National Company Law Appellate Tribunal
Commercial Tax Department vs Mr. Sajjan Kumar Dokania & Ors on 23 January, 2023
Author: Ashok Bhushan
Bench: Ashok Bhushan
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Company Appeal (AT) (Insolvency) No. 1412 of 2022
& I.A. No. 4416 of 2022
IN THE MATTER OF:
Commercial Tax Department ...Appellant
Versus
Sajjan Kumar Dokania & Ors. ...Respondents
Present:
For Appellant: Mr. Shashwat Parihar, Mr. Mrinal Elker Mazumdar
and Mr. Shashwat Anand, Advocates.
For Respondents: Ms. Honey Satpal, Advocate for R-1.
Ms. Arti Singh, Mr. Aakashdeep Singh Roda, Ms.
Pooja Singh and Mr. B.P. Singh, Advocates for R-
2&3.
ORDER
23.01.2023: Heard learned counsel for the Appellant. This Appeal has been filed against the order dated 09.09.2022 passed by the Adjudicating Authority by which order the Resolution Plan submitted by the Resolution Professional has been approved. The Appellant - Commercial Tax Department has filed this Appeal challenging the said order. The brief facts of the case which are necessary to be noticed for deciding the appeal are:
(i) The CIRP against the Corporate Debtor commenced by order dated 04.12.2020.
(ii) Publication was made by the Resolution Professional on 08.12.2020. In pursuance of the publication claims were Cont'd.../ 2 submitted which were verified and collated by the Resolution Professional.
(iii) Form G was published on 17.02.2020 inviting Expression of Interest and subsequently, in the CIRP four plans were received.
(iv) In 14th meeting of the CoC dated 25.08.2021, Resolution Plan of M/s Sangeet Television Network Pvt. Ltd. was approved. However, it appears that the Bank Guarantee was not furnished within time, hence, the CoC set aside and cancelled the Resolution Plan.
(v) The Resolution Professional issued fresh Form G on 11.10.2021 and thereafter the in 22nd CoC meeting dated 07.12.2021, the plan of MS Soya Industries in consortium with Mr. Sanjay Chpra was approved with 98.28% votes. The plan did not propose any payment to the Operational Creditors.
(vi) After the approval of the Resolution Plan by the CoC, the Appellant has filed its claim on 01.06.2022 before the Resolution Professional vide Form B. The Resolution Professional communicated the Appellant that their claim cannot be considered at this stage. On 09.09.2022, the Resolution Plan has been approved by the Adjudicating Authority.
(vii) The Appellant filed an application before the Adjudicating Authority challenging the rejection of the claim, which application has also been rejected on 16.06.2022. The Adjudicating Authority Company Appeal (AT) (Insolvency) No. 1412 of 2022 3 while rejecting the application on 16.06.2022 has observed that the claims were reflected in the Information Memorandum. The Adjudicating Authority also observed that the Resolution Professional should have informed the Appellant.
2. Learned counsel for the Appellant challenging the approval of the Resolution Plan contends that in view of the judgment of Hon'ble Supreme Court in "Civil Appeal No. 1661 of 2020, State Tax Officer (1) vs. Rainbow Papers Ltd.", the Appellant being Secured Creditor was entitled to be dealt with as Secured Creditor and to be allocated amount as per Section 53 at par with the Secured Financial Creditors. It is submitted that for the mere fact that Appellant did not file its claim, Appellant shall not be disentitled from distribution as Secured Creditor. It is submitted that the Appellant has filed a claim on 01.06.2022, although by that time the CoC has already approved the Resolution Plan, the plan was not approved by the Adjudicating Authority.
3. Learned counsel for the Respondent refuting the submissions of learned counsel for the Appellant contends that Appellant having not filed any claim within the time, there was no error committed in distribution as per the list of creditors finalised and approved. It is submitted that even the claim was filed by the Appellant in Form B and not filed as Secured Creditor. It is further submitted that the judgment of the Hon'ble Supreme Court in "State Tax Officer (1) vs. Rainbow Papers Ltd." relied by the Appellant cannot benefit the Appellant since in the present case publication was issued on 08.12.2020 whereas the Hon'ble Supreme Court was dealing with a claim which was Company Appeal (AT) (Insolvency) No. 1412 of 2022 4 received prior to notification amending the Regulation, 2016 dated 03.07.2018. It is submitted that the Resolution Applicant has already implemented the plan and amounts have been disbursed and there are no amount left in the kitty out of which claim of the Appellant can be considered.
4. We have considered the submissions of learned counsel for the parties and perused the record.
5. From the facts brought on the record, there is no dispute that at the time when claim was filed by the Appellant on 01.06.2022, the CoC has already approved the Resolution Plan. The judgment of Hon'ble Supreme Court in "State Tax Officer (1) vs. Rainbow Papers Ltd." was considering a claim which were invited on 05.10.2017 which was much prior to amendment in the Regulation, as has been noted in the judgment.
6. It is to be noted that in the facts of the present case, the plan approved has also been implemented and the amount received has been disbursed to the Financial Creditors and other claimants as per the Resolution Plan. The submission of learned counsel for the Appellant that the Appellant being a Secured Creditor as per the law laid down by the Hon'ble Supreme Court in "State Tax Officer (1) vs. Rainbow Papers Ltd." he ought to have been allocated amount as per Section 53 at par with the Secured Financial Creditors cannot be accepted in the facts of the present case. When there is no claim filed by the Appellant within time, no error has been committed by the Adjudicating Authority in approving the Resolution Plan, which was approved by the CoC much prior to filing of the claim by the Appellant. We, thus, are of Company Appeal (AT) (Insolvency) No. 1412 of 2022 5 the view that no relief can be granted to the Appellant in the facts of the present case, hence, we are not inclined to interfere with the order impugned. Appeal is dismissed.
[Justice Ashok Bhushan] Chairperson [Barun Mitra] Member (Technical) Archana/nn Company Appeal (AT) (Insolvency) No. 1412 of 2022