Resolution plan implementable as it doesn’t discriminate based on type of creditors

Shankar Mukherjee Vs Ravi Sethia (NCLAT Delhi)

NCLAT Delhi held that the Resolution Plan does not discriminate based on the type of creditors to give preference to secured creditors both having first charge or having residual charges thus resolution plan is implementable and in exercise of commercial wisdom of CoC. Accordingly, appeal rejected as devoid of merits.

Facts- The present appeal has been filed by the Appellants i.e. Shankar Mukherjee & Badri Kumar Tulsyan who are the Suspended Board of Directors of Suasth Healthcare Foundation (Corporate Debtor) under Section 61 of the Insolvency and Bankruptcy Code, 2016 (Code), challenging the Impugned Order dated 18.12.2023 passed by the National Company Law Tribunal, Kolkata Bench (Adjudicating Authority).

The Appellants submitted that on 04.11.2022, they learned that, an aggrieved Suasth employee challenged the resolution plan, which was disposed of by the Adjudicating Authority vide the order dated 04.11.2022, which relied on a statement by the Respondent No. 1’s counsel that “all payments due during the pre-CIRP and CIRP period will be paid as soon as the plan is approved,” as recorded in the order dated 04.11.2022.

The Appellants submitted that the resolution plan, which proposes paying Rs. 73,00,000 against an admitted employee dues of Rs. 1,53,83,821, with distribution at the Resolution Applicant’s sole discretion. The Appellants further argued that the counsel’s statement is inconsistent with clause 2.2(c)(i) of Resolution Plan which offers less than the admitted claim of the employees and allows the Respondent No. 4 to discriminate among employees/workmen when distributing Rs. 73,00,000/-.