TMI Blog2023 (5) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... .1,13,63,918/- - Once the resolution plan has been approved vide the Impugned Order the issue of any claim could not be agitated or brought up at this late stage. The Judgement of the Hon ble Supreme Court in the matter of Jaypee Kingston Boulevard Apartments Welfare Association Ors. [[ 2021 (3) TMI 1143 - SUPREME COURT] ] is followed, where it was held that once the Appellant did not challenge the admission of a reduced amount against the submitted claim, the same cannot be challenged after approval of the resolution plan. Allocation of payments to various classes of creditors - HELD THAT:- It is seen that the resolution plan proposed payments to the operational creditors including Appellant as NIL , which was in accordance with the liquidation value of the corporate debtor. Thus the payments to operational creditors in the approved resolution plan is in consonance with Section 30(2)(b) of the IBC, and hence, it has been correctly approved by the CoC by the Adjudicating Authority and does not require any interference. Discrimination in payments inter se between the financial creditors and operational creditors - HELD THAT:- Reliance placed in the judgment of Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the corporate debtor Vadraj Energy (Guj) Limited . 2. In brief, the facts of the case are that the Appellant Company is an operational creditor of the corporate debtor and in the Corporate Insolvency Resolution Process (in short CIRP ) of the corporate debtor initiated on 08.01.2020, the Appellant filed its claim along with Form-B containing proof of the claim to the Interim Resolution Professional ( IRP ) vide letter dated 29.01.2020, and its claim amounting to Rs.2,53,85,908/- related to the operational debt with regard to the operations and maintenance services provided by the Appellant to the corporate debtor in its power plants. 3. The Appellant has further submitted that the work orders and invoices relating to the operational debt were submitted by him along with claim form vide letter dated 29.01.2020, whereafter the RP, through an email dated 29.06.2020, requested for submission of certain documents relating to the claim and the Appellant through email dated 30.06.2020 informed the RP that all the documents requested by the RP through email dated 29.06.2020 will be sent to RP by 01.07.2020. Thereafter, the Appellant submitted the requested documents vide em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 29.01.2020, submitted its claim amounting to Rs.2,53,85,908/- along with proof of the claim. This claim was regarding the operational debt owed by the corporate debtor to the Appellant regarding operation and maintenance services provided by the Appellant to the corporate debtor in its power plants. The Learned Counsel for the Appellant has further submitted that the RP, after examining the claim submitted by the Appellant, informed the Appellant that its claim amounting to Rs.1,13,63,918/- was admitted. Thereafter the Appellant submitted further proof regarding the balance amount which was not admitted but he was informed by the RP that no claim submitted beyond 30.06.2020 would be considered. He has further submitted that much later, vide email dated 15.10.2021, the Appellant was informed by the RP that a resolution plan with respect to the corporate debtor had been approved by the Adjudicating Authority, wherein, against the admitted claim of Rs.1,13,63,918/- the Appellant had received NIL amount as payment. 8. The Learned Counsel for the Appellant has further submitted that even though it was stated in the resolution plan that a sum of Rs.10 Lakh would be paid to the ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted by Respondents No. 2 3, which was duly examined by the RP and finally approved by the CoC in its meeting dated 23.08.2021 with 100% voting share. He has claimed that the Appellant never raised any objection or challenge to the contents of the resolution plan or the approval thereof by the CoC, and is now coming at a very late stage, after the resolution plan was approved by the Adjudicating Authority, raising objection about the amount of his admitted claim and also the payments envisaged in the resolution plan. 12. The Learned Counsel for the Respondent/RP has further submitted that duty of the RP has to merely examine and ensure that the resolution plan meets the requirements of Section 30(2) and this duty was performed sincerely and diligently by the RP whereafter the CoC approved the modified resolution plan in its meeting dated 23.08.2021. He has pointed out that the Appellant has not made out any ground alleging violation of Section 30(2) of the Code against the RP. Further he has referred to the judgement of the Hon ble Supreme Court in the matter of K. Sashidhar Vs. Indian Overseas Bank Ors., [(2019) 12 SCC 150], which holds that the jurisdiction to be exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Appellant did not challenge the admission of his reduced claim at the time when the Appellant received information about the admission of its claim, and the same cannot be challenged now at a much later stage, particularly after the approval of the resolution plan. In support he has cited the judgment of Hon ble Supreme Court in the matter of Jaypee Kingston Boulevard Apartments Welfare Association Ors. Vs. NBCC (India) Limited Ors., [(2022 (1) SCC 401] regarding any possible discrimination between the payments to operational creditors and financial creditors. He has referred to the judgement of the Hon ble Supreme Court in the matter of K. Sashidhar (Supra) to emphasize that the appeal to NCLAT regarding the approval of resolution plan is to be done only to the limited extent whether the plan meets with the requirements of Section 30(2) and Section 31(2) read with Section 31(1) of the Code, which is not the case in the present matter. 15. The two issues that arise for consideration in the present Appeal are:- (i) Whether the Appellant can raise the issue of admission of reduced amount of his claim, at a much belated stage, after the approval of resolution plan? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant was closed and nothing was required to be done. Further, there was nobody who was authorize to sing any documents and hence, your Invoices post June 2018 are not tenable and thus not acceptable. Therefore, only amount of Rs.1,13,63,918/- is admitted. Thanking You. Raj Kumar Poddar Resolution Professional of Vadraj Energy (Gujarat) Limited 18. Thus, it is quite clear that the Appellant had been informed without any ambiguity and with clarity that since the power plant was closed w.e.f. 30.06.2020, only an amount of Rs.1,13,63,918/- was admitted against his submitted claim. We further note that through email dated 15.10.2021, the RP informed the Appellant that NCLT, Ahmedabad had approved the resolution plan for the corporate debtor vide its order dated 07.10.2021 and his admitted claim has received NIL allocation as per the approved resolution plan. 19. It is thus clear that after the RP had finally informed the Appellant vide email dated 02.09.2020 that only an amount of Rs.1,13,63,918/- was admitted, the Appellant did not take any further action about either preferring an appeal before the Adjudicating Authority on the matter of admission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 shall not be less than the amount to be paid to such creditors in accordance with sub-section (1) of Section 53 in the event of a liquidation of the corporate debtor. Explanation 1. For removal of doubts, it is hereby clarified that a distribution in accordance with the provisions of this clause shall be fair and equitable to such creditors. 22. It is seen that the resolution plan proposed payments to the operational creditors including Appellant as NIL , which was in accordance with the liquidation value of the corporate debtor. Thus the payments to operational creditors in the approved resolution plan is in consonance with Section 30(2)(b) of the IBC, and hence, it has been correctly approved by the CoC by the Adjudicating Authority and does not require any interference. 23. On the issue of discrimination in payments inter se between the financial creditors and operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it has adequately balanced the interests of all stakeholders including operational creditors. This being the case, judicial review of the Adjudicating Authority that the resolution plan as approved by the Committee of Creditors has met the requirements referred to in Section 30(2) would include judicial review that is mentioned in Section 30(2)(e), as the provisions of the Code are also provisions of law for the time being in force. Thus, while the Adjudicating Authority cannot interfere on merits with the commercial decision taken by the Committee of Creditors, the limited judicial review available is to see that the Committee of Creditors has taken into account the fact that the corporate debtor needs to keep going as a going concern during the insolvency resolution process; that it needs to maximise the value of its assets; and that the interests of all stakeholders including operational creditors has been taken care of. If the Adjudicating Authority finds, on a given set of facts, that the aforesaid parameters have not been kept in view, it may send a resolution plan back to the Committee of Creditors to re-submit such plan after satisfying the aforesaid parameters. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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