Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1385 OF 2022
AJAY GUPTA APPELLANT(S)
VERSUS
PRAMOD KUMAR SHARMA RESPONDENT(S)
O R D E R
Dinesh Maheshwari, J.
Having heard learned senior counsel for the appellant at
sufficient length and having perused the material placed on
record, we do not feel persuaded to entertain this appeal under
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Section 62 of Insolvency and Bankruptcy Code, 2016 by one of
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the resolution applicants in the corporate insolvency
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resolution process concerning the corporate debtor-B.B. Foods
Pvt. Ltd.
The appellant seeks to question the judgment and order
dated 13.01.2022 as passed by the National Company Law
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Appellate Tribunal, Principal Bench, New Delhi in Company
Appeal (AT) Insolvency No. 35 of 2022 whereby, the Appellate
Tribunal declined to interfere in the order dated 13.12.2021
passed in I.A. No. 367 of 2021 in CP No.(IB)349/ALD/2018 by the
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National Company Law Tribunal, Allahabad Bench, Allahabad by
1 Hereinafter also referred to as “the Code’.
2 A consortium led by the appellant (comprising of a private limited company and
the appellant himself) has been the resolution applicant.
3 ‘CIRP’, for short.
4 Hereinafter also referred to as ‘the NCLAT’ or ‘the Appellate Tribunal’.
5 Hereinafter also referred to as ‘the NCLT’ or ‘the Adjudicating Authority’.
Signature Not Verified
Digitally signed by
Rajni Mukhi
Date: 2022.03.02
16:52:09 IST
Reason:
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which, the Tribunal granted the prayer of the appellant to
amend his resolution plan dated 22.10.2021 but, at the same
time, also allowed the other resolution applicant to place any
modification in their resolution plan before the Committee of
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Creditors .
Shorn of unnecessary details, the relevant background
aspects for the present purpose are that as regards the CIRP in
question, there had been two resolution applicants, the
consortium led by appellant being one of them. It appears that
there had been deliberations in the CoC over the resolution
plans submitted by the appellant and other resolution
applicant; and in the minutes of eighth meeting dated
02.11.2021, the CoC indicated its deliberations/observations
concerning the two resolution plans in the following terms:
“At this stage, the representative of Resolution
Applicant, namely, Sirius Foods Private Limited was
invited to have detailed deliberations on the
Resolution Plan submitted by Sirius Foods Private
Limited and during the course of deliberations,
defects/technical difficulty was pointed out and
thereafter, representative of Resolution Applicant,
namely, Sirius Foods Private Limited assured that all
defects would be removed to the extent possible and
to the satisfaction of the COC and Resolution
Professional. No further objections/issues were
raised by any other participant of the meeting and
accordingly, representative of Resolution Applicant,
namely, Sirius Foods Private Limited left the meeting
thereafter.
At this stage, the representative of Resolution
Applicant, namely, consortium of Prabhat Warehouse
and Cold Storage Limited and Mr. Ajay Gupta was
invited to have detailed deliberations on the
Resolution Plan submitted by, consortium of Prabhat
Warehouse and Cold Storage Limited & Mr. Ajay Gupta
and during the course of deliberations,
defects/technical difficulty were pointed out
and thereafter, representative of Resolution
Applicant, namely, consortium of Prabhat Warehouse
6 ‘CoC’, for short.
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and Cold Storage Limited and Mr. Ajay Gupta assured
that all defects will be removed to the extent
possible and to the satisfaction of the COC and
Resolution Professional and left the meeting room.
No further objections/issues were raised by any other
participant of the meeting and accordingly,
representative of the said Resolution Applicant, left
the meeting thereafter.”
After the aforesaid deliberations/observations of CoC, the
appellant sent a communication dated 18.11.2021 and annexed
therewith his affidavit dated 17.11.2021 in the so-called
‘clarification in respect of the resolution plan’. The contents
of this affidavit dated 17.11.2021 read as under: -
“AFFIDAVIT
I, Ajay Gupta, a director in Prabhat Warehouse Cold
Storage Private Limited and on behalf of Ajay Gupta
individual, which form a consortium and being the
lead member of the said consortium, do hereby affirm
as follows:
1. The consortium of Prabhat Warehouse Cold Storage
Private Limited and Ajay Gupta have submitted a
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resolution plan dated 27 September, 2021 which was
further amended vide Resolution Plan dated
nd
22 October, 2021. In the amended resolution plan,
payment schedule and the resolution of the corporate
debtor has been mentioned, which we would be
honouring at the earliest.
2. That while submitting the amended resolution plan,
I was under certain apprehensions regarding
litigations being involved in the process of
resolution of the corporate debtor, but now after
seeking legal advice on behalf of the consortium,
state that the amount of payment to be made under the
resolution plan of Rs. 16.10 crores will remain the
same and is not being modified, however I’m putting
forth my gesture of making the payment upfront, if
the bank allows the same within 90 days of the
receipt of the order of Hon’ble NCLT approving our
resolution plan, as I would be taking the possession
of the corporate debtor on the payment of upfront
amount of resolution amount i.e. Rs.16.10 crore.
3. Our payment of upfront amount under the resolution
plan is in no way going to modify the plan and I am
submitting this affidavit so to clear my point.”
It appears that the appellant’s proposal for such
modification/amendment of the resolution plan was declined by
the resolution professional. Thereupon, the appellant
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approached the Adjudicating Authority by filing I.A. No. 367 of
21 in C.P. No. (IB) 349/ALD/2018. The Adjudicating Authority
took note of the submissions made on behalf of the appellant
and passed the order dated 13.12.2021 granting the prayer of
the appellant but, at the same time, correspondingly allowed
the other resolution applicant to place any modification in
their submitted resolution plan before CoC so as to provide
level playing field. The order dated 13.12.2021 so passed by
the Adjudicating Authority reads as under:-
“I.A. No. 367/2021
Ld. Counsel for the applicant present. Ld.
Counsel for the CoC present. Ld. Counsel for the RP
present. Ld. Senior Counsel for the other Resolution
Applicant whose plan is also being considered by the
CoC present.
This is an application filed by one of the
Resolution Applicant seeking to amend the final
Resolution Plan dated 22.10.2021 submitted by the
applicant to make the following amendments:-
(a) To uncaps the CIRP costs on conditions
stated therein;
(b) To reduce term of the plan from 180 days
to 90 days.
At this point of time, we are conscious of the
fact that the CIRP period will come to end on
06.01.2022 and a decision on the resolution plans
will have to be taken first by the CoC and,
thereafter by this Adjudicating Authority.
Therefore, the ends of justice will be met if we
direct the applicant herein to place the affidavits
at Page Nos. 290 to 298 alongwith the covering letter
addressed to the sole member of the CoC for
consideration. Since we do not wish to disturb level
playing field, the other resolution applicants whose
plans are also being considered will also be
permitted to place any modification in their
submitted resolution plan before the CoC for its
consideration. Such modifications shall be
communicated to the CoC, no later than 48 hours from
now.
Accordingly, IA No. 367/2021 is disposed of.”
Thereafter, the resolution plans were considered by the
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CoC on 21/22.12.2021 and the plan of the other resolution
applicant was approved.
The appellant, on the other hand, attempted to question
the said order dated 13.12.2021 before the Appellate Tribunal.
The Appellate Tribunal took note of the grievance of the
appellant that its resolution plan came to be known to everyone
and hence, no opportunity should have been given to the others
to modify.
The Appellate Tribunal found no substance in those
submissions while taking the view that the Adjudicating
Authority had passed the impugned order so as to maintain the
level playing field. The Appellate Tribunal also took note of
the fact that the resolution plans had already been considered
by CoC on 21.12.2021.
We may also indicate that earlier, the said order dated
13.01.2022 as passed by the Appellate Tribunal was sought to be
questioned before us by the erstwhile director of the corporate
debtor but, we declined to accede locus to the said appellant
and hence, the said appeal [@ Dy. No. 2729 of 2022] was
dismissed, while rejecting the application seeking permission
to file appeal, by our order dated 07.02.2022.
Now, the said order dated 13.01.2022 of the Appellate
Tribunal is sought to be questioned by the unsuccessful
resolution applicant.
The learned senior counsel has painstakingly taken us
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through the relevant contents of the Request for Resolution
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Plan as issued by the Resolution Professional as also the
minutes of the meeting of CoC and the affidavit filed by the
appellant. Learned counsel would strenuously contend that so
far as the appellant is concerned, it had not been a case of
modification of the resolution plan because modification as
such was not even permissible under the conditions of RFRP; and
the submissions of the appellant by way of the affidavit dated
17.11.2021 had only been to meet with the requirements of the
COC, as reflected in the minutes of the meeting dated
02.11.2021 and for such a proposition, there was no
justification in granting any liberty to the other resolution
applicant to modify its resolution plan. Learned senior counsel
has also contended that appellant had been rather prejudiced in
the matter for the reason that the terms of its resolution plan
became known to the other resolution applicant when the matter
was examined by the Adjudicating Authority while passing order
dated 13.12.2021.
We do not find the submissions aforesaid making out a
case for interference. This is for the simple reason that on a
perusal of the order dated 13.12.2021, this much is clear that
certain key features/stipulations of the resolution plan were
sought to be amended by the appellant. Whether it was done in
response to the requirement of the CoC or otherwise, the fact
of the matter remains that there was going to be modification
of the relevant terms of the resolution plan of the appellant.
7 ‘RFRP’, for short.
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When that was being permitted at the request of the appellant
himself, we cannot find fault in the Adjudicating Authority
having passed an order so as to balance the position of the
respective parties and to provide level playing field by
granting corresponding permission to the other resolution
applicant to place its modification for consideration of CoC.
So far as affidavit dated 17.11.2021 is concerned, though
the appellant stated in paragraph 3 thereof that the payment of
upfront amount under the resolution plan was in no way going to
modify the plan but, that had only been an expression of the
understanding of the appellant about the legal effect of the
propositions put forward by him, which included the
modification of the term of plan from 180 days to 90 days. Such
a proposition could not have been treated as formal or
innocuous or of no material bearing.
So far as the factor relating to divulging of the contents
of the plan is concerned, the same had been of the making of
the appellant himself. If the appellant had chosen to
divulge/disclose the terms of its resolution plan before the
Adjudicating Authority, there had not been any fault on the
part of the resolution professional or the CoC or the other
resolution applicant.
Thus, the view taken by the Adjudicating Authority as also
by the Appellate Tribunal appears to be reasonable and sound,
calling for no interference.
Before concluding on the matter, we need to indicate two
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other relevant factors concerning this matter. One is that the
other resolution applicant, whose resolution plan has been
accepted by the Committee of Creditors, is not before us and
has not been impleaded as a party respondent in this appeal.
Hence, no order prejudicial to the interest of the successful
resolution applicant could be passed in this appeal. Secondly,
the matter would nevertheless require further processing before
the Adjudicating Authority; and for that matter, we are
informed that the approval of the Committee of Creditors has
already been placed before the Adjudicating Authority.
Taking note of all the facts and circumstances of the
case, while declining to interfere in this appeal, we leave all
the relevant aspects of the matter open for examination by the
Adjudicating Authority but, strictly in accordance with law.
Subject to the observations foregoing, this appeal stands
dismissed.
...................J
.
(DINESH MAHESHWARI)
....................
J.
(VIKRAM NATH)
New Delhi;
February 25, 2022.
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