TaxTMI 
TaxTMI 
TaxTMI 
2021 (6) TMI 273
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.... at Plot No. SC-01/D-1, Sector 79, Noida vide a Builder-Buyer Agreement dated 22.11.2014 between the Applicant and the Corporate Debtor. iii. That the Applicant has made payment towards the cost price of the Apartment and in aggregate an amount of Rs. 9,00,000/- has been paid in terms of the Builder Buyer Agreement in the following manner and receipts against the same have been issued by the Corporate Debtor: iv. That out of Rs. 9,00,000/-, Rs. 2,00,000/- was earlier invested in the project namely "Legend" located at Sector 150, Expressway Noida owned by the Corporate Debtor, which was later transferred/shifted to the project "Shubhkamna Lords" owned by the same Corporate Debtor (Kindle Developers Pvt. Ltd) by stating that the project "Legend" was aborted due to certain issues and the same could not be continued. Therefore, the Corporate Debtor had transferred the amount of investment made by the Applicant in its other running project namely, "Shubhkamna Legend" located Sector-150, Expressway, Noida U.P. v. That in pursuant of the public announcement made on 03.08.2018 by the IRP, Mr. Anurag Nirbhaya, the Applicant filed its claim as a Financial Creditor on 13.08.2018. vi. ....
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.... As opposed to this, the liquidator, in liquidation proceedings under the Code, has to consolidate and verify the claims, and either admit or reject such claims under Sections 38 to 40 of the Code. Sections 41 and 42, by way of contrast between the powers of the liquidator and that of the resolution professional, are set out hereinbelow:.." It is clear from these Sections that when the liquidator-"determines" the value of claims admitted under Section 40, such determination is a-decision", which is quasi-judicial in nature, and which can be appealed against to the Adjudicating Authority under Section 42 of the Code." c) The National Company Law Tribunal, Principal Bench New Delhi in GP No. 297/2018 in the matter of Col. Sanjeev Dalai Vs. International Recreation and Amusement Ltd. vide order dated 02.08.2019, inter-alia, passed an order stating that even if the Resolution Plan which is approved by COC but pending for adjudication before the Adjudicating Authority still at this stage claims of the Financial Creditor can be accepted and adjudicated by the RP. xiii. That Section 18 and Section 21(1) Insolvency and Bankruptcy Code, 2016 read with Regulation 10, 13 and 14 of the ....
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....n by the Applicant with regard to balance amount of Rs. 7,00,000/- are not sufficient for the acceptance of the claim and the same is subject to verification from the books of accounts of the Corporate Debtor. iv. That the Respondent cannot blindly rely on the receipt no. 3952 dated 03.03.2015 because the same can be fabricated, until the claims for the amount of Rs. 7,00,000 are verified and confirmed from the books of accounts of the Corporate Debtor as to the receipt of money of Rs. 7,00,000 on 03.03.2015 by the Corporate Debtor. v. That on the basis of the amount admitted of Rs. 2,00,000/- plus interest at the rate of 8% p.a. of Rs. 1,00,384 the Respondent had given voting share to the Applicant, which is 0.01% and he has been inducted in the CoC. The list of Allottees has been shared with the CoC members as on 28.10.2019 and it has been informed that claims are subject to the receipt of any further documents, given an Application under section 19(2) is subjudice before the NCLT, New Delhi Bench. vi. That the Homebuyers Association of the project 'Lords' namely, Lords Social Welfare Association (hereinafter referred to as 'LSWA' in which the Applicant is a....
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....exure 10,-clause 12 of the Resolution Plan specifically gives an opportunity to substantiate the claims by presenting original documents before the Resolution Applicant/Corporate Debtor within 60 days from the date of approval of the resolution plan i.e., cut off date. The relevant excerpts of the clause 12 of the Annexure 10 of the Resolution Plan are reproduced below: "12. Claims received but not admitted by the Resolution Professional will be given an opportunity to substantiate their claims by presenting original documents before RA/CD within 60 days of Cut Off Date, if their balances are outstanding as on 31.03.2018 in the books of account of the Corporate Debtor." xii. That this Tribunal has no jurisdiction to direct the Respondent to admit the claim of the Applicant where there are no documents to verify the veracity of the claim filed with the Resolution Professional/Respondent. xiii. That the claim filed by the Applicant to the tune of Rs. 7,00,000/- stands extinguished in view of the above-mentioned decisions laid down by the Hon'ble Supreme Court and Hon'ble NCLAT. Although, the Applicant does have an opportunity to substantiate their claim within 60 days f....
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....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'' claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution applicant does on a fresh slate, as has been pointed out by us here in above. For these reasons, the NCLAT judgment must also be set aside on this count." ii. That the Hon'ble Appellate Tribunal (NCLAT) JSW Steel Ltd. Vs. Mahender Kumar Khandelwal & Ors. in Company Appeal (AT) (Insolvency) No. 957 of 2019 held the following: "144. Therefore, the conditions stipulated by ....
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....khs, part of the claim of the applicant i.e., Rs. 2 Lakhs has already been admitted by the Resolution Professional and the part of the claim of Rs. 7 Lakhs has been provisionally accepted subject to verification and that has been communicated by the RP to the applicant vide email dated 04.02.2019. 9. We notice that the ground for not accepting the claim of Rs. 7 lakhs paid by the applicant is that the payment was made in cash and the books of accounts of the Corporate Debtor (hereinafter referred as 'CD') were not made available by the Suspended Board of Directors of the Corporate Debtor to the Resolution Professional and that is the reason the verification of that claim could not be done. 10. We further notice that along with the application, the applicant has enclosed the three (3) money receipts issued by the Corporate Debtor (at page 32 to 34 of the application). 11. We further notice that through two cheques dated 28.04.2012, the payment of Rs. 200000/was made on 27.09.2012, whereas Rs. 7 lakhs was paid in cash on 03.03.2015 and that is the reason, the Resolution Professional has only accepted the claim of Rs. 2 lakhs made through two cheques and not accepted the cl....
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....ion by the persons who submitted proofs of claim; (b) available for inspection by members, partners, directors and guarantors of the corporate debtor; (c) displayed on the website, if any, of the corporate debtor; (d) filed with the Adjudicating Authority; and (e) presented at the first meeting of the committee. 14. Determination of amount of claim. (1) Where the amount claimed by a creditor is not precise due to any contingency or other reason, the interim resolution professional or the resolution professional, as the case may be, shall make the best estimate of the amount of the claim based on the information available with him. (2) The interim resolution professional or the resolution professional, as the case may be, shall revise the amounts of claims admitted, including the estimates of claims made under sub regulation (1), as soon as may be practicable, when he comes across additional information warranting such revision. 15. From perusal of the relevant regulations referred above, we notice that the Regulation 8A(2) of the IBBI Corporate Persons Regulation, stipulates the modes by which, the existence of debt due to a creditor in class may be proved. We furthe....
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.... accuracy, of the copy. and copies compared with such copies comes under the purview of the Secondary evidence. 17. An illustration given in the provision also show, a copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter. When we consider the documents filed by the applicant in terms of Section 63 of the Indian Evidence Act, 1872 read with Regulation 8A(2) the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations 2016, we are of the considered view that the applicant has enclosed the relevant documents for verification as per provisions of the Indian Evidence Act, 1872 read with Regulation 8A(2) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations 2016. 18. We further notice that the applicant has enclosed the photocopy of the passbook to show withdrawal of the amount from the bank and that has also been informed by the applicant to the Resolution Professional vide email dated 01.02.2019 (at page 70 of the application). In that email, it has been clearly mentioned that on 11.02.2015, the applicant has withdrawn Rs. 3 lakhs; on 21.02.2015, the applicant has withdrawn Rs. 1.5 la....
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....tion of claims to the creditor and corporate debtor within seven days of such admission or rejection of claims. Regulation 29. Verification of claims (1) The liquidator shall verify the claims submitted within thirty days from the last date for receipt of claims and may either admit or reject the claim, in whole or in part, as the case may be, as per section 40 of the Code. (2) A creditor may appeal to the Adjudicating Authority against the decision of the liquidator as per section 42 of the Code. 23. When we consider the provisions of Section 39 and 40 of the IBC, 2016 along with Regulation 29 of the IBBI Liquidation Regulations, we notice that a liquidator under the law is empowered to admit or reject the claim in whole or in part and a time is also prescribed under Regulation 29 of the IBBI Liquidation Regulations to decide the claims, i.e. within 30 days from the last date of the receipt of the claims. The Regulation 29 (1) of the IBBI Liquidation Regulations says that within thirty days from the last date for receipt of claims, the Liquidator may either admit or reject the claim and Regulation 29(2) gives right to the creditor to file an appeal to the Adjudicating Autho....