TaxTMI 
TaxTMI 
2023 (3) TMI 648
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....: Justice Rakesh Kumar Jain : One Jayanta Kumar Panja, an ex-employee of Fort Gloster Industries Limited (Corporate Debtor) filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') for initiation of the Corporate Insolvency Resolution Process on account of default in payment of Rs.1,13,946/- towards his gratuity. The said application bearing CP (IB) No. 61/KB/2018 was admitted by the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench, Kolkata) on 09.08.2018. Manish Jain was appointed as the Interim Resolution Professional (IRP) who was replaced by Bijay Murmuria as the Resolution Professional (RP) in the second meeting of Committee of Creditors (CoC) held on 04.12.2018. 2. The RP published form-G on 05.02.2019 in financial express (English) and in Aajkaal (Bengali) for the purpose of inviting Expression of Interests (EOIs) in which the last date for submission of EOIs was 20.02.2019. The RP received EOI from two Prospective Resolution Applicants (PRAs) on 20.02.2019 i.e. Prudent ARC Limited and Gloster Limited. In the meanwhile, M/s Hooghly Infrastructure Pvt. Ltd. also filed an application towards EOI. The said appl....
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....hat a direction may be issued to ensure payment regarding gratuity and leave liability of left employee's (retired/resigned/death and vrs) up to 31.08.2018 which was attached as Annexure B with the application. It is alleged that though the RP was informed about the claim of the workers vide letter dated 11.03.2019 (Annexure A4) but he refused to respond to the letter. It is alleged that the Appellants are entitled to an amount of Rs. 60,22,33,718/- but amount admitted, as per the website of the Corporate Debtor, shows the claim of the workmen to the tune of Rs. 89,28,667/-. The Adjudicating Authority has found that the claims of 11 employees were received by the RP within the stipulated period which comes to 0.89 Crore and the RP also admitted the claims of the four workmen, who submitted their claims beyond 90 days, to the tune of Rs. 0.41 Crore and the resolution plan provided allocation of the entire amount to the said workmen. The claim of the four workmen which were submitted beyond 90 days was including the claim of one Apurba Ghorui to the tune of Rs. 0.22 Crore. It has also been observed that the total dues due to the workmen/employees, borne out from the financial stateme....
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....of the liquidation and cannot be utilised for distribution amongst other stakeholders" 6. It is also submitted that similarly situated employees were discriminated in as much as claims of 11 employees has been satisfied by the RP and nothing has been kept in the plan for the present Appellants (employees who are mentioned in the list Annexure B). 7. On the other hand, Counsel for Respondent No. 2 (SRA) has submitted that the application of the Appellant has rightly been dismissed by the Adjudicating Authority observing that "unions come forward with an evasive claim. None of the objections seen substantiated with supporting materials". In this regard, it is submitted that a procedure is prescribed in chapter IV 'proof of claims' of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (in short 'Regulations'). He has referred to Regulation 9 of the Regulations pertaining to the claims by workmen/employees to contend that the claim by a workman or an employee of the Corporate Debtor has to be filed in Form-D appended with the schedule and where there are dues are of numerous workmen or employees of the Corporate De....
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....st Annexure B was ever supplied by the Appellants to the RP who has said so in Para 7 of his affidavit filed before the Adjudicating Authority to the application filed by the Appellants. Para 7 is reproduced as under:- "7. With reference to the statements made in paragraph 3 of the said application I deny that the workers' claim on diverse heads as received by the RP in course of the CIRP aggregates to a sum of Rs. 60,22,33,718/- as alleged or at all. I say that the basis for such claim appears to be a chart appearing as Annexure-B to the said application appearing at Pg. 12 thereof. I say that there is no basis to such claim or figures mentioned therein. In any event I say that no such claim was ever lodged before the RP in response to the invitation of claims made by the RP. I say that the purported head of claim in the table appearing in paragraph 3 of the said application is equally baseless. I say that no such claim was lodged before the RP at any point of time. I thus deny and dispute that a sum of Rs. 60,22,33,718/- can be said to be the sum which is now due and payable by the CD to any workers under any head as alleged or at all." 8. Counsel appearing on behalf ....
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.... as various office bearers of the trade unions had put up their claim with proof in order to recover the said amount as has been done by 11 other employees of the same Corporate Debtor who had filed their applications in accordance with Regulations? 11. It has been repeatedly held that IBC is a complete code in itself. Various Regulations have been made in terms of various provisions of the Code in which Regulations have also been made which came into force w.e.f. 01.12.2016. Chapter IV of the Regulations, dedicated to the proof of claims, of various class of creditors in which Regulation 9 is related to the claims of the workmen/employees. The said Regulation is reproduced as under:- "9. Claims by workmen and employees. (1) A person claiming to be a workman or an employee of the corporate debtor shall submit [claim with proof] to the interim resolution professional in person, by post or by electronic means in Form D of the Schedule: Provided that such person may submit supplementary documents or clarifications in support of the claim, on his own or if required by the interim resolution professional, before the constitution of the committee. (....
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.... PASSPORT, THE IDENTITY CARD ISSUED BY THE ELECTION COMMISSION OF INDIA OR AADHAAR CARD OF WORKMAN / EMPLOYEE 3. ADDRESS AND EMAIL ADDRESS (IF ANY) OF WORKMAN / EMPLOYEE FOR CORRESPONDENCE 4. TOTAL AMOUNT OF CLAIM (INCLUDING ANY INTEREST AS AT THE INSOLVENCY COMMENCEMENT DATE) 5. DETAILS OF DOCUMENTS BY REFERENCE TO WHICH THE CLAIMCAN BE SUBSTANTIATED. 6. DETAILS OF ANY DISPUTE AS WELL AS THE RECORD OF PENDENCY OR ORDER OF SUIT OR ARBITRATION PROCEEDINGS 7. DETAILS OF HOW AND WHEN CLAIM AROSE 8. DETAILS OF ANY MUTUAL CREDIT, MUTUAL DEBTS, OR OTHER MUTUAL DEALINGS BETWEEN THE CORPORATE DEBTOR AND THE CREDITOR WHICH MAY BE SET-OFF AGAINST THE CLAIM 9. DETAILS OF THE BANK ACCOUNT TO WHICH THE AMOUNT OF THE CLAIM OR ANY PART THEREOF CAN BE TRANSFERRED PURSUANT TO A RESOLUTION PLAN 10. LIST OF DOCUMENTS ATTACHED TO THIS PROOF OF CLAIM IN ORDER TO PROVE THE EXISTENCE AND NON-PAYMENT OF CLAIM DUE TO THE OPERATIONAL CREDITOR Signature of workman / employee or person authorised to act on his behalf [Please enclose the authority if this is being submitted on behalf of an operational creditor] Name in BLOCK LETTERS Position with or in relation to creditor Addr....
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....PLOYEES (Under Regulation 9 of the Insolvency and Bankruptcy (Insolvency Resolution Process for Corporate Persons) Regulations, 2016) [Date..................] To The Interim Resolution Professional / Resolution Professional, [Name of the Insolvency Resolution Professional / Resolution Professional] [Address as set out in public announcement] From [Name and address of the duly authorised representative of the workmen / employees] Subject: Submission of proofs of claim. Madam/Sir, I, [name of authorised representative of the workmen / employees], currently residing at [address of authorised representative of the workmen / employees], on behalf of the workmen and employees employed by the above named corporate debtor and listed in Annexure A, solemnly affirm and say: 1. That the above named corporate debtor was, at the insolvency commencement date, being the ________ day of ______ 20 ___, justly truly indebted to the several persons whose names, addresses, and descriptions appear in the Annexure A below in amounts severally set against their names in such Annexure A for wages, remunerati....
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.... had or received any manner of satisfaction or security whatsoever, save and except the following: [Please state details of any mutual credit, mutual debts, or other mutual dealings between the corporate debtor and the creditor which may be set - off against the claim]. Date: .............. Place: .............. ...................................... (Signature of the claimant) VERIFICATION I, [Name] the claimant hereinabove, do hereby verify that the contents of this proof of claim are true and correct to my knowledge and belief and no material fact has been concealed therefrom. Verified at ... on this ...... day of .........., 20... ........................................ (Signature of the claimant)] 14. A close reading of Regulation 9(2) of the Regulations says that where there are dues to be paid to the workmen or employees of the Corporate Debtor, they may collectively choose an authorised representative to submit their claim with proof but in Form-E of the Schedule. The word used in Regulation 9(2) of the Regulations is 'may' as against 'shall' in Regulation 9(1) of the Regulations w....