anand Resolution Professional of Angad Infrastructure Pvt. Ltd (IP Registration No.: IBBI/IPA-002/IP-N00326/2017-2018/10931) Address registered with IBBI: Eg-46, Inder Puri, New Delhi, National Capital Territory of Delhi,....
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....Signatory: Pradeep Kumar Lathar Designation: Director" "Ref..................... 22.04.2019 To, Mr. Darshan Singh Anand Resolution Professional of Angad Infrastructure Pvt. Ltd (IP Registration No.: IBBI/IPA-002/IP-N00326/2017-2018/10931) Address registered with IBBI: Eg-46, Inder Puri, New Delhi, National Capital Territory of Delhi, 110012. Registered email ID with IBBI: [email protected] Address for Correspondence: Sumedha Management Solutions Private Limited, B-1/12, 2nd Floor, Safdarjung Enclave, New Delhi-110029, India. Email Id for correspondence: cirp.angadinfra@@gmail.com Subject: Expression of Interest ("EOI") for submitting Angad Infrastructure Pvt. Ltd ("Company") undergoing Corporate Insolvency Resolution Process ("CIRP"). Dear Sir, We, Mehar Footwears Pvt. Ltd. through its directors Mr. Pradeep Kumar Lathar & Mr. Dharmender Narula both are submitting our EOI in respect of your advertising & invitation on adellandmarks.com. As per EOI, we are interested in all the four compan....