J.C. Flowers Asset Reconstruction Pvt. Ltd. Vs Harish Kant Kaushik (RP) and Anr. - The Adjudicating Authority does have jurisdiction to interfere with the decision of the Committee of Creditors taken in commercial wisdom, in event the plan violates any of the statutory provisions and is not in compliance with Section 30(2) the Adjudicating Authority can interfere.

NCLAT (2025.07.29) in J.C. Flowers Asset Reconstruction Pvt. Ltd. Vs Harish Kant Kaushik (RP) and Anr. [(2025) ibclaw.in 565 NCLAT, Company Appeal (AT) (Ins) No. 966 of 2025] held that;

• The Adjudicating Authority does have jurisdiction to interfere with the decision of the Committee of Creditors taken in commercial wisdom, in event the plan violates any of the statutory provisions and is not in compliance with Section 30(2) the Adjudicating Authority can interfere.

• There being very limited scope of interference by the Adjudicating Authority in the commercial wisdom of the CoC in approving the plan, we are of the view that order passed by Adjudicating Authority is unsustainable. In result, the order passed by the Adjudicating Authority is set aside. The plan approval application is revived before the Adjudicating Authority for passing a fresh order in accordance with law at an early date.

Excerpts of the Order;

29.07.2025: Heard counsel for the appellant as well as Ld. Counsel for the Resolution Professional.

# 2. This appeal has been filed against the order passed by the Adjudicating Authority dated 03.06.2025 in IA No. 62 of 2024 by the impugned order Adjudicating Authority has disposed of I.A. 62/2024 and sent the plan back to the Committee of Creditors (“CoC”) on the ground that the plan does not comply the statutory provisions that is Section 30(2) of the IBC. The CoC aggrieved by the order has come up in this appeal.

# 3. Ld. Counsel for the appellant challenging the order impugned submits that there was no non-compliance of Section 30(2). The Adjudicating Authority has observed that non-compliance of Section 30(2)(a) on the grounds that plan provides for payments of CIRP cost out of internal accruals of the Corporate Debtor and no separate amount for the same has been provided in the plan. It is submitted that the Adjudicating Authority has not adverted to the clause both in the original Resolution Plan and in the addendum that if internal accruals are not sufficient SRA shall make the payment towards CIRP Cost without effecting the payouts of the Financial Creditors. It is further submitted that finding that there is a non-compliance of Section 30(2)(a) is not correct. Committee of Creditors after considering all aspects of the matter has approved the plan. It is further submitted by the counsel for the appellant that although in the addendum the plan value was increased from Rs.92.15 Crores to Rs.110.10 Crores but equivalent changes have not been carried out in the fund infusion clause. It is submitted that when the addendum clearly has increased the amount to Rs.110.10 Crores that was commitment of the SRA on the basis of negotiation by the CoC and in the clause of fund infusion mention of figure Rs.92.15 is inconsequent and in any case its plan value has to be treated as Rs.110.10 Crores.

# 4. It is further submitted that another discrepancy pointed out by the Adjudicating Authority is that in Form-H for Operational Creditor amount mention was Rs.12.63 Crores whereas in addendum the amount admitted towards same category is Rs.12.05 Crores. It is submitted that above is only typographical mistake, the SRA accepts the figure of Rs.12.63 Crores and in the admission as well as the payment there is no change.

# 5. Ld. Counsel for the Resolution Professional (“RP”) supported the submissions of the CoC and submits that plan fully complied with Section 30(2) and Adjudicating Authority ought not to have interfered with the plan.

# 6. We have considered the submission of counsel for the parties and perused the records.

# 7. The Resolution Plan has been approved by the CoC who is appellant before us questioning the order impugned. The Adjudicating Authority has proceeded to hold the plan non-compliance of Section 30(2)(a) for the reasons as noticed in the paragraphs- 36 to 41.

• “36. At this juncture, it is pertinent to refer the relevant clauses of Resolution Plan submitted by the Successful Resolution Applicant. In the Resolution Plan the treatment for the CIRP Cost is mentioned as follow:

• “Treatment of CIRP Costs.-

• As per the Code, the CIRP Costs are accorded highest priority amongst the creditors of a Company and the CIRP Costs shall, amongst other things, include the costs, fees and charges incurred by the Resolution Professional, in running the operations of the Company as a going concern. It is evident from the records that during the CIRP period internal accruals and/or other cash flows of the Company will be sufficient to pay the CIRP Costs as approved by the CoC. The CIRP Costs will be paid in full and in priority to and other creditor of the Company upon the Resolution Plan becoming effective, out of the internal accruals of the Company. If the internal accruals of the Company are not sufficient to meet the CIRP Costs, the Resolution Applicant will make the payment towards the balance unpaid portion of the CIRP Costs (“Unpaid CIRP Costs”} out of the Total Resolution Amount on the Closing Date. It is clarified that any interim finance raised by the Resolution Professional from the Financial Creditors which has been utilized towards the payment of CIRP Costs shall be treated as part of the Unpaid CIRP Costs.”

• further as per Form -H and the Resolution Plan, the plan value is INR 110. 10 Crores, for clarity bifurcation is provided hereunder:

Particulars	Amount in Crore
Cash Component
(a) CIRP Cost	–
(b) Secured Financial Creditors	101.58
(c) Unsecured Financial Creditors	8.37
(d) Operational Creditors (Statutory Authorities)	0.02
(e) Other Operational Creditors	0. 13
Total Resolution Plan Value	110.10

• 37. On bare perusal of the aforementioned clauses under the Resolution Plan it transpires that the CIRP Cost will be paid out of the internal accruals of the Corporate Debtor and no separate amount for the same has been provided in the plan value. Further, the instant Resolution Plan does not give any specifics about the internal accruals of the Corporate Debtor from which the payment will be made and whether the same will be sufficient to provide complete payment towards the CIRP Cost.

• 38. Further, the clause under the Resolution Plan qua CIRP Cost mentions that if the internal accruals of the Corporate Debtor are not sufficient to meet the CIRP Cost, the SRA will make the payments towards the balance unpaid portion out of the total Resolution Plan value. Thus, the SRA will not introduce any additional funds in case the internal accruals are insufficient for meeting out the CIRP Cost. Further, the scheme proposed by the SRA for the payment of the CIRP Cost in case of insufficiency of the internal accruals will affect the whole disbursement as proposed in the plan towards other creditors of the Corporate Debtor. Hence, changing the very fundamentals of the Resolution Plan on the basis of which the plan was approved by the COC.

• 39. Henceforth, we are of the opinion that the Resolution Plan submitted by the SRA is in non-compliance of Section 30(2)(a) of the Code, 2016.

• 40. Besides the aforementioned non-compliance of the mandatory provisions of the Code, there are other discrepancies in the Resolution Plan and the addendum to the Resolution Plan. We have noticed that, the Resolution Plan value as provided under the Resolution Plan initially was Rs. 92.15 Cr. and the same was to be introduced through fund infusion. Further, the definition of the fund infusion as provided in the Resolution Plan stated that “INR 92.15 Cr [Indian Rupees Ninety Two Crores Fifteen Lakhs Only] to be infused in the CD through SPV(s) to make specified payments as per the Resolution Plan in the form of equity, debt or any other instrument as decided by the RA in its sole discretion.” There is no other mechanism provided in plan for making the payment to the creditors. Subsequently, the plan value was enhanced from Rs. 92.15 Crores to Rs. 110.10 Crores via the addendum to the Resolution Plan. However, requisite equivalent changes have not been carried out in the “Fund Infusion” clause of the Resolution Plan which still reflects the fund infusion to the extent of Rs. 92.15 Cr. Thus, there remains an ambiguity towards the introduction of the enhanced amount in the Resolution Plan i.e., Rs. 17.95 Cr.”

The ambit and jurisdiction of the Adjudicating Authority while considering the plan approved by Committee of Creditors is too limited. The Adjudicating Authority does have jurisdiction to interfere with the decision of the Committee of Creditors taken in commercial wisdom, in event the plan violates any of the statutory provisions and is not in compliance with Section 30(2) the Adjudicating Authority can interfere. It is submitted by the appellant and Ld. Counsel for the RP that there was no non-compliance of the Section 30(2). We thus need to examine the plan in above reference as to whether there is non-compliance of Section 30(2) or not?

# 8. The first main ground which has been given by the Adjudicating Authority is with regard to non-providing for payment of CIRP cost in priority. The Adjudicating Authority in paragraph-36 has noted the clause in the Resolution Plan with regard to CIRP cost paragraph-36 is as follows:-

• “36. At this juncture, it is pertinent to refer the relevant clauses of Resolution Plan submitted by the Successful Resolution Applicant. In the Resolution Plan the treatment for the CIRP Cost is mentioned as follow:

• “Treatment of CIRP Costs.-

• As per the Code, the CIRP Costs are accorded highest priority amongst the creditors of a Company and the CIRP Costs shall, amongst other things, include the costs, fees and charges incurred by the Resolution Professional, in running the operations of the Company as a going concern. It is evident from the records that during the CIRP period internal accruals and/or other cash flows of the Company will be sufficient to pay the CIRP Costs as approved by the CoC. The CIRP Costs will be paid in full and in priority to and other creditor of the Company upon the Resolution Plan becoming effective, out of the internal accruals of the Company. If the internal accruals of the Company are not sufficient to meet the CIRP Costs, the Resolution Applicant will make the payment towards the balance unpaid portion of the CIRP Costs (“Unpaid CIRP Costs”} out of the Total Resolution Amount on the Closing Date. It is clarified that any interim finance raised by the Resolution Professional from the Financial Creditors which has been utilized towards the payment of CIRP Costs shall be treated as part of the Unpaid CIRP Costs.”

• further as per Form -H and the Resolution Plan, the plan value is INR 110. 10 Crores, for clarity bifurcation is provided hereunder:

• 
  

Particulars	Amount in Crore
Cash Component
(a) CIRP Cost	–
(b) Secured Financial Creditors	101.58
(c) Unsecured Financial Creditors	8.37
(d) Operational Creditors (Statutory Authorities)	0.02
(e) Other Operational Creditors	0. 13
Total Resolution Plan Value	110.10

9. The Ld. Counsel for the appellant has referred to the addendum of the Resolution Plan as well as similar clause in the original plan. It is useful to notice the clause-4 of the addendum which is brought on record as Annexure A-15. Clause-4 of the addendum provides as follows:-

• “4. It is evident from the records that during the CIRP period internal accruals and/ or other cash flows of the Company will be sufficient to pay the CIRP Costs as approved by the CoC. The CIRP Costs will be paid in full and in priority to any other creditor of the Company upon the Resolution Plan becoming effective out of the internal accruals of the Company. If the internal accruals of the Company are not sufficient to meet the CIRP Costs, the Resolution Applicant will make the payment towards the balance unpaid portion of the CIRP Costs (“Unpaid CIRP Costs”) at actuals without any deduction from the Upfront FC Debt Payment amount in terms of this Resolution Plan.”

The above clause clearly provides that in event internal accruals of the Company are not sufficient to meet the CIRP cost resolution applicant will make the payment towards the balance unpaid portion of CIRP Cost at actual without any deduction from the amount payable to Financial Creditor in terms of Resolution Plan. The above clause is clear and categorically makes provision for payment of CIRP Costs. It cannot be held that the above clause in any manner violates Section 30(2) or provisions of Regulation, 2016 which provides requirement of provisions for CIRP cost. We thus are of the view that Adjudicating Authority committed error in holding the plan non-compliance on the above ground.

# 10. Now we come to the next ground given by the Adjudicating Authority is that initially the plan value was Rs. 92.15 Crores which was increased to Rs.110.10 Crores vide addendum but the requisite equivalent changes have not been carried out in the fund infusion clause of the Resolution Plan which still reflects fund infusion to the extent of Rs.92.15 Crores. Paragraph-40 of the judgment is as follows:-

• “40. Besides the aforementioned non-compliance of the mandatory provisions of the Code, there are other discrepancies in the Resolution Plan and the addendum to the Resolution Plan. We have noticed that, the Resolution Plan value as provided under the Resolution Plan initially was Rs. 92.15 Cr. and the same was to be introduced through fund infusion. Further, the definition of the fund infusion as provided in the Resolution Plan stated that “INR 92.15 Cr [Indian Rupees Ninety Two Crores Fifteen Lakhs Only] to be infused in the CD through SPV(s) to make specified payments as per the Resolution Plan in the form of equity, debt or any other instrument as decided by the RA in its sole discretion.” There is no other mechanism provided in plan for making the payment to the creditors. Subsequently, the plan value was enhanced from Rs. 92.15 Crores to Rs. 110.10 Crores via the addendum to the Resolution Plan. However, requisite equivalent changes have not been carried out in the “Fund Infusion” clause of the Resolution Plan which still reflects the fund infusion to the extent of Rs. 92.15 Cr. Thus, there remains an ambiguity towards the introduction of the enhanced amount in the Resolution Plan i.e., Rs. 17.95 Cr.”

There is no dispute from the addendum which have been brought on the record the plan value has been increased to Rs.110.10 Crores after negotiation between CoC and the SRA. There is no dispute that increased plan value is Rs.110.10 Crores. The mere fact that in the Clause of fund infusion by mistake the mention Rs.92.15 Crores is there the said mention is in consequential since it is not the case of anyone that enhanced plan value is not Rs.110.10 Crores. Further, present is a case where no objection have been raised by any stakeholder before the Adjudicating Authority pointing out any non-compliance of provisions on any other reason. We thus, are of the view that said cannot be any ground for not approving the plan.

# 11. The third ground taken by the Adjudicating Authority is that in Form-H amount admitted towards the operational creditor is Rs.12.63 Crores and in the addendum the amount admitted is the shown as Rs.12.05 Crore. Ld. Counsel pointed out that the mention of admitted claim of Rs.12.05 Crore was only a typographical mistake since the payout in the plan is the same i.e; Rs.0.13 Crores which is not changed. Hence, the said in no manner effect the validity of the plan. Ld. Counsel for the appellant has submitted that in the addendum payment as part of the Resolution Plan is clearly mentioned which is as page-507 of the paper book where the payout to the Operational Creditor other than workman employee is same i.e. Rs.0.13 Crores. It is submitted that mention by typographical error with regard to admitted claim as Rs.12.05 Crores instead of Rs.12.63 Crores was also in consequential. No Operational Creditor has also raised any objection before the Adjudicating Authority with regard to any discrepancy in the Resolution Plan, the said mistake was only clerical error not effecting the validity of the plan and nor the above in any manner violates the provisions of Section 30(2) or payout being not in accordance with the requirement of Section 30(2).

# 12. In view of the above, we are of the view that none of the grounds given by the Adjudicating Authority for not approving the plan can be sustained. We found that the Resolution Plan is not in violation of Section 30(2). There being very limited scope of interference by the Adjudicating Authority in the commercial wisdom of the CoC in approving the plan, we are of the view that order passed by Adjudicating Authority is unsustainable. In result, the order passed by the Adjudicating Authority is set aside. The plan approval application is revived before the Adjudicating Authority for passing a fresh order in accordance with law at an early date.

With the above, Appeal is disposed of.

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Shyam Sunder Agaewal (SRA) Vs. Rishabh Chand Lodha & Ors. - IBBI in its Circular No. IBBI/IP/013/2018 dated 12.06.2018, at Para / Point No. 7, has clearly stipulated that RP firstly shall ensure to make payment of CIRP cost from the internal source of the Corporate Debtor and if the same is not sufficient, then the same shall be met as per provisions of Section 30 or Section 53 of IBC.

 NCLT ND-IV (2025.05.30) in Shyam Sunder Agaewal (SRA) Vs. Rishabh Chand Lodha & Ors. [I.A. NO. 527 OF 2022 in CP (IB) NO. 651(ND) OF 2020 ] held that;

• IBBI in its Circular No. IBBI/IP/013/2018 dated 12.06.2018, at Para / Point No. 7, has clearly stipulated that RP firstly shall ensure to make payment of CIRP cost from the internal source of the Corporate Debtor and if the same is not sufficient, then the same shall be met as per provisions of Section 30 or Section 53 of IBC.

• The phrase “all the assets” — as opposed to “net assets” — unequivocally supports this position. Further, the relevant date for ascertaining the assets to be transferred is the date of approval of the Resolution Plan, i.e., 26.11.2021, and thus, all assets existing as on that date are to be handed over in terms of the approved plan.

• The deduction of the CIRP costs by the RP from the available funds of the Corporate Debtor, prior to handover to the SRA, is thus in strict conformity with the Resolution Plan, the CoC’s recorded decision, and the undertaking given by the SRA. 

Excerpts of the order;

# 1. This application has been preferred by Mr. Sanket Kumar Agarwal, Authorized Signatory of the Successful Resolution Applicant, Mr. Shyam Sundar Agarwal of Flywheel Logistics Solutions Pvt. Ltd. (“Corporate Debtor”) under section 60(5) of the insolvency and bankruptcy code, 2016 with the following prayers:

• “(a) Allow the present application and direct the Resolution Professional to appropriate unpaid CIRP Cost strictly as per provisions of the approved Resolution Plan i.e. out of the amount of INR 150 lakhs earmarked collectively for Secured Financial Creditors and inclusive of payment of any unpaid CIRP costs;

• (b) Direct the Respondent No. 1 to remit the total of Cash & Cash Equivalents as on date of approval of Plan and the Income Tax Refund received on 21.12.2021 back to the account of the Corporate Debtor to the extent misappropriated;

• (c) Direct the Resolution Professional to handover immediate possession and complete control of the Corporate Debtor to the successful Resolution Applicant;

• (d) Restrain the Resolution Professional from operating accounts of the Corporate Debtor post the approval of the Resolution Plan;

• (e) Direct the Resolution Professional to hand over copies of all documents/claim forms related to CIRP of the Corporate Debtor as required by the Applicant for their records and information;

• (f) Pass such other or further order(s) as may be deemed fit and proper in the facts and circumstances of the instant case.”

# 2. Submission on behalf of Applicant

a. The Applicant has submitted by order dated 06.10.2020, this  Adjudicating Authority had admitted Section 7 application under the Insolvency and Bankruptcy Code, 2016, for initiating CIRP against the Corporate Debtor i.e. M/s. Flywheel Logistics Solutions

Pvt. Ltd..

b. That pursuant to publishing of Form-G dated 12.05.2021 by the RP (Respondent No. 1), the Applicant herein addressed a letter dated 14.06.2021 to the RP expressing interest to submit a Resolution Plan in the CIRP of the Corporate Debtor and accordingly, submitted a Resolution Plan for consideration by the Committee of Creditors ('CoC').

c. The Applicant submitted that the CoC, exercising its commercial wisdom, approved the Resolution Plan for ₹160 lakhs through evoting held from 26.08.2021 to 01.09.2021, with 93.40% votes in favour. Following this approval, the Applicant deposited Rs. 50 lakhs as performance security via RTGS into the Corporate Debtor's CIRP account.

d. That the Applicant submitted that the approved Resolution Plan clearly states that its total liability shall not exceed ₹160 lakhs under any circumstances. As per Clause 10 of Schedule 3, any payment towards unpaid CIRP costs shall be proportionately adjusted from the amount allocated to Secured Financial Creditors, without dilution or appropriation of assets acquired upon plan approval. Clause 10 of Schedule 3 of the approved Resolution Plan is reiterated herein-below:

e. The Applicant has submitted that Clause 1 of Schedule 4 of the approved Resolution Plan deals with mandatory contents of the Resolution Plan wherein too, it has been clearly stated by the Applicant that any amount paid towards unpaid CIRP cost shall be adjusted in payment proposed for Secured Financial Creditor.

f. Furthermore, Clause 1.2 of Schedule 4 once again stipulates that any amount to be paid by the Resolution Applicant towards unpaid CIRP costs, shall be adjusted from the payments proposed for Secured Financial Creditors. Clause 1.2 of Schedule 4 of the approved Resolution Plan is Reproduced herebelow:  . . . .  

g. It is respectfully submitted that following the approval of the Resolution Plan by this Hon’ble Adjudicating Authority on 26.11.2021, the Resolution Professional disregarded the terms of the approved Plan and reversed his position on unpaid CIRP costs. As per the Plan and settled law, all assets, including cash and equivalents of the Corporate Debtor as of the approval date, are to be handed over to the Resolution Applicant on an “AS IS WHERE IS” basis, without recourse. The Resolution Applicant is obligated to fulfil its financial commitments strictly as per the approved Plan. Notably, Clause 11, Schedule 3, Para 10(4) clearly affirms this treatment of assets.

h. The Applicant has submitted that Respondent No. 1 has disregarded the Resolution Plan’s provisions regarding unpaid CIRP costs and instead insisted on deducting the entire unpaid CIRP cost as of 26.11.2021 not only from the Corporate Debtor’s cash and equivalents available on the approval date (₹37,31,514/-) but also from post-approval receipts, including an Income Tax refund of ₹40,04,798/- received on 21.12.2021. This approach undermines the definition of “unpaid CIRP costs” and contradicts the approved Resolution Plan.

i. That applicant has submitted that the actions of Respondent No. 1 are contrary to Section 30(2)(a) of the Insolvency and Bankruptcy Code, 2016, which mandates that the Resolution Professional must ensure the Resolution Plan provides for payment of CIRP costs in priority over other debts. The Respondent’s approach violates this statutory requirement and the framework of the approved Plan.

j. It is respectfully submitted that upon receipt of the certified copy of the order dated 26.11.2021 approving the Resolution Plan, the Applicant promptly sought from the Respondent a list of unpaid CIRP costs as of the approval date. The Respondent initially provided a tentative list on 09.12.2021 showing unpaid costs of ₹97,36,274, which it termed “unpaid business operation payments.” The Applicant clarified that these fall within the legal definition of CIRP costs, which was conceded by the Resolution Professional.

k. Subsequently, on 13.12.2021, a revised and significantly reduced final list amounting to ₹27,06,800 was shared, curiously approved by one Mr. Anil Kumar Mittal in the capacity of “Monitoring Professional,” even though his role had ceased post-approval of the Resolution Plan. Notably, during this period, GSTR-1 for November 2021 was not filed by the RP, and a NIL GSTR-3B return was filed on 20.12.2021, allegedly to evade statutory dues, potentially exposing the Applicant to future liabilities.

l. It is submitted by the Applicant that It is submitted that vide letter dated 11.12.2021, the Ex-Resolution Professional constituted the Monitoring Committee effective from 26.11.2021 and acknowledged that post-approval of the Resolution Plan, he would act in a fiduciary capacity on behalf of the Resolution Applicant. However, upon receiving the final list of unpaid CIRP costs, the Applicant raised serious concerns through letter dated 13.12.2021 regarding non-inclusion of statutory dues (such as GST, TDS, salaries, and dues of operational creditors), to which the RP failed to respond satisfactorily and even directed company employees to withhold information from the Applicant’s representative in the Monitoring Committee.

m. Further, though a meeting of the Monitoring Committee was scheduled for 14.12.2021, it was adjourned indefinitely within hours, and repeated requests to reconvene the meeting went unanswered. Meanwhile, essential payments were stalled, leading to business disruption and stakeholder unrest. Despite this, the Applicant continued to fulfill its obligations under the approved Resolution Plan, making the first tranche payment on 23.12.2021, followed by full balance remittance by 05.01.2022, due to the approaching deadline of 07.01.2022. The Applicant kept the RP informed of all actions while urging proper convening of the Monitoring Committee, which was not complied with.

n. The Applicant has further submitted that the Resolution Professional (RP) has acted in violation of the approved Resolution Plan and the provisions of the IBC by adjusting post-approval tax refund receipts (INR 40,04,798 received on 21.12.2021) against unpaid CIRP costs. The approved plan explicitly prohibits such setoffs under Clause 11.1 of Schedule 3. Despite being functus officio post-approval, the RP continued to exercise unauthorized control over the Corporate Debtor's accounts, withheld key information, and failed to convene the Monitoring Committee meetings in a timely manner.

o. Further, the RP initially underreported the unpaid CIRP costs (from Rs. 97.36 lakhs to Rs. 27.06 lakhs), only revising the figure to approx. Rs. 65 lakhs after the tax refund was discovered. These actions indicate a deliberate attempt to avoid adjusting the unpaid CIRP cost from the amount earmarked for Secured Financial Creditors, thereby defeating the plan’s approved structure. Additionally, disbursements to operational and unsecured creditors were made prior to settling CIRP dues, which is contrary to the waterfall mechanism mandated under the Code. These actions have caused undue hardship and financial loss to the Resolution Applicant and require appropriate directions and regulatory scrutiny.

# 3. Submission on behalf of Respondent (Resolution Professional) 

a. At the outset, the Answering Respondent submits that the Applicant's allegations are bald, unsubstantiated, and unsupported by any relevant documents. All such averments are emphatically denied as false and misconceived. Nothing stated shall be deemed admitted unless specifically and expressly accepted. The present Application is an abuse of process, not maintainable, and liable to be dismissed in limine. It is a baseless attempt by the Applicant to claim the income tax refund received in the CIRP account, which was rightfully utilized by the Respondent towards CIRP operating expenses necessary to maintain the Corporate Debtor as a going concern.

b. The Respondent stated that the Committee of Creditors (CoC), in exercise of its commercial wisdom, approved the revised Resolution Plan submitted by the Applicant on 24.08.2021. Pursuant thereto, the Applicant deposited a Performance Security of ₹50.00 lakhs via RTGS into the CIRP account of the Corporate Debtor. Thereafter, upon the Application filed by the Respondent, this Adjudicating Authority approved the Resolution Plan vide its Order dated 26.11.2021.

c. That pursuant to the terms of the Resolution Plan, Respondent No. 1 was appointed as the Head of the Monitoring Committee to oversee its implementation. Accordingly, the Applicant, vide letter dated 10.12.2021, agreed to pay a fee of ₹50,000/- along with ₹10,000/- towards reimbursement of miscellaneous expenses to Respondent No. 1 for discharging said responsibilities.

d. The respondent RP submitted that the Applicant remitted the balance Resolution Plan amount of ₹110 lakhs (after adjusting the ₹50 lakhs Performance Security) in five tranches, with the final tranche deposited on 05.01.2022. Respondent No. 1 initiated computation of CIRP costs and engaged Mr. Anil Mittal, retired GM of a PSU bank, as Monitoring Professional for implementation. As per the provisional monthly MIS, the Corporate Debtor was generating cash profits post-operational expenses. Hence, in accordance with the approved Resolution Plan, the entire ₹160 lakhs was distributable to creditors.

e. Respondent No. 1, after discussions and confirmation from the Monitoring Committee (including the Applicant) in the meeting dated 06.01.2022, distributed the Resolution Plan proceeds to financial and operational creditors as per the Plan. Entire CIRP costs were discharged, and all distributions made, except ₹63,49,326/- payable to M/s. Hinduja Leyland Finance Ltd., a secured financial creditor who has failed to hand over physical possession despite requests. Respondent No. 1 has also filed IA No. 1129/2022 on 26.02.2022 seeking appropriate directions against Hinduja Leyland Finance Ltd.

f. The respondent stated that Applicant has paid Rs. 160.00 lacs only, as committed in approved Resolution Plan. In the Resolution Plan, though Applicant agreed to pay actual unpaid CIRP cost, but entire such payment was to be adjusted from the amount proposed for the secured financial creditors, and therefore, liability of the Applicant would have remained unaffected even if there were unpaid CIRP cost.

g. As per the approved Resolution Plan, the Applicant was entitled to acquire management and control of the Corporate Debtor from the “Effective Date,” defined as the date of full payment under the Plan. The final tranche was paid on 05.01.2022. However, the Applicant prematurely assumed control immediately after the approval of the Plan on 26.11.2021, without completing the required payment.

h. Without prior authorization from Respondent No. 1 and in his absence, the Applicant visited the Corporate Debtor’s premises, sought access to records and operations during the CIRP period, and approached third parties, including the landlord of the godowns and the Deputy Commissioner of Income Tax.

i. It is submitted that pursuant to publication of Form - G on 18.06.2021, the Applicant submitted Expression of Interest ("Eol") and thereafter, Resolution Plan on 07.08.2021 and revised Resolution Plan on 23.08.2021 along with declaration and undertaking etc. was submitted by the Applicant. As per the said undertaking which forms part of the Resolution plan, which inter alia acknowledged and confirmed the following:

• “…….

• a) I understand that Flywheel Logistic Private Limited is a going concern and Resolution Professional {RP) is managing its day-to-day operations since the date of commencement of Corporate Insolvency Resolution Process (CIRP).

• b) As part of Information Memorandum, RP has already made available Provisional Financial Statement as on CIRP commencement date. However, since Corporate Debtor is a going concern, therefore, components I value of current assets and current liabilities keep on changing due to ongoing operations. We, accordingly, confirm as under:

• i) The successful resolution applicant shall be entitled I responsible for all profit I loss earned/ incurred by Corporate Debtor due to ongoing operations during CIRP.

• ii) The successful Resolution Applicant shall be entitled and handed over all the assets of the Corporate Debtor, as available on the date of approval of Resolution Plan by the Hon'ble NCLT including cash and bank balances, after meeting approved C1RP cost, available in the CIRP account of Corporate Debtor. Resolution Professional shall not be liable to compensate to the successful Resolution Applicant for any change in the current assets & liabilities of the Corporate Debtor, as mentioned in provisional financial statement as on the date of commencement of CIRP. We confirm that we have carried out our own Due Diligence about the Corporate Debtor on the basis of information I details made available by Resolution Professional by way of Information Memorandum, physical inspection of assets, information available in public domain etc. and we have submitted our Resolution Plan to acquire Corporate Debtor as a going concern on "as it is where it is", "as it is what is" and "without recourse" basis as on the date of approval of Resolution Plan by the Hon'ble NCLT and Resolution Professional / CoC shall not be responsible for giving possession."

j. The Respondent submitted that it is clear that use of the words "after meeting approved CIRP cost from the cash & bank Balance", in the single sentence itself confirms that RP was entitled to use available Cash & Bank balance for paying unpaid CIRP cost accruing out of the operating expenses and available surplus  balance, thereafter, was required to be handed over to the Applicant. In at all the available cash and bank balance was not sufficient to pay the CIRP cost relating to operational expenses of the Corporate Debtor, then only appropriate amount would be deducted from the share of secured financial creditor. Nevertheless, the RP after making payment of CIRP cost, credited surplus amount of Rs.13,98,898/- on 17.02.2022 to the Applicant.

k. The respondent further submitted that the IBBI in its Circular No. IBBI/IP/013/2018 dated 12.06.2018, at Para / Point No. 7, has clearly stipulated that RP firstly shall ensure to make payment of CIRP cost from the internal source of the Corporate Debtor and if the same is not sufficient, then the same shall be met as per provisions of Section 30 or Section 53 of IBC.

l. The Respondent has submitted that the Applicant has not paid a single penny extra over the above Rs 160.00 lacs for acquiring the corporate Debtor as proposed in the Resolution Plan. The RP in consonance IBBI Circular dated 12.06.2018 adjusted that CIRP cost from the funds available / receipt with the Corporate Debtor, and any funds remaining was handed over to the Applicant without any protest or demur. Thus, the resolution plan was distributed amongst the creditor as which is illustrated as below:

# 4. Rejoinder on behalf of Applicant

a. The Applicant submitted an approved Resolution Plan is sacrosanct and must be implemented in its entirety. Upon approval by the Committee of Creditors under Section 30(4) and by the Adjudicating Authority under Section 31(2) of the IBC, 2016, the Resolution Plan becomes binding on the Corporate Debtor, its employees, members, creditors, guarantors, and all stakeholders, including government authorities. Further, the interpretation of Respondent No. 1 regarding the commencement of the Resolution Plan is misconceived. The Plan takes effect from the date of its approval by the Adjudicating Authority, i.e., 26.11.2021. Accordingly, any CIRP costs outstanding as of that date constitute "unpaid CIRP costs" and must be dealt with strictly in accordance with the terms of the approved Resolution Plan.

b. The Applicant submitted that the Undertaking forming part of the Resolution Plan has been grossly misinterpreted by the Respondent no. l and has been read independent of the Resolution Plan. The relevant portion of the undertaking is reproduced hereinbelow:

• “ii) The successful Resolution Applicant shall be entitled and handed over all the assets of the Corporate Debtor, as available on the date of approval of Resolution Plan by the Hon’ble NCLT ;including cash and bank balances, after meeting approved CIRP cost, available in the CIRP account of Corporate Debtor. Resolution Professional shall not be liable to compensate to the successful Resolution Applicant for any change in the current assets & liabilities of the Corporate Debtor, as mentioned in provisional financial statement as on date of commencement of CIRP.”

c. The Applicant submitted that that a plain reading of the undertaking clearly establishes that the Successful Resolution Applicant is entitled  only to the assets of the Corporate Debtor, and not its liabilities. The phrase “all the assets” — as opposed to “net assets” — unequivocally supports this position. Further, the relevant date for ascertaining the assets to be transferred is the date of approval of the Resolution Plan, i.e., 26.11.2021, and thus, all assets existing as on that date are to be handed over in terms of the approved plan.

d. The Applicant in its contention has submitted that the undertaking, when read holistically with the Final Resolution Plan, merely permits the use of cash and bank balances as on the date of approval of the Resolution Plan only towards meeting CIRP costs approved up to that date. It cannot, under any interpretation, be extended to cover unpaid or unapproved CIRP costs that may arise post-approval, especially in light of the well-settled legal principle that the Resolution Professional becomes functus officio upon approval of the Resolution Plan. Any deviation from the approved mechanism would be contrary to the express terms of the Resolution Plan.

e. It is submitted that even if the Respondent No.1 is deemed to have permitted utilisation of cash and bank balances for payment of unpaid CIRP costs, such payment must be treated as having been made by the Applicant and accordingly adjusted against amounts earmarked for Secured Financial Creditors under the Resolution Plan. Despite repeated requests, Respondent No. 1 has failed to furnish the final list of unpaid CIRP costs. The undertaking cannot override or be interpreted in isolation from the binding provisions of the approved Resolution Plan.

ANALYSIS AND FINDINGS

# 5. We have heard the Ld. Counsel on behalf of the Applicant/ SRA and further perused the averments made in the application, reply filed by the Resolution Professional of the Corporate Debtor, and Rejoinder filled by the Applicant.

# 6. On perusal of the record we find that this Adjudicating Authority the admitted the Application filed under Section 7 of the Code for commencement of Corporate Insolvency Resolution Process of the Corporate Debtor vide its order dated 06.10.2020. Subsequently we observe, this Adjudicating Authority approved the Resolution Plan that vide Order dated 26.11.2021.

# 7. The point of contention before this Adjudicating Authority is that whether the Unpaid CIRP dues that have been paid by the Resolution Professional post approval of the Resolution plan is a valid transaction or not? And whether the Resolution professional has exceeded its jurisdiction by continuing to control vital bank accounts of the Corporate Debtor for almost two months after approval of the Plan.

# 8. That pursuant to the publication of Form-G dated 18.06.2021, the Applicant submitted its Expression of Interest within the prescribed timelines. Thereafter, the Applicant submitted its Resolution Plan on 07.08.2021, followed by a revised Resolution Plan on 23.08.2021, along with undertaking dated 23.08.2021. The relevant portion of the excerpt of the Undertaking dated 23.08.2021 is reproduced hereinbelow for ready reference:

• “The successful Resolution Applicant shall be entitled and handed over all the assets of the Corporate Debtor, as available on the date of approval of Resolution Plan by the Hon'ble NCLT including cash and bank balances, after meeting approved CIRP cost, available in the CIRP account of the Corporate Debtor. The Resolution Professional shall not be liable to compensate to the successful Resolution Applicant for any change in the current assets & current liabilities of the Corporate Debtor, as mentioned in provisional financial statement as on the date of commencement of CIRP.”

# 9. That the members of COC, applying their respective commercial wisdom, approved the resolution plan submitted by the Respondent, Mr.Shyam Sundar Agarwal for resolution amount of Rs.160 lacs with 93.40% voting share in its favour.

# 10. The Committee of Creditors (CoC), in exercise of its commercial wisdom, duly evaluated and approved the Resolution Plan submitted by the Resolution Applicant in its 9th meeting, after considering all relevant disclosures and supporting documents submitted by the Resolution Applicant. This Adjudicating Authority, acknowledging the its limited scope of judicial review under the IBC intervenes only where the plan violates provisions of law. In the present case, no such infirmity had been brought to light; therefore, the Resolution Plan stood approved by this Authority in accordance with the decision of the CoC vide order dated

26.11.2021.

# 11. We are inclined to refer to the minutes of the Committee of Creditors' meeting held on 24th August, 2021, during which the voting on the resolution plan was conducted and the outcome thereof was duly recorded.

• “Resolution No. 1

• "RESOLVED THAT resolution plan received from Mr. Shyam Sundar Agarwal for Rs. 160.00 lacs, a copy of which duly circulated by the Chairman for purpose of identification, was placed on the table of the meeting, and having ranking of H-1 (with the score of 67.65 marks) as per evaluation matrix, be and is hereby approved. Resolution No, 4

• RESOLVED THAT Resolution Professional be and is hereby authorised to submit Resolution Plan, as approved by Committee of Creditors by requisite voting share, to Adjudicating Authority along with compliance certificate in Form H of the Schedule of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and to do all such acts and deeds as may be necessary and expedient relating thereto."

• RESOLVED FURTHER THAT Resolution Professional be and is hereby authorised to issue Letter of Intent (LOI) to the successfully Resolution Applicant as per the terms contained in RFRP and Resolution Plan, on approval of resolution plan by the CoC.

• RESOLVED FURTHER THAT after the date of order of Hon'ble Adjudicating Authority approving the resolution plan, all expenses to be incurred by the Resolution Professional including the professional fees payable to Resolution Professional for monitoring the implementation of Resolution Plan from the date of order of Hon'ble Adjudicating Authority till implementation of resolution plan, as approved by monitoring committee appointed in terms of the resolution plan, shall be paid by successful Resolution Applicant.

# 12. That pursuant to the approval of the Resolution Plan by the COC, the RP issued a Letter of Intent dated 02.09.2021 to the Respondent being the successful Resolution Applicant, which was unconditionally accepted by the Respondent on 04.09.2021. In pursuance of which the Applicant/ SRA deposited the Performance Security for Rs. 50 lakhs through RTGS in the CIRP account of the Corporate Debtor.

# 13. In view of the material on record and the sequence of events, it is evident that the Successful Resolution Applicant (SRA), at the time of submission of its Resolution Plan, had furnished a categorical undertaking wherein it expressly acknowledged that it would be entitled to and handed over all  the assets of the Corporate Debtor, as available on the date of approval of the Resolution Plan by the Hon’ble Adjudicating Authority. This included cash and bank balances, subject to the condition that the Corporate Insolvency Resolution Process (CIRP) costs, as approved, shall be met from the CIRP account prior to any such handover.

# 14. Moreover, the same undertaking clarified that the SRA would also be responsible for all expenses incurred by the Resolution Professional (RP) post-approval of the plan by the Hon’ble Adjudicating Authority until its full implementation, including professional fees payable to the RP, as may be approved by the Monitoring Committee constituted under the Resolution Plan.

# 15. Crucially, the Committee of Creditors (CoC), in its commercial wisdom, deliberated and approved these stipulations. During its meeting held on 24th August 2021, wherein the Resolution Plan submitted by the Resolution Applicant was voted upon and approved, the CoC had also simultaneously passed a resolution to the effect that all CIRP costs, including those incurred post-approval for monitoring purposes, shall be borne and paid by the SRA, subject to approval of the Monitoring Committee.

# 16. It is, therefore, beyond ambiguity that the CoC, while relying on the undertaking of the Resolution Applicant, took a conscious and informed commercial decision to proceed with the said Resolution Plan, with full knowledge and acceptance of the cost allocation mechanism as proposed. The deduction of the CIRP costs by the RP from the available funds of the Corporate Debtor, prior to handover to the SRA, is thus in strict conformity with the Resolution Plan, the CoC’s recorded decision, and the undertaking given by the SRA.

# 17. In view of the foregoing, this Adjudicating Authority finds no merit in the present application i.e. I.A. No. 527 of 2022 in Company Petition (IB) No. 651(ND) of 2020 stands dismissed.

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