TMI Blog2023 (12) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... of the resolution plan stood extinguished and, if so, whether the Appellant can file a Section 9 application at this stage in respect of such extinguished claims. It is undisputed that the Corporate Debtor had started its operations with a clean slate after settlement of dues with the creditors in terms of the orders of the Adjudicating Authority dated 17.10.2017. It is also a well settled legal precept that a resolution applicant cannot be expected to make a provision in relation to any creditor who has failed to make a claim within the stipulated time-line. It logically follows therefore that there is no legitimate scope in the IBC framework for agitating or initiating any proceeding in respect of a claim which was not part of the resolution plan or was not preferred at the relevant time - in the present case, when CIRP has been terminated way back in 2017 and the Corporate Debtor is already in saddle after following the due process, allowing a Section 9 application to proceed on the basis of an extinguished claim which had not been preferred before the Resolution Professional within the stipulated time cannot be countenanced. The Operational Creditor has endeavoured to indire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alance confirmation, after due reconciliation of accounts, purportedly issued by the Corporate Debtor to the Operational Creditor, the Operational Creditor filed a Section 9 application and claimed an outstanding amount of Rs. 59.32 lakhs including an interest amount of Rs. 30.68 lakhs. In the meantime, prior to filing the present Section 9 application, CIRP was initiated against the present Corporate Debtor on 20.04.2017. Subsequently, a resolution plan was also approved by the Adjudicating Authority and CIRP was completed on 17.10.2017 vide orders issued in CP No. 150/IB/KB/2017. As the Appellant/Operational Creditor had not filed any claim with the Resolution Professional after the Corporate Debtor was admitted into CIRP and has now filed the Section 9 petition only after the approval of the resolution plan, the Adjudicating Authority held that the right of the Operational Creditor to seek remedy under Section 9 of the IBC stood extinguished and rejected their application leading to this appeal. 3. It is submitted by the Learned Counsel for the Appellant that the Corporate Debtor having received goods from the Operational Creditor which had been accepted without any demur can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Learned Counsel for the Respondent that the Corporate Debtor did not have any debt outstanding qua the Operational Creditor. It has been strongly refuted that the Corporate Debtor had admitted any debt payable to the Operational Creditor. It has been further stated that the balance confirmation purportedly submitted by the Corporate Debtor is a forged document. It has thus been denied by the Corporate Debtor that any balance confirmation was issued by them to the Operational Creditor after reconciliation of accounts. Post- reconciliation of accounts, the Corporate Debtor was not required to make any payments to the Operational Creditor and this has been correctly adjudicated by the Adjudicating Authority. Since the claims of the Operational Creditor had already been settled, there arose no default on the part of the Corporate Debtor. Further, the claim made by the Operational Creditor in the demand notice of 08.07.2019 pertain to the period 2013 to 2015 which was prior to the period of CIRP. Since these outstanding amounts pertained to period prior to CIRP, the same cannot be entertained at this stage as the said claims are barred by limitation. 6. Since the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor was justified. 10. The counter submissions pressed by the Respondent is that the Appellant/Operational Creditor did not file any claim with the Resolution Professional after the Corporate Debtor was admitted into CIRP on 20.04.2017. Placing reliance on the judgement of the Hon ble Apex Court in Ghanshyam Mishra Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. (2021) 9 SCC 657 ( Ghanshyam in short), the Learned Counsel for the Respondent has asserted that all unpaid liabilities and claims that are not filed with the Resolution Professional before the approval of the resolution plan and those which are not included in the said resolution plan would stand extinguished. Moreover, these debts having been claimed by the Operational Creditor way back in 24.07.2013 makes the debt barred by limitation. It is further contested that the three opening balances shown by the Appellant to show continuing liability cannot be relied upon as these are ex-facie forged documents. Both the stamp of the Corporate Debtor on the balance confirmation statement and the signature thereon by one Mr. Sumit Kumar on behalf of the Corporate Debtor are forged since no such person was ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olution plan is approved by the Adjudicating Authority, 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 and 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. [Para 95] 28. In light of the said legal precedents, this Adjudicating Authority is satisfied that the right of the Operational Creditor to seek remedy under section 9 of the Code has been extinguished and as such, the instant petition being CP(IB) 1337/KB/2019 shall stand dismissed. ( Emphasis supplied ) 12. The Operational Creditor has assailed the impugned order on the ground that the essential ingredients required to be met in approving the resolution plan particularly the feasibility or viability of the resolution plan has not been examined by the Adjudicating Authority. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case the Operational Creditor has failed to produce any document to show that there has been acknowledgment of debt by a Director of a Corporate Debtor. In support of their contention, reliance has been placed on the judgment of the Hon ble Supreme Court in Asset Reconstruction Company (India) Ltd. v. Bishal Jaiswal (2021) 6 SCC 366 to claim that Sumit Kumar did not have the locus standi to acknowledge the debt of a company under the Companies Act. 14. Analyzing the facts of the present case in the light of the rival contentions made by both parties, material on record and the orders of the Adjudicating Authority dated 17.10.2017 and 13.06.2022, we notice that it is an admitted fact that the Corporate Debtor was admitted into CIRP on 20.04.2017. It has not been controverted or challenged that the Resolution Professional had prepared an updated list of assets and liabilities on the basis of the claims of the creditors. The creditors who had sought their dues to be cleared were paid and their accounts settled. Undisputedly, the Operational Creditor did not file his claims before the Resolution Professional. The resolution plan was approved by the Adjudicating Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to submit such evidence to the interim resolution professional or the resolution professional, as the case may be, till the approval of a resolution plan by the committee. This opportunity had clearly not been availed by the Appellant to submit their claims. 17. The very fact that the Appellant had not formally lodged their claims with the Resolution Professional before the approval of the resolution plan by the Committee of Creditors has rightly been held as gross negligence on the part of the Operational creditor in the instant impugned order. There is no data or document which evidence the existence of the Operational Creditor or their dues prior to termination of the CIRP on 17.10.2017. Even if we accept the contention of the Appellant that there was a Trade Payables column in the balance sheet and it showed an amount of Rs 2417 lakhs as amount payable for FY ending 31.03.2017, there is nothing which specifically mentions about the Appellant being one of the Operational Creditors to whom the trade payable was attributable. This brings us to the averment made by the Appellant regarding acknowledgment of outstanding balance by one Sumit Kumar on behalf of the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
