TaxTMI 
TaxTMI 
TaxTMI 
2022 (3) TMI 1430
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....al Company Law Tribunal, Mumbai Bench) in I.A. No. 1511 of 2021 in C.P. (IB) No. 219 of 2019. 2. The Appellant, Mr. Santanu T Ray, Resolution Professional (in short 'RP') is aggrieved by the direction of the Adjudicating Authority (National Company Law Tribunal, Mumbai Bench) directing him, the Committee of Creditors (in short 'CoC') (R-2) and the Resolution Applicant (R-3) to include additional, belated and unverified claim of Rs. 3,14,81,158/- of (R-1) in the Resolution Plan of the Corporate Debtor (in short 'CD'). The Resolution Plan of the CD has been approved by 98.85% of the Members of the CoC. 3. The 'Corporate Insolvency Resolution Process' (in short 'CIRP') of the CD (Zicom SAAS Private Limited) was initiated vide Adjudicating Authority order dated 18.03.2020 and the Appellant is the RP of the CD duly confirmed by the Members of the CoC. 4. The RP made the public announcement on 13.08.2020. The creditors of the CD were asked to submit their claims with proof on or before 25.08.2020. Even 90 days time period for filing of claim as stipulated in CIRP Regulations expired on 09.11.2020, however, the Respondent No. 1 "Tata Capital Fina....
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....uthority heard the same I.A on 28.07.2021 and reserved the matter for orders and the order was pronounced on 02.09.2021 and the order was uploaded on the website of NCLT on 20.09.2021 and hence the Appellant received the said order on 20.09.2021. The Appellant has accordingly filed the present Appeal on 20.10.2021. 6. The Adjudicating Authority has referred to the Master Lease Agreement dated 14.05.2015 whereby certain security systems and related assets manufactured by 'Honeywell' were leased to the Corporate Debtor in CIRP/Appellant in the Appeal (Respondent before the Adjudicating Authority) for monthly lease rental. The Adjudicating Authority has divided the claim of the R1 (in Appeal) of Rs. 11.79 Crores into two parts Rs. 8.65 Crores approx as arrears as on Insolvency Commencement Date of which (Rs. 95.15 Lacs has already been admitted by the RP) and Rs. 3,14,81,158/- towards the charges incurred during the CIRP period for running the business of the Corporate Debtor as an ongoing concern. The Adjudicating Authority has allowed the amount of Rs. 3,14,81,158/- as claimed by the Respondent No. 1 to be included in the CIRP costs as the assets were used by the CD during ....
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....pearing at Annexure 1 Pg. No. 7 of the submissions made by the Appellant vide diary no. 32064 dated 10.12.2021). They also stated that the first lease commenced on 10.06.2015 and last rental date was 09.06.2017 and end of life equipment was 08.06.2020, last bill month 30.06.2017 and similarly the serial no. 23 rental start date is 01.06.2016 and last rental date is 30.06.2020 with end of life of equipment is 30.06.2021 and the last bill month is 31.05.2020. (ii) It was also pointed out by the Ld. Counsel for the Appellant/RP that schedule 1 clearly sets out the last rental date in terms of the contractual arrangement between the parties and in most of the cases the last rental date is of 2017, 2018 and 2019. Accordingly, defined life of equipment is also stated in the last column of the annexure at pg. 7 of the above document. The Counsel for the Appellant has stated that how the lesser can make the claim beyond the life of the equipment as agreed between the parties. How even billing can be done beyond the life of the equipment. (iii) It was also stated by the Ld. Counsel for the Appellant/RP that they have not received any rental income from those equipments during the CIRP p....
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....solution professional or the resolution professional, as the case may be, on or before the ninetieth day of the insolvency commencement date." (vii) The Regulation 12(2) contemplates a scenario where claim is not filed within the time stipulated in the public announcement. It is in this scenario this regulation permits filing of the claim on or before 90th day of insolvency commencement date. Prior to amendment, the extended term to file claim was till the approval or resolution plan by the committee of creditors. The said time limit was curtailed and restricted to 90 days from the insolvency commencement date, vide the said amendment of 2018. Therefore, regulation fixes the outer limit for filing of the claim if it is filed after delay. This in fact curtails the power to further condone the delay or to further extend the time. If the delay in the present case is condoned then the same will nullify the amendment made to Regulation 12(2). (viii) Although the Adjudicating Authority took note of the judgment of the Hon'ble Appellate Tribunal in the matter of Office of the Asst. State Tax Commissioner State Tax, Department, Government of Maharashtra Vs. Shri Parthiv Parikh Reso....
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....te logical to say that these actions have to be taken Company Appeal (AT) (Ins) No. 583 of 2020 Page 12 of 17 with alacrity so that the successful Resolution Applicant, if any, can take the reins of the management of the Corporate Debtor in good time for its proper management and consequent revival..... ..... 15. Thus, it is clear that much water had flown under the bridge from the date of issue of public notice (on 02.11.2018) and the extended time 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 and the Resolution Plan as approved by the COC was submitted to the Adjudicating Authority for necessary approval under Section 30. Any interruption in the CIR Process at this stage by including a delayed claim/s would have meant setting the clock back and sending matter back to COC & RP. It cannot be ruled out that if the claim of the Operational Creditor State Tax Department, Government of Maharashtra was accepted at such a late stage, there could have been other such applicants too, who would have demanded accommodation on the same ground allowing late submi....
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....able with him. (2) The interim resolution professional or the resolution professional, as the case may be, shall revise the amounts of claims admitted, including the estimates of claims made under sub-regulation (1), as soon as may be practicable, when he comes across additional information warranting such revision." (x) It was also pointed out by the Appellant that the Hon'ble Supreme Court Judgment in the case of Ghanashyam Mishra and Sons Pvt. Ltd. Through the Authorized Signatory Vs. Edelweiss Asset Reconstruction Company Limited through the Director & Ors. Civil Appeal No. 8129 of 2019 which has no Application in the present case and the Judgment specifically deals with the issue that the claims which were not part of the CIRP cannot be recovered at a belated stage. It has also not decided the issue of condonation of delay, as it was not even the issue before the Hon'ble Apex Court. The judgment only deals with the issue in respect of the claim arising pre-CIRP and not during CIRP Period. (xi) The claimant has filed first claim (Form B) of Rs. 1,05,71,482.26/- on 13.01.2021 appearing at Pg. No. 10 of the Additional Document filed by the Appellant vide diary no. 4....
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....ct. It was also stated by the R3 that the Adjudicating Authority has violated the principle of natural justice as it has not been heard whereas its stake is high in the present case. They have also stated that the annexure attached to the claim form of R1 in IA No. 1511 of 2021 as stated above in which the Adjudicating Authority has passed the order was without annexure of the claim. The claim is not falling within the definition of Insolvency Resolution Process cost as provided under Section 5(13)(e) r/w related regulations. It has also alleged that Corporate Debtor was not paying the alleged rent prior to CIRP commencement and if the Master Lease Agreement has expired, Moratorium does not prohibit to repossess the goods in terms of the Clause 17 of the Master Lease Agreement. The claim of the R1 is purely in the nature of damages/compensation which first necessarily requires adjudication before allowing a single penny out of that. They have also stated that the original claim filed on 13.01.2021 by R1 for a sum of Rs. 1.05 Crore includes an amount of Rs. 43,54,502.92 for market value of the Leased Equipment which amount has again been included in the claim of Rs. 3.14 Crore, whic....
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....ntal. It is also stated by the Ld. counsel for the R1 that the CIRP costs are dynamic and can never be fixed or static as their costs incurred to the CD as a going concern. They have also stated that these lease goods/services are required to keep the business of the CD as a going concern during CIRP period and have cited Section 5(13), Section 14(2) & 2(a), Section 20, Section 25, Section 30(2) of the I& B Code and also referred to Regulation 31 & 32 of the related CIRP regulations to supplement their stand that the order passed by the Adjudicating Authority is in order. They have also cited the judgment of this Tribunal of M V Projects Vs. Divya Jyoti Sponge Iron Pvt. Ltd. & Ors holding that if a supplier has supplied the goods during the period of the CIRP to keep the company as a going concern, "It was the duty of the RP to include such cost towards Resolution Process Cost for payment in favour of Appellant for non-inclusion of the same, it can be held that the 'Resolution Plan' in question is in violation of Section 30(2) (a) of the I& B Code." 12. The Ld counsel for the R1 has further stated that the RP/Appellant cannot avoid payments to R1 due to lack of invoices. T....
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....proved by the committee." 20. As per Regulation 31 Insolvency Resolution Process costs under Section 5(13) (e) mean defined in clause (a) to (e). for the present case, Regulation 31 (b) is relevant which provides that amounts due to a person whose rights are prejudicially affected on account of the moratorium imposed under Section 14(1) (d). Due to moratorium period the lessor could not recover the possession of the property from the Corporate Debtor. Thus, the right of lessor to recover rent are affected on account of moratorium. Therefore, the lessor is entitled to recover the rent and which shall include in CIRP costs. 21. Thus, we find no substance in the argument that the rent cannot be included in the CIRP costs." * M V Projects Vs. Divya Jyoti Sponge Iron Pvt. Ltd. &Ors., NCLAT CA(AT) (Ins) No. 481 of 2018 held at para 25: "In view of the aforesaid provision, if the Appellant has supplied the goods during the period of the 'Corporate Insolvency Resolution Process' to keep the company as a going concern, it was the duty of the 'Resolution Professional' to include such cost towards 'Resolution Process Cost' for payment in favour of Appellant for....
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.... application of the appellant for the payment of fees, observed that the Insolvency and Bankruptcy Board of India ("IBBI") is the competent authority to deal with allegations against the RP relating to their failure to discharge statutory duties (para 8). Section 217 of the IBC empowers a person aggrieved by the functioning of an RP to file a complaint to the IBBI. If the IBBI believes on the receipt of the complaint that any RP has contravened the provisions of IBC, or the rules, regulations or directions issued by the IBBI, it can, under Section 218 of the IBC, direct an inspection or investigation. Under Section 220 of the IBC, IBBI can constitute a disciplinary committee to consider the report submitted by the investigating authority. If the disciplinary committee is satisfied that sufficient cause exists, it can impose a penalty. The availability of a grievance redressal mechanism under the IBC against an insolvency professional does not divest the NCLT of its jurisdiction under Section 60(5)(c) of the IBC to consider the amount payable to the appellant. In any event, the purpose of such a grievance redressal mechanism is to penalize errant conduct of the RP and not to determi....
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....bmitted by creditors to him, pursuant to the public announcement made under Sections 13 and 15; (c) constitute a committee of creditors; (d) monitor the assets of the corporate debtor and manage its operations until a resolution professional is appointed by the committee of creditors; (e) file information collected with the information utility, if necessary; and (f) take control and custody of any asset over which the corporate debtor has ownership rights as recorded in the balance sheet of the corporate debtor, or with information utility or the depository of securities or any other registry that records the ownership of assets including- (i) assets over which the corporate debtor has ownership rights which may be located in a foreign country; (ii) assets that may or may not be in possession of the corporate debtor; (iii) tangible assets, whether movable or immovable; (iv) intangible assets including intellectual property; (v) securities including shares held in any subsidiary of the corporate debtor, financial instruments, insurance policies; (vi) assets subject to the determination of ownership by a court or authority; (g) to perform such other duties as ma....
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....e debtor; (c) displayed on the website, if any, of the corporate debtor; (d) filed with the Adjudicating Authority; and (e) presented at the first meeting of the committee. 14. Determination of amount of claim.-(1) Where the amount claimed by a creditor is not precise due to any contingency or other reason, the interim resolution professional or the resolution professional, as the case may be, shall make the best estimate of the amount of the claim based on the information available with him. (2) The interim resolution professional or the resolution professional, as the case may be, shall revise the amounts of claims admitted, including the estimates of claims made under sub-regulation (1), as soon as may be practicable, when he comes across additional information warranting such revision.' It is clear from a reading of these Regulations that the resolution professional is given administrative as opposed to quasi-judicial powers. In fact, even when the resolution professional is to make a 'determination' under Regulation 35A, he is only to apply to the Adjudicating Authority for appropriate relief based on the determination made as follows: '35A. Prefere....
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.... well as CoC. In the negotiations that may be held between CoC and the resolution applicant, various modifications may be made so as to ensure, that while paying part of the dues of financial creditors as well as operational creditors and other stakeholders, the Corporate Debtor is revived and is made an ongoing concern. After CoC approves the plan, the Adjudicating Authority is required to arrive at a subjective satisfaction, that the plan conforms to the requirements as are provided in sub-section (2) of Section 30 of the I&B Code. Only thereafter, the Adjudicating Authority can grant its approval to the plan. It is at this stage, that the plan becomes binding on Corporate Debtor, its employees, members, creditors, guarantors and other stakeholders involved in the resolution Plan. The legislative intent behind this is, to freeze all the claims so that the resolution applicant starts on a clean slate and is not flung with any surprise claims. If that is permitted, the very calculations on the basis of which the resolution applicant submits its plans, would go haywire and the plan would be unworkable." * Rajendra Kumar Bhutta Vs. Mhada & Anr. (2020) 13 SCC 208 held at para 25: ....
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.... 2016. * Gujarat Urja Vikas Nigam Limited Vs. Amit gupta & Ors. in Civil Appeal No. 9241 of 2019 held at para 69 to 72: "69. The institutional framework under the IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora. In the absence of a court exercising exclusive jurisdiction over matters relating to insolvency, the corporate debtor would have to file and/or defend multiple proceedings in different fora. These proceedings may cause undue delay in the insolvency resolution process due to multiple proceedings in trial courts and courts of appeal. A delay in completion of the insolvency proceedings would diminish the value of the debtor's assets and hamper the prospects of a successful reorganization or liquidation. For the success of an insolvency regime, it is necessary that insolvency proceedings are dealt with in a timely, effective and efficient manner. Pursuing this theme in Innovative (supra) this court observed that 'one of the important objectives of the Code is to bring the insolvency law in India under a single unified umbrella with the object of speeding up of the insolvency....
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....ground of insolvency, since the event of default contemplated under Article 9.2.1(e) was the commencement of insolvency proceedings against the Corporate Debtor. In the absence of the insolvency of the Corporate Debtor, there would be no ground to terminate the PPA. The termination is not on a ground independent of the insolvency. The present dispute solely arises out of and relates to the insolvency of the Corporate Debtor. 72. Ms Ramachandran and Mr. Diwan have contended that CA 1956, PIA and BRA do not contain any provisions equivalent to Sections 25(2)(b) and 18(f)(vi) of the IBC which empower the RP to exercise rights for the benefit of the Corporate Debtor in certain adjudicatory proceedings. They submit that Section 60(5)(c) of the IBC must be read in consonance with Sections 25(2)(b) and 18(f)(iv), which would be rendered nugatory if NCLT becomes the exclusive forum for the enforcement of all the Corporate Debtor's rights. Section 25(2)(b) of the IBC provides: Section 25 - Duties of resolution professional (2) For the purposes of sub-section (1), the resolution professional shall undertake the following actions, namely:- .... (b) represent and act on behalf of t....
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....ng absurd results. (It will be a different matter, if proceedings under statutes like Income Tax Act had attained finality, fastening a liability upon the corporate debtor, since, in such cases, the dues payable to the Government would come within the meaning of the expression "operational debt" under Section 5(21), making the Government an "operational creditor" in terms of Section 5(20). The moment the dues to the Government are crystalised and what remains is only payment, the claim of the Government will have to be adjudicated and paid only in a manner prescribed in the resolution plan as approved by the Adjudicating Authority, namely the NCLT.) 38. It was argued by all the learned Senior Counsel on the side of the appellants that an Interim Resolution Professional is duty bound under Section 20(1) to preserve the value of the property of the Corporate Debtor and that the word "property" is interpreted in Section 3(27) to include even actionable claims as well as every description of interest, present or future or vested or contingent interest arising out of or incidental to property and that therefore the Interim Resolution Professional is entitled to move the NCLT for appro....
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....ium period. (2A) Where the interim resolution professional or resolution professional, as the case may be, considers the supply of goods or services critical to protect and preserve the value of the corporate debtor and manage the operations of such corporate debtor as a going concern, then the supply of such goods or services shall not be terminated, suspended or interrupted during the period of moratorium, except where such corporate debtor has not paid dues arising from such supply during the moratorium period or in such circumstances as may be specified. (3) The provisions of sub-section (1) shall not apply to- (a) such transactions, agreements or other arrangements as may be notified by the Central Government in consultation with any financial sector regulator or any other authority; (b) a surety in a contract of guarantee to a corporate debtor. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31....
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....llant had on multiple instances communicated to the Corporate Debtor that there were deficiencies in its services. The Corporate Debtor was put on notice that the penalty and termination clauses of the Facilities Agreement may be invoked. This is evident from the appellant's communications dated 1 August 2018, 17 September 2018, 1 October 2018 and 11 October 2018. In its email dated 13 October 2018 the appellant specifically noted that the housekeeping staff being provided by the Corporate Debtor was inadequate. The appellant was apparently constrained to deploy its own staff for housekeeping, evinced from its email dated 19 November 2018. The Corporate Debtor has admitted that the appellant was using its own housekeeping staff and deducting the costs from the invoice. The appellant again intimated the Corporate Debtor to change faulty batteries of the UPS and provide cleaning products in its email dated 3 February 2019. The termination notice dated 10 June 2019 also clearly lays down the deficiencies in the services of the Corporate Debtor. The termination notice enumerated the following deficiencies: "1. Not maintaining the minimum level of skill set of personal on exam and....
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....d we are having the following observations:- a. It is not in dispute that the CIRP of the Corporate Debtor was initiated vide impugned order dated 18th March, 2020 passed by the 'Adjudicating Authority' and the 'Resolution Professional' of the Corporate Debtor is the Appellant in the Appeal. b. It is also not in dispute that the 'Resolution Professional' was confirmed by the members of the CoC and made public announcement on 13th August, 2020 and have asked the creditors to submit their claims with proof on or before 25th August, 2020. It is the fact of the case that even 90 days time period for filing of claim as stipulated in the CIRP Regulations expired on 09th November, 2020. c. The Respondent No. 1 has submitted originally its claim as 'Financial Creditor' on 17th November, 2020 and submitted the revised claim as 'Operational Creditor', as suggested by the 'Resolution Professional' on 13th January, 2021 with the amount of claim of Rs. 1.05 Crore which includes Rs. 10,52,940.05 towards lease rental dues & Rs. 43,54,502.92 towards fair market value of assets (page 19 of the written submission of the Appellant); out of which t....
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....tioned in the Lease Summary Schedule or the expiry of renewed term or on the date of termination of this agreement etc. Clause 16 & 17 of the Agreement involving event of default and consequences event of default are enumerated hereunder: i. It is also pointed out that the entire claim of Rs. 3.14 crore if divided into two parts and the same will reflect as follows: "i. Claim towards Fair Market Value - Rs. 43.54 lacs. ii. Claim towards Extension rental - 2.71 crore." j. It is very much clear from the details available at page 19 of the written submission of the Resolution Professional as also at page 4(r) Rs. 43.54 lacs claim towards fair market value is already admitted in the figure of Rs. 95 lacs of the admitted claim and how again the same figure can be included in additional claim. Hence, it is erroneously claimed amount and, therefore, the Adjudicating Authority has committed an error towards directing payment again for release of the same amount. k. The balance amount claim of Rs. 2.71 crore is towards extension rental claim. Now the question comes here if Fair Market Value of the Equipment has already been claimed then how additionally these extension rental clai....
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.... of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. [Explanation.-For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a license, permit, registration, quota, concession, clearances or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registration, quota, concession, clearances or a similar grant or right during the moratorium period;] ....
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.... the creditors whose debt is secured over such encumbered property: Provided that no prior consent of the creditor shall be required where the value of such property is not less than the amount equivalent to twice the amount of the debt. (d) to issue instructions to personnel of the corporate debtor as may be necessary for keeping the corporate debtor as a going concern; and (e) to take all such actions as are necessary to keep the corporate debtor as a going concern." "Section 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 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....
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....tion in accordance with the provisions of this clause shall be fair and equitable to such creditors. Explanation 2. - For the purpose of this clause, it is hereby declared that on and from the date of commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2019, the provisions of this clause shall also apply to the corporate insolvency resolution process of a corporate debtor- (i) where a resolution plan has not been approved or rejected by the Adjudicating Authority; (ii) where an appeal has been preferred under section 61 or section 62 or such an appeal is not time barred under any provision of law for the time being in force; or (iii) where a legal proceeding has been initiated in any court against the decision of the Adjudicating Authority in respect of a resolution plan;] (c) provides for the management of the affairs of the Corporate debtor after approval of the resolution plan; (d) the implementation and supervision of the resolution plan; (e) does not contravene any of the provisions of the law for the time being in force; (f) conforms to such other requirements as may be specified by the Board. [Explanation. - For the purposes of clause (e), i....
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.... of the applicant is considered: Provided that the resolution applicant shall not have a right to vote at the meeting of the committee of creditors unless such resolution applicant is also a financial creditor. (6) The resolution professional shall submit the resolution plan as approved by the committee of creditors to the Adjudicating Authority." CHAPTER IX of IBBI CORPORATE Insolvency RESOLUTION PROCESS, REGULATION 2016 ON INSOLVENCY RESOLUTION PROCESS COSTS 31. Insolvency resolution process costs. "Insolvency resolution process costs" under Section 5(13)(e) shall mean- (a) amounts due to suppliers of essential goods and services under Regulation 32; (b) amounts due to a person whose rights are prejudicially affected on account of the moratorium imposed under section 14(1)(d); (c) expenses incurred on or by the interim resolution professional to the extent ratified under Regulation 33; (d) expenses incurred on or by the resolution professional fixed under Regulation 34; and (e) other costs directly relating to the corporate insolvency resolution process and approved by the committee. 32. Essential supplies. The essential goods and services referred to in s....
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....pired by June, 2020 prior to public announcement which was made on 13th August, 2020 asking the creditors to submit their claims and the Respondent No. 1 has already submitted its claim 13th January, 2021 of Rs. 1.05 Crore approx., which included Rs. 11 lacs approx. towards lease rental dues and claim towards Fair Market Value - Rs. 43.54 lacs. The Resolution Professional has already considered Rs. 95 lac in total out of Rs. 1.05 Crore. Hence, we are not in a position to accept even the claim towards extension rental of Rs. 2.71 Crore. n. Now let us review the citations submitted by the Ld. Counsel for the Respondent No. 1; * M V Projects Vs. Divya Jyoti Sponge Iron Pvt. Ltd. & Ors., NCLAT CA(AT) (Ins) No. 481 of 2018; We agree that Resolution Process costs has to be included in the plan and based on input available with the Resolution Professional, the RP has admitted the claim based on input provided by the Respondent No. 1 even after lapse of 90 days after the due date submission of the claim by the Respondent No. 1 (i.e. 13th January, 2021) of Rs. 95 lacs out of Rs. 1.05 Crore approx. It is also very much clear that the Corporate Debtor has not derived any income from thes....