TaxTMI 
TaxTMI 
2026 (8) TMI 1079
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....Thakur was appointed as an Interim Resolution Professional which was later confirmed by the CoC; b) On 12.04.2019 the appellant/resolution applicant submitted resolution plan and it was approved by the CoC on 10.04.2019; c) On 12.04.2019 vide CA No.274/2019 the application was filed alongwith resolution plan before the Ld. Adjudicating Authority for its approval; d) On 20.07.2019 the workmen at Units I and II went on strike and thus halted the entire operation; e) IA No.45/2020 and 46/2020 were filed by the workmen challenging the resolution plan being non-compliant under Section 53 of IBC. The Ld. Adjudicating Authority directed the appellant to file an affidavit regarding PF and gratuity dues; 3. The resolution plan so submitted by the appellant initially, gave workers only 54.42% of their dues and claim of PF plus interest etc only to an extent of 54.42%. 4. The learned Adjudicating Authority on 08.09.2022 thus directed the appellant to file an affidavit regarding PF and gratuity, which affidavit was rather filed on 21.10.2022. 5. Thereafter on 01.12.2022, the Ld. Adjudicating Authority referred the resolution plan to CoC to consider ....
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....est as per the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 0952. 4. That the Resolution Professional has further informed that a total amount of Rs. 22.28 crores is payable against Gratuity as per the provisions of Payment of Gratuity Act, 1972 5. That the Resolution Professional has further informed that the amount due against Provident Fund and Gratuity as per the Information Memorandum is Rs. 10.09 crores and Rs. 22.28 crores 6. That the total amount due under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and Payment of Gratuity Act, 1972 in total is Rs. 36.48 crores as informed by Resolution Professional. Hence, the total amount payable to the Creditors as per the Resolution Plan will have to be deducted and the plan will be modified accordingly. 7. Hence it is required that a revised resolution plan will have to be submitted to the Resolution Professional in terms of the liberty granted by this Hon'ble tribunal as sought by my legal counsel. 13. That from perusal of the Affidavit of the Appellant it is clear that the Appellant has on its own sought the revision of the plan. 14. On 01.1....
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.... be recalled at this stage of the matter as the said decision was taken at about couple of years back. That vide same order Ld. Adjudicating Authority held that: We are of the view that value in the increase of the land will result in viable liquidation. Therefore, the applicant is directed to put an end to CIRP Process and consider to opt for liquidation process. The Liquidator can be chosen from the list of penal recommended by the IBBI. The Liquidator may first make an attempt to sell Corporate Debtor as a going concern. Let RP serve copy of this order to the creditors (Erstwhile members of CoC) That consequently all applications related to the resolution plan were dismissed as vide the same order in IA No.280 (CH) of 2023 filed by the appellant was dismissed. 20. On the above facts it was argued by the appellants the CoC after having approved the plan could not have reopened the commercial bargain purely because of change in law regarding 100% payment of workmen/employee statutory dues, like provident fund, gratuity and retiral benefits. It was argued the amount of Rs. 170 crores was full and final payment towards all financial and operational cred....
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....d to appreciate the limited scope of the order dated 01.12.2022; the binding nature of CoC's earlier approval dated 10.04.2019 and thus wrongly rejected the plan. 27. We have heard the arguments advanced by both the counsels. 28. We have gone through the arguments and records and as the appellant has limited its challenge only to the impugned order passed while dismissing the I.A. No. 280 of 2023 but it is relevant to mention that the order dated 08.09.2022 passed by Ld. NCLT was not challenged by the appellant and it has attained finality. In the said order dated 08.09.2022 the Ld. NCLT had given specific directions to the appellant to submit an affidavit stating the Appellant will pay the contribution and other sums due from the Corporate Debtor under any provision of the Employees Provident Funds and Miscellaneous Act, 1952 or the Scheme or the Pension scheme or the Insurance scheme, and under the Payment of the Gratuity Act, 1972, as the case may be, in respect of the period up to the date of approval of the Resolution Plan by the NCLT. 29. On 21.10.2022 Appellant filed its affidavit in terms of order dated 08.09.2022. In the said affidavit the Appellant had specifical....
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....ommercial wisdom regarding accepting/ rejecting the Resolution Plan is "Non-Justiciable". 35. Further it is settled proposition of law as laid down by this Tribunal in Sanjay Dave vs Andhra Bank Ltd. and Ors. Company Appeal (AT) (Insolvency) No.1128 of 2024: - "that after approval of the resolution plan by the CoC, the CoC can always change its mind and pass a resolution liquidating the Corporate Debtor as long as the resolution plan is not approved by the Adjudicating Authority. The Adjudicating Authority had not committed any error in arriving at the above finding since there was no approved resolution plan available with the RP to be placed before the Adjudicating Authority. The Adjudicating Authority was also of the view that with further delay, the assets of the Corporate Debtor would have suffered from economic depreciation as the liquidation value goes down with the efflux of time. A long time had elapsed since commencement of insolvency on 09.08.2018 and we are inclined to agree with the Adjudicating Authority that Corporate Debtor should go into liquidation forthwith in the interest of all stakeholders. The Adjudicating Authority also was of the view that it ha....
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....solution Plan can be done before its approval by the Adjudicating Authority. This implies that even after approval of the Resolution Plan by the COC and laying it before the Adjudicating Authority, the COC can change its mind and pass a Resolution liquidating the Corporate Debtor subject to only exception that such course cannot be adopted after its confirmation i.e. after approval of the Resolution Plan by the Adjudicating Authority". 38. At this stage of the proceeding the affidavit dated 09.11.2024 filed by the Appellant, cannot be considered as the resolution plan was rejected on 28.12.2022 nearly about 4 years ago, hence the commercial wisdom of the CoC in rejecting the plan of the appellant cannot be reviewed. 39. The case laws relied upon by the Appellant i.e. Ebix Singapore Pvt Ltd, Express Resorts and Hotels Ltd, Hem Singh Bharana (supra) are not applicable in the present matter as it is not a case of unilateral withdrawal of plan by CoC upon receiving of any better resolution plan. In the present matter vide order dated 08.09.2022, while considering the earlier proposed plan of the Appellant, the Ld. NCLT issued specific direction(s) to the Appellant to submit an af....