TMI Blog2022 (5) TMI 1368X X X X Extracts X X X X X X X X Extracts X X X X ..... re where inspite of Director of the Corporate Debtor and the Resolution Professional being aware of the inquiry under 7A did not take steps to inform the Department concerned to file its claim in the CIRP process and both Resolution Professional and Respondent No.2 Resolution Applicant now contend that no claim has been filed by the Appellant. There is no error in the Resolution Plan not noticing and reflecting their claim. Although Section 18 of the Code uses the expression collate all the claims but the said expressions being followed by the words submitted by creditors , the Resolution Professional is entitled to contend that unless the claim is received by him, he has no obligation to include it in the list of claims or even the Information Memorandum. The law as it exists today does not oblige the IRP/RP to send any information to any creditor or statutory authority even if the records of the Corporate Debtor reflect any liabilities of the Corporate Debtor towards them. It is his sweet will to give information or not to any such entities. There has to be an obligation of the IRP/RP to inform the creditors whose liabilities are on the record of the Corporate Debtor sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of dues and tentative dues against the Corporate Debtor are to the extent of Rs.6,16,716/-. The RP was informed to take the needful action at the earliest. (v) Prior to 12.01.2021, the Appellant has issued Show Cause Notice under Section 7A of the 1952 Act to the Corporate Debtor asking the Corporate Debtor to show cause as to why inquiry be not initiated. Letter dated 02.12.2020 was also sent to the Corporate Debtor. (vi) In the CIRP process of the Corporate Debtor, a Resolution Plan was filed by Respondent No. 2- Sujeet Kumar who was also one of the Director of the Suspended Board of Directors of the Corporate Debtor. Resolution Plan was approved by the Committee of Creditors (CoC) and letter of intent dated 28.08.2021 was issued to the Resolution Applicant and an application for approval of the Resolution Plan was also filed before the Adjudicating Authority. (vii) In pursuance of the Show Cause Notice issued by the Competent Authority, the Respondent No.2, Director of the Corporate Debtor had appeared on several occasions in the year 2001. On 22.03.2021, Respondent No.2 appeared before the Employees Provident Fund, Patna through Video Conferencing. Proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no occasions for inclusion of their claim in the Resolution Plan. He submits that Resolution Plan is in accordance with Section 30(2) of the Code which does not warrant any interference. 5. We have heard learned counsel for the parties and perused the record. 6. From the facts of the present case as noticed above it is apparent that the proceedings under Section 7A of 1952 Act were initiated against the Corporate Debtor by issuing Show Cause Notice dated 12.01.2021. Notice was sent to Resolution Professional as well as to the Respondent No.2, who was the Ex-Director of the Corporate Debtor. The Corporate Debtor being a Micro, Small Medium Enterprise (MSME), the Resolution Plan ultimately was filed by Respondent No.2, the Ex-Director of the Corporate Director. From the materials on record, it is clear the Mr. Sujeet Kumar, Director of the Corporate Debtor and now Resolution Applicant was presented himself before the Employees Provident Fund Organisation, Patna through VC and also made his submissions on several occasions even before submission of Resolution Plan by him. Ex-Director/ the Resolution Applicant was also issued Show Cause Notice by the Employees Provident Fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the public announcement made under Section 13 and 15. Resolution Professional is also under Section 25 under duty to maintain an updated list of claims. When we look into the CIRP Regulations, 2016, Regulation 6 provides for public announcement inviting proof of claim. Regulation 7 deals with dues of the operational creditors, Regulation 8 deals with due of financial creditors, Regulation 8(a) deals with creditors in a class, Regulation 9 deals with claims of workmen and employees and 9(a) deals with claims by other creditors. The provisions of the Code and Regulations do not contemplate any cognizance of any ongoing proceeding under which Corporate Debtor may be saddled with any liability financial or otherwise. 10. The present case is a case of that nature where inspite of Director of the Corporate Debtor and the Resolution Professional being aware of the inquiry under 7A did not take steps to inform the Department concerned to file its claim in the CIRP process and both Resolution Professional and Respondent No.2 Resolution Applicant now contend that no claim has been filed by the Appellant. There is no error in the Resolution Plan not noticing and reflecting their cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls.] (b) the latest annual financial statements; (c) audited financial statements of the corporate debtor for the last two financial years and provisional financial statements for the current financial year made up to a date not earlier than fourteen days from the date of the application; (d) a list of creditors containing the names of creditors, the amounts claimed by them, the amount of their claims admitted and the security interest, if any, in respect of such claims; (e) particulars of a debt due from or to the corporate debtor with respect to related parties; (f) details of guarantees that have been given in relation to the debts of the corporate debtor by other persons, specifying which of the guarantors is a related party; (g) the names and addresses of the members or partners holding at least one per cent stake in the corporate debtor along with the size of stake; (h) details of all material litigation and an ongoing investigation or proceeding initiated by Government and statutory authorities; (i) the number of workers and employees and liabilities of the corporate debtor towards them; (j) [***] (k) [***] (l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation to include it in the Information Memorandum and bring the same into the notice of the CoC to enable the CoC to take a wholesome view of entire sequence of facts and circumstances. 16. The law as it exists today does not oblige the IRP/RP to send any information to any creditor or statutory authority even if the records of the Corporate Debtor reflect any liabilities of the Corporate Debtor towards them. It is his sweet will to give information or not to any such entities. We are of the view that there has to be an obligation of the IRP/RP to inform the creditors whose liabilities are on the record of the Corporate Debtor since the object of insolvency resolution is to take into account all liabilities of Corporate Debtor and thereafter resolve it. It is the matter on which attention of regulation making authority and Government has to be drawn by this Tribunal so as to take remedial measures, if any. 17. The law as it stands today does not require any claim which is not filed to be included in the Resolution Plan. In the present case, the claim which is now crystalized under Section 7A was not there at the time of currency of the Corporate Insolvency Resolution Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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