TMI Blog2022 (9) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... jeopardise the CIRP and set the clock back which certainly is not the intent and purpose of the IBC. Whether the Tripartite Agreement between the Appellant, Corporate Debtor and the borrowers/Homebuyers which has been validated by the Hon ble DRT by issue of DRCs provides enforceable rights in favour of the Appellant Bank? - HELD THAT:- There is a need to take a close look at the terms of the Tripartite Agreement whereby the Appellant Bank sanctioned and released housing loans to some allottees /Homebuyers for purchase of flats in the project floated by the Corporate Debtors. There are substance in the contention of the Learned Counsel for the Respondent that mere permission to mortgage is of no relevance in the absence of not having registered a charge. Furthermore, we also agree that being merely in possession of enforceable rights under Tripartite Agreement is not enough. The claimant was required to act upon those rights and establish the claim before the Resolution Professional which having not been done, nothing remains in respect of the undecided claim. The Adjudicating Authority has committed no error in passing the Impugned Order. We find no cogent reason to int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using project of the Corporate Debtor. It has also been submitted that Corporate Insolvency Resolution Process ( CIRP in short) of the Corporate Debtor, a real estate infrastructure company, was admitted on 26.11.2018 following which the Interim Resolution Professional ( IRP in short) made the Public announcement and invited claims of the creditors for constituting the Committee of Creditors ( CoC in short) and fixed the last date of filing claim as 12.01.2019. 4. It has been further submitted by the Learned Counsel for the Appellant that it filed its claim in Form C on 31.12.2018 and sent the same to the IRP by e- mail, which date was clearly before the last date of submission of claim and followed it by a reminder e-mail on 07.01.2019 seeking acknowledgement from the IRP. Another email was sent on 19.01.2019 to the IRP intimating that supporting documents have also been submitted through google drive and acknowledgement was sought again from the IRP in this regard. Admitting that the IRP responded on 03.02.2019 by e-mail, the Appellant has pointed out that the IRP requested that related documents be submitted in hard copies though as per public announcement made, the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1/Resolution Professional to acknowledge the claim of the Appellant. Aggrieved by this unprofessional and unethical behaviour on the part of the Resolution Professional, the Learned Counsel for the Appellant has sought relief for being treated as a secured financial creditor and admittance of his claim in the Resolution Plan placed before the CoC for approval of the Adjudicating Authority. 8. The Learned Counsel for the Respondent refuting the submissions made by the Appellant has stated that the Appellant Bank never submitted its claim to the IRP alongwith supporting documents in the first go. IRP tried to access the supporting documents, submitted later through google drive by the Appellant, but it could not be opened. It has been further contended by the Learned Counsel of the Respondent that despite written emails sent by the IRP, the Appellants still did not submit their claim properly and later the Resolution Professional also clarified to the Appellant Bank on 01.07.2019 that it never received any claim from the Appellant Bank and therefore not admitted as part of CoC. It has been further argued by the Learned Counsel of the Respondent that instead of providing timely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent reasons/grounds exist to admit the claim at a time when the Resolution Plan has already been approved by the CoC and is pending consideration of the Adjudicating Authority. (ii) Whether the Tripartite Agreement between the Appellant, Corporate Debtor and the borrowers/Homebuyers which has been validated by the Hon ble DRT by issue of DRCs provides enforceable rights in favour of the Appellant Bank. 13. Coming first to the issue relating to submission of claim by the Appellant and whether due diligence was exercised, we notice that the IRP had made the public announcement in conformity with Regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 ( CIRP Regulations in short) alongwith stipulation of the last date of submission of claim. It remains undisputed that the Appellant Bank submitted the claim on 31.12.2018 in Form C by e-mail to the IRP which was well before the last date of submission. However, admittedly it was not accompanied with supporting documents. The supporting documents were later submitted by the Appellant Bank on 07.01.2019 through google drive but not being able to access the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the IRP on the status of their claims. It has, therefore, been correctly observed by the Adjudicating Authority in the impugned order that the Appellant had sat on their unsubstantiated claim for long owing to which their claim could not be verified. In the light of the fact that the Appellant Bank remained slack and lackadaisical in submission of their claim, we are not persuaded to believe that there are any mitigating factors in their favour. 16. This brings us to the question as to whether at this belated stage there are sufficient grounds to admit the claim. From material on record, it is abundantly clear that a lot of time has lapsed since the date of issue of public announcement inviting claim. We also take cognizance of the fact that the time period allowed for submission of claim with proof is on or before the ninetieth day of insolvency commencement date as provided in Regulation 12(2) of CIRP Regulations and that this time period stands expired. The claim submitted by the Appellant Bank could not be verified by IRP as endeavours made by the Appellant Bank to electronically transmit supporting document did not fructify. More importantly, the Resolution Plan has alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntive consideration amount for purchasing the flat has been paid by the Appellant Bank to the Corporate Debtor through the allottees/Homebuyers and that this position is also substantiated by the DRCs issued by Hon ble DRT against respective Homebuyers and the Corporate Debtor. It has also been contended that Corporate Debtor had also issued Permission to Mortgage , pursuant to which, it has marked a lien in favour of the Appellant Bank on the flats financed by it. It has been urged that in a Tripartite Agreement, once an allottee/Homebuyer subrogates the rights under the asset in favour of a transferee, the Homebuyers as transferror is not entitled to file the claim and such right to file the claim can only be exercised by the transferee. The judgement of Hon ble Supreme Court in the matter of Dena Bank (Now Bank of Baroda) Vs. C. Shivakumar Reddy Ors. : (2021) 10 SCC 330 has also been relied upon to support the contention that a final judgment and/or decree of any Court or Tribunal or any Arbitral Award for payment of money, if not satisfied, would fall within the ambit of a financial debt, enabling the creditor to initiate proceedings under Section 7 of the IBC. 20. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his subject matter cannot be viewed from such a narrow compass. It is definitely not the scope and objective of the Code to include Banks/Financial Institutions which have advanced loans to Home Buyers to be considered as Financial Creditors and included in the CoC, specifically in the light of the fact the liability to repay the Home Loan is on the individual Home Buyers. This would defeat the very spirit and objective of the Code aiming at Resolution and maximization of the assets of the Corporate Debtor . Presence of a mere tri-partite Agreement does not change the character of the amount borrowed by the Home Buyer vis- -vis the Bank and vis- -vis the Corporate Debtor .. . 22. We find substance in the contention of the Learned Counsel for the Respondent that mere permission to mortgage is of no relevance in the absence of not having registered a charge. Furthermore, we also agree that being merely in possession of enforceable rights under Tripartite Agreement is not enough. The claimant was required to act upon those rights and establish the claim before the Resolution Professional which having not been done, nothing remains in respect of the undecided claim. 21. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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