A K Trading Co Pvt Ltd & Ors vs Sumit Shukla & Ors

AK Trading Co. Pvt. Ltd. & Ors. ....Appellants Vs. Mr. Sumit Shukla & Ors. ...Respondents For Appellants Ms. Anju Jain, Mr. Hitesh Sachar, Mr. Surender, Advocates. For Respondents Mr. Sumant Batra, Mr. Sarthak Bhandari, Ms. Nidhi Bhandari, Mr. Anant Tripathi, Mr. Rushad Irani, Mr. Rishab Jain, Advocates for RA Mr. Sumit Shukla, Advocate for R1 PCMA Mukesh Singh Bhadauria, SRA

ORDER

(Hybrid Mode)

30.01.2024: IA No. 172 of 2024: This is an application praying for

condonation of 12 days' delay in filing the Appeal. The ground taken in the

Affidavit is that the Appellant's Advocate is in Delhi whereas Appellant resides

in Punjab which cause delay in preparing the appeal. Cause shown sufficient.

Delay is condoned.

Company Appeal (AT) (Insolvency) No. 55 of 2024

Heard Learned Counsel for the parties.

2. This Appeal has been filed against the order dated 12.09.2023 passed

by the Adjudicating Authority (National Company Law Tribunal) New Delhi

Bench-III by which order the Adjudicating Authority has allowed IA No.4505 2

of 2023 approving the Resolution Plan. The Appellant, an Operational Creditor

aggrieved by the plan approval order has come up in this Appeal.

3. Learned Counsel for the Appellant submits that there is a disparity in

the payment to the Financial Creditors as well as to the Operational Creditors.

Financial Creditors have been paid 13.9% whereas Operational Creditors have

been paid only 4.7%. It is submitted that the Operational Creditors who have

supplied goods to the Corporate Debtor were entitled payment which is just

and equitable.

4. Learned Counsel for the Successful Resolution Applicant submits that

the payment has been approved by the CoC in the commercial wisdom and

the commercial wisdom of the CoC need not interfered by the Adjudicating

Authority or this Appellate Tribunal.

5. We have considered the submissions of the Counsel for the parties and

perused the record.

6. It has been laid down by the Hon'ble Supreme Court in "Committee of

Creditors of Essar Steels India Ltd. vs. Satish Kumar Gupta- (2020) 8

SCC 531" that there cannot be parity of payment with regard to different

categories of stakeholders. The Appellant who is an Operational Creditor

cannot claim parity with Financial Creditors. Even under Section 53 of the

IBC, the payments are provided in different ladders and priorities. The amount

or percentage to the Operational Creditors cannot be claim to be of the same

amount or percentage which has been paid to the Financial Creditors.

Company Appeal (AT) (Insolvency) No. 55 of 2024 & I.A. No. 172 of 2024 3

7. We, thus, are of the view that the ground on which the Appellant sought

to question the order impugned is unsustainable. Insofar as the submission

of the Appellant that some Operational Creditors have not received the

payment as per the plan, it is always open for the Appellant to approach the

Resolution Professional for payments if the same has not yet been made.

8. Learned Counsel for the Successful Resolution Applicant submits that

he has made the entire payment.

9. Learned Counsel for the Resolution Professional also submits that the

payment as per plan has already been made and the plan has been

implemented.

10. We record the aforesaid statement. We dismiss the Appeal.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) Anjali/nn

Company Appeal (AT) (Insolvency) No. 55 of 2024 & I.A. No. 172 of 2024