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WITH CIVIL APPEAL NOS. 2192-2193 OF 2020 CIVIL APPEAL NO. 2225 OF 2020 CIVIL APPEAL NO. 3020 OF 2020 CIVIL APPEAL NO. 6390 OF 2021 INDEX I. INTRODUCTION.................................................................... 4 II. FACTS .................................................................................. 4 III. SUBMISSIONS .................................................................... 15 i. Appellants in Civil Appeal Nos. 2192 – 2193 of 2020 (erstwhile promoters) ............................................................... 16 ii. Appellants in Civil Appeal No. 2225 of 2020 (Jaldhi Overseas Pte. Limited) .............................................................. 23 iii. Appellants in Civil Appeal No. 3020 of 2020 (M/s. Medi Carrier Private Limited) and Civil Appeal No. 6390 of 2021 (CJ Darcl Logistics Limited) ........................................................... 24 iv. Resolved Entity – BPSL ...................................................... 25 v. Resolution Professional ..................................................... 26 vi. Committee of Creditors ...................................................... 27 vii. Successful Resolution Applicant – JSW........................... 30 viii. Submissions in Rejoinder ................................................ 38 IV. ANALYSIS........................................................................... 39 a. Locus standi of the erstwhile promoters ......................... 39 b. Existence of the CoC after approval of the Resolution Plan by the Adjudicating Authority .............................................. 48 c. Grounds of Appeal .......................................................... 68 d. Legality of clause permitting CoC to extend the period for implementation of the Resolution Plan ................................. 74 e. Delay in implementation of the Resolution Plan ............. 78 f. Contravention of law ...................................................... 95 g. Upfront infusion of funds by the SRA – JSW ................. 100 h. Distribution of EBITDA.................................................. 107 i. Contingent claim of Jaldhi ........................................... 121 j. Pre-CIRP dues of Medi and Darcl ................................... 131 V. CONCLUSION ................................................................... 133 LIST OF ABBREVIATIONS

1. Arbitration Act Arbitration and Conciliation Act, 1996

2. BPSL M/s Bhushan Power and Steel Limited

3. CBI Central Bureau of Investigation

4. CCD Compulsorily Convertible Debentures

5. CIRP Corporate Insolvency Resolution Proceedings

6. CoC Committee of Creditors

7. CRP Consolidated Resolution Plan

8. Darcl CJ Darcl Logistics Limited

29. Responding to the contentions raised in Appellants – Medi and Darcl, Shri Pahwa submitted that no pre-CIRP dues were disbursed by the RP. Payments of Rs. 40.77 crore were made solely to honour post-dated cheques issued by the erstwhile management to avoid criminal liability under the Negotiable Instruments Act, 1881 as the IBC does not protect against the same. An inadvertent mistake by an accounting clerk led to the payments being reflected as pre – CIRP payments, which was later rectified, with revised payment advisories issued and adjustments made against the CIRP- period dues. It was submitted that the Appellants – Medi and Darcl – had provided services during the CIRP period amounting to ₹1,54,82,86,309/- and ₹99,99,24,471/- respectively, against which ₹1,54,82,86,309/- and ₹96,11,44,066/- had been paid, with the balance payable under the Resolution Plan.

k. Pre-CIRP dues of Medi and Darcl

181. Two OCs of the Corporate Debtor namely Medi and Darcl have raised contentions regarding their claims by filing appeals before this Court against the impugned judgment. Since the contentions raised by these two OCs are similar in nature, we are dealing with their appeals together.

182. It was submitted by the Appellants that they were promised their payments of pre – CIRP dues by the RP as an incentive for continuing to do business with the Corporate Debtor during the CIRP period in order to keep it a ‘going concern’. It was stated by the learned counsel that after payments for the pre – CIRP dues were received for 10 months during the CIRP period, the RP issued a corrigendum and stated that the payments for the pre – CIRP dues were given due to a “mistake” committed by the accounting clerk and that the same would be adjusted towards the services of the Appellants during the CIRP period. In the said corrigendum, it was also stated by the RP that the pre – CIRP dues paid to the Appellants would be treated as per the Resolution Plan. Per Contra, the RP submitted that the payments made to the Appellants were nothing, but a mistake made by an accounting clerk and that no pre – CIRP payments were actually made by the RP. The Appellants have been paid the amounts for the services rendered by them during the CIRP and their pre – CIRP dues were to be paid as per the Resolution Plan. It was submitted that once the NCLT and the NCLAT have given a similar finding on the issues, no interference by this Court would be warranted.