2020 (11) TMI 1062 - Tri - Insolvency and Bankruptcy

Realization of claims against the CD which has already taken over by the Respondent No.2 - section 60 (5) of IBC, 2016 read with Rule 11 of the National Company Law Tribunals Rules, 2016 - HELD THAT - The present Applicant being an Operational Creditor has filed this application praying for setting aside the Resolution Plan approved by this Adjudication Authority on 07.12.2018 or to direct the Resolution Professional to pay its claim of Rs.1,21,86,626/- as the Applicant could not know about admission of the petition/CIRP/Approval of Resolution Plan because the R.P. had published notice inviting the claim at Registered and Corporate Office Areas only i.e. Guwahati and Kolkata. Resolution Professional should have also published the notice in the Newspapers in the city of Mumbai and Nasik as in these places the CD used to conduct business and also the Registered office of the OC (Mumbai) - this Applicant/OC had supplied materials during the period from 03.02.2010 till 28.08.2010 and the last payment was received by the Applicant on 11.12.2010. Hon ble Supreme Court in the matter of COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA OTHERS 2019 (11) TMI 731 - SUPREME COURT has held that a Successful Resolution Applicant cannot suddenly be faced with undecided claims after the resolution plan submitted by the Resolution Applicant has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by the successful resolution applicant. 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 CD. The prayer of the Applicant/OC for setting aside the Resolution Plan approved by this Adjudication Authority on 07.12.2018 or to direct the Resolution Professional to pay its claim of Rs.1,21,86,626/- is rejected - Application disposed off.

Summary

Issues:
- Application under Section 60 (5) of IBC seeking directions for claim realization against CD
- Alleged non-receipt of payment for supplied goods by the CD
- Filing of Company Petition for winding up CD
- Violation of IBC provisions by RP in making public announcement
- Prayer to set aside Resolution Plan or direct payment of outstanding dues
- Timeliness of filing claim by Operational Creditor
- Precedent from Hon'ble Supreme Court on resolution plan acceptance

Analysis:
- The applicant sought directions for realizing its claims against the Corporate Debtor (CD) under Section 60 (5) of IBC. The CD had allegedly not paid Rs.1,21,86,626 for goods supplied by the applicant, leading to a Company Petition for winding up the CD.
- The applicant claimed that the Resolution Professional (RP) violated IBC provisions by not properly announcing the initiation of Corporate Insolvency Resolution Process (CIRP), preventing the applicant from filing its claims.
- The applicant prayed to set aside the Resolution Plan or direct payment of outstanding dues. However, the RP had issued public notices at the CD's Registered and Corporate Offices, as required, and the applicant's claims were deemed untimely.
- The Hon'ble Supreme Court precedent emphasized the need for all claims to be submitted and decided before accepting a Resolution Plan to avoid uncertainties for successful resolution applicants.
- The Tribunal found no merit in the applicant's claim, noting that the RP had followed due process in announcing the CIRP. The applicant's lack of knowledge about the CIRP approval was deemed unconvincing given its previous actions against the CD.
- Consequently, the prayer to set aside the Resolution Plan or direct payment of dues was rejected, and the application was disposed of without costs.