NCLAT REJECTS APPELLANT’S CLAIMS FILED POST-APPROVAL OF RESOLUTION PLAN BY COMMITTEE OF CREDITORS

A Three Judge Bench of the National Company Law Appellate Tribunal (NCLAT) comprising of Justice Rakesh Kumar Jain, Mr. Naresh Salecha and Mr Indevar Pandey (Technical Members) passed a Judgment dated 20-05-2024 in the matter of Superintendent of Stamps & Inspector General of Registration vs. Avil Menezes Resolution Professional of AMW Autocomponent Limited., Company Appeal. (AT) (Ins) No. 1591 of 2023 & I.A. No. 5750 of 2023 and observed that any claims made after the committee of creditors (CoC) has approved a resolution plan should not be considered valid. Further, the Court’s decision upheld the principle set by the Supreme Court of India that once the CoC approves a Resolution Plan, the corporate insolvency resolution process (CIRP) should not be extended by allowing new claims.

FACTS:

i) That the Appeal above filed before the NCLAT, Principal Bench, New Delhi by the Superintendent of Stamps and Inspector General of Registration (Appellant) against one, Avil Menezes, Resolution Professional of AMW Autocomponent Limited (Respondent), challenged the Order dated 12.10.2023 issued by the Ld. National Company Law Tribunal, Ahmedabad Bench (‘Adjudicating Authority’) in IA No. 692 (AHM) of 2021 in CP (IB) No. 185 (AHM) of 2018. Further, the Appellant is a statutory body of the Government of Gujarat, operating under the provisions of the Gujarat Stamp Act, 1958 (Act).

ii) The Appellant submitted claims totalling Rs. 15,38,79,179/- (Rupees Fifteen Crores Thirty Eight Lakhs Seventy Nine Thousand One Hundred and Nine only) based on an Order dated 29.08.2012 of the Gujarat High Court in Company Petition No. 133 of 2012 regarding the demerger of relevant companies. The Stamp Duty accrued due to the demerger of Asia Motors Works Ltd. (Transferor), AMW Motors Ltd., and AMW Autocomponent Ltd. (Transferees).

iii) The Appellant filed an Interlocutory Application (I.A. No. 1092 of 2023) in CP (IB) No. 185 of 2019, seeking a declaration that the claim for Stamp Duty should not be ignored by the Resolution Professional due to late filing. Despite bringing this to the Adjudicating Authority’s attention on 12.10.2023, the Authority did not consider it. The Appellant alleged that the Tribunal did not acknowledge his demand for Rs. 15,38,79,179/-.

iv) The Appellant argued that without paying statutory claims, the Company could not obtain a clear and marketable title for the properties. He criticized the Resolution Professional for not considering the Corporate Debtor’s agreement in Registered Mortgage Deeds on 08.05.2014 to execute related documents within three months, subject to the outcome of Special Civil Application No. 14182 of 2013 pending before the High Court.

v) The Gujarat High Court approved the demerger on 29.08.2012, and the demerged company AMW Ltd. sought an opinion from the Collector and Additional Superintendent of Stamps on Stamp Duty under Section 31 of the Act (Adjudication as to proper stamp). The Collector, on 29.07.2013, determined that Asia Motor Works Ltd. and AMW Auto Component Ltd. owed Rs. 7,50,15,130/- and Rs. 5,53,64,009/- respectively towards Stamp Duty.

vi) The Corporate Debtor challenged the Collector’s Opinion in Special Civil Application No. 14182 of 2013 before the Gujarat High Court, which granted interim relief on 12.09.2013. The Corporate Debtor later withdrew the Application on 27.01.2020. Subsequently, the Corporate Debtor approached the Chief Controlling Revenue Authority under Section 53(1) of the Act (Allowance for spoiled or misused stamps how to be made), challenging the Collector’s opinion. This challenge was rejected on 20.04.2020 due to limitation grounds.

vii) The Indian Overseas Bank, as a Financial Creditor, initiated an Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (Code) (Initiation of corporate insolvency resolution process by financial creditor) (CP (IB) No. 185 of 2018) AMW Autocomponent Limited (Corporate Debtor), which was admitted, and the CIRP for the Corporate Debtor commenced on 01.09.2020 and the Interim Resolution Professional (IRP) was appointed. Following the CIRP initiation, the IRP issued a Public Notice inviting claims on 03.09.2020.

viii) On 22.01.2021, exercising powers under Section 39(1)(b) of the Act (Instruments not duly stamped inadmissible in evidence, etc) r/w Section 33 of the Act (Examination and impounding of instruments), the Appellant issued a notice for recovering the stamp amount with a penalty and for impounding the documents. The Resolution Professional (RP) responded on 17.02.2021, informing the Appellant about the CIRP proceedings. The Appellant claimed he was informed for the first time by the said letter and had not received prior communication.

ix) On 20.10.2021, the Appellant imposed stamp duty with a penalty and created a charge on the property in the revenue record. In response to the Public Advertisement dated 03.09.2020, the Appellant filed claims on 23.03.2023, but the RP did not consider them.

x) The Appellant argued that the Impugned Order dated 12.10.2023 that failed to consider the claims of the Appellant, was illegal because it did not recognize that the demerger and related stamp duty were approved in 2012. He contended that the Corporate Debtor unsuccessfully sought relief from the Gujarat High Court and withdrew the Petition on 27.01.2020, while the Financial Creditor filed the Section 7 Application, and the moratorium was declared on 01.09.2020. The Appellant asserted that moratorium under Section 14 of the Code did not apply to its claims, which were approved much earlier in 2012

xi) The Appellant emphasized that the proceedings regarding the Corporate Debtor’s properties began before the moratorium on 01.09.2020. He argued that without paying the stamp duty, the Corporate Debtor could not transfer valid title to the properties. The Appellant maintained that any instrument chargeable with duty that is not duly stamped cannot be used as evidence, thus questioning the Corporate Debtor’s title to the properties.

xii) The Appellant submitted that the Mortgage Deed executed on 08.05.2014 between the resulting companies (from the demerger) in favour of IDBI Trusteeship Services Ltd. required registration upon finalizing the stamp duty. Therefore, the Corporate Debtor could not avoid paying the stamp duty. The Appellant reiterated that without stamp duty payment, the Corporate Debtor could not transfer its property as valid documents to the Resolution Applicant, arguing that his claims were covered under Section 3(4) of the Code (charge). He added that a charge created on the properties on 10.05.2022 should be considered under Section 3(4) of the Code.

xiii) The Appellant cited the Supreme Court judgment in State Tax Officer Vs. Rainbow Papers Limited [(2022) SCC OnLine SC 1162], asserting that Government dues qualified as Secured Creditors under Section 3(30) (Secured Creditor) and Section 3(31) (Security Interest) of the Code. He also referenced several other Supreme Court judgments emphasizing the mandatory nature of stamp duty payment and the implications of unpaid stamp duties.

NCLAT OBSERVATIONS

1) The Respondent objected to the Appellant filing claims in Form ‘F’ instead of Form ‘B’. However, the NCLAT rejected this objection, citing the Supreme Court’s judgment in Greater Noida Industrial Development Authority Vs. Prabhjit Singh Soni & Anr [(2024) INSC 102], which clarified that filing claims in the wrong form is not a ground for rejection.

2) The NCLAT noted that the Appellant filed their claims on 23.03.2023, significantly after the Public Announcement was made on 03.09.2020. Despite being informed on 17.02.2021, the Appellant delayed filing the claim for over two years, which was not satisfactorily explained. The Tribunal emphasized that timely submission of claims is crucial to the resolution process.

3) The demerger was approved by the Gujarat High Court in 2012, with the relevant stamp duty determined in 2013. The NCLAT questioned the Appellant about actions taken to recover the stamp duty since 2012. The Appellant’s failure to provide a clear response indicated an unexplained delay even before the CIRP initiation.

4) The Appellant’s argument that the moratorium under Section 14 would not apply to statutory dues, was found unsustainable. The NCLAT observed that the Code prohibits ongoing proceedings against the Corporate Debtor once the CIRP begins.

5) Citing the Supreme Court judgments in CoC of Essar Steel India Limited through Authorised Signatory v. Satish Kumar Gupta, [(2020) 8 SCC 531] and Ghanshyam Mishra and Sons v. Edelweiss Asset Reconstruction Company Limited, (2021) 9 SCC 657, the NCLAT reinforced that once a Resolution Plan is approved, new or undecided claims cannot be entertained. This ensures the Resolution Applicant is not burdened with unforeseen claims post-approval.

6) The NCLAT noted that IA No. 1092 of 2023, filed by the Appellant on similar grounds, was still pending. This rendered the current Appeal premature.

7) The NCLAT acknowledged the commercial wisdom of the CoC in approving the Resolution Plan. The Tribunal emphasized that all stakeholders, including secured financial creditors, operational creditors, and government dues, had to accept haircuts, and the Appellant’s challenge regarding non-payment of full dues was unconvincing.

8) The NCLAT observed that the Adjudicating Authority had considered the stamp duty issue while approving the Resolution Plan, noting that the Plan addressed the interests of all stakeholders and included provisions for its effective implementation.

CONCLUSION

Based on these observations, the NCLAT found no merit in the Appellant’s claims and dismissed the Appeal, emphasizing the importance of timely claim submissions and respecting the commercial decisions made by the COC during the CIRP process. The Appeal was dismissed with no costs, and the Interlocutory Applications were also closed.

 

Sakshi Raghuvanshi

Senior Legal Associate

The Indian Lawyer