Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. Another aspect which has been pressed into service is with regard to Clause 10.9 of the Resolution Plan, as regards the exemptions from the NSEZ, asserted to be in direct contravention and contradiction to their established rules and principles of the functioning of the NSEZ. The Appellant, which works under the guidance of the Ministry of Commerce and Industry, Government of India, could not have been commanded relating to its functions by the RP, especially with regard to the charges or penalties relatable to the change in any business model for transfer of units by the original allottee. The attempt to by-pass the payment of statutory fee would be an unjust enrichment to the Resolution Applicant, thus, contradicting Section 34(2)(d) of the Special Economic Zone Act, 2005 (hereinafter referred to as “SEZ Act, 2005”).
11. The Appellant even challenged the fair and liquidation valuation of the Corporate Debtor being conducted by the two valuers. It was so challenged on the ground that no physical inspection of the property [2024] 11 S.C.R. Noida Special Economic Zone Authority v. Manish Agarwal & Ors. in question was carried out by the said valuers. A reference in this regard was made to Regulation 35(1)(a) of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations 2016 (hereinafter referred to as “IBBI Regulations 2016”), which required physical verification of the Corporate Debtor.
12. At the cost of reiteration, the Appellant invariably pressed over and over again assignment of only INR 50 Lakhs as against the admitted claim of INR 6,29,18,121/- (Rupees Six Crores Twenty Nine Lakhs Eighteen Thousand and One Hundred Twenty One only).
13. The learned Senior Advocate appearing for the Appellant has vehemently put forth the submissions as recorded above and has also referred to the statutory provisions before this Court. On considering the same, going through the impugned judgment dated 14.02.2022 passed by the NCLAT and the records, we are not persuaded to take a different view.
14. As regard the fair value and liquidation value of Corporate Debtor, as derived by the valuers is concerned, this Court in Duncans Industries Ltd. v. State of U.P. and Others1 held that the question of valuation is basically a question of facts, which does not call for any interference if it is based on relevant material on record. As stated above, the average of the two closest estimates given by the valuers were taken into consideration as fair value and liquidation value respectively, which were found to be just and reasonable. This would be, keeping in view Section 35C of IBC 2016, where the powers and duties of the liquidator have been laid down. Since due process appears to have been followed no fault is found requiring interference.
15. Sections 30 and 31 of IBC 2016, which deal with the submission of the Resolution Plan has rightly been evaluated and analysed NCLAT as per the ratio laid down by this Court in Maharashtra Seamless Limited v. Padmanabhan Venkatesh and Others,2 Ghanashyam Mishra and Sons Private Limited v. Edelweiss Asset Reconstruction Company Limited and Others,3 and K. Sashidhar v. Indian Overseas Bank and Others,4 reference (2000) 1 SCC 633 [2020] 2 SCR 1157 : (2020) 11 SCC 467 [2021] 13 SCR 737 : (2021) 9 SCC 657 [2019] 3 SCR 845 : (2019) 12 SCC 150 496 thereof has been made by the NCLAT in extenso. Conclusion as culled out and elucidated is correct that all the dues, including statutory dues owned by the Central Government, State Government and local authority, which is not the part of the Resolution Plan shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority had approved the Resolution Plan could be pressed into service or continues. These observations took care of the assertions of the Appellant with regard to the statutory dues and the claims as have been made and put forth relatable to the areas of lease.
16. Beside this, as regards the other claims pertaining to the transfer fees, etc. were not to be interfered with by courts or tribunals as the same stood related to the commercial wisdom of the Committee of Creditors for they being the best persons to determine their interests, and any such interference is non-justiciable except as provided by Section 30(2) of IBC 2016. We do not find violation of the statute or the procedure as also the norms fixed as per the decisions referred to above of this Court, the Resolution Plan as approved by the Committee of Creditors, and the same having been accepted deserves and has rightly been left untouched. Fundamentally, the financial decisions as have been taken by Committee of Creditors, especially with regard to viability or otherwise, while evaluating the plan would thus prevail.
17. As far as the submission of the Learned Senior Counsel that exemptions from NSEZ payments, including any type of fees or penalty for renewal of sub-lease and/or for transfer charges due with regard to the change of directorship or shareholding in favour of the Resolution Applicant has to be dealt with as per Clause 10.9 of the Resolution Plan cannot be accepted in the light of Section 238 of IBC 2016, which provides for the provisions of IBC 2016 to have an overriding effect over the other laws. If that be so, the obvious effect is that the same would prevail, leading to the provisions as contained in the SEZ Act 2005 giving way to IBC 2016.
18. It has come on record and stands admitted that the Resolution Plan had already been implemented and the dues as found payable under the Resolution Plan have been disbursed to the concerned parties. As regards the Appellant is concerned, the amount was disbursed vide Demand Draft dated 22.10.2020 which has been received and [2024] 11 S.C.R. Noida Special Economic Zone Authority v. Manish Agarwal & Ors. accepted by the Appellant. Leading to the dismissal of the appeal vide impugned Judgment dated 14.02.2022.
19. In the light of above and having perused the record while bearing in mind the extensive observations made by 3-Judge Bench of this Court in Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta and Others,5 and its reiteration by numerous subsequent decisions of this Court such as the Ebix Singapore Private Limited v. Committee of Creditors of Educomp Solutions Limited and Another6 and in the latest decision in DBS Bank Limited Singapore v. Ruchi Soya Industries Limited and Another,7 we find ourselves not in a position to accept the claim of the Appellant as sought to be made and put forth in these appeals.
20. The Orders dated 05.10.2020 and 27.11.2020, as have been passed by the NCLT and approved by the NCLAT vide its impugned Judgment dated 14.02.2022, do not call for any interference in the present Appeals. The appeals being devoid of merit, stand dismissed.
21. There shall be no order as to costs.
22. Pending application(s), if any, also stand disposed of. Result of the case: Appeals dismissed. †Headnotes prepared by: Ankit Gyan [2019] 16 SCR 275 : (2020) 8 SCC 531 [2021] 14 SCR 321 : (2022) 2 SCC 401 [2024] 1 SCR 114 : (2024) 3 SCC 752