Sunil P.K. vs Hindustan Newsprint Limited & Anr.

[Per: Shreesha Merla, Member (Technical)]:

Company Appeal (AT) (CH) (Ins.) No. 75 / 2022 is filed challenging the impugned order in IA(IBC)/21/KOB/2021 in TIBA/03/KOB/2019 dated 29.01.2021, whereby the Adjudicating Authority has approved the Resolution Plan submitted by M/s. Kerala Industrial Infrastructure Development Corporation (KINFRA). The Appellant in this Appeal is one among the Operational Creditors, being the Contractor providing the services to the Corporate Debtor Company. The Appeal bearing Company Appeal (AT) (CH) (Ins.) No. 69 / 2022 has been preferred by the group of five Operational Creditors, being Work Contractors, having supplied services to the Corporate Debtor Company, being aggrieved by the Approval of the `Resolution Plan’, by the Adjudicating Authority, vide Impugned Order dated 29.01.2021. The Appeal bearing Company Appeal (AT) (CH) (Ins.) No. 77 / 2022 is preferred by an Operational Creditor, being a supplier of special paper chemicals to the Corporate Debtor Company, also challenging the Approval of the Resolution Plan. Since, all the three Appeals were filed by the Operational Creditors, challenging the same common Order dated 29.01.2021 and hence they are being disposed of, by this common Order.

The Learned Counsel for the Appellants submitted that only 16% of the Dues of the Contractors / Operational Creditors has been allowed in the said Resolution Plan and therefore, gross injustice has been done to the Appellants herein. It is also submitted that the Operational Creditors were not invited by the Resolution Professional to represent them in the Committee of Creditors (CoC) meetings and therefore, there was no proper representation and hence, the Operational Creditors could not challenge the meagre amounts allocated to them in the Resolution Plan. It is the main grievance of all the Appellants that only 16% of the Bill Amounts has been paid to them and therefore the Plan is in violation of Section 30(2) of the Insolvency and Bankruptcy Code, 2016.

The Learned Counsel for the Respondent / Financial Creditor submitted that this Appeal is bad for non-joinder of necessary parties, namely, the Successful Resolution Professional (SRA) and the Resolution Professional (RP) and therefore, sought for dismissal of this Appeal in limine.

It is also submitted by the Learned Counsel for the 2^nd Respondent that KINFRA has paid the entire Plan amount of Rs.145.6016 Crore, prior to 20.03.2021 and the Plan has already been since implemented.

This Tribunal while dealing with the batch of Appeals filed by the Employees of the Corporate Debtor Company in Mrs. C.G. Vijyalakshmi Vs. Shri Kumar Rajan, Resolution Professional of Hindustan Newsprint Limited & Ors., in Company Appeal (AT) (CH) (INS.) No. 29 / 2021 (lead case), challenging the very same Resolution Plan and the Order of the Adjudicating Authority, dated 29.01.2021, has allowed the `Appeals in Part’, observing as follows:

In the aforenoted paragraph, it is specifically observed that this `Tribunal’, did not find any material irregularity in the Approval of the Resolution Plan, except for directing the Successful Resolution Applicant to make payment of the unpaid `Provident Fund’ and `Gratuity Fund’ and `pending dues’ to the `Employees’, till the date of `Corporate Insolvency Resolution Process’, after deducting the amounts already paid.

Regarding the rest of the allegations raised by the Appellants, this `Tribunal’, did not find any evidence to support their contentions.

It is also pertinent to mention that this `Tribunal’, while dealing with another batch of Appeals namely, Company Appeal (AT) (CH) (INS.) No. 305 / 2021, Company Appeal (AT) (CH) (INS.) No. 23 / 2022, Company Appeal (AT) (CH) (INS.) Nos. 112 to 124 / 2021, Company Appeal (AT) (CH) (INS.) No. 267 / 2021, Company Appeal (AT) (CH) (INS.) No. 283 / 2021, Company Appeal (AT) (CH) (INS.) No. 202 / 2021 and Company Appeal (AT) (CH) (INS.) No. 344 / 2021, filed by other Creditors, challenging the very same issue of `Approval of the Resolution Plan, dated 29.01.2021’, had dismissed the Appeals, based on the observations, made by this Tribunal in Paragraph 29 in Mrs. C.G. Vijyalakshmi Vs. Shri Kumar Rajan, Resolution Professional of Hindustan Newsprint Limited, in Company Appeal (AT) (CH) (INS.) No. 29 of 2021.

It has been categorically noted by this Tribunal in these batch of Appeals that the Order has attained finality in the absence of any challenge by way of an Appeal, before the Hon’ble Supreme Court of India.

It was represented by the Learned Counsel for the Successful Resolution Applicant in that batch i.e., Company Appeal (AT) (CH) (INS.) No. 305 / 2021 along with other Appeals mentioned above that the Order, passed by this Tribunal on 08.02.2023, was challenged before the Hon’ble Supreme Court of India, vide Diary No. 16859 / 2023, only with respect to the directions issued in this Order for making payment of unpaid `PF Fund’ and `Gratuity Fund’ to the `Employees’.

It is further submitted by the Learned Counsel that the Appeal has not yet been listed. In response to a pointed query by this Bench to both the Learned Counsels, as to the status of the Appeal, said to have been preferred before the Hon’ble Supreme Court of India, both the Learned Counsels answered that the Appeals are yet to be numbered and that there is no direction from the Hon’ble Supreme Court.

As the Resolution Plan has already been implemented way back in the year 2021, specifically keeping in view that this Tribunal has confirmed the Approval of the Resolution Plan by the Adjudicating Authority, except for payment of unpaid `Provident Fund’ and `Gratuity Fund’, this Tribunal does not find any merit in these Appeals.

For all the aforegoing reasons, the instant Company Appeal (AT) (CH) (Ins.) No. 75 / 2022, Company Appeal (AT) (CH) (Ins.) No. 69 / 2022 and Company Appeal (AT) (CH) (Ins.) No. 77 / 2022 are dismissed accordingly. No Order as to Costs. The connected pending IA Nos. 144, 155 and 156 of 2022 are Closed.