NOIDA SPECIAL ECONOMIC ZONE AUTHORITYversusMANISH AGARWAL & ORS.

                 [2024] 11 S.C.R. 489 : 2024 INSC 839

               Noida Special Economic Zone Authority
                                 v.
                       Manish Agarwal & Ors.
                  (Civil Appeal No(s). 5918-5919 of 2022)
                              05 November 2024
           [Abhay S. Oka and Augustine George Masih,* JJ.]

                            Issue for Consideration
       The appellant-NOIDA Special Economic Zone Authority filed a claim
       of INR 06.29 Crores which was admitted by the Respondent No.01-
       Resolution Professional. The NCLT vide order dated 05.10.2020,
       granted only INR 50 Lakhs to the appellant against its admitted claim
       of INR 06.29 Crores. In the instant appeals, the challenge is to the
       judgment dated 14.02.2022 passed by NCLAT which were preferred
       by the appellant being the operational creditor impugning the order
       dated 05.10.2020 passed by the NCLT approving the Resolution
       Plan as presented on the approval by the Committee of Creditors.

                                  Headnotes†
       Insolvency and Bankruptcy Code, 2016 – ss.31(1) and 60(5) –
       Special Economic Zone Act, 2005 – Respondent No.02-
       Corporate Debtor was sub-leased a Plot at NOIDA Special
       Economic Zone by the Appellant-NOIDA Special Economic
       Zone Authority – Appellant’s case that the Corporate Debtor
       had begun defaulting on lease payments and there was no
       performance or activity on the said land – In light of the
       defaults committed by corporate debtor, CIRP was initiated
       by the appellant before the NCLT – Appellant filed a claim of
       INR 6,29,18,121/- which was admitted by the Respondent
       No.01 – Resolution Professional (RP) – A Resolution plan
       prepared by the Respondent No. 03-Resolution applicant was
       put before the Committee of Creditors – An application was
       then filed u/ss.31(1) and 60(5) of the IBC before the NCLT by
       the RP, seeking an approval of the Resolution Plan on behalf of
       the Committee of Creditors – The same was allowed by NCLT
       vide order dated 05.10.2020, granting only INR 50 Lakhs to
       the appellant against its admitted claim of INR 06.29 Crores –
       Objections against the said order by appellant were dismissed
       by the NCLT by order dated 27.11.2020 – Appeals before
* Author
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       NCLAT were also dismissed vide the impugned Judgment
       dated 14.02.2022 – Correctness:
       Held: It is settled that the question of valuation is basically a question
       of facts, which does not call for any interference if it is based
       on relevant material on record – The average of the two closest
       estimates given by the valuers were taken into consideration as fair
       value and liquidation value respectively, which were found to be just
       and reasonable – This would be, keeping in view Section 35C of
       IBC 2016, where the powers and duties of the liquidator have been
       laid down – Since due process appears to have been followed
       no fault is found requiring interference – Sections 30 and 31 of
       IBC 2016, which deal with the submission of the Resolution Plan
       has rightly been evaluated and analysed NCLAT as per the ratio laid
       down by the Supreme Court in its various decisions – Conclusion
       as culled out and elucidated is correct that all the dues, including
       statutory dues owned by the Central Government, State Government
       and local authority, which is not the part of the Resolution Plan shall
       stand extinguished and no proceedings in respect of such dues
       for the period prior to the date on which the Adjudicating Authority
       had approved the Resolution Plan could be pressed into service or
       continues – These observations took care of the assertions of the
       appellant with regard to the statutory dues and the claims as have
       been made and put forth relatable to the areas of lease – Beside
       this, as regards the other claims pertaining to the transfer fees,
       etc. were not to be interfered with by courts or tribunals as the
       same stood related to the commercial wisdom of the Committee
       of Creditors for they being the best persons to determine their
       interests, and any such interference is non-justiciable except as
       provided by Section 30(2) of IBC 2016 – There is no such violation
       of the statute or the procedure – It has come on record and stands
       admitted that the Resolution Plan had already been implemented
       and the dues as found payable under the Resolution Plan have
       been disbursed to the concerned parties and also the appellant – In
       light of the records and various decisions of the Supreme Court,
       the claim of the appellant cannot be accepted – Thus, the orders
       dated 05.10.2020 and 27.11.2020, as passed by the NCLT and
       approved by the NCLAT vide its impugned Judgment dated
       14.02.2022, do not call for any interference. [Paras 14, 15, 16, 20]
       Insolvency and Bankruptcy Code, 2016 – s.238 – Special
       Economic Zone Act, 2005 – Overriding effect of IBC, 2016:
       Held: As far as the submission that exemptions from NOIDA
       Special Economic Zone (NSEZ) payments, including any type of
[2024] 11 S.C.R.                                                           491

               Noida Special Economic Zone Authority v.
                       Manish Agarwal & Ors.

     fees or penalty for renewal of sub-lease and/or for transfer charges
     due with regard to the change of directorship or shareholding in
     favour of the Resolution Applicant has to be dealt with as per
     Clause 10.9 of the Resolution Plan cannot be accepted in the light
     of Section 238 of IBC 2016, which provides for the provisions of
     IBC 2016 to have an overriding effect over the other laws – If that
     be so, the obvious effect is that the same would prevail, leading
     to the provisions as contained in the SEZ Act 2005 giving way to
     IBC 2016. [Para 17]

                              Case Law Cited
     Duncans Industries Ltd. v. State of U.P. and Others (2000) 1
     SCC 633; Maharashtra Seamless Limited v. Padmanabhan
     Venkatesh and Others [2020] 2 SCR 1157 : (2020) 11 SCC 467;
     Ghanashyam Mishra and Sons Private Limited v. Edelweiss Asset
     Reconstruction Company Limited and Others [2021] 13 SCR 737 :
     (2021) 9 SCC 657; K. Sashidhar v. Indian Overseas Bank and
     Others [2019] 3 SCR 845 : (2019) 12 SCC 150; Committee of
     Creditors of Essar Steel India Limited v. Satish Kumar Gupta and
     Others [2019] 16 SCR 275 : (2020) 8 SCC 531; Ebix Singapore
     Private Limited v. Committee of Creditors of Educomp Solutions
     Limited and Another [2021] 14 SCR 321 : (2022) 2 SCC 401;
     DBS Bank Limited Singapore v. Ruchi Soya Industries Limited
     and Another [2024] 1 SCR 114 : (2024) 3 SCC 752 – referred to.

                                List of Acts
     Insolvency and Bankruptcy Code, 2016; Special Economic Zone
     Act, 2005.

                             List of Keywords
     Section 31(1) of Insolvency and Bankruptcy Code, 2016;
     Section 60(5) of Insolvency and Bankruptcy Code, 2016; NOIDA
     Special Economic Zone Authority; Operational creditor; Resolution
     Plan.

                            Case Arising From
     CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5918-5919
     of 2022
     From the Judgment and Order dated 14.02.2022 of the National
     Company Law Appellate Tribunal, Delhi in CAAT (I) Nos. 90
     and 91 of 2021
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                          Appearances for Parties
       Manish Singhvi, Sr. Adv., Anshul Rawat, Saurabh George, Ms. Manju
       Jetley, Advs. for the Appellant.
       Gopal Jain, Sr. Adv., Abhishek Anand, Ms. Mithu Jain, Karan Kohli,
       Krishna Sharma, Kunal Godhwani, Karan Batura, Ms. Kinjal Chadha,
       Advs. for the Respondents.
                  Judgment / Order of the Supreme Court
                                  Judgment
       Augustine George Masih, J.
1.     In the present Appeals challenge is to the Judgment dated 14.02.2022
       passed by the National Company Law Appellate Tribunal, Principal
       Bench, New Delhi (hereinafter referred to as “NCLAT”) which were
       preferred by the Appellant, i.e., NOIDA Special Economic Zone
       Authority, being the Operational Creditor (hereinafter referred to as
       “Appellant”) impugning the Order dated 05.10.2020 passed by the
       Adjudicating Authority of National Company Law Tribunal, New Delhi
       Bench (hereinafter referred to as “NCLT”) approving the Resolution
       Plan as presented on the approval by the Committee of Creditors,
       and also the Order dated 27.11.2020 vide which an application
       preferred by the Appellant, challenging the approval of the Resolution
       Plan, stood rejected.
2.     Briefly, the facts are that the Respondent No.02, i.e., Shree Bhoomika
       International Limited, being the Corporate Debtor (hereinafter referred
       to as “Corporate Debtor”) was sub-leased the Plot bearing No. 59-I
       admeasuring 16,100 square meters at NOIDA Special Economic Zone
       (hereinafter referred to as “NSEZ”) by the Appellant, in capacity of
       lessee of the said land from the NOIDA Authority, vide Lease Deed
       dated 26.10.1995, and it was valid for a period of 15 years, i.e.,
       up to 31.05.2010. It is the case of the Appellant that the Corporate
       Debtor had begun defaulting on lease payments in 1999, and
       moreover, there was no performance or activity on the said land since
       the year 2003-2004 leading to financial losses to the Government
       Exchequer, and same also being violative of the Special Economic
       Zone Rules and guidelines framed therein. Appellant has also made
       a reference to a Public Notice dated 06.02.2018 by the Stressed
       Assets Stabilization Fund for sale of immovable and movable assets
[2024] 11 S.C.R.                                                       493

               Noida Special Economic Zone Authority v.
                       Manish Agarwal & Ors.

     of the Corporate Debtor through an e-auction, fixing the total reserved
     price at INR 09.18 Crores.
3.   In the light of the defaults committed by the Corporate Debtor,
     Corporate Insolvency Resolution Process (hereinafter referred to
     as “CIRP”) was initiated by the Appellant before the NCLT. While
     admitting the said application on 11.07.2019, an Interim Resolution
     Professional (hereinafter referred to as “IRP”) was appointed. The
     Committee of Creditors, which comprised of the Sole Financial
     Creditor, being the Stressed Assets Stabilization Fund – IDBI Bank
     Limited (hereinafter referred to as “sole Financial Creditor”) was
     constituted by the IRP after making a public announcement on
     17.07.2019 as per the prescribed procedure.
4.   In pursuance thereto, the Appellant filed a claim of INR 6,29,18,121/-
     (Rupees Six Crores Twenty Nine Lakhs Eighteen Thousand and One
     Hundred Twenty One only) which was admitted by the Respondent
     No.01 – Resolution Professional (hereinafter referred to as “RP”) in
     entirety. Valuation of the Corporate Debtor was thereby conducted
     by two different valuers, and an average thereof was carried out,
     leading to the fixing of the liquidation value of the Corporate Debtor
     at INR 04.25 Crores. The Appellant had put forth that the valuers
     had also observed that the valuations derived by them could be
     realised, subject to fulfilment of the rules of NSEZ and procedure
     of approval thereof.
5.   The Resolution Plan dated 24.11.2019 (hereinafter referred to as
     “Resolution Plan”), which was prepared by the Respondent No. 03 –
     M/s Commodities Trading, being the Resolution Applicant (hereinafter
     referred to as “Resolution Applicant”) was put before the Committee
     of Creditors, which approved it in its 4th Meeting dated 06.01.2020.
6.   An application was then filed under Sections 31(1) and 60(5) of
     the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to
     as “IBC 2016”) before the NCLT by the RP, seeking an approval of
     the Resolution Plan on behalf of the Committee of Creditors. The
     same was allowed by NCLT vide Order dated 05.10.2020, granting
     only INR 50 Lakhs to the Appellant against its admitted claim of
     INR 06.29 Crores. Aggrieved, the Appellant put forth its objections
     before the RP to the Resolution Plan and claimed payment of the
     entire amount of INR 06.29 Crores from the Corporate Debtor,
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       leaving open the legal remedy to recover the full dues, in case the
       same was not accepted.
7.     Being at loggerhead with the RP with respect to the payment of
       admitted claim, the Appellant moved an application before the
       NCLT challenging the Order dated 05.10.2020, which approved the
       Resolution Plan. This was dismissed vide Order dated 27.11.2020,
       observing that the said tribunal did not have the jurisdiction to accept
       the prayer made in the application, which would amount to setting
       aside of the Resolution Plan, and the Appellant had the remedy of
       filing an appeal before the NCLAT.
8.     Thereafter, the Appellant moved appeals under Section 61 of IBC
       2016 before the NCLAT, challenging both the orders, as referred
       to above. These appeals were also dismissed vide the impugned
       Judgment dated 14.02.2022.
9.     The grievance put forth by the Appellant is with regard to the Appellant
       not being informed about the auction proceedings which were initiated
       at behest of the RP, thus, depriving it of its participation in the said
       proceedings. Once the total claim had been admitted by the RP,
       which was clearly indicated in the Resolution Plan, the said amount
       should have been disbursed to the Appellant prior to the claim of the
       other claimants, including the sole Financial Creditor.
10. Another aspect which has been pressed into service is with regard to
    Clause 10.9 of the Resolution Plan, as regards the exemptions from
    the NSEZ, asserted to be in direct contravention and contradiction to
    their established rules and principles of the functioning of the NSEZ.
    The Appellant, which works under the guidance of the Ministry of
    Commerce and Industry, Government of India, could not have been
    commanded relating to its functions by the RP, especially with regard
    to the charges or penalties relatable to the change in any business
    model for transfer of units by the original allottee. The attempt to
    by-pass the payment of statutory fee would be an unjust enrichment
    to the Resolution Applicant, thus, contradicting Section 34(2)(d) of
    the Special Economic Zone Act, 2005 (hereinafter referred to as
    “SEZ Act, 2005”).
11. The Appellant even challenged the fair and liquidation valuation of
    the Corporate Debtor being conducted by the two valuers. It was so
    challenged on the ground that no physical inspection of the property
[2024] 11 S.C.R.                                                       495

                   Noida Special Economic Zone Authority v.
                           Manish Agarwal & Ors.

     in question was carried out by the said valuers. A reference in this
     regard was made to Regulation 35(1)(a) of Insolvency and Bankruptcy
     Board of India (Insolvency Resolution Process for Corporate Persons)
     Regulations 2016 (hereinafter referred to as “IBBI Regulations 2016”),
     which required physical verification of the Corporate Debtor.
12. At the cost of reiteration, the Appellant invariably pressed over and
    over again assignment of only INR 50 Lakhs as against the admitted
    claim of INR 6,29,18,121/- (Rupees Six Crores Twenty Nine Lakhs
    Eighteen Thousand and One Hundred Twenty One only).
13. The learned Senior Advocate appearing for the Appellant has
    vehemently put forth the submissions as recorded above and has also
    referred to the statutory provisions before this Court. On considering
    the same, going through the impugned judgment dated 14.02.2022
    passed by the NCLAT and the records, we are not persuaded to
    take a different view.
14. As regard the fair value and liquidation value of Corporate Debtor, as
    derived by the valuers is concerned, this Court in Duncans Industries
    Ltd. v. State of U.P. and Others1 held that the question of valuation is
    basically a question of facts, which does not call for any interference
    if it is based on relevant material on record. As stated above, the
    average of the two closest estimates given by the valuers were taken
    into consideration as fair value and liquidation value respectively,
    which were found to be just and reasonable. This would be, keeping
    in view Section 35C of IBC 2016, where the powers and duties of the
    liquidator have been laid down. Since due process appears to have
    been followed no fault is found requiring interference.
15. Sections 30 and 31 of IBC 2016, which deal with the submission
    of the Resolution Plan has rightly been evaluated and analysed
    NCLAT as per the ratio laid down by this Court in Maharashtra
    Seamless Limited v. Padmanabhan Venkatesh and Others, 2
    Ghanashyam Mishra and Sons Private Limited v. Edelweiss
    Asset Reconstruction Company Limited and Others,3 and
    K. Sashidhar v. Indian Overseas Bank and Others,4 reference


1   (2000) 1 SCC 633
2   [2020] 2 SCR 1157 : (2020) 11 SCC 467
3   [2021] 13 SCR 737 : (2021) 9 SCC 657
4   [2019] 3 SCR 845 : (2019) 12 SCC 150
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       thereof has been made by the NCLAT in extenso. Conclusion as
       culled out and elucidated is correct that all the dues, including
       statutory dues owned by the Central Government, State Government
       and local authority, which is not the part of the Resolution Plan shall
       stand extinguished and no proceedings in respect of such dues
       for the period prior to the date on which the Adjudicating Authority
       had approved the Resolution Plan could be pressed into service or
       continues. These observations took care of the assertions of the
       Appellant with regard to the statutory dues and the claims as have
       been made and put forth relatable to the areas of lease.
16. Beside this, as regards the other claims pertaining to the transfer
    fees, etc. were not to be interfered with by courts or tribunals as the
    same stood related to the commercial wisdom of the Committee of
    Creditors for they being the best persons to determine their interests,
    and any such interference is non-justiciable except as provided by
    Section 30(2) of IBC 2016. We do not find violation of the statute
    or the procedure as also the norms fixed as per the decisions
    referred to above of this Court, the Resolution Plan as approved by
    the Committee of Creditors, and the same having been accepted
    deserves and has rightly been left untouched.
       Fundamentally, the financial decisions as have been taken by
       Committee of Creditors, especially with regard to viability or otherwise,
       while evaluating the plan would thus prevail.
17. As far as the submission of the Learned Senior Counsel that
    exemptions from NSEZ payments, including any type of fees or
    penalty for renewal of sub-lease and/or for transfer charges due with
    regard to the change of directorship or shareholding in favour of the
    Resolution Applicant has to be dealt with as per Clause 10.9 of the
    Resolution Plan cannot be accepted in the light of Section 238 of
    IBC 2016, which provides for the provisions of IBC 2016 to have
    an overriding effect over the other laws. If that be so, the obvious
    effect is that the same would prevail, leading to the provisions as
    contained in the SEZ Act 2005 giving way to IBC 2016.
18. It has come on record and stands admitted that the Resolution Plan
    had already been implemented and the dues as found payable under
    the Resolution Plan have been disbursed to the concerned parties.
    As regards the Appellant is concerned, the amount was disbursed
    vide Demand Draft dated 22.10.2020 which has been received and
[2024] 11 S.C.R.                                                    497

                   Noida Special Economic Zone Authority v.
                           Manish Agarwal & Ors.

     accepted by the Appellant. Leading to the dismissal of the appeal
     vide impugned Judgment dated 14.02.2022.
19. In the light of above and having perused the record while bearing
    in mind the extensive observations made by 3-Judge Bench of this
    Court in Committee of Creditors of Essar Steel India Limited v.
    Satish Kumar Gupta and Others,5 and its reiteration by numerous
    subsequent decisions of this Court such as the Ebix Singapore
    Private Limited v. Committee of Creditors of Educomp Solutions
    Limited and Another6 and in the latest decision in DBS Bank Limited
    Singapore v. Ruchi Soya Industries Limited and Another,7 we
    find ourselves not in a position to accept the claim of the Appellant
    as sought to be made and put forth in these appeals.
20. The Orders dated 05.10.2020 and 27.11.2020, as have been passed
    by the NCLT and approved by the NCLAT vide its impugned Judgment
    dated 14.02.2022, do not call for any interference in the present
    Appeals. The appeals being devoid of merit, stand dismissed.
21. There shall be no order as to costs.
22. Pending application(s), if any, also stand disposed of.

     Result of the case: Appeals dismissed.



     †
         Headnotes prepared by: Ankit Gyan




5   [2019] 16 SCR 275 : (2020) 8 SCC 531
6   [2021] 14 SCR 321 : (2022) 2 SCC 401
7   [2024] 1 SCR 114 : (2024) 3 SCC 752