TaxTMI 
TaxTMI 
2021 (10) TMI 493
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.....P.(I.B.)/7/GB/2021 initiated Corporate Insolvency Resolution 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. 14 to 28). 3. That the Financial Creditor/Applicant through Mr. Prokash Dutta submitted its proof of claim on 11.05.2021 in FORM C as a Financial Creditor by email and further sent the hard copies of the claim on 31.05.2021 towards its Financial Debt under Regulation 8 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. 18,38,943.00 (Rupees Eighteen Lakhs Thirty-Eight Thousand Nine Hundred Forty-Three Only) A copy of....
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....2009-10 to 2018-2019, from the bank statement of the Financial Creditor and from the minutes of board meetings (BM's) dated 02.09.2015, 01.08.2016, 30.09.2017 and 14.04.2020 which clearly shows that the Financial Creditor had advanced loans to the Corporate Debtor. A copy of the Audit report for FY 2009-10 to 2018-19 of the Corporate Debtor is annexed herewith and marked as ANNEXURE E (Page No. 45 to 213). A copy of Bank Statement of the Financial Creditor is annexed herewith and marked as ANNEXURE F (Page No. 214 to 220). A copy of minutes of board meeting (BMs) dated 02.09.2015, 01.08.2016, 30.09.2017 and 14.04.2020 of the Corporate Debtor are annexed herewith and marked as ANNEXURE G (Page No. 229 to 247). 8. That as on FY 2018-19 an amount of INR of Rs. 18,38,943.00 (Rupees Eighteen Lakhs Thirty-Eight Thousand Nine Hundred Forty-Three Only) is due and payable by the Corporate Debtor to the Financial Creditor. 9. That all the above said documents that inexplicably prove the existence of debt were submitted to RP along with the claim. 10. That the Applicant/Financial Creditor believes that the Financial Debt is also reflected in the ledger ....
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.... "25. Duties of Resolution Professional. 1. It shall be the duty of the resolution professional to preserve and protect the assets of the corporate debtor, including the continued business operations of the Corporate Debtor. 2. For the purposes of sub-section (1), the Resolution Professional shall undertake take the following actions, namely: a. take immediate custody and control of all the assets of the Corporate Debtor, including the business records of the Corporate Debtor; b. represent and act on behalf of the Corporate Debtor with third parties, exercise rights for the benefit of the Corporate Debtor in judicial, quasi-judicial or arbitration proceedings; c. raise interim finances subject to the approval of the Committee of Creditors under section 28; d. appoint accountants, legal or other professionals in the manner as specified by Board; e. maintain updated list of claims..." 15. Therefore, it is submitted that the provisions of Section 18 and 25 of the Code cast a duty over the RP to collate all claims submitted by the Creditors in pursuant to the public announcement. 16. It is submitted, that Reg....
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....vide email dated 10.06.2021 intimated the Financial Creditor that its claim as a Financial Creditor has been rejected without providing any reasons. A copy of the email dated 10.06.2021 sent by the RP to the Financial Creditor is annexed herewith and marked as ANNEXURE H (Page No. 248 to 249). 19. The RP has without application of mind and without any basis arbitrarily rejected the claim. It is submitted that the supporting documents by the Financial Creditor are clear and legible and as for the contradictions from the earlier emails, it is submitted that the Financial Creditor had initially on 04.05.2021 submitted a wrong claim and it was also clarified to the Respondent about the wrong claim had been filed earlier and to ignore the same. In respect to that the Financial Creditor has clearly written when resubmitting the claim dated 11.05.2021 that the Respondent may ignore all the earlier emails for the submission of proof of claim and consider the present submission as final. A copy of the Email dated 11.05.2021 sent by the Financial Creditor to the Respondent is annexed herewith and marked as ANNEXURE I (Page No. 250 to 251). 20. The RP has neither verified the d....
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.... a. Direct the Respondent/RP Mr. Amit Pareek to admit the entire claim filed by the Financial Creditor/ Applicant of Rs. 18,38,943.00 (Rupees Eighteen Lakhs Thirty-Eight Thousand Nine Hundred Forty-Three Only) b. To pass any such other order as this Hon'ble Tribunal as may deem fit and proper under the facts and circumstances of the case, in the interest of justice, equity and fair trial. 30. The Bench took up the matter on 16.09.2021 wherein, it passed the following order: "The matter is taken up for hearing through Video Conferencing. Heard the learned Counsels appearing for the Petitioner and the Respondent at length. They are given 7 days' time to file written submission in 4-5 pages, if any, giving copy of the same to the other side 3. Matter is reserved for orders." 31. In accordance with the liberty given by this Tribunal, the Respondent/RP filed its written submissions, wherein it made the following submissions: i. That the Respondent is appointed as Interim Resolution Professional vide Hon'ble NCLT order dated 07.04.2021 in C.P.(I.B.)/7/GB/2021 by this Tribunal and confirmed as Resolution Professional by the COC at the....
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....t of the Claim Form, R.P. entirely verified the documents based on records available to him and turned up with the following observations: "As per the information and documents submitted with Form-C and as per the information available with the R.P., it is observed that the claimant is neither financial creditor u/s 5(7) nor the financial debt u/s 5(8) of IBC 2016, the documents available for claim verification are subtle and furthermore in earlier emails contradict forms, information, and documents etc. were submitted by Mr. Prokash Dutta. Hence the entire claim amount has not been admitted." vii. The reason for the non-admission of the claim, as mentioned above, has been communicated to the claimant via email dated 10th June, 2021 and placed before the COC in the 2nd COC meeting held on the 14th June 2021, the COC members noted the same. Copy of Email dated 10.06.2021 and minutes of 2nd COC marked as ANNEXURE-E. viii. Despite having opportunities given to the claimant to prove his claim and having sufficient time to file claim documents, he failed to provide any evidence that could substantiate the unadmitted due, but instead of filing correct ....
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....l authenticity and a valid contract of loan and more interestingly the alleged Binding Term Sheet for Share Purchase was made between the CD & Prokash Datta, the Claimant is not the party of the aforesaid binding term vide Pg. no. 38 of instant application. Further as per the books of CD there are numerous number of inflow and outflow of funds by way of debit and credit transaction and it is in the nature of running account having no commercial effect of borrowing. which is an essential element in terms of section 5(8) of IBC 2016. In the instant application the applicant is the suspended Director and his submission itself is suspicious, contradict and false, further it fails to substantiate his claim as financial creditor with any material evidence or documents and whatever documents submitted are contradict and suspicious. xiv. The claimant himself is in dilemma state of mind about his nature or type of claim and the claim amount, which clearly indicant his malicious intent to disturb the CIRP by one or other ground or reason. xv. That the claimant has submitted that the Hon'ble Supreme Court in Orator Marketing Pvt. Ltd. vs. Samtex Desinz Pvt. Ltd.-202....
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....te Debtor can be ascertained by various documents which are reproduced herein: Ann. No. Documents Page No. in the Application A Extraordinary General Meeting dated 30.09.2010 Pg. 34-37 B Term Sheet dated 27.10.2010 Pg. 38-44 C Audit Report from 2009-10 till 2018-19 Pg. 45-193 2012 - 13 - Long Term Borrowing - Unsecured - Rishikesh Datta - Rs. 34,80,985/- [Pg. 100] 2016-17 - Other Current Labilities -Pg. 134] 2017-18 - Other Current Labilities -Intrade Corporation -Pg. 153] 2018-19 - Other Current Liabilities - Advance for Fertilizers Intrade Corporation - Rs. 49,17,223/- [Pg. 201] D Minutes of Board Meetings Pg. 229-247 45th BM dated 02.09.2015- Rishikesh Datta extended an accommodation of capital as secured interest free credit facility of Rs. 27,39,453/- [Pg. 231] 52nd BM dated 01.08.2016 - "A) Mr. Rishikesh Datta aka. M/s Intrade Corporation extended an accommodation of capital as secured interest free credit facility of Rs. 23,94,495/-"- [Pg. 236] 64th BM dated 30.09.2017 - "....