TaxTMI 
TaxTMI 
2021 (6) TMI 273
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....#39;Shubhkamna Lords' of the Corporate Debtor located 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 Nirbhay....
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....Bharat Heavy Electricals Limited, held that: "the resolution professional is given administrative as opposed to quasi-judicial powers..... 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 Cred....
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.... that Corporate Debtor on 03.03.2015 had issued receipt no. 3952 against the payment of Rs. 7,00,000/-. In response to that Respondent sent an email to the Applicant on 04.02.2019 that the proof shown 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 b....
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....he resolution plan by the CoC, Resolution professional is authorized to accept anu claim from any of the creditors. Therefore, application filed by the Financial Creditor/Non applicant is not maintainable at this stage, hence rejected." xi. That the Annexure 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 ....
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....wing: i. That the Hon'ble Supreme Court of India in "Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta & Ors.--" observed that: '88. 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'' 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 ....
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.... to repeat the arguments advanced on behalf of the both the counsels. 8. On perusal of averments made in the application, reply filed by the Resolution Professional, the written submissions filed by the parties and submissions made by the Ld. Counsels appearing for the Parties, when we consider the claim of the Applicant, we notice that out of the claim of Rs. 9 Lakhs, 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....
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.... the resolution professional, as the case may be, shall verify every claim, as on the insolvency commencement date, within seven days from the last date of the receipt of the claims, and thereupon maintain a list of creditors containing names of creditors along with the amount claimed by them, the amount of their claims admitted and the security interest, if any, in respect of such claims, and update it. (2) The list of creditors shall be- (a) available for inspection 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 int....
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.... a document given by some person who has himself seen it. Illustrations: (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. A bare perusal of the provision shows that Copies made from the original by mechanical processes, which in themselves insure the 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 do....
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....ch 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. IBC Section 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. 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 th....
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....is a specific provision under the Resolution Plan that those claims, which have not been admitted can raise their claim before the Resolution Applicant within Sixty (60) days from the date of approval of the Resolution Plan. We further notice that the RP has also placed reliance upon the few decisions referred (Supra). 29. We have perused the decisions, on which the RP has placed reliance and we find that the facts of those case are different from the facts of the case in hand. Herein the case in hand, it is not the case of the applicant that he had not filed the claim within the time prescribed in the public announcement. It is also not the case of the applicant that he has raised the claim for the first time. Rather, the applicant has duly submitted the claim within the time prescribed under the law and the RP has provisionally accepted the claim. Therefore, the Resolution Applicant must be aware of the fact that the RP has provisionally accepted the claim of Rs. 7 lakhs of this applicant, which is subject to the verification. 30. Hence, we are of the considered view that the decisions upon which the RP has placed reliance are not applicable in the facts and circumstance....