TaxTMI 
TaxTMI 
2025 (2) TMI 807
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....dismissed IA No. 1795 of 2023 filed by the Appellant and rejected the claim submitted by the Appellant before the Liquidator. Aggrieved by the impugned order, the present appeal has been preferred by the Appellant. 2. The sequence of dates and events of present matter which are relevant to be noticed for deciding the appeal are as under: The Corporate Debtor-M/s Varun Resources Ltd. was admitted into Corporate Insolvency Resolution Proceeding ("CIRP" in short) on 14.06.2017. On the request of the Resolution Professional ("RP" in short), the Appellant supplied bunkers, fuels, fresh water, oil etc. to three vessels owned by the Corporate Debtor from 23-27 July 2017 besides also procuring the same from certain sub-contractors namely Gujarat Marines and Dushyant Patel. For these supplies, three invoices were raised by the Appellant for an aggregate principal sum of USD 173,182.97. The total principal amount of claim of USD 173,183.17 had also been accepted by the Respondent as their liability towards supplies made for the three vessels namely: Vamadeva USD 37200. Shubhatreya USD 41854.20 Mahatreya USD 94128.97 Total USD 173,183.17 ....
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....on of the matter. The Settlement Agreement of the two sub-contractors was executed in the Admiralty Court on 27.04.2023 and the Hon'ble Bombay High Court decreed the suits in terms of the Settlement Agreement on 28.04.2023. On 13.06.2023, the Respondent filed the reply before the Adjudicating Authority objecting to the maintainability of IA No. 1795 of 2023 and stating that the Appellant was entitled to only USD 43,691.17. On 17.10.2023, the Adjudicating Authority passed the impugned order rejecting IA No.1795 of 2023. Aggrieved by the impugned order, the present appeal has been preferred. 3. Making his submissions, Mr. Lzafeer Ahmad, Ld. Counsel for the Appellant submitted that the Appellant had provided bunker and essential supplies to the Corporate Debtor on the request of the RP for use in their vessels during the CIRP period. It was further submitted that the Appellant had provided the supplies on the assurance that payment would be made within 15 days from the date of delivery. The supplies were made between 23-27 July 2017 and three invoices were raised totalling USD 173,182.97. It was vehemently contended that the invoices stipulated t....
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....rically mentioned in the invoices. The terms and conditions stipulated in the invoices once accepted cannot be modified by the Liquidator. In support of their contention, reliance has been placed on the judgement of Dakshin Gujrat VIJ Company Ltd. Vs M/s ABG Shipyard Ltd. (2018) SCC Online NCLAT 576 wherein it has been stated that if any costs get incurred towards supply of essential services during the period of moratorium, it may be accounted towards CIRP costs. Hence, the claim of the Appellant should have been construed by the Adjudicating Authority as CIRP costs as per invoice terms and should have been given due treatment under Section 53 of IBC. It was contended that all CIRP costs have to be paid in priority in full as per Section 53(1)(a) of the IBC and could not have been unilaterally reduced/modified by the Liquidator. 6. Elaborating further, it was submitted that the Liquidator did not release any payment and instead sent a letter to the Appellant on 30.09.2022 referring to claims made by Gujarat Marines and Dushyant Patel who had filed their cases under the Admiralty jurisdiction before the Hon'ble Bombay High Court. The Liquidator further sent an e-mail on 20.02.20....
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....ion 16 read with Regulation 12(2)(a) of the IBBI (Liquidation Process) Regulations, 2016 clearly lays down that the claims of any stakeholder gets crystallised on the liquidation commencement date. The Respondent stated that the interest component was never agreed between the parties nor had the Appellant claimed interest in their claim advanced at the time of filing their belated claim before the Liquidator on 22.03.2019. The claim for interest in the present case was made much later such that it was not only after the liquidation commencement date but much after the last date for filing of claims. In the present case, while the liquidation had commenced on 04.12.2018, the alleged claim for interest was raised for the first time by debit notes on 25.06.2019. Moreover, seen from the perspective of the date of invoices in respect of supplies made, the alleged claim for interest was made nearly after about 2 years therefrom. 9. It was also asserted by the Respondent that after deducting the payments made to the sub-contractors-Gujarat Marines and Dushyant Patel in terms of the Admiralty case, the Appellant was entitled only for a sum of USD 43,691.17 which the Appellant was unwill....
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.... became available. The Liquidator cannot be allowed to go back from the mutually agreed terms and conditions for provision of services particularly when the services had been accepted without any demur or objections. 12. It is the contra case of the Respondent that the belated claim of the Appellant by including interest cannot be accepted in the liquidation proceedings and therefore the Appellant cannot claim entitlement to the same under the waterfall mechanism. It is the case of the Respondent that interest component was never agreed between the parties nor had the Appellant claimed any interest at the time of filing their claim before the Liquidator. The Appellant for the first time claimed interest component on 25.06.2019 much after the date of supply of goods. All the correspondences exchanged before this date between the Appellant and Respondent show that no demand was made with regard to interest component. The claim for interest is an afterthought. Submission was pressed that reliance on invoices for interest is nothing but a unilateral document that has no binding effect on the Respondent. Having not added interest at the time of filing belated claim which claim stood ....
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....uidator. Neither did the Appellant file their claims even during the extended period sought by them. Instead, the Appellant filed their belated claim on 23.03.2019 which claim was rejected by the Liquidator on 30.03.2019. It may help us to better appreciate the issue at hand, if we peruse the communication sent by the Liquidator on 30.03.2019 in response to the claim filed by the Appellant which reads as under: "Sanjeev Maheshwari <[email protected]> To : Asean | Accounts <[email protected]>, Jalal Shariff <[email protected]>, [email protected], [email protected] Dear Sir, We are in receipt of your claim w.r.t Varun Resources Limited (VRL). On prima facie perusal of the same, you are requested to kindly note/ send the following documents: 1. Claims should be only upto date of liquidation i.e. 4th December 2018 and not thereafter. 2. Account statement from date of first bill till 4th December 2018. 3. Documentary evidence of VRL agreeing to the interest rate. 4. Soft copies of the documents sent. You are also informed that as per the Public advertisement released on 6th December 2018 t....
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....ide on the sustainability of this contention, we need to first notice the provisions of Section 42 of IBC which reads as under: Section 42: Appeal against the decision of liquidator- A creditor may appeal to the Adjudicating Authority against the decision of the liquidator accepting or rejecting the claims within fourteen days of the receipt of such decision. In terms of the above statutory construct, the claim of creditors is to be considered and examined by the Liquidator in the liquidation proceeding under Section 42 of the IBC. Section 42 of IBC further provides that a creditor may appeal against the decision of the Liquidator accepting or rejecting claims within 14 days of the receipt of such decisions. Section 42 further clearly provides that in the event of any dispute raised with regard to claim between the stakeholder claimant and the Liquidator, the matter is required to be adjudicated by the Adjudicating Authority. 20. When we see the sequence of events in this case, we find that even after the claim filed by the Appellant by adding the interest component stood rejected by the Liquidator, this decision was never challenged before the Adjudicating Authority....
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.... on 30.09.2022 and subsequently another e-mail on 20.02.2023 seeking no objection from the Appellant for settlement of the dues of Gujarat Marines and Dushyant Patel. In this communication of 20.02.2023, the Liquidator called upon the Appellant to confirm the settlement amount of USD 129,492 to enable the Liquidator to deal with these claims made by the sub-contractor. The Appellant did not give their NOC with respect to the settlement of dues of the sub-contractor from the Admiralty Court proceedings. Instead in their response on 21.02.2023, the Appellant stated that their outstanding amount had increased to USD 364,257.29 on account of further interest which had accumulated on delayed payments. Submission was pressed that the Appellant was delaying and derailing the liquidation of the Corporate Debtor. 24. The issue before us is the tenability of the contention of the Appellant that it was being forced by the Liquidator to modify/withdraw their claim. 25. From the material on record, it clearly evident that the sub-contractors wanted a settlement in respect of their dues. The Liquidator in their communication of 20.02.2023 admitted the claim of the Appellant after deducting....