TaxTMI 
TaxTMI 
2021 (10) TMI 493
X X X X Extracts X X X X
X X X X Extracts X X X X
....ncy 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 the FORM C dated 11.05.2021 is annexed herewith and marked as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 of the Financial Creditor in books of Corporate Debtor, however, it being in the control and possession of the R....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ss 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 Regulation 13 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 lays down the manner in which the verification of claims must happen. The relevant extract of Regulation 13 of the IBBI (Insolvency Resolution Process for ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 documents submitted by Financial Creditor nor the records of the Corporate Debtor before rejecting the claim. It is submitted that in the aforementioned documents submitted in support of the Claim the entitlement of the Applicant towards Financial Debt is admitted in books of the Corporate Deb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 their First COC meeting held on 05.05.2021. ii. In response to the Public Announcement, no claim was filed by the Applicant till the cut-off date of filing the claim which was 21.04.2021. However, the Applicant lodged its first claim in FORM-C on 04.05.2021 at 8:56 P.M. via Email claiming himself as Financial Creditor without providing any supportive shreds of evidence ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rthermore 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 form and correct nature of transaction and or documents have preferred to file the instant I.A. No. 50 on 06.09.2021. ix. It is submitted that as per Regulation 13 of Insolvency Resolution Regulations 2016 which provides that the RP is required to verify claim and maintain a list of creditors, the RP filed the list of claims to the Adjudication Authority and IBBI on 11.06.2021. x. It is submitted that as per regulation 14 (1) of Insolvency Resolution Reg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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.-2021 SCC Online has held that the loan provided as interest free also qualifies as financial debt. A. It is submitted that the Supreme Court Order dated 26.07.2021 as stated above is not applicable in the the instant matter on the facts and circumstances as there is no term loan, no repayment schedule, no agreement, the due amount of the claimant is shown under the head of Advance for fertiliser, which is clear evident that the due amount to the claimant is purely in the nature business transaction i.e. sale and or purchase hence can ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es - 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 - "A) Mr. Rishikesh Datta aka. M/s Intrade Corporation extended an accommodation of capital as secured interest free credit facility of Rs. 16,47,628/-"- [Pg. 241] 83rd BM dated 14.04.2020 - ""A) Mr. Rishikesh Datta aka. M/s Intrade Corporation extended an accommodation of capital as secured interest free credit facility of Rs. 45,07,276/-" [Pg. 246] iii. That the documents produced above especially the EGM, Term Sheet, Audit Reports and Minutes of Board Meeting inexplicably prove the existence of debt. The loan amount was repayable on demand by the Corporate Debtor. However, even before the repayment could be done, CIRP wa....