TMI Blog2022 (3) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent on 26.10.2020, more than 10.5 months beyond the expiry of time limit on 17.12.2019 for submission of proofs of claims. It is also evident that subsequent to the invitation of Expression of Interest on 18.08.2020, the prospective Resolution Applicants were short-listed in the 9th CoC Meeting on 22.10.2020 and even by this time the Respondent had not submitted his claim to the RP. The proposed resolution Plans were considered in the 9th CoC Meeting whereas the claim in question was sent to the RP on 26.10.2020. CoC had short-listed and considered the proposed resolution plans and till then no claim had been received from the Respondent. Thereafter, the Resolution Plans were considered and approved in the 10th CoC Meeting on 07.11.2020 and the approved Resolution Plan was submitted for approval of the Adjudicating Authority vide I.A. No. 5283 of 2020 on 25.11.2020. Thus, it is clear that when the claim was first submitted by the Respondent to the RP, the CoC had already opened the proposed Resolution Plans received on 17.10.2020 and had begun considering them on 22.10.2020. Quite obviously the CIRP was at an advanced stage nearing finalization of the Resolution Plan be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity allowed the said I.A. 95/2021 on 16.02.2021 passing an ex-parte` order by condoning the delay in filing the claim of ₹ 9.65 crores by the Respondent, which had earlier been rejected by the RP. While passing this order, no notice was issued to the Appellant/RP nor was the RP afforded an opportunity to present his reply to the application. 3. The Appellant further states that when he came to know of the impugned order dated 16.02.2021 he filed an application bearing I.A. No. 1374(PB)/2021 under Rule 154 of National Company Law Tribunal Rules, 2016 (in short NCLT Rules ) for rectification of the impugned original order dated 16.02.2021 as the order failed to record any submission of the RP. This application I.A. No. 1374(PB)/2021 was dismissed by the Adjudicating Authority vide the impugned rectification order dated 06.04.2021, without considering and looking into facts that there was indeed an accidental omission by the Adjudicating Authority in passing the original impugned order dated 16.02.2021. Aggrieved by both the Impugned Orders the Appellant/RP has filed the present appeal praying for setting aside both the impugned orders viz. order dated 06.04.2021 in I.A No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n process as IBC proceedings are to be completed in strict timelines. 7. The Ld. Additional Solicitor General appearing for the Respondent has argued that the claim of the Respondent was submitted to the RP prior to the resolution plan being approved by the CoC and therefore, even though the claim was not submitted in time, it ought to have been considered by the RP since it is a statutory claim. The Ld. ASG also sought to point out the distinction between the situation in the matter of Office of the Asst. State Tax Department, Government of Maharashtra Versus Shri Parthiv Parikh Ors. (supra) and the situation in the present case by stating that in the instant case the matter was pending before the Adjudicating Authority and, therefore, admission of the Respondent s statutory claim was possible. 8. We first look at the order dated 06.04.2021 in I.A. No. 1374 of 2021 which was filed by the RP seeking rectification of the order dated 16.02.2021. Rule 154 of the NCLT Rules, 2016 is as hereunder:- 154. Rectification of Order.- (1) Any clerical or arithmetical mistakes in any order of the Tribunal or error therein arising from any accidental slip or omission may, at an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for a direction to the RP to admit the claim. On due consideration, this Bench hereby condoned the delay and direct the RP to consider the appeal on merits. Accordingly, appeal is allowed. 12. In the facts of the case we note that a public notice was issued by the RP in the CIRP of Corporate Debtor and ninety days period as provided under Regulation 12(2) of CIRP Regulations expired on 17.12.2019. Respondent filed its claim for ₹ 9.65 crores on 26.10.2020 (later revised vide communication dated 03.03.2021 received by RP on 08.03.2021). When the claim was initially received by the RP on 26.10.2020, the resolution plan was under consideration of CoC which was approved in 10th meeting of CoC on 07.11.2020. After approval of the Resolution Plan by the CoC, the application for approval of the Resolution Plan was filed by the RP before the Adjudicating Authority on 25.11.2020. While the resolution plan was pending for approval, IA No. 95 (PB)/2021 was considered by the Adjudicating Authority and ex-parte` order was passed on 16.02.2021 condoning the delay and for consideration by RP of claim on merits. Subsequently, the RP filed I.A. No. 1374(PB)/2021 on 13.03.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim was submitted to the RP by the Respondent. 15. It is the primary objective of the IBC that effort should be made to achieve successful resolution of the Corporate Debtor. If that doesn t happen, the Corporate Debtor will go towards liquidation which would mean its corporate death. Hence, when prospective Resolution Plans had been received, opened and were being actively considered by the CoC, we do not think it proper that one particular claim of the Respondent should have been considered. 16. It is a moot point that if an opportunity had been granted to the RP at the stage of consideration of I.A. No. 95 of 2021, complete and factual information about the progress of CIRP as well as submission of Resolution Plans and short-listing of Resolution Applicants would have been placed before the Adjudicating Authority for a well-considered decision. 17. We are thus inclined to hold the view that in an appeal wherein rejection of a claim is being considered by the Adjudicating Authority, the RP who has rejected the claim should be heard to arrive at a judicious, fair and transparent decision. This has not been done in the present case. We are, therefore, of the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
