1.B.R. GAVAI, J. Jayant Kumar Arora 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 (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. 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 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 Particulars of Cause title the appellant C.A. No.2943- Kalpraj Dharamshi & Successful 2944/2020 anr. Vs. Resolution Kotak Investment Applicant Advisors Ltd. & Anr. C.A. No.3138- Deutsche Bank AG vs. Financial 3139 of 2020 Kotak Investment Creditor Advisors Ltd. & Ors. C.A. No.2949- Krishna Chamadia Erstwhile 2950 of 2020 (Erstwhile Resolution resolution Profession of Ricoh professional India Ltd.) Vs. Kotak Investment Advisors Ltd. & Ors. C.A. Fourth Dimension Claiming to be D.No.24125 of Solutions Ltd. Largest 2020 Vs. operational Krishna Chamadia & creditors Ors.
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
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
2 (2019) SCC Online SC 1478
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
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
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
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 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.
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 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
5 (1984) 2 SCC 680 (PARA 33)
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. 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
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
13(2015) 12 SCC 695
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
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 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
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,
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. 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
16 (1969) 1 SCR 518
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 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 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 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 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. 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 pro
visions of any law for the
time being in force;
(ii) there has been material ir
regularity in exercise of the
powers by the resolution pro
fessional during the corpo
rate insolvency resolution pe
riod;
(iii) the debts owed to opera
tional creditors of the corpo
rate 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 crite
ria 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 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 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,—
(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 re
sisting 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 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:
“….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.
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 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 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 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 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, 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 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 the case of Babu Ram
Prakash Chandra Maheshwari (supra), this Court
“It is a well-established proposition of law
that when an alternative and equally effi
cacious 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 ju
risdiction 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 rem
edy 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 excep
tional cases issue a writ such as a writ of
certiorari notwithstanding the fact that
the statutory remedies have not been ex
hausted.”
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 Tri
bunal under a provision of law, which is
ultra vires, it is open to a party aggrieved
thereby to move the High Court un
der 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 appli
cation in a case where the impugned or
der 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 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 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 unex
tendible by court under Section 5 of the
Limitation Act. The Arbitration and Con
ciliation Bill, 1995 which preceded the
1996 Act stated as one of its main objec
tives the need “to minimise the supervi
sory role of courts in the arbitral process”
[ Para 4(v) of the Statement of Objects
and Reasons of the Arbitration and Con
ciliation Act, 1996] . This objective has
found expression in Section 5 of the Act
which prescribes the extent of judicial in
tervention 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 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 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.”
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.”
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. 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 Com
missioner of Customs, Kanpur indicates
that the petitioner took a chance in ap
proaching the High Court at Delhi which
had no territorial jurisdiction in the mat
ter. 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 obser
vations 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 ap
plication of condonation of delay and con
sequently 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 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 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.
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
36 2019 SCC Online 1542
Karnataka was justified in entertaining
the writ petition, on the basis that NCLT
was coram non judice.”
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
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. 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 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 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 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
“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 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 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, 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
“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
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] .)
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)
“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.
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 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 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 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 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. 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.
INTERFERING WITH THE DECISION OF COC OF
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 in
formation memorandum.
(2) The resolution professional shall exam
ine each resolution plan received by him to
confirm that each resolution plan—
(a) provides for the payment of insol
vency resolution process costs in a
manner specified by the Board in
priority to the payment of other
debts of the corporate debtor;
(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 liquida
tion 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 dis
tributed 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 man ner as may be specified by the Board, which shall not be less than the amount to be paid to such credi tors in accordance with sub-section (1) of Section 53 in the event of a liq uidation 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 com mencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2019, the provisions of this clause shall also apply to the corporate in solvency resolution process of a cor porate debtor—
(i) where a resolution plan has not
been approved or rejected by the
Adjudicating Authority;
(ii) where an appeal has been pre
ferred 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 resolu
tion plan;]
(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 pro
visions 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 re quired 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 con
firm the conditions referred to in sub-section (2).
(4) The committee of creditors may ap prove a resolution plan by a vote of not less than sixty-six per cent of voting share of the financial creditors, after considering its feasi bility and viability, the manner of distribu tion 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 secu rity 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, submit ted before the commencement of the Insol vency and Bankruptcy Code (Amendment) Ordinance, 2017, where the resolution appli cant is ineligible under Section 29-A and may require the resolution professional to in vite 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 in eligible under clause (c) of Section 29-A, the resolution applicant shall be allowed by the committee of creditors such period, not ex ceeding thirty days, to make payment of overdue amounts in accordance with the proviso to clause (c) of Section 29-A:
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 com
pleted 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) Ordi nance, 2018 (Ord. 6 of 2018) shall apply to the resolution applicant who has not submit ted resolution plan as on the date of com mencement of the Insolvency and Bank ruptcy 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 credi tor.
(6) The resolution professional shall sub mit 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 com mittee of creditors under sub-section (4) of Section 30 meets the requirements as re ferred 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, credi tors, 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 be ing 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, sat isfy 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.
(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 for
ward all records relating to the con
duct of the corporate insolvency res
olution process and the resolution
plan to the Board to be recorded on
its database.
(4) The resolution applicant shall, pur suant to the resolution plan approved under sub-section (1), obtain the necessary ap proval 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 pro
vided for in such law, whichever is later:
Provided that where the resolution plan
contains a provision for combination, as re
ferred 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 aforemen
tioned Report:
“2. Executive Summary * * *
The key economic question in the bank
ruptcy process
***
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 Commit
tee. The appropriate disposition of a de
faulting 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 pro
posals to keep the entity as a going con
cern, 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 ma jority, 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 en tity as a going concern will be voted on by the creditors committee. There are no con straints on the proposals that the resolu tion professional can present to the credi tors committee. Other than the majority vote of the creditors committee, the reso lution professional needs to confirm to the Adjudicator that the final solution com plies with three additional requirements. The first is that the solution must explic itly require the repayment of any interim finance and costs of the insolvency resolu tion 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 im plemented. Lastly, the plan should comply with existing laws governing the actions of the entity while implementing the solu tions.
*** 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 ma
jority vote in the negotiations. The major ity 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 rea soned that members of the creditors com mittee have to be creditors both with the capability to assess viability, as well as to be willing to modify terms of existing liabil ities in negotiations. Typically, operational creditors are neither able to decide on mat ters 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 insol vency 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 envi ronment 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 solu
tions for keeping the entity going without
prejudice, within the rest of the con
straints of the IRP. Therefore, how the in
solvency is to be resolved will not be pre
scribed in the Code. There will be no re
striction 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 go
ing concern. The Code will not state that
the entity is to be revived, or the debt is to
be restructured, or the entity is to be liqui
dated. This decision will come from the de
liberations of the creditors committee in re
sponse 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 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)
“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 cor
rectness 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 au
thority 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 appli
cant and the stakeholders supporting
the resolution plan, may be relevant?”
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 “re
jected” resolution plan the adjudicating au
thority (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 adjudi
cating authority (NCLT) with the jurisdiction
or authority to analyse or evaluate the com
mercial decision of CoC much less to enquire
into the justness of the rejection of the reso
lution plan by the dissenting financial credi
tors. 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 de
faulting companies. In the new approach,
there is a calm period followed by a swift res
olution process to be completed within 270
days (outer limit) failing which, initiation of
liquidation process has been 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 com
mercial 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 cred
itors are fully informed about the viabil
ity 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 assess
ment 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 pro
vided any ground to challenge the “com
mercial wisdom” of the individual finan
cial creditors or their collective decision
before the adjudicating authority. That
is made non-justiciable.”
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
status without any judicial intervention for ensuring
completion of the stated processes within the timelines
prescribed by the I&B Code. This Court thus, in
unequivocal terms, held, that 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. It has been
held, that the opinion expressed by CoC after due
deliberations in the meetings through voting, as per voting
shares, is a collective business decision. It has been held,
that the legislature has consciously not provided any
ground to challenge the “commercial wisdom” of the
individual financial creditors or their collective decision
before the Adjudicating Authority and that the decision of
CoC’s ‘commercial wisdom’ is made non-justiciable.
143. This Court in Committee of Creditors of Essar
Steel India Limited through Authorised Signatory
(supra) after referring to the judgment of this Court in the
case of K. Sashidhar (supra) observed thus:
“64. Thus, what is left to the majority deci
sion of the Committee of Creditors is the
“feasibility and viability” of a resolution plan,
which obviously takes into account all as
pects of the plan, including the manner of
distribution of funds among the various
classes of creditors. As an example, take the
case of a resolution plan which does not pro
vide for payment of electricity dues. It is cer
tainly open to the Committee of Creditors to
suggest a modification to the prospective res
olution applicant to the effect that such dues
ought to be paid in full, so that the carrying
on of the business of the corporate debtor
does not become impossible for want of a
most basic and essential element for the car
rying on of such business, namely, electric
ity. This may, in turn, be accepted by the
resolution applicant with a consequent mod
ification as to distribution of funds, payment
being provided to a certain type of opera
tional creditor, namely, the electricity distri
bution company, out of upfront payment of
fered by the proposed resolution applicant
which may also result in a consequent re
duction of amounts payable to other finan
cial and operational creditors. What is im
portant is that it is the commercial wis
dom of this majority of creditors which
is to determine, through negotiation with
the prospective resolution applicant, as
to how and in what manner the corpo
rate resolution process is to take place.”
144. This Court held, that what is left to the majority
decision of CoC is the “feasibility and viability” of a
resolution plan, which is required to take into account all
aspects of the plan, including the manner of distribution of
funds among the various classes of creditors. It has further
been held, that CoC is entitled to suggest a modification to
the prospective resolution applicant, so that carrying on the
business of the Corporate Debtor does not become
impossible, which suggestion may, in turn, be accepted by
the resolution applicant with a consequent modification as
to distribution of funds, etc. It has been held, that what is
important is, the commercial wisdom of the majority of
creditors, which is to determine, through negotiation with
the prospective resolution applicant, as to how and in what
manner the corporate resolution process is to take place. 145. The view taken in the case of K. Sashidhar
(supra) and Committee of Creditors of Essar Steel India
Limited through Authorised Signatory (supra) has been
reiterated by another three Judges Bench of this Court in
the case of Maharashtra Seamless Limited (supra). 146. In all the aforesaid three judgments of this Court,
the scope of jurisdiction of the Adjudicating Authority
(NCLT) and the Appellate Authority (NCLAT) has also been
elaborately considered. It will be relevant to refer to
paragraph 55 of the judgment in the case of K. Sashidhar
(supra), which reads thus:
“55. Whereas, the discretion of the adjudi
cating authority (NCLT) is circumscribed by
Section 31 limited to scrutiny of the resolu
tion plan “as approved” by the requisite per
cent of voting share of financial creditors.
Even in that enquiry, the grounds on which
the adjudicating authority can reject the res
olution plan is in reference to matters speci
fied in Section 30(2), when the resolution
plan does not conform to the stated require
ments. Reverting to Section 30(2), the en
quiry to be done is in respect of whether the
resolution plan provides: (i) the payment of
insolvency resolution process costs in a
specified manner in priority to the repay
ment of other debts of the corporate debtor,
(ii) the repayment of the debts of operational
creditors in prescribed manner, (iii) the man
agement of the affairs of the corporate
debtor, (iv) the implementation and supervi
sion of the resolution plan, (v) does not con
travene any of the provisions of the law for
the time being in force, (vi) conforms to such
other requirements as may be specified by
the Board. The Board referred to is estab
lished under Section 188 of the I&B Code.
The powers and functions of the Board have
been delineated in Section 196 of the I&B
Code. None of the specified functions of the
Board, directly or indirectly, pertain to regu
lating the manner in which the financial
creditors ought to or ought not to exercise
their commercial wisdom during the voting
on the resolution plan under Section 30(4) of
the I&B Code. The subjective satisfaction of
the financial creditors at the time of voting is
bound to be a mixed baggage of variety of
factors. To wit, the feasibility and viability of
the proposed resolution plan and including
their perceptions about the general capabil
ity of the resolution applicant to translate
the projected plan into a reality. The resolu
tion applicant may have given projections
backed by normative data but still in the
opinion of the dissenting financial creditors,
it would not be free from being speculative.
These aspects are completely within the do
main of the financial creditors who are called
upon to vote on the resolution plan under
Section 30(4) of the I&B Code.”
147. It has been held, that in an enquiry under
Section 31, the limited enquiry that the Adjudicating
Authority is permitted is, as to whether the resolution plan
provides:
(i) the payment of insolvency resolution process costs
in a specified manner in priority to the repayment of
other debts of the corporate debtor,
(ii) the repayment of the debts of operational creditors
in prescribed manner,
(iii) the management of the affairs of the corporate
debtor,
(iv) the implementation and supervision of the
resolution plan,
(v) the plan does not contravene any of the provisions
of the law for the time being in force,
(vi) conforms to such other requirements as may be
specified by the Board. 148. It will be further relevant to refer to the following
observations of this Court in K. Sashidhar (supra):
57. …Indubitably, the remedy of appeal
including the width of jurisdiction of the ap
pellate authority and the grounds of appeal,
is a creature of statute. The provisions in
vesting jurisdiction and authority in
NCLT or NCLAT as noticed earlier, have
not made the commercial decision exer
cised by CoC of not approving the resolu
tion plan or rejecting the same, justicia
ble. This position is reinforced from the
limited grounds specified for instituting
an appeal that too against an order “ap
proving a resolution plan” under Section
31. First, that the approved resolution plan
is in contravention of the provisions of any
law for the time being in force. Second, there
has been material irregularity in exercise of
powers “by the resolution professional” dur
ing the corporate insolvency resolution pe
riod. Third, the debts owed to operational
creditors have not been provided for in the
resolution plan in the prescribed manner.
Fourth, the insolvency resolution plan costs
have not been provided for repayment in pri
ority to all other debts. Fifth, the resolution
plan does not comply with any other criteria
specified by the Board. Significantly, the
matters or grounds—be it under Section
30(2) or under Section 61(3) of the I&B Code
—are regarding testing the validity of the
“approved” resolution plan by CoC; and not
for approving the resolution plan which has
been disapproved or deemed to have been re
jected by CoC in exercise of its business de
cision.”
[emphasis supplied]
149. It will therefore be clear, that this Court, in
unequivocal terms, held, that 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.
150. The position is clarified by the following
observations in paragraph 59 of the judgment in the case of
K. Sashidhar (supra), which reads thus:
“59. In our view, neither the adjudicating
authority (NCLT) nor the appellate authority
(NCLAT) has been endowed with the jurisdic
tion to reverse the commercial wisdom of
the dissenting financial creditors and that
too on the specious ground that it is only an
opinion of the minority financial
creditors…..”
151. This Court in Committee of Creditors of Essar
Steel India Limited through Authorised Signatory
(supra) after reproducing certain paragraphs in K.
Sashidhar (supra) observed thus:
“Thus, it is clear that the limited
judicial review available, which can in
no circumstance trespass upon a
business decision of the majority of the
Committee of Creditors, has to be
within the four corners of Section 30(2)
of the Code, insofar as the Adjudicating
Authority is concerned, and Section 32
read with Section 61(3) of the Code,
insofar as the Appellate Tribunal is
concerned, the parameters of such
review having been clearly laid down
in K. Sashidhar”
152. It can thus be seen, that this Court has clarified,
that the limited judicial review, which is available, can in no
circumstance trespass upon a business decision arrived at
by the majority of CoC. 153. In the case of Maharashtra Seamless Limited
(supra), NCLT had approved the plan of appellant therein
with regard to CIRP of United Seamless Tubulaar (P) Ltd. In
appeal, NCLAT directed, that the appellant therein should
increase upfront payment to Rs.597.54 crore to the
“financial creditors”, “operational creditors” and other
creditors by paying an additional amount of Rs.120.54
crore. NCLAT further directed, that in the event the
“resolution applicant” failed to undertake the payment of
additional amount of Rs.120.54 crore in addition to Rs.477
crore and deposit the said amount in escrow account within
30 days, the order of approval of the ‘resolution plan’ was to
be treated to be set aside. While allowing the appeal and
setting aside the directions of NCLAT, this Court observed
thus:
“30. The appellate authority has, in our
opinion, proceeded on equitable perception
rather than commercial wisdom. On the face
of it, release of assets at a value 20% below
its liquidation value arrived at by the valuers
seems inequitable. Here, we feel the Court
ought to cede ground to the commercial wis
dom of the creditors rather than assess the
resolution plan on the basis of quantitative
analysis. Such is the scheme of the Code.
Section 31(1) of the Code lays down in clear
terms that for final approval of a resolution
plan, the adjudicating authority has to be
satisfied that the requirement of sub-section
(2) of Section 30 of the Code has been com
plied with. The proviso to Section 31(1) of the
Code stipulates the other point on which an
adjudicating authority has to be satisfied.
That factor is that the resolution plan has
provisions for its implementation. The scope
of interference by the adjudicating authority
in limited judicial review has been laid down
in Essar Steel [Essar Steel India Ltd. Commit
tee of Creditors v. Satish Kumar Gupta,
(2020) 8 SCC 531] , the relevant passage
(para 54) of which we have reproduced in
earlier part of this judgment. The case of
MSL in their appeal is that they want to run
the company and infuse more funds. In such
circumstances, we do not think the appellate
authority ought to have interfered with the
order of the adjudicating authority in direct
ing the successful resolution applicant to en
hance their fund inflow upfront.”
154. This Court observed, that the Court ought to cede
ground to the commercial wisdom of the creditors rather
than assess the resolution plan on the basis of quantitative
analysis. This Court clearly held, that the appellate
authority ought not to have interfered with the order of the
adjudicating authority by directing the successful resolution
applicant to enhance their fund inflow upfront.
155. It would thus be clear, that the legislative
scheme, as interpreted by various decisions of this Court, 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. 156. No doubt, it is sought to be urged, that since
there has been a material irregularity in exercise of the
powers by RP, NCLAT was justified 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
I&B Code for completion of the process, have been
consciously approved by CoC. It is to be noted, that the
decision of CoC is taken by a thumping majority of 84.36%.
The only creditor voted in favour of KIAL is Kotak Bank,
which is a holding company of KIAL, having voting rights of
0.97%. We are of the considered view, that 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%. 157. It is further to be noted, that 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. It is not in dispute, that there was no
stay granted by NCLAT, while reserving the matters for
orders. After a gap of five months and eight days, NCLAT
passed the final order on 5.8.2020. It could thus be seen,
that 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, we do not find it
necessary to go into that aspect of the matter in light of our
conclusion, that NCLAT acted in excess of jurisdiction in
interfering with the conscious commercial decision of CoC. 158. It is also pointed out, that 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
we have already held, that the decision of NCLAT dated
5.8.2020 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. We are of the view that 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, we hold, that 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. 159. In that view of the matter, we find, that Civil
Appeal Nos. 2943-2944 of 2020 filed by Kalpraj; Civil Appeal
Nos. 2949-2950 of 2020 filed by RP and Civil Appeal Nos.
3138-3139 of 2020 filed by Deutsche Bank deserve to be
allowed. It is ordered accordingly. 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.
160. Insofar as, the Civil Appeals arising out of D.No.
24125 of 2020 filed by Fourth Dimension Solutions Limited
are concerned, it is submitted, that the appeal preferred by
it against the order of NCLT is still pending before NCLAT.
Without going into the merits of the rival contentions of the
parties, we direct NCLAT to decide the appeal of Fourth
Dimension Solutions Limited in accordance with law, as
expeditiously as possible, and in any case, within a period
of two months from today.
161. As such, all appeals are disposed of in view of the
above and pending applications, if any, shall stand disposed
of.
[B.R. GAVAI]