Prashant Properties Pvt Ltd vs Vijaykumar V Iyer Rp Of The Corporate ...

Prashant Properties Pvt. Ltd. ...Appellant

Versus

Vijaykumar V. Iyer RP of the Corporate Debtor & Ors. ...Respondents

Present: For Appellant: Mr. Dhruba Mukherjee and Mr. Kumar Anurag Singh, Advocates. For Respondents: Mr. Anup Kumar, Advocate.

ORDER

(Through Virtual Mode)

05.06.2020 The Adjudicating Authority (National Company Law

Tribunal), Kolkata Bench, Kolkata rejected claims made by the Appellant -

'M/s Prashant Properties Pvt. Ltd.' on the ground that the Resolution Plan had

already been approved on 08.04.2019 by the Adjudicating Authority, which

had no power to review its own decision. This rejection order, which is part of

the composite order passed by the Adjudicating Authority in CP(IB)No.

595/KB/2017 on 26.02.2020, has been assailed by the Appellant through the

medium of instant appeal.

2. Appellant claimed that it was entitled to use the brand 'Elegant' and

'Family of Marks' as holder of the same. It sought intervention by filing of

CA No. 124/KB/2020 in CA(IB) No. 937/KB/2018 which had been pending

determination before the Adjudicating Authority. The Adjudicating Authority

declined to draw an adverse conclusion on the basis of report of the Resolution -2-

Professional and the Forensic Consultant against the management of the

Corporate Debtor though permitted User Agreement was not cancelled while

approving the Resolution Plan. The Adjudicating Authority, apart from holding

that it was not a case of undervalued or preferential transaction, held that the

application preferred by the Appellant was not maintainable as the

Adjudicating Authority had no jurisdiction to determine any issue relating to

the Resolution Plan after the same had been approved.

3. Learned counsel for the Appellant submits that the finding recorded by

the Adjudicating Authority is erroneous in-as-much-as the public notice dated

18.04.2019 issued by the Resolution Professional prior to decision in CA(IB)

No.937/KB/2018 was without jurisdiction and right to use of trademark

'Elegant' based on the approved Resolution Plan has not passed on to the

Successful Resolution Applicant. This submission is contested by learned

counsel for the Respondent who submits that after approval of the Resolution

Plan the Adjudicating Authority had become functus officio and the decision

qua approval of the Resolution Plan could not be reviewed by it.

4. After hearing learned counsel for the parties and wading through the

record, we are of the considered opinion that the Appellant who was an

Operational Creditor could not seek intervention after approval of Resolution

Plan by the Adjudicating Authority. Admittedly, the Resolution Plan was

approved by the Adjudicating Authority on 08.04.2019 and in terms of

provision embodied in Section 31(1) of the I&B Code the approved Resolution

Plan is binding on all stakeholders involved in the Resolution Plan including

Company Appeal (AT) (Insolvency) No. 513 of 2020 -3-

the 'Creditors'. It is not in dispute that approved Resolution Plan has not been

assailed by the Appellant in appeal under Section 61 of the I&B Code and

limitation for filing such appeal has already expired. Thus, the approved

Resolution Plan has attained finality and is beyond the pale of challenge at the

instance of Appellant - 'Operational Creditor'. It also emerges from the record

that the Appellant had all along been represented throughout the Corporate

Insolvency Resolution Process proceedings as a creditor and it could not lie in

his mouth that the proceedings qua the validity or otherwise of the permitted

User Agreement of the brand name were conducted behind its back. If at all

there were any apprehensions in the mind of the Appellant, same have been

allayed by the Adjudicating Authority by observing in Para 33 of the impugned

order that decision as regards plea of Resolution Professional on there being an

undervalued transaction does not have any bearing on the applicability of this

Agreement in future in either way.

5. Thus viewed, we find no merit in this appeal. The same is dismissed. No

costs.

[Justice Bansi Lal Bhat] Acting Chairperson

[Justice Anant Bijay Singh] Member (Judicial)

[Dr. Ashok Kumar Mishra] Member (Technical) am/gc

Company Appeal (AT) (Insolvency) No. 513 of 2020