AI Drafter 
TaxTMI 
TaxTMI 
2024 (9) TMI 1912
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....re: (i) The Appellant and its group companies entered into Memorandum of Understanding ("MoU") dated 20.01.2014 with the Corporate Debtor SBS Transpole Logistics Private Limited. A Shareholders' Agreement was also entered between the Appellant and the Corporate Debtor dated 31.07.2014. (ii) The Promoters of the Corporate Debtor along with the Corporate Debtor initiated arbitration against Global Enterprise Logistics Pte. Ld. For breach of MoU, SPA and SHA on 25.02.2019. (iii) On an Application filed under Section 9, the Corporate Debtor was admitted into the insolvency by an order of the Adjudicating Authority dated 04.09.2019. Respondent - Mohan Lal Jain was appointed as Interim Resolution Professional ("IRP"). The Adjudicating Authority by an order dated 16.12.2020 directed for liquidation of the Corporate Debtor and Respondent - Mohan Lal Jain was appointed as Liquidator. (iv) A public announcement was made by the Liquidator on 20.12.2020 inviting claims for the liquidation. Last date for submission of the claim was 15.01.2021. (v) In the arbitral proceedings between the Appellant and the Corporate Debtor, the Resolution Professional ....
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....he Arbitral Tribunal that he wants to continue the arbitration proceedings on behalf of the Corporate Debtor. It is submitted that when RP was participating in the arbitration proceedings, which culminated into award of cost, the Appellant's claim, cannot be denied. It is submitted that any claim, which arises subsequent to liquidation commencement date, can also be admitted, subject to only rider that admission of claim shall not effect the distribution already made. The learned Counsel for the Appellant in support of her submission has relied on judgment of NCLT, Mumbai in Company Appeal No. 12 of 2023 in the matter of Securities and Exchange Board of India vs. Vishal Ghisulal Jain, decided on 14.09.2023, where the claim, which arose after the liquidation commencement date was directed to be entertained. The learned Counsel for the Appellant has also relied on certain other judgments of the NCLT, Hyderabad Bench and Kolkata bench. It is submitted that Adjudicating Authority committed error in dismissing the Company Appeal filed by the Appellant under Section 42 of the IBC. 5. Learned Counsel for the Respondent refuting the submissions of learned Counsel for the Appellant submi....
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....w Tribunal, New Delhi Bench-II in IA No. 1480/ND/2019, liquidation of the Corporate Debtor (for short "CD") M/s. SBS Transpole Logistics Pvt. Ltd. was ordered, and I was appointed as the Liquidator. Thus, 16.12.2020 is the "liquidation commencement date." (ii) I as the Liquidator had issued public announcement in Form B of Schedule-II of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, (for short, 'Liquidation Regulations') on 20.12.2020, calling upon the stakeholders of the CD to submit their claims with proof on or before 15.01.2021. (iii) The present claim by SBS Holdings Inc., Japan has been submitted in Form G of Schedule II to the Liquidator by email on 27.03.2021. (iv) The subject claim now filed did not exists on 16.12.2020, the liquidation commencement date, and the same can be considered to have got created on 06.03.2023, the date when the memorandum of correction of the arbitral award was issued, or at best on 22.12.2022, the date of the arbitral award, on which the claim is based. 3. In terms of relevant provisions of the aforesaid Liquidation Regulations, the stakeholders are called upon t....
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....uestion, we need to examine the statutory scheme under the IBC as well as Liquidation Regulations. IBBI (Liquidation Process) Regulations 2016 have been framed, which apply to liquidation process under Chapter III of Part II of the IBC. Regulation 12, deals with 'Public announcement by the liquidator', which is as follows: "12. Public announcement by liquidator. (1) The liquidator shall make a public announcement in Form B of Schedule II within five days from his appointment. (2) The public announcement shall- (a) call upon stakeholders to submit their claims or update their claims submitted during the corporate insolvency resolution process, as on the liquidation commencement date; and (b) provide the last date for submission or updation of claims, which shall be thirty days from the liquidation commencement date. (3) The announcement shall be published- (a) in one English and one regional language newspaper with wide circulation at the location of the registered office and principal office, if any, of the corporate debtor and any other location where in the opinion of the liquidator, the corporate debtor conducts material busi....
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...., he is entitled to distribution of the admitted claim reduced as follows- X/ (1+r) n where- (a) "X" is the value of the admitted claim; (b) "r" is the closing yield rate (%) of government securities of the maturity of "n" on the date of distribution as published by the Reserve Bank of India; and (c) "n" is the period beginning with the date of distribution and ending with the date on which the payment of the debt would otherwise be due, expressed in years and months in a decimalized form." 13. Regulation 28 provides that a person may prove for a claim, whose payment was not yet due on the liquidation commencement date and is entitled to distribution and which amount is to become due on future date. Regulation 28 contemplate distribution of such claim as per sub-regulation (2) of Regulation 28. A formula is also provided under sub-regulation (2) of Regulation 28 for distribution with regard to claim, which is to become due in future date. Regulation 28 is only Regulation, which deals with a claim, which claim is not due on the liquidation commencement date, but the claim has to be filed, by such claimant. Regulation 28 being the only Regula....
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....r procedure and manner in which Liquidation Process begins claim are received and distribution of the amount take place to various stakeholders. Regulation 12 provides for public announcement by the Liquidator calling upon the stakeholders to submit their claims or update their claims submitted during the Corporate Insolvency Resolution Process. Regulation 16 deals with submission of claims. Regulation 16 is as follows: "16. Submission of claim. (1) A person, who claims to be a stakeholder, shall submit its claim, or update its claim submitted during the corporate insolvency resolution process, including interest, if any, on or before the last date mentioned in the public announcement. (2) A person shall prove its claim for debt or dues to him, including interest, if any, as on the liquidation commencement date." 15. Regulation 16(2) requires to prove his claim as on the Liquidation Commencement Date. Claims by the Financial Creditor has to be filed in Form D as per Regulation 18. Regulation 18 is as follows: "18. Claims by financial creditors. (1) A person claiming to be a financial creditor of the corporate debtor shall submit proof of....
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....he Appellant claiming to be interest in addition to the claim as filed by it in Form D till the date of realization of receipt of the sale, cannot be permitted to be retained by the Appellant and the Adjudicating Authority has rightly passed the order allowing application filed by the Liquidator to hand over the additional amount to the Liquidator. Learned Counsel for the Appellant submits that out of Rs. 1.84 Crores, amount of Rs. 20 Lakhs have already been paid." 18. The learned Counsel for the Appellant submits that the above judgment is distinguishable, since in the above case, the claim was filed by the Bank for principal and interest as on liquidation commencement date, whereas in the present case, the claim has been filed subsequent to liquidation commencement date. The judgment of this Tribunal as noted above, after noticing the statutory scheme under the Liquidation Regulations has held that "When a statute provides for liquidation commencement date as a date up to which claims can be filed and proved, no claim thereafter can be entertained by the Liquidator". The above judgment fully supports the submission of learned Counsel for the Respondent. 19. The ....
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....NCLT in paragraph 6, held following: "6. We have perused the order of the liquidator, the liquidator has simply rejected the claim on a mere ground that the same was not submitted with the time set by him, without going into the reasons why it was not submitted in time. When the country was reeling under COVID-19 pandemic and restrictions like lockdown, social distancing and home isolation etc., it is natural that things such as filing of the petition in time may not be done in time. Therefore, the reasons pleaded by the petitioner that prevented the petitioner from submitting the claim within time, ought to have been considered by the liquidator while taking decision on whether or not to condone the delay instead of simply rejecting the petition on a mere ground that the same was not submitted within time. We are convinced by the reasons put forth by the petitioner for the delay in filing the claim. We therefore allow the petition and condone the delay." 22. The above judgment was also not on the issue, which has arisen in the present Appeal, as to filing of claim, which has arisen after the liquidation commencement date. The judgment of NCLT relied by learned Counsel ....