T.O. Souriyar Vs. State of Kerala - Thus, it could be safely concluded that the offence of cheating envisaged under Indian Penal Code would be attracted in those cases of dishonour of cheques due to closure of account where the mens rea, that is, the fraudulent or dishonest intention of the drawer at the time of issuance of the cheque, to deceive the payee, is established from the facts and circumstances of the case.

  HC Kerala (30.11.2023) in T.O. Souriyar Vs. State of Kerala [Crl.R.P No.441 of 2005, Neutral Citation - 2023/KER/75601] held that.

• If it is shown that the 1st respondent was not having any intention at all to return the amount and that the cheque was issued only as a ploy to deceive the revision petitioner, the element of cheating, as envisaged under Section 415 IPC would be clearly brought out in the case on hand.

• The distinction lies on the pertinent question as to the mens rea of the drawer to deceive the payee at the time when he issues the cheque, pretending it to be one drawn on a valid and live account maintained by him. True that the evidence in such cases shall be meticulously analysed to ascertain whether the drawer was having the intention, right from the very beginning, to defeat the attempt of the payee to encash the cheque which he had issued ostensibly to make payment of the amount covered by it.

• Thus, it could be safely concluded that the offence of cheating envisaged under Indian Penal Code would be attracted in those cases of dishonour of cheques due to closure of account where the mens rea, that is, the fraudulent or dishonest intention of the drawer at the time of issuance of the cheque, to deceive the payee, is established from the facts and circumstances of the case.

Excerpts of the Order;    

Whether the offence of cheating punishable under Section 417 I.P.C or Section 420 I.P.C is attracted if a person, after voluntarily closing his account, issues a cheque towards the discharge of a pecuniary liability, leading to the inevitable consequence of its dishonour on the ground ‘account closed’? It is the above question, which is to be resolved in this revision petition.

# 2. The facts, in conspectus, necessary for the disposal of this petition are as follows : The revision petitioner is the de facto complainant, and the 1 st respondent is the accused, in C.C.No.561/1999 of Judicial First Class Magistrate Court-I, Aluva, a case instituted on Police Report in respect of the offence under Section 420 I.P.C. Offering a job for the son of the revision petitioner at Appollo Tyres, the 1st respondent is said to have obtained an amount of Rs.50,000/- from the revision petitioner on 07.10.1997. When the revision petitioner demanded repayment of the above amount after the failure of the 1st respondent to arrange a job to his son as agreed, the 1st respondent is said to have issued a cheque on 25.04.1998, bearing the same date, for an amount of Rs.50,000/- to the revision petitioner. When the cheque was presented for collection, it was dishonoured stating the reason that the 1st respondent had closed the account in which the above cheque has been drawn, as early as 13.01.1998. A complaint preferred by the revision petitioner before the Judicial First Class Magistrate-I, Aluva, alleging the commission of the offence under Section 420 IPC against 1st respondent, was forwarded to the Police under Section 156 (3) Cr.P.C., leading to the registration of Crime No.927/1998 by the Aluva Police. After the completion of the investigation, the Assistant Sub-Inspector of Police, Aluva filed final report before the Judicial First Class Magistrate-I, Aluva, alleging the commission of offence under Section 420 IPC. 

# 3. In the trial that followed five witnesses were examined from the part of the prosecution as PW1 to PW5, and five documents marked as Exts.P1 to P5. The 1st respondent also tendered evidence as DW1, and brought on record four documents, which are marked as Exts.D1 to D4. The learned Magistrate, after evaluation of evidence and hearing both sides, found the 1st respondent guilty of commission of Section 420 IPC and convicted him. He was accordingly, awarded a sentence of simple imprisonment for one year with a direction to pay compensation of Rs.50,000/- to the revision petitioner under Sec.357(3) Cr.P.C with a default clause of simple imprisonment for three months. 

# 4. However, in the appeal preferred by the 1st respondent before the Additional Sessions Court, North Paravur as Crl.Appeal No.96/2003, the learned Additional Sessions Judge found that the offence under Sec.420 IPC is not attracted in the facts and circumstances of the case. Accordingly, the 1st respondent was acquitted of the above charge by setting aside the conviction and sentence imposed by the learned Magistrate. Aggrieved by the above judgment of the Additional Sessions Court, North Paravur, the de facto complainant is here with this revision petition. 

# 5. In spite of service of notice, the 1st respondent did not care to appear in these proceedings or to advance arguments. 

# 6. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor representing the 2 nd respondent – State of Kerala. 

# 7. Sec.415 of the Indian Penal Code reads as follows : “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.” 

# 8. Going by the above provision, the following particulars are required to be established for attracting the offence of cheating: 

• (i) There should be deception perpetrated upon a person by the accused. 

• (ii) By perpetrating such deception, the accused should have fraudulently or dishonestly induced the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or should have intentionally induced the person so deceived to do or omit to do anything which he would not do or omit to do, if he were not so deceived. 

• (iii) The act or omission on the part of the person so deceived should have either caused or likely to have caused damage or harm to that person in body, mind, reputation or property. 

# 9. In addition to the contingencies amounting to cheating mentioned under Sec.415 IPC, Sec.420 IPC covers a situation wherein the person who has been cheated happens to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security. The punishment for such an act is imprisonment of either description for a term which may extend to seven years, and also fine. 

# 10. As far as the present case is concerned, the pertinent aspect to be looked into is whether the act of the 1st respondent receiving an amount of Rs.50,000/- from the revision petitioner upon the unfulfilled promise of arranging job to the revision petitioner’s son, and thereafter issuing a cheque for the said amount on an account which he had voluntarily closed three months prior to the date of issuance of the cheque, towards the repayment of the said amount, leading to the dishonour of the said cheque, would amount to cheating, as envisaged under Section 415 IPC. If it is shown that the 1st respondent was not having any intention at all to return the amount and that the cheque was issued only as a ploy to deceive the revision petitioner, the element of cheating, as envisaged under Section 415 IPC would be clearly brought out in the case on hand. 

# 11. A perusal of the records of this case would reveal that the petitioner had adduced evidence before the trial court that the 1st respondent had obtained an amount of Rs.50,000/- from him on 07.10.1997 upon the promise that he would arrange job for the petitioner’s son in a private establishment. It is further stated by the petitioner in his testimony as PW1 before the trial court that the 1st respondent did not arrange the job to his son as agreed, and that he demanded the money back due to the above reason. After such repeated demands, PW1 would state, the 1st respondent went to his house on 25.04.1998 and handed over Ext.P4 cheque after getting it signed, making him believe that he could encash the above cheque by presenting it before SBI, Aluva where the 1st respondent was having account. PW1 has also stated that he presented Ext.P4 cheque for collection on 19.08.1998 as instructed by the 1st respondent, but it was dishonoured for the reason that the account in which it was drawn had been closed as early as 13.01.1998. Thus it is clearly made out from the above evidence of PW1 that at the time when the 1st respondent executed and issued Ext.P4 cheque on 25.04.1998 to the petitioner towards payment of the amount mentioned in that cheque, the 1st respondent was fully aware of the fact that the said account had been closed by him three months prior to that date, and hence the said cheque would definitely be dishonoured for that reason. The above conduct of the 1st respondent would definitely amount to deception in so far as it relates to the fraudulent and dishonest inducement made by the 1st respondent to make the petitioner believe that he would be able to get back the amount of Rs.50,000/- which the 1 st respondent had obtained from him, by presenting and encashing the said cheque. 

# 12. It seems from the judgment of the appellate court that the learned Additional Sessions Judge was carried away by the impression that if a person issues a cheque after the closure of his account, in respect of an antecedent liability, and the said cheque happens to be dishonoured due to that reason, the above act of that person will not come within the purview of cheating as defined under Section 415 I.P.C. The above conclusion of the learned Additional Sessions Judge, in my view, is patently wrong. 

# 13. It is true that the dishonour of a cheque due to the closure of the account by the drawer, may attract the offence under Section 138 of the Negotiable Instruments Act in certain cases, including those cases where the person executing and issuing the cheque did not have the expectation that his account is closed, or that it is likely to be closed, before the presentation of that cheque by the payee for encashment. However, in a given case, if it is shown that a drawer of the cheque, after voluntarily closing his account, executed and issued it to the payee with the intention to see that the payee would not encash the amount covered by the cheque which he was indebted to pay, the offence of cheating defined under Section 415 I.P.C will be definitely attracted in the facts and circumstances of that case. The distinction lies on the pertinent question as to the mens rea of the drawer to deceive the payee at the time when he issues the cheque, pretending it to be one drawn on a valid and live account maintained by him. True that the evidence in such cases shall be meticulously analysed to ascertain whether the drawer was having the intention, right from the very beginning, to defeat the attempt of the payee to encash the cheque which he had issued ostensibly to make payment of the amount covered by it. 

# 14. The Hon’ble Supreme Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat and Another : AIR 2012 SCC 2844 has observed that though there may be some overlapping facts in a prosecution for the offence under Section 138 of the Negotiable Instruments Act and Section 420 I.P.C in connection with the dishonour of the same cheque due to closure of the account, the ingredients of the said offences are entirely different, and subsequent prosecution under Section 420 I.P.C in respect of a case which had already been prosecuted under Section 138 of the Negotiable Instruments Act, is not barred by any statutory provisions. Paragraphs 27 and 28 of the judgment of the Hon’ble Supreme Court in the aforesaid case are extracted as follows: 

• “27. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of S. 138 NI Act and the case is sub judice before the High Court. In the instant case, he is involved under S. 406/420 read with S.114 I.P.C. In the prosecution under S.138 N.I.Act, mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under S.420 I.P.C is a serious one as the sentence of 7 years can be imposed. In the case under NI Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under NI Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under NI Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary. 

• 28. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions.” 

# 15. Thus, it could be safely concluded that the offence of cheating envisaged under Indian Penal Code would be attracted in those cases of dishonour of cheques due to closure of account where the mens rea, that is, the fraudulent or dishonest intention of the drawer at the time of issuance of the cheque, to deceive the payee, is established from the facts and circumstances of the case. 

# 16. The same view has been expressed by the Full Bench of Andhra Pradesh High Court in OPTS Marketing Pvt.Ltd. (M/s.) and Others v. State of A.P and Others : 2001 KHC 2132 wherein, after an elaborate discussion on the case laws on this point, it has been observed in paragraph No.27 of that judgment as follows: 

• “27. In the result, we hold that (i) even after introduction of S. 138 of the Negotiable Instruments Act, prosecution under S. 420, IPC is maintainable in case of dishonour of cheques or postdated cheques issued towards payment of price of the goods purchased or hand loan taken, or in discharge of an antecedent debt or towards payment of goods supplied earlier, if the charge sheet contains an allegation that the accused had dishonest intention not to pay even at the time of issuance of the cheque, and the act of issuing the cheque, which was dishonoured, caused damage to his mind, body or reputation, (ii) private complaint or FIR alleging offence under S. 420, IPC for dishonour of cheques or postdated cheques cannot be quashed under S. 482. Cr. P.C. if the averments in the complaint show that the accused had, with a dishonest intention and to cause damage to his mind, body or reputation, issued the cheque which was not honoured. Point No. 2 is answered accordingly.” 

# 17. The observation of the learned Additional Sessions Judge about the non-applicability of Section 415 I.P.C, by relying on the decision of this Court in Surendran v. Ramachandran Nair : 1967 KLT 804 : 1967 KHC 265, appears to be erroneous since the facts and circumstances of the case discussed in the said decision are totally different from the facts and circumstances of the present case wherein the mens rea of the 1 st respondent to cheat the petitioner is clearly brought on record. So also, it is seen from the impugned judgment of the learned Additional Sessions Judge that, upon a wrong interpretation of the dictum laid down by this Court in Salim v. Thomas : 2004 (1) KLT 816, it has been concluded that, until the last unused cheque leaf is returned to the bank by the drawer, it must be held that such account holder continued the account with the bank, and hence the dishonour of the cheque involved in this case, will not constitute the offence of cheating. In fact, the said concept of presumption of account remaining live till the unused cheque leaves are surrendered to Bank, has been invoked by this Court in that decision to ensure that the drawer of a cheque cannot escape from the criminal liability of Section 138 of the Negotiable Instruments Act, by contending that the dishonour of cheque was for the reason of closure of accounts, and not due to insufficiency of funds in his account, as envisaged under the said provision. There is absolutely nothing laid down in the said decision to the effect that under no circumstances, the offence of cheating would be attracted in a case where the drawer of a cheque issues the same, after the closure of his account, with the fraudulent and dishonest intention to prevent the payee from getting the amount due from him. 

# 18. Thus, it has to be stated that the finding of the learned Additional Sessions Judge about the non-applicability of the offence of cheating in the facts and circumstances of this case, is manifestly against the settled principles of law. Needless to say that the judgment rendered by the appellate court upon the above finding, is liable to be set aside. 

# 19. As already stated above, the requirements of Section 415 I.P.C to constitute the offence of cheating are clearly attracted in the facts and circumstances of this case. The offence so attracted is punishable under Section 417 I.P.C with imprisonment of either description for a term which may extend to one year, or with fine, or with both. Having regard to the facts and circumstances of the case and the present stage of this litigation, which has been pending for a quarter of century, I feel that the sentence shall be limited to imprisonment till the rising of court and fine Rs.1,00,000/- (Rupees One Lakh only), out of which an amount of Rs.90,000/- (Rupees Ninety Thousand only) shall be paid as compensation to the revision petitioner under Section 357(1)(b) Cr.P.C. 

# 20. In the result, the revision stands allowed as follows: 

• (i) The judgment dated 19.10.2004 of the Additional Sessions Judge, North Paravur in Crl.Appeal No.96/2003, is hereby set aside. 

• (ii) The 1st respondent (accused in C.C.No.561/1999 of Judicial First Class Magistrate Court-I, Aluva) is found guilty of Section 417 I.P.C., and he is convicted thereunder. 

• (iii) The 1st respondent (accused in C.C.No.561/1999 of Judicial First Class Magistrate Court-I, Aluva) is sentenced to imprisonment till the rising of court and fine Rs.1,00,000/- (Rupees One Lakh only). 

• (iv) Out of the above fine of Rs.1,00,000/-, if realized, an amount of Rs.90,000/- (Rupees Ninety Thousand only) shall be paid as compensation to the petitioner (PW1 in C.C.No.561/1999) under Section 357(1)(b) Cr.P.C. 

• (v) In the event of default of payment of fine, as directed above, the 1st respondent shall undergo simple imprisonment for a term of six months. Transmit a copy of this order, along with case records, to the trial court, for expeditious enforcement of the sentence. 

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Puro Naturals JV Vs. Warana Sahakari Bank & Ors.- This Tribunal took the view that Resolution Plan providing for extinguishment of personal guarantee as approved by the CoC, did not contravene any provisions of Section 30(2)(e) of the Code.

 NCLAT (24.11.2023) in Puro Naturals JV Vs. Warana Sahakari Bank & Ors. (Company Appeal (AT) (Insolvency) Nos. 651, 661-663 and 1005 of 2023 ] held that.

• This Tribunal took the view that Resolution Plan providing for extinguishment of personal guarantee as approved by the CoC, did not contravene any provisions of Section 30(2)(e) of the Code.

• We, thus, answer Question No.(I) holding that Resolution Plan in question has consciously dealt with securities and personal guarantees given to the Financial Creditors including the dissenting Financial Creditors and the said clauses of the Resolution Plan do not contravene any provisions of Section 30, sub-section (2) as well as CIRP Regulations, 2016.

• According to the scheme of the IBC, the payment to which a Financial Creditor, who does not vote in favour of the Resolution Plan is entitled for payment in accordance with sub-section (1) of Section 53, in the event of liquidation of the Corporate Debtor

• And further dissenting Financial Creditor has to be paid in priority to the Financial Creditors who vote in favour of such Resolution Plan.

• What is required by law is the payment “in priority over the Financial Creditors who voted in favour of the plan”. When we look into the relevant clauses of the Resolution Plan, i.e., Clause C-3(V), which dealt with dissenting Financial Creditors, the clauses clearly provided for payment to dissenting Financial Creditor in priority, since the payment in favour of the dissenting Financial Creditor has to be made prior to payment to the assenting creditors, be it upfront payment or payment by installments.

Excerpts of the Order;    

These Appeal(s) have been filed against the same order dated 01.05.2023 passed by the National Company Law Tribunal, Mumbai, Bench-V in IA No.2165 of 2021 filed by Resolution Professional (“RP”) for approval of Resolution Plan submitted by Puro Naturals JV; IA No.963 of 2022 and I.A. No.112 of 2022 filed by Respondent Nos.1 and 2 objecting to the Resolution Plan. The Adjudicating Authority by the impugned order rejected IA No.2165 of 2021 field by the RP – Ritesh R Mahajan for approval of the Resolution Plan and IA No. 963 of 2022 and 112 of 2022 filed by Respondent Nos.1 and 2 for rejection of the Resolution Plan submitted by Puro Naturals JV, were allowed. The Company Appeal (AT) (Ins.) Nos.661-663 of 2023 has been filed by the Successful Resolution Applicant Puro Naturals JV challenging the impugned order. Company Appeal (AT) (Ins.) No.651 of 2023 has been filed by Ritesh R Mahajan, RP challenging the impugned order and Company Appeal (AT) (Ins.) No.1005 of 2023 has been filed by 38 Sugarcane Farmers and creditors of the Corporate Debtor, who have come up in this Appeal challenging the impugned order rejecting the Resolution Plan.

# 2. Brief facts necessary to be noticed for deciding these Appeal(s) are:

(i) Corporate Insolvency Resolution Process (“CIRP”) against the Corporate Debtor – Shivaji Cane Processors Limited was initiated by an order dated 18.02.2021 passed by the Adjudicating Authority on an Application under Section 7 filed by ASREC (India) Limited (Financial Creditor). Mr. Ritesh R. Mahajan was confirmed as RP.

(ii) In response to Invitation for Expression of Interest (“EoI”), Puro Naturals JV a Joint Venture between three entities filed a Resolution Plan. After discussion in the 5th Meeting of the Committee of Creditors (“CoC”) dated 19.07.2021, the Resolution Applicant revised the Resolution Plan to Rs.43.82/- crores and submitted its final Resolution Plan on the basis of inputs by the CoC on 29.07.2021. In the 6th CoC Meeting held on 30.07.2021, Resolution Plan was discussed and was passed with 78.03% voting. Respondent Nos.1 and 2 namely – Shree Warana Sahakari Bank Limited and Kolhapur Urban Co-operative Bank having the vote share of 11.13% and 10.84% respectively, dissented with the Resolution Plan.

(iii) After approval of the Resolution Plan, RP filed IA No.2165 of 2021 under Section 30, sub-section (6) for approval of the Resolution Plan before the Adjudicating Authority. Respondent No.1 – Shree Warana Sahakari Bank Limited filed IA No.112 of 2022 seeking to oppose the Resolution Plan. Similarly, IA No.963 of 2022 was filed by Kolhapur Urban Co-operative Bank – Respondent No.2 seeking to oppose the approval of the Resolution Plan. The RP filed reply to the IAs filed by both the dissenting Financial Creditors.

(iv) The matter was heard and reserved on 20.01.2023 by the Adjudicating Authority. Thereafter on 14.03.2023, the matter was listed by Adjudicating Authority for clarification by Successful Resolution Applicant (“SRA”). The SRA by way of clarification, offered to make full payment to the dissenting Resolution Applicant within 90 days of the approval of the Resolution Plan.

(v) On 01.05.2023, the impugned order was passed rejecting the Application filed by the RP for approval of the Resolution Plan on the ground that Resolution Plan seeks to extinguish the personal guarantees and securities without the consent of dissenting Financial Creditors. The Adjudicating Authority also relied on judgment of the NCLT, Indore Bench dated 06.01.2023 in Naveen Kumar Sood RP of Ujaas Energy Ltd. & Anr. vs. Ujaas Energy Ltd. & Ors., where Indore Bench of the NCLT had rejected the Resolution Plan on the ground that Plan extinguish the rights of the dissenting Financial Creditors to proceed against the Personal Guarantor.

(vi) It is useful to extract the main reason given by the Adjudicating Authority for rejecting the Resolution Plan. The reasons as contained in paragraph 13 of the judgment are as follows:

• “13. The counsel for the Resolution Professional has sought to distinguish the above case by arguing extensively that the Resolution Plan only assigns the personal guarantees and does not extinguish the same. However, the argument is without any merit for two reasons. Firstly, the argument is in complete defiance of record and is factually incorrect, as the Resolution Plan in fact and indeed seeks to not just assign but extinguish the personal guarantee and securities in the garb of assignment in favour of a third party. Secondly, without prejudice to the above, such assignment is without consent of Dissenting Financial Creditors which cannot bind the Dissenting Financial Creditors. In a recent judgment, the National Company Law Tribunal, Indore Bench has in its order dated January 06, 2023 in the matter of Naveen Kumar Sood RP of Ujaas Energy Ltd & Anr v/s. Ujaas Energy Ltd & Ors has upheld the said settled position of law in the following terms:

• “…10. Be that as it may we are not going in details of the plan since the said resolution plan contains a relief to extinguish the personal guarantee given to the lenders on the borrowings of the corporate debtor but the same is objected by Bank of Baroda. This Adjudicating Authority vide its order dated 04.08.2022 released the matter for clarification with respect to the said relief in the plan, however the resolution applicant wish to proceed without amending such reliefs and therefore, such conditional plan without the consent of all the secured financial creditors is not in accordance with the provisions of the Code

• 11. In our considered opinion the CoC can take any commercial decision relating to insolvency of the corporate debtor only, the CoC cannot extinguish right of the particular secured creditor to proceed against the personal guarantor of the corporate debtor under the garb of its commercial wisdom. Such provision in the resolution plan is not only prejudicial to the right of such secured creditor but also against the provisions of law. Hence we cannot approve such resolution plan as it contravenes the provision of section 30(2)(e ) of the Code.

• 12. In view of the above, we are of the considered opinion that such resolution plan cannot be approved and deserves to be rejected as the CoC by majority votes cannot enforce its decision for extinguishment of the right of the dissenting creditor to proceed against the personal guarantor…..”

• In the light of what has been held by the Hon’ble NCLT Indore Bench, it is clear that the COC can take any commercial decision relating to insolvency of the Corporate Debtor but it cannot extinguish right of the particular Secured Creditor to proceed against the personal guarantor of the Corporate debtor under the grab of its commercial wisdom. Such provision in the resolution plan is not only prejudicial to the right of such secured creditor but also is not in consonance with the provisions of law. Therefore, the plan cannot be approved as it contravenes the provision of section 30(2)(e) of the Code.”

• Operative portion of the order as contained in paragraph 18, is to the following effect:

• “18. The above captioned Interlocutory Application 2165 of 2021 filed for approval of the Resolution Plan vide our detailed order above, we are of the considered view that such Resolution Plan cannot be approved and deserved to be “rejected”. Accordingly, I.A. No. 963 of 2022 filed by The Kolhapur Urban Co-Op Bank Limited, I.A. No. 112 of 2022 filed by Shree Warna Sahakari Bank Limited are “allowed” and IA No. 2917 of 2021 filed by Dombivli Nagari Sahakari Bank Ltd. are rendered “infructuous and disposed of”.”

(vii) Aggrieved by the impugned order, these three Appeal(s) have been filed as noted above.

# 3. We have heard Shri Amar Dave, learned Counsel appearing for the Successful Resolution Applicant (in Company Appeal (AT) (Ins.) No. 661-663 of 2023); Shri Krishnendu Datta, learned Senior Counsel appearing for RP (in Company Appeal (AT) (Ins.) No. 651 of 2023); Shri Siddharth S. Chapalgaonkar, learned Counsel appearing for Sugarcane Farmers, who have filed Company Appeal (AT) (Ins.) No.1005 of 2023; and Shri Sumant Batra, learned Counsel appearing for Respondent Nos.1 and 2 – dissenting Financial Creditors.

# 11. The two principal questions, which have arisen for consideration in these Appeal(s) are to the following effect:

• (I) Whether Resolution Plan providing for extinguishment of security interest and the guarantees of the Financial Creditors including dissenting Financial Creditors is contrary to the provision of Section 30, sub-section (2) and the CIRP Regulations?

• (II) Whether the payment, which have been proposed to the dissenting Financial Creditors in the Resolution Plan, is contrary to the provisions of Section 30, sub-section (2) and CIRP Regulations?

Question No.(I)

3 12. The first question is as to whether Resolution Plan could have contained any provision for extinguishment of security interest and the guarantees of the Financial Creditors, which was given by Promoters to secure the debt of the Corporate Debtor. Various clauses of the Resolution Plan as extracted above, clearly notes that Resolution Plan specifically dealt with securities and guarantees of the Financial Creditors and the Plan envisage extinguishment of securities and guarantees also in addition to pay out to secured Financial Creditor. The Plan envisages that after payment of the amount proposed in the Plan secured Financial Creditors shall assign their debt on consideration of Rs.2 crores. The Plan envisages the extinguishment of security interest and the guarantees.

# 13. The Adjudicating Authority in the impugned order has taken the view that the Resolution Plan cannot extinguish the rights of the dissenting creditors to proceed against the personal guarantees. In paragraph 13 of the impugned judgment, the Adjudicating Authority has relied on judgment of NCLT, Indore Bench in Naveen Kumar Sood RP of Ujaas Energy Ltd. & Anr. vs. Ujaas Energy Ltd. & Ors. for coming to the conclusion that CoC can take any commercial decision relating to insolvency of the Corporate Debtor, but it cannot extinguish right of the particular Secured Creditor to proceed against the personal guarantor of the Corporate Debtor under the garb of its commercial wisdom. Against the order of NCLT, Indore Bench in the above case an Appeal being Company Appeal (AT) (Ins.) No.266 of 2023 – SVA Family Welfare Trust & Anr. vs. Ujaas Energy Ltd. & Ors. was filed, which was allowed by this Tribunal vide its judgment dated 21.08.2023, setting aside the order of Adjudicating Authority. This Tribunal held in the aforesaid judgment that security interest of the dissenting Financial Creditors by virtue of personal guarantee of the ex-director of the Corporate Debtor could have been very well dealt in the Resolution Plan. After considering all relevant judgments, this Tribunal laid down following in paragraph 28 and 29:

• “28. The above judgment fully supports the submissions of the Appellant that security interest of dissenting Financial Creditor by virtue of personal guarantee of the ex-director of the Corporate Debtor could have been very well dealt in the Resolution Plan. It is further relevant to notice that each Financial Creditor has personal guarantee in their favour to secure the loan extended by them. All Financial Creditors has assented for relinquishment of such security except Bank of Baroda which had only 5.83% vote share. The decision of the CoC to accept the value for relinquishment of personal guarantee was a commercial decision of the CoC which cannot be allowed to be impugned at the instance of dissenting Financial Creditor.

• 29. In view of the foregoing discussions, we are of the view that the Adjudicating Authority committed error in rejecting the Application for approval of the Resolution Plan on the ground that plan could not have contained a provision for extinguishment of personal guarantee of the personal guarantors. Plan allocates a plan value for extinguishment of personal guarantee which has been accepted by the Financial Creditors by a vote share of 78.04%. We, thus, are of the view that the order of the Adjudicating Authority dated 06.01.2023 is unsustainable. In result, we allow the Appeal and set aside the order dated 06.01.2023 passed by the Adjudicating Authority. We hold that the Resolution Plan submitted by the Appellant did not contravene any of the provisions of Section 30(2)(e) of the Code. The Adjudicating Authority shall proceed to pass a fresh order in IA 190 of 2021 praying for approval of the Resolution Plan along with necessary directions. Adjudicating Authority shall endeavour to pass fresh order on IA 190 of 2021 within a period of three months from the date when copy of this order is produced before it.”

# 14. This Tribunal took the view that Resolution Plan providing for extinguishment of personal guarantee as approved by the CoC, did not contravene any provisions of Section 30(2)(e) of the Code. It is also relevant to notice that against the order of this Tribunal in Company Appeal (AT) (Ins.) No.266 of 2023, Bank of Baroda filed Civil Appeal No.6602 of 2023, which Appeal has been dismissed by the Hon’ble Supreme Court vide its order dated November 06, 2023, which order is as follows:

• “1. In view of the facts and circumstances of the present case, no substantial question of law arises.

• 2. The Appeal is accordingly dismissed.

• 3. Pending applications, if any, stand disposed of.”

# 15. In view of the above very basis of the order of the Adjudicating Authority, rejecting the Resolution Plan submitted by the Successful Resolution Applicant having been knocked out by judgment of this Tribunal dated 21.08.2023, the order of Adjudicating Authority is clearly unsustainable.

# 16. The present is a case where CoC deliberated over the issue and on such deliberation and inputs, the Successful Resolution Applicant submitted revised Resolution Plan and the Resolution Plan dealt with security interest and the personal guarantee also. We, thus, answer Question No.(I) holding that Resolution Plan in question has consciously dealt with securities and personal guarantees given to the Financial Creditors including the dissenting Financial Creditors and the said clauses of the Resolution Plan do not contravene any provisions of Section 30, sub-section (2) as well as CIRP Regulations, 2016. The view of the Adjudicating Authority that Resolution Plan is contrary to provisions of Section 30, sub-section (2) is unsustainable and deserved to be set-aside.

Question No.(II)

# 17. Section 30, sub-section (2) of the Code provides as follows:

“30(2). The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan –

(a) provides for the payment of insolvency 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 liquidation 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 distributed 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 manner as may be specified by the Board, which shall not be less than the amount to be paid to such creditors in accordance with sub-section (1) of section 53 in the event of a liquidation of the corporate debtor.

Explanation 1. — For 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 purpose of this clause, it is hereby declared that on and from the date of commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2019, the provisions of this clause shall also apply to the corporate insolvency resolution process of a corporate debtor-

(i) where a resolution plan has not been approved or rejected by the Adjudicating Authority;

(ii) where an appeal has been preferred 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 resolution 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 provisions of the law for the time being in force

(f) confirms to such other requirements as may be specified by the Board.

[Explanation. — For the purposes of clause (e), if any approval of shareholders is required 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.”

# 18. Regulation 38 of CIRP Regulations, which provides ‘Mandatory contents of the Resolution Plan’. Regulation 38(1)(b) is as follows:

• “38(1)(b). to the financial creditors, who have a right to vote under sub-section (2) of section 21 and did not vote in favour of the resolution plan, shall be paid in priority over financial creditors who voted in favour of the plan.”

# 19. According to the scheme of the IBC, the payment to which a Financial Creditor, who does not vote in favour of the Resolution Plan is entitled for payment in accordance with sub-section (1) of Section 53, in the event of liquidation of the Corporate Debtor and further dissenting Financial Creditor has to be paid in priority to the Financial Creditors who vote in favour of such Resolution Plan. The submission advanced on behalf of learned Counsel for Respondent Nos.1 and 2 that dissenting Financial Creditors are entitled to upfront payment is not in line with the statutory scheme as contained in the IBC and the CIRP Regulations. There is no provision which can be pointed out, which requires Successful Resolution Applicant to make upfront payment to the dissenting Financial Creditors. What is required by law is the payment “in priority over the Financial Creditors who voted in favour of the plan”. When we look into the relevant clauses of the Resolution Plan, i.e., Clause C-3(V), which dealt with dissenting Financial Creditors, the clauses clearly provided for payment to dissenting Financial Creditor in priority, since the payment in favour of the dissenting Financial Creditor has to be made prior to payment to the assenting creditors, be it upfront payment or payment by installments. The submission of the learned Counsel for Respondent Nos.1 and 2 that they were entitled for upfront payment and provision of not providing upfront payment violates the provision of IBC and CIRP Regulations cannot be accepted. The provisions of Resolution Plan in C-3(V) providing for payment to dissenting Financial Creditors are not in contravention of any provisions of Section 30, sub-section (2) or CIRP Regulations. We, however, have already noticed the clarification made by the Successful Resolution Applicant before the Adjudicating Authority that entire payment to the dissenting Financial Creditors shall be paid upfront within 90 days from the date of approval of the Plan. The learned Counsel appearing for Successful Resolution Applicant has also made same submission before us that entire payment to the dissenting Financial Creditor shall be made upfront within 90 days, which clarification was given before the Adjudicating Authority also. The Successful Resolution Applicant having himself come out to make entire payment to the dissenting Financial Creditor within 90 days, we are of the view that there can be no question of any contravention of provisions of IBC as well as CIRP Regulations with regard to payment to dissenting Financial Creditors.

# 20. Shri Sumant Batra, learned Counsel for Respondent Nos.1 and 2 has also relied on the judgment of the Hon’ble Supreme Court in Jaypee Kensington Boulevard Apartments Welfare Assocaition & Ors. vs. NBCC (India) Limited and Ors. and has referred to paragraph 118.2. In paragraph 118.2, the Hon’ble Supreme Court has laid down following:

“118.2. As noticed, the decision of this Court in Essar Steel [Essar Steel India Ltd. (CoC) v. Satish Kumar Gupta, (2020) 8 SCC 531 : (2021) 2 SCC (Civ) 443] was delivered on 15-11-2019. A few days after this decision i.e. on 28-11-2019, amendment was carried out in clause (1) of Regulation 38 of the CIRP Regulations, which has direct co-relation with the aforesaid amended clause (b) of Section 30(2) of the Code. By way of this amendment of Regulation 38(1), the priority for the amount payable came to be specified, not only to the operational creditors but also to the dissenting financial creditors over their assenting counterparts. The aforesaid amendments and the expositions of this Court in Essar Steel [Essar Steel India Ltd. (CoC) v. Satish Kumar Gupta, (2020) 8 SCC 531 : (2021) 2 SCC (Civ) 443] make it clear that the interests of dissenting financial creditors are duly taken care of, while providing for the minimum amount they are entitled to and, for that matter, in priority over the assenting financial creditors.”

# 21. What was laid down by the Hon’ble Supreme Court in the aforesaid case is that by virtue of Section 30, sub-section (2) as well as Regulation 38, the priority for the amount payable came to be specified, not only to the operational creditors but also to the dissenting financial creditors over their assenting counterparts. The Hon’ble Supreme Court has reiterated the legal position as contained in Section 30, sub-section (2) as well as CIRP Regulations that payment has to be made in priority. As we have already noticed that payment to the dissenting Financial Creditors is in priority, hence, no contravention can be found out as contended. The same principles have been reiterated in paragraph 121.1 and 121.2, which have been relied by learned Counsel for Respondent Nos.1 and 2, which are as follows:

“121.1. Therefore, when, for the purpose of discharge of obligation mentioned in the second part of clause (b) of Section 30(2) of the Code, the dissenting financial creditors are to be “paid” an “amount” quantified in terms of the “proceeds” of assets receivable under Section 53 of the Code; and the “amount payable” is to be “paid” in priority over their assenting counterparts, the statute is referring only to the sum of money and not anything else. In the frame and purport of the provision and also the scheme of the Code, the expression “payment” is clearly descriptive of the action of discharge of obligation and at the same time, is also prescriptive of the mode of undertaking such an action. And, that action could only be of handing over the quantum of money, or allowing the recovery of such money by enforcement of security interest, as per the entitlement of the dissenting financial creditor.

121.2. We would hasten to observe that in case a dissenting financial creditor is a secured creditor and a valid security interest is created in his favour and is existing, the entitlement of such a dissenting financial creditor to receive the “amount payable” could also be satisfied by allowing him to enforce the security interest, to the extent of the value receivable by him and in the order of priority available to him. Obviously, by enforcing such a security interest, a dissenting financial creditor would receive “payment” to the extent of his entitlement and that would satisfy the requirement of Section 30(2)(b) of the Code [ Though it is obvious, but is clarified to avoid any ambiguity, that the “security interest” referred herein for the purpose of money recovery by dissenting financial creditor would only be such security interest which is relatable to the “financial debt” and not to any other debt or claim.] . In any case, that is, whether by direct payment in cash or by allowing recovery of amount via the mode of enforcement of security interest, the dissenting financial creditor is entitled to receive the “amount payable” in monetary terms and not in any other term.”

# 22. In the present case, it not the case of Respondent Nos.1 and 2 that they are not receiving the payment, which they could have been entitled under Section 53, sub-section (1). What have been contended is that payment to them is not in priority as compared to the payment to assenting Financial Creditors. We have already noticed and considered this submission and found that payment as provided in Resolution Plan is in accordance with the priority to the dissenting Financial Creditors, hence, we do not find any substance in the above submission.

# 23. We, thus, are of the view that the order impugned passed by the Adjudicating Authority is unsustainable and deserves to be set aside and the Application filed by RP deserves to be allowed.

# 24. It is relevant to notice that Resolution Plan submitted by Successful Resolution Applicant was approved by the CoC in the meeting dated 30.07.2021 and RP filed application for approval of Resolution Plan being IA No.2165 of 2021 immediately thereafter. The Corporate Debtor was engaged in sugar industry and was engaged in cane process. Sugarcane season has already begun as has been submitted by learned Counsel for the Appellant and inspite of the Plan having been approved on 30.07.2021 and 02.08.2021, the creditors including the Farmers are waiting for the amount to be paid and due to erroneous order passed by the Adjudicating Authority, rejecting the Resolution Plan, the Corporate Debtor could neither be revived nor creditors can be paid. We have looked into the Resolution Plan, Clause C-11, which deals with ‘concession and relief sought’, is as follows:

• “C-11: Concession and relief Sought

• The Resolution Applicant, will approach all the concerned authorities for reliefs and concessions, if any hindrance is faced by the Resolution Applicant from any authority at later stage will approach the Tribunal after the sanction of the plan.

• The carry forward losses are permitted under Section 79 of The Income Tax Act, 1961”

# 25. The Adjudicating Authority with regard to concession and relief has already observed that the Resolution Applicant will approach the concerned Authority after the sanction of the Plan, if any hinderance is faced by the Resolution Applicant. Thus, no further orders are required with regard to relevant concession and relief. We having held that Resolution Plan being fully in compliance with the provisions of Section 30, sub-section (2) and Regulation 38 of the CIRP Regulations, we are satisfied that Resolution Plan deserves to be approved by the Adjudicating Authority itself and Adjudicating Authority committed error in rejecting the IA No.2165 of 2021 filed by the RP for approval of the Resolution Plan. In view of the fact that more than two years have passed from the approval of the Resolution Plan by the CoC and all creditors are waiting for the amount to be paid and Corporate Debtor is waiting for being revived, who could not be revived due to order impugned, we are of the view that Resolution Plan submitted by Puro Naturals JV be approved.

# 26. In the result, all the Appeal(s) are allowed. The impugned order dated 01.05.2023 is set aside. I.A. No.2165 of 2021 filed by the RP for approval of Resolution Plan is allowed. The Resolution Plan submitted by Puro Naturals JV is approved. Let steps for implementation of Resolution Plan be taken by all concerned.

# 27. I.A. No. 963 of 2022 and I.A. No.112 of 2022 filed before the Adjudicating Authority by Respondent Nos.1 and 2 are rejected. Parties shall bear their own costs.

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