National Company Law Appellate Tribunal
Deputy Commissioner Of Custom Icd Ajni vs Deepak Maini on 11 November, 2022
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
Company Appeal (AT)(Insolvency) No. 666 of 2021
&
I.A. No. 1749 of 2021 & 3454 of 2022
[Arising out of Order dated 02nd January, 2020 passed by the
Adjudicating Authority (National Company Law Tribunal, Principal
Bench, New Delhi) in C.A. No. 1569 (PB)/2019 in Company Petition (IB)
No. 1126(PB)/2018]
IN THE MATTER OF:
Mr. Shivkumar P. Salunkhe,
Deputy Commissioner of Customs, ICD-Ajni
On behalf of O/o
Deputy Commissioner of Customs
Inland Container Depot, Ajni - Mihan, Khapri,
Nagpur (M.S.) - 441108 ...Appellant
Versus
Mr. Deepak Maini
Resolution Professional (RP)
C-100, Sector - 2, Noida
Uttar Pradesh - 201301 ...Respondent
Present:
For Appellant : Ms. Sangeeta Mishra, Advocate
For Respondent : Mr. Mohak Sharma, Advocate
J U D G M E N T
(11th November, 2022) KANTHI NARAHARI, MEMBER (TECHNICAL) Preamble:
The Present Appeal is filed against the Order dated 02nd January, 2020 passed by the Adjudicating Authority (National Company Law Tribunal, Principal Bench, New Delhi) in Company Appeal No. 1569 (PB)/2019 in Company Petition (IB) No. 1126(PB)/2018, whereby the Adjudicating Company Appeal (AT) (Ins.) No. 666 of 2021 1 of 19 Authority has approved the Resolution Plan of the 'Successful Resolution Applicant' in exercise of powers conferred under Section 31 of the I&B Code, 2016.
Brief Facts:
Appellant's Submissions:
2. The Learned Counsel, appearing for the Appellant has submitted that the present Appeal is preferred being aggrieved by the aforesaid order.
3. It is submitted that the Appellant is the Department of Customs and falls under the category of Operational Creditor of the Corporate Debtor since the Corporate Debtor is liable to pay the customs duty.
4. It is submitted that the Corporate Debtor had imported capital goods on 31.08.2010 vide four bills of entry valued at Rs. 9,83,28,413/- at zero rate of duty of customs under EPCG authorization and forgone customs duty Rs.1,37,97,465/-. The Appellant, on 03.08.2017, issued summons to explain the reasons for non-fulfilment of export obligation mandated against EPCG authorization issued to them for duty free import of capital goods. On 01.02.2018, the Chief Operating Officer of the Corporate Debtor appeared and explained that they will deposit Rs.20 lacs on account of customs duty forgone on import under EPCG scheme at nil rate duty of customs duty.
Further it says that the Corporate Debtor is committed to pay the remaining duty also in time. However, the Corporate Debtor deposited only an amount of Rs.90 lacs towards dues of customs duty and failed pay the balance amount of Rs.47,97,465/- along with interest.
Company Appeal (AT) (Ins.) No. 666 of 2021 2 of 19
5. It is submitted that it was the duty of Corporate Debtor to present correct facts and declare to the customs authority about their inability to fulfil export obligation. However, the Corporate Debtor did not come forward to pay such duty voluntarily and executed Bond under Section 143 of the Customs Act, 1962 binding itself for payment of duty and interest in case of failure to meet export obligation cast upon them.
6. While so, insolvency proceedings were initiated against the Corporate Debtor on 03.12.2018 before the NCLT, Principal Bench, New Delhi and IRP was appointed to conduct the affairs of the Corporate Debtor. The IRP made public announcement on 06.12.2018 calling for submission of claims from the stakeholders. The Directorate of Revenue Intelligence issued letter dated 11.07.2019 to the Appellant for recovery of customs duty by filing claim before the IRP. The Appellant filed its claim in Form-B on 24.07.2019 claiming an amount of Rs.47,97,465/- and interest of Rs.66,91,478/-.
7. It is submitted that despite submission of claim before the IRP no communication was received from the IRP. However, on 02.02.2021 the Appellant received a letter from the Monitoring Committee headed by the RP and it was noticed that the Learned Adjudicating Authority has passed an order dated 02.01.2020 approving the Resolution Plan submitted by the RP. In the Resolution Plan the claim of the Appellant shown under the heading as pending litigation as per the Information Memorandum, however, accepted the duty balance as on date was Rs.47,97,465/- however it did not consider the proposed payment towards government dues since the Corporate Debtor is in the knowledge that it owes customs duty to the Company Appeal (AT) (Ins.) No. 666 of 2021 3 of 19 Appellant as on the date of submitting the Resolution Plan, therefore, the Learned Adjudicating Authority ought to have considered that the Appellant made efforts in recovering the government dues from the Corporate Debtor.
8. In view of the reasons as stated above the Learned Counsel has prayed that the appeal be allowed by directing the RP to reconsider the matter afresh by giving due consideration to the Appellant dues. Respondent's Submissions:
9. The Learned Counsel appearing for the Respondent, at the outset, submitted that the appeal against the order approving the resolution plan may be filed on the grounds as enumerated under Section 61(3) of the I&B Code, 2016, however from the grounds of the present Appeal it does not satisfy that it covers the same and deserves to be dismissed.
10. It is submitted that the Resolution plan for the Corporate Debtor was approved by the Committee of Creditors in exercise of the powers enumerated under Section 30 of the I&B Code, 2016 and that the commercial wisdom of the creditors is paramount and cannot be interfered with as held by the Hon'ble Supreme Court in K. Shashidhar Vs. Indian Overseas Bank & Ors. in Civil Appeal No. 10673 of 2018 para 31 & 33.
11. It is submitted that the claim filed by the Appellant is highly belated. It is submitted that pursuant to the commencement of CIRP of the Corporate Debtor dated 03.12.2018, the IRP issued a public announcement dated 06.02.2018 in Form-A as per Section 15 of the Code read with Regulation 6 of the IBBI (Insolvency Resolution Process for Corporate Persons) Company Appeal (AT) (Ins.) No. 666 of 2021 4 of 19 Regulations, 2016, to intimate regarding the CIRP of the Corporate Debtor and to call for the submission of claims. The Respondent received claims from various creditors including Financial and Operational Creditors up to the last date of submission of claims as per the public announcement and the same were verified and collated by the IRP.
12. It is submitted that as per Regulation 12 of CIRP Regulations, a creditor who fails to submit his claim within the stipulated time provided in the public announcement may submit its claim within 90 days from the commencement of CIRP. The 90 days' period of CIRP expired on 03.03.2019 and every claim received till the 90th day was verified and collated. The Appellant filed its claim on 24.07.2019 which is at a highly belated stage of the CIRP and moreover, the claim was filed at a stage where the Resolution Plan was in its final stage of approval from the CoC. After approval of the plan by the CoC in its 9th meeting held on 26.07.2019 the Respondent filed application before the Adjudicating Authority under Section 31(1) of the Code seeking approval from the Adjudicating Authority and the Adjudicating Authority vide its order dated 02.01.2020 (impugned order) approved the plan. The Appellant had only submitted its claim on 24.07.2019 hence the claim of the Appellant did not form part of the Resolution Plan and any claim raised by the Appellant shall stand extinguished. In this regard, the Learned Counsel relied upon the judgment of the Hon'ble Supreme Court in the matter of Ghanshyam Mishra & Sons Pvt. Ltd. Vs. Edelweiss Asset Reconstruction Co. Ltd. in Civil Appeal No.8129 of 2019 dated 13.04.2021, wherein the Hon'ble Supreme Court held that no person will Company Appeal (AT) (Ins.) No. 666 of 2021 5 of 19 be entitled to initiate or to continue any proceedings in respect to a claim which is not part of the Resolution Plan.
13. It is reiterated that the Appellant did not submit its claim within the time limit prescribed under the Code, rather submitted a claim at a highly belated stage of CIRP, hence the claim of the Appellant was never admitted as Operational Creditor in the CIRP of the Corporate Debtor. Admittedly, the claim of the Appellant is not part of the Resolution Plan as approved by the Adjudicating Authority, therefore, the claim of the Appellant stands extinguished. Further, the Appellant has no locus to challenge the Resolution Plan and not entitled to initiate any proceedings such as the present appeal for the reason that the claim is not part of the Resolution Plan. In support of this contention the Learned Counsel relied upon judgment of the Hon'ble Supreme Court in India Resurgence ARC Pvt. Ltd. Vs. Amit Metaliks Ltd. & Anr. in Civil Appeal No. 1700 of 2021 para
10.
14. The Learned Counsel submitted that against the very same impugned order dated 02.01.2020 an appeal was preferred before this Tribunal by PNC Infratech Ltd. Vs. Deepak Maini & Ors. in CA (AT) (Ins) No.143 of 2020 and this Tribunal vide its judgment dated 22.08.2022 dismissed the said Appeal by confirming the impugned order. Therefore, the Learned Counsel submitted that the impugned order dated 02.01.2020 (approval of Resolution Plan) attained its finality and submitted that the present appeal against the same impugned order, becomes Otios and liable to be dismissed. Company Appeal (AT) (Ins.) No. 666 of 2021 6 of 19
15. In view of the reasons as stated above the Learned Counsel prayed this Bench to dismiss the Appeal.
Analysis / Appraisal:
16. Heard the Learned Counsel appeared for the respective parties perused the pleadings, documents and citations relied upon by them. After analysing the pleadings, the moot point is whether the Appellant has made out any prima facie case to allow the Appeal as prayed for.
17. Admittedly, CIRP was initiated against the Corporate Debtor vide order dated 03.12.2018 by the Adjudicating Authority (NCLT), Principal Bench, New Delhi. The IRP issued public announcement on 06.12.2018 in Form-A in accordance with the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. The public announcement was also posted on the IBBI website and the last date for submission of claim was 17.12.2018 i.e. 14 days from commencement of CIRP.
18. The Appellant filed its claim in Form-B dated 24.07.2019 claiming an amount of Rs. 47,97,465/- towards customs duty along with applicable interest i.e. Rs. 66,91,478/-. The Respondent vide its letter dated 02.02.2021 addressed to the Appellant thus stated as under:
"To, The Principal Commissioner of Customs ICD Nagpur Nagpur Ref.: Excise Number - AABCE8195LEM001 Import License No. 0530153233 dated 31.08.2010 Import License No. 0530153232 dated 11.09.2009 Subject: Extinction of Liabilities of Era T & D Limited Company Appeal (AT) (Ins.) No. 666 of 2021 7 of 19
1. Initiation of Corporate Insolvency Resolution Process (CIRP) Proceedings under the Insolvency and Bankruptcy Code, 2016 ("Code, 2016") were initiated against Era T & D Limited by Central Bank of India, before the Learned NCLT, Principal Bench, New Delhi. The Learned NCLT, Principal Bench, New Delhi, vide order dated 03.12.2018 admitted the case and admitted Era T & D Limited into a Corporate Insolvency Resolution Process. Mr. Deepak Maini, was appointed as Interim Resolution Professional to conduct the CIRP vide and said order dated December 03, 2018.
2. Calling of Claims In pursuance provisions of the Insolvency & Bankruptcy Code, 2016, the Resolution Professional undertook the requisite steps as per Regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process of Corporate Persons), 2016 and made a public announcement on 6th December 2018 calling for submission of claims from the stakeholders. The last date for the submission for claims was 17th December 2018. However, no claim was received from your Department / Organisation.
3. Approval of Plan of Shree Metals (Mujbi) Private Limited Subsequently, the Resolution Plan filed by Shree Metals (Mujbi) Private Limited, Nagpur was approved by the Committee of Creditors. The Learned NCLT, Principal Bench, New Delhi vide Order dated 02.01.2020, approved the said Resolution Plan for implementation.
4. Prayer, Reliefs & Concessions Company Appeal (AT) (Ins.) No. 666 of 2021 8 of 19 In relation to 'Any Other Liabilities' the NCLT Approved Resolution Plan has specifically mentioned in Part VIII as 'Prayer, Reliefs & Concessions' which states as follows:
"a. .....
b. .....
c. .....
d. The Learned Adjudicating Authority may kindly give
appropriate directions to various tax authorities including CBDT and CBEC for waiver of any past liabilities, (known, unknown, accused or non-accused irrespective whether claimed or unclaimed from any authority) including but no limited to any potential MAT liability, potential liability under section 56, 50 CA and other sections of the Income Tax Act, interest/penalty etc. which may be levied by any authority upon and in relation to the implementation of this Resolution Plan.
e. The Learned Adjudicating Authority may kindly give appropriate directions to various tax authorities such as GST, Sales Tax, Professional Tax, Sales Tax Deferral Schemes, or any other Taxes (Central or State or local) etc. for waiver of any past liabilities irrespective whether claimed or unclaimed from any authority and including any penal charges for past non- compliance of filings, forms, other returns and statements, etc. relating thereto.
f. The Learned Adjudicating Authority may kindly pass appropriate directions to the Ministry of Corporate Affairs, Government of India, Provident Fund Authorities, Service Tax Authorities, GST Authorities, etc. for waiver of any penal charges for past non-compliance of filing / secretarial obligations.
Company Appeal (AT) (Ins.) No. 666 of 2021 9 of 19 g. The Learned Adjudicating Authority may kindly give appropriate directions to various Tax Authorities permitting the availment of any unavailed benefits such as unabsorbed depreciation, unabsorbed loss, Package Scheme of Incentives (PSI), Input Credits, Tax credits, Tax refunds, etc. relating to the Corporate Debtor.
i. The Learned Adjudicating Authority may approve the fact that the Resolution Applicant shall not be responsible for any litigation, liability and / or dues which have not been brought to the notice of the Resolution Applicant on the date of submitting of the Resolution Plan. The Learned Adjudicating Authority shall approve the express waiver of all such dues, if any.
j. The Learned Adjudicating Authority may approve express waiver of all the liabilities arising from Operational Creditors, other Creditors, Statutory Dues, Litigations, other liabilities, MIDC dues, Gram-panchayat or local body dues- whether claimed or unclaimed, specified, accrued or non accrued which not form part of the Resolution Plan.
k. .....
l. .....
m. ....."
5. Binding Resolution Plan
In accordance with section 31(1) of the Insolvency and Bankruptcy Code, 2016, after the Resolution Plan is approved, the same is binding on all the stakeholders. The said section reads as follows:
"31.(1) If the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of Company Appeal (AT) (Ins.) No. 666 of 2021 10 of 19 creditors under sub-section (4) of section 30 meets the requirements as referred to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, [including the Central Government, any State Government or any local authority to whom a debt in respect of payment of dues arising under any law for the time being in force, such as authorities to whom statutory dues are owed,] creditors, guarantors and other stakeholders involved in the Resolution Plan."
6. Success Resolution Applicant (New Investor) - Not bound by wrongs of earlier Promoters Further, section 32A of the Insolvency and Bankruptcy Code, 2016 provides immunity to the corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process. The said section reads as follows:
(ii) a person with regard to whom the relevant investigating authority has, on the basis of material in its possession reason to believe that he had abetted or conspired for the commission of the offence, and the submitted or filed a report or a complaint to the relevant statutory authority or Court.
Explanation. - For the purposes of this sub-section, it is hereby clarified that, -
(i) an action against the property of the corporate debtor in relation to an offence shall include the attachment, seizure, retention nor confiscation of such property under such law as may be applicable to the corporate debtor;
(ii) nothing in this sub-section shall be construed to bar an action against the property of any person, other than the Company Appeal (AT) (Ins.) No. 666 of 2021 11 of 19 corporate debtor or a person who has acquired such property through corporate insolvency resolution process or liquidation process under the Code and fulfils the requirements specified in this section, against whom such an action may be taken under such law as may be applicable.
(3) Subject to the provisions contained in sub-sections (1) and (2), and notwithstanding the immunity given in this section, the corporate debtor and any person who may be required to provide assistance under such law as may be appliable to such corporate debtor or person, shall extend all assistance and co-operation to any authority investigating an offence committed prior to the commencement of the corporate insolvency resolution process."
7. Constitution of Monitoring Committee vide orders of Hon'ble NCLT In the said order of Hon'ble NCLT at para no. 59 at page no. 37 it is mentioned that:
"We also approve appointment of monitoring committee as agreed between the parties to monitor and supervise the implementation of the Resolution Plan. We also grant Liberty to the monitoring committee to apply to the Tribunal for any further direction in order to ensure effective implementation of the plan, if such a necessity arises."
8. NCLT Authorizing - Monitoring committee to write to concerned authorities for granting reliefs Further, in the order of Hon'ble NCLT at para no.60 at page 37 it is mentioned that:
"In respect of the reliefs and concession sought for in the Plan which are beyond the jurisdiction of this Tribunal, Monitoring Company Appeal (AT) (Ins.) No. 666 of 2021 12 of 19 Committee along with the Resolution Applicant can make such claim before the authorities which shall be considered in accordance with law."
9. Decision expected from Authorities Accordingly, with respect to above mentioned Sections and order passed by Hon'ble NCLT, we would request that all the liabilities of Era T & D Limited relating to period up to 02.01.2020, not covered under the resolution plan, stand extinguished completely.
10. Please send your confirmation for filing necessary report before Hon'ble NCLT, Principal Bench, New Delhi.
For Monitoring Committee - Approved by Hon'ble NCLT"
19. From the contents of the above letter the Respondent specifically stated that the plan with respect to the Corporate Debtor was approved by the Adjudicating Authority vide its order dated 02.01.2020 (impugned in this Appeal). Further, it is stated that the liabilities of the Corporate Debtor relating to period up to 02.01.2020, not covered under the Resolution Plan, stand extinguished completely.
20. The contention of the Appellant is that the Appellant being an Operational Creditor of the Corporate Debtor filed its claim and is entitled to claim from the Corporate Debtor. Per contra the stand of the Respondent is that the Appellant has not filed its claim within the time as prescribed under the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, therefore, the claim is barred by limitation, accordingly, the claim has not been considered.
Company Appeal (AT) (Ins.) No. 666 of 2021 13 of 19
21. It is an admitted fact that the Appellant filed its claim on 24.07.2019 whereas the public announcement was made on 06.12.2018 and it has been widely circulated in the English and Hindi newspapers and also posted on the IBBI website. The last date for submission of claim was 17.12.2018, however, the Appellant has not filed its claim within the time.
22. In this regard, it is apt to refer Rule 12 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, for better appreciation, the said Rule deal with 'submission of proof of claims'. Sub-rule (2) thereof thus read as under:
"(2) A creditor, who fails to submit claim with proof within the time stipulated in the public announcement, may submit the claim with proof to the interim resolution professional or the resolution professional, as the case may be, on or before 90th day of the insolvency commencement date."
23. From the above Rule, the claim has to be submitted on or before 90th day of the insolvency commencement date i.e. in this case the insolvency commencement date is 03.12.2018 and the 90th day expires on 03.03.2019, however, the appellant admittedly filed its claim on 24.07.2019, which is beyond the period prescribed under the Rules.
24. From the perusal of copy of the resolution plan which is enclosed as Annexure-H at page 130 para 4.09 under the heading Litigation the status of the Appellant has been mentioned as under:
"4.09 LITIGATIONS Company Appeal (AT) (Ins.) No. 666 of 2021 14 of 19 The liabilities under Litigation Category could not be ascertained specifically even though the following litigations are stated to be pending as per Information Memorandum:
• DRI:
The company had executed bonds amounting to
Rs.1,42,72,727/- in favor of Judicational Deputy
Commissioner of Customs, against import of capital goods at concessional rates EPCG scheme for which the company has agreed to fulfil export obligation for Rs.8,56,36,362/- within a period of six years from the date of issue of respective EPCG license, out of that company ha paid Rs.90,00,000/- till 3rd December 2018.
Import Custom Duty saved 137,97,465/- Duty paid so far - 90,00,000/-
Duty Balance as on date 47,97,465/-"
25. In any case, the claim of the Appellant was listed under the category of pending litigation in the Resolution Plan.
26. Whilst the facts leading to passing of the order (impugned) dated 02.01.2020 is that the Respondent (RP) filed an application under Section 30(6) read with Section 60(5) of the I&B Code, 2016 seeking approval of the Resolution Plan under Section 31 of the Code read with Regulation 39 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 in respect of the Corporate Debtor. The Adjudicating Authority after satisfying that the plan is incompliance of sub-section (2) of Section 30 and meets the requirement and as approved by the Committee of Creditors under sub-section (4) of Section 30 approved it vide its order dated 02.01.2020. The Adjudicating Authority at para 55 of the order dated 02.01.2020 stated that Company Appeal (AT) (Ins.) No. 666 of 2021 15 of 19 the Resolution Plan has been unanimously approved with 100% voting share much above the statutory requirement of 66% in terms of Section 30(4) of the Code and has the requisite statutory voting share. Further, it is stated that the decision of the Committee of Creditors is a reasoned and self- speaking one as required under proviso to Regulation 39(3) of the CIRP Regulations, 2016. Further, at para 57 it is stated that "it is well settled proposition of law that commercial and business decisions of Committee of Creditors are not open to judicial review. The Adjudicating Authority cannot enquire into the commercial wisdom of Committee of Creditors. The ground for rejection is limited to the matter specified under Section 30(2). It is however reiterated that the resolution plan in question meets the requirements specified in Section 30(2) of the Code and the reasoned commercial decision of Committee of Creditors is neither discriminatory nor perverse" with the aforesaid observations the plan has been approved.
27. Once the plan is approved by the Adjudicating Authority under Section 31(1) of the Code, it shall be binding on the Corporate Debtor and its employees, members, creditors (including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force, such as authorities to whom statutory dues are owed,) guarantors and other stakeholders involved in the Resolution Plan.
28. While matter stood thus, the Learned Counsel for the Respondent filed an application being I.A. No. 3454 of 2022 before this Tribunal with a prayer to allow the Applicant/ Respondent and to take on record the judgment dated Company Appeal (AT) (Ins.) No. 666 of 2021 16 of 19 22.08.2022 passed by this Tribunal in the matter of PNC Infratech Limited Vs. Deepak Maini & Ors. in CA (AT) (Ins) No. 143 of 2020. The Appellant viz. PNC Infratech Ltd. in the above appeal challenged the very same (impugned order) dated 02.01.2020 passed by the Adjudicating Authority, NCLT, Principal Bench, New Delhi and the reliefs sought by the Appellant therein that the Appellant was one of the Prospective Resolution Applicant, whose plan has been rejected by the CoC and the CoC approved the plan of the Successful Resolution Applicant i.e. Shree Metals (Mujbi) Pvt. Ltd. This Tribunal after hearing the parties passed detailed judgment dismissing the said Appeal on 22.08.2022 by holding as under:
"39. This Tribunal in clear terms observes and holds that there is no contravention in approving the Resolution Plan either by the CoC or by the Adjudicating Authority. The plan approved is in accordance with law and there is no material irregularity and cannot go into the technical issues with regard to evaluation and score matrix which is in the exclusive domain of the CoC."
29. This Tribunal takes into consideration the above judgment and reiterates that the plan approved by the Adjudicating Authority on 02.01.2020 is in accordance with law and no interference is called for. Moreover, the approval of plan has attained its finality as far as this Tribunal is concerned.
30. It is well settled that the commercial wisdom of the Committee of Creditors is paramount and cannot be interfered with by the Adjudicating Authority or this Tribunal. The Hon'ble Supreme Court in Maharashtra Company Appeal (AT) (Ins.) No. 666 of 2021 17 of 19 Seamless Ltd. & Ors. Vs. Padmanabhan Venkatesh & Ors. in Civil Appeal No. 4242 of 2019 dated 22.01.2020 para 28 held as under:
"28. The Appellate Authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the Adjudicating Authority has to be satisfied that the requirement of sub- section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the Adjudicating Authority in limited judicial review has been laid down in the case of Essar Steel (supra), the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the Appellate Authority ought to have interfered with the order of the Adjudicating Authority in directing the successful Resolution Applicant to enhance their fund inflow upfront."
31. Admittedly, the Appellant has not filed its claim within the time and the claim is time barred. The plan has been approved by the Adjudicating Authority on 02.01.2020 and this Tribunal in the judgment in CA (AT) (Ins) No. 143 of 2020 upheld the plan approved by the Adjudicating Authority. Company Appeal (AT) (Ins.) No. 666 of 2021 18 of 19
32. In view of the decision of the Hon'ble Supreme Court, it is settled proposition of law that the commercial wisdom of the Committee of Creditors in approving or rejecting a Resolution Plan is essentially based on a business decision which involves evaluation of Resolution Plan based on its feasibility and viability of the Corporate Debtor.
33. In view of the aforesaid reasons this Tribunal comes to an irresistible and inescapable conclusion that the Appellant has failed to make out any case either on law or on facts.
Conclusion:
34. The Company Appeal is without merit and accordingly, the same is hereby dismissed but no order as to costs. Applications, if any, pending stand closed.
[Justice Rakesh Kumar Jain] Member (Judicial) [Kanthi Narahari] Member (Technical) pks Company Appeal (AT) (Ins.) No. 666 of 2021 19 of 19