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TMI Blog2024 (1) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... A Nos.721 of 2023 and IA No.722 of 2023 filed by the Appellant(s) seeking a direction to admit their claim have been rejected. 2. Brief facts giving rise to these two Appeal(s) are: (i) By an order dated 26.09.2019 passed on an Application filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "Code") by Bank of Maharashtra, Corporate Insolvency Resolution Process ("CIRP") commenced against the Corporate Debtor - D S Kulkarni Developers Ltd. The Respondent invited claims from the creditors on or before 09.10.2019. (ii) A Claim in Form CA (Submission of claim by Financial Creditors in a Class) for an amount of Rs.166,74,48,579/- and another Claim in Form-F for an amount of Rs.59,000/- was filed by D.S. Kulkarni & Associates. (iii) The Resolution Professional ("RP") vide his email dated 14.10.2019 asked the Appellant D.S. Kulkarni & Associates to provide for documents to substantiate their claim. The RP sent reminder dated 13.11.2019. On 03.05.2021, the authorised representative of the Appellant again resubmitted the same Claim Forms on behalf of D.S. Kulkarni & Associates. On 28.05.2021, the RP again asked the D.S. Kulkarni & Associa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Authority held that CIRP order was passed on 26.09.2019, the Resolution Plan was duly approved by the CoC on 13.08.2021 and the Application has been filed with delay. The Adjudicating Authority held that the RP did not commit any illegality or irregularity in rejecting the Claim of the Appellant. IA No.722 of 2023 was also rejected by the Adjudicating Authority, by making similar observations. (ix) These two Appeal(s) have been filed challenging the order dated 31.03.2023 passed respectively in IA Nos.721 and 722 of 2023. 3. We have heard Shri Sandeep Bajaj, learned Counsel appearing for the Appellant(s); Shri Abhijeet Sinha, learned Counsel appearing for the RP; and Shri Arvind Nayar, learned Senior Advocate and Shri Puneet Singh Bindra, learned Counsel appearing for Successful Resolution Applicant ("SRA"). 4. The learned Counsel for the Appellant challenging the order submits that Claims were filed by the Appellant on 09.10.2019, i.e., within the time as published by the RP. It is submitted that along with the Claim Form, the Appellant has also filed respective Memorandum of Understanding ("MoU") as well as Ledger extracts, which prove that amounts were advanced by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating Authority has been approached by the Appellant(s) with inordinate delay, i.e., after more than one and a half year from the approval of the Plan by the CoC. It is submitted that Plan having already been approved by the CoC, the Application(s) submitted by the Appellant(s) were rightly been rejected by the Adjudicating Authority. It is submitted that both the Appellant(s) are 'related party' to the Corporate Debtor and various fraudulent, undervalued and frivolous transactions were done by them with regard to which RP has also filed avoidance application in the year 2021, which are pending consideration. The Corporate Debtor and its related group entities, indulged in various fraudulent transactions with regard to which Promoters are facing several proceedings. It is submitted that documents which were submitted along with claim Form were insufficient to accept the claim and RP has rightly rejected the claim of the Appellant(s). 6. The learned Counsel for SRA also adopted the submission of learned Counsel for RP and submits that Plan having been approved by the CoC and subsequently by the Adjudicating Authority in June 2023, and the order approving the Resolution Plan dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider as to whether on the basis of MoU and Ledger extract, which were filed by the Appellant(s) before the RP, it can be proved that there was any financial debt. The MoU dated 01.01.2011 has been brought on record along with the Appeal as Annexure-A2. The MoU entered between the Corporate Debtor and M/s D.S. Kulkarni & Associates indicate that the Second Party, D.S. Kulkarni & Associates approached the Corporate Debtor for purchasing or jointly develop the properties. The MoU mentions the immovable properties, which is claimed to be owned by the Corporate Debtor for which the Second Party is the Appellant. We need to notice Clause 6 and Clause 11 of the MoU, which are as follows: "6. The Party of the word part approached the Party of the First Part and informed that the Party Of The second Part is interested in purchasing and or jointly developing the properties and around Balewadi area in Pune under residential zone. 11. The parties after negotiations fixed the final consideration to Rs.1,11,00,00,000/- (One Hundred and Eleven Cr. Only). It is further agreed that the said consideration shall be paid in the manner mentioned hereinafter. The parties further admit that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e First Part. E. Thus, Party of the Second part approached to party of the First with intention to purchase proposed units in township at Fursungi, to be constructed in DSKDI. i.e. Party of the First Part. F. The parties after negotiations agreed that, Party of the First Part will allot various Units to be constructed in the township Adm. About 5,00,000/- Sq. ft. built up rate of Rs.6,000/- per sq. ft. thus, the final consideration will be Rs.300,00,00,000/- (Rupees Three Hundred Crores only)." 16. The Claim Form mentions the Appellant as Financial Creditor. We may refer to Section 5, sub-section (8), Explanation (i) and (ii), which was inserted by Act No.26 of 2018 with regard to real estate allottees. The Appellant cannot be treated as a real estate allottees on the basis of MoU, as per the definition of Section 5 (8)(f) Explanation. 17. We have looked into the MoU only to satisfy ourselves whether RP decision with regard to documents submitted by the Appellant were insufficient to accept their Claim as Financial Creditor was correct or not and we are satisfied that no error was committed by the RP in not accepting the Claim of the Appellant(s) as Financial Creditor. 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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