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TMI Blog2024 (12) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that by order dated 5th March 2020, the National Company Law Tribunal ("NCLT"), Mumbai Bench, has approved the Resolution Plan under Section 31 (1) of the Insolvency and Bankruptcy Code, 2016 ("IBC") since the Applicant / Decree holder is defined as a Creditor under Section 3 (10) of the IBC as a separate class of creditor different from a financial creditor or an operational creditor or a secured creditor and even an unsecured creditor, the Execution Application cannot be said to be infructuous. Mr. Sen draws this Court's attention to the definition of Creditor in Section 3 (10) of the IBC in support of his contention. Mr. Sen relies upon the decision of the Tripura High Court in the case of Sri Subhankar Bhowmik vs. Union of India and Another WP(C)(PIL)No.04/2022 decided on 14th March 2022. 4. Mr. Sen, learned Senior Counsel, further submits that, therefore, although the decision in the case of Ghanshyam Mishra and Sons Private Limited, Through the Authorised Signatory vs. Edelweiss Asset Reconstruction Company Limited, Through the Director and Others (2021) 9 Supreme Court Cases 657 lays down that once a Resolution Plan is duly approved by the Adjudicating Authority under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it that paragraph 27 of the order of the NCLT clearly provides that operational creditors would get NIL payment as per the Resolution Plan. Mr. Cama submits that the Execution Applicant had lodged its claim in Form B with the Resolution Professional as an operational creditor and the operational creditors other than MMB and workmen have got NIL payment as per the payment plan. 8. Mr. Cama also relies upon paragraphs 93, 95, 97, 102.1 and 102.3 of the decision in the case of Ghanshyam Mishra and Sons Private Limited, Through the Authorised Signatory vs. Edelweiss Asset Reconstruction Company Limited, Through the Director and Others (supra) in support of his contention. Learned Counsel submits that the said decision of the Hon'ble Supreme Court, while clearly recognizing a Decree holder as a creditor, holds that an operational creditor is a person to whom an operational debt is owed. Learned Counsel submits that in paragraph 97 of the said decision, operational debt has been defined to mean a claim in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and in the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the date on which the Adjudicating Authority grants its approval under Section 31 can be continued. Neither of the two Counsel have disputed this position of law. 14. The decree is dated 17th December 2012. The order of the NCLT approving the Resolution Plan is of 5th March 2020. Paragraph 27 of the said order is usefully quoted as under : "27. As per the terms of the Approved Resolution Plan, the payment schedule along with the amount to be paid to different categories of stakeholders is as follows : Stakeholder Admitted claim Payment as per plan Timing of payment Financial Creditors INR 3,056.96 Crores INR 650 Crores Within 30 days of effective date (i.e approval of plan by AA and satisfaction of the conditions precedent) Operational Creditors (other than workmen and employees and MMB) INR 26.36 Crore (Excluding MMB) Nil - Operational Creditors (MMB) INR 15.10 Crores INR 11.38 Crores Within 30 days of effective date Operational Creditors (Workmen and employee dues) INR 0.02 Crores As per provisions of IBC (as amended) As per provisions of IBC (as amended) CIRP Cost NA To be paid in full In priority to other payments 15. It is clear f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the NCLAT has not been challenged any further by the Applicant. The Resolution Plan is, therefore, final, so also once the Resolution Plan has attained finality, in view of the decision of the Hon'ble Supreme Court in the case of Ghanshyam Mishra and Sons Private Limited, Through the Authorised Signatory vs. Edelweiss Asset Reconstruction Company Limited, Through the Director and Others (supra), claims not part of the Resolution Plan stand extinguished and all proceedings with respect to the claims or dues can neither be initiated nor be continued. This Execution Application is one such proceeding. 18. It is pertinent here to refer to paragraph 97 of the decision in the case of Ghanshyam Mishra and Sons Private Limited, Through the Authorised Signatory vs. Edelweiss Asset Reconstruction Company Limited, Through the Director and Others (supra) which is usefully quoted as under : "97. "Creditor" therefore has been defined to mean "any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree-holder". "Operational Creditor" has been defined to mean a person to whom an operational debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be an operational creditor. Therefore, even if the claim by the Applicant had been made in Form "F" and not in Form "B" the fact is that the same is an operational debt and the Applicant was an operational creditor and to my mind would not make any difference in the facts of this case, in view of the principles laid down by the Hon'ble Supreme Court in the case of Ghanshyam Mishra and Sons Private Limited, Through the Authorised Signatory vs. Edelweiss Asset Reconstruction Company Limited, Through the Director and Others (supra), although the said approach in that case was in the facts of that case in respect of government or statutory dues. 23. It would also, therefore, not be necessary, in my view, for an operational creditor of the nature of an Applicant, to be shown separately as a Decree holder or dealt with any differently although a Decree holder undisputedly is a separate class of creditor. 24. Further, in my view, paragraphs 44, 45 and 46 of the order approving the Resolution Plan cannot therefore come in the way of the finality of the Resolution Plan. And even while it cannot be denied that merely because the Resolution Plan has been approved, it does not conf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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