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TMI Blog2023 (3) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... Srivastava , Member ( Technical ) ] This judgment disposes of the following appeals, namely : - (i) Company Appeal (AT) (Insolvency) No. 42 of 2022 filed by Hindalco Industries Ltd. (ii) Company Appeal (AT) (Insolvency) No. 43 of 2022 filed by Hindalco Industries Ltd. (iii) Company Appeal (AT) (Insolvency) No. 52 of 2022 filed by H.I.W. Workers' Union (iv) Company Appeal (AT) (Insolvency) No. 53 of 2022 filed by H.I.W. Workers' Union 2. The above mentioned four Company Appeals have been filed by respective appellants under section 61 of the Insolvency and Bankruptcy Code, 2016 (hereinafter called "IBC") assailing the order dated 22.12.2021 (hereinafter called the 'Impugned Order') passed by the Adjudicating Authority (NCLT, Cuttack Bench) in IA (IBC) no. 42/CTB/2020 in CP (IB) No. 1/CTB/2019. 3. The Appellants in all the above-mentioned appeals have prayed for the main relief of quashing the Impugned Order dated 22.12.2021, among other related reliefs sought in each of the appeals. 4. The facts of the case, common to all the appeals, as stated by the Appellants Hindalco Industries Ltd (in short 'HIL') and H.I.W. Workers' Union are that Nandakini Contractors Pvt. Ltd. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A No.197/CTB/2019 filed by the RP was approved by the Adjudicating Authority by order dated 22.12.2021. This resolution plan was submitted by Regus Impex Private Limited, the successful resolution applicant, (in short 'Regus Impex') and at the time the resolution plan was approved, IA No. 50/CTB/2020 which was filed by the Appellant HIL remained pending for disposal though arguments were heard at length in this IA and the Appellant has pointed out that this application raised issues relating to illegal constitution of the CoC by including 'related parties'. The Appellant HIL has thus claimed that the Impugned Order was passed by the Adjudicating Authority without considering the information regarding the presence of related parties in the CoC and fraudulent initiation of CIRP placed by HIL on record, whereas the order approving the resolution plan should have been passed with complete satisfaction of the Adjudicating Authority as required under section 31, read with section 30(2) of the IBC. 8. The main grounds raised by the Appellants in their respective appeals pertain to the allegation that the section 7 application filed by Nandakini as financial creditor was on account of col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... WP(C) No. 4442/2006 filed by these three companies before the Hon'ble High Court of Odisha, a direction was given that a tripartite agreement should be entered into between the H.I.W. Workers' Union, IDCOL and the three companies to ensure disbursement of pending dues to the workmen, and consequently a tripartite agreement came to be signed on 2.6.2006 in compliance of the Hon'ble High Court's order. 11. The Appellants have further submitted that the corporate debtor closed its factory at Hirakud in the year 2007 and in the same year, the three companies owning the corporate debtor transferred their entire shareholding to a company called Indo Wagon Limited (in short 'Indo Wagon'), but the workmen's dues still remained unpaid and so the H.I.W. Workers' Union filed a Writ Petition WP(C) No. 12479/2009 before the Hon'ble High Court of Odisha seeking cancellation of the share purchase agreement and direction for payment of workmen's dues, whereupon the Hon'ble High Court of Odisha vide order dated 22.2.2010 directed the three companies, which had got the corporate debtor's shares after disinvestment by IDCOL, to pay Rs.1,50,00,000 to the workers which again remained unpaid. 12. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NCLT on 3.6.2019, and on 4.6.2019 the Adjudicating Authority admitted the section 7 application filed by the financial creditor initiating CIRP against the corporate debtor, simultaneously imposing moratorium under the IBC regarding the assets of the corporate debtor and appointing Mr. Anand Rao Korada as the Interim Resolution Professional. 14. The Appellants have added that as moratorium had been imposed consequent to the admission of section 7 application by the Adjudicating Authority, the RP preferred an interlocutory application in WP(C) No. 7939/2011 before the Hon'ble High Court of Odisha on 6.8.2019 praying for stay of the auction proceedings, and thereafter, the RP filed Civil appeal No. 23349-23350/2019 in Hon'ble Supreme Court challenging various orders of the Hon'ble High Court of Odisha regarding the auction proceedings wherein HIL was also added as Respondent. The Hon'ble Supreme Court disposed of the civil appeal setting aside the orders of the Hon'ble High Court of Odisha regarding auction of corporate debtor's assets in view of the moratorium imposed after admission of section 7 application and also, inter alia, granted liberty to HIL to pursue appropriate remedie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 'related parties' closely connected with the CD, and were the approvals and resolutions passed in the meetings of CoC vitiated and bad in law? (iv) Were the actions taken by the Resolution Professional in accordance with the provisions of IBC, and free from the allegations of prejudice and partisan approach? (v) Was the Successful Resolution Applicant Regus Impex Private Limited disqualified to submit a resolution plan for the corporate debtor? 18. We heard the arguments of Learned Senior Counsels/Learned Counsels for the parties in the appeals and perused the record. It is noted that the financial creditor Nandakini, impleaded as Respondent in some appeals under consideration, has chosen not to file any reply or submit oral arguments in support of its case. 19. The Learned Senior Counsel for HIL, which is the Appellant in CA(AT)(Insolvency)) No. 42 of 2022 and CA(AT)(Insolvency)) No. 43 of 2022, has initiated his arguments by submitting that the legitimate dues of the workers had been crystalized at Rs. 45.66 crores by the Deputy Labour Commissioner and proceedings regarding auction of the corporate debtor's assets for payment of workers' dues were being undertaken under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the loan is not provided in the application, and directed the RP to furnish the proof of debts regarding the claims of all the purported financial creditors. This direction was not complied by the Respondent, and hence the members of CoC who claim to be financial creditors are not backed by adequate and appropriate proof of their debts, and therefore, the constitution of CoC with the inclusion of such members is fraudulent and void ab initio. Further, the Learned Senior Counsel for Appellant HIL has argued that the e-mail dated 5.3.2020, which is produced by the RP as showing proof of his submission of the requisite evidence of the financial debts and claiming to be compliance of the order dated 28.2.2020, was sent to the Registry of NCLT and not submitted before the Adjudicating Authority, and hence the proof of debts was not brought on record, and thus, there was non-compliance of the Adjudicating Authority's order dated 28.2.2020. 21. The Learned Senior Counsel for HIL has added that despite the HIW Workers' Union repeatedly pointing out to the Adjudicating Authority that its order dated 28.2.2020 has not been complied with, and requesting for adjudication of IA No. 341/CT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and, therefore, null and void. 24. The Learned Senior Counsel for Appellant HIL has further argued that it is clear from the financial information of the companies who are members of CoC, which is available on the Ministry of Corporate Affairs website that they belong to the same group of companies. He has submitted charts showing the shareholding status of the members of the CoC and their inter-connectedness through shareholdings to show how these entities are closely connected with each other and with the holding companies of the corporate debtor and also the SRA Regus Impex. He has emphasised that it is necessary to examine the fraud that is claimed in the present case, and that to examine the element of fraud in the initiation of CIRP, the ambit of enquiry is quite wide and the tribunal should not limit itself to examining only whether there is de jure prohibition on some companies to become members of CoC but it should be seen whether the various companies, namely the purported financial creditor Nandakini, the corporate debtor HIWL, the member companies of the CoC and the SRA Regus Impex were being guided and led by a 'controlling mind' and were acting 'in concert', so t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torium on its assets, in order to deny the just, fair and legitimate claims of the workers and other creditors, such as the Bank of India, and also ensure that despite insolvency resolution, the corporate debtor remains within the ambit of the same group of companies. He has, therefore, made a case for piercing of the corporate veil to look at such inter-connectedness and to also unravel the ulterior design of the corporate debtor, purported financial creditor Nandakini and the parent company. 27. The Learned Senior Counsel for HIL has also submitted detailed information to show how majority of these companies have common directors, cross shareholdings, common registered addresses and common email addresses. He has clarified that this information is already present in the pleadings and an attempt has been made by him to present the relevant information in a more structured and intelligible manner. 28. The Learned Senior Counsel for HIL has thus contended that while on one hand the corporate debtor is controlled by Adishwar Nivesh and its shareholding companies, Mr. Sujit Dutta Roy's presence in the board of at least five of the companies which are financial creditors and thus par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted in his arguments that the section 7 application was not based on any financial contract or any entry in the Bankers' Book in accordance with the Bankers Book Evidence Act, 1891 and the prescribed Form 1 of section 7 application did not contain any particulars regarding disbursement through a bank account or any entry in the ledger account or account book, and merely on the admission of some imprecise loan amount by the corporate debtor, the section 7 application was admitted without proper enquiry and satisfaction of the Adjudicating Authority. He has added that the "Note 3" referred to in para no. 3.6 of the Impugned Order suggests that the amount of Rs.14,51,047/- was included under the head "Trade Payable" in the financial statement which is an incorrect understanding because the term 'Trade Payable" implies that the amount is liable to be paid by the financial creditor in whose balance sheet it appears, whereas in case of a loan the financial creditor is to receive the said amount. He has further submitted that the audited Annual Returns for the financial year 2015-16, which is the relevant financial return since the loan/advance is alleged to have been given on 14.3.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that there was no proof of disbursement of loan from the financial creditor to the corporate debtor and directed the RP to furnish proof of debts in respect of all the claims of purported debts against financial creditors, who were included in the CoC. He has added that this direction was not complied by either the financial creditor Nandakini or the RP, who was representing the corporate debtor. He has rebutted the contention of the erstwhile RP that compliance of the Adjudicating Authority's order dated 28.2.2020 was done by submitting requisite documents by an e-mail dated 5.3.2020 to the Registry of NCLT by contending that the direction of the Adjudicating Authority should have been complied by submitting documents before the Adjudicating Authority and merely sending an e-mail to the Registry does not bring the proof of debts on record in the case. He has further explained that the orders of the Adjudicating Authority dated 12.11.2020 and 26.11.2020, wherein it is recorded that the order dated 28.2.2020 has not been complied with, also establishes that the RP did not produce any proof of purported debts of financial creditor before the Adjudicating Authority. 33. The Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate debtor's assets. 35. The Learned Senior Counsel for HIW Workers' Union has brought to our attention paragraphs 4 and 5 of the section 7 admission order to show the financial debt claimed by the financial creditor Nandakini of an amount of Rs.24,11,975 was accepted as an actual and real debt just on the basis of admission of the corporate debtor in its reply, which is mentioned in paragraph 5 of the said order. Further, he has mentioned that the learned counsels of both the financial creditors and the corporate debtor jointly requested the Adjudicating Authority to urgently hear the case and pass necessary orders, when the case was listed for final order on 11.6.2019 and thus, the section 7 admission order came to be passed quite hurriedly without adequate appreciation of facts by the Adjudicating Authority. He has claimed that it is clearly a case of collusion between the financial creditor and the corporate debtor and directed at placing a hurdle in the auction of corporate debtor's assets being undertaken for payment of workers' dues. 36. The Learned Senior Counsel for HIW Workers' Union has further submitted that the workers were not aware of the filing of section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddress i.e. 9, Ezra Street, Kolkata and claimed that Nandakini and the corporate debtor HIWL are controlled through common directors, namely, Mr. Sujit Dutta Roy and Mr. Tanima Mondal. He has added that Mr. Sujit Dutta Roy is also a director in three of the five shareholding companies of Adishwar Nivesh (which holds 100% shareholding control over the corporate debtor) namely, Divya Mercantile, Sheetal Exports and Goldman Stocks and further in addition to the fact that Adishwar Nivesh has shareholding interest in Gain E Commerce (22.48%), Divya (25.4%), Fragment (19.9%) influences the decision making in these members of the CoC through Mr. Sujit Dutta Roy. He has thus claimed that the web of companies, wherein some companies have common directors, common registered addresses and common e-mail address are definite pointers to the fact that these companies are part of one group of companies which are enmeshed with each other through shareholding stake, common directors, common registered address and common e-mail address were behind the filing section 7 application by Nandakini and in all the subsequent actions in CIRP culminating in the approval of resolution plan submitted by Regus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that thus HIL did not complete the auction sale by depositing the balance amount, but it is now seeking to get hold of the corporate debtor's assets, particularly the railway track, siding and locomotives, by assailing approval of the resolution plan. 42. The Learned Counsel for erstwhile RP has also brought to our attention the fact that an amount of Rs. 4.10 crores is overdue for payment by HIL by way of land rent and licence fees in respect of the railways siding and track. He has also submitted that Hon'ble Supreme Court, on an appeal by the RP titled CP No. 8800-8801/2019 passed judgment on 8.11.2020, whereby the auction proceedings were stayed in view of moratorium having been declared on 4.6.2019 by the NCLT. He has accepted that HIL did write to RP for a copy of detailed invitation for EOI through mail dated 5.12.2019, but in view of the fact that the last date of submission of EOI by any prospective Resolution Applicant was 23.8.2019, the RP was unable to accede to HIL's request, but agreed to place the request of HIL made vide e-mail dated 5.12.2019 before the CoC meeting scheduled to take place on 16.12.2019 and the CoC rejected the request of HIL and also approved t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the debt is included in the balance sheet of the corporate debtor as 'unsecured loan' in 'current liabilities' and further stated by the corporate debtor's Chartered Accountant A.K. Ray and Company in their letter dated 12.6.2019 (attached at pp. 626-627 of the Additional Documents Vol. IV, Dy. No. 40342 dated 14.10.2022). 46. The Learned Counsel for the erstwhile RP has clarified that signature of the RP appearing in the affidavit dated 19.12.2019 submitted by Mr. Sujit Dutta Roy under section 30(1) was done inadvertently and it was only done to complete the documentation for record, though the resolution plan had already been approved by the CoC on 16.12.2019. He has referred to the affidavit of Shri Ranjay Singh in this connection, who has given the correct affidavit on 24.10.2019 which was considered by the CoC along with the resolution plan (affidavit attached at pp.34-35 of documents submitted vide Dy. No. 39291 dated 8.9.2022). 47. The Learned Counsel for Successful Resolution Applicant Regus Impex has submitted that the corporate debtor is not in operation since 2007 and only dues of about 306 workers remain to be paid and added that the workers had the right to submit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no advantage that the corporate debtor or the Successful Resolution Applicant derived through the submission of resolution plan in this case and hence, there is no necessity for piercing the corporate veil. He has, further referred to 'Takeover Regulations' referred to in the Arcelor Mittal (supra) judgment, wherein to show ultimate control of a company requirement of positive evidence has to be established regarding some company said to be controlled by another company. 50. The Learned Counsel for Successful Resolution Applicant has also cited the judgment of Hon'ble Supreme Court in the matter of Pratap Technocrats Private Limited & Ors. vs. Monitoring Committee of Reliance Infratel Ltd. & Anr. [2021 10 Supreme Court Cases 623], wherein it is held that a challenge to the approval of the resolution plan by the creditors whose claims are pending for adjudication would not stand in the way of the approval of the resolution plan, more so when it is approved by the CoC by a clear and overwhelming majority. Referring to the principle that is laid down in this judgment, the Learned Counsel for Successful Resolution Applicant has claimed that even in the present case, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 18% rate of interest shown as time value of money are merely bald and unsubstantiated statements, with no corroboration from any document such as the loan agreement to establish them. He has also pointed out that original loan of Gain E-Commerce (a member of CoC) of Rs. 361.10 lakhs has become Rs. 6903 lakhs and that of Subhlaxmi Compusis of Rs. 1849.58 lakhs has become Rs. 12072 lakhs by claiming an exorbitant rate of interest of 18% compounded quarterly, which is unrealistic and much higher than the market norm, which also shows how the RP has acted to help the colluding parties to get a high vote share in the CoC and also that the payments after the resolution plan is approved are mostly to the companies of the same group, to the detriment of the workers. 54. The Learned Senior Counsel for HIL has also submitted that the common address and e-mail IDs used by various member-companies in the CoC and the Successful Resolution Applicant show that there is one 'controlling mind' who is directing all the actions and activities in the matter, and the presence of such a 'controlling mind' comes out clearly in connections and cross connections between members of the CoC, corporate d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommercial Ltd. and India Finance Pvt. Limited in the year 2006. These 'three companies' executed a tripartite agreement dated 2.6.2006 with HIW Workers' Union and HIL and undertook the obligation to make payments towards outstanding dues of the workers of the corporate debtor whereafter a share purchase agreement dated 10.7.2006 was also executed whereby 100% shareholding of HIL was transferred in the name of three companies named above. The tripartite agreement regarding payment of workers' dues was expressly stipulated to be a part of the share purchase agreement and also a condition precedent to the Share Purchase Agreement (refer to Vol. III of the appeal paperbook). It is also noted that the three companies failed to make payment of workers' dues and in the meanwhile the corporate debtor closed down its business operation in the year 2007. Also in the year 2007, these companies transferred their entire shareholding in the corporate debtor to Indo Wagon, in which Adishwar Nivesh holds 100% shareholding. Thus, it is clear that Adishwar Nivesh is the corporate entity controlling the corporate debtor. 58. It is also noted that pursuant to proceedings initiated by the HIW Workers' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the outstanding debt. These letters are attached at pp.419-420 of appeal paperbook Vol.II in CA No. 54/2022. We note that there is no other document evidencing the loan agreement and/or any rate of interest or in proof of disbursement of the loan claimed to have been given by the financial creditor to the corporate debtor. 61. The relevant portion of section 7 of IBC is reproduced below: "7. Initiation of CIRP by financial creditor - xx xx xx xx xx (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. (3) The financial creditor shall, along with the application furnish- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board. (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfaction by the Adjudicating Authority. 64. We also note that the section 7 applicant Nandakini has chosen not to be represented in any of the appeals under consideration in this judgment. In the absence of any pleadings of Nandakini regarding the contents of the section 7 application, we have relied on the application form along with attachments as submitted in Company Appeal (AT) (Ins.) No. 52/2022 (attached at pp, 402-420 of the appeal paperbook, Vol. II). On perusal, we note the section 7 application does not mention any loan agreement signed between the corporate debtor and financial creditor, but mentions a letter dated 15.4.2018 sent by financial creditor Nandakini Contractors to the director of corporate debtor Hirakud Industrial Works Ltd. wherein mention of a loan agreement dated 14.3.2016. This loan agreement is neither attached with the section 7 application nor it has been brought before us by any of the parties. The section 7 application form available in CA (AT) (Ins) No. 52/2022 is supposed to include two letters dated 15.4.2018 and 31.12.2018, but again letter dated 31.12.2018 is not found annexed with the section 7 application form. The letter dated 15.4.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other document including balance sheet from the side of the financial creditor, we wonder as to how the Adjudicating Authority could be satisfied with the requirements of section 7 of IBC regarding disbursement and default of the said loan amount. Therefore, the admission order under section 7 of IBC passed by the Adjudicating Authority stands on shaky foundation. 67. We consider the argument of the Learned Counsel for erstwhile RP that the Adjudicating Authority has to merely see whether there is a default in repayment of debt and that is the trigger for initiation of CIRP. He has cited the following from Hon'ble Supreme Court's judgment in the matter of Orator Marketing Pvt. Ltd. vs. Samtex Desinz Pvt. Ltd. (2021 SCC Online SC 513) in support:- "31. At the cost of repetition, it is reiterated that the trigger for initiation of the Corporate Insolvency Resolution Process by a Financial Creditor under Section 7 of the IBC is the occurrence of a default by the Corporate Debtor. "Default" means non-payment of debt in whole or part when the debt has become due and payable and debt means a liability or obligation in respect of a claim which is due from any person and includes fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e financial creditor Nandakini Contractors and the corporate debtor belong to the same group of companies which has been shown through two charts presented by the Learned Senior Counsel for HIL and which are reproduced in this judgment earlier. We also note that a request for urgent hearing was made by the counsels for the corporate debtor and the purported financial creditor Nandakini when the auction of the corporate debtor's assets had become imminent upon orders of the Hon'ble High Court of Odisha. After such a joint request was made to the Adjudicating Authority for urgent hearing, we note that the hearing took place immediately thereafter and the admission order was passed with inexplicable speed and alacrity when the Adjudicating Authority does not even appear to undertake proper scrutiny and necessary examination of section 7 application and the documents included therein. 72. On the basis of aforementioned discussion, regarding issues (i) and (ii), we are convinced that the section 7 application was submitted by Nandakini Contractors fraudulently in collusion with the corporate debtor to seek an admission order for CIRP of the corporate debtor, and such an admission order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court's judgment in the matter of Arcelor Mittal Pvt. Ltd. (supra), which is as follows :- "41. By Regulation 2(1)(g) of the 2011 Takeover Regulations, "persons acting in concert" is defined as follows: " 2. (1)(g) "persons acting in concert" means. (1) persons who, with a common objective or purpose of acquisition of shares or voting rights in, or exercising control over a target company, pursuant to an agreement or understanding, formal or informal, directly or indirectly cooperate for acquisition of shares or voting rights in, or exercise of control over the target company. (2) Without prejudice to the generality of the foregoing, the persons falling within the following categories shall be deemed to be persons acting in concert with other persons within the same category, unless the contrary is established- (i) a company, its holding company, subsidiary company and any company under the same management or control; (it) a company, its Directors, and any person entrusted with the management of the company; (ii) Directors of companies referred to in Items (i) and (ii) of this sub-clause and associates of such Directors; xx xx xx xx xx 42. It will be see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Escorts Ltd. [(1986) 1 SCC 264]:- "37. It is thus clear that, where a statute itself lifts the corporate veil, or where protection of public interest is of paramount importance, or where a company has been formed to evade obligations imposed by the aw, the court will disregard the corporate veil. Further, this principle is applied even to group companies, so that one is able to look at the economic entity of the group as a whole." 81. We rely on the above observations insofar as piercing the corporate veil is concerned, in order to examine the role and conduct of companies involved in the present case. We are of the view that piercing the corporate veil is absolutely necessary to be able to see the role of various companies which are part of the same group, to examine the issue of de facto control of companies. We are also of the view that in examination of possible fraud, piercing of the corporate veil is not only necessary but also apt at even this stage of appeal in the case. 82. We are, therefore, of the view that this is a fit case of piercing the corporate veil to examine the interconnections and relatedness of the various parties such as the corporate debtor, the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (which are members of CoC) is in a position to advise, direct and instruct these four companies. Thus, by definition of clause (f) of section 5(24-A), the above mentioned four companies are 'related parties' of the corporate debtor and hence their position as members of CoC and to be represented, participate and vote in meetings of the CoC is completely untenable and infringes the first proviso of section 5(24) of IBC. This glaring instance of 'related parties' of the corporate debtor becoming members of the CoC is sufficient to make the constitution of CoC illegal and render all the decisions and resolutions adopted in CoC meetings with participation and voting of the four companies referred above null and void in the eyes of law. 86. It is necessary to look at the nature and conduct of companies involved in the initiation of CIRP and further proceedings in the CIRP to examine whether, after the fraudulent initiation of CIRP of the corporate debtor had taken place, the CoC constituted by the erstwhile RP was actually in accordance with the provisions of IBC. In doing so, it is useful to look at the shareholding pattern of various members of the CoC:- (i) Gain E-Commerce (Adishw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings with Adishwar Nivesh, which is the holding company of Indo Wagon which is the holding company of the corporate debtor. (iii) Miller Traders, Gain E-commerce, Subhlaxmi Compusis, Mekong Rubber, Luni Housing & Developers and Dahisar Traders, which constitute six of the seven members of the CoC are intricately connected with Adishwar Nivesh, which controls the corporate debtor. Therefore, these six corporate entities as members of the CoC are closely connected parties of the corporate debtor. 91. We also note that, in addition, the same directors are present in the boards of many companies in the CoC. As pointed out earlier, taking just one illustrative example of Mr. Sujit Dutta Roy, who is a director of the corporate debtor, is also a director in Subhlaxmi since 31.3.2019. He is also a director in Varsha Fabrics/Purbanchal Power (which is connected with the corporate debtor as one of the original three companies that bought the corporate debtor after disinvestment) and five of the CoC members, namely, Miller Traders, Nandakini, Gain E-Commerce, Subhlaxmi Compusis and Dahisar Traders along with being present in Divya Mercantile, Sheetal Exports, Enormous Nivesh and Goldman St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... often than not process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation." "A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage." "A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party." 95. On the issue of fraud and its effect, the following is held by Hon'ble Supreme Court in State of A.P. and Anr. Vs. T. Suryachandra Rao [2005 (6) SCC 149]: - ""Fraud" as is well known, vitiates every solemn act. Fraud and justice never dwell t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 65 of the IBC, we set aside the admission order of the section 7 application as its basis, the section 7 application, and loan therein which is claimed to be due and in default are found to be fraudulent. 98. While the existence of fraud in initiation of CIRP is quite apparent now, the issue about constitution of CoC with related parties or with parties who are part of the same group of companies acting 'in concert' becomes inconsequential. This is so because once the foundation of CIRP crumbles, all the later happenings in the CIRP would not have any base to stand on. Yet, if the constitution of CoC is also found to be defective, it would only add further strength to the argument that companies belonging to the same group conspired to first get a CIRP initiated through fraudulent means and thereafter works towards carrying the project further by constituting the CoC with connected parties who took decisions to subvert the objectives of the IBC. It is with this idea that we look the matter of constitution of CoC. 99. Insofar as alleged 'defective' constitution of CoC is concerned, we note that in the matter of Jayanta Banerjee (supra) this tribunal has held as follows:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttee of Creditors based on the Financial Creditors' submission of claims even without verification, despite that one of the financial creditors had explicitly requested to defer the e-voting on the resolution of the 5th CoC dated 5th December 2019, till the verification of voting percentage and compliance of CIRP process. The IRP/RP has formed the Committee of Creditors without admitting the claims of the Financial Creditors, which violate Regulation 12 (3) of the CIRP Regulations. 101. Thus, it is amply clear that the constitution of CoC with related parties of the corporate debtor participating in the CoC as a majority, is also vitiated. Consequently, we find force in the submission of the Appellants HIL and HIW Workers Union that the corporate debtor is influencing decisions in the CoC and through members of the CoC, who have shareholding and through the CoC. The decisions, therefore, that are taken in the CoC meetings are coloured and are infringement of second proviso of section 21(2). 102. We now come to actions taken by RP during the progress of CIRP. The first and foremost striking instance of the act of omission by the RP is displayed when the Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vement of related parties, and interrelationships between all entities involved in the CIRP, specifically raised by the Appellant in the Additional Affidavit filed in Appellant's IA (IBC) No.1/CTB/2020 as well as IA (IBC) No. 50/CTB/2020 and in HIW Workers Union's IA No. 42/CTB/2020 filed under Section 65 of the IBC. As a person responsible for undertaking the CIRP in a responsible and impartial manner, it was incumbent upon him to do so. 105. We note that the duties of the IRP enshrined in section 18 and duties of the RP enshrined in section 25 of the IBC respectively place a responsibility on the IRP/RP to collect all information relating to assets, finance and operations of the corporate debtor for determining the financial position of the corporate debtor. More specifically, Regulation 9-A and 12 of the CIRP Regulations seek to provide opportunity to a creditor to submit his claim in specified format along with proof of claims. Further, the RP is responsible for maintaining an updated list of claims in Regulation 12-A and make them available for inspection in accordance with Regulation 13. In light of these provisions, when we look at the duties of IRP/RP and the detailed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hareholding in Dahisar Traders and Sheetal Exports also has a 15.8 % shareholding in Adishwar Nivesh, which holds 99.98 % shares in Indo Wagon, which is the holding company of the corporate debtor. Additionally, Divya Mercantile and Fragment Nivesh are holding 1.74% and 1.05% shares in the Dahisar Traders are also shareholders to the extent of 28.45% and 17.55% respectively in Adishwar Nivesh, thereby exhorting an influence which is an infringement of clauses (k) and (m) of section 5(24) of the IBC. The linkage between the corporate debtor Hirakud and Regus Impex is quite apparent, which has been brought out in the chart submitted by the Appellant HIL which is included in this judgment. 109. We also consider the argument of the Learned Counsel of SRA that even if the parties who are included in the COC and are alleged to be related parties are excluded, the COC would then comprise of just one financial creditor which is the bank and since the bank has acceded to the approval of the resolution plan of Regus Impex there would be no effect of such exclusion on the approval of the plan by the CoC. Regarding this issue, he has cited the judgment of Hon'ble Supreme Court in Pratap Techn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no implication in respect of the distribution to operational creditors under the resolution plan." The above statement has not been controverted during the course of the submissions." 110. Regarding the observations in the Pratap Technocrats judgment (supra) judgment, we are of the view that the present case is a case of fraudulent and malicious initiation of CIRP, and hence, when the basic edifice on which the resolution plan of the corporate debtor is based is non est in law, the superstructure of the resolution plan cannot sustain itself maintain its existence. 111. We also consider the argument of the Learned Counsel of the Resolution Professional that the Adjudicating Authority has to merely see whether there is a debt and default in payment and no other issue is to be considered in the admission of an application under section 7. He has submitted the following judgment of Hon'ble Supreme Court in the matter of Orator Marketing Pvt. Ltd. vs. Samtex Desinz Pvt. Ltd. (2021 SCC Online SC 513) in this regard:- "At the cost of repetition, it is reiterated that the trigger for initiation of the Corporate Insolvency Resolution Process by a Financial Creditor under Section 7 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bled due to faulty admission of the section 7 application. 114. In the present case, as the initiation of CIRP itself has been found to be tainted and faulty, and in addition, the subsequently constituted CoC is also found to include parties that are connected with each other and acting in concert with the corporate debtor and other parties, we are of the opinion that the interest of justice would be served if the admission order under section 7 passed by the Adjudicating Authority is quashed. We, therefore, set aside the said admission order which would lead to all the other actions including CIRP as non est and null and void. 115. Thus, beginning with the initiation of CIRP to the constitution of CoC, its various decisions and resolutions and the denial of opportunities to the workers to submit their claims (although such a request was not made explicitly and also there was a delay when the HIW Workers' Union contacted the RP for copies of Section 7 application and pleadings therein), we are of the view that all these proceedings are fraudulent and also reek of malice and are, therefore found to be bad in law. 116. On the basis of aforementioned detailed discussion, we give th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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