TMI Blog2022 (7) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the Applicant was unintentional and hence, this Bench hereby condones the delay, ordering the liquidator to consider the claims - This Tribunal is of the opinion that as per the document annexed in Exhibit C by the Applicant, the Corporate Debtor admits that the Applicant has made an advance against supplies with the interest @12% for an amount of Rs. 2 Cr. This shows that there was clearly a relationship of Debtor and Creditor between the Corporate Debtor and Applicant. Hence, the claim of the Respondent that it is neither a financial debt nor an operational debt is erroneous. This Tribunal relies upon the Supreme Court s Judgement in M/s Consolidated Construction Consortium Ltd. v. M/s Hitro Energy Solutions (P) Ltd., [ 2022 (2) TMI 254 - SUPREME COURT ], where in dealing with a case involving two controversial terms; operational debt and operational creditor of IBC, the 3-judges Bench explained that the appellant would be an operational creditor under the IBC, since an operational debt will include a debt arising from a contract in relation to the supply of goods or services from the corporate debtor. Thus it is concluded that the appellant is an operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one Mr. Modilal Pamecha, the valuer appointed by the Respondent. 4. The Applicant immediately upon receipt of email dated 19.06.2021, filed its claim before the Respondent on 22.06.2021. However, the Applicant was informed by the Respondent vide his email dated 23.06.2021 that the claim of the Applicant has not been accepted. The reason provided for the same, inter alia, was that the public announcement for filing of the claims by the creditors was done on 26.04.2021 and acceptance from all the stakeholders was open on or before 22.05.2021. 5. The Applicant further submits that since Applicant had no knowledge of the liquidation order and commencement of liquidation process; the delay caused in submission of the claims was unintentional. Applicant further states that there are several cases in which the delay in submission of claims have been condoned by the Hon ble National Company Law Tribunal ( NCLT ). In support of his contention Applicant relies upon UCO Bank V. Nicco Corporation Limited, Company Application CA(IB)No.31KB/2018 in Company Petition CP(IB)No.03/KB/2017, the NCLT had held that the Tribunal has the power to grant relief in case there is a delay in submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs.1,70,64,572.31/- (Rupees One Crore Seventy Lakhs Sixty- Four Thousand Five Hundred Seventy-Two and Thirty-One Paisa Only); towards financial debt. A copy of proof of claim is annexed to Application as Annexure A-5. 14. In respect of the operational debt, the Applicant submits that the Parties mutually agreed that the Corporate Debtor was to bear the freight charges and the Purchase Order reflected such understanding between the parties. Clause 4 of Purchase Orders reads: 4. Unless otherwise agreed to, all goods are to be supplied on freight paid basis to the Company s Factory or any branch or depot thereof or to such other place as may be directed by the Company. 15. The Applicant had, in any case, at the time of calling for the supplies from the Corporate Debtor (under the Purchase Orders), has categorically mentioned in their emails dated 11.04.2018 (page 81 of the Interlocutory Application) and 15.09.2017 (page 84 of the Interlocutory Application), that the freight charges for such supplies were to be borne by the Corporate Debtor. The Applicant submits that all goods were to be supplied on freight paid basis to the Applicant or its any branch or depot. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Applicant before the Respondent. 21. The Respondent submits that vide order dated 09.03.2021 this Tribunal in MA No. 1078 of 2020 filed by the then Resolution Professional (RP) Mr. Bhuta directed the commencement of the Liquidation process of the Corporate Debtor and appointed Mr. Jagdish Ahuja as Liquidator. Copy of order dated 09.03.2021 is annexed as Exhibit A to the Affidavit in Reply of the Liquidator. 22. The Liquidator made Public Announcement under Regulation 12 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulation, 2016 in two newspapers, Business Standard and Navshakti inviting submissions of Claims from Creditors of Corporate Debtor. The last date for submission of Claims was 22.05.2021. Copy of Public Announcements dated 26.04.2021 is annexed as Exhibit B to the Affidavit in Reply of the Liquidator. 23. The Respondent submits that the Applicant herein was required to file their Claims on or before 22.05.2021. The Applicant did not file its claim on due date and accordingly, on the basis of claims received, the Liquidator proceeded with filing the list of Stakeholders Report before this Tribunal on 28.06.2021 without t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not admitted and that Claims can only be admitted with the approval of this Tribunal. Accordingly, the Liquidator rejected the Claims as filed by the Applicant. 26. The Respondent has relied on The Deputy Commissioner Division-VII, Central CST Vs Mr. Kiran Shah RP of Victor Stainless Pvt. Ltd: Decision of the Appellate Tribunal Decision of the Appellate Tribunal is summarized in the following points: The Section 21(1) envisage the collation of claims which are received against the Corporate Debtor. It cannot be interpreted that the IRP/RP should collate the claims even if they are received outside the prescribed time limit. Had the Appellant submitted the claim within the time frame and the IRP had not chosen to collate this claim as provided for in the Code, only then can it be stated that there is some material irregularity. In the instant case, the facts on record do not in any manner show that the Resolution Professional was not diligent in performing his duty as envisaged under the Code. It has been clarified by the Hon ble Supreme Court in Ghanshyam Mishra and Sons Private Limited Vs. Edelweiss Asset Reconstruction Co. Ltd. (2021) ibclaw.in 54 SC th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /PR. At the cost of repetition, we hold that the Resolution Professional was not duty bound to collate claims which are belatedly received after the last date thereby delaying the entire CIRP which is a time bound process and further having regard to the fact that the claim of the Appellant was incorporated in the Information Memorandum which was circulated to the Prospective Resolution Applicant and the Members of the Committee of Creditors for their consideration, there is no dereliction of duty on behalf of the IRP/RP as provided for under Sections 18 and 21(1) of the Code. For all the aforenoted reasons, this Appeal fails and is accordingly dismissed. No Order as to costs. 27. In this matter, delay has not been the cause of Rejection of Claims filed by the Applicant. On perusal of the claim, the Liquidator found that the Claims submitted in Form D cannot be considered as Financial Debt and all the communications exchanged between the parties clearly states it as advances for the supply of goods. Besides there are no documentation entered between the parties to reflect the legal backing of a Loan like a Loan Agreement, Demand Promissory Note, etc. TVS Motors is a custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional debt is erroneous. 32. This Tribunal relies upon the Supreme Court s Judgement in M/s Consolidated Construction Consortium Ltd. v. M/s Hitro Energy Solutions (P) Ltd., 2022 SCC OnLine SC 142, where in dealing with a case involving two controversial terms; operational debt and operational creditor of IBC, the 3-judges Bench explained that the appellant would be an operational creditor under the IBC, since an operational debt will include a debt arising from a contract in relation to the supply of goods or services from the corporate debtor. The Bench expressed, no doubt that a debt which arises out of advance payment made to a corporate debtor for supply of goods or services would be considered as an operational debt. 33. Thus, we conclude that the appellant is an operational creditor under the IBC, since an operational debt will include a debt arising from a contract in relation to the supply of goods or services from the corporate debtor. 34. The Corporate Debtor had in the e-mail dated 15.02.2018 annexed in Exhibit C, specifically mentioned that the original shares worth Rs.2Cr. will be sent to the Applicant as a collateral security for the loan an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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