Supreme Court - Daily Orders
M/S. Afita Constructions Pvt. Ltd vs Dr Gv Narsimha Rao on 28 July, 2025
Author: Sanjay Kumar
Bench: Sanjay Kumar
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 9819-9820/2024
M/S. AFITA CONSTRUCTIONS PVT. LTD. ..... APPELLANT(S)
VERSUS
DR GV NARSIMHA RAO & ANR. ..... RESPONDENT(S)
O R D E R
1. These appeals, filed under Section 62 of the Insolvency and Bankruptcy Code, 20161, assail the order dated 20.10.2023 in Company Appeal (AT)(CH)(INS) No. 326 of 2023 and the order dated 21.06.2024 in I.A. No. 528 of 2024 in Company Appeal (AT)(CH)(INS) No. 326 of 2023, passed by the National Company Law Appellate Tribunal2, Chennai.
2. The appellant, M/s. Afita Constructions Pvt. Ltd.3, being an operational creditor, initiated the corporate insolvency resolution process against the corporate debtor, Neoaska Pharma Private Limited, under Section 9 of the IBC, in Company Petition IB No. 241/2021 before the National Company Law Tribunal4, Hyderabad Bench-1. After culmination of the said process, the Resolution Professional, respondent No.1 herein, filed I.A.(IBC) No. 1344/2022 in CPIB No. 241/2021 before the NCLT seeking approval of the Signature Not Verified Digitally signed by resolution plan submitted by M/s. Madhya Pradesh Waste Management babita pandey Date: 2025.07.29 19:18:32 IST Reason: 1 For short “IBC” 2 For short “NCLAT” 3 For short, “ACPL” 4 For short “NCLT” 2 Private Limited5. At that juncture, the appellant, ACPL, filed Intervention Petition (IBC) No. 7/2022 in the aforesaid I.A.(IBC) No. 1344/2022 and also I.A.(IBC) No. 1410/2022, seeking permission to independently file a resolution plan of its own.
3. By way of the common order dated 28.06.2023, the NCLT, Hyderabad Bench-1, dismissed Intervention Petition (IBC) No. 7/2022 and I.A.(IBC) No. 1410/2022 filed by the appellant, ACPL. Separately, the NCLT passed an order on the very same day, that is, 28.06.2023, allowing I.A.(IBC) No. 1344/2022 filed by the Resolution Professional, thereby approving the resolution plan filed by MPWMPL.
4. Surprisingly, the appellant, ACPL, chose to file appeals only against the common order dated 28.06.2023 dismissing its applications, i.e., Intervention Petition (IBC) No. 7/2022 and I.A. (IBC) No. 1410/2022. Significantly, it did not file an appeal at that point of time against the separate order dated 28.06.2023, allowing I.A.(IBC) No. 1344/2022 filed by the Resolution Professional, and approving the resolution plan of MPWMPL. It was only on 01.12.2023 that the appellant, ACPL, chose to file a belated appeal, viz., Company Appeal (AT)(CH)(INS) No. 3/2024, before the NCLAT, Chennai, against the said order. This appeal was rejected on the ground of delay, vide order dated 22.01.2024.
5. Earlier, by common order dated 20.10.2023, the NCLAT, Chennai, had dismissed Company Appeal (AT)(CH)(INS) No. 326 of 2023 and Company Appeal (AT)(CH)(INS.) No. 331 of 2023 filed by the 5 For short, “MPWMPL” 3 appellant, ACPL, against the common order dated 28.06.2023 of the NCLT, Hyderabad Bench-1, dismissing its Intervention Petition (IBC) No. 7/2022 and I.A.(IBC) No. 1410/2022.
6. Aggrieved by this common order of dismissal dated 20.10.2023 passed by the NCLAT, Chennai, the appellant, ACPL, filed Civil Appeal Nos. 6402-6403/2024 before this Court. It filed a separate appeal, being Civil Appeal (Diary) No. 6745/2024, against the order dated 22.01.2024 passed by the NCLAT, rejecting its appeal against the approval of the resolution plan on the ground of delay.
7. These three appeals came before this Court on 14.05.2024. Taking note of the submission made to the effect that the operational creditors were being paid less than the liquidation value that would be payable under the IBC, Civil Appeal Nos. 6402-6403/2024 were disposed of on that very day, leaving it open to the appellant, ACPL, to file a review application before the NCLAT, Chennai. Insofar as the separate appeal, being Civil Appeal (Diary) No. 6745/2024 was concerned, this Court accepted the request of the learned senior counsel appearing for the appellant, ACPL, and permitted it to withdraw the said appeal.
8. Pertinent to note, the above order dated 14.05.2024 was passed on the very first day of the hearing of the appeals and was, therefore, in the nature of an ex parte order. However, by virtue of the liberty granted by this Court, the appellant, ACPL, filed an application in I.A. No. 528/2024 in Company Appeal (AT)(CH)(INS) No. 326/2023 before the NCLAT, Chennai, seeking recall of the order dated 20.10.2023. This application came to be dismissed on 4 21.06.2024 on the ground that the NCLAT had no power to review its decisions under the IBC.
9. The present appeals filed by the appellant, ACPL, challenge the common order dated 20.10.2023 as well as the order dated 21.06.2024 passed by the NCLAT, Chennai.
10. Having heard Mr. Nakul Dewan, learned senior counsel, appearing for ACPL, Mr. S. Niranjan Reddy, learned senior counsel, appearing for MPWMPL, and Mr. Krishna Dev Jagarlamudi, learned counsel, appearing for the Resolution Professional, we must first note certain crucial facts.
11. The appellant, ACPL, did not choose to file an appeal within time against the order dated 28.06.2023 passed by the NCLT, Hyderabad Bench-1, approving the resolution plan of MPWMPL. The appeal that it filed belatedly came to be dismissed on that short ground and it attained finality, as the civil appeal preferred against the said order was withdrawn by the appellant, ACPL, be it for whatever reason. In effect, the order dated 28.06.2023 passed by the NCLT, Hyderabad Bench-1, approving the resolution plan has attained finality as it was never subjected to challenge by way of appropriate proceedings within time.
12. It is only by way of the indirect applications filed, one for permission to file a separate resolution plan and the other seeking permission to intervene in the application filed by the Resolution Professional, that ACPL sought to raise the issue of liquidation value, in terms of Section 30(2)(b) of the IBC. 5
13. Perusal of the record reflects that the appellant, ACPL, was well aware of the resolution plan submitted by MPWMPL and its contents. The representative of ACPL was present in the 5 th Meeting of the Committee of Creditors6, in terms of Section 24(3)(c) of the IBC, but did not participate in the CoC’s 6 th and 7th Meetings. The approval of the resolution plan by the CoC was in its 7 th meeting. However, the Resolution Professional placed on record a copy of the email dated 15.12.2022 addressed by him to the representatives of ACPL, attaching therewith the Minutes of the 6 th and 7th Meetings of the CoC, long before the approval of the resolution plan by the NCLT, Hyderabad Bench-1. Therefore, ACPL cannot claim ignorance of the details of the resolution plan submitted by MPWMPL. Such knowledge appears to have been the source and basis for the appellant, ACPL, to file a separate application seeking permission to file a resolution plan of its own. We may also note, at this stage, that the CoC is not even a party before us.
14. In such circumstances, when the appellant, ACPL, never challenged the approval of the resolution plan by way of properly instituted proceedings within time, it cannot be permitted to maintain such a challenge by way of these indirect proceedings. More so, as it was well aware of the details of the resolution plan and, in consequence, the fact that the operational creditors were being paid less than the liquidation value. Having suffered such a statutory breach to its own detriment and to the detriment of all the operational creditors, it was incumbent upon the appellant, ACPL, or any other operational creditor to file a proper appeal 6 For short, “CoC” 6 against the approval of the resolution plan. Once they failed to do so, we cannot permit a challenge to be maintained by way of parallel proceedings. The fact remains that the approval of the resolution plan by the NCLT, Hyderabad Bench-1, vide order dated 28.06.2023, attained finality as no proper challenge was ever laid against the same within time.
15. Viewed thus, we do not find any reason to interfere with the impugned judgments/orders passed by the NCLAT, Chennai. The appeals are bereft of merit and are, accordingly, dismissed.
Pending application(s), if any, shall stand disposed of.
....................J. (SANJAY KUMAR) ....................J. (SATISH CHANDRA SHARMA) NEW DELHI;
JULY 28, 2025.
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ITEM NO.53 COURT NO.14 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No. 9819-9820/2024
M/S. AFITA CONSTRUCTIONS PVT. LTD. Appellant(s)
VERSUS
DR GV NARSIMHA RAO & ANR. Respondent(s)
Date : 28-07-2025 This matter was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE SANJAY KUMAR HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA For Appellant(s) Mr. Nakul Dewan, Sr. Adv.
Mr. Pritesh Burad, Adv.
Mr. Shikhar Khare, Adv.
Mr. Srinivasan Ramaswamy, AOR For Respondent(s) Mr. Krishna Dev Jagarlamudi, AOR Mr. Arpit Kumar Mishra, Adv. Ms. Oshi Verma, Adv.
Mr. Vishnu Kanth Mundada, Adv.
Mr. S Niranjan Reddy, Sr. Adv. Mr. Mahfooz Ahsan Nazki, AOR Ms. Akhila Palem Rami Reddy, Adv. Ms. Palak Arora, Adv.
Mr. Vivek Rajan D.b., Adv.
Mr. Hemant Gupta, Adv.
UPON hearing the counsel, the Court made the following O R D E R The appeals are dismissed in terms of the signed order.
Pending application(s), if any, shall stand disposed of.
(Babita Pandey) (Preeti Saxena)
Astt. Registrar-cum-PS Court Master (NSH)
(Signed order is placed on the file)