The Dy Commissioner Of Customs Deec ... vs Vandana Garg

The Dy. Commissioner of Customs DEEC ...Appellant (Monitoring Cell)

Versus

Ms. Vandana Garg ...Respondent

Present: For Appellant: Ms. Nitya Sharma and Mr. Money Jain, Advocates.

For Respondent: ORDER

(Through Virtual Mode)

10.11.2020: Deputy Commissioner of Customs DEEC (Monitoring Cell) O/o

the Commissioner of Customs (Export) New Custom House, Mumbai (Appellant)

is aggrieved of rejection of its application for condonation of delay of 1111 days

in submitting proof of claim against the Corporate Debtor - 'M/s Jyoti Structures

Ltd.', to accept and admit the claim of Appellant and also recall the order dated

27th March, 2019 passed in M.A. No. 1129/2019 in CP (IB) 1137/MB/2017

passed by the Adjudicating Authority (National Company Law Tribunal), Court-

I, Mumbai Bench on the ground that the Resolution Professional failed to

check/consider Book of Accounts vis a vis Appellant while making the Resolution

Plan and the Adjudicating Authority failed to appreciate the important issue.

2. After hearing learned counsel for the Appellant, we find that the Resolution

Plan in the Corporate Insolvency Resolution Process against the Corporate

Cont'd...../ -2-

Debtor has been approved by the Committee of Creditors as also by the

Adjudicating Authority. That being the admitted position, Section 31 (1) of the

I&B Code would come into play which provides that the Resolution Plan

approved by the Committee of Creditors shall be binding on all stakeholders.

After approval of the Resolution Plan by the Adjudicating Authority, the

Successful Resolution Applicant could not be allowed to be faced with claims

filed or admitted after the Resolution Plan was submitted by such Successful

Resolution Applicant. The Successful Resolution Applicant, before submission

of the Prospective Resolution Plan is entitled to know the liability of the Corporate

Debtor so that he can tailor his Prospective Resolution Plan accordingly and

make provision for satisfaction of the claims and making payments in terms of

the approved Resolution Plan. The dictum of Hon'ble Apex Court in para 67 of

the judgment rendered in "Committee of Creditors of Essar Steel India

Limited Vs. Satish Kumar Gupta & Ors.", Civil Appeal No. 8766-67 of

2019, reported in MANU/SC/1577/19 is relevant in this regard. Relevant

portion thereof is reproduced hereinbelow:

"67. For the same reason, the impugned NCLAT judgment in

holding that claims that may exist apart from those decided on

merits by the resolution professional and by the Adjudicating

Authority/Appellate Tribunal can now be decided by an

Company Appeal (AT) (Insolvency) No. 964 of 2020 -3-

appropriate forum in terms of Section 60(6) of the Code, also

militates against the rationale of Section 31 of the Code. A

successful resolution Applicant cannot suddenly be faced with

"undecided" claims after the resolution plan submitted by him

has been accepted as this would amount to a hydra head

popping up which would throw into uncertainty amounts

payable by a prospective resolution Applicant who

successfully take over the business of the corporate debtor. All

claims must be submitted to and decided by the resolution

professional so that a prospective resolution Applicant knows

exactly what has to be paid in order that it may then take over

and run the business of the corporate debtor. This the

successful resolution Applicant does on a fresh slate, as has

been pointed out by us hereinabove. For these reasons, the

NCLAT judgment must also be set aside on this count."

3. In the instant case it is not disputed that the claim has been filed by the

Appellant not only at a highly belated stage but also after approval of the

Resolution Plan. In these circumstances, the Adjudicating Authority was right

in rejecting the application as being non maintainable.

Company Appeal (AT) (Insolvency) No. 964 of 2020 -4-

4. We find no legal infirmity in the impugned order which has to be affirmed.

The appeal is accordingly dismissed. However, there shall be no orders as to

costs.

[Justice Bansi Lal Bhat] Acting Chairperson

[Justice Anant Bijay Singh] Member (Judicial)

[Shreesha Merla] Member (Technical) am/gc

Company Appeal (AT) (Insolvency) No. 964 of 2020