2022 (12) TMI 894 - AT - Insolvency and Bankruptcy

Appeal Dismissed for Failure to File Claim in Insolvency Proceedings

KALYAN DOMBIVALI MUNICIPAL CORPORATION Versus NRC LIMITED, MR. VIKAS PRAKASH GUPTA

The Tribunal dismissed the appeal as the Appellant failed to file any claim despite being aware of the Corporate Insolvency Resolution Process (CIRP) ... Approval of the resolution plan of the Corporate Debtor - Recovery of property tax demand - HELD THAT:- It is clear that CIRP of the Corporate Debtor was initiated on 27.11.2018 and the RP made the public announcement, inviting the claims of all the creditors of the Corporate Debtor by publication in Marathi (i.e.Navshakti) as well as in English (i.e The Free Press Journal) and also published notice on the website of the Corporate Debtor. It has also come on record that the RP sent a letter dated 11.12.2018 to the Appellant intimating about its appointment as IRP of the Corporate Debtor and that he has taken over the charge of the entire asset of the Corporate Debtor w.e.f.15.12.2018 but despite that the Appellant did not choose to put up any claim before the RP whereas according to the RP the claim received from Financial Creditors and Operational Creditors including the Govt. bodies and authorities were duly collated and IM was prepared on 25.03.2019 and as per IM, the claim of the various Govt. agencies was approximately Rs. 2.26 Crores. In the case of Rainbow Paper Limited [2022 (9) TMI 317 - SUPREME COURT], the application filed by the State Tax Officer (1) was dismissed holding that the Government cannot claim first charge over the property of the Corporate Debtor, as Section 48 of the Gujarat Value Added Tax, 2003 (GVAT Act) which provides for first charge on the property of a dealer in respect of any amount payable by the dealer on account of tax, interest, penalty etc. cannot prevail over Section 53 of the Code and thus the question which was raised in the said appeal was as to whether the provision of the IBC and, in particular, Section 53 thereof, overrides Section 48 of the GVAT Act? - It was observed that under the unamended provisions of Regulation 12(1), the Appellant therein was not required to file any claim. Read with Regulation 10, the Appellant would only be required to substantiate the claim by production of such material as might be called for. It was also held therein that the Section 48 of the GVAT Act is not contrary to or inconsistent with Section 53 or any other provisions of the IBC. Under Section 53(1)(b)(ii), the debts owed to a secure creditor, which would include the State under the GVAT Act, are to rank equally with other specified debts including debts on account of workman’s dues for a period of 24 months preceding the liquidation commencement date and that the State is a secured creditor under the GVAT Act. Section 3(30) of the Code defines secured creditor to mean a creditor in favour of whom security interest is credited. Such security interest could be created by operation of law. The aforesaid decision, solely relied upon by the Appellant is not at all applicable to the facts arising out of the case in hand because, firstly, the Appellant did not file any claim, whereas in the case of Rainbow Papers Limited the claim was filed though belatedly. Secondly, the last date for submission of claim in the case of Rainbow was 05.10.2017 and till then unamended provisions of Regulation 12 were in operation as per which the creditor was to submit proof of claim whereas in the present case public announcement for inviting claim was made on 07.12.2018 much after the amendment in Regulation 12 of the Regulations which now provides that a creditor shall submit a claim with proof. Meaning thereby, after the amendment in Regulation 12 filing of the claim has become a sine quo non. It is pertinent to mention that being a statutory authority, it cannot feign ignorance about the necessity to file claim after having been informed by the RP of the CIRP proceedings vide letter dated 11.12.2018. As a matter of fact, the Appellant is to be blamed for not initiating the steps to set up its claim before the RP. Moreover, it has now been settled that if the claims are not submitted to the RP and are not part of the resolution plan then the same shall be deemed to have been extinguished. There are no merit in this appeal for the purpose of interference - appeal dismissed. Issues Involved: Approval of the resolution plan, non-filing of claims by the appellant, statutory liability, and applicability of legal precedents.Detailed Analysis:1. Approval of the Resolution Plan:The Appellant challenged the order dated 13.03.2020 passed by the Adjudicating Authority (National Company Law Tribunal, Mumbai Bench), which approved the resolution plan for the Corporate Debtor under Section 30(6) and 31 of the Insolvency and Bankruptcy Code, 2016. The resolution plan submitted by Adani Properties Private Limited was approved by the Committee of Creditors (CoC) with a 99.88% vote share. The Appellant, Kalyan Dombivali Municipal Corporation, was not made a party to the application for approval of the resolution plan and was not informed about the same.2. Non-Filing of Claims by the Appellant:The Appellant did not file any claim regarding pending property tax dues with the Resolution Professional (RP) nor any application to the Adjudicating Authority. Despite public announcements and a letter dated 11.12.2018 from the RP informing the Appellant about the Corporate Insolvency Resolution Process (CIRP), the Appellant did not submit their claim. The RP had invited claims from all creditors, including government bodies, and collated the claims to prepare the information memorandum (IM).3. Statutory Liability:The Appellant argued that the RP was aware of the litigation between the Appellant and the Corporate Debtor regarding unpaid property tax and should have examined the books of accounts to include the statutory liability in the IM. The Appellant relied on the Supreme Court decision in State Tax Officer v. Rainbow Papers Ltd to argue that the RP had a duty to examine the books of accounts for statutory liabilities.4. Applicability of Legal Precedents:The Appellant cited the Rainbow Papers Ltd case to argue that the resolution plan should not have been approved without including the statutory liability. However, the Tribunal found this case inapplicable because, in Rainbow Papers, the claim was filed albeit belatedly, whereas the Appellant did not file any claim in the present case. Additionally, the Tribunal noted that the amendment to Regulation 12(2) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, which requires a claim with proof, was in effect when the public announcement was made on 07.12.2018. Therefore, the Appellant's failure to file a claim meant that their dues were not part of the resolution plan and were deemed extinguished.Conclusion:The Tribunal concluded that the Appellant did not file any claim despite being informed of the CIRP proceedings and public announcements. The decision in Rainbow Papers Ltd was not applicable as the facts differed significantly. The Tribunal upheld the principle that claims not submitted to the RP and not part of the resolution plan are extinguished, as established in the Supreme Court's decision in Ghanashyam Mishra and Sons Private Limited. Consequently, the appeal was dismissed with no costs.