TMI Blog2021 (9) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... sha Merla] Member (Technical) For the Appellant : Mr. Sandeep Thukral and Mr. Gurjit Singh, Advocates For the Respondent : Mr. Manoj Kumar Garg, Advocate for RP JUDGMENT Justice Anant Bijay Singh ; This appeal has been preferred by the Appellant (Operational Creditor) being aggrieved and dissatisfied by the order dated 09.03.2021 in I.A. No. 143 of 2021 in Company Petition (IB) 2083 (ND) 2019 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench-V whereby and where under the Application filed by the Appellant (herein) - Operational Creditor under section 60 of the Insolvency and Bankruptcy Code, 2016 (for short IBC) and read with Rule 11 of the NCLT Rules, 2016 and has prayed following reliefs is hereunder: a) Allow the instant application of the Applicant; b) Issue necessary instructions to the RP to consider the claim without having any regard to the delay; c) Pass an order to admit the claim of the Applicant before RP; and d) In the meanwhile, direct the RP not to proceed with the adoption of Resolution Plan (not been approved till today and the approval of which would render the present application inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Insolvency Resolution Process against the Corporate Debtor during a candid discussion within the business circles in December, 2020 only and was absolutely shocked to know about the fact of CIRP having been initiated against the Corporate Debtor . vi) The Appellant immediately consulted a lawyer for understanding about the CIRP in general and then decided to submit its claim to the RP for the due and legit outstanding amount of ₹ 43,45,844/0 owed to it by the Corporate Debtor ion the prescribed format Form-B along with Affidavit and proof of claim i.e. invoices, E-way bills, certified copy of statement of Account of the Corporate Debtor in tis books of accounts, GST returns, etc. vide speed post dated 22.01.2020 and also vide email on 24.12.2020. vii) The Resolution Professional vide email dated 31.12.2020 replied to the application of the Appellant simply with a remark Your claim documents is not received with in time as per IBC, 2016 . It was further mentioned in the reply that the Form G for EOI has issued and the Resolution Plan is under process. viii) The Appellant followed up with a reply email on 03.01.2021 thereby requesting the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Appellant further relied on order dated 13.06.2019 passed by Ld. NCLT New Delhi, Principal Bench in (IB)-1083(PB)/2018 (Edelweiss Asset Reconstruction Co. Ltd. V/s Adel Landmarks Ltd.) whereby the Ld. Adjudicating Authority had held the provisions of Section 12(2) of IBC is directory and not mandatory. 7. It is further submitted that the Ld. Adjudicating Authority has failed to consider these judgments and also fact on which the claim of the Applicant0020was filed before the Resolution Professional on 22.01.2020 and rejected the same vide email dated 31.12.2020 with a remark the claim as per the IBC, 2016 is time barred. In much as the Ld. Adjudicating Authority has failed to apply judicial mind and passed the impugned order, so it is fit to be set aside and Appeal be allowed. Submissions on behalf of the Respondent. 8. Learned Counsel for the Respondent during the course of argument and his Reply Affidavit submitted that as per the own version of the Appellant that on 12.02.2020 was the last day for submission of claim. 9. It is further submitted that the paragraph 7 (E) of the Appeal Paper Book the Appellant himself has admitted that the Appellant missed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant also know that this is a time bound process and time line have to be followed and has despite have been knowledge of the CIRP, the Appellant failed to submit his claim within stipulated time. Therefore, the Ld. Adjudicating Authority has rightly been rejected the Application i.e. I.A. No. 143 of 2021. 17. It is further submitted that the Corporate Debtor received a proposed Resolution Plan (Revised) on 04.01.2021 by the Resolution Applicant namely, Rama Gupta and the same was approved by the majority of the Committee of Creditors holding 80.43% voting share on 13.01.2021 in the 6th COC meeting (at pages 130 to 150, relevant as 136 of the convenience compilation filed by Respondent No. 2 in Company Appeal (AT) (Insolvency) No. 444 of 2021). 18. It is further submitted that the taking all these facts have been mentioned in the analogous Appeal i.e. Company Appeal (AT) (Insolvency) No. 444 of 2021 (Sunil Kumar Agrawal, Resolution Professional, KPG International Pvt. Ltd. V/s Committee of Creditors, KPG International Pvt. Ltd. Anr.) which was heard along with this Appeal. 19. It is further submitted that the Appellant taking recourse of the different orders of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al sent an email dated 05.01.2021 stating that the claim cannot be accepted as it was submitted by delay to RP and resolution plan was submitted by one resolution applicant to RP which is pending for consideration by the CoC. In view of the admitted facts and submissions advanced on behalf of the Respondent and further also averments made by the Learned Counsel for the Appellant in paragraphs 7 (E), (G), (H), (I), (J) (K) of the memo of Appeal which categorically established that the Appellant was having full knowledge of the CIRP and deliberately not submitted his claim within time and after expiry of 90 days filed the claim which was rightly rejected by the Resolution Professional. ORDER 22. In view of the above discussion, there is no illegality committed by the Ld. Adjudicating Authority and rightly rejected the I.A. No. 143 of 2021 filed by the applicant (Appellant herein) in Company Petition (IB) 2083 (ND) 2019. There is not merit in the Appeal. Accordingly, the order dated 09.03.2021 in I.A. No. 143 of 2021 in Company Petition (IB) 2083 (ND) 2019 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench-V, is hereby affirmed. The App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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