GHANASHYAM MISHRA AND SONS PRIVATE LIMITED v. EDELWEISS ASSET RECONSTRUCTION COMPANY LIMITED

3.3 In the instant case, the claim of EARC was rejected on 22.1.2018. Instead of challenging the said rejection, EARC participated in the proceedings and was one of the resolution applicants. Not only that, in the first round, it was a successful bidder being ranked H1 bidder. However, since in the negotiations it failed to satisfy CoC, fresh bids were invited from the resolution applicants, which had submitted their EOI. In the 12th meeting of CoC held on 25.4.2018, the resolution plan of GMSPL was approved by 89.23% of the voting shares. Only thereafter, EARC filed two applications; one challenging the approval of resolution plan of GMSPL by CoC and another challenging rejection of its claims by RP/CoC. It could thus be clearly seen, that EARC was taking chances. After rejection of its claim, it did not choose to challenge the same by an application under Section 60(5) but waited till the decision of CoC. During this period, it was actually pursuing its resolution plan. Only after its resolution plan was not approved and the resolution plan of GMSPL was approved, it filed the aforesaid two applications. Apart from that, as already observed in the resolution plan of EARC itself, it has provided for extinguishment of all claims not forming part of resolution plan. [Paras 120-121][815-B-E]

3.4 Even otherwise, if for the sake of argument, it is held, that EARC was entitled to be treated as a ‘financial creditor’ and entitled for a participation in CoC, still its share was about 9% and as such, the resolution plan of GMSPL would have been passed by a majority of 80%, which is much above the statutory requirement. Therefore, the observation made by NCLAT giving liberty to EARC to take recourse to such proceedings as available in law for raising its claims is totally unsustainable. [Paras 122, 123][815-F-G]

3.5 Insofar as, the observation made with regard to claim of the Jharkhand Government is concerned, it is to be noted, that the State of Jharkhand has not even appealed against the order passed by NCLT. Insofar as, the claims of Labour and Workmen are concerned, RP has specifically stated before NCLAT, that whatever claims were received from the workmen were duly considered in the resolution plan. Despite that, A B C D E F G H 748 SUPREME COURT REPORTS [2021] 13 S.C.R. A B C D E F G H observing that a liberty is available to the workmen to raise their claims before a Civil Court or Labour Court, is totally in conflict with the provisions of I&B Code. The same would equally apply to the observation made in the appeal of DS, claiming to be ‘operational creditor’. Therefore, the appeal is allowed by expunging the paragraphs nos. 28, 42, 43, 51 and 52 from the judgment of NCLAT dated 23.4.2019. The judgment and order passed by NCLT dated 22.6.2018 is upheld. [Paras 124 and 125][815-G-H; 816-A-C]

3.6 2019 amendment to Section 31 of I&B Code is clarificatory and declaratory in nature and therefore will have a retrospective operation. As such, when the resolution plan is approved by NCLT, the claims, which are not part of the resolution plan, shall stand extinguished and the proceedings related thereto shall stand terminated. Since the subject matter of the petition are the proceedings, which relate to the claims of the respondents prior to the approval of the plan, same cannot be continued. Equally the claims, which are not part of the resolution plan, shall stand extinguished. [Para 130][818-C-D]

#4. In CA arising out of SLP 11232 of 2020, relegating the appellant to the alternative remedy would serve no purpose. A party cannot be made to run from one forum to another forum in respect of the proceedings and the claims, which are not permissible in law. The impugned judgment and order passed by the High Court is quashed and set aside. 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. [Paras 131, 132][818-E-F]

#5. In ordinary course, WP (C) 117 of 2020 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 instant petition has been considered in this batch of matters. In that view of the matter, it would not be in the interest of justice to non-suit the instant petitioner, when the question of law have been specifically decided, which would govern the present case also. 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. [Paras 139, 140] [820-A-C] GHANASHYAM MISHRA AND SONS (P) LTD. THROUGH THE AUTH. SIGNATORY v. EDELWEISS ASSET RECONSTRUCTION CO. LTD. THROUGH THE DIRECTOR 749

6.1 As regards CA arising out of SLP (C) 7147-50 of 2020, it is found that the 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. 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. [Para 144][821-A-B]

6.2 The High Court 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 V Co. 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. [Para 145][821-B-D]

6.3 It was submitted that RP/CoC had acted in a fraudulent manner; and 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. [Para 146][821-D-G] A B C D E F G H 750 SUPREME COURT REPORTS [2021] 13 S.C.R.

6.4 The submission that finding with regard to non- compliance of Section 13 is not challenged by the ES Company, is also incorrect, inasmuch as, ES Company has raised the specific ground in Grounds ‘U’ to ‘ AA’ to that effect in the appeal memo. [Para 147][821-G-H]

6.5 The impugned judgment and order of the High Court is quashed and set aside. 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. [Paras 148- 149][822-A-B] Committee of Creditors of Essar Steel India Limited Through Authorized Signatory v. Satish Kumar Gupta and Others (2020) 8 SCC 531 : [2019] 16 SCR 275; K. Shashidhar vs. Indian Overseas Bank and Others (2019) 12 SCC 150 : [2019] 3 SCR 845; Maharashtra Seamless Limited vs. Padmanabhan Venkatesh and others (2020) 11 SCC 467; Karad Urban Cooperative Bank Ltd. vs. Swwapnil Bhingardevay & Ors. (2020) 9 SCC 729; Kalpraj Dharamshi and Another vs. Kotak Investment Advisors Limited and Another 2021 SCC OnLine SC 204; Banarasi and Another v. Ram Phal (2003) 9 SCC 606 : [2003] 2 SCR 22; State Bank of India vs. V. Ramakrishnan and Another (2018) 17 SCC 394 : [2018] 10 SCR 974; B.K. Educational Services Private Limited v. Parag Gupta and Associates (2019) 11 SCC 633 : [2018] 12 SCR 794; Innoventive Industries Ltd. vs. ICICI Bank & Anr (2018) 1 SCC 407 : [2017] 8 SCR 33; Pr. Commissioner of Income Tax vs. Monnet Ispat and Energy Ltd. 2018 (18) SCC 786; K.P. Varghese v. Income Tax Officer, Ernakulam and Another (1981) 4 SCC 173 : [1982] 1 SCR 629; Union of India and others vs. Martin Lottery Agencies Ltd. (2009) 12 SCC 209 : [2009] 7 SCR 946; Zile Singh vs. State of Haryana and others (2004) 8 SCC 1 : [2004] 5 Suppl. SCR 272; Commissioner of Income Tax I, Ahmedabad vs. Gold Coin Health Food Private Limited (2008) 9 SCC 622 : [2008] 12 SCR 179; State Bank of A B C D E F G H GHANASHYAM MISHRA AND SONS (P) LTD. THROUGH THE AUTH. SIGNATORY v. EDELWEISS ASSET RECONSTRUCTION CO. LTD. THROUGH THE DIRECTOR 751 India vs. V. Ramakrishnan and another (2018) 17 SCC 394 : [2018] 10 SCR 974; Akshay Jhunjhunwala & Anr. vs. Union of India through the Ministry of Corporate Affairs & Ors. 2018 SCC OnLine Cal. 142; Export Import Bank of India vs. Resolution Professional JEKPL Private Limited Company Appeal (AT) (Insolvency) No. 304 of 2017; Babu Ram Prakash Chandra Maheshwari vs. Antarim Zilla Parishad Muzaffar Nagar [1969] 1 SCR 518; Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors. (1998) 8 SCC 1 : [1998] 2 Suppl. SCR 359; Nivedita Sharma vs. Cellular Operators Association of India & Ors. (2011) 14 SCC 337; Embassy Property Developments Pvt. Ltd. vs. State of Karnataka and Others (2020) 13 SCC 308 – referred to. Justice G.P. Singh treatise on “The principles of Statutory Interpretation”, 14th Edition – referred to. Case Law Reference [2019] 16 SCR 275 [2019] 3 SCR 845 (2020) 11 SCC 467 (2020) 9 SCC 729 [2003] 2 SCR 22 [2018] 10 SCR 974 [2018] 12 SCR 794 [2017] 8 SCR 33 2018 (18) SCC 786 [1982] 1 SCR 629 [2009] 7 SCR 946 referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to [2004] 5 Suppl. SCR 272 referred to [2008] 12 SCR 179 [2018] 10 SCR 974 referred to referred to Para 25 Para 31 Para 31 Para 31 Para 33 Para 35 Para 35 Para 49 Para 64 Para 74 Para75 Para 79 Para 83 Para 84 A B C D E F G H 752 SUPREME COURT REPORTS [2021] 13 S.C.R. A [1969] 1 SCR 518 referred to [1998] 2 Suppl. SCR 359 referred to (2011) 14 SCC 337 (2020) 13 SCC 308 referred to referred to Para 129 Para 129 Para 129 Para 129 B C D E F G CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal No. 8129 of 2019. From the Judgment and Order dated 23.04.2019 of the National Company Law Appellate Tribunal, New Delhi in Company Appeal (AT) (Insolvency) No. 437 of 2018. With Civil appeal No. 1554 of 2021, Writ Petition (Civil) No.1177 of 2020 and Civil Appeal Nos. 1550-1553 of 2021. Dr. Abhishek Manu Singhvi, Neeraj Kishan Kaul, Gopal Jain, Jaideep Gupta, Sr. Advs., Mahesh Agarwal, Himanshu Satija, Arshit Anand, Divyang Chandiramani, Rohan Talwar, Ankur Saigal, Amit Bhandari, Yojit Mehra, Deepak Joshi, E.C. Agrawala, Ms. Shruti Jose, Ms. Anne Mathew, Amit Kumar Mishra, Siddharth Sharma, Shashank Gautam, Shashank Manish, Arvind Thapliyal, Manik Ahluwalia, Ms. Nidhi Sahay, Yash Kumar, Advs. for the Appellant. V. Shekhar, S. Guru Krishna Kumar, Sr. Advs., Bhakti Vardhan Singh, Ms. Sheetal Rajpoot, Rajiv Shankar Dvivedi, Kumar Anurag Singh, Saurabh Jain, Zain Khan, Shwetank Singh, Ms. Aastha Shreshta, Ms. Tulika Mukherjee, Prashant Bhushan, Sanjay Bhatt, Sumit Nagpal, Pranav Prashant, Ms. Akansha Srivastava, Rabin Majumder, Mohammed Akhil, Rupesh Kumar, Ms. Seema Bengani, B. Krishna Prasad, B.V. Balaram Das, M.K. Maroria, Sandeep Bajaj, Soayib Qureshi, Ms. Aditi Pundhir, Ms. Sangya Gupta, Raj Kumar Mehta, Ms. Himanshi Andley, C.K. Rai, Buddy A Ranganadhan, A.V. Rangam, Advs. for the Respondents. The Judgment of the Court was delivered by B. R. GAVAI, J.

#1. Leave granted in Special Leave Petition (Civil) Nos. 11232 of 2020 and 7147-7150 of 2020.

#2. The short but important questions, that arise for consideration H in this batch of matters, are as under:- GHANASHYAM MISHRA AND SONS (P) LTD. THROUGH THE AUTH. SIGNATORY v. EDELWEISS ASSET RECONSTRUCTION CO. LTD. THROUGH THE DIRECTOR [B. R. GAVAI, J.] 753 (i) (ii) As to whether any creditor including the Central Government, State Government or any local authority is bound by the Resolution Plan once it is approved by an adjudicating authority under sub-section (1) of Section 31 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘I&B Code’)? As to whether the amendment to Section 31 by Section 7 of Act 26 of 2019 is clarificatory/declaratory or substantive in nature? (iii) As to whether after approval of resolution plan by the Adjudicating Authority a creditor including the Central Government, State Government or any local authority is entitled to initiate any proceedings for recovery of any of the dues from the Corporate Debtor, which are not a part of the Resolution Plan approved by the adjudicating authority?

#3. We will first refer to the facts in each of these matters. CIVIL APPEAL NO.8129 OF 2019 [GHANASHYAM MISHRA AND SONS PRIVATE LIMITED Vs. EDELWEISS ASSET RECONSTRUCTION COMPANY LIMITED & OTHERS]

#4. Orissa Manganese & Minerals Limited (hereinafter referred to as “Corporate Debtor” or “OMML”) was engaged in the business of mining iron ore, graphite, manganese ore and agglomerating iron fines into pellets through its facilities in Orissa and Jharkhand. The Corporate Insolvency Resolution Process (hereinafter referred to as “CIRP”) was initiated in respect of the Corporate Debtor by an application under Section 7 of I&B Code filed by the State Bank of India (hereinafter referred to as “SBI”) before the National Company Law Tribunal, Kolkata Bench, Kolkata (hereinafter referred to as “NCLT”).

#5. Vide order dated 3.8.2017, Company Petition (I.B.) No. 371/ KB/2017 filed by SBI was admitted. Shri Sumit Binani was appointed as Interim Resolution Professional (hereinafter referred to as “IRP”). Upon admission of the said Company Petition, CIRP was initiated with effect from 3.8.2017. The appointment of IRP was confirmed by the Committee of Creditors (hereinafter referred to as “CoC”) in their meeting held on 4.9.2017. The Resolution Professional (hereinafter referred to as “RP”) A B C D E F G H 754 SUPREME COURT REPORTS [2021] 13 S.C.R. A B C D E F G H continued with the resolution process by inviting Expression of Interest (hereinafter referred to as “EOI”) and applications for resolution plan in accordance with the provisions of the I&B Code and the Regulations framed thereunder. The initial period of CIRP of 180 days expired on 29.1.2018. At the request of CoC, RP moved an application for extension of CIRP period, which came to be extended by 90 days i.e. till 29.4.2018.

#6. In response to the invitation, three Resolution Plans were received by RP each from, Edelweiss Asset Reconstruction Company Limited (hereinafter referred to as “EARC”), respondent No.1 herein, Orissa Mining Private Limited (hereinafter referred to as “OMPL”) and Ghanashyam Mishra & Sons Private Limited (hereinafter referred to as “GMSPL”), the appellant herein, respectively. In the 8th meeting of the CoC held on 14.3.2018, EARC was declared as H1 Bidder. However, EARC failed to satisfy CoC in the negotiations and as such, the resolution plan submitted by EARC came to be rejected in the 9th meeting of CoC held on 31.3.2018.

#7. CoC thereafter proceeded for negotiations with the H2 Bidder i.e. GMSPL. However, the resolution plan of GMSPL was also found to be unacceptable to CoC and therefore, in its 10th meeting held on 3.4.2018, it decided to annul the existing process and initiate a fresh process for invitation of Resolution Plan only from the applicants, which had earlier submitted their EOI. Accordingly, a communication was sent to the applicants, which had submitted their EOI. In response to the said invitation, three Resolution Plans were received each from GMSPL, EARC and Srei Infrastructure Finance Limited (hereinafter referred to as “SIFL”) respectively. These Resolution Plans were considered by CoC in its 11th meeting held on 13.4.2018. After evaluation of the Resolution Plans, CoC ranked GMSPL as the H1 bidder.

#8. Further negotiations were held by CoC with GMSPL. After several rounds of negotiations, the Resolution Plan of GMSPL was considered by CoC for its approval. In its 12th meeting held on 21.4.2018, CoC unanimously took a decision to convene a meeting of CoC on 25.4.2018 at 6 PM, for voting on the Resolution Plan proposed by GMSPL. After being satisfied, that the Resolution Plan submitted by GMSPL meets all the requirements under sub-section (2) of Section 30 of the I&B Code, the same was placed before the Members of CoC for voting, and the Resolution Plan came to be approved by more than 89.23% of the voting share of financial creditors of the Corporate Debtor. GHANASHYAM MISHRA AND SONS (P) LTD. THROUGH THE AUTH. SIGNATORY v. EDELWEISS ASSET RECONSTRUCTION CO. LTD. THROUGH THE DIRECTOR [B. R. GAVAI, J.] 755

#9. Accordingly, a Company Application being C.A (IB) No. 402/ KB/2018 came to be filed by RP for approval of the Resolution Plan submitted by GMSPL. One application being C.A. (IB) No. 398/KB/ 2018 came to be filed by EARC-respondent No.1 herein, challenging the approval of the Resolution Plan of GMSPL. One more application came to be filed by EARC being C.A. (IB) No. 470/KB/2018 challenging the decision of RP in not admitting its claim. The said application was filed, contending, that its claim stood on the strength of corporate guarantee provided by the Corporate Debtor against the take-out facility provided to Adhunik Power and Natural Resources Limited (hereinafter referred to as “APNRL”), being sister concern of the Corporate Debtor. It was contended, that in not admitting the claim on the strength of corporate guarantee, RP violated Regulations 13 and 14 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (hereinafter referred to as “the Regulations”). It was prayed in the application for a direction to the successful resolution applicant i.e. GMSPL, to undertake to pay the full amount due and payable under the said corporate guarantee and further to issue directions for protecting the rights of the lenders of APNRL as pledgee. One more Application being C.A. (IB) No.509/KB/2018 was filed by the District Mining Officer, Department of Mining and Geology, Jharkhand challenging non-admission of its claim to the tune of Rs.93,51,91,724/- and Rs.760.51 crore.

#10. NCLT by an elaborate order dated 22.6.2018 approved the Resolution Plan of GMSPL, which was duly approved by CoC by voting share of more than 89.23%. Rest of the applications including the two filed by EARC, the respondent No.1 herein, came to be rejected.

#11. Being aggrieved by the order passed by NCLT, EARC preferred Company Appeal being Company Appeal (AT) (Insolvency) Nos. 437/ 2018 and 444/2018 before the National Company Law Appellate Tribunal, New Delhi (hereinafter referred to as “NCLAT”). Company Appeal (AT) (Insolvency) No. 437/2018 was against the rejection of claims of EARC as Financial Creditor and thereby its non-inclusion in CoC. Company Appeal (AT) (Insolvency) No. 444/2018 came to be filed with the grievance, that RP and CoC had erroneously held, that the plan of GMSPL was better than that of EARC. One more Company Appeal being Company Appeal (AT) (Insolvency) No. 500/2018 came to be filed by Sundargarh Mines & Transport Workers Union (hereinafter A B C D E F G H 756 SUPREME COURT REPORTS [2021] 13 S.C.R. A B C D E F G H referred to as “SMTWU”) on behalf of the workmen of the Corporate Debtor. One another Company Appeal being Company Appeal (AT) (Insolvency) No.438/2018 came to be filed by one Deepak Singh, an employee of APNRL, claiming dues of his salary.

#12. By the impugned judgment and order dated 23.4.2019, NCLAT while holding, that RP was justified in not accepting the claim of EARC and that NCLT had rightly rejected the application filed by EARC, however, observed that the rejection of the claim for the purpose of collating and making it part of the Resolution Plan will not affect the right of EARC to invoke the Bank Guarantee against the Corporate Debtor, in case the principal borrower failed to pay the debt amount, since the moratorium period had come to an end. NCLAT on comparison of the plans submitted by EARC and GMSPL further held, that the resolution plan submitted by GMSPL was a better one than the one submitted by other applicants and there was no illegality in accepting the resolution plan of GMSPL.

#13. Insofar as the Company Appeal (AT) (Insolvency) No. 500/ 2018 is concerned, the grievance was, that though there were around 1,476 workmen, RP ignored their rightful wages, statutory dues and other benefits. NCLAT, in the said order, observed, that after the period of moratorium, it was open for the persons to move before a civil court or to move an application before the court of competent jurisdiction against the Corporate Debtor. NCLAT therefore observed, that the appellant therein may move before the civil court or a court of competent jurisdiction and may file an application before the Labour Court for appropriate reliefs in favour of the concerned workmen or against the Corporate Debtor, if they have actually worked and had not been taken care of in the Resolution Plan.

#14. Insofar as Company Appeal (AT) (Insolvency) No. 438/2018 is concerned, it was the claim of Deepak Singh, appellant therein, that he had joined APNRL, the holding Company of the Corporate Debtor, as the President-Group Head HR from 2.6.2014 to 9.3.2015. It was his claim, that he had an amount of Rs.17,03,000/- recoverable from the said APNRL and as such, was an Operational Creditor. It was submitted, that though the claim of the said appellant was valid, it was illegally rejected by RP. NCLAT held, that insofar as the said appeal is concerned, no ground as is permissible under sub-section (3) of Section 61 of I&B Code is made out and as such, relief could not be granted in the appeal. GHANASHYAM MISHRA AND SONS (P) LTD. THROUGH THE AUTH. SIGNATORY v. EDELWEISS ASSET RECONSTRUCTION CO. LTD. THROUGH THE DIRECTOR [B. R. GAVAI, J.] 757 However, it was observed, that the said order passed in the appeal would not come in the way of appellant to move the appropriate forum for appropriate relief.

#15. GMSPL, thus, aggrieved by the observations made by NCLAT to the effect, that the claims of the parties, which are not included in the Resolution Plan could be agitated by them before the other forums, has preferred the present appeal. CIVIL APPEAL ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.11232 OF 2020 [ULTRATECH NATHDWARA CEMENT LIMITED VS. STATE OF UTTAR PRADESH AND OTHERS

#16. The appellant is a wholly owned subsidiary of UltraTech Cement Limited and is engaged in the business of manufacturing and marketing of cement and allied products.

#17. On 19.12.2015, the Additional Commissioner, Commercial Tax, Ghaziabad passed an order in the appeal preferred by M/s Binani Cement Limited, thereby, allowing the appeal filed by Binani Cement and setting aside the order of imposition of fine of Rs.24,71,885/-. Vide another order dated 22.12.2015, passed in the appeal filed by Binani Cement, the order of imposition of fine of Rs.59,61,445/- also came to be set aside. Vide order dated 2.8.2017, the Deputy Commissioner, Commercial Tax, Division-10, Ghaziabad held, that Binani Cement was liable to pay Entry Tax of Rs.40,47,344/- for the Assessment Year 2003-2004. By another order dated 2.8.2017, the Deputy Commissioner, Commercial Tax, Division-10, Ghaziabad further held, that Binani Cement was liable to pay Entry Tax of Rs.43,06,715/- for the Assessment Year 2004-2005.

#18. Since the said Binani Cement was unable to pay the debt to Bank of Baroda, the Bank of Baroda filed an application being C.A. (IB) No. 359/KB/2017 before NCLT, Kolkata Bench under Section 7 of I&B Code. Vide order dated 25.7.2017, NCLT admitted the petition for initiating the CIRP process. Vide the said order, NCLT also declared moratorium for the purposes referred to in Section 14 of I&B Code.

#19. Vide communication dated 10.11.2017, the authorities were informed about the initiation of the CIRP. However, the authority by an endorsement made on the application of the appellant herein stated, that there was no stay granted by NCLT on tax assessment process. It was A B C D E F G H 758 SUPREME COURT REPORTS [2021] 13 S.C.R. A B C D E F G H observed, that if there was any clear order passed by NCLT, the same should be produced or the Binani Cement should appear on the next date i.e. 27.11.2017 for hearing of tax assessment process.

#20. On 28.7.2017, RP made a public announcement inviting claims from all the creditors of the Corporate Debtor, as is required under Section 15 of I&B Code. The last date for submission of claims was 8.8.2017. RP upon receipt of the claims maintained a list of creditors alongside the amount claimed by them and the security interest. RP also invited EOI. In response, various entities including the present appellant submitted their EOI as well as resolution plans. CoC in its meeting dated 28.5.2018, unanimously approved the Resolution Plan submitted by the present appellant. Pursuant to the approval by CoC, NCLAT granted approval to the Resolution Plan of appellant vide order dated 14.11.2018. The said order came to be challenged before this Court in Civil Appeal No. 10998/2018, which was dismissed by this Court vide order dated 19.11.2018.

#21. On 13.12.2018, the name of the Corporate Debtor was changed to UltraTech Nathdwara Cement Limited from Binani Cement Limited and the management of the Corporate Debtor was taken over by Ultratech Cement Limited w.e.f. 20.11.2018. Thereafter, the appellant addressed various communications to the tax authorities, who are respondents herein informing them, that after the Resolution Plan was approved by NCLT, all proceedings instituted against the Corporate Debtor, arising and pending before the transfer date shall stand withdrawn. It was also informed, that all the liabilities towards operational creditors shall be deemed to have been settled by discharge and payment of the resolution amount by the Corporate Debtor. However, it was insisted by the tax authorities, that since there was no specific stay, proceedings could not be dropped. After various communications addressed by the appellant to the Joint Commissioner, Commercial Tax (Corporate Circle), Ghaziabad dated 26.4.2019, the following endorsements came to be made by the authority on 29.4.2019:- “After consideration on application presented by you, it is found that, by Hon’ble NCLT/NCLAT after transfer, neither stay is imposed on tax assessment nor on creation of demand. So the created demand is payable by you. If you are not agree with it, preferring appeal before higher authority, present its copy to us. Disposal is done of application presented by you.” _______ GHANASHYAM MISHRA AND SONS (P) LTD. THROUGH THE AUTH. SIGNATORY v. EDELWEISS ASSET RECONSTRUCTION CO. LTD. THROUGH THE DIRECTOR [B. R. GAVAI, J.] 759

#22. The Commercial Tax Department of the State of Rajasthan filed Civil Appeal No. 5889/2019 challenging the Resolution Plan. However, the said appeal came to be dismissed vide order of this Court dated 26.7.2019. The appeals being Civil Appeal Nos. 630-634/2020 were also preferred by the Commissioner of Central Excise, Goods and Services Tax, Jodhpur challenging the Resolution Plan. The same also came to be dismissed by this Court vide order dated 24.1.2020.

#23. The appellant therefore filed a Civil Miscellaneous Writ Petition No. 354/2020 before the High Court of Allahabad challenging the order passed by the Additional Commissioner Grade 2 (Appeal) dated 30.1.2020, to the effect, that the proceedings in the State of U.P. would remain unaffected irrespective of the approval of the Resolution Plan of the appellant by NCLT. The appellant also prayed for a declaration, that all the proceedings pending before different authorities stand abated in terms of the approval of the Resolution Plan by NCLT. A prayer was also made for refund of Rs.248.92 lakhs deposited by the appellant under protest and for return of the Bank Guarantee.

#24. The Division Bench of the Allahabad High Court vide order dated 6.7.2020 observed, that the contention of the appellant with regard to the approval of the Resolution Plan by NCLT has been dealt with by the Assessing Authority as well as by the Appellate Authority and therefore, it was in the fitness of things that the appellant should avail of the alternative remedy of filing a second appeal available under the VAT Act. Being aggrieved by the same, the appellant has filed the present appeal. WRIT PETITION (CIVIL) NO. 1177 OF 2020 M/S MONNET ISPAT & ENERGY LIMITED AND ANOTHER VS. STATE OF ODISHA AND ANOTHER

#25. The petitioner Company is a Corporate Debtor in respect of which CIRP proceedings commenced in July 2017 and ended in July 2018, when NCLT approved the Resolution Plan submitted by a Consortium of Aion Investment Private Limited and JSW Steel Limited (“Aion-JSW” for short). Prior to approval by NCLT, CoC had granted approval to the said Resolution Plan by a voting majority of 98.97%. It is the contention of the petitioner, that in accordance with the provisions of I&B Code, RP had made a public announcement thereby, inviting claims A B C D E F G H 760 SUPREME COURT REPORTS [2021] 13 S.C.R. A B C D E F G from Creditors. Contending, that the demand notices issued by the respondents for recovery of Service Tax towards Royalty, District Mineral Foundation (“DMF” for short) and National Mineral Exploration Trust (“NMET” for short) against the iron ore purchased by the petitioner Company are contrary to the law laid down by this Court in the case of Committee of Creditors of Essar Steel India Limited Through Authorized Signatory v. Satish Kumar Gupta and Others1, the petitioner has directly approached this Court by filing a writ petition under Article 32 of the Constitution of India. CIVIL APPEALS ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NOS.7147-7150 OF 2020 [ELECTROSTEEL STEELS LIMITED, BOKARO, JHARKHAND VS. STATE OF JHARKHAND AND OTHERS]

#26. The appellant is a Corporate Debtor in respect of which the proceedings under Section 7 were initiated by the SBI. Vide order dated 21.7.2017 of NCLT, the application filed by SBI was admitted and Mr. Dhaivat Anjaria was appointed as Interim Resolution Professional (IRP). In its meeting dated 21.8.2017, CoC approved the appointment of IRP as RP. In response to the invitation for submission of resolution plans, four applicants had submitted their Resolution Plans. CoC had approved the Resolution Plan of Vedanta Limited by 100% voting share. NCLT vide order dated 17.4.2018 approved the Resolution Plan of Vedanta Limited. The appeal being Company Appeal (AT) (Insolvency) No. 175/ 2018 filed by one Renaissance Steel India Private Limited challenging the order of NCLT came to be dismissed by NCLAT vide order dated 10.8.2018. Challenging the notices issued by the respondent State Authorities and the order of SBI asking it to pay an amount of Rs.37,41,41,602/- on account of tax penalty due under the Jharkhand VAT Act for the period 2011-12 and 2012-13, the appellant approached the High Court of Jharkhand. The appellant had also challenged the letter dated 22.11.2019 issued by State Tax Officer, Bokaro to deposit the amount of Rs.75,57,000/-. As in the other matters, it is contended by the appellant, that in view of Section 31 of I&B Code, since the claim made by the respondent was not a part of the Resolution Plan, it would get extinguished on the Resolution Plan being approved by NCLT. The said writ petition came to be rejected by the High Court on the ground, H 1 (2020) 8 SCC 531 GHANASHYAM MISHRA AND SONS (P) LTD. THROUGH THE AUTH. SIGNATORY v. EDELWEISS ASSET RECONSTRUCTION CO. LTD. THROUGH THE DIRECTOR [B. R. GAVAI, J.] 761 that the petitioner had no locus and that the Resolution Plan was not binding on the State Government since it had not participated in the CIRP proceedings. SUBMISSIONS IN CIVIL APPEAL NO.8129 OF 2019 [Ghanashyam Mishra and Sons Private Limited vs. Edelweiss Asset Reconstruction Company Limited & Others]

#27. Dr. A.M. Singhvi, learned Senior Counsel appearing for GMSPL submitted, that as held by this Court in a catena of decisions, the commercial wisdom of CoC in accepting or rejecting the Resolution Plan is paramount. He submitted, that the interference would be warranted within the limited parameters of judicial review that are available under the Statute. The learned Senior Counsel further submitted, that once the adjudicating authority approves the Resolution Plan, it shall be binding on everyone including Corporate Debtor and its employees, Members, Creditors including the Central Government, any State Government or any local authority, to whom a debt is owed in respect of the payment of dues arising under any law for the time being in force, guarantors and other stake-holders, involved in the Resolution Plan. He submitted, that once a Resolution Plan is accepted, if any additional liability is thrust upon the Resolution Plan, the entire plan would become unworkable, resulting into the frustration of the very purpose of the enactment i.e. revival of the Corporate Debtor.

#28. Dr. Singhvi further submitted, that perusal of the Resolution Plan submitted by EARC and particularly Clause 2.1.3 thereof would reveal, that the said Plan also provides, that all the debts and all dues, liability or obligations other than the one, which are included in Resolution Plan, shall be deemed to have been irrevocably waived and permanently extinguished and written off in full with effect from the effective date. He submitted that a similar provision is also made in the Resolution Plan submitted by GMSPL.

#29. The learned Senior Counsel further submitted, that the Resolution Plan submitted by GMSPL is for an amount of Rs.321.19 crore. If additional liability of Rs.648.89 crore is saddled upon the resolution applicant, the total resolution plan itself would be unworkable.

#30. Dr. Singhvi further submitted that NCLT has found the conduct of EARC not to be bona fide. He submitted, that NCLT has categorically found, that the application filed by EARC was a deliberate attempt to A B C D E F G H 762 SUPREME COURT REPORTS [2021] 13 S.C.R. A B C D E F G H stage manage an objection against the approval of Resolution Plan submitted by an entity, other than it. He submitted, that as a matter of fact, NCLT has imposed costs of Rs. 1 lakh on EARC taking into consideration its conduct.

#31. Dr. Singhvi relied upon the judgments of this Court in the cases of K. Shashidhar vs. Indian Overseas Bank and Others2, Committee of Creditors of Essar Steel India Limited through Authorised Signatory vs. Satish Kumar Gupta & Ors. (supra) Maharashtra Seamless Limited vs. Padmanabhan Venkatesh and others 3, Karad Urban Cooperative Bank Ltd. vs. Swwapnil Bhingardevay & Ors.4 and Kalpraj Dharamshi and Another vs. Kotak Investment Advisors Limited and Another5.

#32. Mr. Prashant Bhushan, learned Counsel appearing on behalf of the EARC-respondent No.1 submitted, that by the impugned order, NCLAT has only reserved the right of EARC to invoke the Corporate Guarantee in its favour. He submitted, that on account of the erroneous conduct of the proceedings by RP and CoC, EARC has been put in a precarious condition. He submitted, that on one hand RP has not recognized EARC as a financial creditor thereby, depriving its nomination to CoC and participation in finalization of the proceedings. On the other hand, denying EARC to encash its bank guarantee would leave EARC high and dry. A substantial claim of EARC would be rendered futile, in the event the order passed by NCLT is to be maintained. He therefore submitted, that no interference is warranted in the appeal.

#33. In reply to the submissions of the appellant that EARC has not preferred an appeal against the order of NCLAT though its appeal was disposed of is concerned, the learned Counsel relying on the judgment of this Court in the case of Banarasi and Another v. Ram Phal6 submitted, that since the findings recorded by NCLAT are in its favour, there was no occasion for it to prefer an appeal. He submitted, that in any event, it can raise the grounds insofar as the findings in the impugned order, which are adverse to EARC in addition to supporting the final judgment in its favour.