Gloster Limited vs Fort Gloster Industries Ltd

IN THE MATTER OF: Gloster Ltd. ...Appellant

Versus

The Resolution Professional, Fort Gloster Industries Ltd. & Anr. ...Respondents

Present: For Appellant : Mr. Shaunak Mitra, Mr. P.K. Jhunjhunwala, Mr. Anil Agarwalla, Ms. Neha Sharma, Advocates For Respondents : Mr. Anand Varma & Mr. Ayush Gupta, for R-1. Mr. Dinkar Singh, Mr. Gagan Garg, Mr. Rohit Singh, for R-3/CoC. Mr. Kunal Chatterji, Mr. Rohit Bansal, Mrs. Maitreyee Banerjee, Ms. Kshitij Singh, Advocates for intervenor

ORDER

Per: Justice Rakesh Kumar Jain: (Oral)

10.04.2023: The Resolution Professional filed an application under

Section 30(6) of the Insolvency and Bankruptcy Code, 2016 (in short 'Code')

before the Adjudicating Authority (National Company Law Tribunal, Kolkata

Bench) for seeking approval of the Resolution Plan submitted by Gloster Ltd.

(Appellant herein) which was duly approved by the CoC by a vote share of

73.21% of its members.

2. The precise grievance of the Appellant is in respect of part of order

contained in para 96(b) which read that 'The outstanding statutory dues,

stamp duty payable, etc will be governed by the provisions of the respective

Act'.

3. Counsel for the Appellant has submitted that the only statutory claim

was included in the information memorandum by the RP of an amount of Rs.

2.22 Crore filed by Ulluberia Municipality and the Appellant made a provision

of Rs. 1.60 Crore in the plan. The RP did not receive any other claim from any

statutory authorities much less in respect of the outstanding statutory dues,

stamp duty payable, etc. The Appellant is quite apprehensive that there may

not be applications for outstanding statutory dues, stamp duty payable etc,

in terms of the provision of the respective Act which cannot be allowed as the

IBC is the complete Code in itself has to prevail.

4. It is further submitted that even otherwise if no claim is made by the

statutory authorities and the plan has been approved, the subsequent claims

are frozen and cannot be entertained. In this regard, he has relied upon two

decisions of the Hon'ble Supreme Court rendered in the case of 'Ghanashyam

Mishra and Sons Pvt. Ltd. through the Authorised Signatory Vs. Edelweiss

Asset Reconstruction Company Limited through the Director and Ors., (2021)

9 SCC 657' and Ruchi Soya Industries Limited & Ors. vs. Union of India &

Ors., (2022) 6 SCC 343'.

5. Anand Verma, has put in appearance on behalf of Respondent No. 1

(RP) and submitted that since the Resolution Plan has been approved,

therefore, he is no more there in this case but to assist the court, he has

submitted that only one claim was received by him submitted by Ulluberia

Municipality which has been included in the information memorandum and

about which provision has been made by the Appellant/SRA.

6. We have heard Counsel for the parties and after examining the record

are of the considered opinion that observation made in (b) of the orders passed in para 96 of the impugned judgment deserves to be set aside because of the

reasons that once no claim is made by any statutory authorities under the

Code, it cannot be allowed to be made by the said statutory authority under

the respective Acts in view of decision of the Hon'ble Supreme Court referred

to above. The Hon'ble Supreme Court in the case of 'Ghanashyam Mishra and

Sons Pvt. Ltd. through the Authorised Signatory (Supra) has held as under:-

"102.1. That once a resolution plan is duly approved by the Adjudicating Authority under sub section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan;

102.2. 2019 amendment to Section 31 of the I&B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which I&B Code has come into effect;

103.3. Consequently, all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval under Section 31 could be continued.

7. The Hon'ble Supreme Court in the case of Ruchi Soya Industries

Limited & Ors. (Supra) has held as under:-

"6. The short point that is involved is as to whether the claim of the present respondent which was admittedly not lodged before the Resolution Professional after public notices were issued under Sections 13 and 15 of the IBC could be considered at this stage.

10. We find that the present appeals are squarely covered by the law laid down by this Court in the case of Ghanashyam Mishra (supra). It will be relevant to refer to Paragraph 102 of the said judgment which reads as under: "102. In the result, we answer the questions framed by us as under: 102.1. That once a resolution plan is duly approved by the adjudicating authority under subsection (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the adjudicating authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan. 102.2. The 2019 Amendment to Section 31 of the I&B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which the I&B Code has come into effect. 102.3. Consequently, all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the adjudicating authority grants its approval under Section 31 could be continued."

8. Since, the issue is no more res-integra, therefore, we are of the

considered opinion that the observation made by the Adjudicating Authority

in para 96 (b) which has been challenged in the present appeal deserves to be

set aside. The appeal is thus allowed. The observation 'the outstanding

statutory dues, stamp duty payable, etc will be governed by the provisions of

the respective Act' is hereby set aside.

Any other applications which are pending in this appeal are also closed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical) SC/RR