2022 (1) TMI 512 - Tri - Insolvency and Bankruptcy

Rejection of interest amount claimed by the Applicant/Operational Creditor - Section 42 of the Insolvency and Bankruptcy Code 2016 - HELD THAT - It was the duty of the Applicant to produce the documents or evidence or clarification sought by the Liquidator in order to verify his claim for interest. In this case, even though the Applicant sought interest from the Liquidator, he could not produce any document that there was an agreement with the Corporate Debtor for charging interest on the delayed payments before they started purchasing materials from the Applicant. Moreover, even though the impugned order was passed by the Liquidator on 17.03.2021, this Application has been filed on 20.10.2021 beyond the period of 14 days for appeals under Section 42 of IBC. There are no error in the order passed by the Liquidator rejecting the interest claimed by the Operational Creditor, warranting interference by this Tribunal - application dismissed.

Issues:
1. Rejection of interest amount claimed by the Operational Creditor in liquidation proceedings.
2. Failure of the Liquidator to consider certain expenses incurred by the Operational Creditor.
3. Allegations against the Liquidator for not enquiring about personal properties and Personal Guarantors of the Corporate Debtor.
4. Failure of the Liquidator to pursue the sale of properties of the Guarantors for debt recovery.
5. Failure of the Liquidator to take action against suspended directors for alleged theft of company records.
6. Dispute over the claim of interest by the Operational Creditor based on MSME status and invoices.
7. Timeliness of the application filed under Section 42 of the Insolvency and Bankruptcy Code, 2016.

Analysis:
1. The Operational Creditor filed an application seeking to set aside the order rejecting the interest amount claimed. The Liquidator rejected the interest portion of the claim due to lack of documentary evidence proving the agreement for interest payment before material purchases. The Tribunal found no error in the Liquidator's decision and dismissed the application as it was filed beyond the 14-day appeal period under Section 42 of the IBC.

2. The Operational Creditor alleged that the Liquidator failed to consider expenses incurred towards the initiation of CIRP, which should have been reimbursed as per Section 53 of the IB Code. The Liquidator's decision to transfer assets without considering the Operational Creditor's property rights was also contested. However, the Tribunal did not find grounds to interfere with the Liquidator's actions.

3. The Operational Creditor accused the Liquidator of neglecting to inquire about personal properties and Personal Guarantors of the Corporate Debtor, as required by the IBC. The Liquidator's focus on selling only the Corporate Debtor's assets was criticized, with claims that pursuing Guarantors' properties could have facilitated debt recovery.

4. The Operational Creditor further argued that the Liquidator should have taken steps to sell the Guarantors' properties to enable debt recovery. Allegations were made against the Liquidator for favoring the Corporate Debtor and not pursuing all avenues for debt realization, impacting the Operational Creditor's ability to recover dues.

5. The Operational Creditor raised concerns about the Liquidator's handling of the situation where the company records were allegedly taken by suspended directors. The Operational Creditor contended that the Liquidator should have taken legal action against the directors for theft of confidential information, which could have affected the liquidation process.

6. Disputes arose regarding the Operational Creditor's claim of interest based on MSME status and invoices. The Liquidator argued that the Operational Creditor failed to provide sufficient evidence to support the interest claim, leading to the rejection of a significant portion of the claimed amount. The Tribunal upheld the Liquidator's decision in this regard.

7. The timeliness of the application filed under Section 42 of the IBC was questioned by the Liquidator, citing the limitation period of 14 days. The Liquidator contended that the application was filed beyond the prescribed period, rendering it ineligible for consideration. The Tribunal agreed with the Liquidator's argument and dismissed the application on this ground.

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