TaxTMI 
TaxTMI 
2023 (6) TMI 547
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....5 / 2022 in CP (IB) No. 58 / 9 / AMR / 2021 (Filed by the 'Petitioner'), under Section 60 (5) of the Insolvency and Bankruptcy Code, 2016, r/w. Rule 11 of the NCLT Rules, 2016, wherein, at Paragraphs 12 to 15, had observed the following: 12. "Even viewed from the logical point of view when the IBC only mandates that the RP shall collect and collate the claims and when a dispute is pending with regard to the amount due and the interest, the RP cannot admit the claim. If the RP admits the claim for a particular amount and later on if the Arbitral Tribunal decides otherwise it would result in conflicting judgments. No doubt the IBC under Section 3(6) of the Code defines claim as a right to payment whether or not such right is reduced to judgment fixed, disputed, undisputed etc. A Judgment of the Hon'ble Supreme Court which is relied upon by the Applicant's Counsel in Pioneer Urban Land and Infrastructure Limited Vs. Union of India reported in (2019) 8 SCC 416, no doubt held that claim can be made whether or not such right to payment is reduced to judgment and a debt is a liability or obligation in respect of a right to payment even it arises out of breach of contract, which i....
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....in its counter. Though a set off is not pleaded, when counter claim is admitted, the amount due from the claimant would get set off. 15. As regards the contention that there is no concept of keeping the claims in abeyance, this court is not in agreement as there need not be a specific provision for keeping the claims in abeyance. In the given circumstances if such exigency is necessary it can be invoked. There are instances where the RP has kept the claims in abeyance for various reasons. One such instance can be seen in the judgment of the National Company Law Appellate Tribunal, New Delhi in Company Appeal (AT) (INS) No.871-872/2019 between Santosh Wasantrao Waloker Vs. Vijay Kumar V Iyer and others, wherein the RP kept the claim filed by the Appellant in abeyance pending verification of the documents. In the case of Anamika Singh and others Vs. Shinhan Bank and others decided by the National Company Law Appellate Tribunal, New Delhi also it can be seen that the claims were kept in abeyance by the RP as the claims of the interest therein were not accepted by the RP. Hence, in view of the above this Tribunal is of the opinion that since, the claim of the Applicant is coll....
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.... that the 'Appellant / Petitioner', filed the IA (IBC) No. 155 / 2022 in CP (IB) No. 58 / 9 / AMR / 2021, before the 'Adjudicating Authority' / 'Tribunal', among other things, seeking directions, being issued to the 'Resolution Professional', to admit the 'Appellant' / 'Petitioner's Financial Claim', to revise and update the 'List of Creditors' and to admit the 'Appellant', to the 'Committee of Creditors' ('CoC'), with voting right proportionate to its 'Claim'. In fact, the 'Adjudicating Authority' / 'Tribunal', had 'dismissed', the IA (IBC) No. 155 / 2022 in CP (IB) No. 58 / 9 / AMR / 2021, inter alia, on the ground that the 'Resolution Professional', was justified, in keeping the 'Claim', in 'abeyance', because of the pending 'Arbitration Proceedings', and the 'counterclaim' of the 'Corporate Debtor'. 8. The Learned Counsel for the Appellant contends that the 'Adjudicating Authority' / 'Tribunal', had failed to appreciate that the 'Appellant's Financial Claim', is an 'admitted' and 'acknowledged liability'. 9. It is projected on the side of the Appellant that the 'Appellant's Financial Claim', is a Sum i.e. presently 'Due and Payable', and further that the Resolution Profes....
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.... of the contract between the parties. Now, it is true that the damages which are claimed are liquidated damages under Clause 14, but so far as the law in India is concerned, there is no qualitative difference in the nature of the claim whether it be for liquidated damages or for unliquidated damages. Sec. 74 of the Indian Contract Act eliminates the some-what elaborate refinements made under the English common law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the common law a genuine pre-estimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties : a stipulation in a contract in terrorem is a penalty and the Court refuses to enforce it, awarding to aggrieved party only reasonable compensation. The Indian Legislature has sought to cut across the web of rules and presumptions under the English common law, by enacting a uniform principle applicable to all stipulations naming amounts to be paid in case of breach, and stipulations by way of penalty, and according to this principle, even if there is a stipulation by way of liquidated dam....
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....e other party to the contract who complains of the breach has any amount due to him from the other party. As already stated, the only right which he has is the right to go to a Court of law and recover damages. Now, damages are the compensation which a Court of law gives to a party for the injury which he has sustained. But, and this is most important to note, he does not get damages or compensation by reason of any existing obligation on the part of the person who has committed the breach. He gets compensation as a result of the fiat of the Court. Therefore, no pecuniary liability arises till the Court has determined that the party complaining of the breach is entitled to damages. Therefore, when damages are assessed, it would not be true to say that what the Court is doing is ascertaining a pecuniary liability which already existed. The Court in the first place must decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is no liability at all upon the defendant. This statement in our view represents the correct legal position and has our full concurrence. A claim for damages for breach of cont....
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.... the 'Resolution Professional' had no jurisdiction to "determine" the claim as pleaded in the Appeal. He could have only "collated" the claim, based on evidence and the record of the 'Corporate Debtor' or as filed by Jonathan Mouralidarane ('Financial Creditor'). If an aggrieved person thereof moves before the Adjudicating Authority and the Adjudicating Authority after going through all the records, comes to a definite conclusion that certain claimed amount is payable, the 'Resolution Professional' should not have moved in Appeal, as in any manner, he will not be affected." 20. The Learned Counsel for the Appellant, while summing up, points out that there is no provision under I & B Code, 2016, or 'Corporate Insolvency Resolution Process Regulations', empowering the 'Respondents', to keep a 'Claim', under 'abeyance', and because of the fact that the 'Respondent / Corporate Debtor', had not denied the 'Debt', as well as 'Default', and prays for 'allowing' of the instant 'Appeal', for meeting the 'ends of Justice'. Appellant's Citations: 21. The Learned Counsel for the Appellant, cites the decision of the Hon'ble Supreme Court of India, in Inn....
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....solution professional as follows: 18. Duties of interim resolution professional.-(1) The interim resolution professional shall perform the following duties, namely- (a) collect all information relating to the assets, finances and operations of the corporate debtor for determining the financial position of the corporate debtor, including information relating to- (i) business operations for the previous two years; (ii) financial and operational payments for the previous two years; (iii) list of assets and liabilities as on the initiation date; and (iv) such other matters as may be specified; (b) receive and collate all the claims submitted 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 r....
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....te of admission of such claim: Provided that such inclusion shall not affect the validity of any decision taken by the committee prior to such inclusion. 13. Verification of claims.-(1) 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. (2) The list of creditors shall be - (a) available for inspection by the persons who submitted proofs of claim; (b) available for inspection by members, partners, directors and guarantors of the corporate 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 cont....
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....ch Limited, 2020 SCC Online NCLT 7674, wherein, at Paragraph 22, it is observed as under: 22. "In the reply the Liquidator stated that there must be a decree of civil court or an award passed by the Arbitrator determining the damages. It is the case of the Liquidator that a party which claims damages for non-performance of contract shall, at the first instance, get the damages determined either by civil court or by Arbitrator. Till then, it is a mere right to sue for damages. In this connection the Liquidator relied on decision of the Hon'ble Apex Court in the matter of Union of India v. Raman Iron Foundry, (1974) 2 SCC 231 : AIR 1974 SC 1265. It is true that damages for breach of contract is not a debt unless determined by civil court or Arbitrator. In this case, there is no decree in favour of the applicant determining the damages by civil court or award by Arbitrator determining damages. So this issue cannot be resolved by the Liquidator. The applicant has not so far obtained decree or award against the Corporate Debtor, with regard to damages suffered on account of failure to perform the contract." 27. The Learned Counsel for the Appellant, seeks in aid of the decis....
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....of the 'Debt', is covered by the 'Guarantee', furnished by the 'Promoters of the Corporate Debtor', and its 'Related Party' (Viz. Scarpe Marketing Private Limited). 32. It is represented on behalf of the Appellant that despite the baseless 'Claim' of the 'Interim Resolution Professional', that 'no proof', was attached in regard to the 'Existence of Debt', the 'Appellant / Petitioner', had resubmitted the relevant documents, and submit further 'clarification' and 'information', in their 'Reply', to the letter of the 'IRP', dated 8th December 2021, so as to facilitate the process of collation of claims, as undertaken by the 'Resolution Professional'. 33. Furthermore, the 'Interim Resolution Professional', by denying the 'Appellant's Claim', deprived it of its place, in the 'Committee of Creditors', which, it is entitled to, as a 'Financial Creditor', and this has caused, an 'irreparable harm', to the 'Appellant'. 34. Before the 'Adjudicating Authority', the 'Respondent / Resolution Professional' of the 'Corporate Debtor', in the 'Counter' to IA (IBC) No. 155 / 2022 in CP (IB) No. 58 / 9 / AMR / 2021, had mentioned that only after the 'Respondent', came to know that there is ....