TaxTMI 
TaxTMI 
2019 (10) TMI 1360
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....uidator in pursuance of advertisement calling for filing of claims. The claim filed by Applicant was also rejected. Therefore, Applicant filed IA 56/2019 under Section 42 of IBC challenging the order of Liquidator in rejecting the claim. 4. The pleadings in both these Applications are one and the same but the only difference is separate Applications are filed challenging the rejection of claim filed during CIRP and also filed during liquidation. 5. Since averments are common and objections raised in the counter filed on behalf of the Resolution Professional/Liquidator are also common, therefore the two Applications can be disposed by a common order. 6. The averments common to both these Applications filed on behalf of Applicants are as follows:- (1) The Applicant is an engineering company which supplies complete engineering material and rendering services to the minerals and cement industries globally. During the course of business, the Corporate Debtor issued a purchase order on the Applicant for supply of Pipe Conveyor (Ext CHP) which includes Electrical, C&I (Ext CHP), Firefighting (Ext CHP), Pipe, Mandatory spare, conveyor (Ext CHP), Mandatory spare-Electrical....
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....e goods such as fabricated panels and idlers were made ready by the Applicant for despatch but the Corporate Debtor did not take delivery under the pretext of seeking revised billing break up to reflect the implication of Goods and Services Tax (GST). One of the conditions in the purchase order is that the Corporate Debtor would issue Material Dispatch Clearance Certificate (MDCC) to the Appellant for making despatches under the purchase order. Despite several notices and reminders to the Corporate Debtor for submission of inspection report and issue of MDCC, the Corporate Debtor failed to do so. (6) It is the case of Applicant that erstwhile Resolution Professional had illegally invoked the Bank Guarantee given by the Applicant when even according to him a sum of Rs. 13.47 crores was due and payable as per the accounts of the Corporate Debtor. The Applicant also filed IA 206 of 2018 challenging the invocation of Bank Guarantee which is pending before this Tribunal. It is the case of Applicant that it did not commit any breach, and it is the Corporate Debtor Lanco Infratech Limited now represented by the Liquidator which committed enormous delay and committed breach of con....
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.... part of the contract and that Respondent/Liquidator has no right to reject the claim more so, when a breach of contract is committed by the Corporate Debtor. 7. Resolution Professional/Liquidator filed reply. The objections raised in the reply in brief are stated hereunder:- (1) It is the case of Liquidator that the Applicant's claim was duly verified and updated the status of its rejection on the Corporate Debtor's website. Upon verification of records, an amount of Rs. 1,50,85,516/- is actually due to Corporate Debtor by the Applicant and furnished detailed reasons for rejection of its claims as under:- Particular of the amount claimed Amount claimed(Rs.) Amount Accepted(Rs.) Response of the Corporate Debtor/Resolution Professional Claim against supplied made 32,340,000 32,340,000 This is retention amount against supplied items, the claim of which is being accepted. Claim against Goods ready for dispatch (MDCC issued) 11,651,125 0 Claims in respect of the materials which are not dispatched/or have not been received at site, have not been considered. Only the dispatched material can be billed to the Corp....
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....on the following provisions of IBC, 2016 as under:- "38. Consolidation of claims:- (1) The Liquidator shall receive or collect the claims of creditors within a period of thirty days from the date of the commencement of the liquidation process. 39. Verification of Claims:- (1) The liquidator shall verify the claims submitted under section 38 within such time as specified by the Board. (2) The liquidator may require any creditor or the Corporate Debtor or any other person to produce any other document or evidence which he thinks necessary for the purpose of verifying the whole or any part of the claim:. 40. Admission or rejection of Claims:- (1) The Liquidator may, after verification of claims under section 39, either admit or reject the claim, in whole or in part, as the case may be: Provided that where the Liquidator rejects a claim, he shall record in writing the reasons for such rejection. (2) The Liquidator shall communicate his decision of admission or rejection of claims to the creditor and Corporate Debtor within seven days of such admission or rejection of claims". (6) The Liquidator also relied....
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....an actionable claim and this position is made amply clear by the amendment in Section 6(e) of the Transfer of Property Act, which provides that a mere right to sue for damages cannot be transferred". (10) It is contended that the Respondent/Liquidator on receipt of claim amounting to Rs. 31,70,87,930/- duly verified the claim form basing on the documents submitted by the Applicant and also considered relevant records of the Corporate Debtor. Upon due consideration, the Liquidator rejected the claim amount on the ground that the amount claim is in respect of the goods which might have been ready for despatch but were not actually delivered and cannot be admitted. Further as per terms of contract, 80% of the Contract Price was required to be paid on pro rata basis on submission of monthly invoice/bills as per the approved billing break up on completion of the work duly certified by the Corporate Debtor and upon issuance of invoices. It is the case of the Liquidator as on 27.08.2018 is unable to admit claims of the Appellant since as on 27th August, 2018 there was no invoice available in the records of the Corporate Debtor or produced by the Applicant showing amounts due from....
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.... case of Swiss Ribbons Pvt. Ltd. and another Versus Union of India and another. It is further held that the liquidator is exercising function which is of quasi-judicial in nature and therefore, the right of personal hearing is a must and the Applicant has sought for personal hearing while submitting the claim. (2) The contention of the Liquidator that a sum of Rs. 1,50,85,516/- is due from Applicant is incorrect and the liquidator has chosen not to give his reply with regard to a specific averment made by the Applicant in paragraph (1) of its grounds of appeal that even according the email of the Resolution Professional as is then was a sum of Rs. 13.47 crores due and payable as per the accounts of the Corporate Debtor. 9. We have heard the Counsel for Applicant and also the Counsel for Liquidator. The averments common in the application and also the counter and rejoinder are stated above. These Application filed under Section 60(5) and u/s 42 of I & B Code read with Regulations 23, 30 of IBBI (Liquidation Process) Regulations, 2016 challenging the rejection of the claim by Liquidator/Respondent herein. The Learned Counsel for Applicant would contend that Corporate Debt....
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....then only he rejected the claim. 13. The contention of the learned counsel for Liquidator that Applicant claimed money in respect of goods which are said to have been made ready for despatch but they were not delivered. Therefore claim over it cannot be admitted. It is true goods said to have been manufactured were not actually delivered to Corporate Debtor. It is contended that goods were ready but Corporate Debtor failed to take delivery. 80% of the contract price was required to be paid on pro-rata basis on submission of monthly invoices/bills as per the approved billing break-up, on completion of work duly certified by Corporate Debtor. There were no invoices available in the records of Corporate Debtor. Even appellant also did not produce the invoices in support of its claim that part of material was prepared and fit for delivery. No tax invoices raised. Therefore, Liquidator was not in a position to admit the claim. 14. The Counsel contended Liquidator rightly rejected the claim which relates to the goods which are/were under manufacturing as such goods were not delivered to the Corporate Debtor and no invoices were raised. 15. The Learned Counsel would contend that ....