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Judgment
Per Justice N. Seshasayee, Member (Judicial)
The appellant herein is the financial creditor who challenges certain orders passed by the Adjudicating Authority in I.A. 2154 of 2024, I.A. 1716 of 2024 and I.A. 1712 of 2024 in CP (IB) No.124/Chd/Pb/2023 in these appeals.
Facts
The material facts which are relevant for the disposal of these appeals may now be stated:
On 13.05.2018, the appellant as the financial creditor had laid C.P.237 of 2019 a petition under Section 7, IBC against the Corporate Debtor. Earlier, the appellant was secured with a Recovery Certificate issued by the DRT in O.A.2423 of 2017 against the CD for about Rs.36.14 crores. In its petition the appellant had alleged that the CD had defaulted in paying a debt due of Rs.1253 crores.
Even as this petition was pending adjudication, the second respondent herein, another financial creditor of the same Corporate Debtor (CD, in short) had laid CP 124 of 2023, again under Section 7, IBC against the same Corporate Debtor.
On 16.04.2024, the Adjudicating Authority passed an Order admitting the CD to CIRP in the second mentioned petition in CP 124 of 2023, which to repeat was filed by the second respondent. Consequently, the petition filed by the appellant herein has become infructuous.
On 03.05.2024, the IRP constituted a COC comprising of the appellant and the second respondent, and submitted its report on the constitution of the COC vide I.A. No.2154 of 2024.
On 16.05.2024, the IRP was confirmed as RP and on the same day RP laid I.A. 1716 of 2024 for recording his confirmation as RP before the Adjudicating Authority.
Earlier in April, 2024, the appellant preferred a claim for around Rs.3,642 crores before the IRP, whereas the second respondent had preferred a claim for about Rs.852.70 crores.
On 03.05.2024, as against a claim of about Rs.3,642 crores of the appellant, the IRP has admitted only Rs.121.32 crores, based on the recovery certificate of the DRT. while he has admitted the entire claim of the second respondent. Indeed, the appellant’s voting share in the CoC was determined at 12.42%. This was challenged by the appellant in I.A. No.1418 of 2024 on 04.06.2024.
It is in this backdrop, on 19.07.2024 the RP reconstituted the COC by including few more financial creditors and took out I.A. No.1712 of 2024 for recording the same.
2.2(a) Turning to I.A. No.1418 of 2024 wherein the appellant had challenged the RP’s decision not to admit its entire claim, it had sought the following reliefs:
“a)To adjudicate the claim of the applicant and direct the Respondent to admit the total claim of the Applicant in accordance with Law and accordingly to reconstitute the CoC in accordance with the total claims of the Applicant;
b)Direct the Respondent to put all the resolutions passed by the committee of creditors before or during the pendency of this application to be revoted based on the reconstituted Committee of Creditors;
c)Pass any order(s) which the Hon’ble Tribunal may deem fit and proper in the interest of justice and equity.”
2.2(b) On 18.12.2024 the Adjudicating Authority passed an Order allowing I.A. No.1418 of 2024 filed by the appellant. The operative portion of the said Order reads as below:
“11.Based on the above facts and circumstances, it is seen that the RP considered the claim of the Applicant solely on the basis of the decree (not executed so far) passed by the Hon'ble DRT without considering the other documents submitted by the Applicant and claim of the MIPL was considered on the basis of the documents with the interest @14.5% monthly rests instead of the quarterly rests, which is not as per the agreement. Moreso, the DRT decree has allowed the claim of Applicant partly by allowing simple interest at the rate of 10.06% instead of agreed interest. Therefore, there are discrepancies in admitting and examining the claim of both the Applicant and MIPL. Whereas, as per Regulation 14 of the CIRP Regulations, 2016, the RP has the power to determine the amount of the claim by making the best estimate of the amount of the claim based on the information available with him. Further, RP can revise the amount of the claims admitted including the estimate of claims made under sub-section (1) of the Regulation 14 of the CIRP Regulations, when he comes across the additional information warranting such revision. In these circumstances, the proportional representation given by RP on the basis of wrong calculations of claims to financial creditors in CoC is set aside. Thus, the Resolution Professional is directed to reconsider the claims afresh with the interest as per the agreement of both the financial creditors i.e. Applicant-Stressed Assets Stabilization Fund and Mudraksh Investment Pvt. Ltd. on the Insolvency Commencement Date based on the already submitted documents like agreements in relation to the financial debt, Bankers Book of Evidence, NeSL record of default, DRT decree; financial statements of Corporate Debtor, etc. The Resolution Professional is further directed to reconstitute the CoC within 15 days of this order and till the new CoC is constituted in compliance of this Order, no further steps shall be taken by the existing CoC and RP.”
In effect the Adjudicating Authority has dissolved the constitution of the CoC and directed the RP to reconstitute the CoC and to revisit the voting share of the appellant, which necessarily implies to revisit the claim
2.2(c). Pursuant to the Order passed in I.A. 1418 of 2024, the RP has revisited the claim of the appellant but only to reaffirm his earlier decision to accept only about Rs.121 crores. This was on 03.01.2025. It is stated that this proceeding of the RP has not been challenged by the appellant. On the same day (03.01.2025) RP also reconstituted the COC and proceeded to take out I.A. 76 of 2025. The same is stated to be pending. This is the setting.
While things stood thus, on 08.05.2025, the Adjudicating Authority took up several interlocutory applications which included I.A. 1712 of 2024, 1716 of 2024 and 2154 of 2024 and passed the following Order:
| I.A. Number | Order |
|---|---|
| I.A. No.1712 of 2024 | “The present application has been filed by the RP under Section 18(c) and 21(1) with the relevant regulations to place on record the reconstitution of CoC. The same is taken on record subject to just exceptions. Thus, IA(IBC)/1712(CH)2024 is disposed of accordingly.” |
| I.A. No.1716 of 2024 | “The present application has been filed under Section 22(3) for the confirmation of the IRP-Mr. Shamsher Bhadur Singh as RP in pursuance of 1st CoC meeting held on 09.05.2024. Although, it is stated by Mr. Virender Ganda, Senior Advocate that this application may be disposed of with the contempt application which will be decided on merits. However, the same is not acceded to. Thus, IA(IBC)/1716(CH)2024 is allowed and disposed of accordingly.” |
| I.A. No.2154 of 2024 | “The present application has been filed under Section 21(1) regarding the Constitution of 1st CoC meeting. Although, it is stated by Mr. Virender Ganda, Senior Advocate that this application may be disposed of with the contempt application which will be decided on merits. However, the same is not acceded to. Thus, IA(IBC)/2154(CH)2024 is disposed of accordingly.” |
| I.A. No.76 of 2025 | “The present application has been filed by RP to place on record the re-constitution of CoC in pursuance of order dated 18.12.2024 passed in IA No.1418/2024. However, Mr. Virender Ganda, Learned counsel for SASF stated that the Constitution of Committee is not in accordance with the intent of the order dated 18.12.2024. Learned counsel for the RP is directed to supply the copy of the present application to Mr. Virender Ganda, Senior Advocate. Hence, Mr. Virender Ganda, Senior Advocate is directed to file the reply of the same within two weeks with a copy in advance to counsel opposite. Let the matter be listed on 03.06.2025.” |
It is in this backdrop, the appellant has preferred triple appeals against orders passed in I.A. 2154 of 2024, I.A. 1716 of 2024 and I.A. 1712 of 2024 in this batch of three appeals.
Note: It may be stated that the appellant chose to include all the three interlocutory applications referred to above in its appeal memorandum in all the three appeals so much so when these appeals were taken on record the Registry is also given three different numbers which apparently are not successive numbers for the three orders under challenge, but it did not specifically denote which appeal relates to which specific order of the Adjudicating Authority. This practice we deprecate as it will cause considerable confusion while disposing of the appeals.
Arguments:
Appearing for the appellant, Mr. Virender Ganda, senior counsel, submitted that when once the constitution of the COC is set aside by the Adjudicating Authority vide its Order dated 18.12.2024 necessarily everything which the COC has done is nullified. Indeed, even RP cannot continue as a RP since that was also pursuant to the decision of the first COC. To fortify his submissions reliance is placed on the authority of this Tribunal in Edelweiss Asset Reconstruction Company Ltd. Vs Mohit Goyal [Company Appeal ((AT) (Insolvency) No.583 of 2022.
Per contra, Mr. Sumant Batra, the learned counsel appearing for the respondent submitted that the appellant was a member of the COC at all times and therefore the Order of the Adjudicating Authority in I.A. 1418 of 2024 must be understood only with reference to the extent of voting right which the appellant may have in the COC and hence the decision of the COC does not deserve to be set at naught. Indeed, the proviso to Regulation 12(3) of the CIRP Regulations declares that a claimant – financial creditor would become a member of the COC only from the time it was admitted into the COC and there is nothing in the regulations to negate the legitimacy of those that have been done up to the point. Reliance was placed on the ratio in Jatinder Pal Builders Pvt., Ltd., Vs Sandeep Goel, RP for Brys Hotels Pvt., Ltd., [(2023) ibclaw.in 377 NCLAT]. In the context of the present case, submitted the learned Counsel, the issue does not involve non-inclusion of the appellant in the COC but what its voting share should be. Secondly, inasmuch as the RP has reaffirmed its earlier decision vis-à-vis the claim made by the appellant on 03.01.2025 and given the fact the appellant has not chosen to challenge the same till now would indicate that on facts the appellant cannot even contend that the decision of the COC up till now is bad in law.
The Counsel for the second respondent chiefly adopted the arguments of the Counsel for Respondent No.1.
Discussion and decision
The IRP reconstituted for the first time the CoC and took out I.A.1712 of 2024, then I.A. 2154 of 2024 will survive for consideration. Firstly, I.A. 2154 of 2024 was filed after the constitution of the first COC in which the appellant admittedly is a member. But when the RP had reconstituted the COC by adding few more financial creditors into it and laid I.A. 1712 of 2024, I.A. 2154 of 2024 literally stand superseded. However, for the reasons which we are not able to adequately fathom, the tribunal has chosen to keep alive I.A. 2154 of 2024. Necessarily the appeal against an Order perceived to have been passed but has not been actually passed, can stay on the file of this Tribunal.
The second aspect is that the when on 18.12.2024, the RP had taken out I.A.2154 of 2024 for recording the constitution of the first CoC followed by I.A.1712 of 2024 for recording of the re-constitution of the CoC were set at naught vide Order in I.A.1418 of 2024, both these I.A.s merged in that Order. And, the RP has since reconstituted the CoC pursuant to the Order dated 18.12.2024 in I.A.1418 of 2024, and has taken out I.A.76 of 2025, and this is admittedly pending. Therefore, nothing remains to be considered vis-à-vis I.A.1712 of 2024. This implies the appeal against the I.A.1712 of 2024 cannot also be does not survive consideration. Turning to the ratio in Edelweiss Asset Reconstruction Company case relied on by the appellant, unlike in the present case where the appellant has always been in the CoC, that was a case where the appellant was excluded from the CoC and hence the ratio therein has little application to the facts-scenario of the present case.
What remains to be considered is the appeal against the order in I.A.1716 of 2024. This application has been filed for recording the appointment of IRP as RP. This Order is not an adversarial order but more in the nature of a procedural order. The nearest reason where we could sense that the appellant might have been aggrieved could be gathered from paragraph 7.15 of the appeal memorandum. Here the appellant alleges that its claim has been deliberately reduced by the RP on he conniving with the second respondent. But the fact today remains that after the Order dated 18.12.2024, the RP had revisited the claim of the appellant and had again affirmed his earlier decision, but this Order, it is stated, has not been challenged. And, the appellant has also not brought to our notice details of any appeal that he has filed against the second mentioned proceeding of the RP confirming his earlier decision on the appellant’s claim. The only option now open to the appellant is to place its submissions in the pending I.A.76 of 2025.
In conclusion, we do not find merit in any of these appeals, and accordingly all the three appeals are dismissed. No costs.