Axis Bank Limited vs. Shubhkamna Buildtech Private Limited & Anr.
Company Appeal (AT) (Ins) No. 665 of 2021
Facts:
1.Axis Bank Limited is that the said Bank provided loan aggregating Rs. 30,58,22,625/- (Rupees Thirty Crore Fifty-Eight Lakh Twenty- Two Thousand Six Hundred and Twenty-Five Only) to certain Homebuyers/allottees under the housing project of the Corporate Debtor. It has also been submitted that Corporate Insolvency Resolution Process (‘CIRP’ in short) of the Corporate Debtor, a real estate infrastructure company, was admitted on 26.11.2018 following which the Interim Resolution Professional (‘IRP’ in short) made the Public announcement and invited claims of the creditors for constituting the Committee of Creditors (‘CoC’ in short) and fixed the last date of filing claim as 12.01.2019.
2.Axis filed its claim in Form C on 31.12.2018 and sent the same to the IRP by e- mail, which date was clearly before the last date of submission of claim and followed it by a reminder e-mail on 07.01.2019 seeking acknowledgement from the IRP. An email was sent on 19.01.2019 to the IRP intimating thatsupporting documents have also been submitted through google drive and acknowledgement was sought again from the IRP in this regard. Admitting that
the IRP responded on 03.02.2019 by e-mail.
3.IRP was replaced and RP was appointed after which axis inspected about the claim for which RO replied that he has not received any claim. e-mail was sent to the Resolution Professional on 04.07.2019 stating that it had already submitted its claim on 31.12.2018 and that their claim be considered and the Appellant Bank be invited to CoC meetings
4.Application was filed against the rejection which was rejected by the AA. Appellant (Axis bank is challenging the order)
Issue: Whether the Appellant has shown due diligence in submitting the claim before the IRP/Resolution Professional?
Arguments:
For Appellant:
1.Counsel for appellant submitted that there has been failure on the part of the Respondent No. 1/Resolution Professional to acknowledge the claim of the Appellant. Aggrieved by this unprofessional and unethical behaviour on the part of the Resolution Professional, the Learned Counsel for the Appellant has sought relief for being treated as a secured financial creditor and admittance of his claim in the Resolution Plan placed before the CoC for approval of the Adjudicating Authority.
2.Appellant Bank has further mentioned that a Tripartite Agreement was signed between the relevant Homebuyers/allottees, the Corporate Debtor and the Appellant Bank wherein the Homebuyers had subrogated their respective rights to the Appellant and that ‘Permission to Mortgage’ their relevant flat/units was given by the Corporate Debtor to protect the interests of the Appellant. Further, it has been submitted by the Appellant that it has filed 24 applications before the Hon’ble Debt Recovery Tribunal, New Delhi (‘DRT’ in short) for recovery of its outstanding amount to be paid by the defaulting Homebuyers and/or the Corporate Debtor on behalf of such Homebuyers. It has been added that the DRT has already issued Debt Recovery Certificate
For Respondents:
1.Counsel for the Respondent refuting the submissions made by the Appellant has stated that the Appellant Bank never submitted its claim to the IRP alongwith supporting documents in the first go. IRP tried to access the supporting documents, submitted later through google drive by the Appellant, but it could not be opened.
2. It has been further argued by the Learned Counsel of the Respondent that instead of providing timely clarifications to the queries raised by the IRP/Resolution Professional on the claim, the Appellant chose to sit over it’s rights during the CIRP of the Corporate Debtor and by belatedly seeking admittance of their claim now, it is an attempt to derail the CIRP process. It has also been argued that it was duty on the part of the Appellant to have submitted on time the clarificatory documents with respect to their claim before the Resolution Professional and that in the absence of such supporting documents, the Resolution Professional could not have processed and accepted the claim of the Appellant.
3.In respect of the Tripartite Agreement entered between the allottees/ Homebuyers, Appellant Bank and the Corporate Debtor, the Learned Counsel for the Respondent while admitting that such agreement had actually been entered into, however, added that the Appellant was required to act upon the enforceable rights provided under the agreement and establish the claim which was not done by the Appellant
Decision: NCLAT held that appellant had not shown diligence while submitting the claim.
Rationale:
1.Appellant Bank submitted the claim on 31.12.2018 in Form C by e-mail to the IRP which was well before the last date of submission. However, admittedly it was not accompanied with supporting documents. The supporting documents were later submitted by the Appellant Bank on 07.01.2019 through google drive but not being able to access these documents sent through google drive, the IRP accordingly informed the Appellant Bank on 03.02.2019 and sought hard copies of the same.
2.It also noticed that from 05.02.2019 onwards till 01.07.2019, there was no further correspondence made by the Appellant Bank with the IRP/Resolution Professional. Infact during this aforesaid period, the Appellant Bank did not remain in touch with the IRP or Resolution Professional and made no endeavours to remain updated about the status of the claims or the CIRP process.
3.Logical corollary that follows therefore is that the IRP cannot be expected to process and verify the claims of a creditor without supporting documents. Moreover, from the exchange of e-mails which are placed at Appeal Paper Book (pg 160-174), it transpires that the Appellant Bank did not pay much heed to the difficulty being faced by the IRP in not being able to open the google drive and did not alternatively provide the IRP with hard copies of supporting document even after being prompted to do so. We are, therefore, of the view that the conduct of IRP in this regard therefore does not appear to be unreasonable or wanting in cooperation as has been argued by the Learned Counsel for the Appellant.
Order:
