TMI Blog2021 (10) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... P by filing irrelevant IAs. If further IAs are filed without any substance to delay the CIRP, the same may be dismissed with penalty/cost - RP is hereby directed to complete the CIRP in time and find out a Viable Resolution Plan for the MSME CD without further loss of time. Application dismissed. - IA (IBC) No. 44 of 2021 IN C.P. (IB) No. 07/GB/2021 - - - Dated:- 30-9-2021 - Hon ble Shri H. V. Subba Rao, Member (J) And Hon ble Shri Prasanta Kumar Mohanty, Member (T) NONE - PETITIONER PRESENT IN VIDEO MR. AMIT PAREEK RP IN PERSON CONFERENCE ORDER [ Per se : Shri Prasanta Kumar Mohanty, Member (T) ] 1. The present applicant is filed by the Applicant under Sec. 60(5) of the Insolvency and Bankruptcy Code 2016, with rule 11 of the National Company Law Tribunal Rules, 2016 seeking directions for the Respondent to accept the entire claim filed by the Applicant. The Applicant has preferred the present application being aggrieved by the partial rejection of its claim dated 11.05.2021 as an Operational Creditor by the Resolution Professional (hereinafter referred to as RP). 2. The Applicant submits that this Hon ble Tribunal vide order dated 07.04.2021 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Only). Hence, the remuneration of the Applicant has kept on changing from time to time in accordance with the board meetings. 6. Therefore, it is submitted that the claim of the Applicant can be established from the aforementioned Minutes of Board Meetings ( BM ) dated 24.01.2011 (10th BM), 25.10.2011 (16th BM), 24.06.2015 (41st BM), 02.04.2018 (69th BM), 10/04/2019 (76th BM) and 05.04.2020 (82nd BM). Copy of the Minutes of the Board Meeting dated 24.01.2011 (10th BM), 25.10.2011 (16th BM), 24.06.2015 (41st BM), 02.04.2018 (69th BM), 10/04/2019 (76th BM) and 05.04.2020 (82nd BM) is annexed herewith and marked as ANNEXURE C (Page No. 36 to 58). 7. That all the above said documents that inexplicably prove the existence of operational debt were submitted to RP along with the claim. 8. However, to further the dismay and disconcert of the Applicant, the RP vide email dated 10.06.2021 intimated the Applicant that its claim as an Operational Creditor is only accepted to the extent of ₹ 7,20,000.00 (Rupees Seven Lakhs Twenty Thousand Only) against total of ₹ 63,22,971.00 (Rupees Sixty-Three Lakhs Twenty-Two Thousand Nine Hundred Seventy-One Only). The rejection is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and protect the assets of the corporate debtor, including the continued business operations of the Corporate Debtor. 2. For the purposes of sub-section (1), the Resolution Professional shall undertake take the following actions, namely: a. take immediate custody and control of all the assets of the Corporate Debtor, including the business records of the Corporate Debtor; b. represent and act on behalf of the Corporate Debtor with third parties, exercise rights for the benefit of the Corporate Debtor in judicial, quasi-judicial or arbitration proceedings; c. raise interim finances subject to the approval of the Committee of Creditors under section 28; d. appoint accountants, legal or other professionals in the manner as specified by Board; e. maintain updated list of claims 13. Therefore, it is submitted that the provisions of Section 18 and 25 of the Code cast a duty over the RP to collate all claims submitted by the Creditors in pursuant to the public announcement. 14. It is submitted, that Regulation 13 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 lays down the manner in which the verification o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant/Operational Creditor if the claim is not admitted. The present application warrants urgent adjudication since the CIR process is at an advance stage. 19. In view of the facts and circumstances stated herein above the Applicant most respectfully prays that this Hon ble Tribunal may be pleased to: a. Direct the Respondent/RP Mr. Amit Pareek to admit the entire claim filed by the Operational Creditor/ Applicant of ₹ 63,22,971.00 (Rupees Sixty-Three Lakhs Twenty-Two Thousand Nine Hundred Seventy-One Only). b. To pass any such other order as this Hon ble Tribunal as may deem fit and proper under the facts and circumstances of the case, in the interest of justice, equity and fair trial. 20. The Bench took up the matter on 03.09.2021 wherein, it passed the following order: ORDER Date of Order: 03.09.2021 The matter is taken up for hearing through Video Conferencing. Learned Counsels Mr. A. K. Srivastava and Mr. Nakul Mohata appeared for the Petitioner. Mr. Amit Pareek, RP is present in person. The learned Counsel for the Petitioner has submitted that the Respondent / RP Mr. Amit Pareek be directed to admit the entire claim filed by the Operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tta is hereby ratified that an amount not exceeding ₹ 7.20,000.00 (Rupees Seven Lakhs and Twenty Thousand Only) be paid to the Executive Directors as remuneration for the year ending 31st March - Pg. 42 5. 76th BM dated 10.04.2019 CONSIDERATION FOR REMUNERATION OF ED S - RESOLVED THAT remuneration commensurate to and in lieu of the efforts and time dedicated to the long term, sustainable, viable, business model envisaged and founded by Mr. Prokash Data is hereby ratified that an amount not exceeding ₹ 7,50,000.00 (Rupees Seven Lakhs and Fifty Thousand Only) be paid to the Executive Directors as remuneration for the year ending 31st March 2020 - Pg. 48 6. 82 nd BM dated 05.04.2020 CONSIDERATION FOR REMUNERATION OF ED S RESOLVED THAT remuneration commensurate to and In lieu of the efforts and time dedicated to the long term, sustainable, viable, business model envisaged and founded by Mr. Prokash Datta is hereby ratified that an amount not exceeding ₹ 7,80,000.00 (Rupees Seven Lakhs and Eighty Thousand Only) be paid to the Executive Directors as remuneration for the year ending - Pg. 52 Pg. 31- 53 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y supportive shreds of evidence that could substantiate his claim. It is pertinent to mention here that the claim amount is totally in contradiction to the audited financial statement of CD under CIRP. Copy of E-mail dated 04.05.2021 is attached herewith and marked as ANNEXURE B. iv. That after submitting the claim FORM, the claimant repeatedly kept changing the claim FORM on different dates via e-mail dated 04.05.2021 at 9:49 PM, 11.05.2021 at 11:52 AM, and 11.05.2021 P.M. 7:06 PM. Copy of E-mails attached herewith and marked as ANNEXUREC. v. That through E-mail dated 13.05.2021, the R.P. advised him to send final claim forms along with a notarized affidavit and relevant documents in hard and soft copy. Finally, on 04.06.2021, R.P. received the hard copy of the claim in FORMD via Registered Post. Copy of e-mail dated 13.05.2021 is attached herewith and marked as ANNEXURE-D. vi. After receipt of the Claim Form, R.P. entirely verified the documents based on records available to him and turned up with the following observations and sent an email dated 10.06.2021: After verification from the records of CD a claim of ₹ 7,20,000.00 (Rupee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 14.09.2021. In such a situation, if the creditors' claims are continued to be accepted specially the false claim of suspended BOD, it would cause many difficulties in preparing the Resolution Plan as there would be no end to such claims. Also, the granted extended period of Ninety Days has been expired. Therefore, if the claims are continued to be accepted at this stage, the CIRP will not reach its logical conclusion, which is undoubtedly not the expressed objective of the IBC. xii. Furthermore, it is submitted that the claim that is admitted by Resolution Professional amounting to ₹ 7,20,000.00 (Rupees Seven Lakhs Twenty Thousand Only) due for the FY 2018-19 as appearing in the latest Audited Balance Sheet for the FY 2018-19 as well as FY 2020-21 vide Page No. 50 70 respectively under the head salary payable to Director relates to the FY 2018-19. Copy of Audited Balance Sheet is attached herewith and marked as ANNEXURE- G. xiii. That the salary payable to the Director is for the FY 2018-19, which is exceeding twelve months preceding the commencement of CIRP and as per the waterfall arrangement under Section 53(1) (c) of IBC 2016, the claims/ unpaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not yet commenced its primary business activity hence such unaccounted salary of suspended BOD cannot be acceptable, the CIRP is at the advance stage and the Resolution Plan are under consideration, the last date of submission of Resolution plans is 14.09.2021, the CD is MSME and suspended Managing Director has all the opportunity to participate in submission of Resolution Plan, the audited financial statement does not reflect the claimed amount. The claimant during CIRP has filed few false Interlocutory Applications, all of those were dismissed/disposed of. The intent of applicant is frivolous disturbing the CIRP by filing false applications without having any legality. xvii. In view of the detailed reply and submissions contained hereinabove, it is respectfully submitted that the Applicant is not entitled to any of the reliefs prayed in the Application. Therefore, the application filed by the petitioner is devoid of any merit and is liable to be dismissed with cost. ORDER 23. Heard both the sides at length. Perused the documents, affidavits submitted and submissions made by both the sides. We observe that: i. One Application under section 241-242 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
