TaxTMI 
TaxTMI 
2021 (10) TMI 225
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....olution Process against the Corporate Debtor and the Respondent was appointed as the Interim Resolution Professional who was afterwards confirmed as the Resolution Professional on 06.05.2021 in the first COC meeting. The RP on 07.04.2021, made a Public Announcement inviting claims from all the creditors and stakeholders. A copy of order dated 07.04.2021 passed by this Hon'ble Tribunal in C.P. (I.B.)/7/GB/2021 under the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "the Code"), is annexed herewith and marked as ANNEXURE A (Page no. 12 to 26). 3. That the Operational Creditor/Applicant submitted its proof of claim on 11.05.2021 in FORM D as an Operational Creditor by email and further sent the hard copies of the claim on 31.05.2021 towards its Operational Debt under Regulation 9 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 to the Respondent. That the total claim of the Operational Creditor is of Rs. 63,22,971.00 (Rupees Sixty-Three Lakh Twenty-Two Thousand Nine Hundred Seventy-One Only) A copy of the FORM D dated 11.05.2021 is annexed herewith d marked as ANNEXURE B ....
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....f the Board meetings clearly substantiating the claim of the Applicant. A copy of the email dated 10.06.2021 sent by the RP to the Applicant is annexed herewith and marked as ANNEXURE D (Page No. 59 to 60). 9. That the RP has neither verified the documents submitted by the Operational Creditor nor the records of Corporate Debtor before rejecting the claim. 10. It is submitted that the claim of the Applicant is an operational debt in terms of the Code. In view of the above, it is submitted that Section 5 (21) defines a "operational debt". The relevant portion of 5 (21) of the Code states as under: "(21) Operational Debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the 5[payment] of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority;" 11. That the RP holds a fiduciary relationship with the Corporate Debtor and the Code provides for certain duties and obligations which the RP must adhere to scrupulously to ensure a fair CIRP for every stakeholder related to the Corporate Debtor and the same is evident from sect....
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....happen. The relevant extract of Regulation 13 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 is provided herein below: "...The interim Resolution Professional or 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..." 15. Further, the duty of the RP extends to only the collation of all the claims submitted to it. The RP does not have the jurisdiction to adjudicate upon a claim. In this regard, the Hon'ble Supreme Court of India in Swiss Ribbons Pvt Ltd and Anr. vs. Union of India (2019) 4 SCC 17, has laid down that a Resolution Professional has no adjudicatory powers but must receive and collate all the claims submitted by creditors to him. The role of a Resolution Professional is to present the true and fair picture of the Corporate Debtor and to act as a facilitator between the Corpor....
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....the Operational Creditor / Applicant. Heard both the sides. The Petitioner is given liberty to file written submissions within 7 days from today and copy of the same to be given to the RP. The RP is given another 7 days' time to file rejoinder, if any. 2. Matter is reserved for order." 21. In accordance with the Order dated 03.09.2021, the Applicant filed its written submissions, wherein it made the following submissions: i. The Applicant has preferred the present application being aggrieved by the partial rejection of its claim dated 11.05.2021 as an Operational Creditor. ii. That the present claim is by the Suspended Managing Director of the Corporate Debtor against Non-payment of Salary of the Applicant by the Corporate Debtor. The Applicant has been at different roles in the Corporate Debtor from 05.10.2009 till 07.05.2021. It is submitted that the Applicant's salary dues have not been paid from 05.10.2009. iii. That the present operational debt of the Applicant can be established from the documents below: Annexure No. Documents Page No. in the Main Application C Minutes of Board Meetings 1. 10th BM dated 24.01.2011 - App....
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....nt to the extent of Rs. 7,20,000.00 (Rupees Seven Lakhs and Twenty Thousand Only) which is completely baseless and without application of mind. The above Minutes of the Board Meetings clearly show that the Applicant is to get Rs. 63,22,971.00 (Rupees Sixty-Three Lakhs Twenty-Two Thousand Nine Hundred Seventy-One Only). A copy of the computation of the Operational Debt in accordance with the Minutes of the Board Meetings is annexed herewith for the perusal of this Hon'ble Tribunal. v. That the RP has neither verified the documents submitted by the Operational Creditor nor the records of the Corporate Debtor before rejecting his claim. vi. Therefore, it is prayed from this Hon'ble Tribunal to admit the claim of the Operational Creditor and direct the RP to admit the entire claim of Rs. 63,22,971.00 (Rupees Sixty-Three Lakhs Twenty-Two Thousand Nine Hundred Seventy-One Only) of the Applicant as an Operational Debt. 22. In accordance with the liberty given by this Tribunal, the Respondent/RP filed his Rejoinder Reply in Affidavit, wherein he made the following submissions: i. That the Respondent was appointed as Interim Resolution Professional vid....
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....und that the amount of total claim has neither been accounted in the books of account nor have been shown in the audited financial statement of the CD and No TDS u/s 192 of Income Tax Act 1961". Copy of email dated 10/06/2021 attached Marked as ANNEXUREE. vii. That the reason for the non-admission of balance claim as mentioned above, was communicated to the claimant via e-mail dated 10th June, 2021 and placed before the COC in the 2nd COC meeting held on 14th June, 2021. The COC members noted the same. Minutes of COC attached and marked as ANNEXURE-F. viii. That despite sufficient time given to the claimant to prove his claim, he has failed to provide any evidence that could substantiate the unadmitted due and thereby has filed the present I.A. on 04.08.2021. Thus, lots of water had flown under the bridge since the date of issue of public notice (on 10.04.2021) and the extended period of ninety days as provided under Regulation 12(2) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. ix. It is submitted that to substantiate his claim, the Claimant has submitted only th....
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....men for the period of twelve months preceding the liquidation commencement date". Hence the claimant is not entitled to be paid any amount if any due on account of salary to suspended director despite that the R.P. has admitted the claim of Rs. 7,20,000.00 (Rupees Seven Lakhs Twenty Thousand Only), as it relates before twelve months of CIRP commencement date. xiv. It is submitted that as per Regulation 13 of Insolvency Resolution Regulations 2016 which read as under: - "The interim resolution professional or the resolution professional, as the case may be shall verify claim, as on the insolvency commencement date, within seven days from the date of receipt of claims, and thereupon maintain a list of creditors containing names of creditors along with the amount claimed by them, the amount of their claim admitted and security interest, if any, in respect of claims, and update." As per Regulation 13(2) (d) the IRP is required to file list of claims to the adjudicating authority, the RP filed the list of claims to the adjudication authority within 7 days of receipt of the aforesaid claim and also to the IBBI on 11.06.2021. xv. It is submitte....
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....ear 2019 and a Special Officer was appointed by this bench at the request of the Petitioner therein to manage the CD. That arrangement did not work and the MSME CD has not yet commenced its operation /primary business activities. ii. Number of IAs filed by the present Applicant/ other related Directors earlier in the same CP were disposed of/dismissed. iii. Thereafter, another application under section 7 of IBC, 2016, filed by the FC, has been admitted by this Bench and CIRP started. Again another IA was filed by the Petitioner which had also been disposed of. iv. Now the Applicant has filed this petition for non acceptance of his entire claim as OC by the RP for the salary payable to him as Suspended MD of the CD for the period 2009 to 2021 to the extent of Rs. 63,22,971.00 (Rupees Sixty-Three Lakhs Twenty-Two Thousand Nine Hundred Seventy-One Only). This claim has been made by the applicant mainly on the basis of Board Resolutions. The above claim was never been accounted for in the books of accounts of the CD It is not reflected in the Audited Balance Sheets of the CD except to the extent of Rs. 7,20,000.00 (Rupees Seven Lakhs Twenty Thousand ....