GHANASHYAM MISHRA AND SONS PRIVATE LIMITED THROUGH THE AUTHORIZED SIGNATORY v. EDELWEISS ASSET RECONSTRUCTION COMPANY LIMITED THROUGH THE DIRECTOR & ORS.

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139Copy pinpoint139. In ordinary course, we would not have entertained such a petition directly under Article 32 of the Constitution. However, a question of law, which arises for consideration in the present petition has been considered by us in this batch of matters. In that view of the matter, we find, that it would not be in the interest of justice to non-suit the present petitioner, when we have specifically decided question of law, which would govern the present case also. As such, the present petition is allowed.

140Copy pinpoint140. We hold and declare, that the respondents are not entitled to recover any claims or claim any debts owed to them from the Corporate Debtor accruing prior to the transfer date. Needless to state, that the consequences thereof shall follow. CIVIL APPEALS ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NOS.7147-7150 OF 2020

141Copy pinpoint141. For the reasons stated, I.A. for intervention on behalf of the applicant – TATA Steel BSL Limited is allowed.

142Copy pinpoint142. In the present case, the appellant challenges the judgment and order passed by the Division Bench of the Jharkhand High Court dated 1.5.2020 vide which the petitions filed by the appellant, challenging the action of the respondent – authorities thereby, seeking to recover the E Jharkhand Value Added Tax (JVAT) for the period between 2011-2012 and 2012-2013, have been rejected. Both the learned Judges have written separate judgments.

143Copy pinpoint143. In the judgment authored by H.C. Mishra, J, the petitions filed by the appellant were rejected on two grounds, viz., one, that since F the management of the appellant was taken over by M/s Vedanta Limited on 4.6.2018, it was only M/s Vedanta Limited, which had locus to file writ petitions. Secondly, it was debatable whether the amount of JVAT shall be covered by the expressions “debt in respect of the payment of dues arising under any law for the time being in force and payable to the G Central Government, any State Government” so as to bring it within the definition of “operational debt”.

144Copy pinpoint144. Insofar as, the judgment authored by Deepak Roshan, J. is concerned, the learned Judge has observed, that since the resolution plan was approved by NCLT on 17.4.2018, 2019 amendment to Section H 31(1) of I&B Code would not apply to the said plan. We find, that the

GHANASHYAM MISHRAAND SONS (P) LTD. THROUGH THE AUTH. 821 SIGNATORY v. EDELWEISS ASSET RECONSTRUCTION CO. LTD. THROUGH THE DIRECTOR [B. R. GAVAI, J.] finding of the High Court, that the dues owed to the State Government A and Central Government would not come within the definition of ‘operational debt’, is incorrect in law in the light of the view that is taken by us. So also the finding, that since the order of NCLT is prior to the date on which Section 31(1) of I&B Code was amended, the provisions of Section 31 would not be applicable, also cannot stand in view of the foregoing observations made by us hereinabove.

145Copy pinpoint145. We also find, that the High Court has erred in holding, that the Appellant – Company does not have locus to file the writ petitions inasmuch as, the management has been taken over by M/s Vedanta Limited. The resolution plan is in respect of the Corporate Debtor and the successful resolution applicant only takes over the management of the Corporate Debtor in accordance with the resolution plan. The resolution applicant steps into the shoes of the Corporate Debtor. As such, the finding in this respect would also not be sustainable in law.

146Copy pinpoint146. Shri Gurukrishna Kumar, learned Senior Counsel, strenuously argued, that RP/CoC had acted in a fraudulent manner. It is submitted, that though a notice inviting claim was required to be published in local newspapers where the registered office of the Corporate Debtor was situated, the notice was published in the newspaper of Kolkata edition. As per Regulation 6(2)(b) of the 2016 Regulations, the said notice is required to be published in one English and one regional language newspaper with wide circulation at the location of the registered office and corporate office of the Corporate Debtor. Perusal of the record would reveal, that the notice was published in Business Standard and Ananda Bazar Patrika newspapers of the Kolkata edition, which have wide circulation in Ranchi. The corporate office of the Corporate Debtor is at Kolkata whereas its registered office is at Ranchi. In any case, it is to be noticed, that the Forest Department of the State Government had filed intervention application before NCLT as well as NCLAT. When one of the wings of the State Government has approached NCLT and NCLAT, it is difficult to believe, that other organ of the State was not aware about the said proceedings. G

147Copy pinpoint147. The contention of Shri Gurukrishna Kumar, learned Senior Counsel, that finding with regard to non-compliance of Section 13 is not challenged by the Electrosteel Steels Limited, is also incorrect, inasmuch as, Electrosteel Steels Limited has raised the specific ground in Grounds ‘U’ to ‘ AA’ to that effect in the appeal memo. H

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148Copy pinpoint148. In the result, the appeals deserve to be allowed. It is ordered accordingly. The impugned judgment and order of the Jharkhand High Court dated 1.5.2020 is quashed and set aside.

149Copy pinpoint149. We hold and declare, that the respondents are not entitled to recover any claims or claim any debts owed to them from the Corporate B Debtor accruing prior to the transfer date. Needless to state, that the consequences thereof shall follow.

Nidhi Jain Appeals and Writ Petition allowed.