National Company Law Tribunal, Kolkata: In a case wherein, Interlocutory Application was filed by Resolution Professional (RP) seeking direction for final approval of resolution plan, the Division Bench of Labh Singh (Judicial Member) and Rekha Kantilal Shah (Technical Member)* approved the Total Resolution Plan and held that the applicant complied with requirement of the Insolvency and Bankruptcy Code, 2016 (IBC). Further emphasised that “Commercial Wisdom of CoC” was to be given paramount status.
Background
The application was filed by the Applicant-RP of Corporate Debtor, SIS Mohan Real Estate Private Limited under Sections 30(6) and 31, IBC seeking direction for final approval of Resolution Plan submitted by Secure Infratech Finserv and Securities Limited. The Committee of Creditors, comprising a single member, approved the Resolution Plan with 100 per cent voting share. Tatanagar Financial Services Limited, Operational Creditor initiated the Corporate Insolvency Resolution Process (CIRP) under Section 9, IBC which was admitted on 31st August 2023. Public announcement was made in accordance with Section 15, IBC read with Regulation 6 of Insolvency and Bankruptcy of India (Insolvency Resolution Process for Corporate Persons) Regulation, 2016 (CIRP Regulations, 2016) regarding initiation of CIRP. Pursuant to the publication of the request for Resolution Plans in accordance with IBC and the corresponding provisions of the CIRP Regulations, 2016 one Resolution Plan was received from an eligible Resolution Applicant. In 8th CoC meeting, the Resolution Plan of the Resolution Applicant was placed before CoC and the Resolution Plan of Secure Infratech Finserv and Securities Limited was approved with 100 per cent Voting Share.
The RP filed the instant Application which included the provisions with respect to the compliances in prescribed form, i.e., Form “H” of Regulation 39(4) of the CIRP Regulations, 2016. It was submitted that the Successful Resolution Applicant (SRA) met the criteria approved by CoC. It was further submitted that SRA was eligible to submit a resolution plan in terms of Section 29-A, IBC and accordingly, a declaration was also furnished in the Application.
The RP submitted the details of various compliances as envisaged within the IBC and the CIRP Regulations, 2016 to which a Resolution Plan had been adhered to. Further, it was submitted that the SRA had submitted its eligibility in terms of Section 30(1) IBC. It was further submitted that the resolution plan did not contravene any of the provisions of law for time being force.
The Resolution Plan dated 28th May 2024 as originally submitted by the SRA, proposed a total amount of ₹1,55,00,000, to be paid over a period of 60 days from the date of approval of the Resolution Plan. The amount of ₹1,55,00,000 as against the total admitted claim of ₹10,45,63,676 represented a haircut of 87.07% for the Operational Creditor.
It was further submitted that in terms of Regulation 35-A read with Regulation 39(2) of the CIRP Regulation, 2016 the RP has not found or determine any avoidance transactions (PUFE transactions) under Sections 43, 45, 50 and 66 IBC on the ground that no documents were available to conduct the audit and persistent non-cooperation from the suspended board of directors.
Analysis, Law and Decision
The RP filed a Compliance Certificate in Form H along with the Plan. On perusal, the same was found to be in order.
The Bench also observed that, Resolution Plan of the SRA, provided:
1. Payment of CIRP Cost as specified under Section 30(2)(a), IBC.
2. Repayment of Debts of Operational Creditors as specified under Section 30(2)(b) IBC.
3. For management of the affairs of the Corporate Debtor, after the approval of the Resolution Plan, as specified under Section 30(2)(c) IBC.
4. The implementation and supervision of the Resolution Plan by the RP and the CoC as specified under Section 30(2)(d) IBC.
The Adjudicating Authority observed in the present application that the CoC with requisite majority had approved to the Resolution Plan, hence as per the CoC, the plan met the requirements of being viable and feasible for the reviving of the Corporate Debtor. The Resolution Plan provided a detailed implementation schedule with specific timelines and the manner in which the management, control and supervision of the corporate debtor would lie.
The Tribunal observed that in matter of K. Sashidhar v. Indian Overseas Bank, (2019) 12 SCC 150, the Supreme Court held that if the CoC had approved the Resolution Plan by requisite percent of voting share, then as per Section 30(6) IBC, it was imperative for the RP to submit the same to the adjudicating authority. The Tribunal held that the “Commercial Wisdom of CoC” was to be given paramount status. It was further held that the Tribunal did not endow with the powers of jurisdiction or authority to analyse or evaluate the commercial decision of the CoC. The Resolution Plan was submitted by the SRA-Secure Infratech Finserv and Securities Limited. SRA got 100 per cent voting share, and the Tribunal cannot interfere in the same.
The Applicant complied with the requirement of the IBC in terms of Sections 30(1), 30(2)(a) to (e) IBC and Regulations 38(1), 38(1-A), 38(2)(a), (b), (c), (d) and 38(3)(a) to (e), 38(1-B) and 39(1), 39(1)(a) and (c) of the CIRP Regulations, 2016. It was observed that the Resolution Plan was not in contravention of any of the provisions of Section 29-A of the Code and was in accordance with law.
The Tribunal observed that the Resolution Plan must be consistent with the extant law. The Resolution Applicant should make necessary applications to the concerned regulatory or statutory authorities for the renewal of business permits and supply of essential services, if required, and all necessary forms along with filing fees etc. And such authority should also consider the same keeping in mind the objectives of the IBC which was essentially the resolving the insolvency of the Corporate Debtor.
The Tribunal held that the reliefs and concessions as prayed in the Resolution Plan should be available in accordance with the principle laid down by Supreme Court in Ghanashyam Mishra & Sons (P) Ltd. v. Edelweiss Asset Reconstruction Co. Ltd., (2021) 9 SCC 657 (Ghanashyam Mishra & Sons (P) Lt d. Case) and subject to the observations or limitations in the in Embassy Property Developments Pvt. Ltd. v. State of Karnataka, (2020) 13 SCC 308. It was held that regarding the extinguishment of claims which arose prior to the initiation of the CIR Process and which have not been claimed are granted in terms of the law laid down by the Supreme Court in Ghanashyam Mishra & Sons (P) Ltd. case. Thus, on the date of approval of the resolution plan by the adjudicating authority, all such claims, that were not a part of the resolution plan, should stand extinguished and no person would be entitled to initiate or continue any proceedings in respect to a claim, which was not part of the resolution plan.
Regarding the waivers sought in relation to guarantors, the Supreme Court held in Lalit Kumar Jain v. Union of India, (2021) 9 SCC 321 that the sanction of a resolution plan and finality imparted to it by Section 31, IBC not per se operate as a discharge of the guarantor’s liability. As to the nature and extent of the liability, much would depend on the terms of the guarantee itself.
The Tribunal held that if there were any personal guarantors of the corporate debtor, the personal guarantees should be invoked and an appropriate action against them, in accordance with law, be taken.
The Tribunal approved the Total Resolution Plan submitted by SRA with directions.
[Tatanagar Financial Services Ltd. v. SIS Mohan Real Estate (P) Ltd, I.A. (IB) No. 488/KB of 2025, dt. 6-8-2026, NCLT]
*Order by Rekha Kantilal Shah Technical Member
Advocates who appeared in this case:
For the Applicant(s): Ms. Alisha Kar, Advocate
For Respondent(s): Swarnendu Chatterjee, Ms. Nimisha Agarwal and Ms. Aishwarya Agarwal,
