TaxTMI 
TaxTMI 
2021 (4) TMI 1259
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....ncy & Bankruptcy Code, 2016, seeking the following reliefs: a. Direction to the Liquidator to accept the claim of the Appellant, amounting to Rs. 71,33,65,128/- (Rupees seventy-one crore thirty-three lakh sixty-five thousand one hundred and twenty-eight only), as "other creditor" of the Corporate Debtor, in terms of regulation 20 of the Insolvency & Bankruptcy Board of India (Liquidation Process) Regulations, 2016 and condonation of delay of 90 days in preferring the instant appeal arising from the rejection of the claim Submission on behalf of the Appellant by Mr. Ratnanko Banerji, learned Senior Counsel appearing for the Appellant. 2. Mr. Banerji submitted that the Appellant herein had awarded two contracts to the Corporate Deb....
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.... 2. Liquidated Damages recoverable at the rate of So/o of the entire contract value Rs. 9,45,00,000/- 3. Miscellaneous expenditure Rs. 6,02,47,281/- 4. Additional structural 1416 MT Rs. 1,55,24,847 /- 5. Cost of completion of the balance work under the contract Rs. 44,03,97,876/- 6. Material (Structural Steel) issued on loan Rs. 6,39,14,305/- Total Rs. 71,33,65,128 /- [Rs. 71,33,64,588 /-] 5. Mr. Banerji stated that upon the Corporate Debtor being admitted to Insolvency vide Order dated 30.07.2018, Appellant had filed a claim in Form 'F' with the Resolution Professional on 26.10.2018. No additional documentation other than whatever submitted by the Appellant, was called for by the Reso....
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....ed Counsel appearing for the liquidator. 9. Mr. Ram Ratan Modi, Liquidator, has filed his reply affidavit in the matter. He submitted that upon receipt of the order, the Corporate Debtor started execution of the package and has already completed substantial portion of the package, i.e., about 90% of the supply and 40% of erection, Mr. Dipankar Das submitted. 10. Mr. Dipankar Das further submitted that, first unit has already been commissioned and is presently under commercial operation utilizing the Ash Handling Package. The work is still continuing, the commissioning of second unit is expected to be taken up soon and the third unit will be commissioned subsequently. Since the execution of the project is continuing and ongoing on dail....
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....l provisions. Hence, the claim towards cost estimate for award of balance work of at the prevailing market rate needs to be considered and admitted, Mr. Banerji submitted. 14. While denying that there was any delay in release of funds for execution of the package, Mr. Banerji further submitted that the Liquidator along with the officials of the Corporate Debtor was to continue business as a going concern. In furtherance of the same, in the month of July 2019, the Liquidator had signed a program with the Appellant for supply of balance materials and execution of site works within a timeline. However, none of the commitments for supply of material and site execution could be met with. Common facilities for the smooth functioning of fi....
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.... even during the liquidation period. However, such ground does not safeguard the Appellant from subsequent development in the liquidation process of the Corporate Debtor, where the Corporate Debtor does not receive bids for its assets being a going concern. Such circumstance is highly likely...". 18. Admittedly, there has been delay in execution of the contract, the blame of which is being laid on the other party by the either side. However, the delay in execution of the said contract cannot form basis of a claim of such nature in a proceeding such as this, especially when such claim is contingent on Corporate Debtor not being sold as a going concern. 19. Furthermore, allowing the claim of the Applicant when the said contracts are sti....