TaxTMI 
TaxTMI 
2021 (8) TMI 1058
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.... submits as follows: 2.1. The applicant and the corporate debtor entered into a Joint Venture Agreement (JVA) dated 03.02.2014 Page 15, IA No. 1840/KB/2019. for completing construction of pumping stations in Begore Khal and Joka Tram Depot and construction of sewerage and drainage network within Diamond Harbour Road catchment. In terms thereof, the corporate debtor was to complete the entire civil work, while the applicant was required to complete the entire electro-mechanical work. The tender for the said work was awarded by the Kolkata Municipal Corporation (KMC) through Kolkata Environmental Improvement Investment Program (KEIIP) vide Contract Agreement dated 15.10.2014. 2.2. As per clause 4 of the said JVA, Page 16, IA No. 1840/KB/2019. the ratio of participation by the applicant and the corporate debtor was as follows:- Applicant : 20% Corporate Debtor : 80% 2.3. Under clause 5 of the said JVA, the liability of the applicant and the corporate debtor towards KEIIP was joint and several, whereas, the specific liability of work of the applicant was for the "Entire Electro-Mechanical Works" and for that of the corporate debtor was for the entire "Civil Works". Page ....
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....entary agreement dated 04.12.2014, WILO Mather and Platt Pumps Private Limited and the corporate debtor entered into an agreement dated 31.01.2019. In the last para on page 29 of the agreement dated 31.01.2019, it is mentioned that "AND WHEREAS there was delay in performing the balance work by Tantia and additional works (both civil and electro mechanical) for Behala Flying Club, which was added at a later stage by KEIIP authority after contract was awarded to JV in compliance of Tantia's obligation." 2.7. Clause 3 of the said agreement dated 31.01.2019 also mentions the ratio of participation as 40% for the corporate debtor and 60% for the WILO Mather and Platt Pumps Private Limited. 2.8. In the 54th Annual Report of the Company Page 32, IA No. 1840/KB/2019 for the year 2018-2019, as uploaded on the BSE, the "Standalone Balance sheet as at 31.03.2019" at page 85 of the application, has been signed by the RP in the capacity of the RP. Further, on page 115 of the application (continuation of the 54th Annual Report), the corporate debtor acknowledges the relationship between the applicant and itself as "investment in the joint venture". Furthermore, at page 1....
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....ndian Overseas Bank v. D.C. Industrial Services Pvt. Ltd. (In Liquidation) IA (IB) 1832/KB/2019, decided on 16.04.2021 stressing on the role of RP in the collation of claims. 2.13. The 54th Annual Report of the corporate debtor for the year 2018-19 acknowledges the debt owed by the corporate debtor to the joint venture company, as Rs. 9.07 crore. The name of Tantia MPPL (WILO), the applicant herein, appears under the heading "Note 42-Related Party Disclosures" in the Standalone Financial Statements for the year ending on 31.03.2019 under the sub-heading, "Outstanding balance payable." 2.14. The applicant has filed a proof of claim with the RP in Form B on 04.10.2019. After much correspondence, the RP communicated his non-acceptance of the claim vide email dated 07.12.2019. The present application was, therefore, filed on 13.12.2019, immediately after the rejection of the claim by the RP. 2.15. To sum up, Mr. Rishav Banerjee submits that two reasons militate against the RP's stand, viz., (a) There is no adjudication that the corporate debtor has suffered losses due to the delay on the part of the applicant. The grievance, if at all, has to be raised with the cl....
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....e applicant vide email dated 27.11.2019 replied that no further work had been completed by the corporate debtor, and the corporate debtor had illegally appropriated the additional payment to itself concerning the Project and accordingly the additional payment would be required to be refunded to the applicant, however, the applicant did not provide any additional documentation to substantiate its claim. After another round of clarification/confirmation, the RP rejected the claim of the applicant on 07.12.2019. 3.5. Mr. Ratnanko Banerji submitted that while he agrees with Mr. Rishav Banerjee that the RP's role should only be collation and not adjudication. In this case, the facts remain that the corporate debtor and the applicant were to perform the terms of a contract awarded by KEIIP. 9.07 crore appears to be an excess payment made by KEIIP to the corporate debtor which has to be adjusted by the internal working of the JV. 3.6. Mr. Ratnanko Banerji refers to page 23 of the application and submits that Tantia has acknowledged that it has appropriated a sum of Rs. 36.93 crores towards the work done so far by Tantia. Out of this, Tantia acknowledges that it was paid an extra....
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....er finalization of accounts. 4.4. There was a gross error of judgment on the part of the Resolution Professional, who is also a qualified Chartered Accountant, in not doing so. What compounds the problem is the same Resolution Professional has acknowledged the liability in the books of accounts of the corporate debtor while functioning as RP. Therefore, it does not stand to reason as to how this claim could not be included with the dues payable to the Operational Creditors. 4.5. We are dissatisfied with the explanation tendered by the RP that no part of the claim could be included until the crystallisation of the same upon completion of the project. 4.6. Here again is a case where immediately after the RP refused to accept the claim, the applicant knocked on the doors of this Adjudicating Authority seeking a determination of the claim of the applicant even before the approval of the Resolution Plan. While both matters i.e., this application as well as the application for approval of the resolution plan were heard and reserved for orders together, the erstwhile Bench approved the Resolution Plan alone while posting this application for hearing once again on 24.03.2020. No r....