TMI Blog2023 (1) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... yond the remit of removal of difficulties provision of IBC. Thus, liberty given by the Adjudicating authority in the Impugned Order to the operational creditor to file an application under section 33(3) of IBC is erroneous. While holding such a view we also note that the Adjudicating Authority in passing the Impugned Order has not noticed the law laid down by the Hon ble Supreme Court in the matter of Spartek Ceramics India Ltd. Whether the operational debt claimed by the appellants Surendra Singh Hada and Ors.is an operational debt as defined in IBC and whether it is in default and due for payment by the corporate debtor? - HELD THAT:- Whether the operational debt claimed by the appellants Surendra Singh Hada and Ors.is an operational debt as defined in IBC and whether it is in default and due for payment by the corporate debtor - the claims of workers were being paid under the monitoring and supervision of retired Hon ble Justice Mr. N.N. Mathur appointed by the State Government of Rajasthan. The substance of these public notices is that those workers/employees who have not received their past payment as admissible under the Tripartite Labour Settlement Agreements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy and Bankruptcy Code, 2016 (in short IBC ). The Appellants in both the appeals have assailed order dated 5.4.2021 in CP (IB)No.469/9/NCLT/ AHM/2018 with IA No. 18/2020 and IA No. 115/2020 passed by the Adjudicating Authority (National Company Law Tribunal, Ahmedabad) (hereinafter called Impugned Order ). 2. The Appellant Surendra Singh Hada Ors. are aggrieved by the Impugned Order as it has not found the section 9 application filed by the Appellants maintainable and have prayed for restoration of CP (IB) No.469/9/NCLT/AHM/2018 and connected IA No. 18/2020 and IA No 115/2020. The Appellant Arfat Petrochemicals Pvt. Ltd. (in short APPL ) is aggrieved by that part of the Impugned Order whereby liberty has been granted to Appellants Surendra Singh Hada Ors. to file application under section 33(3) of IBC against the corporate debtor. 3. Leaving aside unnecessary details, the facts of the case, as stated by the Appellants in both the appeals, are that the company J.K. Synthetics Ltd. (in short JKSL ) was declared a sick company under Sick Industrial Companies (Special Provisions) Act, 1985 (in short SICA ) vide order dated 2.4.1998 of Board of Industrial Financial Reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion scheme and subsequently CP(IB) No. 469/NCLT/ AHM/2018 was filed on 4.9.2018 under section 9 of the IBC for initiation of CIRP against the corporate debtor APPL, whereupon after due hearing, the Impugned Order was passed by the Adjudicating Authority. 5. We heard the oral arguments presented by the Learned Counsels for both the parties and perused the record. 6. The Learned Counsel for Appellants Surendra Singh Hada and Ors. has claimed that the claims of workmen and employees were not paid by APPL despite the two TLSAs, which were signed between the parties, and which APPL was obliged to comply with. He has referred to the order of AAIFR in CA No. 301/2000 dated 7.1.2005 to contend that the company APPL has defaulted in payment of the dues of the workmen. He has further referred to the bar to coercive action under section 22 of SICA to claim that during the period starting with the sanction of rehabilitation scheme till repeal of SICA the workers could not take any coercive action against APPL for payment of their dues and therefore, the matter of forcing payment of workers dues could not be pursued by the workers and hence this period should be excluded while calculating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erational debt of the workers under section 5(20) of the IBC is well established in view of the orders of BIFR/AAIFR and due to non-payment of outstanding debt it is in default as required under section 3(12) of the IBC, and as the application has been filed within limitation, it is a fit case for admission of section 9 application and initiation of CIRP against APPL. He has further contended that the Adjudicating Authority has committed an error by directing that the workmen could file application under section 33(3) of the IBC as operational creditors instead of admitting section 9 application preferred by workmen. 10. The Learned Counsel for Respondent APPL has focused on the pleadings in appeal CA(AT)(INS) No. 578 of 2021 with regard to his oral arguments. He has brought to our attention the prayer made by the Appellants Surendra Singh Ors. in their section 9 application and pointed out that the prayer very clearly sought an amount of Rs. 5 lakhs as interim relief for those employees, who have not taken the amount of their financial settlement. He has argued that APPL has made sincere endeavour to pay past claims of workmen since 2007, but if workmen have decided not to ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to show that full efforts to pay workers dues were made and, therefore, no worker can now claim default in payment of his/her dues. 13. The Learned Counsel for the Respondent APPL has cited the judgment of the three-member bench presided over by Hon ble Chairperson, NCLAT in the matter of Pramod Kumar Pathak vs. Arfat Petrochemicals Pvt. Ltd. (Judgment dated 12.12.2012 in CA(AT)(INS) No. 312 of 2022), wherein the Hon ble NCLT, after noticing and following the judgment of Hon ble Supreme Court in the matter of Spartek Ceramics India Ltd. (supra), held that any application filed under sections 33 and 34 of the IBC in relation to a previously sanctioned scheme for rehabilitation of the sick company JKSL under SICA is not maintainable. He has further claimed that in light of the judgment of Hon ble Supreme Court in Spartek Ceramics India Ltd. (supra) case, any issue relating to execution/ implementation of a previously sanctioned rehabilitation scheme cannot be considered under IBC, and, therefore, the order of the Adjudicating Authority directing that the workers have the liberty to file application under section 33 of IBC against the corporate debtor is erroneous. 14. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment dated 12.12.2022 of the three-members bench of this Tribunal in CA(AT)(Ins.) No. 312 of 2022. We reproduce the relevant portion of this judgment for appreciation: - 19. We are of the view that judgment of the Hon ble Supreme Court in M/s. Spartek Ceramics India Ltd. is a law declared by the Hon ble Supreme Court, where Hon ble Supreme court has specifically approved the view of this Appellate Tribunal that Notification dated 24.05.2017 travels beyond the scope of removal of difficulties provisions. 20. We, thus, are of the view that no error has been committed by the Adjudicating Authority in rejecting Application filed by the Appellant under Sections 33 and 34. There is no merit in the Appeal. The Appeal is dismissed. No costs. 17. The above referred judgment in Pramod Kumar Pathak (supra) has clearly noticed the judgment of Hon ble Supreme Court in the matter of Spartek Ceramics India Ltd. (supra). The Spartek Ceramics India Ltd. judgment (supra) is also noticed by this tribunal in its judgment in CA(AT)(INS.) No. 312/2022 as also in CA(AT)(INS) No. 294 of 2018 in the matter of GAIL (supra) and CA(AT)(INS.) No. 289 of 2019 in the matter of Agarpara Company L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the civil courts by way of civil suits for adjudication of their claims and the civil court dismissed their suits observing that the dispute involved in the suits gives rise to an industrial dispute and the plaintiffs, workers can seek redressal under the provisions of Industrial Disputes Act, 1947. Similarly, it is obvious that once the workers have disassociated TLSAs and the civil courts have also directed that their claim/dispute, if any, can be adjudicated under the Industrial Disputes Act, 1947, in such a situation the workers cannot agitate and canvass for enforcement of the Agreement executed, to which earlier they were party and after receiving the wages they have disassociated. The claims of. The workers, if any, are also secured and can be presented before Justice Mr. N.N. Mathur, care taker appointed by the Government of Rajasthan for its adjudication. (Emphasis Supplied) 21. Thus, it is clear that claims of workers were being paid under the monitoring and supervision of retired Hon ble Justice Mr. N.N. Mathur appointed by the State Government of Rajasthan. We further note that various news items were published in widely circulated newspapers Dainik Bhasker on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es as to what was paid and what remained unpaid and also the default on the part of the corporate debtor APPL is not established, since right from 2007 onwards the corporate debtor and earlier JKSL has continued to make sincere efforts to pay such past dues. We are, therefore, quite clear that the default in payment of past dues as claimed by the Appellants Surendra Singh Hada and Others is not established in the present case. 25. We also note the judgment of this Tribunal in the matter of Mr. Gouri Prasad Goneka (supra), wherein the following was held:- On a plain reading of these provisions, it is manifestly clear that the remedy for the enforcement of right by the Creditor to recover the outstanding debt from the Debtor through the medium of a suit for recovery of money remains suspended for the period during the pendency of inquiry under Section 16, 17 or appeal under Section 25 of SICA. Admittedly, in the instant case the Corporate Debtor was declared as a Sick Industrial Unit by BIFR vide order dated 16th July, 2009 which passed direction under Section 22(1) of SICA to Secured Creditors not to take any coercive action against it without prior permission of BIFR .. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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