Open Platforms Pvt. Ltd vs Mr. Vikram Bajaj (The Resolution ...

IN THE MATTER OF: Open Platforms Pvt. Ltd. & Anr. ...Appellants

Versus

Vikram Bajaj The Resolution Professional of Net4 India Ltd. & Ors. ...Respondents

Present: For Appellant : Mr. Ramesh Singh, Sr. Advocate with Mr. Sumit K. Batra, Mr. Manish Khurana, Ms. Priyanka Jindal and Ms. Hage Nanya, Advocates

For Respondent : Mr. R. P. Agrawal, Ms. Reema Mishra, Advocates for R-3. Ms. Pooja Mahajan, Mr. Karan Vir Khosla and Ms. Arveena Sharma, Advocates for R-1.

ORDER

(Hybrid Mode)

12.02.2025 Heard Mr. Ramesh Singh Learned Counsel for the

Appellant and Ms. Pooja Mahajan for the Respondent.

This Appeal has been filed against the order dated 20.09.2024 in I.A.

No. 431 of 2024 along with I.A. No. 6175 of 2023 by which order the

Adjudicating Authority has directed for liquidation of the Corporate Debtor.

The brief facts necessary to be noticed for deciding the appeal are that CIRP

against the Corporate Debtor commenced on 08.03.2019. The Committee of

Creditors approved the Resolution Plan on September, 2019 and the

application was submitted for approval of the resolution plan before the

Adjudicating Authority. The Appellant has filed an application for withdrawal

of the resolution plan before the Adjudicating Authority in the year 2021 which remain pending ultimately the Adjudicating Authority passed an order

approving the Resolution Plan by an order dated 18.08.2023.

Learned Senior Counsel Mr. Ramesh Singh submits that he has

withdrawn the application for withdrawal in the year 2023. After the aforesaid

plan approval, the RP communicated that the PBG was invoked on

17.11.2023 on plan being not implementing. Learned Counsel for the

Appellant submits that he has filed the application on 16.11.2023 before the

invocation. Be as it may in the application which was filed by the Appellant,

the following prayers were made by the Appellant:

"a) Allow the present Application and provide clarification with regard to payment of CIRP Cost over and above the amount provisioned in the resolution plan dated 17 September 2019;

b) Direct the Respondent to give the details of the CIRP cost as claimed by him on affidavit;

c) Grant extension in timeline to the Applicant in implementation of the Resolution Plan;

d) Pass any other order(s) that this Ld. Adjudicating Authority may deem fir and proper in the light of the facts and circumstances of the present case."

The Adjudicating Authority by the impugned order has rejected the

application and directed for liquidation.

Mr. Ramesh Singh Learned Senior Counsel appearing for the Appellant

challenging the order submits that in the resolution plan which was approved

the CIRP cost was mentioned only 50 lakhs and hence the claim of Rs. 2.18

Company Appeal (AT) (Insolvency) No. 2222-2226 & 2217 of 2024 2 of 4 crores as CIRP cost was excessive and could not have been implemented. This

was due the above reason that appellant could not implement the plan,

although the Appellant is still willing to implement the plan.

Learned Counsel for the Respondent submits that the plan was

approved in 2019 and in the year 2021 the Appellant filed an application to

withdraw the plan due to which two years period was elapsed and then

ultimately on 18th August 2023 the plan was approved by Adjudicating

Authority. It is further submitted that during the period 2019 to 2023 the

CIRP cost had obviously to increase on account of the Corporate Debtor being

run, there being security charges and other expenses. Hence, with regard to

CIRP cost which was communicated in 2023, it could not have been estimated

in the year 2019 when the plan was approved.

We have considered submission of Counsel for the parties and perused

the record. From the facts of the case is clear that the present is a case were

CIRP commenced on 08.03.2019 and the CoC has approved the resolution

plan on 17.09.2019. After the approval of the plan by Adjudicating Authority

on 18.08.2023, the plan could not be implemented due to the reason as

contended by the Appellant and the application was filed seeking various

reliefs as noted above. The Adjudicating Authority has directed for liquidation

after rejecting the I.A. filed by the Appellant and allowing the I.A. No. 431 of

2024 filed by the RP seeking liquidation. The substantial period has already

elapsed and the plan have not been implemented.

Company Appeal (AT) (Insolvency) No. 2222-2226 & 2217 of 2024 3 of 4 We are of the view that the reasons sought to be given by the Appellant

for non-implementation the plan cannot be sufficient ground to interfere with

order of liquidation which has been passed by the Adjudicating Authority. The

plan having not been implemented, we are of the view that the reasons for

non-implementation cannot be ground for appellant to seek reliefs as claimed

in the application. In so far as the CIRP cost which was informed to the

Appellant after the approval of the resolution plan by the Adjudicating

Authority, that could have been challenged before the Adjudicating Authority.

However, we are of the view that since liquidation has already been directed

it is for the liquidator to take a call on the cost as claimed before the liquidator

and we in this appeal are not required to express any opinion with regard to

the amount of the CIRP cost, which may be issue to be examined in the

liquidation proceeding. We thus, are of the view that present is a not a case

where the liquidation directed by the impugned order need interference by

this Tribunal. Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) pks/nn

Company Appeal (AT) (Insolvency) No. 2222-2226 & 2217 of 2024 4 of 4