1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO.8129 OF 2019
GHANASHYAM MISHRA AND SONS
PRIVATE LIMITED THROUGH
THE AUTHORIZED SIGNATORY ...APPELLANT(S)
VERSUS
EDELWEISS ASSET RECONSTRUCTION
COMPANY LIMITED THROUGH THE
DIRECTOR & ORS. .... RESPONDENT(S)
WITH
CIVIL APPEAL NO.____1554_______ OF 2021
[Arising out of Special Leave Petition No.11232 of 2020]
WRIT PETITION (CIVIL) NO.1177 OF 2020
CIVIL APPEAL NOS.______15501553____________ OF 2021
[Arising out of Special Leave Petition Nos.71477150 of
2020]
J U D G M E N T
B.R. GAVAI, J.
2
1. Leave granted in Special Leave Petition (Civil)
Nos. 11232 of 2020 and 71477150 of 2020.
2. The short but important questions, that arise for
consideration in this batch of matters, are as under:
(i) As to whether any creditor including the
Central Government, State Government or
any local authority is bound by the
Resolution Plan once it is approved by an
adjudicating authority under subsection
(1) of Section 31 of the Insolvency and
Bankruptcy Code, 2016 (hereinafter
referred to as ‘I&B Code’)?
(ii) As to whether the amendment to Section
31 by Section 7 of Act 26 of 2019 is
clarificatory/declaratory or substantive in
nature?
(iii) As to whether after approval of resolution
plan by the Adjudicating Authority a
creditor including the Central Government,
State Government or any local authority is
entitled to initiate any proceedings for
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recovery of any of the dues from the
Corporate Debtor, which are not a part of
the Resolution Plan approved by the
adjudicating authority?
3. We will first refer to the facts in each of these
matters.
CIVIL APPEAL NO.8129 OF 2019 [GHANASHYAM
MISHRA AND SONS PRIVATE LIMITED Vs. EDELWEISS
ASSET RECONSTRUCTION COMPANY LIMITED &
OTHERS]
4. Orissa Manganese & Minerals Limited
(hereinafter referred to as “Corporate Debtor” or “OMML”)
was engaged in the business of mining iron ore, graphite,
manganese ore and agglomerating iron fines into pellets
through its facilities in Orissa and Jharkhand. The
Corporate Insolvency Resolution Process (hereinafter
referred to as “CIRP”) was initiated in respect of the
Corporate Debtor by an application under Section 7 of I&B
Code filed by the State Bank of India (hereinafter referred to
as “SBI”) before the National Company Law Tribunal,
Kolkata Bench, Kolkata (hereinafter referred to as “NCLT”).
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5. Vide order dated 3.8.2017, Company Petition
(I.B.) No. 371/KB/2017 filed by SBI was admitted. Shri
Sumit Binani was appointed as Interim Resolution
Professional (hereinafter referred to as “IRP”). Upon
admission of the said Company Petition, CIRP was initiated
with effect from 3.8.2017. The appointment of IRP was
confirmed by the Committee of Creditors (hereinafter
referred to as “CoC”) in their meeting held on 4.9.2017. The
Resolution Professional (hereinafter referred to as “RP”)
continued with the resolution process by inviting
Expression of Interest (hereinafter referred to as “EOI”) and
applications for resolution plan in accordance with the
provisions of the I&B Code and the Regulations framed
thereunder. The initial period of CIRP of 180 days expired
on 29.1.2018. At the request of CoC, RP moved an
application for extension of CIRP period, which came to be
extended by 90 days i.e. till 29.4.2018.
6. In response to the invitation, three Resolution
Plans were received by RP each from, Edelweiss Asset
Reconstruction Company Limited (hereinafter referred to as
5
“EARC”), respondent No.1 herein, Orissa Mining Private
Limited (hereinafter referred to as “OMPL”) and
Ghanashyam Mishra & Sons Private Limited (hereinafter
referred to as “GMSPL”), the appellant herein, respectively.
In the 8th meeting of the CoC held on 14.3.2018, EARC was
declared as H1 Bidder. However, EARC failed to satisfy CoC
in the negotiations and as such, the resolution plan
submitted by EARC came to be rejected in the 9th meeting of
CoC held on 31.3.2018.
7. CoC thereafter proceeded for negotiations with
the H2 Bidder i.e. GMSPL. However, the resolution plan of
GMSPL was also found to be unacceptable to CoC and
therefore, in its 10th meeting held on 3.4.2018, it decided to
annul the existing process and initiate a fresh process for
invitation of Resolution Plan only from the applicants, which
had earlier submitted their EOI. Accordingly, a
communication was sent to the applicants, which had
submitted their EOI. In response to the said invitation,
three Resolution Plans were received each from GMSPL,
EARC and Srei Infrastructure Finance Limited (hereinafter
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referred to as “SIFL”) respectively. These Resolution Plans
were considered by CoC in its 11th meeting held on
13.4.2018. After evaluation of the Resolution Plans, CoC
ranked GMSPL as the H1 bidder.
8. Further negotiations were held by CoC with
GMSPL. After several rounds of negotiations, the Resolution
Plan of GMSPL was considered by CoC for its approval. In
its 12th meeting held on 21.4.2018, CoC unanimously took a
decision to convene a meeting of CoC on 25.4.2018 at 6 PM,
for voting on the Resolution Plan proposed by GMSPL. After
being satisfied, that the Resolution Plan submitted by
GMSPL meets all the requirements under subsection (2) of
Section 30 of the I&B Code, the same was placed before the
Members of CoC for voting, and the Resolution Plan came to
be approved by more than 89.23% of the voting share of
financial creditors of the Corporate Debtor.
9. Accordingly, a Company Application being C.A
(IB) No. 402/KB/2018 came to be filed by RP for approval of
the Resolution Plan submitted by GMSPL. One application
being C.A. (IB) No. 398/KB/2018 came to be filed by EARC
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respondent No.1 herein, challenging the approval of the
Resolution Plan of GMSPL. One more application came to
be filed by EARC being C.A. (IB) No. 470/KB/2018
challenging the decision of RP in not admitting its claim.
The said application was filed, contending, that its claim
stood on the strength of corporate guarantee provided by
the Corporate Debtor against the takeout facility provided
to Adhunik Power and Natural Resources Limited
(hereinafter referred to as “APNRL”), being sister concern of
the Corporate Debtor. It was contended, that in not
admitting the claim on the strength of corporate guarantee,
RP violated Regulations 13 and 14 of the Insolvency and
Bankruptcy Board of India (Insolvency Resolution Process
for Corporate Persons) Regulations, 2016 (hereinafter
referred to as “the Regulations”). It was prayed in the
application for a direction to the successful resolution
applicant i.e. GMSPL, to undertake to pay the full amount
due and payable under the said corporate guarantee and
further to issue directions for protecting the rights of the
lenders of APNRL as pledgee. One more Application being
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C.A. (IB) No.509/KB/2018 was filed by the District Mining
Officer, Department of Mining and Geology, Jharkhand
challenging nonadmission of its claim to the tune of
Rs.93,51,91,724/ and Rs.760.51 crore.
10. NCLT by an elaborate order dated 22.6.2018
approved the Resolution Plan of GMSPL, which was duly
approved by CoC by voting share of more than 89.23%.
Rest of the applications including the two filed by EARC, the
respondent No.1 herein, came to be rejected.
11. Being aggrieved by the order passed by NCLT,
EARC preferred Company Appeal being Company Appeal
(AT) (Insolvency) Nos. 437/2018 and 444/2018 before the
National Company Law Appellate Tribunal, New Delhi
(hereinafter referred to as “NCLAT”). Company Appeal (AT)
(Insolvency) No. 437/2018 was against the rejection of
claims of EARC as Financial Creditor and thereby its noninclusion in CoC. Company Appeal (AT) (Insolvency) No.
444/2018 came to be filed with the grievance, that RP and
CoC had erroneously held, that the plan of GMSPL was
better than that of EARC. One more Company Appeal being
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Company Appeal (AT) (Insolvency) No. 500/2018 came to be
filed by Sundargarh Mines & Transport Workers Union
(hereinafter referred to as “SMTWU”) on behalf of the
workmen of the Corporate Debtor. One another Company
Appeal being Company Appeal (AT) (Insolvency)
No.438/2018 came to be filed by one Deepak Singh, an
employee of APNRL, claiming dues of his salary.
12. By the impugned judgment and order dated
23.4.2019, NCLAT while holding, that RP was justified in
not accepting the claim of EARC and that NCLT had rightly
rejected the application filed by EARC, however, observed
that the rejection of the claim for the purpose of collating
and making it part of the Resolution Plan will not affect the
right of EARC to invoke the Bank Guarantee against the
Corporate Debtor, in case the principal borrower failed to
pay the debt amount, since the moratorium period had
come to an end. NCLAT on comparison of the plans
submitted by EARC and GMSPL further held, that the
resolution plan submitted by GMSPL was a better one than
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the one submitted by other applicants and there was no
illegality in accepting the resolution plan of GMSPL.
13. Insofar as the Company Appeal (AT) (Insolvency)
No. 500/2018 is concerned, the grievance was, that though
there were around 1,476 workmen, RP ignored their rightful
wages, statutory dues and other benefits. NCLAT, in the
said order, observed, that after the period of moratorium, it
was open for the persons to move before a civil court or to
move an application before the court of competent
jurisdiction against the Corporate Debtor. NCLAT therefore
observed, that the appellant therein may move before the
civil court or a court of competent jurisdiction and may file
an application before the Labour Court for appropriate
reliefs in favour of the concerned workmen or against the
Corporate Debtor, if they have actually worked and had not
been taken care of in the Resolution Plan.
14. Insofar as Company Appeal (AT) (Insolvency) No.
438/2018 is concerned, it was the claim of Deepak Singh,
appellant therein, that he had joined APNRL, the holding
Company of the Corporate Debtor, as the PresidentGroup
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Head HR from 2.6.2014 to 9.3.2015. It was his claim, that
he had an amount of Rs.17,03,000/ recoverable from the
said APNRL and as such, was an Operational Creditor. It
was submitted, that though the claim of the said appellant
was valid, it was illegally rejected by RP. NCLAT held, that
insofar as the said appeal is concerned, no ground as is
permissible under subsection (3) of Section 61 of I&B Code
is made out and as such, relief could not be granted in the
appeal. However, it was observed, that the said order
passed in the appeal would not come in the way of appellant
to move the appropriate forum for appropriate relief.
15. GMSPL, thus, aggrieved by the observations
made by NCLAT to the effect, that the claims of the parties,
which are not included in the Resolution Plan could be
agitated by them before the other forums, has preferred the
present appeal.
CIVIL APPEAL ARISING OUT OF SPECIAL LEAVE
PETITION (CIVIL) NO.11232 OF 2020
[ULTRATECH NATHDWARA CEMENT LIMITED VS.
STATE OF UTTAR PRADESH AND OTHERS
16. The appellant is a wholly owned subsidiary of
UltraTech Cement Limited and is engaged in the business of
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manufacturing and marketing of cement and allied
products.
17. On 19.12.2015, the Additional Commissioner,
Commercial Tax, Ghaziabad passed an order in the appeal
preferred by M/s Binani Cement Limited, thereby, allowing
the appeal filed by Binani Cement and setting aside the
order of imposition of fine of Rs.24,71,885/. Vide another
order dated 22.12.2015, passed in the appeal filed by
Binani Cement, the order of imposition of fine of
Rs.59,61,445/ also came to be set aside. Vide order dated
2.8.2017, the Deputy Commissioner, Commercial Tax,
Division10, Ghaziabad held, that Binani Cement was liable
to pay Entry Tax of Rs.40,47,344/ for the Assessment Year
20032004. By another order dated 2.8.2017, the Deputy
Commissioner, Commercial Tax, Division10, Ghaziabad
further held, that Binani Cement was liable to pay Entry
Tax of Rs.43,06,715/ for the Assessment Year 20042005.
18. Since the said Binani Cement was unable to pay
the debt to Bank of Baroda, the Bank of Baroda filed an
application being C.A. (IB) No. 359/KB/2017 before NCLT,
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Kolkata Bench under Section 7 of I&B Code. Vide order
dated 25.7.2017, NCLT admitted the petition for initiating
the CIRP process. Vide the said order, NCLT also declared
moratorium for the purposes referred to in Section 14 of
I&B Code.
19. Vide communication dated 10.11.2017, the
authorities were informed about the initiation of the CIRP.
However, the authority by an endorsement made on the
application of the appellant herein stated, that there was no
stay granted by NCLT on tax assessment process. It was
observed, that if there was any clear order passed by NCLT,
the same should be produced or the Binani Cement should
appear on the next date i.e. 27.11.2017 for hearing of tax
assessment process.
20. On 28.7.2017, RP made a public announcement
inviting claims from all the creditors of the Corporate
Debtor, as is required under Section 15 of I&B Code. The
last date for submission of claims was 8.8.2017. RP upon
receipt of the claims maintained a list of creditors alongside
the amount claimed by them and the security interest. RP
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also invited EOI. In response, various entities including the
present appellant submitted their EOI as well as resolution
plans. CoC in its meeting dated 28.5.2018, unanimously
approved the Resolution Plan submitted by the present
appellant. Pursuant to the approval by CoC, NCLAT
granted approval to the Resolution Plan of appellant vide
order dated 14.11.2018. The said order came to be
challenged before this Court in Civil Appeal No.
10998/2018, which was dismissed by this Court vide order
dated 19.11.2018.
21. On 13.12.2018, the name of the Corporate Debtor
was changed to UltraTech Nathdwara Cement Limited from
Binani Cement Limited and the management of the
Corporate Debtor was taken over by Ultratech Cement
Limited w.e.f. 20.11.2018. Thereafter, the appellant
addressed various communications to the tax authorities,
who are respondents herein informing them, that after the
Resolution Plan was approved by NCLT, all proceedings
instituted against the Corporate Debtor, arising and
pending before the transfer date shall stand withdrawn. It
15
was also informed, that all the liabilities towards operational
creditors shall be deemed to have been settled by discharge
and payment of the resolution amount by the Corporate
Debtor. However, it was insisted by the tax authorities, that
since there was no specific stay, proceedings could not be
dropped. After various communications addressed by the
appellant to the Joint Commissioner, Commercial Tax
(Corporate Circle), Ghaziabad dated 26.4.2019, the following
endorsements came to be made by the authority on
29.4.2019:
“After consideration on application
presented by you, it is found that, by
Hon’ble NCLT/NCLAT after transfer, neither
stay is imposed on tax assessment nor on
creation of demand. So the created demand
is payable by you. If you are not agree with
it, preferring appeal before higher authority,
present its copy to us. Disposal is done of
application presented by you.”
_______
22. The Commercial Tax Department of the State of
Rajasthan filed Civil Appeal No. 5889/2019 challenging the
Resolution Plan. However, the said appeal came to be
dismissed vide order of this Court dated 26.7.2019. The
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appeals being Civil Appeal Nos. 630634/2020 were also
preferred by the Commissioner of Central Excise, Goods and
Services Tax, Jodhpur challenging the Resolution Plan. The
same also came to be dismissed by this Court vide order
dated 24.1.2020.
23. The appellant therefore filed a Civil Miscellaneous
Writ Petition No. 354/2020 before the High Court of
Allahabad challenging the order passed by the Additional
Commissioner Grade 2 (Appeal) dated 30.1.2020, to the
effect, that the proceedings in the State of U.P. would
remain unaffected irrespective of the approval of the
Resolution Plan of the appellant by NCLT. The appellant
also prayed for a declaration, that all the proceedings
pending before different authorities stand abated in terms of
the approval of the Resolution Plan by NCLT. A prayer was
also made for refund of Rs.248.92 lakhs deposited by the
appellant under protest and for return of the Bank
Guarantee.
24. The Division Bench of the Allahabad High Court
vide order dated 6.7.2020 observed, that the contention of
17
the appellant with regard to the approval of the Resolution
Plan by NCLT has been dealt with by the Assessing
Authority as well as by the Appellate Authority and
therefore, it was in the fitness of things that the appellant
should avail of the alternative remedy of filing a second
appeal available under the VAT Act. Being aggrieved by the
same, the appellant has filed the present appeal.
WRIT PETITION (CIVIL) NO. 1177 OF 2020 M/S
MONNET ISPAT & ENERGY LIMITED AND ANOTHER VS.
STATE OF ODISHA AND ANOTHER
25. The petitioner Company is a Corporate Debtor in
respect of which CIRP proceedings commenced in July 2017
and ended in July 2018, when NCLT approved the
Resolution Plan submitted by a Consortium of Aion
Investment Private Limited and JSW Steel Limited (“AionJSW” for short). Prior to approval by NCLT, CoC had
granted approval to the said Resolution Plan by a voting
majority of 98.97%. It is the contention of the petitioner,
that in accordance with the provisions of I&B Code, RP had
made a public announcement thereby, inviting claims from
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Creditors. Contending, that the demand notices issued by
the respondents for recovery of Service Tax towards Royalty,
District Mineral Foundation (“DMF” for short) and National
Mineral Exploration Trust (“NMET” for short) against the
iron ore purchased by the petitioner Company are contrary
to the law laid down by this Court in the case of Committee
of Creditors of Essar Steel India Limited Through
Authorized Signatory v. Satish Kumar Gupta and
Others1
, the petitioner has directly approached this Court
by filing a writ petition under Article 32 of the Constitution
of India.
CIVIL APPEALS ARISING OUT OF SPECIAL LEAVE
PETITION (CIVIL) NOS.71477150 OF 2020
[ELECTROSTEEL STEELS LIMITED, BOKARO,
JHARKHAND VS. STATE OF JHARKHAND AND OTHERS]
26. The appellant is a Corporate Debtor in respect of
which the proceedings under Section 7 were initiated by the
SBI. Vide order dated 21.7.2017 of NCLT, the application
filed by SBI was admitted and Mr. Dhaivat Anjaria was
1 (2020) 8 SCC 531
19
appointed as Interim Resolution Professional (IRP). In its
meeting dated 21.8.2017, CoC approved the appointment of
IRP as RP. In response to the invitation for submission of
resolution plans, four applicants had submitted their
Resolution Plans. CoC had approved the Resolution Plan of
Vedanta Limited by 100% voting share. NCLT vide order
dated 17.4.2018 approved the Resolution Plan of Vedanta
Limited. The appeal being Company Appeal (AT)
(Insolvency) No. 175/2018 filed by one Renaissance Steel
India Private Limited challenging the order of NCLT came to
be dismissed by NCLAT vide order dated 10.8.2018.
Challenging the notices issued by the respondent State
Authorities and the order of SBI asking it to pay an amount
of Rs.37,41,41,602/ on account of tax penalty due under
the Jharkhand VAT Act for the period 201112 and 2012
13, the appellant approached the High Court of Jharkhand.
The appellant had also challenged the letter dated
22.11.2019 issued by State Tax Officer, Bokaro to deposit
the amount of Rs.75,57,000/. As in the other matters, it is
contended by the appellant, that in view of Section 31 of
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I&B Code, since the claim made by the respondent was not
a part of the Resolution Plan, it would get extinguished on
the Resolution Plan being approved by NCLT. The said writ
petition came to be rejected by the High Court on the
ground, that the petitioner had no locus and that the
Resolution Plan was not binding on the State Government
since it had not participated in the CIRP proceedings.
SUBMISSIONS IN CIVIL APPEAL NO.8129 OF 2019
[Ghanashyam Mishra and Sons Private Limited vs.
Edelweiss Asset Reconstruction Company Limited &
Others]
27. Dr. A.M. Singhvi, learned Senior Counsel
appearing for GMSPL submitted, that as held by this Court
in a catena of decisions, the commercial wisdom of CoC in
accepting or rejecting the Resolution Plan is paramount. He
submitted, that the interference would be warranted within
the limited parameters of judicial review that are available
under the Statute. The learned Senior Counsel further
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submitted, that once the adjudicating authority approves
the Resolution Plan, it shall be binding on everyone
including Corporate Debtor and its employees, Members,
Creditors including the Central Government, any State
Government or any local authority, to whom a debt is owed
in respect of the payment of dues arising under any law for
the time being in force, guarantors and other stakeholders,
involved in the Resolution Plan. He submitted, that once a
Resolution Plan is accepted, if any additional liability is
thrust upon the Resolution Plan, the entire plan would
become unworkable, resulting into the frustration of the
very purpose of the enactment i.e. revival of the Corporate
Debtor.
28. Dr. Singhvi further submitted, that perusal of the
Resolution Plan submitted by EARC and particularly Clause
2.1.3 thereof would reveal, that the said Plan also provides,
that all the debts and all dues, liability or obligations other
than the one, which are included in Resolution Plan, shall
be deemed to have been irrevocably waived and
permanently extinguished and written off in full with effect
22
from the effective date. He submitted that a similar
provision is also made in the Resolution Plan submitted by
GMSPL.
29. The learned Senior Counsel further submitted,
that the Resolution Plan submitted by GMSPL is for an
amount of Rs.321.19 crore. If additional liability of
Rs.648.89 crore is saddled upon the resolution applicant,
the total resolution plan itself would be unworkable.
30. Dr. Singhvi further submitted that NCLT has
found the conduct of EARC not to be bona fide. He
submitted, that NCLT has categorically found, that the
application filed by EARC was a deliberate attempt to stage
manage an objection against the approval of Resolution Plan
submitted by an entity, other than it. He submitted, that as
a matter of fact, NCLT has imposed costs of Rs. 1 lakh on
EARC taking into consideration its conduct.
31. Dr. Singhvi relied upon the judgments of this
Court in the cases of K. Shashidhar vs. Indian Overseas
Bank and Others2
, Committee of Creditors of Essar
Steel India Limited through Authorised Signatory vs.
2 (2019) 12 SCC 150
23
Satish Kumar Gupta & Ors. (supra) Maharashtra
Seamless Limited vs. Padmanabhan Venkatesh and
others3
, Karad Urban Cooperative Bank Ltd. vs.
Swwapnil Bhingardevay & Ors.4 and Kalpraj
Dharamshi and Another vs. Kotak Investment Advisors
Limited and Another5
.
32. Mr. Prashant Bhushan, learned Counsel
appearing on behalf of the EARCrespondent No.1
submitted, that by the impugned order, NCLAT has only
reserved the right of EARC to invoke the Corporate
Guarantee in its favour. He submitted, that on account of
the erroneous conduct of the proceedings by RP and CoC,
EARC has been put in a precarious condition. He
submitted, that on one hand RP has not recognized EARC
as a financial creditor thereby, depriving its nomination to
CoC and participation in finalization of the proceedings. On
the other hand, denying EARC to encash its bank guarantee
would leave EARC high and dry. A substantial claim of
3 (2020) 11 SCC 467
4 (2020) 9 SCC 729
5 2021 SCC OnLine SC 204
24
EARC would be rendered futile, in the event the order
passed by NCLT is to be maintained. He therefore
submitted, that no interference is warranted in the appeal.
33. In reply to the submissions of the appellant that
EARC has not preferred an appeal against the order of
NCLAT though its appeal was disposed of is concerned, the
learned Counsel relying on the judgment of this Court in the
case of Banarasi and Another v. Ram Phal6
submitted,
that since the findings recorded by NCLAT are in its favour,
there was no occasion for it to prefer an appeal. He
submitted, that in any event, it can raise the grounds
insofar as the findings in the impugned order, which are
adverse to EARC in addition to supporting the final
judgment in its favour.
34. Shri Neeraj Kishan Kaul, learned Senior Counsel
appearing on behalf of the appellant submitted, that
assuming without admitting that EARC could be considered
as the financial creditor, it could have had voting right only
to the extent of 9% and even in that eventuality, resolution
6 (2003) 9 SCC 606
25
plan of GMSPL would have been approved by CoC with the
majority of more than 80%.
SUBMISSIONS IN CIVIL APPEAL ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO.11232 OF 2020
[UltraTech Nathdwara Cement Limited v. State of Uttar
Pradesh and Others]
35. Dr. Singhvi, learned Senior Counsel appearing on
behalf of the appellantUltraTech Nathdwara Cement
Limited submitted, that a conjoint reading of subsection
(10) of Section 3 and subsections (20) and (21) of Section 5
would show, that even if there was no amendment to
Section 31 of I&B Code by the 2019 Amendment, still the
Central Government and any State Government or the local
authorities were bound by the same and any statutory dues
owed to them by the Corporate Debtor, which were not
included in the resolution plan, shall stand extinguished.
He submitted, that the 2019 Amendment, which amends
Section 31 is clarificatory in nature and only declares and
clarifies the position of law, which has already been in
existence i.e. the Central Government, any State
26
Government and local authorities are bound by the CIRP.
He submitted, that this Court in the cases of State Bank of
India vs. V. Ramakrishnan and Another7 and B.K.
Educational Services Private Limited v. Parag Gupta
and Associates8
has held the amendment to certain
provisions of the I&B Code to be clarificatory in nature. The
learned Senior Counsel submitted, that upon perusal of the
provisions of the I&B Code, it is clear, that once NCLT
grants approval to the Resolution Plan, all proceedings
pending insofar as the Corporate Debtor is concerned,
which are not included in the Resolution Plan shall stand
automatically stayed. He submitted, that perusal of the
chart pertaining to the dues of the respondents, clearly
reveal that all of the said dues are prior to the admission of
the Company Petition filed under Section 7 of I&B Code and
therefore, the respondents are not entitled to continue the
proceedings in respect thereof since the same do not form
part of the approved resolution plan.
7 (2018) 17 SCC 394
8 (2019) 11 SCC 633
27
36. He submitted, that the orders passed by NCLAT
were challenged before this Court by the Revenue
Authorities of the Rajasthan State as well as the
Commissioner of Central Excise (GST), Jodhpur and this
Court had refused to interfere with the order passed by
NCLAT. It is submitted, that in this background, the
authorities are totally unjustified in continuing the
proceedings, which are undisputedly with respect to the
dues prior to admission of the application under Section 7
of I&B Code, only on the ground, that there is no specific
stay order passed by NCLT.
37. He submitted, that the High Court has erred in
refusing to entertain the writ petition of the appellant solely
on the ground, that an alternative remedy by way of a
second appeal was available to the appellant. He submitted,
that in catena of judgments, this Court has held, that nonexercise of jurisdiction under Article 226, despite availability
of alternative remedy is a rule of selfrestraint and in the
appropriate areas carved out by this Court, entertaining a
petition under Article 226, despite availability of alternative
28
remedy, would be permissible. He submitted, that applying
the said principle, the proceedings before the authority
since stand prohibited in view of the provisions of the I&B
Code, the High Court erred in refusing to entertain the
petition.
38. The learned Senior Counsel further submitted,
that despite the pendency of the present appeal, the Joint
Commissioner, Commercial Tax, Ghaziabad has passed an
Assessment Order dated 2.2.2021 for the period prior to
admission of Section 7 petition, as such the appellant has
filed IA No.26255/2021 challenging the said assessment
order.
39. Dr. Singhvi further submitted, that though the
respondent authorities were aware of the Resolution
Proceedings, they had failed to submit any claim, in
response to the public notices issued by RP.
40. Shri V. Shekhar, learned Senior Counsel
appearing on behalf of the State Authorities justified the
impugned order and prayed for dismissal of the appeal. He
submitted, that the order passed by NCLT would not come
in the way of adjudicatory proceedings, which were
29
continued by the authorities under the provisions of the
relevant Statutes. He submitted, that the assessment
orders which were passed in accordance with law were duly
approved in appeal by the higher authority and therefore,
the High Court was justified in observing that the petition
was not maintainable, in view of the availability of
alternative remedy of filing a second appeal.
41. The learned Senior Counsel submitted, that the
adjudicatory authorities acting under the relevant statutes
being not a part of CoC are not bound by the decision of
CoC, which is approved by NCLT. He further submitted,
that merely continuation of the adjudicatory proceedings
cannot be a part of coercive action.
42. Shri V. Shekhar submitted, that 2019
Amendment cannot be said to be clarificatory in nature and
as such, the proceedings, which were pending prior to the
date of the amendment to Section 31, would not be affected
by the 2019 Amendment to Section 31. He therefore prayed
for dismissal of the appeal.
30
SUBMISSIONS IN WRIT PETITION (CIVIL) NO. 1177 OF
2020 [M/s Monnet Ispat & Energy Limited and Another
v. State of Odisha and Another]
43. Shri Kaul, learned Senior Counsel appearing on
behalf of the writ petitioner submitted, that in spite of clear
legal position as enunciated in various judgments of this
Court, various authorities in different parts of the country
are continuing with the proceedings in respect of statutory
dues existing prior to the date of approval of resolution plan
by NCLT. He submitted, that various High Courts have
held, relying on the judgments of this Court, that statutory
dues prior to the date of admission of Section 7 application
and which are not part of the Resolution Plan shall stand
extinguished and the proceedings in respect thereof would
no more survive. However, in some States, the authorities
of the State are flouting the law and as such, the petitioner
has approached this Court in its extraordinary jurisdiction
under Article 32 of the Constitution so that there is an
authoritative pronouncement by this Court. He submitted,
that the respondent authorities in the present case had
31
failed to file the claims in response to the statutory public
notice issued by RP. The first demand by the authorities
raised is only after the plan was approved by CoC on
9.4.2018. He also relied on the speech delivered by the
Hon’ble Finance Minister in Rajya Sabha on 29.7.2019, to
buttress his submissions that the 2019 Amendment of
Section 31 of I&B Code is clarificatory in nature.
SUBMISSIONS IN APPEALS ARISING OUT OF SPECIAL
LEAVE PETITION (CIVIL) NOS.71477150 OF 2020
[Electrosteel Steels Limited, Bokaro, Jharkhand vs.
State of Jharkhand and Others]
44. Dr. Singhvi submitted, that in the present matter
though NCLT had approved the Resolution Plan on
17.4.2018 and NCLAT had dismissed the appeal on
10.8.2018, only thereafter on 17.8.2018, the reassessment
order came to be passed for the period 201213. He
submitted, that immediately after the appellant discovered
about the said order, the same was challenged in a writ
petition. However, the High Court has dismissed the petition
on erroneous grounds. It is submitted, that one of the
32
grounds on which the petition is dismissed is, that it is the
Vedanta Limited, which was an aggrieved party since it was
a Resolution Applicant and as such, the petition at the
behest of the present appellant, which was a Corporate
Debtor was not tenable. He submitted, that the second
ground on which the writ petition is dismissed is that the
State Authorities had not participated in CIRP and the order
passed by NCLT was binding only on the parties, which
have participated in the Resolution process. He submitted,
that both the grounds are erroneous inasmuch as, Vedanta
Limited is a successful Resolution Applicant. The
Resolution process is in respect of the present appellantwrit petitioner, which is the Corporate Debtor and as such,
the petition at the behest of the present appellant was very
much tenable in law. Insofar as the second ground of the
High Court is concerned, he submitted, that if such a view
is accepted, it will frustrate the entire object of I&B Code
and the revival of the Debtor Companies would be
impossible if the successful resolution applicants are
33
sprung with the surprise debts, which are not part of the
Resolution Plan.
45. Shri Gurukrishna Kumar, learned Senior Counsel
appearing on behalf of the respondent submitted, that the
entire process conducted by RP and CoC is fraudulent. He
submitted, that in accordance with Section 29 and
specifically, clause H of Regulation 36, RP was required to
furnish the details of the material litigation and an ongoing
investigation or proceedings initiated by Government and
Statutory Authorities in the information memorandum.
However, the Resolution Applicant had fraudulently used
I&B Code by suppressing the vital information with regard
to the same and thereby, denying the legitimate dues of
public exchequer.
46. Dr. Singhvi in rejoinder submitted, that it is
respondent’s own admission that they have not participated
in the proceedings conducted by RP, CoC, NCLT, NCLAT
and even this Court. He submitted, that when the other
Departments/Ministries had participated in the proceedings
and raised their claims, it does not lie in the mouth of
34
respondents to say, that they were not aware about CIRP
proceedings.
47. In the said appeal, an intervention application
has also been filed on behalf of Tata Steel BSL Limited. It is
contended in the intervention application, that though the
resolution process in respect of intervener/applicant was
complete, still the Revenue Authorities were continuing with
the proceedings with respect to the dues owed prior to the
date of approval of resolution plan by NCLT. It is the
submission of the intervener/applicant, that as such, legal
position needs to be settled by this Court and therefore the
intervener/applicant has filed the present intervention
application. Shri Jaideep Gupta, learned Senior Counsel
appearing on behalf of the said intervenor applicant has
made submissions on similar lines as are advanced by Dr.
Singhvi and Shri Kaul, learned Senior Counsel appearing in
the other matters.
CONSIDERATION
35
48. We have extensively heard the learned counsel
appearing for the parties in all the matters, perused the
written submissions and materials on record.
49. The provisions of I&B Code have undergone
scrutiny in various judgments of this Court. We would not
like to burden the present judgment with the provisions of
the statute, which have been duly reproduced and
considered in the earlier judgments of this Court.
50. In the case of Innoventive Industries Ltd. vs.
ICICI Bank & Anr.9
after reproducing the ‘Statement of
Objects and Reasons’ of I&B Code in paragraph 12, this
Court observed thus:
“13. One of the important objectives of
the Code is to bring the insolvency law
in India under a single unified umbrella with the object of speeding up of
the insolvency process. As per the data
available with the World Bank in 2016,
insolvency resolution in India took 4.3
years on an average, which was much
higher when compared with the United
Kingdom (1 year), USA (1.5 years) and
South Africa (2 years). The World Bank's
Ease of Doing Business Index, 2015,
ranked India as country number 135 out
9 (2018) 1 SCC 407
36
of 190 countries on the ease of resolving
insolvency based on various indicia.”
[emphasis supplied]
51. This Court thereafter in paragraph 16 reproduced
the relevant paragraphs contained in the report of the
Bankruptcy Law Reforms Committee Report of 2015.
Thereafter, this Court reproduced all the relevant provisions
of I&B Code in paragraphs 18 to 26.
52. This Court in the case of Innoventive Industries
Ltd. (supra) thereafter elaborately discussed the scheme of
the various provisions of the I&B Code in paragraphs 27 to
32, which read thus:
“27. The scheme of the Code is to ensure
that when a default takes place, in the
sense that a debt becomes due and is not
paid, the insolvency resolution process
begins. Default is defined in Section 3(12)
in very wide terms as meaning nonpayment of a debt once it becomes due and
payable, which includes nonpayment of
even part thereof or an instalment
amount. For the meaning of “debt”, we
have to go to Section 3(11), which in turn
tells us that a debt means a liability of
obligation in respect of a “claim” and for
the meaning of “claim”, we have to go
back to Section 3(6) which defines “claim”
37
to mean a right to payment even if it is
disputed. The Code gets triggered the moment default is of rupees one lakh or
more (Section 4). The corporate insolvency resolution process may be triggered
by the corporate debtor itself or a financial creditor or operational creditor. A distinction is made by the Code between
debts owed to financial creditors and operational creditors. A financial creditor
has been defined under Section 5(7) as a
person to whom a financial debt is owed
and a financial debt is defined in Section
5(8) to mean a debt which is disbursed
against consideration for the time value
of money. As opposed to this, an operational creditor means a person to whom
an operational debt is owed and an operational debt under Section 5(21) means a
claim in respect of provision of goods or
services.
28. When it comes to a financial creditor
triggering the process, Section 7 becomes
relevant. Under the Explanation to Section 7(1), a default is in respect of a financial debt owed to any financial creditor of the corporate debtor — it need not
be a debt owed to the applicant financial
creditor. Under Section 7(2), an application is to be made under subsection (1)
in such form and manner as is prescribed, which takes us to the Insolvency
and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under
Rule 4, the application is made by a fi
38
nancial creditor in Form 1 accompanied
by documents and records required
therein. Form 1 is a detailed form in 5
parts, which requires particulars of the
applicant in Part I, particulars of the corporate debtor in Part II, particulars of the
proposed interim resolution professional
in Part III, particulars of the financial
debt in Part IV and documents, records
and evidence of default in Part V. Under
Rule 4(3), the applicant is to dispatch a
copy of the application filed with the adjudicating authority by registered post or
speed post to the registered office of the
corporate debtor. The speed, within
which the adjudicating authority is to ascertain the existence of a default from the
records of the information utility or on
the basis of evidence furnished by the financial creditor, is important. This it
must do within 14 days of the receipt of
the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not
occurred in the sense that the “debt”,
which may also include a disputed claim,
is not due. A debt may not be due if it is
not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the
application must be admitted unless it
is incomplete, in which case it may
give notice to the applicant to rectify
the defect within 7 days of receipt of a
39
notice from the adjudicating authority.
Under subsection (7), the adjudicating
authority shall then communicate the order passed to the financial creditor and
corporate debtor within 7 days of admission or rejection of such application, as
the case may be.
29. The scheme of Section 7 stands in
contrast with the scheme under Section 8
where an operational creditor is, on the
occurrence of a default, to first deliver a
demand notice of the unpaid debt to the
operational debtor in the manner provided in Section 8(1) of the Code. Under
Section 8(2), the corporate debtor can,
within a period of 10 days of receipt of
the demand notice or copy of the invoice
mentioned in subsection (1), bring to the
notice of the operational creditor the existence of a dispute or the record of the
pendency of a suit or arbitration proceedings, which is preexisting—i.e. before
such notice or invoice was received by the
corporate debtor. The moment there is
existence of such a dispute, the operational creditor gets out of the clutches of
the Code.
30. On the other hand, as we have seen,
in the case of a corporate debtor who
commits a default of a financial debt, the
adjudicating authority has merely to see
the records of the information utility or
other evidence produced by the financial
creditor to satisfy itself that a default has
40
occurred. It is of no matter that the debt
is disputed so long as the debt is “due”
i.e. payable unless interdicted by some
law or has not yet become due in the
sense that it is payable at some future
date. It is only when this is proved to the
satisfaction of the adjudicating authority
that the adjudicating authority may reject
an application and not otherwise.
31. The rest of the insolvency resolution
process is also very important. The entire
process is to be completed within a period
of 180 days from the date of admission of
the application under Section 12 and can
only be extended beyond 180 days for a
further period of not exceeding 90 days if
the committee of creditors by a voting of
75% of voting shares so decides. It can be
seen that time is of essence in seeing
whether the corporate body can be put
back on its feet, so as to stave off liquidation.
32. As soon as the application is admitted, a moratorium in terms of Section 14
of the Code is to be declared by the adjudicating authority and a public announcement is made stating, inter alia,
the last date for submission of claims and
the details of the interim resolution professional who shall be vested with the
management of the corporate debtor and
be responsible for receiving claims. Under
Section 17, the erstwhile management of
the corporate debtor is vested in an in
41
terim resolution professional who is a
trained person registered under Chapter
IV of the Code. This interim resolution
professional is now to manage the operations of the corporate debtor as a going
concern under the directions of a committee of creditors appointed under Section 21 of the Act. Decisions by this committee are to be taken by a vote of not
less than 75% of the voting share of the
financial creditors. Under Section 28, a
resolution professional, who is none other
than an interim resolution professional
who is appointed to carry out the resolution process, is then given wide powers to
raise finances, create security interests,
etc. subject to prior approval of the committee of creditors.”
[emphasis supplied]
53. After discussing the relevant provisions of I&B
Code, this Court observed thus:
“33. Under Section 30, any person who
is interested in putting the corporate
body back on its feet may submit a resolution plan to the resolution professional, which is prepared on the basis
of an information memorandum. This
plan must provide for payment of insolvency resolution process costs,
management of the affairs of the corporate debtor after approval of the
plan, and implementation and supervi
42
sion of the plan. It is only when such
plan is approved by a vote of not less
than 75% of the voting share of the financial creditors and the adjudicating
authority is satisfied that the plan, as
approved, meets the statutory requirements mentioned in Section 30, that it
ultimately approves such plan, which
is then binding on the corporate
debtor as well as its employees, members, creditors, guarantors and other
stakeholders. Importantly, and this is a
major departure from previous legislation
on the subject, the moment the adjudicating authority approves the resolution
plan, the moratorium order passed by the
authority under Section 14 shall cease to
have effect. The scheme of the Code,
therefore, is to make an attempt, by
divesting the erstwhile management of
its powers and vesting it in a professional agency, to continue the business of the corporate body as a going
concern until a resolution plan is
drawn up, in which event the management is handed over under the plan so
that the corporate body is able to pay
back its debts and get back on its feet.
All this is to be done within a period of 6
months with a maximum extension of another 90 days or else the chopper comes
down and the liquidation process begins.”
[emphasis supplied]
43
54. It could thus be seen, that one of the dominant
objects of I&B Code is to see to it, that an attempt has to be
made to revive the Corporate Debtor and make it a running
concern. For that, a resolution applicant has to prepare a
resolution plan on the basis of the Information
Memorandum. The Information Memorandum, which is
required to be prepared in accordance with Section 29 of
I&B Code along with Regulation 36 of the Regulations, is
required to contain various details, which have been
gathered by RP after receipt of various claims in response to
the statutorily mandated public notice. The resolution plan
is required to provide for the payment of insolvency
resolution process costs, management of the affairs of the
Corporate Debtor after approval of the resolution plan; the
implementation and supervision of the resolution plan. It is
only after the Adjudicating Authority satisfies itself, that the
plan as approved by CoC with the requisite voting share of
financial creditors meets the requirement as referred to in
subsection (2) of Section 30, grants its approval to it. It is
44
only thereafter, that the said plan is binding on the
Corporate Debtor as well as its employees, members,
creditors, guarantors and other stakeholders involved in the
resolution Plan. The moratorium order passed by the
Adjudicating Authority under Section 14 shall cease to
operate, once the Adjudicating Authority approves the
resolution plan. The scheme of I&B Code therefore is, to
make an attempt, by divesting the erstwhile management of
its powers and vesting it in a professional agency, to continue the business of the Corporate Debtor as a going concern until a resolution plan is drawn up. Once the resolution plan is approved, the management is handed over under the plan to the successful applicant so that the Corporate Debtor is able to pay back its debts and get back on its
feet.
55. This Court recently in the case of Kalpraj
Dharamshi and another vs. Kotak Investment Advisors
Ltd. and another (supra) has, in detail, considered the
provisions of Sections 30 and 31 of I&B Code, the
Bankruptcy Law Reforms Committee (BLRC) Report of 2015
45
and the judgments of this Court in the case K. Sashidhar
(supra), Committee of Creditors of Essar Steel India
Limited through Authorised Signatory vs. Satish
Kumar Gupta & Ors. (supra) and Maharashtra Seamless
Limited vs. Padmanabhan Venkatesh and others (supra)
and observed thus:
“139. It is thus clear, that the
Committee was of the view, that for
deciding key economic question in the
bankruptcy process, the only one correct
forum for evaluating such possibilities,
and making a decision was, a creditors
committee, wherein all financial creditors
have votes in proportion to the magnitude
of debt that they hold. The BLRC has
observed, that laws in India in the past
have brought arms of the Government
(legislature, executive or judiciary) into
the question of bankruptcy process. This
has been strictly avoided by the
Committee and it has been provided, that
the decision with regard to appropriate
disposition of a defaulting firm, which is
a business decision, should only be made
by the creditors. It has been observed,
that the evaluation of proposals to keep
the entity as a going concern, including
decisions about the sale of business or
units, restructuring of debt, etc., are
required to be taken by the Committee of
the Financial Creditors. It has been
46
provided, that the choice of the solution
to keep the entity as a going concern will
be voted upon by CoC and there are no
constraints on the proposals that the
resolution professional can present to
CoC. The requirements, that the
resolution professional needs to confirm
to the Adjudicator, are:
(i) 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;
(ii) that the plan must explicitly
include payment to all creditors not
on the creditors committee, within a
reasonable period after the solution
is implemented; and lastly
(iii) the plan should comply with
existing laws governing the actions
of the entity while implementing the
solutions.
140. The Committee also expressed
the opinion, that there should be freedom
permitted to the overall market, to
propose solutions on keeping the entity
as a going concern. The Committee
opined, that the details as to how the
insolvency is to be resolved or as to how
the entity is to be revived, or the debt is
to be restructured will not be provided in
the I&B Code but such a decision will
come from the deliberations of CoC in
response to the solutions proposed by the
market.
47
141. This Court in the case of K.
Sashidhar (supra) observed thus:
“32. Having heard the learned
counsel for the parties, the moot
question is about the sequel of the
approval of the resolution plan by CoC
of the respective corporate debtor,
namely, KS&PIPL and IIL, by a vote of
less than seventyfive per cent of voting
share of the financial creditors; and
about the correctness of the view taken
by 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?”
(emphasis supplied)
142. After considering the judgment of
this Court in the case of Arcelormittal
India Private Limited v. Satish Kumar
Gupta46 and the relevant provisions of the
I&B Code, this court further observed
in K. Sashidhar (supra) thus:
“52. As aforesaid, upon receipt of a
“rejected” resolution plan the
adjudicating authority (NCLT) is not
expected to do anything more; but is
48
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
CoC much less 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 corporate
debtor could indefinitely continue to
enjoy the protection given under
Section 22 of the Sick Industrial
Companies Act, 1985 or under other
such enactments which has now been
forsaken. Besides, the commercial
wisdom of 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
49
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 subjectmatter expressed by them after due
deliberations in 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.”
(emphasis supplied)
143. This Court has held, that it is not
open to the Adjudicating Authority or
Appellate Authority to reckon any other
factor other than specified in Sections
30(2) or 61(3) of the I&B Code. It has
further been held, that the commercial
wisdom of 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. This Court
thus, in unequivocal terms, held, that
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
50
examination of the proposed resolution
plan and assessment made by their team
of experts. It has been held, that the
opinion expressed by CoC after due
deliberations in the meetings through
voting, as per voting shares, is a collective
business decision. It has been held, that
the legislature has consciously not
provided any ground to challenge the
“commercial wisdom” of the individual
financial creditors or their collective
decision before the Adjudicating
Authority and that the decision of CoC's
‘commercial wisdom’ is made nonjusticiable.
144. This Court in Committee of
Creditors of Essar Steel India Limited
through Authorised Signatory (supra) after
referring to the judgment of this Court in
the case of K. Sashidhar (supra) observed
thus:
“64. Thus, what is left to the
majority decision of the Committee of
Creditors is the “feasibility and
viability” of a resolution plan, which
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
51
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.”
(emphasis supplied)
145. This Court held, that what is left
to the majority decision of CoC is the
“feasibility and viability” of a resolution
plan, which is required to take into
account all aspects of the plan, including
the manner of distribution of funds
among the various classes of creditors. It
has further been held, that CoC is
entitled to suggest a modification to the
prospective resolution applicant, so that
carrying on the business of the Corporate
Debtor does not become impossible,
52
which suggestion may, in turn, be
accepted by the resolution applicant with
a consequent modification as to
distribution of funds, etc. It has been
held, that what is important is, the
commercial wisdom of the 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.
146. The view taken in the case of K.
Sashidhar (supra) and Committee of
Creditors of Essar Steel India Limited
through Authorised Signatory (supra) has
been reiterated by another three Judges
Bench of this Court in the case
of Maharashtra Seamless Limited (supra).
147. In all the aforesaid three
judgments of this Court, the scope of
jurisdiction of the Adjudicating Authority
(NCLT) and the Appellate Authority
(NCLAT) has also been elaborately
considered. It will be relevant to refer to
paragraph 55 of the judgment in the case
of K. Sashidhar (supra), which reads
thus:
“55. 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 per cent 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
53
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 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
54
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.”
148. It has been held, that in an
enquiry under Section 31, the limited
enquiry that the Adjudicating Authority is
permitted is, as to 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 prescribed
manner,
(iii) the management of the affairs of
the corporate debtor,
(iv) the implementation and
supervision of the resolution plan,
(v) the plan 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.
55
149. It will be further relevant to refer
to the following observations of this Court
in K. Sashidhar (supra):
57. …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 NCLT or NCLAT as noticed
earlier, have not made the
commercial decision exercised by
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 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
56
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 CoC;
and not for approving the resolution
plan which has been disapproved or
deemed to have been rejected by CoC
in exercise of its business decision.”
[emphasis supplied]
150. It will therefore be clear, that this
Court, in unequivocal terms, held, that
the appeal is a creature of statute and
that the statute has not invested
jurisdiction and authority either with
NCLT or NCLAT, to review the commercial
decision exercised by CoC of approving
the resolution plan or rejecting the same.
151. The position is clarified by the
following observations in paragraph 59 of
the judgment in the case of K.
Sashidhar (supra), which reads thus:
“59. 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
financial creditors…..”
152. This Court in Committee of
Creditors of Essar Steel India Limited
through Authorised Signatory (supra) after
57
reproducing certain paragraphs in K.
Sashidhar (supra) observed thus:
“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”
153. It can thus be seen, that this
Court has clarified, that the limited
judicial review, which is available, can in
no circumstance trespass upon a
business decision arrived at by the
majority of CoC.
154. In the case of Maharashtra
Seamless Limited (supra), NCLT had
approved the plan of appellant therein
with regard to CIRP of United Seamless
Tubulaar (P) Ltd. In appeal, NCLAT
directed, that the appellant therein
should increase upfront payment to Rs.
597.54 crore to the “financial creditors”,
“operational creditors” and other
creditors by paying an additional amount
of Rs. 120.54 crore. NCLAT further
directed, that in the event the “resolution
applicant” failed to undertake the
payment of additional amount of Rs.
120.54 crore in addition to Rs. 477 crore
and deposit the said amount in escrow
58
account within 30 days, the order of
approval of the ‘resolution plan’ was to be
treated to be set aside. While allowing the
appeal and setting aside the directions of
NCLAT, this Court observed thus:
“30. The appellate authority has, in
our opinion, proceeded on equitable
perception rather than commercial
wisdom. On the face of it, release of
assets at a value 20% below its
liquidation value arrived at by the
valuers seems inequitable. Here, we
feel the Court ought to cede ground to
the commercial wisdom of the creditors
rather than assess the resolution plan
on the basis of quantitative analysis.
Such is the scheme of the Code.
Section 31(1) of the Code lays down in
clear terms that for final approval of a
resolution plan, the adjudicating
authority has to be satisfied that the
requirement of subsection (2) of
Section 30 of the Code has been
complied with. The proviso to Section
31(1) of the Code stipulates the other
point on which an adjudicating
authority has to be satisfied. That
factor is that the resolution plan has
provisions for its implementation. The
scope of interference by the
adjudicating authority in limited
judicial review has been laid down
in Essar Steel [Essar Steel India Ltd.
Committee of Creditors v. Satish Kumar
Gupta, (2020) 8 SCC 531], the relevant
passage (para 54) of which we have
reproduced in earlier part of this
judgment. The case of MSL in their
59
appeal is that they want to run the
company and infuse more funds. In
such circumstances, we do not think
the appellate authority ought to have
interfered with the order of the
adjudicating authority in directing the
successful resolution applicant to
enhance their fund inflow upfront.”
155. This Court observed, that the
Court ought to cede ground to the
commercial wisdom of the creditors
rather than assess the resolution plan on
the basis of quantitative analysis. This
Court clearly held, that the appellate
authority ought not to have interfered
with the order of the adjudicating
authority by directing the successful
resolution applicant to enhance their
fund inflow upfront.
156. It would thus be clear, that the
legislative scheme, as interpreted by
various decisions of this Court, is
unambiguous. The commercial wisdom of
CoC is not to be interfered with, excepting
the limited scope as provided under
Sections 30 and 31 of the I&B Code.”
56. Another three Judges Bench of this Court in the
case of Karad Urban Cooperative Bank Ltd. vs.
Swwapnil Bhingardevay & Ors. (supra), taking a similar
view, has observed thus:
60
“14. The principles laid down in the
aforesaid decisions, make one thing very
clear. If all the factors that need to be
taken into account for determining
whether or not the corporate debtor can
be kept running as a going concern have
been placed before the Committee of
Creditors and CoC has taken a conscious decision to approve the resolution
plan, then the adjudicating authority will
have to switch over to the hands off
mode. It is not the case of the corporate
debtor or its promoter/Director or anyone else that some of the factors which
are crucial for taking a decision regarding the viability and feasibility, were not
placed before CoC or the resolution professional….”
57. It could thus be seen, that the legislature has
given paramount importance to the commercial wisdom of
CoC and the scope of judicial review by Adjudicating
Authority is limited to the extent provided under Section 31
of I&B Code and of the Appellate Authority is limited to the
extent provided under subsection (3) of Section 61 of the
I&B Code, is no more res integra.
58. Bare reading of Section 31 of the I&B Code would
also make it abundantly clear, that once the resolution plan
is approved by the Adjudicating Authority, after it is
61
satisfied, that the resolution plan as approved by CoC meets
the requirements as referred to in subsection (2) of Section
30, it shall be binding on the Corporate Debtor and its
employees, members, creditors, guarantors and other
stakeholders. Such a provision is necessitated since one of
the dominant purposes of the I&B Code is, revival of the
Corporate Debtor and to make it a running concern.
59. The resolution plan submitted by successful
resolution applicant is required to contain various
provisions, viz., provision for payment of insolvency
resolution process costs, provision for payment of debts of
operational creditors, which shall not be less than the
amount to be paid to such creditors in the event of
liquidation of the Corporate Debtor under section 53; or 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. The
resolution plan is also required to provide for the payment
of debts of financial creditors, who do not vote in favour of
62
the resolution plan, which also shall not be less than the
amount to be paid to such creditors in accordance with subsection (1) of section 53 in the event of a liquidation of the
Corporate Debtor. Explanation 1 to clause (b) of subsection (2) of Section 30 of the I&B Code clarifies for the
removal of doubts, that a distribution in accordance with
the provisions of the said clause shall be fair and equitable
to such creditors. The resolution plan is also required to
provide for the management of the affairs of the Corporate
Debtor after approval of the resolution plan and also the
implementation and supervision of the resolution plan.
Clause (e) of subsection (2) of Section 30 of I&B Code also
casts a duty on RP to examine, that the resolution plan does
not contravene any of the provisions of the law for the time
being in force.
60. Perusal of Section 29 of the I&B Code read with
Regulation 36 of the Regulations would reveal, that it
requires RP to prepare an information memorandum
containing various details of the Corporate Debtor so that
the resolution applicant submitting a plan is aware of the
63
assets and liabilities of the Corporate Debtor, including the
details about the creditors and the amounts claimed by
them. It is also required to contain the details of guarantees
that have been given in relation to the debts of the corporate
debtor by other persons. The details with regard to all
material litigation and an ongoing investigation or
proceeding initiated by Government and statutory
authorities are also required to be contained in the
information memorandum. So also the details regarding the
number of workers and employees and liabilities of the
Corporate Debtor towards them are required to be contained
in the information memorandum.
61. All these details are required to be contained in
the information memorandum so that the resolution
applicant is aware, as to what are the liabilities, that he may
have to face and provide for a plan, which apart from
satisfying a part of such liabilities would also ensure, that
the Corporate Debtor is revived and made a running
establishment. The legislative intent of making the
resolution plan binding on all the stakeholders after it gets
64
the seal of approval from the Adjudicating Authority upon
its satisfaction, that the resolution plan approved by CoC
meets the requirement as referred to in subsection (2) of
Section 30 is, that after the approval of the resolution plan,
no surprise claims should be flung on the successful
resolution applicant. The dominant purpose is, that he
should start with fresh slate on the basis of the resolution
plan approved.
62. This aspect has been aptly explained by this
Court in the case of Committee of Creditors of Essar
Steel India Limited through Authorised Signatory
(supra).
“107. For the same reason, the impugned NCLAT judgment [Standard Chartered Bank v. Satish Kumar Gupta, 2019
SCC OnLine NCLAT 388] 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
submitted by him has been accepted as
65
this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective
resolution applicant who would 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, NCLAT judgment must also be set
aside on this count.”
63. In view of this legal position, we could have very
well stopped here and held, that, the observation made by
NCLAT in the appeal filed by EARC to the effect, that EARC
was entitled to take recourse to such remedies as are
available to it in law, is impermissible in law.
64. As held by this Court in the case of Pr.
Commissioner of Income Tax vs. Monnet Ispat and
Energy Ltd.10
, in view of provisions of Section 238 of I&B
Code, the provisions thereof will have an overriding effect, if
there is any inconsistency with any of the provisions of the
law for the time being in force or any instrument having
10 SLP(C) No.6483/2018 (order dated 10.8.2018)
66
effect by virtue of any such law. As such, the observations
made by NCLAT to the aforesaid effect, if permitted to
remain, would frustrate the very purpose for which the I&B
Code is enacted.
65. However, in Civil Appeal arising out of Special
Leave Petition (Civil) No.11232 of 2020, Writ Petition (Civil)
No.1177 of 2020 and Civil Appeals arising out of Special
Leave Petition (Civil) Nos. 71477150 of 2020, the issue with
regard to the statutory claims of the State Government and
the Central Government in respect of the period prior to the
approval of resolution plan by NCLT, will have to be
considered.
66. Vide Section 7 of Act No.26 of 2019 (vide S.O.
2953(E), dated 16.8.2019 w.e.f. 16.8.2019), the following
words have been inserted in Section 31 of the I&B Code.
“including the Central Government, any
State Government or any local authority
to whom a debt in respect of the payment
of dues arising under any law for the time
being in force, such as authorities to
whom statutory dues are owed”
67. As such, with respect to the proceedings, which
arise after 16.8.2019, there will be no difficulty. After the
67
amendment, any debt in respect of the payment of dues
arising under any law for the time being in force including
the ones owed to the Central Government, any State
Government or any local authority, which does not form a
part of the approved resolution plan, shall stand
extinguished.
68. The only question, which remains is, what
happens to such dues if they pertain to a period wherein
Section 7 petitions have been admitted prior to 16.8.2019.
69. To answer the said question, we will have to
consider, as to whether the said amendment is
clarificatory/declaratory in nature or a substantive one. If it
is held, that it is declaratory or clarificatory in nature, it will
have to be held, that such an amendment is retrospective in
nature and exists on the statute book since inception.
However, if the answer is otherwise, the amendment will
have to be held to be prospective in nature, having force
from the date on which the amendment is effected in the
statute.
70. It will be relevant to refer to the “Statement of
Objects and Reasons” (hereafter referred to as “SOR”) of the
68
Insolvency and Bankruptcy Code (Amendment) Bill, 2019,
which read thus:
“The Insolvency and Bankruptcy Code,
2016 (the Code) was enacted with a view
to consolidate and amend the laws
relating to reorganisation and insolvency
resolution of corporate persons,
partnership firms and individuals in a
timebound 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 or priority of payment of
Government dues and to establish an
Insolvency and Bankruptcy Board of
India.
2. The Preamble to the Code lays
down the objects of the Code to include
“the insolvency resolution” in a time
bound manner for maximisation of value
of assets in order to balance the interests
of all the stakeholders. Concerns have
been raised that in some cases extensive
litigation is causing undue delays, which
may hamper the value maximisation.
There is a need to ensure that all
creditors are treated fairly, without
unduly burdening the Adjudicating
Authority whose role is to ensure that the
resolution plan complies with the
provisions of the Code. Various
stakeholders have suggested that if the
creditors were treated on an equal
footing, when they have different preinsolvency entitlements, it would
69
adversely impact the cost and availability
of credit. Further, views have also been
obtained so as to bring clarity on the
voting pattern of financial creditors
represented by the authorised
representative.
3. In view of the aforesaid difficulties
and in order to fill the critical gaps in the
corporate insolvency framework, it has
become necessary to amend certain
provisions of the Insolvency and
Bankruptcy Code.The Insolvency and
Bankruptcy Code (Amendment) Bill,
2019, inter alia, provides for the
following, namely:–
(a) ……………………………………..;
(b) ……………………………………..;
(c) ……………………………………..;
(d) ……………………………………..;
(e) ……………………………………;
(f) to amend subsection (1) of
section 31 of the Code to clarify that
the resolution plan approved by the
Adjudicating Authority shall also be
binding on the Central Government,
any State Government or any local
authority to whom a debt in respect of
payment of dues arising under any
law for the time being in force, such
as authorities to whom statutory dues
are owed, including tax authorities;
(g) ………………………………..”
[emphasis supplied]
71. Perusal of the SOR would reveal, that one of the
prime objects of I&B Code was to provide for
70
implementation of insolvency resolution process in a time
bound manner for maximisation of value of assets in order
to balance the interests of all stakeholders. However, it was
noticed, that in some cases there was extensive litigation
causing undue delays resultantly hampering the value
maximisation. It was also found necessary to ensure, that
all creditors are treated fairly. It was therefore in view of the
various difficulties faced and in order to fill the critical gaps
in the corporate insolvency framework, it was necessary to
amend certain provisions of the I&B Code. Clause (f) of
para 3 of the SOR of the Insolvency and Bankruptcy Code
(Amendment) Bill, 2019 would amply make it clear, that the
legislative intent in amending subsection (1) of Section 31
of I&B Code was to clarify, that the resolution plan approved
by the Adjudicating Authority shall also be binding on the
Central Government, any State Government or any local
authority to whom a debt is owed in respect of payment of
dues arising under any law for the time being in force, such
as authorities to whom statutory dues are owed, including
tax authorities.
71
72. In the Rajya Sabha debates, on 29.7.2019, when
the Bill for amending I&B Code came up for discussion,
there were certain issues raised by certain Members. While
replying to the issues raised by certain Members, the
Hon’ble Finance Minister stated thus:
“IBC has actually an overriding effect. For
instance, you asked whether IBC will
override SEBI. Section 238 provides that
IBC will prevail in case of inconsistency
between two laws. Actually, Indian courts
will have to decide, in specific cases,
depending upon the material before
them, but largely, yes, it is IBC. […]
There is also this question about
indemnity for successful resolution
applicant. The amendment now is clearly
making it binding on the Government. It
is one of the ways in which we are
providing that. The Government will not
raise any further claim. The Government
will not make any further claim after
resolution plan is approved. So, that is
going to be a major, major sense of
assurance for the people who are using
the resolution plan. Criminal matters
alone would be proceeded against
individuals and not company. There will
be no criminal proceedings against
successful resolution applicant. There
will be no criminal proceedings against
successful resolution applicant for fraud
by previous promoters. So, I hope that is
72
absolutely clear. I would want all the hon.
Members to recognize this message and
communicate further that this Code,
therefore, gives that comfort to all new
bidders. So now, they need not be scared
that the taxman will come after them for
the faults of the earlier promoters. No.
Once the resolution plan is accepted, the
earlier promoters will be dealt with as
individuals for their criminality but not
the new bidder who is trying to restore
the company. So, that is very clear
……………..
(emphasis supplied)”
73. It could thus be seen, that in the speech the
Hon’ble Finance Minister has categorically stated, that
Section 238 provides that I&B Code will prevail in case of
inconsistency between two laws. She also stated, that there
was question about indemnity for successful resolution
applicant and that the amendment was clearly making it
binding on the Government. She stated, that the
Government will not make any further claim after resolution
plan is approved. So, that is going to be a major sense of
assurance for the people who are using the resolution plan.
She has categorically stated, that she would want all the
Hon’ble Members to recognize this message and
73
communicate further that I&B Code gives that comfort to all
new bidders. They need not be scared that the taxman will
come after them for the faults of the earlier promoters. She
further states, that once the resolution plan is accepted, the
earlier promoters will be dealt with as individuals for their
criminality but not the new bidder who is trying to restore
the company.
74. This Court in the case of K.P. Varghese v.
Income Tax Officer, Ernakulam and Another11 had an
occasion to consider the question, as to whether the speech
made by the Hon’ble Finance Minister, explaining the
reason for the introduction of the Bill could be referred for
the purpose of ascertaining the mischief sought to be
remedied by the legislation. This Court observed thus:
“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
11 (1981) 4 SCC 173
74
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 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. The speech made
by the Finance Minister while moving the
amendment introducing subsection (2)
clearly states what were the circumstances in which subsection (2) came to
be passed, what was the mischief for
which Section 52 as it then stood did not
provide and which was sought to be
remedied by the enactment of subsection
(2) and why the enactment of subsection
(2) was found necessary…..”
75
75. This Court in the case of Union of India and
others vs. Martin Lottery Agencies Ltd.12
, in paragraph
38 has relied on the aforesaid observations made in the
judgment of K.P. Varghese (supra).
76. It could thus be seen, that the speech made by
Hon’ble Finance Minister while explaining the amendment
could be referred to for ascertaining what was the reason for
moving the Bill. The speech can be used for finding out:
(1) what were the circumstances in which the
amendment was carried out;
(2) what was the mischief for which the unamended
section did not provide; and
(3) what was sought to be remedied by amended
enactment.
77. It is clear, that the mischief, which was noticed
prior to amendment of Section 31 of I&B Code was, that
though the legislative intent was to extinguish all such
debts owed to the Central Government, any State
Government or any local authority, including the tax
authorities once an approval was granted to the resolution
plan by NCLT; on account of there being some ambiguity,
12 (2009) 12 SCC 209
76
the State/Central Government authorities continued with
the proceedings in respect of the debts owed to them. In
order to remedy the said mischief, the legislature thought it
appropriate to clarify the position, that once such a
resolution plan was approved by the Adjudicating Authority,
all such claims/dues owed to the State/Central Government
or any local authority including tax authorities, which were
not part of the resolution plan shall stand extinguished.
78. In Justice G.P. Singh treatise on “The principles
of Statutory Interpretation”, 14th Edition, Revised by Justice
A.K. Patnaik, former Judge of this Court, it is observed
thus:
“
(i) Declaratory Statutes
The presumption against retrospective operation is
not applicable to declaratory statutes. As stated in
CRAIES and approved by the Supreme Court:
“For modern purposes a declaratory Act may be
defined as an Act to remove doubts existing as to
the common law, or the meaning or effect of any
statute. Such Acts are usually held to be
retrospective. The usual reason for passing a
declaratory Act is to set aside what Parliament
deems to have been a judicial error, whether in the
statement of the common law or in the
interpretation of statutes. Usually, if not invariably,
such an Act contains a preamble, and also the word
77
‘declared’ as well as the word ‘enacted’. ”13 But the
use of the words ‘it is declared’ is not conclusive
that the Act is declaratory for these words may, at
times, be used to introduce new rules of law and
the Act in the latter case will only be amending the
law and will not necessarily be retrospective14. In
determining, therefore, the nature of the Act,
regard must be had to the substance rather than to
the form15. If a new Act is ‘to explain’ an earlier
Act, it would be without object unless construed
retrospective16. An explanatory Act is generally
passed to supply an obvious omission or to clear
up doubts as to the meaning of the previous Act17
.
It is well settled that if a statute is curative or
merely declaratory of the previous law
retrospective operation is generally intended18. The
language ‘shall be deemed always to have meant’19
or ‘shall be deemed never to have included’20 is
declaratory, and is in plain terms retrospective. In
13 CRAIES : Statute Law, 7th Edition, p. 58, approved in Central Bank of India v.
Their Workmen, AIR 1960 SC 12, p. 27 : (1960) 1 SCR 200. See Jones v. Bennet,
(1890) 63 LT 705, p. 708 (LORD COLERIDGE, C.J.); Madras Marine & Co. v. State of
Madras, (1986) 3 SCC 552, p. 563 : AIR 1986 SC 1760; Satnam Overseas (Export) v.
State of Haryana, AIR 2003 SC 66, p. 84 : (2003) 1 SCC 561.
14 Harding v. Queensland Stamp Commissioners, (1898) AC 769, pp. 775, 776 (PC)
15 Ibid
16 R. V. Dursley (Inhabitants), (1832) 110 ER 168, p. 169
17 Keshavlal Jethalal Shah v. Mohanlal, AIR 1968 SC 1336, p. 1339 : (1968) 3 SCR
623. The question whether an ‘explanation’ added by an amending Act is really
explanatory or not would depend on its construction. In S. K. Govindan and Sons v.
Commr. Of Incometax, Cochin, AIR 2001 SC 254 p. 260 : (2001) 1 SCC 460 : (2001)
247 ITR 192, Explanation 2 inserted in section 139(8) of the Incometax Act, 1961
was held to be clarificatory. But in Birla Cement Works v. The Central Board of Direct
Taxes, JT 2001 (3) SC 256, p. 262 : (2001) 9 SCC 35 : AIR 2001 SC 1080, it was
held that mere addition of an ‘explanation’ by an amending Act in a taxing Act
cannot, without more, be held to be clarificatory and retrospective. In Commissioner
of Incometax Bhopal v. Shelly Products, (2003) 5 SCC 461, pp. 477, 478 : AIR 2003
SC 2532 provisos (a) and (b) added in section 240 of the Incometax Act, 1961 by
amending Act which came into force on 141989 were held to be clarificatory and
retrospective.
18 Channan Singh v. Jai Kuar (Smt.), AIR 1970 SC 349, p. 349, p. 351 : (1969) 2 SCC
429
19 CIT v. Straw Products, AIR 1966 SC 1113 : 1966 (2) SCR 881
20 Union of India v. S. Muthyam Reddy, JT 1999 (7) SC 596, p. 597 : 1999 (7) SCC
545 : AIR 1994 SC 3881
78
the absence of clear words indicating that the
amending Act is declaratory, it would not be so
construed when the pre-amended provision was
clear and unambiguous21. An amending Act may be
purely clarificatory to clear a meaning of a
provision of the principal Act which was already
implicit. A clarificatory amendment of this nature
will have retrospective effect and, therefore, if the
principal Act was existing law when the
constitution came into force, the amending Act
also will be part of the existing law22
.
The above statement of the law relating to the
nature and effect of a declaratory statute has been
quoted with approval by the Supreme Court from
earlier editions of this book in a number of cases23
.
“In Mithilesh Kumari v. Prem Bihari Khare24
,
section 4 of the Benami Transactions (Prohibition)
Act, 1988 was, it is submitted, wrongly held to be
an Act declaratory in nature for it was not passed
to clear any doubt existing as to the common law
or the meaning or effect of any statute. The
conclusion, however, that section 4 applied also to
past benami transactions may be supportable on
the language used in the section.” These
observations and criticism of Mithilesh Kumari’s
case also received the approval in R. Rajgopal
Reddy v. Padmini Chandrasekharan25
, where the
Supreme Court after quoting them (from 5th
21 Sakuru v. Tanoji, (1985) 3 SCC 590, p. 594 : AIR 1985 SC 1279
22 Punjab Traders v. State of Punjab, AIR 1990 SC 2300, p. 2304 : 1991 (1) SCC 86
23 R. Rajgopal Reddy v. Padmini Chandrasekharan, 1995 (1) Scale 692, p. 704 : AIR
1996 SC 238, p. 246 : (1995) 2 SCC 630; Allied Motors (P. ) Ltd. v. CIT, AIR 1997 SC
1361, pp. 1366, 1367 : 1997 (3) SCC 472; CIT v. Podar Cement Pvt. Ltd., AIR 1997
SC 2523, pp. 2537, 2538 : 1997 (5) SCC 482; Shyam Sunder v. Ram Kumar, AIR
2001 SC 2472, p. 2487 : (2001) 8 SCC 24; Zile Singh v. State of Haryana, (2004) 8
SCC 1, p. 9 : AIR 2004 SC 5100, pp. 5103, 5104; Commissioner of Income Tax I,
Ahmedabad v. Gold Coin Health Food Pvt. Ltd., (2008) 9 SCC 622 paras 19, 20 :
(2009) 9 JT 312. See further S. B. Bhattacharjee v. S. D. Majumdar, AIR 2007 SC
2102 (paras 26 to 29) : (2007) 7 JT 381.
24 AIR 1989 SC 1247, p. 1255 : 1989 (2) SCC 95
25 1995 (1) Scale 692 : 1995 AIR SCW 1422 : AIR 1996 SC 238
79
Edition pp. 315, 316) said : “No exception can be
taken to the above observations”.26
A proviso added from 1.4.1988 to section 43 B
inserted in the Income Tax Act, 1961 from
1.4.1984 came up for consideration in Allied
Motors(P.) Ltd. v. Commissioner of Income-tax27
and it was given retrospective effect from the
inception of the section on the reasoning that the
proviso was added to remedy unintended
consequences and supply an obvious omission so
that the section may be given a reasonable
interpretation and that in fact the amendment to
insert the proviso would not serve its object unless
it is construed as retrospective. In Commissioner
of Income-Tax, Bombay v. Podar Cement Pvt. Ltd.,
28the Supreme Court held that amendments
introduced by the Finance Act, 1987 in so far they
related to section 27(iii), (iiia) and (iiib) which
redefined the expression ‘owner of house
property’, in respect of which there was a sharp
divergence of opinion amongst the High Courts,
was clarificatory and declaratory in nature and
consequently retrospective. Similarly, in Brij
Mohan Das Laxman Das v. Commissioner of
Income – tax29
. Explanation 2 added to section 40
of the Income-tax Act, 1961 from 1.4.1985 on a
question on which there was a divergence of
opinion was held to be declaratory in nature and,
therefore, retrospective. And in Zile Singh v. State
26 Ibid, p. 704 (Scale) : p. 246 (AIR)
27 AIR 1997 Sc 1361, pp. 1366, 1367 : 1997 (3) SCC 472; Similarly in Commissioner
of Income Tax v. Suresh N. Gupta, (2008) 4 SCC 362 paras 38 and 39 : AIR 2008 SC
572, proviso inserted in section 113 of the Incometax Act with effect from 162002
was held to be clarificatory and retrospective. Again in Commissioner of Income Tax
v. Alom Extensions Ltd., (2010) 1 SCC 489 : (2009) 14 JT 441 deletion of a second
proviso and consequent amendment in second proviso to section 43B of Incometax
Act, 1961 by the Finance Act, 2003 was held to be curative and retrospective.
28 AIR 1997 SC 2523, p. 2538 : (1997) 5 SCC 482.
29 AIR 1997 SC 1651, p. 1654 : 1997 (1) SCC 352; Affirmed in Suwalal Anandlal
Jain v. Commr. Of Incometax, AIR 1997 SC 1279 : (1997) 4 SCC 89 and
Commissioner of Incometax Bombay v. Kanji Shivji and co., AIR 2000 SC 774 : (2000)
2 SCC 253. See further cases in note 42, supra.
80
of Haryana, 30substitution of the word ‘upto’ for
the word ‘after’ in the proviso to section 13A
(added in 1994) in Haryana Municipal Act, 1973
by the Haryana Municipal (Second Amendment)
Act, 1994 was held to be correction of an obvious
drafting error to bring about the text in conformity
with the legislative intent and, therefore,
retrospective. Even without the amendment of the
proviso, the court in all probability would have
read and interpreted the section as corrected by the
amendment31.”
79. In the case of Zile Singh vs. State of Haryana
and others32
, this Court had an occasion to consider the
provisions of Section 13A of the Haryana Municipal Act,
1973, which, prior to amendment, read thus:
“13A. Disqualification for membership.—
(1) A person shall be disqualified for being
chosen as and for being a member of a municipality—
***
(c) if he has more than two living children:
Provided that a person having more than
two children on or after the expiry of one
year of the commencement of this Act, shall
not be deemed to be disqualified.
***”
[emphasis supplied]
30 (2004) 8 SCC 1 : AIR 2004 SC 5100
31 Ibid, p. 23 (SCC).
32 (2004) 8 SCC 1
81
80. The faulty drafting in the provision was capable of
being interpreted, that the legislative embargo imposed on a
person from procreating and giving birth to a third child in
the context of holding the office of a member of a
municipality remained in operation for a period of one year
only and thereafter it was lifted. It could be interpreted, that
on the date on which Section 13A was brought on the
statute book i.e. dated 5.4.1994, even if a person became
disqualified, the disqualification ceased to operate and he
became qualified once again to contest the election and hold
the office of member of a municipality on the expiry of one
year from 541994. After realizing the error, Section 13A
came to be amended as under:
“2. In the proviso to clause (c) of subsection (1) of Section 13A of the Haryana
Municipal Act, 1973 (hereinafter called
the principal Act), for the word ‘after’,
the word ‘upto’ shall be substituted.”
[emphasis supplied]
81. This Court while observing, that the amendment
was clarificatory in nature, held thus:
82
“14. The presumption against retrospective operation is not applicable to
declaratory statutes…. In determining, therefore, the nature of the Act,
regard must be had to the substance
rather than to the form. If a new Act
is “to explain” an earlier Act, it would
be without object unless construed retrospectively. An explanatory Act is
generally passed to supply an obvious
omission or to clear up doubts as to
the meaning of the previous Act. It is
well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended…. An amending Act
may be purely declaratory to clear a
meaning of a provision of the principal Act which was already implicit. A
clarificatory amendment of this nature
will have retrospective effect (ibid., pp.
46869).
15. Though retrospectivity is not to be
presumed and rather there is presumption against retrospectivity, according to
Craies (Statute Law, 7th Edn.), it is open
for the legislature to enact laws having
retrospective operation. This can be
achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication
from the language employed that the legislature intended a particular section to
have a retrospective operation, the courts
83
will give it such an operation. In the absence of a retrospective operation having been expressly given, the courts
may be called upon to construe the
provisions and answer the question
whether the legislature had sufficiently expressed that intention giving the statute retrospectivity. Four
factors are suggested as relevant: (i)
general scope and purview of the
statute; (ii) the remedy sought to be
applied; (iii) the former state of the
law; and (iv) what it was the legislature contemplated. (p. 388) The rule
against retrospectivity does not extend to
protect from the effect of a repeal, a privilege which did not amount to accrued
right. (p. 392)
16. Where a statute is passed for the
purpose of supplying an obvious omission in a former statute or to “explain” a former statute, the subsequent statute has relation back to the
time when the prior Act was passed.
The rule against retrospectivity is inapplicable to such legislations as are
explanatory and declaratory in nature. A classic illustration is the case
of Attorney General v. Pougett [(1816) 2
Price 381 : 146 ER 130] (Price at p. 392).
By a Customs Act of 1873 (53 Geo. 3, c.
33) a duty was imposed upon hides of 9s
4d, but the Act omitted to state that it
was to be 9s 4d per cwt., and to remedy
84
this omission another Customs Act (53
Geo. 3, c. 105) was passed later in the
same year. Between the passing of these
two Acts some hides were exported, and it
was contended that they were not liable
to pay the duty of 9s 4d per cwt., but
Thomson, C.B., in giving judgment for the
Attorney General, said: (ER p. 134)
“The duty in this instance was, in
fact, imposed by the first Act; but the
gross mistake of the omission of the
weight, for which the sum expressed
was to have been payable, occasioned
the amendment made by the subsequent Act: but that had reference to
the former statute as soon as it
passed, and they must be taken together as if they were one and the
same Act;” (Price at p. 392)
17. Maxwell states in his work on Interpretation of Statutes (12th Edn.) that the
rule against retrospective operation is a
presumption only, and as such it “may be
overcome, not only by express words in
the Act but also by circumstances sufficiently strong to displace it” (p. 225). If
the dominant intention of the legislature
can be clearly and doubtlessly spelt out,
the inhibition contained in the rule
against perpetuity becomes of doubtful
applicability as the “inhibition of the rule”
is a matter of degree which would “vary
secundum materiam” (p. 226). Sometimes,
where the sense of the statute demands it
or where there has been an obvious mis
85
take in drafting, a court will be prepared
to substitute another word or phrase for
that which actually appears in the text of
the Act (p. 231).
18. In a recent decision of this Court
in National Agricultural Coop. Marketing
Federation of India Ltd. v. Union of India [(2003) 5 SCC 23] it has been held
that there is no fixed formula for the
expression of legislative intent to give
retrospectivity to an enactment. Every
legislation whether prospective or retrospective has to be subjected to the
question of legislative competence. The
retrospectivity is liable to be decided
on a few touchstones such as: (i) the
words used must expressly provide or
clearly imply retrospective operation;
(ii) the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck
down as unconstitutional; (iii) where
the legislation is introduced to overcome a judicial decision, the power
cannot be used to subvert the decision
without removing the statutory basis of
the decision. There is no fixed formula
for the expression of legislative intent
to give retrospectivity to an enactment.
A validating clause coupled with a substantive statutory change is only one of
the methods to leave actions unsustainable under the unamended statute,
undisturbed. Consequently, the absence of a validating clause would not
86
by itself affect the retrospective operation of the statutory provision, if such
retrospectivity is otherwise apparent.
19. The Constitution Bench in Shyam
Sunder v. Ram Kumar [(2001) 8 SCC 24]
has held: (SCC p. 49, para 39)
“Ordinarily when an enactment declares the previous law, it requires to
be given retroactive effect. The function
of a declaratory statute is to supply an
omission or to explain a previous
statute and when such an Act is
passed, it comes into effect when the
previous enactment was passed. The
legislative power to enact law includes
the power to declare what was the previous law and when such a declaratory
Act is passed, invariably it has been
held to be retrospective. Mere absence
of use of the word ‘declaration’ in an
Act explaining what was the law before
may not appear to be a declaratory Act
but if the court finds an Act as
declaratory or explanatory, it has to be
construed as retrospective.” (p. 2487).
20. In Bengal Immunity Co. Ltd. v. State
of Bihar [(1955) 2 SCR 603 : AIR 1955 SC
661] , Heydon case [(1584) 3 Co Rep 7a :
76 ER 637] was cited with approval. Their
Lordships have said: (SCR pp. 63233)
“It is a sound rule of construction of
a statute firmly established in England
as far back as 1584 when Heydon
87
case [(1584) 3 Co Rep 7a : 76 ER 637]
was decided that—
‘… for the sure and true interpretation of all statutes in general (be
they penal or beneficial, restrictive
or enlarging of the common law)
four things are to be discerned and
considered—
1st. What was the common law
before the making of the Act.
2nd. What was the mischief
and defect for which the common
law did not provide.
3rd. What remedy Parliament
hath resolved and appointed to
cure the disease of the Commonwealth, and
4th. The true reason of the
remedy; and then the office of all
the judges is always to make
such construction as shall suppress the mischief, and advance
the remedy, and to suppress subtle inventions and evasions for
continuance of the mischief,
and pro privato commodo, and to
add force and life to the cure and
remedy, according to the true intent of the makers of the Act, pro
bono publico.’ ”
21. In Allied Motors (P) Ltd. v. CIT [(1997)
3 SCC 472] certain unintended consequences flowed from a provision enacted
by Parliament. There was an obvious
88
omission. In order to cure the defect, a
proviso was sought to be introduced
through an amendment. The Court held
that literal construction was liable to be
avoided if it defeated the manifest object
and purpose of the Act. The rule of reasonable interpretation should apply.
“A proviso which is inserted to remedy unintended consequences and to
make the provision workable, a proviso
which supplies an obvious omission in
the section and is required to be read
into the section to give the section a
reasonable interpretation, requires to
be treated as retrospective in operation
so that a reasonable interpretation can
be given to the section as a whole.”
(SCC pp. 47980, para 13)
22. The State Legislature of Haryana intended to impose a disqualification with
effect from 541995 and that was done.
Any person having more than two living children was disqualified on and
from that day for being a member of a
municipality. However, while enacting
a proviso by way of an exception carving out a fact situation from the operation of the newly introduced disqualification the draftsman's folly caused
the creation of trouble. A simplistic
reading of the text of the proviso
spelled out a consequence which the
legislature had never intended and
could not have intended. It is true
89
that the Second Amendment does not
expressly give the amendment a retrospective operation. The absence of a
provision expressly giving a retrospective operation to the legislation is not
determinative of its prospectivity or
retrospectivity. Intrinsic evidence may
be available to show that the amendment was necessarily intended to
have retrospective effect and if the
Court can unhesitatingly conclude in
favour of retrospectivity, the Court
would not hesitate in giving the Act
that operation unless prevented from
doing so by any mandate contained in
law or an established principle of interpretation of statutes.”
[emphasis supplied]
82. It could thus be seen, that what is material is, to
ascertain the legislative intent. If legislature by an
amendment supplies an obvious omission in a former
statute or explains a former statute, the subsequent statute
has a relation back to the time when the prior Act was
passed.
83. The law laid down in Zile Singh (supra) has been
subsequently followed in various judgments of this Court,
including in the case of Commissioner of Income Tax I,
90
Ahmedabad vs. Gold Coin Health Food Private Limited33
(three Judges’ Bench).
84. This Court recently in the case of State Bank of
India vs. V. Ramakrishnan and another34
, had an
occasion to consider the question, as to whether the
amendment to subsection (3) of Section 14 of I&B Code by
Amendment Act 26 of 2018 was clarificatory in nature or
not. By the said amendment, subsection (3) of Section 14
of I&B Code was substituted to provide, that the provisions
of subsection (1) of Section 14 shall not apply to a surety in
a contract of guarantee for Corporate Debtor. Considering
the said issue, this Court observed thus:
“30. We now come to the argument that
the amendment of 2018, which makes it
clear that Section 14(3), is now substituted
to read that the provisions of subsection
(1) of Section 14 shall not apply to a surety
in a contract of guarantee for corporate
debtor. The amended section reads as follows:
“14. Moratorium.—(1)(2) *
* *
(3) The provisions of subsection (1)
shall not apply to—
33(2008) 9 SCC 622
34 (2018) 17 SCC 394
91
(a) such transactions as may be notified by the Central Government in consultation with any financial sector regulator;
(b) a surety in a contract of guarantee
to a corporate debtor.”
31. The Insolvency Law Committee, appointed by the Ministry of Corporate Affairs, by its Report dated 2632018, made
certain key recommendations, one of
which was:
“(iv) to clear the confusion regarding
treatment of assets of guarantors of the
corporate debtor visàvis the moratorium on the assets of the corporate
debtor, it has been recommended to clarify by way of an explanation that all assets of such guarantors to the corporate
debtor shall be outside scope of moratorium imposed under the Code;”
(emphasis supplied)
32. The Committee insofar as the moratorium under Section 14 is concerned,
went on to find:
“5.5. Section 14 provides for a moratorium or a stay on institution or continuation of proceeding, suits, etc.
against the corporate debtor and its assets. There have been contradicting
views on the scope of moratorium regarding its application to third parties
affected by the debt of the corporate
debtor, like guarantors or sureties.
92
While some courts have taken the view
that Section 14 may be interpreted literally to mean that it only restricts actions
against the assets of the corporate
debtor, a few others have taken an interpretation that the stay applies on enforcement of guarantee as well, if a CIRP
is going on against the corporate
debtor.”
***
“5.7. The Allahabad High Court subsequently took a differing view in Sanjeev Shriya v. SBI [Sanjeev Shriya v. SBI,
2017 SCC OnLine All 2717 : (2018) 2 All
LJ 769 : (2017) 9 ADJ 723] , by applying
moratorium to enforcement of guarantee
against personal guarantor to the debt.
The rationale being that if a CIRP is going on against the corporate debtor,
then the debt owed by the corporate
debtor is not final till the resolution plan
is approved, and thus the liability of the
surety would also be unclear. The Court
took the view that until debt of the corporate debtor is crystallised, the guarantor's liability may not be triggered.
The Committee deliberated and noted
that this would mean that surety's liabilities are put on hold if a CIRP is going
on against the corporate debtor, and
such an interpretation may lead to the
contracts of guarantee being infructuous, and not serving the purpose for
which they have been entered into.
5.8. In SBI v. V. Ramakrishnan [SBI v. V. Ramakrishnan, 2018 SCC
93
OnLine Nclat 384] , NCLAT took a broad
interpretation of Section 14 and held
that it would bar proceedings or actions
against sureties. While doing so, it did
not refer to any of the above judgments
but instead held that proceedings
against guarantors would affect the
CIRP and may thus be barred by moratorium. The Committee felt that such a
broad interpretation of the moratorium
may curtail significant rights of the
creditor which are intrinsic to a contract
of guarantee.
5.9. A contract of guarantee is between the creditor, the principal debtor
and the surety, whereunder the creditor
has a remedy in relation to his debt
against both the principal debtor and
the surety (National Project Construction
Corpn. Ltd. v. Sadhu and Co. [National
Project Construction Corpn. Ltd. v. Sadhu
and Co., 1989 SCC OnLine P&H 1069 :
AIR 1990 P&H 300] ). The surety here
may be a corporate or a natural person
and the liability of such person goes as
far the liability of the principal debtor.
As per Section 128 of the Contract Act,
1872, the liability of the surety is coextensive with that of the principal debtor
and the creditor may go against either
the principal debtor, or the surety, or
both, in no particular sequence
(Chokalinga Chettiar v. Dandayuthapani
Chettiar [Chokalinga Chettiar v. Dandayuthapani Chettiar, 1928 SCC OnLine
Mad 236 : AIR 1928 Mad 1262] ).
94
Though this may be limited by the terms
of the contract of guarantee, the general
principle of such contracts is that the liability of the principal debtor and the
surety is coextensive and is joint and
several (Bank of Bihar Ltd. v. Damodar
Prasad [Bank of Bihar Ltd. v. Damodar
Prasad, AIR 1969 SC 297] ). The Committee noted that this characteristic of
such contracts i.e. of having remedy
against both the surety and the corporate debtor, without the obligation to exhaust the remedy against one of the
parties before proceeding against the
other, is of utmost importance for the
creditor and is the hallmark of a guarantee contract, and the availability of
such remedy is in most cases the basis
on which the loan may have been extended.
5.10. The Committee further noted
that a literal interpretation of Section
14 is prudent, and a broader interpretation may not be necessary in the
above context. The assets of the surety
are separate from those of the corporate debtor, and proceedings against
the corporate debtor may not be seriously impacted by the actions against
assets of third parties like sureties. Additionally, enforcement of guarantee
may not have a significant impact on
the debt of the corporate debtor as the
right of the creditor against the principal debtor is merely shifted to the
surety, to the extent of payment by the
95
surety. Thus, contractual principles of
guarantee require being respected even
during a moratorium and an alternate
interpretation may not have been the
intention of the Code, as is clear from
a plain reading of Section 14.
5.11. Further, since many guarantees
for loans of corporates are given by its
promoters in the form of personal guarantees, if there is a stay on actions
against their assets during a CIRP, such
promoters (who are also corporate applicants) may file frivolous applications to
merely take advantage of the stay and
guard their assets. In the judgments analysed in this relation, many have been
filed by the corporate applicant under
Section 10 of the Code and this may
corroborate the above apprehension of
abuse of the moratorium provision. The
Committee concluded that Section 14
does not intend to bar actions against
assets of guarantors to the debts of the
corporate debtor and recommended that
an explanation to clarify this may be inserted in Section 14 of the Code. The
scope of the moratorium may be restricted to the assets of the corporate
debtor only.”
33. The Report of the said Committee
makes it clear that the object of the
amendment was to clarify and set at rest
what the Committee thought was an overbroad interpretation of Section 14. That
such clarificatory amendment is retrospec
96
tive in nature, would be clear from the following judgments”
85. In the case of B.K. Educational Services
Private Limited vs. Parag Gupta and Associates (supra),
this Court considered the question, as to whether the 2018
amendment which inserted Section 238A to the I&B Code
was clarificatory in nature or not. After considering various
earlier judgments of this Court, this Court observed thus:
“26. In the present case also, it is clear
that the amendment of Section 238A
would not serve its object unless it is construed as being retrospective, as otherwise, applications seeking to resurrect
timebarred claims would have to be allowed, not being governed by the law of
limitation.
27. We may also refer to a recent decision
of this Court in SBI v. V. Ramakrishnan [SBI v. V. Ramakrishnan, (2018) 17
SCC 394] , where this Court, after referring to the selfsame Insolvency Law Committee Report, held that the amendment
made to Section 14 of the Code, in which
the moratorium prescribed by Section 14
was held not to apply to guarantors, was
held to be clarificatory, and therefore, retrospective in nature, the object being that
an overbroad interpretation of Section 14
ought to be set at rest by clarifying that
97
this was never the intention of Section 14
from the very inception.
86. As discussed hereinabove, one of the principal
objects of I&B Code is, providing for revival of the Corporate
Debtor and to make it a going concern. I&B Code is a
complete Code in itself. Upon admission of petition under
Section 7, there are various important duties and functions
entrusted to RP and CoC. RP is required to issue a
publication inviting claims from all the stakeholders. He is
required to collate the said information and submit
necessary details in the information memorandum. The
resolution applicants submit their plans on the basis of the
details provided in the information memorandum. The
resolution plans undergo deep scrutiny by RP as well as
CoC. In the negotiations that may be held between CoC and
the resolution applicant, various modifications may be made
so as to ensure, that while paying part of the dues of
financial creditors as well as operational creditors and other
stakeholders, the Corporate Debtor is revived and is made
an ongoing concern. After CoC approves the plan, the
98
Adjudicating Authority is required to arrive at a subjective
satisfaction, that the plan conforms to the requirements as
are provided in subsection (2) of Section 30 of the I&B
Code. Only thereafter, the Adjudicating Authority can grant
its approval to the plan. It is at this stage, that the plan
becomes binding on Corporate Debtor, its employees,
members, creditors, guarantors and other stakeholders
involved in the resolution Plan. The legislative intent
behind this is, to freeze all the claims so that the resolution
applicant starts on a clean slate and is not flung with any
surprise claims. If that is permitted, the very calculations
on the basis of which the resolution applicant submits its
plans, would go haywire and the plan would be unworkable.
87. We have no hesitation to say, that the word
“other stakeholders” would squarely cover the Central
Government, any State Government or any local authorities.
The legislature, noticing that on account of obvious
omission, certain tax authorities were not abiding by the
mandate of I&B Code and continuing with the proceedings,
has brought out the 2019 amendment so as to cure the said
99
mischief. We therefore hold, that the 2019 amendment is
declaratory and clarificatory in nature and therefore
retrospective in operation.
88. There is another reason, which persuades us to
take the said view. Subsection (10) of Section 3 of the I&B
Code defines “creditor” thus:
“(10) “creditor” means any person to
whom a debt is owed and includes a
financial creditor, an operational creditor,
a secured creditor, an unsecured creditor
and a decreeholder;”
89. Subsections (20) and (21) of Section 5 of the I&B
Code define “operational creditor” and “operational debt”
respectively as such:
(20) “operational creditor” means a person to whom an operational debt is
owed and includes any person to
whom such debt has been legally assigned or transferred;
(21) “operational debt” means a claim in
respect of the provision of goods or services including employment or a debt
in respect of the payment of dues arising under any law for the time being in
force and payable to the Central Government, any State Government or any
local authority;
100
90. “Creditor” therefore has been defined to mean
‘any person to whom a debt is owed and includes a financial
creditor, an operational creditor, a secured creditor, an
unsecured creditor and a decreeholder’.
“Operational creditor” has been defined to mean a
person to whom an operational debt is owed and includes
any person to whom such debt has been legally assigned or
transferred.
“Operational debt” has been defined to mean a
claim in respect of the provision of goods or services
including employment or a debt in respect of the payment of
dues arising under any law for the time being in force and
payable to the Central Government, any State Government
or any local authority.
91. It is a cardinal principle of law, that a statute has
to be read as a whole. Harmonious construction of subsection (10) of Section 3 of the I&B Code read with subsections (20) and (21) of Section 5 thereof would reveal, that
even a claim in respect of dues arising under any law for the
time being in force and payable to the Central Government,
any State Government or any local authority would come
101
within the ambit of ‘operational debt’. The Central
Government, any State Government or any local authority
to whom an operational debt is owed would come within the
ambit of ‘operational creditor’ as defined under subsection
(20) of Section 5 of the I&B Code. Consequently, a person
to whom a debt is owed would be covered by the definition
of ‘creditor’ as defined under subsection (10) of Section 3 of
the I&B Code. As such, even without the 2019 amendment,
the Central Government, any State Government or any local
authority to whom a debt is owed, including the statutory
dues, would be covered by the term ‘creditor’ and in any
case, by the term ‘other stakeholders’ as provided in subsection (1) of Section 31 of the I&B Code.
92. The Division Bench of the Rajasthan High Court
in D.B. Civil Writ Petition No.9480 of 2019 in the case of
Ultra Tech Nathdwara Cement Ltd. vs. Union of India &
Ors., by judgment and order dated 7.4.2020 has taken a
view, that the demand notices, issued by the Central Goods
and Service Tax Department, for a period prior to the date
on which NCLT has granted its approval to the resolution
102
plan, are not permissible in law. While doing so, the
Rajasthan High Court has relied on the judgment of this
Court in the case of Committee of Creditors of Essar
Steel India Limited through Authorised Signatory
(supra).
93. The Calcutta High Court in the case of Akshay
Jhunjhunwala & Anr. vs. Union of India through the
Ministry of Corporate Affairs & Ors.35 has also taken a
view, that the claim of operational creditor will also include
a claim of a statutory authority on account of money
receivable pursuant to an imposition by a statute. We are
in agreement with the views taken by these Courts.
94. Therefore, in our considered view, the aforesaid
provisions leave no manner of doubt to hold, that the 2019
amendment is declaratory and clarificatory in nature. We
also hold, that even if 2019 amendment was not effected,
still in light of the view taken by us, the Central
Government, any State Government or any local authority
35 2018 SCC OnLine Cal. 142
103
would be bound by the resolution plan, once it is approved
by the Adjudicating Authority (i.e. NCLT).
CONCLUSION
95. In the result, we answer the questions framed by
us as under:
(i) That once a resolution plan is duly approved
by the Adjudicating Authority under subsection (1) of Section 31, the claims as
provided in the resolution plan shall stand
frozen and will be binding on the Corporate
Debtor and its employees, members,
creditors, including the Central
Government, any State Government or any
local authority, guarantors and other
stakeholders. On the date of approval of
resolution plan by the Adjudicating
Authority, all such claims, which are not a
part of resolution plan, shall stand
extinguished and no person will be entitled
to initiate or continue any proceedings in
104
respect to a claim, which is not part of the
resolution plan;
(ii) 2019 amendment to Section 31 of the I&B
Code is clarificatory and declaratory in
nature and therefore will be effective from
the date on which I&B Code has come into
effect;
(iii) Consequently all the dues including the
statutory dues owed to the Central
Government, any State Government or any
local authority, if not part of the resolution
plan, shall stand extinguished and no
proceedings in respect of such dues for the
period prior to the date on which the
Adjudicating Authority grants its approval
under Section 31 could be continued.
96. In the light of what has been held by us
hereinabove, we now proceed to decide individual matters.
CIVIL APPEAL NO.8129 OF 2019
97. In the said appeal, admittedly, the Company
Petition filed by the SBI under Section 7 of I&B Code in
respect of OMML/Corporate Debtor came to be admitted on
105
3.8.2017. Correspondingly, order of moratorium and
appointment of IRP also came to be passed on the said date.
By a public notice, RP invited claims from the creditors. The
last date for submission of such claims was 18.8.2017. RP
also invited EOI as well as resolution plans. In response to
the said invitation, both GMSPL and EARC had submitted
their resolution plans. In the 8th meeting of CoC held on
14.3.2018, the resolution plan submitted by EARC was
found to be most competitive and as such, it was declared
as H1 bidder. However, during negotiation, the resolution
plan of EARC was not found to be satisfactory by CoC and
as such, in the 9th meeting of CoC held on 31.3.2018,
resolution plan of EARC came to be rejected.
98. Thereafter, since GMSPL was H2 bidder,
negotiations were held with it. However, the resolution plan
submitted by GMSPL was also not found to be satisfactory
and therefore in the 10th meeting of CoC held on 3.4.2018, it
was decided to annul the existing proceedings and initiate a
fresh process for invitation for submission of resolution
plan. This was restricted only to such entities, which had
106
submitted their EOI for submission of resolution plan. In
response to the fresh invitation for submission of resolution
plan, three bidders, namely, GMSPL, EARC and SIFL
submitted their resolution plans. In the 11th meeting of CoC
held on 13.4.2018, the resolution plan submitted by GMSPL
was found to be most competitive and as such, CoC
declared it as H1 bidder. After holding several rounds of
negotiations, in the 12th meeting of CoC held on 21.4.2018,
CoC unanimously decided to convene a meeting of the CoC
on 25.4.2018 for voting on the resolution plan proposed by
GMSPL. In the meeting of the CoC held on 25.4.2018, CoC
being satisfied that the resolution plan submitted by GMSPL
meets all the requirements under subsection (2) of Section
30 of I&B Code, placed the same for voting. The said
resolution plan of GMSPL was approved by more than
89.23% of voting share of financial creditors of the
Corporate Debtor. Accordingly, an application being CA (IB)
No.402/KB/2018 came to be filed by RP for grant of
approval to the resolution plan submitted by GMSPL before
the NCLT. EARC filed application being CA (IB)
107
No.398/KB/2018, challenging the approval granted by CoC
to the resolution plan submitted by GMSPL. It also filed CA
(IB) No. 470/KB/2018, challenging the decision of RP in not
admitting its claim. One Application being CA(IB)
No.509/KB/2018 came to be filed by the District Mining
Officer, Department of Mining and Geology, Jharkhand
challenging the nonadmission of its claim to the tune of
Rs.93,51,91,724/ and Rs.760.51 crores.
99. By common order dated 22.6.2018, application
being CA(IB) No.402/KB/2018 filed by RP, came to be
allowed thereby, granting approval under the provisions of
Section 31(1) of the I&B Code and declaring that the same
will be binding on the Corporate Debtor, its employees,
members, creditors, guarantors and other stakeholders
involved in the resolution Plan. Application being CA (IB)
No.398/KB/2018 filed by EARC challenging the approval
granted by CoC to the resolution plan submitted by GMSPL
was dismissed. Vide same order dated 22.6.2018,
application being CA (IB) No.470/KB/2018 filed by EARC
challenging the decision of the RP in not admitting its claim
108
and application being CA(IB) No.509/KB/2018 filed by the
District Mining Officer, Department of Mining and Geology,
Jharkhand challenging the nonadmission of its claim were
also dismissed with cost of Rs.1,00,000/ each.
100. While allowing the application filed by RP,
granting approval to the resolution plan of GMSPL (i.e. CA
No.402/KB/2018) and rejecting the application of EARC
challenging the grant of approval to the resolution plan of
GMSPL by CoC (i.e. CA No.398/KB/2018), NCLT found, that
RP had followed the entire procedure as required under the
I&B Code and the Regulations. It also found, that CoC after
applying its mind found, that the resolution plan submitted
by GMSPL was in conformity with the requirements under
Section 30(2) of the I&B Code.
101. Insofar as the application filed by EARC with
regard to nonadmission of its claim submitted to RP is
concerned, NCLT found, that the Corporate Debtor had
executed guarantee securing loan received by APNRL, which
had been given by India Infrastructure Finance Company
Limited (“IIFCL” for short). The corporate guarantee
109
executed by the Corporate Debtor was in favour of IIFCL.
The Corporate Debtor also owned share in APNRL, which
was pledged with IIFCL to secure the loan given by IIFCL to
APNRL. IIFCL assigned its rights to EARC. EARC being the
assignee of the aforesaid submitted its claims to the RP.
102. NCLT found, that by email dated 6.1.2018, EARC
had submitted its claim in Form ‘C’ for an amount of
Rs.648,89,62,395/. In response to the said email, RP
sought a clarification, as to whether the corporate guarantee
had been invoked by the applicant. RP had not received any
response till 21.2.2018 from EARC. Despite repeated
requests made by RP, EARC did not respond to the query
made by RP. From the record placed before NCLT, it was
clear, that EARC had not invoked the corporate guarantee.
NCLT therefore posed a question to itself, as to whether an
uninvoked corporate guarantee could be considered as
matured claim of the applicant. NCLT found, that once the
moratorium was applied under Section 14 of I&B Code,
EARC was prevented from invoking the corporate guarantee.
NCLT further found, that the OMML’s guarantee had not
110
been invoked by EARC till the date of completion of CIRP
process and once the moratorium was imposed, it could not
invoke the corporate guarantee. NCLT therefore found, that
there is no illegality or irregularity in not admitting the
claim of EARC.
103. NCLT found, that the entire information was
uploaded in the virtual data room to which EARC had
access since it was also one of the resolution applicants.
NCLT found, that the information with regard to claim of all
financial creditors inclusive of EARC’s claim was available in
the virtual data room. The record also revealed, that the
claim of EARC was not admitted for the reason that the
corporate guarantee in question was uninvoked as on date.
104. Insofar as the second objection of EARC with
regard to the shares owned by the Corporate Debtor in
APNRL, which were pledged with IIFCL to secure the loan
given by IIFCL to APNRL and which were assigned to EARC
being invoked on 30.4.2018 is concerned, NCLT found the
same claim also to be without merit. NCLT found, that on
30.4.2018, the moratorium was in force and therefore
111
invocation of pledge by EARC on 30.4.2018 was not
permissible in law. It was further found, that RP had rightly
not admitted the said claim.
105. It was sought to be argued on behalf of EARC,
that CIRP process was complete on 29.4.2018 and
therefore, invocation of pledge by EARC on 30.4.2018 was
legal and valid. However, NCLT found, that unless the
application filed by RP under Section 31(1) for approval of
the plan was decided and an order either approving or
rejecting the resolution plan was passed, the moratorium
declared under Section 14 would continue to have force.
As such, invocation of pledge on 30.4.2018 was held to be
not permissible in law. It would be relevant to refer to the
observations made by NCLT with regard to conduct of
EARC.
“It appears to us that it is a deliberate
attempt to stage mange an objection
against the approval of a resolution plan
other than the plan submitted by the
resolution applicant. We also found that
CA 398 of 2018 filed for rejection of the
resolution plan is liable to be dismissed
since the very same applicant not at all
succeeds in proving its contention and
that the applicant approaches the Bench
112
without any clean hand. Instances of
challenging resolution plan by
unsuccessful resolution applicant is at
the increase. Filing like petition is also
one among the reason for the delay in
approving the resolution plan passed by
the CoC in compliance of the provisions
of the Code. This is a unique case in
which the applicant herein filed the
application without any valid grounds.
Dismissing like petition without cost may
encourage the applicant like the
applicant to file like petition. It would
also amount to allowing the applicant to
abuse the process of the Tribunal as well
as deliberately delaying the completion of
CIRP process. Accordingly, we hold that
this application is liable to be dismissed
with costs of Rs.1,00,000/. Awarding
cost of Rs.1,00,000/ in the peculiar
nature and circumstances of the case in
hand is found reasonable.”
106. Insofar as application being CA No.509/KB/2018
filed by the District Mining Officer is concerned, NCLT
found, that RP had sought clarification from the said
applicant with regard to its claim made in Form ‘B’ since the
information supplied therein was found to be inadequate. It
was found, that in spite of the said request, the District
Mining Officer had failed to place on record any supportive
document or affidavit as required under the Regulations.
113
NCLT found no merit in the contentions raised on behalf of
the District Mining Officer with regard to the claim on the
basis of Section 25 of the Mines and Mineral (Development
and Regulation) Amendment Act, 1972. It was found, that
in view of the provisions of Section 238 of I&B Code, the
provisions of I&B Code have an overriding effect over any
other law.
107. It was therefore found, that no error was
committed by RP in not admitting the claim of the District
Mining Officer since it was not supported by any document
or affidavit. NCLT therefore rejected the said application
with cost of Rs.1,00,000/.
108. The order dated 22.6.2018 passed by NCLT was
challenged by way of four appeals before NCLAT; two
appeals being Company Appeal (AT) (Insolvency) Nos.437
and 444 of 2018 filed by EARC; one appeal being Company
Appeal (AT) (Insolvency) No. 438 of 2018 filed by one Deepak
Singh and one appeal being Company Appeal (AT)
(Insolvency) No. 500 of 2018 filed by Sundargarh Mines &
Transport Workers Union.
114
109. Vide the impugned judgment and order dated
23.4.2019, NCLAT found, that as no ground was made out
in terms of Section 61(3) of I&B Code, no relief could be
granted in the appeals. However, while doing so, NCLAT
observed thus:
“28. However, we make it clear that the
rejection of the claim for the purpose of
collating the claim and making it part of
the ‘Resolution Plan’ will not affect the
right of the Appellant ‘Edelweiss Asset
Reconstruction Limited’ to invoke the
Bank Guarantee against the ‘Corporate
Debtor’ in case the ‘Principal Borrower’
failed to pay the debt amount, the
‘Moratorium’ period having come to an
end.
42. From the aforesaid provisions, it is
clear that after period of Moratorium it is
open to the person to move before a Civil
Court or to move an application before
the Court of Competent Jurisdiction
against the ‘Corporate Debtor’.
43. In the present case, since it is not
possible either for the Adjudicating
Authority or for this Appellate Tribunal to
give any specific finding, we are of the
view that the Appellant may move before
the Civil Court or Court of Competent
Jurisdiction and may file an application
before the Labour Court for appropriate
relief in favour of the concerned workmen
or against the ‘Corporate Debtor’ if they
115
have actually worked and have not been
taken care in the ‘Resolution Plan’ due to
lack of knowledge and nonfiling of the
claim within time.
51. In the present case, as no ground has
been made out in terms of subsection (3)
of Section 61 of the ‘I&B Code’ and the
decision of the ‘Resolution Professional’
was not challenged by the Appellant, no
relief can be granted. However, this order
will not come in the way of the Appellant
to move before appropriate forum for
appropriate relief if the claim is not
barred by limitation.
52. In so far dues of State of Jharkhand
is concerned, we hold that the statutory
dues shall be payable to the State of
Jharkhand in terms of existing law which
comes within the meaning of ‘operational
debt’ as defined in Section 5(20) read with
Section 5(21) and held in “Pr. Director
Company Appeal (AT) (Insolvency) Nos.
437, 438, 444 & 500 of 2018 General of
Income Tax (Admn. & TPS) Vs. M/s.
Spartek Ceramics India Ltd. & Anr.
Company Appeal (AT) (Insolvency) No.
160 of 2017”.
Except the aforesaid observations,
in absence of any appeal filed by the
State of Jharkhand, no order is passed.”
110. We find, that the aforesaid observations are
beyond the scope of the powers available with NCLAT under
116
subsection (3) of Section 61 of I&B Code. We also find, that
the said observations run totally contrary to the consistent
view taken by this Court in the line of judgments starting
from K. Sashidhar (supra) to Kalpraj Dharamshi (supra).
111. NCLAT has categorically found, that no ground as
is available under subsection (3) of Section 61 of I&B Code
has been made out and has also categorically found, that
the resolution plan submitted by GMSPL was a better offer
than the other two resolution applicants, including EARC
and that the Adjudicating Authority has rightly approved
the resolution plan of GMSPL. After coming to such finding,
the only option available with NCLAT was to dismiss the
appeals. In our view, the observations made in the
aforesaid paragraphs, if permitted to remain, would totally
frustrate the object of I&B Code of revival of a Corporate
Debtor and to resurrect it as a going concern. As held by
this Court, the successful resolution applicant cannot be
flung with surprise claims which are not part of the
resolution plan.
117
112. It will also be relevant to refer to the conduct of
EARC. Clause 2.1.3 of the resolution plan submitted by
EARC reads as under:
“2.1.3 Financial Creditors other than
Identified Financial Creditors
(i) Liabilities
We have been informed by the RP
that other than the Identified
Financial Creditors, there are no
other Financial Creditors of the
Company, whether secured or
unsecured.
Other than the Assigned Debt,
any and all dues to, liabilities or
obligations payable to, claims,
counter claims, demands, actions
or penalties made or imposed by
(including but not limited to all
interests, damages, losses,
expenses and third party claims),
and any right, title, interest
enjoyed by, any actual or
potential Financial Creditor or in
connection with any Financial
Debt, whether, or not claimed,
whether or not filed, whether or
not crystallised, whether or not
accrued, whether or not admitted,
whether or not notional, whether
or not known, whether due or
contingent, whether or not
disputed, present or future,
118
whether or not being adjudicated
in any proceeding, whether or not
decreed, whether or not reflected
in the financial statements of the
Company, or whether or not
reflected in any record,
document, statement, statutory
or otherwise, arising prior to or
after the Effective Date, but
pertaining to a period prior to the
Effective Date, or arising in
connection with the Assignment
or acquisition of shares of the
Company by the Investors or
conversion of the Conversion
Debt into equity or restructuring
of the Assigned Debt or in any
other manner as a result of or in
connection with this Plan, shall
be deemed to have been
irrevocably waived and
permanently extinguished and
written off in full with effect from
the Effective Date. To give effect
to such waiver and
extinguishment, any contract,
agreement, deed or document;
whether oral or written, express
or implied, statutory or otherwise,
pursuant to which any such
dues, liabilities, obligations,
claims, counter claims, demands,
actions, penalties, right, title or
interest is claimed (other than as
specifically mentioned herein)
shall stand modified with effect
from the Effective Date without
any further act or deed, and
approval of this Plan by NCLT
119
shall be deemed to be sufficient
notice which may be required to
be given to any Person for such
matter and no further notice shall
be required to be given. ”
113. It will also be relevant to refer to similar
provisions made in the resolution plan submitted by
GMSPL, which read as under:
“7. Withdrawal of litigations initiated by
the Financial Creditors against
OMML, issue nodues certificate(s) in
favour of OMML and release their
respective charges on the securities in
full and complete satisfaction of all
debts owed to the Financial Creditors
by OMML / the respective SPVs as the
case may be, including all guarantees
which may have been provided to the
Financial Creditors, for credit facilities
availed by OMML.
8. Extinguishment and waiver of all
dues to the Incumbent Promoter
Group by OMML.
9. Directions to ensure that the Proposed
Merger application shall stand
withdrawn. Relinquishment of
corporate guarantee issued by OMML
in favour of or on behalf of any of its
subsidiaries, associates, group
companies or any third party.
Directions to the effect that the
guarantees provided by any and all
120
members of Incumbent Promoter
Group or their respective promoters
or any person associated with the
Incumbent Promoter Group, may
continue with the Financial Creditors.
However, the same shall not result in
any liability towards OMML or the
Resolution Applicants.”
114. It is thus clear, that according to the resolution
plan submitted by EARC itself, had it been a successful
applicant, then in that event, the claims made by it would
have been irrevocably waived and permanently extinguished
and written off in full with effect from the Effective Date.
Had the resolution plan of EARC been approved, then all
such debts would have stood extinguished without any
further act or deed and approval of the said plan by NCLT
would have been a sufficient notice required to be given to
any person for such matter. Undisputedly, the resolution
plan submitted by EARC was on the basis of the
information memorandum submitted by RP wherein, it was
specifically clarified, that the claims of EARC were not
admitted by RP. It is thus clear, that EARC is trying to blow
hot and cold at the same time. According to it, had its
121
resolution plan been approved by CoC and NCLT, then the
claims, which are now insisted by EARC would have stood
extinguished. However, on its failure to become a
successful resolution applicant and approval of other
applicant as a successful resolution applicant, its claim
would survive. A party cannot be permitted to apply two
different yardsticks.
115. Shri Bhushan, learned counsel appearing on
behalf of EARC, strongly relying on the judgment of NCLAT
dated 14.8.2018 passed in Export Import Bank of India
vs. Resolution Professional JEKPL Private Limited36
,
submits, that NCLAT itself in the said case had held, that
invocation of corporate guarantee has no nexus with filing of
the claim pursuant to public announcement made under
Section 13(1)(b) read with Section 15(1)(c) of the I&B Code
and also for collating the claim under Section 18(1)(b) or for
updating claim under Section 25(2)(e). He submits, that
Civil Appeal challenging the said judgment and order has
been dismissed by this Court vide order dated 23.1.2019.
36 Company Appeal (AT) (Insolvency) No.304 of 2017 and connected matters.
122
116. He submits, that NCLAT itself in the said case
had directed EXIM Bank and Axis Bank to be treated as
‘financial creditors’ and had further directed them to be
given representation on CoC. He submits, that, however, in
the present case, NCLAT has taken a contrary view. He
therefore submits, that in the alternative this Court should
direct RP/CoC to treat EARC as a ‘financial creditor’ and
give it representation on CoC and take a decision in
accordance with law.
117. We find, that the said case, on facts, would not be
applicable to the case at hand. No doubt, that the appeal
filed against the judgment and order of NCLAT dated
14.8.2018 has been dismissed by this Court on 23.1.2019.
However, it is a settled law, that dismissal of a Special Leave
Petition/Appeal does not amount to affirmation of the view
taken in the judgment impugned in the Special Leave
Petition/Appeal. It will also be relevant to refer to the order
passed by this Court dated 23.1.2019 while dismissing the
appeal, which reads thus:
“Civil Appeal No.10134/2018
123
We have heard learned counsel for
the parties and perused the relevant
material on record.
The Civil Appeal is dismissed.
It will be open for the appellant to
urge all points as may be available to it in
law before the appropriate forum, if so
advised.”
118. It will thus be clearly seen, that this Court while
dismissing the appeal has reserved the liberty to the
appellant to urge all points as may be available to it in law
before the appropriate forum.
119. It is to be noted, that in the appeal before NCLAT,
the EXIM Bank as well as Axis Bank had taken steps
immediately after the claim of said Banks on the basis of
corporate guarantee came to be rejected by RP/CoC. After
rejection of the claim, said Banks had filed an application
under Section 60(5) before NCLT. On NCLT rejecting the
said claim, those Banks had approached NCLAT in appeals,
which were allowed and the order, as stated hereinabove,
was passed.
124
120. In the present case, the claim of EARC was
rejected on 22.1.2018. Instead of challenging the said
rejection, EARC participated in the proceedings and was one
of the resolution applicants. Not only that, in the first
round, it was a successful bidder being ranked H1 bidder.
However, since in the negotiations it failed to satisfy CoC,
fresh bids were invited from the resolution applicants,
which had submitted their EOI. In the 12th meeting of CoC
held on 25.4.2018, the resolution plan of GMSPL was
approved by 89.23% of the voting shares. Only thereafter,
EARC filed two applications; one challenging the approval of
resolution plan of GMSPL by CoC and another challenging
rejection of its claims by RP/CoC.
121. It could thus be clearly seen, that EARC was
taking chances. After rejection of its claim, it did not choose
to challenge the same by an application under Section 60(5)
but waited till the decision of CoC. During this period, it
was actually pursuing its resolution plan. Only after its
resolution plan was not approved and the resolution plan of
GMSPL was approved, it filed the aforesaid two applications.
125
Apart from that, as already observed hereinabove, in the
resolution plan of EARC itself, it has provided for
extinguishment of all claims not forming part of resolution
plan.
122. Even otherwise, if for the sake of argument, it is
held, that EARC was entitled to be treated as a ‘financial
creditor’ and entitled for a participation in CoC, still its
share was about 9% and as such, the resolution plan of
GMSPL would have been passed by a majority of 80%,
which is much above the statutory requirement.
123. We are therefore of the considered view, that the
observation made by NCLAT giving liberty to EARC to take
recourse to such proceedings as available in law for raising
its claims is totally unsustainable.
124. Insofar as, the observation made with regard to
claim of the Jharkhand Government is concerned, it is to be
noted, that the State of Jharkhand has not even appealed
against the order passed by NCLT. Insofar as, the claims of
Labour and Workmen are concerned, RP has specifically
stated before NCLAT, that whatever claims were received
from the workmen were duly considered in the resolution
126
plan. Despite that, observing that a liberty is available to
the workmen to raise their claims before a Civil Court or
Labour Court, in our view, is totally in conflict with the
provisions of I&B Code. The same would equally apply to
the observation made in the appeal of Mr. Deepak Singh,
claiming to be ‘operational creditor’.
125. We are therefore of the considered view, that the
appeal deserves to be allowed by expunging the paragraphs
nos. 28, 42, 43, 51 and 52 from the judgment of NCLAT
dated 23.4.2019. It is ordered accordingly. The judgment
and order passed by NCLT dated 22.6.2018 is upheld. No
costs.
CIVIL APPEAL ARISING OUT OF SPECIAL LEAVE
PETITION (CIVIL) NO.11232 OF 2020
126. The present appeal arises out of the judgment
and order passed by the Division Bench of the Allahabad
High Court dated 6.7.2020 thereby, dismissing the petition
filed by the appellant on the ground of availability of
alternate remedy. The petition being Civil Misc. Writ
Petition (Tax) No.354 of 2020 came to be filed seeking
following reliefs:
127
“i. Issue a writ, order or direction in
the nature of certiorari quashing the
order dated 30.01.2020 passed by the
Additional Commissioner Grade – 2
(Appeal) rejecting the appeal preferred by
the petitioner in respect of Assessment
Year 201516 (U.P. V A T) and affirming a
demand of Rs. 232.60 Lacs raised on the
petitioner;
ii. Issue a writ, order or direction in the
nature of certiorari quashing the
Communications/orders of the Joint
Commissioner (Corporate), Ghaziabad
holding that the proceedings in the State
of U.P. would remain unaffected
irrespective of the Resolution Plan of the
petitioner being approved by the NCLT
under the Insolvency and Bankruptcy
Code as the NCLT order does not
specifically prohibit these proceedings;
iii. Issue a writ, order or direction in the
nature of mandamus directing refund of
the amount which the petitioner is
entitled to as a result of orders passed by
the respondents;
iv. Issue a declaration that all
proceedings pending before different
authorities (assessing authority, first
appellate authority or Commercial Tax
Tribunal, Ghaziabad Bench) in respect of
transactions entered into by the
petitioner prior to the Transfer Date
involving a consolidated amount of Rs.
769.73 Lacs stand abated in terms of the
Resolution Plan approved by the NCLT
128
under the Insolvency and Bankruptcy
Code, 2016;
v. Issue a writ, order or direction in the
nature of mandamus directing the
Respondents to refund Rs. 248.92 Lacs/
deposited by the petitioner under protest
in these proceedings and also to return
the bank guarantee submitted for Rs.
16.31 Lacs/.
vi. Issue a writ, order or direction in the
nature of mandamus restraining the
Respondents from passing any orders
including penalty orders, raising any
further demands, imposing any liability
or taking any coercive steps including
continuing with pending assessments /
proceedings / litigation / appeals /
revisions in respect of period prior to
Transfer Date.”
127. The High Court found, that the appellant has an
alternative efficacious remedy of filing the Second Appeal
and as such, deemed it fit to not to entertain the said
petition. The basic grievance of the appellant in the writ
petition was, that after the resolution application was
approved by the Adjudicating Authority and the
management of the Corporate Debtor was transferred to the
129
resolution applicant, all the claims stood extinguished and
the proceedings in respect thereof could not continue.
128. The main ground raised on behalf of the
respondent is, with regard to availability of alternate
remedy. The second ground raised is, since the transfer
date is prior to 2019 amendment to Section 31 of I&B Code,
the said amendment would not be applicable to the debts
owed to the State Government or Central Government.
129. As held by this Court in catena of cases including
in the cases of Babu Ram Prakash Chandra Maheshwari
vs. Antarim Zilla Parishad Muzaffar Nagar37, Whirlpool
Corporation vs. Registrar of Trade Marks, Mumbai &
Ors.38
, Nivedita Sharma vs. Cellular Operators
Association of India & Ors.
39
, Embassy Property
Developments Pvt. Ltd. vs. State of Karnataka and
Others40 and recently in the case of Kalpraj Dharamshi
(supra), that nonexercise of jurisdiction under Article 226
is a rule of selfrestraint. It has been consistently held, that
37 (1969) 1 SCR 518
38 (1998) 8 SCC 1
39 (2011) 14 SCC 337
40 (2020) 13 SCC 308
130
the alternate remedy would not operate as a bar in at least
three contingencies, namely, (1) where the writ petition has
been filed for the enforcement of any of the Fundamental
Rights; (2) where there has been a violation of the principle
of natural justice; and (3) where the order or proceedings
are wholly without jurisdiction or the vires of an Act is
challenged.
130. In the foregoing paragraphs, we have held, that
2019 amendment to Section 31 of I&B Code is clarificatory
and declaratory in nature and therefore will have a
retrospective operation. As such, when the resolution plan
is approved by NCLT, the claims, which are not part of the
resolution plan, shall stand extinguished and the
proceedings related thereto shall stand terminated. Since
the subject matter of the petition are the proceedings, which
relate to the claims of the respondents prior to the approval
of the plan, in the light of the view taken by us, the same
cannot be continued. Equally the claims, which are not
part of the resolution plan, shall stand extinguished.
131
131. In this view of the matter, we find, that relegating
the appellant to the alternative remedy would serve no
purpose. A party cannot be made to run from one forum to
another forum in respect of the proceedings and the claims,
which are not permissible in law.
132. The appeal therefore is allowed. The impugned
judgment and order dated 6.7.2020 passed by the
Allahabad High Court is quashed and set aside. We hold
and declare, that the respondents are not entitled to recover
any claims or claim any debts owed to them from the
Corporate Debtor accruing prior to the transfer date.
Needless to state, that the consequences thereof shall
follow.
WRIT PETITION (CIVIL) NO.1177 OF 2020
133. For the reasons stated, I.A. for change of name of
the petitioner No.1. is allowed. Cause title be amended
accordingly.
134. The present writ petition has been filed by the
petitioners under Article 32 of the Constitution. In this case
also, the resolution plan in respect of the Corporate Debtor
(petitioner – Company) has been approved by the
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Adjudicating Authority on 24.7.2018. Pursuant thereto, the
management of the Corporate Debtor (petitioner – Company)
was transferred to the successful resolution applicant i.e.
AionJSW.
135. After the completion of CIRP on 5.1.2019, the
respondent No.2 issued a reminder to the petitioner to pay
an amount of Rs.4,49,34,917.00 towards the service tax
deposited by it towards royalty, DMF and NMET for the
period between 1.4.2016 and 30.6.2017. The petitioner
replied to the said notice pointing out to the authorities the
provisions of I&B Code and stating therein, that the demand
made by the respondent were not permissible in view of I&B
Code. The petitioners had also requested for refund of an
amount of Rs.5,25,15,880/ deposited as advance against
supply of iron ore.
136. In this background, the petitioners have
approached this Court challenging the demand notice dated
20.7.2018 and 28.4.2020.
137. The present case would also be covered by the
view taken by us hereinabove.
133
138. It is further to be noted, that the Income Tax
Authorities had approached this Court with respect to
income tax dues concerning the present petitioner by way of
Special Leave Petition (Civil) No.6483 of 2018. This Court
passed the following order in the said Special Leave Petition
on 10.8.2018:
“Heard.
Delay, if any, is condoned.
Given Section 238 of the Insolvency and
Bankruptcy Code, 2016, it is obvious that
the Code will override anything
inconsistent contained in any other
enactment, including the IncomeTax Act.
We may also refer in this Connection to
Dena Bank vs. Bhikhabhai Prabhudas
Parekh and Co. & Ors. (2000) 5 SCC 694
and its progeny, making it clear that
incometax dues, being in the nature of
Crown debts, do not take precedence
even over secured creditors, who are
private persons.
We are of the view that the High Court of
Delhi, is, therefore, correct in law.
Accordingly, the Special Leave Petitions
are dismissed.
Pending applications, if any, stand
disposed of.”
134
139. In ordinary course, we would not have
entertained such a petition directly under Article 32 of the
Constitution. However, a question of law, which arises for
consideration in the present petition has been considered by
us in this batch of matters. In that view of the matter, we
find, that it would not be in the interest of justice to nonsuit the present petitioner, when we have specifically
decided question of law, which would govern the present
case also. As such, the present petition is allowed.
140. We hold and declare, that the respondents are
not entitled to recover any claims or claim any debts owed
to them from the Corporate Debtor accruing prior to the
transfer date. Needless to state, that the consequences
thereof shall follow.
CIVIL APPEALS ARISING OUT OF SPECIAL LEAVE
PETITION (CIVIL) NOS.71477150 OF 2020
141. For the reasons stated, I.A. for intervention on
behalf of the applicant – TATA Steel BSL Limited is allowed.
142. In the present case, the appellant challenges the
judgment and order passed by the Division Bench of the
Jharkhand High Court dated 1.5.2020 vide which the
135
petitions filed by the appellant, challenging the action of the
respondent – authorities thereby, seeking to recover the
Jharkhand Value Added Tax (JVAT) for the period between
20112012 and 20122013, have been rejected. Both the
learned Judges have written separate judgments.
143. In the judgment authored by H.C. Mishra, J, the
petitions filed by the appellant were rejected on two
grounds, viz., one, that since the management of the
appellant was taken over by M/s Vedanta Limited on
4.6.2018, it was only M/s Vedanta Limited, which had locus
to file writ petitions. Secondly, it was debatable whether the
amount of JVAT shall be covered by the expressions “debt in
respect of the payment of dues arising under any law for the
time being in force and payable to the Central Government,
any State Government” so as to bring it within the definition
of “operational debt”.
144. Insofar as, the judgment authored by Deepak
Roshan, J. is concerned, the learned Judge has observed,
that since the resolution plan was approved by NCLT on
17.4.2018, 2019 amendment to Section 31(1) of I&B Code
136
would not apply to the said plan. We find, that the finding
of the High Court, that the dues owed to the State
Government and Central Government would not come
within the definition of ‘operational debt’, is incorrect in law
in the light of the view that is taken by us. So also the
finding, that since the order of NCLT is prior to the date on
which Section 31(1) of I&B Code was amended, the
provisions of Section 31 would not be applicable, also
cannot stand in view of the foregoing observations made by
us hereinabove.
145. We also find, that the High Court has erred in
holding, that the Appellant – Company does not have locus
to file the writ petitions inasmuch as, the management has
been taken over by M/s Vedanta Limited. The resolution
plan is in respect of the Corporate Debtor and the
successful resolution applicant only takes over the
management of the Corporate Debtor in accordance with the
resolution plan. The resolution applicant steps into the
137
shoes of the Corporate Debtor. As such, the finding in this
respect would also not be sustainable in law.
146. Shri Gurukrishna Kumar, learned Senior
Counsel, strenuously argued, that RP/CoC had acted in a
fraudulent manner. It is submitted, that though a notice
inviting claim was required to be published in local
newspapers where the registered office of the Corporate
Debtor was situated, the notice was published in the
newspaper of Kolkata edition. As per Regulation 6(2)(b) of
the 2016 Regulations, the said notice is required to be
published in one English and one regional language
newspaper with wide circulation at the location of the
registered office and corporate office of the Corporate
Debtor. Perusal of the record would reveal, that the notice
was published in Business Standard and Ananda Bazar
Patrika newspapers of the Kolkata edition, which have wide
circulation in Ranchi. The corporate office of the Corporate
Debtor is at Kolkata whereas its registered office is at
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Ranchi. In any case, it is to be noticed, that the Forest
Department of the State Government had filed intervention
application before NCLT as well as NCLAT. When one of the
wings of the State Government has approached NCLT and
NCLAT, it is difficult to believe, that other organ of the State
was not aware about the said proceedings.
147. The contention of Shri Gurukrishna Kumar,
learned Senior Counsel, that finding with regard to noncompliance of Section 13 is not challenged by the
Electrosteel Steels Limited, is also incorrect, inasmuch as,
Electrosteel Steels Limited has raised the specific ground in
Grounds ‘U’ to ‘ AA’ to that effect in the appeal memo.
148. In the result, the appeals deserve to be allowed. It
is ordered accordingly. The impugned judgment and order
of the Jharkhand High Court dated 1.5.2020 is quashed
and set aside.
139
149. We hold and declare, that the respondents are
not entitled to recover any claims or claim any debts owed
to them from the Corporate Debtor accruing prior to the
transfer date. Needless to state, that the consequences
thereof shall follow.
…….…....................., J.
[R.F. NARIMAN]
….…....................., J.
[B.R. GAVAI]
…….…....................., J.
[HRISHIKESH ROY]
NEW DELHI;
APRIL 13, 2021
