TMI Blog2024 (1) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... erest @ 8%, from the order dated 13.04.2022 till 12.07.2022 but it was still not complied with and this fact has been noticed by the Hon ble Supreme Court in its order dated 29.08.2022 passed in Civil Appeal No. 3660 of 2022 in which the order dated 13.04.2022 was challenged by one operational creditor, M/s Vishal Nirmiti Pvt. Ltd. In such circumstances, when the Appellant has miserably failed to implement the resolution plan, the RP filed I.A. No. 283 of 2022, praying therein for extension of period of CIRP of 60 days, which was allowed on 05.09.2022. The Appellant is not a stakeholder within the ambit of Section 31(1) of the Code qua the Corporate Debtor after having been unsuccessful as a resolution applicant and has no locus standi to file the present appeal and in this regard, reliance has been placed upon the judgment rendered by this Tribunal in the case of Ravi Shankar Vedam vs. Tiffins Barytes Asbestos and Paints Limited and Others [ 2023 (6) TMI 1250 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI] where it has been held that the Promoter / Shareholder of the Corporate Debtor Company has no locus to challenge the Plan, after its approval. There is hardly any me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the NCLT Rules, 2016 with a prayer (a) to allow the present application and grant an extension of 60 days from 23.01.2022 for implementation of the Applicant s Resolution Plan dated 7 August, 2020. (b) To pass an order directing the RP not to encash and/or forfeit the Applicant s Bank Guarantee No. 52760IGL0003421 for INR 56,00,00,000/- valid from 24.07.2021 until 23.01.2022 issued by Union Bank of India in favour of the RP, pending the present application . This application was dismissed on 01.02.2022 with the observation that 6. This Adjudicating Authority is not convinced in any manner to grant any further time. Hence, this application is rejected. CoC is directed to take appropriate steps in the light of the dismissal of this application, within a week. 7. Further the prayer for restraining the RP from enchasing the EMD cannot be acceded to, in view of the fact that the stipulated time has already elapsed long back. 8. Accordingly, the amount paid as the EMD by the Applicant shall have to be forfeited and proceedings under Section 74(3) of the Code have to be initiated as per law. 9. With the above, application bearing I.A. No. 77 of 2022 stands dismissed. The Order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns) No.86/2022 stands disposed of. No costs. The pending connected I.A. Nos.183 184/2022 are closed. 4. One Financial Creditor M/s Vishal Nirmiti Pvt. Ltd. challenged the order dated 13.04.2022 before the Hon ble Supreme Court by way of Civil Appeal No. 3660 of 2022 which was dismissed by the Hon ble Supreme Court vide its order dated 29.08.2022 which is reproduced as under:- This appeal under Section 62 of the Insolvency and Bankruptcy Code, 2016 (IBC) filed by the Appellant, an Operational Creditor of the Corporate Debtor, is against a judgment and order dated 13.04.2022, passed by the National Company Law Appellate Tribunal at Chennai, the operative part whereof is set out hereinbelow for convenience :- The Successful Resolution Applicant although had addressed vide letter dated 12.04.2022 to the Resolution Professional, Monitoring Committee, Committee of Creditors in the matter of Indu Projects Ltd. seeking six months time to remit the residual balance amount together with overdue interest @ 8% per annum, this Tribunal is granting three months time from today, to pay the residual balance amount in the Designated Account along with overdue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make the payment. Against the aforesaid order, the Respondent No. 1 appealed to the NCLAT under Section 61 of the IBC. The impugned order has been passed in the said appeal. The Appellant, who as stated above, is an Operational Creditor contends that the impugned order is prejudicia to the right of the Appellant to receive the amounts payable to the Appellant under the approved Resolution Plan, within the timelines thereunder. Three months time granted to the Resolution Applicant (Respondent No. 1) to pay the residual balance amount in the designated account along with overdue interest, has expired. No payment has been made. The appeal has, thus, become infructuous and is dismissed. The NCLT may proceed further with the matter, in accordance with law. 5. The RP (Respondent No. 2) filed I.A. No. 283 of 2022 before the Adjudicating Authority in CP (IB) No. 372/HDB/2018 in which one of the prayer was to made to pass an order allowing extension of CIRP for a period of 60 days from the date of such order and allowing RP/CoC to invite fresh bid in relation to the CD, and further obtain approval of resolution plan. This application was allowed vide order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Adjudicating Authority (`National Company Law Tribunal , Hyderabad Bench-II), whereby, the Adjudicating Authority , dismissed the Petition filed under the Insolvency Bankruptcy Code, 2016 (in short I B Code , 2016). Brief Facts: 2. M/s Earthin Projects Ltd. is the Appellant in present `Appeal , before this Appellate Tribunal is the Successful Resolution Applicant . Mr. Anup Kumar Singh is a `Resolution Professional of `Indu Projects Ltd. , is the 1st Respondent herein. `Indu Projects Ltd. , is the Corporate Debtor under Corporate Insolvency Resolution Process , is the 2nd Respondent herein. 3. On an application filed by the Bank of India as Financial Creditor of the Corporate Debtor (Indu Projects Ltd.), the Adjudicating Authority admitted Corporate Insolvency Resolution Process on 25.02.2019 and Mr. Gopi Krishna Byadigera was appointed as Interim Resolution Professional on 05.03.2019. However, on the recommendation of the Committee of Creditors , Mr. Anup Kumar Singh was appointed as Resolution Professional by the Adjudicating Authority , on 04.06.2019. 4. The 1st Respondent invited Expression of Interest in F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he payments made till that date shall be liable for forfeiture. The RA confirms that in case the RA fails to pay the balance instalments as mentioned in the Resolution Plan, and there is subsisting default beyond 7 days from schedule date, such default amount shall be liable for simple interest @ 8% per annum . 7. In terms of the approved Resolution Plan a monitoring committee was formed on 28.10.2021 consisting of three representative one each from Resolution Professional , Financial Creditor and Successful Resolution Applicant (the Appellant herein). 8. The Appellant has brought out that he was under honest belief that effective date being 25.10.2021 i.e. date when approved Resolution Plan was uploaded (in contrast to the provisions made in the Resolution Plan which defines effective date as date of order of approved by the Adjudicating Authority which was 01.10.2021). Be that as it may, the Appellant failed to make payment of Rs. 501 crores within 90 days of the effective date. The Appellant has brought out that this was due to post COVID- 19 uncertainly, delayed disbursement of fund by global investors etc. The Appellant approached the 'Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .8, wherein the amount paid as Earnest Money Deposit by the Applicant shall have to be forfeited and proceedings under Section 74 (3) of the I B Code, 2016 have to be initiated as per Law shall not hold good. In so far as the observations made by the Adjudicating Authority , ( National Company Law Tribunal , Hyderabad Bench) in the impugned order in IA No.77 of 2022 in IA No.861 of 2020 in CP(IB)-372/7/HDB/2018 are to the fact that we are very upset with the manner in which the Monitoring Committee has given a very very long rope to the Applicant in making the payment. We get a doubt on the fairness of the Monitoring Committee with regard to implementation of the Resolution Plan to that extent is expunged by this Tribunal in furtherance of substantial cause of justice . Accordingly, the instant Company Appeal (AT)(CH)(Ins) No.86/2022 stands disposed of. No costs. The pending connected I.A. Nos.183 184/2022 are closed. [emphasis supplied] 11. This Appellate Tribunal note that in the meantime one Operational Creditor M/s Vishal Nirmiti Pvt. Ltd. approached Hon ble Supreme Court of India vide Civil Appeal No. 3660 of 2022 under Section 62 of I B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st Respondent to complete the Corporate Insolvency Resolution Process a fresh within 60 days from the date of order dated 05.09.2022 and also made clear that no further extension would be given. The relevant portion of the judgment of the Adjudicating Authority dated 05.09.2022 is also been quoted as under :- This IA is filed by the Resolution Professional seeking extension of 60 days time to conduct the CIRP afresh in the light of the failure of the successful bidder in honouring the commitments made in the Resolution Plan. The IA is allowed and the Resolution Professional is directed to complete the Corporate Insolvency Resolution Process afresh, within 60 days from today and no further extensions, whatsoever, will be granted in the matter. Accordingly, prayer in Item No. C in IA(IBC)/283/2022 is allowed. Prayers in Item Nos. A, B are not pursued by the Resolution Professional. In view of passing of the order in this IA and taking into consideration the earlier orders of this Bench on 01.03.2022 rejecting granting of extension of time to the Successful Resolution Applicant (SRA) and also the NCLAT orders dt.13.04.2022 passed in an appeal preferred against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Plan. 15. The Learned Counsel for the Appellant emphasised that due to post COVID-19 circumstances including uncertain economic environment, procedural delays and delayed disbursement of fund by global investors the Appellant could not meet the time line for settling claims as given in the Resolution Plan and accordingly the Appellant approached the Adjudicating Authority by way of I.A. No. 77 of 2022 (Extension Application) for seeking extension of timelines, however the Adjudicating Authority dismissed the extension application ignoring the prevailing circumstances and genuine ground for seeking extension. 16. The Learned Counsel for the Appellant pointed out that despite his best intension to resolve the matter and bring back the Corporate Debtor from liquidation stage, the 1st Respondent approached the Adjudicating Authority vide I.A 283 of 2022 with several prayer, inter-alia, invoking EMD bank guarantee of the Appellant and initiating fresh Corporate Insolvency Resolution Process . 17. The Learned Counsel for the Appellant mentioned that aggrieved by this he approached this Appellate Tribunal in CA (AT)(CH) (Ins.) No. 86 of 2022. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Partem . The Learned Counsel for the Appellant also assailed the Adjudicating Authority failed to give proper speaking order. 21. The Learned Counsel for the Appellant stated that they had already made part payment of around Rs. 60 crores under the Resolution Plan and if the impugned order is not set aside, the investment made by the Appellant will go down the drain. The Learned Counsel for the Appellant also stated that the very purpose of the I B Code, 2016 is to bring back the Corporate Debtor from the brink of the Insolvency and put it back as a going concern. The Learned Counsel for the Appellant also mentioned that since then they have tied up the funds with foreign entities and are ready to settle the Resolution Plans . The Learned Counsel for the Appellant further stated that the Resolution Plan itself had foreseen the circumstances of delay and provided for delayed payment @ 8% which they are willing to pay. 22. The Learned Counsel for the Appellant stated that the Adjudicating Authority failed to exercise inherent powers granted to it under Section 60(5) of the I B Code, 2016 to meet ends of justice. 23. The Learned Counsel for the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal. The Learned Counsel for the Respondent brought to the notice of this Appellate Tribunal that I.A No. 654 of 2022 filed by the Appellant for seeking urgent and immediate relief against expromoters/ directors of the Corporate Debtor including request of forensic audit did not have any substance on merit and was initiated only to delay the whole proceedings and making the payments as per Resolution Plans . The Learned Counsel for the Respondent also assailed the contention of the Appellant that he was not given an opportunity of being heard and his rights of natural justice were breached were simply misconstrued as the Adjudicating Authority considered all the relevant factors into consideration before disposing I.A. No. 654 655 of 2022. The Learned Counsel for the Respondent also mentioned that the Resolution Plan was supposed to be prepared with due diligence and the Appellant cannot be allowed to raise boggy issues to circumvent the settlement payments. 28. The Learned Counsel for the Respondent also denied averments made by the Appellant that he was not given hearing in I.A. No. 655 of 2022 ( Impleadment Applications ). The Learned Counsel for the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court of India in the matter of K. Shashidhar vs. Indian Overseas Bank and Others (2019) 12 SCC 150; Committee of Creditors, Essar Steel India Limited vs. Satish Kumar Gupta and Ors. (2020) 8 SCC 531; Maharashtra Seamless Limited vs. Padmanabhan Venkatesh and Others (2020) 11 SCC 467 gave very clear verdict that commercial wisdom of CoC is supreme and neither the Adjudicating Authority not the Appellate Authority can trespass the commercial wisdom of the Committee of Creditors . 32. The Learned Counsel for the Respondent mentioned that the pursuant to the Adjudicating Authority order dated 05.09.2022, the 1st Respondent has already issued fresh Form G inviting Expression of Interest from perspective Resolution Applicants on 19.09.2022 in order to revive the Corporate Debtor and any intervention at this stage will only frustrate the whole process and reduce the economic value of the Corporate Debtor . 33. The Learned Counsel for the Respondent concluded his arguments with the strong plea to dismiss the Appeal. Findings 34. Heard the Learned Counsel for the Appellant and the Respondents and also perused record made available to us. Several ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of a liquidation of the corporate debtor under section 53; (c) provides for the management of the affairs of the Corporate debtor after approval of the resolution plan; (d) the implementation and supervision of the resolution plan; (e) does not contravene any of the provisions of the law for the time being in force; (f) conforms to such other requirements as may be specified by the Board. [Explanation. For the purposes of clause (e), if any approval of shareholders is required under the Companies Act, 2013 (18 of 2013) or any other law for the time being in force for the implementation of actions under the resolution plan, such approval shall be deemed to have been given and it shall not be a contravention of that Act or law]; (3) The resolution professional shall present to the committee of creditors for its approval such resolution plans which confirm the conditions referred to in subsection (2). [(4) The committee of creditors may approve a resolution plan by a vote of not less than 5 [sixty-six] per cent. of voting share of the financial creditors, after considering its feasibility and viability, and such other requirements as may be specified by the Board: Provided that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has provisions for its effective implementation.] (2) Where the Adjudicating Authority is satisfied that the resolution plan does not confirm to the requirements referred to in sub-section (1), it may, by an order, reject the resolution plan. (3) After the order of approval under sub-section (1), (a) the moratorium order passed by the Adjudicating Authority under section 14 shall cease to have effect; and (b) the resolution professional shall forward all records relating to the conduct of the corporate insolvency resolution process and the resolution plan to the Board to be recorded on its database. [(4) The resolution applicant shall, pursuant to the resolution plan approved under sub-section (1), obtain the necessary approval required under any law for the time being in force within a period of one year from the date of approval of the resolution plan by the Adjudicating Authority under sub-section (1) or within such period as provided for in such law, whichever is later: Provided that where the resolution plan contains a provision for combination, as referred to in section 5 of the Competition Act, 2002 (12 of 2003), the resolution applicant shall obtain the approval of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yments made till that date shall be liable for forfeiture. The RA confirms that in case the RA fails to pay the balance instalments as mentioned in the Resolution Plan, and there is subsisting default beyond 7 days from schedule date, such default amount shall be liable for simple interest @ 8% per annum . Taking 01.10.2021 as effective dated 90 days period and additional 60 days with interest of 8 % per annum would be over quite sometime back. Admittedly, the Appellant till date, even after substantial period is over has paid around Rs. 60 crores as against required to be Rs. 501 crores as per Resolution Plan in addition to Rs. 40 crores as working capital (total Rs. 541 crores). Thus, broadly 90% of Resolution Plan settlement amount is yet to be brought in by the Appellant . It is noted that this Appellate Tribunal has granted additional three months period vide its earlier order dated 13.04.2022 which has also been noted by the Hon ble Supreme Court of India while disposing the appeal against this Appellate Tribunal s order as discussed earlier in preceding paragraphs. The Adjudicating Authority while disposing I.A. No. 283 of 2022 filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 283 of 2022 without disposing First Appellant s Interlocutory Application. It is a case of the Appellant that the Adjudicating Authority erred in summarily dismissing the direction and Impleadment Application without appreciating the merit for non-speaking impugned order . This Appellate Tribunal has already noted and brought in preceding paragraphs averments made by the Respondent on above contentions of the Appellant . It has been observed from the order of the Adjudicating Authority while disposing I. A 283 of 2022 vide order dated 05.092022 that the Adjudicating Authority has factored into I.A. No. 654 of 2022 and has recorded that this has become infructuous due to non payment by the Appellant and failure to comply with the orders dated 13.04.2022 passed by this Appellate Tribunal . The Adjudicating Authority has also taken a view that once the extended time lines of stipulated by this Appellate Tribunal is over the Adjudicating Authority do not have any further power to extend the time lines. As regard, I.A No. 655 of 2022 the Adjudicating Authority has mentioned that no such I.A s was filed by the Resolution Professio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Resolution Plans. The Appellant while submitting the Resolution Plan was supposed to know all the circumstances including economic uncertainties, if any, and requirement for generation of funds. It can not be the case of the Appellant to invoke such pleas subsequent to approval of Resolution Plan . This Appellate Tribunal also note that despite substantial period of the approval of the Resolution Plan , the Appellant is yet to settle around 90% of its liabilities towards the Resolution Plan . It is a fact that the timely resolution is very important in case the value of the Corporate Debtor is required to be preserved and in order to ensure maximisation of value of assets of the Corporate Debtor . This Appellate Tribunal has also noted that pursuant to the Adjudicating Authority order for fresh Corporate Insolvency Resolution Process , the 1st Respondent has already issued fresh Form-G on 19.09.2022 inviting fresh Expression of Interest from prospective Resolution Applicants and any interference at this stage will hamper the entire process and perhaps may lead to liquidation which is practically death knell of the Corporate Debtor . In view of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we do not make any comments or observations concerning the second request. 8. In the meantime, it is pertinent to mention that the CoC (Respondent no. 4) approved the plan of Respondent No. 3 (Consortium of B Subba Reddy and C Venkateswara Reddy) on 03.02.2023 and Respondent No. 3 remitted a sum of Rs. 40 Crs. on 09.03.2023 as per plan. 9. The Respondent No. 2 filed I.A. No. 305 of 2023 before the Adjudicating Authority for approval of the resolution plan submitted by the Respondent No. 3. In this application, the Appellant filed I.P. No. 8 of 2023 seeking intervention, however, the said application was dismissed on 19.06.2023 with the following order:- 1. This application is filed by the Applicant M/s. Earthin Projects Ltd, seeking to implead himself as Respondent in IA No.305 of 2023 in CP No.372/HDB/2018 and not to pass any order in IA No.305 of 2023 in CP No.372/HDB/2018, during the pendency of this Application. 2. The brief facts of the case as per the application, are as follows: a. The Application is filed on behalf of the Applicant in consortium with K. Ramachandra Rao Transmission Projects Private Limited. The Corporate Debtor (CD) was taken i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant herein, who is necessary and proper Party to the Application. g. In the above facts and circumstances, it is prayed to permit the Applicant to be impleaded in the above Application to place all material facts on record and till then not to pass any orders in the IA. Hence, this application. 3. The Respondents filed Counter, denying the averments of the Petition. It is further contended that the Applicant has filed the instant application, seeking specific directions against the interest of the Respondents. At the very outset, the Applicant has no Locus Standi to file this Application. It is only filed in order to derail the time-bound process of CIRP of the CD. It is further submitted that the Resolution Plan submitted by the Applicant was approved by the CoC and also by the Tribunal. The Applicant was required to bring a total amount of Rs.541 Crores towards the Resolution Fund as per the approved Resolution Plan within 90 days from the effective date. But he could not implement the Resolution Plan within the stipulated timeline. a. The Applicant preferred an Interim Application No.77 of 2022 before this Tribunal, seeking an extension of 60 days from 23.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon ble NCLAT. Apart from that, it can be seen that inspite of the time being extended, the Applicant could not implement the Plan. Hence, the Resolution Plan of the Applicant got to be rejected and the Earnest Money Deposit was also forfeited. By order dated 05.09.2022, this Tribunal permitted the RP to conduct the CIRP afresh in the light of the failure of the Applicant in following the commitment made in the Resolution Plan. Against the said order, the Applicant moved the Hon ble NCLAT, Chennai by way of an Appeal. The Hon ble NCLAT, Chennai observed that; This Appellate Tribunal has already discussed that in its earlier order dated 13.04.2022 three additional months period was given to the Appellant to settle all the payments as per the approved Resolution Plan. Subsequently, in different appeal filed by one Operational Creditor before the Hon ble Supreme Court of India challenging this Appellate Tribunal s Order vide Civil Appeal No.3660 of 2022, the Hon ble Supreme Court of India dismissed the same vide order dated 29.08.2022. Accordingly, three months period extended by the Appellate Tribunal was also over and no payment was made. Hence, prima-facie, it looks that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Applicant, has no `Locus , to `assail a `Resolution Plan or its `implementation , coupled with a candid fact that he is not a `Stakeholder , as per Section 31(1) of the I B Code, 2016, in relation to the `Corporate Debtor , this `Tribunal , without any haziness, holds that the Appellant is not an aggrieved person coming within the ambit of Section 61(1) of the I B Code, 2016, especially when he is not a privy to the Resolution Plan. 4. He submits that the Applicant herein is not an Unsuccessful Resolution Applicant and he is in fact a Successful Resolution Applicant and hence, dismissing the application on the premise that the Applicant is an Unsuccessful Resolution Applicant and hence does not have locus, is erroneous. 5. As regards the jurisdiction of this Tribunal to recall its own Order, the Counsel relies on the judgement of the Hon ble Supreme Court in Civil Appeal No.955 of 1985 between Budhia Swain and Ors. Vs. Gopinath Deb and Ors, wherein, the Hon ble Supreme Court observed as follows: What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank Vs. M/s Satyam Fibres India Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relying on the 1st cited judgement rendered by the Hon ble Supreme Court, he seeks for recall of the Order. 9. A look at the brief facts of the case as are necessary and relevant would be beneficial. At the outset it can be said that the term unsuccessful suits the applicant better than many. The Applicant nevertheless was a Successful Resolution Applicant, but he became unsuccessful in getting the Resolution Plan accepted due to his failure in fulfilling the conditions under the Plan which is to pay the amount provided for under the Plan. 10. Due to his inability to pay the amount within the given time, the Applicant has sought for extension of time for payment which was granted by this Tribunal. Even after expiry of the said time period, he could not fulfil the condition. Hence, the Applicant moved another Application, seeking for further extension of 60 days time which was rejected, against which, an Appeal was preferred before the Hon ble NCLAT and the Hon ble NCLAT granted extension of 3 months during which period also, the Applicant could not pay the amount. Then, the Resolution Professional filed an IA, seeking fresh IRP which was allowed by this Tribunal again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 was assigned. The said Application was admitted on 25.02.2019, Corporate Insolvency Resolution Process (`CIRP ) was initiated and Moratorium under Section 14 of the Code was also imposed. 2. The Appellant (`M/s. Earthin Projects Ltd. ) submitted the Resolution Plan which was approved by the Committee of Creditors (`CoC ) and the Adjudicating Authority vide its Order dated 01.10.2021. At that time, the Moratorium which was imposed with the initiation of the CIRP dated 25.02.2019 was categorically ordered to have been ceased to have effect. The Appellant failed to fulfil the necessary conditions of the Resolution Plan, two weeks time was given to them and thereafter they filed one I.A. No.77/2022 on 02.02.2022 for further extension of 60 days time. 3. Pending this Application, a Meeting of the Lenders forming part of the Creditors, was held on 19.02.2022, in which they took various decisions regarding invocation of the Bank Guarantee, blacklisting of the Appellant and seeking 60 days more time for inviting fresh Expression of Interest (`EoI ). 4. Apropos, I.A. No.283/2022 was filed by the RP on 28.02.2022 for seeking 60 days extension for inviting EoI and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution Plans. 10. He has further argued that once the Moratorium was imposed on 25.02.2019 and lifted vide Order dated 01.10.2021 then it is required to be again imposed if it is to be lifted by virtue of the Order dated 05.07.2023 but the Order of imposition of Moratorium is conspicuous by its absence in any of the Order passed subsequent to 01.10.2021 much less in the Order which has been passed in I.A. No.283/2022 when the RP sought extension of time for inviting fresh EoI on the alleged failure of the Appellant for not complying with the Resolution Plan submitted by them which got the approval not only on the CoC but also of the Adjudicating Authority vide its Order dated 01.10.2021. It is submitted that if by virtue of the Order passed on 05.09.2022 in I.A. No.283/20222 fresh CIRP has been ordered to be initiated afresh, it was incumbent upon the Adjudicating Authority to have imposed the Moratorium as well otherwise there would be no importance of the Moratorium. 11. He has further argued that with the passing of the Order dated 01.10.2021 in their favour, a legitimate expectation vested with the Appellant for the purpose of getting the Plan as they had under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p the application with all reasonable dispatch preferably within a period of two weeks from the date when the application for modification of the order of stay or for vacating the stay is filed. 5 The appeal is, accordingly, disposed of. 6 Pending applications, if any, stand disposed of 13. Pursuant thereto, the Respondent No. 3 filed an application for vacation of stay bearing I.A. No. 1124 of 2023 in which notice was issued and ultimately the appeal itself was heard and judgment was reserved. 14. The resume of the afore-narrated facts is that the resolution plan submitted by the Appellant was approved on 01.10.2021 in I.A. No. 861 of 2020 but it ought to have been implemented within 90 days. The Appellant filed I.A. No. 77 of 2022 for extension of 60 days to implement the resolution plan which was dismissed on 01.02.2022. The order dated 01.02.2022 was challenged by the Appellant by way of appeal i.e. CA (AT) (Ins) No. 86 of 2022 which was disposed of by this Appellate Tribunal on 13.04.2022 providing the Appellant a further period of three months time for implementation of the resolution plan. Since, the resolution plan was not implemented by the Appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the application for impleadment, the Appellant could not bring all the facts to the notice of the Court. It is further submitted that the appeal at the instance of the Appellant has been filed as the Appellant is an aggrieved person, which is a sine qua non, for the purpose of invoking Section 61 of the Code. It is argued that the Appellant being the successful resolution applicant, paid Rs. 65 Crores towards the resolution plan which was approved by the order dated 01.10.2021 and the said plan was binding and irrevocable between the CoC and SRA. In this regard, reliance has been placed upon a decision of this Court rendered in the case of Kalinga Allied Industries India Pvt. Ltd. Vs. CoC, 2022 SCC Online NCLAT 1618. It is also argued that afresh CIRP has been ordered in violation of provision of the Code. It is further argued that the object of the Code is to maximize the value of the assets of the Corporate Debtor. The Respondent No. 3 has offered Rs. 401 Cr. vide in its plan whereas the Appellant had offered Rs. 612 Cr. and is ready to honour all the financial commitments within the time prescribed by the Court. It is also argued that the resolution plan of the Appellant prot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant (Appellant herein) to pay the residual balance amount in the designated account alongwith overdue interest has already expired. No payment has been made. The Hon ble Supreme Court has further directed that the Adjudicating Authority may proceed further with the matter in accordance with law. It is submitted that the conduct of the Appellant and its failure to pay the promised funds was noticed in the said order. It is argued that after dismissal of the aforesaid appeal, the RP filed I.A. No. 283 of 2022 for extension of time for completion of the CIRP proceedings which were revived after the failure of the previous resolution plan on account of failure of the Appellant to make the payment as per the order dated 01.10.2021. The order passed in I.A. No. 283 of 2022 on 05.09.2022 was challenged in appeal i.e. CA (AT) (Ins) No. 340 of 2022 before this Tribunal which was dismissed by a detailed order on 25.11.2022 and the issues raised herein have been decided against the Appellant against which the Appellant filed Civil Appeal No. 1133 of 2023 before the Hon ble Supreme Court which has been dismissed as withdrawn on 04.12.2023 without getting any permission to raise the contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illing to implement his failed resolution plan alongwith 8% interest, reference has been made to the order passed in CA (AT) (Ins) no. 340 of 2022 in which it has been held that there is no specific provision authorizing the Adjudicating Authority to consider extension of timelines for the purpose of extending the time for making payment. In the end, it is submitted that it has been held by the Hon ble Supreme Court repeatedly that commercial wisdom of the CoC is supreme and neither the Adjudicating Authority nor the Appellate Authority can trespass into the commercial wisdom of the CoC. The case of the Appellant came to an end with the non-compliance on their part in the implementation of the submitted resolution plan and thus, the Appellant has no locus standi to challenge the impugned order. 19. Counsel for the Respondent No. 3 has also submitted that since the Appellant has failed to implement the resolution plan within the extended time period afforded by the Tribunal, therefore, the Appellant is not a stakeholder within the ambit of Section 31(1) of the Code and has no locus standi to challenge the impugned order. He has also relied upon the decision of this Court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority to pass a fresh order declaring moratorium especially during the CIRP and the order of afresh CIRP was to continue the CIRP on account of failure of resolution plan submitted by the Appellant. It is further submitted that regarding the absence of the order for setting aside the order dated 01.10.2021 passed in I.A. No. 861 of 2020 is concerned, the Tribunal in its order dated 25.11.2022 has held that the Appellant cannot be given any further time to make payment rendering the order dated 01.10.2021 unimplementable and inexecutable. It is also submitted that that in CA No. 3660 of 2022, the Hon ble Supreme Court while dismissing the appeal filed by the Operational Creditor against the order dated 13.04.2022 has observed that the Appellant has exhausted all legal remedies in view of failure to comply with the extended timelines permitted vide order dated 13.04.2022. 20. In so far as the legality of the Joint Lenders Meeting which was conducted on 19.01.2022 is concerned, it is submitted that it preceded the filing of I.A. No. 283 of 2022 and the Appellant had also challenged the order passed in I.A. No. 283 of 2022 which has been dismissed vide order dated 25.11.2022 passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.2022 till 12.07.2022 but it was still not complied with and this fact has been noticed by the Hon ble Supreme Court in its order dated 29.08.2022 passed in Civil Appeal No. 3660 of 2022 in which the order dated 13.04.2022 was challenged by one operational creditor, M/s Vishal Nirmiti Pvt. Ltd.. In such circumstances, when the Appellant has miserably failed to implement the resolution plan, the RP filed I.A. No. 283 of 2022, praying therein for extension of period of CIRP of 60 days, which was allowed on 05.09.2022. In this order, the term used by the Adjudicating Authority was afresh CIRP whereas CIRP had already been initiated vide order dated 25.02.2019 when CP (IB) No. 372/7/HDB/2018, filed by Bank of India under Section 7 of the Code was admitted. Thus, in our considered opinion, the word afresh CIRP is the continuation of the CIRP. The Appellant had challenged the order dated 05.09.2022 by which afresh CIRP was ordered by way of CA (AT) (Ins) No. 340 of 2022 but the said appeal, by a detailed order was dismissed on 25.11.2022 and as a matter of fact, it has been observed that the Appellant has exhausted legal remedies on failure to comply with extended timelines. The ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch before the filing of this appeal, in the earlier litigation, which has also been closed against the Appellant when the appeal filed by the Appellant bearing CA (AT) (Ins) No. 340 of 2022 was dismissed by this Tribunal with a detailed order and the said order has now been upheld by the Hon ble Supreme Court in appeal bearing Civil Appeal No. 1133 of 2023 because the Appellant has withdrawn the appeal. We are also of the considered opinion that the Appellant is not a stakeholder within the ambit of Section 31(1) of the Code qua the Corporate Debtor after having been unsuccessful as a resolution applicant and has no locus standi to file the present appeal and in this regard, reliance has been placed upon the judgment rendered by this Tribunal in the case of Ravi Shankar Vedam vs. Tiffins Barytes Asbestos and Paints Limited and Others where it has been held that the Promoter / Shareholder of the Corporate Debtor Company has no locus to challenge the Plan, after its approval. The relevant Paragraphs of the NCLAT Judgement in Ravi Shakar Vedam , pertinent to the issue of locus of the Shareholder / Promoter in challenging the approval of the Plan are reproduced as hereunder: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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