TMI Blog2020 (10) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... le claim within the stipulated time. Admittedly, in this case the Applicant has filed claim after the completion of CIRP period of 270 days and also the after the approval of the Resolution Plan by this Tribunal. The Counsel for the RP submits that the Applicant has filed the claim after a long delay that too after the approval of the Resolution Plan and in these circumstances the Application cannot be entertained by this Tribunal. Application not maintainable and is dismissed. - IA 1218/MB/2020 in CP (IB) 1137/MB/2017 - - - Dated:- 5-10-2020 - Hon ble Member (Judicial), Janab Mohammed Ajmal And Hon ble Member (Technical), Shri V. Nallasenapathy For the Applicant : Ms Maya Majumdar, Advocate For the Respondent : Ms Ankita Singhania with Ms Nidhi Pathania and Ms Amruta Modak, Advocates i/b. Linklegal Indian Law (For R1 R2) Mr Zal Andhyarujina (Sr. Advocate) with Mr Mahak Bhatt Advocate (For R3) ORDER Per : V. Nallasenapathy , Member ( Technical ) 1. This is an Application filed by the Applicant for the following reliefs: a) Condone the delay of 1111 days in submitting the proof of claim by the Applicant against the Corporate Debtor, M/s Jyot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Corporate Debtor on 03.08.2017 and reminders dated 22.11.2017, 03.01.2018 and 18.01.2018. Consequent to the issue of show cause notice and the demand notice, the Applicant passed an Order-in- Original (OIO) on 31.10.2018. 4. The Applicant submits that the Respondent Resolution Professional filed a Writ Petition on the file of the Hon ble Bombay High Court in WP No. 2441 of 2019 challenging the OIO dated 31.10.2018 passed by the Applicant, on the ground that the said order was passed during the period of moratorium of the Corporate Debtor. It is submitted that, at that time only the Applicant came to know about the CIRP order against the Corporate Debtor. The Applicant submits that the OIO was in fact passed after the CIRP period of 270 days including the extension. 5. The Applicant submits that the customs duty amounting to ₹ 43,44,45,400/- along with applicable interest of ₹ 53,44,76,342/- and penalty of ₹ 27,28,10,783/- found to be due and recoverable from the Corporate Debtor in respect of 6 nos. of advance licences and thus total claim amount is ₹ 124,17,32,525/-. The Applicant further submits that they have filed claim in Form-B to the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e after the approval of the Resolution Plan by this Tribunal. 10. The Counsel for the Applicant submits that this Tribunal can invoke inherent powers of the Tribunal as provided under Rule 11 of the NCLT Rules, 2016 for allowing this Application. Per contra the Senior Counsel appearing for R3 submits that inherent powers of the Tribunal cannot be exercised in violation of the express provisions of the Code. To buttress his point, he relied on the Judgment of the Hon ble Supreme Court in the case of Arjun Singh ...V/s... Mohindra Kumar and Ors (1964) 5 SCR 946 wherein, it was held as below: It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with the particular topic and the expressly or by necessary implications exhaust the scope of the power of the Court or the Jurisdiction that may be exercised in relation to a matter by inherent power of the Court cannot be invoke in order to cut across the powers conferred by the Court. The provisions contained in the Code need not be expressed but may be implied or the implicit from the very nature of the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondents. This Section only states that once a Resolution Plan, as approved by the Committee of Creditors, takes effect, it shall be binding on the corporate debtor as well as the guarantor. This is for the reason that otherwise, Under Section 133 of the Indian Contract Act, 1872, any change made to the debt owed by the corporate debtor, without the surety's consent, would relieve the guarantor from payment. Section 31(1), in fact, makes it clear that the guarantor cannot escape payment as the Resolution Plan, which has been approved, may well include provisions as to payments to be made by such guarantor. This is perhaps the reason that Annexure VI(e) to Form 6 contained in the Rules and Regulation 36(2) referred to above, require information as to personal guarantees that have been given in relation to the debts of the corporate debtor. Far from supporting the stand of the Respondents, it is clear that in point of fact, Section 31 is one more factor in favour of a personal guarantor having to pay for debts due without any moratorium applying to save him. Following this judgment, it is difficult to accept Shri Rohatgi's argument that that part of the resolution pl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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