important questions as to the role of resolution applicants, resolution professionals, the Committee of Creditors that are constituted under the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “the Code”), and the jurisdiction of the National Company Law Tribunal (hereinafter referred to as “NCLT”/“Adjudicating Authority”) and the National Company Law 2 Appellate Tribunal (hereinafter referred to as “NCLAT”/“Appellate Tribunal”), qua resolution plans that have been approved by the Committee of Creditors. The constitutional validity of Sections 4 and 6 of the Insolvency and Bankruptcy Code (Amendment) Act, 2019 (hereinafter referred to as the “Amending Act of 2019”) have also been challenged.=

important questions 
as to the role of resolution applicants, resolution professionals, the Committee of Creditors that are constituted under the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “the Code”), and
the jurisdiction of the National Company Law Tribunal (hereinafter referred to as “NCLT”/“Adjudicating Authority”) and the National Company Law 2 Appellate Tribunal (hereinafter referred to as “NCLAT”/“Appellate Tribunal”), qua resolution plans that have been approved by the Committee of Creditors. 

The constitutional validity of Sections 4 and 6 of the Insolvency and Bankruptcy Code (Amendment) Act, 2019 (hereinafter referred to as the “Amending Act of 2019”) have also been challenged.=



REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL/APPELLATE JURISDICTION
CIVIL APPEAL NO. 8766-67 OF 2019
 DIARY NO.24417 OF 2019
Committee of Creditors of Essar Steel India Limited
Through Authorised Signatory ...Appellant
Versus
Satish Kumar Gupta & Ors. ...Respondents
WITH
CIVIL APPEAL NOS.5634-5635 OF 2019
CIVIL APPEAL NOS.5636-5637 OF 2019
CIVIL APPEAL NOS.5716-5719 OF 2019
CIVIL APPEAL NO.5996 OF 2019
CIVIL APPEAL NO.6266 OF 2019
CIVIL APPEAL NO.6269 OF 2019
WRIT PETITION (CIVIL) NO.1055 OF 2019
WRIT PETITION (CIVIL) NO.1064 OF 2019
WRIT PETITION (CIVIL) NO.1049 OF 2019
WRIT PETITION (CIVIL) NO.1050 OF 2019
WRIT PETITION (CIVIL) NO.1057 OF 2019
WRIT PETITION (CIVIL) NO.1058 OF 2019
WRIT PETITION (CIVIL) NO.1061 OF 2019
WRIT PETITION (CIVIL) NO.1060 OF 2019
WRIT PETITION (CIVIL) NO.1056 OF 2019
CIVIL APPEAL NO.6409 OF 2019
WRIT PETITION (CIVIL) NO.1063 OF 2019
CIVIL APPEAL NOS.6433-6434 OF 2019
WRIT PETITION (CIVIL) NO.1066 OF 2019
1
WRIT PETITION (CIVIL) NO.1087 OF 2019
WRIT PETITION (CIVIL) NO.1110 OF 2019
WRIT PETITION (CIVIL) NO.1113 OF 2019
WRIT PETITION (CIVIL) NO.1121 OF 2019
CIVIL APPEAL NO._8768_OF 2019
DIARY NO.31409 OF 2019
CIVIL APPEAL NO.7266 OF 2019
CIVIL APPEAL NO.7260 OF 2019
WRIT PETITION (CIVIL) NO.1246 OF 2019
CIVIL APPEAL NO._8769_OF 2019
DIARY NO.36838 OF 2019
WRIT PETITION (CIVIL) NO.1296 OF 2019
J U D G M E N T
R.F. Nariman, J.
Delay Condoned in Civil Appeal Diary No. 31409 of 2019 and
Civil Appeal Diary No. 36838 of 2019. I.A. No. 102638 of 2019 in Civil
Appeal Diary No. 24417 of 2019 for Permission to File Appeal
allowed. Appeal Admitted.
1. This group of appeals and writ petitions raises important
questions as to the role of resolution applicants, resolution
professionals, the Committee of Creditors that are constituted under
the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as
“the Code”), and last, but by no means the least, the jurisdiction of the
National Company Law Tribunal (hereinafter referred to as
“NCLT”/“Adjudicating Authority”) and the National Company Law
2
Appellate Tribunal (hereinafter referred to as “NCLAT”/“Appellate
Tribunal”), qua resolution plans that have been approved by the
Committee of Creditors. The constitutional validity of Sections 4 and 6
of the Insolvency and Bankruptcy Code (Amendment) Act, 2019
(hereinafter referred to as the “Amending Act of 2019”) have also
been challenged. These appeals and writ petitions are an aftermath
of this Court’s judgment dated 04.10.2018, reported as ArcelorMittal
India Private Limited v. Satish Kumar Gupta (2019) 2 SCC 1.
2. On 02.08.2017, the NCLT, Ahmedabad admitted Company
Petition (I.B.) No. 39 of 2017 filed by Standard Chartered Bank
together with a Petition filed by the State Bank of India under Section
7 of the Code. One Satish Kumar Gupta was appointed as the interim
resolution professional, who was later confirmed as resolution
professional. On 06.10.2017, the resolution professional by way of an
advertisement in the Economic Times, invited expressions of interest
from all interested resolution applicants to present resolution plans for
rehabilitating the corporate debtor, namely, Essar Steel India Limited.
On 24.12.2017, the resolution professional issued a request for
proposal (hereinafter referred to as “RFP”), inter alia, inviting
resolution plans for the aforesaid corporate debtor, which was later
amended on 08.02.2018. Two resolution plans were submitted on
3
12.02.2018, one by ArcelorMittal India Private Limited (hereinafter
referred to as “ArcelorMittal”) and another by Numetal Limited
(hereinafter referred to as “Numetal”) both of which were found to be
ineligible under Section 29-A of the Code. On 02.04.2018, resolution
plans were then submitted by ArcelorMittal, Numetal and one
Vedanta Limited (hereinafter referred to as “Vedanta”). The resolution
plan of ArcelorMittal specifically provided for an upfront payment of
INR 35,000 crores in order to resolve debts amounting to INR 49,213
crores. It was stated that unsecured financial creditors shall be paid
an aggregate amount of 5% of their admitted claims. Apart from the
above, INR 8,000 crores of fresh capital infusion by way of capex and
working capital was also to be infused. INR 3,339 crores - being the
aggregate admitted claims of operational creditors, other than
workmen and employees, was to be paid to the extent of INR 196
crores, but only to trade creditors and government creditors. Small
trade creditors, defined as “having claims of less than one crore”
were to be honoured in full, as was the claim of workmen and
employees of the corporate debtor, amounting to INR 18 crores.
Importantly, the resolution applicant empowered the Committee of
Creditors to decide the manner in which the financial package being
offered would be distributed among the secured financial creditors.
Standard Chartered Bank, which was stated to be an unsecured
4
creditor, was to be paid an aggregate amount of 5% of its admitted
claims. On 19.04.2018, the Adjudicating Authority directed the
Committee of Creditors of the corporate debtor, which by then had
been set up by the interim resolution professional, to consider the
eligibility of the aforesaid resolution applicants.
3. On 10.09.2018, Standard Chartered Bank was classified as a
secured financial creditor of the corporate debtor by the resolution
professional. On 04.10.2018, this Court declared both ArcelorMittal
and Numetal ineligible by virtue of their resolution plans being hit by
Section 29-A of the Code. However, an order was passed under
Article 142 of the Constitution, stating that one more opportunity be
granted to both ArcelorMittal and Numetal to pay off the NPAs of their
related corporate debtors within two weeks of the Supreme Court
judgment, failing which the corporate debtor would go into liquidation.
On 18.10.2018, ArcelorMittal informed the resolution professional and
the Committee of Creditors that it had made payments as per the
Supreme Court’s judgment dated 04.10.2018. However, Numetal did
not make any such payment. As a result, on 19.10.2018, ArcelorMittal
resubmitted its resolution plan of 02.04.2018, which was then
evaluated by the Committee of Creditors on the same date -
ArcelorMittal being declared as the highest evaluated resolution
5
applicant vis-a-vis Vedanta. On 25.10.2018, the final negotiated
resolution plan of ArcelorMittal was approved by the Committee of
Creditors by a 92.24% majority. After several proceedings before the
NCLT and the NCLAT, the NCLT, by its judgment dated 08.03.2019
disposed of the application to allow the resolution plan filed by
ArcelorMittal as follows:
“…we are of the view that the dues of the operational
creditors must get at least similar treatment as
compared to the dues of the financial creditors on the
principle of equity and fair play as well as the
Wednesbury Principle of Unreasonableness and the
Doctrine of Proportionality, so as to avoid disparity in
making payments to the operational creditors having
debt value of Rs.1 crore and above (a token of Re.1)
and the allegation of discriminatory practice could be
ruled out…Hence, in our view, if a reasonable formula
for apportionment is worked out so that 85% of the
amount offered by the resolution applicant is distributed
among the financial creditors and the remaining 15% of
the amount is distributed amongst the rest of the
operational creditors, then the entire claim of the
operational creditors, which comes to around Rs.4700
crore can be substantially paid off or at least the
operational creditors can get 50% of their admitted and
undisputed claim in the light of the judgment of the
Hon’ble Supreme Court in Chitra Sharma v. Union of
India (supra). Such object can be achieved, if the
financial creditor and the members of the CoC are willing
to sacrifice the interest component on their principal
loan, because it is established position in the record that
the principal loan liability of the corporate debtor
company comes to around Rs.35,000 crore in the year
2017 when these IB Petitions were admitted, which
includes the interest component also and by giving such
hair-cut to the interest component to the extent possible
by providing provision for 15% amount for the other
operational creditors and stakeholders, we are of the
6
view that debts of the entire operational creditors can be
satisfied in a reasonable and fair manner and then such
I.A.s preferred by the operational creditors would also
become infructuous and this Adjudicating Authority
would not be required to deal with the merits of each and
every I.A. Thus, this would be beneficial to avoid
multiplicity of legal proceedings and to remove any
impediment for effective implementation of the resolution
plan and to achieve the main theme and object of the
present I & B Code.”
4. By an interim order dated 20.03.2019 in the appeals that were
filed before NCLAT, the NCLAT directed the Committee of Creditors
to take a decision on certain suggestions that were made. Pursuant
to this, on 27.03.2019 the Committee of Creditors decided - voting
having concluded on 30.03.2019 - to appeal against the NCLAT’s
order, and, by a majority of 70.73% approved making an ex gratia
payment of INR 1,000 crores to operational creditors above INR 1
crore. Appeals filed against the interlocutory orders of the NCLAT
were then heard by this Court, which by its order dated 12.04.2019,
inter alia, directed non-implementation of the judgment dated
08.03.2019 of the NCLT and expeditious disposal of the appeal
before the NCLAT.
5. By its final judgment dated 04.07.2019, the NCLAT held that:
(i) In a resolution plan there can be no difference between a
financial creditor and an operational creditor in the matter of payment
of dues, and that therefore, financial creditors and operational
7
creditors deserve equal treatment under a resolution plan.
Accordingly, the NCLAT has re-distributed the proceeds payable
under the approved resolution plan as per the method of calculation
adopted by it so that all financial creditors and operational creditors
be paid 60.7% of their admitted claims;
(ii) Securities and security interest is irrelevant at the stage of
resolution for the purposes of allocation of payments, thereby
directing that each financial creditor (whether secured or unsecured)
with a claim equal to or more than INR 10 lakhs be paid 60.7% of its
admitted claim irrespective of their security interest;
(iii) Operational creditors by definition have separate classes within
themselves and can be classified into sub-classes for the purpose of
distribution (while rejecting any classification amongst the financial
creditors) on the basis of the admitted amounts thereby directing that
operational creditors with a claim of equal to or more than INR 1 crore
be paid 60.268% of their admitted claims.
(iv) Certain additional claims of operational creditors (some of
which were highly belated and/or without sufficient proof) were
admitted, such that the admitted operational debt of approximately
INR 5,058 crores at the time of the approval of the approved
8
resolution plan became an operational debt of approximately INR
19,719.20 crores.
(v) The profits generated by the corporate debtor during the
Corporate Insolvency Resolution Process (hereinafter referred to as
the “CIRP”) would be distributed equally amongst the financial
creditors and operational creditors of the corporate debtor.
(vi) A sub-committee or core committee cannot be constituted
under the Code, being a foreigner thereto. The Committee of
Creditors alone are to take all decisions by themselves.
(vii) The Committee of Creditors has not been empowered to decide
the manner in which the distribution is to be made between one or
other creditors, as there would be a conflict of interest between
financial and operational creditors, financial creditors favouring
themselves to the detriment of operational creditors.
(viii) Section 53 of the Code cannot be applied during the corporate
resolution process but will apply only at the stage of liquidation.
 (ix) Claims that have been decided by the resolution professional
and affirmed by the Adjudicating Authority or the Appellate Tribunal
are final and binding on all creditors. However, claims which have not
been decided by the Adjudicating Authority or the Appellate Tribunal
9
on merits may be decided by an appropriate forum in terms of
Section 60(6) of the Code.
(x) Financial Creditors in whose favour guarantees were executed,
as their total claim stands satisfied to the extent of the guarantee,
cannot re-agitate such claims as against the principal borrower.
6. We have heard detailed arguments made by Shri Gopal
Subramanium and Shri Rakesh Dwivedi, learned senior counsel, on
behalf of the Committee of Creditors of Essar Steel India Limited.
They have argued that the provisions of the Code provide for a broad
classification of creditors as financial creditors and operational
creditors on the basis of the nature of the transaction between
creditors and a corporate debtor. They have further argued that the
Code does not mandate identical treatment of differently situated
creditors either inter se within financial creditors, who may be secured
or unsecured, and/or financial creditors vis-a-vis operational creditors.
The Code only posits equitable treatment of different classes of
creditors recognising that different classes deserve differential
treatment. According to them, financial creditors as a class have a
superior status as against operational creditors, the same being the
case with secured creditors vis-a-vis unsecured creditors. For this
purpose, they relied upon certain provisions of the Code. They further
10
argued that the general law of the land as contained in Section 48 of
the Transfer of the Property Act, 1882 and Section 77 of the
Companies Act, 2013 would not have been taken away sub-silentio
by the Code and have relied upon a large number of authorities for
this purpose. They also referred to and relied upon the UNCITRAL
Legislative Guide on Insolvency Law (hereinafter referred to as the
“UNCITRAL Legislative Guide”), which was referred to by this Court
in Swiss Ribbons Private Limited v. Union of India (2019) 4 SCC
17, and upon a report by the International Monetary Fund titled
“Orderly and Effective Insolvency Procedures – Key Issues”. They
also referred to and relied upon judgments under Article 14 of the
Constitution of India which highlight the fact that classification is
permissible so as to differentiate persons who are unequal, who
cannot then be treated equally. They also argued, relying strongly
upon the IMF paper on “Development of Standards for Security
Interest” by Pascale De Boeck and Thomas Laryea, in addition to
several expert reports, that classification of creditors based on the
nature of the debt and/or security interest is a sine qua non for any
Insolvency Code. They argued that if secured financial creditors are
to be treated at par with unsecured creditors, such secured creditors
would rather vote for liquidation rather than Corporate Resolution,
contrary to the main objective sought to be achieved by the Code.
11
They then argued that the health of the financial sector is critical for
the overall health and growth of the economy, which would otherwise
be subverted, if the impugned judgment were to be given effect. They
relied strongly upon paragraphs 27 and 28 of Swiss Ribbons
(supra), in particular, which differentiated between secured and
unsecured creditors, most financial creditors being secured creditors
and most operational creditors being unsecured. They also argued
that the law laid down in K. Sashidhar v. Indian Overseas Bank
2019 SCCOnline SC 257, had made it clear that there is a judicial
hands-off when it comes to the commercial wisdom of the Committee
of Creditors, which has been directly infracted by the impugned
judgment, which has held that the Committee of Creditors has
nothing to do with the distribution of amounts which are infused by
the resolution applicant for payment of the corporate debtor’s
erstwhile debts. They relied heavily upon the Bankruptcy Law
Reforms Committee Report, 2015 (hereinafter referred to as the
“BLRC Report”) to buttress this submission, as well as the UNCITRAL
Legislative Guide. They then submitted that a resolution plan is a
consent-based plan proposed by the resolution applicant for a
corporate debtor. The counterparty to such a plan is the Committee of
Creditors, which is required to give a minimum consent of 66% voting
share, which consent then becomes the basis for the Adjudicating
12
Authority to approve a resolution plan for the corporate debtor. Once
approved by the Adjudicating Authority, such plan becomes binding
on all stakeholders as is mentioned by Section 31 of the Code.
Therefore, any modification, as has been done by the NCLAT, of such
plan is illegal. They then argued that the Committee of Creditors has
both the power and the jurisdiction to deal with all commercial
aspects of a resolution plan, including distribution of proceeds under
such plan, and also referred to and relied upon the recent
amendments made to Section 30 of the Code. They stated that the
ArcelorMittal plan, as amended, looked after all stakeholders
including operational creditors, and stated that a staggering amount
of INR 55,000 crores qua operational creditors was paid during the
600 odd days of CIRP being carried out, operational creditors whose
claims were above INR 1 crore, now being paid approximately 20% of
their admitted dues. They also highlighted the fact that the secured
creditors have lost about INR 17,000 crores of interest in the last
three years due to the account of the corporate debtor having been
classified as NPA. They then argued that the setting up of a subcommittee by the Committee of Creditors is permissible under the
Code, and referred to certain judgments to buttress this proposition.
They further argued that no decision-making power was delegated to
the sub-committee, nor did the sub-committee at any time decide or
13
even recommend on distribution of amounts. They then argued that
the NCLAT admitted various rejected/disputed/estimated claims worth
INR 13,767 crores, which was more than the amount originally
claimed by operational creditors. Various instances of non-application
of mind were pointed out by which claims worth INR 11,278, which
were not yet crystallized, were admitted by the NCLAT for payment,
and various examples of double payment were also given. It was also
argued that the NCLAT erroneously permitted several disputed claims
to be raised outside the provisions of the Code after approval of the
resolution plan, by referring to and relying upon Section 60(6) of the
Code, which merely saved limitation for barred claims. They then
argued that extinguishment of the right of creditors against individual
guarantees extended by the promoters/promoter group of the
corporate debtor was wholly illegal being contrary to several
judgments of this Court and contrary to the terms of the guarantees
themselves. They further argued that the profits that were made
during the CIRP can obviously not be used for payment of the debts
of the corporate debtor, as has been ordered by the NCLAT.
Ultimately, according to the learned counsel, the impugned NCLAT
judgment deserves to be set aside because it has curtailed the
authority of the Committee of Creditors; expanded the jurisdiction of
the Adjudicating Authority as well as the NCLAT beyond the bounds
14
contained in the Code; and has transgressed the most basic tenet of
the Committee of Creditors’ commercial wisdom being reflected by an
over 66% majority vote, which has been nullified by the NCLAT by
completely modifying and substituting the resolution plan approved by
the Committee of Creditors.
7. Shri Shyam Divan, learned senior advocate appearing on
behalf of the State Bank of India, has supported the submission made
on behalf of the Committee of Creditors of Essar Steel India Limited.
According to the learned senior advocate, whereas his client and
other secured creditors are secured to the extent of 99.66% of their
outstanding dues, the only security of Standard Chartered Bank is a
pledge of the shares held by the corporate debtor in an offshore
Mauritian subsidiary, namely Essar Steel Offshore Limited
(hereinafter referred to as “ESOL”), and the fair value of ESOL
pledged shares has been determined at only INR 24.86 crores as
against the total outstanding admitted dues of INR 3487.10 crores
(being 0.7% of the total admitted debt of Standard Chartered Bank).
Thus, according to him, Standard Chartered Bank is an unsecured
creditor to the extent of INR 3462.14 crores, and as against a sum of
INR 60.71 crores which was payable under the resolution plan as
approved by the Committee of Creditors, the NCLAT has now upped
15
this figure to approximately INR 2160 crores completely beyond its
limited jurisdiction under the Code. Apart from the above, he also
argued that Standard Chartered Bank is precluded from raising any
challenge to the constitution of a sub-committee as it had participated
in several meetings in which it raised no objection to the subcommittee, and had in fact requested to be a part of the subcommittee. He then argued that negotiations that were undertaken by
the sub-committee was in accordance with the mandate of the
Committee of Creditors, which alone took all decisions; the subcommittee merely being an executive arm of the Committee of
Creditors.
8. Shri Kapil Sibal, appearing on behalf of the Standard Chartered
Bank, defended the NCLAT judgment on all aspects. According to
him, the offer made by ArcelorMittal was to make a payment of INR
42,000 crores as an upfront amount in order to pay 100% of the
principal outstanding of the secured financial creditors of the
corporate debtor. That this sum came to be offered only as a result of
an offer made by Numetal on 07.09.2018 to pay INR 37,000 crores
as upfront payment to secured financial creditors. According to
learned counsel, the sum of INR 42,000 crores cannot be worked out
unless the principal amount owed to Standard Chartered Bank is also
16
included in the said figure. The figure of INR 42,000 crores was
stated by the counsel of the Committee of Creditors before this
Hon’ble Court, in the final hearing which took place before the
judgment in ArcelorMittal India (supra), and that this sum could be
the minimum value of payment with a scope for further negotiations.
However, what ultimately turned out is a payment of a lesser value,
namely INR 39,500 crores as upfront, INR 2,500 crores being added
as an eyewash towards Guaranteed Working Capital Adjustment. The
reason this was an eyewash is because Odisha Slurry Pipeline
Infrastructure Limited (hereinafter referred to as “OSPIL”), a wholly
owned subsidiary of the corporate debtor, owned a slurry pipeline.
ArcelorMittal, in order to ensure unhindered usage of the said slurry
pipeline, agreed that it would acquire the debts of OSPIL. In order to
achieve such acquisition of the debts of OSPIL, the Core Committee
of Creditors relieved ArcelorMittal from the solemn offer made to the
Supreme Court of India to pay upfront a sum of INR 42,000 crores,
and reduced from this said amount, a sum of INR 2,500 crores. Thus,
the Core Committee’s decision, as ratified by the Committee of
Creditors, was to accept a sum lesser than that guaranteed as
upfront payment by ArcelorMittal. Shri Sibal then trained his guns
against the very formation of a Core Committee/Sub-Committee,
stating that it is against the provisions of the Code, and that as
17
originally conceived, it was only to facilitate representation before the
Adjudicating Authority, which was over, in any case, by 31.05.2018.
The Core Committee however went on conducting secret
negotiations with ArcelorMittal by which it buried Standard Chartered
Bank’s debt almost completely. This was done by reducing Standard
Chartered Bank’s entitlement of INR 2585 crores (INR 2646 crores
minus INR 61 crores), if it were to have outstanding payments made
on the basis of value of debt instead of value of security. In any case,
it was further argued that the resolution plan of ArcelorMittal was itself
flawed in that it would be contrary to Regulation 38(1A) of the
Insolvency and Bankruptcy Board of India (Insolvency Resolution
Process for Corporate Persons) Regulations, 2016 (hereinafter
referred to as the “2016 Regulations”), as it did not deal with the
interests of all stakeholders. It would also be contrary to the RFP that
was issued on 24.12.2017, clause 4.6.1(d) of which stated that the
resolution plan should have contained a statement as to how it would
deal with the interest of all stakeholders including, but not limited to,
break up of amounts to be paid to secured financial creditors,
unsecured financial creditors and operational creditors, all of which
was left, thanks to secret negotiations with ArcelorMittal by the
resolution plan to the Committee of Creditors. Learned counsel then
argued that under the provisions of the Code, the role of the
18
Committee of Creditors is limited to considering the feasibility and
viability of the resolution plan, which does not include the manner of
distribution of the amount payable by the resolution applicant to the
erstwhile creditors of the corporate debtor. In any event, the decision
of the Committee of Creditors on the manner of distribution in the
facts of this case is illegal and arbitrary, as once a creditor is
classified as a financial creditor, such creditor is entitled to equal
treatment with all other financial creditors, irrespective of whether it is
secured or unsecured. For this purpose, the learned senior advocate
relied upon the UNCITRAL Legislative Guide as well as the BLRC
Report, 2015. According to the learned senior advocate, Parliament
has advisedly chosen not to create different classes of financial or
operational creditors when it comes to the process of resolution of
debts; and importance is given to the value of debt, as opposed to,
the value of security which is given importance only when the
liquidation process is to take place. He argued that Section 53 of the
Code would apply only during liquidation and not at the stage of
resolving insolvency as is clear from the fact that “secured creditor”
as defined by Section 3(30) of the Code is used only in Section 53 of
the Code which is contained in Chapter III entitled “Liquidation
Process” and not at all in Chapter II of the Code which is entitled
“Corporate Insolvency Resolution Process”. In Chapter II, only
19
financial and operational creditors, as defined, are spoken about. In
point of fact, in the 17th meeting of the Committee of Creditors held on
09.08.2018, the Committee of Creditors had earlier decided that the
upfront payment made shall be divided amongst financial creditors on
the basis of their voting shares, which in turn is fixed on the basis of
the debt that is owed to each one of them. He further argued that the
Committee of Creditors could not possibly decide the manner of
distribution as it would give rise to a serious conflict of interest, as the
majority may get together to ride roughshod over the minority. He
further argued that no categorisation can be made based on the
security interest of financial creditors, which security interest may
itself vary from first charge holders to second charge holders and
then to subservient and residual charge holders. The fact that
Standard Chartered Bank has been recognised, albeit only on
10.09.2018, as a secured financial creditor by the resolution
applicant, is not challenged by any of the other financial creditors.
Further, the valuation of pledged shares at INR 24.86 crores is itself a
flawed evaluation, the actual value of the shares being in excess of
US $600 million.
9. Shri Sibal then took us to the Amending Act of 2019 and
Section 6 of the Amending Act of 2019 in particular, which amended
20
Section 30 of the Code, shortly after the judgment of NCLAT in the
present case. This amendment was made in the Code with effect
from 16.08.2019. Shri Sibal’s first argument is that the aforesaid
amendment would not apply to the facts of the present case, in as
much as the amendment made is prospective in nature. Further, even
under Explanation 2 that has been added by the amendment, the
facts of the present case do not fall within sub-clauses (i) to (iii) of the
aforesaid Explanation. A reading of the amended Section 30(2)(b)
together with the Explanations contained therein, and the amendment
of Section 30(4) would leave nobody in any manner of doubt that the
purpose of the amendment was to get over the NCLAT judgment in
order that the huge amount of around INR 2,100 crores, that is
payable to a private foreign bank namely Standard Chartered Bank,
gets reduced to around INR 61 crores, so that nationalised banks and
other entities in which the Government has an interest may get a
larger share of the pie to the detriment of Standard Chartered Bank.
The legislature has, therefore, overstepped the separation of powers
boundaries to step in and legislatively adjudicate the facts of a
particular case. Even otherwise, according to learned counsel, the
provision is an arbitrary exercise of power which brings in Section 53,
which is applicable only when the corporate debtor gets liquidated,
into the Corporate Resolution Process, contrary to the original
21
scheme of the Code. Also, Explanation 1 directly interferes with the
judicial function and cannot state that a distribution shall be fair and
equitable, which can only be decided by the Adjudicating Authority
and not by Parliament. Also, the amendment made to Section 30(4)
cannot possibly include value of security interest of a secured creditor
within the expression “feasibility and viability” which has been done
only in order that it be applied to the present case.
10. Shri Arvind Datar supplemented the arguments of Shri Sibal
and also appeared on behalf of the Standard Chartered Bank. He
argued that the loan by Standard Chartered Bank to the wholly
owned subsidiary of the corporate debtor is also a loan towards the
project asset of the corporate debtor and that the State Bank of India
was fully aware of such lending that was availed of by the corporate
debtor. The wholly owned subsidiary is a Special Purpose Vehicle in
order to ensure availability of coal for the corporate debtor to cater to
enhanced production capacity.
11. He elaborated on the meaning of the expression “modifications”
contained in Regulation 39(3) of the 2016 Regulations, arguing that
the power to make modifications does not include the power to
discriminate among creditors who are equally situated. Also, the
Committee of Creditors cannot make rankings among financial
22
creditors or otherwise create a class within a class. He reiterated that
the status of Standard Chartered Bank as a secured financial creditor
has not been disputed by any member of the Committee of Creditors.
12. Shri Ranjit Kumar, learned senior advocate appearing on behalf
of Ideal Movers Limited, an operational creditor of the corporate
debtor, stated that the admitted claim by the resolution professional
was INR 178,50,51,792, and the original resolution plan contained
nothing by way of repayment to his client. It is only after the NCLT
judgment when INR 1,000 crores extra was paid by ArcelorMittal for
operational creditors generally, that his client would now receive
20.5% of the admitted claim. Of course under the NCLAT judgment,
he would stand to gain much more. He argued from a reading of the
preamble of the Code and some of its provisions that a key objective
of the Code is to ensure that the corporate debtor goes on doing its
business as a going concern during the CIRP as a result of which a
large number of operational creditors have to be paid their dues –
such as workmen, electricity dues, etc. It is for this reason that the
CIRP has to ensure the balancing of interest of all stake holders
which can only be achieved by a feasible and viable resolution plan
which is capable of effective implementation. He, therefore, argued
that the process of revival and the process of liquidation are distinct
23
and separate and have been so treated by the Code. This being so,
priorities of payment which apply in liquidation obviously cannot apply
when the corporate debtor is being run as a going concern as
otherwise secured creditors alone will be paid and not operational
creditors who are necessary for the running of the business. This
stems from the fact that the insolvency resolution process is to
maximise the value of assets of corporate debtors whereas the
liquidation process is to recover outstanding dues by selling the
assets of the corporate debtor. He relied strongly on certain
observations in Swiss Ribbons (supra) to buttress the aforesaid
proposition. He also argued that the UNCITRAL Legislative Guide,
being a guide to legislation, ought not to be looked at once the Code
has been enacted. He then argued, that it is obvious that the
Amending Act of 2019 has been made in a great hurry in order that
the NCLAT judgment be neutralised by law. This is clear from the fact
that the NCLAT judgment is dated 04.07.2019 and the Amending Act
of 2019 was passed only one month later i.e. on 06.08.2019. No
Standing Committee was consulted, as was the case of all previous
amendments made to the Code, resulting in completely arbitrary
provisions being inserted. He trained his guns against Section 4 of
the Amending Act of 2019, arguing that timelines cannot be imposed
or stipulated for the adjudication of disputes by any court, least of all
24
the Supreme Court of India. The period of time taken in court
proceedings cannot possibly be included within a timeframe as it
would then nullify the role of the Adjudicating Authority and the
Appellate Tribunal, and would defeat the primary object and purpose
of the Code, which is resolution rather than liquidation.
13. Shri Harin P. Raval, learned senior advocate appearing on
behalf of Kamaljit Singh Ahluwalia in Writ Petition (Civil) No.1058 of
2019 also assailed the Amending Act of 2019. Apart from the
arguments made by Shri Sibal and Shri Ranjit Kumar, he also argued
that the amendments made in Section 30 would be contrary to the
rationale and design of the BLRC Report, 2015. He also added that
the Amending Act of 2019, insofar as it applied retrospectively, would
be constitutionally infirm as it cannot be said that the amendments
made thereto are in any manner clarificatory but are new substantive
amendments.
14. Shri A.K. Gupta, learned advocate appearing for L&T
Infrastructure Finance Co. Limited in Civil Appeal No.6409 of 2019,
assailed the classification of his client as an operational creditor and
stated that, on facts, the appellant had entered into a facility
agreement, sanctioning a term loan of INR 75 crores to Essar Power
Gujarat Limited, a subsidiary of the corporate debtor. The borrower
25
then entered into a Promoter Obligation Agreement by which one
Essar Power Limited undertook an obligation to arrange for cheques
from the corporate debtor. INR 62 crores of such post-dated cheques
were issued in favour of this appellant, as a result of which this
appellant is also entitled to be classified as a financial creditor and
not an operational creditor. He thus assailed the finding of the
resolution professional, the NCLT and the NCLAT on this aspect of
his case.
15. Shri Mishra, learned advocate, appeared on behalf of Dakshin
Gujarat Vij Company, in which he submitted that the NCLAT had
rightly directed that the claim of his client should be considered with
all other creditors, and prayed in the alternative that directions be
issued that his client be entitled to recover the amount claimed,
subject to the decision of the court, from the corporate debtor as a
going concern. Similar were the submissions made by Smt.
Ramachandran on behalf of the Gujarat Energy Transmissions
Corporation Limited. Shri Maninder Singh, learned senior counsel,
appeared on behalf of the State of Gujarat and supported paragraph
196 of the NCLAT judgment by which his client would be paid 60.26%
of Sales Tax dues. Shri Mukul Rohatgi, learned senior advocate
appearing on behalf of Mr. Prashant Ruia supported the findings of
26
the NCLAT, insofar as the NCLAT held that the personal guarantees
given by his client had become ineffective in view of the payment of
the debt by way of resolution to the original lenders. Further, Shri
Rohatgi also argued that the right of subrogation and the right to be
indemnified conferred on a guarantor under the Indian Contract Act
would continue to exist in the absence of a positive waiver of such
right by the said guarantor.
16. Shri Harish Salve, learned senior advocate appearing on behalf
of ArcelorMittal, referred to the appeal filed by the Standard
Chartered Bank, being Civil Appeal No. 6433 of 2019, and stated that
the remedy sought therein was restricted to quashing the impugned
judgment to the extent of paragraph 221 thereof which had held that
financial creditors in whose favour guarantees were executed, could
not re-agitate their claims against the principal borrower, as their total
claim stands satisfied to the extent of the guarantee, and that
therefore all the arguments made by Shri Sibal on behalf of Standard
Chartered Bank, being outside the scope of the appeal, ought not to
be considered at all. He further argued that since most of the
arguments of Shri Sibal would go to the validity of the resolution plan,
which Shri Sibal himself has stated that he is not assailing, should
therefore be rejected on this ground alone. He also argued that it was
27
wholly incorrect to say that only INR 39,500 crores would be an
upfront payment. He read to us certain documents which would show
that the guaranteed upfront payment INR 42,000 crores which his
client had committed very much continued and that INR 2,500 crores
which formed part of this figure was allowed by the Committee of
Creditors while negotiating with his client for very good reason.
17. Shri Neeraj Kishan Kaul, learned senior counsel also appearing
on behalf of ArcelorMittal, stressed the fact that the importance of the
insolvency resolution process is that not only is the corporate debtor
to be put back on its feet, but that the resolution applicant whose plan
is accepted must be able to start on a fresh slate. This being the
case, obviously Shri Rohatgi’s argument, that the personal
guarantees of the erstwhile promoters do not stand extinguished and
that, at the very least, the right of subrogation cannot be taken away,
would boomerang upon the successful resolution applicant if such
right of subrogation were to be allowed to continue. Shri Salman
Khurshid and Shri P. Tripathi, learned senior advocates appearing on
behalf of Deutsche Bank, stressed that it was important to recognise
separate classes of creditors and reiterated the arguments made on
behalf of a number of their forbears as to how it is important to make
a sub-classification among financial creditors, as also among
28
operational creditors, so that there may be real equality, that is,
equality among equals. Shri Vikas Mehta, learned advocate
appearing on behalf of GAIL, adverted to paragraph 84 of the
impugned NCLAT judgment and argued that the facts qua his client
were wrongly stated inasmuch as the admitted claim figures are
wrongly stated.
18. Mrs. Madhavi Divan, learned Additional Solicitor General of
India, replied to the arguments of Standard Chartered Bank and the
operational creditors as to the constitutional invalidity of Sections 4
and 6 of the Amending Act, 2019. She argued that the amendments
further the objects sought to be achieved by the Code, which is
maximisation of value of the assets of the corporate debtor in a timebound frame. She pithily stated that the value of assets and the
passage of time within which insolvency resolution takes place are in
inverse proportion as the passage of time erodes the value of these
assets. She pointed out the previous experiments that had failed and
adverted to certain judgments to show that the failure of previous acts
such as The Sick Industrial Companies (Special Provisions) Act, 1985
(hereinafter referred to as “SICA”) and the Recovery of Debts Due to
Banks and Financial Institutions Act, 1993 (hereinafter referred to as
“Recovery of Debts Act”) were due to enormous delays in disposal of
29
cases. It is this loophole that was sought to be plugged in accordance
with the original conception for the framework of the Insolvency Code
that is to be found in the BLRC Report of 2015. She also referred to
Regulation 39-C of the 2016 Regulations and 32(e) and (f) of the
Insolvency and Bankruptcy Board of India (Liquidation Process)
Regulations, 2016 (hereinafter referred to as “Liquidation Process
Regulations”) together with Regulation 32-A(4) of Liquidation Process
Regulations, to state that a longer period than was originally given by
Section 12 of the Code is now given so that, taking into account court
proceedings, there must now be an outer limit within which either
resolution takes place or the company goes into liquidation. The
Regulations pointed out also show that even if the corporate debtor
goes into liquidation, 90 days is given to sell the undertaking of the
corporate debtor as a going concern so that 90 days over and above
330 days are also available to dispose of the corporate debtor as a
going concern. So far as the challenge to Section 6 of the Amending
Act of 2019 is concerned, she argued that there is a symbiotic
relationship between a resolution applicant and the Committee of
Creditors, who alone are to take a commercial decision by the
requisite majority whether or not to put the corporate debtor back on
its feet. The reason for Explanation 1 to Section 30(2)(b) is that, what
is fair and equitable must be determined within the framework of the
30
Code, which is the commercial wisdom of the Committee of Creditors,
subject to certain minimum guidelines to be observed. Thus,
operational creditors who were originally to be paid only a minimum
calculated on the basis of what they would be paid in the event of
liquidation of a corporate debtor, are now to be paid the higher of two
amounts, thereby raising the threshold of what is to be paid by a
resolution applicant by way of a minimum to operational creditors,
being enhanced under the amended provision. Further, even
dissentient financial creditors are now to be paid a minimum
guaranteed amount for the first time, as 66% of the financial creditors
may give a certain class of financial creditors ‘nil’ recovery, in which
case this provision now comes to their rescue stating that they shall
not be given anything less than the amount to be paid to such
creditors in accordance with Section 53(1) of the Code. She also
argued that it is important to realise that the mention made of Section
53 in Section 6 of the Amending Act of 2019 is not in order that the
priorities as to liquidation be apportioned among creditors, but only in
order that a minimum amount be calculated so as to see that
operational creditors and dissentient financial creditors get something
more than what they would have got pre-amendment. So far as the
Explanation 2 of the substituted Section 30(2)(b) is concerned, she
relied upon this Court’s judgment in ArcelorMittal India (supra) and
31
Swiss Ribbons (supra), for the proposition that there is no vested
right in a resolution applicant to have its plan accepted. This being
the case, and an appeal being a continuation of the proceedings,
there is nothing wrong with applying the amended law in the three
cases that have been mentioned by Explanation 2. So far as the
addition to Section 30(4) by the Amending Act of 2019 is concerned,
the idea was to get over the judgment of the Appellate Tribunal in this
very case stating that sub-classification among different classes of
creditors may be done by the Committee of Creditors also on the
basis of the value of the security interest of a secured creditor. She
also read in copious detail, the Rajya Sabha Debate held on
29.07.2019 in which the Hon’ble Minister piloted this amendment.
According to her, the Federation of Indian Chambers of Commerce
and Industry (hereinafter referred to as “FICCI”) gave a
representation dated 17.07.2019 to the Secretary, Ministry of
Corporate Affairs pointing out the flawed judgment of the NCLAT in
this very case and asking the Government to swiftly amend the Code
so as to reinstate the law as it originally stood, to which the
Government and Parliament responded by enacting the Amending
Act of 2019.
32
19. Shri Tushar Mehta, learned Solicitor General of India, has
supplemented the submissions of the learned Additional Solicitor
General by written arguments. He has argued that it is well settled
that the legislature can always take away the basis of a judicial
decision without directly interfering with the judgment of the Court,
and has cited several decisions to buttress this point. He also argued
that Shri Sibal’s assault on the constitutional validity of Sections 4
and 6 of the Amending Act of 2019 on the ground that the
Amendment was tailor-made to do away with the judgment in this
very matter, so that his client may walk away without anything, is
answered by the well settled principle that an Act of the legislature
cannot be attacked on the ground of improper or bad motive, and
cited certain judgments of this Court in support of the same.
Role of the resolution professional
20. The role of the resolution professional in the revival of the
corporate debtor is stated in detail in several Sections of the Code
read with the 2016 Regulations.
21. The ball starts rolling with the Adjudicating Authority, after
admitting an application under either Sections 7, 9 or 10, ordering
that a public announcement of the initiation of the CIRP together with
calling for the submission of claims under Section 15 shall be made –
33
see Section 13(1)(b) of the Code. For this purpose, the Adjudicating
Authority appoints an interim resolution professional in the manner
laid down in Section 16 – see Section 13(1)(c) of the Code. In the
public announcement of the CIRP, under Section 15(1), information
as to the last date for submission of claims, as may be specified, is to
be given; details of the interim resolution professional, who shall be
vested with the management of the corporate debtor and be
responsible for receiving claims, shall also be given, and the date on
which the CIRP shall close is also to be given – see Section 15(1)(c),
(d) and (f) of the Code. Under Section 17 of the Code, the
management of the affairs of the corporate debtor shall vest in the
interim resolution professional, the Board of Directors of the corporate
debtor standing suspended by law. Among the important duties of the
interim resolution professional is the receiving and collating of all
claims submitted by creditors and the constitution of a Committee of
Creditors – see Section 18(1)(b) and (c) of the Code. Under Section
20 of the Code, the interim resolution professional is to make every
endeavour to protect and preserve the value of the property of the
corporate debtor and manage the operations of the corporate debtor
as a going concern.
34
22. At the first meeting of the Committee of Creditors, which shall
be held within 7 days of its constitution, the Committee, by majority
vote of not less than 66% of the voting share of financial creditors,
must immediately resolve to appoint the interim resolution
professional as a resolution professional, or to replace the interim
resolution professional by another resolution professional – see
Section 22(1) and (2) of the Code. Under Section 23(1), the
resolution professional shall conduct the entire CIRP and manage the
operations of the corporate debtor during the same. Importantly, all
meetings of the Committee of Creditors are to be conducted by the
resolution professional, who shall give notice of such meetings to the
members of the Committee of Creditors, the members of the
suspended board of directors, and operational creditors, provided the
amount of their aggregate dues is not less than 10% of the entire
debt owed. Like the duties of the interim resolution professional under
Section 18 of the Code, it shall be the duty of the resolution
professional to preserve and protect assets of the corporate debtor
including the continued business operations of the corporate debtor –
see Section 25(1) of the Code. For this purpose, he is to maintain an
updated list of claims; convene and attend all meetings of the
Committee of Creditors; prepare the information memorandum in
accordance with Section 29 of the Code; invite prospective resolution
35
applicants; and present all resolution plans at the meetings of the
Committee of Creditors – see Section 25(2)(e) to (i) of the Code.
Under Section 29(1) of the Code, the resolution professional shall
prepare an information memorandum containing all relevant
information, as may be specified, so that a resolution plan may then
be formulated by a prospective resolution applicant. Under Section 30
of the Code, the resolution applicant must then submit a resolution
plan to the resolution professional, prepared on the basis of the
information memorandum. After this, the resolution professional must
present to the Committee of Creditors, for its approval, such
resolution plans which conform to the conditions referred to in Section
30(2) of the Code – see Section 30(3) of the Code. If the resolution
plan is approved by the requisite majority of the Committee of
Creditors, it is then the duty of the resolution professional to submit
the resolution plan as approved by the Committee of Creditors to the
Adjudicating Authority – see Section 30(6) of the Code.
23. The aforesaid provisions of the Code are then fleshed out in the
2016 Regulations. Under Chapter IV of the aforesaid Regulations,
claims by operational creditors, financial creditors, other creditors,
workmen and employees are to be submitted to the resolution
professional along with proofs thereof – see Regulations 7 to 12.
36
Thereafter, under Regulation 13, the resolution professional shall
verify each claim as on the insolvency commencement date, and
thereupon maintain a list of creditors containing the names of
creditors along with the amounts claimed by them, the amounts
admitted by him, and the security interest, if any, in respect of such
claims, and constantly update the aforesaid list – see Regulation
13(1).
24. Chapter X of the Regulations then deals with resolution plans
that are submitted. Under Regulation 35, “fair value” as defined by
Regulation 2(hb)1
 and “liquidation value” as defined by Regulation
2(k)2
 shall be determined by two registered valuers appointed under
Regulation 27, which shall be handed over the resolution
professional.
25. After receipt of the resolution plans in accordance with the
Code and the Regulations, the resolution professional shall then
provide the fair value and liquidation value to every member of the
Committee of Creditors – see Regulation 35(2). Regulation 36 is
1 Under Regulation 2(hb), Insolvency and Bankruptcy Board of India (Insolvency Resolution
Process for Corporate Persons) Regulations, 2016 - “fair value” means the estimated
realizable value of the assets of the corporate debtor, if they were to be exchanged on the
insolvency commencement date between a willing buyer and a willing seller in an arm’s
length transaction, after proper marketing and where the parties had acted knowledgeably,
prudently and without compulsion
2 Id. Under Regulation 2(k) - “liquidation value” means the estimated realizable value of the
assets of the corporate debtor, if the corporate debtor were to be liquidated on the
insolvency commencement date.
37
important as it forms the basis for the submission of a resolution plan.
The information memorandum, spoken of by this regulation, must
contain the following:
“(a) assets and liabilities with such description, as on the
insolvency commencement date, as are generally
necessary for ascertaining their values.
Explanation: “Description” includes the details such as date
of acquisition, cost of acquisition, remaining useful life,
identification number, depreciation charged, book value,
and any other relevant details.
(b) the latest annual financial statements;
(c) audited financial statements of the corporate debtor for
the last two financial years and provisional financial
statements for the current financial year made up to a date
not earlier than fourteen days from the date of the
application;
(d) a list of creditors containing the names of creditors, the
amounts claimed by them, the amount of their claims
admitted and the security interest, if any, in respect of such
claims;
(e) particulars of a debt due from or to the corporate debtor
with respect to related parties;
(f) details of guarantees that have been given in relation to
the debts of the corporate debtor by other persons,
specifying which of the guarantors is a related party;
(g) the names and addresses of the members or partners
holding at least one per cent stake in the corporate debtor
along with the size of stake;
(h) details of all material litigation and an ongoing
investigation or proceeding initiated by Government and
statutory authorities;
(i) the number of workers and employees and liabilities of
the corporate debtor towards them;
(j) ***
38
(k) ***
(l) other information, which the resolution professional
deems relevant to the committee.”
26. Under Regulation 36-A, the resolution professional shall then
publish brief particulars of the invitation for expression of interest in
Form G of the Schedule. This document must also, inter alia, provide
for such basic information about the corporate debtor as may be
required by a prospective resolution applicant for its expression of
interest – see Regulation 36-A (4)(c). The resolution professional,
once he receives a proposed resolution plan, must then conduct due
diligence based on the material on record, in order that the
prospective resolution applicant complies with Section 25(2)(h) of the
Code (which, inter alia, requires prospective resolution applicants to
fulfil such criteria as may be laid down, having regard to the
complexity and scale of operations of the business of the corporate
debtor); the provisions of Section 29-A; and other requirements as
may be specified in the invitation for expression of interest – see
Regulation 36-A(8). Once this is done, the resolution professional
shall issue a provisional list of eligible prospective resolution
applicants to the Committee of Creditors, and after considering any
objection to their inclusion or exclusion, shall then issue the final list
of prospective resolution applicants to the Committee of Creditors –
see Regulation 36-A (10) to (12). Under Regulation 36-B, the
39
resolution professional shall issue the information memorandum,
evaluation matrix, as defined by Regulation 2(h)(a)3
, and a request for
resolution plan within the time stated. Importantly, the resolution
professional shall endeavour to submit the resolution plan approved
by the Committee of Creditors to the Adjudicating Authority, at least
15 days before the maximum period for completion of CIRP, along
with a compliance certificate in Form H of the Schedule.
27. The detailed provisions that have been stated hereinabove
make it clear that the resolution professional is a person who is not
only to manage the affairs of the corporate debtor as a going concern
from the stage of admission of an application under Sections 7, 9 or
10 of the Code till a resolution plan is approved by the Adjudicating
Authority, but is also a key person who is to appoint and convene
meetings of the Committee of Creditors, so that they may decide
upon resolution plans that are submitted in accordance with the
detailed information given to resolution applicants by the resolution
professional. Another very important function of the resolution
professional is to collect, collate and finally admit claims of all
creditors, which must then be examined for payment, in full or in part
or not at all, by the resolution applicant and be finally negotiated and
3 Under Regulation 2(ha), Insolvency and Bankruptcy Board of India (Insolvency Resolution
Process for Corporate Persons) Regulations, 2016 – (ha) - “evaluation matrix” means such
parameters to be applied and the manner of applying such parameters, as approved by the
committee, for consideration of resolution plans for its approval
40
decided by the Committee of Creditors. In fact, in ArcelorMital India
(supra), this Court referred to the role of the resolution professional
under the Code and the aforesaid Regulations, making it clear that
the said role is not adjudicatory but administrative, in the following
terms:
“80. However, it must not be forgotten that a Resolution
Professional is only to “examine” and “confirm” that each
resolution plan conforms to what is provided by Section
30(2). Under Section 25(2)(i), the Resolution Professional
shall undertake to present all resolution plans at the
meetings of the Committee of Creditors. This is followed by
Section 30(3), which states that the Resolution
Professional shall present to the Committee of Creditors,
for its approval, such resolution plans which confirm the
conditions referred to in sub-section (2). This provision has
to be read in conjunction with Section 25(2)(i), and with the
second proviso to Section 30(4), which provides that where
a resolution applicant is found to be ineligible under
Section 29-A(c), the resolution applicant shall be allowed
by the Committee of Creditors such period, not exceeding
30 days, to make payment of overdue amounts in
accordance with the proviso to Section 29-A(c). A
conspectus of all these provisions would show that the
Resolution Professional is required to examine that the
resolution plan submitted by various applicants is complete
in all respects, before submitting it to the Committee of
Creditors. The Resolution Professional is not required to
take any decision, but merely to ensure that the resolution
plans submitted are complete in all respects before they
are placed before the Committee of Creditors, who may or
may not approve it. The fact that the Resolution
Professional is also to confirm that a resolution plan does
not contravene any of the provisions of law for the time
being in force, including Section 29-A of the Code, only
means that his prima facie opinion is to be given to the
Committee of Creditors that a law has or has not been
contravened. Section 30(2)(e) does not empower the
Resolution Professional to “decide” whether the resolution
41
plan does or does not contravene the provisions of law.
Regulation 36-A of the CIRP Regulations specifically
provides as follows:
“36-A. (8) The resolution professional shall conduct due
diligence based on the material on record in order to satisfy
that the prospective resolution applicant complies with—
(a) the provisions of clause (h) of sub-section (2) of Section
25;
(b) the applicable provisions of Section 29-A, and
(c) other requirements, as specified in the invitation for
expression of interest.
(9) The resolution professional may seek any clarification
or additional information or document from the prospective
resolution applicant for conducting due diligence under
sub-regulation (8).
(10) The resolution professional shall issue a provisional
list of eligible prospective resolution applicants within ten
days of the last date for submission of expression of
interest to the committee and to all prospective resolution
applicants who submitted the expression of interest.
(11) Any objection to inclusion or exclusion of a prospective
resolution applicant in the provisional list referred to in subregulation (10) may be made with supporting documents
within five days from the date of issue of the provisional list.
(12) On considering the objections received under subregulation (11), the resolution professional shall issue the
final list of prospective resolution applicants within ten days
of the last date for receipt of objections, to the committee.”
81. Thus, the importance of the Resolution Professional is
to ensure that a resolution plan is complete in all respects,
and to conduct a due diligence in order to report to the
Committee of Creditors whether or not it is in order. Even
though it is not necessary for the Resolution Professional
to give reasons while submitting a resolution plan to the
Committee of Creditors, it would be in the fitness of things
if he appends the due diligence report carried out by him
with respect to each of the resolution plans under
consideration, and to state briefly as to why it does or does
not conform to the law.”
42
Role of the prospective resolution applicant
28. The UNCITRAL Legislative Guide discusses what ought to be the
contents of a resolution plan in an Insolvency Code in the following
terms:
“4. The plan
 xxx xxx xxx
18. The question of what is to be included in the plan is
closely related to the procedure for approval of the plan,
that is, which creditors are required to approve the plan
and the level of support required for approval, the effect of
the plan once approved, that is, will it bind dissenting
creditors and secured creditors and who will be responsible
for implementation of the plan and for ongoing
management of the debtor, and whether or not there is a
requirement for court confirmation. Many insolvency laws
include provisions addressing the content of the
reorganization plan. Some laws address the content of the
plan by reference to general criteria, such as requirements
that the reorganization plan should adequately and clearly
disclose to all parties information regarding both the
financial condition of the debtor and the transformation of
legal rights that is being proposed in the plan, or by
reference to minimal requirements, such as that the plan
must make provision for payment of certain preferred
claims. It should be noted that a plan need not modify or
otherwise affect the rights of every class of creditor.
19. Other laws set out more specific requirements as to
what information is required in relation to the debtor’s
financial situation and the proposals that can be included in
a plan. Information on the financial situation of the debtor
could include asset and liability statements; cash flow
statements; and information relating to the causes or
reasons for the financial situation of the debtor. Information
relating to what is proposed by the plan could include,
depending upon the objective of the plan and the
circumstances of a particular debtor, details of classes of
43
claims; claims modified or affected under the plan and the
treatment to be accorded to each class under the plan; the
continuation or rejection of contracts that are not fully
executed; the treatment of unexpired leases; measures
and arrangements for dealing with the debtor’s assets (e.g.
transfer, liquidation or retention); the sale or other
treatment of encumbered assets; the disclosure and
acceptance procedure; the rights of disputed claims to take
part in the voting and provisions for disputed claims to be
resolved; arrangements concerning personnel of the
debtor; remuneration of management of the debtor;
financing implementation of the plan; extension of the
maturity date or a change in the interest rate or other term
of outstanding security interests; the role to be played by
the debtor in implementation of the plan and identification
of those to be responsible for future management of the
debtor’s business; the settlement of claims and how the
amount that creditors will receive will be more than they
would have received in liquidation; payment of interest on
claims; distribution of all or any part of the assets of the
estate among those having an interest in those assets;
possible changes to the instrument or organic document
constituting the debtor (e.g. changes to by-laws or articles
of association) or the capital structure of the debtor or
merger or consolidation of the debtor with one or more
persons; the basis upon which the business will be able to
keep trading and can be successfully reorganized;
supervision of the implementation of the plan; and the
period of implementation of the plan, including in some
cases a statutory maximum period.
20. Rather than specifying a wide range of detailed
information to be included in a plan, it may be desirable for
the insolvency law to identify the minimum content of a
plan, focusing upon the key objectives of the plan and
procedures for implementation. For example, the
insolvency law may require the plan to detail the classes of
creditors and the treatment each is to be accorded in the
plan; the terms and conditions of the plan (such as
treatment of contracts and the ongoing role of the debtor);
and what is required for implementation of the plan (such
44
as sale of assets or parts of the business, extension of
maturity dates, changes to capital structure of the business
and supervision of implementation).”
29. Under the Code, the prospective resolution applicant has a right
to receive complete information as to the corporate debtor, debts
owed by it, and its activities as a going concern, prior to the
admission of an application under section 7, 9 or 10 of the Code. For
this purpose, it has a right to receive information contained in the
information memorandum as well as the evaluation matrix mentioned
in Regulation 36-B. Once it evinces an expression of interest, what
follows is laid down in Regulation 36-A(7) which reads as follows:
“36-A. Invitation for Expression of Interest
xxx xxx xxx
(7) An expression of interest shall be unconditional and be
accompanied by-
(a) an undertaking by the prospective resolution applicant
that it meets the criteria specified by the committee under
clause (h) of sub-section (2) of section 25;
(b) relevant records in evidence of meeting the criteria
under clause (a);
(c) an undertaking by the prospective resolution applicant
that it does not suffer from any ineligibility under section
29A to the extent applicable;
(d) relevant information and records to enable an
assessment of ineligibility under clause (c);
(e) an undertaking by the prospective resolution applicant
that it shall intimate the resolution professional forthwith if it
becomes ineligible at any time during the corporate
insolvency resolution process;
45
(f) an undertaking by the prospective resolution applicant
that every information and records provided in expression
of interest is true and correct and discovery of any false
information or record at any time will render the applicant
ineligible to submit resolution plan, forfeit any refundable
deposit, and attract penal action under the Code; and
(g) an undertaking by the prospective resolution applicant
to the effect that it shall maintain confidentiality of the
information and shall not use such information to cause an
undue gain or undue loss to itself or any other person and
comply with the requirements under sub-section (2) of
section 29”
Thereafter, the resolution plan submitted by the prospective
resolution applicant must provide for measures as may be necessary
for the insolvency resolution of the corporate debtor for maximisation
of the value of its assets, which may include transfer or sale of assets
or part thereof, whether subject to security interests or not. The plan
may provide for either satisfaction or modification of any security
interest of a secured creditor and may also provide for reduction in
the amount payable to different classes of creditors – see Regulation
37.
30. Accordingly, Regulation 38 then deals with the mandatory
contents of a resolution plan, making it clear that such plan must
contain a provision that the amount due to operational creditors shall
be given priority in payment over financial creditors – see Regulation
38(1). Such plan must also include provisions as to how to deal with
the interests of all stakeholders including financial creditors and
46
operational creditors of the corporate debtor – Regulation 38 (1A). It
must then provide for the term of the plan, management and control
of the business of the corporate debtor during such term, and its
implementation. It must also demonstrate that it is feasible and viable,
and that the resolution applicant has the capability to implement the
said plan. Regulation 38, being important, is set out hereinbelow:
“38. Mandatory contents of the resolution plan
(1) The amount due to the operational creditors under a
resolution plan shall be given priority in payment over
financial creditors.
(1A) A resolution plan shall include a statement as to how it
has dealt with the interests of all stakeholders, including
financial creditors and operational creditors, of the
corporate debtor.
(2) A resolution plan shall provide:
(a) the term of the plan and its implementation schedule;
(b) the management and control of the business of the
corporate debtor during its term; and
(c) adequate means for supervising its implementation.
(3) A resolution plan shall demonstrate that –
(a) it addresses the cause of default;
(b) it is feasible and viable;
(c) it has provisions for its effective implementation;
(d) it has provisions for approvals required and the timeline
for the same; and
 (e) the resolution applicant has the capability to implement
the resolution plan.”
Role of the committee of creditors in the corporate resolution
process
47
31. Since it is the commercial wisdom of the Committee of
Creditors that is to decide on whether or not to rehabilitate the
corporate debtor by means of acceptance of a particular resolution
plan, the provisions of the Code and the Regulations outline in detail
the importance of setting up of such Committee, and leaving
decisions to be made by the requisite majority of the members of the
aforesaid Committee in its discretion. Thus, Section 21(2) of the Code
mandates that the Committee of Creditors shall comprise all financial
creditors of the corporate debtor. “Financial creditors” are defined in
Section 5(7) of the Code as meaning persons to whom a financial
debt is owed and includes a person to whom such debt has been
legally assigned or transferred. “Financial debt” is then defined in
Section 5(8) of the Code as meaning a debt along with interest, if any,
which is disbursed against the consideration for the time value of
money. “Secured creditor” is separately defined in Section 3(30) of
the Code as meaning a creditor in favour of whom a security interest
is created and “security interest” is defined by Section 3(31) as
follows:
“3. Definitions. – In this Code, unless the context
otherwise requires. –
xxx xxx xxx
(31) "security interest" means right, title or interest or a
claim to property, created in favour of, or provided for a
secured creditor by a transaction which secures payment
48
or performance of an obligation and includes mortgage,
charge, hypothecation, assignment and encumbrance or
any other agreement or arrangement securing payment or
performance of any obligation of any person:
Provided that security interest shall not include a
performance guarantee;”
32. It is settled by several judgments of this Court that in order to
trigger application of the Code, a neat division has been made
between financial creditors and operational creditors. It has also been
noticed in some of our judgments that most financial creditors are
secured creditors and most operational creditors are unsecured
creditors. The rationale for only financial creditors handling the affairs
of the corporate debtor and resolving them is for reasons that have
been deliberated upon by the BLRC Report of 2015, which formed
the basis for the enactment of the Insolvency Code.
33. At this juncture, it is important to set out the relevant extracts
from the aforementioned report:
“2. Executive Summary
xxx xxx xxx
The key economic question in the bankruptcy process
xxx xxx xxx
The Committee believes that there is only one correct
forum for evaluating such possibilities, and making a
decision: a creditors committee, where all financial
creditors have votes in proportion to the magnitude of debt
that they hold. In the past, laws in India have brought arms
of the government (legislature, executive or judiciary) into
this question. This has been strictly avoided by the
49
Committee. The appropriate disposition of a defaulting firm
is a business decision, and only the creditors should make
it.
xxx xxx xxx
5. Process for legal entities
xxx xxx xxx
Business decisions by a creditor committee
All decisions on matters of business will be taken by a
committee of the financial creditors. This includes
evaluating proposals to keep the entity as a going concern,
including decisions about the sale of business or units,
retiring or restructuring debt. The debtor will be a nonvoting member on the creditors committee, and will be
invited to all meetings. The voting of the creditors
committee will be by majority, where the majority requires
more than 75 percent of the vote by weight.
xxx xxx xxx
No prescriptions on solutions to resolve the
insolvency
The choice of the solution to keep the entity as a going
concern will be voted on by the creditors committee. There
are no constraints on the proposals that the Resolution
Professional can present to the creditors committee. Other
than the majority vote of the creditors committee, the
Resolution Professional needs to confirm to the Adjudicator
that the final solution complies with three additional
requirements. The first is that the solution must explicitly
require the repayment of any interim finance and costs of
the insolvency resolution process will be paid in priority to
other payments. Secondly, the plan must explicitly include
payment to all creditors not on the creditors committee,
within a reasonable period after the solution is
implemented. Lastly, the plan should comply with existing
laws governing the actions of the entity while implementing
the solutions.
xxx xxx xxx
5.3.1 Steps at the start of the IRP
50
4. Creation of the creditors committee
The creditors committee will have the power to decide the
final solution by majority vote in the negotiations. The
majority vote requires more than or equal to 75 percent of
the creditors committee by weight of the total financial
liabilities. The majority vote will also involve a cram down
option on any dissenting creditors once the majority vote is
obtained…The Committee deliberated on who should be
on the creditors committee, given the power of the creditors
committee to ultimately keep the entity as a going concern
or liquidate it. The Committee reasoned that members of
the creditors committee have to be creditors both with the
capability to assess viability, as well as to be willing to
modify terms of existing liabilities in negotiations. Typically,
operational creditors are neither able to decide on matters
regarding the insolvency of the entity, nor willing to take the
risk of postponing payments for better future prospects for
the entity. The Committee concluded that, for the process
to be rapid and efficient, the Code will provide that the
creditors committee should be restricted to only the
financial creditors.
5.3.3 Obtaining the resolution to insolvency in the IRP
The Committee is of the opinion that there should be
freedom permitted to the overall market to propose
solutions on keeping the entity as a going concern. Since
the manner and the type of possible solutions are specific
to the time and environment in which the insolvency
becomes visible, it is expected to evolve over time, and
with the development of the market. The Code will be open
to all forms of solutions for keeping the entity going without
prejudice, within the rest of the constraints of the IRP.
Therefore, how the insolvency is to be resolved will not be
prescribed in the Code. There will be no restriction in the
Code on possible ways in which the business model of the
entity, or its financial model, or both, can be changed so as
to keep the entity as a going concern. The Code will not
state that the entity is to be revived, or the debt is to be
restructured, or the entity is to be liquidated. This decision
will come from the deliberations of the creditors committee
in response to the solutions proposed by the market.”
(emphasis supplied)
51
34. The aforesaid extracts follow what is stated in the UNCITRAL
Legislative Guide which prescribes as follows:
“2. Nature or form of a plan
3. The purpose of reorganization is to maximize the
possible eventual return to creditors, providing a better
result than if the debtor were to be liquidated and to
preserve viable businesses as a means of preserving jobs
for employees and trade for suppliers. With different
constituents involved in reorganization proceedings, each
may have different views of how the various objectives can
best be achieved. Some creditors, such as major
customers or suppliers, may prefer continued business with
the debtor to rapid repayment of their debt. Some creditors
may favour taking an equity stake in the business, while
others will not. Typically, therefore, there is a range of
options from which to select in a given case. If an
insolvency law adopts a prescriptive approach to the
range of options available or to the choice to be made
in a particular case, it is likely to be too constrictive. It
is desirable that the law not restrict reorganization plans to
those designed only to fully rehabilitate the debtor; prohibit
debt from being written off; restrict the amount that must
eventually be paid to creditors by specifying a minimum
percentage; or prohibit exchange of debt for equity. A nonintrusive approach that does not prescribe such
limitations is likely to provide sufficient flexibility to
allow the most suitable of a range of possibilities to be
chosen for a particular debtor.
xxx xxx xxx
20. Rather than specifying a wide range of detailed
information to be included in a plan, it may be
desirable for the insolvency law to identify the
minimum content of a plan, focusing upon the key
objectives of the plan and procedures for
implementation. For example, the insolvency law may
require the plan to detail the classes of creditors and the
treatment each is to be accorded in the plan; the terms and
conditions of the plan (such as treatment of contracts and
the ongoing role of the debtor); and what is required for
52
implementation of the plan (such as sale of assets or parts
of the business, extension of maturity dates, changes to
capital structure of the business and supervision of
implementation).”
(emphasis supplied)
35. Section 24 of the Code deals with meetings of the Committee of
Creditors. Though voting on the approval of a resolution plan is only
with the financial creditors who form the Committee of Creditors, yet
the resolution professional is to conduct the aforesaid meeting at
which members of the suspended board of directors may be present,
together with one representative of operational creditors, provided
that the aggregate dues owed to all operational creditors is not less
than 10% of the entire debt owed – see Sections 24(2),(3) and (4) of
the Code. Voting shall be in accordance with the voting share
assigned to each financial creditor, which is based on the financial
debts owed to such creditors – see Section 24(6) of the Code.
36. Even though it is the resolution professional who is to run the
business of the corporate debtor as a going concern during the
intermediate period, yet, such resolution professional cannot take
certain decisions relating to management of the corporate debtor
without the prior approval of at least 66% of the votes of the
Committee of Creditors. Section 28 of the Code is important and is
set out hereinbelow:
53
“28. Approval of committee of creditors for certain
actions
(1) Notwithstanding anything contained in any other law for
the time being in force, the resolution professional, during
the corporate insolvency resolution process, shall not take
any of the following actions without the prior approval of the
committee of creditors namely:—
(a) raise any interim finance in excess of the amount as
may be decided by the committee of creditors in their
meeting;
(b) create any security interest over the assets of the
corporate debtor;
(c) change the capital structure of the corporate debtor,
including by way of issuance of additional securities,
creating a new class of securities or buying back or
redemption of issued securities in case the corporate
debtor is a company;
(d) record any change in the ownership interest of the
corporate debtor;
 (e) give instructions to financial institutions maintaining
accounts of the corporate debtor for a debit transaction
from any such accounts in excess of the amount as may be
decided by the committee of creditors in their meeting;
(f) undertake any related party transaction;
(g) amend any constitutional documents of the corporate
debtor;
(h) delegate its authority to any other person;
(i) dispose of or permit the disposal of shares of any
shareholder of the corporate debtor or their nominees to
third parties;
(j) make any change in the management of the corporate
debtor or its subsidiary;
(k) transfer rights or financial debts or operational debts
under material contracts otherwise than in the ordinary
course of business;
54
(l) make changes in the appointment or terms of contract of
such personnel as specified by the committee of creditors;
or
(m) make changes in the appointment or terms of contract
of statutory auditors or internal auditors of the corporate
debtor
(2) The resolution professional shall convene a meeting of
the committee of creditors and seek the vote of the
creditors prior to taking any of the actions under subsection (1).
(3) No action under sub-section (1) shall be approved by
the committee of creditors unless approved by a vote of
sixty-six per cent of the voting shares.
(4) Where any action under sub-section (1) is taken by the
resolution professional without seeking the approval of the
committee of creditors in the manner as required in this
section, such action shall be void.
(5) The committee of creditors may report the actions of the
resolution professional under sub-section (4) to the Board
for taking necessary actions against him under this Code.”
Thus, it is clear that since corporate resolution is ultimately in the
hands of the majority vote of the Committee of Creditors, nothing can
be done qua the management of the corporate debtor by the
resolution professional which impacts major decisions to be made in
the interregnum between the taking over of management of the
corporate debtor and corporate resolution by the acceptance of a
resolution plan by the requisite majority of the Committee of
Creditors. Most importantly, under Section 30(4), the Committee of
Creditors may approve a resolution plan by a vote of not less than
66% of the voting share of the financial creditors, after considering its
55
feasibility and viability, and various other requirements as may be
prescribed by the Regulations.
37. Regulation 18 to 26 of the 2016 Regulations deal with meetings
to be conducted by the Committee of Creditors. The quorum at the
meeting is fixed by Regulation 22, and the conduct of the meeting is
to take place as under Regulation 24. Voting takes place under
Regulation 25 and 26. Most importantly, Regulation 39(3) states:
“39. Approval of resolution plan
xxx xxx xxx
(3) The committee shall evaluate the resolution plans
received under sub-regulation (1) strictly as per the
evaluation matrix to identify the best resolution plan and
may approve it with such modifications as it deems fit
Provided that the committee may approve any resolution
plan with such modifications as it deems fit.”
38. This Regulation fleshes out Section 30(4) of the Code, making it
clear that ultimately it is the commercial wisdom of the Committee of
Creditors which operates to approve what is deemed by a majority of
such creditors to be the best resolution plan, which is finally accepted
after negotiation of its terms by such Committee with prospective
resolution applicants.
39. In K. Sashidhar (supra), the role of the Committee of Creditors
in the corporate resolution process was laid down by this Court thus:
“20. The CoC is constituted as per Section 21 of the I&B
Code, which consists of financial creditors. The term
56
‘financial creditor’ has been defined in Section 5(7) of the
I&B Code to mean any person to whom a financial debt is
owed and includes a person to whom such debt has been
legally assigned or transferred to. Be it noted that the
process of insolvency resolution and liquidation concerning
corporate debtors has been codified in Part II of the I&B
Code, comprising of seven Chapters. Chapter I predicates
that Part II shall apply in matters relating to the insolvency
and liquidation of corporate debtor where the minimum
amount of default is Rs. 1,00,000/-. Section 5 in Chapter I
is a dictionary clause specific to Part II of the Code.
Chapter II deals with the gamut of procedure to be followed
for the corporate insolvency resolution process. For dealing
with the issue on hand, the provisions contained in Chapter
II will be significant. From the scheme of the provisions, it is
clear that the provisions in Part II of the Code are selfcontained code, providing for the procedure for
consideration of the resolution plan by the CoC.
21. The stage at which the dispute concerning the
respective corporate debtors (KS&PIPL and IIL) had
reached the adjudicating authority (NCLT) is ascribable to
Section 30(4) of the I&B Code, which, at the relevant time
in October 2017, read thus:
“30(4)- The committee of creditors may approve a
resolution plan by a vote of not less than seventy five per
cent of voting share of the financial creditors.”
22. If the CoC had approved the resolution plan by
requisite percent of voting share, then as per Section 30(6)
of the I&B Code, it is imperative for the resolution
professional to submit the same to the adjudicating
authority (NCLT). On receipt of such a proposal, the
adjudicating authority (NCLT) is required to satisfy itself
that the resolution plan as approved by CoC meets the
requirements specified in Section 30(2). No more and no
less. This is explicitly spelt out in Section 31 of the I&B
Code, which read thus (as in October 2017):
57
“31. Approval of resolution plan.-(1) If the Adjudicating
Authority is satisfied that the resolution plan as approved
by the committee of creditors under sub-section (4) of
section 30 meets the requirements as referred to in subsection(2) of section 30, it shall by order approve the
resolution plan which shall be binding on the corporate
debtor and its employees, members, creditors, guarantors
and other stakeholders involved in the resolution plan.
(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.”
xxx xxx xxx
39. As aforesaid, upon receipt of a “rejected” resolution
plan the adjudicating authority (NCLT) is not expected to do
anything more; but is obligated to initiate liquidation
process under Section 33(1) of the I&B Code. The
legislature has not endowed the adjudicating authority
(NCLT) with the jurisdiction or authority to analyse or
evaluate the commercial decision of the CoC muchless to
enquire into the justness of the rejection of the resolution
plan by the dissenting financial creditors. From the
legislative history and the background in which the I&B
Code has been enacted, it is noticed that a completely new
approach has been adopted for speeding up the recovery
of the debt due from the defaulting companies. In the new
approach, there is a calm period followed by a swift
resolution process to be completed within 270 days (outer
limit) failing which, initiation of liquidation process has been
made inevitable and mandatory. In the earlier regime, the
58
corporate debtor could indefinitely continue to enjoy the
protection given under Section 22 of Sick Industrial
Companies Act, 1985 or under other such enactments
which has now been forsaken. Besides, the commercial
wisdom of the CoC has been given paramount status
without any judicial intervention, for ensuring completion of
the stated processes within the timelines prescribed by the
I&B Code. There is an intrinsic assumption that financial
creditors are fully informed about the viability of the
corporate debtor and feasibility of the proposed resolution
plan. They act on the basis of thorough examination of the
proposed resolution plan and assessment made by their
team of experts. The opinion on the subject matter
expressed by them after due deliberations in the CoC
meetings through voting, as per voting shares, is a
collective business decision. The legislature, consciously,
has not provided any ground to challenge the “commercial
wisdom” of the individual financial creditors or their
collective decision before the adjudicating authority. That is
made nonjusticiable.”
40. The importance of the majority decision of the Committee of
Creditors is then stated in Section 31(1) of the Code which is set out
as follows:
“31. Approval of resolution plan
(1) If the Adjudicating Authority is satisfied that the
resolution plan as approved by the committee of
creditors under sub-section (4) of section 30 meets the
requirements as referred to in sub-section (2) of section
30, it shall by order approve the resolution plan which
shall be binding on the corporate debtor and its
employees, members, creditors, guarantors and other
stakeholders involved in the resolution plan.”
Thus, what is left to the majority decision of the Committee of
Creditors is the “feasibility and viability” of a resolution plan, which
59
obviously takes into account all aspects of the plan, including the
manner of distribution of funds among the various classes of
creditors. As an example, take the case of a resolution plan which
does not provide for payment of electricity dues. It is certainly open to
the Committee of Creditors to suggest a modification to the
prospective resolution applicant to the effect that such dues ought to
be paid in full, so that the carrying on of the business of the corporate
debtor does not become impossible for want of a most basic and
essential element for the carrying on of such business, namely,
electricity. This may, in turn, be accepted by the resolution applicant
with a consequent modification as to distribution of funds, payment
being provided to a certain type of operational creditor, namely, the
electricity distribution company, out of upfront payment offered by the
proposed resolution applicant which may also result in a consequent
reduction of amounts payable to other financial and operational
creditors. What is important is that it is the commercial wisdom of this
majority of creditors which is to determine, through negotiation with
the prospective resolution applicant, as to how and in what manner
the corporate resolution process is to take place.
Jurisdiction of the Adjudicating Authority and the Appellate
Tribunal
60
41. As has already been seen hereinabove, it is the Adjudicating
Authority which first admits an application by a financial or operational
creditor, or by the corporate debtor itself under Section 7, 9 and 10 of
the Code. Once this is done, within the parameters fixed by the Code,
and as expounded upon by our judgments in Innoventive Industries
Ltd. v. ICICI Bank, (2018) 1 SCC 407 and Macquarie Bank Ltd v.
Shilpi Cable Technologies Ltd. (2018) 2 SCC 674, the Adjudicating
Authority then appoints an interim resolution professional who takes
administrative decisions as to the day to day running of the corporate
debtor; collation of claims and their admissions; and the calling for
resolution plans in the manner stated above. After a resolution plan is
approved by the requisite majority of the Committee of Creditors, the
aforesaid plan must then pass muster of the Adjudicating Authority
under Section 31(1) of the Code. The Adjudicating Authority’s
jurisdiction is circumscribed by Section 30(2) of the Code. In this
context, the decision of this court in K. Sashidhar (supra) is of great
relevance.
42. In K. Sashidhar (supra) this Court was called upon to decide
upon the scope of judicial review by the Adjudicating Authority. This
Court set out the questions to be determined as follows:
“18. Having heard learned counsel for the parties, the moot
question is about the sequel of the approval of the
61
resolution plan by the CoC of the respective corporate
debtor, namely KS&PIPL and IIL, by a vote of less than
seventy five percent of voting share of the financial
creditors; and about the correctness of the view taken by
the NCLAT that the percentage of voting share of the
financial creditors specified in Section 30(4) of the I&B
Code is mandatory. Further, is it open to the adjudicating
authority/appellate authority to reckon any other factor
(other than specified in Sections 30(2) or 61(3) of the I&B
Code as the case may be) which, according to the
resolution applicant and the stakeholders supporting the
resolution plan, may be relevant?
xxx xxx xxx
25. The Court, however, was not called upon to deal with
the specific issue that is being considered in the present
cases namely, the scope of judicial review by the
adjudicatory authority in relation to the opinion expressed
by the CoC on the proposal for approval of the resolution
plan.”
After adverting to the 2016 Regulations, the Court set out the
jurisdiction of the Adjudicating Authority as well as the Appellate
Tribunal as follows:
“42. Whereas, the discretion of the adjudicating authority
(NCLT) is circumscribed by Section 31 limited to scrutiny of
the resolution plan “as approved” by the requisite percent
of voting share of financial creditors. Even in that enquiry,
the grounds on which the adjudicating authority can reject
the resolution plan is in reference to matters specified in
Section 30(2), when the resolution plan does not conform
to the stated requirements. Reverting to Section 30(2), the
enquiry to be done is in respect of whether the resolution
plan provides: (i) the payment of insolvency resolution
process costs in a specified manner in priority to the
repayment of other debts of the corporate debtor, (ii) the
repayment of the debts of operational creditors in
62
prescribed manner, (iii) the management of the affairs of
the corporate debtor, (iv) the implementation and
supervision of the resolution plan, (v) does not contravene
any of the provisions of the law for the time being in force,
(vi) conforms to such other requirements as may be
specified by the Board. The Board referred to is established
under Section 188 of the I&B Code. The powers and
functions of the Board have been delineated in Section 196
of the I&B Code. None of the specified functions of the
Board, directly or indirectly, pertain to regulating the
manner in which the financial creditors ought to or ought
not to exercise their commercial wisdom during the voting
on the resolution plan under Section 30(4) of the I&B Code.
The subjective satisfaction of the financial creditors at the
time of voting is bound to be a mixed baggage of variety of
factors. To wit, the feasibility and viability of the proposed
resolution plan and including their perceptions about the
general capability of the resolution applicant to translate
the projected plan into a reality. The resolution applicant
may have given projections backed by normative data but
still in the opinion of the dissenting financial creditors, it
would not be free from being speculative. These aspects
are completely within the domain of the financial creditors
who are called upon to vote on the resolution plan under
Section 30(4) of the I&B Code.
43. For the same reason, even the jurisdiction of the
NCLAT being in continuation of the proceedings would be
circumscribed in that regard and more particularly on
account of Section 32 of the I&B Code, which envisages
that any appeal from an order approving the resolution plan
shall be in the manner and on the grounds specified in
Section 61(3) of the I&B Code. Section 61(3) of the I&B
Code reads thus:
“61. Appeals and Appellate Authority.-(1) Notwithstanding
anything to the contrary contained under the Companies
Act, 2013 (18 of 2013), any person aggrieved by the
order of the Adjudicating Authority under this part may
63
prefer an appeal to the National Company Law Appellate
Tribunal.
(2) xxx xxx xxx
(3) An appeal against an order approving a resolution
plan under section 31 may be filed on the following
grounds, namely:—
(i) the approved resolution plan is in contravention of the
provisions of any law for the time being in force;
(ii) there has been material irregularity in exercise of the
powers by the resolution professional during the
corporate insolvency resolution period;
(iii) the debts owed to operational creditors of the
corporate debtor have not been provided for in the
resolution plan in the manner specified by the Board;
(iv) the insolvency resolution process costs have not
been provided for repayment in priority to all other debts;
or
(v) the resolution plan does not comply with any other
criteria specified by the Board.
xxxxxxxxx.”
44. On a bare reading of the provisions of the I&B Code, it
would appear that the remedy of appeal under Section
61(1) is against an “order passed by the adjudicating
authority (NCLT)” - which we will assume may also pertain
to recording of the fact that the proposed resolution plan
has been rejected or not approved by a vote of not less
than 75% of voting share of the financial creditors.
Indubitably, the remedy of appeal including the width of
jurisdiction of the appellate authority and the grounds of
appeal, is a creature of statute. The provisions investing
jurisdiction and authority in the NCLT or NCLAT as noticed
earlier, has not made the commercial decision exercised by
the CoC of not approving the resolution plan or rejecting
the same, justiciable. This position is reinforced from the
limited grounds specified for instituting an appeal that too
64
against an order “approving a resolution plan” under
Section 31. First, that the approved resolution plan is in
contravention of the provisions of any law for the time
being in force. Second, there has been material irregularity
in exercise of powers “by the resolution professional”
during the corporate insolvency resolution period. Third, the
debts owed to operational creditors have not been provided
for in the resolution plan in the prescribed manner. Fourth,
the insolvency resolution plan costs have not been
provided for repayment in priority to all other debts. Fifth,
the resolution plan does not comply with any other criteria
specified by the Board. Significantly, the matters or grounds
- be it under Section 30(2) or under Section 61(3) of the
I&B Code - are regarding testing the validity of the
“approved” resolution plan by the CoC; and not for
approving the resolution plan which has been disapproved
or deemed to have been rejected by the CoC in exercise of
its business decision.
45. Indubitably, the inquiry in such an appeal would be
limited to the power exercisable by the resolution
professional under Section 30(2) of the I&B Code or, at
best, by the adjudicating authority (NCLT) under Section
31(2) read with 31(1) of the I&B Code. No other inquiry
would be permissible. Further, the jurisdiction bestowed
upon the appellate authority (NCLAT) is also expressly
circumscribed. It can examine the challenge only in relation
to the grounds specified in Section 61(3) of the I&B Code,
which is limited to matters “other than” enquiry into the
autonomy or commercial wisdom of the dissenting financial
creditors. Thus, the prescribed authorities (NCLT/NCLAT)
have been endowed with limited jurisdiction as specified in
the I&B Code and not to act as a court of equity or exercise
plenary powers.
46. In our view, neither the adjudicating authority (NCLT)
nor the appellate authority (NCLAT) has been endowed
with the jurisdiction to reverse the commercial wisdom of
the dissenting financial creditors and that too on the
specious ground that it is only an opinion of the minority
65
financial creditors. The fact that substantial or majority
percent of financial creditors have accorded approval to the
resolution plan would be of no avail, unless the approval is
by a vote of not less than 75% (after amendment of 2018
w.e.f. 06.06.2018, 66%) of voting share of the financial
creditors. To put it differently, the action of liquidation
process postulated in Chapter-III of the I&B Code, is
avoidable, only if approval of the resolution plan is by a
vote of not less than 75% (as in October, 2017) of voting
share of the financial creditors. Conversely, the legislative
intent is to uphold the opinion or hypothesis of the minority
dissenting financial creditors. That must prevail, if it is not
less than the specified percent (25% in October, 2017; and
now after the amendment w.e.f. 06.06.2018, 44%). The
inevitable outcome of voting by not less than requisite
percent of voting share of financial creditors to disapprove
the proposed resolution plan, de jure, entails in its deemed
rejection.
xxx xxx xxx
49. The argument, though attractive at the first blush, but if
accepted, would require us to re-write the provisions of the
I&B Code. It would also result in doing violence to the
legislative intent of having consciously not stipulated that
as a ground - to challenge the commercial wisdom of the
minority (dissenting) financial creditors. Concededly, the
process of resolution plan is necessitated in respect of
corporate debtors in whom their financial creditors have
lost hope of recovery and who have turned into nonperformer or a chronic defaulter. The fact that the
concerned corporate debtor was still able to carry on its
business activities does not obligate the financial creditors
to postpone the recovery of the debt due or to prolong their
losses indefinitely. Be that as it may, the scope of enquiry
and the grounds on which the decision of “approval” of the
resolution plan by the CoC can be interfered with by the
adjudicating authority (NCLT), has been set out in Section
31(1) read with Section 30(2) and by the appellate tribunal
(NCLAT) under Section 32 read with Section 61(3) of the
66
I&B Code. No corresponding provision has been envisaged
by the legislature to empower the resolution professional,
the adjudicating authority (NCLT) or for that matter the
appellate authority (NCLAT), to reverse the “commercial
decision” of the CoC muchless of the dissenting financial
creditors for not supporting the proposed resolution plan.
Whereas, from the legislative history there is contra
indication that the commercial or business decisions of the
financial creditors are not open to any judicial review by the
adjudicating authority or the appellate authority.
51. Suffice it to observe that in the I&B Code and the
regulations framed thereunder as applicable in October
2017, there was no need for the dissenting financial
creditors to record reasons for disapproving or rejecting a
resolution plan. Further, as aforementioned, there is no
provision in the I&B Code which empowers the adjudicating
authority (NCLT) to oversee the justness of the approach of
the dissenting financial creditors in rejecting the proposed
resolution plan or to engage in judicial review thereof.
Concededly, the inquiry by the resolution professional
precedes the consideration of the resolution plan by the
CoC. The resolution professional is not required to express
his opinion on matters within the domain of the financial
creditor(s), to approve or reject the resolution plan, under
Section 30(4) of the I&B Code. At best, the Adjudicating
Authority (NCLT) may cause an enquiry into the “approved”
resolution plan on limited grounds referred to in Section
30(2) read with Section 31(1) of the I&B Code. It cannot
make any other inquiry nor is competent to issue any
direction in relation to the exercise of commercial wisdom
of the financial creditors - be it for approving, rejecting or
abstaining, as the case may be. Even the inquiry before the
Appellate Authority (NCLAT) is limited to the grounds under
Section 61(3) of the I&B Code. It does not postulate
jurisdiction to undertake scrutiny of the justness of the
opinion expressed by financial creditors at the time of
voting. To take any other view would enable even the
minority dissenting financial creditors to question the logic
or justness of the commercial opinion expressed by the
67
majority of the financial creditors albeit by requisite percent
of voting share to approve the resolution plan; and in the
process authorize the adjudicating authority to reject the
approved resolution plan upon accepting such a challenge.
That is not the scope of jurisdiction vested in the
adjudicating authority under Section 31 of the I&B Code
dealing with approval of the resolution plan.”
Thus, it is clear that the limited judicial review available, which can in
no circumstance trespass upon a business decision of the majority of
the Committee of Creditors, has to be within the four corners of
Section 30(2) of the Code, insofar as the Adjudicating Authority is
concerned, and Section 32 read with Section 61(3) of the Code,
insofar as the Appellate Tribunal is concerned, the parameters of
such review having been clearly laid down in K. Sashidhar (supra).
43. However, Shri Sibal exhorted us to hold that K. Sashidhar
(supra) missed a very vital provision of the Code which is contained
in Section 60(5) of the Code. Section 60(5) reads as follows:
“60. Adjudicating Authority for corporate persons
xxx xxx xxx
(5) Notwithstanding anything to the contrary contained in
any other law for the time being in force, the National
Company Law Tribunal shall have jurisdiction to entertain
or dispose of—
(a) any application or proceeding by or against the
corporate debtor or corporate person;
(b) any claim made by or against the corporate debtor or
corporate person, including claims by or against any of its
subsidiaries situated in India; and
68
(c) any question of priorities or any question of law or facts,
arising out of or in relation to the insolvency resolution or
liquidation proceedings of the corporate debtor or corporate
person under this Code.”
It will be noticed that the non-obstante clause of Section 60(5) speaks
of any other law for the time being in force, which obviously cannot
include the provisions of the Code itself. Secondly, Section 60(5)(c) is
in the nature of a residuary jurisdiction vested in the NCLT so that the
NCLT may decide all questions of law or fact arising out of or in
relation to insolvency resolution or liquidation under the Code. Such
residual jurisdiction does not in any manner impact Section 30(2) of
the Code which circumscribes the jurisdiction of the Adjudicating
Authority when it comes to the confirmation of a resolution plan, as
has been mandated by Section 31(1) of the Code. A harmonious
reading, therefore, of Section 31(1) and Section 60(5) of the Code
would lead to the result that the residual jurisdiction of the NCLT
under Section 60(5)(c) cannot, in any manner, whittle down Section
31(1) of the Code, by the investment of some discretionary or equity
jurisdiction in the Adjudicating Authority outside Section 30(2) of the
Code, when it comes to a resolution plan being adjudicated upon by
the Adjudicating Authority. This argument also must needs be
rejected.
69
44. The minimum value that is required to be paid to operational
creditors under a resolution plan is set out under Section 30(2)(b) of
the Code as being the amount to be paid to such creditors in the
event of a liquidation of the corporate debtor under Section 53. The
Insolvency Committee constituted by the Government in 2018 was
tasked with studying the major issues that arise in the working of the
Code and to recommend changes, if any, required to be made to the
Code. The Insolvency Committee Report, 2018 (hereinafter referred
to as “The Committee Report, 2018”), inter alia, deliberated upon the
objections to Section 30(2)(b) of the Code, inasmuch as it provided
for a minimum payment of a “liquidation value” to the operational
creditors and nothing more, and concluded as follows:
“18. VALUE GUARANTEED TO OPERATIONAL
CREDITORS UNDER A RESOLUTION PLAN
18.1 Section 30(2)(b) of the Code requires the RP to
ensure that every resolution plan provides for payment of
at least the liquidation value to all operational creditors.
Regulation 38(1)(b) of the CIRP Regulations provides that
liquidation value must be paid to operational creditors prior
in time to all financial creditors and within thirty days of
approval of resolution plan by the NCLT. The BLRC Report
states that the guarantee of liquidation value has been
provided to operational creditors since they are not allowed
to be part of the CoC which determines the fate of the
corporate debtor. (BLRC Report, 2015)
18.2 However, certain public comments received by the
Committee stated that, in practice, the liquidation value
which is guaranteed to the operational creditors may be
negligible as they fall under the residual category of
70
creditors under section 53 of the Code. Particularly, in the
case of unsecured operational creditors, it was argued that
they will have no incentive to continue supplying goods or
services to the corporate debtor for it to remain a ‘going
concern’ given that their chances of recovery are abysmally
low.
18.3 The Committee deliberated on the status of
operational creditors and their role in the CIRP. It
considered the viability of using ‘fair value’ as the floor to
determine the value to be given to operational creditors.
Fair value is defined under regulation 2(1)(hb) of the CIRP
Regulations to mean “the estimated realizable value of the
assets of the corporate debtor, if they were to be
exchanged on the insolvency commencement date
between a willing buyer and a willing seller in an arm’s
length transaction, after proper marketing and where the
parties had acted knowledgeably, prudently and without
compulsion.” However, it was felt that assessment and
payment of the fair value upfront, may be difficult. The
Committee also discussed the possibility of using
'resolution value' or 'bid value' as the floor to be guaranteed
to operational creditors but neither of these were deemed
suitable.
18.4 It was stated to the Committee that liquidation value
has been provided as a floor and in practice, many
operational creditors may get payments above this value.
The Committee appreciated the need to protect interests of
operational creditors and particularly Micro, Small and
Medium Enterprises (“MSMEs”). In this regard, the
Committee observed that in practice most of the
operational creditors that are critical to the business of the
corporate debtor are paid out as part of the resolution plan
as they have the power to choke the corporate debtor by
cutting off supplies. Illustratively, in the case of SynergiesDooray Automative Ltd. (Company Appeal No. 123/2017,
NCLT Hyderabad, Date of decision – 02 August, 2017), the
original resolution plan provided for payment to operational
creditors above the liquidation value but contemplated that
it would be made in a staggered manner after payment to
financial creditors, easing the burden of the 30-day
mandate provided under regulation 38 of the CIRP
Regulations. However, the same was modified by the NCLT
71
and operational creditors were required to be paid prior in
time, due to the quantum of debt and nature of the
creditors. Similarly, the approved resolution plan in the
case of Hotel Gaudavan Pvt. Ltd. (Company Appeal No.
37/2017, NCLT Principal Bench, Date of decision – 13
December, 2017) provided for payment of all existing dues
of the operational creditors without any write-off. The
Committee felt that the interests of operational creditors
must be protected, not by tinkering with what minimum
must be guaranteed to them statutorily, but by improving
the quality of resolution plans overall. This could be
achieved by dedicated efforts of regulatory bodies including
the IBBI and Indian Banks' Association.
18.5 Finally, the Committee agreed that presently, most of
the resolution plans are in the process of submission and
there is no empirical evidence to further the argument that
operational creditors do not receive a fair share in the
resolution process under the current scheme of the Code.
Hence, the Committee decided to continue with the present
arrangement without making any amendments to the
Code.”
(emphasis supplied)
Ultimately, the Committee decided against any amendment to be
made to the existing scheme of the Code, thereby retaining the
prescription as to the minimum value that was to be paid to the
operational creditors under a resolution plan.
45. However, as has been correctly argued on behalf of the
operational creditors, the preamble of the Code does speak of
maximisation of the value of assets of corporate debtors and the
balancing of the interests of all stakeholders. There is no doubt that a
key objective of the Code is to ensure that the corporate debtor keeps
operating as a going concern during the insolvency resolution
72
process and must therefore make past and present payments to
various operational creditors without which such operation as a going
concern would become impossible. Sections 5(26), 14(2), 20(1),
20(2)(d) and (e) of the Code read with Regulations 37 and 38 of the
2016 Regulations all speak of the corporate debtor running as a
going concern during the insolvency resolution process. Workmen
need to be paid, electricity dues need to be paid, purchase of raw
materials need to be made, etc. This is in fact reflected in this court’s
judgment in Swiss Ribbons (supra) as follows:
“26. The Preamble of the Code states as follows:
“An Act to consolidate and amend the laws relating to
reorganisation and insolvency resolution of corporate
persons, partnership firms and individuals in a time-bound
manner for maximisation of value of assets of such
persons, to promote entrepreneurship, availability of credit
and balance the interests of all the stakeholders including
alteration in the order of priority of payment of government
dues and to establish an Insolvency and Bankruptcy Board
of India, and for matters connected therewith or incidental
thereto.”
27. As is discernible, the Preamble gives an insight into
what is sought to be achieved by the Code. The Code is
first and foremost, a Code for reorganisation and
insolvency resolution of corporate debtors. Unless such
reorganisation is effected in a time-bound manner, the
value of the assets of such persons will deplete. Therefore,
maximisation of value of the assets of such persons so that
they are efficiently run as going concerns is another very
important objective of the Code. This, in turn, will promote
entrepreneurship as the persons in management of the
corporate debtor are removed and replaced by
73
entrepreneurs. When, therefore, a resolution plan takes off
and the corporate debtor is brought back into the economic
mainstream, it is able to repay its debts, which, in turn,
enhances the viability of credit in the hands of banks and
financial institutions. Above all, ultimately, the interests of
all stakeholders are looked after as the corporate debtor
itself becomes a beneficiary of the resolution scheme—
workers are paid, the creditors in the long run will be repaid
in full, and shareholders/investors are able to maximise
their investment. Timely resolution of a corporate debtor
who is in the red, by an effective legal framework, would go
a long way to support the development of credit markets.
Since more investment can be made with funds that have
come back into the economy, business then eases up,
which leads, overall, to higher economic growth and
development of the Indian economy. What is interesting to
note is that the Preamble does not, in any manner, refer to
liquidation, which is only availed of as a last resort if there
is either no resolution plan or the resolution plans
submitted are not up to the mark. Even in liquidation, the
liquidator can sell the business of the corporate debtor as a
going concern. (See ArcelorMittal [ArcelorMittal (India) (P)
Ltd. v. Satish Kumar Gupta, (2019) 2 SCC 1] at para 83, fn
3).”
(emphasis supplied)
46. This is the reason why Regulation 38(1A) speaks of a resolution
plan including a statement as to how it has dealt with the interests of
all stakeholders, including operational creditors of the corporate
debtor. Regulation 38(1) also states that the amount due to
operational creditors under a resolution plan shall be given priority in
payment over financial creditors. If nothing is to be paid to operational
creditors, the minimum, being liquidation value - which in most cases
74
would amount to nil after secured creditors have been paid - would
certainly not balance the interest of all stakeholders or maximise the
value of assets of a corporate debtor if it becomes impossible to
continue running its business as a going concern. Thus, it is clear that
when the Committee of Creditors exercises its commercial wisdom to
arrive at a business decision to revive the corporate debtor, it must
necessarily take into account these key features of the Code before it
arrives at a commercial decision to pay off the dues of financial and
operational creditors. There is no doubt whatsoever that the ultimate
discretion of what to pay and how much to pay each class or subclass of creditors is with the Committee of Creditors, but, the decision
of such Committee must reflect the fact that it has taken into account
maximising the value of the assets of the corporate debtor and the
fact 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
75
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 reasons given by the Committee of
Creditors while approving a resolution plan may thus be looked at by
the Adjudicating Authority only from this point of view, and once it is
satisfied that the Committee of Creditors has paid attention to these
key features, it must then pass the resolution plan, other things being
equal.
Secured and unsecured creditors; the equality principle
47. The impugned NCLAT judgment has applied an equality
principle down the board stating that whether creditors are secured or
unsecured, financial or operational, equitable treatment demands that
they all be treated as one group of creditors similarly situate, as a
result of which no differences can be made in terms of the amount of
debt to be repaid to them based on whether they are secured or
76
unsecured, and whether they are financial or operational creditors.
The aforesaid judgment relies upon certain paragraphs of this Court’s
judgment in Swiss Ribbons (supra) to buttress the aforesaid finding.
48. The UNCITRAL Legislative Guide states:-
“Designing the key objectives and structure of an
effective and efficient insolvency law
xxx xxx xxx
4. Ensuring equitable treatment of similarly situated
creditors
7. The objective of equitable treatment is based on the
notion that, in collective proceedings, creditors with similar
legal rights should be treated fairly, receiving a distribution
on their claim in accordance with their relative ranking and
interests. This key objective recognizes that all creditors do
not need to be treated identically, but in a manner that
reflects the different bargains they have struck with the
debtor. This is less relevant as a defining factor where
there is no specific debt contract with the debtor, such as in
the case of damage claimants (e.g. for environmental
damage) and tax authorities. Even though the principle of
equitable treatment may be modified by social policy on
priorities and give way to the prerogatives pertaining to
holders of claims or interests that arise, for example, by
operation of law, it retains its significance by ensuring that
the priority accorded to the claims of a similar class affects
all members of the class in the same manner. The policy of
equitable treatment permeates many aspects of an
insolvency law, including the application of the stay or
suspension, provisions to set aside acts and transactions
and recapture value for the insolvency estate, classification
of claims, voting procedures in reorganization and
distribution mechanisms. An insolvency law should address
problems of fraud and favouritism that may arise in cases
of financial distress by providing, for example, that acts and
77
transactions detrimental to equitable treatment of creditors
can be avoided.
xxx xxx xxx
5. Approval of a plan
xxx xxx xxx
(i) Classification of claims
27. The primary purpose of classifying claims is to satisfy
the requirements to provide fair and equitable treatment to
creditors, treating similarly situated claims in the same
manner and ensuring that all creditors in a particular class
are offered the same menu of terms by the reorganization
plan. It is one way to ensure that priority claims are treated
in accordance with the priority established under the
insolvency law. It may also make it easier to treat the
claims of major creditors who can be persuaded to receive
different treatment from the general class of unsecured
creditors, where that treatment may be necessary to make
the plan feasible. Classification can, however, increase the
complexity and costs of the insolvency proceedings,
depending upon how many different classes are identified.
An alternative, to ensure that creditors who should receive
special treatment are not oppressed by the majority, may
be to give those groups the opportunity to challenge the
decision of the majority in court if they have not been
treated in a fair and equitable manner. The fact that such a
facility exists may operate to discourage majorities from
making proposals that would unfairly disadvantage priority
creditors.
(ii) Treatment of dissenting creditors
28. As to the treatment of dissenting creditors, it will be
essential to provide a way of imposing a plan agreed by the
majority of a class upon the dissenting minority in order to
increase the chances of success of the reorganization. It
may also be necessary, depending upon the mechanism
that is chosen for voting on the plan and whether creditors
vote in classes, to consider whether the plan can be made
binding upon dissenting classes of creditors and other
affected parties.
78
29. To the extent that a plan can be approved and enforced
upon dissenting parties, there will be a need to ensure that
the content of the plan provides appropriate protection for
those dissenting parties and, in particular, that their rights
are not unfairly affected. The law might provide, for
example, that dissenting creditors can not be bound unless
assured of certain treatment. As a general principle, that
treatment might be that the creditors will receive at least as
much under the plan as they would have received in
liquidation proceedings. If the creditors are secured, the
treatment required may be that the creditor receives
payment of the value of its security interest, while in the
case of unsecured creditors it may be that any junior
interests, including equity holders, receive nothing. To the
extent that the approval procedure results in a significant
impairment of the claims of creditors and other affected
parties without their consent (in particular secured
creditors), there is a risk that creditors will be unwilling to
provide credit in the future. The mechanism for approval of
the plan, and the availability of appropriate safeguards, is
therefore of considerable importance to the protection of
these interests.
xxx xxx xxx
(c) Approval by secured and priority creditors
(i) The need for secured and priority creditors to vote
34. In many cases of insolvency, secured claims will
represent a significant portion of the value of the debt owed
by the debtor. Different approaches can be taken to
approval of the plan by secured and priority creditors. As a
general principle, however, the extent to which a secured
creditor is entitled to vote will depend upon the manner in
which the insolvency regime treats secured creditors, the
extent to which a reorganization plan can affect the security
interest of the secured creditor and the extent to which the
value of encumbered assets will satisfy the secured
creditor’s claim.
35. Under one approach, where the insolvency law does
not affect secured creditors and, in particular, does not
preclude them from enforcing their rights against the
encumbered assets, there is no need to give these
79
creditors the right to vote since their security interests will
not be affected by the plan. Priority creditors are in a similar
position under this approach—the plan cannot impair the
value of their claims and they are entitled to receive full
payment before creditors without priority are paid. The
limitation of this approach, however, is that it may reduce
the chances for a successful reorganization where the
encumbered assets or modification of the rights of such
creditors are key to the success of the plan. If the secured
creditor is not bound by the plan, the election by the
secured creditor to enforce its rights, such as by
repossessing and selling the encumbered asset, may make
reorganization of the business impossible to implement.
Similarly, there may be circumstances where ensuring a
successful reorganization requires that priority creditors
receive less than the full value of their claims upon
approval of the plan. The prospects for reorganization may
improve if priority creditors will accept payment over time
and if secured creditors will acquiesce when the terms of
the secured debt are modified over time. If these creditors
are not included in the plan and entitled to vote on
proposals affecting their rights, modification of those rights
cannot be achieved.
(ii) Classes of secured and priority creditors
36. Recognizing the need for secured and priority creditors
to participate, a second approach provides for these
creditors to vote as classes separate from unsecured
creditors on a plan that would modify or affect the terms of
their claims, or to otherwise consent to be bound by the
plan. Adopting such an approach provides a minimum
safeguard for the adequate protection of these creditors
and recognizes that the respective rights and interests of
secured and priority creditors differ from those of
unsecured creditors. In many cases, however, the rights of
secured and priority creditors will differ from each other and
it may not be feasible to require all secured creditors or all
priority creditors to vote in a single class. In such cases,
some laws provide that each secured creditor with
separate rights to encumbered assets forms a class of its
own. Those laws also provide that, where secured creditors
do vote as a class (e.g. where there are multiple holders of
bonds that are secured by the same assets), the requisite
80
majority of a class of secured creditors would generally be
the same as that required for approval by unsecured
creditors, although there are examples of laws that require
different majorities depending upon the manner in which
secured creditors rights are to be affected by the plan (e.g.
one law provides that a three-quarter majority is required
where the maturity date is to be extended and a four-fifths
majority where the rights are to be otherwise impaired).
Similarly, each rank of priority claims would be a separate
class under those laws.
xxx xxx xxx
(iii) Where secured creditors are not fully secured
38. To the extent that the value of the encumbered asset
will not satisfy the full amount of the secured creditor’s
claim, a number of insolvency laws provide that those
secured creditors should vote with ordinary unsecured
creditors in respect of the unsatisfied portion of the claim.
This may raise difficult questions of valuation in order to
determine whether, and to what extent, a secured creditor
is in fact secured. For example, where three creditors hold
security interests over the same asset, the value of that
asset may only support the claim first in priority and part of
the second in priority. The second creditor therefore may
have a right to vote only in respect of the unsecured portion
of its claim, while the third creditor will be totally unsecured.
The valuation of the asset is therefore crucial to
determining the extent to which these secured creditors are
secured and whether or not they are entitled to vote as
unsecured creditors with respect to any portion of their
claim.
39. In determining which approach should be taken to this
issue, it will be important to assess the effect of the desired
approach upon the availability and cost of secured
financing and to provide as much certainty and
predictability as possible, balancing this against the
objectives of insolvency law and the benefits to an
economy of successful reorganization.”
(emphasis supplied)
81
The BLRC Report, 2015 is of great help in understanding what is
meant by respecting the rights of all creditors equally. Paragraph
3.4.2 of the said report states:
“3.4.2 Principles driving the design
The Committee chose the following principles to design the
new insolvency and bankruptcy resolution framework:
IV. The Code will ensure a collective process.
9. The law must ensure that all key stakeholders will
participate to collectively assess viability. The law must
ensure that all creditors who have the capability and the
willingness to restructure their liabilities must be part of the
negotiation process. The liabilities of all creditors who are
not part of the negotiation process must also be met in any
negotiated solution.
V. The Code will respect the rights of all creditors equally.
10. The law must be impartial to the type of creditor in
counting their weight in the vote on the final solution in
resolving insolvency.
VI. The Code must ensure that, when the negotiations fail
to establish viability, the outcome of bankruptcy must be
binding.
11. The law must order the liquidation of an enterprise
which has been found unviable. This outcome of the
negotiations should be protected against all appeals other
than for very exceptional cases.
VII. The Code must ensure clarity of priority, and that the
rights of all stakeholders are upheld in resolving
bankruptcy.
12. The law must clearly lay out the priority of distributions
in bankruptcy to all stakeholders. The priority must be
designed so as to incentivise all stakeholders to participate
in the cycle of building enterprises with confidence.
13. While the law must incentivise collective action in
resolving bankruptcy, there must be a greater flexibility to
allow individual action in resolution and recovery during
82
bankruptcy compared with the phase of insolvency
resolution.”
(emphasis supplied)
49. That equitable treatment of creditors is equitable treatment only
within the same class is echoed in American Jurisprudence, 2d,
Volume 9 (hereinafter referred to as “American Jurisprudence”) as
follows:
Ҥ 6. Distribution
Equality of distribution is the theme of a bankruptcy act and
a prime bankruptcy policy. The bankruptcy system is
designed to distribute an estate as equally as possible
among similarly situated creditors. Thus, creditors of equal
status must be treated equally and equitably.
One of the conditions placed upon the debtor’s use of the
Bankruptcy Code to obtain a fresh start is that the debtor
treat all creditors fairly.
The bankruptcy process is the process by which a res,
under the constructive possession of the bankruptcy court,
is administered for the purpose of allowing, disallowing,
organizing, and prioritizing claims of creditors in, to, and
upon the res. Although the central policy of the Bankruptcy
Code is equality of distribution among all creditors,
exceptions are made by granting priority to certain claims
and subordinating others. Pursuant to the central policy,
creditors of equal priority should receive a pro rata share of
the debtor’s property; thus, when there is not enough to go
around, the bankruptcy judge must establish priorities and
apportion assets among creditors with the same priority.”

(emphasis supplied)
Shri Sibal, however, relied upon the following statements in American
Jurisprudence, which read as follows:
“Chapter 11 reorganization, specifically, has been called a
collective remedy, designed to find the optimum solution for
83
all parties connected with a business – not solely for the
business itself and not solely for its creditors.
xxx xxx xxx
Protecting creditors in general is an important objective as
is protecting creditors from each other.”
There is no doubt that even under our Code, reorganisation is a
collective remedy designed to find an optimum solution for all parties
connected with a business in the manner provided by the Code.
Protecting creditors in general is, no doubt, an important objective -
the observation that protecting creditors from each other is also
important, which must be read with footnote 7 in the American
Jurisprudence, which reads as under:
"In re First Central Financial Corp., 377 F.3d 209 (2d Cir.
2004)
The Bankruptcy Code generally does not imbue creditors
with greater rights in a bankruptcy proceeding than they
would enjoy under otherwise applicable non-bankruptcy
law unless it is to serve some bankruptcy purpose. In re
Vermont Elec. Generation & Transmission Co-op., Inc., 240
B.R. 476 (Bankr. D. Vt. 1999)”
A reading of this footnote will show that what is meant by protecting
creditors from each other is only that a Bankruptcy Code should not
be read so as to imbue creditors with greater rights in a bankruptcy
proceeding than they would enjoy under the general law, unless it is
to serve some bankruptcy purpose.
84
50. The importance of valuing security interests separately from
interests of creditors who do not have security is well set out in the
IMF paper on Development of Standards for Security Interest by
Pascale De Boeck and Thomas Laryea, Counsel, IMF Legal
Department. The learned authors state:
“I.VALUE OF SECURITY INTERESTS
In developing standards for the legal framework of security
interests, it is important to recognize that security interests
serve discernable economic goals. Security interests
reduce credit risk by increasing the creditor’s likelihood to
be repaid, not only when payment is due, but also in the
event of a default by its debtor. This increased likelihood of
repayment produces wider economic benefits. First, the
availability of credit is enhanced; borrowers obtain credit in
cases where they would have otherwise failed absent a
security interest. Second, credit is also made available on
better terms involving, for instance, lower interest rates and
longer maturities. The relative cost of secured credit under
that of unsecured credit reflects the commercial recognition
of the advantages of secured credit in connection with the
recovery of the debt.
The efficiency of the legal framework for secured credit is a
critical factor in the strengthening of financial systems. In
the face of financial sector crises, an effective legal
framework of security interests enables banks and other
credit institutions to mitigate the deterioration of their
claims, it also facilitates corporate restructuring by
providing tools to support interim financing. In the longer
term, an effective framework for security interests fosters
economic growth. Specifically, it supports access to
affordable credit, thereby facilitating the acquisition of
goods. Further, it increases the capacity of enterprises to
finance expansion fueled by the supply of credit. Also, an
effective framework for security interests can support the
development of a sound banking system and promotion of
capital markets founded on the efficient allocation of credit
85
and effective and predictable mechanisms for realizing
credit claims.
xxx xxx xxx
III. General Principles
xxx xxx xxx
• Establish clear and predictable priority rules
The issue of priorities between various security interest
devices and between various types of creditors is
extremely complex, largely due to the myriad of possible
competing interests. Whatever priority rules a legal
framework establishes, they ought to be clear, predictable
and transparent. They need to allow creditors to assess
their position before creating a security interest and to
enforce their rights in case of default in a timely, predictable
and cost-efficient manner.
• Facilitate the enforcement of creditor rights
Enforcement is a critical factor in the law and functioning of
secured credit. A security interest is of little value to a
creditor unless the creditor is able to enforce it in a
predictable, efficient and timely manner vis-à-vis the debtor
and third parties. An effective framework needs to allow
quick and predictable enforcement both within and outside
insolvency proceedings.”
51. Likewise the World Bank Report of 2015 titled Principles for
Effective Insolvency and Creditor/Debtor Regimes states:
“Claims and Claims Resolution Procedures
Treatment of Stakeholder Rights and Priorities
C12.1 The rights of creditors and the priorities of claims
established prior to insolvency proceedings under
commercial or other applicable laws should be upheld in an
insolvency proceeding to preserve the legitimate
expectations of creditors and encourage greater
predictability in commercial relationships. Deviations from
this general rule should occur only where necessary to
promote other compelling policies, such as the policy
86
supporting reorganization, or to maximize the insolvency
estate’s value. Rules of priority should enable creditors to
manage credit efficiently, consistent with the following
additional principles:
C12.2 The priority of secured creditors in their collateral
should be upheld and, absent the secured creditor’s
consent, its interest in the collateral should not be
subordinated to other priorities granted in the course of the
insolvency proceeding. Distributions to secured creditors
should be made as promptly as possible.
C12.3 Following distributions to secured creditors from
their collateral and the payment of claims related to the
costs and expenses of administration, proceeds available
for distribution should be distributed pari passu to the
remaining general unsecured creditors, unless there are
compelling reasons to justify giving priority status to a
particular class of claims. Public interests generally should
not be given precedence over private rights. The number of
priority classes should be kept to a minimum.
C12.4 Workers are a vital part of an enterprise, and careful
consideration should be given to balancing the rights of
employees with those of other creditors.”
However, Shri Sibal stated that this report should not be relied upon
as an earlier World Bank Report of 2010, titled “A Global View of
Business Insolvency Systems” (hereinafter referred to as the “2010
Report”) had opined to the contrary.
52. Quite apart from the fact that the 2010 report is an earlier
report, which opined on the basis of the French system, that creditors
are divided into two separate classes without any further subclassification and that the advantage of such system is that it avoids
87
potential conflict of interest among creditors in a particular class, the
report then goes on to state:
“In some cases, classification makes it easier to treat the
claims of major creditors, who may be persuaded to opt to
receive a different treatment from the general class of
unsecured creditors, where such treatment is necessary to
render the plan feasible. In such cases, the treatment for
these major creditors is generally on less favorable terms
than other, similarly situated creditors. Finally, classification
may be a useful means of overriding the vote of a class of
creditors that votes against the plan where the class is
otherwise treated in a fair and equitable manner.4
”
Even according to this report, therefore, a “cramdown” on dissentient
creditors would pass muster under an insolvency law if such creditors
will receive, under a resolution plan, an amount at least equal to what
such creditors would receive in a liquidation proceeding being
“liquidation value”.
53. Also, Philip R. Wood’s book titled “Principles of International
Insolvency” states:
“Secured creditors are super-priority creditors on
insolvency. Security must stand up on insolvency which is
when it is needed most. Security which is valid between the
parties but not as against the creditors of the debtor is
futile. Bankruptcy law which freeze or delay or weaken or
de-prioritise security on insolvency destroy what the law
4 This override, which has come to be known as a “cramdown” based on its effect, allows
the court to conclude that a rejecting class should be compelled to accept the plan where the
class is paid in strict accordance with the relative priority of creditor claims and will receive
under the plan a distribution in an amount equal to or greater than such creditors would
receive in a liquidation proceeding. The rationale is that these creditors cannot claim “foul” if
their recovery is at least as good as they would have received if they had prevailed in having
the enterprise liquidated.
88
created. Hence the end is more important than the
beginning.
Rationale of security - The main purposes and policies of
security are: protection of creditors on insolvency; the
limitation of cascade or domino insolvencies; security
encourages capital, e.g. enterprise finance; security
reduces the cost of credit, e.g. margin collateral in markets;
he who pays for the asset should have the right to the
asset; security encourages the private rescue since the
bank feels safer; security is defensive control, especially in
the case of project finance; security is a fair exchange for
the credit.
Main Objections to security The objections to security
are mainly historical, but they resurrect and live on. The
hostility may stem from: debtor-protection stirred by the
ancient hostility to usurers and money-lending and now
expressed in consumer protection statutes; the prevention
of false wealth, i.e. the debtor has many possessions but
few assets – this is usually met by a requirement for
possession (inefficient because not public) or public
registration; unsecured creditors get less on insolvency and
this is seen as a violation of bankruptcy equality, although
more often it is motivated by desire to protect unpaid
employees and small creditors; security disturbs the safety
of commercial transactions because of priority risks, e.g.
the purchaser of goods; the secured creditor can disrupt a
rescue by selling an essential asset.”
54. Indeed, if an “equality for all” approach recognising the rights of
different classes of creditors as part of an insolvency resolution
process is adopted, secured financial creditors will, in many cases, be
incentivised to vote for liquidation rather than resolution, as they
would have better rights if the corporate debtor was to be liquidated
rather than a resolution plan being approved. This would defeat the
entire objective of the Code which is to first ensure that resolution of
89
distressed assets takes place and only if the same is not possible
should liquidation follow.
55. Financial creditors are in the business of lending money. The
RBI report on Trend and Progress of Banking in India, 2017-2018
reflects that the net interest margin of Indian banks for the financial
year 2017-2018 is averaged at 2.5%. Likewise, the global trend for
net interest margin was at 3.3% for banks in the USA and 1.6% for
banks in the UK in the year 2016, as per the data published on the
website of the bank. Thus, it is clear that financial creditors earn profit
by earning interest on money lent with low margins, generally being
between 1 to 4%. Also, financial creditors are capital providers for
companies, who in turn are able to purchase assets and provide a
working capital to enable such companies to run their business
operation, whereas operational creditors are beneficiaries of amounts
lent by financial creditors which are then used as working capital, and
often get paid for goods and services provided by them to the
corporate debtor, out of such working capital. On the other hand,
market research carried out by India Brand Equity Foundation, a trust
established by the Ministry of Commerce and Industry, as regards the
Oil and Gas sector, has stated that the business risk of operational
creditors who operate with higher profit margins and shorter cyclical
90
repayments must needs be higher. Also, operational creditors have
an immediate exit option, by stopping supply to the corporate debtor,
once corporate debtors start defaulting in payment. Financial
creditors may exit on their long-term loans, either upon repayment of
the full amount or upon default, by recalling the entire loan facility
and/or enforcing the security interest which is a time consuming and
lengthy process which usually involves litigation. Financial creditors
are also part of a regulated banking system which involves not merely
declaring defaulters as non-performing assets but also involves
restructuring such loans which often results in foregoing unpaid
amounts of interest either wholly or partially. All these differences
between financial and operational creditors have been reflected,
albeit differently, in the judgment of Swiss Ribbons (supra). Thus,
this Court in dealing with some of the differences has held:
“50. According to us, it is clear that most financial creditors,
particularly banks and financial institutions, are secured
creditors whereas most operational creditors are
unsecured, payments for goods and services as well as
payments to workers not being secured by mortgaged
documents and the like. The distinction between secured
and unsecured creditors is a distinction which has obtained
since the earliest of the Companies Acts both in the United
Kingdom and in this country. Apart from the above, the
nature of loan agreements with financial creditors is
different from contracts with operational creditors for
supplying goods and services. Financial creditors generally
lend finance on a term loan or for working capital that
enables the corporate debtor to either set up and/or
operate its business. On the other hand, contracts with
91
operational creditors are relatable to supply of goods and
services in the operation of business. Financial contracts
generally involve large sums of money. By way of contrast,
operational contracts have dues whose quantum is
generally less. In the running of a business, operational
creditors can be many as opposed to financial creditors,
who lend finance for the set-up or working of business.
Also, financial creditors have specified repayment
schedules, and defaults entitle financial creditors to recall a
loan in totality. Contracts with operational creditors do not
have any such stipulations. Also, the forum in which
dispute resolution takes place is completely different.
Contracts with operational creditors can and do have
arbitration clauses where dispute resolution is done
privately. Operational debts also tend to be recurring in
nature and the possibility of genuine disputes in case of
operational debts is much higher when compared to
financial debts. A simple example will suffice. Goods that
are supplied may be substandard. Services that are
provided may be substandard. Goods may not have been
supplied at all. All these qua operational debts are matters
to be proved in arbitration or in the courts of law. On the
other hand, financial debts made to banks and financial
institutions are well documented and defaults made are
easily verifiable.
51. Most importantly, financial creditors are, from the very
beginning, involved with assessing the viability of the
corporate debtor. They can, and therefore do, engage in
restructuring of the loan as well as reorganisation of the
corporate debtor's business when there is financial stress,
which are things operational creditors do not and cannot
do. Thus, preserving the corporate debtor as a going
concern, while ensuring maximum recovery for all creditors
being the objective of the Code, financial creditors are
clearly different from operational creditors and therefore,
there is obviously an intelligible differentia between the two
which has a direct relation to the objects sought to be
achieved by the Code.
xxx xxx xxx
92
75. Since the financial creditors are in the business of
moneylending, banks and financial institutions are best
equipped to assess viability and feasibility of the business
of the corporate debtor. Even at the time of granting loans,
these banks and financial institutions undertake a detailed
market study which includes a techno-economic valuation
report, evaluation of business, financial projection, etc.
Since this detailed study has already been undertaken
before sanctioning a loan, and since financial creditors
have trained employees to assess viability and feasibility,
they are in a good position to evaluate the contents of a
resolution plan. On the other hand, operational creditors,
who provide goods and services, are involved only in
recovering amounts that are paid for such goods and
services, and are typically unable to assess viability and
feasibility of business. The BLRC Report, already quoted
above, makes this abundantly clear.
xxx xxx xxx
76. Quite apart from this, the United Nations Commission
on International Trade Law, in its Legislative Guide on
Insolvency Law (the UNCITRAL Guidelines) recognises the
importance of ensuring equitable treatment to similarly
placed creditors and states as follows:
“Ensuring equitable treatment of similarly situated creditors
7. The objective of equitable treatment is based on the
notion that, in collective proceedings, creditors with similar
legal rights should be treated fairly, receiving a distribution
on their claim in accordance with their relative ranking and
interests. This key objective recognises that all creditors do
not need to be treated identically, but in a manner that
reflects the different bargains they have struck with the
debtor. This is less relevant as a defining factor where
there is no specific debt contract with the debtor, such as in
the case of damage claimants (e.g. for environmental
damage) and tax authorities. Even though the principle of
equitable treatment may be modified by social policy on
priorities and give way to the prerogatives pertaining to
holders of claims or interests that arise, for example, by
operation of law, it retains its significance
by UNCITRAL Legislative Guide on Insolvency Law ensuring
93
that the priority accorded to the claims of a similar class
affects all members of the class in the same manner. The
policy of equitable treatment permeates many aspects of
an insolvency law, including the application of the stay or
suspension, provisions to set aside acts and transactions
and recapture value for the insolvency estate, classification
of claims, voting procedures in reorganisation and
distribution mechanisms. An insolvency law should address
problems of fraud and favouritism that may arise in cases
of financial distress by providing, for example, that acts and
transactions detrimental to equitable treatment of creditors
can be avoided.”
77. NCLAT has, while looking into viability and feasibility of
resolution plans that are approved by the Committee of
Creditors, always gone into whether operational creditors
are given roughly the same treatment as financial creditors,
and if they are not, such plans are either rejected or
modified so that the operational creditors' rights are
safeguarded. It may be seen that a resolution plan cannot
pass muster under Section 30(2)(b) read with Section 31
unless a minimum payment is made to operational
creditors, being not less than liquidation value. Further, on
5-10-2018, Regulation 38 has been amended. Prior to the
amendment, Regulation 38 read as follows:
“38. Mandatory contents of the resolution plan.—(1)
A resolution plan shall identify specific sources of funds
that will be used to pay the—
(a) insolvency resolution process costs and provide that
the insolvency resolution process costs, to the extent
unpaid, will be paid in priority to any other creditor;
(b) liquidation value due to operational creditors and
provide for such payment in priority to any financial creditor
which shall in any event be made before the expiry of thirty
days after the approval of a resolution plan by the
adjudicating authority; and
(c) liquidation value due to dissenting financial creditors
and provide that such payment is made before any
recoveries are made by the financial creditors who voted in
favour of the resolution plan.”
Post amendment, Regulation 38 reads as follows:
94
“38. Mandatory contents of the resolution plan.—(1)
The amount due to the operational creditors under a
resolution plan shall be given priority in payment over
financial creditors.
(1-A) A resolution plan shall include a statement as to
how it has dealt with the interests of all stakeholders,
including financial creditors and operational creditors, of
the corporate debtor.”
The aforesaid Regulation further strengthens the rights of
operational creditors by statutorily incorporating the
principle of fair and equitable dealing of operational
creditors' rights, together with priority in payment over
financial creditors.”

(emphasis supplied)
56. By reading paragraph 77 de hors the earlier paragraphs, the
Appellate Tribunal has fallen into grave error. Paragraph 76 clearly
refers to the UNCITRAL Legislative Guide which makes it clear
beyond any doubt that equitable treatment is only of similarly situated
creditors. This being so, the observation in paragraph 77 cannot be
read to mean that financial and operational creditors must be paid the
same amounts in any resolution plan before it can pass muster. On
the contrary, paragraph 77 itself makes it clear that there is a
difference in payment of the debts of financial and operational
creditors, operational creditors having to receive a minimum payment,
being not less than liquidation value, which does not apply to financial
creditors. The amended Regulation 38 set out in paragraph 77 again
does not lead to the conclusion that financial and operational
creditors, or secured and unsecured creditors, must be paid the same
95
amounts, percentage wise, under the resolution plan before it can
pass muster. Fair and equitable dealing of operational creditors’ rights
under the said Regulation involves the resolution plan stating as to
how it has dealt with the interests of operational creditors, which is
not the same thing as saying that they must be paid the same amount
of their debt proportionately. Also, the fact that the operational
creditors are given priority in payment over all financial creditors does
not lead to the conclusion that such payment must necessarily be the
same recovery percentage as financial creditors. So long as the
provisions of the Code and the Regulations have been met, it is the
commercial wisdom of the requisite majority of the Committee of
Creditors which is to negotiate and accept a resolution plan, which
may involve differential payment to different classes of creditors,
together with negotiating with a prospective resolution applicant for
better or different terms which may also involve differences in
distribution of amounts between different classes of creditors.
57. Indeed, by vesting the Committee of Creditors with the
discretion of accepting resolution plans only with financial creditors,
operational creditors having no vote, the Code itself differentiates
between the two types of creditors for the reasons given above.
Further, as has been reflected in Swiss Ribbons (supra), most
96
financial creditors are secured creditors, whose security interests
must be protected in order that they do not go ahead and realise their
security in legal proceedings, but instead are incentivised to act within
the framework of the Code as persons who will resolve stressed
assets and bring a corporate debtor back to its feet. Shri Sibal’s
argument that the expression “secured creditor” does not find
mention in Chapter II of the Code, which deals with the resolution
process, and is only found in Chapter III, which deals with liquidation,
is for the reason that secured creditors as a class are subsumed in
the class of financial creditors, as has been held in Swiss Ribbons
(supra). Indeed, Regulation 13(1) of the 2016 Regulations mandates
that when the resolution professional verifies claims, the security
interest of secured creditors is also looked at and gets taken care of.
Similarly, Regulation 36(2)(d) when it provides for a list of creditors
and the amounts claimed by them in the information memorandum
(which is to be submitted to prospective resolution applicants), also
provides for the amount of claims admitted and security interest in
respect of such claims. Under Regulation 39(4), the compliance
certificate of the resolution professional as to the CIRP being
successful is contained in Form H to the Regulations. This statutory
form, in paragraphs 6 and 7, states as under:
97
“6. The Resolution Plan includes a statement under
regulation 38(1A) of the CIRP Regulations as to how it has
dealt with the interests of all stakeholders in compliance
with the Code and regulations made thereunder.
7. The amounts provided for the stakeholders under the
Resolution Plan is as under:
 (Amount in Rs. Lakh)
Sl.
No.
Category of
Stakeholder
Amount
Claimed
Amount
Admitted
Amount
Provided
under the
Plan
Amount
Provided
to the
Amount
Claimed
(%)
1 Dissenting
Secured
Financial
Creditors
2 Other Secured
Financial
Creditors
3 Dissenting
Unsecured
Financial
Creditors
4 Other
Unsecured
Financial
Creditors
5 Operational
Creditors
Government
Workmen
Employees
…
4 Other Debts
and Dues
Total
Quite clearly, secured and unsecured financial creditors are
differentiated when it comes to amounts to be paid under a resolution
98
plan, together with what dissenting secured or unsecured financial
creditors are to be paid. And, most importantly, operational creditors
are separately viewed from these secured and unsecured financial
creditors in S.No.5 of paragraph 7 of statutory Form H. Thus, it can
be seen that the Code and the Regulations, read as a whole, together
with the observations of expert bodies and this Court’s judgment, all
lead to the conclusion that the equality principle cannot be stretched
to treating unequals equally, as that will destroy the very objective of
the Code - to resolve stressed assets. Equitable treatment is to be
accorded to each creditor depending upon the class to which it
belongs: secured or unsecured, financial or operational.
58. However, Shri Sibal relied strongly upon a judgment of this
Court being Mihir R. Mafatlal v. Mafatlal Industries Ltd. (1997) 1
SCC 579, and in particular paragraph 28 thereof, which stated as
follows:
“28. …On a conjoint reading of the relevant provisions of
Sections 391 and 393 it becomes at once clear that the
Company Court which is called upon to sanction such a
scheme has not merely to go by the ipse dixit of the
majority of the shareholders or creditors or their respective
classes who might have voted in favour of the scheme by
requisite majority but the Court has to consider the pros
and cons of the scheme with a view to finding out whether
the scheme is fair, just and reasonable and is not contrary
to any provisions of law and it does not violate any public
policy. This is implicit in the very concept of compromise or
99
arrangement which is required to receive the imprimatur of
a court of law. No court of law would ever countenance any
scheme of compromise or arrangement arrived at between
the parties and which might be supported by the requisite
majority if the Court finds that it is an unconscionable or an
illegal scheme or is otherwise unfair or unjust to the class
of shareholders or creditors for whom it is meant.
Consequently it cannot be said that a Company Court
before whom an application is moved for sanctioning such
a scheme which might have got the requisite majority
support of the creditors or members or any class of them
for whom the scheme is mooted by the company
concerned, has to act merely as a rubber stamp and must
almost automatically put its seal of approval on such a
scheme. It is trite to say that once the scheme gets
sanctioned by the Court it would bind even the dissenting
minority shareholders or creditors. Therefore, the fairness
of the scheme qua them also has to be kept in view by the
Company Court while putting its seal of approval on the
scheme concerned placed for its sanction. It is, of course,
true that so far as the Company Court is concerned as per
the statutory provisions of Sections 391 and 393 of the Act
the question of voidability of the scheme will have to be
judged subject to the rider that a scheme sanctioned by
majority will remain binding to a dissenting minority of
creditors or members, as the case may be, even though
they have not consented to such a scheme and to that
extent absence of their consent will have no effect on the
scheme. It can be postulated that even in case of such a
scheme of compromise and arrangement put up for
sanction of a Company Court it will have to be seen
whether the proposed scheme is lawful and just and fair to
the whole class of creditors or members including the
dissenting minority to whom it is offered for approval and
which has been approved by such class of persons with
requisite majority vote.”
The very next paragraph, however, states as follows:
100
“29. However further question remains whether the Court
has jurisdiction like an appellate authority to minutely
scrutinise the scheme and to arrive at an independent
conclusion whether the scheme should be permitted to go
through or not when the majority of the creditors or
members or their respective classes have approved the
scheme as required by Section 391 sub-section (2). On this
aspect the nature of compromise or arrangement between
the company and the creditors and members has to be
kept in view. It is the commercial wisdom of the parties to
the scheme who have taken an informed decision about
the usefulness and propriety of the scheme by supporting it
by the requisite majority vote that has to be kept in view by
the Court. The Court certainly would not act as a court of
appeal and sit in judgment over the informed view of the
parties concerned to the compromise as the same would
be in the realm of corporate and commercial wisdom of the
parties concerned. The Court has neither the expertise nor
the jurisdiction to delve deep into the commercial wisdom
exercised by the creditors and members of the company
who have ratified the Scheme by the requisite majority.
Consequently the Company Court's jurisdiction to that
extent is peripheral and supervisory and not appellate. The
Court acts like an umpire in a game of cricket who has to
see that both the teams play their game according to the
rules and do not overstep the limits. But subject to that how
best the game is to be played is left to the players and not
to the umpire.”
In Mihir Mafatlal (supra), the Court was dealing with schemes of
amalgamation under Section 391 of the Companies Act, 1956. Under
Section 392 of the said Act, the High Court is vested with a
supervisory jurisdiction, which includes the power to give directions
and make modifications in such schemes, as it may consider
necessary, for the proper working of the said Schemes. This power in
Section 392 is conspicuous by its absence when it comes to the
101
Adjudicating Authority under the Code, whose jurisdiction is
circumscribed by Section 30(2). It is the Committee of Creditors,
under Section 30(4) read with Regulation 39(3), that is vested with
the power to approve resolution plans and make modifications therein
as the Committee deems fit. It is this vital difference between the
jurisdiction of the High Court under Section 392 of the Companies
Act, 1956 and the jurisdiction of the Adjudicating Authority under the
Code that must be kept in mind when the Adjudicating Authority is to
decide on whether a resolution plan passes muster under the Code.
When this distinction is kept in mind, it is clear that there is no
residual jurisdiction not to approve a resolution plan on the ground
that it is unfair or unjust to a class of creditors, so long as the interest
of each class has been looked into and taken care of. It is important
to note that even under Sections 391 and 392 of the Companies Act,
1956, ultimately it is the commercial wisdom of the parties to the
scheme, reflected in the 75% majority vote, which then binds all
shareholders and creditors. Even under Sections 391 and 392, the
High Court cannot act as a court of appeal and sit in judgment over
such commercial wisdom.
The constitution of a sub-committee by the Committee of
 Creditors
102
59. A large part of Shri Sibal’s submission was centered around the
fact that the Committee of Creditors delegated its functions to a subcommittee, which delegation is impermissible. As a result of this
delegation, the sub-committee secretly made negotiations with
ArcelorMittal, which secret negotiations then produced a wholly
inequitable result in that Standard Chartered Bank, though a financial
creditor, was only paid 1.74% of its admitted claim of INR 3487 crores
as opposed to other financial creditors who were paid 74.8% of what
was claimed by them.
60. Under Section 21(8) of the Code, all decisions by the
Committee of Creditors can be taken by a 51% majority vote, unless,
a higher percentage is required under other specific provisions of the
Code.
61. In Pradyat Kumar Bhose v. The Hon’ble the Chief Justice of
Calcutta High Court (1955) 2 SCR 1331 at page 1345-1346, this
Court, when dealing with the Chief Justice of the High Court of
Calcutta’s administrative powers held:
“The further subordinate objections that have been raised
remain to be considered. The first objection that has been
urged is that even if the Chief Justice had the power to
dismiss, he was not, in exercise of that power, competent
to delegate to another Judge the enquiry into the charges
but should have made the enquiry himself. This contention
proceeds on a misapprehension of the nature of the power.
103
As pointed out in Barnard v. National Dock Labour
Board [(1953) 2 QB 18, 40] at p. 40, it is true that “no
judicial tribunal can delegate its functions unless it is
enabled to do so expressly or by necessary implication”.
But the exercise of the power to appoint or dismiss an
officer is the exercise not of a judicial power but of an
administrative power. It is nonetheless so, by reason of the
fact that an opportunity to show cause and an enquiry
simulating judicial standards have to precede the exercise
thereof. It is well-recognised that a statutory functionary
exercising such a power cannot be said to have delegated
his functions merely by deputing a responsible and
competent official to enquire and report. That is the
ordinary mode of exercise of any administrative power.
What cannot be delegated except where the law
specifically so provides — is the ultimate responsibility for
the exercise of such power. As pointed out by the House of
Lords in Board of Education v. Rice [(1911) AC 179, 182] ,
a functionary who has to decide an administrative matter,
of the nature involved in this case, can obtain the material
on which he is to act in such manner as may be feasible
and convenient, provided only the affected party “has a fair
opportunity to correct or contradict any relevant and
prejudicial material”. The following passage from the
speech of Lord Chancellor in Local Government
Board v. Arlidge [(1915) AC 120, 133] is apposite and
instructive:
“My Lords, I concur in this view of the position of an
administrative body to which the decision of a question in
dispute between parties has been entrusted. The result of
its inquiry must, as I have said, be taken, in the absence of
directions in the statute to the contrary, to be intended to be
reached by its ordinary procedure. In the case of the Local
Government Board it is not doubtful what this procedure is.
The Minister at the head of the Board is directly
responsible to Parliament like other Ministers. He is
responsible not only for what he himself does but for all
that is done in his department. The volume of work
entrusted to him is very great and he cannot do the great
bulk of it himself. He is expected to obtain his materials
vicariously through his officials, and he has discharged his
duty if he sees that they obtain these materials for him
properly. To try to extend his duty beyond this and to insist
104
that he and other members of the Board should do
everything personally would be to impair his efficiency.
Unlike a Judge in a Court he is not only at liberty but is
compelled to rely on the assistance of his staff.”
In view of the above clear statement of the law the
objection to the validity of the dismissal on the ground that
the delegation of the enquiry amounts to the delegation of
the power itself is without any substance and must be
rejected.”
Likewise, in High Court of Judicature at Bombay through its
Registrar v. Shirishkumar Rangrao Patil & Anr. (1997) 6 SCC 339,
this Court, in dealing with the constitution of various committees for
the administration of the High Court, when dealing with question of
delegation held:
“10. It would thus be settled law that the control of the
subordinate judiciary under Article 235 is vested in the High
Court. After the appointment of the judicial officers by the
Governor, the power to transfer, maintain discipline and
keep control over them vests in the High Court. The Chief
Justice of the High Court is first among the Judges of the
High Court. The action taken is by the High Court and not
by the Chief Justice in his individual capacity, nor by the
Committee of Judges. For the convenient transaction of
administrative business in the Court, the Full Court of the
Judges of the High Court generally passes a resolution
authorising the Chief Justice to constitute various
committees including the committee to deal with
disciplinary matters pertaining to the subordinate judiciary
or the ministerial staff working therein. Article 235,
therefore, relates to the power of taking a decision by the
High Court against a member of the subordinate judiciary.
Such a decision either to hold an enquiry into the conduct
of a judicial officer, subordinate or higher judiciary, or to
have the enquiry conducted through a District or Additional
District Judge etc. and to consider the report of the enquiry
officer for taking further action is of the High Court. Equally,
the decision to consider the report of the enquiry officer
105
and to take follow-up action and to make appropriate
recommendation to the Disciplinary Committee or to the
Governor, is entirely of the High Court which acts through
the Committee of the Judges authorised by the Full Court.
Once a resolution is passed by the Full Court of the High
Court, there is no further necessity to refer the matter again
to the Full Court while taking such procedural steps relating
to control of the subordinate judiciary.”
62. We find, that when it comes to the exercise of the Committee of
Creditors’ powers on questions which have a vital bearing on the
running of the business of the corporate debtor, Section 28(1)(h)
provides that though these powers are administrative in nature, they
shall not be delegated to any other person, meaning thereby, that the
Committee of Creditors alone must take the decisions mentioned in
Section 28 and not any person other than such Committee. When it
comes to approving a resolution plan under Section 30(4), there is no
doubt whatsoever that this power also cannot be delegated to any
other body as it is the Committee of Creditors alone that has been
vested with this important business decision which it must take by
itself. However, this does not mean that sub-committees cannot be
appointed for the purpose of negotiating with resolution applicants, or
for the purpose of performing other ministerial or administrative acts,
provided such acts are in the ultimate analysis approved and ratified
by the Committee of Creditors. We find, having gone through the
minutes of all the important creditors’ meetings that were held, that
106
every single administrative decision qua approving and administering
the resolution plan submitted by ArcelorMittal was in fact done by the
requisite majority of the Committee of Creditors itself, the subcommittee having been used only for purposes of initiating
proceedings and negotiating with ArcelorMittal, which ultimately
culminated in the resolution plan as finally negotiated, being passed
by the requisite majority of creditors on 23.10.2018. In point of fact,
Standard Chartered Bank voted in favour of the constitution of a subcommittee on the 12th committee of creditors meeting of 02.05.2018,
as also, in favour of decisions of the Committee of Creditors finalizing
drafts of sub-committees on eligibility of resolution applicants at the
13th Committee of Creditors meeting on 05.05.2018. Also, as a
matter of fact, on 31.05.2018, at the 16th Committee of Creditors
meeting, a request was made by Standard Chartered Bank to be a
member of the sub-committee, which request was later withdrawn.
We also find that in the authorisation to the sub-committee to
negotiate with ArcelorMittal, mooted at the 20th Committee of
Creditors meeting on 19.10.2018, a request was made by Standard
Chartered Bank for inclusion in the said sub-committee. However,
Standard Chartered Bank did not agree to put the reconstitution of
the sub-committee to vote by the Committee of Creditors. Given
these facts, we find, therefore, that it is only when Standard
107
Chartered Bank found that things were going against it that it started
raising objections on the technical plea that sub-committees cannot
be constituted under the Code. This is not a bonafide plea. For all
these reasons, this objection of Standard Chartered Bank is also
rejected.
Extinguishment of Personal Guarantees and Undecided Claims
63. Shri Gopal Subramanium and Shri Rakesh Dwivedi have also
appealed against the extinguishment of the rights of creditors against
guarantees that were extended by the promoters/promoter group of
the corporate debtor. According to them, this was done by a side wind
by the Appellate Tribunal without any reasons for the same.
64. Shri Prashant Ruia a promoter/director of the corporate debtor
in his personal guarantee dated 28.09.2013, specifically stated as
follows:
“7. The obligations of the Guarantor under this Guarantee
shall not be affected by any act, omission, matter or thing
that, but for this Guarantee, would reduce, release or
prejudice any of its obligations under this Guarantee
(without limitation and whether or not known to it or any
Secured Party) including :
xxx xxx xxx
(g) any insolvency or similar proceedings.”
108
Also, under the caption “terms of settlement”, the final resolution plan
dated 02.04.2018, as approved on 23.10.2018, specifically provided:
“Financial Creditors:
Pursuant to the approval of this Resolution Plan by the
Adjudicating Authority, each of the Financial Creditors shall
be deemed to have agreed and acknowledged the
following terms:
 The payment to the Financial creditors in accordance
with this Resolution Plan shall be treated as full and final
payment of all outstanding dues of the Corporate Debtor to
each of the Financial Creditors as of the Effective Date,
and all agreements and arrangements entered into by or in
favour of each of the Financial Creditors, including but not
limited to loan agreements and security agreements (other
than corporate or personal guarantees provided in relation
to the Corporate Debtor by the Existing Promoter Group or
their respective affiliates) shall be deemed to have been
(i) assigned / novated to the Resolution applicant, or any
Person nominated by the Resolution applicant, with effect
from the effective Date, with no rights subsisting or
accruing to the Financial Creditors for the period prior to
such assignment or novation; and (ii) to the extent not
legally capable of assigned or novated- terminated with
effect from the effective Date, with no rights accruing or
subsisting to the Financial Creditors for the period prior to
termination.
 In relation to the loan and financial assistance provided to
the Corporate Debtor; each of the Financial Creditors, as
the case maybe, shall:
- Assign/ novate all security given (including but not limited
to Encumbrance over assets of the Corporate Debtor,
pledge of shares of the Corporate Debtor (other than
corporate guarantees and personal guarantees) related in
any manner to the Corporate Debtor) to the Resolution
Applicant and /or its Connected Persons, and /or banks or
financial institutions designated by the Resolution Applicant
109
in this regard, pursuant to the Acquisition Structure, with
effect from the Effective Date;
- Issue such letters and communications, and take such
other actions, as may be required or deemed necessary for
the release, assignment or novation of (i) the Encumbrance
over the assets of the Corporate Debtor; and (ii) the pledge
over the shares of the Corporate Debtor; within 5(five)
Business Days from the Effective Date; and
- Be deemed to have waived all claims and dues (including
interest and penalty, if any) from the Corporate Debtor
arising on and from the insolvency Commencement Date,
until the effective Date.”
65. Shri Rohatgi, learned senior advocate appearing on behalf of
Shri Prashant Ruia, also pointed out Section XIII (1)(g) of the
resolution plan dated 23.10.18, in which it is stated as follows:
“Upon the approval of the Resolution Plan by the
Adjudicating Authority in relation to guarantees provided for
and on behalf of, and in order to secure the financial
assistance availed by the Corporate Debtor, which have
been invoked prior to the Effective Date, claims of the
guarantor on account of subrogation, if any, under any
such guarantee shall be deemed to have been abated,
released, discharged and extinguished.
It is hereby clarified that, the aforementioned clause shall
not apply in any manner which may extinguish/affect the
rights of the Financial Creditors to enforce the corporate
guarantees and personal guarantees issued for and on
behalf of the Corporate Debtor by Existing Promoter Group
or their respective affiliates, which guarantees shall
continue to be retained by the Financial Creditors and shall
continue to be enforceable by them.”
(emphasis supplied)
We were also informed by the learned senior counsel that the
personal guarantees of the promoter group have been invoked and
110
legal proceedings in respect thereof are pending. It has been pointed
out to us that Shri Prashant Ruia and other members of the promoter
group, who are guarantors, are not parties to the resolution plan
submitted by ArcelorMittal and hence, the resolution plan cannot bind
them to take away rights of subrogation, which they may have if they
are ordered to pay amounts guaranteed by them in the pending legal
proceedings.
66. Section 31(1) of the Code makes it clear that once a resolution
plan is approved by the Committee of Creditors it shall be binding on
all stakeholders, including guarantors. This is for the reason that this
provision ensures that the successful resolution applicant starts
running the business of the corporate debtor on a fresh slate as it
were. In State Bank of India v. V. Ramakrishnan, 2018 (9) SCALE
597, this Court relying upon Section 31 of the Code has held:
“22. Section 31 of the Act was also strongly relied upon by
the Respondents. This Section only states that once a
Resolution Plan, as approved by the Committee of
Creditors, takes effect, it shall be binding on the corporate
debtor as well as the guarantor. This is for the reason that
otherwise, Under Section 133 of the Indian Contract Act,
1872, any change made to the debt owed by the corporate
debtor, without the surety's consent, would relieve the
guarantor from payment. Section 31(1), in fact, makes it
clear that the guarantor cannot escape payment as the
Resolution Plan, which has been approved, may well
include provisions as to payments to be made by such
guarantor. This is perhaps the reason that Annexure VI(e)
to Form 6 contained in the Rules and Regulation 36(2)
111
referred to above, require information as to personal
guarantees that have been given in relation to the debts of
the corporate debtor. Far from supporting the stand of the
Respondents, it is clear that in point of fact, Section 31 is
one more factor in favour of a personal guarantor having to
pay for debts due without any moratorium applying to save
him.”
Following this judgment, it is difficult to accept Shri Rohatgi’s
argument that that part of the resolution plan which states that the
claims of the guarantor on account of subrogation shall be
extinguished, cannot be applied to the guarantees furnished by the
erstwhile directors of the corporate debtor. So far as the present case
is concerned, we hasten to add that we are saying nothing which may
affect the pending litigation on account of invocation of these
guarantees. However, the NCLAT judgment being contrary to Section
31(1) of the Code and this Court’s judgment in State Bank of India
(supra), is set aside.
67. For the same reason, the impugned NCLAT judgment in holding
that claims that may exist apart from those decided on merits by the
resolution professional and by the Adjudicating Authority/Appellate
Tribunal can now be decided by an appropriate forum in terms of
Section 60(6) of the Code, also militates against the rationale of
Section 31 of the Code. A successful resolution applicant cannot
suddenly be faced with “undecided” claims after the resolution plan
112
submitted by him has been accepted as this would amount to a hydra
head popping up which would throw into uncertainty amounts payable
by a prospective resolution applicant who successfully take over the
business of the corporate debtor. All claims must be submitted to and
decided by the resolution professional so that a prospective
resolution applicant knows exactly what has to be paid in order that it
may then take over and run the business of the corporate debtor. This
the successful resolution applicant does on a fresh slate, as has been
pointed out by us hereinabove. For these reasons, the NCLAT
judgment must also be set aside on this count.
Utilisation of profits of the corporate debtor during CIRP to pay
off creditors
68. The RFP issued in terms of Section 25 of the Code and
consented to by ArcelorMittal and the Committee of Creditors had
provided that distribution of profits made during the corporate
insolvency process will not go towards payment of debts of any
creditor – see Clause 7 of the first addendum to the RFP dated
08.02.2018. On this short ground, this part of the judgment of the
NCLAT is also incorrect.
Constitutional Validity of Section 4 and 6 of the Amending Act,
2019
113
69. In Swiss Ribbons (supra) this Court was at pains to point out,
referring, inter alia, to various American decisions in paras 17 to 24,
that the legislature must be given free play in the joints when it comes
to economic legislation. Apart from the presumption of
constitutionality which arises in such cases, the legislative judgment
in economic choices must be given a certain degree of deference by
the courts. In para 120 of the said judgment, this Court held:
“120. The Insolvency Code is a legislation which deals with
economic matters and, in the larger sense, deals with the
economy of the country as a whole. Earlier experiments, as
we have seen, in terms of legislations having failed, “trial”
having led to repeated “errors”, ultimately led to the
enactment of the Code. The experiment contained in the
Code, judged by the generality of its provisions and not by
so-called crudities and inequities that have been pointed
out by the petitioners, passes constitutional muster. To stay
experimentation in things economic is a grave
responsibility, and denial of the right to experiment is
fraught with serious consequences to the nation. We have
also seen that the working of the Code is being monitored
by the Central Government by Expert Committees that
have been set up in this behalf. Amendments have been
made in the short period in which the Code has operated,
both to the Code itself as well as to subordinate legislation
made under it. This process is an ongoing process which
involves all stakeholders, including the petitioners.”
It is in this background that the constitutional challenge to the
Amending Act of 2019 will have to be decided.
70. Closely on the heels of the impugned NCLAT judgment which
was delivered on 04.07.2019, a representation dated 17.07.2019 was
written by the Deputy Secretary General, FICCI to the Secretary,
114
Ministry of Corporate Affairs, pointing out the flaws of the NCLAT
judgment and suggesting that the Government may consider
amendment of the Code to reinstate the law as it was and should be.
This representation stated:
“A case in point is the recent NCLAT judgment which, in
effect, places Secured and unsecured Financial Creditors
as well as Financial and Operational Creditors on an equal
footing, thus virtually erasing the distinction specifically
carved between these two classes of creditors by the
provisions of the Code. It may be noted that the
consequences of this order stretch beyond this particular
case.
The doctrine that secured creditors shall rank ahead of
unsecured creditors is a core principle of banking. It allows
banks to lend to companies and individuals at lower rates
of interest in a secured lending because they know that
their loan is secured and in the eventuality of a default,
their losses would be mitigated. By virtue of this order, the
borrowing rates for all classes would go up in the future
because banks can’t be sure of protecting their losses. The
fundamental principles of credit analysis and rating no
longer hold true. This would also result in unjust enrichment
for some creditors who, knowing that they don’t have
benefit of the security, lent at a much higher rate as
compared to the secured lenders. Besides earning far
more money than secured creditors, due to higher interest
rate during the pre insolvency stage they now have the
benefit of higher share in the plan value, at the expense of
secured creditors. In fact the ruling puts in question the
very concept of security – what is the use of a
charge/security if it is meaningless in insolvency? Even
other statutes, including the Companies Act, 2013 clearly
lay down a distinction between secured and unsecured
creditors and if both are treated at par it will be a huge
disincentive for secured creditors…In fact, in its judgement
on the constitutionality of the IBC earlier this year, the
Supreme Court had justified the difference between
115
financial and operational creditors. The NCLAT order
effectively negates that distinction, which is against the
fundamental theme of the IBC. If the distinction between
secured and unsecured financial creditors and between
financial and operational creditors is not maintained,
bankers would be reluctant to use the IBC provisions for
resolution of stressed assets, and would prefer for the
companies to enter liquidation, which is certainly not the
intent of the Code. The decision may also open the floodgates for reopening of previously concluded cases as well
as filing of fresh applications and appeals by operational
creditors, alleging discrimination and seeking parity with
financial creditors and also by unsecured financial
creditors, alleging discrimination and seeking parity with
secured financial creditors.
xxx xxx xxx
We would like to draw your attention to Sections 30 and 31
of the Code which contain detailed provisions on
submission and approval of the resolution plan. As per
section 31(1), once the Adjudicating Authority is satisfied
that the resolution plan as approved by the committee of
creditors meets the requirements of section 30, it shall
approve the resolution plan. The Insolvency and
Bankruptcy Board of India has also prescribed rules and
regulations on mandatory requirements of resolution plan.
The statute thus clearly empowers the committee of
creditors to decide the distribution of funds. It also
recognizes that as long as the resolution plan is in
conformity with law, the Adjudication Authority must
approve the resolution plan, as is evidenced by the usage
of the word ‘shall’ in section 31(1). In K. Sashidhar case the
Supreme Court has clearly held that commercial decisions
of the committee of creditors are not open to judicial
review. We would like to clarify that the fundamental
principle that there should be no discrimination between
similarly situated creditors is not being questioned by the
industry. The question is whether we can redefine class to
mean all financial creditors irrespective of inter-creditor
arrangement or their security. Such a finding is a complete
rewrite of laws, practices and the agreement and bargain of
116
parties at the time of financing (or when goods or services
were provided).
We therefore strongly suggest that the Government may
consider amendment of the Code to expressly clarify the
distinction between secured and unsecured creditors and
between financial and operational creditors. Also, decisions
of resolution applicant, as accepted by the committee of
creditors should be considered final unless they are found
to be contrary to law. This would avoid any confusion; be in
line with the global practices and held India retain its status
of preferred investment destination.”
71. Pursuant to this and representations from Banks and industry,
the Amending Act of 2019 was then made. Sections 4 and 6 of the
Amending Act of 2019 read as under:
“4. Amendment of section 12.
In section 12 of the principal Act, in sub-section (3), after
the proviso, the following provisos shall be inserted,
namely:––
“Provided further that the corporate insolvency resolution
process shall mandatorily be completed within a period of
three hundred and thirty days from the insolvency
commencement date, including any extension of the period
of corporate insolvency resolution process granted under
this section and the time taken in legal proceedings in
relation to such resolution process of the corporate debtor:
Provided also that where the insolvency resolution process
of a corporate debtor is pending and has not been
completed within the period referred to in the second
proviso, such resolution process shall be completed within
a period of ninety days from the date of commencement of
the Insolvency and Bankruptcy Code (Amendment) Act,
2019.”
xxx xxx xxx
6. Amendment to section 30.
In section 30 of the principal Act,––
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(a) in sub-section (2), for clause (b), the following shall be
substituted, namely:—
“(b) provides for the payment of debts of operational
creditors in such manner as may be specified by the
Board which shall not be less than––
(i) the amount to be paid to such creditors in the
event of a liquidation of the corporate debtor
under section 53; or
(ii) the amount that would have been paid to such
creditors, if the amount to be distributed under the
resolution plan had been distributed in
accordance with the order of priority in subsection (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 the 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.
Explanation 2.––For the purposes of this clause, it is
hereby declared that on and from the date of
commencement of the Insolvency and Bankruptcy
Code (Amendment) Act, 2019, the provisions of this
clause shall also apply to the corporate insolvency
resolution process of a corporate debtor––
(i) where a resolution plan has not been approved
or rejected by the Adjudicating Authority;
(ii) where an appeal has been preferred under
section 61 or section 62 or such an appeal is
not time barred under any provision of law for the
time being in force; or
(iii) where a legal proceeding has been initiated in
any court against the decision of the Adjudicating
Authority in respect of a resolution plan;”
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b) in sub-section (4), after the words “feasibility and
viability,”, the words, brackets and figures “the manner of
distribution proposed, which may take into account the
order of priority amongst creditors as laid down in subsection (1) of section 53, including the priority and value of
the security interest of a secured creditor” shall be
inserted.”
72. The frontal attack of Shri Sibal on Sections 4 and 6 of the
Amending Act of 2019 is that it was tailor-made to do away with the
judgment of the NCLAT in this very matter. This being so, such
legislation would be clearly outside the bounds of the legislature as
the legislature cannot interfere with a particular judgment and set it
aside.
73. There is no doubt that the Amending Act of 2019 consists of
several Sections which have been enacted/amended as difficulties
have arisen in the working of the Code. While it is true that it may
well be that the law laid down by the NCLAT in this very case
forms the basis for some of these amendments, it cannot be said
that the legislature has directly set aside the judgment of the
NCLAT. Since an appeal against the judgment of the NCLAT lies to
the Supreme Court, the legislature is well within its bounds to lay
down laws of general application to all persons affected, bearing in
mind what it considers to be a curing of a defective reading of the
law by an Appellate Tribunal. There can be no doubt whatsoever
119
that apart from the present case the amendments made by the
Amending Act of 2019 apply down the board to all persons who are
affected by its provisions. Also, it is settled law that bad faith, in the
sense of improper motives, cannot be ascribed to a legislature
making laws. This is settled law ever since the celebrated
judgment of B.K. Mukherjea,J. In K.C. Gajapati Narayan Deo and
Others v. State of Orissa 1954 SCR 1. This was felicitously laid
down as follows:
“…As the question is of some importance and is likely to
be debated in similar cases in future, it would be
necessary to examine the precise scope and meaning of
what is known ordinarily as the doctrine of “colourable
legislation”.
It may be made clear at the outset that the doctrine of
colourable legislation does not involve any question of
bona fides or mala fides on the part of the legislature.
The whole doctrine resolves itself into the question of
competency of a particular legislature to enact a
particular law. If the legislature is competent to pass a
particular law, the motives which impelled it to act are
really irrelevant. On the other hand, if the legislature
lacks competency, the question of motive does not arise
at all. Whether a statute is constitutional or not is thus
always a question of power [ Vide Cooley's
Constitutional Limitations, Vol 1 p 379] . A distinction,
however, exists between a legislature which is legally
omnipotent like the British Parliament and the laws
promulgated by it which could not be challenged on the
ground of incompetence, and a legislature which enjoys
only a limited or a qualified jurisdiction. If the
Constitution of a State distributes the legislative powers
amongst different bodies, which have to act within their
respective spheres marked out by specific legislative
entries, or if there are limitations on the legislative
120
authority in the shape of fundamental rights, questions
do arise as to whether the legislature in a particular case
has or has not, in respect to the subject-matter of the
statute or in the method of enacting it, transgressed the
limits of its constitutional powers.”
Likewise, a 7-Judge Bench in STO v. Ajit Mills Ltd. (1977) 4 SCC
98, has also clearly stated as follows:
“16. Before scanning the decisions to discover the
principle laid down therein, we may dispose of the
contention which has appealed to the High Court based
on “colourable device'. Certainly, this is a malignant
expression and when flung with fatal effect at a
representative instrumentality like the legislature,
deserves serious reflection. If, forgetting comity, the
Legislative wing charges the Judicature wing with
“colourable” judgments, it will be intolerably subversive
of the rule of law. Therefore, we too must restrain
ourselves from making this charge except in absolutely
plain cases and pause to understand the import of the
doctrine of colourable exercise of public power,
especially legislative power. In this branch of law,
“colourable” is not “tainted with bad faith or evil motive' ;
it is not pejorative or crooked. Conceptually,
“colourability” is bound up with incompetency. “Colour',
according to Black's Legal Dictionary, is “an appearance,
semblance or simulacrum, as distinguished from that
which is real ... a deceptive appearance ... a lack of
reality'. A thing is colourable which is, in appearance
only and not in reality, what it purports to be. In Indian
terms, it is maya. In the jurisprudence of power,
colourable exercise of or fraud on legislative power or,
more frightfully, fraud on the Constitution, are
expressions which merely mean that the legislature is
incompetent to enact a particular law although the label
of competency is stuck on it, and then it is colourable
legislation. It is very important to notice that if the
legislature is competent to pass the particular law, the
motives which impel it to pass the law are really
irrelevant. To put it more relevantly to the case on hand,
if a legislation, apparently enacted under one Entry in
121
the List, falls in plain truth and fact, within the content,
not of that Entry but of one assigned to another
legislature, it can be struck down as colourable even if
the motive were most commendable. In other words, the
letter of the law notwithstanding, what is the pith and
substance of the Act? Does it fall within any entry
assigned to that legislature in pith and substance, or as
covered by the ancillary powers implied in that Entry?
Can the legislation be read down reasonably to bring it
within the legislature's constitutional powers? If these
questions can be answered affirmatively, the law is valid.
Malice or motive is beside the point, and it is not
permissible to suggest parliamentary incompetence on
the score of mala fides.”
It is clear therefore for all these reasons that Sections 4 and 6 of the
Amending Act of 2019 cannot be struck down on this score.
74. So far as Section 4 is concerned, it is clear that the original
timelines in which a CIRP must be completed have now been
extended to 330 days, which is 60 days more than 180 plus 90 days
(which is equal to 270 days). But this 330-day period includes the
time taken in legal proceedings in relation to such resolution process
of the corporate debtor. This provision is to get over what is stated in
the judgment in ArcelorMittal India (supra) at paragraph 86, that the
time taken in legal proceedings in relation to the corporate resolution
process must be excluded from the timeline mentioned in Section 12.
Secondly, the third proviso added to the Section also mandates that
where the period of 330 days is over on the date of commencement
of the Amending Act of 2019, a further grace period of 90 days from
122
such date is given, within which such process shall either be
completed or the corporate debtor be sent into liquidation.
75. The raison d’être for this provision comes from the experience
that has been plaguing the legislature ever since SICA was
promulgated. The problems of SICA and other successor enactments
was stated in graphic detail in Madras Petrochem Limited v. BIFR
(2016) 4 SCC 1 at paragraphs 17 to 23. It will be seen from these
paragraphs that though SICA, the Recovery of Debts Act of 1993 and
the Securitisation and Reconstruction of Financial Assets and
Enforcement of Securities Interest Act, 2002 (hereinafter referred to
as “SARFAESI Act”) all provided for expeditious determination and
timely detection of sickness in industrial companies, yet, legal
proceedings under the same dragged on for years as a result of
which all these statutory measures proved to be abject failures in
resolving stressed assets. It is for this reason that the BLRC Report
of 2015 stated:
“In limited circumstances, if 75 % of the creditors
committee decides that the complexity of a case requires
more time for a resolution plan to be finalised, a onetime
extension of the 180 day period for up to 90 days is
possible with the prior approval of the adjudicator. This is
starkly different from certain present arrangements which
permit the debtor / promoter to seek extensions beyond
any limit.
This approach has many strengths:
123
• Asset stripping by promoters is controlled after and before
default.
 • The promoters can make a proposal that involves buying
back the company for a certain price, alongside a certain
debt restructuring.
• Others in the economy can make proposals to buy the
company at a certain price, alongside a certain debt
restructuring.
• All parties knows that if no deal is struck within the
stipulated period, the company will go into liquidation. This
will help avoid delaying tactics. The inability of promoters to
steal from the company, owing to the supervision of the IP,
also helps reduce the incentive to have a slow lingering
death.
 • The role of the adjudicator will be on process issues: To
ensure that all financial creditors were indeed on the
creditors committee, and that 75% of the creditors do
indeed support the resolution plan.
xxx xxx xxx
Speed is of essence
Speed is of essence for the working of the bankruptcy
code, for two reasons. First, while the „calm period can ‟
help keep an organisation afloat, without the full clarity of
ownership and control, significant decisions cannot be
made. Without effective leadership, the firm will tend to
atrophy and fail. The longer the delay, the more likely it is
that liquidation will be the only answer. Second, the
liquidation value tends to go down with time as many
assets suffer from a high economic rate of depreciation.
From the viewpoint of creditors, a good realisation can
generally be obtained if the firm is sold as a going concern.
Hence, when delays induce liquidation, there is value
destruction. Further, even in liquidation, the realisation is
lower when there are delays. Hence, delays cause value
destruction. Thus, achieving a high recovery rate is
primarily about identifying and combating the sources of
delay. This same idea is found in FSLRC’s treatment of the
failure of financial firms. The most important objective in
124
designing a legal framework for dealing with firm failure is
the need for speed.
Identifying and addressing the sources of delay
Before the IRP can commence, all parties need an
accurate and undisputed set of facts about existing credit,
collateral that has been pledged, etc. Under the present
arrangements, considerable time can be lost before all
parties obtain this information. Disputes about these facts
can take up years to resolve in court. The objective of an
IRP that is completed in no more than 180 days can be lost
owing to these problems.
Hence, the Committee envisions a competitive industry of
„information utilities who hold an array of information ‟
about all firms at all times. When the IRP commences,
within less than a day, undisputed and complete
information would become available to all persons involved
in the IRP and thus address this source of delay.
The second important source of delays lies in the
adjudicatory mechanisms. In order to address this, the
Committee recommends that the National Company Law
Tribunals (for corporate debtors) and Debt Recovery
Tribunals (for individuals and partnership firms) be provided
with all the necessary resources to help them in realising
the objectives of the Code.
xxx xxx xxx
Conclusion
The failure of some business plans is integral to the
process of the market economy. When business failure
takes place, the best outcome for society is to have a rapid
renegotiation between the financiers, to finance the going
concern using a new arrangement of liabilities and with a
new management team. If this cannot be done, the best
outcome for society is a rapid liquidation. When such
arrangements can be put into place, the market process of
creative destruction will work smoothly, with greater
competitive vigor and greater competition.”
125
76. The speech of the Hon’ble Minister on the floor of the House of
the Rajya Sabha also reflected the fact that with the passage of time
the original intent of quick resolution of stressed assets is getting
diluted. It is therefore essential to have time-bound decisions to
reinstate this legislative intent. It was also pointed out on the floor of
the House that the experience in the working of the Code has not
been encouraging. The Minister in her speech to the Rajya Sabha
gives the following facts and figures:
“Now, regarding the Corporate Insolvency Resolution
Process (CIRP), under the Code, I want to give you data
again as of 30th June, 2019. First, I will talk about the
status of CIRPs. Number of admitted cases is 2162;
number of cases closed on appeal, which I read out about,
is 174; number of cases closed by withdrawal under
Section 12A, is 101, I have given you a slightly later data;
number of cases closed by resolution is 120; closed by
liquidation, 475; and ongoing CIRPs are 1292. So, now, I
would like to mention the number of days of waiting. I
would like to mention here the details of the ongoing
CIRPs, along with the timelines. Ongoing CIRPs are 1,292,
the figure just now I gave you. Over 330 days, 335 cases;
over 270 days, 445 cases; over 180 days and less than
270 days, 221 cases; over 90 days but less than 180 days,
349 cases; less than 90 days, 277 cases. The number of
days' pending includes time, if any, excluded by the
tribunals. So, that gives you a picture on what is the kind of
wait and, therefore, why we want to bring the Amendments
for this speeding up.”
Mrs. Madhvi Divan also pointed out that the Hon’ble Minister’s
speech had also adverted to the strengthening of the NCLT as
follows:
126
“In view of the increasing number of cases, the
Government has increased the number of benches of
NCLT from 10 to 15, during just the last one year. In one
year, we have increased it from 10 to 15. The number of
members has also been increased in a phased manner.
Recently, 26 new members have joined bringing the total
number of members to 52. Sir, more than one court has
been operationalised in the benches where a large number
of cases are pending, such as, in Mumbai, Delhi, Chennai
and Kolkata. The projects like e-governance and e-courts
have also been implemented for faster and speedier
disposal of the cases.”
77. Shri Sibal vehemently objected to any reliance on the speech of
the Minister and cited K.P. Varghese v. ITO (1982) 1 SCR 629 and
K.S. Paripoornan v. State of Kerala (1994) 5 SCC 593. In Varghese
(supra) this Court held, at page 645, as follows:
“…Now it is true that the speeches made by the Members
of the Legislature on the floor of the House when a Bill for
enacting a statutory provision is being debated are
inadmissible for the purpose of interpreting the statutory
provision but the speech made by the Mover of the Bill
explaining the reason for the introduction of the Bill can
certainly be referred to for the purpose of ascertaining the
mischief sought to be remedied by the legislation and the
object and purpose for which the legislation is enacted.
This is in accord with the recent trend in juristic thought not
only in western countries but also in India that
interpretation of a statute being an exercise in the
ascertainment of meaning, everything which is logically
relevant should be admissible. In fact there are at least
three decisions of this Court, one in Loka Shikshana
Trust v. CIT [(1976) 1 SCC 254 : 1976 SCC (Tax) 14 : 101
ITR 234 : 1976 LR 1] , the other in Indian Chamber of
Commerce v. Commissioner of Income Tax [(1976) 1 SCC
324 : 1976 SCC (Tax) 41 : 101 ITR 796 : 1976 Tax LR 210]
and the third in Additional Commissioner of Income
Tax v. Surat Art Silk Cloth Manufacturers'
Association [(1980) 2 SCC 31 : 1980 SCC (Tax) 170 : 121
127
ITR 1] where the speech made by the Finance Minister
while introducing the exclusionary clause in Section 2,
clause (15) of the Act was relied upon by the Court for the
purpose of ascertaining what was the reason for
introducing that clause.”
In Paripoornan (supra), the Court held as follows:
“77. In support of the construction placed on Section 23(1-
A) of the principal Act and Section 30(1) of the amending
Act in Zora Singh [(1992) 1 SCC 673] the learned counsel
for the claimants have referred to the Statement of Objects
and Reasons appended to the Bill in 1982 as well as the
Bill of 1984 and have submitted that the said Statement of
Objects and Reasons show that the object underlying the
enactment of Section 23(1-A) was to remove the hardship
to the affected parties on account of pendency of
acquisition proceedings for a long time which renders
unrealistic the amounts of compensation offered to them.
Our attention has also been invited to the speeches made
by members at the time when the Bill was considered and
was adopted by Parliament. It has been urged that a
construction which advances the said object must be
adopted. We are unable to accept this contention. As
regards the Statement of Objects and Reasons appended
to the Bill the law is well settled that the same cannot be
used except for the limited purpose of understanding the
background and the state of affairs leading to the
legislation but it cannot be used as an aid to the
construction of the statute. (See Aswini Kumar
Ghosh v. Arabinda Bose [1953 SCR 1, 28 : AIR 1952 SC
369] ; State of W.B. v. Subodh Gopal Bose [1954 SCR 587,
628 : AIR 1954 SC 92] per Das, J.; State of W.B. v. Union
of India [(1964) 1 SCR 371, 383 : AIR 1963 SC 1241] .)
Similarly, with regard to speeches made by the members in
the House at the time of consideration of the Bill it has
been held that they are not admissible as extrinsic aids to
the interpretation of the statutory provisions though the
speech of the mover of the Bill may be referred to for the
purpose of finding out the object intended to be achieved
by the Bill. (See State of Travancore-Cochin v. Bombay Co.
Ltd. [1952 SCR 1112 : AIR 1952 SC 366] and Aswini
Kumar v. Arabinda Bose [1953 SCR 1, 28 : AIR 1952 SC
128
369] .) On a perusal of the Bills of 1982 and 1984 we find
that they did not contain the provisions found in Section
23(1-A) of the principal Act and Section 30(1) of the
amending Act. These provisions were inserted when the
1984 Bill was under consideration before Parliament. The
Statement of Objects and Reasons does not, therefore,
throw any light on the circumstances in which these
provisions were introduced.”
As the speech of the Hon’ble Minister on the floor of the House only
indicates the object for which the amendment was made and as it
contains certain data which it is useful to advert to, we take aid from
the speech not in order to construe the amended Section 12, but only
in order to explain why the Amending Act of 2019 was brought about.
78. Given the fact that timely resolution of stressed assets is a key
factor in the successful working of the Code, the only real argument
against the amendment is that the time taken in legal proceedings
cannot ever be put against the parties before the NCLT and NCLAT
based upon a Latin maxim which sub-serves the cause of justice
namely, actus curiae neminem gravabit.
79. In Atma Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC 284,
this Court applied the maxim to time taken in legal proceedings under
the Haryana Urban (Control of Rent and Eviction) Act, 1973, holding:
“8. It is well-settled that no man should suffer because of
the fault of the court or delay in the procedure. Broom has
stated the maxim “actus curiae neminem gravabit” — an
act of court shall prejudice no man. Therefore, having
regard to the time normally consumed for adjudication, the
129
ten years' exemption or holiday from the application of the
Rent Act would become illusory, if the suit has to be filed
within that time and be disposed of finally. It is common
knowledge that unless a suit is instituted soon after the
date of letting it would never be disposed of within ten
years and even then within that time it may not be disposed
of. That will make the ten years holiday from the Rent Act
illusory and provide no incentive to the landlords to build
new houses to solve problem of shortages of houses. The
purpose of legislation would thus be defeated. Purposive
interpretation in a social amelioration legislation is an
imperative irrespective of anything else.”
Likewise, in Sarah Mathew v. Institute of Cardio Vascular
Diseases, (2014) 2 SCC 62, this Court held that for the purpose of
computing limitation under Section 468 of the Code of Criminal
Procedure, 1973 the relevant date is the date of filing of the complaint
and not the date on which the Magistrate takes cognizance, applying
the aforesaid maxim as follows:
“39. As we have already noted in reaching this conclusion,
light can be drawn from legal maxims. Legal maxims are
referred to in Bharat Kale [Bharat Damodar Kale v. State of
A.P., (2003) 8 SCC 559 : 2004 SCC (Cri) 39] , Japani
Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007)
7 SCC 394 : (2007) 3 SCC (Cri) 388] and Vanka
Radhamanohari [Vanka Radhamanohari v. Vanka Venkata
Reddy, (1993) 3 SCC 4 : 1993 SCC (Cri) 571]. The object
of the criminal law is to punish perpetrators of crime. This is
in tune with the well-known legal maxim nullum tempus aut
locus occurrit regi, which means that a crime never dies. At
the same time, it is also the policy of law to assist the
vigilant and not the sleepy. This is expressed in the Latin
maxim vigilantibus et non dormientibus, jura subveniunt.
Chapter XXXVI CrPC which provides limitation period for
certain types of offences for which lesser sentence is
provided draws support from this maxim. But, even certain
offences such as Section 384 or 465 IPC, which have
130
lesser punishment may have serious social consequences.
The provision is, therefore, made for condonation of delay.
Treating date of filing of complaint or date of initiation of
proceedings as the relevant date for computing limitation
under Section 468 of the Code is supported by the legal
maxim actus curiae neminem gravabit which means that
the act of court shall prejudice no man. It bears repetition to
state that the court's inaction in taking cognizance i.e.
court's inaction in applying mind to the suspected offence
should not be allowed to cause prejudice to a diligent
complainant. Chapter XXXVI thus presents the interplay of
these three legal maxims. The provisions of this Chapter,
however, are not interpreted solely on the basis of these
maxims. They only serve as guiding principles.”
Both these judgments have been followed in Neeraj Kumar Sainy v.
State of Uttar Pradesh (2017) 14 SCC 136 at paragraphs 29 and 32.
Given the fact that the time taken in legal proceedings cannot
possibly harm a litigant if the Tribunal itself cannot take up the
litigant’s case within the requisite period for no fault of the litigant, a
provision which mandatorily requires the CIRP to end by a certain
date - without any exception thereto - may well be an excessive
interference with a litigant’s fundamental right to non-arbitrary
treatment under Article 14 and an excessive, arbitrary and therefore
unreasonable restriction on a litigant’s fundamental right to carry on
business under Article 19(1)(g) of the Constitution of India. This being
the case, we would ordinarily have struck down the provision in its
entirety. However, that would then throw the baby out with the bath
water, inasmuch as the time taken in legal proceedings is certainly an
131
important factor which causes delay, and which has made previous
statutory experiments fail as we have seen from Madras Petrochem
(supra). Thus, while leaving the provision otherwise intact, we strike
down the word “mandatorily” as being manifestly arbitrary under
Article 14 of the Constitution of India and as being an excessive and
unreasonable restriction on the litigant’s right to carry on business
under Article 19(1)(g) of the Constitution. The effect of this declaration
is that ordinarily the time taken in relation to the corporate resolution
process of the corporate debtor must be completed within the outer
limit of 330 days from the insolvency commencement date, including
extensions and the time taken in legal proceedings. However, on the
facts of a given case, if it can be shown to the Adjudicating Authority
and/or Appellate Tribunal under the Code that only a short period is
left for completion of the insolvency resolution process beyond 330
days, and that it would be in the interest of all stakeholders that the
corporate debtor be put back on its feet instead of being sent into
liquidation and that the time taken in legal proceedings is largely due
to factors owing to which the fault cannot be ascribed to the litigants
before the Adjudicating Authority and/or Appellate Tribunal, the delay
or a large part thereof being attributable to the tardy process of the
Adjudicating Authority and/or the Appellate Tribunal itself, it may be
open in such cases for the Adjudicating Authority and/or Appellate
132
Tribunal to extend time beyond 330 days. Likewise, even under the
newly added proviso to Section 12, if by reason of all the aforesaid
factors the grace period of 90 days from the date of commencement
of the Amending Act of 2019 is exceeded, there again a discretion
can be exercised by the Adjudicating Authority and/or Appellate
Tribunal to further extend time keeping the aforesaid parameters in
mind. It is only in such exceptional cases that time can be extended,
the general rule being that 330 days is the outer limit within which
resolution of the stressed assets of the corporate debtor must take
place beyond which the corporate debtor is to be driven into
liquidation.
80. When it comes to the validity of the substitution of Section 30(2)
(b) by Section 6 of the Amending Act of 2019, it is clear that the
substituted Section 30(2)(b) gives operational creditors something
more than was given earlier as it is the higher of the figures
mentioned in sub-clauses (i) and (ii) of sub-clause (b) that is now to
be paid as a minimum amount to operational creditors. The same
goes for the latter part of sub-clause (b) which refers to dissentient
financial creditors. Mrs. Madhavi Divan is correct in her argument that
Section 30(2)(b) is in fact a beneficial provision in favour of
operational creditors and dissentient financial creditors as they are
133
now to be paid a certain minimum amount, the minimum in the case
of operational creditors being the higher of the two figures calculated
under sub-clauses (i) and (ii) of clause (b), and the minimum in the
case of dissentient financial creditor being a minimum amount that
was not earlier payable. As a matter of fact, pre-amendment, secured
financial creditors may cramdown unsecured financial creditors who
are dissentient, the majority vote of 66% voting to give them nothing
or next to nothing for their dues. In the earlier regime it may have
been possible to have done this but after the amendment such
financial creditors are now to be paid the minimum amount mentioned
in sub-section (2). Mrs. Madhavi Divan is also correct in stating that
the order of priority of payment of creditors mentioned in Section 53 is
not engrafted in sub-section (2)(b) as amended. Section 53 is only
referred to in order that a certain minimum figure be paid to different
classes of operational and financial creditors. It is only for this
purpose that Section 53(1) is to be looked at as it is clear that it is the
commercial wisdom of the Committee of Creditors that is free to
determine what amounts be paid to different classes and sub-classes
of creditors in accordance with the provisions of the Code and the
Regulations made thereunder.
134
81. As has been held in this judgment, it is clear that Explanation 1
has only been inserted in order that the Adjudicating Authority and the
Appellate Tribunal cannot enter into the merits of a business decision
of the requisite majority of the Committee of Creditors. As has also
been held in this judgment, there is no residual equity jurisdiction in
the Adjudicating Authority or the Appellate Tribunal to interfere in the
merits of a business decision taken by the requisite majority of the
Committee of Creditors, provided that it is otherwise in conformity
with the provisions of the Code and the Regulations, as has been laid
down by this judgment.
82. Equally, Explanation 2 applies the substituted Section to
pending proceedings either at the level of the Adjudicating Authority
or the Appellate Authority or in a Writ or Civil Court. As has been held
in Swiss Ribbons (supra) and ArcelorMittal India (supra) (see
paragraph 97 of Swiss Ribbons (supra) and paragraph 82, 84 of
ArcelorMittal India (supra)), no vested right inheres in any resolution
applicant to have its plan approved under the Code. Also, the Federal
Court in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri
AIR 1941 FC 5 and later, this Court in Shiv Shakti Coop. Housing
Society, Nagpur v. Swaraj Developers & Ors. (2003) 6 SCC 659 (at
paragraphs 16 and 17) have held that an appellate proceeding is a
135
continuation of an original proceeding. This being so, a change in law
can always be applied to an original or appellate proceeding. For this
reason also, Explanation 2 is constitutionally valid, not having any
retrospective operation so as to impair vested rights.
83. The challenge to sub-clause (b) of Section 6 of the Amending
Act of 2019, again goes to the flexibility that the Code gives to the
Committee of Creditors to approve or not to approve a resolution plan
and which may take into account different classes of creditors as is
mentioned in Section 53, and different priorities and values of security
interests of a secured creditor. This flexibility is referred to in the
BLRC report, 2015 (see paragraph 33 of this judgment). Also, the
discretion given to the Committee of Creditors by the word “may”
again makes it clear that this is only a guideline which is set out by
this sub-section which may be applied by the Committee of Creditors
in arriving at a business decision as to acceptance or rejection of a
resolution plan. For all these reasons, therefore, it is difficult to hold
that any of these provisions is constitutionally infirm.
The resolution plan of ArcelorMittal as amended and objections
thereto
84. The resolution plan submitted by ArcelorMittal on 02.04.2018
proposed an upfront payment of INR 35,000 crores towards
136
resolution of the debt of INR 49,213 crores of financial creditors. This
was buttressed by a letter of commitment from Credit Agricole
Corporate and Investment Bank. From this upfront cash recovery,
unsecured financial creditors were to be paid only an aggregate
amount of 5% of their admitted claims. Apart from this, INR 8,000
crores of upfront fresh capital infusion for improving operations and
enhancing revival prospects of the corporate debtor was also
proposed. So far as operational creditors were concerned, it was
proposed that workmen and employees were to be paid INR 18
crores in full against their admitted claims, and out of other
operational creditors, those small trade creditors defined as “having
admitted claims of less than INR 1 crore” were to be paid in full, as
opposed to trade and government creditors of over INR 1 crore, who
were to be paid aggregate amount INR 196 crores. Other operational
creditors were to be given nothing, liquidation value being payable to
operational creditors as a class being in any case nil (INR 3339
crores were the aggregate admitted claims of all operational creditors
as a class). Under the caption “Treatment of various stake holders”
the plan provided as follows:-
“VIII. Treatment of Various Stakeholders”
xxx xxx xxx
137
Stakeholder Proposed Treatment
Financial
Creditors
As per the Liquidation Value of
the Corporate Debtor, the
Secured Financial Creditors
would realize amounts which
were lower than the current
outstandings on a cumulative
basis. However, the
Resolution Applicant
recognizes the sacrifices
already made by the Financial
Creditors till date and the fact
that debt restructuring
attempts by the Financial
Creditors have failed in the
past. The Resolution Applicant
is proposing to pay the
Secured Financial Creditors,
the amounts stated under
Section V which is significantly
higher than the reconvenes
that the Secured Financial
Creditors as a class would
realize in case of liquidation.
The payments proposed to be
made by the Resolution
Applicant to the unsecured
Financial Creditors is also
higher than the recoveries that
the unsecured Financial
Creditors as a class would
realize in case of liquidation,
since the Liquidation Value
realizable by unsecured
Financial Creditors is nil.
The Resolution Applicant has
empowered the Committee of
Creditors to decide the
manner in which the financial
138
package being offered by the
Resolution Applicant to the
Financial Creditors will be
distributed to the Secured
Financial Creditors. All such
allocations to the Financial
Creditors will be binding on all
stakeholders.
The unsecured Financial
Creditors (including those
Secured Financial Creditors
who may have claims
admitted against unsecured
instruments) i.e. Standard
Chartered Bank. The Bank of
New York Mellon, London
Branch, AXIS bank, ICICI
Bank. Bank of Baroda, SBI
Rupee Notes and Individual
Rupee Notes to Melwani
Gopal Thrumal and /or
Melwani Vinod, Mr. Arvinlal N
Shah & Mrs. Indumati A Shah,
Mr. jiwat k Dansanghani and
Mrs. Neetu J Dhansanghani
and Nathu Ram Verma, who
have Admitted claims as of 28
February 2018 (based on
document 2.5.8 uploaded on
VDR on 6 March 2018 which
provides Breakup of Secured
and Unsecured financial
Creditors), shall be paid an
aggregate amount of 5% of
their Admitted Claims.
Furthermore, in accordance
with the RFP, it is clarified
that:
139
a) any surplus cash
being the positive
difference between
actual working capital of
the Corporate Debtor as
on Plan Approval Date
and normalized working
capital as at 31
December 2017, shall
be added to upfront
cash recovery as a
closing adjustment
under the Resolution
Plan; and
b) the EBITDA
generated by the
Corporate Debtor
between the Plan
Approval Date and the
date on which the
Financial Creditors are
paid the up-front cash
amount shall be
available to the
Financial Creditors over
and above the upfront
cash recovery under the
Resolution Plan.
However, notwithstanding
anything stated herein, a
Dissenting Financial Creditor
will be entitled to only receive
Liquidation Value realizable by
such Financial Creditor in
case of liquidation of the
Corporate Debtor, which shall
be paid out of the upfront cash
recovery amount being
offered.
140
Operational
Creditors (other
than Workmen,
Employees and
Governmental
Operational
Creditors)
The Resolution Applicant
recognizes the role that the
various Trade Creditors have
played in connection with the
business of the Corporate
Debtor. Whilst Operational
Creditors as a class of
Creditors would receive nil
returns on liquidation of the
Corporate Debtor, the
Resolution Applicant has
agreed to settle part of the
Admitted Claims to the extent
set out in Section V above.
Without prejudice to the
above, the Resolution
Applicant is desirous of setting
aside amounts under the
financial package to settle at
least part of the Claims of the
small Trade Creditors. This
class of Trade Creditors are
being provided such payments
since the Resolution applicant
understands that these
Persons typically form a part
of small scale/medium sector
enterprises, which enterprises
play a key role in the Indian
economy and given their scale
of operations may not be in a
position to weather
macroeconomic and financial
shocks.
The identified Trade Creditors
are being paid out on the
assumption that they will
continue their arrangements
with the Corporate Debtor and
shall in no manner commit any
acts or omissions which would
adversely impact the business
141
of the Corporate Debtor.
Acceptance of payments by
the Trade Creditors shall be
considered as an acceptance
of the above condition.
The Resolution Applicant
recognizes and understands
that additional payment to
certain Operational Creditors
may have to be made as a
part of revitalising the
business and is prepared to
do so, on a case by case
basis.
Governmental
Operational
Creditors
The Resolution Applicant aims
at establishing a good working
relationship between the
Governmental Authorities and
the Corporate Debtor and will
cause the Corporate Debtor to
duly pay the statutory dues
that will be incurred by the
Corporate Debtor going
forward from the Plan
Approval Date in a timely
manner. The revival of the
Corporate Debtor will also
enhance the tax collection by
the Governmental Authorities
in the geographies where the
Corporate Debtor operates.
85. On 22.10.2018, various changes were made in the original
resolution plan as follows:
“The representatives of AM India of AM India thanked the
RP. Thereafter, they presented a brief summary of the
revisions made to the financial proposal. They informed
that as per the directives of the CoC, AM India had
deliberated and negotiated with the Sub-Committee.
142
Thereafter, the representative highlighted certain key
revisions made to the resolution plan, which inter alia
included revisions in relation to (a) upfront cash recovery
available to secured and unsecured financial creditors of
ESIL; (b) upfront fresh capital infusion; (c) process of
closing adjustment, which included provision of audit. He
further added that they had not provided how the upfront
cash would be distributed and the same has been left at
the discretion of the CoC. He further added that the
business plan has not undergone any substantial changes
and the negotiations were largely around the financial
proposal and that AM India is committed to implement the
plan, as agreed. Thereafter, the representative of AM India
also deliberated with the members of the CoC regarding
the revised financial proposal and responded to the queries
raised in relation thereto.”
It was stated that the value and quality of security should be the basis
on which proceeds should be distributed by most of the secured
financial creditors. This amended resolution plan was approved by a
majority of 92.24% of financial creditors. The sharing ratio between
secured financial creditors having charge on project assets of the
corporate debtor was 99.86% as opposed to 0.14%, so far as
Standard Chartered Bank was concerned, which only had a charge
on the pledge of shares of ESOL, being an offshore subsidiary of the
corporate debtor. The upfront payment to secured financial creditors
on the effective date would now be INR 41,909.29 crores and INR
60.71 crores to Standard Chartered Bank. It was pointed out that this
was based on the worth of those shares as security, being only INR
143
24.86 crores. The reasons given for acceptance of this amended
resolution plan was stated as follows:
“By majority consensus of COC (except Standard Chartered
Bank and SREI), it was agreed that fairness of distribution
would be reflected only if distribution be made based on
underlying security value and quality of security. Based on a
comparison of the two suggested options based on fair
value and liquidation value, in the interest of all stake
holders and with the objective of the Code it is proposed to
the COC to accept the sharing ratio as per the Liquidation
Valuation Report and also to Secured Financial Creditors
having Charge on Project Asset of ESIL for taking a sacrifice
of Rs.37.76 Crores (for adopting the sharing ratio as per the
Liquidation Valuation Report instead of fair value) which
shall be allocated to Secured Financial Creditors having
Charge on Pledge of Shares of ESOL.
While allocation of the Resolution Amount it is pertinent to
note that the Committee of creditors has the widest
discretion to determine the terms of the resolution plan.
A. At the outset it is important to be noted that the
legislature in their wisdom under the provisions of the
Insolvency and Bankruptcy Code, 2016 (Code) have left
the decision-making in respect of commercial matters
completely in the domain of the Committee of Creditors
(COC). In fact even the Bankruptcy Law Reforms
Committee report (which formed the basis for the
enactment of the Code) specifically notes the deliberate
scheme of the Code, where the law does not prescribe any
particular manner of insolvency resolution and leaves this
commercial decision making process to the COC without
the interference of the legislature as well as judiciary.
B. Further, pro rate distribution cannot be the only method
of distribution of assets, as it would lead to the disastrous
consequences where the creditors would lose their
freedom to restructure the debt as they deem fit. This an
important commercial decision which is required to be
made by the Code and a strait jacket formula for all cases
would result in dilution of the provisions of the Code and
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would incentivize all secured creditors to liquidate the
company rather than opt for resolution. It was noted that
generally all secured financial creditors are prudent entities
which grant loans after exercising due-diligence and are
presumed to be able to evaluate their interest and risks
sufficiently. Moreover it may negatively impact the credit
market and discourage banks and other financial creditors
from granting large project loans which are more often than
not granted against property or other valuable collateral.
C. The Report of the Insolvency Law Committee provides
valuable insights on the principles governing inter-creditor
agreements and their relevance to distribution
arrangements. In practice, subordination agreements interse creditors were respected in practice. This was also the
stated position in insolvency resolution proceedings other
jurisdiction and in other developed countries.
D. The Hon’ble National Company Law Appellate Tribunal
has held that the COC has the discretion to approve any
resolution plan and its decision to approve the same
cannot be interfered with by the Adjudicating Authority or
the Appellate Authority, except for in terms of Section 31(1)
to examine compliance of Section 30(2) read with relevant
regulations. (See Kannan Tiruvengandram Vs. M.K. Shah
Exports Ltd. & Ors. in and Darshak Enterprise Pvt. Ltd. and
Ors. v. Chhaparia Industries Pvt. Ltd. and Ors.
E. The Code specifically provides the COC with the power
under section 30(4) of the Code, to approve a resolution
with requisite majority as set out thereunder. It is an
accepted position in law, and as enunciated in various
pronouncements of the Supreme Court of India that where
a power is conferred or a duty is imposed by a statute, and
there is nothing expressly inhibiting the exercise of the
power or the performance of the duty by any limitations or
restrictions it is reasonable to hold that it carries with it all
power of doing all such acts or employing all such means
as are reasonably necessary for its execution. The below
mentioned provisions of the Code and the Insolvency and
Bankruptcy Board of India (Insolvency Resolution Process
145
for Corporate Persons). Regulation 2016 (CIR Regulations)
set out the powers of the COC in this regard:
Section 31 of the Code (Approval of Resolution Plan):
“(1) If the Adjudicating Authority is satisfied that the
resolution plan as approved by the committee of creditors
under sub-section (4) of section 30 meets the requirements
as referred to in sub-section (2) of section 30, it shall by
order approve the resolution plan which shall be binding on
the corporate debtor and its employees, members,
creditors, guarantors and other stakeholders involved in the
resolution plan.
Regulation 39 of the CIR Regulations, 2016;
“(2) The resolution professional shall present all resolution
plans that meet the requirements of the Code and these
Regulations to the Committee for its consideration.
(3) The committee may approve any resolution plan with
such modifications as it deems fit
xxx xxx xxx
K. It is a recognized principle of insolvency law that creditor
rights and ranking of priority claims existing before
commencement of insolvency must be recognized and
respected in the insolvency proceedings. Recognition of
such ranking of priorities of existing and postcommencement creditor claims provide predictability to
lenders and ensure consistent application of the rules,
create confidence in the proceedings and enable
participants to adopt appropriate measures to manage risk.
At macro level, it helps create certainty in the market and
facilitate the provision of credit, in particular with respect to
the rights and priorities of secured creditors. It is also well
established that best practices require that priority to claims
that are not based on commercial bargains should be
minimalized. This principle is unequivocally articulated in
the United Nations Commission on International Trade Law
(UNCITRAL) Legislative Guide on Insolvency law
(hereinafter, the “UNCITRAL Guide”) in the chapter that
146
recommends the policy and legislative design of the “key
objectives and structure of an effective and efficient
insolvency law”
L. Further, in recognition of the principle that creditor rights
and ranking of priority claims existing before
commencement of insolvency must be recognised and
expected in the insolvency proceedings. To protect/respect
the creditor rights and ranking of priority claims, the IBC
does not in any manner impose any prescription,
mandatory or otherwise on the resolution applicant that
would be disruptive of the creditor rights and priority claims
of the secured creditors as on insolvency commencement
date. If this rule was not to be recognised, it will lead to a
free-for-all situation, no short of chaos, as any rights on
differential security interest would then be ignored.
M. Therefore in conclusion, since the Code provides the
COC with the power to approve a resolution for the
Corporate Debtor, the manner in which such resolution
shall be executed including but not limited to the decision
as to the methodology of distribution or the amount a
money to be paid to individual stakeholders would also be
a decision which the COC would be permitted to take,
especially in the absence of any express provision in the
Code prohibiting such a decision by the COC. As long as
such decisions are not contrary to the provisions of the
Code.”
86. The final resolution plan as approved on 23.10.2018 was as
follows - in the place of INR 35,000 crores to be paid on the effective
date as an upfront amount, INR 39,500 crores and INR 2500 crores,
aggregating INR 42,000 crores was to be paid. The resolution
applicant agreed that the Committee of Creditors will decide the
manner in which the financial package being offered by the resolution
applicant to financial creditors will be distributed to secured financial
147
creditors. The payment of INR 17.4 crore was to be made to
unsecured financial creditors with a claim amount of more than INR
10 lakhs, and INR 30.55 lakhs to such creditors with a claim amount
of less than INR 10 lakhs, with the fresh capital infusion for improving
operations and enhancing revival prospects of the corporate debtor
remaining at INR 8,000 crores. So far as operational creditors were
concerned, there was no change made.
87. At the 22nd meeting of the Committee of Creditors dated
27.03.2019, the NCLT order of 08.03.2019 was discussed and it was
felt that INR 1,000 crores extra be paid for operational creditors over
and above INR 1 crore each, as follows:
“The representative of EARC mentioned that without
prejudice to the appeals, a lump sum amount may be setaside and put to vote as they are not averse to examining
it. The representative of SBI concurred with the views of
the representative of EARC. He further mentioned that
CoC as well as SCB has challenged the NCLT Order. SBI
proposed to set aside a capped amount of INR 1,000 Crore
for operational creditors (without prejudice to their right to
appeal). He requested that a resolution to that effect may
be voted upon.
The RP requested the SBI representative to clarify if the
proposed amount of INR 1,000 Crore would be over and
above the INR 196 Crore which is already included in the
Resolution Plan for operational creditors. The SBI
representative confirmed that the same would be over and
above the current proposal, however this additional amount
will be capped to INR 1,000 crores.”
148
Under the caption “discussion on the suggestions of the Hon’ble
NCLT in relation to distribution of amounts proposed to be paid to
financial creditors”, the minutes of the meeting reflect that the
Committee of Creditors had sought for and obtained the opinion of
retired Justice B.N. Srikrishna. This opinion dated 23.03.2019 stated
as follows:
“In view of this peculiar situation, where a financial creditor
has advanced money to the corporate debtor assessing the
commercial risk and covers his risk by a charge on the
assets of the corporate debtor, there can be no question of
his being entitled to the liquidation value or any other fixed
value towards his debt. In any event, the plan formulated
by the resolution applicant, has to be placed before the
COC for its final approval. It is at that juncture the
commercial wisdom of lenders forming the COC comes
into play and they are entitled to take a call on either to
approve or not to approve the resolution plan which the
FRP has put forward before the COC for its approval. In my
view, therefore, the Approved Resolution Plan would be
fully justified in classifying between secured and unsecured
financial creditor, and also according to the value of their
securities and apportioning the amounts payable to them in
the best manner which is considered reasonable. I might
add here that irrespective of what the RP considers as
reasonable, it is always open to the COC to adjudge the
commercial wisdom of the resolution plan while approving
it. As pointed out by the Supreme Court in K. Sashidhar vs
Indian Overseas Bank & Ors. (Civil Appeal No. 10673 of
2018) such commercial decision of the COC is not subject
to appeal under the Code.
In the premises, I am of the opinion that SCB was
differently placed than other financial creditors in view of
the fact it did not have any charge or security on the project
assets but had advanced a large amount of loan amounting
to Rs.3000 crores on the basis of the pledge over the
shares of an offshore company and a corporate guarantee
149
extended by the Corporate Debtor. The resolution plan as
finally approved by COC was fully justified in treating SCB
as differently placed based on the cogent and intelligible
differentia that is apparent from the facts of the case. I see
nothing in the provisions of the Code of the Regulations
which would militate against the decision taken by the
COC.
I might add here that the commercial wisdom of the lenders
who are voting for the resolution of the COC is evidenced
by the fact that they had created securities on the project
assets of the Corporate Debtor after assessing the
commercial risk involved. In the case of SCB, however,
there seems to have been gross under security for the
large amount of Rs.3000 crores by merely seeking a
corporate guarantee from the Corporate Debtor along with
a charge only on the shares of the offshore company held
by the Corporate Debtor, wherein the liquidation value of
such shares is a mere Rs.60.71 crores. In fact, in view of
the fact situation, I find it hard to understand whether SCB
can really be treated as a secured creditor in the first place.
I am of the opinion that even if the corporate guarantee
were to be enforced, SCB would at best stand as a
secured creditor only to the extent of the value of the
shares of the offshore company as on the date of
enforcement of the guarantee and as an unsecured
creditor with respect to the rest of the loan advanced by it.
This is an equally valid consideration which might have
moved the COC while approving the resolution plan by
which the ultimate discretion for distribution is left to the
COC with a declaration that such allocation to the financial
creditors will be binding on all stake holders, which also
would include SCB.
xxx xxx xxx
In the facts and circumstances, I am of the opinion that the
manner in which the resolution plan was formulated and
approved by the overwhelming majority of 92.24% of the
voting creditors, is not only perfectly justified but is also
equitable. As the Supreme Court has pointed out in Swiss
Ribbons (supra), “equitable” does not mean equal
distribution; it means distribution which does justice to
every stakeholders involved in the process. In my opinion,
150
mere equal distribution would definitely do injustice to the
large majority of 92.24% shareholders who in their
commercial wisdom had ensured that the security was
created on project assets, while SCB was content with
creating a charge only on the shares of the offshore
company and seeking a corporate guarantee from the
Corporate Debtor.”
88. The aforesaid opinion was shared with all Committee of
Creditors members including Standard Chartered Bank. Importantly,
the minutes record:
“At this point, the representative from Canara Bank stated
that he requires clarity on the following questions before he
can consider the revised apportionment to SCB: (a)
Whether any NOCs were taken from the lenders before
taking corporate guarantee, as it is a financial covenant in
the sanctions of the lenders? (b) When SCB had funded
Essar Steel Offshore Ltd. (ESOL), whether SCB had not
taken security of Trinity coal mines as collateral, and the
cash flows and credentials from the assets as security? (c)
What is the end-use of the loan and was that end-use
ensured? At what stage is the project? Were the funds
really invested in the project?
xxx xxx xxx
The representatives of SCB raised issue of valuation and
mentioned that value of above INR 24 crores of ESOL
shares has not been estimated appropriately and is
erroneous. The value has been estimated based on
desktop valuation and the valuer has not considered
valuation of underlying assets. A valuation report of equity
of Trinity was shared by RP after receipt of same from
Corporate Debtor which shows value in excess of USD 600
mn.
xxx xxx xxx
Further, the representatives of EARC added that they
required clarify as to whether the underlying loans has
been enforced against the principal borrower and whether
any money has been recovered from the principal
151
borrower. SCB representative replied that these questions
were not relevant at this time and they were choosing not
to answer these questions. SBI representative pointed out
that these questions have been raised earlier and SCB has
never replied to these queries.
xxx xxx xxx
After several requests of the lenders, it was noted that SCB
declined to share the documents and did not answer any of
the questions as asked by the members of the CoC stating
that the same were irrelevant at this stage.
xxx xxx xxx
ICICI Bank also stated that it should be recorded that SCB
rejected offer of INR 200 crores was not considered by
SCB. The representative of SBI mentioned that the
proposal offered by ICICI Bank in its individual capacity and
not by other lenders. The representative of SCB mentioned
it is evident that the offer was only hypothetical.
It was also suggested by EARC that revised distribution to
SCB matter as per NCLT Order should also be voted upon
and the other lenders concurred with the same.”
 (emphasis supplied)
Finally, the allocation of INR 1,000 crore extra to operational creditors
was approved by a majority of 70.73% of the Committee of Creditors.
89. Given the aforesaid facts, Shri Sibal’s submissions on behalf of
Standard Chartered Bank, that the offer made by ArcelorMittal of
payment of INR 42,000 crores as upfront in order to pay 100%
principal outstanding of secured financial creditors of the corporate
debtor cannot be accepted. Given that Standard Chartered Bank was
reclassified as a secured financial creditor of the corporate debtor
only on 10.09.2018 and that the aforesaid upfront payment of INR
152
42,000 crores would include the principal amount payable to
Standard Chartered Bank as well, we have seen how in the course of
negotiation, the vast majority of financial creditors have ultimately
decided that Standard Chartered Bank will only get an amount based
on its security interest, which was accepted by ArcelorMittal. Shri
Sibal also argued that the final resolution plan ultimately offered a
sum of INR 39,500 crores instead of INR 42,000 crores, being a
minimum upfront payment from which it was possible to negotiate
upwards but not downwards. We cannot arrive at the conclusion that
the acceptance of the resolution plan by the majority of the
Committee of Creditors should be set aside on this score, inter alia,
for the reason that Shri Sibal assured us that he was not attacking the
acceptance of the revised plan but only distribution of amounts
payable under the said plan. This being so, it is also not possible to
accept the submission of Shri Sibal, that “feasibility and viability” of a
resolution plan will not include distribution of the amount of debt
under the said plan. It is also not possible to accept Shri Sibal’s
submission that the resolution plan must itself provide for distribution
inter se between secured financial creditors. It is enough that under
the Code and the Regulations, the resolution plan provides for
distribution of amounts payable towards debts based upon a
classification of various types of creditors. This both the original plan
153
as well as the negotiated plan of ArcelorMittal have already done, as
has been seen by us hereinabove, both plans containing the amount
to be paid to workmen separately, operational creditors of INR 1 crore
and less separately, operational creditors of INR 1 crore and over
separately and financial creditors, subdivided into secured and
unsecured as sub-classes, separately. All that was left for distribution
by ArcelorMittal was distribution inter se between secured financial
creditors which was then done by a majority of 92.24%, as has been
seen above based upon the value of their respective security
interests. Therefore, the allegation that the Committee of Creditors
relieved ArcelorMittal from the solemn offer made before the Supreme
Court by reducing the offer amount of INR 42,000 crores by INR
2,500 crores so that ArcelorMittal could acquire the debts of OSPIL, is
again a matter for negotiation being a business decision taken by the
Committee of Creditors with ArcelorMittal. In any case ultimately INR
35,000 crores was upped to INR 42,000 crores, it being made clear in
the final resolution plan that upfront payment of INR 42,000 crores is
a committed amount, even if working capital adjustment turns out to
be below INR 2,500 crores.
90. Shri Sibal also made an alternative submission that on the facts
of this case, a half-way house can be found so that Standard
154
Chartered Bank would get payment of something more above the
value of its security interest. The argument is that, assuming, whilst
denying, that classification amongst secured financial creditors is
permissible, such classification should be on the liquidation value of
the security enjoyed by the creditor and the balance distributed to all
secured financial creditors pro-rata. This methodology of distribution
has, according to him, been applied in State Bank of India v. Orissa
Manganese and Minerals Ltd. CA(IB) No. 391/KB/2018, approved
by the NCLT and not disturbed by the NCLAT. Therefore, it is argued
that, applying the aforesaid classification, the average liquidation
value of the security in the instant case, is to be as per the report of
DUFF & Phelps and RBSA, being a sum of INR 15,838 crores. This,
according to him, is the amount required to be distributed to the
secured financial creditors according to the value of their respective
security interests (viz. first charge, second charge, subservient
charge, residuary charge, etc.) and the balance to be distributed prorata amongst all financial creditors irrespective of their security. The
sum of INR 42,000 crores offered by ArcelorMittal would therefore,
according to him, be a sum of INR 15,838 crores paid over to the
secured financial creditors according to the value of their security and
the balance amount of INR 26,162 crores would then have to be
distributed amongst all financial creditors on a pro-rata basis.
155
91. What is important to note is that when one reads the
abovementioned judgment, it is a majority of 66% of the Committee of
Creditors who has exercised the discretion vested in it under the
Code in this particular manner, which has then correctly not been
disturbed by the NCLT and NCLAT. Far from helping Shri Sibal’s
client, the principle that is applied in such a case is that ultimately it is
the commercial wisdom of the requisite majority of the Committee of
Creditors that must prevail on the facts of any given case, which
would include distribution in the manner suggested in Orissa
Manganese (supra). It is, therefore, not possible to accept the
argument that the Adjudicatory Authority and consequently the
Appellate Authority would be vested with the discretion to apply what
was applied by the Committee of Creditors in the Orissa Manganese
case (supra). This submission is also devoid of merit and is,
therefore, rejected.
92. The other argument of Shri Sibal that Section 53 of the Code
would be applicable only during liquidation and not at the stage of
resolving insolvency is correct. Section 30(2)(b) of the Code refers to
Section 53 not in the context of priority of payment of creditors, but
only to provide for a minimum payment to operational creditors.
However, this again does not in any manner limit the Committee of
156
Creditors from classifying creditors as financial or operational and as
secured or unsecured. Full freedom and discretion has been given,
as has been seen hereinabove, to the Committee of Creditors to so
classify creditors and to pay secured creditors amounts which can be
based upon the value of their security, which they would otherwise be
able to realise outside the process of the Code, thereby stymying the
corporate resolution process itself.
93. The other argument based upon serious conflict of interest
between secured and unsecured financial creditors, as the majority
may get together to ride roughshod over the minority, is an argument
which flies in the face of the majority of financial creditors being given
complete discretion over feasibility and viability of resolution plans,
which includes the manner of distribution of debts that is contained in
them, subject to following the provisions of the Code relating, inter
alia, to dealing with the interests of all stakeholders including
operational creditors. The Committee of Creditors does not act in any
fiduciary capacity to any group of creditors, as is sought to be
suggested by Shri Sibal. On the contrary, it is to take a business
decision based upon ground realities by a majority, which then binds
all stakeholders, including dissentient creditors. It is important to note
that the original threshold required by way of majority was 75%. It is
157
during the working of the Code that this was found to be unrealistic
and therefore reduced to 66% - see the amendments made to
Section 28(3) and 30(4) of the Code by the Insolvency and
Bankruptcy Code (Second Amendment) Act of 2018. For all these
reasons therefore, it is not possible to accept Shri Sibal’s arguments.
94. The NCLAT judgment which substitutes its wisdom for the
commercial wisdom of the Committee of Creditors and which also
directs the admission of a number of claims which was done by the
resolution applicant, without prejudice to its right to appeal against the
aforesaid judgment, must therefore be set aside.
95. So far as Civil Appeal No. 6409 of 2019 is concerned, we have
perused paragraphs 70 to 76 of the impugned NCLAT judgment to
the effect that the cheques issued by the corporate debtor due to its
payment obligation towards Bhandar Power Limited were not issued
with a view to secure any payment obligation of the principal borrower
i.e. EPGL, is a finding of fact which dislodges the claim of this
appellant to be regarded as a financial creditor. We find no infirmity in
the aforesaid finding. This appeal is consequently dismissed.
96. So far as Civil Appeal Diary No. 36838 is concerned, we have
perused the relevant documents and paragraphs 63 and 64 of the
impugned NCLAT judgment and find that the NCLAT has erred
158
inasmuch as it has added the claim of this Appellant to the tune of
INR 861.19 crore despite the fact that the claim had already been
admitted by the resolution professional thereby resulting in a double
counting of the debt of this Appellant. This being the position, we find
it necessary to set aside this part of the impugned NCLAT judgment
as well.
97. So far as Civil Appeal No. 6266 of 2019, we have perused
paragraphs 78 to 81 of the impugned NCLAT judgment and find no
reason to dislodge the finding of the NCLAT that the claim was filed
by the Appellant after the approval of the resolution plan. However,
the NCLAT’s finding that the said claim is subject to arbitration and
that it was open for the Appellant to pursue the matter in terms of
Section 60(6) of the Code deserves to be aside in terms of this
judgment. This Appeal is consequently dismissed.
98. So far as Civil Appeal No. 6269 of 2019 is concerned, we have
perused paragraphs 83, 84 and 196 of the impugned NCLAT
judgment and find force in the contention of the Appellant that there
has been an error in the impugned NCLAT judgment in as much as it
notes the claim amount, as admitted, as being a sum of INR 124.88
crores, but later in the same judgment notes the said amount as INR
2.47 crores based on a chart submitted by the resolution
159
professional. This chart submitted by the resolution professional
specifies the amount of INR 2.47 crore (added after the NCLT
judgment dated 08.03.2019), which is in addition to the amount of
INR 124.88 crores already admitted by the resolution professional.
Therefore, the NCLAT has erred in noting INR 2.47 crore amount as
the amount of the Appellant’s claim, and this part of the judgment also
deserves to be set aside. Thus, the claim of the appellant shall be the
claim as admitted and registered by the resolution professional. This
apart, we find no merit in the submission of the Appellant with respect
to the sum of INR 121.72 crores as the same has been rightly
rejected by the NCLAT in view of the fact that the said claim was filed
after the completion of the CIRP period. However, the NCLAT’s
judgment inasmuch as it left it open for the Appellant to pursue the
matter in terms of Section 60(6) of the Code deserves to be aside in
terms of this judgment. This Appeal is thus partly allowed.
99. So far as Civil Appeal No. 7266 of 2019 and Civil Appeal No.
7260 of 2019 are concerned, the resolution professional has rejected
the claim of the Appellants on the ground of non-availability of duly
stamped agreements in support of their claim and the failure to
furnish proof of making payment of requisite stamp duty as per the
Indian Stamp Act despite repeated reminders having been sent by
160
the resolution professional. The application filed by the Appellants
before the NCLT came to be dismissed by an order dated 14.02.2019
on the ground of non-prosecution. The subsequent restoration
application filed by the appellants then came to be rejected by the
NCLT through judgment dated 08.03.2019 on two grounds: one, that
the applications could not be entertained at such a belated stage; and
two, that notwithstanding the aforementioned reason, the claim had
no merit in view of the failure to produce duly stamped agreements.
The impugned NCLAT judgment, at paragraphs 93 and 94, upheld
the finding of the NCLT and the resolution professional. In view of
these concurrent findings, the claim of the Appellants therefore
requires no interference. Further, the submission of the Appellants
that they have now paid the requisite stamp duty, after the impugned
NCLAT judgment, would not assist the case of the Appellants at this
belated stage. These appeals are therefore dismissed.
100. So far as Writ Petition (Civil) No. 1064 of 2019 is concerned, we
have perused the relevant documents and paragraph 36 of the
impugned NCLAT judgment and find force in the contention of the
Writ Petitioner that the NCLAT has wrongly noted that the claim
amount was notionally admitted by the resolution professional at INR
1 only. The resolution professional has admitted the claim of the Writ
161
Petitioner to a tune of INR 17.09 crore and the same is recorded in
the list of creditors prepared by the resolution professional. In view of
the same, this part of the NCLAT judgment is thus erroneous and the
claim shall be the claim as admitted and registered by the resolution
professional. The Writ Petition is thus allowed to this extent.
101. So far as Writ Petition (Civil) No. 1049 of 2019 is concerned,
the Petitioner is admittedly the operational creditor of one Wind World
India Ltd whose CIRP proceedings are pending before the NCLT,
Ahmedabad. The Petitioner has inter alia sought for permission to
raise various issues arising out of the facts of its own case (which has
been raised before us herein) in the matter pending before the NCLT.
In view of the fact that this judgment has not opined on the merits of
the case of the Writ Petitioner pending before the NCLT, it is open to
the Writ Petitioner to raise all contentions as permissible under the
applicable law before the NCLT in the pending proceedings. This Writ
Petition is thus allowed to this extent.
102. So far as Dakshin Gujarat Vij Co. (Respondent No. 11 in Civil
Appeal Diary No. 24417 of 2019), State Tax Officer (Respondent No.
12 in Civil Appeal Diary No. 24417 of 2019), Gujarat Energy
Transmission Corporation Ltd. (Respondent No. 17 in Civil Appeal
Diary No. 24417 of 2019) and Indian Oil Corporation Ltd.
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(Respondent No. 18 in Civil Appeal Diary No. 24417 of 2019) are
concerned, the resolution professional admitted the claim of the
abovementioned respondents notionally at INR 1 on the ground that
there were disputes pending before various authorities in respect of
the said amounts. However, the NCLT through its judgment dated
08.03.2019 directed the resolution professional to register the entire
claim of the said respondents. The NCLAT in paragraphs 43 and 196
of the impugned judgment upheld the order passed by the NCLT as
aforesaid and admitted the claim of the abovementioned
respondents. We therefore hold that this part of the impugned
judgment deserves to be set aside on the ground that the resolution
professional was correct in only admitting the claim at a notional
value of INR 1 due to the pendency of disputes with regard to these
claims.
103. The appeals filed by the Committee of Creditors of Essar Steel
Limited and other Civil Appeals are allowed. The impugned NCLAT
judgment is set aside, except insofar as Civil Appeal No. 6409 of
2019, Civil Appeal No. 7266 of 2019, Civil Appeal No. 7260 of 2019
are concerned, which are dismissed. Insofar as Civil Appeal No. 6266
of 2019 and Civil Appeal No. 6269 of 2019 is concerned, the Appeals
are partly allowed in terms of this judgment. The Writ Petitions are
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disposed of in terms of the judgment. It is made clear that the CIRP of
the corporate debtor in this case will take place in accordance with
the resolution plan of ArcelorMittal dated 23.10.2018, as amended
and accepted by the Committee of Creditors on 27.03.2019, as it has
provided for amounts to be paid to different classes of creditors by
following Section 30(2) and Regulation 38 of the Code.
 ……..………….……………..J.
(R.F. Nariman)
……..………….……………..J.
(Surya Kant)
……..………….……………..J.
(V. Ramasubramanian)
New Delhi;
November 15, 2019
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