Company Appeal (AT) (Insolvency) No. 55 of 2024 and I.A. No. 172 of 2024

Decided On: 30.01.2024

Appellants: AK Trading Co. Pvt. Ltd. and Ors. Vs. Respondent: Sumit Shukla and Ors.

Hon'ble Judges/Coram:
Ashok Bhushan, J. (Chairperson), Barun Mitra, Member (T) and Arun Baroka


1. IA No. 172 of 2024: This is an application praying for condonation of 12 days' delay in filing the Appeal. The ground taken in the Affidavit is that the Appellant's Advocate is in Delhi whereas Appellant resides in Punjab which cause delay in preparing the appeal. Cause shown sufficient. Delay is condoned.

Company Appeal (AT) (Insolvency) No. 55 of 2024

Heard Learned Counsel for the parties.

2. This Appeal has been filed against the order dated 12.09.2023 passed by the Adjudicating Authority (National Company Law Tribunal) New Delhi Bench-III by which order the Adjudicating Authority has allowed IA No.4505 of 2023 approving the Resolution Plan. The Appellant, an Operational Creditor aggrieved by the plan approval order has come up in this Appeal.

3. Learned Counsel for the Appellant submits that there is a disparity in the payment to the Financial Creditors as well as to the Operational Creditors. Financial Creditors have been paid 13.9% whereas Operational Creditors have been paid only 4.7%. It is submitted that the Operational Creditors who have supplied goods to the Corporate Debtor were entitled payment which is just and equitable.

4. Learned Counsel for the Successful Resolution Applicant submits that the payment has been approved by the CoC in the commercial wisdom and the commercial wisdom of the CoC need not interfered by the Adjudicating Authority or this Appellate Tribunal.

5. We have considered the submissions of the Counsel for the parties and perused the record.

6. It has been laid down by the Hon'ble Supreme Court in "Committee of Creditors of Essar Steels India Ltd. vs. Satish Kumar Gupta- MANU/SC/1577/2019 : 2019:INSC:1256 : (2020) 8 SCC 531" that there cannot be parity of payment with regard to different categories of stakeholders. The Appellant who is an Operational Creditor cannot claim parity with Financial Creditors. Even under Section 53 of the IBC, the payments are provided in different ladders and priorities. The amount or percentage to the Operational Creditors cannot be claim to be of the same amount or percentage which has been paid to the Financial Creditors.

7. We, thus, are of the view that the ground on which the Appellant sought to question the order impugned is unsustainable. Insofar as the submission of the Appellant that some Operational Creditors have not received the payment as per the plan, it is always open for the Appellant to approach the Resolution Professional for payments if the same has not yet been made.

8. Learned Counsel for the Successful Resolution Applicant submits that he has made the entire payment.

9. Learned Counsel for the Resolution Professional also submits that the payment as per plan has already been made and the plan has been implemented.

10. We record the aforesaid statement. We dismiss the Appeal.

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