TMI Blog2022 (10) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor a fresh start and resolves, once and for all, the financial position of the Corporate Debtor as it stood on the day of approval of the Resolution Plan, in order to allow it to have a clean slate for the future. This Tribunal also notices that amended provision as contained in Section 31 of I B Code, 2016 makes the Successful Resolution Plan binding on all concerned including the Government. It is held in the judicial pronouncement that this particular Amendment to be clarificatory in nature and hence, retroactive / retrospective in operation. Therefore, any Claim, even if it pertains to a date, prior to the effective date of this Amendment, would not be entertained after the Resolution Plan is so approved. Thus, the provisions in the I B Code, 2016 this Tribunal upholds the decision of the Resolution Professional adjudicated by the Adjudicating Authority to reject the Claims of the Appellant on the basis that claims are unsupported and documentary evidence furnished by the Appellant were not proper. Whether the relief sought by the Appellant for payment of Rs. 62,31,242/- towards claim from contingency fund admissible? - HELD THAT:- The Contingency Fund is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Professional vide email dated 29.07.2019 had requested the Appellant to submit supporting documents to establish the `Claims and had also listed out the `Documents required. However, the Appellant had failed to furnish those documents and therefore the Resolution Professional vide email dated 17.08.2019 stated that he was not able to `Admit the Claim of the Appellant . 5. The Adjudicating Authority held that, in these circumstances, the relief(s), as sought by the Appellant cannot be granted, especially keeping in view of the Judgment of the Hon ble Supreme Court of India, `in the matter of Ghanashyam Mishra . 6. Aggrieved by the Impugned Order , passed in IA/IB/920/2020 in CP/280/IB/2018 by the Adjudicating Authority (National Company Law Tribunal, Chennai Bench-II), the Appellant has preferred the present `Appeal , before this Tribunal. Appellant s Submissions: 7. The Learned Counsel for the Appellant pointed out that Mr. S. Gopi, Proprietor, Goutham Roadways is an Operational Creditor of the Corporate Debtor , M/s Empee Distilleries Limited . The Appellant is in Business of Transportation of Goods of the Corporate Debtor , since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofessional of the Corporate Debtor was appointed vide order dated 13.12.2018. The Corporate Insolvency Resolution Process of the Corporate Debtor had commenced on 01.11.2018 and completed on 20.01.2020 with the Resolution Plan , submitted by the Respondent No. 3 getting approved by the Adjudicating Authority . The Monitoring Committee was formed for ensuring the successful implementation of the Resolution Plan with the Respondent No. 2 as its `Head . 15. The Learned Counsel for the Respondent No. 2 further pointed out that the Appellant had filed `Claims much beyond the period of 90 days prescribed in the IBBI (Resolution Process for Corporate Persons) Regulations, 2016 (90 days ended on 29.01.2019) and therefore, the Claims were not accepted initially as there was a delay of 130 days. 16. Pursuant to the orders of the Adjudicating Authority dated 26.07.2019 passed in MA/693/2019 requiring the Resolution Professional to look into the matter and decide on the `Claims received by him in accordance with `Law and accordingly, the Respondent No. 1 `received the Claims and started the process of verification. During the verification of the claims, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant with an acknowledgment by the Corporate Debtor or the Authorized Representative or `any acknowledgment of the `Debt , by the Corporate Debtor or the Authorized Representative were not made available by the Appellant . f. Copy of the Due Certificate or outstanding balance payable statement issued by the Corporate Debtor was not supplied by the Appellant . g. No record of communication between the Appellant and the Corporate Debtor prior to the Corporate Insolvency Resolution Process regarding the transactions that establish the claims of the Appellant were provided by the Appellant . h. Any other document to establish that the claims were genuine were not too provided by the Appellant . 19. The Learned Counsel for the Respondent No. 2 mentioned that no endeavours were made by the Corporate Debtor in furnishing any document regarding claims of the Appellant raising doubt in at all any transport services of the Appellant were availed by the Corporate Debtor . 20. The Learned Counsel for the 2nd Respondent further briefed that the Appellant claiming to be in the Business of providing Transportation Services via lorry could not produce the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CoC meets the requirements as referred to in sub-section (2) of Section 30, it shall be binding on the Corporate Debtor and its employees, members, creditors, guarantors and other stakeholders. Such a provision is necessitated since one of the dominant purposes of the I B Code is, revival of the Corporate Debtor and to make it a running concern. 61.......The legislative intent of making the resolution plan binding on all the stake-holders after it gets the seal of approval from the Adjudicating Authority upon its satisfaction, that the resolution plan approved by the CoC meets the requirements as referred to in subsection (2) of Section 30 is, that after the approval of the resolution plan, no surprise claims should be flung on the successful resolution applicant. The dominant purpose is, that he should start with fresh slate on the basis of the resolution plan approved. 86.......The legislative intent behind this is, to freeze all the claims so that the resolution applicant starts on a cleans late and is not flung with any surprise claims. If that is permitted, the very calculations on the basis of which the resolution applicant submits its plans, would go hay wire and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unverified claims of the Appellant . For this reason alone, the appeal is infructuous, ex facie, and deserves to be dismissed. Also, the Appellant has been very late in filing the claims as well as this `Appeal is also badly delayed. 27. Learned Counsel for the Respondent No. 3 submitted that the Corporate Insolvency Resolution Process had commenced on 01.11.2018. As per `Regulation 12 of the CIRP Regulations , the outer limit for filing of `claims with the Resolution Professional is 90-days from the Corporate Insolvency Resolution Process commencement date, i.e. till 31.01.2019. The claim was filed before the Resolution Professional only on 10.06.2019, i.e. with a delay of 129 days, with no Application for Condonation of Delay. It is the settled law that the Resolution Professional , is only an Administrative Authority, having no jurisdiction to condone the delay. It is admitted by the Appellant that there is no order condoning the delay in his favour, for his `Claim to have been considered favourably, by the Resolution Professional . It is also admitted by the Appellant that the order passed by the Adjudicating Authority in MA/693/2019, only, had directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds as under: 9 (3) The operational creditor shall, along with the application furnish- (a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor; (b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt; (c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt 1[by the corporate debtor, if available;] 2[(d) a copy of any record with information utility confirming that there is no payment of an unpaid operational debt by the corporate debtor, if available; and (e) any other proof confirming that there is no payment of any unpaid operational debt by the corporate debtor or such other information, as may be prescribed. (b) This `Tribunal has noted that during the `pleadings and averments made by the ₹ 2nd Respondent that he had no access to the Corporate Debtor s books of accounts and records, and he had no access to the `SAP portal to verify the Appellant s claim. This proved t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority under sub-section (1) or within such period as provided for in such law, whichever is later: Provided that where the resolution plan contains a provision for combination, as referred to in section 5 of the Competition Act, 2002, the resolution applicant shall obtain the approval of the Competition Commission of India under that Act prior to the approval of such resolution plan by the committee of creditors.] [emphasis supplied] (d) This Tribunal also takes into consideration the decision of the Hon ble Supreme Court in Ghanashyam Mishra and Sons Private Limited vs. Edelweiss Asset Reconstruction Company Limited (2021) 9 SCC 657 58. Bare reading of Section 31 of the I B Code would also make it abundantly clear, that once the resolution plan is approved by the Adjudicating Authority, after it is satisfied, that the resolution plan as approved by CoC meets the requirements as referred to in subsection (2) of Section 30, it shall be binding on the Corporate Debtor and its employees, members, creditors, guarantors and other stakeholders. Such a provision is necessitated since one of the dominant purposes of the I B Code is, revival of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ONCLUSION. 95. In the result, we answer the questions framed by us as under: i. That once a resolution plan is duly approved by the Adjudicating Authority under subsection (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan; ii. 2019 amendment to Section 31 of the I B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which I B Code has come into effect; iii. Consequently, all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the approval of the plan, the entire plan would become unworkable . The Hon ble Supreme Court had mentioned that such surprise `Debts cannot be put upon the `Resolution Applicant , which were not laid down in its `Resolution Plan . If that is allowed, the very calculations on which the Resolution Applicants rely to submit their Resolution Plans would go awry. (h) The Hon ble Supreme Court of India had laid emphasize that the Successful Resolution Applicant should start with a `clean slate , on the basis of its `Approved Plan (i) This `Tribunal also notices that amended provision as contained in Section 31 of I B Code, 2016 makes the Successful Resolution Plan `binding on all concerned including the Government . It is held in the judicial pronouncement that this particular Amendment to be `clarificatory in nature and hence, retroactive / retrospective in operation. Therefore, any Claim, even if it pertains to a date, prior to the effective date of this Amendment, would not be entertained after the Resolution Plan is so approved. (j) In view of facts of the case as discussed above, the provisions in the I B Code, 2016 and cited Judgments of the Hon ble Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not precise due to any contingency or other reason, the interim resolution professional or the resolution professional, as the case may be, shall make the best estimate of the amount of the claim based on the information available with him. (2) The interim resolution professional or the resolution professional, as the case may be, shall revise the amounts of claims admitted, including the estimates of claims made under sub-regulation (1), as soon as may be practicable, when he comes across additional information warranting such revision. [emphasis supplied] (e) The Resolution Plan is a `Rehabilitation Plan for the Corporate Debtor going in `Insolvency . It is prepared, based on the Information Memorandum , provided by the Resolution Professional , targeting `Legal, Financial, Management and Technical strategies , in order to bring the Corporate Debtor back on its feet at the earliest point of time. As per Regulation 37 (mentioned hereunder), it empowers the Resolution Professional to be `Flexible in ascertaining and including `Claims of Creditors and it is not limited only to the Clauses contained therein Regulation 37 of CIRP Regulations No. IB ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
