KALPRAJ DHARAMSHI & ANR. versus KOTAK INVESTMENT ADVISORS LTD. & ANR.
[2021] 2 S.C.R. 677, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Facts
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KALPRAJ DHARAMSHI & ANR.
v.
KOTAK INVESTMENT ADVISORS LTD. & ANR.
(Civil Appeal Nos. 2943-2944 of 2020)
MARCH 10, 2021
[A.M. KHANWILKAR, B. R. GAVAI AND
KRISHNA MURARI, JJ.]
Insolvency and Bankruptcy Code, 2016:
ss. 10, 61, 238A – Proceedings or appeals before the
adjudicating Authority, appellate tribunal etc – Application of
Limitation Act – On facts, application u/s. 10 by Corporate Debtor
for initiation of Corporate Insolvency Resolution Process –
Successively five Form G notified – Resolution applicant-KIAL
submitted Resolution Plan (RP) within the stipulated time and
resolution applicant-Kalpraj submitted plan after the stipulated time
– Objection raised by KIAL – Subsequently on direction by
Committee of Creditors (CoC), submission of revised plan by KIAL
and Kalpraj – Thereafter, approval of revised plan submitted by
Kalpraj – KIAL challenged the approval of Kalpraj’s Resolution
Plan before NCLT – Plan of Kalpraj approved by NCLT – Thereafter,
KIAL filed Writ Petition before the High Court which was dismissed
on the ground of alternate remedy – KIAL then filed appeal before
NCLAT which was allowed, rejecting Kalpraj submission that appeal
were filed beyond the limitation period prescribed in IBC – On
appeal, held: Provisions of s. 14 of the Limitation Act are available
to KIAL – Applying the principles underlying s. 14, KAIL entitled to
exclusion of the period during which it was bona fide prosecuting
a remedy before the High Court in good faith
and with due diligence,
thus, the appeals filed before NCLAT within the limitation – Though
an alternate remedy was available to it, it was approaching the
High Court since the issue with regard to functioning of NCLT also
fell for consideration – High Court dismissed the writ petition
relegating KIAL to an alternate remedy available in law – High
Court could have exercised extra-ordinary jurisdiction u/Art. 226
inasmuch as, the grievance was regarding procedure followed by
NCLT to be in breach of principles of natural justice – Limitation
Act, 1963 – s. 29(2) – Constitution of India – Art. 226.
[2021] 2 S.C.R. 677
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Waiver and acquiescence – Inference of – Objection by KIAL
to the acceptance of belated Resolution Plan of Kalpraj – However,
when no choice left, KIAL submitted revised Resolution Plan –
Conduct of KIAL, if amounts to waiver and acquiescence by KIAL
so as to estop it from challenging the participation of Kalpraj –
Held: KIAL had objected to participation of other applicant
submitting plan after the due date as per the last Form G and also
reiterated its objection to the participation of Kalpraj – It cannot
be said that having participated by submitting the revised plans,
KIAL is estopped from challenging the decision of Resolution
Professional (RP) or CoC on the ground of acquiescence and waiver
– Merely because, the revised plans are not submitted with the words
“without prejudice”, would not make any difference – KIAL had no
other option than to submit its revised plans in view of clause 11.2
of the Process Memorandum – Had it not responded, it had to run
the risk of being out of competition – Also it is not established that
KIAL had given up/surrendered its rights to take recourse to the
legal remedies, and that on account of waiver or acquiescence the
parties had altered their position to their detriment.
ss. 10, 30, 31 – Submission and approval of Resolution plan
– Decision of Committee of Creditors-CoC accepting the resolution
plan of Resolution applicant-Kalpraj – NCLAT annulled decision
of CoC to accept the
Resolution Plan – Interference with the decision
of CoC by NCLAT – Correctness of – Held: Statute has not invested
jurisdiction and authority either with NCLT or NCLAT, to review
the commercial decision exercised by CoC of approving the resolution
plan or rejecting the same – Commercial wisdom of CoC is not to be
interfered with, except within the limited scope u/ss. 30 and 31 of
the Code – Decision of CoC was taken by a thumping majority of
84.36% – Only creditor voted in favour of KIAL is having voting
rights of 0.97% – In view of the paramount importance given to the
decision of CoC, NCLAT not correct in law in interfering with the
commercial decision taken by CoC – Furthermore, for a long period,
there was no restraint on implementation of the resolution plan of
Kalpraj, which was duly approved by NCLT and during the said
period, Kalpraj has spend a huge amount for implementation of
the plan – Thus, the decision taken by CoC in accordance with its
commercial wisdom which is duly approved by NCLT, would prevail.
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Corporate Insolvency Resolution Process – Initiation of –
Resolution Plan from prospective resolution applicants – Decision
of Committee of Creditors – Justiciability of, in the court of law –
Discussed.
Limitation Act, 1963: s. 14 – Proceedings before the quasi-
judicial tribunal – Applicability of s. 14 – Held: Though strictly, the
provisions of s. 14 would not be applicable to the proceedings before
a quasi-judicial tribunal, however, the principles underlying the
same would be applicable – Proper approach would be of advancing
the cause of justice, rather than to abort the proceedings – Litigant
would be entitled for exclusion of the period, during which he was
bona fide prosecuting such a wrong remedy.
Doctrines/Principles: Principle of waiver and acquiescence
– When can be inferred – Held: Waiver is an intentional
relinquishment of a right, advantage, benefit, claim or privilege –
For applying the principle of waiver, it has to be established, that
though a party was aware about the relevant facts and the right to
take an objection, he has neglected to take such an objection – It
has to be established that a party expressly or by its conduct acted
in a manner, which is inconsistent with the continuance of its rights
– Whereas, acquiescence would be a conduct where a party is sitting
by, when another is invading his rights – Acquiescence must be
such as to lead to the inference of a licence sufficient to create a
new right in the defendant.
Disposing
of the appeals, the Court
HELD: 1.1 Though the provisions of the Limitation Act, as
far as may be, would apply to the proceedings or appeals before
the Adjudicating Authority, NCLAT, the Debt Recovery Tribunal
or the Debt Recovery Appellate Tribunal, where a period of
limitation for initiation of proceedings is provided under any
special or local law, different from the period prescribed by the
Schedule, the provisions of Section 3 shall apply, as if such period
were the period prescribed by the Schedule. It would further
reveal, that for the purpose of determining any period of limitation
prescribed for any suit, appeal or application by any special or
local law, the provisions contained in sections 4 to 24 (inclusive),
shall apply only in so far, and to the extent to which, they are not
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expressly excluded by such special or local law. [Para 37]
[712-D-G]
1.2 Since under IBC Code there is a period different from
the one which is prescribed by the Schedule to the Limitation
Act, the limitation for an appeal would be governed by Section 61
of the I&B Code, which is a special statute. As such, an appeal
will have to be preferred within a period of thirty days from the
date on which the order was passed by NCLT. However, if NCLAT
is satisfied, that there was sufficient cause for not filing the appeal
within a period of thirty days, it may allow an appeal to be filed
within a further period of fifteen days. As such, the normal period
of limitation prescribed under the I&B Code is thirty days, with
a provision for allowing the filing of an appeal within a further
period of fifteen days, if NCLAT is satisfied, that there was
a sufficient cause for not filing the appeal within thirty days.
[Para 39][713-A-D]
1.3 When a litigant bona fide under a mistake litigates before
a wrong forum, he would be entitled for exclusion of the period,
during which he was bona fide prosecuting such a wrong remedy.
Though strictly, the provisions of Section 14 of the Limitation
Act would not be applicable to the proceedings before a quasi
judicial Tribunal, however, the principles underlying the same
would be applicable i.e. the proper approach will have to be of
advancing the cause of justice, rather than to abort the
proceedings. [Para 51][720-D-F]
1.4 The judgment of NCLT is dated 28.11.2019. As such,
as per Section 61(2) of the I&B Code, the appeal was required to
be filed on or prior to 28.12.2019. The appeal could have been
filed within a further period of fifteen days, if NCLAT was satisfied,
that there was sufficient cause for not filing the appeal within a
period of thirty days. As such, the said period would come to an
end on 12.1.2020. The certified copy of the impugned judgment
of NCLT was made available on 18.12.2019. If the allowance for
the said period is granted, the appeal should have been preferred
on or prior to 2.2.2020. However, in the instant case, the appeal
is filed on 18.2.2020. [Para 40][713-D-F]
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1.5 Immediately after NCLT pronounced its judgment on
28.11.2019 and even before the certified copy was made available
on 18.12.2019, KIAL had filed writ petition before the Division
Bench of the High Court on 11.12.2019 on the principal ground,
that the procedure followed by NCLT was in breach of principles
of natural justice. Such a ground could be legitimately pursued
before a writ court. In that sense, it was not a proceeding before
a wrong court, as such. [Para 54][723-B-D]
1.6 It is a settled principle of law, that non-exercise of
jurisdiction by the High Court under Article 226 of the
Constitution is not a hard and fast rule, but a rule of self-restraint.
When the proceedings invoked before a statutory authority are
de hors the jurisdiction or when they are in breach of principles
of natural justice, the party would be entitled to invoke the
jurisdiction of the High Court under Article 226 of the
Constitution. [Paras 59, 61][724-G-H; 725-H; 726-A]
1.7 In the instant case, perusal of the writ petition would
reveal, that it was the specific case of KIAL, that its application,
objecting to the application of RP for approval of the resolution
plan was heard by a Member (Judicial), whereas, the final orders
were passed by a Bench consisting of Member (Judicial) and
Member (Technical). It has specifically averred, that though an
alternate remedy was available to it, it was invoking the
jurisdiction of the High Court since the question involved was
also
with regard to the manner in which the jurisdiction was
exercised by NCLT. It could thus be seen, that KIAL was bona
fide prosecuting the proceedings before the High Court in good
faith. Perusal of the dates would also reveal, that KIAL was
prosecuting the proceedings before the High Court with due
diligence. Even before the availability of the certified copy, it had
knocked the doors of the High Court. The matter before the
High Court was hotly contested and ultimately, the petition was
dismissed by an elaborate judgment relegating KIAL to the
alternate remedy available to it in law. As such, the conditions
which enable a party to invoke the provisions of Section 14 of the
Limitation Act are very much available to KIAL. If the period
during which KIAL was bona fide prosecuting the writ petition
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before the High Court and that too with due diligence, is excluded
applying the principles underlying Section 14 of the Limitation
Act, the appeals filed before NCLAT would be very much within
the limitation. KIAL would be entitled to exclusion of the period
during which it was bona fide prosecuting the remedy before the
High Court with due diligence. [Para 64][726-E-H; 727-A-C]
1.8 In the instant case, KIAL had approached the High Court
making a specific grievance, that NCLT had adopted a procedure
which was in breach of the principles of natural justice. It is
specifically mentioned in the writ petition, that though an alternate
remedy was available to it, it was approaching the High Court
since the issue with regard to functioning of NCLT also fell for
consideration. It is thus apparently clear, that KIAL was bona
fide prosecuting a remedy before the High Court in good faith
and with due diligence. In a given case, the High Court could
have exercised jurisdiction under Article 226 of the Constitution
inasmuch as, the grievance was regarding procedure followed by
NCLT to be in breach of principles of natural justice. That would
come within the limited area earmarked by this Court for exercise
of extraordinary jurisdiction under Article 226 despite availability
of an alternate remedy. Therefore, KIAL was entitled to extension
of the period during which it was bona fide prosecuting a
remedy before the High Court with
due diligence. [Paras 83,
85][735-A-D; 736-A]
Consolidated Engineering Enterprises vs. Principal
Secretary, Irrigation Department and others (2008) 7
SCC 169 : [2008] 5 SCR 1108; M.P. Steel Corporation
vs. Commissioner of Central Excise (2015) 7 SCC 58;
State of Goa vs. Western Builders (2006) 6 SCC 239 :
[2006] 3 Suppl. SCR 288; Embassy Property
Developments Pvt. Ltd. vs. State of Karnataka and
Others 2019 SCC Online 1542 – relied on.
Commissioner of Sales Tax, U.P. vs. Madan Lal Das &
Sons, Bareilly (1976) 4 SCC 464 : [1977] 1 SCR  683
– per incuriam. 
Union of India vs. Popular Construction Co. (2001) 8
SCC 470 : [2001] 3 Suppl.  SCR  619; Singh
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Enterprises vs. Commissioner of Central Excise,
Jamshedpur & Ors. (2008) 3 SCC 70 : [2007]
13 SCR 952; Chhattisgarh State Electricity Board vs.
Central Electricity Regulatory Commission & Ors.
(2010) 5 SCC 23 : [2010] 4 SCR 680; Neeraj Jhanji
vs. Commissioner of Customs & Central Excise (2015)
12 SCC 695; Ketan V. Parekh vs. Special Director,
Directorate of Enforcement & Anr. (2011) 15 SCC 30 :
[2011] 14 SCR 1204; Commissioner of Customs and
Central Excise vs. Hongo India Private Limited and
another (2009) 5 SCC 791; Bengal Chemists and
Druggists Association vs. Kalyan Chowdhury (2018) 3
SCC 41 : [2018] 2  SCR 1099 - distinguished.
Commissioner of Sales Tax. U.P., Lucknow vs. Parson
Tools and Plants, Kanpur (1975) 4 SCC 22: [1975] 3
SCR 743 – held distinguished.
Whirlpool Corporation vs. Registrar of Trade Marks,
Mumbai & Ors. (1998) 8 SCC 1 : [1998] 2 Suppl.  SCR 
359; Babu Ram Prakash Chandra Maheshwari vs.
Antarim Zilla Parishad Muzaffar Nagar [1969] 1 SCR
518; Nivedita Sharma vs. Cellular Operators Association
of India & Ors. (2011) 14 SCC 337; Bharat Bank Ltd.,
Delhi vs. Employees of the Bharat Bank Ltd., Delhi
[1950] SCR 459; Town Municipal Council, Athani vs.
Presiding Officer, Labour Courts, Hubli and others etc.
(1969) 1 SCC 873 : [1970] 1 SCR  51; Nityananda M.
Joshi and others vs. Life Insurance Corporation of India
and others (1969) 2 SCC 199: 1970 (1)  SCR 396;
Bhudan Singh and another vs. Nabi Bux and another
(1969) 2 SCC 481: [1970] 2  SCR
10; J. Kumaradasan
Nair and another vs. Iric Sohan and others (2009) 12
SCC 175: [2009] 3 SCR 238; Kerala State Electricity
Board, Trivandrum vs. T.P. Kunhaliumma (1976) 4 SCC
634 : [1977] 1 SCR  996; Officer on Special Duty (Land
Acquisition) and another vs. Shah Manilal Chandulal
and others (1996) 9 SCC 414: [1996] 2 SCR  366 -
referred to.
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2.1 KIAL had no choice than to accept the terms of the
contract. Paragraph 5(b) of the covering letter for submission of
resolution plan by KIAL is a part of a covering letter format,
which is provided in the Process Memorandum itself. The
covering letter is in Format I and the party desiring to participate
in the Resolution Plan Process has no other option, than to sign
the dotted lines. Hence, the parties cannot be said to have equal
bargaining power and the applicants have no other choice than to
sign on the documents prescribed in the format. Paragraph 5(b)
of the covering letter format, requires a party to undertake, that
it will accept all the decisions made by CoC, RP and/or the
Adjudicating Authority and that the decisions taken will be binding
on it. It also requires the applicant, to sign on the document
thereby, providing expressly waiving any and all claims with
respect to the Resolution Plan Process. In turn, it provides for a
party to agree to a stipulation, that even if RP or CoC acts in any
manner, which is not permissible in law, still the resolution
applicant would be bound by such a decision and shall waive any
or all its claims in respect of the Resolution Plan Process.
[Para 95][739-H; 740-A-D]
2.2 In the first place, RP and the resolution applicant cannot
be said to be the contracting parties having equal bargaining
power. Secondly, since RP functions under the I&B Code for
discharging the duties
bestowed upon him and assisting the
process for finalization of resolution plan for survival of the
Corporate Debtor, it cannot be said that it is a purely commercial
transaction between RP and the resolution applicant. There is no
reason, as to why the said principle should not be applicable when
RP and CoC are acting under the statutory provisions under the
Code. Thus, KIAL cannot be held to be bound by such
unconscionable clause in the letter, which is in a prescribed format.
[Paras 97, 99, 100][740-E-F; 741-B-D]
Halsbury’s Laws of England, Vol. 16(2), 4th Edn., Para
907, 1471 – referred to
2.3 For considering, as to whether a party has waived its
rights or not, it will be relevant to consider the conduct of a party.
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For establishing waiver, it will have to be established, that a party
expressly or by its conduct acted in a manner, which is inconsistent
with the continuance of its rights. However, the mere acts of
indulgence will not amount to waiver. A party claiming waiver
would also not be entitled to claim the benefit of waiver, unless it
has altered its position in reliance on the same. For applying the
principle of waiver, it will have to be established, that though a
party was aware about the relevant facts and the right to take an
objection, he has neglected to take such an objection. [Paras 104,
107][742-F-G; 743-E-F]
2.4 For constituting acquiescence or waiver it must be
established, that though a party knows the material facts and is
conscious of his legal rights in a given matter, but fails to assert
its rights at the earliest possible opportunity, it creates an effective
bar of waiver against him. Whereas, acquiescence would be a
conduct where a party is sitting by, when another is invading his
rights. The acquiescence must be such as to lead to the inference
of a licence sufficient to create a new right in the defendant. Waiver
is an intentional relinquishment of a right. It involves conscious
abandonment of an existing legal right, advantage, benefit, claim
or privilege. It is an agreement not to assert a right. There can
be no waiver unless the person who is said to have waived, is
fully informed as to his rights and with full knowledge about the
same,
he intentionally abandons them. [Para 112][747-E-G]
2.5 As per the invitation of EOI published on 9.7.2018, the
last date for submission of EOI was 8.8.2018. The first Form G
was also issued on 9.7.2018, according to which, the last date for
submission of resolution plan was 21.9.2018. KIAL had submitted
its EOI on 7.8.2018. First Process Memorandum was issued on
17.8.2018. However, since there was no response, four more Form
G were issued on various dates. The last of such Form G was
issued on 11.12.2018, according to which the last date for
submission of resolution plan was 8.1.2019. KIAL submitted its
resolution plan on 8.1.2019. Subsequently, Kalpraj submitted its
resolution plan on 27.1.2019. On KIAL coming to know about
the same, on 29.1.2019 itself, it had sent an email protesting to
RP against acceptance of belated resolution plan of Kalpraj. [Paras
116, 117][748-F-H; 749-A]
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2.6 It could be seen that immediately within a day of the
submission of the plan by Kalpraj, KIAL objected to the
acceptance of its plan after 8.1.2019, when no extension of time
for the same was notified. It is specifically stated, that the said
severely jeopardized its position and was against the spirit of the
Code, especially when KIALs resolution plan was opened
immediately and discussed at length with various stakeholders.
KIAL has therefore requested for sharing the requisite
information providing for extension of time for bid submission. It
is further stated, that in the event no such notification was issued,
all plans submitted after 8.1.2019 should be held to be invalid.
After the said email was addressed by KIAL to RP, it received
an email from RP on 30.1.2019. It is stated in the said email dated
30.1.2019, that subsequent to the resolution plan submitted on
8.1.2019, CoCs representative and RP had a detailed discussion
with its team on the changes required to be made in the resolution
plan. Vide the said email dated 30.1.2019, KIAL was requested
to submit the amended resolution plan by 3 p.m. on 1.2.2019. On
1.2.2019, left with no choice, KIAL submitted its revised
resolution plan. [Paras 118, 119][749-E-H; 750-A]
2.7 On 10.2.2019 KIAL sent another email. It was stated
therein that it has been quite sometime, that it had sought a
response from RP on his decision to accept another resolution
plan well
after the expiry of the deadline for submission of the
same. It was reiterated, that such an action, after opening of the
bids and having detailed discussions on the same was not only
prejudicial to its interest but against the spirit of the I&B Code.
It was reiterated, that the I&B Code, provides equal treatment
to all potential resolution applicants within the framework of law
and fixes personal responsibilities upon CoC members and RPs
in the event of instances of discrimination or departure from the
established law. [Para 121][750-D-F]
2.8 Perusal of the record would reveal, that RP had replied
to KIAL by email dated 11.2.2019. It was stated in the said email,
that his act of acceptance of resolution plans, submitted after the
due date, was under the overall supervision of CoC and as per
the opinion given by CoCs legal counsel and RPs legal counsel.
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It was also submitted, that this was in the spirit of value
maximisation of assets of the Corporate Debtor. Further, it is in
dispute, as to whether RP had again directed KIAL and Kalpraj
vide email dated 11.2.2019 to submit revised plan. It is asserted
on behalf of the KIAL, that such email was received by it, whereas
it is denied by RP. In any event, it is not in dispute, that both
KIAL and Kalpraj submitted their revised plans on 12.2.2019.
[Paras 122 - 123][750-F-H; 751-A]
2.9 On 13/14.2.2019, the resolution plan of Kalpraj was
accepted by CoC. On 18.2.2019, RP filed M.A. No.691/2019
before NCLT for approval of the resolution plan of Kalpraj. KIAL
filed its M.A. on 14.3.2019 before the Adjudicating Authority
objecting to the approval of resolution plan of Kalpraj. It could
thus, be clearly seen, that KIAL had raised its objection
immediately after the Kalpraj submitted its resolution plan. Not
only that, but, it had also reiterated its objection to the
participation of Kalpraj. Insofar as, submission of amended plans
is concerned, it had no other option than to submit its revised
plan. It is thus clear that, had KIAL not responded to the email
of RP and submitted its revised plan, it had to run the risk of
being out of fray. [Paras 124-126][751-A-C, E-F]
2.10 Taking into consideration the fact, that KIAL had
objected to participation of any other applicant submitting plan
after the due date as per the last Form G and also reiterated its
objection, it
cannot be held, that having participated by submitting
the revised plans, KIAL is estopped from challenging the process
on the ground of acquiescence and waiver. Merely because, the
revised plans are not submitted with the words “without
prejudice”, would not make any difference. [Para 132][753-A-B]
2.11 The conduct of the party is relevant for considering,
whether it can be held, that a case is made out of waiver or
acquiescence. None of the appellants have been in a position to
establish, that KIAL had given up/surrendered its rights to take
recourse to the legal remedies. In any case, the appellants had
also not been in a position to establish, that on account of any
such waiver or acquiescence any of the appellants had altered
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their position to their detriment. As such, it cannot be held, that
KIAL had waived or acquiesced its rights to challenge the decision
of RP or CoC. [Paras 132-134][753-C-E]
Central Inland Water Transport Corporation Limited
and another vs. Brojo Nath Ganguly and another (1986)
3 SCC 156 : [1986] 2 SCR 278; Vodafone International
Holdings BV vs. Union of India and another (2012) 6
SCC 613: [2012] 1 SCR 573 – relied on.
ITC Ltd. vs. Blue Coast Hotels Limited & Ors. (2018)
15 SCC 99 : [2018] 5 SCR 516; Tarapore & Company
vs. Cochin Shipyard Ltd., Cochin & Anr. (1984) 2 SCC
680: [1984] 3 SCR  118 - Distinguished
Assistant General Manager and others vs. Radhey
Shyam Pandey (2020) 6 SCC 438; Pioneer Urban Land
and Infrastructure Limited vs. Govindan Raghavan
(2019) 5 SCC 725 : [2019] 5 SCR 1169; Manak Lal
vs. Dr. Prem Chand 1957 SCR 575 = AIR 1957 SC
425; Krishna Bahadur vs. Purna Theatre and others
(2004) 8 SCC 229 : [2004] 3 Suppl.  SCR 833; State
of Punjab vs. Davinder Pal Singh Bhullar and others
(2011) 14 SCC 770 : [2011] 15 SCR 540; Galada power
and Telecommunication limited vs. United India
Insurance Company Limited and another (2016) 14
SCC 161: 2016 (4 )  SCR 69 – referred to.
3.1 For deciding key economic question in the bankruptcy
process, the only one correct forum for evaluating such
possibilities, and making a decision was, a creditors committee,
wherein all financial creditors have votes in proportion to the
magnitude of debt that they hold. The Bankruptcy Law Reforms
Committee-BLRC has observed, that laws in India in the past
have brought arms of the Government (legislature, executive or
judiciary) into the question of bankruptcy process. This has been
strictly avoided by the Committee and it has been provided, that
the decision with regard to appropriate disposition of a defaulting
firm, which is a business decision, should only be made by the
creditors. It has been observed, that the evaluation of proposals
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to keep the entity as a going concern, including decisions about
the sale of business or units, restructuring of debt, etc., are
required to be taken by the Committee of the Financial Creditors.
It has been provided, that the choice of the solution to keep the
entity as a going concern will be voted upon by CoC and there
are no constraints on the proposals that the resolution professional
can present to CoC. The requirements, that the resolution
professional needs to confirm to the Adjudicator, are: (i) that the
solution must explicitly require the repayment of any interim
finance and costs of the insolvency resolution process will be
paid in priority to other payments; (ii) that the plan must explicitly
include payment to all creditors not on the creditors committee,
within a reasonable period after the solution is implemented; and
lastly (iii) the plan should comply with existing laws governing
the actions of the entity while implementing the solutions.
[Para 138][760-B-G]
3.2 There should be freedom permitted to the overall
market, to propose solutions on keeping the entity as a going
concern. The details as to how the insolvency is to be resolved
or as to how the entity is to be revived, or the debt is to be
restructured will not be provided in the I&B Code but such a
decision will come from the deliberations of CoC in response to
the solutions proposed by the market. [Para 139][760-G-H;
761-A]
3.3 The appeal is a creature of statute and that the
statute
has not invested jurisdiction and authority either with NCLT or
NCLAT, to review the commercial decision exercised by CoC of
approving the resolution plan or rejecting the same. The limited
judicial review, which is available, can in no circumstance trespass
upon a business decision arrived at by the majority of CoC.
[Paras 149, 152][766-B-C, G-H]
3.4 The legislative scheme is unambiguous. The
commercial wisdom of CoC is not to be interfered with, excepting
the limited scope as provided under Sections 30 and 31 of the
I&B Code. [Para 155][768-A-B]
3.5 It was submitted that since there has been a material
irregularity in exercise of the powers by RP, NCLAT was justified
KALPRAJ DHARAMSHI v. KOTAK INVESTMENT ADVISORS LTD.
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in view of the provisions of clause (ii) of sub section (3) of Section
61 of the I&B Code to interfere with the exercise of power by
RP. However, it could be seen, that all actions of RP have the
seal of approval of CoC. No doubt, it was possible for RP to have
issued another Form G, in the event he found, that the proposals
received by it prior to the date specified in last Form G could not
be accepted. However, it has been the consistent stand of RP as
well as CoC, that all actions of RP, including acceptance of
resolution plans of Kalpraj after the due date, albeit before the
expiry of timeline specified by the Code for completion of the
process, have been consciously approved by CoC. The decision
of CoC is taken by a thumping majority of 84.36%. The only
creditor voted in favour of KIAL is Kotak Bank, holding company
of KIAL, having voting rights of 0.97%. In view of the paramount
importance given to the decision of CoC, which is to be taken on
the basis of commercial wisdom, NCLAT was not correct in law
in interfering with the commercial decision taken by CoC by a
thumping majority of 84.36%. [Para 156][768-B-F]
3.6 After the resolution plan of Kalpraj was approved by
NCLT on 28.11.2019, Kalpraj had begun implementing the
resolution plan. NCLAT had heard the appeals on 27.2.2020 and
reserved the same for orders. There was no stay granted by
NCLAT, while reserving the matters for orders. After a gap of
five
months, NCLAT passed the final order on 5.8.2020. Thus,
for a long period, there was no restraint on implementation of
the resolution plan of Kalpraj, which was duly approved by NCLT.
It is the case of Kalpraj, RP, CoC and Deutsche Bank, that during
the said period, various steps have been taken by Kalpraj by
spending a huge amount for implementation of the plan. No doubt,
this is sought to be disputed by KIAL. However, it is not
necessary to go into that aspect of the matter in light of the
conclusion, that NCLAT acted in excess of jurisdiction in
interfering with the conscious commercial decision of CoC.
[Para 157][868-F-H; 769-A]
3.7 In pursuance of the order dated 5.8.2020 passed by
NCLAT, CoC has approved the resolution plan of KIAL on
13.8.2020. However, since the decision of NCLAT dated 5.8.2020
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does not stand the scrutiny of law, it must follow, that the
subsequent approval of the resolution plan of KIAL by CoC
becomes non est in law. For, it was only to abide by the directions
of NCLAT. Nothing would turn on it. The decision of CoC dated
13/14.2.2019 is a decision, which has been taken in exercise of
its commercial wisdom. As such, the decision taken by CoC dated
13/14.2.2019, which is taken in accordance with its commercial
wisdom and which is duly approved by NCLT, will prevail. Further,
NCLAT was not justified in interfering with the stated decision
taken by CoC. [Para 158][769-B-D]
K. Sashidhar vs. Indian Overseas Bank & Ors. (2019)
12 SCC 150: [2019] 3 SCR 845; Committee of Creditors
of Essar Steel India Limited through Authorised
Signatory vs. Satish Kumar Gupta & Ors. (2019) SCC
Online SC 1478 – relied on.
Maharashtra Seamless Limited vs. Padmanabhan
Venkatesh and others (2020) 11 SCC 467; Arcelormittal
India Private Limited vs. Satish Kumar Gupta and others
(2019) 2 SCC 1 : [2018] 12 SCR 362 – referred to
4 The order passed by NCLAT dated 5.8.2020 is quashed
and set aside and the orders passed by NCLT dated 28.11.2019
are restored and maintained. Insofar as, the Civil Appeals arising
out of D.No. 24125 of 2020 filed by Fourth Dimension Solutions
Limited, since the appeal against the order of NCLT is still pending
before NCLAT, NCLAT is directed to decide the appeal as
expeditiously as possible, and in any case, within the stipulated
period. [Paras 159-160][769-D-G]
Innoventive Industries Ltd. vs. ICICI Bank & Anr. (2018)
1 SCC 407: [2017] 8  SCR 33; Kumar Dutta prop. K.D.
Trading vs. Simplex Infrastructure Ltd. 2019 SCC
Online NCLAT 575; Asha Goyal vs. Pharma Traders
Pvt. Ltd. 2019 SCC Online NCLAT 150; Radhika
Mehra vs. Vaayu Infrastructure LLP & Ors. 2020 SCC
Online NCLAT 532; Dhirendra Kumar vs. Randstand
India Pvt. Ltd. & Anr. 2019 SCC Online NCLAT 444;
Neeraj Jhanji vs. Commissioner of Customs & Central
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Excise (2015) 12 SCC 695; G.J. Fernandez vs. State of
Karnataka & Ors. (1990) 2 SCC 488: [1990] 1  SCR 
229; NTPC Ltd. (Simhadri Project) vs. Rajiv
Chakraborty] Civil Appeal No. 2798 of 2020; Union
of India & Ors. vs. West Coast Paper Mills Ltd. & Anr.
(2004) 3 SCC 458: [2004] 2 SCR 642; Binani
Industries Limited vs.Bank of Baroda & Anr. 2018 SCC
Online NCLAT 565 – referred to.  
Case law reference
[2017] 8 SCR 33  
referred to
Para 9
[1990] 1 SCR 229 
referred to
Para 20
[2004] 2 SCR 642  
referred to
Para 28
(2015) 7 SCC 58
relied on
Para 46
[1950] SCR 459
referred to
Para 46
[1970] 1 SCR 51 
referred to
Para 46
[1970] 1 SCR 396 
referred to
Para 46
[1977] 1 SCR 996 
referred to
Para 46
[1996] 2 SCR 366 
referred to
Para 46
[2008] 5 SCR 1108 
relied on
Para 46, 51
[1977] 1 SCR  683 
per incuriam
Para 48
[1970] 2 SCR 10  
referred to
Para 50
[2009] 3 SCR 238 
referred to
Para 50
[1975] 3 SCR 743
held distinguished
Para 53
[1969] 1 SCR 518
referred to
Para 59
[1998] 2 Suppl. SCR  359 referred to
Para 62
(2011) 14 SCC 337
referred to
Para 63
[2001] 3 Suppl. SCR 619 
distinguished
Para 66, 73
[2007] 13 SCR 952  
distinguished
Para 74
(2009) 5 SCC 791
distinguished
Para 75
[2010] 4 SCR 680
distinguished
Para 76
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D
E
F
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693
[2018] 2  SCR 1099 
distinguished
Para 77
(2015) 12 SCC 695
distinguished
Para 78
[2011] 14 SCR 1204 
distinguished
Para 81
[2006] 3 Suppl. SCR 288
relied on
Para 81
[1986] 2 SCR 278 
relied on
Para 95, 97,
100
(2020) 6 SCC 438
referred to
Para 96
[2019] 5 SCR 1169
referred to
Para 98
1957 SCR 575
referred to
Para 105
[2004] 3 Suppl. SCR 833 
referred to
Para 108
[2011] 15 SCR 540
referred to
Para 111
[2016] 4 SCR 69 
referred to
Para 113
[2018] 5 SCR 516  
distinguished
Para 127
[1984] 3 SCR 118 
distinguished
Para 128
[2012] 1 SCR 573  
relied on
Para 130
[2019 ] 3 SCR 845 
relied on
Para 136,
140, 145,
146, 148,
150
(2020) 11 SCC 467
referred to
Para 136,
153
[2018] 12 SCR 362
referred to
Para 141
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.2943-
2944 of 2020.
From the Judgment and Order dated 05.08.2020 of the National
Company Law Appellate Tribunal, New Delhi in Company Appeal (AT)
(Insolvency) Nos.344-345 of 2020.
With
Civil Appeal Nos.3138-3139 of 2020
Civil Appeal Nos. 2949-2950 of 2020.
Civil Appeal No. ……../2021 (Diary No.24125 of 2020)
KALPRAJ DHARAMSHI v. KOTAK INVESTMENT ADVISORS LTD.
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Mukul Rohatgi, Dr. Abhishek Manu Singhvi, Pinaki Mishra, C.A.
Sundaram, Gopal Sankar Narayanan, P.P. Chaudary, K.V. Viswanathan,
Neeraj Kishal Kaul, Shyam Divan, Sr. Advs., Ms. Ruby Singh Ahuja,
Ms. Kalpana Unadkat, Prateek Kumar, Ms. Tahira Karanjawala, Anupam
Prakash, Nidhiram Sharma, Ms. Raveena Rai, Utkarsh Maria, Anmol
Jassal, M/s Karanjawala & Co., David Rao, Sanjeet Purohit, M.S. Vishnu
Sankar, Atul Sharma, Sriram Parakkat, Ms. Athira G. Nair, Shrutanjaya
Bhardwaj, M/s Lawfic, Dheeraj Nair, Vishrutyi Sahni, Varghese Thomas,
Ms. Aditi Deshpande, Fatema Kachwalla, Jash Shah, Dheeraj Nair,
Gaurav Agrawal, Ms. Pooja Mahajan, Avinash Amarnath, Ms. Mahima
Singh, Ms. Avni Shrivastav, Ritesh Kumar, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
B.R. GAVAI, J.
1. Leave to file Civil Appeal in Diary No. 24125 of 2020 is granted.
2. All these appeals, assail the judgment and order of the National
Company Law Appellate Tribunal, New Delhi (hereinafter referred to
as “NCLAT”) dated 5.8.2020, passed in Company Appeal (AT)
(Insolvency) Nos. 344-345 of 2020.
3. By the said judgment and order dated 5.8.2020, NCLAT has
allowed the appeals filed by Kotak Investment Advisors Limited
(hereinafter referred to as “KIAL”), respondent No.1 herein, aggrieved
by two separate orders dated 28.11.2019 passed by National Company
Law Tribunal, Mumbai Bench (hereinafter referred to as “NCLT” or
“Adjudicating
Authority”) in M.A. No.1039 of 2019 and M.A. No. 691
of 2019. NCLAT has set aside the said orders passed in the said M.As.
M.A. No.1039 of 2019 was filed by KIAL objecting to grant of approval
to the resolution plan submitted by Kalpraj Dharamshi and Rekha
Jhunjhunwala, a consortium, (hereinafter referred to as “Kalpraj”), which
is appellant in Civil Appeal Nos. 2943-2944 of 2020. NCLT has rejected
the said M.A. Whereas, M.A. No. 691 of 2019 was filed by the Resolution
Professional of Ricoh India Limited (hereinafter referred to as “the
Corporate Debtor”) for grant of approval to the Resolution Plan submitted
by Kalpraj. NCLT has allowed the said M.A. and approved the resolution
plan submitted by Kalpraj.
4. The facts in brief, giving rise to the present appeals are as
under:
The Corporate Debtor filed an application on 29.1.2018 before
NCLT under Section 10 of the Insolvency and Bankruptcy Code, 2016
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(hereinafter referred to as “I&B Code”) for initiation of Corporate
Insolvency Resolution Process (hereinafter referred to as “CIRP”) of
itself vide Company Petition (IB) No. 156/MB/2018. NCLT vide order
dated 14.5.2018, admitted the Petition and directed the moratorium to
commence as prescribed under Section 14 of the I&B Code and directed
certain statutory steps to be taken as a consequence thereof. Vide the
said order dated 14.5.2018, NCLT also appointed Mr. Krishna Chamadia
as Interim Resolution Professional to carry out the functions as prescribed
under the provisions of the I&B Code. The said Mr. Krishna Chamadia
was subsequently confirmed as Resolution Professional (hereinafter
referred to as ‘RP’) by the Committee of Creditors (hereinafter referred
to as “CoC”) on 15.6.2018.
RP vide notification dated 9.7.2018 invited expression of interest
(hereinafter referred to as “EOI”) to submit a resolution plan from
interested resolution applicants, who fulfilled the minimum conditions
stipulated in the said document (EOI). As per the said EOI, if any
proposed applicant had any queries or clarifications, it was required to
write to RP on or before 31.7.2018. The EOI was required to be submitted
via email on the email address of RP or via post at the address mentioned
in the said invitation on or before 8.8.2018.
On the said date i.e. 9.7.2018, analogously, the first Form ‘G’ also
came to be notified. Vide the said Form ‘G’, the last date prescribed for
submission of Resolution Plan was on or before 21.9.2018. The second
Form ‘G’ came to be issued on 24.8.2018, which required the Resolution
Plans to be submitted on or before 28.9.2018. The third Form ‘G’ came
to be issued on 28.9.2018, which required the Resolution Plans to be
submitted on or before 25.10.2018. The fourth Form ‘G’ came to be
issued on 9.11.2018, which required the Resolution Plans to be submitted
on or before 13.12.2018. The fifth and the last Form ‘G’ came to be
issued on 11.12.2018, which required the Resolution Plans to be submitted
on or before 8.1.2019.
KIAL, the appellant before NCLAT (respondent No.1 herein)
and one Karvy Data Management Systems Limited submitted their
Resolution Plans on the last date as stipulated in the last and fifth Form
‘G’ i.e. on 8.1.2019.
One another applicant i.e. WeP Solutions Ltd. submitted its
Resolution Plan jointly with one Sattva Real Estate Private Limited
(hereinafter referred to as “WeP”) on 13.1.2019.
KALPRAJ DHARAMSHI v. KOTAK INVESTMENT ADVISORS LTD.
[B.R. GAVAI, J. ]
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The appellant in Civil Appeal Nos. 2943-2944 of 2020 i.e. Kalpraj
submitted its EOI and Resolution Plan to RP on 27.1.2019.
On 29.1.2019, KIAL sent an email to RP, raising its objection
permitting Kalpraj to submit Resolution Plan, beyond the prescribed time
limit. In the meeting of CoC held on 30.1.2019, the Resolution Plan of
Kalpraj was placed before CoC. In the said meeting, CoC resolved to
direct all the applicants to submit revised plans. Accordingly, an email
was sent to KIAL directing it to submit its revised plan. Accordingly,
KIAL submitted its revised plan on 1.2.2019. By another email dated
10.2.2019, KIAL once again objected to consideration of the plan
submitted by Kalpraj.
It is the case of KIAL, that it had received an email on 11.2.2019
from RP, justifying the consideration of plan submitted by Kalpraj and
asking it to submit a second revised plan. However, this is disputed by
RP. However, it is not in dispute, that on 12.2.2019, revised plans were
submitted by KIAL as well as Kalpraj. In the meeting of CoC held on
13/14.2.2019, plan of Kalpraj came to be approved by a majority.
After CoC had approved the plan of Kalpraj, RP applied for
approval of the plan before NCLT on 18.2.2019 vide M.A. No. 691 of
2019 in Company Petition (IB) No. 156/MB/2018. After coming to know
about RP applying for approval of the plan of Kalpraj, KIAL filed an
application on 14.3.2019 being M.A. No.1039 of 2019, objecting to
the
plan of Kalpraj. The objection was on the ground, that RP was not justified
in permitting Kalpraj to submit a plan beyond the date prescribed in
Form ‘G’ and that the decision of CoC to approve the plan submitted by
Kalpraj was not in accordance with the I&B Code. Vide order dated
28.11.2019, NCLT allowed M.A. No.691 of 2019 and approved the
Resolution Plan of Kalpraj and by a separate order passed on the same
day, NCLT rejected M.A. No.1039 of 2019, which was filed by KIAL
objecting to the decision of CoC approving the plan submitted by Kalpraj.
Contending, that the procedure followed by NCLT was in breach
of the principles of natural justice, KIAL filed a writ petition before the
Bombay High Court being Writ Petition (L) No.3621 of 2019, challenging
the aforesaid two orders passed by NCLT. The High Court dismissed
the Writ Petition (L) No.3621 of 2019 filed by KIAL by judgment and
order dated 28.1.2020, on the ground, that KIAL had an alternate and
efficacious remedy of filing an appeal before NCLAT.
KIAL thereafter filed appeals before NCLAT on 18.2.2020. The
appeals were opposed by Kalpraj and also by RP on the ground, that the
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appeals were filed beyond the limitation period prescribed under the
I&B Code and as such, ought not to be entertained. However, vide
order dated 5.8.2020, NCLAT did not find favour with the objections
raised by the respondents before it, with regard to limitation and further
found, that the procedure adopted by RP and CoC was in breach of the
provisions of the I&B Code and therefore, allowed the appeals filed by
KIAL.
Vide the said order, NCLAT, while setting aside both the orders
dated 28.11.2019, passed by NCLT, also directed CoC to take a decision
afresh, in the light of the directions issued in its order, regarding
consideration of the Resolution Plans, which were submitted prior to the
prescribed date as per last Form ‘G’. This was directed to be done in a
period of ten days from the date of the said order. NCLAT further
directed, that if no decision was communicated to the Adjudicating
Authority i.e. NCLT and since the timeline for completion of CIRP had
already expired, the Adjudicating Authority was to pass an order for
liquidation of the corporate debtor.
5. Being aggrieved by the aforesaid order passed by NCLAT,
four appeals have been filed before this Court, the details thereof are as
under:
Case No. & 
Cause title 
Cause title 
Particulars of the 
appellant 
C.A. No.2943-
2944/2020 
Kalpraj Dharamshi & anr. Vs. 
Kotak Investment Advisors 
Ltd. & Anr. 
Successful Resolution 
Applicant 
C.A. No.3138-
3139 of 2020 
Deutsche Bank AG vs.  
Kotak
Investment Advisors 
Ltd. & Ors. 
Financial Creditor  
C.A. No.2949-
2950 of 2020 
Krishna Chamadia (Erstwhile 
Resolution Profession of Ricoh 
India Ltd.)  
Vs.  
Kotak Investment Advisors 
Ltd. & Ors. 
Erstwhile resolution 
professional  
C.A. 
D.No.24125 of 
2020 
Fourth Dimension Solutions 
Ltd.  
Vs.  
Krishna Chamadia & Ors. 
Claiming to be Largest 
operational creditors  
KALPRAJ DHARAMSHI v. KOTAK INVESTMENT ADVISORS LTD.
[B.R. GAVAI, J. ]
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6. We have heard Shri Mukul Rohatgi, Dr. Abhishek Manu Singhvi
and Shri Pinaki Mishra, learned Senior Counsel appearing for Kalpraj,
Shri K.V. Viswanathan, learned Senior Counsel appearing for Deutsche
Bank A.G. and CoC, Shri C.A. Sundaram, Shri Gopal Sankar Narayanan
and Shri P.P. Chaudary, learned Senior Counsel appearing for Fourth
Dimension Solutions Limited, Shri Shyam Divan, learned Senior Counsel
appearing for RP and Shri Neeraj Kishan Kaul, learned Senior Counsel
appearing for KIAL.
SUBMISSIONS OF SHRI MUKUL ROHATGI, LEARNED
SENIOR COUNSEL APPEARING ON BEHALF OF KALPRAJ
7. Shri Mukul Rohatgi, learned Senior Counsel submitted, that
though four Form ‘G’ were issued by RP inviting the Resolution Plans
from the prospective resolution applicants, no plans were received from
any of the prospective resolution applicants. He submitted, that in
pursuance to the last and fifth Form ‘G’ published on 11.12.2018, only
two Resolution Plans were received, that too, on the last date i.e.
8.1.2019. He submitted, that in the meantime, Kalpraj submitted its plan
on 27.1.2019. He submitted, that in the meeting of CoC held on 30.1.2019,
in order to achieve the object of maximization, all the applicants were
asked to submit their revised resolution plans. He submitted, that KIAL
without demur, submitted its revised plans not only once but twice. It is
therefore submitted, that having submitted its revised plans twice, KIAL
is now
estopped from challenging the acceptance of the plan of Kalpraj.
It is submitted, that in the meeting of CoC held on 13/14.2.2019, the
plans came to be considered by CoC and CoC by the whopping majority
of 84.36% voting rights approved the plan of Kalpraj. He submitted, that
only one creditor i.e. Kotak Mahindra Bank Limited (hereinafter referred
to as “Kotak Bank”), which is a holding company of KIAL, having voting
rights of 0.97%, voted in favour of KIAL.
8. Relying on the judgment of this Court in the case of K.
Sashidhar vs. Indian Overseas Bank & Ors.1, Shri Rohatgi submitted,
the opinion on the subject matter expressed by the creditors after due
deliberation in CoC meeting through voting, which decision is taken as
per the commercial wisdom, is not justiciable before the Adjudicating
Authority. He also relied on the judgment of this Court in the case of
Committee of Creditors of Essar Steel India Limited through
Authorised Signatory vs. Satish Kumar Gupta & Ors.2
1 (2019) 12 SCC 150
2 (2019) SCC Online SC 1478
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9. Shri Rohatgi further submitted, that as held by this Court in
Innoventive Industries Ltd. vs. ICICI Bank & Anr.3, I&B Code is a
complete code in itself. He submitted, that Section 61(2) of the I&B
Code provides, that the decision of the Adjudicating Authority (i.e. NCLT)
may be challenged before NCLAT within 30 days. He submitted, that
an appeal would be tenable within a further period of 15 days, only when
NCLAT comes to a satisfaction, that there was a sufficient cause for
not filing the appeal within a period of 30 days. He submitted, that since
the I&B Code is a complete Code, neither Section 5 nor Section 14 of
the Limitation Act, 1963 (hereinafter referred to as “the Limitation Act”)
would be applicable. He submitted, that the judgment of NCLT was
delivered on 28.11.2019; certified copies of the same were made available
to KIAL on 18.12.2019; and appeals came to be filed on 18.2.2020. He
submitted, even if KIAL was given the benefit of the period of 20 days
for obtaining the certified copies, still the appeals ought to have been
filed on 65th day from the order of NCLT. It would be somewhere on 1st/
2nd February, 2020. However, the appeals were filed on 18.2.2020. He
submitted, that the litigant like KIAL, which has a team of legal experts
at its disposal cannot be heard to say, that they were not aware of the
alternate remedy and had bona fide filed the writ petition before the
High Court. He submitted, that KIAL is not entitled to the benefit
of the
exclusion of period between 11.12.2019 i.e. the date of filing of the writ
petition and 28.1.2020 i.e. the date of dismissal of the writ petition by the
High Court. He submitted, that provisions of Section 14 of the Limitation
Act would not at all be applicable and that NCLAT has totally erred in
law, in entertaining the appeals which were ex facie beyond limitation.
10. Shri Rohatgi further submitted, that NCLT has approved the
plan on 28.11.2019. He submitted, that though appeals were filed by
KIAL, there was no stay on the implementation of the resolution plan by
Kalpraj till the impugned order was passed by NCLAT on 5.8.2020,
whereunder, Kalpraj has taken various steps for implementation of the
Resolution Plan submitted by it. He submitted, that Kalpraj has expended
a total amount of Rs.300 crore (approx.) in the following manner:
“i.
On 02.12.2019, a Public Announcement in respect of
delisting of shares and exit offer to the public shareholders
of the Corporate Debtor.
3 (2018) 1 SCC 407
KALPRAJ DHARAMSHI v. KOTAK INVESTMENT ADVISORS LTD.
[B.R. GAVAI, J. ]
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ii.
On 13.12.2019, Rs.8,87,01,150/- (Rupees Eight Crores
Eighty-Seven Lakh One Thousand One Hundred and Fifty
only) was paid to 668 shareholders in exchange of their
shares.
iii.
On 14.12.2019, a Post-offer public announcement was
issued by the Appellants recording inter alia that the said
consideration has been paid to public shareholders.
iv.
On 20.12.2019, BSE issued a notice in respect of
discontinuation of trading and delisting of equity shares of
the Corporate Debtor.
v.
On 23.12.2019, debentures worth Rs.21 crores were issued
by the Corporate Debtor to Appellants.
vi.
On 27.12.2019, the share capital of the Company increased
to INR. 100,00,00,000/- (Rupees One Hundred Crores only).
vii.
Minosha Digital Solutions Pvt. Ltd. merged with the
Corporate Debtor with effect from 28.11.2019.
viii.
On 27.12.2019, the Appellants replaced the Bank Guarantee
issued by Deutsche Bank for INR 136,66,71,090/- (Rupees
One Hundred Thirty-Six Crores Sixty-Six Lakh Seventy-
One Thousand and Ninety Only).
ix.
On 30.12.2019, the CIRP costs amounting to
INR.2,65,68,000/- (Rupees Two Crores Sixty-Five Lakh
Sixty-Eight Thousand only) were paid by the Appellants.
x.
On 01.01.2020, the Appellants have made payment of INR
19,54,43,411/- (Rupees Nineteen Crores Fifty-Four Lakh
Forty-Three Thousand Four Hundred and Eleven) to non-
related party operational creditors of the Corporate Debtor.
xi.
From 01.01.2020 to 03.01.2020, the Appellants
have made
Equity infusion of INR 3 crores and an Equity infusion of
INR 29 Crores in Company.
xii.
On 23.01.2020, Appellants made payments to Ricoh
Company Limited and NRG Group Limited (minority
shareholder) for the transfer of shares to Appellants.
xiii.
On 31.01.2020, the Board of directors of the Corporate
Debtor was reconstituted and the Appellants became the
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owners and stepped into the management and control of
corporate debtor. It is no more a subsidiary of Ricoh Japan.
xiv.
The Appellants are shareholders of the Corporate Debtor
which is known by its new name Minosha India Limited.
xv.
On 03.02.2020, the RP (who was the Monitoring Agent of
the Monitoring Committee) issued a communication
recording that the approved Resolution Plan has been
implemented.
xvi.
As on 31.07.2020, a total of 21,90,958 no. of shares held by
809 shareholders have been tendered pursuant to the exit
offer for a sum total of Rs.10,95,47,900/-. The said exit
offer is subsisting till December 2020, in accordance with
the applicable SEBI rules and regulations.
xvii.
Registrar of Companies has only noted and issued a
certificate of the change in name of the Corporate Debtor
from Ricoh India Limited to Minosha India Limited.”
11. Shri Rohatgi submitted, that NCLAT has grossly erred in holding,
that the order passed by NCLT was in breach of the principles of natural
justice on the premise, that the application of KIAL was heard by a
single Member, whereas the decision was signed by two Members. He
submitted, that perusal of the record would reveal, that though M.A.
No.1039 of 2019 i.e. objection of KIAL to the approval of plan of Kalpraj,
was initially listed before the learned single Member, thereafter the
proceedings would itself show, that the said application was listed before
two learned Members on various dates along with main
application i.e.
M.A. No.691 of 2019. He submitted, that the counsels for KIAL have
participated in the said proceedings before the Bench of two Members
without demur. He submitted, that in any case, both, the application filed
by KIAL as well as the main application filed by RP, were required to be
decided together inasmuch as, the issues were interconnected and
therefore, they are rightly decided by the orders passed on the same
day. He therefore submitted, that the finding of NCLAT with regard to
violation of the principles of natural justice is without any merit.
12. Shri Rohatgi therefore submitted, that the appeals deserve to
be allowed, the order of NCLAT be set aside and that of NCLT be
restored.
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SUBMISSIONS BY DR. ABHISHEK MANU SINGHVI,
LEARNED SENIOR COUNSEL APPEARING FOR KALPRAJ
13. Dr. Abhishek Manu Singhvi, learned Senior Counsel also
appeared on behalf of Kalpraj, which is also respondent in the other
appeals. Dr. Singhvi submitted, that KIAL, in the covering letter along
with its Resolution Plan dated 8.1.2019, has unequivocally undertaken to
waive any and all claims in respect of the Resolution Plan Process. He
submitted, that the phrase ‘Resolution Plan Process’ is defined in clause
1.0 of the Process Memorandum which means, “the process set out in
this Process Memorandum for submission, evaluation and selection of
Resolution Plan and activities in relation or incidental thereto.” He
submitted, that in view of unconditional and irrevocable acceptance of
the terms of the Process Memorandum and having voluntarily and
expressly waived all claims with respect to the Resolution Plan Process,
it is not permissible for KIAL to challenge the decision of CoC approving
the Resolution Plan of Kalpraj. He submitted, that clause 10.4 of the
Process Memorandum itself provides, that RP was at liberty to receive
any Resolution Plan, at any stage of the Resolution Plan Process and
examine such Resolution Plan with the approval of CoC. Learned Senior
Counsel submitted, that having chosen to revise its Resolution Plan and
submit the same on 12.2.2019 in competition with Kalpraj, KIAL has
clearly acquiesced to the
consideration of the Resolution Plan of Kalpraj
by RP and CoC, even after the prescribed date of 8.1.2019 and has
waived all objections to the consideration of such Resolution Plan. He
submitted, that even the holding company of KIAL i.e. Kotak Bank of
which KIAL is a 100% subsidiary also agreed with CoC counsel’s view,
that the Resolution Plan of Kalpraj can be considered.
14. Dr. Singhvi submitted, that the conduct of KIAL is totally
indefensible. He submitted, that it amounts to taking chances in the process
and after having failed there, then to challenge the process. He submitted,
that KIAL had submitted its revised plans after knowing, that it was
competing with Kalpraj, and only after it was not successful in the process
has chosen to challenge the same. He submitted, that the revised
Resolution Plan submitted by KIAL does not state, that it is without
prejudice to its contention, that the Resolution Plans submitted after
8.1.2019 ought not to have been considered by RP and CoC. He
submitted, that even if such words were used they would not be significant.
He relied on the judgment of this Court in the case of ITC Ltd. Vs. Blue
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Coast Hotels Limited & Ors.4 and Tarapore & Company vs. Cochin
Shipyard Ltd., Cochin & Anr.5, in this regard.
15. Dr. Singhvi further submitted, that Section 238 of the I&B
Code provides, that the provisions of the Code shall have effect,
notwithstanding anything inconsistent therewith contained in any other
law for the time being in force. He therefore submitted, that the provisions
as contained in Section 61(2) of the I&B Code, which provides, that an
appeal has to be filed within 30 days with a further enhanced period of
15 days, when NCLAT is satisfied, that a sufficient cause existed for
not filing the appeal within 30 days, has to be strictly construed. He
relied on the judgment of NCLAT in the case of Kumar Dutta prop.
K.D. Trading vs. Simplex Infrastructure Ltd.6 and Asha Goyal vs.
Pharma Traders Pvt. Ltd.7 in that regard.
16. Dr. Singhvi further submitted, that this Court in a catena of
cases has held, that when under special statutes there is a provision for
appeal and a self-contained provision for limitation, no extension would
be possible beyond the period of time so stipulated. He relied on the
following judgments of this Court in this regard.
(i)
Union of India vs. Popular Construction Co.8,
(ii)
Singh Enterprises vs. Commissioner of Central Excise,
Jamshedpur & Ors.9, and
(iii)
Chhattisgarh State Electricity Board vs. Central
Electricity Regulatory Commission & Ors.10
17. Dr. Singhvi further submitted, that NCLAT in two cases in
Radhika
Mehra vs. Vaayu Infrastructure LLP & Ors.11 and
Dhirendra Kumar vs. Randstand India Pvt. Ltd. & Anr.12 has held,
that the provisions of Section 14 of the Limitation Act cannot be made
applicable to the appeal preferred under Section 67 of the I&B Code.
4 (2018) 15 SCC 99
5 (1984) 2 SCC 680 (PARA 33)
6 2019 SCC Online NCLAT 575
7 2019 SCC Online NCLAT 150
8 (2001) 8 SCC 470
9 (2008) 3 SCC 70
10 (2010) 5 SCC 23
11 2020 SCC Online NCLAT 532
12 2019 SCC Online NCLAT 444
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18. Dr. Singhvi submitted, that in any case, it cannot be said, that
filing of the writ petition was a bona fide act of KIAL. He submitted,
that KIAL, which was armed with a battery of legal counsel, was very
well aware, that it had an alternate remedy of filing an appeal before
NCLAT and therefore, was not entitled to take an umbrella of Section
14 of the Limitation Act. In this regard, he relied on the judgment of this
Court in the case of Neeraj Jhanji vs. Commissioner of Customs &
Central Excise13.
19. Dr. Singhvi also reiterated the submissions made on behalf of
Kalpraj by Shri Mukul Rohatgi, learned Senior Counsel to the effect,
that much water has flown after the Resolution Plan was approved by
NCLT and also highlighted the various steps taken by Kalpraj for
implementation of the Resolution Plan.
SUBMISSION OF SHRI K.V. VISWANATHAN, LEARNED
SENIOR COUNSEL APPEARING ON BEHALF OF DEUTSCHE
BANK A.G. AND CoC.
20. Shri K.V. Viswanathan, learned Senior Counsel appearing on
behalf of Deutsche Bank, which is appellant in one of the appeals and
CoC, which is respondent in some of the appeals submitted, that the
order passed by NCLAT was not sustainable inasmuch as, CoC was not
made a party before NCLAT. He submitted, that CoC had acted bona
fide only with a view of achieving maximization, by permitting Kalpraj
to participate. He submitted, that CoC had approved the Resolution Plan
submitted by Kalpraj by a thumping
majority of 84.36%. He submitted,
that the commercial wisdom of CoC is not open to judicial scrutiny by
the Adjudicating Authority, unless it falls within the statutory parameters
and as such, NCLT has rightly rejected the objection of KIAL and
NCLAT has erred in interfering with the same. He submitted, that no
prejudice is caused to KIAL on account of deviation of the procedure, if
any. In this regard, he relied on the judgment of this Court in the case of
G.J. Fernandez vs. State of Karnataka & Ors.14.
SUBMISSION OF SHRI SHYAM DIVAN, LEARNED
SENIOR COUNSEL APPEARING FOR RP
21. Shri Shyam Divan, learned Senior Counsel appearing on behalf
of RP submitted, that RP had acted bona fide in order to fetch the
maximum benefit to the Company. He submitted, that even after the
13 (2015) 12 SCC 695
14 (1990) 2 SCC 488
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prescribed last date, in view of clause 10.4 of the Process Memorandum,
RP was entitled to consider the plans received subsequently with the
approval of CoC. He submitted, that RP therefore had bona fide accepted
the plan of Kalpraj and not only that but had also given an opportunity to
KIAL to submit its revised plans, so as to compete with Kalpraj. Shri
Divan also advanced the arguments on similar lines as were advanced
by the other counsel on the grounds of limitation, acquiescence, etc.
SUBMISSION OF SHRI C.A. SUNDARAM, LEARNED
SENIOR COUNSEL APPEARING FOR FOURTH DIMENSION
SOLUTIONS LIMITED
22. Shri C.A. Sundaram, learned Senior Counsel appearing for
Fourth Dimension Solutions Limited, appellant in Civil Appeal D.No.24125
of 2020, which claims to have the highest amount recoverable from the
Corporate Debtor submitted, that the said appellant is not concerned
with the dispute between the parties, which is the subject matter of
consideration in the present appeals. It is further contended, that the
appellants’ dues are subject matter of pending arbitration proceeding
between the Corporate Debtor and the appellants and is yet to attain
finality, so as to liquidate the dues. It is aggrieved by the direction given
in paragraph 39 by NCLT in its order dated 28.11.2019 in M.A. No.691
of 2019. The learned Senior Counsel submitted, that by the said direction
it is directed, that the Resolution Applicant who stepped into the shoes of
Corporate Debtor subsequent
to the approval of the Resolution Plan by
it, shall not be held responsible for any outstanding statutory dues and
other claims for the period before commencement of CIRP. In the
submission of Shri Sundaram, this direction is prejudicial to the appellant,
which is the largest operational creditor entitled to recover an amount of
551 crores (approx..) from the Corporate Debtor. It is also contended,
that the claim of the appellant – Fourth Dimension, though has been
shown in the information memorandum by RP, it has not been considered
by CoC or any of the applicants in their resolution plan. He relied on the
judgment/order dated 16.11.2020 passed by this Court in Civil Appeal
No. 2798 of 2020 [NTPC Ltd. (Simhadri Project) vs. Rajiv
Chakraborty]
SUBMISSION OF SHRI NEERAJ KISHAN KAUL,
LEARNED SENIOR COUNSEL APPEARING FOR KIAL
23. Shri Neeraj Kishan Kaul, learned Senior Counsel appearing
on behalf of KIAL, while replying to the arguments advanced on behalf
of the appellants made manifold submissions.
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24. In reply to the submission on behalf of the appellants, that the
appeals filed by KIAL before NCLAT being barred by limitation, the
learned Senior Counsel submitted, that the arguments advanced were
not correct in law and NCLAT has rightly held the appeals to be within
limitation. He submitted, that though non-exercise of jurisdiction by the
High Court under Article 226 of the Constitution, in case of availability
of alternate remedy is the normal practice, the same is a rule of self-
restraint and not hard and fast rule. It is submitted, that the High Court
has wide jurisdiction under Article 226 of the Constitution and in a given
case it can entertain a petition under Article 226 in spite of the availability
of an alternate and efficacious remedy. He submitted, that this Court
itself in a catena of cases has carved out categories wherein, the High
Court is entitled to exercise its jurisdiction under Article 226 in spite of
the availability of alternate remedy. He submitted, that one such category
is where the proceedings challenged before the High Court are proceeded
in breach of principles of natural justice. The learned Senior Counsel
has relied on the following judgments of this Court in support of this
proposition.
(i)
Whirlpool Corporation vs. Registrar of Trade Marks,
Mumbai & Ors.15,
(ii)
Babu Ram Prakash Chandra Maheshwari vs. Antarim
Zilla Parishad Muzaffar Nagar16; and
(iii)
Nivedita Sharma vs.
Cellular Operators Association of
India & Ors.17
25. Shri Kaul submitted, that perusal of the record would reveal,
that immediately after the filing of application by RP before NCLT for
approval of Resolution Plans submitted by Kalpraj, KIAL had filed an
application objecting thereto being M.A. No.1039 of 2019. He submitted,
that perusal of the order-sheet of NCLT dated 3.7.2019 would reveal,
that the application filed by KIAL and one another application being
M.A. No.2023 of 2019 were heard by the learned single Member and
reserved for orders. He submitted, that insofar as M.A. No.691 of 2019
is concerned, the order dated 3.7.2019 would show, that the said
application was directed to be kept on 23.7.2019 at 2.30 p.m. along with
15 (1998) 8 SCC 1
16 (1969) 1 SCR 518
17 (2011) 14 SCC 337
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other applications for consideration of resolution plan on its commercial
aspect. The other matters were directed to be kept for hearing on
15.7.2019. It is further submitted, that when M.A. No.691 of 2019 was
listed on 23.7.2019, it was directed to be heard on 7.8.2019 at 2.30 p.m.
On 7.8.2019, M.A. No. 691 of 2019 was listed, for the first time, before
the Bench consisting of two Members and on that date the matter came
to be adjourned to 26.8.2019. Again on 26.8.2019, the matter came up
before the Division Bench and the Division Bench directed the same to
be kept on 6.9.2019. On 6.9.2019, the Division Bench adjourned the
matter to 17.9.2019 at 2.30 p.m. Again on 17.9.2019, the matter came
up before the Division Bench which directed it to be adjourned to
19.9.2019. Finally, on 19.9.2019, M.A. No.691 of 2019 was heard on
Resolution Plan and reserved for orders. Learned counsel therefore
submitted, that it is clear from the record, that M.A. No.1039 of 2019
filed by KIAL, was heard on 3.7.2019 by the learned single Member
and reserved for orders. However, M.A. No. 691 of 2019 was heard by
the Division Bench on 19.9.2019. Learned counsel therefore submitted,
that the orders in M.A. No. 1039 of 2019 could have been passed only
by the learned single Member. However, by two orders passed on even
date i.e. 28.11.2019, the Division Bench rejected the application of KIAL
and allowed the application filed by RP thereby, approving the Resolution
Plan submitted by
Kalpraj.
26. Learned Senior Counsel submitted, that in this background
KIAL was justified in invoking the jurisdiction of the High Court under
Article 226 of the Constitution inasmuch as, the proceedings conducted
by NCLT were totally in breach of the principles of natural justice, as
the matter was heard by a single Member whereas, the orders were
passed by the Division Bench. Learned counsel submitted, that the High
Court while dismissing the writ petition and relegating KIAL to alternate
remedy available in law has passed an elaborate order. Learned Senior
Counsel therefore submitted, that it does not lie in the mouth of the
appellants, that KIAL had not approached the High Court bona fide.
Learned Senior Counsel submitted, that in view of various judgments
delivered by this Court, the High Court could have entertained a petition
under Article 226, when the proceedings were conducted in breach of
the principles of natural justice.
27. Shri Kaul, learned Senior Counsel therefore submitted, that
NCLAT was right in law in giving the benefit of the period for which
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KIAL was bona fide prosecuting its writ petition before the Bombay
High Court. Learned Senior Counsel submitted, that if that period is
considered, the appeals filed by KIAL are very well within the limitation.
28. Learned Senior Counsel submitted, that the purpose behind
Article 14 of the Limitation Act is to advance justice and not to halt
justice. He submitted, that Section 14 enables a party to get the benefit
of the period for which it was bona fide prosecuting the remedy before
a wrong forum. Learned counsel submitted, that a liberal approach is
required to be given to the provisions of Article 14. Learned counsel
relied on the judgments of this Court in the case of Ketan V. Parekh vs.
Special Director, Directorate of Enforcement & Anr.18, M.P. Steel
Corporation vs. Commissioner of Central Excise19 and Union of India
& Ors. vs. West Coast Paper Mills Ltd. & Anr.20 in this regard.
29. Insofar as the arguments of the appellants with regard to
acquiescence and waiver are concerned, learned Senior Counsel
submitted, that, at the earliest opportunity, KIAL has objected to Kalpraj
submitting its Resolution Plan. He submitted, that on KIAL coming to
know, that the Resolution Plan of Kalpraj was accepted beyond 8.1.2019,
KIAL objected to it vide email dated 29.1.2019 addressed to RP. He
submitted, that RP had replied to its email on 30.1.2019 and requested to
submit amended Resolution Plan by 3.00 p.m. on 1.2.2019. He
submitted,
that in the said email it is also mentioned, that “CoC reserves the rights
to not consider your plan, if received after the said timeline”. He submitted,
that accordingly, KIAL had no other option but to submit its revised plan.
30. Learned Senior Counsel submitted, that even after submission
of the revised plan, KIAL did not hear anything from RP and therefore
vide email dated 10.2.2019, addressed to RP, it again raised its objection.
The said email was replied to by RP on 11.2.2019 wherein, RP stated,
that the resolution plans submitted after the due date also could be
considered, in the spirit of value maximisation of assets of the corporate
debtor. He submitted, that again vide communication dated 11.2.2019,
KIAL was required to submit a revised bid, which was submitted by it
on 12.2.2019. Learned counsel therefore submitted, that it is clear from
the record, that KIAL had objected to the participation of Kalpraj at the
earliest possible opportunity i.e. on 29.1.2019. Not only that, thereafter
18 (2011) 15 SCC 30
19  (2015) 7 SCC 58
20 (2004) 3 SCC 458
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KIAL continued to object to the participation of Kalpraj. Revised plans
were submitted by KIAL under compulsion inasmuch as, if it would not
have submitted its revised plans, on that ground alone it had to face the
risk of being ousted from consideration. It is therefore submitted, that
the contention, that KIAL has acquiesced to the participation of Kalpraj
and was therefore estopped from challenging its participation is without
any substance. Learned counsel submitted, that the contention, that KIAL
was taking chances is also totally incorrect. It had objected to the
participation of Kalpraj at the very first opportunity and continued to
object till CoC approved its plan and also thereafter, by way of an
application before NCLT objecting to the approval of the Resolution
Plan of Kalpraj.
31. Learned counsel further submitted, that the contention, that
KIAL is a subsidiary of Kotak Bank and that Kotak Bank had also not
objected to Kalpraj submitting its Resolution Plan and therefore the same
amounted to acquiescence is also not correct. He submitted, that firstly,
in the reply filed by RP to the application filed by KIAL in NCLT, there
is no plea regarding the Kotak Bank’s consensus. He however submitted,
that in any case in view of the judgment of this Court in the case of
Vodafone International Holdings BV vs. Union of India & Anr.21,
both KIAL and Kotak Bank are different corporate entities and any act
of Kotak Bank cannot bind KIAL.
32. On merits,
Shri Kaul would submit, that the entire process
adopted by RP and CoC was contrary to the statutory provisions, fair
play and transparency. He submitted, that perusal of the definition of
‘applicant’ in the Process Memorandum in clause 1.0 would show, that
for being a resolution applicant, one has to be an applicant who has
applied within the prescribed period either under EOI or Form ‘G’. It is
submitted, that since Kalpraj had neither responded within the period
prescribed under EOI or any of the Form ‘G’, it could not have been
considered to be a resolution applicant. He submitted, that the entire
participation of Kalpraj is illegal. He submitted, that after the plan was
submitted by KIAL there was a detailed discussion with RP with regard
to the plan submitted by it, wherein entire plan was disclosed, after which
Kalpraj was permitted to step in. He submitted, that perusal of the
Resolution Plan of Kalpraj would reveal, that it is identical with the plans
submitted by KIAL, with a little variation to the extent, that in the plan of
21 (2012) 6 SCC 613
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KIAL the provision made for minority shareholder is Rs.1 crore whereas,
in the plan of Kalpraj it is Rs. 50 crore. He submitted, that the entire
conduct of RP as well as CoC would reveal, that they had acted in a
manner that smacks of favouritism to Kalpraj and were determined to
anyhow approve the plan of Kalpraj. It is submitted, that all these aspects
have been rightly considered by NCLAT and therefore, the appeals
deserve to be dismissed.
33. With regard to the contention of the appellant/Kalpraj, that it
has taken several steps in pursuance of the Resolution Plan, which was
approved by NCLT and any interference at this stage would cause great
prejudice to many stakeholders, learned counsel submitted, that not much
has been done under the Resolution Plan. He submits, in any case,
whatever steps have been taken are almost identical with the steps that
KIAL would have taken inasmuch as, the Resolution Plan submitted by
Kalpraj is almost identical with the Resolution Plan submitted by KIAL.
He submitted, that in any case, whatever amount has been spent by
Kalpraj, the same could be reimbursed by KIAL and further steps being
continued to be taken by KIAL, so as to take the Resolution Plan to the
logical end.
34. Insofar as the judgment of NCLAT in the case of Binani
Industries Limited vs. Bank of Baroda & Anr.22 is concerned, learned
counsel submitted, that the said judgment is totally distinguishable
inasmuch as, in
the said case both applicants had submitted their plans
and revised plans within the stipulated period.
35. In view of the rival submissions, following questions arise for
our consideration.
(i)
Whether the appeals filed by KIAL before NCLAT were
within limitation?
(ii)
Whether there was waiver and acquiescence by KIAL, so
as to estop it from challenging the participation of Kalpraj?
(iii)
Whether NCLAT was right in law in interfering with the
decision of CoC of accepting the resolution plan of Kalpraj?
(i) WHETHER THE APPEALS FILED BY KIAL BEFORE
NCLAT WERE WITHIN LIMITATION?
36. For appreciating the rival contentions in this regard, it would
be appropriate to refer to Section 29(2) of the Limitation Act, so also the
provisions of Section 61 and Section 238A of the I&B Code.
22 2018 SCC Online NCLAT 565
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Section 29(2) of the Limitation Act.
“29. Savings.—(1) …….
(2) Where any special or local law prescribes for any suit,
appeal or application a period of limitation different from
the period prescribed by the Schedule, the provisions of Section
3 shall apply as if such period were the period prescribed by
the Schedule and for the purpose of determining any period
of limitation prescribed for any suit, appeal or application
by any special or local law, the provisions contained in
Sections 4 to 24 (inclusive) shall apply only insofar as, and
to the extent to which, they are not expressly excluded by
such special or local law.”
Section 61 and 238A of the I&B Code
“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.
(2) Every appeal under sub-section (1) shall be filed
within thirty days before the National Company Law Appellate
Tribunal:
Provided that the National Company Law Appellate
Tribunal may allow an appeal to be filed after the expiry of
the said period of thirty days if it is satisfied that there was
sufficient cause for not filing the appeal but such period shall
not exceed fifteen days.
(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;
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(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.
(4) An appeal against a liquidation order passed under
Section 33 may be filed on grounds of material irregularity
or fraud committed in relation to such a liquidation order.”
“238-A. Limitation.—The provisions of the Limitation Act,
1963 (36 of 1963) shall, as far as may be, apply to the
proceedings or appeals before the Adjudicating Authority,
the National Company Law Appellate Tribunal, the Debt
Recovery Tribunal or the Debt Recovery Appellate Tribunal,
as the case may be.”
37. Perusal of the aforesaid would reveal, that though the provisions
of the Limitation Act, as far as may be, would apply to the proceedings
or appeals before the Adjudicating Authority, NCLAT, the Debt Recovery
Tribunal or the Debt Recovery Appellate Tribunal, where a period of
limitation for initiation of proceedings is provided under any special or
local law, different from the period prescribed by the Schedule, the
provisions of Section 3 shall apply, as if such period were the period
prescribed by the Schedule. It would further reveal, that for the purpose
of determining any period
of limitation prescribed for any suit, appeal or
application by any special or local law, the provisions contained in sections
4 to 24 (inclusive), shall apply only in so far, and to the extent to which,
they are not expressly excluded by such special or local law.
38. An appeal is provided before NCLAT under sub-section (1)
of Section 61 of the I&B Code to any person, who is aggrieved by the
order of the Adjudicating Authority. Sub-section (2) of Section 61 of the
I&B Code provides, that every appeal under sub-section (1) shall be
filed within thirty days before NCLAT. The proviso thereto further
provides, that NCLAT may allow an appeal to be filed after the expiry
of the said period of thirty days if it is satisfied, that there was sufficient
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cause for not filing the appeal. However, such period shall not exceed
fifteen days.
39. Since there is a period different from the one which is prescribed
by the Schedule to the Limitation Act, the limitation for an appeal would
be governed by Section 61 of the I&B Code, which is a special statute.
As such, an appeal will have to be preferred within a period of thirty
days from the date on which the order was passed by NCLT. However,
if NCLAT is satisfied, that there was sufficient cause for not filing the
appeal within a period of thirty days, it may allow an appeal to be filed
within a further period of fifteen days. As such, the normal period of
limitation prescribed under the I&B Code is thirty days, with a provision
for allowing the filing of an appeal within a further period of fifteen days,
if NCLAT is satisfied, that there was a sufficient cause for not filing the
appeal within thirty days.
40. In the present case, the dates are not in dispute. The judgment
of NCLT is dated 28.11.2019. As such, as per Section 61(2) of the I&B
Code, the appeal was required to be filed on or prior to 28.12.2019. The
appeal could have been filed within a further period of fifteen days, if
NCLAT was satisfied, that there was sufficient cause for not filing the
appeal within a period of thirty days. As such, the said period would
come to an end on 12.1.2020. The certified copy of the impugned
judgment of NCLT was made available on 18.12.2019. If the allowance
for the
said period is granted, the appeal should have been preferred on
or prior to 2.2.2020. However, in the present case, the appeal is filed on
18.2.2020. It is also not in dispute, that immediately after the order was
passed on 28.11.2019 by NCLT, KIAL preferred a writ petition being
Writ Petition (L) No. 3621 of 2019 before the Division Bench of the
Bombay High Court on 11.12.2019. The said writ petition came to be
dismissed on 28.1.2020 on the ground, that KIAL had an alternate and
efficacious remedy available under Section 61 of the I&B Code and as
such, it was relegated to the alternate remedy available in law.
41. It is strenuously urged on behalf of all the appellants except
Fourth Dimension Solutions Ltd., that the I&B Code is a complete code
in itself, which also provides for a period of limitation and as such, Section
14 of the Limitation Act would not be available to KIAL.
42. On the contrary, it is urged on behalf of KIAL, that since the
order passed by NCLT was passed in utter breach of the principles of
natural justice, it had bona fide filed a writ petition before the Division
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Bench of the Bombay High Court. It is urged, that by an elaborate order
the writ petition came to be dismissed, on the ground of availability of
alternate remedy. It is therefore urged, that the provisions of Section 14
or at least the principles laid down therein, would be available to KIAL
and as such, the appeals, as filed will have to be held to be within limitation.
43. Therefore, the crucial question, that arises for consideration,
is as to whether the provisions of Section 14 of the Limitation Act or the
principles laid down therein would be available to KIAL for exclusion of
the period during which it was prosecuting the writ petition before the
Division Bench of the Bombay High Court.
44. It will be relevant to refer to Section 14 of the Limitation Act.
“14. Exclusion of time of proceeding bona fide in court without
jurisdiction.—(1) In computing the period of limitation for
any suit the time during which the plaintiff has been
prosecuting with due diligence another civil proceeding,
whether in a court of first instance or of appeal or revision,
against the defendant shall be excluded, where the proceeding
relates to the same matter in issue and is prosecuted in good
faith in a court which, from defect of jurisdiction or other
cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application,
the time during which the applicant has been prosecuting with
due
diligence another civil proceeding, whether in a court of
first instance or of appeal or revision, against the same party
for the same relief shall be excluded, where such proceeding
is prosecuted in good faith in a court which, from defect of
jurisdiction or other cause of a like nature, is unable to
entertain it.
(3) Notwithstanding anything contained in Rule 2 of Order
XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the
provisions of sub-section (1) shall apply in relation to a fresh
suit instituted on permission granted by the court under Rule
1 of that Order, where such permission is granted on the
ground that the first suit must fail by reason of a defect in the
jurisdiction of the court or other cause of a like nature.
Explanation.—For the purposes of this section,—
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(a)
in excluding the time during which a former civil
proceeding was pending, the day on which that
proceeding was instituted and the day on which it ended
shall both be counted;
(b)
a plaintiff or an applicant resisting an appeal shall be
deemed to be prosecuting a proceeding;
(c)
misjoinder of parties or of causes of action shall be
deemed to be a cause of a like nature with defect of
jurisdiction.”
45. The conditions that are required to be fulfilled for invoking the
provisions of Section 14 of the Limitation Act have been succinctly spelt
out in various judgments of this Court including the one in Consolidated
Engineering Enterprises vs. Principal Secretary, Irrigation
Department and others23, which read thus:
“21. ”Section 14 of the Limitation Act deals with exclusion of
time of proceeding bona fide in a court without jurisdiction. On
analysis of the said section, it becomes evident that the following
conditions must be satisfied before Section 14 can be pressed into
service:
(1)
Both the prior and subsequent proceedings are civil
proceedings prosecuted by the same party;
(2)
The prior proceeding had been prosecuted with due diligence
and in good faith;
(3)
The failure of the prior proceeding was due to defect of
jurisdiction or other cause of like nature;
(4)
The earlier proceeding and the latter proceeding must relate
to the same matter in issue; and
(5)
Both the proceedings are in a court.”
46. Perusal of the aforesaid conditions would make it
amply clear,
that one of the conditions that is required to be fulfilled is that both the
proceedings are in a court. The question as to whether the provisions of
Section 14 of the Limitation Act would also be applicable to the quasi-
judicial forums as against the court, fell for consideration before this
Court in the case of M.P. Steel Corporation (supra). This Court after
23 (2008) 7 SCC 169
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an elaborate survey of the various judgments of this Court, including
judgment in the cases of Bharat Bank Ltd., Delhi vs. Employees of
the Bharat Bank Ltd., Delhi24, Town Municipal Council, Athani vs.
Presiding Officer, Labour Courts, Hubli and others etc.25, Nityananda
M. Joshi and others vs. Life Insurance Corporation of India and
others26, Commissioner of Sales Tax. U.P., Lucknow vs. Parson Tools
and Plants, Kanpur27, Kerala State Electricity Board, Trivandrum
vs. T.P. Kunhaliumma28, Officer on Special Duty (Land Acquisition)
and another vs. Shah Manilal Chandulal and others29 and
Consolidated Engineering Enterprises (supra) held, that the word
“court” in Section 14 takes its colour from the preceding words “civil
proceedings”. It was therefore held, that the Limitation Act including
Section 14 would not apply to appeals filed before a quasi-judicial
Tribunal. It was held, that since the appeal as mentioned in Section 128
of the Customs Act is not before a Court, the provisions of Section 14
would not be applicable.
47. All the authorities cited above, including Consolidated
Engineering Enterprises (supra), have been elaborately discussed in
the judgment of this Court in the case of M.P. Steel Corporation (supra)
and therefore, we refrain from burdening the present judgment by
reproducing the observations made in those judgments.
48. This Court in M.P. Steel Corporation (supra) further observed,
that the judgment
of this Court in the case of Commissioner of Sales
Tax, U.P. vs. Madan Lal Das & Sons, Bareilly30 had not considered
the law laid down in Parson Tools and Plants (supra) and the other
judgments nor the aforesaid decisions were pointed out to the Court and
therefore, the said judgment in the case of Madan Lal Das & Sons
(supra) was not an authority for the proposition, that the Limitation Act
would apply to Tribunals.
49. After having held, that the Limitation Act, including Section 14
would not apply to appeals filed before a quasi-judicial Tribunal, this
Court in M.P. Steel Corporation (supra) observed thus:
24 AIR 1950 SC 188 = 1950 SCR 459
25 (1969) 1 SCC 873
26 (1969) 2 SCC 199
27 (1975) 4 SCC 22
28 (1976) 4 SCC 634
29 (1996) 9 SCC 414
30 (1976) 4 SCC 464
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“….However, this does not conclude the issue. There is authority
for the proposition that even where Section 14 may not apply, the
principles on which Section 14 is based, being principles which
advance the cause of justice, would nevertheless apply. We must
never forget, as stated in Bhudan Singh v. Nabi Bux [(1969) 2
SCC 481 : (1970) 2 SCR 10] that justice and reason is at the heart
of all legislation by Parliament. This was put in very felicitous
terms by Hegde, J. as follows: (SCC p. 485, para 9)
‘9. Before considering the meaning of the word ‘held’ in Section
9, it is necessary to mention that it is proper to assume that the
lawmakers who are the representatives of the people enact
laws which the society considers as honest, fair and equitable.
The object of every legislation is to advance public welfare. In
other words as observed by Crawford in his book on ‘Statutory
Constructions’ that the entire legislative process is influenced
by considerations of justice and reason. Justice and reason
constitute the great general legislative intent in every piece of
legislation. Consequently where the suggested construction
operates harshly, ridiculously or in any other manner contrary
to prevailing conceptions of justice and reason, in most instances,
it would seem that the apparent or suggested meaning of the
statute, was not the one intended by the lawmakers. In the
absence of some other indication that the harsh or ridiculous
effect was actually intended
by the legislature, there is little
reason to believe that it represents the legislative intent.’
39. This is why the principles of Section 14 were applied in J.
Kumaradasan Nair v. Iric Sohan [(2009) 12 SCC 175 : (2009)
4 SCC (Civ) 656] to a revision application filed before the High
Court of Kerala. The Court held: (SCC pp. 180-81, paras 16-18)
‘16. The provisions contained in Sections 5 and 14 of the
Limitation Act are meant for grant of relief where a person
has committed some mistake. The provisions of Sections 5
and 14 of the Limitation Act alike should, thus, be applied in a
broadbased manner. When sub-section (2) of Section 14 of
the Limitation Act per se is not applicable, the same would not
mean that the principles akin thereto would not be applied.
Otherwise, the provisions of Section 5 of the Limitation Act
would apply. There cannot be any doubt whatsoever that the
same would be applicable to a case of this nature.
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17. There cannot furthermore be any doubt whatsoever that
having regard to the definition of ‘suit’ as contained in Section
2(l) of the Limitation Act, a revision application will not answer
the said description. But, although the provisions of Section 14
of the Limitation Act per se are not applicable, in our opinion,
the principles thereof would be applicable for the purpose of
condonation of delay in filing an appeal or a revision application
in terms of Section 5 thereof.
18. It is also now a well-settled principle of law that mentioning
of a wrong provision or non-mentioning of any provision of
law would, by itself, be not sufficient to take away the
jurisdiction of a court if it is otherwise vested in it in law. While
exercising its power, the court will merely consider whether it
has the source to exercise such power or not. The court will
not apply the beneficent provisions like Sections 5 and 14 of
the Limitation Act in a pedantic manner. When the provisions
are meant to apply and in fact found to be applicable to the
facts and circumstances of a case, in our opinion, there is no
reason as to why the court will refuse to apply the same only
because a wrong provision has been mentioned. In a case of
this nature, sub-section (2) of Section 14 of the Limitation Act
per se may not be applicable, but, as indicated hereinbefore,
the principles thereof would be applicable for the purpose of
condonation of delay in
terms of Section 5 thereof.’
40. The Court further quoted from Consolidated Engg.
Enterprises [(2008) 7 SCC 169] an instructive passage: (Iric
Sohan case [(2009) 12 SCC 175 : (2009) 4 SCC (Civ) 656], SCC
p. 183, para 21)
‘21. In Consolidated Engg. Enterprises v. Irrigation
Deptt. [(2008) 7 SCC 169] this Court held: (SCC p. 181, para
22)
‘22. The policy of the section is to afford protection to a litigant
against the bar of limitation when he institutes a proceeding
which by reason of some technical defect cannot be decided
on merits and is dismissed. While considering the provisions of
Section 14 of the Limitation Act, proper approach will have to
be adopted and the provisions will have to be interpreted so as
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to advance the cause of justice rather than abort the
proceedings. It will be well to bear in mind that an element of
mistake is inherent in the invocation of Section 14. In fact, the
section is intended to provide relief against the bar of limitation
in cases of mistaken remedy or selection of a wrong forum.
On reading Section 14 of the Act it becomes clear that the
legislature has enacted the said section to exempt a certain
period covered by a bona fide litigious activity. Upon the words
used in the section, it is not possible to sustain the interpretation
that the principle underlying the said section, namely, that the
bar of limitation should not affect a person honestly doing his
best to get his case tried on merits but failing because the
court is unable to give him such a trial, would not be applicable
to an application filed under Section 34 of the 1996 Act. The
principle is clearly applicable not only to a case in which a
litigant brings his application in the court, that is, a court having
no jurisdiction to entertain it but also where he brings the suit
or the application in the wrong court in consequence of bona
fide mistake or (sic of) law or defect of procedure. Having
regard to the intention of the legislature this Court is of the
firm opinion that the equity underlying Section 14 should be
applied to its fullest extent and time taken diligently pursuing a
remedy, in a wrong court, should be excluded.’
See Shakti Tubes Ltd. v. State of
Bihar [(2009) 1 SCC 786 :
(2009) 1 SCC (Civ) 370].’ “
50. Thus, this Court relying on the earlier judgments in the cases
of Bhudan Singh and another vs. Nabi Bux and another31, J.
Kumaradasan Nair and another vs. Iric Sohan and others32, and
Consolidated Engineering Enterprises (supra) observed, that the object
of enacting the legislation is to advance public welfare. The entire
legislative process is influenced by considerations of justice and reason.
Justice and reason constitute the great general legislative intent in every
piece of legislation. It has been held by this Court, that in the absence of
some other indication that the harsh or ridiculous effect was actually
intended by the legislature, there is little reason to believe, that it represents
the legislative intent. It is further observed, that the provisions contained
31 (1969) 2 SCC 481
32 (2009) 12 SCC 175
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in Sections 5 and 14 of the Limitation Act are meant for grant of relief,
where a person has committed some mistake. In J. Kumaradasan Nair
(supra), it has been observed, that when sub-section (2) of Section 14 of
the Limitation Act per se is not applicable, the same would not mean,
that the principles akin thereto would not be applicable.
51. In Consolidated Engineering Enterprises (supra), it has
been observed, that while considering the provisions of Section 14 of the
Limitation Act, proper approach will have to be adopted and the provisions
will have to be interpreted, so as to advance the cause of justice, rather
than abort the proceedings. It has been observed, that an element of
mistake is inherent in the invocation of Section 14. The section, in fact, is
intended to provide a relief against the bar of limitation in cases of mistaken
remedy or selection of a wrong forum. It has been observed, that the
legislature has enacted Section 14 to exempt a certain period covered
by a bona fide litigious activity. It has been held, that the equity underlying
Section 14 should be applied to its fullest extent and time taken diligently
pursuing a remedy, in a wrong court, should be excluded. It could thus
be seen, that this Court has in unequivocal terms held, that when a litigant
bona fide under a mistake litigates before a wrong forum, he would be
entitled for exclusion of the period, during which he was bona fide
prosecuting such a wrong remedy. Though strictly, the provisions of
Section 14 of the Limitation Act would not be applicable to the proceedings
before a quasi-judicial Tribunal, however, the principles underlying the
same would be applicable i.e. the proper approach will have to be of
advancing the cause of justice, rather than to abort the proceedings.
52. An argument similar to the one which is advanced before us,
that since the Code is a complete Code in itself, the limitation as provided
only under the Code would govern the field and would exclude the
application of provisions of Section 14 of the Limitation Act was made in
the case of M.P. Steel Corporation (supra). While considering this
objection, this Court observed thus:
“42. However, it remains to consider whether Shri Sanghi is right
in stating that Section 128 is a complete code by itself which
necessarily excludes the application of Section 14 of the Limitation
Act. For this proposition he relied strongly on Parson Tools [(1975)
4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743] which has
been discussed hereinabove. As has already been stated, Parson
Tools [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR
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743] was a judgment which turned on the three features mentioned
in the said case. Unlike the U.P. Sales Tax Act, there is no provision
in the Customs Act which enables a party to invoke suo motu the
appellate power and grant relief to a person who institutes an
appeal out of time in an appropriate case. Also, Section 10 of the
U.P. Sales Tax Act dealt with the filing of a revision petition after
a first appeal had already been rejected, and not to a case of a
first appeal as provided under Section 128 of the Customs Act.
Another feature, which is of direct relevance in this case, is that
for revision petitions filed under the U.P. Sales Tax Act a sufficiently
long period of 18 months had been given beyond which it was the
policy of the legislature not to extend limitation any further. This
aspect of Parson Tools [(1975) 4 SCC 22 : 1975 SCC (Tax) 185
: (1975) 3 SCR 743] has been explained in Consolidated Engg.
[(2008) 7 SCC 169] in some detail by both the main judgment as
well as the concurring judgment. In the latter judgment, it has
been pointed out that there is a vital distinction between extending
time and condoning delay. Like Section 34 of the Arbitration Act,
Section 128 of the Customs Act is a section which lays down that
delay cannot be condoned beyond a certain period. Like Section
34 of the Arbitration Act, Section 128 of the Customs Act does
not lay down a long period. In these circumstances, to infer
exclusion of Section 14 or the principles
contained in Section 14
would be unduly harsh and would not advance the cause of justice.
It must not be forgotten as is pointed out in the concurring judgment
in Consolidated Engg. [(2008) 7 SCC 169] that: (SCC p. 193,
para 54)
‘54. … Even when there is cause to apply Section 14, the
limitation period continues to be three months and not more,
but in computing the limitation period of three months for the
application under Section 34(1) of the AC Act, the time during
which the applicant was prosecuting such application before
the wrong court is excluded, provided the proceeding in the
wrong court was prosecuted bona fide, with due
diligence. Western Builders [State of Goa v. Western
Builders, (2006) 6 SCC 239] therefore lays down the correct
legal position.’
43. Merely because Parson Tools [(1975) 4 SCC 22 : 1975 SCC
(Tax) 185 : (1975) 3 SCR 743] also dealt with a provision in a tax
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statute does not make the ratio of the said decision apply to a
completely differently worded tax statute with a much shorter
period of limitation— Section 128 of the Customs Act. Also, the
principle of Section 14 would apply not merely in condoning delay
within the outer period prescribed for condonation but would apply
dehors such period for the reason pointed out in Consolidated
Engg. [(2008) 7 SCC 169] above, being the difference between
exclusion of a certain period altogether under Section 14 principles
and condoning delay. As has been pointed out in the said judgment,
when a certain period is excluded by applying the principles
contained in Section 14, there is no delay to be attributed to the
appellant and the limitation period provided by the statute concerned
continues to be the stated period and not more than the stated
period. We conclude, therefore, that the principle of Section 14
which is a principle based on advancing the cause of justice would
certainly apply to exclude time taken in prosecuting proceedings
which are bona fide and with due diligence pursued, which
ultimately end without a decision on the merits of the case.”
53. Perusal of the aforesaid would therefore reveal, that the Court
has clearly rejected the objection raised by the Revenue in M.P. Steel
Corporation (supra) which was raised relying on the judgment of this
Court in the case of Parson Tools and Plants (supra). This Court
observed, that the time during which the applicant was prosecuting such
application before the wrong court can be excluded, provided the
proceeding in the wrong court was prosecuted bona fide, with due
diligence. This Court distinguished the judgment in the case of Parson
Tools and Plants (supra) on the ground, that the period provided for
filing a revision under the U.P. Sales Tax Act was sufficiently long period
of 18 months, beyond which it was the policy of the legislature not to
extend limitation any further. Relying on the Consolidated Engineering
Enterprises (supra), it has been observed, that there is a vital distinction
between extending time and condoning delay. It was further observed,
that like Section 34 of the Arbitration Act, the period provided in Section
128 of the Customs Act did not lay down a long period for preferring an
appeal. As such, it would be unduly harsh to exclude the principles
contained in Section 14 of the Limitation Act. Relying on Consolidated
Engineering Enterprises (supra) it was observed, that there is a
difference between exclusion of a certain period altogether under
principles of Section 14 and condoning the delay. It has been observed,
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that when a certain period is excluded by applying the principles contained
in Section 14, there is no delay to be attributed to the appellant and the
limitation period provided by the statute concerned, continues to be the
stated period and not more than the stated period. It was therefore held,
that the principle of section 14, which is a principle based on advancing
the cause of justice would certainly apply to exclude time taken in
prosecuting proceedings which are bona fide and pursued with due
diligence but which end without a decision on the merits of the case.
54. Coming to the facts of the present case, immediately after
NCLT pronounced its judgment on 28.11.2019 and even before the
certified copy was made available on 18.12.2019, KIAL had filed writ
petition before the Division Bench of the Bombay High Court on
11.12.2019 on the principal ground, that the procedure followed by NCLT
was in breach of principles of natural justice. Such a ground could be
legitimately pursued before a writ court. In that sense, it was not a
proceeding before a wrong court, as such. Perusal of the judgment and
order dated 28.1.2020, passed by the Division Bench of the Bombay
High Court, which dismissed the writ petition on the ground of availability
of alternate and equally efficacious remedy would reveal, that the said
writ petition was hotly contested between the parties and by an order
running into 32 pages, the Division Bench of the Bombay High Court
dismissed
the petition relegating the petitioner therein (i.e. KIAL) to
avail of an alternate remedy available in law.
55. Perusal of the memo of the writ petition would reveal, that the
petitioner (i.e. KIAL) has specifically averred thus in the petition:
“2. By way of present Petition seeks to challenge order dated
28th November 2019 passed by Hon’ble National Company Law
Tribunal – Bench – II, Mumbai (“NCLT”) on Misc. Application
No.1039 of 2019 filed by the present Petitioner. The NCLT, in
gross abuse of process of law and in complete disregard of true
and actual circumstances has proceeded to pass the impugned
order. The order impugned is passed by bench of two members,
Hon’ble M.K. Sharawat (Judicial) and Hon’ble Chandra Bhan
Singh (Technical) on 28th November, 2019. However, the matter
was heard and reserved for orders on 03rd July, 2019, by Hon’ble
Member, Shri M.K. Sharawat (Judicial). At the relevant point of
time, when the matter was heard and argued, Hon’ble Chandra
Bhan Singh (Technical) was not even appointed as Member of
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NCLT and never had occasion to hear and adjudicate upon the
Application filed by the Petitioner. It is not just the Application
filed by the Petitioner but 3 other Applications which are disposed
off by the common order were not heard by the bench who has
passed the order. This is not just contrary to law but demonstrate
that the entire process of passing the orders was in an absolute
mechanical manner. Annexed hereto and marked as EXHIBIT
“A” is the copy of the order dated 28th November 2019 passed by
NCLT on Miscellaneous Application No. 1039 of 2019.”
56. It could therefore be seen, that the petitioner - KIAL has
specifically stated, that though the application of the petitioner was heard
by a Member (Judicial), the order was passed by a Division Bench
consisting of Member (Judicial) as well as Member (Technical). Perusal
of the grounds would further reveal, that a specific ground has been
taken, that the procedure adopted by NCLT was in breach of principles
of natural justice.
57. It will also be relevant to refer to paragraph 14 of the Memo
of the writ petition, which reads thus:
“14. The Petitioner submits that the Petitioner has alternate remedy
of filing of Appeal before the Hon’ble NCLAT. However, the
issue involved in present Writ Petition is not just about the merits
of the impugned order, but also in respect of functioning of the
Tribunal and the manner in which Tribunal deals with the matters.
These
Tribunals come under supervisory control of jurisdictional
High Court i.e. this Hon’ble Court. The issue involved is not in
respect of this matter but also in respect of day to day functioning
of the Tribunal and the manner in which such issues are being
dealt with by the Tribunal. Therefore, Petitioner is exercising Writ
Jurisdiction of this Hon’ble Court.”
58. It could thus clearly be seen, that the petitioner therein i.e.
KIAL has specifically stated, that though it had an alternate remedy of
filing an appeal before NCLAT, since the petition was not just about the
merits of the impugned order, but also in respect of functioning of the
Tribunal the petitioner was invoking the writ jurisdiction of the Court.
59. By now, it is a settled principle of law, that non-exercise of
jurisdiction by the High Court under Article 226 of the Constitution is not
a hard and fast rule, but a rule of self-restraint. As early as in 1969, in
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the case of Babu Ram Prakash Chandra Maheshwari (supra), this
Court observed thus:
“It is a well-established proposition of law that when an alternative
and equally efficacious remedy is open to a litigant he should be
required to pursue that remedy and not to invoke the special
jurisdiction of the High Court to issue a prerogative writ. It is true
that the existence of a statutory remedy does not affect the
jurisdiction of the High Court to issue a writ. But, as observed by
this Court in Rashid Ahmed v. The Municipal Board, Kairana
[(1950) SCR 566], “the existence of an adequate legal remedy is
a thing to be taken into consideration in the matter of granting
writs” and where such a remedy exists it will be a sound exercise
of discretion to refuse to interfere in a writ petition unless there
are good grounds therefore. But it should be remembered that the
rule of exhaustion of statutory remedies before a writ is granted
is a rule of self imposed limitation, a rule of policy, and discretion
rather than a rule of law and the court may therefore in exceptional
cases issue a writ such as a writ of certiorari notwithstanding the
fact that the statutory remedies have not been exhausted.”
60. This Court further laid down two well recognized exceptions
to the doctrine with regard to the exhaustion of statutory remedies, which
reads thus:
“There are at least two well-recognised exceptions to the doctrine
with regard to the exhaustion of statutory remedies. In the
first
place, it is well-settled that where proceedings are taken before a
Tribunal under a provision of law, which is ultra vires, it is open to
a party aggrieved thereby to move the High Court under Art.
226 for issuing appropriate writs for quashing them on the ground
that they are incompetent, without his being obliged to wait until
those proceedings run their full course.—(See the decisions of
this Court in Carl Still G.m.b.H. v. The State of Bihar [A.I.R.
1961 S.C. 1615] and The Bengal Immunity Co. Ltd. v. The State
Bihar [(1955) 2 S.C.R. 603]. In the second place, the doctrine
has no application in a case where the impugned order has been
made in violation of the principles of natural justice (See The State
of Uttar Pradesh v. Mohammad Nooh [(1958) S.C.R. 595].”
61. It has been clearly held, that when the proceedings invoked
before a statutory authority are de hors the jurisdiction or when they are
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in breach of principles of natural justice, the party would be entitled to
invoke the jurisdiction of the High Court under Article 226 of the
Constitution.
62. Referring to earlier judgments, this Court in the case of
Whirlpool Corporation (supra) observed thus:
“15.  Under Article 226 of the Constitution, the High Court, having
regard to the facts of the case, has a discretion to entertain or not
to entertain a writ petition. But the High Court has imposed upon
itself certain restrictions one of which is that if an effective and
efficacious remedy is available, the High Court would not normally
exercise its jurisdiction. But the alternative remedy has been
consistently held by this Court not to operate as a bar in at least
three contingencies, namely, where the writ petition has been filed
for the enforcement of any of the Fundamental Rights or where
there has been a violation of the principle of natural justice or
where the order or proceedings are wholly without jurisdiction or
the vires of an Act is challenged. There is a plethora of case-law
on this point but to cut down this circle of forensic whirlpool, we
would rely on some old decisions of the evolutionary era of the
constitutional law as they still hold the field.”
63. A similar view has been reiterated in the judgment of this
Court in the case of Nivedita Sharma vs. Cellular Operators
Association of India (supra).
64. In the present case, perusal of the
writ petition would reveal,
that it was the specific case of KIAL, that its application, objecting to
the application of RP for approval of the resolution plan was heard by a
Member (Judicial), whereas, the final orders were passed by a Bench
consisting of Member (Judicial) and Member (Technical). It has
specifically averred, that though an alternate remedy was available to it,
it was invoking the jurisdiction of the High Court since the question
involved was also with regard to the manner in which the jurisdiction
was exercised by NCLT. It could thus be seen, that KIAL was bona
fide prosecuting the proceedings before the High Court in good faith.
Perusal of the dates referred to herein above would also reveal, that
KIAL was prosecuting the proceedings before the High Court with due
diligence. Even before the availability of the certified copy, it had knocked
the doors of the High Court. The matter before the High Court was
hotly contested and ultimately, the petition was dismissed by an elaborate
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judgment relegating KIAL to the alternate remedy available to it in law.
As such, the conditions which enable a party to invoke the provisions of
Section 14 of the Limitation Act are very much available to KIAL. If the
period during which KIAL was bona fide prosecuting the writ petition
before the High Court and that too with due diligence, is excluded applying
the principles underlying Section 14 of the Limitation Act, the appeals
filed before NCLAT would be very much within the limitation. We find,
that KIAL would be entitled to exclusion of the period during which it
was bona fide prosecuting the remedy before the High Court with due
diligence.
65. That leaves us to consider the judgments referred to by the
appellants on the issue of limitation.
66. In the case of Popular Construction Co. (supra) this Court
was considering the question as to whether the provisions of Section 5
of the Limitation Act are applicable to an application challenging an award
under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter
referred to as “the Arbitration Act”). This Court observed thus:
“14. Here the history and scheme of the 1996 Act support the
conclusion that the time-limit prescribed under Section 34 to
challenge an award is absolute and unextendible by court under
Section 5 of the Limitation Act. The Arbitration and Conciliation
Bill, 1995 which preceded the 1996 Act stated as one of its main
objectives the need “to minimise the supervisory
role of courts in
the arbitral process” [ Para 4(v) of the Statement of Objects and
Reasons of the Arbitration and Conciliation Act, 1996]. This
objective has found expression in Section 5 of the Act which
prescribes the extent of judicial intervention in no uncertain terms:
‘5. Extent of judicial intervention.—Notwithstanding
anything contained in any other law for the time being in force,
in matters governed by this Part, no judicial authority shall
intervene except where so provided in this Part.’ “
67. It must be noticed, that the judgment in the case of Popular
Construction Co. (supra) was considered by this Court by a Bench
consisting of three Judges in the case of Consolidated Engineering
Enterprises (supra) wherein, the question with regard to applicability of
Section 14 of the Limitation Act to an application under Section 34(3) of
the Arbitration Act fell for consideration. In Consolidated Engineering
Enterprises (supra), the appellant before this Court was an enterprise
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engaged in civil engineering construction as well as development of
infrastructure. It entered into an agreement with the respondent for
construction of earthen bund, head sluices and the draft channel of the
Y.G. Gudda tank. A dispute arose between the parties and therefore, the
appellant invoked arbitration Clause 51 of the agreement. The dispute
was referred to the sole arbitrator who passed his award in favour of
the appellant. Feeling aggrieved by the said award, the respondents
preferred an application to set aside the said award as provided by
Section 34 of the Arbitration Act in the Court of the Civil Judge (Senior
Division), Ramanagaram, Bangalore Rural District, Bangalore. However,
it was realised by the respondents, that an application for setting aside
the award should have been filed before the Principal District Judge,
Bangalore District (Rural). As such, an application was preferred by the
respondents in the Court of the Civil Judge (Senior Division),
Ramanagaram with a request to transfer the application made for setting
aside the award to the Court of the Principal District Judge (Rural),
Bangalore.
68. The Civil Judge (Senior Division), Ramanagaram passed an
order directing return of the suit records for presentation before the
proper court. The respondents therefore collected the papers from the
Court of the Civil Judge (Senior Division), Ramanagaram and presented
the same in the Court of the
Principal District Judge, Bangalore (Rural).
The District Court framed a preliminary issue, as to whether the suit
was barred by the limitation under Section 34(3) of the Arbitration Act.
The District Judge held, the application for setting aside the award to be
time-barred. The respondents invoked the appellate jurisdiction of the
High Court of Karnataka at Bangalore. The Division Bench of the
Karnataka High Court held, that the District Judge, Bangalore had
committed an error in holding, that Section 14 of the Limitation Act was
not applicable to an application submitted under Section 34 of the Act. It
was therefore held, that the time taken during which the respondents
had been prosecuting in the Court of the Civil Judge (Senior Division),
Ramanagaram was excludable.
69. Feeling aggrieved, the appellant had approached this Court.
Panchal, J. speaking for himself and Balakrishna, C.J. (as their Lordships
then were) observed thus:
“27. The contention that in view of the decision of the Division
Bench of this Court in Union of India v. Popular Construction
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Co. [(2001) 8 SCC 470] the Court should hold that the provisions
of Section 14 of the Limitation Act would not apply to an application
filed under Section 34 of the Act, is devoid of substance. In the
said decision what is held is that Section 5 of the Limitation Act is
not applicable to an application challenging an award under Section
34 of the Act. Section 29(2) of the Limitation Act inter alia provides
that where any special or local law prescribes, for any application,
a period of limitation different from the period prescribed by the
Schedule, the provisions contained in Sections 4 to 24 shall apply
only insofar as, and to the extent to which, they are not expressly
excluded by such special or local law. On introspection, the Division
Bench of this Court held that the provisions of Section 5 of the
Limitation Act are not applicable to an application challenging an
award. This decision cannot be construed to mean as ruling that
the provisions of Section 14 of the Limitation Act are also not
applicable to an application challenging an award under Section
34 of the Act. As noticed earlier, in the Act of 1996, there is no
express provision excluding application of the provisions of Section
14 of the Limitation Act to an application filed under Section 34 of
the Act for challenging an award.
28. Further, there is fundamental distinction between the discretion
to be exercised under Section 5 of the Limitation Act and exclusion
of the time provided in
Section 14 of the said Act. The power to
excuse delay and grant an extension of time under Section 5 is
discretionary whereas under Section 14, exclusion of time is
mandatory, if the requisite conditions are satisfied. Section 5 is
broader in its sweep than Section 14 in the sense that a number of
widely different reasons can be advanced and established to show
that there was sufficient cause in not filing the appeal or the
application within time. The ingredients in respect of Sections 5
and 14 are different. The effect of Section 14 is that in order to
ascertain what is the date of expiration of the “prescribed period”,
the days excluded from operating by way of limitation, have to be
added to what is primarily the period of limitation prescribed. Having
regard to all these principles, it is difficult to hold that the decision
in Popular Construction Co. [(2001) 8 SCC 470] rules that the
provisions of Section 14 of the Limitation Act would not apply to
an application challenging an award under Section 34 of the Act.”
KALPRAJ DHARAMSHI v. KOTAK INVESTMENT ADVISORS LTD.
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70. This Court clearly held, that the decision in the case of the
Popular Construction Co. (supra) cannot be construed to mean as a
ruling, that provisions of Section 14 of the Limitation Act are also not
applicable to an application challenging an award under Section 34 of
the Act. It has been held, that in the Arbitration Act, there is no express
provision excluding application of the provisions of Section 14 of the
Limitation Act to an application filed under Section 34 of the Arbitration
Act for challenging the award. It has further been found, that there is
fundamental distinction between the discretion to be exercised under
Section 5 of the Limitation Act and exclusion of the time provided in
Section 14 of the said Act. It was held, that the power to excuse delay
and grant an extension of time under Section 5 is discretionary, whereas
under Section 14, exclusion of time is mandatory, if the requisite conditions
are satisfied. It held, that the effect of Section 14 is that in order to
ascertain what is the date of expiration of the “prescribed period”, the
days excluded from operating by way of limitation, have to be added to
what is primarily the period of limitation prescribed.
71. Raveendran, J. (as His Lordship then was) in his concurring
judgment observed thus:
“54. On the other hand, Section 14 contained in Part III of the
Limitation Act does not relate to extension of the period of limitation,
but relates
to exclusion of certain period while computing the period
of limitation. Neither sub-section (3) of Section 34 of the AC Act
nor any other provision of the AC Act exclude the applicability of
Section 14 of the Limitation Act to applications under Section
34(1) of the AC Act. Nor will the proviso to Section 34(3) exclude
the application of Section 14, as Section 14 is not a provision for
extension of period of limitation, but for exclusion of certain period
while computing the period of limitation. Having regard to Section
29(2) of the Limitation Act, Section 14 of that Act will be applicable
to an application under Section 34(1) of the AC Act. Even when
there is cause to apply Section 14, the limitation period continues
to be three months and not more, but in computing the limitation
period of three months for the application under Section 34(1) of
the AC Act, the time during which the applicant was prosecuting
such application before the wrong court is excluded, provided the
proceeding in the wrong court was prosecuted bona fide, with
due diligence. Western Builders [(2006) 6 SCC 239] therefore
lays down the correct legal position.”
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72. In paragraph 57, Raveendran, J. also observed, that the decision
in Popular Construction Co. (supra) did not consider the applicability
of Section 14 of the Limitation Act to an application under Section 34 of
the Arbitration Act.
73. As such, in view of the judgment of three Judges Bench of
this Court in the case of Consolidated Engineering Enterprises (supra),
the reliance placed by the appellants on the judgment of this Court in
Popular Construction Co. (supra) would not be of any assistance.
74. Reliance is also placed on the judgment of this Court in the
case of Singh Enterprises (supra) wherein, the question raised was
with regard to applicability of the provisions of Section 5 of the Limitation
Act to an appeal filed under Section 35 of the Central Excise Act, 1944.
Again, the said judgment deals with applicability of Section 5 and not of
Section 14 of the Limitation Act and therefore would not support the
case of the appellants.
75. Similarly, reliance placed by the learned counsel for the
appellants on the judgment of this Court in the case of Commissioner
of Customs and Central Excise vs. Hongo India Private Limited
and another33, would also not help the appellants inasmuch as, the
question, that fell for consideration there was, with regard to the
applicability of Section 5 of the Limitation Act to a reference application
provided under Section 35-H(1) of the unamended Central Excise Act,
1944.
76. For the same reasons, the judgment of this
Court in the case
of Chhattisgarh State Electricity Board (supra) would also not take
the case of the appellants any further inasmuch as, again the question,
that fell for consideration was, with regard to applicability of Section 5
of the Limitation Act to an appeal under Section 125 of the Electricity
Act, 2003.
77. For the same reasons, we find, that the judgment relied on by
the appellants in the case of Bengal Chemists and Druggists
Association vs. Kalyan Chowdhury34 would also not be applicable to
the facts of the present case inasmuch as, the said judgment also
considered the applicability of Section 5 of the Limitation Act to an appeal
to the Appellate Tribunal provided under Section 421(3) and 433 of the
Companies Act, 2013.
33 (2009) 5 SCC 791
34 (2018) 3 SCC 41
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78. The judgment of this Court in the case of Neeraj Jhanji
(supra) would not be applicable to the facts of the present case. In the
said case, the petitioner had initially filed a writ petition before the Delhi
High Court against the order-in-original passed by the Commissioner of
Customs, Kanpur. Delhi High Court converted the writ petition into a
statutory appeal under the Customs Act, 1962 by order dated 9-11-2009.
On 9-9-2010 the Revenue raised an objection about the territorial
jurisdiction of that Court. On 5-1-2012 the petitioner withdrew the appeal
with liberty to approach the jurisdictional High Court and then filed a
statutory appeal before the Allahabad High Court after a delay of 697
days. It will be relevant to refer to the following observations in Neeraj
Jhanji (supra):
“3. The very filing of writ petition by the petitioner in the Delhi
High Court against the order-in-original passed by the
Commissioner of Customs, Kanpur indicates that the petitioner
took a chance in approaching the High Court at Delhi which had
no territorial jurisdiction in the matter. We are satisfied that filing
of the writ petition or for that matter, appeal before the Delhi
High Court was not at all bona fide. We are in agreement with the
observations made by the Allahabad High Court in the impugned
order [Neeraj Jhanji v. CCE & Customs, Custom Appeal
Defective 16 of 2012, order dated 6-8-2012 (All)]. The Allahabad
High Court
has rightly dismissed the petitioner’s application of
condonation of delay and consequently the appeal as time barred.”
79. It is thus clear, that this Court found, that the petitioner therein
had adopted tactics of taking chances by approaching High Court of
Delhi, which had no territorial jurisdiction. As such, it was found, that
neither the writ petition nor the appeal before the Delhi High Court could
be construed to be a bona fide. It was further noticed, that there was
an inordinate delay of 697 days. It is thus apparent, that the petitioner
therein had not satisfied the necessary conditions for applicability of
Section 14.
80. In the present case, as already discussed herein above, the
petitioner was bona fide prosecuting his remedy before the High Court
and that too with due diligence. As such, the said judgment also would
be of no avail to the case of the appellants.
81. The judgment of this Court in the case of Ketan V. Parekh
(supra) is relied upon by both the parties. The question, that arose for
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consideration in the said case was with regard to applicability of Section
14 of the Limitation Act to an Appeal from Order of an Appellate Tribunal
as provided under Section 35 of the Foreign Exchange Management
Act, 1999. This Court relying on the earlier judgment in the case of
Consolidated Engineering Enterprises (supra) and State of
Goa vs. Western Builders35 held, that Section 14 can be invoked in an
appropriate case for exclusion of the time, during which the aggrieved
person may have prosecuted with due diligence a remedy before a wrong
forum. However, on facts and on the averments made in the pleadings,
this Court came to the conclusion, that there was not even a whisper in
the applications filed by the appellants, that they had been prosecuting
remedy before a wrong forum i.e. the Delhi High Court with due diligence
and in good faith. It will be relevant to refer to the following paragraphs
of the said judgment.
“32. There is another reason why the benefit of Section 14 of the
Limitation Act cannot be extended to the appellants. All of them
are well conversant with various statutory provisions including
FEMA. One of them was declared a notified person under Section
3(2) of the Special Court (Trial of Offences Relating to
Transactions in Securities) Act, 1992 and several civil and criminal
cases are pending against him. The very fact that they had engaged
a group of eminent advocates to present their cause before the
Delhi and the Bombay High
Courts shows that they have the
assistance of legal experts and this seems to be the reason why
they invoked the jurisdiction of the Delhi High Court and not of
the Bombay High Court despite the fact that they are residents of
Bombay and have been contesting other matters including the
proceedings pending before the Special Court at Bombay. It also
appears that the appellants were sure that keeping in view their
past conduct, the Bombay High Court may not interfere with the
order of the Appellate Tribunal. Therefore, they took a chance
before the Delhi High Court and succeeded in persuading the
learned Single Judge of the Court to entertain their prayer for
stay of further proceedings before the Appellate Tribunal. The
promptness with which the learned Senior Counsel appearing for
the appellant, Kartik K. Parekh made a statement before the Delhi
High Court on 7-11-2007 that the writ petition may be converted
into an appeal and considered on merits is a clear indication of the
35 (2006) 6 SCC 239
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appellant’s unwillingness to avail remedy before the High Court
i.e. the Bombay High Court which had the exclusive jurisdiction
to entertain an appeal under Section 35 of the Act.
33. It is not possible to believe that as on 7-11-2007, the appellants
and their advocates were not aware of the judgment of this Court
in Ambica Industries v. CCE [(2007) 6 SCC 769] whereby
dismissal of the writ petition by the Delhi High Court on the ground
of lack of territorial jurisdiction was confirmed and it was observed
that the parties cannot be allowed to indulge in forum shopping. It
has not at all surprised us that after having made a prayer that the
writ petitions filed by them be treated as appeals under Section
35, two of the appellants filed applications for recall of that order.
No doubt, the learned Single Judge accepted their prayer and the
Division Bench confirmed the order of the learned Single Judge
but the manner in which the appellants prosecuted the writ petitions
before the Delhi High Court leaves no room for doubt that they
had done so with the sole object of delaying compliance with the
direction given by the Appellate Tribunal and by no stretch of
imagination it can be said that they were bona fide prosecuting
remedy before a wrong forum. Rather, there was total absence
of good faith, which is sine qua non for invoking Section 14 of the
Limitation Act.”
82. It is thus clear, that the appellants therein were
indulging into
a practice of taking chances. They had approached Delhi High Court,
which totally lacked territorial jurisdiction and had not approached Bombay
High Court though they were residents of Bombay and had been
contesting other matters including the proceedings pending before the
Special Court at Bombay. It has been observed, that keeping in view
their past conduct, Bombay High Court might not have interfered with
the order of the Appellate Tribunal. Therefore, they took a chance before
Delhi High Court and succeeded in persuading the learned Single Judge
of that Court to entertain their prayer for stay of further proceedings
before the Appellate Tribunal. This Court further observed, that the
promptness with which the statement was made on behalf of the
appellants, that the writ petition may be converted into an appeal was a
clear indication of the appellant’s unwillingness to avail remedy before
the High Court of Bombay which had the exclusive jurisdiction to entertain
an appeal under Section 35 of the Act.
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83. In the present case, the facts are totally contrary. KIAL had
approached the High Court of Bombay making a specific grievance,
that NCLT had adopted a procedure which was in breach of the principles
of natural justice. It is specifically mentioned in the writ petition, that
though an alternate remedy was available to it, it was approaching the
High Court since the issue with regard to functioning of NCLT also fell
for consideration. The proceedings before the High Court were hotly
contested and by an elaborate judgment, the High Court dismissed the
writ petition relegating the petitioner therein i.e. KIAL to an alternate
remedy available in law. It is thus apparently clear, that KIAL was bona
fide prosecuting a remedy before the High Court in good faith and with
due diligence. In a given case, the High Court could have exercised
jurisdiction under Article 226 of the Constitution inasmuch as, the
grievance was regarding procedure followed by NCLT to be in breach
of principles of natural justice. That would come within the limited area
earmarked by this Court for exercise of extraordinary jurisdiction under
Article 226 despite availability of an alternate remedy.
84. This Court recently in the judgment of Embassy Property
Developments Pvt. Ltd. vs. State of Karnataka and Others36 had an
occasion to consider a similar issue. We find it apposite to refer to the
question framed by this Court, which reads thus:
“i) Whether the High Court ought to interfere,
under Article 226/
227 of the Constitution, with an order passed by the National
Company Law Tribunal in a proceeding under the Insolvency and
Bankruptcy Code, 2016, ignoring the availability of a statutory
remedy of appeal to the National Company Law Appellate Tribunal
and if so, under what circumstances.”
85. It will also be apposite to reproduce the answer given by this
Court.
“47. Therefore, in fine, our answer to the first question would be
that NCLT did not have jurisdiction to entertain an application
against the Government of Karnataka for a direction to execute
Supplemental Lease Deeds for the extension of the mining lease.
Since NCLT chose to exercise a jurisdiction not vested in it in
law, the High Court of Karnataka was justified in entertaining the
writ petition, on the basis that NCLT was coram non judice.”
36 2019 SCC Online 1542
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We therefore have no hesitation to hold, that KIAL was entitled
to extension of the period during which it was bona fide prosecuting a
remedy before the High Court with due diligence.
(ii) 
WHETHER 
THERE 
WAS 
WAIVER 
AND
ACQUIESCENCE BY KIAL SO AS TO ESTOP IT FROM
CHALLENGING THE PARTICIPATION OF KALPRAJ?
86. It is strenuously urged on behalf of the appellants, that under
clause 10.4 of the Process Memorandum, if any Resolution Plan is
received by RP from any eligible applicant(s) at any stage of the Resolution
Plan Process, RP is free to examine any resolution plan with the approval
of CoC and the applicant will not have any right to object to the submission
or consideration of such plan. It is further submitted, that even under
clause 11.2 of the Process Memorandum, RP or CoC, at their sole
discretion, may request for additional information/documents and/or seek
clarification from the resolution applicant after the due date for submission
of the plan. It is further submitted, that delay in submission of additional
information and/or documents sought by RP, CoC or the Process Manager
would entitle RP, CoC or the Process Manager to reject the resolution
plan.
87. It was further submitted by the appellants, that KIAL, in a
letter submitted along with the resolution plan to RP, had expressly waived
any and all claims with respect to the Resolution Plan Process. Not only
that, but KIAL had submitted its revised plans
twice after Kalpraj was
permitted to participate in the proceedings. It is therefore submitted, that
since KIAL had expressly waived all its claims and had also submitted
its revised plans, after Kalpraj entered into the fray, it was not entitled to
raise any grievance. It is submitted, that the principles of waiver and
acquiescence are squarely applicable in the present case. It was also
submitted on behalf of the appellants, that the revised plans, submitted
by KIAL, were submitted without mentioning, that it was without prejudice
and as such, it was not entitled to make any grievance on that count.
88. It is submitted, that the approach adopted by KIAL amounted
to taking chances, as after having failed in the process, challenging the
same would not be permissible in law. It is also contended that during
the 12th meeting of CoC, Kotak Bank, of which KIAL is a 100%
subsidiary, also agreed with CoC counsel’s view, that Kalpraj’s resolution
plan can be considered.
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89. It could thus be seen, that the main thrust of the arguments
advanced on behalf of the appellants with regard to waiver and
acquiescence is on two grounds, viz., (i) clause 10.4 of the Process
Memorandum read with paragraph 5(b) of the covering letter for
submission of resolution plan by KIAL, and (ii) participation of KIAL in
the process after Kalpraj was permitted to participate in the process.
90. We may refer to clause 10.4 of the Process Memorandum
and paragraph 5(b) of the covering letter for submission of resolution
plan by KIAL, which read thus:
Clause 10.4 of the Process Memorandum
“if any Resolution Plan is received by the Resolution professional
from any eligible Applicant(s) at any stage of the Resolution Plan
Process, the Resolution professional shall be free to examine such
Resolution Plan with the approval of the Committee of Creditors
and the Applicant(s) will not have any right to object to submission
or consideration of such plan.”
Paragraph 5(b) of the covering letter for submission of
resolution plan by KIAL.
“5. We further represent and confirm as follows:
(a) …..
(b) Acceptance
We hereby unconditionally and irrevocably agree and accept the
terms of the Process Memorandum and that the decision made
by the CoC, Resolution professional and/or the Adjudicating
Authority in respect of any matter with respect to, or arising out
of, the Process Memorandum and the Resolution Plan Process
shall be binding on us. We hereby expressly waive
any and all
claims in respect of the Resolution Plan Process.”
91. On the basis of clause 10.4, it is sought to be urged, that even
if the Resolution Plan is received by RP from any eligible applicant(s) at
any stage of the Resolution Plan Process, RP was free to examine such
Resolution Plan with the approval of CoC and the applicant(s) will not
have any right to object to submission or consideration of such plan.
92. On the basis of paragraph 5(b) of the covering letter for
submission of resolution plan by KIAL, it is sought to be urged, that
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KIAL had unconditionally and irrevocably agreed and accepted the terms
of the Process Memorandum and the decision made by CoC, RP and/or
the Adjudicating Authority in respect of any matter with respect to, or
arising out of, the Process Memorandum and the Resolution Plan
Process. It is further sought to be urged, that KIAL had agreed to
surrender all and any of its claim in respect of the Resolution Plan Process.
It is sought to be urged, that this stipulation amounts to a concluded
contract between the parties and having waived its all claims, KIAL is
not permitted in law to challenge the participation of Kalpraj in respect
of Resolution Plan Process.
93. In this respect, it will be relevant to refer to paragraphs 89 and
90 of the judgment of this Court in the case of Central Inland Water
Transport Corporation Limited and another vs. Brojo Nath Ganguly
and another37.
“89. Should then our courts not advance with the times? Should
they still continue to cling to outmoded concepts and outworn
ideologies? Should we not adjust our thinking caps to match the
fashion of the day? Should all jurisprudential development pass us
by, leaving us floundering in the sloughs of 19th century theories?
Should the strong be permitted to push the weak to the wall?
Should they be allowed to ride roughshod over the weak? Should
the courts sit back and watch supinely while the strong trample
underfoot the rights of the weak? We have a
Constitution for our
country. Our judges are bound by their oath to “uphold the
Constitution and the laws”. The Constitution was enacted to secure
to all the citizens of this country social and economic justice. Article
14 of the Constitution guarantees to all persons equality before
the law and the equal protection of the laws. The principle
deducible from the above discussions on this part of the case is in
consonance with right and reason, intended to secure social and
economic justice and conforms to the mandate of the great equality
clause in Article 14. This principle is that the courts will not enforce
and will, when called upon to do so, strike down an unfair and
unreasonable contract, or an unfair and unreasonable clause in a
contract, entered into between parties who are not equal in
bargaining power. It is difficult to give an exhaustive list of all
bargains of this type. No court can visualize the different situations
37 (1986) 3 SCC 156
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which can arise in the affairs of men. One can only attempt to
give some illustrations. For instance, the above principle will apply
where the inequality of bargaining power is the result of the great
disparity in the economic strength of the contracting parties. It
will apply where the inequality is the result of circumstances,
whether of the creation of the parties or not. It will apply to
situations in which the weaker party is in a position in which he
can obtain goods or services or means of livelihood only upon the
terms imposed by the stronger party or go without them. It will
also apply where a man has no choice, or rather no
meaningful choice, but to give his assent to a contract or to
sign on the dotted line in a prescribed or standard form or to
accept a set of rules as part of the contract, however unfair,
unreasonable and unconscionable a clause in that contract
or form or rules may be. This principle, however, will not apply
where the bargaining power of the contracting parties is equal or
almost equal. This principle may not apply where both parties are
businessmen and the contract is a commercial transaction. In
today’s complex world of giant corporations with their vast
infrastructural organizations and with the State through its
instrumentalities and agencies entering into almost every branch
of industry and commerce, there can be myriad situations which
result in unfair and unreasonable bargains between parties
possessing wholly
disproportionate and unequal bargaining power.
These cases can neither be enumerated nor fully illustrated. The
court must judge each case on its own facts and circumstances.”
[emphasis supplied]
94. This Court has held, that the courts will not enforce and will,
when called upon to do so, strike down an unfair and unreasonable
contract, or an unfair and unreasonable clause in a contract, entered into
between parties who are not equal in bargaining power. It has been held,
that this principle will apply where a man has no choice, or rather no
meaningful choice, but to give his assent to a contract or to sign on the
dotted line in a prescribed or standard form or to accept a set of rules as
part of the contract, however unfair, unreasonable and unconscionable a
clause in that contract or form or rules may be.
95. Applying the said principles to the facts of the present case,
KIAL had no choice than to accept the terms of the contract. Paragraph
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5(b) of the letter is a part of a covering letter format, which is provided
in the Process Memorandum itself. The covering letter is in Format I
and the party desiring to participate in the Resolution Plan Process has
no other option, than to sign the dotted lines. Hence, the parties cannot
be said to have equal bargaining power and the applicants have no other
choice than to sign on the documents prescribed in the format. Paragraph
5(b) of the covering letter format, requires a party to undertake, that it
will accept all the decisions made by CoC, RP and/or the Adjudicating
Authority and that the decisions taken will be binding on it. It also requires
the applicant, to sign on the document thereby, providing expressly
waiving any and all claims with respect to the Resolution Plan Process.
In turn, it provides for a party to agree to a stipulation, that even if RP or
CoC acts in any manner, which is not permissible in law, still the resolution
applicant would be bound by such a decision and shall waive any or all
its claims in respect of the Resolution Plan Process.
96. The said principle of law has been subsequently followed in
various judgments of this Court including the one in the case of Assistant
General Manager and others vs. Radhey Shyam Pandey38.
97. No doubt, that this Court in Central Inland Water Transport
Corporation Limited (supra) has observed, that the principle laid down
therein may not apply where
both parties are businessmen and the
contract is a commercial transaction. In the first place, RP and the
resolution applicant cannot be said to be the contracting parties having
equal bargaining power. Secondly, since RP functions under the I&B
Code for discharging the duties bestowed upon him and assisting the
process for finalization of resolution plan for survival of the Corporate
Debtor, it cannot be said that it is a purely commercial transaction between
RP and the resolution applicant.
98. It may be argued, that the judgment in the case of Central
Inland Water Transport Corporation Limited (supra) arose from a
case involving a statutory corporation, which was an instrumentality of
State within the meaning of Article 12 of the Constitution. However,
recently, this Court in the case of Pioneer Urban Land and
Infrastructure Limited vs. Govindan Raghavan39 while construing
the term of contract between a builder and a flat purchaser observed
thus:
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“6.8. A term of a contract will not be final and binding if it is
shown that the flat purchasers had no option but to sign on the
dotted line, on a contract framed by the builder. The contractual
terms of the agreement dated 8-5-2012 are ex facie one-sided,
unfair and unreasonable. The incorporation of such one-sided
clauses in an agreement constitutes an unfair trade practice as
per Section 2(1)(r) of the Consumer Protection Act, 1986 since it
adopts unfair methods or practices for the purpose of selling the
flats by the builder.”
99. We see no reason, as to why the said principle should not be
applicable when RP and CoC are acting under the statutory provisions
under the Code.
100. We are therefore of the view, in light of the law laid down in
Central Inland Water Transport Corporation Limited (supra), KIAL
cannot be held to be bound by such unconscionable clause in the letter,
which is in a prescribed format.
101. The second ground raised, with regard to waiver and
acquiescence, is based upon the participation of KIAL in the Resolution
Plan Process after Kalpraj was permitted to participate in the proceedings.
102. The word ‘waiver’ has been described in Halsbury’s Laws
of England, 4th Edn., Para 1471, which reads thus:
“1471. Waiver.—Waiver is the abandonment of a right in such a
way that the other party is entitled to plead the abandonment by
way of confession and avoidance if the right is thereafter asserted,
and is either express or implied from
conduct. … A person who is
entitled to rely on a stipulation, existing for his benefit alone, in a
contract or of a statutory provision, may waive it, and allow the
contract or transaction to proceed as though the stipulation or
provision did not exist. Waiver of this kind depends upon consent,
and the fact that the other party has acted on it is sufficient
consideration. …
It seems that, in general, where one party has, by his words or
conduct, made to the other a promise or assurance which was
intended to affect the legal relations between them and to be acted
on accordingly, then, once the other party has taken him at his
word and acted on it, so as to alter his position, the party who
gave the promise or assurance cannot afterwards be allowed to
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revert to the previous legal relationship as if no such promise or
assurance had been made by him, but he must accept their legal
relations subject to the qualification which he has himself so
introduced, even though it is not supported in point of law by any
consideration.’
(See Halsbury’s Laws of England, 4th Edn., Para 1471.)”
103. In Halsbury’s Laws of England, Vol. 16(2), 4th Edn., Para
907, it is stated:
“The expression ‘waiver’ may, in law, bear different meanings.
The primary meaning has been said to be the abandonment of a
right in such a way that the other party is entitled to plead the
abandonment by way of confession and avoidance if the right is
thereafter asserted, and is either express or implied from conduct.
It may arise from a party making an election, for example whether
or not to exercise a contractual right… Waiver may also be by
virtue of equitable or promissory estoppel; unlike waiver arising
from an election, no question arises of any particular knowledge
on the part of the person making the representation, and the
estoppel may be suspensory only… Where the waiver is not
express, it may be implied from conduct which is inconsistent
with the continuance of the right, without the need for writing or
for consideration moving from, or detriment to, the party who
benefits by the waiver, but mere acts of indulgence will not amount
to waiver; nor may a party benefit from the waiver unless he has
altered his position in reliance on it.”
104. For considering, as to whether a party has waived its rights
or not, it will be relevant to consider the conduct of a party. For establishing
waiver, it will have to be established, that a party expressly or by its
conduct acted in a manner, which is inconsistent with the continuance of
its rights. However, the mere acts of indulgence will not amount to waiver.
A party claiming waiver would also not be entitled to claim the benefit of
waiver, unless it has altered its position in reliance on the same.
105. As early as in 1957 in the case of Manak Lal vs. Dr. Prem
Chand40 an advocate was held guilty for professional misconduct by a
Tribunal of Three Members. The matter was argued before the High
Court. An objection was taken before the High Court, that one of the
40 1957 SCR 575 = AIR 1957 SC 425
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members had appeared on behalf of the complainant and therefore, he
was disqualified from acting as a member of the Tribunal. A question
arose before this Court, that since such an objection was not taken before
the Tribunal, whether it amounted to waiver. This Court observed thus:
“It is true that waiver cannot always and in every case be inferred
merely from the failure of the party to take the objection. Waiver
can be inferred only if and after it is shown that the party knew
about the relevant facts and was aware of his right to take the
objection in question. As Sir John Romilly, M.R., has observed
in Vyvyan v. Vyvyan [(1861) 30 Beav 65, 74 : 54 ER 813, 817]
“waiver or acquiescence, like election, presupposes that the person
to be bound is fully cognizant of his rights, and, that being so, he
neglects to enforce them, or chooses one benefit instead of another,
either, but not both, of which he might claim”.
106. It has been held, that a waiver cannot always and in every
case be inferred merely from the failure of the party to take the objection.
Waiver can be inferred, only if and after it is shown that the party knew
about the relevant facts and was aware of his right to take the objection
in question. The waiver or acquiescence, like election, presupposes, that
the person to be bound is fully cognizant of his rights, and that being so,
he neglects to enforce them, or chooses one benefit instead of another.
107. As such, for applying the principle
of waiver, it will have to
be established, that though a party was aware about the relevant facts
and the right to take an objection, he has neglected to take such an
objection.
108. In the case of Krishna Bahadur vs. Purna Theatre and
others41, the appellant was appointed in the post of messenger-cum-
bearer in the establishment of the respondent. A disciplinary proceeding
was initiated against him wherein, he was found guilty and he was
dismissed from service. The Industrial Tribunal set aside the dismissal
with full back wages and compensation. The appellant was permitted to
join his duties but back wages were not paid. He was again retrenched
from services and a sum of Rs.9,030/- was paid as retrenchment
compensation, which the appellant was said to have received under
protest. A trade union took the cause of the appellant, inter alia, on the
ground of contravention of Section 25-G of the Industrial Disputes Act,
41 (2004) 8 SCC 229
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1947, so also on the ground of insufficiency of the amount of compensation
paid to the appellant in terms of Section 25-F(b) thereof. An industrial
dispute was raised before the Assistant Labour Commissioner, which
failed, whereupon the Industrial Tribunal was approached by the
appellant. In the meantime, the appellant had also initiated a proceeding
under Section 33-C(2) of the Industrial Disputes Act, 1947 which ended
in an amicable settlement, according to which, the appellant agreed to
receive a sum of Rs.39,000/- as full and final settlement.
109. However, in the proceedings initiated by the trade union, the
retrenchment was held to be illegal and he was directed to be deemed to
be in continuous service with all benefits. A writ petition was filed by the
respondent before the High Court. The said writ petition was dismissed
by the single judge of the High Court, upholding the findings of the Tribunal.
In an appeal before the Division bench, a plea was taken for the first
time, that the workman had accepted the amount paid by the employer
and as such, it amounted to waiver by the workman. The Division Bench
allowed the appeal and set aside the award passed by the Tribunal and
the judgment and order passed by the single judge. Setting aside the
judgment of the Division Bench, this Court observed thus:
“9. The principle of waiver although is akin to the principle of
estoppel; the difference between the two, however,
is that whereas
estoppel is not a cause of action; it is a rule of evidence; waiver is
contractual and may constitute a cause of action; it is an agreement
between the parties and a party fully knowing of its rights has
agreed not to assert a right for a consideration.
10. A right can be waived by the party for whose benefit certain
requirements or conditions had been provided for by a statute
subject to the condition that no public interest is involved therein.
Whenever waiver is pleaded it is for the party pleading the same
to show that an agreement waiving the right in consideration of
some compromise came into being. Statutory right, however, may
also be waived by his conduct.”
110. This Court has thus held, that the principle of waiver although
is akin to the principle of estoppel; estoppel is not a cause of action and
is a rule of evidence, whereas waiver is contractual and may constitute
a cause of action. It is an agreement between the parties and a party
fully knowing of its rights has agreed not to assert a right for a
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consideration. It is further held, that whenever waiver is pleaded, it is for
the party pleading the same to show that an agreement waiving the right
in consideration of some compromise came into being.
111. This Court in the case of State of Punjab vs. Davinder Pal
Singh Bhullar and others42 had an occasion to consider an issue, as to
when an issue of bias was not raised by the party at the earliest possible,
if it is aware of it and knows its right to raise the said issue, would it
amount to waiver or not. This Court while considering the earlier
judgments observed thus:
“II. Doctrine of waiver
37. In Manak Lal [AIR 1957 SC 425] this Court held that
alleged bias of a Judge/official/Tribunal does not render the
proceedings invalid if it is shown that the objection in that regard
and particularly against the presence of the said official in question,
had not been taken by the party even though the party knew about
the circumstances giving rise to the allegations about the alleged
bias and was aware of its right to challenge the presence of such
official. The Court further observed that: (SCC p. 431, para 8)
“8. … waiver cannot always and in every case be
inferred merely from the failure of the party to take the
objection. Waiver can be inferred only if and after it is shown
that the party knew about the relevant facts and was aware of
his right to take the objection in question.”
38. Thus, in a given case if a party knows the material
facts and is
conscious of his legal rights in that matter, but fails to
take the plea of bias at the earlier stage of the proceedings, it
creates an effective bar of waiver against him. In such facts and
circumstances, it would be clear that the party wanted to take a
chance to secure a favourable order from the official/court and
when he found that he was confronted with an unfavourable order,
he adopted the device of raising the issue of bias. The issue of
bias must be raised by the party at the earliest. (See Pannalal
Binjraj v. Union of India [AIR 1957 SC 397] and P.D.
Dinakaran (1) v. Judges Enquiry Committee [(2011) 8 SCC
380].)
42 (2011) 14 SCC 770
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39. In Power Control Appliances v. Sumeet Machines (P)
Ltd. [(1994) 2 SCC 448] this Court held as under: (SCC p. 457,
para 26)
“26. Acquiescence is sitting by, when another is invading
the rights…. It is a course of conduct inconsistent with the
claim…. It implies positive acts; not merely silence or inaction
such as involved in laches. … The acquiescence must be such
as to lead to the inference of a licence sufficient to create a
new right in the defendant….”
40. Inaction in every case does not lead to an inference of
implied consent or acquiescence as has been held by this Court
in P. John Chandy & Co. (P) Ltd. v. John P. Thomas [(2002) 5
SCC 90]. Thus, the Court has to examine the facts and
circumstances in an individual case.
41. Waiver is an intentional relinquishment of a right. It
involves conscious abandonment of an existing legal right,
advantage, benefit, claim or privilege, which except for such a
waiver, a party could have enjoyed. In fact, it is an agreement not
to assert a right. There can be no waiver unless the person who is
said to have waived, is fully informed as to his rights and with full
knowledge about the same, he intentionally abandons them.
(Vide Dawsons Bank Ltd. v. Nippon Menkwa Kabushiki
Kaisha [(1934-35) 62 IA 100 : AIR 1935 PC 79], Basheshar
Nath v. CIT [AIR 1959 SC 149], Mademsetty Satyanarayana
v. G. Yelloji Rao [AIR 1965 SC 1405], Associated Hotels of
India Ltd. v. S.B. Sardar Ranjit
Singh [AIR 1968 SC
933], Jaswantsingh Mathurasingh v. Ahmedabad Municipal
Corpn. [1992 Supp (1) SCC 5], Sikkim Subba Associates v. State
of Sikkim [(2001) 5 SCC 629 : AIR 2001 SC 2062] and Krishna
Bahadur v. Purna Theatre [(2004) 8 SCC 229 : 2004 SCC (L&S)
1086 : AIR 2004 SC 4282].)
42. This Court in Municipal Corpn. of Greater
Bombay v. Dr Hakimwadi Tenants’ Assn. [1988 Supp SCC 55 :
AIR 1988 SC 233] considered the issue of waiver/acquiescence
by the non-parties to the proceedings and held: (SCC p. 65, paras
14-15)
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“14. In order to constitute waiver, there must be
voluntary and intentional relinquishment of a right. The essence
of a waiver is an estoppel and where there is no estoppel,
there is no waiver. Estoppel and waiver are questions of conduct
and must necessarily be determined on the facts of each case.
…
15. There is no question of estoppel, waiver or
abandonment. There is no specific plea of waiver, acquiescence
or estoppel, much less a plea of abandonment of right. That
apart, the question of waiver really does not arise in the case.
Admittedly, the tenants were not parties to the earlier
proceedings. There is, therefore, no question of waiver of rights
by Respondents 4-7 nor would this disentitle the tenants from
maintaining the writ petition.”
43. Thus, from the above, it is apparent that the issue of
bias should be raised by the party at the earliest, if it is aware of it
and knows its right to raise the issue at the earliest, otherwise it
would be deemed to have been waived. However, it is to be kept
in mind that acquiescence, being a principle of equity must be
made applicable where a party knowing all the facts of bias, etc.
surrenders to the authority of the Court/Tribunal without raising
any objection. Acquiescence, in fact, is sitting by, when another is
invading the rights. The acquiescence must be such as to lead to
the inference of a licence sufficient to create rights in other party.”
112. Thus, for constituting acquiescence or waiver it must
be
established, that though a party knows the material facts and is conscious
of his legal rights in a given matter, but fails to assert its rights at the
earliest possible opportunity, it creates an effective bar of waiver against
him. Whereas, acquiescence would be a conduct where a party is sitting
by, when another is invading his rights. The acquiescence must be such
as to lead to the inference of a licence sufficient to create a new right in
the defendant. Waiver is an intentional relinquishment of a right. It involves
conscious abandonment of an existing legal right, advantage, benefit,
claim or privilege. It is an agreement not to assert a right. There can be
no waiver unless the person who is said to have waived, is fully informed
as to his rights and with full knowledge about the same, he intentionally
abandons them.
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113. In the case of Galada power and Telecommunication
limited vs. United India Insurance Company Limited and another43,
this Court had an occasion to consider the question, as to whether the
insurer has waived its right on the basis of claim hit by clause relating to
duration.
114. On the facts, holding, that the case was a case of waiver, this
Court observed thus:
“18. In the instant case, the insurer was in custody of the policy.
It had prescribed the clause relating to duration. It was very much
aware about the stipulation made in Clauses 5(3) to 5(5), but despite
the stipulations therein, it appointed a surveyor. Additionally, as
has been stated earlier, in the letter of repudiation, it only stated
that the claim lodged by the insured was not falling under the
purview of transit loss. Thus, by positive action, the insurer has
waived its right to advance the plea that the claim was not
entertainable because conditions enumerated in duration clause
were not satisfied. In our considered opinion, the National
Commission could not have placed reliance on the said terms to
come to the conclusion that there was no policy cover in existence
and that the risks stood not covered after delivery of goods to the
consignee.”
115. In the background of this legal position, we will have to
examine, as to whether the conduct of KIAL can be said to be of such
a nature, which would amount to acquiescence or waiver.
116. The dates
are not in dispute. As per the invitation of EOI
published on 9.7.2018, the last date for submission of EOI was 8.8.2018.
The first Form ‘G’ was also issued on 9.7.2018, according to which, the
last date for submission of resolution plan was 21.9.2018. KIAL had
submitted its EOI on 7.8.2018. First Process Memorandum was issued
on 17.8.2018. However, since there was no response, four more Form
‘G’ were issued on various dates. The last of such Form ‘G’ was issued
on 11.12.2018, according to which the last date for submission of
resolution plan was 8.1.2019. KIAL submitted its resolution plan on
8.1.2019. Subsequently, Kalpraj submitted its resolution plan on 27.1.2019.
117. On KIAL coming to know about the same, on 29.1.2019
itself, it had sent an email protesting to RP against acceptance of belated
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resolution plan of Kalpraj. The said email dated 29.1.2019 sent by KIAL
to RP reads thus:
“As you are aware, that the last date for submission of the bids
for Ricoh India Limited, under the CIRP was 8th January, 2019.
Consequently, we duly submitted our bid (along with the requisite
Bid Bond Guarantee) within the said time. However, we are given
to understand that you have been receiving and accepting the
bids even after the said date, when no extension of time (filing of
Form ‘G’) was notified.
This severely jeopardises our position and is against the spirit of
the code, especially when our Resolution Plan was opened
immediately (along with the commercials) and subsequently, even
discussed at length in the meeting of 15th January, 2019, which
was attended by various stakeholders.
In this light, we would request you to share with us the requisite
notification (Form G) towards extension of time for bid submission
at the earliest. However, in the event, such a notification has not
been made, it would only be logical that all plans submitted after
8th January, 2019 should be held invalid, more so when our plan
has now been opened.
We look forward to your confirmation on the above.”
118. It could therefore be seen, that immediately within a day of
the submission of the plan by Kalpraj, KIAL objected to the acceptance
of its plan after 8.1.2019, when no extension of time for the same was
notified. It is specifically stated, that the said severely jeopardized
its
position and was against the spirit of the Code, especially when KIAL’s
resolution plan was opened immediately and discussed at length with
various stakeholders. KIAL has therefore requested for sharing the
requisite information providing for extension of time for bid submission.
It is further stated, that in the event no such notification was issued, all
plans submitted after 8.1.2019 should be held to be invalid.
119. After the said email was addressed by KIAL to RP, it received
an email from RP on 30.1.2019. It is stated in the said email dated
30.1.2019, that subsequent to the resolution plan submitted on 8.1.2019,
CoC’s representative and RP had a detailed discussion with its team on
the changes required to be made in the resolution plan. Vide the said
email dated 30.1.2019, KIAL was requested to submit the amended
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resolution plan by 3 p.m. on 1.2.2019. On 1.2.2019, left with no choice,
KIAL submitted its revised resolution plan.
120. On 10.2.2019, KIAL sent another email to RP, which reads
thus:
“It has been quite sometime, since we sought from you on your
decision to accept another resolution plan well after the expiry of
the deadline for submission of the same.
As pointed out earlier, such an action, after opening of our bid and
having detailed discussions on the same is not only prejudicial to
our interests but also against the spirit of the IBC code.
The code provides equal treatment to all potential resolution
applicants within the framework of law and fixes personal
responsibilities upon COC members and RPs in the event instances
of discrimination or departure from the established law are found.
We would request a quick response to our query from you on the
subject.”
121. In the said email dated 10.2.2019 sent by KIAL, it was stated,
that it has been quite sometime, that it had sought a response from RP
on his decision to accept another resolution plan well after the expiry of
the deadline for submission of the same. It was reiterated, that such an
action, after opening of the bids and having detailed discussions on the
same was not only prejudicial to its interest but against the spirit of the
I&B Code. It was reiterated, that the I&B Code, provides equal treatment
to all potential resolution applicants within the
framework of law and
fixes personal responsibilities upon CoC members and RPs in the event
of instances of discrimination or departure from the established law.
122. Perusal of the record would reveal, that RP had replied to
KIAL by email dated 11.2.2019. It was stated in the said email, that his
act of acceptance of resolution plans, submitted after the due date, was
under the overall supervision of CoC and as per the opinion given by
CoC’s legal counsel and RP’s legal counsel. It was also submitted, that
this was in the spirit of value maximisation of assets of the Corporate
Debtor.
123. It is in dispute, as to whether RP had again directed KIAL
and Kalpraj vide email dated 11.2.2019 to submit revised plan. It is asserted
on behalf of the KIAL, that such email was received by it, whereas it is
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denied by RP. In any event, it is not in dispute, that both KIAL and
Kalpraj submitted their revised plans on 12.2.2019.
124. On 13/14.2.2019, the resolution plan of Kalpraj was accepted
by CoC. On 18.2.2019, RP filed M.A. No.691 of 2019 before NCLT for
approval of the resolution plan of Kalpraj. KIAL filed its M.A. No. 1039
of 2019 on 14.3.2019 before the Adjudicating Authority objecting to the
approval of resolution plan of Kalpraj.
125. It could thus be clearly seen, that KIAL had raised its objection
immediately after the Kalpraj submitted its resolution plan. Not only that,
but, it had also reiterated its objection to the participation of Kalpraj.
Insofar as, submission of amended plans is concerned, it had no other
option than to submit its revised plan. This is specifically so in view of
clause 11.2, which reads thus:
“11.2 No change or supplemental information to the Resolution
Plan shall be accepted after the Resolution Plan Due Date, unless
agreed otherwise by the Resolution Professional (in consultation
with the Committee of Creditors). The Resolution Professional or
the CoC may, at their sole discretion, request for additional
information/document and/or seek clarifications from a Resolution
Applicant after the Resolution Plan Due Date. Delay in submission
of additional information and/or documents sought by the
Resolution Professional, the CoC or the Process Manager shall
make the Resolution Plan liable for rejection.”
126. It is thus clear
that, had KIAL not responded to the email of
RP and submitted its revised plan, it had to run the risk of being out of
fray.
127. Dr. Singhvi, learned Senior Counsel appearing on behalf of
Kalpraj relied on the judgment of this Court in the case of ITC Limited
vs. Blue Coast Hotels Limited and others (supra), wherein it is held,
that even if a debtor has used the word “without prejudice” it has no
significance. However, in the said case, the debtor had acknowledged
the debt even after action was initiated under the Act and even after
payment of a smaller sum. In this background, it was held, that the words
“without prejudice” would have no significance. As such, the said case
would not be applicable to the facts of the present case.
128. Reliance placed on the judgment of this Court in the case of
Tarapore and Company (supra) would also not be of any assistance to
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the case of the appellants. It will be relevant to refer to the following
observations of this Court in the said case.
“Apart from the technical meaning which the expression “without
prejudice” carries depending upon the context in which it is used,
in the present case on a proper reading of the correspondence
and in the setting in which the term is used, it only means that the
respondent reserved to itself the right to contend before the
arbitrator that a dispute raised or the claim made by the contractor
was not covered by the arbitration clause. No other meaning can
be assigned to it. An action taken without prejudice to one’s right
cannot necessarily mean that the entire action can be ignored by
the party taking the same.”
129. That leaves us with the last submission in this regard made
on behalf of the appellants. It is submitted, that Kotak Bank had
participated in the 12th meeting of CoC dated 13.1.2019 and agreed to
consider resolution plan of Kalpraj in view of clause 10.4 of the Process
Memorandum. It is submitted, that KIAL was a 100% subsidiary of
Kotak Bank and as such, its agreement to consider the resolution plan of
Kalpraj would amount to waiver and acquiescence by KIAL.
130. This question has been squarely answered by this Court in
the case of Vodafone International Holdings BV vs. Union of India
and another44. It will be apposite to refer to the following observation
of this Court:
“257. The legal
relationship between a holding company and WOS
is that they are two distinct legal persons and the holding company
does not own the assets of the subsidiary and, in law, the
management of the business of the subsidiary also vests in its
Board of Directors. In Bacha F. Guzdar v. CIT [AIR 1955 SC
74], this Court held that shareholders’ only right is to get dividend
if and when the company declares it, to participate in the liquidation
proceeds and to vote at the shareholders’ meeting. Refer also
to Carew and Co. Ltd. v. Union of India [(1975) 2 SCC 791]
and Carrasco Investments Ltd. v. Directorate of Enforcement
[(1994) 79 Comp Cas 631 (Del)].”
131. In view of the aforesaid observation, the objection in this
regard deserves to be rejected.
44 (2012) 6 SCC 613
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132. Taking into consideration the fact, that KIAL had objected to
participation of any other applicant submitting plan after the due date as
per the last Form ‘G’ and also reiterated its objection, we are of the
considered view, that it cannot be held, that having participated by
submitting the revised plans, KIAL is estopped from challenging the
process on the ground of acquiescence and waiver. Merely because,
the revised plans are not submitted with the words “without prejudice”,
in our view, would not make any difference. As already discussed
hereinabove, KIAL had no other option than to submit its revised plans
in view of clause 11.2 of the Process Memorandum. Inasmuch as, had it
not responded, it had to run the risk of being out of fray. As already
discussed hereinabove, the conduct of the party is relevant for
considering, whether it can be held, that a case is made out of waiver or
acquiescence.
133. None of the appellants have been in a position to establish,
that KIAL had given up/surrendered its rights to take recourse to the
legal remedies. In any case, the appellants had also not been in a position
to establish, that on account of any such waiver or acquiescence any of
the appellants had altered their position to their detriment.
134. As such, it cannot be held, that KIAL had waived or
acquiesced its rights to challenge the decision of RP or CoC.
(iii) WHETHER NCLAT WAS RIGHT IN LAW IN
INTERFERING WITH THE DECISION OF COC OF ACCEPTING
THE
RESOLUTION PLAN OF KALPRAJ?
135. For deciding the said issue, it will be apposite to refer to
Section 30 and 31 of the I&B Code, which read thus:
“30. Submission of resolution plan.—(1) A resolution
applicant may submit a resolution plan along with an affidavit
stating that he is eligible under Section 29-A to the resolution
professional prepared on the basis of the information memorandum.
(2) The resolution professional shall examine each resolution
plan received by him to confirm that each resolution plan—
(a)
provides for the payment of insolvency resolution process
costs in a manner specified by the Board in priority to
the payment of other debts of the corporate debtor;
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 (b)
provides for the payment of debts of operational creditors
in such manner as may be specified by the Board which
shall not be less than—
(i)
the amount to be paid to such creditors in the event
of a liquidation of the corporate debtor under Section
53; or
(ii)
the amount that would have been paid to such
creditors, if the amount to be distributed under the
resolution plan had been distributed in accordance
with the order of priority in sub-section (1) of Section
53,
whichever is higher, and provides for the payment of
debts of financial creditors, who do not vote in favour of
the resolution plan, in such manner as may be specified by
the Board, which shall not be less than the amount to be
paid to such creditors in accordance with sub-section (1)
of Section 53 in the event of a liquidation of the corporate
debtor.
Explanation 1.—For the removal of doubts, it is
hereby clarified that a distribution in accordance with the
provisions of this clause shall be fair and equitable to such
creditors.
Explanation 2.—For the purposes of this clause, it
is hereby declared that on and from the date of
commencement of the Insolvency and Bankruptcy Code
(Amendment) Act, 2019, the provisions of this clause shall
also apply to the corporate insolvency resolution process of
a corporate debtor—
(i)
where a resolution plan has not been approved or
rejected by the Adjudicating Authority;
(ii)
where an appeal has been preferred under
Section
61 or Section 62 or such an appeal is not time barred
under any provision of law for the time being in force;
or
(iii)
where a legal proceeding has been initiated in any
court against the decision of the Adjudicating
Authority in respect of a resolution plan;]
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(c)
provides for the management of the affairs of the corporate
debtor after approval of the resolution plan;
(d)
the implementation and supervision of the resolution plan;
(e)
does not contravene any of the provisions of the law for
the time being in force;
(f)
conforms to such other requirements as may be specified
by the Board.
Explanation.—For the purposes of clause (e), if any
approval of shareholders is required under the Companies Act,
2013 (18 of 2013) or any other law for the time being in force for
the implementation of actions under the resolution plan, such
approval shall be deemed to have been given and it shall not be a
contravention of that Act or law.
(3) The resolution professional shall present to the committee
of creditors for its approval such resolution plans which confirm
the conditions referred to in sub-section (2).
(4) The committee of creditors may approve a resolution
plan by a vote of not less than sixty-six per cent of voting share of
the financial creditors, after considering its feasibility and
viability, the manner of distribution proposed, which may take into
account the order of priority amongst creditors as laid down in
sub-section (1) of Section 53, including the priority and value of
the security interest of a secured creditor] and such other
requirements as may be specified by the Board:
Provided that the committee of creditors shall not approve
a resolution plan, submitted before the commencement of the
Insolvency
and Bankruptcy Code (Amendment) Ordinance, 2017,
where the resolution applicant is ineligible under Section 29-A
and may require the resolution professional to invite a fresh
resolution plan where no other resolution plan is available with it:
Provided further that where the resolution applicant referred
to in the first proviso is ineligible under clause (c) of Section 29-A,
the resolution applicant shall be allowed by the committee of
creditors such period, not exceeding thirty days, to make payment
of overdue amounts in accordance with the proviso to clause (c)
of Section 29-A:
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Provided also that nothing in the second proviso shall be
construed as extension of period for the purposes of the proviso
to sub-section (3) of Section 12, and the corporate insolvency
resolution process shall be completed within the period specified
in that sub-section.]
Provided also that the eligibility criteria in Section 29-A as
amended by the Insolvency and Bankruptcy Code (Amendment)
Ordinance, 2018 (Ord. 6 of 2018) shall apply to the resolution
applicant who has not submitted resolution plan as on the date of
commencement of the Insolvency and Bankruptcy Code
(Amendment) Ordinance, 2018.
(5) The resolution applicant may attend the meeting of the
committee of creditors in which the resolution plan of the applicant
is considered:
Provided that the resolution applicant shall not have a right
to vote at the meeting of the committee of creditors unless such
resolution applicant is also a financial creditor.
(6) The resolution professional shall submit the resolution
plan as approved by the committee of creditors to the Adjudicating
Authority.
31. Approval of resolution plan.—(1) If the Adjudicating
Authority is satisfied that the resolution plan as approved by the
committee of creditors under sub-section (4) of Section 30 meets
the requirements as referred to in sub-section (2) of Section 30, it
shall by order approve the resolution plan which shall be binding
on the corporate debtor and its employees, members,
creditors, including the Central Government, any State Government
or any local authority to whom a debt in respect of the payment of
dues arising under any law for the time being in force, such as
authorities to whom statutory dues are owed, guarantors and other
stakeholders involved in the resolution plan:
Provided that the Adjudicating Authority shall, before passing
an order for approval of resolution plan under this sub-section,
satisfy that the resolution plan has provisions for its effective
implementation.
(2) Where the Adjudicating Authority is satisfied that the
resolution plan does not confirm to the requirements referred to in
sub-section (1), it may, by an order, reject the resolution plan.
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(3) After the order of approval under sub-section (1),—
(a)
the moratorium order passed by the Adjudicating Authority
under Section 14 shall cease to have effect; and
(b)
the resolution professional shall forward all records relating
to the conduct of the corporate insolvency resolution process
and the resolution plan to the Board to be recorded on its
database.
(4) The resolution applicant shall, pursuant to the resolution
plan approved under sub-section (1), obtain the necessary approval
required under any law for the time being in force within a period
of one year from the date of approval of the resolution plan by the
Adjudicating Authority under sub-section (1) or within such period
as provided for in such law, whichever is later:
Provided that where the resolution plan contains a provision
for combination, as referred to in Section 5 of the Competition
Act, 2002 (12 of 2003), the resolution applicant shall obtain the
approval of the Competition Commission of India under that Act
prior to the approval of such resolution plan by the committee of
creditors.”
136. The aforesaid provisions have been recently considered in
three judgments of this Court. The first one, being in the case of K.
Sashidhar (supra), to which one of us (A.M. Khanwilkar, J.) was a
party, and two other judgments, delivered by three Judges Bench of this
Court, in the cases of Committee of Creditors of Essar Steel India
Limited through Authorised Signatory (supra) and Maharashtra
Seamless Limited vs. Padmanabhan Venkatesh and others45.
137. This Court in the case of Committee of Creditors of Essar
Steel India Limited through Authorised Signatory (supra) has set out
the relevant extracts from the Bankruptcy Law Reforms Committee
(BLRC) Report of 2015, which read thus:
“56. At this juncture, it is important to set out the relevant extracts
from the aforementioned Report:
“2. Executive Summary     *      *      *
The key economic question in the bankruptcy process
***
45 (2020) 11 SCC 467
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The Committee believes that there is only one correct forum
for evaluating such possibilities, and making a decision:
a creditors committee, where all financial creditors have
votes in proportion to the magnitude of debt that they hold.
In the past, laws in India have brought arms of the Government
(legislature, executive or judiciary) into this question. This has
been strictly avoided by the Committee. The appropriate
disposition of a defaulting firm is a business decision, and
only the creditors should make it.
***
5. Process for legal entities    *   *    *
Business decisions by a creditor committee
All decisions on matters of business will be taken by a committee
of the financial creditors. This includes evaluating proposals to
keep the entity as a going concern, including decisions about
the sale of business or units, retiring or restructuring debt. The
debtor will be a non-voting member on the creditors committee,
and will be invited to all meetings. The voting of the creditors
committee will be by majority, where the majority requires more
than 75 per cent of the vote by weight.
***
No prescriptions on solutions to resolve the insolvency
The choice of the solution to keep the entity as a going
concern will be voted on by the creditors committee. There
are no constraints on the proposals that the resolution
professional can present to the creditors committee. Other
than the majority vote of the creditors
committee, the resolution
professional needs to confirm to the Adjudicator that the final
solution complies with three additional requirements. The first
is that the solution must explicitly require the repayment of any
interim finance and costs of the insolvency resolution process
will be paid in priority to other payments. Secondly, the plan
must explicitly include payment to all creditors not on the
creditors committee, within a reasonable period after the
solution is implemented. Lastly, the plan should comply with
existing laws governing the actions of the entity while
implementing the solutions.
***
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5.3.1. Steps at the start of the IRP
***
4. Creation of the creditors committee
The creditors committee will have the power to decide the
final solution by majority vote in the negotiations. The majority
vote requires more than or equal to 75 per cent of the creditors
committee by weight of the total financial liabilities. The
majority vote will also involve a cram down option on any
dissenting creditors once the majority vote is obtained. …
The Committee deliberated on who should be on the creditors
committee, given the power of the creditors committee to
ultimately keep the entity as a going concern or liquidate it. The
Committee reasoned that members of the creditors committee
have to be creditors both with the capability to assess
viability, as well as to be willing to modify terms of existing
liabilities in negotiations. Typically, operational creditors
are neither able to decide on matters regarding the
insolvency of the entity, nor willing to take the risk of
postponing payments for better future prospects for the
entity. The Committee concluded that, for the process to be
rapid and efficient, the Code will provide that the creditors
committee should be restricted to only the financial
creditors.
5.3.3. Obtaining the resolution to insolvency in the IRP
The Committee is of the opinion that there should be freedom
permitted to the overall market to propose solutions on
keeping the entity as a going concern. Since the manner
and the type of possible
solutions are specific to the time and
environment in which the insolvency becomes visible, it is
expected to evolve over time, and with the development of the
market. The Code will be open to all forms of solutions for
keeping the entity going without prejudice, within the rest of
the constraints of the IRP. Therefore, how the insolvency is
to be resolved will not be prescribed in the Code. There
will be no restriction in the Code on possible ways in which the
business model of the entity, or its financial model, or both,
can be changed so as to keep the entity as a going concern. The
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Code will not state that the entity is to be revived, or the
debt is to be restructured, or the entity is to be liquidated.
This decision will come from the deliberations of the
creditors committee in response to the solutions proposed
by the market.”
138. It is thus clear, that the Committee was of the view, that for
deciding key economic question in the bankruptcy process, the only one
correct forum for evaluating such possibilities, and making a decision
was, a creditors committee, wherein all financial creditors have votes in
proportion to the magnitude of debt that they hold. The BLRC has
observed, that laws in India in the past have brought arms of the
Government (legislature, executive or judiciary) into the question of
bankruptcy process. This has been strictly avoided by the Committee
and it has been provided, that the decision with regard to appropriate
disposition of a defaulting firm, which is a business decision, should only
be made by the creditors. It has been observed, that the evaluation of
proposals to keep the entity as a going concern, including decisions about
the sale of business or units, restructuring of debt, etc., are required to
be taken by the Committee of the Financial Creditors. It has been
provided, that the choice of the solution to keep the entity as a going
concern will be voted upon by CoC and there are no constraints on the
proposals that the resolution professional can present to
CoC. The
requirements, that the resolution professional needs to confirm to the
Adjudicator, are:
(i)
that the solution must explicitly require the repayment of any
interim finance and costs of the insolvency resolution process
will be paid in priority to other payments;
(ii)
that the plan must explicitly include payment to all creditors
not on the creditors committee, within a reasonable period
after the solution is implemented; and lastly
(iii)
the plan should comply with existing laws governing the
actions of the entity while implementing the solutions.
139. The Committee also expressed the opinion, that there should
be freedom permitted to the overall market, to propose solutions on
keeping the entity as a going concern. The Committee opined, that the
details as to how the insolvency is to be resolved or as to how the entity
is to be revived, or the debt is to be restructured will not be provided in
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the I&B Code but such a decision will come from the deliberations of
CoC in response to the solutions proposed by the market.
140. This Court in the case of K. Sashidhar (supra) observed
thus:
“32. Having heard the learned counsel for the parties, the moot
question is about the sequel of the approval of the resolution plan
by CoC of the respective corporate debtor, namely, KS&PIPL
and IIL, by a vote of less than seventy-five per cent of voting
share of the financial creditors; and about the correctness of the
view taken by Nclat that the percentage of voting share of the
financial creditors specified in Section 30(4) of the I&B Code is
mandatory. Further, is it open to the adjudicating authority/
appellate authority to reckon any other factor other than
specified in Sections 30(2) or 61(3) of the I&B Code as the
case may be which, according to the resolution applicant and
the stakeholders supporting the resolution plan, may be
relevant?”
(emphasis supplied)
141. After considering the judgment of this Court in the case of
Arcelormittal India Private Limited vs. Satish Kumar Gupta and
others46 and the relevant provisions of the I&B Code, this court further
observed in K. Sashidhar (supra) thus:
“52. As aforesaid, upon receipt of a “rejected” resolution plan
the adjudicating authority (NCLT) is not expected to do anything
more; but is obligated to initiate liquidation process under Section
33(1) of the I&B Code. The legislature has not endowed the
adjudicating authority (NCLT) with the jurisdiction or authority to
analyse or evaluate the commercial decision of CoC much less to
enquire into the justness of the rejection of the resolution plan by
the dissenting financial creditors. From the legislative history and
the background in which the I&B Code has been enacted, it is
noticed that a completely new approach has been adopted for
speeding up the recovery of the debt due from the defaulting
companies. In the new approach, there is a calm period followed
by a swift resolution process to be completed within 270 days
(outer limit) failing which, initiation of liquidation process has been
46 (2019) 2 SCC 1
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made inevitable and mandatory. In the earlier regime, the corporate
debtor could indefinitely continue to enjoy the protection given
under Section 22 of the Sick Industrial Companies Act, 1985 or
under other such enactments which has now been forsaken.
Besides, the commercial wisdom of CoC has been given
paramount status without any judicial intervention, for
ensuring completion of the stated processes within the timelines
prescribed by the I&B Code. There is an intrinsic assumption
that financial creditors are fully informed about the viability
of the corporate debtor and feasibility of the proposed
resolution plan. They act on the basis of thorough examination
of the proposed resolution plan and assessment made by their
team of experts. The opinion on the subject-matter expressed
by them after due deliberations in CoC meetings through
voting, as per voting shares, is a collective business decision.
The legislature, consciously, has not provided any ground to
challenge the “commercial wisdom” of the individual financial
creditors or their collective decision before the adjudicating
authority. That is made non-justiciable.”
(emphasis supplied)
142. This Court has held, that it is not open to the Adjudicating
Authority or Appellate Authority to reckon any other factor other than
specified in Sections 30(2) or 61(3) of the I&B Code. It has further
been held, that the commercial wisdom of CoC has been given paramount