TMI Blog2021 (6) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... r. A liquidator under the law is empowered to admit or reject the claim in whole or in part and a time is also prescribed under Regulation 29 of the IBBI Liquidation Regulations to decide the claims, i.e. within 30 days from the last date of the receipt of the claims. The Regulation 29 (1) of the IBBI Liquidation Regulations says that within thirty days from the last date for receipt of claims, the Liquidator may either admit or reject the claim and Regulation 29(2) gives right to the creditor to file an appeal to the Adjudicating Authority against the decision of the liquidator under section 42 of the IB Code 2016 - the legislature has made a provision for appeal against the order of admission or rejection passed by the liquidator and there is no such provision of appeal in case of collation of claims by the IRP/RP is concerned. The applicant has duly submitted the claim supported with the relevant documents and money receipts issued by the Corporate Debtor but the RP has acted beyond the duty/power vested with him under the law - Application disposed off. - (IB) 470(ND)/2017 and IA/5623/2020 - - - Dated:- 31-5-2021 - Abni Ranjan Kumar Sinha, Member (J) And L.N. Gupta, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason for the difference being the 'cash payment'. That the claim of the Applicant is being shown at serial no. 43 of the List of Creditors issued by the Resolution Professional. viii. That the Applicant had replied to the Resolution Professional giving details of the cash withdrawn from his bank account while submitting bank statements in support of the same and requested the Respondent to modify the claim amount including the sum of ₹ 7,00,000/- paid in cash. ix. That Vide his email dated 01.02.2019, the Applicant has requested the 'Resolution Professional' to re-examine the claim on the basis of the proof of payment being the valid cash payment receipts issued by the Corporate Debtor and annexed by the Applicant in its Claim Form-CA. x. That the Respondent vide its email dated February 4, 2019 replied that This is to inform you that the proof provided by you is not sufficient for the admittance of claim. Therefore, we are provisionally accepting the claim and is subject to verification from the Kindle Books of accounts. xi. It is submitted that the Resolution Professional has wrongly disallowed the substantial claim of the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Regulations that the Resolution Professional has no adjudicatory powers. He has to collate the claims on the basis of the available proofs of claims as may be submitted by the creditors along with the claim submission forms or at the time of substantiation of their claims, which in the present case, the Resolution Professional has miserably failed causing irreparable loss to the Applicant, and is liable to be corrected at this stage itself. 3. The Respondent/Resolution Professional has filed its reply and has asserted the following contentions: i. That the Application (LA No. 496/2018) under section 19(2) of the Code is moved by the Respondent and the same is pending before this Tribunal. The erstwhile management of the Corporate Debtor had never cooperated with the Applicant in providing full documents. This Tribunal vide order dated 08.11.2019 had ordered the Promoter/Directors namely, Mr. Parmjit Gandhi) to provide tally backup to the Applicant from inception of the Company to till the date of the CIRP proceedings or any transactions thereafter, which has not been provided, by the erstwhile management of the Corporate Debtor till the date of the filing of the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been approved by the CoC in its 5th meeting of CoC dated 04.12.2019 by 92.39% voting share. vii. That the Application filed by the Applicant is not maintainable because the Resolution plan submitted by the successful Resolution Applicant, LSWA is approved and Resolution Applicant cannot be burden up with the undecided claim as the same have been considered extinguished. viii. That the Applicant himself has voted in favour of the Resolution Plan. It is deemed that the Applicant knows the law that after the approval of the Resolution Plan his undecided claim will get extinguished. The Respondent had moved an Application (IA No. 1664/2020) for the approval of resolution plan u/s. 30(6). ix. That the present Application is not maintainable in view of the law laid down by the Hon'ble Supreme Court of India and Hon'ble NCLAT in the landmark rulings in the matters of Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta Ors.--, JSW Steel Ltd. Vs. Mahender Kumar Khandelwal Ors. in Company Appeal (AT) (Insolvency) No. 957 of 2019 and Santosh Wasantrao Walokar us. Vijay kumar V. Iyer Resolution Professional Murli Industries Limited in Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner/Financial Creditor has filed its written submissions and submitted the following: i. That the RP has not been able to prepare the books of accounts or obtain necessary documents from the promoters of the Corporate Debtor for a period of more than 2 years from the CIRP commencement date, and that as a retail investor and common man, the Applicant has no means or resources to provide any other additional information to the RP other than the payment receipts issued to him by the Corporate Debtor. ii. That the RP has not followed the process of Law, which lays down the clear guidelines regarding the verification of claim. That Regulation No. 8A of IBBI (CIRP) Regulations, 2016 lays down a list of documents which RP can consider regarding the verification of Claim which inter-alia includes receipt of payment made . iii. That during the course of argument the counsel of RP has stated that the clause no. 12 of Annexure 10 of the Resolution Plan inter alia states as under: Claims received but not admitted by the Resolution Professional will be given an opportunity to substantiate their claims by representing original documents before the RA/CD within 60 day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the successful Resolution Applicant' cannot be asked to face with undecided claims after the 'Resolution Plan' submitted by him and accepted by the 'Committee of Creditors' as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who successfully takes over the business of the 'Corporate Debtor', as held by the Hon'ble Supreme Court. iii. That with regard to the extinguishment of liabilities, the Hon'ble Appellate Tribunal (NCLAT) vide order dated 24.01.2020 in the matter of Santosh Wasantrao Walokar vs. Vijay kumar V. Iyer Resolution Professional Murli Industries Limited in Company Appeal (AT) (Insolvency) No. 871-872 of 2019 answered the question regarding Whether those claims that are not dealt under the resolution plan can be held to be extinguished under the provisions of the I B Code? . The contents of answer/observation of the Hon'ble NCLAT are reproduced below: All claims must be submitted to and decided by the Resolution Professional so that a prospective Resolution Applicant knows exactly who has to be paid in order that it may then take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly of the RP, we notice that the ground for not accepting the claim of payment is that due to absence of the documents of the Corporate Debtor, the genuineness of the money receipts could not be verified. 13. In course of hearing, Ld. Counsel for the applicant has referred to Regulation 8A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (hereinafter referred to as the 'IBBI Corporate Persons Regulations') and submitted that Regulation 8A of the IBBI Corporate Persons Regulations provides the mode to prove the claim. 14. Therefore, at this juncture, we would like to refer to the Regulation 8A, 13 and 14 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and the same are quoted below: 8A. Claims by financial creditors. (1) A person claiming to be a creditor in class shall submit claim with proof to the interim resolution professional in electronic form in Form CA of the Schedule: Provided that such person may submit supplementary documents or clarifications in support of the claim before the constitution of the commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at if the records are not available with an information utility, then it can also be proved by other relevant documents including an agreement to sale, letter of allotment, and receipt of payment made. Here in the case in hand, it is not the case of the applicant that he is not a creditor in a class. Only dispute is in respect of the quantum of payment made by him and in support of that he has filed the photo copy of the money receipts issued by the Corporate debtor. Out of the three receipts submitted by the applicant, two were found to be genuine whereas the third one, on the basis of which the applicant claimed to have paid ₹ 700000/in cash, according to the Resolution Professional, it can be forged . But no final decision is taken by the Resolution Professional that the document is a forged one. Rather he simply had an apprehension about the genuineness of the money receipt. 16. Section 62 and 63 of the Indian Evidence Act, 1872, deals with the admissibility of Primary and Secondary evidences. On perusal of the documents with the application, we notice that all these documents are the photocopies of the documents, therefore, at this juncture, we would like to refer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant has withdrawn ₹ 1.5 lakhs and on 02.03.2015, the applicant has withdrawn ₹ 2 lakhs and so far as the balance amount of ₹ 50,000 is concerned, it is mentioned that, that amount was cash in hand, which shows his bona fide that he has withdrawn ₹ 6.5 lakhs from his bank account. The photo copy of passbook of that account has also been enclosed by the applicant. 19. We further notice that the date of payment of ₹ 7 lakhs as per the money receipts issued by the CD is 03.03.2015 i.e. just one day after the date of the last withdrawal of ₹ 2 lakhs on 02.03.2015. 20. Therefore, the ground that the books of account of the Corporate Debtor are not available with the Resolution Professional, in our considered view, is not a genuine and justified ground to allege that money receipt filed by the applicant is not a genuine one. 21. As per Regulation 13 of the IBBI Corporate Persons Regulations, the Resolution Professional is required to verify the claim within seven (7) days from the last date of receipt of the claim. Neither the Code nor any of the regulations permit the RP to sit over the matter for verification of a claim submitted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claim and Regulation 29(2) gives right to the creditor to file an appeal to the Adjudicating Authority against the decision of the liquidator under section 42 of the LB. Code 2016. But when we consider these provisions along with the power of the IRP/RP, we notice that unlike Section 39 and 40 of the IBC, the IRP/RP is not vested with the power to admit or reject the claim. In view of Section 18(1)(b) of the IBC, 2016, the duty of the IRP/RP is to receive and collate all the claims submitted by the creditors to him pursuant to the public announcement made under Section 13 and 15 of the IBC, 2016. 24. That is the reason, the legislature has made a provision for appeal against the order of admission or rejection passed by the liquidator and there is no such provision of appeal in case of collation of claims by the IRP/RP is concerned. 25. For the reasons discussed above, we are of the considered view that IRP/RP has exceeded with the duty vested under the law, and not finally accepted the claim of the applicant on flimsy ground that the documents are not available and money receipt may be a forged one. 26. We are of the view that mere apprehension regarding the genuineness ..... X X X X Extracts X X X X X X X X Extracts X X X X
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