TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 223
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....R2) Mr Zal Andhyarujina (Sr. Advocate) with Mr Mahak Bhatt Advocate (For R3) ORDER Per : V. Nallasenapathy , Member ( Technical ) 1. This is an Application filed by the Applicant for the following reliefs: a) Condone the delay of 1111 days in submitting the proof of claim by the Applicant against the Corporate Debtor, M/s Jyoti Structures Ltd., in the light of non-disclosure by the party and due diligence not practised by the Resolution Professional. b) Accept and admit the claim of the Applicant against the Corporate Debtor and enlist the Applicant in the list of Operational Creditor or Corporate Debtor. c) Recall the order dated 27.03.2019 passed in MA No.1129/ 2019 in this CP or in the alternative declare that the Clause (L)....
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....g with interest. The Corporate Debtor did not produce the documents supporting the fulfilment of export obligations to the applicant and due to this failure, they are liable to pay customs duty along with applicable interest to the Applicant. The Applicant issued a show cause notice to the Corporate Debtor in file number CIU/GEN/miscellaneous-129/2010 dated 07.04.2015 for violating the conditions of advance licence. The Applicant also sent bond enforcement demand notice to the Corporate Debtor on 03.08.2017 and reminders dated 22.11.2017, 03.01.2018 and 18.01.2018. Consequent to the issue of show cause notice and the demand notice, the Applicant passed an Order-in- Original (OIO) on 31.10.2018. 4. The Applicant submits that the Respondent ....
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....P is duty bound to identify the liabilities of the Corporate Debtor and should have sent the notice to the Applicant enabling them to file a claim. The said provision is extracted below: "The interim resolution professional shall perform the following duties, namely: - a) "Collect all information relating to the assets, finances and operations of the corporate debtor for determining the financial position of the corporate debtor, including information relating to- i. Business operations for the previous two years; ii. Financial and operational payments for the previous two years; iii. List of assets and liabilities as on the initiation date; and iv. Such other matters as may be specified; b) Receive and collate all the c....
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....me Court in the case of Arjun Singh ...V/s... Mohindra Kumar and Ors (1964) 5 SCR 946 wherein, it was held as below: "It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with the particular topic and the expressly or by necessary implications exhaust the scope of the power of the Court or the Jurisdiction that may be exercised in relation to a matter by inherent power of the Court cannot be invoke in order to cut across the powers conferred by the Court. The provisions contained in the Code need not be expressed but may be implied or the implicit from the very nature of the provisions that it makes for covering the ....
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.... the Resolution Plan is impermissible and illegal. To buttress this point, he relied on the Judgment of the Hon'ble Supreme Court in the case of Committee of Creditors of Essar Steel India Limited ...V/s... Satish Kumar Gupta (MANU/SC/1577/19) wherein at Para Nos. 66 & 67 it was held as below: "66. Section 31(1) of the Code makes it clear that once a resolution plan is approved by the Committee of Creditors it shall be binding on all stakeholders, including guarantors. This is for the reason that this provision ensures that the successful resolution Applicant starts running the business of the corporate debtor on a fresh slate as it were. In State Bank of India v. Ramakrishnan, MANU/SC/0849/2018: 2018 (9) SCALE 597, this Court relying upo....
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.... as the present case is concerned, we hasten to add that we are saying nothing which may affect the pending litigation on account of invocation of these guarantees. However, the NCLAT judgment being contrary to Section 31(1) of the Code and this Court's judgment in State Bank of India (supra), is set aside. 67. For the same reason, the impugned NCLAT judgment in holding that claims that may exist apart from those decided on merits by the resolution professional and by the Adjudicating Authority/Appellate Tribunal can now be decided by an appropriate forum in terms of Section 60(6) of the Code, also militates against the rationale of Section 31 of the Code. A successful resolution Applicant cannot suddenly be faced with "undecided" cl....