2022 (11) TMI 566 - AT - Insolvency & Bankruptcy
Consideration of claim of appellant, after the resolution plan is approved - time limitation - 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, while 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.
HELD THAT:- 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.
From Rule 12 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, 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.
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 in compliance 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 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.
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.
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 - 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.
Thus, 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 - 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.