2021 (6) TMI 273 - Tri - Insolvency and Bankruptcy

Issuance of necessary direction to the Resolution Professional for acceptance of the complete claim of the applicant - Creditor in a class - verification of claims cannot be done on the ground that the payment was made in cash and the books of accounts of the Corporate Debtor were not made available by the Suspended Board of Directors of the Corporate Debtor - Section 60(5)(b) of the Insolvency Bankruptcy Code, 2016 - HELD THAT - The Regulation 8A(2) of the IBBI Corporate Persons Regulation, stipulates the modes by which, the existence of debt due to a creditor in class may be proved. Further if the records are not available with an information utility, then it can also be proved by other relevant documents including an agreement to sale, letter of allotment, and receipt of payment made - Here in the case in hand, it is not the case of the applicant that he is not a creditor in a class. Only dispute is in respect of the quantum of payment made by him and in support of that he has filed the photo copy of the money receipts issued by the Corporate debtor. A liquidator under the law is empowered to admit or reject the claim in whole or in part and a time is also prescribed under Regulation 29 of the IBBI Liquidation Regulations to decide the claims, i.e. within 30 days from the last date of the receipt of the claims. The Regulation 29 (1) of the IBBI Liquidation Regulations says that within thirty days from the last date for receipt of claims, the Liquidator may either admit or reject the claim and Regulation 29(2) gives right to the creditor to file an appeal to the Adjudicating Authority against the decision of the liquidator under section 42 of the IB Code 2016 - the legislature has made a provision for appeal against the order of admission or rejection passed by the liquidator and there is no such provision of appeal in case of collation of claims by the IRP/RP is concerned. The applicant has duly submitted the claim supported with the relevant documents and money receipts issued by the Corporate Debtor but the RP has acted beyond the duty/power vested with him under the law - Application disposed off.

Summary

Issues Involved:
1. Acceptance of the complete claim of the applicant by the Resolution Professional (RP).
2. Verification and genuineness of the claim amounting to ?7,00,000 paid in cash.
3. Adjudicatory powers of the Resolution Professional.
4. Impact of the approved resolution plan on pending claims.

Issue-wise Detailed Analysis:

1. Acceptance of the complete claim of the applicant by the Resolution Professional (RP):
The applicant filed a petition under Section 60(5)(b) of the Insolvency & Bankruptcy Code, 2016, seeking directions for the RP to accept the complete claim of ?9,00,000. The RP had admitted only ?2,00,000 and provisionally accepted ?7,00,000, subject to verification. The applicant argued that the RP had failed to collate the claims based on the available proofs, causing irreparable loss.

2. Verification and genuineness of the claim amounting to ?7,00,000 paid in cash:
The RP contended that the ?7,00,000 paid in cash could not be verified due to the absence of the Corporate Debtor's books of accounts. The applicant provided photocopies of money receipts and bank statements showing cash withdrawals, but the RP was apprehensive about the genuineness of these receipts. The tribunal noted that the RP had not conclusively determined the receipts to be forged and that the applicant had provided sufficient secondary evidence under Section 63 of the Indian Evidence Act, 1872, and Regulation 8A(2) of the IBBI Corporate Persons Regulations.

3. Adjudicatory powers of the Resolution Professional:
The tribunal referred to the Supreme Court's decision in 'Swiss Ribbons Pvt. Ltd. & Ors' and the NCLAT's decision in 'Navneet Kumar Gupta vs. Bharat Heavy Electricals Limited', which clarified that the RP has administrative, not quasi-judicial, powers. The RP's role is to collate claims based on available proofs, not to adjudicate them. The tribunal found that the RP had exceeded his duty by not finalizing the claim based on an apprehension of forgery.

4. Impact of the approved resolution plan on pending claims:
The RP argued that the resolution plan approved by the CoC extinguished all undecided claims and that the applicant could substantiate his claim within 60 days from the approval date. The tribunal noted that the applicant had filed the claim within the prescribed time and that the RP had provisionally accepted it. Therefore, the resolution applicant must have been aware of the pending verification. The tribunal distinguished the current case from other cases cited by the RP, where claims were raised after the approval of the resolution plan.

Conclusion:
The tribunal concluded that the RP had erred in law by not finalizing the applicant's claim based on the provided documents. The RP was directed to verify the claim of ?9,00,000 based on the money receipts and bank statements and inform the resolution applicant accordingly. The application was disposed of with these directions.