TMI Blog2021 (8) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... he RP refused to accept the claim, the applicant knocked on the doors of this Adjudicating Authority seeking a determination of the claim of the applicant even before the approval of the Resolution Plan. While both matters i.e., this application as well as the application for approval of the resolution plan were heard and reserved for orders together, the erstwhile Bench approved the Resolution Plan alone while posting this application for hearing once again on 24.03.2020. No reason has been adduced in that order as to why this particular application was also not decided. The RP is hereby directed to draw up final accounts between the corporate debtor and the Joint Venture and include any claim payable to the applicant, in the list of operational creditors and also make payments under the resolution plan - Application disposed off. - IA No. 1840/KB/2019 in CP (IB) No. 148/KB/2018 - - - Dated:- 12-8-2021 - Rajasekhar V.K., Member (J) And Harish Chander Suri, Member (T) For Appearing Parties : Ratnanko Banerji, Sr. Advocate, Kshitiz Chawchcharia, RP, Rishav Banerjee, Ritoban Sarkar, Madhuja Barman, Deep Roy, Swatarup Banerjee, Avishek Guha, S.K. Sariful Haque and Moti Sag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith laying of pipeline and additional works (both civil and electromechanical) for Behala Flying Club which was added by KEIIP at a later stage. Clause (1)(a) states that Tantia immediately foregoes its right to receive any payment, if any, that Tantia is yet to receive from the JV pursuant to invoices raised by Tantia upon the JV and invoices yet to be raised for work contract done. The payments will however be made to the vendors as agreed elsewhere in the contract. Clause 1(c)(a) states Tantia acknowledges that it has appropriated a sum of ₹ 3693.16 lakh towards the work done so far by Tantia... Clause 1(c)(b) states that In the event of Tantia's inability to refund the sum aforesaid amount as set out in the preceding clause of this Agreement, then Tantia waives its right to receive any payment that Tantia is to receive from the JV in lieu of the work done by Tantia for the JV and for which Tantia's invoice(s) are pending payment from the JV. Clause 1.6 at page 24 states that Since MPPL is taking over the project work on behalf of Tantia, due to present financial difficulties of Tantia and their inability to compete t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant replied to the RP that the JVA and other agreements along with the relevant extract of the 54th Annual Report of the corporate debtor were already submitted with Form B. The applicant further sent the entire 54th Annual Report with the said reply email. 2.10. On 26.11.2019, the RP replied to the email raising queries in respect of the claim and sought the basis of proof of claim filed towards the corporate debtor to substantiate the claim. The applicant through email dated 27.11.2019, reiterated that all the relevant documents were submitted along with Form B and that the financial statement of the corporate debtor was provided vide email dated 15.10.2019. On 29.11.2019, the RP replied to the applicant that the claim amount of ₹ 907 lakh was inappropriate in terms and understanding arrived at between the applicant and corporate debtor vide minutes of meeting dated 12.11.2018 and under the terms of the additional agreement. The applicant then replied to this email on 04.12.2019 and stated that the claim amount is based on the Annual Report of the corporate debtor for the year ending on 31.03.2019. The applicant also provided the details of the works that ought to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im. 3.2. In response to this, the applicant by email dated 15.10.2019, reiterated that the basis for its claim is the acknowledgement of liability in the Annual Report of the corporate debtor, however, the applicant did not provide any further documentation to substantiate the same. 3.3. On 26.11.2019, the RP replied to the applicant that if there were any liability of the corporate debtor towards the applicant in light of the provisions of the JV Revised Agreement, the same would be adjusted in accordance with the provisions of clause 1(c) of the JV Revised Agreement which is as follows:- (a) Tantia acknowledges that it has appropriated a sum of INR 3693.16 lakhs (Rupees thirty six crores ninety three lakhs sixteen thousand only), towards work done by Tantia. Of the 3693.16 lakhs (Rupees thirty six crores ninety three lakhs sixteen thousand only), Tantia acknowledges that it was paid an extra sum of rupees 869.65 lakhs (Rupees eight crores sixty nine lakhs sixty five thousand only) to facilitate project continuity. This extra sum will be reduced to the extent of TDS certificates to be issued by Tantia to MPPL and to the extent of work done by Tantia but not certified by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra) of Bengal Silk Mills Co. v. Ismail AIR 1962 Cal 115; MANU/WB/0033/1962 and Kashinath v. New Akot Cotton Ginning and Pressing Co. Ltd. ILR 1950 Nag 562; AIR 1951 Nag 255 to contend that the balance sheets do not amount to acknowledgements of liability because they are prepared under compulsion of law. 4. Analysis and findings:- 4.1. Succinctly put, the case of the parties is that the applicant which is a Joint Venture of the corporate debtor and WILO Mather and Platt Pumps Private Limited had entered into a contract. The Joint Venture Agreement entered into between the parties on 03.02.2014 was revised vide an agreement dated 29.11.2018. The initial ratio of participation in the Joint Venture was 20% for the applicant and 80% for the corporate debtor which was revised to 60% to the applicant and 40% to the corporate debtor in terms of the agreement dated 29.11.2018. The civil work was accepted to be completed by the corporate debtor while the other works at the site were to be completed by the applicant. 4.2. Due to default, the bank guarantee given by the corporate debtor was forfeited by KEIIP which also entrusted the completion of the work under the terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to law. It would be a travesty of justice to apply the ratio of that judgment to the facts of the present case and leave the present applicant battered, bruised and none the wiser as to what went wrong in his pursuit of justice. 4.8. The Resolution Professional's obduracy in denying the applicant's claim while at the same time admitting the liability in the capacity of Resolution Professional in the books of accounts, is completely inexplicable. If accounts were subject to verification and reconciliation, then this contingency should have been provided for, especially when the RP was a chartered accountant himself. 4.9. In any case, we have held, vide our order dated 17.05.2021, that the application is maintainable even though the resolution plan has been approved. The applicant has approached this Adjudicating Authority on 31.12.2019 itself, even before the approval of the resolution plan application was filed before this Adjudicating Authority. 4.10. In these circumstances, the RP is hereby directed to draw up final accounts between the corporate debtor and the Joint Venture and include any claim payable to the applicant, in the list of operational creditors and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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