Holding

The Committee of Creditors' commercial wisdom in approving a resolution plan, including its distribution methodology, is binding and cannot be overridden by the NCLAT unless the plan fails to meet the statutory requirements of Section 30(2) of the IBC.

Summary

The Supreme Court examined the corporate insolvency resolution of Essar Steel India Ltd, where ArcelorMittal's resolution plan was approved by the Committee of Creditors (CoC) but later altered by the NCLAT, which imposed an equal treatment rule for all creditors and re‑distributed payments. The Court held that the CoC's commercial wisdom in approving a plan, including the manner of distribution among secured, unsecured, and operational creditors, is paramount and cannot be supplanted by the NCLAT unless the plan violates Section 30(2) of the Insolvency and Bankruptcy Code (IBC). It clarified that the CoC may constitute sub‑committees for administrative purposes, that the equality principle does not require identical treatment of different creditor classes, and that the amendments to the IBC (Sections 4 and 6 of the 2019 Amendment Act) are constitutionally valid, with the word “mandatorily” struck down as arbitrary. The Court also affirmed that personal guarantees remain enforceable under Section 31(1) and that the time‑limit provisions must be interpreted flexibly to avoid undue prejudice. Consequently, the NCLAT judgment was set aside and the resolution plan as approved by the CoC was upheld.

Issues considered

The extent of the Committee of Creditors' power to decide the manner of distribution of payments under a resolution plan
Whether the NCLAT can substitute its own distribution scheme for that approved by the CoC
The permissibility of delegating CoC functions to a sub‑committee
The applicability of the equality principle to financial versus operational creditors
The constitutional validity of Sections 4 and 6 of the Insolvency and Bankruptcy Code (Amendment) Act, 2019
The jurisdiction of the NCLT and NCLAT to review the commercial wisdom of the CoC
The enforceability of personal guarantees after approval of a resolution plan
The interpretation of the mandatory time‑limit provision in Section 12 of the IBC

Legislation cited

Companies Act, 2013s. 48, s. 77
Insolvency and Bankruptcy Code, 2016s. 12, s. 21, s. 24, s. 28(1)(h), s. 30(2), s. 30(4), s. 31(1), s. 53, s. 60(5)
Insolvency and Bankruptcy Code (Amendment) Act, 2019s. 4, s. 6

Subjects

InsolvencyCommittee of CreditorsResolution PlanEquality PrincipleSecured CreditorsOperational CreditorsNCLATNCLTAmendment Act 2019Sub‑committeeCommercial WisdomPersonal GuaranteesTime Limit

Judgment

[2019] 16 S.C.R. 275 275

COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA A
LIMITED THROUGH AUTHORISED SIGNATORY
v.
SATISH KUMAR GUPTA & ORS.
(Civil Appeal No. 8766-67 of 2019) B
NOVEMBER 15, 2019
[R. F. NARIMAN, SURYA KANT AND
V. RAMASUBSRAMANIAN, JJ.]
Insolvency and Bankruptcy Code, 2016 – Corporate
C
Insolvency Resolution Process – Power of Committee of creditors
to approve resolution plan - On facts, resolution plans for
Corporate debtor-Essar Steel India Limited – In CIRP of corporate
debtor, ArcelorMittal India was successful resolution applicant –
Resolution plan of ArcelorMittal specifically providing for an
upfront payment of INR 35,000 crores in order to resolve debts D
amounting to INR 42,213 crores – Approval of final resolution plan
of Arcelor Mittal by Committee of Creditors – Initiation of several
proceedings – NCLT allowed the resolution plan – Challenge to,
before NCLAT – NCLAT held that there can be no difference
between a financial creditor and operational creditor in the matter
E
of payment of dues; thus, NCLAT re-distributed the proceeds
payable under the approved resolution plan as per the method of
calculation adopted by it so that all financial creditors and
operational creditors be paid 60.7% of their admitted claims;
NCLAT directed that each financial creditor (whether secured or
unsecured) with a claim equal to or more than INR 10 lakhs be F
paid 60.7% of its admitted claim irrespective of their security
interest; that operational creditors with a claim of equal to or more
than INR 1 crore be paid 60.268% of their admitted claims; that
Committee of Creditors not empowered to decide the manner of
distribution to be made between one or other creditors; that s. 53
G
cannot be applied during the corporate resolution process but will
apply only at the stage of liquidation; and that the claims decided
by the resolution professional and affirmed by the Adjudicating
Authority or the Appellate Tribunal are final and binding on all
creditors – On appeal, held: Order by NCLAT which substitutes its
wisdom for the commercial wisdom of the Committee of Creditors H
275
276 SUPREME COURT REPORTS [2019] 16 S.C.R.

A and also directs the admission of a number of claims which was
done by the resolution applicant, is set aside - CIRP of the
corporate debtor will take place in accordance with the resolution
plan of ArcelorMittal dated 23.10.2018, as amended and accepted
by the Committee of Creditors on 27.03.2019, as it has provided
for amounts to be paid to different classes of creditors by following
B
s. 30(2) and Regulation 38 of the Code.
Insolvency and Bankruptcy Code, 2016 – Resolution
professional – Role of, in the revival of the corporate debtor –
Held: Role of resolution professional is not adjudicatory but
administrative - Resolution professional manages the affairs of the
C corporate debtor as a going concern from the stage of admission
of an application u/ss. 7, 9 or 10 - He appoints and convenes
meetings of the Committee of Creditors – He collects, collates and
finally admit claims of all creditors, which must then be examined
for payment, by the resolution applicant and be finally negotiated
D and decided by the Committee of Creditors.
Prospective resolution applicant - Role of – Explained.
Insolvency and Bankruptcy Code, 2016 – Committee of
creditors - Role of, in the corporate resolution process – Held:
Committee of Creditors decides on whether or not to rehabilitate
E the corporate debtor by means of acceptance of a particular
resolution plan – Committee of Creditors may approve a resolution
plan by a vote of not less than 66% of the voting share of the
financial creditors, after considering its feasibility and viability,
and various other requirements as may be prescribed by the
Regulations - Ultimately it is the commercial wisdom of the
F Committee of Creditors which operates to approve the best
resolution plan, which is finally accepted after negotiation of its
terms by such Committee with prospective resolution applicants –
Furthermore, the Committee of Creditors does not act in any
fiduciary capacity to any group of creditors, on the contrary, it is
G to take a business decision based upon ground realities by a
majority, which then binds all stakeholders, including dissentient
creditors - Thus, commercial wisdom of this majority of creditors
is important which is to determine, through negotiation with the
prospective resolution applicant, as to how and in what manner
the corporate resolution process is to take place –ss. 21, 24, 28,
H 29, 30 and 31.
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 277
v. SATISH KUMAR GUPTA

Insolvency and Bankruptcy Code, 2016 – National Company A
Law Tribunal- Adjudicating Authority and National Company Law
Appellate Tribunal-Appellate Tribunal under – Jurisdiction of, qua
resolution approved by Committee of Creditors – Held: Adjudicating
Authority’s jurisdiction is circumscribed by s. 30(2) and Appellate
Tribunal’s jurisdiction is circumscribed by s. 32 rw s. 61(3) - B
Adjudicating Authority cannot interfere on merits with the
commercial decision taken by the Committee of Creditors, the
limited judicial review available is to see that the Committee of
Creditors has taken into account the fact that the corporate debtor
needs to keep going as a going concern during the insolvency
C
resolution process; that it needs to maximise the value of its assets;
and that the interests of all stakeholders including operational
creditors has been taken care of - If the Adjudicating Authority
finds, on a given set of facts, that the said parameters have not
been kept in view, it may send a resolution plan back to the
Committee of Creditors to re-submit such plan after satisfying the D
said parameters - Reasons given by the Committee of Creditors
while approving a resolution plan may be looked at by the
Adjudicating Authority only from this point of view, and once it is
satisfied that Committee of Creditors has paid attention to these
key features, it must then pass the resolution plan, other things E
being equal.
Insolvency and Bankruptcy Code, 2016 – Secured and
unsecured creditors – Equality principle – Held: Secured and
unsecured financial creditors are differentiated when it comes to
amounts to be paid under a resolution plan, together with what F
dissenting secured or unsecured financial creditors are to be paid
- Operational creditors are separately viewed from these secured
and unsecured financial creditors in S.No.5 of paragraph 7 of
statutory Form H - Thus, it can be seen that the Code and the
Regulations, read as a whole, lead to the conclusion that the G
equality principle cannot be stretched to treating unequals equally,
as that will destroy the very objective of the Code to resolve stressed
assets - Equitable treatment is to be accorded to each creditor
depending upon the class to which it belongs: secured or
unsecured, financial or operational. H
278 SUPREME COURT REPORTS [2019] 16 S.C.R.

A Insolvency and Bankruptcy Code, 2016 – s. 21(8), 28 -
Constitution of a sub-committee by the Committee of Creditors –
Permissibility of – Plea that the Committee of Creditors delegated
its functions to a sub-committee, as a result of which, the sub-
committee secretly made negotiations with ArcelorMittal – Held:
Section 28(1)(h) provides that though the powers of Committee of
B
Creditors are administrative in nature, they shall not be delegated
to any other person – Power of approval of resolution plan u/s.
30(4), also cannot be delegated to any other body - However, sub-
committees can be appointed for the purpose of negotiating with
resolution applicants, or for performing other ministerial or
C administrative acts, provided such acts are in the ultimate analysis
approved and ratified by the Committee of Creditors – On facts,
every single administrative decision qua approving and
administering the resolution plan submitted by ArcelorMittal was
in fact done by the requisite majority of the Committee of Creditors
itself, the sub-committee having been used only for purposes of
D
initiating proceedings and negotiating with ArcelorMittal, which
ultimately culminated in the resolution plan as finally negotiated,
being passed by the requisite majority of creditors - Standard
Chartered Bank voted in favour of the constitution of a sub-
committee and also requested for inclusion of its name in sub-
E Committee, however, when the Standard Chartered Bank found that
things were going against it that it started raising objections on
the technical plea that sub-committees cannot be constituted under
the Code, thus, plea was not bonafide and is rejected.
Insolvency and Bankruptcy Code, 2016 – s. 31(1) -
F Extinguishment of Personal Guarantees and Undecided Claims –
Held: s. 31(1) makes it clear that once a resolution plan is
approved by the Committee of Creditors it shall be binding on all
stakeholders, including guarantors – It cannot be said that part
of the resolution plan which states that the claims of the guarantor
on account of subrogation shall be extinguished, cannot be applied
G to the guarantees furnished by the erstwhile directors of the
corporate debtor – A successful resolution applicant cannot
suddenly be faced with “undecided” claims after the resolution plan
submitted by him has been accepted as this would lead to
uncertainty regarding amounts payable by a prospective resolution
H applicant who successfully took over the business of the corporate
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 279
v. SATISH KUMAR GUPTA

debtor - All claims must be submitted to and decided by the A
resolution professional so that a prospective resolution applicant
knows exactly what has to be paid in order that it may then take
over and run the business of the corporate debtor - Successful
resolution applicant does on a fresh slate.
Insolvency and Bankruptcy Code (Amendment) Act, 2019 – B
ss. 4 and 6 – Constitutional Validity of – Held: As regards s. 4 of
the Amendment Act, it is clear that as per s. 12 of the principal
Act, the Corporate Insolvency Resolution proceedings should be
mandatorily completed within a period of 330 days including any
extension and legal proceedings related to resolution process of
C
corporate debtor – Further grace period of 90 days is given,
failing which corporate debtor shall be sent into liquidation – While
leaving the provision otherwise intact, the word “mandatorily” is
struck down as being manifestly arbitrary under Article 14 of the
Constitution and as being an excessive and unreasonable
restriction on the litigant’s right to carry on business under Article D
19(1)(g) of the Constitution – As regards, the substitution of s.
30(2)(b) by s. 6 of the Amending Act of 2019, it is constitutionally
valid since the substituted s. 30(2)(b) is in fact a beneficial
provision in favour of operational creditors and dissentient
financial creditors as they are now to be paid a certain minimum
E
amount, the minimum in the case of operational creditors being the
higher of the two figures calculated under sub-clauses (i) and (ii)
of clause (b), and the minimum in the case of dissentient financial
creditor being a minimum amount that was not earlier payable –
Furthermore, Explanation 1 and 2 as also sub-clause (b) of s. 6
of the Amending Act of 2019, is constitutionally valid. F
Disposing of the appeals and the writ petitions, the Court
HELD:
Role of the resolution professional
1. The resolution professional is a person who is not only G
to manage the affairs of the corporate debtor as a going concern
from the stage of admission of an application under Sections 7,
9 or 10 of the Insolvency and Bankruptcy Code, 2016 till a
resolution plan is approved by the Adjudicating Authority, but
is also a key person who is to appoint and convene meetings of H
280 SUPREME COURT REPORTS [2019] 16 S.C.R.

A the Committee of Creditors, so that they may decide upon
resolution plans that are submitted in accordance with the
detailed information given to resolution applicants by the
resolution professional. Another very important function of the
resolution professional is to collect, collate and finally admit
claims of all creditors, which must then be examined for payment,
B
in full or in part or not at all, by the resolution applicant and be
finally negotiated and decided by the Committee of Creditors.
In Arcelor Mital India case, it is made clear that the role of
resolution professional is not adjudicatory but administrative.
[Para 27] [329-F-G; 330-A-B]
C ArcelorMittal India Private Limited v. Satish Kumar
Gupta (2019) 2 SCC 1 : [2018] 12 SCR 362 – relied
on.
Role of the prospective resolution applicant
2.1 Under the Insolvency Code, the prospective resolution
D
applicant has a right to receive complete information as to the
corporate debtor, debts owed by it, and its activities as a going
concern, prior to the admission of an application under section
7, 9 or 10 of the Code. For this purpose, it has a right to receive
information contained in the information memorandum as well
E as the evaluation matrix mentioned in Regulation 36-B. Once it
evinces an expression of interest, what follows is laid down in
Regulation 36- A(7). Thereafter, the resolution plan submitted
by the prospective resolution applicant must provide for
measures as may be necessary for the insolvency resolution of
the corporate debtor for maximisation of the value of its assets,
F which may include transfer or sale of assets or part thereof,
whether subject to security interests or not. Regulation 37
states that the plan may provide for either satisfaction or
modification of any security interest of a secured creditor and
may also provide for reduction in the amount payable to different
classes of creditors – see Regulation 37. [Para 29] [333-H; 334-
G A-B; 335-B-C]
2.2 Regulation 38 deals with the mandatory contents of a
resolution plan, making it clear that such plan must contain a
provision that the amount due to operational creditors shall be
given priority in payment over financial creditors (Regulation
H 38(1)). Such plan must also include provisions as to how to deal
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 281
v. SATISH KUMAR GUPTA

with the interests of all stakeholders including financial creditors A
and operational creditors of the corporate debtor (Regulation 38
(1A)). It must then provide for the term of the plan, management
and control of the business of the corporate debtor during such
term, and its implementation. It must also demonstrate that it
is feasible and viable, and that the resolution applicant has the
capability to implement the said plan. [Para 30] [335-B-C] B
Role of the committee of creditors in the corporate
resolution process
3.1 Since it is the commercial wisdom of the Committee
of Creditors to decide on whether or not to rehabilitate the
C
corporate debtor by means of acceptance of a particular
resolution plan, the provisions of the Code and the Regulations
outline in detail the importance of setting up of such Committee,
and leaving decisions to be made by the requisite majority of
the members of the said Committee in its discretion. Thus,
Section 21(2) of the Code mandates that the Committee of D
Creditors shall comprise all financial creditors of the corporate
debtor. “Financial creditors” are defined in Section 5(7) of the
Code as meaning persons to whom a financial debt is owed and
includes a person to whom such debt has been legally assigned
or transferred. “Financial debt” is then defined in Section 5(8)
of the Code as meaning a debt along with interest, if any, which E
is disbursed against the consideration for the time value of
money. “Secured creditor” is separately defined in Section 3(30)
of the Code as meaning a creditor in favour of whom a security
interest is created and “security interest” is defined by Section
3(31). [Para 31] [336-D-F]
F
3.2 In order to trigger application of the Code, a neat
division has been made between financial creditors and
operational creditors. Most financial creditors are secured
creditors and most operational creditors are unsecured creditors.
The rationale for only financial creditors handling the affairs of
the corporate debtor and resolving them is for reasons that have G
been deliberated upon by the BLRC Report of 2015, which
formed the basis for the enactment of the Insolvency Code. [Para
32] [337-B-C]
3.3 Section 24 of the Code deals with meetings of the
Committee of Creditors. Though voting on the approval of a H
282 SUPREME COURT REPORTS [2019] 16 S.C.R.

A resolution plan is only with the financial creditors who form the
Committee of Creditors, yet the resolution professional is to
conduct the said meeting at which members of the suspended
board of directors may be present, together with one
representative of operational creditors, provided that the
aggregate dues owed to all operational creditors is not less than
B
10% of the entire debt owed (Sections 24(2), (3) and (4) )of the
Code. Voting shall be in accordance with the voting share
assigned to each financial creditor, which is based on the financial
debts owed to such creditors (Section 24(6)) of the Code. [Para
35] [340-G-H; 341-A]
C 3.4 Even though it is the resolution professional who is
to run the business of the corporate debtor as a going concern
during the intermediate period, yet, such resolution professional
cannot take certain decisions relating to management of the
corporate debtor without the prior approval of at least 66% of
D the votes of the Committee of Creditors. Thus, it is clear that
since corporate resolution is ultimately in the hands of the
majority vote of the Committee of Creditors, nothing can be done
qua the management of the corporate debtor by the resolution
professional which impacts major decisions to be made in the
interregnum between the taking over of management of the
E corporate debtor and corporate resolution by the acceptance of
a resolution plan by the requisite majority of the Committee of
Creditors. Most importantly, under Section 30(4), the Committee
of Creditors may approve a resolution plan by a vote of not less
than 66% of the voting share of the financial creditors, after
F considering its feasibility and viability, and various other
requirements as may be prescribed by the Regulations. [Para
36] [341-B; 342-G-H; 343-A]
3.5 Regulation 18 to 26 of the 2016 Regulations deal with
meetings to be conducted by the Committee of Creditors.
Regulation 39(3) fleshes out Section 30(4) of the Code, making
G
it clear that ultimately it is the commercial wisdom of the
Committee of Creditors which operates to approve what is
deemed by a majority of such creditors to be the best resolution
plan, which is finally accepted after negotiation of its terms by
such Committee with prospective resolution applicants. [Para 37,
H 38] [343-B-E]
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 283
v. SATISH KUMAR GUPTA

3.6 The importance of the majority decision of the A
Committee of Creditors is then stated in Section 31(1) of the
Code. What is left to the majority decision of the Committee of
Creditors is the “feasibility and viability” of a resolution plan,
which obviously takes into account all aspects of the plan,
including the manner of distribution of funds among the various
B
classes of creditors. The commercial wisdom of this majority of
creditors is important which is to determine, through negotiation
with the prospective resolution applicant, as to how and in what
manner the corporate resolution process is to take place. [Para
40] [346-B-C; B-F]
K. Sashidhar v. Indian Overseas Bank (2019) SCC C
Online SC 257 – referred to.
Jurisdiction of the Adjudicating Authority and the
Appellate Tribunal
4.1 It is the Adjudicating Authority which first admits an D
application by a financial or operational creditor, or by the
corporate debtor itself under Section 7, 9 and 10 of the Code.
Once this is done, within the parameters fixed by the Code. The
Adjudicating Authority then appoints an interim resolution
professional who takes administrative decisions as to the day
to day running of the corporate debtor; collation of claims and E
their admissions; and the calling for resolution plans. After a
resolution plan is approved by the requisite majority of the
Committee of Creditors, the aforesaid plan must then pass
muster of the Adjudicating Authority under Section 31(1) of the
Code. The Adjudicating Authority’s jurisdiction is circumscribed F
by Section 30(2) of the Code. Thus, it is clear that the limited
judicial review available, which can in no circumstance trespass
upon a business decision of the majority of the Committee of
Creditors, has to be within the four corners of Section 30(2) of
the Code, insofar as the Adjudicating Authority is concerned, and
Section 32 read with Section 61(3) of the Code, insofar as the G
Appellate Tribunal is concerned, the parameters of such review
having been clearly laid down in K. Sashidhar case. [Para 41,
42] [347-A-D; 353-B]
Innoventive Industries Ltd. v. ICICI Bank, (2018) 1
SCC 407 : [2017] 8 SCR 33 ; Macquarie Bank Ltd v. H
284 SUPREME COURT REPORTS [2019] 16 S.C.R.

A Shilpi Cable Technologies Ltd. (2018) 2 SCC 674
[2017] 13 SCR 751 ; K. Sashidhar v. Indian Overseas
Bank (2019) SCC Online SC 257 – relied on.
4.2 It was submitted that K. Sashidhar case missed a very
vital provision of the Code which is contained in Section 60(5)
B of the Code; that the non-obstante clause of Section 60(5)
speaks of any other law for the time being in force, which
obviously cannot include the provisions of the Code itself.
Secondly, Section 60(5)(c) is in the nature of a residuary
jurisdiction vested in the NCLT so that the NCLT may decide
C all questions of law or fact arising out of or in relation to
insolvency resolution or liquidation under the Code. Such
residual jurisdiction does not in any manner impact Section 30(2)
of the Code which circumscribes the jurisdiction of the
Adjudicating Authority when it comes to the confirmation of a
resolution plan, as has been mandated by Section 31(1) of the
D Code. A harmonious reading, therefore, of Section 31(1) and
Section 60(5) of the Code would lead to the result that the
residual jurisdiction of the NCLT under Section 60(5)(c) cannot,
in any manner, whittle down Section 31(1) of the Code, by the
investment of some discretionary or equity jurisdiction in the
E Adjudicating Authority outside Section 30(2) of the Code, when
it comes to a resolution plan being adjudicated upon by the
Adjudicating Authority. This argument is rejected. [Para 43]
[353-G-H; 354-A-B]
4.3 The minimum value that is required to be paid to
F operational creditors under a resolution plan is set out under
Section 30(2)(b) of the Code as being the amount to be paid to
such creditors in the event of a liquidation of the corporate
debtor under Section 53. The Insolvency Committee constituted
by the Government in 2018 was tasked with studying the major
issues that arise in the working of the Code and to recommend
G
changes, if any, required to be made to the Code. The Insolvency
Committee Report, 2018, inter alia, deliberated upon the
objections to Section 30(2)(b) of the Code, inasmuch as it
provided for a minimum payment of a “liquidation value” to the
operational creditors and nothing more. Ultimately, the
H Committee decided against any amendment to be made to the
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 285
v. SATISH KUMAR GUPTA

existing scheme of the Code, thereby retaining the prescription A
as to the minimum value that was to be paid to the operational
creditors under a resolution plan. However, the operational
creditors, the preamble of the Code does speak of maximisation
of the value of assets of corporate debtors and the balancing of
the interests of all stakeholders. There is no doubt that a key B
objective of the Code is to ensure that the corporate debtor
keeps operating as a going concern during the insolvency
resolution process and must therefore make past and present
payments to various operational creditors without which such
operation as a going concern would become impossible. Sections
5(26), 14(2), 20(1), 20(2)(d) and (e) of the Code read with C
Regulations 37 and 38 of the 2016 Regulations all speak of the
corporate debtor running as a going concern during the
insolvency resolution process. Workmen need to be paid,
electricity dues need to be paid, purchase of raw materials need
to be made, etc. [Para 44, 45] [354-C-D; 356-E-G] D
4.4 Regulation 38(1A) speaks of a resolution plan including
a statement as to how it has dealt with the interests of all
stakeholders, including operational creditors of the corporate
debtor. Regulation 38(1) also states that the amount due to
operational creditors under a resolution plan shall be given E
priority in payment over financial creditors. If nothing is to be
paid to operational creditors, the minimum, being liquidation
value - which in most cases would amount to nil after secured
creditors have been paid - would certainly not balance the
interest of all stakeholders or maximise the value of assets of a
corporate debtor if it becomes impossible to continue running F
its business as a going concern. Thus, it is clear that when the
Committee of Creditors exercises its commercial wisdom to
arrive at a business decision to revive the corporate debtor, it
must necessarily take into account these key features of the
Code before it arrives at a commercial decision to pay off the
G
dues of financial and operational creditors. There is no doubt
whatsoever that the ultimate discretion of what to pay and how
much to pay each class or sub-class of creditors is with the
Committee of Creditors, but, the decision of such Committee
must reflect the fact that it has taken into account maximising
the value of the assets of the corporate debtor and the fact that H
286 SUPREME COURT REPORTS [2019] 16 S.C.R.

A it has adequately balanced the interests of all stakeholders
including operational creditors. This being the case, judicial
review of the Adjudicating Authority that the resolution plan as
approved by the Committee of Creditors has met the
requirements referred to in Section 30(2) would include judicial
review that is mentioned in Section 30(2)(e), as the provisions
B of the Code are also provisions of law for the time being in force.
Thus, while the Adjudicating Authority cannot interfere on merits
with the commercial decision taken by the Committee of
Creditors, the limited judicial review available is to see that the
Committee of Creditors has taken into account the fact that the
C corporate debtor needs to keep going as a going concern during
the insolvency resolution process; that it needs to maximise the
value of its assets; and that the interests of all stakeholders
including operational creditors has been taken care of. If the
Adjudicating Authority finds, on a given set of facts, that the said
parameters have not been kept in view, it may send a resolution
D plan back to the Committee of Creditors to re-submit such plan
after satisfying the said parameters. The reasons given by the
Committee of Creditors while approving a resolution plan may
thus be looked at by the Adjudicating Authority only from this
point of view, and once it is satisfied that the Committee of
E Creditors has paid attention to these key features, it must then
pass the resolution plan, other things being equal. [Para 46] [358-
A-H; 359-A]
Secured and unsecured creditors; the equality principle
5.1 There is no doubt that even under the Code,
F reorganisation is a collective remedy designed to find an
optimum solution for all parties connected with a business in the
manner provided by the Code. Protecting creditors in general
is, no doubt, an important objective, protecting creditors from
each other is also important. What is meant by protecting
G creditors from each other is only that a Bankruptcy Code should
not be read so as to imbue creditors with greater rights in a
bankruptcy proceeding than they would enjoy under the general
law, unless it is to serve some bankruptcy purpose. [Para 49]
[365-G-H]
American Jurisprudence 2d, Volume 9 – referred to.
H
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 287
v. SATISH KUMAR GUPTA

5.2 The World Bank Report of 2010, titled “A Global View A
of Business Insolvency Systems” is an earlier report, which
opined on the basis of the French system, that creditors are
divided into two separate classes without any further sub-
classification and that the advantage of such system is that it
avoids potential conflict of interest among creditors in a particular
B
class. Even according to this report, therefore, a “cramdown”
on dissentient creditors would pass muster under an insolvency
law if such creditors will receive, under a resolution plan, an
amount at least equal to what such creditors would receive in a
liquidation proceeding being “liquidation value”. [Para 52] [369-
B-E] C
IMF paper on Development of Standards for Security
Interest by Pascale De Boeck and Thomas Laryea,
Counsel, IMF Legal Department; World Bank Report
of 2010, titled “A Global View of Business Insolvency
Systems”; Principles of International Insolvency by D
Philip R Wood’s – referred to.
5.3 Indeed, if an “equality for all” approach recognising
the rights of different classes of creditors as part of an insolvency
resolution process is adopted, secured financial creditors will,
in many cases, be incentivised to vote for liquidation rather than E
resolution, as they would have better rights if the corporate
debtor was to be liquidated rather than a resolution plan being
approved. This would defeat the entire objective of the Code
which is to first ensure that resolution of distressed assets takes
place and only if the same is not possible should liquidation
follow. [Para 54] [370-F-G] F

5.4 Financial creditors are in the business of lending
money. It is clear that financial creditors earn profit by earning
interest on money lent with low margins, generally being
between 1 to 4%. Also, financial creditors are capital providers
for companies, who in turn are able to purchase assets and G
provide a working capital to enable such companies to run their
business operation, whereas operational creditors are
beneficiaries of amounts lent by financial creditors which are
then used as working capital, and often get paid for goods and
services provided by them to the corporate debtor, out of such H
288 SUPREME COURT REPORTS [2019] 16 S.C.R.

A working capital. On the other hand, market research carried out
by India Brand Equity Foundation, a trust established by the
Ministry of Commerce and Industry, as regards the Oil and Gas
sector, has stated that the business risk of operational creditors
who operate with higher profit margins and shorter cyclical
repayments must needs be higher. Also, operational creditors
B
have an immediate exit option, by stopping supply to the
corporate debtor, once corporate debtors start defaulting in
payment. Financial creditors may exit on their long-term loans,
either upon repayment of the full amount or upon default, by
recalling the entire loan facility and/or enforcing the security
C interest which is a time consuming and lengthy process which
usually involves litigation. Financial creditors are also part of a
regulated banking system which involves not merely declaring
defaulters as non-performing assets but also involves
restructuring such loans which often results in foregoing unpaid
amounts of interest either wholly or partially. [Para 55] [370-H;
D
371-A-E]
5.5 By reading paragraph 77 of the Swiss Ribbons case, de
hors the earlier paragraphs, the Appellate Tribunal has fallen into
grave error. Paragraph 76 clearly refers to the UNCITRAL
Legislative Guide which makes it clear beyond any doubt that
E
equitable treatment is only of similarly situated creditors. This
being so, the observation in paragraph 77 cannot be read to mean
that financial and operational creditors must be paid the same
amounts in any resolution plan before it can pass muster. On
the contrary, paragraph 77 itself makes it clear that there is a
F difference in payment of the debts of financial and operational
creditors, operational creditors having to receive a minimum
payment, being not less than liquidation value, which does not
apply to financial creditors. The amended Regulation 38 set out
in paragraph 77 again does not lead to the conclusion that
G financial and operational creditors, or secured and unsecured
creditors, must be paid the same amounts, percentage wise,
under the resolution plan before it can pass muster. Fair and
equitable dealing of operational creditors’ rights under the said
Regulation involves the resolution plan stating as to how it has
dealt with the interests of operational creditors, which is not the
H same thing as saying that they must be paid the same amount
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 289
v. SATISH KUMAR GUPTA

of their debt proportionately. Also, the fact that the operational A
creditors are given priority in payment over all financial creditors
does not lead to the conclusion that such payment must
necessarily be the same recovery percentage as financial
creditors. So long as the provisions of the Code and the
Regulations have been met, it is the commercial wisdom of the B
requisite majority of the Committee of Creditors which is to
negotiate and accept a resolution plan, which may involve
differential payment to different classes of creditors, together
with negotiating with a prospective resolution applicant for better
or different terms which may also involve differences in
distribution of amounts between different classes of creditors. C
[Para 56] [375-D-H; 376-A-B]
5.6 Indeed, by vesting the Committee of Creditors with
the discretion of accepting resolution plans only with financial
creditors, operational creditors having no vote, the Code itself
differentiates between the two types of creditors. Most financial D
creditors are secured creditors, whose security interests must
be protected in order that they do not go ahead and realise their
security in legal proceedings, but instead are incentivised to act
within the framework of the Code as persons who will resolve
stressed assets and bring a corporate debtor back to its feet. E
The argument that the expression “secured creditor” does not
find mention in Chapter II of the Code, which deals with the
resolution process, and is only found in Chapter III, which deals
with liquidation, is for the reason that secured creditors as a class
are subsumed in the class of financial creditors. Indeed,
F
Regulation 13(1) of the 2016 Regulations mandates that when
the resolution professional verifies claims, the security interest
of secured creditors is also looked at and gets taken care of.
Similarly, Regulation 36(2)(d) when it provides for a list of
creditors and the amounts claimed by them in the information
memorandum (which is to be submitted to prospective resolution G
applicants), also provides for the amount of claims admitted and
security interest in respect of such claims. Under Regulation
39(4), the compliance certificate of the resolution professional
as to the CIRP being successful is contained in Form H to the
Regulations. [Para 57] [376-B-F] H
290 SUPREME COURT REPORTS [2019] 16 S.C.R.

A Swiss Ribbons Private Limited v. Union of India (2019)
4 SCC 17 : [2019] 3 SCR 535 – referred to.
5.7 Secured and unsecured financial creditors are
differentiated when it comes to amounts to be paid under a
resolution plan, together with what dissenting secured or
B unsecured financial creditors are to be paid. And, most
importantly, operational creditors are separately viewed from
these secured and unsecured financial creditors in S.No.5 of
paragraph 7 of statutory Form H. Thus, it can be seen that the
Code and the Regulations, read as a whole, together with the
observations of expert bodies and this Court’s judgment, all lead
C to the conclusion that the equality principle cannot be stretched
to treating unequals equally, as that will destroy the very
objective of the Code - to resolve stressed assets. Equitable
treatment is to be accorded to each creditor depending upon the
class to which it belongs: secured or unsecured, financial or
operational. [Para 57] [377-D-F]
D
5.8 It is the Committee of Creditors, under Section 30(4)
read with Regulation 39(3), that is vested with the power to
approve resolution plans and make modifications therein as the
Committee deems fit. It is this vital difference between the
jurisdiction of the High Court under Section 392 of the
E Companies Act, 1956 and the jurisdiction of the Adjudicating
Authority under the Code that must be kept in mind when the
Adjudicating Authority is to decide on whether a resolution plan
passes muster under the Code. When this distinction is kept in
mind, it is clear that there is no residual jurisdiction not to
F approve a resolution plan on the ground that it is unfair or unjust
to a class of creditors, so long as the interest of each class has
been looked into and taken care of. [Para 58] [379-G-H; 380-
A]
Mihir R. Mafatlal v. Mafatlal Industries Ltd. (1997) 1
SCC 579 : [1996] 6 Suppl. SCR 1 – referred to.
G
The constitution of a sub-committee by the Committee of
Creditors
6.1 The submission of the counsel for Standard Chartered
Bank centered around the fact that the Committee of Creditors
H delegated its functions to a sub-committee, which delegation is
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 291
v. SATISH KUMAR GUPTA

impermissible. As a result of this delegation, the sub-committee A
secretly made negotiations with ArcelorMittal, which secret
negotiations then produced a wholly inequitable result in that
Standard Chartered Bank, though a financial creditor, was only
paid 1.74% of its admitted claim of INR 3487 crores as opposed
to other financial creditors who were paid 74.8% of what was
B
claimed by them. [Para 59]
6.2 Under Section 21(8) of the Code, all decisions by the
Committee of Creditors can be taken by a 51% majority vote,
unless, a higher percentage is required under other specific
provisions of the Code. When it comes to the exercise of the
Committee of Creditors’ powers on questions which have a vital C
bearing on the running of the business of the corporate debtor,
Section 28(1)(h) provides that though these powers are
administrative in nature, they shall not be delegated to any other
person, meaning thereby, that the Committee of Creditors alone
must take the decisions mentioned in Section 28 and not any D
person other than such Committee. When it comes to approving
a resolution plan under Section 30(4), there is no doubt
whatsoever that this power also cannot be delegated to any other
body as it is the Committee of Creditors alone that has been
vested with this important business decision which it must take
by itself. However, this does not mean that sub-committees E
cannot be appointed for the purpose of negotiating with
resolution applicants, or for the purpose of performing other
ministerial or administrative acts, provided such acts are in the
ultimate analysis approved and ratified by the Committee of
Creditors. Having gone through the minutes of all the important F
creditors’ meetings that were held, it is found that every single
administrative decision qua approving and administering the
resolution plan submitted by ArcelorMittal was in fact done by
the requisite majority of the Committee of Creditors itself, the
sub- committee having been used only for purposes of initiating
proceedings and negotiating with ArcelorMittal, which ultimately G
culminated in the resolution plan as finally negotiated, being
passed by the requisite majority of creditors on 23.10.2018. In
point of fact, Standard Chartered Bank voted in favour of the
constitution of a sub-committee on the 12 th committee of
creditors meeting of 02.05.2018, as also, in favour of decisions H
292 SUPREME COURT REPORTS [2019] 16 S.C.R.

A of the Committee of Creditors finalizing drafts of sub-committees
on eligibility of resolution applicants at the 13th Committee of
Creditors meeting on 05.05.2018. Also, as a matter of fact, on
31.05.2018, at the 16 th Committee of Creditors meeting, a
request was made by Standard Chartered Bank to be a member
of the sub-committee, which request was later withdrawn. In the
B
authorisation to the sub-committee to negotiate with
ArcelorMittal, mooted at the 20 th Committee of Creditors
meeting on 19.10.2018, a request was made by Standard
Chartered Bank for inclusion in the said sub-committee.
However, Standard Chartered Bank did not agree to put the
C reconstitution of the sub- committee to vote by the Committee
of Creditors. Given these facts, thus, it is only when Standard
Chartered Bank found that things were going against it that it
started raising objections on the technical plea that sub-
committees cannot be constituted under the Code. This is not
a bonafide plea. The this objection of Standard Chartered Bank
D
is also rejected. [Para 60, 62] [380-E; 383-A-H; 384-A]
Pradyat Kumar Bhose v. The Hon’ble the Chief Justice
of Calcutta High Court [1955] 2 SCR 1331 ; High
Court of Judicature at Bombay through its Registrar
v. Shirishkumar Rangrao Patil & Anr. (1997) 6 SCC
E
339: [1997] 3 SCR 1131 – referred to.
Extinguishment of Personal Guarantees and Undecided
Claims
7.1 Section 31(1) of the Code makes it clear that once a
F resolution plan is approved by the Committee of Creditors it
shall be binding on all stakeholders, including guarantors. This
is for the reason that this provision ensures that the successful
resolution applicant starts running the business of the corporate
debtor on a fresh slate as it were. [Para 65] [386-E-F]
G 7.2 Following the State Bank of India’s judgment, it is
difficult to accept the submission that that part of the resolution
plan which states that the claims of the guarantor on account of
subrogation shall be extinguished, cannot be applied to the
guarantees furnished by the erstwhile directors of the corporate
H debtor. So far as the instant case is concerned, nothing is said
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 293
v. SATISH KUMAR GUPTA

which may affect the pending litigation on account of invocation A
of these guarantees. However, the NCLAT judgment being
contrary to Section 31(1) of the Code and this Court’s judgment
in State Bank of India case, is set aside. [Para 66] [387-C-D]
State Bank of India v. V. Ramakrishnan, (2018) 9
SCALE 597 – relied on. B
7.3 The impugned NCLAT judgment in holding that claims
that may exist apart from those decided on merits by the
resolution professional and by the Adjudicating Authority/
Appellate Tribunal can now be decided by an appropriate forum
in terms of Section 60(6) of the Code, also militates against the C
rationale of Section 31 of the Code. A successful resolution
applicant cannot suddenly be faced with “undecided” claims after
the resolution plan submitted by him has been accepted as this
would amount to a hydra head popping up which would throw
into uncertainty amounts payable by a prospective resolution
applicant who successfully take over the business of the D
corporate debtor. All claims must be submitted to and decided
by the resolution professional so that a prospective resolution
applicant knows exactly what has to be paid in order that it may
then take over and run the business of the corporate debtor.
This the successful resolution applicant does on a fresh slate.
For these reasons, the NCLAT judgment must also be set aside E
on this count. [Para 67] [387-E-G]
Utilisation of profits of the corporate debtor during CIRP
to pay off creditors
8. The RFP issued in terms of Section 25 of the Code and
F
consented to by ArcelorMittal and the Committee of Creditors
had provided that distribution of profits made during the
corporate insolvency process will not go towards payment of
debts of any creditor (Clause 7 of the first addendum to the RFP
dated 08.02.2018). On this short ground, this part of the
judgment of the NCLAT is also incorrect. [Para 68] [387-H; 388- G
A]
Constitutional Validity of Section 4 and 6 of the Amending
Act, 2019
9.1 There is no doubt that the Amending Act of 2019
consists of several Sections which have been enacted/amended H
294 SUPREME COURT REPORTS [2019] 16 S.C.R.

A as difficulties have arisen in the working of the Code. While it
is true that it may well be that the law laid down by the NCLAT
in this very case forms the basis for some of these amendments,
it cannot be said that the legislature has directly set aside the
judgment of the NCLAT. Since an appeal against the judgment
of the NCLAT lies to the Supreme Court, the legislature is well
B
within its bounds to lay down laws of general application to all
persons affected, bearing in mind what it considers to be a curing
of a defective reading of the law by an Appellate Tribunal. There
can be no doubt whatsoever that apart from the present case
the amendments made by the Amending Act of 2019 apply down
C the board to all persons who are affected by its provisions. Also,
it is settled law that bad faith, in the sense of improper motives,
cannot be ascribed to a legislature making laws. Therefore for
all these reasons Sections 4 and 6 of the Amending Act of 2019
cannot be struck down on this score. [Para 73] [392-H; 393-A-
C; 395-B]
D
Gajapati Narayan Deo and Others v. State of Orissa
[1954] SCR 1 ; STO v. Ajit Mills Ltd. (1977) 4 SCC
98 : [1978] 1 SCR 338 – referred to.
9.2 So far as Section 4 is concerned, it is clear that the
E original timelines in which a CIRP must be completed have now
been extended to 330 days, which is 60 days more than 180 plus
90 days (which is equal to 270 days). But this 330-day period
includes the time taken in legal proceedings in relation to such
resolution process of the corporate debtor. This provision is to
F get over what is stated in the judgment in ArcelorMittal India
case, that the time taken in legal proceedings in relation to the
corporate resolution process must be excluded from the timeline
mentioned in Section 12. Secondly, the third proviso added to
the Section also mandates that where the period of 330 days is
over on the date of commencement of the Amending Act of
G 2019, a further grace period of 90 days from such date is given,
within which such process shall either be completed or the
corporate debtor be sent into liquidation. The raison d’être for
this provision comes from the experience that has been plaguing
the legislature ever since SICA was promulgated. [Para 74, 75]
H [395-B-E]
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 295
v. SATISH KUMAR GUPTA

Madras Petrochem Limited v. BIFR (2016) 4 SCC 1 : A
[2016] 11 SCR 419 – referred to.
9.3 The speech of the Hon’ble Minister on the floor of the
House of the Rajya Sabha also reflected the fact that with the
passage of time the original intent of quick resolution of stressed
assets is getting diluted. It is therefore essential to have time- B
bound decisions to reinstate this legislative intent. It was also
pointed out on the floor of the House that the experience in the
working of the Code has not been encouraging. As the speech
of the Hon’ble Minister on the floor of the House only indicates
the object for which the amendment was made and as it contains
certain data which it is useful to advert to, aid is taken from the C
speech not in order to construe the amended Section 12, but
only in order to explain why the Amending Act of 2019 was
brought about. [Para 76, 77] [397-H; 398-A; 400-F-G]
K.P. Varghese v. ITO [1982] 1 SCR 629 ; K.S.
Paripoornan v. State of Kerala (1994) 5 SCC 593 : D
[1994] 3 Suppl. SCR 405 – referred to.
9.4 Given the fact that timely resolution of stressed assets
is a key factor in the successful working of the Code, the only
real argument against the amendment is that the time taken in
legal proceedings cannot ever be put against the parties before E
the NCLT and NCLAT based upon a Latin maxim which sub-
serves the cause of justice namely, actus curiae neminem
gravabit. [Para 78] [400-G-H]
Atma Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC
284 : [1988] 2 Suppl. SCR 528 ; Sarah Mathew v. F
Institute of Cardio Vascular Diseases, (2014) 2 SCC
62 : [2013] 12 SCR 674 ; Neeraj Kumar Sainy v. State
of Uttar Pradesh (2017) 14 SCC 136 : [2017] 4 SCR
881 – referred to.
9.5 The time taken in legal proceedings cannot possibly G
harm a litigant if the Tribunal itself cannot take up the litigant’s
case within the requisite period for no fault of the litigant, a
provision which mandatorily requires the CIRP to end by a
certain date - without any exception thereto - may well be an
excessive interference with a litigant’s fundamental right to non- H
296 SUPREME COURT REPORTS [2019] 16 S.C.R.

A arbitrary treatment under Article 14 and an excessive, arbitrary
and therefore unreasonable restriction on a litigant’s fundamental
right to carry on business under Article 19(1)(g) of the
Constitution of India. This being the case, this Court would
ordinarily have struck down the provision in its entirety.
However, that would then throw the baby out with the bath water,
B
inasmuch as the time taken in legal proceedings is certainly an
important factor which causes delay, and which has made
previous statutory experiments fail as in Madras Petrochem case.
Thus, while leaving the provision otherwise intact, the word
“mandatorily” is striked down as being manifestly arbitrary under
C Article 14 of the Constitution of India and as being an excessive
and unreasonable restriction on the litigant’s right to carry on
business under Article 19(1)(g) of the Constitution. The effect
of this declaration is that ordinarily the time taken in relation to
the corporate resolution process of the corporate debtor must
be completed within the outer limit of 330 days from the
D
insolvency commencement date, including extensions and the
time taken in legal proceedings. However, on the facts of a given
case, if it can be shown to the Adjudicating Authority and/or
Appellate Tribunal under the Code that only a short period is
left for completion of the insolvency resolution process beyond
E 330 days, and that it would be in the interest of all stakeholders
that the corporate debtor be put back on its feet instead of being
sent into liquidation and that the time taken in legal proceedings
is largely due to factors owing to which the fault cannot be
ascribed to the litigants before the Adjudicating Authority and/
or Appellate Tribunal, the delay or a large part thereof being
F
attributable to the tardy process of the Adjudicating Authority
and/or the Appellate Tribunal itself, it may be open in such cases
for the Adjudicating Authority and/or Appellate Tribunal to
extend time beyond 330 days. Likewise, even under the newly
added proviso to Section 12, if by reason of all the said factors
G the grace period of 90 days from the date of commencement of
the Amending Act of 2019 is exceeded, there again a discretion
can be exercised by the Adjudicating Authority and/or Appellate
Tribunal to further extend time keeping the aforesaid parameters
in mind. It is only in such exceptional cases that time can be
extended, the general rule being that 330 days is the outer limit
H within which resolution of the stressed assets of the corporate
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 297
v. SATISH KUMAR GUPTA

debtor must take place beyond which the corporate debtor is A
to be driven into liquidation. [Para 79] [402-E-H; 403-A-E]
Madras Petrochem Limited v. BIFR (2016) 4 SCC 1 :
[2016] 11 SCR 419 – referred to.
9.6 When it comes to the validity of the substitution of
Section 30(2)(b) by Section 6 of the Amending Act of 2019, it is B
clear that the substituted Section 30(2)(b) gives operational
creditors something more than was given earlier as it is the
higher of the figures mentioned in sub-clauses (i) and (ii) of sub-
clause (b) that is now to be paid as a minimum amount to
operational creditors. The same goes for the latter part of sub- C
clause (b) which refers to dissentient financial creditors. Section
30(2)(b) is in fact a beneficial provision in favour of operational
creditors and dissentient financial creditors as they are now to
be paid a certain minimum amount, the minimum in the case of
operational creditors being the higher of the two figures
calculated under sub-clauses (i) and (ii) of clause (b), and the D
minimum in the case of dissentient financial creditor being a
minimum amount that was not earlier payable. As a matter of
fact, pre-amendment, secured financial creditors may cramdown
unsecured financial creditors who are dissentient, the majority
vote of 66% voting to give them nothing or next to nothing for E
their dues. In the earlier regime it may have been possible to
have done this but after the amendment such financial creditors
are now to be paid the minimum amount mentioned in sub-
section (2). The order of priority of payment of creditors
mentioned in Section 53 is not engrafted in sub-section (2)(b)
as amended. Section 53 is only referred to in order that a certain F
minimum figure be paid to different classes of operational and
financial creditors. It is only for this purpose that Section 53(1)
is to be looked at as it is clear that it is the commercial wisdom
of the Committee of Creditors that is free to determine what
amounts be paid to different classes and sub-classes of creditors G
in accordance with the provisions of the Code and the
Regulations made thereunder. [Para 80] [402-E-H; 404-A-C]
9.7 It is clear that Explanation 1 has only been inserted
in order that the Adjudicating Authority and the Appellate
Tribunal cannot enter into the merits of a business decision of H
298 SUPREME COURT REPORTS [2019] 16 S.C.R.

A the requisite majority of the Committee of Creditors. There is
no residual equity jurisdiction in the Adjudicating Authority or
the Appellate Tribunal to interfere in the merits of a business
decision taken by the requisite majority of the Committee of
Creditors, provided that it is otherwise in conformity with the
provisions of the Code and the Regulations. [Para 81] [404-D-
B
E]
9.8 Equally, Explanation 2 applies the substituted Section
to pending proceedings either at the level of the Adjudicating
Authority or the Appellate Authority or in a Writ or Civil Court.
No vested right inheres in any resolution applicant to have its
C plan approved under the Code. An appellate proceeding is a
continuation of an original proceeding. This being so, a change
in law can always be applied to an original or appellate
proceeding. For this reason also, Explanation 2 is
constitutionally valid, not having any retrospective operation so
D as to impair vested rights. [Para 82] [404-F-H]
ArcelorMittal India Private Limited v. Satish Kumar
Gupta (2019) 2 SCC 1 : [2018] 12 SCR 362 Swiss
Ribbons Private Limited v. Union of India (2019) 4
SCC 17 : [2019] 3 SCR 535 ; Lachmeshwar Prasad
E Shukul v. Keshwar Lal Chaudhuri AIR 1941 FC 5 ;
Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj
Developers & Ors. (2003) 6 SCC 659 – relied on.
9.9 The challenge to sub-clause (b) of Section 6 of the
Amending Act of 2019, again goes to the flexibility that the Code
F gives to the Committee of Creditors to approve or not to
approve a resolution plan and which may take into account
different classes of creditors as is mentioned in Section 53, and
different priorities and values of security interests of a secured
creditor. This flexibility is referred to in the BLRC report, 2015.
Also, the discretion given to the Committee of Creditors by the
G word “may” again makes it clear that this is only a guideline
which is set out by this sub-section which may be applied by the
Committee of Creditors in arriving at a business decision as to
acceptance or rejection of a resolution plan. Thus, it is difficult
to hold that any of these provisions is constitutionally infirm.
H [Para 83] [405-A-C]
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 299
v. SATISH KUMAR GUPTA

The resolution plan of ArcelorMittal as amended and A
objections thereto
10.1 The resolution plan submitted by ArcelorMittal on
02.04.2018 proposed an upfront payment of INR 35,000 crores
towards resolution of the debt of INR 49,213 crores of financial
creditors. This was buttressed by a letter of commitment from B
Credit Agricole Corporate and Investment Bank. From this
upfront cash recovery, unsecured financial creditors were to be
paid only an aggregate amount of 5% of their admitted claims.
Apart from this, INR 8,000 crores of upfront fresh capital infusion
for improving operations and enhancing revival prospects of the C
corporate debtor was also proposed. So far as operational
creditors were concerned, it was proposed that workmen and
employees were to be paid INR 18 crores in full against their
admitted claims, and out of other operational creditors, those
small trade creditors defined as “having admitted claims of less
than INR 1 crore” were to be paid in full, as opposed to trade D
and government creditors of over INR 1 crore, who were to be
paid aggregate amount INR 196 crores. Other operational
creditors were to be given nothing, liquidation value being
payable to operational creditors as a class being in any case nil
(INR 3339 crores were the aggregate admitted claims of all E
operational creditors as a class). [Para 84] [405-D-G]
10.2 On 22.10.2018, various changes were made in the
original resolution plan. It was stated that the value and quality
of security should be the basis on which proceeds should be
distributed by most of the secured financial creditors. This F
amended resolution plan was approved by a majority of 92.24%
of financial creditors. The sharing ratio between secured financial
creditors having charge on project assets of the corporate debtor
was 99.86% as opposed to 0.14%, so far as Standard Chartered
Bank was concerned, which only had a charge on the pledge of
shares of ESOL, being an offshore subsidiary of the corporate G
debtor. The upfront payment to secured financial creditors on
the effective date would now be INR 41,909.29 crores and INR
60.71 crores to Standard Chartered Bank. It was pointed out that
this was based on the worth of those shares as security, being
only INR 24.86 crores. The final resolution plan as approved on H
300 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 23.10.2018 was as follows - in the place of INR 35,000 crores
to be paid on the effective date as an upfront amount, INR
39,500 crores and INR 2500 crores, aggregating INR 42,000
crores was to be paid. The resolution applicant agreed that the
Committee of Creditors will decide the manner in which the
financial package being offered by the resolution applicant to
B
financial creditors will be distributed to secured financial
creditors. The payment of INR 17.4 crore was to be made to
unsecured financial creditors with a claim amount of more than
INR 10 lakhs, and INR 30.55 lakhs to such creditors with a claim
amount of less than INR 10 lakhs, with the fresh capital infusion
C for improving operations and enhancing revival prospects of the
corporate debtor remaining at INR 8,000 crores. So far as
operational creditors were concerned, there was no change
made. At the 22nd meeting of the Committee of Creditors dated
27.03.2019, it was felt that INR 1,000 crores extra be paid for
operational creditors over and above INR 1 crore each. Finally,
D
the allocation of INR 1,000 crore extra to operational creditors
was approved by a majority of 70.73% of the COC. [Para 85-
88] [408-E; 409-B-D; 413-C-E; 417-D]
10.3 The submission of Standard Chartered Bank, that the
offer made by ArcelorMittal of payment of INR 42,000 crores
E as upfront in order to pay 100% principal outstanding of secured
financial creditors of the corporate debtor cannot be accepted.
Given that Standard Chartered Bank was reclassified as a
secured financial creditor of the corporate debtor only on
10.09.2018 and that the said upfront payment of INR 42,000
F crores would include the principal amount payable to Standard
Chartered Bank as well, it is seen how in the course of
negotiation, the vast majority of financial creditors have ultimately
decided that Standard Chartered Bank will only get an amount
based on its security interest, which was accepted by
ArcelorMittal. It was submitted that the final resolution plan
G ultimately offered a sum of INR 39,500 crores instead of INR
42,000 crores, being a minimum upfront payment from which it
was possible to negotiate upwards but not downwards. A
conclusion cannot be arrived at that the acceptance of the
resolution plan by the majority of the Committee of Creditors
H should be set aside on this score, inter alia, for the reason that
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 301
v. SATISH KUMAR GUPTA

the counsel for Standard Chartered Bank assured that he was A
not attacking the acceptance of the revised plan but only
distribution of amounts payable under the said plan. This being
so, it cannot be said that “feasibility and viability” of a resolution
plan will not include distribution of the amount of debt under the
said plan; and that the resolution plan must itself provide for
B
distribution inter se between secured financial creditors. It is
enough that under the Code and the Regulations, the resolution
plan provides for distribution of amounts payable towards debts
based upon a classification of various types of creditors. This
both the original plan as well as the negotiated plan of
ArcelorMittal have already done, both plans containing the C
amount to be paid to workmen separately, operational creditors
of INR 1 crore and less separately, operational creditors of INR
1 crore and over separately and financial creditors, subdivided
into secured and unsecured as sub-classes, separately. All that
was left for distribution by ArcelorMittal was distribution inter
D
se between secured financial creditors which was then done by
a majority of 92.24%, based upon the value of their respective
security interests. Therefore, the allegation that the Committee
of Creditors relieved ArcelorMittal from the solemn offer made
before the Supreme Court by reducing the offer amount of INR
42,000 crores by INR 2,500 crores so that ArcelorMittal could E
acquire the debts of OSPIL, is again a matter for negotiation
being a business decision taken by the Committee of Creditors
with ArcelorMittal. In any case ultimately INR 35,000 crores was
upped to INR 42,000 crores, it being made clear in the final
resolution plan that upfront payment of INR 42,000 crores is a
F
committed amount, even if working capital adjustment turns out
to be below INR 2,500 crores. [Para 89] [417-E-H; 418-A-E]
10.4 It cannot be said that the Adjudicatory Authority and
consequently the Appellate Authority would be vested with the
discretion to apply what was applied by the Committee of G
Creditors in the Orissa Manganese case. [Para 91] [419-E]
10.5 The submission that Section 53 of the Code would
be applicable only during liquidation and not at the stage of
resolving insolvency is correct. Section 30(2)(b) of the Code
refers to Section 53 not in the context of priority of payment of H
302 SUPREME COURT REPORTS [2019] 16 S.C.R.

A creditors, but only to provide for a minimum payment to
operational creditors. However, this again does not in any
manner limit the Committee of Creditors from classifying
creditors as f inancial or operational and as secured or
unsecured. Full freedom and discretion has been given, to the
B Committee of Creditors to so classify creditors and to pay
secured creditors amounts which can be based upon the value
of their security, which they would otherwise be able to realise
outside the process of the Code, thereby stymying the corporate
resolution process itself. [Para 92] [419-F-G]
C 10.6 The submission based upon serious conflict of
interest between secured and unsecured financial creditors, as
the majority may get together to ride roughshod over the
minority, flies in the face of the majority of financial creditors
being given complete discretion over feasibility and viability of
resolution plans, which includes the manner of distribution of
D debts that is contained in them, subject to following the
provisions of the Code relating, inter alia, to dealing with the
interests of all stakeholders including operational creditors. The
Committee of Creditors does not act in any fiduciary capacity
to any group of creditors, as submitted by the counsel for
E Standard Chartered Bank. On the contrary, it is to take a
business decision based upon ground realities by a majority,
which then binds all stakeholders, including dissentient
creditors. It is important to note that the original threshold
required by way of majority was 75%. It is during the working
of the Code that this was found to be unrealistic and therefore
F reduced to 66% (amendments made to Section 28(3) and 30(4)
of the Code by the Insolvency and Bankruptcy Code (Second
Amendment) Act of 2018). [Para 93] [420-A-D]
10.7 The NCLAT judgment which substitutes its wisdom
for the commercial wisdom of the Committee of Creditors and
G which also directs the admission of a number of claims which
was done by the resolution applicant, without prejudice to its
right to appeal against the said judgment, is set aside. [Para 94]
[420-E]
10.8 So far as Civil Appeal No. 6409 of 2019 is concerned,
H the cheques issued by the corporate debtor due to its payment
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 303
v. SATISH KUMAR GUPTA

obligation towards BP Limited were not issued with a view to A
secure any payment obligation of the principal borrower i.e.
EPGL, is a finding of fact which dislodges the claim of this
appellant to be regarded as a financial creditor. There is no
infirmity in the said finding. [Para 95] [420-F]
10.9 So far as Civil Appeal Diary No. 36838 is concerned, B
the NCLAT erred inasmuch as it added the claim of this
Appellant to the tune of INR 861.19 crore despite the fact that
the claim had already been admitted by the resolution
professional thereby resulting in a double counting of the debt
of this Appellant. This being the position, that part of the
impugned NCLAT judgment is set aside as well. [Para 96] [420- C
G-H; 421-A]
10.10 So far as Civil Appeal No. 6266 of 2019, there is no
reason to dislodge the finding of the NCLAT that the claim was
filed by the Appellant after the approval of the resolution plan.
However, the NCLAT’s finding that the said claim is subject to D
arbitration and that it was open for the Appellant to pursue the
matter in terms of Section 60(6) of the Code deserves to be set
aside in terms of this judgment. [Para 97] [421-A]
10.11 As regards Civil Appeal No. 6269 of 2019, there is
force in the contention of the Appellant that there has been an E
error in the impugned NCLAT judgment in as much as it notes
the claim amount, as admitted, as being a sum of INR 124.88
crores, but later in the same judgment notes the said amount
as INR 2.47 crores based on a chart submitted by the resolution
professional. This chart submitted by the resolution professional F
specifies the amount of INR 2.47 crore (added after the NCLT
judgment dated 08.03.2019), which is in addition to the amount
of INR 124.88 crores already admitted by the resolution
professional. Therefore, the NCLAT erred in noting INR 2.47
crore amount as the amount of the Appellant’s claim, and that
part of the judgment is set aside. Thus, the claim of the appellant G
shall be the claim as admitted and registered by the resolution
professional. This apart, there is no merit in the submission of
the Appellant with respect to the sum of INR 121.72 crores as
the same has been rightly rejected by the NCLAT in view of
the fact that the said claim was filed after the completion of the H
304 SUPREME COURT REPORTS [2019] 16 S.C.R.

A CIRP period. However, the NCLAT’s judgment inasmuch as it
left it open for the Appellant to pursue the matter in terms of
Section 60(6) of the Code is set aside in terms of this judgment.
[Para 98] [421-C-F]
10.12 As regards Civil Appeal No. 7266 of 2019 and 7260
B of 2019, the resolution professional has rejected the claim of the
Appellants on the ground of non-availability of duly stamped
agreements in support of their claim and the failure to furnish
proof of making payment of requisite stamp duty as per the Stamp
Act despite repeated reminders having been sent by the
C resolution professional. The application filed by the Appellants
before the NCLT came to be dismissed on the ground of non-
prosecution. The subsequent restoration application filed by the
appellants then came to be rejected by the NCLT on two
grounds: one, that the applications could not be entertained at
such a belated stage; and two, that notwithstanding the
D aforementioned reason, the claim had no merit in view of the
failure to produce duly stamped agreements. The impugned
NCLAT judgment, upheld the finding of the NCLT and the
resolution professional. In view of these concurrent findings, the
claim of the Appellants therefore requires no interference.
E Further, the submission of the Appellants that they have now
paid the requisite stamp duty, after the impugned NCLAT
judgment, would not assist the case of the Appellants at this
belated stage. [Para 99] [421-G-H; 422-A-C]
10.13 As regards Writ Petition (Civil) No. 1064 of 2019,
F there is force in the submission of the writ petitioner that the
NCLAT wrongly noted that the claim amount was notionally
admitted by the resolution professional at INR 1 only. The
resolution professional has admitted the claim of the Writ
Petitioner to a tune of INR 17.09 crore and the same is recorded
G in the list of creditors prepared by the resolution professional.
In view of the same, this part of the NCLAT judgment is thus
erroneous and the claim shall be the claim as admitted and
registered by the resolution professional. [Para 100] [422-D-E]
10.14 As regards Writ Petition (Civil) No. 1049 of 2019,
H the Petitioner is admittedly the operational creditor of one Wind
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 305
v. SATISH KUMAR GUPTA

World India Ltd whose CIRP proceedings are pending before A
the NCLT, Ahmedabad. The Petitioner has inter alia sought for
permission to raise various issues arising out of the facts of its
own case in the matter pending before the NCLT. In view of the
fact that this judgment has not opined on the merits of the case
of the Writ Petitioner pending before the NCLT, it is open to
B
the Writ Petitioner to raise all contentions as permissible under
the applicable law before the NCLT in the pending proceedings.
[Para 101] [422-F-H]
10.15 So far as Dakshin Gujarat Vij Co. (Respondent No.
11 in Civil Appeal Diary No. 24417 of 2019), State Tax Officer
C
(Respondent No. 12 in Civil Appeal Diary No. 24417 of 2019),
Gujarat Energy Transmission Corporation Ltd. (Respondent No.
17 in Civil Appeal Diary No. 24417 of 2019) and Indian Oil
Corporation Ltd. (Respondent No. 18 in Civil Appeal Diary No.
24417 of 2019) are concerned, the resolution professional
admitted the claim of the abovementioned respondents notionally D
at INR 1 on the ground that there were disputes pending before
various authorities in respect of the said amounts. However, the
NCLT through its judgment dated 08.03.2019 directed the
resolution professional to register the entire claim of the said
respondents. The NCLAT upheld the order passed by the NCLT
E
as aforesaid and admitted the claim of the respondents. Thus,
this part of the impugned judgment is set aside on the ground
that the resolution professional was correct in only admitting the
claim at a notional value of INR 1 due to the pendency of
disputes with regard to these claims. [Para 102] [423-A-D]
10.16 The CIRP of the corporate debtor will take place in F
accordance with the resolution plan of ArcelorMittal dated
23.10.2018, as amended and accepted by the Committee of
Creditors on 27.03.2019, as it has provided for amounts to be
paid to different classes of creditors by following Section 30(2)
and Regulation 38 of the Code. [Para 103] [423-F] G
State Bank of India v. Orissa Manganese and Minerals
Ltd. CA(IB)No. 391/KB/2018 – referred to.
Case Law Reference
[2018] 12 SCR 362 relied on Para 27, 82 H
306 SUPREME COURT REPORTS [2019] 16 S.C.R.

A [2019] 3 SCR 535 referred to Para 57, 82
[2017] 8 SCR 33 relied on Para 41
[2017] 13 SCR 751 relied on Para 41
[1996] 6 Suppl. SCR 1 referred to Para 58
B [1955] 2 SCR 1331 referred to Para 61
[1997] 3 SCR 1131 referred to Para 61
(2018) 9 SCALE 597 relied on Para 67
[1954] SCR 1 referred to Para 73
C [1978] 1 SCR 338 referred to Para 73
[2016] 11 SCR 419 referred to Para 75, 79
[1982] 1 SCR 629 referred to Para 77
[1994] 3 Suppl. SCR 40 referred to Para 77
D [1988] 2 Suppl. SCR 528 referred to Para 79
[2013] 12 SCR 674 referred to Para 79
[2017] 4 SCR 881 referred to Para 79
AIR 1941 FC 5 relied on Para 82
E [2003] 3 SCR 762 relied on Para 82
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8766-
8767 of 2019.
From the Judgment and Order dated 04.07.2019 of the National
Company Law Appellate Tribunal, New Delhi in Company Appeal (AT)
F (Insolvency) No. 257 of 2019 and Company Appeal (AT) (Insolvency)
No. 265 of 2019.
With
Civil Appeal Nos. 5634-5635, 5636-5637, 5716-5719, 5996, 6266,
G 6269, 6409, 6433-6434, 8768, 7266, 7260, 8769 9f 2019, Writ Petition
(Civil ) Nos. 1055, 1064, 1049, 1050, 1057, 1058, 1061, 1060, 1056, 1063,
1066, 1087, 1110, 1113, 1121, 1246, 1296 of 2019.
K.K. Venugopal, Attorney General for India, Tushar Mehta, SG,
Ms. Madhavi Divan, ASG, P.K. Jani, AAG, Rakesh Dwivedi, Gopal
Subramanium, Shyam Divan, Harish N. Salve, Neeraj Kishan Kaul,
H
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 307
v. SATISH KUMAR GUPTA

Salman Khurshid, Parag Tripathi, Nikhil Nayyar, Harin P. Raval, M.G. A
Ramachandran, C.U. Singh, Ranjit Kumar, Kapil Sibal, Arvind Datar,
Ramji Srinivasan, Nakul Diwan, Sr. Advs., Ms. Chinmayee Chandra,
Arvind Kr. Sharma, Aniruddha P. Mayee, A.R. Rajarajan, Sanjeev Kr.
Choudhary, Sapan Gupta, Manu Nair, Ms. Misha, Siddhant Kant,
Ms. Mrida Lakhmani, Ms. Jasveen Kaur, Ms. Moushmi Mehta,
B
Ms. Moulshree Shukla, Ekalavya Dwivedi, S.S. Shroff, Ms. Anannya
Ghosh, Hitesh Malik, Pawan Bhushan, Dushyant Manocha, Hitesh Saini,
Ms. Ujjwala P., Ms. Anindita Mitra, Ms. Ruby Singh Ahuja, Sudhir
Sharma, Vishal Gehrana, Anupam Prakash, Utkarsh Maria, Abhishek
Swaroop, Ms. Misha Chandna, Deepak Joshi, Avishkar Singhvi, Amit
Bhandari, Naman Bagga (for M/s. Karanjawala & Co.), Dhruv Malik, C
Ashish Mukhi, Kamlendra Singh, Laltaksh Joshi, Ms. Madhurima
Sarangi, Zafar Khurshid, Vikram Aditya Singh, Ms. Mitali Chauhan (for
M/s. Juris Corp.), Ashu Kansal, Ms. Stuti Vats, Ms. Sneha Kohli,
Ms. Niharika Ahluwalia, Alok Dhir, Ms. Varsha Banerjee, T.V.S.
Raghavendra Sreyas, Nipun Saxena, Ms. Sukanya Singh, Mrs. Shally
D
Bhasin, Shubham Kulshreshtha, Kartikey Kanojiya, Mrs. Hemantika
Wahi, Ms. Ranjitha Ramachandran, Ms. Jesal Wahi, Ms. Puja Singh,
Anand Varma, Dhairya Madan, Shwetank Singh, Ms. Vanshika Singh,
Arvind Kumar Gupta, Ms. Purti Marwaha Gupta, Ms. Twisha, Ms. V.S.
Lakshmi, A. Venayagam Balan, Vikas Mehta, Vasanth Bharani, Adith
Nair, Arjun Asthana, Ms. Shivani Kachwaha, Ms. S. Ghosh, Ms. Ujjaini E
Chatterjee, Sidhartha Sharma, Ms. Anshula Vijay Kumar Grover, Dhaval
Mehrotra, Sudhanshu Sikka (for M/s. K Ashar & Co.), Zainab Bharmal,
Kristy Baptist, E. C. Agrawala, Sandeep Singhi, Gaurav Mathur,
Ms. Anushree Prashit Kapadia, Abhishek Shah, Sudarsh Menon,
Samarendra B., Ram Gupta, Ms. Neha Naik, P.S. Sudheer, Rishi
F
Maheshwari, Ms. Anne Mathew, Bharat Sood, Ms. Shruti Jose,
Dhananjay Kumar, Raunak Dhillon, Ms. Ananya Dhar Choudhury, Ms.
Ishmeet Kaur, Ms. Sylona Mohapatra (for M/s. Cyril Amarchand
Mangaldas), Soumya Dutta, Pradeep Misra, Manoj Kumar Sharma,
Daleep Dhyani, Suraj Singh, Ms. Pallavi Pratap, Ms. Neema (for M/s
Pratap and Co.), Rajat Navet, Manish K. Bishnoi, Ms. Mehak Bakshi, G
Ajay Bhargava, Mrs. Vanita Bhargava, Mrs. Wamika Trehan,
Ms. Vansha Sethi Suneja, Gaurav Juneja, Aditya Ganju, Ms. Priyanka
Malhotra (for Khaitan & Co.), Ms. Garima Bajaj, Satendra K. Rai,
Chandra Prakash, Akshay Girish Ringe, Ms. Megha Mukerjee,
M/s. D.S.K. Legal, Vipin Kumar Jai, Advs. for the appearing parties.
H
308 SUPREME COURT REPORTS [2019] 16 S.C.R.

A The Judgment of the Court was delivered by

R. F. NARIMAN, J.

Delay Condoned in Civil Appeal Diary No. 31409 of 2019 and
Civil Appeal Diary No. 36838 of 2019. I.A. No. 102638 of 2019 in Civil
B Appeal Diary No. 24417 of 2019 for Permission to File Appeal allowed.
Appeal Admitted.

1. This group of appeals and writ petitions raises important
questions as to the role of resolution applicants, resolution professionals,
the Committee of Creditors that are constituted under the Insolvency
C and Bankruptcy Code, 2016 (hereinafter referred to as “the Code”),
and last, but by no means the least, the jurisdiction of the National
Company Law Tribunal (hereinafter referred to as “NCLT”/
”Adjudicating Authority”) and the National Company Law Appellate
Tribunal (hereinafter referred to as “NCLAT”/”Appellate Tribunal”),
D qua resolution plans that have been approved by the Committee of
Creditors. The constitutional validity of Sections 4 and 6 of the
Insolvency and Bankruptcy Code (Amendment) Act, 2019 (hereinafter
referred to as the “Amending Act of 2019”) have also been challenged.
These appeals and writ petitions are an aftermath of this Court’s
E judgment dated 04.10.2018, reported as ArcelorMittal India Private
Limited v. Satish Kumar Gupta (2019) 2 SCC 1.
2. On 02.08.2017, the NCLT, Ahmedabad admitted Company
Petition (I.B.) No. 39 of 2017 filed by Standard Chartered Bank together
with a Petition filed by the State Bank of India under Section 7 of the
F Code. One Satish Kumar Gupta was appointed as the interim resolution
professional, who was later confirmed as resolution professional. On
06.10.2017, the resolution professional by way of an advertisement in
the Economic Times, invited expressions of interest from all interested
resolution applicants to present resolution plans for rehabilitating the
corporate debtor, namely, Essar Steel India Limited. On 24.12.2017, the
G resolution professional issued a request for proposal (hereinafter referred
to as “RFP”), inter alia, inviting resolution plans for the aforesaid
corporate debtor, which was later amended on 08.02.2018. Two
resolution plans were submitted on 12.02.2018, one by ArcelorMittal
India Private Limited (hereinafter referred to as “ArcelorMittal”) and
H another by Numetal Limited (hereinafter referred to as “Numetal”) both
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 309
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

of which were found to be ineligible under Section 29-A of the Code. A
On 02.04.2018, resolution plans were then submitted by ArcelorMittal,
Numetal and one Vedanta Limited (hereinafter referred to as
“Vedanta”). The resolution plan of ArcelorMittal specifically provided
for an upfront payment of INR 35,000 crores in order to resolve debts
amounting to INR 49,213 crores. It was stated that unsecured financial
B
creditors shall be paid an aggregate amount of 5% of their admitted
claims. Apart from the above, INR 8,000 crores of fresh capital infusion
by way of capex and working capital was also to be infused. INR 3,339
crores - being the aggregate admitted claims of operational creditors,
other than workmen and employees, was to be paid to the extent of
INR 196 crores, but only to trade creditors and government creditors. C
Small trade creditors, defined as “having claims of less than one crore”
were to be honoured in full, as was the claim of workmen and
employees of the corporate debtor, amounting to INR 18 crores.
Importantly, the resolution applicant empowered the Committee of
Creditors to decide the manner in which the financial package being
D
offered would be distributed among the secured financial creditors.
Standard Chartered Bank, which was stated to be an unsecured creditor,
was to be paid an aggregate amount of 5% of its admitted claims. On
19.04.2018, the Adjudicating Authority directed the Committee of
Creditors of the corporate debtor, which by then had been set up by
the interim resolution professional, to consider the eligibility of the E
aforesaid resolution applicants.
3. On 10.09.2018, Standard Chartered Bank was classified as a
secured financial creditor of the corporate debtor by the resolution
professional. On 04.10.2018, this Court declared both ArcelorMittal and
Numetal ineligible by virtue of their resolution plans being hit by Section F
29-A of the Code. However, an order was passed under Article 142
of the Constitution, stating that one more opportunity be granted to both
ArcelorMittal and Numetal to pay off the NPAs of their related
corporate debtors within two weeks of the Supreme Court judgment,
failing which the corporate debtor would go into liquidation. On
18.10.2018, ArcelorMittal informed the resolution professional and the G
Committee of Creditors that it had made payments as per the Supreme
Court’s judgment dated 04.10.2018. However, Numetal did not make
any such payment. As a result, on 19.10.2018, ArcelorMittal resubmitted
its resolution plan of 02.04.2018, which was then evaluated by the
Committee of Creditors on the same date - ArcelorMittal being declared H
310 SUPREME COURT REPORTS [2019] 16 S.C.R.

A as the highest evaluated resolution applicant vis-a-vis Vedanta. On
25.10.2018, the final negotiated resolution plan of ArcelorMittal was
approved by the Committee of Creditors by a 92.24% majority. After
several proceedings before the NCLT and the NCLAT, the NCLT, by
its judgment dated 08.03.2019 disposed of the application to allow the
resolution plan filed by ArcelorMittal as follows:
B
“…we are of the view that the dues of the operational creditors
must get at least similar treatment as compared to the dues of
the financial creditors on the principle of equity and fair play as
well as the Wednesbury Principle of Unreasonableness and the
Doctrine of Proportionality, so as to avoid disparity in making
C payments to the operational creditors having debt value of Rs.1
crore and above (a token of Re.1) and the allegation of
discriminatory practice could be ruled out…Hence, in our view,
if a reasonable formula for apportionment is worked out so that
85% of the amount offered by the resolution applicant is
D distributed among the financial creditors and the remaining 15%
of the amount is distributed amongst the rest of the operational
creditors, then the entire claim of the operational creditors, which
comes to around Rs.4700 crore can be substantially paid off or
at least the operational creditors can get 50% of their admitted
and undisputed claim in the light of the judgment of the Hon’ble
E Supreme Court in Chitra Sharma v. Union of India (supra).
Such object can be achieved, if the financial creditor and the
members of the CoC are willing to sacrifice the interest
component on their principal loan, because it is established position
in the record that the principal loan liability of the corporate
F debtor company comes to around Rs.35,000 crore in the year
2017 when these IB Petitions were admitted, which includes the
interest component also and by giving such hair-cut to the interest
component to the extent possible by providing provision for 15%
amount for the other operational creditors and stakeholders, we
are of the view that debts of the entire operational creditors can
G be satisfied in a reasonable and fair manner and then such I.A.s
preferred by the operational creditors would also become
infructuous and this Adjudicating Authority would not be required
to deal with the merits of each and every I.A. Thus, this would
be beneficial to avoid multiplicity of legal proceedings and to
H remove any impediment for effective implementation of the
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 311
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

resolution plan and to achieve the main theme and object of the A
present I & B Code.”
4. By an interim order dated 20.03.2019 in the appeals that were
filed before NCLAT, the NCLAT directed the Committee of Creditors
to take a decision on certain suggestions that were made. Pursuant to
this, on 27.03.2019 the Committee of Creditors decided - voting having B
concluded on 30.03.2019 - to appeal against the NCLAT’s order, and,
by a majority of 70.73% approved making an ex gratia payment of
INR 1,000 crores to operational creditors above INR 1 crore. Appeals
filed against the interlocutory orders of the NCLAT were then heard
by this Court, which by its order dated 12.04.2019, inter alia, directed
non-implementation of the judgment dated 08.03.2019 of the NCLT and C
expeditious disposal of the appeal before the NCLAT.
5. By its final judgment dated 04.07.2019, the NCLAT held that:
(i) In a resolution plan there can be no difference between
a financial creditor and an operational creditor in the
D
matter of payment of dues, and that therefore, financial
creditors and operational creditors deserve equal
treatment under a resolution plan. Accordingly, the
NCLAT has re-distributed the proceeds payable under
the approved resolution plan as per the method of
calculation adopted by it so that all financial creditors E
and operational creditors be paid 60.7% of their admitted
claims;
(ii) Securities and security interest is irrelevant at the stage
of resolution for the purposes of allocation of payments,
thereby directing that each financial creditor (whether F
secured or unsecured) with a claim equal to or more
than INR 10 lakhs be paid 60.7% of its admitted claim
irrespective of their security interest;
(iii) Operational creditors by definition have separate classes
within themselves and can be classified into sub-classes G
for the purpose of distribution (while rejecting any
classification amongst the financial creditors) on the
basis of the admitted amounts thereby directing that
operational creditors with a claim of equal to or more
than INR 1 crore be paid 60.268% of their admitted
claims. H
312 SUPREME COURT REPORTS [2019] 16 S.C.R.

A (iv) Certain additional claims of operational creditors (some
of which were highly belated and/or without sufficient
proof) were admitted, such that the admitted operational
debt of approximately INR 5,058 crores at the time of
the approval of the approved resolution plan became an
operational debt of approximately INR 19,719.20 crores.
B
(v) The profits generated by the corporate debtor during the
Corporate Insolvency Resolution Process (hereinafter
referred to as the “CIRP”) would be distributed equally
amongst the financial creditors and operational creditors
of the corporate debtor.
C
(vi) A sub-committee or core committee cannot be
constituted under the Code, being a foreigner thereto.
The Committee of Creditors alone are to take all
decisions by themselves.
(vii) The Committee of Creditors has not been empowered
D
to decide the manner in which the distribution is to be
made between one or other creditors, as there would
be a conflict of interest between financial and operational
creditors, financial creditors favouring themselves to the
detriment of operational creditors.
E (viii) Section 53 of the Code cannot be applied during the
corporate resolution process but will apply only at the
stage of liquidation.
(ix) Claims that have been decided by the resolution
professional and affirmed by the Adjudicating Authority
F or the Appellate Tribunal are final and binding on all
creditors. However, claims which have not been decided
by the Adjudicating Authority or the Appellate Tribunal
on merits may be decided by an appropriate forum in
terms of Section 60(6) of the Code.
G (x) Financial Creditors in whose favour guarantees were
executed, as their total claim stands satisfied to the
extent of the guarantee, cannot re-agitate such claims
as against the principal borrower.
6. We have heard detailed arguments made by Shri Gopal
H Subramanium and Shri Rakesh Dwivedi, learned senior counsel, on
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 313
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

behalf of the Committee of Creditors of Essar Steel India Limited. They A
have argued that the provisions of the Code provide for a broad
classification of creditors as financial creditors and operational creditors
on the basis of the nature of the transaction between creditors and a
corporate debtor. They have further argued that the Code does not
mandate identical treatment of differently situated creditors either inter B
se within financial creditors, who may be secured or unsecured, and/
or financial creditors vis-a-vis operational creditors. The Code only
posits equitable treatment of different classes of creditors recognising
that different classes deserve differential treatment. According to them,
financial creditors as a class have a superior status as against
operational creditors, the same being the case with secured creditors C
vis-a-vis unsecured creditors. For this purpose, they relied upon certain
provisions of the Code. They further argued that the general law of
the land as contained in Section 48 of the Transfer of the Property Act,
1882 and Section 77 of the Companies Act, 2013 would not have been
taken away sub-silentio by the Code and have relied upon a large D
number of authorities for this purpose. They also referred to and relied
upon the UNCITRAL Legislative Guide on Insolvency Law (hereinafter
referred to as the “UNCITRAL Legislative Guide”), which was referred
to by this Court in Swiss Ribbons Private Limited v. Union of India
(2019) 4 SCC 17, and upon a report by the International Monetary Fund
titled “Orderly and Effective Insolvency Procedures – Key Issues”. E
They also referred to and relied upon judgments under Article 14 of
the Constitution of India which highlight the fact that classification is
permissible so as to differentiate persons who are unequal, who cannot
then be treated equally. They also argued, relying strongly upon the IMF
paper on “Development of Standards for Security Interest” by Pascale F
De Boeck and Thomas Laryea, in addition to several expert reports,
that classification of creditors based on the nature of the debt and/or
security interest is a sine qua non for any Insolvency Code. They
argued that if secured financial creditors are to be treated at par with
unsecured creditors, such secured creditors would rather vote for
G
liquidation rather than Corporate Resolution, contrary to the main
objective sought to be achieved by the Code. They then argued that
the health of the financial sector is critical for the overall health and
growth of the economy, which would otherwise be subverted, if the
impugned judgment were to be given effect. They relied strongly upon
paragraphs 27 and 28 of Swiss Ribbons (supra), in particular, which H
314 SUPREME COURT REPORTS [2019] 16 S.C.R.

A differentiated between secured and unsecured creditors, most financial
creditors being secured creditors and most operational creditors being
unsecured. They also argued that the law laid down in K. Sashidhar
v. Indian Overseas Bank 2019 SCCOnline SC 257, had made it clear
that there is a judicial hands-off when it comes to the commercial
B wisdom of the Committee of Creditors, which has been directly infracted
by the impugned judgment, which has held that the Committee of
Creditors has nothing to do with the distribution of amounts which are
infused by the resolution applicant for payment of the corporate debtor’s
erstwhile debts. They relied heavily upon the Bankruptcy Law Reforms
Committee Report, 2015 (hereinafter referred to as the “BLRC
C Report”) to buttress this submission, as well as the UNCITRAL
Legislative Guide. They then submitted that a resolution plan is a consent-
based plan proposed by the resolution applicant for a corporate debtor.
The counterparty to such a plan is the Committee of Creditors, which
is required to give a minimum consent of 66% voting share, which
D consent then becomes the basis for the Adjudicating Authority to
approve a resolution plan for the corporate debtor. Once approved by
the Adjudicating Authority, such plan becomes binding on all stakeholders
as is mentioned by Section 31 of the Code. Therefore, any modification,
as has been done by the NCLAT, of such plan is illegal. They then
argued that the Committee of Creditors has both the power and the
E jurisdiction to deal with all commercial aspects of a resolution plan,
including distribution of proceeds under such plan, and also referred to
and relied upon the recent amendments made to Section 30 of the Code.
They stated that the ArcelorMittal plan, as amended, looked after all
stakeholders including operational creditors, and stated that a staggering
F amount of INR 55,000 crores qua operational creditors was paid during
the 600 odd days of CIRP being carried out, operational creditors whose
claims were above INR 1 crore, now being paid approximately 20%
of their admitted dues. They also highlighted the fact that the secured
creditors have lost about INR 17,000 crores of interest in the last three
years due to the account of the corporate debtor having been classified
G
as NPA. They then argued that the setting up of a sub-committee by
the Committee of Creditors is permissible under the Code, and referred
to certain judgments to buttress this proposition. They further argued
that no decision-making power was delegated to the sub-committee,
nor did the sub-committee at any time decide or even recommend on
H distribution of amounts. They then argued that the NCLAT admitted
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 315
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

various rejected/disputed/estimated claims worth INR 13,767 crores, A
which was more than the amount originally claimed by operational
creditors. Various instances of non-application of mind were pointed
out by which claims worth INR 11,278, which were not yet crystallized,
were admitted by the NCLAT for payment, and various examples of
double payment were also given. It was also argued that the NCLAT B
erroneously permitted several disputed claims to be raised outside the
provisions of the Code after approval of the resolution plan, by referring
to and relying upon Section 60(6) of the Code, which merely saved
limitation for barred claims. They then argued that extinguishment of
the right of creditors against individual guarantees extended by the
promoters/promoter group of the corporate debtor was wholly illegal C
being contrary to several judgments of this Court and contrary to the
terms of the guarantees themselves. They further argued that the profits
that were made during the CIRP can obviously not be used for payment
of the debts of the corporate debtor, as has been ordered by the
NCLAT. Ultimately, according to the learned counsel, the impugned D
NCLAT judgment deserves to be set aside because it has curtailed the
authority of the Committee of Creditors; expanded the jurisdiction of
the Adjudicating Authority as well as the NCLAT beyond the bounds
contained in the Code; and has transgressed the most basic tenet of
the Committee of Creditors’ commercial wisdom being reflected by an
over 66% majority vote, which has been nullified by the NCLAT by E
completely modifying and substituting the resolution plan approved by
the Committee of Creditors.
7. Shri Shyam Divan, learned senior advocate appearing on behalf
of the State Bank of India, has supported the submission made on
behalf of the Committee of Creditors of Essar Steel India Limited. F
According to the learned senior advocate, whereas his client and other
secured creditors are secured to the extent of 99.66% of their
outstanding dues, the only security of Standard Chartered Bank is a
pledge of the shares held by the corporate debtor in an offshore
Mauritian subsidiary, namely Essar Steel Offshore Limited (hereinafter G
referred to as “ESOL”), and the fair value of ESOL pledged shares
has been determined at only INR 24.86 crores as against the total
outstanding admitted dues of INR 3487.10 crores (being 0.7% of the
total admitted debt of Standard Chartered Bank). Thus, according to
him, Standard Chartered Bank is an unsecured creditor to the extent
of INR 3462.14 crores, and as against a sum of INR 60.71 crores which H
316 SUPREME COURT REPORTS [2019] 16 S.C.R.

A was payable under the resolution plan as approved by the Committee
of Creditors, the NCLAT has now upped this figure to approximately
INR 2160 crores completely beyond its limited jurisdiction under the
Code. Apart from the above, he also argued that Standard Chartered
Bank is precluded from raising any challenge to the constitution of a
sub-committee as it had participated in several meetings in which it
B
raised no objection to the sub-committee, and had in fact requested to
be a part of the sub-committee. He then argued that negotiations that
were undertaken by the sub-committee was in accordance with the
mandate of the Committee of Creditors, which alone took all decisions;
the sub-committee merely being an executive arm of the Committee
C of Creditors.
8. Shri Kapil Sibal, appearing on behalf of the Standard Chartered
Bank, defended the NCLAT judgment on all aspects. According to him,
the offer made by ArcelorMittal was to make a payment of INR 42,000
crores as an upfront amount in order to pay 100% of the principal
D outstanding of the secured financial creditors of the corporate debtor.
That this sum came to be offered only as a result of an offer made by
Numetal on 07.09.2018 to pay INR 37,000 crores as upfront payment
to secured financial creditors. According to learned counsel, the sum
of INR 42,000 crores cannot be worked out unless the principal amount
owed to Standard Chartered Bank is also included in the said figure.
E
The figure of INR 42,000 crores was stated by the counsel of the
Committee of Creditors before this Hon’ble Court, in the final hearing
which took place before the judgment in ArcelorMittal India (supra),
and that this sum could be the minimum value of payment with a scope
for further negotiations. However, what ultimately turned out is a
F payment of a lesser value, namely INR 39,500 crores as upfront, INR
2,500 crores being added as an eyewash towards Guaranteed Working
Capital Adjustment. The reason this was an eyewash is because Odisha
Slurry Pipeline Infrastructure Limited (hereinafter referred to as
“OSPIL”), a wholly owned subsidiary of the corporate debtor, owned
G a slurry pipeline. ArcelorMittal, in order to ensure unhindered usage of
the said slurry pipeline, agreed that it would acquire the debts of OSPIL.
In order to achieve such acquisition of the debts of OSPIL, the Core
Committee of Creditors relieved ArcelorMittal from the solemn offer
made to the Supreme Court of India to pay upfront a sum of INR 42,000
crores, and reduced from this said amount, a sum of INR 2,500 crores.
H Thus, the Core Committee’s decision, as ratified by the Committee of
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 317
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

Creditors, was to accept a sum lesser than that guaranteed as upfront A
payment by ArcelorMittal. Shri Sibal then trained his guns against the
very formation of a Core Committee/Sub-Committee, stating that it is
against the provisions of the Code, and that as originally conceived, it
was only to facilitate representation before the Adjudicating Authority,
which was over, in any case, by 31.05.2018. The Core Committee B
however went on conducting secret negotiations with ArcelorMittal by
which it buried Standard Chartered Bank’s debt almost completely. This
was done by reducing Standard Chartered Bank’s entitlement of INR
2585 crores (INR 2646 crores minus INR 61 crores), if it were to have
outstanding payments made on the basis of value of debt instead of
value of security. In any case, it was further argued that the resolution C
plan of ArcelorMittal was itself flawed in that it would be contrary to
Regulation 38(1A) of the Insolvency and Bankruptcy Board of India
(Insolvency Resolution Process for Corporate Persons) Regulations,
2016 (hereinafter referred to as the “2016 Regulations”), as it did not
deal with the interests of all stakeholders. It would also be contrary to D
the RFP that was issued on 24.12.2017, clause 4.6.1(d) of which stated
that the resolution plan should have contained a statement as to how it
would deal with the interest of all stakeholders including, but not limited
to, break up of amounts to be paid to secured financial creditors,
unsecured financial creditors and operational creditors, all of which was
left, thanks to secret negotiations with ArcelorMittal by the resolution E
plan to the Committee of Creditors. Learned counsel then argued that
under the provisions of the Code, the role of the Committee of Creditors
is limited to considering the feasibility and viability of the resolution plan,
which does not include the manner of distribution of the amount payable
by the resolution applicant to the erstwhile creditors of the corporate F
debtor. In any event, the decision of the Committee of Creditors on
the manner of distribution in the facts of this case is illegal and arbitrary,
as once a creditor is classified as a financial creditor, such creditor is
entitled to equal treatment with all other financial creditors, irrespective
of whether it is secured or unsecured. For this purpose, the learned
G
senior advocate relied upon the UNCITRAL Legislative Guide as well
as the BLRC Report, 2015. According to the learned senior advocate,
Parliament has advisedly chosen not to create different classes of
financial or operational creditors when it comes to the process of
resolution of debts; and importance is given to the value of debt, as
opposed to, the value of security which is given importance only when H
318 SUPREME COURT REPORTS [2019] 16 S.C.R.

A the liquidation process is to take place. He argued that Section 53 of
the Code would apply only during liquidation and not at the stage of
resolving insolvency as is clear from the fact that “secured creditor”
as defined by Section 3(30) of the Code is used only in Section 53 of
the Code which is contained in Chapter III entitled “Liquidation Process”
B and not at all in Chapter II of the Code which is entitled “Corporate
Insolvency Resolution Process”. In Chapter II, only financial and
operational creditors, as defined, are spoken about. In point of fact, in
the 17th meeting of the Committee of Creditors held on 09.08.2018, the
Committee of Creditors had earlier decided that the upfront payment
made shall be divided amongst financial creditors on the basis of their
C voting shares, which in turn is fixed on the basis of the debt that is
owed to each one of them. He further argued that the Committee of
Creditors could not possibly decide the manner of distribution as it would
give rise to a serious conflict of interest, as the majority may get
together to ride roughshod over the minority. He further argued that
D no categorisation can be made based on the security interest of financial
creditors, which security interest may itself vary from first charge
holders to second charge holders and then to subservient and residual
charge holders. The fact that Standard Chartered Bank has been
recognised, albeit only on 10.09.2018, as a secured financial creditor
by the resolution applicant, is not challenged by any of the other financial
E creditors. Further, the valuation of pledged shares at INR 24.86 crores
is itself a flawed evaluation, the actual value of the shares being in
excess of US $600 million.
9. Shri Sibal then took us to the Amending Act of 2019 and
Section 6 of the Amending Act of 2019 in particular, which amended
F Section 30 of the Code, shortly after the judgment of NCLAT in the
present case. This amendment was made in the Code with effect from
16.08.2019. Shri Sibal’s first argument is that the aforesaid amendment
would not apply to the facts of the present case, in as much as the
amendment made is prospective in nature. Further, even under
G Explanation 2 that has been added by the amendment, the facts of the
present case do not fall within sub-clauses (i) to (iii) of the aforesaid
Explanation. A reading of the amended Section 30(2)(b) together with
the Explanations contained therein, and the amendment of Section 30(4)
would leave nobody in any manner of doubt that the purpose of the
amendment was to get over the NCLAT judgment in order that the
H huge amount of around INR 2,100 crores, that is payable to a private
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 319
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

foreign bank namely Standard Chartered Bank, gets reduced to around A
INR 61 crores, so that nationalised banks and other entities in which
the Government has an interest may get a larger share of the pie to
the detriment of Standard Chartered Bank. The legislature has,
therefore, overstepped the separation of powers boundaries to step in
and legislatively adjudicate the facts of a particular case. Even otherwise,
B
according to learned counsel, the provision is an arbitrary exercise of
power which brings in Section 53, which is applicable only when the
corporate debtor gets liquidated, into the Corporate Resolution Process,
contrary to the original scheme of the Code. Also, Explanation 1 directly
interferes with the judicial function and cannot state that a distribution
shall be fair and equitable, which can only be decided by the Adjudicating C
Authority and not by Parliament. Also, the amendment made to Section
30(4) cannot possibly include value of security interest of a secured
creditor within the expression “feasibility and viability” which has been
done only in order that it be applied to the present case.
10. Shri Arvind Datar supplemented the arguments of Shri Sibal D
and also appeared on behalf of the Standard Chartered Bank. He argued
that the loan by Standard Chartered Bank to the wholly owned subsidiary
of the corporate debtor is also a loan towards the project asset of the
corporate debtor and that the State Bank of India was fully aware of
such lending that was availed of by the corporate debtor. The wholly
owned subsidiary is a Special Purpose Vehicle in order to ensure E
availability of coal for the corporate debtor to cater to enhanced
production capacity.
11. He elaborated on the meaning of the expression
“modifications” contained in Regulation 39(3) of the 2016 Regulations,
arguing that the power to make modifications does not include the F
power to discriminate among creditors who are equally situated. Also,
the Committee of Creditors cannot make rankings among financial
creditors or otherwise create a class within a class. He reiterated that
the status of Standard Chartered Bank as a secured financial creditor
has not been disputed by any member of the Committee of Creditors. G
12. Shri Ranjit Kumar, learned senior advocate appearing on
behalf of Ideal Movers Limited, an operational creditor of the corporate
debtor, stated that the admitted claim by the resolution professional was
INR 178,50,51,792, and the original resolution plan contained nothing
by way of repayment to his client. It is only after the NCLT judgment H
320 SUPREME COURT REPORTS [2019] 16 S.C.R.

A when INR 1,000 crores extra was paid by ArcelorMittal for operational
creditors generally, that his client would now receive 20.5% of the
admitted claim. Of course under the NCLAT judgment, he would stand
to gain much more. He argued from a reading of the preamble of the
Code and some of its provisions that a key objective of the Code is to
ensure that the corporate debtor goes on doing its business as a going
B
concern during the CIRP as a result of which a large number of
operational creditors have to be paid their dues – such as workmen,
electricity dues, etc. It is for this reason that the CIRP has to ensure
the balancing of interest of all stake holders which can only be achieved
by a feasible and viable resolution plan which is capable of effective
C implementation. He, therefore, argued that the process of revival and
the process of liquidation are distinct and separate and have been so
treated by the Code. This being so, priorities of payment which apply
in liquidation obviously cannot apply when the corporate debtor is being
run as a going concern as otherwise secured creditors alone will be
paid and not operational creditors who are necessary for the running
D
of the business. This stems from the fact that the insolvency resolution
process is to maximise the value of assets of corporate debtors whereas
the liquidation process is to recover outstanding dues by selling the assets
of the corporate debtor. He relied strongly on certain observations in
Swiss Ribbons (supra) to buttress the aforesaid proposition. He also
E argued that the UNCITRAL Legislative Guide, being a guide to
legislation, ought not to be looked at once the Code has been enacted.
He then argued, that it is obvious that the Amending Act of 2019 has
been made in a great hurry in order that the NCLAT judgment be
neutralised by law. This is clear from the fact that the NCLAT judgment
is dated 04.07.2019 and the Amending Act of 2019 was passed only
F
one month later i.e. on 06.08.2019. No Standing Committee was
consulted, as was the case of all previous amendments made to the
Code, resulting in completely arbitrary provisions being inserted. He
trained his guns against Section 4 of the Amending Act of 2019, arguing
that timelines cannot be imposed or stipulated for the adjudication of
G disputes by any court, least of all the Supreme Court of India. The period
of time taken in court proceedings cannot possibly be included within a
timeframe as it would then nullify the role of the Adjudicating Authority
and the Appellate Tribunal, and would defeat the primary object and
purpose of the Code, which is resolution rather than liquidation.
H
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 321
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

13. Shri Harin P. Raval, learned senior advocate appearing on A
behalf of Kamaljit Singh Ahluwalia in Writ Petition (Civil) No.1058 of
2019 also assailed the Amending Act of 2019. Apart from the arguments
made by Shri Sibal and Shri Ranjit Kumar, he also argued that the
amendments made in Section 30 would be contrary to the rationale and
design of the BLRC Report, 2015. He also added that the Amending
B
Act of 2019, insofar as it applied retrospectively, would be
constitutionally infirm as it cannot be said that the amendments made
thereto are in any manner clarificatory but are new substantive
amendments.
14. Shri A.K. Gupta, learned advocate appearing for L&T
Infrastructure Finance Co. Limited in Civil Appeal No.6409 of 2019, C
assailed the classification of his client as an operational creditor and
stated that, on facts, the appellant had entered into a facility agreement,
sanctioning a term loan of INR 75 crores to Essar Power Gujarat
Limited, a subsidiary of the corporate debtor. The borrower then entered
into a Promoter Obligation Agreement by which one Essar Power D
Limited undertook an obligation to arrange for cheques from the
corporate debtor. INR 62 crores of such post-dated cheques were issued
in favour of this appellant, as a result of which this appellant is also
entitled to be classified as a financial creditor and not an operational
creditor. He thus assailed the finding of the resolution professional, the
NCLT and the NCLAT on this aspect of his case. E

15. Shri Mishra, learned advocate, appeared on behalf of Dakshin
Gujarat Vij Company, in which he submitted that the NCLAT had rightly
directed that the claim of his client should be considered with all other
creditors, and prayed in the alternative that directions be issued that
his client be entitled to recover the amount claimed, subject to the F
decision of the court, from the corporate debtor as a going concern.
Similar were the submissions made by Smt. Ramachandran on behalf
of the Gujarat Energy Transmissions Corporation Limited. Shri
Maninder Singh, learned senior counsel, appeared on behalf of the State
of Gujarat and supported paragraph 196 of the NCLAT judgment by G
which his client would be paid 60.26% of Sales Tax dues. Shri Mukul
Rohatgi, learned senior advocate appearing on behalf of Mr. Prashant
Ruia supported the findings of the NCLAT, insofar as the NCLAT held
that the personal guarantees given by his client had become ineffective
H
322 SUPREME COURT REPORTS [2019] 16 S.C.R.

A in view of the payment of the debt by way of resolution to the original
lenders. Further, Shri Rohatgi also argued that the right of subrogation
and the right to be indemnified conferred on a guarantor under the Indian
Contract Act would continue to exist in the absence of a positive waiver
of such right by the said guarantor.
B 16. Shri Harish Salve, learned senior advocate appearing on
behalf of ArcelorMittal, referred to the appeal filed by the Standard
Chartered Bank, being Civil Appeal No. 6433 of 2019, and stated that
the remedy sought therein was restricted to quashing the impugned
judgment to the extent of paragraph 221 thereof which had held that
C financial creditors in whose favour guarantees were executed, could
not re-agitate their claims against the principal borrower, as their total
claim stands satisfied to the extent of the guarantee, and that therefore
all the arguments made by Shri Sibal on behalf of Standard Chartered
Bank, being outside the scope of the appeal, ought not to be considered
at all. He further argued that since most of the arguments of Shri Sibal
D would go to the validity of the resolution plan, which Shri Sibal himself
has stated that he is not assailing, should therefore be rejected on this
ground alone. He also argued that it was wholly incorrect to say that
only INR 39,500 crores would be an upfront payment. He read to us
certain documents which would show that the guaranteed upfront
E payment INR 42,000 crores which his client had committed very much
continued and that INR 2,500 crores which formed part of this figure
was allowed by the Committee of Creditors while negotiating with his
client for very good reason.
17. Shri Neeraj Kishan Kaul, learned senior counsel also
F appearing on behalf of ArcelorMittal, stressed the fact that the
importance of the insolvency resolution process is that not only is the
corporate debtor to be put back on its feet, but that the resolution
applicant whose plan is accepted must be able to start on a fresh slate.
This being the case, obviously Shri Rohatgi’s argument, that the personal
guarantees of the erstwhile promoters do not stand extinguished and
G
that, at the very least, the right of subrogation cannot be taken away,
would boomerang upon the successful resolution applicant if such right
of subrogation were to be allowed to continue. Shri Salman Khurshid
and Shri P. Tripathi, learned senior advocates appearing on behalf of
Deutsche Bank, stressed that it was important to recognise separate
H classes of creditors and reiterated the arguments made on behalf of a
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 323
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

number of their forbears as to how it is important to make a sub- A
classification among financial creditors, as also among operational
creditors, so that there may be real equality, that is, equality among
equals. Shri Vikas Mehta, learned advocate appearing on behalf of
GAIL, adverted to paragraph 84 of the impugned NCLAT judgment
and argued that the facts qua his client were wrongly stated inasmuch B
as the admitted claim figures are wrongly stated.

18. Mrs. Madhavi Divan, learned Additional Solicitor General of
India, replied to the arguments of Standard Chartered Bank and the
operational creditors as to the constitutional invalidity of Sections 4 and
6 of the Amending Act, 2019. She argued that the amendments further C
the objects sought to be achieved by the Code, which is maximisation
of value of the assets of the corporate debtor in a time-bound frame.
She pithily stated that the value of assets and the passage of time within
which insolvency resolution takes place are in inverse proportion as the
passage of time erodes the value of these assets. She pointed out the
D
previous experiments that had failed and adverted to certain judgments
to show that the failure of previous acts such as The Sick Industrial
Companies (Special Provisions) Act, 1985 (hereinafter referred to as
“SICA”) and the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 (hereinafter referred to as “Recovery of Debts
Act”) were due to enormous delays in disposal of cases. It is this E
loophole that was sought to be plugged in accordance with the original
conception for the framework of the Insolvency Code that is to be found
in the BLRC Report of 2015. She also referred to Regulation 39-C of
the 2016 Regulations and 32(e) and (f) of the Insolvency and Bankruptcy
Board of India (Liquidation Process) Regulations, 2016 (hereinafter F
referred to as “Liquidation Process Regulations”) together with
Regulation 32-A(4) of Liquidation Process Regulations, to state that a
longer period than was originally given by Section 12 of the Code is
now given so that, taking into account court proceedings, there must
now be an outer limit within which either resolution takes place or the
company goes into liquidation. The Regulations pointed out also show G
that even if the corporate debtor goes into liquidation, 90 days is given
to sell the undertaking of the corporate debtor as a going concern so
that 90 days over and above 330 days are also available to dispose of
the corporate debtor as a going concern. So far as the challenge to
Section 6 of the Amending Act of 2019 is concerned, she argued that H
324 SUPREME COURT REPORTS [2019] 16 S.C.R.

A there is a symbiotic relationship between a resolution applicant and the
Committee of Creditors, who alone are to take a commercial decision
by the requisite majority whether or not to put the corporate debtor back
on its feet. The reason for Explanation 1 to Section 30(2)(b) is that,
what is fair and equitable must be determined within the framework of
B the Code, which is the commercial wisdom of the Committee of
Creditors, subject to certain minimum guidelines to be observed. Thus,
operational creditors who were originally to be paid only a minimum
calculated on the basis of what they would be paid in the event of
liquidation of a corporate debtor, are now to be paid the higher of two
amounts, thereby raising the threshold of what is to be paid by a
C resolution applicant by way of a minimum to operational creditors, being
enhanced under the amended provision. Further, even dissentient
financial creditors are now to be paid a minimum guaranteed amount
for the first time, as 66% of the financial creditors may give a certain
class of financial creditors ‘nil’ recovery, in which case this provision
D now comes to their rescue stating that they shall not be given anything
less than the amount to be paid to such creditors in accordance with
Section 53(1) of the Code. She also argued that it is important to realise
that the mention made of Section 53 in Section 6 of the Amending Act
of 2019 is not in order that the priorities as to liquidation be apportioned
among creditors, but only in order that a minimum amount be calculated
E so as to see that operational creditors and dissentient financial creditors
get something more than what they would have got pre-amendment.
So far as the Explanation 2 of the substituted Section 30(2)(b) is
concerned, she relied upon this Court’s judgment in ArcelorMittal India
(supra) and Swiss Ribbons (supra), for the proposition that there is
F no vested right in a resolution applicant to have its plan accepted. This
being the case, and an appeal being a continuation of the proceedings,
there is nothing wrong with applying the amended law in the three cases
that have been mentioned by Explanation 2. So far as the addition to
Section 30(4) by the Amending Act of 2019 is concerned, the idea was
to get over the judgment of the Appellate Tribunal in this very case
G
stating that sub-classification among different classes of creditors may
be done by the Committee of Creditors also on the basis of the value
of the security interest of a secured creditor. She also read in copious
detail, the Rajya Sabha Debate held on 29.07.2019 in which the Hon’ble
Minister piloted this amendment. According to her, the Federation of
H Indian Chambers of Commerce and Industry (hereinafter referred to
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 325
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

as “FICCI”) gave a representation dated 17.07.2019 to the Secretary, A
Ministry of Corporate Affairs pointing out the flawed judgment of the
NCLAT in this very case and asking the Government to swiftly amend
the Code so as to reinstate the law as it originally stood, to which the
Government and Parliament responded by enacting the Amending Act
of 2019. B
19. Shri Tushar Mehta, learned Solicitor General of India, has
supplemented the submissions of the learned Additional Solicitor General
by written arguments. He has argued that it is well settled that the
legislature can always take away the basis of a judicial decision without
directly interfering with the judgment of the Court, and has cited several C
decisions to buttress this point. He also argued that Shri Sibal’s assault
on the constitutional validity of Sections 4 and 6 of the Amending Act
of 2019 on the ground that the Amendment was tailor-made to do away
with the judgment in this very matter, so that his client may walk away
without anything, is answered by the well settled principle that an Act
of the legislature cannot be attacked on the ground of improper or bad D
motive, and cited certain judgments of this Court in support of the same.
Role of the resolution professional
20. The role of the resolution professional in the revival of the
corporate debtor is stated in detail in several Sections of the Code read E
with the 2016 Regulations.
21. The ball starts rolling with the Adjudicating Authority, after
admitting an application under either Sections 7, 9 or 10, ordering that
a public announcement of the initiation of the CIRP together with calling
for the submission of claims under Section 15 shall be made – see F
Section 13(1)(b) of the Code. For this purpose, the Adjudicating
Authority appoints an interim resolution professional in the manner laid
down in Section 16 – see Section 13(1)(c) of the Code. In the public
announcement of the CIRP, under Section 15(1), information as to the
last date for submission of claims, as may be specified, is to be given;
details of the interim resolution professional, who shall be vested with G
the management of the corporate debtor and be responsible for
receiving claims, shall also be given, and the date on which the CIRP
shall close is also to be given – see Section 15(1)(c),(d) and (f) of the
Code. Under Section 17 of the Code, the management of the affairs
of the corporate debtor shall vest in the interim resolution professional, H
326 SUPREME COURT REPORTS [2019] 16 S.C.R.

A the Board of Directors of the corporate debtor standing suspended by
law. Among the important duties of the interim resolution professional
is the receiving and collating of all claims submitted by creditors and
the constitution of a Committee of Creditors – see Section 18(1)(b) and
(c) of the Code. Under Section 20 of the Code, the interim resolution
professional is to make every endeavour to protect and preserve the
B
value of the property of the corporate debtor and manage the operations
of the corporate debtor as a going concern.
22. At the first meeting of the Committee of Creditors, which
shall be held within 7 days of its constitution, the Committee, by majority
vote of not less than 66% of the voting share of financial creditors,
C must immediately resolve to appoint the interim resolution professional
as a resolution professional, or to replace the interim resolution
professional by another resolution professional – see Section 22(1) and
(2) of the Code. Under Section 23(1), the resolution professional shall
conduct the entire CIRP and manage the operations of the corporate
D debtor during the same. Importantly, all meetings of the Committee of
Creditors are to be conducted by the resolution professional, who shall
give notice of such meetings to the members of the Committee of
Creditors, the members of the suspended board of directors, and
operational creditors, provided the amount of their aggregate dues is
not less than 10% of the entire debt owed. Like the duties of the interim
E resolution professional under Section 18 of the Code, it shall be the duty
of the resolution professional to preserve and protect assets of the
corporate debtor including the continued business operations of the
corporate debtor – see Section 25(1) of the Code. For this purpose, he
is to maintain an updated list of claims; convene and attend all meetings
F of the Committee of Creditors; prepare the information memorandum
in accordance with Section 29 of the Code; invite prospective resolution
applicants; and present all resolution plans at the meetings of the
Committee of Creditors – see Section 25(2)(e) to (i) of the Code. Under
Section 29(1) of the Code, the resolution professional shall prepare an
information memorandum containing all relevant information, as may
G be specified, so that a resolution plan may then be formulated by a
prospective resolution applicant. Under Section 30 of the Code, the
resolution applicant must then submit a resolution plan to the resolution
professional, prepared on the basis of the information memorandum.
After this, the resolution professional must present to the Committee
H of Creditors, for its approval, such resolution plans which conform to
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 327
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

the conditions referred to in Section 30(2) of the Code – see Section A
30(3) of the Code. If the resolution plan is approved by the requisite
majority of the Committee of Creditors, it is then the duty of the
resolution professional to submit the resolution plan as approved by the
Committee of Creditors to the Adjudicating Authority – see Section
30(6) of the Code.
B
23. The aforesaid provisions of the Code are then fleshed out in
the 2016 Regulations. Under Chapter IV of the aforesaid Regulations,
claims by operational creditors, financial creditors, other creditors,
workmen and employees are to be submitted to the resolution
professional along with proofs thereof – see Regulations 7 to 12. C
Thereafter, under Regulation 13, the resolution professional shall verify
each claim as on the insolvency commencement date, and thereupon
maintain a list of creditors containing the names of creditors along with
the amounts claimed by them, the amounts admitted by him, and the
security interest, if any, in respect of such claims, and constantly update
D
the aforesaid list – see Regulation 13(1).
24. Chapter X of the Regulations then deals with resolution plans
that are submitted. Under Regulation 35, “fair value” as defined by
Regulation 2(hb)1 and “liquidation value” as defined by Regulation 2(k)2
shall be determined by two registered valuers appointed under E
Regulation 27, which shall be handed over the resolution professional.
25. After receipt of the resolution plans in accordance with the
Code and the Regulations, the resolution professional shall then provide
the fair value and liquidation value to every member of the Committee
of Creditors – see Regulation 35(2). Regulation 36 is important as it F
forms the basis for the submission of a resolution plan. The information
memorandum, spoken of by this regulation, must contain the following:

1
Under Regulation 2(hb), Insolvency and Bankruptcy Board of India (Insolvency
Resolution Process for Corporate Persons) Regulations, 2016 - “fair value” means
the estimated realizable value of the assets of the corporate debtor, if they were to
G
be exchanged on the insolvency commencement date between a willing buyer and a
willing seller in an arm’s length transaction, after proper marketing and where the
parties had acted knowledgeably, prudently and without compulsion
2
Id. Under Regulation 2(k) - “liquidation value” means the estimated realizable value
of the assets of the corporate debtor, if the corporate debtor were to be liquidated
on the insolvency commencement date. H
328 SUPREME COURT REPORTS [2019] 16 S.C.R.

A “(a) assets and liabilities with such description, as on the
insolvency commencement date, as are generally
necessary for ascertaining their values.
Explanation: “Description” includes the details such as
date of acquisition, cost of acquisition, remaining useful
B life, identification number, depreciation charged, book
value, and any other relevant details.
(b) the latest annual financial statements;
(c) audited financial statements of the corporate debtor for
C the last two financial years and provisional financial
statements for the current financial year made up to a
date not earlier than fourteen days from the date of the
application;
(d) a list of creditors containing the names of creditors, the
amounts claimed by them, the amount of their claims
D
admitted and the security interest, if any, in respect of
such claims;
(e) particulars of a debt due from or to the corporate debtor
with respect to related parties;
E (f) details of guarantees that have been given in relation to
the debts of the corporate debtor by other persons,
specifying which of the guarantors is a related party;
(g) the names and addresses of the members or partners
holding at least one per cent stake in the corporate
F debtor along with the size of stake;
(h) details of all material litigation and an ongoing
investigation or proceeding initiated by Government and
statutory authorities;
(i) the number of workers and employees and liabilities of
G the corporate debtor towards them;
(j) ***
(k) ***
(l) other information, which the resolution professional
H deems relevant to the committee.”
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 329
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

26. Under Regulation 36-A, the resolution professional shall then A
publish brief particulars of the invitation for expression of interest in
Form G of the Schedule. This document must also, inter alia, provide
for such basic information about the corporate debtor as may be required
by a prospective resolution applicant for its expression of interest – see
Regulation 36-A (4)(c). The resolution professional, once he receives
B
a proposed resolution plan, must then conduct due diligence based on
the material on record, in order that the prospective resolution applicant
complies with Section 25(2)(h) of the Code (which, inter alia, requires
prospective resolution applicants to fulfil such criteria as may be laid
down, having regard to the complexity and scale of operations of the
business of the corporate debtor); the provisions of Section 29-A; and C
other requirements as may be specified in the invitation for expression
of interest – see Regulation 36-A(8). Once this is done, the resolution
professional shall issue a provisional list of eligible prospective resolution
applicants to the Committee of Creditors, and after considering any
objection to their inclusion or exclusion, shall then issue the final list of
D
prospective resolution applicants to the Committee of Creditors – see
Regulation 36-A (10) to (12). Under Regulation 36-B, the resolution
professional shall issue the information memorandum, evaluation matrix,
as defined by Regulation 2(h)(a)3, and a request for resolution plan
within the time stated. Importantly, the resolution professional shall
endeavour to submit the resolution plan approved by the Committee of E
Creditors to the Adjudicating Authority, at least 15 days before the
maximum period for completion of CIRP, along with a compliance
certificate in Form H of the Schedule.
27. The detailed provisions that have been stated hereinabove
make it clear that the resolution professional is a person who is not F
only to manage the affairs of the corporate debtor as a going concern
from the stage of admission of an application under Sections 7, 9 or 10
of the Code till a resolution plan is approved by the Adjudicating
Authority, but is also a key person who is to appoint and convene
meetings of the Committee of Creditors, so that they may decide upon
resolution plans that are submitted in accordance with the detailed G

3
Under Regulation 2(ha), Insolvency and Bankruptcy Board of India (Insolvency
Resolution Process for Corporate Persons) Regulations, 2016 – (ha) - “evaluation
matrix” means such parameters to be applied and the manner of applying such
parameters, as approved by the committee, for consideration of resolution plans
for its approval H
330 SUPREME COURT REPORTS [2019] 16 S.C.R.

A information given to resolution applicants by the resolution professional.
Another very important function of the resolution professional is to
collect, collate and finally admit claims of all creditors, which must then
be examined for payment, in full or in part or not at all, by the resolution
applicant and be finally negotiated and decided by the Committee of
Creditors. In fact, in ArcelorMital India (supra), this Court referred
B
to the role of the resolution professional under the Code and the
aforesaid Regulations, making it clear that the said role is not
adjudicatory but administrative, in the following terms:
“80. However, it must not be forgotten that a Resolution
Professional is only to “examine” and “confirm” that each
C resolution plan conforms to what is provided by Section 30(2).
Under Section 25(2)(i), the Resolution Professional shall
undertake to present all resolution plans at the meetings of the
Committee of Creditors. This is followed by Section 30(3), which
states that the Resolution Professional shall present to the
D Committee of Creditors, for its approval, such resolution plans
which confirm the conditions referred to in sub-section (2). This
provision has to be read in conjunction with Section 25(2)(i), and
with the second proviso to Section 30(4), which provides that
where a resolution applicant is found to be ineligible under Section
29-A(c), the resolution applicant shall be allowed by the
E Committee of Creditors such period, not exceeding 30 days, to
make payment of overdue amounts in accordance with the
proviso to Section 29-A(c). A conspectus of all these provisions
would show that the Resolution Professional is required to
examine that the resolution plan submitted by various applicants
F is complete in all respects, before submitting it to the Committee
of Creditors. The Resolution Professional is not required to take
any decision, but merely to ensure that the resolution plans
submitted are complete in all respects before they are placed
before the Committee of Creditors, who may or may not approve
it. The fact that the Resolution Professional is also to confirm
G that a resolution plan does not contravene any of the provisions
of law for the time being in force, including Section 29-A of the
Code, only means that his prima facie opinion is to be given to
the Committee of Creditors that a law has or has not been
contravened. Section 30(2)(e) does not empower the Resolution
H Professional to “decide” whether the resolution plan does or does
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 331
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

not contravene the provisions of law. Regulation 36-A of the CIRP A
Regulations specifically provides as follows:
“36-A. (8) The resolution professional shall conduct due diligence
based on the material on record in order to satisfy that the
prospective resolution applicant complies with—
B
(a) the provisions of clause (h) of sub-section (2) of Section
25;
(b) the applicable provisions of Section 29-A, and
(c) other requirements, as specified in the invitation for
expression of interest. C
(9) The resolution professional may seek any clarification or
additional information or document from the prospective resolution
applicant for conducting due diligence under sub-regulation (8).
(10) The resolution professional shall issue a provisional list of
D
eligible prospective resolution applicants within ten days of the
last date for submission of expression of interest to the committee
and to all prospective resolution applicants who submitted the
expression of interest.
(11) Any objection to inclusion or exclusion of a prospective E
resolution applicant in the provisional list referred to in sub-
regulation (10) may be made with supporting documents within
five days from the date of issue of the provisional list.
(12) On considering the objections received under sub-regulation
(11), the resolution professional shall issue the final list of F
prospective resolution applicants within ten days of the last date
for receipt of objections, to the committee.”
81. Thus, the importance of the Resolution Professional is to
ensure that a resolution plan is complete in all respects, and to
conduct a due diligence in order to report to the Committee of G
Creditors whether or not it is in order. Even though it is not
necessary for the Resolution Professional to give reasons while
submitting a resolution plan to the Committee of Creditors, it
would be in the fitness of things if he appends the due diligence
report carried out by him with respect to each of the resolution H
332 SUPREME COURT REPORTS [2019] 16 S.C.R.

A plans under consideration, and to state briefly as to why it does
or does not conform to the law.”
Role of the prospective resolution applicant
28. The UNCITRAL Legislative Guide discusses what ought to
B be the contents of a resolution plan in an Insolvency Code in the
following terms:
“4. The plan
xxx xxx xxx
C 18. The question of what is to be included in the plan is closely
related to the procedure for approval of the plan, that is, which
creditors are required to approve the plan and the level of support
required for approval, the effect of the plan once approved, that
is, will it bind dissenting creditors and secured creditors and who
will be responsible for implementation of the plan and for ongoing
D management of the debtor, and whether or not there is a
requirement for court confirmation. Many insolvency laws include
provisions addressing the content of the reorganization plan. Some
laws address the content of the plan by reference to general
criteria, such as requirements that the reorganization plan should
E adequately and clearly disclose to all parties information regarding
both the financial condition of the debtor and the transformation
of legal rights that is being proposed in the plan, or by reference
to minimal requirements, such as that the plan must make
provision for payment of certain preferred claims. It should be
noted that a plan need not modify or otherwise affect the rights
F of every class of creditor.
19. Other laws set out more specific requirements as to what
information is required in relation to the debtor’s financial situation
and the proposals that can be included in a plan. Information on
the financial situation of the debtor could include asset and liability
G statements; cash flow statements; and information relating to the
causes or reasons for the financial situation of the debtor.
Information relating to what is proposed by the plan could include,
depending upon the objective of the plan and the circumstances
of a particular debtor, details of classes of claims; claims modified
H or affected under the plan and the treatment to be accorded to
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 333
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

each class under the plan; the continuation or rejection of A
contracts that are not fully executed; the treatment of unexpired
leases; measures and arrangements for dealing with the debtor’s
assets (e.g. transfer, liquidation or retention); the sale or other
treatment of encumbered assets; the disclosure and acceptance
procedure; the rights of disputed claims to take part in the voting
B
and provisions for disputed claims to be resolved; arrangements
concerning personnel of the debtor; remuneration of management
of the debtor; financing implementation of the plan; extension of
the maturity date or a change in the interest rate or other term
of outstanding security interests; the role to be played by the
debtor in implementation of the plan and identification of those C
to be responsible for future management of the debtor’s business;
the settlement of claims and how the amount that creditors will
receive will be more than they would have received in liquidation;
payment of interest on claims; distribution of all or any part of
the assets of the estate among those having an interest in those
D
assets; possible changes to the instrument or organic document
constituting the debtor (e.g. changes to by-laws or articles of
association) or the capital structure of the debtor or merger or
consolidation of the debtor with one or more persons; the basis
upon which the business will be able to keep trading and can be
successfully reorganized; supervision of the implementation of the E
plan; and the period of implementation of the plan, including in
some cases a statutory maximum period.
20. Rather than specifying a wide range of detailed information
to be included in a plan, it may be desirable for the insolvency
law to identify the minimum content of a plan, focusing upon the F
key objectives of the plan and procedures for implementation.
For example, the insolvency law may require the plan to detail
the classes of creditors and the treatment each is to be accorded
in the plan; the terms and conditions of the plan (such as
treatment of contracts and the ongoing role of the debtor); and
what is required for implementation of the plan (such as sale of G
assets or parts of the business, extension of maturity dates,
changes to capital structure of the business and supervision of
implementation).”
29. Under the Code, the prospective resolution applicant has a
right to receive complete information as to the corporate debtor, debts H
334 SUPREME COURT REPORTS [2019] 16 S.C.R.

A owed by it, and its activities as a going concern, prior to the admission
of an application under section 7, 9 or 10 of the Code. For this purpose,
it has a right to receive information contained in the information
memorandum as well as the evaluation matrix mentioned in Regulation
36-B. Once it evinces an expression of interest, what follows is laid
down in Regulation 36-A(7) which reads as follows:
B
“36-A. Invitation for Expression of Interest
xxx xxx xxx
(7) An expression of interest shall be unconditional and be
accompanied by-
C
(a) an undertaking by the prospective resolution applicant
that it meets the criteria specified by the committee
under clause (h) of sub-section (2) of section 25;
(b) relevant records in evidence of meeting the criteria under
D clause (a);
(c) an undertaking by the prospective resolution applicant
that it does not suffer from any ineligibility under section
29A to the extent applicable;

E (d) relevant information and records to enable an
assessment of ineligibility under clause (c);
(e) an undertaking by the prospective resolution applicant
that it shall intimate the resolution professional forthwith
if it becomes ineligible at any time during the corporate
F insolvency resolution process;
(f) an undertaking by the prospective resolution applicant
that every information and records provided in
expression of interest is true and correct and discovery
of any false information or record at any time will
G render the applicant ineligible to submit resolution plan,
forfeit any refundable deposit, and attract penal action
under the Code; and
(g) an undertaking by the prospective resolution applicant
to the effect that it shall maintain confidentiality of the
H information and shall not use such information to cause
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 335
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

an undue gain or undue loss to itself or any other person A
and comply with the requirements under sub-section (2)
of section 29"
Thereafter, the resolution plan submitted by the prospective
resolution applicant must provide for measures as may be necessary
for the insolvency resolution of the corporate debtor for maximisation B
of the value of its assets, which may include transfer or sale of assets
or part thereof, whether subject to security interests or not. The plan
may provide for either satisfaction or modification of any security
interest of a secured creditor and may also provide for reduction in the
amount payable to different classes of creditors – see Regulation 37. C
30. Accordingly, Regulation 38 then deals with the mandatory
contents of a resolution plan, making it clear that such plan must contain
a provision that the amount due to operational creditors shall be given
priority in payment over financial creditors – see Regulation 38(1). Such
plan must also include provisions as to how to deal with the interests D
of all stakeholders including financial creditors and operational creditors
of the corporate debtor – Regulation 38 (1A). It must then provide for
the term of the plan, management and control of the business of the
corporate debtor during such term, and its implementation. It must also
demonstrate that it is feasible and viable, and that the resolution E
applicant has the capability to implement the said plan. Regulation 38,
being important, is set out hereinbelow:
“38. Mandatory contents of the resolution plan
(1) The amount due to the operational creditors under a resolution
plan shall be given priority in payment over financial creditors. F

(1A) A resolution plan shall include a statement as to how it has
dealt with the interests of all stakeholders, including financial
creditors and operational creditors, of the corporate debtor.
(2) A resolution plan shall provide: G
(a) the term of the plan and its implementation schedule;
(b) the management and control of the business of the
corporate debtor during its term; and
(c) adequate means for supervising its implementation. H
336 SUPREME COURT REPORTS [2019] 16 S.C.R.

A (3) A resolution plan shall demonstrate that –
(a) it addresses the cause of default;
(b) it is feasible and viable;
(c) it has provisions for its effective implementation;
B (d) it has provisions for approvals required and the timeline
for the same; and
(e) the resolution applicant has the capability to implement
the resolution plan.”
C Role of the committee of creditors in the corporate
resolution process
31. Since it is the commercial wisdom of the Committee of
Creditors that is to decide on whether or not to rehabilitate the corporate
debtor by means of acceptance of a particular resolution plan, the
D provisions of the Code and the Regulations outline in detail the
importance of setting up of such Committee, and leaving decisions to
be made by the requisite majority of the members of the aforesaid
Committee in its discretion. Thus, Section 21(2) of the Code mandates
that the Committee of Creditors shall comprise all financial creditors
of the corporate debtor. “Financial creditors” are defined in Section 5(7)
E of the Code as meaning persons to whom a financial debt is owed and
includes a person to whom such debt has been legally assigned or
transferred. “Financial debt” is then defined in Section 5(8) of the Code
as meaning a debt along with interest, if any, which is disbursed against
the consideration for the time value of money. “Secured creditor” is
F separately defined in Section 3(30) of the Code as meaning a creditor
in favour of whom a security interest is created and “security interest”
is defined by Section 3(31) as follows:
“3. Definitions. – In this Code, unless the context otherwise
requires. –
G xxx xxx xxx
(31) “security interest” means right, title or interest or a claim to
property, created in favour of, or provided for a secured creditor
by a transaction which secures payment or performance of an
obligation and includes mortgage, charge, hypothecation,
H assignment and encumbrance or any other agreement or
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 337
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

arrangement securing payment or performance of any obligation A
of any person:
Provided that security interest shall not include a performance
guarantee;”
32. It is settled by several judgments of this Court that in order
to trigger application of the Code, a neat division has been made B
between financial creditors and operational creditors. It has also been
noticed in some of our judgments that most financial creditors are
secured creditors and most operational creditors are unsecured
creditors. The rationale for only financial creditors handling the affairs
of the corporate debtor and resolving them is for reasons that have C
been deliberated upon by the BLRC Report of 2015, which formed the
basis for the enactment of the Insolvency Code.
33. At this juncture, it is important to set out the relevant extracts
from the aforementioned report:
“2. Executive Summary D
xxx xxx xxx
The key economic question in the bankruptcy process
xxx xxx xxx
The Committee believes that there is only one correct forum for E
evaluating such possibilities, and making a decision: a creditors
committee, where all financial creditors have votes in proportion
to the magnitude of debt that they hold. In the past, laws in India
have brought arms of the government (legislature, executive or
judiciary) into this question. This has been strictly avoided by the F
Committee. The appropriate disposition of a defaulting firm is a
business decision, and only the creditors should make it.
xxx xxx xxx
5. Process for legal entities
G
xxx xxx xxx
Business decisions by a creditor committee
All decisions on matters of business will be taken by a committee
of the financial creditors. This includes evaluating proposals to
keep the entity as a going concern, including decisions about the H
338 SUPREME COURT REPORTS [2019] 16 S.C.R.

A sale of business or units, retiring or restructuring debt. The debtor
will be a non-voting member on the creditors committee, and will
be invited to all meetings. The voting of the creditors committee
will be by majority, where the majority requires more than 75
percent of the vote by weight.
B xxx xxx xxx
No prescriptions on solutions to resolve the insolvency
The choice of the solution to keep the entity as a going concern
will be voted on by the creditors committee. There are no
constraints on the proposals that the Resolution Professional can
C
present to the creditors committee. Other than the majority vote
of the creditors committee, the Resolution Professional needs to
confirm to the Adjudicator that the final solution complies with
three additional requirements. The first is that the solution must
explicitly require the repayment of any interim finance and costs
D of the insolvency resolution process will be paid in priority to other
payments. Secondly, the plan must explicitly include payment to
all creditors not on the creditors committee, within a reasonable
period after the solution is implemented. Lastly, the plan should
comply with existing laws governing the actions of the entity
while implementing the solutions.
E
xxx xxx xxx
5.3.1 Steps at the start of the IRP
4. Creation of the creditors committee
F The creditors committee will have the power to decide the final
solution by majority vote in the negotiations. The majority vote
requires more than or equal to 75 percent of the creditors
committee by weight of the total financial liabilities. The majority
vote will also involve a cram down option on any dissenting
creditors once the majority vote is obtained…The Committee
G deliberated on who should be on the creditors committee, given
the power of the creditors committee to ultimately keep the entity
as a going concern or liquidate it. The Committee reasoned that
members of the creditors committee have to be creditors both
with the capability to assess viability, as well as to be willing to
H modify terms of existing liabilities in negotiations. Typically,
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 339
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

operational creditors are neither able to decide on matters A
regarding the insolvency of the entity, nor willing to take the risk
of postponing payments for better future prospects for the entity.
The Committee concluded that, for the process to be rapid and
efficient, the Code will provide that the creditors committee
should be restricted to only the financial creditors.
B
5.3.3 Obtaining the resolution to insolvency in the IRP
The Committee is of the opinion that there should be freedom
permitted to the overall market to propose solutions on keeping
the entity as a going concern. Since the manner and the type of
possible solutions are specific to the time and environment in C
which the insolvency becomes visible, it is expected to evolve
over time, and with the development of the market. The Code
will be open to all forms of solutions for keeping the entity going
without prejudice, within the rest of the constraints of the IRP.
Therefore, how the insolvency is to be resolved will not be
prescribed in the Code. There will be no restriction in the Code D
on possible ways in which the business model of the entity, or
its financial model, or both, can be changed so as to keep the
entity as a going concern. The Code will not state that the entity
is to be revived, or the debt is to be restructured, or the entity is
to be liquidated. This decision will come from the deliberations E
of the creditors committee in response to the solutions proposed
by the market.”
(emphasis supplied)
34. The aforesaid extracts follow what is stated in the
UNCITRAL Legislative Guide which prescribes as follows: F
“2. Nature or form of a plan
3. The purpose of reorganization is to maximize the possible
eventual return to creditors, providing a better result than if the
debtor were to be liquidated and to preserve viable businesses
G
as a means of preserving jobs for employees and trade for
suppliers. With different constituents involved in reorganization
proceedings, each may have different views of how the various
objectives can best be achieved. Some creditors, such as major
customers or suppliers, may prefer continued business with the
debtor to rapid repayment of their debt. Some creditors may H
340 SUPREME COURT REPORTS [2019] 16 S.C.R.

A favour taking an equity stake in the business, while others will
not. Typically, therefore, there is a range of options from which
to select in a given case. If an insolvency law adopts a
prescriptive approach to the range of options available or
to the choice to be made in a particular case, it is likely
to be too constrictive. It is desirable that the law not restrict
B
reorganization plans to those designed only to fully rehabilitate
the debtor; prohibit debt from being written off; restrict the
amount that must eventually be paid to creditors by specifying a
minimum percentage; or prohibit exchange of debt for equity. A
non-intrusive approach that does not prescribe such
C limitations is likely to provide sufficient flexibility to allow
the most suitable of a range of possibilities to be chosen
for a particular debtor.
xxx xxx xxx

D 20. Rather than specifying a wide range of detailed
information to be included in a plan, it may be desirable
for the insolvency law to identify the minimum content of
a plan, focusing upon the key objectives of the plan and
procedures for implementation. For example, the insolvency
law may require the plan to detail the classes of creditors and
E the treatment each is to be accorded in the plan; the terms and
conditions of the plan (such as treatment of contracts and the
ongoing role of the debtor); and what is required for
implementation of the plan (such as sale of assets or parts of
the business, extension of maturity dates, changes to capital
F structure of the business and supervision of implementation).”
(emphasis supplied)
35. Section 24 of the Code deals with meetings of the Committee
of Creditors. Though voting on the approval of a resolution plan is only
with the financial creditors who form the Committee of Creditors, yet
G the resolution professional is to conduct the aforesaid meeting at which
members of the suspended board of directors may be present, together
with one representative of operational creditors, provided that the
aggregate dues owed to all operational creditors is not less than 10%
of the entire debt owed – see Sections 24(2),(3) and (4) of the Code.
H Voting shall be in accordance with the voting share assigned to each
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 341
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

financial creditor, which is based on the financial debts owed to such A
creditors – see Section 24(6) of the Code.
36. Even though it is the resolution professional who is to run
the business of the corporate debtor as a going concern during the
intermediate period, yet, such resolution professional cannot take certain
decisions relating to management of the corporate debtor without the B
prior approval of at least 66% of the votes of the Committee of
Creditors. Section 28 of the Code is important and is set out hereinbelow:
“28. Approval of committee of creditors for certain actions
(1) Notwithstanding anything contained in any other law for the
time being in force, the resolution professional, during the C
corporate insolvency resolution process, shall not take any of the
following actions without the prior approval of the committee of
creditors namely:—
(a) raise any interim finance in excess of the amount as may
be decided by the committee of creditors in their D
meeting;
(b) create any security interest over the assets of the
corporate debtor;
(c) change the capital structure of the corporate debtor,
E
including by way of issuance of additional securities,
creating a new class of securities or buying back or
redemption of issued securities in case the corporate
debtor is a company;
(d) record any change in the ownership interest of the
corporate debtor; F

(e) give instructions to financial institutions maintaining
accounts of the corporate debtor for a debit transaction
from any such accounts in excess of the amount as may
be decided by the committee of creditors in their
meeting; G
(f) undertake any related party transaction;
(g) amend any constitutional documents of the corporate
debtor;
(h) delegate its authority to any other person; H
342 SUPREME COURT REPORTS [2019] 16 S.C.R.

A (i) dispose of or permit the disposal of shares of any
shareholder of the corporate debtor or their nominees
to third parties;
(j) make any change in the management of the corporate
debtor or its subsidiary;
B
(k) transfer rights or financial debts or operational debts
under material contracts otherwise than in the ordinary
course of business;
(l) make changes in the appointment or terms of contract
of such personnel as specified by the committee of
C
creditors; or
(m) make changes in the appointment or terms of contract
of statutory auditors or internal auditors of the corporate
debtor
D (2) The resolution professional shall convene a meeting of the
committee of creditors and seek the vote of the creditors prior
to taking any of the actions under sub-section (1).
(3) No action under sub-section (1) shall be approved by the
committee of creditors unless approved by a vote of sixty-six per
E cent of the voting shares.
(4) Where any action under sub-section (1) is taken by the
resolution professional without seeking the approval of the
committee of creditors in the manner as required in this section,
such action shall be void.
F
(5) The committee of creditors may report the actions of the
resolution professional under sub-section (4) to the Board for
taking necessary actions against him under this Code.”
Thus, it is clear that since corporate resolution is ultimately in
the hands of the majority vote of the Committee of Creditors, nothing
G
can be done qua the management of the corporate debtor by the
resolution professional which impacts major decisions to be made in
the interregnum between the taking over of management of the
corporate debtor and corporate resolution by the acceptance of a
resolution plan by the requisite majority of the Committee of Creditors.
H Most importantly, under Section 30(4), the Committee of Creditors may
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 343
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

approve a resolution plan by a vote of not less than 66% of the voting A
share of the financial creditors, after considering its feasibility and
viability, and various other requirements as may be prescribed by the
Regulations.
37. Regulation 18 to 26 of the 2016 Regulations deal with
meetings to be conducted by the Committee of Creditors. The quorum B
at the meeting is fixed by Regulation 22, and the conduct of the meeting
is to take place as under Regulation 24. Voting takes place under
Regulation 25 and 26. Most importantly, Regulation 39(3) states:
“39. Approval of resolution plan
C
xxx xxx xxx
(3) The committee shall evaluate the resolution plans received
under sub-regulation (1) strictly as per the evaluation matrix to
identify the best resolution plan and may approve it with such
modifications as it deems fit D
Provided that the committee may approve any resolution plan with
such modifications as it deems fit.”
38. This Regulation fleshes out Section 30(4) of the Code, making
it clear that ultimately it is the commercial wisdom of the Committee
of Creditors which operates to approve what is deemed by a majority E
of such creditors to be the best resolution plan, which is finally accepted
after negotiation of its terms by such Committee with prospective
resolution applicants.
39. In K. Sashidhar (supra), the role of the Committee of
Creditors in the corporate resolution process was laid down by this F
Court thus:
“20. The CoC is constituted as per Section 21 of the I&B Code,
which consists of financial creditors. The term ‘financial creditor’
has been defined in Section 5(7) of the I&B Code to mean any
person to whom a financial debt is owed and includes a person G
to whom such debt has been legally assigned or transferred to.
Be it noted that the process of insolvency resolution and
liquidation concerning corporate debtors has been codified in Part
II of the I&B Code, comprising of seven Chapters. Chapter I
predicates that Part II shall apply in matters relating to the H
344 SUPREME COURT REPORTS [2019] 16 S.C.R.

A insolvency and liquidation of corporate debtor where the minimum
amount of default is Rs. 1,00,000/-. Section 5 in Chapter I is a
dictionary clause specific to Part II of the Code. Chapter II deals
with the gamut of procedure to be followed for the corporate
insolvency resolution process. For dealing with the issue on hand,
the provisions contained in Chapter II will be significant. From
B
the scheme of the provisions, it is clear that the provisions in Part
II of the Code are self-contained code, providing for the
procedure for consideration of the resolution plan by the CoC.
21. The stage at which the dispute concerning the respective
corporate debtors (KS&PIPL and IIL) had reached the
C
adjudicating authority (NCLT) is ascribable to Section 30(4) of
the I&B Code, which, at the relevant time in October 2017, read
thus:
“30(4)- The committee of creditors may approve a resolution
D plan by a vote of not less than seventy five per cent of voting
share of the financial creditors.”
22. If the CoC had approved the resolution plan by requisite
percent of voting share, then as per Section 30(6) of the I&B
Code, it is imperative for the resolution professional to submit
E the same to the adjudicating authority (NCLT). On receipt of such
a proposal, the adjudicating authority (NCLT) is required to satisfy
itself that the resolution plan as approved by CoC meets the
requirements specified in Section 30(2). No more and no less.
This is explicitly spelt out in Section 31 of the I&B Code, which
read thus (as in October 2017):
F
“31. Approval of resolution plan.-(1) If the Adjudicating
Authority is satisfied that the resolution plan as approved by the
committee of creditors under sub-section (4) of section 30 meets
the requirements as referred to in sub-section(2) of section 30,
G it shall by order approve the resolution plan which shall be binding
on the corporate debtor and its employees, members, creditors,
guarantors and other stakeholders involved in the resolution plan.
(2) Where the Adjudicating Authority is satisfied that the resolution
plan does not confirm to the requirements referred to in sub-
H section (1), it may, by an order, reject the resolution plan.
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 345
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

(3) After the order of approval under sub-section (1),- A
(a) the moratorium order passed by the Adjudicating
Authority under section 14 shall cease to have effect;
and
(b) the resolution professional shall forward all records
B
relating to the conduct of the corporate insolvency
resolution process and the resolution plan to the Board
to be recorded on its database.”
xxx xxx xxx
39. As aforesaid, upon receipt of a “rejected” resolution plan the C
adjudicating authority (NCLT) is not expected to do anything
more; but is obligated to initiate liquidation process under Section
33(1) of the I&B Code. The legislature has not endowed the
adjudicating authority (NCLT) with the jurisdiction or authority
to analyse or evaluate the commercial decision of the CoC D
muchless to enquire into the justness of the rejection of the
resolution plan by the dissenting financial creditors. From the
legislative history and the background in which the I&B Code
has been enacted, it is noticed that a completely new approach
has been adopted for speeding up the recovery of the debt due E
from the defaulting companies. In the new approach, there is a
calm period followed by a swift resolution process to be
completed within 270 days (outer limit) failing which, initiation
of liquidation process has been made inevitable and mandatory.
In the earlier regime, the corporate debtor could indefinitely
continue to enjoy the protection given under Section 22 of Sick F
Industrial Companies Act, 1985 or under other such enactments
which has now been forsaken. Besides, the commercial wisdom
of the CoC has been given paramount status without any judicial
intervention, for ensuring completion of the stated processes
within the timelines prescribed by the I&B Code. There is an G
intrinsic assumption that financial creditors are fully informed
about the viability of the corporate debtor and feasibility of the
proposed resolution plan. They act on the basis of thorough
examination of the proposed resolution plan and assessment made
by their team of experts. The opinion on the subject matter H
346 SUPREME COURT REPORTS [2019] 16 S.C.R.

A expressed by them after due deliberations in the CoC meetings
through voting, as per voting shares, is a collective business
decision. The legislature, consciously, has not provided any ground
to challenge the “commercial wisdom” of the individual financial
creditors or their collective decision before the adjudicating
B authority. That is made nonjusticiable.”
40. The importance of the majority decision of the Committee
of Creditors is then stated in Section 31(1) of the Code which is set
out as follows:
“31. Approval of resolution plan
C
(1) If the Adjudicating Authority is satisfied that the resolution
plan as approved by the committee of creditors under sub-section
(4) of section 30 meets the requirements as referred to in sub-
section (2) of section 30, it shall by order approve the resolution
plan which shall be binding on the corporate debtor and its
D
employees, members, creditors, guarantors and other stakeholders
involved in the resolution plan.”
Thus, what is left to the majority decision of the Committee of
Creditors is the “feasibility and viability” of a resolution plan, which
obviously takes into account all aspects of the plan, including the manner
E
of distribution of funds among the various classes of creditors. As an
example, take the case of a resolution plan which does not provide for
payment of electricity dues. It is certainly open to the Committee of
Creditors to suggest a modification to the prospective resolution
applicant to the effect that such dues ought to be paid in full, so that
F the carrying on of the business of the corporate debtor does not become
impossible for want of a most basic and essential element for the
carrying on of such business, namely, electricity. This may, in turn, be
accepted by the resolution applicant with a consequent modification as
to distribution of funds, payment being provided to a certain type of
operational creditor, namely, the electricity distribution company, out of
G
upfront payment offered by the proposed resolution applicant which may
also result in a consequent reduction of amounts payable to other
financial and operational creditors. What is important is that it is the
commercial wisdom of this majority of creditors which is to determine,
through negotiation with the prospective resolution applicant, as to how
H and in what manner the corporate resolution process is to take place.
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 347
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

Jurisdiction of the Adjudicating Authority and the A
Appellate Tribunal
41. As has already been seen hereinabove, it is the Adjudicating
Authority which first admits an application by a financial or operational
creditor, or by the corporate debtor itself under Section 7, 9 and 10 of
the Code. Once this is done, within the parameters fixed by the Code, B
and as expounded upon by our judgments in Innoventive Industries
Ltd. v. ICICI Bank, (2018) 1 SCC 407 and Macquarie Bank Ltd
v. Shilpi Cable Technologies Ltd. (2018) 2 SCC 674, the Adjudicating
Authority then appoints an interim resolution professional who takes
administrative decisions as to the day to day running of the corporate
C
debtor; collation of claims and their admissions; and the calling for
resolution plans in the manner stated above. After a resolution plan is
approved by the requisite majority of the Committee of Creditors, the
aforesaid plan must then pass muster of the Adjudicating Authority under
Section 31(1) of the Code. The Adjudicating Authority’s jurisdiction is
circumscribed by Section 30(2) of the Code. In this context, the decision D
of this court in K. Sashidhar (supra) is of great relevance.
42. In K. Sashidhar (supra) this Court was called upon to decide
upon the scope of judicial review by the Adjudicating Authority. This
Court set out the questions to be determined as follows:
E
“18. Having heard learned counsel for the parties, the moot
question is about the sequel of the approval of the resolution plan
by the CoC of the respective corporate debtor, namely KS&PIPL
and IIL, by a vote of less than seventy five percent of voting
share of the financial creditors; and about the correctness of the
view taken by the NCLAT that the percentage of voting share F
of the financial creditors specified in Section 30(4) of the I&B
Code is mandatory. Further, is it open to the adjudicating authority/
appellate authority to reckon any other factor (other than specified
in Sections 30(2) or 61(3) of the I&B Code as the case may
be) which, according to the resolution applicant and the
G
stakeholders supporting the resolution plan, may be relevant?
xxx xxx xxx
25. The Court, however, was not called upon to deal with the
specific issue that is being considered in the present cases namely,
the scope of judicial review by the adjudicatory authority in relation H
348 SUPREME COURT REPORTS [2019] 16 S.C.R.

A to the opinion expressed by the CoC on the proposal for approval
of the resolution plan.”
After adverting to the 2016 Regulations, the Court set out the
jurisdiction of the Adjudicating Authority as well as the Appellate
Tribunal as follows:
B
“42. Whereas, the discretion of the adjudicating authority (NCLT)
is circumscribed by Section 31 limited to scrutiny of the resolution
plan “as approved” by the requisite percent of voting share of
financial creditors. Even in that enquiry, the grounds on which
the adjudicating authority can reject the resolution plan is in
C reference to matters specified in Section 30(2), when the
resolution plan does not conform to the stated requirements.
Reverting to Section 30(2), the enquiry to be done is in respect
of whether the resolution plan provides: (i) the payment of
insolvency resolution process costs in a specified manner in
D priority to the repayment of other debts of the corporate debtor,
(ii) the repayment of the debts of operational creditors in
prescribed manner, (iii) the management of the affairs of the
corporate debtor, (iv) the implementation and supervision of the
resolution plan, (v) does not contravene any of the provisions of
the law for the time being in force, (vi) conforms to such other
E requirements as may be specified by the Board. The Board
referred to is established under Section 188 of the I&B Code.
The powers and functions of the Board have been delineated in
Section 196 of the I&B Code. None of the specified functions
of the Board, directly or indirectly, pertain to regulating the
F manner in which the financial creditors ought to or ought not to
exercise their commercial wisdom during the voting on the
resolution plan under Section 30(4) of the I&B Code. The
subjective satisfaction of the financial creditors at the time of
voting is bound to be a mixed baggage of variety of factors. To
wit, the feasibility and viability of the proposed resolution plan
G
and including their perceptions about the general capability of the
resolution applicant to translate the projected plan into a reality.
The resolution applicant may have given projections backed by
normative data but still in the opinion of the dissenting financial
creditors, it would not be free from being speculative. These
H aspects are completely within the domain of the financial
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 349
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

creditors who are called upon to vote on the resolution plan under A
Section 30(4) of the I&B Code.
43. For the same reason, even the jurisdiction of the NCLAT
being in continuation of the proceedings would be circumscribed
in that regard and more particularly on account of Section 32 of
the I&B Code, which envisages that any appeal from an order B
approving the resolution plan shall be in the manner and on the
grounds specified in Section 61(3) of the I&B Code. Section
61(3) of the I&B Code reads thus:
“61. Appeals and Appellate Authority.-(1) Notwithstanding
anything to the contrary contained under the Companies Act, 2013 C
(18 of 2013), any person aggrieved by the order of the
Adjudicating Authority under this part may prefer an appeal to
the National Company Law Appellate Tribunal.
(2) xxx xxx xxx
D
(3) An appeal against an order approving a resolution plan under
section 31 may be filed on the following grounds, namely:—
(i) the approved resolution plan is in contravention of the
provisions of any law for the time being in force;
(ii) there has been material irregularity in exercise of the E
powers by the resolution professional during the
corporate insolvency resolution period;
(iii) the debts owed to operational creditors of the corporate
debtor have not been provided for in the resolution plan
in the manner specified by the Board; F
(iv) the insolvency resolution process costs have not been
provided for repayment in priority to all other debts; or
(v) the resolution plan does not comply with any other
criteria specified by the Board.
G
xxxxxxxxx.”
44. On a bare reading of the provisions of the I&B Code, it would
appear that the remedy of appeal under Section 61(1) is against
an “order passed by the adjudicating authority (NCLT)” - which
we will assume may also pertain to recording of the fact that H
350 SUPREME COURT REPORTS [2019] 16 S.C.R.

A the proposed resolution plan has been rejected or not approved
by a vote of not less than 75% of voting share of the financial
creditors. Indubitably, the remedy of appeal including the width
of jurisdiction of the appellate authority and the grounds of appeal,
is a creature of statute. The provisions investing jurisdiction and
authority in the NCLT or NCLAT as noticed earlier, has not made
B
the commercial decision exercised by the CoC of not approving
the resolution plan or rejecting the same, justiciable. This position
is reinforced from the limited grounds specified for instituting an
appeal that too against an order “approving a resolution plan”
under Section 31. First, that the approved resolution plan is in
C contravention of the provisions of any law for the time being in
force. Second, there has been material irregularity in exercise
of powers “by the resolution professional” during the corporate
insolvency resolution period. Third, the debts owed to operational
creditors have not been provided for in the resolution plan in the
prescribed manner. Fourth, the insolvency resolution plan costs
D
have not been provided for repayment in priority to all other debts.
Fifth, the resolution plan does not comply with any other criteria
specified by the Board. Significantly, the matters or grounds -
be it under Section 30(2) or under Section 61(3) of the I&B Code
- are regarding testing the validity of the “approved” resolution
E plan by the CoC; and not for approving the resolution plan which
has been disapproved or deemed to have been rejected by the
CoC in exercise of its business decision.
45. Indubitably, the inquiry in such an appeal would be limited to
the power exercisable by the resolution professional under Section
F 30(2) of the I&B Code or, at best, by the adjudicating authority
(NCLT) under Section 31(2) read with 31(1) of the I&B Code.
No other inquiry would be permissible. Further, the jurisdiction
bestowed upon the appellate authority (NCLAT) is also expressly
circumscribed. It can examine the challenge only in relation to
G the grounds specified in Section 61(3) of the I&B Code, which
is limited to matters “other than” enquiry into the autonomy or
commercial wisdom of the dissenting financial creditors. Thus,
the prescribed authorities (NCLT/NCLAT) have been endowed
with limited jurisdiction as specified in the I&B Code and not to
act as a court of equity or exercise plenary powers.
H
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 351
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

46. In our view, neither the adjudicating authority (NCLT) nor A
the appellate authority (NCLAT) has been endowed with the
jurisdiction to reverse the commercial wisdom of the dissenting
financial creditors and that too on the specious ground that it is
only an opinion of the minority financial creditors. The fact that
substantial or majority percent of financial creditors have
accorded approval to the resolution plan would be of no avail, B
unless the approval is by a vote of not less than 75% (after
amendment of 2018 w.e.f. 06.06.2018, 66%) of voting share of
the financial creditors. To put it differently, the action of liquidation
process postulated in Chapter-III of the I&B Code, is avoidable,
only if approval of the resolution plan is by a vote of not less C
than 75% (as in October, 2017) of voting share of the financial
creditors. Conversely, the legislative intent is to uphold the opinion
or hypothesis of the minority dissenting financial creditors. That
must prevail, if it is not less than the specified percent (25% in
October, 2017; and now after the amendment w.e.f. 06.06.2018,
44%). The inevitable outcome of voting by not less than requisite D
percent of voting share of financial creditors to disapprove the
proposed resolution plan, de jure, entails in its deemed rejection.
xxx xxx xxx
49. The argument, though attractive at the first blush, but if
E
accepted, would require us to re-write the provisions of the I&B
Code. It would also result in doing violence to the legislative intent
of having consciously not stipulated that as a ground - to challenge
the commercial wisdom of the minority (dissenting) financial
creditors. Concededly, the process of resolution plan is
necessitated in respect of corporate debtors in whom their F
financial creditors have lost hope of recovery and who have
turned into non-performer or a chronic defaulter. The fact that
the concerned corporate debtor was still able to carry on its
business activities does not obligate the financial creditors to
postpone the recovery of the debt due or to prolong their losses
indefinitely. Be that as it may, the scope of enquiry and the G
grounds on which the decision of “approval” of the resolution
plan by the CoC can be interfered with by the adjudicating
authority (NCLT), has been set out in Section 31(1) read with
Section 30(2) and by the appellate tribunal (NCLAT) under
Section 32 read with Section 61(3) of the I&B Code. No
H
352 SUPREME COURT REPORTS [2019] 16 S.C.R.

A corresponding provision has been envisaged by the legislature to
empower the resolution professional, the adjudicating authority
(NCLT) or for that matter the appellate authority (NCLAT), to
reverse the “commercial decision” of the CoC muchless of the
dissenting financial creditors for not supporting the proposed
resolution plan. Whereas, from the legislative history there is
B contra indication that the commercial or business decisions of the
financial creditors are not open to any judicial review by the
adjudicating authority or the appellate authority.
51. Suffice it to observe that in the I&B Code and the regulations
framed thereunder as applicable in October 2017, there was no
C need for the dissenting financial creditors to record reasons for
disapproving or rejecting a resolution plan. Further, as
aforementioned, there is no provision in the I&B Code which
empowers the adjudicating authority (NCLT) to oversee the
justness of the approach of the dissenting financial creditors in
rejecting the proposed resolution plan or to engage in judicial
D
review thereof. Concededly, the inquiry by the resolution
professional precedes the consideration of the resolution plan by
the CoC. The resolution professional is not required to express
his opinion on matters within the domain of the financial
creditor(s), to approve or reject the resolution plan, under Section
E 30(4) of the I&B Code. At best, the Adjudicating Authority
(NCLT) may cause an enquiry into the “approved” resolution
plan on limited grounds referred to in Section 30(2) read with
Section 31(1) of the I&B Code. It cannot make any other inquiry
nor is competent to issue any direction in relation to the exercise
of commercial wisdom of the financial creditors - be it for
F approving, rejecting or abstaining, as the case may be. Even the
inquiry before the Appellate Authority (NCLAT) is limited to the
grounds under Section 61(3) of the I&B Code. It does not
postulate jurisdiction to undertake scrutiny of the justness of the
opinion expressed by financial creditors at the time of voting. To
G take any other view would enable even the minority dissenting
financial creditors to question the logic or justness of the
commercial opinion expressed by the majority of the financial
creditors albeit by requisite percent of voting share to approve
the resolution plan; and in the process authorize the adjudicating
authority to reject the approved resolution plan upon accepting
H such a challenge. That is not the scope of jurisdiction vested in
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 353
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

the adjudicating authority under Section 31 of the I&B Code A
dealing with approval of the resolution plan.”
Thus, it is clear that the limited judicial review available, which
can in no circumstance trespass upon a business decision of the majority
of the Committee of Creditors, has to be within the four corners of
Section 30(2) of the Code, insofar as the Adjudicating Authority is B
concerned, and Section 32 read with Section 61(3) of the Code, insofar
as the Appellate Tribunal is concerned, the parameters of such review
having been clearly laid down in K. Sashidhar (supra).
43. However, Shri Sibal exhorted us to hold that K. Sashidhar
(supra) missed a very vital provision of the Code which is contained in C
Section 60(5) of the Code. Section 60(5) reads as follows:
“60. Adjudicating Authority for corporate persons
xxx xxx xxx
(5) Notwithstanding anything to the contrary contained in any
other law for the time being in force, the National Company Law D
Tribunal shall have jurisdiction to entertain or dispose of—
(a) any application or proceeding by or against the corporate
debtor or corporate person;
(b) any claim made by or against the corporate debtor or E
corporate person, including claims by or against any of
its subsidiaries situated in India; and
(c) any question of priorities or any question of law or facts,
arising out of or in relation to the insolvency resolution
or liquidation proceedings of the corporate debtor or
F
corporate person under this Code.”
It will be noticed that the non-obstante clause of Section 60(5)
speaks of any other law for the time being in force, which obviously
cannot include the provisions of the Code itself. Secondly, Section
60(5)(c) is in the nature of a residuary jurisdiction vested in the NCLT
G
so that the NCLT may decide all questions of law or fact arising out
of or in relation to insolvency resolution or liquidation under the Code.
Such residual jurisdiction does not in any manner impact Section 30(2)
of the Code which circumscribes the jurisdiction of the Adjudicating
Authority when it comes to the confirmation of a resolution plan, as
has been mandated by Section 31(1) of the Code. A harmonious reading, H
354 SUPREME COURT REPORTS [2019] 16 S.C.R.

A therefore, of Section 31(1) and Section 60(5) of the Code would lead
to the result that the residual jurisdiction of the NCLT under Section
60(5)(c) cannot, in any manner, whittle down Section 31(1) of the Code,
by the investment of some discretionary or equity jurisdiction in the
Adjudicating Authority outside Section 30(2) of the Code, when it
comes to a resolution plan being adjudicated upon by the Adjudicating
B
Authority. This argument also must needs be rejected.
44. The minimum value that is required to be paid to operational
creditors under a resolution plan is set out under Section 30(2)(b) of
the Code as being the amount to be paid to such creditors in the event
of a liquidation of the corporate debtor under Section 53. The Insolvency
C Committee constituted by the Government in 2018 was tasked with
studying the major issues that arise in the working of the Code and to
recommend changes, if any, required to be made to the Code. The
Insolvency Committee Report, 2018 (hereinafter referred to as “The
Committee Report, 2018”), inter alia, deliberated upon the objections
D to Section 30(2)(b) of the Code, inasmuch as it provided for a minimum
payment of a “liquidation value” to the operational creditors and nothing
more, and concluded as follows:
“18. VALUE GUARANTEED TO OPERATIONAL
CREDITORS UNDER A RESOLUTION PLAN
E 18.1 Section 30(2)(b) of the Code requires the RP to ensure that
every resolution plan provides for payment of at least the
liquidation value to all operational creditors. Regulation 38(1)(b)
of the CIRP Regulations provides that liquidation value must be
paid to operational creditors prior in time to all financial creditors
F and within thirty days of approval of resolution plan by the NCLT.
The BLRC Report states that the guarantee of liquidation value
has been provided to operational creditors since they are not
allowed to be part of the CoC which determines the fate of the
corporate debtor. (BLRC Report, 2015)

G 18.2 However, certain public comments received by the
Committee stated that, in practice, the liquidation value which is
guaranteed to the operational creditors may be negligible as they
fall under the residual category of creditors under section 53 of
the Code. Particularly, in the case of unsecured operational
creditors, it was argued that they will have no incentive to
H continue supplying goods or services to the corporate debtor for
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it to remain a ‘going concern’ given that their chances of A
recovery are abysmally low.
18.3 The Committee deliberated on the status of operational
creditors and their role in the CIRP. It considered the viability of
using ‘fair value’ as the floor to determine the value to be given
to operational creditors. Fair value is defined under regulation B
2(1)(hb) of the CIRP Regulations to mean “the estimated
realizable value of the assets of the corporate debtor, if they were
to be exchanged on the insolvency commencement date between
a willing buyer and a willing seller in an arm’s length transaction,
after proper marketing and where the parties had acted
knowledgeably, prudently and without compulsion.” However, it C
was felt that assessment and payment of the fair value upfront,
may be difficult. The Committee also discussed the possibility
of using ‘resolution value’ or ‘bid value’ as the floor to be
guaranteed to operational creditors but neither of these were
deemed suitable. D
18.4 It was stated to the Committee that liquidation value has
been provided as a floor and in practice, many operational
creditors may get payments above this value. The Committee
appreciated the need to protect interests of operational creditors
and particularly Micro, Small and Medium Enterprises E
(“MSMEs”). In this regard, the Committee observed that in
practice most of the operational creditors that are critical to the
business of the corporate debtor are paid out as part of the
resolution plan as they have the power to choke the corporate
debtor by cutting off supplies. Illustratively, in the case of
Synergies-Dooray Automative Ltd. (Company Appeal No. 123/ F
2017, NCLT Hyderabad, Date of decision – 02 August, 2017),
the original resolution plan provided for payment to operational
creditors above the liquidation value but contemplated that it
would be made in a staggered manner after payment to financial
creditors, easing the burden of the 30-day mandate provided G
under regulation 38 of the CIRP Regulations. However, the same
was modified by the NCLT and operational creditors were
required to be paid prior in time, due to the quantum of debt and
nature of the creditors. Similarly, the approved resolution plan in
the case of Hotel Gaudavan Pvt. Ltd. (Company Appeal No.
37/2017, NCLT Principal Bench, Date of decision – 13 H
356 SUPREME COURT REPORTS [2019] 16 S.C.R.

A December, 2017) provided for payment of all existing dues of
the operational creditors without any write-off. The Committee
felt that the interests of operational creditors must be protected,
not by tinkering with what minimum must be guaranteed to them
statutorily, but by improving the quality of resolution plans overall.
This could be achieved by dedicated efforts of regulatory bodies
B
including the IBBI and Indian Banks’ Association.
18.5 Finally, the Committee agreed that presently, most of the
resolution plans are in the process of submission and there is no
empirical evidence to further the argument that operational
creditors do not receive a fair share in the resolution process
C under the current scheme of the Code. Hence, the Committee
decided to continue with the present arrangement without making
any amendments to the Code.”
(emphasis supplied)
D Ultimately, the Committee decided against any amendment to be
made to the existing scheme of the Code, thereby retaining the
prescription as to the minimum value that was to be paid to the
operational creditors under a resolution plan.
45. However, as has been correctly argued on behalf of the
E operational creditors, the preamble of the Code does speak of
maximisation of the value of assets of corporate debtors and the
balancing of the interests of all stakeholders. There is no doubt that a
key objective of the Code is to ensure that the corporate debtor keeps
operating as a going concern during the insolvency resolution process
and must therefore make past and present payments to various
F operational creditors without which such operation as a going concern
would become impossible. Sections 5(26), 14(2), 20(1), 20(2)(d) and
(e) of the Code read with Regulations 37 and 38 of the 2016 Regulations
all speak of the corporate debtor running as a going concern during
the insolvency resolution process. Workmen need to be paid, electricity
G dues need to be paid, purchase of raw materials need to be made, etc.
This is in fact reflected in this court’s judgment in Swiss Ribbons
(supra) as follows:
“26. The Preamble of the Code states as follows:
“An Act to consolidate and amend the laws relating to
H reorganisation and insolvency resolution of corporate persons,
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 357
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partnership firms and individuals in a time-bound manner for A
maximisation of value of assets of such persons, to promote
entrepreneurship, availability of credit and balance the interests
of all the stakeholders including alteration in the order of priority
of payment of government dues and to establish an Insolvency
and Bankruptcy Board of India, and for matters connected
B
therewith or incidental thereto.”
27. As is discernible, the Preamble gives an insight into what is
sought to be achieved by the Code. The Code is first and
foremost, a Code for reorganisation and insolvency resolution of
corporate debtors. Unless such reorganisation is effected in a
time-bound manner, the value of the assets of such persons will C
deplete. Therefore, maximisation of value of the assets of such
persons so that they are efficiently run as going concerns is
another very important objective of the Code. This, in turn, will
promote entrepreneurship as the persons in management of the
corporate debtor are removed and replaced by entrepreneurs. D
When, therefore, a resolution plan takes off and the corporate
debtor is brought back into the economic mainstream, it is able
to repay its debts, which, in turn, enhances the viability of credit
in the hands of banks and financial institutions. Above all,
ultimately, the interests of all stakeholders are looked after as
the corporate debtor itself becomes a beneficiary of the resolution E
scheme—workers are paid, the creditors in the long run will be
repaid in full, and shareholders/investors are able to maximise
their investment. Timely resolution of a corporate debtor who is
in the red, by an effective legal framework, would go a long way
to support the development of credit markets. Since more
F
investment can be made with funds that have come back into
the economy, business then eases up, which leads, overall, to
higher economic growth and development of the Indian economy.
What is interesting to note is that the Preamble does not, in any
manner, refer to liquidation, which is only availed of as a last
resort if there is either no resolution plan or the resolution plans G
submitted are not up to the mark. Even in liquidation, the liquidator
can sell the business of the corporate debtor as a going concern.
(See ArcelorMittal [ArcelorMittal (India) (P) Ltd. v. Satish
Kumar Gupta, (2019) 2 SCC 1] at para 83, fn 3).”
(emphasis supplied) H
358 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 46. This is the reason why Regulation 38(1A) speaks of a
resolution plan including a statement as to how it has dealt with the
interests of all stakeholders, including operational creditors of the
corporate debtor. Regulation 38(1) also states that the amount due to
operational creditors under a resolution plan shall be given priority in
B payment over financial creditors. If nothing is to be paid to operational
creditors, the minimum, being liquidation value - which in most cases
would amount to nil after secured creditors have been paid - would
certainly not balance the interest of all stakeholders or maximise the
value of assets of a corporate debtor if it becomes impossible to continue
running its business as a going concern. Thus, it is clear that when the
C Committee of Creditors exercises its commercial wisdom to arrive at
a business decision to revive the corporate debtor, it must necessarily
take into account these key features of the Code before it arrives at a
commercial decision to pay off the dues of financial and operational
creditors. There is no doubt whatsoever that the ultimate discretion of
D what to pay and how much to pay each class or sub-class of creditors
is with the Committee of Creditors, but, the decision of such Committee
must reflect the fact that it has taken into account maximising the value
of the assets of the corporate debtor and the fact that it has adequately
balanced the interests of all stakeholders including operational creditors.
This being the case, judicial review of the Adjudicating Authority that
E the resolution plan as approved by the Committee of Creditors has met
the requirements referred to in Section 30(2) would include judicial
review that is mentioned in Section 30(2)(e), as the provisions of the
Code are also provisions of law for the time being in force. Thus, while
the Adjudicating Authority cannot interfere on merits with the commercial
F decision taken by the Committee of Creditors, the limited judicial review
available is to see that the Committee of Creditors has taken into account
the fact that the corporate debtor needs to keep going as a going concern
during the insolvency resolution process; that it needs to maximise the
value of its assets; and that the interests of all stakeholders including
operational creditors has been taken care of. If the Adjudicating
G
Authority finds, on a given set of facts, that the aforesaid parameters
have not been kept in view, it may send a resolution plan back to the
Committee of Creditors to re-submit such plan after satisfying the
aforesaid parameters. The reasons given by the Committee of Creditors
while approving a resolution plan may thus be looked at by the
H Adjudicating Authority only from this point of view, and once it is
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satisfied that the Committee of Creditors has paid attention to these A
key features, it must then pass the resolution plan, other things being
equal.
Secured and unsecured creditors; the equality principle
47. The impugned NCLAT judgment has applied an equality
B
principle down the board stating that whether creditors are secured or
unsecured, financial or operational, equitable treatment demands that
they all be treated as one group of creditors similarly situate, as a result
of which no differences can be made in terms of the amount of debt
to be repaid to them based on whether they are secured or unsecured,
and whether they are financial or operational creditors. The aforesaid C
judgment relies upon certain paragraphs of this Court’s judgment in
Swiss Ribbons (supra) to buttress the aforesaid finding.
48. The UNCITRAL Legislative Guide states:-
“Designing the key objectives and structure of an effective
D
and efficient insolvency law
xxx xxx xxx
4. Ensuring equitable treatment of similarly situated creditors
7. The objective of equitable treatment is based on the notion
E
that, in collective proceedings, creditors with similar legal rights
should be treated fairly, receiving a distribution on their claim in
accordance with their relative ranking and interests. This key
objective recognizes that all creditors do not need to be treated
identically, but in a manner that reflects the different bargains
they have struck with the debtor. This is less relevant as a defining F
factor where there is no specific debt contract with the debtor,
such as in the case of damage claimants (e.g. for environmental
damage) and tax authorities. Even though the principle of
equitable treatment may be modified by social policy on priorities
and give way to the prerogatives pertaining to holders of claims
G
or interests that arise, for example, by operation of law, it retains
its significance by ensuring that the priority accorded to the claims
of a similar class affects all members of the class in the same
manner. The policy of equitable treatment permeates many
aspects of an insolvency law, including the application of the stay
or suspension, provisions to set aside acts and transactions and H
360 SUPREME COURT REPORTS [2019] 16 S.C.R.

A recapture value for the insolvency estate, classification of claims,
voting procedures in reorganization and distribution mechanisms.
An insolvency law should address problems of fraud and
favouritism that may arise in cases of financial distress by
providing, for example, that acts and transactions detrimental to
equitable treatment of creditors can be avoided.
B
xxx xxx xxx
5. Approval of a plan
xxx xxx xxx
C (i) Classification of claims
27. The primary purpose of classifying claims is to satisfy the
requirements to provide fair and equitable treatment to creditors,
treating similarly situated claims in the same manner and ensuring
that all creditors in a particular class are offered the same menu
D of terms by the reorganization plan. It is one way to ensure that
priority claims are treated in accordance with the priority
established under the insolvency law. It may also make it easier
to treat the claims of major creditors who can be persuaded to
receive different treatment from the general class of unsecured
creditors, where that treatment may be necessary to make the
E
plan feasible. Classification can, however, increase the complexity
and costs of the insolvency proceedings, depending upon how
many different classes are identified. An alternative, to ensure
that creditors who should receive special treatment are not
oppressed by the majority, may be to give those groups the
F opportunity to challenge the decision of the majority in court if
they have not been treated in a fair and equitable manner. The
fact that such a facility exists may operate to discourage
majorities from making proposals that would unfairly
disadvantage priority creditors.
G (ii) Treatment of dissenting creditors
28. As to the treatment of dissenting creditors, it will be essential
to provide a way of imposing a plan agreed by the majority of a
class upon the dissenting minority in order to increase the chances
of success of the reorganization. It may also be necessary,
H depending upon the mechanism that is chosen for voting on the
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plan and whether creditors vote in classes, to consider whether A
the plan can be made binding upon dissenting classes of creditors
and other affected parties.
29. To the extent that a plan can be approved and enforced upon
dissenting parties, there will be a need to ensure that the content
of the plan provides appropriate protection for those dissenting B
parties and, in particular, that their rights are not unfairly affected.
The law might provide, for example, that dissenting creditors can
not be bound unless assured of certain treatment. As a general
principle, that treatment might be that the creditors will receive
at least as much under the plan as they would have received in
liquidation proceedings. If the creditors are secured, the treatment C
required may be that the creditor receives payment of the value
of its security interest, while in the case of unsecured creditors
it may be that any junior interests, including equity holders, receive
nothing. To the extent that the approval procedure results in a
significant impairment of the claims of creditors and other D
affected parties without their consent (in particular secured
creditors), there is a risk that creditors will be unwilling to provide
credit in the future. The mechanism for approval of the plan, and
the availability of appropriate safeguards, is therefore of
considerable importance to the protection of these interests.
E
xxx xxx xxx
(c) Approval by secured and priority creditors
(i) The need for secured and priority creditors to vote
34. In many cases of insolvency, secured claims will represent F
a significant portion of the value of the debt owed by the debtor.
Different approaches can be taken to approval of the plan by
secured and priority creditors. As a general principle, however,
the extent to which a secured creditor is entitled to vote will
depend upon the manner in which the insolvency regime treats
secured creditors, the extent to which a reorganization plan can G
affect the security interest of the secured creditor and the extent
to which the value of encumbered assets will satisfy the secured
creditor’s claim.
35. Under one approach, where the insolvency law does not
affect secured creditors and, in particular, does not preclude them H
362 SUPREME COURT REPORTS [2019] 16 S.C.R.

A from enforcing their rights against the encumbered assets, there
is no need to give these creditors the right to vote since their
security interests will not be affected by the plan. Priority
creditors are in a similar position under this approach—the plan
cannot impair the value of their claims and they are entitled to
receive full payment before creditors without priority are paid.
B
The limitation of this approach, however, is that it may reduce
the chances for a successful reorganization where the
encumbered assets or modification of the rights of such creditors
are key to the success of the plan. If the secured creditor is not
bound by the plan, the election by the secured creditor to enforce
C its rights, such as by repossessing and selling the encumbered
asset, may make reorganization of the business impossible to
implement. Similarly, there may be circumstances where ensuring
a successful reorganization requires that priority creditors receive
less than the full value of their claims upon approval of the plan.
The prospects for reorganization may improve if priority creditors
D
will accept payment over time and if secured creditors will
acquiesce when the terms of the secured debt are modified over
time. If these creditors are not included in the plan and entitled
to vote on proposals affecting their rights, modification of those
rights cannot be achieved.
E (ii) Classes of secured and priority creditors
36. Recognizing the need for secured and priority creditors to
participate, a second approach provides for these creditors to vote
as classes separate from unsecured creditors on a plan that
would modify or affect the terms of their claims, or to otherwise
F consent to be bound by the plan. Adopting such an approach
provides a minimum safeguard for the adequate protection of
these creditors and recognizes that the respective rights and
interests of secured and priority creditors differ from those of
unsecured creditors. In many cases, however, the rights of
G secured and priority creditors will differ from each other and it
may not be feasible to require all secured creditors or all priority
creditors to vote in a single class. In such cases, some laws
provide that each secured creditor with separate rights to
encumbered assets forms a class of its own. Those laws also
provide that, where secured creditors do vote as a class (e.g.
H where there are multiple holders of bonds that are secured by
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the same assets), the requisite majority of a class of secured A
creditors would generally be the same as that required for
approval by unsecured creditors, although there are examples of
laws that require different majorities depending upon the manner
in which secured creditors rights are to be affected by the plan
(e.g. one law provides that a three-quarter majority is required
where the maturity date is to be extended and a four-fifths B
majority where the rights are to be otherwise impaired). Similarly,
each rank of priority claims would be a separate class under those
laws.
xxx xxx xxx
C
(iii) Where secured creditors are not fully secured
38. To the extent that the value of the encumbered asset will
not satisfy the full amount of the secured creditor’s claim, a
number of insolvency laws provide that those secured creditors
should vote with ordinary unsecured creditors in respect of the
unsatisfied portion of the claim. This may raise difficult questions D
of valuation in order to determine whether, and to what extent,
a secured creditor is in fact secured. For example, where three
creditors hold security interests over the same asset, the value
of that asset may only support the claim first in priority and part
of the second in priority. The second creditor therefore may have E
a right to vote only in respect of the unsecured portion of its claim,
while the third creditor will be totally unsecured. The valuation
of the asset is therefore crucial to determining the extent to which
these secured creditors are secured and whether or not they are
entitled to vote as unsecured creditors with respect to any portion
of their claim. F
39. In determining which approach should be taken to this issue,
it will be important to assess the effect of the desired approach
upon the availability and cost of secured financing and to provide
as much certainty and predictability as possible, balancing this
against the objectives of insolvency law and the benefits to an G
economy of successful reorganization.”
(emphasis supplied)
The BLRC Report, 2015 is of great help in understanding what
is meant by respecting the rights of all creditors equally.
Paragraph 3.4.2 of the said report states: H
364 SUPREME COURT REPORTS [2019] 16 S.C.R.

A “3.4.2 Principles driving the design
The Committee chose the following principles to design the new
insolvency and bankruptcy resolution framework:
IV. The Code will ensure a collective process.

B 9. The law must ensure that all key stakeholders will participate
to collectively assess viability. The law must ensure that all
creditors who have the capability and the willingness to restructure
their liabilities must be part of the negotiation process. The
liabilities of all creditors who are not part of the negotiation
process must also be met in any negotiated solution.
C V. The Code will respect the rights of all creditors equally.
10. The law must be impartial to the type of creditor in counting
their weight in the vote on the final solution in resolving
insolvency.

D VI. The Code must ensure that, when the negotiations fail to
establish viability, the outcome of bankruptcy must be binding.
11. The law must order the liquidation of an enterprise which
has been found unviable. This outcome of the negotiations should
be protected against all appeals other than for very exceptional
cases.
E
VII. The Code must ensure clarity of priority, and that the rights
of all stakeholders are upheld in resolving bankruptcy.
12. The law must clearly lay out the priority of distributions in
bankruptcy to all stakeholders. The priority must be designed so
F as to incentivise all stakeholders to participate in the cycle of
building enterprises with confidence.
13. While the law must incentivise collective action in resolving
bankruptcy, there must be a greater flexibility to allow individual
action in resolution and recovery during bankruptcy compared
G with the phase of insolvency resolution.”
(emphasis supplied)
49. That equitable treatment of creditors is equitable treatment
only within the same class is echoed in American Jurisprudence, 2d,
Volume 9 (hereinafter referred to as “American Jurisprudence”) as
H follows:
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 365
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“§ 6. Distribution A
Equality of distribution is the theme of a bankruptcy act and a
prime bankruptcy policy. The bankruptcy system is designed to
distribute an estate as equally as possible among similarly situated
creditors. Thus, creditors of equal status must be treated equally
and equitably. B
One of the conditions placed upon the debtor’s use of the
Bankruptcy Code to obtain a fresh start is that the debtor treat
all creditors fairly.
The bankruptcy process is the process by which a res, under
the constructive possession of the bankruptcy court, is C
administered for the purpose of allowing, disallowing, organizing,
and prioritizing claims of creditors in, to, and upon the res.
Although the central policy of the Bankruptcy Code is equality
of distribution among all creditors, exceptions are made by
granting priority to certain claims and subordinating others. D
Pursuant to the central policy, creditors of equal priority should
receive a pro rata share of the debtor’s property; thus, when
there is not enough to go around, the bankruptcy judge must
establish priorities and apportion assets among creditors with the
same priority.”
E
(emphasis supplied)
Shri Sibal, however, relied upon the following statements in
American Jurisprudence, which read as follows:
“Chapter 11 reorganization, specifically, has been called a
collective remedy, designed to find the optimum solution for all F
parties connected with a business – not solely for the business
itself and not solely for its creditors.
xxx xxx xxx
Protecting creditors in general is an important objective as is
protecting creditors from each other.” G
There is no doubt that even under our Code, reorganisation is a
collective remedy designed to find an optimum solution for all parties
connected with a business in the manner provided by the Code.
Protecting creditors in general is, no doubt, an important objective - the
observation that protecting creditors from each other is also important, H
366 SUPREME COURT REPORTS [2019] 16 S.C.R.

A which must be read with footnote 7 in the American Jurisprudence,
which reads as under:

“In re First Central Financial Corp., 377 F.3d 209 (2d Cir. 2004)

The Bankruptcy Code generally does not imbue creditors with
B greater rights in a bankruptcy proceeding than they would enjoy
under otherwise applicable non-bankruptcy law unless it is to
serve some bankruptcy purpose. In re Vermont Elec. Generation
& Transmission Co-op., Inc., 240 B.R. 476 (Bankr. D. Vt.
1999)”
C A reading of this footnote will show that what is meant by
protecting creditors from each other is only that a Bankruptcy Code
should not be read so as to imbue creditors with greater rights in a
bankruptcy proceeding than they would enjoy under the general law,
unless it is to serve some bankruptcy purpose.
D
50. The importance of valuing security interests separately from
interests of creditors who do not have security is well set out in the
IMF paper on Development of Standards for Security Interest by
Pascale De Boeck and Thomas Laryea, Counsel, IMF Legal
Department. The learned authors state:
E
“I. VALUE OF SECURITY INTERESTS

In developing standards for the legal framework of security
interests, it is important to recognize that security interests serve
discernable economic goals. Security interests reduce credit risk
F
by increasing the creditor’s likelihood to be repaid, not only when
payment is due, but also in the event of a default by its debtor.
This increased likelihood of repayment produces wider economic
benefits. First, the availability of credit is enhanced; borrowers
obtain credit in cases where they would have otherwise failed
G absent a security interest. Second, credit is also made available
on better terms involving, for instance, lower interest rates and
longer maturities. The relative cost of secured credit under that
of unsecured credit reflects the commercial recognition of the
advantages of secured credit in connection with the recovery of
H the debt.
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The efficiency of the legal framework for secured credit is a A
critical factor in the strengthening of financial systems. In the
face of financial sector crises, an effective legal framework of
security interests enables banks and other credit institutions to
mitigate the deterioration of their claims, it also facilitates
corporate restructuring by providing tools to support interim B
financing. In the longer term, an effective framework for security
interests fosters economic growth. Specifically, it supports access
to affordable credit, thereby facilitating the acquisition of goods.
Further, it increases the capacity of enterprises to finance
expansion fueled by the supply of credit. Also, an effective
framework for security interests can support the development C
of a sound banking system and promotion of capital markets
founded on the efficient allocation of credit and effective and
predictable mechanisms for realizing credit claims.
xxx xxx xxx
D
III. General Principles

xxx xxx xxx

• Establish clear and predictable priority rules
E
The issue of priorities between various security interest devices
and between various types of creditors is extremely complex,
largely due to the myriad of possible competing interests.
Whatever priority rules a legal framework establishes, they ought
to be clear, predictable and transparent. They need to allow
F
creditors to assess their position before creating a security
interest and to enforce their rights in case of default in a timely,
predictable and cost-efficient manner.

• Facilitate the enforcement of creditor rights

Enforcement is a critical factor in the law and functioning of G
secured credit. A security interest is of little value to a creditor
unless the creditor is able to enforce it in a predictable, efficient
and timely manner vis-à-vis the debtor and third parties. An
effective framework needs to allow quick and predictable
enforcement both within and outside insolvency proceedings.” H
368 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 51. Likewise the World Bank Report of 2015 titled Principles for
Effective Insolvency and Creditor/Debtor Regimes states:

“Claims and Claims Resolution Procedures

Treatment of Stakeholder Rights and Priorities
B
C12.1 The rights of creditors and the priorities of claims
established prior to insolvency proceedings under commercial or
other applicable laws should be upheld in an insolvency proceeding
to preserve the legitimate expectations of creditors and
encourage greater predictability in commercial relationships.
C
Deviations from this general rule should occur only where
necessary to promote other compelling policies, such as the
policy supporting reorganization, or to maximize the insolvency
estate’s value. Rules of priority should enable creditors to manage
credit efficiently, consistent with the following additional principles:
D
C12.2 The priority of secured creditors in their collateral should
be upheld and, absent the secured creditor’s consent, its interest
in the collateral should not be subordinated to other priorities
granted in the course of the insolvency proceeding. Distributions
E to secured creditors should be made as promptly as possible.

C12.3 Following distributions to secured creditors from their
collateral and the payment of claims related to the costs and
expenses of administration, proceeds available for distribution
should be distributed pari passu to the remaining general
F unsecured creditors, unless there are compelling reasons to justify
giving priority status to a particular class of claims. Public
interests generally should not be given precedence over private
rights. The number of priority classes should be kept to a
minimum.
G C12.4 Workers are a vital part of an enterprise, and careful
consideration should be given to balancing the rights of employees
with those of other creditors.”

However, Shri Sibal stated that this report should not be relied
H upon as an earlier World Bank Report of 2010, titled “A Global View
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 369
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of Business Insolvency Systems” (hereinafter referred to as the “2010 A
Report”) had opined to the contrary.
52. Quite apart from the fact that the 2010 report is an earlier
report, which opined on the basis of the French system, that creditors
are divided into two separate classes without any further sub-
classification and that the advantage of such system is that it avoids B
potential conflict of interest among creditors in a particular class, the
report then goes on to state:

“In some cases, classification makes it easier to treat the claims
of major creditors, who may be persuaded to opt to receive a C
different treatment from the general class of unsecured creditors,
where such treatment is necessary to render the plan feasible.
In such cases, the treatment for these major creditors is generally
on less favorable terms than other, similarly situated creditors.
Finally, classification may be a useful means of overriding the
vote of a class of creditors that votes against the plan where D
the class is otherwise treated in a fair and equitable manner.4”
Even according to this report, therefore, a “cramdown” on
dissentient creditors would pass muster under an insolvency law if such
creditors will receive, under a resolution plan, an amount at least equal
E
to what such creditors would receive in a liquidation proceeding being
“liquidation value”.
53. Also, Philip R. Wood’s book titled “Principles of International
Insolvency” states:
“Secured creditors are super-priority creditors on insolvency. F
Security must stand up on insolvency which is when it is needed
most. Security which is valid between the parties but not as
against the creditors of the debtor is futile. Bankruptcy law which
freeze or delay or weaken or de-prioritise security on insolvency

4
This override, which has come to be known as a “cramdown” based on its effect,
G
allows the court to conclude that a rejecting class should be compelled to accept the
plan where the class is paid in strict accordance with the relative priority of creditor
claims and will receive under the plan a distribution in an amount equal to or greater
than such creditors would receive in a liquidation proceeding. The rationale is that
these creditors cannot claim “foul” if their recovery is at least as good as they would
have received if they had prevailed in having the enterprise liquidated. H
370 SUPREME COURT REPORTS [2019] 16 S.C.R.

A destroy what the law created. Hence the end is more important
than the beginning.
Rationale of security - The main purposes and policies of
security are: protection of creditors on insolvency; the limitation
of cascade or domino insolvencies; security encourages capital,
B e.g. enterprise finance; security reduces the cost of credit, e.g.
margin collateral in markets; he who pays for the asset should
have the right to the asset; security encourages the private rescue
since the bank feels safer; security is defensive control, especially
in the case of project finance; security is a fair exchange for
C the credit.
Main Objections to security The objections to security are
mainly historical, but they resurrect and live on. The hostility may
stem from: debtor-protection stirred by the ancient hostility to
usurers and money-lending and now expressed in consumer
D protection statutes; the prevention of false wealth, i.e. the debtor
has many possessions but few assets – this is usually met by a
requirement for possession (inefficient because not public) or
public registration; unsecured creditors get less on insolvency and
this is seen as a violation of bankruptcy equality, although more
often it is motivated by desire to protect unpaid employees and
E small creditors; security disturbs the safety of commercial
transactions because of priority risks, e.g. the purchaser of goods;
the secured creditor can disrupt a rescue by selling an essential
asset.”
54. Indeed, if an “equality for all” approach recognising the rights
F of different classes of creditors as part of an insolvency resolution
process is adopted, secured financial creditors will, in many cases, be
incentivised to vote for liquidation rather than resolution, as they would
have better rights if the corporate debtor was to be liquidated rather
than a resolution plan being approved. This would defeat the entire
G objective of the Code which is to first ensure that resolution of
distressed assets takes place and only if the same is not possible should
liquidation follow.
55. Financial creditors are in the business of lending money. The
RBI report on Trend and Progress of Banking in India, 2017-2018
H reflects that the net interest margin of Indian banks for the financial
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 371
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year 2017-2018 is averaged at 2.5%. Likewise, the global trend for net A
interest margin was at 3.3% for banks in the USA and 1.6% for banks
in the UK in the year 2016, as per the data published on the website
of the bank. Thus, it is clear that financial creditors earn profit by
earning interest on money lent with low margins, generally being
between 1 to 4%. Also, financial creditors are capital providers for B
companies, who in turn are able to purchase assets and provide a
working capital to enable such companies to run their business operation,
whereas operational creditors are beneficiaries of amounts lent by
financial creditors which are then used as working capital, and often
get paid for goods and services provided by them to the corporate debtor,
out of such working capital. On the other hand, market research carried C
out by India Brand Equity Foundation, a trust established by the Ministry
of Commerce and Industry, as regards the Oil and Gas sector, has stated
that the business risk of operational creditors who operate with higher
profit margins and shorter cyclical repayments must needs be higher.
Also, operational creditors have an immediate exit option, by stopping D
supply to the corporate debtor, once corporate debtors start defaulting
in payment. Financial creditors may exit on their long-term loans, either
upon repayment of the full amount or upon default, by recalling the entire
loan facility and/or enforcing the security interest which is a time
consuming and lengthy process which usually involves litigation. Financial
E
creditors are also part of a regulated banking system which involves
not merely declaring defaulters as non-performing assets but also
involves restructuring such loans which often results in foregoing unpaid
amounts of interest either wholly or partially. All these differences
between financial and operational creditors have been reflected, albeit
differently, in the judgment of Swiss Ribbons (supra). Thus, this Court F
in dealing with some of the differences has held:
“50. According to us, it is clear that most financial creditors,
particularly banks and financial institutions, are secured creditors
whereas most operational creditors are unsecured, payments for
goods and services as well as payments to workers not being G
secured by mortgaged documents and the like. The distinction
between secured and unsecured creditors is a distinction which
has obtained since the earliest of the Companies Acts both in
the United Kingdom and in this country. Apart from the above,
the nature of loan agreements with financial creditors is different H
372 SUPREME COURT REPORTS [2019] 16 S.C.R.

A from contracts with operational creditors for supplying goods and
services. Financial creditors generally lend finance on a term loan
or for working capital that enables the corporate debtor to either
set up and/or operate its business. On the other hand, contracts
with operational creditors are relatable to supply of goods and
B services in the operation of business. Financial contracts generally
involve large sums of money. By way of contrast, operational
contracts have dues whose quantum is generally less. In the
running of a business, operational creditors can be many as
opposed to financial creditors, who lend finance for the set-up
or working of business. Also, financial creditors have specified
C repayment schedules, and defaults entitle financial creditors to
recall a loan in totality. Contracts with operational creditors do
not have any such stipulations. Also, the forum in which dispute
resolution takes place is completely different. Contracts with
operational creditors can and do have arbitration clauses where
D dispute resolution is done privately. Operational debts also tend
to be recurring in nature and the possibility of genuine disputes
in case of operational debts is much higher when compared to
financial debts. A simple example will suffice. Goods that are
supplied may be substandard. Services that are provided may be
substandard. Goods may not have been supplied at all. All these
E
qua operational debts are matters to be proved in arbitration or
in the courts of law. On the other hand, financial debts made to
banks and financial institutions are well documented and defaults
made are easily verifiable.
51. Most importantly, financial creditors are, from the very
F beginning, involved with assessing the viability of the corporate
debtor. They can, and therefore do, engage in restructuring of
the loan as well as reorganisation of the corporate debtor’s
business when there is financial stress, which are things
operational creditors do not and cannot do. Thus, preserving the
G corporate debtor as a going concern, while ensuring maximum
recovery for all creditors being the objective of the Code, financial
creditors are clearly different from operational creditors and
therefore, there is obviously an intelligible differentia between the
two which has a direct relation to the objects sought to be
achieved by the Code.
H xxx xxx xxx
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 373
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75. Since the financial creditors are in the business of A
moneylending, banks and financial institutions are best equipped
to assess viability and feasibility of the business of the corporate
debtor. Even at the time of granting loans, these banks and
financial institutions undertake a detailed market study which
includes a techno-economic valuation report, evaluation of B
business, financial projection, etc. Since this detailed study has
already been undertaken before sanctioning a loan, and since
financial creditors have trained employees to assess viability and
feasibility, they are in a good position to evaluate the contents of
a resolution plan. On the other hand, operational creditors, who
C
provide goods and services, are involved only in recovering
amounts that are paid for such goods and services, and are
typically unable to assess viability and feasibility of business. The
BLRC Report, already quoted above, makes this abundantly
clear.
D
xxx xxx xxx

76. Quite apart from this, the United Nations Commission on
International Trade Law, in its Legislative Guide on Insolvency
Law (the UNCITRAL Guidelines) recognises the importance of
ensuring equitable treatment to similarly placed creditors and states E
as follows:

“Ensuring equitable treatment of similarly situated creditors

7. The objective of equitable treatment is based on the notion
that, in collective proceedings, creditors with similar legal rights F
should be treated fairly, receiving a distribution on their claim in
accordance with their relative ranking and interests. This key
objective recognises that all creditors do not need to be treated
identically, but in a manner that reflects the different bargains
they have struck with the debtor. This is less relevant as a defining G
factor where there is no specific debt contract with the debtor,
such as in the case of damage claimants (e.g. for environmental
damage) and tax authorities. Even though the principle of
equitable treatment may be modified by social policy on priorities
and give way to the prerogatives pertaining to holders of claims H
374 SUPREME COURT REPORTS [2019] 16 S.C.R.

A or interests that arise, for example, by operation of law, it retains
its significance by UNCITRAL Legislative Guide on Insolvency
Law ensuring that the priority accorded to the claims of a similar
class affects all members of the class in the same manner. The
policy of equitable treatment permeates many aspects of an
B insolvency law, including the application of the stay or suspension,
provisions to set aside acts and transactions and recapture value
for the insolvency estate, classification of claims, voting
procedures in reorganisation and distribution mechanisms. An
insolvency law should address problems of fraud and favouritism
that may arise in cases of financial distress by providing, for
C
example, that acts and transactions detrimental to equitable
treatment of creditors can be avoided.”
77. NCLAT has, while looking into viability and feasibility of
resolution plans that are approved by the Committee of Creditors,
always gone into whether operational creditors are given roughly
D
the same treatment as financial creditors, and if they are not,
such plans are either rejected or modified so that the operational
creditors’ rights are safeguarded. It may be seen that a resolution
plan cannot pass muster under Section 30(2)(b) read with Section
31 unless a minimum payment is made to operational creditors,
E being not less than liquidation value. Further, on 5-10-2018,
Regulation 38 has been amended. Prior to the amendment,
Regulation 38 read as follows:
“38. Mandatory contents of the resolution plan.—(1) A
resolution plan shall identify specific sources of funds that will
F be used to pay the—
(a) insolvency resolution process costs and provide that the
insolvency resolution process costs, to the extent unpaid,
will be paid in priority to any other creditor;
(b) liquidation value due to operational creditors and provide
G for such payment in priority to any financial creditor
which shall in any event be made before the expiry of
thirty days after the approval of a resolution plan by the
adjudicating authority; and
(c) liquidation value due to dissenting financial creditors and
H provide that such payment is made before any
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 375
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

recoveries are made by the financial creditors who voted A
in favour of the resolution plan.”
Post amendment, Regulation 38 reads as follows:
“38. Mandatory contents of the resolution plan.—(1) The
amount due to the operational creditors under a resolution plan
B
shall be given priority in payment over financial creditors.
(1-A) A resolution plan shall include a statement as to how it
has dealt with the interests of all stakeholders, including financial
creditors and operational creditors, of the corporate debtor.”
The aforesaid Regulation further strengthens the rights of C
operational creditors by statutorily incorporating the principle of
fair and equitable dealing of operational creditors’ rights, together
with priority in payment over financial creditors.”
(emphasis supplied)
56. By reading paragraph 77 de hors the earlier paragraphs, the D
Appellate Tribunal has fallen into grave error. Paragraph 76 clearly
refers to the UNCITRAL Legislative Guide which makes it clear
beyond any doubt that equitable treatment is only of similarly situated
creditors. This being so, the observation in paragraph 77 cannot be read
to mean that financial and operational creditors must be paid the same E
amounts in any resolution plan before it can pass muster. On the
contrary, paragraph 77 itself makes it clear that there is a difference in
payment of the debts of financial and operational creditors, operational
creditors having to receive a minimum payment, being not less than
liquidation value, which does not apply to financial creditors. The F
amended Regulation 38 set out in paragraph 77 again does not lead to
the conclusion that financial and operational creditors, or secured and
unsecured creditors, must be paid the same amounts, percentage wise,
under the resolution plan before it can pass muster. Fair and equitable
dealing of operational creditors’ rights under the said Regulation involves
the resolution plan stating as to how it has dealt with the interests of G
operational creditors, which is not the same thing as saying that they
must be paid the same amount of their debt proportionately. Also, the
fact that the operational creditors are given priority in payment over all
financial creditors does not lead to the conclusion that such payment
must necessarily be the same recovery percentage as financial creditors. H
376 SUPREME COURT REPORTS [2019] 16 S.C.R.

A So long as the provisions of the Code and the Regulations have been
met, it is the commercial wisdom of the requisite majority of the
Committee of Creditors which is to negotiate and accept a resolution
plan, which may involve differential payment to different classes of
creditors, together with negotiating with a prospective resolution
B applicant for better or different terms which may also involve differences
in distribution of amounts between different classes of creditors.
57. Indeed, by vesting the Committee of Creditors with the
discretion of accepting resolution plans only with financial creditors,
operational creditors having no vote, the Code itself differentiates
between the two types of creditors for the reasons given above. Further,
C
as has been reflected in Swiss Ribbons (supra), most financial creditors
are secured creditors, whose security interests must be protected in
order that they do not go ahead and realise their security in legal
proceedings, but instead are incentivised to act within the framework
of the Code as persons who will resolve stressed assets and bring a
D corporate debtor back to its feet. Shri Sibal’s argument that the
expression “secured creditor” does not find mention in Chapter II of
the Code, which deals with the resolution process, and is only found in
Chapter III, which deals with liquidation, is for the reason that secured
creditors as a class are subsumed in the class of financial creditors, as
has been held in Swiss Ribbons (supra). Indeed, Regulation 13(1) of
E
the 2016 Regulations mandates that when the resolution professional
verifies claims, the security interest of secured creditors is also looked
at and gets taken care of. Similarly, Regulation 36(2)(d) when it
provides for a list of creditors and the amounts claimed by them in the
information memorandum (which is to be submitted to prospective
F resolution applicants), also provides for the amount of claims admitted
and security interest in respect of such claims. Under Regulation 39(4),
the compliance certificate of the resolution professional as to the CIRP
being successful is contained in Form H to the Regulations. This
statutory form, in paragraphs 6 and 7, states as under:
G “6. The Resolution Plan includes a statement under regulation
38(1A) of the CIRP Regulations as to how it has dealt with the
interests of all stakeholders in compliance with the Code and
regulations made thereunder.
7. The amounts provided for the stakeholders under the
H Resolution Plan is as under:
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 377
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

(Amount in Rs. Lakh) A
Sl. Category of Amount Amount Amount Amount
No. Stakeholder Claimed Admitted Provided under Provided to
the Plan the Amount
Claimed (%)
1 Dissenting Secured
Financial Creditors
2 Other Secured Financial B
Creditors
3 Dissenting Unsecured
Financial Creditors
4 Other Unsecured
Financial Creditors
5 Operational Creditors
Government
Workmen C
Employees
…
4 Other Debts and Dues
Total

Quite clearly, secured and unsecured financial creditors are
differentiated when it comes to amounts to be paid under a resolution
plan, together with what dissenting secured or unsecured financial D
creditors are to be paid. And, most importantly, operational creditors
are separately viewed from these secured and unsecured financial
creditors in S.No.5 of paragraph 7 of statutory Form H. Thus, it can
be seen that the Code and the Regulations, read as a whole, together
with the observations of expert bodies and this Court’s judgment, all E
lead to the conclusion that the equality principle cannot be stretched to
treating unequals equally, as that will destroy the very objective of the
Code - to resolve stressed assets. Equitable treatment is to be accorded
to each creditor depending upon the class to which it belongs: secured
or unsecured, financial or operational.
F
58. However, Shri Sibal relied strongly upon a judgment of this
Court being Mihir R. Mafatlal v. Mafatlal Industries Ltd. (1997) 1
SCC 579, and in particular paragraph 28 thereof, which stated as follows:
“28. …On a conjoint reading of the relevant provisions of Sections
391 and 393 it becomes at once clear that the Company Court G
which is called upon to sanction such a scheme has not merely
to go by the ipse dixit of the majority of the shareholders or
creditors or their respective classes who might have voted in
favour of the scheme by requisite majority but the Court has to
consider the pros and cons of the scheme with a view to finding
out whether the scheme is fair, just and reasonable and is not H
378 SUPREME COURT REPORTS [2019] 16 S.C.R.

A contrary to any provisions of law and it does not violate any public
policy. This is implicit in the very concept of compromise or
arrangement which is required to receive the imprimatur of a
court of law. No court of law would ever countenance any
scheme of compromise or arrangement arrived at between the
parties and which might be supported by the requisite majority if
B
the Court finds that it is an unconscionable or an illegal scheme
or is otherwise unfair or unjust to the class of shareholders or
creditors for whom it is meant. Consequently it cannot be said
that a Company Court before whom an application is moved for
sanctioning such a scheme which might have got the requisite
C majority support of the creditors or members or any class of them
for whom the scheme is mooted by the company concerned, has
to act merely as a rubber stamp and must almost automatically
put its seal of approval on such a scheme. It is trite to say that
once the scheme gets sanctioned by the Court it would bind even
the dissenting minority shareholders or creditors. Therefore, the
D
fairness of the scheme qua them also has to be kept in view by
the Company Court while putting its seal of approval on the
scheme concerned placed for its sanction. It is, of course, true
that so far as the Company Court is concerned as per the
statutory provisions of Sections 391 and 393 of the Act the
E question of voidability of the scheme will have to be judged
subject to the rider that a scheme sanctioned by majority will
remain binding to a dissenting minority of creditors or members,
as the case may be, even though they have not consented to such
a scheme and to that extent absence of their consent will have
no effect on the scheme. It can be postulated that even in case
F
of such a scheme of compromise and arrangement put up for
sanction of a Company Court it will have to be seen whether
the proposed scheme is lawful and just and fair to the whole class
of creditors or members including the dissenting minority to whom
it is offered for approval and which has been approved by such
G class of persons with requisite majority vote.”
The very next paragraph, however, states as follows:
“29. However further question remains whether the Court has
jurisdiction like an appellate authority to minutely scrutinise the
scheme and to arrive at an independent conclusion whether the
H scheme should be permitted to go through or not when the
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majority of the creditors or members or their respective classes A
have approved the scheme as required by Section 391 sub-
section (2). On this aspect the nature of compromise or
arrangement between the company and the creditors and
members has to be kept in view. It is the commercial wisdom of
the parties to the scheme who have taken an informed decision
B
about the usefulness and propriety of the scheme by supporting
it by the requisite majority vote that has to be kept in view by
the Court. The Court certainly would not act as a court of appeal
and sit in judgment over the informed view of the parties
concerned to the compromise as the same would be in the realm
of corporate and commercial wisdom of the parties concerned. C
The Court has neither the expertise nor the jurisdiction to delve
deep into the commercial wisdom exercised by the creditors and
members of the company who have ratified the Scheme by the
requisite majority. Consequently the Company Court’s jurisdiction
to that extent is peripheral and supervisory and not appellate. The
D
Court acts like an umpire in a game of cricket who has to see
that both the teams play their game according to the rules and
do not overstep the limits. But subject to that how best the game
is to be played is left to the players and not to the umpire.”
In Mihir Mafatlal (supra), the Court was dealing with schemes
E
of amalgamation under Section 391 of the Companies Act, 1956. Under
Section 392 of the said Act, the High Court is vested with a supervisory
jurisdiction, which includes the power to give directions and make
modifications in such schemes, as it may consider necessary, for the
proper working of the said Schemes. This power in Section 392 is
conspicuous by its absence when it comes to the Adjudicating Authority F
under the Code, whose jurisdiction is circumscribed by Section 30(2).
It is the Committee of Creditors, under Section 30(4) read with
Regulation 39(3), that is vested with the power to approve resolution
plans and make modifications therein as the Committee deems fit. It is
this vital difference between the jurisdiction of the High Court under
G
Section 392 of the Companies Act, 1956 and the jurisdiction of the
Adjudicating Authority under the Code that must be kept in mind when
the Adjudicating Authority is to decide on whether a resolution plan
passes muster under the Code. When this distinction is kept in mind, it
is clear that there is no residual jurisdiction not to approve a resolution
plan on the ground that it is unfair or unjust to a class of creditors, so H
380 SUPREME COURT REPORTS [2019] 16 S.C.R.

A long as the interest of each class has been looked into and taken care
of. It is important to note that even under Sections 391 and 392 of the
Companies Act, 1956, ultimately it is the commercial wisdom of the
parties to the scheme, reflected in the 75% majority vote, which then
binds all shareholders and creditors. Even under Sections 391 and 392,
the High Court cannot act as a court of appeal and sit in judgment over
B
such commercial wisdom.
The constitution of a sub-committee by the Committee of
Creditors
59. A large part of Shri Sibal’s submission was centered around
C the fact that the Committee of Creditors delegated its functions to a
sub-committee, which delegation is impermissible. As a result of this
delegation, the sub-committee secretly made negotiations with
ArcelorMittal, which secret negotiations then produced a wholly
inequitable result in that Standard Chartered Bank, though a financial
creditor, was only paid 1.74% of its admitted claim of INR 3487 crores
D as opposed to other financial creditors who were paid 74.8% of what
was claimed by them.
60. Under Section 21(8) of the Code, all decisions by the
Committee of Creditors can be taken by a 51% majority vote, unless,
a higher percentage is required under other specific provisions of the
E Code.
61. In Pradyat Kumar Bhose v. The Hon’ble the Chief
Justice of Calcutta High Court (1955) 2 SCR 1331 at page 1345-
1346, this Court, when dealing with the Chief Justice of the High Court
of Calcutta’s administrative powers held:
F
“The further subordinate objections that have been raised remain
to be considered. The first objection that has been urged is that
even if the Chief Justice had the power to dismiss, he was not,
in exercise of that power, competent to delegate to another Judge
the enquiry into the charges but should have made the enquiry
G himself. This contention proceeds on a misapprehension of the
nature of the power. As pointed out in Barnard v. National Dock
Labour Board [(1953) 2 QB 18, 40] at p. 40, it is true that “no
judicial tribunal can delegate its functions unless it is enabled to
do so expressly or by necessary implication”. But the exercise
H of the power to appoint or dismiss an officer is the exercise not
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 381
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

of a judicial power but of an administrative power. It is A
nonetheless so, by reason of the fact that an opportunity to show
cause and an enquiry simulating judicial standards have to
precede the exercise thereof. It is well-recognised that a statutory
functionary exercising such a power cannot be said to have
delegated his functions merely by deputing a responsible and
B
competent official to enquire and report. That is the ordinary mode
of exercise of any administrative power. What cannot be
delegated except where the law specifically so provides — is
the ultimate responsibility for the exercise of such power. As
pointed out by the House of Lords in Board of Education v.
Rice [(1911) AC 179, 182] , a functionary who has to decide an C
administrative matter, of the nature involved in this case, can
obtain the material on which he is to act in such manner as may
be feasible and convenient, provided only the affected party “has
a fair opportunity to correct or contradict any relevant and
prejudicial material”. The following passage from the speech of
D
Lord Chancellor in Local Government Board v. Arlidge [(1915)
AC 120, 133] is apposite and instructive:
“My Lords, I concur in this view of the position of an
administrative body to which the decision of a question in
dispute between parties has been entrusted. The result of its E
inquiry must, as I have said, be taken, in the absence of
directions in the statute to the contrary, to be intended to be
reached by its ordinary procedure. In the case of the Local
Government Board it is not doubtful what this procedure is.
The Minister at the head of the Board is directly responsible
to Parliament like other Ministers. He is responsible not only F
for what he himself does but for all that is done in his
department. The volume of work entrusted to him is very
great and he cannot do the great bulk of it himself. He is
expected to obtain his materials vicariously through his
officials, and he has discharged his duty if he sees that they G
obtain these materials for him properly. To try to extend his
duty beyond this and to insist that he and other members of
the Board should do everything personally would be to impair
his efficiency. Unlike a Judge in a Court he is not only at
liberty but is compelled to rely on the assistance of his staff.” H
382 SUPREME COURT REPORTS [2019] 16 S.C.R.

A In view of the above clear statement of the law the objection to
the validity of the dismissal on the ground that the delegation of
the enquiry amounts to the delegation of the power itself is
without any substance and must be rejected.”
Likewise, in High Court of Judicature at Bombay through
B its Registrar v. Shirishkumar Rangrao Patil & Anr. (1997) 6 SCC
339, this Court, in dealing with the constitution of various committees
for the administration of the High Court, when dealing with question of
delegation held:
“10. It would thus be settled law that the control of the
C subordinate judiciary under Article 235 is vested in the High
Court. After the appointment of the judicial officers by the
Governor, the power to transfer, maintain discipline and keep
control over them vests in the High Court. The Chief Justice of
the High Court is first among the Judges of the High Court. The
D action taken is by the High Court and not by the Chief Justice in
his individual capacity, nor by the Committee of Judges. For the
convenient transaction of administrative business in the Court,
the Full Court of the Judges of the High Court generally passes
a resolution authorising the Chief Justice to constitute various
committees including the committee to deal with disciplinary
E matters pertaining to the subordinate judiciary or the ministerial
staff working therein. Article 235, therefore, relates to the power
of taking a decision by the High Court against a member of the
subordinate judiciary. Such a decision either to hold an enquiry
into the conduct of a judicial officer, subordinate or higher
F judiciary, or to have the enquiry conducted through a District or
Additional District Judge etc. and to consider the report of the
enquiry officer for taking further action is of the High Court.
Equally, the decision to consider the report of the enquiry officer
and to take follow-up action and to make appropriate
recommendation to the Disciplinary Committee or to the
G
Governor, is entirely of the High Court which acts through the
Committee of the Judges authorised by the Full Court. Once a
resolution is passed by the Full Court of the High Court, there is
no further necessity to refer the matter again to the Full Court
while taking such procedural steps relating to control of the
H subordinate judiciary.”
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 383
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62. We find, that when it comes to the exercise of the Committee A
of Creditors’ powers on questions which have a vital bearing on the
running of the business of the corporate debtor, Section 28(1)(h) provides
that though these powers are administrative in nature, they shall not be
delegated to any other person, meaning thereby, that the Committee of
Creditors alone must take the decisions mentioned in Section 28 and B
not any person other than such Committee. When it comes to approving
a resolution plan under Section 30(4), there is no doubt whatsoever that
this power also cannot be delegated to any other body as it is the
Committee of Creditors alone that has been vested with this important
business decision which it must take by itself. However, this does not
mean that sub-committees cannot be appointed for the purpose of C
negotiating with resolution applicants, or for the purpose of performing
other ministerial or administrative acts, provided such acts are in the
ultimate analysis approved and ratified by the Committee of Creditors.
We find, having gone through the minutes of all the important creditors’
meetings that were held, that every single administrative decision qua D
approving and administering the resolution plan submitted by
ArcelorMittal was in fact done by the requisite majority of the
Committee of Creditors itself, the sub-committee having been used only
for purposes of initiating proceedings and negotiating with ArcelorMittal,
which ultimately culminated in the resolution plan as finally negotiated,
being passed by the requisite majority of creditors on 23.10.2018. In E
point of fact, Standard Chartered Bank voted in favour of the constitution
of a sub-committee on the 12th committee of creditors meeting of
02.05.2018, as also, in favour of decisions of the Committee of Creditors
finalizing drafts of sub-committees on eligibility of resolution applicants
at the 13th Committee of Creditors meeting on 05.05.2018. Also, as a F
matter of fact, on 31.05.2018, at the 16 th Committee of Creditors
meeting, a request was made by Standard Chartered Bank to be a
member of the sub-committee, which request was later withdrawn. We
also find that in the authorisation to the sub-committee to negotiate with
ArcelorMittal, mooted at the 20th Committee of Creditors meeting on
G
19.10.2018, a request was made by Standard Chartered Bank for
inclusion in the said sub-committee. However, Standard Chartered Bank
did not agree to put the reconstitution of the sub-committee to vote by
the Committee of Creditors. Given these facts, we find, therefore, that
it is only when Standard Chartered Bank found that things were going
against it that it started raising objections on the technical plea that sub- H
384 SUPREME COURT REPORTS [2019] 16 S.C.R.

A committees cannot be constituted under the Code. This is not a
bonafide plea. For all these reasons, this objection of Standard
Chartered Bank is also rejected.
Extinguishment of Personal Guarantees and Undecided
Claims
B 63. Shri Gopal Subramanium and Shri Rakesh Dwivedi have also
appealed against the extinguishment of the rights of creditors against
guarantees that were extended by the promoters/promoter group of the
corporate debtor. According to them, this was done by a side wind by
the Appellate Tribunal without any reasons for the same.
C 64. Shri Prashant Ruia a promoter/director of the corporate
debtor in his personal guarantee dated 28.09.2013, specifically stated
as follows:
“7. The obligations of the Guarantor under this Guarantee shall
not be affected by any act, omission, matter or thing that, but
D for this Guarantee, would reduce, release or prejudice any of its
obligations under this Guarantee (without limitation and whether
or not known to it or any Secured Party) including :
xxx xxx xxx

E (g) any insolvency or similar proceedings.”
Also, under the caption “terms of settlement”, the final resolution
plan dated 02.04.2018, as approved on 23.10.2018, specifically provided:
“Financial Creditors:
Pursuant to the approval of this Resolution Plan by the
F
Adjudicating Authority, each of the Financial Creditors shall be
deemed to have agreed and acknowledged the following terms:
The payment to the Financial creditors in accordance with this
Resolution Plan shall be treated as full and final payment of all
outstanding dues of the Corporate Debtor to each of the Financial
G
Creditors as of the Effective Date, and all agreements and
arrangements entered into by or in favour of each of the Financial
Creditors, including but not limited to loan agreements and security
agreements (other than corporate or personal guarantees
provided in relation to the Corporate Debtor by the Existing
H Promoter Group or their respective affiliates) shall be deemed
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 385
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

to have been (i) assigned / novated to the Resolution applicant, A
or any Person nominated by the Resolution applicant, with effect
from the effective Date, with no rights subsisting or accruing to
the Financial Creditors for the period prior to such assignment
or novation; and (ii) to the extent not legally capable of assigned
or novated- terminated with effect from the effective Date, with B
no rights accruing or subsisting to the Financial Creditors for the
period prior to termination.
In relation to the loan and financial assistance provided to
the Corporate Debtor; each of the Financial Creditors, as the case
maybe, shall: C
- Assign/ novate all security given (including but not limited to
Encumbrance over assets of the Corporate Debtor, pledge of
shares of the Corporate Debtor (other than corporate guarantees
and personal guarantees) related in any manner to the Corporate
Debtor) to the Resolution Applicant and /or its Connected D
Persons, and /or banks or financial institutions designated by the
Resolution Applicant in this regard, pursuant to the Acquisition
Structure, with effect from the Effective Date;
- Issue such letters and communications, and take such other
actions, as may be required or deemed necessary for the release, E
assignment or novation of (i) the Encumbrance over the assets
of the Corporate Debtor; and (ii) the pledge over the shares of
the Corporate Debtor; within 5(five) Business Days from the
Effective Date; and
- Be deemed to have waived all claims and dues (including F
interest and penalty, if any) from the Corporate Debtor arising
on and from the insolvency Commencement Date, until the
effective Date.”
65. Shri Rohatgi, learned senior advocate appearing on behalf
of Shri Prashant Ruia, also pointed out Section XIII (1)(g) of the G
resolution plan dated 23.10.18, in which it is stated as follows:
“Upon the approval of the Resolution Plan by the Adjudicating
Authority in relation to guarantees provided for and on behalf
of, and in order to secure the financial assistance availed by the
Corporate Debtor, which have been invoked prior to the Effective H
386 SUPREME COURT REPORTS [2019] 16 S.C.R.

A Date, claims of the guarantor on account of subrogation, if any,
under any such guarantee shall be deemed to have been abated,
released, discharged and extinguished.
It is hereby clarified that, the aforementioned clause shall not
apply in any manner which may extinguish/affect the rights of
B the Financial Creditors to enforce the corporate guarantees and
personal guarantees issued for and on behalf of the Corporate
Debtor by Existing Promoter Group or their respective affiliates,
which guarantees shall continue to be retained by the Financial
Creditors and shall continue to be enforceable by them.”
C (emphasis supplied)
We were also informed by the learned senior counsel that the
personal guarantees of the promoter group have been invoked and legal
proceedings in respect thereof are pending. It has been pointed out to
us that Shri Prashant Ruia and other members of the promoter group,
D who are guarantors, are not parties to the resolution plan submitted by
ArcelorMittal and hence, the resolution plan cannot bind them to take
away rights of subrogation, which they may have if they are ordered
to pay amounts guaranteed by them in the pending legal proceedings.
66. Section 31(1) of the Code makes it clear that once a resolution
E plan is approved by the Committee of Creditors it shall be binding on
all stakeholders, including guarantors. This is for the reason that this
provision ensures that the successful resolution applicant starts running
the business of the corporate debtor on a fresh slate as it were. In State
Bank of India v. V. Ramakrishnan, 2018 (9) SCALE 597, this Court
relying upon Section 31 of the Code has held:
F
“22. Section 31 of the Act was also strongly relied upon by the
Respondents. This Section only states that once a Resolution
Plan, as approved by the Committee of Creditors, takes effect,
it shall be binding on the corporate debtor as well as the guarantor.
This is for the reason that otherwise, Under Section 133 of the
G Indian Contract Act, 1872, any change made to the debt owed
by the corporate debtor, without the surety’s consent, would
relieve the guarantor from payment. Section 31(1), in fact, makes
it clear that the guarantor cannot escape payment as the
Resolution Plan, which has been approved, may well include
H provisions as to payments to be made by such guarantor. This is
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 387
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

perhaps the reason that Annexure VI(e) to Form 6 contained in A
the Rules and Regulation 36(2) referred to above, require
information as to personal guarantees that have been given in
relation to the debts of the corporate debtor. Far from supporting
the stand of the Respondents, it is clear that in point of fact,
Section 31 is one more factor in favour of a personal guarantor
B
having to pay for debts due without any moratorium applying to
save him.”
Following this judgment, it is difficult to accept Shri Rohatgi’s
argument that that part of the resolution plan which states that the claims
of the guarantor on account of subrogation shall be extinguished, cannot
be applied to the guarantees furnished by the erstwhile directors of the C
corporate debtor. So far as the present case is concerned, we hasten
to add that we are saying nothing which may affect the pending litigation
on account of invocation of these guarantees. However, the NCLAT
judgment being contrary to Section 31(1) of the Code and this Court’s
judgment in State Bank of India (supra), is set aside. D
67. For the same reason, the impugned NCLAT judgment in
holding that claims that may exist apart from those decided on merits
by the resolution professional and by the Adjudicating Authority/
Appellate Tribunal can now be decided by an appropriate forum in terms
of Section 60(6) of the Code, also militates against the rationale of E
Section 31 of the Code. A successful resolution applicant cannot
suddenly be faced with “undecided” claims after the resolution plan
submitted by him has been accepted as this would amount to a hydra
head popping up which would throw into uncertainty amounts payable
by a prospective resolution applicant who successfully take over the
business of the corporate debtor. All claims must be submitted to and F
decided by the resolution professional so that a prospective resolution
applicant knows exactly what has to be paid in order that it may then
take over and run the business of the corporate debtor. This the
successful resolution applicant does on a fresh slate, as has been pointed
out by us hereinabove. For these reasons, the NCLAT judgment must G
also be set aside on this count.
Utilisation of profits of the corporate debtor during CIRP
to pay off creditors
68. The RFP issued in terms of Section 25 of the Code and
consented to by ArcelorMittal and the Committee of Creditors had H
388 SUPREME COURT REPORTS [2019] 16 S.C.R.

A provided that distribution of profits made during the corporate insolvency
process will not go towards payment of debts of any creditor – see
Clause 7 of the first addendum to the RFP dated 08.02.2018. On this
short ground, this part of the judgment of the NCLAT is also incorrect.
Constitutional Validity of Section 4 and 6 of the Amending
B Act, 2019
69. In Swiss Ribbons (supra) this Court was at pains to point
out, referring, inter alia, to various American decisions in paras 17 to
24, that the legislature must be given free play in the joints when it comes
to economic legislation. Apart from the presumption of constitutionality
C which arises in such cases, the legislative judgment in economic choices
must be given a certain degree of deference by the courts. In para
120 of the said judgment, this Court held:
“120. The Insolvency Code is a legislation which deals with
economic matters and, in the larger sense, deals with the economy
D of the country as a whole. Earlier experiments, as we have seen,
in terms of legislations having failed, “trial” having led to repeated
“errors”, ultimately led to the enactment of the Code. The
experiment contained in the Code, judged by the generality of
its provisions and not by so-called crudities and inequities that
have been pointed out by the petitioners, passes constitutional
E muster. To stay experimentation in things economic is a grave
responsibility, and denial of the right to experiment is fraught with
serious consequences to the nation. We have also seen that the
working of the Code is being monitored by the Central
Government by Expert Committees that have been set up in this
F behalf. Amendments have been made in the short period in which
the Code has operated, both to the Code itself as well as to
subordinate legislation made under it. This process is an ongoing
process which involves all stakeholders, including the petitioners.”
It is in this background that the constitutional challenge to the
G Amending Act of 2019 will have to be decided.
70. Closely on the heels of the impugned NCLAT judgment which
was delivered on 04.07.2019, a representation dated 17.07.2019 was
written by the Deputy Secretary General, FICCI to the Secretary,
Ministry of Corporate Affairs, pointing out the flaws of the NCLAT
judgment and suggesting that the Government may consider amendment
H
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 389
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

of the Code to reinstate the law as it was and should be. This A
representation stated:
“A case in point is the recent NCLAT judgment which, in effect,
places Secured and unsecured Financial Creditors as well as
Financial and Operational Creditors on an equal footing, thus
virtually erasing the distinction specifically carved between these B
two classes of creditors by the provisions of the Code. It may
be noted that the consequences of this order stretch beyond this
particular case.
The doctrine that secured creditors shall rank ahead of unsecured
creditors is a core principle of banking. It allows banks to lend C
to companies and individuals at lower rates of interest in a
secured lending because they know that their loan is secured and
in the eventuality of a default, their losses would be mitigated.
By virtue of this order, the borrowing rates for all classes would
go up in the future because banks can’t be sure of protecting
their losses. The fundamental principles of credit analysis and D
rating no longer hold true. This would also result in unjust
enrichment for some creditors who, knowing that they don’t have
benefit of the security, lent at a much higher rate as compared
to the secured lenders. Besides earning far more money than
secured creditors, due to higher interest rate during the pre E
insolvency stage they now have the benefit of higher share in
the plan value, at the expense of secured creditors. In fact the
ruling puts in question the very concept of security – what is the
use of a charge/security if it is meaningless in insolvency? Even
other statutes, including the Companies Act, 2013 clearly lay
down a distinction between secured and unsecured creditors and F
if both are treated at par it will be a huge disincentive for secured
creditors…In fact, in its judgement on the constitutionality of the
IBC earlier this year, the Supreme Court had justified the
difference between financial and operational creditors. The
NCLAT order effectively negates that distinction, which is against G
the fundamental theme of the IBC. If the distinction between
secured and unsecured financial creditors and between financial
and operational creditors is not maintained, bankers would be
reluctant to use the IBC provisions for resolution of stressed
assets, and would prefer for the companies to enter liquidation,
which is certainly not the intent of the Code. The decision may H
390 SUPREME COURT REPORTS [2019] 16 S.C.R.

A also open the flood-gates for reopening of previously concluded
cases as well as filing of fresh applications and appeals by
operational creditors, alleging discrimination and seeking parity
with financial creditors and also by unsecured financial creditors,
alleging discrimination and seeking parity with secured financial
creditors.
B
xxx xxx xxx
We would like to draw your attention to Sections 30 and 31 of
the Code which contain detailed provisions on submission and
approval of the resolution plan. As per section 31(1), once the
C Adjudicating Authority is satisfied that the resolution plan as
approved by the committee of creditors meets the requirements
of section 30, it shall approve the resolution plan. The Insolvency
and Bankruptcy Board of India has also prescribed rules and
regulations on mandatory requirements of resolution plan. The
statute thus clearly empowers the committee of creditors to
D decide the distribution of funds. It also recognizes that as long
as the resolution plan is in conformity with law, the Adjudication
Authority must approve the resolution plan, as is evidenced by
the usage of the word ‘shall’ in section 31(1). In K. Sashidhar
case the Supreme Court has clearly held that commercial
E decisions of the committee of creditors are not open to judicial
review. We would like to clarify that the fundamental principle
that there should be no discrimination between similarly situated
creditors is not being questioned by the industry. The question is
whether we can redefine class to mean all financial creditors
irrespective of inter-creditor arrangement or their security. Such
F a finding is a complete rewrite of laws, practices and the
agreement and bargain of parties at the time of financing (or
when goods or services were provided).
We therefore strongly suggest that the Government may consider
amendment of the Code to expressly clarify the distinction
G between secured and unsecured creditors and between financial
and operational creditors. Also, decisions of resolution applicant,
as accepted by the committee of creditors should be considered
final unless they are found to be contrary to law. This would
avoid any confusion; be in line with the global practices and held
H India retain its status of preferred investment destination.”
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 391
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

71. Pursuant to this and representations from Banks and industry, A
the Amending Act of 2019 was then made. Sections 4 and 6 of the
Amending Act of 2019 read as under:
“4. Amendment of section 12.
In section 12 of the principal Act, in sub-section (3), after the
B
proviso, the following provisos shall be inserted, namely:––
“Provided further that the corporate insolvency resolution process
shall mandatorily be completed within a period of three hundred
and thirty days from the insolvency commencement date, including
any extension of the period of corporate insolvency resolution
C
process granted under this section and the time taken in legal
proceedings in relation to such resolution process of the corporate
debtor:
Provided also that where the insolvency resolution process of a
corporate debtor is pending and has not been completed within
D
the period referred to in the second proviso, such resolution
process shall be completed within a period of ninety days from
the date of commencement of the Insolvency and Bankruptcy
Code (Amendment) Act, 2019.”
xxx xxx xxx
E
6. Amendment to section 30.
In section 30 of the principal Act,––
(a) in sub-section (2), for clause (b), the following shall be
substituted, namely:—
F
“(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; G
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, H
392 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 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.
B
Explanation 1.––For the 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 purposes of this clause, it is hereby
C 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
D 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
E against the decision of the Adjudicating Authority in
respect of a resolution plan;”
b) in sub-section (4), after the words “feasibility and viability,”,
the words, brackets and figures “the manner of distribution
proposed, which may take into account the order of priority
F amongst creditors as laid down in sub-section (1) of section 53,
including the priority and value of the security interest of a
secured creditor” shall be inserted.”
72. The frontal attack of Shri Sibal on Sections 4 and 6 of the
Amending Act of 2019 is that it was tailor-made to do away with the
G judgment of the NCLAT in this very matter. This being so, such
legislation would be clearly outside the bounds of the legislature as the
legislature cannot interfere with a particular judgment and set it aside.
73. There is no doubt that the Amending Act of 2019 consists of
several Sections which have been enacted/amended as difficulties have
H arisen in the working of the Code. While it is true that it may well be
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 393
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

that the law laid down by the NCLAT in this very case forms the basis A
for some of these amendments, it cannot be said that the legislature
has directly set aside the judgment of the NCLAT. Since an appeal
against the judgment of the NCLAT lies to the Supreme Court, the
legislature is well within its bounds to lay down laws of general
application to all persons affected, bearing in mind what it considers to
B
be a curing of a defective reading of the law by an Appellate Tribunal.
There can be no doubt whatsoever that apart from the present case
the amendments made by the Amending Act of 2019 apply down the
board to all persons who are affected by its provisions. Also, it is settled
law that bad faith, in the sense of improper motives, cannot be ascribed
to a legislature making laws. This is settled law ever since the celebrated C
judgment of B.K. Mukherjea,J. In K.C. Gajapati Narayan Deo and
Others v. State of Orissa 1954 SCR 1. This was felicitously laid down
as follows:
“…As the question is of some importance and is likely to be
debated in similar cases in future, it would be necessary to D
examine the precise scope and meaning of what is known
ordinarily as the doctrine of “colourable legislation”.
It may be made clear at the outset that the doctrine of colourable
legislation does not involve any question of bona fides or mala fides on
the part of the legislature. The whole doctrine resolves itself into the E
question of competency of a particular legislature to enact a particular
law. If the legislature is competent to pass a particular law, the motives
which impelled it to act are really irrelevant. On the other hand, if the
legislature lacks competency, the question of motive does not arise at
all. Whether a statute is constitutional or not is thus always a question
of power [Vide Cooley’s Constitutional Limitations, Vol 1 p 379] . A F
distinction, however, exists between a legislature which is legally
omnipotent like the British Parliament and the laws promulgated by it
which could not be challenged on the ground of incompetence, and a
legislature which enjoys only a limited or a qualified jurisdiction. If the
Constitution of a State distributes the legislative powers amongst
G
different bodies, which have to act within their respective spheres
marked out by specific legislative entries, or if there are limitations on
the legislative authority in the shape of fundamental rights, questions
do arise as to whether the legislature in a particular case has or has
not, in respect to the subject-matter of the statute or in the method of
enacting it, transgressed the limits of its constitutional powers.” H
394 SUPREME COURT REPORTS [2019] 16 S.C.R.

A Likewise, a 7-Judge Bench in STO v. Ajit Mills Ltd. (1977) 4
SCC 98, has also clearly stated as follows:
“16. Before scanning the decisions to discover the principle laid
down therein, we may dispose of the contention which has
appealed to the High Court based on “colourable device’.
B Certainly, this is a malignant expression and when flung with fatal
effect at a representative instrumentality like the legislature,
deserves serious reflection. If, forgetting comity, the Legislative
wing charges the Judicature wing with “colourable” judgments,
it will be intolerably subversive of the rule of law. Therefore, we
too must restrain ourselves from making this charge except in
C absolutely plain cases and pause to understand the import of the
doctrine of colourable exercise of public power, especially
legislative power. In this branch of law, “colourable” is not “tainted
with bad faith or evil motive’ ; it is not pejorative or crooked.
Conceptually, “colourability” is bound up with incompetency.
D “Colour ’, according to Black’s Legal Dictionary, is “an
appearance, semblance or simulacrum, as distinguished from that
which is real ... a deceptive appearance ... a lack of reality’. A
thing is colourable which is, in appearance only and not in reality,
what it purports to be. In Indian terms, it is maya. In the
jurisprudence of power, colourable exercise of or fraud on
E legislative power or, more frightfully, fraud on the Constitution,
are expressions which merely mean that the legislature is
incompetent to enact a particular law although the label of
competency is stuck on it, and then it is colourable legislation. It
is very important to notice that if the legislature is competent to
F pass the particular law, the motives which impel it to pass the
law are really irrelevant. To put it more relevantly to the case
on hand, if a legislation, apparently enacted under one Entry in
the List, falls in plain truth and fact, within the content, not of
that Entry but of one assigned to another legislature, it can be
struck down as colourable even if the motive were most
G commendable. In other words, the letter of the law
notwithstanding, what is the pith and substance of the Act? Does
it fall within any entry assigned to that legislature in pith and
substance, or as covered by the ancillary powers implied in that
Entry? Can the legislation be read down reasonably to bring it
H within the legislature’s constitutional powers? If these questions
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 395
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

can be answered affirmatively, the law is valid. Malice or motive A
is beside the point, and it is not permissible to suggest
parliamentary incompetence on the score of mala fides.”
It is clear therefore for all these reasons that Sections 4 and 6
of the Amending Act of 2019 cannot be struck down on this score.
74.So far as Section 4 is concerned, it is clear that the original B
timelines in which a CIRP must be completed have now been extended
to 330 days, which is 60 days more than 180 plus 90 days (which is
equal to 270 days). But this 330-day period includes the time taken in
legal proceedings in relation to such resolution process of the corporate
debtor. This provision is to get over what is stated in the judgment in
C
ArcelorMittal India (supra) at paragraph 86, that the time taken in
legal proceedings in relation to the corporate resolution process must
be excluded from the timeline mentioned in Section 12. Secondly, the
third proviso added to the Section also mandates that where the period
of 330 days is over on the date of commencement of the Amending
Act of 2019, a further grace period of 90 days from such date is given, D
within which such process shall either be completed or the corporate
debtor be sent into liquidation.
75.The raison d’être for this provision comes from the experience
that has been plaguing the legislature ever since SICA was promulgated.
The problems of SICA and other successor enactments was stated in
E
graphic detail in Madras Petrochem Limited v. BIFR (2016) 4 SCC
1 at paragraphs 17 to 23. It will be seen from these paragraphs that
though SICA, the Recovery of Debts Act of 1993 and the Securitisation
and Reconstruction of Financial Assets and Enforcement of Securities
Interest Act, 2002 (hereinafter referred to as “SARFAESI Act”) all
provided for expeditious determination and timely detection of sickness F
in industrial companies, yet, legal proceedings under the same dragged
on for years as a result of which all these statutory measures proved
to be abject failures in resolving stressed assets. It is for this reason
that the BLRC Report of 2015 stated:
“In limited circumstances, if 75 % of the creditors committee
G
decides that the complexity of a case requires more time for a
resolution plan to be finalised, a onetime extension of the 180
day period for up to 90 days is possible with the prior approval
of the adjudicator. This is starkly different from certain present
arrangements which permit the debtor / promoter to seek
extensions beyond any limit. H
396 SUPREME COURT REPORTS [2019] 16 S.C.R.

A This approach has many strengths:
• Asset stripping by promoters is controlled after and before
default.
• The promoters can make a proposal that involves buying back
the company for a certain price, alongside a certain debt
B restructuring.
• Others in the economy can make proposals to buy the
company at a certain price, alongside a certain debt
restructuring.
• All parties knows that if no deal is struck within the stipulated
C
period, the company will go into liquidation. This will help
avoid delaying tactics. The inability of promoters to steal from
the company, owing to the supervision of the IP, also helps
reduce the incentive to have a slow lingering death.
• The role of the adjudicator will be on process issues: To
D ensure that all financial creditors were indeed on the creditors
committee, and that 75% of the creditors do indeed support
the resolution plan.
xxx xxx xxx

E Speed is of essence
Speed is of essence for the working of the bankruptcy code, for
two reasons. First, while the „calm period can help keep an
organisation afloat, without the full clarity of ownership and
control, significant decisions cannot be made. Without effective
leadership, the firm will tend to atrophy and fail. The longer the
F
delay, the more likely it is that liquidation will be the only answer.
Second, the liquidation value tends to go down with time as many
assets suffer from a high economic rate of depreciation.
From the viewpoint of creditors, a good realisation can generally
be obtained if the firm is sold as a going concern. Hence, when
G delays induce liquidation, there is value destruction. Further, even
in liquidation, the realisation is lower when there are delays.
Hence, delays cause value destruction. Thus, achieving a high
recovery rate is primarily about identifying and combating the
sources of delay. This same idea is found in FSLRC’s treatment
H of the failure of financial firms. The most important objective in
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 397
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

designing a legal framework for dealing with firm failure is the A
need for speed.
Identifying and addressing the sources of delay
Before the IRP can commence, all parties need an accurate and
undisputed set of facts about existing credit, collateral that has
been pledged, etc. Under the present arrangements, considerable B
time can be lost before all parties obtain this information. Disputes
about these facts can take up years to resolve in court. The
objective of an IRP that is completed in no more than 180 days
can be lost owing to these problems.
Hence, the Committee envisions a competitive industry of C
„information utilities who hold an array of information about all
firms at all times. When the IRP commences, within less than a
day, undisputed and complete information would become available
to all persons involved in the IRP and thus address this source
of delay. D
The second important source of delays lies in the adjudicatory
mechanisms. In order to address this, the Committee
recommends that the National Company Law Tribunals (for
corporate debtors) and Debt Recovery Tribunals (for individuals
and partnership firms) be provided with all the necessary E
resources to help them in realising the objectives of the Code.
xxx xxx xxx
Conclusion
The failure of some business plans is integral to the process of
F
the market economy. When business failure takes place, the best
outcome for society is to have a rapid renegotiation between the
financiers, to finance the going concern using a new arrangement
of liabilities and with a new management team. If this cannot be
done, the best outcome for society is a rapid liquidation. When
such arrangements can be put into place, the market process of G
creative destruction will work smoothly, with greater competitive
vigor and greater competition.”
76. The speech of the Hon’ble Minister on the floor of the House
of the Rajya Sabha also reflected the fact that with the passage of time
the original intent of quick resolution of stressed assets is getting diluted. H
398 SUPREME COURT REPORTS [2019] 16 S.C.R.

A It is therefore essential to have time-bound decisions to reinstate this
legislative intent. It was also pointed out on the floor of the House that
the experience in the working of the Code has not been encouraging.
The Minister in her speech to the Rajya Sabha gives the following facts
and figures:
B “Now, regarding the Corporate Insolvency Resolution Process
(CIRP), under the Code, I want to give you data again as of
30th June, 2019. First, I will talk about the status of CIRPs.
Number of admitted cases is 2162; number of cases closed on
appeal, which I read out about, is 174; number of cases closed
C by withdrawal under Section 12A, is 101, I have given you a
slightly later data; number of cases closed by resolution is 120;
closed by liquidation, 475; and ongoing CIRPs are 1292. So, now,
I would like to mention the number of days of waiting. I would
like to mention here the details of the ongoing CIRPs, along with
the timelines. Ongoing CIRPs are 1,292, the figure just now I
D gave you. Over 330 days, 335 cases; over 270 days, 445 cases;
over 180 days and less than 270 days, 221 cases; over 90 days
but less than 180 days, 349 cases; less than 90 days, 277 cases.
The number of days’ pending includes time, if any, excluded by
the tribunals. So, that gives you a picture on what is the kind of
E wait and, therefore, why we want to bring the Amendments for
this speeding up.”
Mrs. Madhvi Divan also pointed out that the Hon’ble Minister’s
speech had also adverted to the strengthening of the NCLT as follows:
“In view of the increasing number of cases, the Government has
F
increased the number of benches of NCLT from 10 to 15, during
just the last one year. In one year, we have increased it from 10
to 15. The number of members has also been increased in a
phased manner. Recently, 26 new members have joined bringing
the total number of members to 52. Sir, more than one court has
G been operationalised in the benches where a large number of
cases are pending, such as, in Mumbai, Delhi, Chennai and
Kolkata. The projects like e-governance and e-courts have also
been implemented for faster and speedier disposal of the cases.”
77. Shri Sibal vehemently objected to any reliance on the speech
H of the Minister and cited K.P. Varghese v. ITO (1982) 1 SCR 629
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 399
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

and K.S. Paripoornan v. State of Kerala (1994) 5 SCC 593. In A
Varghese (supra) this Court held, at page 645, as follows:
“…Now it is true that the speeches made by the Members of
the Legislature on the floor of the House when a Bill for enacting
a statutory provision is being debated are inadmissible for the
purpose of interpreting the statutory provision but the speech B
made by the Mover of the Bill explaining the reason for the
introduction of the Bill can certainly be referred to for the purpose
of ascertaining the mischief sought to be remedied by the
legislation and the object and purpose for which the legislation is
enacted. This is in accord with the recent trend in juristic thought
C
not only in western countries but also in India that interpretation
of a statute being an exercise in the ascertainment of meaning,
everything which is logically relevant should be admissible. In fact
there are at least three decisions of this Court, one in Loka
Shikshana Trust v. CIT [(1976) 1 SCC 254 : 1976 SCC (Tax)
14 : 101 ITR 234 : 1976 LR 1] , the other in Indian Chamber D
of Commerce v. Commissioner of Income Tax [(1976) 1 SCC
324 : 1976 SCC (Tax) 41 : 101 ITR 796 : 1976 Tax LR 210] and
the third in Additional Commissioner of Income Tax v. Surat
Art Silk Cloth Manufacturers’ Association [(1980) 2 SCC 31
: 1980 SCC (Tax) 170 : 121 ITR 1] where the speech made by
the Finance Minister while introducing the exclusionary clause E
in Section 2, clause (15) of the Act was relied upon by the Court
for the purpose of ascertaining what was the reason for
introducing that clause.”
In Paripoornan (supra), the Court held as follows:
F
“77. In support of the construction placed on Section 23(1-A)
of the principal Act and Section 30(1) of the amending Act in
Zora Singh [(1992) 1 SCC 673] the learned counsel for the
claimants have referred to the Statement of Objects and Reasons
appended to the Bill in 1982 as well as the Bill of 1984 and have
submitted that the said Statement of Objects and Reasons show G
that the object underlying the enactment of Section 23(1-A) was
to remove the hardship to the affected parties on account of
pendency of acquisition proceedings for a long time which renders
unrealistic the amounts of compensation offered to them. Our
attention has also been invited to the speeches made by members H
400 SUPREME COURT REPORTS [2019] 16 S.C.R.

A at the time when the Bill was considered and was adopted by
Parliament. It has been urged that a construction which advances
the said object must be adopted. We are unable to accept this
contention. As regards the Statement of Objects and Reasons
appended to the Bill the law is well settled that the same cannot
be used except for the limited purpose of understanding the
B
background and the state of affairs leading to the legislation but
it cannot be used as an aid to the construction of the statute.
(See Aswini Kumar Ghosh v. Arabinda Bose [1953 SCR 1,
28 : AIR 1952 SC 369] ; State of W.B. v. Subodh Gopal Bose
[1954 SCR 587, 628 : AIR 1954 SC 92] per Das, J.; State of
C W.B. v. Union of India [(1964) 1 SCR 371, 383 : AIR 1963 SC
1241] .) Similarly, with regard to speeches made by the members
in the House at the time of consideration of the Bill it has been
held that they are not admissible as extrinsic aids to the
interpretation of the statutory provisions though the speech of the
mover of the Bill may be referred to for the purpose of finding
D
out the object intended to be achieved by the Bill. (See State of
Travancore-Cochin v. Bombay Co. Ltd. [1952 SCR 1112 : AIR
1952 SC 366] and Aswini Kumar v. Arabinda Bose [1953 SCR
1, 28 : AIR 1952 SC 369] .) On a perusal of the Bills of 1982
and 1984 we find that they did not contain the provisions found
E in Section 23(1-A) of the principal Act and Section 30(1) of the
amending Act. These provisions were inserted when the 1984
Bill was under consideration before Parliament. The Statement
of Objects and Reasons does not, therefore, throw any light on
the circumstances in which these provisions were introduced.”
F As the speech of the Hon’ble Minister on the floor of the House
only indicates the object for which the amendment was made and as it
contains certain data which it is useful to advert to, we take aid from
the speech not in order to construe the amended Section 12, but only
in order to explain why the Amending Act of 2019 was brought about.
G 78. Given the fact that timely resolution of stressed assets is a
key factor in the successful working of the Code, the only real argument
against the amendment is that the time taken in legal proceedings cannot
ever be put against the parties before the NCLT and NCLAT based
upon a Latin maxim which sub-serves the cause of justice namely, actus
H curiae neminem gravabit.
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 401
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

79. In Atma Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC A
284, this Court applied the maxim to time taken in legal proceedings
under the Haryana Urban (Control of Rent and Eviction) Act, 1973,
holding:
“8. It is well-settled that no man should suffer because of the
fault of the court or delay in the procedure. Broom has stated B
the maxim “actus curiae neminem gravabit” — an act of court
shall prejudice no man. Therefore, having regard to the time
normally consumed for adjudication, the ten years’ exemption or
holiday from the application of the Rent Act would become
illusory, if the suit has to be filed within that time and be disposed
C
of finally. It is common knowledge that unless a suit is instituted
soon after the date of letting it would never be disposed of within
ten years and even then within that time it may not be disposed
of. That will make the ten years holiday from the Rent Act illusory
and provide no incentive to the landlords to build new houses to
solve problem of shortages of houses. The purpose of legislation D
would thus be defeated. Purposive interpretation in a social
amelioration legislation is an imperative irrespective of anything
else.”
Likewise, in Sarah Mathew v. Institute of Cardio Vascular
Diseases, (2014) 2 SCC 62, this Court held that for the purpose of E
computing limitation under Section 468 of the Code of Criminal
Procedure, 1973 the relevant date is the date of filing of the complaint
and not the date on which the Magistrate takes cognizance, applying
the aforesaid maxim as follows:
“39. As we have already noted in reaching this conclusion, light F
can be drawn from legal maxims. Legal maxims are referred to
in Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003)
8 SCC 559 : 2004 SCC (Cri) 39] , Japani Sahoo [Japani Sahoo
v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 : (2007) 3 SCC
(Cri) 388] and Vanka Radhamanohari [Vanka Radhamanohari
v. Vanka Venkata Reddy, (1993) 3 SCC 4 : 1993 SCC (Cri) 571]. G
The object of the criminal law is to punish perpetrators of crime.
This is in tune with the well-known legal maxim nullum tempus
aut locus occurrit regi, which means that a crime never dies.
At the same time, it is also the policy of law to assist the vigilant
and not the sleepy. This is expressed in the Latin maxim H
402 SUPREME COURT REPORTS [2019] 16 S.C.R.

A vigilantibus et non dormientibus, jura subveniunt. Chapter
XXXVI CrPC which provides limitation period for certain types
of offences for which lesser sentence is provided draws support
from this maxim. But, even certain offences such as Section 384
or 465 IPC, which have lesser punishment may have serious
social consequences. The provision is, therefore, made for
B
condonation of delay. Treating date of filing of complaint or date
of initiation of proceedings as the relevant date for computing
limitation under Section 468 of the Code is supported by the legal
maxim actus curiae neminem gravabit which means that the
act of court shall prejudice no man. It bears repetition to state
C that the court’s inaction in taking cognizance i.e. court’s inaction
in applying mind to the suspected offence should not be allowed
to cause prejudice to a diligent complainant. Chapter XXXVI thus
presents the interplay of these three legal maxims. The provisions
of this Chapter, however, are not interpreted solely on the basis
of these maxims. They only serve as guiding principles.”
D
Both these judgments have been followed in Neeraj Kumar
Sainy v. State of Uttar Pradesh (2017) 14 SCC 136 at paragraphs
29 and 32. Given the fact that the time taken in legal proceedings cannot
possibly harm a litigant if the Tribunal itself cannot take up the litigant’s
case within the requisite period for no fault of the litigant, a provision
E which mandatorily requires the CIRP to end by a certain date - without
any exception thereto - may well be an excessive interference with a
litigant’s fundamental right to non-arbitrary treatment under Article 14
and an excessive, arbitrary and therefore unreasonable restriction on a
litigant’s fundamental right to carry on business under Article 19(1)(g)
F of the Constitution of India. This being the case, we would ordinarily
have struck down the provision in its entirety. However, that would then
throw the baby out with the bath water, inasmuch as the time taken in
legal proceedings is certainly an important factor which causes delay,
and which has made previous statutory experiments fail as we have
seen from Madras Petrochem (supra). Thus, while leaving the
G provision otherwise intact, we strike down the word “mandatorily” as
being manifestly arbitrary under Article 14 of the Constitution of India
and as being an excessive and unreasonable restriction on the litigant’s
right to carry on business under Article 19(1)(g) of the Constitution.
The effect of this declaration is that ordinarily the time taken in relation
H to the corporate resolution process of the corporate debtor must be
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 403
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

completed within the outer limit of 330 days from the insolvency A
commencement date, including extensions and the time taken in legal
proceedings. However, on the facts of a given case, if it can be shown
to the Adjudicating Authority and/or Appellate Tribunal under the Code
that only a short period is left for completion of the insolvency resolution
process beyond 330 days, and that it would be in the interest of all
B
stakeholders that the corporate debtor be put back on its feet instead
of being sent into liquidation and that the time taken in legal proceedings
is largely due to factors owing to which the fault cannot be ascribed to
the litigants before the Adjudicating Authority and/or Appellate Tribunal,
the delay or a large part thereof being attributable to the tardy process
of the Adjudicating Authority and/or the Appellate Tribunal itself, it may C
be open in such cases for the Adjudicating Authority and/or Appellate
Tribunal to extend time beyond 330 days. Likewise, even under the
newly added proviso to Section 12, if by reason of all the aforesaid
factors the grace period of 90 days from the date of commencement
of the Amending Act of 2019 is exceeded, there again a discretion can
D
be exercised by the Adjudicating Authority and/or Appellate Tribunal
to further extend time keeping the aforesaid parameters in mind. It is
only in such exceptional cases that time can be extended, the general
rule being that 330 days is the outer limit within which resolution of the
stressed assets of the corporate debtor must take place beyond which
the corporate debtor is to be driven into liquidation. E
80. When it comes to the validity of the substitution of Section
30(2)(b) by Section 6 of the Amending Act of 2019, it is clear that the
substituted Section 30(2)(b) gives operational creditors something more
than was given earlier as it is the higher of the figures mentioned in
sub-clauses (i) and (ii) of sub-clause (b) that is now to be paid as a F
minimum amount to operational creditors. The same goes for the latter
part of sub-clause (b) which refers to dissentient financial creditors.
Mrs. Madhavi Divan is correct in her argument that Section 30(2)(b)
is in fact a beneficial provision in favour of operational creditors and
dissentient financial creditors as they are now to be paid a certain G
minimum amount, the minimum in the case of operational creditors being
the higher of the two figures calculated under sub-clauses (i) and (ii)
of clause (b), and the minimum in the case of dissentient financial
creditor being a minimum amount that was not earlier payable. As a
matter of fact, pre-amendment, secured financial creditors may
cramdown unsecured financial creditors who are dissentient, the majority H
404 SUPREME COURT REPORTS [2019] 16 S.C.R.

A vote of 66% voting to give them nothing or next to nothing for their
dues. In the earlier regime it may have been possible to have done this
but after the amendment such financial creditors are now to be paid
the minimum amount mentioned in sub-section (2). Mrs. Madhavi Divan
is also correct in stating that the order of priority of payment of creditors
B mentioned in Section 53 is not engrafted in sub-section (2)(b) as
amended. Section 53 is only referred to in order that a certain minimum
figure be paid to different classes of operational and financial creditors.
It is only for this purpose that Section 53(1) is to be looked at as it is
clear that it is the commercial wisdom of the Committee of Creditors
that is free to determine what amounts be paid to different classes and
C sub-classes of creditors in accordance with the provisions of the Code
and the Regulations made thereunder.
81. As has been held in this judgment, it is clear that Explanation
1 has only been inserted in order that the Adjudicating Authority and
the Appellate Tribunal cannot enter into the merits of a business decision
D of the requisite majority of the Committee of Creditors. As has also
been held in this judgment, there is no residual equity jurisdiction in the
Adjudicating Authority or the Appellate Tribunal to interfere in the merits
of a business decision taken by the requisite majority of the Committee
of Creditors, provided that it is otherwise in conformity with the
E provisions of the Code and the Regulations, as has been laid down by
this judgment.
82. Equally, Explanation 2 applies the substituted Section to
pending proceedings either at the level of the Adjudicating Authority or
the Appellate Authority or in a Writ or Civil Court. As has been held in
F Swiss Ribbons (supra) and ArcelorMittal India (supra) (see
paragraph 97 of Swiss Ribbons (supra) and paragraph 82, 84 of
ArcelorMittal India (supra)), no vested right inheres in any resolution
applicant to have its plan approved under the Code. Also, the Federal
Court in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri
AIR 1941 FC 5 and later, this Court in Shiv Shakti Coop. Housing
G
Society, Nagpur v. Swaraj Developers & Ors. (2003) 6 SCC 659
(at paragraphs 16 and 17) have held that an appellate proceeding is a
continuation of an original proceeding. This being so, a change in law
can always be applied to an original or appellate proceeding. For this
reason also, Explanation 2 is constitutionally valid, not having any
H retrospective operation so as to impair vested rights.
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 405
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

83. The challenge to sub-clause (b) of Section 6 of the Amending A
Act of 2019, again goes to the flexibility that the Code gives to the
Committee of Creditors to approve or not to approve a resolution plan
and which may take into account different classes of creditors as is
mentioned in Section 53, and different priorities and values of security
interests of a secured creditor. This flexibility is referred to in the B
BLRC report, 2015 (see paragraph 33 of this judgment). Also, the
discretion given to the Committee of Creditors by the word “may” again
makes it clear that this is only a guideline which is set out by this sub-
section which may be applied by the Committee of Creditors in arriving
at a business decision as to acceptance or rejection of a resolution plan.
For all these reasons, therefore, it is difficult to hold that any of these C
provisions is constitutionally infirm.
The resolution plan of ArcelorMittal as amended and
objections thereto
84. The resolution plan submitted by ArcelorMittal on 02.04.2018 D
proposed an upfront payment of INR 35,000 crores towards resolution
of the debt of INR 49,213 crores of financial creditors. This was
buttressed by a letter of commitment from Credit Agricole Corporate
and Investment Bank. From this upfront cash recovery, unsecured
financial creditors were to be paid only an aggregate amount of 5% of
their admitted claims. Apart from this, INR 8,000 crores of upfront fresh E
capital infusion for improving operations and enhancing revival prospects
of the corporate debtor was also proposed. So far as operational
creditors were concerned, it was proposed that workmen and employees
were to be paid INR 18 crores in full against their admitted claims,
and out of other operational creditors, those small trade creditors defined F
as “having admitted claims of less than INR 1 crore” were to be paid
in full, as opposed to trade and government creditors of over INR 1
crore, who were to be paid aggregate amount INR 196 crores. Other
operational creditors were to be given nothing, liquidation value being
payable to operational creditors as a class being in any case nil (INR
G
3339 crores were the aggregate admitted claims of all operational
creditors as a class). Under the caption “Treatment of various stake
holders” the plan provided as follows:-
“VIII. Treatment of Various Stakeholders”
xxx xxx xxx H
406 SUPREME COURT REPORTS [2019] 16 S.C.R.

A Stake holder Proposed Treatment

Financial Creditors As per the Liquidation Value of the Corporate
Debtor, the Secured Financial Creditors would
realize amounts which were lower than the current
outstandings on a cumulative basis. However, the
Resolution Applicant recognizes the sacrifices
B already made by the Financial Creditors till date and
the fact that debt restructuring attempts by the
Financial Creditors have failed in the past. The
Resolution Applicant is proposing to pay the Secured
Financial Creditors, the amounts stated under Section
V which is significantly higher than the reconvenes
that the Secured Financial Creditors as a class would
C realize in case of liquidation. The payments proposed
to be made by the Resolution Applicant to the
unsecured Financial Creditors is also higher than the
recoveries that the unsecured Financial Creditors as a
class would realize in case of liquidation, since the
Liquidation Value realizable by unsecured Financial
D Creditors is nil.

The Resolution Applicant has empowered the
Committee of Creditors to decide the manner in
which the financial package being offered by the
Resolution Applicant to the Financial Creditors will
be distributed to the Secured Financial Creditors. All
E such allocations to the Financial Creditors will be
binding on all stakeholders.

The unsecured Financial Creditors (including those
Secured Financial Creditors who may have claims
admitted against unsecured instruments) i.e. Standard
Chartered Bank. The Bank of New York Mellon,
F London Branch, AXIS bank, ICICI Bank. Bank of
Baroda, SBI Rupee Notes and Individual Rupee
Notes to Melwani Gopal Thrumal and /or Melwani
Vinod, Mr. Arvinlal N Shah & Mrs. Indumati A
Shah, Mr. jiwat k Dansanghani and Mrs. Neetu J
Dhansanghani and Nathu Ram Verma, who have
G Admitted claims as of 28 February 2018 (based on
document 2.5.8 uploaded on VDR on 6 March 2018
which provides Breakup of Secured and Unsecured
financial Creditors), shall be paid an aggregate
amount of 5% of their Admitted Claims.

H
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 407
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

Furthermore, in accordance with the RFP, it is A
clarified that:

a) any surplus cash being the positive
difference between actual working capital
of the Corporate Debtor as on Plan
Approval Date and normalized working B
capital as at 31 December 2017, shall be
added to upfront cash recovery as a closing
adjustment under the Resolution Plan; and
b) the EBITDA generated by the
Corporate Debtor between the Plan
Approval Date and the date on which the
Financial Creditors are paid the up-front C
cash amount shall be available to the
Financial Creditors over and above the
upfront cash recovery under the Resolution
Plan.

However, notwithstanding anything stated herein, a
D
Dissenting Financial Creditor will be entitled to only
receive Liquidation Value realizable by such
Financial Creditor in case of liquidation of the
Corporate Debtor, which shall be paid out of the
upfront cash recovery amount being offered.

Operational The Resolution Applicant recognizes the role that the E
Creditors (other various Trade Creditors have played in connection
than Workmen, with the business of the Corporate Debtor. Whilst
Employees and Operational Creditors as a class of Creditors would
Governmental receive nil returns on liquidation of the Corporate
Operational Debtor, the Resolution Applicant has agreed to settle
Creditors) part of the Admitted Claims to the extent set out in F
Section V above. Without prejudice to the above, the
Resolution Applicant is desirous of setting aside
amounts under the financial package to settle at least
part of the Claims of the small Trade Creditors. This
class of Trade Creditors are being provided such
payments since the Resolution applicant understands
that these Persons typically form a part of small G
scale/medium sector enterprises, which enterprises
play a key role in the Indian economy and given their
scale of operations may not be in a position to
weather macroeconomic and financial shocks.

H
408 SUPREME COURT REPORTS [2019] 16 S.C.R.

A The identified Trade Creditors are being paid out
on the assumption that they will continue their
arrangements with the Corporate Debtor and shall
in no manner commit any acts or omissions which
would adversely impact the business of the
Corporate Debtor. Acceptance of payments by the
B Trade Creditors shall be considered as an
acceptance of the above condition.

The Resolution Applicant recognizes and
understands that additional payment to certain
Operational Creditors may have to be made as a
part of revitalising the business and is prepared to
C do so, on a case by case basis.

Governmental The Resolution Applicant aims at establishing a
Operational good working relationship between the
Creditors Governmental Authorities and the Corporate
Debtor and will cause the Corporate Debtor to
D duly pay the statutory dues that will be incurred by
the Corporate Debtor going forward from the Plan
Approval Date in a timely manner. The revival of
the Corporate Debtor will also enhance the tax
collection by the Governmental Authorities in the
geographies where the Corporate Debtor operates.
E 85. On 22.10.2018, various changes were made in the original
resolution plan as follows:
“The representatives of AM India of AM India thanked the RP.
Thereafter, they presented a brief summary of the revisions made
to the financial proposal. They informed that as per the directives
F of the CoC, AM India had deliberated and negotiated with the
Sub-Committee. Thereafter, the representative highlighted certain
key revisions made to the resolution plan, which inter alia
included revisions in relation to (a) upfront cash recovery available
to secured and unsecured financial creditors of ESIL; (b) upfront
fresh capital infusion; (c) process of closing adjustment, which
G included provision of audit. He further added that they had not
provided how the upfront cash would be distributed and the same
has been left at the discretion of the CoC. He further added that
the business plan has not undergone any substantial changes and
the negotiations were largely around the financial proposal and
H that AM India is committed to implement the plan, as agreed.
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 409
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

Thereafter, the representative of AM India also deliberated with A
the members of the CoC regarding the revised financial proposal
and responded to the queries raised in relation thereto.”
It was stated that the value and quality of security should be the
basis on which proceeds should be distributed by most of the secured
financial creditors. This amended resolution plan was approved by a B
majority of 92.24% of financial creditors. The sharing ratio between
secured financial creditors having charge on project assets of the
corporate debtor was 99.86% as opposed to 0.14%, so far as Standard
Chartered Bank was concerned, which only had a charge on the pledge
of shares of ESOL, being an offshore subsidiary of the corporate
debtor. The upfront payment to secured financial creditors on the C
effective date would now be INR 41,909.29 crores and INR 60.71
crores to Standard Chartered Bank. It was pointed out that this was
based on the worth of those shares as security, being only INR 24.86
crores. The reasons given for acceptance of this amended resolution
plan was stated as follows: D
“By majority consensus of COC (except Standard Chartered
Bank and SREI), it was agreed that fairness of distribution would
be reflected only if distribution be made based on underlying
security value and quality of security. Based on a comparison of
the two suggested options based on fair value and liquidation E
value, in the interest of all stake holders and with the objective
of the Code it is proposed to the COC to accept the sharing ratio
as per the Liquidation Valuation Report and also to Secured
Financial Creditors having Charge on Project Asset of ESIL for
taking a sacrifice of Rs.37.76 Crores (for adopting the sharing
ratio as per the Liquidation Valuation Report instead of fair value) F
which shall be allocated to Secured Financial Creditors having
Charge on Pledge of Shares of ESOL.
While allocation of the Resolution Amount it is pertinent to note
that the Committee of creditors has the widest discretion to
determine the terms of the resolution plan. G
A. At the outset it is important to be noted that the
legislature in their wisdom under the provisions of the
Insolvency and Bankruptcy Code, 2016 (Code) have left
the decision-making in respect of commercial matters
completely in the domain of the Committee of Creditors H
410 SUPREME COURT REPORTS [2019] 16 S.C.R.

A (COC). In fact even the Bankruptcy Law Reforms
Committee report (which formed the basis for the
enactment of the Code) specifically notes the deliberate
scheme of the Code, where the law does not prescribe
any particular manner of insolvency resolution and
leaves this commercial decision making process to the
B
COC without the interference of the legislature as well
as judiciary.
B. Further, pro rate distribution cannot be the only method
of distribution of assets, as it would lead to the disastrous
consequences where the creditors would lose their
C
freedom to restructure the debt as they deem fit. This
an important commercial decision which is required to
be made by the Code and a strait jacket formula for all
cases would result in dilution of the provisions of the
Code and would incentivize all secured creditors to
D liquidate the company rather than opt for resolution. It
was noted that generally all secured financial creditors
are prudent entities which grant loans after exercising
due-diligence and are presumed to be able to evaluate
their interest and risks sufficiently. Moreover it may
negatively impact the credit market and discourage
E banks and other financial creditors from granting large
project loans which are more often than not granted
against property or other valuable collateral.
C. The Report of the Insolvency Law Committee provides
valuable insights on the principles governing inter-
F creditor agreements and their relevance to distribution
arrangements. In practice, subordination agreements
inter-se creditors were respected in practice. This was
also the stated position in insolvency resolution
proceedings other jurisdiction and in other developed
G countries.
D. The Hon’ble National Company Law Appellate Tribunal
has held that the COC has the discretion to approve any
resolution plan and its decision to approve the same
cannot be interfered with by the Adjudicating Authority
H or the Appellate Authority, except for in terms of Section
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 411
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

31(1) to examine compliance of Section 30(2) read with A
relevant regulations. (See Kannan Tiruvengandram Vs.
M.K. Shah Exports Ltd. & Ors. in and Darshak
Enterprise Pvt. Ltd. and Ors. v. Chhaparia Industries
Pvt. Ltd. and Ors.
E. The Code specifically provides the COC with the power B
under section 30(4) of the Code, to approve a resolution
with requisite majority as set out thereunder. It is an
accepted position in law, and as enunciated in various
pronouncements of the Supreme Court of India that
where a power is conferred or a duty is imposed by a
C
statute, and there is nothing expressly inhibiting the
exercise of the power or the performance of the duty
by any limitations or restrictions it is reasonable to hold
that it carries with it all power of doing all such acts or
employing all such means as are reasonably necessary
for its execution. The below mentioned provisions of the D
Code and the Insolvency and Bankruptcy Board of India
(Insolvency Resolution Process for Corporate Persons).
Regulation 2016 (CIR Regulations) set out the powers
of the COC in this regard:
Section 31 of the Code (Approval of Resolution Plan): E
“(1) If the Adjudicating Authority is satisfied that the resolution
plan as approved by the committee of creditors under sub-section
(4) of section 30 meets the requirements as referred to in sub-
section (2) of section 30, it shall by order approve the resolution
plan which shall be binding on the corporate debtor and its F
employees, members, creditors, guarantors and other stakeholders
involved in the resolution plan.
Regulation 39 of the CIR Regulations, 2016;
“(2) The resolution professional shall present all resolution plans G
that meet the requirements of the Code and these Regulations
to the Committee for its consideration.
(3) The committee may approve any resolution plan with such
modifications as it deems fit
xxx xxx xxx H
412 SUPREME COURT REPORTS [2019] 16 S.C.R.

A K. It is a recognized principle of insolvency law that
creditor rights and ranking of priority claims existing
before commencement of insolvency must be recognized
and respected in the insolvency proceedings. Recognition
of such ranking of priorities of existing and post-
commencement creditor claims provide predictability to
B
lenders and ensure consistent application of the rules,
create confidence in the proceedings and enable
participants to adopt appropriate measures to manage
risk. At macro level, it helps create certainty in the
market and facilitate the provision of credit, in particular
C with respect to the rights and priorities of secured
creditors. It is also well established that best practices
require that priority to claims that are not based on
commercial bargains should be minimalized. This
principle is unequivocally articulated in the United
Nations Commission on International Trade Law
D (UNCITRAL) Legislative Guide on Insolvency law
(hereinafter, the “UNCITRAL Guide”) in the chapter
that recommends the policy and legislative design of the
“key objectives and structure of an effective and
efficient insolvency law”
E L. Further, in recognition of the principle that creditor rights
and ranking of priority claims existing before
commencement of insolvency must be recognised and
expected in the insolvency proceedings. To protect/
respect the creditor rights and ranking of priority claims,
F the IBC does not in any manner impose any prescription,
mandatory or otherwise on the resolution applicant that
would be disruptive of the creditor rights and priority
claims of the secured creditors as on insolvency
commencement date. If this rule was not to be
recognised, it will lead to a free-for-all situation, no short
G of chaos, as any rights on differential security interest
would then be ignored.
M. Therefore in conclusion, since the Code provides the
COC with the power to approve a resolution for the
Corporate Debtor, the manner in which such resolution
H shall be executed including but not limited to the decision
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 413
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

as to the methodology of distribution or the amount a A
money to be paid to individual stakeholders would also
be a decision which the COC would be permitted to take,
especially in the absence of any express provision in the
Code prohibiting such a decision by the COC. As long
as such decisions are not contrary to the provisions of
B
the Code.”
86. The final resolution plan as approved on 23.10.2018 was as
follows - in the place of INR 35,000 crores to be paid on the effective
date as an upfront amount, INR 39,500 crores and INR 2500 crores,
aggregating INR 42,000 crores was to be paid. The resolution applicant
agreed that the Committee of Creditors will decide the manner in which C
the financial package being offered by the resolution applicant to financial
creditors will be distributed to secured financial creditors. The payment
of INR 17.4 crore was to be made to unsecured financial creditors with
a claim amount of more than INR 10 lakhs, and INR 30.55 lakhs to
such creditors with a claim amount of less than INR 10 lakhs, with the D
fresh capital infusion for improving operations and enhancing revival
prospects of the corporate debtor remaining at INR 8,000 crores. So
far as operational creditors were concerned, there was no change made.
87. At the 22nd meeting of the Committee of Creditors dated
27.03.2019, the NCLT order of 08.03.2019 was discussed and it was E
felt that INR 1,000 crores extra be paid for operational creditors over
and above INR 1 crore each, as follows:
“The representative of EARC mentioned that without prejudice
to the appeals, a lump sum amount may be set-aside and put to
vote as they are not averse to examining it. The representative F
of SBI concurred with the views of the representative of EARC.
He further mentioned that CoC as well as SCB has challenged
the NCLT Order. SBI proposed to set aside a capped amount
of INR 1,000 Crore for operational creditors (without prejudice
to their right to appeal). He requested that a resolution to that
effect may be voted upon. G
The RP requested the SBI representative to clarify if the
proposed amount of INR 1,000 Crore would be over and above
the INR 196 Crore which is already included in the Resolution
Plan for operational creditors. The SBI representative confirmed
that the same would be over and above the current proposal, H
414 SUPREME COURT REPORTS [2019] 16 S.C.R.

A however this additional amount will be capped to INR 1,000
crores.”
Under the caption “discussion on the suggestions of the Hon’ble
NCLT in relation to distribution of amounts proposed to be paid to
financial creditors”, the minutes of the meeting reflect that the
B Committee of Creditors had sought for and obtained the opinion of
retired Justice B.N. Srikrishna. This opinion dated 23.03.2019 stated
as follows:
“In view of this peculiar situation, where a financial creditor has
advanced money to the corporate debtor assessing the
C commercial risk and covers his risk by a charge on the assets
of the corporate debtor, there can be no question of his being
entitled to the liquidation value or any other fixed value towards
his debt. In any event, the plan formulated by the resolution
applicant, has to be placed before the COC for its final approval.
It is at that juncture the commercial wisdom of lenders forming
D the COC comes into play and they are entitled to take a call on
either to approve or not to approve the resolution plan which the
FRP has put forward before the COC for its approval. In my
view, therefore, the Approved Resolution Plan would be fully
justified in classifying between secured and unsecured financial
E creditor, and also according to the value of their securities and
apportioning the amounts payable to them in the best manner
which is considered reasonable. I might add here that irrespective
of what the RP considers as reasonable, it is always open to the
COC to adjudge the commercial wisdom of the resolution plan
while approving it. As pointed out by the Supreme Court in K.
F Sashidhar vs Indian Overseas Bank & Ors. (Civil Appeal No.
10673 of 2018) such commercial decision of the COC is not
subject to appeal under the Code.
In the premises, I am of the opinion that SCB was differently
placed than other financial creditors in view of the fact it did not
G have any charge or security on the project assets but had
advanced a large amount of loan amounting to Rs.3000 crores
on the basis of the pledge over the shares of an offshore
company and a corporate guarantee extended by the Corporate
Debtor. The resolution plan as finally approved by COC was fully
H justified in treating SCB as differently placed based on the cogent
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 415
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

and intelligible differentia that is apparent from the facts of the A
case. I see nothing in the provisions of the Code of the
Regulations which would militate against the decision taken by
the COC.
I might add here that the commercial wisdom of the lenders who
are voting for the resolution of the COC is evidenced by the fact B
that they had created securities on the project assets of the
Corporate Debtor after assessing the commercial risk involved.
In the case of SCB, however, there seems to have been gross
under security for the large amount of Rs.3000 crores by merely
seeking a corporate guarantee from the Corporate Debtor along
with a charge only on the shares of the offshore company held C
by the Corporate Debtor, wherein the liquidation value of such
shares is a mere Rs.60.71 crores. In fact, in view of the fact
situation, I find it hard to understand whether SCB can really be
treated as a secured creditor in the first place. I am of the
opinion that even if the corporate guarantee were to be enforced, D
SCB would at best stand as a secured creditor only to the extent
of the value of the shares of the offshore company as on the
date of enforcement of the guarantee and as an unsecured
creditor with respect to the rest of the loan advanced by it. This
is an equally valid consideration which might have moved the
COC while approving the resolution plan by which the ultimate E
discretion for distribution is left to the COC with a declaration
that such allocation to the financial creditors will be binding on
all stake holders, which also would include SCB.
xxx xxx xxx
F
In the facts and circumstances, I am of the opinion that the
manner in which the resolution plan was formulated and approved
by the overwhelming majority of 92.24% of the voting creditors,
is not only perfectly justified but is also equitable. As the
Supreme Court has pointed out in Swiss Ribbons (supra),
“equitable” does not mean equal distribution; it means distribution G
which does justice to every stakeholders involved in the process.
In my opinion, mere equal distribution would definitely do injustice
to the large majority of 92.24% shareholders who in their
commercial wisdom had ensured that the security was created
on project assets, while SCB was content with creating a charge H
416 SUPREME COURT REPORTS [2019] 16 S.C.R.

A only on the shares of the offshore company and seeking a
corporate guarantee from the Corporate Debtor.”
88. The aforesaid opinion was shared with all Committee of
Creditors members including Standard Chartered Bank. Importantly, the
minutes record:
B
“At this point, the representative from Canara Bank stated that
he requires clarity on the following questions before he can
consider the revised apportionment to SCB: (a) Whether any
NOCs were taken from the lenders before taking corporate
guarantee, as it is a financial covenant in the sanctions of the
C lenders? (b) When SCB had funded Essar Steel Offshore Ltd.
(ESOL), whether SCB had not taken security of Trinity coal
mines as collateral, and the cash flows and credentials from the
assets as security? (c) What is the end-use of the loan and was
that end-use ensured? At what stage is the project? Were the
D funds really invested in the project?
xxx xxx xxx
The representatives of SCB raised issue of valuation and
mentioned that value of above INR 24 crores of ESOL shares
has not been estimated appropriately and is erroneous. The value
E
has been estimated based on desktop valuation and the valuer
has not considered valuation of underlying assets. A valuation
report of equity of Trinity was shared by RP after receipt of same
from Corporate Debtor which shows value in excess of USD
600 mn.
F
xxx xxx xxx
Further, the representatives of EARC added that they required
clarify as to whether the underlying loans has been enforced
against the principal borrower and whether any money has been
G recovered from the principal borrower. SCB representative
replied that these questions were not relevant at this time and
they were choosing not to answer these questions. SBI
representative pointed out that these questions have been raised
earlier and SCB has never replied to these queries.

H xxx xxx xxx
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 417
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

After several requests of the lenders, it was noted that SCB A
declined to share the documents and did not answer any of the
questions as asked by the members of the CoC stating that the
same were irrelevant at this stage.
xxx xxx xxx
ICICI Bank also stated that it should be recorded that SCB B
rejected offer of INR 200 crores was not considered by SCB.
The representative of SBI mentioned that the proposal offered
by ICICI Bank in its individual capacity and not by other lenders.
The representative of SCB mentioned it is evident that the offer
was only hypothetical. C
It was also suggested by EARC that revised distribution to SCB
matter as per NCLT Order should also be voted upon and the
other lenders concurred with the same.”
(emphasis supplied)
D
Finally, the allocation of INR 1,000 crore extra to operational
creditors was approved by a majority of 70.73% of the Committee of
Creditors.
89. Given the aforesaid facts, Shri Sibal’s submissions on behalf
of Standard Chartered Bank, that the offer made by ArcelorMittal of
E
payment of INR 42,000 crores as upfront in order to pay 100% principal
outstanding of secured financial creditors of the corporate debtor cannot
be accepted. Given that Standard Chartered Bank was reclassified as
a secured financial creditor of the corporate debtor only on 10.09.2018
and that the aforesaid upfront payment of INR 42,000 crores would
include the principal amount payable to Standard Chartered Bank as F
well, we have seen how in the course of negotiation, the vast majority
of financial creditors have ultimately decided that Standard Chartered
Bank will only get an amount based on its security interest, which was
accepted by ArcelorMittal. Shri Sibal also argued that the final resolution
plan ultimately offered a sum of INR 39,500 crores instead of INR
G
42,000 crores, being a minimum upfront payment from which it was
possible to negotiate upwards but not downwards. We cannot arrive at
the conclusion that the acceptance of the resolution plan by the majority
of the Committee of Creditors should be set aside on this score, inter
alia, for the reason that Shri Sibal assured us that he was not attacking
the acceptance of the revised plan but only distribution of amounts H
418 SUPREME COURT REPORTS [2019] 16 S.C.R.

A payable under the said plan. This being so, it is also not possible to accept
the submission of Shri Sibal, that “feasibility and viability” of a resolution
plan will not include distribution of the amount of debt under the said
plan. It is also not possible to accept Shri Sibal’s submission that the
resolution plan must itself provide for distribution inter se between
secured financial creditors. It is enough that under the Code and the
B
Regulations, the resolution plan provides for distribution of amounts
payable towards debts based upon a classification of various types of
creditors. This both the original plan as well as the negotiated plan of
ArcelorMittal have already done, as has been seen by us hereinabove,
both plans containing the amount to be paid to workmen separately,
C operational creditors of INR 1 crore and less separately, operational
creditors of INR 1 crore and over separately and financial creditors,
subdivided into secured and unsecured as sub-classes, separately. All
that was left for distribution by ArcelorMittal was distribution inter se
between secured financial creditors which was then done by a majority
of 92.24%, as has been seen above based upon the value of their
D
respective security interests. Therefore, the allegation that the
Committee of Creditors relieved ArcelorMittal from the solemn offer
made before the Supreme Court by reducing the offer amount of INR
42,000 crores by INR 2,500 crores so that ArcelorMittal could acquire
the debts of OSPIL, is again a matter for negotiation being a business
E decision taken by the Committee of Creditors with ArcelorMittal. In
any case ultimately INR 35,000 crores was upped to INR 42,000 crores,
it being made clear in the final resolution plan that upfront payment of
INR 42,000 crores is a committed amount, even if working capital
adjustment turns out to be below INR 2,500 crores.
F 90. Shri Sibal also made an alternative submission that on the
facts of this case, a half-way house can be found so that Standard
Chartered Bank would get payment of something more above the value
of its security interest. The argument is that, assuming, whilst denying,
that classification amongst secured financial creditors is permissible,
such classification should be on the liquidation value of the security
G enjoyed by the creditor and the balance distributed to all secured
financial creditors pro-rata. This methodology of distribution has,
according to him, been applied in State Bank of India v. Orissa
Manganese and Minerals Ltd. CA(IB) No. 391/KB/2018, approved
by the NCLT and not disturbed by the NCLAT. Therefore, it is argued
H that, applying the aforesaid classification, the average liquidation value
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 419
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

of the security in the instant case, is to be as per the report of DUFF A
& Phelps and RBSA, being a sum of INR 15,838 crores. This, according
to him, is the amount required to be distributed to the secured financial
creditors according to the value of their respective security interests
(viz. first charge, second charge, subservient charge, residuary charge,
etc.) and the balance to be distributed pro-rata amongst all financial
B
creditors irrespective of their security. The sum of INR 42,000 crores
offered by ArcelorMittal would therefore, according to him, be a sum
of INR 15,838 crores paid over to the secured financial creditors
according to the value of their security and the balance amount of INR
26,162 crores would then have to be distributed amongst all financial
creditors on a pro-rata basis. C
91. What is important to note is that when one reads the
abovementioned judgment, it is a majority of 66% of the Committee of
Creditors who has exercised the discretion vested in it under the Code
in this particular manner, which has then correctly not been disturbed
by the NCLT and NCLAT. Far from helping Shri Sibal’s client, the D
principle that is applied in such a case is that ultimately it is the
commercial wisdom of the requisite majority of the Committee of
Creditors that must prevail on the facts of any given case, which would
include distribution in the manner suggested in Orissa Manganese
(supra). It is, therefore, not possible to accept the argument that the
Adjudicatory Authority and consequently the Appellate Authority would E
be vested with the discretion to apply what was applied by the
Committee of Creditors in the Orissa Manganese case (supra). This
submission is also devoid of merit and is, therefore, rejected.
92. The other argument of Shri Sibal that Section 53 of the Code
would be applicable only during liquidation and not at the stage of F
resolving insolvency is correct. Section 30(2)(b) of the Code refers to
Section 53 not in the context of priority of payment of creditors, but
only to provide for a minimum payment to operational creditors.
However, this again does not in any manner limit the Committee of
Creditors from classifying creditors as financial or operational and as
G
secured or unsecured. Full freedom and discretion has been given, as
has been seen hereinabove, to the Committee of Creditors to so classify
creditors and to pay secured creditors amounts which can be based
upon the value of their security, which they would otherwise be able to
realise outside the process of the Code, thereby stymying the corporate
resolution process itself. H
420 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 93.The other argument based upon serious conflict of interest
between secured and unsecured financial creditors, as the majority may
get together to ride roughshod over the minority, is an argument which
flies in the face of the majority of financial creditors being given
complete discretion over feasibility and viability of resolution plans, which
includes the manner of distribution of debts that is contained in them,
B
subject to following the provisions of the Code relating, inter alia, to
dealing with the interests of all stakeholders including operational
creditors. The Committee of Creditors does not act in any fiduciary
capacity to any group of creditors, as is sought to be suggested by Shri
Sibal. On the contrary, it is to take a business decision based upon ground
C realities by a majority, which then binds all stakeholders, including
dissentient creditors. It is important to note that the original threshold
required by way of majority was 75%. It is during the working of the
Code that this was found to be unrealistic and therefore reduced to
66% - see the amendments made to Section 28(3) and 30(4) of the
Code by the Insolvency and Bankruptcy Code (Second Amendment)
D
Act of 2018. For all these reasons therefore, it is not possible to accept
Shri Sibal’s arguments.
94. The NCLAT judgment which substitutes its wisdom for the
commercial wisdom of the Committee of Creditors and which also
directs the admission of a number of claims which was done by the
E resolution applicant, without prejudice to its right to appeal against the
aforesaid judgment, must therefore be set aside.
95. So far as Civil Appeal No. 6409 of 2019 is concerned, we
have perused paragraphs 70 to 76 of the impugned NCLAT judgment
to the effect that the cheques issued by the corporate debtor due to its
F payment obligation towards Bhandar Power Limited were not issued
with a view to secure any payment obligation of the principal borrower
i.e. EPGL, is a finding of fact which dislodges the claim of this appellant
to be regarded as a financial creditor. We find no infirmity in the
aforesaid finding. This appeal is consequently dismissed.
G 96. So far as Civil Appeal Diary No. 36838 is concerned, we
have perused the relevant documents and paragraphs 63 and 64 of the
impugned NCLAT judgment and find that the NCLAT has erred
inasmuch as it has added the claim of this Appellant to the tune of INR
861.19 crore despite the fact that the claim had already been admitted
H by the resolution professional thereby resulting in a double counting of
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 421
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

the debt of this Appellant. This being the position, we find it necessary A
to set aside this part of the impugned NCLAT judgment as well.
97. So far as Civil Appeal No. 6266 of 2019, we have perused
paragraphs 78 to 81 of the impugned NCLAT judgment and find no
reason to dislodge the finding of the NCLAT that the claim was filed
by the Appellant after the approval of the resolution plan. However, B
the NCLAT’s finding that the said claim is subject to arbitration and
that it was open for the Appellant to pursue the matter in terms of
Section 60(6) of the Code deserves to be aside in terms of this judgment.
This Appeal is consequently dismissed.
98. So far as Civil Appeal No. 6269 of 2019 is concerned, we C
have perused paragraphs 83, 84 and 196 of the impugned NCLAT
judgment and find force in the contention of the Appellant that there
has been an error in the impugned NCLAT judgment in as much as it
notes the claim amount, as admitted, as being a sum of INR 124.88
crores, but later in the same judgment notes the said amount as INR
2.47 crores based on a chart submitted by the resolution professional. D
This chart submitted by the resolution professional specifies the amount
of INR 2.47 crore (added after the NCLT judgment dated 08.03.2019),
which is in addition to the amount of INR 124.88 crores already admitted
by the resolution professional. Therefore, the NCLAT has erred in
noting INR 2.47 crore amount as the amount of the Appellant’s claim, E
and this part of the judgment also deserves to be set aside. Thus, the
claim of the appellant shall be the claim as admitted and registered by
the resolution professional. This apart, we find no merit in the submission
of the Appellant with respect to the sum of INR 121.72 crores as the
same has been rightly rejected by the NCLAT in view of the fact that
the said claim was filed after the completion of the CIRP period. F
However, the NCLAT’s judgment inasmuch as it left it open for the
Appellant to pursue the matter in terms of Section 60(6) of the Code
deserves to be aside in terms of this judgment. This Appeal is thus partly
allowed.
99. So far as Civil Appeal No. 7266 of 2019 and Civil Appeal G
No. 7260 of 2019 are concerned, the resolution professional has rejected
the claim of the Appellants on the ground of non-availability of duly
stamped agreements in support of their claim and the failure to furnish
proof of making payment of requisite stamp duty as per the Indian Stamp
Act despite repeated reminders having been sent by the resolution H
422 SUPREME COURT REPORTS [2019] 16 S.C.R.

A professional. The application filed by the Appellants before the NCLT
came to be dismissed by an order dated 14.02.2019 on the ground of
non-prosecution. The subsequent restoration application filed by the
appellants then came to be rejected by the NCLT through judgment
dated 08.03.2019 on two grounds: one, that the applications could not
be entertained at such a belated stage; and two, that notwithstanding
B
the aforementioned reason, the claim had no merit in view of the failure
to produce duly stamped agreements. The impugned NCLAT judgment,
at paragraphs 93 and 94, upheld the finding of the NCLT and the
resolution professional. In view of these concurrent findings, the claim
of the Appellants therefore requires no interference. Further, the
C submission of the Appellants that they have now paid the requisite stamp
duty, after the impugned NCLAT judgment, would not assist the case
of the Appellants at this belated stage. These appeals are therefore
dismissed.

100. So far as Writ Petition (Civil) No. 1064 of 2019 is concerned,
D we have perused the relevant documents and paragraph 36 of the
impugned NCLAT judgment and find force in the contention of the Writ
Petitioner that the NCLAT has wrongly noted that the claim amount
was notionally admitted by the resolution professional at INR 1 only.
The resolution professional has admitted the claim of the Writ Petitioner
E to a tune of INR 17.09 crore and the same is recorded in the list of
creditors prepared by the resolution professional. In view of the same,
this part of the NCLAT judgment is thus erroneous and the claim shall
be the claim as admitted and registered by the resolution professional.
The Writ Petition is thus allowed to this extent.
F 101. So far as Writ Petition (Civil) No. 1049 of 2019 is
concerned, the Petitioner is admittedly the operational creditor of one
Wind World India Ltd whose CIRP proceedings are pending before the
NCLT, Ahmedabad. The Petitioner has inter alia sought for permission
to raise various issues arising out of the facts of its own case (which
G has been raised before us herein) in the matter pending before the
NCLT. In view of the fact that this judgment has not opined on the
merits of the case of the Writ Petitioner pending before the NCLT, it
is open to the Writ Petitioner to raise all contentions as permissible under
the applicable law before the NCLT in the pending proceedings. This
H Writ Petition is thus allowed to this extent.
COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LTD. 423
v. SATISH KUMAR GUPTA [R. F. NARIMAN, J.]

102. So far as Dakshin Gujarat Vij Co. (Respondent No. 11 in A
Civil Appeal Diary No. 24417 of 2019), State Tax Officer (Respondent
No. 12 in Civil Appeal Diary No. 24417 of 2019), Gujarat Energy
Transmission Corporation Ltd. (Respondent No. 17 in Civil Appeal Diary
No. 24417 of 2019) and Indian Oil Corporation Ltd. (Respondent No.
18 in Civil Appeal Diary No. 24417 of 2019) are concerned, the
B
resolution professional admitted the claim of the abovementioned
respondents notionally at INR 1 on the ground that there were disputes
pending before various authorities in respect of the said amounts.
However, the NCLT through its judgment dated 08.03.2019 directed
the resolution professional to register the entire claim of the said
respondents. The NCLAT in paragraphs 43 and 196 of the impugned C
judgment upheld the order passed by the NCLT as aforesaid and
admitted the claim of the abovementioned respondents. We therefore
hold that this part of the impugned judgment deserves to be set aside
on the ground that the resolution professional was correct in only
admitting the claim at a notional value of INR 1 due to the pendency
D
of disputes with regard to these claims.
103. The appeals filed by the Committee of Creditors of Essar
Steel Limited and other Civil Appeals are allowed. The impugned
NCLAT judgment is set aside, except insofar as Civil Appeal No. 6409
of 2019, Civil Appeal No. 7266 of 2019, Civil Appeal No. 7260 of 2019 E
are concerned, which are dismissed. Insofar as Civil Appeal No. 6266
of 2019 and Civil Appeal No. 6269 of 2019 is concerned, the Appeals
are partly allowed in terms of this judgment. The Writ Petitions are
disposed of in terms of the judgment. It is made clear that the CIRP of
the corporate debtor in this case will take place in accordance with
the resolution plan of ArcelorMittal dated 23.10.2018, as amended and F
accepted by the Committee of Creditors on 27.03.2019, as it has provided
for amounts to be paid to different classes of creditors by following
Section 30(2) and Regulation 38 of the Code.

Ankit Gyan Appeals and writ petitions disposed of. G

H