Committee Of Creditors Of Educomp ... vs Ebix Singapore Pte. Ltd & Anr

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI Company Appeal (AT) (Insolvency) No. 203 of 2020 [Arising out of Order dated 02.01.2020 passed by the National Company Law Tribunal, Principal Bench, New Delhi in in C.A. No. 1816(PB) of 2019 in C.P.(IB) No. 101 (PB) 2017]

IN THE MATTER OF: Committee of Creditors of Educomp Solutions Ltd. ...Appellant

Versus Ebix Singapore Pte. Ltd. & Anr. ...Respondent Present: For Appellant: Mr. Arun Kathpalia, Sr. Advocate with Ms. Misha, Advocate

For Respondent: Mr. Ritin Rai, Sr. Advocate with Mr. Gautam Swarup, Advocate for R-1 Mr. Sumesh Dhawan for Promoters Mr. Abhishek Sharma and Ms. Ashly Cherian, Advocates for RP(R-2)

Venugopal M. J

Introduction

The Appellant (Committee of Creditors of Educomp Solutions Ltd., through

State Bank of India) has focused the present appeal being aggrieved with the

impugned order dated 02.01.2020 in C.A.No.1816(PB) of 2019 in Company

Petition (IB) No. 101(PB)2017 passed by the Adjudicating Authority ('National

Company Law Tribunal') Principal Bench, New Delhi.

2. The Adjudicating Authority in the impugned order dated 2.1.2020 in C.A.

No.1816(PB) of 2018 from paragraph 23 to 30 had observed the following: -

"23. Section 30(2)(d) of the

Code mandates the Adjudicating

Authority to ensure that there are

effective means of enforcement and

implementation of the Resolution Plan.

Similarly, the proviso to sub-section (1) of

Section 31 of the Code mandates

Adjudicating Authority to ensure effective

implementation of the resolution plan.

The object in approval of the resolution

plan is to save the corporate debtor and

to put it back on its feet. An unwilling

and reluctant resolution applicant, who

has withdrawn his resolution plan,

neither can put the corporate debtor back

to its feet nor the effective

implementation of its resolution plan can

be ensured.

24. No doubt the withdrawal of the

resolution plan at this advance stage has

Company Appeal (AT) (Insolvency) No. 203 of 2020 2 caused great prejudice to the

creditors/stake holders and legal

consequences on the withdrawal of the

resolution plan shall follow as per law.

The Resolution Professional and CoC are

free to take action as per law consequent

upon withdrawal of the resolution plan

by resolution applicant including on the

issue of refund of the earnest money

deposited by the applicant.

25. Be that as it may compelling

an unwilling and reluctant resolution

applicant to implement the plan may lead

to uncertainty. The object of the Code is

to ensure that the Corporate Debtor keep

working as a going concern and to

safeguard the interest of all the stake

holders. The provisions of the Code

mandate the Adjudicating Authority to

ensure that the successful resolution

applicant starts running the business of

the Corporate Debtor afresh. Besides

Company Appeal (AT) (Insolvency) No. 203 of 2020 3 Court ought not restrict a litigant's

fundamental right to carry on business in

its way under Article 19(1)(g) of the

Constitution. Once the applicant is

unwilling and reluctant and itself has

chosen to withdraw its resolution plan, a

doubt arises as to whether the resolution

applicant has capability to implement the

said plan. Uncertainty in the

implementation of the resolution plan

cannot also be rule out.

26. In the facts the prayer for

withdrawal of resolution plan is allowed

with cost and also subject to other legal

consequences as per law.

27. It is relevant to note here that the

Corporate Insolvency Resolution Process

against the Corporate Debtor was initiated

vide order dated 30.05.2017 passed in IB-

101(PB)/2017. Under third proviso to sub-

section (3) of Section 12 of the Code the

Company Appeal (AT) (Insolvency) No. 203 of 2020 4 corporate insolvency resolution process

period has expired on 16.11.2019.

28. Ordinarily the Corporate

Insolvency Resolution Process period must

be completed with the outer time limit

provided under the Code. However, in

exceptional cases in order to achieve a

resolution and to avoid to drive the

corporate debtor into liquidation,

Adjudicating Authority (NCLT) can extend

the outer time limit provided under the

Code.

29. It is relevant to refer to the

decision of the Hon'ble Supreme Court in

Civil Appeal No. 8766-67 of 2019 in the

matter of Committee of Creditors of Essar

Steel India Limited Versus Satish Kumar

Gupta & Or. Decided on 15th November

2019, where it was inter-alia held that:

"Thus, while leaving the

provision otherwise intact, we strike down

the word "mandatorily" as being manifestly

Company Appeal (AT) (Insolvency) No. 203 of 2020 5 arbitrary under Article 14 of the

Constitution of India and as being an

excessive and unreasonable restriction on

the litigant's right to carry on business

under Article 19(1)(g) of the Constitution.

The effect of this declaration is that

ordinarily the time taken in relation to the

corporate resolution process of the

corporate debtor must be completed within

the outer limit of 330 days from the

insolvency commencement date, including

extensions and the time taken in legal

proceedings. However, on the facts of a

given case, if it can be shown to the

Adjudicating Authority and/or Appellate

Tribunal under the Code that only a short

period is left for completion of the

insolvency resolution process beyond 330

days, and that it would be in the interest of

all stakeholders that the corporate debtor

be put back on its feet instead of being sent

into liquidation and that the time taken in

legal proceedings is largely due to factors

Company Appeal (AT) (Insolvency) No. 203 of 2020 6 owing to which the fault cannot be ascribed

to the litigants before the Adjudicating

Authority and/or Appellate Tribunal, the

delay or a large part thereof being

attributable to the tardy process of the

Adjudicating Authority and/or the

Appellate Tribunal itself, it may be open in

such cases for the Adjudicating Authority

and/or Appellate 132 Tribunal to extend

time beyond 330 days.

Likewise, even under the newly added

proviso to Section 12, if by reason of all the

aforesaid factors the grace period of 90 days

from the date of commencement of the

Amending Act of 2019 is exceeded, there

again a discretion can be exercised by the

Adjudicating Authority and/or Appellate

Tribunal to further extend time keeping the

aforesaid parameters in mind. It is only in

such exceptional cases that time can be

extended, the general rule being that 330

days is the outer limit within which

resolution of the stressed assets of the Company Appeal (AT) (Insolvency) No. 203 of 2020 7 corporate debtor must take place beyond

which the corporate debtor is to be driven

into liquidation."(emphasis given).

30. In the facts the Corporate

Insolvency Resolution Process period in the

present case is further extended by 90 days

from 16.11.2019. The Resolution

Professional and the members of Committee

of Creditors are directed to expedite the

possibility of achieving resolution of the

stressed assets of the corporate debtor

within the extended period."

and partly allowed the application in the aforesaid terms with cost of Rs. one

lakh to be paid by the 1st Respondent/Applicant in the corpus of the 'Corporate

Debtor'.

3. Challenging the validity, propriety and legality of the Impugned Order

dated 02.01.2020 passed by the Adjudicating Authority, the Learned Counsel for

the Appellant contends that the impugned order was passed in erroneous

exercise of jurisdiction by the Adjudicating Authority.

4. According to the Appellant, the Adjudicating Authority by means of the

Impugned Order had allowed the 1st Respondent / 'Successful Resolution

Applicant' to withdraw its 'Resolution Plan' (approved 'Resolution Plan') which

Company Appeal (AT) (Insolvency) No. 203 of 2020 8 was approved by a majority of 75.36% of the 'Committee of Creditors' and

pending approval before the Authority as per Section 31 of the 'I&B' Code.

Moreover, the 'Resolution Professional' of the 'Corporate Debtor' and the

'Committee of Creditors' were directed to expedite the possibility of achieving

Insolvency Resolution of the 'Corporate Debtor' within the extended period of 90

days from 16.11.2019, although the order was passed only on 2nd January,

2020.

Appellant's Submissions

5. The Learned Counsel for the Appellant submits that the Adjudicating

Authority being a creature of statute (under IBC) is bound within the four corners

of statute and cannot travel beyond its jurisdiction prescribed under the statute

and in support of the same refers to the decisions B. Himmatlal Agrawal v.

Competition Commission of India and ors. 2018 17 SCC page 421 and

Gujarat Urja Vikas Nigam Limited v. Solar Semiconductor Power Company

(India) Private Limited and Ors. (2017)16 SCC 498. Therefore, the stand of

the Appellant is that the Adjudicating Authority had wrongly allowed the plea of

withdrawal of 'Resolution Plan' beyond its jurisdiction.

6. The Learned Counsel for the Appellant comes out with a plea that it is within

the exclusive ambit of the 'Committee of Creditors' to examine and determine the

feasibility and viability of the approved 'Resolution Plan' and the Impugned Order

is an erroneous one because of the reason that the Adjudicating Authority could

not permit a 1st Respondent / 'Resolution Applicant' to withdraw from the

Company Appeal (AT) (Insolvency) No. 203 of 2020 9 commitment made before the 'Committee of Creditors' which had crystallized

into a concluded contract.

7. The plea of the Appellant is that the reasoning of the Adjudicating

Authority in the Impugned Order about the impracticability to implement a plan

by an unwilling 'Resolution Applicant' has conferred sanctity to an unlawful

conduct of the 1st Respondent and also defeated the objective of the Code.

8. The Learned Counsel for the Appellant to lend support to its contention

that an 'Adjudicating Authority' is not to encroach upon the majority decision of

the 'Committee of Creditors' except for the grounds specified under sub-section

(a) to (e) of Section 30(2) of the 'I&B' Code relies on the judgement of the Hon'ble

Supreme Court in the case of 'Committee of Creditors' of 'Essar Steel Ltd.'

Vs. 'Satish Kumar Gupta and Ors.' (Civil Appeal No. 8766-67 of 1999 dated

15.11.2019) and the decision of the Hon'ble Supreme Court in 'K.Sashidhar'

Vs. 'Indian Overseas Bank' reported in 2019(3) Scale Page 6.

9. The Learned Counsel for the Appellant comes out with an argument that the

request for a 'Resolution Plan' prepared as per Section 25(2)(h) of the 'I&B' Code

clearly mentioned that 'no change or supplemental information to the 'Resolution

Plan' shall be accepted after the 'Resolution Plan' submission date and in this

regard the Learned Counsel for the Appellant refers to Clause 1.13.5 of the

'RFRP'.

10. It is represented on behalf of the Appellant that Clauses 1.8.4 of the 'RFRP'

as well as Clause 1.10(1) clearly stipulated that a 'Resolution Plan' is irrevocable

Company Appeal (AT) (Insolvency) No. 203 of 2020 10 and a 'Successful Resolution Applicant' was not permitted to withdraw the

'Approved Resolution Plan'.

11. Yet another contention of the Appellant is that the 1st Respondent /

'Successful Resolution Applicant' had discussed, and consented to a 'Resolution

Plan' after accepting the conditions is not to be allowed to withdraw a mutually

consented 'Resolution Plan' and withdraw from a legally binding Plan based on

the plea of delay, which was not in the hands of 'Committee of Creditors' at all.

12. The Learned Counsel for the Appellant submits that to claim the validity

of the 'Approved Resolution Plan' was only six months is misplaced, as the said

period of six months in clause 1.8.3 of 'RFRP' is the minimum validity period

and in fact Clause 7 of the Approved Resolution Plan when read in the context

of 'RFRP' (of which it was required to be compliant) is only a reference to the

'Resolution Plan' being valid for six months for acceptance of the 'Committee of

Creditors'.

13. The Learned Counsel for the Appellant contends that the 1st Respondent

/ 'Successful Resolution Applicant' in accordance with 'RFRP' had conducted its

own due diligence and appraisal of the 'Corporate Debtor' and after receipt of full

information relating to the affairs of the 'Corporate Debtor' had submitted its

'Resolution Plan' to the 'Committee of Creditor' which was after extensive

negotiations approved by 75.36% majority. Also that it is the stand of the

Appellant that the 1st Respondent / 'Successful Resolution Applicant' continues

to be interested in the 'Corporate Debtor', as is evident from the letter sent by it

Company Appeal (AT) (Insolvency) No. 203 of 2020 11 on 1.6.2020, having seen interest in the 'Corporate Debtor' and emphasizing

that the software licences granted by the 'Corporate Debtor' have become more

relevant in the current circumstances where online education appears to be only

viable medium of education.

14. The Learned Counsel for the Appellant submits that the reliance placed on

the side of 1st Respondent / 'Successful Resolution Applicant' in regard to the

applications filed by Creditors seeking investigations is misconceived because of

the reason that said applications were filed in May, 2018 and the said

applications were disposed of on 9.8.2018(viz. before the orders were reserved

on the approval application).

15. The Learned Counsel for the Appellant brings it to the notice of this

Tribunal that Section 32A of the 'I&B' Code grants immunity to a 'Resolution

Applicant' from any offences committed by the 'Corporate Debtor' prior to the

commencement of CIRP and provides certainty to the 'Successful Resolution

Applicant', that the assets of the 'Corporate Debtor' has represented would be

available in the same manner as at the time of submission of a 'Resolution Plan',

which was recognized in the judgement of this Tribunal in 'JSW Steel Limited'

Vs. 'Mahender Kumar Khandelwal and Anr.' (vide Company Appeal

(AT)(Ins.) No. 957 of 2019). Hence, because of the protection granted u/s 32A

of the Code, the withdrawal of 'Resolution Plan' by the 'Successful Resolution

Applicant' citing SFIO Investigation into the affairs of 'Corporate Debtor' is an

incorrect one and in this connection on behalf of the Appellant a reference was

Company Appeal (AT) (Insolvency) No. 203 of 2020 12 made to the order dated 16.03.2020 of Delhi High Court in W.P. (CRL.) 3037/2019 'Tata Steel BSL Limited' and Ors. Vs. 'Union of India and Ors.'

16. The Learned Counsel for the Appellant points out that the reliance placed

by the 'Successful Resolution Applicant' in regard to the judgement of this

Tribunal in 'Tarini Steel Company Pvt. Ltd.' Vs. 'Trinity Auto Components

Ltd.'(Company Appeal (AT)(Ins.) 75/2018) is not correct because of the reason

that the said judgement had allowed withdrawal of the Plan owing to the onerous

modifications set forth by the Adjudicating Authority itself, thereby altering the

basis of the 'Approved Resolution Plan' therein. Likewise, the reliance placed by

the 1st Respondent / 'Successful Resolution Applicant' in respect of the order of

'Satya Narain Malu' Vs. 'SBM Paper Mills' in MA 1396/2018, 827/2018,

1142/2018 and 828/2018 in CP(IB)-1362(MB)/2017 is an erroneous one, as

in the given case, the withdrawal of the 'Resolution Plan' was allowed on account

of settlement plan submitted by the 'Corporate Debtor' therein, had offered better

value to the creditors of the 'Corporate Debtor'.

17. Continuing further, the Learned Counsel for the Appellant points out that

the reliance placed by the 'Successful Resolution Applicant' on the judgement of

CIRP process of 'Metalyst Forging Ltd.' (Company Appeal

(AT)(Ins.)1276/2019) is of no significance, since in the said case the finding was

in regard to the inadequacy of information in the 'Information Memorandum'

whereas in the present case, no such finding was recorded by the Adjudicating

Authority.

Company Appeal (AT) (Insolvency) No. 203 of 2020 13

18. The Learned Counsel for the Appellant contends that the Adjudicating

Authority firstly had allowed the withdrawal of the 'Approved Resolution Plan'

and later granted only 42 days, when the Insolvency and Bankruptcy Board of

India(Insolvency Resolution Process for Corporate Persons) Regulations, 2016

envisages a minimum period of 105 days to complete the entire process,

demoralizes the interests of 'Committee of Creditors' and other stakeholders of

the 'Corporate Debtor' but also places the 'Corporate Debtor' at the brim of

liquidation.

19. The Learned Counsel for the Appellant submits that upon the 'Approved

Resolution Plan' being put to vote, 74.16% of 'Committee of Creditors' voted in

favour of the 'Approved Resolution Plan'. Later, the 'Chhatisgarh State

Electricity Board Gratuity and Pension Trust' and 'Chhatisgarh State

Electricity Board Provident Fund Trust'(collectively CSEB)(having a vote

share of 1.195%) vide e.mail dated 23.3.2018 requested its vote to be treated as

'yes' for having not participated in lieu of a technical error.

20. On behalf of the Appellant, it is brought to the notice of this Tribunal that

as the voting share in favour of the 'Approved Resolution Plan' would be 75.36%,

the 'Resolution Professional' filed an application CA No. 165(PB)2018 before the

Adjudicating Authority seeking directions among other things on the future

course of action to be adopted and on 28.2.2018, the Adjudicating Authority had

directed the 'Resolution Professional' to file an approval application and the issue

Company Appeal (AT) (Insolvency) No. 203 of 2020 14 regarding the votes received late shall be considered along with the approval

application.

21. The Learned Counsel for the Appellant contends that in view of the law

laid down by this Tribunal in 'Jyoti Structures Ltd.' (Company Appeal)

(AT)(Ins.) No. 461/2018 and upheld by the Hon'ble Supreme Court in Civil

Appeal No. 3434-3436 of 2019 as per order dated 15.04.2019. The e.mail

from 'CSEB' intimating the 'Resolution Professional' in regard to the technical

mal-function and non-recording of its affirmative vote, having been received

earlier to the lapse of 270 days period (i.e. 27.2.2018) and hence, the said plea

is not to be countenanced in the eye of Law.

23. The Learned Counsel for the Appellant contends that the grounds raised

by the 'Successful Resolution Applicant' in CA 1816(PB) of 2019 (withdrawal

application) were raised already and rejected in CA 1252(PB) of 2019 in CP(IB)No.

101(PB) of 2017 (dismissed application) as per order dated 10.07.2019. Further,

once the matter whether on a question of fact or question of Law was decided

between the two parties in one suit or proceeding and the decision is final neither

party will be allowed in future to canvass the said matter again and refers to the

decisions (i) Nagabhushanammal v. C. Chandikeshwaralingam (2016) 4 SCC

434 (ii) Hope Plantations Ltd. v. Taluk Land Board, Peermade and Anr.

(1999) 5SCC 590; and (iii) Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi

and Anr. AIR 1960 SC 941. When the Adjudicating Authority had rejected the

Company Appeal (AT) (Insolvency) No. 203 of 2020 15 aforesaid pleas and reliefs raised by the 'Successful Resolution Applicant' in the

dismissed application, the withdrawal application' was barred by 'Res Judicata'.

24. The Learned Counsel for the Appellant submits that the plea of the

'Successful Resolution Applicant' and the finding rendered by the Adjudicating

Authority that the prayer for 'withdrawal' was not considered while disposing of

CA 1252(PB)/2019 is in the teeth of the very principle of 'Res Judicata' as

elucidated by various Courts which held that the relief must be deemed to have

been denied for what was claimed but not granted necessarily gets denied in

judicial or quasi-judicial proceedings as per decision 'State Bank of India' Vs.

'Ram Chandra Dubey', (2001) 1 SCC Page 73, reiterated in the decision of

Hon'ble Supreme Court A.P.S.R.T.C. and Ors. Vs. 'B.S. David Paul', (2006)

2 SCC page 282.

25. The Learned Counsel for the Appellant points out that Rule 11 of the

'National Company Law Appellate Rules, 2016' has recognised the inherent

powers in regard to the matters relating to the court for meeting the ends of

justice.

26. The Learned Counsel for the Appellant relies on the decision of Hon'ble

Supreme Court in 'Arcelor Mittal India Pvt. Ltd.' Vs. 'Satish Kumar Gupta'

(2019)2 SCC page 1 at special page wherein at paragraph 86 it is observed

'that the act of the Court shall harm no man'.

27. The Learned Counsel for the Appellant refers to the decision of the Hon'ble

Supreme Court 'Swiss Ribbon' Vs. 'Union of India'; (2019)4 SCC at page 17

Company Appeal (AT) (Insolvency) No. 203 of 2020 16 wherein at paragraph 11 and 12 it is observed that the intent of the Code is

to ensure revival and continuation of the 'Corporate Debtor' as a going concern

and Liquidation is to be only a last resort.

28. The Learned Counsel for the Appellant cites the order of High Court of

Delhi dated 16.3.2020 in WP (Crl.)3037/2019 and Crl. MA 39126/2019 'Tata

Steel BSL Ltd.' and Ors. Vs. 'Union of India and Ors.' wherein at paragraph

6 (by referring to Section 32A(1 of IBC as inserted by the Amendment Act) had

clearly observed that from the express language of the aforesaid provision that a

'Corporate Debtor' would not be liable for any offence committed prior to the

commencement of CIRP and the 'Corporate Debtor' would not be prosecuted if a

'Resolution Plan' was approved by the Adjudicating Authority.

29. The Learned Counsel for the Appellant refers to the order dated

13.03.2020 in WP (Crl.) 712/2020 MA Nos. 5449 and 5450 of 2020 wherein by

relying on Section 32A(1 of IBC)the Writ Petition was allowed because of the fact

that there was no dispute that 'Resolution Plan' was approved by the

Adjudicating Authority and the impugned order dated 16.8.2019 and the

impugned summons dated 21.8.19 were set aside and the impugned complaint

(CC No. 770/2019) against the Petitioner therein was also set aside and further

it was clarified that this order would not affect the prosecution of the erstwhile

promoter or any of the officers who may be directly responsible for committing

the offences in relation to the affairs of the petitioner company.

1st Respondent's Contentions

Company Appeal (AT) (Insolvency) No. 203 of 2020 17

30. Per Contra it is the submission of Learned Counsel for 1st Respondent /

'Resolution Applicant' that the doctrine of 'Res Judicata' or Constructive 'Res

Judicata' has no applicability to the facts of the instant case and its application

to deny a 'Resolution Applicant' is right to withdraw a 'Resolution Plan' after the

expiry of its validity period would result in denial of justice for the

undermentioned reasons:-

a) CA 1252/2019 was filed to seek

information regarding the financial

condition of the Corporate Debtor given the

long lapse of time since the submission of

the Resolution Plan and upon receipt of that

information, to seek (if necessary)

revaluation of the Plan.

b) In the light of law laid down in Deccan

Value case, the Adjudicating Authority

dismissed the application CA 1252/2019

on 10.07.2019 as no ground for revaluation

was made out. Further, the Adjudicating

Authority in CA 1252/2019 had restricted

adjudication to issues concerning the non-

grant of information and material sought by

the Resolution Applicant and hence, the

Company Appeal (AT) (Insolvency) No. 203 of 2020 18 consequent relief of 'revaluation of the Plan'

are indeed 'withdrawal' thereof was not

dealt with.

c) The cause of action for CA No.

1816/2019 was completely different, as it

was premised on an acceptance of the

unavailability of information, and on account

of various factors including the erosion of

commercial substratum of the 'Corporate

Debtor' sought withdrawal of the 'Resolution

Plan' simpliciter.

d) No reasons were furnished and there was

no bar for the 'Resolution Applicant' later

exercising his right and entitlement to

withdraw the 'Resolution Plan' on the basis

that its validity had expired and he was no

longer interested in pursuing the same.

e) The Adjudicating Authority had not

consciously adjudicated the issue of

'withdrawal of 'Resolution Plan' filed by the 1st

Respondent which is evident from the order

dated 10.07.2019 in CA 1252 of 2019 and

Company Appeal (AT) (Insolvency) No. 203 of 2020 19 confirmed by the express findings of the

Adjudicating Authority in the impugned order.

f) The order dated 10.07.2019 in CA

1252/2019(disentitling the 'Resolution Applicant'

to financial information of the 'Corporate Debtor')

cannot act as a bar to the 'Resolution Applicant'

in exercising its right to withdraw the plan (after

the expiry of its validity period), the 'Resolution

Applicant' filed CA 1816/2019 which was

allowed by the impugned order.

g) There is no infirmity in the impugned order

which appreciates that there was no conscious

adjudication of the principal issue that arises in

the present proceedings viz. the right of a

'Resolution Applicant' to withdraw its 'Resolution

Plan' after the expiry of its validity and that the

disposal of CA 1252 of 2019 would not act as a

bar in filing CA 1816/2019 on the principle of

'Res Judicata' or constructive 'Res Judicata'.

31. The Learned Counsel for the 1st Respondent contends that the 'withdrawal

of 'Resolution Plan' was legally permissible as per the terms of the documents

governing the CIRP of the 'Corporate Debtor' and also under the Code. In this

Company Appeal (AT) (Insolvency) No. 203 of 2020 20 connection, the plea of the 1st Respondent is that the contractual stipulations

forming the basis of the 'Resolution Plan' read with the scheme of the code allow

for withdrawal of the 'Resolution Plan' prior to the approval of the Adjudicating

Authority, upon lapse of stipulated time frame. Moreover, the 'Resolution Plan'

was rendered commercially unviable on account of lapse of substantial time and

severe and inordinate delays in the 'Corporate Insolvency Resolution Process'

qua the 'Corporate Debtor'.

32. The Learned Counsel for the 1st Respondent points out that severe mis-

management and gross financial irregularities and fraud in the affairs of

'Corporate Debtor' during the period from (2014-2018) was subsequently

uncovered combined with regulatory and criminal investigations into the

financial affairs of the 'Corporate Debtor'.

33. The Learned Counsel for the Respondent emphatically takes a plea that

the 'RFRP' issued by the 'Committee of Creditors' inviting prospective applicants

to submit 'Resolution Plan' is similar to the request for proposal or invitation to

tender and the 'Resolution Plans' submitted by the Applicants in response to

such invitation or 'offers' / 'proposal' comparable to tenders. In this regard, the

learned Counsel for the 1st Respondent adverts to Clause 1.1.5 of 'RFRP' which

reads as under:-

"The intent of this RFRP is to request

Resolution Plan(s) from Resolution Applicant(s)

who may willing to submit a resolution plan for

Company Appeal (AT) (Insolvency) No. 203 of 2020 21 the Company in accordance with the terms of

this RFRP, the IB Code and other Applicable

Law".

34. The Learned Counsel for the 1st Respondent refers to Clause 1 of the

covering letter for submission of 'Resolution Plan' (format 1, Annexure III to the

RFRP) which runs as follows: -

"We, the undersigned Resolution Applicant

having read and examined in detail the RFRP

and the Information Memorandum, set out the

offer and the related information in relation to the

resolution of Educomp Solutions Ltd."

35. In pith and substance, the stand of the 1st Respondent is that 'RFRP' issued

by the Appellant is an invitation to offer' and that the 'Resolution Plan' is an

'offer' submitted by the 1st Respondent pursuant to the 'RFRP' in short such an

offer being a qualified one, it binds the offer or / promise or i.e. the 'Resolution

Applicant' only when such an offer is accepted as per its term.

36. The other contention advanced on behalf of the 1st Respondent is that the

covering letter for submission of 'Resolution Plan' explicitly points out that all

the terms and conditions of the 'Resolution Plan' would be valid for acceptance

for a period of six months from the date of submission of the Plan and as such

the 'Resolution Plan' submitted by the 1st Respondent is to be a qualified offer,

which is not open for an acceptance for an indefinite period. Also that when

Company Appeal (AT) (Insolvency) No. 203 of 2020 22 there was a delay of several months in the approval of 'Resolution Plan' the 1st

Respondent is at liberty to withdraw from 'RFRP' after completion of six months

from the date of submission of 'Resolution Plan' as per decision of Hon'ble

Supreme Court 'Riya Travel & Tours (India)(P) Ltd. v. C.U. Chengapa,(2001)

9 SCC 512.

37. The Learned Counsel for the 1st Respondent refers to Clause 1.1.6 of

'RFRP' which visualises that the 'Resolution Plan' submitted by the 'Resolution

Applicant' would be binding on all the parties (specifically including the

'Resolution Applicant') only upon the approval of the Adjudicating Authority in

terms of Section 30(6) of the Code. It is the contention of the 1st Respondent

that when such approval is yet to be granted, in view of which, even as per terms

of 'RFRP' the 'Resolution Plan' cannot be said to be binding on the 'Resolution

Applicant' merely upon approval by the 'Committee of Creditors'.

38. The Learned Counsel for the 1st Respondent submits that even from clause

1.10(1) of 'RFRP' the 'Resolution Plan' shall be binding on the 'Resolution

Applicant' only upon the approval of the Adjudicating Authority and it is only

from such point that the 'Resolution Applicant' would not be permitted to

withdraw the 'Resolution Plan'. Therefore, it is quite clear that the 'Application

for Withdrawal' filed by the 'Resolution Applicant' was earlier to the stage of

approval by the 'Adjudicating Authority' u/s 30(6) of the 'I&B' Code.

39. The Learned Counsel for the 1st Respondent takes a stand that the

'Corporate Debtor' was admitted into insolvency on 30.5.2017 by the

Company Appeal (AT) (Insolvency) No. 203 of 2020 23 Adjudicating Authority and that on 13.11.2017 the 'Corporate Insolvency

Resolution Process' was extended by 90 days till 24.2.2018 because of the reason

that there was no significant progress in 'CIRP'. Apart from that, a request for

'Resolution Plans' was issued by the Appellant on 05.12.2017 and pursuant to

the 'RFRP', the 'Resolution Plan' was submitted by the 1st Respondent on

19.02.2018(as amended on 21.2.2018). Further, as the statutory period was

coming to an end on 24.2.2018, at the time of hearing before the Adjudicating

Authority on 27.2.2018, the 'CIRP' qua the 'Corporate Debtor' was extended by

the Adjudicating Authority with a direction to the 'Resolution Professional' to

continue to discharge all its functions as 'Resolution Professional' under the code

till further orders. Later, on 7.3.2018, an application was filed by the 'Resolution

Professional' before the Adjudicating Authority for approval of 'Resolution Plan'.

40. The Learned Counsel for the 1st Respondent brings it to the notice of this

Tribunal that on 2.7.2018 the 'Resolution Applicant' addressed a letter to the

'Resolution Professional' noting that the validity of the 'Resolution Plan' as

expiring in August and that it would be Perforced to among other things,

withdraw the 'Resolution Plan' on account of complete erosion of the commercial

substratum of the 'Corporate Debtor'. However, no reply was received by the 1st

Respondent to the said letter which points out the fact that after August, 2018,

the 'Resolution Applicant' was at full liberty to withdraw its plan and upon such

withdrawal, it would follow that such plan would be not capable of being

implemented. Moreover, after lapse of more than 18 months from the date of

submission of 'Resolution Plan' viz. 19.2.2018 and 27 months from the CIRP Company Appeal (AT) (Insolvency) No. 203 of 2020 24 commencement date, the application for its approval was still pending before the

Adjudicating Authority on 10.09.2019 when the application for withdrawal of the

Plan filed by the 1st Respondent culminated in the impugned order.

41. It is represented on behalf of the 1st Respondent that erosion of

commercial considerations underlying the 'Resolution Plan' / 'offer'/constitutes

sufficient basis for withdrawal of the 'Resolution Plan' and in this connection,

on behalf of the 1st Respondent, reliance is placed of the judgement rendered by

this Tribunal in 'Tarini Steel Company Pvt. Ltd.' V. 'Trinity Auto Company

Ltd. and another' reported in 2018 SCC online NCLAT page 650.

42. The Learned Counsel for the 1st Respondent points out that subsequent to

the submission of 'Resolution Plan', reports of fraud and mis-management of the

affairs of 'Corporate Debtor' related to the period from 2014-2018 emerged and

in a meeting convened on 13.8.2018, the Appellant passed a Resolution with

77.85% for an appointment of an independent agency to conduct a special

investigation audit of the 'Corporate Debtor'. As a matter of fact, the said

Resolution was in pursuance of the orders of the Adjudicating Authority which

took note of the allegations against the 'Corporate Debtor' and directed the

'Resolution Professional' to file an application to that effect and the 'Special Audit'

is yet to be conducted.

43. The Learned Counsel for the 1st Respondent submits that the 'Resolution

Applicant' later discovered the initiation of investigations by Serious Fraud

Investigation office which too led the Resolution Applicant to believe that the

Company Appeal (AT) (Insolvency) No. 203 of 2020 25 affairs of the 'Corporate Debtor' were being severely mis-managed and were

exposed to criminal investigations. Under these identical circumstances, the

'Resolution Plan' was permitted to be withdrawn as it was held to be

commercially unworkable as per order dated 7.2.2020 in CA

(AT)(Ins.)1276/2019, 'Committee of Creditors' of 'Metalyst Forging Ltd.' V.

'Deccan Value Investors L.P. and ors.'. Further that this Tribunal affirmed

the decision of the Adjudicating Authority in 'Deccan Value Investors L.P. and

'DVI PE (Mauritius) Ltd.' Vs. 'Deutsche Bank AG' reported in 2019 SCC

online NCLT page 731.

44. The Learned Counsel for the 1st Respondent submits that an 'Adjudicating

Authority' is to independently satisfy itself that in terms of Section 30(2)(d) there

are adequate provisions for 'implementation and supervision of the 'Resolution

Plan' and this position is well supported by the decisions of Hon'ble Supreme

Court 'K.Shashidhar' V. 'Indian Oil Corporation' 2019 SCC online 257

para 42 and the 'Committee of Creditors' of 'Essar Steel' V. 'Satish Kumar

Gupta and Ors.' 2019 SCC online 1478 at para no. 47.

45. The Learned Counsel for the 1st Respondent takes a plea that it is well

within the powers of the Adjudicating Authority and also this Tribunal to

withhold approval to the Plan and / or allow the withdrawal thereof as per

'Inherent powers'.

46. In regard to the plea of 'Res Judicata', the Learned Counsel for the 1st

Respondent contends that the 'Resolution Applicant' could not have sought

Company Appeal (AT) (Insolvency) No. 203 of 2020 26 withdrawal of the 'Resolution Plan' in CA 1252/2019 without having been

provided with a information and material sought and in view of this aspect

alone, the applicability of the doctrine of 'Res Judicata' or constructive 'Res

Judicata' ought to be ruled out. In fact, the relief prayed for in C.A. 1252/2019

clearly shows that the 'Resolution Applicant' was seeking information and details

relating to the various events and sought to ascertain the financial position of

the 'Corporate Debtor'. As a matter of fact, only consequent upon being provided

with such information and material, that the 'Resolution Applicant' also sought

leave to suitably revaluate and revise the 'Resolution Plan'. Therefore, it is clear

that de hors being provided with the said material, the relief of 'Revaluation' or

revision of the 'Resolution Plan' does not arise at all. When the antecedent relief

(of being provided with the financial information) is not granted, the question of

granting the subsequent relief cannot arise.

47. The Learned Counsel for the 1st Respondent submits that the cause of

action leading to CA No. 1816 of 2019 and the relief sought therein were wholly

indifferent. Indeed, the Adjudicating Authority had denied the requests of the

Appellant to seek information and details relating to the affairs of the 'Corporate

Debtor' and having accepted the said order and given up the right to such

information and material, the 'Resolution Applicant' therefore, merely sought

withdrawal of the 'Resolution Plan' simpliciter.

48. The Learned Counsel for the 1st Respondent refers to the decision of

Hon'ble Supreme Court in 'Escorts Firms Ltd.' V. 'Commissioner Kumaon

Company Appeal (AT) (Insolvency) No. 203 of 2020 27 Division, Nainital, U.P. and Ors., (2004) 4 SCC page 281 at special page

305 wherein it is observed as under: -

"51. Res Judicata is a plea available in

civil proceedings in accordance with

section 11 of the Code of Civil Procedure.

It is a doctrine applied to give finality to

'lis' in original or appellate proceedings.

The doctrine in substance means that an

issue or a point decided and attaining

finality should not be allowed to be

reopened and re-agitated twice over. The

literal meaning of res is 'everything that

may form an object of rights and includes

an object, subject matter or status' and

res judicata literally means: 'matter

adjudged: a thing judicially acted upon or

decided; a thing or matter settled by

judgement'. Section 11 of CPC engrafts

this doctrine with a purpose that a 'final

judgement rendered by a court of

competent jurisdiction on merits is

conclusive as to the rights of the parties

and their privies, and, as to them, Company Appeal (AT) (Insolvency) No. 203 of 2020 28 constitutes an absolute bar to a

subsequent action involving the same

claim, demand or cause of action."

49. The Learned Counsel for the 1st Respondent points out that in the decision

of Hon'ble Supreme Court 'S.Labbai' v. 'Hanifa' AIR 1976 SC 1569 wherein

one of the essential requirements for applicability of the doctrine of 'Res Judicata'

is observed that "The matter directly and substantially in issue in the subsequent

suit must have been heard and finally decided by the court in the first suit....."

50. The Learned Counsel for the 1st Respondent relies on the decision of Hon'ble

Supreme Court 'Kaushik Cooperative Building Society' v. N.Parvathamma

(2017) 13 SCC 138' whereby and whereunder it is observed as follows:-

"To constitute matter resjudicata, the

conditions to be proved are that the litigating

parties are the same, that the subject matter

is also identical and the matter has been

finally decided between the parties by a court

of competed jurisdiction".

51. The Learned Counsel for the 1st Respondent contends that there was no

conscious adjudication on merits of the issues arising in C.A. 1816/2019 in the

earlier order dated 10.9.2019 arising out of CA 1252/2019 and in fact the order

dated 10.9.2019 is not a 'reasoned order' with a view to attract the application of

the doctrine of 'Res Judicata'.

Company Appeal (AT) (Insolvency) No. 203 of 2020 29

52. The Learned Counsel for the 1st Respondent cites the following Supreme

Court decisions: -

i) In the decision Daryo v. State of UP (1962) 1 SCR 574, 591 wherein it is

observed as under: -

"26....If a Writ Petition is dismissed

in limine and an order is pronounced in

that behalf, whether or not the dismissal

would constitute a bar would depend

upon the nature of the order. If the order

is on merits it would be a bar; if the order

shows that the dismissal was for the

reason that the petitioner was guilty of

laches or that he had an alternative

remedy then such dismissal cannot be

treated as creating a bar of res judicata.

It is true that, prima facie, dismissal in

limine even without passing a speaking

order in that behalf may strongly suggest

that the court took the view that there

was no substance in the petition at all;

but in the absence of a speaking order it

would not be easy to decide what factors

Company Appeal (AT) (Insolvency) No. 203 of 2020 30 weighed in the mind of the court and that

make it difficult and unsafe to hold such

a summary dismissal on merits and as

such constitutes a bar of res judicata

against a similar petition filed under

Article 32, because in such a case there

has been no decision on the merits by the

Court..."

ii) In Erach Boman Khavar v. Tukaram Shridhar Bhat (2013) 15 SCC 655

it is held as follows: -

"39. From the aforesaid authorities it is clear

as crystal that to attract the doctrine of res

judicata it must be manifest that there has

been a conscious adjudication of an issue. A

plea of res judicata cannot be taken aid of

unless there is an expression of an opinion on

the merits.

50. The principles stated in Arjun Singh,

Satyadhyan Ghosal and the other authorities

clearly spell out that the principle of res judicata

operates at the successive stages in the same

litigation but, the basic foundation of res

Company Appeal (AT) (Insolvency) No. 203 of 2020 31 judicata rests on delineation of merits and it

has atleast an expression of an opinion for

rejection of an application. As is evident, there

has been no advertence on merits and further

the learned company judge had guardedly

stated two facets, namely, "not necessary to

grant the present Judge's summons" and

"liberty to the applicant to apply if necessary".

On the seemly reading of the order we have no

shadow of doubt that the same not have been

treated to have operated as res judicata as has

been held by the Division Bench. Therefore, the

irresistible conclusion is that the Division Bench

had fallen into serious error in dislodging the

order leave by the learned Company Judge to

file a fresh suit."

iii) In Ferro Alloys Corpn.Ltd. & Anr. V. Union of India (1999) 4 SCC 149 it

is observed as follows: -

"24. It is obvious that in the

aforesaid proceedings no issue arose for

consideration as to whether ....Consequently

whatever observations might have been made by

Company Appeal (AT) (Insolvency) No. 203 of 2020 32 this Court while dealing with Issue 4, cannot be

said to be an express decision on the vexed

question as to whether the assessment of the

need for chrome ore, so far as the appellant is

concerned.. It is therefore difficult to agree with

the contention of the learned Senior Counsel for

the respondents that such an issue was

expressly adjudicated upon by this court in the

aforesaid decision and the findings thereon,

therefore, could not be made the subject matter

of fresh proceedings between the parties. Not

only were the contesting parties not heard on the

issue but also there was no final decision thereon

inter se these parties...."

iv) and the observations in Daryo v. State of UP (1962) 1 SCR 574, 591 were

supported by the decision of Hon'ble Supreme Court in Kunhayammed v. State of

Kerala (2000) 6 SCC at page 359.

v) In Ajay Arjun Singh v. Sharadendu Tiwari and Ors. 2016 6 SCC 576 it is

observed and held that 'a vague, cryptic and casual order in former proceeding

containing finding that was neither directly in issue nor properly examined cannot

amount to 'Res Judicata'.

Company Appeal (AT) (Insolvency) No. 203 of 2020 33

53. The Learned Counsel for the 1st Respondent points that Section 74 of the 'I&B'

Code which prescribes punishment for breaching the terms of moratorium order or

'Resolution Plan' u/s 14 is inapplicable to the facts of the instant case and in this

connection relies on the decision Ashok Paper Kamgar Union V. Dharam Godha,

(2003) 11 SCC page 1 wherein it is held that 'in order to constitute contempt the

order of the court must be of such a nature which is capable of execution by the

person charged in normal circumstances. It should not require any extraordinary

effort nor should be dependent either wholly or in part, upon any act or omission of

a third party for its compliance. This has to be judged having regard to the facts

and circumstances of each case.

54. Also the Learned Counsel for the 1st Respondent refers to the decision

Chhotey Lal V. L.Chaukilal Alias Hari Shankar 1952 SCC wherein at para 5 it is

among other things observed that what is material is the existence of the intention

not to pay the demanded arrears and not the reason or motive for that intention.

55. The Learned Counsel for the 1st Respondent seeks in aid of the decision of

Hon'ble Supreme Court S.Sundaram Pillai V. Pattabiraman (1985) 1 SCC at page

591 at special page 606 wherein at paragraph 26 it is observed as under:-

...." a consensus of the meaning of

the words willful defaults appears to indicate

that default in order to be willful must be

intentional, deliberate, calculated and

conscious, with full knowledge of legal

Company Appeal (AT) (Insolvency) No. 203 of 2020 34 consequences flowing therefrom. Taking for

instances, where a tenant commits default after

default despite oral demands or reminders and

fails to pay the rent without any just or lawful

cause, or it cannot be said that he is not guilty

of willful default because such a course of

conduct manifestly amounts to willful default

as contemplated either by the act or by other

Acts."

2nd Respondent's Pleas

56. The Learned Counsel for the 2nd Respondent submits that three

'Financial Creditors' of the 'Corporate Debtor' filed applications seeking a

Special Investigation Audit / Investigation into the affairs / certain

transactions entered into prior to the 'CIRP' and that 'Financial Creditor' and

'COC' Members had filed CA 358/2018(IFC applications) on 3.5.2018, Axis

Bank ('Financial Creditor'/COC Member) filed CA 448(PB) of 2018 on

31.5.2018 and State Bank of India preferred CA 639(PB) of 2018 around July,

2018 seeking investigation of the affairs / transactions of the 'Corporate

Debtor' with respect to the statements / irregularities in the affairs of

'Corporate Debtor' in its Annual Accounts on the basis of certain articles /

Media Reports published in a publication 'the Wire'.

Company Appeal (AT) (Insolvency) No. 203 of 2020 35

57. According to the 2nd Respondent the aforesaid applications along with

the plan approval application were heard by the 'Adjudicating Authority' and

that the 'Resolution Professional' was directed to convene COC meeting to

discuss about these applications and pursuant to the directions in terms of the

order dated 9.8.2018, the 13th COC meeting of the 'Corporate Debtor' took place

on 13.8.2018 and a 'Resolution' for conducting special investigation audit of

the 'Corporate Debtor' by an independent agency was approved by the

'Committee of Creditors' by voting share of 77.85%. Also, it was resolved that

an application would be filed by the 'Resolution Professional' seeking consent

/ order of the Adjudicating Authority to conduct the 'Special Investigation

Audit'.

58. The Learned Counsel for the 2nd Respondent points out that the

'Resolution Professional' filed CA 793(PB) of 2018 Investigation Audit Application

in view of the order dated 28.2.2018 and in accordance with the resolutions

passed in 13th 'Committee of Creditors' meeting, seeking directions to carry out

the investigation audit of the 'Corporate Debtor'. As a matter of fact, at this point

of time, the 1st Respondent / 'Resolution Applicant' was participated in the

proceeding in the matter and was aware of all directions issued by the

Adjudicating Authority in respect of these applications.

59. The Learned Counsel for the 2nd Respondent brings to the notice of this

Tribunal that on 4.10.2018 the Adjudicating Authority had directed the

'Resolution Professional' to file an affidavit in relation to the transactions carried

Company Appeal (AT) (Insolvency) No. 203 of 2020 36 out by the 'Corporate Debtor' as per section 43,45,50 and 66 of the 'I&B' Code.

Hence, the 'Resolution Professional' filed a short affidavit dated 8.,10.2018

pertaining to a Transaction Audit' conducted by BDO u/s 43,45,50 and 66 of the

Code, on 6.12.2016. In fact, by means of the said affidavit, the 'Resolution

Professional' mentioned that on the basis of Books of Accounts and other relevant

materials, no transactions in his opinion were found which required to be avoided

or were fraudulent in terms of Section 43, 45 and 60 of the Code.

60. The Learned Counsel for the 2nd Respondent contends that the 'investigation

audit application' was heard on numerous dates and finally orders were reserved

in the said audit application. However, in this application no orders came to be

passed by the Adjudicating Authority as the approval application (CA 195/2018)

itself was heard and reserved for orders on 10.1.2019. Therefore, in the absence

of any direction under the investigation audit application by the Adjudicating

Authority, the investigative audit was not conducted. In this connection, the

Learned Counsel for the 2nd Respondent submits that in the first withdrawal

application the 1st Respondent / 'Resolution Applicant' among other things sought

a relief to direct the 'Resolution Professional' to supply a copy of Special

Investigation Audit to it forthwith and when no audit was conducted, the question

of not providing the report as contended by the 1st Respondent / 'Resolution

Applicant' does not arise.

61. On behalf of the 2nd Respondent, it is brought to the notice of this Tribunal

that the Central Bureau of Investigation had conducted search at the Corporate

Company Appeal (AT) (Insolvency) No. 203 of 2020 37 Office of the 'Corporate Debtor' on 11.2.2020 and that the said search was

conducted on the basis of 'First Information Report' lodged by the State Bank of

India on 10.2.2020 on its behalf and various 'Consortium Banks'. Also, that the

CBI team took numerous documents from the Corporate Office of the 'Corporate

Debtor' and that the list of documents' taken by the Central Bureau of

Investigation was circulated to the members by way of email dated 29.3.2020 prior

to the holding of 16th COC meeting dated 30.3.2020.

62. The Learned Counsel for the 2nd Respondent points out that later on

numerous occasions the CBI team had visited the corporate office of the 'Corporate

Debtor' and remained there for 15 days and requisitioned the customer

agreements relating to financial year 2011-2012 and an intimation of search

conducted by the Central Bureau of Investigation as well as list of documents

provided to CBI was shared with the COC through email dates 17.2.2020 and

19.2.2020 and later on 29.3.2020.

63. The Learned Counsel for the 2nd Respondent points out that the 'Ministry of

Corporate Affairs' through its order No. 32/2018/SFIO/CL-II dated 01.08.2018

had ordered an investigation into the affairs of 'Corporate Debtor' by the Serious

Fraud Investigation Office and that the 'Resolution Professional' visited the SFIO

office on 25.9.2018 for internal discussions and the 1st communication

requisitioning documents / information was received from the said office by the

'Resolution Professional' during October, 2018 and that various documents /

information were duly provided to the said office based on requisition and further

Company Appeal (AT) (Insolvency) No. 203 of 2020 38 is being provided to them as and when required and that the last communication

received from SFIO was around 22.6.2020. Added further, presently the CBI and

SFIO proceedings are pending and continuing.

64. Evaluation

Before the Adjudicating Authority in CA 1252/2019 in (IB) 101(PB) of 2017

the 1st Respondent / Applicant had prayed the undermentioned reliefs: -

(i) Direct that the Ld. 'Resolution Professional' a

copy of the Special Investigation Audit to the

Resolution Applicant forthwith;

(ii) Direct that the Ld. Resolution Professional

supply a copy of the Certificates under Section

43,45,50 and 66 of the Insolvency and

Bankruptcy Code, 2016 to the Resolution

Professional forthwith;

(iii) Withhold approval of the Resolution Plan

sanctioned by the Committee of Creditors of

the Corporate Debtor, as filed before this

Hon'ble Tribunal on 11.04.2018, pending

detailed consideration of the same by the

Resolution Applicant;

(iv) Grant the Resolution Applicant sufficient

time to re-evaluate its proposals contained

Company Appeal (AT) (Insolvency) No. 203 of 2020 39 in the Resolution Plan, and also to suitably

revise/modify and/or withdraw its

Resolution Plan;

(v) Pass any other order(s), and/or any other

consequential reliefs as deemed fit and

proper by this Hon'ble Tribunal in the facts

and circumstances of the case.

65. The Adjudicating Authority on 10.7.2019 had observed that "this is

an application filed by one 'Ebix Singapore Pvt. Ltd.' seeking re-

valuation of the Resolution Plan submitted by it before the Resolution

Professional" and dismissed CA No. 1252(PB)/2019 stating that there was no

ground for considering the prayer sought in the application was made out.

66. Again, the 1st Respondent / 'Resolution Applicant' filed CA No. 1310

of 2019 and sought the following reliefs:-

i. Allow the Resolution Applicant to

withdraw the Resolution Plan dated 19.02.2018

(along with the Addendum/Financial Proposal

dated 21.02.2019) submitted by it, and as

approved by the Committee of Creditors;

ii. Direct the Ld. Resolution

Professional and/or Educomp Solutions

Limited and the Committee of Creditors to

Company Appeal (AT) (Insolvency) No. 203 of 2020 40 refund the Earnest Money Deposit of Rs.

2,00,00,000/- furnished by the Resolution

Applicant in respect of the Resolution Plan;

iii. Withhold approval of the Resolution Plan

sanctioned by the Committee of Creditors of

the Corporate Debtor, as filed before this

Hon'ble Tribunal on 07.03.2018 and recorded

vide order dated 11.04.2018, pending detailed

consideration of the same by the Resolution

Applicant;

iv. Pass any other order(s), and/ or any other

consequential reliefs as deemed fit and proper

by this Hon'ble Tribunal in the facts and

circumstances of the case.

67. The Adjudicating Authority in CA 1310(PB)/2019 on 5.9.2019 had

observed the following: -

"In para 'B(xii)' under the caption 'facts of the

case', the following averments have been made

"xii. That the present Applicant had also filed

an Application dated 05.07.2019 bearing

PB/1A/1252/2019 under Section 60(5) of the

Company Appeal (AT) (Insolvency) No. 203 of 2020 41 Code, seeking revision/revaluation of the

Resolution Plan. However, the same was

dismissed by this Hon'ble Tribunal and during the

course of hearing in the said Application, this

Hon'ble Court put it to the Resolution Applicant to

withdraw the Resolution Plan by way of a

separate Application. The present Application for

withdrawal of the Resolution Plan is being made

in pursuance of the same. Copy of Application

dated 05.07.2019 bearing PB/IA/1252/2019

under Section 60(5) of the Code, seeking

revision/revaluation of the Resolution Plan is

annexed hereto as Annexure 4."

The italic portion of the aforesaid para

shows that the prayer for withdrawal of the

Resolution Plan has been made inter alia on the

suggestion of the Court which is neither reflected

in the order nor is born out from any record. Such

an averments imputing to the Court something

which has never been said is condemnable. The

cause of action cannot be based on any such

things."

Company Appeal (AT) (Insolvency) No. 203 of 2020 42 and accordingly dismissed the application with liberty to the Applicant to file

fresh one on the same cause of action, if so advised.

68. The 1st Respondent / 'Resolution Applicant' filed yet another CA

1816/2019 before the Adjudicating Authority and sought the following reliefs: -

i. Allow the Resolution Applicant to

withdraw the Resolution Plan dated 19.02.2018

(along with the Addendum/Financial Proposal

dated 21.02.2019) submitted by it, and as

approved by the Committee of Creditors;

ii. Direct the Ld. Resolution

Professional and/or Educomp Solutions

Limited and the Committee of Creditors to

refund the Earnest Money Deposit of Rs.

2,00,00,000/- furnished by the Resolution

Applicant in respect of the Resolution Plan;

iii. Withhold approval of the Resolution Plan

sanctioned by the Committee of Creditors of

the Corporate Debtor, as filed before this

Hon'ble Tribunal on 07.03.2018 and recorded

vide order dated 11.04.2018, pending detailed

consideration of the same by the Resolution

Applicant;

Company Appeal (AT) (Insolvency) No. 203 of 2020 43 iv. Pass any other order(s), and/ or any other

consequential reliefs as deemed fit and proper

by this Hon'ble Tribunal in the facts and

circumstances of the case.

69. It is the plea of the 1st Respondent / 'Resolution Applicant' in CA No. 1252

of 2019 that it is to be furnished with full details as to the financial position of

the 'Corporate Debtor' and also information as to various illegal and fraudulent

transactions conducted by it and the failure to furnish the necessary details

amounts to a denial of material information, which is in negation of Section 29

of the 'I&B' Code. Furthermore, the 1st Respondent would have to take on

extreme financial positions on the basis of 'Resolution Plan' and substantial

changes in the financial position of the 'Corporate Debtor' would in law and in

equity deserve reconsideration. Moreover, to protect the interests of

shareholders, the copy of the special investigation audit may be made available

to the 'Resolution Applicant'. That apart, the 'Resolution Professional' prayed

for the supply of certificates u/s 43,45,50 and 66 of the 'I&B' Code to the

'Resolution Professional' forthwith.

70. It comes to be known that no audit was conducted in respect of the (i) relief

prayed for by the 1st Respondent /'Resolution Applicant' in CA 1252/2019 and

as such it is held by this Tribunal that the question of non-supply of the copy of

Special Investigation Audit would not arise on any count.

Company Appeal (AT) (Insolvency) No. 203 of 2020 44

71. In regard to the (ii) relief prayed for by the 1st Respondent /'Resolution

Applicant' in CA 1252/2019 that the 'Resolution Professional' may be directed

to supply with a copy of certificates Under Sections 43,45,50 and 66 of the 'I&B'

Code to the 'Resolution Applicant', it is brought to the notice of this Tribunal on

behalf of the 2nd Respondent/'Resolution Professional' that a short affidavit was

filed by the 'Resolution Professional' dated 8.10.2018 relating to 'transaction

audit' conducted by BDO as per Sections 43,45,50 and 66 of the 'I&B' Code on

6.12.2016 and through the said affidavit, the 'Resolution Professional'

mentioned that on the basis of books of accounts and other relevant material no

transactions in his opinion were found which needed to be avoided or were

fraudulent as per Sections 43,45,50 and 66 of the 'I&B' Code. Indeed, there may

not be any embargo for the 1st Respondent/'Resolution Applicant' to obtain a

copy of the aforesaid short affidavit directly from the Learned Counsel from the

2nd Respondent /'Resolution Professional' and to subjectively satisfy itself in this

regard.

72. However, the Adjudicating Authority while passing the order of dismissing

the application in CA No. 1252(PB)/2019 dated 10.7.2019 had not specifically

dealt with the aspect of supply of copy of certificates under Sections 43,45,50

and 66 of the 'I&B' Code. Likewise, the (iii)(rd) relief withholding of approval of

'Resolution Plan' sanctioned by the 'Committee of Creditors' of 'Corporate Debtor'

was also not expressly adverted to by the Adjudicating Authority at the time of

dismissing the CA No.1252(PB)/2019. To put it precisely, the Adjudicating

Authority while dismissing CA No.1252(PB)/2019 on 10.7.2019 had merely Company Appeal (AT) (Insolvency) No. 203 of 2020 45 mentioned about the ivth relief prayed for by 1st Respondent /'Resolution

Applicant' viz. the revaluation of the 'Resolution Plan' submitted by it before the

'Resolution Professional' but not granted the said relief but merely mentioned

that "no ground for considering the prayer sought in the application is made out"

by passing a speaking order but merely mentioned, no ground for considering

the prayer sought in the application is made out and the said application was

dismissed as such.

73. It is relevant to point out that the relief of withholding of 'approval of

Resolution Plan' made in CA No.1252(PB)/2019 was again claimed by the 1st

Respondent /'Resolution Applicant' in CA No.1310/2019 as iiird relief. The relief

prayed for in CA 1310/2019 by the 1st Respondent/'Resolution Applicant' to

allow him to withdraw the 'Resolution Plan' dated 19.2.2018 etc. was not claimed

in CA 1252 of 2019 similarly, the iind relief in CA 1310 of 2019 claiming refund

of earnest money deposit of Rs. 2/- crores from the 'Resolution Professional'

and/or 'Educomp Solutions Ltd.' furnished by the 'Resolution Applicant' in

respect of 'Resolution Plan' was not claimed in CA 1252 of 2019.

74. It is evident that the Adjudicating Authority while dismissing the CA No.

1310(PB)/2019 on 5.9.2019 with certain observations made against the 1st

Respondent had granted to it, to file fresh one on the same cause of action, if so

advised and resting on the said liberty, the 1st Respondent/Applicant had filed

yet another CA 1816 of 2019 wherein the impugned order was passed by the

Adjudicating Authority on 2.1.2020.

Company Appeal (AT) (Insolvency) No. 203 of 2020 46 Res Judicata

75. In regard to the principle of 'Res Judicata' it is to be pointed out that the

said principle is a prohibition against the Court / Tribunal. An inter-party order

passed by a competent Tribunal binds them even if it is an erroneous one. If an

order is passed in a given proceedings and the same became final, then in Law,

it would be binding at a later stage of the proceeding, in the considered opinion

of this Tribunal. 'Res Judicata' prohibits an 'inquiry' at the very threshold and

bar the trial of a suit or a given proceeding.

76. The Rule of constructive 'Res Judicata' is enshrined in explanation iv of

Section 11 of the Civil Procedure Code. In fact, the doctrine of 'Res Judicata'

applies to all judicial proceedings and equally to all quasi-judicial proceedings

before Tribunals. When any matter might and ought to have been raised as a

ground of defence in an earlier proceeding but that was not made, then in Law

to avoid plurality of litigations and to bring about finality in it, such matter was

deemed to have been constructively in issue and as such is taken as

'determined'.

77. In the decision 'Ram Kirpal' V. 'Rup Kurai(1883)11 I.A. 37 the privy

Council held that an interlocutory judgement in a suit is binding upon the

parties in every proceeding in that suit.

78. Further, a party is to claim all the reliefs as available at the time of filing

of an 'Application'. Any intentional omission bars the 'Second Application'.

Also, that if a party is aware of his / its claim and omitted to sue for it, it will be

Company Appeal (AT) (Insolvency) No. 203 of 2020 47 precluded from suing for it again, even though the said omission is an

involuntary or an accidental one, as opined by this Tribunal.

79. It is to be pertinently pointed out that if a relief is claimed in a suit but is

not expressly granted in the 'Decree', it will be deemed to have been refused, and

the matter in respect of which the relief is claimed will be 'Res Judicata', as per

decision 'Rock Tyres Chandigarh' V. 'Ajit Jain' AIR 1998 P&H at page 202.

80. In regard to the aspect of 'cause of action' it means that all essential fact

constituting the right and its infringement. A second claim petition raising

issues which could have been raised in the first claimed petition and which were

relatable to the cause of action' is barred as per decision of Hon'ble Supreme

Court 'K.V. George, Secretary to Govt.', Trivandrum reported in AIR 1990

SC page 53.

81. In the instant case, the 1st Respondent / 'Resolution Applicant' had

omitted to claim the relief No. (i) and (ii) viz. to permit him to withdraw the

'Resolution Plan' dated 19.2.2018 and the claim of seeking refund of earnest

money deposit of Rs. 2/- crores furnished by it in respect of the 'Resolution Plan'

in CA 1252 of 2019 and as such it is precluded from suing for it (by way of filing

CA 1310/2019) even though such omission may be either an intentional or

accidental or involuntary one.

82. Although the iiird relief of withholding of approval of 'Resolution Plan'

sanctioned by the 'Committee of Creditors' is very same one claimed in CA No.

1252 of 2019 is the very same one as iiird relief in CA 1310/2019 and

Company Appeal (AT) (Insolvency) No. 203 of 2020 48 notwithstanding the fact the same was not dealt with in CA 1252 of 2019 order

dated 10.7.2019, in view of the dismissal of said CA 1252(PB)/2019 by the

Adjudicating Authority and the said order which had attained finality and more

so in the absence of any 'Appeal' being filed against the said order, then the

dismissal order of CA 1252 of 2019 order dated 10.7.2019 binds the 1st

Respondent/'Resolution Applicant' as an 'Inter-se' party.

83. In so far as the plea of the 1st Respondent / 'Resolution Applicant' that it

was constrained to file CA 1310(PB)/2019 based on the suggestion of the

Adjudicating Authority and in the absence of same not being borne out from any

record or neither reflected in the order passed in CA1252/2019 dated 10.7.2019,

it was not open to the 1st Respondent to file CA 1310(PB)/2019 and the

Adjudicating Authority had observed that the 'cause of action' could not be

based on such things and dismissed the CA 1310(PB)/2019 granting liberty to

the 1st Respondent / 'Resolution Applicant' to file fresh one on the same cause

of action, if so advised.

84. Coming to the aspect of the plea of the 1st Respondent / 'Resolution

Applicant' that it filed CA 1816/2019 before the Adjudicating Authority only

based on the liberty being granted to it to file the same on same 'cause of action',

if so advised, as per order dated 10.7.2019 in CA 1310(PB)/2019, this Tribunal

pertinently points out that the Adjudicating Authority in the particular

circumstances of the present case has no power to grant /reserve liberty to

bring a fresh application and hence, the subsequent application filed by the 1st

Company Appeal (AT) (Insolvency) No. 203 of 2020 49 Respondent /'Resolution Applicant is barred by the principle of 'Res Judicata'

notwithstanding the liberty to file fresh one.

85. At this juncture, it is worth to recall and recollect that decision in 'Watson'

V. 'Collector of Rajshahye' reported in (1869)12 MIA 160, 12 WR 43 PC

wherein the former suit was dismissed for the plaintiff's failure to produce

evidence but a direction was given that a plaintiff could institute a fresh

proceeding as if no suit was brought but it was held that the subsequent suit

was barred by 'Res Judicata' for the reservation was of no effect.

86. In CA 1816/2019 the 1st Respondent / 'Resolution Applicant' had stated

that the 'Corporate Insolvency Resolution Process' against the 'Corporate Debtor'

had far exceeded the statutory time line by more than 17 months and that since

the financial considerations underlying the 'Resolution Plan' were no longer

justifiable to it and that apart it is extremely concerned with the investigation

that was conducted by the SFIO into the affairs of the Company, the 'Resolution

Plan' ought to be allowed to be withdrawn by it.

87. Although the Adjudicating Authority in the impugned order in CA

1816(PB)2018 in Company Petition No. (IB)-101(PB)/2017 dated 2.1.2020 at

paragraph 11 had observed that 'while dismissing CA No. 1252(PB)/2019 the

prayer for withdrawal of 'Resolution Plan' was neither considered nor was ever

dealt with. The issue of withdrawal of 'Resolution Plan' by the Applicant has

never been considered consciously on merit and / or adjudicated upon in CA No.

1252(PB)/2019 and proceeded to mention that 'doctrine of constructing 'Res

Company Appeal (AT) (Insolvency) No. 203 of 2020 50 Judicata' does not apply to the issues/points, or any 'lis' between the parties

that was not decided previously and despite been pleaded was not considered by

court/Tribunal and expressly dealt with in the order so passed etc., this Tribunal

is of the considered view that these observations are not legally tenable because

of the latent and patent fact that the grounds raised by the 1st Respondent /

'Successful Resolution Applicant' in CA 1816(PB)2018 (withdrawal application)

were projected earlier and rejected in CA No. 1252(PB)/2019 through an order

dated 10.7.2019. Furthermore, the plea of the 1st Respondent / 'Successful

Resolution Applicant' and the finding of the Adjudicating Authority that the

prayer for withdrawal was not considered while disposing of CA No.

1252(PB)/2019 is quite in tune with the very principle of 'Res Judicata' which

means that the reliefs should be deemed to have been denied when what were

claimed being 'not granted' which unerringly points out that they were denied or

refused by the Adjudicating Authority. Even an order / decision of a competent

Court/Tribunal on a point of Law operates as 'Res Judicata'. The principle of

'Res Judicata' is that cause of action for second proceeding merged in first

proceeding does not survive any more. In reality, 'Res Judicata' precludes a

party from averring the same thing in 'successive litigations'. As such, the

contra view taken by the Adjudicating Authority that the doctrine of constructive

'Res Judicata' does not apply to the issues/points or any 'lis' between the parties

that was not decided previously etc. is negatived by this Tribunal. Per contra,

unhesitatingly this Tribunal holds that the withdrawal application CA

Company Appeal (AT) (Insolvency) No. 203 of 2020 51 1816(PB)2019 is barred by the principles of 'Res Judicata' / Constructive 'Res

Judicata'.

Withdrawal of Resolution Plan

88. In regard to the plea of 'withdrawal of Resolution Plan' made in CA

1816/2019 before the Adjudicating Authority, the 1st Respondent / 'Resolution

Applicant' had averred that the 'Insolvency Resolution Process' in regard to the

Company commenced on the date of the admission of petition u/s 9 of the Code

on 30.5.2017 and the statutory period of limitation for completion of proceedings

under the 'I&B' Code viz. 180 days lapsed on 30.11.2017 and further 90 days

period was extended as per Section 12 of the Code, which came to an end of

30.01.2017. As a matter of fact, the statutory permitted period of 270 days for

completion of 'Corporate Insolvency Resolution Process' had expired and more

than 24 months had passed since that date.

89. According to the 1st Respondent / 'Resolution Applicant' the

financial/commercial considerations underlying the 'Resolution Plan' are no

longer viable to it and that the financial position and profile of the 'Corporate

Debtor' may have altered and / or deteriorated significantly and further that the

Special Investigating Audit of the Company between 2014 and 30.1.2018 was

subsequently never conducted, the 'Resolution Plan' ought to be permitted to be

withdrawn by it and that the Adjudicating Authority based on the facts of the

case had allowed the prayer for withdrawal of 'Resolution Plan' with cost etc. and

the said impugned order in CA 1816(PB) of 2019 is valid and justifiable one.

Company Appeal (AT) (Insolvency) No. 203 of 2020 52

90. In response, it is the stand of the Appellant that the reliance placed by the

1st Respondent / 'Resolution Applicant' in respect of clause 1.8.3 of 'RFRP' read

along with Clause 7 of the 'Approved Resolution Plan' to claim the validity of the

'Approved Resolution Plan' was only six months is an incorrect one because of

the reason the said six months period in clause 1.8.3 of 'RFRP' is the minimum

validity period. Further, Clause 7 of the 'Approved Resolution Plan' read in the

context of 'RFRP' is only a reference to the 'Resolution Plan' being valid for six

months for acceptance of the 'Committee of Creditors' and in short post

'Committee of Creditors' approval the 'Resolution Plan' is a statutory binding

contract only conditional to the approval of Adjudicating Authority which can be

refused only on account of non-compliance of the conditions mentioned in

Section 30(2) of the Code which is conspicuously absent in the present case.

Therefore, it is submitted on behalf of the Appellant that the 1st Respondent /

'Resolution Applicant' is bound by the 'Approved Resolution Plan' duly accepted

by the 'Committee of Creditors'. On behalf of the Appellant, a reliance is placed

upon the judgement of this Tribunal in Apollo Jyoti LIC and Ors. v. Jyoti

Structures Ltd. Company Appeal (AT)(Ins.) No. 461/2018 dated 19.03.2019

wherein it is observed that the 'Committee of Creditor' is empowered to change

its decision on rejection of 'Resolution Plan' but within 270 days.

91. The aim of 'Resolution' is for maximization of the value of Assets of the

'Corporate Debtor' and thereby for all creditors. The 'I&B' code defines

'Resolution Plan' as a plan for insolvency resolution of the 'Corporate Debtor' as

a going concern. It is to be remembered that no one is either buying or selling

Company Appeal (AT) (Insolvency) No. 203 of 2020 53 the 'Corporate Debtor' through 'Resolution Plan'. A 'Resolution Applicant' may

furnish a 'Resolution Plan' to the 'Resolution Professional' who is then to examine

the said plan to see that it conforms to the requirements of Section 30(2) of the

Code. If the plan satisfies the such requirements, the plan is to be placed before

the 'Committee of Creditors' for its approval u/s 30(3) and can be approved by

the 'Committee of Creditors' by a court of not less than 66% under Sub-Section

(4).

92. After the approval of the 'Resolution Plan' it is to be submitted to the

'Adjudicating Authority' under Section 31 of the Code. The Adjudicating

Authority at this juncture, is to apply its judicial mind to the 'Resolution Plan'

so presented and after being subjectively satisfied that the plan meets or does

not meet the requirements mentioned in Section 34 of the Code may either

approve or reject such plan.

93. Be it noted, that subsequent to the approval of 'Resolution Plan' by an

Adjudicating Authority an application may be filed before the Adjudicating

Authority by a person in-charge of the management or control of the Business

and operations of the 'Corporate Debtor' for an order seeking the assistance of

the local district administration in implementing the terms of a 'Resolution Plan'.

94. Although the 1st Respondent/'Resolution Applicant' had taken a plea in

that it is not bound by the 'Resolution Plan' submitted by it and is at liberty to

withdraw from the 'RFRP' after the completion of six months from the date of

submission of the 'Resolution Plan', this court holds that the Adjudicating

Authority after approval of the 'Resolution Plan' by the 'Committee of Creditors'

Company Appeal (AT) (Insolvency) No. 203 of 2020 54 had no jurisdiction to entertain or to permit the withdrawal application filed by

the 1st Respondent/'Resolution Applicant'.

95. In the instant case, notwithstanding the fact only upon the approval of the

'Adjudicating Authority' the 'Resolution Plan' of the 'Resolution Applicant' would

be binding on all the parties and further that the application for withdrawal was

filed by the 1st Respondent/'Resolution Applicant' was filed earlier to the stage

of 'Approval' by the 'Adjudicating Authority' yet this Court comes to an cocksure

conclusion that the 'Adjudicating Authority', in law cannot enter into the arena

of the majority decision of the 'Committee of Creditors' other than the grounds

mentioned in Section 32(a to e) of the 'I&B' Code. Moreover, after due

deliberations, when the 1st Respondent/'Resolution Applicant' had accepted the

conditions of the 'Resolution Plan' especially keeping in mind the ingredients of

Section 25(2)(h) of the 'Code' to the effect that 'no change or supplementary

information to the 'Resolution Plan' shall be accepted after the submission date

of 'Resolution Plan' then it is not open to the 1st Respondent/'Resolution

Applicant' to take a 'topsy turvy' stance and is not to be allowed to withdraw

the approved 'Resolution Plan'.

96. Coming to the aspect of there being a delay in completion of 'Corporate

Insolvency Resolution Process' of the 'Corporate Debtor' i.e. after lapse of more

than 18 months from the date of submission of the 'Resolution Plan' (i.e.

19.2.2018) and 27 months from the 'Corporate Insolvency Resolution Process'

commencement date the application for its approval was still pending before the

Adjudicating Authority on 10.09.2019, when the application for withdrawal of

Company Appeal (AT) (Insolvency) No. 203 of 2020 55 plan was filed culminating in the impugned order, it is to be relevantly pointed

out by this Tribunal that when the orders on the approval application were

reserved by the Adjudicating Authority then such delay cannot be taken

advantage of by a litigant because of the fact that 'Actus curiae neminem

gravabit' i.e. the act of Court shall harm no person which is embedded in

jurisprudence( vide Jang Singh V. Brij Lal, 1964) 2 SCR page 146 at special

page 149. 97. The 2nd Respondent had clearly pointed out before this

Tribunal that no special investigation audit was conducted and, therefore, the

1st Respondent/'Resolution Applicant' cannot have a grievance that the

'Resolution Professional' had not supplied it a copy of the said Audit Report.

Further, the CBI and SFIO proceedings initiated against the 'Corporate Debtor'

are pending and hence, and in any event Section 32A of the 'I&B' Code grants

immunity to the 1st Respondent/'Resolution Applicant' in respect of the offences

committed by the 'Corporate Debtor' before the start of 'CIRP'. Also, that it

specifies that the assets of the 'Corporate Debtor' as represented will be available

in the right manner as at the time of furnishing of 'Resolution Plan'. When that

be the fact situation, the 1st Respondent/'Resolution Applicant' taking an

umbrage of pending 'SFIO investigation' of the affairs of 'Corporate Debtor' or the

CBI investigation to file CA 1816(PB) of 2019 (withdrawal application) is

unworthy of acceptance.

98. It must be borne in mind that the 1st Respondent/'Resolution Applicant'

even after the expiry of six months had proceeded with the approval of the

'Resolution Plan' and the fact of the matter is that the 'Resolution Plan' is to be

Company Appeal (AT) (Insolvency) No. 203 of 2020 56 valid for six months, for acceptance of 'Committee of Creditors', is certainly not

a favourable circumstance in favour of the 1st Respondent / 'Resolution

Applicant'. During the period from August, 2018 till January 2019 when the

orders were reserved by the 'Adjudicating Authority' on the approval application,

the 1st Respondent/'Resolution Applicant' took part and, therefore, by any

stretch of imagination, it cannot be said that the validity of the 'approved plan'

was only six months period and such plea is not well founded.

Result

99. Be that as it may, on a careful consideration of respective contentions,

taking note of qualitative and quantitative upshot and keeping in mind the facts

and circumstance of the instant case which float on the surface, this Tribunal

comes to an irresistible conclusion that the views arrived at by the Adjudicating

Authority in CA No.1816(PB)/2019 in C.P.(IB)No. 101 (PB) 2017 to the effect

(i)that doctrine of 'Res Judicata' does not apply to the present case (ii) in granting

the relief of withdrawal of 'Resolution Plan' with costs and resultantly allowing

the aforesaid CA No. 1816(PB)/2019 in C.P.(IB)No. 101 (PB) 2017 partly

specifying the terms therein with costs of Rs. 1 lakh to be paid by the 1st

Respondent/'Resolution Applicant' are clearly unsustainable in law and

accordingly, they are set aside in furtherance of substantial cause of justice.

Resultantly, the present Appeal succeeds.

In fine, the present Appeal is allowed with no costs. The impugned order

dated 02.01.2020 in CA No. 1816(PB)/2019 in C.P.(IB)No. 101 (PB) 2017 is set

aside for the reasons ascribed in this Appeal by this Tribunal. The CA No.

Company Appeal (AT) (Insolvency) No. 203 of 2020 57 1816(PB)/2019 is dismissed. I.A. No. 531/2020(seeking exemption to file clear

copy etc.) is closed.

[Justice Venugopal. M] Member (Judicial)

[Kanthi Narahari] Member (Technical)

NEW DELHI

29th July, 2020

ss

Company Appeal (AT) (Insolvency) No. 203 of 2020 58