IMPORTANT POINTS
(1) Approval of resolution plan – If a claim is submitted by an operational creditor claiming itself as a financial creditor, claim would have to be accorded due consideration in category to which it belongs provided it is verifiable.
(2) Power of review/recall – Even in absence of a specific provision empowering Tribunal to recall its order, Tribunal has power to recall its order.

JUDGMENT :

MANOJ MISRA, J.

1. These appeals under Section 62 of the Insolvency and Bankruptcy Code, 2016¹[IBC] are directed against the judgment and order²[Order dated 24.11.2022] of the National Company Law Appellate Tribunal, Principal Bench, New Delhi³[NCLAT] passed in Company Appeal (AT) (Ins.) No. 867 of 2021 and I.A. No. 2315 of 2021, whereby the appellant’s appeal against the order of the National Company Law Tribunal, New Delhi⁴ [NCLT] dated 05.04.2021 has been dismissed.

2. By the order dated 05.04.2021, NCLT had dismissed two applications filed by the appellant under Section 60(5) of the IBC, namely:

(a) I.A. No.1380/ 2021, inter alia, to recall the order dated 04.08.2020 passed by NCLT in I.A. No. 2201 (PB)/2020 in Company Petition No. (IB)-272 (ND)/ 2019; and

(b) I.A. No.344/ 2021, inter alia, questioning the decision of the Resolution Professional (hereinafter referred to as the RP) in treating the appellant as an operational creditor and not informing the appellant about the meetings of the Committee of Creditors⁵[COC].

Factual Background

3. The appellant being a statutory authority constituted under Section 3 of the U.P. Industrial Area Development Act, 1976⁶[1976 Act] acquired land for setting up an urban and industrial township. On 28.10.2010, one of the plots of land acquired by it, namely, Plot No. 01-C, Sector 16C, Greater Noida, District Gautam Budh Nagar, U.P., was allotted, by way of lease for 90 years, to M/s. JNC Construction (P) Ltd (the Corporate Debtor⁷[CD]) for a residential project, by charging premium, payable in instalments starting from 29.10.2012 up to 29.04.2020, after initial moratorium of 24 months, albeit subject to payment of interest as well as penal interest, while reserving right to cancel the lease and resume the demised land, subject to certain conditions. The CD committed default in payment of instalments and was served with demand cum pre-cancellation notice.

4. A Company Petition No. (IB) 272 (PB)/ 2019 was filed against the CD for initiating Corporate Insolvency Resolution Process⁸[CIRP], which was admitted on 30.05.2019. Consequent thereto, claims were invited through a public announcement.

5. Pursuant to the public notice, in the month of January 2020, appellant submitted a claim of Rs. 43,40,31,951, being unpaid instalments payable towards premium for the lease. The claim was set up by the appellant as a financial creditor of the CD.

6. However, the RP treated the appellant as an operational creditor and, vide e-mail dated 04.02.2020, requested the appellant to submit its claim in Form B, as an operational creditor of the CD.

7. The appellant did not submit its claim afresh as an operational creditor. In the meantime, the COC approved a plan which was presented to the Adjudicating Authority (NCLT) for approval. The NCLT vide order dated 04.08.2020 approved the same.

8. On getting information through letter dated 24.09.2020 that the plan has been finalised and approved, on 06.10.2020 the appellant filed I.A. No.344 of 2021 questioning, inter alia, the resolution plan, the decision of the RP to treat the appellant as an operational creditor, and all actions in pursuance thereof. Another I.A. No.1380/2021 was filed on 15.03.2021 seeking, inter alia, recall of the order dated 04.08.2020.

9. In the two applications referred to above, the appellant pleaded, inter alia, that, --

(a) there was gross error on part of the RP in treating the appellant as an operational creditor, particularly, when it had no adjudicatory power under Regulation 13 of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016⁹ [CIRP Regulations 2016];

(b) the resolution plan erroneously states that appellant did not submit a claim when, in fact, it was submitted;

(c) appellant being owner of the land with statutory charge over assets of the CD ought to have been given top priority for its dues as a secured creditor;

(d) no opportunity of hearing was given to the app