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2019 (6) TMI 849 - AT - Insolvency and BankruptcyInitiation of Corporate Insolvency Resolution Process - Corporate debtor - transfer of shares of ‘Shareholders’/’Promoters’ - HELD THAT:- The ‘Operational Creditors’ who were supplying goods or rendered services including employees are investing money for keeping the company operational. Employees are also working to keep the company operational, therefore, they are class in themselves. On the other hand, the Central Government or State Government, they do not invest any money nor render any services but derive advantage of operation by claiming of the debt on the basis of the existing law (statutory debt). Therefore, classification is made between – (i) those ‘Operational Creditors’ who were employees; (ii) those who were suppliers of goods or rendering services by investing money and (iii) the Central Government or State Government or local authority, who only claim the statutory debt. Resolution plan cannot be arbitrary or discriminatory amongst class of such ‘Operational Creditors’. Only the same treatment is to be made. So far as the ‘Shareholders’ or ‘Promoters’ are concerned because of their failure the ‘Corporate Insolvency Resolution Process’ got initiated against the ‘Corporate Debtor’ and ‘Successful Resolution Applicant’ pays the dues to all the creditors on behalf of the ‘Corporate Debtor’/’Promoters’/’Shareholders’. In lieu of such payment, it is always open to the ‘Successful Resolution Applicant’ to claim transfer of shares of ‘Shareholders’/’Promoters’ in its favour. Section 29A is the ineligibility clause which deals with question as to who are ineligible to file ‘resolution plan’. As per said provision any persons who act jointly or in concert with such person if fall within any of the clause as mentioned therein (Clause (a) and (j) ) are ineligible to file ‘resolution plan’. It is not the case that the ‘Resolution Professional’ or the ‘Committee of Creditors’ or that the Adjudicating Authority found the ‘Resolution Applicant’ to be ineligible under Section 29A. In absence of any such evidence, it was not open to the Adjudicating Authority to observe that the Appellant has a nexus with the ‘Corporate Debtor’. We modify the impugned order dated 19th February, 2019 and substitute the manner of distribution as shown in the ‘Resolution Plan’ with the ‘Revised distribution’ as noted above. Appeal allowed.
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