National Spot Exchange Limited vs Anil Kohli, Resolution Professional ...

National Spot Exchange Ltd. ...Appellant

Versus

Anil Kohli, Resolution Professional for ...Respondents Dunar Foods Ltd. & Anr.

Present: For Appellant: Mr. Anupam Lal Das, Sr. Advocate with Mr. Ranjan Kr. Pandey, Mr. Yati Ranjan, Mr. Divyam Garg and Mr. Sandeep Bisht, Advocates.

For Respondents: Mr. Abhishek Anand, Mr. Mohak Sharma and Mr. Sahil Bhatia, Advocates for R-1. Mr. Kevin Setalvad, Sr. Advocate with Mr. Abhishek Singh and Mr. Gyanendra Singh, Advocates for R-2.

ORDER

(Virtual Mode)

15.02.2022: Heard Shri Anupam Lal Das, learned counsel for the

Appellant, Shri Kevin Setalvad, learned counsel appearing for the Resolution

Applicant and Shri Abhishek Anand, learned counsel appearing for the

Resolution Professional. This Appeal has been filed against the order dated

26.11.2019 by which order the learned Adjudicating Authority has approved

the Resolution Plan filed by the Resolution Applicant. The Appellant aggrieved

by said judgment has come up in this Appeal.

2. The Appellant's case in the Appeal is that the CIRP proceedings were

initiated against the Corporate Debtor by order dated 22.12.2017. Appellant

claiming to be Other Creditor has filed a claim amounting to Rs.454.36 Crores.

Cont'd..../ -2-

The Resolution Professional vide email dated 18.06.2018 has rejected the

claim. Appellant's case was that by virtue of a decree dated 16.08.2018 passed

by Bombay High Court in Commercial Suit No. 11/2014, his claim ought to

have been admitted. Appellant challenged the decision of the Resolution

Professional and M.A. No. 608 of 2018 was filed by the Appellant before the

Adjudicating Authority which too was rejected on 06.03.2019. Appellant

preferred an Appeal being Company Appeal (AT) (Ins) No. 683/2019, which

was dismissed by this Appellate Tribunal on the ground of limitation.

Challenging the order of the Appellate Tribunal, Appellant filed Appeal before

the Hon'ble Supreme Court being Civil Appeal No. 6187/2019 - 'National Spot

Exchange Ltd. vs. Anil Kohli, Resolution Professional for Dunar Foods

Limited', which was pending at the time when Resolution Plan was approved

by the Adjudicating Authority by order dated 26.11.2019. The present Appeal

has been filed against order dated 26.11.2019 by which Resolution Plan has

been approved.

3. The Appeal being Civil Appeal No. 6187/2019 filed by the Appellant

against the order dated 05.07.2019 rejecting the Company Appeal of the

Appellant challenging the order of the Adjudicating Authority rejecting his

claim was too heard and decided by the Hon'ble Supreme Court vide judgment

and order dated 14.09.2021, which has been filed before us.

4. Learned counsel for the Appellant submits that the Appeal before this

Appellate Tribunal challenging the order of the Adjudicating Authority was

dismissed on the ground of limitation and Hon'ble Supreme Court has also

Company Appeal (AT) (Insolvency) No. 424 of 2020 -3-

affirmed the decision of the Appellate Tribunal on the ground of limitation,

hence, there is no consideration on the merits of the claim of the Appellant.

He further submits that although it is correct that Decree passed by the

Bombay High Court in Commercial Suit No. 11/2014 is not against the

Corporate Debtor but against the sister concern - P D Agroprocessors Ltd. He

further submits that large number of funds were siphoned by the Corporate

Debtor from the P D Agroprocessors Ltd. It is submitted that assets were

attached and the dispute with regard to attachment of assets is pending

consideration in different proceedings before the Hon'ble Supreme Court and

approval of the Resolution Plan would have awaited pendency of the

proceedings regarding attachment of the assets of the Corporate Debtor.

5. Learned counsel for the Respondent refuted the submissions of learned

counsel for the Appellant submitting that the claim of the Appellant having

been rejected by the Resolution Professional which was upheld by the

Adjudicating Authority and Appeal being dismissed by this Appellant Tribunal

and further by the Hon'ble Supreme Court, the Appellant has no stakes in the

CIRP proceedings. Learned counsel for the Respondent further submits that

the Appellant cannot be said to be aggrieved by the approval of the Resolution

Plan, he having no claims in the Resolution Plan to consider.

6. We have considered submissions of learned counsel for the parties and

perused the record.

Company Appeal (AT) (Insolvency) No. 424 of 2020 -4-

7. The Resolution Plan was approved by the Adjudicating Authority on

26.11.2019 when Civil Appeal No. 6187/2019 filed by the Appellant against

the order dated 05.07.2019 dismissing the Company Appeal of the Appellant

was pending before the Hon'ble Supreme Court. Hence, the Appellant's case

was that his Appeal being pending before the Hon'ble Supreme Court it could

not be said that Appellant was not aggrieved within the meaning of Section 61

to file present Appeal. Hence, the Appeal could not be said to be non-

maintainable, at the time when it was filed by the Appellant. However, we

cannot loose sight that the claim of the Appellant got ultimately rejected and

his claim to be Other Creditor of the Corporate Debtor has been rejected

throughout, which order has attained finality in the judgment of Hon'ble

Supreme Court dated 14.09.2021 delivered in Civil Appeal No. 6187/2019.

We are of the view that in this insolvency proceeding, Appellant cannot be said

to have any claim to be considered in the Resolution Plan. His claim having

been finally rejected, in the Resolution Plan it cannot be reflected. Hence, the

Appellant could not be said to be aggrieved with regard to Resolution Plan

approved on 26.11.2019 and no grounds having been made out by the

Appellant to assail the order dated 26.11.2019, this Appeal cannot be

entertained.

8. Insofar as the submission of the learned counsel for the Appellant with

regard to attachment of assets and the matter being still pending before the

Hon'ble Supreme Court, mere pendency of issues regarding attachment of

assets before the Hon'ble Supreme Court in different proceedings cannot be

Company Appeal (AT) (Insolvency) No. 424 of 2020 -5-

said to be have any bearing on the approval of the Resolution plan which is

subject matter of this Appeal. In event any decision is taken by the Hon'ble

Supreme Court, in favour of the Appellant, it will be always open to the

Appellant to take recourse to remedies as permissible in law but that cannot

be a reason to keep this Appeal pending awaiting judgment of the Hon'ble

Supreme Court. With these observations, Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Ashok Kumar Mishra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 424 of 2020