Mrs. Kusum Rani & Anr vs Mahesh Bansal Resolution Professional ...

Company Appeal (AT) (Insolvency) No. 485 of 2024

IN THE MATTER OF: Kusum Rani & Anr. ...Appellant Versus Mahesh Bansal, RP for Shri Ambica International Food Company Pvt Ltd & Ors. ...Respondents

Present: For Appellant : Mr. Vinod Chaurasia, Advocate.

For Respondents : Mr. Abhishek Anand, Mr. Karan Kohli and Ms. Palak Kalra, Advocates for RP.

Mr. Ankur Mittal and Ms. Preety Choudhary, Advocates for CoC/R-3.

CA Mahesh Bansal.

ORDER

Per: Justice Rakesh Kumar Jain:

03.10.2024 : This appeal is filed under Section 61 of the

Insolvency and Bankruptcy Code, 2016 (in short 'Code') to

challenge the order dated 30.10.2023 passed by the National

Company Law Tribunal, New Delhi (in short 'Tribunal') in I.A. No.

1699 of 2023 filed in CP (IB) No. 1342 (ND)/2018 by which the

resolution plan submitted by the Resolution Applicant (R2) has

been approved. The grievance of the Appellants is that the

Reply/Objection filed to the application bearing I.A No. 1699 of 2

2023 has not been considered at the time of the approval of the

resolution plan while allowing the application bearing I.A. No. 1699

of 2021.

2. The brief facts of this case are that a petition under Section

7 of the Code was filed against the Corporate Debtor bearing CP

(IB) No. 1342/ND/2018 which was admitted on 16.10.2019 and

IRP was appointed.

3. In the first meeting of the CoC held on 20.11.2019 the IRP

was confirmed as RP of the CD.

4. In the 13th meeting of the CoC held on 22.12.2020, the

Respondent No. 1 apprised the members of the CoC that the PRAs,

namely, Ms. Meenakshi and Mr. Kushal Goyal, in their resolution

plan, has proposed a total sum of Rs. 24 Cr. out of which a sum of

Rs. 17 Cr has been proposed towards all the assets of the CD and

the remaining sum of Rs. 7 Cr. towards six critical parcels of land

registered in the name of promoters/guarantors of the CD which

were identified by them and are also mortgaged with banks. The

Respondent No. 1 also apprised the members of the CoC that M/s

Shiv Shankar Rice Mills, in their resolution plan, has proposed a

total sum of Rs. 15.50 Cr. out of which a sum of Rs. 12 Cr. has

been proposed towards all the assets of the CD and the remaining 3

sum of Rs. 3.50 Cr. towards six critical parcels of land registered

in the name of promoter/directors/guarantors of CD. Upon

discussions and deliberations, it was decided that an affidavit from

promoters/directors/guarantors of the CD is required stating

therein about their no objection to transfer the land in favour of

the SRA and Affidavit from the respective banks which are holding

mortgage rights over such critical parcels of land stating that they

shall cease to have their charge over such assets before the

resolution plans are put for voting.

5. The resolution plan submitted by PRAs were put for e-voting

for approval by the members of the CoC in the 14th meeting held

on 25.01.2021 but two of the members of the CoC deferred the

agenda for voting on the resolution plan submitted by the PRAs

since it contained an issue related to guarantors of the CD.

6. In the 15th meeting of the CoC held on 25.02.2021, the

Respondent No. 1 apprised the members of the CoC that the

resolution applicants have stated that the six parcels of land in the

individual names of guarantors/promoters/directors are critical

for their resolution plan to be placed before the members of the

CoC because said lands surround the properties of the CD and

without these six properties being a part of the resolution plan, the 4

resolution applicant would be unable to enter/use the property of

the CD. Six parcels of the land are in the name of Mr. Ishwar

Chand Goel, Mr. Subhash Chand Goel, Mrs. Darshna Devi and Mr.

Parveen Goel being the guarantors/promoters/directors of the CD.

The Respondent No. 2 apprised the members of the CoC that Mr.

Ishwar Chand Goel, Mr. Subhash Chand Goel, Mrs. Darshana Devi

and Mr. Parveen Goel have already submitted their affidavits

providing their NOC to transfer the individual land in the name of

the SRA if the same is approved by the CoC. However, since Ms.

Darshana Devi had expired on 16.02.2021, the members of the

CoC resolved that an affidavit may be obtained from the legal heirs

of Mrs. Darshana Devi.

7. In the 16th meeting of the CoC held on 19.03.2021,

Respondent No. 1 brought to the notice of the CoC that in terms of

the discussions held in the 13th and 14th CoC meeting, Respondent

No. 1 is in receipt of the affidavits relinquishing charge from the

lenders having mortgage rights over the critical assets identified by

the RAs and affidavits from the guarantors/promoters/directors

received from the legal heirs of Mrs. Darshana Devi (Appellants).

The members of the CoC evaluated the resolution plans and

requested Respondent No.1 to place the said plans for voting 5

simultaneously in terms of Regulation 39(3) of the IBBI (CIRP

Regulations), 2016 (in short 'Regulations).

8. The CoC in its commercial wisdom approved the resolution

plan submitted by Ms. Meenakshi & Mr. Kushal Goyal with 100%

voting share, therefore, the resolution plan submitted by M/s Shiv

Shankar Rice Mills was unanimously rejected.

9. Apropos, Respondent No. 1 submitted the resolution plan

approved by the CoC to the Adjudicating Authority for approval in

terms of Section 31(1) of the Code by filing an application bearing

IA No. 1699 of 2021 in which the following reliefs were prayed for

which read as under:-

"i. Allow the present application:

ii. Approve and accept the Resolution Plan submitted by Ms. Meenakshi & Mr. Kushal Goyal as approved by the Committee of Creditors with 100% voting share in its 16th CoC meeting as submitted in respect of the Corporate Debtor i.e. Shri Ambica International Food Company Private Limited;

iii. Declare that upon approval of the Resolution Plan by this Hon'ble Adjudicating Authority, the provisions of the Resolution Plan shall be binding on the Company, its creditors, guarantors, members, employees and other stakeholders in accordance with Section 31 of the Code, 6

and shall be given effect to and implemented pursuant to the order of this Hon'ble Adjudicating Authority;

iv. Approve the appointment of the monitoring agency as approved by the Committee of Creditors;

v. Approve and grant reliefs and directions sought under the Resolution Plan by the Resolution Applicants.

vi. Grant Immunity to the Resolution Applicants in terms of Section 32A of the Insolvency and Bankruptcy Code,2016;

vii. Allow the transfer of critical parcels of land in the name of promoters/ directors/ guarantors of the Corporate Debtor to the successful resolution applicant and release of charge of the financial creditors on the critical parcels of land; and

viii. Pass such other or further order/ order(s) as may be deemed fir and proper in the facts and circumstances of the instant case."

10. The Appellants filed their objections to the application

bearing I.A No. 1699 of 2021 and the Respondent No. 1 filed the

rejoinder too.

11. The application bearing I.A No. 1699 of 2021 was listed for

hearing before the Tribunal on 04.09.2023 when the Counsel for

the Appellants appeared and expressly withdrew the objections so

filed by the Appellants. The said order is reproduced as under:- 7 "IA No.1699/ND/2021

This is an application filed on behalf of the Resolution Professional for Shri Ambica International Food Company Private Limited (A company undergoing CIRP) filed under Section 30(6) of the Insolvency & Bankruptcy Code,2016 read with Regulation 39 of the Insolvency & Bankruptcy Board of India （Insolvency Resolution Process for Corporate Persons) Regulations, 2016 seeking approval of Resolution Plan, as the plan has already been approved by CoC in the 16th CoC Meeting held on 19.3.2021. Learned Counsel for the Resolution Professional has presented the salient features of the Plan as well as the Form 'H' as filed before this Tribunal. The affidavits on behalf of the Resolution Applicants in terms of Section 29A is also on record. Mr. Shaurya Shyam, Learned Counsel has appeared on behalf of the suspended Board of Directors and submitted that though they have filed certain objections against the approval of the Resolution Plan, he is under instructions to withdraw the same The said statement is recorded. Learned Counsel for the Resolution Applicant is also present. Order in this application i.e. IA No. 1699/ND/2021 is reserved. Main matter along with remaining IAs be posted to 25.09.2023."

12. The order dated 04.09.2023 was neither challenged in appeal

by the Appellants nor any application was filed for recall before the

Tribunal, inter alia, on the ground that the Counsel who had 8

suffered the statement for withdrawal of their objection was not so

instructed despite the fact that the main application bearing I.A

No. 1699 of 2021 was reserved for orders on 04.09.2023 and was

allowed or order was pronounced on 30.10.2023 almost after two

months. The Tribunal while allowing the application bearing I.A

No. 1699 of 2021 has made the following observations:-

"4. From the records, it is observed that this AA vide order dated 12.07.2021 had directed the applicant to serve notice of the present application to the suspended directors. The Suspended directors i.e. Respondent No. 2 to 4 and Respondent No. 5 to 6 (guarantor of the CD) had raised certain objections to the approval of the resolution plan.

5. During the hearing dated 04.09.2023, while hearing the present application seeing approval of the resolution plan, it was recorded that Mr. Shaurya Shaym, Learned Counsel has appeared on behalf of the suspended board of directors and submitted that though they have filed certain objections against the approval of the resolution plan, he is under instructions to withdraw the same. Accordingly, the objections raised by the Respondent No. 2 to 6 against the approval of the resolution plan stand withdrawn"

9 13. The appellants who are the legal heirs of Mrs. Darshana Devi,

one of the guarantors, who had interest in the said 6 parcels of

land, have filed this appeal with a grievance which is captured as

under:-

"That the Appellants herein filed their reply to the I.A. 1699 of 2021 bringing on record their objections against the Approval of the Resolution Plan filed by the Respondent No. 2 herein on 12.11.2021. It is pertinent to note that the Appellants in their reply/ objections to the I.A. 1699 of 2021 had submitted that only one bank out of the three lender banks of the Corporate Debtor i.e. the Central bank of India vide its Sanction Letter dated 27.07.2021 has approved the OTS Proposal dated 08.12.2020 submitted by the Guarantor, It is further submitted that the OTS Proposal dated 08.12.2020 submitted by the Guarantors of the Corporate Debtor to Canara Bank and the State Bank of India is still pending approval from the higher authorities of the respective banks in terms of the update provided by the representatives of the banks. the Appellants have highlighted that their objection that until the OTS is received from the State Bank of India and the Canara Bank, the Appellants prayed that the Resolution Plan may not be Approved by the Hon'ble Tribunal. Copy of the Objections/ Reply along with its annexures filed by Appellants to the IA no. 1699/ND/2021 filed by the Appellants are annexed and marked as Annexure- A3(Colly).

That it is relevant to mention that during the course of hearing the I.A. 1699 of 2021 on 04.09.2023, Ld. Counsel Mr. Shaurya Shyam, appeared on behalf of the suspended Board of Directors before the Hon'ble Tribunal and submitted that though they have filed 10

certain objections against the approval of the Resolution Plan, he is under instructions from the suspended Board of Directors to withdraw the same. However, the Hon'ble Tribunal misinterpreted the submissions made by the Counsel appearing for Board of Director as objections raised by both Promoters and Guarantors were also withdrawn and the order were reserved in the matter Further, vide order dated 30.10.2023, the Hon'ble Tribunal allowed the I.A. 1699 of 2021 and approved the Resolution Plan submitted by the Respondent no. 2 without even considering the objections of the Appellants which is direct contravention of the principle of natural justice and in derogation of the provisions of law."

14. Counsel for the Appellant has vehemently argued that

objections filed by the Appellant should have been decided by the

Tribunal in one way or other and it is also submitted that the

Tribunal has mis-interpreted the submissions made by the

Counsel appearing for the guarantors while allowing the

withdrawal of the objections.

15. On the other hand, Counsel for the Respondents have

submitted that all the guarantors as LR's of Darshana Devi have

given unconditionally and irrevocably an undertaking and bind

themselves to transfer/sell the critical assets owned by them to the

SRA so as to an enable effective resolution to take place and to

keep the company as going concern. The affidavit filed by them is

reproduced as under:-

11 12 13 14 15

16. It is further submitted that offer made by the Appellants was

not accepted by the Banks and the very fact that the objections

filed by the Appellants to the application bearing I.A. No. 1699 of

2021 were withdrawn by none else then their counsel Shaurya

Shyam, it does not lie in the mouth of the Appellants to challenge

the impugned order on the ground that their objection has not

been decided by the Tribunal.

17. We have heard Counsel for the parties and perused the record

with their able assistance.

18. The Appellants are the legal heirs of Mrs. Darshan Devi, one

of the guarantors of the CD. The issue involved in this appeal is

about 6 critical assets or parcels of land which are reproduced as

under:-

S. No. Description of Ownership Property 1. 4K-16M Ishwar Chand Goel 2. 45K-08M Subhash Chand Goel 3. 20K-6MM Late Mrs. Darshana Devi 4. 23K Late Mrs. Darshana Devi 5. 15K-4M Praveen Kumar Goel 6. 16K Praveen Kumar Goel 16

19. The objection was filed about six parcels of the land to the

application filed by the R1 bearing IA No. 1699 of 2021 but the

said objections were withdrawn by the Appellant through their

counsel and in this regard a specific order was passed by the

Tribunal on 04.09.2023 which remained unchallenged either by

way of an appeal or by way of an application before the Tribunal

for the recall of the order on the alleged ground that the statement

made by the Shaurya Shyam was mis-interpreted by the Tribunal.

The order dated 04.09.2023 has thus become final between the

parties because as per Section 61 of the Code a person aggrieved

by an order of Tribunal has a right to challenge the said order by

way of an appeal. On 04.09.2023, the Tribunal reserved the order

on the application bearing I.A. No. 1699 of 2021 which was

ultimately pronounced on 30.10.2023 i.e. almost after two months

but during this period also no effort was made by the Appellants

for recalling of the order dated 04.09.2023, had it been, factually

incorrect as stated in the appeal that there was a mis-

understanding on the part of the Tribunal while rejecting all the

objections including the objection filed by the Appellants as having

been withdrawn by their counsel who had also appeared on behalf

of the Appellants. Moreover, the guarantors have individually filed 17

their affidavits and in which they have averred that they will not

claim the critical assets owned by them so as to enable an effective

resolution to take place and to keep the company as a going

concern.

20. Thus, in view thereof it appears that the Appellants are now

crying over the spilled milk by filing the present appeal which has

no merit for the purpose of interference with the impugned order

passed by the Tribunal.

21. Thus, the appeal is hereby dismissed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Barun Mitra] Member (Technical)

[Naresh Salecha] Member (Technical) Sheetal /rr