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TMI Blog2019 (9) TMI 1434X X X X Extracts X X X X X X X X Extracts X X X X ..... d sale of power. It is promoted by the KSK group, which is primarily engaged in the development, operation and maintenance of power projects. b. The Applicant is engaged inter alia in the business of construction, erection, and commissioning of cooling towers for power plants. c. Sichuan Electric Power Design and Consulting Co. Ltd. ("SEDC") was awarded a turnkey contract for 4x135 MW coal based power project ('said Project") by Respondent No. 1 SEDC has entered into six agreements dated 15.05.2007 (Principal Contracts) with Respondent No. 1 based on which SEDC agreed to undertake supply of material, transportation, materials management, construction works including civil, architectural and structural unloading, unpacking, inspection and quality, erection, commissioning, trails, reliability test, performance guarantee test for 4x135 MW Power Plant comprising Power Island Package and Balance of Plant with auxiliaries for the Phase I and Phase II of the said Project situated at Tehsil Warora, Chandrapur District, Maharashtra. Vide Contract No. s (a). WPCPL- X-SEDC-CG-A2008-01 (for Design & Supply); (b). WPCPL- X-SEDC-CG-A2008-02 (for Civil Construction); (c). WPCPL- X-SEDC-CG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Interim Resolution Professional within due date but continued the proceedings before this Tribunal. In March 2019 the Applicant came to know about the admission of CIRP against Respondent No. 1 and made submission before this Tribunal that it will submit its claim with Respondent No. 2 immediately. This Tribunal vide its order dated 04.04.2019 stated that since CIRP already started against Respondent No. 1, the Applicant cannot continue the proceedings. The Tribunal granted time till 24/04/2019 for the Applicant to file its claim with Respondent No. 2. i. That the Applicant filed its claim in Form- B with Respondent No. 2 on 15.04.2019 along with all the relevant documents. However, the Respondent No. 2 vide his letter dated 04.05.2019 stated that the claim submitted by the Applicant cannot be considered since it was filed beyond 90 days from date of initiation of CIRP. A copy of Form- B along with all documents filed is annexed as Annexure 3. A copy of letter dated 04.05.2019 sent by Respondent No. 2 is annexed as Annexure 4. j. That as per Regulation 12 (2) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsion). iii. It is averred that the provisions of the Code do not permit the Resolution Professional to admit the claim. That Regulation 12 of the CIRP Regulations clearly set out the provisions to submission of proof of claim, which states as under: "12. Submission of Proof of Claim: (1) Subject to sub-regulation (2), a creditor shall submit claim with proof on or before the last date mentioned in the public announcement. (2) A creditor, who fails to submit claim with proof within the time stipulated in the public announcement, may submit the claim with proof to the interim resolution professional or the resolution professional, as the case may be, on or before the ninetieth day of the insolvency commencement date...." iv. That in the light of the aforesaid provisions, the last date for submission of claim in relation to the Corporate Debtor was February 7, 2019 ("Expiry Date"). The Applicant admittedly filed its claim on April 15, 2019, as it missed to take note of the order dated November 9, 2018 wherein CIRP was commenced against Respondent No. 1. v. It is averred that the Resolution Professional is duty bound to comply with the provisions of the Code and the Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the flood gates for plethora of applications for consideration of belatedly filed claims under Code and make it next to impossible for the RP to complete the claim verification process or prepare information memorandum, issue list of creditors and ultimately complete the CIRP Within the time period of 270 days. In relation to the status of the CIRP, the resolution plan filed by the eligible resolution applicant has already been approved by the COC on August 2, 2019 and subsequently the RP has filed an Application for approval of said resolution plan with this Hon'ble Tribunal on August 6, 2019. The CIRP of the Corporate Debtor is on the verge of its completion and such admission will frustrate the intent of the Code and the smooth completion of CIRP of the Corporate Debtor. In case the claim of the Applicant is admitted after the resolution plan is approved, unless the resolution applicant proposes to increase its payment to the operational creditors, the other operational creditors will have to take a further haircut due to the delayed claim of the Applicant. x. It is averred that the Applicant has slept over his legal rights and therefore not entitled to any reliefs under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Applicant. The Performance Guarantee Test was not carried out successfully. Exhibit E attached to the Application is not the PG Test Report and is merely procedure. Mail received from plant head is attached for reference. The books of account show amount payable Rs. 2,18,32,641 including retention money of Rs. 1,85,31,309. 4. We have heard the Counsel for Applicant / Creditor and Counsel for Resolution Professional. The main contention of the Learned Counsel for Applicant that Resolution Professional simply rejected the claim of Applicant on the ground that the same was filed before him beyond the time prescribed under Regulation 12 (2) of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. The Learned Counsel contended that the Creditor earlier filed CP (IB) No. 145/9/HDB/2019 before this Tribunal under Section 9 of IBC, 2016 against 1st Respondent / Corporate Debtor which was pending. While so, the Petition filed by India Opportunities III Pte Limited & Vistra ITCL (India) Limited under Section 7 of the Code was admitted by this Tribunal on 09.11.2018 and CIRP was initiated against the Corporate Debtor / 1st Respondent herein. However, the Applicant / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim of Applicant / Creditor. Learned counsel further stated that the claim made by the Applicant is not sustainable and Applicant has no claim at all against the Corporate Debtor. 6. The question for consideration is whether Resolution Professional has rightly rejected the claim made by the Applicant / Creditor. It is an undisputed fact that Applicant filed separate petition against the Corporate Debtor under Section 9 of IBC. When the said petition was pending, the petition filed by Financial Creditors against the Corporate Debtor was admitted on 09.11.2018 and CIRP commenced from 09.11.2018. The Applicant had withdrawn the petition filed against Corporate Debtor under Section 9 of IBC, 2016 on the ground, CIRP already started against the Corporate Debtor and Applicant made the claim before the IRP/RP. 7. It is true, claim was made beyond 90 days. However, Applicant already moved the Tribunal by filing a petition under Section 9 of IBC, 2016 against the Corporate Debtor for initiating CIRP when this matter was pending. Even after commencement of CIRP against the Corporate Debtor, the case of Applicant is that it was not aware of initiation of CIRP against Respondent No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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