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TMI Blog2022 (9) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... st the Resolution Professional of Corporate Debtor, M/s Shubhkamna Buildtech Private Ltd. for admitting his claim in the Resolution Plan and to be treated as secured Financial Creditor. Aggrieved by the said Impugned Order, the present appeal has been preferred. 2. The Learned Counsel for the Appellant has also filed I.A. No. 1748/2021 in Company Appeal (AT)(Ins.) No. 665/2021 seeking condonation of 60 days delay in filing this Appeal. The Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No. 3/2020 vide order dated 10.01.2022 extended the prescribed period of limitation and passed certain directions and as per Clause III of the said direction in cases where limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have limitation period of 90 days from 01.03.2022. In this Appeal, the prescribed period of limitation of 30 days expired on April, 24,2021 i.e. between 15.03.2020 and 28.02.2022. Thus, the Appellant has limitation period of 90 days from 01.03.2022 and hence, the Appeal is within limitation. 3. The facts of the case, as stated and argued by the Learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Bank be invited to CoC meetings. However, the Appellant has made a submission that inspite of these communications sent both to the IRP and Resolution Professional, their claim was not accepted and neither was the Appellant Bank included in the CoC, and that thereby the Respondent No. 1 contravened Sections 18(b), 21(1) and (2) of the IBC. 6. The Appellant Bank has further mentioned that a Tripartite Agreement was signed between the relevant Homebuyers/allottees, the Corporate Debtor and the Appellant Bank wherein the Homebuyers had subrogated their respective rights to the Appellant and that 'Permission to Mortgage' their relevant flat/units was given by the Corporate Debtor to protect the interests of the Appellant. Further, it has been submitted by the Appellant that it has filed 24 applications before the Hon'ble Debt Recovery Tribunal, New Delhi ('DRT' in short) for recovery of its outstanding amount to be paid by the defaulting Homebuyers and/or the Corporate Debtor on behalf of such Homebuyers. It has been added that the DRT has already issued Debt Recovery Certificates ('DRC' in short) against 9 Homebuyers as well as the Corporate Debtor which authenticates the claim o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish the claim which was not done by the Appellant. Moreover, it has been also contended that the title of the housing units was to be submitted to the Appellant Bank, as per the agreement, only after the units are registered and executed, which having not taken place, the claim of the Appellant Bank is without any basis. On the DRCs, given by DRT, it has been contended by the Respondent that the same have no legal sanctity in respect of those DRCs issued after the initiation of the CIRP process and that DRCs issued prior to CIRP have no relevance as they were not submitted by the Appellant Bank before the Resolution Professional as proof of their claim. 10. The Learned Counsel for the Respondent has further submitted that the successful Resolution Plan of the Corporate Debtor was passed by the CoC members with a voting percentage of 87.57% in favour following which the Resolution Plan Approval Application had been filed by the Resolution Professional in October 2019 with the Adjudicating Authority and thus nothing remains with regard to an undecided claim. 11. We have duly considered the detailed arguments and submissions advanced by the Learned Counsel for both the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gical corollary that follows therefore is that the IRP cannot be expected to process and verify the claims of a creditor without supporting documents. Moreover, from the exchange of e-mails which are placed at Appeal Paper Book (pg 160-174), it transpires that the Appellant Bank did not pay much heed to the difficulty being faced by the IRP in not being able to open the google drive and did not alternatively provide the IRP with hard copies of supporting document even after being prompted to do so. We are, therefore, of the view that the conduct of IRP in this regard therefore does not appear to be unreasonable or wanting in cooperation as has been argued by the Learned Counsel for the Appellant. There is no material before us to either believe that the IRP/Resolution Professional acted in a manner to hurriedly wrap up the CIRP proceedings or willfully tried to stall the claim of the Appellant. 15. On the other hand, the conduct of the Appellant Bank is found to be remiss as due diligence was not made to satisfy the prescriptive requirement of submitting supporting documents along with the claim. The Appellant Bank ought to have been more careful and vigilant particularly since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad popping up which would throw into uncertainty amounts payable by a prospective resolution Applicant who would successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution Applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution Applicant does on a fresh slate, as has been pointed out by us hereinabove. For these reasons, the NCLAT judgment must also be set aside on this count". 18. We, therefore, agree that the ratio which emerges in the above-mentioned judgement is fully applicable in the present matter. Since the Resolution Plan has not only been accepted by the CoC but also placed before the Adjudicating Authority for approval, accepting any belated claim at this stage, will put paid to the efforts achieved so far by the Resolution Professional in completion of CIRP process. In IBC, where time-lines are well laid down, any indulgence shown by way of belated admittance of claim is likely to jeopardise the CIRP and set the clock back which certainly is not the intent and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. Builder shall not deliver and/or cause to deliver the Sale Deed as and when executed and registered to the Borrower/s without the written consent of the Bank." 21. Against the backdrop of these two salient features of the Tripartite Agreement, we find that the decision of this Tribunal in Axis Bank Ltd. Vs. Value Infracon India Pvt. Ltd. & Ors. in Company Appeal (AT)(Ins.) No. 582 of 2020 which has been relied upon by the Learned Counsel for the Respondent wherein a similar Tripartite Agreement was signed and entered between the Homebuyers, Corporate Debtor and the Bank is fully attracted in the present case and the relevant portions extracted below:-- "10. It is clear from the principles laid down by the Hon'ble Supreme Court in 'Pioneer Urban Lands & Infrastructure Ltd. & Anr.' (Supra) that it is the Home Buyer who should be considered as 'Financial Creditors' of the 'Corporate Debtor' whether he has self-financed his flat or has exercised his choice of taking a loan from the Bank. 11. Additionally, we are of the considered view that as per Section 77 of the Companies Act, 2013 every security interest has to be registered with the Registrar within 30 days of its creation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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