Suraksha Realty Limited vs Mr. Anuj Bajpai Resolution Professional
IA No. 1758/2022 In C.P.(IB)2808/2018
Facts:
1.Corporate Insolvency Resolution Process (CIRP) was initiated against the Corporate Debtor by Tribunal on 31.12.2019 and appointed the Respondent herein as the Interim Resolution Professional thereafter confirmed as the Resolution Professional. The RP published a public announcement on 02.01.2022, in Loksatta and Indian Express edition.
2.Applicant seeks the directions of Tribunal to consider the claim of the Applicant as a financial debt under the provisions of section 5(8) of the Code for an amount of INR 19,93,21,632 (INR Nineteen Crores Ninety-Three Lakhs Twenty-One Thousand Six Hundred and Thirty-Two Only) inclusive of interest, which is due and validly payable to the Applicant.
Issue: Whether the claims can be admitted?
Arguments:
Applicant:
1.An agreement was executed between the Applicant as a “Lender” therein and Panache Aluminium Extrusions Pvt. Ltd. as a “Borrower” Blockwel Pvt. Ltd. acted as a “Co-Borrower”. The said financial assistance/loan of Rs. 3,00,00,000/- (Rupees Three Crore only) had been given by the Applicant/Lender to Corporate Debtor/Borrower and Co-Borrower.
2.For the purpose of security, the Co-Borrower i.e., Blockwel executed an agreement dated 05.02.2014 for pledge of shares, wherein the aforementioned Confirming Parties had pledged physical shares of the Co-Borrower in favour of the Applicant.
3.Vide a letter dated 09.12.2018, the Applicant called upon the Confirming Parties and Corporate Debtor to make the total payment of Rs. 9,30,58,613/. Confirming Parties, replied to Applicant’s letter dated 09.12.2018 vide letter dated 19.12.2018 ignored the letter and further asked to furnish the loan documents in spite of the Confirming Parties being involved in the steps of the transaction and being a signatory to the loan document.
4.Due to the non-payment of the dues, the Applicant filed a complaint in Economic Offence Wing. Mumbai which was later transferred to Matunga Police Station. Applicant was not aware of any CIRP proceeding of Corporate Debtor or invitation of any claims from the creditors of Corporate Debtor by the Resolution Professional, Therefore, the Applicant could not file its claim as a secured financial creditor of the Corporate Debtor. However, the amount of loans and advances taken by the Corporate Debtor from the Applicant was reflected in the records and ledger account and balance sheet of the Corporate Debtor. Hence, the Resolution Professional is bound to have the knowledge of the said secured loans and advances outstanding and payable to the Applicant by the Corporate Debtor.
Respondent:
1.Respondent states that the Application is barred by limitation and the Applicant has failed to file its claim before the Respondent Resolution Professional (RP) within the timeline as provided under the Regulation 12 of the IBBI (Insolvency Resolution for Corporate Persons) Regulations, 2016.
2.The Respondent submits that it is a settled law that once a Resolution Plan has already been approved by the CoC no claims can be entertained. The Respondent has also filed IA 1045 of 2021 under section 30(6) of the Code almost 14 months prior to the Application filed by the Applicant.
3.The provisions of the Code does not warrant the RP to individually intimate every creditor to whom the Corporate Debtor may owe dues. The Respondent has duly complied with the regulations which refers to the Public Announcement and the same is not disputed. The Applicant also failed to lodge its claim at the 90th day of the Insolvency commencement date as provided under Regulation 12 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 which also expired on 18.03.2020.
Decision: Hon’ble NCLT dismissed the application.
Rationale:
1.Hon’ble NCLT noted that The public notice under Regulation 6 was published on 02.01.2020 and the last date for filing the claim was 18.03.2020. No claim was filed within a period of 90 days as provided under Regulation 12 (2) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. That being so, as per law no claim can possibly be admitted at such a belated stage. The claim is said to have been filed with the RP on 04.10.2022 vide email whereas the Resolution Plan was approved by the CoC on 30.03.2021.
2.It held that In the instance case also, since the Resolution Plan has already been approved by the CoC and plan is pending for approval with the Adjudicating Authority, admission of any claim at this stage would jeopardize the whole CIRP process and on this short ground, the application deserves to be dismissed being without any merit.
Order:
