Darshak Enterprise Pvt. Ltd vs Chhaparia Industries Pvt. Ltd. & Ors

Darshak Enterprise Pvt. Ltd. ...Appellant Versus Chhaparia Industries Pvt. Ltd. & Ors. ...Respondents

Company Appeal (AT) (Insolvency) No. 328 of 2017

IN THE MATTER OF:

Symphony Ltd. ...Appellant Versus Chhaparia Industries Pvt. Ltd. & Ors. ...Respondents

Present:

For Appellant(s) : Mr. Mayank Mishra and Mr. Ritunjay Gupta, Advocates

For 1st Respondent: Ms. Jyoti Singh, Advocate

ORDER

02.05.2018 Both the appeals have been preferred by the appellant(s)

('Operational Creditor') against the order dated 29th September, 2017 passed by

the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench in

M.A. No. 349/2017 in C.P. No. 23/I&BP/NCLT/MB/MAH/2017 whereby and

whereunder the Adjudicating Authority approved the 'Resolution Plan' with the

following observations:

"8. On perusal of this Resolution Plan, this Bench being satisfied 2

with the valuation ascertained by the Registered Valuer

appointed by the Insolvency Resolution professional in respect

of the properties of the Corporate Debtor for all valuations are

contemporaneous with the sale transactions happening in the

vicinity where the Corporate Debtor is located, whereby this

Bench hereby approved the Resolution Plan filed by the

Insolvency Resolution professional.

9. Accordingly, MA No. 349/2017 is hereby allowed by vacating

the moratorium already granted at the time of the admission

of the Company Petition 23/2017 and extension given on

23.8.2017.

10. In view of the approval given to the Resolution Plan filed by the

Insolvency Resolution Professional, this Bench hereby

discharges the Insolvency Resolution Professional from the

duties of the Insolvency Resolution process by submitting all

the records maintained by the Insolvency Resolution

professional before Insolvency and Bankruptcy Board of India,

as prescribed under law."

2. Learned counsel appearing on behalf of the appellants submitted that the

'Resolution Plan' has not taken care of the total outstanding dues of the

appellants. Out of the total dues 5% of the principal amount has been allowed

in favour of the appellant -Darshak Enterprise Private Limited. In the case of

Symphony Ltd., 5% of principal amount has been allowed with certain rider. It

Company Appeal (AT) (Insolvency) No. 327 & 328 of 2017 3

is submitted that the appellant - Symphony Ltd. has already filed a winding up

proceedings before the High Court of Mumbai, which is pending, in the meantime,

the proceeding under Section 10 preferred by the 'Corporate Applicant' has been

admitted and the impugned order was passed.

3. Learned counsel appearing on behalf of the 1st respondent - 'Corporate

Debtor' submitted that the appellants had failed to file their respective claim

within the prescribed period. In spite of the same, their claims have been taken

care in the 'Resolution Plan' based on the books of accounts of the 'Corporate

Debtor.'

4. Insofar as the appellant - Darshak Enterprise Private Limited is concerned

the following plea has been taken by the respondent:

"I say that the Resolution Plan, which was approved by the

'Hon'ble National Company Law Tribunal (Adjudicating

Authority) vide an order dated September 29, 2017, inter

alia, provides for the settlement of the dues of the operational

creditors of Respondent No. 1. I further state that despite the

non-receipt of the Appellant's claim before the approval of the

resolution plan by the committee of creditors (CoC) of the

Corporate Debtor, i.e. the maximum time stipulated under

regulation 12 of the Insolvency and Bankruptcy Board of

India (Insolvency Resolution Process for Corporate Persons)

Regulations, 2016 (CIRP Regulations), the dues of the

Appellant were taken into account by the Respondent

Company Appeal (AT) (Insolvency) No. 327 & 328 of 2017 4

No.2/the Resolution professional from the books of accounts

of the Corporate Debtor. I state that as per the books of

accounts of the Corporate Debtor, the outstanding dues of the

Appellant aggregated to an amount of Rs.26,57,271/-(Rupees

Twenty Six Lakh Fifty Seven Thousand Two Hundred and

Seventy One only) i.e. the principal outstanding. As the dues

are Non-current Dues, as per the terms of the Resolution Plan,

the Appellant was entitled to be settled at 5% of its total

outstanding within thirty days of the approval of the

Resolution Plan. Accordingly, admittedly a cheque dated

October 28, 2017 for Rs. 1,32,864/- (5% of the Appellant's

total outstanding dues against the Respondent No. 1) was

issued in favour of the Appellant, which was encashed by the

Appellant. Annexed hereto and marked as Exhibit 'A' are

the relevant extracts from the Resolution Plan."

5. As regard the Symphony Limited, the respondent has taken the following

stand:

"4. I further state that despite the non-receipt of the Appellant's

claim before the approval of the resolution plan by the

committee of creditors (CoC) of the Corporate Debtor, i.e. the

maximum time stipulated under regulation 12 of the

Insolvency and Bankruptcy Board of India (Insolvency

Resolution Process for Corporate Persons) Regulations, 2016

Company Appeal (AT) (Insolvency) No. 327 & 328 of 2017 5

(CIRP Regulations), the dues of the Appellant were taken into

account by the Respondent No. 2/the Resolution Professional

from the books of accounts of the Corporate Debtor. I state that

as per the books of accounts of the Corporate Debtor, the

contingent liability of the Respondent No. 1 towards the

Appellant is Rs.67,76,000/-.

5. I stay that the Resolution Plan inter alia provides for

"Contingent Operational Dues/Operational Dues which are the

subject matter of litigation". The Resolution Plan takes note

that the Respondent No. 1 has disputed certain claims made

against it, in respect of which legal proceedings have been

initiated against the Respondent No. 1. It further notes that

the Respondent No. 1 may incur liability subject to the outcome

of the legal proceedings. It ought to be noted that several

proceedings are pending adjudication between the Appellant

and the Respondent No. 1, and the Respondent No. 1 has

contested all the claims made by the Appellant before every

forum. On account of the pending litigation between the

parties, the Appellant's claims fall under the category of

"contingent claims" as per the Resolution Plan where monies

might become payable to the Appellant upon adjudication of

the disputes between the Appellant and the Respondent No. 1.

Company Appeal (AT) (Insolvency) No. 327 & 328 of 2017 6

Hereto annexed and marked as Exhibit 'A' are relevant

extract from the Resolution Plan.

6. As is evident from all that is stated above, the Appellant's

purported claim, on account of the pending litigation between

the parties, falls under the category of "Operational dues

which are subject matter of litigation". Accordingly, any

payment purportedly due to the Appellant is subject to the final

adjudication of the claims. I say that should the contingency

arise where it is finally adjudicated/held that monies are due

from the Respondent No. 1 to the Appellant, then the same

shall be paid in accordance with the terms of the Resolution

Plan."

6. In these cases as we find that in spite of receipt of their claim much beyond

the period prescribed under the I & B Code, the 'Resolution Plan' has taken care

of the claim of the appellants, we are not inclined to interfere with the order

passed by the Adjudicating Authority. In a particular case, what should be the

percentage of claim amount payable to one or other 'Financial Creditor' or

'Operational Creditor or 'Secured Creditor' or 'Unsecured Creditor' can be decided

by the Committee of Creditors based on facts and circumstances of each case. In

absence of any discrimination or perverse decision, it is not open to the

Adjudicating Authority or this Appellate Tribunal to modify the plan.

7. We find no merit in the appeal. They are dismissed Insofar the winding

up proceedings or other litigations pending before any Court of law, we are not

Company Appeal (AT) (Insolvency) No. 327 & 328 of 2017 7

expressing any opinion as the Court of competent jurisdiction will decide the

same. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial) /ns/uk

Company Appeal (AT) (Insolvency) No. 327 & 328 of 2017