TMI Blog2021 (10) TMI 1346X X X X Extracts X X X X X X X X Extracts X X X X ..... RP or the RP is authorized under the law to verify the every claim within seven days from the last date of receipt of the claim, and thereupon maintain a list of creditors containing names of creditors along with the amount claimed by them and the amount of their claims admitted. It is further seen that as per Regulation 13 (2) of the IBBI Regulations, the IRP or the RP shall make a list of creditors available for inspection by the persons, who have submitted proofs of claim or by the members, partners, directors and guarantors of the corporate debtor - Since, the authorized representative is appointed under Section 21(6A) of the IBC, 2016 and his rights and duties are defined under Section 25A of IBC, 2016 referred, it is observed that under Section 21(6A)(b), the authorized representative is appointed, if the class of creditors exceeds the number specified under the law. Thus, the authorized representative shall have no role in receipt or verification of claims of creditors of the class, he represents. If the authorized representative shall have no role in receipt or verification of claims of creditors of the class, he represents, then the association or the allottees who c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantially affected by outcome of IA No. 2275/2021, which will decide the status of financial creditors and the composition of the CoC. He further submits that, in fact, Assets Care Reconstruction Enterprise Limited (ACRE) and IDBI Trusteeship Services Limited (hereinafter referred as ITSL) have admitted that the members of the Applicant no. 1 and the Applicants no. 2 to 5 are financial creditors and members of the CoC. He further submits that, as admitted by the IRP himself, the verified claims of the allottees are of Rs. 149 Crores (approx.) and that of the members of the Applicant No. 1 Society are of Rs. 125 crores (approx.). The claims to the extent of Rs. 14 crores (approx.) of the allottees are pending verification. 7. He further submits that so far as the prayer made in IA No. 2275/2021 of ACRE is concerned, the IRP has admitted a partial claim of Rs. 55,06,45,056.52 and also held them to be a related party of the corporate debtor. 8. He further submits that so far as the prayer made by the IDBI in IA/2286/2021 is concerned, the ITSL has filed this application against the rejection of its claim and for being categorised as a related party of the corporate deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the IRP dated 16.05.2021 partially admitting the claim of the applicant of Rs. 55,06,45,056.52/- out of total claim of Rs. 143,54,59,900/- and rejecting the remaining claim of the applicant; b. Pass an order directing the IRP Mr. Shiv Nandan Sharma to admit the entire claim amount of Rs. 143,54,59,900/- of the applicant as Financial Creditors of the Corporate Debtor. c. Hold that the applicant is not a related party of the Corporate Debtor under Section 5 (24) of the IBC. d. Pass an order thereby directing the IRP Mr. Shiv Nandan Sharma to include the applicants in the list of Financial Creditors of the Corporate Debtor for the constitution of the CoC and grant its proportionate voting in the CoC. e. Pass an order of stay restraining the IRP from conducting CoC meeting until admission of claims of applicants and their inclusion in the CoC. f. Pass ad-interim orders in terms of Prayer clause (d) and (e) above; g. Pass any other order as this Hon'ble Adjudicating Authority may deem fit in the interest of justice. 13. On perusal of the prayers made in both the applications, we observe that the ACRE has filed the application for setting asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement for sale; (ii) letter of allotment; (iii) receipt of payment made; or (iv) such other document, evidencing existence of debt. (3) A creditor in a class may indicate its choice of an insolvency professional, from amongst the three choices provided by the interim resolution professional in the public announcement, to act as its authorised representative.] 12. Submission of proof of claims. (1) Subject to sub-regulation (2), a creditor shall submit 21 [claim with proof] on or before the last date mentioned in the public announcement. (2) A creditor, who fails to submit claim with proof within the time stipulated in the public announcement, may submit the claim with proof to the interim resolution professional or the resolution professional, as the case may be, on or before the ninetieth day of the insolvency commencement date.] (3) Where the creditor in sub-regulation (2) is a financial creditor under regulation 8], it shall be included in the committee from the date of admission of such claim: Provided that such inclusion shall not affect the validity of any decision taken by the committee prior to such inclusion. 13. Verificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the claims submitted by creditors to him, pursuant to the public announcement made under sections 13 and 15; (c) constitute a committee of creditors; (d) monitor the assets of the corporate debtor and manage its operations until a resolution professional is appointed by the committee of creditors; (e) file information collected with the information utility, if necessary; and (f) take control and custody of any asset over which the corporate debtor has ownership rights as recorded in the balance sheet of the corporate debtor, or with information utility or the depository of securities or any other registry that records the ownership of assets including- (i) assets over which the corporate debtor has ownership rights which may be located in a foreign country; (ii) assets that may or may not be in possession of the corporate debtor; (iii) tangible assets, whether movable or immovable; (iv) intangible assets including intellectual property; (v) securities including shares held in any subsidiary of the corporate debtor, financial instruments, insurance policies; (vi) assets subject to the determination of ownership by a court or auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (6A) of section 21 or sub-section (5) of section 24 shall have the right to participate and vote in meetings of the committee of creditors on behalf of the financial creditor he represents in accordance with the prior voting instructions of such creditors obtained through physical or electronic means. (2) It shall be the duty of the authorised representative to circulate the agenda and minutes of the meeting of the committee of creditors to the financial creditor he represents. (3) The authorised representative shall not act against the interest of the financial creditor he represents and shall always act in accordance with their prior instructions: Provided that if the authorised representative represents several financial creditors, then he shall cast his vote in respect of each financial creditor in accordance with instructions received from each financial creditor, to the extent of his voting share: Provided further that if any financial creditor does not give prior instructions through physical or electronic means, the authorised representative shall abstain from voting on behalf of such creditor. (3A) Notwithstanding anything to the contrary c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the RP shall make a list of creditors available for inspection by the persons, who have submitted proofs of claim or by the members, partners, directors and guarantors of the corporate debtor. 18. It is further seen that as per Regulation 14 of IBBI Regulations, the IRP or the RP is also authorized under the regulation to determine the amount of claim or revise the amount of claim admitted including the estimates of the claims made under Sub Regulation 1, when she/he comes across additional information warranting such revision. 19. At this juncture, we would also like to refer to Regulation 16A Sub Regulation 5 of the IBBI Regulations and the same is quoted below:- 16A(5). The interim resolution professional or the resolution professional, as the case may be, shall provide an updated list of creditors in each class to the respective authorised representative as and when the list is updated. Clarification: The authorised representative shall have no role in receipt or verification of claims of creditors of the class he represents. 20. A bare perusal of this provision shows that although the IRP or the RP shall provide an updated list of creditors in each c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
