TMI Blog2019 (11) TMI 1475X X X X Extracts X X X X X X X X Extracts X X X X ..... State Bank Account by Commercial Tax Department - HELD THAT:- The admitted factual position is that the 'Moratorium' had commenced by admitting the Petition filed by RICOH India Limited U/s 10 of the (I B) Code vide Order dated 14.05.2018, therefore, Section 14 of I B Code shall apply which prohibits recovery or alienation or disposing of any of the property of the Corporate debtor. Due to the declaration of Moratorium the action of recovery from the State Bank account of the Corporate Debtor is barred by Law. As a consequence, the concerned authorities are hereby directed to reverse the recovery entries by refunding back the amount recovered. The amount so refunded shall be kept in a No Lien Account or an Escrow Account of the Corporate Debtor to be controlled and operated by Resolution Professional under the instructions of NCLT Bench - Application allowed. Directions to the Resolution Professional to accept the claim of the Applicant - rejection because of belated submission - HELD THAT:- This Bench is of the view that considering few judgments of NCLAT a lodgment of claim can be entertained by the Resolution Professional if it is within a reasonable time and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Zal Andharyujina, Senior Counsel, Nazish Alam, Akansha Agarwal, Aninash Pradhan i/b Wadia Gandhi Company, Mustafa Doctor, Senior Advocates, Rohit Gupta, Vishal S. Shriyan, Neha M. Shah i/b Maniar Shrivastava Associates and Shirin Shaikh, Advocate For the Respondents : Mustafa Kachwala, Senior Counsel, Pooja Mahajan and Mahima Singh i/b Kachwala Nisar Co. ORDER M. K. Shrawat , Member ( J ) (A) MA-01 of 2019 1. This Miscellaneous Application is submitted by Connect Residuary Private Limited (in short CRPL) dated 01.01.2019 for the claim of an 'Operational Debt' and the main prayers are as under :- (b) Set aside the action of the Resolution Professional in not admitting the claim of the Applicant vide the updated List of the Petitioner's Creditors dated December 10, 2018; (c) Declare that the Applicant is an Operational Creditor of the Petitioner to the extent of ₹ 25, 52,08,897/- as set out in Form B dated June 11, 2018 filed by the Applicant before the Resolution Professional. 2. CLAIM OF APPLICANT:- Briefly stated facts are that a 'Master Rental Agreement' dated 06.12.2013 was executed between the parties i.e. CRPL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Professional the impugned Miscellaneous Application was thus not maintainable. 5.1 In the Reply it is informed that the Corporate Debtor/RICOH (incorporated on 22.10.1993) was listed as Public Company in Bombay Stock Exchange. The Corporate Debtor is stated to be a subsidiary of RICOH Company Limited having head quarter in Japan. In India the business operations were for the last 37 years in the field of trading of computer hardware and providing IT Services. There was a Master Rental Agreement (MRA) dated 06.02.2013 for leasing of certain equipment. As many as six Rental Schedules were in operation. 5.2 On receiving the claim of CRPL the Resolution Professional has started examination of records, however, impugned MRA was untraceable. The claim was that the Corporate Debtor/RICOH had purchased 2700 and 1150 UID kits from Fourth Dimension Solution Limited (FDSL) for the purpose of providing AADHAR CARD facility under the instructions of the Government. Those UID kits were purchased for a sum of ₹ 36.37 Crores. The allegation of the Resolution Professional is that there was no document for record available to establish that the kits were delivered or installed for use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionate in nature and nothing was payable to the Applicant/CRPL by the Corporate Debtor. As per Resolution Professional it was his duty to report under section 25(2) read with section 66 of the I B Code about such transaction. 6. FINDINGS :- Learned Representatives of both the sides have been heard. Certain case laws have been referred, revolving around the issue that whether the transaction in question could be held as extortionate transaction or fraudulent transaction. Reliance has also been placed on certain documents as annexed with the Rejoinder by the Applicant. However, keeping brevity in mind and the circumstances of the case there is no requirement to discuss all those legal points at length. In the opinion of this Bench the Resolution Professional was duty bound to ascertain the correct facts, that too, after due diligence and investigation, hence in his wisdom rightly appointed A M. As per Section 25 of Insolvency Code duties of Resolution Professional has been assigned, hence in compliance an investigation was carried out by appointing an Agency so as to ascertain whether the transaction as claimed by the Applicant CRPL was genuine and correct. On investigation it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as placed reliance on two decisions of Hon'ble NCLAT on this issue :- (a) State Bank of India V/s Mr. V. Ramakrishnan And M/s. Veesons Energy Systems Pvt. Ltd. in Company Appeal (AT) (Insolvency) No. 213 of 2017 Order dated 28.02.2018. (b) ICICI Bank Limited V/s Interim Resolution Professional for Ruchi Soya Industries Limited in Company Appeal (AT) Insolvency No. 390 of 2018 Order dated 24.07.2018. 11. The admitted factual position is that the 'Moratorium' had commenced by admitting the Petition filed by RICOH India Limited U/s 10 of the (I B) Code vide Order dated 14.05.2018, therefore, Section 14 of I B Code shall apply which prohibits recovery or alienation or disposing of any of the property of the Corporate debtor. Due to the declaration of Moratorium the action of recovery from the State Bank account of the Corporate Debtor is barred by Law. As a consequence, the concerned authorities are hereby directed to reverse the recovery entries by refunding back the amount recovered. The amount so refunded shall be kept in a No Lien Account or an Escrow Account of the Corporate Debtor to be controlled and operated by Resolution Professional under the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was placed for consideration before Committee of Creditors. The prayer of the Applicant is that during the pendency of the approval of the Resolution Plan a claim of debt has to be entertained and admitted by the Resolution Professional. 18. From the side of Resolution Professional a Reply is on record wherein it is informed that the Tax Department had already attached and recovered a sum of ₹ 16,54,368/- and further a sum of ₹ 26,83,275/- and for refund an Application MA-1535/2018 has already been moved on 13.12.2018. Therefore, this Application deserves to be rejected. 19. FINDINGS:- Having heard the submissions of both the sides in the light of the provisions of the Act, at the outset it is necessary to place on record that on promulgation of Insolvency and Bankruptcy Code a provision vide Section 238 is incorporated which has overriding effect on other laws, (reproduced supra). 19.1 However, this Bench is of the view that considering few judgments of NCLAT a lodgment of claim can be entertained by the Resolution Professional if it is within a reasonable time and going to effect substantially a Resolution Plan already under consideration before Committee of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or sanction of Resolution Plan; (e) that this Hon'ble Tribunal be pleased to direct the Resolution Professional to give inspection and copies of minutes of the meeting of the CoC till date, all the correspondence/communication exchanged between the Resolution Professional and all the parties in the Resolution Process; 23. The Applicant has informed in the Application that the Applicant is part of Kotak Group, thus wholly owned subsidiary of Kotak Mahindra Bank Ltd., claimed to be having 30 years of experience in Financial Services Sector. It is further claimed that the Kotak Group had successfully undertaken and turned around several Stressed Assets Companies. The Applicant was declared as one of the participants in Resolution Process by submitting a Resolution Plan. The Applicant has alleged that certain irregularities have happened in Insolvency Process. 23.1 An Advertisement was made on 09.07.2018 under Regulation 36A(5) calling Expression of Interest. Pursuant thereto, Phoenix Asset Reconstruction Company, an affiliate of the Applicant, submitted EOI on 07.08.2018. On receiving EOI the Resolution Professional had issued Process Memorandum on 17th and 27th Augu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of Evaluation Matrix. According to the Applicant, he was the H-1 bidder. On account of all these reasons the Applicant has vehemently pleaded that its Resolution Plan had illegally rejected. 24. A Reply has been filed by the Resolution Professional wherein it was stated that the procedure was correctly followed as prescribed in the Act/Regulations. Reliance has also been placed on the decision of the Hon'ble Supreme Court in the case of K. Sashidhar V/s Indian Overseas Bank Ors., 2019 SCC Online Supreme Court 257. The Applicant was one of the four Resolution Applicants who has submitted their respective Resolution Plans. After various rounds of negotiations and discussions the Committee of Creditors decided to disregard rest of the plans and confined to the plan submitted by the said consortium for discussion on 15th Committee of Creditors Meeting held on 13.02.2019. The Plan submitted by the Successful Resolution Applicant was approved by 84.36%. The Learned Resolution Professional in this Application has made a reference MA-691/2019 submitted for approval of the Successful Resolution Applicant as prescribed under Section 30(6), Section 31(1) of the Code alongwith Regu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
