TMI Blog2020 (8) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019), accepted that in this regard, there was clerical/typographical error which can be rectified. What is apparent from the Appeal No.688 of 2019 itself is that the RP had initially accepted the claim of the Appellant IOC (Indian Oil Corporation Limited) only of ₹ 39,09,99,828/- which after correspondence was accepted to the extent of ₹ 73,07,76,273/-. It seems that subsequently, the earlier RP Mohan Lal Jain was replaced. In the process, the error may have occurred but now the RP has fairly accepted that this was an error which needs to be rectified. There are no substance in the Company Appeal (AT) (Ins) No.680 of 2019 to interfere with the Impugned Order or the Resolution Plan which has been approved - appeal disposed off. - Company Appeals (AT) (Ins) Nos. 680 and 688 of 2019 - - - Dated:- 8-6-2020 - [ Justice A.I.S. Cheema ] Member (Judicial) And [ V.P. Singh] Member (Technical) For the Appellant : Ms. Shobha and Shri Pankaj Bhagat, Advocates For the Respondent : Shri Abhishek Anand and Ms. Honey Satpal, Advocates (for RP) Shri Ritesh Kr. Tiwari, Advocate (R-2) JUDGMENT A.I.S. Cheema , J. 1. Company Appeal (AT) (Ins) No.680 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Professional). The Application filed by the present RP Sandeep Mahajan before Adjudicating Authority for accepting the Resolution Plan (Annexure A-9 - Page 129) shows that initial steps in the CIRP were taken by the said Mohan Lal Jain who was earlier continued as Resolution Professional. It appears that later on, in 6th meeting of the COC (Committee of Creditors), decision was taken to replace the said Mr. Mohan Lal Jain with the present RP - Sandeep Mahajan which was approved by the Adjudicating Authority on 28th September, 2018. The Application filed by the RP has given particulars of the course through which the CIRP went through to the point of accepting of the Resolution Plan of Respondent No.2 G.P. Global Energy Pvt Ltd. Successful Resolution Applicant (SRA in short). Impugned Order shows that the President of NCLT acting as Adjudicating Authority considered the Application filed by RP along with its Annexures and kept in view the provisions of law found in IBC and the regulations, and discussed in details to see if it was satisfied that the Resolution Plan conforms to the requirements given in Section 30(2) of IBC. The Impugned Order reproduced portion from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent) Act, 2019 (26 of 19) amended this provision with effect from 16.08.2019 and now the same reads as under:- 30. Submission of Resolution Plan.-(1) A resolution applicant may submit a resolution plan [along with an affidavit stating that he is eligible under section 29A] to the resolution professional prepared on the basis of the information memorandum. (2) The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan- (a) . (b) provides for the payment of debts of operational creditors in such manner as may be specified by the Board which shall not be less than (i) the amount to be paid to such creditors in the event of a liquidation of the corporate debtor under section 53; or (ii) the amount that would have been paid to such creditors, if the amount to be distributed under the resolution plan had been distributed in accordance with the order of priority in sub-section (1) of section 53, whichever is higher, and provides for the payment of debts of financial creditors, who do not vote in favour of the resolution plan, in such manner as may be specified by the Board, which sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis. It is claimed that the Corporate Debtor could not succeed even when reference was made to BIFR for rehabilitation and even then the Appellant supplied the material on credit basis with the object of reviving the operations. The Appeal claims that thereafter Agreement dated 19.07.2017 was executed by the Corporate Debtor and as per the said Agreement, the Appellant was a Secured Creditor and the charge was also registered with the Registrar of Companies. The learned Counsel for the Appellant at the time of arguments did not point out or show such agreement to us. The final list of creditors (Annexure A5 Page 66 at Page 87) refers to hypothecation deed dated 1st December, 2016. The Appellant has not pointed out even this document from the record to us to claim that it was Secured Operational Creditor on the basis of hypothecation deed. The Appellant is merely relying on the entry made by RP in the final list of Creditors (Annexure A-5) Page 66 at Page 86). If Annexure A-5 is perused, at Page 83, there is list of Creditors of the category of Operational Creditors other than workmen and employees. At Serial No.53, there is reference to the Appellant Power2SME Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t required separate treatment at par with Secured Financial Creditors on the basis of the claim that it was Secured Operational Creditor. 11. In this context, although the Appellant claims that it was a Secured Operational Creditor and the security was registered with the Registrar of Companies, the Appellant has not filed or shown us the Agreement dated 19.07.2017 referred in the Appeal or the deed of hypothecation dated 01.12.2016 referred by the RP in the final chart. Apart from this, the contents of the Appeal disclose that the Appellant had been supplying goods on credit to the Corporate Debtor when the Corporate Debtor was in distress and in the process, claims that the Agreement dated 19.07.2017 was executed creating charge. The Appellant has not challenged the contents of Annexure 1 with regard to the fact that the banks already had created in their favour charge on the stock of which the banks /financial institutions had first and second charge and they were such first and second charge holders, and no NOC was taken by the Appellant for creating the charge it wants to rely on. 12. Again, the Reply filed by the SRA (Diary No.14419) shows that in the 7th meeting of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om record that the earlier RP Mohan Lal Jain was got replaced by the COC in the 6th meeting and the effort made by the new RP to hold on to the material lying at the premise of the Corporate Debtor could not succeed which is evident from the above proceeding. At the time of arguments before us also, the learned Counsel for Appellant has stated that the goods were hypothecated and the Appellant did get back the goods. Having taken the goods, when Banks had prior charge, the Appellant still wants to rely on the hypothecation of goods seeking equality with the other Secured Financial Creditors and, the above proceeding shows, new RP did not succeed as the learned Adjudicating Authority did not permit the new RP to contest/challenge/review the decision of the erstwhile RP and rather directed to comply with the Order passed by erstwhile RP on 20.08.2018. 13. In Judgement in the matter of Essar Steel (supra), Hon ble Supreme Court discussed the equality principle with regard to Secured and Unsecured Creditors and in para 48, reference was made to UNCITRAL Legislative Guide in which there was discussion with regard to situation Where secured creditors are not fully secured and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be stretched to treating unequals equally, as that will destroy the very objective of the Code - to resolve stressed assets. Equitable treatment is to be accorded to each creditor depending upon the class to which it belongs: secured or unsecured, financial or operational. 15. Keeping the above observations of the Hon ble Supreme Court in view, when we consider the facts of the present matter, although the Appellant claims to be a Secured Operational Creditor, admittedly the Appellant got back the goods and apart from that, it is clear that the hypothecation deed relied on was subsequent to the first and second charge which was already existing in favour of the banks and considering this, it does not appeal to us that the Appellant can seek parity with the Secured Financial Creditors who in the COC, have approved the Resolution Plan, themselves taking huge haircut just to keep the Corporate Debtor going concern. 16. At the time of arguments, the learned Counsel for the Resolution Professional submitted that Valuation Report had been obtained at the time of CIRP and that the total liquidation value of the Corporate Debtor was about ₹ 189 Crores. We have noticed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution Plan to the extent of ₹ 235.86 Crores but in the process, accepted portions payable to the Operational Creditors to be reduced. Keeping in view Judgement in the matter of Essar Steel , we would not comment on this any further, considering the same as commercial decision of the COC. It appears to be a conscious decision. 19. As regards the contention of the Appellant in Appeal No.688 of 2019 that its claim was accepted by RP to the extent of ₹ 73,07,76,273/-, the RP has in Reply (Diary No.14497 of Appeal No.688 of 2019), accepted that in this regard, there was clerical/typographical error which can be rectified. What is apparent from the Appeal No.688 of 2019 itself is that the RP had initially accepted the claim of the Appellant IOC (Indian Oil Corporation Limited) only of ₹ 39,09,99,828/- which after correspondence was accepted to the extent of ₹ 73,07,76,273/-. It seems that subsequently, the earlier RP Mohan Lal Jain was replaced. In the process, the error may have occurred but now the RP has fairly accepted that this was an error which needs to be rectified. 20. For the above reasons, we do not find any substance in the Company App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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