TMI Blog2022 (9) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016-17, FY 2017-18 and FY 2018-19 regarding acknowledgment of debt. Since they were prepared on 12.3.2020, and contain the admitted claim of NHSH which is in question. Thus, in view of the fact that the last payment by the corporate debtor was made to the financial creditor NHSH on 5.8.2016 and the claim was filed on 26.2.2019. We find that the claim is barred by limitation. The fact that the corporate debtor has paid TDS on interest payable cannot be considered as acknowledgment in writing of the liability by the corporate debtor and therefore, such TDS payment will not have any effect of being an acknowledgment of said debt. The documents on which the RP relied on in accepting and admitting the claim of NHSH and inducting it as a member of CoC does not inspire confidence and should not have been relied upon by the RP in admitting the claim of the NHSH being within limitation. The Adjudicating Authority has, therefore, committed an error in upholding the admission by RP of claim of NHSH - appeal disposed off. - Company Appeal (AT) (Insolvency) No. 615 of 2020 - - - Dated:- 14-9-2022 - ( Justice Rakesh Kumar Jain ) Member ( Judicial ) , ( Mr. Kanthi Narahari ) Member ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he admission of claim of another financial creditor New Hind Silk House Pvt. Ltd. (in short NHSH ) and its inclusion in the CoC with admitted claim of Rs.1,96,63,603.00 and with this addition of the second financial creditor, the voting share of the Appellant was reduced to 25.07% from 100% in the CoC. 3. The Appellant has further stated that the claim filed by NHSH was suspicious because of various discrepancies in the documents filed with Form C. He has also stated that the IRP being aggrieved by the action of the Appellant by filing IA No. 392/KB/2020 for his replacement went on to admit this doubtful claim of NHSH to the detriment of the Appellant, and aggrieved by this action of the RP, he filed IA (IB) No. NIL/KB/2020, which was dismissed by the Impugned Order dated 17.6.2020, whereupon aggrieved by this order, the appellant has preferred this appeal. 4. We heard the arguments of both sides in the appeal and also perused the record. 5. The Learned Counsel for Appellant has argued that the claim of NHSH admitted by the RP is barred by limitation and therefore his inclusion in the CoC on the basis of such a claim is not legal. He has elaborated that the claim in Form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by hand, even though it is a normal practice in the present times that claims are filed either by electronic mail or registered/speed post, so that date of submission is certain. 8. The Learned Counsel for Appellant has claimed that the RP has failed to perform his duty which is stipulated in regulation 13 (1) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (in short CIRP Regulations ) in verifying the genuineness and authenticity of the documents submitted by NHSH, which is a serious dereliction of duty and the Appellant is pursuing action with respect to the conduct of the RP before the Hon ble Delhi High Court. He has further argued that the Adjudicating Authority has failed to appreciate the fact that the balance sheets for the financial years 2016-17, 2017-18 and 2018-19 were prepared by the RP through auditors, on 12.3.2020, after the RP had admitted the claim of NHSH. He has also submitted that the Appellant has filed application IA-392/KB/2020 for change of RP on 13.2.2020 and it is quite probable that the RP, hurt by such action of Appellant, admitted a time-barred claim to NHSH on 2.3.2020, thereb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.2017 and also the of in the outstanding debt in the balance sheet, the said claim is clearly within limitation. Regarding receiving the claim of NHSH in person, the Learned Counsel for R-2 has said that there is no bar in the CIRP Regulations that the claim cannot be received by hand. Also, an issue raised by the Appellant that the date of verification of Form C is 26.12.2019, even though the Form was submitted on 26.2.2019 is due to typographic error. He has further argued that suspended directors of the corporate debtor have confirmed to the RP that the balance confirmations were signed by the corporate debtor and made available to NHSH, and therefore, they are the actual confirmations provided by the corporate debtor to NHSH. 12. The Learned Counsel for R-2 has argued that this appeal is not maintainable because the Appellant has challenged the action of suspended directors in signing the balance confirmation documents, but they have not been impleaded in the appeal, and therefore, the appeal suffers from the deficiency of non-joinder of necessary parties. In any case, he has argued that acceptance of NHSH claim is a matter between RP and NHSH and the Appellant cannot have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of directors, who have signed the balance of statement acknowledging the said debt. In the counter affidavit filed on behalf of RP that in paragraph 12, it is stated that the directors of the corporate debtor have also confirmed the genuineness of the balance confirmations , but nowhere the name or identity of such directors has been disclosed. The Appellant has looked at the record relating to the corporate debtor uploaded on the Ministry of Corporate Affairs website to find out the name of directors who were on the board of corporate debtor as on 1.4.2016 and also 1.4.2017, and also looked at their signatures as they appear on Form DIR-22 filed by the corporate debtor with the Registrar of Companies (and uploaded on the MCA portal). He has reproduced these signatures in Document 2 titled Comparisons Chart of the signatures of the CD (attached at pp. 29-30 of the Short Synopsis filed vide dy. No. 38883 dated 26.8.22) to show that the signatures, as they appear in the balance confirmations given by the corporate debtor s directors and the signatures of the corporate debtor s directors, who were part of the board of corporate debtor on the relevant dates do not match at all. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action of RP. He has joined the RP as respondent in the appeal and therefore, we hold that the appeal is properly constituted. 20. The fact that the corporate debtor has paid TDS on interest payable cannot be considered as acknowledgment in writing of the liability by the corporate debtor and therefore, such TDS payment will not have any effect of being an acknowledgment of said debt. 21. We also find that rule 13 of CIRP Regulations, which is regarding verification of claims by the IRP/RP, enjoins on the IRP/RP the responsibility of verifying every claim submitted and maintain a list of creditors for inspection by members and other stakeholders in the CIRP. We are, therefore, of the view that since the voting share in the CoC is extremely relevant and important element in the CIRP insofar as the insolvency resolution of the CD is concerned. It was the duty of the RP to exercise necessary care and diligence in verifying the claims and scrutinise the documents submitted with Form C for genuineness and authenticity. Such exercise does not appear to have been done by the RP in the present case. We would, therefore, urge the Insolvency and Bankruptcy Board of India to investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
