11th July, 2025 Approval of Resolution Plan - Orbit Financial Consultants Private Limited [I.A (IB)(Plan) No. 6/KB/2024 Connected with C.P. (IB) No. 281/KB/2022] (701.41 KB)

IN THE NATIONAL COMPANY LAW TRIBUNAL DIVISION BENCH, COURT NO. I KOLKATA I.A (IB)(Plan) NO. 6/KB/2024 Connected with C.P. (IB) NO. 281/KB/2022 An Application under Section 30 and 31 of the Insolvency and Bankruptcy Code, 2016 read with Regulation 39 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) 2016 as amended

IN THE MATTER OF: M/s. Orbit Financial Consultants Private Limited, a company incorporated under the Companies Act, 1956 having its registered office at 4, Dr. Rajendra Prasad Sarani 3rd Floor, Room No. 303, Kolkata-700001 … Corporate Debtor And Pankaj Kumar Kedia, Resolution Professional of M/s. Orbit Financial Consultants Private Limited having its office at 1, R.N. Mukherjee Road, 5th Floor, Room no. 4, Kolkata-700001. … Applicant Date of Pronouncement of Order: 1st July, 2025 CORAM: Smt. Bidisha Banerjee, Member (Judicial) Cmde Siddharth Mishra, Member (Technical)

APPEARANCE: For the Resolutional Professional: Mr. Shaunak Mitra, Adv. Ms. Sutapa Mitra, Adv.

KOLKATA Connected with

Page 2 of 33

ORDER

Per: Bidisha Banerjee, Member (Judicial)

1. The Court congregated through a hybrid mode. 2.The Ld. Counsels of both the parties were heard.
2. The instant application has been filed by Mr. Pankaj Kumar Kedia, the Resolution Professional, hereinafter referred to as the ‘RP/Applicant’ of M/s Orbit Financial Consultants Private Limited, the Corporate Debtor, for brevity ‘CD’ for approval of the Resolution Plan to complete the CIRP under the law in a time bound manner and to grant the following reliefs:

a. Order be passed to approve the Resolution Plan submitted by Adesh Saraf in respect of the Corporate Debtor. b. Such further or other order or orders be passed and/ or directions be given as this Tribunal may deem fit and proper.

4. Facts in Nutshell The present interlocutory application under Section 30 and 31 of the Insolvency and Bankruptcy Code 2016 read with Regulation 39 of the Insolvency of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) 2016 as amended and after approval of the resolution plan by the Committee of Creditors ("CoC"). This application was filed by Mr. Pankaj Kumar Kedia, Resolution Professional of M/s Orbit Financial Consultants Private Limited [U74140WB2009PTC136173] by invoking the provisions of section 30(6) of the Insolvency and Bankruptcy Code, 2016 ("the Code" or "IBC") read with regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate

KOLKATA Connected with

Page 3 of 33

Persons) Regulations, 2016 ("CIRP Regulations") for approval of a Resolution Plan in respect of M/s Orbit Financial Consultants Private Limited.

The underlying Company Petition in C.P. (IB) No. 281/KB/2022 was filed by M/s Orbit Financial Consultants Private Limited, hereinafter referred to as the Corporate Debtor to initiate Corporate Insolvency Resolution Process ("CIRP"), under section 10 of the Insolvency and Bankruptcy Code 2016, which was admitted vide order dated 19th July 2023. The Applicant was only appointed as the Interim Resolution Professional who was later confirmed as the Resolution Professional.

Prologue 5. Particulars of the Corporate Debtor

M/S. ORBIT FINANCIAL CONSULTANTS PRIVATE LIMITED is a Private Limited Company incorporated on 23.06.2009 bearing CIN: U74140WB2009PTC136173, registered office situated at 4, Dr. Rajendra Prasad Sarani, 3rd, Floor, Room No. 303, Kolkata-700001

6. Initiation of Corporate Insolvency Resolution Process

The Corporate Applicant, Orbit Financial Consultants Private Limited filed an application under Section 10 of the I&B Code, 2016 which was admitted on July 19, 2023, and Mr. Pankaj Kumar Kedia, the Applicant was appointed as the Interim Resolution Professional (IRP).

KOLKATA Connected with

Page 4 of 33

7. Expression of Interest The applicant had published invitations for Expression of Interest (EOI) through Form G on three occasions, first on September 11, 2023 and then a second on September 30, 2023 and third on November 6, 2023. Following the publications of the FORM G the applicant received numerous emails from the interested parties expressing interest in participating in the CIRP and have sought the Eligibility Criteria to proceed as a Resolution Applicants. In a prompt response, Applicant provided the comprehensive Expression of Interest (“EoI”) along with the necessary documents. Subsequently one Resolution Applicant showed interest on last date of receipt of EoI ie. 21 November, 2023 and sought for the detailed EoI and eligibility criteria. Same were provided promptly. But the EoI could not be submitted within time period.

In the 6th meeting of the Committee of Creditors (CoC), held on 28th November 2023, applicant proposed to reissue the Form G and following deliberations within the CoC, the COC decided for the reissuance of form G to solicit further Expressions of Interest from the interested parties for the last time and same was published on 29.11.2023 in Business Standard (English) and Ekdin (Bengali) in West Bengal.

This time also interest was shown by many parties and documents were shared with them. EoIs were received from two-Prospective Resolution Applicants (PRA) with Earnest Money Deposit (EMD) of Rs. 5,00,000/- deposited by both of them into the designated Bank account of CIRP. Subsequently, a comprehensive review of the EoIs was conducted, and both the PRAs were found eligible to participate in the Insolvency Resolution process and to submit Resolution Plan within 28.01.2024 as per time allowed under regulation 36A(3) of IBBI (Insolvency Resolution Process for Corporate Persons) Regulation 2016.

KOLKATA Connected with

Page 5 of 33

8. Constitution of CoC

The IRP, pursuant to Regulation 6(1) of the CIRP Regulations, made public announcement on 21 July 2023 published in Business Standard ("English") and Ekdin ("Bengali") newspapers, regarding initiation of Corporate Insolvency Resolution Process and called proof of claims from the financial and operational creditors, workers and employees of the corporate debtor in the specified forms. The last date of submission of claims was 2 August 2023.

The CoC was constituted on 11th August 2023 with the sole member being "Himalaya Gupta (Prop: Himalaya Gupta & Co.)". The list of creditors was updated from time to time and uploaded in the IBBI website.

The Applicant states that a total of eleven (11) CoC meetings have been held during the CIRP period, which are as follows:

Particulars Date of the CoC Meeting 1st CoC Meeting 18.05.2023 2nd CoC Meeting 20.08.2023 3rd CoC Meeting 29.09.2023 4th CoC Meeting 18.10.2023 5th CoC Meeting 04.11.2023 6th CoC Meeting 28.11.2023 7th CoC Meeting 23.12.2023 8th CoC Meeting 31.12.2023 9th CoC Meeting 29.01.2024 10th CoC Meeting 20.02.2024

KOLKATA Connected with

Page 6 of 33

11th CoC Meeting 09.03.2024

9. Evaluation and Voting The Resolution Professional received resolution plan from Mr. Adesh Saraf on 27th January, 2024. The resolution plans were opened during the 11th CoC meeting held on 9th March 2024. During the said 11th meeting, after elaborate discussions and deliberations, the plan of Mr. Adesh Saraf was approved by 100% voting share.

10. Letter of Intent Thereafter LOI was issued on 10.03.2024 (page 8 of the Supplementary Affidavit). Performance guarantee on approval of plan was adjusted with the EMD provided by the Resolution Applicant (page 11 of the supplementary affidavit)

11. Contents of Resolution Plan The information with regard to the amount admitted and the amount proposed to be paid by the Successful Resolution Applicant, i.e, Adesh Saraf under the said Resolution Plan is tabulated hereunder:

Sl. No.
Cost to be Incurred Amount (In Lacs) 1. CIRP Cost 10.00 2. Operational Creditors 2.00 3. Capital Expenditure 25.00

Total 37.00

KOLKATA Connected with

Page 7 of 33

Proposal for employees and workmen There are no claims as per the Information Memorandum as such no payment has been proposed for the workmen and employees. It is however clarified that no dues will be payable to workmen and employees under any head whatsoever and howsoever including but not limiting to the retrenchment compensation, gratuity etc. up to the date of approval of the Resolution Plan by the Adjudicating Authority.

Proposal for Operational Creditors (Other than Workman and Employee) As per the Information Memorandum revised till date issued by the Resolution Professional the CD only one operational creditor. The operation creditor has been proposed to be paid Rs. 2.00 Lacs which is 100% of the claim.

Proposal for Financial Creditor As there are no financial creditor no payment has been provided

12. Appointment of Registered Valuers

The Applicant appointed registered valuers in accordance with Regulation 27 of the CIRP Regulations, 2016 to determine the fair value and liquidation value of the Corporate Debtor in accordance with Regulation 35 thereof. The average Fair value and the Liquidation value of the Company obtained from the appointed Registered Valuers as on 19.07.2023 are as follows:

Fair Value: Rs. 90,08,639 Liquidation Value: Rs. 60,12,131

KOLKATA Connected with

Page 8 of 33

13. Compliance of the Resolution Plan submitted by the SRA with various provisions.

The Applicant has filed a Compliance Certificate in prescribed form, i.e., Form 'H' (Annexure E, Pgs. 61 to 69) in compliance with regulation 39(4) of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.

The Applicant has submitted details of various compliances as envisaged within the Code and the CIRP Regulations which a resolution plan should adhere to, which is reproduced hereunder:

Section of the Code Regulation No Requirement with respect to Resolution Plan Clause of Resolution Plan Compliance (Yes/No) 25(2)(h) Whether the Resolution Applicant meets the criteria approved by the CoC having regard to the complexity and scale of operations of business of the CD?

Yes Section 29A Whether the Resolution Applicant is eligible to submit resolution plan as

Yes

KOLKATA Connected with

Page 9 of 33

per final list of Resolution Professional or Order, if any, of the Adjudicating Authority?

Section 30(1) Whether the Resolution Applicant has submitted an affidavit stating that it is eligible? Yes

Section 30(2)

Whether the Resolution Plan

(a) provides for the payment of insolvency resolution process costs?

(b) provides for the payment of the debts of operational creditors?

(c) provides for the management of the affairs of the Corporate debtor?

(d) provides for

Clause 5.1

Clause 5.3
Chapter VII

Chapter VIII
2.3(b)

Yes

Yes

Yes

Yes

KOLKATA Connected with

Page 10 of 33

the implementation and supervision of the resolution plan?

(e) contravenes any of the provisions of the law for the time being in force?

Yes

Section 30(4) Whether the Resolution Plan (a) is feasible and viable, according to the CoC?

(b) has been approved by the CoC with 66% voting share?

Refer Minutes of 11 CoC Meeting Refer Voting Sheet Yes Section 31(1) Whether the Resolution Plan has provisions for its effective implementation plan, according to the CoC? Chapter VIII Yes Regulation 38 (1) Whether the Resolution Plan identifies specific sources of funds that will be used

Yes

KOLKATA Connected with

Page 11 of 33

to pay the-

(a) insolvency resolution process costs?

(b) liquidation value due to operational creditors? liquidation value due to dissenting financial creditors?

Clause 5.1

Clause 5.3 Regulation 38(1A) Whether the resolution plan includes a statement as to how it has dealt with the interests of all stakeholders?

Clause 5.8 Yes Regulation 38(2) Whether the Resolution Plan provides

(a) the term of the plan and its implementation schedule?

(b) for the management and control of the business of the

Clause 8.1
Chapter VII

Clause 8.3

Yes

Yes

KOLKATA Connected with

Page 12 of 33

corporate debtor during its term?

(c) adequate means for supervising its implementation?

Yes 38(3)

Whether the resolution plan demonstrates that

(a) it addresses the cause of default? (b) it is feasible and viable?

(c) it has provisions for its effective implementation?

(d) it has provisions for approvals required and the timeline for the same?

(e) the resolution applicant has the capability to implement the resolution plan? Clause 4.1 Clause 4.2 Clause 4.3 Clause 8.2 and 8.4 Net worth certificate enclosed

Yes

Yes

Yes

Yes

Yes 39(2)

Whether the RP

No

No

KOLKATA Connected with

Page 13 of 33

has filed applications in respect of transactions observed, found or determined by him?

Regulation 39(4) Provide details of performance security received,

as referred to in sub-regulation (4A) of regulation 368

Already Received Ra 10 lacs as against Plan of Rs 12 lacs

No Section of the Code Regulation No Requirement with respect to Resolution Plan Clause of Resolution Plan Compliance (Yes/No) 25(2)(h)

Whether the Resolution Applicant meets the criteria approved by the CoC having regard to the complexity and scale of operations of business of the CD?

Annexure Yes Section 29A

Whether the Resolution Appendix- Yes

KOLKATA Connected with

Page 14 of 33

Applicant is eligible to submit resolution plan as per final list of Resolution Professional or Order, if any, of the Adjudicating Authority?

Section 30(1)

Whether the Resolution Applicant has submitted an affidavit stating that it is eligible?

Appendix- Yes Section 30(2)

Whether the Resolution Plan

(a) provides for the payment of insolvency resolution process costs?

(b) provides for the payment of the debts of operational creditors?

(c) provides for the management of the affairs of the Corporate debtor?

Clause 5.1

Clause 5.3

Chapter VII

Chapter VIII

2.3(b)

KOLKATA Connected with

Page 15 of 33

(d) provides for the implementation and supervision of the resolution plan?

(e) contravenes any of the provisions of the law for the time being in force?

Section 30(4)

Whether the Resolution Plan

(b) is feasible and viable, according to the CoC?

(b) has been approved by the CoC with 66% voting share?

Refer Minutes of 11 CoC Meeting Refer Voting Sheet Refer Minutes of 11 CoC Meeting Refer Voting Sheet

14. Details of the Resolution Plan and/ or Payment Schedule

The Learned Counsel for the Applicant herein has submitted that the total plan outlay/ value is of Rs. 37 Lakhs wherein the Resolution Applicant proposes to invest an amount of Rs. 2 lakhs against admitted claim of payable to operational creditor. In addition to above the RA proposes to invest an amount

KOLKATA Connected with

Page 16 of 33

of Rs 25 Lakhs towards working capital. Complete layout of distribution of Resolution Plan value has been captured in the table below:

Sl. No.
Category Stakeholde r Sub- Category of Stakeholder Amoun t Claimed Amount Admitte d

Amount Provide d under the Plan Amount Provide d to the Amount Claimed (1) (2) (3) (4) (5) (6) (7) 1.

Secured Financial Creditors

(a) Creditors not having a right to vote under sub- section (2) of section 21

(b) Other than (a) above:

(i) who did not vote in favour of the resolution Plan

(ii) who voted in favour of the resolution plan

Total[(a)+(b)]

NIL

NIL

NIL

NIL

NIL

NIL

NIL

NIL

NIL

NIL

NIL

NIL

NIL

NIL

NIL

NIL

KOLKATA Connected with

Page 17 of 33

Unsecured Financial Creditors

Operational Creditors

(a) Creditors not having a right to vote under sub- section (2) of section 21

(b) Other than (a) above: (i) who did not vote in favour of the resolution Plan

(ii) who voted in favour of the resolution plan

Total(a)+(b)

(a) Related Party of Corporate Debtor

(b) Other than (a) above:

(i)Governmen t (ii) Workmen

(iii)Employee s

(iv) Others

NIL

NIL

NIL

NIL

2.00

NIL

NIL

NIL

NIL

2.00

NIL

NIL

NIL

NIL

2.00

NIL

NIL

NIL

NIL

2.00

KOLKATA Connected with

Page 18 of 33

Other debts and dues

Total[(a) +(b)

2.00

NIL

2.00

NIL

2.00

NIL

100%

NIL

Gran d Total

2.00 2.00 2.00 100%

15. In so far as the approval of the Resolution dated 27th January, 2024 submitted by Mr. Adesh Saraf, Resolution Applicant is concerned, this Adjudicating Authority is bound by the judgement of the Hon’ble Supreme Court of India in K. Sashidhar vs. Indian Overseas Bank and Ors. reported in (2019) 12 SCC 150: MANU/SC/0189/2019, wherein it is held that:

“35. […] Reverting to Section 30(2), the enquiry 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 repayment of other debts of the corporate debtor, (ii) the repayment of the debts of operational creditors

KOLKATA Connected with

Page 19 of 33

in prescribed manner, (iii) the management of the affairs of the corporate debtor, (iv) the implementation and supervision of the resolution plan, (v) 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. […]. To wit, the feasibility and viability of the proposed resolution plan and including their perceptions about the general capability of the resolution applicant to translate the projected plan into a reality. The resolution 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 domain of the financial creditors who are called upon to vote on the resolution plan Under Section 30(4) of the I & B Code.”
(Emphasis Added)

16. Further, the Hon’ble Apex Court in Jaypee Kensington Boulevard Apartments Welfare Association and Ors. vs. NBCC (India) Ltd. and Ors. reported in (2022) 1 SCC 401: MANU/SC/0206/2021 at Para 216, has laid down that:

“The Adjudicating Authority has limited jurisdiction in the matter of approval of a resolution plan, which is well-defined and circumscribed by Sections 30(2) and 31 of the Code. In the adjudicatory process concerning a resolution plan under IBC, there is no scope for interference with the commercial aspects of the decision of the CoC; and there is no scope for substituting

KOLKATA Connected with

Page 20 of 33

any commercial term of the resolution plan approved by Committee of Creditors. … .”
(Emphasis Added)

17. Further, in Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta reported at (2020) 8 SCC 531: MANU/SC/1577/2019, the Hon’ble Apex Court has propounded that:

“38. This Regulation fleshes out Section 30(4) of the Code, making it clear that ultimately it is the commercial wisdom of the Committee of Creditors which operates to approve what is deemed by a majority of such creditors to be the best resolution plan, which is finally accepted after negotiation of its terms by such Committee with prospective resolution applicants.”
(Emphasis Added)

Our Inference On the Conduct of CoC:
18. Upon hearing, the submission made by the Learned Counsel appearing on behalf of the Resolution Professional of Corporate Debtor herein and perusing the record and/or documents placed before this Adjudicating Authority, we would find that the Resolution dated 27.01.2024 submitted by Mr. Adesh Saraf, the Successful Resolution Applicant has been approved by the CoC of the Corporate Debtor by 100% voting share on 09.03.2024 and Mr. Adesh Saraf is declared as the “Successful Resolution Applicant”. As per the CoC, the plan meets the requirement of being viable and feasible for the revival of the Corporate Debtor. Preponderantly, all the compliances have been done by the

KOLKATA Connected with

Page 21 of 33

Resolution Applicant for making the plan effective after approval by this Adjudicating Authority.

19. In the course of the hearing, the Ld. Counsel for the applicant would submit that the Resolution Plan complies with all the provisions of the Insolvency and Bankruptcy Code, 2016, read with relevant Regulations of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and does not contravene any of the provisions of law for the time being in force.

20. Upon perusal of the documents on record and/or documents, we are satisfied that the Resolution dated 27th January, 2024 submitted by Mr. Adesh Saraf, the Successful Resolution Applicant, is in accordance with sections 30 and 31 of the I&B Code, 2016 and also complies with regulations 38 and 39 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations,

On the Statutory Obligations or Seeking Approvals from the Authorities:
21. As far as the question of granting time to comply with the statutory obligations or seeking approvals from authorities is concerned, the Resolution Applicant is directed to do so within one year from the date of this order, as prescribed under section 31(4) of the I&B Code

On the Reliefs, Waivers and Concessions:

22. We have perused the reliefs, waivers and concessions as sought and as provided in the Resolution Plan. It is evident that some of the reliefs, waivers and concessions sought by the Resolution Applicant come within the ambit of

KOLKATA Connected with

Page 22 of 33

the I&B Code and the Companies Act 2013, while many others fall under the power and jurisdiction of different government authorities/departments. This Adjudicating Authority has the power to grant reliefs, waivers and concessions only concerning the reliefs, waivers and concessions that are directly with the I&B Code and the Companies Act (within the powers of the NCLT). The reliefs, waivers and concessions that pertain to other governmental authorities/departments may be dealt with by the respective competent authorities/forums/offices, Government or Semi-Government of the State or Central Government concerning the respective reliefs, waivers and concession, whenever sought for. The competent authorities including the Appellate authorities may consider granting such reliefs, waivers and concessions keeping in view the spirit of the I&B Code, 2016 and the Companies Act, 2013.

23. It is almost trite and fairly well-settled that the Resolution Plan must be consistent with the extant law. The Resolution Applicant shall make necessary applications to the concerned regulatory or statutory authorities for the renewal of business permits and supply of essential services, if required, and all necessary forms along with filing fees etc. and such authority shall also consider the same keeping in mind the objectives of the Code, which is essentially the resolving the insolvency of the Corporate Debtor.

24. In this context, we would rely upon the judgment in Embassy Property Developments Pvt. Ltd. vs. State of Karnataka reported in MANU/SC/1661/2019: (2020) 13 SCC 308, wherein, the Hon’ble Apex Court has laid down that:

“39. If NCLT has been conferred with jurisdiction to decide all types of claims to property, of the corporate debtor, Section 18(f)(vi) would not

KOLKATA Connected with

Page 23 of 33

have made the task of the interim resolution professional in taking control and custody of an asset over which the corporate debtor has ownership rights, subject to the determination of ownership by a court or other authority. In fact an asset owned by a third party, but which is in the possession of the corporate debtor under contractual arrangements, is specifically kept out of the definition of the term "assets" under the Explanation to Section 18. This assumes significance in view of the language used in Sections 18 and 25 in contrast to the language employed in Section 20. Section 18 speaks about the duties of the interim resolution professional and Section 25 speaks about the duties of resolution professional. These two provisions use the word "assets", while Section 20(1) uses the word "property" together with the word "value". Sections 18 and 25 do not use the expression "property". Another important aspect is that Under Section 25(2)(b) of IBC, 2016, the resolution professional is obliged to represent and act on behalf of the corporate debtor with third parties and exercise rights for the benefit of the corporate debtor in judicial, quasi-judicial and arbitration proceedings. Section 25(1) and 25(2)(b) reads as follows:

25. Duties of resolution professional – (1) It shall be the duty of the resolution professional to preserve and protect the assets of the corporate debtor, including the continued business operations of the corporate debtor.

(2) For the purposes of Sub-section
(1), the resolution professional shall undertake the following actions:

KOLKATA Connected with

Page 24 of 33

(a).............

(b) represent and act on behalf of the corporate debtor with third parties, exercise rights for the benefit of the corporate debtor in judicial, quasi judicial and arbitration proceedings.

This shows that wherever the corporate debtor has to exercise rights in judicial, quasi-judicial proceedings, the resolution professional cannot short-circuit the same and bring a claim before NCLT taking advantage of Section 60(5).

40.Therefore in the light of the statutory scheme as culled out from various provisions of the IBC, 2016 it is clear that wherever the corporate debtor has to exercise a right that falls outside the purview of the IBC, 2016 especially in the realm of the public law, they cannot, through the resolution professional, take a bypass and go before NCLT for the enforcement of such a right.” (Emphasis Added)

On the Extinguishment of Claims:

25. Concerning the waivers with regard to the extinguishment of claims which arose prior to the initiation of the CIR Process and which have not been claimed are granted in terms of the law laid down by the Hon’ble Apex Court in Ghanashyam Mishra and Sons Private Limited vs. Edelweiss Asset Reconstruction Company Limited reported in MANU/SC/0273/2021:

KOLKATA Connected with

Page 25 of 33

(2021)9SCC657: [2021]13SCR737 that “once a resolution plan is duly approved by the Adjudicating Authority Under Sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan.”

52. Further, the relevant part of the Ghanshyam Mishra judgment (supra) in this regard is given below:

“61. All these details are required to be contained in the information memorandum so that the resolution applicant is aware, as to what are the liabilities, that he may have to face and provide for a plan, which apart from satisfying a part of such liabilities would also ensure, that the Corporate Debtor is revived and made a running establishment. The legislative intent of making the resolution plan binding on all the stake-holders after it gets the seal of approval from the Adjudicating Authority upon its satisfaction, that the resolution plan approved by CoC meets the requirement as referred to in Sub-section (2) of Section 30 is, that after the approval of the resolution plan, no surprise claims should be flung on the successful resolution applicant. The dominant purpose is, that he should start with fresh slate on the basis of the resolution plan approved.’

KOLKATA Connected with

Page 26 of 33

“62. This aspect has been aptly explained by this Court in the case of Committee of Creditors of Essar Steel India Limited through Authorised Signatory (supra).’

“107. For the same reason, the impugned NCLAT judgment [Standard Chartered Bank v. Satish Kumar Gupta] in holding that claims that may exist apart from those decided on merits by the resolution professional and by the Adjudicating Authority/Appellate Tribunal can now be decided by an appropriate forum in terms of Section 60(6) of the Code, also militates against the rationale of Section 31 of the Code. A successful resolution applicant cannot suddenly be faced with "undecided" claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who would successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution applicant does on a fresh slate, as has been pointed out by us hereinabove. For these reasons, NCLAT judgment must also be set aside on this count.” (Emphasis Added)

26. In this regard we also rely on the judgement of the Hon’ble High Court of Rajasthan in the matter of EMC v. State of Rajasthan, Civil Writ Petition

KOLKATA Connected with

Page 27 of 33

No. 6048/2020 with 6204/2020 reported in (2023) ibclaw.in 42 HC, wherein it has been inter-alia held that:
“Law is well-settled that with the finalization of insolvency resolution plan and the approval thereof by the NCLT, all dues of creditors, Corporate, Statutory and others stand extinguished and no demand can be raised for the period prior to the specified date.” (Emphasis Added)

27. Authority, all such claims, that are not a part of the resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan. The Hon’ble Supreme Court of India further laid down that all the dues including the statutory dues owed to the Central Govt, any State Govt or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period before the date on which the Adjudicating Authority grants its approval under Section 31 of the I&B Code could be continued.

On Inquiries, Litigations, Investigations, and Proceedings:

28. For the reliefs and waivers sought for all inquiries, litigations, investigations, and proceedings shall be granted strictly as per section 32A of the I&B Code, 2016 and the provisions of the law as may be applicable.

29. In this context, we would infer that upon the approval of the Resolution Plan, the Corporate Debtor avails the limbs of new management to revive its business. Thus, all the past liabilities of the Corporate Debtor including criminal liability prior to the initiation of the CIR Process shall stand effaced

KOLKATA Connected with

Page 28 of 33

and the new management will step into the shoes of the company with a fresh or clean slate. Hence, the old management shall be liable to face all the offences committed prior to the commencement of the CIR Process. At this junction, we would rely upon the judgment rendered by the Hon’ble Apex Court in Ajay Kumar Radheyshyam Goenka vs. Tourism Finance Corporation of India Ltd. reported in MANU/SC/0244/2023: (2023) 10 SCC 545 that:

“67. Thus, Section 32A broadly leads to:
a. Extinguishment of the criminal liability of the corporate debtor, if the control of the corporate debtor goes in the hands of the new management which is different from the original old management.
b. The prosecution in relation to "every person who was a "designated partner" as defined in Clause (j) of Section 2 of the Limited Liability Partnership Act 2008 (6 of 2009), or an "officer who is in default", as defined in Clause (60) of Section 2 of the Companies Act. 2013 (18 of 2013), or was in any manner in charge of, or responsible to the corporate debtor for the conduct of its business or associated with the corporate debtor in any manner and who was directly or indirectly involved in the commission of such offence" shall be proceeded and the law will take it’s own course. Only the corporate debtor (with new management) as held in Para 42 of P. Mohanraj will be safeguarded.

c. If the old management takes over the corporate debtor (for MSME Section 29A does not apply (see 240A), hence for MSME old management can takeover) the corporate debtor itself is also not safeguarded from prosecution Under Section 138 or any other offences.”

KOLKATA Connected with

Page 29 of 33

(Emphasis Added)

30. Further, in a very recent judgment rendered by the Hon’ble High Court of Madras in Vasan Healthcare Pvt. Ltd. vs. The Deputy Director of Income Tax (Investigation), Unit 3(2) reported in MANU/TN/0243/2024: (2024) ibclaw.in 80 HC that:

“9. In the above judgement, the Apex Court after dealing with the provision in detail, came to a categoric conclusion that insofar as the criminal prosecution is concerned, the criminal liability of the corporate debtor viz., company gets completely wiped off and the new management is allowed to take over the company on a clean slate. However, the Apex Court also made it clear that the persons who are involved in the day today affairs of the company and were incharge and responsible for running of the company, will be liable to face all the offence committed prior to the commencement of the Corporate Insolvency Resolution Process. There is no escape for those persons from criminal liability even though the corporate debtor is given a clean slate and is handed over to the new Management.

10. Useful reference can also be made to the judgement of the Calcutta High Court in Tantia Constructions Limited Vs. Krishna Hi-Tech Infrastructure P Ltd] in CRP No. 172 of 2022. The relevant portions in the order are extracted hereunder :-

KOLKATA Connected with

Page 30 of 33

4. For the application of Section 32A of IBC, 2016 and in light of the present matter, it is pertinent to determine the following two issues, i.e.,

i. Whether the offence as complained in the impugned criminal proceedings has been alleged to be committed before the initiation of corporate insolvency resolution process or during such process?

ii. Whether the resolution plan has resulted in change in the management or corporate debtor in consonance with the provisions of Section 32A(1) of IBC, 2016?

5. With respect to Issue No. 1, it is pertinent to note that the corporate insolvency resolution process as against the Petitioner/Corporate Debtor was initiated on 13.03.2019 when the application was accepted and the Order of Moratorium under Section 14 of the IBC, 2016 was imposed by NCLT, Kolkata in the aforementioned case. The complaint that commenced the impugned criminal proceedings was filed on 22.07.2019 before the concerned court by the opposite party. Whereby, said alleged offence so complained, took place before or during the corporate insolvency resolution process and is covered under the ambit of Section 32A of IBC, 2016.

6. With respect to Issue No. 2, it is observed that the petitioner has not made specific submission in this regard. However, it is the submission of the opposite party that the impugned complaint case does not concern itself with the new directors that were appointed after

KOLKATA Connected with

Page 31 of 33

takeover by the Resolution Applicant in line with the Resolution Plan so approved by NCLT dated 24.02.2022. It is their submission that they are primarily aggrieved by the actions of petitioner when it was in control of erstwhile Directors

11. The above judgement clearly lays down the law on the subject. The moment the Corporate Insolvency Resolution Process is initiated against the corporate debtor and the application is accepted by the NCLT, the moratorium comes into operation. Once the resolution plan is accepted by the NCLT and orders are passed and the Corporate debtor gets into hands of the new management, all the past liabilities including the criminal liability of the Corporate debtor gets wiped off and the new Management takes over the company with clean slate.”
    (Emphasis Added)

12. The Resolution Plan thus approved shall be binding on the Corporate Debtor and all other stakeholders involved in terms of Section 31 of the I&B Code, so that the revival of the Corporate Debtor Company shall come into force with immediate effect without any delay.

13. The Moratorium imposed under section 14 of the Code by virtue of the order initiating the CIR Process, shall cease to have effect from the date of this order.

14. The Resolution Professional shall submit the records collected during the commencement of the proceedings to the Insolvency & Bankruptcy Board of

KOLKATA Connected with

Page 32 of 33

India for their record and also return them to the Resolution Applicant or New Promoters

34. Liberty is hereby granted for moving any application, if required, in connection with the successful implementation of this Resolution Plan.

35. A copy of this Order is to be submitted to the Registrar of Companies (RoC) to whom the company is registered, by the Resolution Professional

36. The Resolution Professional shall stand discharged from his duties with effect from the date of this Order.

37. The Resolution Professional is further directed to hand over all records, premises/ factories/ documents to the Resolution Applicant to finalise the further line of action required for starting the operation. The Resolution Applicant shall have access to all the records/ premises factories/ documents through the Resolution Professional to finalise the further line of action required for starting the operation.

38. The Registry of this Adjudicating Authority is directed to send e-mail copies of the order forthwith to all the parties and their Learned Counsels for information and for taking necessary steps.

39. In terms of the view above, the interlocutory application being I.A. (IB) (Plan) No. 6/KB/2024 along with the main company petition being C.P. (IB) No. 281/KB/2022 shall stand disposed of accordingly.

KOLKATA Connected with

Page 33 of 33

40. Certified copies of this order, if applied for with the Registry of this Adjudicating Authority, be supplied to the parties upon compliance with all requisite formalities.

41. File be consigned to the record.

Cmde Siddharth Mishra Bidisha Banerjee Member (Technical) Member (Judicial) This Order is signed on this, the 1st July, 2025

Oindrila, K. (LRA)