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TMI Blog2024 (5) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... against same order dated 12.10.2023 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench, Court-VI by which order I.A. No.678/ND/2023 filed by the Resolution Professional for approval of the Resolution Plan submitted by ACAIPL Investment and Financial Services Private Limited has been approved. 2. Company Appeal (AT) (Ins.) No.72 of 2024 has been filed by Protima Arora claiming to be Ex-Director of the Corporate Debtor. Company Appeal (AT) (Ins.) No. 129 of 2024 is filed by Pooja Film Company, who claim to have filed its claim as Financial Creditor in the CIRP of the Corporate Debtor. Company Appeal (AT) (Ins.) No. 204 of 2024 is filed by Pooja Entertainment and Films Limited, who also claim to filed its claim as Financial Creditor. Aggrieved by the order approving the Resolution Plan, there Appeals have been filed. 3. We need to first notice the brief facts of the case giving rise to these appeals: Company Appeal (AT) (Ins.) No.72 of 2024 (i) An application was filed for initiation of CIRP against the Corporate Debtor on 19.07.2019. The application under Section 7 was filed by the Financial Creditor - Easy Trip Planners Limited claiming defaul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hepal, learned counsel has appeared for the Appellant in Company Appeal (AT) (Ins.) No.129 of 2024 and 204 of 2024. Shri Kunal Godhwani, learned counsel has appeared for the Resolution Professional. 5. Shri Amar Dave, learned senior counsel for the Appellant submits that the Corporate Debtor having been struck off by the Registrar of Companies, Delhi on 29.10.2019, the Corporate Debtor was no more in existence, hence, the whole exercise of approval of Resolution Plan of Corporate Debtor culminating into order dated 12.10.2023 is without jurisdiction and deserves to be set aside on this ground alone. It is submitted that the Appellant was Director of the Corporate Debtor from 18.07.2015 till it was struck off on 29.10.2019. It is submitted that no proceeding has been undertaken for revival of the Corporate Debtor, hence, Resolution Plan ought not to have been approved. Learned counsel further submitted that after Film Investment Agreement dated 23.02.2018 entered between the Corporate Debtor and the Financial Creditor, there has been Settlement Agreement dated 18.06.2018 between the Financial Creditor, Corporate Debtor and Respondent No.3 herein i.e. Super Cassettes Industries Priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany Appeal (AT) (Ins.) No. 204 of 2024 as well as Company Appeal (AT) (Ins.) No.129 of 2024 submitted that Appellants has also entered into Memorandum of Agreement with the Corporate Debtor under which the Appellants, Pooja Film Company and Pooja Entertainment and Films Ltd. have extended several financial benefits. It is submitted that the claim in Form C was filed on 10.04.2023 by Pooja Film Company as well as by Pooja Entertainment and Films Ltd. which were never admitted. 8. Learned counsel for the Resolution Professional opposed the submission of learned counsel for the Appellants in Company Appeal (AT) (Ins.) No. 204 of 2024 and Company Appeal (AT) (Ins.) No.129 of 2024. It is submitted that the claims filed by Pooja Film Company and by Pooja Entertainment and Films Ltd. were never admitted as they had filed the claim much after approval of the Resolution Plan by the Committee of Creditors on 04.11.2022. Hence, the claim has rightly not been accepted. It is submitted that Pooja Entertainment & Films Ltd. has also filed an application being I.A. No.4047 of 2023 seeking direction for admitting claim, which application was rejected by order dated 16.08.2023, which order has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of companies. (7) The liability, if any, of every director, manager or other officer who was exercising any power of management, and of every member of the company dissolved under sub-section (5), shall continue and may be enforced as if the company had not been dissolved." 12. We have noticed the submission made by learned counsel for the Resolution Professional that the Resolution Professional has taken steps after approval of Resolution Plan as Chairman of the Monitoring Committee by filing necessary application and necessary form, in consequence to which the company has been now shown as 'Active' in the MCA records. An Additional Affidavit dated 08.04.2024 has been filed by the Resolution Professional. In Para 12.1, 13, 14, 15, 16.1 and 17.1 following has been stated: "12.1 say that on 18.01.2024, Respondent No. 1 in its capacity as chairperson of the Monitoring Committee which was formed for implementation of the Resolution Plan, issued a letter to the Registrar of Companies requesting for the restoration of the name of the Corporate Debtor in pursuance to the approval of the Resolution Plan approved vide order dated 12.10.2023. Copy of Letter dated 18.01.2024 is annexe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruck off and the company being non-existent, application under Section 7 need to be rejected was repelled by the Adjudicating Authority which order has become final. In any view of the matter, the company has been revived. The liabilities of the company cannot be simply washed out by action of company of non-compliance of the provisions of Companies Act, non-filing of the relevant financial documents and other filings. If the submission is accepted of the Appellant that proceeding could not have been proceeded, the easiest thing for a company would be to get struck off to wash of its all liabilities, which submission cannot be accepted. In any view of the matter, the company being now revived and active, we are not satisfied with the submission of the Appellant that on this ground approval of Resolution Plan be set aside. A perusal of the ROC record indicates that last Balance Sheet was filed by the Company on 21.03.2016 and it appears that due to reason of non-filing of relevant balance sheet and other records, the company was struck off. 14. Now we may notice the submission of the Appellant that under the Settlement letter dated 18.06.2018 and Tripartite Agreement dated 21.06.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Easy Trip Planners Pvt Ltd Protima Arora Nishant Pitti Agreed & accepted in toto Witness: For Super Cassettes Industries Pvt Ltd Bhushan Kumar Prerna Arora Aadhar Card No:" 15. The agreement dated 21.06.2018 signed by all the three parties is as follows: "Date: 21.06.2018 TO WHOMSOEVER IT MAY CONCERN On the basis of the settlement that has been arrived by and in between the Parties e., Super Cassettes Industries Private Limited, Kriarj Entertainment Private Limited and Easy Trip Planners Private Limited. The Parties have decided and agreed to withdraw all complaints, suits, appeals and or any other proceedings pursing before any authorities including but not limited to the following proceedings pending adjudication before the Hon'ble Delhi High Court: a. CS (Comm.) No. 919 of 2018, titled as Easy Trip Planners Private Limited Vs Super Cassettes Industries Private Limited & Anr. b. CS (Comm.) No. 919 of 2018, titled as Easy Trip Planners Private Limited Vs Super Cassettes Industries Private Limited & Anr. c. FAO (OS) (Comm.) No. 122 of 2018, titled as Kriarj Entertainment Private Limited Vs Super Cassettes Industries Private Limited. Further, the Parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nullified all the understanding in writing within four days from the said settlement. Thus, we are of the view that liability of the Corporate Debtor to discharge its financial debt continues. More so, admission of Section 7 application on the basis of debt and default has become final and in the proceeding regarding plan approval it is not open for the Ex-Director of the Corporate Debtor to contend that there is no debt owed by the Corporate Debtor. We, thus are of the view that submission of the Appellant that debt is to be paid by Super Cassettes Industries Private Limited is fallacious and cannot be accepted. No other grounds have been pressed against order dated 12.10.2023 approving the Resolution Plan. It is well settled that approval of Resolution Plan can be interfered by the Adjudicating Authority or this Tribunal only on very limited grounds. The commercial wisdom of the Committee of Creditors in approving the Resolution Plan has been given paramount status. We may refer to the judgment of Hon'ble Supreme Court in K. Sashidhar vs. Indian Overseas Bank and Ors. - (2019) 12 SCC 150. In para 59 following has been held: "59. In our view, neither the adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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