9911796707
TMI Blog2024 (10) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2021 in CP (IB) No. 185 (AHM) of 2018. It has been brought out that the Appellant is the statutory body of the Government of Gujarat functioning under the provisions of the Gujarat Stamp Act, 1958. 2.Heard the Counsel for the Parties and perused the records made available including the cited judgements. 3.It is the claim of the Appellant that the Appellant had filed the claims of Rs. 15,38,79,179/- being in nature of Stamp Duty and Penalty, however only Rs. 2,65,00,000/- has been provided in the Resolution Plan under the caption "Land Payments and Stamps Duty" and did not consider remaining outstanding amount of stamp duty and fees. 4.Mr. Avil Menezes is the Resolution Professional of the Corporate Debtor and the Respondent herein. 5.It is the case of the Appellant that he submitted the claims of Rs. 15,38,79,179/- based on the order dated 29.08.2012 passed by the Hon'ble Gujarat High Court in Company Petition No. 133 of 2012 regarding demerger of the relevant companies. 6.The Appellant pointed out that the Stamp Duty accrued as a result of demerger of Asia Motors Works Ltd. being transferor company and AMW Motors Ltd. being the transferee No. 1 company and AMW Autocomponent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Gujarat High Court and the Hon'ble High Court granted interim relief on 12.09.2013 and subsequently this application was withdrawn on 27.01.2020. 13.The Corporate Debtor subsequently approached the Chief Controlling Revenue Authority under Section 53(1) of the Gujarat Stamp Act, 1958 challenging the opinion of the Collector dated 29.07.2013 which was rejected by Chief Controlling Revenue Authority on 20.04.2020 on the ground of limitation. 14.It has been brought out that Indian Overseas Bank as Financial Creditor of the Corporate Debtor initiated the application filed under Section 7 of the Code being CP (IB) No. 185 of 2018 and the same was admitted and CIRP of the Corporate Debtor initiated and Interim Resolution Professional (in short 'IRP') was appointed vide order dated 01.09.2020. 15.Subsequent, to the CIRP initiation, the IRP issued a public notice inviting the claims on 03.09.2020. 16.The Appellant submitted that the Appellant in exercise of powers under Section 39(1)(b) r/w Section 33 of the Gujarat Stamp Act, 1958 issued notice dated 22.01.2021 for recovering of the stamp amount along with penalty and for initiating proceedings for impounding the documents in ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices Ltd. on 08.05.2014 and it was agreed by concerned parties to execute related documents, i.e., registration was supposed to be done on finalization of stamp duty payable. Hence, the Corporate Debtor cannot avoid making the payment of the stamp duty. 25.The Appellant reiterated that without stamp duty payment, the Corporate debtor cannot transfer its property as valid document to the Resolution Applicant and submitted that claims of the Appellant are covered under Section 3(4) of the Code. The Appellant further submitted that charge was created for the properties of the Corporate Debtor in the revenue books on 10.05.2022, they same will fall in the purview of the term 'charge' of Section 3(4) of the Code. 26.The Appellant emphasised that in view of the judgement passed by Hon'ble Supreme Court of India in the matter of State Tax Officer Vs. Rainbow Papers Limited [(2022) SCC OnLine SC 1162], government dues would fall within the terms of Secured Creditors in Section 3(30) and Section 3(31) of the Code. 27.At this stage, we will look into the relevant section of the Code referred by the Appellant, which reads as under :- "3. Definitions. - (30)"secured creditor" means a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Resolution Plan by the Committee of Creditors (in short 'CoC'). 34.The Respondent further submitted that the issue of Stamp Duty payable to the Appellant was considered while approving the Resolution Plan by the Adjudicating Authority based on the relevant law and sections of the Code, Impugned Order was correctly passed. 35.The Respondent submitted that the claim was filed by the Appellant after inordinate delay of 30 months from the public announcement and 25 months from the claims of the Appellant that the Appellant came to know initiation of CIRP when the Respondent wrote to him on 17.02.2021. The Respondent stated that time is essence in the IBC and such belated claims could not have been considered. 36.The Respondent assailed the conduct of the Appellant who filed an IA No.1092 of 2023 in CP (IB) 185 of 2018 much late on 27.09.2023 before the Adjudicating Authority challenging the Resolution Plan, thus there was a delay of almost more than one year and four months even in filing I.A. before the Adjudicating Authority. 37.It is the case of the Responded that the Resolution Plan was approved by the Adjudicating Authority on 12.10.2023 and the approved Resolution Plan p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of the Respondent that inspite of such conduct, of the Appellant, the contingent liability owed towards the Appellant was always adequately disclosed in the financial statements of the Corporate Debtor by the Respondent and was provided even to the prospective Resolution Applicants in the CIRP Process. 42.The Respondent brought out that the Resolution Plan submitted by the Successful Resolution Applicant has given due consideration to the payments owed to the stamp authorities i.e., the Appellant and dealt with Stamp Duty Payments in Clause 1.1 of Resolution Plan. 43.We note Clause 1.1 of the Resolution Plan which reads as under :- PART II- THE TERMS OF THE RESOLUTION PLAN 1.DEFINITIONS AND INTERPRETATION 1.1Unless otherwise defined in this Resolution Plan, the following capitalized terms shall have the following meanings, unless repugnant to the subject, matter or context thereof ; Definition/ Abbreviations Meaning Stamp Duty Payments shall mean and include all payments to be paid to the stamp authorities or Governmental Authorities in respect of the Corporate Debtor Lands, including: (a)Amount of Rs. 5,53,64,009/- (Rupees five crore fifty- three, lakhs sixty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. 50.We observe that the time is essence for resolution of the Corporate Debtor and if any plan is saddled with huge delays of more than 30 months as in present case, we are afraid that the resolution of the Corporate Debtor will never take off. 51.We have noted from the pleadings of the Appellant that he was informed for the first time by the Respondent on 17.02.2021 whereas which was much delayed after the public announcement on 03.09.2020. One query was raised by this Appellate Tribunal to the Appellant that even for argument's sake the Appellant came to know only on 17.02.2021 why did the Appellant file the claim only on 23.03.2023 i.e., after more than 2 years and not immediately after 17.02.2021, the Appellant could not response properly on this pointed query. Thus, we note that there was no plausible reason for the Appellant to explain his conduct of filing such belated claims after 30 months of the public notice. 52.We observe that the demerger claim was approved by Hon'ble Gujarat High Court way back in 2012 and accordingly stamp duty was concluded. We also note that the Corporate Debtor sought an opinion from the relevant stamp duty authority who gave the opinion on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution Applicant, in respect of any payments (including the Stamp Duty Payments), defaults or arrangements made under the AMWL Demerger Scheme or any contracts, memorandums of understanding, documents or any agreements pertaining to the AACL Lands and Corporate Debtor Lands. (zz) On and from the NCLT Approval Date, as an integral part of implementation of the Resolution Plan, the AACL Lands shall be transferred to the Corporate Debtor to give effect of the AMWL Demerger Scheme, and the Governmental Authorities shall fully cooperate with the Resolution Applicant/Corporate Debtor for the same. No penalties, levies, fees, non-compliances for delayed filing and registration of the same (including Stamp Duty Payments) shall be levied by the Governmental Authorities and if any such amounts are levied/claimed, the same shall stand waived and extinguished in perpetuity. The Corporate Debtor shall make necessary applications to give effect to the same, if required." (Emphasis Supplied) 55.From above it is clear that issue of the stamp duty was indeed provided in the Resolution Plan in the ambit of the Code and the same was considered by the CoC exercising their commercial wisdom and fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adesh (Supra) is also pronounced on its own facts and not applicable in the present appeal. 60.We also note that the Resolution Plan was approved by the Adjudicating Authority by vide Impugned order dated 12.10.2023 and it is seen that the total claims which was filed were of Rs. 1695.85 Crores and the claim of Rs. 1672.08 Crores were admitted. We also note that the CoC with requisite voting rights approved the Resolution Plan and thereafter the Respondent filed an I.A. No. 692 (AHM) 2021 in CP (IB) 185 of 2018 for Plan approved by the Adjudicating Authority. Thereafter the Adjudicating Authority approved the Resolution Plan of M/s Steel Strips Wheels Limited who propose to infuse Rs. 138.15 Crores. Obviously, the intended hair cut is being taken by all the Stakeholders including the Secured Financial Creditors, Operational Creditor and the Government dues. Therefore, the Appellant's challenge on account of non-payment of full dues is not convincing. 61.We also note that in para 7 of the Impugned Order, the Adjudicating Authority had discussed the issue regarding claims of the Stamp Authority. This reads as under :- "7. It is further noted that an affidavit as regards to the el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contingent liability to the perspective Resolution Applicants through financial statement that the Respondent is seeking a waiver of Stamp Duty Payments through the provisions of its Resolution Plan. The Respondent explained that though he sought exemption time the stamp duty however it was not a condition precedent for the implementation of the Resolution Plan and made clear that the denial of waiver by the Adjudicating Authority would only result in that the Stamp Duty Payments to be made by the SRA in accordance to the Resolution Plan. 64.We also note that in catena of Judgment of Hon'ble Supreme Court of India has held that SRA cannot be burdened with related undisputed claims after the Resolution Plan submitted by him has been approved by the CoC. Two of such judgment so the Hon'ble Supreme Court of India are as under :- 65.We take note that the Hon'ble Supreme Court of India in CoC of Essar Steel India Limited (Supra), held that: "...A successful resolution applicant cannot suddenly be faced with "undecided" claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head pop ping up which would throw into uncertainty amounts pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
