TaxTMI 
TaxTMI 
2024 (2) TMI 1091
X X X X Extracts X X X X
X X X X Extracts X X X X
....Authority. 2. The case of the Appellant in Company Appeal (AT) (Insolvency) No. 192 of 2024 is that Appellant No.2 has advanced money to D.S. Kulkarni Co. in 2015. It is submitted that the Directors/ Members/ Partners/ Shareholders of the D.S. Kulkarni Co. were the same as of Corporate Debtor. In 2017, Corporate Debtor decided to take over D.S. Kulkarni Co.'s liabilities and adjusted Appellant No.2's loan through a registered Agreement dated 30.06.2017. A Tripartite Agreement was executed, involving the Corporate Debtor, Appellants and DSK Global Education for the purchase of a flat, reflecting payments in journal entry and ledger. The Corporate Insolvency Resolution Process ("CIRP") commenced against the Corporate Debtor on 30.09.2019, to which the Appellants were unaware. The Appellants after coming to know about CIRP filed their claim on 29.03.2023 in Form-CA. The Resolution Professional ("RP") vide email dated 03.04.2023 informed the Appellants that the Committee of Creditors ("CoC") has already approved the Resolution Plan in case of Corporate Debtor on 13.08.2021, hence, the claim of the Appellants cannot be considered. The Appellant filed IA No.2114 of 2023 praying for co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s taken the liabilities of D.S. Kulkarni Co. and an Agreement between the Corporate Debtor and the Appellants was also executed in 2017, which was duly registered, the Corporate Debtor is bound to honour the agreement. The Appellant being unaware of the CIRP, could not file the claim. The learned Counsel for the Appellants relied on the judgment of its Tribunal in Puneet Kaur, through her Attorney Amrit Pal Singh vs K V Developers Private Limited Company Appeal (AT) (Insolvency) No. 390 of 2022. 6. The learned Counsel for the RP refuting the submissions of learned Counsel for the Appellants submits that the CIRP commenced against the Corporate Debtor on 26.09.2019. The public announcement was made on 30.09.2019 and List of Creditors was issued on 09.08.2021. On 13.08.2021, the Resolution Plan was approved by the CoC. The RP has filed an IA No.1950 of 2021 on 24.08.2021 for approval of the Resolution Plan, in which Application, orders were reserved on 22.02.2023. The claims were filed by the Appellant on 29.03.2023, which rightly has not been admitted. The Resolution Plan having been approved by the CoC on 13.08.2021, no new claim can be admitted. It is submitted that the judgmen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... an appropriate forum in terms of Section 60(6) of the Code, also militates against the rationale of Section 31 of the Code. A successful resolution applicant cannot suddenly be faced with "undecided" claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution applicant does on a fresh slate, as has been pointed out by us hereinabove. For these reasons, the NCLAT judgment must also be set aside on this count. 35. With the aforesaid we are of view that the Ld. Adjudicating Authority has erroneously directed the RP to consider the claim of the Respondent which is apparently filed after a delay of 287 days, before that the CoC has already approved the Resolution Plan. Thus, the impugned order is not sustainabl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....plea of not being aware of newspaper pronouncements is not one which should be available to a commercial party. 23. The mere fact that the adjudicating authority has yet not approved the plan does not imply that the plan can go back and forth, thereby making the CIRP an endless process. This would result in the reopening of the whole issue, particularly as there may be other similar persons who may jump onto the bandwagon. As described above, in Essar Steel [Essar Steel (India) Ltd. (CoC) v. Satish Kumar Gupta, (2020) 8 SCC 531 : (2021) 2 SCC (Civ) 443] , the Court cautioned against allowing claims after the resolution plan has been accepted by the COC. 24. We have thus come to the conclusion that NCLAT's impugned judgment [Mukul Kumar v. RPS Infrastructure Ltd., 2021 SCC OnLine NCLAT 648] cannot be faulted to reopen the chapter at the behest of the appellant. We find it difficult to unleash the hydra-headed monster of undecided claims on the resolution applicant." 10. The learned Counsel for the Appellants relied on judgment of this Tribunal in K V Developers Private Limited. That was a case where claims could not be filed by the Homebuyers, but the claims....