TMI Blog2022 (4) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with the order of priority in Sub Section (1) of Section 53. Further, Section 31 of the I B Code, 2016 deal with approval of Resolution Plan. As per Sub Section (1) if the Adjudicating Authority is satisfied that the Resolution Plan as approved by the Committee of Creditors under Sub-Section (4) of Section 30 meets the requirements as referred to in Sub-Section (2) of Section 30, it shall by order approve the Resolution Plan which 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 enforced, such as Authorities to whom Statutory dues are owed,) guarantors and other stakeholders involved in the Resolution Plan. Due procedure as contemplated under I B Code, 2016 is to be followed to submit a Resolution Plan. Accordingly, the Resolution Applicant shall submit a Plan before the Resolution Professional and it should contain the requirements as per the said provision including the payments of debts to the Operational Creditors etc. After submission of the Resolution Plan the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed an order approving the Resolution Plan. It is submitted that the Appellant provided security and housekeeping services for the projects undertaken by the Corporate Debtor. It is submitted that the security services provided were of due importance and did aid the timely completion of the projects and shall be right fully treated as operational debt under the provisions of IBC. 3. Upon initiation of CIRP against the Corporate Debtor, the Appellant by an email dated 21.10.2019 submitted proof of claim in form B to the first Respondent specifying the amount of claim of ₹ 8,77,317/- and furnished details of invoices and account statements. The First Respondent by email dated 09.12.2019 duly approved the claim amount at ₹ 8,47,147/- stating that a sum of ₹ 30,0170/- was with respect to TDS and refused to take the said amount into consideration for approval. 4. However, the 2nd Respondent deliberately kept the claims out of the purview of the Resolution Plan, thus, giving a clear indication on the part of the 2nd Respondent that such claims find no merit in the Plan. While considering the Plan during 8th CoC meeting, held on 30.07.2020, one Mr. Prakash a R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submitted that the Plan provided by the 2nd Respondent is not in conformity with Section 30 (1) of the I B Code, 2016 and the Hon ble Adjudicating Authority ought not to have approved the Resolution Plan provided by the 2nd Respondent despite the fact that it did not provide for the payment to the Appellant i.e. the Operational Creditors. Further, the Hon ble Adjudicating Authority ought to have liquidated the Corporate Debtor on the ground that the Resolution Plan was not in conformity with Section 30 (1) of the I B Code, 2016. 12. In view of the reasons as stated above, the Ld. Counsel prayed this Bench to allow the Appeal by setting aside the order passed by the Adjudicating Authority dated 29.01.2021. 1st Respondent s Submissions: 13. In both the Appeals the 1st Respondent is the Resolution Professional and similar plea has been taken in both the Appeals hence, the contents have been taken from both the counter affidavits as under. 14. The Ld. Counsel appearing for this Respondent submitted that at the outset the Appeal is not maintainable in law or on facts. 15. The grievance of the Appellant in CA (AT) (Ins) No. 110 of 2021 is that the claim to the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the aforesaid fact, it is clearly stated in the Resolution Plan that payment to the Operational Creditors is not proposed, since the liquidation value of the Corporate Debtor is insufficient to satisfy their claims, or even those of the secured Financial Creditors. It is submitted that non-payment of the Operational Creditor s including the Appellant is permissible in accordance with Section 30 (2) (b) read with Section 53 (1) of the Code. Since in the event of liquidation of the Corporate Debtor, the Appellant would not have received any payment at all. 20. It is submitted that the Resolution Plan clearly states that payment to Operational Creditors as a class is not contemplated at all due to the insufficiency of the liquidation value of the Corporate Debtor. 21. It is submitted that the Committee of Creditors of the Corporate Debtor have by majority vote of 95.07% approved the Resolution Plan submitted by the 2nd Respondent considering the feasibility and viability of the Plan. The Plan has been approved by the Hon ble Adjudicating Authority. 22. In view of the reasons as stated above the Appeal is devoid of merits and liable to be dismissed. 2nd Respondents S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Even though under Section 30(4) of the I B Code, 2016 the requisite voting share of the Committee of Creditors required to approve the Resolution Plan is 66%. The Plan was approved by the CoC in their commercial wisdom, the Plan is ultimately a commercial roadmap for the restructuring of the Corporate Debtor. 30. In view of the reasons as stated above the Appeal is devoid of merits and liable to be dismissed. Analysis/Appraisal: 31. Heard the Ld. Counsel appeared for the respective parties perused the pleadings, documents filed by them. Having analysed the pleadings the only point for consideration is whether the Plan is violation of any provision of Law and made any discriminatory treatment towards the Appellants and similarly situated operational creditors. 32. The Adjudicating Authority vide its order dated 29.01.2021 approved the Resolution Plan submitted by the 2nd Respondent dated 03.08.2020. It is seen that the Committee of Creditors at their 8th CoC held on 30.07.2020 approved by declaring the Resolution Plan will be binding on the Corporate Debtor and its Employees, Members, Creditors including the Central Government, any State Government etc. 33. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany or the List of Creditors and no source has been identified for such payment under this Resolution Plan. 36. Even in the Plan the outstanding Government dues, taxes etc. which was admitted as operational creditor debt, nil payment has been proposed under the Plan towards payment of any Government dues, taxes etc. 37. Schedule -6 of the Resolution Plan the payment to creditors and cost of Resolution Plan other than homebuyers have been provided. From the said schedule it is seen that ₹ 8 Crores has been earmarked for payment to Financial Creditors against a claim of ₹ 123,05,76,095/-. Further, payment to employees has been earmarked a sum of ₹ 30 Lakh against a claim of ₹ 13,99,74,125/-. 38. A sum of ₹ 50 Lakh has earmarked for payment towards CIRP cost. It has been categorically stated that the payment to unsecured creditors including operational creditors and dues to Government/Statutory dues and equity shareholders shown as nil. From the overall Plan only three categories of payments have been made i.e. (i) CIRP Cost, (ii) Employees dues, (iii) Financial Creditor. Therefore, no payments have been made to any of the Operational Credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 enforced, such as Authorities to whom Statutory dues are owed,) guarantors and other stakeholders involved in the Resolution Plan. 42. Due procedure as contemplated under I B Code, 2016 is to be followed to submit a Resolution Plan. Accordingly, the Resolution Applicant shall submit a Plan before the Resolution Professional and it should contain the requirements as per the said provision including the payments of debts to the Operational Creditors etc. After submission of the Resolution Plan the Committee of Creditors may approve a Resolution Plan by a vote of not less than 66% of voting share of Financial Creditors. After approval of the plan by the Committee of Creditors, the Adjudicating Authority under Sub-Section (1) of Section 31 may approve the Resolution Plan if it is satisfied that the Plan meets the requirements as per Sub-Section (2) (4) of Section 30 of the Code and the same shall be binding on the Corporate Debtor, its employees, members, creditors ..... X X X X Extracts X X X X X X X X Extracts X X X X
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