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TMI Blog2020 (6) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... tor seeks to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor, declare moratorium and appoint Interim Resolution professional. 2. Part-I of the Application sets out about the Financial Creditor from which, it is evident that the Financial Creditor is a Registered partnership Firm. Part-Il of the Application gives all the particulars of the Corporate Debtor from which it is evident that the Corporate Debtor is a Private Limited Company with CIN:U55101TN2002PTC048987 which was incorporated on 23.05.2002 and that its Authorized share capital and paid up capital is Rs. 44,00,00,000/- and Rs. 43,55,65,208/- respectively. The Registered Office of the Corporate Debtor as per the Application is stated to be situated at #1 238, Old Mahabalipuram Road, Semmencherry, Chennai - 600 119. 3. Part-Ill of the Application shows that the Financial Creditor has proposed the name of one Mr. Sambasivam Kannan as the "Interim Resolution Professional" (IRP). From Part-IV of the Application, it is seen that a sum of Rs. 45,98,973/- including interest is bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the CIRP of the Corporate Debtor, the Financial Creditor has filed its claim before the Resolution Professional on 05.10.2017 and since the Resolution Professional has not considered the claim of the Financial Creditor and has not issued any reply to the same, the Financial Creditor was compelled to file CA/ 125/18/2018 before this Tribunal and by its order dated 05.07.2018 this Tribunal directed the Financial Creditor to approach the Resolution Professional for necessary action. 8. The Learned Counsel for the Financial Creditor submitted that in the meanwhile this Tribunal vide its order dated 17.09.2018 passed in MA/264/1B/2018, had approved the Resolution Plan in relation to the Corporate Debtor. It was submitted by the Learned Counsel for the Financial Creditor that as per Clause 4 of the Resolution Plan the claim of the Financial Creditor is categorized as "Disputed Claim" and it states that the same shall be paid on the basis of the outcome of the adjudication of the legal proceedings. 9. Under these circumstances, the Financial Creditor has stated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the amount to the Disputed Creditors on the basis of the outcome of the adjudication of the legal proceedings. Further, it was contended that as per Section 31(3) of IBC, 2016, the Resolution Plan approved by this Tribunal shall be binding on the Corporate Debtor and its employees, members, creditors, guarantors and other stakeholders involved in the Resolution Plan.Therefore, once the Resolution Plan is approved by this Tribunal, it becomes binding on all the creditors, including the Financial Creditor who has failed to prove its claim in accordance with the provisions of the Code. Further, it was submitted that the Resolution Applicant has not recognized the claim of the Financial Creditor and the Financial Creditor is also aware of the position of the Corporate Debtor and ought to have got its claim adjudicated in accordance with law. 13. The Learned Counsel for the Corporate Debtor submitted that the right of the Financial Creditor is to adjudicate its claims and that this Tribunal has no jurisdiction to adjudicate a disputed debt and the same lies within the purview of the Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... electronic form in Form C of the Schedule: Provided that such person may submit supplementary documents or clarifications in support of the claim before the constitution of the committee. (2) The existence of debt due to the financial creditqr may be proved on the basis of - (a) the records available with an information utility, if any; or (b) other relevant documents, including - (i)a financial contract supported by financial statements as evidence of the debt; (ii) a record evidencing that the amounts committed by the financial creditor to the corporate debtor under a facility has been drawn by the corporate debtor; (iii) financial statements showing that the debt has not been paid; or (iv) an order of a court or tribunal that has adjudicated upon the non-payment of a debt, if any. The term 'Financial contract' is defined in clause (d) sub- section 1 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016; (d) "financial contract" means a contract between a corporate debtor an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be in the nature of the 'Financial Contract'. 20. Also in the matter of Prayag Polytech Private Limited - Vs- M/S. Good Marketing and Sales Private Limited, in IB- 219/(ND)/2019, the NCLT, New Delhi Bench has dealt with the issue of 'Financial Contract' and has held that the primary onus about the details of the 'Financial Contract' and default is required to be demonstrated by the petitioner and in the instant case, the Financial Creditor, who is not able to place on record any 'Financial Contract', to demonstrate on its own the existence of 'default'.The said view is also upheld by the Hon'ble NCLAT in Prayag Polytech Pvt. Ltd. -VS- M/S. Good Marketing and Sales Private Limited, in Company Appeal (AT)(Insolvency) No. 1307 of 2019 dated 25.11.2019, wherein the Hon'ble NCLAT has concurred with the view taken by NCLT, New Delhi, that the default as alleged cannot be determined in absence of any requisite document. 21. Further, in relation to the amount which is payable to the Financial Creditor under the Resolution Plan, it is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on the basis of the outcome of the adjudication of the legal proceedings. The claim of the Financial Creditor was rejected by the Resolution Professional at the first instance in its entirety and based on the list of admitted claim given by the Resolution professional, the Resolution Applicant has submitted the Resolution Plan to the Committee of Creditor and the same was also approved by this Tribunal, thereby the amount which is payable to be Financial Creditor has not been crystallized. The Financial Creditor ought to have approached the appropriate forum for the adjudication of the claim. However, the Financial Creditor is now trying to adjudicate the amount that is due and payable by the Corporate Debtor to the Financial Creditor by filing this Application and by agitating this issue once again before this Tribunal.lt is time and again reiterated that the proceedings before this Authority is of summary in nature and this Tribunal unlike the Civil Court cannot indulge in the luxury of taking evidence, orai or otherwise as to its existence. 23. Thus, in view of the reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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