2019 (9) TMI 1434 - Tri - Insolvency and Bankruptcy

Condonation of the delay in filing claim - main contention of the Learned Counsel for Applicant that Resolution Professional simply rejected the claim of Applicant on the ground that the same was filed before him beyond the time prescribed under Regulation 12 (2) of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - section 60 (5) of the Insolvency and Bankruptcy Code, 2016 read with rule 11 of NCLT Rules - HELD THAT - It is an undisputed fact that Applicant filed separate petition against the Corporate Debtor under Section 9 of IBC. When the said petition was pending, the petition filed by Financial Creditors against the Corporate Debtor was admitted on 09.11.2018 and CIRP commenced from 09.11.2018. The Applicant had withdrawn the petition filed against Corporate Debtor under Section 9 of IBC, 2016 on the ground, CIRP already started against the Corporate Debtor and Applicant made the claim before the IRP/RP. It is true, claim was made beyond 90 days. However, Applicant already moved the Tribunal by filing a petition under Section 9 of IBC, 2016 against the Corporate Debtor for initiating CIRP when this matter was pending. Even after commencement of CIRP against the Corporate Debtor, the case of Applicant is that it was not aware of initiation of CIRP against Respondent No. 1 / Corporate Debtor. The Applicant allegedly came to know in March 2019 that CIRP started against the Corporate Debtor - therefore, it had withdrawn the Petition and made a claim before the Resolution Professional. The crucial time which is to be taken is the date on which the Applicant filed the claim before the Resolution Professional. The claim was made on 15.04.2019 as per the Resolution Professional. By then, the Resolution Plan was not approved by the CoC and CIRP was pending. When such is the case, the Resolution Professional ought to have considered the claim without rejecting the claim on the ground that it was filed beyond 90 days - In this case, the Applicant already moved the Tribunal under Section 9 of IBC to initiate CIRP against the Corporate Debtor. Secondly, the Applicant had withdrawn the Petition since CIRP started against Corporate Debtor. In this case the Applicant made the claim on 14.05.2019 before the Resolution Professional when CIRP process was pending. No resolution plan was approved by then. So, on these grounds, delay in filing the claim can be condoned and direction can be given to the Resolution Professional to consider the claim on its merits and take a decision. Application disposed off.

Summary

Issues Involved:
1. Condonation of delay in filing the claim by the Operational Creditor.
2. Admissibility of the claim by the Resolution Professional.
3. Applicability of precedents and legal provisions to the current case.
4. Impact of the resolution plan approval on the claim.

Issue-Wise Detailed Analysis:

1. Condonation of Delay in Filing the Claim:
The Applicant, an Operational Creditor, filed an application seeking condonation of delay in submitting its claim under Section 60(5) of the Insolvency and Bankruptcy Code, 2016, read with Rule 11 of the NCLT Rules. The delay occurred because the Applicant was unaware of the commencement of the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. The Applicant learned about the CIRP in March 2019 and subsequently filed its claim on April 15, 2019, which was beyond the 90-day period stipulated under Regulation 12(2) of the CIRP Regulations.

2. Admissibility of the Claim by the Resolution Professional:
The Resolution Professional rejected the claim on the grounds that it was submitted after the 90-day period from the insolvency commencement date. The Applicant argued that the claim should have been admitted as the CIRP was still pending, and no resolution plan had been approved by the Committee of Creditors (CoC) at the time of filing the claim. The Tribunal noted that the claim was indeed filed beyond the 90-day period but emphasized that the Resolution Professional should have considered the claim since the CIRP was ongoing and no resolution plan had been approved.

3. Applicability of Precedents and Legal Provisions:
The Applicant relied on a decision by the Hon'ble NCLT, Principal Bench, New Delhi, in CA. No. 727(PB)/2019, which held that a claim made after the 90-day period could be considered if the resolution plan had not yet been approved. The Tribunal agreed with this precedent, stating that the Resolution Professional should have considered the claim as the resolution plan was not approved at the time of claim submission. The Tribunal also referenced the case of Twenty First Century Wire Rods Ltd, where a similar delay was condoned, and the claim was directed to be considered by the Resolution Professional.

4. Impact of the Resolution Plan Approval on the Claim:
The Tribunal acknowledged that the CoC had approved the resolution plan on August 2, 2019, and the Resolution Professional had filed an application for its approval on August 6, 2019. Despite this, the Tribunal directed the Resolution Professional to consider the Applicant's claim on its merits and condone the delay. The Tribunal clarified that if the claim is admitted, it should be treated on par with the claims already admitted and form part of the resolution plan.

Conclusion:
The Tribunal disposed of the application by directing the Resolution Professional to consider the Applicant's claim on its merits and condone the delay in filing. The claim, if admitted, should be treated on par with other claims already admitted and included in the resolution plan.