2023 (3) TMI 648 - AT - Insolvency & Bankruptcy

Seeking approval of the resolution plan - whether the employees/workmen whom the Appellants are representing as various office bearers of the trade unions had put up their claim with proof in order to recover the said amount as has been done by 11 other employees of the same Corporate Debtor who had filed their applications in accordance with Regulations?

HELD THAT:- It has been repeatedly held that IBC is a complete code in itself. Various Regulations have been made in terms of various provisions of the Code in which Regulations have also been made which came into force w.e.f. 01.12.2016. Chapter IV of the Regulations, dedicated to the proof of claims, of various class of creditors in which Regulation 9 is related to the claims of the workmen/employees.

A close reading of Regulation 9(2) of the Regulations says that where there are dues to be paid to the workmen or employees of the Corporate Debtor, they may collectively choose an authorised representative to submit their claim with proof but in Form-E of the Schedule. The word used in Regulation 9(2) of the Regulations is ‘may’ as against ‘shall’ in Regulation 9(1) of the Regulations which means that Regulation 9(2) of the Regulations is provided more as a matter of convenience for the workmen or employees but still demands a declaration in respect of claim with proof and verification of the Form ‘Particulars’ mentioned therein.

In the present case, firstly, there is no such claims set up by the workmen/employees individually in terms of Regulation 9(1) of the Regulations by resorting to form-D as is evident from Annexure B appended with the application i.e. CA (IB) No. 650/KB/2019. Besides, it has been the positive case of Respondent that even this list was never received by the RP because it has been mentioned in the letter dated 11.03.2019 (Annexure A4) that the said list shall be sent by the office bearers of the Appellants by registered post but no evidence is brought on record in this regard that the list was ever sent by registered post to the RP who has categorically denied it by way of an affidavit filed before the Adjudicating Authority. Evidently, there is a total non-compliance of Regulation 9(1) of the Regulations. Similarly, there is non-compliance of Regulation 9(2) of the Regulations as well because Annexure A4 dated 11.03.2019 in no manner an authority given to the ‘authorised representative’ rather it is more of a covering letter by the office bearers of the trade unions of the workmen and the clerks association. Therefore, even the provisions of Regulation 9(2) of the Regulations has not been complied with.

It has also come on record that a provision has been made to the extent 20% of total amount of Rs. 12.78 Crore in order to satisfy any amount in future which is yet to be claimed but it cannot be said that the amount which has been admitted has not been paid or made a provision in the resolution plan by the RP/SRA.

There are no illegality in the order by which the application has been dismissed - appeal dismissed.