GHANASHYAM MISHRA AND SONS PRIVATE LIMITED THROUGH THE AUTHORIZED SIGNATORY versus EDELWEISS ASSET RECONSTRUCTION COMPANY LIMITED THROUGH THE DIRECTOR & ORS.
[2021] 13 S.C.R. 737, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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SUPREME COURT REPORTS
[2021] 13 S.C.R.
139. In ordinary course, we would not have entertained such a
petition directly under Article 32 of the Constitution. However, a question
of law, which arises for consideration in the present petition has been
considered by us in this batch of matters. In that view of the matter, we
find, that it would not be in the interest of justice to non-suit the present
petitioner, when we have specifically decided question of law, which
would govern the present case also. As such, the present petition is
allowed.
140. We hold and declare, that the respondents are not entitled to
recover any claims or claim any debts owed to them from the Corporate
Debtor accruing prior to the transfer date. Needless to state, that the
consequences thereof shall follow.
CIVIL APPEALS ARISING OUT OF SPECIAL LEAVE
PETITION (CIVIL) NOS.7147-7150 OF 2020
141. For the reasons stated, I.A. for intervention on behalf of the
applicant – TATA Steel BSL Limited is allowed.
142. In the present case, the appellant challenges the judgment
and order passed by the Division Bench of the Jharkhand High Court
dated 1.5.2020 vide which the petitions filed by the appellant, challenging
the action of the respondent – authorities thereby, seeking to recover the
Jharkhand Value Added Tax (JVAT) for the period between 2011-2012
and 2012-2013, have been rejected. Both the learned Judges have written
separate judgments.
143. In the judgment authored by H.C. Mishra, J,
the petitions
filed by the appellant were rejected on two grounds, viz., one, that since
the management of the appellant was taken over by M/s Vedanta Limited
on 4.6.2018, it was only M/s Vedanta Limited, which had locus to file
writ petitions. Secondly, it was debatable whether the amount of JVAT
shall be covered by the expressions “debt in respect of the payment of
dues arising under any law for the time being in force and payable to the
Central Government, any State Government” so as to bring it within the
definition of “operational debt”.
144. Insofar as, the judgment authored by Deepak Roshan, J. is
concerned, the learned Judge has observed, that since the resolution
plan was approved by NCLT on 17.4.2018, 2019 amendment to Section
31(1) of I&B Code would not apply to the said plan. We find, that the
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finding of the High Court, that the dues owed to the State Government
and Central Government would not come within the definition of
‘operational debt’, is incorrect in law in the light of the view that is taken
by us. So also the finding, that since the order of NCLT is prior to the
date on which Section 31(1) of I&B Code was amended, the provisions
of Section 31 would not be applicable, also cannot stand in view of the
foregoing observations made by us hereinabove.
145. We also find, that the High Court has erred in holding, that
the Appellant – Company does not have locus to file the writ petitions
inasmuch as, the management has been taken over by M/s Vedanta
Limited. The resolution plan is in respect of the Corporate Debtor and
the successful resolution applicant only takes over the management of
the Corporate Debtor in accordance with the resolution plan. The
resolution applicant steps into the shoes of the Corporate Debtor. As
such, the finding in this respect would also not be sustainable in law.
146. Shri Gurukrishna Kumar, learned Senior Counsel, strenuously
argued, that RP/CoC had acted in a fraudulent manner. It is submitted,
that though a notice inviting claim was required to be published in local
newspapers where the registered office of the Corporate Debtor was
situated, the notice was published in the newspaper of Kolkata edition.
As per Regulation 6(2)(b) of the 2016 Regulations, the said notice is
required to be published in one English
and one regional language
newspaper with wide circulation at the location of the registered office
and corporate office of the Corporate Debtor. Perusal of the record
would reveal, that the notice was published in Business Standard and
Ananda Bazar Patrika newspapers of the Kolkata edition, which have
wide circulation in Ranchi. The corporate office of the Corporate Debtor
is at Kolkata whereas its registered office is at Ranchi. In any case, it is
to be noticed, that the Forest Department of the State Government had
filed intervention application before NCLT as well as NCLAT. When
one of the wings of the State Government has approached NCLT and
NCLAT, it is difficult to believe, that other organ of the State was not
aware about the said proceedings.
147. The contention of Shri Gurukrishna Kumar, learned Senior
Counsel, that finding with regard to non-compliance of Section 13 is not
challenged by the Electrosteel Steels Limited, is also incorrect, inasmuch
as, Electrosteel Steels Limited has raised the specific ground in Grounds
‘U’ to ‘ AA’ to that effect in the appeal memo.
GHANASHYAM MISHRA AND SONS (P) LTD. THROUGH THE AUTH.
SIGNATORY v. EDELWEISS ASSET RECONSTRUCTION CO. LTD.
THROUGH THE DIRECTOR [B. R. GAVAI, J.]
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SUPREME COURT REPORTS
[2021] 13 S.C.R.
148. In the result, the appeals deserve to be allowed. It is ordered
accordingly. The impugned judgment and order of the Jharkhand High
Court dated 1.5.2020 is quashed and set aside.
149. We hold and declare, that the respondents are not entitled to
recover any claims or claim any debts owed to them from the Corporate
Debtor accruing prior to the transfer date. Needless to state, that the
consequences thereof shall follow.
Nidhi Jain
Appeals and Writ Petition allowed.