[Cites 7, Cited by 0]
Kerala High Court
K. Sunil Kumar vs Union Of India on 17 December, 2025
2025:KER:97708
W.P.(C). Nos.32146 & 32152 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 17TH DAY OF DECEMBER 2025 / 26TH AGRAHAYANA, 1947
WP(C) NO. 32146 OF 2025
PETITIONER:
K. SUNIL KUMAR
AGED 41 YEARS
PLOT NO 843, D NO 43, BEHIND TEMPLE JUBILEE HILLS,
HYDERABAD, PIN - 500033
BY ADVS.
SRI.ISAAC THOMAS
DR.THUSHARA JAMES
SRI.P.G.CHANDAPILLAI ABRAHAM
SHRI.JOHN VITHAYATHIL
RESPONDENTS:
1 UNION OF INDIA
MINISTRY OF CORPORATE AFFAIRS, SHASTRI BHAWAN, NEW-DELHI
REPRESENTED BY ITS SECRETARY, PIN - 110001
2 MINISTRY OF CORPORATE AFFAIRS
CORPORATE BHAWAN, BMC ROAD, THIRKKAKARA, KOCHI - KERALA.
REPRESENTED BY REGIONAL DIRECTOR, PIN - 682021
3 REGISTRAR OF COMPANIES
CORPORATE BHAWAN, BMC ROAD, THIRKKAKARA, KOCHI,
PIN - 682021
4 UCO BANK
ASSET MANAGEMENT BRANCH 6-3-1108, GROUND FLOOR,
NAVABHARATH CHAMBERS, RAJ BHAVAN ROAD, SOMAJIGUDA,
HYDERABAD - REPRESENT BY ITS AUTHORIZED OFFICER,
PIN - 500082
5 NATIONAL COMPANY LAW TRIBUNAL - KOCHI BENCH
COMPANY LAW BHAVAN, BMC ROAD, KUNNUMPURAM, THIKKAKARA,
P.S, KAKKANAD, KOCHI - REPRESENTED BY ITS DEPUTY
REGISTRAR, PIN - 682021
2025:KER:97708
W.P.(C). Nos.32146 & 32152 of 2025
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6 NATIONAL COMPANY LAW TRIBUNAL
BLOCK NO. 3, GROUND 6TH, 7TH & 8TH FLOOR, C.G.O. COMPLEX,
LODHI ROAD, NEW-DELHI - REPRESENTED BY ITS REGISTRAR,
PIN - 110003
7 M/S. KASARGOD POWER CORPORATION LIMITED
332 BARE VILLAGE, MYLATTI POST, KASARGOD, KERALA - REP. BY
ITS RESOLUTION PROFESSIONAL, MR. NETHI MALLIKARJUNA SETTY,
PIN - 671123
8 JOSSY STEEPHEN KATTUR
REGISTRATION NO: IBBI/IPA002/IP-N01056/2021-2022/13627,
BARONS 16 C, SKYLINE IMPERIAL GARDENS, BEHIND JLN STADIUM,
ERNAKULAM, KERALA., PIN - 682025
BY ADVS.
O.M.SHALINA, DEPUTY SOLICITOR GENERAL OF INDIA
SHRI.SIBY CHENAPPADY
SHRI.AKHIL SURESH
SMT.ANU GEORGE
SHRI.AIBEL MATHEW SIBY
SMT.ELANA ROSE SIBY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.12.2025, ALONG WITH WP(C).32152/2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:97708
W.P.(C). Nos.32146 & 32152 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 17TH DAY OF DECEMBER 2025 / 26TH AGRAHAYANA, 1947
WP(C) NO. 32152 OF 2025
PETITIONER:
MMS STEEL & POWER PRIVATE LIMITED
17/2D, ONGC ROAD, NARANAMANGALAM NARIMANAM P.O., NAGORE,
NAGAPATNAM DISTRICT, TAMIL NADU - REPRESENTED BY ITS
AUTHORIZED REPRESENTATIVE, PIN - 611002
BY ADVS.
SRI.ISAAC THOMAS
SRI.P.G.CHANDAPILLAI ABRAHAM
SHRI.JOHN VITHAYATHIL
SHRI.SANTHOSH MATHEW (SR.)
RESPONDENTS:
1 UNION OF INDIA
MINISTRY OF CORPORATE AFFAIRS, SHASTRI BHAWAN, NEW-DELHI
REPRESENTED BY ITS SECRETARY, PIN - 110001
2 MINISTRY OF CORPORATE AFFAIRS
CORPORATE BHAWAN, BMC ROAD, THIRKKAKARA, ERNAKULAM, KOCHI
REPRESENTED BY REGIONAL DIRECTOR, PIN - 682021
3 REGISTRAR OF COMPANIES
CORPORATE BHAWAN, BMC ROAD, THIRKKAKARA, ERNAKULAM KOCHI,
PIN - 682021
4 NATIONAL COMPANY LAW TRIBUNAL - KOCHI BENCH
COMPANY LAW BHAVAN, BMC ROAD, KUNNUMPURAM, THIKKAKARA,
P.O, KAKKANAD, ERNAKULAM KOCHI - REPRESENTED BY ITS DEPUTY
REGISTRAR, PIN - 682021
5 NATIONAL COMPANY LAW TRIBUNAL
BLOCK NO. 3, GROUND 6TH, 7TH & 8TH FLOOR, C.G.O. COMPLEX,
LODHI ROAD, NEW-DELHI - REPRESENTED BY ITS REGISTRAR,
PIN - 110003
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W.P.(C). Nos.32146 & 32152 of 2025
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6 M/S KASARGOD POWER CORPORATION LIMITED
332 BARE VILLAGE, MYLATTI POST, KASARGOD, KERALA - . REP.
BY ITS RESOLUTION PROFESSIONAL, MR. NETHI MALLIKARJUNA
SETTY [IBBI/IPA001/IP-P01251/2018-2019/11958], PIN -
671123
7 NETHI MALLIKARJUNA SETTY
[IBBI/IPA001/IP-P01251/2018-2019/11958] FLAT NO. 101,
LAUREL RESIDENCY, PANCHAVATI COLONY, MANIKONDA, HYDERABAD,
TELANGANA, PIN - 500089
8 JYOTHI THOTAKURI
FLAT NO. 14, SRI SAI KRISHNA APARTMENTS, MASAB TANK,
HYDERABAD, TELANGANA, PIN - 500028
9 SUDHAKAR KOCHERLA
FLAT NO. 14, SRI SAI KRISHNA APARTMENTS, MASAB TANK,
HYDERABAD, TELANGANA, PIN - 500028
10 UCO BANK
ASSET MANAGEMENT BRANCH 6-3-1108, GROUND FLOOR,
NAVABHARATH CHAMBERS, RAJ BHAVAN ROAD, SOMAJIGUDA,
HYDERABAD, TELANGANA REPRESENT BY ITS AUTHORIZED OFFICER,
PIN - 500082
BY ADVS.
O.M.SHALINA, DEPUTY SOLICITOR GENERAL OF INDIA
SHRI.SIBY CHENAPPADY
SHRI.TERRY V.JAMES
SRI.HARSHAD.V.HAMEED
SMT.IRIS S.R.
SMT.ANU GEORGE
SHRI.AIBEL MATHEW SIBY
SMT.ELANA ROSE SIBY
OTHER PRESENT:
AKHIL SURESH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.12.2025, ALONG WITH WP(C).32146/2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:97708
W.P.(C). Nos.32146 & 32152 of 2025
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VIJU ABRAHAM, J.
-- -- -- -- -- -- -- -- -- -- -- -- --
W.P.(C) Nos.32146 & 32152 of 2025
-- -- -- -- -- -- -- -- -- -- -- -- --
Dated this the 17th day of December, 2025
JUDGMENT
In W.P.(C)No.32152 of 2025, the petitioner challenges
Ext.P3 order dated 21.08.2025 of the National Company Law
Tribunal(NCLT), Kochi Bench in IA (IBC)(Plan)/04/KOB/2025 in
CP(IBC)/20/KOB/2023, whereas in W.P.(C)No.32146 of 2025, the
petitioner challenges the very same order produced as Ext.P2 of
the National Company Law Tribunal, Kochi Bench in IA (IBC)
(Plan)/04/KOB/2025 in CP(IBC)/20/KOB/2023 and also Ext.P3
consequential order.
2. W.P.(C)No.32152 of 2025 is filed by a member of the
Committee of Creditors holding 80.11% voting shares in the
Committee of Creditors, whereas W.P.(C)No.32146 of 2025 is filed
by a person who has extended a personal guarantee as against
loans taken by the 7th respondent company, which is undergoing a
corporate insolvency resolution process. By Ext.P3 order, which is
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W.P.(C). Nos.32146 & 32152 of 2025
impugned in W.P.(C)No.32152 of 2025, the resolution plan
submitted by the Resolution Professional was rejected by the
NCLT, Kochi and thereafter decided to give an opportunity to the
Corporate Debtor, the Applicant in the Section 7 petition, the
Resolution Professional, and the Secured Financial Creditor to
appear before the Adjudicating Authority and provide their
submissions in this regard, to arrive at a legally sound and just
conclusion to proceed further.
3. The learned Senior Counsel appearing for the petitioner
in W.P.(C) No.32152 of 2025 as well as the learned counsel
appearing for the petitioner in W.P.(C) No.32146 of 2025 submits
that Ext.P3 order of the NCLT, rejecting the resolution plan is not
an appealable order and therefore, the only remedy available to
them is to approach this Court filing the above writ petitions. In
view of the said contention raised by the petitioners, the first
issue to be resolved is as to whether Ext.P3 order, rejecting the
resolution proposal submitted by the Resolution Professional, is
appealable or not.
4. Section 30 of the Insolvency and Bankruptcy Code, 2016
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W.P.(C). Nos.32146 & 32152 of 2025
(hereinafter referred to as 'the IBC 2016') deals with 'submission
of resolution plan'. Section 31 of the IBC 2016 deals with
'approval of resolution plan', which reads as follows:
"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, it shall by order approve the
resolution plan which shall be binding on the corporate debtor
and its employees, members, creditors,[including the Central
Government, any State Government or any local authority to
whom a debt in respect of the payment of dues arising under
any law for the time being in force, such as authorities to whom
statutory dues are owed,] guarantors and other stakeholders
involved in the resolution plan.
[Provided that the Adjudicating Authority shall, before
passing an order for approval of resolution plan under this sub-
section, satisfy that the resolution plan has provisions for its
effective implementation.]
(2) Where the Adjudicating Authority is satisfied that the
resolution plan does not confirm to the requirements referred
to in sub-section (1), it may, by an order, reject the resolution
plan.
(3) After the order of approval under sub-section (1),--
(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
relating to the conduct of the corporate insolvency resolution
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W.P.(C). Nos.32146 & 32152 of 2025
process and the resolution plan to the Board to be recorded on
its database.
[(4)The resolution applicant shall, pursuant to the
resolution plan approved under sub-section (1), obtain the
necessary approval required under any law for the time being
in force within a period of one year from the date of approval of
the resolution plan by the Adjudicating Authority under sub-
section (1) or within such period as provided for in such law,
whichever is later:
Provided that where the resolution plan contains a
provision for combination, as referred to in Section 5 of the
Competition Act, 2002 (12 of 2003), the resolution applicant
shall obtain the approval of the Competition Commission of
India under that Act prior to the approval of such resolution
plan by the committee of creditors.]"
(underline supplied)
Therefore, going by Section 31(1), if the Adjudicating Authority is
satisfied that the resolution plan as approved by the committee of
creditors meets the requirements as referred to in sub-section (2)
of Section 30, it shall, by order, approve the resolution plan and
Section 31(2) mandates that when the Adjudicating Authority is
satisfied that the resolution plan does not confirm to the
requirements referred to in sub-section (1), it may, by an order,
reject the resolution plan. Therefore, a power is given to the
adjudicating authority either to approve the resolution plan or to
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W.P.(C). Nos.32146 & 32152 of 2025
reject the same by an order in this regard.
5. Section 32 deals with 'appeals', which reads as follows:
"32. Appeal.--
Any appeal from an order approving the resolution plan shall be in
the manner and on the grounds laid down in sub-section (3) of
Section 61."
Going by Section 32, an appeal from an order approving the
resolution plan shall be in the manner and on the grounds laid
down in sub-section (3) of Section 61.
6. Section 61 deals with 'Appeals and Appellate Authority',
which reads as follows:
"61. Appeals and Appellate Authority.--
(1) Notwithstanding anything to the contrary contained
under the Companies Act, 2013 (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) Every appeal under sub-section (1) shall be filed within
thirty days before the National Company Law Appellate Tribunal:
Provided that the National Company Law Appellate
Tribunal may allow an appeal to be filed after the expiry of the
said period of thirty days if it is satisfied that there was sufficient
cause for not filing the appeal but such period shall not exceed
fifteen days.
(3) An appeal against an order approving a resolution plan
under Section 31 may be filed on the following grounds, namely:--
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W.P.(C). Nos.32146 & 32152 of 2025
(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
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;
(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.
[(4) An appeal against a liquidation order passed under
section 33, or sub-section (4) of section 54L, or sub-section (4) of
section 54N, may be filed on grounds of material irregularity or
fraud committed in relation to such a liquidation order.
(5) An appeal against an order for initiation of corporate
insolvency resolution process passed under sub-section (2) of
section 54-O, may be filed on grounds of material irregularity or
fraud committed in relation to such an order.]"
(underline supplied)
Going by the mandates of Section 61, any person aggrieved by the
order of the Adjudicating Authority under this part may prefer an
appeal to the National Company Law Appellate Tribunal. Section
61(3) mandates that an appeal against an order approving a
resolution plan under Section 31 may be filed on the grounds
enumerated in Section 61(3). The submission of the learned
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W.P.(C). Nos.32146 & 32152 of 2025
Senior Counsel appearing for the petitioner in W.P.(C) No.32152
of 2025 is that, in view of the specific wording in Section 32 that
an "appeal from an order approving the resolution plan", an
appeal will lie only against an order approving the resolution plan
and not against an order rejecting the same. As I have already
stated, Section 31 gives power to the Adjudicating Authority
either to accept or to reject a resolution plan, by an order in this
regard. Section 61 mandates that any person aggrieved by the
order of the Adjudicating Authority may prefer an appeal to the
National Company Law Appellate Tribunal. Section 32 only
mandates that if the appeal is against the order approving the
resolution plan, it shall be in the manner and on the grounds laid
down in sub-section (3) of Section 61. Sub-section (3) of Section
61 provides the grounds on which an appeal will lie against an
order approving a resolution plan. When Sections 31, 32 and 61 of
IBC 2016 are read together, the only conclusion that could be
arrived at is that Section 61 provides for an appeal against an
order approving the resolution plan or rejecting the same.
In the light of the above, I am of the opinion that this Court
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W.P.(C). Nos.32146 & 32152 of 2025
need not go into the merits of the matter, which can be duly
considered by the Appellate Authority, the National Company Law
Appellate Tribunal, in a properly constituted appeal. Leaving open
such right of the petitioners to file an appeal as provided under
Section 61(1), the above writ petitions are disposed of. It is made
clear that the periods spent on prosecuting these writ petitions
could be excluded while computing the period of limitation for
filing an appeal under Section 61(2). To facilitate the filing of the
appeal as directed above, the interim order granted by this Court
in these cases on 25.08.2025, shall continue for a further period
of one month from today.
Sd/-
VIJU ABRAHAM
JUDGE
sm/
2025:KER:97708
W.P.(C). Nos.32146 & 32152 of 2025
APPENDIX OF WP(C) NO. 32146 OF 2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER DATED 21.02.2025
IN C.P. (IB) NO. 04 OF 2025 OF THE 5TH
RESPONDENT
Exhibit P2 TRUE COPY OF THE ORDER DATED 21.08.2025
IN IA (IBC) (PLAN)/4/KOB/2025 IN CP
(IBC)/20/KOB/2023 ON THE FILES OF THE 5TH
RESPONDENT
Exhibit P3 TRUE COPY OF THE ORDER DATED 21-08-2025
IN C.P. (IB) NO. 04 OF 2025 OF THE 5TH
RESPONDENT
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W.P.(C). Nos.32146 & 32152 of 2025
APPENDIX OF WP(C) NO. 32152 OF 2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER DATED 19.01.2024
IN CP (IBC)/20/KOB/2023 PASSED BY THE
NCLT KOCHI BENCH
Exhibit P2 TRUE COPY OF THE ORDER DATED 24.04.2025
ACCEPTING WITHDRAWAL OF THE IA
(IBC)/508/KOB/2024 & IA
(IBC)/517/KOB/2024 BEFORE THE NCLT KOCHI
Exhibit P3 TRUE COPY OF THE ORDER DATED 21.08.2025
IN IA (IBC) (PLAN)/4/KOB/2025 IN CP
(IBC)/20/KOB/2023
Exhibit P4 TRUE COPY OF THE BOARD RESOLUTION DATED
23.08.2025 OF THE PETITIONER AUTHORIZING
MR. K. TRILOK KUMAR TO ACT AS THE
AUTHORIZED REPRESENTATIVE OF M/S MMS
STEEL AND POWER PRIVATE LIMITED
RESPONDENT EXHIBITS
Exhibit R7(a) True Copy of the Resolution Plan dated
21-04-2025 for the 6th Respondent
Exhibit R7(b) True Copy of the 3rd CoC Meeting Minutes
dated 10th April 2024
Exhibit R7(c) True Copy of the Transaction Audit Report
dated 05.08.2024
Exhibit R7(d) True Copy of the 7th CoC Meeting Minutes
dated 16th August 2024 wherein the
Transaction Audit Report was placed
before the CoC
Exhibit R7 (f) True Copies of the valuation per Form H
dated 27.05.2025and Valuation Report
given by the Registered Valuer
Exhibit R7(g) True Copy of the Memo dated 30.05.2025
filed before the Hon'ble NCLT
Exhibit R7(e) True copy of the NCLT order dated 24.04.
