TMI Blog2021 (8) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... to admit claim of Operational Creditor with regard to interest amount also - HELD THAT:- A bare perusal of the provisions of the MSME Act clearly shows that in the event of any dispute, the same requires to be referred to the MSME Facilitation Council and the lis is to be decided by the said Council. Therefore, unless the applicant obtains an appropriate order from the MSME Facilitation Council for payment of any amount towards interest the same cannot be admissible by the RP - Application dismissed. IA No. 667/2020 Seeking a direction to the RP to admit claim of Operational Creditor - HELD THAT:- In so far as the stand taken by the RP with regard to the submission of the claim belatedly i.e. submission of the claim after 90 days of CIRP, the same is unsustainable. In view of the settled principles of law, fixation of time limit for submission of claims is not mandatory and it is only directory, the RP cannot reject the claim of the applicant, unless the same is abnormally delayed and made after the approval of the resolution plan. But in the instant case the submission of claim was prior to the approval of the plan by the COC and hence, the action of the RP in rejecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 250/Chd/Pb/2018 - - - Dated:- 27-7-2021 - Raghu Nayyar, Member (T) And Ajay Kumar Vatsavayi, Member (J) For the Appellant : Jatin Singal, Practising Company Secretary, Atul Sharma and Aalok Jagga, Advocates For the Respondents : Munisha Gandhi, Senior Advocate, Harsh Garg, Pulkit Goyal, Yash Pal Gupta, Salina Chalana, Advocates and G.S. Sarin, Practising Company Secretary ORDER Ajay Kumar Vatsavayi, Member (J) IA No. 249/2020 1. Nilkanth Cotton Fibers represented through its Partner Shri Kunal Pravinbhai Sakarwadia, an operational creditor, filed the instant IA against the Resolution Professional (RP) of the corporate debtor M/s. KSM Spinning Mills Limited under Section 60(5) of the IBC Code, 2016 seeking a direction to admit its claim. 2. It is the case of the applicant that Corporate Insolvency Resolution Process (CIRP) has been initiated against the respondent-corporate debtor on 17.12.2019 when CP (IB) No. 250/Chd/Pb/2018 filed by the Central Bank of India, a financial creditor, was admitted by this Adjudicating Authority and an IRP was appointed thereon. The applicant, an operational creditor of the respondent-corporate debtor could not file i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the claim of the applicant, in accordance with the Code and Regulations made thereunder. 7. Accordingly, IA No. 249/2020 is disposed of. IA No. 659/2020 8. Anjani Cotton Industries represented by its Partner Shri Rajdeep Nagjibhai Saradava, an operational creditor of the respondent-corporate debtor filed the instant IA under Section 60(5) of the IBC 2016 seeking a direction to the RP to admit its claim with regard to interest amount also. 9. It is submitted that CIRP has been initiated against the corporate debtor on 17.12.2019 when CP (IB) No. 250/Chd/Pb/2018 filed by Central Bank of India, a financial creditor, was admitted and an Interim Resolution Professional (IRP) was appointed thereon. The applicant, an operational creditor of the corporate debtor, had no knowledge about the same could not submit its claim before the last date of submission of claims which was 31.12.2019 however, the applicant submitted its claim dated 16.06.2020 on 19.06.2020 in the prescribed Form B (Annexure 1). The respondent vide Annexure 2 (Colly) e-mail dated 25.06.2020 sought certain clarifications and documents for verification of the claim from the applicant. Accordingly, the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. Recovery of amount due.--For any goods supplied or services rendered by the supplier, the buyer shall be liable to pay the amount with interest thereon as provided under section 16. 18. Reference to Micro and Small Enterprises Facilitation Council.-- (1) Notwithstanding anything contained in any other law for the time being in force, any party to a dispute may, with regard to any amount due under section 17, make a reference to the Micro and Small Enterprises Facilitation Council. (2) On receipt of a reference under sub-section (1), the Council shall either itself conduct conciliation in the matter or seek the assistance of any institution or centre providing alternate dispute resolution services by making a reference to such an institution or centre, for conducting conciliation and the provisions of sections 65 to 81 of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to such a dispute as if the conciliation was initiated under Part III of that Act. (3) Where the conciliation initiated under sub-section (2) is not successful and stands terminated without any settlement between the parties, the Council shall either itself take up the dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Annexure 2 e-mail dated 22.08.2020 by stating that the claim was outstanding for more than three years and is a time barred debt and barred by limitation and that the claim has been submitted after 90 days of the initiation of the CIRP. 17. Heard Mr. Jatin Singal, the learned authorized representative for the applicant and Mr. Harsh Garg, the learned counsel for the respondent-Resolution Professional and perused the pleadings on record. 18. In so far as the stand taken by the RP with regard to the submission of the claim belatedly i.e. submission of the claim after 90 days of CIRP, the same is unsustainable. In view of the settled principles of law, fixation of time limit for submission of claims is not mandatory and it is only directory, the RP cannot reject the claim of the applicant, unless the same is abnormally delayed and made after the approval of the resolution plan. But in the instant case the submission of claim was prior to the approval of the plan by the COC and hence, the action of the RP in rejecting the claim on the ground of belated submission i.e. beyond 90 days of the initiation of CIRP is unsustainable. 19. In so far as the other reason given b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kruptcy Board of India (Insolvency Resolution Process For Corporate Persons) Regulations, 2016, regulation 7, 7(2)(h), 12 of the Code of Conduct For Insolvency Professionals and others. It is therefore prayed that the present application be allowed and the present Resolution Professional, Nipan Bansal be ordered to be removed and all expenses incurred after the 11.2.2020 be called back and he be directed to compensate the CD accordingly. It is further prayed that the court be pleased to take such further action against the RP, Nipan Bansal on account of the reasons and facts mentioned above. 25. IA No. 462/2020 has been filed by Shri Sarish Mittal, a Suspended Director of the corporate debtor M/s. KSM Spinning Mills Limited under Section 60(5) of the IBC 2016 and Regulation 25 and 26 of the IBBI (IRP for CP) Regulations, 2016 against the RP seeking the following reliefs:- It is prayed that the court may be pleased to; a. That it be declared that Nipan Bansal was neither appointed as a RP nor can be permitted to continue as such. b. restrain the said Nipan Bansal from continuing any further action as an RP c. pass such other others as the court may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not eligible to appear as the counsel for Shri Nipan Bansal, for the reasons mentioned in the applications. The applicant levelled serious allegations against both of them. The learned counsel appearing for the applicant, when the matters are taken up for hearing while not pressing the relief against Shri Harsh Garg, the learned counsel representing Shri Nipan Bansal, the RP, submits that the applicant has made complaint against Shri Nipan Bansal to the IBBI, as per the applicable rules and regulations and the said complaint is pending consideration before the IBBI. 31. It is to be seen that now the process of CIRP against the corporate debtor has reached its finality since a resolution plan was already approved by the COC and that an application under Section 30(6) read with Section 31 of IBC 2016 had already been filed and is pending before this Adjudicating Authority. The role of the RP, almost came to an end and that no further action is required to be taken by the RP, unless in the event of rejection of the resolution plan by this Adjudicating Authority. It is also to be seen that when allegations of mala fides or corruption or professional misconduct or any other sort are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for applicant-Suspended Board of Directors, Mr. Harsh Garg, the learned counsel for respondent-Resolution Professional, Ms. Munisha Gandhi, the learned senior counsel for the Resolution Applicant, Ms. Reena Chaudhary, the learned counsel for Dissenting Financial Creditors and Mr. Yash Pal Gupta, the learned counsel for COC and perused the pleadings on record. 36. The applicant, in short sought for a direction to the COC/Lenders of the corporate debtor to reconsider its OTS proposal of ₹ 45 Crores, on the main ground that the same was more than the amount of the resolution plan which was approved by the COC. 37. In our considered view the instant IA is not maintainable before this Adjudicating Authority, as no provision under the IBC 2016 was shown to us which dealt with the One Time Settlement proposals of any corporate debtor with its lenders. Further, it is for the lenders of any corporate debtor to consider or not to consider an One Time Settlement proposal of any borrower/corporate debtor. The merits or demerits of an One Time Settlement proposal vis-a-vis. the merits and demerits of a resolution plan approved by the COC cannot be compared, as the scope and a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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