TaxTMI 
TaxTMI 
TaxTMI 
2025 (1) TMI 229
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....ugned order, the Adjudicating Authority has dismissed the I.A. No. 1162/2024 filed by the Appellant-M/s CSA Corporation Pvt. Ltd. against the Resolution Professional-Respondent for rejection of their claim of Rs. 18,50,63,527/- in the CIRP process of the Corporate Debtor. Aggrieved by the impugned order, the present appeal has been preferred by the Appellant. 2. Coming to the factual matrix of the matter and the salient sequence of events, it is relevant to note that the Appellant-M/s CSA Corporation Pvt. Ltd. had entered into a Consortium Agreement with the Corporate Debtor-UM Green Lighting Pvt. Ltd. on 12.10.2016 followed by a subsequent Joint Venture Agreement on 01.05.2017. This Consortium had bagged contracts for four street-lighting projects which however could not be completed following which the Appellant sent a Notice for Non-Performance to the Corporate Debtor on 20.09.2021. On 15.11.2021 the Appellant also filed a criminal complaint against the Corporate Debtor for over-invoicing and false invoicing under the relevant provisions of Criminal Procedure Code before the Chief Judicial Magistrate (CJM), Dimapur alleging that the Corporate Debtor had failed to perform their ....
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....owledge of the Corporate Debtor by the Appellant several times, however, the Corporate Debtor failed to respond appropriately, compelling them to file a criminal proceeding against the Corporate Debtor before the CJM Dimapur. The CJM, Dimapur issued an order on 10.10.2022 holding that imposition of moratorium on account of CIRP of the Corporate Debtor will not apply to the ongoing criminal proceedings. However, this order of the CJM, Dimapur was challenged before the Hon'ble High Court of Gauhati which by an order dated 20.07.2023 quashed the criminal proceedings and held the dispute to be contractual and of a civil nature. Elaborating further it was submitted by the Ld. Sr. Counsel for Appellant that thereafter the Appellant chose to prefer its claim before the RP in Form-F. The said claim was filed on 12.09.2023 based upon non-performance and breach of contract by the Corporate Debtor. The Appellant raised a claim of Rs 18.50 Cr on account of the losses incurred due to inflated invoices, extra-additional bills raised, billing of non-performed AMC and losses on expected projected profits along with break-up in the claim Form-F. 5. It is the case of the Appellant that the R....
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....ained by the Corporate Debtor. Particular attention was drawn to Para 53 of the said judgement which reads as below: "53. Duties of Interim Resolution Professional have been prescribed under Section 18 and as per clause (b) therein the Interim Resolution Professional is required to receive and collate all the claims submitted by creditors to him pursuant to the public announcement made under Section 13 r/w Section 15. The claim of the parties should be as on the date of initiation of the Corporate Insolvency Resolution Process (date of order of admission and moratorium). Any person who has right to claim payment, as defined under Section 3(6), is supposed to file the claim whether matured or unmatured. The question as to whether there is a default or not is not to be seen." It was submitted that the RP had acted in a hyper-technical manner and perfunctorily overlooked the claims of the Appellant. Inspite of being fully aware of the breach of the contractual agreement by the Corporate Debtor, the RP failed to take into account the contingent claim arising thereof. 7. It is also the contention of the Appellant that they had filed their claim before the approval of the resolution....
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....t damages, the RP was clearly not endowed with adjudicatory powers to verify and decide on the admittance of claims of such nature. It was further pointed out that the RP had issued a Demand Notice on 05.06.2023 under Section 8 of IBC to the Appellant for making a payment of Rs 9.35 Cr. being admitted dues on the part of the Appellant as borne out from the books of accounts. The Appellant never replied to this Demand Notice. Until then the Appellant had not even filed its claims against the Corporate Debtor. On 25.06.2023, the RP filed an application under Section 9 of the IBC against the Appellant. Faced with the Section 9 application, the Appellant filed its claims in Form-F for Rs 18.50 Cr. by rustling up grounds of liquidated damages arising out of breach of contract. It is the contention of the RP that the claim of the Appellant was a counterpoise to the Section 9 proceeding initiated by the RP against the Appellant. 9. Advancing their arguments further it was pointed out that the claims could not have been admitted as they were filed after a delay of 548 days which was severely belated. The RP had published the Information Memorandum on 19.07.2023. The claim in Form-F was fi....
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....ns of IBC and CIRP Regulations, 2016 framed thereunder: "Section 18. Duties of interim resolution professional.- (1) The interim resolution professional shall perform the following duties, namely:- (a) ......... (b) receive and collate all the claims submitted by creditors to him, pursuant to the public announcement made under sections 13 and 15; CIRP Regulations 10. Substantiation of claims.- The interim resolution professional or the resolution professional, as the case may be, may call for such other evidence or clarification as he deems fit from a creditor for substantiating the whole or part of its claim. 12. Submission of proof of claims.- (1) A creditor shall submit claim with proof on or before the last date mentioned in the public announcement. Provided that a creditor, who fails to submit claim with proof within the time stipulated in the public announcement, may submit his claim with proof to the interim resolution professional or the resolution professional, as the case may be, up to the date of issue of request for resolution plans under regulation 36-B or ninety days from the insolvency commencement date, whichever is later: Provided further tha....
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....dator, has no adjudicatory powers. As such, the undersigned is unable to exercise such powers and admit a claim arising out of an alleged breach of contract by the Corporate Debtor, without a specific judicial order to this effect. 3. It is further noted from the books of accounts of the Corporate Debtor that in fact, the alleged Claimant owes the Corporate Debtor an amount of INR 9,35,97,426/- where the Corporate Debtor had raised specific invoices from time to time against the purported Claimant, however, the same stand defaulted as on date. As you are aware, the undersigned was also constrained to file an Application under Section 9 of the Insolvency and Bankruptcy Code, 2016, seeking initiation of Corporate Insolvency Resolution Process (CIRP) of the alleged Claimant in view of such default, which is currently sub judice before the Hon'ble National Company Law Tribunal, Guwahati Bench. 4. It is therefore clear that the alleged Claimant has filed his claim in the CIRP of the Corporate Debtor as an afterthought, merely as a backlash to the commencement of Section 9 proceedings against such alleged Claimant by the undersigned, in his capacity as the Resolution Profession....
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....or having dealt with the claims and rejected the same within 3 days. We are not impressed by this plea of the Appellant. IBC is a time bound process and the RP cannot be blamed for dealing with the claim within three days as the prescribed outer time-period to decide on the claims is only seven days. Furthermore, keeping in view that the resolution plan was already in an advanced stage for being placed before the CoC for its approval, the RP cannot be faulted for taking a swift and timely decision on the claim. There is no material before us to either believe that the RP acted in a manner hurriedly pushing the plans for consideration of the CoC or having deliberately orchestrated to stall the claim of the Appellant. 18. This brings us to the related contention raised by the Appellant that the RP could not have rejected their claim in such a mechanical manner when the claims were well captured in Form-F wherein the claim amount was also duly quantified by them. It is the case of the Appellant that any person who has right to claim payment is supposed to file the claim whether matured or unmatured as decided in the Export Import Bank judgement supra. 19. When we look at the reason ....
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....of the Appellant to be remiss as due diligence was not shown towards satisfying the prescriptive requirement of filing their claims within the 7 days period or the extended period of 90 days. Even clarifications sought from the Appellant by the RP towards payments due from them to the Corporate Debtor remained unheeded. The Appellant's contention that it was not aware that the Corporate Debtor was admitted into CIRP is also not found sustainable since during the hearing before CJMDimapur, the counsel for the Corporate Debtor had brought to the knowledge of the CJM about the commencement of CIRP of Corporate Debtor and during this hearing the counsel of Appellant was very much present. Thus, as early as on 04.07.2022, the Appellant had become aware of the CIRP initiation against the Corporate Debtor as is evident from the order of CJM-Dimapur as placed at page 74 of the Reply Affidavit of the Respondent, which being a matter of court record has also not been controverted by the Appellant. It is therefore an undisputed fact that the Appellant was aware of the ongoing CIRP process of the Corporate Debtor much before he opted to file his claims. Hence, the Appellant cannot deny the fac....
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....eme Court in the case of State Tax Officer Vs Rainbow Papers Ltd. supra is also not applicable in the facts of the present case since in that case it was held that delay in filing a claim cannot be a sole ground for rejecting a claim while in this case besides delay there are other grounds raised for rejection of the claims. 25. It is a well settled precept that there is a catena of judgements of the Hon'ble Apex Court wherein it has been held that no surprise claims should be flung on the resolution applicant. The logic behind this precept is that all necessary details should find place in the Information Memorandum so that the potential resolution applicants are fully aware of the liabilities that they may have to provide for in their resolution plan towards satisfying whole or part of such liabilities and to also revive the corporate debtor. In the present case too, when the claims have been filed belatedly after 548 days and that too the claims arise from damages and breach of contract which according to the Appellant is admittedly contingent, the RP's action to reject the claim by way of a reasoned reply to the Appellant cannot be put to fault. We have already held that the p....