National Spot Exchange Ltd. vs Anil Kohli, Resolution Professional for Dunar Foods Ltd. & Anr.

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.

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. 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.

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.

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 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.

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.

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

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.

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 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.