Union Bank Of India vs Emc Ltd. Through Resolution ...

Union Bank of India ...Appellant

Vs

EMC Ltd. Through Resolution Professional Kannan Triuvebgadam & Ors. ...Respondents

Present: For Appellant: Mr. Rahul Gupta, Advocate.

For Respondents: Mr. Diwakar Maheshwari and Mr. Shreyas Edupuganti, Advocates.

ORDER

04.12.2019: The Appellant has challenged the plan approved by order

dated 21st October, 2019 passed by the Adjudicating Authority (National

Company Law Tribunal), Kolkata Bench, Kolkata. By said order other

applications were also disposed of.

2. On 2nd December, 2019, when the matter was taken up, the following

observation was made by this Appellate Tribunal:-

"ORDER

02.12.2019 Prima-facie the Appeal appears to be frivolous

filed by Union Bank of India as it has consented in favour of

the 'Plan' and is now challenging the 'Plan'. Nothing on the

record to suggest that grounds mentioned in either sub-

section (3) of Section 61 of Insolvency and Bankruptcy Code, -2-

2016 have been taken and if that be so, the Appellant has

not stated as to why it has approved the 'Plan'.

Post the case for orders on 4th December, 2019."

3. Today, it is informed that Union Bank of India has conditionally

approved the plan and not on distribution. Section 32 of the Insolvency and

Bankruptcy Code, 2016 (hereinafter referred to as 'I&B Code') has provisions

for filing an appeal against the approved plan and it reads as follows:-

"32. Appeal. - Any appeal from an order approving the

resolution plan shall be in the manner and on the grounds

laid down in sub-section (3) of section 61."

4. As per Section 32, the plan approved can be challenged on the grounds

laid down in sub-section (3) of Section 61, which are as follows:-

"61. Appeals and Appellate Authority.(1)

Notwithstanding anything to the contrary contained

under the Companies Act 2013, any person aggrieved by

the order of the Adjudicating Authority under this part may

prefer an appeal to the National Company Law Appellate

Tribunal.

.....x....x...x......

Company Appeal (AT) (Insolvency) No. 1387 of 2019 -3-

(3) An appeal against an order approving a resolution

plan under section 31 may be filed on the following grounds,

namely:--

(i) the approved resolution plan is in contravention of the

provisions of any law for the time being in force;

(ii) there has been material irregularity in exercise of the

powers by the resolution professional during the

corporate insolvency resolution period;

(iii) the debts owed to operational creditors of the

corporate debtor have not been provided for in the

resolution plan in the manner specified by the Board;

(iv) the insolvency resolution process costs have not

been provided for repayment in priority to all other

debts; or

(v) the resolution plan does not comply with any other

criteria specified by the Board."

5. In the present case, the only ground taken is that the distribution has

not been properly made. As the Appellant is a member who distributed the

Company Appeal (AT) (Insolvency) No. 1387 of 2019 -4-

amount, no ground is made out in terms of sub-section (3) of Section 61 and

we find that the distribution was made by the Committee of Creditor in which

Appellant was also a member.

6. For aforesaid reason, we observe that this is a frivolous appeal. We

accordingly dismiss the appeal. No costs.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice Bansi Lal Bhat] Member (Judicial)

[Justice Venugopal M.] Member (Judicial)

am/sk

Company Appeal (AT) (Insolvency) No. 1387 of 2019